HON. P. ANSELEM EYO v. FEDERAL ROAD SAFETY COMMISSION, UYO & ANOR
(2019)LCN/13789(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of January, 2019
CA/C/92/2013
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
HON. P. ANSELEM EYO Appellant(s)
AND
1. FEDERAL ROAD SAFETY COMMISSION, UYO
2. MR. ALAO G.E Respondent(s)
RATIO
THE PRINCIPLE OF “MISNOMER”
This is because the authorities are agreed that ?misnomer does not lie in giving the name of the ?wrong person? but in mistakenly giving a ?wrong name? to the right person intended to be sued? See e.g. OBASI v. MIKSON Establishment (IND.) Ltd. (2005) All FWLR (Pt. 250) 153 at 164. The most important implication of the above statement of law is that where in fact a ?wrong name? is given to any of the parties and not just the question of giving a ?wrong name? to the right person intended to be sued, that would not be a misnomer.
?Consequently, an amendment of a misnomer will only be allowed where a juristic or natural person is sued and the name is incorrectly or incompletely written. The logic here is simple. If a ?a wrong name? has been given and the name is not that of a juristic entity, the process filed would have been defective and/or incompetent ab initio and there would be indeed nothing to cure or to amend. In OBASI V MIKSON ESTABLISHMENT [IND] LTD. [2005] ALL FWLR [Pt. 250] 153 @ 164, the Court agreed that the Plaintiff being described as Mlkson Establishment Industries in the motion paper dated 28th June, 1998 be substituted with the name MILKSON INDUSTRIES LTD., as the proper and authentic name of the plaintiff as contained in the foreign judgment registered by Court.
However, in the case of NJOKU V U.A.C. FOODS [1999] 12 NWLR [Pt. 632] @ 557 @ 563 the writ was issued against United African Company Foods while the proposed Defendant was U.A.C Nig. Plc. The amendment was held not to be a misnomer. The Court of Appeal per M. D. Muhammad, JCA held that it will be wrong to substitute United African Company Foods with U.A.C. Nigeria Plc in the guise of a misnomer. PER OWOADE, J.C.A.
FACTOR TO DETERMINE THE JURISDICTION OF THE COURT
In determining the jurisdiction of the Federal High Court, notwithstanding the fact that one of the parties is an agency of the Federal Government, the subject matter of the dispute is also relevant. See OHAKIM V AGBASO (2010) 19 NWLR (pt 1226) 172, SALIM V C.P.C. (2013) 6 NWLR (pt 135) 501, UCHA V ONWE (2011)4 NWLR (pt 1237) 386 and A.G, LAGOS STATE V. EKO HOTELS LTD (2018) 7 NWLR (pt 1619) 518. PER SHUAIBU, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice A. I. Chikere of the Federal High Court Uyo, Akwa Ibom State in suit No. FHC/UY/CS/240/03. The said judgment was delivered on 26/5/2011.
At first, the Appellant as plaintiff brought a writ of summons and statement of claim on 5th November, 2003 against the ?The COMMANDER, Federal Road Safety Commission.? However by an Amended Statement of Claim of 16/6/2005 which incorporated the joinder of a second defendant, the Defendants in the suit became (i) The COMMANDER, Federal Road Safety Commission (ii) ALAO G.E.
The writ of summons which named only ?The COMMANDER Federal Road Safety Commission? as Defendant was at no point in time amended. By the Amended Statement of Claim of 16/6/2005, the Appellant claims against the Respondents as follows:
?(i) A declaration that is/was wrongful for the Defendants whether acting by themselves or through their officers, agents or representatives howsoever to publicly assault the Plaintiff by mid-day on 26/6/2003 along the Uyo Obot Idim Road by the
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Champion Breweries within the Uyo Capital City, Uyo, Akwa Ibom State and to forcefully trespass into and or snatch or seize his Peugeot 505 saloon car No. AA 286 UYY from his driver.
(ii) SPECIAL DAMAGES AS FOLLOWS:
(a) Daily Car hire @ N5,000 a day from 11/7/2003 to 9/9/2004
(Two Million, Thirty Thousand Naira) – N2,030,000.00
(b) Cost incurred in replacement of damaged parts consequent upon the prolonged parking and for workmanship (One Hundred and Seven Thousand, Two Hundred and Fifty Naira) -N107,250.00
(c) Total Special Damages – N2,137,250.00
(iii) N1 Million exemplary/general damages for the assault, embarrassment, humiliation, loss of prestige and other inconveniences thereby caused by the Plaintiff by the Defendants.
