Legalpedia Citation: (2013-03) Legalpedia 35458 (CA)
In the Court of Appeal
Akure
Fri Mar 29, 2013
Suit Number: CA/AK/239/2013
CORAM
S. DENTON-WEST, J.C.A
M. A. DANJUMA, J.C.A
PARTIES
INCORPORATED TRUSTEES OF HOLY APOSTLES CHURCH, AYETORO & ORS
APPELLANTS
INCORPORATED TRUSTEES OF ONENESS FAITH OF CHRIST MINISTRY, AYETORO & ORS
RESPONDENTS
AREA(S) OF LAW
APPEAL, COMPANY LAW, COURT, JURISDICTION, JURISTIC PERSONALITY, INTERPRETATION OF STATUTE, LOCUS STANDI, PRACTICE AND PROCEDURE, STARE DECISIS
SUMMARY OF FACTS
The Respondents commenced this action at the Ondo State High Court, sitting in Akure vide a Writ of Summons and an Amended Statement of Claim, wherein they sought against the Appellants, declaratory and injunctive relief, Special and General Damages, amongst other reliefs. In reaction, the Appellants filed an application seeking an order striking out the name of the 1st Respondent from the suit for not being a juristic person, and consequently to also strike out the names of 2nd, 3rd, 4th, 5th, 6th, 7th, 8th and 9th Respondents, on the ground that the suit was instituted in the name of the 1st Respondent as “The Incorporated Trustees of Oneness Faith of Christ Ministry, Ayetoro”, whereas the Certificate of Incorporation of the 1st Respondent has the name “The Incorporated Trustees of Oneness Faith of Christ Ministry”. In its Ruling, the trial Court dismissed the application. Aggrieved by the ruling, the Appellants have appealed against same via their Notice of Appeal containing four (4) Grounds of Appeal.
HELD
Appeal Allowed
ISSUES
1. Having regard to the facts and circumstance of this case and plethora of appellate Court’s decisions on the implication of names in a Certificate of Incorporation. Whether the 1st, Respondent is a juristic person.
2. Having regard to the facts and circumstances of this case and the decisions of Esenowo V. Ukpong (1996) 6 NWLR (Pt 608) 611@ 617 and lfedapo Community Bank Ltd V. Eternal Order of Cherubim and Seraphim, Saki Branch (2001) 7 NWLR (Pt 712) 508 at 515 cited to the trial Court, whether it did not err in law when it refused to be bound by them.
RATIONES DECIDENDI
LEAVE OF COURT – EFFECT OF FAILURE TO OBTAIN LEAVE OF COURT WHERE SAME IS A CONDITION PRECEDENT
“It is elementary in law that failure to seek and obtain leave, either from the trial Court or this Court, to appeal on grounds of mixed law and fact is fatal to that ground of appeal. Seeking and obtaining the leave is a condition precedent. However, it is the responsibility of the appellate Court to ensure that the ground of appeal complained about actually is of mixed law and fact and not because the Respondent branded it so. See the cases of Chief D.S Yaro Vs. Arewa Construction Limited (ln Receivership) & Ors. (2007) 6 SCNJ 418; Godfrey Anukam Vs. Felix Anukam (2008) 2 SCNJ 62 and Oba Felix Abidoye & Ors. vs. Oba Jacob Alawode & Ors (2001) 3 SC 1. PER S. DENTON-WEST, J.C.A
APPEAL, PRACTICE AND PROCEDURE
GROUND OF APPEAL – FACTOR IN DETERMINING WHETHER A GROUND OF APPEAL INVOLVED QUESTIONS OF LAW OR FACT OR MIXED LAW AND FACT
“In Oba Felix Abidoye & Ors. Vs. Oba Jacob Alawode & Ors (supra) at page 7 Paragraphs 15 to 25, the apex Court stated thus:
As this Court has pointed out in several decided cases such as in Ogbedie & Ors. V. Onochie & Ors. (1986) 2 NWLR (part 23) 484 at 488, what is important in determining whether a ground of appeal involved questions of law or fact or mixed law and fact, is not its cognomen, nor its designation as Error in law”.
“It is rather the essence of the ground, the reality of the complaint embedded in that name that determines what any particular ground involves. See also United Bank for Africa Ltd V. Stahlbau Gmbh & Co. (1989) 3 NWLR (part 110) 374 at 377 and 410; and Ojemen V. Momodu (1983) 3 SC 173.’ PER S. DENTON-WEST, J.C.A
GROUND OF APPEAL – WHAT WILL AMOUNT TO GROUND OF MIXED LAW AND FACT
“On what will amount to ground of mixed law and fact, the Supreme Court in the same case of Oba Felix Abidoye & Ors. Vs. Oba Jacob Alawode & Ors (supra) at page 7 Paragraph 10, opined thus:
A careful examination of the only ground of appeal in this case set out above and particulars of error reveal that the appellants are questioning the evaluation of the facts by the lower Court before the application of the law and therefore the ground involves a question of mixed law and fact.” PER S. DENTON-WEST, J.C.
