Declaration-Title to land-Guardian ad litem not a party to action-Merely representing defendant for purposes of suit-Where the person represented dies then until his executor or administrator is substituted the action is in abeyance-Order 7, rule 13 of the High Court (Civil Procedure) Rules.

Appeal from the High Court (Mid-West).

HELD:

(1)     A guardian ad litem is not a party to the action. He is merely representing the defendant for the purposes of the suit and if the person represented dies then until his executor or administrator is substituted the action is in effect in abeyance. This is fundamental to the cause of action and it is not a mere irregularity.

(2)     Whilst as a matter of principle it would be perfectly proper to substitute the Administrator of the estate of the deceased Egharagbemi for him as defendant the Supreme Court could not see that it was in fact right here for the trial Judge to do so when he did as there was neither any sworn evidence that the guardian ad litem was the administrator of the estate of Egharagbemi nor were the letters of administration produced to him, but he appeared to have acted merely on a statement of Counsel in argument.

(3)     Order 7, rule 13 of the High Court (Civil Procedure) Rules put a guardian ad litem in a special category irrespective of the general definitions of "defendant" and "party" but where those definitions refer to a person being "entitled to attend" or "attending" this can only mean rightfully attending and if the basis by which they attend is taken from them then they are not rightfully attending even if, in fact as here, the guardian ad litem did attend the hearing.

(4)     It was not appropriate to allow the appeal simpliciter as the action would be left up in the air, and equally it was not right to put the action back for re-hearing or allow it to be fought on a family representation basis as that was not how the present action was begun on the pleadings although it may have been so conducted by the guardian ad litem.

(5)     The best course to take was to order the action to be struck out and then if the plaintiffs were desirous of commencing a new action they could do so.

Appeal allowed: judgment of High Court set aside: action struck out.

Cases referred to:

Djukpan v. Orovuyovbe [1967] N.M.L.R. 287.

Duke v. Davies [1893] 2 Q.B. 260.

Gajender v. Sirdaw [1961] E.A.L.R. 341.

Marsh v. Marsh [1954] A.C. 271.

Fry v. Moore 23 Q.B.D. 395.

Pink v. J.A. Sharwood & Co. Limited [1913] 2 Ch. 296.

Arnison v. Smith [1889] 40 Ch.D. 567.

Rules and Orders referred to:

High Court (Civil Procedure) Rules Order 7, rule 13; Order 28, rule 3.

APPEAL from the High Court of Lagos.

Ajayi for the defendant/appellant.

Odje for the plaintiffs/respondents.

Lewis, J.S.C. (delivering the judgment of High Court)-In Suit W/68/1956 in the Warri High Court the plaintiffs in their writ of the 9th June, 1956, claimed as against one Egharagbemi as defendant in the following terms:-

"The plaintiffs claim against the defendant is for:-

(a)     a declaration of title that the piece or parcel of land known as and called Okan lying and situate at Ughelli which is shown edged in PINK on the plan to be filed by plaintiffs in court is the property of the Useh family.

(b)     recovery from the defendant of possession of that part of the said land on which defendant has erected a building and which portion is shown verged in BLUE on the plan to be filed in court by plaintiffs.

Annual value of land £50.

(c)     an injunction restraining the defendant from further erecting any buildings within, and/or entering, the portion edged blue for any purpose whatsoever without the authority and permission of the elders of the Useh family."

Paragraphs 9 and 10 of their Statement of claim of the 11th of October, 1956, read-

"(9)    The defendant-as a member of the Useh family is not entitled exclusively to any portion of the Useh communal land aforesaid save with the consent of the Useh family elders and that consent defendant has not got.

(10) The defendant has set up a claim to exclusive ownership of the land in dispute and the plaintiffs felt compelled to present this claim."

and paragraphs 10 and 11 of the statement of defence of Egharagbemi of the 11th of January, 1957, read-

"(10) With reference to paragraph 9 of the statement of claim, the defendant admits that no member of the Useh family is entitled exclusively to any of Useh communal lands which are by Ughelli native law and custom vested in the Ovie, but states that the land verged blue on the plan filed by him in court is his exclusive property.

