LEGAL PRINCIPLE: CIVIL PROCEDURE — Representative Actions — Survival of Action — Death of Named Plaintiff in Representative Capacity Does Not Terminate Proceedings
PRINCIPLE STATEMENT
When an action is instituted in a representative capacity, the death of the named plaintiff does not terminate the proceedings because the action is also on behalf of those represented; however, the action cannot be prosecuted until a living person is substituted.
RATIO DECIDENDI (SOURCE)
Per Eso, JSC (as adopted by Wali, JSC), in Okonji v. Njokanma (1989) 4 NWLR (Pt. 114) 161 at pp. 166–167; quoted in Okoli & Ors v. Surveyor-General Anambra State (2002) NLC-571997(SC) at p. 12; Paras E–B.
"When an action is instituted in a representative capacity and or against persons in representative capacity that action is not only by or against the named parties. They are also by and against those the named parties represent. Those are not stated nomine. Indeed, they may be one or two or more, indeed they may be legion. And so, if all the named parties die the action still subsists on behalf of or against those they represent but who have not been stated nomine. As it is an action on trial, it is also when the matter is on appeal. The appeal, as the case may be, subsists but the action or the appeal, again, as the case may be, cannot be prosecuted until a living person has been substituted for the named dead party."
EXPLANATION / SCOPE
A representative action continues despite the death of the named plaintiff. The action is brought on behalf of a class. The class members are not named individually. The proceedings do not abate. However, the action cannot proceed until a living person is substituted. The principle applies to both trial and appeal. The court may order substitution of a representative. The rule prevents the termination of representative actions due to the death of the named party. The represented persons have a continuing interest. The court will protect the interests of the class. The principle promotes continuity in representative litigation.