CORPS MARSHAL v. GANA (2022)

CORPS MARSHAL v. GANA

(2022)LCN/16305(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, June 02, 2022

CA/ABJ/CV/503/2020

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Hamma AkawuBarka Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

THE CORPS MARSHAL APPELANT(S)

And

MOHAMMED GANA RESPONDENT(S)

RATIO:

THE LEAVE OF COURT IS NOT IN ALL CASES REQUIRED FOR THE ISSUE OF JURISDICTION BE RAISED FOR THE FIRST TIME ON APPEAL

It should be noted that jurisdiction is a threshold issue; leave of Court is not in all cases required for it to be raised for the first time on appeal. In IKE vs INEC & ORS (2010) LPELR-4293(CA) this Court held:
“…If any issue not touching on or related to jurisdiction is raised without leave of an appellate Court, such issue must be discountenanced. But if the fresh point/issue is on jurisdiction it can properly be filed and argued with or without leave of the Court.” See also OBIAKOR V. STATE (2002) 10 NWLR (PT. 176); GAJI V. PAYE (2003) 8 NWLR (PT. 823) 593; PHARMA DEKO PLC. V. NIG. SOCIAL INS. TRUST FUNDS MANAGEMENT BOARD (2010) LPELR-4849(CA); OKE V. OKE (2006) 17 NWLR (PT. 1008) 224; and M/V GONGOLA V. SMURFIT CASES NIG, LTD (2007) ALL FWLR (PT. 388) 1005 SC. MOHAMMED MUSTAPHA, J.C.A.

THE JURISTIC PERSONALITY OF A PARTY IS SINE QUA NON TO THAT PARTY’S CAPACITY TO MAINTAIN A LEGAL ACTION IN COURT

The juristic personality of a party is sine qua non to that party’s capacity to institute and maintain a legal action in Court. See: MADUKOLU v. NKEMDILIM (1962) VOL.ANLR (PT.2) 581 where the legal capacity of the plaintiff is questioned, it goes to the jurisdiction of the Court and the Court must ascertain that the party has the capacity to sue before it can proceed to hear the matter. Whether that arose at trial or not is unimportant, because jurisdiction being what it is, it can be raised anywhere, anytime; see: AQUA LTD V. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (PT.91) 622; ONYEMA V. OPUTA (1987) 3 NWLR (PT.60) 259. Once the juristic personality of an artificial person is raised, the party in question can discharge the burden only by producing the certificate of incorporation, if it is a company. See: ATAGUBA & COMPANY V. GURA NIGERIA LIMITED (2005) 6 NWLR (PT. 927) 429. Since the issue was not resolved before the learned trial Court, the appellant has every right to raise the issue for determination before this Court. MOHAMMED MUSTAPHA, J.C.A.

LOCUS STANDI IS THE LEGAL RIGHT OF A PARTY TO AN ACTION TO BE HEARD IN LITIGATION

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of the Federal Capital Territory, Abuja, presided by Hon. Justice A. S. Adepoju, delivered on the 31st of January, 2020.

FACTS IN BRIEF:
The Respondent, a taxi driver within the Federal Capital Territory of Abuja, was accosted by agents of the Appellant in charge of traffic law on the 5th of September, 2018 around area one roundabout, in the Federal Capital. As a result of a scuffle that ensued in the process of the enforcement of an alleged traffic violation, the vehicle ended up in a ditch. The Respondent contends he was beaten and forced into a van and taken to the office of the appellant where he was detained; aggrieved, the applicant at trial sought to enforce his Fundamental Human Rights, with an application filed pursuant to Order 2 Rule 2 of the Fundamental Rights Enforcement Procedure Rules, 2009 and the inherent jurisdiction of the Court; seeking the following reliefs:
1. A DECLARATION that, the Respondent’s acts of beating the Applicant in the public and in their office, tearing his clothes, forcing him into their operational Hilux, detaining him for hours and continuous detention of the Applicant’s Mazda 323, YAB 253 YR and Tecno T350 and Tecno 465 without legal justification, has amounted to violation of the Applicant’s fundamental rights to personal liberty, dignity of human person and freedom of movement and right to own immovable Property as guaranteed under Sections 34, 35, 36 and 44 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
2. AN ORDER OF MANDATORY INJUNCTION compelling the Respondent whether by himself, his officers, servants, agents, privies or howsoever named to forthwith release the Applicant’s Mazda 323, YAB 253 YR and Tecno T350 and Tecno 465 and a Further Order restraining them from further detaining, or infringing the Applicant’s fundamental rights, except in strict compliance with the constitutional provisions of the 1999 Constitution (as amended).
3. AN ORDER, for the payment of N100 Million Naira to the Applicant by the Respondent as Aggravated and Exemplary Damages and compensation for the aforesaid violations of the Applicant’s Fundamental Rights.
4. A written Apology published on at least two National Dailies to the Applicant by the Respondent apologizing for the unwarranted and unjustified violation of the Applicant’s fundamental rights personal liberty, dignity of human person and freedom of movement and right to own immovable property as guaranteed under Sections 34, 35, 36 and 44 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
5. Cost of the Proceedings.