(11) With reference to paragraphs 10 and 11 of the statement of claim, the defendant admits that Okah land was originally founded by Useh but states that Useh gave the land in dispute to his son, Odjeba, for his exclusive use and through whom the defendant derives his title. The defendant further states that the plaintiffs are natives of Eruemukohwarien and Ododegho, respectively, and that they have never, at any period, been in possession of Okah land for residential or farming purposes nor have they ever fished in the ponds thereon."

The case then dragged on for no very apparent reason for nearly 7 years till after the 1st plaintiff began to give his evidence in November 1963, before Ekeruche, J. when a move was made to settle it and it was adjourned.

Then in 1965 the plaintiffs brought a motion before the High Court seeking under 0.7, r. 13 of the High Court (Civil Procedure) Rules the appointment of a guardian ad litem for the defendant as he was too ill to be present in court and on the 9th July, 1965, Prest, J granted the application saying-

"Order as prayed. Ayonuwe Akpamaku, 1st cousin of the defendant is hereby appointed Guardian ad litem for the purpose of defending this suit only. No order as to costs. Case adjourned to 15-11-65 for mention."

Then the case was further adjourned as apparently it was thought that it might be affected by another appeal then before this Court so that eventually hearing began again de novo before a different judge, namely Obaseki, J. in April 1968. Evidence was extensively called by both sides and the defendant was represented by Mr Idigbe. During the course of the evidence of the 1st plaintiff he stated that Egharagbemi was dead and the guardian ad litem, when he in turn came to give evidence, also stated that the defendant was dead, but no one appears to have appreciated the significance of this during the hearing till on the 22nd day of July, 1968, during the course of the final address of Mr Idigbe the learned judge raised the matter and according to the record said-

"Court: Is there any defendant in this matter? Egharagbemi is dead. The defendant Egharagbemi having died before the conclusion of this matter it was for the plaintiffs to substitute some one. There is no defendant.

Case is adjourned to 27th July, 1968 for further hearing."

On the 24th of July, 1968, Dr Odje, Counsel for the plaintiffs, filed a motion in the following terms:-Order 8 Motion on Notice.

Order 8, rule 3 High Court (Civil Procedure).

Rules 1958 Western State of Nigeria.

Take Notice that this Honourable Court will be moved on Saturday the 27th day of July, 1968, at the hour of 9 o'clock or so soon thereafter as Counsel can be heard on behalf of the plaintiffs/applicants for an order formally making Ayonuwe Akpamaku defendant in this case as from the date of the death of the original defendant Egharagbemi, that the writ of summons and subsequent proceedings be amended accordingly, that the proceedings that have already taken place be deemed to have been duly and properly carried out and for such further or other order or orders as may appear to this Honourable Court to be just and proper."

and in an affidavit in support the second plaintiff swore that Egharagbemi "died about 3 years ago." On the same day Mr Idigbe for the guardian ad litem also filed a motion which read-

Motion on Notice

Order 7, rule 9 and Order 14, (Civil Procedure)

Rules, 1958

Take Notice that this Honourable court will be moved on Saturday the 27th day of July, 1968, at the hour of 9 o'clock in the forenoon or so soon thereafter as Counsel can be heard on behalf of the defendant for an order-

1.      granting the defendant leave to amend paragraphs 4, 5 and 10 of the statement of defence by deleting the phrase 'his exclusive property' and substituting therefore the phrase 'exclusive property' of Odjegba family of which the defendant was/is the head.

2.      granting the defendant leave to defend for himself and on behalf of Odjegba family and for any other order or orders to this Honourable Court may deem fit to make in the circumstances."

and in an affidavit in support the guardian ad litem swore-

"That the defendant was sued in his personal capacity and I am advised by my Counsel that in view of the evidence already given in the case, if I am to be made a party, it will be necessary to amend the statement of defence so as to regularise the position."

