TOTAL E & P (NIG) LTD v. ELEMELE
(2021)LCN/15668(CA)
In the Court of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Wednesday, June 16, 2021
CA/PH/703/2017
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Tani Yusuf Hassan Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Between
TOTAL EXPLORATION AND PRODUCTION NIGERIA LIMITED APPELANT(S)
And
BRISK U. ELEMELE RESPONDENT(S)
RATIO
DISTINCTION BETWEEN AN ISSUE FOR DETERMINATION AND A PRELIMINARY OBJECTION
It is apparent therefore, that there is a distinction between an issue for determination and a Preliminary Objection. Issues for determination are a prepositions of law or fact in dispute between the parties in the appeal, the determination of which will affect the result of the appeal, one way or another. An issue for determination must therefore take its root or be raised from a Ground or a combination of Grounds of Appeal. A Preliminary Objection on the other hand raises an issue, the determination of which has the effect of terminating the hearing of the appeal in limine, without the need to go into the substance of the appeal. It is therefore incongruous to an appeal, to raise a Preliminary Objection as an issue for determination in the appeal. Where such is done, the purported issue will be declared incompetent and struck out. See I.C.B. (Nig.) Ltd v. Ademuwagun (2005) 7 NWLR (pt. 924) 275; Rivers State Gov’t v. Specialist Konsult (2005) 7 NWLR (pt. 923) 145 and Sanusi v. Ayoola (1992) 9 NWLR (pt. 265) 275. In the case of Odunze v. Nwosu (2007) 13 NWLR (pt. 1050) 1, Chukwuma-Eneh, JSC held that:
“Issue for determination and Preliminary Objection under our Rules do not have a common meeting ground… Preliminary Objection strictly speaking runs counter to the intendment of issues for determination in the claims before the Court in the sense that it aborts, indeed forecloses hearing of the case in limine and if upheld, terminates the case; it automatically puts an end to the case without determining the rights of the parties … While issue for determination presupposes that the case is, all things being equal, on course for the hearing. An issue for determination is a combination of facts and the law on a particular point, which when decided, affects the fate of the appeal… the two are more or less strange bedfellows; and so, for a Preliminary Objection to be dressed in the garb given to it here is strange and improper…”
This principle was re-echoed by my learned brother, Lokulo-Sodipe, JCA in the case of Okelue v. Medukam (2011) 2 NWLR (pt. 1230) 176 as follows:
“It is settled law that there is a difference between a Preliminary Objection and an issue for determination. If the Respondent has any grouse with the competence of the instant appeal, he should avail himself of the procedure adopted in the Rules of this Court relating to the manner in which the competence of the process by which an appeal is initiated is challenged. The Respondent cannot challenge the competence of the appeal by an issue he has formulated for the determination of the appeal.” PER TSAMMANI, J.C.A.
WHETHER OR NOT PARTIES CAN FORMULATE MORE ISSUES FOR DETERMINATION THAT THE GROUNDS OF APPEAL
Secondly, even with the striking of issue one, we are left with two more issues distilled by the Respondent. It should be remembered that, appeals are heard on the issues formulated by the parties; and the issues formulated take their root or must be traced from the Grounds of Appeal. In formulating issues, parties are not permitted to formulate more issues, than there are Grounds of Appeal. A party, whether an Appellant or a Respondent may only formulate issues less than or equal to the number of Grounds of Appeal. In other words, on no account should the issues be more in number than the Grounds of Appeal filed. See State v. Omoyele (2017) 1 NWLR (pt. 1547) 341; Yisi (Nig.) Ltd v. Trade Bank Plc (2013) 8 NWLR (pt. 1357) 522; Nwankwo & Ors v. Yar’adua & Ors (2010) LPELR-2109(SC) and Tanerewa Nig. Ltd v. Plastifarm Ltd (2003) 14 NWLR (pt. 840) 369. Thus, where more than one issue is distilled from the same Ground of Appeal, both or all the issues so distilled shall be struck out. See Agbetoba v. Lagos State Executive Council & Anor (1990) SCNJ 1 at 12; Western Steel Works Ltd & Anor v. Iron & Steel Workers Union of Nigeria & Anor (1987) 3 NWLR (pt. 284) 284 at 314 and Yusuf & Ors v. Akindipe & Ors (2000) 8 NWLR (pt. 669) 376. PER TSAMMANI, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
Now, what I understand from the argument of the Appellant is that it had been sued under a wrong name, and therefore, there is no competent Defendant in this case. That in the absence of a competent Defendant the trial Court had no power to assume jurisdiction over the suit as constituted. There is no doubt that, jurisdiction is the foundation and cornerstone to the validity of any judicial proceeding. Jurisdiction has been defined as, the authority a Court of law has to hear and determine a suit brought before it by litigants, or take cognizance of the matters presented before it for litigation, in a formal way for its determination. Such authority is generally created or donated and circumscribed by the Constitution or even the Statute that created the Court. See Adeyemi v. Opeyori (1976) 9-10 SC 31; S.P.D.C & Ors v. Agbara & Ors (2015) LPELR-23987(SC); Drexel Energy & Natural Resources Ltd & Ors v. Trans International Bank Ltd & Ors (2008) 15 NWLR (pt. 1119) 299 and Abacha v. FRN (2014) 6 NWLR(pt. 1402) 43.