The trial Court ordered the Appellant to pay the Respondent N5,000,000 in damages for the violation of fundamental rights; dissatisfied, the Appellant appealed by a notice of appeal filed on the 30th of April, 2020 on Eight grounds shorn of their respective particulars as follows, see page 116 to 121:
GROUND 1:
The learned trial judge erred in law when it held that the Corps Marshal is a juristic person.
GROUND 2:
The learned trial Court erred in law when it held that it has jurisdiction and competence to entertain an action against the ‘THE CORPS MARSHAL’
GROUND 3:
The learned trial Court erred in law when it went ahead to deliver judgment without making any pronouncement on the Notice of Discontinuance filed by the Respondent which has not been moved and was not withdrawn.
GROUND 4:
The learned trial Court erred in law when it held that it has jurisdiction to entertain the suit.
GROUND 5:
The learned trial Court erred in law when it failed to deliver judgment within 90 days after the adoption of the final written address by the parties to the suit.
GROUND 6:
The learned trial Court erred in law when it held that the ‘THE CORPS MARSHAL’ is a juristic person created by statute.
GROUND 7:
The learned trial Court erred in law when it failed/neglected to issue a hearing notice notifying the Appellant of the date of judgment.
GROUND 8:
The judgment of the trial Court is against the weight of evidence.

From these grounds, the following issues were formulated for determination in favour of the Appellant:
1. Whether the trial Court was right when it held that the corps Marshall is a juristic person capable of suing and being sued.
2. Whether the trial Court was clothed with requisite jurisdiction to entertain the matter having regard to the fact that the Court was not properly constituted.
3. Whether the judgment of the trial Court dated 31st of January, 2020 is not a nullity having regard to the notice of discontinuance filed by the appellant.
4. Whether the failure of service of hearing notice on the appellant is not a denial of fair hearing.

The Respondent adopted the issues formulated on behalf of the Appellant.

The Respondent filed a preliminary objection which needs to be resolved, one way or the other before the substance of the appeal is dealt with, if need be.

The preliminary objection questions the competence of grounds 1, 2, 3, 4, 6 and 7 of the grounds of appeal The grounds for the objection are as follows:
1. That grounds 2 and 4 of the notice of appeal deal with non-joinder of Andrew Attah, an officer of the appellant, as a party to the suit, and that issue was not raised and decided by the lower Court.
2. That ground 3 of the notice of appeal deals with the alleged notice of discontinuance and the issue was not raised and determined by the lower Court.
3. That ground three of the notice of appeal deals with non-issuance of hearing notice and that issue was not raised and determined by the lower Court.
4. That grounds 1, 2, 3, 4, 6 and 7 of the notice of appeal of the appellant did not arise from the judgment of the lower Court.
The respondent prays for the striking out of the grounds listed.

It is submitted for the Respondent that grounds 1, 2, 3, 4, 6 and 7 are liable to be struck out because they are raised for the first time before this Court, without leave, learned counsel referred the Court to OGUEBEGO V PDP (2016) 4 NWLR part 1503 page 446 and LEWIS V UBA PLC (2016) 6 NWLR part 1508 page 329.

That at trial, the Appellant’s grouse was merely that “Federal Road Safety Corps” was not added to the name of the Appellant, and nothing about the juristic personality of the Appellant; and also that grounds 2 and 4 contend that the joinder of Andrew Attah was only raised on appeal for the first time, without leave.

That also ground three raised the issue of the notice of discontinuance for the first time before this Court without giving the lower Court opportunity of considering the issue, and therefore did not make any pronouncement on that.

Learned counsel submits also that ground 7 raised the issue of non-service of hearing notice for the first time before this Court; and also that the appellant’s counsel who was before the lower Court did not find it necessary to raise the issue of non-service.

Learned counsel urged the Court to strike out grounds 1, 2, 3, 4, 6 and 7 of the appellant’s notice of appeal for incompetence.

