Can An Application to Substitute a Deceased Accused/Appellant Be Granted in a Criminal Appeal?


By Folorunsho Faozy Aduagba  


Criminal Proceedings/trials have always been viewed as a serious business by our courts, this is so because the accused person’s life or liberty is dependent on the outcome of the trial. As a result the constitution granted the accused person the unbridled right of appeal.

However, the significant questions this writer intends to address in this article are whether, in a situation where the accused person died while exercising his right to appeal, can an application for the substitution of such deceased person be granted in a criminal appeal, and whether, in a situation where an Order of a court  affects the deceased’s estate, can the legal representative or relative of the deceased accused person be substituted? To put it another way, can the estate administrators step into the shoes of the deceased/appellant and prosecute the appeal In a criminal matter?.

The Concept of Substitution of a deceased party on Appeal.

 It needs to be stated that it is a trite law that a dead person cannot sue and be sued. That is to say, a dead person has ceased to have the legal capacity to seek any relief in court. See the case of NZOM V. JINADU (1987) 1 NWLR (PT.51) 533 at 541, where Oputa JSC (of blessed memory) enthused as follows;

“It is true that the dissolution of legal person is analogous to the death of an ordinary human person. Now dead Men are no longer legal person in the eye of the law as they have laid down their legal personality with their lives at death. Being destitute of rights or interest they can neither sue nor be sued”

It follows that, it is not unnatural for a party to die while a case (appeal) is pending, and it will become necessary to replace the deceased with a living person. The rules of several appellate courts in Nigeria control the provision relating to substitution of a party on appeal, whether civil or criminal. for instance, the Court of Appeal Rules 2016 by virtue of Order 15(2) provides that;

(2)  it is necessary to add or substitute a new party for the deceased, an application shall, subject to the provisions of Order 4 Rule I 0, be made in that behalf to the court below or to the Court either by any existing party to the appeal or by any person who wishes to be added or substituted.

Accordingly, it can be garnered that an existing party to the appeal or any person who seeks to be joined or substituted must make an application to the Court to substitute a new party for the deceased. See the case of MAINSTREET BANK LIMITED v. MAIWADA (2017) LPELR-CA/J/131M/2017 where it was held that;

“The law is settled that a dead party cannot sue or be sued. Where an appeal subsists, the law stipulates that a party to the appeal may apply to substitute another person for the dead party or any other person applying to be added to the appeal or to substitute the dead party. That is the tenure of the Rule 2 of Order 15, I have underline the relevant provisions of the rule to underscore the real import of the provisions of the rule. It is a surviving party in a subsisting appeal another person not being a party in the appeal that can apply to be added to the appeal or to be substituted for the dead party”

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Unlike in civil cases, where the basis for the substitution of a deceased person has been firmly Settled, this writer contends that this is not the case in criminal appeal. To put it another way, before an application for the substitution of a party can be granted, the court must bear the following in mind. Viz;

  • Whether or not the action in which the applicant seeks for his substitution survives the deceased party to be substituted for.
  • Whether the deceased sued in a representative capacity.
  • the deceased did not sue in a representative capacity, but the pleadings and claims show conclusively that the claim is in a representative capacity. See the cases of IROECHE v. IZUOGU & ORS (2019) LPELR-CA/OW/9/2017(R) ; IN RE: APEH & ORS (2017) LPELR-42035 (SC)

Can an Application for the substitution of a deceased appellant be granted in criminal appeal?

The question, in this writer’s modest opinion, will be answered in the positive It is now fairly settled that a court can order the forfeiture of property or assets obtained as a result of the crime. The question is whether, in a circumstance where such order affects the estate of a deceased accused, can the Administrator of his estate or relative file an application for substitution?.

A recourse to judicial decision would   more light to the issue in IN RE: ABDULLAHI (2018) LPELR-45202(SC)  Brigadier General Abdullahi was tried on a 6 count charge and convicted on 5 counts by a General Court Martial (GCM). He was sentenced to 2 years imprisonment each on the 5 counts. The court also ordered the forfeiture of his landed property at plot 741, Cadastral Zone B2, Durumi District, Abuja, The Army council confirmed the conviction but reduced the sentence to 1-year imprisonment on all the counts which are to run concurrently not consecutively meaning that he was now to serve a term of 1 (one) year only. He was ordered to refund the sum of N33,500,000.00 (Thirty-Three Million Five Hundred Thousand Naira) only to the Nigerian Armed Forces within 90days from the date of the order. If there is default in refunding the money, the personal property is to be confiscated to recover the said amount. The convict unsuccessfully appealed to the court of appeal which was dismissed hence his appeal to the Supreme Court. During the pendency of the appeal, the appellant died. The wife and son obtained letters of administration of his estate including the landed property the subject of forfeiture and appeal. Afterwards, they applied to the Supreme Court to be substituted for the deceased appellant for the purpose of arguing the only ground of appeal (no. 9) related to the forfeiture of the landed property which they contended that the Army Council did not order the forfeiture of the appellant’s landed property. It was argued inter alia that the applicants and other children of the deceased had a legal interest in the difference between the actual value of the property and the sum of N33,500,000.00 the Army Council ordered the deceased appellant to pay as the property was valued N83, 100, 000.00 (Eighty Three Million and One Hundred Thousand Naira) only as at 2005. It was submitted that their interest in the appellant’s estate survived the appellant’s death.