It has been determined in plethora of authorities, that jurisdiction is a threshold issue, and the livewire that determines the authority and competence of any Court to determine any issue that is brought before it for determination. It is the oxygen and the blood that sustain the validity of any judicial proceeding and decision made therein. It is only when a Court has the necessary jurisdiction that it can be said that it has the judicial power to adjudicate upon any cause or matter brought before it by the parties. In the absence of such jurisdiction, any proceeding and decision arrived at by that Court in the absence of requisite jurisdiction, would be null, void and of no effect whatsoever, no matter how brilliantly it has been decided. See Okoye v. Okonkwo (2005) All FWLR (pt. 332) 1526; Ehirin v. I.S.I.F.C (2008) 15 NWLR (pt. 1111) 443 at 482 paras. D-E and Dapianlong v. Dariye (2007) LPELR-928(SC).
A Court would be said to have jurisdiction if the following conditions are satisfied:
(a) the suit or action must be properly constituted as regards numbers and qualifications of members of the Bench;
(b) the subject matter of the case must be within its jurisdiction and there must be no feature that would deprive the Court from exercising its jurisdiction; and
(c) the action must have been initiated by compliance with due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
All the above stated elements must co-exist before a Court can be said to have jurisdiction to hear and determine any cause of action. In the absence of any one of those elements, the Court would have no jurisdiction. See Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) 427; Drexel Energy & Natural Resources Ltd & 2 Ors v. Trans International Bank Ltd & 2 Ors (supra); Madukolu v. Nkemdilim (1962) 2 SCNLR 341 and Mbah v. State (2014) LPELR-22729(SC). PER TSAMMANI, JC.A.
WHETHER OR NOT THE REGISTERED NAME OF A COMPPANY CAN BE ASCERTAINED FROM THE CERTIFICATE OF INCORPORATION
It is also the law that, the registered name of a Company can be ascertained from the Certificate of Incorporation. The Supreme Court in the case of Dennis Njemanze v. Shell BP Port Harcourt (1966) LPELR-25295(SC) held that:
“It is common knowledge, or ought to be, that a Company is registered under the Companies Act and has a registered name; S. 18(2). This can easily be found out; it has to be shown on a signboard at its place of business pursuant to Section 65(1); and it can be ascertained under S. 231 (5) of the Companies Act from the Registrar.” PER TSAMMANI, JC.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Rivers State High Court of Justice, delivered by S. C. Amadi, J. on the 26th day of September, 2017 in Suit No: PHC/528/2016.
The Respondent, who was the Claimant in the Rivers State High Court, had taken out a Writ of Summons against the Appellant as the Defendant on the 8th day of March, 2016. By a Statement of Claim also filed on the 08/3/2016, the Claimant/Respondent sought the following reliefs:
1. A declaration that the Claimant is the bonafide owner of a piece or parcel of land known and called ALI-OJII lying, being and situate in Obagi Town in Ogba/Egbema/Ndoni Local Government Area of Rivers State.
2. A declaration that the Defendant is liable for encroachment/trespass into the Claimant’s ALI-OJII land/ compound having exceeded its common boundary at the concrete drainage along OB8 location access road and thereby illegally buried oil pipes connecting OB8/OB43 to Obagi Flow Station across the Claimant’s ALI-OJII land/compound.
3. N150,000,000.00 (One Hundred and Fifty Million Naira) as general damages for various acts of trespass in the Claimant’s ALI-OJII land/compound building.
i) Illegal occupation of the Claimant’s said ALI-OJII land/compound for forty (40) years and continuing without license, permission and/or any form of acquisition of same and burying oil pipes therein.
ii) Desecration of late Elder Ordu Elemele, i.e. the Claimant’s father’s grave by burying oil pipes directly across the said grave without prior appeasement.
iii) Destruction of Economic and tree crops in the said Claimant’s ALI-OJII land/compound.
4. An order directing the Defendant to remove the oil pipes buried underground in the Claimant’s ALI-OJII land/compound situate close to the Claimant’s residential homes and being highly inflammable, constitute grave danger to the Claimant’s immediate environment.
5. An order of perpetual Injunction restraining the Defendant either by itself, agents, privies, cohorts, associates or any person whatsoever, from interfering with, entering into or burying of oil pipes into any part of the Claimant’s ALI-OJII land/compound.
