Legalpedia Citation: (2024-06) Legalpedia 48804 (CA)

In the Court of Appeal

HOLDEN AT BENIN

Tue Jun 11, 2024

Suit Number: CA/B/31/2015

CORAM

Misitura Omodere Bolaji-Yusuff,JUSTICE COURT OF APPEAL

Sybil Onyeji Nwaka Gbagi,JUSTICE COURT OF APPEAL

Lateef Adebayo Ganiyu,JUSTICE COURT OF APPEAL

PARTIES

1. GODWIN E. OKHILUA

APPELLANTS

POWER HOLDING COMPANY OF NIGERIA (Benin Distribution Of Company)

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Appellant in this appeal was an employee of the Respondent, joining as Officer IV (Accounts) in 1997, as per the appointment letter with reference No. NEPA/26/0001/1769/97. Between 1997 and 2005, the Appellant advanced to the rank of Officer II, Marketing, at grade level 08 in the Respondent’s company.

Upon assuming his duties, the Appellant was posted to the Akenzua District under the supervision of the Commercial Manager, Mr. L.O. Oshodi. Friction arose between the Appellant and Mr. Oshodi, who allegedly used his superior position to issue queries against the Appellant, ultimately leading to his dismissal.

The Appellant contended that he wrote a letter to the Corporate Headquarters in Abuja regarding his purported dismissal, which was acknowledged by the Respondent. This letter was referred to the Chief Executive Officer of the Benin Electricity Distribution Company for necessary action on the allegations, but no reinvestigation has occurred to date.

Furthermore, on July 11, 2007, through his solicitor, the Appellant issued and served a statutory pre-action notice of one month, indicating his intention to commence legal action against the Respondent. Upon receipt of this notice, the Respondent invited the Appellant for discussions, which took place. As a result, the Appellant decided to halt any further legal action, but the Respondent failed to take steps to resolve the situation.

The Respondent denied the Appellant’s claims. The trial court (National Industrial Court of Nigeria, Akure Judicial Division) found in favor of the Respondent and dismissed the Appellant’s claims. Dissatisfied with this judgment, the Appellant filed the instant appeal.

HELD

Appeal dismissed

 

ISSUES

 Whether the lower Court was right in holding that the Appellant’s action is statute-barred and same was caught by the Public Officers Protection Act?

RATIONES DECIDENDI

PRELIMINARY OBJECTION – CONDUCT OF COURTS WHERE A PRELIMINARY OBJECTION IS RAISED

Suffice it to say that the law is settled that when a preliminary objection is raised against the hearing of an appeal, such preliminary objection must be accorded priority over the hearing of the substantive appeal. See Okorocha V. UBA PLC (2018) LPELR – 45122 (SC), where it was held that:-

“It is settled law, that preliminary objection where raised by a party should firstly be determined before the determination of the substantive appeal if the need to do so arises” per Sanusi, JSC (p. 13, paras E – F). – Per L. A. Ganiyu, JCA

PRELIMINARY OBJECTION – WHERE THE APPELLANT DOES NOT REACT TO THE RESPONDENT’S PRELIMINARY OBJECTION

Again, it is to be placed on record that the Appellant did not react to the Respondent’s preliminary objection before this Court which presupposes that the Appellant has admitted all the issues raised therein. However, in view of the fact that the preliminary objection was premised on points of law simpliciter without accompanying same with any affidavit deposing to facts in support of same, I am of settled view my noble Lords, that this Court can safely entertain the preliminary objection and determine same one way or the other. See Nigerian Navy & Ors. V. Garrick (2005) LPELR – 7555 (CA) where it was held that:-