The Respondents reacted in consequence of the Appellant?s pleadings and filed Amended Statement of Defence and Counter-Claim on 10-7-2008. They counter-claimed thus:
(a) A Declaration that it is wrongful for the Defendants (Plaintiff in the main Suit) and his driver to publicly assault the officers and men of the Plaintiff (Defendants in the main Suit and Counter Claimant) by
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beating up one of the Officers Mr. Alao GE Road Marshal 1 and destroying his name tag, service belt, crest of authority and uniform in the process, just for no other reason than that he was performing his lawful duties.
(b) A demand of N5,000.00 special damages for the second Defendant?s officers loss of his name tag, service belt, crest of authority and his torn uniform as highlighted.
i. Name tag = N200.00
ii. Service Belt = N2,500.00
iii. Crest of Authority = N800.00
iv. Torn Uniform = N1,500.00
(c) An Order for payment of charges imposed on the Defendant?s driver when he was arrested for traffic offences of OVL, DGD, FEV, RHV, NDI, and NVL totaling N2,600.00 (Two Thousand, Six Hundred Naira only) and N100.00 (One Hundred Naira only) custody fee per each day the Defendant?s vehicle remain in custody of the Plaintiff (Counter Claimant) until the vehicle is removed from the Plaintiff?s (Counter Claimant?s) custody as a condition for that release.
?(d) A written apology from the Defendant for assault, humiliation, embarrassment and loss of prestige caused on the Counter Claimant?s
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officers and men, particularly Mr. Alao GE Road Marshal 1, complained of in paragraph 17 ? 19 of the statement of defense and 63 (a) and (b) of the Counter Claimant above.
However, on 7-9-2010, the Respondent as Applicant by a Notice of Preliminary Objection moved the Court below to dismiss and or strike out the Appellant?s suit for lack of jurisdiction. The grounds for the application were:
“(i) The defendant in this suit is not a juristic person.
(ii) The Court lacks jurisdiction to entertain this suit.?
Written Addresses were filed and exchanged on the Respondent?s Notice of Preliminary Objection of 7-9-2010. On 26-5-2011, the learned trial Judge struck out the Appellant?s suit for lack of jurisdiction. The reasoning of the learned trial Judge in coming to the above conclusion is two-fold. First, at pages 237-238 of Records that-
? It will be wrong to substitute sector command Federal Road Safety Commission with Federal Road Safety Commission.
The Sector Command is admittedly a non-juristic person.
I agree with applicant?s counsel that juristic person are
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either human beings or corporate bodies. To the extent that the writ sought to be amended was not in respect of a person within the contemplation of the law, the writ as well as the entire action is incompetent.
In the present suit, a non-juristic person, Sector Command Federal Road Safety Commission is sought to be substitute (sic) with a juristic person. The Federal Road Safety Commission, which the law disallows. When a Court is approached to substitute a non-juristic person with a juristic person and same is refused as in the instant case the proper order to make is that of striking out of the entire suit as being incompetent. Accordingly, suit is hereby struck out for being incompetent.?
Second and still on page 238 of the Record of Appeal the learned trial Judge held further;
?Also the main claim in Plaintiff?s suit is as shown in paragraph 43(1) of the amended statement of claim i.e assault of plaintiff, trespass and seizure of his Peugeot 505 saloon car No. AA 286 UYY etc.
It is trite law that the case or claim of plaintiff that determines the jurisdiction of the Court. See Adeyemi v. Opeyori (1976) 6-10 Sc page 31. ?
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The jurisdiction of the Federal High Court is as stated in Section 251 of the 1999 Constitution of the Federal Republic of Nigeria.
There is nowhere in Section 251 (1) of 1999 Constitution where this Court is vested with jurisdiction to determine issues of causes relating to assault, trespass and seizure of Peugeot saloon car. This is an exclusive preserve of the State High Court by virtue of Section 272 of 1999 Constitution. I so hold.
Accordingly, suit is struck out.?
Dissatisfied with this judgment, the Appellant filed a Notice of Appeal containing a solitary ground of Appeal in this Court on 24-6-2011.
Appellant?s brief of Argument dated 24-3-2014 and filed on the same day was deemed filed on 22-5-2017. Chief P. Anselem Eyo settled the brief for himself as the Appellant.
