PERSONAL RIGHT OF ACTION DIES WITH A PARTY AND SUBSTITUTION OF PARTIES WOULD NOT BE ALLOWED BY COURTS.
PERSONAL RIGHT OF ACTION DIES WITH A PARTY
AND
SUBSTITUTION OF PARTIES WOULD NOT BE ALLOWED BY COURTS
BY
OLANIYI TIMOTHY OLAMIDE
INTRODUCTION
1. The rules of our courts provide for several applications which counsel may make or apply through motion in court on behalf of his client and one of such applications is application for substitution of party.
2. Litigation as one of the mechanisms of dispute resolution sometimes outlive parties in dispute and when this happens, an application is needed to be filed for substitution of party to replace the demised party.
3. Action before the court can either be in rem or personam.
DEMYSTIFICATION OF ACTION IN REM AND PERSONAM
4. What may constitute the meaning of action in personam and action in rem has no one definition [1]. It depends on the context from which one looking at. However, effort would be made anon to use the terms in very limited legal sense as far as this short piece is concerned and differentiate between the two through judicial authorities.
5. To begin with, in personam literally means against the person while in rem means against the property i.e the res (the subject matter of the suit).
6. In other words, all actions which are aimed at the person requiring him to do or not to take or to take or not take an action or course of conduct are actions in personam. See the case of Rhein Mass Und See GmbH V. Rivway Lines Limited (1998) 5 NWLR(Pt.549)265 at 277/278
7. Whilst, all actions in which the subject matter is itself sought to be affected and in which the claimant is enabled to arrest the ship or other property and to have it detained until his claim been adjudicated upon or until security by bail has been given for the amount or for the value of the property proceeded against where that is less than the amount of the claim are actions in rem see the case Rhein Mass Und See GmbH V. Rivway Lines Limited (SUPRA)
8. An action in personam is designed to settle the rights of the parties as between themselves [2]. Example of personal action is mostly found in tort of defamation. Equally as regards criminal cases, prosecution terminates with the death of an accused person. This is simply because no sentence can be passed on the accused, who is already dead. See the Supreme Court case of RE ABULLAHI (2018) LPELR-45202(SC)
THE COMMON LAW MAXIM OF ACTIO PERSONALIS MORITUR CUM PERSONA
9. The demised of one of the parties in the law suit terminates the legal proceeding. This principle is usually put in the Legal Maxim as Actio Personalis Moritur Cum Persona.
10. It is the principle of early law that the death of either party to a personal duty takes away all remedy and destroys the duty [3].
11. It should be noted that this common law maxim has been modified by the intervention of statutory provisions. However,in the absence of statutory provision, the principle would be invoked. see the case of Abdulmumini v. Mela (2017) LPELR-43027(CA)
12. The above principle of law was invoked by the the Court of Appeal in the case of Abdulmumini v. Mela Supra
13. It should also not be forgotten that before a court is permitted to invoke the common law principle, a thorough examination of the action before it in which the maxim is sought to be invoked should be carried out.
CONCLUSION
14. In conclusion, most personal civil trial terminates with the death of one of the parties and the law suit would not be inherited by the deceased’s estate nor an application can be brought for substitution of parties save the intention of a statutory provisions.
References
1. For instance, the definition of Action in rem and personam was given four different meanings in an article titled ‘The Power of Courts Of Equity. ‘ In rem’ and ‘In personam available at https://www.jstor.org/stable/1110531?seq=1#metadata_info_tab_content accessed on 22nd , December 2020
2. ‘Cheshire ad North’s Private International Law 13th Ed.199 at page 285
3.’ Actio Personalis moritur cum persona’ available at www.google.com/amp/ lawtimesjournal.in/action-personalis-moritur-cum-persona/%3famp.accessed on 23rd , December 2020.
Olaniyi Timothy Olamide
Faculty of Law
ABU, Zaria.
08144856315
December 23, 2020