DAIRO & ORS v THE REGISTERED TRUSTEES OF THE ANGLICAN DIOCESE OF LAGOS

IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, 23RD JUNE, 2017

Appeal No: SC.148/2006

CITATION:

Before Their Lordships:

OLABODE RHODES-VIVOUR, JSC

KUMAI BAYANG AKA’AHS, JSC

CHIMA CENTUS NWEZE, JSC

EJEMBI EKO, JSC

PAUL ADAMU GALINJE, JSC

BETWEEN

J. SUNKANMI DAIRO

MR. WILSON

THE REGISTERED TRUSTEES OF THE ASSEMBLY OF GOD

E. A. OGUNMAYIN

AYODELE MEGBUNAWON

AYODELE OLOWOLAGBA (AS THE HEAD AND REPRESENTATIVE OF THE OLOTO CHIEFTAINCY FAMILY)
RUFAI FASHOLA AIAYI (AS THE HEAD AND REPRESENTATIVE OF THE OLOTO CHIEFTAINCY FAMILY)

(APPELLANTS)

AND

THE REGISTERED TRUSTEES OF THE ANGLICAN DIOCESE OF LAGOS

(RESPONDENTS)

PRONOUNCEMENTS

A. ACTION
1. Capacity to Sue and be Sued – Features of a party with capacity to sue and be sued
Who has the capacity to sue and be sued in an action

“When a suit is filed in Court, it is usually the plaintiﬀ who is questioned as to whether he is a proper person, that is to say a plaintiﬀ and indeed a party in a suit must be a natural or legal person. A dead person or unincorporated company cannot sue or be sued. See Nigerian Nurses Association & Anor v. A.G. Federation (1981) 12 NSCC p.441.”Per RHODES-VIVOUR, JSC read in context

2. Traverse – Whether general denial is suﬃcient traverse of specific averment

“It is acknowledged that the implication of a general traverse had generated so much confusion in juristic thought due to the conflicts of our Courts. However, it is now, tolerably, clear that the denial of a particular paragraph in a Statement of Defence, by means of the general traverse, had the same eﬀect as a specific denial of it. Its eﬀect, solely, is to put the plaintiﬀ to strict proof of the allegation in that Paragraph, ACE Jimona Ltd v. NECC Ltd (1966) 1 All NLR 122, 124; Attah and Anor v. Nnacho and Ors (1965) NMLR 28. It has indeed been recognized as convenient and permissible. Its eﬀect is that it casts on the plaintiﬀ the burden of proving the obligation denied. Lemezie v. Onuaguluchi (1995) 12 SCNJ 120.

As shown above, in the opening paragraph of the Statement of Defence, the first defendant employed the mode of pleading known as general traverse. In the words of Mohammed JSC in Ugochukwu v. Unipetrol (Nig) Plc (2002) LPELR-3321 (SC) 7, a general traverse in the sense of a general denial is eﬀective to cast on the plaintiﬀ the burden of proving the allegations denied. According to the eminent jurist, it is not correct that, inLewis and Peat (NRL) Ltd v. Akhimien (1976) 6 SC 159, the Apex Court held that a mere traverse of material facts is not enough to deny such facts.
In my humble view, the lower Court’s error was that it did not consider the evidence elicited from the third plaintiﬀ during his cross examination. According to this witness, in cross examination, “I have not seen the Certificate of the Registered Trustees of the Anglican Diocese. The Registered Trustees of the Anglican Diocese have not been registered.”
(page 378 of the record; italics supplied for emphasis)

The above notwithstanding, I pray in aid the views of Oputa JSC in Akintola and Anor v. Solano (1986) LPELR- 360 – SC; (1986) 2 NWLR (pt. 24) 598 that the Law and Rule of pleadings do allow a general traverse (such as the first defendant employed in the opening paragraph of the Statement of Defence). Its only eﬀect is to cast on the plaintiﬀ the burden of proving the allegations, thus, generally denied. His Lordship cited with approval ACE Jimona v. NECC Ltd (supra); Warner v. Sampson (1959) 1 QB 297, 310, Akintola and Anor v. Salano (supra) at page 40; Osafile and Anor v. Odi and Anor (1994) LPELR JSC in 2784, placing reliance on the views of Lewis JSC in Mandillas and Karaberis Ltd v. Apena (1969) NMLR 199, 392-393; per Denning MR in Warner v. Sampson (supra); ACE Jimona v. NECC Ltd. (supra).

