ATAGUBA & COMPANY v. GURA NIGERIA LIMITED.(2000)

ATAGUBA & COMPANY v. GURA NIGERIA LIMITED.

(2000)LCN/0788(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 9th day of May, 2000

CA/K/242/98

JUSTICES

MAHMUD MOHAMMED Justice of The Court of Appeal of Nigeria

VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria

OLUDADE OLADAPO OBADINA Justice of The Court of Appeal of Nigeria

Between

ATAGUBA & COMPANY Appellant(s)

AND

GURA NIGERIA LIMITED Respondent(s)

RATIO

WHETHER O RNOT ONLY LEGAL PERSONS CAN COMMENCE AN ACTION IN COURT

There is no doubt at all that a person who should commence an action in court or against whom an action is commenced in court must be a person known to the law, namely, a legal person. Therefore if it is successfully shown that a party to an action is not a legal person, the party should be struck out of the suit. FAWEHINMI V N.B.A. (NO.2) (1989) 2 NWLR (PT.105) 558 AT 640 – 641. In the present appeal, has it really been successfully shown that the appellant which was sued as a defendant in the court below in the name of ATAGUBA & COMPANY is not a legal person capable of being sued in that name? The capacity in which the appellant was sued in the undefended suit filed by the respondent at the court below is clearly stated in paragraph 3(b) of the affidavit in support of the respondent’s claim and paragraph 1 of the appellant’s affidavit in support of the notice of intention to defend the action. The averment in paragraph 3(b) of the affidavit in support reads:-
“3(b) The defendant is a firm of legal practitioners situate along Ali Akilu Road Kaduna.”
while paragraph 1 of the affidavit in support of notice of intention to defend states:-
“1. That I am Principal Partner in the firm of ATAGUBA and Company, Legal Practitioners of 27 Ali Akilu Road, Kaduna and that by my position aforesaid I know the facts of this suit well.” PER MOHAMMED, J.C.A.

MAHMUD MOHAMMED, J.C.A. (Delivering the Leading Judgment):This is an appeal against the judgment of Kurada J of the Kaduna State High Court of Justice delivered on 20/7/98 in an action filed by the respondent which was the plaintiff against the appellant which was the defendant. The plaintiff claim which was filed under the undefended list procedure of the Kaduna High Court outlined by Order 22 Rules 1 to 5 of the Kaduna State High Court (Civil Procedure) Rules 1988 against the defendant is for the sum of seven hundred and fifty thousand Naira (N750,000.00) with 21% interest from 11/5/95 and thereafter at 10% interest on the judgment sum until the judgment is liquidated.

On being served with the marked writ of summons accompanied by the affidavit in support of the plaintiff’s claim, and in accordance with the requirements of the rules, the defendant duly filed its own Notice of Intention to defend the action duly accompanied by the affidavit in support of the Notice. After hearing learned counsel on both sides on whether or not the affidavit of the defendant in support of its Notice of Intention to defend had disclosed a defence to the action on the merit, the learned trial Judge after scrutinizing the evidence in the paragraphs of the affidavit in support of the plaintiff’s claim against the averments contained in the defendant’s affidavit in support of its Notice of Intention to defend, came to the conclusion that no defence to the action on the merit had been disclosed in the defendant’s affidavit and accordingly entered judgment for the plaintiff as follows at pages 34 – 35 of the record:-
“For the foregoing, I am of the view that the defendant has not, by (sic) his affidavit disclosed a defence on the merit to this action to warrant its transfer to the general Cause list. I therefore refuse to transfer the case to the general cause list and the suit shall be heard as undefended and I shall accordingly enter judgment for the plaintiff without calling upon (sic) him to formally prove his case through witnesses. I hereby enter judgment for the plaintiff against the defendant in the sum of seven hundred and fifty thousand Naira (N750,000.00) only being a refund of money paid for a DAF Truck with Registration No. KD 144 SR.

There is no averment in the plaintiff’s affidavit in support of the writ of summons that interest was intended to be paid on the amount and the transaction, in my view, is not one that normally or by its nature, interest is (sic) expect or paid. The claim for interest therefore has no basis. It is accordingly refused and is hereby dismissed.”

