ANEGE & ORS v. ALANEME & ORS (2020)

ANEGE & ORS v. ALANEME & ORS

(2020)LCN/14503(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, July 29, 2020

CA/C/180/2018

Before Our Lordships:

Philomena Mbua Ekpe Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

CHIEF LEONAR ANEGE (President-General, Ideato Welfare Association) 2. IDEATO WELFARE ASSOCIATION 3. CHIEF LIVINUS CHUKWEZE IHEZE APPELANT(S)

And

MR. PATRICK UBANA ALANEME 2. CHIEF TITUS ONWUEGBUOKWU ALANEME 3. PRINCE CHRISTIAN ADEMEAGHA ANYAOHA RESPONDENT(S)

RATIO

COMPETENCE OF A COURT TO ENTERTAIN A MATTER

Generally, a Court is competent to entertain a cause or matter in the following circumstances: –
(a) When the subject matter of the case is within the Court’s jurisdiction;
(b) When there is no feature of the case which prevents the Court from exercising its jurisdiction
(c) When it is properly constituted as regards its members and the qualification of the members of the bench and no member is disqualified for one reason or the other.
See Madukolu Vs Nkemdilim (1962) 2 SCNLR 341, Galadima Vs Tambai (2000) 11 NWLR (Prt 677) 1, Araka Vs Ejeagwu (2000) 15 NWLR (Prt 692) 684 and Amobi Vs Nzegwu (2014) 2 NWLR (Prt 1392) 510 at 536.
Also at the commencement of trial, a properly constituted action must contain the plaintiff, a defendant and the claim against the defendant. Thus, it is improper to join as co-defendants to an action against whom he has not made any claim. See Lajumoke Vs Doherty (1969) NMLR 281. PER SHUAIBU, J.C.A.

DEFINITION OF “AGENCY”

Turning back to the second arm of the appellants’ complaint, they contended that since the 1st and 3rd appellants are agents of a disclosed principal, they cannot be sued along with their disclosed principal. “Agency” in law connotes the relationship which exists where one has the authority or capacity to create legal relationship between a person occupying the position of principal and third parties. In other words, the agent can affect the principal’s legal position by certain acts which though performed by him are not really to be treated as the agent’s own acts but as acts of the principal. See Kings Planet International Vs C.P.W.A. Ltd (2014) 2 NWLR (Prt 1392) 605. In Ikedife & Anor Vs Obienu (1975) LPELR 1471 (SC) it was held that a disclosed principal is entitled to sue or be sued in respect of any money paid on his behalf by his agents since in such a case the consideration has moved from the disclosed principal and not from the agent. Thus, if the agent brings an action, he should disclose the capacity in which he had done so. PER SHUAIBU, J.C.A.

WHETHER OR NOT WHERE AN AGENT IS KNOWN OR DISCLOSED, THE CORRECT AND PROPER PERSON TO SUE FOR ANYTHING DONE IS THE PRINCIPAL

Where the principal of an agent is known or disclosed, the correct and proper person to sue for anything done or omitted to be done by the agent is the principal. See Vassile Vs Pass Industries Ltd (2001) 12 NWLR (Prt 681) 347 at 357. InNiger Progress Ltd Vs Nel Corp. (1989) 3 MWLR (Prt 107) 68 at 84, the Supreme Court per Obaseki, JSC held that a defendant acting on behalf of a known principal incurs no liability and the fact that the disclosed principal is a foreigner does not affect the question of liability. Also in UBA Plc V Ogundekun (2009) 6 NWLR (Prt 1138) 450 at 483 – 484, Adekeye, JCA (as he then was) held that: -“An action against as agent in its private capacity for act done on behalf of a known and disclosed principal is incompetent.”PER SHUAIBU, J.C.A.

