FEDERAL COLLEGE OF EDUCATION (TECHNICAL) GUSAU & ANOR v. UMAR ABUBAKAR (2013)

FEDERAL COLLEGE OF EDUCATION (TECHNICAL) GUSAU & ANOR v. UMAR ABUBAKAR

(2013)LCN/6058(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 26th day of March, 2013

CA/S/75m/2012

RATIO

ACTION: WHETHER A NON-JURISTIC PERSON IS A COMPETENT PARTY TO A SUIT

“…a non-juristic person is not a competent party to a suit. According to Edozie JCA in ATAGUBA & COMPANY V GURA NIGERIA LIMITED (2005) 2 SC (PT.11) 101. “The law, however, recognizes that apart from natural and juristic persons, same non-legal entities can sue and be sued eo nominee. Thus, it has been 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 person under the name by which it sues or is sued eg corporation sole and aggregate, bodies incorporated by foreign law and “quasi-corporations” constituted by Act of parliament; or (b) A right to sue or be sued by that name eg partnerships, trade unions, friendly societies and foreign institutions authorized by their aim law to sue and be sued but not incorporated” Per AWOTOYE, J.C.A.

NON COMPLIANCE WITH RULES OF COURT: EFFECT

“As a general rule, non-compliance with rules of court is primarily an irregularity. See JULIUS ENAKHIMION V EDO TRANSPORT SERVICES (2006) ALL FWLR (PT 334) 1882 at 1904-1905; UKO V EKPENYONG (2006) ALL FWLR (PT 324) 1927.” Per AWOTOYE, J.C.A.

INTERPRETATION OF STATUTES: LITERAL RULE OF INTERPRETATION

“Where the words of the statute are clear and unambiguous in their ordinary meanings, effect must be given to them. See ADETAYO & ORS V ADEMOLA & ORS (2010) 15 NWLR (PT 1215) 169.” Per AWOTOYE, J.C.A.

JUSTICES

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

FEDERAL COLLEGE OF EDUCATION (TECHNICAL) GUSAU & ANR – Appellant(s)

AND

UMAR ABUBAKAR – Respondent(s)

TUNDE O. AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal against the decision of Federal High Court, Gusau Division, delivered on 30/4/2012.

The Respondent (then the plaintiff) had claimed as follows against the appellants:

“1. A declaration that the Defendants’ letter with Reference No: FCET/GS/R/SP.244 dated 24th June 2011 purporting to dismiss the Plaintiff from the services of the 1st Defendant is unlawful, malicious, irregular and a flagrant violation of the Plaintiff’s right of employment.

2. A declaration that the Defendants’ letter with Reference No: FCET/GS/R/SP.244 dated 24th June, 2011 purporting to dismiss the Plaintiff from the services of the 1st Defendant on the ground of consideration of the reports of the Senior Staff Disciplinary Committee Appointment and Promotions Committee bordering on allegations of crimes which the Plaintiff had not been convicted for by any regular court of the land is unlawful, irregular and a flagrant violation of the Plaintiff’s right of employment and consequently null and void and of no effect whatsoever.

3. An order of this Honourable Court setting aside the purported dismissal of the Plaintiff by the Defendants, same being unlawful, malicious, irregular and a flagrant violation of the Plaintiff’s right of employment until the mandatory retirement age.

4. An order of this Honourable Court directing the Defendants to reinstate the Plaintiff to his employment with the 1st Defendant and to be paid all his benefits and emoluments, including the 50% of the salary arrears increments effective from the period of his interdiction, being August, 2009 till the period of the purported dismissal.

5. An order awarding the sum of N5,000,000.00 (five Million Naira only) to the Plaintiff as general and exemplary damages against the Defendants.

6. Plus the cost of this action.”

After parties had exchanged pleadings and called witnesses, the learned trial judge gave judgment inter alia thus:

“Now, the Plaintiff having proved his case as founded by this Court above, pursuant to which this Court declared his dismissal by the 2nd Defendant unlawful, the said Plaintiff is in my view, entitled to judgment.

