MR. SOLOMON OBOBA V. CHIEF REGISTRAR, HIGH COURT OF JUSTICE DELTA STATE & ORS.
(2011)LCN/4643(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 21st day of June, 2011
CA/B/1M/2007
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISIONS OF SECTION 27 OF THE SHERIFFS AND CIVIL PROCESS LAW OF BENDEL STATE 1976 AS IT REGARDS WHETHER AN ACTION CAN BE BROUGHT BY OR AGAINST THE SHERIFF
I have considered the arguments on both sides and read the laws and authorities cited by both counsel in support of their various arguments on this issue with a good measure of concern. I must say that apart from the High Court Law of Bendel State which talks of the office of the Chief Registrar of the High Court, the Sheriffs and Civil Process Law of that former state applicable to Delta State talks of the same office and designates it as the Sheriff. Now under that law, i.e. the Sheriffs and Civil Process Law, numerous responsibilities, duties and functions are assigned to the Sheriff. Sections 3, 4, 5, 8, 9, 10, 18, 19, 20, 26(1) (b) and other relevant Sections cloth the Chief Registrar of the High Court as Sheriff with immense duties and responsibilities. The law even envisages in its Section 27 under the heading ‘INTERPLEADER’ that an action can be brought by or against the Sheriff. That Section provides: “27 (1) If a Claim is made to or in respect of any property attached in execution under process of a court, or in respect of the process or value thereof, the Registrar may, upon the application of the Sheriff, as well before as after any action brought against him, issue a summons calling before the court the party at whose instance the process issued and the party making the Claim. 2. Upon the issue of the Summons, any action brought in any court in respect of the claim or of any damage arising out of the execution of the writ shall be stayed. 3. On the hearing of the Summons, the court shall adjudicate upon the claim, and shall also adjudicate between the parties or either of them and the Sheriff upon any claim to damages arising or capable of arising out of the execution of the writ by the Sheriff, and shall make such order in respect of any such claim and the costs of the proceedings as it think fit.” Clearly with these functions, duties and responsibilities in that law and with the Provisions of section 27 set out above, it cannot be seriously contended that no action can be brought against the Chief Registrar as Sheriff. PER CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A.
CAPACITY TO SUE OR BE SUED: WHETHER THE LEGAL PERSONALITY OF A NON-NATURAL PERSON TO SUE OR BE SUED CAN BE EXPRESS OR IMPLIED FROM THE STATUTE CREATING IT AND CAN EVEN BE IMPLIED FROM THE FUNCTIONS ASSIGNED TO IT BY A STATUTE
It is the law that legal personality of a non-natural person to sue or be sued can be express or implied from the statute creating it and can even be implied from the functions assigned to it by a statute. See THOMAS v. LOCAL GOVERNMENT SERVICE BOARD (1965) 1 ALL NLR 168 at 170. FAWEHINMI V. N.B.A. (No. 2) (1989) 2 NWLR (Pt. 105) 558 at 604 – 609. ABIA STATE UNIVERSITY V. ANYAIBE (1996)3 NWLR (pt. 439) 646. PER CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A.
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
MR. SOLOMON OBOBA
(Suing as Attorney of MR. SIMEON OBOBA) Appellant(s)
AND
1) CHIEF REGISTRAR, HIGH COURT OF JUSTICE DELTA STATE
(Sheriff of Delta State High Court)
2) ASSISTANT CHIEF REGISTRAR (Assistant Sheriff) HIGH COURT OF JUSTICE, DELTA STATE, WARRI JUDICIAL DIVISION.
3) ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, DELTA STATE Respondent(s)
CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A. (Delivering the leading Judgment): The Appellant in this appeal had commenced proceedings at the lower court claiming the sum of N1, 400,000.00 as outstanding balance of the sum of N3, 500,000.00 which he had paid in respect of a property advertised for sale by the Respondents which sale failed; and interest thereon.
