NEW NIGERIAN NEWSPAPERS LIMITED V. OLAYINKA AGBOMABINI (2013)

NEW NIGERIAN NEWSPAPERS LIMITED V. OLAYINKA AGBOMABINI

(2013)LCN/6051(CA)

In The Court of Appeal of Nigeria

On Friday, the 22nd day of March, 2013

CA/K/137/2011

RATIO

COURT OF APPEAL: ATTITUDE OF COURTS TO NON-COMPLIANCE BY A RESPONDENT WITH THE PRESCRIBED MODE OF RAISING A PRELIMINARY OBJECTION IN THE COURT OF APPEAL

APPEAL: GROUNDS OF APPEAL: PARTICULARS OF GROUND OF APPEAL: PURPOSE
Particulars of a ground of appeal are there to support and explain further the complaint raised in the ground of appeal and they are not to be seen in the same way as the grounds of appeal – Federal Medical Center, Ido-Ekiti vs Olajide (2011) 11 NWLR (Pt 1258) 256. Thus, there must be a synergy between the ground of appeal and the particulars stated there under.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

PLEADINGS: IMPORTANCE OF PLEADINGS
Now, it is an aged fundamental principle of civil litigation that the pleadings of parties define and delimit the issues joined by parties in a suit and on which a court is called upon to adjudicate and resolve in order to come to a just and fair decision in the matter. This principle was firmly restated by the Court of Appeal in Awuse Vs Odili (2005) 16 NWLR (Pt 952) at page 504 E-F when the Court said that “the primary function of a pleading is to define and delimit with clarity and precision the real matter in controversy between the parties upon which they can prepare and present their respective cases” and “in addition, it also serves as the basis upon which the court will be called to adjudicate between them.” Therefore, it is of cardinal importance in civil litigations to bear in mind that when parties have in their pleadings agreed on some facts, there is no issue in dispute between them on such agreed matters. When a fact pleaded by the claimant and admitted by the defendant, evidence on the admitted fact is irrelevant and unnecessary.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

CORPORATE LAW: INCORPORATION: IMPLICATION AND ADVANTAGE OF A COMPANY BEING INCORPORATED

The fact of the Appellant being a duly registered limited liability company automatically brings into play, in the circumstances of his case, the concept of corporate personality which has become firmly established since the decision of the English House of Lords in the celebrated case of Salomon Vs Salomon and Company Ltd (1897) AC 22. It means that once a company is incorporated under the relevant laws, it becomes a separate person from the individuals who are its members. The company has capacity to enjoy legal rights and is subjected to legal duties which do not coincide with that of its members. Such company is said to have legal personality and is always referred to as “artificial person” and it can sue and be sued in its own name. It may own property in its own right and its assets, liabilities, rights and obligations are distinct from that of its members – Kano State Oil and Allied Products Ltd Vs Kofa Trading Company Ltd (1996) 3 NWLR (Pt 436) 244, Zest News vs Waziri (2004) 8 NWLR (Pt 875) 267, Aso Motel Kaduna Ltd Vs Deyemo (2006) 7 NWLR (Pt 978) 87, New Resources International Ltd Vs Oranusi (2011) 2 NWLR (Pt 1230) 102. This point was explained by Aderemi, JCA (as he then was), in Companhia Brasileira De Infrastrututira Vs Cobec (Nig) Ltd (2004) 13 NWLR (Pt 890) 376 at 394 -395 thus:
“The single most important consequence of incorporation of company is the separate legal personality which the company acquires. From the date of incorporation mentioned in the certificate of incorporation, the subscribers of the memorandum, together with such other persons as may from time to time become members of the company shall be a body corporate by the name contained in memorandum capable forthwith of exercising all the functions of an incorporated company; that is the purport of Section 37 of CAMA. It is by the provision of this section that a separate legal entity of the body corporate is created. Each company so registered or incorporated under CAMA is quite distinct and separate from each other; the locus classicus is the well-known case of Salomon Vs Salomon and Company Ltd (1897) AC 22. Upon incorporation, a company is regarded as a separate and distinct entity from any one of its shareholders, no matter how many shares he may hold…”PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

CORPORATE LAW: INCORPORATION: INSTANCES WHEN THERE WILL BE A PRINCIPLE OF LIFTING THE VEIL AND THE COMPANY WOULD NOT BE SEEN AS A SEPARATE ENTITY FROM ITS SHAREHOLDERS

The courts do not make a habit of going behind the facade of corporate personality of a company to hold the shareholders or directors liable for the acts of the company except in very rare instances such as where the company has be used as an instrument for illegality or fraud – Adeyemi vs Lan & Baker (Nig) Ltd (2000) 7 NWLR (Pt.663) 33, FDB Financial Services Ltd Vs Adesola (2000) 8 NWLR (Pt 688) 170, Mezu Vs Cooperative & Commerce Bank (Nig) Plc (2013) 3 NWLR (Pt 1340) 188. This was explained by Adekeye, JCA (as he then was) in Vilbeko (Nig) Ltd Vs Nigerian Deposit Insurance Corporation (2006) 12 NWLR (Pt 994) 280 at 295 F-H thus:
“An incorporated limited liability company is always regarded a s a separate and distinct entity from its shareholders and directors. The consequence of recognizing the separate personality of a company is to draw the veil of incorporation over the company. No one is entitled to go behind the veil. This corporate shell shall however be cracked in the interest of justice. Particularly where the company is used as a mask or sham by the director to avoid recognition in the eyes of equity, the court must be ready and willing to open the veil of incorporation to see the characters behind the company in the interest of justice. Since a statute will not be allowed to be used as an excuse to justify illegality or fraud, and once there is clear evidence of fraud or illegality, the veil will be lifted.”PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

CORPORATE LAW: THE JURISTIC PERSONALITY OF A COMPANY IS IMMORTAL AND DOES NOT TERMINATE LIKE THAT OF A NATURAL PERSON

JUSTICES

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

NEW NIGERIAN NEWSPAPERS LIMITED Appellant(s)

