THE FEDERAL GOVERNMENT OF NIGERIA & ORS v. SHOBU NIGERIA LTD & ANOR
(2013)LCN/6336(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 25th day of June, 2013
CA/I/355/09
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
1. THE FEDERAL GOVERNMENT OF NIGERIA
2. THE FEDERAL MINISTRY OF WORKS
3. THE ATTORNEY GENERAL OF THE FEDERATION – Appellant(s)
AND
1. SHOBU NIG. LTD
2. MR. OLUWAGBENGA SOBUKOLA – Respondent(s)
RATIO
WHETHER OR NOT LEAVE OF COURT MUST BE SOUGHT TO RAISE AN ISSUE NOT DECIDED BY THE LOWER COURT
It is trite that there are exceptions to the general rule that the leave of court must be sought and obtained before raising an issue not decided by the lower court. The exceptions are where the new issue(s) borders on jurisdiction, leave need not be obtained. It is true that the issue of non-juristic personality of the second Appellant (Federal Ministry of Works) was not raised in the lower court, but, this was raised in the first ground of appeal which challenged the jurisdiction of the court. The issue of jurisdiction is very fundamental and touches on the competence of a court or tribunal to adjudicate on the suit before the court or tribunal, see, STATE v. ONOGORUWA (1992) 2 NWLR (Pt. 221) 33; GALADIMA v. TAMBAI (2000) 11 NWLR (Pt. 677) 1; G & C LINES v. OLALEYE (2000) 10 NWLR (Pt. 676) 613. It is the law that the issue of jurisdiction is a threshold issue which could be raised at any stage of a proceeding and by any party even in the Supreme Court for the first time, no leave of court is required. It could be raised by the court suo motu whether or not the parties raised it. See, MATARI v. DANGALADIMA (1993) 3 NWLR (Pt. 281) 266; STATE v. ONOGORUWA (1992) 2 NWLR (Pt. 221) 33 and LAWRENCE v. A-G FEDERATION (Supra). PER UWA, JC.A.
THE COMMON LAW RULE OF QUI PER ALIUM FACIT, PER SEIPSAM FACERE VIDETUR
The common law rule is expressed in the maxim: Qui per alium facit, per seipsam facere videtur which means; He who does an act through another is deemed in law to do it himself. For this reason, a person cannot escape legal liability merely because he has done what he did through an agent. The act of the first and second Appellants as alleged, of allowing or channeling flood water which caused devastating flood to the property of the Respondents is regarded as the act of the principal, the Federal Government of Nigeria, the 1st Appellant. See, AGBONMAGBE BANK LTD. v. GENERAL MANAGER G.B. OLLIVANT LTD. (1961) 1 ALL NLR 116. Also, LEVENTIS TECH. LTD. v. PETROJESSICA ENT. LTD. (1992) 2 NWLR (Pt. 224) P. 459 at 469 in which ALLIED TRADING CO. LTD. v. CBN LINE (1985) 2 NWLR (Pt. 5) 74 was relied upon and AGBOOLA v. SAIBU (supra).
“In AGBOOLA v. SAIBU (supra) at page 569, Paras. A-D, His Lordship Adio, J.C.A., then of this Court where the Federal Ministry of Science and Technology was a party held thus: “The real position is that research institutes, like the 2nd Appellant, are established by orders made by the appropriate Minister under Section 1(1) of the National Science and Technology Act, 1980, No. 1 of 1980. Any Institute established under the provision of the section is according to Schedule 1 to the Act, a body corporate with perpetual succession and a common seal and may sue and is sued in its corporate name. Such an institute has power to acquire and hold property and any interest in land. Its governing board appoints employees other than the director who is appointed by the appropriate Minister. Therefore, an employee of an institute, like the Respondents, who is aggrieved by anything done or omitted to be done by the institute or its employee in relation to his employment may, if he so desires, sue the institute or its employee in question. There is nothing in the Act to the effect that the 3rd Appellant owned an institute established under section 1 of the said Act. The reasons given by the learned trial Judge, quoted above, for holding that the 3rd Appellant should be clothed with legal personality and with the power to sue and be sued can, therefore, not be sustained. The 3rd Appellant is not a juristic person that can sue or be sued. See AGBONMAGBE BANK LTD. v. GENERAL MANAGER, G.B. OLLIVANT LTD. (1961) 1 ALL N.L.R. 116; FAWEHINMI v. NBA (No. 2) (1989) 2 NWLR (Pt. 105) 558.”
