REGISTERED TRUSTEES OF IROYIN AYO BAPTIST CHURCH v. MR. GBOYEGA SANUSI & ANOR
(2018)LCN/11833(CA)
(2019) LPELR-47720(CA)
In The Court of Appeal of Nigeria
On Friday, the 31st day of May, 2019
CA/IL/110/2018
RATIO
COURT AND PROCEDURE: WHETHER A NON-JURISTIC PERSON CAN SUE
“It is a fundamental principle of law that a non juristic person cannot sue or be sued before a Court of law, and where a non juristic person is made a party, the action is rendered incompetent and liable to be struck out, for the Court would have no jurisdiction to entertain it. See Shell Petroleum Development Co. & Anor. Vs. Daniel Pessu (2014) LPELR-23325 (CA), T.M. Lewin (Nig.) Ltd. Vs. Smartmark Ltd (supra) and Osondu & Ors. V. Ngonadi (2016) LPELR-41528 (CA) and Esiri & Ors. Vs. Registered Trustees of Anointed Bible Minitries & Anor. (2018) LPELR- 44541 (CA) and the case of T. M. Lewin (Nig.) Ltd Vs. Smartmark Ltd (2017) LPELR-43136 (CA), where this Court, per Geargewill J.C.A.” PER BALKISU BELLO ALIYU, J.C.A.
JUSTICE
IBRAHIM MOHAMMED MUSA SAULAWA justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU justice of The Court of Appeal of Nigeria
Between
REGISTERED TRUSTEES OF IROYIN AYO BAPTIST CHURCHAppellant(s)
AND
1. MR. GBOYEGA SANUSI
2. ALHAJI FUNSHO AGAKARespondent(s)
BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment):
The 1st Respondent is the claimant in Suit No: KWS/224/2017 before the Kwara State High Court sitting at Ilorin, presided over by Hon. justice T. S. Umar. The claim before the lower Court is against the Appellant and the 2nd Respondent, for a declaration that the claimant is the owner of a parcel of land measuring 100ft X 200ft lying and situate at Odota Area, opposite Airport Ilorin, Kwara State. He also prayed the lower Court to declare the Appellant and the 2nd Respondent as trespassers to the claimed land.
The Appellant (2nd defendant) entered a conditional appearance and filed his statement of defence in which it raised a preliminary objection challenging the competence of the 1st Respondents suit. Upon being served with the Appellants statement of defence, the 1st Respondent filed a motion on notice dated 7th February 2018 (contained at pages 104 to 118 of the record of appeal) by which he prayed the trial Court for:
1. Leave allowing Claimant/applicant to bring this application
2. An order allowing the claimant/applicant to substitute the 2nddefendant/respondent herein i.e. Registered Trustee of Iroyin Ayo Baptist Church with Registered Trustee of Nigerian Baptist Convention.
3. An order allowing the Claimant/applicant to amend his statement of claim and other accompanying processes in line with the schedule of proposed amendment herein contained
4. And for such order(s) or further order(s) as the Court may deem fit to order in the circumstance.
The application was predicated on eleven (11) grounds reproduced below:
1. Pleadings are still on, parties are still exchanging processes
2. The claimant/applicant sued both defendants/respondents based on the knowledge the claimant/applicant has on both the defendants/respondents.
3. The 2nd defendant respondent entered an appearance and filed its statement of defence on 18/9/17 with notice of preliminary objection incorporated therein.
4. The 2nd defendant/respondent statement of defence was deemed properly filed and served on 2nd November 2017
5. The 2nd defendant/respondent in her statement of defence pleaded Certificate of Incorporation of Nigerian Baptist Convention under which she was founded and established.
6. The 2nd defendant/respondent pleaded further to have the consent and authority and power of the Nigerian Baptist Convention to deal in and acquire land via a letter of authority dated 4th day of August 2003.
7. The 2nd defendant/respondent having disclosed her principal, it hooves on the claimant/applicant to sue the disclosed principal i.e. The Registered Trustee of Nigerian Baptist Convention.
8. The Nigerian Baptist Convention by her certificate of incorporation becomes a legal entity that can sue and be sued.
9. The amendment sought shall lead to the proper determination of real questions and issues in controversy as affecting proper parties in this proceeding.
10. None of the defendants/respondents will be prejudiced if this application is granted but the claimant/applicant will suffer prejudice if refused
11. Dragging proper parties before the Court is sine quo non to proper determination of issue in dispute and will prevent any bar from execution of any judgment in case the claimant succeeds. A copy of schedule of the proposed amendment is affixed to the motion.
