While some had maintained that a Business Name can only sue or be sued through the Proprietors as it is neither a legal nor juristic person and therefore cannot sue or be sued. Others have maintained a firm position that Business Names can sue and be sued provided the Rules of Court permits. The writer agrees with this latter position. This dichotomy arose largely from the fact that, whereas the ‘legal personality’ for Companies and Associations are clearly stated in the Companies and Allied Matters Act, CAP C20, LFN, 2004 (C.A.M.A), see Sections 37 and 596, same is not extended to Business Names. Undoubtedly, 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 persons, that is, human beings and juristic or artificial persons such as body corporate are competent to sue or be sued. Consequently, where either of the parties is not a legal person, the action is liable to be struck out as being incompetent: see Shitta v. Ligali (1941) 16 NLR 23; Agbonmagbe Bank Ltd. v. General Manager G. B. Ollivant Ltd. and Anor (1961) 1 All NLR 116. The law, however, recognizes that apart from natural and juristic persons, some non-legal entities can sue and be sued eo nomine. Thus it has been held 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, e.g. corporation sole and aggregate, bodies incorporated by foreign law and “quasi-corporations” constituted by Act of Parliament; or (b)     a right to sue or be sued by that name e.g. partnerships, trade unions, friendly societies and foreign institutions authorised by their own law to sue and be sued but not incorporated. See Fawehinmi v. N.B.A. (No.2) (1989) 2 NWLR (Pt. 105) 558; Knight and Searle v. Dove (1964) 2 All E.R 307 at 301; Carlen (Nig.) Ltd. v. Unijos (1994) 1 NWLR (Pt. 323) 631. See generally Ataguba and Company v. Gura Nigeria Limited, S.C. 295/2000; (2005) LPELR-584(SC); (2005)8 NWLR (Pt.927)429 per Dennis Onyejife Edozie. J.S.C. DISSECTION OF ATAGUBA’S CASE In Ataguba’s case, the issue that arose for determination was whether an action is maintainable against in the firm’s name, the firm not being a juristic persona. The brief facts of the case is that the respondent as plaintiff sued the defendant/appellant, Ataguba and Company being the business name of Mr. E. E. Ataguba a legal practitioner. The suit was filed under the “undefended list” procedure. Upon being served with the summons, the appellant entered a conditional appearance and filed a notice of intention to defend the suit accompanied with an affidavit. Furthermore, the appellant filed on 7th July, 1998 a notice of preliminary objection to the effect that the appellant, as named, Ataguba and Company, is not a juristic person and as such the suit should be struck out as the court had no jurisdiction to entertain same. The trial court took the argument of counsel on the ‘notice of intention to defend’ and held that the appellant had not by his affidavit disclosed a defence on the merit to warrant the transfer of the suit to the general cause list and thereupon, he proceeded to enter judgment for the respondent in the sum of N750,000.00 (Seven hundred and fifty thousand naira only) without costs. Angst with the decision of the trial court, the appellant lodged an appeal to the Court of Appeal raising therein the preliminary objection to jurisdiction based on the alleged incapacity of the named appellant as a non-juristic person The Court of Appeal, Kaduna Division, in a unanimous decision dismissed the appeal both on the objection on the personality of the named appellant and the merits of the case. Undaunted, the appellant further appealed to the apex court. It was pointed out that there are exceptions to the general rule where the rules of court permit non-juristic persons to sue or be sued. In this connection, reference was made to Order 11 rules 9 and 26 of the Kaduna State High Court (Civil Procedure) Rules, 1987, which the court below relied upon in holding that the appellant was properly sued in the name of his firm “Ataguba and Company”. The rules provide thus:- “9.        Any two or more persons claiming or alleged to be liable as partners may sue or be sued in the name of the firm in which they were partners when the cause of action arose; and any party to an action may in such case apply to the court for a statement of the names and addresses of the persons who were, when the cause of action arose, partners in any such firm, to be furnished in such manner, and verified on oath or otherwise, as the court may direct.” “26.      Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in such name or style as if it were a firm name and; and so far as the nature of the case will permit, all provisions relating to proceedings against firms shall apply.” Under rule 9 above, any two or more persons claiming or alleged to be liable as partners may sue or be sued in the name of the firm in which they were partners when the cause of action arose. For the rule to apply, there must be two or more persons claiming or liable as partners. The provision is not concerned with a firm which is owned and or run by one person only It is reasonable to assume that the firm of Ataguba and Company consists of and/or is run by more than one person to entitle the respondent to maintain the action in the name of the firm pursuant to Order 11 rule 9 of the Kaduna State High Court (Civil Procedure) Rules, 1987. But even if it is suggested that the firm is a one man business, the suit in the name of the firm is authorised under rule 26 of the said Order 11. lt is, therefore, my view that even though the firm “Ataguba and Company” is not a juristic person, it is suable eo nomine by virtue of Order 11 rule 9 or 26 of the Kaduna State High Court (Civil Procedure) Rules, 1987. The appellant’s contention to the contrary, was held to be baseless. Niki Tobi. J.S.C (of blessed memory) in a concurrent judgment, held that, the main issue before this court is whether the appellant was not a juristic or legal person. Mohammed, JCA, delivering the leading judgment of the court said at page 80 of the record:- “In other words if the firm of Legal Practitioners of Ataguba and Company has two or more legal practitioners operating the firm in partnership, that firm has the capacity to sue and be sued in the name of Ataguba and Company. However, if the firm is being operated by Ataguba alone in that name and style other than his own name, the firm can all the same be sued in that name. For the foregoing reasons the suit of the respondent against the appellant in the name of Ataguba and Company as the defendant is quite competent and has no feature whatsoever depriving the lower court of jurisdiction to hear and determine the claim.” Similarly, in  Richway Ventures v. Faplins Nigeria limited Suit No. FCT CT/HC/CV/788/2012; it was also contested that the Plaintiff lacks the capacity to bring the suit for the reason that the Plaintiff sued as RICHWAY VENTURES which is neither a natural or juristic person nor known to law and therefore bereft of the capacity to sue. In a Judgment delivered on the 11th day of February, 2013 the court per honourable justice A.  B. Mohammed of the High Court of the FCT, held that by the express provisions of Order 10 Rule 27 of the Rules of the Court and the judicial decisions, it is clear that Richway Ventures, the plaintiff in the case, is seized with the capacity to sue and be sued in that name. THE POSITION UNDER THE HIGH COURT OF THE FCT (CIVIL PROCEDURE) RULES, 2018. The new FCT Rules also provides for the right of Firms and Business Names to sue or sued without necessarily suing through the proprietors. ORDER 13 RULE 25 of the Rules provides that “.. any two or more persons claiming or alleged to be liable as partners and doing business within the jurisdiction may sue or be sued in the NAME OF THE FIRMS. … RULE 29, provides that any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in such name or style as if it were a firm name, and so far as the nature of the case will permit, all rules relating to proceedings against firms shall apply. Similar provisions to these Rules virtually exist in the civil procedure rules of all the states in this Country. In interpreting this provision, under the Uniform High Court Rules, the Court of Appeal held in Nto Andrew O. Ansa & Ors. v. The Owner/Managing Director RVL Motors (2008) LPELR-8570(CA) held that: “On issue one the general rule is that only natural persons, (human being) and artificial or juristic persons (bodies corporate) have the capacity to sue and/or to be sued, these being the entities vested with legal rights and obligations. However, non-corporate statutory bodies can also sue and be sued. See Ilomehs v. Local Bout Service Board (1965) NMLR 310. Also a firm or partnership and an individual carrying on a business can sue and be sued under the registered business name. See Order 11 rule 9 of the Uniform High Court Rules.”Per Ngwuta, JCA, at page 12, Paras.C-F.See also:CARLEN (NIG.) LIMITED v UNIVERSITY OF JOS & ANOR (1994) LPELR-832(SC) or (1994) 1 NWLR (Pt.323)631,per Ogundare, JSC at page 26, paras. B-D; and ZAIN NIGERIA LTD. v ILORIN (2012) LPELR-9249(CA), Per Agube, JCA at page 77-90, paras. B-E. JUDGMENT GIVEN AGAINST THE FIRM: On how it could be enforced– When action has thus been taken against that firm, the plaintiff or any other party to the action may apply to the court for a statement of the names and addresses of the persons who were partners in the firm at the time the cause of action arose. This is an information a plaintiff may wish to avail himself of after the action has been filed. One of the purposes this serves the plaintiff is the legal consequence that a judgment against the firm has the same effect that a judgment against all the partners… Iyke Medical Merchandize v. Pfizer Inc LER (2001) SC per Uwaifo JSC. See ORDER 13 RULE 25 of the FCT Rules. CONCLUSIVELY, while CAMA expressly confer on incorporated Limited Liability Companies the capacity to sue and be sued, such capacity is not vested in Business name by the statute. However, as demonstrated above, that generally non legal entities cannot sue or be sued in their Business Name, exceptions exist where statute expressly or impliedly grants such non legal entity the right to sue or be sued eo nomine i.e in its own name, examples of such exceptions been partnership, trade unions, unregistered charities etc. S. M. OYEGHE ESQ, FCT, Abuja. seprebofaoyeghe@gmail.com  ]]>

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