Nto Andrew O. Ansa & Ors. V. The Owner/managing Director Rvl Motors (2008)
LawGlobal-Hub Lead Judgment Report
NWALI SYLVESTER NGWUTA, J.C.A.
On 17/1/02 the appellants then plaintiffs, issued a writ of summons and claimed the following reliefs against the defendants now respondents:
“Perpetual injunction to restrain the defendant, its servants, agents and/or assigns from further trespassing into the plaintiffs’ land on the Murtala Mohammed Highway, opposite Naval Officers Quarters/Federal High Court, Calabar now used by RVL Motors.
- N15 Million damages for trespass.”
The owner/Managing Director, RVL Motors entered appearance as the defendant on 28/1/02. The appellants filed their statement of claim on 8/2/02 and on 6/3/02 the defendant, now respondent filed a notice of preliminary objection on the following grounds:
“1. That this Honourable Court lacks the jurisdiction to entertain the suit.
- That the defendant in this suit is not a juristic person and as such unknown to law.
- That there are no proper parties before this Honourable Court.”
After series of adjournments, Counsel for the parties concluded arguments on the preliminary objection on 16/2/05 and the Court adjourned to 10/3/2005 for ruling. In the ruling of 10/3/2005, the trial court declared as follows:
“I have no difficulty at all in reaching the conclusion that the defendant as constituted is unknown to law and the name of the defendant is accordingly struck out. There being no other defendant left to sustain this suit, it is hereby struck out as a civil suit cannot stand without a defendant in our advertorial system of jurisprudence.”
(See page 13 of the Records).
The appellants felt aggrieved and appealed to this court on four grounds. In their brief of argument the appellants formulated the following two issues for determination:
“1. Whether proceedings can be commenced against the owner or Managing Director of a Business or Businesses name.
- Whether terminating the matter without hearing on merit has not denied the plaintiffs of fair hearing.”
In his own brief of argument the respondent presented three issues for determination:
1) Whether the defendant/respondent could be proceeded against in the name of owner/Managing Director RVL Motors.
2) Whether such title as owner/Managing Director can substitute the names of a juristic person known to law.
3) Whether the striking out of the suit by the learned trial Judge after taking argument from both parties on the preliminary objection could in any way amount to a denial of the plaintiffs/appellants right to fair hearing.”
The appellants argued the two issues together in their brief.
Learned Counsel for the appellants reproduced paragraphs 10 & 11 of the statement of claim and Memorandum of Appearance as proof that RVL Motors is present on the land but was using force to hide the identity of its owners. He said RVL Motors was unknown to the appellants. It was not a limited liability Company. Counsel referred to Order 11 Rules 9 & 26 and MDERSK LINE v ACHIDE INVESTMENT LTD. (2002) 11 NWLR (Pt. 778) 317 and contended that though a trade mark, not being a juristic person can neither sue nor be sued its proprietor can sue and be sued.
Counsel referred to BLACK’S LAW DICTIONARY 6th Edition pages 405 and 960 for the definitions of the words ‘Owner’ and ‘Manager’ respectively and submitted that the words “Owner/Managing Director” depicts juristic persons holding certain offices. Reference was made to the cases of Persons, Names Land Owner v Sharis Int. Ltd. (2006) 8 NWLR (Pt. 982) 225 and Mudashiru v. Persons Unknown and Ors.(2006) 8 NWLR (Pt. 982) 267 as well as Sections 13 and 14 of the High Court Law Cap 112 Laws of Cross River State and it was argued that the Court could fall back on English rules in a suit against unknown persons. He argued that the disposal of the matter in limine denied the appellants the opportunity of applying to discover the owners of RVL Motors under Ord. 11 rule 9 of the High Court rules (supra) and denied the appellants their right to a fair hearing guaranteed by S. 36 of the Constitution of the Federal Republic of Nigeria 1999. He relied on the decision in Sharis Int. Ltd. (supra) to the effect that only a person who has made out a prima facie case that he is a person interested as a party in the suit can appeal therefrom. Counsel referred to Order 47 rule 1 of the High Court rules of Cross River State 1987 and contended only an order to determine the matter on the merit can do justice in the case. Counsel argued that the order for costs to the defendant is an acknowledgment by the lower court 0f the existence of a proper defendant in the suit. He urged the court to allow the appeal, set aside the ruling of the lower court and remit the case for trial on the merit.
