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In The Supreme Court of Nigeria On Friday, the 14th day of April 1989
S.C. 229/1986
Before Their Lordships
Between
And
No 2
Judgement of the Court Delivered by Abdul Ganiyu Olatunji Agbaje. J.S.C
The plaintiff, Chief Gani Fawehinmi, commenced this action against the Nigerian Bar Association and the General Council of the Bar as Defendants by an originating summons. In it the plaintiff claimed the following reliefs:-
"(1) A declaration that the decision of the Nigerian Bar Association taken at its National Executive Meeting in Jos in April, 1984 and ratified at an Emergency General Meeting on the 5th May, 1984 in Lagos that its members must not appear before the Special Military Tribunals established under Decree No 3 of 1984, Recovery of Public Property (Special Military Tribunals) Decree 1984 is unconstitutional, illegal, null and void and of no effect whatsoever.
(2) A declaration that the decision of the Nigerian Bar Association taken at the meeting of its National Executive Committee held in Lagos on the 2nd and 3rd November, 1984 on the issue of members (of the Nigerian Bar Association) appearing before the Special Military Tribunal particularly that decision on the plaintiff is unconstitutional, illegal, null and void and of no effect whatsoever."
In the affidavit in support of the action he referred to and exhibited the constitution of the 1st Defendant. The originating summons was dated the 19th day of November, 1984. The case was called in court on 19th March, 1985 after some interlocutory proceedings which have nothing to do with this appeal. The appearances for the parties on that day were recorded as follows:
Chief Williams, S.A.N., with Messrs. E. A. Molajo, S.A.N., Kehinde Sofola, SAN. and Chief B. 0. Benson, S.A.N., Segun Onakoya and S. A. Adewolu for 1st Defendant."
On that day, Chief Williams acting for the 1st Defendant requested that the matter be continued as if it were commenced by a writ of summons and urged the court to order pleadings.
It will appear that following an objection to the propriety of the action as commenced by the plaintiff by an originating summons the trial court ruled that the action as commenced was proper. In that ruling, it was ordered that pleadings be filed in the case within such a period of time to be agreed upon by the parties with the court's concurrence. This ruling was on 16th April, 1985. Thereafter the plaintiff filed his Statement of Claim on the 22nd day of April, 1985. Later by a Motion on Notice dated 29th April, 1985 the plaintiff moved the court for the following relief:-
An order of interlocutory injunction restraining Chief F. R. A. Williams, S.A.N, Mr. Kehinde Sofola, S.A.N. and Mr. E. A. Molajo, S.A.N., from acting or from continuing to act or from representing or from continuing to represent the Nigerian Bar Association, the 1st Defendant in this suit on the ground that their appearance or representation for the Nigerian Bar Association is improper, unprofessional, dishonourable and dishonest."
In support of the application, the plaintiff swore a 26-paragraph affidavit. In view of the conclusion I have reached in this appeal I do not think it will be necessary for me to reproduce the contents of the affidavit in this case. What the affidavit is all about will be gathered in my judgment in this appeal.
Later by a Notice of Preliminary Objection dated 10th May, 1985 the first person sought to be restrained in the application of the plaintiff of 29th April, 1985, Chief F. R. A. Williams, S.A.N. took a preliminary objection to the application. The Notice of Preliminary Objection is as follows:
"NO TICE OF PRELIMINARY OBJECTION
TAKE NOTICE that at the hearing of the Motion on Notice dated 29th April, 1985 the 1st person named in the said Motion on Notice, namely, Chief F. R. A. Williams will rely on the following preliminary objection, that is to say, that the said Motion on Notice should be dismissed on the ground that the evidence in support of the prayers in the said Motion on Notice and the said Motion constitute a deliberate abuse of the process of the Court.
Particulars
1. The entire affidavit evidence in support of the Motion on Notice is inadmissible in view of the provisions of Section 25 of the Evidence Act and the common law rule including the admission of statement made in the course of negotiating for or exploring the possibility of the settlement of a dispute out of Court.
2. This Honourable Court had on a previous occasion ruled that the evidence of matters now sworn to in the affidavit mentioned in paragraph 1 hereof is inadmissible and the Court warned newspaper reporters not to publish so much of such matters as were divulged in court by the plaintiff herein.
3. Notwithstanding the ruling aforementioned, the plaintiff deliberately sent to the daily newspapers, copies of the Motion dated 29/4/85 together with the affidavit containing matters which the Court had warned newspapers not to publish and the said matters have been published in the Daily Times, the Punch and the Tribune of 30/4/84.
4. The motion cannot possibly have been filed in good faith for the purpose of obtaining any genuine relief but has been filed in all probability for the purpose of supplying to the press for publication, matters which the court had warned the newspapers not to publish and which matters are untrue.