One further point on this issue is, perhaps, proper here. At one time, the use of general denial (such as was employed in Paragraph 1 of the Statement of Defence above) was said to be embarrassing, British and Colonial Land Association Ltd v. Foster and Rohins (1888) 4 TLR 574) Osafile and Anor v. Odi and Anor (supra).
However, since 1893, it has been recognized as convenient and permissible. Adkins v. Metropalitan Tramway Co (1893) 10 TLR 173; Osafile and Anor v. Odi and Anor (supra). As Denning MR pointed out in Warner v. Sampson (supra) at page 310:
Sometimes the pleader ‘denies’; sometimes, he does not admit each and every allegation; but whatever phrase is used, it all comes back to the same thing. The allegation is to be regarded ‘as if it were specifically set out and traversed seriatim. In short, it is a traverse, no more no less’.
Now, the eﬀect of a general traverse has been known to generations of pleaders. It ‘casts upon the plaintiﬀ the burden of proving the allegations denied,’ Bullen and Leake on Precedents (3rd Edition) 436. So, this general denial does no more than put the plaintiﬀ to proof. Osafile and Anor v. Odi and Anor (supra); See also, Umesie and Ors v. Onuaguluchi and Ors (1995) LPELR-3368 (SC), citing Mandillas and Karaberis Ltd v. Apena (supra); Nwokoro and Ors v. Onuma and Anor (1999) LPELR-2126 SC, 24; Odgers on High Court Pleadings and Practice (23rd Edition) 177; Benson v. Otubor (1975) LPELR – 774 (SC 0, 20.”Per NWEZE, JSC read in context

3. Capacity to Sue and be Sued –

Who has the capacity to sue and be sued in an action

“I take the further view that the trial Court equally erred in its conclusion that the “the description of the plaintiﬀs as Registered Trustees is cosmetic and is not fatal to the locus standi of the plaintiﬀ…” (page 584 of the record). In my humble view, the Court glossed over the fact that the question of legal personality borders on locus standi or capacity to sue or be sued. Contract Resources Nig Ltd v. Standard Trust Bank (2013) LPELR – SC 153/2003. Here, I take liberty to state that our law attributes juristic personality, that is, the capacity to maintain and defend actions in Court to natural persons and artificial persons or institutions. Geneva v. AfriBank Nig. Plc (2013) LPELR-SC 72/2001; Attorney General of Federation v. All Nigeria Peoples Party and Ors (2003) 12 SCM 1, 12; [2003] 18 NWLR (pt. 851) 182; (2003) 12 SC (pt. 11) 146, who are therefore known to law as legal persons. Alhaji Afia Trading and Transport Company Ltd v. Veritas Insurance Company Ltd (1986) 4 NWLR (pt. 38) 802.

In consequence, only natural persons or a body of persons whom statutes have either expressly or by implication clothed with the garment of legal personality could prosecute or defend law suits by that name. Knight and Searle v. Dove (1964) 2 All ER 307; Admin Estate of Gen. Sanni Abacha v. Eke-Spiﬀ and Ors (2009) 3 SCM 1; (2009) NWLR (pt. 1139) 92.”Per NWEZE, JSC read in context

4. Capacity to Sue and be Sued –
How to sue an unincorporated association

“Where an association of persons is unincorporated, it does not have the legal status of a juristic person. Consequently, it can sue only by a representative action. Likewise, any person who has been wronged by such an association of persons can only sue it by suing some of its members as representatives of the association. See Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (pt. 105) 558; Abakaliki LGC v. Abakaliki R.M.O. (1990) 6 NWLR (pt. 155) 182.”Per GALINJE, JSC read in context

