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THE LEADER, ETIM EKPO LEGISLATIVE COUNCIL v. AKPAN & ANOR (2021)

THE LEADER, ETIM EKPO LEGISLATIVE COUNCIL v. AKPAN & ANOR

(2021)LCN/15627(CA)

In The Court of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, March 05, 2021

CA/C/15/2020

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

THE LEADER, ETIM EKPO LEGISLATIVE COUNCIL APPELANT(S)

And

1. HON. USEN JOHN AKPAN 2. AKWA IBOM STATE INDEPENDENT ELECTORAL COMMISSION (AKISIEC) RESPONDENT(S)

 

RATIO

DEFINITION OF “JURISTIC PERSONALITY”

A legal person or juristic personality is any subject matter other than a human being to which the law attributes personality. See Nigerian Nurses Association & Anor v. AG. Federation & Ors. (1981) LPELR – 2027-SC. A juristic or legal personality can only be denoted by the enabling law. This can either be the Constitution or a statute. See Abubakar & Ors. v. Yar’adua & Ors (2008) LPELR – 51SC. PER ABIRIYI, J.C.A.

WHETHER OR NOT A NON-JURISTIC PERSON CAN SUE AND BE SUED

It is the law that a body not vested with juristic or legal personality cannot sue or be sued. See Abubakar & Ors. v. Yar’adua & Ors (supra) at page 51 and Attorney-General of the Federation v. All Nigerian Peoples Party & Ors. (2003) LPELR – 630SC. Section 8(1) of the Local Government Administration Law of Akwa Ibom State 2017 relied upon by the 1st Respondent’s counsel did not make the Leader or Deputy Leader a legal or juristic person who can sue or be sued as contended by learned counsel for the 1st Respondent.  PER ABIRIYI, J.C.A.

 

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 9th July, 2019 in the High Court of Akwa Ibom State, sitting at Abak.

In the High Court (the Court below), the 1st Respondent was the Claimant. The Appellant and the 2nd Respondents were the defendants.

The 1st Respondent took out an originating summons against the appellant and the 2nd Respondent for the determination of certain questions in respect of the declaration of his seat as a Councilor vacant.

He also sought for several declaratory reliefs and orders of the Court below including an order setting aside the declaration of the seat vacant for being illegal, unconstitutional and a breach of his right to fair hearing.

The originating summons was supported by an affidavit and an exhibit attached thereto. After the service on him of the counter affidavit of the Appellant and the 2nd Respondent, the 1st Respondent filed a further affidavit in response.

The case of the 1st Respondent as can be made out from the affidavit in support of the originating summons in summary is that he was a councilor in the Etim Ekpo Legislative Council, Akwa Ibom State on the platform of the People’s Democratic Party (PDP). On 5th November, 2018, he received a phone call from a member of the council. The member informed the 1st Respondent that the Appellant had declared the seat of the 1st Respondent vacant on the allegation that he had defected from PDP to All Progressive Congress (APC). Thereafter, the Appellant instructed security officials to prevent the 1st Respondent from attending the sittings of the Council.

According to the 1st Respondent, the Appellant did not give him the opportunity to defend himself.

He denied receiving the vacation of the seat notice and letter from the clerk of the council.

The office of Leader is a creation of statute and thus he is a juristic person.

The Appellant’s and 2nd Respondent’s defence was that the 1st Respondent’s seat was vacated in Etim Ekpo Legislative Council as the 1st Respondent had defected to the APC. That it was the clerk of the Council that served the notice and letter of vacation of seat of the 1st Respondent on the 1st Respondent and not the Appellant.

​That the Leader, Etim Ekpo Legislative Council is not a juristic person and cannot be sued.

The Court below considered the affidavit evidence before it and the written addresses of learned counsel for the parties. It found the claim of the 1st Respondent established and granted the reliefs sought by him.

The Appellant appealed to this Court by a notice of appeal dated and filed on 26th August, 2019. On 15th June, 2020, this Court granted the Appellant extension of time within which to seek leave to appeal, leave to compile record out of time and an order deeming the already compiled and transmitted record duly compiled and transmitted.

