SOCIO-POLITICAL RESEARCH DEVELOPMENT v. MINISTRY OF FCT & ORS
CITATION: (2018) LPELR-45708(SC)
In the Supreme Court of Nigeria
ON FRIDAY, 28TH SEPTEMBER, 2018 Suit No: SC.203/2008
Before Their Lordships:
IBRAHIM TANKO MUHAMMAD Justice of the Supreme Court OLUKAYODE ARIWOOLA Justice of the Supreme Court KUMAI BAYANG AKA'AHS Justice of the Supreme Court AMINA ADAMU AUGIE Justice of the Supreme Court SIDI DAUDA BAGE Justice of the Supreme Court
Between
SOCIO-POLITICAL RESEARCH DEVELOPMENT - Appellant(s) (2018) LPELR-45708(SC)And 1. MINISTRY OF FEDERAL CAPITAL TERRITORY 2. HAJIYA MAIMUNA BELLO AJANAH - Respondent(s) 3. HAJIA HADIZA ABDULLAHI
RATIO DECIDENDI 1. ACTION - LEGAL PERSONALITY: Position of the law as regards juristic or legal personality "Now, appellant's issue four which tallies with respondents' issue No.1, is a challenge on the legal personality of the appellant, that it is not a juristic personality. But, who is the appellant in this appeal? Paragraph 1 of the appellant/plaintiff's statement of claim at the Court of trial, stated that the plaintiff is a socio-political research and development company registered in Nigeria. The respondents' statement of defence, in denial, stated that the defendants were not aware of the plaintiff's status and that the plaintiff was not a juristic person in law. The trial Court treated the matter in a Ruling delivered on 9/12/99 holding that the plaintiff/appellant was an outfit registered in Nigeria: "All I now know about the plaintiff is that it is a Socio-Political Research and Development outfit registered in Nigeria as per paragraph 1 of the Statement of Claim. It is not known under what part of the Companies and Allied Matters Act that it was registered. For instance, if the plaintiff was registered in the business name register, it could besides its legal capacity sue and be sued as per Ndoma-Egba, JCA in Yusuf v. Adewuyi Brothers & Co. (supra). If it is a partnership or a friendly society, it has a right to sue or be sued under its name. See: Carlen Nig. Ltd's case (supra) Order 11 Rule 9 of the High Court of the FCT Abuja (Civil Procedure Rules) 1991 also allows partners sues or be sued in the name of their firm." However, the Court below, in its judgment delivered on 13th February, 2008, per Aboki, JCA, made the following findings: "I have examined the printed records of this appeal, there is however no evidence that the plaintiff/respondent have(sic) actually been registered under the personality to sue and be sued. It has not been shown from its name or from the averment in paragraph 1 of the Statement of Claim whether it is a private limited liability company or a public liability company. It is clear from its name that it has not complied with the provisions of Section 29 of the Companies and Allied Matters Act which requires all companies to end their names with the word "Limited" - Ltd or "Public Liability Company" - Plc etc. There is nothing before the Court to show that the plaintiff/respondent has been registered as a business name under part B of Companies and Allied Act which requires disclosure of the business name registration number as required by Section 582 sub Section 1(c) of the Act. It was also not disclosed whether the plaintiff/respondent has been registered as a partnership." Thus, the plaintiff/respondent/appellant was found to be an unregistered outfit under the laws operating in Nigeria. The consequence is that a non-juristic person can neither sue nor be sued, for want of capacity. I adopt the analysis given by the Court below when it says: "It is trite that a non-juristic person cannot sue or be sued. It follows therefore that no action can be brought by or against any party other than a natural person or persons except where such a party has been conferred by a statute expressly or impliedly with a legal capacity. A statute can confer a legal personality on a party thus:- a) under the name by which it may sue or be sued. Or, b) a right to sue or be sued by that name such as in the cases of business name, partnership, trade union etc. See. Lion of Africa Insurance Company Ltd. v Esan (1999) 8 NWLR (Pt.614) 197 at 201; Carlen Nig Ltd v. University of Jos (1994) 1 NWLR Pt 323) 631. Juridical personality is acquired when the law accepts and recognises the existence of unincorporated associations. On the other hand the capacity to sue and be sued is not thereby given by a mere recognition or acceptance of its existence, only the law confers that attribute or capacity and in most statutes the capacity to sue and be sued of an authority or body they create is expressed. See: Lion of Africa Insurance Pls v. Esan (supra) at page 201; Peat Marwick Ani Ogunde & Co. v. Okike (1995) 1 NWLR (Pt.369) 71. I have examined the printed records of this appeal, there is however no evidence that the plaintiff/respondent have(sic) actually been registered under the Companies and Allied Matters Act or any statute and have(sic) acquired legal personality to sue or be sued. It has not been shown from its name or from the averment in paragraph 1 of the Statement of Claim whether it is a private limited liability company or a public liability company. It is clear from its name that it has not complied with the provisions of Section 29 of the Companies and Allied Matters Act which requires all companies to end their names with the word "Limited" - Ltd or "public Liability Company" - Plc etc. There is nothing before the Court to show that the plaintiff/respondent has been registered as a business name under Part B of the Companies and Allied Matters Act which requires disclosure of the business name registration number as required by Section 582(1)(c) of the Act. It was also not disclosed whether the plaintiff/respondent has been registered as a partnership." The Court below, in my view, has stated the correct position of the law in relation to Companies and Allied matters. In this regard, issue 4 is decided against the appellant."Per MUHAMMAD, J.S.C. (Pp. 31-36, Paras. F-C) - read in context
(2018) LPELR-45708(SC) 2. ACTION - LEGAL PERSONALITY: Position of the law as regards juristic or legal personality "First and foremost, it is clear from the records that the appellant was the plaintiff, at the trial Court where this case originated from. A plaintiff is said to be the party who brings a civil suit in a Court of law. And a party who commences an action in Court must be a person known to law, that is, a natural or an artificial person, given legal personality by statute. See; Alhaji Afia Trading and Transport Company Ltd v. Jesitas Insurance Company Ltd. (1986) 4 (Pt.38) 802. It means that no action can be brought or commenced by or against any party other than a natural person or body of persons, unless such a party has been given by statute expressly or impliedly either (a) a legal personality under the name by which it sues or is sued or (b) a right to sue or be sued by the name, See; Knight and Searle vs. Dove (1964) 2 All ER 307; Administrator Estate of General Sanni Abacha v. Eke-Spiff & Ors (2009) 3 SCM 1; (2009) NWLR (Pt.1133) 92. There is no doubt that from the onset, parties had joined issue on the juristic personality of the appellant. The appellant in paragraph 2 of the Statement of Claim had pleaded thus: "The plaintiff is a socio-political research and development Company registered in Nigeria. It engaged in Organizing seminars, workshops and Staff trainings for its clients." The respondents as defendants controverted the above averment of the appellant in their paragraph 2 of the statement of defence as follows: "The defendants are not aware of the plaintiff's status and shall at the trial lead evidence to show that the defendant (sic) is not a juristic person in law." In the Notice of preliminary Objection on ground of law filed by the respondents, the followings were given as the grounds of objection. "1. That the plaintiff is not a juristic person in law. 2. That this Honourable Court lacks jurisdiction over this matter." On the writ of summons and statement of claim on pages 1 and 3 respectively, of the record, the appellant describes itself as: "SOCIO-POLITICAL RESEARCH AND DEVELOPMENT LTD." Whereas in subsequent processes filed by the plaintiff/appellant including the processes used at the Court below and the Appeal filed to this Court against the judgment of the Court the Plaintiff/appellant never described itself again as a Limited Company. It has continued to describe itself simply as "Socio-Political Research Development." It is clear that the respondents had challenged personality of the appellant and it is certainly a procedural requirement that whenever issues are joined by parties in pleadings, evidence is required to prove these averments. And it is the person or party whom the burden of establishing that issue lies that must adduce satisfactory evidence. It follows therefore that when there is no such evidence, the issue must necessarily be resolved against the party. However, the nature of the evidence that will suffice as to whether in oral or documentary, may well depend on the issue in question and the requirement of the law, See;African Continental Bank Plc & Anor v. Emostrade Ltd (2002) 7 SCM 7 where the Court held that where the issue of corporate personality of a company is put in issue, only the certificate of Incorporation will suffice as proof. In Bank of Baroda v. Iyalabani Company Limited (2002) 12 SCM 7 this Court opined as follows:- It is not sufficient for a plaintiff being a Corporation or a defendant for that matter to establish its juristic personality by merely stating its name with the addition of "LIMITED" or "PLC". That status which it is claiming for itself has to be proved, except it is admitted by the opposing party by tendering its Certificate of Incorporation or such other evidence as would prove its juristic personality." See: also Reptico S. A. Geneva vs. Afribank Nigeria Plc (2013) 9 SCM 85; (2013) 14 NWLR (Pt.13730 172; (2013) All FWLR (Pt.702) 1652; (2013) 5 SCNJ 479; (2013) 54 NSCQR 600. The appellant did not produce the evidence of its incorporation and there was no iota of evidence that the respondents admitted to any such fact by their pleadings. There is no doubt that the appellant failed to prove that it has juristic personality that entitles him to sue and be sued. This issue must therefore be and is accordingly resolved against the appellant. The appellant having failed to prove that it has the personality to sue and be sued, the whole action instituted by it is incompetent and liable to be struck out. The appellant's case as constituted before the trial Court is hereby struck out not having been proved to have been instituted by a person known to law. It follows therefore that the instant appeal could not stand as there is no competent appellant. In Geneva vs. Afribank (supra) of similar facts, I had opined that having resolved the issue of legal personality against the appellant, I considered it unnecessary to further consider any other issue raised by the appellant, I hold the same view in this matter."Per ARIWOOLA, J.S.C. (Pp. 41-45, Paras. D-E) - read in context
3. ACTION - LEGAL PERSONALITY: Position of the law as regards juristic or legal personality "The juristic personality of a plaintiff is sine qua non to the plaintiff'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 being questioned, it goes to the jurisdiction of the Court and the Court must ascertain that the plaintiff has the capacity to sue before it can proceed to hear the matter. The issue can be raised for the first time in the appellate Court. 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. See: Ataguba & Company v. Gura Nigeria Limited (2005) 6 NWLR (Pt. 927) 429. Since the issue was not resolved before the learned trial Judge entered judgment for the plaintiff, the defendants had the right to appeal and raise the (2018)issue for determination. LPELR-45708(SC) Consequently the Court below was right when it allowed the appeal and set aside the judgment of the trial Court."Per AKA'AHS, J.S.C. (Pp. 54-55, Paras. B-A) - read in context