APPEAL
GROUND OF APPEAL – GUIDELINES AS TO THE DISTINCTIONS BETWEEN A GROUND OF LAW, A GROUND OF MIXED LAW AND FACT OR FACTS
“Indeed, the Supreme Court in the case of Godfrey Anukam V. Felix Anukam (supra) at page 70, Paragraphs 10 to 30 stated some guidelines as to the distinctions between a ground of law on the one hand and a ground of mixed law and fact or facts on the other hand, thus:
(1) where a ground of appeal complains of an error involving a misunderstanding or misconception of the law or a misapplication of the law to proved or admitted facts, it is a ground of law- See Amadu Vs. Adelodun (supra)
(2) A ground of appeal which complains of the lower Courts exercise of its discretion necessarily involves the appellate Courts consideration of the peculiar facts, and circumstances upon which the discretion was exercised and so one of facts. But where the ground complains of the lower Courts use of wrong principles in the exercise of its discretion, the facts and circumstances in which the discretion was exercised are no longer in issue. The only issue in such a case is that of the alleged wrong principle and therefore one of law alone. See : Metal Construction (WA) Ltd V. D. A. Migliore & Or (1990) I NWLR (pt 126) 299 at 315.
(3) A ground of appeal which complains of the lower Courts evaluation of evidence and alleges sufficiency or insufficiency of the evidence is one of facts or at best one of mixed law and facts. Where however the ground of appeal does not complain about the evaluation but only about the inference to be drawn from the established or admitted facts, it is one of law. Similarly where the ground of appeal alleges that there is no evidence upon which the lower Court could reach its decision, it is a ground of law. See Anambra State Housing Development Corporation V. J. C. O. Emekwue (1996) 1 NWLR (Pt 426) 505 at 527-528; Ifediorah Vs. Ume(1988) 2 NWLR (P 74) 5; UBA V. Stahlbrau Gmbh (1989) 3 NWLR (Pt 110) 374”. PER S. DENTON-WEST, J.C.A
JURISDICTION – WHETHER AN APPEAL ON THE ISSUE OF JURISDICTION REQUIRES THE LEAVE OF COURT
“In lfedapo Community Bank Ltd. Vs. Eternal Order of C & S Church, Saki Branch(supra) @ page 515 – 516 Paragraph A-H, my learned brother, Onalaja, JCA in his concurring judgment put the issue thus:
“……the capacity of the Respondent once raised, it has to be considered first as it touches and is extrinsic to jurisdiction. Madukolu & Ors. Vs. Nkemdilim (1962) 2 SCNLR 341; Leedo Presidential Hotel Ltd. Vs. B.O.B. Ltd. (1998) 10 NWLR (pt. 570) 353; Adefulu vs. Okwaja (1998) 10 NWLR (pt. 550) 435.”
It is trite in law, and I dare say, needs no citation of judicial authority that issue of jurisdiction is ground of law which requires no leave of either the Court below or this Court to appeal on. The law is clear that on grounds of law the Appellants can appeal as of right. -PER S. DENTON-WEST, J.C.A
INTERPRETATION OF STATUTE
CANONS OF INTERPRETATON – WHERE WORDS USED IN A STATUTE ARE CLEAR AND UNAMBIGUOUS; THEY MUST BE GIVEN ITS PLAIN OR ORDINARY MEANING
“It is pertinent to note that juristic personality is a creation of statute. And the position of the law is very clear that where words used in a statute are clear and unambiguous; they must be given its plain or ordinary meaning. See: Madam Akon lyoho vs. E.P.E. Effiong (Esq.) & Anor (2007) 4 SCNJ 414, Hon. Michael Dapianlong&Ors. Vs. Chief (Dr.) Joshua ChibiDariye& Anor (2007) 4 SCNJ 286 and The Registered Trustees of National Association of Community Health Practitioners of Nigeria &Ors. Vs. Medical and Health Workers Union of Nigeria &Ors.(2008) 1 SCNJ 348. Indeed in the case of the Registered Trustees of National Association of Community Health Practitioners of Nigeria &Ors. Vs. Medical and Health Workers Union of Nigeria &Ors. (supra), the Apex Court per Mukhtar, JSC (as he then was) at page 371 Paragraphs 15 to 20, put the issue thus:
“…..Once a Court gives the provisions of a law that is not ambiguous, the grammatical and ordinary interpretation to conform with the interest of the legislature when the law was passed, an appellate Court cannot fault such interpretation for the cardinal principle of interpretation would have been met with by the lower Court.”
