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Excerpt of Certified True Copies Of The Ruling On The Preliminary Objections

IN THE FEDERAL HIGH COURT OF NIGERIA

In The Port Harcourt Judicial Division

Holden At Port Harcourt

On Monday 23rd  May, 2016, 
             Before His Lordship 
HON. JUSTICE B.O. QUADRI (JUDGE)

Suit No: FHC/PH/CS/111/2015


BETWEEN:
                                           (PLAINTIFFS)
          1.      MR. AARON GEORGE CHITURU 
          2.      MR.ERIC ONYENUFORO
          3.      MR.OKAFOR JOSEPH
          4.      MR.MAGNUS AMADI
          5.      MR. OBI RAPHAEL
          6.      OGOLOMA DARLINTON BEKWELE

And others (For themselves and as representing NOUN Law Students)



AND

                                            (DEFENDANTS)

1.      THE COUNCIL OF LEGAL EDUCATION (CLE)

2.      NATIONAL UNIVERSITIES COMMISSION

3.      NATIONAL OPEN UNIVERSITY OF NIGERIA

4.      ATTORNEY GENERAL OF THE FEDERATION


RULING

By a motion on notice dated and filed 2nd November 2015, the 1st Defendant sought for an order striking out the name of the 1st Defendant from the suit on the following grounds:

(a). That this application places at issue the legal existence of the 1st Defendant.

(b). That the Hon. Court lacks jurisdiction to entertain the suit against the 1st Defendant; a non-entity and therefore the 1st Defendant should be struck out.

(c). That the Plaintiffs filed this suit naming the 1st Defendant as “Council Establishment and of Legal Education (otherwise called “Council of Legal Education”) as the 1st Defendant and obtained leave of this court to serve the 1st Defendant outside jurisdiction of this court in C/O of the Nigerian Law School, Bwari Abuja.

(d). That the Council of Legal Education is a body corporate with perpetual succession and common seal.

(e). That the Plaintiffs have not produced any evidence that the Council Establishment and of Legal Education is a legal entity.

This application was supported by a 10 paragraph affidavit and a written address.

The applicant raised a lone issue for determination: Whether the Applicant has made out a proper case for the grant of the reliefs sought on the motion paper?

Learned counsel for the Applicant contended that a party who puts up an appearance in a suit erroneously served on him is not precluded from raising objection that the Defendant sued is not a legal entity.

He relied on NJEMANZE v SHELL B.P PORT HARCOURT 1966 NLR at page 8.

He argued in the main that the 1st Defendant sued in this matter is not a proper party as it is a non-existent legal entity and thus not a juristic person.

Further more that the determination whether proper parties are before the court is a condition precedent to the exercise of the court’s jurisdiction. He relied on Order 9 Rule 14 (2) and Order 15 of the Court Rules and the case of ADMINISTRATOR/EXECUTOR OF THE ESTATE OF GENERAL SANI ABACHA v SAMUEL EKE SPIFF & 2 OTHERS 2009 7 NWLR PT. 1139 97 at 126 A-B.

While replying the Applicant on points of law, learned senior counsel to the Plaintiffs, Dr. A. Amuda-Kammike (SAN), learned silk argued per contra that the plaintiffs are not suing a non-juristic entity that the court can even without the Plaintiff’s application amend the process so that the justice of the case should be determined. He contends that there is a wrong name in the name the Plaintiffs sued. That the name of the 1st Defendant is in the said name sued.. He maintained that the preliminary objection should fail because the misspelt name even states the point of the name of the 1st Defendant. That once there is a motion to survive an action and there is one which kills the case. The one that saves the case should be granted.

The straight answer to this issue is if it could be shown that the title of a party to a suit, as expressed on the writ or the originating process, is a misnormer (i.e. the use of wrong name) and that the true intent of a party or an application for an amendment is the correction of the name of that party and not introduction of an entity, as a party for the first time, in an action, such an application should be granted  or if it is shown that there are reasonable grounds of excuse in naming the defendant wrongly and that the name being sued could not have given rise to any reasonable doubt as to which party is being sued. It is a case of misnormer. A case of misnormer will arise where for example; the Defendant a legal person whose name “AB” is sued in the name wrong name “CD” that is where a legal person is sued in the wrong name even on appeal, an amendment is proper.

See JEOBA v OWONIFARI 1974 10 SC at 157 or 1 ALL NLR pt 2 at page 89 at 95.

Barramian JSC at page 11 in the case of NJEMANZE v SHELL B.P PORT HARCOURT 1966 1 ALL NLR page 8, esplly at page 11.

On this note, the 1st Defendant’s preliminary objection seeking fails and is hereby dismissed.

The 2nd Defendant on its part equally filed a preliminary objection seeking for:

An order striking out the name of the 2nd Defendant/Applicant from the suit on following grounds:

(a). That the Plaintiffs originating summons discloses no reasonable cause of action against the 2nd Defendant.

(b). That the 2nd Defendant is improperly and wrongfully joined.

(c). That the court lacks jurisdiction to entertain the Plaintiff’s originating summons.

(d). That it is the interest of justice to strike out the name of the 2nd Defendant.