4. ACTION - LEGAL PERSONALITY: Distinction between juristic personality and locus standi "?It is an elementary principle that a Plaintiff must be accorded legal recognition before the question of standing to sue can arise. In other words, there is a distinction between juristic personality and locus standi, and the question of a Plaintiff's legal personality to commence an action is not to be confused with the question of standing to sue. It is only a legal person; that is a person or body capable of suing or being sued that can possibly lack locus standi to bring or pursue particular actions. What this means is that the question of the existence of legal personality relates to the very existence of the Plaintiff, or the Defendant, as the case may be, whereas the question of locus relates to the existence of the right of the Plaintiff, a natural or artificial person to sue - see Bank of Baroda V. Iyalabani Co. Ltd. (2002) 13 NWLR (Pt.785) 551 SC. So, an association of persons, without incorporation, cannot be regarded as a legal person for the purposes of action in Court - see Fawehinmi V. NBA (No.2) (1989) 2 NWLR (Pt.105) 558 SC. In this case, there is no evidence that the Appellant had been registered as a legal personality with capacity to sue and be sued, and there is nothing to indicate that it acquired a legal personality by any other means, and the Court of Appeal was right to so hold."Per AUGIE, J.S.C. (Pp. 55-57, Paras. F-A) - read in context 5. APPEAL - NOTICE(S) OF APPEAL: Whether an appellant can file more than one notice of appeal "My lords, appellant's issue No.1 and respondents' issue No.3 are same. Both are on the propriety or otherwise of maintaining simultaneously, two or more appeals by same parties in litigation. Before the hearing of the main appeal by the Court below the appellant, who was the respondent at the Court below, filed a separate Notice of Preliminary Objection on 19/9/2005 which was supported by three grounds of objection and a four paragraph affidavit. A counter affidavit was accordingly filed by the respondents as respondents. The Court below considered the affidavit evidence in respect of the preliminary objection and made the following findings: 1. There is nothing before the Court on record to indicate that there is any pending appeal on the matter before this Court and that Appeal No.CA/A/32/2002 which is an interlocutory appeal has been withdrawn. This leg of the objection has no merit and it is hereby dismissed. 2. It is the duty and responsibility of the appellant in an appeal to transmit the record on which his appeal would be heard. In the present case, the appellants/respondents transmitted the records of the trial Court prepared by one Hajiya Zainab Adamu Aliyu (Assistant Chief Registrar (Appear) and it was filed on 13th July, 2004 and assigned Appeal No.CA/A/113/2004. There is no merit in this ground of objection and it is dismissed. 3. It is very clear from the submission of counsel that the complaint of the applicants with regards to omission or non inclusion of certain documents in the record of proceedings pertains to the record of appeal No.CA/A/32/2002 and record appeal No which is the CA/A/113/2004 record of appeal under consideration in this appeal. The applicant seems not to be in tandem with the appellants and the Court on the record of appeal under consideration. The objection of the applicant is entirely on a different record of proceedings not before the Court and which is not subject of scrutiny in this appeal. It is very clear that there is state of confusion in the camp of the applicant/respondent as to the exact record of proceedings of the appeal it filed a notice of preliminary objection on. The two appeals the respondent/applicant had referred to in both its notice of preliminary objection, the affidavit in support and in the written submission of counsel are appeals Nos.CA/A/32/2002 and CA/A/113/2003 both of which are not before this Court. The appeal under consideration is No.CA/A/113/2004. The third ground of objection lacks merit and it is dismissed. Thus, from the findings and holdings of the Court below, there is no any pending appeal between the parties before it other than appeal No.CA/A/113/2004, upon which it delivered its judgment on the 13th day of February, 2008. Now, this is the Court before which all the relevant documents were placed: There can be no better person or authority that could decide better in respect of such documents than that Court. That Court confronted the objector before it (the appellant herein) to justify his claim with evidence which he woefully failed. Then what else can this Court do? I believe nothing. I think for the sake of emphasis, I need to draw attention of prospective appellants and particularly their counsel to be aware by paying due diligence to what the Registry staff who are assigned to receive and assign registration numbers to suits/appeals etc. This is to help detect at initial stage, any mistake or omission which may hinder the progress of their cases. Although there are subsisting decisions of this Court stating that a Court of law will not punish a litigant, where he fulfils obligations placed on him simply because of the omission or failure of a Judge or other Court officials to play their part. Further, granted that there were more than one appeal filed by an appellant, this Court, in several decisions, remains constant that the filing of more than one notice of appeal does not affect the validity of an appeal if all the notices are filed within the statutory period for appealing. In other words, an appeal is not incompetent because it is brought by more than one notice of appeal. See the decisions of Sowemimo, JSC, as he then was and Obaseki, JSC; in Iteshi v. The State (1975) 9 - 11 SC 41; Tukur v. Govt. of Gongola State (1988) 1 NWLR (Pt.68) 39: Akeredolu v. Akinremi (1986) 2 NWLR (Pt.25) 710. On the other side of the coin, the respondents challenged the appellant that the appellant having argued the appeal at the Court below (as respondent) on all the grounds and issues raised in the respondents' (appellants') grounds and Notice of appeal and having adopted the issues in appeal No. CA/A113/2004, is not estopped from complaining and/or caught up with the principle of waivers. This is raised in respondents' issue No.4. There is no response from the appellant on the issue of waiver as the reply brief filed did not consider that issue. It is true from the record of proceedings page 145 in paragraph 3.00, titled "ARGUMENT", the appellant adopted all the issues formulated by the respondents as appellants in that Court which related to appeal No.CA/A/113/2004 (pages 149 - 153 of the Record). It was in consideration of these briefs that the Court below delivered its judgment of 13/02/2008 which is the subject of this appeal. It is thus, clear that the appellant/respondent had effectively taken all the necessary steps that led to the subject matter of this appeal consequent upon that the appellant is estopped and has waived any right to complain, as one cannot eat one's cake and have it, or as one cannot, at the same time, approbate and reprobate. The doctrine of waiver postulates an abandonment of a right. Two elements for waiver to work need to co-exist; firstly, the party against whom the doctrine is invoked must have knowledge or be aware of the act or omission which constitutes the waiver, and in this situation the complaint of the appellant on the multiplicity of appeals before the Court below; secondly, there must be on the part of the person against whom the doctrine is invoked, some unequivocal act adopting or recognizing the act or omission. It has been established in this appeal that the appellant adopted all the issues formulated by the respondents as appellants at the Court below. He argued those issues before the said Court and that Court, accordingly, entered its judgment. Can the appellant, then be heard to complain? I do not think so. He who comes to equity must come with clean hands."Per MUHAMMAD, J.S.C. (Pp. 7-12, Paras. A-D) - read in context
6. COURT - JURISDICTION: What determines jurisdiction of Court to entertain a cause/matter "My lords, I think the first thing we need to settle in this appeal is the barometers or determinants of jurisdiction of a Court. There are several decided authorities which lay the principle that the jurisdiction of a Court is determined by the nature of the plaintiff's claim placed before(2018) it as indorsed in the writ of summons. LPELR-45708(SC) See: Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517; Tolarin & Ors v. Akinnola (1994) 4 SCNJ, 30, Mortgage Bank of Nigeria v. Nigeria Deposit Insurance Co. (2001) KLR (Pt.77) 331; A.G Abia State v. A-G Federation (2003) 4 NWLR (Pt.809) 138; Onuorah v. KRPC Ltd. (2005) 21 NSCQR 130. (2005) 6 NWLR (Pt.921) 393)."Per MUHAMMAD, J.S.C. (P. 18, Paras. C-F) - read in context 7. JURISDICTION - JURISDICTION OF THE FEDERAL HIGH COURT: Whether the jurisdiction of the Federal High Court pertains to cases of simple contracts "Issues two and three (2 & 3) by the appellant are on (1) whether the 1st respondent is indeed an agency of the Federal Government and (2) whether the Federal High Court has exclusive jurisdiction over matters of simple contracts involving agencies of the Federal Government. My lords, from the averments reproduced above from the plaintiff/appellant's statement of claim at the trial Court, especially paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 14, 15, 16,17 and 19, the agreement entered by the appellant and respondents is on a simple contract which was alleged to have been breached by the respondents. By the nature of the claim therefore, a State High Court and an FCT High Court are vested with general jurisdiction to entertain disputes on simple contract which is not covered by the provision of Section 251 of the Constitution. In the appeal on hand, the plaintiff/appellant's claim as per its statement of claim has thus, nothing to do with the administration or management of the respondents who are said to be the Ministry, Federal Capital Territory and a Director and Acting Deputy Director with FCT Women Affairs and Social Development Department. In 2005, this Court, in the case of Felix Onuorah (Trading under the name & style of Ikechi Supermarket & Trading Co.) v. Kaduna Refining & Petro-Chemical Co. Ltd. (A subsidiary of Nigerian National Petroleum Corporation), clarified the issue on when the Federal High Court, could exercise its exclusive jurisdiction and when it loses that exclusivity in favour of State High Courts and the High Court of the Federal Capital Territory. The case is reported as: Onuorah v. K. R. P.C. Ltd. (2005) 6 NWLR (Pt.921) 393. This is a case where the appellant entered into a contract to purchase specified number of empty tins from the respondent at an agreed amount, which he paid to the respondent. But before delivery was made to the appellant, the respondent increased the price of the tins and asked the appellant to pay the difference between the old and new prices. The appellant refused, and insisted that the respondent was bound to deliver to him the quantity of the empty tins he had ordered at the price agreed by the parties. Consequently, the appellant filed a suit against the respondent at the Federal High Court in which he claimed as follows: a) "An order of Court declaring the purported price increase/review of the 18 litres empty tins by the defendant from N25 to N40 with effect from 10/5/93 as not affecting the plaintiff who paid for his own empty tins much earlier than the commencement date of the price increase/review. b) An order of specific performance directing the defendant to issue/supply the plaintiff the remaining 17,012 pieces of the 18 litres empty tins not later than 30 days from the date of judgment. c) N1,000,000 