FABUMIYI & ANOR V. OBAJI & ANOR

• Pages: 231-233

FABUMIYI & ANOR V. OBAJ1 & AMOR

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The appeal is accordingly allowed, the decision and order of the High Court

is set aside and judgment is entered for the plaintiff in terms of his writ. The plain-

tiff is entitled to his costs in this appeal which we assess at 50 guineas and to his

costs in the High Court which we assess at 60 guineas.

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Appeal allowed.

FABUMIYI & ANOR V. OBAJI & ANOR

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CHIEF O.A. FABUMIYI AND ANOTHER

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APPELLANTS

V.

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F.A. OBAJI AND ANOTHER (substituted

for Madam Ibilola)

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RESPONDENTS

SUIT NO. SC 54/1965

SUPREME COURT OF NIGERIA

ADEMOLA,

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C.J.N.

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BRETT,

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J.S.C.

COKER,

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J.S.C.

29th September, 1967

Civil Action - Practice and procedure - Injunction to restrain defendant from

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further acts of trespass - Whether it may issue against personal representatives

substituted for deceased defendant

Legislation - Administration of Estates Law (W.N.) section 15(1).

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ISSUE:

1. Whether under section 15(1) of the Administration of Estates Law (W.N.) a

remedy of injunction sought against a deceased defendant, may issues against

personal representatives later substituted.

FACTS:

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The plaintiffs/appellants had claimed in the High Court a declaration of title to

certain land, damages for trespass and an injunction against the defendant and

her servants, and agents. The present respondents were not the original defend-

ants to the action but were substituted by order of the Supreme Court for one

Madam Ibilola, the original defendant, who died after the appeal had been argued

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but before judgment. The substiturion of the defendant's personal representatives

as respondents was done at the instance of the plaintiffs. The question that arose

was whether the injunction could be issued against them. Counsel for the plain-

tiffs submitted that the remedy could be granted against the deceased's estate. He

referred to section 15(1) of the Administration of Estates Law of Western Nigeria

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by virtue of which all causes of aciion subsisting against or vested in a deceased

person survive against or for the benefit of his estate, excluding causes of action

for defamation, seduction, inducing one spouse away from the other, and dam-

ages for adultery.

(There was nothing in the pleadings and evidence to justify the grant of an in-

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junction against the substituted respondents themselves).

HELD:

1.

Section 15(1) of the Administration of Estates Law requires that the remedy

sought must be one which could properly be granted to or against the personal

representatives for or against the estate; here the remedy of injunction sought