➥ CASE SUMMARY OF:
Carlen (Nig.) Limited V. University of Jos & Anor. (SC.74/1992, 28th Jan 1994)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Juristic personality;
Ground of appeal.
➥ CASE FACT/HISTORY
The plaintiff, a limited liability company on 19th April, 1982 entered into a contract with the Vice-Chancellor of the University of Jos for the construction of faculties of Environmental Sciences and Education at the permanent site of the University in Jos at a total cost of N28,09 million. It was the Registrar of the University that signed the contract, presumably on behalf of the Vice-Chancellor. The contract contained an arbitration clause in the event of a dispute between the parties to it. The contract was partly executed and some payments made by the University to the plaintiff before a dispute arose between the parties leading to the termination of the contract by the Vice-Chancellor by a letter dated 16th April, 1984.
The plaintiff instituted an action at the High Court of Plateau State (Jos Judicial Division) in 1986 against the University of Jos and the council of the University as defendants claiming by its amended statement of claim a total sum of N11,358,000.00. The defendant’s entered appearance and filed and served an amended statement of defence.
At the subsequent trial the plaintiff called witness in support of its case and at the close of the plaintiff’s case the defence opened. Whilst the case for the defence was still on, learned leading counsel for the defendants Mr. Brown-Peterside, SAN filed a motion praying for an order or orders. “1. directing the plaintiff to give security for costs in this matter, 2. striking out this action/or dismissing it on the ground that it is premature and/or incompetent.” This motion was supported by an affidavit and a further affidavit both sworn to by junior counsel in the Chambers of the learned Senior Advocate. At the hearing of the motion, the learned trial Judge took arguments from learned counsel for the parties and in a reserved ruling held that the two defendants were juristic persons and that the action was properly brought against them. He also held that both the Vice-Chancellor and the Registrar of the University could properly have been made parties to the action and that the Vice-Chancellor was an agent of the council and a legal person. On the question of incompetence of the action and the jurisdiction to try the matter and that the defendants having taken steps in the matter, the action was competent notwithstanding the arbitration clause in the contract.
Briefs having been filed and exchanged the appeal was argued before the Court of Appeal holden at Jos and that court in a reserved judgment allowed the appeal and set aside the judgment of the trial High Court. The Court of Appeal held: 1. that the contract was not executed by the parties to the action moreso as the seal of the University was not affixed thereto; 2. that as the contract agreement was signed by the Registrar and not the Vice Chancellor, it was not executed by the parties to the suit; it was wrongly admitted in evidence; 3. that both the council of the University and the Vice Chancellor are not legal persons.
It finally struck out the names of the defendants from the suit. Being dissatisfied with this judgment the plaintiff, with leave of the Court of Appeal, appealed to this court upon 8 grounds of appeal. And pursuant to the rules of this court, the parties filed and exchanged their respective Briefs of Argument.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL SUCCEED]
↪️ I. Whether the Court of Appeal had the jurisdiction to determine the issue of execution of Exhibit 1 or 15 by the Vice Chancellor or the Registrar having regard to the only ground of appeal before them?
RESOLUTION: IN APPELLANT’S FAVOUR.
[THE GROUND OF APPEAL RAISED DID NOT SUPPORT THE ISSUE AT THE COURT BELOW
‘Indeed the plaintiff, in its respondent’s Brief in that court submitted that “Issue No.1 formulated by the defendants/appellants does not arise in this appeal.” This submission was not considered, let alone pronounced upon, by the learned Justices of the court below. It is trite that issues for determination formulated in a Brief must arise out of and be related to the grounds of appeal relied upon in support of the appeal and any issue not encompassed by nor relating to the ground(s) must be struck out – See: Okoye and ors. v. Nigerian Construction and Furniture Co. Ltd. and ors. (1991) 6 NWLR (part 199) 501; Egbe v. Yusufu (1992) 6 NWLR (Pt.245) 1. In the case on hand not only was the only ground of appeal raised in the appeal to the Court of Appeal incompetent, the issues formulated in the appellant’s brief did not arise out of that ground, incompetent as it was. The court below was therefore, in serious error to entertain the appeal to it.’
