Christaben Group Ltd & Anor V. Mr. A. I. Oni (2008)
LawGlobal-Hub Lead Judgment Report
KEKERE-EKUN, J.C.A.
By a writ of summons dated 1st June, 1998, the respondent herein, as plaintiff, instituted an action against the appellants, as defendants, before the High Court of Rivers State sitting at Nchia for the recovery of a debt allegedly owed the respondent by the appellants. The respondent’s claim at page 2 of the record is as follows:
“The plaintiff’s claim against the defendants jointly and severally is for the sum of N 1, 583, 750.00 (One Million, Five Hundred and Eighty-Three Thousand, Seven Hundred and Fifty Naira) representing the unpaid balance outstanding against the defendants under an agreement entered into between the plaintiff and the defendants in April and May, 1994 in Port Harcourt whereby the plaintiff hired out to the defendants at defendants’ request specified number of assorted equipment with operators at agreed daily cost for defendants’ use at NAFCON (i.e. National Fertilizer Company of Nigeria Limited), Onne, River State, during the NAFCON Turnaround Maintenance Exercise that tool place in 1994. The defendants have failed, refused and neglected to pay the aforesaid balance to plaintiff despite repeated demands.
The plaintiff claim (sic) interest on the said amount at the rate of 10% per annum from the date of judgment until actual payment of the judgment debt and for costs.”
Pursuant to leave sought and obtained from the court, the suit was entered for hearing on the Undefended List and marked accordingly. The respondent was also granted leave to issue the writ for service outside the jurisdiction of the court. Although duly served with the writ, verifying affidavit and exhibits annexed thereto, the appellants failed to comply with the provisions of Order 23 rule 3(1) of the High Court of Rivers State (Civil Procedure) Rules by filing a notice of intention to defend the suit. The learned trial judge proceeded to hear the suit on the undefended list and on 1st April, 1999 entered judgment in favour of the respondent in the following terms:
“I have gone through very carefully the affidavit in support of plaintiff’s application praying that this suit be entered on the “Undefended List” as well as the exhibits thereto annexed. In exhibits “H”, “J” and “J1” respectively, defendants acknowledged their indebtedness to the plaintiff to the tune of N1, 081, 067.00 (One million, eighty one thousand, sixty-seven naira).
Since an action brought under the “Undefended List” is for recovery of liquidated damages or specific debt, this honourable court hereby accepts that the liquidated sum claimed in this suit is N1, 081,067.00 which the defendants acknowledged themselves. Any amount above this claimed by the plaintiff is not liquidated and is subject to proof.
Accordingly, I hereby enter judgment for the plaintiff for the sum of N1, 081, 067.00 only against the defendants.
It is herby ordered that 10% interest p.a. on this judgment sum be paid to the plaintiff by the defendants from now till this judgment sum is liquidated. I also hereby award N2, 000.00 costs in favour of the plaintiff,”
The appellants are dissatisfied with this judgment and have appealed to this court by a notice of appeal dated 19th April, 1999 containing five grounds of appeal. On 16/5/02, the appellants were granted leave to file two additional grounds of appeal. The respondent is also dissatisfied with that part of the judgment that excluded the sum of N502, 683.00 from the total amount claimed. He therefore filed a notice of cross-appeal containing two grounds of appeal. On 2nd March, 2005, the respondent was granted leave to file an additional ground of appeal. The respondent also filed a preliminary objection dated 16/11/07 and filed the same day.
In compliance with the rules of this Court the parties duly filed and exchanged their respective briefs of argument. The appellants filed an amended brief of argument, a reply brief to the respondent’s brief and a cross-respondent’s brief. All the briefs are dated 13/2/07. The respondent’s brief is dated 7/1/05. It was deemed filed on 2/3/05. The respondent also filed a cross-appellant’s brief, which is incorporated in his respondent’s brief.
At the hearing of this appeal on 5/3/08, Mr. K. Wodu, learned counsel for the appellants/cross-respondents and Mr. O.O. Osunbor, learned counsel for the respondent/cross appellant adopted their respective briefs of argument. Mr. Osunbor referred us to arguments in respect of the preliminary objection at pages 5 – 11 of the respondent’s brief and urged us to uphold the objection, strike out the grounds of appeal complained of and the issues formulated thereon. Mr. Wodu urged us to allow the appeal and dismiss the cross-appeal. Mr. Osunbor on the other hand urged us to dismiss the appeal and allow the cross appeal.
In their amended brief of argument, the appellants have formulated three issues for the determination of this appeal. They are:
- Whether on the facts and circumstances of this case, the parties to this action were competent parties for which the lower court can exercise jurisdiction.
Assuming but not conceding that the parties are competent parties:
- Whether there was compliance with the provisions of section 87 of the Sheriffs and Civil Process Act (Cap. 407) Laws of the Federation of Nigeria, 1990.
- Whether on the facts of this case, the award of N1, 081, 067.00 with interest at 10% made in favour of the plaintiff/respondent/cross-appellant was justified.
