PLATEAU STATE GOVERNMENT V. CREST HOTEL & GARDEN LTD (2014)

PLATEAU STATE GOVERNMENT V. CREST HOTEL & GARDEN LTD

(2014)LCN/7634(CA)

In The Court of Appeal of Nigeria

On Monday, the 28th day of May, 2012

CA/J/57/2010

RATIO

APPEAL: PRELIMINARY OBJECTION; PROCEDURE LAID DOWN AS TO HOW AND WHEN PRELIMINARY OBJECTIONS ARE TO BE DEALT WITH
Plethora of authorities avail wherein procedure is laid down as to how and when preliminary objections are to be dealt with. In the case of Onwuko v. Ononuju (2009) 11 NWLR (Pt. 1151) 174 their Lordships of the apex Court held that the Appellant had failed to comply with the provisions of Order 3 Rule 15 (1) of the Court of Appeal Rules 2002 on requirement of raising preliminary objection. In the said authority for instance Chukwuma-Eneh JSC at page 202 – 203 held and said:
“Although an objection can be set out in the brief of argument, if is also incumbent on the applicant as
appellant here to file a formal notice of preliminary objecting stating the grounds thereof at least 3 days to the hearing of the appeal. And more importantly it has to be moved otherwise it is deemed waived. See: Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285; (1990) 5 5CNJ 174 at 180 182; O.S.H.C. v. Ogunsola (2000) 14 NWLR (Pt. 657) 431 at 440; Ariori 4 Ors. v. Elemo 4 Ors (1983) 1 SC 13 at 16 – 17. “
Pertinent to restate in the case of hand that the Respondent did not move his preliminary objection even though it has been clearly set out in the brief of argument. The error or neglect is not trivial as it may tend to portray. It is fundamental especially when considered in the light of the authorities earlier Stated. The objection is hereby deemed waived and also abandoned.

Further related authorities on the some principle are the cases of Igbah V Ugbah (2009) 3NWLR (Pt 1127) 108 at 118 -119 where the court held and affirmed the significance of having to raise and argue preliminary objection timeously. The essence is for purpose of deciding whether or not the appeal is competent so as to confer jurisdiction on the court. See the case of Amgbare V Sylva (2007) 18 NWLR (Pt 1065) 1 at 28 and N.I.W. A.V.S.T.B. Plc (2008) 2 NWLR (Pt. 1072) 483 at 502.
The court therefore has the duty to determine one way or the other once it has been raised.

PRACTICE AND PROCEEDINGS: PLEADINGS; WHETHER PARTIES ARE BOUND BY THE STATE OF THEIR PLEADINGS
It is trite law and very elementary but firmly established that parties are bound by the State of their pleadings. Issues are also only joined and contested between parties on the basis of the facts which are contained in their pleadings. See the case of Oguejiofor V. Siemens Ltd (2008) 2 NWLR (Pt. 1071) 283. per. CLARA BATA OGUNBIYI, J.C.A

APPEAL: WHETHER A PARTY IS NOT PERMITTED ON APPEAL TO EXCHANGE ON APPEAL THE CASE HE HAD MADE AT THE TRIAL COURT

Without having to be labour the point and as rightly submitted by the learned Respondent’s counsel, the question of whether or not a resolution exists and, authorizing of the action is a matter of fact which needs be proved by evidence. Needless to re-iterate also that on appeal is a continuation of the original suit; hence the deciding factor must originate from the beginning. See the case of I .M.N.L. v. Pegofor Ind. Ltd. (2005) 15 NWLR (Pt. 947) I wherein their Lordships of the apex court per Edozie
JSC had this to say at page 19 amongst others:
“A party is not permitted on appeal to exchange the case he had made at the trial court since an appeal is simply the continuation of the case Put forward in the court of first instance: Oredoyin V Arowolo (1989) 4 NWLR (Pt.114) 172; Edebiri V. Edebiri (1994) 4 NWLR (Pt. 498) 165 at 174. It is also not permissible for a party to make a case contrary to his pleadings or evidence: Cardoso V Executor of the Estate of Doherty (1938) 4 WACA 78; George Vs Dominon Flour Mills Ltd. (1963) 1 SC NLR 117; Orizu V. Anyaegbunam (1978) 5 SC” per. CLARA BATA OGUNBIYI, J.C.A

PRACTICE AND PROCEDURE: PLEADINGS; THE EFFECT OF FACTS IN PLEADINGS NOT SUBSTANTIATED BY EVIDENCE

The law is well settled that facts in pleadings not substantiated by evidence are deemed abandoned. per. CLARA BATA OGUNBIYI, J.C.A

APPEAL: GROUND OF APPEAL AND ISSUE FOR DETERMINATION; WHETHER EVERY GROUND OF APPEAL MUST ARISE FROM THE DECISION OF A JUDGMENT OF THE COURT AND THE CONSEQUENCE OF AN ISSUE THAT IS BASED ON AN INCOMPETENT GROUND OF APPEAL

The law is trite and well settled that every ground of appeal must arise from the decision of a judgement of the court. Every ground therefore must relate to the judgement appealed against. See the decision of this court in the case of Obi-Odu Vs Duke (2006) 1 NWLR (Pt 961) 375 wherein Ba’aba JCA at Page 408 said:
“A ground of appeal ought to relate to the judgement appealed against and be a challenge to the validity of the decision. See Degi Vs Francis (1999) 3 NWLR (Pt 596) 576. It is the law that a ground of appeal must stem from the ratio decidendi of a judgement and not on any extraneous matter or obiter dictum of the court… “

JUSTICE

CLARA BATA OGUNBIYIJustice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEYJustice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPEJustice of The Court of Appeal of Nigeria

Between

PLATEAU STATE GOVERNMENTAppellant(s)

AND

CREST HOTEL & GARDEN LTDRespondent(s)

CLARA BATA OGUNBIYI, J.C.A (Delivering the Leading Judgment): On the 27th May, 2007, the Plaintiff/Respondent having sought and obtained the leave of the trial High Court Jos, commenced an action on an undefended list against the Defendant/Appellant. In the writ of summons, the Plaintiff claimed the sum of N5,218,029.50k (Five million, Two hundred and Eighteen thousand, twenty nine Naira Fifty kobo) only being the balance of the total biff of the Defendant’s permanent Secretary’s anniversary and listed bills covering the periods of July – November 2006. The Plaintiff also claimed interest and cost of the action.
In compliance with the rules of Court, the Defendant / Appellant filed a notice of intention dated 15/8/2007. The trial Court upon consideration of the defence transferred the suit to the general cause list, whereupon pleadings were ordered to be exchanged. With issues having been duly joined, the Plaintiff called two witnesses (PW1 and PW2) and tendered three Exhibits 1, 2 and 3. The Defendant/Appellant on its part called three witnesses. At the close of hearing, the parties filed and adopted their respective written addresses. The lower Court in its judgment delivered on the 22nd July, 2009 granted the Plaintiff’s claims in reliefs (a), (c) and (d). The Defendant being dissatisfied with the judgment of the Court, filed a notice of appeal on the 28th July, 2009 and containing four grounds of appeal as set out of pages 142 – 144 of the record of appeal.
The brief facts of this case as could be deduced from the record is that the Plaintiff /Respondent is a Limited Liability Company duly registered and carries on business of hotel, Catering and Tourism in Jos, Plateau State. The Defendant/Appellant is the Plateau State Government, duly recognized by the Constitution as one of the thirty six States in the Federating units of Nigeria. The Plaintiff alleged that it rendered professional services to the Defendant’s permanent secretary’s wedding anniversary, and at other various times provided accommodation to the Defendant’s guests of the request of the Defendant. That between July November 2006, the Defendant’s outstanding indebtedness to the Plaintiff on account of such service stool of N5,218,029.50k. That despite several demands, the Defendant/Appellant failed or defaulted to meet her financial obligations to the Plaintiff /Respondent.
The Defendant/Appellant on its part filed a defence dated 15th day of August, 2007 wherein it denied the totality of the liability alleged. The appeal was duly entered in this Court vide the transmission of the record on the 10th May, 2010. In compliance with the rules of Court parties exchanged their briefs of arguments. While that of the Appellant was dated and filed on the 24th June, 2010, the Respondent’s brief dated 3rd December, 2010 was filed on the 6th December, 2010.
On the 1st March, 2012 Mr. E.C. Pwajok Hon. Attorney-General Plateau State appeared in company of G.D. Fomyong (DDPP), R.J. Kakok DDCR/LR, J.D. Longden ADPP and R.K. Shaseet (Mrs) Assistant Director and represented the Appellant. Mr. O. Akobundu also announced his appearance for the Respondent. Both counsel of the hearing of the appeal adopted and relied on their respective briefs. At the instance of the Respondent, a notice of preliminary objection was raised and an argument in respect of same was embedded in the Respondent’s brief of arguments. The learned counsel Mr. Akobundu however did not deem it expedient to timeously take up the objection but informed the Court only after the learned Appellant’s counsel had argued his appeal.
Plethora of authorities avail wherein procedure is laid down as to how and when preliminary objections are to be dealt with. In the case of Onwuko v. Ononuju (2009) 11 NWLR (Pt. 1151) 174 their Lordships of the apex Court held that the Appellant had failed to comply with the provisions of Order 3 Rule 15 (1) of the Court of Appeal Rules 2002 on requirement of raising preliminary objection. In the said authority for instance Chukwuma-Eneh JSC at page 202 – 203 held and said:
“Although an objection can be set out in the brief of argument, if is also incumbent on the applicant as
appellant here to file a formal notice of preliminary objecting stating the grounds thereof at least 3 days to the hearing of the appeal. And more importantly it has to be moved otherwise it is deemed waived. See: Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285; (1990) 5 5CNJ 174 at 180 182; O.S.H.C. v. Ogunsola (2000) 14 NWLR (Pt. 657) 431 at 440; Ariori 4 Ors. v. Elemo 4 Ors (1983) 1 SC 13 at 16 – 17. ”
Pertinent to restate in the case of hand that the Respondent did not move his preliminary objection even though it has been clearly set out in the brief of argument. The error or neglect is not trivial as it may tend to portray. It is fundamental especially when considered in the light of the authorities earlier Stated. The objection is hereby deemed waived and also abandoned.

Also in the case of Governor Imo State V Amuzie (2009) 13 NWLR (pt 1157) 34 at 58- 59, on the principle of how to raise preliminary objection to an appeal, this court had the following Pronouncement to make and said:-
“a respondent is at liberty to incorporate the notice of preliminary objection in the brief of argument thereof, provided however that the leave of the court is sought and obtained prior to the moving of the said objection at the hearing of the appeal … ”
Relying also on the Supreme Court authority of Nsirim V Nsirim (Supra) the effect of the failure or non-compliance with the provision of the law is to render such notice of preliminary objection as deemed abandoned and liable to be struck out.
A further related authority is also the case of Williams V. Ibejiako (2008) 15 NWLR (Pt 1110) 367 wherein this court at Page 381 of the report had thus to say amongst others:
“On the authorities Set out earlier on the need for such preliminary objection to be moved at the hearing and the consequence of failure or omission to do so, the learned counsel is deemed to have abandoned the preliminary objection, prior or separate notice of which he did not give. All submissions contained in the 1st respondents brief on the preliminary objection are like it deemed abandoned thereby and would be discountenanced. See also Magit v. University of Agriculture Makurdi (2005) 19 NWLR (Pt.959) 211.” For all said and done, the preliminary objection raised by the Respondent having been abandoned is hereby struck out. It is therefore no longer a subject of discussion having been dead and buried.
The four grounds of appeal with their particulars are as follows:
Ground 1
The judgement of the court is against the weight of evidence.
Ground 2
The learned trial judge misdirected himself when he held that the Respondent has proved its case against the Appellant.
Particulars of Misdirection
The lower court did not have regard to the totality of evidence adduced and the exhibits tendered i.e. exhibits 1, 2, 3 and 4.
Grounds 3
The lower court erred in law when if assumed jurisdiction to determine the suit in the absence of a Resolution of the Board of the Respondent authorizing same.
Particulars of Error
(a) The Respondent is a limited liability company.
(b) There was no resolution of the board of the Respondent authorizing the suit.
(c) The lower court has no jurisdiction to hear the suit.
Ground 4
The lower court erred in law when it held “it is morally wrong for a person or institution that has benefitted from an agreement to try to void the said agreement.”
Particulars of Error
(a) The Respondent did not have evidence of a formal agreement of contract of service with the Appellant.
(b) The lower court placed undue reliance on conduct of parties which is not an empirical proof.
From the four grounds of appeal, while the Appellant formulated three issues for determination, that of the Respondent was twofold. Pertinent to restate however that on a careful perusal of the issues raised by both parties, same are very much similar with very little variations only in the use of language and without necessarily changing the interpretational substance of the complaint put forth. I shall therefore adopt and reproduce the two issues formulated by the Respondent which are encompassive and sufficient for purpose of determining this appeal:
Issues:
(a) Whether the defendant joined issues with the plaintiff on the authority of the plaintiff to initiate the action, to warrant the production of a resolution of the plaintiff.
(b) Whether the plaintiff proved her claim to be entitled to judgment.
Submitting on the 1st issue raised, the learned appellant’s counsel, copiously cited and relied on the provision of section 244 (1) of Companies and Allied Matters Act (CAMA), 1990 and argued as unquestionably clear that the management of a company is the collective duty of the Board of Directors. That it is also firmly established that no person can institute an action in the name of the company unless it is so instituted on the authorization of the company upon the resolution of the Board of the Directors or the resolution of shareholders. That in the absence of aforesaid resolution, any action so instituted on behalf of the company is a nullity. The learned counsel cited a number of authorities in substantiation of his submission to show the totality of the claim. See for instance the cases of: Provincial Highway Chemist (Nig.) Ltd. Vs S.S. Umaru & 2005 (1996) F.G.C.L.R. 196 and Trans Atlantic Shipping Agency Ltd and Anor Vs Dan Trans. Nigeria Ltd. (1996) 10 NWLR (Pt 478) 360 at 368, After reliance was also made on the case of Haston (Nig.) Ltd. Vs . A.C.B. Plc (2002) 7SC (Pt. 11) 54 at 65. That the court in the absence of jurisdiction had acted in vain and hence this court should therefore on this issue of law the appellant’s appeal.
In response to the submission on the 1st issue raised, the learned Respondent’s counsel argued in great depth the incompetence of the 1st issue as formulated by the appellant by reason that parties did not join issue on some as it was not on issue by the parties at the lower court. That contrary to the arguments advanced by appellant’s counsel, there is no requirement of the law that provides for the production of the Board resolution before the plaintiffs can be conferred with competence to maintain an action. That order 25 rule 6 of the High Court Civil Procedure Rules 1987 is very relevant and operational in the case of this nature wherein the appellant was expected and required to plead as a special defence being a condition precedent before suit could be competent. That since the defendant had failed to plead the said defence, he could not therefore rely thereon now on appeal as it will either overreach or take the plaintiff by surprise. That even if the legal capacity of the plaintiff to institute the action was on issue, counsel submitted that the authority to lay such a challenge did not lie within the competence of the defendant/appellant to raise. That this principle is in keeping with the decision of this court in the case of Ejekam V Davou Ind. Ltd (1998) 1 NWLR (Pt. 534) 417 wherein Pats-Acholonu, JCA (of blessed memory and as he then was) held thus at page 433 and said:
“I however hold the view that where the court is faced with a situation as to whether or not a Person either as Director or one who holds himself as one who initiated the proceedings on behalf of the company, a doubt is created in the mind of the court it should go along with the matter leaving it with the company to apply to set it aside as an interested Party.”
The some principle was adopted and applied in the case of Ivory Merchant Bank V. Makham (2002) 1 NWLR (Pt 147) 85-86 Per Oguntade J .C. A. (as he also then was).
The learned counsel therefore submitted that the plaintiff/Respondent’s suit was very competent and hence is firmly within the jurisdiction of the trial court to entertain. That contrary to the submission by the appellant’s counsel, the plaintiff /Respondent did not require the production of any resolution authorizing the filing of the suit to render some competent, since the parties never joined issues in that
respect. That section 244(1) of CAMA relied upon by the learned appellant’s counsel does not require the production of any resolution as an authority before the initiation of the action. That section 299 of CAMA had been duly complied with. The learned counsel on the totality submitted the incompetence of ground 3 of the notice of appeal as well as the issue predicated thereon and urged that the said issue be resolved in favour of the Respondent.
The appellant’s issue no. 1, was formulated from ground 3 of the ground of appeal which has been reproduced earlier in the course of this judgement for reference. The grouse of the complaint questions the existence or otherwise of a resolution authorizing the suit. The crux as sought to portray by the appellant is whether parties did indeed join issue on this complaint. While the appellant made a heavy weather by standing grandeur and anchored its appeal on this point, the Respondent submits the appellant’s opinion as mere chaff ready to be carried away by passing of the breeze that does not return. In otherwords the standing pivot has no foundation as its anchoring basis.
It is trite law and very elementary but firmly established that parties are bound by the State of their pleadings. Issues are also only joined and contested between parties on the basis of the facts which are contained in their pleadings. See the case of Oguejiofor V. Siemens Ltd (2008) 2 NWLR (Pt. 1071) 283.

