(2018) LPELR-44741(CA)

Transcription

1 DEVELOPMENT POLICY CENTRE v. OLANIRAN CITATION: In the Court of Appeal In the Ibadan Judicial Division Holden at Ibadan CHINWE EUGENIA IYIZOBA HARUNA SIMON TSAMMANI NONYEREM OKORONKWO ON WEDNESDAY, 20TH JUNE, 2018 Suit No: CA/I/21/2011 DEVELOPMENT POLICY CENTRE MR. SOLOMON O. OLANIRAN Before Their Lordships: Between And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. ACTION - LEGAL PERSONALITY: Position of the law where parties in an action lacks legal personality "I find it surprising that the Respondent did not react to this all important issue in his brief. For an action to be properly constituted so as to vest jurisdiction in the Court to adjudicate on it, there must be a competent plaintiff and a competent defendant. Generally, only natural persons, that is, human beings and juristic or artificial persons such as body corporate are competent to sue or be sued. Where either of the parties is not a legal person, the action is liable to be struck out as being incompetent: see AGBONMAGBE BANK LTD. V. GENERAL MANAGER G. B. OLLIVANT LTD. AND ANOR (1961) 1 ALL NLR 116. The law recognizes that apart from natural and juristic persons, some nonlegal entities can sue and be sued eo nomine. For example, where a party has been given by statute, expressly or impliedly or by the common law, either: (a) a legal persona under the name by which it sues or is sued e.g. corporation sole and aggregate bodies incorporated by foreign law and "quasi-corporations" constituted by Act of Parliament; or (b) a right to sue or be sued by that name e.g. partnerships, trade unions, friendly societies and foreign institutions authorized by their own law to sue and be sued but not incorporated. See FAWEHINMI V. N.B.A. (NO.2) (1989) 2 NWLR (PT. 105); CARLEN (NIG.) LTD. V. UNIJOS (1994) 1 NWLR (PT.323) 631. In Paragraph 2 of the amended Statement of Claim at page 16 of the Record, the Respondent averred: "The Defendant is a body corporate (non-governmental Organization) established under the Company and Allied Matters Act for research on political economic and social policies of governments with its office address at Ojetunji Aboyade House, DPC Road, Oba Akinyele Street, Ibadan." In paragraph 1 of the Statement of Defence at page 22 of the Record, the Appellant admitted paragraphs 2 and 3 of the Statement of Claim. So the fact that the Respondent is a body corporate (non-governmental Organization) established under the Company and Allied Matters Act for research on political economic and social policies of governments is not in dispute. The contention of the Appellant is that the Respondent ought to have been sued through its incorporated Trustees. I agree with the Appellant. Section 596 (1) of the Company and Allied Matters Act provides: (1) From the date of registration, the trustee or trustee shall become a body corporate by the name described in the certificate, and shall have perpetual succession and a common seal, and power to sue and be sued in its corporate name as such trustee or trustees and subject to Section 602 of this PART of this Act to hold and acquire, and transfer, assign or otherwise dispose of any property or interests therein belonging to, or held for the benefit of such association, in such manner and subject to such restrictions and provisions as the trustees might without incorporation, hold or acquire, transfer, assign or otherwise dispose of the same for the purposes of such community, body or association of persons. It is indeed trite that only legal persons can sue and be sued. This suit should have been in the name of "Registered Trustees of Development Policy Centre" for it is the trustees that have the power to sue and be sued. It is indeed a jurisdictional