NAGARTA INTEGRATED FARMS LIMITED v. IBRAHIM MUDI NAGODA & ORS
(2016)LCN/8270(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 9th day of March, 2016
CA/K/61/07(R)
RATIO
APPEAL: WHETHER THE COURT CAN DELVE INTO ISSUES THAT MAY COME UP AT THE HEARING OF THE SUBSTANTIVE APPEAL AT AN INTERLOCUTORY STAGE
It is trite that Courts must not, at an interlocutory stage, delve into issues that may come up at the hearing of the substantive appeal. per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
PRACTICE AND PROCEDURE: WHETHER PARTIES HAVE FRRE HAND TO CHANGE PERSONS IN THE LITIGATION PROCESS
An application for substitution of a person in litigation has been held in the case of Ejezie v. Anuwu (2008) 12 NWLR Part 1101 Page 446 at 485 Para F-G per Tobi JSC as “generally an innocuous one granted as a matter of routine. This is because of the state of our adjectival law that parties should have free hand to change persons in the litigation process. And so applications for substitution do not generally give any problem..” per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
Between
NAGARTA INTEGRATED FARMS LIMITED Appellant(s)
AND
1. IBRAHIM MUDI NAGODA
2. YAKUBU MUDI NAGODA
3. USMAN A. NAGODA
4. SULEIMAN MUDI NAGODA
5. AUWALU MUDI NAGODA
6. MA’AZU MUDI NAGODA
7. ABBATI MUDI NAGODA
8. AHMADU MUDI NAGODA
9. SANI MUDI NAGODA
10. MANIRU MUDI NAGODA
11. LAWAN MUDI NAGODA
12. BILYAMINU MUDI NAGODA
13. JAFARU MUDI NAGODA
14. ADAMU MUDI NAGODA
15. ISYAKU MUDI NAGODA
16. MAS’UDU MUDI NAGODA
17. DR. MANSUR MUDI NAGODA
18. HAFSATU MUDI NAGODA
19. A. I. MUDI NAGODA
20. FATI MUDI NAGODA
21. ZUBAIDA MUDI NAGODA
22. RAKIYA MUDI NAGODA
23. BATULU MUDI NAGODA
24. AMINA MUDI NAGODA
25. HADIZA MUDI NAGODA
26. BASHARIYYA MUDI NAGODA
27. SHA’AWANTU MUDI NAGODA
28. RUMA SA’U MUDI NAGODA
29. UMMU KALTUM MUDI NAGODA
30. BADARIYYA MUDI
31. HAJIYA AZUMI MUDI NAGODA
32. HAJIYA BINTA MUDI NAGODA
33. HAJIYA YALWA MUDI NAGODA
34. UMMU HANI MUDI NAGODA Respondent(s)
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Lead Ruling): The Appellant’s Motion, dated 13th November, 2014 is for the following reliefs:
a) An Order of this Honourable Court substituting the Appellant’s/Applicant’s name Nagarta Integrated Farm Limited with a new name SKYMATE ASSOCIATES NIGERIA LIMITED and reflecting this substitution in all the processes before this Honourable Court.
b) An Order of this Honourable Court deeming all processes filed by the parties in this appeal amended to read Skymate Associates Nigeria Limited wherever Nagarta Integrated Limited appears.
c) And for such further order(s) that this Honourable Court may deem fit to make in the circumstances of this case.
In support of the Motion is an affidavit deposed to by Igboji Esther, Litigation Secretary in the law firm of Messrs Okechukwu Nwaeze & Co, Counsel to the Appellant.
?The reasons given by the Appellant for the application are that they registered the name “Nagarta Integrated Farms Ltd” in 1987 with the Corporate Affairs Commission (CAC). They subsequently applied for a change of name to “Mustang International Ltd”
and were granted the same by the CAC on 5th November 1992. Yet again, the name of the company was changed to “Skymate Associates Nigeria Ltd” by the CAC on the 30th April 1994, upon their application. There is thus need for the substitution of their name to reflect the new name of “Skymate Associates Nigeria Ltd”.
The various Certificates of Incorporation issued by CAC reflecting the change of name, were exhibited to the affidavit.
Opposing the Motion, the Respondents filed a Counter Affidavit deposed to by Ibrahim Muda Nagoda, the 1st Respondent. The contention of the Respondents is that at the time the Appellant instituted the action in the lower Court on 22nd July 2004, the name of the Company, “Nagarta Integrated Farms Ltd’, was not in existence as a corporate body at the register of CAC. Following a search made by the Respondents, it was found that there was no such name registered, in consequence of which they (Respondents) applied and registered that name, viz “Nagarta Integrated Farms Ltd”. The issue of change of name to Skymate is now just being raised after about 9 years of the commencement of the dispute.
Since, at the time the suit
was instituted, there was no juristic personality capable of instituting this action in the name of Nagarta Integrated Farms Ltd, the various transformations of the Company have put an end to the said Company.
Exhibited to the Counter Affidavit is a copy of the search report and a copy of the Registration Certificate of Nagarta Integrated Farms Ltd dated 12th December 2007.
