CORAM

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DANLAMI ZAMA SENCHA – JUSTICE OF THE COURT OF APPEAL

ABDULAZEEZ MUHAMMED ANKA – JUSTICE OF THE COURT OF APPEAL

UWABUNKEONYE ONWOSI – JUSTICE OF THE COURT OF APPEAL

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PARTIES

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1. ALHAJI ABDULHAFIZ ONIGEMO

2. MRS. SULAIMAN ONIGEMO (Beneficiaries of the Estate of Mr. Rauf Owolabi O. Onigemo)

APPELLANTS 

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1. MRS. FELICIA ADENIKE OSOKOYA APPELLANT/RESPONDENT

2. MR. RAUF OWOLABI O. ONIGEMO RESPONDENT RESPONDENT(S)

RESPONDENTS 

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AREA(S) OF LAW

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CIVIL PROCEDURE, PRACTICE AND PROCEDURE, DEATH OF PARTY, SUBSTITUTION OF PARTIES, JURISDICTION, FUNCTUS OFFICIO, SETTING ASIDE JUDGMENTS, EXTENSION OF TIME, LEGAL REPRESENTATION, PROFESSIONAL NEGLIGENCE, APPEAL

 

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SUMMARY OF FACTS

The Applicants (Alhaji Abdulhafiz Onigemo and Mrs. Sulaiman Onigemo) brought an application seeking to substitute themselves for the deceased Respondent (Mr. Rauf Owolabi O. Onigemo) and to set aside the judgment delivered in Appeal No. CA/L/40/2005 on 12th May, 2017. The Applicants claimed to be beneficiaries of the estate of the deceased Respondent.

The crucial facts established that Mr. Rauf Owolabi O. Onigemo (the original Respondent) died on 2nd July, 2016, almost a year before the appeal was heard and judgment delivered on 12th May, 2017. Despite this death, both parties were represented by counsel throughout the appellate proceedings, and neither counsel informed the Court of the Respondent’s death. The appeal proceeded to judgment without the Court’s knowledge of the death.

The Applicants claimed they only became aware of the appeal and judgment on 25th March, 2019 when court officials came to levy execution on property that was the subject matter of the appeal. They subsequently wrote a letter dated 8th April, 2019 to conduct a search on the case file. The current application was filed on 23rd May, 2025, approximately eight years after the judgment delivery.

The Applicants sought various reliefs including substitution, setting aside the judgment, stopping execution proceedings, and fresh hearing of the appeal. The application was supported by a death certificate from LASUTH showing the date of death and various correspondence relating to their discovery of the proceedings.

 

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HELD

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1. The application was dismissed.

2. The Court held that it lacked jurisdiction to set aside its own judgment except in certain limited circumstances such as correcting clerical mistakes, accidental slips, and omissions.

3. The Court found that the Applicants failed to provide satisfactory explanation for the eight-year delay in bringing the application.

4. The Court ruled that counsel had a duty under Order 15 Rule 1 of the Court of Appeal Rules to inform the Court immediately of a party’s death, and the failure to do so constituted negligence.

5. The Court applied the doctrine of functus officio, finding that having delivered judgment and with execution having taken place, the Court ceased to have power to reopen the matter.

6. No order as to costs was made.

 

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ISSUES

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1. Whether the Court ought to grant the application for substitution of parties and setting aside of judgment?

2. Whether the Applicants can substitute the deceased Respondent for purposes of the appeal?

3. Whether the Court can grant extension of time for the Applicants to set aside the judgment delivered in Appeal No. CA/L/40/2005?

4. Whether the Court has jurisdiction to set aside its own judgment in the circumstances?

5. Whether the conduct of counsel in failing to inform the Court of the Respondent’s death affects the validity of the proceedings?

 

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RATIONES DECIDENDI

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DEATH OF PARTY – EFFECT ON COURT’S JURISDICTION

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“A death of party in the course of proceedings is a great injury on the jurisdiction of the Court. Therefore, at that point, the Court lacks the jurisdiction over the dead party.” – Per UWABUNKEONYE ONWOSI, JCA

 

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SUBSTITUTION OF PARTIES – REQUIREMENTS FOR DECEASED PARTY

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“It is the position of the law that if the cause of action is one that survives the death of either party, appointment of a person or persons to carry on the proceedings in place of the deceased party is a necessary function of the Court either of first instance or of appeal on application by the personal representative of the deceased or the beneficiaries of the estate or on application by represented parties or an application by the other party so that the proceedings can be brought to a close.” – Per UWABUNKEONYE ONWOSI, JCA

 

