MR. KINGSLEY FRANCIS ASUQUO v. SECTOR COMMANDER, FEDERAL ROAD SAFETY COMMISSION
(2019)LCN/12836(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2019
CA/C/93/2013
RATIO
ACTION: FOR AN ACTION TO BE COMPETENT
“It has been settled in plethora of cases by superior Courts in Nigeria that for an action to be competent there must be a competent plaintiff and defendant with locus standi to prosecute and defend an action or suit. This will enable the Court or Tribunal seised of the cause or matter to embark upon adjudication over the subject matter of the action. Thus, the necessary adjuncts of a competent jurisdiction have been stated in the locus classicus that is, the case ofMADUKOLU V NKEMDILIM (1962) 1 ALL NLR (pt 4) 587 thus:- 1. It is properly constituted as regards members and qualifications of the members of the bar; and no member is disqualified for one reason or another, 2. The subject matter of the case is within its jurisdiction and there is no features in the case which prevent the Court from exercising its jurisdiction and 3. The case comes before the Court initiated by the due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.” PER MUHAMMED LAWAL SHUAIBU J.C.A.
INTERPRETATION: MISNOMER
“A 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. The rationale behind that is 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 is the case here and that would not be a misnomer. In NJOKU V U.A.C. FOODS (1999) 12 NWLR (pt 632) 557 at 564, it was held that a misnomer is a mistake in name which occurs when there is a mistake as to the name of a person who sued or be sued, or when an action is instituted by or against the wrong name of a person. In effect, the correct person is taken to Court under a wrong name, or incorrect name is given to a person in a Writ.” PER MUHAMMED LAWAL SHUAIBU J.C.A.
JURISDICTION: CONCURRENT JURISDICTION
“It settled that both the State High Court and the Federal High Courts have concurrent jurisdiction to enforce the fundamental rights provided for in the Constitution. But for a claim to qualify as falling under Fundamental rights, it must be clear that the principal relief is for the enforcement or for securing the enforcement of a fundamental right and not from the nature of the claim, to redress a grievance that is ancillary to the principal relief which itself is not ipso facto a claim of a fundamental right. This means that where the alleged breach of a fundamental right is ancillary or incidental to the substantive claim of the ordinary civil or common law nature, it is incompetent to constitute the claim as one for the enforcement of a fundamental right. See TUKUR V GOVERNMENT OF TARABA STATE (1997) 6 NWLR (pt 510) 549, SEA TRUCKS (NIG) LTD V ANIGBORO (2001) 2 NWLR (pt 696) 159 and F.R.N. V IFEGWU (Supra).” PER MUHAMMED LAWAL SHUAIBU J.C.A.
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
MR. KINGSLEY FRANCIS ASUQUO Appellant(s)
AND
SECTOR COMMANDER FEDERAL ROAD SAFETY COMMISSION Respondent(s)
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of Honourable Justice A. I. Chikere of the Federal High Court Uyo, Akwa Ibom State in suit No. FHC/UY/CS/222/2003. The judgment was delivered on 26/5/2011.
The appellant as applicant before the lower Court applied exparte for leave to apply to enforce his fundamental rights and redress the violation of same by the respondent herein.
After the grant of the said leave and by a motion on notice filed on 15/8/2003, the appellant claimed the following reliefs:-
(a) A declaration that the accosting and beating up of the applicant at mid-day on or about 26/5/2003 along the Aka Obot Idim public high way to a point of unconsciousness by the respondent either by himself and or by his officers, agents servants or persons representing his interest, on the said occasion constituted inhuman treatment, embarrassment, humiliation torture as well as an attempt to kill him;
(b) A written apology by the respondent to be published in acceptable media including the pioneer Newspaper as well as payment of an amount not less than N1 million damages to the applicant for the infringement of the applicant’s right as here above earlier stated in (b) and the early return of his wallet containing his driving particulars.
