Whether Judgment Can Be Given in Favour or against a Dead Person

CASE TITLE: MAINSTREET BANK REGISTRARS LTD v. OGUNDIMU (2022) LPELR-57273(CA)

JUDGMENT DATE: 6TH APRIL, 2022

PRACTICE AREA: CIVIL LAW.

LEAD JUDGMENT: MUHAMMAD IBRAHIM SIRAJO, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This is a ruling on an application to set aside the judgment of the Court.

FACTS:

By an application filed pursuant to Order 6 Rule I of the Court of Appeal Rules, 2016 and under the inherent jurisdiction of this Court, the Appellant/Applicant sought the following reliefs:

1. AN ORDER declaring the Judgment of this Honourable Court delivered On the 24th day of November 2017 a nullity for being a judgment delivered after the demise of Kehinde Abimbola (“late Respondent”).

2. AN ORDER setting aside the judgment of this Honourable Court delivered on the 24th day of November 2017 for being a nullity as Kehinde Abimbola (“late Respondent”) had lost legal personality before the judgment was delivered.

3. AND for such further or Other Orders as this Honourable Court may deem fit to make in the circumstances.

The grounds of the application were that Kehinde Abimbola (late Respondent) died on the 25th day of October 2017 wherein she ceased to have any legal personality entitling her as a party to the judgment of the Court delivered on the 24th day of November 2017. That the judgment of the Court of 24th November 2017 is a nullity for being a judgment delivered in favour of a dead person after her death.

ISSUES FOR DETERMINATION:

The application was determined upon consideration of the following issues:

1. Whether this application is competent

2. Whether the judgment delivered on the 24th day of November 2017 in this matter is a nullity.

3. Whether a Court of competent jurisdiction has the power to set aside its judgment which is a nullity?

DECISION/HELD:

The application was granted and the judgment of the Court was set aside for being a nullity.

RATIOS:

• APPEAL – PARTIES TO APPEAL: On whom lies the duty of giving notice of the death of a party to an appeal
• APPEAL – PARTIES TO APPEAL: Position of the law on the death of a party to an appeal
• JUDGMENT AND ORDER – JUDGMENT OF COURT: Effect of judgment of Court entered in favor/against a dead person
• JUDGMENT AND ORDER – SETTING ASIDE JUDGMENT/ORDER: Circumstances when a Court can set aside its judgment/decision/order
• LEGAL PRACTITIONER – STAMP/SEAL: Whether a legal practitioner must affix his stamp/seal on an affidavit deposed to by him