CORAM

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Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice Court of Appeal

Muslim Sule Hassan Justice Court of Appeal

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PARTIES

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1. NIGERIAN DEFENCE ACADAMY

2. MAJOR GENERAL MOHAMMED INUWA IDRIS

3. AIR COMMODORE FRANK G OPARA

APPELLANTS 

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C.J. GROCERY TRADING COMPANY LIMITED

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, ADMINISTRATIVE LAW, PROPERTY LAW, TRESPASS, PRACTICE AND PROCEDURE, EVIDENCE, JURISTIC PERSONALITY, DAMAGES

 

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SUMMARY OF FACTS

The case originated from the Kaduna State High Court sitting at Kaduna. The Respondent (C.J. Grocery Trading Company Limited), who was the Plaintiff at the trial Court, commenced the suit by way of writ of summons dated May 4, 2015. The Respondent claimed to have purchased a property known as 2B Lokoja Crescent, Barnawa, Kaduna from one Mrs. Nike Kudirat Gomina, a nurse who worked for the 1st Appellant (Nigerian Defence Academy). The purchase was allegedly done pursuant to a deed of assignment, and documents of the property were handed over to the Respondent.

However, in 2015, the Appellants allegedly used force to enter the property, displaced all persons therein, and took possession of it. Orders made by the Court for the Appellants to release the property fell on deaf ears.

The trial judge, Hon. Justice B.U. Sokola, took evidence and prepared his judgment but passed away before delivery. The judgment was subsequently read by Hon. Justice Dakkas of the Kaduna State High Court, wherein the Court granted all the reliefs sought by the Respondent. Aggrieved by this decision, the Appellants filed this appeal.

 

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HELD

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1. The appeal was allowed.

2. The case was remitted to the trial Court for re-assignment by the Chief Judge of Kaduna State High Court to a new Coram and to be tried afresh with an order of accelerated hearing.

3. The Court determined that a judgment written by a deceased judge cannot be read by another judge.

 

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ISSUES

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1. Whether or not the Respondent, a limited liability company which failed to prove its juristic existence can justifiably be entitled to any reliefs legally from any Court?

2. Whether or not the delivery of the judgment of a late Judge who wrote but was unable to deliver same by another judge was not a breach of the Constitution of the Federal Republic of Nigeria?

3. Whether or not the act of levying execution on the property of the appellant premised on declaratory reliefs were not wrongful and illegal?

4. Whether the lower Court was right and justified in granting at interlocutory stage, a substantive relief parties are yet to prove their cases?

5. Whether from the paucity of evidence in support of the Respondent’s claim and from the totality of legal principles, the lower Court was correct and justified to award the various heads of damages in favor of the Respondent?

 

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RATIONES DECIDENDI

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JUDGMENT OF DECEASED JUDGE – VALIDITY OF JUDGMENT WRITTEN BY A DECEASED JUDGE

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“The eligibility of a judge of the High Court to read the judgment written by another judge depends on a number of factors and conditions. A judge of the High Court cannot read the judgment of another judge who had ceased to be a judicial officer, or has been elevated to a higher bench or has otherwise vacated the office. Similarly, trial judge cannot write a judgment based on the recorded evidence of witnesses in a case he did not participate from the beginning to the end. A judgment written by a judge who is no longer a judicial officer is no judgment that can be read by a serving judge of the Court.” – Per Muslim Sule Hassan, J.C.A.

 

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ELIGIBILITY TO DELIVER JUDGMENT – COMPETENCE OF A JUDGE TO WRITE OR SIGN JUDGMENT

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“A trial judge who did not participate in the hearing of a case from the beginning to the end to observe the demeanor of witnesses or one who has ceased to be a judicial officer has no business and indeed no competence to write or sign a judgment for another judge to read.” – Per Muslim Sule Hassan, J.C.A.