In his ruling on the 31st of July, 1968, Obaseki, J. said inter alia-

"The writ of summons in this case was filed in 1956 against Egharagbemi. In 1965 as a result of protracted illness of Egharagbemi the plaintiffs sought and obtained an order appointing Ayonuwe Akpamaku guardian ad litem of Egharagbemi for the purpose of defending this suit. Hearing of the suit did not commence till a few weeks ago. During the hearing when evidence was led to the effect that Egharagbemi was dead, the court drew Counsel's attention to that fact and pointed out that as Egharagbemi was dead he ceased to be a party and the appointment of Ayonuwe Akpamaku as guardian ad litem ceased on Egharagbemi's death. To keep the case on the list this application has been brought... Ayonuwe Akpamaku never held himself out as defending the action other than as representative of Egharagbemi and although evidence was led that the land in dispute was the exclusive property of Odjegba family no where is there indication of a defence on behalf of Odjegba family. Both the plaintiff and the defence have closed their cases. It is therefore too late in the day to apply to join the Odjegba family as a defendant (which the application to grant leave to Ayonuwe Akpamaku to defend on behalf of Odjegba family implies).

From the argument advanced in court by both Counsel it is clear that Ayonuwe Akpamaku is now administering the estate of Egharagbemi and it is only in the capacity of administrator of the estate of Egharagbemi that Ayonuwe Akpamaku will be made to defend, and I hereby so order.

There is no basis for making him defendant simpliciter in his own personal capacity. To do so would mean re-opening the case and introducing a new party to the case... The order of amendment of statement of defence will be and is accordingly granted as prayed. The application to make Anyonuwe Akpamaku defendant is hereby granted. He is to defend in the capacity of administrator of estate of Egharagbemi. The pleadings and subsequent proceedings to be amended accordingly. The application for amendment is hereby granted. Amended pleadings to be filed."

Mr Idigbe then apparently continued his interrupted final address and Dr Odje made his final address and subsequently an amended writ, amended statement of claim and amended statement of defence were all filed and the learned judge then on the 25th of November, 1968 gave judgment for the plaintiffs and granted them the relief sought namely a declaration of title, order for possession and an injunction together with 200 guineas costs.

Mr Ajayi who now appears for the defendant/appellant before us argued two grounds of appeal which read-"Error in Law:

1.      The learned trial Judge erred in law in entering judgment for the plaintiffs in this case when:-

(a)     the said judgment was based entirely on evidence taken when there was no defendant to the action as-

(i)      the original defendant had died in March 1967,

(ii)     the whole of the evidence in these proceedings upon which judgment was given was taken between the 22nd day of April, 1968, and the 11th July, 1968, and

(iii)    the application to substitute the present defendant was not made until the 25th of July, 1968 or granted before the 31st of July, 1968.

(b)     The proceedings could not in law be continued while there is no defendant.

(c)     The whole proceedings wherein the evidence for both parties was given was an utter nullity.

The learned trial Judge erred in law in giving judgment against the appellant when:-

(a)     he was not made a party to the action until the 31st day of July, 1968.

(b)     the judgment was based upon evidence taken before that day.

(c)     there was no defendant before the court on those days on which the said evidence was given, and

(d)     the whole proceedings before the order joining the appellant was, in so far as the taking of evidence was concerned a nullity."

Dr Odje for the respondents initially objected to our hearing these grounds of appeal as he submitted they were not raised in the lower courts but on being referred to the decision of this Court in Djukpan v. Orovuyovbe [1967] N.M.L.R. 287 he saw that the issue went to the existence of the action and very properly did not pursue his objection.

Mr Ajayi submitted that a guardian ad litem was not a party to the action and that as the original defendant died before any evidence was called leave could not be granted to the guardian ad litem to defend retrospectively the suit personally after all the evidence had been completed. He referred us to Order 15, rule 7 of the Rules of the Supreme Court in England at pages 247 to 250 of the 1966 Volume 1 Annual Practice and also to Duke v. Davis [1893] 2 Q.B. 260. He further submitted that leave was never granted to the guardian ad litem to defend on behalf of the Odjegba family though the amended statement of defence purported to set up that the land was Odjegba family land. He was in fact appointed to defend as administrator of the estate of Egharagbemi only.

