GOV OF OYO STATE & ORS v. REGD TRUSTEES OF BOYS SCOUT OF NIGERIA (2020)

GOV OF OYO STATE & ORS v. REGD TRUSTEES OF BOYS SCOUT OF NIGERIA

(2020)LCN/14297(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, June 26, 2020

CA/IB/128/2014

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

THE GOVERNOR OF OYO STATE 2. THE ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE OF OYO STATE 3. THE COMMISSIONER FOR LANDS, HOUSING AND SURVEY, OYO STATE APPELANT(S)

And

THE REGISTERED TRUSTEES OF BOYS SCOUT OF NIGERIA RESPONDENT(S)

RATIO

WHETHER OR NOT UNCONTROVERTED FACTS IN AN AFFIDAVIT ARE DEEMED ADMITTED

I begin by pointing out that, generally, in law, unchallenged or uncontroverted facts in an affidavit are deemed admitted, and the Court may act on same to determine the issue in controversy. However, it is not the law that, the Court must accept and act on uncontroverted facts in an affidavit, hook, line and sinker. The Court has a duty in the exercise of its judicial function to consider the credibility of such uncontroverted facts in view of the controversy between the parties. In other words, the Court has the duty to consider and evaluate such evidence so as to ensure its credibility, veracity or truthfulness in the light of the circumstances of the case. Thus, even where the depositions in an affidavit are not challenged, if they are not credible, there would be no judicious basis for the Court to rely on it to grant a relief sought. See Okoye v. Centre Point Merchant Bank Ltd (2008) 15 NWLR (pt.1110) 335 at 362 per Tobi, JSC; Edet v. Chief of Air Staff (1994) 2 NWLR (pt.324) 41 at 63 – 64 and Ogoejeofo v. Ogoejeofo (2006) LPELR – 2308 (SC). In Ahmed & Ors v. CBN (2015) All FWLR (pt.803) 1807; Peter-Odili, JSC said:
“The applicants’ copious supporting affidavit which had been quoted verbatim earlier was not countered by the Respondent by affidavit ….. the view which I agree with is that whether or not there was counter affidavit, this Court is still duty bound to evaluate the contents of the only deposition available as in the case at hand. This responsibility is to ascertain the veracity or authenticity of the facts alleged therein.” PER TSAMMANI, J.C.A.

THE FUNDAMENTAL ESSENCE OF JURISDICTION

It should be noted that jurisdiction has been held to be the foundation upon which any adjudication can be built or predicated. Jurisdiction is the blood upon which every judicial proceeding thrives, so drained of jurisdiction no suit, action or proceeding can survive. Jurisdiction has been described as the threshold and livewire that determines the authority of a Court of law or other Tribunal to entertain a suit before it. Without jurisdiction, no Court will have the power or authority to hear and determine any cause or matter brought to it for adjudication. See Ehirim v. I.S.I.F.C. (2008) 15 NWLR (pt.1111) 443 at 482 paragraphs D – E, Registered Trustees of Importers Association of Nigeria & Ors v. Dr. Emmanuel Okereke (OON); A.G. Kwara State & Anor v. Adeyemo & Ors (2017) NWLR (pt.1546) 210 and Alhaji Muhammadu Maigari Dingyadi & Anor v. Independent National Electoral Commission & Ors (2010) LPELR – 40142 (SC). Thus in Tiza & Anor v. Begha (2005) LPELR – 3251 (SC), Musdapher, JSC (as he then was) held that:
“It is now settled law that the jurisdiction of a Court to adjudicate on a matter is a threshold issue. Consequently, without the necessary jurisdiction, a Court cannot make any valid order….” PER TSAMMANI, J.C.A.

WHETHER OR NOT REGISTERED SOCIETIES AND ASSOCIATIONS CAN SUE AND BE SUED IN THEIR REGISTERED NAMES

The position of the law is that, in the case of Registered Societies and Associations, they can sue and be sued in either their registered names or Registered Trustees of the Society or Association. In other words, the capacity of such Associations, to sue and be sued cannot be given by the mere recognition or acceptance of its existence; only the law can confer that attribute or capacity. An association such as the Respondent is not a corporation but is generally regarded as a quasi-corporation. Such quasi-corporations may be vested with power to sue and be sued in its name. See Carlen (Nig) Ltd v. University of Jos & Anor (1994) 1 NWLR (pt. 323) 631; Registered Trustees of the Airline Operators of Nig. V. NAMA (2014) LPELR – 22372 (SC); Onyuike v. The People of Lagos State & Ors (2013) LPELR – 24809 (CA); Reptico S. A. Geneva v. Afribank (Nig) Plc (2013) LPELR – 20662 (SC) and AG; Federation v. ANPP &Ors (2003) LPELR 630 (SC). PER TSAMMANI, J.C.A.

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Oyo State High Court of Justice delivered by E. Esan, J on the 24th day of June, 2013 in Suit No. I/1085/2012.

By a Writ of Summons and Statement of Claim both dated and filed on the 09/11/2012, the Respondent as Claimant in the Court below, sought the following reliefs:
(i) Declaration that the purported revocation of the title and interest of the Claimant in and over all that piece or parcel of land situate, lying and being at Boys Scout Association Camp Site, Molete, Ibadan measuring an area approximately 12.21 acres which is more particularly described and delineated in the Deed of Lease registered as No. 36 at page 36 in Volume 1352 of the Lands Registry office at Ibadan issued and published by the 3rd defendant under and by virtue of the power conferred on the 1st defendant was arbitrary, illegal, null and void and not in compliance with the provisions of the Land Use Act and the Constitution of Federal Republic of Nigeria.
(ii) Declaration that the purported revocation of the title and interest of the Claimant under and by virtue

of an earlier grant by predecessor of the 1st defendant for overriding public interest by the 1st defendant through the publication of the 3rd defendant on the premise of overriding public interest is contradictory, self defeating, illegal, null and void.
(iii) Declaration that the consent judgment delivered in Suit No. I/771/93 is binding and subsisting against the defendants.
(iv) An Order setting aside the revocation notice published by the 3rd defendant revoking the Claimant’s title and interest over the piece or parcel of land known and described as Boys Scout Association Camp Site, Molete, Ibadan and as comprised in Deed of Lease registered as No.36 at page 36 in Volume 1352 of the Lands Registry Office at Ibadan.
(v) An Order of perpetual injunction restraining the defendants by themselves, their servants, agents, privies, government agency and anybody whatsoever claiming through or under their authority from entering, dealing or alienating any part or portion of the said piece or parcel of land or the entire parcel of land measuring 12.21 acres for whatever purpose or reason or from committing any act of trespass on the said piece

or parcel of land known and referred to as the Boys Scout Association Camp Site, Molete, Ibadan land.

