XINGJIANG POWER TRANSMISSION & TRANSFORMATION ENGINEERING COMPANY v. MOTRACT GLOBAL NETWORKS LIMITED (2019)

XINGJIANG POWER TRANSMISSION & TRANSFORMATION ENGINEERING COMPANY v. MOTRACT GLOBAL NETWORKS LIMITED

(2019)LCN/13324(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 22nd day of May, 2019

CA/MK/134/2011

JUSTICES

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

Between

XINGJIANG POWER TRANSMISSION & TRANSFORMATION ENGINEERING COMPANY – Appellant(s)

AND

MOTRACT GLOBAL NETWORKS LTD – Respondent(s)

RATIO

WHETHER OR NOT IT IS ONLY A NATURAL OR JURISTIC PERSONS THAT CAN SUE OR BE SUED

It is a fundamental principle of law that only a natural or juristic person can sue or be sued. In Admn/Execs, Estate, Abacha V Eke-Spiff (2009) 7 NWLR (Pt. 1139) 97, Mohammed, JSC held: As a general rule, only natural persons, that is to say, human beings and juristic or artificial persons such as bodies corporate are competent to sue and be sued before any Court of law. In other words, no action can be brought by or against any party other than a natural person or persons unless such a party has been given by statute expressly or impliedly or by Common Law either a legal personality under the name by which it sues or it sued or a right to be sued by that name … This is because a law suit is in essence, the determination of legal rights and obligations in any given situation. Therefore, only such natural juristic persons in whom the rights and obligations can be vested are capable of being proper parties to law suits before Courts of law. Following this general rule, where either of the parties is not a legal person capable of exercising legal rights and obligations under the law, the other party may raise this fact as a preliminary objection which, if upheld, normally leads or results in the action being struck out. See also G. & T. Investment Ltd. Vs Witt & Bush Ltd (2011) 8 NWLR (Pt. 1250) 500, 540, C, D-H; & Adighije V Nwaogu (2010) 12 NWLR (Pt. 1209) 419, 458-459. Therefore, the onus is in the party claiming the status of a juristic person derived from incorporation, to establish this before the Court. The corporate status of a body is established by the production of its Certificate of Incorporation. See: ACB V Emostrade Ltd (1997) LPELR-5213(CA) 38; Fawehinmi V NBA (No. 2) (1989) 2 NWLR (Pt. 105) 558, D; Apostolic Church V AG (Mid-West) (1972) 4 SC 150. PER SANKEY, J.C.A.

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This is an interlocutory Appeal against the Ruling of the High Court of Justice, Nasarawa State sitting in Lafia, delivered on 19th May, 2011 by Ramalan J., wherein the preliminary objection of the Appellant to the competence of the Respondent’s suit for lack of a proper Defendant was overruled and dismissed.

The Appellant filed a preliminary objection to the competence of the Suit No: NSD/LF14/2011 filed on the 04-02-11 on the grounds inter alia that there was no proper Defendant before the Court, as the Defendant on record is not a juristic person and therefore cannot be sued by the Plaintiff.

?The Respondent filed a counter-affidavit as well as a motion on notice raising an objection to the Appellant’s preliminary objection on the ground that the objection amounts to demurrer, which has been abolished. The lower Court heard arguments on the preliminary objection from both parties and delivered its Ruling on 19th May, 2011 overruling the preliminary objection and dismissing same. Dissatisfied, the Defendant filed a Notice of Appeal wherein it complained on three Grounds.

At the hearing of the Appeal on 18-03-19, both parties and their Counsel were not in Court. This is in spite of the fact that they were duly served hearing notices for the hearing of the Appeal. However, since the Appellant had filed its Brief of argument, and based on an Order of Court made on 01-12-14 for the Appeal to be heard on the Appellant?s Brief alone, the Respondent having failed to file any Brief of argument despite having been duly served, the Court deemed the Appellant?s Brief of argument filed on 27-03-12 and deemed duly filed on 05-12-12, as having been argued pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules, 2016.

The issues for determination distilled by the Appellant in its Brief of argument are as follows:

1. Whether the lower Court was right in law when it placed the burden of proof on the Defendant to produce in evidence the Certificate of Incorporation of the Defendant to prove that the Defendant is not a juristic personality. (Grounds 2 and 3)

2. Whether the lower Court has the jurisdiction and competence to hear this case in view of the fact that the Defendant is not a proper party to

be sued by the plaintiff in this case. (Ground 1)

Both issues shall be addressed together.

Learned Counsel for the Appellant submits that it is the law that he who asserts the existence of a fact has the burden to prove the existence of such a fact; and that the burden of proof lies on the party who asserts the affirmative of an issue in a case. He contends that the Respondent, (as Plaintiff), in its counter-affidavit and written submission at the lower Court asserted that the Defendant is a juristic person that can be sued. In other words, that the Defendant (now Appellant) is a limited liability company duly incorporated or registered under the Companies and Allied Matters Act. Therefore, that it is a proper Defendant that can be sued in this case. The Defendant argued the contrary and submitted that the Defendant is not a limited liability Company because it has not been registered under the Companies and Allied Matters Act.

Thereafter, the lower Court ruled (at page 100 of the Record of Appeal) agreeing with the submission of the Respondent and held that the burden to prove the incorporation status of the Defendant is on the Defendant who

asserted negatively that the Defendant is not a juristic person and cannot be sued in its name. Counsel therefore submits that the lower Court was wrong when it held as it did.

Counsel submits that the burden to establish the incorporation status of the Defendant lies on the Plaintiff who asserted affirmatively that the Defendant is an incorporated Company, to prove its incorporation status by producing in evidence the original or certified true copy of the Certificate of Incorporation of the Defendant. He contends that the law is that the burden of proof of the juristic personality of a company is on the party claiming the existence of the status of the juristic personality. Reliance is placed on G. & T. Investment Ltd. Vs Witt & Bush Ltd (2011) 8 NWLR (Pt. 1250) 500, 540, C, D-H; & Adighije V Nwaogu (2010) 12 NWLR (Pt. 1209) 419, 458-459.

Counsel submits that the lower Court, by its finding, held in essence that the Defendant should prove a negative assertion. He contends that where the burden of proof is misplaced on a wrong party to prove a fact, the Appeal Court is entitled to set aside such a Ruling or Judgment because a

miscarriage of justice has invariably occurred as a result of the misplacement of the burden of proof. Reliance is placed on Iheanacho V Chigere (2004) 17 NWLR (Pt. 901) 130, 152, A-C.

Counsel therefore submits that the lower Court was wrong when it held that the burden of proof was on the Defendant to prove a negative assertion that the Defendant is not a juristic personality and cannot be sued.

Counsel further submits that the lower Court lacks the jurisdiction and competence to hear and determine the suit because the Defendant on Record being sued as ?Xingjiang Power Transmission & Transformation Engineering Co.? is not a juristic personality and cannot be sued in such a name. This is more so that the Plaintiff failed to prove the incorporation status of the Defendant by producing in evidence the Certificate of Incorporation of the defendant as a registered company or an incorporated company. He submits that in consequence, this action is not properly constituted. Where an action is not properly constituted due to lack of proper parties; the Court lacks the jurisdiction and competence to entertain the action.

G & T Investment Ltd V Witt & Bush Ltd (supra) at 542- 543 paras A-C; & Unilorin V Adesina (2010) 9 NWLR (Pt. 1199) 331 at 377 paras F-H are relied on.

Counsel contends that the lower Court should therefore have struck out the substantive suit for lack of competence and jurisdiction to hear and determine the matter for this reason. Reliance is placed on U.U.U.V., Isuofia V U.V. Union (2011) 6 NWLR (Pt. 1243) 394, 414, D-F; & Abubakar V Yar?adua (2008) 19 NWLR (Pt. 1120) 1, 152, E-H.

Counsel thus submits that the lower Court was wrong when it held that it had the jurisdiction to entertain the suit and that the Defendant should go ahead to file its defence, if any. The Court is therefore urged to resolve both issues in favour of the Appellant and to strike out the suit for lack of jurisdiction.

Findings –

It is a fundamental principle of law that only a natural or juristic person can sue or be sued. In Admn/Execs, Estate, Abacha V Eke-Spiff (2009) 7 NWLR (Pt. 1139) 97, Mohammed, JSC held:

?As a general rule, only natural persons, that is to say, human beings and juristic or artificial persons such as bodies corporate are

competent to sue and be sued before any Court of law. In other words, no action can be brought by or against any party other than a natural person or persons unless such a party has been given by statute expressly or impliedly or by Common Law either a legal personality under the name by which it sues or it sued or a right to be sued by that name … This is because a law suit is in essence, the determination of legal rights and obligations in any given situation. Therefore, only such natural juristic persons in whom the rights and obligations can be vested are capable of being proper parties to law suits before Courts of law. Following this general rule, where either of the parties is not a legal person capable of exercising legal rights and obligations under the law, the other party may raise this fact as a preliminary objection which, if upheld, normally leads or results in the action being struck out.?

See also G. & T. Investment Ltd. Vs Witt & Bush Ltd (2011) 8 NWLR (Pt. 1250) 500, 540, C, D-H; & Adighije V Nwaogu (2010) 12 NWLR (Pt. 1209) 419, 458-459.

Therefore, the onus is in the party claiming the status of a juristic

person derived from incorporation, to establish this before the Court. The corporate status of a body is established by the production of its Certificate of Incorporation. See: ACB V Emostrade Ltd (1997) LPELR-5213(CA) 38; Fawehinmi V NBA (No. 2) (1989) 2 NWLR (Pt. 105) 558, D; Apostolic Church V AG (Mid-West) (1972) 4 SC 150.

The submission made by learned Counsel for the Appellant that in the peculiar circumstances of this case it is the Respondent that should prove its lack of juristic personality, is well taken. It is indisputable that in paragraphs 1 and 2 of its Statement of claim (at page 4 of the Record), the Respondent (as Plaintiff) pleaded as follows:

1. ?The plaintiff is a limited liability company duly incorporated under the laws of Nigeria and having her office at Lafia within jurisdiction.

2. The defendant is also a limited liability company having her office in Lafia also within the jurisdiction of this Honourable Court.? (Emphasis supplied)

Having so pleaded, the Appellant (as Defendant) instantly raised a preliminary objection to the hearing of the suit on the ground that the Appellant was mistaken in its

pleadings that it (Defendant) was juristic person. Instead, the Defendant categorically stated that it was not registered and as such, had no juristic personality. Thus, in its Notice of preliminary objection, the Defendant stated inter alia thus at pages 65-70 of the Record of Appeal:

?GROUNDS OF PRELIMINARY OBJECTION

1. That the defendant is not a juristic person and cannot sue or be sued by the plaintiff or any body.

2. The defendant is not a registered limited liability company and has no capacity to enter into contract with the plaintiff or anybody.

3. That the defendant is not a juristic personality and cannot sue and be sued by the plaintiff or anybody in the Court of law.

4. The plaintiff?s suit or action is incompetent and the Honourable Court lacks the jurisdiction to hear and determine same.

5. That the plaintiff?s action lacks competence and the Honourable Court is robbed of jurisdiction to hear the case and the defendant shall at the hearing urge the Honourable Court to strike out or dismiss the suit for lack of jurisdiction.

6. That the defendant lacks the competence to enter into any

contractual agreement for lack of incorporation of the defendant as a limited liability company.? (Emphasis supplied)

The averments of the Defendant (now Appellant) in the affidavit in support were made in the same vein and served only to amplify these grounds.

In its own counter-affidavit in response, the Respondent?s answer is contained in paragraph 6 as follows:

?6. That paragraphs 3(a)-(n) is false in that S.A. Ayiwulu Esquire of Counsel is not competent to inform the deponent herein of the said facts since he is neither a director, promoter nor shareholder of the Defendant company and as such, is not competent to inform the deponent.?

Based on these facts, certainly the onus lies on the person who asserts the affirmative, id est that the Defendant is a juristic person, to prove same, and this can only be done by the production of the Defendant?s Certificate of Incorporation; and not on the Defendant who contends the negative. It is not open to the Respondent to seemingly contend that the Appellant has produced no evidence to prove that it (Appellant) has no registration certificate. How does the Defendant

prove a negative, aside from asserting same, which it has done? The contention was ludicrous.

Instead, the Respondent, (as Plaintiff), having positively pleaded that the Appellant is a limited liability company, the fact is now peculiarly within its own knowledge, the appellant having denied same. Hence, the onus was on the Respondent to adduce evidence to establish this. Consequently, I am of the view that the Appellant was under no obligation to adduce evidence of a non-existence registration. The strange thing here, (which is out of the norm of the run of the mill cases on the subject), is that it is the Plaintiff who has asserted that the Defendant is a limited liability company, and not the Defendant who is claiming this status for itself. So, the burden is on the Respondent who has positively asserted, to so prove.

I therefore do not agree with the learned trial Judge that the answer to the challenge to its jurisdiction by the Defendant (Appellant) based on the peculiar facts of the case, is the production of the Certificate of Incorporation by the person who has categorically asserted that it is not a juristic person, to wit: the Defendant

(now Appellant).

The objection taken to the Respondent?s right to sue the Appellant, who has asserted that it is not a juristic person, goes to the competence of the lower Court to entertain the action. As aforesaid, the onus in this case is on the party who insists that another is clothed with corporate status and so imbued with the right to be sued, to establish this. I therefore disagree with the finding of the learned trial Judge at page 100 of the Record of Appeal inter alia as follows:

“Since the plaintiff in his statement of claim stated that the Respondent is a limited liability company i.e. paragraph 2 therein. The defendant is now saying it is not a juristic personality. It now turns him to exhibit such fact before the Court which had failed. The objection cannot therefore be sustained. It is refused. He should go ahead and file his defence, if any.”

Thus, I resolve both issues in favour of the Appellant.

Accordingly, I find merit in the Appeal. It succeeds and is allowed. The Ruling of the lower Court delivered on 19-05-11 is set aside, and in its stead, the suit No: NSD/LF14/2011 is struck out on ground of

incompetence. I award costs assessed at N100, 000.00 in favour of the Appellant and against the Respondent.

JOSEPH EYO EKANEM, J.C.A.: I read in advance the lead judgment of my learned brother, Sankey, JCA. ?I agree with the reasoning and conclusion therein.

It was the respondent (as plaintiff) that averred that the appellant (as defendant is a limited liability company ({and thus a juristic person). The appellant raised a preliminary objection to the hearing of the suit on the ground that it is not a juristic person and therefore has no capacity to sue and be sued. Thus the respondent asserted the positive of the issue while the appellant asserted the negative of the issue of the legal personality of the appellant. It is he who asserts the positive of an issue that has the burden of proving the same and not he who asserts the negative of the issue. A negative averment does not require proof. See National Maritime Authority V Marine Management Associates Incorporated (2010) 4 NWLR (Pt. 1185) 613, 646. The only way, in the circumstance, that the respondent could have established or proved the registration of the appellant

as a limited liability company and therefore its legal personality was by the production its certificate of incorporation or registration or a certified true copy of it in evidence. See G & T Investment Ltd V Witt & Busch Ltd (2011) 8 NWLR (Pt. 1250) 500, 540 and Dairo V Registered Trustees of the Anglican Diocese of Lagos (2018) 1 NWLR (pt. 1599) 62, 77. The respondent failed in this regard. The trial Court was wrong in putting the burden of establishing that it is not a legal person on the appellant that asserted the negative. The burden rather was that of the respondent that asserted the positive of the issue. Was the appellant expected to obtain a certificate of non-incorporation from the Corporate Affairs Commission? That is not the normal course of things. The trial Court was therefore wrong in overruling the objection of the appellant.

It is for the reasons and the more comprehensive reasons set out in the lead judgment or my learned brother that I agree that the appeal has merit. I also allow it and strike out suit No. NSD/LF14/2011. I abide by the order as to costs made in the lead judgment.

JOSEPH TINE TUR, J.C.A. (DISSENTING): I have read the judgment of my learned brother on the bench, Jummai Hannatu Sankey, JCA. I have headed the resolution of the dispute submitted by the parties in this appeal as a ?decision? for I could have titled same as an ?opinion? or ?determination? by virtue of the provisions of Section 294(2)-(3) and 318(1) of the Constitution which provides as follows: –

?294(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:

Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.

(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.

xxxxxxx

318(1) In this Constitution unless it

is otherwise expressly provided or the con otherwise requires: –

?Decision? means, in the relation to a Court, any determination of that Court and includes judgment; decree, order, conviction, sentence or recommendation.”

?Determination? has legal meanings. A ?determination? has been defined by the Supreme Court in Deduwa & Ors. vs. Okorodudu & Ors. (1976) 1 NMLR 236 per Alexander C.J.N. at pages 243-244 in the following manner: –

?More light is thrown on the meaning of the words ?decision? and determination? in the case of the Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, CJN in giving the ruling of the Court said at page 432: ?We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It means ?a bringing or coming to an end? or (the mental action of coming to a decision,? or ?the resolving of a question?).

In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word

?determine? as meaning ?make an end of the matter.? In our own experience in this (Supreme Court), we send a matter back to the High Court for a rehearing and determination; the word ?determination? therein meaning ?ending of the matter.”

