DIKKO AND SONS LIMITED v. CORPORATE AFFAIRS COMMISSION (2014)

DIKKO AND SONS LIMITED v. CORPORATE AFFAIRS COMMISSION

(2014)LCN/7718(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 18th day of June, 2014

CA/A/351/2010

RATIO

COMPANY LAW: LEGAL PERSONALITY; HOW TO ESTABLISH THE LEGAL PERSONALITY OF A CORPORATE BODY
Well, following the case of APOSTOLIC CHURCH v. A.G. MIDWESTERN STATE (1972) 7 NSCC 247, the Supreme Court in ACB v. EMOSTRADE (SUPRA) held at page 518, 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 parties notwithstanding. Therefore, whatever might have been the admission of one of the parties to the suit as the status of an alleged corporate entity, if there is no evidence before the court that it is ever incorporated, the admission alone, cannot suffice.”
This is a principle of law established by the Supreme Court and its application is such that it is not necessarily dependent upon the facts of different cases. In other words, it is of blanket application and whenever the incorporation of a company is in issue, the proof of that incorporation, is always the production of the certificate of incorporation. per. ABUBAKAR DATTI YAHAYA, J.C.A.

EVIDENCE: BURDEN OF PROOF; WHICH OF THE PARTIES HAS THE BURDEN OF PROOF IN A PROCEEDING

COURT: DUTY OF COURTS; THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE LED AND ASCRIBE PROBATIVE VALUE TO SUCH EVIDENCE
It is correct, that a trial judge has the primary duty of evaluating evidence led and ascribing probative value to such evidence, in order to arrive at a just decision. Where the trial court discharges this duty, the appellate court will not interfere – FAGBENRO v. AROBADI (2006) 7 NWLR (Pt. 978) 174. The court is to put the evidence led by the parties on an imaginary scale and weigh same to see which is heavier.
However, in the evaluation of evidence, a trial court is not expected to put every piece of evidence led, on the scale, in order to weigh same. The evidence that would be weighed, would be that which is admissible, conclusive, and importantly, that it is relevant, See MOGAJI v. ODOFIN (SUPRA). per. ABUBAKAR DATTI YAHAYA, J.C.A.

Before Their Lordships

AMIRU SANUSIJustice of The Court of Appeal of Nigeria

ABUBAKAR DATTI YAHAYAJustice of The Court of Appeal of Nigeria

JOSEPH TINE TURJustice of The Court of Appeal of Nigeria

Between

DIKKO AND SONS LIMITEDAppellant(s)

AND

CORPORATE AFFAIRS COMMISSIONRespondent(s)

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): The appellant herein, as the plaintiff at the trial court, took out an action against the respondent, which was the defendant. The following reliefs were claimed in the statement of claim –

“1. A Declaration that the defendant was negligent and or in error by registering A DIKKO AND SONS NIGERIA LIMITED when it knew or ought to have known that A DIKKO AND SONS LTD (the plaintiff) was in existence.

(2) Payment of the sum of N8,349,500.00 being special damages for the loss of 3 Diamond Bank cheques viz: Cheque No. 3216 for the sum of N2,697,500.00, cheque No. 00020855 for the sum of N2,474,400.00 and cheque No. 00020855 for the sum of N3,177,600.00 suffered by the plaintiff.

(3) Interest at 21% per annum from August 30th 2009 up to the date of judgment and eventual payment.

ALTERNATIVELY TO CLAIMS 2 AND 3 ABOVE N10,000,000.00 General damages for losses suffered by the plaintiff.

After the parties had exchanged pleadings, the case went to trial and on the 18th of May 2010, the trial court dismissed the appellant’s case. Being dissatisfied with that judgment, it appealed to this Court.

The case of the appellant at the trial court is that it was registered by the respondent as a private limited liability company on the 4th of September, 2008, with Registration No. 771050. The respondent, as a Federal Government Agency, is charged with the responsibility of regulating and registration of companies, amongst other things. In breach of section 30(1) (a) of the Companies and Allied Matters Act (CAMA), it negligently registered another company called A DIKKO AND SONS NIGERIA LIMITED on the 17th of December, 2008, with registration No. 791987. Thereafter, cheques meant for the Appellant, were lodged in an account with a commercial bank, by the person who promoted A. DIKKO AND SONS NIGERIA LIMITED (hereafter called the 2nd company) and he made away with the money. The appellant contended that but for the negligence of the respondent in registering the 2nd company, very similar in name with it, it would not have suffered the losses it incurred. The appellant did not produce and tender the certificate of incorporation of the 2nd company and the trial court held that on that score, it was not able to award damages in favour of the appellant.
The appellant’s brief of argument was settled by Mr. Adekola Mustapha and it was filed on the 18th of October 2010. He identified three issues for determination thus –

1. Was the Supreme Court decision in ACB Plc & Anor v. Emostrade Limited (2002) 8 NWLR (Pt. 770) 501 rightly applied by the learned trial judge to the instant case?

2. Did the learned trial judge properly evaluate and appraised (sic) the evidence led in support of the pleadings filed by the parties.

3. Was the learned trial judge correct to hold that the Appellant did not prove the fundamental ingredient of actual duty of care owed it by the Respondent?

He also filed Appellant’s Reply brief on 12/9/12.

