EMESPO J. CONTINENTAL LIMITED & ANOR v. AUTOMOTOR FRANCE S.A
(2016)LCN/9222(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of December, 2016
CA/L/528/2006
RATIO
JURISDICTION: ELEMENTS OF JURISDICTION
Elements of jurisdiction have been settled in the case of MADUKOLU v. NKEMDILIM (1962) 2 ALL NLR 581 and reiterated in the case of INDENPENDENT NATIONAL ELECTORAL COMMISSION & ANOR v. HON. C. I. D. MADUABUM (2008) LPELR-4316 (CA) thus:
“For a Court to be competent and have jurisdiction, the essential elements must be complied with and that is:-
a. It must be properly constituted as regards numbers and qualifications of its members of the bench.
b. The subject matter of the case is within its jurisdiction and there is no feature preventing the Court from exercising its jurisdiction.
c. The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.” PER YARGATA BYENCHIT NIMPAR, J.C.A.
COMPANY LAW: CAN A FOREIGN COMPANY SUE OR BE SUED
The Appellants are not challenging the Constitution of the lower Court nor the subject matter in the claim since the claim is simply a debt recovery claim. The challenge points to the competence of the Respondent to initiate a claim in Nigeria. The Appellants relied heavily on Sections 54, 55 and 56 of the Company and Allied Matters Act to contend that the Respondent cannot initiate any proceedings in Nigeria because it is not registered, as the law requires a foreign company seeking to do business in Nigeria to be registered in Nigeria. I agree that, a foreign company cannot operate in Nigeria without complying with the precondition of registration. The fact of the Respondent being a foreign company is clearly stated in the Statement of claim. However, the Respondent did not aver that it is a foreign company doing business in Nigeria. The provision of Section 54, 55 and 56 of the Company and Allied Matters is clear as it concerns any foreign company wanting to do business or be resident in Nigeria. Trite also is the provision of Section 60 of the Company and Allied Matters Act which is relevant here. It says:
“(a) save as provided in Section 55, 56, 57 and 58 of this Act, nothing in this Act shall be construed as authorizing the disregard by any exempted foreign company of any enactment or rule of law; and
(b) nothing in this Chapter shall be construed as affecting the right or liability of a foreign company to sue or be sued in its name or in the name of its agent.”
Conceded that the Appellants did not contend that the Respondent is doing business in Nigeria, therefore, the provisions of Section 54, 55 and 56 cannot apply to it. It however means that the Respondent being a foreign company not doing business in Nigeria can sue in its name or through its agent. See the case of SAEBY-JERNSTOBERN MASKIN FABRIC A/S v. OLAOGUN ENTERPRISE LTD (1999) LPELR-2973(SC) which held thus:
“The principle of law that a foreign corporation, duly created according to the laws of a foreign State recognized by Nigeria, may sue or be sued in its corporate name in our Courts is part of the common law. The suggestion that a foreign company duly incorporated outside Nigeria should be first registered in Nigeria under the provision of the Companies Act, 1968 (which was then the applicable Statute) dealing with registration of foreign companies, notwithstanding that it does not fall into the category of foreign company as defined by that Act, is too preposterous and patently inimical to international trade to merit any prolonged or serious consideration. It suffices to say the appellant company, which was admitted by the respondent to be limited liability Company with its registered office in Copenhagen properly sued in its corporate name.” See also E.I.L.A. v. C.I.E. LTD (2006) 4 NWLR (Pt. 969) 114.
The challenge to jurisdiction which is fundamentally grounded on the non-registration of the Respondent must fail. The Respondent is competent to initiate an action in the High Court of Lagos State even though a foreign company not registered in Nigeria. The Respondent is not in violation of the Company and Allied Matters Act as canvassed by the Appellants. PER YARGATA BYENCHIT NIMPAR, J.C.A.
CONTRACT: WHAT MAKES UP A VALID CONTRACT
A contract validly entered into which has all the elements of a valid contract must be binding, see ASHAKA v. NWACHUKWU (2013) LPELR-20272 (CA). PER YARGATA BYENCHIT NIMPAR, J.C.A.
EVIDENCE: ESSENCE OF ADMISSION IN LAW
An admission in law was described by the apex Court in the case of U.B.A. v. JARGABA (2007) LPELR-3399 (SC) as a reference to a statement, oral or documentary which suggests any inference as to any fact in issue or relevant fact. Black’s law Dictionary 9th edition defines an admission thus:
An opposing partys admission, which is not considered hearsay if it is offered against that party and is (i) the partys own statement, in either an individual or representative capacity (ii) a statement of which the party has manifested an adoption or belief in its truth. (iii) a statement by one authorized by the party to make such a statement. (iv) a statement by the party’s agent concerning a matter within the scope of the agency or employment. PER YARGATA BYENCHIT NIMPAR, J.C.A.
Before Their Lordships
YARGATA BYENCHIT NIMPARJustice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILLJustice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKURJustice of The Court of Appeal of Nigeria
Between
1. EMESPO J. CONTINENTAL LTD
2. MR. PATRICK OKAFORAppellant(s)
AND
AUTOMOTOR FRANCE S.ARespondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): The Lagos State High Court in a judgment delivered on the 9th February, 2009 entered judgment for the respondent in a claim brought under the Summary judgment procedure thus:
“Final judgment is entered in favour of the claimant in the sum of ?210,516.00 or its Naira equivalent at the prevailing exchange rate as at today, the date judgment is delivered being the outstanding debt owed by the Defendant to the claimant.
The Defendant shall pay interest on the judgment debt at the prevailing rate from July, 2001 till date of judgment and thereafter at 15% until the final liquidation of the judgment debt.”