“The Appellant has not filed any reply brief to the preliminary objection raised by the Respondent both in his notice of preliminary objection and in his brief. Where an Appellant fails to respond to a notice of preliminary objection to his appeal, he is deemed to have admitted all the issues raised and canvassed in the preliminary objection. See Goji v. Ewete (supra). Ordinarily, this would mean that the Appellants have nothing to offer in answer to the preliminary objection in this appeal and I would have validly determined the preliminary objection on this score alone and dispose of this appeal. However, I feel obliged and indeed obligated to carefully consider the issues raised in the preliminary objection because of some observations I have made.” Per Omokri, JCA (p. 7, paras B – F). – Per L. A. Ganiyu, JCA

PRELIMINARY OBJECTION – CONDUCT OF COURT WHERE THE APPELLANT DOES NOT REACT TO THE RESPONDENT’S PRELIMINARY OBJECTION BUT THE PRELIMINARY OBJECTION WAS PREMISED ON POINTS OF LAW

Again, it is to be placed on record that the Appellant did not react to the Respondent’s preliminary objection before this Court which presupposes that the Appellant has admitted all the issues raised therein. However, in view of the fact that the preliminary objection was premised on points of law simpliciter without accompanying same with any affidavit deposing to facts in support of same, I am of settled view my noble Lords, that this Court can safely entertain the preliminary objection and determine same one way or the other. See Nigerian Navy & Ors. V. Garrick (2005) LPELR – 7555 (CA) where it was held that:-

“The Appellant has not filed any reply brief to the preliminary objection raised by the Respondent both in his notice of preliminary objection and in his brief. Where an Appellant fails to respond to a notice of preliminary objection to his appeal, he is deemed to have admitted all the issues raised and canvassed in the preliminary objection. See Goji v. Ewete (supra). Ordinarily, this would mean that the Appellants have nothing to offer in answer to the preliminary objection in this appeal and I would have validly determined the preliminary objection on this score alone and dispose of this appeal. However, I feel obliged and indeed obligated to carefully consider the issues raised in the preliminary objection because of some observations I have made.” Per Omokri, JCA (p. 7, paras B – F). – Per L. A. Ganiyu, JCA

PRELIMINARY OBJECTION – WHERE THE APPELLANT DOES NOT FILE A REPLY TO THE APPELLANTS NOTICE OF PRELIMINARY OBJECTION

As earlier mentioned in this judgment, the Appellant did not file a reply brief to the appellant’s Notice of Preliminary Objection which implies that the Appellant had agreed to the issues raised in the preliminary objection by the Respondent. See Nigerian Navy & Ors. V. Garrick (supra). – Per L. A. Ganiyu, JCA

RESPONDENT – WHETHER A COURT IS AT LIBERTY TO PICK BETWEEN TWO NAMES USED TO DESCRIBE A RESPONDENT

It is a notorious fact and trite law for that matter, that this Court cannot choose and pick between the two names used to describe the Respondent by the Appellant in this appeal because for all intents and purposes, Benin Electricity Distribution Company that is put in bracket after Power Holding Company of Nigeria presupposes that Power Holding Company of Nigeria is otherwise known as Benin Electricity Distribution Company, whereas, going by the materials placed before this Court, no company is so registered in Nigeria as Power Holding Company of Nigeria (Benin Electricity Distribution Company).

That being the case, the Appellant has committed a fundamental error in the choice of the personality that he should sued in the present appeal and the error is not one that can be treated as a misnomer which can be waived because it bothers on the identity of the party the instant appeal should be lodged against. See MAERSK LINE & ANOR. V. ADDIDE INVESTMENT LTD & ANOR (2002) LPELR-1811 (SC) where it was held that:

