Ataguba & Company V. Gura Nigeria Limited. (2000)

LawGlobal-Hub Lead Judgment Report

MAHMUD MOHAMMED, J.C.A.

T

his is an appeal against the judgment of Kurada J of the Kaduna State High Court of Justice delivered on 20/7/98 in an action filed by the respondent which was the plaintiff against the appellant which was the defendant. The plaintiff claim which was filed under the undefended list procedure of the Kaduna High Court outlined by Order 22 Rules 1 to 5 of the Kaduna State High Court (Civil Procedure) Rules 1988 against the defendant is for the sum of seven hundred and fifty thousand Naira (N750,000.00) with 21% interest from 11/5/95 and thereafter at 10% interest on the judgment sum until the judgment is liquidated.

On being served with the marked writ of summons accompanied by the affidavit in support of the plaintiff’s claim, and in accordance with the requirements of the rules, the defendant duly filed its own Notice of Intention to defend the action duly accompanied by the affidavit in support of the Notice. After hearing learned counsel on both sides on whether or not the affidavit of the defendant in support of its Notice of Intention to defend had disclosed a defence to the action on the merit, the learned trial Judge after scrutinizing the evidence in the paragraphs of the affidavit in support of the plaintiff’s claim against the averments contained in the defendant’s affidavit in support of its Notice of Intention to defend, came to the conclusion that no defence to the action on the merit had been disclosed in the defendant’s affidavit and accordingly entered judgment for the plaintiff as follows at pages 34 – 35 of the record:-
“For the foregoing, I am of the view that the defendant has not, by (sic) his affidavit disclosed a defence on the merit to this action to warrant its transfer to the general Cause list. I therefore refuse to transfer the case to the general cause list and the suit shall be heard as undefended and I shall accordingly enter judgment for the plaintiff without calling upon (sic) him to formally prove his case through witnesses. I hereby enter judgment for the plaintiff against the defendant in the sum of seven hundred and fifty thousand Naira (N750,000.00) only being a refund of money paid for a DAF Truck with Registration No. KD 144 SR.

There is no averment in the plaintiff’s affidavit in support of the writ of summons that interest was intended to be paid on the amount and the transaction, in my view, is not one that normally or by its nature, interest is (sic) expect or paid. The claim for interest therefore has no basis. It is accordingly refused and is hereby dismissed.”

Not satisfied with this judgment, the defendant now appellant has appealed to this Court against it upon 3 grounds of appeal contained in the Notice of appeal dated 28/7/98. In the appellant’s brief of argument deemed filed and served upon extension of time granted by this Court on 22/6/99, two issues for the determination of the appeal were formulated from the 3 grounds of appeal. The issues are:
“1. Whether the entire proceedings before Hon. Kurada J. were not rendered a nullity by the fact that the purported defendant was not a juristic or legal person?
2. Whether the appellant’s notice of intention to defend and affidavit in support disclosed sufficient facts and materials constituting a defence on the merits such that the learned trial Judge upon due consideration ought to have transferred the matter to the general cause list or at the worst joined Messrs Inland Bank Plc Nig who are the appellant’s disclosed principals and whether in the circumstances of this case, the trial court could have properly entered judgment for the respondent,”

In the brief of argument filed by the respondent on 30/7/99 on the other hand, the following two issues were identified for the determination of the appeal.
“1. Whether the defendant (an unincorporated body using business name) as non-juristic person is capable of being sued in its name as in this case.
2. Whether the appellant’s notice of intention to defend dated 6th day of June, 1999 and the supporting affidavit disclosed a defence on the merit to warrant the suit being transferred to general cause list.”

The above issues as contained in the respective briefs of argument of the appellant and the respondent though differently worded are in my opinion, virtually the same. I shall therefore proceed to resolve the two issues in the appellant’s brief of argument in the determination of this appeal.

The first is whether the appellant not being a juristic or legal person could have been sued as a defendant at the lower court. This issue according to the appellant had raised fundamental question of legal personality and by necessary implication, the jurisdiction of the lower court. It was argued that the appellant being a firm of legal practitioners as disclosed in the affidavit in support of its notice of intention to defend, is not a juristic person and therefore lacked the legal personality to defend the action at the lower court. That in the absence of a defendant with the necessary required legal personality to defend the action, the lower court had no jurisdiction to entertain the respondent’s case and for the same reason the entire proceeding, before the lower court was a nullity. Several cases cited and relied upon by the appellant in the appellant’s brief include FAWEHINMI V N.B.A (NO.2) (1989) 2 NWLR (PT.105) 550 and MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR (PT4); 855. Although the appellant had conceded in its brief that this issue on jurisdiction was not raised and argued at the lower court, there being sufficient facts ex facie on the record establishing want of jurisdiction,’ on the authority of OLOBA V AKEREJA (1988) 3 NWLR (PT.84) 508 AT 520, the learned trial Judge ought to have raised the issue suo motu. Learned counsel to the appellant therefore urged this Court to allow the appeal on this issue and strike out the respondent’s suit.