AND FURTHER TAKE NOTICE that at the hearing of this application, the objectors will rely on the newspapers mentioned in paragraph 3 of the Grounds of Objection herein."
On the same day, that is 10th May, 1985, the 1st Defendant by a motion on notice applied to the court for the following reliefs:
(a) striking out the name of the 1st Defendant on the ground that it is not a juristic person and so cannot be sued;
(b) striking out the entire action on the ground that even if all the facts pleaded in the Statement of Claim are admitted or established, the court will not grant any of the reliefs claimed in the absence of all proper parties to the action;
and for such further and/or other orders as this Honourable Court may deem fit to make in the circumstances.
Further Particulars of Grounds for striking out the action
(i) The plaintiff has failed to join as co-plaintiffs those members of the Nigerian Bar Association who stand for the cause espoused by him and who agree with him in controversy to be resolved;
(ii) The plaintiff has failed to join as Defendants those members of the Nigerian Bar Association who stand for the cause espoused by him and who disagreed with him in the way in which they wish the matters in controversy to be resolved;
(iii) The plaintiff has failed to join as Defendants those members of the Nigerian Bar Association who oppose the cause espoused by him;
(iv) In the premises all persons who will or are likely to be affected by the judgment of the court are not before the court either in person or by representation.
Arguments were taken at the trial court on the two applications to it. On 19th July, 1985 the learned trial Judge, C. A. Johnson, C.J., delivered his ruling. The first part of his ruling was concerned with the application of the 1st Defendant to strike him out and to strike out the plaintiff's action on the ground that it was incompetent. Having considered the various arguments made to him in this regard he ruled as follows on the point whether or not the first Defendant is a juristic person and capable of suing and being sued:-
It is my considered view, having taken account of the implications of the different legislations recognising, imposing duties and granting privilege to the Association as a body, that it is meant to give the Association, even though unincorporated, a legal personality and I so hold. I therefore rule on that issue that the 1st Defendant is a juristic person and properly sued by the applicant as a Defendant in this suit."
On the preliminary objection of Chief F. R. A. Williams to which I have referred earlier on in this judgment to the application of the plaintiff to the trial court to restrain the three Senior Advocates named in the application from appearing for the first Defendant, the learned trial Chief Judge held as follows:-
Firstly
“It has been argued, relying on the provision of Section 25 of the Evidence Law that the affidavit in support of the applicant's application is inadmissible and consequently if this is accepted, there is no application before the Court. What does Section 25 provide?
The Section reads:
25 In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or in circumstances from which the court can infer that the parties agreed together that evidence of it should not be given; Provided that nothing in this section shall be taken to exempt any legal practitioner from giving evidence of any matter of which he may be compelled to give evidence under Section 169.
To start with there is nothing to show that it was ever agreed as an express condition that no evidence of what transpired at the reconciliatory meeting in Sir Adetokunbo Ademola's house should not be given; but can we infer from the circumstances that the parties agreed together that such evidence should not be given? That second leg, being a matter of inference, evidence of such agreement need not be in writing or express but could be by conduct."
The learned Chief Judge having examined the provisions of Sec. 25 of the Evidence Act and the circumstances under which the statements contained in the affidavit evidence of the plaintiff were made answered the question he posed for himself as to whether from the circumstances in question it can be inferred that the parties agreed together that such evidence should not be given as follows:
That incident as relayed in the affidavit of the applicant and uncontroverted, clearly removed whatever inference one could have drawn that the parties to the peace meeting by conduct, expected all that was said at the meeting to be covered by the privilege of secrecy. On that basis I rule that the provision of section 25 of the evidence law is inapplicable to the situation here presented and hold that the affidavit of the plaintiff attached to his application is admissible in support of that application."
So the learned trial Judge ruled that the affidavit evidence in support of the plaintiff's application to restrain the three Senior Advocates of Nigeria from appearing for the 1st Defendant was admissible. On the motion itself to restrain the three Senior Advocates he ruled as follows:-
The said conciliatory meeting was held while proceedings were pending in court. Ostensibly to aid the administration of justice by securing a settlement among the litigants. In that role the learned Senior Advocates of Nigeria and elders in the profession, assumed the mantle of impartial conciliators and the duties of an officer in aid of justice. The mischief in their subsequent conduct lies in the fact that their eventual participation is likely to be construed as reflecting ab initio on the quality of their original intentions even if mistakenly as likely to taint their mediation. It is in this regard, in my considered view that the learned elders breached their duties to the administration of justice."
Then he proceeded to make the following order on the application:-
"On the prevailing facts of the present situation and in exercise therefore of the court's inherent jurisdiction and inspite of the misconceived basis upon which the applicant has founded his motion the court is able and thus therefore modify the order prayed for an interlocutory injunction to an order for an injunction simpliciter. The three learned Senior Advocates of Nigeria, Chief Williams, Mr. Kehinde Sofola and Mr. Molajo are therefore hereby restrained from further appearing for any of the parties in this case as at present constituted."
