REGISTERED TRUSTEES OF INTERNATIONAL ISLAMIC RELIEF ORGANISATION, KADUNA v. KEYSTONE BANK PLC & ORS
(2019)LCN/12690(CA)
(2018) LPELR-45089(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 4th day of July, 2018
CA/K/240/2012
RATIO
DEFENCE : STATEMENT OF DEFENCE
“…before a Court decides whether or not there is an admission in the statement of defence in respect of an averment in a statement of claim, it must consider the entire pleadings of the parties as a whole, since, it is the totality of the pleadings, be it the statement of claim or the statement of defence, that states the case of the party, it will be unjust to invoke only a few paragraphs of either pleadings to come to a conclusion. See the cases of Oshodi v. Eyifunmi (2000) 7 SC (Pt. 11) 145, Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 and Ngige v. Obi (2006) 14 NWR (Pt. 999) 1.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
EVIDENCE: WHETHER THE BEST EVIDENCE FOR INCORPORATION IS THE CERTIFICATE OF INCORPORATION
“I agree with him that the best evidence of incorporation is the production of the Certificate of incorporation per Katsina-Alu in MAGBAGBEOLA V SANNI (2005) LPELR 1815; see also NNPC v LUTIN INV. LTD. & ANOR (2006) LPELR 2024, APOSTOLIC CHURCH, ILESHA V A.G. MID-WESTERN (1972) 4 SC PG. 150, ACB PLC V EMOSTRADE LTD (2002) FWLR (PT. 104) PG. 540, JK RANDLE V KWARA BREWERIES LTD. (1986) 6 SC PG. 1.” PER UZO IFEYINWA NDUKWE-ANYANWU J.C.A.
PARTY: WHERE PARTY TO A SUIT IS NOT A LEGAL ENTITY
“Consequently, where either of the parties is not a legal person, the action is liable to be struck out as being incompetent. See the cases of Shittu v. Ligali (1941) 16 NLR 21; Agbonmagbe Bank Ltd v. General Manager G. B. Olivant Ltd & Anor (1961) ALL NLR 116, Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt. 105) 558 and Ataguba & Co. v. Gura (Nig) Ltd (2005) 6 MJSC 156.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICE
UZO IFEYINWA NDUKWE-ANYANWU justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA justice of The Court of Appeal of Nigeria
Between
REGISTERED TRUSTEES OF INTERNATIONAL ISLAMIC RELIEF ORGANISATION, KADUNA (IIRO)Appellant(s)
AND
1. KEYSTONE BANK PLC
2. DR. MOHAMMED KABIR MUSA
3. MALLAM ABDULWAHAB ABDULQUADIRRespondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of T. Zalani J. (as he then was) of the High Court of justice of Kaduna State, sitting in Kaduna delivered on the 7th February, 2012 in Suit No. KDH/KAD/406/2007.
The Appellant herein as the Plaintiff at the lower Court commenced this action against the Defendants/Respondents by a Writ of Summons and statement of Claim dated 30th August, 2007 and filed on the 3rd September, 2007 claiming against the Defendants jointly and severally for the total sum of N33,690,998.87, as follows:
a. The sum of N23,697,676.08 (Twenty-Three Million Six Hundred and Ninety-Seven Thousand Six Hundred and Seventy-Six Naira and Eight Kobo) which was withdrawn without the written and direct order of the Secretary-General and not utilized for the benefit of the Plaintiff.
b. The sum of N4,993,322.07 (Four Million, Nine Hundred and Ninety-Three Thousand, Three Hundred and Twenty-Two Naira and Seven Kobo) being the unreturned balance of N25,993,322.07 withdrawn on 01/12/2006 also not utilized for the benefit of the Plaintiff.
c. 5 million (Five Million Naira) being damages for the hardship the Plaintiff is currently undergoing.
The Defendants responded by filing their respective memorandum of appearances and statement of defence, the memorandum of appearances are at pages 29-31 of the record. It is important to note that the 2nd Defendants Statement of Defence was not included in the record. The Plaintiff there after filed a consequential amended reply to the Statement of Defence of the 1st, 2nd and 3rd Defendants dated 30th April, 2010 and filed on the 7th May, 2010.
In the course of the proceedings, the Plaintiff called 7 witnesses and tendered 6 documents. While the 1st Defendant called one witness and tendered 7 Exhibits, the 2nd and 3rd Defendants neither called any witness nor tendered Exhibit. Written Addresses were filed and exchanged by the parties and judgment was entered on the 7th February, 2012 dismissing the Plaintiffs claim.