AND

OLAYINKA AGBOMABINI Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Kaduna state in Suit No KDH/KAD/681/2010 contained in the ruling delivered by Honorable Justice M.T.M. Aliyu on the 25th of January, 2011. By a Writ of Summons filed on the 27th of July, 2010 but issued by the Registry of the High Court of Kaduna State on the 3rd of August, 2010, the Respondent, as plaintiff, commenced an action in the High Court of Kaduna State in Suit No KDH/KAD/681/2010 against the Appellant, as defendant, and the endorsement on the Writ of Summons read thus:
“The plaintiff was an employee of the Defendant and upon her retirement by the Defendant, the Defendant computed her terminal benefit in the sum of N385,601.68 but has refused to pay same to the Plaintiff:
Whereof the Plaintiff claims against the Defendant as follows:
a. The sum of N385,601.68 representing the assessed terminal benefits due to the Plaintiff from the Defendant occasioned by the retirement of the Plaintiff by the Defendant from the Defendant’s employment.
b. Cost of this action'”
The writ of summons was accompanied by a Statement of Claim, list of witnesses, written deposition of witness on oath, list of documents to be relied on at the trial and copies of the documents. Counsel to the Respondent also filed a motion on notice dated the 26th of July, 2010 but filed on the 27th of July, 2010 and brought pursuant to Order 11 of the High Court of Kaduna (Civil Procedure) Rules along with the Writ of Summons. The motion prayed for:
“An order of this court entering summary judgment against the Defendant and in favour of the Plaintiff in the sum of N385,601.68 representing the final terminal benefits of the Plaintiff payable by the Defendant arising from the retirement of the Plaintiff by the Defendant.”
The motion was supported by an affidavit with exhibits attached and a written address of arguments of Counsel. The Appellant, as defendant, filed a Statement of Defence dated the 26th of August, 2010 and it was accompanied by a written deposition of witness on oath. The Appellant also filed a counter-affidavit, with one exhibit attached, as response to the motion of the Respondent for summary judgment and Counsel to the Appellant filed a written address of arguments on the application.
On the 15th of October, 2010, the Appellant filed a motion on notice praying for an order of Court striking out the suit for want of jurisdiction and want of parties. The motion was supported by an affidavit with exhibits attached and it was accompanied by Counsel’s written address of arguments on the application. Counsel to the Respondent filed a written address of arguments in opposing the motion. Counsel to the Appellant filed a reply address thereon.
The lower court took arguments on the Respondent’s motion for summary judgment along with the arguments on the motion on notice of the Appellant to strike out the suit for want of proper parties and in a considered ruling delivered on the 25th of January, 2011, the lower Court dismissed the application of the Appellant and granted the application of the Respondent. The lower Court entered judgment in favour of the Respondent in the sum of N385,601.68 together with costs of N2,900.00. The Appellant was dissatisfied with the decision and he filed a notice of appeal dated the 27th of January, 2011 against the judgment. The notice of appeal consisted of three grounds of appeal, inclusive of the omnibus ground.
In compliance with the Rules of this court, the Appellant filed its brief of arguments dated the 22nd of June, 2011 on the 23rd of June 2011 and it consisted of nineteen pages. The Respondent, in response, filed a brief of arguments dated and filed on the 9th of September, 2011 and it consisted of twenty-three pages. The Appellant filed a reply brief of arguments consisting of nine pages and it was dated and filed on the 22nd of September, 2011. Counsel to the Respondent argued a preliminary objection on pages six to ten of his brief of arguments and Counsel drew the attention of the Court to the arguments on the preliminary objection at the hearing of the appeal on the 6th of February, 2013 and he moved the Court in respect thereof. Counsel to the Appellant informed the court that he responded to the arguments on the preliminary objection in the reply brief of arguments.
Counsel to the Respondent did not file a notice of preliminary objection stating the grounds of objection, either as a separate document or as part of the Respondent’s brief of arguments. All that Counsel did was to argue the preliminary objection in the brief of arguments. The Court of Appeal Rules stipulates the procedure that a respondent intending to raise a preliminary objection should follow. Order 10 Rule 1 provides that a respondent intending to rely on a preliminary objection to the hearing of an appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of the objection and shall file such notice with the registrar within the same time. Order 10 Rule 3 states that where a respondent fails to comply, the court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent or may make such order as it thinks fit – Kaydee Ventures Ltd vs Minister, Federal Capital Territory (2010) 7 NWLR (Pt 1192) 171.

