Carlen (Nig.) Limited V. University Of Jos & Anor (1994) LLJR-SC

Carlen (Nig.) Limited V. University Of Jos & Anor (1994)

LawGlobal-Hub Lead Judgment Report

OGUNDARE, J.S.C.

The plaintiff, a limited liability company on 19th April, 1982 entered into a contract with the Vice-Chancellor of the University of Jos for the construction of faculties of Environmental Sciences and Education at the permanent site of the University in Jos at a total cost of N28,09 million. It was the Registrar of the University that signed the contract, presumably on behalf of the Vice-Chancellor.

The contract contained an arbitration clause in the event of a dispute between the parties to it. The contract was partly executed and some payments made by the University to the plaintiff before a dispute arose between the parties leading to the termination of the contract by the Vice-Chancellor by a letter dated 16th April, 1984.

The plaintiff instituted an action at the High Court of Plateau State (Jos Judicial Division) in 1986 against the University of Jos and the council of the University as defendants claiming by its amended statement of claim a total sum of N11,358,000.00. The defendant’s entered appearance and filed and served an amended statement of defence. At the subsequent trial the plaintiff called witness in support of its case and at the close of the plaintiff’s case the defence opened. Whilst the case for the defence was still on, learned leading counsel for the defendants Mr. Brown-Peterside, SAN filed a motion praying for an order or orders.

“1. directing the plaintiff to give security for costs in this matter,

2. striking out this action/or dismissing it on the ground that it is premature and/or incompetent.”

This motion was supported by an affidavit and a further affidavit both sworn to by junior counsel in the Chambers of the learned Senior Advocate. At the hearing of the motion, the learned trial Judge took arguments from learned counsel for the parties and in a reserved ruling held that the two defendants were juristic persons and that the action was properly brought against them.

He also held that both the Vice-Chancellor and the Registrar of the University could properly have been made parties to the action and that the Vice-Chancellor was an agent of the council and a legal person. On the question of incompetence of the action and the jurisdiction to try the matter and that the defendants having taken steps in the matter, the action was competent notwithstanding the arbitration clause in the contract. The first prayer was abandoned at the hearing and was consequently struck out.

Being dissatisfied with the decision, the defendants appealed to the Court of Appeal upon one ground of appeal which, because of issues raised before us, in this appeal, I quote hereunder. It reads:

“1. The learned trial Judge erred in law in ruling as he did that the suit before him is competent and/or that he had jurisdiction to hear the same, and this error occasioned miscarriage of justice.

PARTICULARS OF ERROR

1. Para 3163(3) – payment after forfeiture of exhibit 1, which is the contract on which the suit is based, (which is hereunder reproduced), is clear and unambiguous and the learned trial Judge ought to have given effect to it by holding otherwise. If he had done so, he would have come to a different conclusion:

‘Payment after forfeiture: If the employer shall enter and expel the contractor under this clause he shall account (sic) of the contract until the expiration of the period of maintenance and thereafter until the costs ‘of completion and maintenance damages for delay in completion (if any) and all other expenses incurred by the employer have been ascertained and the amount thereof certified by the engineer. The contractor shall then be entitled to receive only such sum or sums (if any) as the engineer may certify would have been due to him upon due completion by him after deducting the said amount. But if such amount shall exceed the sum which would have been payable to the contractor shall upon demand pay to the employer the amount of such excess and it shall be deemed a debt due by the contractor to the employer and shall be recoverable accordingly.’

(II) By paragraph 3201 of the same Exhibit 1, the employer is, simply defined as ‘The Vice-Chancellor’. That being so, neither of University of Jos nor the council of the University and Jos is a party to the said contract and therefore ought not to have been sued. If the learned trial Judge had properly adverted his mind to the foregoing, having regard particularly to the University of Jos Act, 1979 inter alia, he would have come to the conclusion that he had no jurisdiction to hear the suit and/or that the suit before him is incompetent.”

