JOHN & ORS v. AKHUAMHENKHUN & ORS (2021)

JOHN & ORS v. AKHUAMHENKHUN & ORS

(2021)LCN/15126(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Wednesday, May 05, 2021

CA/B/348/2014

Before Our Lordships:

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

IN THE MATTER OF THE ESTATE OF LATE CHIEF M.D.JOHN 1. MARTINS DANJUMA JOHN 2. MRS V. T. OKOJIE 3. MR. B. F. JOHN APPELANT(S)

And

1. SIR AUGUSTINE AKHUAMHENKHUN 2. M. A. JOHN 3. MRS B. S. WEKPE (EXECUTORS/TRUSTEES OF CHIEF M. D. JOHN’S ESTATE) 4. MRS. P. O. OBANO RESPONDENT(S)

RATIO

LEGAL EFFECT OF THE REGISTRATION OF A COMPANY UNDER THE COMPANIES AND ALLIED MATTERS ACT

It is trite law that a company duly registered under the Companies and Allied Matters Act, 2004 is regarded as a distinct legal entity from each and every shareholder or member of the company. This Court in WILLIAMS ESQ & ANOR v ADOLD/STAMM INTERNATIONAL NIG. LTD & ANOR (2013) LPELR 20356 (CA); “… The law is equally well settled, that once a company is duly registered under the Companies Act, it assumes the cloak of a corporate entity distinct from the subscribers, directors, shareholders, employees and members thereof….It was aptly held by the Supreme Court that — “A company registered under the companies Act, 1968 as a Limited Liability Company is a legal entity distinct from its members.” … Most instructively, the combined effect of the principle enumerated in the foregoing authorities is that a company duly registered under the companies Act must be regarded as a distinct (separate) legal entity from each and every shareholder or member thereof, no matter the extent of the shares he may have therein. As emphatically held by the Apex Court in the case of MARINA NOMINEES LTD v FBIR (SUPRA) – Thus, it is a separate entity from any of its shareholders, no matter how many shares he may hold and the company cannot be an agent of its subscribers, Per Kazeem, J.S.C.; at paragraphs.” per SAULAWA, J.C.A. (PP. 31 – 34, PARAS. F – A). See; UNION BANK NIG. LTD v PENNY MART LTD (1992) NWLR (PT. 240) 228 @ 237; SALOMON v SALOMON (SUPRA); LEE v LEE’S FARMING (1961) A – C 12; MARINA NOMINEES LTD v FBIR (1986) 2 NWLR (PT. 20) 48; OKOMU OIL PALM CO. LTD v ISERHIENRHIEN (2001) 3 SC 140, @ 163 PARA 25. See also, Section 37 of the Companies and Allied Matters Act which provides thus; “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 assets 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.” PER ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.

WHETHER A TESTATOR IS AT LIBERTY TO DISPOSE OF HIS PROPERTY IN ANY MANNER HE DEEMS FIT

The apex Court held on whether a testator is at liberty to dispose of his property in any manner he deems fit in ASIKA & ORS v ATUANYA (2013) LPELR – 20895 SC: “A testator has the liberty to dispose of his property in the way and manner he likes and no one can modify the Will. See Igboidu v. Igboidu (1999) 1 NWLR (Pt.585) p. 27.” per NGWUTA, J.S.C (P. 27, PARAS. F – G). PER ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.

DEFINITION OF THE WORD “VENTURE “

The Merriam—Webster definition describes it as; a venture is a business enterprise in which the expectation of gain is accompanied by risk of loss or failure. It is any entrepreneurial enterprise that is created to make money. Yes, that encompasses a lot of different things, anything from restaurants to multimillion Silicon Valley, tech start-ups to a stand can be considered a business venture. To bring it closer home; types of business Ventures can be Sole proprietorship, Limited liability company, General partnership, Limited liability partnership, Corporation. PER ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.

POSITION OF THE LAW ON HOW TO ASCERTAIN WHETHER OR NOT A COMPANY HAS BEEN DULY REGISTERED UNDER THE COMPANIES ACT

In NJEMANZE v SHELL BP PORT HARCOURT (1966) LPELR — 25295 (SC), the Court held that to ascertain if a company has been duly registered under the Companies Act, is that a company is registered under the Companies Act and has a registered name, this can easily be found out; it has to be shown on a sign board at its place of business pursuant to SECTION 65(1) of CAMA 2004. PER ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.

ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Edo State High Court, Benin Judicial Division delivered by ERAMEH, J. on 30th May, 2014 in Suit No. B/355/OS/2011, wherein the lower Court entered judgment in favour of the Claimants (Respondents).

A summary of the facts is that; by the last Will and Testament of Chief Matthew Danladi John dated 18th October, 2005; particularly paragraph 15 of the said Will vest powers and duties on the Respondents who are appointed executors/Trustees in the Will to manage the properties at Nos. 5, 5A and 7, Liberty Road, GRA, Benin City housing and the corporate seat of KOSO INTERNATIONAL HOTEL.

The Appellants are shareholders and directors respectively of Kurat Ventures Limited of which Koso International Hotel is said to be a division; the 4th Respondent is also a beneficiary, shareholder and director of Kurat Ventures Ltd.

After the Will was admitted to probate, the Appellants refused the Respondents as Executors/Trustees of the said Will from taking control of the management of the said properties and Koso International Hotel

therein to the chagrin of the Respondents on the ground that it was part of the Kurat Ventures Ltd and they had no power to control same who instituted this action.
The lower Court entered judgment in favour of the Plaintiffs/Respondents.

Dissatisfied with the judgment, the Appellants filed their Amended Notice of Appeal, Amended brief of argument and Amended reply on 13th March, 2020 but deemed 18th February, 2021 both were settled by K. O. Obamogie, Esq. of K. O. OBAMOGIE & CO wherein the following issues were distilled for determination.
1. Whether the business of a company duly registered under the Companies and Allied Matters Act can form part of a testator’s estate to be managed and/or administered by the Executors/Trustees of the testator who are not themselves directors of the company. (Grounds 2, 3 and 4)
2. Whether the judgment of the lower Court is not against the weight of evidence adduced before it. (Ground 1).

The 1st — 3rd Respondents in like manner filed their brief on 2nd April 2019 but deemed 18th February, 2021 settled by Uwa Okoh, Esq of DAN OSE OKOH (SAN) & CO wherein a sole issue was raised for

determination;
Whether from the pleadings, oral and documentary evidence, the Learned Trial Judge was right when it granted all the Reliefs sought (Grounds 1, 2, 3 and 4).

APPELLANTS’ SUBMISSIONS
Arguing issues 1 and 2 together, Counsel submits that it is long recognized that a limited liability company is a distinct legal entity having its own life separate and apart from its shareholders and directors, thus, the company is at law a different person altogether from the subscribers to the memorandum and its directors. That it is completely immaterial that one person has the controlling shares of the company and that it continues to do its business after incorporation precisely the same way the business was carried on before registration. SALOMON v SALOMON & CO. LTD (1897) A. C 22 AT 51; MARINA NOMINEES LTD v FEDERAL BOARD OF INLAND REVENUE (1990) N. S. C. C. (VOLUME 21, PART 1) 1 AT 6 – 7; OKATTA v THE REGISTERED TRUSTEES OF THE ONITSHA SPORTS CLUB (2008) 13 NWLR (PART 1105) 632 AT 645; A.I.B LTD v LEE & TEE INDUSTRIES LTD (2003) 7 NWLR (PART 819) 366 AT 395, PARAGRAPHS B – C; K. R. P. C v ONUORA (2000) 3 WRN 1 AT S; DIKE v KAY – KAY CONSTRUCTION LTD

(2017) 14 NWLR (PART 1584) 1 AT 68 — 69 were relied on.

Also citing Section 37 of the Companies and Allied Matters Act, 2004, Counsel submits that the juristic personality of registered company is recognized. That the fact that Kurat Ventures Limited is a registered company was not in dispute; Koso International Hotel is a division of Kurat Ventures Limited was also not in dispute and paragraphs 6 & 7 of the Appellant’s Counter affidavit was not controverted or challenged and are therefore deemed admitted by the Respondents. EGBUNA v EGBUNA (1989) 2 N.W.L.R. (PART 106) 773 AT 777; ADEBIYI v UMAR (2012) 9 NWLR (PT. 1305) 279 AT 296 – 297; N. U. H. P. S. U. v IMO CONCORDE HOTELS LTD (1994) 1 N.W.L.R. (PART 320) 306 AT 323 – 324.