The learned authors of Black?s Law Dictionary, 9th edition, page 514 defines ?determination? as follows: –

?1. A final decision by a Court or administrative agency (the Court?s determination of the issue). (Cases: Administrative Law and Procedure, 489, Federal Civil Procedure, 928).

Initial determination: The first determination made by the Social Security Administration of a person?s eligibility for benefits. (Cases: Social Security and Public Welfare?…

2. The ending or expiration of an estate or interest in property, or of a right, power, or authority (the easement?s determination after four years) ? determine, vb.?

In Osborn?s Concise Law Dictionary, 12th edition, page 144 also defines ?determine? as ?(1) To come to an end; (2) to decide an issue or

appeal.? In Words and Phrases Legally Defined Vol. 2 (D-H) by John B. Saunders ?determination? and to ?determine? and their legal connotation are defined and supported by judicial reasoning from jurists of renown from Commonwealth countries which ought to guide learned Judges and Justices in Nigeria in the administration of law and justice in this century at pages 63-64 as follows:-

It is said that ?termination? and ?determination? do not mean the same thing; that ?termination? means the thing coming to its natural end; ?determination? means coming to what I may call a violent end, that is, an end which was not contemplated as the longest duration, such as coming to an end by an unexpected death. I do not think that this is either the popular or the legal distinction between the two terms. Supposing a term were created of fifty years, determinable at the death of ?A?, would it be legally inappropriate to say, that such term is determinable either by effluxion of time or by the death of ?A And as to the grammatical or popular use of the

term it is rather remarkable that, in Todd?s edition of Johnson?s Dictionary, the fourth sense given of the word ?determination? is ?expiration,? ? ?end?. And the lexicographer adds, ?Used only by lawyers; as, from and after the determination of the said lease.? The word ?determination? may properly, and according to legal as well as to ordinary use, signify the coming to an end in any way whatever. That appears to me to be the honest mode of construing the word.? St. Aubyn vs. St. Aubyn (1861), 1 Drew & Sm. 611, per Kindersley, V.-C., at pp. 618, 619.

?The words of the condition (in a bond) are, ?if the determination of the said action shall be in favour of the plaintiff,? etc. We are of opinion that, as there was at the commencement of this action a judgment in favour of the plaintiff, and there was no stay of execution on the judgment, such a state of things amounts to ?a determination? of the action in favour of the plaintiff within the meaning of the condition.

Where, as in this case, the plaintiff has obtained a

judgment in his favour, and is in a condition to enforce it by execution, the action, as far as he is concerned, may be properly said to be determined in his favour.? Burnaby vs. Earle (1874) L.R. 9 Q.B. 490, per Lush, J., at p.493.

?There is a ?con in Chapter 3 of the Income Tax Act, 1952, which relates to ?Appeals and Relief for Mistake? and comprises Section 50 to Section 66. Thus, in Section 50(2) there is the phrase ?An appeal, once determined by the commissioners, shall be final, and neither the determination of the commissioners nor the assessment made thereon shall be altered, except It is plain that there the words ?determined? and ?determination? are equivalent to: decided and decision, and are quite incapable of being understood to mean an assessment or the amount stated in an assessment.? Muir vs. Inland Revenue Commissioners, (1966) 3 All E.R. 38, C.A. per Winn, L.J. at p.48.

NEW ZEALAND ? ?Article 19 (of a partnership agreement) ? says: ?Upon the determination of the partnership the assets of the firm shall be

realized The word ?determination appears to me to be used for ?termination?, and usage shows that they are now used interchangeably.? Rushbrook vs. Bridgeman (1910), 29 N.Z.L.R. 1184, per Stout, C.J., at p.1189; also reported 13 G.L.R. 178, at p.180.

DETERMINE:

?I doubt whether it is correct to say that, where, under a settlement, a person, who has a right to appoint an annual sum to one of a number of persons as he may think fit, and duly makes such an appointment, he thereby ?determines? any provision of the settlement. Be that as it may, it is, I think, clear that in the section under consideration (Section 38(1)(a) of the Finance Act, 1938 (repealed; see now Section 38(1)(a) of the Income Tax Act, 1952, as amended by Section 21 of the Finance Act, 1958) the word is used in relation to the determination of a provision in a settlement ?by virtue or in consequence? whereof a sum of money is payable by the ?settlor or the wife or husband of the settlor?: and that the power to determine any other provision of a settlement does not bring it within the

provisions of Section 38(1)(a) at all. Assuming, however, that the respondent has power to appoint to himself as an employee of a company of which he is or has been a director, and assuming that by making that appointment he would determine all the provisions of the settlement in favour of the other possible beneficiaries, the result is that any sum payable by the respondent by virtue of, or in consequence of, the provisions of settlement so determined would be treated as his income. It seems, I think, clear that the words ?otherwise determine? mean the determination of a provision in the settlement whereby a sum of money becomes payable by the settlor, and nothing else.? Inland Revenue Commissioners vs. Dan Fitte (1942) 2 All E.R. 500, per Maccnaghten, J., at p.503.

?It was argued with ingenuity that an interest cannot determine until it has begun, and that an interest cannot begin until it takes effect in possession, and from these premises the conclusion was adduced that the interests which were to determine? must be only and exclusively interests in possession. In my judgment, no such inference can be drawn from the use

of the word ?determine.? There is one very good reason. By definition from the terms of the clause itself the interests which are to determine are all the interests of the son or daughter and his or her issue. They all determine uno flatu and at once. Obviously of those interests only one could be an interest in possession in any event; all the others must ex necessitate be interests in remainder or reversion. Therefore, if the use of the word ?determine? introduces any ambiguity of the kind suggested, the testatrix had made herself her own dictionary and showed that in her view, at all events, an interest in expectancy can ?determine?. If corroboration of that view be needed, some slight support is to be found in the provisions of the Finance Act, 1894, which contains an exemption from death duties with respect to certain expectant interests. Section 5(3) of that Act provides: ?In the case of settled property, where the interest of any person under the settlement fails or determines by reason of his death before it becomes an interest in possession, and subsection limitations under the settlement continue to subsist,

the property shall not be deemed to pass on his death.? There is thus, at all events, statutory authority, if authority be needed, for the view that an interest can be accurately described as ?determining? if it fails while it is yet reversionary in character.?Re Wilson?s Will Trusts, Tyron vs. Bromley-Wilson, (1950) 2 All E.R. 955, C.A., per Jenkins, L.J. at p.961.?

But when a Court of Justice has not put an end to a controversy that may or may not constitute a ?determination?. In Baba vs. Civil Aviation (1991) 6 SCNJ 1, Karibi-Whyte, JSC held at page 25 that: –

?The term determination in this con means reaching a decision. Where, as in this case, the body is merely exploring or investigating the facts with no intention or power to decide, there is, in my view, no determination. So, contrary to the submission of learned Counsel for the appellant, the question of fair hearing in terms of Section 33(1) of the Constitution, 1979 did not arise under the Affini Panel.?

Where the Court below has not determined the dispute, in legal parlance the resolution of the dispute will be regarded

as an ?interlocutory decision? and any party or a person interested in the outcome of the determination may appeal to the Court of Appeal by invoking the provisions of Sections 13-14 and 24 of the Court of Appeal Act, 2004 (As amended) which provides as follows:-

?13. This Part of this Act shall apply to the exercise of the jurisdiction of the Court of Appeal to hear appeals in civil causes or matters.

14(1) Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that Court or of the Court of Appeal, lies to the Court of Appeal; but no appeal shall lie from any order made ex parte, or by consent of the parties, or relating only to costs.

(2) Nothing in Subsection (1) of this section, shall be construed so as to authorize an application to the Court of Appeal in the first instance for leave to appeal from an interlocutory order or decision made in the course of any suit or matter brought in the High Court of a State or the Federal High Court.”

The time for appealing or seeking leave to appeal is provided under Section 24(1)-(4) of the Court of Appeal Act, 2004 (as amended) to wit:-

?24(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period prescribed by the provision of Subsection (2) of this section that is applicable to the case.

(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are:

(a) In an appeal in civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.

(b) In an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.

(3) Where an application for leave to appeal is made in the first instance to the Court below, a person making such application shall, in addition to the period prescribed by Subsection (2) of this section, be allowed a further period of fifteen days, from the date of the determination of the

application by the Court below, to make another application to the Court of Appeal.

(4) The Court of Appeal may extend the periods prescribed in Subsections (2) and (3) of this section.?

The proceedings were conducted by the parties before the High Court of Justice as a Court of first instance. The proceedings have not determined with finality the dispute between the parties hence they are interlocutory in nature. The appellant needed to have sought the leave of the Court below to appeal to this Court failing which the appellant would have proceeded to seek leave from the Court of Appeal. Time for seeking leave to appeal and filing the Notice of Appeal is provided in Section 24(1)-(2)(a) of the Court of Appeal Act, 2004 (As amended).?

The purpose of seeking leave of the Court below or of the Court of Appeal to appeal is to ensure that the appeal is not frivolous nor is it calculated to delay speedy trial of the matters in controversy. The failure of an appellant to seek leave to appeal against an interlocutory order or decision of the Federal High Court or a High Court of a State will render the Notice and Grounds of Appeal null and void ab initio. ?

Besides, this is to ensure that the Court of Appeal is not inundated with interlocutory matters that constitute an academic exercise. In Saraki vs. Kotoye (1992) 11-12 SCNJ (Pt.1) 26, where the Supreme Court held per Karibi-Whyte, JSC at page 46 paragraphs 5 to 10 as follows:

“I therefore agree completely with the construction of Section 227 of the Evidence Act by Mr. Ayanlaja that the exercise by the Court of Appeal of this statutory power becomes relevant at the determination of the appeal. It clearly has nothing to do with the exercise of a right of appeal conferred on the aggrieved. Concisely stated, the exercise of the power under Section 227(2) can only be with respect to a valid appeal before it. And this is after the valid exercise of a right of appeal under provisions of the Constitution and other enabling laws and rules of Court. In my opinion Section 227 of the Evidence Act is not concerned in any way with the exercise of the right to appeal. Learned Counsel for the appellants is wrong in his submission.”

In Saraki’s case, the Supreme Court held at page 51 paragraphs 23 to 39 of

the judgment as follows:

It is however, obvious that the determination of an application for stay of proceedings is a matter for the exercise of discretion which depends on the facts already before the Court. The exercise of a constitutional right of appeal is a question of law, based on the accepted facts. The right of appeal so granted cannot be limited by the considerations used in the exercise of discretion.

The Supreme Court also held at page 55 paragraphs 30 to page 56 paragraph 1 of the Saraki’s case (supra) as follows:

This is so because the Constitution provides for a right of appeal either with or without leave, from a decision of a lower Court to a higher Court. And Section 277 (1) of the Constitution defines decision thus: –

Decision means in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.

It appear to me therefore that when a High Court declines or refuses to accept evidence sought to be given or tendered at the trial, that is a determination and it is appealed regardless of the

stage of the trial itself.

As for the second issue raised in the appeal I fail to see how the defendant?s exercise of his right of appeal conferred by the Constitution of the land would amount to an abuse of the process of Court. It is certainly not.?

Order 2 Rules 3-15 of the Court of Appeal Rules, 2016 provides as follows: –

?3. Where in any proceeding in the Court below a party has given an address for service, notice of appeal from any decision made under such proceeding may be served on such party at such address for service, and notice of any application preparatory or incidental to any such appeal, may be served in like manner at any time before the date on which the Respondent gives notice of his address for service in accordance with the immediately following Rule.

4(1) Every person who by virtue of service on him of a notice of appeal becomes a Respondent to any appeal or intended appeal shall with in thirty days after service on him of the notice of appeal file twenty copies with the registrar of the Court below notice of a full and sufficient address for service in such number of copies as the said registrar

shall require. The registrar of the Court below shall forthwith send a copy of the notice of address to the Registrar and shall cause a copy thereof to be served on the Appellant.

(2) Such notice may be signed by the Respondent or his legal representative.

(3) If any Respondent fails or omits to file such notice of address for service, it shall not be necessary to serve on him any other proceeding in the appeal or any notice of hearing thereof.

5. Any reference in these Rules to an address for service means a physical or postal address within the Federal Republic of Nigeria or an electronic mail address or a facsimile number or telephone number or any other mode of communication as may become available to where notices and other processes, which are not required to be served personally, may be left or sent or posted or transmitted.

6. Where under these Rules, any notice or other process is required to have an address for service endorsed on it; it shall not be deemed to have been properly filed unless such address has been endorsed on it.

7. The Court may in any case direct that the notice of appeal be served on any party to the

proceedings in the Court below on whom it has not bee served, or on any person not party to those proceedings.

8. In any case in which the Court directs that the notice of appeal shall be served on any party or person, the Court may also direct that any Respondent’s notice shall be served on him.

9. The Court may in any appeal where it gives a direction under Rules 12 and 13 of this Order: –

(a) postpone or adjourn hearing of the appeal for such period and on such terms as may be just ; and

(b) give such judgment and make such order on the appeal as might have been given or made if the persons served in pursuance of the direction had originally been parties.

10. Where under these Rules any person has given an address for service, any notice or other process, which is not required to be served personally, shall be sufficiently served upon him if:

(a) left at that address, or

(b) serve by registered post to that address and in which case if the date of service by post is material, Section 26 of the Interpretation Act shall apply, or

telephone number or any other mode of electronic communication.

11. Any party to an appeal or intended appeal may change his address for service at any time, by filing and serving on all other parties to the appeal or intended appeal, notice of such change.

12. Any person desiring to change his address for service shall notify the Registrar and shall also communicate the new address to all other parties to the appeal.

13. Where any person has given the address of a Legal Practitioner as his address for service and the Legal Practitioner is not, or has ceased to be instructed by him for the purpose of the proceedings concerned, it shall be the duty of the Legal Practitioner to inform the Registrar as soon as may be practicable that he is not or no longer authorized to accept service on behalf of such person, and if he omits to do so he may be ordered to personally pay any costs occasioned thereby.

14. Where a Minister or Commissioner, or the Attorney-General, or the Director of Public Prosecutions, or any other public officer of the Federal Republic of Nigeria or of a State thereof is a party ex-officio or as representing the Federal or a

State Government, as the case may be, in any proceedings in the Court, whether civil or criminal, any notice or other document may be served on him by leaving it at or by sending it by registered post to his chambers or office and service in this manner shall be as effective as if it were personal service.

15. Where any document is required by these Rules to be served personally, it shall be sufficiently served if it is served in the manner prescribed by law for the personal service of a writ of summons issued by the High Court having jurisdiction in the State in which service is to be effected and if it appears to the Court that for any reason personal service cannot be conveniently effected, the Court shall have the same power as that High Court to direct that service be effected in some other way.?

There is nothing in the record of appeal showing that the appellant sought the leave of the lower Court or the Court of Appeal to appeal hence the Notice of Appeal being void ab initio is struck out under Order 7 Rule 6 of the Court of Appeal Rules, 2016 to wit:-

?6. The Court shall have the power to strike out a notice of appeal when

an appeal is not competent or for any other sufficient reason.?

In Erisi & Ors. vs. Idika & Ors. (1987) All NLR 529, Nnamani, JSC held at pages 536 to 537 as follows:

?There are a plethora of decisions of this Court, and this matter has almost become trite law, that an appeal to the Supreme Court from a decision of the Court of Appeal on the questions of fact or mixed law and fact in respect of which leave to appeal has not been obtained from the Court of Appeal or the Supreme Court is incompetent and would inevitably struck out. In such a case the Supreme Court would lack jurisdiction to entertain such an appeal. If it was necessary to mention an authority, I would refer to Akiwiwu Motors Ltd. (supra). There Obaseki, JSC put it clearly when he said at page 186:

?This Court has, in a series of cases, decided that where grounds of appeal involve questions of mixed law and facts, leave of the Court of Appeal or the Supreme Court must be obtained to make the appeal competent and invest the Supreme Court with jurisdiction to hear the appeal.?

See Ojemen vs. Momodu III (1983) 3 SC 173; Oke vs. Eke (1982) 12 SC 228;

Akpasubi vs. Umweni (1982) II SC 132. Similar opinions were expressed by Bello, JSC (as he then was), Eso, Aniagolu and Nnamani, JJSC.?

Nnamani, JSC concluded at page 539:

?On the fact of the two Rules of this Court, it would seem as if there was indeed and appeal pending in this Court but this is not so. As previously mentioned, the grounds of appeal in the ?purported? notice of appeal filed by defendants on 28th February, 1986 raised questions of mixed law and fact, and as no leave was obtained prior to their filing, they, remained no more than mere documents. They were not notice and grounds of appeal within the meaning of Order 2, Rule 20 and Order 8, Rule 2, Supreme Court Rules,1985. They acquired that statute after the Court of Appeal orders on 25th March, 1986. It follows that there was prior to 25th March, 1986 no appeal by the defendants pending in this Court. The Court of Appeal did not therefore traverse into matters exclusively within the jurisdiction of this Court.?

