COMPACT MANIFOLD AND ENERGY SERVICES LIMITED v.ARCO PIPELINE SOLUTIONS LIMITED
(2018)LCN/11841(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2018
CA/L/1043/2015
RATIO
COURT AND PROCEUDURE: THE ESSENCE OF PROCEEDINGS FOR SUMMARY JUDGMENT
“This Court in UMECHE Vs. CITIBANK NIGERIA LTD & ANOR (2013) LPELR-20722 (CA) Pg. 17, Paras. D – F, held that: “…the essence of proceedings for summary judgment under Order 11…is to give judgment for admitted claims or claims that are not met with a viable or arguable defence…” The purport of the provisions of Order 11 Rule 5 (1) & (2) of the High Court of Lagos State Civil Procedure Rules, 2012, is that in deciding an application for Summary Judgment, the learned trial Judge has unfettered discretion to determine whether it appears to him that the Defendant has a good defence or that the Defendant has no good defence. At this stage, in determining whether or not the Defence of the Defendant is “good”, the trial Court, is expected to only grant the application for summary judgment where assuming all the facts in favour of the defendant, they do not amount to a defence in law. See: MACAULAY vs. NAL MERCHANT BANK LTD (1990) LPELR-1801 (SC).” PER TIJJANI ABUBAKAR, J.C.A.
JUSTICES:
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
COMPACT MANIFOLD AND ENERGY SERVICES LIMITED – Appellant(s)
AND
ARCO PIPELINE SOLUTIONS LIMITED – Respondent(s)
TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Ruling of the Lagos State High Court, sitting in the Lagos Division, delivered by A. O. Williams J. on the 3rd day of July, 2015 in Suit No: LF/ADR/194/2014 which is contained at pages 335 – 340 of the Records of Appeal wherein the Respondent’s Application for Final/Summary Judgment was granted and its claims against the Appellant as per the Writ of Summons was granted on the ground that the Defendant had no defense to the action.
Aggrieved by the decision of the Lower Court, the Appellant filed the Notice of Appeal on the 15th day of July, 2016 premised on four (4) grounds as contained at pages 341- 345 of the Records of Appeal. The Appellant’s Brief of Argument was filed by Lovely Iyke Erhabor Esq on the 11th day of November, 2015. The Respondent’s Brief on the other hand was filed by Cajethan Ibeabuchi Duru Esq. on the 30th day of December, 2016 but deemed as properly filed and served on the 3rd of October, 2017. No Reply Brief was filed. In the brief of argument filed on behalf of the
Appellant, learned counsel distilled 2 (two) issues for determination, the issues are as set out below:
1. Whether the Court was right when it proceeded to enter summary judgment without first resolving the issue raised by the defence on the corporate entity of the claimant and the material documents not pleaded. ALTERNATIVELY, whether on the pleadings and frontloaded document as constituted, no reasonable defence was disclosed in the statement of defence upon which the Court disallowed the Defendant on the merit.
2. Whether the Lower Court was right to have relied on the new document attached to the counter affidavit not attached or frontloaded with the pleadings to enter summary judgment for the claimant against the clear provisions of the rules of the High Court.
The Respondent also crafted corresponding 2 (two) issues for determination as follows:
1. Whether the additional documents filed by the Respondents were properly pleaded to entitle the lower Court to rely on same.
2. Whether the onus is not on the Appellant to prove that the Respondent is not a legal entity as to maintain this action.
SUBMISSIONS OF COUNSEL FOR THE APPELLANT
ISSUE ONE
Learned counsel for the Appellants referred to Order 3 Rule 2 (1)(d) of the Rules of the High Court of Lagos State to submit that the Respondent was legally enjoined to attach to its Writ of Summons all the documents to be relied on in proof of its claims but the Respondent failed to do so. Counsel argued that the Statement of Claim filed by the Respondent was not filed along with the documents relied on by the Lower Court to enter summary judgment against the Appellants. Counsel stated that when the Respondent sought to tender the documents subsequently, the Appellant’s counsel objected to their admissibility and they were withdrawn and struck out by the trial Court. Learned counsel referred to SPASCO VEHICLE & PLANT HIRE Vs. ALRAINE [1995] 32 LRCN 479 at 492 to submit that any evidence before the Court not supported by pleadings goes to no issue and that the Further and Better Affidavit with the attached documents relied on by the Lower Court to enter judgment against the Appellant goes to no issue.