Not satisfied with this judgment, the defendant now appellant has appealed to this Court against it upon 3 grounds of appeal contained in the Notice of appeal dated 28/7/98. In the appellant’s brief of argument deemed filed and served upon extension of time granted by this Court on 22/6/99, two issues for the determination of the appeal were formulated from the 3 grounds of appeal. The issues are:
“1. Whether the entire proceedings before Hon. Kurada J. were not rendered a nullity by the fact that the purported defendant was not a juristic or legal person?
2. Whether the appellant’s notice of intention to defend and affidavit in support disclosed sufficient facts and materials constituting a defence on the merits such that the learned trial Judge upon due consideration ought to have transferred the matter to the general cause list or at the worst joined Messrs Inland Bank Plc Nig who are the appellant’s disclosed principals and whether in the circumstances of this case, the trial court could have properly entered judgment for the respondent,”

In the brief of argument filed by the respondent on 30/7/99 on the other hand, the following two issues were identified for the determination of the appeal.
“1. Whether the defendant (an unincorporated body using business name) as non-juristic person is capable of being sued in its name as in this case.
2. Whether the appellant’s notice of intention to defend dated 6th day of June, 1999 and the supporting affidavit disclosed a defence on the merit to warrant the suit being transferred to general cause list.”

The above issues as contained in the respective briefs of argument of the appellant and the respondent though differently worded are in my opinion, virtually the same. I shall therefore proceed to resolve the two issues in the appellant’s brief of argument in the determination of this appeal.

The first is whether the appellant not being a juristic or legal person could have been sued as a defendant at the lower court. This issue according to the appellant had raised fundamental question of legal personality and by necessary implication, the jurisdiction of the lower court. It was argued that the appellant being a firm of legal practitioners as disclosed in the affidavit in support of its notice of intention to defend, is not a juristic person and therefore lacked the legal personality to defend the action at the lower court. That in the absence of a defendant with the necessary required legal personality to defend the action, the lower court had no jurisdiction to entertain the respondent’s case and for the same reason the entire proceeding, before the lower court was a nullity. Several cases cited and relied upon by the appellant in the appellant’s brief include FAWEHINMI V N.B.A (NO.2) (1989) 2 NWLR (PT.105) 550 and MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR (PT4); 855. Although the appellant had conceded in its brief that this issue on jurisdiction was not raised and argued at the lower court, there being sufficient facts ex facie on the record establishing want of jurisdiction,’ on the authority of OLOBA V AKEREJA (1988) 3 NWLR (PT.84) 508 AT 520, the learned trial Judge ought to have raised the issue suo motu. Learned counsel to the appellant therefore urged this Court to allow the appeal on this issue and strike out the respondent’s suit.

For the respondent however it was argued that the appellant being a firm of legal practitioners, a non-juristic person is capable of being sued in its business name having regard to the decision of this Court in the case of FABIO INDUSTRIES LTD V UNITED DISTILLERS PLC and PETER BIDOKWU & CO (1999) 5 NWLR (PT.602) 314. That for the same reason and on the authority of the same case the lower court had jurisdiction to entertain the respondent’s suit.

What had been established by these two paragraphs of the respective affidavits of the parties to the suit at the court below is that “Ataguba and Company” which was sued as the defendant in the suit is a Firm of Legal Practitioners with E.E. Ataguba as a Principal Partner. Therefore ‘Ataguba and Company’ being a Firm of Legal Practitioners either being operated by E.E. Ataguba alone in that name or being operated as a partnership firm in that name with two or more legal practitioners having Ataguba as the Principal Partner, that Firm of Legal Practitioners may be sued in the name of the Firm. This is so by virtue of the provisions of the Law under Order 11 Rules 9 and 26 of the Kaduna State High Court (Civil Procedure) Rules 1987. Rule 9 of Order 11 reads:-
“9. Any two or more persons claiming or alleging to be liable as partners may sue or be sued in the name of the Firm in which they were partners when the cause of action arose: and any party to an action may in such case apply to the court for a statement of the names and addresses of the persons who were, when the cause of action arose, partners in any such Firm, to be furnished in such manner, and verified on oath or otherwise, as the court may direct.”
Rule 26 of Order 11 of the Rules on the other hand, provides:-
“26. Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in such name or style as if it were a firm name: and so far as the nature of the case will permit, all provisions relating to proceedings against firms shall apply.”
In other words if the firm of Legal Practitioners of Ataguba and Company has two or more legal practitioners operating the firm in partnership, that firm has the capacity to sue and be sued in the name of Ataguba and Company. However if the firm is being operated by Ataguba alone in that name and style other than his own name, although the firm may not have the capacity to sue in that name, the firm can all the same be sued in that name.

