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In The Supreme Court of Nigeria

On Friday, the 25th day of October 1974

 

Before Their Lordships

 

George Baptist Ayodola Coker

......

Justice, Supreme Court

Atanda Fatayi-Williams

......

Justice, Supreme Court

Ayo Gabriel Irikefe

......

Justice, Supreme Court

 

S.C. 370/1973

Between

 

Chief Aderibigbe Jeoba

.......

Appellant

 

And

 

Osho Owonifari

.......

Respondent

 

 

Judgement of the Court

Delivered by

Atanda Fatayi-Williams J.S.C

 

 

In this case, the plaintiff's claim in the Akure High Court against Chief Oniran of Orin reads:

 

(1)     declaration of title to the piece or parcel of farmland situate and being at Ese Itaoloke in Ode Ekiti  and more particularly described on the plan to be filed later;

 

(2)      50 general damages for trespass committed by the defendant, his servants and/or agents on the said land;

 

(3)     injunction restraining the defendant, his servants, agents and all those deriving title through him from committing further acts of trespass.

 

At the hearing on 27th April 1964, both the plaintiff and the defendant were present and were both represented by counsel. Pleadings wee ordered and were duly delivered. Paragraph 2 of the plaintiff's statement of claim reads:

 

2.       The defendant is the head of the Orin Quarter of Ikole-Ekiti and is being sued as representing the said Orin Quarter of Ikole-Ekiti.

 

This paragraph was admitted by the defendant in his statement of defence in which he averred further in paragraph 15 as follows:

 

15.        The defendant had exercised dominion over the land by placing tenants on the land for over 15 years and these tenants planted cocoa, kola nut trees and cash crops. All other averments in paragraph 16 are denied.

 

On three occasions between 13th November, !967, and 7th May, 1968, when the case was listed before the court for mention, Mr. Ajibade of counsel appeared for the defendant. At the hearing on 4th December 1968, the court was informed that the defendant was ill. On 15th May, 1969, the court was told by learned counsel that he had died. Consequently, at the hearing on 3rd November, 1969, learned counsel for the defendant observed as follows:

 

This action is taken in a representative capacity but the Oniran of Orin is dead. The person in court is only one of them. Mr. Ojulape promised to bring someone before the court, against whom they can proceed. He said this about five months ago and nothing has been done. It appears the plaintiffs are not willing to proceed with their case. If Mr. Ojuolape had been here I would have applied for the case to be struck out.

            

However, on 21st September, 1970, the plaintiffs applied to the court to substitute one Osho Owonifari (the present defendant) for the deceased defendant. Paragraphs 7 and 9 of the affidavit filed in support of the application read--

 

7.          That I made enquiries as to the successors in title of the deceased defendant and I was informed and I verily believed that Osho Owonifari is the successor in title.

 

9.          That from his activities on the land I verily believe that he intends to confirm the defendant's claim to the land and to continue the acts of trespass previously commenced by the defendant.

 

The application was granted on 19th April, 1971. When the hearing started on 20th April 1971, the plaintiff testified as follows:

 

I sued the defendant's father, the Oniran of Orin village. Orin is now a quarter in Ikole Town. Defendant's father is dead. I substituted the defendant for his father because he has started collecting Ishakole from Akoko tenants on the land in dispute.

 

The present defendant also testified as follows:

 

I know the plaintiff and the original defendant. He was my father - he is now dead. I agree to represent and to stand in place of my late father.

 

In a reserved judgement, the learned trial judge carefully considered the evidence adduced before him by both sides and found as follows:

 

Subject however to my ruling on the defendant's objection, it follows in my judgement that the plaintiff is entitled to succeed on all the claims.

 

The objection referred to above by the learned trial judge was raised for the first time by learned counsel for the defendant in the course of his address after both sides had closed their case. It is rightly summarised by the learned trial judge in his judgement as follows:

 

Learned counsel for the defendant submitted, inter alia, that the original defendant Chief Oniran of Orin-Ikole, was not a juristic person, that the supposed defendant was merely the name of an office held by a person. Counsel therefore submitted that in the suit as originally constituted there was no defendant known to law, and that when he died, it was impossible to substitute a person for a non-existent defendant.

 

The learned trial judge then ordered that the plaintiff's claims be struck out after ruling on the objection as follows:

 

Both parties are, I think, agreed that the original defendant was not a juristic person. Oniran of Orin is a title subject to succession, and unless it can be shown that this office is a creation of statute it cannot be regarded as legal person. See Olu of Warri v. Chief Sam Esi and Anor. (1958) 3 F.S.C. 94; Agbomagbe Bank Ltd v.  General Manager, G.B Olivant Ltd. (1961) All N.L.R. 116. On the authorities as they stand, the action instituted against the Oniran of Orin was wrongly constituted and should have been struck out. The only point, which falls for decision in this case, is whether another person was rightly substituted for the non-existent defendant.

