MOBIL PRODUCING (NIG.) UNLIMITED v. MR. DENNIS EFFIONG ETUKUDO
(2011)LCN/4377(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 15th day of March, 2011
CA/C/147/2010
RATIO
AMENDMENT OF PLEADINGS: WHETHER THE ORIGINAL PLEADINGS WILL STILL BE MATERIAL BEFORE THE COURT AFTER IT HAS BEEN DULY AMENDED
The effect of the amendment is that once a pleading is amended what stood before the amendment is no longer material before the court and no longer defines the issues to be tried. See AMANAMBU v. OKAFOR (1966) 1 All NLR 205; ROTIMI v. McGREGOR (1974) 11 Sc 133; KATO v. CBN (1999) 6 NWLR (Pt.607) 390; FIRST BANK OF NIG. PLC v. ONIYANGI (2000) 6 NWLR (Pt. 661) 497. PER KUMAI BAYANG AKAAHS, J.C.A.
AFFILIATE OF A FOREIGN INSTITUTION: GROUNDS UPON WHICH AN AFFILIATE OF FOREIGN INSTITUTION CAN DO BUSINESS IN NIGERIA
In any event Edge Enterprises (Nig) is only an affiliate and under the Companies and Allied Matters Act, the company must have been registered, in Nigeria or given an exemption before it can carry on business as an unincorporated company. See Sections 54 and 56 of the Companies and Allied Matters Act (CAMA) Cap 20 Laws of the Federal Republic of Nigeria 2004. PER KUMAI BAYANG AKAAHS, J.C.A.
DUTY OF SURVIVING PARTNER: DUTY OF A SURVIVING PARTNER TO REPORT, WITHIN THREE MONTHS, THE DEATH OF A PARTNER TO THE REGISTRAR OF BUSINESS NAMES
If indeed the respondent is a partner in Edge Enterprises (Nig) he was required by Section 578 CAMA to within three months of the death of George Edem Etudor report same to the Registrar of Business Names who on receipt of such notice is mandated by Section 578 (2) to delete the name of the deceased from the register. It is not material as argued by learned counsel for the respondent that Edge Enterprises (Nig) is still a going concern. This is to ensure that a non existent partner does not take advantage to sue or be saddled with any responsibility of the firm. PER KUMAI BAYANG AKAAHS, J.C.A.
CONTRACT DOCUMENT: THE FORMAT FOR ATTESTATION CLAUSE IN CONTRACT DOCUMENT WHERE ONE OF THE PARTIES IS AN INCORPORATED COMPANY
In a proper contract document where one of the parties is an incorporated company, the attestation clause should be that the seal of the company is affixed in the presence of the witness and not an employee signing on behalf of the company. PER KUMAI BAYANG AKAAHS, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
MOBIL PRODUCTNG (NIG.) UNLIMITED Appellant(s)
AND
MR. DENNIS EFFIONG ETUKUDO
(Trading under the name and Style of Edge Enterprises (Nig) Respondent(s)
KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Interlocutory Ruling of Mbaba J. of the High Court of Akwa lbom state, Eket delivered on 15/2/2010 in suit No.HEK/6/2008. The parties filed and exchanged pleadings with the Defendant amending its Statement of Defence and the Plaintiff allowed to file consequential amendment to his Statement of Claim. Thereafter the Plaintiff testified and tendered 20 Exhibits. The matter was then adjourned for cross-examination. It was at this stage that the defence filed a motion on notice praying for “an order striking out the suit herein on the ground that the action is not properly constituted and the Honourable Court lacks jurisdiction to entertain the same in that the Plaintiff is not the proper party to initiate, commence or institute the suit and consequently has no cause; or right of action against the Defendant.”
In his Ruling dismissing the preliminary objection on 15/2/2010 the learned trial Judge found that it was on the basis of the letter of introduction dated 26/10/2010 (sic) that the Defendant signed the contract, the subject matter of the suit with the Plaintiff and went on to hold that the law recognises the person who signed the contract (Exhibit JO1) with the Defendant, and not the name of the company he used (the same not being a limited liability company) as the party to the deal (see page 109 lines 11 – 15 of the records).