The 1st Defendant and each of the three Senior Advocates of Nigeria with which the ruling was concerned were dissatisfied with it and they, all of them, appealed to the Court of Appeal Lagos Division against it. That court coram Nnaemeka-Agu, J.C.A., as he then was, Kutigi, Kolawole, JJ.C.A., in its judgment dated 13th March, 1986 unanimously allowed the appeal of the 1st Defendant and the three Senior Advocates of Nigeria. It held as regards the 1st Defendant that it was not a juristic person capable of suing and being sued. The 1st Defendant was accordingly struck out of the entire action. The court held too that the order for injunction made against the three Senior Advocates of Nigeria, the 2nd, 3rd and 4th appellants in that appeal was wrong and the said order was discharged. As regards the ruling of the learned trial Chief Judge on the admissibility of the affidavit evidence in support of the plaintiff's application to restrain the three Senior Advocates of Nigeria from appearing in the case the Court of Appeal ruled that the affidavit evidence was inadmissible. That court also ruled that the plaintiff by reason of his delay in taking objection to the appearance of the three Senior Advocates of Nigeria had waived his right to raise that objection.
The plaintiff is dissatisfied with the whole of the decision at the Court of Appeal and has now appealed against it to this court. All the parties to this appeal have filed briefs of arguments. In the course of the hearing of this appeal the plaintiff took an objection to the appearance of the 2nd to the 4th Respondents for themselves as parties to the appeal and also for the 1st Respondent. That objection was summarily dismissed at the hearing of this appeal. My learned brother, Obaseki, J.S.C., has now given his reasons for the dismissal of the objection. I entirely agree with them and I adopt them as my own.
I now go on with the consideration of the appeal itself. As I have just said briefs of arguments have been filed on both sides. A joint brief of arguments have been filed on behalf of the 1st to the 4th Respondents. It appears that all the parties are agreed as to the issues arising for determination in this appeal which the plaintiff/appellant has stated as follows:
(1) whether the Nigerian Bar Association is a juristic person capable of suing and of being sued in its name.
(2) whether the Chief Judge was unjustified in barring Chief Williams, S.A.N., Mr. Molajo, S.A.N. and Mr. Sofola, S.A.N. from appearing for the Nigerian Bar Association consequent upon what they did and said at the meeting of the 3rd of March, 1985 in the house of Sir Ademola.
(3) whether the affidavit evidence sworn to on the 29th of April, 1985 by the appellant is inadmissible.
(4) whether the appellant waived his right to object to the appearance of the three Senior Advocates."
I shall take the first issue first that is, whether the Nigerian Bar Association is a juristic person capable of suing and of being sued in its name. The submissions of the plaintiff on this point run as follows:-
"The Nigerian Bar Association is a statutory body and it is therefore a body corporate. Even if it is an unincorporated body, with several statutory and constitutional rights, privileges, powers conferred and duties imposed on it, the Nigerian Bar Association is capable of being sued as a legal entity in its name otherwise.”
There is no doubt that the Legal Practitioners Act, 1975, Section 1 empowers the Nigerian Bar Association to make its own constitution. The Legal Practitioners Act, 1962, (Repealed) made similar provision. The Constitution of the Nigerian Bar Association is therefore a law - a subsidiary instrument - an enactment."
The essence of the reply of the Respondents to this appeal to these submissions of the plaintiff's that the 1st Respondent is not a juristic person capable of suing or being sued. It is conceded by them that the 1st Respondent is an entity by itself recognised by the law but they maintain that it does not have the capacity to sue or be sued eo nomine.
I think the point to start in the consideration of the matter raised in this issue is to state the genera! law as to who can sue and be sued. Halsbury's Laws of England, Third Edition Volume 1 page 15 article 20 says as follows as to who can sue and be sued:
"The general rule of law is that any person, natural or artificial, may sue and be sued in the English Court."
Everybody knows who a natural person is. So I say no more about that. As to artificial person what is usually meant is a corporation, aggregate or sole. As to the definition of a corporation aggregate Halsbury's Laws of England, Volume 9, page 4, article 3, says as follows:
"A corporation aggregate has been defined as a collection of individuals united into one body under a special denomination, having perpetual succession under an artificial form, and vested by the policy of the law with the capacity of acting in several respects as an individual, particularly of taking and granting property, of contracting obligations and of suing and being sued, of enjoying privileges and immunities in common, and of exercising a variety of political rights, more or less extensive, according to the design of its institution or the powers conferred upon it, either at the time of its creation or at any subsequent period of its existence."
