Generally, a dead person is no longer in the eyes of a person but in the eyes of the law, he is a person who ceased to have any legal personality from the date of his death and as such, can neither sue nor be sued personally or in representative capacity, the personality of a human being is extinguished by this death. Thus, the common law principle of action personalis moritur cum persona presupposes a cause of action arising when both the plaintiff and the defendant are alive and will regard the cause of action as ceased upon the death of either the plaintiff or the defendant. 

See Kareem v. Wema Bank Ltd (1991) 2 NWLR (Pt.174) 495, Akunmoju v. Mosadolurun (1991) 9 NWLR (pt.214) 296, Hodge v. March (1936) A.E.R 484.

As rightly submitted by learned counsel for the respondent, Issue 2 (two) is basically a question of law and indeed a plethora of cases have made pronouncements classification and clarifications where an action can survive the plaintiff(s) or defendant(s) in a pending suit if either of the parties dies. Agreeably, parties to a suit are the proper parties but if in the course of proceedings in court, circumstances of the parties changes, thereby making such party unable to carry on with the suit e.t.c. then it necessary upon an application to court, to alter the party concerned. Consequently, it becomes necessary for whoever inherits his property (i.e. beneficiary) or anyone designated as his legal representatives, executor, administrator, or trustees to be substituted in place of the deceased in order to continue the pending actions in court. 

See: Akumoju vs. Mosadolarun (1990) 9 NWLR (Pt.214) 236 @ 242; Eyesan v. Sanusi (1984) 15 N.S.C.C. 271 @ 283; Tesi Opebiyi v. Shittu Oshoboja & Anor (1976) 10 S.C. 195.

However, it is not every pending action of a deceased that enjoys this position of law, there are action that will automatically abate if the death of a party is occasioned, these are actions that are strictly personal in nature such as:-

(i) action to enforce a contract of personal service;

(ii) action for breach of promise to money, or seduction;

(iii) action for defamation;

(iv) action for enticements and harbouring.

Where the cause of action is not personal to the plaintiff/defendant as in this instant case, then such action can survive the deceased party. The only caveat to this is that the appropriate steps are taken to substitute a living person for the deceased. 

See: Akumoju vs. Mosadolorun (1990) 9 NWLR (Pt.214) 236 @ 242. 

Also Order 11 Rule 38 of the Ondo State Rules of the High Court 1987 the appropriate steps enunciated in the rules are basically 2 (two):

(i) Make an application;

(ii) The application must be made within reasonable time. PER SOTONYE DENTON WEST, J.C.A.

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