Dr Odje for the respondents submitted that the guardian ad litem was a defendant personally after having been appointed under Order 7, rule 13 of the High Court (Civil Procedure) Rules, because of the definitions of "defendant" and "party" in section 2 of the High Court Law, which read respectively-

"13. Where on default made by a defendant in answering or otherwise defending the suit, after service of the writ, it appears to the court that he is an infant, or a person of weak or unsound mind, so that he is unable of himself to defend the suit, the court may, if it thinks fit, on the application of the plaintiff, or of its own motion appoint by order some fit person to be guardian ad litem."

"defendant"-includes every person served with any writ or summons or process or served with notice of, or entitled to attend, any proceedings in a civil cause and also every person charged with any crime or offence;"

"party"-includes every person served with notice of or attending any proceeding, although not named on the record."

He submitted that all that was done was to ask the court formally to appoint the guardian ad litem as defendant and that though the learned judge did not specifically appoint him retrospectively this was to be implied from the form of the application. He submitted that at the most the failure to make an application until after all the evidence had been taken was only a breach of the rules of court and thus was a mere irregularity. He relied on a Uganda case Gajender Pal v. Sirdaw (1961) E.A.L.R. 341, though we would note here that Sheridan, J. at page 347 said-

"The same considerations apply to a deceased defendant. It is sufficient for the application to be made. Thereafter the duty to implead the legal representatives is thrown on the court and the parties are not to be penalised for any shortcomings in the carrying into effect by the court of this ministerial function. It was the omission of the court which placed both parties in a disadvantageous position and the courts in India have been ready to use their inherent jurisdiction to correct such a mistake."

That case was in our view quite unlike the present one as application was there made to appoint the legal representatives of the deceased defendant at the proper time and it then under the rules of court there in force became the duty of the court to act upon it and due to an error in the court an order was not drawn up but this was held to be no bar to the substitution.

Finally in support of his submission that this was a mere procedural irregularity and that there was no failure of natural justice because the person who could have been appointed ab initio was in fact subsequently appointed he cited to us Marsh v. Marsh [1945] A.C. 271 in particular at page 284 where Lord Goddard in the Privy Council said-

"A considerable number of cases were cited to their Lordships on the question as to what irregularities will render a judgment or order void or only voidable... The practical difference between the two is that if the order is void the party whom it purports to affect can ignore it, and he who has obtained it will proceed thereon at his peril, while if it be voidable only the party affected must get it set aside. No court has ever attempted to lay down a decisive test for distinguishing between the two classes of irregularities, nor will their Lordships attempt to do so here, beyond saying that one test that may be applied is to inquire whether the irregularity has caused a failure of natural justice. There is, for instance, an obvious distinction between obtaining judgment on a writ which has never been served and one in which, as in Fry v. Moore 23 Q.B.D. 395 there has been a defect in the service but the writ had come to the knowledge of the defendant."

On its facts however that case held only that a decree absolute granted a day earlier than permitted by the rules was a mere irregularity but to our minds that was a very different situation to what had happened here.

In our view it is clear beyond doubt that in England a guardian ad litem is not a party to the action. In Duke v. Davis [1893] 2 Q.B. 260 Bowen, L.J. at page 264 said-

"The whole of the argument which has been addressed to us appears to rest on the preliminary illusion that, when one of several defendants dies, the action remains something more than an action against the surviving defendants, and still has some sort of shadowy existence as against the deceased defendant, and therefore that it cannot be dealt with as regards the other defendants without being at the same time dealt with as regards him. That notion appears to me to be fallacious. The truth is, that the action is gone so far as he is concerned, although no doubt there is a power, when a representative of his estate is appointed, of making such representative a party to the action."...

