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Application to discharge a party who said he was wrongly served with court processes-It is not the duty of the court to compel a person to defend a matter in which he has no interest whatever-1. MR. PATRICK ANYANWU 2. MR. CASMIRE ANYANWU AND 1. OKECHUKWU COLLINS ANYANWU 2. CHIHUO ANYANWU 3. AUGUSTINE ONUOHA IN RE: ANYANWU NNAEMEKA COLLINS-delivered on 4-11-19 by Hon. Justice Innocent M. Njaka

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IN THE HIGH COURT OF IMO STATE OF NIGERIA

IN THE MBAISE JUDICIAL DIVISION

HOLDEN AT AHIAZU MBAISE

MNDAY, 4TH NOVEMBER 2019

BEFORE HIS LORDSHIP: – HON. JUSTICE I.M.NJAKA.

HAM/62/2019

BETWEEN

  1. MR. PATRICK ANYANWU         PLAINTIFFS/RESPONDENTS
  2. MR. CASMIRE ANYANWU

AND

  1. OKECHUKWU COLLINS ANYANWU
  2. CHIHUO ANYANWU DEFENDANTS/RESPONDENTS
  3. AUGUSTINE ONUOHA

IN RE: ANYANWU NNAEMEKA COLLINS

RULING

By Writ of Summons filed on 30th April 2019 the Plaintiffs claimed against the Defendants as follows:

  1. A declaration of this court that both the 1st plaintiff and the 1st and 2nd defendants are joint owners by customary inheritance and devolution of family property of all Anyanwu’s estate i.e. the subject matter of this suit and the persons entitled to the customary right of occupancy of the subject matter of this suit.
  2. A declaration of this court that by the custom of Umunwachukwuakali in UmualikaUmueze Oboama Ezinihitte Mbaise Local Government Area of Imo state lands in a polygamous home are shared per kitchen; according to the number of wives.
  3. A declaration of this court that the purported sale of part of IhuAlaukwu land sold by the 1st and 2nd defendants to the 3rd defendant without the consent of the 1st plaintiff is unlawful, null and void and of no effect whatsoever.
  4. An order of this court that the lands in dispute which the plaintiffs and the defendants inherited from Anyanwu be shared between the Nkemdirim’s family/kitchen and the Enyidiyas Kitchen according to the custom of Umunwachukwuakali in Umualika Umueze Oboama Ezinihitte Mbaise Local Government Area of Imo State.
  5. An order of this court setting aside the purported sale of part of IhuAlaukwu land sold by the 1st and 2nd defendants to the 3rd
  6. Perpetual injunction restraining the 1st and 2nd defendants from dealing with the lands in dispute without the consent of the 1st plaintiff who is the head and a principal member of the family.
  7. Five million Naira damages against the defendants for selling and dealing with the said lands unlawfully without the consent of the 1st plaintiff and without reference to the 1st

On service of this writ on the Defendants, the Applicant herein one ANYANWU NNAEMEKA COLLINS now brought this application seeking:

AN ORDER discharging the applicant from responding, reacting to or answering the contents of the instant suit and/or Court processes served on the applicant same being vague and not having any nexus with the applicant as per his name, _

The Application is supported by 6 paragraphs affidavit sworn to by the Applicant, ANYANWU NNAEMEKA COLLINS of the family of Anyanwu Okechukwu Theophilus in Umuakali Umualika Umueze Oboama Ezinihitte Local Government Area, Mbaise, Imo State.

His father’s name is late Anyanwu Okechukwu Theophilus and he had no son called Okechukwu Collins Anyanwu, neither is there any person known by the name as Okechukwu Collins Anyanwu in their extended family of Anyanwu.

Sometime last month, he was served a document titled “Writ of Summons” with Statement of Claim and other Court processes summoning him to this Honourable Court to cause appearance to be entered in Suit filed against him by the Claimants. The Writ and Court processes served on him did not identify who the plaintiffs or defendants are as per the heading save that on the Court process served on him was written on it with ink thus: “FOR SERVICE ON THE 1ST DEFENDANT”; a copy of which is herewith annexed as Exhibit “A”. His name is not Okechukwu Collins Anyanwu and he does not know who he is.

The counsel filed a written address. According to the counsel, from the founding affidavit, and other Court processes served on the Applicant, it is clear that the substantive suit and the reliefs sought has no nexus with the Applicant and did not identify him in any way as one of the parties as none of the names of the parties corresponded with the applicant’s name. Hence, the Court is urged to discharge the applicant from answering to the strange suit and/or the Court processes served on him as presently constituted.

The Plaintiffs filed, counter affidavit of 14 paragraphs sworn to by the litigation clerk in the law firm of Ugonna Ihediwa ESQ counsel to the plaintiffs. By virtue of the aforesaid position, he is conversant with the facts and circumstances of this case.