12. It is in the interest of justice to grant this application.
The application was supported by affidavits and documentary exhibits. The Appellant objected to the application in terms of the counter affidavit contained at pages 119 to 120 of the record of appeal. Its grouse against the application was mainly that the 1st Respondent had long been served with its statement of defence in which it had raised objection to the competence of his suit, and that one of the grounds of its objection was that the Appellant sued as the 2nd defendant was not a juristic person and as such it cannot be sued. The Appellant further stated in its counter affidavit that the 1st Respondent had admitted to this fact and therefore no amendment can cure or make a non-juristic person to be a jurist person. The Appellant argued in paragraph 12 of the counter affidavit that its name ought to have been struck out by the lower Court.
In his considered ruling delivered on the 12th July 2018, the learned trial Judge overruled the objection of the Appellant, and held that:
The proper parties must be before the Court before any Court of law can exercise its jurisdiction over the party. The applicant in this case having realized by the statement of defence filed by the 2nd defendant that he has sued the 2nd defendant/respondent in a wrong name, I am of the view that he can properly bring this application to amend the name. Not suing the 2nd defendant/respondent in the proper name was a misnomer which can be corrected. It is trite that a party can remedy his error even after a preliminary objection has been filed.
The lower Court then ordered the amendment of the name of the Appellant to read Registered Trustee Of Nigeria Baptist Convention. The Appellant was aggrieved with the ruling of the trial Court and filed its notice of appeal on the 25th July 2018, relying on eight (8) grounds of appeal. The record of appeal was transmitted on 11th September 2018 but deemed properly transmitted on 11th October 2018.
The Appellants brief of argument settled by Oludare W. Akanbi Esq. was filed on 23rd October 2018, in which the learned Counsel formulated a sole issue for the determination of this appeal, thus:
Whether the trial Court was right when it refused to strike out the name of the Appellant on the ground that the name of a non juristic person can be corrected by an Application for substitution and amendment. (Grounds 1, 2, 3, 4, 5, and 8)
The Appellant did not formulate any issue for determination from its grounds of appeal Nos. 6 and 7, in which it complained about the illiterate jurat contained in the affidavit that was not signed and that the affidavit in support of the application was incompetent. It is trite law that where no issue is formulated from any ground of appeal, that ground of appeal is deemed abandoned and must be struck out. See Adelekan V. Ecu-Line NV (2006) 12 NWLR (pt. 993) 33 at 49 and Zanen Verstoep & Co. NIg. Ltd Vs. Four Star Ind. Ltd (2016) LPELR-41258 (CA). Therefore, the Appellants grounds of appeal numbers 6 and 7 are deemed abandoned and they are hereby struck out.
The 1st Respondents brief of argument was settled by Raheem Ismaila Esq. and filed on the 11th March 2019, but deemed properly filed and served on 12th March 2019. He formulated two issues for the determination of this appeal as follows:
1. Whether the trial Court was right to have exercised its discretion in favour of the 1st Respondent (in) granting his application for substitution and amendment. (Grounds 1, 2, 3, 4, 5 and 8).
2. Whether the primary duty of the trial Court was/is not to do substantial justice. (Grounds 1, 2, 3, 4, 5 and 8)
The 2nd Respondents brief of argument settled by Taofiq Abubakar Esq. was filed on the 3rd December 2018 and he submitted a sole issue for the determination of this appeal as follows:
Was the lower Courts Ruling on the Application which resulted in this appeal not wrong? If yes, what would have been the proper order to make in such instance? (Distilled from grounds 1, 2, 3, 4, 5 and 8)
On the 25th March 2019, the appeal was called for hearing and counsel adopted their respective briefs of arguments. The learned Appellants counsel urged the Court to allow the appeal while the Respondents learned counsel urged us to dismiss the appeal.
APPELLANTS ARGUMENT
In arguing the Appellants sole issue for determination, Mr. Akanbi submitted that parties are in agreement on the fact that the Appellant is not a juristic person; having not been sued in its registered corporate name. See the provisions of Section 596 of the Companies and Allied Matters Act, 1990 (CAMA). He argued that the implication of suing a non-juristic person is that the suit is not properly constituted and the Court ought to strike out such non-juristic person. It was further submitted that no application for amendment and/or substitution can be used to substitute a non-juristic person, and reliance was placed on the case of Reg. Trustees of Airline Operators of Nig. Vs. NAMA (2015) ALL FWLR (pt. 762) 1786-1783 (SC) where it was held, inter alia, that if the enabling law provides for a particular name by way of juristic personality, a party must sue or be sued in that name. The reason being that, law suits are for the determination of legal rights and obligations, and only natural and juristic persons in whom such rights and obligation are vested are capable of being proper parties to law suits before the Court.
