Ostankino Shipping Co. Ltd V. The Owners Of The Mt Bata 1 & Ors (2021)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
At the trial Federal High Court the appellant, as plaintiff in suit number FHC/L/CS/922/2002, by its amended statement of claim filed on the 8th of October 2003, claimed against the defendants, the respondents herein, jointly and severally for the damage to its vessel “M.P. OSTANKINO” and the attendant loss and expenses by reason of the collIsion with the respondents’ ship M.T, “BATA I” which occurred off-shore Lagos on the 3rd and 4th of August 2002 as a result of the negligence of the defendants, their servants or agents.
In paragraph 1 of its amended statement of claim, the appellant avers the status that entitles it to the grant of the claim by the trial Court thus:-
“1. The plaintiffs at all times material to this action are the owners of the M.T. “OSTANKINO” and are a LIMITED LIABILITY company registered in Cyprus”. (Underlining mine for emphasis).
In responding to the foregoing paragraph of the appellant’s amended statement of claim the respondents, in paragraphs 1 and 2 of their amended-statement of defence/counter-claim filed on the 17th December 2003, aver thus:-
“1. SAVE AND EXCEPT as hereinafter specifically admitted the Defendants deny each and every allegation of fact contained in the plaintiffs statement of claim as if each were herein set out and traversed seriatim.
- The Defendants are not in a position to either accept or deny paragraph 1 of the statement of claim, the Plaintiff is therefore under a duty to the proof of same strictly.” (Underlining mine for emphasis).
Appellant’s amended reply to respondents’ amended statement of defence/counter-claim dated and filed on 7th October 2007 is silent on the challenge contained specifically in paragraph 2 of the respondents’ amended statement of defence/counter-claim on its legal personality.
]The appellant called a single witness to prove its case through whom eleven Exhibits, DI — DII, none of which is its certificate of incorporation, were tendered.
At the end of trial, Omolojobi J upheld respondents contention, proffered in final addresses of counsel, challenging the juristic personality of the appellant and struck out the suit.
Following the dismissal of his appeal at the Court of Appeal, the appellant has appealed to this Court against the concurrent findings of the two lower Courts vide his notice filed on the 17th day of January 2011 containing three grounds.
Parties have filed and exchanged briefs which at the hearing of the appeal, were adopted and relied upon as their respective arguments.
The two issues distilled at paragraph 5.01 of the appellant’s brief of argument as arising for and which will inform the determination of the appeal read:-
(1) Whether the Court of Appeal was right in holding that without the production of the certificate of incorporation of the Appellant that the appellant had no legal capacity or locus standi to institute the action against the respondents, when the legal capacity or locus standi of the Appellant to institute the action was not a fact in issue between the parties.
(2) Whether the Court of Appeal was right in law in refusing and/or failing to consider the other two issues (1 & 3) submitted for determination by the Appellant which arose from the grounds raised in the Appellant’s Notice dated the 9th day of March 2007 and which said issues were argued in the Appellant’s Brief of Argument dated the 6th day of March 2009.
On the 1st issue, learned appellants counsel submits that the lower Court is wrong in its finding that appellant’s failure to produce its certificate of incorporation at the trial Court has robbed it the legal capacity to institute the action ab initio. At no time, it is argued, did parties join issue in their pleadings on the legal capacity of the appellant to institute the action. The lower Court, submits learned appellant’s counsel, wrongly applied the principle enunciated in NDUKA V. EZENWAKU (2001) 6 NWLR (PT 709) 517 and HOUSE OF REPRESENTATIVES V. SPDC (2010) 11 NWLR (PT 1205) 213 at 251 since the legal capacity of the appellant had not been put in issue by the parties. Were it otherwise, the respondents, it is further submitted; would not have counter-claimed against the very appellant they contend lacks the legal capacity to defend the counter-claim. Relying on CALABAR CENTRAL COOPERATIVE THRIFT & CREDIT SOCIETY LTD & 2 ORS V. EKPO (2008) 6 NWLR (PT 1083) 362 at 392, HOUSE OF REPRESENTATIVES V. SPDC (supra) and G & T INVESTMENT LTD V. WITT & BUSH LTD (2011) 8 NWLR (PT 1250) 500 at 540,learned appellant’s counsel contends that in the absence of a proper traverse by the respondents to paragraph I of appellant’s amended statement of claim, the issue of appellant’s juristic personality cannot be said to have been put in issue purely on the basis of respondents counsel’s belated submission in their final address at the trial Court. Further relying on ASAFA FOODS FACTORY V. ALRAINE (NIG) LTD (2002) 12 NWLR (PT 781) 353, learned counsel concludes that respondents general traverse being the only basis of their challenge to the competence of appellant’s suit is unavailing. He urges that it be so-held and the issue resolved against the respondents.