The attitude of the Courts to non-compliance by a respondent with the prescribed mode of raising a preliminary objection in the Court of Appeal has been varied. In some instances, the non-compliance was treated as fatal. The provision of Order 10 Rule 1 of the Court of Appeal Rules 2011 used to be in Order 3 Rule 15(1) of the Court of Appeal Rules 1981. In Okolo vs Union Bank of Nigeria Ltd (1988) 2 NWLR (Pt.539) 618, Achike, JCA (as he then was), said at page 644:
“It is quite clear to me that no such notice of preliminary objection as prescribed under order 3, rule 15(1)  was filed by the respondent herein nor was any served on the appellants. . . . The respondent having failed to comply with the relevant provisions of Rules of court for objection to hearing of the appeal, the purported aforesaid objection is hereby refused.”
In Arewa iles Plc Vs Abdullahi and Brothers Musawa Ltd (1988) 6 NWLR (Pt 554) 508, Ogebe,JCA (as he then was), said at page 512:
“During the oral hearing of this appeal the learned counsel for the respondent conceded that he did not give formal notice of preliminary objection in accordance with Order 3, rule 15(1) of the Court of Appeal Rules. By Order 3 rule 15(3) of the Court of Appeal Rules, if the respondent failed to comply with this rule, the court may refuse to entertain the objection. Rules of court are meant to be obeyed and are not in our statute books for fancy. Accordingly, in accordance with Order 3 rule 15(3) I refuse to entertain the respondent’s preliminary objection.”
These two passages were quoted with approval and followed by the Supreme Court in Oforkire vs Maduike (2003) 5 NWLR (Pt 812) 166. This decision of the Supreme Court was applied by the court of Appeal in Securities and Exchange Commission vs Kasunmu (2009) 10 NWLR (Pt 1150) 509. The position was reiterated by the supreme court in Nwaolisah vs Nwabufor (2011) 14 NWLR (Pt 1268) 600.
In other instances, the courts have shown a liberal attitude to non-compliance or failure to file a notice of preliminary objection in accordance with rules by holding that it does not render such objection ineffective, so long as the grounds and arguments in support of the objection are incorporated in the respondent’s brief and argued before the appeal is heard – Ajide vs Kelani (1985) 3 NWLR (Pt 12) 248 at
257, Salami vs Mohammed & Anor (2000) 9 NWLR (Pt 673) 469, Uwazurike vs Attorney General, Federation (2007) 8 NWLR (Pt 1035) 1 and Revenue Mobilization, Allocation & Fiscal Commission vs Units Environmental Sciences Ltd (2011) 9 NWLR (Pt 1252) 379.
In more extreme cases, where a respondent did not even state the grounds of the preliminary objection in his brief of arguments but the brief contained arguments on the objection and the appellant responded to the arguments in a reply brief, the courts have gone ahead to consider the preliminary objection. This situation presented itself in C.S.S. Bookshops Ltd. v. The Registered Trustees of the Muslim community in Rivers State (2006) 11 NWLR (Pt.992) 530 and Muhammad, JSC at pages 556 – 557 dealt with it thus:
“Although the 1st respondent’s brief of argument contains arguments on preliminary objection raised regarding the competence or otherwise of some of the grounds of appeal filed by the appellants no notice of the preliminary objection to the hearing of the appeal was filed by the 1st respondent as required by Order 2 rule 9 of the rules of this court within the period of three days prescribed. All the same since the appellants also have responded fully to the objections in the reply brief of argument, I shall deal with the preliminary objection first.”
This passage was quoted by the Court of Appeal in Governor, Imo state vs Amuzie (2009) 13 NWLR (Pt 1157) 34 at 58. In Uwazurike vs Attorney General, Federation supra where such a similar situation arose but the appellant did not file a reply brief in response to the arguments on the preliminary objection, the Supreme Court ignored/discountenanced the submissions and struck out them out.
In the instant case, the Appellant in its reply brief responded fully to the submissions on the preliminary objection in the Respondent’s brief of arguments, this Court will thus consider the preliminary objection. However, it is essential to emphasize that Rules of Court are part of the machinery of justice made by the courts to regulate their proceedings and to help parties present their cases within a procedure made for the purpose of a fair and quick trial. They are designed to assist in obtaining justice with ease, certainty and dispatch. The Rules of Court give predictability and clarity to the system of administration of justice. They partake of the nature of subsidiary legislation by virtue of Section 18(1) of the Interpretation Act and consequently have the force of law. It is the strict compliance with the rules of court that makes for smooth and quick administration of justice. Accordingly, Rules of Court must prima facie be obeyed and followed by all the parties before the court – Aromolaran Vs  Oladele (1990) 7 NWLR (Pt 162) 359, Duke Vs Akpabuyo Local Government (2005) 19 NWLR (Pt 959) 130, Owners of the MV “Arabella” vs Nigeria Agricultural Insurance Corp (2008) 11 NWLR (Pt 1097) 182, Agip (Nig) Ltd vs Agip Petroli International & Ors (2010) 5 NWLR (Pt 1187) 348; Oyegun Vs. Nzeribe (2010) 7 NWLR (Pt 1194) 577. Parties should not make a habit of deliberately ignoring the procedures prescribed in the Rules of Court for putting across their respective cases to the Court, and they should not be encouraged to do so.
The Respondent argued two grounds of objection in his brief of arguments. The first ground was that some of the particulars of error stated in support of the first and second grounds of appeal were inconsistent with the complaints in both grounds of appeal. Counsel submitted that particulars of error should not be independent of the main complain in a ground of appeal but should be ancillary to it and he referred to the cases of Ali Vs Albishir (2008) 3 NWLR (Pt 1073) 94 at 133 – 134 and Ezomo Vs New Nigeria Bank plc (2006) 14 NWLR (Pt 1000) 624 at 641. Counsel referred to the first ground of appeal and stated that the first and the fourth particulars stated there under bore no relation to the complaint in the ground of appeal. Counsel also referred to the second ground of appeal and stated that both particulars stated there under were incompatible with the complaint in the ground of appeal. Counsel urged this Court to strike out the incompatible particulars in the first ground of appeal and the entire second ground of appeal.
The second ground of objection was that the second issue for determination did not arise from any of the grounds of appeal and he submitted that the second issue should be struck out by this Court and he referred to the cases of SPDCN Vs Edamkue (2009) 14 NWLR (Pt 1160) 1 and Kwara Vs Innocent (2009) 1 NMLR (Pt 1121) 179.
In his response arguments, counsel to the Appellant urged this court to discountenance the objection because all the particulars of errors stated in support of the first and second grounds of appeal were related, consistent and had a nexus with the complaint in the respective grounds of appeal. Counsel stated that the second issue for determination was formulated from the second ground of appeal and as such was valid and proper. Counsel submitted that the cases referred to by Counsel to the Respondent were not apposite in the circumstances. Counsel submitted that, without conceding the arguments of the Counsel to the Respondent, even one sole ground of appeal can sustain an appeal and he referred to the case of Alao Vs Akano (2005) All FWLR (Pt 264) 799 amongst others. Counsel urged the Court not to strike out the appeal as a result of any alleged fundamental defect therein and to aim at doing substantial justice in the matter and he referred to the case of Adelusola Vs Akinde (2004) All FWLR (Pt 218) 776 amongst other cases.
On the first ground of objection, it is trite that the purpose of the requirement of stating particulars of a ground of appeal is to inform the respondent and the court of the errors or misdirection alleged in a ground of appeal so as to enable the respondent meet the case of the appellant and for the court to be aware of the nature of the error or misdirection complained of – Munguno vs Bluewhales & Co (2011) 2 NWLR (Pt.1231) 275. Particulars of error are intended to highlight the complaint against the judgment on appeal and they show how the complaint against the judgment is going to be canvassed by the appellant – Diamond Bank Ltd vs Partnership Investment Co Ltd (2009) 18 NWLR (Pt 1172) 67.
Particulars of a ground of appeal are there to support and explain further the complaint raised in the ground of appeal and they are not to be seen in the same way as the grounds of appeal – Federal Medical Center, Ido-Ekiti vs Olajide (2011) 11 NWLR (Pt 1258) 256. Thus, there must be a synergy between the ground of appeal and the particulars stated there under.
The first of ground of appeal complained against the refusal of the lower Court to uphold the arguments of the Appellant that the non-joinder of nineteen Northern States Governors and the Bureau of Public Enterprises as parties in the matter defeated the case of the Respondent as proper parties were not before the Court. All the four particulars of error stated thereon were directed towards this central issue in the ground of appeal and they emanated from the deliberations of the Court in arriving at the decision in its ruling. They are thus related and consistent with the ground of appeal.
With regards to the second ground of appeal, the complaint therein also relates to the non-joinder of nineteen Northern States Governors as parties in the matter. The two particulars of error stated on the ground of appeal, however, are directed at the basis upon which the lower Court entered judgment for the Respondent on the motion for summary judgment. The issues of joinder of parties and summary judgment were dealt with by the lower court as separate matters in its ruling and there was no correlation between the two. The particulars of error of the second ground of appeal are thus not related to or consistent with the complaint in the ground of appeal. It is trite that where the particulars of error stated in a ground of appeal do not relate to the ground of appeal, it will leave such ground bare and therefore incompetent – Iyen vs Federal Republic of Nigeria (2010) 2 NWLR (Pt 1177) 1, Ushie vs Edet (2010) 6 NWLR (Pt 1190) 386, Federal Housing Authority Vs Kalejaiye (2010) 19 NWLR (Pt 1226) 147, Munguno Vs Bluewhales & Co supra. This Court holds that the second ground of appeal is incompetent and it is liable to be struck out.
Going to the second ground of the preliminary objection, it is pertinent to state that there are only two competent grounds of appeal in this appeal, the first and third grounds of appeal. The case of the Respondent in the second ground of objection is that the second issue for determination did not arise from any of the grounds of appeal.
It must be stated that a read through the Appellants’ brief of arguments shows that Counsel to the Appellant failed to specifically connect the issues formulated in the brief of arguments to the ground of appeal they were distilled from. This is a requirement for a good brief of arguments  – Chukwuma vs Ifeloye (2008) 18 NWLR (Pt 1118) 204 at 234-235, Igwe vs Ezeanochie (2010) 7 NWLR (Pt 1192) 61 at 78, Edoho vs State (2010) 14 NWLR (Pt 1214) 651, and Owena Mass Transportation Co Ltd vs Bidat Venture Ltd (2011) 9 NWLR (Pt 1252) 303 at 310. This Court will, however, not sanction the Appellant for this dereliction and will follow the comments of the Supreme Court in Dada Vs Dosunmu (2006) 18 NWLR (Pt 1010) 134 that:
“…though it is very necessary and desirable for the learned counsel for the appellant to always relate or tie issues formulated for determination in the appellants’ brief to the grounds of appeal from which the said issues are distilled, failure to do so may not necessarily result in the issues being struck out for being incompetent particularly where in the opinion of the court, the issues can validly be distilled from the grounds of appeal and in such situation the court can on its own take a close look at the grounds of appeal and the issues as formulated and in order to do substantial justice between the parties, which is the preoccupation of the court, consider the said issues in its judgment. . .”
The second issue for determination formulated by the Appellant was “whether or not on the basis of the evidence adduced before the Trial Court, the Plaintiff/Respondent is entitled to judgment.” This issue can be tied to the third ground of appeal, the omnibus ground, and is thus proper in this appeal.
The notice of preliminary objection of the Respondent succeeds in part and the second ground of appeal is hereby struck out. This takes us to the substantive appeal.
The Appellant distilled two issues for determination in its brief of arguments and these were:
i. Whether or not the trial Court was right to have held/rules that the trial Court had jurisdiction to hear and determine the suit in the absence of the necessary/proper parties before the Honorable Court.
ii. Whether or not, on the basis of the evidence adduced before the trial Court, the Plaintiff/Respondent was entitled to judgment.
Counsel to the Respondent adopted these two issues in the Respondent’s brief of arguments. The issues shall be dealt with separately.
Before delving into the issues for determination, it appropriate to give a background of the facts in this matter. The case of the Respondent, as plaintiff, before the lower court was that she was a staff in the employment of the Appellant and that she was retained in the wake of the restructuring that took place in the Appellant in 1999. It was her case that she was subsequently retired by the Appellant in 2005 and her retirement benefits were calculated by the Appellant to be the sum of N385,601.68 and she was so advised by the Appellant. It was her case that the Appellant refused and/or neglected to pay her the retirement benefits as computed despite repeated demands. The letter of retention of the service of the Respondent, the computation of terminal benefits by the Appellant, the Respondent’s Solicitor’s letter of demand and the Appellant’s response thereto were front loaded along with originating processes.
In its case in response, the Appellant, as defendant, admitted the entire case of the Respondent and stated that the Respondent was one of its two hundred and nine retired staff with outstanding terminal benefits and that due to the reorganization of its operations and the handing over of its management by the Federal Government to the nineteen Northern States Governments through the Bureau of Public Enterprises, it has been unable to meet its financial obligations and pay the outstanding terminal benefits of its retired staff. It was its case that the Federal Government has agreed to pay the outstanding terminal benefits and has directed its management to forward the list of the retired staff and their outstanding benefits to the National Pension Commission in Abuja for payment and that its management had since done so. It was its case that the Appellant has not failed to pay the retirement benefits of the Respondent.
The first issue for determination in this appeal on necessary/proper parties arose from the refusal of the lower Court to accede to the application of the Appellant praying that the lower Court lacked jurisdiction to entertain the claims of the Respondent because the Respondent did not join the nineteen Northern States Governments and the Bureau of Public Enterprises as defendants in the matter.
counsel to the Appellant contended in the brief of arguments that the necessary parties in the matter were not before the lower Court when the learned trial Judge entered judgment in favour of the Respondent and that this was fatal, to the jurisdiction of the court. Counsel stated that the Appellant was being run, managed and controlled by the Federal Government until 2006 when it was returned to the nineteen Northern States Governments through the Bureau of Public Enterprises and that the Northern States Governors’ forum has deliberated extensively on the payment of the retirement benefits of the retired employees of the Appellant.
Counsel further stated that the Federal Government had instituted a panel consisting of the Director General of the Bureau for Public Enterprises, Debt Management Office and consultants to the nineteen Northern States Governments amongst others to examine the issue of payment of benefits of the retired staff of the Appellant. Counsel stated that the nineteen Northern States Governments are the current joint owners and the financial stakeholders in the management and control of the Appellant and are involved in the management of the Appellant and would thus be adversely affected by the outcome of this suit. Counsel referred to and quoted extensively from the cases of Green vs Green (2001) FWLR (Pt 76) 95 at 104, Attorney General of the Federation Vs Attorney General Abia State & Ors (2001) FWLR (Pt 64) 202 at 263 and Olaseni Vs Olaseni (2001) FWLR (Pt 35) 735 on joinder of parties and submitted that the nineteen Northern state Governors were necessary parties to this suit.
In the response arguments on the first issue for determination, Counsel to the Respondent stated that on the pleadings filed by the parties before the lower Court the Appellant admitted that it is a limited liability company registered under the Laws of the Federation and that it contracted the Respondent as its employee. Counsel referred to paragraphs 2 and 3 of the statement of claim and paragraph 2 of the statement of defence. Counsel submitted that by virtue of its being a limited liability company incorporated under the Companies and Allied Matters Act, the Appellant acquired a separate legal personality different from that of its owners and was capable of suing or being sued and that the fact that it is owned by the nineteen Northern States Governments did not invest the Appellant with a different character or greater advantage over other limited liability companies incorporated under the Act. Counsel referred to the cases of Tsokwo Oil and Marketing Co. Vs UTC Nig Plc (2002) 12 NWLR (Pt 782) 437 and NSAMC Ltd Vs Adekoye (2003) 16 NWLR (Pt.845)  128. Counsel stated that the Appellant was thus clothed with the legal personality to sue or be sued in its own name without joining the nineteen Northern State Governors of the Bureau for Public Enterprises.
Further, Counsel stated that the reliefs sought in the lower Court did not include a claim for a declaration or for an injunctive order in respect of any executive or administrative action or decision of either the nineteen Northern States Governments or the Bureau for Public Enterprises, Counsel submitted that there was also no privity of contract between the Respondent and nineteen Northern States Governments or the Bureau for Public Enterprises and that the claims of the Respondent were simply to enforce her employment agreement against the Appellant and there was no cause of action against nineteen Northern States Governments or the Bureau for Public Enterprises. It was the further contention of Counsel that it is settled law that non-joinder of a party was not a sufficient ground to defeat the claim of a plaintiff and he referred to the provisions of Order 13 Rule 16(1) of the Civil Procedure Rules of the High Court of Kaduna State and to the cases of Bello Vs INEC (2010) 8 NWLR (Pt 1196) 342 and Attorney General, Rivers State Vs Attorney General, Akwa Ibom State (2011) 8 NWLR (Pt 1248) 31. Counsel concluded by urging this Court to discountenance the entire arguments of the Counsel to the Appellant on the issue and that the cases relied on by the Counsel were irrelevant to this matter.
As stated earlier, the parties in this suit filed pleadings before the lower Court, statement of claim dated the 26th of July, 2010 (pages 3 and 4 of the records) and statement of defence dated the 26th of August, 2010 (pages 26 and 27 of the records). Now, it is an aged fundamental principle of civil litigation that the pleadings of parties define and delimit the issues joined by parties in a suit and on which a court is called upon to adjudicate and resolve in order to come to a just and fair decision in the matter. This principle was firmly restated by the Court of Appeal in Awuse Vs Odili (2005) 16 NWLR (Pt 952) at page 504 E-F when the Court said that “the primary function of a pleading is to define and delimit with clarity and precision the real matter in controversy between the parties upon which they can prepare and present their respective cases” and “in addition, it also serves as the basis upon which the court will be called to adjudicate between them.” Therefore, it is of cardinal importance in civil litigations to bear in mind that when parties have in their pleadings agreed on some facts, there is no issue in dispute between them on such agreed matters. When a fact pleaded by the claimant and admitted by the defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted – Bunge Vs Governor, Rivers State (2006) 12 NWLR (Pt 995) 573 at 599-600 B-A. This point was succinctly explained by Oputa, JSC in Onobruchere & Anor Vs Esegine & Anor (1986) 2 SC 385 at 397 thus:
“An onus of proof does not exist in vacuo. The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be any burden of proof where there are no issues in dispute between the parties. For example, if the plaintiff’s claim is admitted, that will be the end of the story. Similarly, if a particular averment of the plaintiff is admitted, there will no longer be an onus to prove what has been admitted by the opposite party. Therefore to discover where the onus lies in any given case, the court has to look critically at the pleadings.”
Looking at the pleadings of the parties in this suit, it was not in dispute that the Appellant was a limited liability company registered under the laws of Nigeria. The fact was pleaded in paragraph 2 of the statement of claim and was admitted in paragraph 2 of the statement of defence. The fact of the Appellant being a duly registered limited liability company automatically brings into play, in the circumstances of his case, the concept of corporate personality which has become firmly established since the decision of the English House of Lords in the celebrated case of Salomon Vs Salomon and Company Ltd (1897) AC 22. It means that once a company is incorporated under the relevant laws, it becomes a separate person from the individuals who are its members. The company has capacity to enjoy legal rights and is subjected to legal duties which do not coincide with that of its members. Such company is said to have legal personality and is always referred to as “artificial person” and it can sue and be sued in its own name. It may own property in its own right and its assets, liabilities, rights and obligations are distinct from that of its members – Kano State Oil and Allied Products Ltd Vs Kofa Trading Company Ltd (1996) 3 NWLR (Pt 436) 244, Zest News vs Waziri (2004) 8 NWLR (Pt 875) 267, Aso Motel Kaduna Ltd Vs Deyemo (2006) 7 NWLR (Pt 978) 87, New Resources International Ltd Vs Oranusi (2011) 2 NWLR (Pt 1230) 102. This point was explained by Aderemi, JCA (as he then was), in Companhia Brasileira De Infrastrututira Vs Cobec (Nig) Ltd (2004) 13 NWLR (Pt 890) 376 at 394 -395 thus:
“The single most important consequence of incorporation of company is the separate legal personality which the company acquires. From the date of incorporation mentioned in the certificate of incorporation, the subscribers of the memorandum, together with such other persons as may from time to time become members of the company shall be a body corporate by the name contained in memorandum capable forthwith of exercising all the functions of an incorporated company; that is the purport of Section 37 of CAMA. It is by the provision of this section that a separate legal entity of the body corporate is created. Each company so registered or incorporated under CAMA is quite distinct and separate from each other; the locus classicus is the well-known case of Salomon Vs Salomon and Company Ltd (1897) AC 22. Upon incorporation, a company is regarded as a separate and distinct entity from any one of its shareholders, no matter how many shares he may hold…”