general damages from the defendant to the plaintiff for the breach of the arrangement/agreement between him and the defendant." Subsequently, the parties filed their respective pleadings and the suit proceeded to trial. In its judgment, the trial Court granted the reliefs of declaration and specific performance sought by the appellant, but refused the appellant's claim for general damages. The respondent was dissatisfied with the judgment of the trial Court and it appealed to the Court of Appeal where, with the leave of the Court, it raised the issue of the jurisdiction of the trial Court to entertain the suit. The Court of Appeal, in its judgment, allowed the respondent's appeal on the ground that the trial Court lacked jurisdiction to entertain the appellant's suit. The Court of Appeal also set aside the judgment of the trial Court, and struck out the appellant's suit. The appellant was dissatisfied with the decision of the Court of Appeal and appealed to this Court, where it was contended on his behalf that the respondent is a subsidiary of the Nigerian Federal Government; and that consequently, the trial Court had jurisdiction to entertain the appellant's suit. On the other hand, it was contended on behalf of the respondent that the trial Court lacked jurisdiction to entertain the appellant's suit because it was based on simple contract and that only a State High Court has jurisdiction to entertain such claim. The unanimous decision of this Court, per Akintan, JSC, now (rtd.) stated, inter alia: "A close examination of the additional jurisdiction conferred on the Federal High Court in the section and by the 1979 Constitution clearly show that the Court was not conferred with jurisdiction to entertain claims founded on contract as in the instant case. In other words, Section 230(1) provides a limitation to the general and all embracing jurisdiction of the State High Court because the items listed under the said section 230(1) can only, be determined exclusively by the Federal High Court. All other items not included in the list would therefore still be within the jurisdiction of the State High Court. In the instant case, since disputes founded on contracts are not among those, included in the additional jurisdiction conferred on the Federal High Court, that Court therefore had no jurisdiction to entertain the appellant's claim. The Lower Court therefore acted rightly in its decision that the Federal High Court lacked jurisdiction to entertain the claim. See. Seven-Up Bottling Co. Ltd. v. Abiola & Sons Bottling Co. Ltd. (2001) 13 NWLR (Pt.730) 469 and Trade Bank Plc v. Benilux (Nig.) Ltd. (2003) 9 NWLR (Pt 825) 416 at 430 & 431. The question whether the respondent is a subsidiary or agent of the NNPC or not has no role when a consideration of the jurisdiction of the Court is being made. This is because, as already stated above, the determining factor the Court, which in this case, is one founded on breach of contract." Thus by virtue of Section 251(p) of the 1999 Constitution, as amended, the Federal High Court is vested with exclusive jurisdiction, inter alia, on matters pertaining to the administration or management and control of the Federal Government or any of its agencies. In the appeal on hand, the appellant's claim as stated earlier, does not fall within the ambit of Section 251(p) of the 1999 Constitution. Further, the issue which was over-flogged by the learned counsel for the respective parties, on whether Ministry of the Federal Capital Territory or the Minister of(2018) the Federal Capital Territory areLPELR-45708(SC) agencies or agents of the Federal Government is immaterial in this case as the focal point is on the claim of the appellant as indorsed in its writ of summons and statement of claim. Just a year after Onuorah's case (supra), this Court, again, re-stated its position in Adelekan v. Ecu-Line NV (2006) 12 NWLR (Pt.993) 33 at p.52, it was held as follows: "The provisions of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999... are very clear and unambiguous. It is the section that confers jurisdiction on the Federal High Court, which jurisdiction clearly does not include dealing with any case of simple contract or damages for negligence as envisaged by the action before the trial Court." Further, I am in agreement with my learned brother, Galinje, JSC, where he commented in the case of ROE LIMITED V. UNIVERSITY OF NIGERIA - Appeal No.SC.42/2007, delivered on the 12th day of January, 2018, (unreported) as follows: "The Federal High Court is a special Court with exclusive jurisdiction limited to those items specified under Section 251 of the 1999 Constitution of the Federal Republic of Nigeria and any other jurisdiction as may be conferred upon it by an Act of the National Assembly. A Court must not while interpreting the provisions of Section 251 of the Constitution, and any other statutes whose wordings are very clear and unambiguous import into them something which is not contained in them. Section 251, has clearly made provisions for action against Federal Government or any of its agencies in any other Court in the proviso after sub-paragraph (s) which reads thus:- 'Provided that nothing in the provisions of paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity." There is not any scintilla of doubt therefore, that since the claim of the plaintiff/appellant is based on simple contract, breach of which would involve damages, the High Court of the Federal Capital Territory and not the Federal High Court is the appropriate Court for the settlement of such disputes."Per MUHAMMAD, J.S.C. (Pp. 24-31, Paras. B-E) - read in context
8. JURISDICTION - JURISDICTION OF THE FEDERAL HIGH COURT: Whether the jurisdiction of the Federal High Court pertains to cases of simple contracts "I am in complete agreement with the stated position of the law that where the claim of the plaintiff is based on simple contract and its breach attracts the award of damages against a defendant which is an agency of the Federal Government, the High Court of the Federal Capital Territory or a State High Court will be the appropriate Court to settle such a dispute and not the Federal High Court. See: the proviso to Section 251(1) of 1999 Constitution as amended. See also: Onuorah v. Kaduna Refining & Petrochemical Co. Ltd (2005) 6 NWLR (Pt.921) 393."Per AKA'AHS, J.S.C. (P. 46, Paras. C-F) - read in context 9. JURISDICTION - JURISDICTION OF THE FEDERAL HIGH COURT: Whether the jurisdiction of the Federal High Court pertains to cases of simple contracts "Yes, the issue of whether the FCT High Court had jurisdiction to entertain the Appellant's action has to be resolved in its favour, because its Suit was based on a simple contract, and it is settled that the Federal High Court is not the appropriate Court to hear it - Onuorah v. K.R.P.C. Ltd. (2005) 6 NWLR (Pt.921) 393."Per AUGIE, J.S.C. (P. 55, Paras. C-E) - read in context
10. PRACTICE AND PROCEDURE -ISSUE OF JURISDICTION:Whether the issue of jurisdiction can be raised for the first time at the appellate Court "The appellant contended in the said reply brief of argument that the first issue the respondents raised is whether the appeal is not incompetent by virtue of the fact that the appellant lacks the requisite legal personality to maintain and sustain an action or appeal. The appellant contended further that this is the same as appellant's issue 4. 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."Per ARIWOOLA, J.S.C. (P. 37, Paras. C-E) - read in context
(2018) LPELR-45708(SC) IBRAHIM TANKO MUHAMMAD, J.S.C. (Delivering the Leading Judgment): The appellant, herein, was the respondent/plaintiff at the Court of Appeal, Abuja (Court below) and the High Court of the Federal Capital Territory, Abuja (the trial Court), respectively. The respondents, herein were the appellants at the Court below and defendants at the trial Court. The plaintiff took out a writ of summons dated 3rd August, 1999 and filed along with it a statement of claim.
The matter was before Kolajo, J. and several applications filed by the respondents/defendants in the matter were heard and refused. Kolajo, J. retired before the matter was finally determined and it was consequently re-assigned to I. U. Bello, J. (as he then was). On the 30th of September, 2001, Bello, J. took a motion for stay of proceedings which he granted pending appeal.
The respondents alleged that the appellant, without any notice to(2018) them, moved LPELR-45708(SC) the trial Court to discharge the order of stay of proceedings earlier granted by the same Court when they were served with notice of motion for judgment filed by the appellant. The respondents filed a
1 motion for the stay of proceedings and a motion for preliminary objection to the appellant's motion for judgment. The trial Court refused both applications which were struck out. What was then left before the trial Court was the appellant's motion for judgment and counter affidavit of the respondents. The respondents meanwhile, had filed an interlocutory appeal entered by the Court below as No.CA/A/32/2002. The trial Court overruled the objection of the respondents and entered judgment for the appellant based on the motion for judgment. The respondents were dissatisfied and filed their appeal to the Court below praying that Court to strike out the interlocutory appeal No.CA/A/32/2003 on the ground that it was similar to the substantive appeal filed.
From the records, both parties pursued to its logical conclusion, appeal No. CA/A/113/2004 where the Court below held that the respondents were agencies or agents of the Federal Government and as such the FCT High Court had no (2018)jurisdiction LPELR-45708(SC) to entertain the appellant's action despite the fact that its claim was based on a simple contract. That is the basis of the appellant's appeal to this Court.
2 In this Court, briefs were filed and exchanged with issues formulated therein. Appellant's issues read as follows;-
1. "Whether it is proper for the respondents to maintain Appeals No.CA/A/32/2002, CA/A/113/2003 and CA/A/113/2004 before the Lower Court or neglect to serve their Notice of Appeal, Record of Proceedings and appellant's brief in Appeal No. CA/A/113/2004 on the appellant. 2. Whether the 1st respondent is indeed an agency of the Federal Government. 3. Whether the Federal High Court has exclusive jurisdiction over matters of simple contracts involving agencies of the Federal Government. 4. Whether the respondents validly raised ground 2 of their grounds of appeal which challenges the legal personality of the appellant."
The respondents set out their issues as follows:-
1) "Whether this appeal is not incompetent by virtue of the fact(2018) that the LPELR-45708(SC) appellant lacks the requisite legal personality to maintain and sustain an action or appeal. 2) Whether the 1st respondent is indeed an agency of Federal Government of Nigeria thereby giving the Federal High Court exclusive jurisdiction as provided
3 for in Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria. 3) Whether the respondents/appellants maintained and pursued appeal No.CA/A/113/2004 before the Court of Appeal Abuja Division. 4) Whether the appellant/respondent having argued the appeal at the Court below on all the grounds and issues raised in the appellant/respondents' grounds and Notice of appeal and having adopted the issues in appeal No. CA/A/113/04 entered on the 13/04/09, is not estopped from complaining and/or caught up with the principles of waiver."
Learned counsel for the appellant in his submission on issue one is that there were three different appeal numbers on various processes before the Lower Court. The Record of Proceedings served on the appellant is in respect of appeal No.CA/A/32/2001. The appellant's brief is in respect of Appeal No. CA/A/113/2003. The appellant raised a preliminary(2018) objection LPELR-45708(SC) on the ground that the respondents were maintaining multiple appeals at the same time.