The only appropriate remedy to the unlawful dismissal of the Plaintiff by the Defendants in my opinion is to reinstate the Plaintiff back to his employment. See the case of OLANIYAN V UNILAG (supra) at 180.

Consequently, reliefs 1, 2, 3, 4 and 6 as endorsed on the Writ of Summons and statement of claim are granted the Plaintiff against the Defendants. However, relief 5 as endorsed on the Writ of Summons and statement of claim is refused because granting that relief in my view will amount to double compensation in view of the granting of relief 4, which is wrong. See the case of C.C.B (NIG) LTD V NWANKWO (1993) 4 NWLR (Pt.286) 159 @ 174.

Judgment is therefore entered for the Plaintiff.

That is my decision.”

The appellants, dissatisfied with the above judgment, appealed on 25/5/2012 to this Court.

After transmission of record of appeal, parties filed and exchanged briefs of argument.

The appellants’ brief was filed on 3/12/2012. The brief was settled by J C Shaka from Al-Ihsan Law Chambers on behalf of the appellants.

Learned counsel for the appellants formulated two issues for determination as follows:

“i. whether or not the defendants as endorsed on the writ of summons in this case is a juristic person and can be sued as such. This issue is distilled from ground 1 of the amended notice of appeal.

ii. whether the claim of the respondent which was not accompanied by an affidavit of verification and consequently not endorsed by the registrar with the words to the effect that an affidavit verifying the claim endorsed on the writ of summons was before him at the time of sealing and issue of the writ of summons is competent to invoke the jurisdiction of the court below to adjudicate.

This issue is distilled from ground 3 of the amended notice of appeal.”

On issue No 1, learned counsel for the appellants submitted that the respondent did not sue the proper defendants before the court below. He referred to sections 1 and 2 of the Federal College of Education Act Cap F8 LFN. He submitted that the corporate name of the 1st appellant was “Federal College of Education (Technical) Gusau, Sokoto State and not Federal College of Education (Technical) Gusau (FCE (T)”. He submitted further that an artificial entity could only sue or be sued in its corporate name as assigned by law. He relied on ATAGUBA AND COMPANY V GURA NIGERIA LTD (2005) 2 SC (pt.11) 101; NKOCHA V FEDERAL UNIVERSITY OF TECHNOLOGY (1996) 1 NWLR (PT 422) 112 at 121, NJEMANZE V SHELL BP PORT HARCOURT (1966) 1 ALL NLR 8.

On the 2nd appellant, learned counsel submitted that the enabling law did not envisage that the 2nd appellant could sue or be sued. He referred to Section 2 of the Federal College of Education Act.

He then submitted that the 2nd appellant was an incompetent party, and that the claim of the respondent was wrongly constituted and so incompetent. He urged the court to resolve issue No 1 in favour of the appellants.

On issue No 2, learned appellants’ counsel submitted that the judicial powers of the court below were not properly invoked and the mode of commencement of the action was wrong. He referred to Order 3 Rule 4 of the Federal High Court Rules 2009 and Civil Form 1 in Appendix 6 to the Rules.

He argued that from the use of the words “Before the writ is issued the following certificate must be indorsed on it” in Form 1 in Appendix 6 to the Rules, it was clear that a plaintiff was required to produce an affidavit of verification of the endorsement on the writ at the time of prosecution as authority for the registrar of the court to seal and to issue the writ. He cited the case of AGIP (NIG) LTD V AGIP PETROLEUM INTE’L (2010) 5 NWLR (PT 1187) 348 at 419. He urged this court to give ordinary interpretation to the words “before the writ is issued the following certificate must be indorsed on it”. He relied on ENYONG V EKPEYONG (2011) 43 WRN 165 at 176 and a host of other cases.

He submitted that a writ issued or sealed without an affidavit of verification was incompetent and should be set aside because it was unknown to the rules of the court below. He cited MOBIL PRODUCING NIGERIA UNLIMITED V. MONOCO, OJIONG V DUKE (2003) 14 NLR (PT 841) 581 at 618 and other cases, OGBU & ORS V URUM & ORS (1984) 4 SC 1, RE APPOLOS UDO (1987) 4 NWLR (PT 63) 120.