For the foregoing reasons, the suit of the respondent against the appellant in the name of Ataguba and Company as the defendant is quite competent and has no feature whatsoever depriving the lower court of jurisdiction to hear and determine the claim. See CARLEN (NIG) LTD V UNIVERSITY OF JOS (1994) 1 NWLR (PT.323) 631 AT 656 where Ogundare JSC explained this state of the law:-
“There are bodies generally regarded as quasi or near corporations on whom statutes expressly or impliedly confer a right to sue or be sued though unincorporated. They are no legal personae strictu sensu but have a right to sue or be sued by a particular name. Examples of these are partnerships, trade unions, friendly societies and foreign institutions authorized by their own law to sue and be sued, though not incorporated.”
See also THOMAS V LOCAL GOVERNMENT SERVICE BOARD (1965) 1 NMLR 310. The PROVOST ALVAN IKOKU COLLEGE OF EDUCATION V AMUNEKE (1991) 9 NWLR (PT.213) 49 and the English case of WILLIS & ANOR V ASSOCIATION OF UNIVERSITIES OF THE BRITISH COMMONWEALTH (1964) 2 ALL E.R. 39 AT 42. In the instant case therefore, the appellant, an incorporated body operating under the name of Ataguba and Company is capable of being sued in that name.

Next for determination is whether the appellant’s affidavit in support of its notice of intention to defend the action really disclosed a defence on the merit justifying the transfer of the matter to the general cause list for hearing. It was argued for the appellant that the affidavit in support of notice of intention to defend having disclosed that the appellant was the agent of Inland Bank in the transaction, that the DAF Truck is still lying at the premises of the Kaduna High Court awaiting the outcome of an action to determine its ownership which action had been adjourned sine die and that the appellant’s action against Inland Bank to recover the sum of N750,000.00 paid into its account by the appellant is still pending at the Kaduna High Court, defence on the merit had been disclosed in the affidavit to warrant transferring the suit of the respondent to the general cause list for hearing. The cases of TIWELL NIGERIA LTD V INLAND BANK NIGERIA LTD (1997) 3 NWLR (PT.494) 408 AT 419 and OKEKE V NICON HOTELS LTD (1999) 1 NWLR (PT.586) 216 AT 224 were cited in support of the appellant’s submission.

As for the respondent it was contended that having regard to the affidavit in support of the respondent’s claim, the appellant’s affidavit in support of the notice of intention to defend did not disclose any defence on the merit to the action to justify granting the appellant which was the defendant leave to defend the action particularly when decisions in the cases of JESCO (NIG) LTD V NASCO RICE & CEREAL PROCESSING CO. LTD (1998)11 NWLR (PT.575) 227 and TIWELL NIGERIA LTD V INLAND BANK (NIGERIA) PLC (1997) 3 NWLR (PT.494) 408 AT 419 are taken into consideration.

The resolution of this issue centred squarely on the application of the provisions of rules 3 and 4 of Order 22 of the Kaduna State High Court (Civil Procedure) Rules 1987 which provide as follows:-
“3(1) If the party served with the writ of summons and affidavit as provided in Rules 1 and 2 hereof delivers to the Registrar not less than 5 days before the date fixed for hearing a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.
(2) Where leave to defend is given under this rule, the action shall be removed from the undefended list and placed on the ordinary Cause List; and the court may order pleadings or proceed to hearing without further pleadings.

4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.”

