(2016) LPELR-40491(CA)

Transcription

1 ACCESS BANK v. AGEGE LOCAL GOVT & ANOR CITATION: SIDI DAUDA BAGE YARGATA BYENCHIT NIMPAR In the Court of Appeal In the Lagos Judicial Division Holden at Lagos ON TUESDAY, 17TH MAY, 2016 Suit No: CA/L/649/2014 Before Their Lordships: ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal ACCESS BANK PLC - Appellant(s) And 1. AGEGE LOCAL GOVERNMENT 2. CHAIRMAN, AGEGE LOCAL GOVERNMENT RATIO DECIDENDI - Respondent(s)

2 1. ACTION - PARTY(IES) TO AN ACTION: Who is a party to a proceedings "The Appellant's description of who can be parties while relying on the case of THE ADMINISTRATORS/ EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA (DECEASED) V EKE-SPIFF (2009) 7 NWLR (Pt. 1139) 97 at 136 is apt and self-explanatory. It is hereby reproduced below: "As a general rule, only natural persons, that is to say human beings and juristic or artificial persons such as bodies corporate are competent to sue and be sued before any law Court. In other words no action can be brought by or against any party other than a natural person or persons unless such a party has been given by the statute expressly or impliedly or by common law either a legal personality under the name by which it is sued or it sued or a right to sue by that name, se FAWEHINMI V NIGERIA BAR ASSOCIATION (NO. 2) (1989) 2 NWLR (PT.105) 558 AT 595. This is the law because the suit is in essence, the determination of legal rights and obligations in any given situation. Therefore only such natural/juristic persons in whom the rights and obligations can be vested are capable of being proper parties to law suits before Courts of law. Following this general rule, where either of the parties is not a legal person capable of exercising legal rights and obligations under the law, the other party may raise this fact as a preliminary objection which if upheld, normally leads in the action being struck out. See SHITTU V LIGALI (1941) 16 NLR 21; OLU OF WARRI V ESI AND ANOR (1958) 3 FSC 94; AGBONMAGBE BANK V GENERAL MANAGER G. B OLIVANT LTD AND ANOR (1961) ALL NLR 116; (1961) 2 5CNLR 317" Per NIMPAR, J.C.A. (Pp , Paras. F-B) - read in context 2. ACTION - CAPACITY TO SUE AND BE SUED: Whether a non-juristic person can sue and be sued "Simply put, a non - juristic person cannot sue nor be sued. It is also agreed that the naming of a non juristic person as a claimant in a suit makes the suit outrightly incompetent. See the case of SHELL PETROLEUM DEVELOPMENT COMPANY & ANOR V DANIEL PESSU (2014) LPELR (CA) where the Court held thus: "The law is that for a suit to be competent for adjudication by a Court of law, there must be at least a competent plaintiff and a competent defendant, in the sense that both are juristic persons who can sue and be sued. Where the existing plaintiff or defendant lacks competence it will render the action incompetent thereby robbing the Court of the requisite jurisdiction to entertain the action". Per NIMPAR, J.C.A. (Pp , Paras. F-C) - read in context 3. ACTION - CAPACITY TO SUE AND BE SUED: Whether a juridical person has the capacity to sue and be sued "However, let me say that where a body or office is created by statute, the right to sue or be sued can be inferred notwithstanding the absence of an express provision in this regard. See the case of CHAIRMAN EFCC & ANOR V. LITTLECHILD & ANOR (2015) LPELR (CA)."Per NIMPAR, J.C.A. (P. 29, Paras. D-E) - read in context 4. COMPANY LAW - BUSINESS NAME: Position of the law as regards restriction on the registration of business names "It is trite that there is a restriction on registration of business names when such include National, Government, Municipal, State, Federal or any word which imports or suggest that the business enjoys the patronage of the Federal, State or Local Government, see Section 579 of the Company and Allied Matters Act. It is settled that no human being answers the name Local Government nor any artificial entity registered under Company and Allied Matters Act (CAMA)." Per NIMPAR, J.C.A. (P. 25, Paras. C-E) - read in context

