ZAMFARA STATE GOVT & ORS v. ZEVHAGO (NIG.) CO.
(2022)LCN/16659(CA)
In the Court of Appeal
(SOKOTO JUDICIAL DIVISION)
On Wednesday, May 11, 2022
CA/S/111/2020
Before Our Lordships:
Ali Abubakar Babandi Gumel Justice of the Court of Appeal
Saidu Tanko Hussaini Justice of the Court of Appeal
Mohammed Danjuma Justice of the Court of Appeal
Between
1. ZAMFARA STATE GOVERNMENT 2. HON. COMM. MIN. OF HEALTH ZAMFARA STATE 3. SCHOOL OF NURSING AND MIDWIFERY, GUSAU 4. ATTORNEY GENERAL, ZAMFARA STATE APPELANT(S)
And
ZEVHAGO NIGERIA COMPANY RESPONDENT(S)
RATIO
WHETHER OR NOT A LIMITED LIABILITY COMPANY CAN SUE AND BE SUED
Against the backdrop that a limited liability company is a separate legal entity, it necessarily means that it may enforce rights by suing or others may also sue it to enforce their rights against it. It is because of this important factor that in civil litigations, a limited liability company when suing must plead and prove its corporate identity. It is therefore not surprising that the Plaintiff/Respondent in the instant matter pleaded its corporate status in paragraph 2 of the statement of claim, though without pleading its Certificate of incorporation as it ought to have. However, having simply sued as ZEVHAGO NIG. COMPANY, without more, does not show that it is a limited liability company with legal capacity to sue and be sued.
To the extent that the Respondent sued as ZEVHAGO NIG. COMPANY without the addition of the word “LIMITED” as is statutorily required of all limited liability companies leaves its real status to speculation. And because it did not sue as a partnership or under a business name, the entire written address of learned counsel Mr. Ogana, on behalf of the Respondent is of no moment and with all due respect, totally unhelpful and a total misconception of the law and facts in the circumstance. The omission of the word “limited” at the end of the name ZEVHAGO NIG. COMPANY, is therefore fatal to the real status and legal capacity of the Respondent to sue or be sued if it is truly a limited liability company duly registered under the CAMA and asserted in paragraph 2 of the statement of claim. PER GUMEL, J.C.A.
ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgement): This is an appeal against the judgment of the Zamfara State High Court delivered on 23rd May, 2019 in Suit Number ZMS/GS/M.634/2018, per Shinkafi, J.
The Appellants herein were the Defendants before the High Court of Zamfara State and the within named Respondent was the Claimant. In a statement of claim dated 13th November, 2018, without a specific date of filing, the Claimant claimed the sum of N36,756,691.52 (Thirty-Six Million, Seven Hundred and Fifty-Six Thousand, Six Hundred and Ninety-One Naira, Fifty Two Kobo) with 20% interest per annum until the liquidation of the judgment sum. The statement of claim was frontloaded with a number of copious documents that were to be relied on at the trial of the action. The Defendants/Appellants were duly served with the Writ of Summons, statement of claim and its supporting processes. They failed to file a statement of defence as required by Order 11 Rule 4 of the Zamfara State High Court Civil Procedure Rules (High Court Rules).
Being faced with the above scenario, the learned Judge of the lower Court invoked the provisions of Order 11 Rule 5 (2) of the High Court Rules and entered judgment for the Claimant/Respondent in the sum of N36,756,691.52 with 10% interest from the date of the judgment until the full liquidation of the entire judgment sum. The lower Court further ordered for N100,000 costs against the Defendants/Appellants in favour of the Claimant/Respondent.
The Appellants were dissatisfied with the judgment and appealed to this Court in a notice of appeal dated 29th June, 2020 sequel to an order of this Court for extension of time to appeal made on 23rd June, 2020. It contains 5 grounds of appeal. The record of appeal was transmitted out of time on 9th October, 2020. Upon an application filed on 3rd February, 2021, the record of appeal was deemed properly compiled and transmitted on 15th March, 2021.
To argue the appeal, learned counsel Mr. Sirajo Abdullahi, filed the Appellants’ brief on 22nd March, 2021. The Respondent’s brief was filed on 7th July, 2021. From the 5 grounds of appeal, the Appellants formulated the following 3 issues for determination in this appeal. In paragraph 3.0 at page 5 of the Respondent’s brief of argument, learned counsel on behalf of the Respondent adopted the 3 issues for determination formulated on behalf of the Appellants. The issues are: –
1. Whether having regards to the circumstances and evidence relied upon by the trial lower Court in suit No: ZMS/GS/M.634/2018; the decision of the trial lower Court has not occasioned a miscarriage of justice on the part of the Appellants. (Distilled from grounds 1 and 3)
2. Whether the trial lower Court erred in law when it overlooked the Appellants’ Preliminary Objection and also declined to refer the matter for arbitration pursuant to the clause contained in the agreement executed by the parties dated the 11th of May 2010. (Distilled from grounds 4 and 5)
3. Whether the judgment of the trial lower Court was not obtained by fraud and liable to be set aside by this Honourable Court. (Distilled from ground 2)
At the hearing of the appeal, the Court suo motu raised the question of the legal personality of the Plaintiff/Respondent and its capacity to sue in the name endorsed on the Writ of Summons and statement of claim. Respective learned counsels were ordered to file and exchange written addresses. Learned counsel obliged accordingly. The written address of the Appellants was filed on 16th February, 2022 while that of the Respondent was filed on 17th February, 2022. Thereafter, on 17th February, 2022, learned counsel Mr. Abdullahi, for the Appellants adopted and relied on the filed and exchanged written address of the Appellants so too, Mr. Ogana, of counsel, on behalf of the Respondent.
