J. Sunkanmi Dairo & Ors V. The Registered Trustees Of The Anglican Diocese Of Lagos (2017)
LAWGLOBAL HUB Lead Judgment Report
KUMAI BAYANG AKA’AHS, J.S.C.
The respondent as plaintiff who instituted the action claimed in its Amended Writ of Summons and Further Amended Statement of Claim dated 17th April, 1989 the following reliefs:-
- The sum of N11, 000.00 being special and general damages for trespass committed by the defendants on the plaintiffs land lying and situate at Iwaya, Lagos State of Nigeria, which said piece and parcel of land is covered by a Deed of Conveyance dated 30th day of June, 1948 and registered as No 42 at page 42 in Volume 776 of the register of Deeds kept in the Land Registry, Lagos.
- Injunction restraining the defendants, his (sic) servants and/or agents from committing further acts of trespass on the said land.
In proof of its case, the plaintiff called 3 witnesses while each of the 1st-6th defendants testified and the 7th defendant called 4 witnesses.
In a reserved judgment, the trial Court dismissed the first claim of the plaintiff/respondent but granted the second claim as contained in the aforesaid amended writ of summons. Dissatisfied with the judgment, the appellants appealed to the Court of
Appeal, Lagos (herein referred to as Court below or lower Court). In its judgment delivered on the 18/3/2002, the Court below allowed the appeal in part by dismissing the second claim of the plaintiff/respondent and in its place granted an order of injunction against the 3rd, 4th, 5th, 6th and 7th defendants/appellants and awarding N1,000.00 as damages against the defendants/appellants. The present appeal is against the judgment of the Court of Appeal delivered on the said 18/3/2002. The Notice of Appeal filed on 17/6/2002 is to be found at pages 878-881 Volume 11 of the records of appeal and contains four grounds of appeal. An amended Notice of Appeal was filed on 20/3/2009 containing five grounds of appeal from which the appellants distilled three issues for determination as follows:-
- Whether from the facts of this case as contained in the printed record, it can be said that the respondent has the legal capacity to institute this action, and if not, whether the trial Court had the requisite jurisdiction to entertain respondent’s suit and whether the Court of Appeal was right to affirm such jurisdiction – Grounds 1, 4 and 5.
- Whether the
appellants admitted the juristic personality of the respondent and if at all whether such admission of the appellants can confer juristic personality on the respondent where none exists – Ground 2.
- Whether based on the foregoing, the respondents can maintain an action in trespass against the appellants – Ground 3.
The respondent also submitted three issues for determination as follows:-
(a) Whether the appellants can at this stage still raise the issue of the legal capacity of the respondent, when same have been dealt with and rejected by the two lower Courts
b) Whether the appellants have properly joined issues with the respondent as to the juristic personality of the respondent herein
c) Whether the respondent can maintain this action
A person must have the requisite legal capacity to be a party to a law suit See: Fawehinmi v. Nigeria Bar Association (No. 2) (1989) 2 NWLR (Pt. 105) 558; Iga v. Amakiri (1976) 11 SC 1 at 8-9; Kwara Hotels Ltd v. Ishola 2002 9 NWLR (Pt. 773) 604 at 622-623. Learned counsel for the appellants submitted that from the facts adduced at the trial Court and as contained in the printed record, the
respondent has not established its legal capacity/competence to institute this action. He contended that where the legal personality of a company or corporation called into question and issue joined thereon, the Certificate of Incorporation should be produced as it is only by that Certificate of Incorporation that its legal personality can be proved.
In response, learned counsel for the respondent referred to Paragraph 1 of the respondent’s further amended Statement of Claim where it was pleaded:-
“1. The Plaintiff(s) at all material times to this action are the Registered Trustees of the Anglican Diocese of Lagos and have their office at 2, Bishop’s Court Marina, Lagos” – and submitted that none of the present appellants (who were 7 in number at the trial Court) specifically joined issues with the above assertion of the Plaintiff/Respondent. It is learned counsel’s argument that the appellants’ statement of defence contained only a bare and evasive denial as to the juristic position of the Plaintiff/Respondent. He said that despite the deliberate refusal by the appellants to join issues with the Respondent at the trial Court, the appellants proceeded
in their address to raise same at the Court of Appeal and the Court of Appeal agreed with the findings made by the trial Court.”
The position of the law is that if there is a pleading that impugns the juristic personality of the plaintiff, the evidence needed would be to tender the Certificate of Incorporation at the trial even if there is evidence of admission about the status of the plaintiff. See:A. C. B. v. Emostrade Ltd (2002) 8 NWLR (Pt. 770) 501 where Uwaifo JSC adopted the statement of Sowemimo Ag. JSC in Registered Trustees of Apostolic Church v. Attorney-General Mid-Western Nigeria (1972) NSCC (Vol. 7) 247 where he observed at page 252:-
“We are in agreement with the leaned trial Judge that whatever may be the admission of the 3rd respondent of the status of the appellant, there is no evidence before the Court that the appellant (i.e. the Apostolic Church) was ever a corporate body. This could only be established as a matter of law by the production in evidence of the Certificate of Incorporation, admission inter partes notwithstanding”. See: also J. K. Randle v. Kwara State Breweries Ltd (1986) 6 SC 1.
In Paragraph 1 of the further
amended Statement of Claim, the plaintiff averred as follows:-
“1. The plaintiffs at all material times to this action are the Registered Trustees of the Anglican Diocese of Lagos and have their office at 2, Bishop’s Court, Marina, Lagos.”
In the amended Statement of Defence the 1st defendant pleaded as follows:-
“SAVE and except where expressly admitted the 1st defendant denies each and every allegation of facts contained in the further amended statement of claim dated 17th April, 1989, if same were set out seriatim and specifically traversed.