It is submitted for the appellant in response that the appellant raised the issue of jurisdiction arising from grounds 1 and 6 at trial, and also that jurisdiction being what it is, it can be raised at any stage of the proceedings; NASIR V CIVIL SERVICE CMMISSION KANO STATE (2010) LPELR-1943-SC.

That juristic personality can only be donated by law, and as such a non-juristic person cannot institute an action in Court; and that the Appellant did not raise a fresh issue in grounds one and 6, just as grounds 2 and 4 dealing with proper constitution of the Court border on jurisdiction; MADUKOLU V NKEMDILIM & ORS (1962) 2 ALL NLR.

RESOLUTION OF THE PRELIMINARY OBJECTION:
It is clear from the record that grounds 1 and 6 of the notice of appeal were not raised for the first time before this Court, as contended for the Respondent. A careful scrutiny of the record of appeal will reveal that the grounds were raised before the lower Court, that much is clear from page 25 of same. Be that as it may, the grounds are related to jurisdiction, and so could even be raised for the first time before this Court.
It should be noted that jurisdiction is a threshold issue; leave of Court is not in all cases required for it to be raised for the first time on appeal. In IKE vs INEC & ORS (2010) LPELR-4293(CA) this Court held:
“…If any issue not touching on or related to jurisdiction is raised without leave of an appellate Court, such issue must be discountenanced. But if the fresh point/issue is on jurisdiction it can properly be filed and argued with or without leave of the Court.” See also OBIAKOR V. STATE (2002) 10 NWLR (PT. 176); GAJI V. PAYE (2003) 8 NWLR (PT. 823) 593; PHARMA DEKO PLC. V. NIG. SOCIAL INS. TRUST FUNDS MANAGEMENT BOARD (2010) LPELR-4849(CA); OKE V. OKE (2006) 17 NWLR (PT. 1008) 224; and M/V GONGOLA V. SMURFIT CASES NIG, LTD (2007) ALL FWLR (PT. 388) 1005 SC.
The issue of jurisdiction can be raised even orally, being an issue of law; See PETRO-JESSICAENTERPRISESLTD. V. LEVENTIS TECHNICAL CO. LTD. (1992) 5 NWLR (PT. 244) 675. In this regard, I am of the view that whether the Appellant raised the issue at trial or not is immaterial, because the question of whether the Federal Road Safety Commission is the only and proper juristic person to be sued and not the Corps Marshall touches on the jurisdiction of the trial Court, and is therefore a jurisdictional issue. In other words, the Appellant reserve the right to raise it as a fresh issue before this Court with or without the leave of the Court. Thus, and contrary to the submission of learned counsel for the respondent, the grounds, issues and arguments canvassed in support of the appellant are quite valid and therefore competent.
Same goes for grounds 2 and 4, because whether raised at trial or not, the question of the constitution of the Court borders on jurisdiction and so can be raised at any time as well.
Accordingly, the preliminary objection is dismissed without much ado.

ISSUE ONE:
Whether the trial Court was right when it held that the corps Marshall is a juristic person capable of suing and being sued.

It is submitted for the appellant that for a suit to be competent for adjudication by a Court there should be a competent plaintiff and a competent defendant i.e. both parties must be juristic persons who can sue and be sued; learned counsel referred the Court to Section 1 (1) of the Federal Road Safety Commission Act, 2007.

That the Corps Marshall is merely an office, and the officer only a member of the commission and not the commission itself, he cannot sue or be sued as held by the trial Court; learned counsel referred the Court to Section 7 (1) of the Act.

That the Corps Marshall is responsible for the day to day running of the commission, doing so does not make him a juristic person capable of suing and being sued; MOSES V NBA (2019) LPELR- 46918-SC and FAWEHINMI V NBA (2) (1989) 2 NWLR part 105 page 558.

It is submitted in response that the appellant is a juristic person capable of suing and being sued, and that learned counsel conceded that much, when he said in reference to the office of the appellant that ‘it only accords the office of the corps Marshall recognition as a legal entity’; and that failure to add ‘Federal Road Safety Corps’ to the name of the Appellant is immaterial, as the Appellant was not misled as to who was sued. Learned counsel contends, having admitted that the Appellant is a legal and juristic personality at trial, he cannot now turn around to say he is not, as parties are bound by their pleadings, and that an appeal is not a new trial that the Appellant can use to present new arguments.

That since the Appellant did not deny his juristic personality at trial, it is too late in the day for him to change by probating and reprobating now, learned counsel referred the Court to C.K. & W.M.C LTD V AKINGBADE (2016) 14 NWLR part 1533 page 487.

