OSTANKINO SHIPPING COMPANY LTD (OWNERS OF THE MT “OSTANKINO”) V. THE OWNERS OF THE MT “BATA 1”
(2011)LCN/4233(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 12th day of January, 2011
CA/L/925/07
RATIO
LOCUS STANDI: MEANING OF THE TERM “LOCUS STANDI”
The term locus standi denotes legal capacity to institute proceedings in a court of law, and can therefore be referred to as “standing” or “title to sue”. See: Owodunmi v. Registered Trustees of CCC (2000) 2 WRN 29; (2000) 6 SC (pt. 111) 60; (2000) 10 NWLR (Pt 229) 338; Oloriode v. Oyebi (1984) 5 SC 1; Ojukwu v. Governor Lagos state & Anor (1986) 3 N. W .L .R (pt. 26) 39; Adesanya v. President of the Federal Public of Nigeria (2002) 44 WRN 80; (1981) 5 SC 112 and Fawehinmi v. FRN (2008) 20 WRN 65 at 108. PER ADZIRA GANA MSHELIA, J.C.A.
LOCUS STANDI: WHAT THE COURT WILL LOOK INTO IN ASCERTAINING WHETHER OR NOT THE PLAINTIFF IN AN ACTION HAS THE LOCUS STANDI TO INSTITUTE THE ACTION
In ascertaining whether the plaintiff in an action has locus standi, it is necessary to examine the statement of claim filed in court to see if it discloses a cause of action vested on him. Thus, only the plaintiff’s statement of claim should be looked into to see if the plaintiff has locus standi to institute the action. In Adesokan v. Adegorolu (1997) 3 N W L R (Pt. 493) 261 at 278. Ogundare, JSC (of blessed memory) held that: “To determine whether the plaintiff has locus standi it is to the statement of claim one looks.” See also Bolaji v. Bamgbose (1986) 4 NWLR (pt.37) 632 at 646. PER ADZIRA GANA MSHELIA, J.C.A.
LOCUS STANDI: WAYS BY WHICH THE DEFENDANT CAN RAISE THE ISSUE OF LOCUS STANDI
The defendant can raise the issue of locus standi in two main ways:- (a) By a motion and (b) In his defence See the position of the law as stated in the case of Ebongo v. Uwemedimo (1995) 8 NWLR (Pt 411) 22 at 51 per Tobi, JCA (as he then was). PER ADZIRA GANA MSHELIA, J.C.A.
LEGAL PERSONALITY OF A COMPANY: HOW TO PROVE THAT A COMPANY WAS INCORPORATED UNDER CAMA
In Nduka v. Ezenwaku (2001) 6 NWLR (Pt 709) at 517, it was held that: – “Where the juristic status of a defendant company is put in issue, the plaintiffs must prove that legal personality by producing the company’ certificate of incorporation.”See also House of Representatives v. S. P. D. C (2010) 11 NWLR (Pt 1205) 213 at 251 ratio 1 paras F; J. K. Randle v. Kwara Breweries Ltd (1986) 6 SC 1 and Magbagbeola v. Sanni (2005) 11 NWLR (Pt 936) 239 at 251. The apex court per Katsina-Alu, J.S.C. now CJN had this to say at page 251. “The best evidence of incorporation is the production of the certificate of incorporation. The appellant in this case, has a duty to establish his claim that commerce Lords Nigeria Limited was incorporated under CAMA thus assuming the status of a juristic person. See Fawehinmi v. NBA (1989) 2 NWLR (Pt. 105) 558 at 632 (supra). The appellant failed to prove the incorporation by production of the certificate of incorporation……….. I must add, in agreement with the submission of the Respondent, that the addition of “Ltd” or plc’ to the name of the firm commerce Lords Nigeria Limited would not necessarily mean that it had been incorporated under CAMA.” PER ADZIRA GANA MSHELIA, J.C.A.