THE COURT OF APPEAL DECIDED ISSUE NOT RAISED AT THE TRIAL COURT WHERE NO LEAVE WAS SOUGHT
‘But that is not all. The defendants in their appellants’ brief in the court below argued issues not raised in the court of trial. Such issues included execution of the contract the subject matter of the action and the admissibility of the contract document. No leave of the Court of Appeal was sought nor obtain to raise these new issues. The court below was therefore wrong to have entertained arguments on them. See: Popoola v. Aderemo (1992) 8 NWLR (Pt.257) 1; Enigwe v. Akaigwe (1992) 2 NWLR 505; Biruwa v. The State (1992) 1 NWLR (Pt.220) 633.’
‘The Issues pronounced upon by the court below not arising out of the lone ground of appeal before it and not being issues raised and decided upon by the court of trial and leave of the court below not having obtained to raise such issues (if properly covered by the ground of appeal), the learned Justices of the court below, with profound respect to them, were in error to consider those issues.’]
.
.
↪️ II. Whether the 2nd defendant (Council of the University of Jos) is a juristic person who can sue or be sued in the performance of the statutory functions conferred on it by the University of Jos Act, 1979?
RESOLUTION: IN APPELLANT’S FAVOUR.
[THE 2ND DEFENDANT IS A JURISTIC PERSON WHO CAN SUE OR BE SUED
‘It is clear from the above provisions of the Act that the council, the Vice-Chancellor and the Registrar are creation of the University of Jos Act and each is assigned specific functions as provided for in the Act and in the exercise of such functions, rights of other persons will most certainly be affected. If in the exercise of their functions the right of anyone is infringed can it be said that any of these functionaries cannot be sued simply because the Act has not expressly stated that they can sue or be sued? This question was answered in Thomas v. Local Government Service Board (1965) NMLR 310; (1965) 1 All NLR 174 (new edition) where this court (per Brett, J.S.C.) observed at pages 176-178 of the latter report: “The Local Government Service Board is created by section 93 of the Local Government Law, which reads as follows-:- (1) There shall be a Local Government Service Board which shall consist of a Chairman and three other members who shall be appointed by the Governor. (2) A member of the Local Government Service Board shall, unless he resigns or is removed, hold office for a period of five years from the date of his appointment. (3) The Governor may remove any member of the Local Government Service Board from his office. (4) A member of the Local Government Service Board shall be paid such salary or allowance as the Governor in council may determine.’ The Law does not expressly empower the Board to sue or be sued, and the only provisions relating to legal proceedings are contained in section 97, which provides for a claim of privilege for the records of the Board, and section 95, which protects the individual members from proceedings in respect of their official actions. Dr. Aguda, for the Board, drew our attention to the judgment of Mocatta, J., in Knight and Searle v. Dove (1964) 2 All E.R. 307, where the liability in tort of a Trustee Savings Bank was in issue, and in particular to the passage at page 309, where the Judge says that it was common ground between counsel 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 or (b) a right to sue or be sued by that name …… As to (b), namely parties which are not legal personae, but have a right to sue or be sued by a particular name, these may be sub-divided into (i) partnerships: see R.S.C. Ord. 81: (ii) Trade Unions and friendly societies, both of which types have a membership; and (iii) foreign institutions authorised by their law to sue and be sued. It was further common ground that no statute expressly conferred the right to sue and be sued eo nominee on any trustee savings bank or on the bank the fifth named defendant. If in this case there be such right or obligation, it must, therefore, be derived by implication from the relevant statutes.’ Mocatta, J., then proceeded to examine the relevant statutes and in holding that the bank was liable to be sued in tort he attached some importance, as Dr. Aguda has pointed out, to the fact that it was capable of owning, and did own, property, which is a characteristic not possessed by the Board in this case. It is to be observed that Moratta, J., was summarising the matters on which counsel were agreed and that neither he nor counsel had occasion to consider the position of a body created by statute for the discharge of particular public functions, or the possibility of distinguishing between liability in tort, which is what he had to decide on, and liability to be sued for a declaration. In England an action for a declaration has been held to lie against the National Dock Labour Board: Vine v. National Dock Labour Board (1957) A.C 488; and tribunals of all kinds are proper defendants to actions for the prerogative writs, though it has never been suggested that they are liable in tort. We reject the submission that a Local Government Service Board is not liable to be sued for a declaration, and we do so more readily since the statutory provisions relating to the appellant’s office are such that injustice might result if the Board could not be made a defendant to any kind of proceedings.”’