It is the submission of the Appellants that the deceased testator, Chief M. D. John also recognized the juristic personality of Kurat Ventures Ltd in his last Will and testament attached as Exhibit A to the affidavit filed in support of the 1st — 3rd Respondents’ originating summons at paragraphs 15, 16, 17 and 18, and being a limited liability company cannot be wholly owned by a single entity

or one person; FEDERAL BOARD OF INTERNATIONAL REVENUE v INTEGRATED DATA SERVICE LTD (2009) 8 NWLR (PART 1144) 615 AT 644, PARA G was referenced. That Koso International Hotel being a division of Kurat Ventures Limited which has a separate and distinct legal personality from the late Chief Matthew Danladi John and cannot form part of the estate of the said Chief Matthew Danladi John JP and cannot be managed by the Executors/Trustees of his Estate who are not Directors of the company; GEORGEWILL v EKINE (1998) 8 NWLR (PT. 562) 454 AT 466.

OLAWEPO v SECURITIES AND EXCHANGE COMMISSION (2011) 16 NWLR (PART 1172) PAGE 122 AT 145 – 146; ODUTOLA HOLDINGS LTD v LADEJOBI (2006) 12 NWLR (PT. 994) 321 SC were cited to submit that Directors duly appointed in accordance with the provisions of the Companies and Allied Matters Act that can direct and manage the affairs of a company. That the lower Court finding that the management of Koso International Hotel by the Appellants who are the directors and shareholders of Kurat Ventures Limited is an infraction of the Will of Chief Matthew Danladi John was gravely wrong and runs against paragraphs 16 and 18 of the last

Will of the Testator. Section 63 – 66 of the Companies and Allied Matters Act, 2004; DIKE v KAY-KAY CONSTRUCTION LTD, SUPRA, 1 AT 68 – 69; LONGE v FIRST BANK OF NIGERIA PLC (2010) 6 NWLR (PART 1189) 1 AT 42 – 43; FIRST GUARANTEE PENSION LTD v NATIONAL PENSION COMMISSION & ANOR (2016) 10 NWLR (PART 1519) 39 AT 49 – 50.
That Section 244 (3) of the Companies and Allied matters Act, 2004 criminalizes non directors to hold themselves out as a director.

Counsel contends relying on Exhibits A, B, C, C1 and C2 attached to the 1st Appellant’s counter affidavit ought to have swayed the lower Court to hold that Kurat Ventures Limited and Koso International Hotel being commercial concerns duly registered under the CAMA, 2004 must be administered in accordance with the provisions of the Act to the exclusion of any contrary directives or testamentary wishes. OLAWEPO v SECURITIES AND EXCHANGE COMMISSION (SUPRA).
Counsel humbly urges the Court to resolve issues 1 & 2 in favour of the Appellants.

1ST – 3RD RESPONDENTS’ SUBMISSIONS
It is the submission of the 1st — 3rd Respondents that from the totality of the affidavit evidence before

the lower Court as contained in the affidavit in support of the originating Summons, the Counter Affidavit, the Reply to Counter Affidavit as well as Exhibits tendered, the lower Court did a proper evaluation of all facts before him before arriving at his findings.

That it is a settled law that it is both elementary and also a fundamental principle of interpretation of statute, Wills or contract that where the words of a Statute, Wills or contract are plain, clear and unambiguous, effect should be given to them in their ordinary and natural meaning except where to do so will result in absurdity. NNONYE v ANYICHIE (2005) NWLR (PT. 910) 623; SHELL PETROLEUM DEV. CO (NIG) LTD v F. B. I. R (1996) 8 NWLR (PT. 466) 256 AT P. 285; AGBOOLA v UBA PLC (2011) 11 NWLR (PT. 1258) 375; NYAME v FRN (2010) 7 NWLR (PT. 1193) 344 were cited in aid.

Picking the operative words in paragraph 15 of the last Will of the testator are “Property”, “invest”, “management” and “division” definitions in the Black’s Law Dictionary 8th Edition, Oxford’s Advanced Learner’s Dictionary 8th Edition, Counsel submits that the plain,

clear and unambiguous application of paragraph 15 of the last Will of Chief Matthew Danladi John (deceased) is that the Trustees/Executors (1st — 3rd Respondents) of his Will have the authority and power to run and control his series of property lying, situate at No. 5 Liberty Road, GRA, Benin City, No. 5A Liberty Road, GRA, Benin City, and No 7, Liberty Road, Benin City housing the corporate entity of KOSO INTERNATIONAL HOTEL and Koso International Hotel which is a part and important unit of Kurat Ventures Limited.