Dissatisfied with the judgment, the Appellants (defendants at lower Court) filed an Amended Notice of Appeal dated 6th March 2009 and filed on 24th July, 2009 pursuant to order of Court made on the 7th of July, 2014. The Amended Notice of Appeal set out 3 grounds of Appeal and sought for the following reliefs:
1. An order of this Honourable Court allowing the Appeal.
2. An order striking out the case before the lower Court and declaring the whole proceeding at
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the lower Court including the judgment complained of a nullity ab initio.
3. In the Alternative An Order of the Court of Appeal setting aside, dissolving, vacating and reversing accordingly the Ruling/Judgment of the High Court of Lagos State, Badagry Judicial Division, wherein the Honourable Justice E. A. Adebajo gave judgment in favour of the Respondent upon Respondent?s summary Judgment application in suit No. LD/1122/06 against the Appellants on the 9th day of February, 2009.
Brief facts of this appeal are simply that the Respondent, a foreign based company had a business relationship with the Appellants wherein motor spare parts were supplied to the Appellants and to be paid after sales. As time went on, the Appellants defaulted in payments and a Co-operation Agreement was entered into for the outstanding payment which was briefly complied with by the Appellants. The Respondent then initiated an action by way of Summary Judgment procedure. The Appellants filed processes to show that they have a defence to the claim and therefore they have trial issues or defence on the merit including a counterclaim contending that judgment should not be
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entered in favour of the Respondent. The matter was considered, and the lower Court found that there was no defence disclosed, consequently the Court discountenanced the affidavit of the Appellants and went ahead to enter judgment in favour of the Respondent, thus this appeal.
The Appellants though served did not appear in Court on the day of hearing. The Respondent urged the Court to deem the Appellants’ brief as argued in accordance with Order 11 Rule 1 and 5 (2) of the High Court of Lagos State (Civil Procedure) Rules 2004.
The Appellant?s brief of arguments settled by Sam Eneonwuta is dated the 9th September, 2009 filed same day but deemed on the 25/3/14. It distilled 5 issues as follows:
(i) Whether a foreign company in violation of Chapter 3 of the Companies and Allied Matters Act 2004 has the right of action in Nigeria Court?
(ii) Whether the trial Judge has the jurisdiction to deliver the summary judgment complained of in this Appeal?
(iii) Whether indeed there was no triable issues by the Defence
(iv) Whether the summary judgment procedure is permitted where allegation of fraud is part of the
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Applicant?s/Respondent’s pleading?
(v) Whether the Co-operation Agreement on the basis of which the judge granted summary judgment complained of in this Appeal constitutes clear Admission in law?
The Respondent’s Brief settled by E. T. Otuoniyo is dated 23rd April, 2015 filed same day and it formulated 3 issues for determination in this appeal thus:
a. Whether a foreign company has the legal right to sue or institute legal proceedings in Nigeria?
b. Whether the trial judge has jurisdiction to deliver the summary Judgment complained of in this appeal?
c. Whether indeed there were any triable issues raised by the defence?
The Respondent raised a Preliminary objection in its Respondent’s Brief which was argued at pages 7-13 and presented 2 issues for resolution under the preliminary points of law and they are:
i. Whether the Appellants are allowed in law to formulate more issues for determination in their Brief of Argument filed on the 9th September, 2014 in excess of the grounds of appeal comprised in their Amended Notice of Appeal filed on the 24th July 2014?
ii. Whether a party (the Appellant in this case)
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can raise new issues or canvass new points at the Court of Appeal without first seeking and obtaining the leave of the Appellate Court?
As required, the Court shall determine the preliminary objection first before taking any further step in this appeal and it shall adopt the two issues set out by the Respondent in the order presented.
The Appellant did not react to the Preliminary Objection. That notwithstanding, the Court shall determine the preliminary objection on its merit.
The first issue for resolution under the Respondent’s preliminary objection is as follows:
“Whether the Appellants are allowed in law to formulate more issues for determination in their Brief of Argument filed on the 9th September, 2014 in excess of the grounds of appeal comprised in their Amended Notice of Appeal filed on the 24th July 2014
The Respondent submitted that the Appellant contravened settled principles of law by formulating five issues for determination when it filed only three grounds of appeal, thereby formulating more issues in excess of the grounds of appeal. He referred to FABUSOLA v. FAKIYESI (1998) 3 NWLR (Pt. 543) 671,
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OGUNMOLA v. KIDA (2001) 11 NWLR (Pt. 726) 93 and urged the Court to discountenance issues 2 and 4 which is a proliferation of grounds 1 and 2.
RESOLUTION
It is trite that issues for determination must take root from the grounds of appeal in the Notice of appeal, see AKPAN v. BOB (2010) 17 NWLR (Pt. 1223) 421 which held thus:
“For issues placed before an Appeal Court for the determination of an appeal to be competent, they must be formulated from the grounds of appeal. They must be based on, related to or arise from the grounds of appeal. In the case of IDIKA & ORS v. ERISI & ORS (1988) 2 NWLR (Pt. 78) 563, this Court held that issues or questions for the determination are framed from the grounds of appeal before the Court. They do not arise in NUBIBUS from the skies?.
See also YADIS NIG. LTD v. GNIC LTD (2007) ALL FWLR (Pt. 370) 1344, AJIBULU v. AJAYI (2013) LPELR-21860 (SC).