(c) A perpetual injunction restraining the respondent, his representatives, agents, officers or assigns from howsoever treating the applicant as here above earlier stated and or effecting their threats to so deal with or further harm him.
There were several reactions by the respondent including a counter affidavit to the appellant?s motion on notice filed 15/8/2003 seeking for the above reliefs and a notice of preliminary objection filed on 7/9/2010 praying for the dismissal and or striking out of the suit. The grounds of the said preliminary objection are that the respondent is not a juristic person and the Court lacks jurisdiction to entertain the suit.
Parties joined issues on the notice of preliminary objection and after hearing argument on both sides, in a reserved ruling delivered on 26/5/2003, learned trial judge declined jurisdiction and struck out the suit. Learned trial judge concluded thus:-
‘This ruling is same with suit No FHC/UY/CS/240/03.’
Dissatisfied, appellant approached this Court through a Notice of Appeal containing a solitary ground of appeal as follows:-
The learned trial judge erred in law by dismissing the suit of the Appellant upon the holding that she did not have the jurisdiction to entertain the claim in the suit as constituted.
Distilled from the solitary ground of appeal, learned appellant’s counsel, Chief P. Anselem Eyo, formulated a sole issue for the determination of the appeal as follows:-
Whether the learned trial judge was right in striking out the suit of the Appellant without examining the facts and evidence of the parties involved in the dispute.
The learned counsel for the respondent, Akpan Idorenyin Akan Esq., equally formulated a sole identical issue for the determination of the appeal. It read thus: –
Whether the learned trial judge struck out the suit without examining, the facts and evidence of the parties in the suits.
Proffering argument on the sole issue, learned appellant’s counsel contended that the reliefs sought by the appellant are for the enforcement of his fundamental rights as contained in the grounds for the reliefs sought as well as the facts upon which the reliefs are sought. Therefore, the said reliefs had nothing to do with causes relating to assault, trespass, and seizure of vehicle. He submitted that the trial Court had failed altogether to give full consideration to and determine the appellant?s case and thereby denied the appellant a fair hearing. He referred to AGUSIOBO & ANOR V OKAGBUE & ANOR (2001) 15 NWLR (pt 737) 502, UZUDA V EBIGAH (2009) 177 LRCN 52 and BORNU HOLDING CO. LTD V BOGOCO (1971) ALL NLR 325.
It was appellant’s further contention that the claim of the appellant was well founded and squarely within the jurisdiction of the Federal High Court relying on Sections 46 (1) and 251 (1) (p) and (r) of the Constitution of the Federal Republic of Nigeria, 1999 and the cases of F.R. N. V IFEGWU (2003) FWLR (pt 167) and JACK V UNIVERSITY OF AGRICULTURE MAKURDI (2004) ALL FWLR (pt 200) 1506 at 1518.
Continuing, the appellant argued that since the trial Court had failed to evaluate the evidence of the appellant and grant his reliefs, this Court is empowered vide Section 15 of the Court of Appeal Act to grant the said reliefs. He referred to AYANRU V MANDILAS LTD (2007) 142 LRCN 1036 and KHALIL & DIBBO TRANSPORT LTD V ODUMADE (2000) 80 LRCN 2768 at 2786.
On the part of the respondent, it was contended that there was no need to examine the facts and evidence of the parties involved in the dispute as these facts and evidence are already before the Court as filed in the respective claims.
It was the respondent’s further contention that the facts, claims, reliefs and prayers sought in the two cases to wit FHC/UY/CS/222/03 and FHC/UY/CS/240/03 are similar and thus the decision in one affect the other. The respondent has submitted that a defendant who is taken to Court to defend an action must necessarily be competent otherwise the action is fundamentally defective and should be struck out.
In further argument, learned counsel for the respondent submitted that a preliminary objection challenging the validity of a suit can be determined without considering the claim especially where the reason for the objection does not touch on the claim or facts of the case. He referred to DANGIDA V MOBIL PRODUCING NIGERIA UNLIMITED (2002) FWLR (pt 97) 657.
