ADAMA BEVERAGES LIMITED v. ALHAJI HAMIDU GALLEON
(2016)LCN/8232(CA)
In The Court of Appeal of Nigeria
On Thursday, the 3rd day of March, 2016
CA/YL/6/2015
RATIO
EVIDENCE: BURDEN OF PROOF; WHO HAS THE BURDEN OF FIRST PROVING THE EXISTENCE OR NON-EXISTENCE OF A FACT
The law is trite and certain that the burden of first proving the existence or non-existence of a fact lies on the party against whom the Judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. See Sections 131, 132 and 133(1) of the Evidence Act, 2011. If such party adduces evidence which ought reasonably to satisfy the Judge that the fact sought to be proved is established, the burden lies on the party against whom Judgment would be given if no more evidence were adduced, and so on successively until all the issues in the pleadings have been dealt with. See Section 133(2) of the Evidence Act (supra).
Thus, the burden of first proving a fact is usually on the plaintiff who brought the action, though not invariably so. There are times when the burden is on the defendant, depending on the state of the pleadings. Therefore it is valid law that the state of the pleadings materially determines the party who has the burden of proof, otherwise referred to as the onus probandi. Hence, he who asserts a fact must first prove that fact with credible evidence that is relevant to the matter in controversy, not evidence that is irrelevant and inconsequential to the success of the claim. Thereafter, the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendant and vice versa as the case progresses. The general rule which is enshrined in the maxim ei qui affirmat non ei qui negat incumbit probatio has been provided in Sections 131-133 and 136 of the Evidence Act (supra). See Agala v. Okusin (2010) LPELR-221(SC) 1 at 21-22; Chabasaya v. Anwasi (2010) LPELR-839(SC) 1 at 16; Eharevba v. Osagie (2009) LPELR-1044(SC) 1 at 17-18; Abubakar v. Joseph (2008) LPELR-48(SC) 1 at 43; Nwavu v. Okoye (2008) LPELR-2116(SC) 1 at 38; Owie v. Ighiwi (2005) LPELR-2846(SC) 1 at 29; & Osawaru v. Ezeiruka (1978) LPELR-2791(SC) 1 at 13-14. per. JUMMAI HANNATU SANKEY, J.C.A.
EVIDENCE: WHAT IS THE BEST EVIDENCE OF THE JURISTIC PERSONALITY OF THE APPELLANT/RESPONDENT AS AN INCORPORATED PERSON
It is trite that the best evidence of the juristic personality of the Appellant/Respondent as an incorporated person is the production of its Certificate of Registration or Incorporation. See Bank of Baroda v. Iyalabani Company Ltd (2002) LPELR-743(SC) 1 at 20; & Motorcycle Transport Union of Nigeria (MTUN) v. Delta State Motorcyclist Association (DSMA) (2010) LPELR-4503(CA) 1 at 9-10.
In Ostankino Shipping Company Ltd (Owners of the MT. “Ostankino”) V The Owners of MT “Bata 1” (2011) LPELR-4806(CA) 1 at 19-20, this Court, per Mshelia, JCA, held as follows:
“In Nduka v. Ezenwaku (2001) 6 NWLR (Pt. 709) at 517, it was held that:-
“Where the juristic status of a defendant company is put in issue, the plaintiffs must prove that legal personality by producing the company certificate of incorporation… The Appellant failed to prove the incorporation of the certificate of incorporation… I must add, in agreement with the submission of the Respondent, that the addition of “Ltd” or “Plc” to the name of the firm Commerce Lords Nigeria Ltd would not necessarily mean that it had been incorporated under CAMA.” per. JUMMAI HANNATU SANKEY, J.C.A.
PRACTICE AND PROCEDURE: WHETHER IT IS ESSENTIAL TO STATE THE PARTIES CORRECTLY IN AN ACTION FOUNDED ON CONTRACT AS WELL AS TORT
In an action founded on contract, as well as on tort, it is essential to state the parties correctly. See: Monier Construction Company Ltd v. Azubuike (1990) LPELR-1910(SC) 1 at 16.
In Bello v. INEC (2010) LPELR-767(SC) 1 at 80-81, the Supreme Court expounded the Law on who a party to a suit is, in these terms per Adekeye, JSC:
“While ‘parties’ in the case of Green v. Green (1987) NSCC pg. 115 at pg. 121 is defined as “persons whose names appear on the record as plaintiff or defendant”, in the case of Fawehinmi v. NBA (No. 1) (1989) 2 NWLR (Pt. 105) pg. 494 at pg. 550 ” a party is defined as follows:
“A party to an action is a person whose name is designated on record as plaintiff or defendant, the term party refers to that person(s) by or against whom a legal suit is sought whether natural or legal persons but all others who may be affected by the suit indirectly or consequently are persons interested, and not parties.” per. JUMMAI HANNATU SANKEY, J.C.A.
JUSTICES:
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
Between
ADAMA BEVERAGES LTD. – Appellant(s)
AND
ALHAJI HAMIDU GALLEON – Respondent(s)
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the High Court of Justice Adamawa State in Suit No. ADSY/76M/2015 delivered on 18th September 2014. The Court below, sitting in its appellate jurisdiction, dismissed the Appeal of the present Appellant and one Alhaji Ahmed H. Zarma, against the decision of the Upper Area Court delivered on 30-04-13. Aggrieved by the decision of the Court below, the Appellant sought and obtained the leave of the Court below to file an Appeal vide its Notice of Appeal on 04-11-14.