Learned counsel also relied onIdanre LG Vs. Govt. of Ondo State (2010) 14 NWLR (pt. 1214) 509 at 525 and Njoku Vs. UAC Foods (1999) 12 NWLR (pt. 632) 557 at 565, both to the effect that an amendment for the substitution of a non juristic person with a juristic person is not allowed because there is nothing to substitute. It was further submitted upon the authorities supra, that the trial Court was wrong when it substituted the Appellant with the Registered Trustees of Nigeria Baptist Convention in the guise of a misnomer. That an amendment will only be allowed where a juristic or natural person is sued and the name is incorrectly and incompletely written and this is not the case in this appeal. See Idanre L.G. Vs. Govt. of Ondo State (supra) and U.U.U. Vs. Isuofia (2011) 6 NWLR (pt. 1243) 394 at 414 D-F.
The Court is urged to note that nowhere in the affidavit in support of the application of the 1st Respondent did he state that the Appellant was sued in the wrong name, instead, the 1st Respondent had actually admitted, in paragraphs 2 (h-k) (at page 107 of the record of appeal) of his affidavit that the Appellant is not a juristic person, which means that the proper party was not before the lower Court. This means that the decision of the lower Court contravened the admission of the 1st Respondent and is therefore perverse having ignored the facts and the evidence before it. The Appellants learned Counsel urged us to so hold and to set aside the ruling of the lower court, which has no foundation. He placed further reliance on the cases of Udengwu Vs. Uzuegbu (2003) 13 NWLR (pt. 836) 136 at 152, Obike Intl Vs. Ayi Teletronics Ltd (2005) 15 NWLR (pt. 948) 362 at 374.
It was further submitted for the Appellant that the learned trial Judge was in grave error when he failed to consider and follow the ratio decidendi of superior Courts decisions in Idanre L. G. Vs. Govt of Ondo State (supra) and Obike Intl Vs. Ayi Teltronics Ltd (supra), which he was bound to, under the principle of stare decisis; and this failure led to a miscarriage of justice, and we were urged to so hold. On the learned trial Judges holding that the ignorance of counsel cannot be visited on his client, the learned counsel argued that though it is true that it was the 1st Respondents counsel who filed the originating processes, but the issue of proper party to sue is purely an issue of law, and the trend now is caveat client, because ignorance of the law is not an excuse for any man including counsel.
In support of this argument he referred to and relied on the decisions of this Court in Omozeghian Vs. Adjarho (2006) 4 NWLR (pt. 969) 33 at 59, Pfizer Incorporated Vs. Mohammed (2013) 16 NWLR (pt. 1379) 155 at 176, Ibrahim Vs. The Chairman, Kachia L.G. (1998) 4 NWLR (pt. 546) 471, Trans Nab Ltd. Vs. Joseph (1997) 5 NWLR (pt. 504) 176 at 197 and Akanbi Vs. Alao (1989) 3 NWLR (pt. 108) 118 at 143 and further submitted that the 1st Respondent must be bound by the action of his counsel in this case. The Court was urged to resolve the lone issue in favour of the Appellant, allow this appeal, set aside the ruling of the lower Court and to strike out the Appellant from the 1st Respondents suit before the lower Court.
1ST RESPONDENTS SUBMISSION
Learned Counsel to the 1st Respondent, Raheem Ibrahim Esq. narrated the background facts leading to this appeal and submitted that the 1st Respondent honestly believed that the name in which he sued the Appellant was its registered name because he had earlier written a letter to the Appellant in that name. That letter was actually attached to the originating processes commencing the action before the lower Court and contained at page 15 of the record of appeal. It was only after the Appellant had filed its statement of defence on which it attached its certificate of incorporation showing its registered name that the 1st Respondent filed his application, pursuant to Order 14 Rule 5 of the Kwara State Civil Procedure Rules, to change the Appellants name to its registered name.
In arguing the 1st Respondents issue one, the learned counsel submitted that the trial Court relied on its rules of procedure to grant his application; and that was purely based on the discretional powers of the lower Court. He argued that the exercise of the lower Courts discretion is not ordinarily appealable unless it can be established that the use of discretion was irrational, which is not the case in the circumstances of this appeal. He relied on the case of Commissioner For Education Vs. Amadi (2013) 2 SCNJ and MAERSK Line Vs. Addide Investment Ltd (2002) 11 NWLR (pt. 778) 317, to submit that the Appellant by this appeal is only making a mountain out of a mole hill against the trial Courts exercise of its discretion in favour of the 1st Respondent, especially as the 1st Respondent had placed before the trial Court enough materials upon which it exercised its discretion. He therefore urged the Court to so hold and resolve issue one in favour of the 1st Respondent.
The 1st Respondents issue two is whether the primary duty of the trial Court was not to do substantial justice. The learned counsel answered this issue in the affirmative and urged the Court to so hold. He recommended to the Court the cases of British-American Insurance Company Ltd Vs. Edema Sillo (1993) 2 NWLR (pt. 277) 570 at 637 and Okonjo Vs. Odje (1985) 10 SC 267 to support his argument and in urging us to resolve issue two in favour of the 1st Respondent.
In response to the argument of the Appellants learned counsel, Mr. Ismaila submitted that all the cases cited and relied upon by the Appellant were decided on facts that were different to the facts of this case, and therefore irrelevant. To support this contention, he relied on the decision in the case of Dankwambo Vs. Abubakar (2015) 10 SCNJ 227 at 232 where it was held that a case is an authority for facts over which it was decided. In conclusion, learned counsel urged the Court to dismiss the appeal in its entirety so as to enable the parties to return to the lower Court and trash out the real issue in controversy between them.
2ND RESPONDENTS SUBMISSIONS
In arguing the sole issue he formulated for the determination of this appeal, the 2nd Respondents learned counsel submitted that the exercise of the lower Courts discretion in granting the application of the 1st Respondent was not made judiciously and judicially. He defined judicial to mean that the discretion must not be capricious and must be for a reason connected with the case while judicious means that the exercise of the discretion must be based on sound judgment marked wisdom and good sense. He argued that the two conditions must co-exist before a Court can properly exercise its discretion in a matter, and that in this case, these two conditions were not present before the learned trial Judge exercised his discretion in favour of the 1st Respondent. To support this argument, learned counsel referred the Court to the decisions in Adekanmbi Vs. Jangbon (2007) ALL FWLR (pt. 383) 152 at 153, Menakaya Vs. Menakaya (2001) 9 SCNJ 33, Ehinlanwo Vs. Oke (2008) ALL FWLR (pt. 442) 1007 at 1028-1030 and Olumegbon Vs. Kareem (2002) 34 WRN 1 at 8, among others.
It was further submitted that the application of the 1st Respondent before the lower Court was made in bad faith, that is, after the Appellant had filed its statement of defence in which it raised the objection to the suit, thus overreaching the Appellants objection. It was also argued that while the Appellate Court would not ordinarily interfere with the lower Courts exercise of its discretion, but such interference becomes necessary where the discretion was not exercised judiciously and judicially as had happened in this case. The Court was therefore urged to set aside the decision of the trial Court.
The learned counsel further referred the Court to the writ of summons filed by the 1st Respondent commencing his suit before the trial Court; and submitted that having been issued in the wrong name of the Appellant, it was null and void. This means that the trial Courts jurisdiction on the matter has been afflicted by the defective writ and it has no basis to proceed with the matter. He relied on Kida Vs. Ogunmola (2006) 10-11 SCM 36 in support. In concluding his submissions, he adopted all the arguments and the authorities cited by the Appellant in the Appellants brief of argument, and urged the Court to resolve the 2nd Respondents sole issue in the affirmative and to allow this appeal.
In the Appellants reply brief, its learned counsel argued that the provisions of Order 14 Rule 5 of the Kwara State High Court (Civil Procedure) Rules relied upon by the 1st Respondent in his brief is not applicable to the issue at hand and cannot help the 1st Respondents case. This is because the said rule of Court relate to suing the wrong defendant or suing in the wrong name, but does not relate to the situation where a non juristic person is sued, which is fatal to the case, and the trial Courts only option was to strike out the name of the non-juristic person. It was further argued that the case of Owners Vs. Insurance (supra) cited by the 1st Respondent only show that rules of Court are subsidiary to statutes, and in this case, Kwara State Rules of Civil Procedure if in conflict with the provisions of CAMA, the latter will prevail.
It was also the submission of the learned Appellants counsel that the case of MAERSK Line Vs. Addie Investment Ltd (supra) relied upon by the 1st Respondent is distinguishable from this case because the issue in that case was misnomer which is different from the Appellant not being a juristic person in this case. He further argued that the issue of suing a non-juristic person is not an issue of technicality but an issue of law that goes to the jurisdiction and root of the case. See Obike Vs. Intl Ltd Vs. Ayi Teletronics Ltd (supra). In conclusion, the learned counsel for the Appellant submitted that the law is trite that the Court should not slaughter the law just because it wants to do justice because following the law itself is justice. He urged the Court to so hold on the authority in the cases of First Bank & Anor. Vs. Maiwada (2012) 9 SCM 14 at 31 and Mako Vs. Umor (2010) 8 NWLR (pt. 1195) 82 at 107), and to allow this appeal.
DETERMINATION OF THE APPEAL
The issues raised by the parties in their respective briefs of arguments are similar in con, raising the question whether the trial Court was right to grant the application of the 1st Respondent. Therefore, in determining this appeal, I adopt the lone issue submitted by the Appellant; that is, Whether the trial Court was right when it refused to strike out the name of the Appellant on the ground that the name of a non juristic person can be corrected by an application for substitution and amendment. The major grouse of the Appellant, and indeed the gist of the Appellants learned counsel submissions is the lower Courts granting of the 1st Respondent leave to amend/substitute it (Appellant) with the Registered Trustees of Nigeria Baptist Convention, which is the registered name under the Companies And Allied Matters Act, (CAMA). It was contended that since the Appellant is not a juristic person known to law, the trial Court ought to have struck out its name from the suit of the 1st Respondent because a non-juristic person cannot be substituted with juristic person.