3 5. COURT - JURISDICTION: Conditions that must be satisfied before a Court is competent to exercise its jurisdiction in respect of any matter "Jurisdiction of the Court is a threshold matter as a Court must possess jurisdiction before it can determine any matter. Jurisdiction is activated when certain conditions are present. One of the constituents of jurisdiction is competent parties, see the case of C.B.N. V. S.A.P. (NIG.) LTD. (2005) 3 NWLR (PT.911)152 where the Court held as follows: "In the case of MADUKOLU V. NKEMDILIM (SUPRA), it has been stated that for a Court to have jurisdiction, the following conditions must be present: (i) the proper parties are before the Court; (ii) the subject matter falls within the jurisdiction of the Court (iii) the composition of the Court as to members and qualifications, and (iv) the suit is commenced by due process of law and upon fulfillment of any conditions precedent to assumption of jurisdiction." Per NIMPAR, J.C.A. (P. 13, Paras. A-D) - read in context 6. COURT - DUTY OF COURT: Duty of Court when granting an application for amendment of Pleadings "it must be settled that a Court has wide latitude in exercising discretion in granting an application for amendments generally. Amendments are allowed even at appellate stages of any proceeding, so it is within the jurisdiction of a Court to allow amendments. However, that latitude is circumscribed by the nature of the amendment sought.per NIMPAR, J.C.A. (P. 21, Paras. A-C) - read in context 7. COURT - COURT PROCEEDINGS: Whether the Court is limited to authorities cited by counsel in the determination of a case "... A Court is not limited to the case cited by counsel in determining matters before the Court. The Court can rely on other sources of legal materials such as those derived from personal research and publications to support the Court in determining issues. There is no restriction on the Court to limit itself to only cases cited by parties. The trial judge was on solid ground and should be commended. The important thing is for the Court to apply legal authorities appropriately in the determination of disputes between parties. See the case of URUGBO v UNA (2002) 9-10 S.C. 61 wherein the Supreme Court held thus: "A Court of law has no legal duty to confine itself only to authorities cited by the parties. It can, in an effort to improve its judgment, rely on authorities not cited by the parties. Historical books or whatever books are authorities and the Koko District Customary Court was free to make use of them in its judgment. That per se is not breach of fair hearing; not even the twin pillars of natural justice." Also in EJIMOFOR & ORS V NIGERIAN TELECOMMUNICATIONS LTD & ORS (2006) LPELR (CA) the learned jurist, NZEAKO, JCA (Blessed Memory) added the following phrase: "There cannot be injustice to the parties in a Court referring to legal authorities which strengthen, illuminate or explain and justify its decision."per NIMPAR, J.C.A. (Pp , Paras. D-E) - read in context

4 8. PRACTICE AND PROCEDURE - MISNOMER: What is a misnomer; when a misnomer is said to have occurred "Now, a misnomer has been defined by Dictionary.com as an error in naming a person or a thing. Misnomer has also been defined inseveral legal authorities. One of such authorities is the case of MTN NIGERIA COMMUNICATIONS LTD V MR. AKINYEMI ALUKO & ANOR (2013) LPELR (CA) which held as follows: "Now, where there is a mistake with regard to the name of a litigant in an action, such a mistake is described as a misnomer. It simply means a mis-description or wrong use of a name. It is a mistake as to the name and not as to the identity of the particular party to the litigation." This Court in the case of SO SAFE TABLE WATER TECHNOLOGIES LIMITED V OBAFUNMILAYO AYINOLUWA & ANOR (2013) LPELR - CA/L/176/2007 defined misnomer as follows: "In NJOKU V U.A.C (SUPRA), where the Court referred to the definition of the word 'misnomer' thus: "a misnomer as defined by Mozley and Whitely's Dictionary 10th Edition P.295 which is what Appellant Counsel submits is a mistake in name. Incorrect name is given to a person in a writ; it occurs when a mistake as to the name of a person who sued or was sued or when an action is brought by or against the wrong name of a person. The correct person in other words is brought to Court under a wrong name. Where there is an error only as to the correct name of a party to a suit an amendment sought in the proper manner may be allowed to rectify the error. It is usual to allow amendment in such a context... Indeed that is the import of the decision in NKWOCHA V FEDERAL UNIVERSITY OF TECHNOLOGY SUPRA in which my learned brother MUNTAKA COOMASIE stated thus: 'Corporate personality of the Respondent is not in doubt. It is therefore a legal person. It can sue and be sued in its corporate name as a juristic 18 person i.e. artificial person. Consequently, if such a name has been identified, that name shall be the name of the proposed defendant or plaintiff. However the law allows some room for human error. Where a limb or part of the name of the defendant is inadvertently omitted and the purported defendant is not misled, then the Court can always allow the plaintiff in a proper manner to amend what the Court think is a misnomer." See also MAERSK LINE V ADDIDE INVESTMENT LTD (2002) 11 NWLR (Pt. 778) 317 at The Supreme Court also set down how to determine a misnomer thus: "A crucial factor in determining whether what happened was a misnomer or not is whether there is an existing entity which has been given a wrong name such wrong name not being the name of another entity" Per MUKHTAR JSC in EMESPO J. CONTINENTAL LTD V CORONA SHIFAH - RTSGELLSCHAFT & ORS (2006) 5 S.C. (PT. 1) See also the standard set by this Court in the case of SO SAFE TABLE WATER (SUPRA) thus: "Whether an error in the name sought to be amended is a misnomer or not is a question of fad and depends on the attitude of a reasonable man confronted with the 19 writ in the circumstances of the case."per NIMPAR, J.C.A. (Pp , Paras. C-A) - read in context

5 9. PRACTICE AND PROCEDURE - MISNOMER: Nature of a misnomer that will vitiate a proceeding "Furthermore, for there to be a misnomer, there must be a mis - description of an existing entity. Where there are two entities which the name can be ascribed to, a mistake in commencing an action in the name of one rather than the other would not be a misnomer. In effect therefore, there must be an entity one can point at as the intended party, one that is identifiable, describable and one which is unequivocal in existence." Per NIMPAR, J.C.A. (Pp , Paras. E-A) - read in context