Dissatisfied with the trial Courts decision, the Appellant herein approached this Court vide a notice of appeal dated 20th February, 2012 containing two (2) grounds of appeal which was later amended vide amended notice of appeal filed on 10th February, 2017.
In line with the rules of this Court, parties filed their briefs of argument. The Appellants brief of 12th March 2018 was filed on 13th March 2018. 1st Respondents amended brief dated 28th March, 2018 and filed 29th March, 2018 and 2nd Respondents amended brief dated and filed on 29th March, 2018. The 3rd Respondent did not file any brief. Already on the 1st November, 2016 this Court granted an application to hear the appeal on the basis of Appellants, 1st Respondents and 2nd Respondents briefs of argument only.
At the hearing of this appeal on the 9th April, 2018, Counsel on both sides adopted their respective briefs of argument.
The Appellant formulated the following two (2) issues for determination of the appeal:
1. Whether his Lordship the learned honourable trial judge was right to have dismissed the Appellants suit on the grounds that Appellant failed to prove its legal status (ground 1 of Notice of Appeal).
2. Whether his Lordship the learned honourable trial judge was right when he rejected an Original Copy of appellants Certificate of Incorporation on grounds that it was not frontloaded (ground 2).
The Respondents on their part, formulated their respective issues for determination as follows:
1st Respondent formulated one issue:
Whether in the entire circumstances of this case, the trial Court rightly rejected the certificate of incorporation sought to be tendered by the Appellant through Pw7 and rightly dismissed the Appellant action on account of its failure to prove its juristic personality.
2nd Respondent also formulated one issue for determination:
Whether the trial Court was right when it held that the Appellant did not prove that it was a juristic person.
ARGUMENTS ON THE ISSUES FOR DETERMINATION
A.A. Abdulazeez Esq., adopting the brief of argument settled, on behalf of the Appellant submitted on issue one that in civil proceedings, proof is only required on facts upon which parties have by their pleadings joined issues. It follows naturally that once issues are not joined on a particular matter and was not suomoto raised by the Court, it is deemed admitted and required no further proof.
He argued that the Appellants legal personality was not in issue between the Appellant and 1st and 2nd Respondents; it was only the 3rd Respondent that joined issues on it by his pleadings.
The Learned Counsel reproduced in his brief, paragraphs 2, 3, 4 and 5 of the 1st Respondents Statement of Defence and submitted that he further annexed a copy of the Plaintiffs Certificate of Incorporation to the Statement of Defence. That what is admitted requires no further proof. He cited Section 75 of the Evidence Act, 2011 to support his contention.
The Learned Counsel contended that since the legal personality of the Appellant had been admitted by the first and second Respondents and since 1st Respondent went ahead to establish Appellants registration with the corporate affairs commission, that particular fact requires no further proof as against the 1st and 2nd Respondents. He further contended that the 3rd Respondent who challenged the legal personality of the Appellant did not call any evidence at the trial, therefore, consequently abandoned his pleadings. He relied on the case of Awuse v. Odili (2005) 16 NWLR (Pt. 952) p. 416.
The Counsel conceded the argument that once the legal personality of a party has been made an issue, either by the pleadings or by the Court suo moto, the onus of proving same rests squarely on that party who claimed the legal personality and the only admissible evidence is the production of the certificate of incorporation. He argued that the party who challenged the legal personality of the Appellant abandoned his pleadings he therefore intended not to use it and consequently every averment contained therein ceased to be relevant to the determination of the case before the trial Court; he urged this Court to hold that the legal personality of the Appellant ceased to be an issue. He relied on the case of Adecentro (Nig) Ltd. v. C. O. A. U. (2005) 15 NWLR (Pt. 948) p. 290 at 312.
Learned Counsel also submitted that each Defendant filed a separate Memorandum of Appearance and Defence, the 2nd and 3rd Respondents pleadings having been abandoned, leave only the 1st Respondents Statement of Defence which expressly admitted that the Appellant was incorporated. The 2nd and 3rd Respondents neither indicated their intention to rely on the 1st Respondents pleading and evidence nor notify the Court that they are not calling witnesses because of the weakness of the Appellants case; the only conclusion is that they abandoned their pleadings. He refers us to the case of Akanbi v. Alao (1989) 20 NSCC (Pt. 11) p. 263 at 275.