He urged the Court on the final note, to allow the appeal.

The Respondent’s brief was filed on 27/12/12 and prepared by PWAHOMDI LM. Having earlier filed Notice of Preliminary objection dated 27/12/2012, the Respondent incorporated the arguments therein in the Respondent’s brief of argument.

His objections were in the following terms;

a) That Grounds 1 and 3 of the amended Notice of Appeal and the issues arising therefrom were incompetent and liable to be struck out on the following grounds;

(i) None of the grounds arose from the ratio of the judgment appealed against.

(ii) The grounds raised fresh points of law that were never canvassed before the lower court.

(iii) The appellants did not seek leave of this court before raising the fresh points of law.

b) Ground 2 of the Notice and Grounds of Appeal was incompetent and liable to be struck out for not being covered by any of the issues formulated by the appellants.

Learned counsel for the Respondent on issue (a) of the objection submitted that an appeal was not a fresh action but a rehearing of the same case and issues tried at the lower court and for this reason a party was not permitted to change the case upon which judgment was delivered on appeal. He cited IYANDA V AMORI (2007) 37 WRN 87 at 97-98, SAPO & ANR V SUNMONU (2010) 6 SCM 204 at 215 and other cases.

He submitted that since leave of court was not sought and obtained before the appellants raised fresh issue of law even though jurisdictional, grounds 1 and 3 of the amended Notice of Appeal should be struck out for being incompetent.

On issue (b) of the objection, learned Respondent’s counsel submitted that the appellants abandoned Ground 2 of the Notice of Appeal as none of the issues formulated by them covered ground 2.

He referred to FAFUNMI V ONILUDE (2004) 17 WRN 114, EDUOK V. OBOT (2007) 15 WRN 136 at 147 and other cases.

He therefore urged the court to strike out ground 2 of the amended Notice and grounds of appeal.

Learned counsel for the Respondent went further to formulate 2 issues for determination in the main appeal. The issues are:

“i) Whether given the state of the facts and law in this suit, the trial court properly assumed jurisdiction in this action as constituted to enter judgment against the Appellants? (This covers ground 1 of the amended notice and ground of appeal).

ii) Whether this action was commenced by due process of law to enable the trial court assume jurisdiction. (This covers ground 3 of the amended notice of and ground of appeal).”

On issue No 1 formulated by him, learned Respondent’s counsel submitted that the 2nd appellant was a creature of a statute and vested with the performance of specific public functions. He referred to ANOZIA V AG LAGOS STATE (2011) 4 WRN 150. Hence, the 2nd appellant was a competent and proper party to sue or be sued.

On the 1st appellant, learned counsel submitted that it was not in doubt that the 1st Defendant/Appellant was a juristic person and that the non-inclusion of Sokoto in its name did not mislead the parties.

He submitted further that the appellants, on being served with the originating processes proceeded to defend this action without raising any objection. He submitted that the non-inclusion of ‘Sokoto’ in the 1st appellant’s name was a misnomer. He cited UMUEZE V UMUEZE (2011) 16 WRN 132 at 150; USUAH V GOC (NIG) LTD (2012) 33 WRN 123 at 133.

He argued further that it was settled law that a misnomer was a mere procedural irregularity which did not affect jurisdiction of the court. He relied on CAMEROON AIRLINES V OTUTUIZU (2011) 1 SCM 70 at 92 and other cases.

Learned Respondent’s counsel submitted that the appellants waived their right to challenge the Constitution of the suit by not complaining timeously. He cited OYENIRAN V AJANI (2008) 38 WRN 174 at 203 and some other cases.

He concluded by urging the court to resolve the issue against the appellants but in favour of the Respondent.

On issue No 2 as formulated by him, learned counsel for the Respondent submitted that the contention of the appellants was founded on mere technicality. He submitted that the suit before the court below was commenced in compliance with the provision of the Federal High Court (Civil Procedure Rules) 2009. He added that the rules of the court were meant to assist in the cause of justice and not to defeat justice. He relied on IDIAGBON V COMMISSIONER FOR INDUSTRY (2012) 41 WRN 168.

