NEW TREASURE SUITE (NIG) LTD v. MADUKA (2022)

NEW TREASURE SUITE (NIG) LTD v. MADUKA

(2022)LCN/17202(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Friday, February 11, 2022

CA/K/15/2016

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

NEW TREASURE SUITE NIGERIA LIMITED APPELANT(S)

And

MR. IKECHUKWU MADUKA RESPONDENT(S)

RATIO

THE POSITION OF LAW ON THE WAY OF RAISING AN OBJECTION TO AN IRREGULAR OR INCOMPETENT GROUND OF APPEAL

We have stated, several times, that objection to an irregular or incompetent ground of appeal is done by way of a motion on notice, calling the attention of the Court and of the appellant to such defect and urging the Court to strike out the ground(s). See Esogwa & Ors Vs Nwosu (2020) LPELR-50610 (CA) and the case of Opeyemi Vs State (2019) LPELR-48764(SC), where it was held:
This Preliminary Objection is against certain grounds of the appeal, specifically grounds 2, 3 and 4 in a way that smacks of an academic journey into intellectual discourse and nothing more apart from taking umbrage on some grounds and not on the appeal itself. The Supreme Court had in the case of Oladokun v Olawoyin (2017) All FWLR (Pt.872) 1441 deprecated this mode of raising of objection thus:- “A preliminary objection can only be taken against the hearing of an appeal and not against one or more grounds of appeal which are capable of disturbing the hearing of the appeal. A Preliminary Objection should be capable, if successfully taken of putting an end to the hearing of the appeal. An objection to qualify as preliminary objection should require serious argument and preliminary objection consideration on a point of law which if decided, one way or the other, is going to be decisive of litigation. In other words, the purpose of preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective which if it succeeds would put an end to the appeal. In the instant case, where the preliminary objection filed by the 1st respondent was filed against some grounds of appeal, the Court of Appeal struck same out”. This preliminary objection is really a waste of the Court’s precious time which cannot terminate the appeal, the other ground would sustain the appeal assuming the grounds 2, 3 and 4 were invalid and they are not.” Per PETER-ODILI, JSC
We have stated, several times, that objection to an irregular or incompetent ground of appeal is done by way of a motion on notice, calling the attention of the Court and of the appellant to such defect and urging the Court to strike out the ground(s). See Esogwa & Ors Vs Nwosu (2020) LPELR-50610 (CA) and the case of Opeyemi Vs State (2019) LPELR-48764(SC), where it was held:
This Preliminary Objection is against certain grounds of the appeal, specifically grounds 2, 3 and 4 in a way that smacks of an academic journey into intellectual discourse and nothing more apart from taking umbrage on some grounds and not on the appeal itself. The Supreme Court had in the case of Oladokun v Olawoyin (2017) All FWLR (Pt.872) 1441 deprecated this mode of raising of objection thus:- “A preliminary objection can only be taken against the hearing of an appeal and not against one or more grounds of appeal which are capable of disturbing the hearing of the appeal. A Preliminary Objection should be capable, if successfully taken of putting an end to the hearing of the appeal. An objection to qualify as preliminary objection should require serious argument and preliminary objection consideration on a point of law which if decided, one way or the other, is going to be decisive of litigation. In other words, the purpose of preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective which if it succeeds would put an end to the appeal. In the instant case, where the preliminary objection filed by the 1st respondent was filed against some grounds of appeal, the Court of Appeal struck same out”. This preliminary objection is really a waste of the Court’s precious time which cannot terminate the appeal, the other ground would sustain the appeal assuming the grounds 2, 3 and 4 were invalid and they are not.” Per PETER-ODILI, JSC. PER MBABA, J.C.A.