6 YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the consolidated ruling of the Lagos State High Court delivered by HON. JUSTICE OBADINA J, on the 8th day of April, 2014 dismissing the Appellant's Notice of Preliminary Objection challenging the jurisdiction of the trial Court to entertain the suit and granting the Respondent's motion for the amendment of their originating processes dated 23rd December, Dissatisfied with the ruling, the Appellant filed a Notice of Appeal dated 22nd April, 2014 setting out 3 grounds of appeal. Brief background facts are that the Respondents instituted a suit by way of writ of summons and other originating processes against the Appellant in the name of Agege Local Government and Chairman, Agege Local Government seeking several reliefs against the Appellant. The Appellant filed a Notice of Preliminary Objection before the trial Court and prayed for the following: 1. An order dismissing or striking out in its entirety for want of jurisdiction on the ground that the claimants as constituted on the face of the Originating processes are unknown to law, 1

7 not being a juristic person. 2. An order dismissing or striking out this suit in its entirety for want of jurisdiction on ground that the claimants as constituted on the face of the originating processes, lack the requisite locus standi to institute and maintain this suit. The grounds upon which the objection was taken states thus: i. The Judicial powers vested on this Court by virtue of Section 6 of the Constitution of the Federal Republic of Nigeria(as amended) 1999 (the Constitution) is only exercisable against legal or juristic person. ii. The Supreme Court in THE ADMINISTRATOR /EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA (DECEASED) V EKE SPIFF (2009) 7 NWLR (PT. 1139) 97 at page 136 paragraph e â h held: "As a general rule, only natural persons, that is to say human beings and juristic or artificial persons such as bodies corporate are competent to sue and be sued before any law Court. In other words, no action can be brought by or against any party other than a natural person or persons unless such a party has been given by the statute expressly or impliedly or by common law either a legal personality under the name by 2

8 which it is sued or it sued or a right to sue by that name, see FAWEHINMI V NIGERIA BAR ASSOCIATION (NO.2) (1989) 2 NWLR (PT. 705) 558 AT 595. This is the law because the suit is in essence, the determination of legal rights and obligations in any given situation. Therefore only such natural/juristic persons in whom the rights and obligations can be vested are capable of being proper parties to law suits before Courts of law. Following this general rule where either of the parties is not a legal person capable of exercising legal and obligations under the law, the other party may raise this fact as a preliminary objection which if upheld, normally leads in the action being struck out. See SHITTU V LIGALI (1941) 16 NLR 27; OLU OF WARRI V ESI AND ANOR (1958) 3 FSC 94; AGBONMAGBE BANK V GENERAL MANAGER G. B OLIVANT LTD AND ANOR (1961) ALL NLR 116; (1961) 2 SCNLR 317." iii. Section 7(1) of the Constitution provides as follows: "The system of local governments be democratically elected local government councils is under this Constitution guaranteed; and accordingly, the Government of every State shall subject to Section 8 of this Constitution, ensure 3

9 their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils". iv. Section 4 of the Local Government (Administration law) AP 173 Laws of Lagos State of Nigeria, 2003, ("the Local Government Law") provides that: "There shall be a Local Government Council (in this law referred to as Council) for each Local Government Area of the State and the Council shall consist of Councillors elected from every ward in the Local Government". v. The purported Certificate of Occupancy ("the C. of O") dated 15 October 1982 (for whatever it is worth) on which the Claimants anchor their claims to the title (if any), to the property situate at Plot 1665, OyinJolayemi Street, Victoria Island Lagos as disclosed on the face of the C. of O was issued to a different body, to wit: " Agege Local Government Council." vi. There is no juristic body whatsoever and/or howsoever cognizable in law and known by the name "Agege Local Government" or "Chairman, Agege Local Government." vii. There is no paragraph of the statement of claim and the supporting documents which discloses the interest and or 4

10 capacity of the Claimants to institute and maintain this suit. viii. The 2nd Defendant in any case, has no business in the suit as he lack the requisite capacity or lacus standi to institute and maintain the suit in view of the facts contained in V above. ix This Honourable Court cannot exercise any jurisdiction in this suit on the behalf of the Claimants as presently constituted on the face of the Originating processes and the Claimants in any case are not entitled to any of the reliefs sought in their "Statement of Claim". The Appellant filed its Appellant's brief of arguments dated 13th October, 2014 on the 18th October, 2014 but deemed on the 25th March, It was settled by Sixtus Onuka of Paul Usoro & Co distilling a sole issue for determination as follows: "Considering all the facts and materials before this Honourable Court was the lower Court right to have dismissed the Appellant's preliminary Objection, assumed jurisdiction over the suit and granted the Motion to Amend?" The Respondents brief of Arguments settled by Chief Olalekan Yusuf SAN is dated 3rd December, 2014 filed on the same date and deemed on the 25th March, 5

11 2015 also formulating a sole issue for determination thus; "Whether in the entire circumstances of this case, the lower Court was right to assume jurisdiction by granting an order permitting the respondents to amend their Originating processes." The Court observes that both issues put forward by the parties are fundamentally the same and the only difference is in its presentation. The Court shall adopt the issue set forth by the Appellant as the sole issue for determination in this appeal. SOLE ISSUE "Considering all the facts and materials before this Honourable Court was the lower Court right to have dismissed the Appellant's preliminary Objection, assumed jurisdiction over the suit and granted the Motion to Amend?" It was submitted by the Appellant that the originating processes of the Respondents is fundamentally defective because the names with which they sued are not recognized or known to law and that this defect cannot be amended. The Appellant submitted that the suit was brought in the name of a person different from what was on the Certificate of Occupancy the Respondents wanted to rely on to prove their title and as such 6