The brief facts of this case are as follows: The Respondent, a businessman, filed an action before the Upper Area Court 2 Yola against “Faro Bottling Company Limited” in Suit number CV/FI/TR/51/2000 on 04-11-02. Therein, he claimed inter alia for: (i) the sum of N680,400.00, being the amount accrued by the Defendant for hiring 1,200 crates of empty soft drink bottles from the Plaintiff at the rate of N10,800 per month from June 1995 to August 2000, and thereafter at the rate of N10,800.00 per month from September, 2000 until Judgment and final payment; (ii) return of the 1,200 crates of empty bottles; and in the alternative, its value in the sum of N540,000.00 at the rate of N450.00 per crate; (iii) plus 21% interest. The Defendant denied the claim and at the close of trial, Judgment was entered in favour of the Plaintiff in the sum of N907,200.00 plus costs of N50,000.00. Thereafter, the Defendant made a part-payment of the Judgment sum in the sum of only N300,000.00 but thereafter, made no further effort to settle the balance on the Judgment debt. The Judgment Creditor/Plaintiff/Applicant therefore approached the same Upper Area Court 2 Yola, (as differently constituted) vide a motion on notice filed on 07-03-13, now against two Respondents, named as follows:
(i) “Faro Bottling Co. Nig. Ltd now Adama Beverages Ltd; and
(ii) Ahmed H. Zarma.”
Therein, he sought the following reliefs:
1. “An order of this Hon. Court granting leave to the Applicant to enforce Judgment delivered on 04-11-02 against the Respondents.
2. An order of this Hon. Court deeming all processes filed and served on the Defendants/Respondents as properly filed and served.
3. An order of the Hon. Court on the Defendants/Respondents to pay all the Judgment debt together with the interest as contained in the Judgment.
4. An order on the Defendants/Respondents to return the Plaintiff that are in the custody of the 1,200 empty crates belonging to the Defendants or its equivalent value at the current market price.
5. Any other order(s) the Hon. Court may deem fit to make in the circumstances of the case.”
In support of the motion, the Applicant (now Respondent) deposed inter alia thus in his supporting affidavit (at pages 4-6 of the Record):
1. That I am a businessman who run (sic) a guest (sic) in known as Mamiso Memorial Guest Inn situated at Numan Town, Numan Local Government Area, Adamawa State.
2. That the 1st Defendant/Respondent is a registered Company dealing in the business of soft drinks production with the head office at Kofare Industrial Area, Jimeta-Yola, Adamawa State.
3. That I am into business with he said Company where it use to supply me with the soft drinks at Memiso Memorial Guest House Numan since 1992.
7. That sometime the company run short of empty crates and approached me to hire my empty crates to it which I obliged for a period of 3 months.
8. That we enter into agreement dated 1st October, 1994. The said agreement letter dated 1/10/1994 is hereby attached and marked Exhibit B.
9. That after expiration of 3 months, I demanded for the return of my empty crates, but it could not return it to me instead the company send me a letter dated 16/1/1995 up reviewing the agreement. The said letter dated 16/1/1995 is hereby attached and marked Exhibit C.
10. That the company has stopped supplying me with the product since June, 1995. I then wrote a letter to the company reminding it of my crates in its custody…
11. That after all efforts to return my crates and the payment of the hire rate has failed, I sued the company at the Upper Area Court II Yola, where Judgment was given in my favour after hearing both side.
13. That the Defendants only made a part payment of N300,000.00 only through my lawyer…
The 2nd Respondent to the motion, Ahmed H. Zarma, who is also a staff of the Appellant herein, Adama Beverages Limited, responded by filing a Counter affidavit (at pages 29-30 of the Record) denying the assertions in the Applicant’s affidavit and deposing inter alia as follows:
4. That I admit Paragraph 11 of the affidavit in support of the motion only to the extent that I was only invited as a witness and I testified in the suit as a DW1 where I informed the Court what I know about the case.
5. That I am not in a position to admit or deny facts deposed in Paragraphs 12 and 13 of the affidavit in support of the motion because I was not a party to the suit filed by the Plaintiff/Applicant against the 1st Defendant/Respondent. I only testified as a witness and I was not aware of the Judgment (Exhibit E attached to the affidavit in support of the motion)…
6. That on the 12th March 2013 at about 2pm, Ismaila Ibrahim of Counsel, informed me in his office and I believed his information to be true as follows:
(a) Being not a party the substantive suit filed by the Plaintiff/Applicant against the 1st Defendant/Respondent, I cannot be joined as a party under an application for enforcement of Judgment of the case, while the Defendant/Respondent is alive and in existence.
(b) That the 1st Defendant/Respondent is a registered Company under Nigerian law with its Directors existing.
c) That Adama Beverages Limited is also a registered Company which is independent of the 1st Defendant/Respondent; therefore the two cannot alternate each other.”
The said Upper Area Court 2 heard arguments on the motion, during which learned Counsel for the Applicant contended that attempts to serve “Adama Beverages Limited” with the Court processes failed, as the latter had refused to accept service. The processes were therefore served by substituted means, following leave sought and obtained from the trial Court. The named 1st Respondent thereon, i.e. “Faro Bottling Co. Nig. Ltd now Adama Beverages Ltd” did not appear in person through any officer of the Company or through Counsel to respond to the motion. However, Counsel for the 2nd Respondent, Ahmed Zarma, in his response to the arguments on the motion, submitted that “Faro Bottling Co. Ltd” and “Adama Beverages Ltd” were both separate corporate organizations with distinct and different Directors. He argued that the Applicant should have conducted a search on the two Companies at the Corporate Affairs Commission before filing the application. He also submitted that, while “Adama Beverages Company” acquired the building property of “Faro Bottling Company”, it did not take over its liabilities. Nonetheless, in its Ruling delivered on 30-04-13 (at pages 38-44) of the Record which, for some reason which is not readily clear to me, is described therein as a “Judgment”), the trial Court held as follows:
“Granted that Faro Bottling Company is distinctly registered as a company under the CAC, so is Adama Beverages Company where is the dividing line? I am of the view that the 2nd Defendant/Respondent and the 1st Defendant/Respondent are being economically (sic) with the truth as regards status and position of things affecting them.