Learned counsel for the appellant stated that although the Lower Court captured the picture of the confusion of the appellant but came to the conclusion that the confusion
4 was self-induced which learned counsel described as "Unfortunate." Learned counsel went on to explain that the Record of Proceedings served on the appellant by the respondents has Appeal No.CA/A/32/2002 and the appellants brief has the number CA/A/113/2003. The respondents never served the Record or appellants' brief in respect of Appeal No.CA/A/113/2004 on the appellant. Now, for some stated reasons, the appellant raised a preliminary objection before the Court below on the ground that the respondents were maintaining multiple appeals at the same time. The Court below, learned counsel submitted, completely neglected appellant's complaint in the preliminary objection and said the appeal before it is CA/A/113/2004 and that Court did not ask the respondents to explain the three different appeal numbers. Learned counsel urged that maintaining these three appeals at once is an abuse that warrants the dismissal of the appeal No.
CA/A/113/2004. He cited the cases ofAfrican
Reinsurance Corp v. Construction Nigerian Ltd. (2003) (2018)13 NWLR LPELR-45708(SC) (Pt.838) 609; Arubo v. Aiyeleru (1993) 3 NWLR (Pt.280) 126, among others. He urged this Court to set aside the judgment of the Lower Court.
5 Respondents issue No.3 to my understanding, is subsumed into appellant's issue No 1 (Learned counsel for the respondents conceded to this much). (See page 18 of the respondents' brief of argument). He conceded further that Appeal No.CA/A/32/2002 existed as an interlocutory appeal, initially. He argued that no appeal No.CA/A/113/2003 ever existed lf it ever existed at all, learned counsel argued that it may have been as a result of misnumbering caused at the Registry in the Court below. Learned counsel for the respondents submitted that assuming, without conceding, that the said appeals existed, there is nothing in law that forbids the filing of more than one appeal. Learned counsel argued further that there is nothing in law stopping an appellant from filing more than one notice of appeal, the respondents/appellants filed, maintained and pursued to its logical conclusion only one substantive appeal No. CA/A/113/2004 in which the Lower Court delivered its judgment of 13th February, 2008. He cited in support
Tukur v. Govt. of Gongola State (1988)1 NWLR (Pt.68) (2018)39 where this LPELR-45708(SC) Court held that the right of appeal cannot be lost by the filing of more than one notice of appeal.
6 Further, it is urged that this Court should hold that filing, maintaining and pursuing one appeal No.CA/A/113/2004 does not amount to abuse of Court processes.
My lords, appellant's issue No.1 and respondents' issue No.3 are same. Both are on the propriety or otherwise of maintaining simultaneously, two or more appeals by same parties in litigation. Before the hearing of the main appeal by the Court below the appellant, who was the respondent at the Court below, filed a separate Notice of Preliminary Objection on 19/9/2005 which was supported by three grounds of objection and a four paragraph affidavit. A counter affidavit was accordingly filed by the respondents as respondents. The Court below considered the affidavit evidence in respect of the preliminary objection and made the following findings:
1. There is nothing before the Court on record to indicate that there is any pending appeal on the matter before this Court and that Appeal No.CA/A/32/2002(2018) which LPELR-45708(SC) is an interlocutory appeal has been withdrawn. This leg of the objection has no merit and it is hereby dismissed. 2. It is the duty and responsibility of the appellant in
7 an appeal to transmit the record on which his appeal would be heard. In the present case, the appellants/respondents transmitted the records of the trial Court prepared by one Hajiya Zainab Adamu Aliyu (Assistant Chief Registrar (Appear) and it was filed on 13th July, 2004 and assigned Appeal No.CA/A/113/2004. There is no merit in this ground of objection and it is dismissed. 3. It is very clear from the submission of counsel that the complaint of the applicants with regards to omission or non inclusion of certain documents in the record of proceedings pertains to the record of appeal No.CA/A/32/2002 and record appeal No which is the CA/A/113/2004 record of appeal under consideration in this appeal. The applicant seems not to be in tandem with the appellants and the Court on the record of appeal under consideration. The objection of the applicant is entirely on a different record of proceedings not before the Court and which is not subject (2018)of scrutiny LPELR-45708(SC)in this appeal. It is very clear that there is state of confusion in the camp of the applicant/respondent as to the exact record of proceedings of the appeal it filed a notice of preliminary objection on. The two appeals the
8 respondent/applicant had referred to in both its notice of preliminary objection, the affidavit in support and in the written submission of counsel are appeals Nos.CA/A/32/2002 and CA/A/113/2003 both of which are not before this Court. The appeal under consideration is No.CA/A/113/2004. The third ground of objection lacks merit and it is dismissed. Thus, from the findings and holdings of the Court below, there is no any pending appeal between the parties before it other than appeal No.CA/A/113/2004, upon which it delivered its judgment on the 13th day of February, 2008. Now, this is the Court before which all the relevant documents were placed: There can be no better person or authority that could decide better in respect of such documents than that Court. That Court confronted the objector before it (the appellant herein) to justify his claim with evidence which he woefully failed. Then what else can this Court do? I believe nothing. I think for the sake of emphasis, I need to draw attention of prospective(2018) appellants LPELR-45708(SC) and particularly their counsel to be aware by paying due diligence to what the Registry staff
9 who are assigned to receive and assign registration numbers to suits/appeals etc. This is to help detect at initial stage, any mistake or omission which may hinder the progress of their cases. Although there are subsisting decisions of this Court stating that a Court of law will not punish a litigant, where he fulfils obligations placed on him simply because of the omission or failure of a Judge or other Court officials to play their part. Further, granted that there were more than one appeal filed by an appellant, this Court, in several decisions, remains constant that the filing of more than one notice of appeal does not affect the validity of an appeal if all the notices are filed within the statutory period for appealing. In other words, an appeal is not incompetent because it is brought by more than one notice of appeal. See the decisions of Sowemimo, JSC, as he then was and Obaseki,
JSC; in Iteshi v. The State (1975) 9 - 11 SC 41; Tukur v. Govt. of Gongola State (1988) 1 NWLR (Pt.68) 39: Akeredolu v. Akinremi (1986) 2 NWLR (Pt.25) 710. On the other(2018) side of LPELR-45708(SC) the coin, the respondents challenged the appellant that the appellant having argued the appeal
10 at the Court below (as respondent) on all the grounds and issues raised in the respondents' (appellants') grounds and Notice of appeal and having adopted the issues in appeal No. CA/A113/2004, is not estopped from complaining and/or caught up with the principle of waivers. This is raised in respondents' issue No.4. There is no response from the appellant on the issue of waiver as the reply brief filed did not consider that issue. It is true from the record of proceedings page 145 in paragraph 3.00, titled "ARGUMENT”, the appellant adopted all the issues formulated by the respondents as appellants in that Court which related to appeal No.CA/A/113/2004 (pages 149 - 153 of the Record). It was in consideration of these briefs that the Court below delivered its judgment of 13/02/2008 which is the subject of this appeal. It is thus, clear that the appellant/respondent had effectively taken all the necessary steps that led to the subject matter of this appeal consequent upon that the appellant is estopped and has waived any right to complain, as one cannot eat one's cake and have(2018) it, or as one LPELR-45708(SC) cannot, at the same time, approbate and reprobate. The doctrine of waiver
11 postulates an abandonment of a right. Two elements for waiver to work need to co-exist; firstly, the party against whom the doctrine is invoked must have knowledge or be aware of the act or omission which constitutes the waiver, and in this situation the complaint of the appellant on the multiplicity of appeals before the Court below; secondly, there must be on the part of the person against whom the doctrine is invoked, some unequivocal act adopting or recognising the act or omission. It has been established in this appeal that the appellant adopted all the issues formulated by the respondents as appellants at the Court below. He argued those issues before the said Court and that Court, accordingly, entered its judgment. Can the appellant, then be heard to complain? I do not think so. He who comes to equity must come with clean hands.
Now, moving on to consider appellant’s issues Nos. 2 and 3 which have been argued together by the learned counsel for the appellant, i.e. whether the 1st respondent is indeed an agency(2018) of the Federal LPELR-45708(SC) Government and whether the Federal High Court has exclusive jurisdiction over matters of simple contracts involving agencies of the Federal Government.
12 Learned counsel for the appellant submits that the 1st respondent is not an agency of the Federal Government but an agency of a State pursuant to the combined effect of Sections 2(2),3(1), 298 299, 301(a) and 302 of the 1999 Constitution. Section 299, he argued further, provides that the provisions of the Constitution shall apply to the Federal Capital Territory, Abuja, as if it were one of the States of the Federation. He cited and relied on what he termed
"Locus Classicus" on the matter, the case ofOkoyode v.
FCDA (2005) 7 WRN 97 at page 132 and 151, where he said the Court of Appeal held all authorities or bodies created for the sake of the Federal Capital Territory including the Minister or Ministry in charge of administering the territory are not agencies of the Federal
Government, relying on the case of Federal Mortgage
Bank of Nigeria v. Olloh (2002) 30 WRN 1 (2002) 9 NWLR (Pt.773) at page 175 where this Court held that Federal Mortgage Bank of Nigeria is not an agency of the Federal Government even though the word "federal" is part of its name.(2018) In the sameLPELR-45708(SC) way, it is further argued, the 1st respondent who carries out no function
13 for the Federal Government cannot be termed as an agency of the Federal Government. The contract which is the subject matter of the suit was for the training of the staff of the 1st respondent which has nothing to do with the Federal Government or any of its agencies. It was argued further that the claim of the appellant before the trial Court could not have been brought before the Federal High Court as it was a matter of the enforcement of a simple contract which is not covered by Section 251(1) of the Constitution.
The case of Onuorah v. KRPC Ltd. (2005) 6 NWLR
(Pt.921) 393, at 405, was cited in support, among others. Learned counsel for the appellant urged this Court to hold that the 1st respondent is not an agency of the Federal Government subject to the jurisdiction of the Federal High Court. Learned counsel for the appellant submitted that the 2nd and 3rd respondents did not file any defence to the suit and they never testified. The Court of Appeal in referring to them as agents of a disclosed principal who should not be liable, exceeded the limits of its power and its findings on this point(2018) ought to be LPELR-45708(SC) set
14 aside by this Court. The claim of the appellant at the trial Court was for damages for breach of contract and it had nothing to do with the administration or control of the Federal Government or any of its agencies. The matter did neither arise from the operation or interpretation of the Constitution nor claiming a declaration or an injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies. The claim, it was contended, is simply for damages for breach of contract. Learned counsel urged this
Court to be persuaded by the authorities Federalin
Mortgage Bank of Nigeria v. Olloh and Onuorah and it should hold that the Federal High Court has no jurisdiction to entertain the appellant's suit because respondents are not agencies of the Federal Government. The claim itself, is not covered by any of the paragraphs of Section 251(1) of the 1999 Constitution.
