ZAIN NIGERIA LIMITED V. ALHAJI MOHAMMED KAWU ILORIN
(2012)LCN/5467(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of June, 2012
CA/IL/M.29/2010
RATIO
PRELIMINARY OBJECTION: THE PERIOD OF NOTICE REQUIRED TO BE GIVEN TO AN OPPOSING PARTY WHEN THERE IS A PRELIMINARY OBJECTION UNDER THE COURT OF APPEAL RULES, 2011
I have taken the time to reproduce the arguments of counsel on the Issues formulated by the parties for determination but before attempting to resolve them, I shall first determine the merit or demerit of the Preliminary objection of the learned counsel for the Respondent. In so doing, I must remark that I have searched through the entire gamut of the Record of proceedings without a glimpse of the Notice of preliminary objection as provided for under order 10 Rule 1 of the Court of Appeal Rules, 2011; which is to the effect that: “A Respondent intending to rely upon a Preliminary Objection to the hearing of the Appeal, shall give the Appellant three clear days notice thereof before hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registry within the same time.”PER IGNATIUS IGWE AGUBE, J.C.A.
APPEAL: AN APPEAL MUST CHALLENGE THE RATIO DECIDENDI OF THE LOWER COURT
The cases UBN Plc V. Gombe Oil Seeds Processors Ltd. (2003) FWLR (pt 163) 111; Adama V. Anaja (2003) FWLR (pt.183) 74 and Igbinovia V. UBTH (2001) FWLR (pt 50) at 1745, cited by the learned counsel for the Respondent in support of his arguments on this objection are very apposite and instructive on the point for it is trite that an appeal must challenge the ratio decidendi of the Judgment sought to be appealed against and should not be couched in nibibus or at large. See NAB v. COMEX Ltd. (1996) 6 NWLR (pt 608) 648 at 668 para. E; Makinde v. Adeogun (2009) 1 NWLR (pt. 1123) 575; Salami V. Muhammed (2009) 9 NWLR (pt. 673) and Scheeps V. M.Z.S. Araz (2000) 15 NWLR (pt 691) 622. See also the celebrated cases of Saraki V. Kotoye (1992) 9 NWLR (pt 261) 156 at 184; Ikweki V. Ebele (2005) 2 SC (pt 11) 96 at 108 – 109 particularly 110 per Oguntade JSC. Citing per Iguh JSC in Atoyebi v. Govt. of Oyo State (1994) 5 NWLR (pt.344) 290 at 305. To be competent therefore, the Ground of Appeal must relate or emanate from the decision of the lower Court and not even on an obiter dictum of the Judgment not to talk of an issue completely outside the purview of the lower Court’s decision.PER IGNATIUS IGWE AGUBE, J.C.A.
JUSTICES:
TIJJANI ABDULLAHI (PJ) Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
Between
ZAIN NIGERIA LIMITED – Appellant(s)
AND
ALHAJI MOHAMMED KAWU ILORIN – Respondent(s)
IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the Ruling of the High Court of Justice Kwara State, Holden at Ilorin Division and delivered on the 5th October, 2009, by His Lordship, the Honourable Justice S.T. Daibu whereby the Application of the Appellant (then the Defendant) dated and filed on the 30th April, 2009, for an order striking out the substantive suit for want of jurisdiction, was dismissed for lacking in merit.
Dissatisfied with the Ruling of the learned trial Judge, the Appellant brought an Application before this Honourable Court dated 23rd March, 2010 praying for extension of time within which to apply for leave to appeal against the said Ruling; leave to appeal on grounds other than law simpliciter; extension of time to appeal and file the Appellant’s Notice of Appeal against the Ruling and to deem the Notice of Appeal already filed and served in the suit as duly filed out of time. Consequently, the Notice of Appeal with two Grounds was deemed duly filed and served on the Respondent on the 8th of June, 2010.
For the avoidance of doubt, the Grounds of Appeal are reproduced hereunder as couched with their respective particulars:-
“GROUNDS OF APPEAL
1. The Court below erred in law when it dismissed the Appellant’s preliminary objection premised on the jurisdiction of the Court by holding that the Appellant is a juristic person and can therefore sue or be sued in the name “Zain Nigeria Limited.”
PARTICULARS
i. The Court below wrongfully held that “Zain Nigeria Limited” is a juristic person when in actual fact the Appellant’s registered named is not “Zain Nigeria Limited.”
ii. There is no evidence placed before the court to show that Zain Nig. Ltd. is a registered name of the Appellant.
iii. Non juristic person like the Appellant can neither sue nor be sued as was held by the Court below.
iv. The error of the Court below has occasioned miscarriage of justice.
2. The lower court erred in law when it misconceived and misinterpreted order 14 Rule 17 of the Kwara State High Court (Civil Procedure) Rules thereby conferring legal personality on the unregistered name of the Appellant and this has occasioned miscarriage of justice.
PARTICULARS
i. There is nothing in order 14 Rule 17 of the Kwara State High Court (Civil Procedure) Rules that confer legal personality on the unregistered name of any given firm like the Appellant’s name in this case.
ii. Order 14 Rule 17 of the Kwara State High Court (Civil procedure) Rules is not a waiver of the required registration of name of any firm that intends to sue and be sued.
iii. The court below did not support its position with any decided authority (ies) or statute(s) apart from the misconstrued and misinterpreted order 14 Rule 28 of the Kwara State High Court (Civil Procedure) Rules.”
Upon transmission of the Record of Appeal to this Honourable Court, Briefs were filed and duly exchanged by the respective learned counsel for the parties. Akin Akintoye II Esq. who settled the Brief of the Appellant dated and filed 23rd December, 2010; distilled two Issues for determination and married them each to the respective Grounds thus:-
“(i) Whether the Appellant is a juristic person and can therefore sue and be sued in the Name of “Zain Nigeria Limited” Ground ONE
(ii) Whether the Learned Trial Judge was right in his interpretation, construction and application of order 14 Rules 17 and 28 of the Kwara State High Court (Civil Procedure) Rules to the Appellant’s case- Ground TWO”.
In the Respondent’s Brief settled by Wahab Ismail Esq. on the other hand, dated and filed on the 12th of October, 2010 but deemed duly filed and served on the 25th of October, 2010 by the order of this Honourable Court, a sole Issue was formulated for determination couched as follows:-
“Whether in general circumstances of this case, the lower court was not right in holding that the Defendant was a juristic person capable of suing and being sued in the manner and name of ZAIN NIGERIA LIMITED in which it was sued?
ARGUMENTS OF COUNSEL ON THE ISSUES
ISSUE ONE OF THE APPELLANTS’ BRIEF
“Whether the Appellant is a juristic person and can therefore sue and be sued in the Name of ‘Zain Nigeria Limited’?
The learned counsel for the Appellant argued on this Issue in the first place that for a person to sue and be sued in court, such a person must be known to law i.e. must be a legal person. Learned counsel for the Appellant alluded to the fact that the Appellant’s motion stated the ground for the Application as stemming from the fact that “the Defendant is a non-juristic person and cannot be sued” (page 35 of the Records refers). References were also made to paragraphs 4 and 5 of the affidavit in support of the motion which depositions according to him were not controverted by the Respondent because there was no Counter-affidavit against the aforesaid depositions and accordingly same were deemed admitted.
Citing the cases of Governor of Kwara State v. Lawal (2007) 13 NWLR (pt. 1051) 347 at 379 and Idanre L.G. v. Gov. Ondo State (2010) 14 NWLR (pt 1214) at 509, where it was variously held that only juristic persons can sue and be sued, the learned counsel for the Appellant submitted again on the authorities of Iyke Medical Merchandise v. Pfyzer INC. (2002) FWLR (pt. 53) 77; per Iguh, JSC; Agbomagbe Bank Ltd. v. General Manager, G.B. Olivant Ltd. (1961) 1 ALL NLR 166; Maersk Line & Anor. V. Addide Investment Ltd. & Anor (2002) 4 SCNJ 433 and Section 37 of the Companies and Allied Matters Act, Cap. C.20 LFN, 2004; that the proper parties were not before the Court because Zain Nigeria Ltd. sued by the Respondent at the lower Court is unknown to law. The law, he further submitted is that for an action to be maintained against a corporate entity, it must be in its registered name. On this score, it was the learned counsel for the Appellant’s view that the suit against the Appellant should not have been entertained by the Court below because proper parties were not before it for the fact that Zain Nigeria Limited is not the name of any registered company in Nigeria.
On another score, it was further submitted by Mr. Akintoye II that when an Application is brought before a Court challenging the competence of a suit, it is better that the adverse party takes necessary steps to remedy the defect, but the Respondent in this case went on arguing at page 39 of the Records that the suit was instituted against Zain Nigeria Ltd. which is prima facie a limited liability company-private or public and on which account, it is a legal person. The above assertion, learned counsel for the Appellant noted, was not backed up by fact through a counter-affidavit and accordingly should be discountenanced. The learned counsel also reflected on the holding of the lower court at page 42 of the Records which according to him was influenced by the contention of the Respondent aforesaid that the Appellant is prima-facie a legal person, private or public which holding occasioned a grave error of law on the part of the lower Court which this Court has power to correct.
He also stated the position of the law on judicial notice which is based on facts and that the legal persons must sue and be sued in their names so as to ensure that the identities of parties before the court are devoid of ambiguity. It was furthermore contended that the law is also trite that for a corporate body to sue and be sued, the action must be in its registered name; else the action will be incompetent. For this submission, he relied on the cases of Shittu V. Ligali (1941) 16 NLR 21 and Ediscome International Inc & Associates v. GTEC International Estates Ltd. (2007) ALL FWLR (pt. 357) 1002. Citing again Idanre L.G. v. Governor of Ondo State (supra) at 525 -526, he maintained that when a non-juristic party is sued, the appropriate order is to strike out the suit. Further references were made to the “Civil Procedure Law in Nigeria”, 2nd Edition, by Fidelis Nwadialo, SAN; University of Lagos Press at page 90-91 and the case of Njemanze V. Shell B.P. Port Harcourt (1966) ALL NLR 8 at 10; to finally contend on this issue that “Zain Nigeria Ltd.” sued by the Respondent is not a person known to law, thus there was no proper party before the court in the first place. He then prayed us to allow the appeal and set aside the Ruling of the lower Court.