In view of the above therefore I have no option but to resolve this issue in favour of Plaintiff/Applicant. I therefore hold that former Faro Bottling Company 1st Defendant/Respondent is one and the same as Adama Beverages Company Limited. I therefore order as follows:
1. That the judgment of this Court dated 4/11/2002 be enforced on Adama Beverages Company Limited being the 1st Defendant/Respondent in this case…”
There was however no finding or further explanation as to how the trial Court arrived at its finding that the Appellant herein had acquired Faro Bottling Co. Ltd, the erstwhile Defendant and Judgment Debtor, aside from the fact that it had acquired its buildings.
Being dissatisfied with the Judgment, the Appellant herein and Ahmed Zarma appealed to the High Court of Justice, Adamawa State sitting in its appellate jurisdiction in its Notice of Appeal dated 27-11-13 (at pages 107-110 of the Record). Therein, it complained on six grounds. After hearing the Appeal, the Court below (at pages 142-150 of the Record) ordered that the name of the 2nd Appellant, Ahmed H. Zarma, not being a party to the initial suit decided by the trial Court on 04-11-02, be struck out of the Appeal. It however agreed with the trial Court that the Appellant herein, Adama Beverages Ltd is one and the same as Faro Bottling Co. Nig. Ltd., since the Appellant had not debunked the assertion of the Respondent that it had something to do with the latter company, having acquired its buildings. The Court below therefore upheld the Ruling of the trial Upper Area Court 2, and dismissed the Appeal as lacking in merit.
Still dissatisfied, the Appellant now approached this Court vide its Notice of Appeal, which was filed on 04-11-14, with the leave of the Court below sought and obtained. It again complained on six grounds as set out at pages 153-157 of the Record. Briefs of argument were duly exchanged and the Appeal was set down for hearing. When the Appeal was called for hearing on the 02-02-16, Mr. Odo, learned Counsel for the Appellant adopted and relied on the Appellant’s Brief of argument filed on 02-07-15, as the Appellants submissions in the Appeal, and urged the Court to allow the Appeal. Similarly, Mr. Gindau, learned Counsel for the Respondent, also adopted and relied on the Respondent’s Brief of argument filed on 21-08-15, as the Respondent’s argument in the Appeal. He urged the Court to dismiss the Appeal for lacking in merit.
In their respective Briefs of argument, whereas learned Counsel for the Appellant distilled one issue for determination from his five Grounds of Appeal, learned Counsel for the Respondent distilled two issues for determination. I adopt the sole issue formulated by the Appellant as it succinctly captures the main issue seeking resolution in the Appeal. It states:
Whether there was any justifiable reason why the High Court, which sat on appeal, upheld the decision of the learned trial Judge granting the application, the subject of this Appeal, and ordered that the Judgment of the trial Court in Suit No. CV/FI/TR/51/2000 decided on 4/11/2002 should be enforced against the Appellant herein and even awarded interest on the Judgment sum.
In arguing the Appeal, learned Counsel for the Appellant submits that there was no justifiable reason why the learned Judge of the Court below upheld the decision of the trial Judge and ordered that Judgment of the trial Court be enforced against the Appellants herein, and even awarded interest on the Judgment. He submits that the Ruling of the trial Upper Area Court appealed against is against the weight of evidence adduced before it. That in civil matters the onus is always on the applicant or plaintiff to make out a case, before a respondent or defendant would be required to answer to such a case. He relies on Newbreed v. Erhomosele (2006) 2 SCNJ 198 at 215; Ogwuche v. B.S.C.S.C. (2014) 7 NWLR (Pt. 1406) 374 at 393, paras B-F; Emirate Airline v. Ngonadi (2014) 9 NWLR (Pt. 1413) 429 at 473-474, paras G-D; & Kokoro v. Ogunbambi (1993) 8 NWLR (Pt. 313) 627.
Counsel submits that the Respondent had the onus of satisfying the trial Court that he was entitled to the relief sought, which must of necessity include proof of the fact that Faro Bottling Company Ltd had since become Adama Beverages Ltd, either by merger or takeover or by any other legal means whatsoever. He submits that the Court below erred when it agreed with the trial Upper Area Court in its Judgment. He referred to pages 104-106 of the Record to submit that the trial Upper Area Court misplaced the burden of proof. This was in spite of the unequivocal denial of any acquisition by the Appellant, through the 2nd Respondent to the application. Counsel submits further that the finding of the trial Upper Area Court 2, which was upheld by the Court below, that Adama Beverages Ltd operates where Faro Bottling Co. Nig Ltd used to be and they both produce similar products, is immaterial. He submits that even if it is true that Adama Beverages Ltd operates in the same place where Faro Bottling Co. Nig. Ltd was operating, and it also produces the products which Faro Bottling Co. produced, such facts are not facts that can be judicially noticed. They are also not facts which should be relied upon in establishing a takeover or other acquisition of a company by another. He submits that the Respondent can only discharge the onus placed on him in line with the decision in the Supreme Court case of Afolabi v. W.S.W. Ltd (2012) 17 NWLR (Pt. 1329) 286 at 303, paras F-G; and that no reason was advanced by the Court below as justification for not following this decision relating to the burden of proof on an applicant in a case such as this. He contends that this authority is not distinguishable in any way from the case in point.
