E. EKESONS BROS (NIG) LTD v. NURTW (2021)

E. EKESONS BROS (NIG) LTD v. NURTW

(2021)LCN/15126(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, March 09, 2021

CA/A/618/2017

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Between

EKESONS BROS NIGERIA LIMITED APPELANT(S)

And

NATIONAL UNION OF ROAD TRANSPORT WORKERS RESPONDENT(S)

RATIO

POSITION OF THE LAW ON THE DUTY OF THE PARTIES WHERE ISSUES HAVE BEEN JOINED IN THE PLEADINGS

The law is trite, parties in a civil proceedings join issue in the pleadings they filed before the trial Court. See Ogunyade vs Oshunkeye (2007) 15 NWLR Pt. 1057 P. 218. Having joined issues in the pleadings the parties are required to adduce cogent and credible evidence to prove the averment of facts in the pleadings in order to substantiate or establish what is in dispute. Sections 131,132, 133, 134 and 136 of the Evidence Act, 2011 (Amended) thus: “131 (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side 133. (1) In civil cases, the burden of first proving 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. (2) If the party referred to in Subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lie 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. (3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence. 134. The burden of proof shall be discharged on the balance of probabilities in all civil proceeding. 136. (1) The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other.” In Veepee Industries Ltd vs Cocoa Industries Ltd (2008) 13 NWLR Pt. 1105 P.491, the Court held that: “In our adjectival law, the plaintiff has the burden to prove his case and the burden is on the balance of probability or preponderance of evidence. He cannot rely on a possible weakness of the case of the defendant.” Again, in Reptico S.A Geneva vs Afrik Bank (Nig) Plc (2013) 14 NWLR Pt. 377 P. 181, the Apex Court when considering the onus or burden of proof in a civil proceedings, when issues have been joined on the pleading espoused thus: “It is a fundamental procedural requirement that when issues are joined by parties in their pleadings, evidence is required to prove them as averred. It is the person upon whom the burden of establishing that issue lies that must adduce satisfactory evidence. In other words, where issues are joined, it is the duty of the plaintiff or the party that would fail if no evidence is adduced or produced in proof of the issue so joined, to adduce the needed evidence to establish the fact in issue. It therefore, necessarily follows that when there is no such evidence, the issue must be resolved against that person. Generally, the nature of the evidence, whether oral or documentary, that will suffice may well depend on the issue in question and the requirement of the law.” PER IBRAHIM SHATA BDLIYA, J.C.A.

WHETHER THE FAILURE OF THE DEFENDANT TO ADDUCE EVIDENCE WILL AUTOMATICALLY MEAN THAT JUDGMENT MUST BE GIVEN IN FAVOR OF A PLAINTIFF

… in the case of Ogunyade vs Oshunkeye (2007) 15 NWLR Pt. 1057 P.215, wherein the Apex Court enunciated that “Failure on the part of a defendant to give evidence does not automatically mean that judgment must be given in favor of a plaintiff, who has the duty to prove his case. Where a plaintiff fails to prove his case on the balance of probability or on preponderance of evidence, his case will be thrown out, notwithstanding the fact that the defendant did not give any evidence. That is the basis of the principle of law that a plaintiff cannot rely on the weakness of the case of the defendant…” (Underlining for Emphasis) PER IBRAHIM SHATA BDLIYA, J.C.A.

PROVISION OF THE LAW ON THE BURDEN OF PROOF AND STANDARD OF PROOF REQUIRED OF ANY PERSON THAT ASSERTS THE POSITIVE

The provisions of Sections 131 to 134 and 136 of the Evidence Act 2011 (Amended) on onus of proof and the standard required of any person/party, that asserts the positive, that is the existence of a thing have been dealt with by the Apex Court and this Court in a litany of decisions. For instance in Fajemirokun vs C.B (Nig) Ltd(2009) 5 NWLR Pt. 1135 P.588 @ 614 the Supreme Court held that by virtue of Sections 136 and 137 (now 133-136) of the Evidence Act, the burden of proof is on he who asserts the positive. InAgwaramgbo vs Idumogu (2008) 5 NWLR Pt. 1081 P. 564 @ 572, this Court per Ogebe JCA (as he then was) stated that every person who wishes the Court to believe in the existence of a particular facts has a duty to prove that fact. InOsadim vs Tawo(2010) 6 NWLR Pt. 1189 P. 153 @ 178 – 180; Orji-Abadua JCA stated that by the provisions of Section 131 (1) of the Evidence Act, whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he assets must prove that those facts exist. In civil proceedings, 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 is produced on either side, regard being had to any presumption that may arise on the pleadings. By the provision of Section 136 of the Evidence Act, 2011, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. See Ojoh vs Kamalu (2005) 18 NWLR Pt. 958 P 523. The law is settled that there is no evidential burden on a party to prove the negative, but the positive. That is to say he who asserts the existence or non-existence of a thing has the burden of proof. In Orji vs Dorji Textiles Mill (Nig) Ltd & Ors (2009) 18 NWLR Pt. 1173 P. 467 @ 469, the Supreme Court Per Tobi J.S.C stated the position of the law thus: “The law is elementary that the burden of proof on any issues rests before evidence is gone into upon the party asserting the affirmative of the issues. In Amgbare vs Sylva (2009) 1 NWLR Pt. 1121 P.1 @ 73 the Court of Appeal re-stated this principles of law thus: that the burden of proof lies on whoever asserts the positive and not the negative.” PER IBRAHIM SHATA BDLIYA, J.C.A.