He has the consent of the plaintiffs and that of his employer to depose to this affidavit on their behalf. He was informed by the plaintiffs in their office and during office hours, the said information he believed to be true and correct are Paragraph 1 of the applicant’s affidavit is not true; the name of the 1st defendant is Okechukwu Collins Anyanwu; the above name is what the 1st defendant is known as and addressed as in the village. Paragraph 2 is true save to add that since the 1st defendant’s father died, he has been adding and addressing himself as Okechukwu Collins Anyanwu. Paragraph 3 is true and hereby admitted. Contrary to paragraph 4 and 5 the 1st defendant is aware that he is a defendant in this suit.

The 1st defendant knows that from the history of the land as narrated by the plaintiffs, that he is the 1st defendant in this suit. The 1st defendant knows he has interest in this land and knows that from the genealogy of the land in dispute, he is the 1st defendant in this suit. The present application is brought to waste the time of the court and brought in bad faith. The 1st defendant has not denied that he has no interest in the subject matter of this suit.

It is accompanied by a written address. The Plaintiff raised issue for determination as:

Whether the applicant is entitled to the reliefs sought

According to the Plaintiff, the applicant by his affidavit admitted that He is a Collins Anynwu. The Applicant also admitted that his father’s name is Okechukwu Theophilus Anyanwu. The same applicant in the same Affidavit claims that he is not Okechukwu Collins Anyanwu. However the applicant did not deny that he does not know or have interest in the subject matter of the suit. Neither did the applicant deny that from the history or genealogy of land in dispute as pleaded, he does not know he is the 1st defendant in this suit.

It is submitted that the only ground an application to be discharged can be entertained or granted is only when the applicant is saying that he does not have interest in the matter subject of the suit. The court is urged to so hold.

It is submitted that the import of what the defendant is saying is that his name was incorrectly stated. Having admitted that his name is Nnaemeka Collins Anyanwu and not Okechukwu Collins Anyanwu. Thus the applicant only quarrelling with the name OKECHUKWU which he has admitted was his late father’s name.

It is submitted that where the name of a defendant was incorrectly stated he is not permitted by the rules of this court to be discharged but to bring application for the correction of his name.

Counsel referred the court to Order 13 Rules 5 of the High Court of Imo State Civil Procedure Rules 2017 which states thus:

“Where an action has been instituted against a wrong Defendant or where the name off a defendant has been incorrectly stated, a judge may upon application order a substitution or addition of any person as Defendant or Correction of any such name on any terms as may be just”

Counsel therefore submit that the proper application the 1st defendant is allowed to bring before this court is an application to Correct his name assuming but without conceding his name was incorrectly stated.

Finally it is submitted that the present application must be dismissed as the applicant’s name was rightly stated and he has not denied the he has no interest in the subject matter of this suit. Where the applicant feels his name was wrongly stated he is at liberty to suggest or apply that he be addressed by any name he desires. The applicant by his affidavit has admitted that he is the person sued when he admitted in his affidavit that his father’s name is Okechukwu.

Counsel therefore urged the court to dismiss this application as same is strange to our jurisprudence

On the service of the Plaintiffs’ counter affidavit, the applicant filed FURTHER AFFIDAVIT also deposed to by ANYANWU NNAEMEKA COLLINS. He deposed that his true name is Anyanwu Nnaemeka Collins. Prior to and after the death of his Father, he has also been variously known and addressed officially and in their village, community and beyond as Anyanwu Nnaemeka Collins, Anyanwu Nnaemeka or Collins Nnaemeka Anyanwu or Anyanwu Collins Nnaemeka. Official documents issued in his name both in the past and present including his community and village such as his First School Leaving Certificate dated 18th April, 2002; Certificate of National Service dated 25/8/2009; Certificate of Identification/Origin from Ezinihitte Mbaise Local Government Area dated 7/10/2009; Marriage Certificate dated 23/1/2015; Letter of Identification from his Traditional Ruler, HRH Eze Julius N. Amaefule dated 20/5/2013 and Letter of Appointment as member of ODU Cultural Committee, Oboama Ezinihitte Mbaise dated 8th April, 2019 and his National Voters’ Card, are herewith attached as exhibits B, C, 0, E, F, G, H.

He is more than thirty (30) years old now and married. As a an adult, he has the right to answer and be identified by which ever name(s) he has chosen for himself and such name(s) must not necessarily contain or mandatorily involve his father’s Igbo name “OKECHUKWU”.

The Plaintiffs/Respondents have no right to determine the name by which he should be addressed officially or in their village or community or in the substantive suit.

He does not know from the history of the land in dispute as narrated by the Plaintiffs/Respondents that he is the 1st defendant in this suit as his name is not among the parties sued and the history of the land in dispute did not change his name to Okechukwu Collins Anyanwu. Despite genealogy of the land in dispute, he has no interest in the land in dispute as he is not one of the persons sued in this suit. Even his late Father never gave him the name Collins Anyanwu or Okechukwu Collins Anyanwu.

The further affidavit is accompanied by APPLICANT’S REPLY ON POINTS OF LAW. According to the counsel, the applicant has never admitted that he is known and addressed as Collins Anyanwu or that his name is Collins Anyanwu. Rather, what the applicant admitted is that apart from his name being Anyanwu Nnaemeka Collins, he is also variously known and addressed as Anyanwu Nnaemeka, Anyanwu Collins Nnaemeka or Collins Nnaemeka Anyanwu. Official documents, exhibits B, C,0, E, F, G, Hand J vindicated this assertion.