At this juncture, it is apt to remind us what a juristic personality in the eyes of law is. A juristic persona as has been severally defined by this Court and the Apex Court to be a natural person, that is, a human being of requisite capacity or an entity created by law, which includes an incorporated body or a special artificial being created by legislation and vested with capacity to sue and be sued. See PPMC Ltd Vs. Akinyemi & Anor. (2018) LPELR-44849 (CA), Onyuike Vs. The People of Lagos State & Ors. (2013) LPELR-24809 (CA) and Kwage Vs. Upper Sharia Court Gwandu & Ors. (2017) LPELR- 42508 (CA).
It is a fundamental principle of law that a non juristic person cannot sue or be sued before a Court of law, and where a non juristic person is made a party, the action is rendered incompetent and liable to be struck out, for the Court would have no jurisdiction to entertain it. See Shell Petroleum Development Co. & Anor. Vs. Daniel Pessu (2014) LPELR-23325 (CA), T.M. Lewin (Nig.) Ltd. Vs. Smartmark Ltd (supra) and Osondu & Ors. V. Ngonadi (2016) LPELR-41528 (CA) and Esiri & Ors. Vs. Registered Trustees of Anointed Bible Minitries & Anor. (2018) LPELR- 44541 (CA) and the case of T. M. Lewin (Nig.) Ltd Vs. Smartmark Ltd (2017) LPELR-43136 (CA), where this Court, per Geargewill J.C.A., held that:
Since in law there is no place for filing of live Court processes including a notice of appeal in the name of a non-juristic person and thus every live process in Court must be strictly between natural or juristic persons. Indeed and in truth, in law, this Court has no jurisdiction to entertain an appeal either initiated by or brought against a non-juristic person.
In this appeal, the record of appeal shows that the learned trial judge held in his ruling, contained at pages 170 to 173, (at page 172) thus:
On the Application, the position of the law is that an action could only be maintained against the defendant in its registered name Registered Trustees of Nigeria Baptist Convention. The issue was comprehensively addressed by the Court of Appeal in Zain Nigeria Limited V. Alhaji Mohammed Kawu Ilorin (2012) LPELR-9249 (CA). The law is that for an action to be maintained against any corporate entity it must be in its registered name. It is the exact name of a company registered under CAMA that should be used if it is suing or been (sic) sued. (Underlining supplied for emphasis).
It is clear that the learned trial Judge had appreciated the position of the law to the effect that a non-juristic person cannot be sued as a party before the Court. He had also appreciated that it is only when proper parties, that is, persons with the legal capacity to sue and be sued are before the Court, that it can exercise its jurisdiction to determine the matter in dispute. However, though it was clear that the Appellant sued as the 2nd defendant was not a juristic person, still the learned trial Judge held that
”..I am of the view that he can properly bring an application to amend the name. Not suing the 2nd defendant/respondent in the proper name was a misnomer which can be corrected.
The question that arises, which indeed is the very foundation of this appeal is, was the learned trial Judge correct to have held the view that the name of the Appellant (a non juristic person) is a misnomer which can be amended or substituted with a juristic person by an application for amendment.
The Appellants learned Counsel had referred to and relied on the decisions in Registered Trustees of the Airline Operators of Nigeria Vs. NAMA (supra) and Idanre Local Government Vs. Governor of Ondo State (supra), among others.
In Idanres case, the original plaintiffs included Oba Ataiyese Adesida IV of Akureland, who sued on behalf of the entire people of Akureland as the 1st Plaintiff. Upon his death, the other plaintiffs filed an application for substitution of the deceased 1st plaintiff with his title, the Deji of Akureland, and the trial Court granted the application, substituting the deceased 1st plaintiff with his title. Consequently, the originating processes were accordingly amended making the Deji of Akure land the 1st Plaintiff in the suit. After pleadings were filed and exchanged, the defendants raised objection before the trial Court challenging the competence of the suit on the ground (among others) that the Deji of Akureland was not a juristic person.
In its ruling the trial Court agreed (just as in this case) that indeed, the Deji of Akureland was not a juristic personality; but instead of striking out the name Deji of Akureland as the plaintiff, the trial Court suo moto, (without any further application for amendment from the plaintiffs), ordered the name of the present holder of the title of Deji of Akureland to be added to the suit and the processes were accordingly amended.
On Appeal, this Court, per Augie JCA held inter alia, that:
At the end of it all, when the lower Court granted the application to substitute the Deji Of Akureland as the 1st plaintiff, it inadvertently substituted a juristic person with a non-juristic person, which is not a case of misnomer that can be cured by an amendment. The trial Court should have struck out the 1st plaintiff from the action. (Underlining supplied).