EFFECT OF THE FAILURE TO PRODUCE CERTIFICATE OF INCORPORATION IN PROVING THE JURISTIC PERSONALITY OF A COMPANY OR A REGISTERED ASSOCIATION

The position of the law on the failure to produce certificate of incorporate by anybody or entity claiming to be a juristic personality has been espoused in the case of Reptico S.A Geneva vs Afribank PLC (2013) 14 NWLR Pt. 1373 P.181, thus: “Where a plaintiff pleaded that it was incorporated as a limited liability company and the defendant categorically denied the averment, the certificate of incorporation should be produced by the plaintiff to prove its status as an incorporated company. It is only by a certificate of incorporation that the plaintiff’s legal personality can be proved in such circumstance. No other document will satisfactorily establish the legal personality of an artificial person such as an incorporated liability company artificial person such as an incorporated liability company than its certificate of incorporation. In the instant case, there was need for the plaintiff to produce its certificate of incorporation, if it was duly incorporated as a limited liability company and nothing else would suffice.” On the whole, no evidence was adduced at the trial before the lower Court, establishing the juristic status of the appellant. The appellant failed to produce its certificate of incorporation, which is the only evidence which can be relied on in proving its status as a juristic entity or body who can sue or be sued in a Court of law. The foregoing preposition of the law on how to prove or establish juristic personality has been adumbrated in the case of Ekweozor vs Reg. Trustees S.A.C.N (2014) 16 NWLR Pt. 1434 P.441, wherein this Court relying on Reptico S.A Geneva vs Afribank Nig Plc (2013) 14 NWLR Pt. 1373 PP. 211-212, held that: “The only way to prove the identity or juristic personality of a company or a registered association is by tendering the original or certified true copy of the certificate of incorporation. In the instant case, since the appellant denied paragraphs 1 and 6 of the respondent pleading, the onus was on the respondent to prove its legal personality.” PER IBRAHIM SHATA BDLIYA, J.C.A.

POSITION OF THE LAW ON THE CAPACITY TO SUE AND BE SUED OF A NON-JURISTIC PERSON OR ENTITY

By the decision of the Court in the case of Witt & Busch Limited vs Goodwill & Trust Investment Ltd (2004) 8 NWLR Pt. 874 P.179, a non-juristic person or entity has no legal capacity to institute a suit in a Court of law, for its lack the capacity to sue or be sued. The Court held thus: “where a plaintiff is a non-juristic person, he has no capacity to sue. Consequently, the Court has no jurisdiction to entertain this suit.” The principle of law espoused in the case of Baroda vs Iyalabani Ltd (2002) 13 NWLR Pt. 785 P. 558 reinforces the position of the law that a non-juristic person or entity cannot sue or be sued in a Court of law, for it has no legal capacity to do so. It was espoused thus: “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. It is only where it is obvious that a party is not a legal person that the matter can be dealt with without much ado and the non-juristic party struck out or the action struck out if such a ‘party’ is the plaintiff … ” (underlining for emphasis) PER IBRAHIM SHATA BDLIYA, J.C.A.

WHAT IS JURISDICTION OF A COURT OF LAW. HOW IS THE JURISDICTION OF A COURT DETERMINED? WHEN DOES A COURT OF LAW HAS THE JURISDICTION TO ADJUDICATE A MATTER.

The answers to these questions, are provided hereunder. The BLACKS’ LAW DICTIONARY, 8th Edition page 867 by Brayan A GERNER defines jurisdiction of Court of law in these words “Court’s power to decide a case or issue a decree.” The Supreme Court in the case of Oduko vs Governor, Ebonyi State (2009) 9 NWLR Pt. 1147 P.441 @ 452 per Aderemi J.S.C, defined jurisdiction of a Court of law thus: “jurisdiction is the legal power or authority which a Court must have to decide matters in a formal way for its decision. The limits of this legal power or authority are circumscribed by the Statute or Act of the National Assembly under which the Court is constituted and may be extended or restricted by similar means” How is jurisdiction of a Court determined or ascertained? Or put it in another way what are the ingredients of jurisdiction of a Court of law. This Court, in the case of Chris vs Ononujju (2008) 9 NWLR Pt. 1093 P. 642 @ 65; per J.C.A said: “The question, therefore is when is the Court competent and has jurisdiction to adjudicate the matter before it? The Supreme Court has spelt out in Madukolu vs Nkemdilim (1962) 1 All NA P. 587 (1962) 2 SCNLR 341, the circumstances under which the Court can be regarded as having competence and jurisdiction. These are where: 1. The Court is properly constituted as regards number and qualification of the members of the bench; 2. The subject matter of the action is within the jurisdiction of the Court and; 3. The case before the Court is initiated by due process of law, or that the condition precedent to the exercise of jurisdiction is complied with.” Therefore, a Court is said to have jurisdiction and therefore competent to determine a suit when: (a.) It is properly constituted as regards number and qualification of the members of the bench and no members is disqualified for one reason or other; (b.) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (c.) The case comes before a Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. These preconditions for a Court to be seized of jurisdiction are conjunctive and the non-fulfillment or absence of any of them would automatically robs the Court of jurisdiction to hear and determine the suit. See Drexel Energy & N.R Ltd vs Trans Inter Bank Ltd (2008) 18 NWLR Pt. 1119 P.388 @ 417. The Apex Court in Roda vs FRN (2015) 10 NWLR Pt. 1468 P.427 @ 465, when considering what is the jurisdiction of a Court of law, enunciated that, jurisdiction is to a Court what a gate is to a premises or door to a house. It remains the nerve centre of adjudication and the blood that gives life to the survival of an action in a Court of law. Jurisdiction is vital and fundamental because it is the basis of the competence of a Court of law to hear and decide a case. Jurisdiction is tantamount to competence and constitutes the basis on which a Court or tribunal tries a case. It is the life line of all trials since any proceedings conducted without it is a nullity. Jurisdiction simply put is the authority that empowers a Court to enquire into and decide matters presented formally for its decision, and where the Court exercises a jurisdiction it is not vested with any proceedings conducted amounts to nothing. See Dapianlong vs Dariye (No.2) (2007) 8 NWLR Pt. 1036 P.332; Opobiyi vs Muniru (2011) 18 NWLR Pt. 1278 P. 387 State vs Onagoruwa (1992) 2 NWLR Pt. 221 P.33 and Egunjobi vs F.R.N (2013) 3 NWLR Pt. 1342 P.534. In JEV vs Iyortyom (2014) All FWLR Pt. 747 P. 778 @ 741, it was propounded that: “jurisdiction is the life wire of a Court as no Court can entertain a matter where it lacks the jurisdiction. The jurisdiction of Court in this country is derived from the Constitution and Statutes. No Court is permitted to grant itself power to hear a matter where it is not so endowed and if it does, the entire proceedings and the judgment derived from it, no matter how well conducted, is a nullity. Therefore, every Court must ensure that it is well endowed with the jurisdiction to hear a matter before embarking on the exercise it could be wasting precious judicious time. See Madukolu vs Nkemdilim (1962) 1 All NLR Pt. 4 P. 587.” PER IBRAHIM SHATA BDLIYA, J.C.A

