IPBC NIGERIA LIMITED & ORS v. IBPC UK LIMITED
(2014)LCN/7069(CA)
In The Court of Appeal of Nigeria
On Monday, the 31st day of March, 2014
CA/L/275/10
RATIO
POSITION OF THE LAW WHERE THE QUESTION OF THE LOCUS STANDI OF A PARTY TO INITIATE CIVIL CLAIMS IS RAISED
Locus standi is the right of a party to appear and be heard on a question before a Court, and when the issue is raised, it is an indirect questioning of the court’s jurisdiction to adjudicate on same- see Pam V. Mohammed (2008) 16 NWLR (pt. 1112) 1 SC. In effect, locus standi beams a searchlight on the party. So, the person instituting the action in Court must have legal capacity or else the Court is robbed of the necessary jurisdiction to entertain it. It is also settled that when the issue is raised, the Court before whom the action is pending is under a duty to determine it first before going into the merit of the action itself – see Baido V. INEC (2008) 12 NWLR (Pt. 1101) 379 and Anisu V. Osayomi (2008) 15 NWLR (Pt. 1110) 246, wherein the Court categorically stated that –
“Where the question of the locus standi of a party to initiate civil claims is raised it should be settled first and decisively, and not shelved- -“.
So, where one party is not a juristic person, the other party may raise this fact as a preliminary objection, and if upheld, leads to the action being struck out; and where the question of the locus standi of a party to initiate civil claims is raised it should be settled first and decisively, and not shelved. PER AMINA ADAMU AUGIE, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
1. IPBC NIGERIA LIMITED
2. ASSOCIATED VENTURES NIG. LTD
3. MR. GOODIE IBRU Appellant(s)
AND
IBPC UK LIMITED Respondent(s)
AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): The Respondent Company is registered in the United Kingdom, which supplies and installs electronic security equipment to Banks and other establishments. It is also a holder of 40% equity in the 1st Appellant Company. In a Petition for Winding Up dated 16/11/2006 and presented at the Federal High Court, Lagos, it prayed that the said 1st Appellant company “be wound up by the court under the provisions of the Companies and Allied Matters Act of 1990” [CAMA].
The three Appellants entered a conditional appearance, and thereafter filed a Notice of Preliminary Objection. The Grounds for their Objection are –
1. That the Petitioner [Respondent herein] is not a juristic person.
2. That the Petitioner lacks the locus standi to institute this Petition.
The Preliminary Objection is supported by a 12-paragraph Affidavit deposed to by Akpofure David lbru, a legal practitioner. To counter same, the Respondent filed a 4-paragraph counter-Affidavit deposed to by one Emmanuel Edet, a Litigation Clerk in the law firm of SOFUNDE OSAKWE OGUNDIPE & BELOGORE.
But that is not all; the Affidavits before the Court include a 3-paragraph Further Affidavit with paragraph 2 thereof containing sub-paragraphs (i) to (xi); a 2-paragraph Further Counter-Affidavit; and a Further and Better Affidavit of 2 paragraphs with paragraph 2 thereof containing sub-paragraphs (i) to (xiii), and attached thereto are Notarized Certified Copies of 5 documents as Exhibits i.e.
* Exhibit B1 – “Certificate of Dissolution issued by the Registrar of Companies for England and Wales. Given at the Companies House, Cardiff dated 5/1/2007”.
* Exhibit B2 – “Notice of Appointment of Liquidator for voluntary Winding up of the said IBPC UK Limited [Respondent Company] that was duly filed at the Companies House United Kingdom”.
* Exhibit B3 – “Liquidators’ statement of Receipts and Payments filed by the Liquidators appointed to wind up the said IBPC UK Ltd., that was duly filed at the Companies House United Kingdom”
* Exhibit B4 -“Return of final Meeting in a Members’ Voluntary Winding Up, which was duly filed at the Companies House United Kingdom.
* Exhibit B5 – “FORM 4.70 – Members’ Voluntary Winding Up Declaration of Solvency Embodying a Statement of Assets and Liabilities, which was duly filed at the Companies House, United Kingdom”.
After hearing arguments from counsel, the learned trial Judge, T. Abubakar, J. (as he then was) delivered his Ruling on 10/12/2007, wherein he held that –
“- – The main basis of Applicants’ objection is that the Petitioner is not a juristic person, having been wound up. The Petitioner/Respondent contested the evidence of winding up and alleged that the document evidencing winding up is not genuine. I think considering the facts and circumstances of this objection, interest of justice will be better served if the objection is dismissed, and the Petition is heard and determined on its merit. I therefore accordingly dismiss the objection and order that this Petition be heard on its merit”.
Dissatisfied, the Appellants applied to this Court and were granted leave to appeal against the Ruling. They filed a Notice of Appeal containing 3 Grounds of Appeal against the said Ruling. Briefs of Argument were duly filed, and in the Appellants’ Brief of Argument prepared by Aherhe Akpojaro, Esq., it was submitted that the following issue calls for determination in this appeal-
“Whether the learned trial Court erred in law when it failed to rule on the evidence, contained in exhibits B1-B5, attached to the Further and Better Affidavit as to whether the Respondent is a juristic person, before holding that the Winding up Petition be heard on its merit”.
The Respondent disagreed with the issue as formulated, and argued in his Brief settled by Olanlokun Olodun, Esq. that it could be succinctly reframed thus –
“Whether the Appellants had established the lack of juristic personality in the Respondent by legally admissible evidence as alleged in the lower Court”.
Going through the processes filed, and considering the arguments canvassed for and against the preliminary objection, I am of the firm view that the issue at stake is simply whether the lower Court was right to dismiss the objection.
The Appellants pointed to Exhibits B1-B5 set out earlier, and submitted that though the Respondent purported to contest the veracity and authenticity of the Exhibits, it never expressly deposed that they were fake or not genuine, except to the extent expressed in paragraph 2(iv) of the Counter Affidavit, where it said that “the annexure relied upon to support the contention of the Applicant did not emanate from the regulatory statutory authority in England”.
They also referred to its averments in its Further Counter Affidavit, as follows-
2. I was informed by – – – senior associate charged with the conduct of this matter as follows, that:
i. He has seen the application dated and filed on April 3, 2007 by the Respondent herein seeking leave to file further and better affidavit together with the Exhibits annexed thereto;
ii. He verily believes the said Exhibits sought to be relied upon are not genuine because of a statement credited to the authorities in the United Kingdom as having admitted that the mere filing of document with the Companies House in the UK is not conclusive proof of the genuineness of the said documents according to law”. (Underlining theirs)
iii. The above admission is contained in a recent edition of a British publication called Director, the relevant pages of which are hereto shown to me and marked Exhibit UK 1.
And argued that the above depositions are not responding to the objection itself but only refers to the Application dated and filed on 3/4/2007 by the Respondent herein seeking leave to file Further and Better Affidavit together with the Exhibits annexed thereto’, and as such they are material only as response to the said Application and not the substantive preliminary objection.
The Appellants further submitted as follows at pages 7 and 8 of their Brief –
* The Respondent admits that the documents are proof of its winding up but only claims that they are not conclusive proof, and worse still, not by any direct evidence available to him or any law, but by the allusion to an advertorial placed by a certain organization apparently called ‘Protect my Company’ with website address as protectmycompany.co.uk.
* The extract of the said Magazine is not in fact a certified true copy, or in any way authenticated whatsoever or howsoever by the publishers or anybody authorized to be in proper custody of the said magazine, and accordingly is not admissible. (Section 97 (2) (c) of the Evidence Act LFN 2004 referred to)
* The law is settled that once the issue of the existence of a company arises, the only evidence of proof is the tendering of the certificate of incorporation or other evidence of its continued existence. (Nduka V. Ezenwaku (2001) 6 NWLR (Pt. 709) 57, Ifedapo Community Bank Ltd. v. C & S Church (2001) 7 NWLR (Pt. 712) 508 and P.G.S.S. Ikachi v. Igbudu (2005) 12 NWLR (Pt. 940) 543 cited).
* The Respondent did not produce any evidence of its existence, but instead apparently required [them] to produce what would in its estimation be the conclusive proof of its lack of existence. This onus which [it] foists on [them] is not known to law. The onus is on [it] to provide evidence of its lack of existence. It is enough that it alleges it, as in most cases there is no evidence of the lack of the existence of something, as it has to exist for there to be evidence of its existence.
* The onus of proving forgery or fakery which is assumed by the Petitioner upon its allegation that the documents tendered by the Respondent are not authentic, and accordingly fake and/or forged is criminal or quasi criminal and as such the standard of proof is beyond reasonable doubt. (Section 138 (2) of the Evidence Act cited).
* And that in line with the established standard of proof, the Respondent has in fact not tendered any evidence of fakery, (typical of which would have been a sworn declaration by the signatory or custodian of the said documents that they are fake and not produced from his custody or that his signature was forged) sufficient for the Court to hold that indeed the documents were unauthentic.
They urged us to hold that it has not proved or even tendered any viable or admissible evidence to prove that it is a juristic person, and to further hold that it has been wound up, thus, the suit is liable to be, and should be dismissed.
They also argued that the existence or non-existence of a Petitioner in a winding up proceeding is a jurisdictional matter at the centre of locus to sue, citing Madukolu v. Nkemdilim (1962) 1 ANR 587; 2 SCNLR 341, Uzoho V. N.C.P (2007) 10 NWLR (Pt. 1042) 246; and that the law is that parties should be juristic persons or natural persons existing or living at the time of instituting an action, citing Management Enterprises Ltd. V. Otusanya (1987) 1 NSSC 577.
Furthermore, that it also the law that if a matter of jurisdiction is made, it must first be determined before further steps are taken and the lower Court ought to have resolved the issue whether the Respondent has been dissolved as evidenced by Exhibit B1, which effectively brings its life to an end, citing in Management Ent. Ltd V. Otusanya (supra), Madukolu V. Nkemdilim (supra), Shittu V. Ligali (1941) 16 NLR 21, Agbonmagbe Bank Ltd. V. General Manager G. B. Olivant Ltd. & Anor. (1961) ANLR 116; that to proceed on the matter, the Court ought to first of all hold that it has jurisdiction to hear the matter, which ought to have done after considering the issues raised in the Objection, citing Ogunyande V. Oshunkeye (2007) 15 NWLR (Pt. 1057) 218; that until the issue of locus standi was determined, the Court could not properly assume the jurisdiction to hear substantive matters in the Petition; and that its said Ruling did not show consideration of whether the Respondent is a juristic Person before proceeding to assume jurisdiction of the substantive matters in the suit, citing Oro V. Falade (1995) 5 NWLR (Pt. 396) 402, Mogaji V. Odofin & Ors. (1978) 4 SC (Reprint) 65, and Okoli V. Okoli (2003) 8 NWLR (Pt. 823) 565.
They further argued that what the Lower Court has attempted to do is to regard the matter of jurisdiction or locus to sue not as substantive matters but instead go ahead to consider substantive matters of the merits of the Petition for winding up outside them; that even though it appears that it only intended to consider the matter of locus not as a preliminary issue but along with the substantial matters of the main suit, it erred when it held that the preliminary objection was dismissed, the purport in law being that they may not be raised again before the same Federal High Court and that in fact the preliminary objection was not considered on the merit as witnessed by the lower Court’s Ruling and accordingly, the Ruling cannot be said to be one on the merit in law.
The Respondent contends that the Appellants’ objection to its Petition is totally devoid of merit as it relied for its sustenance on documents of dubious provenance, and that their arguments are dilatory in nature and fail to address the grave allegations against the authenticity of the documents relied upon.
On the purported proof of its winding-up, it referred to what it termed – “purported Notice of Dissolution, which bore the legend” –
“The Liquidators Account and Return of Final meeting having been registered, this Company is deemed, pursuant to Section 585(5)/595(6), as applicable, of the Companies Act, 1985 to be dissolved on the expiration of 3 months from the registration date shown below. REM REGISTERED DATE 18/10/93” –
And submitted that the said objection was resisted on the following grounds –
a. Non-compliance with the provisions of Section 106 (j) [the old Section 113 [J] of the Evidence Act, 2011 which provides that:
“The following public documents may be proved as follows:
(j) public documents of any other class elsewhere than in Nigeria, by the original, or by a copy certified by the legal keeper of such documents, with a certificate under the seal of a notary public, or of a consul or diplomatic agent that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country.
b. While the documents were purported certified on the authority of their legal custodian, there was no certification under the seal of a notary public or consul or diplomatic agent attesting to its certification by the legal custodian of the document as required in the statute. In this regard, the court was urged to exercise great caution in according same any credibility or authenticity in view of the statement contained in the Director, a business related publication with wide circulation in the UK, where it advised thus:
“According to the Home Office, identity fraud costs Britain ?1.7 billion a year. And corporate identity fraud across all business sectors is one of the fastest growing areas of all. Simply by lodging forged forms at Companies House, which is not by law obliged to check whether documents submitted are genuine and does not have the resources to do so, fraudsters can change your registered office and directors. Effectively stealing your identity and leaving them clear to empty your banks accounts and trade on your company credit history.
It further argued that with such a warning in mind, we will see that having failed the parameters for authenticity set out in S. 106(J) of the Evidence Act; the documents are worthless for the purposes to which they were offered, citing Nigerian Paper Mill v. Pithawalla Eng. (1989) 1 NWLR (Pt. 99) 622 at 631.
The decision in Nigerian Paper Mill v. Pithawalla Eng. (supra) which it set out in its brief, is the cornerstone of its arguments, and I will do same here –
“I therefore have only to consider whether the learned trial judge was right in holding that the Claimants were a juristic person – – the onus is on the Appellants to established that the Claimants are not incorporated outside Nigeria and therefore cannot institute an action … there is also the question of the mode of proving a public document which is outside Nigeria. Although neither counsel referred to it in their submission, I think it is necessary for me to do so. But Section 112(f) of the Evidence Act public documents outside Nigeria may be proved ‘by the original or by a copy certified by the legal keeper thereof with a certificate under the seal of a notary public, or of a consul or a diplomatic agent that the copy is duly certified by the officer having legal custody of the original and upon proof of the character of the document according to the law of the foreign country. Attached to the further and better affidavit is Exhibit LP1, a copy of the original transcript from the Commercial Registrar of the Local Dusseldorf, certified by the Keeper. A certified translation of the said the original transcript duly authenticated by the Nigerian Embassy in Bonn was also attached to the affidavit as Exhibit LP2. Added to the authentication by the Nigerian embassy is a letter Exhibit LP6 written by the German Embassy in Nigeria confirming the Respondent’s registration in Germany as a private limited liability company, The Claimants also attached to the affidavit Exhibit LP3, the deposition by one Rolf Kamp for a Notary Public testifying to the due registration of the Claimant as an incorporated company. The Claimants went further to prove the character of the document as envisaged by S. 122(f) by procuring Exhibit LP4, a legal opinion of one Dr. Ralph Wollburg, expert on German law relating to the due registration of the claimant is Germany and their legal existence. Dr. Wolburg stated amongst other things that ‘Gmbh’ stands for ‘limited liability Company’ and that according to German Corporate law such a limited liability company ‘can in its own name bring legal action and sue in court in its own name.’ I reject the contention of learned counsel for the Appellants questioning the admissibility of any of these documents until they are shown to be false or incorrect. The position is that by Section 112 (f) once a copy of the public document is duly certified and authenticated it becomes admissible by its mere production. It is unnecessary to call a witness to verify it. It seems to me odd that the Appellants should question the authenticity of the documents, including the authentication by the Nigerian Embassy in Bonn. There is a presumption that their contents are correct. There is nothing in the affidavit of the Appellants showing that ‘Gmbh’ does not stand for ‘limited liability Company’ or that the Claimants were in fact not so registered”.
It submitted that being bereft of the multi-level signifiers of authenticity as provided for in S.106(j) of the Evidence Act and expatiated in that Judgment, the Exhibits enjoy no such presumption of authenticity, and “fatally suffer a critical genuineness deficit as to be unworthy of the paper they are printed on”.
It referred to an English book – Blackstone’s Statutes Company Law 2005/2006, 9th Ed. by Derek French, Exhibit B3 made pursuant to Section 192 of the Insolvency Act, 1986 [UK], Section 192 of the Companies Act 1986 [UK], a section of the book titled Sources of Amendments, and submitted that this shows that the Exhibits purportedly showing its winding up in 1993 relied on laws that were repealed since 1986, and could not have been genuinely issued by the Companies House in England, which is why they could not satisfy the authenticity benchmarks, which are preconditions for their admissibility; that it made this argument at the Lower Court but it was never controverted, and in this appeal but it is still not controverted; and that such failure amounts to their conceding the point, citing Adesanya V. Otuewu (1993) 1 NWLR (Pt. 271) 414 and Ugboaja V. Akintoye-Sowemimo (2008) 16 NWLR (Pt. 1113) 278.
It also submitted that it is common ground between the parties that the 2nd Appellant owns 60% of its Ordinary Shares while minority shares were held by Mr. Malkani; that the silence on the fate of the equity holders shows that the purported winding up was not carried out according to law if it was ever carried out, which is also a critical signifier to the dubious provenance of the winding up documents relied upon; that having shown the grave authenticity deficit that afflicts the documents, the only reasonable inference to be drawn is that they could not have issued from the Companies House in England and accordingly, the preliminary objection which relies on the legally inadmissible documents was properly dismissed by the Lower Court; and that having shown that they could not have emanated from the English public office credited to it, they are nothing but common forgeries, which is the only reasonable inference if the Court finds merit in the arguments against their admissibility and that the Exhibits are not foreign public documents; any other conclusion is precluded.
The Respondent further submitted as follows at page 9-10 of its brief –
“This allegation of illegality made against ranking counsel and an eminent Nigerian is not made tightly and can only be appreciated against the backdrop of Mr. Ibru’s antecedents some of which are catalogued hereafter.
i. The Petition to wind-up the 1st Appellant Company was presented by the Respondent in the Lower Court pursuant to a shareholders’ disagreement over Mr. Ibru’s demand that his 60% equity in the company be purchased for $1 million – see para 8 of the Petition – – Also at p.151- RA is a receipt showing payment by Mr. Ibru for 60% of the shares in the respondent company. The fact of the negotiations for said purchase of the 60% equity is shown in Mr. Ibru’s lawyer’s letter of July 2006 at pp. 24-26 RA where it is said that:
“At a meeting held on 14th February 2006 between both our client and Mrs. Malkani; the latter expressed a desire and/or intention to purchase and/or acquire the 60% of the shares of IPBC held by AVIL”.
ii. We maintain that the demand for a buy-out flowed from Mr. Ibru and not Mrs. Malkani but if indeed the Respondent had actually been wound up in 1993 to Mr. Ibru’s knowledge, then we submit, the subsequent negotiation for the buyout of his shares therein was in total bad faith! Apart from this, he knowingly let the Company to carry on business in Nigeria (when it shouldn’t have, if the evidence of its winding up were genuine) and drew salaries from his Chairmanship of its board of directors.
iii. The conduct of Mr. Ibru subsequent to the Respondent’s failure/refusal to buy his equity for 1 million dollar (the facts of which are set out in para 3(1) (ix-xii) of the Respondent’s process titled Counter Affidavit to Motion dated 29/2/2012 attached to this brief) is sufficient for the inference to be drawn that it was his extortionate valuation and demand that was rejected not the Respondent’s.
iv. Mr. Ibru’s penchant for resort to self-help in resolving disputes with third parties is well documented. This Court’s decision in The Tourist Co. Nig. Plc. Ikeja Hotels Plc. & Mr. Goodie Ibru v. Maersk Nig. Plc.( 2001) 37 WRN 26 is relevant to these proceedings. It is public knowledge that the Tourist Co. Nig. Plc and Ikeja Hotels Plc are the holding companies of the Federal Palace Hotel and the Sheraton Hotel, Ikeja, respectively, while Mr. Goodie Ibru is the directing mind of both companies. In that case, the following facts emerged:
a. The 3rd appellant, Mr. Goodie Ibru, is a director in the 1st & 2nd Appellant Companies;
b. The Respondent in the Court below alleged forceful trespass and damage to its property by the 1st & 2nd Appellants on the instruction of the 3rd Appellant, Mr. Ibru;
c. This Court upheld the decision of the Lower Court finding the Appellants liable for trespass on the Respondents’ property;
d. The Court of Appeal further restrained the Appellants from any further acts of trespass on the subject property and that an inquiry be made into the damages suffered by the Respondent due to the forceful trespass of the Appellants.
It made other allegations against the 3rd Appellant that are out of place here.
As a matter of fact, part three of its brief from pages 10 to 12 is headed – “CONDUCT OF MR. GOODIE IBRU, ESQ. It referred us to Saeby V. Olaogun (1999) 14 NWLR (Pt. 637) 128 at 143, where Ayoola, JSC, stated as follows –
“- -In appropriate cases, a Court may comment on the conduct of counsel in the conduct of a case before it, a comment which impugns the probity of counsel in the conduct of the case should not be lightly made and should not be made unless the probability of such conduct is clear beyond peradventure”.