He submitted further that objections to irregularities were to be made timeously and not after having participated in the proceedings. He relied on AGBAKOBA V INEC (2009) 24 WRN 1, ANYANWORO V OKOYE (2010) 18 WRN 34 and Order 51 Rule 2(1) of the Federal High Court (Civil Procedure Rules) 2009.

He finally urged the court to dismiss the appeal.

The appellants filed a reply on points of law to Respondent’s brief of argument. The Reply filed, in my respectful view, is a re-argument of the appeal and it is absolutely unnecessary having regard to the fact that it does not touch the preliminary objection raised. It is necessary to remind ourselves about the purpose of a Reply brief. In OJIOGU V OJIOGU & ANR (2010) 9 NWLR (PT.1196) 1, CHUKWUME – Eneh JSC on pages 13-14 of the report said:

“A reply brief is necessary when an issue of law or new questions are raised in the respondent’s brief of argument otherwise it is not required. The instant appellant’s reply is unnecessary as it is tediously repetitive of the appellant’s case as adequately covered in the main brief of argument”.

Also in UNITY BANK PLC V BOUARI (2008) 2-3 SC PT II page 1 at 24-25, Ogbuagu JSC considered the effect of failure of Respondent to file Reply brief thus:

“The failure of a Respondent to file a Reply brief is immaterial. This is because an Appellant will succeed on the strength of his case. But a Respondent will be deemed to have admitted the truth of everything stated in the Appellant’s Brief in so far such is borne out by the Records.”

I am of the humble opinion that the Reply brief of the Respondent in this instant appeal is a mere re-argument of the appeal.

I have carefully considered all the arguments canvassed on both sides as well as the contents of the record of appeal as transmitted to this Court. It is pertinent, for clarity’s sake, to first quote the grounds of appeal of the appellants in this case (without the particulars). The amended Notice of Appeal deemed filed on 26/11/2012 contains 3 grounds of appeal as follows;

“(1) The Plaintiff’s action before the court below was improperly constituted and incompetent by reason of absence of legally competent defendants and the court below wrongly assumed jurisdiction to adjudicate over same.

(2) The judgment of the court below is unreasonable unwarranted and cannot be supported having regard to the weight of evidence.

(3) The writ of summons dated 11/7/2011 issued at the instance of the respondent upon which the court below assumed jurisdiction to adjudicate as well as the proceedings leading to the judgment delivered by the trial court are incompetent and amounts to a nullity by reason of non-compliance with necessary mandatory condition precedent stipulated by Order 3 Rules 3 and 4 and/or Appendix 6 to the Federal High Court Civil Procedure Rules 2009.”

It is also significant to note that on 4/2/2013, the appellants sought and obtained leave to raise and argue grounds 1 and 3 of the amended notice of appeal, not having been raised at the court below.

I shall first treat the preliminary objection raised by the Respondent.

I must state right away that the objection of the Respondent to Grounds 1 and 3 of the Appeal, in view of the order of this court made on 4/2/2013 allowing the Appellants to argue Grounds 1 and 3, holds no water and it is accordingly overruled.

On ground 2 of the Appeal, I agree with the Respondent that it is not covered by any of the issues formulated.

I hold that it is abandoned therefore and it is accordingly struck out. See NEWSWATCH COMMUNICATIONS LTD V ATTA (2000) 2 NWLR (PT 646) 592.

Now to the main appeal.

I have carefully considered the issues as formulated by parties, I consider the issues formulated by the Respondent adequate in the determination of this appeal. I shall therefore adopt them for the purpose of this judgment.

I shall restate the issues again at the risk of repetition.

ii) Whether this action was commenced by due process of law to enable the trial court assume jurisdiction. (This covers ground 3 of the amended notice of and ground of appeal).”

On issue No 1, I shall proceed to resolve by first answering the following question:- Are the appellants, as sued in the court below, juristic persons?

