IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

 

14^TH DAY OF AUGUST, 2024                                         

SUIT NO. NICN/CA/11/2021

BETWEEN:

Andrew Ubana …………………………………………………………….. Claimant/respondent

AND

The Federal Ministry of Environment ……………………..…… defendant/respondent

RULING.

1.      This deal with motion on notice dated 13/5/2024 and filed on the same date. The motion on notice was brought pursuant to the provisions of order 17 rules 1, 3, 5, 6. 7 and 9 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and under the inherent jurisdiction of the court. In the motion on notice the defendant/applicant is praying for striking out of this suit for want of jurisdiction.

2.      The motion on notice is supported by a three paragraphs affidavit sworn to by one Ibrahim Salisu Sani, an Administrative Officer in the office of the defendant/applicant.

3.      The gist of the deposition contained in the affidavit in support is that the defendant herein, Federal Ministry of Environment is unknown to law, i.e. is not a juristic person. A written address was also filed along with the motion on notice. In oral adumbration before the court Pricilla T. Williams, Esq; counsel for the defendant/applicant informed the court that he is relying on the depositions contained in the affidavit in support. Counsel also adopted the written address as his argument. In the written address a single issue was formulated for determination, to wit:-

Whether the defendant, Federal Ministry of Environment is a juristic person capable of being sued in a court of law. 

4.      In arguing the sole issue for determination, counsel submitted that for an action to be competent in court there must be a competent defendant and competent claimant who can be sued and capable of maintaining an action. It is the contention of counsel that the defendant/applicant on record before the court is not a juristic person in the eye of the law. As it is neither a natural or artificial person, nor is it a creation of statute. Counsel refers to definition of juristic person in the case of Akas v Manager & Receiver of Estate of Anwadike (2001) JELR 53081 (CA).

5.      Counsel continued his submission that based on the above decision the defendant/applicant in this case is not a juristic person and there is no law conferring juristic personality on the defendant/applicant. Counsel further refers to section 147 of the Constitution of the Federal Republic of Nigeria, 1999, as amended and submitted that Federal Ministry of Environment is only a nomenclature attached to the portfolio of the Minister of Environment. Counsel contended by the provision of the constitution is only the Minister that is referred to and not Ministry. Counsel refers to the decision in the case of S. D. Agoola & Ors v Saibu & Ors. (1991) 2 NWLR (Pt.175) 566, where it was held Federal Ministry of Science and Technology is not a juristic person in law. Counsel further refers to the case of Abubakar v Yaradua (2009) ALL FWLR (Pt.457) 49, where it was held that only juristic persons can be sued.

6.      It is the contention of counsel while placing reliance on the case of Njamanze v Shell BP Port-Harcourt (1966) LLJR-SC, that where a party is not a juristic person it robs court of jurisdiction and the fate of that case is striking out. Counsel urged the court to strike this suit.

7.      Counsel maintained that the effect of suing non-juristic person in this case, is that, this suit is incurably defective and not even an amendment can cure the defenct. On this contention counsel relied on the case of SPDC & Anor. v PESSU (2014) LPELR-23325-CA).

8.      In concluding his submission counsel urged the court to strike out this suit for lack of jurisdiction due suing a non-juristic person.

9.      In opposition to the objection of the defendant/applicant’s motion on notice, the claimant/respondent filed a counter affidavit on 5/6/2004, wherein it stated that Federal Ministry of Environment is a body known to law. Ikpi Usani Onen, Esq; counsel for the claimant in his oral submission before the court relied on the depositions in the counter affidavit and adopted the written address filed along with the counter affidavit as his argument. Counsel urged the court to overrule the objection of the defendant/applicant.  In the written address a single issue was submitted for resolution to wit:-

Whether a Ministry as in the instant case, Federal Ministry of Environment is a competent and proper party before a court.

10. In arguing the sole issue for determination, counsel submitted that anybody created with power to inflict  injury and discipline its members, is deemed to possess the status of suable in law. Counsel continued his submission that it is truism that the defendant/applicant as a creation of statute possesses the power to inflict injury as done to the claimant. It can also employ and discipline its members where in default and as such capable of suing and being sued.