It is therefore against the Rules of Court to have issues outside the grounds of appeal. Such issues would be floating issues without roots or foundation and one might be tempted to call such Ghost issues. Consequently, there cannot be
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more issues than the grounds of appeal named in the Notice of appeal. Such situations present a proliferation of issues. That will mean some grounds would have given birth to twins and that is an abomination and offends the Rules of Court, see TARIBA v. ADEYEMO (2010) 13 NWLR (Pt. 1211) 242 where the apex Court said:
“The settled principle is that it is not proper to proliferate issues for determination to the extent of their outnumbering the grounds of appeal. This is because issues must of necessity be predicated on or arise from grounds of appeal; they can be either equal to or less than the grounds of appeal and not more. Thus while two or more grounds of appeal can, by some dexterity, be considered in an issue, it is not desirable to split a ground of appeal into a number of issues.” See also AGU v. IKEWIBE (1991) 3 NWLR (Pt. 180) 385; ADELAJA v. FANOIKI (1990) 2 NWLR (Pt. 131) 137 and YADIS NIG. LTD v. GNIC LTD (SUPRA).
The effect of proliferation of issues is that any issue not supported by a ground of appeal shall be discountenanced and struck out, see ADAH v. ADAH (2001) LPELR-68 (SC) which held thus:
“In other words, the issues must
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encompass the grounds of appeal otherwise any argument in support of an issue not adequately backed by the ground or grounds of appeal will be discountenanced and struck out by the Court. The authorities are legion, very clear and instructive.”
The Appellants’ Notice of Appeal set out 3 grounds of appeal while the Appellants brief has 5 issues. Definitely, there is proliferation of issues. The practice where an Appellant proliferates issues has been condemned in the case of IWUOHA v. NIPOST (2003) 8 NWLR (Pt. 822) 308 where TOBI, J.S.C (of blessed memory) said:
“Prolixity of issues formulated is not a merit as it is more likely to obscure the core issues to be determined. Multiplicity of issues tends to reduce most of them to trifles. Issues formulated must have the content and character of issues and should be based on substantial law or fact rather than on numerous trifling slips. Appeals are not won on large number or quantity of grounds of appeals and issues. On the contrary appeals are won on the quality of the content of grounds of appeals and issues.”
The Appellants did not indicate from which ground or grounds the issues were
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distilled. I have carefully considered the issues vis–vis the grounds of appeal and clearly issues 1 and 3 have to be discountenanced because they are the issues remotely connected to the grounds when compared with the remaining 3 issues. Issue 2 is questioning jurisdiction, this is a threshold issue and therefore it must be considered. Issue 4 challenges the summary procedure adopted by the Respondent and allowed by the Court. Issues 5 questions the validity of the Co-operation Agreement entered into by the parties and the basis of the judgment.
The objection on this issue succeeds and issues 1 and 3 are hereby discountenanced. The surviving issues are issues 2, 4 and 5 and arguments thereunder.
ISSUE TWO OF THE PRELIMINARY OBJECTION
Whether a party (the appellant in this case) can raise new issues or canvass new points at the Court of Appeal without first seeking and obtaining the leave of the Appellate Court?
The Respondent submitted that the Appellants issues 1, 2, 4 and 5 were not canvassed at all at the lower Court and cannot therefore be entertained by this Court in the first instance without leave. That
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though issues 1 and 2 border on jurisdiction which could be raised at anytime, the apex Court is divided on whether leave of Court is required for a party to raise a fresh issue of jurisdiction on appeal, referring to the Supreme Court case of MKPEN TIZA & ANOR v. IORAKPEN BEGHA (2005) (Pt. 949) 616, BENSON OBIAKOR & ANOR v. THE STATE (2002) 10 NWLR (Pt. 776) 612. The Respondent therefore submitted that since the Court in the case of TIZA v. BEGHA (SUPRA) (the latter of the conflicting decisions) held that leave of the Court must be obtained before canvassing a fresh issue of jurisdiction, failure of the Appellants to obtain leave rendered their submissions with respect to issue 1 and 2 of no consequence. In addition, the Respondent contended that there were some points under the Appellants issue 3 which were not argued before the lower Court and failure to seek and obtain the leave of this Court rendered the arguments thereunder incompetent.
RESOLUTION
It is settled that the Appellants cannot raise fresh issues on appeal without leave first sought and obtained from the Court. The term “Fresh issue” has received judicial attention in the
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case of OLALOMI IND. LTD v. N.I.D.B. LTD (2009) LPELR-2564 (SC) thus:
“I need to say it that a fresh point of law means an issue which was not canvassed at the lower Court and pronounced upon thereat. See F.B.N. v. A.C.B. (2006) 1 NWLR (Pt. 962) 438 at 461-462. Fresh issue must be basically on point of law and must be raised with the leave of Court. See EZEKWU v. UKACHUKWU (2004) 17 NWLR (Pt. 902) 227. Let me further point out that fresh point or issue touching on jurisdiction can be raised at any stage of the proceedings; even for the first time on appeal or at the apex Court. See ELUGBE v. OMOKHAFE (2004) 18 NWLR (Pt. 905) 319.?
It is necessary for leave to be sought for before raising a new or fresh point for the first time on appeal. The Court cannot as an appellate Court sit and resolve issues not pronounced upon by the lower Court. Upon the resolution of issue one above, only issues 2, 4 and 5 survived. Issue 2 is a challenge to jurisdiction. It is now settled that jurisdiction being a threshold issue can be raised at any time before any Court and even at the Supreme Court for the first time and even orally. It is too important that
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the requirement for leave has been discarded, see OWNERS, M.V. GONGOLA HOPE v. S.C. (NIG) LTD (2007) 15 NWLR (Pt. 1056) 187 S.C. in which the apex Court held:
?A matter not raised at and decided by the Court of Appeal may not ordinarily be raised in the Supreme Court for the first time without leave unless it is such matter of importance such as the issue of jurisdiction. Thus jurisdictional issue because of the nature of its fundamental importance to the competence of adjudication is one of the very exceptions where fresh issues may be raised without leave. Issue of jurisdiction may be raised at any stage of the proceedings even at the Supreme Court and even by the Court suo motu, leave may not be necessary because without the judicial competence to adjudicate everything done is a nullity.”