‘From all I have been saying above, I hold the view that upon the reading of the University of Jos Act as a whole, both the council of the University and the Vice-Chancellor, are by implication, given juridical personality that enables each of them to sue and be liable to be sued eo nomine. The learned trial Judge had held that the second defendant, that is, the council of the University “can be sued and is a proper party to this action.” I entirely agree with this judgment of Ahinche, J. and find myself unable to accept the judgment of the Court of Appeal which held to the contrary.’
THE VICE CHANCELLOR AND REGISTRAR ARE AGENTS OF THE UNIVERSITY
‘To hold as that court did that the Vice-Chancellor and the Registrar were not agents of the University when executing the contract with the plaintiff would be to overlook the clear provisions of the Act which, on a reading as whole, would leave one in no doubt that both of them were and remain agents of the University in the discharge of their official duties. The relevant provisions of the Act have already been set out in the earlier part of this judgment. I need not repeat them here. The general law is that a contract made by an agent, acting within the scope of his authority for a disclosed principal is, in law, the contract of the principal, and the principal and not the agent is the proper person to sue and be sued upon such contract. The exceptions to this general law do not apply here and therefore need not be discussed. The power to enter into contracts and to erect, provide, equip and maintain libraries, laboratories, lecture halls, halls of residence, etc. is made among the powers conferred on the University by section 3(1) of the Act. In the exercise of its powers the University must, of necessity, act through its officials who are its agents. Suffice it to say, therefore, that I agree with the finding of the learned trial Judge that both the Vice-Chancellor and the Registrar were, in respect of the contract with the plaintiff, agents of the defendants. As the contract is not one that is required by law to be under seal, it is not void for the reason that the seal of the University was not affixed thereto, as was erroneously held by the court below.’
‘Under section 2(1)(h) of the University of Jos Act, persons holding the offices constituted by the First Schedule to the Act had been legally defined as Principal Officers of the University. Under paragraph 5(1) of the First Schedule the Registrar has been mentioned to the Chief Administrative Officers of the University and shall be responsible to the Vice Chancellors for the day to day administrative work of the University. He is the Secretary to the Council, the Senate, Congregation and convocation. It is an erroneous decision therefor to say that the Registrar of a University is not a legal person and cannot be agent of the University.’]
.
.
.
✓ DECISION:
‘In conclusion, I allow this appeal, set aside the judgment of the court below and restore the ruling of the trial court dismissing defendants’ application to strike out or dismiss the suit. The case is remitted to the trial court for trial to be completed and I direct that the concluding part of trial be embark upon with utmost despatch. I award to the plaintiff N1,000.00 costs of this appeal and N800.00 costs of the proceedings in the Court of Appeal.’
➥ FURTHER DICTA:
⦿ WHO IS AN ARTIFICIAL PERSON? CORPORATION?
An artificial person is generally referred to as a corporation. A corporation is defined by the learned authors of Halsbury’s Laws of England paragraph 1201 vol.9 (4th edition) in these words: “A corporation may be defined as a body of persons (in the case of a corporation aggregate) or an office (in the case of a corporation sole) which is recognised by the law as having a personality which is distinct from the separate personalities of the members of the body or the personality of the individual holder for the time being of the office in question. There are many associations and bodies of persons that are not corporations. Some of these, such as registered friendly societies, may be regarded as quasi corporations, as they have some of the usual attributes of corporations, such as the possession of a name in which they may sue and be sued, and the power (independently of any contract between the members) to hold property for the purposes defined by their objects and constitutions. Partnerships are not usually regarded as quasi corporations, although, if carrying on business in England or Wales, they may sue and be sued in the firm’s name. Subject to the exceptions mentioned above, unincorporated associations cannot sue or be sued in their own name nor (unless their purposes are charitable) can property be held for their purposes otherwise than by virtue of a contract between the members for the time being.” — Ogundare JSC.