And as to the definition of a Corporation sole, article 8 at page 7 of the same work says:-
"A corporation sole is a body politic having perpetual succession, constituted in a single person, who, in right of some office or function, has a capacity to take, purchase, hold, and demise (and in some particular instances, under qualifications and restrictions introduced by statute, power to alienate) lands, tenements, and hereditaments, and now, it would seem, also to take and hold personal property, to him and his successors in such office for ever, the succession being perpetual, but not always uninterruptedly continuous; that is, there may be, and often are, periods in the duration of a corporation sole, occurring irregularly, in which there is a vacancy, or no one in existence in whom the corporation resides and is visibly represented."
Pertinent also to the point at issue in this appeal is the method of creation of corporations which is stated as follows at page 19 article 31 of the same work:
"At the present day a corporation is created by one or other of two methods, namely, by royal charter of incorporation from the Crown, or by the authority of Parliament, that is to say, by or by virtue of statute."
The commonest instance of a corporation created by virtue of statute in this country is that of an incorporation of a company under the Companies Act, 1968. There are of course, several statutes in this country creating corporations, such as statutes creating our Institutions of higher learning viz. University of Ibadan Act, 1962, and statutes establishing statutory bodies, e.g. Local Government Law of Oyo State, 1976.
It is the submission of the plaintiff that the 1st Respondent is a statutory body and is therefore a body corporate. The plaintiff has not directed us to any statute to which the 1st Defendant owes its creation. Nor has he directed us to any statute by virtue of which the 1st Respondent has been incorporated. For my part I cannot find such a statute. The conclusion I reach therefore is that the 1st Respondent is not a corporation. The 1st Respondent is evidently an association of individuals with its own constitution containing its aims and objectives.
I will now continue with my statement of the general law as to who can sue and be sued having come to the conclusion that the 1st Respondent is not a natural person or a corporation. On the general law on the point at issue Mocatta, J., in Knight & Searle V. Dove (1964) 2 All E.L.R. 307 at 309 said:-
“Counsel for the Defendants formulated a general proposition as to when in the English courts an action can be brought by or against a party other than a natural person, and gave illustrations of each part of the proposition, though he questioned the classification of some of the illustrations. The proposition was that no action can be brought by or against any party other than a natural person or persons unless such 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 (a), namely, legal personae, this may be divided into (i) corporation sole; (ii) corporations aggregate, incorporated by Royal Charter or special Act of Parliament or under the Companies Acts; (iii) bodies incorporated by foreign law; and (iv) 'quasi-corporations" constituted by Act of Parliament, such as the War Damage Commission: see Inland Revenue Commissioners v. Bew Estate Ltd. 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 subdivided 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 own law to sue and be sued, but not incorporated: see, for example, Chaff and Hay Acquisition Committee v. Hemhill, a decision of the High Court of Australia, on appeal from New South Wales."
It is clear from what I have said earlier on in this judgment that the 1st Respondent is not a creation of statute. Again our attention has not been drawn by the plaintiff to any statute expressly conferring the right to sue or be sued eo nomine on the 1st Respondent. I have rejected above the submission of the plaintiff that the 1st Respondent is a corporation. What remains for me to consider now is the other limb of the submissions of the plaintiff namely that having regard to the several statutory and constitutional rights, privilege and powers conferred and duties imposed on the 1st Respondent, the Nigerian Bar Association, it is capable of being sued as a legal entity in its name. What I understand the plaintiff is saying in this submission of his is that having regard to the various legislations to which he has referred us the 1st Respondent has been given, impliedly by statute, capacity to sue or be sued eo nomine.
The various statutes upon which the plaintiff is relying for this submission that the 1st Respondent has been accorded impliedly by statute the capacity to sue and be sued eo nomine are:-
(1) The Legal Practitioners Act, (1975), sections (1), (3), (7), (9), (11), (14), (22), and (23) thereof;
(2) The Legal Education (Consolidation etc) Act, 1976, as amended by the Legal Education (Consolidation etc.) Act, 1977, section 2(1) thereof;
(3) Sections 19 and 27 of the Interpretation Act, 1964; I should say here now that the plaintiff is relying on these two sections of the Interpretation Act, 1964, for his submission to us that the Constitution of the Nigerian Bar Association, the 1st Respondent, is a subsidiary instrument or an enactment.
(4) Item 48 of the Exclusive Legislative List of the Constitution of the Federal Republic of Nigeria, 1979. This provision provides that the National Assembly can legislate for such professional occupations as can be designated by the National Assembly.
(5) Section 272 of the 1979 Constitution. The section contains provisions relating to the system of revenue allocation between the Federation and the States, among the States, between the States and Local Government Councils, and among the Local Government Councils in the States. I fail to see the relevance of Section 272 of the Constitution to the point I am now considering. So I shall say no more about it.