matter as the Court lacks jurisdiction to entertain a suit where the Plaintiff or the Defendant is a non legal personality. "Development Policy Centre" is not a legal entity and so can neither sue or be sued. The Appellant ought to have realized this at the inception of the suit and raised objection in limine. It is however a matter of jurisdiction and it does not matter at what point the issue is raised, it renders the entire suit and proceedings null and void, no matter how well conducted. A Court cannot entertain a suit or give judgment in favour of non juristic entity. Once the question of juristic personality of a party arises in a suit, it is only the Certificate of Incorporation that can settle the issue. See REGISTERED TRUSTEES OF APOSTOLIC CHURCH V. ATTORNEY-GENERAL MID-WESTERN NIGERIA (1972) NSCC (VOL. 7) 247; A. C. B. V. EMOSTRADE LTD (2002) 8 NWLR (PT. 770) 501. In the case of DAIRO & ORS V. THE REGISTERED TRUSTEES OF THE ANGLICAN DIOCESE OF LAGOS; (2017) LPELR (SC); NWEZE,J.S.C observed: "I take the further view that the trial Court equally erred in its conclusion that the "the description of the plaintiffs as Registered Trustees is cosmetic and is not fatal to the locus standi of the plaintiff..." (page 584 of the record). In my humble view, the Court glossed over the fact that the question of legal personality borders on locus standi or capacity to sue or be sued. Contract Resources Nig Ltd v. Standard Trust Bank (2013) LPELR - SC 153/2003. Here, I take liberty to state that our law attributes juristic personality, that is, the capacity to maintain and defend actions in Court to natural persons and artificial persons or institutions. Geneva v. AfriBank Nig. Plc (2013) LPELR-SC 72/2001; 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, who are therefore known to law as legal persons. Alhaji Afia Trading and Transport Company Ltd v. Veritas Insurance Company Ltd (1986) 4 NWLR (pt. 38) 802. In consequence, only natural persons or a body of persons whom statutes have either expressly or by implication clothed with the garment of legal personality could prosecute or defend law suits by that name. Knight and Searle v. Dove (1964) 2 All ER 307; Admin Estate of Gen. Sanni Abacha v. Eke-Spiff and Ors (2009) 3 SCM 1; (2009) NWLR (pt. 1139) 92." MAERSK LINE & ANOR V. ADDIDE INVESTMENTS LTD & ANOR (2002) LPELR-1811(SC) OGUNDARE,J.S.C observed: "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). This can easily be found out; it has to be shown on a signboard at its place of business pursuant to Section 65(1); and it can be ascertained under S.23(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 the facts was prepared; the need for it would have been realised if the authorities had been looked up." Unfortunately for the Respondent, the Appellant being a non juristic person cannot be sued. On this issue alone the appeal succeeds and is hereby allowed. The judgment of the lower Court is declared a nullity and is hereby set aside."per IYIZOBA, J.C.A. (Pp. 6-11, Paras. A-D) - read in context 2. ACTION - LEGAL PERSONALITY: Position of the law where parties in an action lacks legal personality "The Appellant being a non-governmental Organization registered under the Company and Allied Matters Act, could only be sued through its Registered Trustees. This Suit having not been so initiated is incompetent as in such a situation the Appellant is not properly clothed with the garment of juristic personality to be sued or to sue. The trial Court therefore had no jurisdiction to hear and determine the Suit against the Appellant by the name of Development Policy Centre. The proper order to make in the circumstances is to strike out the suit."per TSAMMANI, J.C.A. (Pp , Paras. F-B) - read in context