Briefs having been filed and exchanged the appeal was argued before the Court of Appeal holden at Jos and that court in a reserved judgment allowed the appeal and set aside the judgment of the trial High Court. The Court of Appeal held:

1. that the contract was not executed by the parties to the action moreso as the seal of the University was not affixed thereto;
2. that as the contract agreement was signed by the Registrar and not the Vice Chancellor, it was not executed by the parties to the suit; it was wrongly admitted in evidence;
3. that both the council of the University and the Vice Chancellor are not legal persons;

The court, per Katsina-Alu, J.C.A., further held:

‘The only person who can be an agent must be a legal person who can enter into contract agreement. In the con of this suit the Registrar cannot be an agent of the University. In my judgment the contract agreement is null and void since one of the parties thereto is not a legal person and in consequence that contract cannot be binding on the University. This is so because under the University of Jos Act No. 82 of 1979, it is only the said University which can sue and be sued, not even the council.”

It finally struck out the names of the defendants from the suit. Being dissatisfied with this judgment the plaintiff, with leave of the Court of Appeal, appealed to this court upon 8 grounds of appeal. And pursuant to the rules of this court, the parties filed and exchanged their respective Briefs of Argument. In its Brief of Argument the plaintiff set out the following eight questions as calling for determination:

“1. Whether the Court of Appeal had the jurisdiction to determine the issue of execution of Exhibit 1 or 15 by the Vice Chancellor or the Registrar having regard to the only ground of appeal before them

2. Even if the issue of execution of Exhibit 1 or 15 arose for the determination in the appeal before the Court of Appeal (which is not conceded is it not an issue which properly belonged to the determination in the High Court at the end of the trial after the whole evidence is considered
3. Whether the decision of the Court of Appeal to determine the existence or non-existence of the contract the subject matter of this case between the parties on affidavit evidence and without the issue set down as a preliminary issue for trial is wrong in law.
4. Whether the decision of the learned Justices of Appeal to strike out the names of the defendants as parties to this suit is not wrong in law
5. Whether the admission by the 1st defendant in paragraph 8 of the Further Amended Statement of Defence that it paid total sum of N5,868.80.00 to the plaintiff for work certified done under the contract document Exhibit 1 or 15 estops it on the doctrine of ratification from denying the existence or enforceability of a contract between it and the plaintiff.
6. Whether the 2nd defendant is a juristic person who can sue or be sued in the performance of the statutory functions conferred on it by the University of Jos Act, 1979.
7. Whether the decision of the Court of Appeal was not wrong in law when they held that the Vice Chancellor and the Registrar cannot be agents of the University.
8. Whether the Court of Appeal has the jurisdiction to determine that Exhibit 1 or 15 was inadmissible in law and irrelevant when no ground of appeal complaining about the admissibility of the contract document was before them.”

The defendants for their part set out what, in effect, is a lone issue, to wit:

“Were the learned trial Justices of the Court of Appeal right in holding as they did that the suit before the High Court was incompetent, having regard to the fact that the contract the subject-matter of these proceedings was not executed by the parties in the manner required by the University of Jos Act, 1979 by virtue whereof the said Court lacked jurisdiction to entertain the same”

That only issue however cannot, in my judgment encompass the 8 grounds of appeal. I shall, therefore, adopt the issues as contained in the appellant’s brief in my determination of this appeal. The 8 questions raised by the plaintiff can, however, be grouped into two compartments, that is, (a) Questions 1, 2, 3 and 8 put in issues raised and determined by it having regard to the only ground of appeal; and (b) Questions 4, 5, 6 and 7 which dispute the correctness of the various findings made by that court.

Questions 1, 2, 3 & 8:

It is contended in plaintiff/appellant’s brief that the issues pronounced upon by the court below are issues not arising out of the lone ground of appeal before it or not raised in the High Court. The defendants in their respondents’ brief proferred no answer to this submission.