1st – 3rd Respondents argue that what the most crucial question is whether the testator can do what he has done?
In answering the above poser, Counsel cited Section 3 (1) of the WILLS LAW OF BENDEL STATE OF NIGERIA as applicable in Edo State and submitted that the testator can make a Will but the devise, bequeath or disposition therein shall not be inconsistent with the established Customary Law and shall, at any rate be governed by the relevant Customary Law; OKE v OKE (1974) 3 SC 1; IDEHEN v IDEHEN (1991) 6 NWLR (PT. 198) 382; AGIDIGBI v AGIDIGBI (1996) 6 NWLR (PT. 454) 300; LAWAL – OSULA v LAWAL – OSULA

(1995) 9 NWLR (PT. 419) 259 was cited in aid.
Citing Section 131 of the Evidence Act, 2011, BURAIMOH v BAMGBOSE (1989) 3 NWLR (PT. 109) 352 AT P. 365 in submitting that the proof lies on him who asserts and the learned trial Judge was therefore right in the evaluation of the evidence as there is no evidence to show that the properties in question belong to Kurat Ventures Ltd.

The next poser raised by the 1st — 3rd Respondents is the legal implication of Koso International Hotel being a division of Kurat Ventures Limited? In answering the poser, Counsel relying on MOBIL OIL PLC v IAL 36 INC (2000) 77 LRCN 918 AT P. 955; MUSA v EHIDIAMHEN (1994) 3 NWLR (PT. 334) 544 AT 556 – 557; M. O. KANU, SONS & COMPANY LIMITED v FIRST BANK OF NIGERIA PLC (1998) 11 NWLR (PT. 572), submits that the testator in his last Will described Koso International Hotel; a division of Kurat Ventures Ltd, each have a distinct and separate legal personality. Each own its own assets, property, and are controlled and managed separately.

That the lower Court put into consideration the above position

of the law when it held that though Koso International Hotel is a division of Kurat Ventures Ltd, they have distinct legal personalities, each own its assets, properties and are also managed and controlled separately. It is the further submission of the Counsel that the Appellant did not establish before the trial Judge whether Koso International Hotel is a limited liability company or a business name or partnership, therefore the lower Court was right in concluding that Chief Matthew Danladi John can by his Will divest the management of the said series of property and Koso International Hotel to the Trustees/Executors of his Will as stated in paragraph 15 of his Will.

That the series of property lying and situate at No. 5, 5A and 7, Liberty Road, GRA, Benin City are not subject to Customary Law and none affects their disposal and their provisions of the Companies and Allied Matters Act and the decided cases relied upon by the Appellants in their brief are inapplicable and cannot invalidate the testator’s devise of his property more so as the Appellants agree that all the properties in question belong to the testator.

APPELLANTS’ REPLY
In reply to the 1st — 3rd Respondents’ submission at pages 4 – 8 of their brief of argument, the Appellants submit that the provisions of the Wills Law, Cap 172, Laws of the defunct Bendel State of Nigeria, and the authorities copiously cited by the 1st — 3rd Respondents in support are irrelevant to the determination of this Appeal. That the core issue for determination is whether the business of Koso International Hotel which is duly registered under the Companies and Allied Matters Act, 2004 can form part of the estate of the late Chief M. D. John to be managed and/or administered by the Respondents who are not themselves directors of the company.

OKOLO v UBN LTD (1998) 2 NWLR (PART 539) 618 AT 639 was cited in aid submitting that the 1st – 3rd Respondents misconceived the issue for determination and instead invited this Honourable Court to determine whether the said Late Chief M. D. John had the powers to devise his property to the Respondents, that this Court can discountenance the 1st – 3rd Respondents’ arguments in pages 4 — 8 of their brief of argument.

In reaction to the contention in pages 9 – 11 of the

Respondents, the Appellants submit that the fact of Koso International Hotel being a corporate entity is not in doubt and the 1st – 3rd Respondents never disproved or contradicted the Appellants’ assertion on this issue at the trial Court. AJIDAHUN v AJIDAHUN (2000) 4 NWLR (PART 654) 605 AT 614; USMAN v ABUBAKAR (2001) 12 NWLR (PART 728) 685 AT 706; ADELEKE & ORS v IYANDA & ORS (2001) 13 NWLR (PART 729) 1 AT 22 – 23 were cited in submitting that this honourable Court is urged to accept and act on the un-contradicted evidence of the Appellants at the lower Court.