B. COMPANY LAW
5. Juristic Personality – How to prove juristic personality

Whether juristic personality is best proved by a certificate of incorporation

“The position of the law is that if there is a pleading that impugns the juristic personality of the plaintiﬀ, the evidence needed would be to tender the Certificate of Incorporation at the trial even if there is evidence of admission about the status of the plaintiﬀ. See:A. C. B. v. Emostrade Ltd (2002) 8 NWLR (Pt. 770) 501 where Uwaifo JSC adopted the statement of Sowemimo Ag. JSC in Registered Trustees of Apostolic Church v. Attorney-General Mid-Western Nigeria ( 972) NSCC (Vol. 7) 247 where he observed at page 252:-
“We are in agreement with the leaned trial Judge that whatever may be the admission of the 3rd respondent of the status of the appellant, there is no evidence before the Court that the appellant (i.e. the Apostolic Church) was ever a corporate body. This could only be established as a matter of law by the production in evidence of the Certificate of Incorporation, admission inter partes notwithstanding”. See: also J. K. Randle v. Kwara State Breweries Ltd (1986) 6 SC 1.” Per AKA’AHS, JSC read in context

6. Certificate of Incorporation – Eﬀect of failure of the Plaintiff to produce a Certificate of Incorporation

Eﬀect of failure to produce Certificate of Incorporation when same is required

“The finding of the learned trial Judge that the description of the plaintiﬀs as Registered Trustees is cosmetic and is not fatal to the locus standi of the plaintiﬀs is standing the law on its head. The plaintiﬀs sued as Registered Trustees and not as individuals who are representing the Registered Trustees. It is therefore preposterous for the learned trial Judge to say that since the plaintiﬀs did not specifically plead that they were registered under the law, they have suﬃcient interest to institute the action. The lower Court cleverly avoided pronouncing on this misdirection in law by taking umbrage under the pleadings. It is very obvious that the respondent as plaintiﬀ failed to prove that it had the legal capacity to sue or be sued. It is not a juristic person entitled to sue and be sued in law. See: Carlen (Nig.) Ltd v. University of Jos (1994) 1 NWLR (Pt. 323) 631. In Registered Trustees of Apostolic Church v. Attorney-General Mid-Western State (1972) NSCC (Vol. 7) 247 the plaintiﬀs averred in their statement of claim that the Apostolic Church was incorporated under the Land (Perpetual Succession) Act. The defendants their statement of defence denied this and put them to strict proof. Sowemimo Ag. JSC (as he then was) said at page 250:-”Although evidence was led as to named persons being made trustees, the Certificate of Incorporation was never produced with Section 6 of the Act under consideration they have no power to sue or be liable to being sued.”

This case is on all fours with this appeal. Also in J. K. Randle v. Kwara Breweries supra where the plaintiﬀ alleged that the defendant was incorporated under the Companies Act 1968, which averment was denied and the plaintiﬀ did not lead secondary evidence of the certificate upon the failure to produce the Certificate of Incorporation despite the notice to produce served on it, this Court held that the failure to produce the Certificate of Incorporation of the defendant was fatal to the plaintiﬀ’s case. Uwais JSC (later CJN) observed as follows at Page 7:-
”The appellant sued the respondent as a company incorporated under the Companies Act 1968. He failed to prove the incorporation by the production of the Certificate of Incorporation. As the averment in the statement of claim that the defendant was so incorporated was categorically denied by the respondent in its statement of defence the failure to prove the incorporation was fatal to the appellant’s case.”
The plaintiﬀ/respondent in this appeal cannot escape the legal consequence of not producing the certificate of the Registered Trustees simply because the plaintiﬀs did not specify under what law it was registered. The appeal therefore has merit and it is allowed. The consequence of not producing the Registered Trustees’ Certificate means that the plaintiﬀ is not a juristic person capable of suing and being sued.” Per AKA’AHS, JSC (Pp. 9-11, read in context