I have already in this judgment set out the only ground of appeal contained in the defendants’ Notice of Appeal to the Court of Appeal. This ground, in the manner it was framed, was not without difficulties. This is more so when read along with its two particulars. Particular (1) raised an issue not touched upon at all at the trial court nor arising from the defendants’ motion papers. It is not, therefore, surprising that it was abandoned in their Reply Brief at the Court of Appeal. Particular (II) raised issues not canvassed at the court of trial and not arising from the decision of that court appealed against. However, the two particulars could not be said to complement each other and should have constituted separate grounds of appeal. The lone ground of appeal could not by any stretch of imagination be described as a complaint against anything decided by the learned trial Judge. For these reasons alone, the court below should have struck it out.

In their Brief of Argument in the court below the defendants posed the following two questions:

“(1) Was the learned trial Judge right in holding as he did in his ruling, that the respondent was correct in suing the University of Jos, when the contract the subject-matter of these proceedings was not executed by the University of Jos as required by law

2. Is the Council of the University of Jos a legal person, either by virtue of the University of Jos Act, 1979 or by other Federal Statute which can sue and be sued in its name”

Neither question, in my respectful view, could be said to arise from the lone ground of appeal before the court below. Indeed the plaintiff, in its respondent’s Brief in that court submitted that “Issue No.1 formulated by the defendants/appellants does not arise in this appeal.” This submission was not considered, let alone pronounced upon, by the learned Justices of the court below.

It is trite that issues for determination formulated in a Brief must arise out of and be related to the grounds of appeal relied upon in support of the appeal and any issue not encompassed by nor relating to the ground(s) must be struck out – See: Okoye and ors. v. Nigerian Construction & Furniture Co. Ltd. & ors. (1991) 6 NWLR (part 199) 501; Egbe v. Yusufu (1992) 6 NWLR (Pt.245) 1. In the case on hand not only was the only ground of appeal raised in the appeal to the Court of Appeal incompetent, the issues formulated in the appellant’s brief did not arise out of that ground, incompetent as it was. The court below was therefore, in serious error to entertain the appeal to it.

But that is not all. The defendants in their appellants’ brief in the court below argued issues not raised in the court of trial. Such issues included execution of the contract the subject matter of the action and the admissibility of the contract document. No leave of the Court of Appeal was sought nor obtain to raise these new issues. The court below was therefore wrong to have entertained arguments on them. See: Popoola v. Aderemo (1992) 8 NWLR (Pt.257) 1; Enigwe v. Akaigwe (1992) 2 NWLR 505; Biruwa v. The State (1992) 1 NWLR (Pt.220) 633.

It is significant but not surprising, that the defendants in their respondent’s brief before this court offered no answer to the aspect of the appeal. There is simply no answer to those submissions. The Issues pronounced upon by the court below not arising out of the lone ground of appeal before it and not being issues raised and decided upon by the court of trial and leave of the court below not having obtained to raise such issues (if properly covered by the ground of appeal), the learned Justices of the court below, with profound respect to them, were in error to consider those issues. On this premise alone, this appeal ought to succeed.

Questions 4, 5, 6 & 7:

The questions in this group attack the correctness of the various findings of law made by the court below. These, in summary are:

1. That the 2nd defendant, the council of the University of Jos is not a juristic person that can sue or be sued.
2. That the Vice-Chancellor of the University of Jos is not a legal person.
3. That the Registrar of the University not being a legal person cannot be an agent of the University
4. That the contract, the subject-matter of the action between the parties was not executed by the defendants and the seal of the University was not affixed thereto; it is therefore null and void.
5. That the contract agreement is inadmissible in evidence since it was not executed by one of the parties (that is, the defendants) to the proceedings.

I shall begin with the first three of the above findings. In coming to the conclusion it reached, the court below, per Katsina-Alu, J.C.A. reasoned thus:

“The Vice-Chancellor of the University of Jos is like a Managing Director or a General Manager of a Public Liability Company who is not a legal person. See Agbonmagbe Bank Ltd. v. General Manager. G.B. Olivant Ltd, …………..