I therefore disagree with the Respondent in its contention that even jurisdictional issues require leave. I can say here that in cases where the fresh issue raised for the first time on appeal touch on jurisdiction, no leave is required. Jurisdiction is too important to be restrained by the requirement of leave, it is the lifeblood of any adjudication
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and without jurisdiction, no matter how brilliant a trial is, it will be a sheer waste of time and declared a nullity. The case of MKPEN v. IORAKPEN (supra) which says that leave is required before an issue of jurisdiction can be raised is no longer the current position of the apex Court and therefore not relevant. Consequently, issue two on jurisdiction is competent.
The next issue is issue 4 which challenges the Summary judgment procedure adopted by the lower Court. The Court indeed entered judgment in favour of the Respondent under a Summary Judgment procedure. The Appellants took steps to indicate its desire to defend the claim but its affidavit of intention to defend was discountenanced for failing to disclose a triable issue. The question of procedure therefore was an issue before the lower Court because if this Court finds that there was a triable issue, then, the procedure leading to the judgment would have been a wrong procedure which will invariably have a detrimental effect on the judgment. Thus the issue also survives.
The third issue is issue 5 which questions whether the co-operation agreement, the basis of the judgment is an
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admission of liability. Here too, the lower Court relied on the agreement to find the Appellants liable on the ground that it was an admission. The Appellants seek the determination of the agreement whether it is truly an admission that can support the judgment. I therefore find the issue competent. The preliminary objection partially succeeds. Issues one and three are hereby struck out.
Moving to the main appeal, the parties now have 3 issues each in this appeal. Having considered the record of appeal, the briefs adopted by the parties at the hearing of the appeal, the issues formulated by the Appellants shall be adopted for resolution in this appeal. They represent the crux of the complaint against the judgment of the lower Court. It will serve the interest of justice to determine the complaint fully. Issues 2, 4 and 5 distilled by the Appellants are renumbered as issues 1, 2 and 3 respectively.
ISSUE ONE
Whether the trial judge has jurisdiction to deliver the summary judgment complained of in this Appeal.
Learned counsel to the Appellants submitted that the Respondent is a foreign company not registered in Nigeria, without a
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Nigerian agent and without due exemption under Section 56 of the Companies and Allied Matters Act 2004 (CAMA). Thus, counsel contended that by virtue of Section 54 and 55 of CAMA, the Respondent is not a juristic person in Nigeria capable of suing and being sued and that the act of the company doing business in Nigeria is void and amounts to an illegality, referring to PAN BISBILDER (NIG.) LTD v. FIRST BANK OF NIGERIA LTD 1 S.C. 71. Furthermore, the Appellants submitted that since the subject matter of the Respondent’s action is void and illegal, the basis upon which judgment was given is void as the Court had nothing upon which to exercise jurisdiction. He referred to INAKOJU v. ADELEKE (2007) 2 MJS 1 and MANAGEMENT ENTERPRISES LTD v. OTUSANYA (1987) 2 NWLR (Pt. 55) 179.
The Respondent on this issue contended that the trial judge had jurisdiction in respect of the matter as the foreign company could properly sue and be sued in Nigeria Courts in so far as it has been duly incorporated according to the laws of a Federal State known and recognized by Nigeria. The Respondent also contended that the Co-operation Agreement entered into between the parties
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was valid, subsisting and enforceable in Nigeria because it was not made to aid the Respondent’s company to carry on business in Nigeria, but was made to enable the Respondent get its outstanding debt owed by the Appellants.
RESOLUTION OF ISSUE ONE
Jurisdiction is the life blood of any adjudication. Superior Courts in a plethora of cases held that jurisdiction is a threshold matter and the life blood of any adjudication. It is a must and a necessity that a Court must be clothed with jurisdiction in any determination of a dispute. See OHAKIN v. AGBASO (2010) 19 NWLR (Pt. 1226) 172 where the apex Court held:
“It is settled law that jurisdiction is the live blood of any adjudication without which no proceeding, however brilliantly conducted by the Court or Tribunal can be valid. It is really a threshold matter or sometimes referred to as a periphery matter to be dealt with once raised or challenged in any proceeding. Without jurisdiction, the whole trial or proceeding of the Court is a nullity however well conducted, that is why jurisdiction is very vital and fundamental to administration of justice in any judicial system?.
The
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importance of jurisdiction cannot therefore be over emphasized. It is never to be taken lightly because it is crucial.
Elements of jurisdiction have been settled in the case of MADUKOLU v. NKEMDILIM (1962) 2 ALL NLR 581 and reiterated in the case of INDENPENDENT NATIONAL ELECTORAL COMMISSION & ANOR v. HON. C. I. D. MADUABUM (2008) LPELR-4316 (CA) thus:
“For a Court to be competent and have jurisdiction, the essential elements must be complied with and that is:-
a. It must be properly constituted as regards numbers and qualifications of its members of the bench.
b. The subject matter of the case is within its jurisdiction and there is no feature preventing the Court from exercising its jurisdiction.
c. The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.”
It is trite that jurisdiction is usually donated by either the Constitution or enabling Statutes. It is therefore not fluid but crystallized. See ADAH v. N.Y.S.C. (2004) 13 NWLR (Pt. 891) 639.
Another feature from where jurisdiction can be discerned is from the claim before the Court.
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Parties could depending on the claim also be a parameter in the determination of jurisdiction. A Court must therefore possess jurisdiction before any outcome can be valid, effective and binding. Generally, the writ of summons and the statement of claim is where the subject matter can be gleaned in the determination of jurisdiction. See TUKUR v. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) and BABA v. BABA (1991) 9 NWLR (Pt. 214) 248.
