ROBERT ESIRI & ORS v. THE REGISTERED TRUSTEES ANOINTED WORD BIBLE MINISTRIES & ANOR
(2018)LCN/12351(CA)
In The Court of Appeal of Nigeria
On Thursday, the 1st day of February, 2018
CA/B/232/2005
RATIO
COURT AND PROCEDURE: WHO IS A NATURAL/JURISTIC PERSON
“No action can be commenced by or against any party except a natural person(s) save such a party has been accorded by a statute, expressly or impliedly, or by common, either a legal personality under the name by which it sues or is sued or right to sue or be sued by that name. It stems from these, that where either of the parties is not a legal person, capable of exercising legal rights and obligations in law, the action is plagued by incompetence and liable to be struck out, see Agbonmagbe Bank Ltd. v. General Manager G.B. Olivant Ltd. (1961) 2 SCNLR 317; Kate Ent. Ltd. v. Daewoo Nig. Ltd. (1985) 2 NWLR (Pt. 5) 116; Fawehinmi v. NBA (No 2) (1989) 2 NWLR (Pt.105) 558; Ataguba & Co. v. Gura (Nig) Ltd. (2005) 8 NWLR (Pt. 927) 429; A. -G., Anambra State v. A. – G., Fed (2007) 12 NWLR (Pt. 1047) 4: Admin./Exec., Estate, Abacha v. Eke-Spiff (2009) 7 NWLR (Pt. 1139) 97; SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (Pt. 1252) 317; M.M.A, Inc. v N.M.A. (2012) 18 NWLR (Pt. 1333) 506; B.B Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt 1529) 206; Interdrill (Nig) Ltd v. U.B.A. Plc (2017) 13 NWLR (Pt 1581) 52.” PER OBANDE FESTUS OGBUINYA, J.C.A.
COURT AND PROCEDURE: WHETHER THE COURT OF LAW IS AN ADVISORY INSTITUTION
“A Court of law, however, is not an advisory institution but an institution with a duty to settle live issues forwarded in accordance to the law; and for its definitive resolution, in a competently constituted suit; that being so, I shall speak no more” PER MOHAMMED AMBI-USI DANJUMA J.C.A
JURISDICTION: ON ISSUE OF JURISDICTION
“It evinces a jurisdictional question. The law mandates the Courts to accord prime attention to issue of jurisdiction first where it germinates from any proceedings, see Okwu v. Umeh (2010) 4 NWLR (Pt. 1501) 120; Brittania-U (Nig) Ltd. v. Seplat Pet. Dev. Co. Ltd. (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Ngere v. Okuruket ‘xiv’ (2017) 5 NWLR (Pt.1559) 440. I will pay total loyalty to this legal commandment so as not to insult the law.”PER OBANDE FESTUS OGBUINYA, J.C.A.
JUSTICES
UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
Between
1. ROBERT ESIRI
2. KAYODE AKINDELE
3. MRS. MABEL BIANEYIN
4. JOHN OGEFERE
5. ONAJOMO ESIRI
6. M. O. BIANEYIN
(Suing as administrators of the estate of late Peter Esiri) Appellant(s)
AND
1. THE REGISTERED TRUSTEES ANOINTED WORD BIBLE MINISTRIES
2. REV. D. O. A. AKPOSOSO Respondent(s)
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment):
This appeal pries into the correctness of the decision of the High Court of Delta State, holden at Warri (hereinafter addressed as “the lower Court”), coram judice: P. O. Onajite-Kuejubola, J., in Suit No. W/44/2002, delivered on 25th August, 2004. Before the lower Court, the appellants and the respondents were the plaintiffs and the defendants respectively.