Chancellor of the University of Jos nor the council is a legal person. According to the University of Jos Act, only the University is a legal entity.”

Later in the lead judgment of Katsina-Alu, J.C.A., he observed:

“It was contended on behalf of the respondent that by the combined effect of section 1 and 5(1) the 2nd defendant, can be sued in relation to its functions. For this submission counsel relied on the case of Chief Andrew Thomas v. Local Government of Services Board (1965) 1 All NLR 168 at 171-172, which had to deal with the Local Government Law 1965. In that case the Supreme Court held that it was necessary in every case to look at the instrument by or under which the association was established, and that the Local Government Law did not expressly empower the Board to sue and be sued.”

He concluded:

“As to the second defendant in law it is non-existent. To bring an action against it was like suing a dead person who had ceased to exist. In other words it was never alive to sue and be sued. Any such action will in law be incompetent.”

With profound respect to the learned justices of the court below the reasoning and conclusions in the passages above are manifestly wrong.

The University of Jos was established by the University of Jos Act Cap. 456 Laws of the Federation of Nigeria (1990 Edition). Subsections 1 and 2 of Section 1 of the Act provide as follows:

“1(1) There is hereby established a University to be known as the University of Jos (hereafter in this Act referred to as “the University”) which shall be a body corporate with perpetual succession and a common seal.

(2) The University may sue or be sued in its corporate name.”

Section 2(1) creates a council for the University and the office of the Vice-Chancellor among the bodies and offices constituting the University. Section 3(2) which provides for the exercise of the powers conferred on the University by S.3(1) reads thus:

“3(2) Subject to the provisions of this Act and of the statutes and without prejudice to section 7(2) of this Act, the powers conferred on the University by subsection (1) of this section shall be exerciseable on behalf of the University by the councilor by the senate or in any other manner which may be authorised by statute.”

Section 5(1) sets out the functions of the Council of the University in these words:

“5(1) Subject to the provisions of this Act relating to the visitor, the council shall be the governing body of the University and shall be charged with the general control and superintendence of the policy, finances and property of the University, including its public relations.”

Those of the Vice-Chancellor of the University are spelt out in section 7 of the Act, subsection (2) of which provides:

“7(2) Subject to section 5, 6 and 13 of this Act, the Vice-Chancellor shall have the general function, in addition to any other functions conferring on him by this Act or otherwise, or directing the activities of the University, and shall to the exclusion of any other person or authority be the Chief executive and academic officer of the University and ex-officio chairman of the senate.”

Paragraph 5(1) of the First Schedule to the Act creates the office of the Registrar of the University and sets out his functions. It reads:

“5(1) There shall be a registrar, who shall be the Chief administrative officer of the University and shall be responsible to the Vice-Chancellor for the day-to-day administrative work of the University except as regards matters for which the bursar is responsible in accordance with sub-paragraph (3) of this paragraph.”

It is clear from the above provisions of the Act that the council, the Vice-Chancellor and the Registrar are creation of the University of Jos Act and each is assigned specific functions as provided for in the Act and in the exercise of such functions, rights of other persons will most certainly be affected. If in the exercise of their functions the right of anyone is infringed can it be said that any of these functionaries cannot be sued simply because the Act has not expressly stated that they can sue or be sued This question was answered in Thomas v. Local Government Service Board (1965) NMLR 310; (1965) 1 All NLR 174 (new edition) where this court (per Brett, J.S.C.) observed at pages 176-178 of the latter report:

“The Local Government Service Board is created by section 93 of the Local Government Law, which reads as follows-:-

(1) There shall be a Local Government Service Board which shall consist of a Chairman and three other members who shall be appointed by the Governor.

(2) A member of the Local Government Service Board shall, unless he resigns or is removed, hold office for a period of five years from the date of his appointment.