3 3. ACTION - LEGAL PERSONALITY: Position of the law where parties in an action lacks legal personality "This appeal touches on the legal or juristic personality of a party in this case the appellant, not being invested with legal persona and capacity, every legal suit commenced against would amount to a nullity from which nothing comes."per OKORONKWO, J.C.A. (P. 12, Paras. D-E) - read in context

4 CHINWE EUGENIA IYIZOBA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Oyo State Ibadan Judicial Division in SUIT NO: I/1059/2006 delivered on 26/6/2009 CORAM Oladeinde J. FACTS The Appellant a non-profit making organization employed the Respondent as a Personal Assistant to the Managing Director of the Appellant by letter dated 27/12/94. After some months of working for the Appellant with an increase in salary, some office equipment of the Appellant was stolen. The Respondent and a few other staff of the organization were suspected of the theft and charged to the Magistrate Court Iyaganku Oyo State. The Appellant placed the Respondent on indefinite leave without pay. The Respondent was later discharged by the Magistrate Court for want of diligent prosecution. The Respondent wrote several letters to the Appellant for reinstatement, all to no avail. He then instituted this action claiming in his amended Statement of Claim as follows: (a) A DECLARATION that the Plaintiff having been suspended from his duty post by the Defendant via a 1

5 letter dated 11th of December, 1996 the Defendant is bound to reinstate him to his duty post at the conclusion of the criminal allegation leveled against him in charge no. MI/807/C/97. (b) A DECLARATION that the Plaintiff is still in the service of the Defendant and is entitled to accrued salaries from October 1996 till the date of judgment of this case and should accordingly be paid. (c) ALTERNATIVELY, The Plaintiff claims against the Defendant a sum of N5,368, (Five Million, Three Hundred and Sixty- Eight Thousand, Three Hundred and Fifty-Four Naira, Twenty- Seven Kobo) being his arrears of salaries, other emoluments and benefits from October 1996 itemized as follows: N : K 1996 Oct. Dec. at the rate of N8, x 3 = 26, Jan. Dec. at the rate of N12, x 12 = 152, Jan. Dec. at the rate of N13, x 12 = 167, Jan. Dec. at the rate of N17, x 12 = 209, Jan. Dec. at the rate of N24, x 12 = 298, Jan. Dec. at the rate of N49, x 12 = 596, Jan. Dec. at the rate of N54, x 12 = 655,828.35

6 2

7 2003 Jan. Dec. at the rate of N60, x 12 = 721, Jan. Dec. at the rate of N66, x 12 = 793, Jan. Dec. at the rate of N72, x 12 = 872, year salary as gratuity/severance allowance After 10 years service = 872, TOTAL = 5,368, (d) An order for the payment of 21% interest on the judgment sum awarded. The lower Court in its judgment granted only relief (b) above. Dissatisfied with the judgment, the Appellant on 02/07/09 filed a Notice of Appeal which was subsequently amended. From the three grounds of appeal in the Amended Notice of Appeal, the Appellant distilled the following six issues for determination: (i) Whether or not the lower Court has jurisdiction to entertain the suit same having not been properly instituted against the appellant who is a non-juristic person. (ii) Whether or not the lower Court has jurisdiction to entertain the suit, when the matter was already statute barred when it was instituted (iii) Whether or not by the weight of evidence before 3

8 the lower Court, the lower Court was right to hold that the respondent is still in the service of the defendant during the period of suspension and is entitled to accrued salaries from October 1996 till the date of the judgment and should be paid accordingly." (iv) Whether or not it is the responsibility of the appellant to prosecute the respondent. (v) Whether or not the respondent can complain that he has been wrongly suspended without pay. (vi) Whether or not the Court can force the respondent on the appellant against the backdrop of unresolved allegation of theft. It is pertinent to note that after judgment was delivered by the lower Court on 26/6/2009 and Notice of Appeal filed on 02/07/09, the Appellant on 26/6/2010 wrote a letter signed by its chairperson Professor Bimpe Aboyade terminating the Respondent s appointment. In his brief of argument, filed on 20/06/11 the Respondent formulated a sole issue for determination as follows: Whether by the state of pleadings, the totality of evidence and Exhibits tendered, the Appellant is not bound to pay the Respondent as an employee of the Appellant at the end of the criminal trial? 4