The Appellants are not challenging the Constitution of the lower Court nor the subject matter in the claim since the claim is simply a debt recovery claim. The challenge points to the competence of the Respondent to initiate a claim in Nigeria. The Appellants relied heavily on Sections 54, 55 and 56 of the Company and Allied Matters Act to contend that the Respondent cannot initiate any proceedings in Nigeria because it is not registered, as the law requires a foreign company seeking to do business in Nigeria to be registered in Nigeria. I agree that, a foreign company cannot operate in Nigeria without complying with the precondition of registration. The fact of the Respondent being a foreign company is clearly
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stated in the Statement of claim. However, the Respondent did not aver that it is a foreign company doing business in Nigeria. The provision of Section 54, 55 and 56 of the Company and Allied Matters is clear as it concerns any foreign company wanting to do business or be resident in Nigeria. Trite also is the provision of Section 60 of the Company and Allied Matters Act which is relevant here. It says:
“(a) save as provided in Section 55, 56, 57 and 58 of this Act, nothing in this Act shall be construed as authorizing the disregard by any exempted foreign company of any enactment or rule of law; and
(b) nothing in this Chapter shall be construed as affecting the right or liability of a foreign company to sue or be sued in its name or in the name of its agent.”
Conceded that the Appellants did not contend that the Respondent is doing business in Nigeria, therefore, the provisions of Section 54, 55 and 56 cannot apply to it. It however means that the Respondent being a foreign company not doing business in Nigeria can sue in its name or through its agent. See the case of SAEBY-JERNSTOBERN MASKIN FABRIC A/S v. OLAOGUN ENTERPRISE LTD (1999)
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LPELR-2973(SC) which held thus:
“The principle of law that a foreign corporation, duly created according to the laws of a foreign State recognized by Nigeria, may sue or be sued in its corporate name in our Courts is part of the common law. The suggestion that a foreign company duly incorporated outside Nigeria should be first registered in Nigeria under the provision of the Companies Act, 1968 (which was then the applicable Statute) dealing with registration of foreign companies, notwithstanding that it does not fall into the category of foreign company as defined by that Act, is too preposterous and patently inimical to international trade to merit any prolonged or serious consideration. It suffices to say the appellant company, which was admitted by the respondent to be limited liability Company with its registered office in Copenhagen properly sued in its corporate name.” See also E.I.L.A. v. C.I.E. LTD (2006) 4 NWLR (Pt. 969) 114.
The challenge to jurisdiction which is fundamentally grounded on the non-registration of the Respondent must fail. The Respondent is competent to initiate an action in the High Court of Lagos State even though a
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foreign company not registered in Nigeria. The Respondent is not in violation of the Company and Allied Matters Act as canvassed by the Appellants.
The other sub-issue related to the challenge to jurisdiction is the competence of the Respondent to enter into the Cooperation Agreement, the basis of the summary judgment. The question is simple, if the Respondent can sue in Nigeria it then means that it is a juristic person capable of going into an agreement. The agreement in question here is the Cooperation Agreement dated 19th July, 2001 entered into by parties to this appeal after the Appellants defaulted in making payments for goods supplied to it. The agreement took into consideration their desire to continue to do business together and the need for the Appellants to pay all outstanding debt. For better understanding, I reproduce the agreement here below:
“During several telephone conversations in July, Joe Levy and myself discussed with you the rules of our future co-operation.
We decided together that the old system on which we have agreed on August 2000 will be maintained because we have experienced its feasibility since nearly one year.
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The principle of the system is that EMESPO company pays full value for each shipment before its arrival at Lagos Port.
An extra payment of a minimum of USD5000 will be paid at the same time in order to pay off gradually the old debt of FF.1.556.363 (as per attached statement dated 19th July, 2001). You promised that you will do your best to increase the amount of this extra payment.
Once EMESPO company has paid the full shipment value and the minimum extra payment, the shipping documents will be released, and a new shipment will be implemented.
As in the past, we will only ship goods to you as per written orders.
Signed
HENDRIC ERTZ PATRICK OKAFOR
AUTOMOTOR FRANCE EMESPO I.J. CONTINENTAL LTD
The Appellants are contending that the agreement is a nullity because the Respondent is not registered in Nigeria. That issue has been resolved in favour of the Respondent. If the Respondent can sue in Nigeria then it goes without saying that it can enter into an agreement. However, can the Appellants be heard to raise the issue of the Cooperation Agreement being a nullity after enjoying all the benefits of a foreign business partner
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releasing goods to them while they paid instalmentally? Definitely, the Appellants cannot benefit from the alleged illegal contract and turn round to resile from it. The law is settled that a party shall not be allowed to benefit from his own wrong and the Court of equity shall not allow the law to be used as an engine of fraud, it is morally despicable and reprehensible. The proposition was restated in the English case of BUSWELL v. GOODWIN (1971) 1 ALL ER 418 @ 421 thus:
“The proposition that a man will not be allowed to take advantage of his own wrong is no doubt a very salutary one and one which the Court would wish to endorse. The effect is usually that a literal meaning on the enactment is departed from where it would result in wrongful self benefit.”
The proposition above was applied in the case ofSOSAN v. H.F.P. ENG. (NIG) (2003) LPELR-7232 (CA) and in the case of KENTUS CHEMICAL AND ALLIED PROJECTS LIMITED v. UNITED BANK FOR AFRICA PLC (2012) LPELR-9836(CA) the Court held that parties who voluntarily enter into a contract cannot resile from it, it held thus:
“It is settled law that parties are bound by the contract they voluntarily
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enter into and cannot act outside the terms and conditions contained in the said contract and the Court is bound to give effect thereto.. …Furthermore, it is pertinent to state that, the Appellant having benefitted from the contract between it and the Respondent cannot be allowed both in law and in equity to contend the genuineness of the Exhibit T.”