The issue of the incompetence of the Notice of Appeal can be raised suo motu by the Court without inviting the parties of their legal

representatives for an address, so held the Supreme Court in Tukur vs. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 at 557. The appellant did not comply with the Rules of Practice and Procedure applicable in the Court below for having a suit struck out on a point of law such as lack of jurisdiction and neither did the appellant seeks and was granted leave in the Court below nor in the Court of Appeal to initiate the appeal proceedings. The preliminary objection filed in the Court below and in this Notice of Appeal filed in this Court are hereby struck out. There is no appeal pending before this Court. In Maxwell on the Interpretation of Statutes by P. St. J. Langan, 12th edition, page 320 the learned author has written that:-

?Rules of Procedure:

Enactments regulating the procedure in Courts are usually construe as imperative, even where the observance of the formalities in question is not a condition exacted from the party seeking the benefit of the statute, but a duty imposed on a Court or public officer when no general inconvenience or injustice seems to call for a different construction.

Thus, the statute 5 Elizabeth 1, c.

23, requiring that the Writ de contumace capiendo should be brought into the Queen?s Bench and there opened in the presence of the judges, the omission of this apparently idle ceremony was deemed fatal to the validity of an arrest made in pursuance of the writ, even though it had been enrolled in the Crown Office.

An enactment which provided that every warrant issued by a Court should be under its seal was equally imperative. Not only was a commitment under an unsealed warrant invalid (even though it was signed by a judge) but the person who had obtained it without taking care that that the Court performed the duty of sealing it was held liable in damages to the person arrested under it.?

The learned author again held at page 321 as follows:

?Notwithstanding that the Rules of the Supreme Court provide that non-compliance with the Rules shall not render proceedings void unless the Court so directs, in several cases it has been held that a defect in following the procedure laid down by the Rules may be so grave that it renders the entire proceedings a nullity, not curable by any order of the Court.?

At page 329, in

Maxwell appears the following passage:

?The regulations governing the practice and procedure of civil Courts may in the same way, when not going to the jurisdiction, be waived by those for whose protection they were intended.

Thus, in a case under the County Courts Act, 1850, Section 14, which gave an appeal from a County Court provided that the appellant, within ten days, gave notice of appeal and security for costs, and (by Section 16) enacted that no judgment of a County Court Judge should be removed into any other Court except in the manner so laid down, it was held that want of due notice and security might be waived. The provision was intended for the benefit of the respondent, and was not a matter of public concern.

Similarly, where a statute required justices to make known to a party his right of appeal and the steps necessary to carry out this right, it was held that the party might waive this provision; and he did so by declaring that he did not intend to appeal.?

Motract Global Networks Limited initiated the proceedings before the High Court of Justice, Nasarawa State at Lafia as the ?plaintiff? by a

Writ of Summons on 4th February, 2011, the defendant being XingJiang Power Transmission and Transformation Co. T.T. Hyundu, Esq., initiated the proceedings on behalf of the plaintiff. Page 4 of the printed record shows the addresses for service of the processes to be within jurisdiction as follows:-

?1. The plaintiff is a Limited Liability Company duly incorporated under the laws of Nigeria and having her office at Lafia within jurisdiction.

2. The defendant is also a Limited Liability Company having her office in Lafia also within the jurisdiction of this Honourable Court.?

Page 9 of the printed record contains the following information:

?T.T. Hyundu, Esq.

(Plaintiff?s Counsel)

PP: Imbwaseh, Kenen, Hyundu & Associates,

64 Old Otukpo Road,

High Level, Makurdi.

WHOSE ADDRESS FOR SERVICE WITHIN JURISDICTION IS:

C/O Amuwa Olatunde & Co.

Fatima House,

No.30, Jos Road,

Lafia.

FOR SERVICE OF THE DEFENDANT

Beside City Hall,

Shendam Road,

Lafia.?

Pages 10-11 of the printed record contains a ?List of Documents Pleaded? by the

plaintiff to be made use of at the hearing of the dispute. Paragraphs 1-20 of the statement of claim pleaded as follows:-

?1. The plaintiff is a Limited Liability Company duly incorporated under the laws of Nigeria and having her office at Lafia within jurisdiction.

2. The defendant is also a Limited Liability Company having her office in Lafia also within the jurisdiction of this Honourable Court.

3. The plaintiff avers that the defendant was awarded the contract for the electrification/erection of electric power towers from Benue State through Nasarawa State to Plateau State by the Federal Government of Nigeria.

4. On or about the 8th day of September, 2010, the defendant sub-contracted some components of the main contract to the plaintiff vide an agreement dated about the same date. The agreement is pleaded and will be founded upon at the trial.

5. By a letter dated 14th day of September, 2010, the defendant again awarded the contract on civil work and the plaintiff was requested to submit a work program within 7 days. The letter is also pleaded and will be relied upon at the trial to its full term and effect.

6. The

plaintiff avers and will contend at the trial of this suit that she faithfully kept to the terms of the agreement by not only executing the contract but also rendering monthly reports but the defendant failed and/or neglected to issue monthly completion certificate and pay the plaintiff for work done.

7. As a consequence of the fact above pleaded, the plaintiff wrote letter dated 3rd November, 2010 demanding for payment for work done. The letter is also pleaded.

8. When the defendant did not respond, the plaintiff briefed his then solicitors, Messrs S.K. Sheltu & Co. who vide their letter dated 13th October, 2010 with reference No.SK/MOTRACK/XPT/VOL.4/2010 demanded for payment for the work so far executed. The letter is pleaded.

9. The plaintiff avers that the defendant did not respond to the above letter and another reminder letter dated 14th November, 2010 was written to the defendant. The letter is pleaded.

10. The plaintiff again wrote a reminder letter dated 18th November, 2010 which was received by the defendant but ignored. The letter is pleaded and will be founded upon at the trial.

11. By yet another letter dated the

20th day of December, 2010 written by S.K. Sheltu & Co., the defendant was issued 2-day ultimatum to pay up the tabulated sum of money owed the plaintiff. The plaintiff pleads and shall rely on this letter.

12. Upon pressure mounted by the plaintiff the defendant agreed to collaborate with her in order to verify the plaintiff?s various claims with the view to paying same.

13. The plaintiff states that on the agreed date, the defendant?s officers chased away the plaintiff?s workers and forcefully took over the site and materials for the execution of the contract aforesaid in total disregard to the earlier agreement with the plaintiff.

14. Consequent upon the above, the plaintiff caused a direct criminal complaint to be lodged at the Upper Area Court, Nasarawa Eggon in case No.UACCNE/CR/10. The defendant?s officers were consequently arrested and remanded.

15. At the behest of the defendant, the Emir of Lafia intervened and sought to mediate over the matter. At the conclusion of the mediation, the defendant was ordered to pay to the plaintiff the outstanding sum owed her. The defendant was only able to pay the

sum of N5,191,063.00 (Five Million One Hundred and Ninety One Thousand Sixty Three Naira) only which was acknowledged by the plaintiff?s Managing Director, Engr. Moses Utondo. The document is hereby pleaded.

16. Furthermore, the committee set up by the Emirate Council to verify the plaintiff?s claim found that the defendant has in actual fact taken possession of the plaintiff?s materials. The report is hereby pleaded.

17. Consequently, the defendant wrote to the plaintiff dated 16th October, 2010 terminating the contract. The letter is pleaded.

18. Upon the receipt of the letter aforesaid, the plaintiff vide letter dated 14th November, 2010 demanded for payment for jobs completed and a return of materials which were forcefully taken away. The letter is pleaded and will be founded upon at the trial.

19. The plaintiff avers and will vehemently contend at the trial that the materials mentioned in the said letter are worth a total sum of N12,556,500.00 (Twelve Million Five Hundred and Fifty Six Thousand Five Hundred Naira) only. The document dated 2nd November, 2010 tabulating the cost of materials is hereby pleaded.

20. WHEREOF, the plaintiff is aggrieved and claims the following:

(a) SPECIAL DAMAGES:

PARTICULARS OF SPECIAL DAMAGES

1. N8,558,750.00 (Eight Million Five Hundred and Fifty Eight Thousand Seven Hundred and Fifty Naira) only being outstanding payment for the following foundations for the month of September, 2010: 240 ? 275.

2. N3,086,250.00 (Three Million Eighty Six Thousand Two Hundred and Fifty Nair) only for the following foundations in the month of October, 2010: 235, 236, 237, 238, 239, 276, 277, 278 and 279.

3. N4,215,000.00 (Four Million Two Hundred and Fifteen Thousand Naira) only being outstanding payment for the full completion of work on the following foundations for the month of November, 2010: 221, 223, 224, 228, 229, 230, 232, 233 and 234.

4. N430,000.00 (Four Hundred and Thirty Thousand Naira) only being outstanding payment for the full completion of lean concrete work (binding) for 43 sites between the months of September, 2010. (LESS N5,191,063.00 (See paragraph 15 of the claim above).

GRAND TOTAL N11,098,937.00 (Eleven Million, Ninety Eight Thousand, Nine Hundred and Thirty Seven Naira) only.

(b) A mandatory order of injunction directing the defendant whether by itself, its servants, agents, and/or privies howsoever described to return the materials pleaded in paragraph 19 of this claim.

OR IN THE ALTERNATIVE, THE SUM OF:

N12,556,500.00 (Twelve Million Five Hundred and Fifty Six Thousand Five Hundred Naira) only being the cost of material?.

GRAND TOTAL N21,475,587.00 (Twenty One Million Four Hundred and Seventy Five Thousand Five Hundred and Eighty Seven Naira) only.

S.A. Ayiwulu, Esq., of learned Counsel entered a ?Conditional Memorandum of Appearance for the defendant in this suit? at pages 63-64 of the printed record as follows:-

?The Registrar,

High Court No.2,

Lafia

Sir,

CONDITIONAL MEMORANDUM OF APPEARANCE

KINDLY CAUSE a conditional appearance to be entered for the defendant in this suit.

Dated this 11th day of March, 2011.

SGD

S.A. Ayiwulu, Esq.

S.A. Ayiwulu & Co.

Defendant?s Counsel

Foundation Chambers

No.115, Makurdi Road,

Lafia, Nasarawa State.?

Xingjiang Power Transmission and Transformation Engineering Co. is described by S.A. Ayiwulu, Esq. as appearing for the defendant in this suit?. S.A. Ayiwulu, Esq., further described himself in the conditional memorandum of appearance as ?defendant?s Counsel At Pages 65-67 of the printed record is to be found a ?Notice of Preliminary Objection by the Defendant? in the following manner:-

?TAKE NOTICE that the defendant shall at the hearing of this suit raise a preliminary objection on the following grounds:

1. That the defendant is not a juristic person and cannot sue and be sued by the plaintiff or any body.

2. The defendant is not a registered limited liability company and has no capacity to enter into contract with the plaintiff or any body.

3. That the defendant is not a juristic personality and cannot sue and be sued by the plaintiff or any body in the Court of law.

4. The plaintiff?s suit or action is incompetent and the Honourable Court lacks the jurisdiction to hear and determine same.

?5. That the plaintiff?s action lacks competence and the Honourable Court

is robbed of jurisdiction to hear the case and the defendant shall at the hearing urge the Honourable Court to strike out or dismiss the suit for lack of jurisdiction.

6. That the defendant lacks the competence to enter into any contractual agreement for lack of incorporation of the defendant as a limited liability company.

PARTICULARS OF OBJECTION:

(a) That the plaintiff has sued the defendant who is a non-juristic person claiming reliefs based on alleged contractual agreement.

(b) That the defendant has not been registered or incorporated as a limited liability company at the Corporate Affair Commission.

(c) That this action is not maintainable by the plaintiff against the defendant for lack of legal capacity to sue and be sued by the plaintiff or any body.

(d) That the defendant is not legal entity and cannot sue and be sued.

(e) That the defendant is not a proper defendant to be sued in this action.

RELIEF SOUGHT:

An order of this Honourable Court striking out or dismissing this suit for lack of jurisdiction by this Honourable Court.

FURTHER TAKE NOTICE that the defendant shall at the hearing of this

preliminary objection rely on all the processes filed before this Honourable Court and the affidavit attached to this notice of preliminary objection.?

The grounds for the preliminary objection addresses ?Xingjiang Power Transmission and Transformation Engineering Co.? as ?the defendant?. Paragraphs (a)-(e) of the preliminary objection again refers to defendant ?Xingjiang Power Transmission and Transformation Engineering Co.? as ?the defendant? and S.A. Ayiwulu, Esq. as ?defendant?s Counsel? at page 68 of the printed record.

The sworn affidavit of Gift Chukwu, Litigation Secretary in the Chambers of S.A. Ayiwulu, Esq., of 11th April, 2011 at page 68-70 of the printed record relies on the following facts:-

?1. That I am the Litigation Secretary in the Law Firm of S.A. Ayiwulu & Co.; Foundation Chambers, No.115, Makurdi Road, Lafia, Nasarawa State and by virtue of my position I am conversant with the facts deposed to this affidavit.

2. That I have the authority and consent of the defendant and my employer to depose to this affidavit.

3. That I am informed

by S.A. Ayiwulu, Esq., of Counsel handling this matter for the defendant in my working place at No.115 Road, Lafia on the 7th April, 2011 at about 2pm and I verily believe him to be true as follows:-

(a) That the plaintiff is a registered Limited Liability Company with its office in Lafia town.

(b) That the defendant is not a juristic person and cannot sue and be sued by the plaintiff or any body.

(c) The defendant is not a registered Limited Liability Company and has no capacity to enter into contract with the plaintiff or any body.

(d) That the defendant is not a juristic personality and cannot sue and be sued by the plaintiff or any body in the Court of law.

(e) The plaintiff?s suit or action is incompetent and the Honourable Court lacks the jurisdiction to hear and determine same.

(f) That the plaintiff?s action lacks competence and the Honourable Court is robbed of jurisdiction to hear the case and the defendant shall at the hearing urge the Honourable Court to strike out or dismiss the suit for lack of jurisdiction.

(g) That the defendant lacks the competence to enter into any contractual agreement for lack

of incorporation of the defendant as a Limited Liability Company.

(h) That the plaintiff has sued the defendant who is a non-juristic person claiming reliefs based on alleged contractual agreement.

(i) That the defendant has not been registered or incorporated as a Limited Liability Company at the Corporate Affairs Commission.

(j) That this action is not maintainable by the plaintiff against the defendant for lack of legal capacity to sue and be sued by the plaintiff or any body.

(k) That the defendant is not legal entity and cannot sue and be sued.

(l) That the defendant is not a proper defendant to be sued in this case.

(m) That the Honourable Court lacks the jurisdiction to hear and determine this action.

4. That it will be in the interest of justice to grant this preliminary objection.

5. That I swear to this affidavit in good faith believing its contents to be true and correct to the best of my knowledge, information, belief and in accordance with the Oaths Act, 1990.?

One may pause and ask this pertinent question: who is the ?defendant? in this proceeding in the Court below? The answer

is simple and straight forward. Xingjiang Power Transmission and Transformation Engineering is not only tagged as a ?Co.? but is the ?defendant? in the proceedings initiated by the plaintiff in the High Court of Justice, Nasarawa State.

Section 21(1)(a)-(c) of the Companies and Allied Matters Act, 1990 reads as follows:-

?21(1) An incorporated company may be a company:

(a) Having the liability of its members limited by the memorandum to the amount, if any, unpaid on the shares respectively held by them (in this Act termed “a company limited by shares”); or

(b) Having the liability of its members limited by the memorandum to such amount as the members may respectively thereby undertake to contribute to the assets of the company in the event of its being wound up (in this Act termed “a company limited by guarantee”); or

The appellant?s name has at its end ?Co.? meaning in legal parlance ?company? or ?corporation?. Sections 18-19(1)-(3) of the Act

provides that:-

?18. As from the commencement of this Act, any two or more persons may form and incorporate a company by complying with the requirements of this Act in respect of registration of such company.

19(1) No company, association, or partnership consisting of more than 20 persons shall be formed for the purpose of carrying on any business for profit or gain by the company, association, or partnership, or by the individual members thereof, unless it is registered as a company under this Act, or is formed in pursuance of some other enactment in force in Nigeria.

(2) Nothing in this section shall apply to?

(a) any co?operative society registered under the provisions of any enactment in force m Nigeria; or

(b) any partnership for the purpose of carrying on practice

(i) as legal practitioners, by persons each of whom is a legal practitioner; or

(ii) as accountants by persons each of whom is entitled by law to practise as an accountant.

(3) If at any time the number of members of a company, association or partnership exceeds 20 in contravention of this section and it carries on business for more than 14 days

while the contravention continues, every person who is a member of the company, association or partnership during the time that it so carries on business after those 14 days shall be liable to a fine of N25 for every day during which the default continues.?

Section 35(1)-(3) and 39(1)-(5) of the Act further provides that:-

?35(1) As from the commencement of this Act, a company shall be formed in the manner set out in this section.

(2) There shall be delivered to the Commission?

(a) the memorandum of association and articles of association complying with the provisions of this Part of this Act;

(b) the notice of the address of the registered office of the company and the head office if different from the registered office:

Provided that a postal box address or a private bag address shall not be accepted by the Commission as the registered office;

(c) a statement in the prescribed form containing the list and particulars together with the consent of the persons who are to be the first directors of the company;

(d) a statement of the authorized share capital signed by at least one director; and

(e) any

other document required by the Commission to satisfy the requirements of any law relating to the formation of a company.

(3) A statutory declaration in the prescribed form by a legal practitioner that those requirements of this Act for the registration of a company have been complied with shall be produced to the Commission, and it may accept such a declaration as sufficient evidence of compliance:

Provided that where the Commission refuses a declaration, it shall within 30 days of the date of receipt of the declaration send to the declarant a notice of its refusal giving the grounds of such refusal.

xxxxxx

39(1) A company shall not carry on any business not authorized by its memorandum and shall not exceed the powers conferred upon it by its memorandum or this Act.

