MR. SUNDAY EKANEM USUAH V. G.O.C. NIGERIA LTD. & ORS. (2012)

MR. SUNDAY EKANEM USUAH V. G.O.C. NIGERIA LTD. & ORS.

(2012)LCN/5244(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 21st day of March, 2012

CA/C/135/08

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

MR. SUNDAY EKANEM USUAH – Appellant(s)

AND

G.O.C. NIGERIA LTD. & ORS. – Respondent(s)

RATIO

WHETHER OR NOT GROUNDS OF APPEAL MUST ARISE FROM THE DECISION OF THE COURT APPEALED AGAINST

The law is now known that for a ground of appeal to be competent, it has to arise from and be based on the decision appealed against. See OKPAIA v OKAFOR (1991) 7 NWLR (204) 510; IKWEKI V. EBELE (2005) 2 SC (II) 96; NGIGE V. OBI (2006) ALL FWLR (330) 1041. PER GARBA, J.C.A.

PROPER PARTIES WHO CAN SUE AND BE SUED IN AN ACTION

For a suit to be competent for adjudication by a court of law, there must be at least a competent plaintiff and a competent defendant in the sense that both must be juristic persons who can sue or be sued accordingly. In situations where there were a single plaintiff and a single defendant, the lack of competence on the part of any of them, would render the action incompetent thereby robbing a court of the requisite jurisdiction to entertain it. See OKOYE V. N.C. & F. CO. LTD. (1991) 6 NWLR (199) 501; AWOYE V. OBASANJO (2006) FWLR (334) 1967. In FAWEHINMI V. NBA (NO. 2) (1989) 2 NWLR (105) 558, it was held that no action can be brought by or against any party, other than a natural person or persons unless such a party has been given by statute, expressly or impliedly, or by common law either:-

(a) a legal persona under by the name by which it sues or is sued.

(b) a right to sue or be sued by that name.

In actions where there are single parties and any one of them is shown not to be juristic and consequently incompetent to sue or, be sued, the proper parties would be absent in the action and the court would not have jurisdiction to entertain it. EKPERE v AFORIZE (721) 1 ALL NLR 120; OLORIODE V. OYEBI (1984) 1 SCNLR, 390; AMUDA v OJOBO (1995) 7 NWLR (406) 170; PLATEAU STATE v A-G, FEDERATION (2006) 3 NWLR (967) 346 at 423.

However in actions where there are more than one plaintiff and more than a single defendant, the competence of any one of them to sue or be sued, would not simpliciter affect and defeat the competence of the action on ground of want of proper parties. Such situations are called misjoinder of parties which involves joining competent and incompetent or necessary and unnecessary parties in an action.In the very recent case of A-G., RIVERS STATE V. A-G, AKWA IBOM STATE (2011) 3 MJSC 1, at 93, the Supreme Court had restated the principle thus:-“No cause or matter shall be defeated by reason of misjoinder or non-joinder of parties, and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.” Similar, the apex court had earlier in the case of CROSS RIVER STATE NEWSPAPER CORP. V. ONI (1995) 1 NWLR (371) 270 held that:-“It is a settled principle of law that non-joinder or misjoinder of parties will not be fatal to an action and non proceedings shall be rendered null and void for lack of competence or jurisdiction simply because a plaintiff joins a party who ought not to have been joined.”See also OKOYE V. N.C. & F. CO. LTD. (supra) SAPO V. SUNMONU (2010) 3 – 5 SC (II) 130; OSONDU & CO. LTD. V. BONCH (NIG.) LTD. (2002) 3 SC, 42 at 61.

As may be recalled, the case of the Appellant was not that proper parties were not before the High Court but that G.O.C. (NIG.) LTD. which he said was not known to law and so not juristic cannot be amended to read G.O.C. ENTERPRISES (NIG.) LTD., a juristic person.

By the position of the law as stated in the authorities cited above only juristic person or party can sue or be sued in an action in a court of law. G.O.C. (NIG.) LTD., not being a legal person by the name it was sued or granted the right to sue or be sued in the name by which it was sued either by statute or common law, was not a competent party whose name can be amended in the suit. In law, it was not a party in the suit and so had no name which can properly be amended. There is nothing to amend in a non-existent party’s name in a suit and the only viable remedy in law, is an application to strike out the non-juristic name sued by the Respondent from the suit.

A misjoinder or mistake in name occurs only when the name of an existing party or entity is mis-spelt or misstated in a court process. Such a misnomer or mistake can be corrected by way of an amendment on the basis that it relates to the name of a juristic person or entity which was wrongly stated or set out on the process. The name of a non-juristic and therefore non existent entity in law cannot be misspelt, misnamed or wrongly stated or set out and so the issue of an amendment to the name cannot and will not arise. Thus, a party cannot amend or effect a correction in a court process by replacing or substituting a non-juristic person or entity with one with juristic capacity to sue, or be sued for there was initially no party in existence that could be replaced or substituted. See OLU OF WARRI V. ESSI (1958) SCNLR 385; OKECHUKWU V NDOH (1967) NMLR, 368; EHIDEMHEN V.MUSA (2000) 8 NWLR (669), 540 at 567. PER GARBA, J.C.A.