“A primary step in setting the limit is to bear in mind the distinction between two possible mistakes namely a mistake as to the name of a party intended to be sued and a mistake as to the identity of the party to be sued. The former is a misnomer which can be put right by amendment, whereas the latter is not. In the words of Dawson, E. J in Bridge shipping case (Supra) at P. 738.” A mistake in the name of the party is not, to my mind the same thing a mistake in the belief that X is the landlord. That is not to mistake the name of X, but to mistake the identity of the landlord. “Similarly illustrating the distinction but in a different context, Donaldson, L. J., in Evans Construction co. Ltd. V. Charrington & Co. Ltd. and. Another (1983) 1 All ER 310 said at 317: “In applying RSC ord 20, R 5(3) it is, in my judgment, important to bear in mind that there is a real distinction between suing A in the mistaken belief that A is the party who is responsible for the matters complained of and seeking to sue B, but mistakenly describing or naming him as X and thereby suing A instead of B. The rule is designed to correct the latter and not the former category of mistake. “I find the test postulated by Delvin L. J, in Davies V. Elsby Brothers Ltd. (1960) 3 All ER 672, 676, apt and I gratefully adopt it. The test is this: How would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself “of course it must mean me or not and I shall have to make wrong.”, then there is a case of mere misnomer. If on the other hand, he would say: “I cannot tell from the document itself whether they mean me or not and I shall have to make inquiry” then it seems to me that one is getting beyond the realm of misnomer. Per AYOOLA, JSC (Pp 64 – 65, paras D – F).

Related to that is the fact that Power Holding Company of Nigeria is already a moribund company and has since been taken over by various electricity distribution companies all over the country. As such, no action can be instituted against it. See MAINSTREET BANK REGISTRARS LTD. V. OGUNDIMU (2022) LPELR – 57283 (CA). – Per L. A. Ganiyu, JCA

MISTAKE – WHERE THERE IS A MISTAKE AS TO THE IDENTITY OF THE PARTY TO BE SUED

It is a notorious fact and trite law for that matter, that this Court cannot choose and pick between the two names used to describe the Respondent by the Appellant in this appeal because for all intents and purposes, Benin Electricity Distribution Company that is put in bracket after Power Holding Company of Nigeria presupposes that Power Holding Company of Nigeria is otherwise known as Benin Electricity Distribution Company, whereas, going by the materials placed before this Court, no company is so registered in Nigeria as Power Holding Company of Nigeria (Benin Electricity Distribution Company).

That being the case, the Appellant has committed a fundamental error in the choice of the personality that he should sued in the present appeal and the error is not one that can be treated as a misnomer which can be waived because it bothers on the identity of the party the instant appeal should be lodged against. See MAERSK LINE & ANOR. V. ADDIDE INVESTMENT LTD & ANOR (2002) LPELR-1811 (SC) where it was held that:

“A primary step in setting the limit is to bear in mind the distinction between two possible mistakes namely a mistake as to the name of a party intended to be sued and a mistake as to the identity of the party to be sued. The former is a misnomer which can be put right by amendment, whereas the latter is not. In the words of Dawson, E. J in Bridge shipping case (Supra) at P. 738.” A mistake in the name of the party is not, to my mind the same thing a mistake in the belief that X is the landlord. That is not to mistake the name of X, but to mistake the identity of the landlord. “Similarly illustrating the distinction but in a different context, Donaldson, L. J., in Evans Construction co. Ltd. V. Charrington & Co. Ltd. and. Another (1983) 1 All ER 310 said at 317: “In applying RSC ord 20, R 5(3) it is, in my judgment, important to bear in mind that there is a real distinction between suing A in the mistaken belief that A is the party who is responsible for the matters complained of and seeking to sue B, but mistakenly describing or naming him as X and thereby suing A instead of B. The rule is designed to correct the latter and not the former category of mistake. “I find the test postulated by Delvin L. J, in Davies V. Elsby Brothers Ltd. (1960) 3 All ER 672, 676, apt and I gratefully adopt it. The test is this: How would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself “of course it must mean me or not and I shall have to make wrong.”, then there is a case of mere misnomer. If on the other hand, he would say: “I cannot tell from the document itself whether they mean me or not and I shall have to make inquiry” then it seems to me that one is getting beyond the realm of misnomer. Per AYOOLA, JSC (Pp 64 – 65, paras D – F).