Counsel submitted that the Lower Court relied on the Respondent’s Reply to the Appellant’s Amended Statement of Defence as the Counter-Affidavit and documents attached thereto when no amendment was made to the Statement of Claim upon which a reasonable cause of action should have been disclosed.
Counsel referred to pages 159-207 and 208-273 of the Records of Appeal to contend that there were triable issues in the Respondent’s Reply to the Appellant’s Amended Statement of Defence and in the Further and Better Affidavit in Support of the Respondent’s Motion for Summary Judgment to which the Lower Court ought to have allowed a defence to the action rather than hurriedly proceeding to enter summary judgment for the Respondent.
Learned counsel submitted that the Lower Court by its action shielded the Respondent from proving its case by evidence and cross-examination thereby occasioning miscarriage of justice. Counsel argued that having struck out the documents which the Respondent attached to its Reply to the Appellant’s Amended Statement of Defence, the Lower Court ought not to have allowed the Respondents bring in the said documents which were not part of the documents that were frontloaded and filed with the Writ of Summons and Statement of Claim. Learned counsel contended that a Reply is not an Originating Process and urged this Court to resolve this issue in favor of the Appellant.
ISSUE TWO
With respect to the second issue for determination, learned counsel submitted that in paragraph 1 of the Statement of Claim, the Respondent stated that it is a limited liability company incorporated under the Companies and Allied Matters Act, while the Appellant in the Amended Statement of Defence denied this fact and stated that the Respondent is not an incorporated legal entity. Counsel referred to pages 154 & 213 of the Records of Appeal to submit further that in the Reply to the Appellant’s Amended Statement of Defence, the Respondent attached an uncertified photocopy of its Certificate of Incorporation. Learned counsel submitted that the Lower Court’s attention was drawn to the said photocopy of the Certificate of Incorporation which being a public document ought to have been certified as required by the Evidence Act and that since it was not certified, it should not be relied on as evidence of due Registration of the Respondent as a corporate legal entity that could sue and be sued.
Learned counsel referred to GOODWILL & TRUST INV. LTD. Vs. WITT & BUSH LTD [2011] 3-4 MJSC 1, Pg. 19-20, Para. C – B to submit that the said document was not tendered as secondary evidence. Counsel also submitted that by virtue of Section 36(1) of the Companies and Allied Matters Act, 1990, the Certificate of Incorporation is the prima facie evidence of registration; and that by Section 634(1) of the CAMA, any person on payment of the prescribed fees is allowed to inspect documents or obtain copies or extracts of documents held by the Commission which include the Certificate of Incorporation. Learned counsel argued that in the instant case the photocopy of the Certificate of Incorporation tendered by the Respondent is not certified by the Corporate Affairs Commission and therefore inadmissible and should not have been relied on or given any probative value whatsoever by the Lower Court.
Learned counsel contended that since the Appellant had denied the existence or registration of the Respondent, the legal existence of the Respondent had been put in issue and by virtue of Sections 109-112 of the Evidence Act, only a certified copy of its Certificate of Incorporation will serve as a legally sustainable and valid answer. Counsel submitted that this issue constitutes a legally triable issue which the learned trial Judge ought to have ordered a trial for the case to be heard and determined on the merit. Counsel referred to MACGREGOR ASSOCIATES Vs. N.M.B. LTD [1996] 35 LRCN 197 at 210, Paras. G – H to submit that there were triable issues between the parties and that the Lower Court relied on the same set of documents it had earlier struck out to enter summary judgment against the Appellant. Learned counsel urged this Court to resolve this issue in favour of the Appellant, allow this appeal; set aside the judgment of the Lower Court, and order a trial of the case on its merit.