And argued as follows in the second paragraph of that part of its brief that –
“- – Mr. Goodie Ibru is a member of the bar with substantial ranking. While the judicial statement above seems applicable only to counsel conducting proceedings in Court – – same is similarly applicable to lawyers who by their specialist training, are duty-bound to act lawfully, honourably and assist the Court in doing justice in a matter. Our contention is that Mr. Ibru’s conduct as shown above is a grove departure from this bounden duty and violative of the ethics of our noble profession as enshrined in the Rules of Professional Conduct for Legal Practitioners 2007”.
Of course, the allegations made by the Respondent against the 3rd Appellant are of no concern to us in this appeal, and are totally inappropriate, I must add. The conduct of the 3rd Appellant in this case or in any other case has nothing to do with the Appellants’ objection to the Petition presented at the Lower Court.
The Appellants objected to the Petition presented by the Respondent on two grounds – that it is not a “juristic person” and it lacks the “locus standi” to institute the Petition. It is a fundamental principle of law that only a natural or juristic person can sue or be sued – see Admin/Execs, Estate, Abacha V. Eke-Spiff & Ors. (2009) 7 NWLR (Pt. 1139) 97 SC, where Mohammed, JSC, stated –
“As a general rule, only natural persons, that is to say, human beings and juristic or artificial persons such as bodies corporate are competent to sue and be sued before any law court. In other words, no action can be brought by or against any party other than a natural person or persons unless such party has been given by statute expressly or impliedly or by common law either a legal personality under the name by which it sues or it sued or a right to be sued by that name – – – This is because a law suit is in essence, the determination of legal rights and obligations in any given situation. Therefore, only such natural juristic persons in whom the rights and obligations can be vested are capable of being proper parties to law suits before Courts of law. Following this general rule, where either of the parties is not a legal person capable of exercising legal rights and obligations under the law, the other party may raise this fact as a preliminary objection, which if upheld, normally leads or results in the action being struck out”.
The legal concept of locus standi, on the other hand, is predicated on the assumption that no Court is obliged to provide a remedy for a claim in which the Applicant has a remote, hypothetical or no interest – see Att. Gen. Kaduna State V. Hassan (1985) 2 NWLR (Pt. 8) 483 SC, and Adesanya v. President, FRN (1981) 2 SCNLR 358, where Obaseki, JSC, aptly observed that “the fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint before the High Court not on the issue he wishes to have adjudicated.
Locus standi is the right of a party to appear and be heard on a question before a Court, and when the issue is raised, it is an indirect questioning of the court’s jurisdiction to adjudicate on same- see Pam V. Mohammed (2008) 16 NWLR (pt. 1112) 1 SC. In effect, locus standi beams a searchlight on the party. So, the person instituting the action in Court must have legal capacity or else the Court is robbed of the necessary jurisdiction to entertain it. It is also settled that when the issue is raised, the Court before whom the action is pending is under a duty to determine it first before going into the merit of the action itself – see Baido V. INEC (2008) 12 NWLR (Pt. 1101) 379 and Anisu V. Osayomi (2008) 15 NWLR (Pt. 1110) 246, wherein the Court categorically stated that –
“Where the question of the locus standi of a party to initiate civil claims is raised it should be settled first and decisively, and not shelved- -“.
So, where one party is not a juristic person, the other party may raise this fact as a preliminary objection, and if upheld, leads to the action being struck out; and where the question of the locus standi of a party to initiate civil claims is raised it should be settled first and decisively, and not shelved. In this case, the Appellants raised these issues in their Notice of Preliminary Objection but the lower Court dismissed the said objection without looking into their merits. The Appellants are right; the lower Court erred when it dismissed the objection but the question that rears its head is – what do we do with the said objection?
The Appellants submitted under their GENERAL CONCLUSIONS that on the basis of their arguments, this Court ought to allow this appeal, set aside the lower Court’s Ruling, and substitute orders for the reliefs claimed because –
1. Exhibits B1-B5 contained in their Further and Better Affidavit dated 3/4/2007 and filed on the same date is conclusive proof that the Respondent to this appeal has indeed been dissolved by the Registrar of Companies in England and Wales.