THE TEST TO BE APPLIED BY THE COURTS TO ASCERTAIN IF THE TITLE OF A PARTY SHOWN ON THE WRIT OF SUMMONS IS A MISNOMER

The test which has been applied by the Courts to ascertain if the title of a party shown on the writ of summons is a misnomer is well settled. One factor that operates on the mind of the recipient of the writ of summons is whether there is or is not another entity to which the description on the writ might refer. The test is usually the Reasonable Man’s test of some kind to wit: How will a reasonable man receiving the document take it? If in all circumstances of the case and looking at the document as a whole, he would say to himself, of course it must mean me, but they got my name wrong, then there is a case of misnomer. If, on the other hand, he would say “I cannot tell from the document whether they mean me or not and I shall have to make inquiries, this would have gone beyond the realm of a misnomer. See Dacies Vs Elsby Brothers Ltd (1960) 3 All ER 672 at 676, Mailafia Vs Berities Insurance (1986) 4 NWR (Prt 38) 802 at 812 and Nwabueze Vs Nipost (2006) 8 NWLR (Pt 983) 480 at 526-527. PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Cross-River State, sitting at Calabar, Coram Hon. Justice A. E. Ayade delivered on 28th March, 2018 wherein the learned trial judge dismissed the appellant’s preliminary objection and assumed jurisdiction to entertain the claimants (now respondents) suit.

By a notice of preliminary objection filed on the 15th May, 2017 and brought pursuant to the inherent jurisdiction of the Court, the 1st defendant prayed the Court for an order striking out the suit for lack of jurisdiction. The sole ground of the objection was that the jurisdiction of the lower Court was not properly invoked as there is no competent defendant in the suit before the Court.

Issues on the said preliminary objection were joined by the parties but before the hearing of the preliminary objection the claimants as respondents filed a motion on notice on 24th January, 2018 to substitute the non-juristic 2nd defendant with the juristic Registered Trustees of Ideato Cultural and Welfare Association and to amend the capacity in which the 1st and 3rd Defendants are

sued. Issues were also joined on the said motion on notice and the learned trial judge decided to hear the two processes together. Consequently, the two applications were argued and in a reserved and considered ruling delivered on 28th March, 2018 he granted the motion for substitution and dismissed the appellant’s preliminary objection at pages 205-206 of the record of appeal as follows:-
“A cursory look at the statement of claims, the amended statement of defence, the Application before this Court, there is no doubt that the claimants/respondents has a cause of action against the 1st and 3rd defendants which is yet to be determined by this Court and such should not be thrown under the table over an unjustifiable jurisdictional challenge of an adverse party.
I equally have no doubt in my mind at all that as President-General of the 2nd defendant/applicant, the 1st defendant was in the eye of the law an agent of the organization for which he purportedly acted and the principle of law of principal and agent would generally have applied. Thus, where the President-General was using his position and power corrosively against the perceived

opponents and allies in the name of or purporting to bind the organization. But where the act of the agent falls entirely outside the scope of his authority, the principal is not liable as in this case, both the act of the 1st and 3rd defendants/applicants was done against the claimants/respondents for self-seeking and as such all defendant can be held for act committed against the claimants either separately or jointly.”
He continued: –
“Further in a case involving parties who are agents of a disclosed principal, who acted outside the scope of their authority or wrong done by them personally on claimants, the claimants are at liberty to choose who to sue; they may decide to sue either the master and servant separately or both of them jointly. See Salmond on the law of torts, page 443. When he sued one of them separately and succeeds, this is not a bar to an action against the other, who would if sued have been liable as a joint tort feasor in respect of the same damages. Having stated so, I find and hold that the suit of the claimants/respondents is properly brought and competent before this Court.”

Appellants being dissatisfied with the judgment of the lower Court appealed to this Court on 6th April, 2018. The appellants’ notice of appeal at pages 208-210 of the record of appeal contains four (4) grounds of appeal. The appellant vide a leave of this Court granted on 28th April, 2020 amended their notice of appeal and same also contains four (4) grounds of appeal.