Counsel, in view of the contentious nature of the application, were directed to file written addresses.
ln the Appellant’s Written Address, Okechukwu Nwaeze, of Counsel, formulated a single issue for determination, to wit:
”Whether the Appellant/Applicant has furnished before the Honourable Court sufficient material to warrant the exercise of the Court judicial discretion in favour of the Appellant/Applicant to grant the reliefs sought.”
?Arguing this issue, learned Counsel submitted that Order 4 Rules 1 and 11 of the Court of Appeal Rules 2011, pursuant to which the application was brought, permits the grant of the application, which application invites the discretionary power of the Court and which must be exercised judicially and judiciously. Citing
Chevron Nig Ltd v. Enioye (2005) All FWLR Part 265 Page 1168, and Ejezie v. Anuwu (2008) 12 NWLR Part 1101 Page 446 at 485 Para F-G, he submitted that an application for substitution is an innocuous one and granted as a matter of routine. He referred to the Certificates of Incorporation exhibited, showing the change of name of the Appellant. The change of name, he submitted, by Section 31(6) of the Companies and Allied Matters Act (CAMA) shall not affect the liabilities. It does not and shall not affect the right acquired in the landed property or the suit commenced in the former name. The application, he said, is to determine the real issues in controversy. Where there is an error in the name of a party an amendment, properly sought, should be allowed. Any mistakes occasioned, he urged, should not be visited on the client as the Courts have a duty to dispense justice. He cited Section 15 of the Court of Appeal Act, Bankole v. Dada (2003) 11 NWLR Part 830 Page 174; Irepodun-lfelodun LG v. Balemo (2008) All FWLR Part 420 Page 708; Ogboru v. Ibora (2004) 7 NWLR Part 871 Page 192; Amaechi v. INEC (2008) 5 NWLR Part 1080 Page 227.
?In the Respondent’s Written
Address by M. Bulama Esq, two issues for determination were raised, as follows:
1. Whether the scope of Section 31 (6) of the Companies and Allied Matters Act (CAMA) is wide enough to cover the relief of substitution requested by the applicant.
2. Whether the Rules of Estoppel can operate to deny the Appellant/Applicant from the substitution of the name requested for.
Arguing both issues together, learned Counsel submitted that the Respondents had raised by preliminary objection before the trial Court about 14 years ago, the issue of the competence of the action. The Appellant’s witness, while giving evidence at the trial, had admitted that the error in the use of the name “Nagarta Integrated Farms Ltd” was the fault of his Counsel. Yet, Counsel had still not corrected this error. He is accordingly estopped from doing so, as a party cannot approbate and reprobate at the same time. He cited the cases of Iloabachie v. Philip (2002) FWLR Part 115 Page 726 and Ogbeide v. Osifo (2007) 3 NWLR Part 1022 at 423 on the principle of estoppel. The application for substitution, he contended, should have been made,more than 10 years ago, thus avoiding
expenses incurred by the Respondent in finding out the status of the Appellants.
He cited authorities on the general principles of interpretation, which principles would apply in the construction of Section 31(6) of CAMA relied on by the Appellant, submitting that a community reading of the Statute will show that the change of name by a company does not extinguish the right and obligation created but that where an action was or is to be instituted, it must be in the new name. This interpretation accords with reason, for once the change is effected the old name is automatically struck out or cancelled and any other person is eligible to register that name, resulting in confusion if the former name can still be used by the company at will. Once that name is removed, the company ceases to be a corporate entity. If the name used by the Appellant was not in the register of the Corporate Affairs Commission in 2004, the Appellants cannot use that name as an existing legal entity to institute the present action or continue with it.
?Learned Counsel referred to “Halsbury’s Laws of England” on the subject of change of name and its effect.The Appellant, he
said, can thus not at this stage substitute the old name with the new name, for as at the time the action was instituted, there was no corporate entity known as “Nagarta Integrated Farms Ltd” in the register of the Corporate Affairs Commission. The only option open to the Appellants is to commence a fresh proceeding in the new name of the company. He distinguished the case of Ogboru v.
Ibori cited. He asked the Court to refuse the application.
In the Appellant’s Reply filed in response, he accused the
Respondents of using an uncertified printout purportedly from CAC in proof of the non registration of the Appellants, mischievously thereafter registering that name and laying claim to it. He asked the Court to prefer the sanctity of their certificates from the CAC. The issue of estoppels was therefore not applicable to the case. Counsel thereafter restated his arguments under the substantive brief, also delving into the principles to be applied in the interpretation of words, in particular Section 31 (6) of CAMA relied upon by them.
?In oral address in Court, learned Counsel to the Respondents submitted that they cannot substitute the name of a dead
person for a living one. The Respondents have not given the Appellant permission to substitute their name.
The present application emanates from an appeal filed by the Appellants to this Court since 2007, against the decision of the High Court, Kano. Briefs of Arguments have been filed by the parties. The appeal has, however been stultified by innumerable applications and processes filed by the parties in this case.
The objection raised by the Respondents to this application, in summary, is whether a company can seek an Order of substitution to a different name when its former name was not registered, the consequence of which is that the suit was instituted in the name of a non juristic party and thus incompetent from inception.
