CORAM

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Ita George Mbaba Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

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PARTIES

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NEW TREASURE SUITE NIGERIA LIMITED

APPELLANTS 

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MR. IKECHUKWU MADUKA

RESPONDENTS 

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AREA(S) OF LAW

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ACTION, APPEAL, COMPANY LAW, LEGAL PERSONALITY, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Respondent instituted this action before the Kano State High Court, wherein he sought against the Appellant the sum of ₦1,080,000 (One Million Eighty Thousand Naira Only) being the amount due to the Respondent from the Appellant; 10% interest on the judgment sum from the date of judgment till the judgment sum is liquidated; and Cost of the action. The Appellant was served with the processes but did not file any defence or response to challenge the case, nor did he put in any appearance. The matter was heard under the Summary Judgment Procedure (Order 11 Kano State High Court (Civil Procedure) Rules, 2014) and an application for the Summary Judgment was moved, which was not opposed and the application was granted. Aggrieved, the Appellant filed a Notice of Appeal before the Court of Appeal, Kano Division on the ground that there was no contractual relationship between the parties. In response, the Respondent alongside his Reply Brief, filed a preliminary objection which sought the striking out of the appeal on the ground that the appeal did not relate to the decision of the trial Court and that the grounds of the Appeal were incompetent.

 

 

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HELD

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Appeal Dismissed

 

 

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ISSUES

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 Whether the learned trial judge was right in entering judgment in favour of the Respondent, in the circumstances of the case that Respondent was not a party to the supply contract to Appellant?

 

 

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RATIONES DECIDENDI

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PRELIMINARY OBJECTION –WHETHER RAISING A PRELIMINARY OBJECTION IS THE APPROPRIATE MODE OF OBJECTING TO AN IRREGULAR OR INCOMPETENT GROUND OF APPEAL

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“I should also add that picking quarrel with a ground or grounds of appeal does not call for raising a preliminary objection to the appeal, under Order 10 Rule 1 of the Court of Appeal Rules, 2016 (now 2021 Rules), as the remaining grounds, not complained against, can still sustain the Appeal, even if the complaint is upheld. We have stated, several times, that objection to an irregular or incompetent ground of appeal is done by way of a motion on notice, calling the attention of the Court and of the appellant to such defect and urging the Court to strike out the ground(s). See Esogwa & Ors Vs Nwosu (2020) LPELR-50610 (CA) and the case of Opeyemi Vs State (2019) LPELR-48764(SC), where it was held:

This Preliminary Objection is against certain grounds of the appeal, specifically grounds 2, 3 and 4 in a way that smacks of an academic journey into intellectual discourse and nothing more apart from taking umbrage on some grounds and not on the appeal itself. The Supreme Court had in the case of Oladokun v Olawoyin (2017) All FWLR (Pt.872) 1441 deprecated this mode of raising of objection thus:- “A preliminary objection can only be taken against the hearing of an appeal and not against one or more grounds of appeal which are capable of disturbing the hearing of the appeal. A Preliminary Objection should be capable, if successfully taken of putting an end to the hearing of the appeal. An objection to qualify as preliminary objection should require serious argument and preliminary objection consideration on a point of law which if decided, one way or the other, is going to be decisive of litigation. In other words, the purpose of preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective which if it succeeds would put an end to the appeal. In the instant case, where the preliminary objection filed by the 1st respondent was filed against some grounds of appeal, the Court of Appeal struck same out”. This preliminary objection is really a waste of the Court’s precious time which cannot terminate the appeal, the other ground would sustain the appeal assuming the grounds 2, 3 and 4 were invalid and they are not.” Per PETER-ODILI, JSC

See also the case of Alaribe Vs Okwuonu (2015) LPELR – 24297 CA, where we held:

Whereas in the former, the Notice of preliminary objection ought to be filed, separately, at least, 3 clear days to the hearing of the appeal, to give the opponent due notice before arguing it, either in the Respondent’s brief or separately, in the latter situation, the Respondent only needs to file a motion to highlight the defects in the ground(s), and the same can be properly raised in the Respondent’s brief and argued therein See the case of Innocent Okereke & Anor vs. Innocent Adiele: CA/PH/421/2008, a recent decision of this Court, delivered on 20/11/14, where we said:

“The position of this Court, as per the authorities of the Apex Court, has always been that, where an objection is against one or more grounds of appeal, then the objector need not file a “preliminary objection”, but a motion, notifying the Appellant of the Respondent’s intention to contest the competence of those grounds of appeal or issue(s). Of course, such objection can be raised and argued in the Respondent’s brief, without the need to file a separate process to that effect.