In issue one in his brief learned counsel for the respondent relied on Shitta & Ors. v. Ligah & Ors. (1941) 16 NLR 73 Fawehinmi v. NBA (No.2) (1989) 2 NWLR (Pt. 105) 558 at 640 – 641; Ataguba & Company v. Sura (2000) 7 NWLR (Pt. 24) 1522 at 1546; Occupier/Persons Unknown v. Ikediegbo (2004) 7 WLR Page 1055 at 1062 – 1063 paras H – A and argued the Owner/Managing Director RVL Motors, not being an entity known to law, is incapable of suing or being sued. Counsel conceded that Order 11 rules 9 and 26 of the High Court Rules (supra) allow a party to sue under that party’s business name and style but the order does not apply to owner/Managing Director of RVL. He urged the Court to resolve issue one in favour of the respondent.
On issue two, Counsel referred to Emecheta v. Ogueri (1996) 5 NWLR (Pt. 447) 227; Onwuka Kalu v. Chief Victor Odili (1992) 6 SCNJ 76; Ogbonmagbe Bank Ltd. v. General Manager G. B. Ollivant Ltd. (1961) 1 ALL NLR 116 and Njemanze v Shell B. P. Company, Port Harcourt (1996) 1 ANLR (Page not stated) and submitted that an action commenced by or against a non-legal person is incompetent. Placing reliance on Acomes Oil Palm v Iserhienrhien (2001) 85 LRCN 873 and Onwunalu & Ors v. Osadema (1971) NSCE Vol. 7 page 14, he contended that the proper order in the circumstances is one for striking out as was done by the lower court.
In issue three, learned counsel argued that the order striking out the suit does not breach the rules of fair hearing as both parties were heard on the preliminary objection. He relied on Jang v INEC (2004) ALL FWLR (Pt. 200) 1545 at 1560 par. C – D; Musa Maikudi v. Abdullahi Musa (2004) ALL FWLR (Pt. 230) 1096 at 1110 pa. A-B. He urged the court to dismiss the appeal in its entirety and uphold the ruling of the court below. In his reply brief learned counsel for the respondent said the respondent’s summary of facts was inaccurate and misleading.
He said the case of Agbonmagbe Bank v. General Manager G. P. Ltd. (sic) & Anor. (Supra) and other cases relied on by the respondent are not on all fours with the instant case and are therefore not applicable. He urged the Court to do substantial justice. He relied on Order 47 rule 1 of the High Court rules supra. He urged the court to allow the appeal.
The respondent substantially adopted, in issues one and three the appellant’s two issues. However, the respondent’s issue 2 on substitutions does not flow from or relate to any of the appellants’ four grounds of appeal or a combination of any of them. The respondent did not cross-appeal and can therefore not raise any issue outside the appellants’ grounds of appeal. This is so because all issue for determination in an appeal not related to or based on one or more grounds of appeal is not only incompetent but is completely valueless and ought to be ignored by the appellate court. See Omo v. JSC Delta State (2000) 7 SC (Pt. 11) Pg. 1. A respondent who did not cross-appeal can adopt the appellant’s issues as framed, give them a slant in favour of his own side of the case or frame other issues which must necessarily flow from the appellant’s grounds of appeal. Respondent’s issue 2 on substitution is irrelevant in the determination of the appeal and is hereby struck out.
I will determine the appeal on the two issues framed by the appellants and adopted by the respondent. I will start with issue two on whether or not the order striking out the suit was a denial of the appellants’ right to a fair hearing. The twin pillars of the rules of natural justice are
(a) Audi alteram partem or hear the other side, and
(b) Nemo judex in causa sua or a person should not be a judge in his own cause. See Orugbo & Anor v Bulara Uwa & Ors (2002) 11 NSC QR 692. The appellants’ complaint is that they were not heard on the merit of the case before it was struck out on the preliminary objection of the respondent.