The facts of the case, which transformed into the appeal, are submissive to brevity and easy appreciation. One Peter Esiri, the owner of No. 31 Eboh Road, with an uncompleted two-storey building thereon, died intestate on 3rd October, 1998. The property is covered by certificate of occupancy No. BDSR 1892 issued to the deceased on 1st October, 1982. On his demise, members of his family appointed the appellants as customary administrators of his estate. The appellants alleged that the deceased, during his life time, allowed the first respondent to stay on the premises as a non-rent paying tenant. When the appellants wanted to complete the structure on it, they decided to take possession of the premises through the process of Court and the respondents claimed ownership of it. Sequel to that, the appellants, via a writ of summons filed on 14th February, 2002, beseeched the lower Court and tabled against the respondents: a declaration that they were entitled to possessory and statutory right of occupancy over the property, an order of forfeiture, possession and mense profit from the first respondent and on order of perpetual injunction restraining the respondents, their agents, servants or privies from trespassing on it.
As expected, the respondents joined issue with the appellants and denied liability. They claimed that the late Peter Esiri had transferred ownership of the property to them during his life time. As a result, they counter-claimed and solicited against the appellants: a declaration that they were entitled to possessory and statutory right of occupancy over the property, an order of Court compelling the appellants to execute deed of grant (gift) of it in their favour and an order of perpetual injunction restraining the appellants, their agents, servants or privies from trespassing on it.
Following the rival claims, the lower Court proceeded to a full-scale determination of the action. In proof of their case, the appellants called one witness and tendered documents: exhibits A-C2. In disproof of the case, the respondents fielded three witnesses and tendered documents: exhibits D-K. At the closure of evidence, the parties, qua counsel, addressed the lower Court. In a considered judgment, delivered on 25th August, 2004, found at pages 51-67 of the record, the lower court dismissed the appellants’ claims and granted the respondents’ counterclaim.
The appellants were dissatisfied with the decision. Hence, on 2nd September, 2004, they lodged a 5 – ground notice of appeal, seen at pages 68, 69 and 70 of the record. Subsequently, the appellants, with the leave of the Court, filed, on 5th November, 2014, a further amended notice of appeal, hosting 11 grounds, and prayed this Court: “To allow the Appeal, set aside the Judgment of the lower Court, strike out or dismiss the counter claim of the Respondents and grant the Plaintiff/Appellants claims”.
Thereafter, the parties filed and exchanged their briefs of argument in line with the rules regulating the hearing of civil appeals in this Court. The appeal was heard on 14th November 2017.
During its hearing, learned counsel for the appellants, O. Akpogbenbor, Esq., adopted the amended appellants’ brief of argument, filed on 2nd December, 2016, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the respondents, T. C. Williams, Esq., adopted the respondents’ brief of argument, filed on 15th February, 2017, as forming his reactions against the appeal. He urged the Court dismiss it.
The appellants, in their amended brief of argument, distilled four issues for determination to wit:
1. Was the Learned Trial Judge right in entertaining and granting the counter-claim of the Respondents when the 1st Respondent was shown to be an unincorporated Association or a non-juristic entity?
2. Was the Learned Trial Judge right in admitting and relying on exhibit “K” in passing judgment against the Appellants and in favour of the Respondents?
3. The Defendants/Respondents having entitled (sic) in their pleading and evidence in the lower Court that the property in dispute was owned by Late Peter Esiri (the predecessor in title to the Appellant), was the Learned Trial Judge right in still placing the burden of proof in this case on the Appellants and did the approach adopted by the Learned Trial Judge in evaluating the evidence in this case not occasion a miscarriage of justice to the Appellants?
4. Was the purported gift of the subject matter of this case to the Defendants/Respondents without the prior consent of the Governor of Delta State sought and obtained by late Peter Esiri not invalid null and void by virtue of Sections 22 and 26 of the Land Use Act, 1978?
Admirably, the respondents adopted the four issues crafted by the appellants.
Arguments on the issues:
Issue one.
Learned counsel for the appellant submitted that the first respondent was not a juristic person and the lower Court should have struck out its name. He relied on Abu v. Simeon (1995) 8 NWLR (Pt. 413) 353; Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt.105) 558; Abakaliki L. G. C. v. Abakaliki Rice Mills Owners Enterprises of Nig. (1990) 6 NWLR (Pt. 155) 182; The Principal Secondary School Ikachi v. Igbudu (2005) 2 FWLR (Pt. 261) 261; Order II Rule 5 (2) of the High Court (Civil Procedure) Rules, 1988 of the old Bendel State.