However, by a Motion on Notice dated the 16/01/2013 and filed on the 17/01/2013, the Appellants who were Defendants sought the following reliefs:
1. AN ORDER granting the Defendants extension of time within which to file a Memorandum of Conditional Appearance to this suit.
2. AN ORDER deeming the Memorandum of Conditional Appearance already filed and served along with this application as having been properly filed and served.
3. AN ORDER setting aside the Writ of Summons and all other originating processes filed in this matter by Obafunso Ogunkeye Esq., and the law firm of Ogunkeye & Ogunkeye for being incompetent and by reason of which the Honourable Court lacks jurisdiction to adjudicate or make any enforceable order thereon on the following grounds:-
(a) Obafunso Ogunkeye Esq., is the only witness in this suit and also doubles as the Legal Practitioner who signed the Writ of Summons, the Statement of Claim, the Statement on Oath and other originating processes in this suit.
(b) The Writ of Summons has not been properly issued.

(c) The Writ of Summons issued by the Claimant prescribed an eight days period within which the Defendants are to enter an appearance contrary to the provisions of the Rules.
(d) The Writ failed to disclose the address of any of the Defendants.
(e) Necessary particulars regarding the address of the Claimant was not disclosed.
(f) Essentially, the Writ of Summons utilized by the Claimant in originating this action is the old Writ of Summons under the High Court of Oyo State (Civil Procedure) Rules, 1988 which has been repealed by Oyo State High Court (Civil Procedure) Rules Law No.2 of 2010. There was therefore no valid writ.
(g) The Defendants intend to subpoena W.O. Ogunkeye (Mrs.) who purportedly signed a letter dated 19th November, 2012 as one of the Defendants witnesses at the trial of the substantive suit.
(h) The action is incompetent and without the necessary authorization.
(i) There are no proper parties before the Court as the action has been initiated in a name for which there is no legal basis.

Further to the above or in addition to it, an order restraining Obafunso Ogunkeye Esq., and/or any other

lawyer from the firm of Ogunkeye & Ogunkeye of No. 2 Azeez Aina Street, Ring Road, Ibadan from further representing the Claimant as counsel in this suit.

The Motion was supported by an affidavit of 10 paragraphs and a Written Address. In opposition to the Motion, the Claimant/Respondent filed a Counter Affidavit of 19 paragraphs and a Written Address. The Written Addresses were adopted and in a considered Ruling delivered on the 24/6/2013, the learned trial Judge granted reliefs (i) and (ii) on the Motion paper. However, reliefs (iii) and (iv) were refused and accordingly dismissed. Unhappy with that part of the decision of the trial Court dismissing reliefs (iii) and (iv), the Defendants/Appellants have filed this appeal.

The Notice of Appeal consisting of nine (9) Grounds of Appeal was dated and filed on the 09/9/2013. Upon transmission of the record of appeal, the parties filed and exchanged Briefs of Arguments. The Appellants’ Brief of Arguments settled by Otunba Olayinka Bolanle, was filed on the 18/4/18. Therein, four (4) issues were formulated for the determination of this Court as follows:
(1) Was the learned trial Judge right

in her refusal to restrain Obafunso Ogunkeye Esq. and the law firm of Ogunkeye & Ogunkeye from continuing with their representation of the case for the Claimant/Respondent having regard to the provisions of Rule 20(1), (2) and (3) of the Rules of Professional Conduct for Legal Practitioners i.e. Section 26 of 2007?. [Ground 2].
(2) Was the learned trial Judge right in ascribing the onus of proof of non-incorporation of “Registered Trustees of the Boys Scout of Nigeria” upon the Defendants/Appellants?. [Grounds 3 and 6].
(3) Whether the Court below has jurisdiction to adjudicate over this suit when the action had been commenced otherwise than by the name and manner permitted by an extant statute?. [Grounds 1 and 4].
(4) Whether the learned trial Judge correctly reviewed the submissions on the issue of want of authorization to sue on the part of the Claimant when he left uncommented upon, over 14 cases from the Court of Appeal, Supreme Court and published works brought to the Court’s attention?

The Respondent’s Brief of Arguments was filed on the 12/11/18. For the Respondent, only two (2) issues were distilled for

the determination of this Court as follows:
1. Whether the learned trial Judge erred in law by assuming jurisdiction and thereby occasioned a miscarriage of justice.
2. Whether the trial Court reviewed the submissions of counsel to the Appellants and properly evaluated the evidence before it in its Ruling.

Upon being served the Respondent’s Brief of Arguments, the Appellants filed an Appellants’ Reply Brief. It was filed on the 22/5/2020 but deemed filed on the 28/5/2020.

I have carefully reflected on the issues formulated by the parties. It is apparent that the Respondent did not indicate from which of the Grounds of Appeal the issues he formulated were distilled as is the practice in this Court. In that respect, I shall determine this appeal on the issues formulated by the Appellants. In doing that, I shall consider issues 2 and 3 together while issues 1 and 4 shall each be determined separately. I shall begin with issue one (1).

On issue one (1), learned counsel for the Appellant began by contending that, from an examination of the processes filed by the Respondent as the Claimant in the trial Court, that all the

processes were endorsed by Obafunso Ogunkeye Esq. That, as argued before the trial Court, those processes were not competent as they breached Rule 20(1), (2), (3) and (4) of the Rules of Professional Conduct. That, the purpose of the Rules is to not only create a detachment between a client and a lawyer in the prosecution of a case in Court, but to ensure also that there is a clear cut distinction. Furthermore, that a lawyer is therefore not permitted to argue the credibility of his own testimony. It was then submitted that Rule 20(3) provide in mandatory terms for a lawyer who knows prior to the trial that he would be a necessary witness, to withdraw from conducting the trial or allowing his firm to conduct the trial. That, the only exception is where his evidence will relate to “merely formal matter” but that in the instant case, Obafunso Ogunkeye is the only witness for the Claimant/Respondent in this suit; and his evidence has nothing to do with “a mere formal matter”. That his evidence is the fulcrum around which the entire case of the Claimant/Respondent revolves. The cases of Anyika Lagos Nig. Ltd v. Uzor (2006) 6 S.C.169 and

Elabanjo v. Tijani (1986) 2 NSCC 1367 were cited in support.

In response, learned counsel for the Respondent contended that, the argument of the Appellant that the Writ of Summons is invalid and a nullity because Obafunso Ogunkeye, a legal practitioner who signed it, was billed to appear as a witness in the matter and therefore offends Rule 20 of the Rules of Professional Conduct for Legal Practitioners, 2007, is unfounded in law and therefore erroneous. The case of Kim v. Gov. of Plateau State &Ors (2016) LPELR – 40793 (CA) was thus cited to submit that, there are only two categories of persons allowed to sign a Writ of Summons, to wit: the Claimant or his legal practitioner. That Obafunso Ogunkeye acted in his capacity as a legal practitioner when he signed the Writ of Summons. Furthermore, that the fact that Obafunso Ogunkeye doubled as a witness is immaterial to the validity of the Writ of Summons.