On their first issue, which is similar to appellant’s first, learned respondents’ counsel submits that appellant’s silence in its amended reply, given paragraphs 1 and 2 of the respondents response to paragraph 1 of the appellant’s amended statement of claim, is fatal. The respondents in the two paragraphs of their amended statement of defence and counter-claim, it is asserted, unequivocally put the legal personality of the appellant in issue. While by the first paragraph in their amended statementof defence/counter-claim the respondents may be said to have made a general traverse to the averment in paragraph 1 of the appellant’s statement of claim, by the further averment in paragraph 2 of their amended statement of defence/counter-claim, it is contended, the traverse ceases to be a general one the latter paragraph having made it very specific whether or not a traverse is general or specific, it is argued, depends on the totality of a party’s pleadings. It is never the practice to isolate a particular paragraph in a party’s pleading and adjudge, by its token alone, that, the party’s pleading has been generally rather than specifically traversed.
Paragraph 1 in the respondents’ amended statement of defence/counter-claim must be viewed in the light of the other paragraphs in their pleading in correctly deciphering to be made as the issue/issues the parties had gone to trial upon. In any event, it is further contended, the appellant who claims to be an unnatural legal person is required by law to establish that fact and having failed to, both Courts are right to have struck out the claim. The two Courts, learned respondents’ counsel submits, rightly relied inter-alia on NDUKA V. EZENWAKU (supra), HOUSE OF REPRESENTATIVES V. SPDC (supra) and MAGBAGBEOLA V. SANNI (supra) in affirming the trial Court’s finding that the appellant having failed to establish its legal personality by proffering the certificate of its incorporation, lacks the locus standi to sustain its claim against the respondents. Further referring to ASAFA FOODS FACTORY V. ALRAINE (supra), OSOLU V. OSOLU (2003) 11 NWLR (PT.832) 609 and REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH ILESHA AREA V. ATTORNEY GENERAL OF MID-WESTERN NIGERIA (1972) 4 SC 150 at 158 at 159, learned respondents’ counsel urges that the issue be resolved against the appellant.
Now, in striking out appellant’s suit, the trial Court at page 204 of the record held as follow:-
“To my mind, the aforestated averment contained in paragraph 2 of the statement of defence is enough to put the plaintiff’s counsel on notice that the Corporate existence of the Plaintiff which he described as a limited liability company registered in Cyprus has been called to question by the defendant’s counsel. He could not have averred more than he did because, the fact that thePlaintiff is a limited liability company is solely within the knowledge of the Plaintiff and probably, its counsel as far as this action is concerned. Therefore, the burden of proving same rests on them.”
The trial judge concluded at page 206 of the record of appeal thus:-
“In the instant case, when the Plaintiff is described as a limited liability company and there is nothing before this Court to support that averment in the Plaintiff’s Statement of Claim, the Plaintiff cannot be regarded as a juristic person with legal personality who can sue or be sued in a Court of competent jurisdiction. And such, the Plaintiff is not competent to institute this action. I so hold.”
In dismissing appellant’s appeal and affirming the trial Court’s foregoing findings, the lower Court held firstly as follows:-
“The above pleading showed that Respondents joined issue with the Appellant on its legal capacity to maintain an action. The respondents denied the fact that the appellant is a limited liability company. The burden therefore shifts on the appellant to prove it is a limited liability so as to show its legal capacity to sue………”
The Court further surmised as follows:-
“In the instant case appellant is a foreign company. Despite adding the word limited to Ostankino Shipping Co. it would not satisfy the requirement of evidence of incorporation.
In absence of evidence of incorporation l hold that appellant is incompetent to institute any action at the lower Court. It is only proper juristic person who can sue or be sued. Defect in competence is very fatal to a suit.” (Underlining mine for emphasis).
The Court concluded at page 308 of the record as follows:
“In view of the fact that the Court was not properly clothed with jurisdiction to entertain the action abinitio on ground of lack of locus standi, I will invoke S. 15 of the Court of Appeal, Act and order that the suit No. FAC/CS/922/2002 filed by the appellant before the lower Court be and is hereby struck out.” (Underlining mine for emphasis).