See also Onuegbu & Ors Vs Gov. Imo State &Ors (2015) LPELR – 25968 CA:

We have also held several times, relying on the Apex Court’s decisions, that a preliminary objection, pursuant to Order 10 Rule 1 of this Court’s Rules, 2011, is not the option, where a party is merely objecting to the competence of a ground(s) of appeal or issue distilled therefrom. A preliminary objection can only apply, where there is objection to the competence of the Appeal as a whole, like where notice of appeal is defective, or is not there and/or where the Records of Appeal is challenged, or all the grounds are defective. See the case of Alaribe Vs Okwuonu (2015) LPELR – 24297 CA, where it was held:- “I think, it is necessary to state, again, that there is a difference between raising a preliminary objection against an appeal, under Order 10 Rule 1 of the Court of Appeal Rules, 2011, and raising an objection against a ground(s) of appeal, for being defective. Whereas, in the former, Notice of Preliminary objection ought to be filed, separately, at least 3 clear days to the hearing of the appeal, to give the opponent due notice, before arguing it, either in the Respondent’s brief or separately, in the latter situation, the Respondent only needs to file a motion to highlight the defects in the ground(s), and the same can be properly raised in the Respondent’s brief and argued therein. See the case of Innocent Okereke & Anor Vs Innocent Adiele CA/PH.421/2008, a recent decision of this Court, delivered on 20/11/14, where we said: “The position of this Court, as per the authorities of the Apex Court, has always been that, where an objection is against one or more grounds of appeal, then the objector need not file a “preliminary objection”, but a motion, notifying the Appellant of the Respondent’s intention to contest the competence of those grounds of appeal or issue(s). Of course, such objection can be raised and argued in the Respondent’s brief, without the need to file a separate process to that effect. See the case of General Electric Co. Vs Harry Akande (2011)4 NSCQR 611… See also Adejumo Vs Olawaiye (2014)12 NWLR (Pt 1421) 252 at 265) where the Supreme Court said; “A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal… Where a preliminary objection would not be the appropriate process to object or show to the Court defects in the processes filed before it, a motion on notice filed complaining about the grounds or defect would suffice…”

-PER I. G. MBABA, J.C.A

 

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CORPORATE PERSONALITY – CONCEPT OF CORPORATE PERSONALITY

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“The law is, however, trite that a limited liability company is a separate personality, different from its directors and promoters, and so should sue or be sued in its own name as regards its property or interest. I recently considered in depth and determined such issue in the case of Sadiq & Ors Vs Yunusa (2022) LPELR-56568 CA, where we held:

“…This calls to question the capacity of the Respondent to institute the action, having not been done jointly with the said company, Sani Brothers Ltd. And if Respondent, in fact, had the authority of the company to initiate the action, failure to produce such authority, was fatal as it would appear the Respondent was a busybody over a claim, which only the company had a duty to originate! The law is trite that a limited liability company is completely a different legal entity, separate from the persons who formed and/or promoted or run it. See the case of Abacha & Anor Vs A.G. Fed. &Ors (2013) LPELR – 21479 CA, where it was held: “The companies listed for investigation are severally a legal entity each with its individual personality. In the instant case, though the companies listed for investigation may be owned by the Abacha family, the companies are at law different persons altogether from the subscribers to the memorandum of their association. The companies are not in law the agents of the subscribers or trustees for them. The subscribers as members are not liable in any shape or form, except to the extent and in the manner provided by the Companies and Allied Matters Act, 1990. See Aso Motel Kaduna Ltd v. Deyemo (2006) 7 NWLR (pt. 978) page 93. In Ashibuogwu v. Attorney – General (Bendel) (1988), NWLR (pt.69) page 138. It was held that a government owned limited liability company possess a legal personality of its own. It can sue and be sued by its name. Its shareholders, even if the major or sole shareholder is the Federal Government, it cannot be sued for debt incurred by the Company. See Macaura v. Northern Assurance Co. Ltd. (1975) AC 619. A. L. Underwood Ltd v. Bank of Liverpool and Motors Ltd (1924) 1 KB 775. An incorporated company is a creation of law, clothed with independent legal personality from the moment of its incorporation. It has a distinct and separate personality from those that laboured to give birth to it. See Salomon v. Salomon & Co. Ltd (1897) AC 22 at 51, Trenco Nigeria Ltd v. African Real Estate Ltd(1978) 1 LRN 146 at 153, Marina Nominees Ltd v. Federal Board of Inland Revenue (1986) 2 NWLR (pt.20) page 48 at 61. A company registered is a separate and distinct entity from any one of its shareholders, no matter how many shares he may hold. See Section 37 of the Company and Allied Matters Act 1990, CBDI v. COBEC (Nig) Ltd (2004) 13 NWLR (pt. 890) page 376, K. S. O and Allied Products Ltd v. Kafa Trading Co. Ltd (1996) 3 NWLR (pt.436) Page 244.” Per ABOKI, JCA. See also New Resources Int’l Ltd and Anor Vs Oranusi (2010) LPELR – 4592 (CA), where my Lord, Okoro JCA (as he then was) stated: “Since the decision of the House of Lords in 1897 in the much celebrated case of Salomon v. Salomon and Company Ltd (1897) AC 22, it established firmly the concept of corporate personality which means that once a company is incorporated under the relevant laws, it becomes a separate person from the individuals who are its members. It has capacity to enjoy legal rights and is subjected to legal duties which do not coincide with that of its members. Such a company is said to have legal personality and is always referred to as an “artificial person”. This being the case, it can sue and be sued in its own name.”

-PER I. G. MBABA, J.C.A

 

 

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CASES CITED

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Not Available

 

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STATUTES REFERRED TO

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Court of Appeal Rules, 2016

Kano State High Court (Civil Procedure) Rules, 2014

 

 

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