Societal Generale Fondation Nig. Ltd. V. Emmol Nigeria Enterprises (2006)
LawGlobal-Hub Lead Judgment Report
NWALI SYLVESTER NGWUTA, J.C.A.
This is an appeal against the ruling of the learned trial Judge, Edem J. of the High Court of Justice, Akamkpa Judicial Division, Cross River State, on a preliminary objection.
The Respondent herein, as plaintiff in the Court below, sued the appellant and one other as defendants claiming damages for breach of contract. Upon service of the writ of summons on them the defendants entered appearance under protest. In pursuance of their protest the defendants filed a notice of preliminary objections on four grounds. (See pages 60 to 62 of the records) At the hearing of the preliminary objections learned counsel for the defendants withdraw prayers 1 to 3 and grounds 1 and 2 of his notice of preliminary objection, leaving the last two reliefs and last two grounds. The two reliefs are:
- An order of the Court striking out the 2nd defendant as party in this suit for want of privity of contract.
- An order of the Court striking out the plaintiff’s name as party in this suit for the plaintiff has no capacity to sue.
The two reliefs were predication on the following grounds:
- The second defendant did not enter into contract with the plaintiff vide the contract Agreement dated 16th day of March 2005 between the plaintiff and the first defendant.
- The plaintiff is not a Limited Liability Company registered under the Companies and Allied Matters Act 1990 therefore it lacks authority to sue the defendant.
In his ruling on the issues argued by learned counsel for the parties the learned trial Judge struck out the name of the 2nd defendant but denied the order to strike out the name of the plaintiff and ipso facto strike out the suit.
Aggrieved by the ruling the appellant appealed to the Court on the two grounds reproduced hereunder, shorn of their particulars:
“1. The learned trial Judge erred in law when he held that the plaintiff has the right to sue as a registered business name.
- The learned trial Judge misdirected himself in law when he ruled that it is the Defendant’s obligation in law to have applied to the Court for the statement of the names and addresses of the plaintiff in compliance with Order 11 Rule 9 of High Court Civil Procedure Rules.”
Pursuant to the rules and practice of the Court the parties herein, through their respective learned counsel, filed and exchanged briefs of argument.
In his brief learned counsel for the appellant distilled two issues, one from each ground of appeal, for determination. The issues are:
“1. Whether the plaintiff had the capacity to sue as he did.
- Whether the High Court was right in holding that Order 11 Rules 9 and 26 of the High Court of Cross River State 1987 applied in his circumstance.”
In his own brief of argument learned counsel, for the Respondent identified one issue from the appellant’s two grounds of appeal. The lone issue is:
“Whether, having regard to the provisions of Order 11 rules 9 and 26 of the High Court of Cross-River State (Civil Procedure) Rules 1987, the learned trial Judge was right in holding that the respondent can sue in its registered name?”
At the hearing of the appeal learned counsel for the appellant adopted and relied on his brief of argument and urged the Court to allow the appeal. Learned counsel for the Respondent also adopted and relied on his own brief and urged the Court to dismiss the appeal and affirm the decision of the lower court.
Arguing issue one in his brief of argument, learned counsel for the appellant referred to paragraph 1 of the Statement of claim at page 4 of the record and submitted that the respondent sued as a business enterprise and not as a limited liability company. He referred to Lion of Africa Insurance Co. Ltd. vs. Esan (1999) 8 NWLR (Pt.614) 197 at 701; Ataguba and Company vs. Gura Nig. Ltd. (2005) 19 WRN 1 in support of his argument that the Respondent lacks the legal capacity to sue or be sued in its name. He argued that if any party to a suit lacks the capacity to sue or be sued the Court would have no jurisdiction to entertain the matter and any proceeding therein would be a nullity. He referred to Rossek vs ACB Ltd. (1993) 8 NWLR (pt. 312) at 382 and Madukolu vs Nkemdilim (2001) 46 WRN 1. Learned counsel conceded however that Some non-legal entities can sue and be sued eo nominee.
In issue two learned counsel said there are exceptions to the general rule in Order 11 rule 9 of the High Court (Civil Procedure) Rules. He conceded that-
“Emmol Nigeria ENTERPRISES” though not a juristic person, could sue eo nominee” but argued that there is no evidence that the entity is made up of “more than one partner.”
He added that partnership or firm pre-supposes two or more persons who make it up. He argued that the Respondent carrying on a one-man business under the name of a firm can sue not in the name of the firm but in his personal name in respect of the transactions of the firm. He referred to M.C.C. Vs Azubuike (1990) 5SC NJ 93. He referred to the ruling of the Lower Court that under Order 11 r. 9,of the High Court Rules the appellant was obliged to apply to the court for names and addresses of the partners and argued that the appellant had no such obligation as the claim shows that the respondent who sued as plaintiff is not “a partnership firm”. He relied on Aguda, Principles of Practice and Procedure in Civil Actions (1976) Chapter 4 pages 31. In, conclusion learned counsel for the appellant, urged the Court to allow the appeal and strike out the name of the plaintiff and the entire suit.
