Goodwill & Trust Investment Ltd. & Anor V. Witt & Bush Ltd (2011)

LAWGLOBAL HUB Lead Judgment Report

M. MUKHTAR, J.S.C.

This is an appeal against the judgment of the court of Appeal, Lagos Division, which struck out the suit of the plaintiffs/appellants. The plaintiffs’ claim against the defendant at the trial court are as follows, as per the statement of claim:-

“(i) The sum of N567,941.60k being contractual lease sum on rental of 250 KVA Rolls Royce power generating set for 85 days from 8th June, 1998 to 31st August, 1998 and banking charges of N1,275.00 on Defendants Dishonoured Cheques No. 303 and 304 dated 5th June, 1998 and 30th June, 1998 respectively.

(ii) Return of the plaintiffs’ 250k Rolls Royce power Generating set to the plaintiffs’ yard at 2/4 Sanusi Ibrahim Street Mile 12, Ketu Lagos State.

ALTERNATIVELY

Payment of the sum of N1.5 million naira being the contractual value of the said 250 KVA generating set.

(iii) Rental sum of N6,666.67k daily from 1st September, 1998 until the generator is returned to the plaintiffs, yard.

(iv) The sum of N2,000,000.00 (Two Million Naira only) as general damages for the Defendants breach of contract and detention of Plaintiffs’ power Generating.

(v) Interest in the sums claimed at 21% per annum from 1st September, 1998 until the total accrued sum is paid

and the generator returned.

(vi) The cost of this action.”

Pleadings were exchanged by the parties; to wit there was amendment, and a reply to the amended statement

of defence. Briefly put the plaintiffs leased a 250 KVA Roll Royce Power generating set to the defendant on 5th of June 1998 for an agreed fee of N200,000.00 for an initial period of 30 days. The terms of the lease was signed on 6th of June, and the defendants technicians tested it before it was removed to the site of a third party, Bristow Helicopters Ltd. on 6th June, 1988, the defendant wrote a letter to the plaintiffs repudiating the lease, and in fact stopped the cheque issued to the plaintiffs. The defendant refused to return the generator to the plaintiffs’ yard despite repeated demand.

The defendant denied most of the plaintiffs’ allegations stating that it stopped the cheques it issued to the 1st plaintiff because its client, a third party found the generator to be unserviceable and useless. The third party, Bristow Helicopters Limited complained that the generator failed to work, and the 1st plaintiff was informed of the malfunctioning. In spite of some changes in some parts of the generator, there were still problems; hence the defendant repudiated the contract on 15th of June, 1998. The defendant stated that before it repudiated the agreement, a 500 KVA generator was moved to its client’s site by Tate Industries to avoid further embarrassment the 1st plaintiff have caused it. The defendant denied that it was obliged to return the plaintiffs’ unserviceable generating set to its site having incurred financial loss as a result of the defaulting generating set hired. The defendant therefore counter-claimed as follows against the plaintiffs:-

“(a) The sum of N5,000,000.00 as general damages for the first plaintiff’s breach of contract to supply the

Defendant with a serviceable generator for the use of the latter’s clients.

(b) The sum of N250,000.00 as special damages being the financial cost in providing alternative generating set to the premises of her client.

(c) Interest on the said sum of N5,250,000.00 at 21% from 1st of September 1998 until the total accrued sum is paid.

(d) An order dismissing the claim of the 1st and 2nd plaintiffs with substantial cost against the Defendant for being frivolous, vexatious and an abuse of the process of the court.

(e) Cost against the 1st and 2nd plaintiffs.”

Parties adduced evidence, and the learned trial judge after evaluating same entered judgment in favour of the plaintiffs, but not in the sums claimed, but with certain variations under each head of damages claimed. The defendant was not satisfied with the judgment, so it appealed to the Court of Appeal, which allowed the appeal,

and found thus:-

“The trial court has no competence to entertain the suit for want of competent plaintiff. The appeal being meritorious is allowed. The judgment of the court below is set aside and the plaintiffs suit is hereby struck out with N5,000.00 costs to the appellant.”

The plaintiffs have now appealed to this court on five grounds of appeal against the decision of the Court of Appeal. As is the practice in this court, and according to the rules of this court, briefs of argument were exchanged by the parties, to wit there is also an appellants, reply brief of argument. The briefs were adopted by learned counsel at

the hearing of the appeal. The learned counsel for the appellants specifically referred to pages 47 and 258 of the record of proceedings, whereas the learned counsel for the respondent referred to pages 11 and 12 of their brief

of argument.