The matter was placed on the undefended list. Following a notice of preliminary objection raised by the Respondents that the 1st and 2nd Respondents were non-juristic persons and that there was no claim against the 3rd Respondent, the lower court heard arguments on the objection and in its ruling struck out the Suit on the ground that the Respondents were non-juristic persons. This appeal is against that ruling striking out the Suit.
Two Grounds of Appeal were filed which, without their particulars, read:
“(1) The learned trial Judge erred in law when His Lordship suo moto (sic) considered the issue of whether the Attorney-General of Delta State is a juristic person and came to a conclusion that it is not without calling on the parties to address court on the issue.
(2) The learned trial Judge erred in law when His Lordship held that the Defendants/Respondents are not juristic persons capable of been (sic) sued and thereby came to an erroneous concluding (sic) in striking out the entire Suit.”
Two issues were agreed by the parties as calling for the determination of this court: They are as formulated by the learned counsel for the Appellant, thus:
“(i) Whether the learned trial Judge was right when His Lordship suo moto (sic) considered and determined the issue whether or not the 3rd Defendant/Respondent (Attorney-General and Commissioner for Justice Delta State) was a juristic person without calling upon the parties or their counsel to address court on same.
(ii) Whether the learned trial Judge was right when His Lordship held that the Defendants/Respondents are non-juristic persons and proceeded to strike out the Appellant’s case.”
In his argument on issue No. 1 above, learned counsel for the Appellant, Mr. Ovwamuedo, in his brief, submitted that it is a cardinal principle of our legal system that before a man’s cause is decided upon, he must be heard or given reasonable opportunity to be heard. He contended that the lower court held that the 3rd Respondent was not a juristic person when none of the parties was heard on the point whether or not the 3rd Respondent was a juristic person. The lower court, counsel argued, did not even raise the issue in the course of the arguments on the preliminary objection nor did the Respondents, in their objection, raise that point as shown in the notice of preliminary objection.
In his reply on this issue, learned counsel for the Respondents, Mr. Otite conceded the point and agreed with the Appellant’s counsel that the learned trial Judge was in error in holding that the 3rd Respondent was not a legal personality when that issue was not before him.
This concession is sufficient to dispose of this issue in favour of the Appellant in his complaint on Ground One of the Grounds of Appeal. However for purposes of emphasis, it is important to observe as learned counsel for the Appellant did, that the notice of preliminary objection did not raise any objection to the legal personality of the 3rd Respondent. All that the notice of preliminary objection said in relation to the 3rd Respondent was that there was no claim or complaint against the 3rd Respondent. No argument was raised by either of the parties on that point and the lower court did not even raise it, yet from the blue, as it were, the learned trial Judge at the ruling stage, and on his own, rushed to the conclusion that the 3rd Respondent was not a juristic person – a conclusion that is both falacious and erroneous in the face of the clear Provisions of Section 195 (i) of the Constitution of the Federal Republic of Nigeria 1999. This falacy and error and my earlier observations on the point, resolve the first issue in favour of the Appellant thus making Ground One of the Grounds of Appeal a success.
On the second issue, learned counsel for the Appellant in his brief argued that the Respondents were juristic persons by virtue of Sections 54 and 56 (1) of the High Court Laws of Bendel State 1976 applicable to Delta State and Sections 3 and 4 of the Sheriffs and Civil Process Law of Bendel State 1976 both of which laws create the offices of the Chief Registrar and sheriff with functions and duties assigned to him.
Replying on this issue, learned counsel for the Respondents argued that there was nothing either in the High Court Law or in the Sheriff and Civil Process Law of Bendel State that makes the Chief Registrar i.e. 1st Respondent and the Assistant Chief Registrar i.e. 2nd Respondent, legal entities.