SUBMISSION OF COUNSEL FOR THE RESPONDENT
ISSUE ONE
The learned counsel for the Respondent submitted that the document attached to the Respondent’s Further and Better Affidavit and Reply to Appellant’s Amended Statement of Defence were duly and properly pleaded and that the Lower Court was right to have relied on same as forming part of the pleadings before the Court. Counsel referred to ODGERS ON PLEADINGS AND PRACTICE by Glies Frangs Harwood, 20th Ed., 2008 Pg. 11 and CIVIL PROCEDURE IN NIGERIA by Fidelis Nwadialo, 2nd Ed., University of Lagos Press, Pg. 302 to argue that all statements in a Further and Better Affidavit and Reply to Appellant’s Amended Statement of Defence are collectively known as pleadings. Learned counsel referred to page 129 of the Records of Appeal to submit that what was struck out by the Lower Court were the bundle of documents that were sought to be brought in pursuant to the Respondent’s Motion on Notice dated 19th June, 2014 and that these documents were stuck out because they were not pleaded, not that they were held to be inadmissible.
Learned counsel submitted that the Further and Better Affidavit and documents attached thereto were in reaction to the new issues raised in the Appellant’s Amended Statement of Defence and were never intended to shore up the Respondent’s Application for Summary Judgment. Counsel submitted that the defence put forward by the Appellants in the Amended Statement of Defence at pages 156 – 158 of the Records of Appeal were based on facts which were addressed by the facts contained in the Respondent’s Further and Better Affidavit at pages 208-212 of the Records of Appeal. Learned counsel referred to ONYEKA ONWU Vs. EKWUBIRI & ORS [1966] 1 All NLR to further submit that the Respondent was entitled to lead evidence on any issue raised in the Appellant’s pleadings including an Amended Statement of Defence and that a party is not forever precluded from putting in additional documents in appropriate cases.
Learned counsel submitted that where there is alleged failure to comply with Order 3 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 2012, the failure shall be deemed as an irregularity. Counsel further referred to Order 5 Rule 1(2) to submit that it is too late in the day for the Appellant to complain about non-compliance with Order 3 Rule 2 having failed to take advantage of the provisions of Order 5 Rule 2(1). Learned counsel referred to pages 336, 337 and 339 of the Records of Appeal to submit that the documentary evidence attached to the Further and Better Affidavit were duly and properly pleaded and were never struck out as erroneously contended by the Appellant; counsel challenged the Appellant to refer to any page in the Records of Appeal to prove that the documentary evidence attached to either the Further and Better Affidavit and/or the Reply to Appellant’s Amended Statement of Defence were struck out by the Lower Court.
Learned counsel further referred to pages 49 and 327-329 of the Records of Appeal to submit that once the allegation in the pleadings show real controversy that is capable of leading to the grant of a relief, the pleading cannot rightly be said to disclose no reasonable cause of action. Counsel submitted that the Lower Court held that the claimant in this suit by its pleadings has shown a controversy to be resolved and consequently dismissed the Appellant’s Notice of Preliminary Objection. Learned counsel further referred to page 77 of the Records of Appeal to submit that the Appellant who paid the sum of N15,000,000.00 on the 7th of August, 2013 cannot be heard to deny knowledge of the Respondent. Counsel urged this Court to discountenance the submissions of the Appellants and resolve this issue in favour of the Respondent.
ISSUE TWO
On the second issue, learned counsel for the Respondent referred to Section 131(1) of the Evidence Act, 2011 to submit that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts. Counsel submitted that the Respondent was not expected to file its original Certificate of Incorporation and that it is for the Appellant to apply for a copy to satisfy itself that the Respondent is not a legal entity. Counsel submitted that the onus is on the Appellant to prove that the Respondent is not a legal entity and it does not matter whether or not the Respondent filed a Certificate of Incorporation.
Learned counsel submitted that the objection that the Respondent is not a legal entity and that the Respondent did obtain authorization of its Board are not genuine defence but were intended to prevent the Appellant from meeting its obligation to the Respondent. Counsel referred to pages 338-340 of the Records of Appeal to submit that the Appellant does not have any defence on the basis of which trial should be ordered. Learned counsel urged this Court to discountenance the submissions of the Appellant that trial ought to be ordered in this suit dismiss the appeal in its entirety; and affirm the Ruling of the Lower Court.
RESOLUTION
The Appellant’s issue No. 1 is “Whether the Court was right when it proceeded to enter summary judgment without first resolving the issue raised by the defence on the cooperate entity of the claimant and the material documents not pleaded. ALTERNATIVELY, whether on the pleadings and frontloaded document as constituted, no reasonable defence was disclosed in the statement of defence upon which the Court disallowed the Defendant on the merit.” and the issue No. 2 is “Whether the Lower Court was right to have relied on the new document attached to the counter affidavit not attached or frontloaded with the pleadings to enter summary judgment for the claimant against the clear provisions of the rules of the High Court.” From the submissions of the Appellant and the Respondent on the issues submitted for determination, I am of the view that this appeal can be effectively determined between both parties on the issues nominated by the Appellant.