(3) The Governor may remove any member of the Local Government Service Board from his office.

(4) A member of the Local Government Service Board shall be paid such salary or allowance as the Governor in council may determine.’

The Law does not expressly empower the Board to sue or be sued, and the only provisions relating to legal proceedings are contained in section 97, which provides for a claim of privilege for the records of the Board, and section 95, which protects the individual members from proceedings in respect of their official actions. Dr. Aguda, for the Board, drew our attention to the judgment of Mocatta, J., in Knight & Searle v. Dove (1964) 2 All E.R. 307, where the liability in tort of a Trustee Savings Bank was in issue, and in particular to the passage at page 309, where the Judge says that it was common ground between counsel 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 or (b) a right to sue or be sued by that name …… As to (b), namely parties which are not legal personae, but have a right to sue or be sued by a particular name, these may be sub-divided into (i) partnerships: see R.S.C. Ord. 81: (ii) Trade Unions and friendly societies, both of which types have a membership; and (iii) foreign institutions authorised by their law to sue and be sued. It was further common ground that no statute expressly conferred the right to sue and be sued eo nominee on any trustee savings bank or on the bank the fifth named defendant. If in this case there be such right or obligation, it must, therefore, be derived by implication from the relevant statutes.’ Mocatta, J., then proceeded to examine the relevant statutes and in holding that the bank was liable to be sued in tort he attached some importance, as Dr. Aguda has pointed out, to the fact that it was capable of owning, and did own, property, which is a characteristic not possessed by the Board in this case.

It is to be observed that Moratta, J., was summarising the matters on which counsel were agreed and that neither he nor counsel had occasion to consider the position of a body created by statute for the discharge of particular public functions, or the possibility of distinguishing between liability in tort, which is what he had to decide on, and liability to be sued for a declaration. In England an action for a declaration has been held to lie against the National Dock Labour Board: Vine v. National Dock Labour Board (1957) A.C 488; and tribunals of all kinds are proper defendants to actions for the prerogative writs, though it has never been suggested that they are liable in tort. We reject the submission that a Local Government Service Board is not liable to be sued for a declaration, and we do so more readily since the statutory provisions relating to the appellant’s office are such that injustice might result if the Board could not be made a defendant to any kind of proceedings.”

The issue was also exhaustively discussed by this court in Fawehinmi v. N.B.A. & Ors. (No.2) (1989) 2 NWLR (Pt.105) 558. The general law, of course, is that any person, natural or artificial, may sue and be sued in court. There can be no difficulty in determining who a natural person is. The difficulty that has often arisen is as regards who is an artificial person that can sue and be sued.

An artificial person is generally referred to as a corporation. A corporation is defined by the learned authors of Halsbury’s Laws of England paragraph 1201 vol.9 (4th edition) in these words:

“A corporation may be defined as a body of persons (in the case of a corporation aggregate) or an office (in the case of a corporation sole) which is recognised by the law as having a personality which is distinct from the separate personalities of the members of the body or the personality of the individual holder for the time being of the office in question. There are many associations and bodies of persons that are not corporations. Some of these, such as registered friendly societies, may be regarded as quasi corporations, as they have some of the usual attributes of corporations, such as the possession of a name in which they may sue and be sued, and the power (independently of any contract between the members) to hold property for the purposes defined by their objects and constitutions. Partnerships are not usually regarded as quasi corporations, although, if carrying on business in England or Wales, they may sue and be sued in the firm’s name. Subject to the exceptions mentioned above, unincorporated associations cannot sue or be sued in their own name nor (unless their purposes are charitable) can property be held for their purposes otherwise than by virtue of a contract between the members for the time being.”

Going by the above definition and the provisions of the University of Jos Act, particularly section 1 thereof, the University of Jos (1st defendant in these proceedings) is a corporation aggregate having power to sue and liable to be sued, in it’s corporate name.