Respondents' issue No.2 correlates with appellant’s issues 2 and 3. (2018)Learned counsel LPELR-45708(SC) for the respondents submits that the Lower Court rightly dealt with what the trial Court neglected as fundamental as it is. He submits that the
15 Ministry of the Federal Capital Territory, is not an agency of a State but an agency of the Federal Government. Learned counsel made reference to various constitutional provisions of the 1999 Constitution; Federal Capital Territory Act, Cap.F6 LFN, 2004, Vol.6 and judicial authorities. From the provisions of the Act as cited by the learned counsel in his brief of argument, he submits that the Federal Capital territory is not a State and therefore, the Ministry of the Federal Capital Territory cannot be regarded or treated as a state agency but an agency of the Federal Government. Consequently, it is argued further, the trial Court lacked the jurisdiction to entertain this suit as held by the Court below. Learned counsel cited Court of
Appeal case of Military Administrator of Benue State v.
Abayilo (2001) 5 NWLR (Pt.705) 19 at pages 25 - 26. Learned counsel cited as well the provisions of Sections 298 and 299 of the 1999 Constitution that the Federal
Capital Territory is not meant to be the 37th State of the Federal Republic of Nigeria as contemplated by the interpretation(2018) given LPELR-45708(SC) in the case ofOkoyode v. FCDA
(2005) 27 WRN 97. It is learned counsel's submission that the
16 Constitution of the Federal Republic of Nigeria, 1999, in Section 299 vests all legislative powers, the Executive powers and the judicial powers of the Federal Capital Territory in the National Assembly, the President of the Federation and in the Courts established for the Federal Capital Territory, Abuja, respectively. The purport of this section, it is further argued, is to make the Ministry of the Federal Capital Territory an agency of the Federal Government just as other ministries such as Ministry of Justice etc. Learned counsel submitted that the Ministry of Federal Capital Territory as an agency of the Federal Government and the Federal Capital Territory Minister being an agent of the Federal Government cannot and will never be an independent state to confer jurisdiction on the Federal Capital Territory High Court over dispute arising from their operation, management and control. Learned counsel for the respondents urged this Court to hold that i. the decision in NEPA v. EDEGBERO (2002) 12
NSCQR 105, has divested the FCT High Court of jurisdiction(2018) to hear the LPELR-45708(SC) matter. ii. that the Ministry, Federal Capital Territory from the
17 provisions of the Constitution is not one of the states of the Federation iii. that the Ministry, Federal Capital Territory is an agency of the Federal Government and its principal officers are agents of the Agency.
Learned counsel for the respondents urged this Court to uphold his submissions and discountenance the appellant's argument in pages 6 - 11 paragraphs 4.2 to 4.19 of his brief of argument.
My lords, I think the first thing we need to settle in this appeal is the barometers or determinants of jurisdiction of a Court. There are several decided authorities which lay the principle that the jurisdiction of a Court is determined by the nature of the plaintiff's claim placed before it as indorsed in the writ of summons. See:Tukur v.
Government of Gongola State (1989) 4 NWLR (Pt.117) 517; Tolarin & Ors v. Akinnola (1994) 4 SCNJ, 30, Mortgage(2018) Bank LPELR-45708(SC)of Nigeria v. Nigeria Deposit Insurance Co. (2001) KLR (Pt.77) 331; A.G Abia State v. A-G Federation (2003) 4 NWLR (Pt.809) 138; Onuorah v. KRPC Ltd. (2005) 21 NSCQR 130. (2005) 6 NWLR (Pt.921) 393).
From the statement of claim filed by the plaintiff before the trial Court, the claim indorsed in paragraph 19 (rather,
18 20) reads as follows:
"Whereof the plaintiff claims against the Defendants jointly and severally the sum of N1,500,000.00 (One Million, Five Hundred Thousand Naira) only as general damages."
What gave rise to this claim as is clear from statement of claim dated 3rd August, 1999 are, particularly as contained in the following paragraphs.
1. "The plaintiff is a socio-political research and development company registered in Nigeria. It engaged in organizing seminars, workshops and staff trainings for its clients. 2. The 1st defendant is the Ministry of the Federal Government charged with the administration and development of the Federal Capital Territory. 3. The 2nd and 3rd defendants are the Director and Acting Deputy Director (Planning, Research and Statistics) of the FCT Women Affairs & Social Development(2018) Department. LPELR-45708(SC) 4. On February 16th 1998, the plaintiff sent a proposal titled, "AN IMPACT ASSESSMENT OF THE FSP WITHIN THE FCT - A Research Proposal" to the Chairperson FCT, Mrs Julie Useni through the then Director (WA & SD) Mrs. Lois Maikori. The plaintiff gives the defendants notice to produce the same.
19 5. By March, 1998 the plaintiff was contacted by the Department to meet and discuss with Mrs. Iyela the then Deputy Director (PRS) who asked us to drop the idea of impact assessment and concentrate on what will make the Department understand the FCT terrain better, plan programmes and develop advisory memoranda for FCT policy initiatives. 6. The plaintiff complied and submitted another proposal on the 15th of May 1998 together with the cost of the research survey study put at 2.7M Naira. The plaintiff submitted this to Mrs. Iyela. The plaintiff gives the defendants notice to produce the same. 7. The plaintiff was later informed that the final approval had been given by the Chairperson FCT, FSP and the processing of the funds for the training had commenced. But then the former Head of State. General Sani Abacha suddenly died and all action on the project were suspended. This also led to changes in the leadership(2018) of LPELR-45708(SC) the Department. 8. However the plaintiff by a memorandum dated the 21st of December, 1998 intimated the 2nd Defendant of the existence of the training project. She then directed Mr. Fagbemi, the Managing Director of the
20 plaintiff to meet the 3rd Defendant and discuss the project. The plaintiff gives the Defendants notice to produce the same. 9. Subsequent meetings and discussions followed between the plaintiff and the 3rd defendant. The plaintiff submitted a further explanation of the proposal including the details of the phase of training and the cost on the 23rd of March, 1999. The plaintiff gives the defendants notice to produce the same at the trial. 10. By its letter of 3rd May, 1999, the department invited the plaintiff for a further meeting on the 7th of May which the Managing Director of the plaintiff attended. The result of the meeting and the terms of the understanding reached are contained in the plaintiff's letter of 9th May, 1999. The plaintiff hereby gives the defendants notice to produce the same at the trial. 11. By its letter of 18th May, 1999, the department awarded(2018) the plaintiff LPELR-45708(SC) the contract to conduct the training on the terms agreed and the plaintiff acknowledged receipt the same day. 14. The department also sent the plaintiff a formal agreement which it signed and returned to it. 15. Then on the 3rd of June, 1999, out of the blues and
21 without any cause or reason therefore, the 3rd defendant sent the plaintiff a letter with drawing the contract. 16. On the 16th of June, 1999, the plaintiff wrote the 2nd defendant, warning her that under no circumstances should the materials in the plaintiff's proposals and explanations be used to carry out the project in part or in whole. The plaintiff also warned the 2nd defendant that the approval it struggled for and the funds released thereunder for the execution of the project should never be used to carry out the programme. 17. However, these are exactly what the 2nd and 3rd defendants did. They went ahead withdrew the sum of N1.3M approved for the phase 1 of the project and carried out the training using the materials the plaintiff supplied. The trainings were conducted on the 28 - 30th June, 1999. The plaintiff gives the defendant(sic) notice to produce the programme of activities(2018) and the LPELR-45708(SC) course materials used at the training and the subsequent one held two weeks later. 19. By these acts the defendants have cheated the plaintiff and breached its contract with them.”
On the 27th of March, 2003, the plaintiff moved his motion
22 on notice before the trial Court for an order of the Court entering judgment in favour of the plaintiff/applicant in default of defence.
The respondents' counsel opposed the motion and urged the Court to refuse the application and make the order for trial. The learned trial judge adjourned the matter for ruling on 8/5/2003. On 27th May, 2003, the trial judge delivered a judgment. Below is the most important part of that judgment:
"The most important discussion here is whether there is before the Court any defense to the plaintiff's claim to warrant proceeding to hearing of the suit as submitted by the Defendants counsel. I had no difficulties establishing the absence of any such defense and by virtue of Order 27 cpr of this Court, it is legitimate to proceed to judgment as prayed by the plaintiffs counsel. I do not agree with the contention that this Court can only proceed to judgment where the monetary(2018) claim LPELR-45708(SC) is only a liquidated amount. The relevant rules per Order 27 cpr deals with unliquidated claim. Accordingly, the objection as made is discountenanced with while on the other hand, judgment is hereby entered in favour of the plaintiff per his claim against the defendant.”
23 The respondents appealed against the trial Court's judgment to the Court below which allowed the appeal. The Court below held that the respondents were agencies or agents of the Federal Government and that the FCT High Court had no jurisdiction to entertain the appellant’s action.
