Chief Andrew Thomas V Local Government Service Board (1965)

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BRETT, J.S.C. 

The appellant in this case ,Chief Andrew Thomas, was appointed to the office of President of the Oyo Divisional Grade A Customary Court in 1958, and discharged the functions of the office continuously until May, 1964, when he received a letter from the Local Government Service Board giving him one month’s notice of the termination of his appointment. In these proceedings his claim, as amended, is for “a declaration

(i) that the purported termination of the plaintiff’s appointment as the President of the Oyo Divisional Grade A Customary Court is illegal and ineffective; and

(ii) that the plaintiff is and has at all material times been entitled to receive the salaries and emoluments attaching to the said office.”

The first ground on which the claim is resisted is that the Board is not a person capable of suing or being sued, and if this submission succeeds the action must fail in limine. In rejecting it the trial judge relied largely on section 2 of the Interpretation Law, which provides that “ `person’ includes any company or association or body of persons corporate or unincorporated”, but we do not consider that “a Law to make provision for the Construction of Laws and of the Terms and Provisions usually adopted therein” is designed of itself to confer the power to sue and be sued on every unincorporated association of persons. It has been pointed out that this definition reproduces that in section 19 of the English Interpretation Act, 1889, which has never been held to have the effect suggested and was expressly said in Davey v. Shawcroft [1948] 1 All E.R. 827, not to make an unincorporated body of persons liable to criminal proceedings. In our view it is necessary in every case to look at the instrument by or under which the association is established.

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 98, 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 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

(c), 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