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.
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