He urged this Court to hold that since the 1st Respondent whose pleadings survived before the trial Court admitted the legal personality of the Appellant and since the trial judge did not suo moto raise same, there was no need for proof of same.
On issue 2, the Appellants Counsel submitted that assuming but not conceding that there was need to prove the legal personality of the Appellant at the trial Court, the only party with the subsisting pleadings has admitted that the Appellant was incorporated; the trial Judge was therefore, in error when he rejected the original copy of the Appellants certificate of incorporation on the grounds that it was not front loaded and was not a certified true copy.
The Learned Counsel produced, in his brief the provisions of Order 3 Rule 2(1)(a-d) of the Kaduna State High Court (Civil Procedure) Rules 2007 and submitted that the Appellant complied with the rule of Court by frontloading its certificate of incorporation No. 6188 dated 10th June, 1991 which was also attached by the 1st Respondent in his pleadings. He urged us to hold that the trial judge was wrong for rejecting the certificate of incorporation tendered by the Appellant on the ground that it was not frontloaded.
Counsel argued that the essence of the frontloading system is to give the adverse party forehand knowledge of what to expect at the trial of the case so as not to spring surprise on him. He cited the case of Chime v. Ezea (2009) 2 NWLR (Pt. 1125) p. 263 and submitted that since Courts are not bound to slavishly follow the rules of Court even to the detriment of the justice of a case, failure to comply with the rules of frontloading is at best a mere procedural flaw which ordinarily should not impede the duty of the honourable Court to do justice to parties before it so long as the document is relevant.
He argued that Plaintiff, in this case, frontloaded certificate of incorporation that was tendered through its director who has the custody of the certificate but the trial judge upheld the objection that the certificate was not a certified true copy and was accordingly rejected. Learned Counsel also argued that the trial Court misconstrued the position of the law for rejecting original copy of public documents. The best form of evidence is primary evidence. In case of public document, the best evidence is by producing the original document itself for inspection by the Court or by tendering the certified true copy of the document. He relied on Dana Impex Ltd v. Awukam (2006) ALL FWLR (Pt. 311) p. 1924 at 1928-29.
Counsel further submitted that the fact that the Evidence Act allows the admissibility of certified true copy of public document, it cannot be misconstrued as making its original in admissible. He argued that the original of a public document like certificate of incorporation, letters of employment of civil servants and academic results issued by public educational institutions remained the best form of evidence. Unless the document is such as cannot be moved before the Court for its inspection or, is such as requires authentication from issuing authority which has its custody, the primary document is best means of proof.
He submitted that the Supreme Court held that original record book of a Court which is the primary evidence of the proceedings of the Court was admissible as primary evidence of the Courts judgment, over and above certified copies of the said judgment. He relied on the cases of Onobruchere v. Esegine (1989) 17 NSCC (Pt. 1) p. 343, Araka v. Egbue (2003) 17 NWLR (Pt. 848) p. 1 and Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) p. 373.
He further argued that the need to tender certified copy of a public document is only activated when it is impossible to provide the original document and the need for proof of by secondary evidence became inevitable. This cannot, however, make the primary evidence of public document inadmissible. He urged us to hold that the trial judge was in error when he rejected the original copy of the certificate of incorporation tendered by the Appellant and on that premise held that the Appellant failed to prove its legal personality.
He finally urged this Court to allow the appeal and set aside the judgment of the trial Court.
Learned Counsel for the 1st Respondent, Wole Agunbiade argued the lone issue for determination and in response to the Appellants argument. He submitted that parties as well as the Court are bound by the pleadings in any given case, and it is not permissible for any Court to enter upon any inquiry into a case before it other than to adjudicate upon the specific points raised in the pleadings. He referred to the case of Kubor & Anor v. Dickson & Ors (2013) 4 NWLR (Pt. 1345) 534 at 568 and argued that the Appellant in paragraph 1 of the Statement of Claim averred that it was registered in November, 1990 with reference No. 6188 by the Federal Republic of Nigeria, also in paragraph 4(a) of the consequential amended reply to the Statements of Defence of the 1st, 2nd and 3rd Defendants. The same certificate of incorporation was pleaded by the Appellant and referred to the certificate frontloaded by the 1st Defendant dated 10th June, 1991 as the certificate of appellants incorporation, a copy was even tendered for identification.