But it is not only a corporation (aggregate or sole) apart from a natural person, that has the attribute to sue and be sued. 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 not 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 authorised by their own law to sue and be sued, “though not incorporated.

Whether a quasi corporation has the right to sue or be sued eo nomine depends on whether the statute creating it expressly or by implication gives it such power. The University of Jos Act has not expressly conferred on the council of the University nor the Vice-Chancellor such a right to sue or be sued eo sued nomine. If there be such right or obligation, it can only be derived by implication from the Act.

I have earlier in this judgment set out some provisions of the Act whereby functions are conferred on the council and the Vice-Chancellor. Considering the nature of these functions and other powers, duties and responsibilities conferred by other sections of the Act, e.g. the power of discipline over staff and students, it cannot be doubted that in their exercise of these functions and powers rights of third parties would necessarily be affected and it will amount to injustice if such third parties cannot seek redress for any wrong done to them. This is the rationale behind the decision of this court in Thomas v. Local Government Service Board (supra). See also: Willis & Anor. v. Association of Universities of the British Commonwealth (1964) 2 All E.R. 39, 42 per Lord Denning M.R. where he accords juridical personality to a body unincorporated that is given expressly or impliedly by statute the right and obligation to sue and be sued. See also Knight and Searle v. Dove (1964) 2 All E.R. 307 per Mocatta, J. where after a detailed examination of relevant statutes the learned Judge came to the conclusion that, by implication, the London Trustees Savings Bank, a defendant in the case, could be sued in tort. I refer also to Kpebimoh v. The Board of Governors, Western Ijaw Teachers Training College (1966) NMLR 130, a case cited with approval by Obaseki, Karibi- Whyte and Agbaje, JJ.S.C. in Fawehinmi v. N.B.A. & Ors. (No.2) (supra); the board was established by the Education Law of Western Nigeria (applicable to Mid-Western Nigeria) and conferred with statutory functions including the management of educational institutions. The Law, however, did not expressly give it the right and obligation to sue and be sued. The plaintiff complained of the breach by the Board of his contract with the Board. Arthur Prest, J. after referring to the dictum of Lord Halsbury in Taff Vale Ry Co, v. Amalgamated Society of Railway Servants (1901) A.C.426, 436 observed at page 133 of the Report, and quite rightly in my view:

“Although in the Taff Vale Case emphasis was laid on an unincorporated body owning property, in my view that decision did not lay down the rule that an unincorporated body without property cannot sue or be sued for injury done to others. I think the sum total of that decision is that an unincorporated body which is empowered by the Legislature to do certain things which can result in injury to others must be taken to have impliedly the power to sue and be sued in a court of law.”

Applying that law to the facts of tile case before him, the learned Judge went on to say:

“The question I have to consider in this case therefore appears to me on all fours with the issues raised in the Taff Vale’s Case, i.e. what, according to the true interpretation of section 53 of the Education Law, Cap.34 has the Legislature enabled the Board of Governors of the Western Ijaw Teacher Training College to do, and what, if any, liability does the Board incur for wrongs done to others in the exercise of their authorised powers under the Instrument of Management granted to them

The Instrument of Management empowers the Board to do, amongst other things, the following to wit:

1. Be responsible for the general financial management of the institution:
2. Prepare estimates revenue and expenditure;
3. Incur expenditure within the limits of the estimates without the previous consent of the minister;
4. Arrange for the collection of fees and other revenues and administer the disbursement of expenditure approved by the minister.

From the statutory functions of the Board therefore, I am of the opinion that the Board, though it is not an incorporated body, is capable of being sued as a legal entity distinct from its members. I am further fortified in this view by the decision of the Federal Supreme Court in the case of Chief Thomas v. Local Government Service Board (supra) in which that court held that –

‘The submission that a statutory body with functions like those of the Local Government Service Board is not liable to be sued for a declaration must be rejected.”