11. Counsel further submitted that where a statute set up a body or an organization in such a way that its activities can affect the rights of members of the public, such a body will be held to be juristic. In support of this view counsel relied on the case of Thomas v Local Government Service Board (1965) NMLR 310; Carlen Nig. Ltd v University of Jos & Ors. (1994) 1 SCNJ 72. Counsel submitted with respect to Ministry which is a creation of statute is clothed with legal personality to sue and be sued. To support his submission counsel refers to the decision of this court in the case of Hon. (Barr) Nnandi Eluwa & 13 Ors v Umuahia South Local Government & 2 Ors (2013) 3 NLLR (Pt.114) 376. Counsel also relied on the case of Akas v Manager Receiver of Estate of Anwadike (supra), also relied by the defendant/applicant and submitted that the case is very apt to the case of the claimant/respondent. Counsel also refers to section 147 of the constitution as amended and submitted that it is inappropriate to this case. Counsel also refers to section 318 of the constitution interpretation, where ‘civil service of the federation’ means service of the federation in civil capacity as staff of the office of the president, vice president, a ministry or department of the government of the federation assigned with the responsibility for any business of the government of the federation. Counsel contended it is preposterous for the defendant/applicant to be heard to say that the defendant is not a juristic personality capable of suing or being sued. Counsel also contended that the case of Agoola & Ors. v Saibu & Anor (supra) relied by defendant/applicant is inappropriate to this case. While the cases of Abubakar v Yaradua (supra) and Njamanxe v Shell BP Port-Harcourt (supra), are all in support of claimant/respondent’s position.

12. It is also the submission of counsel that bodies created under the constitution as in the instant case where the defendant is creation of the constitution with statutory  function is a juristic person.

13. Counsel submitted that the court of appeal has thrown more light on who can sue or be sued in the case of Federal Medical Center, Ado Ekiti v Shuaibu Adewale Alabi (2013) 31 NLLR (Pt.89)161, where it was held that ‘where a body is created with power to inflict injury, employ and discipline its members, it must be deemed to possess the status and be sue-able in law.

14. Counsel has also argued that the defendant/applicant has waived its right to raise objection, since, it failed to do so before the claimant led evidence and tendered exhibits.

15. In concluding his submission counsel urged the court to dismiss this objection as it was brought in bad faith.

COUNRT’S DECISION:

16. I have carefully considered the motion on notice and its supporting affidavit, as well, as, the counter affidavit in opposition. I have equally considered the written and oral submission of counsel for both parties in support of the position of their respective clients.

17. It is clear to me that the simple issue that the objection of the defendant/applicant raised is on the propriety of suing the defendant/applicant in this suit, as counsel argued, is not a juristic person that can in law be sued, as the defendant is not a creation of any statute.

18. Let me say from the onset that the law attributes legal personality to natural and duly registered persons. In other words, the law attributes juristic personality that is the capacity to maintain and defend actions in court, to natural persons and artificial persons or institutions. They are known to law as legal persons. The implication is that only natural persons or a body of persons whom statutes have, either expressly or by implication, clothed with the garment of legal personality that can prosecute or defend law suits by that name. see Olu of Warri v. Esi (1958) SCNLR 384; Agbonmagbe Bank v. G. B. Ollivant Ltd. (1961)2 SCNLR 317; Ataguba & Co. v. Gura Nigeria Ltd.(2005) 8 NWLR (Pt. 927) 429; Maersk Line v. Addide Investments Ltd. (2002) 11 NWLR (Pt. 778) 317; Reptico S. A. Geneva v. AfriBank Nig Plc. (2013) 14 NWLR (Pt. 1373) 172; A.-G., Fed. v. ANPP (2003) 18 NWLR (Pt. 851) 182; Alhaji Mailafia Trading and Transport Co. Ltd. v. Veritas Insurance Co. Ltd. (1986) 4 NWLR (Pt. 38) 802; Admin./Exec., Estate of Abacha v. Eke-Spiff (2009) 7 NWLR (Pt. 1139) 97; Bank of Baroda v. Iyalabani Coy Ltd. (2002) 13 NWLR (Pt. 785) 551; Randle v. Kwara Breweries Ltd. (1986) 6 SC 1; Calabar Municipal Govt. v. Honesty (2022) 7 NWLR (Pt.1817) 410, Carlen (Nig.) Ltd. v. Unijos [1994] 1 NWLR (Pt323) 631.

19. The law is also trite that naming a non-juristic person as a party is not a misnomer and amending the name to substitute a juristic person will not be allowed by the court; as so doing would amount to amending an invalid and void process. There cannot be an amendment of the name of an inappropriate party before a court especially where the juristic personality of the party sought to be amended is deficient. Therefore, naming a non-juristic person as a defendant in a suit is not and cannot be treated as a misnomer, and where this occurs, the name of the party cannot be amended to substitute a juristic person. Naming a non-juristic person is different from a misnomer. Once, it is established that a party lacks juristic personality; the question of amending the name would not arise because so doing would amount to awaking a dead person, which can never happened.