Learned counsel further submits that a community reading of Sections 1 and 10 of the Federal Road Safety Act reveals that the commission and the corps Marshall are two separate and distinct entities, and the appellant is referred to as a ‘body’ by the law.

RESOLUTION OF ISSUE ONE:
The juristic personality of a party is sine qua non to that party’s capacity to institute and maintain a legal action in Court. See: MADUKOLU v. NKEMDILIM (1962) VOL.ANLR (PT.2) 581 where the legal capacity of the plaintiff is questioned, it goes to the jurisdiction of the Court and the Court must ascertain that the party has the capacity to sue before it can proceed to hear the matter. Whether that arose at trial or not is unimportant, because jurisdiction being what it is, it can be raised anywhere, anytime; see: AQUA LTD V. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (PT.91) 622; ONYEMA V. OPUTA (1987) 3 NWLR (PT.60) 259. Once the juristic personality of an artificial person is raised, the party in question can discharge the burden only by producing the certificate of incorporation, if it is a company. See: ATAGUBA & COMPANY V. GURA NIGERIA LIMITED (2005) 6 NWLR (PT. 927) 429. Since the issue was not resolved before the learned trial Court, the appellant has every right to raise the issue for determination before this Court.

In the case of institutions like the Federal Road Safety Corps, and the like, Juristic personality can only be donated by the enabling law. This can either be the Constitution or a Statute. If the enabling law provides for a particular name by way of juristic personality, a party must sue or be sued in that name. There is no choice to sue or be sued in any other name. In other words, juristic personality is a creation of statute and a party which seeks relief must comply strictly with the enabling statute, the law is stringent in this regard. To this end, Section 1 (1) of the Federal Road Safety Commission (Establishment) Act, 2007, provides:
“There is established for Nigeria, a Federal Road Safety Commission, which shall be a body corporate with perpetual succession and a common seal, and may sue and be sued in its corporate name and whose members shall exercise the functions specified in this Act.”
Subsection 2 provides:
“the commission shall consist of:
a) The chairman and five other members to be appointed by the president on a part-time basis;
b) The corps Marshall who shall be then chief executive of the corps”.
Now, it is clear from these provisions that the corps Marshall is merely the operating mind, responsible for the day to day running of the commission. He on his own is not a body corporate or a juristic person, he cannot sue or be sued in his own name. The commission can, as a juristic person.
It does not matter what the appellant did or failed to do at trial. It needs be stated; at the risk of repetition that the issue of the status, identity and juristic personality of a party is a jurisdictional issue which can be raised at any time, even for the first time on appeal; see: SOCIO-POLITICAL RESEARCH DEVELOPMENT V. MINISTRY OF FEDERAL CAPITAL TERRITORY & ORS (2018) LPELR- 45708(SC), where the Supreme Court held:
“…There is no doubt that this issue of juristic personality of the appellant touches and affects the jurisdiction and competence of the Court to entertain the matter, hence it can be raised at any time and level of the Courts.”
Section 7 (1) of the Act provides:
“there shall be a corps Marshall of the corps who shall be appointed by the president and who shall be a person possessing sound knowledge or ability in the organization and administration of the road traffic and road safety matters.”
Subsection 2 provides:
“the corps Marshall shall be the chief executive of the corps and shall without prejudice to delegate in appropriate circumstances, be exclusively responsible for the execution of the policies and decisions of the commission and for carrying into effect day to day activities of the corps.”
The Corps Marshall is definitely not a juristic person with capacity to sue or be sued; simply put, he does not have the locus standi to institute an action nor can one be instituted against him.
Learned counsel submitted on behalf of the Respondent that, appellant’s counsel conceded that the corps Marshall had juristic personality at trial; since his argument at trial was hinged only on the failure to add ‘Federal Road Safety Corps’ to the name of the appellant; and that the trial Court held as much at page 69 of the record of appeal.
This argument lost traction the moment it was made, not least because the addition of the word ‘Federal Road Safety Commission’, cannot as contended clothe the appellant with juristic personality. The fact will always remain that, the corps Marshall, by whatever name called, is merely the person responsible for the day to day running of the commission. He could be called the Alter ego, the operating mind, the chief executive or anything else, but he will still be a distinct personality from the commission itself, at least for the purpose of juristic personality and whatever he is, he does not have the necessary juristic personality to sue and be sued. That is not to say, an aggrieved person cannot sue the commission, and also join the corps Marshall as a party. That is another thing altogether.
The fact of the matter is that the question of legal personality borders on locus standi or capacity to sue or be sued, see CONTRACT RESOURCES NIG LTD V STANDARD TRUST BANK (2013) LPELR; the law attributes juristic personality, that is, the capacity to maintain and defend actions in Court to natural persons as well as artificial persons or institutions, see: GENEVA V AFRIBANK NIG PLC (2013) LPELR; ATTORNEY GENERAL OF FEDERATION V ALL NIGERIA PEOPLES PARTY AND ORS [2003] 12 SCM 1, 12; [2003] 18 NWLR (PT. 851) 182; (2003) 12 SC (PT. 11) 146 AND, ALHAJI MAILAFIA TRADING and TRANSPORT COMPANY LTD V VERITAS INSURANCE COMPANY LTD [1986] 4 NWLR (PT. 38) 802.