The respondent however formulated two issues for determination thus:
- Whether having regard to the facts and circumstances of this case, the respondent as plaintiff and appellants as defendants were the proper parties to sue and be sued in this case upon the contract, subject matter of action at the court below to justify the judgment given in favour of the respondent by the trial court.
- Whether there was compliance with the provisions of section 97 of the Sheriffs and Civil Process Act (Cap. 407) Laws of the Federation of Nigeria, 1990.
I had noted earlier that the respondent filed a notice of preliminary objection to the hearing of the appeal. It is therefore necessary at this stage to consider the said objection before considering, if necessary, the merits of the appeal. The grounds of the objection as contained in the notice filed on 16/11/07 are that as regards grounds (i), (ii), (iii) and (iv) of the original grounds of appeal and grounds 6 and 7 of the additional grounds of appeal, the issues raised therein as to whether the proper parties were before the court are new issues being raised for the first time before this Court without leave. It is also stated that the grounds of appeal do not arise from the judgment appealed against and that the grounds were filed in contravention of Order 6 rule 3 (a) of the Court of Appeal (Amendment) Rules 1984, which were the applicable Rules at the material time. It is contended that issue no. 3 in the appellants’ brief distilled from grounds 6 and 7 of the additional grounds of appeal is also incompetent.
Arguing the objection, learned counsel for the respondent submitted that as far as grounds (i) -(iv) of the original grounds and grounds 6 and 7 of the additional grounds are concerned, the appellants ought to have taken advantage of the opportunity afforded them by the High Court Rules to file a notice of intention to defend and ought to have raised therein the contention that the proper parties were not before the court. He submitted that having failed to do so, it was not the duty of the court to raise the issue on their behalf. He relied on: V.S. Steel (Nig.) Ltd. v. Govt., Anambra State (2001) 8 NWLR (Pt. 715) 454 at 464 A-C & 467 C-E; Ogida v. Oliha (1986) 1 NWLR (Pt. 19) 786 at 798 A-E; Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566 at 581 F – 582 D.
Learned counsel submitted that the issue of locus standi or the competence of the parties is an issue of fact or of mixed law and fact, which could have been raised before the trial court by way of pleading or by way of an application to strike out the names of the incompetent parties. He relied on: R. Lauwers Import-Export v. Jozebson Industries Co. (1988) All NLR 310 at 332 – 333; (1988) 3 NWLR (Pt. 83) 429 at 452 C-E; Obijiaku v. NDIC (2002) 8 NWLR (Pt. 774) 201 at 210 E-H; V.S. Steel (Nig.) Ltd. v. Govt., Anambra State (supra) at 464 A-C; Santa Fe Drilling (Nig.) Ltd. v. Awala (1999) 6 NWLR (Pt. 608) 623; Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (Pt. 109) 250 at 266 H -267 A.
He submitted that failure to obtain leave to raise the issues renders the grounds of appeal incompetent. He argued that obtaining leave to file and argue additional grounds of appeal does not relieve the appellants of duty to specifically apply for leave to raise new issues that were not raised before the trial court. He relied on: Yusuf v. U.B.N Ltd. (1996) 6 NWLR (Pt. 457) 632 at 644 A-E; F.G.N v. Zebra Energy Ltd. (2002) 3 NWLR (Pt. 754) 471 at 499 E-F. He further submitted that pursuant to Order 6 rule 3(a) of the Court of Appeal (Amendment) Rules, 1984, the appellants were required to give notice of their intention to raise fresh issues on appeal, which they failed to do.
Learned counsel also submitted that grounds (i) – (iv), 6 and 7 do not flow from the judgment appealed against and are also incompetent for that reason. He relied on: Obijiaku v. NDIC (supra) at 210 E – 212 C; and Uor v. Loko (1988) 2 NWLR (Pt. 77) 430 at 441 C-F.
In response to the preliminary objection, learned counsel for the appellants referred to paragraphs 4.1 and 4.2 of the respondent’s brief where the preliminary objection was introduced and contended that the grounds upon which the objection is predicated are not stated therein, thereby rendering the said objection incompetent. He urged us to so hold. He relied on: Livestock Feeds Plc. v. Funtua & Anor. (2005) 17 NWLR (Pt. 955) 549; and Emir of Kano & Ors v. Agundi & Ors. (2006) 2 NWLR (Pt. 965) 572.
Alternatively, he maintained that a judgment entered under the undefended list is a final judgment; that the appellants have a right of appeal against it, even if they did not participate in the trial; and that the issues raised in grounds (i), (ii), (iii) and (iv) of the original notice of appeal and grounds 6 and 7 of the additional grounds are issues that are manifest from the lower court’s proceedings and naturally arose from the judgment.
He submitted, without conceding, that even if the issues are being raised in this court for the first time, they are issues that affect the jurisdiction of the court and can therefore be raised before this court for the first time. He relied on: Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583; and Madukolu & Ors. v. Nkemdilim & Ors. (1962) 2 SCNLR 341. He urged us to dismiss the objection.