20. As pointed out earlier the general law is that any person, natural or artificial may sue and be sued in court. see Fawehinmi v. N.B.A. (No.2) (1989) 2 NWLR (Pt.105) 558. This means 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: (i) a legal persona under the name by which it may sue or be sued or; (ii) a right to sue or be sued by that name, for example, partnerships, trade unions, friendly societies and foreign institutions authorised by their law to sue and be sued. See Thomas v. Local Government Service Board (1965) NMLR 310; Gani Fawehnmi V NBA (NO.2) (supra).

21. Now, looking at the processes before the court, can it be said that the defendant/applicant in this case has no juristic personality to make it capable of being sued.

22. It is now settled law that if the legislature has created a thing or body with functions and powers conferred on it or which can own property or which can employ servants or which can inflict injury, the legislature must be taken to have impliedly given it the power to make it suable in a court of law for injuries done by its authority and procurement. See Agoola v Saibu & Another (supra).

23. The counsel for the claimant has in his submission in trying to convince the court that the defendant/applicant is juristic person, contended that the defendant/applicant in this case is a creation of statute, but has not referred this court to the statute which created the defendant/applicant as an artificial entity clothed with requisite power to sue and be sued. Counsel has also argued that the defendant/applicant has power to employ and discipline its employees, therefore, it has legal personality, but the claimant has not even established that he was an employee of the defendant, so where is the power to employ.

24. The question whether a corporation or quasi corporation has the right to sue or be sued eo nomine has been settled by the apex court, it depends on whether the statute creating it expressly or by implication gives it such power. In the case at hand no statute has been referred to the court that establishes the defendant/applicant in this case which has either expressly or impliedly clothed the defendant/applicant with legal personality. See Carlen (Nig.) Ltd. v. Unijos (1994) 1 NWLR (Pt323) 631. S 318

25. In view of lack of clear provisions of the law establishing the defendant/applicant in this case with requisite power whether expressly or impliedly to sue and be sued, I have no choice than to come to the conclusion that the defendant/applicant in this case is not a juristic person that can sue and be sued in law, as did the Court of Appeal in the case of Agoola & Ors v Saibu & anor. (supra). See also Agbonmagbe Bank Ltd. v. General Manager, G.B. Ollivant Ltd. (1961) 1 All N.L.R. 116; Fawehinmi v. Nigerian Bar Association (No. 2) (1989) 2 N.W.L.R. (Pt.105) 558; Agoola & Ors. v Saibu & Anor (supra).

26. Counsel for the claimant/respondent has in his submission berated the filing of this application at the stage when court has fixed the matter for adoption of final written addresses of the parties.

27. It is disgusting and condemnable practice for counsel for the defendant/applicant to refused to raise objection at early stage of the matter and waited till after the matter is ripe for adoption of final written addresses. This mode of practice is against all know rules that encourages counsel to ensure early raising of objection more particularly knowing fully well that the objection will in one way or the other terminate proceedings. The deliberate delayed in bringing this objection until toward the end of the matter, is deprecated. Counsel should always bear in mind that time is precious and is for serious matters, if counsel knows that he has an objection that may terminate life of proceedings such objection must be taken timeously in order not to waste the precious time of the court on hearing that may at the end be a wasteful venture.

28. The Supreme Court was faced with a similar situation in the case of Carlen Nig. Ltd v Unijos (supra), when it observed that;

‘’It is not right in law where after the plaintiff has closed its case and the defendant has opened his defence, as in the instant case, for the name of a party to be struck out. Ekpenyong v. Nyong (1975) 2 S.C. 71.

29. The apex court went on to state:-

The proper stage at which a defendant should raise a preliminary objection to the plaintiff's suit should either be at the inception or early stage of the proceeding and it should be by the defendant entering a conditional appearance and contesting the issue before the statement of defence is filed and trial commenced. Odive v. Obor (1974) 2 S.C. 23 at 31; Adigun v. Ayinde (1993) 8 NWLR (Pt.313) 516’’.

30. The Supreme Court in the said matter categorically stated that it is an abuse of court process for the defendant not to raise his preliminary objection at the early stage of the proceeding and to wait till the hearing of the case has commenced.

31. However, as I am being faced with only one defendant the only option opened to me is to strike out the case due to lack of juristic personality on part of the defendant. This suit is hereby accordingly struck out.

32. I make no order as to cost.

 

Sanusi Kado,

Judge.

REPRESENTATION:

Ikpi Usani Onen, Esq; for the claimant/respondent

Pricilla T. Williams, Esq; for the defendant/applicant