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OSTANKINO SHIPPING CO. LTD v. THE OWNERS OF THE MT BATA 1 & ORS (2021)

OSTANKINO SHIPPING CO. LTD v. THE OWNERS OF THE MT BATA 1 & ORS

(2021)LCN/5083(SC)

In The Supreme Court

On Friday, April 16, 2021

SC.307/2011

Before Our Lordships:

Musa Dattijo Muhammad Justice of the Supreme Court of Nigeria

Chima CentusNweze Justice of the Supreme Court of Nigeria

Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria

Abdu Aboki Justice of the Supreme Court of Nigeria

Tijjani Abubakar Justice of the Supreme Court of Nigeria

Between

OSTANKINO SHIPPING COMPANY LIMITED (OW NERS OF THE MT “OSTANKINO”) APPELANT(S)

And

1. THE OWNERS OF THE MT ”BATA 1” 2. THE MASTER OF THE MT ”BATA 1” 3. THE MANAGERS/OPERATORS OF THE ”MT BATA 1” 4. THE MT BATA 1 RESPONDENT(S)

 

RATIO:

COMPETENCE OF PARTIES TO SUE IN AN ACTION

It is not being contested by the appellant that for an action to be properly constituted so as to vest jurisdiction in the Court to adjudicate on it there must be a competent plaintiff and a competent defendant. As a general rule only a natural person, a human being, or an artificial person, a body corporate, which the appellant avers to be in paragraph one of its amended statement of claim, are competent to sue or be sued. The law further confers on some non-legal entities the personality to sue or defend an action. Thus, where either the plaintiff or the defendant is not a legal person, the action is liable to be struck out. See ATAGUBA & CO. V. GURA NIGERIA LIMITED (2005) LPELR-584 (SC), MAERSK LUNE & ANOR V. ADDIDE INVESTMENTS LTD & ANOR (2002) LPELR – 1811 (SC). PER MUSA DATTIJO MUHAMMAD, J.S.C.

TO ESTABLISH CORPORATE PERSONALITY                                                

It is also trite that the juristic personality of a body corporate is evidenced only by tendering the certificate of incorporation of the company. See BANK OF BARODA V. IYALABANI COMPANY LTD (2002) LPELR – 743 (SC), AFOLABI & ORS V. WESTERN STEEL WORKS LTD & ORS (2012) LPELR-9340 (SC), REPTICO S. A. GENEVA V. AFRIBANK NIG PLC. PER MUSA DATTIJO MUHAMMAD, J.S.C.

MUSA DATTIJO MUHAMMAD, J.S.C. (Delivering the Leading Judgment): At the trial Federal High Court the appellant, as plaintiff in suit number FHC/L/CS/922/2002, by its amended statement of claim filed on the 8th of October 2003, claimed against the defendants, the respondents herein, jointly and severally for the damage to its vessel “M.P. OSTANKINO” and the attendant loss and expenses by reason of the collIsion with the respondents’ ship M.T, “BATA I” which occurred off-shore Lagos on the 3rd and 4th of August 2002 as a result of the negligence of the defendants, their servants or agents.

In paragraph 1 of its amended statement of claim, the appellant avers the status that entitles it to the grant of the claim by the trial Court thus:-
“1. The plaintiffs at all times material to this action are the owners of the M.T. “OSTANKINO” and are a LIMITED LIABILITY company registered in Cyprus”. (Underlining mine for emphasis).

In responding to the foregoing paragraph of the appellant’s amended statement of claim the respondents, in paragraphs 1 and 2 of their amended-statement of defence/counter-claim filed on the 17th December 2003, aver thus:-
“1. SAVE AND EXCEPT as hereinafter specifically admitted the Defendants deny each and every allegation of fact contained in the plaintiffs statement of claim as if each were herein set out and traversed seriatim.
2. The Defendants are not in a position to either accept or deny paragraph 1 of the statement of claim, the Plaintiff is therefore under a duty to the proof of same strictly.” (Underlining mine for emphasis).

Appellant’s amended reply to respondents’ amended statement of defence/counter-claim dated and filed on 7th October 2007 is silent on the challenge contained specifically in paragraph 2 of the respondents’ amended statement of defence/counter-claim on its legal personality.
]The appellant called a single witness to prove its case through whom eleven Exhibits, DI — DII, none of which is its certificate of incorporation, were tendered.

At the end of trial, Omolojobi J upheld respondents contention, proffered in final addresses of counsel, challenging the juristic personality of the appellant and struck out the suit.

Following the dismissal of his appeal at the Court of Appeal, the appellant has appealed to this Court against the concurrent findings of the two lower Courts vide his notice filed on the 17th day of January 2011 containing three grounds.

Parties have filed and exchanged briefs which at the hearing of the appeal, were adopted and relied upon as their respective arguments.