The appellants in their brief of argument formulated six issues for determination, which are:-

“7. Whether the Court of Appeal was right in its decision that the 1st Plaintiff/Appellant was not a juristic person.

2. Whether the Court of Appeal was right to have determined this appeal on the sole question of the juristic personality of the 1st Plaintiff/Appellant and the inadmissibility of ‘Exhibit A’ without the leave of the court of

Appeal – “Exhibit A,” having been admitted at the trial without objection to its admissibility.

3. Whether the Court of Appeal did not fail in its bounden duty to do substantial justice when it failed to call further evidence to resolve the fundamental question of the juristic personality of the 1st Plaintiff/Appellant or in the alternative order a new trial by the trial court for a determination of the crucial point of the juristic personality of

the 1st plaintiff/Appellant.

4. Whether the Court of Appeal did not err in law and occasion a serious miscarriage of justice when it sacrificed the doing of substantial justice on the platter of technical argument.
5. Whether the Court of Appeal did not err in law when it allowed the Defendant/Respondent to get away with its approbation and reprobation by using the law of the land as an instrument of fraud.

The above issues were adopted by the respondent.

Basically, this appeal revolves around the juristic personality of the appellants, and a single issue would have

sufficed for the determination of the appeal. The numerous issues formulated wouldn’t have been necessary, but in the interest of justice, and in order to satisfy the parties that substantial justice is being done, I will consider the argument proffered to cover each issue in the treatment of this appeal. I will commence with issues (1) and (3) in the appellants’ brief of argument. The learned counsel for the appellants in canvassing argument under this issue, has contented that the learned Court of Appeal, having found that the trial court failed in its bounden duty to determine a question duly submitted to it for determination, also failed to do the right thing that would ensure the doing of substantial justice between the parties when it failed to take steps to resolve the fundamental question of the juristic personaliry of the 1st plaintiff/Appellant.

He sought the aid of Order 1 Rules 19(2) and 20(3) on general powers of the Court of Appeal.

According to learned counsel, the Court of Appeal, having failed to do that, this court could right the wrong, pursuant to order 2 Rule 12 (1) and, (2) of the Supreme Court Rules. He placed reliance on the cases of Ibrahim v. Ojomo 2004 4 M.J.S. page 143, Akibu v. Opaleye 1974 11 SC. 189, and 1984 4 S.C. 84.

Learned counsel for the appellants also referred this court to the cases of Adebayo v. Shogo 2005 M.J.S.C. page

43, Adisa vs Oyinwola 2000 6 S.C. part 11 page 47, Owoso v. Adeleke 2004 30 W.R.N. page 93, and Attorney-General of Oyo State v. Fairlakes Hotel 1982 2 S.C. page 7.

In reply, the learned counsel for the respondent referred to the pleadings of the parties where he said issues were joined on this issue of juristic personality. Even though the learned trial judge omitted to make a finding on this

issue, the Court of Appeal reviewed the proceedings of the trial court under section 16 of the court of Appeal Act and made a finding on the point. The Certificate of Incorporation admitted in evidence was certified by the

Registrar of the High Court, an act which the learned counsel submitted was not appropriate, as a Certificate of Incorporation can only be certified by the office of the Registrar General who is in custody of the certificate of Incorporation. He referred to sections 97 (1) (e), (2)(c), 111 and 112 of the Evidence Act, cap 112, 1990, Sections 36(1),634, (i) and (2) of the Companies And Allied Matters Act, 1990, and the case of Okulade v. Alade 1976 All NLR 56. Learned Counsel finally submitted that the burden of proof that the 1st Plaintiff/Appellant is a juristic person lies on the appellants, and Exhibit A do not meet the statutory requirements referred to above, so the Court of Appeal was right in holding that the Appellants failed to prove that the 1st appellant is a juristic person. He placed reliance on the cases of P.G.S.S. Ikachi v. Igbudu 2005 12 NWLR part 940 page 543, 2001 NWLR part 712 page 508, Madukolu & Ors. v. Nkemdilim 1962 All NLR page 581, and sections 135(1) and (2) and 136 of the Evidence Act, supra. Learned counsel for the respondent submitted that the plaintiffs/appellants had the burden of proof to discharge by tendering a genuine Certificate of Incorporation from the Company Registration Authority, which they failed to do woefully.According to learned Counsel Exhibit A is a document within the definition of Section 2 of the Evidence Act, 1990, it is a public document within the meaning of Section 109 of the Evidence Act, and can only be

admissible in Evidence under Section 112 only, on the condition that it was certified by the appropriate officer under Section 11A of the Evidence Act and Section 36(1) of the Companies and Allied Matters Act, 1990.

