JAJI v. KWARA STATE TOWN PLANNING AUTHORITY & ANOR (2022)

JAJI v. KWARA STATE TOWN PLANNING AUTHORITY & ANOR

(2022)LCN/16930(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Monday, July 18, 2022

CA/IL/69/2021(R)

Before Our Lordships:

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Isaiah Olufemi Akeju Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

ALHAJI LANRE JAJIAPPELANT(S)

And

1. KWARA STATE TOWN PLANNING AUTHORITY 2. MR. INNOCENT AKWNERESPONDENT(S)

RATIO

CATEGORY OF PERSONS THAT CAN SUE AND BE SUED IN COURT

I am aware of the legal position as stated in the cases of Reptico S.A. Geneva v Afribank Nig. Plc (2013) 14 NWLR (Pt. 1373) 172 @ 176 S.C. where it was held that “the law recognizes two categories of persons who can sue and be sued in Court. They are natural persons, with life, mind, brain and physical body, and other artificial persons or institutions having juristic personality.” A-G., Federation v A.N.P.P. (2003) 18 NWLR (Pt. 851) 182 (p.207, paras. B-C). Also the case of Maersk Line v. Addide Invest. Ltd. (2002) 11 NWLR (Pt. 778) 317 AT 322 held that; – “A person who is made a party to an action either as a plaintiff or as a defendant must be a legal person or, if not, a body vested by law with the power to sue or be sued. Thus, if it is successfully shown that a party to an action is not a legal person, that party, should be struck out of the suit, and if such a party was expressed to be the plaintiff, the action should be struck out.” See generally, Agbonmagbe Bank Ltd v General. Manager G.B. Ollivant Ltd (1961) 1 ALL NLR 116. See also Bodunde V. S.C.I. & C.S. Ltd. (2013) 12 NWLR (Pt. 1367) 197 AT 202-204 CA. PER AMADI, J.C.A.

THE DEFINITION OF THE TERM “MISNOMER”

However, I will add for emphasis that where there is a mistake as in name it is described as a misnomer. The Court per Ogunwumiju JCA (as she then was) held in REGISTERED TRUSTEES OF MASTERS VESSEL MINISTRIES (NIG) INCORPORATED VS EMENIKE (2017) LPELR
“Where there is a mistake with regard to the name of a litigant in an action, such a mistake is described as a misnomer. It simply means a wrong description or use of a wrong name. It is a mistake as to the name and not a mistake as to the identity of the particular party to the litigation. While the former can be corrected by an application made to amend the writ in order to substitute the mistaken name for the correct one, the latter cannot be corrected. See EMESPO J. CONTINENTAL LTD VS. CORONA & CO. (2006) 11 NWLR Pt. 991 Pg. 365.”
See also ODE VS THE REGISTERED TRUSTEES OF THE DIOCESE OF IBADAN (1966) LPELR 25279, MTN (NIG) COMMUNICATIONS LTD VS ALUKO (2013) LPELR 20473. PER AMADI, J.C.A.

KENNETH IKECHUKWU AMADI, J.C.A. (Delivering the Leading Judgment): The appeal in this case is against the judgment of the Kwara State High Court Ilorin Division delivered on 5/11/2020 in Suit No: KWS/163M/2019 by Hon. Justice M. O. Adegbite.

The record of appeal was transmitted on 29/7/2021 and deemed properly filed on 1/12/2021. Appellant’s brief of Argument was filed on 2/12/2021. The 1st Respondent’s Brief of Argument was filed on 1/2/2022 and deemed properly filed on 1/3/2022. The second Respondent’s brief of Argument was filed on 20/1/2022 and deemed properly filed and served on 1/3/2022. Counsel for the Appellant filed a Reply on point of law on 11/3/2022.

On 1/2/2022 counsel for the 1st Respondent filed a Notice of 1st Respondent’s intention to rely upon preliminary objection pursuant to Order (10) Rule 1 of the Court of Appeal Rules 2021, on the following grounds:
i. The parties stated in the Notice of Appeal at page 136 of the Record of Appeal are not the parties in suit No: KWS/163M/2019 which is the subject of this Appeal.
ii. The 1st Respondent as stated in the said Notice of Appeal is neither a juristic person nor a party in suit No; KWS/163M/2019.
iii. The judgment in suit No; KWS/163M/2019 was against Kwara State Physical Planning Authority and another as contained in pages 131- 135 of the Record of Appeal and not the 1st Respondent stated in the Notice of Appeal contained at page 136 of the Record of Appeal and the Record of Appeal itself.
iv. An appeal is a continuation of the case determined by the trial Court.
v. The Notice of Appeal at page 136 of the Record of Appeal does not represent a continuation of the case determined against the parties before the trial Court in suit No; KWS/163M/2019.
vi This appeal is ripe for hearing as issues have been joined and Briefs of Argument have been filed by all parties.
Vii The Notice of Appeal which is the initiating process of this Appeal is invalid, incompetent and constitute an incurable fundamental procedural defect.
viii An appeal founded and argued on the basis of an invalid Notice of Appeal is liable to be dismissed.
ix The extant Appeal is incompetent ab-initio, invalid, null, void and it is liable to be dismissed.
X The question of a proper Notice of Appeal, touches on the jurisdiction of this Court to treat this Appeal.