Further, it is settled law that the juristic personality of a company is a creation of the law and unlike a natural person whose legal existence terminates on death, the juristic personality of a company is immortal as long as the law creating it allows its existence and it is only subject to demise in accordance with the law. Under the provisions of the Companies and Allied Matters Act, a company only loses its legal entity and ceases to exist in law when it is fully wound up and dissolved. Therefore, the take-over of the assets and liabilities of a company by a group of persons or by another company does not terminate the legal personality of the company – Nigerian Deposit Insurance Corporation Vs Financial Merchant Bank Ltd (1997) 4 NWLR (Pt 501) 519, Commercial Bank (Credit Lyonnais) Nig Ltd Vs Okoli (2009) 5 NWLR (Pt 1135) 446.
The pith of the submissions of the Counsel to the Appellant on the first issue for determination is that since the nineteen Northern States Governments had taken over the ownership and the finding of the Appellant through the Bureau of Public Enterprises and had deliberated extensively on the payment of the retirement benefits of the retired employees of the Appellant and since the Director General of the Bureau for Public Enterprises and consultants to the nineteen Northern States Governments were part of a panel set up by the Federal Government to examine the issue of payment of benefits of the retired staff of the Appellant, they ought to be joined as parties in this suit.
As stated earlier, the claims of the Respondent in this suit are simply for terminal benefits due and payable to her by the Appellant, a limited liability company. The Respondent did not allege that the Appellant was used as an instrument of fraud or illegality by its owners. In the circumstances, the submission of Counsel to the Appellant, with utmost respect to him, was an open display of ignorance of the rudimentary principles of company law. Developing the arguments of Counsel to the Appellant further, they mean that where an employee of a company with over one thousand shareholders is wrongfully dismissed and the dismissal is discussed and deliberated upon at the Annual General Meeting of the company, then for an action by that employee to redress his wrongful dismissal to be proper, all the shareholders of the company must be joined along with the company as defendants in the matter. How ludicrous can you get? This has never been the position of the law since after the decision of the English House of Lords in the case of Salomon Vs Salomon and Company Ltd (1897) AC 22 and there is no likelihood that it will ever be the position of the law in future.
The nineteen Northern States Governments and the Bureau of Public Enterprises have no business whatsoever in this case and they should never have been proposed as parties in the matter. The learned trial Judge was very correct when he ruled that the nineteen Northern States Governments and the Bureau of Public Enterprises were not necessary or proper parties in this matter. The first issue for determination is resolved against the Appellant.
On the second issue for determination, i.e. whether or not, on the basis of the evidence adduced before the trial Court, the Plaintiff/Respondent was entitled to judgment, Counsel to the Appellant stated that there were conflicts in the affidavit evidence led by the parties on the motion for summary judgment and that the lower Court ought to have set the matter down for trial to enable the parties lead oral evidence instead of entering judgment. Counsel stated that the burden of proof was on the Respondent, as plaintiff, and that the Respondent ought to have been called upon to lead evidence before the lower Court made findings in her favour and that the lower Court was enjoined to base its findings only on evidence properly adduced before it. Counsel referred to the cases of Union Bank of Nigeria Plc Vs Ishola (2002) FWLR (Pt 100) 1253, Nigeria Industrial Development Bank Ltd vs Olalomi Industries Ltd (2002) FWLR (Pt 98) 979,Ndili Vs Sumade (2000) FWLR (Pt 5) 750. Counsel submitted that this was a situation that called for this Court’s interference with the findings of the lower Court and he referred to the cases of Ukatta Vs Ndinaeze (1997) 4 SCNJ 117 and Mandilas Ltd Vs Ayanru (2000) FWLR (Pt 7) 1129.
In response, Counsel to the Respondent, stated that the claim of the Respondent was a liquidated money demand and was very suited for the summary judgment procedure set down in Order 11 of the High Court of Kaduna State (Civil Procedure) Rules 2007. Counsel referred to the cases of Lewis Vs UBA Plc (2006) 1 NWLR (Pt 962) 546 and Thor Ltd Vs FCMB Ltd (2005) 14 NWLR (Pt 946) 696 on the nature and purpose of the summary judgment procedure and on what a defendant seeking for leave to defend under the procedure must put forward in his statement of defence or affidavit in response. Counsel submitted that the case put forward by the Appellant, as defendant, before the lower Court did not meet the requirements necessary for the grant of leave to defend. Counsel stated that there was no conflict in the affidavits of the parties on the summary judgment procedure and that, even if such conflicts existed, it was not in all cases that the court calls for oral evidence, particularly where there are sufficient documentary evidence before the court and he referred to Yakubu Vs NITEL Ltd (2006) 9 NWLR (Pt 985) 367. Counsel urged the Court to resolve the issue in favour of the Respondent. Judgment was entered by the lower Court on the Respondent’s motion for summary judgment filed pursuant to the provisions of Order 11 of the High court of Kaduna State (Civil procedure) Rules 2007. The term summary judgment denotes a judgment usually granted by court on a claim about which there is no genuine issue of material fact, and upon which the claimant is entitled to prevail as a matter of law. Primarily, the court takes into consideration the pleadings, the motions, and, where necessary, additional evidence adduced by the parties to determine whether or not there is a genuine issue of material fact, rather than one of law. The primary object of summary judgment procedure is to allow speedy disposition of a controversy without the need for trial – Nnabude Vs G N Godiscoy (W/A) Ltd (2010) 15 NWLR (Pt 1216) 365, Bona V ile Ltd Vs Asaba ile Mill Plc (2013) 2 NWLR (Pt 1338) 357.

