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It is impossible for any corporation or agency that owes its existence to a statute, to have been in existence before the law creating such body was enacted (1)

JusticeWHERE an action is brought against a body and such body is not a juristic person of the time of the institution of the action, such a body is a not a competent party.

So held the Court of Appeal Holden at Lagos is a unanimous leading judgment delivered by His Lordship ABIMBOLA OSARUGE OBASEKI – ADEJUMO JCA, with his learned brothers, SIDI DAUDA BAGE JCA, and TIJJANI ABUBAKAR JCA, concurring while allowing the appeal in part.

The parties were represented by OLAKUNLE LIGALI Esq. of the Attorney General’s Chambers Lagos State Ministry of Justice for the Appellants and JOHNSON O. ESEZOBO Esq, who appeared for himself as respondent.

This appeal is against the judgment of the High Court of Lagos State contained in the Judgment of ADEBIYI J. of 10th November, 2006. The circumstance leading to this appeal is that the Respondent by a motion on notice dated 15th October 2003 prayed the lower court for the enforcement of the Respondent’s Fundamental Rights pursuant to Order 2 Rule 1(1) of the Enforcement Procedure Rules of 1978 (sic).

He also sought for a declaration that the arrest and forcible seizure of his Mercedes Benz 230 V-Boot Car with Registration No EU 894 AAA along Apapa Oshodi Expressway, a Federal Highway on August 26th 2003 is a gross violation of the Respondent’s right to freedom of movement guaranteed under Section 41 of the 1999 Constitution and Section 12 of the African Charted of Human and People Right (Ratification and Enforcement) Act Cap 10 amongst other reliefs.

The Appellants filed a 19- Paragraph Counter-Affidavit in opposition to the Appellant’s application. In a ruling dated 10th November 2006, the lower court declared that the alleged forcible seizure as illegal; the imposition of N25,000.00 and N25,00.00 as fines as illegal.

The court also ordered the release the Respondent’s vehicle and the payment of N5,000.00 per day as damages for unlawful detention. Being dissatisfied with the judgment of the lower court, the Appellants filed an Amended Notice of Appeal dated 27th October 2009 containing seven Grounds of Appeal.Therein, Counsel formulated five (5) issues for determination as follows.

1. Whether the trial court was competent to assume Jurisdiction in view of the non-existent of 1st Appellant either as a corporate body or statutory corporation at the time of the institution of this case on 3rd of October 2003. (Ground3)

2. Whether the arrest and detention of the Respondent’s Mercedes Benz and eventual issuance of notification of fine constitute a violation of the Respondent’s right to fair hearing under Section 36 of the 1999 Constitution.

3. Whether the lawful detention of the Respondent’s vehicle preparatory to prosecution in view of the provisions of laws allowing same amounts to violation of the Respondent’s right to immovable property. (Grounds 3 and 6)

4. Whether there was in existence reliably convincing evidence by the Appellants to controvert affidavit evidence by the Respondent. (Ground 4)

5. In the face of uncontroverted Affidavit evidence that the Respondent was driving against the direction of traffic thereby endangering his own life and the lives of other road users, (aside from his own uncooperative attitudes) whether the Respondent is entitled to N5,000 per day from August 26th 2003 until the dated of release of the Respondent’s vehicle. (Grounds 5 and 7) The three issues as formulated by the Respondent are as follow.

1.Whether Appellant’s issue one is not incompetent for lack instructions or Incapacity of instructions. A subsidiary issue from the issue is whether the Attorney- General of Lagos State has locus standi to defend the 1st Appellant or 1st Appellant’s action in question in this suit.

This issue relates to and arise from Appellants’ issue one. 1. Whether the learned trial judge was wrong when he held that the fundamental right of the Respondent to a fair hearing as well as his right to property was violated by the Appellants’ detention of the Respondent’s car as well as the summary imposition of fines of N25,000.00 and N25,00.00 without arraignment before a court of law.

This issue relates to grounds 1, 2, 5 and 6 of the grounds of appeal. 1. Whether the learned trial judge was not right when he held that the Respondent’s Affidavit evidence was uncontroverted and that the Respondent is entitled to the sum of N5,000.00 per day for unlawful detention of the vehicle from 26th August 2003 until the date of release.

