Barrister & Solicitor

03/02/2026

✅✅ *WHETHER CLAIM FOR SOLICITOR'S FEE MUST BE SPECIFICALLY PLEADED AND PROVED BY CREDIBLE EVIDENCE*

*OMONIGHO v. IJOMONE & ANOR(2025) LPELR-81997(SC)*

LEGAL PRACTITIONER - PAYMENT OF LEGAL FEES -

"Now, the law on the grant of solicitor's fees is no longer in a state of fluidity. In UBN Plc v. Chimaeze (2014) 9 NWLR (Pt. 1411) 166, one of the issues that greeted this Court was the legality of an award of solicitor's fee.

His Lordship, M.D. Muhammad, JSC, at page 184 and 188 thereof, after outlining the illuminating finding of the Court of Appeal, insightfully, declared: The foregoing finding of the lower Court given the pleadings and the testimony of PW1, the respondent/cross appellant, as well as exhibit MOC.7 is unassailable.

The N250,000.00k Naira claimed was not only specifically pleaded but, from the available evidence, clearly proved.... In the case at hand, appellant's contention that the lower Court's affirmation of the trial Court's award of special damage is wrong is manifestly incorrect.

The trial Court's award that proceeded on the basis of respondent's specific pleadings and evidence in strict proof of the pleaded facts, on the authorities, cannot be faulted. See Messrs Dumez (Nig.) Ltd. v. Ogboli (1972) 196 and Marine Management Associates Inc. & Anor. v. N.M.A. (2012) 12 SC (Pt. 11) 141; (2013) 3 NWLR (Pt. 1333) 506.

Thus, this Court, in Chimaeze case supra, awarded lawyer's fee because it was specifically pleaded and proved by available evidence."

31/01/2026

*SDP v. INEC & ORS (2026) LPELR-82819(CA)*

*- Whether an order of retrial can be ordered in election matters...*

_"In the present case, the Appellant's petition was not struck out because of any procedural irregularity attributable to the Tribunal, nor because the Tribunal shut the Appellant out. Rather, the petition was struck out because the Appellant, despite being afforded two clear and agreed hearing dates under a binding Pre-Hearing Report, failed to present its sole witness and failed to place any credible material before the Tribunal to justify further adjournment. Election petitions are sui generis and governed by strict constitutional and statutory timelines. The authorities relied upon by the Appellant, including OKINO V. OBANEBIRA (SUPRA) and DURU V. ONWUMELU (SUPRA), arose from ordinary civil proceedings and are wholly inapplicable to election petition jurisprudence. The rigid framework of election petitions does not permit the luxury of retrials occasioned by a party's indolence or lack of preparedness. Ordering a retrial in this case would amount to rewarding the Appellant's failure to diligently prosecute its petition and would undermine the constitutional imperative of finality and expedition in election matters. The law does not support such an indulgence. Furthermore, a retrial cannot be ordered where the failure of the case is self-induced. The Appellant did not merely fail to prove its case; it failed to present it at all. The Courts have consistently held that a retrial will not be ordered to compensate for abandonment, negligence, or tactical default. I must stress that the Appellant has failed to show any legal or factual basis for the grant of a retrial. The Tribunal acted within the law, and there is no miscarriage of justice warranting a rehearing. I must state, with due respect, that the Appellant's prayer that this Court exercise its discretion to order a retrial on the ground that the Tribunal did not do justice and that a rehearing was necessary in the interest of justice is fundamentally misconceived and cannot be resolved in favour of the Appellant."_ Per FADAWU UMARU, JCA (Pp 72 - 73 Paras B - F)

31/01/2026

*JAJA vs. CALABAR URBAN DEVELOPMENT AUTHORITY & ORS.(2020)LCN/14839(CA)*

*ISSUE:* AFFIDAVIT OF SERVICE-
Whether an affidavit of service is a conclusive proof of service

