NATIONAL PALM PRODUCE ASSOCIATION OF NIGERIA LTD (GTE) & ANOR V. UDOM UDOM & ORS (2013)

NATIONAL PALM PRODUCE ASSOCIATION OF NIGERIA LTD (GTE) & ANOR V. UDOM UDOM & ORS

(2013)LCN/6223(CA)

In The Court of Appeal of Nigeria

On Thursday, the 23rd day of May, 2013

CA/C/167/2011

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

Between

1. NATIONAL PALM PRODUCE ASSOCIATION OF NIGERIA LTD. (GTE)
2. OBONG IME ATAKPA Appellant(s)

AND

1. UDOM UDOM
2. ELDER J.A. SIMON
3. MR. PETER ETUK Respondent(s)

RATIO

WHETHER OR NOT ORAL EVIDENCE CAN BE USED TO CONTRADICT DOCUMENTARY EVIDENCE

Oral evidence cannot be used to contradict, alter, add to or vary the contents of Exhibit “A”. See Section 128(1) of the Evidence Act, 2011; Union Bank of Nigeria Ltd. vs. Ozigi (1994) 3 SCNJ 41; Union Bank of Nigeria Ltd. v. Sax Nig. Ltd. (1994) 9 SCNJ 1. The contents of documents may only be proved by the production of such documents. This is made clear under Section 125 of the Evidence Act, 2011 as follows:
“125. All facts, except the contents of documents, may be proved by oral evidence.” PER TUR, J.C.A.

THE BURDEN OF PROOF IN CIVIL PROCEEDINGS

The onus of producing the original Memorandum and Articles of Association of the 1st appellant apart from Exhibit “A” was on the respondents. Section 133(1) of the Evidence Act (supra) reads as follows:
“133(1) In civil cases, the burden of first proving existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.”Having deposed in paragraph 3 of the affidavit in support of the originating summons that Exhibit “A” was the Memorandum and Articles of the 1st appellant, the onus shifted to the respondents to prove otherwise. Section 133(2)-(4) of the Act (supra) read as follows:
“(2) If the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.
(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.
4. The burden of proof shall be discharged on the balance of probabilities in all civil proceedings.”PER TUR, J.C.A