7. Certificate of Incorporation – Eﬀect of failure of the Plaintiff to prove incorporation

*********Eﬀect of failure to produce Certificate of Incorporation when same is required

“My lords, the legal personality of a company, Registered Trustees, is established on the production of its Certificate of Incorporation. There is no evidence that the plaintiﬀ/Respondent is a legal person. The relevant certificate was never produced, rather the plaintiﬀ/Respondent’s own witness confirmed that the plaintiﬀ/respondent was not registered. Since the plaintiﬀ/respondent failed to prove its incorporation, this is fatal to its case. The plaintiﬀ/respondent has no power to sue as it is not a juristic person capable of suing or being sued. Judgment cannot be given in favour of a non-existent body such as the plaintiﬀ/respondent.” Per RHODES-VIVOUR, JSC read in context

8. Juristic Personality – Acceptable mode of proving juristic personality

Whether juristic personality is best proved by a certificate of incorporation

“From a conspectus of a host of decisions of this Court, I am emboldened in my view that the only permissible mode of proving the legal personality of Incorporated Trustees under Part C of CAMA, or Registered Trustees under the old Land (Perpetual Succession) Act, when the adversary has not admitted that status to the plaintiﬀs, is by the production in evidence of the Certificate of Incorporationn issued by the Corporate Aﬀairs Commission (CAC). Geneva v. AfriBank Nig Plc (supra); ACB v. Emostrade Ltd (2002) 8 NWLR (pt. 770) 501. Thus, where a group of persons claims to have been registered as Incorporated Trustees under Part C of CAMA, they have to produce their Certificate of Incorporation, as nothing else would suﬃce.

In eﬀect, for Incorporated Trustees to establish their juristic personality, except lf it is admitted by the opposing party, they must tender their Certificate of Incorporation under Part C of CAMA. It is, thus, not enough to describe themselves as Incorporated Trustees, Bank of Baroda v. Iyalabani Company Limited, (2002) 12 SCM 7.
Indeed, there is even a binding authority which favours the view that the status of Incorporated or Registered Trustees can only be established as a matter of law by the production in evidence of the Certificate of Incorporation under Part C of CAMA, whatever may be the admission of the defendants, Registered Trustees of Apostolic hurch v. AG Mid-West (supra); Geneva v. AfriBank (supra); J. K. Randle v. Kwara Breweries Ltd (1986) 6 SC 1.
The provisions of Section 2 Subsections (1) and (3) of the Land (Perpetual Succession) Act (now defunct), in pari materia with Section 673 (1); (2) and Section 679 (1) of the Companies and Allied Matters Act, 1990 (CAMA, for short), fell for construction in Registered Trustees, Apostolic Church v. Attorney General, Mid-Western State and Ors (1972) ANLR (Reprint) 359. This Court held that:

Although evidence was led as to named persons being made trustees, the Certificate of Incorporation was never produced. It is therefore clear that unless the plaintiﬀs could comply with Section 6 of the Act (see, now Section 679 (3) of CAMA), they have no power to sue or be liable to being sued…
In view of the above provisions of the Act the plaintiﬀ, having failed to prove their incorporation by the production of their Certificate of Incorporation, have no power to sue…In the circumstances, the plaintiﬀs/appellants’ claim must fail… (italics for emphasis)
In all, the burden of proving their status as Incorporated Trustees, therefore lay on the persons who made such positive assertion about their incorporated status. Elias v. Omo Bare (1982) 5 SC 2; Elias v. Disu (1962) 1 All NLR 214; Woluchem v. Gudi [1981] 5 SC 291; Agala and Ors v. Egwere and Ors (2010) 5 SCM 22 37.”Per NWEZE, JSC read in context

9. Juristic Personality – Burden of proof in proving juristic personality

Whether juristic personality is best proved by a certificate of incorporation

“The law is trite that the plaintiﬀ who takes out an action must be competent to institute such an action. Whenever his competency to institute the action is challenged the onus is on him to prove that he has legal capacity to institute the action. The competency to institute an action also determines the competency of the action itself. See OLORUNKEMI AJAO v. SONOLA & ANOR. (1973) 5 SC 119. Thus, in AMODU RUFAI SHITTA & ORS. v. MOMODU UGALI & ORS. (1941) 16 NLR 23, that the suit of some persons, suing as plaintiﬀs in the name on the writ as the “Executive of the Central Mosque” of Lagos, was held to be incompetent since the named plaintiﬀ lacked the legal capacity to sue. The suit was accordingly struck out.
In the instant suit, the plaintiﬀs claimed to be “The Registered Trustees of the Anglican Diocese of Lagos”. Prima facie Registered Trustees of the Anglican Diocese of Lagos appears to be a corporate and juristic personality. Once the juristic capacity is challenged, the fact of incorporation becomes a fact in issue. The onus of proving that fact lies on the party claiming to be incorporated in the name it has taken out the action as the plaintiﬀ. The burden of proof is discharged upon the production of the Certificate of Incorporation. This is a matter of fact.” Per EKO, JSC read in context

10. Juristic Personality – Acceptable mode of proving juristic personality

Whether juristic personality is best proved by a certificate of incorporation

“The law is settled beyond any argument that a person must have the requisite legal capacity to be a party to a legal suit. See Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt. 105) 558; Isa v. Amakiri (1976) 11 SC 1 at 8- 9; Kwara Hotels Ltd v. Ishola (2002) 9 NWLR (pt. 773) 604 at 622 – 623. Where the legal capacity of a party to a suit s challenged, the only way that such challenge can be rebutted is by production of a Certificate of Incorporation, where the party so challenged is not a human being, but a company or a body subject to registration by law. See ACB v. Emostrade Ltd (2002) 8 NWLR (pt. 770) 501; Registered Trustees of Apostolic Church v. A-G Mid-West Nigeria (1972) NSCC (Vol. 7) 247.”Per GALINJE, JSC read in context

11. Juristic Personality – Burden of proof in proving juristic personality

Whether juristic personality is best proved by a certificate of incorporation

“In G & T Invest Ltd v. Witt & Bush Ltd (2011) 8 NWLR (Pt. 1250) 500 at 540 Paras C – D this Court per Adekeye JSC said:

“The law is that where the legal personality of Incorporated Company is called into question and issue joined thereon, the onus is on the party claiming the status of juristic person to establish it and the corporate status of a body is established by the production of its Certificate of Incorporation.” See Section 36(6) of the Companies and Allied Matters Act, Cap 59 Laws of the Federation of Nigeria 1990; NNPC v. Lutin Investment Ltd (2006) 2 NWLR (Pt. 965) 506 at 527 Paras C – D; Onwumalu v. Osademe (1971) 1 ALL NLR (Pt. 1) 14: Oloriode v. Oyebi (1984) 1 SCNLR 390; Vulcan Gases Limited v. G. F. Ind. A-G 2007 9 NWLR (Pt.719) 610.”Per GALINJE, JSC read in context

C. COURT
12. Jurisdiction – Factors that must be present for a court to be competent to exercise jurisdiction in a suit

When is a Court competent to exercise jurisdiction over a suit

“For a Court to be competent and have jurisdiction over a matter, it is necessary that the condition that the proper and competent parties must be identified must be fulfilled. In the instant case, the respondent who initiated this action at the trial Court had no legal capacity to do so. In the circumstance, the trial Court lacked jurisdiction to hear the suit. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341.” Per GALINJE, JSC read in context

LEAD JUDGEMENT DELIVERED BY AKA’AHS, JSC

The respondent as plaintiff who instituted the action claimed in its Amended Writ of Summons and Further Amended Statement of Claim dated 17th April, 1989 the following reliefs:-

1. The sum of N11, 000.00 being special and general damages for trespass committed by the defendants on the plaintiffs land lying and situate at Iwaya, Lagos State of Nigeria, which said piece and parcel of land is covered by a Deed of Conveyance dated 30th day of June, 1948 and registered as No 42 at page 42 in Volume 776 of the register of Deeds kept in the Land Registry, Lagos.

2. Injunction restraining the defendants, his (sic) servants and/or agents from committing further acts of trespass on the said land.

In proof of its case, the plaintiff called 3 witnesses while each of the st-6th defendants testified and the 7th defendant called 4 witnesses.

In a reserved judgment, the trial Court dismissed the first claim of the plaintiff/respondent but granted the second claim as contained in the aforesaid amended writ of summons. Dissatisfied with the judgment, the appellants appealed to the Court of Appeal, Lagos (herein referred to as Court below or lower Court). In its judgment delivered on the 18/3/2002, the Court below allowed the appeal in part by dismissing the second claim of the plaintiff/respondent and in its place granted an order of injunction against the 3rd, 4th, 5th, 6th and 7th defendants/appellants and awarding N1, 000.00 as damages against the defendants/appellants. The present appeal is against the judgment of the Court of Appeal delivered on the said 18/3/2002. The Notice of Appeal filed on 17/6/2002 is to be found at pages 878-881 Volume 11 of the records of appeal and contains four grounds of appeal. An amended Notice of Appeal was filed on 20/3/2009 containing five grounds of appeal from which the appellants distilled three issues for determination as follows:-

1. Whether from the facts of this case as contained in the printed record, it can be said that the respondent has the legal capacity to institute this action, and if not, whether the trial Court had the requisite jurisdiction to entertain respondent’s suit and whether the Court of Appeal was right to affirm such jurisdiction – Grounds 1, 4 and 5.

2. Whether the appellants admitted the juristic personality of the respondent and if at all whether such admission of the appellants can confer juristic personality on the respondent where none exists – Ground 2.

3. Whether based on the foregoing, the respondents can maintain an action in trespass against the appellants – Ground 3.

The respondent also submitted three issues for determination as follows:-

(a) Whether the appellants can at this stage still raise the issue of the legal capacity of the respondent, when same have been dealt with and rejected by the two lower Courts?

b) Whether the appellants have properly joined issues with the respondent as to the juristic personality of the respondent herein?

c) Whether the respondent can maintain this action?

A person must have the requisite legal capacity to be a party to a law suit See: Fawehinmi v. Nigeria Bar

Association (No. 2) (1989) 2 NWLR (Pt. 105) 558; Iga v. Amakiri (1976) 11 SC 1 at 8-9; Kwara Hotels Ltd v. Ishola 2002 9 NWLR (Pt. 773) 604 at 622-623. Learned counsel for the appellants submitted that from the facts adduced at the trial Court and as contained in the printed record, the Respondent has not established its legal capacity/competence to institute this action. He contended that where the legal personality of a company or corporation called into question and issue joined thereon, the Certificate of Incorporation should be produced as it is only by that Certificate of Incorporation that its legal personality can be proved.

In response, learned counsel for the respondent referred to Paragraph 1 of the respondent’s further amended Statement of Claim where it was pleaded:-

“1. The Plaintiff(s) at all material times to this action are the Registered Trustees of the Anglican Diocese of Lagos and have their office at 2, Bishop’s Court Marina, Lagos” – and submitted that none of the present appellants (who were 7 in number at the trial Court) specifically joined issues with the above assertion of the Plaintiff/Respondent. It is learned counsel’s argument that the appellants’ statement of defence contained only a bare and evasive denial as to the juristic position of the Plaintiff/Respondent. He said that despite the deliberate refusal by the appellants to join issues with the Respondent at the trial Court, the appellants proceeded in their address to raise same at the Court of Appeal and the Court of Appeal agreed with the findings made by the trial Court.”