Upon being served, the Defendant/Appellant filed a Memorandum of Conditional Appearance on 31/10/2016. This was followed by a Notice of Preliminary Objection, which was filed on 06/6/2017. By the said Notice of Preliminary Objection, the Defendant/Appellant prayed the Court below, for a declaratory order:
“That this Honourable Court lacks the jurisdiction to entertain this matter since the Defendant is not a juristic person known to law.”
The Grounds upon which the relief was sought are as follows:
(a) That there is no company registered as Total Exploration and Production Nigeria Limited.
(b) A company can only be sued in its corporate name.
(c) That the Defendant is not a juristic person known to law.
(d) The name of the Defendant ought to be struck out.
(e) Defect in competence is fatal and incurable.
(f) The suit therefore lacks competence and ought to be struck out.
The Preliminary Objection had in support, an Affidavit of 9 paragraphs deposed to by one Precious Zite, a Litigation Secretary in the law firm of Boma Obuoforibo & Co, of Counsel for the Defendant/Appellant. The Claimant/Respondent responded by filing a Counter-Affidavit of 22 paragraphs, deposed to by the Claimant himself. Both parties supported their Affidavits with several annextures, and Written Addresses. Upon considering the Affidavits of the parties, the Exhibits annexed thereto and the Written Addresses, the learned trial Judge ruled against the Defendant by dismissing the Preliminary Objection. The Defendant/Appellant is displeased with the decision and has therefore filed this appeal.
The Notice of Appeal consisting of only one Ground of Appeal was filed on the 06/10/2017. The parties then filed and exchanged Briefs of Arguments. The Appellant’s Brief of Arguments settled by Boma Obuoforibo (Jnr.); Esq. was filed on 08/5/2018 but deemed filed on the 20/5/2019. Therein, only one issue was raised for determination as follows:
“Whether the trial Court was right when it held that Total E & P (Nig.) Ltd is the same as Total Exploration Nigeria Ltd?”
The Respondent’s Brief of arguments settled by E. D. Ihuanne; Esq. was filed on the 12/4/2019 but deemed filed on 20/5/2019. Unlike the Appellant, the Respondent advanced three issues for determination as follows:
(a) Whether the Appellant’s failure to seek and obtain leave of Court before filing of this appeal is not fatal to the competence of this appeal?
(b) Whether the name Total Exploration and Production Nigeria Limited sued as Defendant in this suit is not the same as and/or the full expression of the Abbreviated name of Total E&P Nigeria Limited as appeared on (Exhibit A), the Certificate of Incorporation as to constitute the same legal personality?
(c) Whether the trial Court was right when he held that the Appellant is sued in its registered name and consequently assumed jurisdiction to hear and determine this suit?
In reply, the Appellant filed and served an Appellant’s Reply Brief of Arguments. It was filed on the 11/10/2018 but deemed filed on the 20/5/2019.
Before I proceed, I would like to comment on some points inherent in the issues formulated by the Respondent. First of all, I notice that the Respondent argued issue one (1), raised by him as a Preliminary Objection. It should be noted that appeals are determined on the issues raised by the parties, particularly the Appellant. It is apparent therefore, that there is a distinction between an issue for determination and a Preliminary Objection. Issues for determination are a prepositions of law or fact in dispute between the parties in the appeal, the determination of which will affect the result of the appeal, one way or another. An issue for determination must therefore take its root or be raised from a Ground or a combination of Grounds of Appeal. A Preliminary Objection on the other hand raises an issue, the determination of which has the effect of terminating the hearing of the appeal in limine, without the need to go into the substance of the appeal. It is therefore incongruous to an appeal, to raise a Preliminary Objection as an issue for determination in the appeal. Where such is done, the purported issue will be declared incompetent and struck out. See I.C.B. (Nig.) Ltd v. Ademuwagun (2005) 7 NWLR (pt. 924) 275; Rivers State Gov’t v. Specialist Konsult (2005) 7 NWLR (pt. 923) 145 and Sanusi v. Ayoola (1992) 9 NWLR (pt. 265) 275. In the case of Odunze v. Nwosu (2007) 13 NWLR (pt. 1050) 1, Chukwuma-Eneh, JSC held that:
“Issue for determination and Preliminary Objection under our Rules do not have a common meeting ground… Preliminary Objection strictly speaking runs counter to the intendment of issues for determination in the claims before the Court in the sense that it aborts, indeed forecloses hearing of the case in limine and if upheld, terminates the case; it automatically puts an end to the case without determining the rights of the parties … While issue for determination presupposes that the case is, all things being equal, on course for the hearing. An issue for determination is a combination of facts and the law on a particular point, which when decided, affects the fate of the appeal… the two are more or less strange bedfellows; and so, for a Preliminary Objection to be dressed in the garb given to it here is strange and improper…”
This principle was re-echoed by my learned brother, Lokulo-Sodipe, JCA in the case of Okelue v. Medukam (2011) 2 NWLR (pt. 1230) 176 as follows:
“It is settled law that there is a difference between a Preliminary Objection and an issue for determination. If the Respondent has any grouse with the competence of the instant appeal, he should avail himself of the procedure adopted in the Rules of this Court relating to the manner in which the competence of the process by which an appeal is initiated is challenged. The Respondent cannot challenge the competence of the appeal by an issue he has formulated for the determination of the appeal.”