12 they lacked the requisite locus standi to institute the suit, referred to the case of LION OF AFRTCA INS. CO LTD V ESAN (1999) 8 NWLR (PT. 614) 197. Appellant further stated that a combined reading of Section 4 of the Local Government (Administration) Law and Section 7 of the 1999 Constitution shows that the proper entity to be sued is "Agege Local Government Council" not "Agege Local Government". To the Appellant, the lower Court erred in law and misdirected itself in relying on the case of SO SAFE TABLE WATER TECHNOLOGIES LIMITED V OBAFUNMILAYO AYINOLUWA & ANOR (2013) LPELR 22034, thereby granting the Respondents leave to amend their originating processes. That while in the SO SAFE TABLE WATER CASE (SUPRA), the plaintiff applying for amendment was a competent and recognized party, the Respondent in this case did not have the competence or vires to apply for an amendment of its name to a juristic person. According to the Appellant, as far as the competence of the Claimant is concerned, it is a question of law and the test of a reasonable man on the street does not apply, referred to FAWEHINMI V. BA (1989) 2 NWLR (PT 109) 558. The Appellant went ahead 7

13 to state that the decision in SO SAFE TABLE WATER CASE no longer represents the current position of the law. It referred to a more recent decision in SHELL PETROLEUM DEVELOPMEMT COMPANY & ANOR V DANTEL PESSU (2014) LPELR (CA) and ADMINISTRATORS/EXECUTORS, ESTATE OF ABACHA v EKE SPIFF (2009) 7 NWLR (PT 1139) 97 while submitting that where there are two conflicting supreme Court decisions, the latter in time prevails, citing OSAKUE V FCE ASABA (2010) 10 NWLR (PT 1201) 1. Appellant also submitted that the case of HOPE DEMOCRATIC PARTY v INEC (2009) 8 NWLR (PT 1143) 297 relied upon by the lower Court can be distinguished from this present case. That unlike in HOPE DEMOCRATIC PARTY CASE (SUPRA), the Respondents in this case are still within time to file a fresh suit with a competent name. On the other hand, the Respondents while reaffirming the law that a non - juristic person cannot sue or be sued, submitted that the omission of the word "council" from the names of the Respondent is a misnomer the Court can readily cure upon an application for amendment. That a misnomer occurs where there is a mistake in stating the name of an existing person 8

14 or entity, referred to OLU OF WARRI & ORS V ESI & ANOR (1958) 1 NSCC 87, AB. MANU & CO V COSTAIN (WA) LTD (1994) 8 NWLR (PT 360) 122, MTN NIGERIA COMMUNICATIONS LTD V MR AKINYEMI ALUKO & ANOR (2013) LPELR (CA). Further submitted that once a Court comes to a conclusion that an error on the face of the originating processes is a misnomer, an amendment will be granted upon a proper application of same. Also contended that the SO SAFE TABLE WATER CASE (SUPRA) is the more recent decision of this Court on the matter and that the trial judge's decision to take judicial notice of the common usage of the Respondents name is not out of place, referred to MTN NIGERIA COMMUNICATIONS LTD V MR. AKINYEMI ALUKO & ANOR (SUPRA), NJOKU V UAC FOODS (1999) 12 NWLR (PT 632) 557, MAILAFIA V VERITAS INSURANCE (1986) 4 NWLR (PT 38) 802, SO SAFE TABLE WATER CASE (SUPRA). Furthermore, the Respondents submitted that the 1st Respondent full title was expressly stated in the body of the reliefs of the writ of summons and as such, the Respondent has been sufficiently described in the originating process before the Court. That the case of 9

15 ADMINISTRATORS/EXECUTORS, ESTATE OF ABACHA V EKE SPIFF (SUPRA) relied on by the Appellant is not applicable to this case as the error in this case is one as to identity which is not in the nature of a misnomer that can readily be cured by an amendment. Also submitted that the case of SHELL PETROLEUM DEVELOPMENT COMPANY & ANOR V DANIEL PESSU (2014) LPELR is distinguishable from the instant case. With respect to the Appellant's contention on the SO SAFE TABLE WATER CASE, the Respondents posit that it does not matter whether or not the application for amendment was sought before or after the filing of an objection, neither does it matter whether the error relates to the plaintiff's name or the defendant. That once an error in stating the name of a party in a suit is shown to be a misnomer, amendment should be granted, referred to ARAB CONTRACTORS (O. A. O) NIGERIA LTD V EL - RAPHAAL HOSPITAL AND MATERNITY HOME INVESTMENT CO LTD & ANOR (2009) LPELR (CA), ESTABLTSHMENT BAUDELOT V R. S. GRAHAM & CO LTD (1953) 1 ALL ER 149, ODE & ORS V THE REGISTERED TRUSTEES OF THE DIOCESE OF IBADAN (1966) 1 ALL NLR 287. The Respondents also 10