(Underlined mine for emphasis.)
WHETHER OR NOT AN AGENT ACTING ON BEHALF OF A KNOWN PRINCIPAL INCURS LIABILITY
This court in U.B.A. PLC v. OGUNDOKUN, (2009) 6 NWLR (Pt. 1138) 450 at 483-484 paragraphs G-A. His Lordship Adekeye, J.C.A. (as he then was) held thus: “It is trite that an agent acting on behalf of a known and disclosed principal incurs no liability. This is because the act of the agent is the act of the principal. It was the principal who did or omitted to do what the agent did or omitted to do. The common law rule is expressed in Latin maxim qui facit per aluim facit per se, a sum facere indepur which means he who does an act through another is deemed in law to do it himself, An action against an agent in its private capacity for acts done on behalf of a known and disclosed principal is incompetent NIGER PROGRESS LTD v. N.E.L. CORPORATION (1989) 3 NWLR (Pt. 107) PAGE 68; LEVENTIS TECH. LTD v. PETROJESSICA ENT. LTD. (1992) 1 NWLR (Pt. 214) Pg. 459; FAITH ENTERPRISES LTD. v. B.A.S.F. (NIG) LTD. (2001) 8 NWLR (Pt. 714) Pg. 242; ESSANG v. AUREOL PLASTIC LTD. (2002) 17 NWLR (Pt. 795) Pg.155.” (Underlining mine for emphasis.) PER UWA, J.C.A.
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of Molokwu, J. of the Federal High Court, Ibadan against the Appellants delivered on 21st December, 2007.
The Respondents were the plaintiffs in the lower court who in their amended statement of claim sought the following reliefs:
(1) “A declaration that the first and second defendants who through the execution of road construction works” at the intersection or thereabout of the Lagos-Ibadan Expressway and the Ibadan Ilorin Road dualization (under construction) at Ojoo, Ibadan, by its agents the Federal Road Maintenance Agency (FERMA), and negligent by directing the drainage channel which caused devastating flooding to the properties of the plaintiffs.
(2) A declaration that the acts of the 1st and 2nd defendants in the execution of road construction works at the intersection or thereabout of the Lagos-Ibadan Expressway and the Ibadan-Oyo-Ilorin Road dualization (under construction) at Ojoo, Ibadan by its agent the Federal Road Maintenance Agency (FERMA), by directing the drainage channel which caused devastating flooding to the property of the plaintiffs constitutes nuisance.
(3) An order directing and or compelling the defendants by themselves their agents howsoever called to remove forthwith the drainage channel and all other forms of nuisance causing the flooding, away from the direction of the plaintiff’s properties at the intersection or thereabout of the Lagos-Ibadan expressway and the Ibadan-Oyo-Ilorin road dualization (under construction) at Ojoo, Ibadan in abatement of the continuing nuisance.
(4) An order for the payment of Twelve Million Naira (N12,000,000.00) by the defendants to the plaintiffs as a compensation for special damages caused by the act of negligence of nuisance (sic) of the 1st and 2nd defendants required for the restoration of the entire premises of the plaintiffs depreciated properties at Ojoo, Ibadan back to their existing use value.
(5) An order for the payment of Five Million Naira (N15,000,000,00) by the defendants to the plaintiffs as compensation for general damages, deprivation and disturbances caused by the acts of negligence and nuisance of the 1st and 2nd defendants in the execution of the construction works at the intersection or thereabout of the Lagos Ibadan Expressway and the Ibadan-Oyo-Ilorin Road dualization (under construction) at Ojoo, Ibadan.”
At the close of trial, judgment was entered in favour of the plaintiffs in the sum of N12,000,000,00 (Twelve Million Naira) and costs of N50,000.00.
Dissatisfied with the said judgment the defendants (now Appellants) filed a Notice of Appeal on 18th January, 2008, pages 83-84 of the printed records.