In the Taff Vale case, Farwell, J. had in the court of trial set the law thus:

“Now, although a corporation and an individual or individuals may be the only entity known to the common law who can sue or be sued, it is competent to the Legislature to give to an association of individuals which is neither a corporation nor a partnership nor an individual a capacity for owning property and acting by agents, and such capacity in the absence of express enactment to the contrary involves the necessary correlative of liability to the extent of such property for the acts and defaults of such agents. It is besides the mark to say of such an association that it is unknown to the common law. The legislature has legalised it, and it must be dealt with by the courts according to the intention of the legislature.”

This statement of law was rejected by the Court of Appeal. On further appeal to the House of Lords Farwell, J’s judgment was restored. Lord Halsbury said:

“My Lords, in this case I am content to adopt the judgment of Farwell, J., with which I entirely concur; and I cannot find any satisfactory answer to that judgment in the judgment of the Court of Appeal which overruled it. If the Legislature has created a thing which can own property, which can employ servants, and which can inflict injury, it must be taken, I think, to have impliedly given the power to make it suable in a court of law for injuries purposely done by its authority and procurement.”

Another case I will refer to is the decision of our Court of Appeal in Provost, Alvan Ikoku College of Education v. Amuneke (1991) 9 NWLR 49, 58 where it was contended that the provost, Registrar and Academic Board of the Alvan Ikoku College of Education could not be sued. Kolawole, J.C.A. delivering the ruling of the court (with which I was in full agreement) observed:

“I shall now examine the complaint which is the basis for the proposed appeal. It is that the learned trial Judge erred in holding that the defendants are legal persons and proper defendants who can be sued.

Section 3(1) of the Alvan Ikoku College of Education Edict, 1973 (Edict No.II of 1973) provides that the College shall be a body ‘corporate name. Section 20 established the Academic Board; section 24 as amended by Edict No. 16 of 1974 provides for the duties of the provost of the college who shall be the academic and executive head of college, and shall be responsible for the day to day administration of the college. Section 5A of Edict No. 16 of 1974 which amended the principal Edict provides for the office of the Registrar of the college; it provides as follows:-

‘There shall be a Registrar of the College who shall be the Secretary to the council and shall conduct the correspondence and record all the proceedings of the council and perform such other duties as the council may from time to time direct.’

It is clear that section 20 and section 24 of Edict No. II of 1973 as amended by Edict No.16 of 1974 which established the offices of the Provost, the Registrar and the Academic Board listed various functions which the various offices are empowered to discharge though they are incorporated. It is therefore reasonable to imply that these bodies in the discharge of these functions will exercise the rights of legal persons, and will, if the nature of the duty discharged so involved, be suable in the courts, i.e. possess juristic personality. Fawehinmi v. Nigerian & ors Association & Ors. (No.2) (1989) 2 NWLR (Pt.105) 558 at 639 per Karibi-Whyte, J.S.C.”

From all I have been saying above, I hold the view that upon the reading of the University of Jos Act as a whole, both the council of the University and the Vice-Chancellor, are by implication, given juridical personality that enables each of them to sue and be liable to be sued eo nomine. The learned trial Judge had held that the second defendant, that is, the council of the University “can be sued and is a proper party to this action.” I entirely agree with this judgment of Ahinche, J. and find myself unable to accept the judgment of the Court of Appeal which held to the contrary.

Having concluded as above, I must necessarily disagree with the decision of the court below which held that the two defendants were not proper parties to the present proceedings. The court, per Katsina-Alu, J.C.A. held at page 101 of the record:

“The only person who can be an agent must be a legal person who can enter into contract agreement. In the con of this suit the Registrar cannot be an agent of the University. In my judgment the contract agreement is null and void and since one of the parties thereto is not a legal person and in consequence that contract cannot be binding on the University. This is so because under the University of Jos Act No. 82 of 1979, it is only the said University which can sue and be sued, not even the council.”