The two issues distilled at paragraph 5.01 of the appellant’s brief of argument as arising for and which will inform the determination of the appeal read:-
(1) Whether the Court of Appeal was right in holding that without the production of the certificate of incorporation of the Appellant that the appellant had no legal capacity or locus standi to institute the action against the respondents, when the legal capacity or locus standi of the Appellant to institute the action was not a fact in issue between the parties.
(2) Whether the Court of Appeal was right in law in refusing and/or failing to consider the other two issues (1 & 3) submitted for determination by the Appellant which arose from the grounds raised in the Appellant’s Notice dated the 9th day of March 2007 and which said issues were argued in the Appellant’s Brief of Argument dated the 6th day of March 2009.

On the 1st issue, learned appellants counsel submits that the lower Court is wrong in its finding that appellant’s failure to produce its certificate of incorporation at the trial Court has robbed it the legal capacity to institute the action ab initio. At no time, it is argued, did parties join issue in their pleadings on the legal capacity of the appellant to institute the action. The lower Court, submits learned appellant’s counsel, wrongly applied the principle enunciated in NDUKA V. EZENWAKU (2001) 6 NWLR (PT 709) 517 and HOUSE OF REPRESENTATIVES V. SPDC (2010) 11 NWLR (PT 1205) 213 at 251 since the legal capacity of the appellant had not been put in issue by the parties. Were it otherwise, the respondents, it is further submitted; would not have counter-claimed against the very appellant they contend lacks the legal capacity to defend the counter-claim. Relying on CALABAR CENTRAL COOPERATIVE THRIFT & CREDIT SOCIETY LTD & 2 ORS V. EKPO (2008) 6 NWLR (PT 1083) 362 at 392, HOUSE OF REPRESENTATIVES V. SPDC (supra) and G & T INVESTMENT LTD V. WITT & BUSH LTD (2011) 8 NWLR (PT 1250) 500 at 540,learned appellant’s counsel contends that in the absence of a proper traverse by the respondents to paragraph I of appellant’s amended statement of claim, the issue of appellant’s juristic personality cannot be said to have been put in issue purely on the basis of respondents counsel’s belated submission in their final address at the trial Court. Further relying on ASAFA FOODS FACTORY V. ALRAINE (NIG) LTD (2002) 12 NWLR (PT 781) 353, learned counsel concludes that respondents general traverse being the only basis of their challenge to the competence of appellant’s suit is unavailing. He urges that it be so-held and the issue resolved against the respondents.

On their first issue, which is similar to appellant’s first, learned respondents’ counsel submits that appellant’s silence in its amended reply, given paragraphs 1 and 2 of the respondents response to paragraph 1 of the appellant’s amended statement of claim, is fatal. The respondents in the two paragraphs of their amended statement of defence and counter-claim, it is asserted, unequivocally put the legal personality of the appellant in issue. While by the first paragraph in their amended statementof defence/counter-claim the respondents may be said to have made a general traverse to the averment in paragraph 1 of the appellant’s statement of claim, by the further averment in paragraph 2 of their amended statement of defence/counter-claim, it is contended, the traverse ceases to be a general one the latter paragraph having made it very specific whether or not a traverse is general or specific, it is argued, depends on the totality of a party’s pleadings. It is never the practice to isolate a particular paragraph in a party’s pleading and adjudge, by its token alone, that, the party’s pleading has been generally rather than specifically traversed.

​Paragraph 1 in the respondents’ amended statement of defence/counter-claim must be viewed in the light of the other paragraphs in their pleading in correctly deciphering to be made as the issue/issues the parties had gone to trial upon. In any event, it is further contended, the appellant who claims to be an unnatural legal person is required by law to establish that fact and having failed to, both Courts are right to have struck out the claim. The two Courts, learned respondents’ counsel submits, rightly relied inter-alia on NDUKA V. EZENWAKU (supra), HOUSE OF REPRESENTATIVES V. SPDC (supra) and MAGBAGBEOLA V. SANNI (supra) in affirming the trial Court’s finding that the appellant having failed to establish its legal personality by proffering the certificate of its incorporation, lacks the locus standi to sustain its claim against the respondents. Further referring to ASAFA FOODS FACTORY V. ALRAINE (supra), OSOLU V. OSOLU (2003) 11 NWLR (PT.832) 609 and REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH ILESHA AREA V. ATTORNEY GENERAL OF MID-WESTERN NIGERIA (1972) 4 SC 150 at 158 at 159, learned respondents’ counsel urges that the issue be resolved against the appellant.

Now, in striking out appellant’s suit, the trial Court at page 204 of the record held as follow:-
“To my mind, the aforestated averment contained in paragraph 2 of the statement of defence is enough to put the plaintiff’s counsel on notice that the Corporate existence of the Plaintiff which he described as a limited liability company registered in Cyprus has been called to question by the defendant’s counsel. He could not have averred more than he did because, the fact that thePlaintiff is a limited liability company is solely within the knowledge of the Plaintiff and probably, its counsel as far as this action is concerned. Therefore, the burden of proving same rests on them.”

The trial judge concluded at page 206 of the record of appeal thus:-
“In the instant case, when the Plaintiff is described as a limited liability company and there is nothing before this Court to support that averment in the Plaintiff’s Statement of Claim, the Plaintiff cannot be regarded as a juristic person with legal personality who can sue or be sued in a Court of competent jurisdiction. And such, the Plaintiff is not competent to institute this action. I so hold.”

In dismissing appellant’s appeal and affirming the trial Court’s foregoing findings, the lower Court held firstly as follows:-
“The above pleading showed that Respondents joined issue with the Appellant on its legal capacity to maintain an action. The respondents denied the fact that the appellant is a limited liability company. The burden therefore shifts on the appellant to prove it is a limited liability so as to show its legal capacity to sue………”
The Court further surmised as follows:-
“In the instant case appellant is a foreign company. Despite adding the word limited to Ostankino Shipping Co. it would not satisfy the requirement of evidence of incorporation.
In absence of evidence of incorporation l hold that appellant is incompetent to institute any action at the lower Court. It is only proper juristic person who can sue or be sued. Defect in competence is very fatal to a suit.” (Underlining mine for emphasis).

The Court concluded at page 308 of the record as follows:
“In view of the fact that the Court was not properly clothed with jurisdiction to entertain the action abinitio on ground of lack of locus standi, I will invoke S. 15 of the Court of Appeal, Act and order that the suit No. FAC/CS/922/2002 filed by the appellant before the lower Court be and is hereby struck out.” (Underlining mine for emphasis).

This appeal questions the correctness of the foregoing concurrent findings of the two Courts below striking out the suit following the appellant/plaintiff’s failure to prove its right to sue in the first place. It has not been the practice of this Court to interfere with such findings except where the appellant succeeds in establishing that they neither evolved from the evidence on record nor consequent upon correct application of principles. See SERBER V. KARIKARI (1939) 5 WACA 34 and OKAFOR V. ABUMOFUANI (20160 LPELR – 40299 (SC).

It is not being contested by the appellant that for an action to be properly constituted so as to vest jurisdiction in the Court to adjudicate on it there must be a competent plaintiff and a competent defendant. As a general rule only a natural person, a human being, or an artificial person, a body corporate, which the appellant avers to be in paragraph one of its amended statement of claim, are competent to sue or be sued. The law further confers on some non-legal entities the personality to sue or defend an action. Thus, where either the plaintiff or the defendant is not a legal person, the action is liable to be struck out. See ATAGUBA & CO. V. GURA NIGERIA LIMITED (2005) LPELR-584 (SC), MAERSK LUNE & ANOR V. ADDIDE INVESTMENTS LTD & ANOR (2002) LPELR – 1811 (SC). In THE ADMIN & EXEC OF ESTATE OF ABACHA V. EKE-SPIFF & ORS (2009) LPELR – 3152(SC) this Court restated the principle thus:-
“The law is also trite that a non-existing person, natural or legal personality, cannot institute an action. Nor will an action be allowed to be maintained against a Defendant who as sued, is not a legal person.”

It is also trite that the juristic personality of a body corporate is evidenced only by tendering the certificate of incorporation of the company. See BANK OF BARODA V. IYALABANI COMPANY LTD (2002) LPELR – 743 (SC), AFOLABI & ORS V. WESTERN STEEL WORKS LTD & ORS (2012) LPELR-9340 (SC), REPTICO S. A. GENEVA V. AFRIBANK NIG PLC. In J.K. RANDLE V. KWARA BREWERIES LTD (1986) 456 SC 1. Uwais JSC (as he then was later CJN) in his concurring contribution appositely stated thus:-
“The appellant sued the respondent as a company incorporated under the Company Act 1968. He failed to prove the incorporation by the production of the certificate of incorporation. As the averment in the statement of claim that the defendant was so incorporated was categorically denied by the respondent in its statement of defence, the failure to prove the incorporation was fatal to the appellant’s case.” (Underlining mine for emphasis).

In the case at hand the appellant in paragraph one of its amended statement of claim avers being a “LIMITED LIABILITY Company in Cyprus”. The respondents denied the averment and further assert in their amended statement of defence/counter-claim that being “not in position to either accept or deny paragraph 1 of the statement of claim, the plaintiff is therefore under duty to be proof of same strictly”.

It is strenuously argued by learned appellant’s counsel that appellant’s incorporation not having been categorically denied by the respondents its juristic personality has not been put in issue by parties to warrant its proof. Learned respondents’ counsel contends to the contrary.

I entirely agree with learned counsel to the respondents that learned appellant counsel’s insistence that the averment in paragraph two of the respondents amended statement of a defence/counter-claim is a general denial stems from his reading of the paragraph in isolation rather than by reference to the other averments in the party’s pleading. It is an age old rule of practice that to determine a party’s case resort must be made tothe entire averments in-the party’s pleadings. Considering a few paragraphs of the pleading in isolation militates against a complete flow of the party’s story. See AGI V. P.D.P. & ORS (2016) LPELR 42578 (SC) and ATTORNEY GENERAL OF ANAMBRA STATE V. C. N. ONUSELOGU ENTERPRISES (1987) LPELR – 614 (SC).

A comprehensive examination of the respondents’ amended statement of defence/counter-claim reveals very clearly that parties herein have joined issue on the juristic personality of the appellant thereby making proof of same by the appellant necessary.

It is reasonably settled that a defendants resort to a general traverse in the statement of defence in a manner that casts the burden of proving a denied averment on the plaintiff is a convenient and permissible procedure in defining the case on the defendants which parties are to proceed to trial. Doing so constitute specific traverse of the facts averred to by the plaintiff. By asking the appellant to prove the fact of its incorporation, the respondents who are in no position of knowing the fact of appellants incorporation have effectively traversed appellants assertion of being a corporate body. See UMESIE V. ONUAGULUCHI (1995)LPELR – 3368 (SC), MANDILAS & KARABERIS LTD V. LAMIDI APENA (1969) LPELR 25559 (SC), AKINTOLA & ANOR V. SOLANO (1986) LPELR – 360 (SC) and DAIRO & ORS V. REGISTERED TRUSTEES OF THE ANGLICAN DIOCESE (2017) LPELR -42573 (SC)

Learned appellant’s counsel seems to suggest that having failed to join issue in their amended statement defence/counter-claim with the appellant on the latter’s juristic personality, the respondents have completely compromised their right to challenge the trial Court’s jurisdiction. Learned counsel appears oblivious of the dichotomy in the Court’s procedural and substantive jurisdiction. Simply put, the one is circumscribed by Court rules while the other is as statutorily delineated. While it is settled that the right to challenge a Court’s procedural jurisdiction may be waived by a party, it is trite that neither the Court nor the parties before it can confer on the Court a jurisdiction it statutorily lacks. See DR. MUSA NAGOGO V. C.P.C. & ORS (2012) LPELR – 15521 (SC), AG KWARA STATE V. ADEYEMO & ORS (2016) LPELR – 41147 (SC) and IKECHUKWU V. F.R.N. & ORS (2015) LPELR – 2445 (SC). In MOBIL PRODUCING (NIG) UNLIMITED V. LASEPA & ORS(2002) LPELR -1887(SC) this Court in dwelling on the two types of the Court’s jurisdiction inter-alia enthused as follows:-
“Notwithstanding that, sometimes, the distinction between substance and procedure is blurred, it is generally accepted that matters (including facts) which define the rights and obligations of the parties in controversy are matters of substance defined by substantive law, whereas matters which are mere vehicles which assist the Court or tribunal in going into matters in controversy or litigated before it are matters of procedure regulated by procedural Law. Facts which constitute a cause of action are matters of substance and should be pleaded, whereas facts which relate to how a party is to invoke the jurisdiction of the Court a remedy pursuant to his cause of action is a matter of procedure outside the realm of pleadings………..
‘generally speaking, it may be said that substantive rules give or define the right which it is sought to enforce and procedural rules govern the mode or machinery by which the right is enforced'”
See also HUSSAIN ISA ZAKIRAI V. SALISU DAN’AZUMI MUHAMMAD & ORS (2017) LPELR – 42349 (SC).
In applying the foregoing principles to the facts of the instant case, it is evident that beyond respondents’ objection to the trial Court’s jurisdiction as raised in parties’ pleadings, which is procedural, the further objection raised in learned respondents counsel’s address at the close of the case pertains the Court’s substantive jurisdiction as statutorily circumscribed. By Section 6 (1) and (6)(b), the trial Court is only competent to adjudicate between juristic persons. In the instant case, appellant’s juristic personality as raised challenges both the Court’s procedural and substantive jurisdictions. It is therefore manifestly unwise for learned appellant’s counsel to insist that the overriding issue can be discountenanced by the Court as the challenge to its jurisdiction only rests on non joinder of issue.

Furthermore, by Sections 131 – 137 of the Evidence Act, the appellant must bear the burden of that which it asserts. See
PATRICK ZIIDEEH V. RIVERS STATE CIVIL SERVICE COMMISSION (2007) LPELR – 3544 (SC) and CHIEF EYO EDEM NSEFIK & ORS V. ROSEMARY MUNA & ORS (2013) LPELR – 21862 (SC). Thus whether respondents objection to the trial Court’s competence is on account of either the state of pleadings of parties, the burden of proving those facts it asserts or, still, pursuant to Section 6(1) and (6) (b) of the 1999 Constitution (as amended) which provides for parties to any dispute the trial Court is competent to enquire into and determine, appellant’s failure to tender its certificate of incorporation in proof of its juristic personality, as rightly held by both Courts below, is fatal.

Appellant’s first issue is resultantly resolved in favour of the respondents.