Before I proceed further I should deal with the submission of the plaintiff that the Constitution of the Nigerian Bar Association, the 1st Respondent, is a subsidiary instrument or an enactment having regard to the provisions of Section 1 sub-section 1 of the Legal Practitioners Act, 1975, which says:
“1(1) There shall be a body to be known as the General Council of the Bar (hereafter in this Decree referred to as “the bar council") which shall be charged with the general management of the affairs of the Nigerian Bar Association (subject to any limitations for the time being provided by the constitution of the association) and with any functions conferred on the council by this Decree or that constitution."
Section 1 of the Legal Practitioners Act, 1975 does not empower the Nigerian Bar Association to make its own constitution. It only recognises the constitution of the Nigerian Bar Association. In other words, Section 1 says that the management which the General Council of the Bar can exercise over the management of the affairs of the Nigerian Bar Association shall be subject to any limitations imposed by the constitution of the association in that regard. So the Act recognises Section 6 of the Constitution of the Nigerian Bar Association which says as follows:-
General Council Of The Bar
The powers of the General Council of the Bar over the general management of the affairs of the Nigerian Bar Association as provided under the Legal Practitioners Act shall not include:-
(i) Any control over the budget or finances of the association;
(ii) The power to appoint representatives of the Association to any Statutory or other Body;
(iii) The power to issue public statements expressing or purporting to express the views of the Association upon a matter of public interest, or upon a matter affecting the interest of the legal profession generally; or
(iv) The power to make arrangements (including the drawing up of an Agenda or presenting the place of meeting) for the Annual General Conference or any other general meeting of the Association.
(v) Any decision of the General Council of the Bar made in pursuance of its powers over the general management of the affairs of the Association may be revoked or modified by the Annual General Conference or at any other general meeting of the Association."
The plaintiff has not directed us to any other statutory provision pursuant to which it may be said that the constitution of the 1st Respondent has been formulated. For my part, I cannot find such a provision.
In the circumstances, I reject the submission of the plaintiff to the effect that the constitution of the 1st Respondent is a subsidiary instrument or an enactment. This also disposes of the arguments in this regard based as it were on sections 19 and 27 of the Interpretation Act 1964.
The plaintiff has on the general law as to who can sue and be sued directed us to what Kayode Eso, J.A., as he then was, said in the Solicitor-General of Western Nigeria v Adedoym & Ors. (1973) 3 U.I.L.R. 143 at 149:-
"What is more important, however, is that the courts have for a long time and more so in modern times, promoted a number of institutions to sue and be sued in their own names even though such institutions are unincorporated by any statute. One would easily agree with Lord Denning, M.R., in Willis & Anor. V. Association of Universities of the British Commonwealth, when he said:
"We have reached the point foreseen by Professor Dicey long ago: 'When a body of twenty, or two thousand or two hundred thousand men bind themselves together to act in a particular way for some common purpose, they create a body which by no fiction of law, but by the very nature of things, differs from the individuals of whom it is constituted,' a passage which was acclaimed by Professor Maitland in his Sidgwick Lecture (Collected Papers III, p.306). This fact has now been recognised by law."
Lord Denning in that case was dealing with the legal status of a council."
I do not understand Kayode Eso, J.A., as he then was, by saying in Solicitor- General of Western Region v. Adedoym & Ors. (supra) namely: "What is more important, however is that the courts have for a long time and more so in modern times, promoted a number of institutions to sue and be sued in their own names even though such institutions are unincorporated by any statutes" meant that the courts had done this without paying due regard to the settled principles of law on the point as to who could sue or be sued as laid down in such cases as Knight & Searle v. Dove (supra). In fact, Kayode Eso, J.A., as he then was, stated these principles in Solicitor-General of Western Region v. Adedoym.
The passage from the decision of Lord Denning, M.R. in Willis & An or. v. Association of the Universities of the British Commonwealth (1964) 2 All E.L.R. 39 to which Kayode Eso, J.A., as he then was, referred can only be an authority for the proposition that the 1st Respondent, an unincorporated body is an entity by itself distinct from the persons constituting the Association and that the law will recognise such an entity. This is what Section 18(1) of the Interpretation Act, 1964, does when it says that "person" includes anybody or persons corporate or unincorporate.
Willis v. Association of Universities of British Commonwealth was concerned with an application for a new lease under the Landlord and Tenant Act, 1954, of England. The status of a body, Universities Central Council on Admissions, created by a committee of Vice Chancellors in England in 1961 was then being considered. It was in respect of this body that Lord Denning, M.R., made the statement quoted by Kayode Eso, J.A., as he then was.