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Federal Capital Territory, (herein after referred to as the lower) in suit No: FCT/HC/CV/1235/2009, delivered on the 6th day of December, 2016, by Folashade A. Ojo, J (as she then was). The background events culminating to the institution of suit No: FCT/HC/CV/1235/2009, at the lower Court are simple and straightforward. The appellant (as the claimant) alleged that the Abuja Municipal Area Council (AMAC) appointed it to develop and manage the Utako Metro Park, Jabi. However, the respondent (as the defendant) by its activities, made it impossible for commencement of the development of the Motor Park. Consequently, the appellant commenced the said suit against the respondent by a writ of summons filed on the 26th of May, 2009 which was amended on the 28th of May, 2013, seeking the following reliefs:
(1.) A declaration that by dint of the provisions of an agreement between the Abuja Municipal Area Council Abuja and the Plaintiff herein, the management and control of Jabi Motor Park Utako district Abuja is vested on the

Plaintiff to the exclusion of the Defendant.
(2.) A declaration that the presence and or continued presence-of-members, union staff and officials of the Defendant without the authorization or consent of the plaintiff since the commencement of the agreement amounts to trespass.
(3.) An order of this Honourable for an account of all monies, proceeds collected by the Defendant through her agents and union officials from passengers boarding vehicles at the Utako Motor Park to all parts of Nigeria.
(4.) An order of this Honourable Court that the amount so accounted for be paid to the Plaintiff.
(5.) Interest on the above sum calculated at the rate of 10% from the date of judgment until the final liquidation of the judgment sum.
(6.) ALTERNATIVELY:- The sum of N1,000,000,000.00 (One Billion Naira) only being general damages for trespass in that the Defendant without the Plaintiff’s permission moved into the Utako Motor Park in Plaintiff custody, exclusive control and possession for illegal operation.
(7.) Perpetual injunction restraining the defendant, its servants, agents, trustees and/or privies from further acts of trespass into the

Utako Motor Park for illegal operation and/or constituting nuisance to the smooth operation of the Motor Park by the Plaintiff or her authorized agents.

Pleadings were ordered and filled by the parties. The hearing of the suit commenced on the 31st day of May, 2013, whereat, the appellant called one witness to prove its claims. The respondent called five (5) witnesses who testified in support of the defence to the appellant’s claims. After the taking of evidence written address were filed and adopted at the trial by the parties. The learned Judge of the lower Court in a judgment delivered on the 6th of December, 2016, struck out the suit No: FCT/HC/CV/1235/2009, having found that the Court lacked the jurisdiction to adjudicate same. Aggrieved by the decision of the Court, the appellant filed Notice of Appeal on the 24th of April, 2017, challenging the decision of the Court on three (3) grounds of appeal, which are thus:
“GROUNDS OF APPEAL
GROUND ONE (1)
The learned trial Judge of the lower Court erred when he held at page 6 of the judgment thus:
‘The defendant in paragraph 2 of the statement of defence challenged the capacity of

the plaintiff in institute the suit.
The plaintiff in this suit is Ekeson Bros Nig Ltd. That the word Ltd is added to the name of the plaintiff does not make her a legal person. The status has to be proved especially in this case where the defendant has challenged its legal personality.’
At page 8, it was held thus:
‘I am of the candid view that the plaintiff in this action has failed to prove that it has the capacity to institute this action. This being so, this Court lacks the requisite jurisdiction to entertain same.’
At page 9, it was held thus:
‘I find this action incompetent and same is hereby struck out.’
PARTICULARS OF ERROR
1. The defendant did not competently challenge the legal personality of the plaintiff.
2. The defendant abandoned its pleadings where it purportedly challenged the juristic personality of the plaintiff.
3. It is settled law that pleadings are not evidence. The defendant who failed to call any witness, adopt witness statement on oath did not competently challenge the legal personality of the plaintiff.
4. The plaintiff’s witness was never cross examined on the legal

personality of the plaintiff.
5. The learned trial Judge of the lower Court wrongly struck out the plaintiff’s suit upon an incompetent challenge of the plaintiff’s legal personality.
GROUND TWO (2)
The learned trial Judge of the lower Court erred when he held at page 9 of the judgment, thus:
‘A consideration of the other issues is no longer necessary as the Court lacks the requisite jurisdiction to do so.
Consequently, the trial Court refuse to consider and evaluate and ascribe probative value to the evidence led by the plaintiff.’
PARTICULARS OF ERROR
1. The trial Court had the requisite jurisdiction to entertain and determine the suit on the merits.
2. The trial Court ought to have evaluated and ascribe probative value to the evidence led by the plaintiff.
GROUND THREE 3
The judgment is against the weight of evidence.”

The appellant sought the following reliefs in the event of allowing the appeal:
RELIEFS SOUGHT FROM THE COURTR OF APPEAL.
1. An Order allowing the appeal
2. An Order setting aside the judgment of the learned trial Judge of the lower Court delivered on 6th

December, 2016, in suit No: FCT/HC/CV/1235/2009.
3. (a) An Order granting all the reliefs of the Plaintiff/Appellant as constituted before the trial Court in suit No: FCT/HC/CV/1235/2009
ALTERNATIVELY TO RELIEF 3 (a) ABOVE:
3. (b) An Order remitting this suit back to the trial Court for determination on the merit.

The appellant’s brief of argument was filed on the 27th of November, 2017, which was deemed properly filed and served on parties on the 25th of February, 2020. On page 2 thereof, 2 issues for determination of the appeal have been distilled out of the grounds of appeal, which are thus:
(1) WHETHER THE RESPONDENT WHO FAILED TO CALL ANY WITNESS OR LEAD EVIDENCE, COMPETENTLY CHALLENGE THE LEGAL PERSONALITY OF THE APPELLANT?
This issue is distilled from Grounds 1 & 3 of the Notice of Appeal.
(2) WHETHER THE LEARNED JUDGEOF LOWER COURT WAS RIGHT WHEN HE DECLINED JURISDICTION, TO DETERMINE SUIT NO FCT/HC/CV/1235/2009 ON ITS MERIT?
This issue is distilled from Ground 2 of the Notice of Appeal.

The respondent’s brief of argument was filed on the 18th of May, 2020, which was deemed properly filed and served on parties on the 3rd of February, 2021. On page 5 thereof, 3 issues for determination have been culled out of the grounds of appeal as follows:
i. Whether the learned trial Judge was not correct to have held that the respondent competently challenged the legal personality of the plaintiff? Grounds 1 and 3.
ii. Whether the plaintiff/appellant discharged the onus of establishing its Legal personality? Grounds 1 and 3.
iii. Whether the learned trial Judge was not correct to have declined jurisdiction? Ground 2.

A composite analysis of the grounds of appeal and the issues for determination distilled therefrom in the respondent brief of argument clearly reveals that issue No: 2 have been distilled from the same grounds 1 and 3 out of which issue 1 has been culled therefrom. The law is trite, 2 issues for determination cannot be distilled out of the same grounds of appeal. Rather an issue for determination can be distilled from more than one grounds of appeal. Issue 2 contained in the respondent’s brief of argument is therefore incompetent and liable to be struck out. Same is accordingly struck out.

For precision, clarity and comprehensibility, the issues for determination contained in the appellant’s and the respondent’s briefs or argument are hereunder amalgamated and reframed hereunder, which if resolved, would determine the appeal fairly and justly. The issues are these:
I. Whether the learned Judge of the lower Court was right when he held that the appellant did not prove its juristic personality, which was challenged by the respondent, therefore he was not competent in instituting suit No: FCT/HC/CV/1235/2009 before the lower Court.
II. Whether the learned Judge of the lower Court was right when he declined jurisdiction to determine suit No: FCT/HC/CV/1235/2009 on its merit on the ground that the appellant is not a juristic person who can sue or be sued in a Court of law? (Ground 2 of the grounds of appeal)

RESOLUTION OF ISSUES
ISSUE ONE (1)
On this issue, John Ainefor Esq., of learned counsel, who settled the appellant’s brief of argument, contended that the respondent who did not call any witness and did not cross-examine the witness for the appellant, can assert that the legal capacity of the appellant to sue or be sued has been effectively

challenged as held by the lower Court. Learned counsel referred to and relied on the holdings of the lower Court on page 229 of the printed record of appeal to reinforce his contention that the respondent did not cross-examine PW1 nor did he call witness. It is learned counsel’s further submissions that mere pleadings, not supported by evidence are deemed to have been abandoned. The principles of law espoused in the cases of Olokunlade vs Samuel (2011) 17 NWLR Pt. 1276 P. 290 @ 318; Ladunni vs WEMA Bank (2011) 4 NWLR Pt 1236 P.44 @ 63 were cited and relied on to reinforce the submission supra.

On the requirement that pleadings must be proved by evidence in order to be relied on in the decision taking process, learned counsel referred the Court to the cases of Mustapha vs Abubakar (2011) 3 NWLR Pt 1233 P. 123 @ 151 and Uzodinma vs Izunaso (No.2) (2011) 17 NWLR Pt. 1275 P.30 @ 58, and urged this Court to rely on same in resolving this issue under consideration. Learned counsel went further to submit that the respondent did not adduce evidence to rebut the contention that the appellant was registered with the Corporate Affairs Commission as testified by

PW1, therefore, the evidence of PW1 ought to have been relied on by the lower Court in arriving at a decision. The principle of law propounded in the cases of Akinsulie vs Ogunyanju (2010) 12 NWLR Pt. 1261 P.264 @ 284 and UBN Plc vs Ayodare & Ors (2007) LPELR-3391 (SC) were cited to buttress the submissions supra.

Concluding, learned counsel submitted that the learned Judge of the lower Court erred in law when he relied on the submissions of learned counsel to the respondent in arriving at the decision that the appellant did not register with the Corporate Affair Commission, therefore, cannot be a juristic person who can sue or be sued in a Court of law.

For the respondent, Sam Ologunorisa SAN, of learned counsel, did contend that, learned counsel to the appellant did not adopt his final written address before the lower Court as required by law. It is learned senior counsel’s further contention that any written address not formally adopted before the Court by the writer when addressing the Court, is a worthless document, of no relevance, and should be disregarded by the Court. The decisions in the cases of Shalla vs The State (2007) 18 NWLR Pt.

1066 P.253; Maidabo vs The State (2016) LPELR-40245 (CA); Gwar vs Adole (2003) 3 NWLR Pt. 808 P. 516 and Mikailu vs The State (2010) 8 NWLR Pt. 715 P. 461 were referred to and relied on to buttress the submissions supra.

On the contention of the appellant that the respondent did not challenge the juristic personality of the appellant, learned senior counsel did submit that, what matters, at that stage of the proceedings is parties joined issues, having regard to the pleadings? It is senior counsel’s further submission that, it is an examination of the pleadings that can reveal at what stage the parties joined issues, before the taking of evidence to prove what the parties disputed. That by the averments in paragraph 1 of the amended statement of defence, which is a reply to the averment in paragraph 1 of the amended statement of claim, the parties joined issues at this stage, therefore, it cannot be correct or to assert as the learned counsel to the appellant did, that there was no challenge to the juristic personality of the appellant by the respondent. The case of Ogunyade vs Oshunkeye (2007) 15 NWLR Pt. 1057 P.2118, was cited and relied to reinforce the submissions supra.

On who has the burden of proving whether the appellant is a juristic person or not, it is submitted that, he who assert the positive, that is, the existence of a thing or state of affair, has the burden of proof. The principles of law enunciated in the cases of Veepee Industries Ltd vs Cocoa Ind. Ltd (2008)13 NWLR Pt.1105 P. 491; Aromalaran vs Oladele (1990) 7 NWLR Pt. 162 P.559 and Din vs African Newspapers Ltd (1990) 3 NWLR Pt. 139 P.32 were relied on to reinforce the submissions supra. Learned senior counsel further submitted that where issues have been joined on the pleadings, such must be proved by evidence and the party that asserted the existence of what is in dispute, has the burden of adducing cogent and credible evidence to prove his ascertain as propounded in the case of Reptico S.A Geneva vs Afribank Nig Plc (2013) 14 NWLR Pt. 1378 P. 181.

On the failure of the respondent not calling witnesses testify after the close of the appellant’s case, learned senior counsel submitted that, it is a strategy deliberately employed in any proceedings, where the evidence of the party who has the burden of proof has not

established the case in favour of the claimant/plaintiff warranting the defendant to rebut such evidence by the calling of witnesses. He can rest his case on the claimant’s case as the respondent did at the lower Court. The principles of law in Alade vs Akande (1994) 5 NWLR P. 345 @ 474 was cited and relied on to buttress the submissions supra.