⦿ ONCE ISSUES HAVE BEEN JOINED IT IS WRONG TO RAISE A PRELIMINARY OBJECTION
I must not end this judgment without making some observations on the conduct of the defendants in this case. Parties filed and exchanged their respective pleadings and subsequently amended same. The case eventually proceeded to trial and plaintiff, after calling its witnesses, closed its case. The defence opened. It was at this stage that the defendants brought their application praying the trial court to dismiss or strike out the action for lack of competence. At the hearing of their application they raised issues clearly out of the purview of their prayer. The learned trial Judge should not have entertained that application but should have proceeded with the trial to conclusion. See: Odive v. Obar (1974) 2 S.C.23 31 where Elias, C.J.N. delivering the judgment of this court said: “We think that the learned trial Judge was clearly in the wrong when he decided to uphold the preliminary objection of counsel for the defendants at the particular stage in the proceedings when the Statement of Defence had already been filed and the issues joined between the two parties. The learned trial Judge should have pointed out to counsel for the defendants that the preliminary objection should have been made after the delivery to him of the Statement of Claim and before filing his Statement of Defence. Another important point in this appeal is that, once issues had been joined between the parties including an allegation by the 1st defendant that the marriage between him and 2nd defendant had been made under customary law, it was wrong to entertain a preliminary objection without any further evidence on the merits.” They failed in their application and went on appeal to the court of appeal where they repeated their delay tactics by raising issues completely out of the range of the only ground of appeal filed by them and on issues not even covered by the pleadings. The court of appeal in turn did not help matters by going on a voyage of its own in considering issues not joined by the parties on their pleadings such as the admissibility of the contract document. The total effect of all these is that a case that could have been concluded by the end of 1986 or early 1987 remains to be concluded in January. The proper stage at which the defendants ought to have raised objection to their being sued was at the very early stage. They could have entered a conditional appearance and contest the issue before pleadings were filed and trial commenced. See: Adigun v. Ayinde and Ors. (1993) 8 NWLR 516. The main issues raised by them both in the trial court and in the Court of Appeal are not issues to be tried on the motion brought by them but issues essentially for trial on the pleadings. To have waited up to the stage they raised their objection is a tactic employed to delay the conclusion of the trial and this, in my respectful view, is an abuse of the process of the court. They should not have been allowed to use the court’s process to stultify the early adjudication of the action. As it is now, the case will have to be remitted to the court of first instance for the completion of the trial. I rather say no more on it. — Ogundare JSC.
⦿ RATIFICATION IN THE LAW OF AGENCY
Indeed, in the law of agency, ratification will be implied from any act showing an intention to adopt the transaction, even silence or mere acquiescence and if an act is adopted at all, it will be held to have been adopted throughout. See Hovib v. Pack (1806) 7 East 164: Bank Mell Iran v. Barclays Bank D.C.O (1959) T.L.R. 1057 at 1063 and Chitty on Contracts, 23rd Edition, Volume 2, paragraph 18, page 17. It is trite law that an effective ratification, as herein demonstrated, places all the parties in a position similar to that which they have occupied at the material time if the agent had had actual authority to perform the acts ratified. See Bolton Partners v. Lambert (1899)41 Ch.D 295 and Hon. Justice Kalu Anya v. Dr. Festus Iyayi (1993) 7 NWLR (part 3(5) 290. — Onu JSC.
⦿ LOCUS SIGILI – THERE NEED NOT BE A PHYSICAL SEAL
Besides, when it is realised that in modern times the absence of a seal (usually red wafer, wax or an impression or a stamp embossed on a document) is no longer rendered sine qua non the absence of a seal in the instant case does not render Exh. 1 or 15 invalid. For Sir David Cairns in First National Securities Ltd v. Jones (1978)2 WLR 475 at page 484 put it: “Moreover while in 1888 the printed indication of a locus sigilli was regarded as being merely the place where a seal was to be affixed, I have no doubt that it is now regarded by most business people and ordinary members of the public as constituting the seal itself. I am sure that hand documents intended by all parties to the deed are executed without any further formality than the signature opposite the words signed and delivered usually in the presence of a witness, and I think it would be lamentable if the validity of documents so executed would be successfully challenged.” … The sum total of the read along with the provisions of section 126 of the Evidence Act, which provides that – “When any document purporting to be, and stamped as deed, appears or is proved to be or to have been signed and duly attested, it is presumed to have been sealed and delivered although no impression of a seal appears thereon”. Puts to rest any further controversy relating to the absence of 1st respondent’s seal on Exhibit 1 or 15 to need any more argument. — Onu JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Ogundare, JSC
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
P.O. Jimoh-Lasisi
⦿ FOR THE RESPONDENT(S)
M.A. Toyin Keshinro
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
