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On Whether An Action In Trespass Abates On The Death Of Either Party

By tiitucker on 2020-01-07 (edited)

414


By Odirachukwuma Stanley Emejulu.

An action for trespass to land is not such a strictly personal cause of action as to abate on the death of the deceased plaintiff, since a trespass to land committed during the deceased's lifetime is an injury to the estate of the deceased, the cause of action therefore survives his death.

See:
MBADINUJU V. EZUKA (1994) 8 NWLR (PT. 364) 535 SC
IFEJIKA V. OPUTA (2001) 11 NWLR (PT. 725) 583

See also: ADAMU v. LEEDO PRESIDENTIAL MOTEL LTD& ANOR(2015) LPELR-25918(CA) where the Court held:
"It is settled law that an action in trespass is not a personal action because it attaches to or enures to the estate of a deceased claimant or defendant asthe case may be. The cause of action therefore survives the death of eitherparty.
See:
Eyesan v. Sanusi (1984) NSCC 271,
Mbadinuju v. Ezuka (1994) 8NWLR (Pt 364) 535,
Erinfolabi Vs Oke (1995) 5 NWLR (Pt 395) 296,
Adebisi v. Saka (1995) 8NWLR (Pt 414) 475,
Ifejika v. Oputa (2001) 11 NWLR (Pt 725) 583,
Atuegbuv. Awka South Local Government (2002) 15 NWLR (Pt.791) 635.

The distinction that the Counsel to the Appellant sought to draw between this case and the decisions of the Supreme Court in EYESAN V. SANUSI supra,MBADINUJU V. EZUKA supra was mere hair-splitting without any substance. It must be conceded that in DOSUNMU VS DADA (2002) 13 NWLR (Pt 783) 1, the Court of Appeal was of the view that where the dead party is the defendant,the cause of action against him in trespass to land dies with him and abates.

The Court stated that a claim for trespass was a claim in personam and that it died with the defendants based on the maxim actio personalis moritur cumpersona; that is, a personal right of action dies with the person. It is,however, a principle in our jurisprudence that a decision of Court which goes against prior decisions on the same point, without reference to them or making any distinction there from, does not constitute a just decision.

This point was made by Oputa, JSC in Onuoha v. State (1989) 1 NSCC 411, at 421thus:
".... 'a just decision of the case' will be a decision in accord with the many, many authorities and previous decisions of our Courts as well as English decisions which our Courts have followed and adopted.

A decision that throws all our existing authorities to the wind, will no doubt be an alarming decision, but hardly a just decision."

The decision in DADA VS DOSUNMU supra on this point could thus hardly be a just decision and cannot supersede the earlier decisions, more particularly as the decisions in EYESAN VS SANUSI supra, MBADINUJU VS EZUKA supra are Supreme Court decisions."Per ABIRU, J.C.A. (Pp. 55-57, Paras. E-C)




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