CORAM
CHINWE EUGENIA IYIZOBA -JUSTICE COURT OF APPEAL JUSTICE
PARTIES
MR. JOHN BIGWAN APPELLANTS
URBAN HOUSING CO-OPERATIVE LIMITED RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Claimant/Respondent instituted this action against the Defendant/Appellant at the High Court of Lagos State claiming for a declaration that the Claimant (and its lawful assigns where applicable) is the legal/beneficial owner of the parcel of land situate at Badore and covered by a Certificate of Occupancy registered as Number 97 at page 97 in Volume 2003R, Lagos State Lands Registry,a declaration that the parcel of land covered by survey plan No. TSL/1382/LA/97 allegedly purchased by the Defendant does not fall within the parcel of land covered by Certificate of Occupancy registered as Number 97 at page 97 in Volume 2003R, Lagos State Lands Registry amongst others. The Defendant/Appellant’s claim was that one Sikiru Basiru Jikoji family sold to him a parcel of land which falls within the parcel of land granted to the Claimant/Respondent by the Lagos State Government by a registered Certificate of Occupancy. The Defendant/Appellant thereafter claimed to have written to the Claimant/Respondent demanding for compensation. Hence, the Claimant/Respondent brought this action to prove that the Defendant/Appellant’s said parcel of land is not within the land granted to it by the Lagos State Government. At the trial court, the Defendant/Appellant filed a notice of preliminary objection stating that the action was incompetent as the name “URBAN HOUSING CO-OPERATIVE” by which the action was commenced is unknown to law. The trial court dismissed the objection. Dissatisfied by the trial court’s decision, the Defendant/Appellant has appealed to the Court of Appeal.
HELD
Appeal Dismissed
ISSUES
Whether the lower court rightly dismissed the Appellant’s Preliminary Objection dated 22nd October, 2012 challenging the jurisdiction of the court to hear the substantive suit?
RATIONES DECIDENDI
MISNOMER- DEFINITION OF MISNOMER
“In the case of A B Manu & Co. v. Costain (WA) Ltd (1994) 8 NWLR (Pt.360) 19 .. misnomer was defined thus:
“Misnomer can be said to be mistake in name – giving incorrect name to person(s) in the Writ of Summons. It occurs when a mistake is made as to the name of a person who sued or was sued or when an action is brought by or against the wrong name of a person…”PER C.E.IYIZOBA, J.C.A
COURT- DUTY OF COURTS TO DO SUBSTANTIAL JUSTICE RATHER THAN PLACE RELIANCE ON UNDUE TECHNICALITIES
“In the case of Ogbaegbe v. FBN Plc (2005) 18 NWLR (pt.957) 357 at 377 C-D, it was held that the days of courts sticking to technicalities as opposed to substantial justice are over. The courts have shifted from reliance on undue technicalities to doing substantial justice.” PER C.E. IYIZOBA, J.C.A
WAIVER OF A MISNOMER – A PARTY NOT IN DOUBT OF A MISNOMER OR NOT MISLED BY SAME IS DEEMED TO HAVE WAIVED THE MISNOMER
“In Ajadi v. Ajibola (2004) 16 NWLR (pt.898) 91 at 192 it was held that where a party is not in doubt or misled by a misnomer in the proceedings, the party would be deemed to have waived the misnomer.” PER C.E. IYIZOBA, J.C.A
MISNOMER- POWER OF THE COURT TO CORRECT A MISNOMER
“Courts generally have the power to correct incidents of misnomer and specifically, the High Court of Lagos State gave the power correct same under Order 13 Rules 2 and 17(1) of the High Court of Lagos State (Civil Procedure) 2012 referred to by both parties in their submissions.”PER C.E. IYIZOBA, J.C.A
INCOMPETENT APPEAL- AN ISSUE FORMULATED OUTSIDE THE SCOPE OF THE GROUNDS OF APPEAL IS INCOMPETENT
“Any issue formulated outside the scope of the grounds of appeal in an appeal is incompetent.” PER C.E. IYIZOBA, J.C.A
CASES CITED
STATUTES REFERRED TO
Co-operative Societies Law of Lagos State
Court of Appeal Rules 2011.
Evidence Act, 2011
High Court of Lagos State (Civil Procedure) Rules 2012