LawCare Nigeria

Nigeria Legal Information & Law Reports

WILLBROS WEST AFRICA, INC. & ORS v. MCDONNEL CONTRACT MINING LTD (2021)

WILLBROS WEST AFRICA, INC. & ORS v. MCDONNEL CONTRACT MINING LTD

(2021)LCN/15879(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, April 01, 2021

CA/L/70/2019

Before Our Lordships:

Biobele Abraham Georgewill Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

1. WILLBROS WEST AFRICA, INC. 2. ASCOT OFFSHORE NIGERIA LIMITED 3. BERKELEY GROUP PLC 4. ASSET MANAGEMENT CORPORATION OF NIGERIA (AMCON) APPELANT(S)

And

MCDONNEL CONTRACT MINING LIMITED RESPONDENT(S)

 

RATIO

WHETHER OR NOT A SUBSIDIARY COMPANY HAS ITS OWN SEPERATE LEGAL PERSONALITY

In Asset Management Nominees Limited & Anor V. Forte Oil Plc. & Ors(2017) LPELR – 43553(CA), this Court had put this position of the law so succinctly inter alia thus:
“A subsidiary company has its own separate legal personality. In general, the acts of a subsidiary company cannot be imputed to the parent company and vice versa….”
It is true that a company, including even a subsidiary company upon its incorporation acquires a legal personality of its own that makes it distinct from its parent company. Thus, in law even a subsidiary of a company is in the eye of the law, separate and distinct personalities from the parent company and distinctly different from its members and its liabilities are not ordinarily transferred to neither its Directors, or its Members or its Shareholders. See Prof Ajibayo Akinkugbe V. Ewulum Holdings Nigeria Ltd & Anor (2008)12 NWLR (Pt. 375). See also Okoli V. Morecab Finance (Nig.) Ltd (2007) 14 NWLR (PT. 1053) 37 @ p. 57. PER GEORGEWILL, J.C.A.

WHETHER OR NOT THERE IS A DISTINCTION BETWEEN A COMPANY AND ITS DIRECTORS AND MEMBERS

See Vibelko (Nig.) Ltd V. NDIC (2006) 12 NWLR (Pt. 994) 280 @ pp. 293 – 294 where it was succinctly held inter alia as follows:
“There is a clear distinction between a company and its directors and members in terms of corporate liability. Upon incorporation of a company, it becomes a body corporate and in the eyes of the law, a person is distinct from its members and shareholders. Therefore, a director of an incorporated company cannot be held liable for the loan granted in favour of the company unless he is either a surety or guarantor of the loan granted to the company. A company is an artificial entity, which is separate and distinct from its shareholders and directors or from the members and organs of the company.”

My Lords, I am aware that in law, there are some exceptional but very limited circumstances in which a Court may lift the veil of incorporation so as to hold the shareholders, directors or members personally liable for the debts and or liabilities of the company. This would include cases of grave and proved allegations of fraud or illegality or sham that would in fairness warrant the lifting of the veil of the corporate entity of a company duly incorporated in law. I have scrutinized the pleadings of the Respondent and I cannot find where there is any allegation of fraud and or illegality against the 1st Appellant as would warrant this Court to lift its veil of incorporation to see those who are behind it, including the Shareholders, Directors, Members and such like. Thus, for the veil of incorporation to be lifted by a Court, a case for it must be pleaded and made out by the party so requiring it. In law, the Respondent cannot on its own and without any form of allegation of fraud or sham proceed to lift the corporate veil of the 1st Appellant and begin to pursue its shareholders and or members to satisfy the judgment debt of the 1st Appellant. In Alhaji Mohammed Abacha V. AG. Federation (2013) LPELR – 21749, the Court dealt with the issue of extent of liability of a Shareholder when it reiterated inter alia thus:
“The companies listed for investigation are severally a legal entity each with its individual personality. In the instant case, though the companies listed for investigation may be owned by the Abacha family, the companies are at law different persons altogether from the subscribers to the memorandum of their association. The companies are not in law the agents of the subscribers or trustees for them. The subscribers as members are not liable in any shape or form except to the extent and in the manner provided by the Companies and Allied Matters Act. … a company registered is a separate and distinct entity from any one of its shareholder, no matter how many shares he may hold.”
See also Vibelko (Nig.) Ltd V. NDIC (2006) 12 NWLR (Pt. 994) 280 @ p. 295.
PER GEORGEWILL, J.C.A.

THE POSITION OF LAW ON A PRIVY PARTY

Who is a privy in law? The judgment of a Court binds not only the parties but also all those who come within the legal ambit of privies to the parties on the record, which are of three classes, namely: Privies in blood, Privies in law and Privies in Estate. See Vol. 15 Halsbury Laws of England, 3rd Edition @ P. 196 Article 372. See also General Telephone and Electronics Limited V. Asset Management Corporation of Nigeria (2017) LPELR- 43558 (CA) per Georgewill JCA; Coker V. Sanyaolu (1976) 10 NSCC 566 @ p. 573; Adone V. Ikebudu (2001) 7 SCNJ 513 @ P. 534; Abubakar V. BO & A.P Ltd (2007) 18 NWLR (Pt. 1060) 319; Agbogunleri V. Depo (2008) 3 NWLR (Pt. 1074) 217; Daniel V. Kadiri & Anor (2010) LPELR – 4017 (CA).
A privy is one who even without being formally joined as a party to the suit would still be bound by the result, the judgment of the Court in such a Suit. It refers to any person who is in privity with another, one who is a partaker or has any part or interest in any action or matter or thing. In connection with the doctrine of res – judicata, one who after the commencement of the action has acquired interest in the subject matter affected by the judgment through or under one of the parties as by inheritance, succession, purchase or assignment. See Black’s Law Dictionary 6th Edition @ p. 1200. See also Daniel V. Kadiri (Supra); Chief Oyelakin Balogun V Pastor Moses Afolayan (2005) All FWLR (Pt. 85) 331 @ P. 334; Kola Adedeji & Anor V. Otunba Segun Adebayo & Ors. (2012) LPELR 7990 (CA).
PER GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Lagos State, Lagos Judicial Division, Coram T. A. O. Oyekan – Abdullai J., in Suit No. LD/217/2012, Mc Donnel Contract Mining Limited V. Willbros Africa Inc. & Ors, delivered on 24/5/2018, in which the Respondent’s summons for judgment was granted against the 1st, 2nd and 3rd Appellants.

The Appellants were dissatisfied with the said ruling and had appealed against it vide their Notice of Appeal filed on 11/9/2018 on four grounds of appeal at pages 1213 – 1216 of the Record of Appeal. The Records of Appeal were duly compiled and transmitted to this Court on 21/1/2019. The Appellants’ brief was filed on 8/9/2020 but was deemed as properly filed on 10/9/2020. The Respondent’s brief was filed on 6/10/2020. The Appellants’ reply brief was filed on 26/11/2020 but was deemed as properly filed on 28/1/2021.

At the hearing of this appeal on 28/1/2021, Seni Adio SAN, learned Senior Advocate appearing with Ijoema Njemanze Esq., for the Appellants adopted the Appellants’ brief and the reply brief as their arguments and urged the Court to allow the appeal and set aside the ruling of the Court below. On his part, J. W. Dong Esq., learned counsel for the Respondent adopted the Respondent’s brief as his arguments and urged the Court to dismiss the appeal and affirm the ruling of the Court below.

On 20/2/2012, the Respondent as Claimant had filed along with its Writ of Summons before the Court below a Summons for judgment claiming against the Appellants as Defendants the following reliefs to wit: An Order entering final judgment for the Claimant/Applicant against the 1st-3rd Defendants/Respondents in the sum of:-
1. US $1,216,188.45 as at 31/5/2009 cost of Ghc 100,000.00 being the judgment sum against the 1st Defendant by the High Court of Justice, Accra Ghana.
2. 21% per annum on the judgment sum from 1/6/2009 till judgment is delivered.
3. 10% interest per annum on the judgment sum from the date of judgment to date of final liquidation of the judgment sum.
4. US $10,000.00 being legal practitioner’s fee for instituting this suit.
5. Costs
6. Such further or other order as the Court may seem just or appropriate. See pages 1 – 27 in Volume I of the Records of Appeal.

Earlier in 2009 in Accra, Ghana, the Respondent as Claimant had instituted an action before the High Court of Ghana and had pursuant to a Motion for Summary Judgment obtained judgment entered by S. K. A. Asiedu J, against the 1st Appellant as Defendant in the following terms, to wit:
1. The sum of $1,043,682.00 being the cumulative indebtedness of the Defendant to the Plaintiff.
2. The sum of $101,625.00 being the cumulative interest on the aforesaid sum from the due date to 31/10/2008.
3. Interest on the sum of $101,043,682.00 being ten percent per annum, the prevailing commercial rate for United States Dollar from 31/10/2008 to 31/5/2009 is $60,881.45. See page 28 – 33 in Volume I of the Records of Appeal

BRIEF STATEMENT OF FACTS
Before the Court below, the Respondent as Claimant had on 20/2/2012 instituted an action against the Appellants as Defendants together with its pleadings, statement on oath and documents to be relied upon along with Summons for Judgment supported by an Affidavit. Upon service, the 1st – 3rd Appellants filed a Memorandum of Conditional Appearance and their pleadings, statement on oath and documents to be relied upon and later filed a Notice of Preliminary Objection supported by affidavit and challenging the competence of the Respondent’s Suit alleging of lack of jurisdiction against the Court below on the grounds that Section 8 of the Foreign Judgments (Reciprocal Enforcement) Act, 2004 and the Reciprocal Enforcement of Judgments Act (CAP 175) 1958 ousted the jurisdiction of the Court below, improper service of the originating processes on the 1st Appellant, that the 2nd – 3rd Appellants were not parties to the foreign judgment sought to be enforced against them, and that the issues canvassed in the said Suit are Res – Judicata.

