Section 8(1) of the Civil Law Act: cause of action survives even if the potential plaintiff dies, except in 4 situations which are defamation, seduction, inducing on’s spouse to leave another, adultery.
This is because these are considered personal actions. when the B is dead, no “reputation” so to speak. In other words, when a person dies, the cause of action does not come to an end. The cause of action survived even though the potential P has died, except in the four (4) situations as provided in the proviso of s.8(1) of the CLA. In normal situations, the estate of the deceased will take over the action on behalf of the deceased.
What Happens To A Suit If The Defendant Passes Away?
Order 15 rule 7 Rules of Court 2012 provides that when a party to the suit dies but the cause of action survives, the action does not come to an end. Rule 2 adds that the deceased’s executor/representative may even be made a party if the Court deems it necessary.
Section 8(3) of Civil Law Act(CLA): The proceedings of a cause of action in tort will only be maintainable if proceedings against the defendant/deceased were pending at the date of his death; or are taken not later than six months after his personal representative took out representation.
This is also in line with section 8(1)CLA , the cause of action still subsists even though the deceased has passed away unless that action falls within the exception mentioned in section 8(1).
CAN YOU SUE FROM BEYOND THE GRAVE?
The deceased can’t sue from beyond the grave, but his estate can. How does this work? His executor may appoint a representative to sue on behalf of the deceased, and the damages recoverable will be for the benefit of the deceased’s estate.
What are the damages recoverable for the benefit of the estate of that person?
1. Doesnt include exemplary damages, damages for bereavement, expectation of life and any damages for loss of earnings after the person’s death;
2. Damages to the estate of deceased flowing from the breach of promise to marry
3. Where death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included.
Can The Dearly Departed Be Sued?
Situation: Adam owes Haikal money. However, Adam passed away before Haikal could claim the debt from Adam. Can Haikal still sue Adam and/or claim for the debt?
Section 8(1) of Civil Law Act: All causes of action subsisting against or vest in the deceased shall survive.
Exception (Proviso to section 8(1)) : unless in the case of defamation or seduction or for inducing one spouse to leave or remain apart from the other or to any claim for damages on the ground of adultery.
Provided in section 8(1), the cause of action still subsists even though the deceased has passed away unless that action falls within the exception mentioned in section 8(1).
SUING THE DEAD: HOW DOES IT WORK?
A deceased person’s estate can be sued through their Personal Representative, who may be either an executor or an administrator, depending on whether the person died with or without a will.
If B passed away with a will, A must identify and name the executor of B’s estate as the defendant. However, legal action cannot be taken against the executor unless they have obtained a grant of probate from the court.
If B died without a will, then A must sue the administrator of B’s estate. But this is only possible after the administrator has obtained a grant of letters of administration, since an administrator does not have the legal standing to sue or be sued until the grant is issued.
In Death, Time Matters — Why You Must Act Fast in Civil Claims
Order 15 rule 9 Rules of Court provide that if after the death of a plaintiff or defendant in any action the cause of action survives, but no order under rule 7 is made substituting the plaintiff by someone in whom the cause of action vests, or the personal representatives of the deceased defendant, the representatives may apply to the Court for an order that unless the action is proceeded within a certain time frame specified, the action shall be struck out against the deceased party.
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