At the hearing of this appeal on 23rd day of June, 2020 learned counsel for the appellant Essien H. Andrew, SAN, leading another counsel adopted and relied on the appellant’s brief of argument filed on 20th April, 2020, deemed as properly filed on 28th April, 2020 in urging this Court to allow the appeal. Eta L. Akpama, Esq adopted and relied on the respondents’ amended brief of argument filed on 13th May, 2020 but deemed as properly filed on the 18th May, 2020 in urging this Court to dismiss the appeal.

Learned senior counsel for the appellant raised two (2) issues for the determination of this appeal as follows: –
1. Whether the learned trial judge was right to hold that in this suit the jurisdiction of the Court was properly invoked against competent defendants (Distilled

from grounds 1, 2 and 3).
2. Whether the learned trial judge was right to hold that he has the jurisdiction in the circumstances of this case to substitute as a defendant in this suit the non-juristic 2nd appellant with the Registered Trustees of Ideato Cultural and Welfare Association, Calabar. (Distilled from Ground 4).

Learned counsel for the respondents also nominated two issues for the determination of this appeal thus:
1. Whether the learned trial judge was right when he held that there were competent defendants before him and that he had jurisdiction to entertain the suit?
2. Whether the learned trial judge was right when he granted the claimants’ motion to replace the 2nd defendant with the Registered Trustees of Ideato Cultural and Welfare Association, Calabar?

The above two sets of issues are seemingly the same but couched differently. I shall nonetheless, determine the appeal based on the two issues formulated by the appellants, the rightful owners of the appeal. Before proceeding to consider the respective argument of learned counsel on both sides, it is pertinent to state briefly the facts of the case as encapsulated

in the appellants’ brief of argument.

The respondents herein were suspended as members of Ideato Welfare Association, a socio-cultural Association for indigenes of Ideato North and Ideato South Local Government of Imo State resident in Cross-River State.

The respondents who were aggrieved by their suspension commenced an action against the appellants wherein, the 1st appellant was sued in his capacity as President-General of Ideato Welfare Association. The 2nd appellant was sued as Ideato Welfare Association, even though, it is not incorporated and the 3rd appellant was sued as the Grand Patron of the Association.

On issue No. 1, learned counsel for the appellants submitted that an unincorporated association, the 2nd defendant/appellant is a non-juristic person which cannot be sued eo nomine as “Ideato Welfare Association” as an association of persons without incorporation cannot be regarded as a legal person in Court. He referred to Administrator/Executor of the Estate of General Sani Abacha Vs Eke-Spiff (2009) All FWLF (Prt 467) 1 at 30-31 and Fawehinmi Vs NBA (No.2) (1989) LPELR – 99 (SC) to the effect that the

plaintiff and the defendant must be juristic persons or natural persons existing or living at the time the action is instituted. He thus contends that the 2nd defendant as at the time of instituting the suit is an unincorporated association.

In further contention, learned counsel argued at ththe procedure for instituting an action against an incorporated association, such as the 2nd defendant is to sue the association through its representatives. He referred to Dairo Vs Registered Trustees of Anglican Diocese of Lagos (2017) LPELR – 42573 (SC) at 30-31 and Yellow Vs Yunus (2018) LPELR – 45101 (CA) 10. He submitted that the 1st and 3rd defendants/appellants who should have been sued as representatives of the unincorporated Ideato Welfare Association were sued in their personal capacities as co defendants with the association. Also being agents of a disclosed principal, they cannot be joined as co-defendants in an action against their principal. He referred to Ukpanah Vs Ayaya (2010) LPELR-8590 (CA) at 23 to the effect that the 1st and 3rd defendants are not competent as defendants in the suit regardless of whether Ideato Welfare Association is

an incorporated body suable through its representatives because as members of the association, they are not personally liable for whatever they did or failed to do on behalf of the association. He referred to UBA Vs Ogundokun (2010) All FWLR (Prt 504) 1521 at 1550.

