Is a teaching hospital a juristic person capable of being sued in its name?
IN THE COURT OF APPEAL  IN THE ENUGU JUDICIAL DIVISION  HOLDEN AT ENUGU  ON THURSDAY, 22ND FEBRUARY, 2018  BEFORE THEIR LORDSHIPS:  HELEN MORONKEJI OGUNWUMIJU  J.C.A  TOM SHAIBU YAKUBU J.C.A  MISITURA OMODERE BOLAJI-YUSUFF J.C.A  SUIT NO: CA/E/170/2017  BETWEEN  ENGINEER EMMANUEL CHUKWUEMEKA OKEKE   APPELLANT(S)  AND  NNAMDI AZIKIWE UNIVERSITY  TEACHING HOSPITAL  -RESPONDENT(S)  LEAD JUDGMENT DELIVERED BY HELEN MORONKEJI OGUNWUMIJU, J.C.A. Brief facts of the case  Engineer Emmanuel Chukwuemeka Okeke (Appellant) entered into a consultancy agreement with Nnamdi Azikiwe University Teaching Hospital (Respondent). Unfortunately, a dispute arose between the parties to the consultancy contract and in accordance with paragraph 20.0 of the contract; the dispute between the parties was referred to an arbitrator appointed by the President of the Nigeria Institute of Arbitrators. Both parties to the contract participated fully in the arbitration process. Upon completion of the arbitration, the sole arbitrator-Architect Azike Diribe made an award on 26th of March 2015 and Additional Award made on the 6th of May 2015 totaling the sum of N25, 347,174.52 in favour of Engineer Okeke. The arbitral award remained unpaid hence, on 19/4/16 the Appellant as applicant instituted an action by way of Originating Application to enforce the award against the Respondent at the trial Court. Upon receipt of the Originating Application for enforcement of the Arbitral Award, the Respondent, via a motion on notice dated 11/5/16, raised an objection to the jurisdiction of the trial Court to enforce the arbitral award against the Respondent, claiming that the Respondent is a non-juristic party. It was argued that the proper party should have been Nnamdi Azikiwe University Teaching Hospital Board of Management which is the juristic person capable of suing and being sued in its corporate name. The Appellant, in response, filed a counter affidavit to the motion of the Respondent, stating that all agreements entered into by both parties bear the name of the Respondent in which it was sued- Nnamdi Azikiwe University Teaching Hospital. The learned trial judge, in his ruling, struck out the suit on the ground that the Respondent cannot be sued as the Respondent is a non-juristic person. Aggrieved by the trial Courts Ruling, Appellant filed this current appeal. Issues(s) for determination  The issues for determination as formulated by the Appellant and adopted by the Court are:  Whether Nnamdi Azikiwe University Teaching Hospital is a juristic person capable of being sued in its name. Whether an arbitral award can be challenged after three months of its delivery. Appellants submission  Issue one- Whether Nnamdi Azikiwe University Teaching Hospital is a juristic person  The crux of Appellants argument is that Nnamdi Azikiwe University Teaching Hospital is a corporate body vested with a legal personality having the power to sue and be sued in its corporate name according to Section 1 of the Nnamdi Azikiwe University Teaching Hospital Act, Cap N 141 LFN 2004 (2018) LPELR-43781(CA). To the appellant, the intent of the makers of Section 2 of the Nnamdi Azikiwe University Teaching Hospital Act 2004 is to vest legal personality on the Board of Management separate from the University Teaching Hospital, which makes Nnamdi Azikiwe University Teaching Hospital Board of Management a juristic person capable of suing and being sued in its corporate name, and can also acquire, hold, and dispose of immovable property. Appellant maintained that the cause of action in this appeal is against Nnamdi Azikiwe University Teaching Hospital and not the Nnamdi Azikiwe University Teaching Hospital Board of Management as all the agreement entered into by the Appellant and the Respondent in the instant case disclose the name of the Respondent as Nnamdi Azikiwe University Teaching Hospital and not Nnamdi Azikiwe University Teaching Hospital Board of Management. It was further argued that the Respondent actively participated in the arbitration proceedings in the name it was sued and it was against that name that the Arbitral Award was given. And that the Respondent, having dealt with the Appellant in the name it presented, cannot turn around to say it is not a juristic person. ISSUE 2- Whether an arbitral award can be challenged after three months of its delivery. Appellants argument in respect of issue 2 is that the award in this matter was made on 26/3/15 and an additional award was made on 6/5/15. This suit having being brought to enforce the said awards more than a year after the additional award was made by the arbitrator, Appellant submitted that there cannot be a valid objection to the application for registration of the award. Appellant argued further that the Respondents application challenging the jurisdiction of the Court is an attempt aimed at stealthily setting aside the enforcement of the arbitral award, despite the fact that the limitation period for objecting to the arbitral award has expired. Respondents argument  ISSUE ONE- Whether Nnamdi Azikiwe University Teaching Hospital is a juristic person  In this regard, Respondents argument is that the issue of jurisdiction is fundamental in any legal proceeding, and must be determined first before any step can be taken in a matter. The pith of Respondents argument is that Section 1 of the Nnamdi Azikiwe University Teaching Hospital Act relates to the renaming of the Anambra State University of Technology Teaching Hospital Management