It is the contention of the Appellants that MUSA v EHIDIAMHEN SUPRA & M. O. KANU SONS & COMPANY LTD v FIRST BANK OF NIGERIA PLC SUPRA relied on by the 1st – 3rd Respondents are irrelevant to the determination of this appeal, as the questions for determination in the said cases are radically different from the issues raised in this appeal.

In conclusion, the Counsel urges this Court to discountenance the erroneous contentions of the 1st — 3rd Respondents and allow this appeal; LAWRENCE OKAFOR & ORS v FELIX NNAIFE (1987) 9 – 11 S. C PAGE 105 AT 118 was cited.

RESOLUTION
Taking a cursory look at the issues distilled by the parties respectively in this appeal, it is evident that they are framed differently, yet seemingly linked. The issues distilled by the Appellants will be adopted for determination being the aggrieved and both will be resolved together, the sole Issue raised by the Respondents would also be taken into account.

The crux of this appeal is whether a business duly registered under the Companies and Allied Matters Act, 2004 can form part of a testator’s estate to be managed and/or administered by the Executors/Trustees of the testator who are not themselves directors of the company?

shareholders, employees and members thereof.
…It was aptly held by the Supreme Court that — “A company registered under the companies Act, 1968 as a Limited Liability Company is a legal entity distinct from its members.” … Most instructively, the combined effect of the principle enumerated in the foregoing authorities is that a company duly registered under the companies Act must be regarded as a distinct (separate) legal entity from each and every shareholder or member thereof, no matter the extent of the shares he may have therein. As emphatically held by the Apex Court in the case of MARINA NOMINEES LTD v FBIR (SUPRA) – Thus, it is a separate entity from any of its shareholders, no matter how many shares he may hold and the company cannot be an agent of its subscribers, Per Kazeem, J.S.C.; at paragraphs.”
per SAULAWA, J.C.A. (PP. 31 – 34, PARAS. F – A).
See; UNION BANK NIG. LTD v PENNY MART LTD (1992) NWLR (PT. 240) 228 @ 237; SALOMON v SALOMON (SUPRA); LEE v LEE’S FARMING (1961) A – C 12; MARINA NOMINEES LTD v FBIR (1986) 2 NWLR (PT. 20) 48; OKOMU OIL PALM CO. LTD v ISERHIENRHIEN (2001) 3 SC 140, @ 163 PARA 25.

14

See also, Section 37 of the Companies and Allied Matters Act which provides thus;
“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 assets 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.”

The relevant law in relation to Wills in Edo State is Sections 3 (1) and 2 (a – d) of the Wills Law Cap 172 laws of Bendel State of Nigeria as applicable in Edo state provide thus;
”3 (1) subject to any customary law relating thereto, it shall be lawful for every person to devise, bequeath or dispose of, by his Will executed in manner hereunder required, all real estate and all personal estate which he shall be entitled to, either in law or

equity, at the time of his death and which if not so devised, bequeathed and dispose would devolve upon the heir at law, of him or if he became entitled by descent, of his ancestor or upon his executor or administrator.
The power hereby given shall extend to —
(a) Estate pur autre vie whether there shall or shall not be any special occupant thereof and whether the same shall be freehold or of any other tenure and whether the same shall be a corporeal or an incorporeal hereditament.
(b) All contingent, executor or other future interest in any real or personal estate, whether the testator may or may not be ascertained as the person or one of the persons in whom the same respectively may become vested and whether he may be entitled thereto under the instrument by which the same respectively were created or under any disposition thereof by deed or Will.
(c) All rights of entry for conditions broken and other right of entry, and
(d) Such of the same estates, interest and rights respectively and other real and personal estate as the testator may be entitled to at the time of his death, notwithstanding that he may become entitled to

the same subsequently to the execution of his Will.
2. “Personal estate” includes lease hold estate and other chattels, real, moneys, shares of government and other funds, securities for money (not being real estates), debts choses in action rights, credits, goods and all other property whatsoever which by law devolves upon the executor or administrator and any share or interest therein,
“Real estate” includes messuages, lands, rent and hereditaments, whether freehold, or any other tenure and whether corporeal, incorporeal or personal and or any undivided share thereof and to any estate, right or interest (other than a chattel interest) therein.”