16 disagreed with the submissions of the Appellant regarding the case of HOPE DEMOCRATIC PARTY V INEC (SUPRA) relied on by the trial judge. They submitted that the disclosure of the proper name of the Respondent on the writ is sufficient to sustain the suit and the fact that a matter is sui generis does not mean it cannot be relied upon. In the Respondents' opinion, the Courts have a wide discretion in granting or refusing leave to amend mainly for the purpose of determining the real questions in controversy between the parties, referred to MTN NIGERIA COMMUNICATIONS LTD V MR AKINYEMI ALUKO (SUPRA) to urge that the Court should be keen on doing substantial justice against relying on mere technicalities. In response, the Appellant reiterated most of the argument made in its Appellant brief. Appellant also emphasized the fact that suing a non - juristic party means the suit was incompetent at the time it was instituted thus, the Court is robbed of jurisdictional competence to adjudicate upon the suit, referred to SPDC & ANOR V DANIEL PESSU (SUPRA), NJOKU v UAC FOODS (1999) 12 NWLR (PT 632) 557, BAYERO V MAINASARA & SONS LTD (2006) 8 NWLR (PT 982) 391, 11

17 ORAKWUTE V AGAGWU (1996) 8 NWLR (PT 466) 358, HI-FLOW FARM IND V UNIBADAN (1993) 4 NWLR (PT 290) 719, QUO VADIS HOTELS AND RESTAURANTS V COMMISSIONER OF LANDS MID-WESTERN STATES (1973) 6 SC 71, USUAH V GOC (NIG) LTD (2012) LPELR That the issue of technicality goes to no issue in the face of want of jural capacity and that the opinion of the Court in SPDC CASE (SUPRA), that such a defect is a mere misnomer was only a dissenting comment. In the Appellant's opinion, the case of MTN V ALUKO (SUPRA) is not applicable in this appeal because the order granting amendment was not challenged by the Appellant as a ground of Appeal in its Notice of Appeal, referred to ACB PLC V HASTON NIGERIA LTD (1997) 8 NWLR (PT 515) 110. In so far as the name of the Respondents in the body of the processes is distinct from the title of the parties on the writ, the Appellant submitted that the suit is incompetent and therefore urged this Court to so hold. RESOLUTION The question presented by the Appellant is one that calls for the determination of the legal standing of the Respondents and whether the trial Court was right in allowing them to amend their originating 12

18 processes before the Court. Jurisdiction of the Court is a threshold matter as a Court must possess jurisdiction before it can determine any matter. Jurisdiction is activated when certain conditions are present. One of the constituents of jurisdiction is competent parties, see the case of C.B.N. V. S.A.P. (NIG.) LTD. (2005) 3 NWLR (PT.911)152 where the Court held as follows: "In the case of MADUKOLU V. NKEMDILIM (SUPRA), it has been stated that for a Court to have jurisdiction, the following conditions must be present: (i) the proper parties are before the Court; (ii) the subject matter falls within the jurisdiction of the Court (iii) the composition of the Court as to members and qualifications, and (iv) the suit is commenced by due process of law and upon fulfillment of any conditions precedent to assumption of jurisdiction. " From the above list, competence of parties is a fundamental element and parties coming before the Court must be human beings or juristic persons in terms of having a legal capacity or having been bestowed by law with legal capacity to sue. The Appellant's description of who can be parties while 13

19 relying on the case of THE ADMINISTRATORS/ EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA (DECEASED) V EKE-SPIFF (2009) 7 NWLR (Pt. 1139) 97 at 136 is apt and self-explanatory. It is hereby reproduced below: "As a general rule, only natural persons, that is to say human beings and juristic or artificial persons such as bodies corporate are competent to sue and be sued before any law Court. In other words no action can be brought by or against any party other than a natural person or persons unless such a party has been given by the statute expressly or impliedly or by common law either a legal personality under the name by which it is sued or it sued or a right to sue by that name, se FAWEHINMI V NIGERIA BAR ASSOCIATION (NO. 2) (1989) 2 NWLR (PT.105) 558 AT 595. This is the law because the suit is in essence, the determination of legal rights and obligations in any given situation. Therefore only such natural/juristic persons in whom the rights and obligations can be vested are capable of being proper parties to law suits before Courts of law. Following this general rule, where either of the parties is not a legal person capable of exercising legal 14

20 rights and obligations under the law, the other party may raise this fact as a preliminary objection which if upheld, normally leads in the action being struck out. See SHITTU V LIGALI (1941) 16 NLR 21; OLU OF WARRI V ESI AND ANOR (1958) 3 FSC 94; AGBONMAGBE BANK V GENERAL MANAGER G. B OLIVANT LTD AND ANOR (1961) ALL NLR 116; (1961) 2 5CNLR 317" The Respondents must fit into one of the categories stated in the above cited case of THE ADMINISTRATORS / EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA (DECEASED) V EKE â SPIFF (SUPRA) to activate the jurisdiction of the Court and have its claim determined against the Appellant. Obviously, the Respondents are not human beings. So they must come under those bestowed with legal capacity. The contention of the Appellant is that the trial Court was wrong to dismiss its objection challenging the competence of parties in that the Respondents are not legal entities with the required legal personality to sue. Specifically that there is nobody known to law as "AGEGE LOCAL GOVERNMENT" as what is recognized is "AGEGE LOCAL GOVERNMENT COUNCIL". The trial Court in granting the application of the Respondents to 15