It is quite clear from the procedure outlined in the above rules 3 and 4 of Order 22 of the Kaduna State High Court (Civil Procedure) Rules 1987 that the procedure was not designed to exclude a defendant who can show in his affidavit in support of his notice of intention to defend the action that he has a defence on the merit. However, leave to defend the action filed under the undefended list may only be granted where the defendant’s affidavit raises substantial question of fact or law which ought to be tried, or where he alleges misrepresentation by the plaintiff or where the facts alleged by the plaintiff are of such a nature as to entitle the defendant to interrogate the plaintiff or cross-examine the plaintiff’s witnesses on the accompanying affidavit as was outlined in UNIVERSITY OF NIGERIA V ORAZULIKE TRADING CO. (1989) 5 NWLR (PT.119) 19. Also under this procedure, for a defendant to be entitled to be granted leave to defend, his affidavit in support of his notice of intention to defend must not contain merely general statement that he has a good defence to the action. Such a general statement must be backed or supported by particulars which if proved would constitute a defence to the action. That is to say, the defendant in this respect must as far as possible deal specifically with the plaintiff’s claim and state clearly what the defence is and what facts and documents he relied on. See JOHN HOLT & CO (LIVERPOOL) LTD V FAJEMIROKUN (1961) ALL NLR 492.

In other words the defendant’s affidavit must condescend upon particulars and should as far as possible deal specifically with the plaintiff’s claim and the affidavit in support thereof and state clearly and concisely what the defence is and what facts are relied upon to support it. The same affidavit in defence should also state whether the defence relates to the whole or part of the claim, and in the latter case it should specify that part of the claim.

A mere general statement or denial that the defendant is not indebted to the plaintiff is not enough to constitute such defence unless the grounds on which the defendant relies as showing that he is not indebted are stated in the affidavit. See TIWELL (NIG.) LTD V INLAND BANK NIG. LTD. (1997) 3 NWLR (PT.494) 408.
It is also the requirement of the law under the undefended list procedure that a defendant who has no real defence to the claim of the plaintiff against him should not be allowed to dribble and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by the delay tactics aimed, not at offering any real defence to the action but at gaining time within which he may continue to postpone meeting his obligation and indebtedness. MACAULAY V NAL MERCHANT BANK LTD (1990) 4 NWLR (PT.114) 283.

It is not the duty of the trial court while considering action under the undefended list procedure to determine at the stage of considering the defendant’s defence in his affidavit whether the defence will ultimately succeed. In other words, in determining whether the defendant has a good defence on the merit or whether he has disclosed such facts as may be deemed sufficient to allow him to defend the suit, it is not necessary for the trial court to consider whether or not the defence has been proved. What is required at that stage is simply to look at the facts deposed in the affidavit and see if they can prima facie afford a defence to the action. A complete defence need not be shown at that stage. It is sufficient if the defence set up shows that there is a triable issue or that for other reasons there ought to be a trial. See NISHZAWA LTD V JETHWANI (1984) 1 SC 234 and F.M.G. V. SANI (1990) 4 NWLR (PT.147) 688.

In the present case, the gist of the case of the plaintiff against the defendant as contained in the affidavit in support of the claim is that on 11/5/95 the plaintiff paid the sum of N750,000.00 to the defendant for the purchase of a DAF Truck No. KD 144 SR. The defendant issued a receipt dated 11/5/95 in its name acknowledging the receipt of the sum of N750,000.00 being payment for the DAF Truck. Two weeks after the delivery of DAF Truck to the plaintiff, the same was seized and returned to the High Court on the orders of the Chief Judge. When after 3 years the defendant could not refund to the plaintiff the sum of N750,000.00 paid for the DAF Truck, the plaintiff instituted this action at the court below to recover the amount.

In the affidavit in support of the defendant’s notice of intention to defend the action however, the defendant had averred that he was not indebted to the plaintiff in the sum of N750,000.00 or in any sum whatsoever. That the DAF Truck was sold to the plaintiff by the bailiff of the Kaduna State High Court and same was delivered to the plaintiff on 11/5/95. That the defendant as solicitors to Inland Bank Nigeria Plc only collected the proceeds of the sale and paid it to Inland Bank Nigeria Plc. That upon an interpleader summons, the sale of the DAF Truck was set aside by the High Court and that the same truck is still lying at the premises of the court. When the defendant’s request to the Inland Bank Nigeria Plc to return the proceeds of the sale for onward return to the plaintiff was refused, the defendant has instituted an action at the Kaduna State High Court for the refund of the amount and that the action has since been pending in that court.