On whether a plaintiff is automatically entitled to judgment where the defendant fail to adduce evidence, learned senior counsel submitted that, from it, that the position of the law in such circumstance is to see if the evidence adduced by the claimant proved the case in dispute, if not, the case should be dismissed for want of credible evidence to sustain the case as put up by the plaintiff. The principle of law enunciated in the case of Oluyede vs Access Bank Plc (2015) 17 NWLR Pt. 1481 P. 558, cited and relied on to buttress the submissions supra. In conclusion, learned counsel did adumbrate that though the respondent did not call witnesses, the appellant failed to establish or prove that it is a juristic personality, capable of suing or being sued in a Court of law, having not acquired the status of a

juristic person under the law, as pointed out in the case of Bank of Baroda vs Iyalabani Co Ltd (2002) 13 NWLR Pt. 785 P.558, it is only a juristic person that can sue and be sued which the appellant failed to establish such status.

On page 234 of the printed record of appeal, the learned Judge of the lower Court, in concluding the judgment adumbrated thus:
“The plaintiff in this case has the burden to prove its legal personality by tendering its certificate of incorporation and I so hold. See Summit Finance Co Ltd vs Iron Baba & Sons Ltd (2003) 17 NWLR Pt. 848 P.89 and Ekweozor vs Reg. Trustees S.A.C.N (2014) 16 NWLR Pt. 1434 P. 433 @ 463. She has failed to do so. She had notice of the challenge of its status by the defendant. The law is settled that where the status of a plaintiff is challenged and not proved the action is liable to fail. Failure of the plaintiff to produce its certificate of incorporation to prove its legal capacity to institute this action in the present circumstance robs this Court the jurisdiction to adjudicate over this matter and I so hold.”

Was the learned Judge of the lower Court right in arriving at the decision supra? What is in contention is the legal personality of the appellant in initiating suit No FCH/HC/CV/1235/2009, before the lower Court. It is the submission of learned senior counsel to the respondent that having failed to tender the certificate of incorporation which is the document issued by the Corporate Affair Commission to any person or body who has registered with it, the appellant failed to prove that, it is a juristic personality, who can sue or be sued in a Court of law. On the other hand, learned counsel to the appellant did contend that having not adduced evidence by calling witnesses nor did it cross-examined the witnesses who testified on behalf of the appellant, the respondent did not effectively challenge the capacity of the respondent to commence the said suit at the lower Court.

In order to determine whether the respondent challenged the juristic status of the appellant or not, it is necessary to resort to the pleadings of both parties before the lower Court. The appellant averred as follows in paragraph 1 of the amended statement of claim:
“The plaintiff is a transport company and also engages in the business of development and management of garage and pack.”

The respondent (as the defendant) averred as follows in paragraphs 1 and 2 of the amended statement of defence.
“SAVE AND EXCEPT as is hereinafter admitted, the defendant deny each and every allegation of fact contained in the statement of claim as if same is expressly set out and traversed seriatim.
1) The defendant admits paragraph 1 of the statement of claim only to the extent that the plaintiff is involved in the business of transportation but denies all other averments contained therein.
2) In further response to paragraph 1, the defendant avers that the plaintiff is not an incorporated company, under the Nigerian Laws with the requisite capacity to sue.”

provides thus:
“131 (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side
133. (1) In civil cases, the burden of first proving 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.
(2) If the party referred to in Subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lie 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.
(3) Where there are conflicting presumptions, the

case is the same as if there were conflicting evidence.
134. The burden of proof shall be discharged on the balance of probabilities in all civil proceeding.
136. (1) The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other.”
In Veepee Industries Ltd vs Cocoa Industries Ltd (2008) 13 NWLR Pt. 1105 P.491, the Court held that:
“In our adjectival law, the plaintiff has the burden to prove his case and the burden is on the balance of probability or preponderance of evidence. He cannot rely on a possible weakness of the case of the defendant.”
Again, in Reptico S.A Geneva vs Afrik Bank (Nig) Plc (2013) 14 NWLR Pt. 377 P. 181, the Apex Court when considering the onus or burden of proof in a civil proceedings, when issues have been joined on the pleading espoused thus:
“It is a fundamental procedural requirement that when issues are joined by parties in their pleadings, evidence is required to prove

them as averred. It is the person upon whom the burden of establishing that issue lies that must adduce satisfactory evidence. In other words, where issues are joined, it is the duty of the plaintiff or the party that would fail if no evidence is adduced or produced in proof of the issue so joined, to adduce the needed evidence to establish the fact in issue. It therefore, necessarily follows that when there is no such evidence, the issue must be resolved against that person. Generally, the nature of the evidence, whether oral or documentary, that will suffice may well depend on the issue in question and the requirement of the law.”
Learned counsel to the appellant did submit that the respondent did not adduce evidence in support of his pleadings at the trial before the lower Court. That having not adduced evidence in proof of the averments contained in the amended statement of defence, it cannot be said that it effectively challenged the juristic status of the appellant to institute suit No FCT/HC/CV/1235/2009. It is learned counsel’s further contention that where a party in a civil proceedings neglect or decline to adduce evidence to contradict or

rebut the evidence of the other parties, the party that failed to adduce evidence would be deemed to have accepted the evidence of the other party. That the judgment should be given in favour of the party that had proved its case by the evidence of the witnesses who testified before the Court.
The contention of learned counsel to the appellant in the foregoing paragraph cannot be correct in view of the exposition of the principles of law, in the case of Ogunyade vs Oshunkeye (2007) 15 NWLR Pt. 1057 P.215, wherein the Apex Court enunciated that
“Failure on the part of a defendant to give evidence does not automatically mean that judgment must be given in favor of a plaintiff, who has the duty to prove his case.
Where a plaintiff fails to prove his case on the balance of probability or on preponderance of evidence, his case will be thrown out, notwithstanding the fact that the defendant did not give any evidence. That is the basis of the principle of law that a plaintiff cannot rely on the weakness of the case of the defendant…” (Underlining for Emphasis)

side, regard being had to any presumption that may arise on the pleadings. By the provision of Section 136 of the Evidence Act, 2011, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. See Ojoh vs Kamalu (2005) 18 NWLR Pt. 958 P 523.
The law is settled that there is no evidential burden on a party to prove the negative, but the positive. That is to say he who asserts the existence or non-existence of a thing has the burden of proof. In Orji vs Dorji Textiles Mill (Nig) Ltd & Ors (2009) 18 NWLR Pt. 1173 P. 467 @ 469, the Supreme Court Per Tobi J.S.C stated the position of the law thus:
“The law is elementary that the burden of proof on any issues rests before evidence is gone into upon the party asserting the affirmative of the issues. In Amgbare vs Sylva (2009) 1 NWLR Pt. 1121 P.1 @ 73 the Court of Appeal re-stated this principles of law thus: that the burden of proof lies on whoever asserts the positive and not the negative.”