Counsel further submits that the undisputed facts before the trial Court show that Adama Beverages Ltd is independent and as such, a separate entity from Faro Bottling Co. Nig. Ltd; while there was no evidence before the trial Court evidencing a merger or a takeover of any of the companies by the other. He relies on Ikadigwe v. Fai (2012) 10 NWLR (Pt. 1308) 375 at 406, paras G-H. He submits that the law is settled that unchallenged evidence at a trial is deemed accepted and a Court ought to act on it. He relied on Omo v. Judicial Service (2000) 7 SCNJ 17 at 32-34; & Oforlete v. The State (2000) 7 SCNJ 162 at 183. It is further submitted that in the absence of such evidence, there was no reason why the judgment obtained against Faro Bottling Co. Ltd in Suit No. CV/FI/TR/51/2000 delivered on 4/11/2002 should be enforced against Adama Beverages Ltd, which is a separate legal entity. Counsel therefore submits that the two lower Courts, in finding for the Respondent herein, misplaced the burden of proof by expecting the Appellant to produce evidence which ought to have been provided by the Respondent before the trial Court.
Counsel also submits that, while not being unmindful of the fact that an appellate Court does not ordinarily interfere with concurrent findings of fact of two lower Courts except where such findings are perverse, that in the instant case, the findings did not take into consideration relevant facts and so it resulted in a perverse decision; that therefore this Court can interfere to remedy the situation. He relies on Gbemisola v. Bolarinwa (2014) 9 NWLR 1 at 24.
In addition, Counsel submits that the Court below also erred in upholding the decision of the trial Upper Area Court as its finding was in the face of Ground 3 of the Appellant’s Notice of Appeal (at page 108) which challenged the jurisdiction of the lower Court to entertain the application, which is the subject matter of this Appeal. Counsel submits that upon delivery of its judgment, the trial Court became functus officio and could not revisit the matter as it did, to deliver a second judgment in the same suit with the same suit number. He argues that the only acceptable ground in law in which a Court can revisit its judgment is to correct typographical errors or some clerical mistakes. Counsel submits that the application, subject matter of this Appeal, was also numbered with the same suit number as the original suit, which had since been disposed. That in other words, the trial Court opened a closed matter without any legal justification.
Furthermore, Counsel submits that the Court below erred in upholding the decision of the trial Court which had no jurisdiction to review its own decision such as to award interest, especially as there was no prayer before the trial Court for the award of interest. He argues that it is trite that the Court is not a ‘Father Christmas’ that awards parties what they have not claimed. He relies on “The Makhambet” v. ITISAN (2012) 2 NWLR (Pt. 1238) 184 at 199 paragraph D; Ado Ibrahim & Co Ltd v. BCC Ltd (2002) 15 NWLR (Pt. 1058) 528; & NNPC v. AIC Ltd (2003) 2 NWLR (Pt. 805) 560.
Additionally, Counsel submits that the Court below erred in upholding the decision of the trial Upper Area Court when it lacked jurisdiction to hear the application with improper parties before it. Counsel thus urged the Court to find that the Appeal has merit. He prayed that the Appeal be allowed and that the decisions of the Court below and the trial Upper Area Court 2 Yola delivered on 18-09-14 and 13-06-13 be set aside, and the application be dismissed.
In response to the submissions of the Appellant, learned Counsel for the Respondent submits that there were justifiable reasons why the Court below upheld the decision of the trial Upper Area Court which granted the application for the enforcement of judgment, which is the subject of this Appeal. He submits that the decision of the trial Upper Area Court was not against the weight of evidence. Instead, that the decision was based on the affidavit before the Court, which did not call for the onus of proof on the Applicant, as both parties filed their affidavit evidence and the judgment was based on the affidavit evidence. Counsel submits that the Applicant/Respondent, in the motion on notice seeking the enforcement of the Judgment of that Court, did not allege anything new. He submits that the Respondent adduced enough affidavit evidence and having convinced the Court thereby, his application was granted. He contends that for the Appellant to argue that the Respondent did not prove that Faro Bottling Co. Nig. Ltd and Adama Beverages Ltd are the same is an afterthought and cannot be of any assistance to his Appeal before this Court. He relies on Danja Maisaje v. Umaru Hassan (2004) 11 NWLR (Pt. 883) 181; & Afolabi v. W.S.W. Ltd (supra) also relied upon by the Appellant’s Counsel.
Counsel submits further that the Court below was right to have agreed with the trial Upper Area Court and upheld its decision. He submits that a judgment delivered against a company means it is against the properties or assets of the company. The only assets of Faro Bottling Co. Nig. Ltd known to the Respondent had been taken over by Adama Beverages Ltd without any explanation as to how they took over the properties. He argues that he who takes over assets also takes over liabilities. He submits that the trial Upper Area Court was therefore right to have granted the application based on the evidence placed before him by both parties.
Relying on the case of Afolabi v. W.S.W. Ltd. (supra), Counsel submits that it is for the Appellant Company (Respondent before the trial Upper Area Court) to show how it came into being and how it took over the properties of Faro Bottling Co. Nig. Ltd. the Judgment debtor. He submits further that the manner in which Adama Beverages Ltd sprung up and took over the properties and staff of Faro Bottling Co. Nig. Ltd is a fact within its knowledge, and until it makes that fact known, it will be held liable for the Judgment sum against the properties of Faro Bottling Company, the Judgment debtor.