The learned Counsel submitted that the Appellant, during trial without amending the pleadings sought to tender another certificate of registration through Pw7 in proof of its juristic personality that there was an attempt by the Appellant to deviate from the case already presented to the trial Court. He submitted that the trial Court rightly halted the act of the Appellant in order to avoid unfairness in the trial. The proof of incorporation of the Appellant was never founded on the certificate rejected by the trial Court. That it would have been wrong for the Court to receive the rejected document in evidence. He relied on the cases of Spasco Vehicle and Plant Hire Co. Ltd v. Alraine (Nigeria) Limited (1995) 8 NWLR (Pt. 416) 655 at 669 and African Continental Seaways Ltd. v. Nigerian Dredging Roads and General works Limited (1977) 5 SC 141.
The Learned Counsel submitted that the essence of frontloading system under the Kaduna State High Court (Civil Procedural) Rules, 2007 is to, inter alia, enable the parties to an action, know not only the case they are to meet at the trial but also the oral and documentary evidence by which the case is to be proved or disproved. He cited the case of Ge International Operations Limited v. Q-Oil and Gas Service (2015) 1 NWLR (Pt. 1440) 244 at 264.
He referred to Order 3 Rule 2(1), Order 19 Rule 1 and Order 33 Rule 4 of the Kaduna State High Court (Civil Procedural) Rules, 2007 and argued that no document shall be receivable in evidence at the trial of an action if it has not been filed along with the pleadings of the parties, unless at or before the trial, a judge, for special reasons, otherwise orders or direct. He submitted that in this case no order or directive was given for the admissibility of the original certificate rejected by the trial Court. He further argued that should the document be allowed by the trial Court, it would have defeated the essence of frontloading and thereby spring surprise to the opponents.
The Learned Counsel also submitted that contrary to the submission of the appellants counsel, the juristic personality of the Appellant remained a life issue notwithstanding the failure of the 3rd Respondent to call evidence in support of his statement of defence, the Appellant has not shown how a point of law affecting the jurisdiction of the Court could be abandoned. The conflict and contradictions in the Appellant case in relation to its juristic personality, name and date of incorporation, as it appeared on the certificate, made it imperative for the Appellant to have led clear evidence at the trial. The admission of juristic personality of the Appellant by the 1st Respondent does not relieve the Appellant the onus of proving same. He cited the case of Registered Trustees of the Apostolic Church v. A. G. Mid-Western State &Ors. (1972) 7 NSCC 247 at 252 and submitted that Section 6 of the Lands (perpetual succession) Act referred to in the case is in pari material with Section 596 of CAMA, Cap. C20 Laws of the Federation of Nigeria, 2004. He urged this Court to follow the decision and uphold the judgment of the trial Court.
The Learned Counsel further argued that the Appellants name that is reflected in the processes and the name in which it sued the Respondents is not a juristic person, and therefore rendered the action incompetent. He relied on the cases of Goodwill & Trust Investment Limited & Anor v. Witt & Bush Limited (2011) 8 NWLR (Pt. 1250) 500, Ifedapo Community Bank Ltd v. Eternal Order of C&S Church, Saki Branch (2001) 7 NWLR (Pt. 712) 508 and The Registered Trustees, Pentecostal Assemblies of the World Inc. v. The Registered Trustees of the African Apostolic Christ Church (2002) 15 NWLR (Pt. 790) 424.
The Counsel also submitted that the Appellant did not contest the fact that the issue of juristic personality is a jurisdictional point and could be raised at any stage of proceedings before any Court, even on appeal for the first time and cannot be defeated by estoppel, rules of Court or procedure or manner in which it is raised. He relied on the following cases to buttress the point: Oloba v. Akereja (1988) 2 NSCC 120, Nuhu v. Ogele (2003) 18 NWLR (Pt. 852) 251 and the case of Ogboru & Ors v. Shell Petroleum Dev. Co. of Nigeria Limited &Ors (2005) 17 NWLR (Pt. 955) 576.
He argued that the Appellants contention that the 3rd Respondent had abandoned the issue for failure to call evidence in support of his pleadings, is misconceived, as the point is obvious from the record and the 1st Respondent raised it in the final written address. That the cases cited by the Appellant in paragraphs 4.5 and 4.6 of the Appellants brief does not avail the Appellant, the principles there-in do not relate to the necessity of proof of juristic personality of a party.