The Appellants knew all along that the Respondent was not registered in Nigeria, collected goods it could not pay for and when they entered into an agreement for their own benefit of staying in business and being given a breather for payments of outstanding money, he then shouts illegality? He certainly got it wrong. This is one attitude that contributes to painting the nation black in the eyes of businessmen who would love to do business in Nigeria but are discouraged by such attitude.
Issue one of the renamed issues of the Appellants is resolved against the Appellants.
ISSUE 2
Whether the summary judgment procedure is permitted where allegation of fraud is part of the Applicant’s/Respondent’s pleading?
Here, counsel to the Appellants submitted that where an allegation of fraud
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exists as in this case, same must be proved beyond reasonable doubt in a plenary trial which does not admit of a summary judgment procedure.
The Respondent however did not specifically respond to the issue.
RESOLUTION OF ISSUE TWO
A summary judgment is a procedure provided by the Rules of Court. Order 11 Rules 1 provides as follows:
?1. Where a Claimant believes that there is no defence to his claim, he may file with his Originating Process, the Statement of Claim, list of documents to be relied upon, the depositions of his witnesses and an application for summary judgment which application be supported by an affidavit stating the grounds for his belief, and a written brief in respect thereof.?
While Order 11 Rules 4 and 5(1) of the Lagos State High Court (Civil Procedure) Rules 2004 provides thus:
“4. Where a party served with the processes and documents referred to in Rule 1 of this order intends to defend the suit, he shall not later than the time prescribed for the defence, file:
a. His statement of defence,
b. Depositions of his witness.
c. Exhibits to be used in his defence; and a written
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brief in reply to the application for summary judgment.
5. Where it appears to a judge that a defendant has a good defence and ought to be permitted to defend the claim he may be granted leave to defend.”
From the foregoing, the rules expect a claimant who believes that the defendant has no defence to his claim to institute a claim under the summary judgment procedure. It does not matter whether fraud was pleaded or not in the claim. In so far as the defendant has no defence to the claims against him, the Claimant can validly institute the summary judgment procedure and also get judgment where the judge is of the opinion that the defendant has no good defence.
Indeed, the Respondent pleaded that the 1st Appellant was fraudulent in his dealings with the Respondent and obtaining goods from the Respondent with the intent to swindle the Respondent and deprive it of the proceeds of sale. The particulars of fraud alleged in the Respondent’s Statement of Claim are seen at page 6 of the Record of Appeal. The trial judge was right to have permitted a summary judgment procedure even though allegation of fraud was part of the Respondent’s
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pleading.
The question now is; Did the Appellants raise a triable issue in their defence to the claim? A triable issue was defined in the case MUOBIKE v. NWIGWE (2000) 1 NWLR (Pt. 642) 620 @ 636 as follows:
?A triable issue is an uncontroverted or uncontradicted material allegation contained in the affidavit in support of the notice of intention to defend an action brought under undefended list which averment requires further investigation by the trial Court to unearth its veracity or otherwise. Such material allegation must demonstrate a strong or at least a defence which cannot be dismissed with a wave of the hand.”
The Appellants in the said defence agreed to sign the agreement though they had doubts about their indebtedness. Furthermore, that they were hoping there would be a reconciliation of the account after signing the agreement. They claimed to be entitled to a refund because they had over paid the Respondent.
?The 2nd Appellant on behalf of the 1st Appellant consciously and with his eyes wide opened signed the co-operation Agreement wherein it said the 1st Appellant had an unsettled debt. He willingly signed the said
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agreement. He did not allege any vitiating element that could be attributed to his being hoodwinked into signing the agreement. Then, he also hoped that there would be a reconciliation but never called for it. He exercised a doubt about the outstanding but never expressed it. He alleged to have overpaid the Respondent but did not disclose how and when. It is clear that the Appellants are just fishing for what to say in defence. Having accepted liability in writing, the law places the burden on them to show that the debt was settled. The apex Court in the case of MACAULAY v. NAL MERCHANT BANK LTD (1990) 4 NWLR (PT 144) 283 set out when a defendant would be let in to defend in an action brought under a summary judgment procedure. Furthermore, it said a defence must be sound, the Defendant must show that he has a fair case which is bona fide and that there is a substantial issue to be tried. Such a defence must not be a concoction of facts that cannot convince any reasonable thinking man. General denial is not allowed, it must be supported by particulars which if proved would constitute a defence. The Court held as follows:
“… a defendant who has no real
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defence to the action should not be allowed to dribble and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by delay tactics aimed, not at offering any real defence to the action but at gaining time within which he may continue to postpone meeting his obligation and indebtedness. 2. That, on the other hand, a plaintiff should not be permitted to shut out real (not a sham) defence to an action by his clinging to the assertion that once the defendant has failed to show cause against such a plaintiff?s application by affidavit as required by Order 10 Rule 3, of the Lagos High Court Rules, he is out of Court and must have a judgment signed against him no matter how genuine a defence he has disclosed by means other than by affidavit under that Rule of the Order.”
See also ATAGUBA AND COMPANY v. GURA NIGERIA LIMITED (2005) LPELR-584 (SC).
In N.M.C.B. (NIG) LTD v. OBI (2010) LPELR-2051 (SC) the Court held:
“…the affidavit in support of the Notice of Intention to Defend, must show that the grounds for asking the matter to be heard in defence are not frivolous, vague, or designed to delay the trial of
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the action and it must show that there is a dispute between the parties…”
It is common sense that if a defendant says he has paid off the debt, he has the burden of showing when and how the payment was made. Here, there was nothing to that effect. A mere assertion is not enough. The Appellants failed to do any of the steps expected of him to disclose a defence or a triable issue. The learned trial judge did not see any and I also cannot see any. The alleged defence is a sham and craftily designed to frustrate the Respondent from benefitting from the judgment. These are the kinds of actions that must be condemned in all their ramifications. I find that the claim before the lower Court was one that should be heard under the summary judgment procedure because there is no defence to the action.