 

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FUNDAMENTAL NATURE OF JUDGE’S DEATH – EFFECT ON OUTCOME OF CASE

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“The death of the trial judge who heard the matter is fundamental to the outcome of the case and Respondent, having conceded that the matter be remitted back for re-trial, this Court cannot interfere with the decision of the parties.” – Per Abimbola Osarugue Obaseki-Adejumo, J.C.A.

 

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JURISTIC PERSONALITY – BURDEN OF PROVING LEGAL EXISTENCE OF A COMPANY

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“For a party to be competent to sue, it must show that it is recognized as a natural person or an artificial person who is a creation of law and the Court cannot confer on an entity corporate existence, but the law.” – Per Muslim Sule Hassan, J.C.A.

 

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BURDEN OF PROOF – ONUS ON ARTIFICIAL PERSON WHOSE CAPACITY IS CHALLENGED

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“Where the person filing a suit is an artificial person and his capacity to sue is being challenged, the burden lies on the Plaintiff to establish his competence.” – Per Muslim Sule Hassan, J.C.A.

 

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CHALLENGED AVERMENTS – NEED FOR PROOF OF CHALLENGED PLEADINGS

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“Where an averment is challenged, it must be proved, and the averment of the Respondent that she is a limited liability company which was challenged by the Appellants without proof must be discountenance as having been unproved.” – Per Muslim Sule Hassan, J.C.A.

 

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LEGAL STATUS OF PLAINTIFF – REQUIREMENT FOR JURISTIC PERSONALITY

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“This is enough proof of the non-existence of the plaintiff as a limited liability company, and it has no legal statute and thus cannot maintain the action against the appellants.” – Per Muslim Sule Hassan, J.C.A.

 

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BURDEN OF ESTABLISHING CORPORATE EXISTENCE – FAILURE OF PROOF

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“The burden of establishing the existence of the company as a corporate person lies on the Respondent who was plaintiff and who will fail if evidence of the existence of the company was not provided, as all the Appellants were expected to do was to deny the existence of the Respondent which they did, and the respondent failed to produce any credible proof of its existence.” – Per Muslim Sule Hassan, J.C.A.

 

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GENERAL DENIAL – EFFECT OF GENERAL TRAVERSE IN PLEADINGS

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“The appellants as defendants never joint issue with the respondent on the issue of her legal personality, except for the denial in paragraph 1 of their defence which according to counsel amount simply to general traverse and by Order 17 Rule 2 of the Kaduna State High Court Civil Procedure Rules, general denial does not amount to specific denial of any fact in the pleading.” – Per Muslim Sule Hassan, J.C.A.

 

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VALIDITY OF JUDGMENT – COMPLIANCE WITH CONSTITUTIONAL TIME REQUIREMENTS

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“The fact that the judgment was written outside three months by Section 294 (5) of the Constitution does not vitiate the judgment as no miscarriage of justice was occasioned the appellants.” – Per Muslim Sule Hassan, J.C.A.

 

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DECLARATORY JUDGMENTS – EXECUTABILITY OF DECLARATORY RELIEFS

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“Declaratory judgment as can be seen from the reliefs sought by the Respondent only declare the existence of right but same cannot be executed.” – Per Muslim Sule Hassan, J.C.A.

 

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INTERLOCUTORY INJUNCTION – LIMITS ON GRANTING SUBSTANTIVE RELIEF AT INTERLOCUTORY STAGE

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“The granting of interlocutory injunction must make pronouncements that will prejudice the substantive suit, otherwise it would prejudge matters which evidence is yet to be led.” – Per Muslim Sule Hassan, J.C.A.

 

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AWARD OF DAMAGES – JUDICIAL DISCRETION AND LIMITATIONS

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“Although the trial Court has discretion to grant damages, this is limited by caution, prudence and remoteness of damages which must not be arbitrary.” – Per Muslim Sule Hassan, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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• Constitution of the Federal Republic of Nigeria 1999 (as amended)

• Kaduna State High Court Civil Procedure Rules

• Police Regulations

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