He posited that it was wrong to grant the counter-claim when the first respondent was not a juristic person. He referred to Maersk Line v. Addide lnvest. Ltd (2002) FWLR (Pt. 126) 608. He noted that the point was a jurisdictional issue and the failure to raise it was of no consequence. He cited Nware v. Amauwa (1991) 8 NWLR (Pt. 207) 68; Nigerite Ltd. v. Dalami Nig. Ltd. (1992) 7 NWLR (Pt.253) 251; NPS v. Mordi (2008) 12 WRN 99. He reasoned that relief two would be incapable of execution. He referred to Mohammed v. Wargester Nig. Ltd. (2002) FWLR (Pt. 127) 1078. He stated that unincorporated body could acquire and own property through human beings acting its trustees.
He relied on Anyaegbunam v. Osaka (2000) 10 WRN 108. He insisted that the purported gift of the property to the first respondent was wrong in law and the appellants’ claim should have been granted. On behalf of the respondents, learned counsel conceded that the first respondent was in the process of been incorporated as shown in exhibits J and J1. He explained that the lower court was right in granting the counter-claim since there was a second respondent who was the chairman of board of trustees who acted as a representative of the first respondent. He relied on Kyari v. Alkali (2001) 8 SCM 48. He noted that an unincorporated body was allowed to appoint trustees to act in that capacity and could own property. He referred to Anyaegbunam v. Osaka (2000) FWLR (Pt. 27) 1942; UBN v. Ntuk (2003) 16 NWLR (Pt.875) 183; Fawehinmi v. NBA (No. 2) (supra); Abakaliki LGC v. Abakaliki R.M.O (supra).
He observed that exhibit K mentioned board of trustees and the second respondent represented the first respondent who held the grant for it. He posited that any defect in exhibit K could be rectified by the lower Court to reflect the intention of the late Peter Esiri. He relied on Bassil v. Fajebe (2001) 7 SCM 32. He described relief 1 in the counter-claim as declaratory – to declare the state of affairs: that the property was given to the first respondent. He cited International ile Ind. Ltd. v. Aderemi (1999) 6 SCNJ 46. He added that relief 2 was for specific performance of the grant by the appellants since Peter Esiri was late. He referred to International ile Ind. Ltd. v. Aderemi (supra).
Resolution of the issue.
In due fidelity to the injunction of the law, I will attend to issue one first. The reason is plain. It evinces a jurisdictional question. The law mandates the Courts to accord prime attention to issue of jurisdiction first where it germinates from any proceedings, see Okwu v. Umeh (2010) 4 NWLR (Pt. 1501) 120; Brittania-U (Nig) Ltd. v. Seplat Pet. Dev. Co. Ltd. (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Ngere v. Okuruket ‘xiv’ (2017) 5 NWLR (Pt.1559) 440. I will pay total loyalty to this legal commandment so as not to insult the law.
The issue, which falls within a narrow compass, quarrels with the lower Court’s entertainment and grant of the respondents’ counter-claim when the first respondent is not a juristic person. In other words, the appellants chief grievance is that the first respondent is not a juristic personality to sustain the grant of the counter-claim.
By way of prefatory remarks, a juristic person is an entity armed with the capacity to ventilate his (its) complaints in judicio.