In order to deal with the submission above it is imperative that I reproduce some salient averments in the plaintiffs’ statement of claim here below. They read as follows:-

“1. The first plaintiff is a registered company under the laws in Nigeria with office at 214, Sanusi Ibrahim Street, Off Oniyanrin Street, Mile 12, Near Ketu, Lagos State.

2. The second plaintiff is the Managing Director and Chief Executive Officer of the 1st Plaintiff with the same address.”

In its amended statement of defence the defendant joined issues on the above as follows:-

“2. The defendant denies paragraphs 1, 2, 5, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18 and 19 of the statement of claim and shall at the trial of this suit put the plaintiffs to proof (sic) strictly the allegation of facts contained in the said paragraphs.

3. The Defendant admits paragraph 1 of the statement of claim only to the extent that the first plaintiff has its office at 2/4, Sanusi Ibrahim Street, off oniyanrin Street, Mile 12, Near Ketu, Lagos State but denies the allegation that the plaintiff is registered under the relevant laws of the Federal Republic of Nigeria.
4. In answer to paragraph 2 of the statement of claim, the second Defendant shall at the trial of the suit be

required to proof (sic) the allegation of facts contained therein.

To prove the above averments, the 2nd plaintiff testified thus:-

“I am Johnson Omoniyi Ashaolu. I am a Fellow of the Institute of Chartered Accountants of Nigeria. I know the 1st plaintiff and I am it’s Managing Director. It is a Registered company. This is it’s original Certificate of Incorporation.

Yes I have the certified True copy of my company’s certificate of Incorporation. This is it. (certified True copy) (Raises it up). Counsel seeks to tender it. Admitted as EXHIBIT “A”.”

Under Cross-examination, the 2″d plaintiff had the following to say on the efficacy of Exhibit A.

“Exhibit A is the certified true copy of the Certificate of Incorporation of the 1st plaintiff. It was certified at the office of the Commissioner of Oaths at the Lagos State High Court Ikeja.”

It is not in dispute that the trial court did not make a finding on this issue of the juristic personality of the 1st plaintiff. There was ample and sufficient evidence before the court to enable it make a finding on the issue. In fact, apart from the evidence, the learned counsel for the defendant addressed the court on this issue in his address. Consequently, the lower court was seized of all the materials required to invoke the provision of Section 16 of the Court of Appeal Law 1976 to review the case before it. It did not need any other further evidence before making

the finding it made on the issue. In similar vein this court is also seized of all the facts required, and does not need to resort to order 2 Rule 12 (1) and (2) of the Supreme Court Rules supra for any further evidence, as urged by the learned counsel for the appellant. A situation where further evidence will be necessary arises only when the

evidence relevant to the issue in controversy to determine an issue and ensure substantial justice is absent and deplete from the proceedings. This court or the court below does not ordinarily go out of its way to fish for evidence to fill a vacuum that does not exist in a case, just to satisfy a party, when in fact all the pleadings and evidence, that are necessary material are already part of the record of proceedings before it.

It is on record that the plaintiffs tendered a photocopy of a document which was certified by the registrar of the High Court of Lagos State, Ikeja, when in fact, if the 2nd plaintiff was desirous of tendering only a copy of the registration document, it should have been certified by an official of the Corporate Affairs office, the document

being a public document that is subject to the provisions of Sections 109 – 112 of the Evidence Act supra. But

then one should be mindful of the fact that the original copy of the certificate of Incorporation was stated to be in possession of the plaintiffs in this case as is contained in the record of proceedings vide the evidence of the 2nd plaintiff which has been reproduced above.

The pertinent question to ask here, is, if they had the original certificate and actually brought it to court on the day of hearing, why did the witness not tender it I am inclined to subscribe to the argument of the respondent that perhaps the plaintiffs did not possess the original Certificate of Incorporation. If they didn’t, there was nothing that prevented them from tendering the copy, as permitted by sections 93 and 95 of the Evidence Act supra, but then

it has to be done properly according to the dictates of the provisions of sections 109 – 112 supra, which the plaintiffs failed to do in this case. Authorities abound that the content of documents may be admitted as secondary evidence, once they have been properly certified. See Anatogu v. Igwe Iweka II (Eze Obosi) and Others 1995 8 NWLR part 415 page 547, Obadina family and Executor of Chief J. A. Ajao v. Ambrose family and others 1969 1 NWLR 25, and Daggash v. Bulama 2004 14 NWLR part 892

page 144.