9 Appellant s issue 1 which has to do with the jurisdiction of the lower Court to entertain the suit will be considered first as jurisdiction is a threshold issue. APPELLANT S ARGUMENTS: ISSUE NO. 1 WHETHER OR NOT THE LOWER COURT HAS JURISDICTION TO ENTERTAIN THE SUIT SAME HAVING NOT BEEN PROPERLY INSTITUTED AGAINST THE APPELLANT WHO IS A NON-JURISTIC PERSON Learned counsel for the Appellant Dorcas Ajose Esq. on this issue submitted that it is common knowledge that only natural or juristic persons can sue and be sued. Counsel submitted that the Appellant in this case is a non-juristic person who ought to have been sued through its incorporated Trustees. Counsel submitted that Development Policy Centre is not a juristic person and cannot sue or be sued. Counsel referred to the case of AKINDELE VS ABIODUN (2010) ALL FWLR (PT 518) 922 G AND 918 F. He submitted that the proper Order the Honourable Judge of the lower Court ought to have made was an order dismissing the suit as it lacked jurisdiction to adjudicate on the matter, the defendant not being a juristic person. Counsel urged the Court to allow the appeal 5

10 and to dismiss the suit at the lower Court. RESOLUTION: I find it surprising that the Respondent did not react to this all important issue in his brief. For an action to be properly constituted so as to vest jurisdiction in the Court to adjudicate on it, there must be a competent plaintiff and a competent defendant. Generally, only natural persons, that is, human beings and juristic or artificial persons such as body corporate are competent to sue or be sued. Where either of the parties is not a legal person, the action is liable to be struck out as being incompetent: see AGBONMAGBE BANK LTD. V. GENERAL MANAGER G. B. OLLIVANT LTD. AND ANOR (1961) 1 ALL NLR 116. The law recognizes that apart from natural and juristic persons, some non-legal entities can sue and be sued eo nomine. For example, where a party has been given by statute, expressly or impliedly or by the common law, either: (a) a legal persona under the name by which it sues or is sued e.g. corporation sole and aggregate bodies incorporated by foreign law and "quasi-corporations" constituted by Act of Parliament; or (b) a right to sue or be sued by that name e.g. partnerships, 6

11 trade unions, friendly societies and foreign institutions authorized by their own law to sue and be sued but not incorporated. See FAWEHINMI V. N.B.A. (NO.2) (1989) 2 NWLR (PT. 105); CARLEN (NIG.) LTD. V. UNIJOS (1994) 1 NWLR (PT.323) 631. In Paragraph 2 of the amended Statement of Claim at page 16 of the Record, the Respondent averred: The Defendant is a body corporate (non-governmental Organization) established under the Company and Allied Matters Act for research on political economic and social policies of governments with its office address at Ojetunji Aboyade House, DPC Road, Oba Akinyele Street, Ibadan. In paragraph 1 of the Statement of Defence at page 22 of the Record, the Appellant admitted paragraphs 2 and 3 of the Statement of Claim. So the fact that the Respondent is a body corporate (non-governmental Organization) established under the Company and Allied Matters Act for research on political economic and social policies of governments is not in dispute. The contention of the Appellant is that the Respondent ought to have been sued through its incorporated Trustees. I agree with the Appellant. 7

12 Section 596 (1) of the Company and Allied Matters Act provides: (1) From the date of registration, the trustee or trustee shall become a body corporate by the name described in the certificate, and shall have perpetual succession and a common seal, and power to sue and be sued in its corporate name as such trustee or trustees and subject to Section 602 of this PART of this Act to hold and acquire, and transfer, assign or otherwise dispose of any property or interests therein belonging to, or held for the benefit of such association, in such manner and subject to such restrictions and provisions as the trustees might without incorporation, hold or acquire, transfer, assign or otherwise dispose of the same for the purposes of such community, body or association of persons. It is indeed trite that only legal persons can sue and be sued. This suit should have been in the name of Registered Trustees of Development Policy Centre for it is the trustees that have the power to sue and be sued. It is indeed a jurisdictional matter as the Court lacks jurisdiction to entertain a suit where the Plaintiff or the Defendant is a non legal personality. 8