The notice of appeal has seven grounds of appeal. From the seven grounds of appeal, the Appellant presented the following four issues for determination:
i. WHETHER THE TRIAL COURT WAS CLOTHED WITH JURISDICTIN TO HEAR AND DETERMINE THE SUIT, THE SUBJECT MATTER OF THIS APPEAL, WHEN FACTS AND CIRCUMSTANES OF THE CASE SHOWED THAT THE TRIAL COURT HAD NO JURISDICTION TO ENTERTAIN THE CASE (Grounds 1, 2 and 6).
ii. IN VIEW OF THE EVIDENCE BEFORE THE COURT, WHETHER THE VACATION OF THE SEAT OF THE 1ST RESPONDENT IN THE ETIM EKPO LEGISLATIVE COUNCIL WAS NOT IN ACCORDNACE WITH THE PROVISIONS OF THE LAW (Ground 3).
iii. WHETHER THE TRIAL COURT WAS NOT WRONG WHEN IT REFUSED TO STRIKE OUT THE SUIT OR IN THE ALTERNATIVE ORDER PLEADINGS TO BE FILED IN VIEW OF THE CONTENTIOUS AND RADICAL FACTS INHERENT IN THE CASE WHICH REQUIRED CALLING OF ORAL EVIDENCE FOR THE JUST DETERMINATION OF THE SUIT (Grounds 4 and 5).
iv. WHETHER THE TRIAL COURT WAS RIGHT WHEN IT HELD THAT A COUNTER CLAIM IS NOT APPLICABLE IN A SUIT COMMENCED BY AN ORIGINATING SUMMONS (Ground 7).

On his part, the 1st Respondent submitted the following issues for determination:
i. Whether the trial Court lacked jurisdiction to hear the suit when the Appellant being a creation of statute, the Akwa Ibom State Local Government Administration Law 2017, was a juristic personality and the subject matter being a councillorship seat, was also created by the same Local Government Administration Law 2017? (Grounds 1 and 6).
​ii. Was Appellant not properly served with the originating processes, when attempts at personal service on him failed and pasting on Council premises was resisted by Council staff, with threats of violence to the bailiff, warranting an order for substituted service for pasting on the High Court premises? (Ground 2).
iii. Whether given the evidence before the Court, trial Court was not right to hold that the purported vacation of seat of 1st Respondent by Appellant was wrong, and in contravention of Section 33(2) of the Akwa Ibom State Local Government Administration Law, 2017, and the right to fair hearing guaranteed under Section 36(1) of the 1999 Constitution (as amended)? (Ground 3)
iv. Was the trial Court not right in determining the originating summons on affidavit evidence, without ordering pleadings, when there was no contentious issue, and it was obvious that Appellant’s defence was a sham, without a scintilla of evidence to back the allegation of defection leveled against 1st Respondent? (Grounds 4 and 5).
v. Was the trial Court not right to have held that a counterclaim cannot be raised in an affidavit and was equally not applicable to an originating summons proceedings (Ground 7).

The Appellant filed an Appellant’s Reply Brief of argument on 28th May, 2020.

All the three briefs were deemed duly filed and served on 20th January, 2021 when the appeal came up for hearing.

Arguing issue 1, learned counsel for the Appellant submitted that the Court below lacked the jurisdiction to entertain the suit on the following grounds:
a) Proper party not sued as a defendant in the suit.
b) The Appellant and the 2nd Respondent were not served with the originating processes in line with the Sheriff and Civil Process Act.
c) The Appellant is not a juristic person.

Appellant, it was submitted, was not a proper party in the suit. It was contended that it was the Legislative Council that declared the seat of the 1st Respondent vacant and not the Leader. Therefore, the proper party was not sued. It was submitted that where a proper party is not sued, the suit is incompetent. The Court was referred to Abubakar v. Yar’adua (2008) 19 NWLR (pt. 1120) 1 at 151.