The Appellants formulated two issues for the determination of this appeal. They are:
“ISSUE 1:
Whether the Federal Ministry of Works is a juristic personality against whom an action can lie.
ISSUE 2:
Whether the learned trial judge was right in holding the 1st and 3rd defendants liable for the alleged negligent act of the second defendant a non-juristic personality.”
The Respondents on their part also formulated two issues for determination of the appeal. They are:
“ISSUE ONE:
Whether the Appellants can raise a fresh point which was not canvassed before the trial court for the first time at the appellate court without first seeking and obtaining the leave of the appellate court.
ISSUE TWO:
Whether the Plaintiffs/Respondents’ suit at the trial court is maintainable and/or can succeed against the 1st and 3rd defendants/Appellants with or without the joinder of the 2nd Defendant/Appellant.”
In arguing the Appeal, the learned Counsel to the Appellants, J. O. Obule Esq. Assistant Chief State Counsel adopted and relied on his brief of argument dated 15/3/10 filed the same day and his reply brief dated 22/12/10 filed on 28/1/11 in urging us to allow the appeal and set aside the judgment of the lower court.
In arguing the appeal, it was submitted that the second defendant (The Federal Ministry of Works) is a non-juristic person, a mere creation of the Federal Government for administrative convenience, which cannot sue or be sued in its own name, see EMECHETA v. OGUERI (1996) 5 NWLR (Pt. 447) 227 at 231, ratio 9; AGBOOLA v. SAIBU (1991) 2 NWLR (Pt. 175) 569 ratio 6, 576, Para. A-D, AGBONMAGBE BANK LTD. v. G.M.G.B. OLLIVANT LTD. (1961) 1 ALL NLR 116 and FAWEHINMI v. N.B.A. (No. 2) 1989 2 NWLR (Pt. 105) P.558.
On the appellants’ second issue, it was submitted that a juristic personality cannot be held liable for the act of a non-juristic entity, therefore that the 1st and 3rd Appellants cannot be held responsible for the wrong doing of the second Appellant, a non-juristic personality. It was argued that the trial court had no jurisdiction to entertain the action, see ATAGUBA & CO. v. GURA (NIG.) LTD. (2005) 8 NWLR (Part 927) Page 429 at 433 ratio 1 and GRAYSHOT ENT. LTD. v. MINISTER OF AGRICULTURE (2002) 9 NWLR (Pt. 771) Page 1 at Page 10 ratio 11. We were urged to allow the appeal and set aside the judgment of the trial court.
In response, the learned Counsel to the Respondents Ade Fajemiroye Esq. adopted and relied on the Respondents’ brief dated and filed on 15/11/10. On their first issue, it was submitted that the issue of the 2nd Appellant not being a juristic person was not raised in the trial court, by the parties or suo motu and that the first ground of appeal as contained at pages 82-83 challenging the jurisdiction of the Court is defective and incompetent.
It was argued that the brief of argument is at variance with the ground of appeal in that in the Notice of Appeal, the Appellants referred to the Federal Ministry of Works as the 3rd Appellant whereas the Ministry was sued as 2nd defendant and referred to as such in the judgment of the court. It was re-emphasized that even if the grounds of appeal tally with the issues formulated, the issue of non-juristic personality of the 2nd Appellant raised for the first time at the appellate court is incompetent as the leave of court is required, see EDISON & 2 ORS v. NATIONAL ECONOMIC RECONSTRUCTION FUND (NERFUND) (2009) 8 NWLR (PART 1144) PAGE 535 at 565 G-H, UDZA UOR & 2 ORS v. PAUL LOCO (1988) 2 NWLR (Part 77) 430 at 431 PARA. G, and ACHINEKU v. ISHAGBA (1988) 4 NWLR (Pt. 89) 411 at 414 Ratio 12. We were urged to dismiss the appeal on this issue.
On their second issue, it was submitted that the 2nd defendant (the Federal Ministry of Works) is indeed a legal personality and could sue and be sued by virtue of the combined effect of Sections 169 and 318 of the 1999 Constitution of the Federal Republic of Nigeria.