By virtue of Section 1 of Federal College of Education Act, some Federal Colleges of Education were established. One of them is Federal College of Education (Technical) Gusau Sokoto State.

Section 1 of the said Act reads:

“1) There are hereby established the Federal College of Education specified in the First Schedule to this Act (in this Act collectively referred to as College) which shall have such powers and exercise such functions as are conferred on them by this Act.

2) Each college shall be a body corporate with perpetual succession and a common seal and shall have power to acquire and dispose of interests in movable and immovable property and may sue and be sued in its corporate name.”

By virtue of the operation of Section 315 of the Nigerian 1999 Constitution (as amended) the Federal Colleges of Education Act is an existing law which operates subject to the provisions of the 1999 Constitution.

Section 315 of the 1999 Constitution reads:

“(1) Subject to the provisions of this Constitution, an existing law, Existing law, shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be-

(a) an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution; and

(b) a Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.

(2) The appropriate authority may at any time by order make such modifications in the of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of Constitution.

(3) Nothing in this Constitution shall be construed as affecting the power of a court of law or any tribunal established by law to declare invalid any provision of an existing law on the ground of inconsistency with the provision of any other law, that is to say-

(a) any other existing law;

(b) a Law of a House of Assembly;

(d) any provision of this Constitution.

(4) In this section, the following expressions have the meanings assigned to them, respectively-

(a) “appropriate authority” means-

(i) the President, in relation to the provisions of any law of the Federation,

(ii) the Governor of a State, in relation to the provisions of any existing law deemed to be a Law made by the House of Assembly of that State, or

(iii) any person appointed by any law to revise or rewrite the laws of the Federation or of a State;

(b) “existing law” means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date; and

(5) Nothing in this Constitution shall invalidate the following enactments that is to say-

(a) the National Youth Service Corps Decree 1993;

(b) the Public Complaints Commission Act;

(d) the Land Use Act,

and the provisions of those enactments shall continue to apply and have full effect in accordance with their tenor and to the like extent as any other provisions forming part of this Constitution and shall not be altered or repealed except in accordance with the provisions of Section 9 (2) of this Constitution.

(6) Without prejudice to subsection (5) of this section, the enactments mentioned in the said subsection shall hereafter continue to have effect as Federal enactments and as if they related to matters included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.”

Section 3 of the said Constitution states:

“(1) There shall be thirty-six States in Nigeria, that is to say, Abia, Adamawa, Akwaibom, Anambra, Bauchi, Bayelsa, Benue, Borno, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu, Gombe, Imo, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Kwara, Lagos, Nasarawa, Niger, Ogun, Osun, Oyo, Plateau, Rivers, Sokoto, Taraba, Yobe and Zamfara.

(2) Each State of Nigeria named in the first column of Part I of the First Schedule to this Constitution shall consist of the area shown opposite thereto in the Second Column of that Schedule.

(3) The Headquarters of the Government of each State shall be known as the Capital City of that State as shown in the Third Column of the said Part I of the First Schedule opposite the State named in the Column thereof.

(4) The Federal Capital Territory, Abuja, shall be defined in Part II of the First Schedule to this Constitution.

(5) The Provisions of this Constitution in Part I of Chapter VIII hereof shall in relation to the Federal Capital Territory, Abuja, have effect in the manner set out thereunder.

(6) There shall be seven hundred and sixty-eight local government areas in Nigeria as shown in the second column of Part I of the Schedule to this Constitution and six area councils as shown in Part II of that Schedule.

Under Part I of the First Schedule of the Constitution, the Capital City of Zamfara State is Gusau. The name of Gusau has been removed from the cities under Sokoto State. Viewed in the above light, the First Schedule of the Federal Colleges of Education Act in so far it states that Gusau is under Sokoto State will conflict with the provision of the Constitution and so necessarily by virtue of Section 315 (1a), it will have to apply with such modification to bring it into conformity with the provision of the Constitution. The implication of this is that Federal Colleges of Education (Technical) Gusau Sokoto State, by operation of Sec 315 (1a) of Constitution is modified to read Federal College of Education (Technical) Gusau Zamfara State.