The parties, it was further argued, were not served the processes as required by law. It was contended that non-service of the originating summons on the 2nd Respondent deprived the Court below of the jurisdiction to entertain the matter.

It was contended in addition that the Appellant is not a juristic person. Learned counsel relied on Abubakar v. Yar’adua (2008) 19 NWLR (pt. 1120) 1 at 151.

On issue 2, learned counsel for the Appellant submitted that the 1st Respondent having defected from the PDP without a justifiable reason and when there was no division in the party that sponsored him, his seat was rightly vacated by the Etim Ekpo Legislative Council. The Court was referred to Abegunde v. Ondo State House of Assembly (2015) 4 NWLR (pt. 1461) 314.

On issue 3, learned counsel for the Appellant submitted that the facts upon which the 1st Respondent’s case was predicated were contentious and the Court below ought to have struck out the suit or ordered pleadings to be filed.

On issue 4, learned counsel for the Appellant submitted that an originating summons being a civil suit, a defendant is entitled to counterclaim and the failure to consider the counterclaim by the Court below occasioned a miscarriage of justice.

Arguing 1st Respondent’s issues 1 and 2 together, learned counsel for the 1st Respondent submitted that the Court below had jurisdiction to entertain the suit. That the Appellant was and is a juristic person that can sue and be sued. It was submitted that the office of Leader Etim Ekpo Legislative Council is a creation of statute and therefore it is a legal personality. The Court was referred to Section 8(1) Akwa Ibom State Local Government Administration Law 2017.

It was submitted that where an enabling law creates a particular name for a legal personality, a party must sue or be sued in that name. The Court was referred to Abaribe v. The Speaker Abia State House of Assembly (2000) FWLR (pt.9) 1558; Ibebi v. The Speaker Bayelsa State House of Assembly (2012) 5 NWLR (pt. 1292) 1; Musa v. The Speaker, Kaduna State House of Assembly (1982) 3 NCLR 450; Speaker, Ogun Legislative Council v. Ajimoti (2011) All FWLR (pt. 585) 328 and Secretary Iwo Central LGA v. Adio (2000) FWLR (pt.7) 1142.

On the issue of service, learned counsel for the 1st Respondent submitted that there was proper service and proceeded to show how service was effected.

On issue 3, learned counsel for the 1st Respondent submitted that the Court below was right when it held that the vacation of seat of the 1st Respondent by Appellant was wrong and in contravention of extant laws. The vacation of the seat of the 1st Respondent, it was argued, was in gross contravention of Section 32(2) of the Local Government Administration Law, Akwa Ibom State, 2017.

On issue 4, learned counsel for the 1st Respondent submitted that there was nothing contentious in the counter affidavit of the Appellant to warrant the filing of pleadings.

On issue 5, learned counsel for the 1st Respondent submitted that the originating summons procedure does not provide for a counterclaim in the counter affidavit. It was submitted that the procedure adopted by the Appellant of counterclaiming in the middle of a counter affidavit was strange and unsupportable. That was why the Court below found it ridiculous, it was submitted.

Learned counsel for the 1st Respondent submitted that under the Akwa Ibom Rules of Court, a defendant in an originating procedure proceedings is only entitled to file a counter affidavit with exhibits, if any.

It was submitted that a counterclaim in a counter affidavit renders the entire counter affidavit incompetent by virtue of Section 115(2) of the Evidence Act 2011 which stipulates that an affidavit shall not contain any extraneous matter by way of objection prayer, legal argument or conclusion.

It is for this reason that the Court below in its judgment found that the counterclaim embedded in a counter affidavit was incompetent and a ridiculous gamble.

In the Appellant’s reply brief, learned counsel for the Appellant submitted that the law cited by the 1st Respondent’s counsel nowhere stated that the Leader of the Legislative Council is a juristic person. That, it is the Etim Ekpo Legislative Council that is a creation of statute and not the Leader or its Deputy Leader.

The issue of the legal personality of the Appellant was raised by the Appellant and the 2nd Respondent in paragraph 29 of the counter affidavit.