21 amend their names held thus: "In this case too, the claimant's correct name, Agege Local Government Council is well stated in the reliefs sought in the Writ of Summons and statement of claim. The Court will not rely on technicalities to shut out the claimants in the circumstances of this case. The mistake of counsel in not including "council" in the name of the 1st and 2nd claimants is a misnomer which can be corrected by an amendment in the interest of Justice." The arguments of the Respondents followed this line of reasoning while the Appellant argued otherwise. I opine that the resolution of this sole issue revolves around the question whether the non-inclusion of "council" to the names of the claimants is a misnomer or not. It is agreed between the parties that in the case of a misnomer, the Court can allow an amendment to the name of such a party. But, where it is not a misnomer, then the suit should be struck out for want of a legally recognized or juristic person. Simply put, a non - juristic person cannot sue nor be sued. It is also agreed that the naming of a non juristic person as a claimant in a suit makes the suit 16

22 outrightly incompetent. See the case of SHELL PETROLEUM DEVELOPMENT COMPANY & ANOR V DANIEL PESSU (2014) LPELR (CA) where the Court held thus: "The law is that for a suit to be competent for adjudication by a Court of law, there must be at least a competent plaintiff and a competent defendant, in the sense that both are juristic persons who can sue and be sued. Where the existing plaintiff or defendant lacks competence it will render the action incompetent thereby robbing the Court of the requisite jurisdiction to entertain the action". Now, a misnomer has been defined by Dictionary.com as an error in naming a person or a thing. Misnomer has also been defined inseveral legal authorities. One of such authorities is the case of MTN NIGERIA COMMUNICATIONS LTD V MR. AKINYEMI ALUKO & ANOR (2013) LPELR (CA) which held as follows: "Now, where there is a mistake with regard to the name of a litigant in an action, such a mistake is described as a misnomer. It simply means a mis-description or wrong use of a name. It is a mistake as to the name and not as to the identity of the particular party to the litigation." This Court 17

23 in the case of SO SAFE TABLE WATER TECHNOLOGIES LIMITED V OBAFUNMILAYO AYINOLUWA & ANOR (2013) LPELR - CA/L/176/2007 defined misnomer as follows: "In NJOKU V U.A.C (SUPRA), where the Court referred to the definition of the word 'misnomer' thus: "a misnomer as defined by Mozley and Whitely's Dictionary 10th Edition P.295 which is what Appellant Counsel submits is a mistake in name. Incorrect name is given to a person in a writ; it occurs when a mistake as to the name of a person who sued or was sued or when an action is brought by or against the wrong name of a person. The correct person in other words is brought to Court under a wrong name. Where there is an error only as to the correct name of a party to a suit an amendment sought in the proper manner may be allowed to rectify the error. It is usual to allow amendment in such a context... Indeed that is the import of the decision in NKWOCHA V FEDERAL UNIVERSITY OF TECHNOLOGY SUPRA in which my learned brother MUNTAKA COOMASIE stated thus: 'Corporate personality of the Respondent is not in doubt. It is therefore a legal person. It can sue and be sued in its corporate name as a juristic 18

24 person i.e. artificial person. Consequently, if such a name has been identified, that name shall be the name of the proposed defendant or plaintiff. However the law allows some room for human error. Where a limb or part of the name of the defendant is inadvertently omitted and the purported defendant is not misled, then the Court can always allow the plaintiff in a proper manner to amend what the Court think is a misnomer." See also MAERSK LINE V ADDIDE INVESTMENT LTD (2002) 11 NWLR (Pt. 778) 317 at The Supreme Court also set down how to determine a misnomer thus: "A crucial factor in determining whether what happened was a misnomer or not is whether there is an existing entity which has been given a wrong name such wrong name not being the name of another entity" Per MUKHTAR JSC in EMESPO J. CONTINENTAL LTD V CORONA SHIFAH - RTSGELLSCHAFT & ORS (2006) 5 S.C. (PT. 1) See also the standard set by this Court in the case of SO SAFE TABLE WATER (SUPRA) thus: "Whether an error in the name sought to be amended is a misnomer or not is a question of fad and depends on the attitude of a reasonable man confronted with the 19

25 writ in the circumstances of the case." The Appellant disagreed with the reasonable man's test, it contended that the issue of a juristic person is a legal issue and has nothing to do with a reasonable man. If the Court ignores the reasonable man's test then the question will turn into a subjective one. Pray, how else can an acceptable standard of ascertaining facts be adjudged? A reasonable man is the average and objective standard of assessing factual issues in the society. That is how the justice of the case can be separated from the technicality of the case. The question of whether a misnomer exists, will depend on the facts of each case. The Appellant's argument on the test of a reasonable man is flawed and is hereby discountenanced. Furthermore, for there to be a misnomer, there must be a mis - description of an existing entity. Where there are two entities which the name can be ascribed to, a mistake in commencing an action in the name of one rather than the other would not be a misnomer. In effect therefore, there must be an entity one can point at as the intended party, one that is identifiable, describable and one which is unequivocal 20