On that note, I hereby hold that it was wrong for the Respondent to formulate an issue which challenges the competence of the appeal, as an issue for determination in this appeal. That being so, issue one (1) formulated by the Respondent, and which issue challenges the competence of this appeal, is incompetent. It is accordingly struck out. See also C.O.P, Adamawa State v. Saratu & Anor (2015) 3 NWLR (pt. 1446) 276 per Jauro, JCA (as he then was).
Secondly, even with the striking of issue one, we are left with two more issues distilled by the Respondent. It should be remembered that, appeals are heard on the issues formulated by the parties; and the issues formulated take their root or must be traced from the Grounds of Appeal. In formulating issues, parties are not permitted to formulate more issues, than there are Grounds of Appeal. A party, whether an Appellant or a Respondent may only formulate issues less than or equal to the number of Grounds of Appeal. In other words, on no account should the issues be more in number than the Grounds of Appeal filed. See State v. Omoyele (2017) 1 NWLR (pt. 1547) 341; Yisi (Nig.) Ltd v. Trade Bank Plc (2013) 8 NWLR (pt. 1357) 522; Nwankwo & Ors v. Yar’adua & Ors (2010) LPELR-2109(SC) and Tanerewa Nig. Ltd v. Plastifarm Ltd (2003) 14 NWLR (pt. 840) 369. Thus, where more than one issue is distilled from the same Ground of Appeal, both or all the issues so distilled shall be struck out. See Agbetoba v. Lagos State Executive Council & Anor (1990) SCNJ 1 at 12; Western Steel Works Ltd & Anor v. Iron & Steel Workers Union of Nigeria & Anor (1987) 3 NWLR (pt. 284) 284 at 314 and Yusuf & Ors v. Akindipe & Ors (2000) 8 NWLR (pt. 669) 376. In the instant case, there is only one Ground of Appeal which was filed but the Respondent formulated three (3) issues for determination. Those issues are proliferated and accordingly struck out.
Now, since appeals are generally heard and determined on the issues formulated by the Appellant, I shall proceed to consider the lone issue raised by the Appellant.
In arguing the appeal, learned Counsel for the Appellant began by contending that, the learned trial Judge erred in law when he assumed jurisdiction in the case by holding that Total E & P Nigeria Ltd, is one and the same as Total Exploration and Production Nigeria Ltd. He then submitted that, in law, only natural persons, that is, human beings and juristic persons can sue and be sued. It was then submitted that, the Appellant is not a juristic person and therefore could not be sued by the Respondent because it (Appellant) does not have the juristic personality to defend the action. The case of Agbonmagbe Bank Ltd v. General Manager; G.B. Olivant Ltd & Anor(1961) All N.L.R. 116 was cited in support. The cases of Iyke Medical Merchandise v. Pfizer Lac. & Anor (2001) 10 NWLR (pt. 722) 540 at 555 and The Administrator/Executors of the Estate of Sani Abacha v. Eke Spiff (2009) 7 NWLR (pt. 1139) 97 were then cited to further submit that, in law, a company can sue or be sued in its registered name only, as it enjoys juristic personality in law. That, the names, Total Exploration & Production Nigeria Ltd is not known to law because it is not the registered name of the Appellant. That in the circumstances, suing the Appellant in an unregistered name is not just a misnomer but an illegality.
Learned Counsel for the Appellant went on to submit that, it follows that the learned trial Judge erred in law when he held that Total E & P is one and the same as Total Exploration and Production Nigeria Ltd, by placing reliance on a Newsletter called “Neighbors” published by the Appellant as against the Certificate of Incorporation of the Appellant. That, it is the law that a “Newsletter” cannot supersede a Certificate of Incorporation in respect of proving the registered name of a Company. Section 36(6) of the Companies and Allied Matters Act, Cap. C20, Laws of the Federation of Nigeria, 2004 was then cited to submit that, only a certificate of Incorporation of a Company is prima facie evidence of the Company. That, in the circumstances, the best evidence of Incorporation of a Company is the production of its Certificate of Incorporation. The cases of G & T Investment Ltd v. Witt & Bush Ltd (2011) 8 NWLR (pt. 1250) 500 at 540; ACB Plc v. Emostrade Ltd (2002) 8 NWLR (pt. 770) 510 and NNPC v. Lutin Investment Ltd(2006) 2 NWLR (pt. 965) 506 were then cited in support.