The Respondent filed a Counter-Affidavit to the said preliminary objection and the parties exchanged written addresses and the Court below duly heard the preliminary objection and in its ruling, it held that the service of the originating processes on the 1st Appellant through the 2nd Appellant was improper but nevertheless dismissed other grounds of the 1st – 3rd Appellants’ preliminary objection. On its part, the 4th Appellant as 4th Defendant also filed a Notice of Preliminary Objection against the competence of the Respondent’s Suit against it on the ground that the condition precedent of issuing a 30 – days pre-action notice in writing, before instituting an action against it was not met. The Court below upheld this preliminary objection and consequently struck out the name of the 4th Appellant as a party to the Respondent’s Suit.

Subsequently, the 1st – 3rd Appellants appealed against the ruling of the Court below dismissing their Notice of Preliminary Objection to this Court, where upon the hearing of the appeal, it was dismissed and the Respondent’s Suit was remitted to the Court below for trial and was re-assigned to another Judge of the Court below. The Respondent’s Summons for Judgment was duly heard and on 24/5/2018, the Court below delivered its ruling entering final judgment against the 1st – 3rd Appellants, hence this appeal. See pages 1 – 128, 129 – 240, 241 – 257, 258 – 262, 263 – 267, 273 – 284, 305 – 327, 328 – 338, 787 – 791, 940 – 941, 942 – 943, 944 – 946, 1197 – 1212 and 1213 – 1216 in Volumes I & II of the Records of Appeal.
ISSUES FOR DETERMINATION
In the Appellants’ brief, four issues were distilled as arising for determination from the four grounds of appeal, namely:
1. Whether the Court below was right when it included the 4th Appellant as a Defendant in the judgment whereas the 4th Appellant had been previously struck off the suit for non – service of the statutory pre – action notice on the 4th Appellant by the Respondent?
2. Whether the failure of the Court below to strike out the name of the 4th Appellant as a Defendant in the judgment occasioned a miscarriage of justice since the judgment binds the 4th Appellant who was not a party to the suit and did not participate in the proceedings of the suit?
3. Whether the Court below was right when it held that the 2nd and 3rd Appellants are not distinct entities from the 1st Appellant and that they are liable for the debts of the 1st Appellant?
4. Whether the Court below after finding that the 2nd and 3rd Appellants are privies to the 1st Appellant in respect of the judgment sought to be recovered was right in holding that the Respondent’s suit was not barred by the settled legal principle of res Judicata?

In the Respondent’s brief, four issues were also distilled as arising for determination in this appeal, namely:
1. Whether the 4th Appellant’s appeal ought to be struck out and/or dismissed as incompetent? (Distilled from Grounds 1 and 2)
2. Whether the 4th Appellant can appeal the ruling/judgment as of right when there is no order made against it in the ruling/judgment and merely because its name was inadvertently included on the face of the ruling/judgment of the Court below? (Distilled from Grounds 1 and 2)
3. Whether the Court below rightly held that the Respondent’s suit was not barred by the principle of res Judicata? (Distilled from Ground 4)
4. Whether the Court below rightly arrived at the conclusion that on the preponderance of evidence before it, the Respondent’s case ought to succeed against the 1st – 3rd Appellants? (Distilled from Ground 3).

I have given due considerations to the fact and circumstances of this appeal, the judgment of the Court below and the submissions of counsel in their respective briefs and I am of the view that the proper issues arising for determination in this appeal are the Appellants’ issues one, three and four and Respondent’s issues three and four. In my view, a consideration of these issues would invariably involve a consideration of all the issues in this appeal. However, I shall consider Respondent’s issues one and two along with the Respondent’s preliminary objection filed on 6/10/2020, if they survive, the challenge to their competence by the Appellants and resolve all of these issues as well as the preliminary objection in one fell swoop. I shall then consider the Appellants’ issues three and four and Respondent’s issue three and four together as the sole issue in this appeal.

NOTICE OF PRELIMINARY OBJECTION
By a notice of preliminary objection filed on 6/10/2020, the Respondent is challenging the competence of the appeal of the 4th Appellant on the grounds that the name of the 4th Appellant having been struck out and being no longer a party lacks the right to appeal against the ruling of the Court below as of right except as an interested party and having not sought and obtained the leave of Court rendered its appeal incompetent and liable to be struck out. Interestingly, these very grounds formed the basis of the Respondent’s issues one and two in the main appeal.

In the Respondent’s briefs, issues one and two were formulated directly from the preliminary objection as follows:
1. Whether the 4th Appellant’s appeal ought to be struck out and/or dismissed as incompetent?
2. Whether the 4th Appellant can appeal the ruling/judgment as of right when there is no order made against it in the ruling/judgment and merely because its name was inadvertently included on the face of the ruling/judgment of the Court below? (Distilled from Grounds 1 and 2)

RESPONDENT’S COUNSEL SUBMISSIONS
On the preliminary objection, learned counsel for the Respondent had submitted that the parties are ad idem that the name of the 4th Appellant was struck out as a party at the Court below on 11/7/2012 and contended that the name of the 4th Appellant as it appears on the face of the ruling appealed against was as a result of the inadvertence of the Court below which if its attention had been drawn to it by the 4th Appellant, it would have corrected it as a mere slip and urged the Court to hold that in law, the 4th Appellant being no longer a party to the Respondent’s suit before the ruling appealed against was delivered has no standing to appeal against the said ruling, except with the leave of Court first sought and obtained to do so as an interested party, of which it is not even qualified to be regarded as an interested party to this appeal. Counsel relied on Juliana Ibiyemi Akinbinu V. Yisa Eyifunmi Oseni & Anor (1992) LPELR – 341(SC); In Re: Opekun (2004) 6 NWLR (Pt. 870) 576; Owena Bank (Nig.) Plc. V. N.S.E. Ltd (1997) 8 NWLR (Pt. 515) 1; D.D. Ikonne V. Commissioner of Police, Imo State & Anor. (1986) 4 NWLR (Pt. 36) 473; In Re Ijelu (1992) 9 NWLR (Pt. 266) 414; In Re Ugadu (1988) 5 NWLR (Pt. 93) 189.

It was also submitted that none of the orders made by the Court below in its ruling appealed against prejudicially affects the rights of the 4th Appellant to confer it with the requisite precondition to file an appeal even as an interested party against the said ruling and contended that the 4th Appellant against which no orders was made cannot in law complain of its rights being prejudicially affected by the said ruling and urged the Court to uphold the preliminary objection and hold that the 4th Appellant has no right of appeal against the said ruling, whether as of right or as an interested party and to strike out the name of the 4th Appellant from this appeal and or to strike out the notice of appeal of the 4th Appellant for being grossly incompetent since it was clear that the 4th Appellant’s name only inadvertently appeared on the said ruling. The learned counsel for the Respondent then proceeded to virtually repeat and reiterate these submissions in support of his issues one and two in the main appeal.

APPELLANTS’ COUNSEL SUBMISSIONS
In his reply, learned Senior Advocate for the Appellants had submitted that the Respondent’s issues one and two are incompetent in that they amounted to proliferation of issues having both been purportedly distilled from Grounds 1 and 2 of the Notice of Appeal and contended that in law, a party cannot formulate more than one issue from a ground of appeal and urged the Court to so hold and to strike out Respondent’s issues one and two for being incompetent. Learned SAN relied on Chrisdon Ind. Co. Ltd V. A.I.B. Ltd (2002) 8 NWLR (Pt. 768) 152 @ p. 182; Eze V. Federal Republic of Nigeria (1987) 1 NWLR (Pt. 51) 506; Idika V. Erisi (1988) 2 NWLR (Pt. 78) 563; Atanda V. Ajani (1989) 3 NWLR (Pt. 111) 511.

It was also submitted that the 4th Appellant’s Appeal is competent and thus, ought not to be struck out in that the 4th Appellant can appeal the ruling appealed against as of right because its name is included on the face of the said ruling and contended that there is no evidence that the appearance of the name of the 4th Appellant on the face of the ruling was as a result of inadvertence of the Court below since all the Respondent’s processes reflected the name of the 4th Appellant without any attempt at amending the processes even after the 4th Appellant’s name was struck out and urged the Court to hold that even after the name of the 4th Appellant appeared on the face of the ruling appealed against, the Respondent failed and/or neglected to apply to the Court below to remove the name of the 4th Appellant from it because it intends clearly to proceed against the 4th Appellant to recover the judgment sum. 