The context in which the statement of Lord Denning, M.R., occurred was as follows:
"What then, is the legal status of the council? It is not, of course, a body corporate. But may it not be a body unincorporate? The Landlord and Tenant Act, 1954, like the Interpretation Act, 1889, recognises that a body unincoporate may have a juridical personality. We have reached the point foreseen by Professor Dicey long ago:
"When a body of twenty, or two thousand, or two hundred thousand men bind themselves together to act in a particular way for some common purpose, they create a body which by no fiction of law, but by the very nature of things, differs from the individuals of whom it is constituted"
a passage which was acclaimed by Professor MAITLAND in his SIDGWICK LECTURE (Collected Papers III, p.306). This fact has now been recognised by the law. A trade union (which is a body unincorporate) is a separate entity; see Bonsor V. Musicians' Union (1). I think that it would be right to recognise that this council is a separate entity. Accepting that the council is a separate entity, it seems to me that each of these bodies, the council and the landlords, carries on an activity at No 29, Tavistock Square. The council carries on there the activity of a central organisation for admissions. The landlords carry on there the activity of providing accommodation, equipment and staff for all the detailed administration of the scheme. This activity of the landlords is, I think, an "activity" within s.23(2) of the Act of 1954. Each of them, the council and the landlords, occupies the lower floors of No 29, Tavistock Square for the purpose of its activity. Each of them wishes to occupy the top floor for its purpose. It is, I think, quite p05sible for two bodies to share accommodation in this way. As I said in Hills (Patents) Ltd. v. University College Hospital Board of Governors (2):
"Possession in law is, of course, single and exclusive; but occupation may be shared with others or had on behalf of others."
I think that the landlords can truly say that they intend to "occupy" the top floor, for they intend to occupy it by staff employed by them; and they can truly say that it is for the purposes of "a business to be carried on by them therein", for it is to be carried on for their activity of providing the detailed administration of the scheme for admissions. Thus far the Landlords have the requisite intention to satisfy S.30 (1)(g) of the Landlord and Tenant Act, 1954."
The case was definitely not concerned with the capacity of the body in question to sue or be sued eo nomine. It was concerned with whether or not it can be regarded as a legal entity for the purposes of the application before the Master of the Rolls. On this point too I refer to the judgment of this court in Thomas V. Local Government Service Board (1965)1 All N.L.R. 168 at page 170:-
"The first ground on which the claim is resisted is that the Board is not a person capable of suing or being sued, and if this submission succeeds the action must fail in limine. In rejecting it the trial Judge relied largely on section 2 of the Interpretation Law, which provides that" 'person' includes any company or association or body of persons corporate or unincorporate", but we do not consider that "a Law to make provision for the Construction of Laws and of the Terms and Provisions usually adopted therein" is designed of itself to confer the power to sue and be sued on every unincorporated association of persons. It has been pointed out that this definition reproduces that in section 19 of the English Interpretation Act, 1889, which has never been held to have the effect suggested and was expressly said in Davey v. Shawcroft (1948)1 All E.R. 827, not to make an unincorporated body of persons liable to criminal proceedings. In our view it is necessary in every case to look at the instrument by or under which the association is established."
What can be said in my view having regard to the decision in Willis & Anor. v. University of British Commonwealth (supra) is that it is too late in the day to say now that the 1st Respondent has no existence at all known to the law apart from its members. But in my judgment that is not the same thing as saying that it is a legal persona which can sue and be sued eo nomine by virtue of the fact alone that it has an entity or existence known to the law and nothing else.
For his part Counsel for the 1st-4th Respondents, Chief F. R. A. Williams, has, on the point of the general law as to who can sue or be sued eo nomine drawn our attention to the American case of Forest, City MFG, et al. v. Garment Workers' Union 233 Missouri Report 1935 a decision of St. Louis Court of Appeal, opinion filed January 4, 1938. There it was held as follows:-
"1. Associations. In the absence of statutory authority, held that it is general rule that a voluntary unincorporated association does not have the legal capacity to sue or be sued in its common or associate name, for the reason that such an association is purely a creature of convention, organized and existing under the common law right of "contract only" and having no legal entity distinct from that of its members.
2. Corporations - Associations. Authority for investing a voluntary unincorporated association with the equivalent status of a corporation must be conferred by local statutes and not by federal laws if the association is to be regarded as a suable entity in this State.
3. Associations - Corporation. A corporation is a creature of the sovereign power which brings it into being with an entity separate and distinct from the individuals who compose it and endowed with the right of continuous succession during the period of its existence, while an association exists purely under the common law right of contract on the part of its members, has no legal entity distinct from that of its members, and (sic) not enjoy the power of perpetual or continuous succession."
The general principles stated in that case are not in my view different from the general principles of law I have earlier on stated in this judgment.