The above are necessary provisions covering Wills in Edo State.
I shall reproduce paragraphs 15, 16, 17 and 18 of the Will and Testament of Late Chief Matthew Danladi John for clarity purposes;
Paragraph 15;
I DIRECT THAT THE SERIES OF MY PROPERTY LYING AND SITUATE AT NO 5, LIBERTY ROAD GRA BENIN CITY, 5A LIBERTY ROAD GRA, BENIN CITY, NO 7, LIBERTY ROAD, BENIN CITY, WHICH SAME WAS BOUGHT FROM MR GAB OSAWARU ALL NOW BEING THE SEAT AND BODY OF THE COPORATE ENTITY KNOWN AS KOSO

INTERNATIONAL HOTEL WHICH ITSELF IS A DIVISION OF KURAT VENTURES LIMITED BE INVESTED IN THE MANAGEMENT OF THE TRUSTEES/EXECUTORS AS DETAILED IN PARAGRAPH TWO OF THIS WILL.
16. I DIRECT THAT THE TOTAL SHARE CAPITAL AND ASSESTS OF KOSO INTERNATIONAL HOTEL BE BEQUEATHED PROPORTIONATELY AS DETAILED AGAINST EACH NAME OF MY FOUR CHILDREN IN SCHEDULE E.
SCHEDULE E
NAME OF CHILD PERCENTAGE
1. MARTIN DANJUMA JOHN – 30%
2. MRS PATRICIA OMOYE OBANO (NEE JOHN) – 24%
3. MRS VIVIAN TALATU OKOJIE (NEE JOHN) – 23%
4. MR BERNARD EKEATA JOHN – 23%
17. I DIRECT THAT THE SHARES ALLOTED TO MY CHILDREN IN PARAGRAPHS 16 OF THIS WILL SHALL NOT BE SOLD OR TRANSFERED EXCEPT TO MY GRAND CHILDREN.
18. I DIRECT THAT MY FOUR CHILDREN WHO BY VIRTUE OF THEIR BEING SHAREHOLDERS AS EMPOWERED BY PARAGRAPH 16 OF THIS WILL SHALL BE ENTITLED TO A YEARLY DIVIDEND OF THE AMOUNT OF PERCENTAGE SHOWN AGAINST THEIR NAMES IN SCHEDULE F. A 20% OF SAME SHALL BE PLOUGHED BACK YEARLY AS COPORATE RESERVE.”

The late JOHN divested/shared his interests in the company among his four children, the totality of the shares percentage divided among his children when

summed up is 100% percent, which is a total divesting of all shares, meaning he held exclusively and solely in the said Koso Hotel exclusively.

The apex Court held on whether a testator is at liberty to dispose of his property in any manner he deems fit in ASIKA & ORS v ATUANYA (2013) LPELR – 20895 SC:
“A testator has the liberty to dispose of his property in the way and manner he likes and no one can modify the Will. See Igboidu v. Igboidu (1999) 1 NWLR (Pt.585) p. 27.”
per NGWUTA, J.S.C (P. 27, PARAS. F – G).

It is necessary to state that before this, the Testator in paragraph 15 has clearly stated that Koso international Hotel is itself a division of Kurat Ventures Limited but in paragraph 16 divided the shares, then in paragraph 18 he directed that the said shareholders are entitled to yearly dividend of the accrued amount of percentage of the profit accruable from Koso International Hotel.

To begin with the Kurat Ventures Limited is the holding company to understand the status of Kurat Ventures Limited.
The Merriam—Webster definition describes it as; a venture is a business enterprise in which the

expectation of gain is accompanied by risk of loss or failure. It is any entrepreneurial enterprise that is created to make money. Yes, that encompasses a lot of different things, anything from restaurants to multimillion Silicon Valley, tech start-ups to a stand can be considered a business venture.

To bring it closer home; types of business Ventures can be Sole proprietorship, Limited liability company, General partnership, Limited liability partnership, Corporation.
Therefore, a community reading of paragraphs 15 the will makes it obvious that the Koso International Hotel is a one of the ventures of Kurat Ventures Limited. From the COUNTER AFFIDAVITS and EXHIBITS attached to the originating summons, these are company documents registered in 2010 after the death of the Testator, none was attached for Koso International Hotel.

A perusal of the affidavit of the 1st Respondent is to the effect that the will vested the management of the properties and Koso International Hotel in the Executors/Trustees in paragraphs 4, 6, 7, 8 & 9.
What exactly is the status of Koso International Hotel? What did the Testator mean by a division of Kurat

Ventures Ltd? This calls for an examination of the evidence adduced by the Appellants who assert that it is an arm and so governed by the CAMA, 2004 which is the counter affidavit at pages 20 – 37 of the records. See particularly paragraphs 6, 7, 8, 9, 11 & 13.

