Whether a Party Substituted for a Deceased Defendant must Specifically Apply to be Substituted in a CounterClaim

CASE TITLE:      YUSUF v. MAISHANU & ANOR (2023) LPELR-60511(CA)

JUDGMENT DATE:      13TH JUNE, 2023

JUSTICES:                  TUNDE OYEBANJI AWOTOYE, JCA

JAMES GAMBO ABUNDAGA, JCA

KENNETH IKECHUKWU AMADI, JCA

DIVISION: KANO

PRACTICE AREA:          PRACTICE AND PROCEDURE

FACTS:

The appeal was filed in response to the decision of the High Court of Justice in Jigawa State in Suit No. JDU/07/2015. The Claimant/Appellant originally initiated the case on 5/10/2015, making several claims against the Defendants/Respondents. These claims included a declaration of ownership and possession of a specific piece of land, a declaration of trespass against the Defendants, an injunction to remove a hut erected by the Defendants on the disputed land, and a perpetual injunction to prevent further trespassing by the Defendants or anyone associated with them.

Additionally, the Claimant sought damages, specifically an order awarding One Million Naira (N1,000,000.00) as general damages against the Defendant and the cost of prosecuting the action.

However, after both parties presented their cases and filed their pleadings, the trial Judge ruled against the Claimant, resulting in the dismissal of their claims. Furthermore, the trial Judge considered a counter-claim submitted by the 1st Defendant and granted most of the reliefs sought therein. As a result, the Appellant, dissatisfied with this outcome, filed the current appeal.

ISSUES:

The appeal was determined on the following issues:

“1. Whether the lower Court was right when it made pronouncement on the counter-claim and entered judgment thereon in favour of the respondents.

2. Whether the lower Court has evaluated the set of evidence adduced before it properly”.

COUNSEL SUBMISSIONS:

Learned Counsel to the Appellant argued that the failure to substitute the 2nd Respondent as a counter-claimant in the suit was fatal. It was asserted that the counter-claim is a separate suit in itself, subject to the same rules as the original claim and defense. The learned Counsel cited the case of Atiba Iyalamu Saving & Loan Ltd V. Suberu & Anor (2018) LPELR- 44069(SC). The counsel further argued that the 2nd Respondent had not applied to the Court to prosecute their case as a counter-claimant, and no Court order to that effect was issued. It was emphasized that the Court had only substituted the 1st defendant with the 2nd Respondent as the defendant and not as the counter-claimant. Consequently, the Appellant’s Counsel contended that the purported counter-claim was not properly before the Court, and the trial Court was wrong to assume jurisdiction in making a determination on it.

On the other hand, the learned Counsel representing the 2nd Respondent argued that the trial Court was correct in making a pronouncement on the counterclaim because it had already granted the substitution of the deceased original Defendant’s name with that of the 2nd Respondent in the suit, which included the counter-claim.

Additionally, the Counsel for the 2nd Respondent asserted that the Appellant needed permission to raise and argue grounds 3 and 5, and no such permission was sought or obtained. The Counsel cited the case of Akinwale V. BON (2000) LPELR- 9917 (CA) in support of this argument. Finally, it was argued that grounds 3 and 5 were considered incompetent and should be struck out.

DECISION/HELD:

In the final analysis, the appeal was dismissed and the decision of the trial Court was affirmed.

RATIO:

PRACTICE AND PROCEDURE – SUBSTITUTION OF PARTIES: What the substitution of a deceased party entails; whether a party substituted for a deceased defendant inherits both the defence and the counter-claim

“Substitution of a deceased party principally involves the taking over of the case of the deceased. It is the taking over of the position of the deceased in a case.

In RE: APEH & amp; ORS (2016) 1-2 SC (PT. IV) page 60 TANKO MUHAMMAD JSC explained it thus:

“The essence of substitution generally is putting/placing a thing, in place of another for a purpose.”

His Lordship explained further:

“I think it is apt for me at this stage, to remind my noble lords, in a concise manner the general principle of law relating to substitution. When one puts something by way of replacement or change of another whether a person or a thing that would amount to substitution.”

To apply for substitution necessarily implies taking up the position of the person substituted including his whole entire case. See UGWU V. ARARUME (2007) 12NWLR (Pt. 1048, 365, OJO VS AKINSANOYE (2014) LPELR-22736 (CA), EJEZIE VS ANUWU (2008)12 NWLR PART 1101 Page 446 at 485.

The failure of the substituted party to specifically apply to be made a counter-claimant instead of a defendant simpliciter does not in my view obviate the fact that he by virtue of being substituted becomes the defendant and counter-claimant just as the person for whom he has been substituted. He steps into his position.

It is a party that can take the active part of withdrawing as a defendant or counter-claimant. It does not lie in the mouth of an applicant to apply to withdraw any of the pleadings or relief. Becoming a party in the action comes first before he decides to either continue or discontinue the counter-claim.

It needs be stated that the action of the Defendant survives him after his death. Hence the counter-claim did not fizzle out or become automatically terminated by reason of the death of the Defendant.

Therefore, by virtue of the order of substitution, the party substituted inherited both the defence and counter-claim. He is however left to take the initiative to terminate the counter-claim or continue with it after the substitution.

The failure of the 2nd Respondent to apply to be substituted as a counter-claimant did not change anything in view of his successful substitution in place of the deceased defendant.” Per AWOTOYE, J.C.A.