In reaction to the foregoing, counsel to the Appellant on 2/3/2022 filed a motion on notice praying for the following orders:-
1 AN ORDER OF THIS HONOURABLE COURT amending or substituting the name of the first respondent as Kwara State Town Planning Authority on both the Notice of Appeal and the Record of Appeal with Kwara State Physical Planning Authority.
ALTERNATIVE PRAYER;
2. AN ORDER OF THIS HONOURABLE COURT striking out the name of the first respondent as Kwara State Town Planning Authority and joining Kwara State physical- Planning Authority.
3. AN ORDER OF THIS HONOURABLE COURT deeming all processes already filed and served as properly filed and served.
4. AND FOR FURTHER ORDER(S) as the Honorable Court may deem fit to make in the circumstance of this case.

The ground upon which the application is brought is that the name of the first respondent was wrongly referred to as Kwara State Town Planning Authority on both the Notice of Appeal and the Record of Appeal instead of Kwara State Physical Planning Authority.

The motion is supported by an affidavit of 3 paragraphs and a written address in support of thereof. In his written address counsel raised one issue for determination thus:-
Whether or not the application is meritorious.

In his argument counsel submitted thus:-
“This Court is empowered to grant this application by virtue of Order 15 of the Court of Appeal Rules 2021”.
Counsel urged the Court to grant this application.

RESOLUTION
I am aware of the legal position as stated in the cases of Reptico S.A. Geneva v Afribank Nig. Plc (2013) 14 NWLR (Pt. 1373) 172 AT 176 S.C. where it was held that “the law recognizes two categories of persons who can sue and be sued in Court. They are natural persons, with life, mind, brain and physical body, and other artificial persons or institutions having juristic personality.” A-G., Federation v A.N.P.P. (2003) 18 NWLR (Pt. 851) 182 (p.207, paras. B-C). Also the case of Maersk Line v. Addide Invest. Ltd. (2002) 11 NWLR (Pt. 778) 317 AT 322 held that; – “A person who is made a party to an action either as a plaintiff or as a defendant must be a legal person or, if not, a body vested by law with the power to sue or be sued. Thus, if it is successfully shown that a party to an action is not a legal person, that party, should be struck out of the suit, and if such a party was expressed to be the plaintiff, the action should be struck out.” See generally, Agbonmagbe Bank Ltd v General. Manager G.B. Ollivant Ltd (1961) 1 ALL NLR 116. See also Bodunde V. S.C.I. & C.S. Ltd. (2013) 12 NWLR (Pt. 1367) 197 AT 202-204 CA.

In any case, a distinction has to be made between suing in a wrong name which is a misnomer that is a misdescription or wrong use of name, which in summary is a mistake as to the name and not a mistake as to the identity of the particular party sued, in which case; an amendment is permitted to correct the mistake. See A. B. Manu & Co. Nig. Ltd. v Costain (W.A) Ltd. (1994) 7 NWLR (Pt. 367) 112 and Njemanze v. Shell B.P. Port-HarCourt (1966) 1 ALL NLR 8 at 10-11.

On the other hand, a non-juristic person cannot sue or be sued. See Emecheta v. Ogueri (1996) 5 NWLR (Pt. 447) 227at 240.

In this case, the 1st defendant as sued at the lower Court is Kwara State Physical Planning Authority. There is no doubt to the fact that the 1st Respondent in this appeal Kwara State Town Planning is different from the defendant at the lower Court that is Kwara State Physical Planning Authority. Kwara State Town Planning is equally not a juristic personality. The law is settled that one cannot amend a non- juristic person named in a suit by substituting it with a juristic person. The remedy is always to strike out the name of the non-juristic person. The first prayer is consequently refused.

In respect of the alternative prayer, the 2nd Respondent Mr. Innocent Akwame is a natural juristic person, therefore the suit is very much alive, it will serve the interest of justice to join Kwara State Physical Planning Authority to this case, so that all issues arising from the decision of the lower Court can appropriately be taken care of completely.

Consequently, the 1st Respondent herein that is Kwara State Town planning is hereby struck out. In its place; Kwara State Physical Planning Authority is hereby joined as the first Respondent. The Appellant shall file fresh processes including the record of Appeal within 14 (fourteen) days, hence, to reflect the proper parties. The Respondents shall thereafter file fresh processes within the expiration of 14 days. Ruling is entered accordingly.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the ruling just delivered by my learned brother KENNETH IKECHUKWU AMADI, Ph.D. JCA. I am in total agreement with his reasoning and final conclusions.