Assuming without conceding the fact that the appellant prayed for the enforcement of his fundamental rights as his main relief and not declaration for wrongful assault, trespass and seizure of the Peugeot 505, that according to the learned appellant’s counsel would not have affected the outcome of the judgment considering the fact that the preliminary objection was challenging the jurisdiction of the court to wit, that a non-juristic person was sued. Thus, the judgment of the lower Court would remained the same either way. And the error if any, did not occasioned a miscarriage of justice.
The learned counsel for the respondent concluded that the trial Court was therefore right in striking out the suit because the proper party was not sued.
I have stated that the appellant’s claim before the lower Court in suit NO. FHC/UY/CS/222/03 hinged on the alleged violation of his fundamental rights by the respondent. However, the process that gave rise to this appeal was the respondent’s notice of preliminary objection praying for the striking out of the entire suit for suing a non-juristic person.
The sole issue formulated by both the appellant and the respondent are basically the same except for matters of semantics. I therefore decided to utilize the sole issue formulated on behalf of the appellant for reason of brevity and conciseness.
Before proceeding to determine the merit of this appeal, it is pertinent to state the facts of the case albeit, briefly as adumbrated in the said appellant’s brief of argument.
The appellant a driver was conveying his master in the latter’s vehicle Peugeot 505 Saloon car on his way back from the high Court, Eket on 26/6/2003 when mid-way along Aka – Obot Idim high way, he was stopped by officers of the respondent, that one of the officers furiously opened the front passenger’s door and proceeded to attempt to remove the ignition key but the appellant resisted. At that point, the appellant’s master tried to intervene but was insulted and assaulted by agents of the respondent. The assault of the appellant’s master was the subject of suit NO FHC/UY/CS/240/03 and the alleged infraction of the appellant’s Fundamental rights by the agents of the respondent was the subject of suit NO.FHC/UY/CS/222/03 whereby a notice of preliminary objection was filed on 7/9/2010.
By virtue of Section 46(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Order 2 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, any person who alleges that any of the fundamental rights, provided for in the Constitution of the Federal Republic of Nigeria 1999 or the African Charter on Human and Peoples Right (Ratification and Enforcement) Act and to which he is entitled, has been, is being or is likely to be infringed, may apply to the Court in the State where the infringement occur for redress.
The appellant alleges that the officers of the respondent subjected him to severe beatings to a point of unconsciousness. He thus prayed for declaratory and injunctive reliefs including written apology from the respondent at the lower Court.
It settled that both the State High Court and the Federal High Courts have concurrent jurisdiction to enforce the fundamental rights provided for in the Constitution. But for a claim to qualify as falling under Fundamental rights, it must be clear that the principal relief is for the enforcement or for securing the enforcement of a fundamental right and not from the nature of the claim, to redress a grievance that is ancillary to the principal relief which itself is not ipso facto a claim of a fundamental right. This means that where the alleged breach of a fundamental right is ancillary or incidental to the substantive claim of the ordinary civil or common law nature, it is incompetent to constitute the claim as one for the enforcement of a fundamental right. See TUKUR V GOVERNMENT OF TARABA STATE (1997) 6 NWLR (pt 510) 549, SEA TRUCKS (NIG) LTD V ANIGBORO (2001) 2 NWLR (pt 696) 159 and F.R.N. V IFEGWU (Supra).
It was also held in DIRECTOR, S.S.S. V AGBAKOBA (1999) 3 NWLR (pt 595) 314 that declaratory and other reliefs can be sought and obtained to enforce and protect fundamental rights in a High Court.
The appellant’s main contention in this appeal is that the claims set out and reproduced by the learned trial judge in the judgment were not the reliefs sought by the appellant in the suit culminating to this appeal.