26 in existence. The case before this Court is to simply determine whether the Respondents can come under the description of a party that can qualify under the definition of a misnomer. Before that, it must be settled that a Court has wide latitude in exercising discretion in granting an application for amendments generally. Amendments are allowed even at appellate stages of any proceeding, so it is within the jurisdiction of a Court to allow amendments. However, that latitude is circumscribed by the nature of the amendment sought. In this case, a Court lacks the jurisdiction to substitute a non-juristic party with a juristic party. This is simply because there must be a competent party before the Court to invoke the jurisdiction of the Court and also because amendments date back to the date of the originating processes. I identify with the Appellant on the provision of Section 6 and 7 of the 1999 Constitution (as amended) on judicial powers and the recognition of the Local Government system in the country. The Local Government Areas recognized for Lagos are listed and there at the First Schedule, Part 1, Agege Local Government is the first on the 21

27 list. Pursuant to the Constitutional provision on Local Government creation, Lagos State by the Local Government (Administration law) CAP L.73 Lagos State of Nigeria 2003, particularly Section 4, created Local Government council for each Local Government Area to be made up of Councillors. So it is incontestable that there is constitutionally recognized Agege Local Government Area in Lagos State and the state law provided for how it should be administered. Can the name Agege Local Government be confused with any other identity in law? Is there any human being, legal creation or registered name similar to Agege Local Government? Going by the Supreme Court assessment of a misnomer, to qualify as a misnomer, there must be an existing entity which has been given a wrong name. There is indeed in existence a constitutionally recognized Agege Local Government Area in Lagos State, Nigeria. Does it resemble any other entity? The obvious answer is NO. Is there any confusion about the Agege Local Government or would a reasonable man miss the fact that it was Agege Local Government Council that was the intended plaintiff? Again, the answer is NO. The Respondents 22

28 before the amendment was allowed were listed as follows: a. Agege Local Government b. Chairman, Agege Local Government I agree with the Appellant that it is councils that are provided for by the constitution and the law. The trial Court held that the omission of the word "council" was a misnomer. Apparently, divergent views have also been expressed by various judgments of the superior Court that gives the semblance of conflicting judgements as is evident in the briefs settled by learned counsel for the parties. However, I think the Appellant is being unnecessarily technical in its argument which is theoretically sensible but not legally correct. The omission fits perfectly into the definition of misnomer and except the Appellant can justify why the definition cannot apply to it, I too would agree with the trial Court. First, the Constitution recognizes Agege Local Government Area and the Local Government Law of Lagos state also set up its structure. There is no other entity be it a human being or a legal entity that bears a name similar to Agege Local Government that it can be said to be a mistaken identity. It was not shown that there is in 23

29 existence any such similar entity so how can the issue of mistaken identity even arise? Furthermore, the proper name of the 1st Respondent was stated in the Respondents' reliefs in their writ of summons to give credence to the misnomer and wrong identity, see page 2 of the Court records which reads as follows: "The Claimants' claim against the Defendant is for: a. A declaration that by virtue of the Certificate of Occupancy dated 15th October, 1982 and registered as No. 96 at Page 96 in Volume 1982G, the Claimant (Agege Local Government Council) is the valid and lawful owner of the property lying, being, situate and known as Plot 1665, OyinJolayemi Street, Victoria Island, Lagos State measuring approximately square meters more particularly referred to and delineated as Plot 1665 with Beacons P8C11529, P8C11541, P8C11542, and PBC1152B in Survey Plan No. LS/D/LKJ/126 dated 25/06/1982 drawn by O. AKINOLA (Surveyor General, Lagos State); M. Ola Dawodu and S. A. Balogun (Surveyor Grade II) b. A declaration that the Claimant (Agege Local Government Council) is the one entitled to possession of the property lying, being and referred to as 24

30 Plot 166, Oyin Jolayemi Street, Victoria Island, Lagos State measuring approximately square meters more particularly referred to and delineated as Plot 1665 with Beacons P8C11529, P8C11541, P8C11542, and PBC1152B in Survey Plan No. LS/D/LKJ/126 dated 25/06/1982 drawn by O. AKINOLA (Surveyor General, Lagos State); M. Ola Dawodu and S. A. Balogun (Surveyor Grade II) by virtue of the Certificate of Occupancy dated If October, 1982 and registered as No. 96 at Page 96 in Volume 1982G at the Lands Registry, Lagos." It is trite that there is a restriction on registration of business names when such include National, Government, Municipal, State, Federal or any word which imports or suggest that the business enjoys the patronage of the Federal, State or Local Government, see Section 579 of the Company and Allied Matters Act. It is settled that no human being answers the name Local Government nor any artificial entity registered under Company and Allied Matters Act (CAMA). So where could a mistaken identity arise? The name of a competent party is the actual name a person is known with or the corporate name of the entity. Is the authority of 25

