Elder S. Akpan & Ors. V. Rev. Nse Umoren & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

This is an interlocutory appeal against the decision of the Federal High Court sitting at Uyo delivered on the 8/11/06 in suit No. FHC/UY/CS/4/05 filed by the Respondents herein against the Appellants. The Federal High Court had in the said decision, overruled an objection challenging its jurisdiction to entertain the suit raised by the 2nd and 4th Respondents, who being dissatisfied with the decision, filed the notice of the appeal on the 25/1/07 against it. The record of the appeal was received in the court on 9/7/07 and the Appellants’ brief of argument was filed on the 8/10/07.

There is no record that the Respondents had filed the Respondents, brief of argument and on the 15/11/11, the court granted the application by the Appellants filed on the 6/6/11 and ordered that the appeal be set down for hearing on the Appellants brief alone. The appeal was set down accordingly for hearing on the 12/01/12 and tater to the 30/1/12.

On the 30/1/12, after the court was satisfied that from the certificate of service by the Bailiff of the court that the Respondents’ counsel duly served with the hearing notice of the appeal for that day, proceeded with the hearing in the absence of any excuse communicated to it by the learned counsel for the Respondents. The learned counsel for the Appellants adopted and relied on the Appellants’ brief as his arguments in support of the appeal which he urged us to allow.

From the three grounds contained in the Appellants notice of appeal, Mr. Amanim Akpabio, Esq, the learned counsel who settled the Appellants’ brief formulated two (2) issues which he called “key issues” for determination in the appeal. They are:-

“(a) Whether the Federal High Court had jurisdiction to entertain an action by a standing committee of an incorporated church brought for the benefit of the 6th plaintiff who is unknown to law.

(b) Whether the learned Judge of the Federal High Court could ignore the statutes and Judicial precedents cited by Counsel to the Appellants/Defendants which were on all fours with the case.”

In his arguments on the issue one which was indicated to have been distilled from grounds 1 and 2, learned counsel said it was only the Registered Trustees or Incorporated Trustees of Qua Iboe Church had the legal capacity to sue or be sued and that the 6th respondent is a name or body unknown to law. It was his submission that the law is settled that for a court to exercise jurisdiction, the proper parties must be present to initiate the action. Relying on cases which include OJUKWU v OJUKWU (2001) FWLR (41) 1948; TRUSTEES, P.A.W. WC v TRUSTEES, A.A.C. (2002) 15 NWLR (790); NOBLE v PAROCHIAL COMMITTEE OF ST. JOHN CHURCH, AROLOYA, LAGOS (1957) LLR, 45 as well as Sections 675(2) 674(1) (9) and 679(1) of the Companies and Allied Matters Act (CAMA) he maintained that the Respondents lacked the competence to institute and maintain the action against the Appellants and so the Federal High Court had no jurisdiction to entertain it. According to him, the Federal High Court prematurely considered the constitution of the church which went to the merit of the case and that its decision had the effect of frustrating the provisions of CAMA, which provided for the procedure in dealing with such complaints. Many cases were cited on who the law recognizes as competent to sue or be sued and its effect on the jurisdiction of a court which cannot be conferred or waived by the parties. We were urged to resolve the issue in Appellants’ favour.

The submissions on the Appellants’ issue 2 are to the effect that the Federal High Court had the duty to consider the laws and judicial authorities cited by the learned counsel in the determination of the objection, but it failed to do so. Reference was made to the cases of DALHATU v TURAKI (2003) 110 LRCN 1572 at 1574 and UNILAG v OLANIYAN (2001 FWLR 778 and it was submitted by counsel that the Federal High Court was wrong in ignoring the decisions cited before it in the determination of the objection raised by the Appellants. On the whole, we were urged to allow the appeal, set aside the decision of the Federal High Court and uphold the objection of the Appellants.