Issues two and three (2 & 3) by the appellant are on (1) whether the 1st respondent is indeed an agency of the Federal Government and (2) whether the Federal High Court has exclusive jurisdiction over matters of simple contracts involving agencies of the Federal Government. My lords, from the averments reproduced above from the plaintiff/appellant's statement of claim at the trial Court, especially paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 14, 15, 16,17 and 19, the agreement entered by the appellant and respondents is on a simple contract which was alleged to have been breached by the respondents. By the nature of the claim therefore, a State High Court and an FCT High Court are(2018) vested withLPELR-45708(SC) general jurisdiction to entertain disputes on simple contract which is not covered by the
24 provision of Section 251 of the Constitution. In the appeal on hand, the plaintiff/appellant's claim as per its statement of claim has thus, nothing to do with the administration or management of the respondents who are said to be the Ministry, Federal Capital Territory and a Director and Acting Deputy Director with FCT Women Affairs and Social Development Department. In 2005, this Court, in the case of Felix Onuorah (Trading under the name & style of
Ikechi Supermarket & Trading Co.) v. Kaduna Refining & Petro-Chemical Co. Ltd. (A subsidiary of Nigerian National Petroleum Corporation), clarified the issue on when the Federal High Court, could exercise its exclusive jurisdiction and when it loses that exclusivity in favour of State High Courts and the High Court of the
Federal Capital Territory. The case is reported :as
Onuorah v. K. R. P.C. Ltd. (2005) 6 NWLR (Pt.921) 393. This is a case where the appellant entered into a contract to purchase specified number of empty tins from the respondent at an agreed amount, which he paid to the respondent.(2018) But before LPELR-45708(SC) delivery was made to the appellant, the respondent increased the price of the tins and asked the appellant to
25 pay the difference between the old and new prices. The appellant refused, and insisted that the respondent was bound to deliver to him the quantity of the empty tins he had ordered at the price agreed by the parties. Consequently, the appellant filed a suit against the respondent at the Federal High Court in which he claimed as follows: a) "An order of Court declaring the purported price increase/review of the 18 litres empty tins by the defendant from N25 to N40 with effect from 10/5/93 as not affecting the plaintiff who paid for his own empty tins much earlier than the commencement date of the price increase/review. b) An order of specific performance directing the defendant to issue/supply the plaintiff the remaining 17,012 pieces of the 18 litres empty tins not later than 30 days from the date of judgment. c) N1,000,000 general damages from the defendant to the plaintiff for the breach of the arrangement/agreement(2018) LPELR-45708(SC) between him and the defendant." Subsequently, the parties filed their respective pleadings and the suit proceeded to trial. In its judgment, the trial Court granted the reliefs of declaration and specific
26 performance sought by the appellant, but refused the appellant's claim for general damages. The respondent was dissatisfied with the judgment of the trial Court and it appealed to the Court of Appeal where, with the leave of the Court, it raised the issue of the jurisdiction of the trial Court to entertain the suit. The Court of Appeal, in its judgment, allowed the respondent's appeal on the ground that the trial Court lacked jurisdiction to entertain the appellant's suit. The Court of Appeal also set aside the judgment of the trial Court, and struck out the appellant's suit. The appellant was dissatisfied with the decision of the Court of Appeal and appealed to this Court, where it was contended on his behalf that the respondent is a subsidiary of the Nigerian Federal Government; and that consequently, the trial Court had jurisdiction to entertain the appellant's suit. On the other hand, it was contended on behalf of the respondent that the trial Court lacked jurisdiction to entertain(2018) the appellant's LPELR-45708(SC) suit because it was based on simple contract and that only a State High Court has jurisdiction to entertain such claim. The unanimous
27 decision of this Court, per Akintan, JSC, now (rtd.) stated, inter alia:
"A close examination of the additional jurisdiction conferred on the Federal High Court in the section and by the 1979 Constitution clearly show that the Court was not conferred with jurisdiction to entertain claims founded on contract as in the instant case. In other words, Section 230(1) provides a limitation to the general and all embracing jurisdiction of the State High Court because the items listed under the said Section 230(1) can only, be determined exclusively by the Federal High Court. All other items not included in the list would therefore still be within the jurisdiction of the State High Court. In the instant case, since disputes founded on contracts are not among those, included in the additional jurisdiction conferred on the Federal High Court, that Court therefore had no jurisdiction to entertain the appellant's claim. The Lower Court therefore acted rightly (2018)in its decision LPELR-45708(SC) that the Federal High Court lacked jurisdiction to entertain the claim. See. Seven- Up Bottling Co. Ltd. v. Abiola & Sons Bottling Co. Ltd. (2001) 13 NWLR (Pt.730) 469 and
28 Trade Bank Plc v. Benilux (Nig.) Ltd. (2003) 9 NWLR (Pt 825) 416 at 430 & 431. The question whether the respondent is a subsidiary or agent of the NNPC or not has no role when a consideration of the jurisdiction of the Court is being made. This is because, as already stated above, the determining factor the Court, which in this case, is one founded on breach of contract." Thus by virtue of Section 251(p) of the 1999 Constitution, as amended, the Federal High Court is vested with exclusive jurisdiction, inter alia, on matters pertaining to the administration or management and control of the Federal Government or any of its agencies. In the appeal on hand, the appellant's claim as stated earlier, does not fall within the ambit of Section 251(p) of the 1999 Constitution. Further, the issue which was over-flogged by the learned counsel for the respective parties, on whether Ministry of the Federal Capital Territory or the Minister of the Federal Capital Territory are agencies or agents of the Federal Government(2018) is immaterial LPELR-45708(SC) in this case as the focal point is on the claim of the appellant as indorsed in its writ of summons and statement of claim.
29 Just a year after Onuorah's case (supra), this Court, again, re-stated its position in Adelekan v. Ecu-Line NV
(2006) 12 NWLR (Pt.993) 33 at p.52, it was held as follows:
“The provisions of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999… are very clear and unambiguous. It is the section that confers jurisdiction on the Federal High Court, which jurisdiction clearly does not include dealing with any case of simple contract or damages for negligence as envisaged by the action before the trial Court.” Further, I am in agreement with my learned brother,
Galinje, JSC, where he commented in the case ofROE
LIMITED V. UNIVERSITY OF NIGERIA – Appeal No.SC.42/2007, delivered on the 12th day of January, 2018, (unreported) as follows:
"The Federal High Court is a special Court with exclusive jurisdiction limited to those items specified under Section 251 of the 1999 Constitution of the (2018) LPELR-45708(SC) Federal Republic of Nigeria and any other jurisdiction as may be conferred upon it by an Act of the National Assembly. A Court must not while interpreting the provisions of Section 251 of the Constitution, and any other statutes whose wordings are very
30 clear and unambiguous import into them something which is not contained in them.Section 251, has clearly made provisions for action against Federal Government or any of its agencies in any other Court in the proviso after sub-paragraph (s) which reads thus:- 'Provided that nothing in the provisions of paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity." There is not any scintilla of doubt therefore, that since the claim of the plaintiff/appellant is based on simple contract, breach of which would involve damages, the High Court of the Federal Capital Territory and not the Federal High Court is the appropriate Court for the settlement of such disputes. Accordingly, I find merit in this issue which I determine in favour of(2018) the appellant. LPELR-45708(SC)
Now, appellant's issue four which tallies with respondents' issue No.1, is a challenge on the legal personality of the appellant, that it is not a juristic personality. But, who is the appellant in this appeal?
31 Paragraph 1 of the appellant/plaintiff's statement of claim at the Court of trial, stated that the plaintiff is a socio- political research and development company registered in Nigeria. The respondents' statement of defence, in denial, stated that the defendants were not aware of the plaintiff's status and that the plaintiff was not a juristic person in law. The trial Court treated the matter in a Ruling delivered on 9/12/99 holding that the plaintiff/appellant was an outfit registered in Nigeria:
"All I now know about the plaintiff is that it is a Socio-Political Research and Development outfit registered in Nigeria as per paragraph 1 of the Statement of Claim. It is not known under what part of the Companies and Allied Matters Act that it was registered. For instance, if the plaintiff was registered in the business name register, it could besides its legal capacity sue and be sued as per Ndoma-Egba, JCA in Yusuf v. Adewuyi Brothers & Co. (supra). If it is a partnership or a friendly society, it has a right to sue or be(2018) sued under LPELR-45708(SC) its name. See: Carlen Nig. Ltd's case (supra) Order 11 Rule 9 of the High Court of the FCT
32 Abuja (Civil Procedure Rules) 1991 also allows partners sues or be sued in the name of their firm." However, the Court below, in its judgment delivered on 13th February, 2008, per Aboki, JCA, made the following findings:
"I have examined the printed records of this appeal, there is however no evidence that the plaintiff/respondent have(sic) actually been registered under the personality to sue and be sued. It has not been shown from its name or from the averment in paragraph 1 of the Statement of Claim whether it is a private limited liability company or a public liability company. It is clear from its name that it has not complied with the provisions of Section 29 of the Companies and Allied Matters Act which requires all companies to end their names with the word "Limited" - Ltd or "Public Liability Company” - Plc etc. There is nothing before the Court to show that the plaintiff/respondent has been registered as a business(2018) name under LPELR-45708(SC) part B of Companies and Allied Act which requires disclosure of the business name registration number as required by Section 582 sub Section 1(c) of the Act. It was also not disclosed
33 whether the plaintiff/respondent has been registered as a partnership." Thus, the plaintiff/respondent/appellant was found to be an unregistered outfit under the laws operating in Nigeria. The consequence is that a non-juristic person can neither sue nor be sued, for want of capacity. I adopt the analysis given by the Court below when it says:
"It is trite that a non-juristic person cannot sue or be sued. It follows therefore that no action can be brought by or against any party other than a natural person or persons except where such a party has been conferred by a statute expressly or impliedly with a legal capacity. A statute can confer a legal personality on a party thus:- a) under the name by which it may sue or be sued. Or, b) a right to sue or be sued by that name such as in the cases of business name, partnership, trade union etc. See. Lion of Africa Insurance Company Ltd. v Esan (1999)(2018) 8 NWLR LPELR-45708(SC) (Pt.614) 197 at 201; Carlen Nig Ltd v. University of Jos(1994) 1 NWLR Pt 323) 631 Juridical personality is acquired when the law accepts and recognises the existence of unincorporated associations. On the other hand the capacity to sue and be sued is not thereby given by a
34 mere recognition or acceptance of its existence, only the law confers that attribute or capacity and in most statutes the capacity to sue and be sued of an authority or body they create is expressed. See: Lion of Africa Insurance Pls v. Esan (supra) at page 201; Peat Marwick Ani Ogunde & Co. v. Okike(1995) 1 NWLR (Pt.369) 71. I have examined the printed records of this appeal, there is however no evidence that the plaintiff/respondent have(sic) actually been registered under the Companies and Allied Matters Act or any statute and have(sic) acquired legal personality to sue or be sued. It has not been shown from its name or from the averment in paragraph 1 of the Statement of Claim whether it is a private limited liability company or a public liability company. It is clear from its name that it has not complied with the provisions of Section 29 of the Companies and Allied Matters Act which requires all companies to end their names (2018)with the LPELR-45708(SC)word "Limited” - Ltd or "public Liability Company" - Plc etc. There is nothing before the Court to show that the plaintiff/respondent has been registered as a business name under Part B of the Companies
35 and Allied Matters Act which requires disclosure of the business name registration number as required by Section 582(1)(c) of the Act. It was also not disclosed whether the plaintiff/respondent has been registered as a partnership.” The Court below, in my view, has stated the correct position of the law in relation to Companies and Allied matters. In this regard, issue 4 is decided against the appellant. The defendants/respondents had the right to raise this issue as it affects the trial Court's jurisdiction. This appeal lacks merit on this issue alone and it is hereby dismissed. I make no order as to costs.