The learned trial Judge in his judgment at page 34 of the record of appeal very carefully considered all the defences raised by the defendant in its affidavit against the facts deposed in support of the plaintiff’s claim and quite rightly, in my view came to the conclusion that the facts do not constitute a defence on the merit to the plaintiff’s claim for the refund of the sum of N750.000.00. I entirely agree with the learned trial Judge. This is because on the face of the receipt issued by the defendant now appellant to acknowledge receiving the sum of N750.000.00 from the plaintiff now respondent being payment for the DAF Truck Number KD 144 SR, there is nothing to show that Inland Bank Nigeria Plc was involved in the sale of the truck or that it was sold by the bailiff of the Kaduna State High Court as claimed by the appellant. The facts averred in the appellant’s affidavit in Support of its notice of intention to defend do not at all controvert the facts in support of the respondent’s claim that the sale transaction for the purchase of the DAF Truck in question was clearly between the appellant and the respondent. Since for the reasons stated by the appellant itself that the DAF Truck which was delivered to the respondent on 11/5/95 after the sale transaction was later recovered and returned to the premises of the Kaduna High Court on the orders of the State Chief Judge where it is still lying pending the outcome of an action to determine its ownership, the respondent is indeed entitled to the refund of its money paid directly to the appellant from the appellant which received the amount and not from any other person not connected with the sale.

There is no merit at all in this appeal which is hereby dismissed. The judgment of the lower court of 20/7/98 is hereby affirmed.

There shall be N3.000.00 costs to the respondent.

VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.: In the court below, the plaintiff Messers Gura Nigeria Limited, who are respondents in this appeal claimed from the defendant now appellant the sum of N750.000.00 with interest at the rate of 21%, until the date of judgment, and at 10% interest thereafter until the judgment sum is liquidated. The claim before the lower court was by undefended list procedure.

Undefended list procedure is provided for in Order 22 of the High Court Civil Procedure Rules Cap 68 Laws of Kaduna State. Under the procedure, whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and if the application is supported by an affidavit stating that in the deponents belief there is no defence to the plaintiff claim, the court shall if satisfied that there are good grounds for believing that there is no defence to the claim enter the suit for hearing in what shall be called the undefended list. In the affidavit in support of the motion to place the plaintiffs claim against the defendant in the undefended list, the plaintiff averred that the plaintiff paid the sum of N750,000 for the purchase for the plaintiff a DAF truck registered as KD 144 SR. The defendant named Ataguba and Co., acknowledged receipt of the said sum on 11th May 1995. After some delay, and upon payment of a further unreceipted sum of eighty thousand Naira, the plaintiff recovered the said DAF truck.

For reasons which is not explained in the affidavit, the defendant deposed that the said lorry was confiscated by the order of the Chief Judge Kaduna State. Plaintiff deposed further that the defendant failed, refused or neglected to refund the said sum of N750,000 and did not deliver the DAF truck to the plaintiff despite demands by the plaintiff.
In compliance with the rules of procedure under the undefended list the defendant filed a notice of intention to defend. In the affidavit the defendant averred that he had a defence to the claim of the Plaintiff. On the 7th July 1998, the court considered the affidavit of the defendant and ruled at page 34 of the printed record that “the affidavit of the defendant does not disclose a defence on the merit” and proceeded to award judgment on the claim, without interest thereon in favour of the plaintiff. It is against this judgment that the defendant on 29th July 1998, filed three grounds of appeal, from which two issues are formulated for determination. The two issues formulated by the appellant for determination are as follows:-
“1. Whether the entire proceedings before Hon. Kurada J were not rendered a nullity by the fact that the purported defendant was not a juristic or legal person.
2. Whether the appellant’s notice of intention to defend and affidavit in support disclosed sufficient facts and materials constituting a defence on the merits such that the learned trial judge upon due consideration ought to have transferred the matter to the general cause list or at the worst joined Messers Inland Bank Nig. PLC who are the appellants disclosed principals, and whether on the circumstance of this case,the trial court could have properly entered a judgment for the respondent?”

It is at this stage and before considering the argument in support of the appellant’s issues, desirable to state the issues formulated by the Respondent perchance the two sets of issues may be conveniently considered together. Respondent’s issues are two, they are:-
“(1) Whether the defendant (an unincorporated body using business name) as non juristic person is capable of being sued in its name as in this case.
(2) Whether the appellants notice of intention to defend dated 6th day of June 1999 and the supporting affidavit disclosed a defence on the merit to warrant the suit being transferred to general cause list.”