*PRINCIPLE:*
"It is elementary the fact that service is a precondition for the exercise of jurisdiction, and where there is no service, or a procedural fault in service, the subsequent proceedings no matter how elegantly conducted becomes a nullity as the same goes to the competence of the action. See ACB Plc vs. Losada (Nig) Ltd. (1995) 7 NWLR (Pt. 405) 26; Scott-Emuakpor vs. Ukavbe & Ors. (1975) 12 SC (reprint) 32 per Bello, CJN.
What is being disputed herein is the service of the Court order of the 30th January, 2007 on the respondents as contended by the appellant. Whereas appellants insist that the 1st respondents were served the motion and the Court order as deposed to by the bailiff of Court and attested by the bailiff’s affidavit of service, respondents strongly contend that they were only served the Court’s order a day after the ex*****on of the act being complained of. It is the holding by the Supreme Court in Ahmed vs. Ahmed (2013) LPELR-21143, that an affidavit of service is meant to enable defendant to be aware of the case against him and also prepare for his defence; and in the nature of the case before the Court, the service of the order on the respondents as alleged was to inform the defendant of the order of Court on the matter and the need for compliance. The erudite jurist however stated in the case cited, that: “An affidavit of service is not conclusive proof of service of process. The burden of proving service rests on the person asserting that there was service. An affidavit of service must contain details on the following, when, who, what and where.”
Let us now examine the issue at hand, taking the direction of the Supreme Court case as a template. The affidavit of service in issue can be found at page 27 of the record, wherefore one Archibong Okon Effiom of the High Court Registry Calabar swore to have served the defendant on the 5th of February 2007 through the secretary of the defendant’s office Calabar with a Court order. The affidavit of service is dated the 8th of February, 2007. Of note is the fact that the affidavit while stating that the order of Court was served on the 5th of February, 2007 on the secretary of the respondents, the respondents on the other hand dispute the service of the two documents, and filed a counter-affidavit to that effect on the 12/8/08. I will reproduce paragraphs 3, 4 and 5 thereof for ease of reference.
3. The respondents have seen the affidavit of service of the Court order and the motion on notice deposed to by one Archibong Okon Effiom and Ayimo E. Ayimo purporting to have served the court order and the motion on notice on the respondent on the respondent through the secretary, and one Archibong Inyang on the 5th February, 2007 and 7th February, 2007 respectively.
4. The averments contained in the affidavits of service deposed to by Archibong Okon Effiom and Ayimo E. Ayimo are false. There is nobody by name Archibong Inyang in the employ of the respondent.
5. The Court order was served on one of the respondents casual labourers, Mr. Odoudo Ekpo residing at Edik Idim in Akpabuyo Local Government Area on the 27th February, 2007 and he brought same to the attention of the respondents through the deponent herein.
In other words, the contention of the respondents herein is that the order of the Court under reference was served on them a day after the plant of the plaintiff had been pulled down, and it is untenable and illogically unsustainable to argue that the respondents were in contempt of an order of Court which was not served as at the demolition of the plaintiff’s plant.
Clearly the counter-affidavit introduced material depositions, to which the plaintiff failed to controvert either by way of a further and better affidavit, or by the production of the dispatch book, which plaintiff witnesses stated bore the names of the persons served as well as the date of service. In the spirit of the decision of Ahmed vs. Ahmed (supra), the affidavit of service which initially is the prima facie evidence of service having been rebutted fails in establishing that respondents were duly served as claimed. Contrariwise it is safe to hold that indeed the person allegedly served the motion papers is not a staff of the respondents, and further that the respondents became aware of the service of the Court order only through one of their named casual workers, who was served on the 27th of February, 2007, a day after the demolition of the appellant’s plant. I agree that in such instance, the respondents cannot validly be held in contempt of an act done without the knowledge of the order of Court. The trial Court was accordingly right in holding that appellants failed to prove before it that respondents actually accepted service of the Court order dated the 30th of January, 2007, later than the 27th of February, 2007, and that being the case, respondents cannot also be liable for contempt of the order. This issue is also resolved against the appellant." Per BARKA JCA

23/01/2026

⚖️⚖️ *THE LEGAL STATUS OF UNSIGNED AND UNDATED DOCUMENTS IN NIGERIA*

By: C.K. Anyanwu (LLM)
&
Gladys Aghogho Okpomor, Esq.