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court sitting in Uyo in suit No. FHC/UY/CS/57/2010 delivered on 2nd day of March, 2011. Being dissatisfied, the Appellants who were plaintiffs in the court below filed a notice and three grounds of appeal. The Appellants as plaintiff filed an originating summons and claimed against the Respondents as defendants as follows:
“(a) A DECLARATION that the purported emergency executive meetings or executive meetings of National Palm Produce Association of Nigeria Limited by Guarantee alleged held on 18th January, 2010, 25th January, 2010 and 1st February, 2010 were and are invalid having regard to the provisions of the Memorandum and Article or Association of National Palm Produce Association of Nigeria Limited by Guarantee and of the Companies and Allied Matters Act.
(b) A DECLARATION that all the actions taken howsoever and the entire proceedings of the purported executive meetings of National Palm Produce Association of Nigeria Limited by Guarantee allegedly held on 18th January, 2010, 25th January, 2010 and 1st February, were and are null and void for substantial non-compliance with the provisions of the Memorandum and Articles of Association of National Palm Produce Association of Nigeria Limited by Guarantee and of the Companies and Allied Matters Act.
(c) AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants from interfering or disturbing howsoever the status quo of National Palm Produce Association of Nigeria Limited by Guarantee, Akwa Ibom State Chapter with the 2nd Plaintiff as the Chairman until the end of his tenure by effluxion of time.
(d) AND FOR SUCH FURTHER ORDER (S) as the Honourable Court may deem fit to make in the circumstances of this case.”
The Appellants/Plaintiffs filed an affidavit of 17 paragraphs and annexed several exhibits. The Respondents as Defendants filed a 41 paragraphs affidavit and annexed several documents. Several other affidavits were subsequently filed by both parties. At the end of these exchanges and trial the learned trial Judge gave her considered judgment.
The Appellants were dissatisfied with the judgment as there was no decision on the issues articulated for determination in the trial court.
The Appellants had complained that the Respondents had held illegal meetings contrary to the Memorandum and Articles of Association. Also that the respondents illegally purported to suspend the 2nd Appellant as Chairman of the 1st Appellant.
The Appellants filed their brief on 6th day of September, 2011 and articulated three issues for determination as follows:
“(i) Whether the learned trial Judge made a correct approach to the affidavit evidence by both parties before the Court by coming to a conclusion on the affidavit evidence by the Defendants alone that “two issues called for the Court’s determination here namely, (1) Effect of the suit still pending at the Magistrate Court, Uyo (2) The special meeting held on 1st February, 2010 wherein 2nd Plaintiff was suspended,” without considering that of the Plaintiffs at all or determining whether the meeting purportedly held by the Defendants on 1st February was lawful and/or proper?
(ii) whether the learned trial Judge was right in holding to the effect that discussing the issue whether the purported emergency executive meetings or executive meetings of National palm Produce Association of Nigeria Limited by Guarantee (NPPAN) allegedly held on 18th January, 2010 25th January, 2010 and 1st February, 2010 were and are valid having regard to the provisions of the Memorandum and Articles of Association of National Palm Produce Association of Nigeria Limited by Guarantee and of the Companies and Allied Matters Act, “will amount to academic exercise and waste of Court’s time?
(iii) whether the learned trial Judge was right to hold that Elder J.A. Simon cannot act as the Chairman of National Palm Produce Association of Nigeria Limited by Guarantee, Akwa Ibom State Chapter, until the Court finds 2nd Plaintiff guilty,” in the circumstances of the case?”
The Respondents filed their brief on 2nd October, 2012 but deemed properly filed and served on 27th November, 2012. The Respondents formulated a lone issue for determination, namely:
“1. Whether the trial court made a correct approach to the affidavit evidence of the parties before the court when it stated that, “…the main issue in controversy between parties is as captured in paragraphs 15, 16, 17, 18, 19, 20, 22, 23, 24, 36 of the counter affidavit…”