It was then submitted by learned Counsel for the Appellant that, where an action is not properly constituted, that is, the proper parties are not before the Court, the Court will lack jurisdiction and competence to entertain the matter in controversy. The cases of Rossek v. ACB Ltd (1993) NWLR (pt. 312); Sken Consult v. Ukey (1981) 1 SC 6 and Araka v. Ejeagwu (2010) 15 NWLR (pt. 692) 684 were cited in support. The case Total E & P Nigeria Ltd v. Mr. Nwankwo Emmanuel & Ors, Appeal No. CA/PH/78/2013 which was decided based on the authority of Njemanze v. Shell BP Port HarCourt (1966) 1 All N.L.R. 8 at 10 was then cited in urging us to hold that, proper parties were not before the Court, and to allow the appeal.
In response, learned Counsel for the Respondent contended that, the Appellant has been properly sued in its registered name as shown by the Respondent in Exhibits CAF1, CAF2, CAF3, CAF4 and CAF5 annexed to the Counter-Affidavit filed in opposition to the Preliminary Objection. That, Exhibit CAF1 clearly shows that the Appellant had made a publication in its “Newsletter” sometimes in 2008, informing the public of change of its name from Elf petroleum Nigeria Limited (EPNL) to Total Exploration & Production Nigeria Limited (TEPNG); which is the name the Appellant has been sued in this case. That, the abbreviation “E & P” stand for “Exploration and “Production” respectively, as held out by the Appellant in the publication of its corporate name. It was then submitted that, in the circumstances, the Appellant was properly sued in its corporate name as disclosed in Exhibit CAF1.
Learned Counsel for the Respondent went on to submit that the cases of Agbonmagbe Bank Limited v. General Manager; G.B. Olivant Ltd & Anor (supra) and Buremoh v. Akande (2017) 7 NWLR (pt. 1563) 74 at 96 cited and relied on by the Appellant are not applicable to the facts of this case. That in the Agbonmagbe Bank case (supra) the Plaintiff sued the General Manager of the 1st Defendant but the Court held that the 1st Defendant was not a juristic person so the name was struck out. That in the instant case, the Claimant did not sue the General Manager of the Total Exploration and Production Nigeria Limited but “Total Exploration and Production Nigeria Limited” which is a juristic person. That, in the instant case, all the conditions precedent for the exercise of the Court’s jurisdiction had been fulfilled.
It is further contended by learned Counsel for the Respondent that, as deposed in paragraphs 5, 12, 13, 15 and 16 of the Counter-Affidavit and the documents annexed thereto, the Appellant has since changed its name from Elf Petroleum Nigeria Limited to Total Exploration and Production Nigeria Limited, been using “Total E & P Nigeria Limited” and “Total Exploration and Production Nigeria Limited” interchangeably, in the conduct of its business. That in that respect the cases of Iyke Medical Merchandise v. Pfizer Lac. & Anor (supra) and The Administrator/Executors of the Estate of Sani Abacha v. Eke Spiff (supra) relied on by the Appellant are inapposite to the facts of the case because, “Total Exploration and Production Nigeria Limited” is known to law and enjoys juristic personality. That, it is not a question of misnomer because there is no ambiguity as to the correctness of the name. We were accordingly urged to hold that, the name, “Total E & P Nigeria Limited” is synonymous with and the same as Total Exploration and Production Nigeria Limited.
The learned Counsel for the Respondent went on to submit that, every condition precedent to the exercise of jurisdiction by the Court had been satisfied, including the fact that proper parties are before the Court. That, considering whether the Appellant has been sued in its right and registered name, the trial Court evaluated the relationship between Exhibit A (the Certificate of Incorporation) and Exhibit CAF1 Notice of (Change of Name) annexed to the Counter-Affidavit. That upon such comparison, the learned trial Judge rightly came to the conclusion that Exhibit CAF1 supports the Respondent’s position that Total E & P Nigeria Limited is an abbreviation of the registered name of the Appellant, which is, “Total Exploration and Production Nigeria Limited”. The case of Nneji v. Chukwu (1988) NWLR (pt. 81) 184 and Obadiaru v. Grace Uyigue (1986) 39 were then cited in urging us to hold that the issue raised in the Appellant’s Objection border on technicality which the law abhors.
