-->

LEGAL OPINION ON COMMENCEMENT OF AN ACTION AGAINST ‘PERSONS UNKNOWN’


INTRODUCTION

‘Parties to a civil suit’ is one of the preliminary factors that must be considered before commencing an action. Basically, the parties to a civil action can be classified into four groups; namely: proper parties, desirable parties, nominal parties and necessary parties. The basis of categorization depends on the degree of interest that such persons have in the action.

For an action to be competent, the parties must be legal persons with the legal capacity to sue and be sued. Parties to a civil action can determine the jurisdiction of the court and any irregularity on the appropriate parties in an action could lead to the suit being struck out, waste of time, costs, or amendment of parties, pursuant to a preliminary objection or motion for joinder of parties.

The aim of this write up is to give a legal opinion on the implication of commencing an action against ‘Person(s) Unknown’.

ISSUES

i.           Whether a Court of Law can exercise jurisdiction in a suit commenced against ‘Person(s) Unknown’ or ‘Person(s) Names Unknown?

ii.           Whether an action can be commenced against persons whose names are not known?


PRINCIPLES OF LAW

It may be argued that commencement of an action against ‘Person(s) Unknown’ is tantamount to commencement of action against non juristic persons and as such a Court of Law lacks jurisdiction to entertain same.
In A.G. Kwara State vs Olawale (1993) NWLR (Pt. 272) 645 at 674 – 675, Karibi Whyte JSC observed that “There is no doubt that the issue of whether a plaintiff’s action is properly within the jurisdiction or indeed justiciable can be determined even on the endorsement of the Writ of Summons as to capacity, in which the action was being brought, or against who the action is brought”.

This line of argument may be further stretched by the proposition that where a matter is instituted against ‘Person(s) Unknown’, there is no defendant known to law on the record. That is to say, there is no juristic person who can be sued in the matter, since no name of any defendant(s) is stated in any of the processes filed.

Moreover, a person against whom a suit has been instituted in Court must be named either by his or her personal name or in representative capacity since the Courts are mandated by law to ensure that the person sued or suing are competent to either defend an action or institute same: The Executors of the Estate of Gen. S. Abacha (Deceased) vs Eke Spiff & Ors (2009) 2 – 5 SC (Pt. 11) 93.

In similar vein, it may be further argued that the name of a competent party to a suit must be the real name by which he is known in the case of a natural person and its corporate name, in the case of non natural legal personality. The law is also trite that a non – existing person natural or artificial cannot institute an action. In Agbonmagbe Bank Ltd vs General Manager, GB Olivant Ltd & Ors (1961) 1 All NLR 116, the Court held that naming a non juristic person as a defendant is not a misnomer and cannot be amended to substitute a juristic person.

By the same token, it may be argued that 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 person, that is, human being and juristic or artificial persons such as body corporate are competent to sue or be sued. Accordingly, where either of the parties is not a legal person, the action is liable to be struck out as being incompetent: Shitta vs Ligali (1941) 1 All NLR 116.

Finally, for this side, the Supreme Court has held in the case of Nzom vs Jinadu (1987) NWLR (Pt. 51) that a Writ issued against a dead or non – existence person is null and void.

Conversely, it may be argued that all the above propositions are mere technicalities and that when raised in a Preliminary Objection amount to a calculated attempt to waste the time of the Court. Thus, it may be argued that “Persons Names Unknown” is not a fake name, provided that a defendant has taken steps in the matter and that the defendants are properly brought before the Court.

Another argument for this proposition is the contention that that the names of the defendants are not known does not make the defendants non-existent or non-juristic persons. A good example is where property is being occupied by trespassers and squatters whose names and identities are not known to the plaintiff or claimant.

CONCLUSION

A proper statement of the law in my humble opinion is that where a party (whether plaintiff or defendant) on the originating process is described as ‘Persons Unknown’, such could be put right by an amendment, provided that the person intended to be sued is a juristic entity and is in existence. This interpretation accords with reason and common sense and is legally sound.

Again, the issue of designating a party as ‘Person(s) Unknown’ is a mere misnomer. Thus, a substitution will be allowed in deserving cases. In Maersk Line vs Addide Investment Ltd (2002) 11 NWLR (Pt. 778) 317, the Supreme Court stated that it was not a proper proposition to suggest that an amendment cannot be allowed to substitute a non juristic person with a juristic person in the case of a misnomer.


Additionally, in ACB vs Eurostrade Ltd. (1998) 2 NWLR (Pt. 536) 19, it was held that a misnomer that will vitiate proceedings must be one that raises reasonable doubt as to the identity of the person intending to be sued or be sued.

© Onyekachi Duru Esq and www.legalemperors.com, 2016 (All Rights Reserved). Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excepts and links may be used, provided that full and clear credit is given to Onyekachi Duru Esq and www.legalemperors.com with appropriate and specific directions to the original content.

Share this: