LEGAL TIDBIT

*LEGAL TIDBIT*
_Welcome to the Quintessential Liberty Chambers' Legal Tidbit from the Faculty of Law University of Ilorin_
In this version of Legal Tidbit we'll be looking in to Procedural Law and the topic of the Tidbit is;
*Suing an Unknown Defendant under the Nigerian Procedural Law*
By _Akanni Kamaldeen ✍_
*INTRODUCTION*
      Parties to a suit are one of the preliminary factors that must be considered before commencing a proceeding. They must be legal persons either (a  natural or Juristic person).
In law, there must be different parties to a suit (Plaintiff or Defendant). But the question one should ask is what happens where a person has a claim against a party he/she could not identify? As such, the crux of this tidbit bothers on a consideration of suing an unknown person in Nigerian courts.
*THE JURISPRUDENCE*
       Sometimes, in real life situations, it may happen that a claimant is unable to discover the identity of the person(s) who is infringing on his right(s). This makes it more difficult to know who to hold liable. This becomes more interesting where the cause of action is time bound. In relation to the operative maxim *"vigilantibus non dormientibus, jura subveniunt"* (the law aids the vigilant; it does not aid those who sleep), claimants under pressure often make use of tactics that preserves the limitation period and with the leave of court, the claimant can later substitute the real name of the defendant once it is learned during the discovery process.
Such a suit is against fictitious defendants; A fictitious defendant is a person that cannot be identified by the plaintiff before a lawsuit is commenced. Commonly this person is identified as *"John Doe"* or *"Jane Doe"*.
In Nigerian court parlance, such an unknown person is usually termed person(s) unknown.
*LEGAL POSITION*
      Though any mistake in setting out the names of the parties is not all that fundamental and may be corrected upon relevant application being made. It has been discussed above that a party to a suit must be a competent and a legal person. As otherwise would result to a case being struck out. Thus In the case: *Ndoma-Egba vs. Government of Cross River State (2004) 17 NSCQR 399*, where Niki Tobi J.C.A. reiterated that:
_"Only a natural or juristic person can be joined as a party. Thus, the same rules apply in respect of the original parties in the action, either plaintiff or defendants”_
Applying the foregoing principles to the status of an *“unknown defendant”* or *“unnamed defendant”*, it is apparent that it may be difficult to classify such a nebulous entity as a juristic person with the competence to sue and be sued.
Accordingly, *His Lordship Hon. Justice P.A Akhihiero (in his paper: THE JURISPRUDENCE OF INSTITUTING AN ACTION AGAINST AN UNKNOWN PERSON. 2016, p.5.)*, also stated that;
_"A suit instituted against an unknown person is defective because an unknown person is a nebulous entity without any clear cut features of juristic personality. It will be difficult to ascertain the legal status of such an entity."_
  It can be safe to conclude that the legality of such or its appropriateness is on the negative. However, there are ways around this quagmire which has been provided for by rules of the civil procedure of different states in Nigeria for example, in suits against unknown trespassers or unknown squatters, provisions like; *Orders 53 and Ogun State High Courts (Civil Procedure) Rules, 2009 and 50 of the High Court of Kaduna (Civil Procedure) Rules, 2007 and Order 51 of the Edo State Civil Procedure Rules, 2012 and Order 57 of Lagos State High Courts (Civil Procedure) Rules, 2019. Have made provisions to command an eviction of unknown squatters from land.*
According to *Hon. Justice P.A Akhihiero*, in the paper (supra), This procedure is Sui generis. And has to be properly understood to be judicious utilized. Also, His Lordship (supra), explained that this special procedure was introduced to avoid the injustice and hardship on the part of claimants who are unable to proceed against unknown trespassers because of their inability to identify and serve them as defendants in the suit. *See: Nnodi vs. Thanks Investment Ltd.(7(2005) 11 NWLR (Pt.935) 29.*
*CONCLUSION*
Haven examined the issue of suing an unknown defendants in Nigerian courts, this paper concludes that suing an unknown defendants is inappropriate as a court can not exercise jurisdiction on such an issue as It may result in a legal absurdity if the court proceeds to hearing and delivers judgment in the circumstance.
This may be tantamount to an abuse of court process. In the case of: *Amaefule vs. The State (1988) NWLR (Pt.75) 238* the court held that: “Abuse of process can also mean abuse of legal procedure or improper use of legal process…”
However, where the originating processes is labelled person unknown”, this can be treated as a misnomer which is amendable if the defendants to be added is a juristic person as was held in the case of *Maersk Line vs Addide Investment Ltd (2002) 11 NWLR (Pt.778)317* the Supreme Court stated that it was not a proper proposition to suggest that an amendment cannot be allowed to substitute a non juristic person with a juristic person in the case of a misnomer. Also, in *ACB vs Eurostrade Ltd(1998) 2 NWLR (Pt. 536) 19*, it was held that a misnomer that will vitiate proceedings must be one that raises reasonable doubt as to the identity of the person intending to be sued or be sued.
In conclusion, apart from the position of law in eviction of unknown squatters/trespassers, the above if complied with can help the plaintiff have his/her case adjudicated upon after discovering the proper defendant and adding his/her name on the wit or originating process.
*Liberty Chambers Litigation Bureau*
Signed:-
*D.R. Sarumi*
_Attorney General, Liberty Chambers, Faculty of Law University of Ilorin_
Through:
*Owolabi Faruq Olatomiwa(Lee)*
_Public Relations Officier,Liberty Chambers,Faculty of Law,University of Ilorin._

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