*Introduction*
In the hierarchy of the Nigeria Evidence law, documentary evidence is often regarded as the most reliable. Thus, the presence of a signature and a date on a document is often viewed as a basic administrative requirement that must be complied with to enable the court accord probative value to it. However, a recurring issue in Nigerian courts is the status of documents that lack basic authentication marks: a signature and a date. While the general rule suggests these documents are worthless, recent jurisprudence from the Supreme Court and Court of Appeal has introduced salient exceptions,
depending entirely on the character of the document in question.

*A) The Inchoate Nature of Undated Drafts*

In commercial transactions, certainty is paramount. The Court of Appeal in Mat *Holdings Ltd. v. UBA Plc. (2003) 2 NWLR (Pt. 803) 71 C.A.,* made it clear that an undated bank draft is "inchoate or invalid."

Because a draft is a negotiable instrument intended to represent value, the absence of a date (and in that specific case, the value in figures) means it cannot form the basis for credit or consideration. In the eyes of the law, such a document is effectively a nullity in a commercial sense.In the instant case, the value of the draft by the appellants for the benefit of the respondent was undated and the value of the draft in figure was not stated. The same was therefore inchoate and invalid and could not form the basis for giving any credit or consideration to the appellants. (P. 89, paras. C-D)

*B) The Sanctity of the Signature*

The starting point in Nigerian law is that a document must be signed and dated to have any legal "origin." Without a signature, a document cannot be pinned to a specific author. In *Ujah & Anor v. Unijos & Anor (2020) LPELR-51835(CA),* the court was blunt, stating that an unsigned and undated reply on points of law is a worthless document.

Similarly, in *IGP & Ors v. Bello (2021) LPELR-56343(CA),* the Court of Appeal held that an entry in a police diary that is unsigned and undated cannot be presumed true. The court emphasized that while such a document might be "admissible," it attracts no probative value.

Interestingly, the courts hold their own processes to the highest standards of formal validity. When it comes to judgments, there is no room for error. In *Awoniyi v. Aleshinloye (1998) 9 NWLR (Pt. 564) 71 C.A:* the Court of Appeal held that an unsigned and undated judgment is null and void. Thus, a judgment is the final expression of the court's authority; without the signatures of the presiding members (especially in a Tribunal), the document lacks the breath of life required to be legally binding.

Regarding public notices and gazette; herein, documents intended to notify the public of government action must carry the weight of authority. In *Umeji v. A.-G., Imo State (1994) 4 NWLR (Pt. 391) 552 C.A.,* the court dismissed an undated and unsigned public notice published in a State Gazette, noting that it 'serves no useful purpose' and cannot be relied upon.

Equally also important, In the most recent case of *FALI v. EWEN(2025) LPELR-80892(CA),* it was held that:
"A document like those which does not contain the transaction date has been held to be legally weak. See Mr Moris Visinoni v. Mrs Tina Brahams (2015) LPELR-40405(CA)." Per NNAMDI OKWY DIMGBA, JCA (Pp 17 - 17 Paras D - D)

*C) The Admissibility and Probative Value*

Legal practitioners often confuse admissibility with weight. A document may be relevant and thus admissible, but if it is unsigned, the court may refuse to rely on it. This distinction was highlighted in *Aliyu v. Namadi & Ors (2023) LPELR-59742(SC),* where the Supreme Court noted:

*Admissibility* is based on relevance.

*Probative Value* depends on proof and authenticity.

Even if a document is a certified public document, if the underlying original was an unsigned, handwritten report not on an official letterhead, certification cannot cure its worthlessness. The court in _Aliyu v. Namadi (supra)_ held that a document cannot pass as the act of a particular person without a signature.In the instant case, the Courts were faced with Exhibit INEC 1 (Jigawa 9 and MDA 20A), Exhibit FAA 36- a hand written unsigned report not written on any official letter headed paper and Exhibit FAA 37B said to be a certified true copy of Exhibit FAA 36. Exhibit INEC 1 (Jigawa 9 and MDA 20A), emanated from the 3rd respondent who monitored the primary election. Despite the alleged mix-up by the Court below as to the existence of Exhibit FAA 38, the said exhibit does not constitute proof of payment for the certification of Exhibit FAA 36.