Order 11 of the High Court of Kaduna State (Civil Procedure) Rules 2007 provides for summary judgment where it is clearly shown on the papers before the court that the defendant has no good defence to a plaintiff’s claim. The whole purpose of the summary judgment procedure is to ensure justice to a plaintiff and minimize delay where there is obviously no defence to his claim and thus prevent the grave injustice that might occur through a protracted and immensely frivolous litigation. It is to prevent sham defence from defeating the right of a plaintiff by delay and thus causing great loss to a plaintiff. A sham defence is an unreal, fake and deceitful defence. No amount of sophistry or technical pyrotechnics can launder a sham defence into a real defence to a plaintiff’s pleaded facts and verifying evidence. In other words, the summary judgment rules are specially made to help the court achieve their primary objective, i.e. to do justice to the parties by hearing their cases on the merit with utmost dispatch and prevent the frequent outcry that justice delayed is justice denied United Bank for Africa Plc vs Jargaba (2007) 11 NWLR (Pt 1045) 247, University of Benin Vs Kraus Thompson Organisation Ltd (2007) 14 NWLR (Pt 1055) 441.
Order 11 Rule 1 of the High Court of Kaduna State (Civil Procedure) Rules states that where a plaintiff reasonably believes that the defendant has no defence to his claim, he shall file with the originating process, the statement of claim, the exhibits, the depositions of witnesses and an application for summary judgment and the said application shall be supported by an affidavit stating the grounds and a written brief in respect thereof. Order 11 Rule 4 provides that a defendant who is served with all the processes referred to in rule 1 shall not later than the time prescribed for defence file: (i) his statement of defence; (ii) deposition of witnesses; (iii) exhibits to be used in his defence; and (iv) a written brief in reply to the plaintiff’s application for summary judgment. Order 11 Rule 5(1) stipulates that 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 defence. Order 11 Rule 5(2) states that where it appears to a judge that the defendant has no good defence, the Judge may thereupon enter judgment for a claim.
What these provisions do is that where a plaintiff applies for judgment under the summary judgment procedure and the case of the plaintiff is suited for the procedure, the burden is put on a defendant to satisfy a trial court that he has a good defence, or to disclose other facts entitling him to defend, otherwise judgment would be entered for the plaintiff.