ISSUE TWO
Whether the Learned Trial Judge was right in his interpretation, construction and application of order 14 Rules 17 and 28 of the Kwara State High Court (Civil Procedure) Rules to the Appellant’s case?
Mr. Akintoye II on this Issue alluded to page 41 of the Records where the court observed that the provision of order 14 Rule 17 of the Kwara State High Court (Civil Procedure) Rules 2005, relied upon by the Appellant in support of its motion does not support the Appellant’s case as there was nothing in the provision that deals with the issue of jurisdiction or who can sue and be sued. It was then submitted that the learned Trial Judge greatly erred in that holding, as the purport of the Appellant’s reliance on the above cited Rule of the court below was to invoke the power of the court to strike out the name of the Appellant for being unknown to law in consequence of lack of jurisdiction. The said order 14 Rule 17 was then reproduced to submit that all that the Appellant did was for the court to strike out the suit for want of proper parties before it, which in the opinion of the Appellant, by order 14 Rule 28 of the Kwara State High court (Civil Procedure) Rules, 2005; the decision of the learned trial Judge that Order 14 Rule 17 was not applicable, is perverse.
The Appellant, the learned counsel continued, does not carry on business in the name of Zain Nigeria Limited and assuming the Appellant carries on business in that name, the provision of order 14 Rule 28 of the Kwara State High Court (Civil Procedure) Rules, 2005; relied upon by the court below in arriving at his conclusion does not apply because the said Rule deals with actions against firms (partnerships) and persons carrying out businesses in Names other than their own names (Registered Business Names) but does not apply to corporate personality like the limited liability company in this case.
Learned counsel maintained that the learned trial Judge greatly erred in conferring legal personality on the Appellant who is an unknown person to the law for it was never stated as a fact nor was it an issue that Zain Nigeria Ltd. is a name with which a firm is carrying on business. It was posited therefore that the fact that Appellant was sued in the name of Zain Nigeria Ltd. and accepted service in that name is not enough to confer legal personality on it, because according to the learned counsel, the concept of legal personality is an incident of the law, especially in the case of an incorporated company, under Companies and Allied Matters Act, Section 37 thereof; Cap. C20; LFN, 2004. We were finally urged to hold that the lower court Judge was wrong in his interpretation and application of the provision of order 14 Rules 17 and 28 of the High court (Civil Procedure) Rules of Kwara State 2005; and allow the Appeal.
RESPONDENT’S ARGUMENT ON THE SOLE ISSUE
The learned counsel for the Respondent prefaced his argument on a Preliminary objection to the competence of the appeal. According to him and on the authorities of U.B.N Plc. v. Gombe Oil Seed Processor Ltd. (2003) FWLR (pt.163) 111 and Adama v. Anaja (2003) FWLR (pt. 183) 74; for a Ground of Appeal to be competent it must relate to the decision Appealed against and that a Ground of Appeal would be incompetent and liable to be struck out once it is found not to have derived its foundation in the decision being complained against, or challenges what has not been decided by the lower court. Ighinovia v. UBTH (2001) FWLR (pt. 50) 1745 referred.
Learned counsel singled out Ground 2 of the Appellant’s Notice of Appeal which Ground and particulars he reproduced in paragraph 2.04 at page 3 of the Respondent’s Brief, to submit that there is nowhere in the Ruling that the lower court held that by virtue of order 14 Rule 17 of the Kwara State High Court (Civil Procedure) Rules, 2005; the Appellant is a juristic person. On the contrary learned counsel for the Respondent added, the lower court held in his Ruling of 5/10/2009 that order 14 Rule 17 was of no relevance on the issue of whether the Appellant was juristic person or not.
From the foregoing, learned counsel argued that it is clear that the Appellant’s complaint in Ground 2 as thematic as it is does not challenge the decision of the lower court and is therefore incompetent. In the same way, the Issue formulated from that Ground, we were urged, was derived/formulated from an incompetent Ground and is equally incompetent. We were accordingly prayed to strike out the Ground as well as the Issue formulated there from.
ARGUMENT ON THE SOLE ISSUE
In the alternative, the learned counsel proceeded to argue the sole Issue for determination as to “Whether in the general circumstances of this case, the lower court was not right in holding that the Defendant was a juristic person capable of suing and being sued in the manner and name of ZAIN NIGERIA LIMITED in which it was sued?”
The learned counsel answered the question posed by this Issue in the affirmative as according to him the lower court’s decision that the Appellant herein was properly sued in the name of ZAIN NIGERIA LIMITED was right. He conceded to the contention of the learned counsel to the Appellant that generally only juristic persons can sue and be sued and accordingly a non juristic person may not sue or be sued.
The learned counsel for the Respondent argued that in certain acceptable circumstances, legal personality may be implied and the Court would grant by implication the right to sue and be sued on a non- juristic entity where refusal to do so may result in injustice to the parties involved. Thus, he continued, where a non-juristic entity carries out a statutory function or roles which have direct effects on the rights of the people, the court in those circumstances may grant the right to sue the entity as a Defendant to the suit. For this submission he cited the cases of Thomas V. Local Government Service Board (1965) 1 ALL NLR 169; and Owners of RDG v. Commissioner of Police Lagos State (2003) FWLR (pt. 62) 1885; in support.
He also alluded to another situation where a non-juristic person could be sued as a Defendant in a suit as in the class granted or provided for by the Rules of the High Court such as order 14 Rule 28 of the Kwara State High Court (Civil Procedure) Rules, 2005. With regard to the case at hand, the learned counsel to the Respondent asserted that by the combined effect of the provisions of Sections 27(1) and 37 of the Companies and Allied Matters Act, Cap. C20, Laws of the Federation of Nigeria; the Appellant is a limited liability company with legal/juristic personality and is therefore capable of suing and being sued. To buttress the above submission he relied on the cases of Salomon v. Salomon (1897) AC 22 H.L. and Marina Mominee V. FBIR (citation not supplied). The learned counsel went further to argue that the word “Ltd” which ends the name of the Appellant/ZAIN NIGERIA LIMITED shows that the Defendant is a registered limited liability Company, and as such a juristic entity sued under the laws of the country, the Respondent having taken the writ in the case and caused all the processes filed to be served on the Appellant which Defendant/Appellant received.
Furthermore, he maintained, the Appellant as Defendant fully responded to the case of the Claimant/Respondent by filing a Statement of Defence in the case as shown at pages 28 and 29 of the Records wherein the Defendant/Appellant recognised the transaction leading to the suit, made certain admissions and attempted some denials of the Issues raised by the Respondent in his Statement of claim. The learned counsel for the Respondent then reproduced the averments of the Appellant in paragraph 5 of the Statement of Defence at page 28 of the Records. It was further argued by the learned counsel for the Respondent that apart from filing the Statement of Defence and the sweeping averment that Zain Nigeria Ltd. is non juristic, there was nowhere in the process filed by the Appellant that another name was disclosed and accordingly, we were urged to hold that the submissions of the Appellant’s learned counsel in paragraphs 4.04-4.06 of the Appellant’s Brief are baseless on the ground that the Respondent sued the Appellants whom he presumed a limited liability company registered under the relevant law and the Appellant had not disclosed another name under which it was registered.
Thus, the learned counsel further submitted, it is most inadequate for the Appellant to merely state that the Defendant’s name has not been identified by the claimant without going further to disclose the name believed to be the name of the Appellant or its juristic name. The Court, he therefore insisted, was justified in holding that Zain Nigeria Ltd, was a juristic person who was properly sued by Claimant/Respondent.
On the contention by the learned counsel to the Appellant that the Respondent would have taken steps to remedy the defect in the name of the Defendant/Appellant rather than engage in arguments as to the name of the said Defendant/Appellant, the learned counsel for the Claimant/Respondent questioned the necessary steps to be taken when the Defendant/Appellant did not disclose its supposed registered name, submitting that the Appellant is out to draw the Court into guess work and the court’s business is a serious one, thus the Appellant was unfair in complaining about the Ruling of the Court below that Zain Nigeria Limited is a juristic person. Still on the contention of the Appellant on the rectification of the defect in the name of the Defendant by the Respondent, the learned counsel for the Respondent posited that upon receipt of the processes filed by the Claimant/Respondent the Defendant/Appellant may only object to the name by disclosing its name, otherwise the court would have no option but to stick to the position that ZAIN NIGERIA LIMITED is a juristic person that can sue and be sued.
Quoting from the decision of this Honourable Court in Ogunshola V. Ibiyemi (2008) ALL FWLR (pt. 400) 747; he posed the question as to what is the essence of ‘Ltd.’, if the name of the Defendant/Appellant Zain Nigeria Ltd. is non-juristic, submitting that taking the surrounding circumstances of the case into consideration, the court below was right in so holding that Zain Nigeria Ltd. is a juristic person and was sued properly as a Defendant.
On the heavy weather made by the Appellant on the pronouncement of the court below pertaining to order 14 Rules 17 and 28 of the Kwara State High Court (Civil Procedure) Rules, 2005, the learned counsel for the Respondent reiterated that the court was right to have held that under order 14 Rule 28, the Appellant can sue and be sued as the Defendant is known by that name. On the other hand, it was further submitted that the court was right to have held that order 14 Rule 17 was not relevant in the determination of the question as to whether the Defendant is a juristic person as sued; since that provision has nothing to do with the prayers in the Appellant’s motion but rather deals with varying, substituting or striking out the name of a party to the suit. The prayer of the Appellant in the motion, learned counsel maintained was for the striking out of the suit in that the Claimant/Respondent sued a non-juristic person. We were then urged to dismiss the appeal for being a waste of time and with costs.