 

The learned trial judge also referred to the decision in Tetlow v. Orela Ltd. (1920) 2 Ch. 24 and after adverting to the statement of Rush, J., at p. 26 with approval, he held finally as follows:

 

In this action, there was no defendant before the court, nor a surviving cause of action against Chief Oniran and I hold that the present defendant (a legal person) could not be made to replace a non-existing person, thus creating a defendant in the suit for the first time.

 

An appeal by the plaintiff to the Western State Court of Appeal against this decision was dismissed by a majority of two to one (Fakayode, J.A. dissenting). In dismissing the appeal, the Court of Appeal observed as follows:

 

In this case, it is not in dispute that Chief Oniran of Orin who was made a defendant, that is a party, is not a legal person. It is an office to which living persons are appointed from time to time. It is conceded that the living person holding that office at the time this writ was taken out was Osanyinlusi, but he was not made the defendant. It is also not disputed that the writ was taken out, not in the name of the  then living person Osanyinlusi, buy in the name of his office, Chief Oniran of Orin. In our view there was therefore no defendant known to law at the time this writ was taken out.

 

After referring to the cases cited and relied upon by the learned trial judge with approval, and, in particular, to the decisions in Tetlow v. Orela Ltd. (1920) 2 Ch. 24 and London Association for Protection of Trade v. Grennlands Ltd. (1916) 2 A.C. 15 at p. 38, the Court of Appeal observed further as follows:

 

We would also like to rely on Lazard Brothers &  Co. v. Midland Ltd. (1933) A.C. 289 where the person originally made a party was non-existent. The principle is the same.

 

Now it was argued that what happened here was only a misnomer. We feel unable to accept this argument for the simple reason that misnomer, in this connection, means the use of wrong name of a legal person whereas the position here was that there was no legal person at all for which a wrong name could have been used. What was used here was the name of an office and not the name of a legal person. The name of the office was correctly stated as Chief Oniran of Orin. No one has said that this was the wrong name of the office stated as defendant and therefore there can be no question of misnomer on the facts of this case.

 

The short point for decision in the appeal before us against this judgement of the Western State Court of Appeal is whether the action brought by the plaintiff was brought against a non-existent person in which case the substitution which followed would be ineffective or whether it was brought against a real person who was not described by his real name but by the chieftaincy title held by him. In short, was it a case of a misnomer or not?

 

In legal theory, a person is any being whom the law regards as capable of rights and duties. There are two kinds of persons, distinguishable as natural and legal. A natural person is a human being while a legal or juristic person is a person in legal contemplation such as a join-stock company or a municipal corporation.

 

A natural person can have double or even multiple capacity. An example of this is a person who, as in the case in hand, is also a traditional chief. Such a person will have both his own personal name and his chieftaincy title. It is not unusual here in Nigeria, out of respect for tradition, to refer to such a person, on all occasions, only by his chieftaincy title. For this reason, we are clearly of the view that double capacity, particularly in the Nigerian context, does not necessarily connote double personality.

 

We think the learned trial judge and the Western State Court of Appeal committed the grave jurisprudential error of stating that Chief Oniran of Orin cannot be sued because he is not a legal person. In jurisprudence, the term "legal person", as opposed to a natural person, is a term of art. The term applies to corporations such as limited liability companies or municipal corporations; It may also apply to churches, hospitals, or universities if they are incorporated or registered as such. Their creation and existence have been aptly described by Salmon in his book on Jurisprudence (12th Ed.) at p. 320 as follows:

 

The birth and death of legal persons are determined not by nature, but by the law. They come into existence at the will of the law, and they endure during its good pleasure. Corporations may be established by royal charter, by statutes, by immemorial custom, and in recent years by agreement of their members expressed in statutory forms and subject to statutory provisions and limitations. They are in their own nature capable of indefinite duration, this being indeed one of their chief virtues as compared with humanity, but they are not incapable of destruction. The extinction of a body corporate is called its dissolution - the severing of that legal bond by which its members are knit together into a unity.

 

From the above, it is indisputable that the original defendant - Chief Oniran of Orin - is a natural person and not a legal person. That being the case, he could not, in his lifetime, be described, as both the learned trial judge and the Western State Court of Appeal had done, as a non-existent person.

 

The existence of the Oniran of Orin as a natural person was unmistakable throughout the hearing of the case. The record of proceedings showed that he was present in court on 27th April 1964 when the case was first listed. He accepted service of the plaintiff's statement of claim and filed his defence thereto. His death thereafter was reported to the Court by his counsel and this was confirmed by the plaintiff himself in his testimony before the court. His son was substituted for him by order of court and he too confirmed his father's death on oath. In any case, the defendant was sued in a representative capacity and his son also defended the action in that capacity throughout. In the face of all these facts, we think, with respect, that by referring to the deceased defendant as a non-existent person, both the trial judge and the Western State Court of Appeal appeared to have been indulging in a flagrant form of make-believe.

