EDO CEMENT COMPANY LIMITED & ORS v. PRINCE MAHMOUD SANI ATTA
(2018)LCN/12311(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 19th day of December, 2018
CA/A/156/2013
RATIO
APPEAL: WHERE A PARTY HAS NOT APPEALED AGAINST FINDINGS OF A TRIAL
“The law is settled that where a party has not appealed against a finding of the trial Court, he cannot be heard to question that finding on appeal. The effect of un-appealed finding(s) decision(s) of Court was given by the Supreme Court in the case of Alhaji Mohammed Buhari Awodi & Anor v. Mallam Saliu Ajagbe (2014) LPELR ? 24219 (SC) per Okoro, JSC as follows: “Where a party has not appealed against a finding of the trial Court or the Court of Appeal, he is deemed to have admitted same and as such he cannot be heard to question that finding on appeal. See Dabup v. Kolo (1993) 12 SCNJ 1; Ijale v. Leventis & Co. Ltd (1959) SCNJ; 255, (1959) 4 FSC 108″. See also Adejobi & Anor v. State (2011) LPELR 97 (SC); Alh. Tsoho Dan Amale v. Sokoto LG & Ors (2012) LPELR 784 (SC).” PER STEPHEN JONAH ADAH, J.C.A.
COMPANY LAW: TO PROVE INCORPORATION OF COMPANY
“The proof of incorporation of a company is the production of the Certificate of Incorporation. SeeMagbagbeola v. Sanni (2005) LPELR 1815; NNPC v. Lutin Inv. Ltd & Anor (2006) LPELR – 2024 (SC). The registration status of a registered company is well within the domain of the Corporate Affairs Commission. If anyone wants to find out the registration profile of a corporate citizen, he must refer to the Corporate Affairs Commission.” PER STEPHEN JONAH ADAH, J.C.A.
JURISDICTION: TERRORISM JURISDICTION
“In the case of Usman v. The State (2014) 12 NWLR (Pt. 1421) 207 Rhodes-Vivour, JSC, held that the territorial jurisdiction of a High Court of a state is limited to the territorial boundaries of the state. The appellant contended along this line that a judge in one state has no jurisdiction to decide a case from another state even if the latter is its neighbour. Regardless of our lopsided arrangement about our constitutional dispensation of federalism the facts remain valid that state Courts are bound to respect their territorial jurisdiction and keep to the dictates of the constitution. Territorial jurisdiction of a Court is the power of a Court to hear and determine matters originating from within the circumference of its allotted territory by law. This jurisdiction is excisable over the res, persons and causes. In Dariye v. FRN (2015) LPELR 24398 (SC) Ngwuta, JSC held: ‘Territorial jurisdiction implies a geographic area within which the authority of the Court may be exercised and outside which the Court has no power to act. Jurisdiction, territorial or otherwise, is statutory and is conferred on the Court by the law creating it’.” PER STEPHEN JONAH ADAH, J.C.A.
JURISDICTION: WHEN THE REQUISITE CONDITION PRECEDENT HAVE NOT BEEN MET
“It is the law that once the conditions precedent have not being satisfied before the institution of a suit as in this instant case, the Court will not have the requisite jurisdiction to entertain same. See the case of B.A.S.F Nig. Ltd. vs. Faith Enterprises Ltd (2010) 1 SCNJ 223; Goodwill & Trust Investment Ltd & Anor. Vs. Witt & Bush Ltd (2011) 3 SNJ 241; and Basinco Motors Ltd vs. Woermann Line & Anor (2009) 6 SNJ 222. Accordingly, I resolved issue 1 in favour of the Defendants/Appellants. Consequently, I decline jurisdiction, however, the proper order to make when a Court does not have jurisdiction to entertain a suit is to strike same out and not to dismiss it. See the cases of Lakanmi vs. Adene & Ors (2003) 4 Yar’adua & Ors. (2008) 5 SNJ 1.” PER STEPHEN JONAH ADAH, J.C.A.
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
1. EDO CEMENT COMPANY LTD
2. BUA GROUP OF COMPANIES PLCF
3. H.R.H. ALHAJI A.Y.E DIRISU
4. JULIUS BERGER NIGERIA PLC Appellant(s)
AND
PRINCE MAHMOUD SANI ATTA Respondent(s)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment):
This appeal is against the decision of the Kogi State High Court sitting at Ebogogo, in Suit No: HC/EB/08C/2012; delivered on 29th day of January, 2013 by O.S.A. Obayomi, J.
The Respondent in this appeal was the Plaintiff at the trial Court while the Appellants in this appeal were the Defendants at the trial Court.
The Respondent instituted a civil action against the Appellants claiming inter alia a declaration that the claimant’s Omadivi family holds the customary title in and over the vast parcel of farmland in Ohuadumi area of Okene, Okene Local Government Area of Kogi State. The Appellants on the other hand filed an application to strike out the suit on the ground inter alia that the Ebogogo High Court, Okene, Kogi State lacks the jurisdiction to hear and determine the case. The learned trial judge resolved the issue of jurisdiction in favour of the respondent. The Appellants now aggrieved have lodged an appeal before this Honourable Court against the decision.
The Record of Appeal was transmitted to this Court on 2/4/13. The Appellants’ Brief was filed on 25/2/2014 but duly filed and served on 2/3/15. The Respondent’s Brief was filed on 26/6/15 but deemed properly filed and served on 14/2/18.
The Respondent filed a notice of preliminary objection which was argued at paragraph 4.01 at page 7 to paragraph 4.12 of page 10 of the Respondent’s brief of argument. At the hearing of the appeal on 19/11/2018, the learned senior counsel for the Respondent Dr. S.E. Mosugu, SAN, withdrew the preliminary objection and abandoned the argument of the objection in the Respondent’s Brief.
This Court on that basis struck out the preliminary objection and its argument leaving the substantive appeal which was argued.
The appellants distilled two issues for determination. These issues are couched as follows:
a. Whether the 2nd Defendant is a juristic person capable of being sued.
b. Whether the Ebogogo High Court, Okene, Kogi State has the jurisdiction to entertain a civil suit on a parcel of land in Okpella, Edo State.
These two issues were also adopted by the Respondent for determination of this appeal. These two issues will now be considered.
The appellants had argued on the 1st issue that the 2nd appellant who was 2nd defendant at the trial was not a juristic person. That the respondent took no step to counter this claim by showing the Court a copy of the Incorporation Certificate of the 2nd appellant and that the 2nd appellant cannot in law be regarded a juristic entity. He urged the Court to resolve this issue in favour of the appellant and overrule the trial Court.
For the respondent, it was canvassed that in the processes filed in Court, the 2nd Defendant/Appellant is described as “BUA GROUP OF COMPANIES PLC”. That that description, ex facie, shows that 2nd Defendant/Appellant is a registered company under the Corporate Affairs Commission.But that the appellants are now contending that the 2nd Defendant which has been very clearly characterized as a public limited company is not a juristic person. He submitted that it is trite law that he who asserts must prove the assertion where issues are joined, as in the present case. He relied in the case ofEya v. Olopade (2011) 5 SCNJ 98. That the burden lies on the appellants who felt otherwise to step forward with evidence to show that “BUA GROUP OF COMPANIES PLC” is not a registered Company.
He further relied on the cases of Ephraim Okoli Dim v. Issac Enemuo (2009) 4 SCNJ 1999; and Jolasun v. Napoleon Bamgboye (2010) 12 SCNJ 315.
He urged the Court to resolve this issue in favour of the respondent.
The proof of incorporation of a company is the production of the Certificate of Incorporation. SeeMagbagbeola v. Sanni (2005) LPELR 1815; NNPC v. Lutin Inv. Ltd & Anor (2006) LPELR – 2024 (SC). The registration status of a registered company is well within the domain of the Corporate Affairs Commission. If anyone wants to find out the registration profile of a corporate citizen, he must refer to the Corporate Affairs Commission. To back up the allegation that the 2nd appellant was not registered, it is naturally the business of the ones making the allegation to proof the fact of non-registration. It is not the other way round.