Issue of jurisdiction is always a live issue and cannot be abandoned. He cited the dictum of Aderemi, J.S.C in the case of Administrators/Executors of the Estate of General Sani Abacha (Deceased) v. Eke-Spiff (2009) 7 NWLR (Pt. 1139) 97 and submitted that the trial Court rightly upheld the contention that the Appellant had failed to prove its juristic personality and urged this Court to uphold the decision of the trial Court.
He finally urged this Court to resolve the lone issue in favour of the 1st Respondent, dismiss the appeal and uphold the decision of the trial Court.
The learned Counsel for the 2nd Respondent, Elisha Y. Kurah, SAN, also formulated one issue in his brief. Arguing the lone issue, he referred to paragraph 1 of the Appellants and 3rd Respondents pleadings at pages 32 and 33 of the record of appeal and submitted that it was the Plaintiff who pleaded that it was incorporated trustee, registered in 1990 as No. 6188. The 3rd Defendant unequivocally denied the Plaintiffs claim of incorporation. The Plaintiff, therefore, had the burden to convince the Court that it had the juristic personality it claimed notwithstanding the admission by the other Defendants.
The fact that the 3rd Defendant did not give evidence does not relieve the Plaintiff from discharging the burden placed by law for establishing its legal personality, it is a matter of law that could only be discharged by production of certificate of incorporation. He relied on the cases of Registered Trustees of the Apostolic Church v. Attorney-General, Mid-Western (1972) ALL NLR 359 at 365; Fawehinmi v. NBA (No. 2) (2008) ALL FWLR (Pt. 448) 205 at 288; Magbagbeola v. Sanni (2005) ALL FWLR (Pt. 264) 1317, Nduka v. Ezenwaku (2001) 6 NWLR (Pt. 709) 494 and O. S. Co. Ltd. v. The Owners of the MT BATA 1 (2012) AL FWLR (Pt. 641) 1586 at 1596.
The learned Counsel further referred to the decision in the case of Dairo v. R.T.A.D of Lagos (2018) 80 EJSC 109 at 124 and submitted that the Plaintiff after pleading and frontloading of certificate of incorporation, the Plaintiffs Counsel tendered copy of the certificate, Exhibit P1 for identification as it was not certified true copy. He argued that document tendered for identification purpose lack probative value and the trial Court was right in ignoring it. He referred us to the cases of Dotun Fatilewa & 1 Or v. The State (2007) ALL NLR (Pt. 347) 695 at 722, Hausa v. The State (1994) 7-8 SCNJ 144 at 167-168 and Olagbemiro v. Ajagungbade III (1990) 3 NWLR (Pt. 136) 37.
The learned Counsel also submitted that the Plaintiff attempted to tender another certificate of incorporation in an attempt to establish its juristic personality through Pw7. That the Plaintiff has two certificates of incorporation, the first one was obtained in 1990 No. 6188 and the subsequent one that was sought to be tendered and rejected on the basis of objection that it was not frontloaded and was obtained during the pendency of the suit. The Counsel produced, in his brief, the proceedings of the trial Court in that respect and argued that it was only the old certificate tendered through Pw1 and marked Exhibit P1 that was pleaded by the Appellant and was also frontloaded by the 2nd Respondent. The 2nd certificate was never pleaded as it was made when the suit was already pending and the 2nd respondent could not have had access to it for the purpose of frontloading.
On the appellants complaint on the 2nd ground of appeal, the 2nd Respondents Counsel submitted that it was the appellants contention that the certificate of incorporation was pleaded, even if it was not frontloaded, as ruled by the trial Court, same was admissible. That apart from the fact that the rejected certificate was not pleaded, even if it was pleaded, it was not frontloaded and same would still be inadmissible. He further argued that Order 3 Rule 2 of Kaduna State High Court (Civil Procedure) Rules, 2007 makes it mandatory for the Plaintiff to frontload copies of all documents to be relied upon at the trial and Order 33 Rule 4 thereof conferred the trial Court the right reject to a document which a party seeks to tender outside those frontloaded.
On the reliefs sought by the Appellant before this Court as contained at page 215 of the record of appeal, the Learned Counsel submitted that the Appellant did not prove its claim against the Respondents as the evidence adduced remained unreliable and contradictory especially the evidence of Pw1 who changed the coloration of the Appellants case before the trial Court. That since the instant appeal will not change the fortunes or position of the Appellant, allowing the appeal will amount to making order in vain which this Court has the duty to refrain from. He relied on the cases of Ibidokun v. Adaraloda (2000) 23 WRN 86 at 107 and Iweka v. SCOA (2000) 3 SC 21 at 29.
