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ABIKOYE v. ABIKOYE (2022)

ABIKOYE v. ABIKOYE

(2022)LCN/15954(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/IL/15M/2022(R)

Before Our Lordships:

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Isaiah Olufemi Akeju Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

MRS. BUKOLA FOLORUNSHO ABIKOYE APPELANT(S)

And

DR. OLATAYO OLUFEMI ABIKOYE RESPONDENT(S)

 

RATIO

WHETHER OR NOT A NON-JURISTIC PERSON CAN SUE OR BE SUED

There is no further res upon which this application is based. It becomes entirely an academic exercise. An academic question does not relate to life issues since such questions are spent and do not enure any right or benefit to the successful party. See Odedo v. INEC (2005) 17 NWLR (Pt. 1117) 554 and Plateau State v A.G. Federation (2006) 3 NWLR (Pt. 967) 346. It is settled that Courts do not indulge in answering academic questions. See Abubakar v. Yar-Adua (2008) 4 NWLR (Pt. 1078) 407.

Even at that, a distinction has to be made between suing in a wrong name which is a misnomer that is a misdescription or wrong use of name, which in summary is a mistake as to the name and not a mistake as to the identity of the particular party sued, in which case; an amendment is permitted to correct the mistake. See A. B. Manu & Co. Nig. Ltd. v Costain (W.A) Ltd. (1994) 7 NWLR (Pt. 367) 112 and Njemanze v. Shell B.P. Port-Harcourt (1966) 1 ALL NLR 8 at 10-11.

On the other hand, a non-juristic person cannot sue or be sued. See Emeecheta v. Ogueri (1996) 5 NWLR (Pt. 447) 227at 240. PER AMADI, J.C.A.

KENNETH IKECHUKWU AMADI, J.C.A. (Delivering the Leading Judgement): The Applicant in this motion is the Respondent in the Divorce Petition No: KWS/OM/12/2020 while the Respondent is the Petitioner thereof. By this motion filed on the 23/2/2022, the applicant is asking for:
1. AN ORDER granting extension of time within which the Appellant/Applicant can seek leave to appeal to the Court of Appeal, Ilorin against the interlocutory rulings delivered on 24th day of January, 2022, by the High Court of the Kwara State sitting in Omu-Aran, Coram: Honourable Justice Hammed A. Gegele on grounds of mixed law and facts.
2. AN ORDER granting leave to the Appellant/Applicant to appeal to the Court of Appeal, Ilorin against the interlocutory ruling delivered on 24th day of January, 2022, by the High Court of the Kwara State sitting in Omu-Aran, Coram: Honourable Justice Hammed A. Gegele on grounds of mixed law and fact.
3. AN ORDER granting the Appellant/Applicant extension of time within which to appeal to the Court of Appeal, Ilorin against the interlocutory Ruling delivered on 24th day of January, 2022, by the High Court of the Kwara State sitting in Omu-Aran, Coram: Honourable Justice Hammed A. Gegele on grounds of mixed law and fact.
4. And for such further or other ORDER(S) as the Court of Appeal may deem fit to make in the circumstances.

The grounds upon which this application is brought are:
i. The Petitioner/Respondent instituted an action under divorce proceedings against one Bukola Folorunsho Abikoye.
ii. The Respondent/Applicant on service of the petition at the residence of her mother raised an objection to the competence of this Honourable Court to entertain the suit, in that the Respondent as sued (Bukola Folorunsho Abikoye) is not a juristic person.
iii. On the 24th of January, 2022, this Honourable Court in its considered ruling dismissed the Respondent/Applicant’s notice of preliminary objection.
iv. The Appellant/Applicant is aggrieved by the said ruling and desires to appeal against the said interlocutory ruling of this Court delivered on the 24th of January, 2022.
v. This application is necessary to enable the Appellant/Applicant exercise her constitutional right of appeal against the ruling of the trial Court.
vi. The Appellant/Applicant has 14 days to appeal against the ruling of this Honourable Court.
vii. The applicant quickly filed a motion on notice within time before the trial Court for leave to appeal against the trial Court’s ruling which notice of appeal contains grounds of mixed law and fact.
viii. The trial Court failed to entertain the motion filed by the appellant/applicant, on the 7th of February, 2022 when the matter came up, which day coincidentally happens to be the last day within which the appellant/applicant can seek leave to file her notice of appeal.
ix. Leave of this Honourable Court is required to appeal against the said ruling of the trial Court on mixed law and facts.
x. The Appellant/Applicant requires the leave of this Honourable Court to file her notice of appeal which contains grounds of mixed law and facts.
xi. The appellant/applicant is now out of time to also file her notice of appeal and this Honourable Court has the power to extend time within which the appellant/applicant can file her notice of appeal out of time.
xii. The grounds of appeal against the interlocutory ruling borders on breach of fair hearing, objection to the juristic personality of the respondent as sued, countenancing communication between counsel in the process of reconciliation, non-juristic person can be proved are serious and recondite issues of law.
xiii. The proposed Notice of Appeal has raised serious issues of law, breach of fair hearing, jurisdictional issue and evaluation of evidence.
xiv. The Appellant/Applicant has shown clear willingness to diligently and speedily prosecute the appeal at the Court of appeal.
xv. It is in the interest of justice to grant this application as the Respondent/Respondent will not be prejudiced by the grant of same.
xvi. The leave of this Honourable Court is required to appeal the interlocutory decisions which contain grounds of mixed law and fact and also to extend time within which to file her notice of appeal out of time.
xvii. This Honourable Court has unfettered power to grant this application in the interest of justice.