Our law is that anyone who asserts the non-registration must proof the fact of the situation. Since the accuser did not raise sufficient proof of the non-registration, the allegation shall be taken as not proved. I therefore agree with the learned counsel for the respondent that the burden is in the accuser to proof that truly it is not a registered company and not the other way round. It is obvious there is no element of proof to justify it being called a non-registered company. The fact of it being presented on record as a registered body ex facie shows that the 2nd appellant is a registered company until it is rebutted by evidence of non-registration. It is in this respect that this issue is resolved in favour of the respondent.
For the 2nd issue dealing with the territorial jurisdiction of the trial Court, the law is settled that a judge in one state of the Federation of Nigeria cannot assume jurisdiction and exercise jurisdiction over a subject matter in another state of the Federation. In Section 270 and 272 of the Constitution of Nigeria 1999, the High Court of a state is established to function in its own state. In the case of Usman v. The State (2014) 12 NWLR (Pt. 1421) 207 Rhodes-Vivour, JSC, held that the territorial jurisdiction of a High Court of a state is limited to the territorial boundaries of the state. The appellant contended along this line that a judge in one state has no jurisdiction to decide a case from another state even if the latter is its neighbour. Regardless of our lopsided arrangement about our constitutional dispensation of federalism the facts remain valid that state Courts are bound to respect their territorial jurisdiction and keep to the dictates of the constitution. Territorial jurisdiction of a Court is the power of a Court to hear and determine matters originating from within the circumference of its allotted territory by law. This jurisdiction is excisable over the res, persons and causes. In Dariye v. FRN (2015) LPELR 24398 (SC) Ngwuta, JSC held:
“Territorial jurisdiction implies a geographic area within which the authority of the Court may be exercised and outside which the Court has no power to act. Jurisdiction, territorial or otherwise, is statutory and is conferred on the Court by the law creating it”.
The subject matter of this case is land and the appellants who were sued are involved in the operations of the 1st appellant, which is resident within the territory of Edo State of Nigeria. The Respondent indicated in his claim that the land in dispute is not within Edo State but Kogi State territory. In a situation of this nature, what is required is the site plan or the map delineating the land in issue. Until the trial Court has the full opportunity to access this aspect, there is no how the Court will come to terms with location of the land in dispute without a consideration of the evidence of the survey map or site plan. This never happened in this case because the Court never reached the point of receiving and reviewing evidence before taking the preliminary objection. Issues two is resolved against the appellants.
One thing significant in this appeal is the fact that the lower Court declined jurisdiction in its ruling at pages 194 to 208. The trial Court was emphatically clear of the reason for declining jurisdiction. The Court held as follows: –
It is the law that once the conditions precedent have not being satisfied before the institution of a suit as in this instant case, the Court will not have the requisite jurisdiction to entertain same. See the case of B.A.S.F Nig. Ltd. vs. Faith Enterprises Ltd (2010) 1 SCNJ 223; Goodwill & Trust Investment Ltd & Anor. Vs. Witt & Bush Ltd (2011) 3 SNJ 241; and Basinco Motors Ltd vs. Woermann Line & Anor (2009) 6 SNJ 222. Accordingly, I resolved issue 1 in favour of the Defendants/Appellants.
Consequently, I decline jurisdiction, however, the proper order to make when a Court does not have jurisdiction to entertain a suit is to strike same out and not to dismiss it. See the cases of Lakanmi vs. Adene & Ors (2003) 4 Yar’adua & Ors. (2008) 5 SNJ 1.
In view of all I have said particularly on issue 1 which is the most crucial issue, 1, hold that since the write is not competent, particularly for failure to satisfy the conditions precedent to its issuance and service outside jurisdiction, this Court has no jurisdiction to entertain same. Accordingly, the preliminary Objection succeeds in part. Consequently, the write of summons filed vide a motion exparte is hereby struck out for being incompetent.