It was submitted that in the absence of competent defendants in the suit at the lower Court, the suit is fundamentally defective and the Court is only seized with jurisdiction when there is a competent plaintiff and a competent defendant before the Court.

On the part of the respondents, learned counsel referred to Order 15 Rules 24 and 28 of the High Court of Cross-River State (Civil Procedure) Rules, 2008 which permits an unincorporated body or persons or partners, etc to sue and be sued “eo nomee”. He contended that the said rules includes friendly associations such as Ideato Welfare Association relying on the authorities of Carlen (Nig.) Ltd Vs University of Jos (1994) 1 NWLR (Prt 323) 631 and Societa Generale Fondazioni Nigeria Ltd Vs Emmol Nigeria Enterprises (2007) 29 WRN 135 at 194.

On the competence of the suit against the 1st and 3rd defendants, learned counsel

alluded to the position taken by the learned trial judge that since the 1st defendant is using his powers as President-General of 2nd defendant against the respondents and the 3rd defendant’s action was the cause of the crises in the association, their collective actions fell outside the scope of their authority as agent of the defendant and thus, they are personally liable and to hold otherwise according to the learned counsel is to give certain unscrupulous officers of various associations undue opportunity of hiding under the cloak of acting for a disclosed principal to commit even criminal acts against members of the association.

Still in argument, learned counsel submits that the claimants’ claim against the defendants at the lower Court being jointly and severally, the joinder of 1st and 3rd defendants was proper. He referred to R. O. Iyere Vs Bender Feed and Flour Ltd (2008) 7-12 SC 15, Osigwe Vs P. M. C. L. 1-2 SC (Prt 1) 79 and Carlen (Nig) Ltd Vs University of Jos (supra) in contending that the 1st and 3rd defendants were not sued for wrongs they committed personally, but because the reliefs were claimed jointly and severally against

the defendants who are now appellants. He submits that the defendants were properly sued and the lower Court had jurisdiction to entertain the suit.

The appellants’ main contention in respect of issue No. 1 is that the lower Court lacks the jurisdiction to entertain suit No. HC/62/2015 which gave rise to this appeal based on the absence of competent defendants in the suit. The appellants submitted that the 2nd defendant is not a juristic person capable of been sued and that the 1st and 3rd defendants being agents of a disclosed principal cannot be sued jointly with their principal.
Generally, a Court is competent to entertain a cause or matter in the following circumstances: –
(a) When the subject matter of the case is within the Court’s jurisdiction;
(b) When there is no feature of the case which prevents the Court from exercising its jurisdiction
(c) When it is properly constituted as regards its members and the qualification of the members of the bench and no member is disqualified for one reason or the other.
See Madukolu Vs Nkemdilim (1962) 2 SCNLR 341, Galadima Vs Tambai (2000) 11 NWLR (Prt 677) 1, Araka Vs Ejeagwu

(2000) 15 NWLR (Prt 692) 684 and Amobi Vs Nzegwu (2014) 2 NWLR (Prt 1392) 510 at 536.
Also at the commencement of trial, a properly constituted action must contain the plaintiff, a defendant and the claim against the defendant. Thus, it is improper to join as co-defendants to an action against whom he has not made any claim. See Lajumoke Vs Doherty (1969) NMLR 281.
The appellants’ complaints in the present case are of two folds namely, the 2nd defendant is not a juristic person and the 1st and 3rd defendants are agents of a disclosed principal and therefore cannot be sued together with their principal in the same suit.
On the first arm of the appellants’ contention, the law is settled that both the plaintiff and the defendant must either be natural persons or juristic persons before they can sue or be sued. Thus, an association of persons without incorporation cannot be regarded as a legal person for the purposes of action in Court. See Amodu Vs Rufai Shittu & Ors Vs Momodu Ligali & Ors (1941) 16 NLR 23 and Fawehinmi Vs NBA (No. 2) (Supra).
Both the learned trial Court and the learned counsel for the respondents