At page 26 is the copy of form CO7 PARTICULARS OF DIRECTORS, none was attached showing the OWNERSHIP arrangements before to enable the Court know if Koso International Hotel was mentioned therein, nothing as per before the death of Late John on the registration of Koso International Hotel if any was attached. I have also read copiously the minutes of the meeting of the Executors and Beneficiaries at Koso International Hotel on 2nd April, 2010 together with the lawyer to the estate; IYOHA & IYOHA at pages 24 and 27 of the record and still come to the understanding that Koso International Hotel was not a registered incorporated company or venture attached to Kurat Ventures Ltd.

Most illuminating is the report at page 31 of the record; that at the banks to where the Testator’s accounts were, it was found that Koso International Hotel had its own account and was run fully by the Testator

100% (hundred percent) meaning a sole proprietor. He did not register it under the Corporate and Allied Matters Affairs under the Act and the alternative suggestion is that it was a partnership, see; line 1, page 33 of the record.
Now, a partnership connotes that there was someone else or some entity with interest in the business but the Testator did not capture that in his Will and we are bound by it. Furthermore, in paragraph 16 of the Will he directed that the total share capital of Koso International Hotel be shared by his four children a total of 100%, therefore for purposes of argument where lies the partners share? I therefore hold that Koso International Hotel is neither incorporated nor registered under part B or C of the CAMA. I hold that Koso International Hotel is a sole proprietorship run solely by the Testator, legally it has no link with the Kurat Ventures Ltd, more so that no Articles of Association or Memorandum of Understanding of Kurat Ventures Ltd was presented to the Court where this would be established.

I hold that it is construed against them, withholding relevant document which would work against them. Section 167 (d) of the Evidence Act, 2011 operates against them;

“Evidence which could be and is not produced be unfavourable to the person who withholds it.”
Failure to adduce the evidence of past registration of incorporation process before the death of the Testator raises the presumption.
SEE MOZIE & ORS v MBAMALU & ORS (2006) LPELR – 1922 (SC); ONWUJUBA & ORS v OBIENU & ORS (1991) 1 (SC); CHIEF JOEL E. BABATOLA v MRS MAGARET ADEWUMI (2011) LPELR – 3945(CA).
Having not been registered under the Companies and Allied Matters Act as an arm of Kurat Ventures Ltd, it was run as a sole proprietorship simpliciter but not legally under or as a (division of) the Kurat Ventures Limited.
Hence, the shares totaled 100% owned by him were shared in paragraph 16 of the WILL.

I am in agreement to this extent with the lower Court, I am fortified by the attachments of the Appellants to their counter affidavit because in all the documentation of the Plaintiffs they could only find Kurat Ventures Ltd registration and not Koso. By virtue of this, there was no share capital to be distributed by virtue of the CAMA. Neither from Form CO2 tendered is it

mentioned that Kurat Ventures Ltd has shares/stake in Koso International Hotel or as a venture.

Based on this principle of ventures and being described as an arm of Kurat Venture Ltd can it be divested under the Will? It is beyond doubt that should Koso International Hotel be registered it will have its own and be a separate entity but it is an arm and does not have any form of registration, it is glued to the Kurat Ventures Ltd. The cases of UAC v EHIDAMWEN (SUPRA); M. O. KANU & SONS v FIRST BANK (SUPRA) do not apply, they are different, the division therein were clearly identified as subsidiary with “limited” had shareholding, there is nothing like that in this case, it’s just an arm of a business with a different identification, a loose relationship so to

speak.
I liken it to where a university registered a Guest house company and has a bar with huge confectionaries which makes bread and barbecues in different departments with identifiable names, neither of them are registered but are operated loosely under the Guest house company. Would it then be said that it is by association or names confer upon each department (so to speak) a registered venture? I am afraid no terminologies have been loosely used but this does not change the legal implication. Koso International Hotel was aptly described as a division of Kurat Ventures Ltd, but it is in fact and indeed a sole business solely run by the Testator.
Under the Edo State Estate Law cited above and the CAMA 2004, shares held in a company held by a Testator can be divested by a Will as long as it is in accordance with the law.
Therefore, having established the status of the KOSO INTERNATIONAL HOTEL, it goes without saying that it is one of his personal estate and he has the power to vest same under the management of the Trustees and Executors of his Will as in paragraph 15 thereof;
I DIRECT THAT THE SERIES OF MY PROPERTY LYING AND SITUATE AT