APPELLANT’S REPLY BRIEF
Reacting to the submissions of the learned Counsel to the Respondent, the learned counsel for the Appellant further filed a Reply Brief wherein he responded to the Respondent’s preliminary objection as well as the arguments of counsel on his behalf on the sole issue formulated for determination. In respect of the preliminary Objection of the Respondent, the learned counsel to the Appellant submitted that his learned colleague on the other side misconstrued Ground 2 of the Notice of Appeal which was alleged not to have arisen from the decision of the lower court by focusing basically on particulars 1 and 2 of the Ground without adverting his mind to Particular 3 thereof. He took the view that it is trite that to determine whether a Ground of Appeal arises from the Ruling or Judgment of a Court, the entire Ground will have to be considered together with its particulars. Visafone Communications Ltd. v. Musical Copyright Society of Nigeria (2011) LPELR CA/L/494/09 and Ukpong v. Commissioner of Finance (2007) 7 MJSC 18 at 33; where the Supreme Court held that a ground of appeal is not incompetent where sufficient particulars can be gleaned from the ground, were relied upon to submit that the position of the Appellant is that in the lower Court it relied on order 14 Rule 17 of the Kwara State (Civil Procedure) Rules to urge the court to strike out the Appellant’s name from the suit and a fortiori the suit for lack of jurisdiction; whereas the court held the Rule above cited as not only inapplicable but that nothing in the said Rule supports the application.
What is more, learned Counsel further submitted, the court went on to hold that by virtue of order 14 Rule 28 of the Rules, it could take judicial notice that Zain Nigeria Limited is the name of a registered company in Nigeria. All these facts are said to be contained in the Ruling which is appealed against and which holistic reading of Ground 2 of the Notice of Appeal of the Appellant and its particulars, clearly arise from the decision of the lower Court and therefore competent. We were urged to so hold.
On the sole Issue formulated and argued by the learned counsel for the Respondent, the learned counsel for the Appellant contended that all the submissions of the learned counsel for the Respondent and the authorities cited are irrelevant to this case as the case of the Appellant does not fall within any of the exceptions highlighted by the Respondent. According to him, the juristic personality of a corporate entity like a company registered under the Laws of Nigeria is different from a legal personality conferred by provision of the law on statutory corporation as held in Thomas v. Local Government Service Commission Board (1965) 1 ALL NLR (168).
Again learned counsel for the Appellant submitted that the Appellant’s juristic personality cannot be placed under the provision of order 14 Rule 28 of the Kwara State High Court (Civil Procedure) Rule, 2005 as suggested by the learned counsel for the Respondent because of the reason earlier proffered in their argument that the provision thereof apply only to actions against firms and persons carrying on business in a name other than their own i.e. actions against persons who registered business names and not corporate entity duly incorporated under the laws of Nigeria. He submitted further that the lower Court misconstrued the position of the law and clothed an unknown entity with legal personality which error the Respondent’s counsel also fell into in his argument.
On the submission of the learned counsel to the Respondent that with the word “Ltd.” the lower Court presumed the Appellant a limited liability company, the learned counsel for the Appellant further submitted that such submission is speculative as the issues of legal personality is an incident proven by facts and law. Moreover, the learned counsel for the Appellant maintained, there was no time the Appellant held out herself to the Respondent or anybody that her name is ZAIN NIGERIA LIMITED and that the Agreement pleaded by the Respondent and attached to the Statement of Claim at the lower Court is beyond peradventure on who the Respondent was to sue. (Pages 20-26 refer).
Citing Ajao v. Sunmola & Anor. (1973) 5 SC 119; learned counsel for the Appellant further submitted that it was the duty of the Claimant to move the Court against a proper party and where an objection as to the competence of a party is challenged it is also the duty of the Claimant as in this case to establish the competence of the party as the Defendant is not in Court on its volition. Accordingly, it was submitted on this score that the contention of the Respondent that it was the Appellant who should have furnished the Court with its proper name, is baseless when the Respondent could with due diligence have perused the documents he filed at the lower Court to determine the appropriate party he sued. Having not done so is fatal and goes to the root of the matter, learned counsel further submitted to urge us to so hold and allow the appeal.
On the assertion by the Respondent’s counsel that the Appellant was duly served with all the processes and she reacted to same admitting some of the averments of the claimant’s claim in her statement of Defence which she duly filed, Appellant’s counsel submitted that the true position leading to the filing of the statement of Defence was deliberately omitted.
The learned counsel to the Appellant pointed out that she first filed a conditional appearance with Preliminary Objection and filed her defence after 18 days of the lower Court’s delivery of its Ruling on the motion brought by the Appellant which does not constitute a waiver or concession to the jurisdiction of the Court.
Finally, the learned counsel to the Appellant contended that the position of the Respondent that the Appellant could only raise an objection on the proper name after disclosing its proper name is untenable and not supported by any authority whatsoever. On the contrary, he argued that the position of the law is that when a party has an objection to the jurisdiction of a Court or competence of an action, he can after filing a conditional appearance file an application to terminate the case with the grounds of the application contained therein. In the instant case, the learned counsel submitted, the Appellant strictly complied with the above position and it was therefore wrong for the learned counsel for the Respondent to have contended as he did that unless the Appellant disclosed its proper name, it cannot raise an objection like it did. Referring us to the case of Njemanze v. Shell B.P. Port Harcourt (1966) ALL NLR 8 at 10; he finally urged us to discountenance all the authorities cited by the learned counsel for the Respondent in the Respondent’s Brief as well as the arguments canvassed therein as being misconceived, misapplied and misleading but to allow the appeal.
RESOLUTION OF ISSUES
1. PRELIMINARY OBJECTION
I have taken the time to reproduce the arguments of counsel on the Issues formulated by the parties for determination but before attempting to resolve them, I shall first determine the merit or demerit of the Preliminary objection of the learned counsel for the Respondent. In so doing, I must remark that I have searched through the entire gamut of the Record of proceedings without a glimpse of the Notice of preliminary objection as provided for under order 10 Rule 1 of the Court of Appeal Rules, 2011; which is to the effect that: “A Respondent intending to rely upon a Preliminary Objection to the hearing of the Appeal, shall give the Appellant three clear days notice thereof before hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registry within the same time.”
However, the above defect in the objection notwithstanding, since the Appellant did not make any issue about non- compliance with the above provision, I shall invoke Rule 3 of order 10 of the Rules, to deem the Preliminary objection as properly raised. The main grouse of the Respondent warranting the objection is that Ground 2 of the Notice of Appeal does not relate to the decision appealed against and accordingly, the said Ground is incompetent and liable to be struck out.
The cases UBN Plc V. Gombe Oil Seeds Processors Ltd. (2003) FWLR (pt 163) 111; Adama V. Anaja (2003) FWLR (pt.183) 74 and Igbinovia V. UBTH (2001) FWLR (pt 50) at 1745, cited by the learned counsel for the Respondent in support of his arguments on this objection are very apposite and instructive on the point for it is trite that an appeal must challenge the ratio decidendi of the Judgment sought to be appealed against and should not be couched in nibibus or at large. See NAB v. COMEX Ltd. (1996) 6 NWLR (pt 608) 648 at 668 para. E; Makinde v. Adeogun (2009) 1 NWLR (pt. 1123) 575; Salami V. Muhammed (2009) 9 NWLR (pt. 673) and Scheeps V. M.Z.S. Araz (2000) 15 NWLR (pt 691) 622. See also the celebrated cases of Saraki V. Kotoye (1992) 9 NWLR (pt 261) 156 at 184; Ikweki V. Ebele (2005) 2 SC (pt 11) 96 at 108 – 109 particularly 110 per Oguntade JSC. Citing per Iguh JSC in Atoyebi v. Govt. of Oyo State (1994) 5 NWLR (pt.344) 290 at 305. To be competent therefore, the Ground of Appeal must relate or emanate from the decision of the lower Court and not even on an obiter dictum of the Judgment not to talk of an issue completely outside the purview of the lower Court’s decision.
In order therefore to determine whether the Ground which is the subject of this Objection emanates from the ratio of the lower Court’s Judgment or not, it is necessary to reproduce same and its particulars. The Ground avers thus with its particulars:-
2. The lower Court erred in law when it misconceived and misinterpreted Order 14 Rule 17 of the Kwara State High Court (Civil Procedure) Rules thereby conferring legal personality on the unregistered name of the Appellant and this has occasioned a miscarriage of justice.”
PARTICULARS:
i. There is nothing in order 14 Rule 17 of the Kwara State High Court (Civil Procedure) Rules that confer legal personality on the unregistered name of any given firm like the Appellant’s name in this case.
ii. Order 14 Rule 17 of the Kwara State High Court (Civil Procedure) Rules is not a waiver of the required registration of name of any firm that intends to sue and be sued.
iii. The court below did not support its position with any decided authority (ies) or statute(s) apart from the misconstrued and misinterpreted Order 14 Rule 28 of the Kwara State High Court (Civil Procedure) Rules.”
The contention of the learned counsel for the Respondent/Objector is that the Court below throughout her Ruling from page 48 to 50 never held anywhere that by virtue of order 14 Rule 17 of the Kwara State High Court (Civil Procedure) Rules, 2005, the Appellant is a juristic person but that on the contrary the lower court held that order 14 Rule 17 was of no consequence or relevance in the issue of whether the Appellant was a juristic person or not. Accordingly he has insisted that the complaint of the Appellant in Ground 2 of the Notice of Appeal does not challenge the decision of the lower Court and therefore it is incompetent.