placed reliance on the Supreme Court decision in Carlen Vs Uni Jos (supra) to the effect that it is not only a corporation (aggregate or sole) apart from a natural person, that has the attribute to sue and to be sued. And that there are bodies generally regarded as quasi or near corporation on whom status expressly or impliedly confers a right to sue or be sued, though unincorporated. They are not legal personae stricto sensu but have a right to sue or be sued by a particular name. However, whether a quasi corporation has the right to sue or be sued eo nomine depends on whether the statute creating it expressly or by implication gives it such power. See also Dairo & Ors Vs Registered Trustees of the Anglican Diocese of Lagos (supra). In Anozia Vs Attorney-General, Lagos State & Ors (2010) LPELR – 3738, this Court per Saulawa, JCA said:-
“It is generally accepted that bodies created under the Constitution and duly conferred with certain statutory powers and duties are juristic persons even though established not expressly so designated.”
In paragraph 5 of the statement of claim, the 2nd appellant is the umbrella

socio-cultural association of all Ideato people resident in and carrying on businesses in Calabar, Cross River State. There are two Local government that make up the Ideato Welfare Association namely, Ideato South and Ideato North Local Government Areas of Imo State.
I have stated elsewhere in this judgment that authority to sue and be sued eo nomine may be accorded a voluntary unincorporated association by statute expressly or impliedly. Thus, if the legislature desired to constitute a particular association a suable entity would have done so expressly. In the instant case, there is no statute expressly conferring a right to sue or be sued eo nomine on the 2nd appellant and then can that right be said to be derived by implication? The answer in my view is in the negative as neither the plaintiffs nor the defendants drew the trial Court’s attention to the statute dealing with 2nd appellant. Where either of the parties is not a legal person, the action is liable to be struck out as being incompetent. See Agbonmagbe Bank Ltd Vs General Manager G. B. Olivat Ltd & Anor (1961) All NLR 116 and Asuquo Vs Sector Commander F.R.S.C (2019) LPELR-46846 (CA).

Learned counsel for the respondents referred to Order 15 rules 24 and 28 of the Cross River State High Court (Civil Procedure) Rules, 2008 to contend that any two or more persons claiming or alleged to be liable as partners and doing business within the jurisdiction may sue or be sued in the name of the firm. I cannot but agree with the submission on behalf of the appellants that the said provisions of the rules are not applicable as same relates to partnerships and business names. It is uncontestable fact that as a Friendly Society, Ideato Welfare Association, is not a partnership or business name that can sue or be sued eo nomine.
Turning back to the second arm of the appellants’ complaint, they contended that since the 1st and 3rd appellants are agents of a disclosed principal, they cannot be sued along with their disclosed principal. “Agency” in law connotes the relationship which exists where one has the authority or capacity to create legal relationship between a person occupying the position of principal and third parties. In other words, the agent can affect the principal’s legal position by certain acts which

though performed by him are not really to be treated as the agent’s own acts but as acts of the principal. See Kings Planet International Vs C.P.W.A. Ltd (2014) 2 NWLR (Prt 1392) 605. In Ikedife & Anor Vs Obienu (1975) LPELR 1471 (SC) it was held that a disclosed principal is entitled to sue or be sued in respect of any money paid on his behalf by his agents since in such a case the consideration has moved from the disclosed principal and not from the agent. Thus, if the agent brings an action, he should disclose the capacity in which he had done so.
It was the contention of the respondents that the appellants at the trial Court are sued jointly and severally as such the joinder of 1st and 3rd appellants together with 2nd appellant was proper. The legal concept of vicarious liability requires 3 parties. The injured party, a person whose act or default caused the injury and the person vicariously liable for the latter’s act or default. There is no dispute as to the facts that the 1st and 3rd appellants are agents of the 2nd appellant. In the claim giving rise to this appeal, the appellants are sued jointly and severally.