It is clear from the above issues of the respondents that it is a variation of the appellant’s issues for determination, and the two sets of issues may conveniently be considered together.

The first issue formulated for determination by the Appellant is on the propriety of the court below of adjudicating on a person or body who is not juristic. This also is the issue formulated by the Respondent who considered it proper for the court below to adjudicate on non juristic person if in the case before the court; the defendant is capable of being so sued because it used a business name.

The appellant in his brief of argument averred that Ataguba and company is not a juristic body and so it cannot sue and be sued. Because of its non corporeal body the court has no jurisdiction on it. The appellant averred that the defendant named as above is a firm of legal practitioner. The person separated from the firm of legal practitioner before the court has no juristic existence and so cannot sue or be sued. The name should have been struck out by the court, it was argued, and there should have been no defendant in court in the suit before the court.

In adjudicating on the case before the court, the appellant argued that the court had failed to observe that a proper defendant was not before the court and that it had no jurisdiction to preside on the suit. In the Respondents brief of argument the submission is made that an unincorporated body carrying on business enterprise may now be sued or it may sue, provided the action is commenced within its jurisdiction, the court may properly adjudicate on it.

It is for this reason that the Respondent submitted that the defendant before the court being a firm of legal practitioners, and being non juristic, Ataguba and Company may be sued in its business name. It is settled law and practice that a suit can be commenced, and proceeded against those who are competent to so. See Ajao v. Somola and Another (1973) 5 SC 119. Generally a competent person is a person with a juristic existence. This may be a living person or a corporate body. This may be a company limited by shares or a public liability company Plc. In Agbonmagbe Bank v. General Manager G.B. Ollivant Ltd and Anr. (1961) All NLR 116 (1961) LLR 33, it was held that since General Manager G.B. Ollivant Ltd was not a juristic person, that defendant could not be made party to the action and should be struck out. However there are exceptions to the general rule. Since the enactment of the Civil Procedure rules of each State in Nigeria, Kaduna State like other States in the country has made provisions in its rules for the possibility of citing as defendants an unincorporated body. The procedure is contained in Order II on parties, rule 26 of the High Court Civil Procedure Rules Cap 68. Laws of Kaduna State it provides as follows:-
“Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in such name or style as if it were a firm name, and so far as the nature of the case will permit, all provisions relating to proceedings against firms shall apply.”
It is indisputable that Ataguba and Company is a firm of legal practitioners it is non juristic. By the provisions of the rule 26 Order 11 of the Civil Procedure Rules Kaduna State, such a non -juristic body may sue and may be sued in a court of law. In the face of such ability to be sued, the court has jurisdiction to adjudicate on the said defendant.
In response to issue one posed by the appellant, whether the entire proceedings before Kurada J. in the suit was not rendered a nullity because of the incapacity of being non juristic of the defendant; the answer is as follows, even as the defendant is non juristic, the Kaduna State High Court Civil Procedure Rules, rule 26 order 11 conferred on the said defendant ability to sue and be sued. The Kaduna State High Court is therefore not disabled from adjudicating on the named defendant. Consequently the proceedings before the learned trial judge is not rendered a nullity.

The second issue for determination is whether the appellants notice of intention to defend and affidavit in support disclosed sufficient facts and materials constituting a defence on the merits; etc to warrant the entry of judgment in favour of the respondent. On this issue the appellant submitted that the affidavit of intention to defend filed by the appellant disclosed sufficient facts to warrant the appellant obtaining judgment of the court. It is worthwhile to consider the facts in issue and the defence intended to be offered at the trial, as contained in the affidavit filed by both parties.

The facts succinctly put are these. The appellant did not deny receipt of the sum of N750.000 from the Respondent for the purchase for the Respondent of one DAF truck. Appellant even issued a receipt acknowledging same in exhibit A. Upon a claim in court under undefended list for a refund of the money the appellant promised to offer at the hearing of the claim if placed on the general cause list, a defence, that another person not himself received the said sum of N750,000 and that another party, the bailiffs sold the DAF truck.

At the best of times the above averments of the appellants do not constitute a defence to a claim for a refund of the said sum of N750,000, if the DAF truck is not produced, and the defendant did not produce the money he received.