COMPETENCE OF THE COURT: CIRCUMSTANCES WHEN A COURT WILL BE SAID TO BE COMPETENT TO ENTERTAIN A CASE
A court can only be competent to entertain a case if, all the conditions precedent for its having jurisdiction is fulfilled as was decided in the following cases: – Ono Vadis Hotels Ltd. v. Commissioner of Lands, Mid-Western State (1973) 6 SC 71; Rossek v. ACB (1993) 8 NWLR (Pt. 312) 382 and NNPC v. Lutin investment Ltd. (2006) 2 NWLR (pt. 905) 506. In Rossek v. A.C.B. Ltd. (supra) it was stated that a court is competent to adjudicate when:- (a) It is properly constituted as regards members and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (b) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and (c) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See also Madukolu v. Nkemdilim (1962) 2 SCNLR 234 and Sken consult v. Ukey (1981) 1 SC 6. PER ADZIRA GANA MSHELIA, J.C.A.
JUSTICES
HON. JUSTICE ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
HON. JUSTICE HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
HON. JUSTICE JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
Between
OSTANKINO SHIPPING COMPANY LIMITED (OWNER OF THE MT ?OSTANKINO?) Appellant(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)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court Lagos delivered on the 6th day of March, 2007 wherein Olomojobi J. dismissed the appellant’s suit. Admiralty action in rem was instituted by the Appellant against the Respondents, by its writ of summons and amended statement of claim dated 7th day of October, 2003 claiming loss and expenses sustained by the MT ‘Ostankino’ by reason of collision with the Defendants ship the MT “BATA l” which collision occur at offshore Lagos, Nigeria on the 3rd and 4th of August, 2002. The collision occurred when the 4th Respondent went beside the “MT Ostankino” to do a ship-to-ship transfer of Petroleum Cargo.
As per the amended statement of claim dated 7th October, 2003 appellant claims jointly and severally against the defendants the following reliefs: –
“(i) Repair of the damages at Busan – USD62, 755.00.
(ii) Cost of Life Raft Davit – USD20, 605.90.
(iii) Transportation cost of the ABV life Raft – USD7, 370.18.
(iv) Cost of Inflatable life Raft – USD 5, 900.00.
(v) Cost of Immersion Suits – USDI4, 060.00.
(vi) Det Norsake veritas survey Fees (class) – USD 8, 132.29.
(vii) Deviation cost at Piracus to place on the New Davit – USD 9, 412.87.
(viii) OFF – Hire for the Repair of the damages – USD83, 957 .00.
(ix) Disbursement at Lagos – USD 1, 200.00.
(x) Disbursement at the deviation post-piraeu – USD3, 756.57
(xi) Disbursement at the repair port (pusan) – USD 10, 904.26.
(xii) Managers (Unicom) various expenses – USD 5, 000.00.
(xiii) General damages in the sum of – USD50, 000.00.
(xiv) Interest on the above sum at the rate of 10% per annum from the 2nd October, 2001 until Judgment and final payment.
(xv) Costs.”
Consequent upon Appellant’s amended statement of claim, the Respondents filed their amended statement of Defence and counterclaim dated 19th November, 2003 wherein the Respondents claim against the Appellant the following reliefs: –
“(a) Cost of procuring bank guarantee to secure the release of M.T Bata – USD12, 500.00
(b) Loss of earning (off hire at USD11, 500 x 8 days) when the vessel was under arrest and detention, -USD92, 000.00
(c) General damages in the sum of – USD50, 000.00
(d) Cost of this action
In response to the statement of defence and counter-claim the Appellant filed an amended reply to the statement of defence and defence to counter-claim. Trial commenced. Plaintiff/Appellant called one witness while Defendants/Respondents called two witnesses. At the conclusion of trial the learned trial judge entered judgment in favour of the Defendants/Respondents by dismissing the Plaintiff/Appellant’s claim. Olomojobi J. at page 206 of the record had this to say: –
“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 Plaintiff’s vessels MT Ostankino the 3rd and 4th of August, 2003.
2. That the Defendants are not liable for the various heads of claim put up by the plaintiffs.
3. That 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 this action.
Accordingly this suit will be and the same is hereby dismissed.”
The appellant was dissatisfied with this decision hence this appeal. Appellant filed a Notice of Appeal on 9/03/07 containing three grounds of appeal.
In accordance with the practice of this court both parties filed their respective briefs of argument. Appellant’s brief of argument settled by Emmanuel Achukwu Esq. was filed on 6/3/09. While Respondents’ brief of argument settled by A. M. Lawal Esq. was filed on l3/10/09 but deemed properly filed and served on 8/3/10. When the appeal came up for hearing Achukwu Esq. adopted appellant’s brief of argument and urged the court to allow the appeal. Respondents’ counsel Lawal Esq. adopted and relied on Respondents’ brief in urging the court to dismiss the appeal. He cited case of House of Representatives v. SPDC (2010) 11 NWLR (Pt 1205) 213 at 251 paragraph F as additional authority.
From the three grounds of appeal appellant formulated three issues for determination as follows: –
i. whether having regard to the evidence led by Pw1, Dw1 and Dw2, the learned trial judge was right in holding that the damage caused to the OSANKINO” was not as a result of the negligence of the “BATA 1”.
ii. Whether the learned trial judge was right in holding that without the production of the certificate of Incorporation of the plaintiff/Appellant in the circumstance of this case, by the state of the pleadings of both parties and based on the evidence led at the trial had no legal capacity to institute the action against the Defendants/Respondents.
iii. Was the learned trial judge right in holding after admitting the Exhibit “A” and “C” in evidence that the court could not rely on them because pw2 was not their maker?
Respondents also distilled three issues from the three grounds of appeal filed by the appellant. The issues are: –
1. Whether having regard to the evidence led by all the witnesses in the matter, the learned trial judge was right in holding that the damage caused to the MT “OSTANKINO” was not as a result of the negligence of the 4th Respondent (Distilled from Ground l).
2. Whether the learned trial judge was right in holding that without the production of certificate of Incorporation herein the Appellant had no legal capacity to institute the action against the Respondents (Distilled from Ground 2).
3. Whether after admitting Exhibit ‘A’ and ‘C’ in evidence the court was right in holding that the court could not rely on the said Exhibits because PW1 through whom the Exhibits were tendered was not the maker of the Exhibits (Distilled from Ground 3).
In the determination of this appeal I will adopt the issues raised by the appellant. Respondents’ issues are similar to the ones formulated by the appellant as such the issues could be harmonized. Appellant’s issue 1 and respondents’ issue 1 could be treated together, while appellant’s issue 2 and respondents’ issue 2 could also be resolved together. Similarly appellant’s issue 3 and respondents’ issue 3 could be treated as one issue.
I have examined the three issues raised by the appellant. I think it would be more appropriate to consider issue 2 first because it touches on the legal capacity of the appellant to institute the action. For clarity issue 2 reads:
“Whether the learned trial judge was right in holding that without the certificate of Incorporation of the Plaintiff/Appellant herein, the Plaintiff/Appellant in the circumstance of the case, by the state of the pleadings of both parties and based on the evidence led at the trial had no legal capacity to institute the action against the Defendants/Respondents.”
In the appellant’s brief of argument it was submitted that the learned trial judge was wrong in holding that appellant was not competent to institute the action at the lower court because the certificate of Incorporation of the appellant was not tendered in evidence during the trial. Learned counsel contended that the legal personality of the appellant was not a main or relevant issue in the claim by the appellant against the respondents. That at no time either in their pleadings, before or during trial was the competence of this suit put in issue or challenged. If there was no competent plaintiff then the suit would not have been competent. See: Madokolu v. Nkemdili (1982) All NLR 162. Learned counsel submitted that the respondents did not challenge the competence of the suit and not only did they take part fully in the trial, but also filed and prosecuted a counter-claim in the suit which counter-claim they failed to prove and did themselves ask the court not to grant the reliefs. He relied on the case of Administrators/Executors of the Estate of General Sani Abatcha v. Eke – SPIFF & others (2003) 1 NWLR (pt 800) 114 at 166 – 167 paragraphs F – H.
Furthermore it was submitted that the averment in paragraph 2 of the Statement of Defence (see page 9 of the Record of Appeal) that the respondents are not in a position to a “admit or deny –‘ is not a proper traverse See: Asafa Foods Factory v. Alraiwe (Nig) Ltd. (2002) 12 NWLR (Pt 781) 353 at 361 ratio 10 wherein the Supreme Court held that if a defendant refuses to admit a particular allegation in a statement of claim, he must state so specifically and he does not do this satisfactorily by pleading, as in this case, that he is not in a position to admit or deny the particular allegations raised by the plaintiff and/or that he will, at the trial put the plaintiff to the strictest proof thereof, See also Ugochukwu v. Unipetrol (Nig) Plc. (2002) 7 NWLR (pt 765) 1 at 12 paragraphs C-H and Crown Flour Mills Ltd v. Olokun (2008) 4 NWLR (pt 1077) 254 at 286. Learned counsel also contended that respondents filed a counter-claim which for all intents and purposes is a separate suit, against the same Appellant and prosecuted the counter-claim to the very best of their ability. That realising that they have failed to prove their counter-claim, they then sought to hide under the cover not wanting to counter-claim against a non-existent person/company.
Respondents on the other hand submitted that the Appellant is incompetent to institute any action at the lower court, therefore making the Appeal incompetent ab initio. That when the existence of a company is challenged in a suit the only way of proving the existence of the company is the production of the Certificate of Incorporation. Respondent referred to paragraphs 1 of the amended statement of claim. That the only admissible evidence by which the incorporation of a company can be proved is the Certificate of Incorporation. Respondents referred to the testimony of appellant’s witness at page 131 of the Record of Appeal. It was further submitted that the pleadings of the Appellant that it is a Limited Liability Company is not proved and this is vital to the locus of the Appellant. Learned counsel submitted that the appellant never gave any evidence or tendered Certificate of Incorporation to prove its legal capacity. Where no such evidence is furnished the action is bound to fail on the ground that the company lacks the juristic capacity to maintain the action. See: Nduka v. Ezenwaku (2001) 6 NWLR (Pt 70) 517 and House of Representatives v. S.P.D.C. (2010) 11 NWLR (Pt 1205) 231 at 251 ratio I paragraph F. Learned counsel further contends that the Appellant in the instant case, by suing the Respondents had assumed a status of legal personality and he who asserts must prove. That the only way to prove legal capacity is by the production of the Certificate of Incorporation. That it is the duty of the appellant to prove its legal personality. That by virtue of S.36 (6) of the companies and Allied Matters Act the Certificate of Incorporation is the only prima facie evidence of the existence of a Company. Reliance was placed on the cases of Bakare v. Ibrahim (1973) 6 SC 205; Spasco vehicle and plant Hire co. Ltd v. Alraire (Nis) Ltd. (1995) 8 NWLR (Pt 416) 655 and Ishola v. Societe General (Nig) Ltd. (1997) 2 NWLR (Pt 48S) 405.
Furthermore Respondents contended that non-juristic person cannot be represented in an action. That any defect in competence is very fatal to a suit and the proceeding a nullity however well conducted and decided. A court can only be competent to entertain a case if, all the conditions precedent for its having jurisdiction is fulfilled as was decided in the following cases: – Quo Vadis Hotels Ltd. v. Commissioner for Lands, Mid-Western State (1973) 6 SC 71; Rossek v. ACB (1993) 8 NWLR (pt 312) 382 and NNPC v. Lutin Investment Ltd. (2006) 2 NWLR (Pt 965) 506. Learned counsel also contended that by the respondent’s averment in paragraph 2 of their Amended Statement of Defence they have disputed the status of the Appellant as a juristic person making it incumbent on the Appellant to lead evidence to prove its juristic existence. Where a party wants the court to give effect to the content of the document then it must be tendered in court inspite of its admission by the other party. See: Kano v. Oyelakin (2002) 12 NWLR (Pt 282) 399 at 421 – 422. That the claimant did not prove to the trial court that it is a Limited Liability Company and therefore competent to sue but rather relied on a supposed admission by the Respondents. The Respondents cannot by acquiescence confer status on the claimant or confer jurisdiction on the court. That there is nothing in the Record of Appeal indicating that the Appellant is duly incorporated. Learned counsel urged the court to affirm the decision of the lower court. He urged that issue 2 be resolved in favour of the Respondents.
I have considered the submission of both counsel on this issue. The question to be resolved is whether the appellant had legal capacity to institute the action against the Respondents. In other words, did the appellant establish that it had Locus Standi to institute the action against the respondents. The term locus standi denotes legal capacity to institute proceedings in a court of law, and can therefore be referred to as “standing” or “title to sue”. See: Owodunmi v. Registered Trustees of CCC (2000) 2 WRN 29; (2000) 6 SC (pt. 111) 60; (2000) 10 NWLR (Pt 229) 338; Oloriode v. Oyebi (1984) 5 SC 1; Ojukwu v. Governor Lagos state & Anor (1986) 3 N. W .L .R (pt. 26) 39; Adesanya v. President of the Federal Public of Nigeria (2002) 44 WRN 80; (1981) 5 SC 112 and Fawehinmi v. FRN (2008) 20 WRN 65 at 108.