On that note, learned Counsel for the Respondent submitted that, the Appellant; “Total E & P Nigeria Limited” which is fully written as “Total Exploration and Production Nigeria Limited” is a registered Limited Liability Company incorporated under the Companies and Allied Matters Act (CAMA). That in the circumstances, the Appellant has been properly sued in its registered name and clothed with juristic or legal personality, capable of suing and being sued. That the cases of Rossek v. ACB Ltd (supra); Sken Consult v. Ukey (supra) and Araka v. Ejeagwu (supra), cited by the Appellant to contend that proper parties are not before the Court, are inapplicable to the facts of this case because, in the instant case the proper parties were before the trial Court. Furthermore, that the unreported case of Total E & P Nigeria Limited v. Mr. Emmanuel Nwankwo & Ors in Appeal No. CA/PH/78/2013 per Ejembi Eko, JCA is not in pari materia with the instant case, as contended by learned Counsel by the Appellant. That in that case, the Appellant was sued in the name of “Total Exploration and Production Company Nigeria Limited” as against “Total E & P Nigeria Limited”. That the addition of the word Company on the registered name completely altered the name of the Appellant. That in the instant case, the Appellant was sued in its registered name of Total Exploration and Production Nigeria Limited which is a full expression of the abbreviated “E & P” in the name of the Appellant.
Learned Counsel for the Respondent went on to submit that, the Respondent has sufficiently shown via Exhibit CAF1, that the Appellant recognizes the names; “Total Exploration and Production Nigeria Limited” as its correct registered name. That such explanation where the Appellant held out and acknowledged the name with which it was sued in the instant case, is lacking in the case of Total E & P Nigeria Limited v. Mr. Emmanuel Nwankwo & Ors (supra). That, the case of Njemanze v. Shell BP Port Harcourt (supra) also cited by the Appellant, is also not applicable to the facts of this case. That in that case, the Defendant had objected on the ground that, there is no Company known as “Shell BP Port Harcourt”. It was held that the Defendant therein, was sued under a wrong name and that, it is not a case of misnomer. That in Usman v. G.O.C. (Nigeria Limited), an amendment was sought to substitute the name with G.O.C. Enterprises Nigeria Limited, but same was refused. We were accordingly urged to hold that the Appellant was properly sued in its registered name, and to dismiss the appeal.
In Reply on Point of Law, learned Counsel for the Appellant contended that, on the face of Exhibit “A” (Certificate of Incorporation) of the Appellant, the Respondent’s position is misconceived as a Newsletter cannot supercede the Certificate of Incorporation. That in G and T Investment Ltd v. Witt and Bush (supra), the Supreme Court stressed that, the best evidence of proof of Incorporation of a Company is the production of its genuine Certificate of Incorporation. It was then submitted that, no other document can take the place of a Certificate of Incorporation when it comes to the name of a registered company. That Total E & P Nigeria Ltd, cannot be an abbreviation of Total Exploration and Production Nigeria Limited. We were accordingly urged to resolve the lone issue in this appeal in favour of the Appellant.
Now, what I understand from the argument of the Appellant is that it had been sued under a wrong name, and therefore, there is no competent Defendant in this case. That in the absence of a competent Defendant the trial Court had no power to assume jurisdiction over the suit as constituted. There is no doubt that, jurisdiction is the foundation and cornerstone to the validity of any judicial proceeding. Jurisdiction has been defined as, the authority a Court of law has to hear and determine a suit brought before it by litigants, or take cognizance of the matters presented before it for litigation, in a formal way for its determination. Such authority is generally created or donated and circumscribed by the Constitution or even the Statute that created the Court. See Adeyemi v. Opeyori (1976) 9-10 SC 31; S.P.D.C & Ors v. Agbara & Ors (2015) LPELR-23987(SC); Drexel Energy & Natural Resources Ltd & Ors v. Trans International Bank Ltd & Ors (2008) 15 NWLR (pt. 1119) 299 and Abacha v. FRN (2014) 6 NWLR(pt. 1402) 43.
It has been determined in plethora of authorities, that jurisdiction is a threshold issue, and the livewire that determines the authority and competence of any Court to determine any issue that is brought before it for determination. It is the oxygen and the blood that sustain the validity of any judicial proceeding and decision made therein. It is only when a Court has the necessary jurisdiction that it can be said that it has the judicial power to adjudicate upon any cause or matter brought before it by the parties. In the absence of such jurisdiction, any proceeding and decision arrived at by that Court in the absence of requisite jurisdiction, would be null, void and of no effect whatsoever, no matter how brilliantly it has been decided. See Okoye v. Okonkwo (2005) All FWLR (pt. 332) 1526; Ehirin v. I.S.I.F.C (2008) 15 NWLR (pt. 1111) 443 at 482 paras. D-E and Dapianlong v. Dariye (2007) LPELR-928(SC).
A Court would be said to have jurisdiction if the following conditions are satisfied:
(a) the suit or action must be properly constituted as regards numbers and qualifications of members of the Bench;
(b) the subject matter of the case must be within its jurisdiction and there must be no feature that would deprive the Court from exercising its jurisdiction; and
(c) the action must have been initiated by compliance with due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
All the above stated elements must co-exist before a Court can be said to have jurisdiction to hear and determine any cause of action. In the absence of any one of those elements, the Court would have no jurisdiction. See Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) 427; Drexel Energy & Natural Resources Ltd & 2 Ors v. Trans International Bank Ltd & 2 Ors (supra); Madukolu v. Nkemdilim (1962) 2 SCNLR 341 and Mbah v. State (2014) LPELR-22729(SC).
