NIKI TOBI, J.S.C. (Delivering the Leading Judgment): Leo Attah Ekpo was the original defendant in this case. Following his death, Ekanem Ekpo Otu was substituted to take his place. That was on 16th September, 1997 in the Court of Appeal. A dead man is not in a position to handle or follow litigation. He lacks the capacity to be a party in a litigation.
The matter, which was commenced in the High Court of Lagos State, was for the recovery of the sum of N99,653.85, being amount of overdraft facilities (including interest) owned by Leo Attah Ekpo. Following the substituted service, the learned trial Judge gave judgment to the plaintiff/respondent in default of appearance of the defendant in the sum of N93,676.50. That was on 10th October, 1988. On 19th January 1990, the plaintiff/respondent applied and obtained from the court an order "to attach and sell the immovable property of the defendant/respondent/debtor within the jurisdiction of the Honourable Court". Alhaji Kabiru Rufai was the…