Where a claim is brought jointly and severally against defendants it means each party is responsible jointly with each other and also severally for the whole amount of damage caused by the tort irrespective of the extent of participation. Therefore, a person injured may sue any one of them separately for the full amount of the loss, or he may sue all of them jointly in the same action, and in this latter case the judgment so obtained against all of them may be executed in full against any one of them. See Osondu Vs Boneh (2000) 3 SC 42.
I have also stated in this judgment how the act of agent can affect the principal legal position by certain acts which though performed by him are not to be treated as the agents’ own acts but as acts of the principal. The situation is in law as if it was the principal that did what the agent did or omitted to do.
Where the principal of an agent is known or disclosed, the correct and proper person to sue for anything done or omitted to be done by the agent is the principal. See Vassile Vs Pass Industries Ltd (2001) 12 NWLR (Prt 681) 347 at 357. InNiger Progress Ltd Vs Nel Corp. (1989) 3 MWLR (Prt 107) 68 at 84, the Supreme

Court per Obaseki, JSC held that a defendant acting on behalf of a known principal incurs no liability and the fact that the disclosed principal is a foreigner does not affect the question of liability. Also in UBA Plc V Ogundekun (2009) 6 NWLR (Prt 1138) 450 at 483 – 484, Adekeye, JCA (as he then was) held that: -“An action against as agent in its private capacity for act done on behalf of a known and disclosed principal is incompetent.”
From the above, the respondents as claimants in the lower Court are not at liberty to pick and chose who to sue where the agent has disclosed his principal. I resolve issue No. 1 in favour of the appellants.

On issue No. 2, learned counsel for the appellants submits that there cannot be a valid amendment of the title of the suit since there was never a legal person who was brought before the Court by the action. Thus, a Court has no jurisdiction to entertain a suit initiated in the name of non-existent person or non-juristic person or an application aimed at substituting by way of amendment a non-juristic person with a juristic person. He referred to George Olumoroji Vs Owodiong Idemeko (2018) All

FWLR (Prt 952) 110 at 129-131.

He further submits that the substitution of the Registered Trustees of Ideato Cultural and Welfare Association cannot remedy the absence of the representative of Ideato Welfare Association as a determinant in this suit. Thus, the absence ab initio of the representative of Ideato Welfare Association as a competent and necessary defendant in the case is incurable. He referred to Zekeri Vs Alhassan (2013) FWLR (Prt. 177) at 972.

In response to the above, the learned counsel for the respondents referred to Order 5 of the High Court of Cross River State (Civil Procedure) Rules, 2008 to contend that where an action may be instituted against a wrong defendant or where the name of a defendant has been incorrectly stated, a judge may upon application order a striking out or substitution or addition of any person as defendant or correction of any such name on any terms as may be just. He submits that the moment the 2nd appellant’s name was changed from Ideato Welfare Association, Calabar to Ideato Cultural and Welfare Association, Calabar, the name on record became incorrectly stated and could be corrected by the lower

Court. He referred to Maersk Line Vs Adide Investment Ltd (2002) 11 NWLR (Prt 778) 317 and So Safe Table Water Technologies Ltd Vs Orafunmilayo Ayinuluwa (2014) All FWLR (Prt 747) 649 to the effect that a person sued is not a legal person does not preclude the Court from amending the title of the action to show the correct name of the party sued, if it is shown to the satisfaction of the Court that it was a case of misnomer.