OLUKAYODE ARIWOOLA, J.S.C.:My Lord I.T, Muhammad, JSC, obliged me the preview of the lead judgment which adequately considered all the issues raised in the appeal. I agree that the appeal is unmeritorious and should be dismissed. I shall therefore chip in a few words in support of only one issue. (2018) LPELR-45708(SC)
It is clear that both parties, the appellant and the respondents raised in this appeal four (4)
36 issues respectively from the Grounds of Appeal filed by the appellant. The respondents' four issues are said to be the same materially. Indeed, the appellant in its reply brief of argument in paragraph 1.0 clearly states thus:
"Instead of adopting the issues raised by the appellant and succinctly answering them, the respondents have formulated their own issues which are the same as the appellant’s four issues only differently numbered.”
The appellant contended in the said reply brief of argument that the first issue the respondents raised is whether the appeal is not incompetent by virtue of the fact that the appellant lacks the requisite legal personality to maintain and sustain an action or appeal. The appellant contended further that this is the same as appellant’s issue 4. 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(2018) at any timeLPELR-45708(SC) and level of the Courts.
The respondents had argued that it is settled principle of law that only natural persons, that is, human beings and
37 juristic or artificial persons, that is, body corporate, are competent to sue and be sued. Learned counsel for the respondents contended that no action can be brought by or against any party other than a natural person or persons unless such party has been clothed and or given corporate personality by statute expressly or impliedly. He relied on
Knight and Searle vs. Dove (1964) 2 All ER 307 at 309; Abia State University vs. Anyaibe (1996) 3 NWLR (pt.439) 649 at 652.
Learned counsel submitted that a Law suit, is in essence, the determination of legal rights and obligations in any given situation. He contended that only natural and juristic persons in whom alone such rights and obligations can be vested are capable of being proper parties to law suits. He submitted that where either of the parties is not a legal person, the other party may raise this fact as a preliminary objection which if upheld normally lead to the action being struck out. He relied on Shittu Vs. Ligati (1941) 16 NLR
21. (2018) LPELR-45708(SC)
Learned counsel contended that at the trial Court the respondents, as defendants, validly raised the issue of the juristic personality of the appellant as plaintiff as a
38 preliminary point, challenging the jurisdiction of the trial Court. The motion was however struck out on the ground that it was not supported or accompanied with an affidavit. A subsequent preliminary objection later filed was also struck out on the ground that it was an abuse of Court process.
Learned counsel contended that the main type of juristic corporate bodies in Nigeria are companies registered under Part A of the Companies and Allied Matters Act 1990, Business names registered under Part B and trustees registered under Part C of the CAMA. He submitted that the appellant does not fall under any of the above categories in consequence of which it has no leg on which to stand.
Learned counsel contended further that where a defendant puts the juristic personality of the plaintiff in issue, the plaintiff ought to and should lead evidence to establish that the name(2018) is duly incorporated LPELR-45708(SC) as such under the companies and Allied Matters Act, 1990. Where the plaintiff failed to do this, learned counsel submitted, that the result is that there is nothing to show that the plaintiff is a juristic person which can sue and be sued. He relied on
39 Nduka vs. Ezenwaku (2001) NWLR (Pt.109) 494 of 499.
Learned counsel contended that the issue of juristic personality of the plaintiff/appellant as raised by the defendants/respondents borders on the competence and jurisdiction of the Court and it goes to the root of the matter which the Court ought to have dealt with before proceeding to take further steps on the matter. He submitted that it is a matter so fundamental and germane to the extent that even if not raised at the trial Court, the law allows it to be raised on appeal and even by the Court suo moto. He relied on Onyema & Ors Vs. Oputa & Ors
(1987) 2 NSCC 900; Madukolu & Ors Vs. Nkemdilim (1962) 2 NSCC 374.
Learned counsel further submitted that once it is established that there is no proper plaintiff before the Court, it is not necessary to examine whether or not there is a proper(2018) cause of action.LPELR-45708(SC) He urged the Court to strike out the appellant's name and dismiss the appeal.
In responding to the above, the appellant contended that the issue of legal personality of the plaintiff was raised by the respondents in their notice of preliminary objection, dated 27th August, 1997 but that this notice was
40 not included in the record of proceedings compiled by the respondents. Learned appellant's counsel submitted that the said preliminary objection was argued and ruled upon on 9th December, 1999 whereby the objection was overruled and struck out. He submitted that there was no appeal against the said ruling by the respondents. Also, that on the 10th of May, 2000 the trial Court again in its ruling on a subsequent motion on the same issue of legal personality of the appellant struck out same for being an abuse of Court process. He urged the Court to discountenance the respondents' argument on the issue.
First and foremost, it is clear from the records that the appellant was the plaintiff, at the trial Court where this case originated from. A plaintiff is said to be the party who brings a civil suit in a Court of law. And a party who commences an action in Court must be a person known to law, that is, a natural or an artificial person, given legal personality by statute. See; Alhaji Mailafia Trading and
Transport(2018) Company LPELR-45708(SC) Ltd v. Veritas Insurance Company Ltd. (1986) 4 (Pt.38) 802. It means that no action can be brought or commenced by or against any party
41 other than a natural person or body of persons, unless such a party has been given by statute expressly or impliedly either (a) a legal personality under the name by which it sues or is sued or (b) a right to sue or be sued by the name,
See; Knight and Searle vs. Dove (1964) 2 All ER 307;
Administrator Estate of General Sanni Abacha v. Eke- Spiff & Ors (2009) 3 SCM 1; (2009) NWLR (Pt.1133) 92. There is no doubt that from the onset, parties had joined issue on the juristic personality of the appellant. The appellant in paragraph 2 of the Statement of Claim had pleaded thus:
"The plaintiff is a socio-political research and development Company registered in Nigeria. It engaged in Organizing seminars, workshops and Staff trainings for its clients.” The respondents as defendants controverted the above averment of the appellant in their paragraph 2 of the statement of defence as follows:
"The defendants(2018) are LPELR-45708(SC) not aware of the plaintiff’s status and shall at the trial lead evidence to show that the defendant (sic) is not a juristic person in law.” In the Notice of preliminary Objection on ground of law
42 filed by the respondents, the followings were given as the grounds of objection.
"1. That the plaintiff is not a juristic person in law. 2. That this Honourable Court lacks jurisdiction over this matter." On the writ of summons and statement of claim on pages 1 and 3 respectively, of the record, the appellant describes itself as: "SOCIO-POLITICAL RESEARCH AND DEVELOPMENT LTD.” Whereas in subsequent processes filed by the plaintiff/appellant including the processes used at the Court below and the Appeal filed to this Court against the judgment of the Court the Plaintiff/appellant never described itself again as a Limited Company. It has continued to describe itself simply as “Socio-Political Research Development.” It is clear that the respondents had challenged personality of the appellant and it is certainly a procedural requirement(2018) that whenever LPELR-45708(SC) issues are joined by parties in pleadings, evidence is required to prove these averments. And it is the person or party whom the burden of establishing that issue lies that must adduce satisfactory evidence. It follows therefore that when there is no such
43 evidence, the issue must necessarily be resolved against the party. However, the nature of the evidence that will suffice as to whether in oral or documentary, may well depend on the issue in question and the requirement of the law, See;African Continental Bank Plc & Anor v.
Emostrade Ltd (2002) 7 SCM 7 where the Court held that where the issue of corporate personality of a company is put in issue, only the certificate of Incorporation will suffice as proof.
In Bank of Baroda v. Iyalabani Company Limited
(2002) 12 SCM 7 this Court opined as follows:-
It is not sufficient for a plaintiff being a Corporation or a defendant for that matter to establish its juristic personality by merely stating its name with the addition of “LIMITED” or “PLC”. That status which it is claiming for itself has to be proved, except it is admitted by the opposing party by tendering its Certificate of Incorporation or such other evidence as would prove its juristic personality.” See: also(2018) Reptico S. LPELR-45708(SC) A. Geneva vs. Afribank Nigeria Plc
(2013) 9 SCM 85; (2013) 14 NWLR (Pt.13730 172; (2013) All FWLR (Pt.702) 1652; (2013) 5 SCNJ 479; (2013) 54 NSCQR 600.
44 The appellant did not produce the evidence of its incorporation and there was no iota of evidence that the respondents admitted to any such fact by their pleadings. There is no doubt that the appellant failed to prove that it has juristic personality that entitles him to sue and be sued. This issue must therefore be and is accordingly resolved against the appellant. The appellant having failed to prove that it has the personality to sue and be sued, the whole action instituted by it is incompetent and liable to be struck out. The appellant's case as constituted before the trial Court is hereby struck out not having been proved to have been instituted by a person known to law. It follows therefore that the instant appeal could not stand as there is no competent appellant.
In Geneva vs. Afribank (supra) of similar facts, I had opined that having resolved the issue of legal personality against the appellant, I considered it unnecessary to further consider any other issue raised by the appellant, I hold the (2018)same view in LPELR-45708(SC) this matter.
It is for the above reasons and the more detailed reasons contained in the lead judgment of my learned brother
45 Tanko Muhammad, JSC that I too strike out the suit No.FCT/HC/V/499/99 as being incompetent and dismissed the appeal.
I abide by other consequential orders made in the said lead judgment including the order as to costs. Appeal dismissed.
KUMAI BAYANG AKA’AHS, J.S.C.: I had the privilege of reading before now the judgment of my learned brother, Ibrahim Tanko Muhammad JSC.I am in complete agreement with the stated position of the law that where the claim of the plaintiff is based on simple contract and its breach attracts the award of damages against a defendant which is an agency of the Federal Government, the High Court of the Federal Capital Territory or a State High Court will be the appropriate Court to settle such a dispute and not the Federal High Court. See: the proviso toSection
251(1) of 1999 Constitution as amended. See also:
Onuorah(2018) v. Kaduna LPELR-45708(SC) Refining & Petrochemical Co. Ltd (2005) 6 NWLR (Pt.921) 393.