THE POSITION OF LAW ON A COMPANY BEING A SEPARATE AND LEGAL ENTITY

The law is, however, trite that a limited liability company is a separate personality, different from its directors and promoters, and so should sue or be sued in its own name as regards its property or interest. I recently considered in depth and determined such issue in the case of Sadiq & Ors Vs Yunusa (2022) LPELR-56568 CA, where we held:
“…This calls to question the capacity of the Respondent to institute the action, having not been done jointly with the said company, Sani Brothers Ltd. And if Respondent, in fact, had the authority of the company to initiate the action, failure to produce such authority, was fatal as it would appear the Respondent was a busybody over a claim, which only the company had a duty to originate! The law is trite that a limited liability company is completely a different legal entity, separate from the persons who formed and/or promoted or run it. See the case of Abacha & Anor Vs A.G. Fed. & Ors (2013) LPELR – 21479 CA, where it was held: “The companies listed for investigation are severally a legal entity each with its individual personality. In the instant case, though the companies listed for investigation may be owned by the Abacha family, the companies are at law different persons altogether from the subscribers to the memorandum of their association. The companies are not in law the agents of the subscribers or trustees for them. The subscribers as members are not liable in any shape or form, except to the extent and in the manner provided by the Companies and Allied Matters Act, 1990. See Also Motel Kaduna Ltd v. Deyemo (2006) 7 NWLR (pt. 978) page 93. In Ashibuogwu v. Attorney – General (Bendel) (1988), NWLR (pt.69) page 138. It was held that a government owned limited liability company posses a legal personality of its own. It can sue and be sued by its name. Its shareholders, even if the major or sole shareholder is the Federal Government, it cannot be sued for debt incurred by the Company. See Macaura v. Northern Assurance Co. Ltd. (1975) AC 619. A. L. Underwood Ltd v. Bank of Liverpool and Motors Ltd (1924) 1 KB 775. An incorporated company is a creation of law, clothed with independent legal personality from the moment of its incorporation. It has a distinct and separate personality from those that laboured to give birth to it. See Salomon v. Salomon & Co. Ltd (1897) AC 22 at 51, Trenco Nigeria Ltd v. African Real Estate Ltd (1978) 1 LRN 146 at 153, Marina Nominees Ltd v. Federal Board of Inland Revenue (1986) 2 NWLR (pt.20) page 48 at 61. A company registered is a separate and distinct entity from any one of its shareholders, no matter how many shares he may hold. See Section 37 of the Company and Allied Matters Act 1990, CBDI v. COBEC (Nig) Ltd (2004) 13 NWLR (pt. 890) page 376, K. S. O and Allied Products Ltd v. Kafa Trading Co. Ltd (1996) 3 NWLR (pt.436) Page 244.” Per ABOKI, JCA. See also New Resources Int’l Ltd and Anor Vs Oranusi (2010) LPELR – 4592 (CA), where my Lord, Okoro JCA (as he then was) stated: “Since the decision of the House of Lords in 1897 in the much celebrated case of Salomon v. Salomon and Company Ltd (1897) AC 22, it established firmly the concept of corporate personality which means that once a company is incorporated under the relevant laws, it becomes a separate person from the individuals who are its members. It has capacity to enjoy legal rights and is subjected to legal duties which do not coincide with that of its members. Such a company is said to have legal personality and is always referred to as an “artificial person”. PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against the judgment of Kano State High Court in Suit No. K/81/2015, delivered on 18th, May 2015, by Hon. Justice Aisha Ibrahim Mahmud, whereof she gave judgment to the plaintiff in the sum of One Million and Eighty Thousand Naira (₦1,080,000.00) only, being a debt owed.

At the trial Court, the Respondent (as Plaintiff) had sought the following reliefs:
1) The sum of ₦1,080,000 (One Million Eighty Thousand Naira Only) being the amount due to the plaintiff from the defendant.
2) 10% Court interest on the judgment sum from the date of judgment till the judgment sum is liquidated.
3) Cost of this action.

By motion, filed on 7/4/2015, the matter was slated for 18/4/2015, for hearing under the Summary Judgment Procedure (Order 11 Kano State High Court (Civil Procedure) Rules, 2014). The Defendant/Appellant was served with the processes but did not consider it prudent to file any document to challenge the case, because, according to Appellant, the Exhibits A&B as well as the other documents placed before the Court clearly showed that the Plaintiff/Respondent did not supply any electrical materials/goods to the Defendant/Appellant, in his personal name and capacity. On the 18/5/2015, the plaintiff’s Counsel moved the application for the Summary Judgment, which was not opposed and the application was granted.