2. The lower Court erred in law when it misdirected itself on the issue of Jurisdiction and did not properly evaluate the Evidence of the lack of Jurisdiction before [it] as there was enough evidence for [it] to hold that there was manifest absence of the requisite jurisdiction to entertain the Respondent’s suit. The Respondent not being a person known to law the lower Court lacked the jurisdiction to hear the suit.
3. The Lower Court erred in law when it failed to rule on whether the Respondent is a juristic person before proceeding to assume jurisdiction as the said Exhibits B1-B5 is conclusive proof that the Respondent is not a juristic Person.
4. The Lower Court erred in law when it failed to rule on whether the Respondent to this appeal has the locus standi to commence or maintain a Petition for winding up especially where the processes before the trial Court demonstrates that the Respondent to this appeal has no locus standi.
In effect, they are asking this Court to exercise its powers under Section 16 of the Court of Appeal Act, which gives us two options that I can see straight off-take this matter as if it is a Court of first instance or remit it to the Lower Court.
As a Court of first instance, we must go through the evidence before it. The Appellants attached Exhibits B1-B5 to their Further and Better Affidavit, which they claim is proof that the Respondent has been wound up in the UK. But the Respondent alleged that the documents in evidence as Exhibits B1-B5 “are nothing but common forgeries”. The Appellants tried to make a case that although it purported to contest the veracity and authenticity of the Exhibits at the Lower Court; it never expressly averred that they were fake or not genuine.
They conceded that it averred in paragraph 2(iv) of its Counter Affidavit that the annexure relied upon to support [their] contention did not emanate from the regulatory statutory authority in England” but tried to argue that the averment in its Further Counter Affidavit that the Exhibits “are not genuine”, refers to another Application and not the substantive preliminary objection.
I am baffled by their argument; it is settled law that all the processes in the Record or Court’s file are read together. The Respondent’s position is that the documents are not only inadmissible in law but that they are also forgeries. Whatever the case may be – whether the documents are fake or inadmissible, these are not issues that can be resolved with the Affidavit evidence before us.
As the Appellants themselves said – the allegation of forgery is criminal or quasi criminal, and the standard of proof is that beyond reasonable doubt – see ACB Plc. V. Ndoma-Egba (2000) 8 NWLR (Pt. 669) 389 where it was held –
“Forgery is a criminal offence. The onus is on the party who alleges it to establish the forgery and this he must do beyond reasonable doubt – -“.
In any event, Section 138(1) of the Evidence Act 2011, specifically states that –
“If the commission of a crime by a party to any proceedings is directly in issue in any proceedings civil or criminal, it must be proved beyond reasonable doubt”.
Can we settle this weighty issue based on documents attached to an Affidavit? I think not; the first option is not open to us and we will take the second option – remit the objection to the Lower Court to be argued along with the Petition.
I do agree with the Appellants that the Lower Court may have intended to do just that but it certainly erred when it dismissed the objection because the consequence thereof is that it could not be raised again at the lower Court.
This Appeal is allowed in part. The Ruling of the Lower Court is set aside, and the objection is remitted to the lower Court to be heard with the Petition. There will be no order as to costs.
JOSEPH SHAGBOAR IKYEGH, J.C.A.: I agree with the Judgment prepared by my learned brother, Amina Adamu Augie, J.C.A. [Hon. PJ], and adopt it as my Judgment with nothing useful to add.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, A. A. AUGIE JCA. I agree with his Lordship’s reasoning and conclusions.
The issues as to the genuineness and authenticity of the documents are not matters that can be heard by affidavit evidence. Oral evidence is necessary. Why dissipate energy dealing with the matter at that interlocutory stage when it can be taken with the substantive petition?
There is no doubt that the intention of the learned trial Judge was that the objection be heard together with the substantive petition. But inadvertently his Lordship dismissed the objection. I also allow the appeal in part. The Ruling is set aside and the objection remitted to the lower Court to be heard with the petition. I abide by the order of my learned brother as to costs.
Appearances
A. Akpojaro, Esq., with N. I. Opie, Esq.For Appellant
AND
Olanlokun Omoladun, Esq., with L. A. Owolabi, Esq, C. C. Ezedari, Esq., and Babs Animashaun, Esq.For Respondent
