In Re: Abdullahi [2018] 14 NWLR (Pt. 1639) 272 at 292, para. H, per Augie, JSC:

“The deceased Appellant died after filing the appeal against the decision of the Court of Appeal in this Court. Yes, the appeal died with the deceased Appellant, but his estate survived him, and being administrators of the deceased Appellant’s estate, the Applicants have an interest in his estate that lives on, and which cannot be left hanging.”

Per Kekere-Ekun, JSC, pp. 295-296, paras. G-A:

“…I am persuaded that having regard to the fact that the decision of the lower court affects the pecuniary interest of the Applicants in the estate of the deceased and they are not seeking to pursue the appeal against the conviction and sentence of the deceased, the justice of the case requires that they be permitted to challenge the decision on Ground 9 only.”

Notes:

The above case provides us with an interesting scenario for which the Supreme Court had to rise up to the occasion with a commendable pronouncement. The facts are that Late Brigadier General James Omebije Abdullahi was, prior to his death, charged before the General Court Martial and was tried, convicted and sentenced. The trial Court also ordered a forfeiture of the deceased’s landed property. Subsequently, the Army Council confirmed his conviction but reduced his sentence and also ordered him to pay the sum of N33,500,000.00 (Thirty-Three Million, Five Hundred Thousand Naira) to the Nigerian Armed Forces within 90 days, and directed that the deceased’s personal property be confiscated to recover the money if he failed to pay as ordered.

The deceased appealed to the Court of Appeal which affirmed the decision of the General Court Martial as confirmed by the Army Council and ordered a forfeiture of the deceased Appellant’s landed property. Still aggrieved, the deceased Appellant appealed to the Supreme Court. While the appeal was still pending, he died.

The wife and son of the deceased Appellant obtained letters of administration over his estate including the landed property. Thereafter, they (as Applicants) applied to the Supreme Court to be substituted for the deceased Appellant. They sought to prosecute the appeal on only one of the grounds (Ground 9) as contained in the deceased Appellant’s Notice of Appeal which touches on the deceased Appellant’s landed property. In the said ground, it was contended that contrary to the decision of the Court of Appeal, the Army Council did not order the forfeiture of the deceased Appellant’s landed property. The Applicants argued that, although the deceased Appellant was ordered to pay N33,500,000.00 to the Nigerian Armed Forces, the deceased Appellant’s property was valued at N83,100,000.00 as at 2005 and had been confiscated by the Respondents. The Applicants further stated that they and the other children of the deceased Appellant had a legal interest in the difference between the actual value of the property and the sum of N33,500,000.00 the Army Council ordered the deceased Appellant to pay. The Applicants therefore submitted, relying on foreign judicial authorities, that their interest in the deceased Appellant’s estate survived the deceased Appellant’s death. The Respondents opposed the Applicants’ application arguing that the Nigerian Constitution does not permit the Applicants’ application and that the foreign cases cited were merely persuasive.

The Supreme Court took time to consider the issue, acknowledging that the issue presented was novel as there was no established precedent in Nigeria where an applicant has been substituted for a deceased appellant in a criminal appeal. The apex Court, per Augie, JSC succinctly restated the established position of the law in Nigeria prior to the filing of the instant application by the Applicants thus:

“Yes, with regard to criminal cases, prosecution ceases with the death of an accused, who is already dead. To put it in clear perspective, in a civil trial, if the plaintiff or defendant dies, their estate would usually continue. So, if the plaintiff dies, the beneficiaries and heirs to the plaintiff’s estate inherit the lawsuit, and they may choose to continue to press for damages, which becomes their property. Similarly, when a defendant dies during civil lawsuit, his estate may be forced to defend the suit in order to prevent a judgment that is detrimental to the case, and the estate is, therefore, substituted for the deceased defendant. In a criminal trial, there is no plaintiff, and that role is taken by the State which cannot die. If the accused or defendant dies, that is the end of the case.”

Having stated the position of the law at the time regarding the prosecution of criminal appeal, the Supreme Court however further acknowledged that the contention of the Applicants to the effect that their interest in the deceased Appellant’s estate survived the deceased Appellant’s death (especially in view of the deceased Appellant’s landed property in question) was a worthy contention. The Court considered the foreign judicial authorities cited by the Applicants such as Regina v. Rowe (1955) 1 GB 573, Hodgson v. Lakeman (1943) KB 15 and R. Jefferies (1968) 3 All ER 238 wherein it was held that if the estate of a deceased person could satisfy the court that they have an interest in the appeal, the court, in its inherent jurisdiction can allow them to proceed with the appeal. Clearly, from these cases, it does appear that the kind of interest in question must be some form of pecuniary interest. For instance, in Regina v. Rowe (supra), Lord Goddard CJ reasoned that if in a case the widow of the deceased appellant merely wishes to prosecute the appeal just to clear the name of her deceased husband, the court would not be inclined to take any notice of such interest which the court termed as “sentimental interest”.

Upon a review of the foreign cases, the Supreme Court relied on the trite principle which states that foreign cases are merely persuasive and that in deserving situations, the court may apply them to resolve issues and thereby expanding the frontiers of Nigerian jurisprudence. In a reasoned conclusion, the apex Court granted the Applicants’ application holding, as quoted above, that “…the Applicants have an interest in his estate that lives on, and which cannot be left hanging.” Augie, JSC clarified:

“Hanging, in the sense that the Court of Appeal is functus officio, and they cannot go to any lower court to complain about the wrong done to the estate. The Applicants are, therefore, between a rock and a hard place. It is the duty of this Court, which is placed above the Court of Appeal, to provide a remedy, and that it is to allow them air their grievance, and let this Court decide its merit. Obviously, with the arguments laid by the parties, this is the only way to go.”

The Supreme Court rightly applied the maxim, ubi jus ibi remedium, in granting the application, allowing the Applicants to continue the appeal.

It is decisions like this that keep reassuring the people that the court is truly the last hope of the common man. The pecuniary interest of the Applicants and other children of the deceased Appellant in the estate is of compelling importance. The Respondents have nothing to lose if the appeal is prosecuted to logical conclusion. The Supreme Court is commended. So too, Learned Senior Counsel for the Applicants, Y. C. Maikyau, SAN.