Grounds (i), (ii), (iii) and (iv) of the original grounds of appeal and grounds 6 and 7 of the additional grounds of appeal and their particulars are as follows:
GROUND (1)
The honourable court erred in law and thus occasioned a miscarriage of justice when it entertained, proceeded and determined the plaintiff’s suit which said suit the plaintiff lacked locus standi to institute and/or prosecute the said suit.
Particulars of error:
a. The suit was against the defendants jointly and severally for unpaid balance outstanding against the defendants under an agreement entered into between the plaintiff and defendants in April and May 1994.
b. The said agreement was entered into between Messers Aiony Ventures Ltd. (whose technical division is AAB Technical Services) with Mr. A.I. Oni as its Managing Director and Christaben TMUCB Nigeria Ltd.
c. Any claim for any unpaid sum against Christaben TMUCB Nigeria Ltd., or any other person can in the circumstances be initiated and prosecuted by Aiony Venture Ltd., and not Mr. A.I. Oni.
d. The initiation and prosecution of this suit by Mr. A.I. Oni was erroneous as the said Mr. A.I. Oni lacked competence to initiate and/or prosecute this suit and the judgment obtained thereon was accordingly perverse and/or irregular.
GROUND (ii)
The Honourable Court erred in law and thus occasioned a miscarriage of justice when it heard and determined this suit whereas the said court lacked jurisdiction to determine the said suit as the suit was initiated and/or prosecuted against incompetent parties.
Particulars of Error:
a. The agreement subject matter of this action between Aiony Ventures Ltd. and Christaben TMUCB Nigeria Ltd.
b. Mr. C.A. Ihenacho, the 2nd defendant was represented as the president of the Christaben TMUCB Nigeria Ltd. and accordingly was the agent of a disclosed principal and was therefore not a competent defendant.
c. There was no evidence before the court that Christaben TMUCB Nigeria Ltd. and Christaben Group Ltd. are one and the same and accordingly the joinder and/or prosecution of the suit against Christaben TMUCB Nigeria Ltd was wrong.
GROUND (iii)
The Honourable Court erred in law and thus occasioned a miscarriage of justice when it failed to strike out the said suit as incompetent.
Particulars of Error:
a. A suit can only be commenced by proper parties.
b. The plaintiff and/or defendants in this suit are incompetent parties and it is the duty of any court to strike out a suit commenced by incompetent parties.
GROUND (iv)
The Honourable Court erred in law and this occasioned a miscarriage of justice when it heard and determined the plaintiff’s suit when the said suit which was for service out of jurisdiction did not bear the mandatory endorsement provided by section 97 of the Sheriffs and Civil Process Act (Cap. 407). Laws of the Federation of Nigeria. 1990 and is thus incompetent.
Particulars of Error:
a. By the provisions of section 97 of the Sheriffs and Civil Process Act (Cap. 407). Laws of the Federation of Nigeria, 1990 a writ of summons for service outside jurisdiction shall have a notice to the effect that it is for service outside jurisdiction and further specifying the state where the service is to be effected.
b. The plaintiff’s claim that its writ of summons does not bear the particulars contained in (a) above.
GROUND 6
ERROR IN LAW:
The Honurable Court erred in law when it held the defendants liable to the plaintiff in the sum of N1.081.067.00 with interest at 10% per annum and thereby occasioned a miscarriage of justice.
Particulars of Error:
i. The contract the subject matter of the action was between Aiony Ventures Ltd and Christaben TMUCB Nigeria Ltd.
ii. None of the parties on record in their capacities was a privy to the said contract.
iii. The lower court in the circumstance was in error when it held the defendant(s) liable in respect of a contract for which they were not parties.
GROUND 7
ERROR IN LAW:
The Honourable Court erred in law when it held that the defendants have acknowledged their indebtedness to the plaintiff to the turn (sic) of N1, 081, 067.00 when on the evidence the said conclusion is impossible as the purported acknowledgement was by a non-party to the transaction the subject matter of the suit and no evidence exists that such acknowledgement if any was with the mandate and/or consent of the proper party to the contract the subject matter of this action.
Reacting to the arguments in respect of the preliminary objection, learned counsel for the appellants argued that the preliminary objection is incompetent because the grounds for the objection were not stated in the respondent’s brief. This submission is misconceived. Pursuant to Order 3 rule 15 (1) of the Court of Appeal Rules, 2002 (now Order 10 rule 1 of the Court of Appeal Rules, 2007) the respondent filed a formal notice of preliminary objection dated and filed on 16/11/07 wherein the grounds of the objection are fully set out. The failure to state the grounds of the objection in the respondent’s brief is not fatal to the objection as there has been substantial compliance with the rules by the filing of the formal notice. The submission of learned counsel for the appellants in this regard is therefore discountenanced.