(2) A breach of Subsection (1) of this section, may be asserted in any proceedings under Sections 300 to 313 of this Act or under Subsection (4) of this section.?

The legal effect of incorporation of a company under the Act is stated by Jide Olakanmi in Companies and Allied Matters Act, 2004 & Investments & Securities Act, 2007 under the title

?Synoptic Guide? 2nd edition, page 6 and page 11:-

?The direct consequences of incorporation is that a registered company is hereby conferred with the privileges of corporate personality. The fundamental attribute of corporate personality is that the company is a legal entity distinct from its members. Hence it is capable of enjoying rights and being subject to duties which are not the same as those enjoyed or borne by its members. In other words, it has ?legal personality?. It is a legal creation, an ?artificial person? as opposed to a ?natural person?. It is capable of suing and being sued in its corporate name.

The most important illustration of the implications of this concept is seen in the celebrated case of Salomon vs. Salomon & Co.

Mr. Salomon had, for many years, carried on a prosperous business as a leather merchant. In 1892, he decided to convert it into a limited company and so formed ?Salomon & Co. Ltd.? With Salomon, his wife and five children as members and Salomon as managing director. The company purchased Salomon?s leather business as a going

concern for 39,000pounds the price being satisfied by 10,000pounds in debentures, conferring a charge on all the company?s assets, 20,000pound in fully paid 1pound shares and the balance in cash. Seven shares were subscribed in cash by the members with the result that Salomon held 20,001 of the 20,007 shares issued, and each of the remaining six were held by a member of his family as a nominee for him. Barely a year later, the company went into liquidation. The assets were sufficient to satisfy the debenture but the unsecured creditors with debts amounting to 7,000pounds received nothing. The liquidator instituted an action on behalf of the creditors against Salomon to indemnify the company. That, the company had been validly formed, hence the business belonged to it and not to Salomon, and Salomon was merely the company?s agent. The Court established that the company is a different person altogether from the subscribers. See also Section 37 C.A.M.A.?

?An unincorporated association is not a legal person. Unlike a company, it can neither sue nor be sued in its own name, but its members may sue or be sued on its behalf. In

Nigerian Bar Association vs. Gani Fawehinmi, the N.B.A. passed a resolution to have the name of the respondent entered in the ‘Roll of Dishonours’, for appearing before the Special Military Tribunal set up in 1984 to try political offenders. The respondent sued NBA to have the order declared null, void and unconstitutional. The NBA argued that, not being a juristic person but a juridical person, it could neither sue nor be sued in its own name. The Court held that the NBA is an unincorporated association. That although it is a separate entity from its member, it is not a separate legal entity, as such it cannot be sued in its own name. That the NBA has juridical personality but not a juristic personality.”

A Company and a Corporation are defined in Black’s Law Dictionary (ante) at page 318 and 391 to wit:-

Company: 1. A corporation or, less commonly, an association, partnership, or union that carries on a commercial or industrial enterprise. 2. A corporation, partnership, association, joint-stock company, trust, fund, or organized group of persons,

whether incorporated or not, and (in an official capacity) any receiver, trustee in bankruptcy, or similar official, or liquidating agent, for any of the foregoing. Investment Company Act paragraph 2(a)(8) (15 USCA paragraph 80a-2(a)(8)).?

?Corporation: An entity (usually a business) having authority under law to act as a single person distinct from the shareholders who own it and having right to issue stock and exist indefinitely; a group or succession of persons established in accordance with legal rules into a legal or juristic person that has a legal personality distinct from the natural persons who make it up, exists indefinitely apart from them, and has the legal powers that its Constitution gives it. ? Also termed corporation aggregate; aggregate corporation; body corporate; corporate body. SEE COMPANY (Cases: Corporations, 1):

?A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law? It possesses only those properties which the charter of its creation confers upon it.? Trustees of Dartmouth College vs. Woodward, 17 U.S. (4 Wheat.) 518, 636 (1819) (Marshall, J.).”

At no time has the appellant disputed in a statement of defence that she is not a ?company? though ?Co.? has been incorporated in its name by the respondent in its processes filed in the Court below and in the Court of Appeal. Neither has the appellant filed a statement of defence denying she is not ?the defendant? whose names has appeared in the processes filed in the Court below and in this Court. There is nothing in the processes filed in the Court below and in this Court to show that the appellant does not carry on the kind of businesses or contracts pleaded in the respondent?s statement of claim. The appellant?s Solicitor filed processes showing that they are the appellant?s legal representatives in accordance with the provisions of Section 30 of the Court of Appeal Act, 2004 (as amended) which defines an ?appellant? in the following words:-

?30. In this Act, unless the con otherwise requires:-

Appellant? means any person who desires to appeal or appeals from a decision of the Court below or who applies for leave to so appeal, and includes a legal

practitioner representing such a person in that behalf.

Order 1 Rule 5 of the Court of Appeal Rules, 2016 also defines an appellant as:-

5. In these Rules, unless it is otherwise expressly provided or required by the con:-

Appellant means any person who appeals from a decision of the Court below and includes a Legal Practitioner representing such a person in that behalf.

The phrase ‘any person who desires to appeal from a decision of the Court below and includes a legal practitioner representing such a person in that behalf’ has a legal meaning under Section 18(1) of the Interpretation Act Cap. 123 Laws of the Federation of Nigeria, 2004 to wit:-

18(1) In an enactment, the following expressions have the meanings hereby assigned to them respectively, that is to say-

Legal practitioner has the meaning assigned to it by the Legal Practitioners Act;

Person includes any body of persons corporate or unincorporate.”

The appellant is not a natural person or personality. A person is 1.

A human being. Also termed natural person Black’s Law Dictionary (ante) page 1257. An artificial person is defined at page 1258 as follows:-

Artificial person:- An entity, such as a corporation, created by law and given certain legal rights and duties of a human being; a being, real or imaginary, who for the purpose of legal reasoning is treated more or less as a human being. An entity is a person for purposes of the Due Process and Equal Protection Clauses but is not a citizen for purposes of the Privileges and Immunities Clauses in Article IV paragraph 2 and in the Fourteen Amendment. Also termed fictitious person; juristic person,; juridical person; legal person; moral person. Cf. LEGAL ENTITY. (Cases: Corporations, 1.1(2)).

Section 145(1)-(3) and 169 of the Evidence Act, 2011 provides as follows:-

145(1) Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved unless and until it is disproved, or may call for proof of it.

(2) Whenever it is directed by this Act that the Court shall presume a fact, it shall

regard such fact as proved unless and until it is disproved.

(3) When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved and shall not allow evidence to be given for the purpose of disproving it.”

xxxxxxx

169. When one person has either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representatives in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.

The appellant could have filed a statement of defence and frontloaded the Memorandum or Articles of Association or the Certificate of Incorporation showing the status of the appellant as a company namely, that it is an incorporation or a company or not. To portray the appellant as the defendant and learned Counsel as representing the

defendant? in the Court below and in this Court estops the ?appellant? as defined in Order 1 Rule 5 of the Court of Appeal Rules, 2016 and Section 30 of the Court of Appeal Act, 2004 (as amended) from denying the fact that the appellant lacks the ?legal capacity to sue and be sued by the plaintiff or anybody? or that the appellant ?is not a legal entity and cannot sue and be sued? in paragraph (c) and (d) of the particulars of objection.

Paragraph (e) of the particulars of objection, it is the contention that ?The defendant is not a proper defendant to be sued in this case? without naming the proper defendant who should have been sued by the plaintiff/respondent in this case.? The appellant gave notice in the preliminary objection as follows: ?Further Take Notice that the defendant shall at the hearing of this preliminary objection rely on the processes filed before this Honourable Court and the affidavit attached to this notice of preliminary objection,? nevertheless, not a single document was filed or referred to in the affidavit of Gift Chukwu, Litigation Secretary in the

Law Firm of S.A. Ayiwulu & Co. of ?the learned Counsel handling this matter for the defendant? and I verily believe him to be true.?

In my humble opinion the burden of proving that the appellant is not a registered corporation or a company hence is not a juristic personality that can sue or be sued in its corporate or registered name shifted to the appellant under the provisions of Section 136 of the Evidence Act, 2011:-

?136(1) The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other.

(2) In considering the amount of evidence necessary to shift the burden of proof regard shall be had by the Court to the opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties respectively.

The legislature has provided a guideline as how to determine when the burden of proof has shifted to the opposing party under Section 136(2) and 138 of the Evidence Act, 2011:-

?(2) In considering the amount of evidence necessary to shift the burden of proof regard shall be had by the Court to the opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties respectively.?

Documentary evidence is usually resorted to in order to test the veracity of the facts deposed in an affidavit. This enables the Court to evaluate the oral evidence deposed or sworn in an affidavit. The appellant?s contention is that she is not a ?juristic person? or ?juristic personality? that can sue or be sued in the corporate name. A ?jurist?, ?juristic? and ?juristic person? or ?person? are defined at pages 933 and 1257 in Black?s Law Dictionary, 9th edition as follows:-

?Jurist:- 1. A person who has thorough knowledge of the law; especially, a judge or an eminent legal scholar. ? Also termed legist. 2. JURISPRUDENT.

?Juristic:- 1. Of or relating to a jurist (juristic literature). 2. Of or relating to law (a corporation is a typical example of a juristic person).

? Also termed juristical.

?Juristic person:- See artificial person under PERSON (3).

?Person:- 1. A human being. ? Also termed natural person.?

The certificate of incorporation of a company is the best manner of proving the legal entity of a plaintiff or a defendant.

The principles for establishing the jurisdiction of a Court of Justices and the capacity to adjudicate in any civil cause or matter in controversy was laid down by the Supreme Court in Madukolu vs. Nkemdilim (1962) 1 All NLR (Pt.2) 587 where Bairamian, JSC held at pages 589-590:-

?Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a Court. Put briefly, a Court is competent when: –

?(1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and

(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and

(3) the case comes before the Court initiated by due

process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication.

If the Court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial; the argument will be that the irregularity was so grave as to affect the fairness of the trial and the soundness of the adjudication. It may turn out that the party complaining was to blame, or had acquiesced in the irregularity; or that it was trivial; in which case the appeal Court may not think fit to set aside the judgment. A defect in procedure is not always fatal.?

The same principles were reiterated by the Supreme Court in Adeigbe & Anor. vs. Kusimo & Ors. (1965) NMLR 284 at 287. But in Mostyn vs. Fabrigas (1775-1802) All E.R. Rep. 266, Lord Mansfield, C.J. held at page 269:-

?In every plea to the jurisdiction, you must state another jurisdiction. Therefore, if an action is brought here for a matter arising in Wales to bar the

remedy sought in this Court, you must show the jurisdiction of the Court of Wales. In every case to repel the jurisdiction of the King?s Court, you must show a more proper and more sufficient jurisdiction, for, if there is no other mode of trial, that alone will give the King?s Courts a jurisdiction. In this case no other jurisdiction is shown, even so much as in argument. If the King?s Courts of justice cannot hold plea in such case, no other Court can do it. For it is truly said that a governor is in the nature of a viceroy, and, therefore, locally during his government no civil or criminal action will lie against him. The reason is because on process he would be subject to imprisonment. But here, the injury is said to have happened in the Arraval of St. Philip?s, where without his leave no jurisdiction can exist. If that be so, there can be no remedy whatsoever if it is no in the King?s Courts because when he is out of the government and is returned with his property into this country there are not even his effects left in the island to be attached.

Another very strong reason would alone be decisive, and it is that, thought

the charge brought against him is for a civil injury, yet it is likewise of a criminal nature, because it is in abuse of the authority delegated to him by the King?s letters patent, under the Great Seal. If everything committed within a dominion is triable by the Courts within that dominion, yet the effect or extent of the King?s letters patent, which gave the authority, can only be tried in the King?s Courts, for no question concerning the seignory can be tried within the seignory itself. Therefore, where the question respecting the seignory arises in the proprietary governments, or between two provinces of America, or in the Isle of Man, it is cognizable by the King?s Courts in England only. In the case of the Isle Man (4 Co. INST. 284) it was so decided in the time of Queen Elizabeth, by the Chief Justice and many of the judges. So that emphatically the governor must be tried in England to see whether he has exercised the authority delegated to him by the letters patent legally and properly or whether he has abused it in violation of the laws of England and the trust so reposed in him.

It does not follow that, let the cause of

action arise where it may, a man is not entitled to make use of every justification his case will admit of, which ought to be a defence to him. If he has acted right according to the authority with which he is invested, he must lay it before the Court by way of plea, and the Court will exercise their judgment whether it is a sufficient justification or not. In this case, if the justification had been proved, the Court might have considered it as a sufficient answer, and, if the nature of the case would have allowed of it, might have adjudged that the raising a mutiny was a good ground for such a summary proceeding. I can conceive cases in time of war in which a governor would be justified, though he acted very arbitrarily, in which he could not be justified in time of peace. Suppose, during a siege or on an invasion of Minorca the governor should judge it proper to send a hundred of the inhabitants out of the island from motives of real and genuine expediency, or suppose on a general suspicion he should take people up as spies, on proper circumstances laid before the Court it would be very fit to see whether he had acted as the governor of a garrison ought

according to the circumstances of the case. But it is objected, supposing the defendant to have acted as the Spanish governor was empowered to do before, how is it to be known here that by the laws and Constitution of Spain he was authorized so to act. The way of knowing foreign laws is by admitting them to be proved as facts, and the Court must assist the jury in ascertaining what the law is. For instance, if there is a French settlement the construction of which depends on the custom of Paris, witnesses must be received to explain what the custom is, as evidence is received of customs in respect of trade. There is a case of the kind I have just stated: Feaubert vs. Turst (1). So in the supreme resort before the King in Council, the Privy Council determines all cases that arise in the plantations, in Gibraltar, or Minorca, in Jersey, or Guernsey, and they inform themselves, by having the law stated to them.?

In other words, a defendant who objects that a Court of Justice and Equity has no jurisdiction to entertain a civil or criminal cause or matter in a particular case, has to do more by showing which Court has the requisite jurisdiction or

competence to adjudicate and this will be dependent on the facts and circumstances of each case. The defendant may also have to show who is the proper defendant to have been sued in the suit. The respondent pleaded copious facts showing that she is a sub-contractor with the appellant and front loaded series of documents which are listed at pages 10-11 of the printed record of appeal to wit:-

?LIST OF DOCUMENTS PLEADED:

1. Agreement between defendant and plaintiff made on the 8th day of September, 2010.

2. Letter from the defendant to the plaintiff dated 14th September, 2010.

3. Letter from plaintiff?s Solicitors dated 13th October, 2010.

4. Letter from the plaintiff to the defendant dated 3rd November, 2010.

5. Letter from the plaintiff to the defendant dated 18th November, 2010.

6. Letter from the plaintiff to the defendant dated 15th November, 2010.

7. Letter from the plaintiff to the defendant dated 14th December, 2010.

8. Letter from plaintiff?s Solicitor dated 20th December, 2010.

9. Document made on 1st November acknowledging receipt of the sum of N5,191,063.00.

10. Letter from

defendant to plaintiff dated 16th October, 2010.

11. Lafia Emirate?s Council Committee Report.

12. Document dated 4th November, 2010 tabulating the cost of materials.?

Order 3 Rules 1-3 of the High Court of Nasarawa State (Civil Procedure) Rules, 2010 reads:-

?1. Subject to the provisions of these rules or any applicable law requiring any proceedings to be begun otherwise than by writ, a writ of summons shall be the form of commencing all proceedings:

(a) where a plaintiff claims:

(i) any relief or remedy for any civil wrong or

(ii) damages for breach of duty, whether contractual, statutory or otherwise, or

(iii) damages for personal injuries to or wrongful death of any person, or in respect of damage or injury to any person, or property.

(b) Where the claim is based on or includes an allegation of fraud, or

2(1) All civil proceedings commenced by writ of summons shall be accompanied by:

(a) statement(s) of claim;

(b) list of witness(es) to be called at the trial;

witness(es) and

(d) copies of every document to be relied on at the trial.

(2) where a plaintiff fails to comply with Rule 2 (1) above, the originating process shall not be accepted for filing by the registry.

3. Except in the cases in which any different forms are provided in these Rules, the writ of summons shall be as in form 1 with such modifications or variations as circumstances may require.?

Order 13 Rules 1-3 of the Rules provides:-

?1(1) A defendant served with an originating process shall, within the period prescribed in the process for appearance, file in the registry the original and copies of a duly completed and signed memorandum of appearance as in Form 13 with such modifications or variations as circumstances may require.

(2) On receipt of the memorandum of appearance, the Registrar shall make entry thereof and stamp the copy with the seal showing the date he received it and return the sealed copy to the person making the appearance.

(3) A defendant entering appearance in person shall not later than 5 Days thereafter serve through the High Court Registry, a sealed copy of the memorandum of

appearance on a plaintiff?s Legal Practitioner or on the plaintiff if he sues in person.

2(1) A defendant appearing in person shall state in the memorandum of appearance an address for service which shall be within the state.