Related to that is the fact that Power Holding Company of Nigeria is already a moribund company and has since been taken over by various electricity distribution companies all over the country. As such, no action can be instituted against it. See MAINSTREET BANK REGISTRARS LTD. V. OGUNDIMU (2022) LPELR – 57283 (CA). – Per L. A. Ganiyu, JCA

CORPORATE PERSONALITY – THE REQUIREMENT TO ESTABLISH THE CORPORATE PERSONALITY OF A COMPANY

Be that as it may, in order to establish the corporate personality of either Power Holding Company of Nigeria or Benin Electricity Distribution Company, the certificate of incorporation of either or both of them must be placed before the Court as it is not permissible by the law for Court to assume juristic status of a company without having his certificate of incorporation placed before it. See BANK OF BARODA V. IYALABANI CO. LTD (2002) LPELR- 743 (SC) where it was held that:

“In A.C.B. Plc. v. Emostrade Ltd. (supra) Kalgo, J.S.C. at page 520 had the following to say: “It is also not enough to assume that because a company uses the name ‘limited’ on the writ of summons as plaintiff, that company must be a limited liability company entitled to sue. The company’s status must be proved especially in this case where it was denied to be a limited liability company at the time of the transaction. This was not proved in this case and cannot be presumed either. The respondent as plaintiff, is therefore not a legal entity or juristic person entitled to sue and be sued in law. See Carlen (Nig.) v. University of Jos (1994) 1 NWLR (Pt. 323) 631; Shitta v. Ligali (1941) 16 NLR 23; Fawehinmi v. NBA (No.2) (1989) 2 NWLR (Pt. 105) 558. The respondent is also not one of the bodies or associations which even though not incorporated, have been expressly or impliedly conferred with a right to sue or be sued by statutes.”

Per EJIWUNMI, JSC (Pp. 19-20, paras. G-D)

Also, in EKWEOZOR & ORS V. REG. TRUSTEES OF THE SAVIORS APOSTOLIC CHURCH OF NIGERIA (2020) LPELR-49568 (SC) where it was held that:

“…Assuming it were to be conceived that the appellants in their pleadings joined issues with the respondent in respect of paragraphs 6A-6C, 8, 9A, 9B, 9D and 9E of the Further Amended Statement of Claim, it is submitted that the law would then require the respondent to produce proof of the juristic personality of the respondent. This burden would be discharged by the tendering of the certificate of incorporation, as rightly opined by Onnoghen, J.S.C. (as he then was) in NNPC v LUTIN INVESTMENT LTD. (2006) 2 NWLR (Pt. 965) 506 at 527 where his Lordship held thus: “…That apart, it is trite law that the only way incorporation of a company can be established in any proceeding is by tendering the certificate of its incorporation… ” Per PETER-ODILI, JSC (P. 37, paras. B-F) – Per L. A. Ganiyu, JCA

JURISTIC PERSONS – LIST OF JURISTIC PERSONS THAT MAY SUE OR BE SUED

Thus, as rightly argued by the Respondent’s counsel in his brief of argument, the Respondent is not a juristic person that can be sued by the Appellant. See Iyke Medical Merchandise V. Pfizer Inc. & Anor. (2001) LPELR- 1579 (SC), where it was held that:

“There is no doubt that as a general rule, only juristic persons have the inherent right and/or power to sue and be sued in their names. Non-legal persons or entities, again as a general proposition of law, may neither sue nor be sued except of course, where such right to sue or be sued is created and/or vested by or under a statute. Juristic persons who may sue or be sued eo nomine have been recognised to include: (i) Natural persons, that is to say, human beings; (ii) Companies incorporated under the Companies Act; (iii) Corporations aggregate and corporations sole with perpetual succession; (iv) Certain unincorporated Association granted the status of legal personae by law such as (a) Registered Trade Unions; (b) Partnerships and (c) Friendly societies or sole proprietorships. See Fawehinmi V. Nigeria Bar Association (No. 2) (1989) 2 NWLR (Pt. 105) 558”. Per Iguh, JSC (PP. 20 – 21, Paras. E – C). – Per L. A. Ganiyu, JCA