It was further submitted that the Respondent was aware that the 4th Appellant had classified the 2nd Appellant’s accounts with Intercontinental Bank Plc. as non -performing loans and in line with its mandate, had converted the 2nd Appellant’s non-performing loans into equity shares and assumed control of the 2nd Appellant and contended that the Respondent also admitted knowing that the 4th Appellant had in 2015 sold parts of the assets of the 1st Appellant acquired by the 2nd and 3rd Appellants to a company known as the PAI Group in a bid to reduce the 2nd Appellant’s debt and urged the Court to hold that but for this appeal, the Respondent would have taken advantage of the 4th Appellant by enforcing the said ruling against it.

It was also further submitted that in law, so long as the name of a party is reflected on the face of a ruling or judgment of a Court that party remains a party to the suit and contended that the 4th Appellant being a party on record to the ruling appealed against required no leave of Court to appeal as an interested Party and urged the Court to so hold and to dismiss the preliminary objection for lacking in merit and to resolve issues one and two in favor of the 4th Appellant against the Respondent and allow the appeal of the 4th Appellant. Learned SAN relied on Okon V. Ekanem (2002) 15 NWLR (Pt. 789) 106 @ pp. 135 – 136; Kalagbor V. INEC (2009) ALL FWLR (PT. 339) 1353; F.A.T.B. Ltd V. Ezegbu (1992) 9 NWLR (PT. 264) 132.

On his issue one, learned Senior Advocate for the Appellants had submitted that the Court below erred in law when it included the 4th Appellant as a Defendant in the ruling whereas the name of the 4th Appellant had been previously struck off the Suit for non-service of the statutory pre-action notice and contended that in law, the 4th Appellant being no longer a party, no judgment can be given against it in the absence of fulfillment of condition precedent of pre-action before an action can be commenced against it and urged the Court to so hold and to allow the appeal of the 4th Appellant and strike out its name from the ruling appealed against. Learned SAN referred to Section 43(2) of Asset Management Corporation of Nigeria Act 2010 and relied on Mobil Producing (Nig) Ltd V. LASEPA (2002) 8 – 9 SC 1; NPA V. Ntiero (1998) 6 NWLR (PT. 555) 640; Ugwuanyi V. NICON Plc (2004) 15 NWLR (Pt. 897) 612; Odoemelam V. Amadiume (2008) 2 NWLR (Pt. 1070) 179; NCC V. MTN (2008) 7 NWLR (Pt. 1086) 229; NIMR V. Akinolugbade (2008) 7 NWLR 68.

On his issue two, whether the failure of the Court below to strike out the 4th Appellant as a Defendant in the ruling appealed against had occasioned a miscarriage of justice, learned Senior Advocate for the Appellants had submitted that the failure of the Court below to strike out the name of the 4th Appellant as a Defendant in the ruling occasioned a miscarriage of justice since the judgment binds the 4th Appellant who was not a party to the suit and did not participate in the proceedings of the suit and contended that the Respondent had deliberately refused to join the 2nd Appellant as a Defendant to the suit in Ghana with the intention of recovering an undefended judgment against the Appellants and urged the Court to hold that as at 24/2/2009, when the Respondent instituted its suit no. AC/104/2009 against the 1st Appellant in Ghana, it knew that the 1st Appellant had been 100% acquired on 7/2/2007 by the 2nd Appellant since it intended to enforce the judgment against the 2nd Appellant and therefore, ought to have been joined and to allow the appeal and strike out the name of the 4th Appellant.

It was also submitted that in law, an agent of a disclosed principal ought not to be sued in place of the disclosed principal and contended that on the showing by the Respondent, the 1st Appellant was an agent of the 2nd Appellant and therefore cannot be sued on its own as the Respondent did and obtained judgment against it before the High Court of Accra, Ghana and urged the Court to hold that since the Respondent intended to recover the judgment of the High Court of Accra, Ghana against the 2nd Appellant, a parent company of the 1st Appellant, it ought to have joined the 2nd Appellant to the Ghana suit and to allow the appeal and set aside the ruling of the Court below. Learned SAN relied PDP & Anor V. INEC & ORS (2008) LPELR – 8597(CA); B. B. Apugo & Sons Ltd V. Orthopaedic Hospitals Management Board (2005) 17 NWLR (Pt. 954) 315; Niger Progress Ltd V. N.E.L. Corporation (1989) 3 NWLR (Pt. 107) 68; Khonam V. John (1939) 15 NLR 12; Carlen (Nig.) Ltd V. Unijos (1994) 1 NWLR (Pt.323) 631.

RESOLUTION OF THE PRELIMINARY OBJECTION
My Lords, the Respondent had by its notice of preliminary objection filed on 6/10/2020 prayed this Court for an order dismissing and/or striking out the 4th Appellant’s appeal for want of Jurisdiction on the grounds that the 4th Appellant’s name, having being struck out as a party by the Court below, became a non-party to the suit and therefore, cannot appeal against the judgment of the said Court as of right but only as an interested party and the 4th Appellant having failed to seek and obtain the requisite leave of Court to appeal as an interested party, its appeal was thereby rendered nugatory as the failure of the 4th Appellant to obtain the requisite leave of this Court before filing its notice of appeal rendered the said notice of appeal filed on behalf of the 4th Appellant on 3/9/2018 incompetent and liable to be dismissed and/or struck out as it relates to the 4th Appellant. The notice of preliminary objection was supported by an affidavit of 16 paragraphs deposed to by one George McDonnell Kofi Asare Ntorinkansah, the Managing Director of the Respondent. In response, the Appellants filed a counter-affidavit of 4 paragraphs deposed to by one Ayodeji Olodo, Litigation Officer in the Law Firm of the Appellant’s Counsel. I have calmly reviewed and evaluated the affidavit and counter-affidavit of the parties in this preliminary objection.

Now, in the Respondent’s brief, the Respondent who stated that issues one and two were distilled from grounds 1 and 2 of the notice of appeal had proceed to argue them as rather arising from the notice of preliminary objection. I have taken time to look at grounds 1 and 2 of the notice of appeal and it is beyond any argument that issue one and two as distilled in the Respondent’s brief have absolutely nothing even remotely with grounds 1 and 2 of the notice of Appeal. In law, a Respondent who has neither cross-appealed nor filed a Respondent’s notice is not at liberty to formulate issues outside the grounds of appeal as filed by the Appellant. He must navigate his issues within the purview and confines of the grounds of appeal as filed by the Appellant or risk the possibility of rendering his issues formulated outside the grounds of appeal incompetent.
In the circumstances therefore, I have no difficulty whatsoever holding, as was urged upon us by the learned Senior Advocate for the Appellants, that issues one and two as distilled in the Respondent’s brief being not issues arising from neither ground 1 and 2 or indeed from any of the other two grounds of appeal in the Appellants’ notice of appeal, is grossly incompetent and thus liable to be struck out and without much ado Respondent’s issues one and two are hereby struck out for being incompetent. See Kayode V. FRN (2017) LPELR – 41865 (CA), where this Court per Georgewill JCA, had reiterated inter alia thus:
“My Lords, from the onset, it appears to me that the lone issue distilled by the Respondent’s counsel neither tied to nor arising from any of the grounds of appeal in this appeal is completely irrelevant and as rightly contended by the Appellant’s counsel incompetent and ought to be discountenanced so that the real issue arising from the grounds of appeal filed on this appeal can be considered and resolved one way or the other on the merit. The law is well settled that a Respondent who had not filed a cross-appeal or a Respondent’s notice is not at liberty to formulate issues for determination not arising from the competent grounds of appeal. In otherwise, he must navigate and nominate his issues for determination strictly within the purview and ambit of and as circumscribed in the grounds of appeal.”
See also EFCC V. Akingbola (2015) All FWLR (Pt. 794) 136 @ pp. 141 – 142. See also Abiola V. FRN (2015) All FWLR (Pt. 773) 1930 @ Pp. 1932 1933; Gwede v INEC (2013) All FWLR (Pt. 767) 615 @ pp. 618 – 619; Agbogidi v. Okoh (2015) All FWLR (Pt. 789) 1107 @ P. 1110; Association of Senior Civil Servant of Nigeria V. Jusun (2014) LPELR- 24185 (CA) per Georgewill JCA.

However, there is a saving grace for the Respondent in that the same issues were adopted for its preliminary objection and in that wise, they are competent to be considered and determined on their merit in respect of the preliminary objection only. In this wise, I shall consider the preliminary objection along with the Appellants’ issues one and two and resolve all of these issues in one fell swoop one way or the other. The crux of the preliminary objection, which is as well the crux of the Appellants’ issues one and two, is whether the 4th Appellant has a right of appeal against the ruling of Court below, its name having on its objection been struck out from the Respondent’s suit by the Court below per Ajose J., on 11/7/2012. See Pages 608 – 609 Vol. 1 Records of Appeal.

Now, the parties are ad idem that the 4th Appellant had, on account of its objection for the failure to be served with a pre-action notice by the Respondent, been struck out off the Respondent’s Suit by the Court below on 11/7/2012. However, on the face of the ruling entering final judgment against the 1st – 3rd Appellants, the name of the 4th Appellant had remained as a party to the Respondent’s suit.