As stated earlier, the complaint of the Appellant subject of this appeal is that, it was sued under a wrong or non-existent name. That, in my view, brings the complaint of the Appellant within the scope of the third element of jurisdiction listed above. The Appellant’s complaint therefore is to the effect that, there is no competent Defendant in the action initiated by the Respondent in the Court below. No doubt, it is the law that, for any action to be sustainable in Court, the Writ of Summons and/or Statement of Claim, must disclose a competent Plaintiff or Claimant and a competent Defendant. In other words, there must be a Plaintiff and a Defendant who must be a juristic person. Such party must be either a natural or artificial person who is capable of suing or being sued. See Akindele v. Abiodun (2009) 11 NWLR (pt. 1152) 356; Maersk Line & Anor v. Addide Investments Ltd & Anor (2002) LPELR-1811(SC) and Zain Nigeria Ltd v. Alhaji Mohammed Kanu Ilorin (2012) LPELR-9279(CA).
Now, in the determination of the Preliminary Objection, the learned trial Judge considered the grounds for the objection, the affidavit in support and against the objection including the documents annexed thereto, and the Written Addresses of Counsel; and held at pages 90 line 1–91 line 6 of the Record of Appeal as follows:
“The issue in this case is within a narrow compass, that is, whether the Defendant/Applicant is sued in its registered name? The contention of the Applicant is that the name, Total Exploration and Production Nigeria Limited is not its registered name. Its registered name is Total E & P Nigeria Limited and referred to Exhibit “A”, the Certificate of Incorporation.
On the part of the Respondent, the Respondent maintained that the Applicant is sued in its correct registered name.
It is true that the Certificate of Incorporation, Exhibit “A”, what appears is Total E & P Nigeria Limited but in the Applicant’s Newsletter called “Neighbours” No. 2 of 2008 annexed by the Respondent in his Counter-Affidavit as Exhibit “CAF1”, it is stated therein as follows:
“CHANGE OF NAME”
Elf Petroleum Nigeria Limited EPNL has changed its name to Total Exploration and Production Nigeria Limited (TEPNG). All former documents remain valid. The general public please take note.”
“Neighbours” is a fortnightly Newsletter published by the External Affairs Directorate of the Applicant. I think, Exhibit ‘CAF1’ published the Applicant’s application. In other words, Exhibit ‘CAF1’ supports the Respondent’s position that Total E & P Nigeria Ltd is an abbreviation of the registered name of the Defendant which is Total Exploration and Production Nigeria Limited.
Even though the Certificate of Incorporation, Exhibit “A” abbreviated “E & P”, there is nothing legally wrong for the Respondent writing “E” and “P”, in full, i.e. Exploration & Production. I think, this is one of the applications that border on technicality which the law now abhors in our judicial process. See Nneji v. Chukwu (1988) NWLR (pt. 81) and Obadiaru v. Grace Uyigue (1986) 3 SC 39.
Flowing from the above, I hold that the Applicant is sued in its registered name. The Applicant is a juristic person and can sue and be sued, and this Court has the requisite jurisdiction to hear and determine this suit.”
A careful consideration of the findings and conclusion of the learned trial Judge reproduced above, has revealed to me that same cannot be faulted. It is indeed, the law that, a duly incorporated body carries with it the legal incidents of incorporation, which includes its being dressed with the crown of juristic personality, capable, like natural persons, of suing and being sued in its corporate name. Then, where a wrong is done to a registered Company, it is the Company alone that can sue in its name. Conversely, a person wronged by the conduct or activities of the Company can sue the Company in its name. See Peat Marwick, Ani Ogunde & Co v. Okike (1995) 1 NWLR (pt. 369) 71; Stallion Seafoods Ltd Warri v. Nogumwegie (2013) LPELR-20313 (CA); Idanre Local Government Area v. Governor of Ondo State (2010) 14 NWLR (pt. 1214) 509 and Governor Kwara State v. Lawal (2007) 13 NWLR (pt. 1051) 347 at 379. It is therefore the law that, for an action to be maintained against a corporate entity, it must be in its registered name. See also Medical Merchandise v. Pfizer Inc. (2002) FWLR (pt. 53) 77.
It is also the law that, the registered name of a Company can be ascertained from the Certificate of Incorporation. The Supreme Court in the case of Dennis Njemanze v. Shell BP Port Harcourt (1966) LPELR-25295(SC) held that:
“It is common knowledge, or ought to be, that a Company is registered under the Companies Act and has a registered name; S. 18(2). This can easily be found out; it has to be shown on a signboard at its place of business pursuant to Section 65(1); and it can be ascertained under S. 231 (5) of the Companies Act from the Registrar.”