The appellant in the case of hand alleges that the plaintiff /Respondent lacks the capacity to sue and the implication which had rendered the court not properly constituted and therefore lacked jurisdiction. Order 25 Rule 6(1) and (2) of the rules of the High Court (supra) is very clear on what is expected of a party seeking to raise or rely on a defence of this nature.
The reproduction of the said provisions which require that such specific facts must be pleaded, would give a clearer understanding “6(1) A party shall plead specifically any matter for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality which, if not specifically pleaded might take the opposite party by surprise.
(2) Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or the defendant, as the case may be; and subject thereto, an averment of the performance or occurrence of all conditions thereto, precedent necessary for the case of the plaintiff or defendant shall be implied in his pleadings.”
Note in particular the phrase “matters which must be specifically Pleaded”, which is of great significance. Regard should also be had to the use of the word “shall” in subsection (1) of the rules (supra), and which is mandatory in nature.
The fact of a resolution authorizing the suit is a condition precedent and which compels that the appellant as defendant must have pleaded some in its Statement of defence. It has been held times without number that parties are bound by their pleadings which serve a nucleus of either the plaintiff or defendant’s case. There can be no short circuiting or derogation from the established and laid down principle. In other words, for the appellants argument and issue to be sustained, the state of pleadings of parties must relate with issues having been joined on such claim between the parties. The parties must therefore have joined issues on the authority or resolution to sue.
On the State of pleadings of parties, the plaintiff /Respondent at paragraph 7 page 17 of the record of appeal averred and said:
“1. The plaintiff is a limited liability company duly incorporated in Nigeria and engage in Hotel business with its principal place of business along Old Airport Road, Jos, Plateau State”.
In response to this fact, the defendant/appellant by its defence at paragraph 2 reference page 24 of the record denied the facts wherein it said:
“2 The defendant denies paragraph 1 of the claim and put the plaintiff to the strictest proof thereof”.
In its reply further this is what the plaintiff had to say at paragraph 1 of its reply at page 29 of the record:
“1. The plaintiff avers as contained in paragraph 1 of its statement of claim that it is a limited liability company duly incorporated in Nigeria in accordance with the law guiding same. The certificate of incorporation is hereby pleaded”.
One Mr. Thomas Amidi Willy gave evidence for the plaintiff/Respondent’s as PW1. That he is the personnel manager and also in charge of the front office department as well as presenting accounts to the Accounts Department. That he knew the defendant in this case. At page 94 of the record, the witness testified to the incorporation of the plaintiff on 18/7/2003 and also identified the Certificate of incorporation which was duly tendered, admitted and marked Exhibit 4.
On the part of the Defence, three witnesses testified wherein one Sunday Garba Biggs gave evidence as DW 1 and said that he is a civil servant with the Plateau State Government and holds the position as Director of protocol. He is also in charge of arranging activities to be attended by the Governor. By virtue of his position he knows the plaintiff. The witness testified in respect of Exhibits 7 and 2.
PW2 was one Nanpak Domkat also a civil servant who is charged with the management of 14 units Government Guest Houses. He is also a Senior protocol Officer. He had worked in such capacity for 15 Years and still occupies the office. The witness identified exhibits 1 & 2 but knew nothing about Exhibit 3.
DW3 was one Richard Tokma, a civil servant with the Plateau State Government. He is the Secretary Administration and Finance Government House and had held the position from 2007 to the date of evidence- This therefore concluded the Defence Witnesses.
From the totality of the witnesses called in particular by the defence, it did not lead evidence in support of the averment of paragraph 2 of the Statement of defence which denied the incorporation of the plaintiff as a Limited Liability Company. The law is well settled that facts in pleadings not substantiated by evidence are deemed abandoned. The plaintiff /Respondent did not only give evidence to establish its incorporation as a Limited Liability Company but it went a step further and admitted the Certificate of incorporation in evidence and marked Exhibit 4.
In the light of the foregoing deduction, Ground 3 of the appellant’s notice of Appeal alleging error by the trial court when it assumed jurisdiction is not, as rightly submitted by the learned Respondent’s counsel, borne out of any pleadings. There is also nowhere on the record of appeal that some was addressed upon by the lower court.
In otherwords, there was no finding by the trial court on the existence or otherwise of a resolution authorizing the suit. The sustenance of the ground of appeal as contemplated would presuppose that such finding must exists as a ratio decidendi and forms the basis of the ground of appeal complained of. The law is trite and well settled that every ground of appeal must arise from the decision of a judgement of the court. Every ground therefore must relate to the judgement appealed against. See the decision of this court in the case of Obi-Odu Vs Duke (2006) 1 NWLR (Pt 961) 375 wherein Ba’aba JCA at Page 408 said:
“A ground of appeal ought to relate to the judgement appealed against and be a challenge to the validity of the decision. See Degi Vs Francis (1999) 3 NWLR (Pt 596) 576. It is the law that a ground of appeal must stem from the ratio decidendi of a judgement and not on any extraneous matter or obiter dictum of the court… ”