The law is settled that grounds of appeal must be derived from the ratio decidendi of the decision of the court in the ruling or judgment appealed against. Any ground of appeal, which does not arise from or now from the judgment appealed against, is incompetent and liable to be struck out. See: Nwankwo & Anor v. Ecumenical Development Co-operative Society (EDCS) U.A. (2007) 1 -2 SC 145 at 160-161, (2007) 5 NWLR (Pt.1027) 377; Obi v. INEC (2007) 7 SC 268 a 295 line 32 -296 line 4, (2007) 11 NWLR (Pt.1046) 560; Dalek (Nig.) Ltd. v. OMPADEC (2007) All FWLR (364) 204 at 226 F-H, (2007) 7 NWLR (Pt.1033) 402; Co-operative & Commerce Bank Plc. v. Ekperi (2007) 1 SC (Pt. 11) 130 at 144 lines 9-37, (2007) 3 NWLR (Pt.1022) 493.
It is also trite that a party would not be allowed to raise on appeal an issue not raised before the trial court unless prior leave has been sought and obtained. See: Gbadamosi v. Dairo (2007) 1 SC (Pt. 11) 130 at 168, (2007) 3 NWLR (Pt.1021) 282. The exception to this rule is where the issue of jurisdiction is raised. This is because jurisdiction is a threshold issue, which goes to the root of the powers of the court to adjudicate. Where a court lacks jurisdiction to entertain a cause or matter, any step taken in the proceedings would be a nullity no matter how well conducted. See: Madukolu v. Nkemdilim (supra); Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6.
A careful examination of the grounds of appeal reproduced above shows that grounds (i), (ii) and (iii) thereof raise two issues: that the plaintiff had no locus standi to institute the action and that the proper parties were not before the court. It is the contention of the appellant that from the facts before the court as contained in the supporting affidavit and exhibits annexed thereto, the contract that gave rise to the dispute in contention was between Messers Aiony Ventures Ltd, and Christaben TMUCB Nigeria Ltd. and not between Mr. A.I. Oni (Trading under the name and style of AAB Technical Services) on the one hand and Christaben Group Ltd. and Mr. Ihenacho on the other, as stated on the writ of summons.
Bearing in mind the fact that the respondent did not file any process before the lower court, there is no doubt that the locus standi of the plaintiff or competence of the parties before the court were not raised before that court. The issues have been raised for the first time before this court; it is also not in dispute that the appellants have not sought leave to raise the issues as fresh issues before this court. The general principle of law in this regard is that where a party seeks to raise a fresh issue not raised in the court below, he must seek and obtain leave to do so, failing which the issue so raised would be incompetent and liable to be struck out. See: A-G., Oyo State v. Fairlakes Hotel Ltd. (1988) 12 SC (Pt. 1) 1, (1988) 5 NWLR (Pt. 92) 1; Uor v. Loko (1988) 2 NWLR (Pt. 77) 430. However where the issue is one of jurisdiction, it could be raised for the first time before an appellate court, with or without leave. See: Obiakor & Anor: v. The State (2002) 10 NWLR (Pt. 776) 612 at 626 G; Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583; and Oyakhire v. The State (2006) 7 SCNJ 319 at 327 line 36 – 328 line 2, (2006) 15 NWLR (Pt.1001) 157. I am not unaware of some recent decisions of the Supreme Court to the effect that even though the issue of jurisdiction could be raised for the first time on appeal, prior leave to do so must be sought and obtained. These decisions are in conflict with the line of authorities referred to above. See: Ukpong v. Commissioner for Finance (2006) 19 NWLR (Pt. 1013) 187 at 221 – 213 F-A. Until the issue is specifically taken up and finally settled one way or the other by the apex court, and having regard to the fact that any proceedings conducted without jurisdiction are a nullity ab initio, I am guided by those authorities who state that the issue of jurisdiction can be raised at any stage with or without leave.
The issue to be considered at this stage is whether the locus standi of the plaintiff or the competence of the parties is an issue that could be raised for the first time before this court without leave. The Supreme Court in the recent case of Mode v. Mbamalu (2006) 15 NWLR (Pt. 1003) 466 at 491 D-E; 512 E-F & 515 E-H held that the competence of a party to file an action relates to jurisdiction and can be raised for the first time on appeal. The court held that where an action is not properly constituted, the court is without jurisdiction to adjudicate. This is because the court would have no jurisdiction to make any order that might affect parties who are not before it. See also: Plateau State v. A-G ., Federation (2006) 3 NWLR (Pt. 967) 346 at 423 B-C; Oloriode v. Oyebi (1984) 1SCNLR 390. With due respect to learned counsel for the respondent, while it is desirable that an issue such as locus standi be raised in the pleading of the party and set down for hearing by way of a motion as a preliminary issue, in light of the decisions of the apex court referred to above, where this has not been done, being an issue of jurisdiction, it could be raised at any stage and even for the first time at the Supreme Court. I am therefore of the view that grounds (i), (ii) and (iii) having raised a jurisdictional issue are competent even though raised for the first time in this court without leave.
Ground (iv) of the original notice of appeal complains of non- compliance with section 97 of the Sheriffs and Civil Process Act. It is contended that the writ of summons, which was for service out of jurisdiction did not bear the mandatory endorsement to that effect or the state where the service was to be effected and was therefore incompetent. I have examined the writ of summons at pages 2 – 4 of the record and find that at page 3 thereof it contains an endorsement to the effect that the writ is to be served out of Rivers State. It however does not state where it is to be served. The writ of summons served on the respondent was not exhibited. It is therefore not possible to ascertain whether it contained the relevant endorsements or not. The Supreme Court held in the case of B.B.N Ltd v. S. Olayiwola & Sons Ltd. (2005) 3 NWLR (Pt. 912) 434 at 453 C that the failure to make the prescribed endorsement on a writ of summons for service out of a State and in another state is a procedural irregularity. In other words, it is not an issue that affects the jurisdiction of the court to adjudicate in the mailer. I am of the view that this is an issue that ought to have been raised at the earliest opportunity at the court below. It is a matter of fact and not law whether or not the writ of summons bore the prescribed endorsements. I agree with learned counsel for the respondent that the issue is being raised for the first time in this court without leave. Ground (iv) is therefore incompetent and it is accordingly struck out.
In grounds 6 and 7 of the additional grounds of appeal, it is contended that the panics on record were not privy to the contract in dispute. The issue of privity of contract is an issue of fact or at best one of mixed law and fact. It is not an issue of jurisdiction. It is not an issue that arose before the trial court, having regard to the fact that the suit was undefended. As submitted by learned counsel for the respondent, it was not the duty of the court to make a case for either of the parties and particularly not for a party that did not file any process before it. Therefore to raise it as a fresh issue, the appellants must seek and obtain leave of this court to do so, which they failed to do. Grounds 6 and 7 of the additional grounds of appeal are therefore incompetent and accordingly struck out.
In the circumstances, the preliminary objection partially succeeds. Ground (iv) of the Original notice of appeal and grounds 6 and 7 of the additional grounds of appeal are incompetent and therefore struck out. Issue 2, which is predicated upon ground (iv) is hereby struck out. Issue 3 is distilled from ground (v) of the original notice of appeal and grounds 6 and 7 of the additional grounds of appeal. The position of the law is that where an issue for determination is distilled from both competent and incompetent grounds of appeal, it is not the duty of the court to separate the arguments in respect of the competent ground from arguments in respect of the incompetent grounds. The said issue would be incompetent in its entirety. See: Ngige v. Obi (2006) 14 NWLR (Pt. 999) 1 at 165 C-H; Sehindemi v. Gov. Lagos State (2006) 10NWLR (Pt. 987) 1 at 28 A-D; Ayalogu v. Agu (1998) 1 NWLR (Pt. 532) 129. Issue 3 is therefore hereby struck out.
From all that I have said above, the appellant is left with issue I for determination. I have however considered issue 1 formulated by the respondent and I am of the view that it adequately covers grounds (i), (ii), (iii) and (v) of the original notice of appeal and is sufficient to determine the issues in controversy in this appeal. The issue is as follows:
“Whether having regard to the facts and circumstances of this case, the respondent as plaintiff and the appellants as defendants were the proper parties to sue and be sued in this case upon the contract subject matter of the action at the court below to justify the judgment given in favour of the respondent by the said court.”
In his brief of argument, learned counsel for the appellants submitted that for an action to be competent, it must be commenced by the proper parties and that any defect in competence would render the proceedings a nullity. He relied on: Madukolu v. Nkemdilim (supra); Ayoola v. Baruwa & Ors. (1999) 11 NWLR (Pt. 628) 595 at 615 E-F; and Santa Fe Drilling Nigeria Ltd. v. George Awala & Anor. (1999) 6 NWLR (Pt. 608) 623. He submitted that the contract between the parties is as contained in exhibits A and B annexed to the affidavit in support of the writ of summons. It is the appellants’ contention that the contract was between AAB Technical Services (a division of Aiony Ventures Ltd.) on the one hand and Christaben TMUCB Nigeria Ltd. on the other. Exhibit A at pages 32 – 33 of the record is the quotation presented by AAB Technical Services (a division of Aiony Ventures Ltd.) to Christaben TMUCB Nigeria Ltd. for the supply of various equipment to enable Christaben TMUCB Nigeria Ltd. execute a contract it won from the National Fertilizer Company of Nigeria Ltd. (NAFCON) in relation to the Turn Around Maintenance (TAM) of NAFCON’s facilities. Exhibit B is a letter from Christaben TMUCB Nigeria Ltd. awarding the contract to AAB Technical Services for the supply of the equipment quoted in exhibit A on the terms and conditions contained therein. It is the appellants’ contention that the parties to the contract in dispute are not before the court. He maintained that the proper plaintiff is Aiony Ventures Ltd. while the proper defendant is Christaben TMUCB Nigeria Ltd. alone and not Christaben Group Ltd. and Mr. C.A. Ihenacho jointly and severally. Learned counsel maintained that this is the correct position notwithstanding the fact that at a stage in the transaction, Christaben Group Ltd. addressed a letter to AAB Technical Services Ltd. in respect of outstanding payments. He further submitted that Mr. Ihenacho, the Chief Executive Officer of the 1st appellant, was at all material times the agent of disclosed principal and could therefore not be sued. He relied on: West Africa Shipping Agency & Anor. v. Kalla (1978) NSCC 114, (1978) 3 SC 21. In the same vein, he contended that the respondent, Mr. A.I. Oni is the Managing Director of Aiony Ventures Ltd.
In the respondent’s reply brief, learned counsel for the respondent submitted that the contention that Aiony Ventures Ltd. was a party to the contract is not borne out of the record. He contended that the following facts are not in dispute:
a. That the contract, exhibit E, was awarded to AAB Technical Ltd., and not to Aiony Ventures Ltd.
b. That even though the quotation in exhibit A was written on the letter head of AAB Technical Services (a division of Aiony Ventures Ltd.) there is no evidence on the record to show that either Christaben TMUCB Nigeria Ltd. or the 1st and 2nd appellants dealt with Aiony Ventures Ltd in the course of the transaction.
c. That in the course of the transaction, the appellants addressed the respondent variously as “The Managing Director AAB Technical Ltd.” (Exhibits H, J and J1 at pages 46, 47 and 48 of the record); “M/S AAB Technical Nigeria” (Exhibit G at page 43 of the record); ‘The Managing Director, AAB Technical Services” (Exhibit M at page 52 of the record); “Mr. A.I. Oni (AAB Technical Services)” (in Exhibits N & O at pages 53 – 57 of the record; or as “Mr. A.I. Oni (Operating under the name of AAB Technical Services)” (in exhibit Q at pages 59 – 62 of the record.
d. That from the averments in the verifying affidavit deposed to by the respondent himself, it is evident that he dealt with various representatives of the appellants in his personal capacity.
Learned counsel for the respondent submitted that while the respondent specifically averred in paragraph 3 of his supporting affidavit that the 1st appellant is a limited liability company incorporated under the laws of Nigeria, he made no such assertion in respect of Christaben TMUCB Nigeria Ltd. in paragraph 7 thereof. He argued that whether or not Christaben TMUCB Nig. Ltd. is a registered company with a distinct legal personality is an issue of mixed law and facts, which could not be adjudicated upon without trial. He submitted that as the suit was brought under the Undefended List procedure, the issue did not arise at the trial. He submitted further that the mere addition of the word “Ltd.” to Christaben TMUCB Nigeria Ltd. and Aiony Ventures Ltd. would not give rise to a presumption in law that the enterprises are juristic persons. He submitted that it is a matter of fact to be proved by evidence through the production of their certificates of incorporation. He relied on sections 36 (5) and (6) and 37 of the Companies and Allied Matters Act, 1990 and the case of: Balik of Baroda v. Iyalabani (2002) 13 NWLR (Pt. 785) 551 at 576 A-B; 588 G-590 B.
Learned counsel submitted that the appellants failed to take steps to challenge the capacity in which the suit was instituted before the trial court. They also failed to show, by producing its certificate of incorporation, that Christaben TMUCB Nigeria Ltd. has a corporate existence separate and distinct from the party sued. He submitted that it is not in dispute that Mr. Deji Mustapha and Mr. Okey Nnachi referred to in paragraph 5 of the respondent’s affidavit, were the 1st appellant’s Group General Manager and Operations Manager respectively.
On the contention of the appellants that the 2nd appellant was the agent of a disclosed principal, learned counsel for the respondent referred to paragraphs 29 – 32 of the supporting affidavit and submitted that the averments therein show that the 2nd appellant was responsible for withholding payment from the respondent. He submitted that the respondent was therefore justified in joining the 2nd appellant as a necessary party. He relied on the case of: Alale v. Olu (2001) 7 NWLR (Pt. 711) 119 at 130 to 131 E. He referred to the various circumstances when an agent of a disclosed principal would be personally liable on a contract.
He submitted further that the 2nd appellant was a common denominator between Christaben TMUCB Nigeria Ltd. and the 1st appellant and that by his representations; he gave the impression that both enterprises were one and the same.
In reply to the submissions of learned counsel for the respondent, learned counsel for the appellants submitted that the documentary evidence before the court clearly defines the parties to the contract. He contended that the attempt by learned counsel for the respondent to justify the parties to the suit as constituted before the trial court is inconsistent with the express words of exhibits A and B. He submitted that the documents speak for themselves and any evidence that is inconsistent therewith is inadmissible. He relied on section 132 of the Evidence Act.