Now a careful perusal of page 48 of the Record of Appeal which contains the Ruling of the learned Trial Judge in this respect, would reveal that His Lordship held thus:-
“Having carefully gone through the provisions of Order 14 Rule 17 of the Kwan State High Court Civil Procedure Rules, there is nothing in it that supports the application of the Defendant-Applicant. In fact the provision of Order 14 Rule 17 does not apply at all to the case at hand as it does not deal with the issue of jurisdiction or who can sue and be sued.”
At page 50 of the Records/Ruling His Lordship continued:-
“However, going by the provision of order 14 Rule 28 cited by the learned counsel to the Claimant/Respondent the provision of that order support the view of the Claimant counsel because Order 14 Rule 28 reads:-
“Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in the name and style as if it were a firm’s name and so far as the nature of the case will permit, all Rules relating to procedures against firms shall apply.”
Relying on the above provision of the Rules, the learned Trial Judge agreed with the learned counsel to the claimant that Zain Nig. Ltd. could sue and be sued in that name by which the Defendant was known.
Having carefully perused the Ground of Appeal together with its particulars holistically vis-‘E0-vis the Ruling of the learned Trial Judge in this respect, I am of the view that whereas the Appellant predicated her Application under order 14 Rule 17 which govern applications for either addition, striking out, substitution, or variation of the name of the Defendant, the court below held that the said Rule was inapplicable and had nothing to do with the prayers in the Appellant’s motion. Assuming this court would uphold that Ground and its particulars in the course of determining this Appeal; then the learned Trial Judge would have misinterpreted the Rule, misconceived and misapplied same in the course of His Ruling.
My rationale in so holding is informed by the fact that in applying order 14 Rule 28 to dismiss the Defendant/Appellant’s Application, the learned trial Judge could have indirectly conferred the Defendant/Appellant with juristic personality to sue and be sued apart from conferring jurisdiction upon the court in a case which otherwise would have been struck out for want of proper Defendant and a fortiori jurisdiction, assuming the application was granted. See Issue II of the Appellant.
In essence, I overrule the preliminary objection of the Respondent for being frivolous and unmeritorious and accordingly hold that Ground 2 was not couched outside the decision of the learned Trial Judge and although the authorities cited by the learned counsel for the Respondent in this regard are all germane and would have been rightly decided on their peculiar facts and circumstances, they are not applicable to the facts of this case. Ground 2 of the Notice of Appeal is therefore competent and can sustain the Appeal.
Turning to the substantive Issues for determination, I propose to determine the Appeal on the two Issues formulated by the Appellant.
ISSUE I: Whether the Appellant is a juristic person and can therefore sue and be sued in the name of “Zain Nigeria Limited?
In attempting to resolve the question posed by this first Issue, it must be conceded from the onset as submitted by the learned counsel for the Appellant and indeed the Respondent respectively, that the general position of our jurisprudence is that only natural persons, in other words, human beings and artificial or juristic persons (bodies corporate) are seised with the competence and capacity to sue and be sued. In Chief Aderibigbe Jeoba v. Osho Owonifari (1974) 10 S.C. 157 at pp. 163-165; the Supreme Court commenting on the theory of legal personality defined a person thus:-
“In legal theory, a person is any being whom the law rewards as capable of rights and duties. There are two kinds of persons distinguishable as natural and legal. A natural person is a human being while a legal or juristic person is a person in legal contemplation such as a joint stock company or Municipal Corporation.
In jurisprudence, the term “legal person” as opposed to a natural person, is a term of art. The term applies to corporation such as limited liability companies or Municipal Corporation; it may also apply to churches, hospitals, or Universities if they are incorporated or registered as such. Their creation and existence have been aptly described by Salmond in his Book (12 Edition) P. 220″.
See also per Obaseki, JSC; in Nigeria Nurses Association & Anor. V. Attorney – General of the Federation & Ors. (1981) 11-12 S.C. 1 at 12; wherein the erudite judicial icon postulating on this concept and in particular with legal to registered Trade Unions quoted in extenso the above mentioned and held that a registered Trade Union is a legal person and the birth and death of such a legal person or artificial personality/entity is determined not by nature but by the law. The learned Law Lord further posited that since such artificial persons came into existence by legal will and fiat, they must necessarily exist only at the pleasure of the law and their extinction or death is called dissolution. On the other hand, the personality of a human being commences from birth and ceases to exist at death. At death such a being ceases to possess rights or interest or obligations and therefore can no longer own property or capable of suing or being sued.
What emerges from the above analogies of the concept of legal personality is that, like natural persons, only those artificial bodies that by virtue of their incorporation have acquired rights and are therefore subject to concomitant obligations or duties are empowered at law to sue and be sued. The rationale behind this legal concept is that litigation is all about the determination of legal rights and obligations and accordingly, only parties with such vested rights and obligations who have life either natural or statutory by incorporation or legislation can initiate actions or can be proceeded against. See Fawehinmi v. Nigeria Bar Association (No. 2) (1989) 2 NWLR 558 at 595; Management Enterprises Ltd. V. Otusanya (1987) 2 NWLR 179. From the foregoing analysis, it has been held that the names of the Plaintiff and Defendant in a suit like the one at hand must be names of living persons (i.e. natural persons or artificial persons known to law).
In the appeal at hand, the learned counsel for the Defendant/Appellant had raised a preliminary objection in the lower court to the effect that Zain Nigeria Limited which was sued as Defendant, was not a person known to law. For instance, in the Affidavit in support of the Motion to strike out the suit, one Adebayo O. (Mrs.) deposed to the following facts:-
“4. That I also know as a fact that the person whose name appeared as the Defendant is a non-juristic person and therefore can neither sue nor be sued.
“5. That the Claimant/Respondent has not properly identified the person he wants to sue.”
See also Ground I upon which the Application was predicated wherein it was stated thus:-
“1. The Defendant is non-juristic person and cannot be sued.”
As was righty submitted by the learned counsel to the Appellant, the above averments were neither challenged nor controverted and ordinarily these averments should have been deemed admitted. See Alfotrin v. Attorney General of the Federation & Anor. (1996) 12 SCNJ 236 at 262; per Iguh, JSC; Omoregbe v. Lawani (1980) 3-4 SC 108 at 117; N.M.S. Ltd. v. Afolabi (1978) 2 SC 79 at 87; Boshali V. A.C.E. Ltd. (1961) 1 ALL NLR 917 and Maersk Line v. Addide Ltd. (supra) at 461. From the decisions in the above cited cases, where the averments in the Affidavit of the Defendant/Appellant was deemed admitted by the opposite party who had the opportunity to challenge the said averments but failed and/or neglected so to do, the Court below was bound to act on such unchallenged evidence.
In any case, the learned counsel for the Appellant has rightly cited the case of Iyke Medical Merchandise v. Pfizer Inc. (2002) FWLR (pt. 53) p. 77 per Iguh, J.S.C.; to submit that the law is that for an action to be maintained against any corporate entity it must be in its registered name. See Noble v. Parochial Committee of St John’s Church Aroloya Lagos (1959) LLR 47 and Njemanze v. Shell B.P Port-Harcourt (1966) 1 ALL NLR 8 at 10; where it was variously held that the exact name of a company registered under the Companies and Allied Matters Act should be used if it is suing or being sued. See also Governor of Kwara State v. Lawal (2007) 13 NWLR (pt. 1051) 347 at 379 and Idanre L.G. V. Governor of Ondo State (2010) 14 NWLR (pt. 1214) pg. 509, cited by the learned counsel for the Appellant. It is pertinent to note that in the articulation of their respective positions, the learned counsel on both sides have cited sections 27(1) and 37 of the Companies and Allied Matters Act Cap. C.20 LFN 2004; to support their disparate positions in this appeal. Section 27 (1) of the Act for instance provides that the Memorandum of Association of every Company shall state (a) the name of the company (b) the registered office which shall be situated in Nigeria etc.
On the other hand, section 37 which makes provision for the effect of Registration stipulates that:-
“As from the date of incorporation mentioned in the certificate of incorporation the subscriber of the memorandum together with such other persons as may, from time to time, become members of the company, shall be a body corporate by the name contained in the memorandum, capable forthwith of exercising all the powers and functions of an incorporated company including the power to hold land, and having perpetual succession and a common seal, but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up as is mentioned in this Act.”
It is also necessary to draw our attention to the provisions of Section 29(1) and (5) of the Act which are to the effect that:-
“(1) The name of a private Company limited by shares shall end with the word “Limited’.
“(5) A Company may use the abbreviation “Ltd.”, “Plc.”; “Ltd/(tte)” and “Ltd” for the words “Limited” “Public Limited Company” (Limited by Guarantee)” and “Unlimited” respectively in the name of the Company.”
The contention of the learned counsel for the Appellant is that the suit would not have been entertained at the lower Court because proper parties were not in that Court and more particularly as Zain Nigeria Limited which was the Defendant/Appellant’s designation was/is not the name of any Company registered in Nigeria. He has cited the cases of Agbomagbe Bank Ltd v. General Manager G. B. Olivant Ltd. (1961) 1 ALL NLR p. 166; Maersk Line & Anor. v. Addide Investment & Anor. (2002) 4 SCNJ 433 and Section 37 of the Companies and Allied Matters Act to submit that when an Application of the nature brought by the Appellant challenging the suit is before the trial court, the adverse party ought to take necessary steps to remedy the defect in the process filed by way of Amendment or substitution in order for the proper Defendant to be in Court.