In ascertaining whether the plaintiff in an action has locus standi, it is necessary to examine the statement of claim filed in court to see if it discloses a cause of action vested on him. Thus, only the plaintiff’s statement of claim should be looked into to see if the plaintiff has locus standi to institute the action. In Adesokan v. Adegorolu (1997) 3 N W L R (Pt. 493) 261 at 278. Ogundare, JSC (of blessed memory) held that:
“To determine whether the plaintiff has locus standi it is to the statement of claim one looks.”
See also Bolaji v. Bamgbose (1986) 4 NWLR (pt.37) 632 at 646. The defendant can raise the issue of locus standi in two main ways:-
(a) By a motion and
(b) In his defence
See the position of the law as stated in the case of Ebongo v. Uwemedimo (1995) 8 NWLR (Pt 411) 22 at 51 per Tobi, JCA (as he then was).
In the instant case Appellant pleaded in paragraph 1 of the amended statement of claim as follows:
“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.”
The Respondents in their Amended Statement of Defence dated 19th November, 2003 pleaded in paragraph 2 as follows:-
“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 proof same strictly.”
The above pleadings showed that Respondents joined issue with the Appellant on its legal personality and capacity to maintain the action. The Respondents denied the fact that appellant is a limited liability company. The burden therefore shifts on the appellant to prove that it is a limited liability so as to show its legal capacity to sue. Appellant’s counsel had argued that the averments in paragraph 2 of the statement of defence at page 9 of the record is not a proper traverse and so Respondents are deemed to have admitted paragraph 1 of the Statement of Claim therefore it becomes unnecessary for the appellant to prove its incorporation. I agree with respondents’ counsel that the facts of the cases referred to (supra) and relied upon by the appellant are distinguishable from the facts of the case at hand. The case at hand contains an additional averment to wit:
“The plaintiff is therefore under a duty to proof same strictly.” This additional averment set out above put it beyond doubt that the Respondents denied the status of a limited liability company claimed by the appellant. The issue of party goes to the jurisdiction of the court, therefore appellant has a duty to satisfy the trial court of its corporate existence. There is nothing in the record of appeal indicating that the appellant is duly incorporated. The only admissible evidence by which the incorporation of a company can be proved is the certificate of incorporation. The appellant never give any evidence or tendered certificate of incorporation to prove its legal capacity. During trial, the only evidence on the status of the plaintiff given by its sole witness appearing at page 131 of the record is as follows: –
“I know the Plaintiff. It is based in Cyprus at the time the vessel was in Nigeria, we were their agent —.”
In Nduka v. Ezenwaku (2001) 6 NWLR (Pt 709) at 517, it was held that: –
“Where the juristic status of a defendant company is put in issue, the plaintiffs must prove that legal personality by producing the company’ certificate of incorporation.”See also House of Representatives v. S. P. D. C (2010) 11 NWLR (Pt 1205) 213 at 251 ratio 1 paras F; J. K. Randle v. Kwara Breweries Ltd (1986) 6 SC 1 and Magbagbeola v. Sanni (2005) 11 NWLR (Pt 936) 239 at 251. The apex court per Katsina-Alu, J.S.C. now CJN had this to say at page 251.
“The best evidence of incorporation is the production of the certificate of incorporation. The appellant in this case, has a duty to establish his claim that commerce Lords Nigeria Limited was incorporated under CAMA thus assuming the status of a juristic person. See Fawehinmi v. NBA (1989) 2 NWLR (Pt. 105) 558 at 632 (supra). The appellant failed to prove the incorporation by production of the certificate of incorporation………..
I must add, in agreement with the submission of the Respondent, that the addition of “Ltd” or plc’ to the name of the firm commerce Lords Nigeria Limited would not necessarily mean that it had been incorporated under CAMA.”
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, I hold that appellant is incompetent to institute any action at the lower court. It is only proper juristic persons who can sue or be sued. Defect in competence is very fatal to a suit. A court can only be competent to entertain a case if, all the conditions precedent for its having jurisdiction is fulfilled as was decided in the following cases: – Ono Vadis Hotels Ltd. v. Commissioner of Lands, Mid-Western State (1973) 6 SC 71; Rossek v. ACB (1993) 8 NWLR (Pt. 312) 382 and NNPC v. Lutin investment Ltd. (2006) 2 NWLR (pt. 905) 506. In Rossek v. A.C.B. Ltd. (supra) it was stated that a court is competent to adjudicate when:-
(a) It is properly constituted as regards members and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(b) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(c) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See also Madukolu v. Nkemdilim (1962) 2 SCNLR 234 and Sken consult v. Ukey (1981) 1 SC 6.