For the respondent however it was argued that the appellant being a firm of legal practitioners, a non-juristic person is capable of being sued in its business name having regard to the decision of this Court in the case of FABIO INDUSTRIES LTD V UNITED DISTILLERS PLC and PETER BIDOKWU & CO (1999) 5 NWLR (PT.602) 314. That for the same reason and on the authority of the same case the lower court had jurisdiction to entertain the respondent’s suit.

There is no doubt at all that a person who should commence an action in court or against whom an action is commenced in court must be a person known to the law, namely, a legal person. Therefore if it is successfully shown that a party to an action is not a legal person, the party should be struck out of the suit. FAWEHINMI V N.B.A. (NO.2) (1989) 2 NWLR (PT.105) 558 AT 640 – 641. In the present appeal, has it really been successfully shown that the appellant which was sued as a defendant in the court below in the name of ATAGUBA & COMPANY is not a legal person capable of being sued in that name? The capacity in which the appellant was sued in the undefended suit filed by the respondent at the court below is clearly stated in paragraph 3(b) of the affidavit in support of the respondent’s claim and paragraph 1 of the appellant’s affidavit in support of the notice of intention to defend the action. The averment in paragraph 3(b) of the affidavit in support reads:-
“3(b) The defendant is a firm of legal practitioners situate along Ali Akilu Road Kaduna.”
while paragraph 1 of the affidavit in support of notice of intention to defend states:-
“1. That I am Principal Partner in the firm of ATAGUBA and Company, Legal Practitioners of 27 Ali Akilu Road, Kaduna and that by my position aforesaid I know the facts of this suit well.”

What had been established by these two paragraphs of the respective affidavits of the parties to the suit at the court below is that “Ataguba and Company” which was sued as the defendant in the suit is a Firm of Legal Practitioners with E.E. Ataguba as a Principal Partner. Therefore ‘Ataguba and Company’ being a Firm of Legal Practitioners either being operated by E.E. Ataguba alone in that name or being operated as a partnership firm in that name with two or more legal practitioners having Ataguba as the Principal Partner, that Firm of Legal Practitioners may be sued in the name of the Firm. This is so by virtue of the provisions of the Law under Order 11 Rules 9 and 26 of the Kaduna State High Court (Civil Procedure) Rules 1987. Rule 9 of Order 11 reads:-
“9. Any two or more persons claiming or alleging 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 may direct.”
Rule 26 of Order 11 of the Rules on the other hand, provides:-
“26. Any person carrying on business within the jurisdiction in a name or style other than his 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.”
In other words if the firm of Legal Practitioners of Ataguba and Company has two or more legal practitioners operating the firm in partnership, that firm has the capacity to sue and be sued in the name of Ataguba and Company. However if the firm is being operated by Ataguba alone in that name and style other than his own name, although the firm may not have the capacity to sue in that name, the firm can all the same be sued in that name.

For the foregoing reasons, the suit of the respondent against the appellant in the name of Ataguba and Company as the defendant is quite competent and has no feature whatsoever depriving the lower court of jurisdiction to hear and determine the claim. See CARLEN (NIG) LTD V UNIVERSITY OF JOS (1994) 1 NWLR (PT.323) 631 AT 656 where Ogundare JSC explained this state of the law:-
“There are bodies generally regarded as quasi or near corporations on whom statutes expressly or impliedly confer a right to sue or be sued though unincorporated. They are no legal personae strictu sensu but have a right to sue or be sued by a particular name. Examples of these are partnerships, trade unions, friendly societies and foreign institutions authorized by their own law to sue and be sued, though not incorporated.”
See also THOMAS V LOCAL GOVERNMENT SERVICE BOARD (1965) 1 NMLR 310. The PROVOST ALVAN IKOKU COLLEGE OF EDUCATION V AMUNEKE (1991) 9 NWLR (PT.213) 49 and the English case of WILLIS & ANOR V ASSOCIATION OF UNIVERSITIES OF THE BRITISH COMMONWEALTH (1964) 2 ALL E.R. 39 AT 42. In the instant case therefore, the appellant, an incorporated body operating under the name of Ataguba and Company is capable of being sued in that name.

Next for determination is whether the appellant’s affidavit in support of its notice of intention to defend the action really disclosed a defence on the merit justifying the transfer of the matter to the general cause list for hearing. It was argued for the appellant that the affidavit in support of notice of intention to defend having disclosed that the appellant was the agent of Inland Bank in the transaction, that the DAF Truck is still lying at the premises of the Kaduna High Court awaiting the outcome of an action to determine its ownership which action had been adjourned sine die and that the appellant’s action against Inland Bank to recover the sum of N750,000.00 paid into its account by the appellant is still pending at the Kaduna High Court, defence on the merit had been disclosed in the affidavit to warrant transferring the suit of the respondent to the general cause list for hearing. The cases of TIWELL NIGERIA LTD V INLAND BANK NIGERIA LTD (1997) 3 NWLR (PT.494) 408 AT 419 and OKEKE V NICON HOTELS LTD (1999) 1 NWLR (PT.586) 216 AT 224 were cited in support of the appellant’s submission.