Legal Maxims

• Pages: 295-372

LEGAL MAXIMS

* (1) LEGAL MAXIMS

701. A verbis legis non est recedendum.

From the words of the law there must be no departure.

702. Ab assuetis, non fit injuria.

From things to which we are accustomed no legal wrong can arise.

703. Abundans cautela non nocet.

Extreme care does no mischief.

704. Accessorium sequitur principale.

“The maxim is accessorium sequitur principale-an accessory thing goes with the

thing to which it is accessory. See: Tukur v. Government of Gongola State (1989)

4 N.W.L.R. (Pt. 117) 517 at 564. Since I have opined in the preceding issue just

discussed the appellant bank is not liable in negligence in the handling of the plaintiff’s

– 1st respondent’s cheque Exhibit II, the question of interest on the value of the

cheque and damages for negligence pale into insignificance.” - Per Edozie, J.C.A. in

B.O.N. v. Maidamisa Suit No. CA/J/287/93; (1997) 10 N.W.L.R. (Pt. 525) 408 at

422.

705. Accessorium sequitur suum principale.

That which is accessory or incidental follows its principal, e.g., crops or fixtures go

with the land they are on.

706. Accusare nemo se debet.

No one is bound to accuse himself.

707. Actio personalis moritur cum persona.

(1) “Now it has always been a matter of common sense that an action by a plaintiff

is always instituted against a living person or a legal persona. Where the defendant,

ceases to enjoy the attributes of a legal persona or juristic personality he cannot be

made a defendant stricto sensu. Any action instituted against a legal person but who

is now dead will henceforth abate unless appropriate steps are taken to substitute a

living person for the deceased.” - Per Achike, J.C.A. in Akumoju v. Mosadolorun

Suit No. CA/K/207/89; (1991) 9 N.W.L.R. (Pt. 214) 236 at 242.

(2) “Although a dead person is generally regarded in law as one whose legal rights

295

Legal maxims

*Foreign legal maxims and their meanings still relevant in Nigerian law have been compiled vide

Aiyar’s Judicial Dictionary 10th Ed. 1988

Para. 707 Vol. 15: LEGAL MAXIMS 296

had ceased with his death under the maxim actio personalis moritur cum persona

there may be instances where such an action will survive the dead party, like in the

present case which was brought in a representative capacity in certain circumstances

where the action is not personal. In the instant case, contrary to what the learned trial

Judge held in his ruling, even if both the two named plaintiffs had died either prior to

or after the issue of the writ, the action would still survive as it was a representative

action and any member of Okon Clan Council of Chiefs can apply to be substituted

with the dead named plaintiff.” - Per Adamu, J.C.A. in Ebongo v. Uwemedimo Suit

No. CA/E/131/94; (1995) 8 N.W.L.R. (Pt. 411) 22 at 42.

(3) “In support of the applicability of the maxim Chief Olanipekun cited and relied on

Nzom v. Jinadu (1987) 2 S.C.N.J. 117 (or (1987) 1 N.W.L.R. (Part 51) 533. In this

case, the plaintiff instituted an action against one Patrick Nzom for himself and on

behalf of the family of J.C. Nzom, deceased, for an injunction, trespass and to render

account of certain moneys. Since 1970 it was not disputed that Patrick Nzom died in

1949 that is, about 21 years before the cause of action arose in 1949. The Supreme

Court held that the maxim actio personalis moritur cum persona was completely

irrelevant to the proper consideration of whether or not the cause of action survived

the deceased. It was patently absurd for an action to be instituted against the de-

ceased who had died 21 years earlier and before the cause of action arose. I there-

fore hold that the authority of Nzom v. Jinadu (supra) on its distinct facts is plainly of

no relevance to the appellant’s case. Chief Olorunnisola for the respondent and in

support of his contention cited, first, Eyesan v. Sanusi (1984) 1 S.C.N.L.R. 353. In

that case, both parties were alive when the trial High Court dismissed the plaintiff’s

claim and the plaintiff appealed. Before the appeal was disposed of, the respondent

died intestate. On application and by order of the Court, two sons of the respondent

sought to be substituted for the deceased intestate.