Nevertheless, the Court still declined to set aside the ruling of the trial Court mainly because there were other proper plaintiffs in the suit who could maintain the action. But the principle of the law remains that a non-juristic person cannot be substituted with a juristic person because there is nothing to substitute. See also the case of Maersk Line & Anor. Vs. Addide Investment Ltd & Anor (supra), where Supreme Court per Per OGUNDARE, J.S.C (Pp. 30-31, paras. F-B) held inter alia that: naming a non-juristic person as a defendant is not a misnomer and cannot be amended to substitute a juristic person.”
Furthermore, I find the decision of this Court in Njoku Vs. UAC Foods (1999) LPELR- 13014 (CA), to be most apposite to this appeal because the facts in that case are similar to the facts herein. In that case, the Appellant instituted an action against the United African Company Foods, which was not a juristic person. The originating processes were served on the UAC Nigeria Plc. and it entered conditional appearance and filed a motion on notice challenging the competence of the suit on the ground that the defendant was not a juristic person. The Appellant in that case, just like the 1st Respondent in this appeal, filed a motion on notice seeking to amend his claim and to replace the non-juristic person sued as United African Company Foods with the juristic person UAC Nigeria Plc’. The trial Judge took the motion for the preliminary objection first and dismissed the suit. On appeal to this Court, Mohammed JCA (as he then was) held that:
An amendment for the substitution of a non-juristic person is not at all feasible and must be refused. There was nothing to substitute. The dominant judicial view is that when a Court is approached with a prayer for the amendment sought by the Appellant and it refused same, it proceeds not only to strike out the name of the non-existing party but also the suit in its entirety.
In view of all the authorities cited by the counsel and in this appeal and the above referred authorities, it is crystal clear that the learned trial Judge was in grave error in holding that the name of the Appellant, a non-juristic person can be amended and/or substituted through the application of the 1st Respondent. I am therefore in total agreement with the learned counsel for the Appellant that the learned trial Judge was wrong to have granted the application in which the non-existing Registered Trustee of Iroyin Ayo Baptist Church was substituted with the Registered Trustee of Nigeria Baptist Convention, a juristic person. I also agree and uphold the argument of the learned Appellants counsel that the ignorance of the 1st Respondent or his counsel as to the correct name of the person he intended to sue as argued by the 1st Respondents learned both at the lower Court and in this appeal, cannot be the basis or the excuse for the granting of his application in this case.
The learned trial Judge was also wrong to have held that the name of the Appellant sued as the 2nd defendant was a misnomer, because the law is trite that the name of an entity not in existence cannot be misnamed and so the issue of amendment will not arise. See Obike Intl Vs. Aji Electronics Ltd (2005) 15 NWLR (pt. 948) 362 (CA). It was not a case of misnomer and I so hold. The name of the Appellant ought to have been struck out from the suit by the learned trial Judge.
However where the non-juristic party is not the only party sued or suing in an action, the presence of the non-juristic person cannot render the suit incompetent. In that situation, only the name of the non-juristic party must be struck out while the other proper parties can sustain the suit. See Okonkwo & Anor. Vs. Ekwebi & Ors. (supra). In this case, the Appellant was sued as the 2nd defendant and the 2nd Respondent, (Alhaji Funsho Agaka) sued as the 1st defendant is a human being and therefore the claim of the 1st Respondent can be sustained against him alone.
In conclusion, I answer the lone issue in the negative, that is to say that the trial Court was not right when it refused to strike out the name of the Appellant on the ground that its name was a misnomer, which could be corrected by an application for substitution and amendment; therefore the issue is hereby resolved in favour of the Appellant, with the resultant effect that the appeal succeeds and it is hereby allowed.
The ruling of the Kwara State High Court in Suit No: KWS/224/2017 delivered on the 12th July 2018 by Hon. justice T. S. Umar is hereby set aside. The name of the Appellant is hereby struck out from the suit NO: KWS/224/2017. The cost of N50, 000 is awarded to the Appellant against the Respondents.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Most instructively, the sole issue that calls for determination in the instant appeal, raises the very fundamental question thus:
Whether the trial Court was right when it refused to strike out the name of the Appellant, on the ground that the name of a non-juristic person can be corrected by an Application for substitution and amendment. (Grounds 1, 2, 3, 4, 5, and 8).
Curiously, of the eight grounds upon which the Notice of Appeal is predicated, grounds 6 and 7 have been inexplicably left out of the mainstream of the sole issue. It is worthy of note, that an issue is combination of facts and circumstances, inclusive of law on a particular point, which when determined, one way or the other affects the fate of the appeal. Contrariwise, a ground of appeal is any wrong decision, resolution, inference et al taken by the Court below which, in view of the Appellant, is erroneous. Thus, an error in law or on facts may aptly be raised by the Appellant as a ground. And one or more grounds may form an issue. However, it is not every ground that may be sufficient to raise an issue. See ONIFADE VS. OLAYIWOLA (1990) 7 NWLR (Pt. 161) 130 (1990) LPELR 2680 (SC) @ 18 19 paragraphs F A.