Further, that since the second defendant was created by the Federal Government and recognized by the Constitution, then it is a juristic personality that could sue and be sued as an Agent of the Government of the Federation.
Without conceding, it was argued that assuming the 2nd Appellant is not a juristic person the suit could be maintained against the 1st and 3rd Appellants. It was argued by both parties that the 2nd Appellant is an Agent of the 1st Appellant whereby both the principal and its agent were sued, made the 1st Appellant a disclosed principal whose agent need not be joined in a suit before a plaintiff could successfully maintain an action, see, UBA PLC v. OGUNDOKUN (2009) 6 NWLR (Pt. 1138) 450 at 456, ratio 4; NIGER PROGRESS LTD. v. N.E.L. CORPORATION, (1989) 3 NWLR (Pt. 107) 68 and LEVENTIS TECHNICAL LTD v. PETROJESSICA ENT. LTD. (1992) 3 NWLR (Pt. 224) 459. It was argued that the 3rd Appellant could singularly be sued in respect of the civil actions of the Government of the Federation as the Chief Law Officer of the Federal Republic of Nigeria, and could commence and defend actions for and on behalf of the government; see NDOMA EGBA v. GOVERNMENT OF CROSS RIVER STATE (1991) 4 NWLR (Pt. 188) 773 at 788, paras F-G. Also, ADEWUNMI v. OGUNBOWALE (1983) 4 NCLR 667 and ATTORNEY GENERAL OF THE FEDERATION v. ATTORNEY GENERAL IMO STATE (1983) 4 NCLR 178. It was submitted that the Notice of Appeal was filed on behalf of all the Appellants and therefore the judgment of the lower court is binding on all the parties.
In the Appellants’ reply brief it was submitted that reference to the Federal Ministry of Works as the 3rd defendant instead of 2nd defendant in the Notice of Appeal is not material as the parties were referred to in the correct names in the Appellants’ brief of argument and that the Respondents were not misled by the reference. It was termed an error; we were urged not to penalize the Appellant for such minor error as it did not occasion any miscarriage of justice. We were urged to do substantial justice.
It was submitted that the Apex Court has provided exceptions to the general rule that no party is allowed to raise an issue not decided upon by the trial court, raised for the first time on appeal, reliance was placed on the case of BENSON OBIAKOR v. STATE (2002) 10 NWLR (Pt. 776) Page 612 at 620 Ratio 11, LAWRENCE v. ATTORNEY-GENERAL OF THE FEDERATION (2008) 6 NWLR (Pt. 1084) Page 453 Page 462 ratio 13, ANSA v. RTPCN (2008) 7 NWLR (Pt. 1086) Page 421 at 431 ration 17 and CHRISTABEN GROUP LTD. v. ONI (2008) 11 NWLR (Pt. 1097) Page 82.
We were urged to discountenance the Respondents’ argument on issue one.
On issue two, it was the contention of the learned Counsel to the Appellants’ that the head of the Civil Service which is a creation of law and not a Ministry should have been the proper person to sue, since also the Constitution created the Civil Service and listed the Ministry as part of the Civil Service.
Further, that a non-juristic personality cannot act as an agent to a juristic personality because the non-juristic person is incapable of performing any act. It was submitted that the 1st and 3rd Respondents cannot be held responsible for the acts of diverting flood water to the premises of the Respondents, (negligence) of a non-juristic person. We were once more urged to allow the appeal.
The Appellants’ second issue tallies with the Respondents’ second issue. I would resolve the issues as formulated and argued by the Appellants as well as the Respondents’ first issue not covered in the issues raised by the Appellants; I would start with the Respondents’ first issue as it touches on the jurisdiction of the court, that is:
“Whether the Appellants can raise a fresh point which was not canvassed before the trial court for the first time at the appellate court without first seeking and obtaining the leave of the appellate court.”