It is submitted that even if the Plaintiffs/Respondents intended to sue the applicant as 1st defendant in the suit, then as long as he was not sued by the real name for which he chose for himself and by which he is known and addressed by the public, being a natural person, the suit is incompetent as it regards to him and the court lacks jurisdiction to entertain the suit against the applicant even if he has interest in the suit. Referred to Principal, Government Secondary School, Ikachi V. Igbudu (2006) ALL FWLR (Pt. 299) 1420 at 1441, paragraphs D – E,

According to counsel, also, the Law is trite that an adult or a natural person have the right to choose to answer a particular name(s) which may or may not include his father’s or grandfather’s name, or a combination of both and it is a matter of personal choice and once chosen and known by that name or of various other names, no person or authority has the right to change that name unless and until the contrary is proved or a criminal intent is established, which is not the case in the instant substantive suit. Referred to Haske V. Magaji (2009) ALL FWLR (Pt. 461) 887 at PP. 906 – 907, paragraphs G – C,; A.D. V. Fayose (2005) 10 NWLR (Pt. 932) 151 at 193, paragraphs B – C, per Nsofor JCA

It is further submitted that Order 13 Rule 5 of this Court did not impose any duty on any defendant whose name has been incorrectly stated in a suit to apply to the Court to substitute the correct name. The Law rather makes it mandatory for the Plaintiff to sue natural persons by their real name or any of the real names for which the person is known and addressed and until such is done, the suit cannot be said to be competent against such a juristic person no matter whatever interest that person might have in the suit. See: Zain (Nig.) Ltd V. Ilorin (2013) ALL FWLR (Pt. 681) 1518 at 1566 to 1568, paragraphs F – C.

Finally, it is submitted that the instant suit has no nexus with the applicant who was served exhibit A meant for the 1st defendant (whom the applicant does not know) and the applicant ought to be discharged by this honourable court which, commanded him to appear before it within 42 days of service of the writ of summons and other Court processes on him, the applicant not being addressed or known by the name – OKECHUKWU COLLINS ANYANWU sued as the 1st defendant in this suit.

RESOLUTION OF MATTER:

The Applicant here is saying that the court process was served on him in error. He does not know about the subject matter or the parties involved. Specifically he is not the 1st Defendant and the process meant for 1st Defendant was wrongly or erroneously served on him. He prays the court to discharge him from responding to the writ.

On the other hands, the Plaintiffs insist that the Applicant is the person they sued as 1st Defendant and the name by which he is sued is the name of the Applicant.

The Applicant is not saying he was sued in wrong name. Or that the wrong name by which he has been sued should be substituted with his rightful name. The Applicant to my understanding denied knowledge of the subject matter and the parties in this suit.

Again the Plaintiff is not requesting that the name on the writ as the 1st Defendant should be substituted with the name which the Applicant has said is his name.

In ARAB CONTRACTORS (O.A.O.) NIGERIA LTD. v. EL-RAPHAAL HOSPITAL AND MATERNITY HOME INVESTMENT CO. LTD. & ANOR (2009) LPELR-8735(CA) it is stated:

“Where there is a mistake as to the name of a party to litigation, such a mistake is described as misnomer. A misnomer simply means a wrong use of name. It is a mistake as to the name and not a mistake as to the identity of the party to the litigation. In case of a misnomer, an application can be made to amend the Writ to substitute a juristic person for a non-juristic person but the Plaintiff seeking the amendment has a duty to show there were reasonable grounds of excuse in his use of the wrong name or in naming the Defendant wrongly. See Maersk Line v. Addide Investment Ltd. (2002) II NWLR Pt. 778 Page 317 at 377.” Per ABOKI, J.C.A.(Pp. 19-20, paras. G-C

What I am struggling to say is that none of the parties before me, in a clear term, is asking for substitution of name. Each maintained his stand on the identity and the name of the person sued as the 1st Defendant. This court cannot give what is not asked of it. So substitution is out of it. The Court is not a Father Christmas dishing out gifts unsolicited or granting reliefs not sought or claimed by parties gratuitously. See AYOADE VS SPRING BANK PLC (2014) 4 NWLR (PT.1396) 93 AT 132.

I am not unaware of Order 13 Rules 5 of the High Court of Imo State Civil Procedure Rules2017 which states thus:

“Where an action has been instituted against a wrong Defendant or where the name of a defendant has been incorrectly stated, a judge may upon application order a substitution or addition of any person as Defendant or Correction of any such name on any terms as may be just”

The court can only exercise this power ‘upon application’. There is no such application before the court.

In the circumstance since the Applicant is saying he has no nexus whatever with the reliefs sought by the Plaintiffs and that the process in this case was served on him erroneously and on him as a person who is not a party in this suit and who does not have interest in the subject matter or reliefs sought in this suit, I think he should be discharged according to his request.

 

It is not the duty of the court to compel a person to defend a matter in which he has no interest whatever. The application dated 6th June 2019 and filed on 7th June 2019 is accordingly granted.

I so hold

I.M.NJAKA

Judge

4-11-19

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