Counsel also submits that the trial Upper Area Court had jurisdiction to entertain the application as it did and that Counsel to the Appellant misconceived the status of the application brought before the trial Upper Area Court. He submits further that the Appellant’s contention that the Judge had become functus officio is a clear misconception of the position of the law and the case, as even the Judge who delivered the judgment can equally entertain an application for the enforcement of his judgment. Nonetheless, in this case they were two different Judges. He further argues that it was natural that the application for the enforcement of a judgment must bear the same suit number with the judgment brought to be enforced; and that it does not amount to reopening a disposed/closed case. He relies on Mokwonye v. Izugbokwu (2004) 1 NWLR (Pt. 855) 635 at 639. In addition, Counsel submits that nothing was added to the original judgment as delivered. It was a monetary judgment and thus the issue of interest must not be left out, unless there was prompt payment of the Judgment sum because interest, like costs, follows events.
Further, Counsel submits that the Court below was right to have upheld the decision of the trial Upper Area Court, having struck out the name of the party that was not in the original judgment. He contends that the name of Ahmed Zarma was included by virtue of his being a former General Manager of Faro Bottling Co. Nig. Ltd and also the present General Manager of Adama Beverages Ltd, even though as nominal party who knew about the judgment debt against Faro Bottling Co. Nig. Ltd. He urged the Court to hold that the Appeal lacks merit, and thus to dismiss same. He prayed the Court to uphold the concurrent judgments of the trial Upper Area Court and the Court below decided on 13-06-13 and 18-09-14 respectively.
Findings:
From the facts of this Appeal and the submissions of both learned Counsel in their respective Briefs of arguments, I am of the opinion that there are three important points that arise which must necessarily be addressed for a proper resolution of the sole issue for determination. They are:
1. In respect of the motion on notice in suit no. CV/FI/TR/51/2000 filed before the trial Upper Area Court on 07-03-13 seeking an enforcement of the judgment of the trial Upper Area Court, upon who did the burden of proof lie; and was this burden discharged to the standard required by law?
2. In the determination of the said motion in suit no. CV/FI/TR/51/2000, wherein “Judgment” was yet again delivered on 13-06-13, was the trial Upper Area Court vested with jurisdiction to make further orders on the judgment outside the relief for the enforcement of its judgment, which the Court below proceeded to uphold in the Appeal before it?
3. Did the difference/inconsistency in the parties in the original Suit No. CV/FI/TR/51/2000 before the trial Upper Area Court 2 decided on 04-11-02 and the parties in the motion arising from the same Suit No. CV/FI/TR/51/2000 decided on 13-06-13 negatively impact on the decision of the latter Court, which should have rendered its decision perverse.
?
The facts in this Appeal are fairly straightforward and not in contest. The Respondent herein, a businessman and owner of Mamiso Memorial Guest Inn, Numan in Adamawa State conducted business with Faro Bottling Co. Nig. Ltd, a registered company dealing in the business of soft drinks production with its head office at Kofare Industrial Area, Jimeta-Yola, Adamawa State, in which the latter supplied the former with soft drinks for his establishment since 1992. After some time, Faro Bottling Co. Nig. Ltd fell on hard times and could no longer supply the Respondent and its other patrons outside Yola town. It therefore approached the Respondent to take on hire his empty bottles crates. The Respondent obliged the Company for some time in an informal arrangement. Thereafter however, the parties entered into a formal agreement on 01-10-94 as in the Exhibit B in respect of hiring the empty crates, which agreement was again reviewed on 16-01-95 as reflected in another agreement, Exhibit C. From June, 1995, the Company, Faro Bottling Co. Nig. Ltd defaulted in supplying the Respondent with the products as agreed in the written agreement, and so the Respondent demanded for a return of his 1,200 crates of empty bottles from the Company. When Faro Bottling Co. Nig. Ltd again failed to return the crates as demanded, the Respondent sued it before the Upper Area Court 2 Yola, wherein he claimed for the following:
(i) “The sum of N680,400.00 being accrued hire rate for 1,200 crates of soft drinks hired by the Defendant from the Plaintiff at the cost of N10,800 per month for the period from June, 1995 to August, 2000;
(ii) The sum of N10,800.00 per month as the hire-rate of the Plaintiff’s 1,200 crates of soft drinks from September, 2000 until the date of Judgment and subsequently final payment;
(iii) Return by the Defendant to the Plaintiff of the 1,200 crates of soft drinks property of the Plaintiff or in the alternative the sum of N540,000.00 being the equivalent value of 1,200 crates at the current rate of N450.00 per crate;
(iv) Interest at the rate of 21% per annum on the sum due from the Defendant to the Plaintiff from June, 1995 until final payment; and
(v) The cost of the action.
After a full hearing, wherein both parties adduced oral and documentary evidence in support of their respective positions, the trial Upper Area Court entered Judgment on 04-11-02 in favour of the Respondent. The Respondent was awarded the total sum of N907,200.00 plus N50,000.00 costs against Faro Bottling Co. Nig. Ltd (pages 11-26 of the printed Record).
Subsequently, Faro Bottling Co. Nig. Ltd again defaulted in off-setting the judgment debt. Thus, the Respondent again filed a motion on notice bearing the same suit number, this time however between “Alhaji Hamidu Galleon and Faro Bottling Co. Nig. Ltd now Adama Beverages Ltd & Ahmed H. Zarma”, before the same Upper Area Court 2 Yola, presided over by a different Judge. This motion, which was commenced on 07-03-13, sought the following reliefs:
1. “An order of this Hon. Court granting leave to the Applicant to enforce Judgment delivered on 4/11/2002 against the Respondents.
2. An order of this Hon. Court deeming all the processes filed and served on the Defendants/Respondents as properly filed and served.
3. An order of the Hon. Court on the Defendants/Respondents to pay all the Judgment debt together with the interest as contained in the Judgment.
4. An order on the Defendants/Respondents to return the 1,200 empty crates belonging to the Plaintiff that is in the custody of the Defendants or its equivalent value at the current market price.