The learned trial judge was therefore right to hold that without the production of the certificate of incorporation of the Appellant herein, the Appellant had no legal capacity to institute the action against the respondents.
It is worthy of note that the Respondents in the instant case challenged the legal capacity of the Appellants at address stage. At page 158 of the record it is evident that respondents raised four issues for determination by the trial court in their address. The first issue challenged the legal capacity of the appellant to maintain the action. The first issue read thus: –
“Whether or not the Plaintiff has proved its legal personality and capacity as to entitle it to maintain this action before the court.”
However, despite the fact that both parties called witnesses and closed their case, it was still open to the learned trial judge to review the evidence and find as a fact that appellant had no locus standi to prosecute the claim. See: Kolawole Tokimi v. Chief Adelekun Fagbite & Ors (1999) 10 NWLR (Pt.624) 588 at 597 paragraphs F – G and Ikpuku v. Ikpuku (1991) 5 NWLR (pt. 193) 571 at 585 paragraphs F – G.
The locus standi of the plaintiff/appellant is a pre-condition to the court assuming jurisdiction. See the dictum of Tobi, JCA (as he then was) in the case of Re: Adetona (1994) 3 NWLR (pt 333) 451 at 488 where he stated thus:
“In order to clothe the court with jurisdiction, the plaintiff must show that he has the locus standi to commence or institute the action. This is because the locus standi of the plaintiff is a pre-condition to the court assuming jurisdiction. Where this initial hurdle in the judicial process is not satisfied by the plaintiffs, he cannot proceed to the next stage of the litigation by way of leading evidence in the matter.”
As earlier stated the plaintiff/appellant purports to be a foreign company incorporated in Cyprus. It was incumbent upon it to produce its Certificate of Incorporation in Cyprus. Appellant failed to produce same. Since the appellant lacked the legal capacity to Institute the action ab initio, it follows also that the court lacked the competence to entertain the action instituted by the appellant. Issue of jurisdiction is very fundamental. I agree with the learned trial judge that it a condition precedent to the exercise of jurisdiction that a competent party is before the court. Once there is a defect in competence, it is fatal and the proceedings are nullity.
In the circumstance, I hold that issue 2 fails and is dismissed along with ground 2 of the Notice of Appeal from which the said issue was distilled.
Having resolved issue 2 in favour of the respondents, I find it unnecessary to consider issues 1 and 3 because it would amount to an academic exercise. Consequently, I hold that the appeal is devoid of merit. It is accordingly dismissed.
In view of the fact that the court was not properly clothed with jurisdiction to entertain the action ab initio 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. Parties to bear own costs.
HUSSEIN MUKHTAR, J.C.A.: I have read before now the judgment of my learned brother Mshelia, JCA. I am in complete agreement with his reasoning and conclusion that the appeal is bereft of merit. The unmeritorious appeal, therefore, ought to be and is hereby dismissed.
I subscribe to the order striking out the suit before the lower court for want of jurisdiction and every other consequential order made in the lead judgment inclusive of the one as to costs.
JOHN INYANG OKORO, J.C.A.: I have had the advantage of reading in draft a copy of the lead Judgment of my Learned Brother Mshelia, JCA. She has succinctly and lucidly discussed the main issue agitated in this appeal. I entirely agree with her that this appeal lacks merit and ought to be dismissed. It has to be noted that in the Respondent’s statement of defence, the legal capacity of the Appellant was challenged and the Appellant put to strict proof. At the trial, the Appellant did nothing to satisfy the Court that it has legal capacity to sue.
I agree with the learned trial judge that without the production of the certificate of incorporation of the Appellant Company, its capacity to sue was shaky. This accords with the views expressed by my learned brother in the lead judgment.
In the circumstances of the case therefore, I also dismiss this appeal and abide by all the consequential orders made in the lead judgment, that relating to costs, in conclusive.
Appearances
Emmanuel AchukwuFor Appellant
AND
A. M. LawalFor Respondent