Respondents? brief of Argument dated 9-10-2018 and filed on 10-10-2018 was deemed filed on 10-10-2018. Learned counsel for the Appellant nominated a sole issue for determination of the appeal. It is;
?Whether the learned trial Judge was right in declining jurisdiction to entertain the suit and by striking out the Appellant?s claims against the Respondents.?
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The Respondent similarly formulated a sole issue to wit?
?Whether the lower Court have jurisdiction to entertain the suit.?
On the sole issue, Appellant submitted that it is trite law that jurisdiction of a Court is determined by the Plaintiff?s claim as endorsed in the writ of summons and statement of claim. He referred on this to the cases of Nigerian Navy v. Garrick (2006) All FWLR (Pt. 315) 45 at 70; Gold Mark Nig. Ltd. & Ors. V. Ibafon Co. Ltd. (2012) 211 LRCN 31 at 69 and furthered that the combination of facts constituting the Appellant?s cause of action as can be found on pages 2 to 29 as well as pages 109 to 147 of the Record of Appeal clearly show a competent action that the Federal High Court Uyo had jurisdiction to entertain.
?
He reproduced the Appellant?s reliefs as contained in the amended statement of claim and added that the jurisdiction of the Federal High Court to entertain any matter is established in Section 251 of the 1999 Constitution as amended. He submitted in this regard that to the extent that the Appellant?s claim
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involved declaration and damages against the Respondents respectively as agency and officer of the Federal Government of Nigeria, reference has to be made to Section 251 (1) (q) (v) and (s) of the 1999 Constitution of the Federal Republic of Nigeria.
He submitted that even if the learned trial Judge considered that it was the State High Court that should have had the jurisdiction to entertain the suit, she erred in law by failing to appreciate that the Federal High Court equally had concurrent jurisdiction with regards to the Appellant?s cause of action.
On this, Appellant referred to the case of Petroleum (Special) Trust Fund v. Integrated Facility Management Service Ltd. (2002) 16 NWLR (Pt. 784) 586 at 600 and 801.
On the issue of the name in which the 1st Respondent was sued, Appellant submitted that the reasoning of the learned trial Judge in ruling that the action was incompetent and therefore striking it out was in grave error. Firstly, said counsel, the learned trial judge was enjoined to have treated same as a misnomer and hence take steps to correct it even suo moto.
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Counsel referred to the decision of the Kaduna Division of the Court of Appeal in the case of Obasi v. Mikson Establishment (IND) Ltd (2005) All FWLR (Pt. 250) 153 at 164 and the case of Registered Trustees of Airline Operators v. Nigerian Airspace Management Agency (2014) 2 SCNJ (Pt. 11) 422 at 443.
He submitted that in the instant case, the 1st Respondent (Defendant) the Federal Road Safety Corps is a juristic person and in existence. That, for instance, in their pleadings the Respondents not merely joined issues with the Appellant as to who the 1st Respondent was within the con of the dispute, but in all instances has rather directly and positively admitted its existence and functioning as a juristic personality. On this, Appellant referred to paragraphs 1, 2, 3 and 4 of the Statement of Defence and Amended Statement of Defence at pages 31 and 46 of the record of appeal.
?
He submitted further that the Respondents are also even shown to have sought some relief in their counter claim against the Appellant. He submitted that it would in such circumstance be absurd to qualify the 1st Respondent who was so unequivocally admitted and unmistakably known by the Respondents as a non-juristic personality.<br< p=””
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He concluded that the improper description of the 1st Respondent by the Appellant in the said action, was merely a misnomer which the learned trial Judge ought to have corrected even suo moto rather than striking out the action. He referred to the case of MAERSK LINE V. ADDIDE LTD (2002) 29 WRN 1 at 37-38. Learned counsel for the Respondent on the other hand submitted that the Court below had no jurisdiction to entertain the suit, that the learned trial Judge was therefore right to strike out the suit for lack of jurisdiction.
He referred to the cases of NZOM v. JINADU (1987) NWLR (Pt. 51); MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341; AREWA PAPER CONVERTER LTD v. NDIC (NIG. UNIVERSITY BALIC LTD) (2006) 15 NWLR (Pt. 1002) 404 to say that a Court of law is said to be competent to entertain and determine a suit if it is properly constituted as regards members and qualification, the subject matter of the case is within jurisdiction and the case was initiated by due process upon fulfillment of conditions precedent. He submitted that the subject matter or cause of action in this case arose from assault, trespass and seizure of Peugeot saloon car which does
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not fall within the exclusive jurisdiction of the Federal High Court under Section 251 (1) of the 1999 Constitution.