This appeal questions the correctness of the foregoing concurrent findings of the two Courts below striking out the suit following the appellant/plaintiff’s failure to prove its right to sue in the first place. It has not been the practice of this Court to interfere with such findings except where the appellant succeeds in establishing that they neither evolved from the evidence on record nor consequent upon correct application of principles. See SERBER V. KARIKARI (1939) 5 WACA 34 and OKAFOR V. ABUMOFUANI (20160 LPELR – 40299 (SC).
It is not being contested by the appellant that for an action to be properly constituted so as to vest jurisdiction in the Court to adjudicate on it there must be a competent plaintiff and a competent defendant. As a general rule only a natural person, a human being, or an artificial person, a body corporate, which the appellant avers to be in paragraph one of its amended statement of claim, are competent to sue or be sued. The law further confers on some non-legal entities the personality to sue or defend an action. Thus, where either the plaintiff or the defendant is not a legal person, the action is liable to be struck out. See ATAGUBA & CO. V. GURA NIGERIA LIMITED (2005) LPELR-584 (SC), MAERSK LUNE & ANOR V. ADDIDE INVESTMENTS LTD & ANOR (2002) LPELR – 1811 (SC). In THE ADMIN & EXEC OF ESTATE OF ABACHA V. EKE-SPIFF & ORS (2009) LPELR – 3152(SC) this Court restated the principle thus:-
“The law is also trite that a non-existing person, natural or legal personality, cannot institute an action. Nor will an action be allowed to be maintained against a Defendant who as sued, is not a legal person.”
It is also trite that the juristic personality of a body corporate is evidenced only by tendering the certificate of incorporation of the company. See BANK OF BARODA V. IYALABANI COMPANY LTD (2002) LPELR – 743 (SC), AFOLABI & ORS V. WESTERN STEEL WORKS LTD & ORS (2012) LPELR-9340 (SC), REPTICO S. A. GENEVA V. AFRIBANK NIG PLC. In J.K. RANDLE V. KWARA BREWERIES LTD (1986) 456 SC 1. Uwais JSC (as he then was later CJN) in his concurring contribution appositely stated thus:-
“The appellant sued the respondent as a company incorporated under the Company 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.” (Underlining mine for emphasis).
In the case at hand the appellant in paragraph one of its amended statement of claim avers being a “LIMITED LIABILITY Company in Cyprus”. The respondents denied the averment and further assert in their amended statement of defence/counter-claim that being “not in position to either accept or deny paragraph 1 of the statement of claim, the plaintiff is therefore under duty to be proof of same strictly”.
It is strenuously argued by learned appellant’s counsel that appellant’s incorporation not having been categorically denied by the respondents its juristic personality has not been put in issue by parties to warrant its proof. Learned respondents’ counsel contends to the contrary.
I entirely agree with learned counsel to the respondents that learned appellant counsel’s insistence that the averment in paragraph two of the respondents amended statement of a defence/counter-claim is a general denial stems from his reading of the paragraph in isolation rather than by reference to the other averments in the party’s pleading. It is an age old rule of practice that to determine a party’s case resort must be made tothe entire averments in-the party’s pleadings. Considering a few paragraphs of the pleading in isolation militates against a complete flow of the party’s story. See AGI V. P.D.P. & ORS (2016) LPELR 42578 (SC) and ATTORNEY GENERAL OF ANAMBRA STATE V. C. N. ONUSELOGU ENTERPRISES (1987) LPELR – 614 (SC).
A comprehensive examination of the respondents’ amended statement of defence/counter-claim reveals very clearly that parties herein have joined issue on the juristic personality of the appellant thereby making proof of same by the appellant necessary.
