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:

1. An order of the Court striking out the 2nd defendant as party in this suit for want of privity of contract.
2. 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:

1. 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.
2. 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.

2. 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.

2. 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.