It is academic to consider appellant’s second issue for the lower Court’s non consideration of appellant’s issue would only have become relevant if the trial Court which decision was to review, had the jurisdiction to determine appellant’s suit in the first place. It did not. The lower Court also lacked the jurisdiction to consider and determine any issue arising from the trial Court’s judgment arrived at without jurisdiction. I so hold.

​As a whole, the concurrent judgments of the two Courts below are hereby further affirmed.
Parties are to bear their respective costs.
CHIMA CENTUS NWEZE, J.S.C.: My Lord, Musa Dattijo Muhammad, JSC, obliged me with the draft of the leading judgement just delivered. I agree with His Lordship that this appeal is devoid of merit. It, therefore, deserves to be dismissed.

It is, indeed, surprising how counsel for the appellant underrated the formidable submission of the respondents’ counsel on the question of the legal capacity of his client. I had always, believed that, following the outcome of a long line of cases, our Courts should not no longer be burdened with this question.

Such cases include Olu of Warri v Chief Sam Warri Esi (1958) 3 FSC 94; Agbonmagbe Bank Ltd v. G. B. Ollivant Ltd and Anor (1961) ANLR 125; Ataguba and Co v. Gura Nigeria Ltd(2005) LPELR – 584 SC); Maersk Line and Anor v. Addide Investments Ltd and Anor (2002) LPELR – 1811 (SC); The Administrator and Executor of the Estate of Abacha v. Eke – Spiff and Ors (2009) LPELR – 3152 (SC) and so on.

True, indeed, I, always, entertained the view that every lawyer should know that our law attributes juristic personality, that is, the capacity to maintain and defend actions in Court to natural persons and artificial persons or institutions, Reptico S. A. Geneva v. AfriBank Nig Plc (2013) LPELR – 20662 (SC); Attorney General of Federation v. All Nigeria Peoples Party and Ors [2003] 12 SCM 1, 12; [2003] 18 NWLR (pt. 851) 182; [2003] 12 SC (pt. 11) 146. They are, therefore, known to law as legal persons, Alhaji Afia Trading and Transport Company Ltd v Veritas Insurance Company Ltd 4 NWLR (pt. 38) 802.
The consequence of the above formulation is that only natural persons or a body of persons whom statutes have, either expressly or by implication, clothed with the garment of legal personality can prosecute or defend law suits by that name, Knight and Searle v. Dove (1964) 2 All ER 307; Admin Estate of Gen. SanniAbachav Eke-Spiff and Ors (2009) 3 SCM 1; [2009] NWLR (pt. 1139) 92; Bank of Baroda v. lyaiabani Coy Ltd [2002] 12 SCM 7; J. K. Randle v. Kwara Breweries Ltd [1986] 6 SC 1.

​From a conspectus of a host of Supreme Court decisions, we are emboldened in our view that the only permissible mode of proving the legal personality of Incorporated Trustees under Part C of CAMA, or Registered Trustees under the old Land (Perpetual Succession) Act, when the adversary has not admitted that status to the plaintiffs, is by the production in evidence of the certificate of incorporation issued by the Corporate Affairs Commission [CAC], Reptico S. A. Geneva v. AfriBank Nig Plc (supra); ACB Nig Plc and Anor v. Emostrade Ltd {2002) LPELR – 207 (SC).
Thus, where a group of persons claim to have been registered as Incorporated Trustees under Part C of CAMA, they have to produce their certificate of incorporation, as nothing else would suffice, ACB Nig PLC v. Emostrade Ltd (supra). In effect, for Incorporated Trustees to establish their juristic personality, except if it is admitted by the opposing party, they must tender their certificate of incorporation under Part C of CAMA. It is, thus, not enough to describe themselves as Incorporated Trustees, Bank of Baroda v. lyalabani Company Limited, [2002] 12 SCM 7.
​Indeed, there is even a binding authority which favours the view that the status of Incorporated or Registered Trustees can only be established as a matter of law by the production in evidence of the certificate of incorporation under Part C of CAMA, whatever may be the admission of the defendants, Registered Trustees of Apostolic Church v. AG Mid-West (supra); Geneva v. AfriBank (supra); J. K. Randle v. Kwara Breweries Ltd [1986] 6 SC 1.
The provisions of Section 2 Subsections (1) and (3) of the Land (Perpetual Succession) Act [now defunct], in parimateria with Section 673 (1); (2) and Section 679 (1) of the Companies and Allied Matters Act, 1990 [CAMA, for short], fell for construction in Registered Trustees, Apostolic Church v. Attorney General, Mid-Western State and Ors [1972] ANLR (Reprint) 359. Sowemimo JSC (as he then was), reading the judgement of the apex Court, held that:
Although evidence was led as to named persons being made trustees, the certificate of incorporation was never produced. It is therefore clear that unless the plaintiffs could comply with Section 6 of the Act [see, now Section 679 (3) of CAMA], they have no power to sue or be liable to being sued…
In view of the above provisions of the Act, the plaintiff having failed to prove their incorporation by the production of their certificate of incorporation, have no power to sue…In the circumstances, the plaintiffs/appellants’ claim must fail…
[Italics for emphasis]

​In all, the burden of proving their status as Incorporated Trustees, therefore, lies on the persons who made such positive assertion about their incorporated status, Section 135 of the Evidence Act [then applicable to the proceedings]; Elias v Omo Bare [1982] 5 SC 2; Elias v. Disu (1962) 1 All NLR 214; Woluchem v. Gudi [1981] 5 SC 291; Agala and Ors v. Egwere and Ors [2010] 5 SCM 22, 37.