Generally, it is only natural persons, id est, human beings and juristic or artificial persons such as body corporate/corporation, an artificial being which is invisible, intangible and exist only in the contemplation of the law, that are imbued/infused with the capacity to sue and be sued in law Court. The jural units, which the law has cloaked with legal personality, are: human beings; incorporated companies, corporate sole with perpetual succession, trade unions, partnerships and friendly societies. No action can be commenced by or against any party except a natural person(s) save such a party has been accorded by a statute, expressly or impliedly, or by common, either a legal personality under the name by which it sues or is sued or right to sue or be sued by that name. It stems from these, that where either of the parties is not a legal person, capable of exercising legal rights and obligations in law, the action is plagued by incompetence and liable to be struck out, see Agbonmagbe Bank Ltd. v. General Manager G.B. Olivant Ltd. (1961) 2 SCNLR 317; Kate Ent. Ltd. v. Daewoo Nig. Ltd. (1985) 2 NWLR (Pt. 5) 116; Fawehinmi v. NBA (No 2) (1989) 2 NWLR (Pt.105) 558; Ataguba & Co. v. Gura (Nig) Ltd. (2005) 8 NWLR (Pt. 927) 429; A. -G., Anambra State v. A. – G., Fed (2007) 12 NWLR (Pt. 1047) 4: Admin./Exec., Estate, Abacha v. Eke-Spiff (2009) 7 NWLR (Pt. 1139) 97; SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (Pt. 1252) 317; M.M.A, Inc. v N.M.A. (2012) 18 NWLR (Pt. 1333) 506; B.B Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt 1529) 206; Interdrill (Nig) Ltd v. U.B.A. Plc (2017) 13 NWLR (Pt 1581) 52.
For a dispassionate settlement of the stubborn issue, I have consulted the record, the spinal cord of the appeal, particularly at the residence of the respondents’ evidence wrapped between pages 33 – 37 and 45A – 45E thereof. The respondents’ evidence revealed, that the first respondent “is not yet properly registered.” Exhibits J and J1 , newspaper publications, amply, disclose that the first respondent was/is in the process of registration. Learned counsel, in the respondents’ brief of argument, conceded, an act of admirable advocacy worthy of emulation, that the first respondent was/is unregistered. These are a quintessence of an undiluted admission that the first respondent was/is a non-juristic entity. In other words, the respondents, on their own showing, exposed the juristic status of the first respondents. It flows, discernible from the respondents’ own evidence, that the juristic personality of the first respondent was/is still in incubation on the footing of the inchoate registration. Put bluntly, the first respondent, as constituted, was/is not clothed with the garment of legal persona and, in the eyes of the law, cannot be sued or sue eo nomine. In the face of the first respondent not being a legal persona ficta, the action, which gave birth to the appeal, vis-a-vis the first respondent, was/is tainted with incompetence.
In a spirited bid to escape the action being marooned in the intractable web of incompetence, following the non-juristic entity of the first respondent, the respondents weaved the defence that the second respondent defended and prosecuted the claim and counter-claim respectively in a representative capacity. It admits of no argument, that a Court of law, either trial or appellate, is licenced to make an order of representation once the pleadings and evidence establish, conclusively, a representative capacity and an action fought in that capacity even where no amendment to reflect that capacity was applied for and obtained. This hallowed principle of law has been sanctioned in a galaxy of ex cathedra authorities, see Kyari v. Alkali (supra), In re: Adeosun (2001)8 NWLR (Pt.714)200; Sapo v. Sunmonu (2010) 11 NWLR (pt.1205) 374/(2010) 5 SCNJ 1.
However, this ageless rule of adjectival law is lame regarding the facts and circumstance of this case. To begin with, by virtue of exhibit K, upon which the respondents erected their case, the property in dispute was granted to the first respondent only with the appellation: Anointed Word Bible Ministries (a.k.a Kingsway Chapel). put simply, it was not a joint gift inter vivos which incorporated the second respondent. I had found, based on the viva voce and documentary evidence, that the first respondent was/is derobed of juristic personality and disabled, in the sight of the law, from suing or being in a Court of law. Incidentally, there are no extenuating circumstances, furnished before this Court, to propel/stimulate me to disturb that solemn finding reached with the aid of the law.
