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, Complainant, 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.
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It is not unknown in the legal parlance that no action be it criminal or civil 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- corporation.” 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 authorized by their own law to sue and be sued but not incorporated.
It is only an enactment that creates anybody or an indeterminate group of persons or even inanimate objects juristic persons that may sue or be sued eo nomine, as prescribed by the enactment.
It is a known fact that a charge often filed in initiating some criminal proceedings in the High Court in Nigeria do bear a party commonly described with nomenclature ‘THE STATE’ and one continues to wonder if such nomenclature often used to describe the complainant in initiating criminal proceeding in the High Court is a creation of any statute for the party described as ‘THE STATE’ to be a juristic person with legal capacity to sue or be sued. Even, the same nomenclature used for description of a complainant as ‘THE STATE’ in a charge before High Court and same often used to describe an appellant or respondent as the case may be in an appeal. Is such nomenclature ‘THE STATE’ a juristic person in the eye of law? Who then is a juristic person?
At this juncture, it is apt to remind the legal minded persons and interested readers what a juristic personality in the eyes of law is. A juristic person has been severally defined by the Court of Appeal and the Apex Court to be a natural person, that is, a human being of requisite capacity or an entity created by law, which includes an incorporated body or a special artificial being created by legislation and vested with capacity to sue and be sued.
Also, Justice Olagunju, J.C.A in the case of AKAS v. MANAGER (2001) 8 NWLR (715) 436 at 444 paragraphs A-C further defined who a juristic person is in law, as follows:-
“A juristic person is either a natural person in the sense of a human being of the requisite capacity or an entity created by the law which includes an incorporated body and special artificial being created by legislation and vested with the capacity to sue and be sued”
See also: ABIA STATE UNIVERSITY v. ANYAIBE (1996) 3 NWLR (439) 649. OKAFOR v. ASOH (1999) 3 NWLR (593) 35
Flowing from the above definitions of a juristic person with requisite capacity, it is crystal clear that for a party to sue or be sued with any name, such party must be a juristic person in the eye of law.
Recourse to the Constitution of the Federal Republic of Nigeria 1999 (as amended) with a view to finding out if out of thirty-six states stated with their respective local governments under First Schedule part I of the Constitution contains any nomenclature ‘THE STATE’ for any of the States of the Federation to justify common use of it on a court process especially a charge and a notice of appeal in Nigerian Courts evinced that no provision in the Constitution creating any State of the Federation as ‘THE STATE’ nor is there any provision providing that any State of the Federation be shortened for its call with the nomenclature ‘THE STATE’.
It is importantly important to say here that the writer is not oblivious of the interpretation of the word ‘State’ under section 318 of the Constitution thus:
‘when used otherwise than in relation to one of the component parts of the Federation, includes government’
It is crystal clear that from the interpretation of the word ‘State’ produced above and the introductory paragraph of section 318(1) which reads ‘In this Constitution, unless it is otherwise expressly provided or the context otherwise requires-’ that the meaning of the word ‘State’ given in the Constitution is exclusively for the context for which the word may be used in the Constitution alone and not for such to be used to describe a party on a court process as if such nomenclature ‘THE STATE’ is a creation of the Constitution of the Country.
It is the writer’s stand that the name ‘THE STATE’ is not a juristic person as the name in which initiating process often being filed with description of either party as ‘THE STATE’ is not one known to law as one invested with the legal capacity to sue or be sued in such name.
It is also the writer’s stand that using such nomenclature ‘THE STATE’ often in courts especially where the trial court is in one State different from the State where Court of Appeal is situated creates confusion as to which particular State out of the States of the Federation is the party described as ‘THE STATE’ refers to. By way of illustration, if the criminal action decided on by Ogun State High Court is appealed to the Court of Appeal, Ibadan Judicial Division, how would the Justices know which of the States of the Federation is the nomenclature ‘THE STATE’ refers to? In a flurry of judicial authorities, it has been held that courts are established not to speculate, pontificate, imagine, or conjecture.
It is hereby recommended by way of suggestion that filing an action by a non-juristic person against a juristic person or filing an action against a non-juristic person goes beyond the realm of a mere irregularity or misnomer as it goes to the root of jurisdiction of the court.
It is finally recommended that since the power to initiate criminal proceedings in any court in respect of an offence created by a law of the House is vested in the Attorney-General of the State, each State of the Federation should endeavour to initiate criminal proceedings in the name of Attorney-General of the State stating the name known with that State, i.e. Attorney-General of Oyo State or initiating criminal action with the name known with Such State, i.e. Oyo State of Nigeria or Oyo State Government and use of not known nomenclature ‘THE STATE’ should be put a halt to in initiating criminal action in Nigerian Courts.
S.O. Giwa Esq. a.k.a pentalk (Ibadan based Legal Practitioner), giwa_pentalk@yahoo.com, 08035224192
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