The Amended Respondent’s brief of argument was settled by learned counsel, A. B. Mahmud and filed on the 20th of February, 2012. He identified three issues, but at the hearing of this appeal on the 20th of March 2014, he abandoned Issue No. 2 along with the arguments on it. The Issue was struck out. So the two Issues he identified are –

1. Whether from the pleadings and evidence before the court, the plaintiff/appellant has established the breach of its statutory duty of care and or its breach by the Defendant/Respondent’s alleged registration of the company called “A DIKKO And Sons Nigeria Limited”?

2. Whether the evaluation of the evidence by the trial court has occasioned a miscarriage of justice on the appellant.

In view of the fact that the Issues identified by the Appellant are property based on the grounds of appeal, I shall utilize them in resolving this appeal

ISSUES NO. 1 and 3 TOGETHER

Learned counsel for the appellant submitted that the decision of higher courts are binding on the lower courts to follow, but that is only where the facts of the two cases are similar or where the issues are the same. When they are not, the lower court can distinguish the case. He relied on OSAKUE v. F.C.E. ASABA (2010) 10 NWLR (Pt. 1201) 1 at 834; DALHATU v. SARAKI (2003) 15 NWLR (Pt. 843) 310 and UNIVERSITY OF ILORIN v. OLUTOLA (2004) 18 NWLR (Pt. 905) 416. He then submitted that the case of ACB v. EMOSTRADE (SUPRA) applied by the trial court is different from the instant matter and there was therefore a misapplication of it here. He enumerated what those differences are, the most prominent being that in Emostrade’s, case, the plaintiff had pleaded that it is a limited liability company, the defendants had specifically denied that averment in their joint statement of defence; but in the instant matter, counsel argued that when the plaintiff had pleaded the registration of the 2nd company, the defendant had specifically admitted same in paragraphs 13 and 19 of the statement of defence, or at best, had not properly traversed same, specifically, but was evasive. In such a situation, there is no specific challenge to the averments of the plaintiff and so no issues had arisen thereby, making the averments uncontroverted, he argued. He relied on ALAO v. ALAO (1986) 5 NWLR (Pt. 45) 802; ADELEKE v. ANIKE (2006) 16 NWLR (Pt. 1004) 131 at 169; DAGGASH v. BULAMA (2004) 14 NWLR (Pt. 892) 144; BALONWU v. OBI (2007) 5 NWLR (Pt. 1028) 488; NNPC v. SELE (2004) 5 NWLR (Pt. 866) 379 at 412 – 413 and Order 13 Rule 35(2) of the Federal High Court Rules 2009. He pointed out to paragraph 9 of the statement of defence, where the defendant said it was not in a position to deny or admit the plaintiff’s averments. Still yet, learned counsel argued that even if these points are not acceptable to this court, and there was proper traverse, the defendant had in fact admitted registering the 2nd company, in paragraphs 13 and 19 of the statement of defence, and such admission ought to have been taken as “estoppel, to the admission of any evidence contradicting them.” He referred to section 75 of the Evidence Act and argued that at any rate, the trial judge could have asked for “further evidence from the appellant if he was not satisfied with the admission of registration of the alleged company made by the respondent…” Counsel however, did not say at what stage of the proceedings in the case, was the trial judge to feel dissatisfied with the admission of registration. Was it before the plaintiff concluded its hearing or after?
Learned counsel for the appellant also attacked the procedure where the learned trial judge allowed the respondent to raise the issue of non production of the original certificate of registration of the 2nd company at the stage of address, when there was already admission of registration and parties bound by their pleadings – YUSUF vs. ADEGOKE (2007) 11 NWLR (Pt. 1045) 332 at 353 and NIPC LTD v. THOMPSON ORGANISATION LTD (1969) 1 NMLR 99.

Learned counsel for the appellant also submitted that the evidence of the respondent “on registration of a company in Nigeria should be taken as the best evidence to the exclusion of any other evidence including production of the original certificate of incorporation when proof of registration is in issue.” This is because it registers all companies, he argued. He referred to the Exhibits showing particulars of directors, share holders and Memorandum and Articles of Association of the 2nd company. He argued that the issue in this matter presented to the trial court, which parties had joined, is the issue of negligence of registration of the 2nd company by the respondent, but not whether the 2nd company was registered. There was therefore a misconception by the trial judge and since the issue in EMOSTRADE’S case is on registration of the company, that case is not applicable here. He urged us to so hold.

On the third issue, learned counsel for the appellant submitted, by referring to page 181 of the record, that the trial judge had agreed, that the respondent owed a duty of care to the Appellant by ensuring that a company identical or similar to the appellant is not registered. Since that is so he argued, the issue of whether or not the respondent owed the appellant a duty of care was settled “leaving the only issue of whether or not the appellant proved that the Company A DIKKO AND SONS NIGERIA LIMITED was registered by the respondent.” He argued that the appellant had led evidence to show its losses of over N8,000,000.00.
Responding, the learned counsel for the respondent at paragraph 4:10 of the Amended Respondent’s brief categorically stated that –

“….it is conceded that a statutory duty of care was owed the Appellant by the Respondent as rightly resolved by the judge in his 2nd issue for determination at pages 181 and 182 of the main record before this court. But the Respondent contests that the said duty of care was proved on the pleadings and the evidence before the court to have been breached by the Respondent.”

With the above, there is therefore no controversy between the parties, that the respondent owed a duty of care to the appellant. The bone of contention is whether that duty had been breached by the respondent.
Counsel for the respondent submitted that the appellant did not produce the required evidence to discharge the onus placed on it, that the respondent had breached that duty. It did not produce the certificate of registration of the 2nd company and that is fatal to the claim, he argued.

