Edicomsa International Inc. And Associates V. Citec International Estates Ltd. (2005)

LawGlobal-Hub Lead Judgment Report

RHODES-VIVOUR, J.C.A.

This is an appeal by the plaintiff/appellant against the ruling of the Hon. Justice Hussein Muktar of the Abuja High Court, delivered on the 23rd day of July, 2003.

The plaintiff/appellant sued the defendant/respondent on a writ of summons issued out of the Abuja High Court on 31/3/03. The plaintiff’s claim was for breach of contract, orders of injunction and an account.

Upon being served the writ of summons and statement of claim, the defendant filed its statement of defence on 16/5/03. Learned Counsel for the defendant/respondent filed a notice of preliminary objection on ten grounds contending in the main that the court lacks jurisdiction to entertain the suit. The objection was subsequently argued on three grounds to wit:

“1. The plaintiff is not a juristic person.

2. The plaintiff’s case as disclosed in the statement of claim is not one that can be entertained by this court, and
3. The cause of action is premised on an illegal contract.”

The learned trial Judge heard counsel and in a considered ruling delivered on 23/7/2003, the plaintiff’s/appellant’s action was struck out on the grounds of incompetence. This is what the learned trial Judge said:

“By section 54(2) of the Companies and Allied Matters Act any act of the plaintiff in defiance of the provision of subsection (1) therefore shall be void. The alleged contract or project upon which this suit is brought having been entered into and being executed in Nigeria without the plaintiff having been incorporated or registered in Nigeria as a corporate entity is illegal, null and void by the combined effect of sections 54(1) and (2) and 55 of the Companies and Allied Matters Act, 1990. The plaintiff’s action in this suit is therefore a non-starter being void ab initio. The objection succeeds on this ground. It follows that the plaintiff’s void action must be and is hereby struck out.”

As the plaintiff was dissatisfied with the ruling of the learned trial Judge, it appealed to this court. Briefs were duly filed and exchanged in accordance with the rules of this court. For the appellant, its counsel, P.R. Onoja, Esq. identified a sole issue for determination of the appeal. It reads:

“Whether the learned trial Judge was not in error when he held at a preliminary stage of the trial that the alleged contract, subject matter of the suit having been entered into or being executed in Nigeria without the plaintiff having been incorporated in Nigeria as a legal entity is illegal, null and void”.

On the other side of the fence, the respondent’s learned counsel, Mrs. J.O. Adesina also had a sole issue for determination. It reads thus:

“Does the appellant have any legal capacity to carry on the business in Nigeria and consequently to maintain this action.”

The respondent also filed a respondent’s notice which was deemed duly filed on 22/3/05. It was incorporated in the respondent’s brief of argument. In response, the appellant filed an appellant’s reply brief of argument on 4/4/05.

At the hearing of the appeal on 26/10/05 the appellant was unrepresented.

Learned Counsel for the respondent adopted his brief and proffered oral submissions in support of the argument in his brief. In support of the respondent’s notice, he relied on Bob Manuel v. Briggs (2003) 5 NWLR (Pt. 813) p. 323.