To hold as that court did that the Vice-Chancellor and the Registrar were not agents of the University when executing the contract with the plaintiff would be to overlook the clear provisions of the Act which, on a reading as whole, would leave one in no doubt that both of them were and remain agents of the University in the discharge of their official duties. The relevant provisions of the Act have already been set out in the earlier part of this judgment. I need not repeat them here. The general law is that a contract made by an agent, acting within the scope of his authority for a disclosed principal is, in law, the contract of the principal, and the principal and not the agent is the proper person to sue and be sued upon such contract. The exceptions to this general law do not apply here and therefore need not be discussed. The power to enter into contracts and to erect, provide, equip and maintain libraries, laboratories, lecture halls, halls of residence, etc. is made among the powers conferred on the University by section 3(1) of the Act. In the exercise of its powers the University must, of necessity, act through its officials who are its agents. Suffice it to say, therefore, that I agree with the finding of the learned trial Judge that both the Vice-Chancellor and the Registrar were, in respect of the contract with the plaintiff, agents of the defendants. As the contract is not one that is required by law to be under seal, it is not void for the reason that the seal of the University was not affixed thereto, as was erroneously held by the court below.

In view of the conclusions I have just reached it goes without saying that the finding that the contract with the plaintiff was not executed by the defendants and that it is consequently null and void is erroneous and must be set aside.

I must not end this judgment without making some observations on the conduct of the defendants in this case. Parties filed and exchanged their respective pleadings and subsequently amended same. The case eventually proceeded to trial and plaintiff, after calling its witnesses, closed its case. The defence opened. It was at this stage that the defendants brought their application praying the trial court to dismiss or strike out the action for lack of competence. At the hearing of their application they raised issues clearly out of the purview of their prayer. The learned trial Judge should not have entertained that application but should have proceeded with the trial to conclusion. See: Odive v. Obar (1974) 2 S.C.23 31 where Elias, C.J.N. delivering the judgment of this court said:

“We think that the learned trial Judge was clearly in the wrong when he decided to uphold the preliminary objection of counsel for the defendants at the particular stage in the proceedings when the Statement of Defence had already been filed and the issues joined between the two parties. The learned trial Judge should have pointed out to counsel for the defendants that the preliminary objection should have been made after the delivery to him of the Statement of Claim and before filing his Statement of Defence. Another important point in this appeal is that, once issues had been joined between the parties including an allegation by the 1st defendant that the marriage between him and 2nd defendant had been made under customary law, it was wrong to entertain a preliminary objection without any further evidence on the merits.”

They failed in their application and went on appeal to the court of appeal where they repeated their delay tactics by raising issues completely out of the range of the only ground of appeal filed by them and on issues not even covered by the pleadings. The court of appeal in turn did not help matters by going on a voyage of its own in considering issues not joined by the parties on their pleadings such as the admissibility of the contract document. The total effect of all these is that a case that could have been concluded by the end of 1986 or early 1987 remains to be concluded in January. The proper stage at which the defendants ought to have raised objection to their being sued was at the very early stage.

They could have entered a conditional appearance and contest the issue before pleadings were filed and trial commenced. See: Adigun v. Ayinde & Ors. (1993) 8 NWLR 516. The main issues raised by them both in the trial court and in the Court of Appeal are not issues to be tried on the motion brought by them but issues essentially for trial on the pleadings. To have waited up to the stage they raised their objection is a tactic employed to delay the conclusion of the trial and this, in my respectful view, is an abuse of the process of the court. They should not have been allowed to use the court’s process to stultify the early adjudication of the action. As it is now, the case will have to be remitted to the court of first instance for the completion of the trial. I rather say no more on it.

In conclusion, I allow this appeal, set aside the judgment of the court below and restore the ruling of the trial court dismissing defendants’ application to strike out or dismiss the suit. The case is remitted to the trial court for trial to be completed and I direct that the concluding part of trial be embark upon with utmost despatch.

I award to the plaintiff N1,000.00 costs of this appeal and N800.00 costs of the proceedings in the Court of Appeal.

SC.74/1992