The fundamental rights Enforcement Procedures is sui generis and any claim touching on violation of rights to personal liberty guaranteed by the Constitution are usually made pursuant to it. The rules are specifically enacted to govern or regulate actions for enforcement or the protection of fundamental rights guaranteed by the Constitution. See F.B.N. PLC V A.G. FEDERATION (2018) 7 NWLR (pt 1617) 121 and JACK V UNIVERSITY OF AGRICULTURE, MAKURDI (Supra). In this case, the appellant?s claim touches on violation of his fundamental rights guaranteed in Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the applicable rules that govern or regulate the action is the Fundamental Rights (Enforcement Procedure) Rules 2009.
I have stated elsewhere in this judgment that the cause of action in this suit also produced yet another suit NO. FHC/UY/CS/240/03 involving the respondent and the appellant?s master. In considering the suit NO FHC/UY/CS/222/03 which gave rise to this appeal, learned trial judge made copious reference to the claim in the sister suit NO. FHC/UY/CS/240/03 at page 267 of the record of this appeal as follows:-
The plaintiff in a Writ of Summons and 43 paragraphs amended statement of claim, claimed against the Defendant thus:-
1. A declaration that it was wrongful for the defendant whether acting by themselves or through their officers, agents or representatives howsoever to publicly assault the plaintiff mid-way on 26/6/2003 along Uyo Obot Idim Road by the champion Breweries within Uyo Capital City, Uyo, Akwa Ibom State and to forcefully trespass into and or snatch or seize his Peugeot 505 saloon car NO.AA286 UYY from his driver.
2. Claim for special damages
3. N 1 million exemplary/general damages for the assault, embarrassment, humiliation, loss of prestige and other inconveniences thereby caused to the plaintiff by the defendant.
It was strenuously argued on behalf of the appellant that the learned trial judge had confused the facts and processes in suit NO. FHC/UY/CS/240/03 in giving judgment in suit NO.FHC/UY/CS/222/03 to strike out the suit in its entirety.
There is no gainsaying the fact that a Court must confine itself to the determination of only cases presented to it by parties. And where the Court makes a case different from the one the parties call it to consider, the Court is duty bound to call for and consider the parties impute on the new case before taking a decision. In other words, Court is to determine and decide disputes brought before it in accordance with the evidence, both oral and documentary only in particular, as argued by the parties. See F.A.T.B. V EZEGBU (1993) 6 NWLR (pt 297)1. It is generally a plaintiff in a case who sets out what he is claiming and his success or failure must be decided on the basis of his claim.
In this case, the decision on appeal was not predicated on the appellant’s claim at the lower Court but on the respondent?s notice of preliminary objection challenging the competence of the appellant’s suit. The grounds of the objection as stated earlier are that the respondent is a non-juristic person and the lower Court had no requisite jurisdiction to hear and determine the suit. It is therefore clear that although the learned trial judge had reproduced the plaintiff’s claim in the sister suit but its decision was based on the Notice of Preliminary objection set up by the parties themselves. It is thus my respectful view that the trial Court did not embark on an exercise in excess of what it was called upon to determine between the parties. Consequently, the case of AGUSIOBO V OKAGBUE (Supra) cited and relied upon by the appellant?s counsel is of no moment.
The general rule is that jurisdiction of the Court is determined by the nature of the plaintiff’s claim. However, there are other several factors that determines the jurisdiction of the Court not necessarily having recourse to the claim before the trial Court. I cannot but agree with the submission of the respondent that the validity of the institution of a suit can be determined without considering or making reference to the Writ or the statement of claim especially where the reason for the objection does not touch on the claim of the plaintiff as in this case.
Having arrived at the conclusion that the judgment of the lower Court was based on what it was called upon to decide by the parties and that it was confined to the issues raised in the Notice of preliminary objection; the next germane issue to be considered is whether the respondent is a non-juristic person.