The contention of the Appellant on the first issue is that the Statement of Claim filed by the Respondent was not filed along with the documents relied upon by the Lower Court to enter summary judgment against the Appellants; that when the Respondent sought to tender the documents subsequently, the Appellant’s counsel objected to their admissibility and they were withdrawn and struck out by the trial Court and that having struck out the documents which the Respondent attached to its Reply to the Appellant’s Amended Statement of Defence, the Lower Court ought not to have allowed the Respondents bring in the said documents which were not part of the documents that were frontloaded and filed with the Writ of Summons and Statement of Claim.
Appellant’s further contention on this issue is that the Further and Better Affidavit together with the attached documents relied on by the Lower Court to enter judgment against the Appellant go to no issue and that there were triable issues in the Respondent’s Reply to the Appellant’s Amended Statement of Defence, and in the Further and Better Affidavit in Support of the Respondent’s Motion for Summary Judgment which the Lower Court ought to have allowed a defence to the action rather than hurriedly proceeding to enter summary judgment. In sum therefore the matter ought to have gone to trial.
The Respondent contended that the defence put forward by the Appellant in the Amended Statement of Defence at pages 155 – 158 of the Records of Appeal were based on facts which were addressed by the facts contained in the Respondent’s Further and Better Affidavit at pages 208-212 of the Records of Appeal; that the Further and Better Affidavit and documents attached thereto were in reaction to the new issues raised in the Appellant’s Amended Statement of Defence; that the Respondent was entitled to lead evidence on any issue raised in the Appellant’s pleadings including an Amended Statement of Defence and that a party is not forever precluded from putting in additional documents in appropriate cases.
The Appellant further submitted that what was struck out by the Lower Court were the bundle of documents that were sought to be brought in pursuant to the Respondent’s Motion on Notice dated 19th June, 2014 and that these documents were stuck out because they were not pleaded and were inadmissible; that once the allegation in the pleadings show real controversy that is capable of leading to the grant of a relief sought, the pleading cannot rightly be said to disclose no reasonable cause of action; and that the Lower Court found that the Respondent had by its pleadings shown a controversy to be resolved and consequently dismissed the Appellant’s Notice of Preliminary Objection. The Respondent also stated that where there is alleged failure to comply with Order 3 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 2012, the failure shall be deemed as an irregularity and that it is too late in the day for the Appellant to complain about noncompliance with Order 3 Rule 2 having failed to take advantage of the provisions of Order 5 Rule 2(1).
From the records on the 8th of April, 2014, the Respondent filed this Suit against the Appellant vide Writ of summons, Statement of Claim and accompanying processes found at pages 1-19 of the Records of Appeal (herein after referred to as The Record). The Respondent equally filed a Motion on Notice dated 8th of April, 2014 for an order entering final judgment against the Appellant on the ground that the Appellant had no defence whatsoever to the claims in the suit; this is contained at pages 20-21 of the records. In support of the Application for final/summary judgment was the Affidavit of one Ifeanyi Amali deposed to on the 8th of April, 2014. The said Affidavit and the documents attached are found at pages 22-33 of the records. The Written Address in support of the Application filed on the same 8th of April, 2014 is also contained at pages 34-35 of the records.
In response to the Respondent’s processes, the Appellant filed a Notice of Preliminary Objection urging the Lower Court to strike out the entire suit. The Notice of Preliminary Objection and the Written Address in support of same were filed on the 19th day of May, 2014 found at pages 49-54 of the records. On the same 19th of May, 2014, the Appellant also filed a Counter-Affidavit to the Respondent’s Motion for Final Judgment; A Written Address was filed in support of the Appellant’s Counter-Affidavit to the Respondent’s Motion for Final Judgment and both are found at pages 55-60 of the records. On the 25th of June, 2014, the Respondent filed a Written Submission in opposition to the Notice of Preliminary Objection contained at pages 124-128 of the records and filed a Reply to the Appellant’s Counter-Affidavit to its Motion for Final Judgment contained at pages 120-123 of The Records.