The law is firmly settled that where there is no locus standi, there is no jurisdiction in the Court to entertain the action of the Plaintiff. Also where an action is improperly constituted, whether on the side of the Defendant or the plaintiff, as the case may be, the action is incompetent and no adjudication can validly be undertaken on the suit by a Court. Locus standi is married to jurisdiction; see ALHAJI SAKA OPOBIYI & ANOR VS. LAYIWOLA MUNIRU (2011) 18 NWLR (PT. 1278) 387 AT 403 D-F.
The Supreme Court reiterated this in DR. TOSIN AJAYI VS. PRINCESS (MRS.) OLAJUMOKE ADEBIYI & ORS (2012) 8 S.C.M. 1 AT 26 B-I TO 27 A-C, when held:
“Locus Standi is the legal right of a party to an action to be heard in litigation before a Court of law or Tribunal. The term entails the legal capacity of instituting or commencing an action in a competent Court of law or Tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever. The guiding principles to determine whether a person has locus standi or not are: (a) He must be able to show that his civil rights and obligations have been or are in danger of being infringed. (b) The fact that a person may not succeed in the action is immaterial. (c) Whether the civil rights and obligations having been infringed depends on the particulars of the case. (d) The Court should not give any unduly restrictive interpretation to the expression locus standi. The tests for the determination of the locus standi of a person are: (a) The action must be justifiable. (b) There must be a dispute between the parties. INAKOJU VS. ADELEKE, AKINNUBI VS AKINNUBI, ADESOKAN V. ADEGOROLU, A G. KADUNA STATE VS MALLAM UMARU HASSAN, ELENDU VS EKWOABA. Locus standi and jurisdiction are interwoven in the sense that locus standi goes to affect the jurisdiction of the Court before which an action is brought, thus where there is no locus standi to file an action, the Court cannot properly assume jurisdiction to entertain the action. Locus standi being an issue of jurisdiction can be raised at any stage or level of the proceedings in a suit even on appeal at the Court of Appeal by any of the parties without leave of Court or by the Court itself; suomotu. The issue can be raised after motion and or in a statement of defence. Locus standi to institute proceedings in a Court is not dependent on the success or merits of a case; it is a condition precedent to the determination of a case on the merits. OWODUNNI VS. REGISTERED TRUESTEE OF C.C.C, MADUKOLU VS NKEMDILIMKLIFCO VS HOLZNMANN… The issue of locus standi is a condition precedent to the determination of a case on merit. Where a Plaintiff has no locus standi to bring a suit, the suit becomes incompetent and the Court lacks the jurisdiction to entertain it, the only order the Court can make in the circumstance is that of dismissal.”
Now, having found that the Appellant lacked the locus standi to institute the suit in his name means that the suit was incompetent ab initio, thus depriving the trial Court the requisite jurisdiction to entertain same. In view of that, this Court is compelled to strike out the suit for lack of jurisdictional competence. It is accordingly struck out.

I am tempted to proceed to determine the other issues on the merit, because this Court is a penultimate Court, but I am hamstrung; by the lack of jurisdiction, as such, there is neither need nor necessity to proceed to determine other issues in the circumstances.

PETER OLABISI IGE, J.C.A.: I had the opportunity of reading in advance the draft judgment of my learned brother – MOHAMMED MUSTAPHA, JCA.
I agree with the judgment of my learned brother MUSTAPHA, JCA. The Respondent’s suit is hereby struck out for lack of jurisdiction.

HAMMA AKAWU BARKA, J.C.A.: My learned brother Mohammed Mustapha JCA, availed me with a copy of the judgment just read in draft.
I agree with the reasoning and conclusion reached to the effect that the appeal be dismissed, and I make no order on costs.

Appearances:

R. Umeha, with him, R. Ugbabe. For Appellant(s)

Bashir S. Ahmed. For Respondent(s)