5. Any other order(s) the Hon. Court may deem fit to make in the circumstances of the case.”
The Respondent herein, (as Plaintiff/Applicant), personally deposed to a 14 paragraph affidavit in support of the motion, annexed to which were six exhibits. Relevant averments in the motion have earlier been set out in the body of this Judgment. Exhibit E thereto was the Judgment of the same trial Court delivered on 04-11-02, while Exhibit F was a cheque leaf from Faro Bottling Co. Nig. Ltd in the sum of N300,000.00 dated 02-09-03 to the Respondent’s Lawyer, Messrs L. D. Nzadon & Co., being a part-payment of the judgment debt (see pages 2 to 28 of the Record).
In response, the 2nd Respondent therein, Alhaji Ahmed H. Zarma, filed a counter affidavit deposed to by him personally wherein the substance of the averments in the affidavit were disputed. Relevant portions have also been reproduced earlier in the judgment.
Solely on the affidavit evidence before it, the Upper Area Court 2 Yola (in its second coming), held inter alia as follows in its Ruling on the motion, (which was however described as a “Judgment”) on 13-06-13 (at pages 38-44 of the Record):
“The main issue is whether or not Adama Beverages could be said to be up (sic) shoot of former Faro Bottling Company. The counter affidavit has not disclosed when Faro Bottling Company got wound up and how Adama Beverages Company operates from the premises where former Faro Bottling Company operated… Granted that Faro Bottling Company is distinctly registered as a company under the CAC, so is Adama Beverages Company where is the dividing line? I am of the view that the 2nd Defendant/Respondent are being economically (sic) with the truth as regards status and position of things affecting them… I therefore hold that former Faro Bottling Company 1st Defendant/Respondent is one and the same as Adama Beverages Company Limited. I therefore order as follows:
1. That the judgment of this Court dated 4/11/2002 be enforced on Adama Beverages Company Limited being the Defendants/Respondents in this case.
2. That all the Judgment debt as contained in the Judgment of this Court dated 4/11/2002 be paid to the Plaintiff/Respondent by the 1st Defendant/Respondent Adama Beverages bearing in mind the part payment in Exh. F the balance of the money to be paid attract an interest of 2% from the date of the Judgment 4/11/2002.
3. I order that the 1,200 crates of empty bottles be returned to the Plaintiff/Applicant or its current market value per crate.”
Now the question must first be answered: Upon who lies the burden of proof in the case under consideration and how should it be determined? The law is trite and certain that the burden of first proving the existence or non-existence of a fact lies on the party against whom the Judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. See Sections 131, 132 and 133(1) of the Evidence Act, 2011. If such party adduces evidence which ought reasonably to satisfy the Judge that the fact sought to be proved is established, the burden lies on the party against whom Judgment would be given if no more evidence were adduced, and so on successively until all the issues in the pleadings have been dealt with. See Section 133(2) of the Evidence Act (supra).
Thus, the burden of first proving a fact is usually on the plaintiff who brought the action, though not invariably so. There are times when the burden is on the defendant, depending on the state of the pleadings. Therefore it is valid law that the state of the pleadings materially determines the party who has the burden of proof, otherwise referred to as the onus probandi. Hence, he who asserts a fact must first prove that fact with credible evidence that is relevant to the matter in controversy, not evidence that is irrelevant and inconsequential to the success of the claim. Thereafter, the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendant and vice versa as the case progresses. The general rule which is enshrined in the maxim ei qui affirmat non ei qui negat incumbit probatio has been provided in Sections 131-133 and 136 of the Evidence Act (supra). See Agala v. Okusin (2010) LPELR-221(SC) 1 at 21-22; Chabasaya v. Anwasi (2010) LPELR-839(SC) 1 at 16; Eharevba v. Osagie (2009) LPELR-1044(SC) 1 at 17-18; Abubakar v. Joseph (2008) LPELR-48(SC) 1 at 43; Nwavu v. Okoye (2008) LPELR-2116(SC) 1 at 38; Owie v. Ighiwi (2005) LPELR-2846(SC) 1 at 29; & Osawaru v. Ezeiruka (1978) LPELR-2791(SC) 1 at 13-14.
From the facts in the instant Appeal, the Respondent, having won victory in his suit against Faro Bottling Company Nigeria Ltd in 2002 from the trial Upper Area Court 2 Yola, approached the same Court once again, this time by way of a motion on notice, seeking to enforce the earlier Judgment of the Court. However, it is incontestable that in doing so, the Respondent himself changed the names of the parties. For, whereas in the earlier suit, the parties were: “Hamidu Galleon v. Faro Bottling Co. Ltd”; in the motion on notice for the enforcement of Judgment, the parties were: “Alhaji Hamidu Galleon v. (1) Faro Bottling Co. Nig. Ltd now Adama Beverages Ltd & (2) Ahmed H. Zarma“. Clearly, there is no gainsaying that the parties were different; yet there was nothing in the supporting affidavit and/or exhibits in support thereof explaining how such strangers to the previous proceeding, i.e. “Adama Beverages Ltd and Ahmed H. Zarma” came to be added to the suit as interested parties; neither is there anything contained in the Record of proceedings to show how and when leave was sought and granted to change the names of the parties or to add to the parties to the suit. It is therefore not surprising that, in pronouncing its decision in the Appeal, the Court below found rightly that the 2nd Respondent, Ahmed H. Zarma, was not a proper party to the application.