The law is settled that where parties have embodied the terms of their contract in a written document, extrinsic evidence is not available to add to, vary, subtract from or contradict the terms of the written instrument. See: Union Bank of Nig. Ltd. v. Ozigi (1994) 3 NWLR (Pt. 333) 385; Eke v. Odolofin (1961) AII NLR (Pt.4) 404. It is also trite that where there is any disagreement between parties to a written agreement on any point, the authoritative or legal source of information for the purpose of resolving the disagreement or dispute is the written contract executed between the parties. See: Larmie v. D.P.M.S. Ltd (2005) 12 SC (Pt. 1) 93 at 103, (2005) 18 NWLR (Pt.958) 438. The parties herein are at ad idem on the fact that the contract between the parties is contained in exhibits A and B at pages 32-35 of the record. Exhibit A dated 7th April, 1994 is written in the letter headed paper of “AAB Technical Services (a division of Aiony Ventures Ltd.)” “registered under the Federal Government.” It is addressed to the “The General Manager, Christaben TMUCB Nigeria Ltd., PO. Box 10484, Ikeja, Lagos.” It is a quotation for the hire of various equipment signed by the Managing Director. Exhibit B is written on the letter headed paper of Christaben TMUCB Nigeria Ltd. It is dated 15th April, 1994. It is addressed to “The Managing Director, AAB Technical Ltd., 3 Trans Amadi Ind. Layout, Port Harcourt.” The opening sentences read:
“Dear Sir,
Supply of Heavy Equipments (sic)
We refer to your quotation and subsequent discussions held in respect of the above.
We are happy to inform you that our Management has approved the award for the supply of the underlisted equipments (sic) to your company…
Your faithfully,
For: Christaben TMUCB (Nig.) Ltd.
(sgd) C.A. Ihenacho
President.”
In paragraphs 2, 3, 4 and 7 of the supporting affidavit, the respondent averred thus:
- “That I am a businessman engaged in the business of equipment hire (or leasing) and service, amongst others, under the business name of AAB Technical Services and at the time material to this application I had my business head office at NO.3 Trans Amadi Industrial Layout, Rumuobiakani Junction, Port Harcourt.
- That the 1st defendant/respondent (hereinafter referred to simply as 1st defendant”) is a limited liability company incorporated under the laws of Nigeria and at the time material to this application had its head office at No. 14, Odanye Close, off Adeniyi Jones Avenue, Lagos State and a branch office at New Refinery Road, Eleme, Rivers State within jurisdiction. The 1st defendant is a major contractor to the National Fertilizer Company of Nigeria Ltd. (otherwise known as “NAFCON”) and executes contract jobs from time to time at NAFCON, Onne, Rivers State.
- That the 2nd defendant/respondent (hereinafter referred to simply as 2nd defendant”) is the president and Chief Executive Officer of the 1st defendant…
- That by a letter dated 15th April, 1994 signed by 2nd defendant and delivered to me by the said Engr. Nnachi, defendants’ Christaben TMUCB (Nig.) Limited wrote to award to me the contract for the supply of the specified quantities of assorted equipment over the stated period of time. A copy of the letter showing the agreed daily rate of charges per unit of equipment and the period of the hire, which said letter also included the equipment I had inadvertently omitted in my quotation of 7th April, 1994, is annexed herewith and marked as exhibit “B”.
(Emphasis supplied).
It must be reiterated that the suit before the trial court was on the undefended list and that the appellants herein did not file any process therein. Therefore, the material upon which to determine whether or not the parties before the court were competent is the affidavit in support of the writ of summons and the exhibits annexed thereto. It is clear from exhibit A referred to earlier in this judgment that the invitation to treat was made by AAB Technical Services. Although the letter headed paper indicates that AAB Technical Services is a division of Aiony Ventures Ltd., there is nothing before the court to suggest that Aiony Ventures Ltd. entered into the particular contract in issue. The averment in the supporting affidavit is that the appellant trades under the name and style of AAB Technical Service. This averment, which is borne out by exhibit A, stands unchallenged. I am therefore of the view that Mr. A.I. Oni (trading under the name and style of AAB Technical Services) was competent to institute the suit before the trial court.
The other issue to consider is whether the proper defendant was before the court. In paragraph 3 of the suppoting affidavit, the respondent averred that the 1st defendant, Christaben Group Ltd. is a limited liability company and a major contractor of NAFCON. However in paragraph 7 of the said affidavit, he specifically averred that the contract, the subject matter of the dispute was awarded to him by Christaben TMUCB (Nig.) Ltd. He relied on exhibit B in support of this averment. I have critically examined all the 49 paragraphs of the supporting affidavit. There is no averment therein stating the relationship between the 1st defendant on record and Christaben TMUCB Nigeria Ltd. In the absence of specific averments in this regard, the presumption in law is that the 1st defendant Christaben TMUCB Nigeria Ltd. are two separate and distinct legal entities. Having specifically averred that he entered into a contract with Christaben TMUCB Nigeria Ltd. there is no justification on the face of the record for instituting the suit against Christaben Group Ltd.