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In IN RE: ABDULLAHI (Supra) the supreme Court per Justice Augie JSC restated the general rule regarding a deceased accused in criminal case as follows;

“[I] have weighed every angle of the arguments for and against this Application, and I find myself leaning towards the position advanced by the Applicants. Yes, with regard to criminal cases, prosecution ceases with the death of an accused, which goes without saying, since no sentence can be passed on the accused, who is already dead. To put it in clear perspective, in a civil trial, if the Plaintiff or Defendant dies, their estate would usually continue. So, if the Plaintiff dies, the beneficiaries and heirs to the Plaintiff’s estate inherit the lawsuit, and they may choose to continue to press for damages, which becomes their property.” (underlining is mine)

Besides, it is also the law that criminal liability is personal to the accused, and it cannot be transferred. Thus, the position of the law is that anyone who contravenes the law should carry his own cross. This much was stated by my Lord Augie JSC in PML (NIG) LTD V FRN (2017) LPELR-43480(SC) Where it was held that ;

“it will not be a valid defense in law for any person, who is alleged to have committed an offence to argue that while committing that offence he was acting as an agent of a principal since it is not a defense that is known to law. Very true; criminal liability is personal, it cannot be transferred because the mens rea or actus reus is on the accused in Court – SeeAkpa v State (2008) 14 NWLR (pt. 1106) 72.” See also YUSUF v. FRN (2016) LPELR-CA/S/98C/2016

The vexed question at this juncture is can such application be granted? The court in IN RE: ABDULLAHI (Supra) observed that since they do not intend to continue the whole appeal except for ground 9 as it relates to the estate, the court relied on the foreign authorities of Hodgson v. Lakeman (1943) KB 15 and R v. Jefferies (1968) 3 ALL ER 238 where similar applications were granted.

In the latter case of In R. v. Jeffries (supra), the Court of Appeal Criminal Division of England held that; :

“We agree with LORD GODDARD’s observation that there can be cases in which injustice might result on it being established that personal representatives having a legal interest were wholly without remedy: though such cases we understand are infrequent”

It is on this basis that the Supreme Court granted the application by invoking the equitable Maxim of “ubi jus ibi remedium” (For every wrong, the law provides a remedy). The court through my Lord Amina Augie JSC  (concurring) was of the view that;

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As I said earlier, I am walking a tightrope in considering this Application; I cannot say that the estate of the deceased Appellant suffered a wrong at the hands of the Respondents; that is a substantive issue best left for the Appeal. However, I can say that the Applicants are entitled to be heard on the matter.

The reason is simple: there is nowhere else for the Applicants to go since the Court of Appeal already made a pronouncement on the merits of the Appeal filed by the deceased Appellant in that Court. … Yes, the Appeal died with the deceased Appellant, but his estate survived him, and being Administrators of the deceased Appellant’s estate, the Applicants have an interest in his estate that lives on, and which cannot be left hanging.”

My Lord Justice Peter Odili J.S.C (concurring) also shared similar view thus;

“[I]t means that if this application is not granted, the applicants would have no other avenue of seeking redress. This is the only Court that can review the decisions of the Court of Appeal. Having alleged a wrong by the decision of the Court of Appeal, which directly affects them, are they to be left without a remedy?”

The implication of this decision is that it has expounded the appellate courts’ jurisdiction over the substitution of a deceased appellant in criminal appeals. It should be noted, however, that this is only applicable in circumstances where the deceased’s estate has been affected by the order of the court. See IN RE: ABDULLAHI (Supra)

This writer also believes that the relatives and/or legal representative can be termed in this regard as an ‘interested party’ in criminal appeal. It Is  this writer’s modest recommendation that the 1999 constitution be amended to accommodate interested party (such as this) in criminal Appeals as it is obtained in civil Appeals. This is so because by virtue of section 243(1) (a) and 233 (5) of the Constitution it only recognised the accused person, the prosecuting Authorities and the Attorney General of the state or Federation who may appeal in criminal case. see the case of PAX EDUCATION RESOURCES LTD v. F.R.N & ORS(2020) LPELR-51181(CA)


 In sum, it was Lord Denning who said that “If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on, and that will be bad for both.”  while the novel question of whether an application for substitution of parties has been resolved by the decision in ABDULLAHI’s case, this writer believes that ABDULLAHI’s case has expounded the right of appeal by recognizing the legal representative or relative of the deceased accused to appeal against a court order that affect the deceased estate.

Folorunsho Faozy Aduagba writes from Faculty of Law,  Usmanu Danfodiyo University, Sokoto. He can be reached via 08106500985 or


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