The position of the law is that if there is a pleading that impugns the juristic personality of the plaintiff, the evidence needed would be to tender the Certificate of Incorporation at the trial even if there is evidence of admission about the status of the plaintiff. See:A. C. B. v. Emostrade Ltd (2002) 8 NWLR (Pt. 770) 501 where Uwaifo JSC adopted the statement of Sowemimo Ag. JSC in Registered Trustees of Apostolic Church v. Attorney-General Mid-Western Nigeria (1972) NSCC (Vol. 7) 247 where he observed at page 252:-

“We are in agreement with the leaned trial Judge that whatever may be the admission of the 3rd respondent of the status of the appellant, there is no evidence before the Court that the appellant (i.e. the Apostolic Church) was ever a corporate body. This could only be established as a matter of law by the production in evidence of the Certificate of Incorporation, admission inter partes notwithstanding”. See: also J. K. Randle v. Kwara State Breweries Ltd (1986) 6 SC 1.

In Paragraph 1 of the further amended Statement of Claim, the plaintiff averred as follows:-

“1. The plaintiffs at all material times to this action are the Registered Trustees of the Anglican Diocese of Lagos and have their office at 2, Bishop’s Court, Marina, Lagos.”

In the amended Statement of Defence the 1st defendant pleaded as follows:-

“SAVE and except where expressly admitted the 1st defendant denies each and every allegation of facts contained in the further amended statement of claim dated 17th April, 1989, if same were set out seriatim and specifically traversed.

1. The 1st defendant denies Paragraphs 1 and 2 of the further amended statement of claim and says that he is a boundary man with the plaintiffs.”

Chief Benjamin Sunday Adekunle Ajayi, one of the Trustees of the Anglican Diocese testified as the 3rd Plaintiff witness.

When he was cross- examined he said:-

“I have not seen the certificate of the Registered Trustees of the Anglican Diocese. The Registered Trustees of the Anglican Diocese have not been registered (see page 378 lines 17-20 of the records).”

The learned trial Judge noted this fact when reviewing the evidence of the witnesses and found at page 584 of the records that:-

“The description of the plaintiffs as Registered Trustees is cosmetic and is not fatal to the locus standi of the plaintiffs, a fortiorari, when they did not specifically plead that they were registered under the law, the naming of two out of the three Trustees is also not fatal to the locus standi of the plaintiffs. The plaintiffs have sufficient interest to institute this action. It was not contested by the defendants that an unregistered Trustees of the Anglican Diocese of Lagos could not sue or be sued.”

Before the making of this finding, the learned trial Judge had stated that the 1st or 3rd plaintiff’s witness ought to have given evidence of succession to the Trusteeship of the Anglican Diocese of Lagos from the officers named in the conveyance i.e. the present Bishop of Lagos, the Chancellor and Diocesan Secretary.

The 1st, 4th, 5th and 6th defendants were dissatisfied with the judgment and appealed against to the Court of Appeal Lagos. In their amended Notice of Appeal of 24/5/2002 containing 8 grounds of appeal, the appellants raised the issue whether the plaintiff, though unregistered, had juristic personality to sue and maintain the action as “The Registered Trustees of the Anglican Diocese of Lagos”.

In the judgment of the Court of Appeal per Aderemi JCA(as he then was) at page 855, he acknowledged the fact that it was the plaintiff that asserted its juristic personality that had the onus of proof. He however went further to state that issues before the Court are decided on the pleadings of the parties and to raise an issue of fact there must be a proper traverse and the denial must be specific. He examined the pleadings and arrived at the conclusion that the issue of the juristic personality of the plaintiff has not arisen for determination as same had been deemed admitted in law.

I am completely at sea as to which pleadings were deemed admitted. The 1st defendant was clear as crystal in his denial of the claim by the plaintiff to be a juristic personality. When the plaintiffs claimed to be the Registered Trustees of the Anglican Diocese of Lagos, the 1st defendant in his preamble expressly denied every allegation of fact contained in the further amended statement of claim and went further to specifically deny Paragraphs 1 and 2 of the further amended statement of claim. The evidence of the 3rd plaintiff witness, Chief Benjamin Sunday Adekunle Ajayi, one of the Trustees of the Anglican Diocese of Lagos shattered the plaintiffs’ claim to being registered since he had never seen the certificate of the Registered Trustees and truthfully told the Court that the Trustees are not registered. This is an admission against interest. See: Section 24(c) Evidence Act.