It had been argued on behalf of the Respondents that the issue of the 2nd Respondent not being a juristic person was not raised in the lower court but raised for the first time in this court without the leave of court and that ground one of the notice of appeal is incompetent. It is trite that there are exceptions to the general rule that the leave of court must be sought and obtained before raising an issue not decided by the lower court. The exceptions are where the new issue(s) borders on jurisdiction, leave need not be obtained. It is true that the issue of non-juristic personality of the second Appellant (Federal Ministry of Works) was not raised in the lower court, but, this was raised in the first ground of appeal which challenged the jurisdiction of the court. The issue of jurisdiction is very fundamental and touches on the competence of a court or tribunal to adjudicate on the suit before the court or tribunal, see, STATE v. ONOGORUWA (1992) 2 NWLR (Pt. 221) 33; GALADIMA v. TAMBAI (2000) 11 NWLR (Pt. 677) 1; G & C LINES v. OLALEYE (2000) 10 NWLR (Pt. 676) 613. It is the law that the issue of jurisdiction is a threshold issue which could be raised at any stage of a proceeding and by any party even in the Supreme Court for the first time, no leave of court is required. It could be raised by the court suo motu whether or not the parties raised it. See, MATARI v. DANGALADIMA (1993) 3 NWLR (Pt. 281) 266; STATE v. ONOGORUWA (1992) 2 NWLR (Pt. 221) 33 and LAWRENCE v. A-G FEDERATION (Supra).
In the present case the challenge of the lower court’s jurisdiction was raised in ground one of the Notice of Appeal, in which the second Appellant (even though described as 3rd) Federal Ministry of Works was said not to be a juristic person. It is clearly one of the grounds of appeal with its particulars, thus a competent ground of appeal. This issue is therefore resolved against the Respondents in favour of the Appellants.
The Respondents also argued that the Appellants’ brief of argument is at variance with their Notice of appeal in that the Appellants in their Notice of Appeal referred to the Federal Ministry of Works as 3rd Appellant whereas they were sued as 2nd defendant and referred to as such in the judgment of the lower court. In their brief, the Federal Ministry of Works was referred to as the 2nd defendant and was reflected as such on the face of the brief. The mix up of referring to the Federal Ministry of Works as 2nd and 3rd defendant in the lower court and in the Notice of Appeal respectfully was obviously an error that does not touch on the substance of the case before the court. As rightly argued by the learned Counsel, the Respondents were not misled by the confusion or error, the Federal Ministry of Works was specifically mentioned on each occasion, whether as 2nd or 3rd Appellant it makes no difference. In the interest of justice, I would overlook same and discountenance the submissions of the learned Counsel to the Respondents.
On the Appellants’ issue one, whether the Ministry of Works is a juristic personality, the Federal Government no doubt created the second defendant (Federal Ministry of Works) for administrative convenience. It cannot sue and be sued in its own name. It has a disclosed principal, the Federal Government of Nigeria that could be sued directly. Both parties in their arguments agreed that the second Appellant, Federal Ministry of Works is an agent of a disclosed principal, the Federal Government of Nigeria.
It is the law that generally, a non-juristic person cannot sue or be sued. The second Appellant herein was the 2nd defendant (Federal Ministry of Works) in the lower court and was sued in that capacity till the conclusion of the trial in the High Court. The second Appellant is an undisputed agent of the 1st Appellant and acted as such, in the construction of the Lagos Ibadan Expressway and Ibadan-Oyo-Ilorin Road dualization (under construction at the time the action was taken) through the Federal Road Maintenance Agency (FERMA) which was alleged to have caused the devastating flood to the properties of the Respondents as plaintiffs complained about, for which action was taken in the lower court. In other words, the 2nd Appellant at the time, acted as an agent to the 1st Appellant who is a disclosed principal, for a particular purpose of carrying out the construction work on the highway, it is, so as to say the act of the principal. In law it is as if it, was the principal that did what the agent did or omitted to do, in this case the omission being channeling the flood water elsewhere so as not to affect adversely the properties of the Respondents.