True, a non-juristic person is not a competent party to a suit. According to Edozie JCA in ATAGUBA & COMPANY V GURA NIGERIA LIMITED (2005) 2 SC (PT.11) 101.

“The law, however, recognizes that apart from natural and juristic persons, same non-legal entities can sue and be sued eo nominee. Thus, it has been 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 person under the name by which it sues or is sued eg corporation sole and aggregate, bodies incorporated by foreign law and “quasi-corporations” constituted by Act of parliament; or (b) A right to sue or be sued by that name eg partnerships, trade unions, friendly societies and foreign institutions authorized by their aim law to sue and be sued but not incorporated”

But does the mere inclusion of (TCE (T) in the name of the 1st appellant (having dealt with the issue of Sokoto State) render the 1st appellant a non-juristic person? It appears to me to be a mere mistake in the name of the 1st appellant.

Certainly, the parties were not misled in any way. I have gone through the pleadings filed in the court below.

I have seen that the appellants (defendants in the court below) admitted paragraphs 2 and 3 of the statement of claim in paragraph 2 of their joint statement of defense. For clarity’s sake, I shall quote the said paragraphs of the pleadings;

Paragraphs 2 and 3 of the statement of claim of the plaintiff state:

“2. The 1st Defendant is an educational institution established by Act and is situated in Gusau within jurisdiction of this Honourable Court.

3. The 2nd Defendant is a council vested with the governance and direction of the affairs of the 1st Defendant.”

Paragraph 2 of the 1st and 2nd Defendants’ statement of defense states thus;

“The Defendants admit paragraphs 2 & 3 of the Statement of Claim, while paragraph 4 is admitted only to the extent that the Plaintiff was an auditor of the Senior Staff Association and that a report concerning the non remittance of N4,463,069.08 was submitted.”

I am of the view that this mistake in the name of the 1st appellant is a mere misnomer. “A misnomer will arise where a party is sued in the wrong name and the courts will usually grant amendments to correct the mistake even on appeal. However, naming a non-juristic person as a party is not misnomer and amending same to substitute a juristic person is out of it. This is because there cannot be a valid amendment of the title of the suit since there never was a legal person who was brought before the court by the action – OKECHUKWU & SONS V NDAH (1967) NMLR 368.” See also EMESPO J CONT LTD V CORONA S AND CO (2006) 5 SC (pt 1) 19.

Our attention was drawn by the appellants’ counsel to the case of NKOCHA V FEDERAL UNIVERSITY OF TECHNOLOGY (supra). In that case, the FEDERAL UNIVERSITY OF TECHNOLOGY OF OWERRI was sued as FEDERAL UNIVERSITY OF TECHNOLOGY. On appeal to this Court, it was held that it was a misnomer as the defendant was not misled. I am of the view that this authority does not support the case of the appellants.

I therefore hold that the 1st appellant as sued is a juristic person over whom the court below rightly exercised jurisdiction.

On the second appellant, clearly from the wordings of the Federal College of Education Act, its drafters do not intend to make the Governing Council of each college a body corporate which may sue or be sued in its corporate name. While section 1(2) of the Act expressly states so in respect of the College it does not state so in respect of the Governing Council of the College. One is more fortified in this view when it is considered that the Act establishes several other bodies apart from the Governing Council. The Act establishes, for instance;

(a) The Academic Board in section 8 of the Act.

(b) Selection Board in section 16 of the Act.

Where the words of the statute are clear and unambiguous in their ordinary meanings, effect must be given to them. See ADETAYO & ORS V ADEMOLA & ORS (2010) 15 NWLR (PT 1215) 169.

I therefore hold that the 2nd appellant is not a juristic person but a component and integral part of the 1st appellant.

I resolve issue No 1 in favour of the appellants in respect of the 2nd appellant but against the appellants on the 1st appellant.