Learned Counsel for the Respondent went on to submit that, the argument of the Appellant that Obafunso Ogunkeye Esq and/or any other lawyer in the Firm of Ogunkeye & Ogunkeye ought to have been restrained from further representing the

Respondent herein, is a misinterpretation of Rule 20 of the Rules of Professional Conduct for Legal Practitioners in view of the provision of Rule 20(2)(d) of the said Rules of Professional Conduct (supra). That in the instant case, Obafunso Ogunkeye and the Firm of Ogunkeye & Ogunkeye have an unusual expertise in handling cases for the Claimant/Respondent which was acquired over several years. Furthermore, that Obafunso Ogunkeye is a long standing member of Boys Scout Association being the Commissioner (Legal Duties) at the Headquarters and the Deputy President of the Oyo State Council. That, those facts were captured in paragraphs 5, 6, 7, 8 and 9 of the Counter-Affidavit in opposition to the Appellants’ Motion.

On that note, learned counsel for the Respondent went on to submit that the Firm of Ogunkeye & Ogunkeye and lawyers in that Firm, fall under the exception stipulated in Rule 20 of the Rules of Professional Conduct for Legal Practitioners. Our attention was then drawn to the fact that, the depositions in paragraphs 5, 6, 7, 8 and 9 of the Respondent’s Counter-Affidavit were not controverted by the Appellants. The case of

Okike v. L.P.D.C. (2005) 15 NWLR (pt.949) 7 was then cited to submit that, since those depositions were not controverted, we should accept and act on same as the truth. We were accordingly urged to hold that the learned trial Judge was right in refusing the Appellants’ application to set aside the Writ of Summons on that ground.

Now, to resolve the issue, the learned trial Judge referred to the provisions of Rule 20(1), (2) and (3) of the Rules of Professional Conduct for Legal Practitioners (supra), to hold at page 145 line 18 – 146 line 17 of the Record of Appeal as follows:
“I will now briefly look into the Law. By Rule 20(1), (2)(a)(b), 3 and 4 of the Rules of Professional Conduct for Legal Practitioners, 2007 a lawyer is not permitted to act as counsel and witness for his client at the same time. But Rule 20(2)(d) of the said Rules is an exception to this. Rule 20(2)(d) provides that a lawyer may undertake an employment on behalf of a client and he may testify for the client if the testimony to be given relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client or as to any

matter if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as lawyer in the particular case.
The Claimants averments in the Counter Affidavit already highlighted above to the effect that due to the position Obafunso Ogunkeye holds in the Association if he is not allowed to act as counsel and testify in the instant case, it will work substantial hardship on the Association, remain uncontroverted by the defendants. I am bound to accept and act on uncontroverted averments (sic) of the Claimant which in law are deemed as having been admitted by the defendants.”

I begin by pointing out that, generally, in law, unchallenged or uncontroverted facts in an affidavit are deemed admitted, and the Court may act on same to determine the issue in controversy. However, it is not the law that, the Court must accept and act on uncontroverted facts in an affidavit, hook, line and sinker. The Court has a duty in the exercise of its judicial function to consider the credibility of such uncontroverted facts in view of the controversy between the parties. In other words, the Court has the duty to

consider and evaluate such evidence so as to ensure its credibility, veracity or truthfulness in the light of the circumstances of the case. Thus, even where the depositions in an affidavit are not challenged, if they are not credible, there would be no judicious basis for the Court to rely on it to grant a relief sought. See Okoye v. Centre Point Merchant Bank Ltd (2008) 15 NWLR (pt.1110) 335 at 362 per Tobi, JSC; Edet v. Chief of Air Staff (1994) 2 NWLR (pt.324) 41 at 63 – 64 and Ogoejeofo v. Ogoejeofo (2006) LPELR – 2308 (SC). In Ahmed & Ors v. CBN (2015) All FWLR (pt.803) 1807; Peter-Odili, JSC said:
“The applicants’ copious supporting affidavit which had been quoted verbatim earlier was not countered by the Respondent by affidavit ….. the view which I agree with is that whether or not there was counter affidavit, this Court is still duty bound to evaluate the contents of the only deposition available as in the case at hand. This responsibility is to ascertain the veracity or authenticity of the facts alleged therein.”

In the instant case, I find that the conclusion of the learned trial Judge on paragraphs

5, 6, 7, 8 and 9 of the Claimant/Respondent’s counter affidavit does not satisfy the requirement of the exception stipulated in Rule 20. It is my view that the consideration given to paragraphs 5, 6, 7, 8 and 9 of the Claimant’s/Respondent’s Counter-Affidavit to determine this issue, on the ground that the depositions therein were not controverted is misconceived. To properly appreciate the issue, I find it necessary to reproduce the provisions of Rule 20(1), (2), (3) and (4) of the Rules of Professional conduct for Legal Practitioners, 2007. It stipulates as follows:
20.(1) Subject to Sub-rule (2) of this rule, a lawyer shall not accept to act in any contemplated or pending litigation if he knows or ought reasonably to know that he or a lawyer in his firm may be called or ought to be called as a witness.
(2) A lawyer may undertake an employment on behalf of a client and he or a lawyer in his firm may testify for the client –
(a) if the testimony will relate solely to an uncounted matter;
(b) if the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will

be offered in opposition to the testimony;
(c) if the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client; or
(d) as to any matter if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as lawyer in the particular case.
(3) When a lawyer knows, prior to trial, that he would be a necessary witness except as to merely formal matter, neither he nor his firm may conduct the trial.
(5) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, but he or a lawyer in his firm may testify in the circumstances enumerated in sub-rule (2) of this rule.”
It is apparent to me that Sub-rules (1) and (3) of Rule 20 to the Rules of Professional Conduct for Legal Practitioners copiously cited above, that a lawyer is not permitted to accept to act for a

client in a contemplated or pending litigation, if he reasonably has reason to know that he or a lawyer in his firm would be a witness at the trial. It appears that Sub-rule (3) is a mere duplication of Rule 20(2)(b). However, the operation of that Rule is subject to the conditions stipulated in Rule 20(2)(a) – (d). It therefore means that such prohibition is not absolute. Accordingly, a lawyer may accept to act for a client in a case under any of the exceptions stipulated in paragraphs (a) – (d) of Sub-rule (2) to Rule 20 of the Rules.
In the instant case, it was deposed by the Claimant/Respondent that Obafunso Ogunkeye Esq of counsel is a member of the Boys Scouts Association and the Headquarters Commissioner (Legal Duties). That he is also the Deputy President of the Oyo State Council of the Association and has been functioning in such capacity for over 20 years. It is apparent therefore that the said Obafunso Ogunkeye has been an integral part of the Management of the Boys Scouts Association of Nigeria both at the National and Oyo State levels. In such capacity, he has been conducting the Legal affairs of the Association. It is therefore

safe to say that, he is conversant with the legal issues affecting the Association. The said learned counsel knows all the facts of the case in his capacity as a management team of the Boys Scouts Association of Nigeria, and as the Commissioner in charge of Legal matters at the Headquarters of the Association, he must have participated in taking the decision to institute this action. It is by virtue of that position that he has been listed as the only witness for the Claimants/Respondents.
The Respondents however contend that, in view of those facts, it will work substantial hardship on them (Respondents), if the said Obafunso Ogunkeye Esq., of counsel is denied his right of wearing two hats in this case; as both a counsel and a witness. I think this is the very scenario Rule 20(1) and (3) of the Rules of Professional Conduct for Legal Practitioners seek to prohibit. It is not in doubt that the position of Obafunso Ogunkeye Esq., as the only witness for the Claimant/Respondent goes beyond testifying on matters of formality or uncounted matter. He will certainly not be testifying on the value of legal services rendered, as his Written Statement on Oath

accompanying the Statement of Claim would indicate. He will certainly be testifying on the substance of the Claimant’s claim, and would no doubt be exposed to excruciating cross-examination. In that position, he may be forced to say things that are detrimental to the client’s case thereby defeating the requirements of confidentiality and trust between lawyer and client. It is for the above reasons that I hold the view that, the learned trial Judge should have resolved those facts which were not controverted by the Defendants/Appellants in favour of the Appellants. The learned trial Judge therefore erred in resolving those facts in favour of the Respondents, as they are not consistent with the exceptions recognized by Rule 20(2)(d) of the Rules (supra).
The effect of my resolution above is that, Obafunso Ogunkeye Esq of counsel and other lawyers in his Firm are disqualified from conducting the trial of this suit. The proper thing for him was (is) to disqualify himself and other counsel in the Firm of Ogunkeye & Ogunkeye from the conduct of the trial. A careful interpretation of the entire provision of Rule 20(1), (2), (3) and

(4) of the Rules of Professional Conduct (supra), is not to void or nullify the Writ but to disqualify counsel from participating in the conduct of the trial. In other words, a breach of the said Rule 20 cannot nullify the Writ as to deny the Court of the jurisdiction to hear and determine the action. See Okatta v. Registered Trustees of the Onitsha Sports Club (2008) 13 NWLR (pt.1105) 632; Boniface Anyika & Co. Lagos (Nig.) Ltd v. Uzor (2006) 15 NWLR (pt.1003) 560 and Elabanjo v. Tijani (1986) 5 NWLR (pt.46) 952. The act of Obafunso Ogunkeye only affects his ethical conduct and not the validity of the Writ. The proper thing for Mr. Obafunso Ogunkeye and lawyers in his Ogunkeye & Ogunkeye Chambers is to disqualify themselves from participating in the conduct of the proceedings. The Writ however remain valid. For the reasons stated above, this issue has to be resolved in favour of the Respondent.

As I stated earlier, I will consider issues 2 and 3 together. On those issues, learned counsel for the Appellant contended that, where the corporate status of a Claimant is raised or put in issue by the defence, it is the responsibility of the Claimant to produce its

certificate of incorporation. That, where a person asserts that a certificate does not exist, the onus of proof of its existence lies with the party that asserts that the certificate exists. The case of Principal, Government Secondary School, Ikachi & Ors v. Igbudu (2006) All FWLR (pt.299) 1420 at 1441 was cited in support and to further submit that the onus of proof of incorporation by the mere assertion by the Plaintiff in an affidavit that the Association is registered is not enough. That what the law expects is for such Plaintiff to produce the certificate of incorporation.

Learned Counsel for the Appellant went on to submit that, it is not the law that a Defendant who claims that a particular Association is not registered, should produce evidence to show non-registration. That the law does not require the defendant to lead evidence to establish a negative assertion. That, the attention of the learned trial Judge was drawn to the Statute that set up “the Boys Scout” and that the Statute did not create any Registered Trustee nor give it the power of “perpetual succession” but the learned trial Judge erroneously applied the

provisions of “Part C” of the Companies and Allied Matters Act, 2004. It is then submitted that, it is only where an Association, or body has been demonstrably shown to have been registered by it’s Trustees that it can take the benefit of the provisions of “Part C” of the CAMA, 2004. That in the instant case, there was no evidence of incorporation. Learned Counsel then submitted that, the finding of the learned trial Judge regarding the incorporation status of the Claimant is perverse, it not having been supported by the evidence on record. We were accordingly urged to invoke Section 167(d) of the Evidence Act, 2011 against the Respondent and to hold that, failure of the Respondent to produce documentary evidence of registration or incorporation is fatal to the case for the Respondent.

Learned Counsel for the Appellant then cited the cases of Onobruchere v. Esegine (1986) 11 NWLR (pt.19) 799 and Psychiatric Hospital Management Board v. E.O. Ejitagha (2000) 6 S.C. (pt. 11) 1 at 4 to submit that, instead of striking out the suit for the failure of the Respondent to produce evidence that it had the power to sue in its juristic

name, the learned trial Judge erroneously placed the burden of proof of non-registration on the Appellants thereby leading to a miscarriage of justice. The cases of Bank of the North v. Onyio (2002) FWLR (pt.129) 1492 and Registered Trustees of Apostolic Church v. Attorney-General Mid-Western State of Nigeria (1972) NSCC (Vol.VII) 247 were then cited to urge us to interfere with the findings and conclusion of the trial Court.

In response, learned counsel for the Respondent contended that, the Appellant argued that, the trial Court wrongly assumed jurisdiction when the suit was commenced under a name for which there is no legal basis. That the issue is therefore a matter of substantive jurisdiction. That, in determining the substantive jurisdiction of a Court, the Court will be guided by the following facts:
(a) The proper parties are before the Court;
(b) The subject matter falls within the jurisdiction of the Court;
(c) The composition of the Court as to members and qualifications;
(d) That the suit is commenced by due process of law and upon fulfillment of any conditions precedent to assumption of jurisdiction.

The cases of Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Sken Consult v. Ukey (1981) 1 SC. 6 and Ajao v. Obele (2005) 5 NWLR (pt.918) 400 at 414 – 415 paragraphs H – C were cited in support.

It was then contended that, the legal basis of the Respondent’s name is not in doubt. That, it was pleaded in paragraph 1 of the Statement of Claim that, the Respondent is an International Non-Governmental Organization which has been in existence in Nigeria since 1922, and that it is registered under the Land (Perpetual Succession) Act Cap.98 of the Laws of the Federation. That similar facts were deposed to in the Counter-Affidavit of the Respondent. That, the Appellant had deposed in paragraph 5(i) of the affidavit in support of the Motion on Notice, that there is no indication of the existence of any Registered Trustees. Learned Counsel for the Respondent then argued that, the implication is that, the Appellant asserts that there is no evidence showing that the Respondent exists. That in response, the respondent deposed in paragraph 5(iii) and (iv) of the Counter-Affidavit as follows:
“(iii). That the Boys Scout of Nigeria was duly registered as a body

corporate with perpetual succession.
(iv). That the trustees of the Claimant were registered on the 18th of July, 1942 with certificate registration No.143.”

It was then submitted that, by placing before the Court the registration particulars of the Respondent, the Respondent had effectively denied the assertions of the Appellant. That the Appellant did not deny the assertions of the Appellant. That, the Appellant did not deny the particulars supplied by the Respondent. The case ofOrisakwe & Sons Ltd & Anor v. Afribank Plc (2012) LPELR – 20094 (CA) was then cited to submit that, those facts having not been controverted, are deemed admitted.

Learned Counsel for the Respondent went on to submit that, having asserted the non-existence of the Respondent, the Appellant had the burden of proving the non-existence of the Respondent. The case of Levi v. Adikwu & Ors (2018) LPELR – 44261 (CA) was then cited to further submit that, since the evidence as to the registration of the Respondent was uncontroverted, the Court was bound to take that fact as established. The case of Ononye v. Odita (2007) LPELR – 8297 (CA) was

also cited to submit that, where a registered body in Part “C” of the Companies and Allied Matters Act (CAMA) institutes an action, such action is deemed registered on behalf of the legal entity by is registered trustees, in the corporate name. Section 596(1) of the CAMA, LFN, 2004 was cited in support. In other words, that Section 396(1) of CAMA, empowers incorporated trustees to sue and be sued in their corporate name, and there is affidavit evidence to the effect that the Respondent is registered as a body corporate. We were then urged to hold that from the uncontroverted affidavit evidence in paragraph 5(iii) and 5(iv) of the Counter-Affidavit of the Respondent, it is indisputable that “The Boys Scout of Nigeria” is a legal person having the right to sue and be sued.

On the argument of the Appellant that the trial Court wrongly placed the onus of proof on the Appellant, same having made a negative assertion, learned counsel for the Respondent contended that, it is the law that he who asserts must prove. That the principle remains the same, whether such assertion is a positive or negative one. The cases of

Alhaji Umar Abba-Tukur v. Government of Gongola State (1988) LPELR – 22 SC and Obiora Chukwuka v. Alor Nduka & Ors (2008) LPELR – 3985 (CA) were cited in support. That in the instant case, the onus was on the Appellants to present to the Court evidence in proof of the assertion that the Respondent does not exist. That, they could do that by tendering a Certified True Copy (CTC) of a Search Report conducted at the Corporate Affairs Commission which would indicate that, “No Registered Trustees of the Boys Scouts of Nigeria” exists. That in any case, since the parties did not join issues on the existence of the certificate of Registration of the Respondent, the Respondent was not legally bound to produce same.

Learned Counsel for the Respondents went on to submit that, the argument of the Appellant that there was no basis for the finding of the learned trial Judge that the Respondent was a proper party in the suit, is misconceived. That in making such finding, the learned trial Judge quoted directly from paragraphs 5, 11, 12, 13, 14 and 15 of the Respondent’s Counter-Affidavit. That in making such finding, the Court did not need to analyse any

documents, since the evidence on the status of the Respondent was before the Court, and such evidence was unchallenged. It was thus submitted that, having failed to discharge this burden, the learned trial Judge was bound to accept the uncontroverted evidence of the Respondent and act on same. We were accordingly urged to hold that, the finding of the learned trial Judge is in line with the evidence before the Court.

In reply on points of law, learned counsel for the Appellant contended that, the arguments of the Respondent did not take into consideration the fact that the Evidence Act does not place an extra burden on a person that makes a negative assertion. That, since it is the Respondent who wanted to satisfy the Court that she was fully registered, the burden was on her to proof same by the production of her certificate of Incorporation or Registration. The cases of The Incorporated Trustees of the Brotherhood of Cross and Star v. Mr. E. T. Nkereukem & Ors (2011) LPELR – 4806 (CA); Magbagbeola v. Sanni (2005) 11 NWLR (pt. 936) 239; Nduka v. Ezenwalu (2001) 6 NWLR (pt. 709) 517 and J. K. Randy v. Kwara Breweries Ltd (1986) 6 S.C.1 were cited in support.

Learned Counsel for the Appellant went on to submit that, instead of producing her Certificate of Registration, the Respondent chose to rely on a bare oral assertion of same. That, the bare ipsi dixit of the Respondent in an affidavit does not meet the requirement of proof of existence of a Certificate of Registration, as the only proof of registration the law accepts is the production of the Certificate of Registration. It was thus submitted that the case of Alhaji Umar Abba-Tukur v. Government of Gongola State (supra) cited by learned counsel for the Respondent is not applicable to the facts of this case. The cases of Ogbu v. Wokoma (2005) 7 S.C. (pt.II) 135 and Iyiola Omisore & Anor v. Ogbeni Rauf Adesoji Aregbesola (2015) 7 SCNJ 92 at 156 were further cited in support and to further submit that the Respondent did not discharge the onus of proof by failing to produce the Certificate of her registration. That in any case, it has been held in the cases ofOsakwe v. Federal College of Education (2010) 3 SCNJ 529; Central Bank of Nigeria v. Musa Zakari (2018) LPELR – 44751 (CA); Alao v. V.C, University of Ilorin (2008) 1 NWLR

(pt.1069) 421 and Adigun v. Ayinde (1993) 8 NWLR (pt.315) 534, that where there are two decisions of the Supreme Court on a particular point, this Court should follow the later one in time.

Now, the issue that culminated into this appeal, is the Ruling of the Court below, on the Defendants/Appellants’ Motion filed on the 17/1/2013, which Motion prayed the Court to set aside the Writ of Summons and all other originating processes filed therein for being incompetent and thus the Court lack the jurisdiction to adjudicate on same, on the grounds, inter alia, that:
(h) The action is incompetent and without the necessary authorization.
(i) There are no proper parties before the Court as the action has been initiated in a name for which there is no legal basis.

It should be noted that jurisdiction has been held to be the foundation upon which any adjudication can be built or predicated. Jurisdiction is the blood upon which every judicial proceeding thrives, so drained of jurisdiction no suit, action or proceeding can survive. Jurisdiction has been described as the threshold and livewire that determines the authority of a Court of law or

other Tribunal to entertain a suit before it. Without jurisdiction, no Court will have the power or authority to hear and determine any cause or matter brought to it for adjudication. See Ehirim v. I.S.I.F.C. (2008) 15 NWLR (pt.1111) 443 at 482 paragraphs D – E, Registered Trustees of Importers Association of Nigeria & Ors v. Dr. Emmanuel Okereke (OON); A.G. Kwara State & Anor v. Adeyemo & Ors (2017) NWLR (pt.1546) 210 and Alhaji Muhammadu Maigari Dingyadi & Anor v. Independent National Electoral Commission & Ors (2010) LPELR – 40142 (SC). Thus in Tiza & Anor v. Begha (2005) LPELR – 3251 (SC), Musdapher, JSC (as he then was) held that:
“It is now settled law that the jurisdiction of a Court to adjudicate on a matter is a threshold issue. Consequently, without the necessary jurisdiction, a Court cannot make any valid order….”

The jurisdiction of Courts in Nigeria, are generally donated either by the Constitution or the Statute that created it. Thus, to determine whether or not the Court has jurisdiction in a particular cause or matter the Court will look at the nature of the Claim before it,

whether or not it falls within the claim the Constitution or Statute has conferred or donated power on the Court to adjudicate upon. See NNPC & Anor v. Orhiowasele & Ors (2013) 13 NWLR (pt.1371) 2011.

Generally, in law, a Court will have the jurisdiction to hear and determine a particular cause where the following conditions are satisfied.
(a) The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
(b) The subject matter of the case which prevents the Court from exercising jurisdiction; and
(c) It is properly constituted as regards numbers and qualification of members of the bench, and no member is disqualified for one reason or another.

In the instant case, the challenge to the jurisdiction of the Court below is on the ground that, the Claimant has no capacity to institute the action in that, “The Registered Trustees of Boys Scout of Nigeria” is not a juristic person capable of suing and/or being sued. It should be noted that the “Boys Scout Association of Nigeria” is a Voluntary Association established under the Boy

Scouts Association Act. It is indicated in Section 2 of the Act that, the Boy Scouts Association was incorporated under the Charter granted on the 4th day of January, 2012. I am unable to access the Charter under which the Boy Scouts Association was incorporated. The Boy Scouts Association Act does not also stipulate the capacity under which the Association can sue and/or be sued. My research however reveals that the Boy Scouts of Nigeria was registered under the Company and Allied Matters Law in 1942. By the enactment of the Boys Scout Association of Nigeria, it would mean that the Boys Scouts of Nigeria is a creation of Statute. This is evident from the Boy Scouts Act Cap. B12, Laws of the Federation of Nigeria, 2004. However, the fact that an institution has been created by statute, does not automatically give that institution a juristic personality with the power to sue and/or be sued. This is because, there is a distinction between juristic and juridical personality.
Generally in law, a juristic personality is one that has the capacity to sue and/or be sued. Such personalities include natural and artificial persons such as corporations aggregate or

sole; that is incorporated or registered bodies or companies. Such can also be created by statute. These can be termed juridical personalities but it does not necessarily mean such persons automatically have the capacity or power to sue and/or be sued. Thus, juridical personality comes into existence where the law accepts and recognizes such existence. Juristic personality on the other hand entails the capacity of that juridical personality to sue and be sued. The capacity of suing and being sued is conferred by law. Even in case of natural persons, i.e human beings, not every person has the capacity to sue and be sued. Examples of such persons are minors and persons of unsound mind.
It would therefore be seen that juridical personality is not synonymous or equivalent to juristic personality. Thus, even where an institution acquires juridical personality, the Statute or Law creating it must confer on it the power to sue and be sued before it can be said that it has juristic personality. See Fawehinmi v. Nigerian Bar Association & Ors (1989) 2 NWLR (pt.105) 558. In that case, Obaseki, JSC explained the law as follows:
“Who is a natural

person? It is a human person who has life and blood in him or her, whether a citizen of one Sate or another given protection by law and endowed with human qualities. Who is an artificial or legal person? Usually, it is a corporation aggregate or sole. It can be created by law e.g. University of Ibadan Act, 1962, University of Lagos Act, 1967 or incorporated under the law, e.g. Companies under the Companies Act, 1968. Corporation aggregate and corporation Sole have been given adequate definitions in Halsbury’s Laws of England. Juridical personality is not equivalent to a juristic personality. Juridical personality is acquired when the law accepts and recognizes the existence of unincorporated associations. The capacity of suing and being sued is not thereby given by the mere recognition and acceptance of its existence. Thus, the acceptance and recognition by (a) The Legal Practitioners Act, 1975….; (b) Legal Education (Consolidation etc.) Act, 1976 as amended by the Legal Education Consolidation etc. Act, 1977…; The Interpretation Act, 1964… cannot be construed as the conferment on the Nigerian Bar Association of the capacity to sue. Only

the law of the land can confer that attribute or capacity and in most statutes, the capacity to sue and be sued of the authority or body they create is expressed.”
I had observed elsewhere in the course of this judgment that, the Claimant/Respondent (Boy Scouts Association) of Nigeria is a Voluntary Association created by Law, i.e. Boy Scouts Act, Cap. B12, Laws of the Federation of Nigeria, 2004. This fact was also deposed to by the Appellant in paragraph 5(h) of the Affidavit in support of their motion. The position of the law is that, in the case of Registered Societies and Associations, they can sue and be sued in either their registered names or Registered Trustees of the Society or Association. In other words, the capacity of such Associations, to sue and be sued cannot be given by the mere recognition or acceptance of its existence; only the law can confer that attribute or capacity. An association such as the Respondent is not a corporation but is generally regarded as a quasi-corporation. Such quasi-corporations may be vested with power to sue and be sued in its name. See Carlen (Nig) Ltd v. University of Jos & Anor (1994) 1 NWLR

(pt. 323) 631; Registered Trustees of the Airline Operators of Nig. V. NAMA (2014) LPELR – 22372 (SC); Onyuike v. The People of Lagos State & Ors (2013) LPELR – 24809 (CA); Reptico S. A. Geneva v. Afribank (Nig) Plc (2013) LPELR – 20662 (SC) and AG; Federation v. ANPP &Ors (2003) LPELR 630 (SC).
It therefore means that, no action can be brought by or against any party who is not either a natural person or persons unless such party has been given by statute or impliedly, the legal capacity to sue or be sued by its name; or other name by which it can sue or be sued. It also means that even where the statute or Law that created the Institution or Association has not specifically conferred on it the right to sued and/or be sued eo nomine, such right to sue or be sued can be inferred. That inference can be made by considering the relevant provisions of the statute which establishes or confers rights and duties on the association or body. The Court should also consider the relationship of that body to other persons or bodies, so that unless legal capacity is ascribed to it, other persons or bodies may suffer injustice through its

activities. See Uzoho & Ors v. National Council on Privitazation & Anor (2007) 10 NWLR (pt.1042) 320; Carlen (Nig) Ltd v. Unijos (1994) 1 NWLR (pt.323) 62; Okupe v. Federation Board of Inland Revenue (1970) 1 All N.L.R.314. This is particularly so where statute has expressly conferred on such body the right to own property and engage in other activities with other members of the public. Thus, My Lord, Karibi-Whyte, JSC (of blessed memory) in the case of Fawehinmi v. NBA &Ors (No.2) (1989) 2 NWLR (pt.105) 558 at 639 observed as follows:
“It is therefore reasonable to imply that these bodies in the discharge of their functions will exercise the rights of legal persons, and will, if the nature of the duty discharged so involved, be suable in the Court i.e. possessed juristic personality.”
Similarly, my learned brother, Omoleye, JCA in the case of Chairman, Chief Executive, National Drug Law Enforcement Agency (NDLEA) Head Quarters, Lagos & Ors v. Mr. Christain Umeh & Anor (2014) LPELR – 24373 (CA), drew inspiration from the dictum of Ogundare, JSC (of blessed memory) in the case of Carlen Nig. Ltd v. Unijos (supra)

to hold as follows:
“The power of a party including corporate bodies to sue and be sued can therefore be expressly conferred on it by the statute creating it. Also, it is clear that such power can equally be inferred from the creating or enabling statute. Hence, when as in the instant case under consideration, the question for determination is whether in the absence of express statutory provision, a body like the 1st Respondent has the status of a legal personality, the Court in determining whether to infer such legal personality status of the body must of necessity go through the task of examining meticulously the relevant statutory provisions of the statute which establishes, confers rights and imposes duties on the body. The Court should also in doing this bear in mind the relationship of the body to other persons or bodies such that unless legal personality is ascribed to it, an injustice to such other person or bodies might result.”
Now, in determining the issue, I have perused the provisions of the Boy Scouts Association Act (supra). None of the 8 Sections of the Act confers any right on the Boy Scouts Association to sue and/or be

sued eo nomine, i.e in its name. I then decided to have recourse to the Amended constitution of the Scout Association of Nigeria. By the Preamble to the said Constitution, the accredited representatives of the Association, gave to themselves that Constitution. It is stipulated in Article 1 of the Constitution (supra) that:
“The Scout Association of Nigeria is a voluntary, nonpolitical, educational movement for young people open to all without discrimination of gender, origin, race, creed or class.”
The Association is controlled and administered by various officials in the strata of command of the Association, with the Chief Scout as the overall head of the Association. It is therefore stipulated that:
“The Scout Association of Nigeria shall be administered by the council.”
Furthermore, that the Powers of the “Council” shall be exercised by the Committee. By Article III(6) of the Constitution, the Association shall depend financially on the following sources:
(a) Government Grants;
(b) The Contributions of its members;
(c) Public support;
(d) Proceeds from the Scout shop; and

(e) Other income generating ventures.
It would appear also that the Association is empowered by its Constitution to own property when it is stipulated in Article X (1), (2), (4), (5) and (6) thereof as follows:
1. The property of the Scouts Association of Nigeria shall be vested by a Deed of Trust on not less than six (6) Trustees representing each geo-political Zones of the Country.
2. The Trustees shall be known as The Registered Trustees of the Scout Association of Nigeria (hereinafter called the Trustees).
4. The Trustees shall have a common seal…
5. Such common seal shall be kept in a safe in the National Head-quarters Office under the custody of the Hon. National Secretary.
6. All documents to be executed by the Trustees be signed by at least any two of them and sealed with the common seal.
The implication of the above is that, the Boy Scouts of Nigeria having been conferred with power to acquire and hold property, also has the right to sue to protect such property. Conversely, it can be sued in respect therefore. The issue that concerns us here is, whether the Association has the right to sue in its own name.

It should be noted that, the property of the Association is vested in its Registered Trustees. In other words, the Association has the power to acquire and hold property through its Registered Trustees. The Appellant has however contended that such Registered Trustees does not exist. In the determination of the issue, the learned trial judge held at page 147 lines 10 – 15 of the Record of Appeal as follows:
“With respect to Leg 3 (h) and (i) of the application, the learned Counsel for the defendant contended that there are no proper parties before the Court as this action has been initiated in a name for which there is no legal basis. Counsel stated that there is no registered trustees of the Boys Scout Association and there is no authorization to prosecute this action.”
The learned trial Judge then concluded at page 148 line 13 – 149 line 14 of the Record of Appeal as follows:
“Now it is a notorious fact that Part “C” of the Companies and Allied Matters Act, Cap, C20 Laws of the Federation of Nigeria provides for the Registration/Incorporation of certain communities, bodies and associations under this part of

the law, the Registered or incorporated Trustees have the power to sue and be sued as Registered Trustees. They also have perpetual succession and the power to hold, acquire, transfer or assign property. The Law also allows the association to appoint a Council which shall include the trustees and it may function as it deems expedient. See Part “C”, S.590 (1) and (2) of CAMA, Cap C.20 Laws of the Federation of Nigeria. See also Sections 679, 684 and 685 thereof. By paragraphs 5 and 11 – 15 of the Counter Affidavit of the Claimants averred that the Constitution of the Boys Scouts Association provides for and regulates the activities and day to day running of the Association. That the Oyo State Scout Council has authority to represent the Claimants.
By the averments in the Counter Affidavit which remain uncontroverted, it is clear that the Registered Trustees of the Boys Scouts Association as a body recognized by Law is a proper party in this case and the Claimants Council who is a member of the Oyo State Council of the Claimant has authority to institute this action.”
I am satisfied that the analysis of the learned trial Judge

on the provisions of Part “C” of the Companies and Allied Matters Act (CAMA) is correct but the conclusion thereon is incorrect. It is not in doubt that Part X of the Constitution of the Claimant/Respondent makes provision for Registered Trustees of the Association with power to acquire and hold property. By implication, the Registered Trustee have power to transfer or assign property. That being so, Section 590 of the CAMA stipulates that:
“590.(1) where one or more trustees are appointed by any community of persons bound together by custom, religion, kinship or nationality or by anybody or association of persons established for any religious, educational, literary, scientific, social, development, cultural, sporting or charitable purpose, he or they may, if so authorized by the community, body or association (hereinafter in this PART of this Act referred to as “the association”) apply to the commission in the manner hereafter provided for registration under this PART of this Act as a corporate body.
(2) Upon being so registered by the commission, the trustee or trustees shall become a corporate body in accordance with

the provisions of Section 596 of this Part of this Act.”
Section 596(1) and (2) of the CAMA then clearly stipulates that:
“596 (1) From the date of registration, the trustee or trustees shall become a body corporate by the name described in the Certificate, and shall have perpetual succession and a common seal, and power to sue and be sued in its corporate name as such trustee or trustees and subject to Section 602 of this PART of this Act to hold and acquire, and transfer, assign or otherwise dispose of any property or interests therein belonging to, or held for the benefit of such association, in such manner and subject to such restrictions and provisions as the trustee might without incorporation, hold or acquire, transfer, assign or otherwise dispose of the same for the purposes of such community body or association of persons.
(2) The Certificate of incorporation shall vest in the body corporate all property and interests of whatever nature or tenure belonging to or held by any person in trust for such community, body or association of persons.”
It is clear therefore, that it is the fact of registration that gives the

Trustee or Trustees appointed by the Association, the power to acquire or hold, transfer, assign or otherwise dispose of property for the purpose of the Association. It is equally that registration that gives the trustee or trustees capacity to sue and be sued as such trustee or trustees of the association or body. The logical conclusion therefore is that where any trustee or trustees of an association or other body appointed by such association is not registered in accordance with the provisions of Part “C” of CAMA, it would have no legal capacity to sue and/or be sued in that name. See The Registered Trustees of the Apostolic Church, Ilesha Area Nigeria, West Africa v. Attorney-General of Mid-Western State of Nigeria & Ors (1972) 4 S.C. 154; Anyaegbunam v. Osaka &Ors (1993) 5 NWLR (pt.294) 449 and Ekweozor & Ors v. Reg. Trustees, S.A.C.N. (2014) 16 NWLR (pt.1434) 433. Thus, where the capacity of Registered Trustees is challenged, the party that sues in that name, has the burden to prove that, it has the legal capacity to so sue in that name. See Dairo & Ors v. Registered Trustees of the Anglican Diocese of Lagos (2018) 1 NWLR