In addition to the above exposition of the law, I will reproduce the provisions of Sections 36(1) and 634 of the Companies and Allied Matters Act 1990, at this juncture. Section 36(1) states:-

“The certificate of Incorporation shall be prima facie evidence that all the requirements of this Decree in respect of registration and of matters precedent and incidental to it have been complied with and that the association is a company authoized to be registered and duly registered under this Decree.

634(1) Any person may, on payment of the fees prescribed in part 111 of Schedule 77 to this Act inspect

documents or obtain Certificates of Incorporation of copies of extracts from documents held by the commission

for the purposes of this Act.

(2) Where a copy of extract from any document registered under this Act is certified by the commission to be a

true copy or extract, it shall in all proceeding be admissible in evidence as of equal validity with the original documents, and it shall be unnecessary to prove the official position of the person certifying the copy or extract.”

By virtue of Section 36 supra, a Certificate of Incorporation is a proof that a company has been registered, and by virtue of Section 634, the certification of such document should be by the commission, which is contrary to the position in the instant case, where Exhibit ‘A, was certified by the High court. In this respect, Exhibit ‘A’ was

an inadmissible evidence, which should not have been relied upon, or given any probative value whatsoever. Although its admissibility was not objected to, one has to bear in mind the fact that at the time of tendering Exhibit ‘A’, the defendant/respondent was not represented in court. That however, does not estop the defendant from raising the objection that it was not admissible, later and should not be relied upon. In the case of Okulade v. Alade supra, the Supreme Court in dealing with a situation like this postulated thus:-

“In a trial by a judge alone, as in the case in hand, a distinction must be drawn between those cases where the evidence complained of is in no circumstances admissible in law and where the evidence complained of is admissible under certain conditions.In the former class of cases the evidence cannot be acted upon even if parties admitted

it by consent and the Court of Appeal will entertain a complaint on the admissibility of such evidence by the lower court (although the evidence was admitted in the lower court without objection), in the latter class of cases; if the evidence was admitted in the lower court without objection or by consent of parties or was used by the opposite party (e.g.for the purpose of cross-examination) then it would be within the competence of the trial court to act

on it and the Court of Appeal will not entertain any complaint on the admissibility of such evidence.”

The evidence in the instant case falls within the former class, so I am fortified by the above proposition of law.

See also the cases of Minister of Nigeria v. Lands, Western Nigeria v. Dr. Nnamdi Azikiwe and others SC. 1969/68, Omoniyin v. Omotosho 1961 All N.L.R.304, Alashe v. Olori Ilu 1964 1 All N.L.R. 390, and Yassin v. Barclays Bank 1968 1 All N.L.R. 171.

In this vein, I endorse the finding of the lower court, which reads as follows:-

“For all this, it is incumbent on this court to exclude and discountenance Exhibit A as inadmissible evidence. The consequence is that the action is not properly constituted for want of proper parties.”

In the light of the above discussions, I resolve issues (1) and (3) supra in favour of the respondent, and dismiss grounds (1) and (3) of appeal to which they are married.

I will now proceed to issues (2), (4) and (6) supra in the appellants, brief of argument. The argument proffered by learned counsel for the appellants is that the erroneous certification of Exhibit A was due entirely to the genuine mistake of counsel and not for want of a true legal status on the part of the 1st Plaintiff/Appellant, and that the court below had decided the appeal on a distorted record of appeal, which left out a vital evidence that the original Certificate of Incorporation was presented in court during trial and a proper foundation laid before the admittance of the Certified True Copy in evidence. In support of this argument he placed reliance on the cases of Alli Bello & 13 others v. Attorney General of Oyo State 1986 12 SC. page 111, State v. Gwanto 1983 1 SCNLR page 160, Jolayemi v,. Alaoye 2004 9 M.J.S.C. page 106. Learned counsel further submitted that the evidential burden of proof had shifted to the defendant/respondent to adduce credible evidence that indeed the 1st plaintiff/appellant is not a juristic person. He referred to Sections 135, 136 and 137 of the Evidence Act supra.

The learned counsel for the respondent has in reply submitted that the issue of juristic personality of the 1st plaintiff/appellant is a fundamental issue of law which touches jurisdiction. He placed reliance on the cases of Madukolu & ors v. Nkemdilim supra, P. G. S. Ikachi v. Igbudu 2005 12 NWLR part 940 page 543, Shitta Bey v. Attorney General of Federation 1988 10 NWLR part 970, and Adefulu v. Okulaja 1998 5 NWLR part 550 page 435.He argued that the plaintiffs/appellants having failed to prove legal status or juristic personality of the 1st plaintiff/appellant the lower court was not competent to assume jurisdiction. According to learned counsel, jurisdiction was raised in the trial court vide pleadings, and besides the issue of jurisdiction can be raised at any stage of proceedings. He submitted that the documentary evidence produced at the trial court does not meet the requirement of the law.