13 Development Policy Centre is not a legal entity and so can neither sue or be sued. The Appellant ought to have realized this at the inception of the suit and raised objection in limine. It is however a matter of jurisdiction and it does not matter at what point the issue is raised, it renders the entire suit and proceedings null and void, no matter how well conducted. A Court cannot entertain a suit or give judgment in favour of non juristic entity. Once the question of juristic personality of a party arises in a suit, it is only the Certificate of Incorporation that can settle the issue. See REGISTERED TRUSTEES OF APOSTOLIC CHURCH V. ATTORNEY-GENERAL MID-WESTERN NIGERIA (1972) NSCC (VOL. 7) 247; A. C. B. V. EMOSTRADE LTD (2002) 8 NWLR (PT. 770) 501. In the case of DAIRO & ORS V. THE REGISTERED TRUSTEES OF THE ANGLICAN DIOCESE OF LAGOS; (2017) LPELR (SC); NWEZE,J.S.C observed: "I take the further view that the trial Court equally erred in its conclusion that the "the description of the plaintiffs as Registered Trustees is cosmetic and is not fatal to the locus standi of the plaintiff..." (page 584 of the record). In my humble view, the Court 9

14 glossed over the fact that the question of legal personality borders on locus standi or capacity to sue or be sued. Contract Resources Nig Ltd v. Standard Trust Bank (2013) LPELR - SC 113/2003. Here, I take liberty to state that our law attributes juristic personality, that is, the capacity to maintain and defend actions in Court to natural persons and artificial persons or institutions. Geneva v. AfriBank Nig. Plc (2013) LPELR-SC 72/2001; 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, who are therefore known to law as legal persons. Alhaji Afia Trading and Transport Company Ltd v. Veritas Insurance Company Ltd (1986) 4 NWLR (pt. 38) 802. In consequence, only natural persons or a body of persons whom statutes have either expressly or by implication clothed with the garment of legal personality could prosecute or defend law suits by that name. Knight and Searle v. Dove (1964) 2 All ER 307; Admin Estate of Gen. Sanni Abacha v. Eke-Spiff and Ors (2009) 3 SCM 1; (2009) NWLR (pt. 1139) 92." MAERSK LINE & ANOR V. ADDIDE INVESTMENTS LTD & ANOR (2002) LPELR-1811(SC) OGUNDARE, J.S.C observed: 10

15 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). This can easily be found out; it has to be shown on a signboard at its place of business pursuant to Section 65(1); and it can be ascertained under S.23(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 the facts was prepared; the need for it would have been realised if the authorities had been looked up." Unfortunately for the Respondent, the Appellant being a non juristic person cannot be sued. On this issue alone the appeal succeeds and is hereby allowed. The judgment of the lower Court is declared a nullity and is hereby set aside. I make no order as to costs. HARUNA SIMON TSAMMANI, J.C.A.: The Appellant being a non-governmental Organization registered under the Company and Allied Matters Act, could only be sued through its Registered Trustees. 11

16 This Suit having not been so initiated is incompetent as in such a situation the Appellant is not properly clothed with the garment of juristic personality to be sued or to sue. The trial Court therefore had no jurisdiction to hear and determine the Suit against the Appellant by the name of Development Policy Centre. The proper order to make in the circumstances is to strike out the suit. The Suit having been struck out, there is nothing else on which to hang the judgment. The judgment of the trial Court delivered on the 26/6/2009 is therefore set aside. Accordingly the appeal succeeds and is hereby allowed. I abide by the order on costs. NONYEREM OKORONKWO, J.C.A.: This appeal touches on the legal or juristic personality of a party in this case the appellant, not being invested with legal persona and capacity, every legal suit commenced against would amount to a nullity from which nothing comes. The lead judgment of my lord Chinwe Eugenia Iyizoba has exhaustively dealt with the situation in the lead judgment. I agree with the judgment. 12

17 Appearances: DORCAS O. AJOSE ESQ. For Appellant(s) NOT REPRESENTED For Respondent(s)