On 12/7/2010 the Appellant obtained leave to appeal and filed its Notice on 13/7/2010 containing 4 grounds of appeal. The appellant distilled a lone issue from the grounds of appeal which is “Whether the learned trial Judge was right in holding that the Plaintiff, a Manager of Edge Enterprises (a business name owned by late George Edem Etudor) can in his own name sue to enforce the contract the subject matter of the action between the Appellant and Edge Enterprises.”
The Respondent also formulated the following sole issue for determination:
“Whether the learned trial court was right when it held that the law recognises the person who signed this contract (Exh. JO1) and not the name of the company he used, (the same not being a limited liability company) as the party to the deal.”
Both parties cited and relied on ATAGUBA & CO. v. GURA NIG. LTD. (2005) 21 NSCQR 720 at 739; (2005) 8 NWLR (Pt.927) 429 when canvassing their respective positions in the appeal. For the appellant it was submitted that only parties to a contract can sue or be sued in respect of the same and that lack of locus standi affects the jurisdiction of the court to adjudicate on the matter. Learned counsel for the Appellant further relied on the following cases for his submission:
UNIVERSITY OF JOS & ANOR. v. CARLEN NIG. LTD. (1992) 5 NWLR (Pt. 241) 352; PHILIP EBHOTA v. PLATEAU INVESTMENT & PROPERTY DEVELOPMENT CO. LTD. (2005) MJSC Vol. 11 page 36; (2005) 15 NWLR (Pt.948) 266; GHUBA IKPEMU v. ACB LTD, (1965) NMLR 374; ADESOKAN v. ADETUNJI (1994) 5 NWLR (Pt.346) 540 and OLORIEDE v. OYEBI (1984) 1 SCNLR 390. Learned counsel therefore asserted that the statement by the learned trial Judge that the law recognizes the person who signed the contract with the Defendant and not the name of the company he used as the party to the deal cannot be the true position of the law since the persons who signed a contract are not necessarily the parties to the contract but the actual persons whose names appear as parties to the said contract. He buttressed this point by contending that if this line of argument is followed to its logical conclusion, the suit ought to be between the two managers of the parties namely Mr. Dennis Effiong for Edge Enterprises and Mr. J. B. Effiong for Mobil Producing Nig. Unlimited.
Learned counsel for the Respondent submitted that unlike an incorporated entity, the proprietor of a firm is not an agent of the firm but enters into a contract to bind himself and such contract can be enforced against the proprietor. If the proprietor authorizes another person to act for him, that person has all the powers and capacity to enter into a contract in the name of the firm and to enforce it personally. It is therefore the contention of learned counsel that while it is true that it was Edem George Etudor who gave Dennis Effiong Etukudo power and authority to use the firm’s name Edge Enterprises Nigeria for the purpose of executing contracts with the defendant pursuant to Exh. ‘JO4’, the said Dennis Effiong Etukudo entered into the contract in his own name and signed Exh. ‘JO1’ by himself, he can sue and be sued on the transaction. Relying on OGUEJIOFOR v OSAKA (2000) 3 SC 1, learned counsel submitted that parties are bound by the contents of any written agreement duly executed by them and while a corporate entity has legal personality and can sue and be sued in its corporate name, an unincorporated association must of necessity act through its appointed representative. Learned counsel then referred to Section 573 (2) CAMA which permits another person other than the owner of the business name to carry on the business in that person’s name provided he complies with Section 577 (1) CAMA and submitted that since Edge Enterprises Nig. was still carrying on business, it is erroneous to contend that the business ceased to exist and so should be struck off from the register. Finally he relied on OSHEVIRE v. TRIPOLI MOTORS (1997) 4-6 SCNJ 246 to submit that there was a tripartite agreement between the respondent, Edge Enterprises Nigeria and Mobil Producing Nig. Unlimited which gave the respondent the locus to sue on the agreement.
