AKPAMAKU V. IGBEN & ORS.

• Pages: 180-188

180

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NIGERIAN SUPREME COURT CASES

[1970] N.S.C.C.

lars of claim, namely, a declaration that the purported sale of a portion of the

property known as 61 Princess Street, Lagos, was invalid and also grant the plain-

tiffs claim as against the defendant for possession. The defendant's counter-

claim is dismissed. The plaintiff is entitled to her costs of this appeal from the

defendant, J.B. Ogunsanya, which we assess at 72 guineas and to her costs in the

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5

High Court which we assess at 80 guineas.

Appeal allowed. Judgment of High

Court set aside; declaration

sought by plaintiff granted.

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AKPAMAKU V. IGBEN & ORS.

15

AYONUWE AKPAMAKU

V

IGBEN AND OTHERS

APPELLANT

RESPONDENTS

SUIT NO. SC 137/1969

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25

SUPREME COURT OF NIGERIA

LEWIS,

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J.S.C.

FATAI-WILLIAMS, J.S.C.

SOWEMIMO,

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J.S.C.

15th May, 1970

Land Law - Declaration - Title to land - Guardian ad filem not a party to

action - Merely representing defendant for purposes of suit -

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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

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Procedure) Rules.

ISSUE:

1.

Can a

Guardian

and Litem

(not being a party to the action) represent a defendant

who is dead?

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FACTS:

The plaintiff's claim as against the defendant is a declaration of title to a piece

of land, recovery from the defendant of possession of that piece of land and an

injunction restraining the defendant from erecting buildings thereon. The case

dragged on for almost seven years whereupon the plaintiffs brought a motion be-

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fore the High Court seeking under 0.7, r.13 of the High Court (Civil Procedure

Rules) the appointment of a

guardian and !item

for defendant as he was too ill to

be present in court. The court granted the application but the defendant died soon

after.

HELD:

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1.

A

guardian ad !item

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.

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2.

Order 7 Rule 13 of the High Court (Civil Procedure Rules puts a

guardian and

!item 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