By the provisions of Section 136(1) of the Evidence Act, 2011 (Amended), and having regards to the averments contained in paragraph (1) of the Amended statement of claim and paragraphs 1 and 2 of the amended statement of defence, issues having been joined, the onus of proving the legal or juristic status of the appellant, lies squarely on him. The appellant called one witness who testified in support of its case before the lower Court. The witness adopted his statement on oath, and tendered documents which were admitted in evidence and marked exhibits 1 – 5. The gist of the evidence of PW1 are as follows. PW1 is the executive assistant (special project) office of the plaintiff. His evidence is that sometimes in July 2006 the plaintiff entered into an agreement with the Abuja Municipal Area Council to develop and manage Utako Motor Park, Abuja and that in line with the agreement the plaintiff began construction work. He said the Abuja Municipal Area Council informed the defendants of the appointment of the plaintiff as operators and developers of the park. It is PW1’s testimony that the defendant who had this information still went into the park to commence operations without the knowledge or permission of the

plaintiff. His further evidence is that the presence of the defendant at the park hampered the operation of the plaintiff who was set to commence construction. He went on further to say that the plaintiff wrote a petition to the Inspector General of Police on the conduct of the defendant. The summary of the evidence of P.W.1 is that the defendant did not allow the plaintiff to function at the Jabi Motor Park pursuant to its agreement with the Abuja Municipal Area Council authorizing it to operate and develop the park.

Throughout the gamut of the testimony of PW1, nothing was said of the appellant having been incorporated as a juristic body or establishment by the Corporate Affairs Commission. The appellant nor the witness PW1, did not tender before the lower Court, any certificate of incorporate with the Corporate Affairs Commission as required by law. The appellant ought to have produced its certificate of incorporation with the Corporate Affairs Commission, he did not. The position of the law on the failure to produce certificate of incorporate by anybody or entity claiming to be a juristic personality has been espoused in the case of

Reptico S.A Geneva vs Afribank PLC (2013) 14 NWLR Pt. 1373 P.181, thus:
“Where a plaintiff pleaded that it was incorporated as a limited liability company and the defendant categorically denied the averment, the certificate of incorporation should be produced by the plaintiff to prove its status as an incorporated company. It is only by a certificate of incorporation that the plaintiff’s legal personality can be proved in such circumstance. No other document will satisfactorily establish the legal personality of an artificial person such as an incorporated liability company artificial person such as an incorporated liability company than its certificate of incorporation. In the instant case, there was need for the plaintiff to produce its certificate of incorporation, if it was duly incorporated as a limited liability company and nothing else would suffice.”
On the whole, no evidence was adduced at the trial before the lower Court, establishing the juristic status of the appellant. The appellant failed to produce its certificate of incorporation, which is the only evidence which can be relied on in proving its status as a juristic entity or body who can sue or

be sued in a Court of law. The foregoing preposition of the law on how to prove or establish juristic personality has been adumbrated in the case of Ekweozor vs Reg. Trustees S.A.C.N (2014) 16 NWLR Pt. 1434 P.441, wherein this Court relying on Reptico S.A Geneva vs Afribank Nig Plc (2013) 14 NWLR Pt. 1373 PP. 211-212, held that:
“The only way to prove the identity or juristic personality of a company or a registered association is by tendering the original or certified true copy of the certificate of incorporation. In the instant case, since the appellant denied paragraphs 1 and 6 of the respondent pleading, the onus was on the respondent to prove its legal personality.”
The respondent (as defendant) at the lower Court, on the pleadings joined issue on the corporate status of the appellant. At that stage, the appellant had the onus of proving or establishing its juristic personality. The appellant failed to adduce evidence, oral or documentarily to establish its incorporation at the Corporate Affairs Commission. No certificate of incorporation was tendered and admitted to prove the assertion by the appellant that it was a juristic entity at the time

it instituted suit No: FCT/HC/CV/1235/2009, at the lower Court. In the end result, I totally agree with the learned judge of the lower Court when he arrived at the decision that the appellant failed to establish its juristic status which has been challenged by the respondent. I resolve issue 1 against the appellant.

ISSUE TWO (2)
Whether the learned Judge of the lower Court was right in declining jurisdiction to determine suit No: FCT/HC/CV/1235/2009, on the merit?
John Ainetor Esq., of learned counsel did submit that the learned Judge of the lower Court erred in law when he declined jurisdiction to determine suit No: FCT/HC/CV/1235/2009, on its merit. It is learned counsel’s further submission that what determines the jurisdiction of a Court of law are the claims and the pleadings, which constitute the originating process of the suit. The principle of law enunciated in the case of Opia vs INEC (2014) LPELR-22185; Balogun vs Ode & Ors (2007) 4 NWLR Pt. 1023 P.1 @ 14 and A.G Anambra State vs A.G Federation (1994) 3 NWLR Pt. 335 P. 655 were cited and relied on to buttress the submissions supra. Learned counsel went on to contend that the

amended statement of claim taken together with the claim and the reliefs sought, contained no pleaded facts which robbed the lower Court of its jurisdiction to adjudicate and determine the said suit on its merit. Concluding, learned counsel adumbrated that the learned Judge of the lower Court ought to have determined the suit on its merit and enter judgment in favour of the appellant, since the respondent did not contradict nor controvert the evidence adduced by the appellant. On the whole, learned counsel did urge that the appeal be allowed, the judgment of the lower Court be set aside, and to proceed to determine the suit No: FCT/HC/CV/1235/2009, on its merit or in the alternative, to remit the case to the lower Court for the determination of the same on its merit.

Sam Ologunorisa SAN, of learned senior counsel submitted that the learned Judge of the lower Court was perfectly right when he declined jurisdiction to determine suit No: FCT/HC/CV/1235/2009, on the merit, in view of the non-juristic personality of the appellant. It is learned senior counsel’s contention that for there to be a competent suit commenced in a Court of law, there must be competent parties thereto as espoused in the case of Baroda vs Iyalabani Ltd (2002) 13 NWLR Pt. 785 P. 558.

