Hector Osondu & Ors V. Mr. Benneth Ngonadi (2016)
LawGlobal-Hub Lead Judgment Report
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
This is an interlocutory appeal against the decision of the Anambra State High Court sitting at Nnewi (hereinafter referred to as the lower Court), delivered by Hon. Justice M. I. Onochie, J., on the 25th day of April, 2012. The substantive suit was instituted by the plaintiff/respondent against the appellants/defendants on the basis of an alleged defamation of his name, character and reputation. Pleadings were filed and exchanged between the parties. However, the appellants/defendants brought a motion on notice filed on the 7th day of February, 2012, wherein they sought for the following reliefs:
“1. An order striking out this suit for being incompetent.
2. And for such Order or further Orders as the Honourable Court may deem fit to make in the circumstances.”
The said motion on notice was brought on the following grounds:
“1. Failure to join the said Newspaper that published the purported defamatory words.
2. Mis-joinder of the Incorporated Trustees of Roman Catholic Church Nnewi.”
The motion was accompanied by an affidavit,
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further affidavit and written addresses in support thereof. The plaintiff/respondent on his own part filed a counter affidavit and written address in opposition to the said application. At the end of it all, the learned trial judge upon the giving of due consideration to all the processes placed before him, refused the grant of and dismissed the said application.
The defendants/appellants being dissatisfied with the decision of the learned trial judge, appealed against the same. They filed their joint notice of appeal to this Court. The grounds of appeal without their particulars are as follows:
“GROUND ONE:
The learned trial judge with respect erred in law when he held that the newspaper itself is not a juristic person and cannot be sued.”
“GROUND TWO:
The learned trial judge with respect misdirected himself in law when he held that in an action for libel published in Newspaper the proper parties to sue are:
(a) The publishers of the newspaper and/or reporter and the person who gave information which led to the publication.
(b) The editor of the Newspaper.”
“GROUND THREE:
The learned trial judge misdirected
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himself in law when he failed to strike out the name of the 2nd Defendant from the suit in reliance to Order 13 Rule 16 (1), (2) and (3) of Anambra State Civil Procedure Rules, 2006.”
In accordance and compliance with the applicable rules of this Court, the parties filed and duly exchange their respective briefs of argument. The appellants’ brief of argument was prepared by Clems Ezika, Esq. The said brief was filed on the 12th day of October, 2012. The appellants’ counsel in the said appellant’s brief of argument formulated two (2) issues for determination of this appeal. The issues are as follows:-
“(A) What is the effect of non joinder or misjoinder of necessary parties in this suit.
(B) What is the legal effect of suing a non juristic person in this suit.”
The respondent’s brief of argument on the other hand was prepared by Chief G. Oseloka Osuigwe. The said brief was filed on the 24th day of October, 2012. The learned counsel to the respondent in the respondent’s brief formulated three (3) issues for the determination of this appeal. The issues are as follows:
“1. Whether the Christian Outlook is a juristic person.
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2. Whether the appellants established a case of non joinder of necessary parties in this suit.
3. Whether non joinder of necessary parties in this suit is fatal to the respondent’s case.”
After due consideration of the processes filed in the instant appeal matter and as contained in the printed record placed before us, grounds of appeal, issues formulated from the grounds of appeal by the parties and arguments in support, I am of the firm view point that the pertinent issues that call for determination are:
1. Whether the appellants have established a case of non juristic personality of the 2nd appellant.
2. Whether the suit can be sustained without the 2nd appellant and “Christian outlook”
ARGUMENT ON ISSUES
Issue 1 (Appellants’ Issue 2 and Respondent’s Issue 3)
The learned counsel to the appellants submitted that there is nothing like Incorporated Trustees of Catholic Diocese of Nnewi. He maintained further that the above named entity is not registered, therefore, not a juristic personality capable of being sued. It was further submitted that the addition of the above named entity as one of the parties is not a misnomer
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and cannot be substituted or the writ amended to replace it with a juristic personality. He therefore urged this Court to strike out the name of the above named entity from the suit. He relied on the case of Emecheta v. Ogueri (1996) 5 NWLR (Pt. 477) 227.
Learned appellant’s counsel further contended that the purported admission of the 2nd appellant (which is the party claiming to be a non-juristic personality) in Paragraph 4 of the appellant’s statement of defence does not ipso facto imply that the said 2nd appellant is admitting liability or made it a juristic party. Relying on the provisions of Order 16 (2) of the High Court of Anambra State Civil Procedure Rules, 2006, he submitted that the proper order the lower Court is empowered to make is to strike out the name of the said 2nd appellant and replace the same with the proper party. He therefore urged this Court to resolve the issue in favour of the appellants and allow the appeal.
The learned counsel to the respondent in response contended that the appellants clearly admitted in Paragraph 2 of their statement of defence that the 2nd appellant is a “body corporate” only to turn round to
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bring a motion alleging and or contending the reverse of their initial standpoint. In addition, the learned counsel submitted that the lower Court’s finding that the said 2nd appellant is a juristic personality has not been impeached or shown to be perverse, thus, it is ridiculous of the appellants to argue that the said Court was wrong not to have struck out the name of the 2nd appellant. Also, it was argued that the parties will be deemed to have joined issues on the corporate personality of the 2nd appellant, thus, it has become a matter which requires that evidence should be adduced at the hearing, and not a matter that would be considered on the basis of a preliminary objection or application for striking out. He thereby urged this Court to resolve this issue in favour of the respondent.
It is trite law that the burden lies on the party who will lose or desires the Court to give judgment or make finding in his favour as to any legal right or liability which depended largely on the existence of facts which he asserts. See Section 131 (1) and (2) of the Evidence Act, 2011. This burden of proof is required to be discharged on the preponderance of
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evidence. See Onwuka v. Omogui (1992) NWLR (Pt. 230) 393; (1992) LPELR-2719. In the instant case, it is beyond dispute that the respondent would be on the ‘losing’ side if the corporate personality of the 2nd appellant was not successfully established. Thus, he has the burden to establish by adducing evidence that the said 2nd appellant is a corporate entity. This, he is required to do by tendering the certificate of incorporation of the said 2nd appellant, duly obtained from the Corporate Affairs Commission; but he has failed to so do. It is now well settled, that where an improper party (especially a non juristic person) has been sued or sued, the name of the said party is liable to be struck out. That is, where a non juristic party has been established to be sued as a defendant except where an amendment is properly made, the said defendant’s name would be struck out of the suit; but where the said non juristic party is the plaintiff the suit would be struck out. See the cases of Zain Nigeria Limited v. Ilorin (2012) LPELR-9249 and Anemene & Anor. v. Obianyido & Ors. (2006) LPELR-11635.
?Also, the fact that the appellants admitted some
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paragraphs of the statement of claim is of no consequence, if it was later established or proved that the said 2nd appellant is a non juristic parry. This position has been reiterated earlier by this Court in the case of Zain Nigeria Limited v. Ilorin (2012) LPELR-9249, wherein His Noble Lordship, Ignatius Igwe Agube, J.C.A., while relying on the decisions in the cases of Ebere v. Anyankwu (2006) ALL FWLR (Pt. 315) 131. Egbuziem v. Egbuziem (2005) 4 NWLR (Pt. 916) 488; Santa Fe Drilling (Nig.) Ltd. v. Awala (1999) 6 NWLR (Pt. 608) 623; and Foko v. Foko (1968) NMLR 331; stated as follows:
“Let it be added herein that the fact that the appellant had received and reacted to the processes filed by the respondent to the extent of admitting some aspects of the respondent’s claim as in Paragraph 5 of the appellant’s statement of defence was/is immaterial …”
In view of the foregone, this issue is hereby resolved in favour of the appellants.
ISSUE 2
The learned counsel to the appellants submitted that in an action for defamation, the newspaper that made the publication is a statutory respondent, hence it is a necessary party which ought to be
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made a party to the suit. Thus, he argued that the failure of the respondent to sue “the Christian Out-look” as one of the parties is fatal to his case. He referred us to the case of Maikori v. Lere (1992) 3 NWLR (Pt. 231) 525 @ 527; Anya v. Iyayi (1988) 3 NWLR (Pt. 82) 359; and Oluwuyi v. Adeyemi (1990) 4 NWLR (Pt. 147); and Concord Press Ltd. v. Obijo (1990) 7 NWLR (Pt. 162) 319; among others. Also, the learned counsel submitted that where a wrong defendant is sued, his name should be struck out and any allegation made against him will equally be struck out. He referred us to the case of Amuda v. Ajogbe (1995) 7 NWLR (Pt. 406) 170.
Learned appellants’ counsel further submitted, that if an action is improperly constituted because those who should have been joined parties were not made and the case went to trial, an appellate Court could make an order striking out the matter, if it is of the opinion that retrial would necessitate extensive amendment of the pleadings. He relied on the case of J. S. Ekpere & Ors. v. Odaka Aforije & Ors. (1972) 1 NWLR (Pt. 100) 678. The learned counsel further argued that if the newspaper/publisher of the alleged
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defamatory words is not included as one of the parties, their right to fair hearing would be grossly breached and any order made as a result thereof would not be binding on the said party that has been omitted from the suit. He referred us to the case of Olawuyi v. Adeyemi (1990) 4 NWLR (Pt. 147) 748 among others.