The other related issue is the contention by the Appellants that because they had a counter claim, the lower Court should have transferred the matter to the general cause list. The starting point here is simple, it is settled that a counter claim is a separate claim, see OGLI OKO MEMORIAL FARMS LTD v. N.A.C.B. LTD (2008) ALL FWLR (Pt. 419) 400. The
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requirement of the Rules is that a defendant must raise a triable issue before the claim can be heard on the general cause list. Can the presence of a counter claim satisfy the requirement of the rules? That is looking at it from the backdrop of the settled position of law that a counter claim is a separate claim? If the counter claim is a separate claim, then, what is to be heard under Summary Procedure is simply the main claim. The presence of a counter claim should not stop the Court from entering judgment on the summary judgment procedure. This is because a claim under the summary judgment procedure comes up for hearing straight away and it is only the presence of a counter affidavit disclosing a triable issue that will prevent the Court from entering judgment. If there is nothing to enquire into, there will be no need for trial. In the absence of a triable issue raised by the defence, the Court must proceed to enter judgment on the claim and then proceed to determine the counter claim. See THOR LTD v. F.C.M.B. LTD (2005) LPELR-3242(SC) where the presence of a counter claim did not stop the Court from entering judgment in the absence of the defendant
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raising a triable issue to the claim.
A counterclaim comes along the main claim for convenience even as it maintains its distinct character as a separate claim. One point to be made here is that, the trial judge has discretion in determining whether there is a defence to the claim or not. While I agree that the discretion must be judicially and judiciously exercised, I find that the lower Court did not fail in that duty. The trial judge was on solid ground in hearing the suit on the summary judgment procedure. The lower Court exercised its discretion rightly. I resolve this issue in favour of the Respondent.
ISSUE THREE
Whether the Co-operation Agreement on the basis of which the judge granted summary judgment complained of in this Appeal constitute clear admission in law?
It was contended by the learned counsel to the Appellants that the Appellants did not give any notice of admission of the allegations against it pursuant to Order 19 of the Lagos State High Court (Civil Procedure) Rules 2004 and the trial Court was therefore in error to have held that the Co-operation agreement was a clear admission. Counsel further submitted
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that Section 27 of the Evidence Act relied upon by the trial Court relates to confession in criminal law and not admission. He therefore urged this Court to set aside the judgment of the lower Court.
RESOLUTION OF ISSUE THREE
This issue has been answered by the resolution of the issues preceding this one. But for completeness, I will restate the obvious. The Appellants agreed to signing the agreement, which is not vitiated by any factor neither, did the 2nd Appellant allege any of the factors that would whittle down the agreement. Therefore the agreement is valid and binding on the parties. A contract validly entered into which has all the elements of a valid contract must be binding, see ASHAKA v. NWACHUKWU (2013) LPELR-20272 (CA). If therefore the agreement is valid, should it not be enforceable? The Appellants admitted owing even by its pleadings but went on to allege they over paid, if there was no admission of a debt what was the over payment for? Appellant questioned the finding of the lower Court that the agreement is an admission. An admission in law was described by the apex Court in the case of U.B.A. v. JARGABA (2007) LPELR-3399 (SC) as
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a reference to a statement, oral or documentary which suggests any inference as to any fact in issue or relevant fact. Black’s law Dictionary 9th edition defines an admission thus:
?An opposing party?s admission, which is not considered hearsay if it is offered against that party and is (i) the party?s own statement, in either an individual or representative capacity (ii) a statement of which the party has manifested an adoption or belief in its truth. (iii) a statement by one authorized by the party to make such a statement. (iv) a statement by the party’s agent concerning a matter within the scope of the agency or employment.?
The Co-operation agreement therefore fits into the definition of the word admission when considered against the clear acceptance of indebtedness on the part of the Respondent. The Appellants also admitted owing in the pleadings and like observed above, how can one over pay what was not being owed? The equation does not add up and therefore I also find that there was an admission and the agreement is admission of indebtedness, which the lower Court rightly found and I affirm it as so.
?The
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contention that the provision of the Evidence Act relied upon by the trial Judge refers to criminal cases only is not only wrong but is flawed understanding of the law. The Evidence Act applies to all proceedings in our Courts. It is for general application. The facts in this appeal point to nothing less than an admission on the part of the Appellants as to owing the Respondent. The lower Court was right to have found so and to enter judgment on the basis of the admission.
Flowing from the resolution of all issues against the Appellants, this appeal fails and is hereby dismissed for lacking in merit. The judgment of the Lagos High Court delivered on the 9th February, 2009 is hereby affirmed.
Cost of N100,000 in favour of the Respondent.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: The action of the Appellants after taking the benefits of its contract with the Respondent and turning round to allege that the same contract, under whose benefit it had received goods from the Respondent was illegal in order to shriek from its legal obligations to the Respondent is unconscionable. It is simply an attempt to use the Court as an engine for fraud.
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It would have been otherwise had the Appellants had in all due conscience returned all the goods supplied to it by the Respondent rather than keeping those good which they have refused to pay and to allege illegality. People of honour, including both natural and artificial juristic persons, are bound by the terms of their contract. It is the hallmark of honour and integrity to be bound by contracts voluntarily entered, more so from which a person had taken and still retains or enjoys the benefit. The Appellants cannot in good conscience, equity and even in law be allowed to take advantage of their own wrong. I deprecate it as morally despicable. They cannot approbate and reprobate at the same time. See Sosan v. H.F.P. Eng. (Nig.) (2003) LPELR-7232 (CA). See also Kentus Chemical and Allied Products Ltd v. UBA Plc (2012) LPELR-9836 (CA); Buswell v. Goodwin (1971) 1 All ER 418.