It has been settled in plethora of cases by superior Courts in Nigeria that for an action to be competent there must be a competent plaintiff and defendant with locus standi to prosecute and defend an action or suit. This will enable the Court or Tribunal seised of the cause or matter to embark upon adjudication over the subject matter of the action. Thus, the necessary adjuncts of a competent jurisdiction have been stated in the locus classicus that is, the case ofMADUKOLU V NKEMDILIM (1962) 1 ALL NLR (pt 4) 587 thus:-
1. It is properly constituted as regards members and qualifications of the members of the bar; and no member is disqualified for one reason or another,
2. The subject matter of the case is within its jurisdiction and there is no features in the case which prevent the Court from exercising its jurisdiction and
3. The case comes before the Court initiated by the due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in the proceedings are a nullity however well conducted and decided, the defect is extrinsic to the adjudication. Therefore, one of the mandatory features and important element of initiation of an action or suit by due process is that the plaintiff/claimant and the defendant must be able and capable of instituting an action or defending it.
Parties to an action must be legal or natural persons having the capacity to sue or be sued or defend the action otherwise the action will be incompetent and by extension, the Court seised of the action or suit will be devoid of jurisdiction to entertain same. See WHITE DIAMOND PROPERTY DEVELOPMENT CO. V TRADE WHEELS LTD (2018) LPELR 44572.
As a general rule, only natural persons that is, human beings and juristic or artificial persons such as body corporate are competent to sue or be sued. And 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 V GENERAL MANAGER G.B. OLLIVANT LTD & ANOR (1961) 1 ALL NLR 116.
The law however recognizes that apart from natural and juristic persons, some non-legal entities can sue or be sued eo nomine. Thus, no action can be brought by or against any party other than a natural person or persons unless such a party has been given by a statute, expressly or impliedly or the common law either legal persona under the name by which it sues or issued e.g. corporation sole and aggregate bodies incorporated by foreign law and quasi ? Corporation constituted by Act of parliament or right to sue or be sued by that name e.g. partnership trade unions, friendly societies and foreign institutions authorized by their own law to sue or be sued but not incorporated. See FAWEHINMI V NBA (NO 2) (1989) 2 NWLR (pt 105) 558 at 559.
Learned counsel for the appellant did not dissipate any energy in agreeing that the respondent was a non-juristic person but he was quick to submit that suing a wrong party is not a sufficient reason for the lower Court to decline jurisdiction. He relied on the decisions of this Court in the cases of MAILAFIA V VERITAS INSURANCE (1986) 4 NWLR (pt 38) 802 and OLOKUN V AIYELA BEGAN (2004) FWLR (pt. 192) 153 at 160 in contending that the misdescription of an entity in the name of one rather than the other is merely a misnomer.
A 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. The rationale behind that is 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 is the case here and that would not be a misnomer. In NJOKU V U.A.C. FOODS (1999) 12 NWLR (pt 632) 557 at 564, it was held that a misnomer is a mistake in name which occurs when there is a mistake as to the name of a person who sued or be sued, or when an action is instituted by or against the wrong name of a person. In effect, the correct person is taken to Court under a wrong name, or incorrect name is given to a person in a Writ.
In the instant case, Commander Federal Road Safety Commission is a non-juristic person and as such it cannot be sued.
In the light of the above, the learned trial judge was right to have struck out the appellant’s suit on the account that the mandatory features and important element of initiating the action by due process to wit, incapability of the respondent to defend it.
The sole issue in this appeal is therefore resolved against the appellant. Accordingly, the appeal is dismissed and the suit NO.FHC/UY/CS/222/03 is struck out for lack of jurisdiction.
I make no order as to costs.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother M. L. Shuaibu, JCA. I agree with the reasoning and conclusion and I also agree that the appeal be dismissed.
YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the opportunity of reading in draft the judgment just delivered by my learned brother, MUHAMMAD LAWAL SHUAIBU, JCA and I agree with the reasoning and conclusion arrived at in the judgment. I have nothing more to add.
I also abide by all the orders made therein.
Appearances:
Chief P.C. Amsalem Eyo with him, Ikwo and Idensit AdamsFor Appellant(s)
Chibuzor ManjimobiFor Respondent(s)