Counsel referred to pages 20 and 21 of the record containing paragraph 20 of the statement of claim which he said is the crux of the allegation, that the respondent registered the 2nd company similar or identical to the appellant in breach of section 30(1) (a) of CAMA, but that the respondent had, in paragraphs 11, 12, 13, 15 and 16 of the statement of defence, vehemently denied the allegations and the negligence. He argued that issues had thereby been joined on the registration of the second company, implying breach of duty of care and negligence. He then referred to section 131, 132 and 133 of the Evidence Act 2011 and the case of IMO CONCORDE HOTEL LTD v. ANYA (1999) 4 NWLR (Pt. 234) 210 at 221; ALHAJI OTARU v. IDRIS (1999) 6 NWLR (Pt. 606) 330 at 342 and JUMBO v. SHELL PETROLEUM DEV. CO. (NIG) LTD. (1999) 13 NWLR (Pt. 633) 57 at 66, and argued that the onus is on the appellant to adduce substantial evidence in proof of the allegations. The only way to this he argued, is, by law, to comply with section 36(6) CAMA. This is because the registration of the two companies must be established, before proving negligence and the attendant losses. The certificate of registration of the 2nd company ought to have been produced, he argued, referring to ACB v. EMOSTRADE (SUPRA), which he said is applicable, since the circumstances of registration, are the same. He argued further, that it was because the appellant wanted to prove the registration of the 2nd company that it tendered exhibits F, G, H, I and J, but these are not enough to serve the purpose.

On admissions, learned counsel submitted that the reliefs claimed are declaratory and therefore positive and strong evidence must be produced to prove them, as admissions cannot suffice. On the case at hand, counsel argued that the purported admissions and or improper traverse of the respondent are not sufficient to discharge the onus on the appellant – MOGUNWASE v. SORUNGBE (1988) 5 NWLR (Pt. 92) 90 at 101.
Where issue is joined between the parties in a litigation on the legal personality of a company, i.e. whether it has been duly registered or not, the certificate of incorporation should be produced, as it is only by that certificate of incorporation that its legal personality can be proved in such circumstances. Nothing else would be a sufficient discharge of the duty placed on the party asserting, in order to prove the incorporation.
It is therefore important to determine here, whether issues had been joined as to whether the 2nd company had been registered by the respondent. Paragraphs 17, 18, 19, 20, 21, 22 and 23 of the statement of claim, pleaded the registration of the 2nd company, by the respondent. For ease of reference I reproduce them here:-

17. This development encouraged the plaintiff to apply to the defendant through its solicitors by a letter dated 12/08/09 wherein it sought to know if another company existed in the name the cheque was written. The defendant replied its letter on the 25/08/09 and to its utter surprise, confirmed that indeed, A DIKKO AND SONS NIGERIA LIMITED was registered with registration No. 791987 on the 17th December 2008 with Mrs. Ugonna Nwafor as a director along with other family members: barely 3 months after the plaintiff company was registered by the same defendant! The letter is pleaded and will be relied upon at the trial.

18. The plaintiff thereafter requested its solicitors to conduct a search on the company to confirm the information given by the commission. The search report is pleaded. The plaintiff did not stop at this, it also applied for and obtained certified true copies of the company memorandum and articles of association, particulars of directors and particulars of share holders from the defendant. All these documents are pleaded. The plaintiff later got information that it was with the certificate of incorporation issued to the woman with all the documents herein pleaded that she used to open a bank account where she lodged the cheques, got them cleared and thereafter made away with the proceeds.

19. The plaintiff discovered upon conducting a search on the company that the name reservation application was submitted by one Mr. Ugoke Ernest Chijoke on behalf of the said Mrs. Ugonna was approved by Mr. Hassan Bala a staff of the defendant. The plaintiff pleads the availability form and notice is hereby given to the defendant to produce it at the trial.

20. The plaintiff avers and contends very strongly that the defendant was in a serious error and or acted recklessly or negligently by registering the A DIKKO AND SONS NIGERIA LIMITED when it knew or ought to have known that the name as identical, similar and in fact resembles the plaintiff company name A DIKKO AND SONS LTD which was registered just 3 months before.

21. The plaintiff wanted to be doubly sure of where the problem came from, so it caused its solicitors to apply to the commission for registration of a fresh company called “A DIKKO AND SONS NIGERIA LIMITED” and when the result of the name availability search came out, the defendant rejected the application and refused to approve it on the ground that A DIKKO AND SONS LTD which is the plaintiff company had been registered. The name availability search report is pleaded and will be relied upon at the trial.

22. The plaintiff avers that by the aforesaid negligence, error and recklessness on the part of the defendant, it registered a company in exactly the same name or at least in a name so similar to its name in all fours thereby assisting the said Mrs. Ugonna to make away with its money (cheques) in the sum of N2,697,500.00, N13,117,000.00 and N2,475,000.00 thereby suffering substantial damages.

23. The plaintiff avers that were it not for the registration of that company A DIKKO AND SONS NIGERIA LIMITED by the defendant, it would have been practically impossible for Mrs. Ugonna to make away with those cheques.

Paragraph 9 of the statement of defence avers –

9. The Defendant is not in a position to deny or admit the plaintiff’s averments in paragraphs 11, 12, 13, 14, 15, 16, 17, 18 and 19 of the Statement of Claim, and puts the Plaintiff to the strictest proof thereof.

It is therefore shown in the statement of claim, quoted above that the plaintiff commenced business activities immediately it collected its certificate of incorporation, and had a valuable customer in the name of S.C.C. Nigeria Limited; it was Mrs. Ugonna Nwafor that linked it to SCC Nigeria Ltd, and she occasionally collected its cheques; that the plaintiff did jobs for SCC Nig. between October 2008, and February 2009 running into millions of naira; that three supplies were made to the company and what transpired between the appellant and Mrs. Ugonna on the supplies; what it authorized or did not authorize Mrs. Ugonna; whether the appellant “began to look for the woman to retrieve the cheques” from her or not; whether it instructed its solicitors to make investigation and what investigation; whether there was a letter confirming registration of the 2nd company with Mrs. Ugonna as a director along with other family members; whether the appellant asked its solicitors to make searches or not and what documents were used by Mrs. Ugonna to open a bank account, and what forms were submitted and whether the name reservation application was truly submitted by Mr. Ugoke Ernest Chijoke and had in fact done so on behalf of Mrs. Ugonna, are issues raised. Since these issues were what the appellant and others did mostly in the absence of the respondent, or what others said they did, the respondent was not in a position to know if they were true or not and therefore put the appellant to the strictest proof of those averments in paragraph 9 of the statement of defence. In my view, issue was therefore joined on registration and other aspects. It was not an admission and it was not an evasive traverse. There could not have been an admission by paragraph 9 of the statement of defence because paragraphs 17 and 18, of the statement of claim, the crucial averments on the 2nd company, did not at all aver that it was the Respondent that registered the 2nd company. Paragraph 17 only said it “was registered with registration No. 791987 on 17th of December 2008….” It did not say that the respondent registered it. Paragraph 18 did not say that “the certificate of incorporation issued to the woman”, was issued by the respondent!

Paragraph 10 of the statement of defence averred that the defendant did not concede “that the defendant was negligent or was in error of registering the two purportedly similar company names.” This was in respect of paragraphs 14, 15, 16, 17, 18 and 19 of the statement of claim. Once it is clear that it said that it did not concede registering the companies and in similar names, they did not concede registering the companies and in similar names, the parties had joined issues on the registration of the 2nd company. It did not admit doing so.

Paragraph 11 of the statement of defence “vehemently” denied the averments in paragraphs 20, 21, 22 and 23 of the statement of claim, which are on the registration of the 2nd company. The respondent in paragraph 11 of the statement of defence, had joined issues on registration of the 2nd company pursuant to paragraph 20 of the statement of claim which avers that –

“The plaintiff avers and contends very strongly that the defendant was in a serious error and or acted recklessly or negligently by registering the A DIKKO AND SONS NIGERIA LIMITED when it knew or ought to have known that the name is identical, similar and in fact resembles the plaintiff company name A DIKKO AND SONS LTD which was registered just 3 months before.”

There is no doubt about it, that the parties had thus joined issues on registration of the 2nd company by the respondent.

By way of emphasis, I need to point out that pleadings are to be read as a whole, not in piecemeal, so as to capture the essence. Upon a proper scrutiny of the pleadings of the parties, it is clear to me, that the respondent did not admit or concede registering the 2nd company. Issues had thereby been joined between the parties on registration of the 2nd company by the respondent. In such a situation, the appellant had the onus of proving the registration of the 2nd company by the respondent: It is only when such proof is adduced, that the question as to whether the respondent was negligent in registering it or not, will arise. When that is answered, then the issue of the loss suffered by the appellant will be taken up.
I am entirely in agreement with counsel for the respondent, that the appellant adduced oral evidence, and tendered exhibits F, G, H, I and J, in order to prove the fact of the registration of the 2nd company by the respondent. The appellant did not before this court douse this opinion.

Since I have held that parties had joined issues on registration of the 2nd company, it follows that they can lead evidence on it or raise same in their addresses. The appellant led oral and tendered documentary evidence to prove the registration of the 2nd company by the respondent and its negligence in doing so. The respondent was therefore well within its rights and it is proper procedure, for it to make submission in its address, as to whether the evidence led by the appellant was sufficient in law, to discharge the burden of proof on it or not. It is after all, at that stage, that it could raise the issue since it had to wait to see at the close of the case, whether the appellant had led sufficient evidence or not. The trial judge did not therefore err, when he allowed the respondent to raise the issue at the address stage. Furthermore, it would have amounted to a clear breach of fair hearing in the circumstances of this case, if the trial judge had felt that the appellant had not adduced sufficient evidence on registration of the 2nd company, to order the appellant to do so. He would have unduly assisted one party against the other and would have lost his pro-eminent position as an unbiased umpire between two contending parties.
Again, since issues on registration of the 2nd company had been joined, it simply means that the crucial aspect of EMOSTRADE’s case is also present in this case and that case is properly applicable to the instant matter.

The first hurdle to surmount here, is to see whether the respondent had in fact registered another company (the 2nd company) similar or identical to the appellant, in breach or default of section 30(1)(a) of CAMA. That would show negligence on its part.

The only way to establish or prove the existence of the 2nd company brought about by the act of the respondent is to produce its Certificate of Incorporation by the respondent. This is because even if a certificate of incorporation of the 2nd company is produced, but it was shown that it was not registered by the respondent, which is the only authority charged with the responsibility of so registering, it would still not be a legally incorporated company. The appellant did not produce the certification of incorporation of the 2nd company by the respondent, and this is not because it is not aware of its obligation or its onus, after all, it produced its own certificate of registration, even though that was not strictly in issue and there is no denial by the respondent, that it had been registered. Instead, the appellant relies on admission and exhibits.
Well, following the case of APOSTOLIC CHURCH v. A.G. MIDWESTERN STATE (1972) 7 NSCC 247, the Supreme Court in ACB v. EMOSTRADE (SUPRA) held at page 518, 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 parties notwithstanding. Therefore, whatever might have been the admission of one of the parties to the suit as the status of an alleged corporate entity, if there is no evidence before the court that it is ever incorporated, the admission alone, cannot suffice.”
This is a principle of law established by the Supreme Court and its application is such that it is not necessarily dependent upon the facts of different cases. In other words, it is of blanket application and whenever the incorporation of a company is in issue, the proof of that incorporation, is always the production of the certificate of incorporation.
I have held earlier, that like the EMOSTRADE’s case, the instant appeal also has an issue joined as to the incorporation of the 2nd company, and the principle of law applied in the EMOSTRADE’s case equally applies here. Even if the facts are different, once the issue of registration is raised, only the production of the certificate of incorporation would suffice. And the registration of the 2nd company here is the foundation which has to be built, before negligence can even be considered.

Section 131 of the Evidence Act places the burden of the proof on the party who would fail if no evidence is produced, and by section 131(1) of the Evidence Act, a person who asserts, and who desires the court to give judgment as to any legal right or liability, dependent on the existence of facts, must prove those facts.
In the instant appeal, it was the appellant that asserted that the 2nd company was registered by the respondent, negligently and it wants the court to give judgment in that respect. It therefore must first of all, prove the registration of that 2nd company by the respondent, by the production of the certificate of incorporation. If it doesn’t it will fail to get the declaration it prays for.

The appellant did not produce that certificate of incorporation of the 2nd company by the respondent. The alleged admissions if any do not suffice. The production of Exhibits F, G, H, I and J is not helpful because the law is that such documents are not sufficient to prove incorporation of companies, Again, oral evidence of DW1, as shown to be relevant in the Reply brief, cannot be adduced to replace the necessity of producing documentary evidence in the form of certificate of incorporation. See HOUSE OF REPRESENTATIVES v. S.P.D.C.N. (2010) 11 NWLR (Pt. 1205) 213 and B.L.G.C. v. BASSEY (2009) 9 NWLR (Pt. 1147) 473 at 481 and section 36(6) CAMA 2004, which provides –

“The certificate of incorporation shall be prima facie evidence that all the requirement of this Act in respect of registration and of matters precedent and incidental to it have been complied with and that the association is a company authorized to be registered and duly registered under this Act.”

With the above provision, it is difficult to appreciate the revolutionary submission of learned counsel for the appellant, that the evidence of the Corporate Affairs Commission (the appellant) on registration of a company in Nigeria “should be taken as the best evidence to the exclusion of any other evidence, including production of the original certificate of incorporation when proof of registration is in issue.” That is not the law today, going by the statutory provision and the decided cases. Furthermore, it would mean that the onus of proof in such a scenario is shifted from the party who asserts, on to the Corporate Affairs Commission. That would be contrary to the provision of the Evidence Act – section 131(1), and no court of law should accede to this.

Once the fundamental issue of the registration of the 2nd company by the respondent was not proved and established, there cannot arise the question of negligently or recklessly incorporating another similar company, to the appellant.

Negligence in incorporating what? In other words, to what, would the appellant be compared to? The certificate of its registration has not been produced in evidence. Everything else depends on this as the foundation and it has collapsed. The failure to so produce is fatal. This shows that the trial court did not misconceive the issue.

The respondent has already conceded that it owes a duty of care to the appellant. In fact, the respondent by section 30(1)(a) of CAMA owes a duty of care to every registered company, not to register another company –

“….by a name which is identical with that by which a company in existence is already registered, or so nearly resemble that name as to be calculated to deceive except where the company in existence is in the course of being dissolved and signifies its consent in such manner as the commission may require.”

Was this duty of care breached in respect of the appellant? Since there is no proof that this 2nd company had in fact been registered by the respondent, no breach can arise. If the certificate of incorporation had been produced, this court would have looked at it, to see whether it was the respondent that indeed incorporated it and whether the name of the 2nd company as shown in the certificate of incorporation, is identical or nearly resembles the name of the appellant. This is not now possible and so the appellant had failed to prove that the duty of care the respondent owed to it has been breached. The result is that Issues Nos. 1 and 3 are resolved against the appellant and in favour of the respondent.

ISSUE NO 2

Did the learned trial judge properly evaluate and appraise the evidence led in support of the pleadings filed by the parties?

