Ale Ojo Chambers

Case Review

*APC v. FBN PLC**

HIGH COURT OF THE F.C.T. (ABUJA DIVISION)
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(AFFEN, J.)

The Congress for Progressive Change (“CPC”) filed a suit against the Defendant seeking declaratory and injunctive reliefs as well as monetary damages for alleged breach of contract and libel flowing from the Defendant’s dishonouring cheques issued to third parties.

As a result of the merger of several political parties including the CPC to form the All Progressives Congress (“APC”), the CPC obtained orders substituting the CPC with the APC as the Plaintiff and amending the processes accordingly.

After the substitution was ordered, the Defendant’s counsel filed a notice of preliminary objection challenging the jurisdiction of the court on the following grounds:

"i. That there is no cause and/or reasonable cause of action disclosed by the plaintiff against the defendant.

ii. There is no contractual relationship between the plaintiff and the defendant.

iii. That the plaintiff’s reliefs against the defendant are legal impossibilities as the plaintiff only came into existence on 31/07/2013 about 2 years after the alleged wrong doing of the defendant took place.

iv. That the plaintiff does not have the locus standi to institute this suit against the defendant.

v. That the plaintiff’s suit is spent, otiose and an academic exercise.

vi. That the suit of the plaintiff is grossly incompetent.”

With reference to the grounds that raise the questions of whether the suit is spent and incompetent, learned counsel to the Defendant argued that the suit is predicated on events that relate to the CPC which is now defunct and has ceased to exist. The wrong allegedly done by the Defendant is stated in the pleadings to be largely libelous in nature, and it is settled law that a political party that is defunct or dead cannot maintain an action in libel.

Learned counsel for the Plaintiff argued on the other hand that although the suit was instituted by the defunct CPC, the cause of action survives the death or extinction of CPC. The APC has sufficiently demonstrated that it has accepted the transferred interests, assets and liabilities of the former CPC and it can legitimately continue/maintain the action.

Considering both sides of the argument, the court noted that it is common ground between the parties that the original Plaintiff (CPC) has since become defunct and is substituted by the current Plaintiff (APC).

Striking out the suit for want of jurisdiction, the court held inter alia that:
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“The general rule is that a personal action does not survive death, which is encapsu -lated in the Latinism, actiopersonalismoritur cm persona.

This common law principle presupposes that a cause of action can only arise or subsist when both the plaintiff and the defendant are alive and will regard the cause of action as having ceased upon the death of either the plaintiff or the defendant since a dead person ceases to have any legal personality from the date of his demise and can neither sue nor be sued whether personally or in a representative capacity. See Kareem v. Wema Bank Ltd (1991) 2 NWLR (Pt. 174) 485 CA; Akumoju v. Mosadolorun (1991) 9 NWLR (Pt. 214) 236 (CA); Omokhafe v. Esekhomo (1993) NWLR (Pt. 309) 58; Hodge v. Marsh (1936) All E.R. 484.

It has however been held that the maxim does not apply to personal actions founded on contract nor to cases where the deceased is alleged to have wrongfully appropriated property. See Philips v. Homfray (1883) 24 Ch.D 439; Eyesan v. Sanusi (1984) LPELR-1185 (SC (per Obaseki, JSC). Indeed, even in respect of torts, the current attitude of the law is to restrict the application of the maxim only to causes of action founded on defamation. See Winfield & Jolowicz on Torts (17th Edition); National Electric Power Authority v. Malam Muhammad Auwa (2010) LPELR-4577(CA). As the present action is partly founded on the tort of defamation and partly on breach of contractual/fiduciary relationship, I take the considered view that the claims founded on defamation (notably reliefs 3 and 5) which are personal to the defunct CPC are caught by the maxim actiopersonalismoritur cm persona/. With great respect to learned counsel for the plaintiff, the aspect of the case which alleges that injury was done to the reputation of the defunct CPC does not survive the extinction of CPC and the current plaintiff (APC) cannot validly continue with that aspect of the claim. Quite contrary to the arguments pressed by Mrs. Obono-Obla of counsel, it is not the plaintiff's prerogative to decide what to prove and what not to prove in the case at hand. No. The plaintiff can only arrive at the juncture where proof is required if, and only if, there is a cause of action that survives the extinction of CPC. Since the cause of action (and claims) founded on defamation (libel) does not survive the extinction of CPC as I have held, there is nothing for the plaintiff to elect to prove in that regard. However, the claims founded on breach of contract survive and can ordinarily be continued with or maintained subject, of course, to a reasonable cause of action being disclosed and the current plaintiff (APC) being vested with the requisite locus standi.”

*Counsel:*

Mrs. J. O. Obono-Obla for the Plaintiff.

Dr. U. S. Ajala with Ikechukwu Ekene and Miss Ifekhai for the Defendant.

This summary is fully reported at (2014) 12 CLRN