At the trial Court, the defendants (now respondents) filed a
46 Notice of Preliminary objection challenging the legal capacity of the plaintiff to sue. The preliminary objection dated 14 March, 2002 but filed on 15 March 2002 reads as follows:-
NOTICE OF PRELIMINARY OBJECTION TAKE NOTICE that the defendants/Applicants at the next hearing of this suit shall raise a preliminary objection to the hearing of the motion No: M/1392/99 dated the 15th day of October, 1999 praying this Honourable Court to enter judgment in favour of the Plaintiff for default of defence on the following grounds:- 1. That the motion is incompetent and unconstitutional 2. That the Plaintiff is incompetent and incapable of suing the Defendant 3. That the above motion is malicious and is an abuse of process of Court. PARTICULARS OF OBJECTION 1. That (2018)by virtue of LPELR-45708(SC) Section 36 of the Constitution of the Federal Republic of Nigeria 1999, a person is entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality. 2. That the Plaintiff is not a legal personality in accordance with the Law and therefore incapable of
47 instituting a legal action. 3. That the motion is incompetent, malicious and an abuse of due processes of this Honourable Court by virtue of Orders 46 Rule 1 and 2(1) and 47 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure Rules) 1991 Dated the 14th day of March, 2002 Signed: Mela Audu Nunghe Esq. (Counsel to the Applicant) Plot 499 Tafawa Balewa Way Area 3, Garki, Abuja".
The preliminary objection was struck out and the trial Court proceeded to enter judgment for the plaintiff in default of defence. A counter-affidavit opposing the motion for judgment was similarly struck out. The judgment was delivered on 27 May, 2003. The defendants appealed against the judgment by notice of appeal filed on 30 May, 2003 and the complaint in Ground B of the Notice of Appeal was:- (2018) LPELR-45708(SC) (B) That the learned trial Judge erred in law in proceeding and entering judgment against the appellants in favour of the respondent who is a non-juristic personality and consequently incompetent and incapable of suing and maintaining a suit.
PARTICULARS OF ERROR (i) That the respondent in the Writ of Summons is
48 a company registered under Part C of the Companies and Allied Matters Act Cap 59 Vol.III LFN 1990. (ii) That the respondent's action is only competent and sustainable if it is brought in the names of the registered trustees. (iii) That the respondent cannot even sue by its business name even if it is registered under Part B of the Companies and Allied Matters Act Cap 59 Vol. III LFN 1990.(See pages 114-117 of the records).
The appellants raised 3 issues for determination. Issue 2 was tied to Ground B or Ground 2 of the Notice and it read thus:-
"Whether a non juristic personality can maintain an action in law".
The Lower Court reproduced paragraph 1 of the Statement of Claim where the plaintiff averred -
"The plaintiff is a socio-political research and development(2018) company LPELR-45708(SC) registered in Nigeria. It (sic) engaged in organizing seminar workshop and staff trainings for its clients" and went on to consider the arguments of learned counsel on the claim that it is a non-juristic person and so incapable of suing or being sued and held per Aboki JCA at pages 255-255 of the records:-
"It is trite that a non-juristic person
49 cannot sue or be sued. It follows therefore that no action can be brought by or against any party other than a natural person or persons except where such a party has been conferred by a statute expressly or impliedly with a legal capacity. A statute can confer a legal personality on a party thus:- (a) under the name by which it may sue or be sued, or, (b) a right to sue or be sued by that name such as in the cases of business name, partnership, trade union etc. See: Lion of Africa Insurance Company Ltd v. Esan (1999) 8 NWLR (PT.614) 197 AT 201; Carlen Nig. Ltd v. University of Jos (1994) 1 NWLR (Pt.323) 631. Juridical personality is acquired when the law accepts and recognises the existence of unincorporated associations. On the other hand the capacity to sue and be sued is not thereby given by a mere recognition or acceptance of its existence, only the law confers(2018) that attributeLPELR-45708(SC) or capacity and in most statutes the capacity to sue and be sued of an authority or body they create is expressed. See: Lion of Africa Insurance Plc v. Esan supra at page 201; Peat Marwick Ani Ogun & Co. v. Okike (1995) 1 NWLR (Pt.369) 71.
50 I have examined the printed records of this appeal, there is however no evidence that the Plaintiff/Respondent have actually been registered under the Companies and Allied Matters Act or any statute and have acquired legal personality to sue or be sued. It has not been shown from its name or from the averment in paragraph 1 of the Statement of Claim whether it is a private limited liability company or a public liability company. It is clear from its name that it has not complied with the provisions of Section 29 of the Companies and Allied Matters Act which requires all companies to end their names with the word "Limited” - Ltd or “Public Liability Company” - Plc etc. There is nothing before the Court to show that the Plaintiff/Respondent has been registered as a business name under part B of the Companies and Allied Matters Act which requires disclosure of the business name registration number as required by Section 582(1)(c) of the Act. It was also not disclosed whether(2018) the plaintiff/Respondent LPELR-45708(SC) has been registered as a partnership".
The Court below found merit in the appeal and allowed it thereby setting aside the judgment of the trial Court. In
51 ground 4 of the Notice of Appeal to this Court the appellant complained that the Justices of Appeal erred when they entertained ground 2 of the Respondents' notice of appeal though it was not properly brought before them and in the particulars the appellant said that the trial Court did not decide the question of the appellant's legal personality in its judgment appealed against.
When learned counsel for the appellant adopted his brief on 17th April, 2018, pages 12 and 13 of the said brief were missing in the justices records. It was when learned counsel were invited to address the Court on issue 4 in the appellant’s brief on Monday 16 July, 2018 that the appellant's counsel supplied the missing pages.
Learned counsel's argument on the issue is that the ruling of the trial Court on the personality of the plaintiff/appellant was delivered on 9 December, 1999 overruling the objection and striking it out. The respondents(2018) did not LPELR-45708(SC) appeal against the ruling but filed another objection on the same grounds on 8 February, 2000 and on 10 May, 2000, the Court ruled that the second motion was an abuse of its process and struck it out.
52 Learned counsel maintained that the ruling of 10 May 2000 was not appealed against. He said that the respondents raised this matter before the Lower Court as if the issue was never determined before. He contended that a matter can only come from a High Court to the Court of Appeal by way of an appeal against the decision of the Lower Court citing Section 241(1) of the 1999 Constitution in support.
He also relied on the following cases -Co-operative &
Commerce Bank Plc v. Ekperi (2007) 3 NWLR (Pt.1022) 493 at 508 and Dalek Nigeria Ltd v. Ompadec (2007) 7 NWLR (Pt.1033) 402 at 430in urging this Court to strike out ground B of the appeal before the Court below as it was improperly brought and ought to have been dismissed. He therefore urged this Court to set aside the decision of the Court below on the issue of juristic personality of the appellant.
Learned counsel for the respondents argued that the appellant is estopped from complaining about the appeal in the Court(2018) below since LPELR-45708(SC) he adopted all the issues in appeal No.CA/133/04 under the principle of waiver. He contended that the steps which the appellant took in the Court below contradict and conflict with his present position.
53 He submitted that no miscarriage of justice was occasioned by the Court below and the appellant has not established that it has suffered a miscarriage of justice when the Court below allowed the appeal.
The juristic personality of a plaintiff is sine qua non to the plaintiff’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 being questioned, it goes to the jurisdiction of the Court and the Court must ascertain that the plaintiff has the capacity to sue before it can proceed to hear the matter. The issue can be raised for the first time in the appellate
Court. 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. See: Ataguba & Company v. Gura Nigeria (2018) LPELR-45708(SC) Limited (2005) 6 NWLR (Pt. 927) 429. Since the issue was not resolved before the learned trial Judge entered judgment for the plaintiff, the
54 defendants had the right to appeal and raise the issue for determination. Consequently the Court below was right when it allowed the appeal and set aside the judgment of the trial Court. The appeal lacks merit and it is hereby dismissed. I make no order on costs.
AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead Judgment just delivered by my learned brother, I. T. Muhammad, JSC, and I readily agree with him that in the circumstances of this case, this Appeal must be dismissed.
Yes, the issue of whether the FCT High Court had jurisdiction to entertain the Appellant's action has to be resolved in its favour, because its Suit was based on a simple contract, and it is settled that the Federal High
Court is not the appropriate Court to hear it - Onuorah v.
K.R.P.C. Ltd. (2005) 6 NWLR (Pt.921) 393. However, the issue that derailed this Appeal and determined same against the(2018) Appellant LPELR-45708(SC) is whether the Appellant is a juristic person or not.
It is an elementary principle that a Plaintiff must be accorded legal recognition before the question of standing
55 to sue can arise. In other words, there is a distinction between juristic personality and locus standi, and the question of a Plaintiff's legal personality to commence an action is not to be confused with the question of standing to sue. It is only a legal person; that is a person or body capable of suing or being sued that can possibly lack locus standi to bring or pursue particular actions. What this means is that the question of the existence of legal personality relates to the very existence of the Plaintiff, or the Defendant, as the case may be, whereas the question of locus relates to the existence of the right of the Plaintiff, a natural or artificial person to sue - see Bank of Baroda V.
Iyalabani Co. Ltd. (2002) 13 NWLR (Pt.785) 551 SC. So, an association of persons, without incorporation, cannot be regarded as a legal person for the purposes of action in
Court - see Fawehinmi V. NBA (No.2) (1989) 2 NWLR
(Pt.105) 558 SC. In this case, there is no evidence that the Appellant had been registered as a legal personality with capacity to sue and be (2018)sued, and LPELR-45708(SC)there is nothing to indicate that it acquired a legal personality by any other means, and the
56 Court of Appeal was right to so hold. Thus, I also dismiss this Appeal. I make no order as to costs.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead judgment of my learned brother Ibrahim Tanko Muhammad, JSC, just delivered. I agree that the appeal lacks merit and it is accordingly dismissed by me.
57
(2018) LPELR-45708(SC) Appearances:
Isaac Okpanachi with him, O. O. Ifijeh, Esq. For Appellant(s)
Mela A. Nunge with him, Sylvester Ogbelu and O.L. Okeke, Esq. For Respondent(s)
(2018) LPELR-45708(SC)