It is for these, and the more elaborate, reasons in the leading judgement that I, too, shall enter an order dismissing this appeal. I abide by the consequential orders in the said leading judgement.
Appeal dismissed.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have had the privilege of reading before now, a draft of the erudite judgment of the majority of the full Court just delivered by my learned Brother HON. JUSTICE MUSA DATTIJO MUHAMMAD JSC. I agree with the reasoning and conclusions contained therein. This appeal is based on the concurrent findings of facts by the High Court and the Court of Appeal that the Appellant is not a juristic person and therefore lacks the capacity to institute this suit.

The issues raised by both sides to this appeal are settled, and I am persuaded after reading the record and the Briefs of Counsel that these issues distilled are clear and sufficient to be used to determine the Appeal, they are: –
ISSUE 1
Whether the Court of Appeal was right in holding that the Appellant had no legal capacity or locus standi to institute the action against the Respondents.
ISSUE 2
Whether the Court of Appeal is bound to consider all issued in controversy before it before giving its Judgment.

OPINION
ISSUE 1
The crux of the first issue is whether the Appellant has legal capacity, that is, whether it has a juristic personality separate from its owners. A perusal of all pleadings filed from the origin of this suit would show that the Appellant was at all times material to this action was referred to as “The Owners of M. T. OSATANKINO” a limited liability company registered in Cyprus. The Appellant in paragraph 1 of its amended statement of claim stated:-
“The plaintiffs at all times material to this action are the owners of the “M. T OSTANKINO” and are a limited company registered in Cyprus”

The Respondents in their amended statement of defense responded thus:
“The defendants are not in a position to either acceptor deny Paragraph 1 of the statement of claim, the plaintiff is therefore under a duty to proof (sic) same strictly”

Therefore, the Respondents joined issue with the Appellant by the pleadings, thus, shifting the burden to the Appellant to prove that it is a limited liability company capable of being sued and to sue in its own name. The Appellant erroneously contended that the relevant issue was its claim against the Respondent and not its legal personality. The trial Court held that the onus had shifted to the Appellant to prove its corporate existence. The Companies and Allied Matters Act, 2019 in Section 78. (1) provide thus:
Subject to Sections 80 – 83 of this Act, every foreign company which before or after the commencement of this Act was incorporated outside Nigeria, and having the intention of carrying on business in Nigeria, shall take all steps necessary to obtain incorporation as a separate entity in Nigeria for that purpose, but until so incorporated, the foreign company shall not carry on business in Nigeria or exercise any of the powers of a registered company and shall not have a place of business or an address for service of documents or processes in Nigeria for any purpose other than the receipt of notices and other documents, as matters preliminary to incorporation under this Act.

Therefore, the ascertainment of the corporate identity of the Appellant is indeed relevant to the success of its claim.

In Nduka v. Ezenwaku (2001) 6 NWLR Pt. 709 Pg. 494 at Pg. 517 the Court of Appeal held that the only way to prove the existence of a company when such is challenged, is the production of the Certificate of Incorporation of the company. Similarly, Section 41(6) of The Companies and Allied Matters Act, 2019 reads: –
41(6) Certificate of incorporation shall be prima facie evidence that all the requirements of this Act in respect of registration and matters precedent and incidental to it have been complied with and that the association is a company authorized to be registered and duly registered under this Act.

The irrefutable position of the law is that upon incorporation, a company becomes a body corporate i.e. it acquires a separate legal personality with autonomous identity, it can sue and be sued in its own name, own and dispose of property and enter into contracts etc. See Marina Nominees v. F.B.I.R. (1986) 2 NWLR Pt. 20 Pg. 48; Afolabi v. Western Steel (2012) 7 SCNJ 48 at Pg.68. The age-long general rule of corporate legal personality was laid down in the locus classicus case of Salomon v. Salomon (1897) AC 22. See also The Registered Trustees of Master’s Vessel Ministries Nigeria Incorporated v. Rev. Francis Emenike & Ors (2017) LPELR-42836(CA).