*D) The Modern Exceptions: When Unsigned Documents Count*

Despite the general rule, the law has evolved to prevent technicalities from defeating justice. In *Adamu v. Akogwu (2023) LPELR-59522(CA),* the court identified instances where unsigned documents are not worthless:

*i) Oral Clarification:* Where oral evidence is led to clarify the authorship and origin of the document.

*ii)Mutual Recognition:* Where parties to an agreement do not deny its existence or their intent to be bound by it, even if the document remains unsigned.

Comprehensively speaking, a fundamental question that begs for an answer is whether a dead undated document be revived? Under the Evidence Act, there is a narrow window for oral testimony. According to the case of *MS O. Ilemobola Co. Ltd. v. Gov., Kaduna State (2000) 7 NWLR (Pt. 666) 633 C.A*, oral evidence (parole evidence) is admissible under the proviso to Section 132(1) of the Evidence Act (now Section 128 of the 2011 Act) to explain why a document was undated and to establish the date it was intended to operate.

*Note:* While oral evidence can save the 'date' of a deed, it cannot be used to prove the existence of the underlying transaction (like a sublease) if the document itself fails to do so.

In furtherance to these exceptions, there are instances where court further relaxed the issue of signature and date. Thus, the courts adopt a more liberal substantial justice approach when dealing with court processes like notices of appeal and written addresses.

*i) Notice of Appeal:*

In *Adamu v. State (2023) 4 NWLR (Pt. 1873) 127 S.C,* the Supreme Court clarified that an undated notice of appeal is a mere irregularity. The court reasoned that the crucial date for compliance with the Supreme Court Act is the date of filing at the registry, not the date written on the document by the appellant.
In the instance case, although the appellant’s notice of appeal was undated, it was thumb-printed by the appellant and was duly filed in the Registry of the Court of Appeal on 14/7/2012 upon the payment of the appropriate filing fees. [Ayoola v. Yahaya (200 5 ) 7 NWLR (Pt. 923) 122 referred to.] (P. 151, paras. B-D)

*ii) Court Processes & Filing Fees:*
This was echoed in *Azuka v. State (2021) LPELR-56553(CA),* where the court held that as long as the filing fees were paid and the registry's date stamp is affixed, the document is competent. In the instant case, the court process was not dated by counsel, but the date from the filing was taken to have covered it.

*iii)Written Addresses:*

In *Haruna v. Uniagric, Makurdi (2005) 3 NWLR (Pt. 912) 233 C.A,* the court held that an unsigned and undated written address is not void, provided it is adopted in open court by counsel. Since the rules of court do not strictly mandate a signature for an address, the act of adoption cures the formal defect.

*Conclusion:*
The legal consequences of failing to date a document in Nigeria are context-specific. With regards to negotiable Instruments & Judgments, the consequences is said to be fatal and the document void. In terms of public notices, it is unreliable and unenforceable. While the courts are increasingly moving toward substantial justice, the safest course for any legal practitioner remains the strict adherence to formal regularities. A date may seem like a small detail, but in a courtroom, it can be the difference between a winning case and a struck-out process.

19/01/2026

Law is detached from razzmatazz✅

can VDM do?

Now that Blord has built an app using the name “Ratel,” VDM can't do much.

VDM did not trademark the name Ratel and has no patent rights over it.

Under the law, Popularity or public association does not equal ownership.

Legal rights come from registration, not recognition.

Without a registered trademark, stopping another person from using the name becomes legally difficult.

If a name, brand, or slogan matters to you, trademark it early.

Failing to do so may leave you with no enforceable claim when disputes arise.

Humphreylaw Attorneys

19/01/2026

*Adeosun (2001) 8 NWLR (Pt. 714) 200, SC.*

*ISSUES FOR DETERMINATION:*

Whether the cause of action in this suit survives the deceased appellant and, if so, whether the applicants can be substituted in place thereof.