I have right from the onset stated that after filing the notice of preliminary objection by the defendant at the lower Court, the claimants thereafter filed a motion on notice to substitute the unregistered “Ideato Welfare Association” with “The Registered Trustees of Ideato Cultural and Welfare Association, Calabar” or to amend the status of the 1st and 3rd defendants to show that they are principal officers of the Registered Trustees of Ideato Cultural and Welfare Association, Calabar.
A misnomer when associated with issues of juristic personality and mis-description of names of parties simply means the “wrong use of a name or a mistake in naming a person, place or thing, especially in a legal

instrument which should ordinarily not lead to a nullification of the proceedings. In other word, a misnomer in the context of litigation occurs where the entity suing or intended to be sued exists, but a wrong name is used to describe that entity. SeeMaersk Line Vs Adide Investment Ltd (supra). InEmespo J. Continental Ltd Vs Corona S. Mba & Co (2006) 11 NWLR (Prt 991) 365 at 378, it was held that a misnomer is said to occur in legal proceedings when the correct person comes or is brought to Court under a wrong name but not when the wrong person sues or is sued in an action.
The test which has been applied by the Courts to ascertain if the title of a party shown on the writ of summons is a misnomer is well settled. One factor that operates on the mind of the recipient of the writ of summons is whether there is or is not another entity to which the description on the writ might refer. The test is usually the Reasonable Man’s test of some kind to wit: How will a reasonable man receiving the document take it? If in all circumstances of the case and looking at the document as a whole, he would say to himself, of course it must mean me, but they

got my name wrong, then there is a case of misnomer. If, on the other hand, he would say “I cannot tell from the document whether they mean me or not and I shall have to make inquiries, this would have gone beyond the realm of a misnomer. See Dacies Vs Elsby Brothers Ltd (1960) 3 All ER 672 at 676, Mailafia Vs Berities Insurance (1986) 4 NWR (Prt 38) 802 at 812 and Nwabueze Vs Nipost (2006) 8 NWLR (Pt 983) 480 at 526-527.
The appellants’ complaint is that the suit which was filed without a competent defendant was dead ab initio and liable to be struck out. And that the desperate attempt to give life to it was futile.
The Supreme Court had recently restated the legal position in APGA Vs Ubah & Ors (2019) LPELR – 48132 (SC) held that if the entity intended to be sued exist but a wrong name is used to describe it, that is a misnomer. In the instant case and at the time of filing the suit at the lower Court, the 2nd appellant, “Ideato Welfare Association” was non-existent as it was an unincorporated association. Similarly, the “Registered Trustees of Ideato Cultural and Welfare Association” did not exist when

the respondent cause of action for this suit arose between 2011-2014.
In Obasi Vs Mikson Establishment Ltd (2016) LPELR-40704 (SC), the Supreme Court has inter alia held that naming a non-juristic person as a party is not a misnomer and amending same to substitute a juristic person is out of it. This is so because there cannot be a valid amendment of the title of a suit since there never was a legal person who was brought before the Court by the action. And since to be competent a suit must be instituted between legally juristic persons, failing which it is incompetent and a juristic party cannot subsequently be amended to take the place of a non-juristic party originally sued. The correction made by the lower Court by replacing a non-juristic person with one with legal capacity was done without jurisdiction. I also resolve issue No. 2 in favour of the appellants.

In the result, the appeal succeeds and is accordingly allowed. The ruling of the lower Court of 28th March, 2018 is hereby set aside and Suit No. HC/632/2015 is struck out.

PHILOMENA MBUA EKPE, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my

learned brother Muhammed L. Shuaibu, JCA. I agree entirely with the reasoning and the conclusion arrived thereat.
The appeal succeeds and is hereby allowed.

HAMMA AKAWU BARKA, J.C.A.: I had the privilege of reading in draft the judgment of my learned brother, Muhammed Lawal Shuaibu, JCA, just delivered. I entirely agree with the reasoning and conclusion reached.
This appeal succeeds and is hereby allowed. I too set aside the ruling of the lower Court of 28th March, 2018 and struck out the Suit No. HC/632/2015, accordingly.

Appearances:

Essien H. Andrew, SAN with him, I. I. Hamlet For Appellant(s)

Mba E. Ukweni, SAN with him, Eta L. Akpana For Respondent(s)