Mr. Solomon Oboba V. Chief Registrar, High Court Of Justice Delta State & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A. (Delivering the leading Judgment)

The Appellant in this appeal had commenced proceedings at the lower court claiming the sum of N1, 400,000.00 as outstanding balance of the sum of N3, 500,000.00 which he had paid in respect of a property advertised for sale by the Respondents which sale failed; and interest thereon.

The matter was placed on the undefended list. Following a notice of preliminary objection raised by the Respondents that the 1st and 2nd Respondents were non-juristic persons and that there was no claim against the 3rd Respondent, the lower court heard arguments on the objection and in its ruling struck out the Suit on the ground that the Respondents were non-juristic persons. This appeal is against that ruling striking out the Suit.

Two Grounds of Appeal were filed which, without their particulars, read:

“(1) The learned trial Judge erred in law when His Lordship suo moto (sic) considered the issue of whether the Attorney-General of Delta State is a juristic person and came to a conclusion that it is not without calling on the parties to address court on the issue.

(2) The learned trial Judge erred in law when His Lordship held that the Defendants/Respondents are not juristic persons capable of been (sic) sued and thereby came to an erroneous concluding (sic) in striking out the entire Suit.”

Two issues were agreed by the parties as calling for the determination of this court: They are as formulated by the learned counsel for the Appellant, thus:

“(i) Whether the learned trial Judge was right when His Lordship suo moto (sic) considered and determined the issue whether or not the 3rd Defendant/Respondent (Attorney-General and Commissioner for Justice Delta State) was a juristic person without calling upon the parties or their counsel to address court on same.

(ii) Whether the learned trial Judge was right when His Lordship held that the Defendants/Respondents are non-juristic persons and proceeded to strike out the Appellant’s case.”

In his argument on issue No. 1 above, learned counsel for the Appellant, Mr. Ovwamuedo, in his brief, submitted that it is a cardinal principle of our legal system that before a man’s cause is decided upon, he must be heard or given reasonable opportunity to be heard. He contended that the lower court held that the 3rd Respondent was not a juristic person when none of the parties was heard on the point whether or not the 3rd Respondent was a juristic person. The lower court, counsel argued, did not even raise the issue in the course of the arguments on the preliminary objection nor did the Respondents, in their objection, raise that point as shown in the notice of preliminary objection.

In his reply on this issue, learned counsel for the Respondents, Mr. Otite conceded the point and agreed with the Appellant’s counsel that the learned trial Judge was in error in holding that the 3rd Respondent was not a legal personality when that issue was not before him.

This concession is sufficient to dispose of this issue in favour of the Appellant in his complaint on Ground One of the Grounds of Appeal. However for purposes of emphasis, it is important to observe as learned counsel for the Appellant did, that the notice of preliminary objection did not raise any objection to the legal personality of the 3rd Respondent. All that the notice of preliminary objection said in relation to the 3rd Respondent was that there was no claim or complaint against the 3rd Respondent.

No argument was raised by either of the parties on that point and the lower court did not even raise it, yet from the blue, as it were, the learned trial Judge at the ruling stage, and on his own, rushed to the conclusion that the 3rd Respondent was not a juristic person – a conclusion that is both falacious and erroneous in the face of the clear Provisions of Section 195 (i) of the Constitution of the Federal Republic of Nigeria 1999. This falacy and error and my earlier observations on the point, resolve the first issue in favour of the Appellant thus making Ground One of the Grounds of Appeal a success.

On the second issue, learned counsel for the Appellant in his brief argued that the Respondents were juristic persons by virtue of Sections 54 and 56 (1) of the High Court Laws of Bendel State 1976 applicable to Delta State and Sections 3 and 4 of the Sheriffs and Civil Process Law of Bendel State 1976 both of which laws create the offices of the Chief Registrar and sheriff with functions and duties assigned to him.