The learned counsel to the respondent in reply contended that there is no evidence on record to establish the fact that “the Christian Outlook” is a juristic person capable of suing and being sued, thus, the said Christian Outlook cannot be held to be a necessary party. He further canvassed the argument that a novel is quite different from its author, so is a publication distinct from its publisher. Thus, where the 2nd appellant has been sued as the publisher, the parties could be held to have been sued. In addition, the learned counsel argued that no issue was formulated from ground one of the grounds of appeal, thus the ground is deemed abandoned. Consequently, he submitted that the lower Court has found that “the Christian Outlook” is not a juristic person, and the said finding has not been challenged. Thus, the said finding of the lower
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Court is deemed admitted. The learned counsel continued with the submission that apart from the fact that the appellants failed to establish their claim of non joinder of necessary party; non joinder of a person is not fatal to a case. He referred us to the provisions of Order 13 Rule 16 (1) (2) and (3) of the High Court (Civil Procedure) Rules of Anambra State, 2006. He further submitted that even in clear cases of non joinder of necessary party, it is an irregularity and does not affect the competence or jurisdiction of the Court. And that it is only where the non joinder leads to unfairness, that the judgment may be set aside on appeal. He relied on the case of Udo v. C.R.S.N.C. & Anor. (2002) FWLR (Pt. 104) 665 @ 703. He therefore urged this Court to resolve this issue in favour of the respondent.
The law has long been settled that where an action is properly constituted with a plaintiff possessing the legal capacity to bring the action, a defendant with a capacity to defend, a claim with a cause of action against the defendant, and the action itself having satisfied all preconditions necessary for instituting the action; the fact that a
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necessary party to the action has not been joined is not fatal to the action and will not render the action a nullity. Put differently, failure to join a necessary party is a procedural irregularity which does not affect the competence or jurisdiction of the Court to entertain the matter before it. But this is just a general rule, the exception to this rule is where the irregularity leads to unfairness or injustice to the other party(s), the judgment or the action may be set aside or struck out, respectively. See the cases of Ayorinde v. Oni (2000) 3 NWLR (Pt. 649) 348; Agbekoni v. Kareem (2007) LPELR-8753.
I have earlier in this judgment found that the 2nd appellant is not a juristic person and not capable of being sued by the respondent, thus, his name should be accordingly struck out. I have no reason herein to upset my finding. Consequently, the only surviving defendants in this case are the 1st and 3rd appellants who the respondent by his statement of claim described to be only Editors of the supposed 2nd appellant. The pertinent question that needs answer is: Whether it would be just or fair to sue the said surviving parties who are mere
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employees of the supposed 2nd appellant, who has been struck out? The answer to this question is surely in NEGATIVE.
There is no doubt that the publisher of a newspaper who allegedly published defamatory words is a necessary party in respect of whose presence is ultimately required in order to effectively resolve or settled the dispute before the Court. Also, a trial Court cannot be held to have been competently well constituted to determine a suit bordering on libel without the presence of the alleged publisher of the libelous publication. In the instant case, there was no such publisher on record, the only surviving parties to the suit were merely employees of the said publisher.
It would be grossly unfair and/or occasion great injustice if the publisher/newspaper that published the alleged libelous publication is left out from facing whatever be the consequences of its action, while prosecuting only its employees. Also, I agree with the learned counsel to the appellants that, whatever be the outcome of this suit, will in one way or the other engender ripple effects that will definitely affect the said publisher/newspaper. Thus, it would be
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in gross breach of the entrenched and enshrined right to fair hearing if such an essential important and or necessary party is completely left out in this suit. It is therefore my firm view point that this suit cannot be sustained in the absence of the publisher who made the publication in question.
Proper and necessary parties were not brought before the lower Court. Thus, this issue is hereby resolved in favour of the appellants.
Having resolved the issues formulated for the determination of this appeal in the manner stated above, it is hereby my firm view point that this appeal is meritorious and should be allowed. It is accordingly allowed. The ruling of the lower Court which was delivered on the 25th day of April, 2012 in Suit No. HN/15/2011 is hereby set aside. In its place, the appellants’ application brought by way of motion on notice, filed on the 17th day of February, 2012 is hereby granted. Suit No. HN/15/2011 is thereby struck out. No order as to costs.
Other Citations: (2016)LCN/8718(CA)