Also in the case of Ilobachie V Ilobachie (2000) 5 NWLR (Pt 656) 178 at 203 Olagunju JCA (of blessed memory) said thus:
“where the factual basis for attacking a judgement is false or non-existent the ground of appeal based on the fictitious or misleading premise is incompetent…see Alakija V Abdullai (1995) 5 SCNJ 1, 18.”
Their Lordships of the apex court confirmed this position in the case of M.B.N. Plc V Nwobodo (2005) 14 NWLR (Pt. 945) 379 at Page 387 per Pats-Acholonu JSC (of blessed memory) and said: “it is always an elementary law that grounds of appeal must of necessity arise from the judgement, ruling or decision or any Pronouncement of the court below. When a ground has not the remotest connection with what the court below decided and which agitated the mind of the appellant to seek for a review and overturn the decision, but he misconceived what he ought to complain against and confuse himself by setting up a case not in existence, the appellate court will naturally throw away the incompetent appeal. ”
The natural consequential effect of an issue that is based on an incompetent ground of appeal is that it lacks competence and is liable to be struck out. See the case of Ngige V. Obi (2006) 14 NWLR (Pt 999) 1 at 165. On the some principle and in the case of Awuse V. Odili (2005) 16 NWLR (pt. 952) 416, Salami JCA (as he then was) held at 462 and said:
“A ground of appeal is always directed against a ratio decidendi of a lower court and can never be at large… this is because an appeal Presupposes the existence of court decision appealed against… A ground of appeal that is not related to nor challenges the validity of any ratio decidendi in the judgement on appeal is void and is liable to striking out…”
On the total perusal of the record of this appeal, there is nowhere in the said judgement sought to appeal did the learned trial judge make any findings as to the competence of the action, or the necessity for resolution to render the action incompetent. A party is not allowed to deviate from his original position from that of the trial court and sets up a different case on appeal. The authorities in the cases of Ngige V. Obi (supra) 1 at 207 and Ndayako V Mohammed (2006) 17 NWLR (Pt. 1009) 655 at 679 are relevant in point. This is opt because an appeal is simply a continuation of the case put forward in the court of first instance as earlier related to in the case of T.M.N.L. V Pegofor Ind. Ltd. (Supra).
The learned appellant’s counsel in seeking for anchoring leverage in the cases of Trans Atlantic Shipping Agency Ltd. And Anor Vs Dan Trans. Nigeria Ltd (1996) 10 NWLR (Pt. 478) 360 and Haston (Nig.) Ltd. Vs A.C.B Plc (2002) 7SC (Pt 11) 54 submitted that the tendering of the resolution is a necessity and could not be dispensed with. As rightly submitted and argued by the learned Respondent’s counsel the said two authorities under reference are remarkably distinguishable from the case at hand. For instance in the case of A.C.B. Plc V Haston Nig. Ltd. under reference, there was a challenge to the Respondent’s company to initiate the action. The defendants in that case also did specifically plead and contend that the action was not initiated on the authority of the company. The challenge was not therefore on the basis of the company not being a juristic entity. In other words, while parties did join issues on the legal capacity of the plaintiff, some cannot be said on the capacity initiating the action. It would appear that the appellant by arguing that the plaintiff /Respondent needed to have produced the resolution authority for the suit is towing towards a fresh issue. This not being the initial case of the trial cannot now be slotted in at this stage.
The defendant/appellant did not discharge the burden of specifically pleading the defence which was a condition precedent. To allow the appellant to now rely on a nonexistent State of affairs, would be prejudicial to the plaintiff /Respondent who would certainly be overreached as having been taken by surprise.
The appellant’s counsel in his submission also relied heavily on the provision of Section 244(1) of the Companies and Allied Matters Act 1990 (CAMA) which reproduction states:
“244(1) Directors of a company registered under this Act are Persons duly approved by the company to direct and manage the business of the company”.
Section 299 of the some CAMA which is most applicable also States thus:
“299. Subject to the provisions of the Act, where an irregularity has been committed in the course of a company s affairs or any wrong has been done to the company, only the company can sue to remedy that wrong and only the company can ratify the irregular conduct. ”
While Section 244(1) defines who are Directors, Section 299 clearly restates the power of a company to sue for a wrong or ratify irregular conduct. From all indication, the provision of section 244(1) of CAMA has nothing to do with production of a resolution as on authority before initiation of an action. The appellant from all deductions appear to have misconceived the interpretation of section 244 (supra). Rather and as rightly submitted by the learned Respondent’s counsel, the plaintiff/respondent in the initiation of its suit did comply with the relevant section i .e to say Section 299 of CAMA. In other words, the action was initiated in the name of the company; the relief and remedy sought was also in respect of the wrong done to the company who in this case was the plaintiff/Respondent. There is nowhere provided by Section 299 that the plaintiff or any company must produce a resolution authorizing the action so initiated. It is only where a suit is filed in the name of the company without its authority, that the issue of a resolution can arise if and only if there is a challenge to the institution of the action. The authority to sue was not challenged in the matter at hand. No duty therefore lie on the plaintiff to have lead evidence on the need for authority or resolution.
The appellant in its submission relied on a number of authorities which in the ordinary course of events would have been relevant and applicable where issues were properly joined. In the circumstance of the case under consideration, I hasten to odd that the authorities cited are of no relevance and therefore inapplicable.
It is also relevant to add that the absence of a reply to the Respondent’s argument on the competence of ground of appeal no. 3 would go a long way in speaking volumes against the appellant. On the said 1st issue therefore, it is not correct to say that the suit of the trial court was either incompetent or that the lower court lacked the jurisdiction to entertain the action. The plaintiff /Respondent did not, contrary to the submission by the appellant’s learned counsel, require the production of any resolution authorizing the filing of the suit, to render some competent. Parties on the totality never joined issues in that regard. The said issue is therefore resolved against the appellant and in favour of the Respondent. Appellant’s issues 2 and 3 could relevantly be taken together and be accommodated into the Respondent’s issue 2 which poses the question:-