The preliminary objection is a threshold issue that must be disposed of before any further step could be taken in the suit. At this point the issue of fair hearing does not relate to the main suit but to the preliminary objection. S. 36(1) of the Constitution of the Federal Republic of Nigeria 1999 provides, “In the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be 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.” This is an adoption of the principle of audi alteram partem with emphasis on time and impartiality of the court or tribunal as reflected in its Constitution. No issue was raised as to hearing within a reasonable time or the Constitution and ipso facto the impartiality of the trial court. The denial of fair hearing claimed by the appellants cannot relate to the preliminary objection in which the appellants were not only given the opportunity to be heard but were actually heard. (See pages 10 – 11 of the records).
In the ruling on page 12 of the records, the trial Court said, “Mr. Ben for the defendant did not attempt to reply to their submission.
Rather, he was saying that the name of the defendant on record cannot be bad for the only reason that the word “limited” was omitted from its name, for that was what the case of Bank of Biroda v. Iyalabani Limited on which he dwelt on held. I tried without success to make Mr. Ben address the issue raised by Mr. Iwoke… “The fate of the suit depended on the ruling on the preliminary objection and learned counsel should not have shield away from the issue raised by the respondent. Having lost the battle on which the fate of his suit depended he cannot be heard to complain that the order striking out the suit was a denial of fair hearing. The Suit was not heard at all and the issue of fair hearing will not arise therefrom.
The mere fact that the Suit was struck out on the preliminary objection after both parties were heard cannot be a denial of fair hearing of the Suit. See Jang v INEC (supra) relied on by Counsel for the respondent. The issue is resolved against the appellants.
On issue one the general rule is that only natural persons, (human being) and artificial or juristic persons (bodies corporate) have the capacity to sue and/or to be sued, these being the entities vested with legal rights and obligations. However, non-corporate statutory bodies can also sue and be sued. See Ilomehs v. Local Bout Service Board (1965) NMLR 310.
Also a firm or partnership and an individual carrying on a business can sue and be sued under the registered business name.
See Order 11 rule 9 of the Uniform High Court Rules. RVL Motors is not a natural or a juristic or artificial person. It is not shown to be non-corporate body invested by law with power to sue and be sued. It is not shown to be a Firm or Partnership or an individual doing business under a registered name. It cannot sue or be sued. See Emecheta v. Oguer; (1998) 3 NWLR (Pt. 542) 456. In any case RVL Motors is not the defendant in the Suit that gave rise to this appeal. Rather, it is its Owner/Managing Director who is the defendant in the Suit. What is said above of the status of RVL Motors applies with equal force to its Owner/Managing Director. RVL Motors, if it exists as a business concern must have an Owner/Managing Director. The term “Owner/Managing Director” is descriptive of a named person. Here the description stands alone. It is the person described as Owner/Managing Director that should be the defendant in the Suit, not his description. In effect the appellants sued a description of the person they should have sued leaving out the person described. The facts of this case seem on all fours with facts of such cases as Njamanze v. Shell B. P. Port Harcourt (supra); Emecheta v. Ogueri (supra); Agbonmagbe Bank Ltd. v. General Manager G. B. Ollivant Ltd. (supra) cited and relied on by the respondent. The description of the owner of a business in the form of “Owner/Managing Director” does not constitute a juristic person. It is the one so described that can sue and be sued but herein the person described was neither named nor identified.
The appellants who want the court to adopt and apply English rules did not attempt to identify the rules they would want the court to apply.
Neither the inability of the appellants to identity and name the defendant, the fact that the defendant entered appearance and took steps in the matter, nor the fact that the Court below awarded costs in favour of the defendant can confer on the defendant a legal status it does not possess .
Issue one is also resolved against the appellants.
The appeal is devoid of merit. It is hereby dismissed and the order of the Court below striking out Suit No. HC/21/2002 for not being properly constituted is affirmed. However, it is ordered that parties bear their costs in the court below and in this court.
Other Citations: (2008)LCN/2770(CA)
