Ataguba And Company V. Gura Nigeria Limited (2005)

LAWGLOBAL HUB Lead Judgment Report

EDOZIE, J.S.C.

By a writ of summons filed on 4th May, 1988 in suit No. KD4/KAD/257/98 at the Kaduna State High Court, the respondent as plaintiff sued the defendant/appellant, Ataguba and Company being the business name of Mr. E. E. Ataguba a legal practitioner of No. 27, Ali Akilu Road, Kaduna. The claim was for the sum of N750,000.00 (seven hundred and fifty thousand naira only) with interest at the rate of 21 % from 11th May, 1995 till the date of judgment and thereafter at the rate of 10% until the judgment sum is liquidated. The principal sum claimed represents the amount paid by the respondent to the appellant as the purchase price of a DAF truck with registration No. KD 144 SR which vehicle was later retrieved from the respondent upon the sale being set aside by the court pursuant to an interpleader proceedings. The suit was filed under the “undefended list” procedure and was supported by an affidavit of nine paragraphs (with two exhibits) sworn to by Tahir Saleed, a litigation officer in the firm of Sofianu Saleh Gadem & Co., the solicitor to the respondent.

Upon being served with the summons, the appellant through his counsel entered a conditional appearance on 16th June, 1998 and later on 7th July filed a notice of intention to defend the suit accompanied with an affidavit sworn to by the appellant to which affidavit were annexed four exhibits. Furthermore, the appellant filed on 7th July, 1998 a notice of preliminary objection to the effect that the appellant, as named, Ataguba and Company, is not a juristic person and as such the suit should be struck out as the court had no jurisdiction to entertain same. This objection appeared to have been glossed over.

The trial court took the argument of counsel on the ‘notice of intention to defend’ and in a ruling delivered on 20th July, 1998, the learned trial Judge, Kurede, J., held that the appellant had not by his affidavit disclosed a defence on the merit to warrant the transfer of the suit to the general cause list and thereupon, he proceeded to enter judgment for the respondent in the sum of N750,000.00 (seven hundred and fifty thousand naira only) without costs.

Against that ruling, the appellant lodged an appeal to the Court of Appeal raising therein the preliminary objection to jurisdiction based on the alleged incapacity of the named appellant as a non-juristic person, an objection which for reason not apparent on the record was not entertained by the trial court. After hearing the appeal, the Court of Appeal, Kaduna Division, in a unanimous decision delivered on 9th of May, 2000 dismissed the appeal both on the objection on the personality of the named appellant and the merits of the case. Undaunted, the appellant has further appealed to this court. Briefs were filed and exchanged and in the appellant’s brief two issues were identified and adopted by the respondent for the determination of this appeal. These are:-

“(1) Whether the Court of Appeal was not in error when it held that the entire proceedings before Hon. Kurede, J. were not rendered a nullity by the fact that the purported defendant was not a juristic or legal person

(2) Whether the Court of Appeal was right when it affirmed the decision of the High Court that the appellant’s notice of intention to defend an affidavit in support did not disclose sufficient facts and materials constituting a defence on the merit.”

With respect to the first issue for determination, dealing with the non-juristic personality of the named appellant on record, “Ataguba and Company”, it is submitted in the appellant’s brief that generally, parties to an action must be juristic persons, that is, natural persons or persons recognized by law citing the case of Lion of Africa Insurance Co. Ltd. v. Esan (1999) 8 NWLR (Pt. 614) 197 at 201 adding that where either of the parties lacked the juristic personality of suing or being sued, the court would have no jurisdiction to adjudicate over the matter; consequently any proceedings thereon would be a nullity on the authorities of the cases of Rossek v. A.C.B. Ltd. (1993) 8 NWLR (Pt. 312) 382 and Madukolu v. Nkemdilim (1962) 2 SCNLR 341.

It was pointed out that there are exceptions to the general rule where the rules of court permit non-juristic persons to sue or be sued. In this connection, reference was made to Order 11 rules 9 and 26 of the Kaduna State High Court (Civil Procedure) Rules, 1987, which the court below relied upon in holding that the appellant was properly sued in the name of his firm “Ataguba and Company”. But learned counsel for the appellant expressed the view that Order 11 rules 9 and 26 were unavailing. He contended that since the affidavit evidence of the parties did not establish that there are two or more persons practicing as partners in the name and style of “Ataguba and Company”, the appellant was not stable in that name under rule 9. He craved in aid the case of Iyke Medical Merchandise v. Pfizer Inc. (2001) 10 NWLR (Pt.722) 540; (2001) 5 SCNJ 27 paras. 15 to 20. Furthermore, he argued that the appellant was not carrying on business in a name or style other than his own name to make rule 26 applicable. But learned counsel for the respondent in his brief of argument argued to the contrary. He was of the view that the appellant was properly sued in the name of his firm in accordance with Order 11 rule 26 of the aforesaid Kaduna State High Court (Civil Procedure) Rules, 1987 relying in support of his contention on the following cases:- Carlen (Nig.) Ltd. v. University of Jos (1994) 1 NWLR (Pt. 323) 631 at 656; Thomas v. Local Government Service Board (1965) NMLR 310; Provost Alvan Ikoku College of Education v. Amuneke (1991) 9 NWLR (Pt. 213) 49.

The dispute which eventually culminated into this appeal started when the respondent bought a vehicle from Mr. E. E. Ataguba, a legal practitioner, who issued a receipt of the price paid in the firm name of “Ataguba and Company”.

That informed the respondent to commence the action in that firm name for the refund of the purchase price of the vehicle when there was a total failure of consideration by reason of the fact that the vehicle in question was subsequently recovered from the respondent following the setting aside of the sale by the High Court under an interpleader proceedings. The question now being raised under the first issue for determination in this appeal is whether an action is maintainable against the appellant in the firm’s name, the firm not being a juristic persona.

Undoubtedly, for an action to be properly constituted so as to vest jurisdiction in the court to adjudicate on it, there must be a competent plaintiff and a competent defendant. As a general principle, only natural persons, that is, human beings and juristic or artificial persons such as body corporate are competent to sue or be sued. Consequently, where either of the parties is not a legal person, the action is liable to be struck out as being incompetent: see Shitta v. Ligali (1941) 16 NLR 23; Agbonmagbe Bank Ltd. v. GeneralManager G. B. Ollivant Ltd. and Anor. (1961) 1 All NLR 116. The law, however, recognizes that apart from natural and juristic persons, some non-legal entities can sue and be sued eo nomine. Thus, it has been held that 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 statute, expressly or impliedly or by the common law, either:-

(a) A legal persona under the name by which it sues or is sued, e.g. corporation sole and aggregate, bodies incorporated by foreign law and “quasi-corporations” constituted by Act of Parliament; or

(b) A right to sue or be sued by that name e.g. partnerships, trade unions, friendly societies and foreign institutions authorized by their own law to sue and be sued but not incorporated.