Appellant later brought this appeal, saying that there was no contractual relationship between the parties. See the Notice of Appeal on Pages 65 to 69 of the Records of Appeal.

Appellant filed brief on 17/6/2016 and distilled 6 issues for the determination of the appeal, as follows:
1) Whether in the circumstance, the learned trial judge and or the lower Court had jurisdiction to entertain this action, commenced by the plaintiff/respondent for electrical goods supplied by Messrs. El-Liman Investment Nig. Ltd to the Appellant and consequently give judgment in favour of the plaintiff/respondent, when the proper plaintiff to institute the same was not before the Court and the plaintiff/respondent has no locus standi (grounds 3 & 4).
2) Whether in the circumstances, it was proper for the plaintiff/respondent, being a DIRECTOR in EL-Liman Investment Nig Ltd and ipso facto, an agent of a disclosed principal, to commence this action for the debt owed to the said El-Liman Investment Nig Ltd in his capacity (Ground 16).
3) Whether having regard to all documents including the writ of summons and statement of claim placed before the lower Court, it can be said that the proper parties to the transactions were before the Court. (Ground 7).
4) Whether in the circumstances, the cause of action for the debt in the sum of ₦1,080,000, being the amount for the electrical parts/goods supplied to the defendant/Appellant by Messrs El-Liman Investment Nig Ltd had accrued so as to commence an action to recover the same. (Ground 5)
5) Whether, having regard to the provision of Order 11 Kano State High Court (Civil Procedure) Rules, 2014, and in the face of documents placed before the Court, the learned trial judge was right to give judgment in favour of the plaintiff/respondent for the said sum of ₦1,080,000 (Ground 2).
6) Whether the learned trial judge was right to give judgment to the Plaintiff/Respondent for the sum of ₦1,080,000, without weighing, evaluating and assessing the evidence placed before the Court. (Ground 1).

The Respondent filed his brief on 25/7/2016 and also filed a preliminary objection on the same date seeking the striking out of the appeal on the ground that the appeal did not relate to the decision of the trial Court and that the grounds of the Appeal were incompetent. The Respondent’s Counsel argued the preliminary objection in the Respondent’s Brief, and also formulated a lone issue for the determination of the Appeal, in the alternative, as follows:
“Whether the learned trial Judge was right in entering judgment in favour of the Respondent.”

PRELIMINARY OBJECTION
The Respondent’s preliminary objection quarreled with grounds 2, 3, 4, 5 and 6 of the Appeal, saying the same contravened Order 6 Rule 2(3) of the Court of Appeal Rules, 2016, and that the particulars of the said grounds are narratives, argumentative and irrelevant. He also said that the particulars in support of the Grounds did not relate to the Grounds of the Notice of Appeal. He relied on the case of Adah Vs Adah (2001) FWLR (Pt 41) 1815 at 1923 and other cases.

Appellant did not file any reply brief, but I noticed that the Respondent did not specify which particular ground of the Notice of Appeal offended the rules, apart from generally referring to grounds 2, 3, 4, 5 and 6 and did not state how the particulars of such grounds contravened the Order 6 Rule 2(3). I have had a close look at the said grounds 2, 3, 4, 5 and 6 of the grounds of appeal and cannot see how to fault the said grounds of appeal, apart from noting that they are verbose and repetitive. But the complaints are clear and understood, and I do not think can mislead the Respondent.