These are the issues articulated by both parties. However I will use those as articulated by the Appellant even though the three issues were argued together as one issue.
Learned counsel to the Appellants submitted that the trial Judge failed to, or neglected to assess correctly the affidavit evidence of both parties. Also that the trial Judge came to a wrong conclusion about the two issues that called for determination, namely, (1) Effect of the suit still pending at the Magistrate Court, Uyo (2) The emergency meetings held on 1st February, 2010 wherein 2nd plaintiff was suspended. The court did not consider at all, the consequences of this to the plaintiffs/Appellants or determining the legality of the meeting allegedly held on 1st February, 2010 by the defendants/Respondents.
The learned counsel for the Appellants submitted inter alia that, the 1st plaintiff/Appellant is National Palm Produce Association of Nigeria Limited by Guarantee. The 2nd plaintiff/Appellant is the Chairman of the Akwa Ibom State Chapter for a term of three years from May, 2009. By virtue of this, the 2nd Appellant is also a Vice Chairman of the Board of Directors.
The 2nd Appellant is also the agent of the 1st Appellant. See Chief F.S. Yusufu & Ors. v. Kupper International N.V. (1996) 4 SCNJ 40; Trenco (Nig.) Ltd. vs. African Real Estate Ltd. (1978) 1 LRN page 146 at page 153; Lennard Carrying Co. vs. Asiatic petroleum Go. Ltd. (1915) A.G. 713 and Bolton (Engineering) Co. Ltd. vs. Grahan & sons (1957) 1 Q.B. page 159.
By virtue of the 2nd Appellant’s post, he had the locus to institute this action on behalf of the 1st Appellant. The 2nd Appellant is, therefore, challenging his purported suspension from office, for substantial non-compliance with the relevant provisions of the Memorandum and Articles of Association of the Company and the Company and Allied Matters Act. See David vs. Dorji iles Mills (Nig.) Ltd. & Ors. (2010) 4 NSCR.
The Respondents sent out invitations dated 25th January, 2010 to 2nd Appellant to attend a meeting on 1st February, 2010 without authorization contrary to Articles 3(2), 4(o) and 6 of the Memorandum and Articles of Association. See pages 97, 98 and 99 of the Record of Appeal and Sections 217, 218, 219 and 220 of the Companies and Allied Matters Act Cap C20 of the Law of Federation of Nigeria, 2004.
It was at the said illegal meeting that the 2nd Appellant was purportedly suspended as the Chairman of the National Palm Produce Association of Nigeria Limited by Guarantee, Akwa Ibom State Chapter. Learned counsel contended further that the learned trial Judge erred in law in holding that, discussing the issue of whether the purported emergency executive meetings or executive meetings of the NPPAN allegedly held on 18th January, 2010, 25th January, 2010 and 1st February, 2010 were and are valid having regard to the provisions of the Memorandum and Articles of Association of NPPAN and of the Company and Allied Matters Act will amount to a waste of court’s time.
Counsel contended that the trial Judge erred in law in holding to the effect that Elder J.A. Simon cannot act as the Chairman of the NPPAN Akwa Ibom State Chapter, until the court finds the 2nd Appellant guilty of the Criminal charge in the Magistrate Court. Also that, the Respondents ought to have proceeded under Section 63(5)(b) of the Company and Allied Matters Act, Cap C20 Law of Federation of Nigeria, 2004.
Finally, counsel urged the court to allow this appeal and grant all the reliefs sought by the Appellants in the originating summons.
In response, learned counsel to the respondents submitted that the learned trial Judge has the liberty to distil issues for determination from the affidavits of the parties. See Udoh vs. Registered Trustees B.C. & Star (2011) 17 NWLR Pt. 1276 page 223 per Akaahs, JCA (as he then was):
“…Issues for determination may be those framed by either one or both of the parties. They may also comprise issues reframed by the court after consideration of those set out by the parties…”
Counsel confirmed that the main reason why a court does that, is to narrow the issues in controversy between the parties in the interest of clarity, accuracy and brevity. A court can also formulate issues for determination when the parties have not adequately covered the issues in controversy. See A. Int’l Ltd. vs. S.K. Int’l Ent. Ltd. (2010) 13 NWLR Pt.1211 page 270; Okoyekwu v. Okoye (2009) 6 NWLR Pt.1137 page 350.Finally, learned counsel submitted that for a trial court to reach an effective decision between parties it must be able to pin point the controversy between them. See Okoyekwu vs. Okoye (supra).