Now to the second issue. The contention of the appellants is that it was mandatory for the claim of the plaintiff in the court below to be accompanied by an affidavit of verification. He relied on ORDER 3 RULE 4 of the Federal High Court Civil Procedure Rules 2009 and Civil Form 1 in Appendix to the Rules.

Now Order 3 Rule 4 of the Federal High Court Civil Procedure Rules states “Except in cases in which different forms are provided in these Rules the writ of summon shall be in Form 1 with such modifications or variations as circumstances may require”

Form 1 is provided under Appendix 6 of the Rules. It also provides that before the writ is issued, the following certificate must be endorsed on it:

The Registry Federal High Court

In the…………………………..Judicial Division

A sufficient affidavit in verification of the endorsement on this writ to authorize the sealing thereof has been provided to me this …………..day of……………….20………

………………………………….

Signature of Registrar

With due respect to learned counsel for the appellants, I have no hesitation in resolving issue No 2 against the appellants for the following reasons;

i. The writ of summons under Order 3 Rule 4 of the Rules applies with such modifications and variations as circumstances may require.

ii. Appendix 6 lays down by the required endorsement a condition precedent to the sealing of the writ which conflicts with Order 3 Rule 12(1) of the Rules Order 3 Rule 12(1) of the Rules Order 3 Rule 12(1) states “The Registrar shall seal every originating process whereupon it shall be deemed to be issued”

iii. The failure of the Registrar to endorse the writ of summons is a mere procedural irregularity which cannot nullify the proceedings, or any document, which ought to have been challenged by way of application to set aside the writ before the defendants took any fresh step and within reasonable time. See Order 51 Rule 2(1) of the Federal High Court (Civil Procedure Rules). The defendants after being served with the writ of summons and other processes took fresh step by filing statement of defense. It is remarkable to note that the defendants throughout the proceedings at the court below never raised an objection to the writ. It is too late in the day to seek to nullify the proceedings on this score. They are deemed to have waived their right to object. As a general rule, non-compliance with rules of court is primarily an irregularity. See JULIUS ENAKHIMION V EDO TRANSPORT SERVICES (2006) ALL FWLR (PT 334) 1882 at 1904-1905; UKO V EKPENYONG (2006) ALL FWLR (PT 324) 1927. See also EGBO V AGBARA (1997) 1 NWLR (PT 481) 293; AGBAKOBA V INEC (2008) 18 NWLR (PT 1119) 489.

I therefore resolve issue No 2 in favour of the Respondent.

This appeal succeeds in part. The court below had no jurisdiction over the 2nd defendant/appellant who is not a juristic person. The judgment and order of the lower court in so far they affect the 2nd appellant/defendant are hereby set aside as I hereby order that the name of the 2nd appellant and the case against it are struck out. The appeal of 2nd appellant is hereby allowed.

However, I affirm the judgment and orders of the lower court against the 1st appellant as the appeal of the 1st appellant lacks merit and it is accordingly dismissed with N60,000.00 cost in favour of the Respondent.

TIJJANI ABDULLAHI, J.C.A.: I read in advance the leading judgment of my learned brother T. O. Awotoye, JCA just delivered. My Lordship has exhaustively and meticulously treated all the live issues that call for determination in this appeal and rightly allowed the appeal in part.

It is crystal clear from the pleadings of the parties and the evidence adduced in support of same, the 2nd appellant cannot be a juristic person culpable of being sued as rightly found by his Lordship. I adopt his reasoning and conclusion as mine on this aspect of the appeal under consideration. I too struck out its name for not being a juristic person. The decision of the Trial Court in respect of the 1st appellant is hereby affirmed by me. I abide by all the consequential orders therein contained including order as to costs.

JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege of reading before now in draft the judgment just delivered by my learned brother Tunde O. Awotoye, JCA. He has ably dealt with all the issues that arose for determination in this appeal.

I have nothing more to add. I too allow the appeal of the 2nd Appellant and affirm the judgment and orders of the Lower Court against the 1st Appellant.

I abide by all the consequential orders made in the leading judgment.

Appearances

J. C. Shaka Esq.For Appellant

AND

Pwahomdi, L. M. Esq.For Respondent