However surprisingly, the issue of which of the two Companies, (i.e. between Faro Bottling Co. Nig. Ltd on the one hand, and Adama Beverages Ltd on the other), was the proper party before the trial Upper Area Court, was ever settled. Consequently, I have searched high and low throughout all the paragraphs of the affidavit of the Respondent/Applicant in his motion at pages 2-28 of the Record, (which was the subject matter leading to the Appeal before the Court below), and I am unable to find anywhere therein to explain how “Faro Bottling Company Nigeria Ltd” metamorphosed into Adama Beverages Ltd”. To my mind, the Respondent/Applicant simply drew his conclusions from surrounding circumstances within his knowledge and made presumptions without attempting to prove his assertions in any way before the trial Upper Area Court.
Nonetheless, even when the Respondent/Applicant failed to prove his assertion as contained in the title of his motion i.e. “Faro Bottling Company Ltd now Adama Beverages Ltd”, the 2nd Appellant/Respondent, as a staff of the Appellant herein, Adama Beverages Ltd, took no chances but proceeded to debunk the apparent misconception expressly in paragraph 6 (b) & (c) of its Counter affidavit in the following averments:
(b) “That the 1st Defendant/Respondent is a registered Company under Nigerian Law with its Directors existing.
(c) That Adama Beverages Limited is also a registered Company which is independent of the 1st Defendant/Respondent, therefore the two cannot alternate each other.”
It is instructive that the Respondent/Applicant did not bother to depose to a further and better affidavit to contest the assertion in the Appellant/Respondent’s affidavit that ‘Faro Bottling Company Nigeria Ltd’ is a registered Company separate and distinct from ‘Adama Beverages Limited’; nor did it consider it necessary to proffer evidence of any legal acquisition/take over/merger of the Judgment debtor Company by the Appellant herein. That being the case, the very basis/bottom is knocked out of his application to enforce his Judgment against the present Appellant, ‘Adama Beverages Limited’. From a dispassionate assessment of the entire affidavit evidence before the lower Court, the two Companies are evidently two different juristic personalities. This is notwithstanding the erroneous finding of the lower Court in ruling on the application (at pages 42-43 of the Record) as follows:
“The main issue is whether Adama Beverages could be said to be up (sic) shoot of former Faro Bottling Company. The counter affidavit has not disclosed when Faro Bottling Company got wound up and how Adama Beverages came into being. The fact remains that Adama Beverages Company operates from the premises where former Faro Bottling Company operated… Granted that Faro Bottling Company is distinctly registered as a company under the CAC, so is Adama Beverages Company where is the dividing line? I am of the view that the 2nd Defendant/Respondent and the 1st Defendant/Respondent are being economical with the truth as regards status and position of things affecting them… I therefore hold that former Faro Bottling Company 1st Defendant/Respondent is one and the same as Adama Beverages Company Limited.”
I am of the considered opinion that this finding was utterly baseless and founded on mere speculation and conjecture, which cannot take the place of evidence or of proof. The lower Court therefore acted in error when it made an order that the Judgment awarded against one juristic person, which, by the way was never appealed against, be enforced against a different juristic person.
As a matter of fact, there was no attempt on the part of the Respondent/Applicant to adduce any evidence of incorporation of the named Respondent to his application, to wit “Faro Bottling Co. Ltd now Adama Beverages Ltd”. Having so-identified the Respondent by that specific compound name, one would have expected the Respondent/Applicant to have gone further in his affidavit to explain how Faro Bottling Co. Nig. Ltd had been transformed/altered/changed into Adama Beverages Ltd. The burden of proof placed on the Appellant herein by the trial Upper Area Court was certainly misplaced. Instead, the burden of proof rested squarely on the Applicant who made the assertion that the two companies were one and the same, and this burden was never discharged. This is even more so because the 2nd Respondent had explicitly denied that assertion in its counter affidavit before the Court. Indeed, I am at one with the submission of learned Counsel for the Appellant that the Respondent/Applicant could only have discharged the onus of proof placed on him in line with the statement of the law in Afolabi v. WSW Ltd (2012) 17 NWLR (Pt. 1329) 286 at 303, where the Supreme Court held as follows:
“To prove to the satisfaction of the Court that a company had been bought by another company, the person who asserts must place before the Court documents from the Corporate Affairs Commission to justify the assertion. Documents such as:
(i) …
(ii) Document to show acquisition of shares of the 1st Respondent by the 3rd Respondent.
(iii) Filling of relevant papers.”
It is trite that the best evidence of the juristic personality of the Appellant/Respondent as an incorporated person is the production of its Certificate of Registration or Incorporation. See Bank of Baroda v. Iyalabani Company Ltd (2002) LPELR-743(SC) 1 at 20; & Motorcycle Transport Union of Nigeria (MTUN) v. Delta State Motorcyclist Association (DSMA) (2010) LPELR-4503(CA) 1 at 9-10.
In Ostankino Shipping Company Ltd (Owners of the MT. “Ostankino”) V The Owners of MT “Bata 1” (2011) LPELR-4806(CA) 1 at 19-20, this Court, per Mshelia, JCA, held as follows:
“In Nduka v. Ezenwaku (2001) 6 NWLR (Pt. 709) at 517, it was held that:-
“Where the juristic status of a defendant company is put in issue, the plaintiffs must prove that legal personality by producing the company certificate of incorporation…
The Appellant failed to prove the incorporation of the certificate of incorporation… I must add, in agreement with the submission of the Respondent, that the addition of “Ltd” or “Plc” to the name of the firm Commerce Lords Nigeria Ltd would not necessarily mean that it had been incorporated under CAMA.”
In like manner, the Court below fell into the same error when, on an Appeal to it by the Appellant herein, it considered extraneous factors to draw the same conclusion that the two Companies were one and the same. There was certainly no such evidence adduced on the affidavits before the lower Court, and no fresh evidence was adduced before the Court below in its appellate jurisdiction to justify such a finding.