*FACTS OF THE CASE:*

Following the death on October 21, 2001 of Joseph Adebayo Osagunna, the appellant, the applicants herein filed an application at the Supreme Court praying for an order that they be substituted for the dead appellant to present this appeal for themselves and on behalf of the other members of the Amilede descendants/branch of the Onidasa Ruling House of Ipoti Ekiti. The appellant had, in his personal capacity, sued the respondents herein claiming, amongst others, that the registered declaration by which the 4th respondent was selected as the Olupoti of Ipoti Ekiti is defective, faulty, objectionable and not a true reflection of the customary law and usages of Ipoti Ekiti; that all steps taken pursuant to the said registered declaration, particularly in the selection of the 4th respondent as the Olupoti-elect are unlawful, null and void and an order of in junction restraining the 1st, 2nd, and 3rd respondents from implementing or giving effect to the purported nomination and/or selection of the 4th respondent and restraining the 4th respondent from parading or holding himself out as the Olupoti of Ipoti Ekiti and from exercising any of the Olupoti Royal functions.

The case of the appellant was that he, as against the 4th respondent, was the rightful successor under Ipoti customary law and usages to the vacant Olupoti Chieftaincy and that the chieftaincy declaration under which the 4th respondent claimed to have been validly appointed was not in accord with Ipoti age-long customary law and usages. In this regard, it was the appellant's contention, amongst others, that the Onidasa Ruling House consisted of only the three families of Emila, Asao and Ejemu, otherwise collectively known as Amilede family. The 4th-8th respondents claimed that apart from the three families mentioned by the appellant, there were two other families, namely Ejisun (to which the 4th respondent belongs) and Olomo, that belonged to the Onidasa Ruling House.

In its judgment, the trial court held inter alia as follows:

"i.That the Olupoti of Ipoti Chieftaincy Declaration had not been approved by the State Executive Council in accordance with the provisions of the enabling Edict and was therefore null and void.;

ii.That there is only one Ruling House of the Olupoti chieftaincy - the Onida-dasa Ruling House-consisting of five families and that Chief Ejisun was the head of the Ruling House;

iiiThat Ipoti native law and custom as reflected in Exhibit 'D' requires that the name or names of-the candidates of the Olupoti Chieftaincy be sent to the Aworos for consultation with the 'Ifa' Oracle and that this custom was violated in the selection of the 4th defendant and that his said selection was therefore null and void.;

ivThat the Kingmakers are Odoftn Ipoti, Chief Inurin, Chief Eisinkin, Chief Eisaba and Chief Ej emu as contended by the defendants;

v.That the Olupoti Chieftaincy Declaration was defective, null and void because

(a)it violated the customary law of the Ipoti Community;

(b)it was not published as required by law; and

(c)it was not approved by the appropriate authority.

The 4th - 7th respondents were dissatisfied with the judgment of the trial court and the appealed to the Court of Appeal, the 8th respondent having died.

The appellant also appealed against another part of the judgment of the trial court. The Court of Appeal dismissed the appellant's cross-appeal and allowed the main appeal of the 4th - 7th respondents, upholding in the main that: (1) there are five families constituting the Onidasa Ruling House which is the only ruling house in respect of the Olupoti Chieftaincy and (2) the Chieftaincy Declaration accorded with the customary law and usages of Ipoti.

Being aggrieved with the judgment of the Court of Appeal, the appellant appealed against it to the Supreme Court on the finding that the Chieftaincy Declaration accorded with the customary law and usages of Ipoti. The 4th -7th respondents also cross-appealed on some aspects of the judgment. Whilst the appeal and cross appeal were pending for determination by the Supreme Court, the appellant died, whereupon the applicants filed an application to be substituted in his stead. The main issues considered by the Supreme Court was whether the cause of action survived the appellant and whether the applicants can be substituted for him.

In determining the application, the Supreme Court considered the following rules of court:

Order 8, rule 9(2) & (5) of the Supreme Court Rules which provides that:

"(2) If it is necessary to add or substitute a new party for the deceased an application shall, subject to the provisions of rule 11 of this Order, be made in that behalf to the court below or to the Court either by any existing party to the appeal or by any person who wishes to be added or substituted."