On the one hand, it has been contended vehemently for the Respondent that the name of the 4th Appellant appeared on the face of the ruling appealed against due to inadvertence of the Court below and amounted to a mere slip which the 4th Appellant ought to have approached the Court below to rectify and not to appeal against a ruling in which neither was it a party nor any orders made against it and therefore, without any right of appeal except with the leave of the Court as an interested party, a contention the Respondent on its own made a volte face to counter contend, as it were, that the 4th Appellant cannot even appeal against the said ruling as an interested party.

On the other hand, it was equally contended vehemently for the 4th Appellant that so long as its name appeared on the ruling appealed against and same was not corrected by the Respondent to reflect the striking out of the name of the 4th Appellant, it remained a party on record and therefore, has the right of appeal as of right and thus, required no leave to appeal against the said ruling, more so when the Respondent who knew that the 4th Appellant was no longer a party would have but for this appeal enforced the judgment entered by the Court below against the 4th Appellant.

So, was the name of the 4th Appellant merely inadvertently put on the record of the ruling of the Court below appealed against? I think not! It would appear that in addition to the appearance of the name of the 4th Appellant as the 4th Defendant in the ruling appealed against at page 1197 in Volume II of the Records of Appeal, if that were to be mere inadvertence, then at page 1212 in Volume II of the Record of Appeal, containing part of the ruling of the Court below appealed against, it was stated by the Court below inter alia thus:
“On the issue of res judicata, I am of the view that the issue is yet to be settled between the Claimant and the Berkeley Group Plc., and Asset Management Company of Nigeria (AMCON).”

My Lords, could the above categorical statement of the Court below also be taken as product of mere inadvertence of the Court below? I certainly do not think so! So, should the 4th Respondent have just folded its arms and do nothing about it when the Respondent has taken no step to require the Court below to rectify the ruling of the Court below in line with its earlier decision striking out the name of the 4th Appellant by removing its name from the ruling that ought ordinarily should not be the concern of the 4th Appellant? I think not. In my view, and I so hold, it was the duty of the Respondent to apply to rectify the ruling of the Court below entered in its favor to remove or strike out the name of the 4th Appellant on the record in its ruling. The failure to strike out the name of the 4th Appellant and rather including its name in the final ruling of the Court below, having earlier struck off its name from the record of the case before it, was not a mere slip but an error which can be corrected by an appeal so that the 4th Appellant does not find itself bound by a ruling bearing its name when it has since been struck off from the proceedings of the case before the Court below.

The 4th Appellant, going by the ruling appealed against, both on its face as to the parties as well as specific reference made to it by the Court below, as I had earlier set out in this judgment, in my finding, and I so hold, remained a party and therefore, has the right of appeal against the said ruling as of right as it did and very competently too. It requires no leave of Court to do as an interested party, of which it being a party on record cannot at the same time be an interested party who requires leave of Court to appeal. It is in this wise, I find all the elaborate submissions and decided authorities on who is an interested party as going to no issue. It was the Respondent which on its own volition submitted in one breadth that the 4th Appellant can only appeal as an interested party with leave of Court, and yet in another breadth, even before the Appellants could reply, submitted that the 4th Appellant was no longer even an interested party. It is either the Respondent got confused in what to contend against the 4th Appellant or it did not just give a hoot whatsoever it feels like contending against the 4th Appellant even if they turn out to be contradictory on their own, something must be contended against the 4th Appellant and that is all!

In the circumstances therefore, Appellants’ issue one and two, encompassing the Respondent’s issues one and two in the preliminary objection are hereby resolved in favor of the 4th Appellant against the Respondent and I hold firmly that not only is the 4th Appellant a party on record to the ruling appealed against and therefore, with the right to appeal as of right against it to get its name struck off the record of a ruling, it was not party to the suit leading to the said ruling, but also its appeal has merit and it is hereby allowed. Thus, the Respondent’s preliminary objection which is without an iota of merit is hereby dismissed in its entirety. Consequently, the name of the 4th Appellant is hereby struck out of on the record of the ruling of the Court below delivered on 24/5/2018.

SOLE ISSUE
Whether the Court below was right when it held that the 2nd and 3rd Appellants are not distinct entities from the 1st Appellant and that they are liable for the debts of the 1st Appellant AND whether the Court below rightly arrived at the conclusion that on the preponderance of evidence before it, the Respondent’s case ought to succeed against the 1st – 3rd Appellants?

APPELLANTS’ COUNSEL SUBMISSIONS
On his issue three, whether the Court below was right when it held that the 2nd and 3rd Appellants are not distinct entities from the 1st Appellant, and that they are liable for the debts of the 1st Appellant, learned Senior Advocate for the Appellants had submitted that in law, a company once registered is a separate and distinct entity and thus different from its directors, employees, shareholders and all other officers and contended that the 1st Appellant is a separate entity from the 2nd and 3rd Appellants, though the 2nd Appellant is a shareholder in the 1st Appellant while the 3rd Appellant is a shareholder in the 2nd Appellant and urged the Court to hold that in law, a shareholder cannot be held liable for the actions or debts of a company and to allow the appeal and set aside the ruling of the Court below and dismiss the claims of the Respondent. Learned SAN referred to Section 37 of the Companies and Allied Matters Act Cap C20 Laws of the Federation of Nigeria 2004 and relied on Salomon V. Salomon (1987) AC 22; Asset Management Nomines Limited & Anor V. Forte Oil Plc. & Ors (2017) LPELR – 43553(CA); Prof. Ajibayo Akinkugbe V. Ewulum Holdings Nigeria Ltd & Anor (2008) 12 NWLR (Pt. 375) 1; Okoli V. Morecab Finance (Nig.) Ltd (2007) 14 NWLR (PT. 1053) 37 @ p. 57.

It was also submitted that the interest accrued to a purchaser of shares in a Share Purchase Agreement is that of a shareholder only and contended that in law, a limited liability company is a separate and distinct legal entity under law from its Shareholders and Directors and thus, the Shareholders and Directors cannot be held responsible for the company’s liabilities beyond the unpaid value of their shares and urged the Court to hold that the 1st Appellant is separate and distinct from the 2nd and 3rd Appellants and does not constitute one entity and that the 1st Appellant is separately and distinctly responsible for its own liabilities and the 2nd Appellant, through a Share Purchase Agreement between it and the 1st Appellant is only a shareholder in the 1st Appellant and thus cannot be held to bear the liabilities of the 1st Appellant. Learned SAN relied on Vibelko (Nig.) Ltd V. NDIC (2006) 12 NWLR (Pt. 994) 280 @ Pp. 293 – 294.

It was further submitted that a Court will generally uphold the corporate entity of a company and its distinctiveness from its shareholders or officers except in certain very limited situations and extreme circumstances when a Court may lift the veil of incorporation but not in the instant case which does not fall within the ambit of such and contended that the instant case is not one in which the law allows the sacred veil of incorporation to be lifted as to hold the shareholders liable for the debts of the company and urged the Court to hold that in the absence of any allegation of fraud or illegality, there was in law no need to warrant the lifting of the veil of the corporate entity of the 1st Appellant and to allow the appeal and set aside the ruling of the Court below and to dismiss the Respondent’s Suit. Learned SAN relied Vibelko (Nig.) Ltd V. N.D.I.C. (2006) 12 NWLR (Pt. 994) 280 @ P. 295; Alhaji Mohammed Abacha V. AG. Federation (2013) LPELR – 21749.

It was also further submitted that though a shareholder may be called upon to bear the liabilities of a company only upon being wound up, even then, the liabilities will be strictly limited to the extent of the amount unpaid on the shares at the time of winding up and urged the Court to hold that the 2nd – 3rd Appellants cannot be made to bear the liabilities of the 1st Appellant, which is a separate legal entity and also a going concern and to allow the appeal and set aside the judgment of the Court below and to dismiss the claims of the Respondent. Learned SAN relied on New Nigerian Newspapers V. Agbomabini (2013) LPELR 20741; Nigerian Deposit Insurance Corporation V. Financial Merchant Bank Limited (1997) 4 NWLR (Pt. 501) 509; Commercial Bank (Credit Lyonnais) Nig. Ltd V. Okoli (2009) 5 NWLR (Pt. 1135) 446; Aso Motel Kaduna V. Dayo Deyemo (2006) 7 NWLR (PT 978) 87.
On his issue four, whether the Court after finding that the 2nd and 3rd Appellants are privies to the 1st Appellant in respect of the Judgment sought to be recovered was right in holding that the Respondent’s Suit was not barred by the settled legal principle of Res – Judicata, learned Senior Advocate for the Appellants had submitted that the Court below having held that the 2nd and 3rd Appellants were privies to the 1st Appellant fell into a grave error when it proceeded to hold that the Respondent’s Suit was not res – judicata by reason of the earlier decision between the parties over the same subject matter and issues in Suit No. REJ/02/2010, which suit was dismissed by the Court below per A. A. Philips J., declaring the said judgment unenforceable in Nigeria against non – parties to the Suit in Ghana and urged the Court to hold that the Respondent cannot be allowed in law to re-litigate the same issue and subject matter against the same parties with the striking out of the name of the 4th Appellant on 11/7/2012 and after a decision on it has been given by a Court of competent jurisdiction and to allow the appeal and set aside the ruling of the Court below. Learned SAN relied on Saror & Anor V. Suswam & Ors (2012) LPELR-8611(CA).