The Respondent filed Further and Better Affidavit in Support of its Motion for Final Judgment on the 24th of March, 2015; the Affidavit and the attached Exhibits are contained at pages 208-267 of the records; while the Written Submission in support of the Further and Better Affidavit filed on the same 24th of March, 2015 is contained at pages 268-272 of the records. The Amended Statement of Defence was filed by the Appellant on the 26th of March, 2015 and contained at pages 274-276 of the records. The Appellant did not amend the Reply filed on the 24th of March, 2015 to the Appellant’s earlier Amended Statement of Defence which was filed on the 10th of February, 2015.
The Notice of Preliminary Objection was heard on the 5th day of February, 2015 and Ruling was delivered on the 6th day of March, 2015 dismissing Appellant’s Notice of preliminary Objection. See: pages 322- 331 of the records. On the 7th day of May, 2015, the Respondent moved its Motion for Summary Judgment and Ruling was delivered on the 3rd day of July, 2015 wherein the Court entered Judgment in favour of the Respondent. See pages 332-340 of the records. The Ruling delivered on the 3rd day of July, 2015 is the subject matter of this appeal. It is important to state that the Ruling of the 6th day of March, 2015 wherein the Appellant’s Notice of Preliminary Objection was dismissed is not a subject matter of appeal in this Court.
From the foregoing therefore, I am of the opinion that narrow issue to resolve in this appeal is: “whether the Appellant’s Amended Statement of Defence discloses a good defence for which the trial Court would have ordered trial.” The processes to be considered in answering this question are; the Writ of Summons, the Statement of Claim, accompanying processes and the Motion on Notice for Final Judgment all dated 8th of April, 2014, the Affidavit of Ifeanyi Amali and the documents attached as well as the Written Address in support of the Application filed on the same 8th of April, 2014; the Reply to the Appellant’s Counter-Affidavit to the Motion for Final Judgment; the Further and Better Affidavit in Support of the Motion for Final Judgment, the Affidavit and the attached Exhibits, and the Written Submission in support of the Further and Better Affidavit filed on the 24th of March, 2015; and the Reply filed on the 24th of March, 2015 to the Appellant’s earlier Amended Statement of Defence which was filed on the 10th of February, 2015.
At page 339 of The Records of appeal, the learned trial Judge found as follows:
The claimant has made out a prima facie case by the affidavit evidence it furnished. It has established that it had a relationship with the defendant whereby it provided equipment and services to the defendant as requested, for which the defendant has not paid.
In its amended pleadings, the defendant has denied the legal capacity of the claimant and contends that the consent of its members to the institution of this suit was not obtained. It also denied the contract and the debt as well as the demands alleged by the claimant. So the defence proffered is based on facts. The claimants addressed these facts in its further affidavit. It has deposed that it was incorporated on 24/09/03 and stated its incorporation number. It also tendered its board resolution that authorized the institution of this suit. It also tendered documents that establish the fact that the defendant requested for its services. I agree with the claimant that the defendant has no real defence to this suit. The defence presented is a sham and aimed at delaying this suit and postponing the fulfillment of its obligation to the claimant.”
In determining an Application for Summary Judgment, the Applicable rule which the Lower Court at page 338 of The Records rightly referred to is Order 11 Rule 5 (1) & (2) of the High Court of Lagos State Civil Procedure Rules, 2012 which provides that:
1. Where it appears to a judge that the Defendant has a good defence and ought to be permitted to defend the claim he may be granted leave to defend the claim.
2. Where it appears to a judge that the Defendant has no good defence the judge may thereupon enter judgment for a Claimant.”
(Underlined by me)
This Court in UMECHE Vs. CITIBANK NIGERIA LTD & ANOR (2013) LPELR-20722 (CA) Pg. 17, Paras. D – F, held that: “…the essence of proceedings for summary judgment under Order 11…is to give judgment for admitted claims or claims that are not met with a viable or arguable defence…” The purport of the provisions of Order 11 Rule 5 (1) & (2) of the High Court of Lagos State Civil Procedure Rules, 2012, is that in deciding an application for Summary Judgment, the learned trial Judge has unfettered discretion to determine whether it appears to him that the Defendant has a good defence or that the Defendant has no good defence. At this stage, in determining whether or not the Defence of the Defendant is “good”, the trial Court, is expected to only grant the application for summary judgment where assuming all the facts in favour of the defendant, they do not amount to a defence in law. See: MACAULAY vs. NAL MERCHANT BANK LTD (1990) LPELR-1801 (SC).
