➥ CASE SUMMARY OF:
Brigadier General James Omebije Abdullahi v. Nigerian Army & Ors. (SC.433/2010(R), 25 MAY 2018)
by Branham Chima.
➥ ISSUES RAISED
Substitution of accused/convicted;
➥ CASE FACT/HISTORY
This Application for substitution raises a novel issue of whether Applicants can be substituted for the deceased Appellant, who had a pending criminal appeal, before his death on 22/10/2014.
It is this premise that Applicants, who are Administrators of the deceased Appellant’s Estate, filed this praying tor the following, inter alia ‘AN ORDER of this Honourable Court substituting the name of Brigadier General James Omebije Abdullahi [deceased Appellant), with that of Mrs. Elizabeth Abdullahi and Abdullahi Akoji Leroy (Administrators of the Estate of Late Brigadier General James Omebije Abdullahi), for the purpose of continuing with the prosecution of Ground No. 9 only in the Original Notice of Appeal which relates to the Order Made by the lower Court affecting/touching on the deceased Appellant property covered by Certificate of Occupancy No. FCT/ABU/BN.897 in the name of Lt. Col. James Omebije Abdullahi, and situate at Plot 741 cadastral, Zone B2, Durumi, District, Abuja’, ‘That in addition to the challenge to the judgment of the lower Court affirming the deceased Appellants conviction, this Appeal challenged the propriety of the order made by the lower Court touching on the property of the Deceased covered by Certificate of Occupancy No. FCT/ABU/BN.897, as contained in Ground 9 of the Original Notice of Appeal filed on 22/5/2009’, ‘That even though the Judgment of the General Court Martial ordered that the Appellant’s Property be forfeited by way of restitution to the Respondents particularly the 1st Respondent, the decision of the Confirming Authority is that the personal Property of the Appellant was to be confiscated to recover the sum of ₦33,500,000.00 (thirty-three million five hundred thousand naira) only’, ‘That the Applicants and the other children of the deceased Appellant have a legal interest in the difference between the actual value of the Property taken over by the Respondents and the sum of ₦33,500,000.00 (thirty-three million five hundred thousand naira) only due on the Appellant’s conviction’.
➥ ISSUE(S) & RESOLUTION(S)
[APPLICATION: GRANTED]
↪️ I. Whether Applicants can be substituted for the deceased Appellant in the peculiar circumstances of this case, therefore, any arguments touching on the merit or otherwise of the case, will be ignored?
RESOLUTION:
[APPLICANTS ONLY WISH TO CONTINUE THE CIVIL ASPECT THAT TOUCHES ON DECEASED ESTATES PROPERTY
‘ As far as this Application is concerned, my own take is – the less said the better, and to set the ground rules for proceeding, I must restate that the Applicants have made it very clear that they do not wish to continue the Appeal as regards “the personal punishment of the deceased Appellant”. They wish to continue the Appeal that has to do with his estate, to protect their rights as successors and Administrators of the estate of the deceased Appellant; and nothing more.’
‘I have weighed every angle of the arguments for and against this Application, and I find myself leaning towards the position advanced by the Applicants. Yes, with regard to criminal cases, prosecution ceases with the death of an accused, which goes without saying, since no sentence can be passed on the accused, who is already dead. To put it in clear perspective, in a civil trial, if the Plaintiff or Defendant dies, their estate would usually continue. So, if the Plaintiff dies, the beneficiaries and heirs to the Plaintiff’s estate inherit the lawsuit, and they may choose to continue to press for damages, which becomes their property. Similarly, when a Defendant dies during a civil lawsuit, his estate may be forced to defend the Suit in order to prevent a Judgment that is detrimental to the case, and the estate is, therefore, substituted for the deceased Defendant.’
THE SUPREME COURT IS THE ONLY COURT THE APPLICANT CAN APPROACH
‘The reason is simple: there is nowhere else for the Applicants to go since the Court of Appeal already made a pronouncement on the merits of the Appeal filed by the deceased Appellant in that Court. The deceased Appellant died after filing the Appeal against the decision of the Court of Appeal in this Court. Yes, the Appeal died with the deceased Appellant, but his estate survived him, and being Administrators of the deceased Appellant’s estate, the Applicants have an interest in his estate that lives on, and which cannot be left hanging. Hanging, in the sense that the Court of Appeal is functus officio, and they cannot go to any lower Court to complain about the wrong done to the estate. The Applicants are, therefore, between a rock and a hard place. It is the duty of this Court, which is placed above the Court of Appeal, to provide a remedy, and that it is to allow them air their grievance, and let this Court decide its merit. Obviously, with the arguments raised by the Parties, this is the only way to go.’]
.
.
.
✓ DECISION:
‘It is in this regard that I grant this Application as prayed. The name of the deceased Appellant shall be substituted with that of the Applicants for the purpose of continuing with the prosecution of Ground No. 9 of the Grounds of Appeal in the Original Notice of Appeal filed on 22/5/2009. The Applicants are also granted leave to amend the said Notice of Appeal filed on 22/5/2009 and the Appellant’s Brief of Argument filed on 15/3/2012. The Amended Notice of Appeal and the Amended Appellant’s Brief of Arguments already filed are, hereby, deemed as having been duly filed and served on Respondents today- 25/5/2018. Thus, this Application filed on 11/1/2018 is granted as prayed.’
➥ FURTHER DICTA:
⦿ INTEREST TO BE SHOWN BY AN INTERESTED PERSON TO APPEAL
The interest which will support an application for leave to appeal as interested party must be genuine and legally recognisable interest in respect of a decision which prejudicially affects such a person. And for a person to qualify as a person interested, the applicant must show not only that he is a person having interest in the matter but also that the order or judgement of the Court below which he is seeking leave to appeal against prejudicially affects his interest. In other words, to succeed in the application, the applicants must show that they are persons who are aggrieved or persons against whom decisions have been produced which have wrongfully refused them something or wrongly affected their title to something. See: Nwaogu v. Atuma (2013) All FWLR (Pt. 669) 1022, In re: Ugadu (1988) 5 NWLR (Pt. 93) 189 at 202 per Karibi Whyte JSC; Usanga and Ors v. Okada and Ors (1964) 1 All NLR 36; Ikonne v. Commissioner of Police (1986) 4 NWLR (Pt. 36) 473; Dairo v. Gbadamosi In re: Afolabi (1987) 4 NWLR (Pt. 63) 18 and Ademola v. Sodipo (1992) 7 NWLR (Pt. 253) 260 261. — K.B. Aka’ahs JSC.
⦿ COURT MAY EXAMINE DECISIONS OF SIMILAR JURISDICTION
Where there is no established precedent in this jurisdiction, the Court may examine the decisions of Courts in other similar jurisdictions for guidance. It is conceded that they are of persuasive authority only. In the Indian and English authorities cited by learned counsel for the applicants, I am persuaded that having regard to the fact that the decision of the lower Court affects the pecuniary interest of the applicants in the estate of the deceased and they are not seeking to pursue the appeal against the conviction and sentence of the deceased, the justice of the case requires that they be permitted to challenge the decision on Ground 9 only. — K.M.O. Kekere-Ekun JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Amina Adamu Augie JSC
➥ APPEARANCES
⦿ FOR THE APPLICANT(S)
Y.C. Maikyau SAN.
⦿ FOR THE RESPONDENT(S)
Kalu Onuoha, Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