The provisions of Order 22, rule 3(1) of the High Court Civil Procedure Rules require a defence on merit, before the court may consider granting leave for the appellant to defend in a general cause list.

On a proper interpretation of rule 3(1) of order 22, the discretion is that of the trial court provided it is exercised judiciously to transfer the claim to a general cause list. This is so because the relevant section reads:-
“The court may give him leave to defend upon such terms as the court may think just.”
Of course the discretion will not be refused if the defendant shows a defence on merit.

In the instant case, the defendant has not shown any defence, let alone a defence on merit. I see no reason therefore to disturb the decision of the court below. In this decision I am in full agreement with the decision of my learned brother Mahmud Mohammed, JCA, in the lead judgment. I agree that there is no merit in the appeal, and that it should be dismissed.

The judgment of the court below is affirmed. I abide by the consequential order for costs.

OLUDADE 0LADAPO OBADINA, J.C.A: I have been privileged to read in draft the lead judgment of my learned brother, M. Mohammed, J.C.A. just delivered. I agree entirely with the judgment that the appeal be dismissed.

However, I must by way of emphasis comment on the first issue raised by the appellant for determination. The respondent as plaintiff in the case took out a writ under Undefended List against the appellant as defendant, pursuant to Order 22 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules 1987, as follows:-
“(1) The plaintiff claims against the defendant is for the sum of N750,000 (Seven hundred and fifty thousand naira) only.
(2) Interest on the said sum at the rate of 21% from 11th May, 1995 when the said cheque was paid by the plaintiff till judgment is given.
(3) Thereafter interest at 10% on the judgment sum till the judgment is liquidated. “The respondent gave particulars of the claim and supported the same with affidavit with two (2) exhibits:- See pages 3 to 8 of the record of appeal.

The appellant as defendant filed a Notice of Intention to defend pursuant to Order 22 rules/of the Kaduna State High Court (Civil Procedure) Rules, 1987. He filed an affidavit in support of the Notice of Intention to defend with exhibits.

The appellant on the same date 6th of June, 1998 also filed a Notice of preliminary Objection to the effect that the defendant i.e. the appellant is not a juristic person and therefore a condition precedent to the exercise of jurisdiction by the court has not been fulfilled.

After hearing the counsel on both sides, the learned trial judge entered judgment for the respondent against the appellant on the ground that the appellant as defendant has not by his affidavit disclosed a defence on the merit to the action to warrant transferring the case to the general cause list.

It is against the judgment that the appellant appealed to this Court. The first issue raised by the appellant for determination raises the fundamental question of legal personality of the appellant- Araguba and Company. The issue reads as follows:-
“Whether the entire proceedings before Hon. Kurada. J. were not rendered a nullity by the fact that the purported defendant was not a juristic or legal person.”

In his brief of argument, learned counsel for the appellant referred to paragraph 3 (b) of the respondent’s affidavit in support of the Writ of Summons on the Undefended List and paragraph 1 of the affidavit in support of notice of Intention to defend and submitted that the appellant has been clearly identified as a firm of legal practitioners. He submitted that the only purported defendant before the court, “Ataguba and Company” is not a juristic person and is not known to the law. He referred to Fawehinmi v. NBA (No.2) (1989) 2 NWLR (Part 105) 558 at 640 – 641. She urged the court to strike out the appellant from the suit. The learned counsel for the appellant went further to argue that the entire proceedings before the Lower Court was a nullity as the learned court had no jurisdiction to entertain the claim in that the party against whom the claim was brought is not a legal or juristic person, she referred to Madukolu v. Nkemdilim (1962) 1 All NLR (part 4) 855. She urged the Court to declare the proceedings a nullity and set aside the judgment.

It is not in dispute that the appellant, ‘Ataguba and Company’ is a firm of legal practitioners, a non-juristic person. It is now the law that an unincorporated business enterprise whether of single or multiple ownership within the jurisdiction of the Court can be sued as a defendant in its business name.