31 SHELL PETROLEUM DEVELOPMENT COMPANY V DANIEL PESSE (supra) applicable in this case? I think not. The fact that there was a misnomer in the name of the 1st Appellant therein was acceded to by the Court in the contribution of OGUNWUMIJU, JCA wherein he held: "There was a misnomer in the writ in this case as it relates to the1st Appellant. The misnomer could only have been corrected with leave of Court which in this case was neither sought nor obtained". This clearly distinguishes the case from the one at hand in that there was a timeous application to correct the misnomer in this case. That was not a dissenting judgment as contended by the Appellant. It was a contribution of a Justice and no judgment of the Court of Appeal is a judgment without the contributions of 2 other justices who sat in the panel when the appeal was heard or 4 other justices in the case of a full Court. In the SHELL PETROLEUM CASE, no application was made to correct the misnomer so judgment was entered against a non - juristic person. Even with the misnomer, no step was taken by the Respondent to amend the name and so by the time the Court was considering the issue, the 26

32 name of the 1st Appellant remained a wrong name. In this case, the Respondents at the discovery of the misnomer took immediate steps to amend the names of the Respondents and leave was so granted. In essence, the facts are different and therefore, I agree with the trial Judge that the case of SO SAFE TABLE WATER TECHNOLOGY LTD V OBAFUNMILAYO AYINOLUWA (SUPRA) is relevant and applicable to this case. The jist of the decision therein is that a party cannot amend or effect a correction in a Court process by substituting a non-juristic person with a juristic person since there was initially no party known to law that can maintain the action and be substituted. The Appellant also picked bones with the trial judge when he relied on the case of SO SAFE TABLE WATER (SUPRA) which was not cited to the Court. A Court is not limited to the case cited by counsel in determining matters before the Court. The Court can rely on other sources of legal materials such as those derived from personal research and publications to support the Court in determining issues. There is no restriction on the Court to limit itself to only cases cited by parties. The trial judge was on 27

33 solid ground and should be commended. The important thing is for the Court to apply legal authorities appropriately in the determination of disputes between parties. See the case of URUGBO v UNA (2002) 9-10 S.C. 61 wherein the Supreme Court held thus: "A Court of law has no legal duty to confine itself only to authorities cited by the parties. It can, in an effort to improve its judgment, rely on authorities not cited by the parties. Historical books or whatever books are authorities and the Koko District Customary Court was free to make use of them in its judgment. That per se is not breach of fair hearing; not even the twin pillars of natural justice." Also in EJIMOFOR & ORS V NIGERIAN TELECOMMUNICATIONS LTD & ORS (2006) LPELR (CA) the learned jurist, NZEAKO, JCA (Blessed Memory) added the following phrase: "There cannot be injustice to the parties in a Court referring to legal authorities which strengthen, illuminate or explain and justify its decision." I also add that it is a demonstration of industry employed by the Judge in ensuring that decisions are guided by suitable authorities that hit the nail on the head. 28

34 Examples abound where counsel cite inappropriate authorities to Court and therefore, Courts should go the extra mile to get relevant authorities so that it is not misguided. The amendment to the name of the 1st Respondent as allowed by the trial Court was proper. It was a mere misnomer and not that of a non-juristic person as contended by the Appellant. Such amendments are allowed when made in an appropriate manner. The trial Court exercised its discretion appropriately with regards to the 1st Respondent. Now on the issue of whether the 2nd Respondent i.e. the Chairman, Agege Local Government can sue or be sued as a juristic person, the law appears to be abstruse in this regard. However, let me say that where a body or office is created by statute, the right to sue or be sued can be inferred notwithstanding the absence of an express provision in this regard. See the case of CHAIRMAN EFCC & ANOR V. LITTLECHILD & ANOR (2015) LPELR (CA), Hence, being that the office of the Chairman, Agege Local Government is a creation of statute, he can rightly sue in that capacity and as earlier stated, the omission of the word "council" from the name is a 29

35 misnomer which can be readily corrected upon application to the Court. Flowing from above therefore, the sole issue is hereby resolved in favour of the Respondents. Consequently, the appeal fails for being unmeritorious and is hereby dismissed. The ruling of the trial Court delivered by HON. JUSTICE OBADINA J on the 8/4/14 is hereby affirmed. Cost of N30,000 in favour of the Respondents. SIDI DAUDA BAGE, J.C.A.: I had the privilege to read in draft the lead judgment of my learned brother Hon. justice YARGATA BYENCHIT NIMPAR, JCA. My Lord has effectively dealt with all issue raised in the appeal, leaving no space for me to add anything useful. I also resolved the issue in favour of Respondents and against the Appellant, that the Respondent has the right to sue in that capacity. I also dismissed the appeal for lack of merit. The ruling of the Lagos state High Court delivered by Honourable Justice Obadina J, on the 8th April, 2014 also affirmed by me. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I agree with the lead judgment just delivered by my learned brother, NIMPAR, JCA 30

36 affirming the consolidated Ruling of OBADINA J, of the Lagos State High Court delivered on the 8th of April, 2014 and dismissing this appeal. It appears to me that this is not a case of naming a nonjuristic person as a party to the suit at the lower Court. Indeed, it is a case of misnomer arising from the mistake in naming a juristic person. At best, it is a mistake as to the identity of the Respondent in the instant appeal with the omission of the word 'council' from their name. Therefore, the learned trial judge was right in dismissing the Appellant's Notice of preliminary objection challenging the jurisdiction of the Court to entertain the suit and granting the Respondent's motion for the amendment of their originating process. For the more the detailed reasons given in the lead judgment, I too hereby dismiss this appeal as lacking in merit. 31