It is reasonably settled that a defendants resort to a general traverse in the statement of defence in a manner that casts the burden of proving a denied averment on the plaintiff is a convenient and permissible procedure in defining the case on the defendants which parties are to proceed to trial. Doing so constitute specific traverse of the facts averred to by the plaintiff. By asking the appellant to prove the fact of its incorporation, the respondents who are in no position of knowing the fact of appellants incorporation have effectively traversed appellants assertion of being a corporate body. See UMESIE V. ONUAGULUCHI (1995)LPELR – 3368 (SC), MANDILAS & KARABERIS LTD V. LAMIDI APENA (1969) LPELR 25559 (SC), AKINTOLA & ANOR V. SOLANO (1986) LPELR – 360 (SC) and DAIRO & ORS V. REGISTERED TRUSTEES OF THE ANGLICAN DIOCESE (2017) LPELR -42573 (SC)
Learned appellant’s counsel seems to suggest that having failed to join issue in their amended statement defence/counter-claim with the appellant on the latter’s juristic personality, the respondents have completely compromised their right to challenge the trial Court’s jurisdiction. Learned counsel appears oblivious of the dichotomy in the Court’s procedural and substantive jurisdiction. Simply put, the one is circumscribed by Court rules while the other is as statutorily delineated. While it is settled that the right to challenge a Court’s procedural jurisdiction may be waived by a party, it is trite that neither the Court nor the parties before it can confer on the Court a jurisdiction it statutorily lacks. See DR. MUSA NAGOGO V. C.P.C. & ORS (2012) LPELR – 15521 (SC), AG KWARA STATE V. ADEYEMO & ORS (2016) LPELR – 41147 (SC) and IKECHUKWU V. F.R.N. & ORS (2015) LPELR – 2445 (SC). In MOBIL PRODUCING (NIG) UNLIMITED V. LASEPA & ORS(2002) LPELR -1887(SC) this Court in dwelling on the two types of the Court’s jurisdiction inter-alia enthused as follows:-
“Notwithstanding that, sometimes, the distinction between substance and procedure is blurred, it is generally accepted that matters (including facts) which define the rights and obligations of the parties in controversy are matters of substance defined by substantive law, whereas matters which are mere vehicles which assist the Court or tribunal in going into matters in controversy or litigated before it are matters of procedure regulated by procedural Law. Facts which constitute a cause of action are matters of substance and should be pleaded, whereas facts which relate to how a party is to invoke the jurisdiction of the Court a remedy pursuant to his cause of action is a matter of procedure outside the realm of pleadings………..
‘generally speaking, it may be said that substantive rules give or define the right which it is sought to enforce and procedural rules govern the mode or machinery by which the right is enforced’”
See also HUSSAIN ISA ZAKIRAI V. SALISU DAN’AZUMI MUHAMMAD & ORS (2017) LPELR – 42349 (SC).
In applying the foregoing principles to the facts of the instant case, it is evident that beyond respondents’ objection to the trial Court’s jurisdiction as raised in parties’ pleadings, which is procedural, the further objection raised in learned respondents counsel’s address at the close of the case pertains the Court’s substantive jurisdiction as statutorily circumscribed. By Section 6 (1) and (6)(b), the trial Court is only competent to adjudicate between juristic persons. In the instant case, appellant’s juristic personality as raised challenges both the Court’s procedural and substantive jurisdictions. It is therefore manifestly unwise for learned appellant’s counsel to insist that the overriding issue can be discountenanced by the Court as the challenge to its jurisdiction only rests on non joinder of issue.
Furthermore, by Sections 131 – 137 of the Evidence Act, the appellant must bear the burden of that which it asserts. See
PATRICK ZIIDEEH V. RIVERS STATE CIVIL SERVICE COMMISSION (2007) LPELR – 3544 (SC) and CHIEF EYO EDEM NSEFIK & ORS V. ROSEMARY MUNA & ORS (2013) LPELR – 21862 (SC). Thus whether respondents objection to the trial Court’s competence is on account of either the state of pleadings of parties, the burden of proving those facts it asserts or, still, pursuant to Section 6(1) and (6) (b) of the 1999 Constitution (as amended) which provides for parties to any dispute the trial Court is competent to enquire into and determine, appellant’s failure to tender its certificate of incorporation in proof of its juristic personality, as rightly held by both Courts below, is fatal.
Appellant’s first issue is resultantly resolved in favour of the respondents.
It is academic to consider appellant’s second issue for the lower Court’s non consideration of appellant’s issue would only have become relevant if the trial Court which decision was to review, had the jurisdiction to determine appellant’s suit in the first place. It did not. The lower Court also lacked the jurisdiction to consider and determine any issue arising from the trial Court’s judgment arrived at without jurisdiction. I so hold.
As a whole, the concurrent judgments of the two Courts below are hereby further affirmed.
Parties are to bear their respective costs.
SC.307/2011