The learned counsel for the Respondent has cited Thomas v. Local Govt. Service Board (1965) 1 All NLR 168; where the Supreme Court rejected the submission of the objector in that case that statutory bodies like those of the Local Government Service Boards were not liable to be sued for a declaration. The rejection of such submission was predicated on the statutory provisions relating to the Appellant’s office which are such that injustice might result if the Board was not or could not be sued as a party to any kind of proceedings. He has also drawn our attention to the distinction between a situation where a non-juristic person could be sued as has been done in this case which right to sue the Defendant is cognizable and donated by order 14 Rule 28 of the High Court (Civil Procedure) Rules, 2005 of Kwara State and Sections 27(1) and 37 of CAMA Cap. C20, LFN, 2004, the Appellant being a limited liability company with legal personality since its name ends with “LTD” and offers a presumption that it is a limited liability company and therefore juristic entity.
I have already reproduced the provisions of the Sections of the Companies and Allied Matters Act Cap. C.20 cited by the learned counsel for the respective parties. What is left for me to do here is to examine the judicial authorities cited in support of the arguments canvassed by the respective parties in order to determine whether the Defendant/Appellant is/was a legal personality or juristic entity so as to enable it sue and be sued in this case.
In the locus classicus of Agbomagbe Bank Ltd. v. General Manager, G. B. Olivant Ltd. & Anor. (1961) A.N.R. 125; the plaintiff named the 1st Defendant as the “General Manager, G. B. Olivant Ltd.” and the learned counsel to the company raised a Preliminary objection that such a name was not a person known to the law; that such person could not be sued, and ought to be struck out of the action.
The Plaintiffs submitted in the first place that as “G. B. Olivant Ltd.” is by itself a legal entity the words “General Manage” were merely descriptive of the person representing that company. Secondly, the plaintiff further contended that the description of 1st Defendant was a misnomer which could be amended by leave. In its Ruling, the High Court of Lagos per Dickson, J. who heard the case held thus:-
1. That the 1st Defendant was not a juristic person, and as such could not be sued.
2. That there was no misnomer of the 1st Defendant as this was not a case where the Defendant had been sued in a wrong name. Moreover, the case cited by the Plaintiff’s counsel dealt only with instances where actions were commenced in the name of a wrong person, and this was not the case here.
In Maersk Line v. Addide Ltd. & Anor. (2002) 4 SCNJ 433; a case with almost the same facts as Agbomagbe Bank Ltd. v. General Manager G.B. Olivant (supra); the Supreme Court Per M. E. Ogundare, JSC (of blessed memory) with Wali, Onu and Kalgo, JJSC concurring and Ayoola, JSC dissenting; had cause to review the leading authorities on this vexed issue of proper parties and one of the cases cited was Emecheta v. Ogueri (1996) 5 NWLR 227 at 240 where Rowland, JCA; delivering the lead Judgment of this Court which Katsina-Alu and Okezie JJCA concurred, restated the position taken in the earlier authorities, that the law is settled that a non-justice person, generally cannot sue or be sued. See the dissenting Judgment of Ayoola JSC who restated this point thus:-
“A person who is made a party to an action either as plaintiff or as a defendant must be a legal person or, if not, a body vested by law with power to sue or be sued. (See Agbomagbe Bank Ltd. v. Gen. Manager, G. B. Olivant Ltd. (1961) All N.L.R 166. In Okechukwu v. Ndah (1976) NWLR 368 at 370; it was held that:- “If it is successfully shown that a party to an action is not a legal person, that party should be struck out of the suit, and if such party was expressed to be the plaintiff the action should be struck out.”
It is pertinent at this juncture to allude to Order 14 Rule 17 of the Kwara State High Court (Civil Procedure) Rules, 2005; under which the Appellant’s Application to strike out the suit of the Claimant/Respondent was predicated and order 14 Rule 28 thereof under which the claimant/Respondent predicated his Reply and the Court below took umbrage to dismiss the Application for striking out the Claimant/Respondent’s suit. Order 14 Rule 17 States thus:-
“17 (1)- Any application to add or strike out or substitute or vary the name of claimant or defendant shall be made to the Court by motion.”
Order 14 Rule 28 on the other hand provides that:-
“28. Any person carrying on business within the jurisdiction in a name or style than his own name may be sued in such name or style as if it were a firm name, and so far as the nature of the case will permit, all rules relating to proceedings against firms shall apply.”
From the marginal note of order 14 Rule 17(1) it is clear that, that Rule relates to an application to add or strike out or substitute or vary the name of a Claimant or Defendant.
In this case the Defendant/Applicant/Appellant sought to have its name struck out for being a non-juristic person who can be sued as the name upon which it was sued is unknown to law. It should also be noted that the Defendant had entered a conditional appearance by its Memorandum of Appearance filed and dated the 2nd April, 2009 while its statement of Defence was filed on the 23rd day of October, 2009 and by way of proceedings in Lieu of Demurrer, pleaded in paragraph 11 thereof, thus:-
“11. The Defendant shall contend at the hearing of this case as follows:-
1. That the Defendant, by the name it is sued is not a juristic person as there is no limited liability company registered under the Corporate Affairs Commission as “Zain Nigeria Ltd.”
The learned counsel for the Respondent and indeed the Court below could not and cannot seriously contend and hold as they had/have done that order 14 Rule 17 does not apply to the issue as to whether the Defendant/Appellant or Zain Nigeria Limited is a juristic person. It was upon the grounds of her motion to strike out, paragraphs 4 and 5 of the Affidavit in support thereof and paragraph 11(1) of the Statement of Defence that Defendant/Applicant called for the striking out of the Defendant’s name for not being a juristic person and a fortiori that the Court lacked jurisdiction to entertain the suit instituted against a non-existing person be it artificial or natural.
If the Court had sustained the prayers of the Appellant the name of the Defendant would have been struck out for want of jurisdiction since the Plaintiff had sued a non-juristic or non-existent entity natural or artificial. Alternatively if the Claimant/Respondent was diligent enough to bring an Application for amendment upon furnishing the Court below with reasonable explanation for suing a wrongly named person, then the proper Defendant would have been substituted for Zain Nig. Ltd the misnamed/Defendant in this appeal.
Let it be added herein that the fact that the Appellant had received and reacted to the processes filed by the Respondent to the extent of admitting some aspects of the Respondent’s Claim as in paragraph 5 of the Appellant’s Statement of Defence was/is immaterial by virtue of Order 26 of the Kwara State High Court (Civil Procedure) Rules, 2005 which has abolished demurrer proceedings but rather entrenches “Proceedings In Lieu of Demurrer”. That Order provides unequivocally and mandatorily in Rules 1, 2 and 3 thereof inter alia:
“1. No demurrer shall be allowed.
2. Any party shall be entitled to raise by his pleading any point of law, and any points so raised shall be disposed of by Judge before or at the trial.
3. If, in the opinion of the Judge the decision on the point of law substantially disposes of the whole action, or of any cause of action, ground of defence, set-off, counter-claim, or reply therein, the Judge may thereupon dismiss the action or make such other order therein as may be just.”
Similar provisions to Rules 1, 2 and 3 of Order 26 above cited, fell for interpretation and determination in Ebere v. Anyanwu (2006) ALL FWLR (pt. 315) 131; where this Court, Port Harcourt Division, was called upon to decide on an appeal against the procedure adopted by the Defendant/Appellant in bringing a Motion after filing her Statement of Defence in the lower Court and sought for the dismissal of the Plaintiffs/Appellants’ claim for want of reasonable cause of action, lack of locus standi and incompetence of the suit which the trial Judge obliged the Defendants/Respondents. There, Aderemi JCA (as he then was) who read the lead Judgment relied Egbuziem v. Egbuziem (2005) 4 NWLR (pt. 916) 488; Santa Fe Drilling (Nig.) Ltd. v. Awala (1999) 6 NWLR (pt.608) at 623 and Foko v. Foko (1968) NMLR 441; at pages 142-143 (though with due respect he mixed up the purport of proceedings in lieu of demurrer) posited inter alia:-
“In short though demurrer proceedings have been abolished in our civil procedure, a point of law which if determined would put an early end to a clearly bad case whose ultimate end would be a dismal failure could be raised in limine. So also is that despite the abolition of demurer, Rules of Court as presently Constituted, permit a defendant who has filed his pleadings to include therein (an objection which) if taken, (would) put an end to the proceedings. In the latter case when the point of law intended to be taken has been clearly pleaded evidence would have to be led. Where, however, the point or points of law are raised by way of an application on notice, a Court of law in determining that application must have reference to only the Statement of Claim and see whether it discloses a reasonable cause of action or not. Averments in the statement of Defence, if one has been filed must not be looked at, at that stage; for the law presumes the Defendant to have admitted as true at that stage all the averments in the statement of claim but is contending that such averments do not give rise to a cause of action.”, his dictum is to a large extent germane on the interpretation of the Rules on the procedure in question”.
However, the decision by the Calabar Division of this court in Mobil Producing Unlimited v. Uwemedimo (2006) ALL FWLR (pt 313) at 116 threw more fight on the purposive connotation and construction of this provision, where in interpreting order 24 Rule 1 of the Federal High Court Rules, 1999 which is in pari materia with order 26 of the Kwara State High Court (Civil Procedure) Rules, 2005; enunciated the principles embedded in the procedure thus:
1. The Rule contemplates that parties to the suit must have filed and exchanged their pleadings and the defendant in his pleading, must have taken out legal grounds or questions capable of, or intended to defeat the plaintiff’s statement of claim.
2. The Defendant may also, in his statement of Defence, attack the Statement of Claim on legal grounds or may otherwise apply to have any issue set down for trashing out in a trial.
3. There has to be an application by the objecting party to set down the matter for summary hearing pursuant to having a summary Judgment without full-scale hearing.