Counsel, therefore, urged the court to dismiss this appeal and refuse all the reliefs sought by the appellants in the Originating Summons.
In cases like this, the appellate court has to refer to the originating summons to decipher what the plaintiffs/Appellants’ claims were and the reliefs sought. For clarity, I will recap the claims of the plaintiffs/Appellants:
“(a) A DECLARATION that the purported emergency executive meetings or executive meetings of National Palm Produce Association of Nigeria Limited by Guarantee alleged held on 18th January, 2010, 25th January, 2010 and 1st February, 2010 were and are invalid having regard to the provisions of the Memorandum and Article or Association of National Palm Produce Association of Nigeria Limited by Guarantee and of the companies and Allied Matters Act.
(b) A DECLARATION that all the actions taken howsoever and the entire proceedings of the purported executive meetings of National Palm Produce Association of Nigeria Limited by Guarantee allegedly held on 18th January, 2010, 25th January, 2010 and 1st February, were and are null and void for substantial non-compliance with the provisions of the Memorandum and Articles of Association of National Palm Produce Association of Nigeria Limited by Guarantee and of the Companies and Allied Matters Act.
(c) AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants from interfering or disturbing howsoever the status quo of National Palm Produce Association of Nigeria Limited by Guarantee, Akwa Ibom State Chapter with the 2nd Plaintiff as the Chairman until the end of his tenure by effluxion of time.
(d) AND FOR SUCH FURTHER ORDER(S) as the Honourable Court may deem fit to make in the circumstances of this case.”
From these, it can be deciphered that the Appellants were asking the court to declare, the meetings of 18th January, 2010, 25th January and 1st February, 2010 illegal, null and void. Also to declare the purported suspension of the 2nd Appellant null and void.
To find out whether the meetings held on those dates were held according to law, I will refer to the requirements for convening a legal meeting according to the Memorandum and Articles of Association of NPPAN. See Section 4 captioned Executive Council which provides as follows:
“4. EXECUTIVE COUNCIL:
(a) The business of the Association shall be managed by its Executive Council.
(b) Elected members of the Council shall hold office for three years, but shall be eligible for re-election for another term.
(c) The Council shall meet at least once every three months, special meeting of the Council may be convened at any time by the President in Council or if requested by twenty members of the Council. The National Secretary shall be required to give at least twenty one days written notice of a Special Meeting stating the agenda to all council members. Any member of the Association who is not a member of the Council may attend any meeting of the Council, but shall not be entitled to vote at any such meeting.”
See also the requirements of an Ordinary General Meeting:
“2. ORDINARY GENERAL MEETING:
A meeting of the Association may be convened as an ordinary/special meeting by the National Secretary at the instance of the President or on the request by any twenty members of the Association. Notice of such meeting which shall be given at least seven days before the meeting, shall state the business of the meeting and no other business shall be undertaken thereat.”
The requirements of such an emergency meeting are as stated above.
The meeting may be convened by the National Secretary in case of an ordinary meeting. In case of an Executive Council meeting, by the President.
These two meetings may also be convened by the request of at least twenty members of the association or of the executive council as the case may be.
In the instant case, it is the members of the Executive Council that convened the emergency meeting. This means that, at least, twenty members of the Council must request for this meeting to be convened. The Secretary shall be required to give at least twenty one (21) days written notice of special meeting stating also the agenda of such a meeting.