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SUBSTITUTION REQUIREMENTS – TRANSMISSION OF INTEREST

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“A person to whom a deceased party’s interest in the subject matter of proceedings has not been transmitted on the death of the party will not, on his own, be substituted as a party to the proceedings in the place and stead of the deceased. In this case, it was demonstrated that the judgment on appeal affected the rights of the appellant’s family and therefore the interest of justice demanded that a member of his family be put forward in the place of the late appellant.” – Per UWABUNKEONYE ONWOSI, JCA

 

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EXTENSION OF TIME – REQUIREMENTS FOR APPLICATION

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“An application to set aside any judgment or ruling shall not be brought unless it is filed within fourteen days from the date of delivery of such judgment or ruling or such longer period as the Court may allow for good cause.” – Per UWABUNKEONYE ONWOSI, JCA

 

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EXTENSION OF TIME – SATISFACTORY EXPLANATION REQUIRED

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“When a Court is dealing with an application for extension of time within which to apply for an order setting aside a default judgment and when it is dealing with an application for an order setting aside the judgment. In the first case, the Court is not concerned with whether or not the Applicant has a good defence to the suit. The Court only concerns itself with whether or not the applicant has satisfactorily explained his reason for not bringing his application within time.” – Per UWABUNKEONYE ONWOSI, JCA

 

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BENEFIT FROM WRONG – PROHIBITION AGAINST

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“The law is that a party should not be allowed to benefit from his own wrong, expressed in the Latin maxim ‘nullus commodium potest de injuria sua propria’ – ‘no one can gain advantage by his wrong’.” – Per UWABUNKEONYE ONWOSI, JCA

 

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SETTING ASIDE JUDGMENT – DUAL REQUIREMENTS

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“Once the time fixed by the rules of Court for making an application to set aside a default judgment has expired, an application to set aside the judgment must show both good reasons why the application was not brought within the time, and that the application has merit.” – Per UWABUNKEONYE ONWOSI, JCA

 

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COURT’S JURISDICTION – SETTING ASIDE OWN JUDGMENT

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“It is trite law that this Honourable Court lacks jurisdiction to set aside its own judgment except in certain circumstances like correcting clerical mistakes, accidental slips and omissions.” – Per UWABUNKEONYE ONWOSI, JCA

 

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FUNDAMENTAL VICE – EXCEPTION TO FUNCTUS OFFICIO

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“Generally, a Court has no authority or legal competence to reverse itself or correct itself or set aside its previous judgment or order. Where, however, the judgment or order is affected and inflicted with a fundamental vice the party affected is entitled ex debito justiciae to have it set aside. The Court has an inherent jurisdiction to do so.” – Per UWABUNKEONYE ONWOSI, JCA

 

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COUNSEL’S DUTY – NOTIFICATION OF PARTY’S DEATH

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“By virtue of ORDER 15 Rule 1 of the Court of Appeal Rules, 2021, the rule provides thus: ‘It shall be the duty of counsel representing a party to an appeal to give immediate notice of the death of that party, to the registrar of the Court below or to the Registrar of the Court (as the case may require) and to all other parties affected by the appeal as soon as he becomes aware of the fact.'” – Per UWABUNKEONYE ONWOSI, JCA

 

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COURT’S DEPENDENCY ON COUNSEL – FACTUAL AWARENESS

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“None of the parties informed the Court about the demise of the Respondent. Our Courts are neither spirits, magicians nor soothsayers. They can only act on facts and evidence presented before them. Counsel are enjoined to be diligent and meticulous in prosecution of their cases in Court.” – Per UWABUNKEONYE ONWOSI, JCA

 

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APPELLATE REVIEW – LIMITATION ON SELF-REVIEW

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“Finally, a Court cannot sit on appeal over its own judgment or review the judgment of a Court of co-ordinate jurisdiction.” – Per UWABUNKEONYE ONWOSI, JCA

 

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FUNCTUS OFFICIO – EFFECT OF EXECUTION

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“In the instant case, this Court having delivered its judgment on 12th May, 2017 and the Applicants admitted execution of same judgment on 25th March, 2019, this Court becomes functus officio. The latin phrase or expression meaning that ‘the task performed’ applies in the instant case. Furthermore, the effect of Court said to be ‘functus officio’ is that the Court ceased to have power to re-open or impeach the matter.” – Per DANLAMI ZAMA SENCHI, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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– Court of Appeal Rules 2021

– Order 15 Rule 1 of the Court of Appeal Rules 2021

– Order 6 Rule 6 of the Court of Appeal Rules 2021

 

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OTHER CITATIONS

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CLICK HERE TO READ FULL JUDGMENT

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COUNSEL

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1. Babs Animashaun, Esq. with him, S. Kuti