CORAM

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JOSEPH SHAGBAOR IKYEGH JUSTICE COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI JUSTICE COURT OF APPEAL

YARGATA BYENCHAT NIMPAR JUSTICE COURT OF APPEAL

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PARTIES

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UNITED TIPPERS DRIVERS ASSOCIATION (AKESAN BRANCH)

APPELLANTS 

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1. THE REGISTERED TRUSTEE OF THE REDEEMED CHRISTIAN CHURCH OF GOD

2.PA SALUDEEN BAYO AKANBI OLOYEDE

RESPONDENTS 

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AREA(S) OF LAW

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ACTION, APPEAL, JUDGMENT AND ORDER, LEGAL PERSONALITY, PRACTICE AND PROCEDURE.

 

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SUMMARY OF FACTS

The Claimants/ Respondents had at the High Court of Lagos State, sued the Defendants/Appellants for the recovery of possession of a parcel of land located at or along Akesan Road in Ikeja Local Government Area of Lagos State. The Claimants/Respondents were granted the reliefs to recover possession of the parcel of land from the Defendants/Appellant and an order of perpetual injunction against the Defendant/Appellant restraining it and its servants, agents and/or privies from committing any further act(s) of trespass on the disputed parcel of land. Dissatisfied with the decision of the Court, the Defendant/Appellant appealed to the Court of Appeal. The Respondents by way of preliminary objection contended that the Appellant not been a juristic or legal personality lacked the standing to file the appeal, hence it should be struck out. In its reply brief, the Appellant submitted that the preliminary objection is incompetent on the ground that it deals the Appellant’s issue for determination, which is a substantive matter hence it should be struck out.

 

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HELD

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Preliminary Objection Struck Out; Appeal Allowed

 

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ISSUES

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Whether an action could have been validly maintained against the Appellant at the lower court being a non-juristic person

 

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RATIONES DECIDENDI

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PRELIMINARY OBJECTION

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“Preliminary objection comes before and usually builds up to the threshold of the main action.  It does not stray into or dwell on the issues forming part of agitation in the substantive action.  It is an objection that if upheld would render proceedings in the substantive action unnecessary.  The preliminary objection raised in the present appeal bears on the substantive appeal.  It pertains to the first issue or issue (a) (supra) of the main appeal.  It is thus an invitation to discuss the substantive issue in the appeal at the preliminary stage of the proceedings.  Accordingly, it does not have the trappings of a preliminary objection.  I find it inappropriate and/or incompetent vide Akinbi v. Military Governor, Ondo State and Anor. (supra) cited by Mr. Ajomo for the appellant where the Court (Benin Division) held in the lead judgment of Ogundare, J.C.A., that a preliminary objection ceases to be one if it involves issue(s) submitted for discussion in the substantive matter.  See also Nwagu v. Chima (2012) 8 NWLR (pt. 1303) 596 per the lead judgment of Oseji, J.C.A., following Afribank Plc v. Akwara (2006) 5 NWLR (pt.974) 619.” PER J.S. IKYEGH J.C.A

 

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LEGAL PERSONALITY- PERSONS AGAINST WHOM AN ACTION CAN BE INSTITUTED

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“I find it rewarding to copy below what Oputa, J.S.C., said in his judgment in Fawehinmi v. N.B.A. (No.2) (supra) in page 644 on rationale for suable legal personality thus –

“There is no doubt that a human being is a person in the eyes of the law – to use the latin alternative a “persona.” Law in this regard takes account of human beings so far as their jural relations are involved. This in Roman law meant the power to sue as well the power to own property. English law took over the popular reference of the word “person” to human beings as its point of reference, as well as its starting point. It gradually extended the term “person” to include artificial entities like corporations. Now what and what are common to a human being and a corporation? Each is a unit of jural relations. The concern of the law is to organise masses of jural relationships whether centred on an individual or a group. In jurisprudence therefore a “person” is the object of rights and duties, that means that a “person” is capable of having rights and of being liable to duties in contradistinction to a “thing” which is always the subject of rights and duties. Now the legal concept of a human being is simply a multitude of claims, duties, liberties etc. treated as a unit. If therefore the law invests an artificial entity like corporation with a “multitude of claims, duties, liberties, etc.” it likewise invests it with the status of a legal person or a persona. There is therefore no distinction in law between a “natural” and “legal person.” Both are legal personae and each is legal persona. The position then is that legal personality is an artificial creation of the law. It should be obvious that not all human-beings possess full legal personality. Thus infants, lunatics and idiots possess but a “restricted legal personality” hence some sue by their next friends, others by their guardians.”

The law is that an action can be brought only by or against a human being (natural person) or an artificial person who by statute, incorporation or the Common Law is expressly or impliedly empowered as a legal person under the name by which it may sue or be sued.  Such a right to sue or be sued by that name, be it Partnerships, Trade Unions, Friendly Societies and Foreign Institutions may be vested in such bodies who may be authorised by their respective law to sue and be sued.  See Carlen (Nig) Ltd. v. University of Jos and Anor (1994) 1 NWLR (pt. 323) 631, Thomas v. Local Government Service Board (1965) 1 ALL NLR 168, Wills and Anor. v. Association of Universities of The British Commonwealth (1964) 2 ALL E.R. 39 at 42, Kpebimoh v. The Board of Governor, Western Ijaw Teachers Training College (1966) NMLR 130, Taff Vale Ry Co, v, Amalgamated Society of Railway Servants (1901) A.C. 426 at 436 and the cases cited (supra) by the appellant and the respondents.

As stated by the Supreme Court in Ataguba and Co. v. Gura (Nig.) Ltd. (2005) 8 NWLR (pt.927) 429 at 445 per the lead judgment of Edozie, J.S.C., (as he was):-

“… where either of the parties is not a legal person, the action is liable to be struck out as being incompetent: see Shitta v. Ligali (1941) 16 NLR 23; Agbonmagbe Bank Ltd. v. General Manager G. B. Ollivant and Anor. (1961) 1 All NLR 116”.

See also C.O.P. Ondo State v. Obolo (1989) 5 NWLR (pt. 120) 130 at 141, Erokoro v. Government of Cross River State (1991) 4 NWLR (pt.185) 322, Abu v. Ogli (1995) 8 NWLR (pt.413) 353.” PER. J.S. IKYEGH J.C.A

 

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PARTIES TO AN ACTION – PROPER ORDER TO MAKE WHERE THE PARTIES IN COURT ARE INCOMPETENT OR NON-JURISTIC PERSONS

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“It has been aptly stated in the lead judgment that where the parties in court are incompetent or non juristic persons, the proper order to make is that of striking out the suit and not dismissal. See also the case of Adesokan V. Adetunji (1994) 5 NWLR (PT.346) 540. However in a situation where there is more than one party sued, that fact alone cannot render the entire suit incompetent; the suit is incompetent only with respect to the non juristic person. PER Y.B. NIMPAR, J.C.A

 

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CASES CITED

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None

 

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STATUTES REFERRED TO

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Companies and Allied Matters Decree (Act) 1990 (CAMA)

Court of Appeal Act, 2004

High Court of Lagos State (Civil Procedure) Rules 2004

High Court of Lagos State (Civil Procedure) Rules 2012

 

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