Indeed the evidence that forms part of the fundamental requirement of a suit in the trial court does not meet the requirement of the law, as already found above. The particular piece of evidence I am referring to is Exhibit ‘A’, which is paramount to the jurisdiction of the trial court, and its competence to hear and determine the suit. I have already reproduced the significant pleadings of the plaintiffs on the status of the 1st plaintiff in the earlier part of this judgment. That, the plaintiff had to prove, and in doing so he tendered a copy of the Certificate of Incorporation, which was inadmissible. Towards this burden placed on the plaintiffs by the law, they failed woefully. That he took the original certificate of registration to court, and said, ‘this is its original Certificate of Incorporation’ is neither here nor there. He may have taken what he claims to be the original certificate to court, but it is not on record that the learned trial judge looked at the content, as it is not so recorded in the record of proceedings. Even if the learned trial judge recorded that she saw it, the fact that it was not part of the evidence in the court below, makes that single act of taking it to court inconsequential. The heavy weather made of this act of taking the said original certificate of incorporation to court by the learned counsel for the appellant is of no significance, and does not deserve the stress.

The plaintiffs definitely did not discharge the burden of proof placed on them by Section 135 of the Evidence Act supra, and so the burden did not shift to the defendant/respondent. It is after the plaintiff would have proved its assertion, that the burden shifts, and then it becomes incumbent on the defendant to prove its own case or rebut the case of the plaintiff. See Osawaru v. Ezeiruka 1978 6 – 7 SC.135, Akinfosile v. Ijose 1960 5 F.S.C. 192, and Woluchem v. Gudi 1981 5 SC. 291.

It is a cardinal principle of law that jurisdiction is fundamental to the determination of a suit, as unless a court is competent, it cannot exercise jurisdiction over a suit to the extent of deciding on it. In the case of supra, the issue of jurisdiction and competence was encapsulated thus:-

“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.”

I take solace in the above principle of law and hold that the learned trial court was incompetent to decide on the suit, and in consequence the Court of Appeal did not err when it found thus:-

“The consequence is that the action is not properly constituted for want of proper parties. In the situation as found there, there is no way the trial court could have competently dealt with the matter in controversy, that is, as regards the right and interests of the parties when the proper parties are not even before the court.”

There is defect in the competence of the trial court to hear and determine the case at hand which is fatal, and so the proceedings are a nullity. See Rossek v. African Continental Bank Ltd. 1993 B NWLR part 312 page 382, Skenconsult v. Ukey 1981 1 sc.6, and Araka v. Ejeagwu 2000 15 NWLR part 692 page 684.

For the foregoing reasonings I resolve issues (2) (4) and (6) supra in favour of the respondent, and dismiss grounds (2), (4) and (6) of appeal married to the issues for they are bound to fail.

On issue (5), the learned counsel for the appellants did not proffer any argument to cover it, but merely cited the case of Adedeji v. National Bank of Nigeria 1989 1 NWLR part 96 page 212, and reproduced an excerpt of the judgment. That in itself suggests to me that the learned counsel had nothing tangible to canvass in respect of the issue. Although the respondent’s counsel proffered argument to cover the issue, I deem it unnecessary to deal with it, as the situation in this case does not warrant it. Since the bottom line is that the court of trial had no jurisdiction to determine the suit, and I have so found, the need to consider or evaluate the other adduced evidence is obviated. The issue is in favour of the respondent, and I so resolve it. Ground (5) of appeal also fail, and it is hereby dismissed.

Before I conclude this judgment I will like to comment on the appellants’ reply brief of argument, which in essence contains repetitions of the argument in the appellants’ brief of argument. The function of an appellant reply brief as stated in plethora of authorities is to reply to new points raised in a respondent’s brief of argument.

See Ojukwu v. Obasanjo 2004 12 NWLR part 886 page 169, and Olafisoye v. F.R.N. 2004 4 NWLR part 864 page 580. In the case at hand the appellants’ reply brief of argument has not addressed new points raised in the respondent’s brief of argument, but merely sought to further improve on the their earlier argument in the appellants’ brief of argument.

The end result of this appeal is that it is dismissed for it is unmeritorious. I affirm the judgment of the lower court. Costs is assessed at N50,000.00 in favour of the respondents against the appellants.

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SC.266/2005