The application was refused by the then Federal Court of Appeal. On appeal,

the Supreme Court allowed the appeal and held that the cause of action did not die

with the deceased but survived against the estate. Learned counsel buttressed this

principle with the authority of Inua v. Nta (1961) All N.L.R. (Pt. 4) 576, a decision

that was approved in Eyesan v. Sanusi (supra). In Inua v. Nta (supra) the plaintiff/

appellant died while the appeal was pending, and upon application, his heir-in-law

was successfully substituted for the deceased.” - Per Achike, J.C.A. in Akumoju v.

Mosadolorun Suit No. CA/K/207/89; (1991) 9 N.W.L.R. (Pt. 214) 236 at 242.

(4) “It is not disputed that as a matter of general principle a personal action, subject of

course to the rules as to the survival of actions, dies with the person (Actio person-

alis moritur cum persona).” - Per Aniagolu, J.S.C. in Nurses Association v. A-G.

Suit No. S.C. 69/1980; (1981) 12 N.S.C.C. 441 at 445.

(5) “That situation may be correct in a personal action founded on the tort of a

defamation, seduction or enticement of a wife, etc. It does not avail where an interest

297 Legal maxims Paras. 707-709

accrues to the estate of the deceased.” - Per Omage, J.C.A. in Waniko v. Ade-

John Suit No. CA/K/255/94; (1999) 9 N.W.L.R. (Pt. 619) 401 at 413.

(6) “The maxim “Actio personalis moritur cum persona” means that the right of a

personal action dies with the party.” - Per Omage, J.C.A. in Waniko v. Ade-John

Suit No. CA/K/255/94; (1999) 9 N.W.L.R. (Pt. 619) 401 at 413.

(7) A personal action dies with the person.

708. Actio persona moritur cum personae and its application to action for

defamation.

(1) “The common law maxim is “actio personalis moritur cum personae” (a per-

sonal action dies with the person). The rule has been modified by statute. The present

position is that on the death of any person all causes of action subsisting against or

vested in him shall survive against or as the case may be, for the benefit of his estate.

But there is no survival of causes of action for defamation or seduction or for induc-

ing ones spouse to leave the other or for damages for adultery. See in Re Aluko No.

1 (1992) 2 N.W.L.R. (Pt. 223) 341 at 347. It seems to me therefore that whatever

angle one looks at it, the damages awarded in favour of the respondent for defama-

tion is unsustainable.” - Per Edozie J.C.A. in B.O.N. Ltd. v. Muri Suit No. CA/J/23/

96; (1998) 2 N.W.L.R. (Pt. 536) 153 at 168.

(2) “Both applicants (the deceased appellant’s wife and his eldest son) have applied

to this Court to be substituted for the deceased appellant (Professor O. Aluko). The

learned counsel objected to the application for substitution. I have in addition consid-

ered the submissions of both learned counsel. The objection I believe is rooted on the

Latin maxim “actio personalis moritur cum personam” meaning a personal action

dies with the person. Where either party to an action of libel or slander dies before

verdict, the action abates. Thus if the dead are defamed, neither their personal repre-

sentatives nor their family can sue to protect their reputation, unless the allegation

reflects on the living. The personal representatives of a deceased plaintiff cannot

continue the action even though special damages may have accrued to the plaintiff’s

estate. See Pulling v. G.E.R. (1882) 9 Q.B.D. 110. This is the position at common

law. The action cannot also be continued against the personal representatives of a

deceased defendant .” -Per Ogwuegbu, J.C.A. in Re. Aluko Suit No. CA/1/245/88;

(No. 1) (1992) 2 N.W.L.R (Pt. 223) 341 at 346.

709. Actio personalis moritur cum persona where interest accrues to the

estate of the deceased.

“On issue No. two, the appellant appealed against the order of the High Court Kaduna

hearing an appealing from the Upper Area Court and the said Court took cognisance

of the fact of transfer of the title to the land in dispute by Nwofor, the appellant in the

Court below to the successor in title the appellant in this appeal. The transfer was