The notice of appeal filed by the appellants is at pages 201 to 211 of the record of Appeal. There is no respondent’s notice or cross-appeal filed in this appeal. The grounds of appeal filed were three. For the fact that I want to draw a line as to the omission from the notice of appeal the real core decision of the trial Court I will reproduce the grounds as filed. These grounds are worded as follows:
GROUNDS OF APPEAL:
i. The learned trial judge erred in law when he held that the 2nd Defendant i.e. BUA GROUP OF PLC is a limited liability company when there was no proof on record that it was so incorporated at the Corporate Affairs Commission.
PARTICULARS OF ERROR
(a) The Defendants affidavit clearly denied the existence of such a company
(b) The Claimant took no step to counter this claim by a certified copy of the incorporation certificate of the company.
(c) Only juristic entities can be sued in law.
ii. The learned trial judge erred in law when he ruled that he has jurisdiction to entertain the claim when the land in issue is situate at Okpella in Edo State.
PARTICULARS OF ERROR
(a) The Defendants placed before the Court a certified copy of a survey plan produced in accordance with the Provisions of the Northern Region, Western Region and Eastern Region(Definition Boundaries) Proclamation 1954 prepared by the National Boundary Commission which clearly showed the boundary between Edo and Kogi States.
(b) The Claimant in his counter affidavit had no survey plan of any nature to challenge the Defendant’s claim.
(c) An unchallenged affidavit is deemed admitted.
(d) The cause of action is at Okpella in Edo State and not Oguda in Kogi State.
(e) The Defendants have no business whatsoever in respect of any parcel of land at Oguda in Kogi State.
iii. Other grounds of appeal will be filed upon the receipt of the record of proceedings.
No further grounds were filed in this appeal and there is no cross-appeal. It is obvious that the core decision striking out this suit which was for the fact that the condition precedent of serving writ outside jurisdiction with leave or Order of Court was not complied with. This core issue which ought to be the bedrock of this appeal was omitted from this appeal. The law is settled that where a party has not appealed against a finding of the trial Court, he cannot be heard to question that finding on appeal. The effect of un-appealed finding(s) decision(s) of Court was given by the Supreme Court in the case of Alhaji Mohammed Buhari Awodi & Anor v. Mallam Saliu Ajagbe (2014) LPELR ? 24219 (SC) per Okoro, JSC as follows:
“Where a party has not appealed against a finding of the trial Court or the Court of Appeal, he is deemed to have admitted same and as such he cannot be heard to question that finding on appeal. See Dabup v. Kolo (1993) 12 SCNJ 1; Ijale v. Leventis & Co. Ltd (1959) SCNJ; 255, (1959) 4 FSC 108”.
See also Adejobi & Anor v. State (2011) LPELR ? 97 (SC); Alh. Tsoho Dan Amale v. Sokoto LG & Ors (2012) LPELR 784 (SC).
In the instant case, there is no appeal against vital finding in the decision of the trial Court to strike out the case due to failure to obtain Order of Court to serve writ outside jurisdiction. This decision of the trial Court remains valid and binds all the parties. This appeal from the foregoing is lacking in merit. It is hereby dismissed. The appellants are to pay a sum of N150, 000= costs to the respondent.
ADAMU JAURO, J.C.A.: The judgment of my learned brother Stephen Jonah Adah, J.C.A., just delivered, was read by me in draft before today I completely agree with his reasoning and conclusion that the appeal has no merit and deserves to be dismissed.
I adopt the said judgment as mine in dismissing the appeal. I abide by all consequential orders, including that on costs.
PETER OLABISI IGE, J.C.A.: I agree.
Appearances:
Nelson Adogah, Esq. with him, Ralial Dirisu, (Miss)For Appellant(s)
T. E. Mosugu, Esq. with him, O. Alhassan Idoko, Esq.For Respondent(s)
Appearances
Nelson Adogah, Esq. with him, Ralial Dirisu, (Miss)For Appellant
AND
T. E. Mosugu, Esq. with him, O. Alhassan Idoko, Esq.For Respondent