Learned counsel for the appellant on this issue also analysed the evidence led in EMOSTRADE’s case and compared it to the evidence led in the instant appeal and submitted that the trial judge did not asses or evaluate at all, the evidence of DW1, PW1 and PW2 as well as exhibits F, G, H, I and J admitted in this case. This has resulted in miscarriage of justice – 7 UP BOTTLING COMPANY LTD v. ABIOLA & SONS (2001) 13 NWLR (Pt. 730) 472, because the fundamental duty of a trial court, is to give full and dispassionate consideration and make findings on the evidence led and it would amount to abdication of duty to fail to properly evaluate the evidence – MOGAJI v. ODOFIN (1978) 4 SC 91; OJO v. ADELEKE (2002) 8 NWLR (Pt. 763) 233 and OYEKOLA v. AJIBADE (2004) 17 NWLR (Pt. 902) 356 at 378 – 379. He urged us, on the authorities of ADO IBRAHIM & CO. LTD v. B.C.C LTD (2007) 15 NWLR (Pt. 1058) 538; SALEH v. MONGUNO (2006) 15 NWLR (Pt. 1001) 26 at 71 and CHEDI v. A.G. FEDERATION (2006) 3 NWLR (Pt. 997) 308 at 317, to evaluate the evidence led. The Reply brief did not really add something new to the submissions in the Appellant’s brief.
Learned counsel for the respondent in a reply, submitted that the evaluation of the evidence was not perverse and no miscarriage of justice had been occasioned since the exhibits tendered are insignificant and the alleged admissions, futile.
It is correct, that a trial judge has the primary duty of evaluating evidence led and ascribing probative value to such evidence, in order to arrive at a just decision. Where the trial court discharges this duty, the appellate court will not interfere – FAGBENRO v. AROBADI (2006) 7 NWLR (Pt. 978) 174. The court is to put the evidence led by the parties on an imaginary scale and weigh same to see which is heavier.
However, in the evaluation of evidence, a trial court is not expected to put every piece of evidence led, on the scale, in order to weigh same. The evidence that would be weighed, would be that which is admissible, conclusive, and importantly, that it is relevant, See MOGAJI v. ODOFIN (SUPRA).
In the instant appeal, exhibits F, G, H, I and J were tendered by the appellant, Paragraph 2.7 of the Appellant’s Reply brief states that “Exhibit H is a letter from the Corporate Affairs Commission admitting that the 2nd company was indeed registered.” By paragraph 2.11 of the Appellant’s Reply, “Certified True Copies of Documents of Incorporation of the second company obtained from the custody of the respondent,” were tendered. DW1 was also said to have made admission in evidence. It is the documentary evidence, the oral evidence and the admissions in the pleadings that the Appellant said had not been evaluated and findings made on them. Well, the law has been stated clearly earlier in this judgment. All the pieces of evidence led and the alleged admissions were to serve the purpose of proof for the appellant that the 2nd company was incorporated by the respondent. The law provides that such evidence led, fall short of what is mandatorily required to prove the incorporation. The production of certificate of incorporation is the only proof required for registration of the company. It follows therefore, that the evidence led, in terms of Exhibits F, G, H, I and J and the oral evidence of DW1, are all not relevant and conclusive, to prove the incorporation of the 2nd company by the respondent. There was therefore no point in evaluating them since even if they are accepted, they would not add any value towards the proof of the vital issue of registration of the 2nd company. The failure to evaluate them could not therefore occasion any miscarriage of justice.
Again on admission, it is clear by the EMOSTRADE’s case, that the admission of parties cannot replace the mandatory requirement of the law, that the production of the certificate of incorporation is the only relevant evidence to prove registration. So the failure to assess the alleged admission was irrelevant and no miscarriage of justice was occasioned. There is therefore nothing, in the form of relevant evidence that this court can evaluate and which will be of any significance to the outcome of the case favourable to the appellant. No injustice had been done to it. Issue No. 2 is resolved against the appellant and in favour of the respondent.
The appeal is therefore adjudged as totally lacking in merit and it fails. It is dismissed. The judgment of the trial court delivered on the 18th of May 2010, by the Federal High Court Abuja in Suit No. FHC/ABJ/CS/555/2009 is hereby affirmed.
N35,000 costs to the respondent.

AMIRU SANUSI, J.C.A.: I had the privilege of reading before now, the judgment delivered by my learned b rother Yahaya, JCA. His lordship had ably dealt with all the issues raised and canvassed by the parties and had arrived at a conclusion which is agreeable to me. I have nothing useful to add. The appeal being meritless is hereby also accordingly dismissed by me.
I abide by the consequential orders made in the lead judgment including the order on costs.

JOSEPH TINE TUR, J.C.A.: I read an advance copy of the lead judgment delivered by my learned brother Abubakar Datti Yahaya, JCA and I concur with the conclusion.

A “Corporation” is defined in Blacks Law Dictionary, 9th edition page 391 as:

“An entity (usually a business) having authority under law to act as a single person distinct from the shareholders who own it and having rights to issue stock and exist indefinitely; a group or succession of persons established in accordance with legal rules into a legal or juristic person that has a legal personality distinct from the natural persons who make it up, exists indefinitely apart from them, and has the legal powers that its constitution gives it.”

The existence of a corporate body is to be established by the production of the certificate of incorporation and not by mere admission in the pleadings or oral testimony of a witness. In the Registered Trustees of the Apostolic Church, Ilesha Area, Nigeria, West Africa vs. The Attorney General of the Mid-Western State of Nigeria & 2 Ors. (1972) 4 S.C. 150 the defendants had put the plaintiff’s to the strict proof in the pleadings to show that they are registered Trustees of the Apostolic Church, Ilesha Area, Nigeria, West Africa. The learned trial judge held that the failure to produce the Certificate of Corporation meant the corporate entity of the plaintiff had not been proved. The plaintiff proceeded to the Supreme Court where the Court held at pages 153 to 154 that:

“In paragraph 1 of the Statement of claim in respect of 1st and 2nd respondents, the Plaintiffs had claimed to be the Registered Trustees of the Apostolic Church, Ilesha Area, Nigeria, West Africa. They averred that they were registered under the Land (Perpetual Succession) Act and the registration number was given as No. 186. The 1st and 2nd respondents disputed this in their statement of Defence and put the Plaintiffs to the strict proof of the averment. The Plaintiffs failed to establish that they are Registered Trustees and therefore have no locus standi. We refer to sub sections (1) and (3) of Section 2 of the Land (Perpetual Succession) Act which read:-

“2(1) Trustees or a trustee may be appointed… by any body or association of persons established for any religious purpose and such trustees or trustee may apply, in manner hereinafter mentioned to the Commissioner for a Certificate of Registration of the trustees or trustee of such community, body or association or persons as a corporate body.”