By a letter dated 18th January, 2010 the Secretary invited the 2nd Appellant to a meeting scheduled on 25th January, 2010. See page 33 of Record of Appeal. A letter dated 20th January, 2010 was thereafter written by the 2nd Appellant to the Secretary warning him of the breaches of convening executive meeting illegally. On 26th January, 2010 the 2nd Appellant wrote the Secretary instructing him to convene a meeting inviting all State Executive members of NPPAN Akwa Ibom State Chapter and included the agenda for the meeting. It would be recalled that the invitation of 18th January, 2010 inviting the 2nd Appellant had no agenda contrary to the Association’s Rules. For such a meeting to be legal, members must be given 21 days notice at least. The invitation for the meeting must be accompanied by the agenda for the meeting. In view of the serious allegations leveled against the 2nd Appellant it ought to be included in the agenda. On the 1st of February, 2010, the 2nd Appellant was suspended with serious allegations leveled against him.
For the meeting of 1st February, to be authentic, the convener of the meeting must have sought the signatures of at least 20 members as stated in the Memorandum and Articles of Association. After getting the mandatory members signatures, the invitation must give 21 clear days to the date with an agenda of the meeting.
This procedure was not adopted and, therefore, breached the requirements of the Memorandum and Articles of Association. The respondents had stated that 9 members out of the 13 executive members requested for the convening of this meeting. This is a good number but the mandatory 21 days notice was not given for the meeting neither was the agenda included in the notice of meeting.
These requirements were not observed thereby rendering the meetings illegal and the decisions reached thereto null and void.
The 2nd Appellant was suspended without including an agenda in the invitation convening the meeting. The suspension letter bore all the allegations against the 2nd Appellant without giving him an opportunity to answer to them. The principle of audi alteram partem was, therefore, breached. This principle that:
“no man should be condemned unheard where a person’s rights and obligations are affected, there is a duty on the relevant authority to accord him the opportunity to be heard before taking any adverse decision against- him.” Ceekay Trading Ltd. vs. General Motors Co. Ltd. (1992) 2 NWLR Pt.222 page 132; Yakubu vs. Gov, Kogi State (1997) 7 NWLR Pt.511 page 60; C.O.P. v. Iheabe (1998) 11 NWLR Pt.575 page 666.The criminal proceeding against the 2nd Appellant is not part of this proceeding and, therefore, should not be referred to. It is a separate proceeding and the outcome of which should not in any way affect this suit. This is a civil suit and not in any way dependent on the outcome of the criminal case against the 2nd Appellant.
The learned trial Judge in her orders given as a result of her judgment, stated as follows. I will recap the order for emphasis and clarity:
“IT IS HEREBY ORDERED AS FOLLOWS:
(1) That court have declared the suspension illegal, null and void and of no effect whatsoever.
(2) That also Elder J.A. Simon cannot act as the Chairman of National Palm Produce Association of Nigeria Limited by Guarantee, Akwa Ibom State Chapter until the court finds 2nd Plaintiff guilty. I so hold.
(3) That the Defendants are hereby restrained from interfering or disturbing the status quo of the National Palm Produce Association of Nigeria Limited Guarantee Akwa Ibom State Chapter with the 2nd Plaintiff as the Chairman until the charge at the Magistrate Court is disposed of and judgment delivered.
ISSUED AT UYO, under the seal of the Court and the hand of the Presiding Judge this 2nd day of March, 2011.”
The trial Judge went beyond what the Appellants asked for, in the third order. The reliefs were not dependent on the outcome of criminal case pending in the Magistrate court. The Respondents are free to exercise their fundamental rights but it must be in conformity with the Memorandum and Articles of Association.
The meetings held without the mandatory notice with the agenda and the mandatory 21 days notice is, therefore, null and void. All decisions taken in those meetings suspending the 2nd Appellant are also null and void and of no legal effect.
This appeal is therefore allowed. Order 3 that,
“the Defendants are hereby restrained from interfering or disturbing the status quo of the National Palm Produce Association of Nigeria Limited Guarantee Akwa Ibom State chapter with the 2nd Plaintiff as the Chairman. Until the charge at the Magistrate Court is disposed of and judgment delivered” is hereby rescinded.
I make no orders as to costs. Each party is to bear its own cost of the trial.