Board, but did not vest juristic personality on the renamed Teaching Hospital (the Respondent). Respondent argued that the principles of expressio unius est exclusio alterius applies in the instant case, in that, having expressly conferred juristic personality on the Board, the intention to exclude other parties under the Act from having such capacity can be inferred, more especially where no functions or duties were assigned to the said Respondent under the Nnamdi Azikiwe University Teaching Hospital Act, 2004. ISSUE 2- Whether an arbitral award can be challenged after three months of its delivery. It was Respondents argument that their preliminary objection does not relate to the validity or otherwise of the arbitral award itself, but on the legal status of the party against whom the award was made. Further, that the objection to the juristic personality of the Respondent was raised at the arbitral proceedings but was not dealt with on the face of the record. Respondent argued that the objection that the Respondent is not a juristic person relates to the competence of the suit, and it relates to the issue of whether or not the trial Court has jurisdiction over the matter. Respondent reiterated that the issue of jurisdiction can be raised at anytime. Respondent proceeded that although the argument that the challenge that to the arbitral award was out of time was raised at the lower Court, the lower Court struck out the suit for the enforcement of the arbitral award on the ground that the named Respondent to the suit is not a juristic person. Courts opinion  ISSUE 2- Whether an arbitral award can be challenged after three months of its delivery. The Court reinforced the long standing legal principle that a party who has a right to commence or defend an action in Court must be a person known to law, be it a natural person or a creation of statute. The Court perused the relevant provisions of the Nnamdi Azikiwe University Teaching Hospital Act 2014 and posited that while the Act created and re-named the university the Nnamdi Azikiwe University Teaching Hospital, it gave only the Management Board of the Teaching Hospital juristic personality and the power to sue and be sued in its corporate name. Contrary to the Appellants contention, the Court held that even though the Act created the Nnamdi Azikiwe University Teaching Hospital, the Teaching Hospital in itself is not different from the Management Board and thus cannot sue or be sued in its separate name. The Court distinguished juristic personality from misnomer of parties. According to the Court, it is not the specific name under which a person is sued that decides whether or not the person is a juristic person. Rather, it is whether or not a natural person exists who bears that name or a similar name or had in fact hitherto bore that name. On the other hand, a misnomer was described as occurring where the natural or legal person actually exists but a wrong name is used to sue. The Court then classified this case as one of misnomer wherein the Appellant merely got the appropriate name wrong. Adding that there is no doubt that the wrong description of the Respondent has neither misled the Respondent nor cause miscarriage of justice. Although the Statement of Defence at Arbitration raised the issue of the non juristic personality it was later abandoned as both parties participated fully at the arbitration proceedings as the Respondent had submitted fully to the jurisdiction of the Arbitral Tribunal and even paid the sum of N2,067,500.00 being its own share of the cost of Arbitration. The Court concluded by saying that the argument put up by the Respondent and accepted by the learned trial judge that the contract is void because the Respondent as named is not a legal entity smacks of an overt show of bad faith which cannot hold. ISSUE 2- Whether an arbitral award can be challenged after three months of its delivery. ADVERTISEMENT  Upon weighing the parties argument on this issue, the Court posited that there is no challenge to the award itself by the Respondent. However, the Court refuted Respondents argument that the objection to the enforcement of the award is not an attempt to set aside by stealth, the award. The Court pointed out that if indeed, the Respondent were aggrieved by the fact that they were not proper parties to the award or the sums awarded, they were wrong to have folded their hands from when the additional award was made on 6/5/15 till 19/4/16 when the summons was issued to enforce the award. the Court concluded by saying that Section 29 of the Arbitration and Conciliation Act 2004 is enforceable to prevent the Respondent from trying to set aside the award by subterfuge in the circumstances of this case. There the failure to challenge the legality or merit of the award within 3 months as provided by the Act prevents the Respondent from doing so by the time it did. Held  Both issues formulated for the determination of this appeal were resolved in appellants favour. Thus the appeal was allowed. The Court further held that the circumstances of this case are such that unnecessary hardship would be visited on the Appellant if the case is sent back to the trial Court. The motion filed by the appellant on 10/4/16 was thus found meritorious and granted as prayed. Judgment was entered in terms of the arbitral award in respect of the total sum of N25,347,174.52 in favour of the Appellant to be paid by the Nnamdi Azikiwe University Teaching Hospital Board of Management. N100,000 costs was also awarded to the Appellant against the Respondent.