I should also add that picking quarrel with a ground or grounds of appeal does not call for raising a preliminary objection to the appeal, under Order 10 Rule 1 of the Court of Appeal Rules, 2016 (now 2021 Rules), as the remaining grounds, not complained against, can still sustain the Appeal, even if the complaint is upheld. We have stated, several times, that objection to an irregular or incompetent ground of appeal is done by way of a motion on notice, calling the attention of the Court and of the appellant to such defect and urging the Court to strike out the ground(s). See Esogwa & Ors Vs Nwosu (2020) LPELR-50610 (CA) and the case of Opeyemi Vs State (2019) LPELR-48764(SC), where it was held:
This Preliminary Objection is against certain grounds of the appeal, specifically grounds 2, 3 and 4 in a way that smacks of an academic journey into intellectual discourse and nothing more apart from taking umbrage on some grounds and not on the appeal itself. The Supreme Court had in the case of Oladokun v Olawoyin (2017) All FWLR (Pt.872) 1441 deprecated this mode of raising of objection thus:- “A preliminary objection can only be taken against the hearing of an appeal and not against one or more grounds of appeal which are capable of disturbing the hearing of the appeal. A Preliminary Objection should be capable, if successfully taken of putting an end to the hearing of the appeal. An objection to qualify as preliminary objection should require serious argument and preliminary objection consideration on a point of law which if decided, one way or the other, is going to be decisive of litigation. In other words, the purpose of preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective which if it succeeds would put an end to the appeal. In the instant case, where the preliminary objection filed by the 1st respondent was filed against some grounds of appeal, the Court of Appeal struck same out”. This preliminary objection is really a waste of the Court’s precious time which cannot terminate the appeal, the other ground would sustain the appeal assuming the grounds 2, 3 and 4 were invalid and they are not.” Per PETER-ODILI, JSC
See also the case of Alaribe Vs Okwuonu (2015) LPELR – 24297 CA, where we held:
Whereas in the former, the Notice of preliminary objection ought to be filed, separately, at least, 3 clear days to the hearing of the appeal, to give the opponent due notice before arguing it, either in the Respondent’s brief or separately, in the latter situation, the Respondent only needs to file a motion to highlight the defects in the ground(s), and the same can be properly raised in the Respondent’s brief and argued therein See the case of Innocent Okereke & Anor vs. Innocent Adiele: CA/PH/421/2008, a recent decision of this Court, delivered on 20/11/14, where we said:
“The position of this Court, as per the authorities of the Apex Court, has always been that, where an objection is against one or more grounds of appeal, then the objector need not file a “preliminary objection”, but a motion, notifying the Appellant of the Respondent’s intention to contest the competence of those grounds of appeal or issue(s). Of course, such objection can be raised and argued in the Respondent’s brief, without the need to file a separate process to that effect.
See also Onuegbu & Ors Vs Gov. Imo State & Ors (2015) LPELR – 25968 CA:
We have also held several times, relying on the Apex Court’s decisions, that a preliminary objection, pursuant to Order 10 Rule 1 of this Court’s Rules, 2011, is not the option, where a party is merely objecting to the competence of a ground(s) of appeal or issue distilled therefrom. A preliminary objection can only apply, where there is objection to the competence of the Appeal as a whole, like where notice of appeal is defective, or is not there and/or where the Records of Appeal is challenged, or all the grounds are defective. See the case of Alaribe Vs Okwuonu (2015) LPELR – 24297 CA, where it was held:- “I think, it is necessary to state, again, that there is a difference between raising a preliminary objection against an appeal, under Order 10 Rule 1 of the Court of Appeal Rules, 2011, and raising an objection against a ground(s) of appeal, for being defective. Whereas, in the former, Notice of Preliminary objection ought to be filed, separately, at least 3 clear days to the hearing of the appeal, to give the opponent due notice, before arguing it, either in the Respondent’s brief or separately, in the latter situation, the Respondent only needs to file a motion to highlight the defects in the ground(s), and the same can be properly raised in the Respondent’s brief and argued therein. See the case of Innocent Okereke & Anor Vs Innocent Adiele CA/PH.421/2008, a recent decision of this Court, delivered on 20/11/14, where we said: “The position of this Court, as per the authorities of the Apex Court, has always been that, where an objection is against one or more grounds of appeal, then the objector need not file a “preliminary objection”, but a motion, notifying the Appellant of the Respondent’s intention to contest the competence of those grounds of appeal or issue(s). Of course, such objection can be raised and argued in the Respondent’s brief, without the need to file a separate process to that effect. See the case of General Electric Co. Vs Harry Akande (2011)4 NSCQR 611… See also Adejumo Vs Olawaiye (2014)12 NWLR (Pt 1421) 252 at 265) where the Supreme Court said; “A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal… Where a preliminary objection would not be the appropriate process to object or show to the Court defects in the processes filed before it, a motion on notice filed complaining about the grounds or defect would suffice…”

I strike out the said so-called, preliminary objection, for incompetence.