A lawsuit is in essence, the determination of legal rights and obligations of the parties in any given situation. Therefore, only such natural and juristic persons in whom the rights and obligations can be vested are capable of being proper parties to the suit before the Courts of law. Following this general rule, where either of the parties is not a legal person capable of exercising legal rights and obligations under the law, the other party may raise these facts as a preliminary objection.
In other words, no action can be brought by or against any party other than a natural person or persons unless such party has been given by statute, expressly or impliedly or by common law, either a legal personality under the name by which it sues or is sued or a right to sue or be sued by that name. See EMCO & Partners Ltd & Ors v. Dorbeen (Nig) Ltd & Anor (2017) LPELR-43453(CA)

By the pleadings of the parties, it is glaring that the issue of the legal personality of the Appellant was an issue for determination between the parties as it goes to the foundation of the suit and the jurisdiction of the Court to determine same. The Appellant had enough time from when the litigation started up till the appeal to have settled this issue by substituting another party but it failed and refused to do so. Therefore, based on the pleadings of both parties and the evidence led at the trial as well as the concurrent findings of the lower Court, I hold that the Appellant had no legal capacity to institute the action against the Respondents thereby making the suit and any subsequent appeal incompetent.

ISSUE 2
On the second issue for determination, the Court of Appeal was wrong in its refusal to determine all the issues in controversy. The lower Court in its judgment dismissed the case of the Appellant in its entirety and held as follows at Pg. 242 of the Record of this appeal:
“…bearing the aforesaid in mind, I am to state that it is a condition precedent to the exercise of jurisdiction that a competent party is before the Court. In this instant case, where the Plaintiffs Statement of Claim, the Plaintiff cannot be regarded as a juristic person with legal personality who can sue or be sued in a Court of competent jurisdiction to institute this action and I so hold.
In conclusion therefore I found as follows: –
1. That the 4th defendant M.T Bata 1 was not negligent in the manner in which she was brought out of the side of the Plaintiffs vessel M. T Ostankino on the 3rd and 4th of August 2003
2. That the defendants are not liable for the various claims put by the Plaintiff
3. There is no evidence before this Court to prove that the plaintiff who is described as a limited Liability company in the Statement of Claim is in fact a limited liability company. And as such it cannot be regarded as a juristic person capable of instituting this action”

​A penultimate Court should determine all issues in controversy before it, as it does not enjoy the luxury of a final Court which may not go further after the issue of jurisdiction is resolved. Section 22 of the Supreme Court Act 2011 Cap 424 provides that the Apex Court has very wide powers in respect of matters brought before it. It may make an interim order or grant an injunction which the Court below is authorized to make or grant and may direct any necessary enquires or account to be made or taken and generally shall have full jurisdiction over the whole proceeding as if the proceeding had been instituted and prosecuted in the Supreme Court as a Court of first instance and rehear the case in whole or in part. Hence, by this Section, this Court may make an order for determining the real question in controversy in the appeal. See also, Section 137(1) of the Evidence Act.
Similarly, in Vincent Egharevba v. Osagie (2009) 12 SCNJ Pg. 166 at Pg. 188 SC this Court held thus;
“This Court has said it over and over again that any issue properly raised and canvassed before a trial Court or an appellate Court must be given a fair-hearing and considered. This is so in order to avoid a miscarriage of justice, See Ugbodume v. Abiegbe (1991) 8 NWLR (pt.209) 274… The Respondent’s claim could not be left hanging in the air. The Court of Appeal ought to have madeconsequential orders granting him any reliefs which it considered were supported by the evidence before the trial Court. It would appear that the Court of Appeal did not give enough consideration to the issues before it in its rather hasty and sketchy judgment.”

Therefore, issue two is resolved in favour of the Appellant. However, in the circumstances of the facts of the case where there has been no miscarriage of justice occasioned against the Appellant, I hold that the decision of the Lower Court should not be reversed. It is not every error in the judgment of a Court that leads to the setting aside of the judgment. The error must be so perverse and has caused gross miscarriage of justice. See P. C Mike Eze v. Spring Bank Plc(2011) 12 SCNJ Pg. III; Abiodun v. F.R.N (2018) 11 NWLR Pt. 1629 Pg. 86 SC; Mohammed v. State (2018) 13 NWLR Pt. 1635 Pg. 60 SC.

Even though it was wrong of the Lower Court to consider the case on the merit, in view of the resolution of issue 1, no miscarriage of justice has been occasioned.

​I am of the humble view that this appeal has no merit and thus the reliefs urging the Court to nullify the orders of the lower Court is hereby denied and the appeal is dismissed. Appeal Dismissed. I abide by the order as to cost.

ABDU ABOKI, J.S.C.: I had the privilege of reading before now, a draft of the lead judgment just delivered by My Learned Brother MUSA DATTIJO MUHAMMAD, JSC. I agree with his reasoning and conclusions contained therein.

This is an appeal against the judgment of the Court of Appeal, holden at Lagos (hereafter called the Court below), delivered on the 12th of January, 2011.

The Appellant, as Plaintiff at the Federal High Court, sitting in Lagos, instituted an admiralty action in rem, against the Respondents, claiming damages for loss suffered as a result of “collision” with the 4th Respondent’s ship which occurred at Offshore Lagos Nigeria, on 3rd and 4th August 2002. The Trial Court in its judgment held that the Appellant failed to prove that it was a juristic person, thereby lacking the locus standi to institute the action. The Appellant’s suit was dismissed.