"(5) Where an appeal has been set down for hearing and the Court is or becomes aware that a necessary party to the appeal is dead the appeal shall be struck off the hearing list."

Order 11, rule 38 of the High Court of Ondo State (Civil Procedure) Rules, 1987 which states thus:

"38 In case of the death of a sole plaintiff, or sole surviving plaintiff, the Court may, on the application of the legal representative of such plaintiff, enter the name of such representative in the place of such plaintiff in the suit, and the suit shall thereupon proceed."

*Held (Unanimously dismissing the application):*

*1.On whether action on Chieftaincy declaration survives the parties thereto.*

A chieftaincy declaration regulating any chieftaincy is not limited to the occasion of the filling of the existing vacancy in the stool; it is for all time, and any cause of action based thereon will survive its parties. This is because the validity of any appointment into the chieftaincy depends on the declaration. In the instant case, all the claims of the deceased appellant relating to the validity of the chieftaincy declaration on Olupoti Chieftaincy (Exhibit D) do not die with the appellant, they survive him. (P. 215, paras. E -F)

*2.On connotation of representative action and effect where party named therein dies.*

Where an action is initiated in a representative capacity and/or against persons in a representative capacity, that action is not only by or against the named parties, it is also by or against those the named parties represent. Consequently, if all the named parties die, the action will naturally subsist on behalf of or against those represented by the deceased named parties but who have not been stated nomine. The position is the same whether it is an action on trial or on appeal. The case or appeal, as the case may be, subsists after the death of the named plaintiff or defendant but cannot be prosecuted until living persons from those represented have been substituted for the named dead party. In the instant case, no evidence of any representation of any group of persons or families by the deceased appellant was given by him or by any of his witnesses.

Okonji v. Njokanma (1989) 4 NWLR (Pt. 114) 161 referred to.] (P. 221, paras. B -D; F-G)

*3.On duty on court to amend suit to reflect representative capacity of parties.*

Where a plaintiff did not expressly sue in a representative capacity and there is evidence to show he was so suing, the law in such a case is that the court shall aim at doing substantial justice and save multiplicity of suits by amending the capacity in which the suit is instituted so as to bring it in line with the evidence. It would not matter whether or not an application for such an amendment had been applied for and obtained. Once the pleadings and evidence show conclusively a representative capacity and the case was fought through- out in that capacity, the trial court can justifiably properly enter judgment for or against the party in that capacity. Where, however, the plaintiff made out no case in a representative capacity, such a proceeding cannot be a proper one where an amendment of the writ of summons and/or the statement of claim can be made; for that, by itself, would not cure the lack of evidence on the issue of representation. In the instant case, no evidence of any representation of any group of persons or families by the deceased appellant was given by him or any of his witnesses. Thus, the capacity in which he sued was personal, and therefore, no application can be granted for any representative capacity.

Nta v. Anigbo (1972) 5 SC 158; Afolabi v. Adekunle (1983) 2 SCNLR 141; Onwunalu v. Osademe (1971) 1All NLR 14 at 16; Ayeni v. Sowemimo (1982) 5 SC 60 referred to and applied.] (Pp. 221, paras. D - F; 217 - 218, paras. H-D)

Per IGUH, J.S.C. at pages 221 - 222, paras. F - E:

"In the present case, no evidence of any representation of any group of persons or families by the deceased plaintiff was given by him or by any of his witnesses. I therefore find it difficult to accept the submission of learned Senior Advocate, Chief Ajayi, that an inference could be drawn from the records that the deceased plaintiff prosecuted his action in a representative capacity for himself and on behalf of members of the Amilede families. I cannot see my way clear in drawing such an inference. In my view, the applicants have not established that the deceased plaintiff prosecuted his action in a representative capacity for and on their behalf and the other members of the Amilede families. In the circumstance, I find my- self unable to accede to the application for the substitution of the applicants in place of the named deceased appellant. This is because the sole ground for the application, that is to say, that the said applicants are unnamed parties to the suit represented by the deceased plaintiff has not been established and is, with respect, misconceived.