Whether the plaintiff proved her claim to be entitled to judgement?
The learned appellant’s counsel on behalf of his client centered his arguments on the absence of evidence of a formal agreement for contract of service with the Respondent. That the evidence of the Defence witnesses, DW1, DW2 and DW3 at pages 104, 108 and 112 respectively which State that it is not the responsibility of the Defendant to sponsor the social event of any of its top official was unchallenged. That this position was buttressed by the evidence of PW2 which should be taken together with the contents of Exhibits 1 and 2 which counsel submitted emanated from the plaintiff /Respondent  himself. That in the absence of any evidence of approval by the Governor of Exhibits 1 and 2, the fact remains uncontroverted that the Defendant/Appellant never sponsored the social event of any of its officials. Counsel to buttress his submission relied on the case of Lawal VS UTC. Nig. Ltd (2005) 13 NWLR (Pt. 943) P 601 at 622. That Exhibits 1 and 2 which are the Statements of Hotel Bills were only acknowledged by the Defendant/Appellant as normal procedure in the course of duty which did not signify an approval.
Furthermore that the bill numbers and room numbers of the supposed guests listed from pages 15-16 of Exhibit 3 do not correspond with Exhibits 1 and 2. That exhibit 3 which was not even signed is inadmissible to prove a claim. Reference in support was made to the authorities in the cases of FASESHUN Vs A.G. FEDERATION (2006) 6 NWLR (Pt975) P.148, LAWAL V. U.T.C. (supra) at page 618 and AIKI Vs IDOWUN (2006) 9 NWLR (Pt. 984) P.50. That going by Exhibits 1, 2 and 3 which lack substratum and without any nexus with the Defendant/Appellant, the issue of indebtedness cannot be contemplated. That the Respondent did not place any evidence of a formal agreement for contract of service with the appellant. Furthermore that the trial court relied only on the conduct of parties which is not on empirical proof. Reference was relied on the case of LAGGA V SARHUNA (2008) 6-7 SC (Pt.1) P.101 at 142.
On the counsel’s further submission as to whether a court can give judgement upon evidence that is not before it, the general principle of law on evaluation of evidence was graphically related to. In other words, stern reference was related to the duty of the trial court who has the primary function of ascribing probative value to such evidence by reason of having seen, heard and had the, on the spot, assessment of the witness. That where the trial court therefore fails to live up to its expectation the Court of Appeal has the mandate to invoke its powers under Section 15 of the Court of Appeal Act as it has been done in the case of Ayanru VS Mandilas Ltd. (2007) 4 SC (Pt III) P.58 at 88.
That there was no evidence before the court to warrant the decision and pronouncement arrived at page 139 paragraphs 1 and 2 of the record of proceedings. The counsel in the circumstance urged this court therefore to make its own findings from the evidence available on the record to the effect that there was no evidence of a formal agreement for contract of service with the Respondent.
In conclusion, that the judgement of the trial court is against the weight of evidence adduced and also Exhibits 1, 2, 3 and 4. Counsel therefore urged us to of law the appeal in the circumstance and set aside the Judgement of the trial court appealed against.
In response to the said two issues the learned Respondent’s counsel in summary re-iterated that the plaintiff had proved her claim and was therefore rightly entitled to judgement. In other words that the plaintiff led unchallenged and credible evidence in proof of the defendant’s indebtedness. Furthermore and commenting on the Defendant’s evidence, the counsel submitted some as ambiguous, not credible and also lacked probative value. That there was evidence that the bills were incurred by the defendant’s guests, and on the defendant’s instructions.
Counsel further emphasized the established fact that all the defendant’s witnesses assumed duties in 2007 after the events leading to the defendant’s indebtedness to the plaintiff had occurred. That PW2 who was aware of the defendant’s indebtedness as of the time the debt was incurred admitted liability to the sum claimed by the plaintiff. The learned counsel on the totality urged in favour of dismissal of the appeal while the judgement of the lower court should be affirmed.
The totality of the appellants’ issues 2 and 3 are purely evidential in nature. As a pre-requisite however, it would be pertinent to restate the following salient established facts which are not in dispute:
1) That the plaintiff/respondent is a limited liability company registered in accordance with the provision of CAMA, and engages in Hotel Hospitality business of running a Hotel.
2) That the transactions between the parties are usually on credit basis and sometime some money deposit is made by the defendant/appellant.
3) That sometimes reservations are made through phone calls, and sending of the guests straight to the hotel through officials of the Protocol Department.
From the undisputed facts gleaned from the entire case of hand, the grouse as revealed on the issues of hand and which calls for the determination is whether the plaintiff /Respondent  had infact proved its case against the defendant/appellant and hence entitled to the claims in its statement of claim as found by the learned trial judge? After having evaluated the evidence adduced by both parties, the trial court arrived at the following deductions at pages 138 and 139 of the record of appeal wherein it said:-
“from these pieces of evidence adduced by PW1, PW2 on one side and DW1 and DW2 on the other side, if placed on the imaginary scale of justice, it will weigh heavily in favour of the plaintiff. I therefore have no hesitation in holding that the plaintiff has proved its claim on the preponderance of evidence. The defendant in my humble view adduced no iota of evidence in rebuttal of those adduced by the plaintiff through its witnesses and documents tendered i.e. exhibits  1-  4 … since the defendant has benefit (sic) from the services rendered by the plaintiff to it, I hold that it is wrong for the defendant, at this stage to abdicate ifs own duty or responsibility in the transaction merely because if is a new 1overnment that is in place. I must stress here that the act of governance is a continuous Process, whatever obligation or responsibility/liability incurred by an outgoing government; it is the duty of the incoming government to honour same.