Submitting further, learned senior counsel adumbrated that the appellant failed to prove its juristic personality when it did not produce certificate of incorporation issued by the Corporate Affairs Commission as required by law. It is further contended that since the appellant did not adduce evidence at the trial to prove its juristic personality, the learned Judge was right in declining jurisdiction to determine the suit on its merit. In conclusion, learned senior counsel summed up his arguments as follows:
(i.) “The respondent having traversed the first paragraph of the appellant’s amended statement of claim in its amended statement of defence had competently challenged the legal personality of the appellant.
(ii.) The respondent having competently challenged the legal personality of the appellant, and in view of the weight of extant judicial authorities, the learned trial Judge of the lower Court was unassailably right when it held that the burden of proving legal personality lies on the appellant.
(iii.) The appellant having

failed to tender its certificate of incorporation in proof of its legal capacity, the learned trial Judge of the lower Court was right to have held that the appellant never discharged the onus of proof placed on it by law.
(iv.) The appellant having failed to discharge the onus of proof place on it by law, the learned trial Judge of the lower Court was perfectly in order to have declined jurisdiction and struck out the suit for being incompetent.
(v.) Appellant failed woefully to show that the judgment of the learned trial Court is against the weight of evidence.”

In resolving issue 1 against the appellant, I arrived at the decision that, the appellant failed to establish its juristic status, having failed to tender certificate of incorporation issued by the Corporate Affairs Commission. That the only credible evidence required to establish a juristic personality is the certificate of incorporation at the Corporate Affairs Commission which the appellant failed to do so. By the decision of the Court in the case of Witt & Busch Limited vs Goodwill & Trust Investment Ltd (2004) 8 NWLR Pt. 874 P.179, a non-juristic person or entity has no

legal capacity to institute a suit in a Court of law, for its lack the capacity to sue or be sued. The Court held thus:
“where a plaintiff is a non-juristic person, he has no capacity to sue. Consequently, the Court has no jurisdiction to entertain this suit.”
The principle of law espoused in the case of Baroda vs Iyalabani Ltd (2002) 13 NWLR Pt. 785 P. 558 reinforces the position of the law that a non-juristic person or entity cannot sue or be sued in a Court of law, for it has no legal capacity to do so. It was espoused thus:
“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. It is only where it is obvious that a party is not a legal person that the matter can be dealt with without much ado and the non-juristic party struck out or the action struck out if such a ‘party’ is the plaintiff … ” (underlining for emphasis)
The respondent successfully challenged the juristic personality of the appellant as held under issue 1 supra. Having failed to prove its legal capacity to sue or be sued, it

has no capacity to institute any suit in a Court of law. The learned Judge of the lower Court was therefore right when he held on pages 234 to 235 of the printed record of appeal thus:
“In the case of Witt & Busch Ltd vs Goodwill & Trust Investment Ltd (2004) 8 NWLR Pt. 874 P. @ 179 it was held as follows:
Where a plaintiff is a non-juristic person, he has no capacity to sue. Consequently, the Court has no jurisdiction to entertain this suit
I am of the candid view that the plaintiff in this action has failed to prove that it has the capacity to institute this action. This being so, this Court lacks the requisite jurisdiction to entertain same.
In the circumstance, I find this action incompetent and same is struck out. A consideration of the other issues is no longer necessary as the Court lacks the requisite jurisdiction to do so.”
I am in full agreement with the learned Judge of the lower Court when he held that the Court had no jurisdiction to adjudicate on suit No: FCT/HC/CV/1235/2009.

What is jurisdiction of a Court of law. How is the jurisdiction of a Court determined? When does a Court of law has the jurisdiction to

adjudicate a matter. The answers to these questions, are provided hereunder. The BLACKS’ LAW DICTIONARY, 8th Edition page 867 by Brayan A GERNER defines jurisdiction of Court of law in these words “Court’s power to decide a case or issue a decree.” The Supreme Court in the case of Oduko vs Governor, Ebonyi State (2009) 9 NWLR Pt. 1147 P.441 @ 452 per Aderemi J.S.C, defined jurisdiction of a Court of law thus:
“jurisdiction is the legal power or authority which a Court must have to decide matters in a formal way for its decision. The limits of this legal power or authority are circumscribed by the Statute or Act of the National Assembly under which the Court is constituted and may be extended or restricted by similar means”
How is jurisdiction of a Court determined or ascertained? Or put it in another way what are the ingredients of jurisdiction of a Court of law. This Court, in the case of Chris vs Ononujju (2008) 9 NWLR Pt. 1093 P. 642 @ 65; per J.C.A said:
“The question, therefore is when is the Court competent and has jurisdiction to adjudicate the matter before it? The Supreme Court has spelt out in Madukolu vs Nkemdilim (1962) 1 All NA P.

587 (1962) 2 SCNLR 341, the circumstances under which the Court can be regarded as having competence and jurisdiction. These are where:
1. The Court is properly constituted as regards number and qualification of the members of the bench;
2. The subject matter of the action is within the jurisdiction of the Court and;
3. The case before the Court is initiated by due process of law, or that the condition precedent to the exercise of jurisdiction is complied with.”
Therefore, a Court is said to have jurisdiction and therefore competent to determine a suit when:
(a.) It is properly constituted as regards number and qualification of the members of the bench and no members is disqualified for one reason or other;
(b.) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c.) The case comes before a Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

These preconditions for a Court to be seized of jurisdiction are conjunctive and the non-fulfillment or absence of any of them would automatically robs the Court of jurisdiction to hear and determine the suit. See Drexel Energy & N.R Ltd vs Trans Inter Bank Ltd (2008) 18 NWLR Pt. 1119 P.388 @ 417.

The Apex Court in Roda vs FRN (2015) 10 NWLR Pt. 1468 P.427 @ 465, when considering what is the jurisdiction of a Court of law, enunciated that, jurisdiction is to a Court what a gate is to a premises or door to a house. It remains the nerve centre of adjudication and the blood that gives life to the survival of an action in a Court of law. Jurisdiction is vital and fundamental because it is the basis of the competence of a Court of law to hear and decide a case. Jurisdiction is tantamount to competence and constitutes the basis on which a Court or tribunal tries a case. It is the life line of all trials since any proceedings conducted without it is a nullity. Jurisdiction simply put is the authority that empowers a Court to enquire into and decide matters presented formally for its decision, and where the Court exercises a jurisdiction it is not vested with any proceedings conducted amounts to nothing. See Dapianlong vs Dariye (No.2) (2007) 8 NWLR Pt.