This issue relates to Ground 3 & 4 of the grounds of appeal. ISSUE ONE Appellants’ counsel submitted that at the time of the institution of this case which was 3rd October 2003, the 1st Appellant (1st Respondent at the lower court) was not in existence whether as a corporate body or a statutory corporation.

Counsel argued that the enabling law, Lagos State Traffic Management Authority Law No 9 Vol. 37 now Cap L91, 2004 enacted by the House of Assembly of Lagos State, creating the 1st Appellant, after receiving the executive blessing came into effect on the 2nd of June 2004, several month s before the institution of the Respondent’s case in October 2004.

Counsel submitted that at the commencement of an action, the party to be made as defendant must be a juristic person or a natural person existing at the time the action is instituted, otherwise the action or suit will be incompetent and the court will lack jurisdiction to entertain the suit.

He cited AGBONMGBE BANK LTD VS. GENERAL MANAGER G. B OLIVANT LTD & ANOR (1961) ALL NLR 116. He further submitted that where a proper party is not before the court, the court is without jurisdiction to adjudicate and that it is incontestable that as at the commencement of the Respondent’s action the 1st Appellant was a stranger totally unknown to the law and therefore improper as a principal party in the Respondent’s action.

He relied on OLORIODE VS. OYEBI (1984) 1 SCNLR 390; ONWUNALU VS. OSADEME (1971) ALL NLR (PT. 1) 14; EKEPERE VS SFORIJE (1972) 1 ALL NLR 220; AMUDA VS. AJOBA (1995) 7 NWLR (PT. 406) 170; PLATEAU STATE VS. A-G FEDERATION (2006) 3 NWLR (PT. 967) 346 AT 423 paras B-C.

It is also the submission of counsel that where an action is not properly constituted like the Respondent’s action, the court is without jurisdiction to adjudicate and no matter how well conducted the steps taken in the proceedings will be a nullity.

He placed reliance on MOZIE VS. MBANALU (2006) 15 NWLR (PT1003) 446; SKEM CONSULT NIG LTD VS. UKEY (1981) 1 SC 6; MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341; A-G FEDERATION VS. GUARDIAN NEWSPAPER LTD (1999) 9 NWLR (PT 618) 187.

He also submitted that the view that it is was only one of the parties that was improper or non- existent begs the question as it is imperative that all the parties before the court must be proper parties.

He cited AYOOLA VS. BARUEA (1999) II NWLR (PT 628) 595; CHRISTABEN GROUP LTD VS. ONE (2008) II NWLR (PT 1097) 84 AT 117 paras D – E.

Counsel then submitted that the trial judge erred when he referred and quoted copiously from the provisions of the Lagos State Traffic Management Authority Law establishing the 1st Appellant as applying to the case and the traffic offence committed by the Respondent in 2003. In response, Respondent firstly submitted on the basis of what he termed subsidiary issue on the Appellants’ issue’.

Responding to the first issue, Respondent submitted that the argument of Appellants’ counsel that the Appellant was not in existence as at the time the time of commencement of the suit is erroneous as the 1st Appellant existed in fact at all time its enabling law was yet to receive executive blessing.

He submitted further that the Appellants’ argument that the 1st Appellant was a non-juristic entity is erroneous and too simplistic to meet the challenge the peculiar facts of the case pose.

Counsel submitted that Appellants’ submissions over sighted peculiar circumstances of this case and the judicial perspective in the acquisition of juristic personality.

He contended that the law has advanced beyond AGBONMGBE BANK LTD VS. GENERAL MANAGER G. B OLIVANT LTD (supra) and that all the authorities cited by the Appellants are misconceived and inapplicable.

It is his submission that no law say a body can only be invested with juristic personality by statute and that juristic personality can be acquired or accorded a body corporate or unincorporated in three ways namely by a statute; under common law and by the court. He cited FAWEHINMI VS. NBA (No 2) (1989) ALL NLR 278; UZOHO VS. NPC (2007) 10 NWLR (PT 1042) 320; THOMAS VS LOCAL GOVERNMENT SERVICE BOARD (1965) 1 ALL NLR 168; BAMAIYI VS AGF (2001) ALL FWLR (PT 64) 344.



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