In the instant case, from the pleadings of the Appellant contesting the Application for summary judgment, instead of stating the particulars of defence it has to the Respondent’s claims, the Appellant denied that it had any contract with the Respondent or that it owed the Respondent at all and further in the Amended Statement of Defence at pages 274-276 of the records challenged the legal entity of the Respondent and its authority to institute the action. In UBA & ANOR Vs. JARGABA [2007] 11 NWLR (Pt.1045) 247; LPELR-3399 (SC) Pg.29, Paras. A- E the Supreme Court of Nigeria held as follows:
“…the defendant’s affidavit must condescend upon particulars and should, as far as possible, deal specifically with the plaintiffs claim and affidavit and state clearly and concisely what the defense is and what facts and documents are relied on to support it. The affidavit must of necessity disclose facts which will, at least, throw some doubt on the case of the plaintiff. A mere denial of the plaintiff’s claim and affidavit is devoid of any evidential value and as such would not have disclosed any defense which will, of least, throw some doubt plaintiffs claim… A defendant’s affidavit…raises a triable issue where the affidavit is such that the plaintiff will be required to explain certain matters with regards to his claim or where the affidavit throws a doubt on the plaintiff’s claim.”
See also DIGITAL SECURITIES TECHNOLOGY LTD & ANOR Vs. FAUSTINUS ANDI, ESQ (2017) LPELR-43446 (CA) Pg. 15-17, Paras. CB where this Court held that “…what the trial Court must do when faced with any response to an application for summary judgment is to look at the proposed defence and determine whether the reliefs sought by the plaintiff would still succeed if the averments in the defence are found to be true, provided full particulars of the averments are shown for instance with the documents and not a mere denial of the claims of the plaintiffs…” and in OBITUDE Vs. ONYESOM COMMUNITY BANK LTD (2014) LPELR-22693 (SC) Pg.50-51, Paras. C- D the Supreme Court per KEKERE-EKUN, JSC held that: “…Where the defence is that the defendant is not indebted to the plaintiff, state the grounds on which the defendant relies as showing that he is not indebted. A mere general denial that the defendant is not indebted will not suffice…”
This Court will not normally interfere with the exercise of discretion by the Lower Court unless it is shown that the trial Court acted against the law or that a miscarriage of justice has occurred as a result of the discretion exercised by the trial Court. In the instant case, it cannot be said that the learned trial Judge’s exercise of discretion has occasioned any miscarriage of justice. See ANYAH Vs. AFRICAN NEWSPAPER OF NIG. LTD. [1992] NWLR (Pt.247) pg. 319; (1992) LPELR-511 (SC) Pg.20-21, Paras. G – A where the Supreme Court held that: It is not in all cases that an Appeal Court will interfere with the exercise of discretion by a trial judge, simply because it did not favour one of the parties litigating before him. The Court will not interfere with the exercise of discretion in the absence of proof that it was wrongly exercised. You cannot lay down hard and fast rules as to the exercise of judicial discretion by a Court, for the moment you do that, the discretion is fettered.”
See: also OLATUNBOSUN Vs. TEXACO NIG. PLC (2012) LPELR-7805 (SC) Pg. 18, Paras. C – D where the Supreme Court held that “…an appellate Court like ours will not interfere with the exercise of discretion of the Court below merely because this Court would have acted differently. …this Court will only interfere where the discretion exercised is manifestly wrong, arbitrary, reckless and injudicious.” Also, in FALEYE & ORS Vs. DADA & ORS (2016) LPELR-40297 (SC) Pg.33-34, Paras. E – C, also the Supreme Court per MUHAMMAD JSC held as follows “…This Court has stated it times without number that it is none of its functions or indeed that of an appellate Court to substitute its own views of the evidence for those of the trial Court that is better placed to deal with those matters. The appellate High Court could only have interfered with findings of facts of the trial Customary Court when the findings are perverse and/or consequent upon improper exercise of judicial discretion further resulting in miscarriage of justice…”
It will be improper to tinker with the exercise of discretion by the Lower Court in the instant case having regard to the materials relied on by the Lower Court to arrive at a decision, this issue is therefore resolved against the Appellant in favour of the Respondent.