NON-JURISTIC PERSON – WHERE A NON-JURISTIC PERSON IS A PARTY TO A SUIT

Therefore, my Lords in view of non- registration of the Respondent as described by the Appellant under the Companies and Allied Matters Act, (CAMA) and the absence of any statute that so established the Respondent as sued by the Appellant in the instant appeal coupled with the fact that Power Holding Company of Nigeria has been taken over by other company(ies), I am of solemn view that the Respondent is a non-juristic person that can sue or be sued as done by the Appellant in this appeal. Accordingly, the Respondent’s Notice of Preliminary Objection succeeds to the extent that the instant appeal was commenced against a non-juristic person and consequently, this Court lacks jurisdiction to entertain the Appeal. See REGISTERED  TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA VS. NAMA (2014) LPELR-22372 (SC) where it was held that:

“It is now well settled that a non-existing person, natural or artificial, cannot institute an action in Court, nor will an action be allowed to be maintained against a Defendant, who as sued, is not a legal person. Juristic or legal 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 or legal personality, a party must sue or be sued in that name. He cannot sue or be sued in any other name. See ANYAEGBUNAM V. OSAKA (2000) 5 NWLR (pt. 657) 386, FAWEHINMI V. NIGERIAN BAR ASSOCIATION (No. 2) (1989) 2 NWLR (pt. 105) 558 at 595, ABUBAKAR V. YAR’ADUA (2008) 19 NWLR (PT. 1120) 1 at 150 – 152 paras G – H. The rationale behind this is that law suits are in essence the determination of legal rights and obligations in any given situation. Therefore, only such natural and juristic persons in whom the rights and obligations can be vested are capable of being proper parties to lawsuits before Courts of law.”

Per OKORO, JSC (Pp. 18-19, paras. – Per L. A. Ganiyu, JCA

LEGAL PERSONALITY – HOW LEGAL PERSONALITY IS DONATED

Therefore, my Lords in view of non- registration of the Respondent as described by the Appellant under the Companies and Allied Matters Act, (CAMA) and the absence of any statute that so established the Respondent as sued by the Appellant in the instant appeal coupled with the fact that Power Holding Company of Nigeria has been taken over by other company(ies), I am of solemn view that the Respondent is a non-juristic person that can sue or be sued as done by the Appellant in this appeal. Accordingly, the Respondent’s Notice of Preliminary Objection succeeds to the extent that the instant appeal was commenced against a non-juristic person and consequently, this Court lacks jurisdiction to entertain the Appeal. See REGISTERED  TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA VS. NAMA (2014) LPELR-22372 (SC) where it was held that:

“It is now well settled that a non-existing person, natural or artificial, cannot institute an action in Court, nor will an action be allowed to be maintained against a Defendant, who as sued, is not a legal person. Juristic or legal 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 or legal personality, a party must sue or be sued in that name. He cannot sue or be sued in any other name. See ANYAEGBUNAM V. OSAKA (2000) 5 NWLR (pt. 657) 386, FAWEHINMI V. NIGERIAN BAR ASSOCIATION (No. 2) (1989) 2 NWLR (pt. 105) 558 at 595, ABUBAKAR V. YAR’ADUA (2008) 19 NWLR (PT. 1120) 1 at 150 – 152 paras G – H. The rationale behind this is that law suits are in essence the determination of legal rights and obligations in any given situation. Therefore, only such natural and juristic persons in whom the rights and obligations can be vested are capable of being proper parties to lawsuits before Courts of law.”