MOHAMMED LAWAL GARBA, J.C.A.: I agree with the views and conclusions of my learned brother, Uzo I. Ndukwe-Anyanwu, JCA, set out in the lead judgment. The appeal is allowed by me in terms of the lead judgment.

JOSEPH TINE TUR, J.C.A: I read the lead judgment delivered by my Lord Uzo I. Ndukwe-Anyanwu, JCA and I concur with the facts and conclusions arrived at. I shall add a few words of mine to show why this appeal should be allowed.
Paragraphs 3-6 of the affidavit of Obon Ime Atakpa (2nd appellant) deposed to in support of the originating summons is as follows:
“3. That the 1st plaintiff is a Company Limited by Guarantee registered in Nigeria on 22nd May, 1995 with Registration Number RC.271,945. A copy of the Memorandum and Articles of Association of the National Palm Produce Association of Nigeria Limited by Guarantee are exhibited hereto and marked Exhibit “A”.”
4. That I am the elected Chairman of the National Palm Produce Association of Nigeria Limited by Guarantee, Akwa Ibom State Chapter (NPPAN, with secretariat at No.29 Idoro Road, Uyo and was elected sometime in May, 2009 for a term of three years.
5. That the Defendants are elected officers of the National Palm Produce Association of Nigeria Limited by Guarantee, Akwa Ibom State Chapter (NPPAN), and that is to say, Secretary, Vice Chairman 1 and PRO respectively, at No.29 Idoro Road, Uyo
6. That the conduct and management of affairs of the National Palm Produce Association of Nigeria Limited by Guarantee, Akwa Ibom State Chapter (NPPAN) is governed by Exhibit “A”, and the Companies and Allied Matters Act.”
Paragraphs 4-14 of the Counter-affidavit of Mr. Udom Udom reads as follows:
“4. That paragraph 2 of the affidavit of the Defendants is not true.
5. That the 2nd Plaintiff herein is the suspended Chairman of the 1st Plaintiff, Akwa Ibom State Chapter and he has no mandate, authority or consent of the 1st Plaintiff to commence this suit using the name of the 1st Plaintiff as a party and also deposing to affidavit in this suit on its behalf. That the 1st Plaintiff is a company limited by guarantee with National Officers. Attached and marked Exhibit “A” is a copy of the Certificate of Incorporation of the 1st Plaintiff and the 2nd Plaintiff has no authority of the National Officers of the 1st Plaintiff to commence this suit using the name of the 1st Plaintiff as a party.
6. That the 1st Plaintiff is a National Organization with chapters in the palm producing states of Nigeria including Akwa Ibom State, with elected National Officers. The Defendants herein are only Chapter Officers of the 1st Plaintiff’s chapter in Akwa Ibom State Chapter.
7. That the Defendants are the Secretary, Acting Chairman and Public Relationship Officers of the 1st Plaintiff, Akwa Ibom State Chapter respectively and at no time did we or any other member of the 1st Plaintiff’s National Executive decide to commence this suit with the 1st Plaintiff as a party.
8. That by virtue of the memorandum and articles of Association of the 1st Plaintiff, the 2nd Plaintiff is not empowered or authorized to unilaterally take actions for and in the name of the 1st Plaintiff.
9. That the 2nd plaintiff has no locus standi to commence this action with the name of the 1st Plaintiff.
10. That paragraph 3 of the Defendants’ affidavit is true only to the extent that the 1st Plaintiff is a company limited by guarantee. Exhibit “A” in the affidavit of the plaintiff is not the Memorandum and Articles of Association of the 1st Plaintiff. The said Exhibit “A” in the Plaintiffs’ affidavit is the Proposed Amended Memorandum and Articles of Association of the 1st Plaintiff as is reflected in the covering letter of the Mercantile and Industrial Law Division of the Federal Ministry of Justice to the Registrar General of the Corporate Affairs Commission, Abuja and the series of cancellations and mutilations in the body of the Memorandum and Articles of Association.
11. That the 2nd Plaintiff has no copy of the authentic Memorandum and Articles of Association of the 1st Plaintiff more so as 2nd Plaintiff has no consent and authority of the 1st Plaintiff to commenced this action.
12. That paragraph 4 of the Plaintiffs’ affidavit is true only to the extent that the 2nd Plaintiff was elected as the Chairman of the 1st Plaintiff, Akwa Ibom State Chapter in 2009. The 2nd Plaintiff has since been suspended pending the investigation of allegations of embezzlement of the Association’s funds made against him by officers of the Association.
13. That paragraph 5 of the Plaintiffs’ affidavit is true. On account of the suspension of the 2nd plaintiff pending the aforestated investigation. The 2nd Defendant assumed the position of Acting Chairman of the Association.
14. That paragraph 6 of the Plaintiffs’ affidavit is false. Exhibit “A” in the affidavit of the Plaintiffs does not regulate the management of the 1st Plaintiff’s affairs.”
I have reproduced these paragraphs of the affidavit and Counter-affidavit to show that both parties agree that the 1st appellant is a Company Limited by Guarantee and has a Memorandum and Articles of Association. The 2nd appellant deposed that Exhibit “A” is the authentic Memorandum and Articles of Association the appellants refers to in paragraph 3 of the supporting affidavit to the originating summons. The respondents have denied that it is not, without annexing what they consider to be the authentic Memorandum and Articles of Association which governs the 1st appellant. Oral evidence cannot be used to contradict, alter, add to or vary the contents of Exhibit “A”. See Section 128(1) of the Evidence Act, 2011; Union Bank of Nigeria Ltd. vs. Ozigi (1994) 3 SCNJ 41; Union Bank of Nigeria Ltd. v. Sax Nig. Ltd. (1994) 9 SCNJ 1. The contents of documents may only be proved by the production of such documents. This is made clear under Section 125 of the Evidence Act, 2011 as follows:
“125. All facts, except the contents of documents, may be proved by oral evidence.”
There was no evidence before the learned trial judge that Exhibit “A” did not regulate the management of the affairs of the 1st appellant. If Exhibit “A” is the proposed Amended Memorandum and Articles of Association of the 1st appellant according to the respondents where is the original Memorandum and Articles of Association that had been governing the management of the affairs of the 1st appellant from the day she was incorporated as a Company Limited by Guarantee on 22nd May, 1995 with registration No. RC.271,945? The onus of producing the original Memorandum and Articles of Association of the 1st appellant apart from Exhibit “A” was on the respondents. Section 133(1) of the Evidence Act (supra) reads as follows:
“133(1) In civil cases, the burden of first proving existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.”Having deposed in paragraph 3 of the affidavit in support of the originating summons that Exhibit “A” was the Memorandum and Articles of the 1st appellant, the onus shifted to the respondents to prove otherwise. Section 133(2)-(4) of the Act (supra) read as follows:
“(2) If the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.
(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.
4. The burden of proof shall be discharged on the balance of probabilities in all civil proceedings.”
The appellants sought the following questions to be determined in the originating summons followed by the following reliefs:
“(a) Whether the purported emergency executive meetings or executive meetings of National Palm Produce Association of Nigeria Limited by Guarantee (NPPAN) allegedly held on 18th January, 2010, 25th January, 2010 and 1st February, 2010 were and valid having regard to the provisions of the Memorandum and Articles of Association of National Palm Produce Association of Nigeria Limited by Guarantee and of the Companies and Allied Matters Act?
(b) Whether Elder J.A. Simon can act as the Chairman of National Palm Produce Association of Nigeria Limited by Guarantee, Akwa Ibom State Chapter, in the circumstances?
WHEREFORE the plaintiffs claim against the Defendants as follows:
(a) A DECLARATION that the purported emergency executive meetings or executive meetings of National Palm Produce Association of Nigeria Limited by Guarantee alleged held on 18th January, 2010, 25th January, 2010 and 1st February, 2010 were and are invalid having regard to the provisions of the Memorandum and Article or Association of National Palm Produce Association of Nigeria Limited by Guarantee and of the Companies and Allied Matters Act.
(b) A DECLARATION that all the actions taken howsoever and the entire proceedings of the purported executive meetings of National Palm Produce Association of Nigeria Limited by Guarantee allegedly held on 18th January, 2010, 25th January, 2010 and 1st February, were and are null and void for substantial non-compliance with the provisions of the Memorandum and Articles of Association of National Palm Produce Association of Nigeria Limited by Guarantee and of the Companies and Allied Matters Act.
(c) AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants from interfering or disturbing howsoever the status quo of National Palm Produce Association of Nigeria Limited by Guarantee, Akwa Ibom State Chapter with the 2nd Plaintiff as the Chairman until the end of his tenure by effluxion of time.
(d) AND FOR SUCH FURTHER ORDER(S) as the Honourable Court may deem fit to make in the circumstances of this case.”
The questions can be determined only by an examination of the contents of Exhibit “A” which is the Memorandum and Articles of Association of the 1st appellant. Section 41(1)-(4) of the Companies and Allied Matters Act Cap C20 Laws of the Federation of Nigeria, 2004 reads as follows:
“41 (1) Subject to the provisions of this Act, the memorandum and articles, when registered, shall have the effect of a contract under seal between the company and its members and officers and between the members and officers themselves whereby they agree to observe and perform the provisions of the memorandum and articles, as altered from time to time in so far as they relate to the company, members, or officers as such.
(2) xxxxxxxxxxxxxxxxxx
(3) Where the memorandum or articles empower any person to appoint or remove any director or other officer of the company, such power shall be enforceable by that person notwithstanding that he is not a member or officer of the company.
(4) In any action by any member or officer to enforce any obligation owed under the memorandum or articles to him and any other member or officer, such member or officer may, if any other member or officer is affected, by the alleged breach of such obligation with his consent, sue in a representative capacity on behalf of himself and all other members or officers who may be affected other than any who are defendants and the provisions of Part XI of this Act shall apply.”
The parties in this appeal are bound to observe and perform the provisions of the memorandum and articles of association of the National Palm Produce Association of Nigeria Limited by Guarantee. All the acts of the respondents are ultra-vires the memorandum and articles of the 1st appellant. They are accordingly declared null and void. I also allow the appeal and abide by the orders made by my Lord.