SEPREBOFA OYEGHE ESQ
The issue of the right of Business Names to sue or be sued in
its name simpliciter without adding the Proprietors has a been a
matter of vigorous jurisprudential polemic. While some had
maintained that a Business Name can only sue or be sued through the
Proprietors as it is neither a legal nor juristic person and
therefore cannot sue or be sued. Others have maintained a firm
position that Business Names can sue and be sued provided the Rules
of Court permits. The writer agrees with this latter position.
This dichotomy arose largely from the fact that, whereas the
‘legal personality’ for Companies and Associations are clearly
stated in the Companies and Allied Matters Act, CAP C20, LFN, 2004
(C.A.M.A), see Sections 37 and 596, same is not extended to
Business Names.
Undoubtedly, 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. As a general
principle, only natural persons, that is, human beings and juristic
or artificial persons such as body corporate are competent to sue
or be sued. Consequently, where either of the parties is not a
legal person, the action is liable to be struck out as being
incompetent: see Shitta v.
Ligali (1941) 16 NLR 23; Agbonmagbe Bank
Ltd. v. General Manager G. B. Ollivant Ltd. and
Anor (1961) 1 All NLR 116.
The law, however, recognizes that apart from natural and
juristic persons, some non-legal entities can sue and be sued
eo nomine. Thus it has been held 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-
(a) a legal persona under the
name by which it sues or is sued, e.g. corporation sole and
aggregate, bodies incorporated by foreign law and
“quasi-corporations” constituted by Act of Parliament; or
(b) a right to sue or be sued by that
name e.g. partnerships, trade unions, friendly societies and
foreign institutions authorised by their own law to sue and be sued
but not incorporated.
See Fawehinmi v. N.B.A. (No.2) (1989) 2 NWLR (Pt.
105) 558; Knight and Searle v. Dove (1964) 2 All E.R 307 at 301;
Carlen (Nig.) Ltd. v. Unijos (1994) 1 NWLR (Pt. 323) 631.
See generally Ataguba and
Company v. Gura Nigeria Limited, S.C. 295/2000; (2005)
LPELR-584(SC); (2005)8 NWLR (Pt.927)429 per Dennis Onyejife Edozie.
J.S.C.
DISSECTION OF ATAGUBA’S CASE
In Ataguba’s case, the issue that
arose for determination was whether an action is maintainable
against in the firm’s name, the firm not being a juristic
persona.
The brief facts of the case is that the respondent as plaintiff
sued the defendant/appellant, Ataguba and
Company being the business name of Mr. E. E. Ataguba a
legal practitioner. The suit was filed under the “undefended list”
procedure.
Upon being served with the summons, the appellant entered a
conditional appearance and filed a notice of intention to defend
the suit accompanied with an affidavit. Furthermore, the appellant
filed on 7th July, 1998 a notice of preliminary
objection to the effect that the appellant, as named,
Ataguba and Company, is not a
juristic person and as such the suit should be struck out as the
court had no jurisdiction to entertain same.
The trial court took the argument of counsel on the ‘notice of
intention to defend’ and held that the appellant had not by his
affidavit disclosed a defence on the merit to warrant the transfer
of the suit to the general cause list and thereupon, he proceeded
to enter judgment for the respondent in the sum of
N750,000.00 (Seven hundred and fifty thousand naira
only) without costs.
Angst with the decision of the trial court, the appellant lodged
an appeal to the Court of Appeal raising therein the preliminary
objection to jurisdiction based on the alleged incapacity of the
named appellant as a non-juristic person
The Court of Appeal, Kaduna Division, in a unanimous decision
dismissed the appeal both on the objection on the personality of
the named appellant and the merits of the case.
Undaunted, the appellant further appealed to the apex court.
It was pointed out that there are exceptions to the general rule
where the rules of court permit non-juristic persons to sue or be
sued. In this connection, reference was made to Order 11 rules 9
and 26 of the Kaduna State High Court (Civil Procedure) Rules,
1987, which the court below relied upon in holding that the
appellant was properly sued in the name of his firm “Ataguba and
Company”.
The rules provide thus:-
“9. Any two or more
persons claiming or alleged to be liable as partners may
sue or be sued in the name of the firm in which they were partners
when the cause of action arose; and any party to an action may in
such case apply to the court for a statement of the names and
addresses of the persons who were, when the cause of action arose,
partners in any such firm, to be furnished in such manner, and
verified on oath or otherwise, as the court may direct.”
“26. Any person carrying on
business within the jurisdiction in a name or style other than his
own name may be sued in such name or style as if it were a firm
name and; and so far as the nature of the case will permit, all
provisions relating to proceedings against firms shall apply.”