It was also submitted that in law, the only recourse open to the Respondent was to appeal against the final decision of the Court below per A. A. Phillip J., declaring the said judgment to be unenforceable in Nigeria against non-parties to the Suit in Ghana and urged the Court to hold that the subsequent suit filed by the Respondent seeking to re-litigate the same issues between the same parties, with the striking out of the name of the 4th Appellant was res-judicata and to allow the appeal, set aside the perverse judgment of the Court below and strike out the Respondent’s Suit.

RESPONDENT’S COUNSEL SUBMISSIONS
On his issue three, whether the Court below rightly held that the Respondent’s Suit was not barred by the principle of Res-Judicata, learned counsel for the Respondent had submitted that this appeal largely seeks to re-argue issues already decided by this Court in Wilbros West Africa Inc & 2 Ors. V. Mcdonnel Contract Mining Ltd (2015) LPELR – 24808 (CA) and contended that in law, a party cannot be allowed to re – litigate issues that has been decided upon by a Court of competent jurisdiction and urged the Court to hold that with the earlier decision of this Court that the Respondent’s suit was for a liquidated sum and the only form of commencing proceedings of such nature is by way of writ of summons, as the Respondent has rightly done, the said suit was proper and to dismiss the appeal for lacking in merit and to affirm the ruling of the Court below. Counsel relied on Ito & Ors V. Ekpe & Ors (2000) LPELR-1561(SC); Toepher of New York V. Edokpolor (1965) ALL NLR 301; NML Capital Limited V. Republic of Argentina (2011) LPELR-17805 (UKSC).

It was also submitted that the Court below clearly held that though the 2nd and 3rd Appellants are privies to the 1st Appellant, the issue submitted for determination before it had not been dealt with in the earlier suit and contended that in law, since Bercley Group Plc., and Asset Management Company of Nigeria (AMCON) were not parties to the earlier decision in the earlier suit, the present Respondent’s suit cannot be affected by the doctrine of res – judicata and urged the Court to hold that the Court below was right when it held that the issue between the parties had not been previously finally determined by a Court of competent jurisdiction and to dismiss the appeal and affirm the ruling of the Court below.

On his issue four, whether the Court below rightly arrived at the conclusion that on the preponderance of evidence before it, the Respondent’s case ought to succeed against the 1st – 3rd Appellants, learned counsel for the Respondent had submitted that the Court below was right in granting the claims of the Respondent against the 1st – 3rd Appellants in view of the merger or acquisition, where one corporation is completely absorbed by another corporation and acquires its assets and liabilities and contended that though the 1st Appellant and the Respondent are both American companies and therefore, the documents of purchase could not have been registered with the Corporate Affairs Commission in Nigeria, however there were sufficient and overwhelming and uncontroverted documentary evidence led by the Respondent to prove its case against the 1st – 3rd Appellants as was rightly found by the Court below that the 2nd – 3rd Appellants were liable for the assets and liabilities, including the debts of the 1st Appellant having acquired the 1st Appellant wholly since 2007 and urged the Court to so hold and to dismiss the appeal and affirm the ruling of the Court below. Counsel relied on Afolabi & Ors V. Western Steel Works Ltd & Ors (2012) LPELR – 9340(SC); Eastern Breweries Plc, Awo Omamma & Ors V. Nwokoro (2012) LPELR-7949(Ca); Olohunde V. Adeyoju (2000) 10 NWLR (Pt. 676) 562; Lipede V. Sonekan (1995) 1 NWLR (Pt. 374) 668; Yardua & Ors V. Yandoma & Ors (2014) LPELR-24217(SC).

It was also submitted that the judgment of the High Court of Ghana constitutes unchallenged, cogent and credible evidence and on a preponderance of evidence and balance of probability, the Respondent discharged the onus on it to prove the indebtedness of the 1st Appellant in the sum of US$1, 216, 188.45 and cost of Ghc 100, 000 against the 1st – 3rd Appellants and contended that in law, where a Defendant does not have a defense to a claim, summary judgment will be entered against him and urged the Court to hold that the 1st – 3rd Appellants had no defense to the claims of the Respondent against them and the Court below was therefore right to have entered final judgment against them in its ruling on the Summons for Judgment procedure and to dismiss the appeal and affirm the ruling of the Court below. Counsel referred to Order 11 Rules 5 (2) High Court of Lagos (Civil Procedure) Rules, 2004 and relied on Uniben V. K.T. Org. Ltd. (2007) 14 NWLR (Pt. 1055) 441.

APPELLANTS’ COUNSEL REPLY SUBMISSIONS
In his reply, learned Senior Advocate for the Appellants had reiterated and virtually re-argued the appeal and submitted further that the Court below was wrong when it held that the Respondent’s case ought to succeed against the Appellants and contended that the Respondent was rather not entitled to judgment against the Appellants in that the interest accruing to a purchaser of shares in a Share Purchase Agreement is that of a Shareholder only since a limited liability company is a separate and distinct legal entity under law from its shareholders and directors and thus, the Shareholders and Directors cannot be held responsible for the company’s liabilities save to the extent of their shareholding in the 1st Appellant and urged the Court to so hold and to allow the appeal and set aside the perverse decision of the Court below to the contrary. Learned SAN relied on New Nigerian Newspapers V. Agbomabini (2013) LPELR – 20741.

It was further submitted that in the absence of any counter argument that the Respondent’s Suit was res – judicata, the Court should resolve that issue against the Respondent whose submissions went off at a tangent delving into issues of enforcement of foreign judgments and to allow the appeal and set aside the perverse ruling of the Court below and to dismiss the Respondent’s suit for lacking in merit and or affected by the doctrine of res – judicata.

RESOLUTION OF SOLE ISSUE
My Lords, the Respondent as Claimant had obtained judgment against the 1st Appellant before the High Court, Accra, Ghana in Suit No. AC/101/2009, which it attempted but without success to enforce against the 1st – 2nd Appellants by means of registration of foreign judgment but was met with the stout and stiff resistance of the 1st and 2nd Appellants leading to the dismissal of same by the Court below per A. A. Phillips J. The Respondent had in the instant case approached the Court below by means of a Writ of Summons to prove the said judgment it obtained in Accra, Ghana against the Appellants. This second attempt was yet again met with the stiff resistance of the Appellants and after a sojourn through this Court and upon a return to the Court below became successful against the 1st – 3rd Appellants against whom the Court below entered final judgment under the Summons for Summary Judgment procedure on the application of the Respondent.

In the earlier Respondent suit no. REJ/02/2010 for the registration of foreign judgment, and upon the preliminary objection of the 1st and 2nd Appellants as Respondents therein, which objection was upheld by the Court below per A. A. Philips J., it was held inter alia thus:
“…wherein the Respondents are praying for an order setting aside or otherwise discharging the ex-parte order issued by this Court on 26/4/2010, an order setting aside or otherwise discharging the decree nisi issued by this Court on 11/5/2010… I therefore find that there are legal impediments against the registering of this Judgment against the 2nd and 3rd Defendants as they are not parties to the action filed by the Claimant herein in the High Court of Ghana.” See pages 291 – 296

It was on the above state of affairs that the Respondent approached the Court below again in the instant suit seeking to prove the judgment of the Court below against the 1st – 4th Appellants. The Respondent as Claimant and the 1st – 3rd Appellants as Defendants joined issues by filing and exchanging their pleadings, statement on oath of witnesses and copies of documents they intended to rely upon. The 4th Appellant filed a preliminary objection challenging the competence of the Respondent’s suit against it on the grounds of failure to serve it with pre-action notice as required by Section 43 (1) of the AMCOM Act 2010, which objection was upheld and the name of the 4th Appellant was struck off from the Respondent’s suit. The 1st – 3rd Appellants also challenged the competence of the Respondent’s suit filed against them but failed both before the Court below and before this Court and the suit was remitted to the Court below by this Court for trial.