In deciding whether the voluntary association in the case in St. Louis Court of Appeal, U.S.A., could sue or be sued in its own name Bennick, C., observed as follows:-
First: “But as we pointed out above, the fact is that not even the four local statutes pleaded by Respondent have the effect of constituting a voluntary unincorporated association a suable entity, nor were they obviously ever intended by the Legislature to achieve that purpose. It is inconceivable to think that one desiring to learn if a particular association has been constituted a suable entity should be put to the task of leafing meticulously through the pages of the statutes and subsequent session acts to see perchance if that association had somewhere and some time been accorded a privilege of any character not accorded to individuals or partnerships, and it is equally inconceivable to think that the Legislature, if it had ever desired to constitute a voluntary unincorporated association a suable entity, would have done so by the strained and indirect method contended for by Respondent, that is, by exempting it from the income tax laws, or by giving it the right to select a union label and determine where the same should be displayed, or by giving it the right to be represented by a member on the State Board of Mediation. No one knows better than the Legislature how to go about constituting such an association suable entity if it should ever desire to do so,"
Second: ”Of course we recognize the fact that even in the absence of express statutory provision the status of a suable entity may in certain instances be accorded a voluntary unincorporated association by necessary implication from other legislation which recognizes such association as a legal entity, at least with respect to the exercise of the particular power conferred upon it."
I have stated earlier on in my judgment that authority to sue and be sued eo nomine may be accorded a voluntary unincorporated association by statute expressly or impliedly. In the case of express authority to sue or be sued eo nomine it can only be expected that the legislature if it desired to constitute a particular association a suable entity would have done so by saying so directly otherwise than by going about it in a round-about way. However when the question for determination is whether in the absence of express statutory provision, a particular unincorporated association has the status of a suable entity which can necessarily be inferred from a statute or a series of statutes, one must of necessity go through the task of leafing meticulously through the statutes in question in order to decide the point. I believe this is what Mocatta, J., had in mind when he said in Knight and Searle v. Dove (supra) at page 309:-
"It was further common ground that no statute expressly conferred the right to sue or be sued eo nomine on any trustee savings bank or on the bank the fifth-named Defendant. If in this case there be such a right or obligation, it must, therefore, be derived by implication from the relevant statutes."
So in the case in hand where as I have said there is no statute expressly conferring the right to sue or be sued eo nomine on the 1st Respondent the question that presents itself is whether such a right or obligation can be derived by implication from statutes. In that case one cannot, in my judgment, in order to decide the point correctly, help but examine all the statutes which have to do with the 1st Respondent and to which the plaintiff has drawn our attention.
I have earlier on in this judgment made the point that the 1st Respondent is not a creature of statute. Having regard to this I must now advert to the following submission by counsel for the 1st to the 4th Respondents in their brief of arguments:
"The reasons why the learned Chief Judge came to the conclusion that the N.B.A. had legal capacity to sue or be sued are, in his own words (at p.192 line 20 to 28) as follows:
"It is my considered view, having taken account of the implications of the different legislations recognising, imposing duties and granting privileges to the Association as a body, that it is meant to give the Association, even though unincorporated, a legal personality and I so hold. I therefore rule on that issue that the 1st Defendant is a juristic person and properly sued by the applicant as a Defendant in this suit."
Thus, the learned Chief Judge rested his decision on what the relevant enactments did in relation to the N.B.A. and not on the fact that any of the said statutes created the N.B.A. It is submitted that NNAEMEKA-AGU, J.C.A., was correct in holding that the decision in Thomas V. Local Government Service Board does not support the conclusion of the learned Chief Judge quoted above. The two cases are distinguishable on the ground that whilst the Local Government Service Board is a body created by statute, the N.B.A. is not such a body.
3.6 Implying the Right to sue or be sued from Statute: In every case in which the courts have held that the right to sue or be sued may be inferred from statute, great care was taken to look very closely at the relevant statutory provisions. See e.g. Taff Vale Railway Co. V. Amalgamated Society of Railway Servants (1901), A.C. 426; Amalgamated Society of Carpenters, Cabinet Makers & Joiners V. Braith waite (1922), 2 A.C. 440; National Union of General and Municipal Workers V. Gillian (1946) K.B. 81; Bonsor V. Musicians' Union (1954) Ch. 479 and (1956) A.C. 104; Willis V. Association of Universities of the British Commonwealth (1965)1 Q.B. 140; Knight and Searle V. Dove (1964) 2 Q.B. 631; Thomas v. Local Government Service Board (1965)1 All N.L.R. 168; Solicitor General W. Nigeria V. Adedoym & Ors. (1973) 3 U.I.L.R. 143. In everyone of the foregoing cases, the body unincorporated which was held to possess (by implication) the capacity to sue or be sued was either directly established by statute or established pursuant to some enabling statutory provisions. Not one of the cases deal with a body like the N.B.A. which was not established by or pursuant to the provisions of any statute."