The consequence is far-reaching. In so far as the first respondent was/is not a legal entity, the second respondent will not be invested with the power to act in a representative capacity for and on its behalf. It is my humble view, that a juristic person cannot be endowed with the capacity to represent a non-juristic entity and vice versa. Such a bizarre situation will not only smell of injustice, but compromise or embrace illegality which the law, seriously, frowns upon, see Admin./Exec., Estate, Abacha v. Eke – Spiff (supra) at 127.
It is a notorious principle of law, which is, deeply, rooted in the corpus of our jurisprudence, that no one puts something on nothing and expects it to stand, see UAC v. Macfoy Co. Ltd. (1962) AC 152; CCB Plc. V. Ekperi (2007) 3 NWLR (Pt. 1022) 493; Alsthom v. Saraki (2005) 3 NWLR (Pt. 911) 208; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592. In the Latin days of the law, it was couched in the maxim: Lex non cogit ad impossibila – the law does not command the impossible, see Lasun v. Awoyemi (2009) 16 NWLR (Pt. 1168) 513.
To this end, the non-juristic status of the first respondent pollutes the competence of the entire suit: the appellants’ main claim and the respondents’ counter-claim. Both stand inpari delicto vis-a-vis the non-juristic personality of the first respondent, Nwaolisah v. Nwabufoh (2011) 14 NWLR (Pt. 1268) 600. By the appellants’ invention of the issue, they are likened to a man who, while praying, fervently, for long life, yet carries, in his surface pocket, a time bomb which, on detonation, would put an end to his precious and priceless life, see Yoye v. Olubode (1974) 9 NSCC 409 at 414. The caustic effect of the first respondent not being crowned with the toga of juristic personality engulfs and exterminates their claim.
My noble Lords, for the sake of completeness, the respondents placed high premium on Anyaegbunam v. Osaka (supra) to solidify their stance. I have perused the authority with the finery of a tooth comb. ?Interestingly, it is obedient to comprehension. In that case, the appellant executed a deed of gift in favour of the six respondents, natural persons/human beings, as members and appointed trustees of The Light of Christ Praying Band, Onitsha, Anambra State. In the case in hand, the gift was made to the Anointed Word Bible Ministries (a.k.a Kingsway Chapel). The natural persons, who constituted its members, were not the donees. In essence, the facts of the two cases are not in pari materia, but distinguishable. The ancient doctrine of stare decisis, evolved by the Courts to ensure certainty in law, which would have compelled me to kowtow to the Anyaegbunam case, thrives where facts of cases are on all fours. It takes to flight in the presence of incompatible facts. Since the facts of the two cases are disharmonious, in material and fundamental aspects, I dishonour the enticing invitation of the respondents to bow to the decision in Anyaegbunam case so as not to offend the law.
In the interest of clarity, I must place on record, pronto, that since the lower Court was not clad with the jurisdiction to try the matter ab initio, this Court is stripped of the vires to hear the appeal, see, Ikechukwu v. Nwoye (2015) 3 NWLR (Pt. 1446) 367: Yar’adua v. Yandoma (2015) 4 NWLR (Pt.1448) 123; Lafferi Nig. Ltd. v. NAL Merchant Bank (2015) 14 NWLR (Pt. 1478) 64; Egbuchu v. CMB Plc. (2016) 8 NWLR (Pt. 1513) 192. The reason is not far-fetched. In the view of the law, the jurisdiction of a higher/appellate Court in a matter is tied to that of a lower Court where an appeal emanates. In effect, the want of jurisdiction of the lower Court over the suit contaminates the jurisdiction of this Court to hear the appeal. Put the other way round, the appeal, as constituted, is infested with incompetence. The net and dismal effect is that the entire proceedings and decision of the lower Court, delivered on 25th August, 2004, were/are mired in the intractable vortex of nullity.
