Legal Views: Judgement Obtained Against A Dead Person Is A Nullity
By Trek Africa Newspaper
“… it is settled law that among other supervening events which may cause a pending suit to become defective is death (i.e. of a sole plaintiff or defendant or both to the suit, in this matter with regard to the instant sole respondent).
The simple reason being as in this case that the sole respondent cannot be or appear before the Court as there is in law no longer such respondent as a legal person as he, as contended by the appellants, has died before the judgment of the court below. His counsel, all the same, has pressed on with the proceedings in this matter regardless of the said supervening event; he has not informed the Court below as so provided in Order 3 Rule 30(1) of the Court of Appeal Rules 2002 and even then he has not applied formally to substitute living persons i.e. the appellants to continue the case before the said judgment as the cause of action survives and continues after the death of the sole respondent.
Otherwise, a Court must in the event of death of a sole defendant or plaintiff or both refuse to treat the proceedings as other than a nullity. That is to say, a judgment obtained against a dead person is a nullity. Akumoju v. Mosadolorun (1960) 9 NWLR 236 at 242.
In my opinion this is so at any stage when a Court becomes aware of a dead party. See: Daimler Co. v. Continental Tyre & CO. (1910) AC 307 at 337, and Lazard Brothers & Co. v. Midland Bank (1933) A.C. 289 at 296. In the context of death having supervened as alleged in this case, that is to say, on the death of the sole respondent, ordinarily an application for change of parties ought to have been made before the said judgment in compliance with Order 3 Rule 30(1) of the Court of Appeal Rules 2002. Vide; Kaduna Textile Ltd. V. Obi (1999) 10 NWLR (Pt.631) 138, C.C.B. (Nig) PLC. V. O’Silvawax International Ltd. (1999) 7 NWLR (Pt.609) 97 and Buitumi V. Fantami (1998) 13 NWLR (Pt.531) 264.
This has not happened here before the delivery of the said judgment and the appellants are now seeking to set it aside as a nullity. However, the Court below was unaware of the alleged death of the sole respondent in this case before its judgment. Moreover, it must be stated the Court below thus has become functus officio.”