The Appellant contended on issue number two that the Respondent is not an incorporated legal entity; that in the Reply to the Appellant’s Amended Statement of Defence, the Respondent attached an uncertified photocopy of its Certificate of Incorporation; that the said photocopy of the Certificate of Incorporation being a public document ought to have been certified as prescribed by the Evidence Act and that since it was not so certified, it must not be relied on as evidence of incorporation of the Respondent as a corporate legal entity who could sue and be sued.
The Appellant further contended that since the Appellant had denied the existence or registration of the Respondent, the legal existence of the Respondent had been put in issue and by virtue of Sections 109-112 of the Evidence Act, only a certified copy of its Certificate of Incorporation will suffice as a legally sustainable and valid answer; and that this issue constitutes a legally triable issue which the learned trial Judge ought to have ordered a trial of the case on its merit.
On its part, the Respondent’s contention is that by the provisions of Section 131(1) of the Evidence Act, 2011 to submit that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts; it is for the Appellant to apply for a copy of the Certificate of Incorporation to satisfy itself that the Respondent is not a legal entity; that the onus is on the Appellant to prove that the Respondent is not a legal entity and it does not matter whether or not the Respondent filed a Certificate of Incorporation. The Respondent submitted that the objection that the Respondent is not a legal entity and that the Respondent did not obtain authorization of its Board are not genuine defense but were intended to prevent the Appellant from meeting its obligation to the Respondent and that the Appellant does not have any defense on the basis for which trial should be ordered.
The Appellant at paragraph 2 of its Amended Statement of Defense denied that the Appellant is a limited liability Company as averred in paragraph 1 of the Respondent’s Statement of claim and on argued that the consent of the Board of directors of the Appellant was not obtained before instituting this suit. Where the legal status of a company is denied, it is deemed to have been made an issue and the Claimant has the onus to prove that it is a registered company. A plaintiff to an action must, be competent to institute an action, and the Supreme Court also held that the true status of the Plaintiff or the Defendant is more likely to be known during trial when the status of either party is challenged by the opposing party See BANK OF BARODA Vs. IYALABANI CO. LTD [2002] 13 NWLR (Pt.785) 551; [2002] LPELR-743 (SC) Pg. 19-20, Paras. E – G. The Supreme Court of Nigeria held as follows:
“While it may be open to defendant to challenge the legal capacity of a plaintiff to sue, the Plaintiff should not be deprived, on the basis of a mere assumption, of the opportunity of proving his or its capacity to such. The law has been aptly put in Aguda Practice & Procedure etc. 1980 Edn, At para. 10-04 as follows:
a. A plaintiff to an action must be competent to institute such an action and if his competency is challenged then the onus of proving that he has legal capacity to institute the action lies on him..
See: also REPTICO S.A. GENEVA Vs. AFRIBANK NIG. PLC (2013) LPELR-20662 (SC) Pg. 44-45, Paras. E – B and TSOKWA & ORS Vs. MIJINYAWA & ORS [2014] LPELR-24200 (CA) Pg.42-44, Paras. F – C.
In the instant case, the Respondent filed a copy of its Certificate of Incorporation and the Appellant objected to same on the ground that it was not certified, the law is settled that a certificate of incorporation qualifies as a public document and therefore, only the original or a certified true copy of the photocopy thereof will be admissible in evidence. See Sections 85-90 & 102-106 of the Evidence Act, 2011 and the decision on this Court in SOLID UNIT NIG. LTD & ANOR Vs. GEOTESS NIG. LTD (2013) LPELR-20724 (CA) Pg.40-43, Paras. D – G. The legal status of the Respondent was made an issue at the Court below, this in my view goes down to the jurisdiction of the Court, if the Respondent is found to be incapable of instituting an action or being sued, then, the jurisdiction of the Court would not have been properly activated.