With regard to the 2nd appellant, the respondent averred that he is the president and chief executive officer of the 1st appellant. However the 1st appellant was not the company that entered into the contract with the respondent. In paragraph 7 thereof the averred that exhibit B was signed by the 2nd appellant on behalf of Christaben TMUCB Nigeria Ltd. Having failed to make Christaben TMUCB Nigeria Ltd. a party to the suit, his position as president and chief executive officer of Christaben Group Ltd. is of no consequence to the contract between AAB Technical Services and Christaben TMUCB (Nig.) Ltd. Even if both companies have the same president and chief executive officer, by virtue of their corporate personalities, they are entitled to sue and be sued in their respective corporate names as distinct entities.
In the case of A.C.B. Plc. v. Emostrade Ltd. (1998) 2 NWLR (Pt. 536) 19, one of the issues before the trial court was whether the respondent was a limited liability company duly incorporated under the law. The dispute arose from a banker/customer relationship. The defendants contended that they did not know the plaintiff on record. Although issues were joined on the pleadings in this regard, the plaintiff did not tender its certificate of incorporation in the proceedings. In the course of its judgment, the trial court considered the pleadings of the parties and the evidence led and held that the defendant had recognised the existence of the plaintiff on the basis of their pleading in certain paragraphs of their amended statement of defence and that such admission required no further proof. The court went on to hold that from the evidence led by the defendants, particularly DW1, the plaintiff was known to them and was their customer. The learned trial judge queried thus:
“What were the defendants dealing with, was it nobody all along? If so, with respect, for what have they filed pleadings, and led evidence including pleadings and evidence of the plaintiff? The defence is far from a real defence in this case and I so hold.” The court entered judgment in favour of the plaintiff.
The defendants appealed against the decision to this court. The appeal was dismissed by the majority decision of Akpabio and Ubaezonu, JJCA with Salami, JCA dissenting. The Court held that having regard to the respondent’s name on the writ of summons “Emostrade Limited”, it was prima facie a limited liability company, and therefore a juristic person. Furthermore Akpabio, JCA held that regardless of whether or not the respondent was a limited liability company, on the appellant’s own admission, the respondent was a partnership. He held that it was a registered business name and that the appellants themselves accepted that the account in question was their account and that Chief Victor Ndoma Egba (PW1) who was the sole signatory to the account and it was the holder of the account. The Court held that it was a case of misnomer, which with leave of the court could be cured by amendment.
The defendants, as appellants, appealed to the Supreme Court against the dismissal of the appeal. The apex court held that the decision of the Court of Appeal on the issue was speculative and failed to take into account the legal requirement of proof of the juristic personality of a party to a case when issue is joined on it. The apex court also held that the court of Appeal wrongly and gratuitously introduced the issue of misnomer on behalf of the respondent in arriving at the majority decision of the court. Consequently, it held that the respondent as plaintiff was not a legal entity or juristic person entitled to sue and be sued in law. It allowed the appeal and set aside the decision of the Court of Appeal and struck out the respondent’s suit at the trial court. See: A.C.E Plc. v. Emostrade Ltd. (2002) 4 SC (Pt. 11); (2002) 8 NWLR (Pt.770) 501.
In the instant case, the juristic personality of the 1st appellant is not being challenged. However it is the contention of learned counsel for the respondent that the 1st appellant and Christaben TMUCB (Nig.) Ltd. are one and the same and that the 2nd appellant is common to both as president and chief executive officer. There is no doubt that upon a careful perusal of the exhibits attached to the supporting affidavit, particularly exhibits H, J and J 1 that the letter headed paper of Christaben Group Ltd. was used to communicate with the respondent in respect of the contract. The respondent also addressed several letters to Christaben Group Ltd. and others to Christaben TMUCB (Nig.) Ltd. I am however of the respectful view that in the absence of clear evidence in that regard, i.e. the certificates of incorporation of both companies, it would be speculative to presume that the contract entered into with Christaben TMUCB Nigeria Ltd. metamorphosed into a contract with Christaben Group Ltd. or that the two companies are one and the same.
Having averred that he entered into a contract with Christaben TMUCB (Nig.) Ltd., the respondent was bound by his pleading, which clearly showed that he had instituted his action against incompetent parties.
On the authority of Madukolu v. Nkemdilim (supra), a court is competent when:
a. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or the other:
b. The subject matter of the case is within jurisdiction, and there is not feature in the case which prevents the court from exercising its jurisdiction; and
c. The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
In the instant case, the suit having been instituted against incompetent parties, the court had no jurisdiction to entertain it. It follows therefore that the court lacked jurisdiction to make the orders it did on 1st April, 1999. The result of my findings in the course of this judgment is that there is merit in this appeal. The sole issue for determination is resolved in favour of the appellants and against the respondent. Having held that the court below lacked jurisdiction to entertain the suit, the cross-appeal fails and is hereby dismissed.
In conclusion, the judgment of the trial court delivered on 1st April, 1999 is hereby set aside. The writ of summons in suit No. NHC/69/98 is hereby struck out. Costs of N30, 000.00 are awarded in favour of the appellants.
Other Citations: (2008)LCN/2739(CA)