If the initial pleadings in this suit had not been amended, this appeal would be unnecessary because the Plaintiff had pleaded (which facts were admitted) that he was a registered contractor with the defendant and was trading under the name and style of Edge Enterprises (Nig) and that sometimes on 1st June, 2004 he was awarded a contract for, the replacement of the entire back wall of Generator building at Utue PP at the cost of N2,423,281.50. This position however was altered when the Defendant denied paragraphs 1 and 3 of the Statement of Claim in its paragraphs 2 and 3 of the Amended Statement of Defence filed on 27/1/09 wherein the Defendant averred as follows:-
“2. The Defendant denies paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 19, 14, 15, 16, 17, 18 and 19 of the Plaintiff’s statement of Claim and puts the Plaintiff to the strictest proof thereof
3. The Defendant denies that the Plaintiff carries on business as Edge Enterprises Nigeria and will at the trial request the Plaintiff to produce his original certificate of registration with Corporate Affairs Commission.”
The effect of the amendment is that once a pleading is amended what stood before the amendment is no longer material before the court and no longer defines the issues to be tried. See AMANAMBU v. OKAFOR (1966) 1 All NLR 205; ROTIMI v. McGREGOR (1974) 11 Sc 133; KATO v. CBN (1999) 6 NWLR (Pt.607) 390; FIRST BANK OF NIG. PLC v. ONIYANGI (2000) 6 NWLR (Pt. 661) 497.
In paragraph 4 of the Amended Statement of Defence, the Defendant pleaded thus:
“4. In response to paragraphs 3, 4 and 5, the Defendant states that the only agreement the plaintiff had with the Defendant is as contained in the agreement dated 11th June, 2004 with the annexures-thereto.
The Defendant will rely on the said agreement and the work order dated 14th June, 2004.”
The documents referred to as Exhibits JO2, JO3, JO1 and JO4 in the Ruling were tendered in evidence by the Plaintiff and have been marked as Exhibits 1, 2, 3, and 5 respectively. Exhibit 5 is crucial to the consideration of the arguments of counsel in this appeal. It was written on the headed paper of Edge Enterprises (Nig) and signed by Edem G. Etudo/CEO on 26/10/2001 and it reads thus:
“TO WHOM IT MAY CONCERN
This is to confirm that Mr. Dennis Effiong Etukudo has been employed to represent Edge Enterprises (Nig) as her Manager. We therefore solicit your kind cooperation and assistance to him. Thanks.
Truly yours
Signed: Edem G. Etudo/CEO
For Edge Enterprises (Nig,)”
Exhibit 1 was addressed to the Managing Director Edge Enterprises and it was signed by Chief J. B. Effiong the Manager, Field Services Procurement of Mobil Producing Nigeria Unlimited and it goes as follows:
“Dear Sir,
REPLACEMENT OF THE ENTIRE BACKWALL OF GENERATOR BUILDING AT UTUE PP
We write to inform you that your Company has been awarded the above project and to invite you to our office at the New Admin. Building, QIT for the execution of the agreement on the 7th June, 2004. You are also requested to bring a copy of your workmen’s compensation insurance policy from a reputable insurance firm when coming for the execution of the agreement.
We appreciate your interest in our request and look forward to working with you.
Very truly yours,
Sgd: Chief J. B. Effiong,
Manager (Field Services Procurement)”,
Exhibit 3 was executed on 11/6/2004 (and not 7/6/2004 as stated in Exh. 1)
between the Plaintiff who signed for and on behalf of Edge Enterprises and J. B. Effiong who signed for and on behalf of Mobil Producing Nigeria Unlimited. It is reproduced as follows:-
“REPLACEMENT OF THE ENITRE BACK WALL OF GENERATOR BUILDING AT UTUE PP”
1. This set forth the Agreement under which you (hereinafter “CONTRACTOR”) shall provide to Mobil Producing Nigeria Unlimited, (hereinafter “COMPANY”) the above referenced services, described in the attached Exhibit ‘A’ (hereinafter “SERVICES”), in accordance with the conditions stipulated below.
2. As full compensation for Contractor’s performance of Services and all obligations under this Agreement, Company will pay contractor the Contract Price as set forth in Exhibit ‘B’, attached hereto.
3. Contractor shall commence Services upon signing this Agreement and shall perform Services with diligence until they have been completed.