(2) Where a defendant appears by a Legal Practitioner, the Legal Practitioner shall state in the memorandum of appearance his place of business and an address for service which shall be within the State, and where any such Legal Practitioner is only the agent of another Legal Practitioner he shall also insert the name and place of business of the principal Legal Practitioner.

3. The Registrar shall not accept any memorandum of appearance which does not contain an address for service. If any such address is illusory, fictitious or misleading, the appearance may be set aside by a Judge on the application of a plaintiff.?

Ayiwulu, Esq. signed the processes filed as the defendant?s Counsel hence appending a signature to the processes has legal implications. In Zein vs. Geidam (2004) All FWLR (Pt.237) 457 at 481 paragraphs ?G?-?H? and page 482 paragraph ?A? as

follows:

?Firstly, a person who is not an illiterate, of full age, capacity and understanding (as in the instant case) is bound by the contents of a document signed by him. See Chief Okoya & 2 Ors. vs. Santilli & 2 Ors. (1994) 4 SCNJ (Pt.II) 333 at 353 ? per Belgore, JSC; Allied Bank of Nigeria Ltd. vs. Akubueze (1997) 6 SCNJ 116 at 140; Blay vs. Pollard (1930) 1 K.B. 628 at 638 ? per Secrutton, L.J. and recently, Okonkwo vs. C.C.B. (Nig.) Plc & 2 Ors. (2003) 2 SCNJ 90 at 108, (2003) 8 NWLR (Pt.822) 347 at 382 just to mention but a few.?

Order 14 Rules 2-3 and 11 reads:-

?2. Where any defendant fails to appear, a plaintiff may proceed upon default of appearance under the appropriate provisions of these rules upon proof of service of the originating process.

3. Where the claim in the originating process is a liquidated demand and the defendant or all of several defendants fail to appear, a plaintiff may apply to a Judge for judgment for the claim on the originating process or such lesser sum and interest as a Judge may order.

xxxxxxxxx

11. Where judgment is entered pursuant to any of the

preceding Rules of this Order, a Judge may set aside or vary such judgment on just terms upon an application by the defendant. The application shall be made within six days, showing a good defence to the claim and a just cause for the default.? The remedy for suing a wrong person or a party is governed by Order 17 Rules 4-5 of the Rules reads as follows:-

?4. Any person may be joined as defendant against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative. Judgment may be given against one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment.

5. Where an action has been incorrectly stated a Judge may upon application order a substitution or addition of any person as defendant or correction of any such name on any term as may be just.?

The word ?allege? or ?alleged? or ?allegedly? are defined in Macmillan English Dictionary, page 39 to wit:

?Allege ? To say that something is true or that someone has done something wrong or illegal, even though this has not

been proved: that the defence alleged that Jones was beaten up while in police custody. Be alleged to have done something. He is alleged to have ordered the murder of a US citizen.

?Alleged ? (Only before noun) claimed to be true, even though this has not been prove: the alleged victim?s evidence could not be relied upon.

?Allegedly ? If someone allegedly does something, another person says that they have done it, even though this has not been proved: The second incident allegedly occurred in the spring of 1992.?

A statement of claim usually contains allegations that may be true or false until proved at the hearing by oral or documentary evidence.

There are circumstances that a learned trial Judge has to consider the facts pleaded in a statement of defence to determine whether the plaintiff or a defendant has been wrongly sued as a defendant or the plaintiff lacked the capacity to have instituted the action. This is the purport of Order 17 Rule 6(1)-(2)-8 of the Rules: –

?6(1) It shall not be necessary that every defendant shall be interested as to all the reliefs prayed for, or as to every

cause of action included in any proceeding against him.

(2) A Judge upon considering the defence filed by any defendant may on application by that defendant make such order as may appear just to prevent him from being embarrassed or put to expense by being required to attend any proceedings in which he may have no interest.

7. xxxxxx

8. Where a plaintiff is in doubt as to the person from whom he is entitled to redress, he may, in such manner as hereinafter mentioned, or as may be prescribed by any special order, join two or more defendants, to the intent that the question as to which, if any, of the defendant is liable and to what extent, may be determined as between all parties.?

The effect of non-joinder or a misjoinder of parties is provided in Order 17 Rule 16(1)-(3) and 17(1)-(2) of the Rules: –

?16(1) No proceedings shall be defeated by reason of misjoinder or non-joinder of parties, and a Judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before him.

(2) A Judge may at any stage of the proceedings, either upon or without the application of either

party, and on such terms as may appear to the Judge to be just, order that the names of any parties improperly joined be struck out.

(3) A Judge may order that the names of any party who ought to have been joined or whose presence before the Court is necessary to effectually and completely adjudicate upon and settle the questions involved in the proceedings be added.

17(1) Any application to add or strike out or substitute or vary the name of a plaintiff or defendant may be made to a Judge by motion.

(2) Where the application is to add a plaintiff or a defendant, the application shall be accompanied by the statement of claim or defence as the case may be, all the exhibits intended to be used and the depositions of all the witnesses:

Provided that where the application is to substitute a deceased party with another person the application may not be accompanied by the documents specified above.?

The appellant should have applied by motion on notice for the learned trial Judge to join the proper defendant the respondent should have sued in the proceedings showing why the respondent should not have instituted this proceedings

against it.

The Writ and the Statement of Claim filed and served on the appellant indicates that a business or a contractual relationship exists between the respondent and the appellant. Order 17 Rule 28 and 34 of the Rules reads:-

?28. Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in such name or style as if it were a firm name, and so far as the nature of the case will permit, all rules relating to proceedings against firms shall apply.

34. Where by these Rules any act may be done by any party in any proceedings, such act may be done either by the party in person, or by his Legal Practitioner, or by his agent (unless an agent is expressly barred under these Rules).?

A ?business? is defined in Black?s Law Dictionary, 9th edition, page 226:-

?Business: 1. A commercial enterprise carried on for profit; a particular occupation or employment habitually engaged in for livelihood or gain. 2. Commercial enterprises (business and academia often have congruent aims). 3. Commercial transactions (the company has never done business in Louisiana).

See DOING BUSINESS. 4. By extension, transactions or matters of a noncommercial nature (the Courts? criminal business occasionally overshadows its civil business). 5. Parliamentary law. The matters that come before a deliberative assembly for its consideration and action, or for its information with a view to possible action in the future. In senses 2, 3, and 4, the word is used in a collective meaning.?

To concede to the argument of the appellant will mean that a company or a corporation, body or authority may enter into a business relationship with another person, company or corporation but upon a breach of the agreement, will plead that she is not a legal or juristic personality not capable to sue or be sued notwithstanding a colossal loss in goods and services that the breach might have ensued. That may or may not constitute a great fraud on creditors, parties, or persons that the company might have engaged as sub-contractors.

Sections 27(1)(a)-(f) and (2)(a)-(c) to (3) to 28 of the Companies and Allied Matters Act reads as follows:-

?27(1) The memorandum of every company shall state?

(a) the name of the company;

(b) that the registered office of the company shall be situated in Nigeria;

(c) the nature of the business or businesses which the company is authorized to carry on, or, if the company is not formed for the purpose of carrying on business, the nature of the object or objects for which it is established;

(d) the restriction, if any, on the powers of the company;

(e) that the company is a private or public company, as the case may be;

(f) that the liability of its members is limited by shares or by guarantee or is unlimited, as the case may be.

(2) If the company has a share capital?

(a) the memorandum shall also state the amount of authorised share capital, not being less than N10,000 in the case of a private company and N500,000 in the case of a public company, with which the company proposed to be registered, and the division thereof into shares of a fixed amount;

(b) the subscribers of the memorandum shall take among them a total number of shares of a value of not less than 25 per cent of the authorized share capital; and

(3) A subscriber of the memorandum who holds the whole or any part of the shares subscribed by him in trust for any other person shall disclose in the memorandum that fact and the name of the beneficiary.

28. Subject to the provisions of Section 27 of this Act, the form of a memorandum of association of?

(a) a company limited by shares;

(b) a company limited by guarantee; and

(c) an unlimited company, shall be as specified in Tables B, C and D respectively in the First Schedule to this Act, or as near that form as circumstances admit.?

Sections 35-38 of the Act further provides that:-

?35(1) As from the commencement of this Act, a company shall be formed in the manner set out in this section.

(2) There shall be delivered to the Commission?

(a) the memorandum of association and articles of association complying with the provisions of this Part of this Act;

(b) the notice of the address of the registered office of the company and the head office if different from the registered office:

?Provided that a postal box address or a private bag address shall not be accepted by the Commission as the registered

office;

(c) a statement in the prescribed form containing the list and particulars together with the consent of the persons who are to be the first directors of the company;

(d) a statement of the authorized share capital signed by at least one director; and

(e) any other document required by the Commission to satisfy the requirements of any law relating to the formation of a company.

36(1) The Commission shall register the memorandum and articles unless in its opinion?

(a) they do not comply with the provisions of this Act; or

(b) the business which the company is to carry on, or the objects for which it is formed, or any of them, are

illegal; or

(c) any of the subscribers to the memorandum is incompetent or disqualified in accordance with Section 20 of this Act; or

(d) there is non-compliance with the requirement of any other law as to registration and incorporation of a company; or

(e) the proposed name conflicts with or is likely to conflict with an existing trade mark or business name registered in Nigeria.

(2) Any person aggrieved by the decision of the Commission under Subsection (1) of this Section, may give notice to the Commission requiring it to apply to the court for directions and the Commission shall within 21 days of the receipt of such notice apply to the Court for the directions.

(3) The Commission may, in order to satisfy itself as provided in Subsection (1) (c) of this section, by instrument in writing require a person subscribing to the memorandum to make and lodge with the Commission, a statutory declaration to the effect that he is not disqualified under Section 20 of this Act from joining in forming a company.

(4) Steps to be taken under this Act to incorporate a company shall not include any invitation to subscribe for shares or

otherwise howsoever on the basis of a prospectus.

(5) Upon registration of the memorandum and articles, the Commission shall certify under its seal:-

(a) that the company is incorporated;

(b) in the case of a limited company, that the liability of the members is limited by shares or by guarantee; or

(d) that the company is a private or public company, as the case may be.

(6) The certificate of incorporation shall be prima facie evidence that all the requirements of this Act in respect of registration and of matters precedent and incidental to it have been complied with and that the Association is a company authorized to be registered and duly registered under this Act.

37. As from the date of incorporation mentioned in the certificate of incorporation, the subscriber of the memorandum together with such other persons as may, from time to time, become members of the company, shall be a body corporate by the name contained in the memorandum, capable forthwith of exercising all the powers and functions of an incorporated company

including the power to hold land, and having perpetual succession and a common seal, but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up as is mentioned in this Act.

38(1) Except to the extent that the company’s memorandum or any enactment otherwise provides, every company shall, for the furtherance of its authorized business or objects, have all the powers of a natural person of full capacity.?

The effect of having a Memorandum and Articles of Association of the Company is further provided in Section 41(1) of the Act: –

?41(1) Subject to the provisions of this Act, the memorandum and articles, when registered, shall have the effect of a contract under seal between the company and its members and officers and between the members and officers themselves whereby they agree to observe and perform the provisions of the memorandum and articles, as altered from time to time in so far as they relate to the company, members, or officers as such.?

The respondent is not shown by the appellant to be its member for the presumption in Section 42(1)-(2) of the Act

to apply: –

?42(1) A company shall, on being so required by any member, send to him a copy of the memorandum and of the articles, if any, and a copy of any enactment which alters the memorandum, subject to payment, in the case of a copy of the memorandum and of the articles, of N20 or such less sum as the company may prescribe and in the case of a copy of an enactment of such sum not exceeding the published price thereof as the company may require.

(2) If a company makes default in complying with this section, the company and every officer of the company who is in default shall be liable for each offence to a fine not exceeding N25.

An incorporated or registered company is presumed to be in possession of the Memorandum and Articles of Association of its registration or incorporation showing the nature of its incorporation, the name of the company, whether it can engage in a particular business, the nature of the business and to what extent, etc, so as to ensure that it is not carrying on business in Nigeria that are not in conformity with the Companies and Allied Mattes Act, 2004. A person cannot produce a document in evidence

that is not shown to be in his custody or possession such as a Certificate of Registration or the Memorandum or Articles of Association. In Alhaji Abdullahi Usman Matori vs. Alhaji Aminu Mohammed Dan Bauchi & Ors. (2004) All FWLR (Pt.197) 1010, Obadina, JCA held at page 1042 paragraph ?A? to ?E? as follows:

On the question of publication, I think the document, i.e. Exhibit ?F? has been published by the government. It is a manifestation of the government acceptance (is) of Exhibit ?B?. Exhibit ?F? is a publication of the findings and recommendations of the Commission of Inquiry as contained in Exhibit ?B?, although it was not made in a booklet form. I do not think the non compilation of Exhibit ?F? in a booklet form derogates from its efficacy, efficiency and effectiveness. In that regard, I think that Exhibit ?F? is the Government White Paper issued by the Bauchi State Government on the report of the Judicial Commission of Inquiry on Fire Disaster of Bauchi Printing and Publishing Company Limited (BPPC) and I so hold. In the circumstances, it

is my view that the Bauchi State Government accepted the indictment of the 1st respondent contained on page 41, paragraphs (n) and (o) of Exhibit ?B? and page 15 paragraphs (?n?) and (?o?) of Exhibit ?F?, the Government White Paper on the Fire Disaster of Bauchi Printing and Publishing Company Limited (BPPC).?

What is of importance is: Is the document, namely, the Certificate of Incorporation or the Articles of Association of the Company such as the appellant relevant? Sections 131(1)-(2) and 132 of the Evidence Act, 2011 reads as follows: –

?131(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.?

The respondent desired the learned trial Judge in the Court below to give her judgment in respect of the

remedies claimed against the appellant, the reliefs sought been founded on the facts set out in the Writ of Summons and the Statement of Claim supported by the front loaded documents as is required in Order 3 Rules 1-3 and Order 8 Rules 1-4(1) of the Nasarawa State High Court (Civil Procedure) Rules, 2010. The respondent pleaded the facts upon which the cause of action was founded supported by frontloaded document. Upon service of the Writ of Summons, the Statement of Claim and the front loaded documents the appellant ought to have entered an appearance by filing a Memorandum accompanied by a Statement of Defence with front loaded documents, if any, showing the defences the appellant intended to rely upon at the hearing as provided in Order 13 Rules 1-3 of the Rules.

Issues of fact, law or mixed law and fact are to be joined in the statement of defence as provided in Order 19 Rules 9-13 of the Rules (supra):-

?9. A party may by his pleadings join issues upon the pleadings of the opposing party and such joinder of issues shall operate as a denial of every material allegation of fact in the pleading upon which issue is joined except any fact

which the party may be willing to admit.

10. Wherever the contents of any documents are material it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material.

11. Wherever it is material to allege notice to any person of any fact, matter or thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms of such notice or the circumstances from which such notice is to be inferred are material.

12. Wherever any contract or any relation between any persons is to be implied from a series of letters of conversations, or otherwise from a number of circumstances, it shall be sufficient to allege such contract or relation as a fact, and to refer generally to such letters, conversations or circumstances without setting them out in detail. If in such case the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from such circumstances, he may state the same in the alternative.

13. A party may not

allege in any pleadings any matter or fact the law presumes in his favour or as to which the burden of proof lies upon the other side, unless the same has first been specifically denied.?

The consequences for pleading in a Statement of Defence the defences a defendant intends to rely upon at the trial are provided in Order 20 rules 1(1)-(2), 3-5(1-4), (6) reads:-

?1(1) Every statement of claim, defence or counterclaim shall state specifically the relief claimed either singly or in the alternative, and it shall not be necessary to ask for general or other relief, which may be given as a Judge may think just as if it had been asked for.

(2) Where the plaintiff seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct grounds, they shall be stated, as far as may be, separately and distinctly. The same rule shall apply where the defendant relies upon several distinct grounds of defence, set-off or counterclaim founded upon separate and distinct facts.

3. The statement of defence shall be a statement in summary form and shall be supported by copies of documentary evidence, list of

witnesses and their written statements on oath.

4. When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he shall not do so evasively, but answer the point of substance, if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.

5(1) In an action for debt or liquidated demand in money, a mere denial of the debt shall not be sufficient defence.

(2) xxxx

(3) In an action for goods sold and delivered, the defence must deny the order or contract, the delivery, or the amount claimed.

(4) xxxxx

6. If either party wishes to deny the right of any other party to claim as executor, or a trustee or in any representative or other alleged capacity or the alleged constitution of any partnership firm, he shall deny the same specifically.?

The failure to file a Statement of Defence is a tacit admission of the facts pleaded by the plaintiff in the Statement of Claim under Order 21 rules 1, 9 and 12 of the Rules:-

?1. Any party to a proceeding may give notice by his pleading or otherwise in writing, that he

admits the truth of the whole or any part of the case of any other party.?

xxxx

9. In all actions other than those in the preceding Rules of this Order, if the defendant makes default in filing a defence, the plaintiff may apply to a Judge for judgment, and such judgment shall be given upon the statement of claim as the Judge shall consider the plaintiff to be entitled to.

xxxx

12. Any judgment by default whether under this Order or under any Order of these Rules shall be final and remain valid and may only be set aside upon application to the Judge on grounds of fraud, non-service or lack of jurisdiction upon such terms as the court may deem fit.?