 

It is manifest that the plaintiff sued the original defendant by the name he was generally known. Indeed, the record of proceedings shows that all the witnesses called by both sides referred to him as Oniran. The only occasion when his other name was used was by the defendant himself in an affidavit he swore to in support of a motion filed by him on 16th June 1965. He described himself in the affidavit as "Osanyinlusi, the Oniran of Orin". At the worst, the description of the original defendant by the plaintiff as the "Oniran of Orin" is a misnomer, which could have been cured by amendment.

 

The decision in Tetlow v. Orela Ltd. (1920) 2 Ch. 24 referred to by the learned trial judge concerned an action commenced in the name of a dead man, while that in Lazard Brothers & Co. v. Midland Bank Ltd.(1933) A.C. 289 concerned a Russian Bank against which a writ had been issued on the application of Lazard Brothers. It was later discovered that the Russian Bank had ceased to exist before the date of issue of the writ. Unlike those cases, the Oniran of Orin, in the case in hand, was in existence when the writ was issued and indeed, he duly appeared in court when the case was first mentioned. It is, therefore, obvious that those two cases are of little help in determining the issues, which confronted the learned trial judge. They are certainly irrelevant to the consideration of those issues.

 

According to Order 20 Rule 5(3) of the Rules of the Supreme Court in England, which is applicable in the High Court of the Western State, an amendment to correct the name of a part may be allowed, not withstanding that it is alleged that the effect of the amendment will be to substitute a new part, if the court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading. Thus, in the case of Olu of Warri v. Chief Sam Warri Esi (1958) 3 F.S.C. 94, the learned trial judge, after considering an objection as to the name of the plaintiff (the Olu of warri) held that there was a misnomer and struck out the claim. On appeal to the Federal Supreme Court, Ademola, F.C.J., observed in his judgement as follows:

 

When an objection was raised about a misnomer, if application is made to amend the writ by substituting the proper names, it should be granted.

 

The cases Establishement Baudelot v. R.S. Graham & Co. Ltd. (1953) 1 All E.R. 149, and Alexander Mountain & Co.  v. Rumers Ltd. (1948) 2 All E.R. 483 cited by counsel are authorities to show that in a case of misnomer, if application is made to amend the writ by substituting the proper names, it should be granted.

 

It must be recalled that, in the case in hand, the objection was raised on behalf of a defendant who, on the first occasion when the case was mentioned in court, was present as the Oniran of Orin, a name about which his counsel complained only after he (the defendant) had died and his son had been substituted for him with the consent of his counsel. Moreover, this son later testified that his father, the original defendant, was the Oniran of Orin. Furthermore, as we had said earlier, all those who testified at the proceedings referred to the original defendant as the Oniran of Orin. It is therefore not unlikely that he was known and referred to by two names, namely "Osanyinlusi" and "Oniran of Orin".

 

It is our view, however, that even if he had found, after hearing the belated objection raised at the close of the proceedings, that there was a misnomer, the learned trial judge, of his own motion and in the interest of justice, could and should have amended the title of the case and the pleadings to reflect the proper name of the original defendant, particularly as he was defending the action in a representative capacity.

 

Manifestly, the misnomer, if any, has been rectified by the substitution of Osho Owonifari (the present defendant) for the Oniran of Orin. Nevertheless, mainly for record purposes, we hereby order that the name "Chief Oniran jof Orin" shown earlier as that of the original defendant in the title of the writ and of the pleadings should be amended to read "Osanyinlusi, the Oniran of Orin."

 

In view of the findings of the learned trial judge on the merits of the cased which are clearly in support of the claims of the plaintiff, this appeal, save for the amendment which we have ordered, must succeed and it is, therefore, allowed. The judgement of the learned trial judge in Suit No. AK/25/64, including the order as to costs, delivered on 15th May 1971, is accordingly set aside. So also is the judgement of the Western State Court of Appeal affirming that judgement as well as their order for costs. Instead, we order as follows:

 

(i)         that the plaintiff be and is hereby granted declaration of title to all that piece of farmland situate at Ese Itaoloke in Ode Ekiti and more Particularly edged red on survey plan No. 1154;

 

(ii)        that the said plaintiff be and is hereby awarded  50 (N100.00) as damages for trespass committed by the defendant, his servants and/or agents on the said land;

 

(iii)       that the said defendant, his servants and/or agents and all those claiming title through him be and are hereby restrained from committing further acts of trespass on the said land;

 

(iv)       that  the  orders made on (i), (ii) and (iii) above shall be the judgement of the court.

 

The plaintiff is awarded costs in the High Court assessed at N472.00, in the Western State Court of Appeal at N100.00, and in this court at N130.00

 

 

Counsel

 

Chief J.A. Adeyefa

With Chief G.B.A. Akinyede and Mr E.A. Ojuolape

 

For the Appellant

 

 

 

Mr. S.P.A. Ajibade

 

For the Respondent