The common law rule is expressed in the maxim: Qui per alium
facit, per seipsam facere videtur which means; He who does an act through another is deemed in law to do it himself. For this reason, a person cannot escape legal liability merely because he has done what he did through an agent. The act of the first and second Appellants as alleged, of allowing or channeling flood water which caused devastating flood to the property of the Respondents is regarded as the act of the principal, the Federal Government of Nigeria, the 1st Appellant. See, AGBONMAGBE BANK LTD. v. GENERAL MANAGER G.B. OLLIVANT LTD. (1961) 1 ALL NLR 116. Also, LEVENTIS TECH. LTD. v. PETROJESSICA ENT. LTD. (1992) 2 NWLR (Pt. 224) P. 459 at 469 in which ALLIED TRADING CO. LTD. v. CBN LINE (1985) 2 NWLR (Pt. 5) 74 was relied upon and AGBOOLA v. SAIBU (supra).
“In AGBOOLA v. SAIBU (supra) at page 569, Paras. A-D, His Lordship Adio, J.C.A., then of this Court where the Federal Ministry of Science and Technology was a party held thus:
“The real position is that research institutes, like the 2nd Appellant, are established by orders made by the appropriate Minister under Section 1(1) of the National Science and Technology Act, 1980, No. 1 of 1980. Any Institute established under the provision of the section is according to Schedule 1 to the Act, a body corporate with perpetual succession and a common seal and may sue and is sued in its corporate name. Such an institute has power to acquire and hold property and any interest in land. Its governing board appoints employees other than the director who is appointed by the appropriate Minister. Therefore, an employee of an institute, like the Respondents, who is aggrieved by anything done or omitted to be done by the institute or its employee in relation to his employment may, if he so desires, sue the institute or its employee in question. There is nothing in the Act to the effect that the 3rd Appellant owned an institute established under section 1 of the said Act. The reasons given by the learned trial Judge, quoted above, for holding that the 3rd Appellant should be clothed with legal personality and with the power to sue and be sued can, therefore, not be sustained. The 3rd Appellant is not a juristic person that can sue or be sued. See AGBONMAGBE BANK LTD. v. GENERAL MANAGER, G.B. OLLIVANT LTD. (1961) 1 ALL N.L.R. 116; FAWEHINMI v. NBA (No. 2) (1989) 2 NWLR (Pt. 105) 558.”
(Underlined mine for emphasis.)
In sum, I hold that the 2nd Appellant, the Federal Ministry of Works is not a juristic person against whom an action can lie. The Appellants’ first issue is resolved in their favour.
On the Appellants’ second issue:
“Whether the learned trial judge was right in holding the 1st and 3rd defendants liable for the alleged negligent act of the second defendant a non-juristic personality.”
As I earlier stated in this judgment, the Appellants’ second issue is similar to the Respondents’ second issue. While the learned Counsel to the Appellants contended that the 1st and 3rd Appellants are juristic persons that cannot be held liable for the acts of a non-juristic personality, the learned counsel to the Respondents had argued that the second Appellant is a juristic personality and argued along those lines to which I have held otherwise. In his alternative argument, he argued that in this case both the agent and principal were sued but, that the agent with a disclosed principal need not be joined in a suit before a plaintiff could maintain an action, In course of resolving the Appellants’ first issue I dealt with the second issue, because they are interwoven or related.
I am of the humble view that since the second Appellant acted as an agent of the first Appellant and having held that it is as if it was the 1st Appellant that carried out the act complained about by the Respondents, the action would rightly succeed, with or without the second Appellant. As rightly argued by the learned Counsel to the Appellant, the appeal was filed on behalf of the Appellants and the judgment of the lower court would and is binding on the 1st and 3rd Respondents with or without the 2nd Appellant, the Federal Ministry of Works. This court in U.B.A. PLC v. OGUNDOKUN, (2009) 6 NWLR (Pt. 1138) 450 at 483-484 paragraphs G-A. His Lordship Adekeye, J.C.A. (as he then was) held thus:
“It is trite that an agent acting on behalf of a known and disclosed principal incurs no liability. This is because the act of the agent is the act of the principal. It was the principal who did or omitted to do what the agent did or omitted to do. The common law rule is expressed in Latin maxim qui facit per aluim facit per se, a sum facere indepur which means he who does an act through another is deemed in law to do it himself, An action against an agent in its private capacity for acts done on behalf of a known and disclosed principal is incompetent NIGER PROGRESS LTD v. N.E.L. CORPORATION (1989) 3 NWLR (Pt. 107) PAGE 68; LEVENTIS TECH. LTD v. PETROJESSICA ENT. LTD. (1992) 1 NWLR (Pt. 214) Pg. 459; FAITH ENTERPRISES LTD. v. B.A.S.F. (NIG) LTD. (2001) 8 NWLR (Pt. 714) Pg. 242; ESSANG v. AUREOL PLASTIC LTD. (2002) 17 NWLR (Pt. 795) Pg.155.”