The Supreme Court has stated and restated what a defendant must show to be let in to defend under the summary judgment procedure and these are that:
i. The defence of the defendant must condescend upon particulars and as far as possible deal specifically with the plaintiff’s claim and should also clearly and concisely state what the defence is;
ii. A mere denial by the defendant of being indebted to the plaintiff is not enough, the defence should state why the defendant is not indebted in full or in part, and then state the true position;
iii. It is also not enough for the defendant to show a case of hardship, nor a mere inability to pay;
iv. In all cases the defendant must provide sufficient particulars to show that there is a bona fide defence;
v. Only defences on the merit are allowed; the defendant cannot rely on sham defence;
vi. Where the defendant raises legal objection, the fact and the point of law arising therefrom must be clearly and adequately stated.
See the cases Nishizawa vs Jethwani (1984) 12 SC 234, Macaulay vs NAL Merchant Bank Ltd (1990) 4 NWLR (Pt 144) 283 and Sanusi Brothers (Nigeria) Ltd Vs Cotia Commercio Exportacao E Importacao SA (2000) 11 NWLR (Pt 679) 566.
In the instant case, the Appellant both in the statement of defence and in the counter-affidavit to the application for summary judgment, admitted the entire case put forward by the Respondent, that the Respondent was one of its staff and that she was engaged on the 1st of August, 1995 and she was retired on the 4th of July, 2005 and that her terminal benefits was N385,601.68 as calculated by its staff and advised to the Respondent by the letter dated 22nd of August 2005. The Appellant also admitted that it was yet to pay the said sum to the Respondent despite demands made therefore (see pages 17 to 21 of the records). The defence put forward by the Appellant was that the Respondent was one of its two hundred and nine retired staff with outstanding terminal benefits and it was having financial difficulty in paying the outstanding benefits because of a change over in its ownership from the Federal Government to the nineteen Northern States Governments through the Bureau of Public Enterprises.
The learned trial Judge held in the ruling that rather than constitute a defence, these facts disclosed by the Appellant admitted the claim of the Respondent and only pleaded for time to settle the liability without giving specific details and that this cannot constitute a defence to the Respondent’s claim. It is obvious that all that Appellant stated in its responses to the claims of the Respondent was “Yes, I am owing the Respondent the sum of N385,601.68 as terminal benefits just like I am owing two hundred and eight other retired staff and I am having difficulty in paying the terminal benefits of not only the Respondent but also of the others.” Such a stance by a defendant in a matter under the summary judgment procedure has been held not to constitute a triable defence worthy of being granted leave to defend – Agbabiaka Vs. First Bank of Nigeria Plc (2007) 6 NWLR (Pt 1029) 25, United Bank for Africa Plc vs Jargaba supra, University of Benin vs Kraus Thompson Organisation Ltd supra. This court cannot thus fault the reasoning of the learned trial Judge on the issue.
Counsel to the Appellant alleged that there were conflicts in the affidavits of the parties on the summary judgment and that as such the learned trial Judge ought to have called for oral evidence. Counsel, however, did not point out the alleged areas of conflict. Conflict in affidavits occurs where there are facts in two affidavits which are inconsistent and cannot be reconciled. Reading through the affidavit of the Respondent in the support of the application for summary judgment and the counter-affidavit of the Appellant thereto, there are no inconsistent or irreconcilable facts in them. There was nothing requiring a call for oral evidence in this matter.
The Appellant did not disclose any defence either in its statement of defence or in the counter-affidavit to the application for summary judgment to warrant the claims of the Respondent being sent to trial. The second issue for determination is resolved against the Appellant.
In conclusion, this Court finds that this appeal is totally misconceived and devoid of any merit. It is a matter that a discerning and serious minded Counsel should never have brought on appeal before this Court. The appeal is dismissed in its entirety. The Management of the Appellant is advised to take a leaf from the adage that says that any employer of labour who desires to prosper, progress and get the blessings of the Almighty must learn the habit of paying his workers their wages and entitlements “before the sweat on their backs dry” . The Respondent has been further denied of her legitimate due for at least another two years by reason of this frivolous and vexatious appeal. The Respondent is awarded the cost of this appeal assessed at N75,000.00. These shall be the orders of this Court.