(3) The trustees or trustee shall thereupon 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 such corporate name etc- etc (Underlining ours)

Although evidence was led as to named persons being made Trustees the certificate of incorporation was never produced. It is therefore clear that unless the Plaintiffs could comply with section 6 of the Act under consideration they have no power to sue or be liable to being sued.
Section 6 reads:-

“Certificate of Incorporation so granted shall be conclusive evidence that all the Preliminary requisitions herein contained and required in respect of such incorporation have been complied with, and the date of incorporation mentioned in such certificate shall be deemed to be the date at which incorporation has taken place.”

In view of the above provisions of the Act the Plaintiffs having failed to prove their incorporation by the production of their Certificate of Incorporation, have no power to sue the 1st and 2nd respondents. In the circumstances the Plaintiffs/Appellants’ claim against them must fail and the appeal is therefore dismissed in respect of 1st and 2nd respondent.”

Paragraphs 20-23 of the statement of claim pleaded as follows:

“20. The plaintiff avers and contends very strongly that the defendant was in a serious error and or acted recklessly or negligently by registering the A. DIKKO AND SONS NIGERIA LIMITED when it knew or ought to have known that the name is identical, similar and in fact resembles the plaintiff company name A DIKKO AND SONS LTD which was registered just 3 months before.

PARTICULARS OF ERROR/NEGLIGENCE

1. The plaintiff’s name A DIKKO AND SONS LTD and A. DIKKO AND SONS NIGERIA LIMITED are similar on all material respect.

2. The defendant did not conduct any verification nor cross checked it records (data base) of registered companies before approving the name submitted to it for registration but even if It did not but which is denied, it was not carefully nor properly done. The plaintiff company was registered on the 4/08/08. While the other company was registered on the 17/12/18.

3. The plaintiff was not in the course of being wound up or dissolved nor gave its consent to the commission before it registered the company.

4. The defendant owes a statutory duty to the plaintiff to protect it by ensuring that it does not register another company with a name so similar to it which is capable of deceiving people or giving an impression that it is that plaintiff company.

21. The plaintiff wanted to be doubly sure of where the problem came from so it caused its solicitors to apply to the commission for registration of a fresh company called “A DIKKO AND SONS NIGERIA LIMITED” and when the result of the name availability search came out, the defendant rejected the application and refused to approve it on the ground that A DIKKO AND SONS LTD which is the plaintiff company had been registered. The name availability search report is pleaded and will be relied upon at the trial.

22. The plaintiff avers that by the aforesaid negligence, error and recklessness on the part of the defendant, it registered a company in exactly the same name or at least in a name so similar to its name in all fours thereby assisting the said Mrs. Ugonna to made away with its money (cheques) in the sum of N2,697,500.00, N3,117,000.00 and N2,475,000.00 thereby suffering substantial damages…”

Relevant paragraphs of the statement of Defence reads as follows:

1. EXCEPT as hereinafter specifically admitted, the Defendant denies each and every allegation of facts in the plaintiff’s statement of claim as are specifically set out herein and traversed seriatim.

11. The Defendant vehemently denies the averments in paragraphs 20, 21, 22 and 23 of the Statement of Claim. Further, the Defendant avers that were it not for the dishonest motives and conducts of the Plaintiffs intermediary agent, Mrs. Ugonna Nwafor and staff of S.C.C. (NIGERIA) LTD and the Plaintiff’s non-vigilance/nonchalance, it would not have suffered the diversion and the financial loss complained of as a result of the registration of the second company.

12. The Defendant puts the Plaintiff to the strictest proof of the averments in paragraph 21 of the Statement of Claim, and further maintains that, assuming without conceding that A. DIKKO AND SONS NIGERIA LIMITED was registered in error or negligently, the conduct of the Defendant was in good faith, and with reasonable care, and it did not benefit from or draw, make, endorse, accept, present or give any notice of dishonoring any of the three cheques, their value nor had a hand or knowledge in their diversion.

13. In further answer to paragraphs 20, 21, 22, and 23 of the Statement of Claim, the Defendant insists that the registration of the name “DIKKO AND SONS NIGERIA LIMITED” is neither identical to “A. DIKKO AND SONS LIMITED” nor meant to deceive the good, honest and reasonable members of the public and institutions doing clean business in good faith and trading fairly within the Companied and Allied Matters Act (CAMA) 1990 rules inside or outside Nigeria.”

The general traverse put the plaintiff to the strictest proof of the averments in the statement of claim. See Mandilas & Karaberis Ltd v. Apena (1969) NMLR 199 at 201 or (1969) 1 All NLR 390 at 393; Lewis & Peat v. Akhimein (1976) 7 S.C. 157; Osafile v. Odi (1994) 2 SCNJ 1 at 14 and Omesie v. Onuaguluchi (1995) 12 SCNJ 120 at 131.