All essential facts to govern a defence have to be pleaded as provided under Order 19 Rule 7(1)-(2) of the Rules reads:-

?7(1) All grounds of defence or reply which make an action not maintainable or if not raised will take the opposite party by surprise or will raise issues of facts not arising out of the pleadings shall be specifically pleaded.

(2) Where a party raises any ground which makes a transaction void or voidable or such matters as fraud, Limitation

Law, release, payment, performance, facts showing insufficiency in contract or illegality either by any enactment or by common law, he shall specifically plead same.?

The Writ of Summons and the Statement of Claim were filed in the Court below by the respondent on 4th February, 2011. The Nasarawa State High Court (Civil Procedure) Rules, 2010 took effect from 4th November, 2010. Order 1 Rule 1(1)-(2) of the Rules reads as follows:-

?1(1) These Rules shall apply to all proceedings including all part-heard causes and matters in respect of steps to be further taken in such causes and matters.

(2) The application of these Rules shall be directed towards the achievement of a just, efficient and speedy dispensation of justice.?

From the commencement of the Rules on 4th November, 2010 decisions founded on the interpretation of Rules of Practice and Procedure of other jurisdictions or Court of Justice ought not to be relied upon as guide for the attainment of justice in the High Court of Nasarawa State. This was laid down by the Supreme Court in Odu vs. The State (1965) NMLR 129, Brett, JSC observed at page 131 to 132 as

follows:

?As regards the specimen signature card and the paying-in-slip, the trial judge held that they ?came within the principle of the cases in which it has been held that the use of a pretended name of a fictitious person amounts to forgery?, and he referred to the case of Anne Lewis (1) having previously entered into a lengthy examination of what constitutes forgery at common law. With respect, we think that the most profitable approach to the interpretation of the Criminal Code is to begin by examining the words of the Code itself, and that decisions on the common law are only of value where the wording of the Code is obscure or capable of bearing more than one meaning, when they may be referring to for the purpose of ascertaining the sense in which words are used in the Code. Under Section 465 of the Code forgery consists of making a false document or writing, knowing it to be false and with the necessary intent, and Section 464 defines a false document or writing as including one of which ?the whole or any material part purports to be made by or on behalf of some person who does not in fact exist.? In this case, the

appellant presented the two documents as having been made by himself, and the fact that he did so under a false name does not mean that the document purported to be made by some person who did not exist. The officials of the Bank of West Africa at Uyo knew that the person with whom they were dealing was the appellant, even if they did not know his true name, and the documents did not purport to be made by or on behalf of anyone but the appellant. The convictions on these two counts also set aside.?

In Nwobodo vs. Onoh (1984) NSCC 1 Bello, JSC (as he was) expressed the following opinion considering new or amended legislations at page 14 to wit: ?I think I may end this part of my judgment with this observation. In the application of the provisions of a statute to a particular case, a Court should not blindly adhere to the ratio decidendi of a previous case founded on the interpretation of a former statute without having first carefully examined that statute and meticulously compared it with the statute governing the case for determination by the Court in order to ascertain whether the two statutes are in pari materia. It is only when the

100

two statutes are similar and identical that the interpretation placed on one can be a precedent to the interpretation of the other.?

The question that readily comes to mind is this: with the pleading supported by frontloaded documents which the respondent intended to rely upon at the hearing but the appellant did not file a statement of defence supported by documents to counter the facts pleaded by the respondent and the front loaded documents, on whom lies the burden of producing the Certificate of Incorporation of the appellant? The answer again lies in the provisions of Sections 131(1)-(2) and 132 of the Evidence Act, 2011 to wit:-

?131(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.?

The onus of proving that notwithstanding the pleaded facts and

101

the frontloaded documents in the Statement of Claim, the appellant is not a juristic or a legal entity, the onus of proof shifts from the respondent to the appellant. The learned trial Judge ought to have entered judgment for the respondent based on the facts pleaded in the statement of claim as verified by the front loaded documents in the absence of a defence and front loaded documents, if any, denying liability or that there is no contractual relationship between the respondent and the appellant. Section 133-134 of the Evidence Act, 2011 further provides that:-

?133(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to a any presumption that may arise on the pleadings.

(2) If the party referred to, in Subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the

102

issues in the pleadings have been dealt with.

(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.

134. The burden of proof shall be discharged on the balance of probabilities in all civil proceeding.?

There were no pleadings nor frontloaded documents form the appellant to conflict with the facts pleaded in the statement of claim nor the frontloaded documents emanating from the respondent hence the respondent discharged the burden of proof cast on her as a claimant to be entitled to a decision by the learned trial Judge as per the Statement of Claim.

The presumption under Section 123 of the Evidence Act, 2011 is that where the defence has filed no statement of defence and front loaded documents to be used at the hearing, there is no defence to the claims of the respondent and the claims are uncontested. Section 123 of the Evidence Act, 2011 provides as follows:-

?123. No fact needs to be proved in any civil proceeding which the parties to the proceeding or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under

103

their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings:

Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.?

No one sets out to prove at the hearing what had not been denied in the pleadings. See Olale vs. Ekwelendu (1989) 7 SCNJ 62 at page 102. The appellant did not file a statement of defence to deny that she is not the ?defendant? or the body that is referred to as ?Co.? that is, an abbreviation form of a ?company? in this proceedings. The learned authors of Osborn?s Concise Law Dictionary, 12th edition, page 138 defined ?defendant? and ?defence? as ?A person against whom an action or other civil proceeding (other than a petition) is brought; also a person being charged with an offence.? A ?defence? means ?a defendant who wishes to defend a claim must file a defence. Failure to do so may result in a claimant obtaining a default judgment (q.v.) (CPR 15).? The learned authors of

104

Black?s Law Dictionary, 9th edition, page 482 defined a ?defendant? as ?A person sued in a civil proceeding or accused in a criminal proceeding while a ?defense? is ?1. A defendant?s stated reason why the plaintiff or prosecutor has no valid case; especially, a defendant?s answer, denial, or plea

The failure to file a statement of defence upon service of a statement of claim is that the defendant has no defence to the plaintiff in the statement of claim as is provided in Order 20 Rules 1(1), 3-5(1)-(2), 10-11 and 15(1) of the Nasarawa State High Court (Civil Procedure) Rules, 2010 to wit:-

xxxxxxxx

3. The statement of defence shall be a statement in summary form and shall be supported by copies of documentary evidence, list of witnesses and their written statements on oath.

4. When a party in any

105

pleading denies an allegation of fact in the previous pleading of the opposite party, he shall not do so evasively, but answer the point of substance, if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.

5(1) In an action for debt or liquidated demand in money, a mere denial of the debt shall not be sufficient defence.

(2) In an action for money had and received a defence in denial must deny the receipt of the money or the existence of those facts which are alleged to make such receipt by the defendant a receipt to the use of the plaintiff.

xxxx

10. Where any such person as in Rule 7 of this Order is not a party to the action he shall be summoned to appear by being served with a copy of the defence and counterclaim, and such service shall be regulated by the same rules as those governing the service of the originating process, and every defence and counterclaim so served shall be indorsed as in Form 14 with such modifications or variations as circumstances may require.

11. Any person not already a party to the action, who is served with a defence and

106

counterclaim as aforesaid, must appear thereto as if he had been served with an originating process to appear in an action.

xxxxxx

15(1) Any ground of defence which arises after the action has been filed, but before the defendant has delivered his defence, and before the time limited for doing so has expired, may be raised by the defendant in his defence, either alone or together with other grounds of defence.?

Order 21 Rule 1 of the Rules (supra) provides:-

?1. Any party to a proceeding may give notice by his pleading or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party.?

Order 22 Rules 1, 3, 9, 11-12 of the Rules (supra) provides:-

?1. If the claim is only for a debt or liquidated demand, and the defendant does not within the time allowed for the purpose, file a defence, the plaintiff may, at the expiration of such time, apply for final judgment for the amount claimed with costs.

2. xxxxx

3. If the plaintiff?s claim be for pecuniary damages or for detention of goods with or without a claim for pecuniary damages only, and the

107

defendant or all the defendants, if more than one, make default as mentioned in Rule 1 of this Order, the plaintiff may apply to a Judge for interlocutory judgment against the defendant or defendants and the value of the goods and the damages, or the damages only as the case may be, shall be ascertained in any way which the Judge may order.

xxxxxx

xxxxxxxx

11. In any case in which issues arise in a proceeding other than between plaintiff and defendant, if any party to any such issue makes default in filing any pleading, the opposite party may apply to a Judge for such judgment, if any as upon the pleadings he may appear to be entitle to and the judge may order judgment to be entered accordingly or may make such other order as may be necessary to do justice between the parties.

12. Any judgment by default whether under this Order or under any

108

Order of these Rules shall be final and remain valid and may only be set aside upon application to the Judge on grounds of fraud, non-service or lack of jurisdiction upon such terms as the court may deem fit.?

In Olale vs. Ekwelendu (1989) 7 SCNJ (Pt.2) 181, Oputa, JSC held at page 210 lines 7 to page 211 lines 1-4 as follows:-

?Since there was no proper and effective traverse of the case pleaded by the plaintiff, no issue of fact arose from the pleadings, and that being so, the plaintiff should have had judgment on the pleadings. There was no need for a formal trial, when there was no issue arising from the pleadings warranting such a trial. Pleadings will lose their place in civil procedure and their intendment if our trial Courts fail to advert to their essential role of settling issues. Trial Courts which merely try issues on must pleadings, settle those issues.

It is also incumbent on our trial Courts to discover (by carefully attending to the pleadings) what case the plaintiff is putting across. The case is plaintiff?s case as per his claims. In the case on appeal, the plaintiff/respondent?s main claim is, as

109

rightly found by the Court of Appeal, wholly circumscribed by and within the Abandoned Property Edict of the Rivers State. It was not a case of declaration of title to land in Diobu as such. That being so, it was not necessary for the plaintiff, who based his entire case on the Abandoned Property Edict, to go into an entirely unnecessary excursion into the modes and niceties of proof of title to land as decided in Idundun & Ors. vs. Okumagba (1976) 1 NMLR 200; (1976) 9 & 10 SC 227 or to explore the limits of Ekpo vs. Ita XI NLR 68. That deceptive and one of our most misleading cases. If the Conveyance, Ex. Q, pleaded by the defendant was in issue ? that is, if the defendant counter-claimed, basing his case on that Conveyance, then the different modes of establishing title to land would have arisen. But the defendant did not counter-claim and the Conveyance pleaded by the defendant had no place under the Abandoned Property Edict within whose exclusive limited plaintiff?s case was securely posited.

Another point I will like to comment on rather briefly is the onus of proof on the plaintiff/respondent. Undoubtedly, there is an onus on

110

the plaintiff to prove his case. The onus of proof is nothing more than an onus to prove any issue or the various issues arising from the pleadings. It is only when and where issues of fact arise from the pleadings of the parties that one can then determine what those issues are and on whom the onus of proof lies. A plaintiff can discharge the onus of proof in his pleadings: See Onyekaonwu & Ors. vs. Ekwubiri & Ors. (1966) 1 All NLR 32 at page 35. In this case, the plaintiff/respondent?s case based on the Abandoned Property Edict, was not traversed. There was no issue of fact on the case presented by the plaintiff in his statement of claim. No one sets out to prove that which had not been denied. The trial Court should have realized and adverted to that. The plaintiff?s case as pleaded, standing uncontroverted, thus needed no further proof. It was redundant that the plaintiff was made to prove what had not been denied. It was a travesty that after the proof (which was even uncalled for), he was denied judgment. Thank goodness, the Court of Appeal rectified the situation by reversing the perverse judgment of the trial Court.?

111

See Andony vs. Ayi II & Ors. (2004) All FWLR (Pt.227) 444 at 482 and Elendu vs. Ekwoaba (1995) 3 NWLR (Pt.386) 704 at 747.

Having pleaded facts supported by front loaded documents the learned trial Judge ought to have been guided by the provisions of Section 133(2)-(3) of the Evidence Act, 2011. Order 4 Rule 9(1)-(4) of the Court of Appeal Rules, 2016 reads: –

?9(1) On the hearing of any appeal, the Court may, if it thinks fit, make any such Order(s) as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.

(2) The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.

(3) xxxxxxx

(4) In any case where the Court has power to order a new trial on the ground that damages awarded by the Court below are excessive or inadequate, the Court may in lieu of ordering a new trial:-

(a) Substitute for the sum awarded by the Court below such sum as appears to the Court to be

112

proper;

(b) Reduce or increase the sum awarded by the Court below by such amount as appears in the Court to be proper in respect of any distinct head of damages erroneously included or excluded from the sum so awarded.

But except as aforesaid, the Court shall not have power to reduce or increase the damages awarded by the Court below.?

The appellant has been unable to show any wrong committed by the learned trial Judge nor how the decision led to a miscarriage of justice. Rather, it is the appellant?s conduct in not filing a statement of defence supported by frontloaded documents to be relied upon at the trial that has caused injustice to the respondent since the claims have not been heard and determined on the merit since 4th February, 2011 when the suit was initiated in the Court of trial. Order 4 Rule 9(3) of the Court of Appeal Rules, 2016 reads as follows:-

?(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question; and if it appears to the Court that any such wrong or miscarriage of justice as is mentioned in Sub-rule (2) of this Rule affects part only of

113

the matter in controversy or one or some only of the parties, the Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder.?

This appeal is a situation where I ought to give final judgment? to the respondent based on the unchallenged facts pleaded in the Statement of Claim and supported by frontloaded documents in the interest of justice, doing otherwise will amount to a travesty of justice against the respondent. Nobody should be allowed to benefit from his or her wrongdoing. See The Capalla (1861-73) All E.R. Rep. 433; Brossette Manufacturing Nig. Ltd. vs. M/S Ola Ilemobila Ltd. (2007) All FWLR (Pt.379) 1340 at 1379-1381 and Solanke vs. Abed (1962) 1 All NLR 220. In Blake Vs. Mowatt (1856), 21 Bea vs. 603, Romily M. R. held at page 613 that ?it is the leading principle of the equity administration in this Court, that truth shall govern all transactions, and that one who deludes another in a contract, or permits him to be deluded, and takes advantage of that delusion, cannot afterwards complain, that, if the contract be set aside, he will be in

114

a worse situation than if the contract had never been entered into? ? cited with approval by McCardie J; in Armstrong Vs. Jackson (1916-17) ALL E.R Rep. 1117 at 1128. See also 35. Digest 639. In Langton vs. Hughes (1813) 12 Digest 270, 2214, Lord Ellenborough, C.J., said that: ?What is done in contravention of the provisions of an Act of Parliament, cannot be made the subject-matter of an action? ? cited with approval in Bostel Bros. Ltd. vs. Hurlock (1948) 2 All E.R. 312 at 313. See also Brightman vs. Tate (1919) 1 K.B. 463 and Re Mahmoud and Ispahani (1921) 2 K.B. 716 or 12 Digest 271, 2220. The decision of this Court becomes that which the learned trial Judge would have rendered in favour of the respondent there being no statement of defence and documentary exhibits to join issues with the respondent at the close of pleadings. In Chief Bola Ige vs. Dr. Victor Olunloyo (1984) 1 SCNLR 158, Aniagolu, JSC held at page 178:

?I agree with the view expressed? that the judgment of an Appeal Court, allowing an appeal, has the effect of substituting the Appeal Court judgment for the judgment of the Court

115

below set aside, making the decision appealed against disappeared altogether.?

Judgment could be had on the pleadings where at the close of pleadings there was not a legally accepted issue of fact in dispute between the parties. The appellant has the opportunity of knowing whether she is incorporated as a company under the Companies and Allied Matters Act, 2004 and was issued a Certificate of incorporation and who is in possession of the Certificate of incorporation to have downloaded as provided in Order 20 Rule 3 and 5(1)-(3) and Order 21 Rules 1, 2(2)-(3) of the Nasarawa State High Court (Civil Procedure) Rules, 2010.

I am of the humble opinion that the respondent adduced sufficient facts in the pleadings and the front loaded documents to enable the appellant to counter them in a Statement of Defence coupled with front loaded documents such as the Certificate of incorporation, Memorandum and Articles of Registration if any, else, the mere denial of the existence of a contractual relationship with the respondent in a counter-affidavit does not meet the requirements of the provisions of Order 20 Rule 3 and Order 20 Rule 1 and

116

2(2) of the Nasarawa State High Court (Civil Procedure) Rules, 2010. This opinion finds support in the Supreme Court decision in Ege Shipping & Trading Industry Inc. vs. Tigris International Corporation (1999) 11-12 SCNJ 1. The learned trial Judge held at pages 99 lines 26 to page 100 lines 1-14 of the printed record as follows:-

?On the whole, the issues canvass by the objection and the respondent are apt as the issue of objection can be raised at any time. It is also the law that objection can be raised in the statement of defence.

In the case at hand, we are dealing with affidavit evidence sufficient discloses of facts must be made available to the Court. The applicant has failed to file any certificate of incompetent by the defendant to enable the Court properly determine whether it is juristic personality or not. Looking at the force (sic) of the processes is not enough. Since the plaintiff in his statement of claim stated that the respondent is a Limited Liability Company i.e. paragraph 2 therein. The defendant is now saying it is not a juristic personality. It now turns on him to exhibit such fact before the Court, which he failed.