The parties, that is the Respondent as Claimant and the 1st – 3rd Appellants as Defendants had joined issues in both the substantive suit and the Summons for Summary Judgment. The 1st – 3rd Appellants as 1st – 3rd Defendants filed a counter-affidavit to the Respondent’s Summons for Judgment deposed to by one Innocent Adesunloye. Upon the remitting by this Court of the Respondent’s Suit, the Court below proceeded to hear the parties in the Respondent’s Summons for Summary Judgment and on 24/5/2018, delivered its ruling entering final judgment against the 1st – 3rd Appellants in favor of the Respondent, finding and holing inter alia thus:
“…It is a fact that this action before this Court was commenced by a Writ of Summon dated 20/2/2012, this is contrary to what the above Foreign Judgment Act states…Going from the aforementioned, an order or a judgment of the Court cannot be made against a person who was not a party to that action. To make such a person so affected, will work injustice to the person and breach the fundamental rule of Natural Justice, audi alteram patem – hear the other side, as no one should be condemned unheard. Indeed, the only reason why a person is made a party to an action is so that he can be bound by the result of the action. However to this general rule admits of two recognised and accepted exceptions; one of which is that a decision of a Court of Law against a party bounds his privies, agents, assigns etc., the other is where a person by his conduct acted in a manner as to preclude him from challenging the judgment such as constitutes estoppel by conduct res Judicata… However going from the exceptions as provided in the case of MA’AJI v. SULEIMAN (supra), does the 2nd and 3rd Defendants qualify as privies, agents and assigns…In my view, the above case has answered the question, whether the 2nd and 3rd Defendants are privies and I hold that indeed the 2nd and 3rd Defendants are privies to the judgment… Consequently, on the evidence adduced, I am of the view that the 2nd and 3rd Defendants are not distinct entities from the 1st Defendant… On the point that the Court lacks jurisdiction to entertain this suit, the Claimant argued that it is only the statement of Claim that the Court should look at to determine if it has jurisdiction and maintained that this suit is for recovery of debt. I will mention here that the Claimant had initially sued the 1st and 2nd Defendant in this High Court seeking to enforce the judgment, the ruling of Justice A.A Phillips….Applying this above elements to this suit, there is an earlier decision on the issue of enforcement of Foreign Judgment as delivered by Justice A.A Phillips, however, Berkeley Group Plc, Asset Management Company of Nigeria (AMCON), were not parties to that ruling and it was also not a final judgment of the Court… On the issue of res judicata, I am of the view that the issue is yet to be settled between the Claimant and the Berkeley Group Plc., and Asset Management Company of Nigeria (AMCON). Consequently, on the preponderance of evidence before me, the case of the Claimant succeeds.” See pages 1197 – in Volume II of the Records of Appeal

My Lords, on the issues as joined by the parties, both in their pleadings and on the affidavit and counter-affidavit and documentary Exhibits relied upon in the Summons for Summary judgment, the crucial questions arising from the issues as distilled by the parties and forming the basis of the sole issue under consideration now are as follow: Whether as between the Respondent and the 1st Appellant, the Court below was right when it entered judgment by its ruling against the 1st Appellant? whether the 2nd – 3rd Appellants are liable in law to pay the debts of the 1st Appellant to the Respondent? whether the 2nd and 3rd Appellants are privies to the 1st Appellant and therefore, bound by the judgment obtained by the Respondent against the 1st Appellant in the High Court of Accra in Ghana and whether as between the Respondent and the 1st – 3rd Appellants the ruling of the Court below per A. A. Phillips J., dismissing the earlier suit filed by the Respondent to register the foreign judgment obtained in Accra, Ghana against the 1st Appellant, constituted res-judicata in respect of the instant suit between the parties?

I have taken time to review both the pleadings and the affidavit evidence of the parties and scrutinized the copious documentary Exhibits relied upon by them as in the record of appeal. There is a copy of the Share Purchase Agreement between the 1st and 2nd Appellants dated 7/2/2007, which are both foreign companies incorporated in the Unites States of America but not registered with the Corporate Affairs Commissions as required by the Companies and Allied Matters Act 2004. There are also the following documents namely: a copy of the 1st Appellant’s press release of 7/2/2007; a copy of the African Oil journal dated 18/7/2007; a copy of the Sun News on-line dated 16/7/2007; a copy of Wikiworld Investment News published on 7/4/2007; a copy of THISDAY Newspaper dated 19/4/2010; a copy of the 2nd Appellant’s “News and Events” page on its website; a copy of the 2nd Appellant’s Company Profile; a certified true copy of the 2nd Appellant’s Statement of Share Capital and Return of Allotment of shares dated 13/12/2006; a certified true copy of the 2nd Appellant’s Statement of Share Capital and Return of Allotment of shares dated 6/7/2007; a certified true copy of 2nd Appellant’s Particulars of Directors or any change therein dated 13/12/2006; a certified true copy of 2nd Appellant’s Particulars of Directors or any change therein dated 20/12/2006; a certified true copy of 2nd Appellant’s Particulars of Directors or any change therein dated 11/4/2011; a certified true copy of 3rd Appellants Particulars of Directors or any change therein dated 16/5/2006.

Now, much of these are public documents and were presented before the Court below as documentary Exhibits as duly certified copies as required by law. Thus, there was no much disputes as to these facts but the real bone of contention in this appeal, to my thinking, is whether on the above facts, the Court below was right in its application of the law to the facts and the conclusions arrived at in its Ruling appealed against by the 1st – 3rd Appellants. See Exhibits A1, AO2, AO3, AO4, AO5; AO6, AO7, AO8, AO9, A10, AO11, AO12, AO13, AO14 and AO15.

Having duly considered the affidavit and documentary Exhibits relied upon by the parties, it seems very clear to me and I so hold that each of the 1st, 2nd and 3rd Appellants, being duly incorporated companies in law, are separate and distinct entity and thus different from their Directors and or Shareholders. They each have a life of their own in law. It is immaterial in law that the 2nd Appellant is a Shareholder, even being majority or only shareholder in the 1st Appellant and that the 3rd Appellant is a Shareholder in the 2nd Appellant. They do not by being shareholders ipso facto become agents of the 1st Appellant. Thus, they each have legal personality of their own as distinct from their Shareholders or Directors or Employees. See Section 37 of the Companies and Allied Matters Act Cap C20 Laws of the Federation of Nigeria 2004. See also Salomon V. Salomon (1987) AC 22.
InAsset Management Nominees Limited & Anor V. Forte Oil Plc. & Ors(2017) LPELR – 43553(CA), this Court had put this position of the law so succinctly inter alia thus:
“A subsidiary company has its own separate legal personality. In general, the acts of a subsidiary company cannot be imputed to the parent company and vice versa….”
It is true that a company, including even a subsidiary company upon its incorporation acquires a legal personality of its own that makes it distinct from its parent company. Thus, in law even a subsidiary of a company is in the eye of the law, separate and distinct personalities from the parent company and distinctly different from its members and its liabilities are not ordinarily transferred to neither its Directors, or its Members or its Shareholders. See Prof Ajibayo Akinkugbe V. Ewulum Holdings Nigeria Ltd & Anor (2008)12 NWLR (Pt. 375). See also Okoli V. Morecab Finance (Nig.) Ltd (2007) 14 NWLR (PT. 1053) 37 @ p. 57.

On the documentary evidence furnished by the Respondent, it is clear and I so hold that the 2nd Appellant, one of whose shareholders is the 3rd Appellant, did purchased 100% shares of the 1st Appellant vide a Share Purchase Agreement dated 7/2/2007. Yet, in law all what that transpired into was simply making the 2nd Appellant a Shareholder in the 1st Appellant. In law, that does not translate into the 2nd Appellant becoming either an agent or bearer of the liabilities of the 1st Appellant beyond the value of its shareholding. This is so because a limited liability company is a separate and distinct legal entity of its own from its Shareholders and Directors. In my finding therefore, the law does not permit holding a Shareholder and or Directors of a limited liability company, such as the 1st Appellant, responsible for the company’s liabilities beyond the value of their Shareholding in the 1st Appellant. I hold further therefore, that in so far as the 1st Appellant remains a legal entity in law and separate and distinct from the 2nd and 3rd Appellants, it remains responsible for its own liabilities and neither the 2nd Appellant nor the 3rd Appellant can be held to bear the liabilities of the 1st Appellant. See Vibelko (Nig.) Ltd V. NDIC (2006) 12 NWLR (Pt. 994) 280 @ pp. 293 – 294 where it was succinctly held inter alia as follows:
“There is a clear distinction between a company and its directors and members in terms of corporate liability. Upon incorporation of a company, it becomes a body corporate and in the eyes of the law, a person is distinct from its members and shareholders. Therefore, a director of an incorporated company cannot be held liable for the loan granted in favour of the company unless he is either a surety or guarantor of the loan granted to the company. A company is an artificial entity, which is separate and distinct from its shareholders and directors or from the members and organs of the company.”
My Lords, I am aware that in law, there are some exceptional but very limited circumstances in which a Court may lift the veil of incorporation so as to hold the shareholders, directors or members personally liable for the debts and or liabilities of the company. This would include cases of grave and proved allegations of fraud or illegality or sham that would in fairness warrant the lifting of the veil of the corporate entity of a company duly incorporated in law. I have scrutinized the pleadings of the Respondent and I cannot find where there is any allegation of fraud and or illegality against the 1st Appellant as would warrant this Court to lift its veil of incorporation to see those who are behind it, including the Shareholders, Directors, Members and such like. Thus, for the veil of incorporation to be lifted by a Court, a case for it must be pleaded and made out by the party so requiring it. In law, the Respondent cannot on its own and without any form of allegation of fraud or sham proceed to lift the corporate veil of the 1st Appellant and begin to pursue its shareholders and or members to satisfy the judgment debt of the 1st Appellant. In Alhaji Mohammed Abacha V. AG. Federation (2013) LPELR – 21749, the Court dealt with the issue of extent of liability of a Shareholder when it reiterated inter alia thus:
“The companies listed for investigation are severally a legal entity each with its individual personality. In the instant case, though the companies listed for investigation may be owned by the Abacha family, the companies are at law different persons altogether from the subscribers to the memorandum of their association. The companies are not in law the agents of the subscribers or trustees for them. The subscribers as members are not liable in any shape or form except to the extent and in the manner provided by the Companies and Allied Matters Act. … a company registered is a separate and distinct entity from any one of its shareholder, no matter how many shares he may hold.”
See also Vibelko (Nig.) Ltd V. NDIC (2006) 12 NWLR (Pt. 994) 280 @ p. 295.