The dire consequence of a nullity is far-reaching in adjudication. If a decision or proceeding is smeared by nullity, it is void and taken as if it was never given or made, see Okoye v. Nigerian Const, & Furniture Co, Ltd. (1991) 6 NWLR (pt. 199) 501; Bello v. INEC (2010) 8 NWLR (Pt. 1196) 342 Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452; Mamman v. Hajo (2016) 8 NWLR (pt. 1515) 411. Moreover, such a decision or proceeding, in the province of the law, bestows no enforceable right on its beneficiary party who possesses it nor does it impose any obligations on its victim party, see Ajiboye v. Ishola (2006) 13 NWLR (pt. 998) 628; Oyeneyin v. Akinkugbe ?(2010) 4 NWLR (Pt. 1184) 265. In essence, the decision of the lower Court is worthless in the hands of the respondents. Since it was enmeshed in a nullity, it was/is barren to give birth to a viable appeal. In sum, both the suit and the appeal are rendered incompetent.
Having found, after due consultation with the law, that this Court is divested of the jurisdiction to hear the appeal, the law makes it idle to consider the other two issues canvassed by the feuding parties. In Ikechukwu v. FRN (2015) NWLR (Pt. 1457) 1 at 21, Nweze, JSC, incisively, declared:
“It cannot be gainsaid that, as a general rule, an intermediate Court, like the lower Court, (Court of Appeal) has a duty to pronounce on all the issues before it…”
However, there are some exceptions to the above rule that applies to the lower Court, as an intermediate Court. Thus, for example, where the said Court, as an intermediate court, decided that it lacks jurisdiction in an appeal before it, it then becomes unnecessary to consider other issues once it has taken a decision on the question of jurisdiction. See, also, Oni v. Cadbury Nig. Plc (2016) 9 NWLR (pt. 1516) 80.
Where a Court is drained of the jurisdiction to hear a matter, the order it makes is plain. It is one of striking out, see Okolo v. UBN Ltd. (2004) 3 NWLR (Pt. 859) 87; Gombe v. P.W. (Nig) Ltd. (1995) 6 NWLR (Pt. 402); CGG v. Ogu (2005) 8 NWLR (pt.927) 366; Uwazurike v. A. -G., Fed. (2007) 8 NWLR (Pt. 1035) 1; WAEC v. Adeyanju (2008) NWLR (Pt. 1092) 270; Dairo v. UBN Plc. (2007) 16 NWLR (Pt.1071) 347; Ikechukwu v. FRN (supra).
On the whole, in due obeisance to the tenet and spirit of the law, I strike out the appeal for being incompetent. Consequentially, Suit No. W/44/2002, which metamorphosed into the incompetent appeal, is struck out on account of incompetence. The feuding parties shall bear the respective costs they incurred in the prosecution and defence of the doomed appeal.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had read before now, the judgment just delivered by my learned brother Obande Festus Ogbuinya, JCA. I agree that when a Court lacks jurisdiction to entertain the suit before it, there is only one thing the Court can do. That is striking out the suit. This is what this appeal deserves. This appeal is struck out as the Court is bereft of jurisdiction to adjudicate.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have, before now, been availed the privilege of a preview of the Judgment just rendered by my learned brother, Obande Festus Ogbuinya, JCA, striking out this appeal and the suit progeniting same for the incompetence of the said suit on the ground of the non-juristic personality of the 1st Defendant/1st Respondent herein; which rubbed adversely on the jurisdiction of both the trial Court and this Court to adjudicate the suit and this appeal.
I wholly agree with this reasoning und the conclusion arrived at; for that is the settled position of the law. Even the suit against the 2nd Respondent would have disclosed no cause of action.
Why the plaintiff at the trial Court had not exploited the possibility of a challenge to the validity of the gift by a challenge of its validity by an originating processes or in an Administration of Estate/probate or wills or interpretation of the Deed of gift in a suit may be a personal decision. A Court of law, however, is not an advisory institution but an institution with a duty to settle live issues forwarded in accordance to the law; and for its definitive resolution, in a competently constituted suit; that being so, I shall speak no more; other than to concur in the well-horned leading judgment and abide by the consequential order therein decreed.
Appearances:
O. Akpogbenobor, Esq.For Appellant(s)
T. C. Williams, Esq.For Respondent(s)