At the close and exchange of pleadings, the fact that incorporation of “A. Dikko and Sons Nig. Ltd” was meant to deceive the good, honest and reasonable members of the public and institutions doing clean business in good faith fairly within the Companies and Allied Matters Act (CAMA) 1990 in and outside Nigeria became a material issue to be determined at the hearing.
Where it is alleged for instance that two twins are identical, it means upon looking at the twins they are very much identical; they are exactly the same. In that case, the two twins have to stand side by side for them to be observed and compared to arrive at the conclusion that they are exactly identical. For example where it is alleged that votes cast at an election are false, the genuine and the falsified votes must be pleaded. See Sabiya v. Tukur (1983) 14 NSCC 559/560.

The appellant pleaded in paragraphs 20-23 of the statement of claim that the two registered companies were “identical, similar and intact resembles the plaintiff Company…” (Paragraph 20) and that the respondent “registered a Company in exactly the same name or at least in a name so similar to its name in all fours thereby assisting the said Mrs. Ugonna to made (sic) way with its money (cheques) in the sum of N2,297,500.00, N3,117,000.00 and N2,475,000.00, thereby suffering substantial damages” (Paragraph 22) of the statement of claim.

The appellant had the onus of tendering the two certificates. Learned counsel to the appellant made heavy weather of the Supreme Court decision in ACB Plc & Anor v. Emostrade Ltd. (2002) 8 NWLR (Pt. 770) 501 (also reported in (2002) 10 NSCQR 22) to argue that the decision was wrongly applied by the learned trial judge in the given circumstances. African Continental Bank Plc v. Emostrade Limited (2002) 10 NSCQR also involved a breach of contract. Paragraph 1 of the amended statement of claim averred that the plaintiff was a limited liability Company incorporated under the laws of Nigeria. This averment was specifically denied and challenged in paragraph two of the amended statement of defence. The plaintiff did not establish her corporate personality to sue in that the certificate of incorporation was not tendered. The learned trial judge however observed that the plaintiff did not need to prove her legal personality because same had been admitted by the defendant in some paragraphs of the statement of defence. The trial judge gave judgment in favour of the plaintiff in the sum of N2,500.000.00. The Court of Appeal in a split decision dismissed the appeal. The Supreme Court in upturning the judgment held at pages 32 paragraph “D” to page 33 paragraphs “A” – “H” as follows:

“Even from the speculation made by the learned Justice, would it not have been a more positive approach to tender the certificate of incorporation at the trial although not lodged with the first appellant? I think so since the respondent pleased that it was incorporated as a limited liability company and the appellants categorically denied this. The certificate should have been produced by the respondent rather than what looks like the pranks played about its status because it is only by that certificate of incorporation its legal personality can be proved in the circumstances. That is firmly established by the authorities of this court. In his dissenting judgment, Salami, J.C.A. made it quite clear that there was the need for the plaintiff to produce the certificate of incorporation if it was duly incorporated as a limited liability company and that nothing else would suffice. The learned Justice was absolutely right.
In the Registered Trustees of Apostolic Church v. A.G. Mid-Western State (1972) NSCC (Vol. 7) 247, the plaintiffs averred in their statement of claim that the Apostolic Church was incorporated under the Land (Perpetual Succession) Act. The defendants in their statement of defence denied this and put them to strict proof. This court per Sowemimo Ag. JSC said at page 250:
“Although evidence was led as to named persons being made Trustees, the Certificate of Incorporation was never produced with section 6 of the Act under consideration they have no power to sue or be liable to being sued”.

There was some evidence of admission about the status of the Apostolic Church. But at page 252, this court observed further:

“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 partes notwithstanding.”

Similarly in J. K. Randle v. Kwara Breweries Ltd. (1986) 6 SC 1, the plaintiff averred that the defendant company was incorporated under the Companies Act 1968, which averment was denied by the company. The Plaintiff at the trial court served a notice on the defendant to produce the certificate of incorporation but the defendant did not produce it. The plaintiff himself did not lead secondary evidence of the certificate (A public document) in order to prove the incorporation. Without such proof, the juristic personality of the defendant was not established. It was unanimously held by this court that the failure to produce the certificate of incorporation of the defendant was fatal to the plaintiff’s case. At page 7, Uwais, JSC (NOW CJN) pointedly observed as follows:

“The appellant sued the respondent as a company incorporated under the Companies Act, 1968. He failed to prove the incorporation by the production of the certificate of incorporation. As the averment in the statement of claim that the defendant was so incorporated was categorically denied by the respondent in its statement of defence the failure to prove the incorporation was fatal to the appellant’s case.”

It follows that in the present case, the respondent has failed to prove that it has a juristic personality and that it can sue (and be sued). That is the same as saying that it does not exist in the eye of the law.”

It is fatal for the appellant not to have tendered the Certificate of Incorporation of A. Dikko and Sons Ltd. in the Court below, to establish her corporate personality. The suit in the court below was rightly dismissed. I affirm the dismissal by the learned trial judge and abide by whatever orders my learned colleague has made in the lead judgment.

Appearances

Adekola Mustapha, with A. A. Mohammed, Abubakar Shuabu and Oluwaseyi AdeniranFor Appellant

AND

A. B. MohammedFor Respondent