It was even regrettable that though there is a Share Purchase Agreement between the 1st and 2nd Appellants, it was not as required by law registered with the Corporate Affairs Commissions as required by the Companies and Allied Matters Act 2004. In law, it is only a certified copy of such purchase agreement that is permissible and admissible evidence of the alleged purchase, which onus was on the Respondent to discharge but which it failed to do on the ground that the 1st and 2nd Appellants are both foreign companies. However, I am unable to see any such exception in the Companies and Allied Matters Act 2004 allowing the use of an unregistered share purchase agreement in proof of purchase of shares of a company. See Afolabi & Ors V. Western Steel Works Ltd & Ors (2012) LPELR – 9340(SC).

Honestly, if the Respondent had felt so strongly that the 1st Appellant was unable and incapable of meeting its obligation to its creditors, including a judgment creditor, it ought simply to have followed the due process of law to apply by way of a winding-up petition under the Companies and Allied Matters Act 2004 for the winding up of the 1st Appellant, which is indeed in law the right way to go rather than dragging into its nest the 2nd and 3rd Appellants, who are not in any way personally indebted to it but are mere shareholders of the 1st Appellant to take over, as it were, the payment to it of the debts of the 1st Appellant. In law, even in cases of winding up of a company for its inability to pay its just debt to its creditors, though a shareholder may be called upon to bear the liabilities of a company, his liabilities will strictly be limited to the extent of the amount unpaid on his shareholding at the time of winding up. See New Nigerian Newspapers V. Agbomabini (2013) LPELR – 20741(CA). See also Nigerian Deposit Insurance Corporation V. Financial Merchant Bank Limited (1997) 4 NWLR (Pt. 501) 509; Commercial Bank (Credit Lyonnais) Nig. Ltd V. Okoli (2009) 5 NWLR (Pt. 1135) 446; Aso Motel Kaduna V. Dayo Deyemo (2006) 7 NWLR (PT. 978) 87.

I now come to the issue of whether the 2nd and 3rd Appellants are privies to the 1st Appellant in respect of the judgment sought to be recovered by the Respondent against all the 1st – 3rd Appellants and whether in view of the earlier decision of the Court below per A. A. Phillips J, dismissing the Respondent’s earlier suit seeking to register the foreign judgment obtained in Ghana against the 1st Appellant, the present suit was affected by the time honored doctrine of res – judicata. Who is a privy in law? The judgment of a Court binds not only the parties but also all those who come within the legal ambit of privies to the parties on the record, which are of three classes, namely: Privies in blood, Privies in law and Privies in Estate. See Vol. 15 Halsbury Laws of England, 3rd Edition @ P. 196 Article 372. See also General Telephone and Electronics Limited V. Asset Management Corporation of Nigeria (2017) LPELR- 43558 (CA) per Georgewill JCA; Coker V. Sanyaolu (1976) 10 NSCC 566 @ p. 573; Adone V. Ikebudu (2001) 7 SCNJ 513 @ P. 534; Abubakar V. BO & A.P Ltd (2007) 18 NWLR (Pt. 1060) 319; Agbogunleri V. Depo (2008) 3 NWLR (Pt. 1074) 217; Daniel V. Kadiri & Anor (2010) LPELR – 4017 (CA).
A privy is one who even without being formally joined as a party to the suit would still be bound by the result, the judgment of the Court in such a Suit. It refers to any person who is in privity with another, one who is a partaker or has any part or interest in any action or matter or thing. In connection with the doctrine of res – judicata, one who after the commencement of the action has acquired interest in the subject matter affected by the judgment through or under one of the parties as by inheritance, succession, purchase or assignment. See Black’s Law Dictionary 6th Edition @ p. 1200. See also Daniel V. Kadiri (Supra); Chief Oyelakin Balogun V Pastor Moses Afolayan (2005) All FWLR (Pt. 85) 331 @ P. 334; Kola Adedeji & Anor V. Otunba Segun Adebayo & Ors. (2012) LPELR 7990 (CA).

It is the Respondent who had alleged and had crucially relied on the allegation of res – judicata to prove its claims against the 2nd and 3rd Appellants that they are privies to the 1st Appellant and therefore, bound in law to satisfy the judgment obtained against the 1st Appellant by the Respondent in Ghana. The law in this regards is very simple and it is that he who alleges must prove what be alleges, unless admitted by the adverse party, failing which his allegation would remain bare and unproved. This position of the law is well settled and this Court has always reiterated this position in a plethora of its judgments. See MTN Nigeria Communications Limited V. Mundra Ventures (Nig.) Ltd (2016) LPELR- 40343 (CA), were this Court per Georgewill JCA, had reiterated inter alia thus:
“The law is … any fact admitted by one party need not be proved by the other party, thus facts of which the parties do not dispute are taken as duly established and therefore, no onus lies on either party to further prove such facts on which the parties are agreed.”
See also Smurfit Ltd V. M.V. Gongola Hope (2002) 22 WRN 30; Solana V. Olusanya & Ors. (1975) 1 SC 55; Balogun V. Egba Onikolobo Community Bank (Nig.) Ltd (2007) 5 NWLR (Pt. 1028) 584; Hon Zubairu & Anor. V. Iliasu Mohammed & Ors (2009) LPELR – 5124(CA); Alagbe V. Abimbola (1978) 2 SC 39; Egbuna V. Egbuna (1989) 2 NWLR (Pt. 106) 773; Yahaya V FRN (2007) 23 WRN 127.

I had earlier held that the 2nd Appellant is merely a Shareholder in the 1st Appellant, while the 3rd Appellant is a Shareholder in the 2nd Appellant. In this triangle alone, without more, I am unable to see or find any agency relationship or privy connection between these three independent, distinct and corporate legal entities. The legal personality of the 1st Appellant as distinct from the 2nd Appellant as well as the 3rd Respondent and thus with the legal capacity to sue and be sued on its right has long been well settled in law. In law, an incorporated company has a distinct personality of its own as distinct from those of its Directors or Shareholders or Promoters. I hold firmly therefore, that contrary to the finding of the Court below, which is clearly perverse, the 2nd and 3rd Appellants are neither agents nor privies to the 1st Appellant. See Salomon V. Salomon and Company (1897) AC 22 or (2002) 1 WRN 1. See also Kessignton Egbor JP & Anor V. Peter O. Ogbebor (2015) LPELR 24902 (CA); Ramanchandani V. Ekpeyong (1975) 5 SC (Reprint) 29 per Elias CJN; Kate Enterprise Ltd. V. Daewoo Nig. Ltd. (1985) All NLR 267 per Uwais JSC (as he then was later CJN).

Having held as above that the 2nd and 3rd Appellants are not privies to the 1st Appellant, are they in law bound by the judgment of the High Court of Accra, Ghana obtained by the Respondent against the 1st Appellant? I think not! So, the issue as between the Respondent and the 1st Appellant is it affected by the doctrine of res – judicata as contended by the Appellants in this appeal? I certainly do not think so! In my view, since there were two options open to the Respondent to seek to enforce its favorable judgment against the 1st Appellant, with each option carrying different issues that can run independently. Thus, in law a refusal to register the said judgment alone without more cannot amount to the same issue in a fresh action seeking to prove the said judgment against the 1st Appellant. In my finding therefore, and I so hold firmly, the issue of res – judicata, therefore, does not arise and was not made out by the 1st Appellant against the Respondent. However, as between the 2nd and 3rd Appellants and the Respondent, it is my view that the issue of res – judicata does not even arise as the 2nd and 3rd Appellants are mere strangers to whatever had gone down and had become the issue between the 1st Appellant and the Respondent. They have therefore nothing to be bound by the issues strictly between the 1st Appellant and the Respondent.

So has the action against the 2nd – 3rd Appellants for the judgment sum obtained against the 1st Appellant in Ghana any merit as found by the Court below? I think not! I agree with the apt and unassailable submissions of the learned Senior Advocate for the Appellants that by the finding by the Court below that the 2nd and 3rd Appellants were privies to the 1st Appellant then the issue in the instant suit ought to be affected by res – judicata contrary to the finding of the Court below that it was not res – judicata. However, I have found that the 2nd and 3rd Appellants are not privies to the 1st Appellant and therefore, the issue of res – judicata does not arise between the 2nd and 3rd Appellants and the Respondent.