4. Such application has to be supported by an affidavit verifying the facts; and at least one of the paragraphs of such affidavit must state that in the Applicant’s belief, his opponent has, in spite of his pleadings, disclosed no reasonable cause of action or defence, as the case may be. See also Ntuks V. N.P.A (2007) ALL FWLR (pt. 387) 809 at 828 per Ogbuagu, JSC, Tabiowo V. Disu (2008) 7 NWRL (Pt. 1087) 533; Okito v. Obioru (2007) All FWLR (pt 365) at 568; Ketu V. Onikoro (1984) 10 S.C. 265 at 269 and generally the Civil procedure in Nigeria (Federal High Court, State High Courts and F.C.T. Abuja High Court Volume I, 1st Edition, by Sebastine Tar. Hon (SAN) at page 482-490.
By the foregoing provisions of the Rules and the authorities above cited, the learned counsel for the Appellant was right when he submitted that the fact that the Defendant/Appellant had joined issues by filing its statement of Defence did not preclude the raising of the issue of jurisdiction as done by way of preliminary objection or motion to set aside for that is the purport of proceedings in lieu of demurrer as dictated particularly by Rule 2 of order 26 of the Kwara State High Court (Civil Procedure) Rules, 2005 which the Defendant/Appellant fully complied with in the lower court. See Lasisi Fadare v. Attorney General of Oyo State (1982) 4 SC. 1: and Kingsley Madu v. Victoria Ononuju & Anor. (1986) 3 NWLR 23.
Commenting also on order 24 Rules 1, 2, and 3 of the Uniform High Court Rules or order 22 Rules 1, 2 and 3 of the Lagos State High Court Rules which provisions are in pari materia with order 26 Rules 1, 2 and 3 of the Kwara State High Court (Civil Procedure) Rules, 2005; the learned Author of PRACTICE & PROCEDURE OF THE SUPREME COURT, COURT OF APPEAL AND HIGH COURT OF NIGERIA, 2ND EDITION DR. T. AKINOLA AGUDA at page 279 paragraphs 25.10-25.11 posited in part as follows:
“Under the Rules any of the parties to the proceedings may raise a point of law by his pleading. Once this happens one of the parties may apply for an order for the point of law so raised to be set down for hearing and disposal. The Court will usually make an order accordingly if the court is of the opinion that the point of law so raised may substantially dispose of the whole case or a particular cause of action or a particular defence for example, a set-off a counter-claim, or a reply. As can be seen the application under the above provisions can only be usefully made after pleadings have been completed, or at least after the statement of defence had been filed since conceivably it is only by a statement of defence that a point of law as anticipated by the Rules can be raised. If a defendant feels that the plaintiff’s statement of claim does not disclose a cause of action in law then he should proceed under rule 4.
An application under the present heading should be made after the defendant has filed his statement of defence and in that defence has raised a point of law. See Lasisi Fadare v. Attorney General of Oyo State (1982) 4 SC. 1: and Kingsley Madu v. Victoria Ononuju & Anor. (1986) 3 NWLR 23. As Romer L.J, said in Everett v. Ribband’s (1952) 2 Q.B 198, 206, “where there is a point of law which, if decided in one way is going to be decisive of litigation, advantage ought to be taken of the facilities afforded by the Rules of Court to have it disposed of at the close of pleading or very shortly afterwards”. See also Yeoman Credit Ltd. v. Latter (1961) 1 WLR. 828; (1961) 2 ALL ER. 294. Also as the West African Court of Appeal pointed out in John Mills v. Franklin Beatrice Awoonor Renner (1940) 6 WACA. 144, 145, “it would be manifestly absurd to suggest that a court was bound to proceed with the taking of lengthy evidence of the parties to a suit where it appeared that the whole suit could be decided upon the pleading without any evidence being called.” See also Esugbayi Eleko V. Frank Morrish Baddley and Another (1925) 6 N.L.R., 65; Agbizounon V. The Northern Assurance Co. Ltd (1934) 11 N.L.R. 177 Adler V. Dickson (1955) QB. 158; Addis V. Crocker (1961) 1 QB. 11; and Richards v. Naum (1967) 1 QB. 620″.
Apart from the above provisions of the Rules, the law is settled on a plethora of authorities that because of the fundamental importance of jurisdiction in the adjudicatory process, it can be raised at any stage of proceedings in the lower court and even for the first time on appeal in this court or the Supreme Court, in that no matter how beautifully and brilliantly the proceedings were conducted, if eventually it is discovered that the court be it of first instance or of appellate jurisdiction, lacked the requisite jurisdiction to entertain the suit, the entire proceedings will tantamount to a complete nullity. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341; A.O. Obikoya V. The Registrar of Companies and Official Receiver of Pool House Group (Nigeria) Ltd. (1975) 4 S.C. 31 at 34; Ezomo V. Oyakhire (1985) 2 S.C 260 at 282 per Karibi-Whyte; African Newspapers of Nigeria Ltd. & Ors. v. FRN (1985) 4 S.C (pt. 1) 76 at 128; A.G. Federation v. Abubakar (2008) 16 NWLR (pt 1112) 135 at 158 paras. E-F, Okolo V. UBN Ltd. (2004) 3 NWLR (pt 859) 87 at 108 paras. B-D Inakoju V. Adeleke (LADOJA’S Case) (2007) 4 NWLR (pt 1025) 423 at 588 paras, F-G. Per Tobi, JSC.
It is therefore puerile for the learned counsel to argue that order 14 Rule 17 of the Kwara State High Court (Civil Procedure) Rules does not have anything to do with the prayers of the Appellant in the motion dismissed by the lower court. We shall come back to this issue anon but before then let us reflect on order 14 Rule 28 which the court below invoked to hold that the Appellant is a juristic person. I have had a careful perusal of the order and Rule in question and part II of order 14 is clearly headed: – “Action against Firms And Persons Carrying on Business in Names other than their own.”
Rule 28 specifically provides or empowers and confers the discretion on any person carrying out business within the jurisdiction of the High Court of Kwara State in a Business Name or Style other than his name to sue and be sued as if such a name or style is that of a firm and all rules relating to proceedings against firms shall apply. Order 14 Rule 24 which is closely related to the above cited Rule, envisages a situation where two or more persons claiming or alleged to be liable as partners and doing business within the jurisdiction may sue or be sued in the name of the firm, if any, of which they were parties when the cause of action arose and any party to an action may in such case apply to the Court for a statement of the names and addresses of the persons who were partners in the firm when the cause of action arose, to be furnished in such manner and verified on oath or otherwise as the Court may direct. Clearly too, this Rule deals with actions by and against firms.
Rules 25, 26, 27 and 28 which marginal notes relate to “Disclosure of partners names”, “Appearance of partners”; “Application of rules to actions between Co-partners” and “Persons trading as firm” respectively, are also interrelated and deal with actions against firms and persons carrying out businesses in their business names or styles other than their surnames.
For the avoidance of doubt, order 14 Rule 27 of the Kwara State High Court (Civil Procedure) Rules 2005 which precedes Rules 28 specifically provides thus:-
“27. Rules 24, 25 and 26 shall apply to proceedings between a firm and one or more of its partners and between firms having one or more partner in common, provided such firm or firms carry on business within the jurisdiction.”
From the foregoing provisions, there is nothing indicating that the court below could confer an unknown but purported limited liability company with legal status under order 14 Rule 28 which deals with the power of persons trading with Business Names and Styles, partnerships or Firms to sue or be sued in such names or styles as if they were Firm Names. The learned trial Judge failed to distinguish between a Firm, Partnerships and a Limited Liability Company incorporated under the Companies And Allied Matters Act which has by section 37 and 38 thereof been conferred with certain capacity and powers (see section 37 of CAMA Cap. C. 20 Laws of the Federation of Nigeria, 2004).
See specifically section 38(1) which stipulates that:-
“38. Except to the extent that the Company’s Memorandum or any enactment otherwise provides, every company shall, for the furtherance of its authorised Business or objects, have all the powers of a natural person of full capacity.”
On the other hand, Black’s Law Dictionary seventh Edition by Bryan A. Garner Editor-in-Chief at page 649 defines ‘Firm’ as “a noun”. 1. The title under which one or more persons carry out business jointly. 2. The association by which persons are united for business purposes. Traditionally, this term referred to a partnership; as opposed to a company. But today it is frequently used in reference to a company. See Law Firm.”
The same dictionary at page 274 Defines Company as: “A corporation or less commonly, an association, partnership, or Union – that carries on a commercial or industrial enterprise; a corporation, partnership, Association, Joint-stock Company, Trust fund, or Organized Group of persons, whether incorporated or not, and (in an official capacity) any receiver, trustee in bankruptcy, or similar official, or liquidating agent, for any of any of the foregoing”.
Commenting on orders 11, Rule 9 of the Uniform Rules of the High Courts and 13 of Rule 35 of Lagos High court Rules; which are in pari materia with order 14 Rules 24 and 28 of Kwara State High Court (Civil Procedure) Rules, 2005; the learned Author of “Practice & Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria”, 2nd Edition; Dr. T. Akinola Aguda (of blessed memory) at Page 115-116 (paras. 12-77-12-78) thereof again under the heading “Actions by or against a Partnership” has this to say:-
“In the case of a firm or a partnership (not being an incorporated body), in order to succeed against such a body as such, an action must be brought either (a) against all the members of the partnership, or (b) against the partnership in its registered name, or (c) against one or more of the partners as representatives of the Partnership; M. K. Marki v. Hassan Said (1961) ALL NLR 502, 506; S.C.
However, the Rules quoted above merely enables two or more of such partners to sue or be sued in the name of the firm. When some or all members of a partnership are sued in the name of the partnership, such members sued must be partners who were member of the partnership when the cause of action arose. If only some of person making up the partnership take action on behalf of the partnership then the defendant will be entitled to be supplied with the names and addresses of the partners”.