NO 5, LIBERTY ROAD GRA, BENIN CITY, 5A LIBERTY ROAD GRA, BENIN CITY, NO 7, LIBERTY ROAD, BENIN CITY WHICH SAME WAS BOUGHT FROM MR GAB OSAWARU, ALL NOW BEING THE SEAT AND BODY OF THE COPORATE ENTITY KNOWN AS KOSO INTERNATIONAL HOTEL WHICH ITSELF IS A DIVISION OF KURAT VENTURES LIMITED BE INVESTED IN THE MANAGEMENT OF THE TRUSTEES/EXECUTORS AS DETAILED IN PARAGRAPH TWO OF THIS WILL.
The company (KURAT VENTURES LIMITED) is a corporate entity separate and distinct entity from its shareholders or members; it is run/managed by the board of directors through board meetings and general meetings. See; MARINA NOMINEES LTD v FEDERAL BOARD OF INTERNAL REVENUE, Section 37 of CAMA 2004.
The long and short of the above is that Kurat Ventures Limited and NOT Koso International Hotel cannot be managed by the Executors and Trustees of the Will, which is in line with the intendment of the Will.
Therefore, I agree with the Appellants’ Counsel to this extent that Sections 63 – 66 of CAMA, 2004 makes that non – directors such as Executors and Trustees cannot be involved in the management of the company unless made directors.
The learned trial Judge held

that since there was nothing showing the status or KOSO INTERNATIONAL HOTEL, it could be divested in a Will, I agree, paragraphs 15, 16, 17, is sufficient information that it is a corporate arm of the Kurat Ventures Ltd, the lower Court was mindful of the erroneous use of words used by the Testator such as “shares and division, invest” and thereby escaped the pitfall the Appellants. These words cannot confer what is not on Koso International Hotel said arm or by product of the Kurat Venture Ltd. The adage that a label does not make the content of the package applies herein.
It needs to be emphasised that it was obvious that the only documents presented were that of Kurat Ventures Ltd which is the only incorporated company, furthermore, there was evidence from the exhibits that there are existing bank accounts in the name of the KOSO INTERNATIONAL HOTEL none was presented to the lower Court.

Again, paragraph 18 of the Will shows the intention of the Testator for the Executors/Trustees to manage Koso International Hotel to ensure its survival as he directs that, a 20% of the profit be ploughed back into the hotel yearly as corporate reserve.

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I have not found any wrong evaluation of the evidence on record by the lower Court; in fact, it should be commended for such elucidating analysis of the peculiar facts and issues herein.

I must say in closing that the Testator did not draft this Will but a legal practitioner or solicitor, it underlines the importance of Wills drafting that can easily be misinterpreted by adding what is not and rakes up family squabbles which end up in litigation for years.

Furthermore, the legal drafters of WILLS have to be cautious and do same with great care and diligence, explaining the legal terminologies and legal implications of words to assist the said Testator properly with understanding how to properly vest his assets, properties; legal and personal to whom he deems fit. Once a Will has been read, it cannot be explained nor the intention behind any vesting/gift by the drafter. Our Courts are being inundated with several suits by family squabbles over WILLS which are results from implications of drafting problems. What is worth doing is worth doing well!
A word is enough for the drafters of Wills.

Having settles issue 1, issue 2 has been rendered

academic.
I resolve issue 1 and 2 in favour of the Respondents.

On the whole, the appeal lacks merit and fails, it is dismissed and the judgment of U. I. ERAMEH, J. of the Edo State High Court is hereby affirmed.

Cost of N300,000 is awarded to the Respondents.

JOSEPH EYO EKANEM, J.C.A.: I read before now the lead judgment of my learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. which has just been delivered. I agree with the reasoning and conclusion therein which I adopt as mine in dismissing the appeal.
I abide by the order as to costs made in the lead judgment.

BALKISU BELLO ALIYU, J.C.A.: I had the privilege of reading in draft the judgment prepared by my learned ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. that has just been delivered. I agree with the reasoning and conclusion reached therein, that the appeal lacks no merit and deserves to be dismissed. I join him to also dismiss the appeal. I affirm the judgment of the Edo State High Court delivered on the 30th May 2014 in respect of Suit No: B/355/OS/2011. I abide by the order of cost made in the lead judgment.

Appearances:

L. EDEKO For Appellant(s)

EHINON OKOH For Respondent(s)