DALHATU ADAMU, J.C.A.: I have gone through the draft of the lead judgment just delivered by my learned brother H.A.O. Abiru JCA. I subscribe with his reasoning and the conclusion he reached in the said lead judgment that the appeal is totally misconceived and devoid of any merit. I too hereby dismiss the appeal in its entirety. I consequently abide by the consequential orders reached in the said lead judgment including the order on costs.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I have read in advance the judgment of my learned brother, Abiru, J.C.A., and I agree completely that this appeal is unfounded and ill-conceived. He had, in detailed form, resolved the points raised in the preliminary objection and the two issues postulated by the Appellant in the Appellant’s Brief of Argument. The pleadings of the parties are plain and clear. Paragraph 2 of the Respondent’s Statement of Claim which described the Appellant as a Limited Liability Company registered under the Laws of the Federation as a publishing company with Head Office/registered office at Ahmadu Bello Way, Kaduna within the jurisdiction of the Court was, without mince of words, and, equivocation, admitted by the Appellant at paragraph 2 of its Statement of Defence. The law is that any fact that is admitted need no further proof. The Appellant is bound by its pleadings. It is also an established principle of law that an incorporated company is a separate legal entity which fulfill its own obligations under the law. It is a separate and distinct entity from its directors and/or shareholders, therefore, the assertion that the Appellant is owned by the 19 (Nineteen) Northern State Government notwithstanding.
Then, with regard to the said sum of N385,601.68 being the terminal benefits of the Respondent, said to have been computed by the Appellant, the Appellant’s Statement of Defence is replete with admissions of it’s indebtedness to the Respondent in that regard. The Appellant did not deny its letter of the 5th July, 2010 to the Respondent’s Solicitors, Habeeb & Co; which reads thus:

5th July, 2010

Habeeb & Company,
Legal Practitioners,
Y.A. Ahmed House,
Opposite Conoil Petrol Station,
1st Floor F.6 Ahmed Bellow Way,
Kaduna.

Dear Sir,

RE: DEMAND FOR PAYMENT OF THE SUM OF N385,601 FINAL ENTITLEMENT DUE TO OLAYINKA AGBOMABINI

Your letter on the above subject matter dated 28th June, 2010 refers.
It is true that your client (Olayinka Agbomabini) was our staff who left our company on 4th July, 2005 and her benefits was assessed to the June of N385,601.60 on 22nd August, 2005.
However, before she left the company, there was a change of status of the New Nigerian Newspapers. The company was handed over back to the 19 Northern States Government by the Federal Government. Thus had stalled payment of benefits even to those workers who were retired since 2000.
Presently, the Federal Government has accepted to settle all the liabilities of the company which shall include payment of gratuities and pension arrears of all retired staff of the company from its inception to date.
In view of the above developments, you can understand that your client was not alone in the problem.
Even at paragraph 9 of its Statement of Defence, it says thus:
“that the Defendant has not refused to pay the entitlement of the Plaintiff.”
In the six paragraph affidavit in support of the Respondent’s Motion on Notice dated the 26th July, 2010 for an order of the lower Court entering summary judgment against the Defendant and in favour of the Plaintiff in the sum of N385, 601.86, the Respondent, at paragraphs 2, 3 and 4 therein succinctly laid out the basis for her claim as buttressed by the hereinbefore reproduced letter of the Appellant dated 5/7/2010. The Respondent filed a counter-affidavit of five paragraphs and then reiterated the facts averred in its Statement of Defence and equally, rubbed in the name of the Federal Government as having agreed to pay the outstanding gratuities of its former staff whose names appeared on the compiled list inclusive of the Plaintiff. This, I must observe, does not change the fact the Appellant is the one indebted to the Respondent which the Appellant clearly acknowledged. The question is, whether the Respondent had any contractual relationship with the Federal Government of Nigeria as at 4th July, 2005 when she retired from the services of the Appellant? Certainly, not. Even if the Federal Government, on its own volition decided to render a certain help to the Appellant in its payment of terminal benefits of its retired workers, that, definitely would not change the nomenclature of the actual debtor of the Respondent’s terminal benefit. Also, it would not change the fact that the Appellant is indeed the one indebted to the Respondent which the Appellant copiously admitted in its letter, dated 5/7/10 and in its Statement of Defence. As could be perceived from the record before this Court, there is no iota of conflict in the facts placed before the lower Court by the parties.
Black’s Law Dictionary, 9th Edition defines summary judgment as a judgment granted on a claim or defence about which there is no genuine issue of material fact and upon which the applicant is entitled to prevail as a matter of law. The Court considers the contents of the pleadings, the motions and additional evidence adduced by the parties to determine whether there is a genuine issue of material fact rather than one of law. It is said that this procedural device allows the speedy disposition of a controversy without the need for trial.
The salient questions are; “What would slating the matter down for oral evidence to be adduced achieve, than delay? Would calling oral evidence change the facts that:- (1) the Federal Government is no longer the employer of the Respondent; (2) the Appellant was the employer of Respondent up until 4/7/2005 when she retired from service; (3) The Respondent addressed the letter dated 5/7/10 to the Solicitors of the Respondent admitting owing the Respondent her terminal benefits in the sum of N385,601.68? Definitely not. Therefore, issue No. 2 raised by the Appellant is bereft of any reasoning. The indebtedness was clearly admitted by the Appellant. The legal authorities buttressing the position of this Court on the two issues propounded by the Appellant have been fully expressed and cited in the leading judgment of this Court. This appeal is devoid of merit, and l, too, dismiss the same. I abide by the order of costs made in the main judgment.

Appearances

Mr. Lawrence BasseyFor Appellant

AND

Mr. O. I. HabeebFor Respondent