Being aggrieved by the decision of the Trial Court, the Appellant appealed to the Court below. The Court below in its judgment, affirmed the decision of the Trial Court and held that the Trial Court lacked the jurisdiction to adjudicate over the suit, due to the Appellant’s lack of locus standi.

Still aggrieved by the judgment of the Court below, the Appellant appealed to this Court. Its Notice of Appeal filed on the 17th of January, 2011 is upon two grounds, wherein it formulated two issues for this Court’s consideration. They are:
1. Whether the Court of Appeal was right in holding that without the production of the certificate of incorporation of the Appellant, the Appellant had no legal capacity or locus standi to institute the action against the Respondents, when the legal capacity or locus standi of the Appellant to institute the action was not a fact in issue between the parties?
2. Whether the Court of Appeal was right in refusing and/or failing to consider the other two issues (1 and 3) submitted for determination by the Appellant, which arose from the grounds raised in the Appellant’s Notice of Appeal dated the 9th day of March 2007 and which said issues were argued in the Appellant’s Brief of Argument dated the 6th day of March 2009.

​The Respondents also distilled two issues for determination, namely:
1. Whether or not the Court of Appeal was right in holding that the failure of the Appellant to prove its legal personality amounts to lack of locus standi to institute the action thereby denying the trial Court the jurisdiction to entertain the suit?
2. Whether or not a Court which lacks jurisdiction to entertain a suit due to a party’s lack of locus standi can determine the merits of the suit?

My Learned Brother has brilliantly dealt with the issues raised in this appeal and I adopt his judgment as mine. However, and just for the purpose of emphasis, I will put in one or two words of mine in answer to the question of whether or not the Appellant is a juristic personality capable of suing and being sued. In other words, does the Appellant possess the requisite locus standi to sue the Respondents?

The Appellant herein has argued that the legal capacity or locus standi of the Appellant to institute the action was not a fact in issue between the parties. With respect to learned Senior Counsel for the Appellant, this is not a true representation of the record before this Court.

At Paragraph 1 of its Amended Statement of Claim, the Appellantaverred as follows:
“The Plaintiffs at all times material to this action are the owners of the “M.T. OSTANKINO ” and are a limited company registered in Cyprus”

The Respondents denied the averment and asserted at Paragraph 2 of their Amended Statement of Defence/Counter Claim that:
“The Defendants are not in a position to either accept or deny Paragraph 1 of the Statement of Claim, the Plaintiff is therefore under a duty to prove same strictly.”

To my mind, by asking the Appellant to prove strictly the fact of its incorporation, the Respondents who are in no position of knowing whether or not the Appellant is incorporated, have effectively traversed the Appellant’s assertion of being a corporate body and issues having been thus joined on the legal personality of the Appellant, it was incumbent upon the Appellant to prove its legal personality, by producing a Certificate of Incorporation.
In Dairo & Ors v. The Registered Trustees of the Anglican Diocese of Lagos (2017) LPELR 42573 (SC), this Court held that:
“The law is trite that the plaintiff who takes out on action must be competent to institute such on action. Whenever hiscompetency to institute the action is challenged the onus is on him to prove that he has legal capacity to institute the action.
The competency to institute an action also determines the competency of the action itself …… Once the juristic capacity is challenged, the fact of incorporation becomes a fact in issue. The onus of proving that fact lies on the party claiming to be incorporated in the name it has taken out the action as the plaintiff. The burden of proof is discharged upon the production of the Certificate of Incorporation. This is a matter of fact.”
In the extant appeal, the Appellant’s failure to tender its Certificate of Incorporation in proof of its juristic personality is fatal to its case. The consequence is that the juristic personality of the Appellant to sue and be sued is not established and the two Courts below were right to hold that the Appellant had no legal capacity or locus standi to institute the action against the Respondents.

It is on account of this, and the more elaborate reasons contained in the lead Judgment of My Learned Brother, MUSA DATTIJO MUHAMMAD, JSC that I hold that this appeal is devoid of merit and

I accordingly dismiss it.

I also abide by the consequential orders in the Lead Judgment.

TIJJANI ABUBAKAR, J.S.C.: My Lord and learned brother MUSA DATTIJO MUHAMMAD, JSC granted me the privilege of reading in draft the comprehensive leading Judgment prepared and rendered in this appeal. My lord fully and sufficiently dealt the issue in contention, I am therefore in full agreement with the reasoning and conclusion and adopt the Judgment as mine. I have nothing extra to add. I abide by all consequential orders including the order on costs.

Appearances:

EMMANUEL ACHUKWU SAN, with him, B. C. Fiezes, Esq., Chikere Akalonu Esq., Lilian Ezebuihe Esq., and Blessing Umdi. For Appellant(s)

TUNDE BABALOLA SAN, with him, Sunday Onubi and Funmilayo Longe S. For Respondent(s)