Consequently, from all the above findings, I find I must answer all the questions raised under the sole issue in this Appeal in favour of the Appellant. The Respondent herein failed to discharge the burden placed on it by law to prove that the Judgment Debtor, Faro Bottling Co. Nig. Ltd, had transmogrified into Adama Beverages Ltd, a company incorporated under CAMA, and so should take over the assets as well as the liabilities of the latter.
Secondly, the lower Court acted without jurisdiction when, in ruling on a motion on notice seeking the enforcement of the Judgment of its own Court, it purported to review the its initial Judgment by awarding an additional 2% interest on the Judgment sum given in the Judgment. Thirdly, the parties in the Suit Number CV/FI/TR/51/2000 filed sometime in 2000 but Judgment delivered on 04-11-02 are undoubtedly different from the parties in Motion Number CV/FI/TR/51/2000 filed on 07-03-13 seeking to enforce that Judgment, with nothing on Record to support these changes. In an action founded on contract, as well as on tort, it is essential to state the parties correctly. See: Monier Construction Company Ltd v. Azubuike (1990) LPELR-1910(SC) 1 at 16.
In Bello v. INEC (2010) LPELR-767(SC) 1 at 80-81, the Supreme Court expounded the Law on who a party to a suit is, in these terms per Adekeye, JSC:
“While ‘parties’ in the case of Green v. Green (1987) NSCC pg. 115 at pg. 121 is defined as “persons whose names appear on the record as plaintiff or defendant”, in the case of Fawehinmi v. NBA (No. 1) (1989) 2 NWLR (Pt. 105) pg. 494 at pg. 550 “?? a party is
defined as follows:
“A party to an action is a person whose name is designated on record as plaintiff or defendant, the term party refers to that person(s) by or against whom a legal suit is sought whether natural or legal persons but all others who may be affected by the suit indirectly or consequently are persons interested, and not parties.”
It is therefore for all these reasons that I find I must resolve the sole issue in this Appeal in favour of the Appellant.
In the result, I find this Appeal pregnant with merit. It succeeds and is allowed. Consequently, the Ruling cum ‘Judgment’ of the Upper Area Court 2 Yola in Suit No. CV/F1/TR/51/2000 delivered on 13-06-13, and the Judgment of the Adamawa State High Court sitting in its appellate jurisdiction delivered in Appeal No. ADSY/76M/2013 on 04-11-14 are hereby set aside. No costs are awarded.
Appeal allowed.
SAIDU TANKO HUSAINI, J.C.A.: I had a preview of the Judgment just delivered by my Lord, Jummai Hannatu Sankey, JCA with whom I am in total agreement with her reasoning and conclusions.
Judgment or ruling of a Court is binding only on the person or
party to the suit.
A party to an action is the person whose name is designated on record as Plaintiff or defendant. A party is the person by or against whom a legal suit is sought whether natural or legal persons. See. Fawehinmi v. NBA (No. 1) (1989) 2 NWLR (Pt. 105) 449, 550; Green v. Green. It follows by logical deduction, which also is the state of the law that Judgment can only be enforced against person who are parties to it and not otherwise. From the facts leading to this Appeal it is obvious that Adama Beverages Ltd and Ahmed H. Zarma were not parties to the Suit originated by the Respondent at the Upper Area Court No. 2 Yola against Faro Bottling Company Ltd. in Suit No. CV/FI/TR/51/2000 in which decision was given in favour of the Respondent as the Plaintiff before that Court in the sum of N907,200.00 together with cost assessed at N50,000.00. In his bid to realize the fruits of that Judgment, the Respondent, by the Motion on Notice filed on the 7/3/2013 he sought a variety of orders, principal of which is leave of Court to enforce the Judgment of 4/11/2002 against the Respondents. The present Appellant i.e. Adama Beverages Company Ltd. was one among
the two or three Respondents presented in that application filed at the Upper Area Court. The other person was Ahmed H. Zarma.
It is clear therefore that by the two proceedings i.e. Suit No. CV/FI/TR/51/2000 of 4/11/2002 and Suit No. ADSY/76M/2015 in which ruling was delivered on the 18th September, 2014, the parties are not the same. All the same, the Respondent in this appeal has sought to enforce judgment against person as aforesaid who are neither parties nor privies to the previous decision. He could not do so in the absence of an explanation being offered or given as to why and how Faro Bottling Company Ltd, the defendants/Judgment Debtor in Suit No. CV/FI/TRS/51/2000 suddenly transformed to: “(1) Adama Beverages Company Ltd (2) Ahmed H. Zarma” against whom proceedings were laid for enforcement of the Judgment of the Upper Area Court Yola delivered on 4/11/2002. No such explanation was forthcoming even going by the affidavit evidence in support of the application seeking enforcement of that Judgment. This is to say the least, an abuse of the process of Court. What Constitutes an abuse of process is infinite in law but circumstance where a judicial
process is employed irrationally to the annoyance and irritation and harassment of persons who have no business with matters for which they were sued, should constitute in my view abuse for the misuse of judicial process. See: Edjorode v. Ikine (2001) 12 SC (Pt. 11) 94; CBN v. Saidu H. Ahmed (2001) 5 SC (Pt. 11) 146.
There is no gain saying that Adama Beverages Company Ltd and Ahmed H. Zarma are independent corporate and natural persons distinct from Faro Bottling Company, the company or body adjudged as the party who is indebted to the Respondent. It is that body alone and none other that proceedings for enforcement of Judgment of 4/11/2002 can lie. I rest my case.
For the more detailed reasoning and conclusions as contained in the lead Judgment, I too allow this appeal which has considerable merit. I also abide by other orders in the lead Judgment.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I agree.
Appearances
E. O. Odo, Esq. For Appellant
AND
A. M. Gindau, Esq. For Respondent