I should also say that Appellant’s grounds of appeal and issues for determination of the appeal are rather a repetition of one and the same complaint, in different ways, amounting to proliferation of issues, as all of them appear to contest the competence of the trial Court to entertain the suit, where the respondent (Plaintiff) was said not to have been a party to the contract for the supply of the electrical materials/goods.

I think the relevant issue for the determination of the appeal is as stated by the Respondent (and modified by me), as follows:
“Whether the learned trial judge was right in entering judgment in favour of the Respondent, in the circumstances of the case that Respondent was not a party to the supply contract to Appellant?”

Appellant’s Counsel, Chike Onyeacho, Esq., had argued that the pleading and evidence showed that the Respondent was only a director of El-Liman Investment Nig. Ltd, a limited liability company, dealing in electronics appliances and general goods; that that company had supply contract with Appellant to the tune of the amount claimed by the Respondent – ₦1,080,000.00; that the documents evidencing the transaction were issued by the company, El-Liman Investment Nig. Ltd, to the Appellant and nothing was done with the Respondent, as a person, to warrant the taking out of the suit in his personal name; thus, he said there was no privity of contract between the respondent and the Appellant. He argued that proper parties were not before the Court in the Suit, as the respondent lacked the locus standi to initiate the action, and the trial Court therefore had no jurisdiction to hear the case. He relied on the case of Bakare Vs Ajose-Adeogun (2014) 6 NWLR (Pt 1403) 320 at 359. He further argued that, as artificial person, El-Liman Investment Nig. Ltd had a separate existence, different from the Respondent. He relied on K.S.O. & Allied Prod. Ltd Vs KOFA & Trad. Vo. Ltd (1996) 3 NWLR (Pt. 435) 244, Kate Enterprises Ltd Vs Daewoo (1985) 2 NWLR (Pt 5) 116; Yesufu Vs Kupper International N.V. (1996) 5 NWLR (Pt 446) 17 and on Section 7 (2) of CAMA (Company and Allied Matters Act).

Counsel further said that it was for the company El-Liman Investment Nig. Ltd to bring the action, or an authorized person by the company, that in this case, there was nothing to suggest that Respondent had the authority of the company to take the action, as a derivative action, as all the documents showed that the Respondent brought the suit in his personal name and capacity. He relied on the case of Georgewill Vs Ekine (1998) 8 NWLR (Pt 562) 454 at 470 to say that:
“A director or shareholder of a company cannot sue in his name in respect of a company’s property. In the instant case, the respondent lacked the locus standi to prosecute a suit at the High Court in respect of the property in dispute as if she were Sotonye Nigeria Limited.”

Counsel argued that, though the Exhibit B (postdated cheques) were issued in the name of Respondent (as a person), that did not make him the owner of the property, since the money was to satisfy the goods supplied by the company, as per the Exhibit A.

He urged us to resolve the issue for Appellant and to allow the appeal.

Responding, Segun Olabode, Esq., who settled the brief for Respondent, submitted that Appellant issued two postdated cheuqes to Respondent to cover the sum of ₦1,080,000 claimed in the suit (Page 21 of the record); that having issued the two cheques in the personal name of respondent, not in the name of El-Liman Investment Nig. Ltd., the Respondent was entitled to sue to recover the money, being the holder of the said post-dated cheques, and as the said cheques were dishonoured by the bank and returned to Respondent. Counsel said that Appellant had admitted issuing the cheques to the Respondent, and the fact that the cheques were dishonoured and returned to Respondent, unpaid. He said that the trial Court was right to enter judgment for Respondent.