The preliminary objection was supported by a 7 paragraphed affidavit along with a written address.

Learned counsel formulated 4 issues for determination. They are:

1.      That there is no reasonable cause of action against the 2nd Defendant.

2.      That the court lacks jurisdiction to entertain the suit.

3.      That the 2nd Defendant ought not to have been made a party in this suit.

4.      Whether the name of the 2nd Defendant ought to be struck out. 

On 1st issues, learned counsel argued that no where in the Plaintiff’s supporting affidavit alleges any wrongful act against the 2nd Defendant. That the only reference to the 2nd Defendant is in the said affidavit is in paragraph 5 which has to do with the 2nd Defendant prescribing undergraduate courses for all universities. However, learned counsel admitted that relief 2 in the originating summons alleged that the 1st Defendant publication is supported by the 2nd, 3rd and 4th Defendants but that this allegation is not supported by any fact in the supporting affidavit. Based on the 1st issue above, learned counsel dovetailed into the 2nd issue and submitted that the court lacks jurisdiction.

On the 3rd issue whether the 2nd Defendant should be a party to the suit, having described who is a proper, or a necessary or a desirable party in a suit. Learned counsel argued that the 2nd Defendant does not have any interest in the subject matter of this suit, that the outcome of the suit will not affect the Defendant and that its presence is not necessary for the court to determine the issue in the suit.

Lastly, learned counsel urged the court to strike out the name of the 2nd Defendant because it has been improperly joined.

In his reply on points of law to the 2nd Defendant’s preliminary objection, learned SAN contended that the 2nd Defendant is a necessary party even under the Rules of the Court and even as stated in the Plaintiff’s processes, Learned silk argued that in an originating summons proceeding, the entire process including the affidavit, the reliefs sought form part of the whole process before the court. He referred to and further relied on Order 9 Rule 6 of the Court Rules.

The straight answer to all the issues raised and arguments of all parties in this objection is that the mere fact that the 2nd Defendant prescribes course for studies for all Nigerian Universities and the 2nd relief sought in the originating summons touches and concerns the 2nd Defendant. It stands to reason that whatever may be the outcome of this suit, it stands to reason that whatever may be the outcome of the suit, it will not affect the interest of the 2nd Defendant. Thereby the 2nd Defendant is a desirable party to this action.

 Secondly, strictly speaking in law, no cause or matter shall be defeated by reason of non-joinder or misjoinder of parties and the court may in every case or matter deal with controversy in issue as far as regards, rights and interest of parties actually before it. The effect of failure to join a party that ought to be joined or misjoinder of a party, will not render the proceedings a nullity on ground of lack of jurisdiction as it is being canvassed in this case.

See the cases of:

1.      OKOYE v NIG. CONSTRUCTION & FURNITURE COY. LTD 1991 6 NWLR PT 199 at 501.

2.      PEENOCK INVESTMENT LTD v HOTEL PRESIDENTIAL 1983 4 NCLR at 122.

3.      GREEN v GREEN 1987 3 NWLR PT 61 at480.

On this note and for the above reason earlier stated, the preliminary objection of the 2nd  Defendant also fail and same is equally dismissed.

 Lastly, the 4th Defendant also raised an objection that this suit is incompetent and thereby the court lacks jurisdiction. Its objection was predicated on the following grounds.

(a). Non-compliance with section 97 of the Sherriff and Civil Process Act cap 6 Laws of the Federation.

(b). That there is no cause of action against the 4th Respondent.

On the 1st issue, learned counsel contended that failure of the Plaintiffs to obtain leave renders this suit null and void.

He maintained that leave of the court to serve outside jurisdiction was not sought and obtained. 

On the 2nd issue, learned counsel argued that a perusal of all the processes filed by the Applicant reveals neither fact that point to any wrongful act by the 4th Respondent nor any allegation of any consequential damages. He stressed the point further that the 4th Respondent is a different personality and entity far away from the 1st, 2nd, and 3rd Respondents more particularly none of them is receiving instructions or being answerable to the 4th Respondent and as such no offence of the 1st, 2nd and 3rd Respondents shall befall the 4th Respondent.

In his reply on points of law to the 4th Respondent’s preliminary objection on the 1st issue, learned silk, Amuda-Kammike (SAN) submitted that section 97 was complied with by the Plaintiffs that they were granted leave to issue and serve the originating summons on the 4th Respondent.  

On the 2nd issue, learned counsel argued that this is an originating summons proceedings, the entire processes constitute pleadings and not ordinary writ of summons proceedings where statement of claim is required.

Learned silk argued that in an originating summons proceeding, the entire processes constitute pleadings which include the originating summons, the affidavit in support, the exhibit and written address.

Learned silk stated that by section 4 of the Legal Education (Consolidation etc) Act, Laws of the Federation 2004, the 4th Defendant name is mentioned and it has the unfettered discretion to control the 1st Defendant (Council of Legal Education).

That the 4th Defendant supports the decision of the 1st Defendant which is the subject matter of this suit. That perpetual injunction is being sought against the 4th Defendant not to carry out the decision of the 1st Defendant.