Under rule 9 above, any two or more persons claiming or alleged
to be liable as partners may sue or be sued in the name of the firm
in which they were partners when the cause of action arose. For the
rule to apply, there must be two or more persons claiming or liable
as partners. The provision is not concerned with a firm which is
owned and or run by one person only
It is reasonable to assume that the firm of Ataguba and Company
consists of and/or is run by more than one person to entitle the
respondent to maintain the action in the name of the firm pursuant
to Order 11 rule 9 of the Kaduna State High Court (Civil
Procedure) Rules, 1987. But even if it is suggested that the
firm is a one man business, the suit in the name of the firm is
authorised under rule 26 of the said Order 11. lt is, therefore, my
view that even though the firm “Ataguba and Company” is not a
juristic person, it is suable eo nomine by virtue
of Order 11 rule 9 or 26 of the Kaduna State High Court (Civil
Procedure) Rules, 1987.
The appellant’s contention to the contrary, was held to be
baseless.
Niki Tobi. J.S.C (of blessed memory) in a concurrent judgment,
held that, the main issue before this court is whether the
appellant was not a juristic or legal person. Mohammed, JCA,
delivering the leading judgment of the court said at page 80 of the
record:-
“In other words if the firm of Legal Practitioners of Ataguba
and Company has two or more legal practitioners operating the firm
in partnership, that firm has the capacity to sue and be sued in
the name of Ataguba and Company. However, if the firm is being
operated by Ataguba alone in that name and style other than his own
name, the firm can all the same be sued in that name. For the
foregoing reasons the suit of the respondent against the appellant
in the name of Ataguba and Company as the defendant is quite
competent and has no feature whatsoever depriving the lower court
of jurisdiction to hear and determine the claim.”
Similarly, in Richway Ventures v. Faplins
Nigeria limited Suit No.
FCT CT/HC/CV/788/2012; it
was also contested that the Plaintiff lacks the capacity to bring
the suit for the reason that the Plaintiff sued as RICHWAY VENTURES
which is neither a natural or juristic person nor known to law and
therefore bereft of the capacity to sue.
In a Judgment delivered on the 11th day of February,
2013 the court per honourable justice A. B.
Mohammed of the High Court of the FCT, held that by
the express provisions of Order 10 Rule 27 of the Rules of the
Court and the judicial decisions, it is clear that Richway
Ventures, the plaintiff in the case, is seized with the capacity to
sue and be sued in that name.
THE POSITION UNDER THE HIGH COURT OF THE FCT (CIVIL
PROCEDURE) RULES, 2018.
The new FCT Rules also provides for the right of Firms and
Business Names to sue or sued without necessarily suing through the
proprietors.
ORDER 13 RULE 25 of the Rules provides
that “.. any two or more persons claiming or alleged to be liable
as partners and doing business within the jurisdiction may sue or
be sued in the NAME OF THE FIRMS. …
RULE 29, provides that any person carrying on
business within the jurisdiction in a name or style other than his
own name may be sued in such name or style as if it were a firm
name, and so far as the nature of the case will permit, all rules
relating to proceedings against firms shall apply.
Similar provisions to these Rules virtually exist in the civil
procedure rules of all the states in this Country. In interpreting
this provision, under the Uniform High Court Rules, the Court of
Appeal held in Nto Andrew O. Ansa & Ors. v. The
Owner/Managing Director RVL Motors (2008)
LPELR-8570(CA) held that:
“On issue one the general rule is that only natural persons,
(human being) and artificial or juristic persons (bodies corporate)
have the capacity to sue and/or to be sued, these being the
entities vested with legal rights and obligations. However,
non-corporate statutory bodies can also sue and be sued. See
Ilomehs v. Local Bout Service Board (1965) NMLR
310.
Also a firm or partnership and an individual carrying on a
business can sue and be sued under the registered business name.
See Order 11 rule 9 of the Uniform High Court
Rules.”Per Ngwuta, JCA, at page 12, Paras.C-F.See
also:CARLEN (NIG.) LIMITED v UNIVERSITY OF JOS & ANOR (1994)
LPELR-832(SC) or (1994) 1 NWLR (Pt.323)631,per Ogundare, JSC at
page 26, paras. B-D; and ZAIN NIGERIA LTD. v ILORIN (2012)
LPELR-9249(CA), Per Agube, JCA at page 77-90, paras.
B-E.
JUDGMENT GIVEN AGAINST THE FIRM: On how it could be
enforced–
When action has thus been taken against that firm, the plaintiff
or any other party to the action may apply to the court for a
statement of the names and addresses of the persons who were
partners in the firm at the time the cause of action arose. This is
an information a plaintiff may wish to avail himself of after the
action has been filed. One of the purposes this serves the
plaintiff is the legal consequence that a judgment against the firm
has the same effect that a judgment against all the partners…
Iyke Medical Merchandize v. Pfizer Inc LER (2001)
SC per Uwaifo JSC. See ORDER 13 RULE 25
of the FCT Rules.
CONCLUSIVELY, while CAMA expressly confer on
incorporated Limited Liability Companies the capacity to sue and be
sued, such capacity is not vested in Business name by the statute.
However, as demonstrated above, that generally non legal entities
cannot sue or be sued in their Business Name, exceptions exist
where statute expressly or impliedly grants such non legal entity
the right to sue or be sued eo nomine i.e in its own name,
examples of such exceptions been partnership, trade unions,
unregistered charities etc.
S. M. OYEGHE ESQ,
FCT, Abuja.
seprebofaoyeghe@gmail.com