I have considered the arguments on both sides and read the laws and authorities cited by both counsel in support of their various arguments on this issue with a good measure of concern. I must say that apart from the High Court Law of Bendel State which talks of the office of the Chief Registrar of the High Court, the Sheriffs and Civil Process Law of that former state applicable to Delta State talks of the same office and designates it as the Sheriff. Now under that law, i.e. the Sheriffs and Civil Process Law, numerous responsibilities, duties and functions are assigned to the Sheriff.
Sections 3, 4, 5, 8, 9, 10, 18, 19, 20, 26(1) (b) and other relevant Sections cloth the Chief Registrar of the High Court as Sheriff with immense duties and responsibilities. The law even envisages in its Section 27 under the heading ‘INTERPLEADER’ that an action can be brought by or against the Sheriff. That Section provides:
“27 (1) If a Claim is made to or in respect of any property attached in execution under process of a court, or in respect of the process or value thereof, the Registrar may, upon the application of the Sheriff, as well before as after any action brought against him, issue a summons calling before the court the party at whose instance the process issued and the party making the Claim.
2. Upon the issue of the Summons, any action brought in any court in respect of the claim or of any damage arising out of the execution of the writ shall be stayed.
3. On the hearing of the Summons, the court shall adjudicate upon the claim, and shall also adjudicate between the parties or either of them and the Sheriff upon any claim to damages arising or capable of arising out of the execution of the writ by the Sheriff, and shall make such order in respect of any such claim and the costs of the proceedings as it think fit.”
Clearly with these functions, duties and responsibilities in that law and with the Provisions of section 27 set out above, it cannot be seriously contended that no action can be brought against the Chief Registrar as Sheriff.
It is the law that legal personality of a non-natural person to sue or be sued can be express or implied from the statute creating it and can even be implied from the functions assigned to it by a statute.
See THOMAS v. LOCAL GOVERNMENT SERVICE BOARD (1965) 1 ALL NLR 168 at 170.
FAWEHINMI V. N.B.A. (No. 2) (1989) 2 NWLR (Pt. 105) 558 at 604 – 609. ABIA STATE UNIVERSITY V. ANYAIBE (1996)3 NWLR (pt. 439) 646.
I am, therefore, of the view that the numerous functions entrusted to the Chief Registrar as Sheriff under the aforesaid law coupled with the clear Provisions of section 27 quoted above make at least the Chief Registrar of the High court as sheriff capable of suing and being sued in relation to a subject matter such as the present one in which he performed his duties as sheriff and sold or purported to sell an attached property to the Appellant. In the instant case the Chief Registrar was sued as Sheriff of the Delta State High Court. The learned trial Judge was therefore in error when he held that the 1st Respondent could not be sued and struck out the Suit. This second issue is also resolved in favour of the Appellant. Ground two of the Grounds of Appeal also succeed.
In the final analysis, this appeal succeeds and the ruling of the lower court is hereby set aside. The case is remitted back to the High Court of Delta State to be tried on the merit before another Judge of that court. I make no order as to costs.
AMIRU SANUSI, J.C.A.: I had the advantage of reading before now the judgment delivered by my learned brother Nwosu-Iheme, JCA. The issues canvassed by parties learned counsel were ably and adequately addressed by my noble Lord. Her conclusion that the appeal is meritorious is in accord with mine. I too hereby allow the appeal and set aside the decision of the lower court. I award no costs.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I have the privilege of reading in advance the draft of the judgment just delivered by my learned brother, Nwosu-Iheme, JCA. I also agree that this appeal has merit and it is accordingly allowed. I abide by the consequential orders made in the said lead judgment.
Appearances
G.O. EMOEFEFor Appellant
AND
CHIEF V. E. OTOMIEWO ATTORNEY-GENERAL DELTA STATE, with him A.E. OGHENE JABOR D.C.L, O.F. ENENMO ASST. D.P.P, C. UMUKORO S.S.C, Y.A. ONWOCHIE S.S.C and MISS BLESSING OWEIBE S.S.CFor Respondent