(Underlining mine for emphasis.)
Contrary to the argument of the learned Counsel to the Appellants that the second Appellant not being a juristic personality the Court has no jurisdiction to entertain the action against the 2nd Appellant and cannot hold the 1st and 3rd Respondents liable for the negligent act of the 2nd Respondent. I agree and have held that the Court had no jurisdiction to entertain the suit against the second Appellant as defendant, supported by the above cited authorities. If it is the disclosed principal in the eye of the law that did what the agent (the second Appellant) did or omitted to do, obviously the principals the 1st and 3rd Respondents are and would be responsible for the actions or omissions of their agent the second Appellant. The 1st and 3rd Respondents as defendants in my humble view were rightly held liable for the negligent act of the 2nd defendant now Appellant.
The next question that arises is: the effect of the Respondents has plaintiffs, having sued the second Appellant as defendant and this Court having held that the second Appellant is a non-juristic person? The learned Counsel to the Appellants had argued that the second Appellant a non-juristic personality having been joined as a party, the Court had no jurisdiction to entertain the suit as it was incompetent. It is trite and a common principle of law that a misjoinder or non-joinder of a party cannot defeat a cause or matter. It is the law that a misjoinder or nonjoinder (whatever the case may be) of a party will not be fatal to the proceedings. The Court would deal with the matter in controversy regarding the rights and interests of the parties with the proper parties before it, in this case the 1st and 3rd Appellants would not be exonerated because the 2nd Appellant ought not to have been made a party, see, AYANKOYA v. OLUKOYA (1996) 4 NWLR (Pt. 440) 1; CROSS RIVER STATE NEWSPAPERS CORPORATION v. MR. J. L. ONI & ORS. (1995) 1 SCNJ 218; IFEANYICHUKWU (OSONDU) LTD. v. SOLEH BONEH LTD. (2000) 5 NWLR (Pt. 656) 322; (2000) 3 SC 42; (2000) ALL NLR 604; NGIGE v. AKUNYILI & ORS (2011) LPELR 9194. In sum, the inclusion of the second Appellant is not fatal to the case of the Respondents as plaintiffs.
The appropriate order regarding the 2nd Appellant wrongly joined is an order striking out the second appellant’s name from this appeal, which does not in any way affect the judgment in respect of the 1st and 3rd Appellants. In the present circumstances, the 2nd Appellant, the Federal Ministry of Works was wrongly joined, and is struck out from this appeal not being a juristic personality. The second issue is resolved in favour of the Respondents.
In the final analysis, the appeal succeeds in part, that is to the extent that the second Appellant is not a juristic personality and ought not to have been made a party and that the 1st and 3rd Appellants were rightly held liable for the alleged negligent act of the 2nd Appellant.
The decision of the learned trial judge of the Federal High Court, sitting at Ibadan in Suit No. FHC/IB/CS/54/05 delivered on 21/12/07 is affirmed in respect of the 1st and 3rd Appellants as defendants. Parties to bear their respective costs.
ADAMU JAURO, J.C.A.: I had the advantage of reading in draft the lucid judgment of my learned brother, C. N. Uwa, JCA, just delivered.
I am in complete agreement with the reasoning and conclusion contained in the said judgment and adopt same as mine. The appeal succeeds in part to the extent that the second appellant is not a juristic personality and ought not to have been made a party. The decision of the lower court in Suit No. FHC/IB/CS/54/05 delivered on 21st December, 2007 is hereby affirmed in respect of the 1st and 3rd appellants as defendants.
There will be no order as to costs.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my Lord Chidi Nwaoma Uwa J.C.A. and I adopt the judgment as mine.
Appearances
J. O. Obule Esq. Assistant Chief State CounselFor Appellant
AND
Ade Fajemiroye Esq.For Respondent