(pt.1599) 62; Mother Cat Nigeria Limited v. Registered Trustees of the Full Gospel Assembly of Nigeria (2013) LPELR – 22118 (CA) and Incorporated Trustees of the Brotherhood of Cross and Star v. Nkereuwem & Ors (supra).
It therefore means that where the incorporation of the Legal Trustees of an Association is challenged, the burden is on the Plaintiff or Claimant who asserts positively their incorporation status to prove same. In other words, the onus was on the Claimants/Respondents to proof that they are indeed incorporated as the Registered Trustees of the Boy Scouts of Nigeria, and thus have the legal capacity to sue and be sued in that name. SeeReptico S.A. Geneva v. Afribank (Nig.) Plc (2013) 14 NWLR (pt.1373) 209; NNPC V. Lutin Invest. Ltd (2006) 2 NWLR (pt.965) 506; Ifedapo Community Bank Ltd. v. Eternal Order of C & S Church, Saki Branch (2001) 7 NWLR (pt.712) 508 and Union Beverages Ltd v. Pepsi Cola International Ltd (1994) 3 NWLR (pt.330) 1. The best evidence of in-corporation is the production of the certificate of incorporation. It therefore means that the Claimant/Respondent had the burden to prove the incorporation by the production

of the Certificate of Incorporation.
In the instant case, the Claimant/Respondent failed to produce the Certificate of their Registration as such trustees. The learned trial Judge therefore erred when he relied on the bare ipsi dixit of the Claimants in their affidavit to the effect that they were indeed registered. Thus in Mother Cat Nigeria Limited v. Registered Trustees of the Full Gospel Assembly, Nigeria, Nweze, JCA (as he then was) said:
“In all, the burden of proving their status as Incorporated Trustees, therefore, lies on the persons who made positive assertion about their incorporated status; Section 135 of the Evidence Act (then applicable to the proceedings)…”
In the case of Atlantic Dawn Limited & Ors v. G – Net Communication (2019) LPELR – 47772 (CA), Yahaya, JCA said:
“The duty to prove that the company is registered falls on the challenged party to prove that it is indeed an incorporated entity.”
Similarly inACB v. Emostrade (2002) 8 NWLR (pt.770) 501 at 518, it was held that:
“The legal personality of a corporate body can only be established as a matter of law,

by the production in evidence of the certificate of incorporation, admission inter partes notwithstanding…”
It was also held by the Supreme Court, per Onnoghen, JSC in the case of NNPC v. Lutin Inv. Ltd & Anor (supra) that, the only way incorporation of a company can be established in any proceeding is the production and tendering of the Certificate of its incorporation.
Having thus held, I am of the view that the learned trial Judge erred when he held at page 147 line 18 – 148 line 12 of the Record of Appeal, that:
“The defendants have alleged that there are no registered trustees of the Boys Scout Association in existence, but the Claimant in paragraph 5 (iii) of the Counter Affidavit averred (sic) that the Boys Scout Association was duly registered as a corporate body under Part “C” of the Companies and Allied Matters Act with perpetual succession and Trustees of the Claimant were registered on the 18th of July, 1942 with a Certificate of Registration No. 143.
The above averments (sic) were not denied by the defendants. The defendants who contested this, had a duty in the first place to put before

the Court sufficient materials to establish that the contrary is the case. It is an elementary principle of Law that he who asserts must prove. See S.131(1) Evidence Act, 2011. But the defendants failed to prove their assertions.”
No doubt, it was the Respondent who asserted that it was duly registered under Part “C” of the CAMA. As required by Section 596 (3) of CAMA, the Certificate of incorporation shall be evidence of its registration. The learned trial Judge therefore wrongly placed the burden on the Appellant to prove that the Respondent is not registered. The burden was on the Respondent to place before the Court the certificate of its registration. This, it failed to do. The effect is that, the action was initiated by an incompetent party. This issue is accordingly resolved in favour of the Appellants.

With the resolution of this issue in favour of the Appellant, I am of the view that it will serve no useful purpose to venture into the other issues that have been placed before us for determination. Having thus resolved, I find that the Claimant in this suit had no competence to institute this action under the name of

“The Registered Trustees of Boys Scout of Nigeria.” This appeal is hereby allowed in part. Thus, with the resolution of issues 2 and 3 in favour of the Appellant, the Ruling of the Court below in Suit No: I/1085/2012 delivered on the 24th day of June, 2013 is hereby set aside. This, Suit No. I/1085/2012 is hereby struck out.
The parties are to bear their costs.

JIMI OLUKAYODE BADA, J.C.A.: I had the advantage of reading in draft a copy of the lead Judgment of my learned brother HARUNA SIMON TSAMMANI, JCA, just delivered.

My Lord has adequately dealt with the issues in this appeal and I agree entirely with the reasons given therein as well as the conclusion that the appeal has merit.

I also allow the appeal and I abide by the consequential order made in the said lead Judgment.

FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of reading in draft, the lead Judgment just delivered by my learned brother Haruna Simon Tsammani, JCA. The law is well settled that only natural persons or a body of persons clothed with legal personality have the capacity to institute, maintain and/or defend action in a Court of law. It is

further the law that the legal personality of an Incorporated Trustee under Part C of the Companies and Allied Matters Act is proved by the production of Its Certificate of Incorporation. See REGISTERED TRUSTEES, APOSTOLIC CHURCH V. ATTORNEY-GENERAL MID-WESTERN STATES & ORS (1972) ANLR (REPRINT) 359: BANK OF BARODA V. IYALABANI COMPANY LIMITED (2002) 12 SCM 7: ACB V. EMOSTRADE LTD (2002) 8 NWLR (PT. 770) 501.
In the instant appeal, the Appellant vide a Motion on Notice challenged the jurisdiction of the lower Court to entertain the Respondent’s action on the ground that proper parties were not before the Court. The Respondents who filed a Counter-Affidavit to the effect that its Trustees were registered on 18 of July, 1942 with Certificate of Registration No. 143 did not produce the Certificate of Incorporation. In DAIRO V. REGISTERED TRUSTEES OF THE ANGLICAN DICOESE OF LAGOS (2018) 1 NWLR (PT. 1599) 62, the Supreme Court, per Aka’ahs, JSC held as follows:
“The position of the law is that if there is a pleading that impugns the juristic personality of the plaintiff, the evidence needed would be to tender the Certificate of

Incorporation at the trial even if there is evidence of admission about the status of the plaintiff. See: A. C. B. V. Emostrade Ltd (2002) 8 NWLR (Pt. 770) 501 where Uwaifo JSC adopted the statement of Sowemimo Ag. JSC in Registered Trustees of Apostolic Church V. Attorney-General Mid-Western Nigeria (1972) NSCC (Vol. 7) 247 where he observed at page 252:-
“We are in agreement with the learned trial Judge that whatever may be the admission of the 3rd respondent of the status of the appellant, there is no evidence before the Court that the appellant (i.e. the Apostolic Church) was ever a corporate body. This could only be established as a matter of law by the production in evidence of the Certificate of Incorporation, admission inter parties notwithstanding.” See: also J. K. Randle V. Kwara State Breweries Ltd (1986) 6 SC 1.
I agree with my learned brother that the failure of the Respondent to tender its Certificate of Incorporation is very fatal. They failed to establish their legal capacity to institute the action as required by law. To depose to such fact and describe themselves as Incorporated Trustees is not sufficient to prove their legal

personality. The Certificate of Incorporation must be produced before the Court.

It is for the foregoing and the fuller reasons contained in the lead Judgment that I also find merit in this appeal. It is also allowed by me.

Appearances:

Otunba Olayinka Bolanle, Esq. with him, Yekeen O Salau, Esq. For Appellant(s)

Ben Ogunjobi, Esq. For Respondent(s)