MOHAMMED LAWAL GARBA, J.C.A(Delivering the Leading Judgment):This appeal is against the decision of the High Court of Cross River State in Suit No. C/82/97 contained in a ruling delivered on 21/5/2002. The Respondent herein, as plaintiff in the High Court, had taken an action against the Appellant and other Respondents and in the course of proceedings, had applied to that court for leave to amend the name of the 1st Appellant, then 1st Defendant, from G.O.C. NIG. LTD. To G.O.C. ENTERPRISES NIG. LTD. In the aforementioned decision, the High Court granted the application to amend and being aggrieved thereby, the Appellant has brought this appeal vide a notice of appeal dated the 28th but filed on the 30/5/2002.

I have noted that the record of the appeal, was transmitted to and received in the court on the 23/9/08, a period of more than six (6) years from the date the notice of appeal was filed. Clearly the record of appeal was transmitted outside the time limited by both the Court of Appeal Rules, 2007 under which it was compiled and transmitted as nuclear the Court of Appeal Rules, 2011 applicable at the time the appeal was heard. There is no record in the appeal file that the record had been regularized by the court before or at the hearing of the appeal. By the provisions of Order 8, Rule 1, of the Court of Appeal Rules, 2011, the Registrar of the High Court was required to compile and transmit the record of the appeal to the court within sixty (60) days after the filing of the notice of appeal. Under Rule 4 of Order 8, where the Registrar failed or neglects to do so, “it shall become mandatory for the Appellant to compile the record of all documents and Exhibits necessary for his appeal and transmit to the court within 30 days after the registrar’s failure or neglect” Although the Rules of court are meant to be obeyed and complied with by the parties and the court, since there was no complaint of any prejudice by any of the parties on the late transmission of the record of appeal, I would proceed on the assumption that it was transmitted as required by the Rules.

I have also observed that the Appellant’s brief filed on the 19/12/08, was out of the time prescribed by the Rules of court for the Appellant to file it after transmission of the record of the appeal to this court. This is confirmed by the endorsement for the payment of filing fees on the face of the Appellants’ brief of argument which indicate that the Appellant had paid the sum of N1,400.00 as penalty for filing the brief fourteen (14) days outside the time provided by the Rules. Yet there is no record that the Appellant brief had been regularized by the court through the usual orders for extension of time and deeming it to have been properly filed in the appeal

Once again, there is no record of compliance or obedience to the provisions of the Court Rules enacted to regulate and govern proceedings and practice in dealing with appeals that come before the court. Because the issue was not raised at the hearing of the appeal and there was record that the Respondent was duly served with the Appellant’s brief but had not reacted to it by filing the Respondent’s brief in the appeal, once more, I am prepared to condone the irregularity in the peculiar circumstances of the appeal and assume that the Respondent suffers no prejudice by the late filing of the Appellant’s brief. The said brief is deemed properly filed since the Appellant had paid the requisite penalty prescribed by the Rules of the court for so doing.

Like I have stated above, the Respondent did not file a brief of argument in this appeal and so the appeal is uncontested as the Respondent is deemed in law to have conceded to the points canvassed in the issues for determination as contained in the Appellant’s brief. See SALAU v FARA-KOYI (2001) 13 NWLR (731) 602; UGBOAJA v SOWEMIMO (2008) 10 MJSC, 105. In addition, the Respondent, though duly served with hearing notice of the appeal, was not represented at the hearing of the appeal.

I have perused the two (2) grounds contained on the Appellant’s notice of appeal which is at pages 37 – 38 of the record of the appeal and the ruling appealed against which appears at pages 34 – 36 of the said record,

Undoubtedly, the Appellant’s ground B did not arise from the decision appealed against. The ground is as follows:-

“B. The Learned Trial Judge erred in law when he granted the Plaintiff leave to amend the name of the 1st Defendant for the reason only that the Plaintiff’s Application was brought early in the proceedings.

PARTICULARS OF ERROR

a. The issue before the trial court was whether the court had the power to grant leave to amend the name of party who is a non juristic person and unknown to law to make her assume a juristic personality and not whether such application was brought timeously or otherwise.

b. That time if not of the essence in an application for amendment of a writ of summons where a party whose name is sought to be amended is unknown to law being a non juristic person.”

I can find nowhere in the ruling where the High Court stated that the application was granted because it was filed or brought early in the proceedings. The High Court only made reference to the case of EUROPE TRADERS (UK) LTD. V. NIG. BANK FOR COMM. & INDUSTRY LTD. (1990) 6 NWLR 124, where a single Defendant sued in the suit and it was held that if an application to amend was brought in time, it could have been granted in the circumstances of the case. Thereafter, the High Court only stated that:-

“I think this application for amendment will be granted and it is hereby granted as prayed.”