In his own argument in his brief learned counsel for the Respondent argued that the learned trial judge was right when His Lordship held that the Supreme Court in MCC vs. Azubuike (supra) and the learned author “Aguda” did not interpret the provisions of the High Court Rules of Cross River State of 1987. He said the authorities cited by the appellant do not relate to Order 11 rules 9 and 26 of the High Court Rules (supra) which is applicable to the case at hand… He argued that under the said order and rules the Respondent, a business enterprise registered in Nigeria with its registered office at No. 128 Old Odukpani Road, Calabar can sue and be sued in its registered business name. Learned counsel referred to the Supreme Court’s Interpretation of Order 4 Rule 6 of the Federal High Court (Civil Procedure) Rules 1976, Order 13 Rule 42 of the Lagos State High Court (Civil Procedure) Rules 1972 and Order 14 Rule 42 of the High Court of Lagos (Civil Procedure) Rules 1974 (which are in pari materiai with Order 11 Rules 9 and 26 of the High Court Procedure) Rules of Cross River State 1987) in Iyke Medical Merchandise vs Pfizer Inc. (2001) FWLR (pt. 53) 62 wherein the Supreme per Uwaifo, JSC said:
“As far as applicable, the rules relating to partnership shall apply to business name as if it were a firm. That is why I said it was important to note, in the case of partnership, that there is no necessity of ascertaining the names of the individual partners for purposes of suing the firm. The same applies to business name.”
He urged the Court to adopt and rely on the Supreme Court’s interpretation of the rules in the case. On the juristic personality of a Company registered in business names register to sue or be sued eo nominee counsel referred to and relied on Yusuff vs. Adewuyi Brothers and Co. (1991) 7 NWLR (Pt.201) 39, ACB Plc. vs. Emostrade Ltd. (1998) 2 NWRL (Pt.536) 19 at 35. Counsel submitted that it is immaterial whether or not the respondent duly registered under part C of the Companies and Allied Matters Act, Cap. 59 Laws of the Federation of Nigeria 1990 is made up of one or two or more persons. Counsel in his conclusion urged the Court to dismiss the appeal with heavy costs and to affirm the decision of the learned trial judge.
The lone issue framed by the Respondent is subsumed in the appellant’s two issues. I will therefore determine the appeal on the two issues. Both the learned counsel for the parties rely on the provisions of Order 11 Rules 9 and 26 of the High Court of Cross River State (Civil Procedure) Rules 1987 hereunder reproduced:
Order 11 rule 9:
“Any two or more persons claiming or alleged to be liable as partners may sue or be sued in the name of the firm in which they were partners when the cause of action arose, and any party to an action may in such case apply to the Court for a statement of the names and addresses of the persons who were, when the cause of action arose, partners in any such firm, to be furnished in such manner, and verified on Oath or otherwise, as the Court direct.”
Rule 26:
“Any person carrying on business within the jurisdiction in a name or style other than his or her own name may be sued in such name or style as if it were a firm name; and, so far as the nature of the case will permit, all provisions, relating to proceedings against firms shall apply.”
Each of the two rules reproduced above deals with a different factual situation.
In issue one the position of the appellant appears unsettled. He raised the issue as to whether the plaintiff (i.e. respondent herein) has the legal capacity to sue. He appeared to have resolved the issue in favour of the legal capacity of the respondent to sue in its name. See, page 5 paragraph 5.3 of the appellant’s brief where it was stated: “We submit with respect, that “Emmol Nigeria Enterprises” is not a juristic person but could sue eo nomine by virtue of Order 11 rule 9, of the Cross River State (Civil Procedure) Rules 1987″, Learned counsel earlier argued that there are exceptions to provision of order 11 rule 26 (supra) but he did not state, nor bring his case within, the exceptions.
The phrases “any person” “his or her own name” in Order 11 rule 26 obliviously refer to one person carrying on a business in a name and style other than his or her name. When such a person does business within the jurisdiction of the High Court of Cross River State he or she can sue and be sued in his or her business name.
God created the man (including the woman) but for the purpose of legal capacity the law of Cross River State created the person in Order 11 rule 26. I agree that the authorities relied on by the appellant did not interpret the provision of Ord. 11 of the Cross River State High Court Rules as it was not an issue in any of the cases. The said authorities cannot avail the appellant. It is my view that the respondent Emmol Nigeria Enterpreises which “is a business enterprise registered in Nigeria…” with its registered office at No. 128 Old Odukpani Road, Calabar, is vested with the legal capacity to sue and be sued eo nominee in the High Court of Cross River State by Ord. 11 r. 26 (supra) see paragraph 1 of the statement of claim at page 4 of the records.
I resolve issue one, which was already conceded by the appellant in its brief against the appellant.
In issue 2 it is pertinent that Order 11 Rule 9 deals with claim by or against any two or more persons alleged to be partners who may sue or be sued in the named of the firm in which they were partners at the material time. It has nothing to do with a person carrying on business in rule 26 of the Order. The provisions of the two rules of the Order are mutually excusive. The issue of the application of Ord. 11 r. 26 has been determined in issue one where in fact its application was conceded by the appellant. Rule 9 of the Order is not applicable to the proceedings. However, the appellant invoked it in its rejoinder when he said:
“We submit Order 11 rule 9 is unavailable to the plaintiff. The condition precedent to Order 11 rule 9 had not been fulfilled.”
(See page 66 of the records of the Court below). The condition precedent to Order 11 rule 9 which the appellant’s counsel argued was not met is the statement of the names and addresses of the partners. As the Lower Court held, the condition is open to any party. In other words, any party to the proceedings can demand for the statement of the names and addresses of the partners. I understand the ruling of the Court to be that if the appellant wanted a statement of the name and addresses mentioned in the Order it has a duty to make the proper application. The Court below never decided that the respondent was “two or more persons” referred to in order 11 rule 9 supra.
This appeal is completely devoid of merit and it is hereby dismissed as such. Appellant is to pay costs fixed at N10,000.00 to the Respondent.
Other Citations: (2006)LCN/2105(CA)