4. Company’s Designated Representative, J. B. Effiong, or other such person as may be subsequently designated in writing by company, shall have authority to act for Company with respect to all maters pertaining to Services and Contractor performance hereunder.
5. This letter together with the “Terms and Conditions” attached to this letter, Exhibit ‘A’, Exhibit ‘B’ and the Additional Articles in Exhibit ‘C’ (if any) shall constitute this Agreement. The order of precedence is (1) this letter, (2) Additional Articles in Exhibit ‘C’ (if any), (3)the Terms and conditions attached to this letter, and (4) Exhibits A and B.
If Contractor agrees to all the foregoing, please so indicate by signing and returning to us one original of this letter, whereupon this letter will constitute an Agreement as of the day and year first written above between Contractor and Company to the above effect.
Very truly yours
Signed by
For and on Behalf of
MOBIL PRODUCING NIG. UNLTD
NAME: J. B. Effiong
TITLE: Manager, Field Serv. Procurement.
IN THE PRESENCE OF:
ETIM O. AKAISO
(Name of Witness)
Witness Signature:
Address: MOBIL PROD. NIG. UNLTD.
Field Services Procurement – QIT
Title: Procurement Services Advisor
Accepted and agreed to:
Signed by
For and on behalf of EDGE ENTERPRISES
NAME: DENNIS E. ETUKUDO
TITLE: MANAGER
IN THE PRESENCE OF
ISAIAH B. AKPAN
(Name of Witness)
Witness Signature
Address: 17 Akpan Udo Ekpo Rd.
Ikot Akpan Ekpo.
Title: M/D”.
When the Plaintiff testified on 10th June, 2009 he stated as follows:
“I told the court that I registered as a contractor in the name of Edge Enterprises Nigeria. It is a limited liability company.
It is an enterprise owned by George Idem Etudor (late) (underlining mine for emphasis) (see page 92 lines 14 – 18 of the records).
This is an admission against interest and knocks off the argument put forward by learned counsel for the Respondent that if the proprietor authorizes another person to act for him, that person has all the powers to enter into a contract in the name of the firm and to enforce it personally. This submission is only true to the extent that the contract is enforceable by and against the proprietor as a disclosed principal but the agent cannot take advantage to enforce the contract in his own right unless he has been given a power of attorney to do so. The submission that there is a tripartite agreement between the Respondent, Edge Enterprises and the Appellant (Mobil Producing Nigeria Unlimited) cannot hold water.
The Respondent did not lead evidence to show that he was one of the partners in the firm of Edge Enterprises (Nig) to enable him sue on the contract. Instead the evidence is to the contrary since he stated categorically that: “It is an enterprise owned by George Idem Etudo (late)”. If he was one of the partners in Edge Enterprises, the decision reached in ATAGUBA & CO. v GURA (NIG) LTD. (2005) 1 NWLR (Pt. 927) 429 would certainly have worked in his favour where Order 11 Rules 9 and 26 of the Kaduna State High Court (Civil Procedure) Rules, 1987 were construed.
The Rules state as follows:-
“9. Any two or more persons claiming or alleged to be liable as partners may sue or be sued in the name of the firm in which they were partners when the cause of action arose; and any party to an action may in such case apply to the court for a statement of the names and addresses of the persons who were, when the cause of action arose, partners in any such firm, to be furnished in such manner, as the court may direct.
26. Any person carrying on business within the jurisdiction in a manner or style other than his own name may be sued in such name or style as if it were a firm name and; so far as the nature of the case will permit, all provisions relating to proceedings against firms shall apply.”
In construing these provisions, Edozie, JSC stated the general principles for initiating an action which will vest jurisdiction in the court to adjudicate on it and went on to hold at page 445 of ATAGUBA & CO. v GURA (NIG) LTD. (2005) I NWLR (Pt. 927) 429 as follows:-
“The law however recognises that apart from natural and Juristic persons, some non-legal entities can sue and be sued eo nomine. Thus it has been held that no action can be brought by or against any part other than a natural person or persons unless such a party has been given by statute, expressly or impliedly or by the common law, either
(a) a legal persona under the name by which it sues or is sued, e.g. corporation sole or aggregate, bodies incorporated by foreign law and “quasi-corporations” constituted by Act of parliament; or
(b) a right to sue or be sued by that name e.g. partnerships, trade unions, friendly societies and foreign institutions authorized by their own law to sue and be sued but no incorporated. See FAWEHINMI v. N.B.A. (No.2) (1989) 2 NWLR (Pt.105) 558; KNIGHT & SEARLE V. DOVE (1964) 2 ALL ER 307; CARLEN (NIG) LTD. V. UNIJOS (1994) 1 NWLR (Pt.323) 631″.