1036 P.332; Opobiyi vs Muniru (2011) 18 NWLR Pt. 1278 P. 387 State vs Onagoruwa (1992) 2 NWLR Pt. 221 P.33 and Egunjobi vs F.R.N (2013) 3 NWLR Pt. 1342 P.534.
In JEV vs Iyortyom (2014) All FWLR Pt. 747 P. 778 @ 741, it was propounded that:
“jurisdiction is the life wire of a Court as no Court can entertain a matter where it lacks the jurisdiction. The jurisdiction of Court in this country is derived from the Constitution and Statutes. No Court is permitted to grant itself power to hear a matter where it is not so endowed and if it does, the entire proceedings and the judgment derived from it, no matter how well conducted, is a nullity. Therefore, every Court must ensure that it is well endowed with the jurisdiction to hear a matter before embarking on the exercise it could be wasting precious judicious time. See Madukolu vs Nkemdilim (1962) 1 All NLR Pt. 4 P. 587.”

The appellant, in law, was not a juristic personality at the time it instituted suit No: FCT/HC/CV/1235/2009 before the lower Court. A non-juristic personality cannot institute any matter or suit in a Court of law as held in the cases

Witt & Busch Limited vs Goodwill &Trust Investment Ltd (2004) 8 NWLR Pt. 874 P.179 and Baroda vs Iyalabani Ltd (2002) 13 NWLR Pt. 785 P. 558 where the Court held as follows-
“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. It is obvious that a party is not a legal person that the matter can be dealt with without much ado and the non-juristic party struck out or the action struck out if such a ‘party’ is the plaintiff… ”
The appellant, not being a juristic person, was not capable and competent in initiating suit No: FCT/HC/CV/1235/2009 before the lower Court. The learned Judge of the lower Court, therefore, cannot be vested with jurisdiction to adjudicate on same. I resolve issue 2 against the appellant. Having resolve the 2 issues for determination in the appeal against the appellant, the appeal fails. Same is dismissed in its entirety. The judgment of the lower Court delivered on the 6th day of March, 2016, is hereby affirmed.

ITA GEORGE MBABA, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered by my learned brother, Ibrahim S. Bdliya JCA and I agree, completely, with his reasoning and conclusion, that this Appeal, also bearing the electronic number CA/ABJ/CV/618/2017, is devoid of merit and should be dismissed.

Appellant cannot simply rely on the fact that the Respondent did not lead evidence at the trial to assert that its claims were admitted by Respondent, by so doing; Counsel had argued that pleading of the Respondent was deemed abandoned and so the trial Judge was bound to give judgment to Appellant (Plaintiff) based on the unchallenged evidence given by PW1. Ordinarily, the above submission would represent the law, where the evidence adduced by the Plaintiff satisfied the legal requirement of establishing the claim of the Plaintiff. The law is trite, that a Plaintiff has the duty to prove his claim on the strength of his case and cannot rely on the weakness of the defendant to do so. Thus, even where the defendant chose not lead evidence, having surveyed the case of the Plaintiff to confirm its weak foundation, the failure to lead evidence would not absolve or discharge the Plaintiff from leading credible evidence to establish

his claim. See Akinrimisa & Anor Vs Kure & Ors (2014) LPELR – 23133 CA; Kazeem vs Mosaku (2007) 17 NWLR (Pt.1064) 523; Olodo vs Josiah (2010) 18 NWLR (Pt.1225) 653.

Having joined issues in the pleadings on the challenge of the status of the Appellant to initiate the action, on the ground of not being an incorporated person or legal personality, to sustain the action, in its name, the Appellant had a duty to lead credible evidence to prove its legal personality, as a limited liability company, by producing its certificate of incorporation, in Court. See the case of Dairo & Ors Vs The Registered Trustees of the Anglican Diocese of Lagos (2017) LPELR – 42573 (SC), where it was held:
“The position of the law is that, if there is a pleading that impugns the juristic personality of the Plaintiff, the evidence needed would be to tender the certificate of incorporation at the trial, even if there is evidence of admission about the status of the Plaintiff. See ACB Vs Emostrade Ltd (2002) 8 NWLR (Pt.770) 501.”

My lord, Bdliya JCA has, admirably discussed and demonstrated the law on this point, that failure of the Respondent to lead evidence

on its pleading did not discount the fact that he had joined issues with the Appellant on the challenge to the legal status of the Appellant, placing a burden on the Appellant to produce its certificate of incorporation to qualify it to maintain the action.
I too dismiss the Appeal for lacking in merit.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I was opportuned to read before now, the judgment just delivered by my learned brother IBRAHIM SHATA BDLIYA, JCA who in my ardent view had ably addressed the dual issues that gave life to the determination of this appeal. In agreeing with his reasoning and the conclusion arrived at, I also see no merit in this appeal. To buttress this, let me add my voice to the contention of the Appellant as to whether or not there was a proper challenge to the juristic personality of the Appellant by the Respondent to warrant same becoming an issue for determination before the trial Court. The question that readily come to mind is “What is an issue”

It is of common knowledge that the aim of ordering pleadings is and has always been to secure from the Defendant as many admissions as the fact and circumstance of each

particular given case warrant. By that process the scope of the controversy is narrowed down. Put in another way “narrow the issue”. Now back to the question, what is an issue? Simply put, every disputed question of fact is an issue. In a given case, there is always a crucial and central issue which if decided in favour of the Plaintiff will in itself give him a right to the relief claimed. Where therefore the main issue is decided in favour of the Defendant then the Plaintiff’s case collapses and the Defendant wins. Therefore, an issue of fact arises when fact is maintained by one party and is controverted by the opposite party.
See OVERSEAS CONSTRUCTION CO. LTD V CREEK ENTERPRISES LTD AND ANOR (1985) 12 SC 112, OKOYE V N.C. & F CO. LTD (1991) 7 SC (Pt. 111) 33 at 70-71 and EKE V OKWARANYIA (2001) 4 SC (Pt. 11) 71 at 93.
The challenge by the Respondent to the juristic personality of the Appellant raised the issue as to his competence to sue and also as to whether the Court can entertain his complaint and determine same. Therefore, the jurisdiction of the Court to entertain the suit becomes a cogent issue for determination.

For the foregoing and as a corollary, I endorse the reasoning and conclusion reached in the lead judgment that this appeal fails for lacking in substance and in consequence, I also dismiss it and abide by the orders made therein.

Appearances:

Festus Keyamo, SAN, FCIArb (UK), with him, John Ainetor, Esq. For Appellant(s)

Sam Ologunorisa, SAN, FCIArb, with him, Abdul Fatai Oyedele, Esq., MCIArb For Respondent(s)