On the other hand, the learned Fidelis Nwadialo, SAN also of blessed memory in his book “Civil Procedure in Nigeria,” 2nd Edition at pages 98 and 99, also illuminated and elucidated more on the differences between a Partnership and Limited Liability Company while commenting on the provisions of Orders 11 Rule 9 of the Uniform Rules and Order 14 Rule 35 of the Lagos High Court (Civil Procedure) Rules which are replicated in Order 14 Rules 24 and 28 of the Kwara State High Court (Civil Procedure) Rules, 2005, the subject of the lower Court’s decision which is also the subject of our consideration herein.
The learned Author after stating the definition of Partnership as contained in Part B of the Companies and Allied Matters Act, then of 1990; posited that from that definition, it is clear that a firm is not a juristic person it being “an unincorporated body”. “A firm” according to him “may be carrying on business under a business name. If such business name does not consist of the true surnames of all the Partners without any addition other than the true forenames of the individual Partners or the initials of such forenames, then the firm should register such business name under part B of the Companies and Allied Matters Act 1990 (see Section 656 (1) of the Act (now Cap. C. 20 Laws of the Federation, 2004). The name thus becomes the registered business name of the firm. An individual carrying on business under a business name may similarly register his business name in corresponding circumstances”.
Reflecting particularly on the purport of Order 11, Rule 9 of the Uniform High Court Rules and Order 14, Rule 35 (Lagos) replicated in Order 14 Rules 24 and 28 of the Kwara State High Court (Civil procedure) Rules. 2005, he further explained inter alia at page 99:-
“Although neither a firm nor its registered business names is incorporated, the Rules allow partners of a firm to sue or be sued in its registered business name. Thus, under Order 11, Rule 9 of the Uniform High Court Rules or Order 14, Rules 35 (Lagos), any two or more persons claiming or alleged to be liable as partners and carrying on business within the jurisdiction may sue or be sued in the name of the firm of which such person were partners at the time the cause of action arose.
However, a party to such an action may apply to the Court for a Statement of the names of and addresses of partners to be furnished in such manner and verified on oath or otherwise as the Court may direct.”
As I had earlier held, the provisions of Order 14 Rules 24 and 28 refer to Actions by or against partners or persons carrying on business in names other than theirs or firms properly so called and have nothing to do with Limited Liability Company which ought to be a juristic person in order for it to sue or be sued in its proper or corporate name. Going by the judicial authorities and writers analysis above highlighted, the learned trial judge erred in law by importing/invoking the provisions of Order 14 Rule 28 to confer legal personality on Zain Nigeria Ltd; just because the Claimant/Respondent described and ended the name of the Defendant/Appellant with “Ltd’. Even from what the learned Authors have said it becomes even clearer that the firm can only be sued by/in its registered name and nothing less.
Before rounding up this issue, it would be recalled that the learned counsel for the Appellant had argued that where an objection is taken as they had done on the competence of the suit for that the Defendant as appeared in the Writ of Summons and Statement of Claim was not a juristic person, the Claimant/Respondent would have taken steps to remedy the defect instead of persisting in his argument that Zain Nigeria Ltd. is a juristic personality.
The contention of the learned counsel on the other hand is that the Defendant/Appellant accepted the processes and even filed a Statement of Defence where it owned up or admitted part of the claim of the Claimant/Respondent and as such, there is the presumption that the Appellant accepted the name under which it was sued. There is no doubt as I had earlier noted, that the Defendant/Appellant filed a Statement of Defence but suffice it to say that it entered appearance under protest and raised the issue of law in paragraph 11(1) of the Statement of Defence which culminated in this appeal. For instance the Defendant in paragraph 5 of the said statement of Defence stated thus:-
“5. The Defendant admits paragraph 6 of the Statement of Claim but avers that the Claimant was paid the full sum of N150,000.00 (One Hundred and Fifty Thousand Naira) as rent for the 15 year lease of land as agreed. No deductions of N20, 000.00 or any sum was made”.
By this admission ordinarily the lower Court would have been right when it held that Zain Nig. Ltd. is the name by which the Defendant/Respondent is known and further that even the Respondent accepted the processes served on it by that name. However, judicial authorities seem to differ from the position taken by the learned Counsel for the Respondent nay the Njemanze v. Shell B.P. Port-Harcourt (1966) A.N.L.R 8 at 10, Court as above highlighted. In the Plaintiff sued “The Shell B.P. Port-Harcourt” and the learned Counsel for Defendant without giving the actual name of the Company/Defendant objected to the suit in that there was no company known as “Shell B.P. Port-Harcourt”. Counsel for the Plaintiff on the other hand asked for leave to amend, but the Judge refused leave and struck out the claim. The plaintiff appealed from the refusal on the ground that the Defendant’s counsel stated to the Judge “that it (viz. the company) has now assumed a new name viz. the Shell B.P. Petroleum Development Co. of Nigeria Ltd. and no longer answers the name Shell B.P. Port Harcourt (but there was no evidence of this).”
Bairamian, JSC who delivered the lead Judgment of the Supreme Court with Onyeama and Ajaegbo, JJSC concurring, cited with approval the decision in Agbomagbe Bank Ltd. v. General Manager G.B, Olivant Ltd, & Anor. (1961) 1 ALL NLR 776 and alluding to a similar argument as put forward herein by the learned counsel for the Respondent that the Defendant put up appearance in Court, that there were magazines issued by Shell B.P. that letters were addressed to Shell B.P. and that they held themselves out as Shell B.P. Port Harcourt; therefore they could be sued as such; held at page 10 of the Report thus:
“It was true that the company put in an appearance; but that did not prevent it from objecting that the Defendant named in the writ of summons was not a legal person. An officer of the company must have been served with the writ, and it was right that the company should appear and object, as it wished to do, that the action was not properly constituted.”
On the contention by the learned counsel in this Appeal that the Appellant did not furnish an alternative or proper name such that the Court below ought not to have speculated on the real name of Defendant and therefore was right in presuming that Zain Nigeria Ltd. was the name of the Defendant and a legal/juristic person capable of being sued; the learned Justices also supplied the answer when they admonished litigants nay learned counsel and Courts thus:
“This appeal illustrates the need for care in bringing actions. It is common knowledge, or ought to be, that a company is registered under the Companies Act and has a registered name: S.18 (2) (See now sections 27, 29, 30, 31 of 37 and CAMA, Cap. C.20 LFN, 2004). This can easily be found out; it has to be shown on its sign board at its place of business pursuant to Section 65(1); and it can be ascertained under Section 231(5) of the Companies Act from the Registrar. There is little excuse, if any, for a Plaintiff who sues for wrongful dismissal not suing the company by its registered name. If there was any excuse for the mistake, no affidavit of facts was prepared; the need for it would have been realised if the authorities were looked up.”
The learned justice also reflected on the authority of Alexander & Co. (Suing as a firm) v. Ramere Ltd. (1948) 2 K.B. 434; where the plaintiff was wrongly named and its solicitors applied on an affidavit to amend in the High Court, but the amendment was refused and affidavits of more facts were prepared on Appeal, presumably with leave. Having been diligent in explaining away the circumstances of their mistake in suing a wrong name, their application for amendment or substitution of the proper name was granted. Their Lordships in the Njemanze case were of the view that the above cited case is useful on the need for diligence to explain the circumstances for the error in stating the name of the party.
Although in this case, the learned counsel for the Respondent was basking in the euphoria of presumption that Zain Nigeria Ltd. was a juristic person, without calling for an Amendment as if that name was a misnomer, the learned justices in dismissing the application for amendment in the Njemanze case eventually held at page 11 of the Report that it was not enough to complain of the trial Judge’s refusal to amend; it was necessary to show that there were reasonable grounds of excuse in naming the defendant wrongly and that the name Shell B.P. could not have given rise to any reasonable doubt as to which company was being sued.
See also Maersk Line & Anor v. Addide Investment & Anor (supra), Ayoola, JSC, who in his dissenting Judgment earlier cited, relied on Okechukwu v. Ndah (1976) N.M.L.R. 368 at 370; where it was held that: – “If it is successfully shown that a party to an action is not a legal person, that party should be struck out of the suit and if such party was expressed to be the plaintiff the action should be struck out”.
The emeritus legal luminary then added: “However, that a person sued is not a legal person does not preclude the court from amending the title of the action to show the correct name of the party sued if it is shown to the satisfaction of the court that it was a case of misnomer. Such power of amendment is covered by order 32 and such like enactments. The existence of such power of amendment has been acknowledged in several cases. In Njemanze v. Shell B.P. Port-Harcourt (1966) (Vol. 4) N.S.C.C. 6 the court recognized such power and set out the terms of its exercise thereof when it said:-
An amendment is often readily granted where what is involved is a mere misnomer. See Olu of Warri & ors. V. Esi & Anor. (1958) Vol. 1 N.S.C.C. 87; where this Court said:
“The cases Establishment Baudelof v. R.S. Graham & Co. Ltd. (1953) 1 All E.R. 149 and Alexander Mountain & Co. V. Rumere Ltd. (1948) 2 All E.R 483…are authorities to show that in a case of misnomer; if application is made to amend the writ by substituting the proper names, it should be granted”.
I would have gone on and on with the illuminating and analytical expose of the learned Emeritus Law Lord on the subject of misnomer or where a right and known party is sued in a wrong name and/or where on the contrary a non-juristic person cannot be substituted with a juristic entity; as the issue was not canvassed before us.
Suffice it to say that the majority opinion in the Maersk Line v. Addide Ltd. case also relied on Njemanze v. Shell B.P. Port-Harcourt (supra) and on the question of misnomer, alluded to the dictum of Rowland, J.C.A. with Katsina Alu (as he then was) and Okezie, J.J.C.A, concurring in Ogueri V. Emecheta (supra) the approval of the dictum of Dickson, J. in Agbomagbe V. General Manager G.B Olivant Ltd. thus:-
“It was further held, that naming a non-juristic person as a defendant is not a misnomer and cannot be amended to substitute a juristic person. See also Manager S.C.O.A. Benin City v. Momodu (unreported) suit No. SC/23/1994 delivered on 17th November, 1996; it was held that a non-juristic person cannot sue and be sued”.