I have carefully read and considered the written arguments and submissions of the respective learned counsels in their written addresses. Before any further remarks, it must be pointed out that the Respondent sued simply as ZEVHAGO NIG. COMPANY, without any indication if that name is a trade name or a name under which an individual or individuals do business. The turning point in this matter appears to be paragraph 2 of the statement of claim wherein it was averred thus:
“The plaintiff is a limited liability Company in Nigeria. (sic) Having its registered office at No. 2 Bakassi road II, Barnawa Kaduna.”
The statement of claim can be found at pages 3 to 5 of the record of appeal. The Certificate of Incorporation of the Plaintiff/Respondent was not pleaded. At page 6 of the record of appeal, containing part of the witness statement on oath one Mr. Michael Iwuomah, described himself as the Managing Director and Chief Executive Officer of the Plaintiff/Respondent.
Since the famous and evergreen statement of Lord Mc Naughten in the vintage case of SALOMON V. SALOMON & CO. LTD (1897) AC 22 the concept of corporate legal personality stands out and remains fundamental to corporate organisations. Under the rule in Salomon V. Salomon (Supra), corporate legal personality simply refers to the legal personality of a Company as one that is distinct, separate and independent from that of its members from the date of incorporation. Similarly, it envisages the legal status of one regarded by the law as a person, the legal conception by which the law regards a human being or an artificial entity as a person. This has fully been captured and enhanced by the provisions of Sections 32 and 37 of CAMA, 2004.
Against the backdrop that a limited liability company is a separate legal entity, it necessarily means that it may enforce rights by suing or others may also sue it to enforce their rights against it. It is because of this important factor that in civil litigations, a limited liability company when suing must plead and prove its corporate identity. It is therefore not surprising that the Plaintiff/Respondent in the instant matter pleaded its corporate status in paragraph 2 of the statement of claim, though without pleading its Certificate of incorporation as it ought to have. However, having simply sued as ZEVHAGO NIG. COMPANY, without more, does not show that it is a limited liability company with legal capacity to sue and be sued.
To the extent that the Respondent sued as ZEVHAGO NIG. COMPANY without the addition of the word “LIMITED” as is statutorily required of all limited liability companies leaves its real status to speculation. And because it did not sue as a partnership or under a business name, the entire written address of learned counsel Mr. Ogana, on behalf of the Respondent is of no moment and with all due respect, totally unhelpful and a total misconception of the law and facts in the circumstance. The omission of the word “limited” at the end of the name ZEVHAGO NIG. COMPANY, is therefore fatal to the real status and legal capacity of the Respondent to sue or be sued if it is truly a limited liability company duly registered under the CAMA and asserted in paragraph 2 of the statement of claim.
A Court should not engage in speculations as it is not part of the judicial exercise but mere curious guesswork. See J. K. RANDLE V. KWARA BREWERIES LTD (1986) 1 SC 1 as explained and applied by the Supreme Court in ACB PLC & ANOR V. EMOSTRADE LTD (2002) 8 NWLR (PT. 770) 501.
According to the decision in THOMAS V. OLUFOSOYE (1986) 1 NWLR (PT. 18) 669, a Plaintiff has to have locus standi. In other words, the legal capacity to maintain its suit against the defendant, this presupposes that to determine whether the plaintiff is the proper person to institute the action as a threshold determination, regard must be had to the averments in the statement of claim vis-a-vis the subject matter. In this respect, the necessary parties, that is the Plaintiff and the defendant and the concurrence of facts giving rise to enforceable claims must co–exist. A plaintiff who has no locus standi has no business at all in the case as it is a necessary pre–condition. Because ZEVHAGO NIG. COMPANY was not shown to be a trade name or a limited liability company, it lacks the capacity to sue or be sued. Therefore, its action against the Defendants, leading to this appeal, is incompetent and an abuse of process. The lower Court lacked jurisdiction to entertain the action in this appeal as presently constituted.
The default judgment delivered on 23rd May, 2019 in Suit Number ZMS/GS/M.634/2018 was rendered without jurisdiction and it is accordingly set aside. Suit Number ZMS/GS/M.634/2018 is incompetent and an abuse of process. It is accordingly struck out. I make no order for costs.
SAIDU TANKO HUSSAINI, J.C.A.: I had the advantage of reading in draft, the lead ruling delivered by my Lord, ALI A. B. GUMEL, PJCA, with whom I agree in toto the reasoning and circulation.
Persons who can sue and be sued are those recognised in law to have juridical personality as in Natural persons as human beings and/or Artificial persons as in corporate personalities, such as companies. It is the incorporation or registration of the artificial person that gives life to its existence as a legal entity which can sue and be sued. When the corporate nature of an artificial person is challenged, the duty lies on that entity to prove its legal existence by the production of its certificate of incorporation otherwise any action instituted by such a Body is bound to fail for lack of legal capacity to sue or be sued.
It is on this premise I am one with the reasoning and conclusion in the lead judgment hence action instituted by the Respondent at the trial Court was/is incompetent, the action, being dead on arrival (DOA).
MOHAMMED DANJUMA, J.C.A.: I have the privilege of reading in draft, the ruling just delivered by my learned brother ALI A. B. GUMEL JCA. I agree with the reasoning and conclusion that the appeal is allowed and the judgment of the trial is set aside. I abide by all the consequential orders in the ruling.
Appearances:
Mr. Sirajo Abdullahi, Ag. DCL, Zamfara State Ministry of Justice, Gusau For Appellant(s)
Mr. Samson Ogana For Respondent(s)