He finally urged this Court to dismiss this appeal and affirm the decision of the trial Court.
RESOLUTION
I have carefully examined the issues formulated by the Appellant and the two issues formulated by the 1st and 2nd Respondents as well as the arguments canvassed therein; I find them similar in substance; I shall therefore determine this appeal on issues formulated by the Appellant.
On issue 1, the Appellant contended that the 1st and 2nd Respondents admitted in their pleadings its legal personality, it was only the 3rd Respondent that joined issue on that aspect and who later abandoned his pleadings for failure to call evidence. It has long been established that the main function of pleadings is to ascertain with as much certainty as possible the various matters that are in dispute between the parties and those in which there are agreement or which no issues have been joined, so as to avoid any surprise by either party. However, before a Court decides whether or not there is an admission in the statement of defence in respect of an averment in a statement of claim, it must consider the entire pleadings of the parties as a whole, since, it is the totality of the pleadings, be it the statement of claim or the statement of defence, that states the case of the party, it will be unjust to invoke only a few paragraphs of either pleadings to come to a conclusion. See the cases of Oshodi v. Eyifunmi (2000) 7 SC (Pt. 11) 145, Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 and Ngige v. Obi (2006) 14 NWR (Pt. 999) 1.
In the instant case, though 1st and 2nd Respondents, admitted in their pleadings, the legal personality of the Appellant, the 3rd Respondent, in his statement of defence by paragraph 1(a) thereof, denied the existence of the Appellants legal personality. The burden of first proving that the Plaintiff is an incorporated registered trustee and registered in November 1990 with reference No. 6188 by the Federal Republic of Nigeria, as pleaded in paragraph 1 of the Statement of claim lies squarely on the Plaintiff/Appellant. It is when the burden is discharged that the 3rd Respondent may be called upon to enter his defence failure of which he will be regarded to have abandoned his pleadings.
It is settled law in a civil case, the party that asserts in its pleadings the existence of a particular fact is required to prove such facts by adducing credible evidence. If the party fails to do so its case will fail. On the other hand, if the party succeeds in adducing evidence to prove the pleaded fact, it is said to have discharged the burden of proof that rests on him. The burden is then said to have shifted to the partys adversary to prove that the fact established by the evidence adduced could not on the preponderance of the evidence result in the Court giving judgment in favour of the party. See: Section 133 to 137 of the Evidence Act, 2011 and the case of Buhari v. Obasanjo (2005) 8 MJSC 1.
In the instant case and from the record of the trial Court, there was no proper evidence in proof of the appellants legal personality as pleaded in paragraph 1 of the statement of claim. The only document admitted by the trial Court was Exhibit P1, a photocopy of appellants certificate of registration with corporate affairs commission, it was tendered by the Appellants Counsel for identification purpose on the ground that the original was submitted to the corporate affairs commission for change of trustees. Exhibit P1 being photocopy of appellants certificate of registration with corporate affairs commission of Nigeria, a secondary evidence of a public document, was not certified and therefore inadmissible under Section 90(1)(e) (f) of the Evidence Act, 2011; that was the reason why the Learned Counsel for the Appellant tendered it for identification purpose only and not tendered in evidence. Consequently the Appellant failed to establish his legal personality by credible evidence as pleaded in the statement of claim and therefore not competent party to the suit as it lacks capacity to sue or be sued.
For an action to be properly constituted so as to vest jurisdiction in the Court to adjudicate on it, there must be a competent Plaintiff and a competent Defendant. As a general principle, only natural persons, that is, human beings and juristic or artificial persons such as body corporate are competent to sue or be sued.
Consequently, where either of the parties is not a legal person, the action is liable to be struck out as being incompetent. See the cases of Shittu v. Ligali (1941) 16 NLR 21; Agbonmagbe Bank Ltd v. General Manager G. B. Olivant Ltd & Anor (1961) ALL NLR 116, Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt. 105) 558 and Ataguba & Co. v. Gura (Nig) Ltd (2005) 6 MJSC 156.
In the instant case, the trial Court, having found the Plaintiff not competent before it, the proper order to make was to strike out the suit and not dismissal.
Issue 1 is therefore resolved against the Appellant.