It is morally wrong for a Person or institution that has benefited from an agreement to try to void the said agreement having found that the plaintiff has proved its claim, I enter judgment in favour of the plaintiff… ”
On the one hand, from the evidence of the witnesses, especially that of PW2, the witness did testify that Mr. Taple’s anniversary was unofficial and therefore private. However and despite its nature that the Government still agreed to offset the balance as its own support and hence the making of Exhibit I.
On the other hand and on this issue, DW1 and DW2 testified that it is not the responsibility of the defendant/appellant to sponsor the social event of any of its top official and therefore signifies that Robert Taple was to pay his bills from his own pocket. Under cross examination however, the said witness DWZ’s testimony served a rider to the evidence in chief which was contraverted. This is where the same witness confirmed the Government’s sponsorship of individuals and private persons to Holy Pilgrimage and which ore private in nature. The witness also agreed under cross-examination that sponsorship of individual’s function is of the discretion of Government who can decide to sponsor any individual’s function. In otherwords, it is the Government or its authorized officers who have the final say whether to sponsor an individual or corporate function. Contrary to the submission by the learned appellant’s counsel therefore, there was no contradiction between the evidence of PW2 and that of the defendant/appellant’s witnesses. It can solely be concluded so to say that the evidence of the plaintiff / Respondent’s witnesses were not challenged in any material particularly by the defendant/appellant or of all. Rother the evidence are in total agreement on the discretion exercisable by the government.
The law is trite and very explicit on the evidential value of on unchallenged evidence which the court is enjoined to always accept as established. The court in otherwords is bound by the unchallenged evidence of plaintiff /Respondent no matter how minimal. The following cases of TANAREWA (NIG.) LTD. V ARZAI (2005) 5 NWLR (Pt 919) P. 539 at 634, DODO V SALANKE (2006) 9 NWLR (Pt. 986) P. 447 at 472 and GEGE V. NANDE (2006) 10 NWLR (Pt. 988) P. 256 at 290 are all relevant in support.
Furthermore, the testimony of the plaintiff’s PW1, was substantially in line with paragraphs’ 3, 4, 5 and 6 of the Statement of claim as to how the debt arose and this was corroborated by Exhibits 3,4,5 and 6. PW1 also led evidence in supp ort of paragraphs 7 – 10 of the Statement of claim as to the efforts, the plaintiff /Respondent made to recover the indebtedness from the defendant/appellant.
At page 94 of the record of appeal for instance, PW1 in his testimony had this to say:
‘We still receive guests from the defendants today but we are being cautious, we do demand for payment within the shortest possible time and sometimes we collect cash. I can see Exhibits 1 and 2 the outstanding indebtedness of the defendant to the plaintiff on these documents is N5,21 8,029. 50k”.
Also in his testimony, PW2 who was the Director of Protocol from the period 2001- 2007 of the time the Defendant’s indebtedness to the plaintiff arose had this to say at page 97 of the record.
“The Crest Hotel was one of the Hotels we used to patronize during my tenure of office. We sometimes made reservations or sent guests to the Hotel. It depends on the urgency of the event or the guest. If it was that we had time we wrote letters asking for reservations for accommodation for the period required. When there was no time we made phone calls or send a staff to go and make necessary reservation”.
Furthermore and on the question of the transaction and the defendant/appellant’s indebtedness to the plaintiff /Respondent, the said witness PW2 said thus at Page 98:
‘Exhibits 1 -2 were received and signed by my office. The fatal on the bill outstanding is N5,218,029.50k. there was no dispute about Exhibits 1 and 2 before and after it was sent to my office. No irregularity on the bills. Exhibits I and 2 as I can see on their faces. ”
Under cross examination of the said witness by the defendant/appellant at the some page 98, this was what PW2 had to say on his testimony:
“I do get authorization from the Governor or Permanent Secretary before I make any reservations.
Authorizations are mostly verbally. The signatory to Exhibits 1 and 2 was my P.A. in Government House, Mr. Nankpak Domkaf. I was presented with the bill before the P.A. signed. Mr. Taples marriage anniversary. The bill thereof was part of the Governments support to the celebration. The celebration was part of official function because the Government paid part of the events.
The Government decided to Pay part of the balance as ifs contribution to the occasion. This is part of the Bill that we forwarded to the Permanent Secretary for the Governors approval”.
It is very intriguing to note that the witness PW2 was not denied by the defendant/appellant that he was the Director of Protocol for the period when the indebtedness arose. It is also relevant to restate and as rightly submitted by the learned Respondent’s counsel that the defendant’s cross-examination of PW2 at page 98 of the record (supra) did not discredit or impeach the testimony or credibility of PW2. Rother and from all indication, the said cross-examination corroborated and gave credence to the evidence in chief as to the circumstance that led to the plaintiff /Respondent s rendering the services to the defendant/appellant. It also confirmed the fact that Exhibits 1 and 2 were sent and received by the defendant/appellant and that the indebtedness was incurred by the defendant as alleged.
With reference also to the cross-examination of PW1 of Page 95 of the record, some is in line and corroborated by PW7, and was not impeached by the defendant/appellant.
On the port of the defendant/appellant, it’s pleadings and Paragraphs 4-8 of the Statement of defence merely made general traverse on the averments in the plaintiff’s/Respondent’s statement of claim and without pleading specifically denying in defense of the plaintiff’s averments. Of the three witnesses who testified f or the defence, DW1 was the Director of Protocol and whose testimony at page 103 was in congruent with that of PW2 who was his boss. The witness DW1’s evidence was in fine with PW2 wherein he said thus of page 103 of the record:
“my schedule of duties as Director of Protocol I am in charge of protocol matters in the State which includes arranging activities to be attended by the Governor.
Reception of guest and visitors into the State…I know the plaintiff in this case”.
The witness under cross examination of pages 104-105 of the record admitted working under PW2 who was of the material time of incident the Director of Protocol. At page 109 of the record, the witness DW2 said:
“it is the Prerogative of government to sponsor individuals on either pilgrimages or functions…the Government decision is final on the issue of sponsorship of individuals or organization. ”
From the evidence available it is on admitted fact that the Governor has prerogative discretion in deciding the extent of sponsorship of activities by the Government. From all deductions, I hold the firm view therefore that the learned trial Chief trudge cannot be faulted in his conclusion arrived at page 138 of the record on the judgement as earlier reproduced in the course of this judgement supra.
As rightly submitted and argued by the learned Respondent’s counsel, the appellant, throughout its four grounds of appeal filed, did not specifically and unequivocally challenge the said positive findings of the lower court. The law is very sacrosanct on principle that where a party does not appeal against the findings of a court, it is deemed satisfied and cannot therefore seek to impeach such findings. The appellant cannot now be allowed the leverage of anchor on that which has no foundation. This court in the decisions of ANSA V NTUK (2009) 9 NWLR (Pt 1147) 557 and Nwuke V U.B.N. Plc (2009) 10 NWLR (Pt 1148) 1 is very explicit. Specifically at page 26 of the latter authority it was held and said:
“if a finding or decision of a trial court whether on an issue of fact or law is not challenged in an appeal to the Court of Appeal, such a finding or decision rightly or wrongly stands and must not be disturbed”.
While DW 1 testified that he was not sure of having seen exhibit 2, DW2 at page 108 of the record however testified thus:
“I can see exhibits 1, 2 & 3, I have seen the exhibit 1. I received the document. I also received exhibit 2”.
DW2’s evidence as restated earlier corroborated that of PW2 on the documents Exhibits 1 and 2. On the authority of the case of FAYEMI V. ONI (2009) 7 NWLR (Pt 1140) 223 this court held that where the evidence of a witness supports the case of the opposition, the court is entitled to rely on it.
The learned appellant’s counsel has impressed upon us to invoke the provision of Section 15 of the Court of Appeal Act and submitted that where a court of trial fails to evaluate the evidence and makes definite findings of fact which are not supported by such evidence, it would amount to a perverse judgement which counsel restated must not be allowed to stand. In the circumstance, the court is therefore called upon to evaluate the evidence and interfere with the findings of the trial court.
With reference to the findings of the trial court at Page 139 reproduced earlier same I hold cannot, be faulted as wrongly submitted by the appellant’s counsel. The judgement in other words is not and cannot be perverse hence the authority of the case of LAGGA V SARHUNA (2008) 6-7 SC (Pt 1) P101 at 142 is not applicable. In that case their Lordship of the apex court held and said:
“A perverse finding is one which ignores the facts or evidence led before the court and when considered as a whole amounts to a miscarriage of justice. See ODIBA V AZEGE (1995) 7SC (Pt 1) 79, (1995) 9 NWR (Pt 566) 370, EDOHO V STATE (2004) 5 NWLR (Pt 865) 17.
A finding is perverse if it is not borne out of evidence before the court. A Perverse finding is a finding which is not only against the weight of evidence but is altogether against the evidence itself. It is a finding which no reasonable tribunal should have arrived at in the light of the evidence before it”.
The learned appellant’s counsel had relied heavily thereupon the foregoing authority and submitted the erroneous findings by the learned trial judge at page 139 of the record wherein it held that the appellant took benefit of the services rendered by the respondent.
From the gamut of evidence adduced on the record and testified before the trial court, it is as rightly submitted by the learned Respondent’s counsel that there was o justifiable basis for the trial court to have arrived at the findings of benefit on the appellant as it did. This is because there was an ample evidence led by the witnesses on the record which has well been expounded in the course of this Judgement.
In other words and even of the risk of repeating myself, the evidence by PW1 and corroborated by PW2 is overwhelming and confirming that the defendant/appellant took advantage of the facility. Exhibits 1- 3 have further re-affirmed the evidence to the effect that the plaintiff/Respondent rendered services to the appellant. The defence of the appellant surprisingly hinged on policy decision which only became operative in 2007.
It is pertinent to highlight that paragraph 10 of the Plaintiff /Respondents pleading of pages 18 and 19 of the record averred that the service of indebtedness arising there from was incurred in 2006. Specifically, the periods of July-September 2006 and October 2006. The defendant’s witnesses in further reference were also very clear and explicit in their evidence relating the ongoing existing policy wherein rendering of service is at the discretion of the Government.
The defendant /appellant having taken benefit of the service rendered by the plaintiff/Respondent, they cannot now be heard to retract there from the contract. It is too late in the day to try and hold in Place a fallen fence which foundation has crumbled. The learned trial Chief Judge in my humble view did arrive at the correct decision and I have no reason to upset some. The said issues 2 and 3 taken together are in the circumstance resolved against the appellant.
On the totality of the appeal herein I hold that it is devoid of any merit and I hereby dismiss same. The judgement of the trial High Court Plateau delivered on the 22nd July, 2009 is affirmed.
I make no order as to costs but that each party is to bear its own costs of the appeal.
Appeal is dismissed and no order is made as to costs.

JUMMAI HANNATU SANKEY, J.C.A.: I have had the privilege of reading in draft the Judgement just delivered by my learned brother, Ogunbiyi, JCA in this Appeal. I agree with him that there is no merit in the Appeal and it ought to be dismissed. I accordingly dismiss the Appeal. I abide by the order of costs made in the said Judgment.

PHILOMENA MBUA EKPE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother Clara Bata Ogunbiyi, JCA. I agree with the reasoning and conclusions therein. I too hold that this appeal is devoid of merit and I hereby dismiss same.
The judgment of the trial Court of Plateau State delivered on the 22nd day of July, 2009 is affirmed and I abide by his Lordship’s order as to cost.
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Appearances

E. D. PWAJOK ESQ. with G.D. FWANYON EWQ., R.J. DAKOK ESQ., J.D.
LONGDEN ESQ. and R.K. SHASE’ET ESQ.For Appellant

AND

OKEY AKOBUNDU ESQ.For Respondent