Learned Senior Advocate relied heavily on the decision in Joseph Afolabi and Others v. John Adekunle and Another (1983) 2 SCNLR 141; (1983) 1 All NLR 470 at 478 and strenuously argued that this court can still grant this application in spite of the fact that the action was brought by the deceased plaintiff in his personal capacity.

It seems to me, with respect, that the decision of this court in Adekunle's case would appear to have been grossly misunderstood. In that case, there was abundant evidence before the court that the land in dispute belonged to the 1st plaintiff and other members of Adekunle family. Both in his pleadings and in his evidence, the Ist plaintiff admitted that the land in dispute belonged to him and the other children of J.F. Adekunle. He had not claimed ownership of the land personally or to the exclusion of the other children of the said J.F. Adekunle. The question that arose for consideration, was this. The court, having found as a fact that the land in dispute rightly belonged to the 1st plaintiff and the other children of the said J.F. Adekunle, would it be doing justice if it failed to grant a declaration of title to the 1st plaintiff and the rest of the children of the said J.F. Adekunle even though the 1st plaintiff had sued the defendants in the wrong capacity. It was held by this court that having come to the conclusion that the 1st plaintiff had sued in a wrong capacity but had made out a case in another capacity, it would be quite proper and in the interest of justice for the court to make the necessary amendment to the writ of summons to reflect the correct representative capacity under which the said 1st plaintiff should have sued.

The facts of the present case are distinguishable from those of the Adekunle case. In the present case, as I have already pointed out, there is no evidence that the deceased plaintiff prosecuted his action for and on behalf of any one else and I am unable to see the relevance of the Adekunle case in the present application."

*4.On determining effect of death of a party on cause of action.*

Where a sole or surviving plaintiff dies or a sole or surviving defendant also dies, provided the cause of action is such that survives, the facts of the death of both parties will not cause the abatement of the suit although the proceedings will be temporarily stayed until an order can be obtained substituting the names of such other persons for the deceased parties. An order could be made with the leave of court for the action to be continued in the names of the legal or personal representatives of the deceased party. If the cause of action is such that terminates on the death of either party, for example, a claim in defamation, then that would be the end of the action. But if the cause of action is such that survives, then the rules of court on the subject come into play. (P. 220, paras. F-H)

*5.On effect of death of party to an appeal in the Supreme Court.*

By virtue of Order 8, rule 9(5) of the Supreme Court Rules, where an appeal has been set down for hearing and the Supreme Court is or becomes aware that a necessary party to the appeal is dead the appeal shall be struck off the hearing list. In the instant case, having regard to the facts before the Supreme Court, the appeal shall be struck out and not dismissed. (Pp. 222 - 222, paras. H-B)

*6.On procedure for substituting a deceased appellant at the Supreme Court.*

Under and by virtue of Order 8, rule 9(2) of the Supreme Court Rules, if it is necessary to add or substitute a new party for a deceased appellant, an application shall be made in that behalf to the Court of Appeal or to the Supreme Court, either by an existing party to the appeal or by any person who wishes to be added or substituted. This rule is however silent on who is entitled to be added or substituted. (P 218, para. F)

*7.On who qualifies to be substituted for a deceased plaintif.*

By virtue of Order 11 rule 38 of the High Court of Ondo State (Civil Procedure) Rules, 1987, in case of the death of a sole plaintiff, or sole surviving plaintiff, the court may, on the application of the legal representative of such plaintiff, enter the name of such representative in the place of such plaintiff in the suit, and the suit shall thereupon proceed. In other words, on the death of a sole plaintiff after the action brought in a case where the cause of action survives, his executor or administrator may obtain an order to carry on the proceedings. (Pp. 218 -219, paras. G-A)

*8.On who qualifies to be substituted for a deceased party.*

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. In the instant case, the applicants have not shown that they are the legal or personal representatives of the deceased appellant or that the latter's interest in the subject-matter of the proceedings have been transmitted to them on his death.

Eyesan v. Sanusi (1984) 1SCNLR 353; Mbanu v. Mbanu (1961) 2 SCNLR 305 Opebiyi v. Oshoboja (1976) 10 SC 195 referred to and adopted.] (P. 219, paras. D-G).

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