On issue 2, the contention of the Appellant in this issue is that, the trial Court rejected the appellants original certificate of registration with corporate affairs commission on the basis that same was not certified and was not frontloaded.
With due respect to the Appellants Counsel, it is clear from the record of appeal and evidence of Pw1 at page 186 of the record of appeal, that he identified the copy of the certificate of appellants registration as deposed to by the 2nd Defendant/Respondent and attached to statement of defence. The Learned SAN tendered it for identification purpose only, as it was not certified.
The Learned Counsel is expected to tender either the original certificate as pleaded in his statement of claim and identified by Pw1 or certified true copy. But instead, the Learned Counsel through Pw7, who testified that the Plaintiff is incorporated, we have registration with corporate affairs commission. It is a certificate, I brought it from Abuja. We had an old one. I brought the new one
The Learned Counsel tendered the new certificate that was obtained after filing the suit. All the Defendants opposed the admissibility of the certificate which the trial Court found substance in the objection and rejected the certificate.
The learned trial Judge was right in rejecting the document, the certificate was not pleaded, frontloaded and was obtained during the pendency of the suit. It is elementary principle of law that parties are bound by their pleadings and evidence not supported by pleadings go to no issue. Where there are no pleadings upon which evidence has been led, the Court should discountenance such evidence. See Oke-bola v. Molake (1975) 1 SC 61; George v. Dominion Flour Mills Ltd (1963) 1 ALL NLR 71, Adepoju v. Awoduyilemi (1999) 5 NWLR (Pt. 603) 364 and Buhari v. Obasanjo (2005) 8 MJSC 1.
In the instant case, the original certificate sought to be tendered by the Appellant through Pw7 in proof of its registration was neither pleaded nor frontloaded and was not even in existence at the time of instituting the suit. The trial Court therefore rightly rejected the document. The only certificate pleaded and which was in-existence at the time of filing the action was the one tendered through Pw1, for identification purpose only and was marked P1. The said Exhibit, as rightly submitted by the respondents, was no more than for identification only; it was not properly tendered as exhibit before the Court; the trial Court therefore could not have used a document that was not in evidence before the Court in determining a matter before it.
Consequently, the Appellant having failed to establish its registration with the corporate affairs commission of Nigeria as well as competency to sue and be sued at the time of filing the instant suit, affects the competency of the suit itself and therefore, liable to be struck out.
This issue is also resolved in favour of the Respondents.
Having resolved all the two issues for determination in this appeal against the Appellant, I find no merit in this appeal.
I accordingly dismiss the appeal and affirm the decision of the trial High Court and substitute the dismissal order made therein with an order striking out the suit for being incompetent. I also award N10, 000.00 costs against the Appellant in favour of the Respondents.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Mohammed Ambi-Usi Danjuma, JCA.
I agree with him that the best evidence of incorporation is the production of the Certificate of incorporation per Katsina-Alu in MAGBAGBEOLA V SANNI (2005) LPELR 1815; see also NNPC v LUTIN INV. LTD. & ANOR (2006) LPELR 2024, APOSTOLIC CHURCH, ILESHA V A.G. MID-WESTERN (1972) 4 SC PG. 150, ACB PLC V EMOSTRADE LTD (2002) FWLR (PT. 104) PG. 540, JK RANDLE V KWARA BREWERIES LTD. (1986) 6 SC PG. 1.
In the present appeal, the Appellant as Plaintiff presented a photocopy of the original certificate of incorporation which was not certified. The trial Judge rejected this document and therefore, the Plaintiff could not prove its juristic personality to sue and be sued.
For this and the more robust reasoning in the lead judgment, I also dismiss this appeal. I abide by all the orders in the lead judgment including that as to costs.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to peruse, in draft, the leading judgment delivered by my learned brother, Mohammed A. Danjuma, JCA. I am in agreement with it. I too visit a deserved dismissal on it. I abide by the consequential orders decreed in it.
Appearances:
Yunus Ustaz Usman, SAN with him, A. A. Abdulazeez, Esq.For Appellant(s)
Wole Agunbiade, Esq. for the 1st Respondent.
Elisha Y. Kurah, SAN with him, P.M. Philemon, J.Y. Madaki, E. Mutum, G.A. Solomon and Y.S. Abiriyi for the 2nd Respondent.
K. Suyidi with him, Nimi Ibrahim for the 3rd Respondent.For Respondent(s)
K. Suyidi with him, Nimi Ibrahim for the 3rd Respondent.For Respondent