I can find nothing in all the cases referred to in the above submissions for the 1st to the 4th Respondents remotely suggesting that the proposition that a party can be given impliedly by statutes either (a) a legal pesona under the name by which he sues or is being sued or (b) a right to sue or be sued by that name, will only apply where such a party is a creature of statute. So I reject such a submission. The reasons for my rejection of the submission will be more apparent when later in this judgment I discuss each one of the cases referred to in the submission.
I am of the view that the approach of the learned Chief Judge to the point at issue is the correct approach and as I have said earlier on in this judgment that will be my approach to the point too. Even in the American case of Forest City MFG. Co. et al. v. Garment Workers' Union (supra) to which Counsel for the 1st to 4th Respondents directed us and to which I have referred earlier on in this judgment, what was said there was that the status of a suable entity might in certain instances be accorded a voluntary unincorporated association by necessary implication from other legislation which recognises such an association as a legal entity in the absence of express legislation conferring such a status. The fact that the association spoken of is a voluntary association denotes that it is not a creation of statute.
The plaintiff in his submission that capacity to sue or be sued eo nomine has been conferred impliedly by statute on the 1st Respondent relies on the following decided cases:
(a) Thomas v. Local Government Service Board (1965)1 All N.L.R. 168 at 170;
(b) William Kpebimoh v. The Board of Governors Western Ijaw Teachers Training College (1966)1 N.M.L.R. 130;
(c) The Solicitor-General of Western Nigeria v Adedji Adedoym CAW/83/69 of 30th August, 1971 reported in The University of Ife Law Report in (1973) 3 U.I.L.R. 143;
(d) Canadian Case of Bass v Pharmaceutical Association of British Columbia 51 D.L.A. (2D) p.552; and
(e) Australian Case of Clyne v The New South Wales Bar Association (1960) 104 C.L.R. 186.
I have referred to the cases in which, according to counsel for the 1st to the 4th Respondents the courts had held that the right to sue and be sued may be inferred from statute. I have rejected the submission of counsel for the 1st to the 4th Respondents that the capacity to sue or be sued could only arise by implication when the body in question is directly established by statute or established pursuant to some enabling statutory provisions. There is, however, the other leg of the submission of counsel for the 1st to the 4th Respondents to the effect that in every case in which the courts had held that the right to sue or be sued might be inferred from statutes great care was taken to look very closely at the relevant statutory provisions. I agree to this submission and this is what I intend to do in the case in hand.
Before I embark on the examination of the relevant statutes in this case I think I should find out what assistance I can get from the various decided cases cited to us.
I do not think that the following two cases to which the plaintiff referred us to in this case, namely:
(i) The Canadian Case of Bass v. Pharmaceutical Association of British Columbia (supra) and
(ii) The Australian Case of Clyne v The New South Wales Bar Association (supra)
can be relied upon as authorities for coming to a decision in this case that the 1st Respondent has a capacity granted to it by statute impliedly to sue and be sued eo nomine. The decision in the former case depended on the statute relevant to the body in question in that case, that is, the Pharmacy Act of British Columbia, 1969. Obviously we are not concerned with that statute here and the plaintiff has not cited to us any local statute comparable to that statute. In the latter case, that is, the Australian case, the body in question was in fact a voluntary incorporated association. I have held earlier on in this judgment that the 1st Respondent is not an incorporated association. So that case is not in point here.
I go now to the Trade Union cases in England referred to by counsel for the 1st to the 4th Respondents, starting with the case of Taff Vale Railway Co. v. Amalgamated Society of Railway Servants (supra). In that case it was held that a Trade Union registered under the Trade Union Act, 1871 and 1876 could sue or be sued in its registered name. Lord Macnaghten in his speech in the House of Lords in he case said as follows:-
at page 437
“Parliament has legalised trade unions, whether registered or not; if registered, they enjoy certain advantages."
at page 438
“The substantial question, therefore, as Farwell, I. put it, is this: Has the Legislature authorised the creation of numerous bodies of men capable of owning great wealth and of acting by agents with absolutely no responsibility for the wrongs they may do to other persons by the use of that wealth and the employment of those agents? In my opinion, Parliament has done nothing of the kind. I cannot find anything in the Acts of 1871 and 1876, or either of them, from beginning to end, to warrant or suggest a notion."
Then, if trade unions are not above the law, the only remaining question, as it seems to me, is one of form. How are these bodies to be sued? I have no doubt whatever that a trade union, whether registered or unregistered, may be sued in a representative action if the persons selected as Defendants be persons who, from their position, may be taken fairly to represent the body."
at pages 439440
“May a registered trade union be sued in and by its registered name? For my part, I cannot see any difficulty in the way of such a suit. It is quite true that a registered trade union is not a corporation, but it has a registered name and a registered office. The registered name is nothing more than a collective name for all the members. The registered office is the place where it carries on business. A partnership firm which is not a |