My Lords, the real essence of this appeal ought to be within the narrow compass of whether the Appellants made out any defence or triable issue as would have warranted the Court below to transfer of the Respondent?s claim to the General cause list for normal hearing than
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entering judgment under the Summary Judgment procedure pursuant to Order 11 Rule 1 of the Lagos State High Court (Civil Procedure) Rule 2004.
In law, the summary Judgment procedure, which is akin to the procedure under the undefended list except for its application to all types of claims not limited to only liquidated money claim as in Undefended List procedure, is usually aimed at dispensing with dispatch cases which are virtually uncontested or cases where there can be no reasonable doubt that a claimant is entitled to judgment and it is thus inexpedient to allow a Defendant to defend for mere purposes of delay. It is for the plain and straight and not for the devious and crafty. See U.B.A. & Anor v. Jargaba (2007) 11 NWLR (Pt. 1045) 247. See also Agro Millers Limited v. Confidential Merchant Bank (Nig.) Plc (1997) 10 NWLR (Pt. 525) 469.
In law, were there are substantial conflicts as to the facts of the case on the affidavits of the parties, it would be sufficient to hold that the Defendant has raised a triable issue as would require further enquiry and thus a transfer of the matter to the general cause list would be made so that the
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rights of the parties would be enquired into and settled on the merit on the evidence as would be put forward by them at the trial. See Delta Air services Ltd v. Sudan Airways Ltd. (2004) All FWLR (Pt. 238) 697.However, it is not the law that at the mere mention of fraud an application for summary judgment must be refused by the Court and the case transferred to the General cause list for normal full hearing of evidence, oral and or documentary. This is so because, in law an allegation of fraud requires that the particulars of fraud be set out to confer any modicum of seriousness on such an allegation of fraud to warrant further enquiry into it by the Court below. In other words, unless and until an allegation of fraud is expressly made and supported by its particulars it is a non starter as in law mere or bare or banal allegation of fraud, no matter how grave, is of no moment if it is not supported by the relevant particulars as required by law. An allegation of fraud that is merely generic, vague and lacking in the specific and particulars is in law a non-starter and useless. See P.D.P. v. I.N.E.C. & Ors (2012) LPELR-9724 (SC) Nishizawa Ltd v.
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Jethwani (1984) 12 SC 234. See also Wellington v. Mutual Society (1880) 5 App Cas 685; U.B.A. & Anor v. Alhaji Babangida Jangaba (2007) 11 NWLR (Pt. 1045) 247; Sanusi Bro Nig. Ltd v. C. C. E. S.A (2001) 11 NWLR (Pt. 579) 566; Highgrade Maritime Services Ltd v. First Bank of Nigeria Ltd (1991) 1 NWLR (Pt. 167) 290; United Africa Co. Ltd v. Taylor (1936) 2 WACA 67; Alhaji Aminu Ishora v. Union Bank of Nigeria Ltd (2005) 6 NWLR (Pt. 922) 422; Wayne (W. Africa) Ltd v. Ekwunife (1989) 5 NWLR (Pt. 122) 422;
In Ezekiel Okoli v. Morecab Fin. (Nig) Ltd (2007) 14 NWLR (Pt. 1053) 37; Onu, JSC., had aptly put it thus:
?For an allegation of fraud to avail a Defendant in a suit placed on the undefended list, it must be on matters relevant to the case put up by the Plaintiff.?
See also Nishizawa Ltd v. Jethwani, (1984) 12 SC 234; John Holt (Liverpool Ltd) v. John Holt (1961) All NLR (Reprint) 492; Wellington v. Mutual Society (1880) AC 685 @ p. 704; Hajiya Maimuna Garba & Ors v. Alhaji Buba Pate Zaria (2005) 17 NWLR (Pt. 953) 55.
The Court below having found that the Appellant did not make out any allegation against the
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Respondent’s claim, and there being no defence or triable issue, proceeded to enter judgment under the summary Judgment procedure against the Appellants in favour of the Respondent. On the strength of the processes filed by the parties, the purported defence of the Appellants was a sham and morally reprehensible and thus the Court below was right to have proceeded to enter judgment under the summary Judgment procedure against the Appellants. It was indeed in line with the dictates of the law for the Court below to so do. See Nnabude v. G.N.G. (W/A) Ltd (2012) All FWLR (Pt. 619) @ p.1198, where it was held that:
“In determining whether or not the Appellant had put up a good defence to the action filed against him, it did not behove upon a trial judge to consider at that stage whether the defence had actually been established. At that crucial stage of the trial, what was required was simply to look at the facts deposed in a counter-Affidavit, where applicable and determine prima-facie if it affords a defense to the action.”
It is the light of the above few comments of mine and for the more comprehensive reasons marshalled out in the lead judgment
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just delivered by my lord, YARGATA BYENCHIT NIMPAR, J.C.A. a draft copy of which was availed to me in advance to preview and with which I am in complete agreement, that I too hold that the appeal lacks merit and is thus liable to be dismissed. I join my lord in dismissing it and shall abide by the consequential orders made in the lead judgment.
JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the draft of the lead judgment just delivered by my learned brother Yargata Byenchit Nimpar, JCA and I agree with the reasoning and conclusion contained therein.
I adopt the judgment as mine with nothing to add.
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Appearances
For Appellant
AND
Y. A. KADIRI with him, E. J. OTUONIYO and R. E. IDAEHOFor Respondent