The learned Justices of the Apex Court eventually held that the learned counsel for the defendants misconstrued the above dictum which he cited to buttress his submission that a juristic person cannot substitute a non-juristic person, as the learned justices of the Court of Appeal (as they then were) had observed earlier that the capacity in which the 3rd Defendant was sued had been challenged that is, that the said 3rd Respondent was not a legal personality known to law and there was no application for amendment brought by the Appellant before the lower court to insert the name of the 3rd Respondent.
Their Lordships then threw in the clincher at page 458 paras. 5-35 of (2002) 4 S.C.N.J that if an application for Amendment was brought and sufficient reasons given for naming the party wrongly, it might have been granted and there would have been no need for the dictum. However, the Plaintiff in that case just like the scenario we had in the lower Court in this case, did not make any application for amendment even after the learned counsel for the Plaintiff had raised objection to the 1st Defendant being sued in the name of a Trade Mark.
In the Maersk case, the Plaintiffs even deposed to a Counter-Affidavit that the 1st Defendant was rightly sued and did not admit that there was a misnomer. The trial Judge suo motu then went ahead to effect an amendment directing the Plaintiffs to so amend the name of the 1st defendant “to its real name”, which real name did not appear in the Ruling of the learned trial Chief Judge.
Per Ogundare, J.S.C who read the lead judgment, hit the nail on the head when he remarked at lines 30-35 page 458 of the Law Report thus:-
“When counsel for the defendants took objection to the joinder of 1st Defendant on the ground that it is not a juristic person, it was open to counsel for the Plaintiffs to apply for amendment, on the ground of misnomer. He did nothing of sort. Rather he argued and the learned Chief Judge agreed with him, that the 1st Defendant was a juristic person. Clearly, this was a course of argument totally inconsistent with asking for amendment of the name of the 1st Defendant”.
I adopt the above position taken by His Lordship as the facts of Maersk case are almost on all fours with the Appeal in hand. Herein, the Plaintiff/Respondent did not even attempt to file any Counter-Affidavit or an Application for an amendment on ground of misnomer, in spite of the objection by learned counsel for the Appellant. Rather, the Plaintiff/Respondent persisted in his arguments and the Court agreed with him that Zain Nig. Ltd. was a juristic person known to law even when the Plaintiff/Respondent who had the burden to show by tendering the certificate of incorporation of the Defendant in a Counter-Affidavit, that the Defendant was sued in its proper name failed so to do. (See The General Officer Commanding & Ors. v. Christiana Olufunke Fakayode (1994) 2 NWLR 744, C.A; Governor of Kwara State & Ors. V. Lawal & Ors. (Supra) at 379 paras, B-C and H-D; Iyke Medical Merchandise v. Pfizer Inc. (2001) 10 NWLR (Pt. 722) at 540 and Fawehinmi V. NBA (No. 2) (1989) 2 NWLR (pt. 105) 558).
The court was satisfied with the contention of the plaintiff/Respondent’s counsel that the Defendant/Appellant had received the writ of summons and statement of claim and even entered appearance and filed a statement of Defence where in paragraph 5 thereof admission of part of the claim was acknowledged. Accordingly, it was presumed and purportedly held upon invoking under order 14 Rule 28 of the Kwara State High Court (Civil Procedure) Rules, 2005 that the Defendant could be sued as a juristic person in the name Zain Nigeria Ltd having ended her name with ‘Ltd’ in accord with the status of Limited Liability Company under the Companies and Allied Matters Act.
Going by all the authorities considered on this issue, I am bound to answer the first question in the negative and hold that Zain Nigeria Ltd. even going by the Statement of claim and the documentary Exhibits frontloaded as Agreement at page 10-15, the site plan at page 16; a Letter captioned “RE: Property situate at Oke Gaa Ganmo Via Ilorin, Kwara State Executed Agreement-ILO -18A” at page 19 of the Records, Lease Agreement at pages 20-24, Site Plan at pages 25-26; the Lessee (Defendant/Appellant) signed as VEE NETWORKS NIGERIA LIMITED, and Celtel Nigeria Limited respectively.
I am also of the considered view that, although the letter appearing in pages 17 and 18 of the Records from Solomons Chambers described the Defendant as VEE NETWORK NIG. LTD. (Now ZAIN) NIGERIA LIMITED; there is no proof that the VEE NETWORK NIG. LTD had changed its name to either Celtel or Zain Nigeria Ltd. These are matters of fact which the Claimant/Respondent ought to have disclosed in her Counter-Affidavit by annexing the certificate of Incorporation as prima facie evidence of the name of the Company. Not having done so, it is presumed that the Claimant/Respondent sued a wrong person or non-juristic person in the Lower Court. This issue is therefore resolved against the Claimant/Respondent and in favour of the Defendant/Appellant.
ISSUE NUMBER II which is whether the learned trial Judge was right in his interpretation, construction and application of Order 14 Rules 17 and 28 of the Kwara State High Court (Civil Procedure) Rules, 2005 to the Appellant’s case, I had earlier in my resolution of Issue One (1) extensively dealt with this second issue. Suffice it to say that having considered the totality of the submissions of the respective counsel based on the materials before me, the Court below was wrong to have ruled as it did that Order 14 Rule 17(1) of the Kwara State High Court (Civil Procedure) Rules, 2005 had no relevance to the motion filed by the Defendant/Appellant.
The lower Court was also wrong to have invoked Order 14 Rule 28 of the Rules to confer Zain Nigeria Ltd with juristic personality on the spurious reasons advanced by the learned counsel for the Plaintiff/Respondent. Accordingly, following the authorities earlier cited and analysed particularly the dictum of Augie, JCA; in the recent case of Idanre Local Government & Anor. V. Governor of Ondo State & 5 ors. (2010) 14 NWLR (pt. 1214) 525-426 at 509; who adopted the decisions in Okechukwu & Sons v. Ndah (1967) NWLR 368; Olu of Warri v. Esi (1958) N.S.C.C. 87 and Agbomagbe Bank v. General Manager G.B Olivant Ltd. (supra); the learned trial Judge lacked the requisite jurisdiction to entertain the suit since the Claimant/Respondent sued a non-existent Defendant or a non-juristic person.
Therefore the only option open to this Court is to strike out the name of the Defendant as it appeared/appears in the suit herein and in the lower Court and I so do. In essence this appeal is meritorious and is accordingly allowed. The Ruling of the learned trial Judge delivered on 5th October, 2010 wherein he conferred juristic personality on Zain Nigeria Limited, is hereby set aside. The Claimant/Respondent’s suit in the Lower Court is equally struck out. Parties shall however bear their respective costs in this Court.
TIJJANI ABDULLAHI, J.C.A.: I have had the advantage of reading in draft, the lead Judgment of my learned brother, Agube, JCA, just delivered and I am in complete agreement with his reasoning and conclusions that the appeal is pregnant with a lot of merit.
I too allow it in the terms set out in the lead Judgment and abide by the order as to costs contained therein.
OBANDE OGBUINYA, J.C.A.: I have had a preview of the alluring leading judgment delivered by my learned brother, Ignatius Igwe Agube, JCA. I share in his reasons and conclusion therein.
It admits of no argument that parties are inevitable and integral part of adjudication. No court of law can engage in adjudication without proper parties before it to ventilate their grievances. In law, a person must be a recognized juristic personality to qualify as a proper party in any proceedings pending, either as a plaintiff or a defendant, before any court of law for it to exercise its jurisdiction. Thus, in the case of Olariede v. Oyebi (1984) 1 SCNLR 390 at 406, Eso, JSC, intoned:
“… I am in full agreement, that a person who, asserts the right claimed or against whom the right claimed is exercisable must be present to give the court the necessary jurisdiction.”
See, also, Plateau State V. A-G, Fed (2006) 3 NWLR (Pt. 967) 346; Admin./Exec., Estate, Abacha v. Eke – Spiff (2009) 7 NWLR (Pt. 1139) 97. There was no concrete or impregnable evidence, placed before the lower court, to demonstrate that the appellant, Zain Nigeria Limited, was/is a juristic person with that appellation in order to infuse into it, the lower court, the requisite jurisdiction to entertain the respondents’ action.
Let me place on record that with the appellant drained of juristic personality, the admission of payment, it made in paragraph 5 of its statement of defence, pales into insignificance. The reason is obvious. By the appellant’s non-juristic status, the lower court, as already noted, was disrobed of the jurisdiction to hear the matter filed against it. Jurisdiction, the linchpin or spinal cord of all adjudications, which oxygenates all proceedings by keeping them alive, is not amendable to waiver, admission, acquiescence, collusion or compromise of any kind nor can parties donate jurisdiction to a court using any of these conducts, see Okolo v. UBN Ltd. (2004) 3 NWLR (pt. 859) 87; Mobil Prod. (Nig.) Unltd. V. Monokpo (2003) 18 NWLR (Pt. 852) 346; Gafar vs. Govt. Kwara State (2007) 4 NWLR (Pt. 1024) 375. It flows from the above that the appellant’s admission is not potent enough to invest jurisdiction in the lower court over the respondents’ suit, not when the appellant, duly, entered conditional appearance to notify the respondent of its intending protestation. The pernicious effect of the foregoing is that the respondents’ action; in the lower court, is plagued by incompetence on account of want of juristic personality of the appellant.
In the light of these reasons, added to more elaborate ones offered in the leading judgment, I, too, allow the appellant’s appeal and strike out the respondents’ action in the lower court. I abide by the consequential orders made in the leading judgment.
Appearances
Akin Akintoye II with him Josiah Adebayo Esq. For Appellant
AND
A.R. Ahmed Esq. For Respondent