He further submitted that the name of the 1st Respondent at the lower Court was not a misnomer but wrong and completely different from the one the Appellant intended to sue. That it is a statute that determines a juristic person and there is nowhere in the Federal Road Safety Commission Establishment Act 2007 that it is stated as ?Sector COMMANDER Uyo? is a juristic person. But that rather, Section 1 of the Federal Road Safety Commission Establishment Act 2007 Cap. 141 LFN Cap. F. 19 2007 established the Federal Road Safety Commission and refers to it as a body corporate with perpetual succession and common seal, which may sue and be sued in its corporate name.
He concluded that the learned trial Judge was right in striking out the suit because the proper party was not sued and the suit was incompetent. He urged us to dismiss the appeal.
?In deciding the sole issue in this appeal, I think the learned trial Judge was right to have struck out the Appellant?s suit either on account of the fact that the
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Appellant?s claims could not be accommodated within the jurisdiction of the Federal High Court under the provision of Section 251 (I) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) or on account of the fact that the description of the 1st Respondent (Defendant) as ?COMMANDER or Sector COMMANDER Federal Road Safety COMMISSION Uyo? is not just an amendable misnomer but the description of a non-juristic entity.
On the first arm of the issue, Appellant seems to have placed some reliance on the provision of Section 251 (I) (r) of the said Constitution to think that since Appellant? claims involved declaration and damages against the Respondents respectively as agency and officer of the Federal Government of Nigeria, his claims ought to be covered by the provision of Section 251 (I) (q) (r) and (s) of the Constitution. This argument in itself is misconceived as an interpretation of the provision of Section 251 (I) (r) of the 1999 Constitution. The sub-section endows jurisdiction in addition to the preceding ones to the Federal High Court, on:
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(r) any action or proceeding for a declaration affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.
It is clear from the provision of Section 251 (I) (r) of the 1999 Constitution that its intendment is not to cover just any action for a declaration or injunction but that which ?affects the validity of any executive or administrative action or decision by the Federal Government or any of its agencies? What then is ?validity?. The compact Edition of the Oxford English Dictionary (1988) Reprint) Vol. II at page 3586 defines ?validity? to include ?The quality of being valid in law, legal authority, force or strength. The quality of being well-founded on fact or established on sound principles and thoroughly applicable to the case or circumstances, soundness and strength (of arguments proof, authority etc). Thus an action ?affecting the validity? concerns or relates to the legal testing of the fundamental character of executive or administrative decisions of the Federal Government or any of its agencies and not as in the instant case an action for ?assault, embarrassment, humiliation, loss of prestige etc? in the exclusive domain of the Law of Torts.
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In effect, in action under Section 251 (I) (r) the Court would be required to resolve three sub-questions.
(i) Whether the claim relates to the validity of any executive or administrative action or decision;
(ii) If either of the parties is the Federal Government or any of its agencies, and;
(iii) The nature of the reliefs, that is whether they are for declaration injunction, damages or specific performance.
See Nweze JSC in WEMA Securities and Finance Plc v. Nigeria Agricultural Insurance Corporation (2015) 16 NWLR (Pt. 1484) 93 at 131 ? 135.
On the other hand, the Appellant?s argument on this score could have been influenced by cases such as N.E.P.A v. Edegbero (2002) 18 NWLR (Pt. 798) 79 which considered the jurisdiction of the Federal High Court only from the perspective of the status of the parties to the effect that the Federal High Court had jurisdiction whenever the Federal Government or any of its agencies is a party to an action. This is no longer the case, for as it was further held in WEMA Securities and Finance v. Nigeria
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Agricultural Insurance Corporation case (supra) in considering the issue of jurisdiction of the Federal High Court under Section 251 (I) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) both the status of the parties (that is whether it is the Federal Government or any of its agencies) and the subject matter of the claim (that is whether it relates to any of the enumerated items in the said section) have to be looked into.
In the particular case, it was held that the position taken by the Court of Appeal to the effect that the High Court of the FCT (and by implication, State High Court, cannot entertain any matter against Respondent (NAIC) (again and by implication, any agency of the Federal Government) irrespective of the subject matter was wrong. See also: Obinwuebi v. C.B.N. (2011) 7 NWLR (Pt. 1247) 465, Oloruntoba-Oju v. Abdul-Raheem (2009) 13 NWLR (Pt. 1157) 83; N.U.R.T.W v. R.T.E.A.N (2012) 10 NWLR (Pt. 1307) 170; N.N.P.C. v. Orhiowasele (2013) 13 NWLR (Pt. 1317) 211; P.D.P v. Sylva (2012) 13 NWLR (Pt. 1316) 85; James v. I.N.E.C. (2015) 12 NWLR (Pt. 1474) 538.