For this Court to involve itself in the contentious issue of whether the Appellant was formerly registered in the name “Nagarta” as Respondents’ Counsel seeks, would, I hold, be determining at this interlocutory stage issues that should be left to the hearing of the main appeal. Moreso, as the Respondents’ Counsel has pointed out that this contention was the subject of a preliminary objection at the trial Court.
It is trite that Courts must not, at an interlocutory stage, delve into issues that may come up at the hearing of the substantive appeal.
The sole issue that I consider that arises for determination, as formulated by the Appellant is:
Whether the Appellant has furnished before this Court sufficient material to warrant the exercise of the Court’s discretion in its favour.
An application for substitution of a person in litigation has been held in the case of Ejezie v. Anuwu (2008) 12 NWLR Part 1101 Page 446 at 485 Para F-G per Tobi JSC as “generally an innocuous one granted as a matter of routine. This is because of the state of our adjectival law that parties should have free hand to change persons in the litigation process. And so applications for substitution do not generally give any problem..”
The Appellant, in support of its application for substitution exhibited Certificates of Incorporation showing its transmutation. The first is Certificate of Incorporation in the name of “Nagarta Integrated Farms Ltd” dated 9th December, 1987 given under the hand of the Registrar of Companies (Exhibit A). Also exhibited is the Memorandum and
Articles of Association of the said Company (Exhibit B). Further exhibited, as Exhibit C, is the Certificate of Incorporation of “Mustang International Ltd”. Stated on this Certificate are the words in the usual format:
“Certificate of Incorporation of a Company
I hereby certify that Mustang International Ltd previously called Nagarta Integrated Farms Ltd which name was changed by Special Resolution and with my Authority on the 5th day of November One Thousand Nine Hundred and Ninety-Two was incorporated under the Companies Act 1968 as a Limited Company on the 9th day of December 1987 Given under my hand in Abuja …….1992”
Also exhibited, as Exhibit D, is the Certificate of Incorporation of “Skymate Associates Nigeria Ltd” in the same format as Exhibit C above, indicating that “Skymate Associates Nigeria Ltd” was previously known as “Mustang International Ltd”. The Certificate was dated 18/10/94.
It is clear from the foregoing, that the Appellant no longer bears the name “Nagarta Integrated Farms Ltd” but “Skymate Associates Nigeria Ltd”. Thus, whether the Appellant had no right from inception to lay claim to Nagarta, having relinquished
same, following which the Respondents now incorporated a Company in that name, is not significant, I hold, in the determination of this application.
As pointed out by the Appellant’s Counsel and which I agree with, by Section 31(6) of the Companies and Allied Matters Act Supra, the change of name does not affect its rights and obligations under the former names or render defective any legal proceedings by or against it. Since the Appellant is not insisting, by this application, on retaining the name “Nagarta”, the Respondents, I hold, suffer no detriment by this grant.
By Order 4 Rule 1 and 7 of the Court of Appeal Rules 2011, this Court “has all the powers and duties as to amendment and otherwise of the High Court’. Section 15 of the Court of Appeal Act 2004 empowers the Court to “from time to time, make any order necessary for determining the real question in controversy in the appeal and may amend any defect or error in the record of appeal…and generally have jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance…”
The Appellant, I hold, has placed sufficient
facts before this Court to warrant the grant of this application.
It is indeed true, as submitted by the Respondents’ Counsel, that this application should have been brought much earlier, since 5/11/92 when the name was changed to Mustang International Ltd, or 20/4/94 when the name Mustang International Ltd was changed to Skymate Associates Nigeria Ltd. This fact, however, does not affect the merit of the application, in particular as the appeal has not been heard. The grievance of the Respondents can be redressed by costs to be awarded.
This application has merit and is accordingly granted. The name of the Appellant is substituted by the name “Skymate Associates Nigeria Ltd”. Both parties shall amend their processes within 21 days of today to reflect this new name. Costs of N50,000.00 are awarded in favour of the Respondents.
UWANI MUSA ABBA AJI, J.C.A.: I have had the advantage of reading in draft the Ruling of my learned brother, Oludotun A. Adefope-Okojie, JCA granting the Appellant/Applicant to substitute SKYMATE ASSOCIATES NIGERIA LIMITED for the Appellant, Nagarta Integrated Farms
Ltd. It is for the same reasons therein contained in the ruling which I adopt as mine that I too grant the application for substitution.
I endorse the consequential order made therein including orders as to costs.
IBRAHIM SHATA BDLIYA, J.C.A.:?I have had read before now the lead ruling just delivered by my learned brother, OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA. For the reasons ably stated therein, I agree that the application has merit, and be granted. The principle of law which govern the granting of an application of the nature sought by the application have been repeatedly adumbrated by the Superior Courts, and my learned brother, Adefope-Okojie, JCA, has dealt with same so admirably that I have nothing useful to add thereto, than to endorse the granting of the application, and do abide by the orders made, including that on costs.
Appearances
Miss Queen EziegboFor Appellant
AND
3rd Respondent present
M. Bulama, Esq. for RespondentsFor Respondent