Per OKORO, JSC (Pp. 18-19, paras. – Per L. A. Ganiyu, JCA

DISMISSAL – WHERE AN EMPLOYEE IS FIRED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THEIR CONTRACT OF EMPLOYMENT

Therefore, in view of the provision of Exhibit G reproduced above and Appellant’s disclosure in Exhibit F that he had been queried on four consecutive times, interdicted along the line coupled with the fact that no other Rules or regulation, regulating the Appellant’s condition of service was placed before this Court by the Appellant apart from Exhibit G which presupposes that the Appellant’s appointment by the Respondent can be likened to an appointment under the public service of the Federation and as such, public service Rules, regulations etc. are applicable to Appellant’s employment. That being the case, my noble Lords, I am of candid view that the Appellant was properly dismissed from the service of the Respondent in accordance with the relevant rules and regulations governing discipline of erring Respondent’s employees.

See Isheno v. Julius Berger (Nig) PLC (2008) LPELR – 1544 (SC) where it was held that:-

“Where the employer fires an employee in compliance with the terms and conditions of their contract of employment, there is nothing the Court can do as such termination is valid in the eyes of the law. It is only where the employer, in terminating or dispensing with the services of an employee does so without due regard to the terms and conditions of the contract of employment between the parties that problems arise as such a termination is usually not tolerated by the Courts and are, without hesitation usually declared wrongful and appropriate measure of damages awarded to the plaintiff. Per Onnoghen, JSC (pp 35 – 36, paras E – A).” – Per L. A. Ganiyu, JCA

LIMITATION PERIOD – WHETHER NEGOTIATION, ABSENCE FROM JURISDICTION OR IGNORANCE CAN AFFECT LIMITATION PERIOD

First and foremost, the law is trite that negotiation, absence from jurisdiction or ignorance of law cannot affect limitation period. See Eboigbe v. NNPC (1994) LPELR-992 (SC) where it was held that:

“As for the period during which the parties engaged in negotiation, the law is that when in respect of a cause of action, the period of limitation begins to run, it is not broken and it does not cease to run merely because the parties are engaged in negotiation. The best cause for a person to whom a right has accrued is to institute an action against the other party so as to protect his interest or right in case the negotiation fails. If as in this case, the negotiation does not result in a settlement or in an admission of liability, the law will not allow the time devoted to negotiation to be excluded from the period which should be taken into consideration for the determination of the question whether a claim has been statute barred. Negotiation by the parties does not prevent or stop time from running.” Per Adio, JSC (pp. 13 – 14, paras F – B).

Furthermore, with respect to the time that the Appellant was alleged to be dismissed (i.e. 2005). It is crucial to note that the Respondent before this Court is supposed to be an agency of the Federal Government in respect of which the Federal Government has its equity shares. See Progressive Sea Foods (Nig) Ltd. V. IBEDC & Anor. (2020) LPELR – 49754 (CA). – Per L. A. Ganiyu, JCA

LIMITATION PERIOD – THE LIMITATION PERIOD FOR COMMENCEMENT OF ACTION AGAINST A PUBLIC OFFICER

That being the case, mutatis mutandis, the condition of service applicable to officers in the public service of Nigeria will be applicable to the Respondent’s employees until special conditions of service is drawn for them and no evidence is placed before this Court that such special condition of service has been drawn for the employees of the Respondent.

Therefore, three months limitation period provided for the commencement of an action against public officer(s) by virtue of Section 2(a) of the Public Officers Protection Act is applicable to the Respondent’s employees. Hence, whether the Appellant was dismissed in 2005 or 2006, since the Appellant’s action that gave birth to the present suit was commenced in January 2010, undoubtedly, the three months period to commence the action by the Appellant against the Respondent has elapsed and as such, Suit No.: NICN/ABJ/304/2012 initially commenced by the Appellant in 2010 at the Federal High Court, Abuja is statute barred and once it is so, it becomes lifeless and liable to be dismissed as done by the trial Court. – Per L. A. Ganiyu, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Public Officers Protection Act
3. Court of Appeal Rules 2021
4. Legal Practitioners Act, Cap. L11, 2004
   

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