It is clear to me from the above dictum of the Supreme Court that, the Certificate of Incorporation is not the only means of ascertaining the registered name of an incorporated company. In the instant case, the Plaintiff/Respondent produced before the Court a Newsletter titled “NEIGHBOURS”, published on a fortnightly basis by the Appellant. Therein, the Respondent published as follows:
“CHANGE OF NAME
Elf Petroleum Nigeria Limited EPNL has changed its registered name to TOTAL EXPLORATION AND PRODUCTION NIGERIA LIMITED (TEPNG). All Former documents remain valid. The general public should please take note.”
It would be seen therefore, that the Appellant has given notice to the public, which include the Respondent that its registered name is “Total Exploration and Production Nigeria Limited”. Having given that notice, the Appellant is now estopped from contending that “Total Exploration and Production Nigeria Limited” is not its registered name. After all, “Total Exploration & Production Nigeria Limited”, is not too different and distinguishable from Total E & P Nigeria Limited, as the “E” & “P” can be validly read to mean “Exploration & Production”, especially in view of the notice of Change of Name “Exhibit CAF1” annexed to the Respondent’s Counter-Affidavit. I agree with learned Counsel for the Respondent that, Exhibit “CAF1” was not available to this Court when the case of Total E & P Nigeria Limited v. Nwankwo Emmanuel & Ors (2014) LPELR-22679(CA) was decided by this Court. I therefore agree with the learned trial Judge that, in view of Exhibit “CAF1”, that “Total Exploration & Production Nigeria Limited” is one and the same as “Total E & P Nigeria Limited.”
I wish to also add that this is not even a case of misnomer which occurs where there is a mistake with regard to the name of a party in a suit. It occurs where the right person is brought to Court but under a wrong name. See Njoku v. U.A.C. Foods (1999) 12 NWLR (pt. 632) 552 at 564; C.S. Mbh & Co. v. Emespo J. Continental Ltd (2002) 3 NWLR (pt. 753) 2015 and Access Bank v. Agege Local Gov’t & Anor(2016) LPELR-40491(CA). In the instant case, the two names can be ascribed to the same entity. Furthermore, the parties in this case knew the entity they are referring to and none of them, particularly the Appellant, cannot claim to have been misled, in view of Exhibit “CAF1”. Thus in Registered Trustees of the Airline Operators of Nigeria v. Nigerian Airspace Management Agency (2014) 8 NWLR (pt. 1408) 1, Okoro, JSC held as follows:
“Let me state emphatically here that when both parties are quite familiar with the entity envisaged in a Writ of Summons and could not have been misled or have any real doubt or misgiving as to the identity of the person suing or being sued, then there can be no problem of mistaken identity to justify a striking out of the action. A misnomer that will vitiate the proceedings would be such that will cause reasonable doubt of the intending to sue or be sued.”
As stated earlier, the issue in this case, is not even that of a misnomer or mis-discreption of the Defendant/Appellant. The name used in the Certificate of Incorporation of the Appellant has been given the same meaning or interpretation by the Appellant in Exhibit “CAF1”. I therefore hold, as done by the learned trial Judge, that the “E & P” in the Certificate of Incorporation of the Appellant was written in full by the said Appellant in Exhibit CAF1 as “Exploration & Production”. Accordingly, I hereby hold that “Total Exploration & Production Nigeria Limited” as written on the Writ of Summons and other Court processes, is synonymous with “Total E & P Nigeria Limited” as contained in the said Certificate of Incorporation.
Having held as above, I am of the view, and do hold that this appeal lacks merit. It is accordingly dismissed. The ruling of the Rivers State High Court of Justice, delivered on the 26th day of September, 2017 in Suit No: PHC/528/2016 is hereby affirmed.
TANI YUSUF HASSAN, J.C.A.: I had a preview of the lead judgment delivered by my learned brother, HARUNA SIMON TSAMMANI, JCA. I am in complete agreement with his reasoning and conclusion that the appeal has no merit and deserves to be dismissed. Same is accordingly dismissed by me. I affirm the judgment of the Court below.
PAUL OBI ELECHI, J.C.A.: I agree with the reasoning and conclusion arrived at by my learned brother Haruna Simon Tsammani, JCA that this appeal lacks merit and is hereby dismissed.
I also dismiss the appeal and hereby affirm the judgment of the lower Court in suit No. PHC/528/2016.
Appeal dismissed.
Appearances:
Boma Obuoforibo, (Jnr.), Esq., with him, Tamunodiepreye Foin-Ogunwale, Esq. For Appellant(s)
E. D. Ihuanne, Esq. For Respondent(s)