RESOLUTION OF THE ISSUE
I think this is a most unnecessary appeal, and one founded on dubious legal sophistry, to deny a debt owed and duly admitted by Appellant, who is now seeking to escape payment by resort to technicalities of law, dishonestly.

Counsel, in my view, has only succeeded to blackmail the Appellant, and his (Counsel’s) practice of the law, by bringing this frivolous appeal, after he had raised no objection to the suit at the lower Court, and had entered no defence or opposition to the application for summary judgment, heard on 18/5/2015.

On page 1 of Appellant’s brief, Appellant submitted as follows:
“On the 7th April, 2015, the Plaintiff/Respondent caused a writ of summons to be issued against the Defendant/Appellant for the sum of ₦1,080,000.00 being the amount for electrical/good supplied to the defendant/appellant by one Messrs. El-Liman Investment Nig. Ltd… Equally the Plaintiff/Respondent filed at the same time on the said 7th April, 2015, an application or motion on notice, supported by eleven paragraphed affidavit, with two exhibits as well as written address, under Order 11 Kano State High Court (Civil Procedure) Rules 2014. The matter was slated for 18th May, 2015 for hearing under the summary judgment procedure. The defendant/Appellant was served but the same, did not consider it prudent to file any document in challenge of the same.” (Underline mine)

If Appellant’s Counsel did not consider it prudent to challenge the claims of Respondent at the trial, in the face of all the documents and evidence that Appellant had issued two post-dated cheques (Exhibit B) to the Respondent, in his personal name, to pay for the goods it (Appellant) collected from Respondent’s company, how come the same Appellant’s Counsel turned round to file this provocative Appeal, alleging incapacity of Respondent to sue, to recover the money! Was the Appellant’s Counsel an advocate for El-Liman Investment Nig. Ltd, to advance the interest of the company against its director (Respondent)? Of course, he was not and could not have been!

The law is, however, trite that a limited liability company is a separate personality, different from its directors and promoters, and so should sue or be sued in its own name as regards its property or interest. I recently considered in depth and determined such issue in the case of Sadiq & Ors Vs Yunusa (2022) LPELR-56568 CA, where we held:
“…This calls to question the capacity of the Respondent to institute the action, having not been done jointly with the said company, Sani Brothers Ltd. And if Respondent, in fact, had the authority of the company to initiate the action, failure to produce such authority, was fatal as it would appear the Respondent was a busybody over a claim, which only the company had a duty to originate! The law is trite that a limited liability company is completely a different legal entity, separate from the persons who formed and/or promoted or run it. See the case of Abacha & Anor Vs A.G. Fed. & Ors (2013) LPELR – 21479 CA, where it was held: “The companies listed for investigation are severally a legal entity each with its individual personality. In the instant case, though the companies listed for investigation may be owned by the Abacha family, the companies are at law different persons altogether from the subscribers to the memorandum of their association. The companies are not in law the agents of the subscribers or trustees for them. The subscribers as members are not liable in any shape or form, except to the extent and in the manner provided by the Companies and Allied Matters Act, 1990. See Also Motel Kaduna Ltd v. Deyemo (2006) 7 NWLR (pt. 978) page 93. In Ashibuogwu v. Attorney – General (Bendel) (1988), NWLR (pt.69) page 138. It was held that a government owned limited liability company posses a legal personality of its own. It can sue and be sued by its name. Its shareholders, even if the major or sole shareholder is the Federal Government, it cannot be sued for debt incurred by the Company. See Macaura v. Northern Assurance Co. Ltd. (1975) AC 619. A. L. Underwood Ltd v. Bank of Liverpool and Motors Ltd (1924) 1 KB 775. An incorporated company is a creation of law, clothed with independent legal personality from the moment of its incorporation. It has a distinct and separate personality from those that laboured to give birth to it. See Salomon v. Salomon & Co. Ltd (1897) AC 22 at 51, Trenco Nigeria Ltd v. African Real Estate Ltd (1978) 1 LRN 146 at 153, Marina Nominees Ltd v. Federal Board of Inland Revenue (1986) 2 NWLR (pt.20) page 48 at 61. A company registered is a separate and distinct entity from any one of its shareholders, no matter how many shares he may hold. See Section 37 of the Company and Allied Matters Act 1990, CBDI v. COBEC (Nig) Ltd (2004) 13 NWLR (pt. 890) page 376, K. S. O and Allied Products Ltd v. Kafa Trading Co. Ltd (1996) 3 NWLR (pt.436) Page 244.” Per ABOKI, JCA. See also New Resources Int’l Ltd and Anor Vs Oranusi (2010) LPELR – 4592 (CA), where my Lord, Okoro JCA (as he then was) stated: “Since the decision of the House of Lords in 1897 in the much celebrated case of Salomon v. Salomon and Company Ltd (1897) AC 22, it established firmly the concept of corporate personality which means that once a company is incorporated under the relevant laws, it becomes a separate person from the individuals who are its members. It has capacity to enjoy legal rights and is subjected to legal duties which do not coincide with that of its members. Such a company is said to have legal personality and is always referred to as an “artificial person”. This being the case, it can sue and be sued in its own name.” Of course, the above case is different, completely, from the situation in this case at hand, which was clearly not instituted by a company, and did not require a company (El-Liman Investment Nig. Ltd) to originate, as it was a simple case of debt, accruing to Respondent, as per the Exhibit B (the postdated 2 cheques) issued by Appellant to the Respondent, in his personal name, which cheques were dishonoured by the bank and returned to Respondent.