Paragraph 29 of the counter affidavit is reproduced immediately hereunder:
“29 That the Leader Etim Ekpo Legislative Council is not a juristic person and cannot be sued.”

The above deposition was countered by the 1st Respondent in a further affidavit. In paragraph 8 of the further affidavit, it was deposed in part as follows:
“… the office of leader is a creation of statute and is thus a juristic personality.”

The Appellant relied on Section 6 of the Local Government Administration Law of Akwa Ibom State to argue that Leader is not a legal person. The 1st Respondent on his part relied on Section 8(1) of the same Law in support of his argument that Leader is a legal person.

A legal person or juristic personality is any subject matter other than a human being to which the law attributes personality. See Nigerian Nurses Association & Anor v. AG. Federation & Ors. (1981) LPELR – 2027-SC. A juristic or legal personality can only be denoted by the enabling law. This can either be the Constitution or a statute. See Abubakar & Ors. v. Yar’adua & Ors (2008) LPELR – 51SC.

Is the Appellant a legal person? Although both parties joined issues on the status of the Appellant, the Court below failed to consider the issue.

Sections 6 and 8(1) of the Akwa Ibom State Local Government Administration Law, and Other Matters Connected Therewith 2017 provide as follows:
​“6 There shall be a Legislative Council for each Local Government Area of the State which shall exercise legislative powers in the Local Government.
8(1) There shall be a Leader and a Deputy Leaders of the Legislative Council who shall be elected by the Councilors from among themselves.”
From the two provisions reproduced above, it is not difficult to see that the subject matter to whom the law attributes personality is the Legislative Council for each State. The Legislative Council is given responsibility because it is a legal person. No responsibility is given to the Leader or the Deputy Leader provided for under Section 8(1) of the Law.
It is the law that only a human being or a legal person can institute an action in Court. It is the law that a body not vested with juristic or legal personality cannot sue or be sued. See Abubakar & Ors. v. Yar’adua & Ors (supra) at page 51 and Attorney-General of the Federation v. All Nigerian Peoples Party & Ors. (2003) LPELR – 630SC. Section 8(1) of the Local Government Administration Law of Akwa Ibom State 2017 relied upon by the 1st Respondent’s counsel did not make the Leader or Deputy Leader a legal or juristic person who can sue or be sued as contended by learned counsel for the 1st Respondent. The Leader, Etim Ekpo Legislative Council is therefore not a legal or juristic person who can sue or be sued. The 1st Respondent’s action against the Appellant could not have been sustained in the absence of Appellant since the 2nd Respondent was only a nominal party.

Issue 1 is resolved against the Respondents and in favour of the Appellant.

In view of the order I am going to make, no useful purpose will be served in considering any other issues in the appeal.

The appeal is allowed. Suit No. HA/35/2018, Hon. Usen John Akpan v. The Leader, Etim Ekpo Legislative Council & Anor is hereby struck out for being incompetent.
Parties to bear their costs of the appeal.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment delivered by my learned brother JAMES SHEHU ABIRIYI, J.C.A. I agree with the reasoning and the conclusion reached in the judgment.
I also allow the appeal.
I abide with the consequential orders and the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have read before now the lead judgment of my learned brother, James S. Abiriyi, JCA.

I agree with his reasoning and conclusion.

Juristic or legal personality can only be donated by the enabling law. This can either be the Constitution or a Statute. If a particular enabling law provides for a particular name by way of juristic or legal personality, a party must sue or be sued in that name. He has no choice to sue or be sued in any other name.

In the instant case, the Akwa Ibom State Local Government Administration Law and Other Matters Connected therewith 2017, created Legislative Council for each Local Government in the State which shall exercise legislative powers in the local government. Thus, the law attributes personality on the legislative council and not on the appellant.

I also allow the appeal and abide by all the consequential Orders contained in the lead judgment.

Appearances:

Utibe Nwoko, Esq. For Appellant(s)

Jumbo Udom, Esq. – for 1st Respondent.
J. Jerome Akpan, Esq. Assistant Director, Ministry of Justice, Akwa Ibom State – for 2nd Respondent. For Respondent(s)