The doctrine is settled, that an appellate Court is cloaked with jurisdictional competence to only hear and determine an appeal on the basis of issue(s) raised on, or distilled from, competent grounds of appeal. Thus, any issue not raised on, or distilled from, grounds of appeal is incompetent and liable to be struck out. Likewise, any ground of appeal not married or related to an issue is deemed abandoned, and ought to be discountenanced. See MUSA SHA (JNR) VS. DA RAP KWAN (2000) 8 NWLR (Pt. 670) 685; (2000) LPELR 3031 (SC) @ 20 paragraph A.
Thus, in view of the fact that grounds 6 and 7 are deemed abandoned, they are both hereby struck out.
The 1st Respondents brief was settled by Raheem Ismaila Esq. On. 11/3/19. At pages 2 3 of the said brief, two issues have been couched:
1. Whether the trial Court was right to have exercised its discretion in favour of the 1st Respondent granting his application for substitution and amendment (Ground 1, 2, 3, 4, 5, and 8)
2. Whether the primary duty of the trial Court was/is not to do substantial justice (Ground 1, 2, 3, 4, 5 and 8).
Ironically, each of the two issues raised therein is indicated to have been distilled from grounds 1, 2, 3, 4, 5 and 8 of the Notice of Appeal. That ought not to be so. Indeed, what the 1st Respondent did has amounted to what is known in judisprudence as proliferation or proxility of issues, which is highly reprehensible. See MECHANIC VS. ONISESIN (1998) 2 NWLR (Pt. 538) 446; SALE VS. YAHYA (1998) 4 NWLR (Pt. 546) 462; IGBOIDU VS. IGBOIDU (1999) 1 NWLR (Pt.585) 27; ONWO VS. OKO (1996) 6 NWLR (Pt. 456) 584 @ 601.
In the case of CONSOLIDATED BREWERES PLC VS. AISNUERAN (2001) 15 NWLR (Pt. 736) 424 @ 448, this Court once aptly reiterated the trite doctrine:
Where on there is proliferation or prolixity of issues in a brief, the Court merely rebukes, reprimands or cautions counsel. The party does not suffer any serious sanction or penalty. Such issues will only be discountenanced, as they go to no issue. The Court will regard them as merely an excess load.
Interestingly, in CONSOLIDATED BREWERIES PLC VS. AISONUERAN (Supra), this Court merely reprimanded the Appellants counsel for the proliferation of issues, and did not deem it expedient to nullify the entire brief of argument but discountenanced the said proliferated issues.
Thus, the 1st Respondents two issues ought to be, and are both hereby discountenanced for being proliferative.
The 2nd Respondent in his own wisdom deemed it expedient to formulate a sole issue at page 3 of the brief thereof:
Was the lower Court Ruling on the Application which resulted to this Appeal not wrong? If yes, what would have been the order to make in such instance?
No law, to the best of my knowledge, restrains a respondent formulating issues for determination. However, the law is trite that a respondent, who has neither cross-appealed nor filed a Respondents Notice, is not entitled, at all, to formulate any issue outside the main stream of the grounds of the notice of appeal, thereby complaining against the decision of the Court below. See MASHUWARENG VS. ABDU (2003) 11 NWLR (Pt. 831) 403; NWANKWO VS. FRN (2003) 11 NWLR (Pt. 809) 1; ATANDA VS. AJANI (1989) 3 NWLR (Pt.111) 511; IGBINOBA VS. IGBINOBA (2003) 3 NWLR (Pt. 803) 39, IBATOR VS. BARAKURO (2007) 9 NWLR (Pt. 1040) 475.
Most particularly, in the later case of IBATOR VS. BARAKURO (Supra), the Apex Court aptly postulated:
The Respondents who have not filed any cross-appeal from which grounds of appeal these further issues could have arisen, or filed a Respondents Notice to affirm the Judgment of the Court below on grounds other than grounds by the Appellants, have not got an unbridled right or freedom of raising issues for determination which have no relevance to the grounds of appeal filed by the Appellants.
In a nutshell, any issue formulated by a Respondent completely alien to the grounds of the notice of appeal is deemed incompetent, and is ex debito to liable to be struck out. See OJEGBE VS. OMATSONE (1999) 6 NWLR (Pt. 608) 591; MV NORDICA & ORS VS. NPA (2015) LPELR 25944 (CA) Per Augie, JCA (as the Learned Lord then was) @ 12 paragraph D.
However, in the instant case, it is obvious from paragraph 4.0 of the brief in question, that the sole issue raised by the 2nd Respondent has been admirably married to, or distilled from grounds 1, 2, 3, 4, 5, and 8 of the notice of appeal.