The motion is supported by an affidavit of 4 paragraphs with 4 annexures as follows:
I. Ruling of this Honourable Court delivered on the 24th of January, 2022 as Exhibit FAA 1.
ii. The Proposed Notice of Appeal as Exhibit FAA 2
iii. Application for compilation of records and proof of deposit for compilation of record as Exhibit FAA 3.
iv. Motion for leave filed before the trial Court. Exhibit FAA 4.

In his written address in support of this application, the learned counsel for the applicant raised one issue for determination thus:-
Whether having regards to the circumstances and facts of this case, the appellant/applicant is entitled to the discretion of this Honourable Court to grant leave to appeal the ruling delivered by the trial Court on 24th day of January, 2020.

In arguing this sole issue, counsel submitted that this motion was filed in order to err on the side of surplusage in the event any of the grounds of the proposed notice of appeal is found to also contain grounds of mixed law and fact. That where an interlocutory appeal involves question of law alone no leave is required. But where an interlocutory order involves mixed law and fact, an appeal will lie with leave of Court. Counsel referred to Section 241(1) of the 1999 Constitution as amended and the case of Ichie Jerome Anoghahu v. Nathan Oraelosi (1990) 10 SCNJ 1.

Counsel submits that where a Court process needs to be filed with leave of Court, it must be filed with leave and if not filed with leave of Court the said process is a nullity ab initio referring to Sanni v. Agara (2010)2 NWLR (Pt. 1178) 511.

Counsel urged this Court to grant this application as the success of same is capable of terminating the suit pending before the trial Court.

The learned counsel for the Petitioner/Respondent in this motion did not file any counter-affidavit in opposition to this motion, but informed the Court orally that, the respondent to the petition and applicant in this motion conceded to the dissolution of the marriage which has been dissolved. Counsel to the Respondent/Applicant to this motion agreed that the marriage has been dissolved.

RESOLUTION
The learned counsel for the Applicant conceded to the fact of the dissolution of the marriage, which has been dissolved. There is no further res upon which this application is based. It becomes entirely an academic exercise. An academic question does not relate to life issues since such questions are spent and do not enure any right or benefit to the successful party. See Odedo v. INEC (2005) 17 NWLR (Pt. 1117) 554 and Plateau State v A.G. Federation (2006) 3 NWLR (Pt. 967) 346. It is settled that Courts do not indulge in answering academic questions. See Abubakar v. Yar-Adua (2008) 4 NWLR (Pt. 1078) 407.

Even at that, a distinction has to be made between suing in a wrong name which is a misnomer that is a misdescription or wrong use of name, which in summary is a mistake as to the name and not a mistake as to the identity of the particular party sued, in which case; an amendment is permitted to correct the mistake. See A. B. Manu & Co. Nig. Ltd. v Costain (W.A) Ltd. (1994) 7 NWLR (Pt. 367) 112 and Njemanze v. Shell B.P. Port-Harcourt (1966) 1 ALL NLR 8 at 10-11.


On the other hand, a non-juristic person cannot sue or be sued. See Emeecheta v. Ogueri (1996) 5 NWLR (Pt. 447) 227at 240. 

In this case, the quarrel of the Applicant is that “the petition is not descriptive of the legal status and personality of the Respondent” therefore the Court lacks the jurisdiction to entertain the matter.

From the record, the Applicant bore the name Bukola Folorunsho before her marriage to the Petitioner/Respondent Dr. Olatoye Abikoye. The learned trial judge in refusing the preliminary objection in this case noted that the “petitioner in this case is Dr. Olatayo Olufemi Abikoye while the Respondent is Mrs. Bukola Folorunsho Abikoye. If the maiden name of the Respondent is Folorunsho, can one say there is a mistake of identity as the composition of parties in this suit? The answer in my view is capital No.” see page 7 of the record of appeal. From the foregoing, the reasoning of the lower Court cannot be faulted.

Apart from that, the Applicant did not disclose what she thinks is her proper legal desciptive name should be throughout this application and therefore failed to furnish any reason for the grant of this application.

In all, this application is lacking in merit and it is hereby dismissed. Ruling is entered accordingly.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the ruling just delivered by my learned brother, KENNETH IKECHUKWU AMADI, Ph.D. JCA. I agree with his reasoning and final conclusions. The contentious issue is whether the applicant’s name at birth is still her name for purposes of this Petition.
I dare say without fear of contradiction that a woman’s maiden name should be more permanent. A woman’s marital name might change after each divorce as it pleases the woman.
However, at any such change of name shall not affect any rights or obligations of the woman or render defective any legal proceedings by or against her, and that any legal proceedings that could have been continued or commenced by her or against her former name, may be continued or commenced by her or against her in her new name. The law thus recognized the right of the woman to change her name and to thereafter, commence an action in her new name in respect of transactions entered into and carried out in her old name.

I hold that this line of argument by her counsel does not hold water. I therefore refuse this application as well.

ISAIAH OLUFEMI AKEJU, J.C.A.: I have read the ruling delivered by my learned brother, KENNETH IKECHUKWU AMADI, JCA, and I dismiss the application for lack of merit.

Appearances:

O. J. DAVID, ESQ. with him, B. J. OWOLABI, ESQ. and L. M. ZAKARIYAL, ESQ. For Appellant(s)

BUKOLA OYALEKE, ESQ. For Respondent(s)