On the state of the entirety of the pleadings, affidavit and documentary evidence before the Court below as in the printed record, I cannot but agree completely with the apt and unassailable submission of learned counsel for the Respondent that the judgment of the High Court of Ghana constitutes unchallenged, cogent and credible evidence under the Summary Judgment procedure against the 1st Appellant and therefore, the Respondent fairly and squarely proved its claims against the 1st Appellant only and was thus entitled to judgment as found rightly by the Court below against the 1st Appellant only. However, as regards the 2nd and 3rd Appellants, the Respondent proved nothing and was therefore, not entitled to any judgment against the 2nd and 3rd Appellants. See Order 11 Rules 5 (2) High Court of Lagos, (Civil Procedure) Rules, 2004. See also Uniben V. K.T. Org. Ltd. (2007) 14 NWLR (Pt. 1055) 441. Interestingly, but very curiously, if the Respondent knew as far back as 2007 that the 2nd Appellant had acquired the 1st Appellant and that the 3rd Appellant holds a majority share in the 2nd Appellant and therefore, all the 1st – 3rd Appellants would be liable for the payment of the debts of the 1st Appellant to the Respondent, then why did the Respondent proceed and obtained judgment against the 1st Appellant only in the High Court of Accra, Ghana, while later turning round to seek enforcement of the said judgment obtained against the 1st Appellant only against the 2nd and 3rd Respondents as well? There were two options legally open to the Respondent upon obtaining the judgment against the 1st Appellant in Ghana, which does not include seeking to enforce it against the 2nd and 3rd Appellants. These two legal options are namely; to apply to the Court in Nigeria to register it against the 1st Appellant, but which attempt, it does appear, failed woefully as per the ruling delivered by Phillip J., and or to institute a fresh action against the 1st Appellant and prove the said judgment against the 1st Appellant, which the Respondent did and quite rightly in my view but in error it went ahead to add the 2nd – 4th Appellants.

I have already held that the 2nd and 3rd Appellants are not privies to the 1st Appellant being just shareholders and therefore, in law not liable beyond the value of their shares in the liabilities of the 1st Appellant. However, for the mere sake of argument, with the finding of the Court below, though wrongly, that the 2nd and 3rd Appellants are privies to the 1st Appellant and with the earlier striking out of the name of the 4th Appellant, was the Court below then right to go further and contrary to its own finding of privies to hold that the doctrine of res – judicata was inapplicable? I think that was a clear summersault and in grave error. Be that as it may, I have found that the 2nd and 3rd Appellants are not privies to the 1st Appellant and therefore, the doctrine of res – judicata was not applicable to them. It would then mean that the Court below, though it has used a wrong process of thinking and reasoning, but had nevertheless arrived at the correct conclusion that the doctrine of res – judicata was not applicable to the 2nd and 3rd Appellants.

In law, once the conclusion by a trial Court is correct, which is what really matters most, no appellate Court would set aside the correct conclusion merely because the reasoning or the route employed by the trial Court to arrive at the correct conclusion turns out to be wrong. It is the law that an appellate Court will not interfere once the conclusion reached by a trial Court is correct, even if the reason which is the pathway to the conclusion or finding turns out to be wrong. See Alhaji Ndayako & Ors. V. Alhaji Dantoro & Ors (2004) 13 NWLR (Pt. 889) 187 @ p. 198, where Edozie JSC., had pronounced with finality on this vexed issue thus:
“An Appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere….”
See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46.

It is true that in law, the time honored doctrine of res – judicata is necessary to ensure the conclusiveness of judicial decisions and that individuals ought to be protected from vexations and multiplicity of suits. However, for it to be applicable, the following three essential elements must be present before a plea of res judicata can be upheld, namely; an earlier decision on the issue, a final judgment on the merits, and the involvement of the same parties and or their privies. See Abe V. Adeniyi (2007) 4 NWLR (Pt. 1023) 191 @ P. 218.

However, as between the Respondent and the 1st Appellant, the doctrine of res – judicata is in my finding far from being applicable. This is so because as regards the issues in the Respondent’s previous suit and the decision of A. A. Philip J., and the issues in the present Respondent’s suit, the issues in both Suits are different, though the subject matter is the same. The former case was for registration of foreign judgment, while the present case was for proof of the foreign judgment by means of Writ of Summons. Thus, it is my view that the grant or refusal of registration of foreign judgment cannot and does not constitute res – judicata in proof of a foreign judgment by means of a Writ of Summons. They can be akin or likened to Garnishee proceedings and Writ of Fifa, both of which have the same subject matter but are of different issues and such that the grant or refusal of one cannot constitute res – judicata to the other. See Purification Techniques Nig. Ltd. V. A.G. Lagos (2004) 9 NWLR (Pt. 879) 665. See also Denton-West V. Muoma (2008) 6 NWLR (Pt. 1083) 418 @ pp. 440 – 442.

The Court below though perfectly correct in finding the 1st Appellant liable for the payment of its debts to the Respondent, it erred in law when it held perversely that the 2nd and 3rd Appellants were liable, as it were beyond the value of the 2nd Appellant’s shareholding in the 1st Appellant, to pay the debts of the 1st Appellant arising from the judgment obtained by the Respondent against the 1st Appellant only in Accra, Ghana to the Respondent. In law, a decision of a Court found to be perverse is liable to be set aside and the only palliative or purgatory for an erroneously perverse decision of a trial Court before an appellate Court is to set aside. In Sogbamu V. Odunaiya (2013) All FWLR (pt. 700) 1247 @ p. 1307, the Court pronounced emphatically thus:

“A decision is said to be perverse when it is speculative, not being supported by evidence or reached as a result of either wrong consideration of evidence or wrong application of a principle of substantive law or procedural law, and an Appellate Court can interfere with a decision of the trial Court that is perverse.”
See Obajimi V. Adediji (2007) 3 NWLR (Pt. 1075) 1; Owor V. Christopher(2010) All FWLR (Pt. 511) 962; Sogbamu V. Odunaiya (2013) ALL FWLR (PL 700) 1247 @ p. 1307.

On the whole therefore, having resolved the Respondent’s Preliminary Objection, along with issues one and two in favour of the 4th Appellant against the Respondent and having resolved the sole issue, encompassing issues three and four in favour of the 3rd and 4th Appellants only against the Respondent, I hold that whilst this appeal succeeds in part as it affects the 2nd, 3rd and 4th Appellants’ only, it fails woefully in respect of the 1st Appellant. Accordingly, the appeal of the 2nd, 3rd and 4th Appellants is hereby allowed, while the appeal of the 1st Appellant, which is lacking in merit, is hereby dismissed.
In the result, it is hereby ordered as follows:
1. That part of the ruling of the High Court of Lagos State, Lagos Judicial Division; Coram: T. A. O. Oyekan – Abdullai J., in Suit No. LD/217/2012: McDonell Contract Minning Limited V. Willbros West Africa Inc. & Ors, delivered on 24/5/2018, in which final judgment was entered in favor of the Respondent against the 2nd and 3rd Appellants, is hereby set aside.
2. The name of the 4th Appellant included in the ruling of the High Court of Lagos State, Lagos Judicial Division; Coram: T. A. O. Oyekan – Abdullai J., in Suit No. LD/217/2012: McDonell Contract Minning Limited V. Willbros West Africa Inc. & Ors, delivered on 24/5/2018, is hereby struck out of the record and from the said ruling.
3. However, that part of the ruling of the High Court of Lagos State, Lagos Judicial Division; Coram: T. A. O. Oyekan – Abdullai J., in suit no. LD/217/2012: McDonell Contract Minning Limited V. Willbros West Africa Inc. & Ors, delivered on 24/5/2018, in which final judgment was entered in favor of the Respondent against the 1st Appellant, is hereby affirmed.
4. There shall be no order as to cost

FREDERICK  OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment of my learned Brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA and I am in agreement with his reasoning and conclusions in allowing the appeal of the 2nd, 3rd and 4th Appellants and disallowing the 1st Appellant for lacking in merit. I abide by all other consequential orders made thereto.

FOLASHADE AYODEJI OJO, J.C.A.: I have read before now the draft of the judgment just delivered by my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA. His Lordship has adequately addressed the issues submitted for determination in this appeal. I completely agree with him that the 2nd and 3rd Appellants cannot be made liable to pay the debt of the Appellant arising from the judgment obtained by the Respondent against him in Accra, Ghana.

It is well settled law and practice that a Court shall not give judgment against a person who was not a party before it and who had no opportunity to defend the suit. The Court has no jurisdiction to decide the fate of a person on a matter concerning him when he was not made a party to the action. The exceptions to this general rule include where such a party is privy to a party or where he has acted in such a way as to preclude himself from challenging the judgment and in which case he is estopped by his conduct. See BABATOLA VS. ALADEJANA (2001) 12 NWLR (PT. 728) 897; AZUH VS. UNION BANK OF NIGERIA PLC (2014) 11 NWLR (PT. 1419) 530; CLAY INDUSTRIES NIGERIA PLC VS. AINA (1997) 8 NWLR (PT. 516) 208.

There is no evidence on record that brings the 2nd and 3rd Respondents within the above exceptions.

It is for this reason and the fuller and detailed reasons contained in the lead judgment that I agree that this appeal should succeed in part. I also set aside the judgment of the lower Court entered in favour of the Respondent against the 2nd and 3rd Appellants. I abide by all the orders contained in the lead judgment including the order as to costs.

Appearances:

Seni Adio SAN, with him, Ijoema Njemanze, Esq. For Appellant(s)

J. W. Dong, Esq. For Respondent(s)