No reason was given for, the grant of the application,

For not flowing from the decision appealed against, the Appellant’s ground of appeal ‘B’ is incompetent and liable to be struck out along with the issue formulated from it which is contagiously affected by the incompetence of eth ground See F.B.N. PLC. V. AKPARAOBONG COMM. BANK LTD. (2006) ALL FWLR (319) 927; JOHN HOLT VENTURES V. OPUTA (1996) 9 NWLR (470) 10; ONOMIARU V. R.C.C. (1995) 7 NWLR (406) 214.

In the above premises, the ground ‘B’ contained on the notice of appeal as well as the Issue 2 contained in the Appellant’s brief which was said to have been from the said ground, are both struck out for being incompetent.

We are now left with the Appellant’s Issue 1 which was indicated to have been distilled from the ground of appeal ‘A’. The issue is as follows:

“WHETHER A PARTY CAN AMEND COURT PROCESSES TO REPLACE NON-JURISTIC PERSON WITH JURISTIC PERSON.”

The half a page submissions by the learned counsel for the Appellant on the issue are simply that G.O.C. NIGERIA LIMITED cannot be sued because it is non juristic and cannot be amended or substituted with G.O.C. ENTERPRISES LTD., a juristic person. The case of OBIKE ENTERPRISES LTD. V. AVI TELETRONICS LTD. (2005) 15 NWLR (948) 362 at 374 was cited and it was said that the High Court was in error to have granted the application for amendment. We were urged to allow the appeal on this issue.

I have read the endorsement on the writ of summons taken out against the Defendants among whom is the Appellant, G.O.C. Nigeria Limited, that has been amended by the order of the High Court in the ruling appealed against to read G.O.C. Enterprises Nigeria Limited. Learned counsel for the Appellants submissions are that the Appellant is not juristic and cannot sue or be sued in the name in which the notice of appeal was filed. The effect is that according to the learned counsel, the appeal is not properly constituted as to the parties since the only Appellant contained on the notice of appeal, lacks the juristic competence to sue or be sued. Because the High Court had amended the name of the 1st Defendant in the suit, an appeal against the amendment should be in the name as amended and not in the name amended. If I agree with the submissions by the learned counsel for the Appellant that the Appellant in the name the appeal was brought was non juristic, it would mean that there is no competent Appellant in the appeal and so it is not properly constituted thereby liable to be struck out. That is the position stated by the court in the case cited and relied above by the Appellant’s counsel.

(a) a legal persona under by the name by which it sues or is sued.

(b) a right to sue or be sued by that name.

“No cause or matter shall be defeated by reason of misjoinder or non-joinder of parties, and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.”

Similar, the apex court had earlier in the case of CROSS RIVER STATE NEWSPAPER CORP. V. ONI (1995) 1 NWLR (371) 270 held that:-

“It is a settled principle of law that non-joinder or misjoinder of parties will not be fatal to an action and non proceedings shall be rendered null and void for lack of competence or jurisdiction simply because a plaintiff joins a party who ought not to have been joined.”

See also OKOYE V. N.C. & F. CO. LTD. (supra) SAPO V. SUNMONU (2010) 3 – 5 SC (II) 130; OSONDU & CO. LTD. V. BONCH (NIG.) LTD. (2002) 3 SC, 42 at 61.

For the aforementioned reasons, there is merit in the submissions by the learned counsel for the Appellant that the High Court erred in law in granting an amendment in the name of a non-juristic party; G.O.C. NIG. LTD. to a juristic entity; G.O.C. ENTERPRISES (NIG.) LTD. What the High Court in fact, did was to substitute the name of a non existent Defendant with the name of an existing juristic entity which by the authorities cited above, cannot be done in law. In the result, I resolve the issue in Appellant’s favour and being the sole live issue for determination in the appeal, the appeal succeeds. It is allowed and consequently, the amendment order granted by the High Court in the Ruling appealed against, is hereby set aside.

I make no order on costs.

UZO I. NDUKWE-ANYANWU, J.C.A: I had the privilege of reading in draft form the judgment just delivered by learned brother Mohammed Lawal Garba JCA. I am in total agreement with his reasoning and conclusions. I also abide by all the consequential orders contained therein.

ISAIAH OLUFEMI AKEJU, J.C.A: I had the opportunity of reading before now the lead judgment of my learned brother, Mohammed Lawal Garba, JCA just delivered. I agree with the reasons given therein and the conclusion that the appeal is meritorious. I allow the appeal and abide by the consequential order in the lead judgment.

I make no order as to costs.

Appearances

Parties were absent though served.For Appellant

AND

Parties were absent though served.For Respondent