Lastly, that the factual situation in this case is that the 1st, 2nd, and 3rd are all agencies of the Federal Government and the 4th Defendant is the Chief Law officer of the Federal Government and all the said agents are established by the laws of Federation and they all can be sued in this regard.

 Lastly, learned silk contended that the affidavit in support of the preliminary objection offends section 115 (2) and (3) of the Evidence Act. He therefore urged the court to dismiss the preliminary objection.

On the 1st issue regarding the leave of the court to issue and serve the originating processes in this case. Leave of the Honourable court was sought and obtained on 4th June, 2015 via Motion Exparte dated 14th May, 2015 filed on 15th May, 2015.

So also on the 2nd issue whether there is any reasonable cause of action against the 4th Defendant. Flowing from all the factual situations stated in the questions raised for determination, the reliefs sought the fact that all other Defendants in this matter are agencies of the Federal Government and the 4th Defendant is the Chief Law Officer of the Federal government and all the claims and complaints are directly against the federal Government agencies. There is definitely a cause of action against the 4th Defendant and he is properly joined in this action. 

 See the case of : A.G of KANO STATE v ATTORNEY GENERAL OF THE FEDERATION 2007 NWLR PT 1029 where the Supreme court held inter alia:

“Attorney General of a State of Federation can be sued in any Civil claim or complaint against the Government of a State or federation as the case may be but this can only properly happen where the claim or complain is directly against the State of Federal Government”.

I have no doubt that this is a case where the claim or complain is directly against various federal Government agencies whereby the Attorney General of the Federation by legislation plays not only a nominal role but an important role. His presence in this suit is highly desirable.

Consequently, the preliminary objection of the 4th Defendant is also dismissed. Now as regards the motion of the plaintiffs for an order granting leave to the Plaintiffs to amend their originating summons and all other processes in this case on behalf of the Plaintiffs/Applicants in line with the amendment filed in this suit herein attached as EXH AI, A2 and A3 respectively.

While moving the application, learned senior counsel for the applicant in the main argued that in such situation as this, the practice of the court is to give priority to hearing such motion seeking to regularize a process and to bring out clearly the issues for trial.

More so, the mistakes of counsel ought not to be visited on the litigants who are desirous of prosecution their claims to the logical conclusion.

While opposing the application for amendment, learned counsel for the 1st Respondent took the view that this action as it pertains to the 1st defendant was commenced against a non-juristic personality and as such there is no legal foundation on which the suit is predicated as the 1st Defendant as sued is not competent to defend the action in court. He maintained that this is not a misnormer correctable by an amendment; that the Applicants have brought this application to overreach the 1st Defendant in the light of the 1st Defendant’s preliminary objection.

 Having clearly dismissed the objection of the 1st Defendant, based on the reasons earlier given in this ruling, I see no reason to depart from my reasoning and conclusions earlier given and I still hold on to same, I am of the clear view and so do I hold this application for amendment has merit based on my earlier reasons in this ruling on the 1st Defendant’s preliminary objection, same is hereby granted.

Consequently, it is hereby ordered as prayed. The Applicants are hereby granted leave to amend their originating summons and all other processes in this case filed in this suit on behalf of the Plaintiffs/Applicants in line with the memorandum of amendment filed in this suit attached here in as EXH A1 and also in line with the Proposed amended originating summons and reply on points of law filed and attached herein as EXH A2 and A3 respectively.

Also, the said proposed amended processes already filed at this court’s registry on 6th November 2015 are hereby deemed as being properly filed and served.

A.O Yusuf Esq. with E.A. Afam Esq. (For the Plaintiffs)

M.S. Agwu (For 1st Defendant) leading Tony Francis Esq. and L.Tony Francis (Mrs). And R.W. Nnwoke Esq.

Stamped, Signed and dated: 23/6/2016


 

     MOJEKWU v MOJEKWU (1997) 7 NWLR (Pt. 512) 283
      Female Child Has A Right To Take Part In Deceased Father’s Possession In Igboland
HELD: Nnewi customary law of Oli-ekpe was struck out under the repugnancy principle by unanimous judgment of the Enugu Division of the Court of Appeal. The basis of the decision was that the customary law in question which permits the son of the brother of the deceased person to inherit the property of the deceased to the exclusion of the deceased’s daughter was a clear case of discrimination and injustice, and hence inapplicable.
Niki Tobi JCA (as he then was) in his ruling said, “ we need not travel all the way to Beijing to know that the Nnewi ‘Oli-ekpe’ custom is repugnant to natural justice, equity and good conscience”.  


2.      UKEJE v UKEJE: SC.224/2004
      Female Child Has A Right To Take Part In Deceased Father’s Possession In Igboland


3.   AMECHI v INEC (2008) 5 NWLR (Pt. 1080) 227 and UGWU v ARARUME (2007) 12 NWLR (Pt.1048) 365
       Substitution Of Candidates By Political Parties After Primaries
HELD:  The Supreme Court upheld the candidature of a nominated candidate of a party following failure of the political parties to give ‘cogent’ and ‘verifiable’ reasons  as stipulated in Sec. 33 of the Electoral Act 2010 as amended, for substitution after the deadline as encapsulated in Section 36 of the EA supra.



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