By Order 11 rule 26 of the Kaduna State High Court (Civil Procedure) Rules, 1987, any, person carrying on business within the jurisdiction of the Court in a name or style other than his own name may be sued in such name or style as if it were a firm’s name; and so far as the nature of the case will permit, all rules relating to proceedings against firms shall apply.
Order 11 rule 26 of the Kaduna State High Court (Civil Procedure) Rules 1987, provides as follows:-
“Order 11 rule 26:-
Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in such name or style as if it were a firm’s name; and; so far as the nature of the case will permit, all provisions relating to proceedings against firms shall apply.”
Order 11 rule 26 of the Kaduna State High Court (Civil Procedure) Rules, 1987, quoted above is in pari materia with Order 13 Rule 42 of the Lagos State High Court (Civil Procedure) Rule, 1972 which reads as follows:-
“Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in such name or style as if it were a firm’s name; and so far as the nature of the case will permit, all rules relating to proceedings firms shall apply.”
The above provisions deal with how to sue an individual doing business under a business name; while Order 11 Rule 9 of the Kaduna State High Court (Civil Procedure) Rules, deals with how to sue two or more persons doing business as partners under a business name.
In FABNO Industries Ltd v. United Distillers PLC and Peter Bidokwu & Company, (1999) 5 NWLR (Part 602) 314 at 322, the Court of Appeal interpreted Order 13 Rule 42 of the High Court of Lagos State (Civil Procedure) Rules, 1972 to the effect that any person carrying on business within the jurisdiction of the Court in a name or style other than his own name can be sued in such name as if it were a firm’s name.

In the present case on appeal, the respondent as plaintiff stated in paragraph 3(b) of the affidavit in support of the Writ of Summons as:-
“3(b) The defendant is a firm of legal practitioners situate along Ali Akilu Road Kaduna.” This averment was confirmed by the appellant as defendant in paragraph 1 of the affidavit in support of notice of Intention to defend as follows:-
“(1) That I am Principal Partner in the firm of Ataguba and Company, Legal Practitioners of 27,
Ali Akilu Road, Kaduna.”
In the above circumstance I think the case of the appellant falls under the provisions of Order 11 Rule 26 of the Kaduna State High Court (Civil Procedure) Rules, 1987, and the appellant can be sued in his business name – “Ataguba and Company”. Accordingly, it is my view that the proceedings before the learned trial judge were not a nullity.

As regards the second issue raised by the appellant, namely-
“Whether the appellant’s notice of intention to defend and the affidavit in support thereof disclosed sufficient facts and materials constituting a defence on the merits such that the learned trial judge upon due consideration ought to have transferred the matter to the general cause list …” A carefull and honest look at the affidavit in support of the writ of summons with the exhibits attached thereto as well as the affidavit in support of the notice of intention to defend with the exhibits attached thereto. clearly shows that the appellant’s notice of intention to defend and the affidavit in support thereof do not disclose any defence to the respondent’s claim. The case of the respondent is that he bought the truck in dispute from the appellant for (N750,000) Seven hundred and fifty thousand naira and the appellant gave him a receipt Exh. ‘A’. Exh. ‘A’ is on the letter headed paper of the appellant, whereof the appellant acknowledged receipt of (N750,000) Seven hundred and fifty thousand naira as being payment for one DAF Truck Reg. No. KD.144SR.

The appellant did not clearly and specifically deny issuing Exh. ‘A’ or the receipt of the said sum of (N750,000) contained therein; On the contrary, the appellant denied generally in paragraph 2 of his affidavit in support of notice of Intention to defend that the appellant was not indebted to the respondent. The appellant went further to say that the bailiffs of the Court sold the said Truck to the respondent. The assertion was not supported by any evidence. There was no receipt issued by the bailiff to support the claim by the appellant. None of the exhibits attached to the affidavit of the appellant supports his claim that it was the bailiff that sold the Truck to the respondent. In paragraph 4 of the affidavit in support of the notice of Intention to defend, the appellant stated inter-alia that he collected the proceeds of the sale and paid it into his own account with the Kaduna branch of the Inland Bank of Nigeria PLC, and cleverly, the appellant did not say that he issued receipt to the respondent.

On the totality of the affidavit evidence before the trial judge, I think the learned trial judge was perfectly right to say that the appellant’s affidavit did not disclose a defence on the merit. Consequently, I think the appeal lacks merit and should be dismissed. I also therefore dismiss the appeal and abide by all the consequential orders made by my learned brother M. Mohammed, J.C.A.

Appearances

Mrs M.A. Alabi;
Miss Zulai Bello;For Appellant

AND

Mr. S.G. Gadau;For Respondent