- The 1st defendant denies Paragraphs 1 and 2 of the further amended statement of claim and says that he is a boundary man with the plaintiffs.”
Chief Benjamin Sunday Adekunle Ajayi, one of the Trustees of the Anglican Diocese testified as the 3rd Plaintiff witness.
When he was cross- examined he said:-
“I have not seen the certificate of the Registered Trustees of the Anglican Diocese. The Registered Trustees of the Anglican Diocese have not been registered (see page 378 lines 17-20 of the records).”
The learned trial Judge noted this fact when reviewing the evidence of the
witnesses and found at page 584 of the records that:-
“The description of the plaintiffs as Registered Trustees is cosmetic and is not fatal to the locus standi of the plaintiffs, a fortiorari, when they did not specifically plead that they were registered under the law, the naming of two out of the three Trustees is also not fatal to the locus standi of the plaintiffs. The plaintiffs have sufficient interest to institute this action. It was not contested by the defendants that an unregistered Trustees of the Anglican Diocese of Lagos could not sue or be sued.”
Before the making of this finding, the learned trial Judge had stated that the 1st or 3rd plaintiff’s witness ought to have given evidence of succession to the Trusteeship of the Anglican Diocese of Lagos from the officers named in the conveyance i.e. the present Bishop of Lagos, the Chancellor and Diocesan Secretary.
The 1st, 4th, 5th and 6th defendants were dissatisfied with the judgment and appealed against to the Court of Appeal Lagos. In their amended Notice of Appeal of 24/5/2002 containing 8 grounds of appeal, the appellants raised the issue whether the plaintiff, though unregistered, had
juristic personality to sue and maintain the action as “The Registered Trustees of the Anglican Diocese of Lagos”.
In the judgment of the Court of Appeal per Aderemi J.C.A (as he then was) at page 855, he acknowledged the fact that it was the plaintiff that asserted its juristic personality that had the onus of proof. He however went further to state that issues before the Court are decided on the pleadings of the parties and to raise an issue of fact there must be a proper traverse and the denial must be specific. He examined the pleadings and arrived at the conclusion that the issue of the juristic personality of the plaintiff has not arisen for determination as same had been deemed admitted in law.
I am completely at sea as to which pleadings were deemed admitted. The 1st defendant was clear as crystal in his denial of the claim by the plaintiff to be a juristic personality. When the plaintiffs claimed to be the Registered Trustees of the Anglican Diocese of Lagos, the 1st defendant in his preamble expressly denied every allegation of fact contained in the further amended statement of claim and went further to specifically deny Paragraphs 1 and
2 of the further amended statement of claim. The evidence of the 3rd plaintiff witness, Chief Benjamin Sunday Adekunle Ajayi, one of the Trustees of the Anglican Diocese of Lagos shattered the plaintiffs’ claim to being registered since he had never seen the certificate of the Registered Trustees and truthfully told the Court that the Trustees are not registered. This is an admission against interest. See: Section 24(c) Evidence Act.
The finding of the learned trial Judge that the description of the plaintiffs as Registered Trustees is cosmetic and is not fatal to the locus standi of the plaintiffs is standing the law on its head. The plaintiffs sued as Registered Trustees and not as individuals who are representing the Registered Trustees. It is therefore preposterous for the learned trial Judge to say that since the plaintiffs did not specifically plead that they were registered under the law, they have sufficient interest to institute the action. The lower Court cleverly avoided pronouncing on this misdirection in law by taking umbrage under the pleadings. It is very obvious that the respondent as plaintiff failed to prove that it had the legal
capacity to sue or be sued. It is not a juristic person entitled to sue and be sued in law. See: Carlen (Nig.) Ltd v. University of Jos (1994) 1 NWLR (Pt. 323) 631. In Registered Trustees of Apostolic Church v. Attorney-General Mid-Western State (1972) NSCC (Vol. 7) 247 the plaintiffs averred in their statement of claim that the Apostolic Church was incorporated under the Land (Perpetual Succession) Act. The defendants their statement of defence denied this and put them to strict proof. Sowemimo Ag. JSC (as he then was) said at page 250:-
”Although evidence was led as to named persons being made trustees, the Certificate of Incorporation was never produced with Section 6 of the Act under consideration they have no power to sue or be liable to being sued.”
This case is on all fours with this appeal. Also in J. K. Randle v. Kwara Breweries supra where the plaintiff alleged that the defendant was incorporated under the Companies Act 1968, which averment was denied and the plaintiff did not lead secondary evidence of the certificate upon the failure to produce the Certificate of Incorporation despite the notice to produce served on it, this Court held
that the failure to produce the Certificate of Incorporation of the defendant was fatal to the plaintiff’s case. Uwais JSC (later CJN) observed as follows at Page 7:-
”The appellant sued the respondent as a company incorporated under the Companies Act 1968. He failed to prove the incorporation by the production of the Certificate of Incorporation. As the averment in the statement of claim that the defendant was so incorporated was categorically denied by the respondent in its statement of defence the failure to prove the incorporation was fatal to the appellant’s case.”
The plaintiff/respondent in this appeal cannot escape the legal consequence of not producing the certificate of the Registered Trustees simply because the plaintiffs did not specify under what law it was registered. The appeal therefore has merit and it is allowed. The consequence of not producing the Registered Trustees’ Certificate means that the plaintiff is not a juristic person capable of suing and being sued.
Accordingly, the judgment entered by the High Court, Lagos and affirmed by the Court of Appeal is a nullity and is hereby set aside. I make no order as to