Messers Lewis & Peat (N.R.I.) Ltd V. A. E. Akhimien (1976)

LawGlobal-Hub Lead Judgment Report

OBASEKI, AG. JSC. 

This appeal was allowed on the 17th May, 1976, for reasons which we now give. In the High Court of Bendel State holden at Ubiaja the appellants claimed from the respondent the sum of N1,637.31 as money due from, and owing by, the respondent. Pleadings were exchanged and delivered and relevant portions thereof read:-   “Statement of Claim

(1) The Plaintiffs are a trading company registered in Nigeria with their Headquarters in Ogbarefe in the Midwestern State.

(2) The Plaintiffs buy rubber lumps and process them for export.

(4) The defendant, has been a customer of the Plaintiffs from April 1966.

(5) The Plaintiffs at the request of their customers of whom the defendant was one, make cash advances to them for the supply of rubber lumps to the plaintiffs.

(6) The Plaintiffs at the request of the defendant made cash advances by cheques drawn on Barclays Bank Benin City for the supply of rubber lumps to the plaintiffs by defendant.

(7) The advances made to the defendant were defrayed from commissions payable to the defendant by the plaintiffs and which said commissions were calculated on the rubber lumps supplied to the plaintiffs by the defendant. Such commissions are credited to the account of the defendant with the plaintiff company in the ledger to the knowledge of the defendant.

(14) The Plaintiffs say that of the total advance made to the defendant he has repaid N1,070.68 by way of commissions payable to him for the supply he made to the Plaintiffs company, and which said commissions have been credited to his account as is shown in Annexure ‘A’ hereto.

(16) The plaintiffs say that after deducting ………….the defendant as commission for his supply of rubber lumps to the plaintiffs, the defendant still owes to them the sum of N1,637.31 which he has failed and or refused to pay ……………despite repeated demands”

“Statement of Defence

(1) Save and except as hereinafter specifically admitted the defendant denies each and every allegation of fact contained in the ………………..statement of claim as if every such allegation of fact were set out seriatim and specifically traversed.

(2) The defendant admits paragraphs 3 & 4 of the Plaintiffs’ statement of claim.

(3) The defendant is not in a position to admit or deny paragraphs 1 & 2 of the statement of claim and would put the Plaintiffs to the strictest proof thereof.

(5) The defendant denies paragraph 7 of the statement of claim and says further in answer to the paragraph that the cash advance made to the defendant were defrayed with rubber lumps supplied to the Plaintiffs and that the defendant was entitled to commission from the Plaintiffs on the rubber lumps supplied to the plaintiffs.

(6) The defendant denies knowledge of Annexure ‘A’ attached to the Plaintiffs’ statement of claim and says further that it is not a true account of the defendant’s transaction with the Plaintiffs

(7) The defendant avers that his trading transaction with the Plaintiffs has long come to an end.

(8) The defendant denies paragraphs 14, 16 & 17 of the statement of claim and would put the plaintiffs to the strictest proof thereof.”

Pleadings having been exchanged and delivered, the learned trial Judge (Akpovi, Ag. J) took evidence from the parties and in the cause of the address of counsel, learned counsel for the respondent for the first time raised the question of capacity of the appellants to sue. He submitted that there was “no legal person before the court as there is no averment that the plaintiff is a legal person.” Continuing his submissions he pointed out that no certificate of incorporation of the appellants’ company was exhibited at the trial and that in the circumstances the appellants could neither sue nor be sued.    The learned trial Judge in a considered judgment held that the appellants having failed to establish their corporate personality could not maintain the claim which must be dismissed. Parts of his judgment read:-   “In this case pleadings were exchanged, one advantage or necessity for ordering pleadings is to put the case of the parties clearly before the court so that no party springs a surprise at the other at the trial. When the corporate existence of plaintiff was impugned by the defendant, it became necessary for the plaintiff to adduce evidence in proof thereof of the fact of incorporation. Oral assertion by a junior employee of the company is not enough. The certificate of incorporation or registration under the Companies Act…………………….. should be tendered or evidence of its non-existence given.

In our law, only a corporate body or person can sue or be sued. Where the corporate existence of a company is challenged the onus rests on that company to prove its legal status ………….. This is enough to dispose of this case, but in case the conclusion I have reached is impeachable, I proceed to consider the case on its merits. The claim as finally pruned down in the statement of claim is for the balance of advance of N1,637.31. The defendant obtained advances to buy rubber lumps and (sic) sold to the plaintiffs ………. By July 31st 1968 he was owing this amount but ceased completely to supply more rubber.   The defendant admitted be traded with the Plaintiffs and ………………… obtained (cash) advances which was offset when he made the next delivery of lumps. He admitted that the three cheques (from the Plaintiffs) were cashed by him but (said) he had repaid fully the   advances …………. I …………… reject the defence. On the merits therefore, I would give judgment in favour of the plaintiffs but in view of my earlier conclusion on the status of the plaintiffs, I hereby dismiss the claim …………… N50 costs to the defendant. ” This appeal is from this judgment.

The main contention of the appellants is that the question of capacity, or – to use the language of the court of trial – ‘Status’ of the appellants, was not ‘an issue’ in the case in hand, and that in any event it was not an issue on which the success of the claim rested; the respondent contends the contrary and he relies on paragraphs 1 and 3 of his Statement of Defence. When as a result of exchange of pleadings by parties to a case, a material fact is affirmed by one of the parties but denied by the other, the question this raised between the parties is an ‘issue of fact’.

We must observe, however, that in order to raise an issue of fact in these circumstances there must be a proper traverse; and a traverse must be made either by a denial or non-admission either expressly or by necessary implication. So that if a defendant refuses to admit a particular allegation in the statement of claim, he must state so specifically; and he does not do this satisfactorily by pleading thus: “defendant is not in a position to admit or deny (the particular allegation in the statement of claim) and will at the trial put the plaintiff to proof”. As was held in Harris v. Gamble (1878) 7 Ch D 877.

A plea that “defendant puts plaintiffs to proof” amounts to insufficient denial: equally a plea that the “defendant does not admit correctness” (of a particular allegation in the statement of claim) is also an insufficient denial – see Rutter v. Tregent (1879) 12 Ch D 758. We are, of course, not unmindful of the first paragraph of the Statement of Defence. Nowadays almost every Statement of Defence contains such a general denial. (see Warmer v. Sampson (1959)1 QB 287 at 310-311).

However, in respect of essential and material allegations such a general denial ought not be adopted; essential allegations should be specifically traversed. [see Wallerstein v. Moir (1974) 1 WLR 991 at 1002 per Lord Denning, MR., also Bullen, & Leake & Jacobs, Precedent of Pleadings,12th Edition p. 83].

In this connection also we draw attention to Order 13 Rules 9 & 10 of the Rules of the High Court Western Region of Nigeria Cap 44 of Vol. 2 of the 1959 Edition of the Laws of Western Region of Nigeria applicable in the former Midwestern State (now Bendel State). We are, therefore, of the opinion that paragraph 3 of the Statement of Defence did not deny the facts alleged in paragraphs 1 & 3 of the Statement of Claim sufficiently enough to raise any issue in respect of the facts. It is not, however, every issue of

Other Citation: (1976) LCN/2288(SC)