At the time of issuing the two cheques, Appellant had recognized the Respondent as its agent, to collect and pay the money to the beneficiary of the money (to collect the money and settle the debt). And the Company, El-Liman Investment Nig. Ltd had the right to hold the Respondent to account for the value of the cheques!

The Respondent therefore had every right and duty to take out the action (even without being instructed by the company), to recover the debt/amount from the Appellant, as it was his responsibility to cash the cheques and/or account for the value of the cheques, issued to him, for the company.

In his affidavit in support of the application for the summary judgment, the Respondent had averred:

2) … I am a director of El-Liman Investment Nig. Ltd.
3) Sometimes in August, 2013, the Defendant approached me through Mrs. Azika for the supply of electronic goods worth One Million Eighty Thousand Naira on credit in respect of which I issued a cash/credit invoice of El-Liman Investment Nig. Ltd with No. 8169 dated 07-08-2013 to the defendant. The said invoice is attached and marked as Exhibit A.
4) The defendant informed me that she will pay the said amount in a week’s time, which I obliged her.
5) However, after a week when I approached the defendant for the payment of the debt, instead of paying the money, she issued two postdated cheques dated 27/11/2013 and 16/12/2013 respectively in my name. the said cheques are attached and marked as Exhibit B.
6) On the 26/11/2013… when the cheques was presented, same was returned unpaid and I communicated this development to the defendant.
7) When it was due for presentation of the 2nd cheque, I informed the defendant who prevailed on me not to present it and that I should hold on to those cheques that she will pay the money… None of the above averments was denied by Appellant. And despite the obvious criminal implication of Appellant’s acts (fraudulent tendencies of issuing the dud cheques), Appellant still had the audacity to resort to the games of seeking to use technicality of law to deny the Respondent payment of the debt, which clearly accrued to the Respondent, in his personal name/capacity.

Such conduct of Appellant is reprehensible, and, I think, the Counsel who advised the Appellant to do this, should be ashamed!

I see no merit in this appeal and so dismiss it with cost, assessed at Two Hundred Thousand Naira (₦200,000.00) to Respondent, payable by Appellant. The judgment of the lower Court is affirmed.

ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother ITA G. MBABA, JCA, and I am in complete agreement with the reasoning and conclusion reached therein that this appeal is unmeritorious and be dismissed. I too dismiss the appeal and abide by all the consequential orders as contained in the lead judgment.

USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Ita G. Mbaba, JCA. His Lordship has considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide by the conclusion and the final orders made therein.