In the instant case, the most vexed finding of the Court below resulting in the instant appeal is contained at page 173, paragraph 2, of the record, to the following conclusive effect:
I am of the view that the error in the name of the 2nd defendant/applicant is a mere misnomer which can be corrected by this application, see also Order 14 Rule 5 of the High Court Rules. Thereby grant the application for amendment as prayed. It should be noted that ignorance of counsel cannot be visited on the litigant. The Court cannot in its duty to do justice be inhibited by the ignorance or carelessness of counsel. See BELLO VS. A.G. OYO STATE (1986) SC 1 particularly at 69.
It is obvious from the circumstances of the instant case, that the Court below has grossly erred in its finding, to the conclusive effect that the error in the name of the 2nd defendant (who was a non-juristic person) is a mere misnomer which can be corrected by the application. Undoubtedly, filing an action against a non-juristic person goes beyond the realm of a mere irregularity or misnomer which can be cured by substitution. There cannot be a valid amendment of the nomenclature of the parties due to the fact that the original party suing or sued is a non-juristic person.
It is a fundamental doctrine, that only juristic person or party can sue and be sued in an action in a Court of law. In the instant case, the 2nd defendant not being a legal or juristic person, ought not to have been sued in the first place. And having already been sued, the 2nd defendant, not being a legal or juristic person, was not a competent party whose name can be amended. As aptly once held by this Court in USUAH VS. GOC NIGERIA LIMITED (2012) LPELR CA/C/135/2008.
There is nothing to amend in a non-existent partys name in a suit and the only viable remedy in law, is an application to strike out the non-juristic partys name in a suit from the suit. A misprovider or mistake in name occurs only when the name of an existing party or entity is misspelt or mis-stated in a Court process. Such a misnomer or mistake can be corrected by way of an amendment on the basis of 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 be replaced, or substituted.
See also OLU OF WARRI VS. ESSI (1958) SC NLR 385; OKECHUKWU VS. NDOH (1967) NMLR 368; EHIDIMHEN VS. MUSA (2000) 8 NWLR (Pt. 669) 540 @ 567.
In the instant case, it is obvious, that the Court below has erred in granting leave to the Respondents to amend the originating process in question, with a view to substituting the non-juristic 2nd defendant therein. Undoubtedly, the disposition of the Court below in granting leave to substitute the 2nd Respondent, has amounted to an exercise of crooked-cord of discretionary power. As aptly held by the House of Lords (as the UK Supreme Court then was) in PETTITT VS. PETTITT:
To use the language of Coke, this would be to substitute the uncertain and crooked cord of discretion for the golden and straight met-wand of the law
See (1970) AC 777 per Lord Hodson @ 808.
The golden admonishing dictum of the Apex Court to which the Court below copiously alluded, is to the effect thus:
Even in such a situation, the Court cannot in the discharge of its sacred duty to do justice be inhibited by the ignorance or carelessness of counsel. The in justice resulting to the cause of the litigant from such demonstration of ignorance or carelessness does not adversely affect counsel whose fees remained undiminished.
See BELLO VS. A.G. OYO STATE (1986) 12 SC 1; 69; (1986) LPELR 764 (SC) per Karibi-Whyte, JSC @ 69.
Most regrettably, the wisdom inherent in the dictum re-echoed by the Apex Court in BELLO VS. A.G. OYO STATE (Supra) has been lost out to the Court below. Indeed, the Court of Appeal was at the receiving end of the Apex Courts far-reaching admonishing for holding that:
Appellant did not comply with provisions of the Law of Torts and therefore could not succeed on the claim before it on the basis of that law.
It ought to be reiterated, that justice cannot and ought not to be administered in vacuo. Undoubtedly, justice must be administered according to the constitution and the rule of law. As once postulated by a foremost erudite Jurist, Oputa, JSC in a Paper TOWARDS JUSTICE WITH A HUMAN FACE:
Under the constitutional provisions guaranteeing the right to justice, the justice to be administered is not an abstract justice as conceived by the judex but justice according to law. Having seen the imperfections of the strict law as the hand-maid of justice, it follows that to have justice with a human face the rule of equity must form part of the entire social experiment.
Hence, in the light of the foregoing postulation, I have no hesitation whatsoever in concurring with the far-reaching reasoning contained in the judgment of my learned brother, B. B. ALIYU, JCA to the conclusive effect that the instant appeal is grossly meritorious, and same is equally hereby allowed by me.
HAMMA AKAWU BARKA, J.C.A.: I agree.
Appearances:
Oludare W. Akanbi, Esq. with him, I. V. Ogiemwonyi, Esq.For Appellant(s)
Raheem Ismaila, Esq. for the 1st Respondent.
Taofiq Alubarika, Esq. for the 2nd Respondent.For Respondent(s)