117

The objection cannot therefore be sustained. It is refused. He should go ahead to file his defence if any.

SGD.

HON. JUSTICE ISA A.A. RAMALAN, JUDGE, 19/05/2011.?

I have shown that the Writ of Summons and the Statement of Claim filed on 4th February, 2011 is front loaded with a list of the witnesses to be called at the trial with front loaded documents which have not been contradicted in a statement of defence by the appellant up to the day the learned trial Judge rendered decision over-ruling the preliminary objection raised by the appellant on 19th May, 2011. The jurisdiction of the Nasarawa State High Court of Justice is provided in Section 272(1)-(2) of the Constitution of the Federal Republic of Nigeria, 1999 as altered with effect from 29th May, 1999 as follows:-

?272(1) Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings

118

involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.

(2) The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction.?

The High Court in exercise of its original jurisdiction is competent to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue under Section 272(1) of the Constitution.

The facts and the remedies pleaded in the statement of claim alone are to be scrutinized by a learned trial Judge to arrive at the decision whether the learned trial Judge has or lacks the jurisdiction to hear and determine the dispute or controversy. See Ladoja vs. INEC (2007) All FWLR (Pt.377) 934 at 967; Izenkwe vs. Nnadozie 14 WACA 361; Tukur vs. Governor of Gongola State (1989) 4 NWLR (Pt.117) 517 and Inakoju vs. Adeleke

119

(2007) All FWLR (Pt.353) 3.

A ?legal right, duty, liability, interest, obligation or claim is in issue in the statement of claim and this confers jurisdiction on the Nasarawa State High Court of Justice to hear and determine the respondent?s claims or grievances against the respondent in consonance with the provisions of Section 272(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. In Madukolu & Ors. vs. Nkemdilim (1962) All NLR (Pt.2) 581, Bairamian, F.J. observed at page 585:-

?This appeal from the High Court of the Eastern Region (Betuel, J., at Onitsha on 23rd November, 1959) raises the questions of res judicata and turns on the application of Section 53 of the Evidence Act, which provides that:-

?Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the Court, and appearing from the judgment itself to be the ground on which it was based, unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action is intended to be proved.?

120

The questions raised in this appeal are:-

(1) Whether title to land was a fact directly in issue in the previous case between the parties;

(2) Whether the title was actually decided by the Court;

(3) Whether the title appears from the judgment itself to be the ground on which it was based.?

In the course of hearing learned Counsel?s argument, it became necessary for the Federal Supreme Court Justices to determine when it could be said that a Court of competent jurisdiction has or does not have the requisite jurisdiction to hear and determine the subject-matter in dispute. Bairamian, F.J., held at page 589-590:-

?Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a Court. Put briefly, a Court is competent when:-

?(1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and

(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and

(3) the

121

case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication.

If the Court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial; the argument will be that the irregularity was so gave as to affect the fairness of the trial and the soundness of the adjudication. It may turn out that the party complaining was to blame, or had acquiesced in the irregularity; or that it was trivial; in which case the appeal Court may not think fit to set aside the judgment. A defect in procedure is not always fatal.?

There is no suggestion by the learned Counsel to the appellant in attempt to impugn the decision of the learned trial Judge that: ?(1) The Court below was not qualified to hear and determine the dispute because it was not properly constituted as regards numbers and qualifications of the members of the bench nor that the learned trial

122

Judge was not qualified to adjudicate for any other reason.? The learned Counsel to the appellant has not argued or submitted that: ?(2) The subject matter of the case is not within the jurisdiction of the lower Court nor that any feature in the case touching on lack of jurisdiction was established in the Court below by cogent and sufficient evidence which prevented the learned trial Judge from exercising jurisdiction in the dispute, bearing in mind that it is the appellant but not the respondent that raised objection to the competence of the decision of the learned trial Judge not in a statement of defence supported by any documentary evidence but on points of law supported by a counter-affidavit contrary to the provisions of Order 19 Rule 7(1)-(2), 9 and Order 20 Rule 1(1), 3-5(1)-(3) of the Nasarawa State High Court (Civil Procedure) Rules, 2010. The respondent?s remedy was to have applied for a decision under Order 22 Rule 9 and Order 24 Rule 2(1)-(2) of the Nasarawa State High Court (Civil Procedure) Rules, 2010:-

?9. In all actions other than those in the preceding Rules of this Order, if the defendant makes default in

123

filing a defence, the plaintiff may apply to a Judge for judgment, and such judgment shall be given upon the statement of claim as the Judge shall consider the plaintiff to be entitled to.

xxxxxxx

2(1) Any party may by his pleading raise any point of law and the Judge may dispose of the point so raised before or at the trial.

(2) If in the opinion of the Judge, the decision on such point of law substantially disposes of the whole proceedings or of any distinct part thereof, the Judge may make such decision as may be just.?

The issue of whether an appellant is or is not a juristic personality or is a legal entity that can sue or be sued in its corporate or company name is a point of law which should have been raised in a statement of defence not by affidavit evidence. The third question to determine when the issue of lack of jurisdiction of a Court to entertain a claim is raised is to ask the following question: ?(3) Did the case not come before the Court initiated by due process and upon the fulfillment of any condition precedent to the exercise of jurisdiction The onus will be on the party objecting to the jurisdiction

124

of the Court to adduce evidence showing what condition precedent has been violated for initiating the proceedings without which the Court will lack the jurisdiction to entertain the suit.

The party complaining in this appeal is to be blamed for not having filed any statement of defence and frontloading same with documents showing that though not registered as a corporation or a company, the appellant has the powers to engage in business of the magnitude pleaded by the respondent supported by frontloaded documents at pages 10-11 of the record of proceedings.

This is the purport of the decision of the Supreme Court in Madukolu & Ors. vs. Nkemdilim & Ors. (supra) per Bairamian, F.J., at page 590 to wit:-

Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication.

125

turn out that the party complaining was to blame, or had acquiesced in the irregularity; or that it was trivial; in which case the appeal Court may not think fit to set aside the judgment. A defect in procedure is not always fatal.?

A ?point of fact? and a ?point of law? are defined in Black?s Law Dictionary, 9th edition, page 1275:-

?Point of fact:- A discrete factual proposition at issue in a case.

?Point of law:- A discrete legal proposition at issue in a case.?

Order 24 Rule 1 and 2(1)-(2) of the Nasarawa State High Court (Civil Procedure) Rules, 2010 is couched in the following manner:-

“1. No demurrer shall be allowed.

2(1) Any party may by his pleading raise any point of law and the Judge may dispose of the point so raised before or at the trial.

?The issue of lack of jurisdiction of a Court of Justice to hear and determine a cause or matter is a

126

?point of law? hence Order 24 Rule 2(1)-(2) of the Nasarawa State High Court (Civil Procedure) Rules, 2010. An affidavit is oral evidence that has been sworn before an officer of a Court of competent jurisdiction supported if available, with documentary exhibits as provided under Sections 107-109, 113-116 of the Evidence Act, 2011 to wit:-

?107. A Court may, in any civil proceeding make an order at any stage of such proceeding directing that specified facts may be proved at the trial by affidavit with or without the attendance of the deponent for cross-examination.

Provided that where a party desires the attendance of such deponent for cross-examination the Court shall require his attendance for that purpose where this would not result in unjustifiable delay or expense.

108. Before an affidavit is used in the Court for any purpose, the original shall be filed in the Court, and the original or an office copy shall alone be recognized for any purpose in the Court.

109. Any affidavit sworn before any Judge, officer or other person duly authorized to take affidavits in Nigeria may be used in the Court in all cases where

127

affidavits are admissible.

xxxx

113. The Court may permit an affidavit to be used, notwithstanding that it is defective in form according to this Act, if the Court is satisfied that it has been sworn before a person duly authorized.

114. A defective or erroneous affidavit may be amended and re-sworn by leave of the Court, on such terms as to time, costs or otherwise as seem reasonable.

115(1) Every affidavit used in the Court shall contain only a statement of fact and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.

(2) An affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion.

(3) When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the grounds of his belief.

(4) When such belief is derived from information received from another person, the name of his informant shall be stated and reasonable particulars shall be given respecting the

128

informant and the time, place and circumstance of the information.

116. When there are before a Court affidavits that are irreconcilably in conflict on crucial facts, the Court shall for the purpose of resolving the conflict arising from the affidavit evidence, ask the parties to proffer oral evidence as to such facts, and shall hear any such oral evidence of the deponent of the affidavits and such other witnesses as may be called by the parties.?

The person swearing an affidavit is known as ?the deponent? under Section 117(1)(c) or ?the witness? under Section 115(1) of the Evidence Act, 2011. In Bamaiyi vs. The State (2001) FWLR (Pt.46) 956, Uwaifo, JSC held at page 978 paragraph ?G? to page 979 paragraphs ?A?-?B? and page 981 paragraphs ?C?-?F? as follows:-

?I think the two affidavits must now be read as one since the one later in time was sworn in furtherance of the earlier. It must not be forgotten that the deponent, Olakunle Ligali, deposed that by virtue of his schedule of duties, he became conversant with the facts of this case. To be

129

conversant with, is to have knowledge of a matter. Even so, the law requires a deponent of his type to confine himself to facts and circumstances. An affidavit meant for use in Court stands as evidence and must, as near as possible, conform to oral evidence admissible in Court. Sections 86 and 87 of the Evidence Act provides as follows:

86. Every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.

87. An affidavit shall contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion.

These provisions have received the consideration of this Court in Governor of Lagos State Vs. Ojukwu (1986) 1 NWLR (pt. 18) 621; Orji Vs. Zaria Industries Ltd. (1992) 1 NWLR (pt. 216) 124; and more recently Josien Holdings Ltd. Vs. Lornamead Ltd. (1995) 1 NWLR (pt. 371) 254?

I think the legal position is clear that in any affidavit used in the Court, the law requires, as provided in Sections 86 and 87 of the Evidence Act, that it shall contain only a statement of facts and

130

circumstances derived from the personal knowledge of the deponent or from information which he believes to be true, and shall not contain extraneous matter by way of objection, or prayer, or legal argument or conclusion. The problem is sometimes how to discern any particular extraneous matter. The test for doing this, in my view, is to examine each of the paragraphs deposed to in the affidavit to ascertain whether it is fit only as a submission which Counsel ought to urge upon the Court. if it is, then it is likely to be either an objection or legal argument which ought to be pressed in oral argument; or it may be conclusion upon an issue which ought to be left to the discretion of the Court either to make a finding or to reach a decision upon through its processes of reasoning. But if it is in the form of evidence which a witness may be entitled to place before the Court in his testimony on oath and is legally receivable to prove or disprove some fact in dispute, then it qualifies as a statement of facts and circumstances which may be deposed to in an affidavit. It therefore means that the prayers, objections and legal arguments are matters that may be

131

pressed by Counsel in Court and are not fit for a witness either in oral testimony or in affidavit evidence; while conclusions should not be drawn by witnesses but left for the Court to reach.?

The intention of the Rules Maker is that a ?point of law? shall be raised in the pleadings but the learned trial Judge ?may dispose of the point so raised before or at the trial? as provided in Order 24 Rule 2(1) of the Rules. But the decision to hear argument on the point of law ?before or at the trial? is within the province of the learned trial Judge the governing consideration being whether ?the decision on such point of law substantially disposes of the whole proceedings or of any part thereof,? underOrder 24 Rule 2(2) of the Rules. The Rules Maker provides that that is when ?the Judge may make such decision as may be just? in the given circumstances. See Everett vs. Ribbands (1952) 1 All E.R. 823 per Romer, L.J., at page 827 and Radstock Co-operative vs. Norton Radstock U.D.C. (1968) 2 All E.R. 59 per Harman, L.J., at page 65.

The procedure for striking out a suit ought to be judicially

132

and judiciously exercised if the claims are frivolous, scandalous, embarrassing or discloses no cause or reasonable cause of action. But if the pleaded facts are in dispute, which can be detected from a consideration of the Statement of Defence supported by frontloaded documents, it is most appropriate not to strike out a claim by way of preliminary objection.

The Nasarawa State High Court (Civil Procedure) Rules, 2010 were made pursuant to the provisions of Section 274 of the Constitution of the Federal Republic of Nigeria, 1999 as altered with effect from 29th May, 1999. The provision reads:-

?274. Subject to the provisions of any law made by the House of Assembly of a State, the Chief Judge of a State may make rules for regulating the practice and procedure of the High Court of the State.?

The Rules have constitutional flavour and binds the parties and the Court that is seised with jurisdiction to hear and determine the dispute or controversy. In Kalu vs. Odili (1992) 6 SCNJ (Pt.1) 76, Karibi-Whyte, JSC held at page 119 that: ?It is a well-established principle of construction of statutes, and indeed the Constitution, that

133

where the definition section, therein has defined a particular word or expression, the meaning so given to the word, unless the con otherwise requires, shall be used throughout the statute. See Ejoh vs. I.G.P. (1963) 1 All NLR 250.?

In Ohene Moore vs. Akesseh Tayee (1933) 2 WACA 43, the Privy Council held at page 44 per Lord Atkin as follows:

?Now the unfortunate thing is that that order so made by the Court of first instance did not comply with the provisions of the statute which provides that ?leave to appeal from a paramount Chief?s Tribunal shall not be granted unless and until the appellant shall either have paid the costs in such Tribunal or shall have deposited therein or in the Court to which the appeal is being taken a sum of money sufficient to satisfy such costs.? To begin with, a bond is not payment of money, and in the second place, if it had been a payment of money, these particular bonds are not conditioned for payment of the costs in the Native Tribunal but were conditioned for payment of costs in the Appellate Court, though the amount of money, 21 2pounds. 6d., appears to be the amount of the

134

taxed costs in the Native Tribunal Court. It is sufficient to say that the statutory condition upon which alone leave to appeal could be given was not fulfilled. When the appeal came before the Provincial Commissioner this point was taken, and he perhaps not unnaturally treated it as a technicality which he could sweep aside, and ordered that the costs incurred by the respondent, 21 2pounds. 6d., in the Court of first instance should be at once paid to his Court, and that was eventually done. He then proceeded to allow the appeal.

Unfortunately, as was found by the majority of the Court of Appeal and as their Lordships thinks, the Provincial Commissioner had no jurisdiction to make any order at all, because no appeal was properly before him. After all, it is to be remembered that all appeals in this country and elsewhere exist merely by statute and unless the statutory conditions are fulfilled no jurisdiction is given to any Court of Justice to entertain them.?

In Kum vs. Busia (1940) 6 WACA 12 appears the following passage at pages 12 to 13 to wit:

?Counsel for the appellant has been unable to point to any enactment expressly

135

conferring upon this Court jurisdiction to hear this appeal. So far as this Court is aware there is none. Counsel falls back on Section 8 of the West African Court of Appeal Ordinance (Cap.5) which reads:-

?Notwithstanding anything hereinafter contained the Court of Appeal may entertain any appeal from a Court below on any terms which it thinks just?

and he asks this Court to entertain this appeal under that section.

We are of opinion that we have no jurisdiction to do so, because we take the view that this section does not go so far as to confer a general jurisdiction to hear appeals from Courts below but must be construed as limited to those appeals which lie by virtue of the other provisions of the same Ordinance or the provisions of some other Ordinance. This is evidently the view taken both by the majority and dissenting Judge in the case of Dovlo Kudiabor vs. Hutohoke Kudanu in which the West African Court of Appeal gave a judgment (which has not been reported) on the 14th November, 1932.

The preliminary objection is upheld and we hold that we have no jurisdiction to entertain the appeal. The appeal is accordingly

136

dismissed with costs assessed at 28 11pounds. 6d.?

In Dovlo Kudiabor vs. Hutohoke Kudanu (1932) 6 WACA 14 to 15:

?The preliminary point taken in this appeal is a short one. It appears that the judgment against which the appeal is taken was delivered by the Provincial Commissioner on 16th October, 1931. By Rule 10 of the West African Court of Appeal Rules it is provided that after three months from the date of a final judgment or decision application for leave to appeal shall not be entertained by the Court below. The judgment of the Provincial Commissioner who was sitting on appeal from a Tribunal was a final judgment and according to the rule he could not therefore entertain any application for leave to appeal after three months from the date of the judgment and the application in this case was in fact not made to him until the 11th April or nearly six months after when he gave conditional leave to appeal.

Inasmuch as the rule specially provides that after three months he should not entertain an application for leave to appeal, it is clear that in granting leave the Provincial Commissioner was doing something which the rule

137

specially prohibited him from doing, and it follows that his order must be regarded as a nullity and that this appeal is not properly before the Court.

Then the further question arises can this Court entertain the appeal under the circumstances? On behalf of the appellant it is argued that leave to appeal was obtained from the Provincial Commissioner within six months within which time the appellant might have obtained leave from the West African Court of Appeal under Rule 11 and that it is a hard case that he should be deprived of his rights to appeal because the Provincial Commissioner misapprehended his powers. Since if the application had been refused the appellant might still have had time to make an application to the Court. I sympathize to some extent with the appellant although I need hardly point out that he is responsible for any step he takes; but I am afraid this Court has no power under the rules to extent the time within which an application for leave to appeal can be made. It is bound by its own rules and were it to give leave itself now to the appellant to prosecute his appeal it would in effect be doing the very thing which the

138

Provincial Commissioner did. This is not a case falling within Order 4 Rule 2 of the Rules of the Supreme Court, where parties may by consent enlarge or abridge the time and in case of their failure to agree the Court may order that the time for doing the acts provided for in the rules be enlarged or abridged. The limitation of the time within which appeals may be brought stands on a different footing and I know of nothing in the rules of the Supreme Court under which this Court may enlarge the time.