This is exactly the same position as a person of unsound mind suing by his next friend or by his guardian; see Pink v. J. A. Sharwood and Co. Limited (1913) 2 Ch. 286. Moreover this is perfectly understandable as the guardian ad litem is merely representing the defendant for the purposes of the suit and if the person represented dies then until his executor or administrator is substituted the action is in effect in abeyance. This is fundamental to the cause of action and it is not a mere irregularity, as Dr Odje submitted, for the whole of the action to be fought while the defendant is dead and then at the end just before judgment to substitute the administrator of the defendant's estate. Indeed we are by no means satisfied that the substitution by the learned trial Judge was made retrospectively-that was certainly what was asked for but in the passage of his ruling that we have cited he said only "the application to make Ayonuwe Akpamaku defendant is hereby granted. He is to defend in the capacity of Administrator of Estate of Egharagbemi", and it is significant that the application asked for Ayonuwe Akpamaku to be made defendant personally but the learned judge did not grant this but granted leave for him to defend "in the capacity of Administrator of Estate of Egharagbemi." Whilst as a matter of principle it would be perfectly proper to substitute the administrator of the estate of the deceased Egharagbemi for him as defendant we cannot see that it was in fact right here for the learned trial Judge to do so when he did as there was neither any sworn evidence that the guardian ad litem was the administrator of the estate of Egharagbemi nor were the letters of administration produced to him, but he appears to have acted merely on a statement of Counsel in argument. Be that as it may, we are certainly of the view that if he was purporting to appoint him retrospectively to the commencement of the hearing of the action then this was ultra vires his power, but as we have stated we are not satisfied that he in fact did so. If his substituted appointment as administrator took effect as from the 31st of July, 1969 then it would have been necessary to commence the action again to make it valid and the existing evidence could not possibly bind him even if he had purported to take part in the hearing in his capacity as guardian ad litem though he was in fact functus officio throughout the period. In our view Order 7, rule 13 of the High Court (Civil Procedure) Rules put a guardian ad litem in a special category irrespective of the general definitions of "defendant" and "party", but in any case we think that where those definitions refer to a person being "entitled to attend" or "attending" this can only mean rightfully attending and if the basis by which they attend is taken from them then they are not rightfully attending even if, in fact as here, the guardian ad litem did attend the hearing. Once the person he was appointed to represent was dead then he had as right to attend and unless and until the executor or administrator of the deceased was substituted the action was in abeyance.

Having therefore come to the conclusion that what took place was not a mere irregularity but fundamental to the action the question arises what order we should now make apart from allowing the appeal which automatically follows. Mr Ajayi initially suggested a new trial could be ordered or a non-suit entered, but subsequently he maintained we should only order a non-suit or just allow the appeal simpliciter, as was done in Arnison v. Smith (1889) 40 Ch.D 567. That case however to our minds was rather different as the application by executors of some deceased plaintiffs to be joined in an action after final judgment was refused in the lower court and the Court of Appeal merely dismissed the appeal against that refusal though it is to be noted that Cotton, L. J. at page 571 said-

"We have no doubt that the plea of res judicata could not be set up against the appellants in a fresh action. The deceased plaintiffs were not parties at the time of trial, and there is no judgment against them."

Dr Odje for his part asked for the case to be put back for re-hearing and submitted that we could not order a non-suit as if we held that the action was in effect a nullity then no evidence had been offered and Order 28, rule 3 of the High Court (Civil Procedure) Rules which reads-

"The court may in any suit, without the consent of parties, non-suit the plaintiff, where satisfactory evidence shall not be given entitling either the plaintiff or defendant to the judgment of the court."

did not arise. We think Dr Odje is quite correct in this submission as to a non-suit and we do not think that we should order it here. However, after careful consideration we do not think we should do what either Counsel asks. It is not appropriate as we have already said just to allow the appeal simpliciter as the action would be left up in the air, and equally we do not think it right to put the action back for re-hearing nor allow it to be fought on a family representation basis as that was not how the present action was begun on the pleadings although it may have been so conducted by the guardian ad litem as Dr Odje submitted. We think the best course to take is to order the action to be struck out and then if the plaintiffs are desirous of commencing a new action they can do so. We accordingly allow the appeal, set aside the judgment of Obaseki, J. granting a declaration of title, an order to possession and injunction together with his order as to costs and we order that the action be struck out.

To our minds both parties were at fault as both knew the defendant was dead but chose to go on with the action notwithstanding that fact till at the address stage the learned trial Judge drew their attention to the issue of the necessity for substitution. In the circumstances we think it fairest that each party should bear its own costs in the High Court and we accordingly make no order as to costs there. The appellant however is entitled to his costs of this appeal which we assess at 97 guineas.

Appeal allowed: judgment of High Court set aside: action struck out.