-PER S. DENTON-WEST, J.C.A
CORPORATE NAME OF A COMPANY – CONSEQUENCES OF ADDITION OR SUBTRACTION FROM THE NAME ON THE CERTIFICATE OF INCORPORATION
“On the effect of Registration and Certificate of Incorporation of an Incorporated Trustee, Sections 591(1) (a) and 596(1) provide as follows:
Section 591(1)(a):
“Application under Section 596 of this Act shall be in the form prescribed by the commission and shall state
(a) the name of the proposed body which must contain the words “Incorporated Trustees of”
Section 596(1) provides as follows:
(1)From the date of registration, the trustee or trustees shall become a body corporate by the name described in the Certificate, and shall have perpetual succession and a common seal and power to sue and be sued in its corporate name as such Trustee or Trustees and subject to Section 602 of this part of this Act to hold and acquire, and transfer assign or otherwise dispose of any property, or interest therein belonging to, or held for the benefit of such association, in such manner and subject to such restrictions and provisions as the Trustees ought without incorporation hold or acquire, transfer, assign or otherwise dispose of the same for the purposes of such community, body or association of persons.’ (Underlining mine)
The combined implication of Section 591(1)(a) and 596(1) reproduced above is that the name described on the Certificate of Incorporation only, is the name clothed with legal or juristic personality with powers to, inter alia, sue and be sued in its corporate name. In the instant case, the name on the Certificate of Incorporation – (Exhibit A) as can be found at page 52 of the Record of Appeal is “The Incorporated Trustees of Oneness Faith of Christ Ministry”, which is clearly different from “The Incorporated Trustees of Oneness Faith of Christ Ministry, Ayetoro” the name with which the 1st Respondent instituted this suit. Any addition or subtraction from the name on the Certificate of Incorporation, to my mind, will amount to alteration or change of name which can only be effected with the permission and approval of C.A.C. See: Section 597(1) of CAMA. -PER S. DENTON-WEST, J.C.A
COMPANY LAW
JURISTIC PERSONALITY – WHETHER A BRANCH OF AN INCORPORATED ASSOCIATION HAS JURISTIC PERSONALITY
“I cannot agree more with my learned brother Mukhtar, JCA (as he then was) in the case of lfedapo Community Bank Ltd. Vs. Eternal Order of C & S Church, Saki Branch (2001) 7 NWLR (pt. 712) 508 @ 514 Paragraph G – H, when he held thus:
“That the name under which the Plaintiff sues is different from the above is glaring and clear as crystal, the fact that it bears the words Cherubim and Seraphim, and that the only addition (that may be regarded as minor) are the words Saki Branch, notwithstanding. I am not aware that the Plaintiff/Respondent in its reply to the Statement of Defence disclosed that the Plaintiff is a branch of the said Eternal Order of Cherubim and Seraphim. The fact however remains that it was only the overall umbrella body that was incorporated, and not the branches that spring up from thereunder and as can be seen from the Certificate of Incorporation reproduced above … ”
Clearly, it is wrong for the 1st Respondent to have commenced and indeed cannot institute this action in the name “lncorporated Trustees of Oneness Faith of Christ Ministry, Ayetoro” which is unincorporated entity or at best a branch of “lncorporated Trustees of Oneness Faith of Christ Ministry”. A branch of an incorporated association does not have juristic personality. See: The Registered Trustees of the Nigerian Baptist Convention & Anor vs. The Registered Trustees of the African Church Organisation (1992) 7 NWLR (pt. 251) 105 and Union Beverages Ltd. Vs. Pepsi Gola international Ltd. &Ors. (1994) 3 NWLR (pt.330) 1.-PER S. DENTON-WEST, J.C.A
JURISDICTION OF COURT – DETERMINANT OF THE JURISDICTION OF COURT
“However, it cannot be correctly said that the 2nd to the 9th Respondents derived their authority to be in this suit as Claimants from the 1st Respondent, given the fact that it is a settled principle of law that it is the claim of the Claimant(s) that determine the jurisdiction of the Court to entertain a case before it. In the case of Chief Abubakaar Zibiri Odugbo & Ors. Vs. Chief Aliu Abu &Ors.(2001 7 SC (pt. 1) 168 @ 202 Paragraph 30 to 35, the Supreme Court, per Ejiwumi, JSC (as he then was) put the issue poignantly, thus:
‘It is my further view that the trial Court was vested with the jurisdiction to entertain the suit based upon their Statement of Claim, having regard to the settled principle of law that it is the claim of the Plaintiff that determines the jurisdiction of the Court to entertain a suit before it See: Barclays Bank vs. Central Bank (1976) 6 SC 175 @ 193; Adeyemi vs. Opeyori (1976) 9-10 SC 31 @ pages 51 – 52″:
-PER S. DENTON-WEST, J.C.A
STARE DECISIS
DOCTRINE OF STARE DECISIS – APPLICATION OF THE DOCTRINE OF STARE DECISIS
“It is elementary that the doctrine of judicial precedent is well rooted in our jurisprudence. lt is a policy of our law. In the case of Global Transport Oceanico S. A. & Anor vs. Free Enterprises Nigeria Limited (2001) 2 SC 154 @ 165 Paragraph 35 to page 166 Paragraphs 5 to 20; the Supreme Court per Kalgo, JSC (as he then was) put the issue thus:
‘lt deals with the question of the application of the doctrine of precedents or what is normally referred to as stare decisis. Simply put this doctrine lays down the golden rule that decisions of higher Courts of the land are binding on the lower Courts in the land. And decisions of Courts of co-ordinate jurisdiction are for all intents and purposes, binding as between those Courts. In all cases, decisions made per incuriam are not included for obvious reasons and a Court may depart from its earlier decision if it is satisfied that the decision was wrong and there is a need to reverse or alter it in the interest of justice. In the case of Eperokun vs. University of Lagos (1986) 4 NWLR (pt. 34) 162, this Court stated the main benefits of following previous decisions per Oputa, JSC on page 193 of the report that:
Standing by a previous decision which has not been proved to be perverse, or to have been decided Per incuriam or proved to be faulty legally or procedurally has a lot of advantages. It fosters stability and enhances the development of a consistent and coherent body of law. In addition, it preserves continuity and manifest respect for the past. lt also assures equality of treatment for litigants similarly situated. It likewise spares the Judge the task of re-examining rules of law, or principles, with each succeeding case, and finally it affords the law a desirable measure of predictability.’
I entirety agree with this statement and wish to add that it also helps to maintain some legal order within the judicial systems.”
To be deciphered from the above authority and a plethora of others is that it is an inexcusable judicial disrespect or arrogance to dent the subsistence of the Nigerian law as adumbrated by the Supreme Court in an earlier case, unless it is demonstrated to be manifestly out of step with modern developments in law or distinguishable from the instant case. -PER S. DENTON-WEST, J.C.A
COMPANY LAW, JURISTIC PERSONALITY
JURISTIC PERSONALITY – WHETHER AN INCORPORATED BODY CAN SUE IN A NAME OTHER THAN ITS REGISTERED NAME WITH THE CORPORATE AFFAIRS COMMISSION
“The 1st respondent claiming to be an incorporated body may only sue and be sued in its corporate name as registered with the Corporate Affairs Commission. See J&J Techo Nigeria Limited v. YH Q.S Limited (2015) 8 NWLR (pt. 1460) 1 at 26 (CA); Njeruanze v. Shell B.P. Port Harcourt (1966) NSCC Vol. 4 page 6 at 7-8 SC submitted as additional authorities by the appellants learned counsel”. – PER M. A. DANJUMA, J.C.A
LOCUS STANDI, JURISDICTION
LOCUS STANDI – EFFECT OF LACK OF LOCUS STANDI ON THE JURISDICTION OF A COURT
“Where a party lacks the locus standi to sue, any action instituted by it is incompetent, and such an action is a non-starter, as it is deemed not to have been instituted at all. There can be no activation of a Court of law by a non – existing person.
As a corollary, the Court will in such circumstance, have no jurisdiction as it cannot constitute itself into an errand knight looking for jurisdiction where no one has activated it.
Being a threshold issue, the lack of jurisdiction must be considered first and shall be disposed however raised. – PER M. A. DANJUMA, J.C.A
APPEAL – FATE OF A CROSS-APPEAL WHERE THE MAIN APPEAL IS STRUCK OUT
“In Uzudu v. Ebigah (2009) vol. 177 LRCN 52 at 66 the Supreme Court ordered that both the main appeal and cross-appeal be heard together rather than strike out the main appeal alone, as the hearing of the cross-appeal alone will be rendered nugatory if not a mere academic exercise. – PER M. A. DANJUMA, J.C.A
CASES CITED
Uzudu v. Ebigah (2009) vol. 177 LRCN 52 at 66
STATUTES REFERRED TO
Companies and Allied Matters Act, LFN 1990
Constitution of the Federal Republic of Nigeria 1999 (as amended)