See REPTICO S.A. GENEVA Vs. AFRIBANK NIG. PLC (Supra) at Pg. 40-41, Paras. F – D; THE REGISTERED TRUSTEES OF AIRLINE OPERATORS OF NIGERIA Vs. N.A.M.A. (2014) LPELR-22372 (SC) Pg. 18-19, Paras. E – B and NJOKU Vs. JONATHAN & ORS (2015) LPELR-24496 (CA) Pg. 39-44, Paras. A- B where this Court held that:
“The phrase “locus standi” or “standing” refers to the right of a party to appear and be heard on the question before the Court. It denotes legal capacity to institute legal proceedings in a Court of law. In other words, the right to or competence to institute proceedings in Court for redress or assertion of right enforceable at law. It is the bulwark or the framework which entitles a litigant to bring another party before the altar of adjudication… The concept focuses not on the merit of the case, but on the merit of the person seeking to approach the Court”
In sum therefore this issue would obviously require further inquiry having regard to the facts and the settled position of the law, the Lower Court must proceed to conduct further inquiry into the capacity of the Plaintiff to commence the action. Again, the issue raised touching on the capacity of the Respondent is not an issue that may be resolved on the strength of the materials already before the Court. I think the Appellant raised a triable issue deserving of consideration in the circumstance.
On this ground therefore, the trial Court ought to have proceeded on trial and give the Respondent the opportunity to prove its juristic personality and that it has the capacity to institute the action and invoke the jurisdiction of the Court since that has been made an issue. The Court cannot brush aside the issue with a wave of the hand as it may constitute a valid defense.
In the circumstance therefore, this issue is resolved in favour of the Appellant against the Respondent. On the whole, Appellants appeal is therefore partly meritorious and is allowed in part. This issue is without doubt, a triable one. Nevertheless, having found that the Appellant has no defence to the substantive claim of the Respondent, and with the only triable issue, being in relation to the Respondent’s capacity, I am of the firm view that going by the provisions of Order 11 Rule 5(3) of the High Court of Lagos State (Civil Procedures) Rules, 2012, the trial Court ought to have directed that the issue as to the Respondent’s legal capacity should be left for trial.
In the circumstance therefore this issue is resolved in favour of the Appellant against the Respondent. On the whole, Appellants appeal is therefore partly meritorious and is allowed in part. The Ruling of the Lower Court delivered on the 3rd day of July 2015, by Williams J. in Suit No: LF/ADR/194/2014 is set aside in part.
In consequence therefore, it is hereby ordered that the suit LF/ADR/L94/2014 be remitted to the Hon Chief Judge of the High Court of Lagos State to be assigned to another Judge to be heard and determined specifically and solely on the issue relating the Respondent’s legal capacity.
It is also ordered that the suit be granted expedited hearing.
Parties shall bear their respective costs.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I entirely agree with, and do not desire to add to, the reasoning and conclusion in the judgment of my learned brother, Tijjani Abubakar, JCA, which has just been delivered.
I adopt the judgment as mine and abide by the consequential orders made therein.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I am in total agreement with the judgment just delivered by my learned brother, TIJJANI ABUBAKAR, JCA, which judgment I had the privilege of reading in draft.
This appeal raises the issue of whether the Lower Court rightly entered summary judgment in favour of the Respondent.
The purpose of a summary judgment procedure is to obtain quick judgment and prevent a sham defence from causing a protracted and ultimately frivolous litigation. What the Lower Court looks at are facts which will raise a triable issue. See the cases of AFRIBANK NIG PLC v MEDICAL CONSULTANT SERVICES LTD & ANOR (2011) LPELR – 3636 (CA); UNIVERSITY OF BENIN v. KRAUS THOMPSON ORGANISATION LTD & ANOR (2007) 14 NWLR (PT 1055) 441 (CA).
In this appeal, the legal status of the Respondent was made an issue at the Lower Court and I am of the firm view that the issue is one which requires further inquiry by the Lower Court. In the event that the Respondent is found to be incapable of instituting the action, then the action will be incompetent.
Therefore, this issue requires the Respondent to prove its juristic personality and whether or not it has the capacity to institute the action. This therefore raises a triable issue which constitute a valid defence and is deserving of further consideration by the Lower Court. The summary judgment cannot therefore stand.
On the whole, the appeal has merit and it is hereby allowed. The Ruling of the Lower Court is accordingly set aside. I also abide by all the consequential orders made in the lead judgment.
Appearances:
A. O. Imoisili For Appellant(s)
C. I. Duru For Respondent(s)