Even though this appeal is uncontested because the Respondents did not file a brief of arguments to respond or react to the issues canvassed in the Appellants’ brief and therefore deemed to have conceded them, it does not automatically succeed on the ground of the absence of the Respondents’ brief. The success of an appeal is not determined by the absence of the respondents’ brief, ipso facto, but by the strength and potency or viability of the case made out by the Appellant in the issues canvassed before the court. Consequently, even in the absence of the Respondents’ brief of arguments, the court still has the duty to consider whether on the basis of the arguments proferred by the Appellants in the Appellants’ brief of argument, the appeal is sustainable in law. See JOHN HOLT v OPUTA (1996) 1 NWLR (470) 101; AKAS v MANAGER & RECEIVER (2001) 8 NWLR (715) 436 at 442; SOFOLAHAN v FOLAHAN (1999) 10 NWLR (621) 86.

In the above premises, I intend to consider the merit in law, of the submissions by the Appellants in support of the appeal.

As can easily be observed, the crucial issue for determination in the appeal is whether or not the Respondents had the legal capacity and competence to sue or initiate the suit against the Appellants before the Federal High Court. The legal competence of a plaintiff to initiate an action before a court of law is an issue which invariably affects or goes to the judicial competence of the court to entertain and determine such an action.

Where for instance, a plaintiff lacks the legal status, standing or capacity in law to sue, undertake or initiate an action in a court of law, a court before which such a party purports to initiate or undertake an action would ‘contiguously lack the judicial authority and power to entertain such an action or suit in law. This is because in such a situation, there would be no proper plaintiff that is cognizable in law that was capable of invoking the requisite judicial jurisdiction of the court over such a suit or action. The action would therefore not be properly constituted and the court would lack the competence or jurisdiction to entertain it. A complaint about the proper constitution of an action raises the issue of competence of the action which by necessary implication also raises and touches the issue of the court’s jurisdiction to entertain the action. See OLORIODE V. OYEBI (2004) 1 SCNLR 390; AMUDA v OJOBO (1995) 7 NWLR (406) 170; OFIA v EJEM (2006) ALL FWLR (324) 1816; PLATEAU STATE v A-G EDERATION (2006) 3 NWLR (967) 346 at 423. Being an issue that raises and touches the jurisdiction of the court, the law requires that it be determined or decided first because of its vital and instrinsic nature in judicial proceedings since its absence renders the entire proceedings null and void, ab initio. See OGUNMOKUN V MIL. ADM. OF OSUN STATE (1999) 3 NWLR (594) 261; F.G.N. v OSHIOMOLE (2004) ALL FWLR (2009) 972; N.P.A. v EYAMBA (2006) ALL FWLR (320) 1022.

Now, the law in settled that only natural or artificial persons can initiate actions in courts of law. In other words, only persons natural or artificial with the requisite juristic personality can initiate a legal action in court, to sue or be proceeded against in such an action to be sued. It is only such persons that are in law, persons who have the legal capacity to be parties to an action initiated before a court of law. See A-G, FEDERATION v ANPP (2004) 114 LRCN 267 cited by counsel for appellants. NDOMA-EGBA v GOVT. OF CROSS RIVER STATE (1991) 4 NWLR (188) 773; PROVOST, ALVAN IKOKU COLLEGE OF EDUCATION v AMUNEKE (1991) 9 NWLR (213) 49; ATAGUBA & CO v GURA (NIG.) LTD. (2005) 2 SC (PT 1), 101. 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 each with the jurisdie or legal capacity to sue or be sued. As a general principle of law, when either of the parties is not a legal person, either natural or artificial, then the capacity or competence to initiate or defend the action as the case may be, would be absent and the action is liable to be struck out as being incompetent. AGBONMAGBE BANK LTD. V GEN. MANAGER, G.B. OLLIVANT LTD, (1961) ALL NLR 116; PROVOST, ALVAN IKOKU COLLEGE OF EDUCATION (supra); OJUKWU v OJUKWU (supra).