In Popoola vs. Alonge (1980) FNLR 388 where Ogundare, J., (as he then was) held at page 391 to wit:

In my view, the modern trend is that the Court must endeavour to do substantial justice without undue regard to technicalities. Where the defects complained of are of such nature that go to the root of the matter and affect the jurisdiction of the Court (as in Nnamdi (supra) and Odiwu (supra) where a procedure completely different to the one authorized by statute was adopted) the Court is bound to strike out the proceedings. But where the defects relate merely to non-compliance with the Rules of Court, the Court, in its discretion, may amend

139

the proceedings.?

See also Oloto vs. LEDB (1930) 13 WACA 57 at page 61.

Arising from these judicial precedent has developed the principle that an applicant seeking to invoke the discretionary powers of a Court of Justice has to comply with the provisions of the Constitution, the Statute or Rules of Practice and Procedure governing proceedings in the Court that the reliefs or remedies are sought to be entitled to justice. In Williams vs. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145 a page 152 as follows:-

?When a Court is called upon to make an order for extension of time within which to do certain things (i.e. extension of time prescribed by the Rules of Court for taking certain procedural steps), the Court ought always to bear in mind that Rules of Court must prima facie be observed and that it, therefore, follows that in order to justify the exercise of the Court?s discretion in extending time within which a procedural step has to be taken there must be some material upon which to base the exercise of that discretion; any exercise of the Court?s discretion where no material for such exercise has been placed

140

before the Court would certainly give a party in breach of the Rules of Court uninhibited right to extension of time and the provisions as to time within which to take procedural steps set out in the Rules of Court would, indeed, in such circumstances, have no legal content.?

If the Rules of Practice and Procedure applicable in the Nasarawa State High Court provides that a defendant served a statement of claim with frontloaded documents is to file a statement of defence frontloaded with documentary evidence, if any, fails to do so but chooses to raise defences on points of law in an affidavit without any documentary exhibits, that is a violation of the intention of the Rules Maker. A ?violation? is defined at page 1705 of Black?s Law Dictionary (ante) as:

?Violation:- 1. An infraction or breach of the law; a transgression. See INFRACTION. 2. The act of breaking or dishonoring the law; the contravention of a right or duty. 3. Rape; ravishment. 4. Under the Model Penal Code, a public-welfare offense. In this sense, a violation is not a crime. See Model Penal Code, paragraph 1.04(5). ? violate, vb. ? violative.?

141

The process may be held ?void?, ?void ab initio? or ?voidable? depending on the facts and circumstances of each case as contained in the Black?s Law Dictionary (supra) page 1709:

?Void:- 1. Of no legal effect; null. The distinction between void and voidable is often of great practical importance. Whenever technical accuracy is required, void can be properly applied only to those provisions that are of no effect whatsoever ? those that are an absolute nullity. Void, avoid, vb. ? voidness, n.

?Void ab initio:- Null from the beginning, as from the first moment when a contract is entered into. A contract is void ab initio if it seriously offends law or public policy, in contrast to a contract that is merely voidable at the election of one party to the contract. (Cases: Contracts, 98, 136.

?Voidable:- Valid until annulled; especially, (of a contract) capable of being affirmed or rejected at the option of one of the parties. This term describes a valid act that may be voided rather than an invalid act that may be ratified. ? Also termed avoidable.

142

(Cases: Contracts, 98, 136):

?Most of the disputed questions in the law of infancy turn upon the legal meaning of the word ?voidable? as applied to an infant?s acts. The natural meaning of the word imports a valid act which may be avoided, rather than an invalid act which may be confirmed, and the weight of authority as well as reason points in the same direction. Certainly, so far as executed transfers of property are concerned the authority of the decisions clearly supports this view.? 1 Samuel Williston, The Law Governing Sales of Goods paragraph 12, at 28 (3rd edition, 1948).

?The promise of an infant surety is voidable as distinguished from void. The infant may expressly disaffirm or assert the defense of infancy when sued at any time before the expiration of a reasonable time after majority.? Laurence, P. Simpson, Handbook on the Law of Suretyship, 82 (1950).?

Where the legislature provides in Sections 13-14 and 24(1), (2)(a) of the Court of Appeal Act, 2004 that an appellant seeking to appeal against an interlocutory order or decision of a Federal High Court or a High Court of a State is to

143

obtain leave of the Court below or of the Court of Appeal showed no evidence of having complied with the provisions of the Statute governing interlocutory appeals, that is a matter of jurisdiction which without calling on the parties or learned Counsel, may be raised suo motu and determined by the Court of Appeal. In arriving at this decision, I am guided by the authority of Okafor vs. Idigo (1984) 1 SCNLR 481 where the Supreme Court held at page 494 as follows:

?(7) The dismissal of the plaintiff?s claim in an action for a declaration of title does not mean that the land belongs to the defendant (Nwankwo Udegbe vs. Anachuna Nwokafor (1963) 1 All NLR 417; Privy Council Judgments by Olisa Chukwura, page 994; Eboha vs. Anakwenze (1967) NMLR 140). Unless there is a finding on the evidence that the defendant had established his ownership of the land. Duedu vs. Jiboe (1966) 1 WLR 1040; Amos Ogbesusi Aro vs. Salami Fabolude (1983) 2 SC 75.?

In Ogembe sv. Usman (2011) 17 NWLR (Pt. 1277) 638, Galadima, JSC held at page 656 paragraphs ?C?- ?F?: ?Because of its importance, a point of jurisdiction can be

144

raised at any time and even viva voce for the first time during argument. The Court can suo motu raise it

In Effiom vs. C.R.S.I.E.C. (2010) 14 NWLR (Pt.1213) 106 appears the following passage at pages 133-134: –

?On the issue of whether it was proper for the Court below to raise the issue of locus standi of the appellants suo motu and determine same without hearing from the parties, it has long been settled that no Court is entitled to do so. The elementary principle is that it is wrong for a Court to raise any issue of fact suo motu and decide upon it, without giving the parties an opportunity to be heard on it.

This is so because the Court is bound by and therefore confined to the issues raised by the parties. Where however the Court raises an issue suo motu which it considers material for the proper determination of the case, it must give parties, particularly the party likely to be adversely affected by the issue, to be heard. See Ajuwon vs. Akanni (1993) 9 NWLR (Pt.316) 182 at 190; Ajao vs. Ashiru (1973) 11 SC 23 at 39-40; Atanda vs. Lakanmi (1974) 3 SC 109; Kuti vs. Jibowu (1972) 1 All NLR (Pt.II) 180; R.T.E.A.N. vs. N.U.R.T.W. ?

145

(1992) 2 NWLR (Pt.224) 381; Finnih vs. Imade (1992) 1 NWLR (Pt.219) 511 AT 537.

While the Court has a duty to give the parties the opportunity to be heard on any issue it raises suo motu a failure to do so does not necessarily lead to a reversal of its decision. To warrant an appellate Court?s reversal of the decision, the appellant must go further to show that the failure to hear him on the point occasioned some miscarriage of justice. See Imah vs. Okogbe (1993) 9 NWLR (Pt.316) 159 at 178; Olubode vs. Salami (1985) 2 NWLR (Pt.7) 282.

As I indicated above this principle that the Court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies mainly to issues of fact. In some special circumstances, the Court can raise an issue of law or jurisdiction suo motu and without hearing the parties decide upon it. Tukur vs. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 is instructive on this point. In that case although the issue of venue was not raised and argued by the parties in their briefs, it being an issue of jurisdiction was taken by the Court.

146

In the instant case therefore the Court below would be at liberty to raise the issue of locus standi of the appellants if such an issue was relevant to the proper determination of case. It is to be noted however that the issue of the locus standi of the plaintiffs/appellants was raised at the trial Court and effectively determined therein in favour of the appellants. The respondent did not appeal against it and so it was not an issue before the Court below. It was irrelevant and so the Court?s deliberation on it was an exercise in futility. It is not surprising therefore that the appellants have not shown in any way that they suffered any miscarriage of justice by the lower Court?s deliberation on the issue of their locus standi. Accordingly this issue is also resolved against the appellants.?

Where the Constitution provides that parties are to file proceedings in the Courts of Justice in the State where their fundamental right have been breached or violated but the appellant filed the proceedings in a Court of Justice out of jurisdiction the processes were held to be a nullity.?

In Alhaji Isa Bayero vs. Mainasara & Sons Ltd. (2007) All FWLR 1285 (Pt.359)

147

Ariwoola, JCA (as he then was) reproduced the argument of learned Counsel as to whether an agent acting on behalf of a known principal is sueable from pages 1315 to 1318 to wit:

?The facts and circumstances of this case as disclosed by the affidavit in support of the writ of summons under the ?undefended list? procedure are that the appellant herein who was at the time material to this case, the Chairman of Kano State branch of the United Nigeria Congress Party, sometime in 1997 requested the respondent to print certain stationery materials for his part and he undertook that all the bills shall be paid promptly. The items and materials requested by the appellant were printed and delivered to the appellant?s party, the United Nigeria Congress Party (U.N.C.P). This is clearly shown on Exhibit ?MA2?-?MA9? attached to the affidavit in support of the claim. Subsequently, the respondent raised invoices containing the cost of the materials and items so delivered to the party. These invoices were addressed to the party, United Nigeria Congress Party. These facts are contained in paragraph 3(c) of the

148

respondent?s affidavit and Exhibits ?MA10? and ?MA11? therewith attached.

But when the invoices were not settled, the respondent sent a letter of demands to ?Alhaji Bello Isa Bayero, Chairman, United Nigeria Congress Party (U.N.C.P.) Kano State? requesting that the cost of printing of posters and other forms of U.N.C.P. Kano Chapter be settled immediately. The respondent wrote yet a second letter of demand, this time around addressed to:

?The Chairman,

United Nigeria Congress Party,

Kano State Secretariat, 200 Road,

Kano.?

demanding that the outstanding sum as contained in the invoices earlier delivered to him be settled without further delay.

In the affidavit in support of the intention to defend the respondent?s claim before the trial Court, the appellant had categorically stated that the transaction with the respondent was not entered in his personal capacity but as Chairman of his party, the United Nigeria Congress Party and on its behalf. The appellant further stated that none of the materials was ever delivered to him but to the party, and that at the time

149

the respondent allegedly delivered the said items he had ceased to be the Chairman of the party. This fact was said to be known to the respondent who was also a member of the same party as the appellant.

On the above, as clearly stated in the appellant?s affidavit, learned Counsel submitted that the necessary inference is that the appellant did not give an undertaking in his personal capacity to pay the debt of the party but that as the Chairman of the party he would ensure that the party paid for the materials. He further submitted that the appellant acted only as agent of a disclosed principal, as a result he is not personally liable for the debts of the principal who was well known to the respondent.

Learned appellant?s Counsel submitted that an agent acting on behalf of a known and disclosed principal is not liable for his acts of agency. The principal but not the agent is to be sued for any act of an agent within the scope of the agent?s authority. He cited; PWOL vs. Union Bank Plc (1999) 1 NWLR (Pt.588) 631; Vassilev vs. Paas Industries Limited (2000) FWLR (Pt.19) 418, (2000) 12 NWLR (Pt.681) 347.

On the issue of the

150

capacity in which the appellant dealt with the respondent, whether as an agent of a disclosed principal or personally, the respondent contended that having contracted with his personal name and having failed to indicate clearly that he was an agent, he contracted personally but not as agent and he should be bound and liable. The respondent?s Counsel submitted that the undertaking made by the appellant on Exhibit ?MA1? did not disclose the fact of agency. He urged the Court to resolve the issue in favour of the respondent and dismiss the appeal.

By Exhibit ?MA1? attached to the respondent?s claim on page 5 of record headed ?United Nigeria Congress Party? (U.N.C.P.), the appellant as Chairman of the party Kano State branch placed order for certain items from the respondent through its managing director/chief executive, Alhaji Nasiru Abali Ismail. The letter (Exhibit ?MA1?) directed the secretary to the party to discuss with the Managing Director/Chief Executive (MD/CE) of the respondent on the items to be ordered and the prices. At the bottom of the letter, the following undertaking actually

151

feature;

?NB: I Bellow Isa Bayero, Chairman, U.N.C.P. Kano State have directed Ad?hama I. Muktar, Kano State Secretary of the United Nigeria Congress Party (U.N.C.P.) to discuss the above issue with you and I equally agree to settle your bills promptly.?

The undertaking was no doubt signed by the appellant and witnessed by the said Secretary to the party. The various delivery notes attached as exhibits to the claim show that delivery of the items requested were made to the United Nigeria Congress Party at its office in Kano State, not to any known individual in particular. It is interesting to note that there was nothing to controvert the facts in the affidavit in support of intention to defend, to the effect that the respondent was aware, being also a member of the same party with the appellant, that the appellant placed the order for the materials for and on behalf of their party (U.N.C.P.). And that before the delivery was made to the party he had ceased to be the Chairman. Perhaps that explains the reason why the demand letters were sent to Chairman of the party but not to the appellant in his personal capacity. Exhibit

152

?MA12? dated 28th August, 1997 written by the respondent?s printing Manager was addressed to the appellant as Chairman of the party and a copy was sent to the Chairman of the respondent. Exhibit ?MA13? dated 28th May, 1998 written by the Chairman of the respondent himself was addressed, this time not to the appellant but to whoever was the Chairman of the Untied Nigeria Congress Party, Kano.

I am therefore satisfied that the respondent was aware that the appellant was merely acting as agent for his disclosed principal which was their party, U.N.C.P. The general law is that a contract entered by an agent acting in the scope of his authority for a disclosed principal is in law the contract of the principal and the principal but not the agent is the proper person to sue or be sued upon such contract.

In the instant case, as the Chairman of the party when the contract was entered by the appellant, he was merely acting as agent of the principal. See Ataguba & Co. vs. Gura Nigeria Limited (2000) FWLR (Pt.24) 1522; 21 NSCQR 720 at 739.

Agency has been described as a fiduciary relationship created by express or

153

implied contract or by law, in which one party (the agent) may act on behalf of another party (the principal) and bind that other party by words or action. An agent therefore is one who is authorized to act for or in place of another; a representative.

Generally speaking, anyone can be an agent who is in fact capacity of performing the functions involved. The agent normally binds not himself but his principal by the contracts he makes. See Black?s Law Dictionary, 8th edition, pages 67 and 68.

In Ogbonnaya N. Godwin vs. Christ Apostolic Church (1998) 14 NWLR (Pt.584) 162, the Supreme Court held that the term ?agent? includes any person who acts for another in the capacity of deputy, steward, rent collector or any other agent or trustees.

It is clear from the record that the appellant in his capacity as the Chairman of the party, the United Nigeria Congress Party in Kano State, was acting for the party as its agent. He can therefore not be held liable for the contracts he entered on behalf of his known principal the United Nigeria Congress Party. I am satisfied that there was enough evidence before the lower Court from the

154

affidavits and various exhibits, to convince the trial Judge that indeed the proper party to be sued was not before the Court. To get to the root of this, the Court should have transferred the suit to the general cause list and ordered pleadings to be filed.

An agent acting on behalf of a disclosed and known principal as in the instant case, is not liable for his acts of agency. Only the principal should be liable. See: Engineer Vassil Vassilev vs. Paas Industries Nigeria Limited & Ors. (2000) FWLR (Pt.19) 418, (2000) 12 NWLR (Pt. 681) 347 at 359; Leventis Technical Limited vs. Petrojessica Entr. Ltd. (1992) 2 NWLR (Pt.224) 459. In the circumstance, issue No.1 is accordingly resolved in favour of the appellant.?

Order 20 Rule 11(1)-(2) of the Court of Appeal Rules, 2016 is couched as follows:-

?11(1) The Court shall have power to give any judgment or make any order that ought to have been made, and to make such further order as the case may require including any order as to costs.

(2) The powers contained in Sub-rule (1) of this Rule may be exercised by the Court, notwithstanding that the appellant may have asked that

155

part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.?

Order 4 Rule 9(3) of the Court of Appeal Rules, 2016 also provides as follows:

?9(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question; and if it appears to the Court that any such wrong or miscarriage of justice as is mentioned in Sub-rule (2) of this Rule affects part only of the matter in controversy or one or some only of the parties, the Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder.?

I am of the candid opinion that justice demands that this appeal should not only be dismissed with N100,000.00 (One Hundred Thousand Naira) cost to the respondent but I should render a decision in favour of the respondent as per the Statement of Claim supported with the frontloaded documents under Order 4 Rule 9(3) and Order 20 Rule 11(1)-(2) of the Court of Appeal Rules, 2016.

156

Appearances:

No appearance for both the Appellant and the RespondentFor Appellant(s)

No appearance for both the Appellant and the RespondentFor Respondent(s)

Appearances

No appearance for both the Appellant and the RespondentFor Appellant

AND

No appearance for both the Appellant and the RespondentFor Respondent