The headed paper shows that Edge Enterprises (Nig.) is a subsidiary of Interfield Supplies Corporation Tx USA but there is nothing to indicate that the parent corporation namely Interfield Supplies Corporation Tx USA can undertake legal proceedings on its own in the USA so as to accommodate this suit under the category of foreign institutions which are authorized by the law in the USA to sue and be sued but not incorporated. In any event Edge Enterprises (Nig) is only an affiliate and under the Companies and Allied Matters Act, the company must have been registered, in Nigeria or given an exemption before it can carry on business as an unincorporated company. See Sections 54 and 56 of the Companies and Allied Matters Act (CAMA) Cap 20 Laws of the Federal Republic of Nigeria 2004. If indeed the respondent is a partner in Edge Enterprises (Nig) he was required by Section 578 CAMA to within three months of the death of George Edem Etudor report same to the Registrar of Business Names who on receipt of such notice is mandated by Section 578 (2) to delete the name of the deceased from the register. It is not material as argued by learned counsel for the respondent that Edge Enterprises (Nig) is still a going concern. This is to ensure that a non existent partner does not take advantage to sue or be saddled with any responsibility of the firm. This also presupposes that Edge Enterprises (Nig) was registered as a Business Name as required by Section 574 CAMA to warrant the Respondent commence action under that name as a partner. In the absence of any evidence showing that the respondent is a partner in Edge Enterprises (Nig) and the fact that Edge Enterprises (Nig) is registered under the Business Name, he cannot sue. The learned trial Judge committed serious error when he held that the law recognises the person who signed the contract with the Defendant and not the company he sued. This led him into the erroneous conclusion that “even if Mr. Edem George Etudor were alive at the time of filing this suit, the Plaintiff – Dennis Effiong Etukudo, the Manager of the Company or servant of Edge Enterprises (Nig) would still be qualified in law to sue to enforce the contract of which he was a party/signatory, while trading in the name and style of Edge Enterprises”. I agree with learned counsel for the Appellant when he submitted that if that line of reasoning is carried to its logical conclusion, the party which the Respondent should have sued was Chief J. B. Effiong and not Mobil Producing Nigeria Unlimited since he was the one that signed the contract.
I find merit in the appeal and it is allowed. The Respondent had no locus to sue on the contract and consequently the jurisdiction of the court was not properly invoked. It is a pity that the parties and more especially the Respondent did not avail himself of the services of a solicitor before he signed Exhibit ‘3’ which does not confer any right on him to sue. If the Respondent had engaged the services of a legal practitioner to advise him, he probably would have avoided falling into the legal pit hole from which he has suffered unnecessary financial losses. The document itself was not properly drafted. In a proper contract document where one of the parties is an incorporated company, the attestation clause should be that the seal of the company is affixed in the presence of the witness and not an employee signing on behalf of the company.
In conclusion, I hereby strike out the suit as incompetent and make no order as to costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the advantage of having a preview of the lead judgment just delivered by my learned brother, Kumai Bayang Akaahs, JCA. I agree with his lucid reasoning and conclusion reached therein, that the appeal has merit and perforce must be allowed. I also therefore allow it and set aside the ruling of the lower court and strike out the suit for being incompetent. I also make no order with regard to costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, Akaahs, JCA, gave me the privilege of reading the draft of the leading judgment just delivered.
I agree with the reasoning and conclusion in the judgment which I adopt with the consequential orders.
The appeal has merit and I allow it.
I make no order as to cost.
Appearances
Kunle FakayejoFor Appellant
AND
Respondent absent but brief was settled by Nsemeke Daniel.For Respondent