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On the second arm of the Appellant?s submission, I do not also agree with the Appellant that the naming of the 1st Respondent (Defendant) as ?COMMANDER Federal Road Safety Commission? or Sector COMMANDER Federal Road Safety COMMISSION? is a misnomer. This is because the authorities are agreed that ?misnomer does not lie in giving the name of the ?wrong person? but in mistakenly giving a ?wrong name? to the right person intended to be sued? See e.g. OBASI v. MIKSON Establishment (IND.) Ltd. (2005) All FWLR (Pt. 250) 153 at 164. The most important implication of the above statement of law is that where in fact a ?wrong name? is given to any of the parties and not just the question of giving a ?wrong name? to the right person intended to be sued, that would not be a misnomer.
?Consequently, an amendment of a misnomer will only be allowed where a juristic or natural person is sued and the name is incorrectly or incompletely written. The logic here is simple. If a ?a wrong name? has been given and the name is not that of a juristic entity, the process filed would have been defective and/or incompetent ab initio and there would be indeed nothing to cure or to amend.
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In OBASI V MIKSON ESTABLISHMENT [IND] LTD. [2005] ALL FWLR [Pt. 250] 153 @ 164, the Court agreed that the Plaintiff being described as Mlkson Establishment Industries in the motion paper dated 28th June, 1998 be substituted with the name MILKSON INDUSTRIES LTD., as the proper and authentic name of the plaintiff as contained in the foreign judgment registered by Court.
However, in the case of NJOKU V U.A.C. FOODS [1999] 12 NWLR [Pt. 632] @ 557 @ 563 the writ was issued against United African Company Foods while the proposed Defendant was U.A.C Nig. Plc. The amendment was held not to be a misnomer. The Court of Appeal per M. D. Muhammad, JCA held that it will be wrong to substitute United African Company Foods with U.A.C. Nigeria Plc in the guise of a misnomer.
I think the situation in the instant case presents greater difficulty for the Appellant than the situation of the Plaintiff in the case of Njoku v. U.A.C. Foods (supra). This is because the name ?Commander Federal Road Safety COMMISSION? is clearly a non-juristic name which could not have ignited the
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adjudicatory process intended by the Appellant on his writ of summons of 3-11-2003 against the 1st Respondent (Defendant).
For these reasons, the learned trial Judge was right either on account of the inability of his Court to try the subject matter of the Appellant?s claims or on account of the Appellant?s inability to present a juristic defendant to have struck out the Appellant?s suit for lack of jurisdiction.
The only issue in this appeal is resolved against the Appellant. The Appeal lacks merit and it is accordingly dismissed.
Parties to the appeal are to bear their respective costs.
YARGATA BYENCHIT NIMPAR, J.C.A.: My learned brother, MOJEED ADEKUNLE OWOADE, JCA graciously afforded me the privilege of reading in advance the judgment just delivered and I agree entirely with the resolution and decision arrived at. The resolution brought out in clear terms the issue of a misnomer in the identification of parties before the Court and when it can activate the jurisdiction of the Court. I have nothing more to add.
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MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the advantage of a preview in draft of the judgment just delivered by my learned brother Mojeed A. Owoade, JCA. I agree entirely with him that this appeal should be dismissed. I also agree with the reasoning leading to the conclusion dismissing the appeal.
In determining the jurisdiction of the Federal High Court, notwithstanding the fact that one of the parties is an agency of the Federal Government, the subject matter of the dispute is also relevant. See OHAKIM V AGBASO (2010) 19 NWLR (pt 1226) 172, SALIM V C.P.C. (2013) 6 NWLR (pt 135) 501, UCHA V ONWE (2011)4 NWLR (pt 1237) 386 and A.G, LAGOS STATE V. EKO HOTELS LTD (2018) 7 NWLR (pt 1619) 518.
It is for these reasons and for the more exhaustive reasons given in the lead judgment that I dismiss this appeal.
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Appearances:
Chief P. Anselem EyoFor Appellant(s)
For Respondent(s)
Appearances
Chief P. Anselem EyoFor Appellant
AND
For Respondent