The finding of the learned trial Judge that the description of the plaintiffs as Registered Trustees is cosmetic and is not fatal to the locus standi of the plaintiffs is standing the law on its head. The plaintiffs sued as Registered Trustees and not as individuals who are representing the Registered Trustees. It is therefore preposterous for the learned trial Judge to say that since the plaintiffs did not specifically plead that they were registered under the law, they have sufficient interest to institute the action. The lower Court cleverly avoided pronouncing on this misdirection in law by taking umbrage under the pleadings. It is very obvious that the respondent as plaintiff failed to prove that it had the legal capacity to sue or be sued. It is not a juristic person entitled to sue and be sued in law. See: Carlen (Nig.) Ltd v. University of Jos (1994) 1 NWLR (Pt. 323) 631. In Registered Trustees of Apostolic Church v. Attorney-General Mid-Western State (1972) NSCC (Vol. 7) 247 the plaintiffs averred in their statement of claim that the Apostolic Church was incorporated under the Land (Perpetual Succession) Act. The defendants their statement of defence denied this and put them to strict proof. Sowemimo Ag. JSC (as he then was) said at page 250:-

”Although evidence was led as to named persons being made trustees, the Certificate of Incorporation was never produced with Section 6 of the Act under consideration they have no power to sue or be liable to being sued.”

This case is on all fours with this appeal. Also in J. K. Randle v. Kwara Breweries supra where the plaintiff alleged that the defendant was incorporated under the Companies Act 1968, which averment was denied and the plaintiff did not lead secondary evidence of the certificate upon the failure to produce the Certificate of Incorporation despite the notice to produce served on it, this Court held that the failure to produce the Certificate of Incorporation of the defendant was fatal to the plaintiff’s case. Uwais JSC (later CJN) observed as follows at Page 7:-

”The appellant sued the respondent as a company incorporated under the Companies Act 1968. He failed to prove the incorporation by the production of the Certificate of Incorporation. As the averment in the statement of claim that the defendant was so incorporated was categorically denied by the respondent in its statement of defence the failure to prove the incorporation was fatal to the appellant’s case.”

The plaintiff/respondent in this appeal cannot escape the legal consequence of not producing the certificate of the Registered Trustees simply because the plaintiffs did not specify under what law it was registered. The appeal therefore has merit and it is allowed. The consequence of not producing the Registered Trustees’ Certificate means that the plaintiff is not a juristic person capable of suing and being sued.

Accordingly, the judgment entered by the High Court, Lagos and affirmed by the Court of Appeal is a nullity and is hereby set aside. I make no order as to costs.

RHODES-VIVOUR, JSC

I have had the advantage of reading in draft the leading judgment of my learned brother Aka’ahs JSC. I agree with his lordship that the judgment of the Court of Appeal is a nullity. I intend to add a few words of mine on why the judgment of the trial Court and the judgment of the Court of Appeal are nullities.

When a suit is filed in Court, it is usually the plaintiff who is questioned as to whether he is a proper person, that is to say a plaintiff and indeed a party in a suit must be a natural or legal person. A dead person or unincorporated company cannot sue or be sued. See Nigerian Nurses Association & Anor v. A.G. Federation (1981) 12 NSCC p.441.

In the trial Court, the respondent was the plaintiff. Its witness, Chief B.S.A. Ajayi one of the Trustees of the Anglican Diocese of Lagos said on oath the he had never seen the certificate of the Registered Trustees and that the Trustees were not registered.

My lords, the legal personality of a company, Registered Trustees, is established on the production of its Certificate of Incorporation. There is no evidence that the plaintiff/respondent is a legal person. The relevant certificate was never produced, rather the plaintiff/respondent’s own witness confirmed that the plaintiff/respondent was not registered. Since the plaintiff/respondent failed to prove its incorporation, this is fatal to its case. The plaintiff/respondent has no power to sue as it is not a juristic person capable of suing or being sued. Judgment cannot be given in favour of a non-existent body such as the plaintiff/respondent. For this, and the more detailed reasoning and conclusion in the leading judgment, I agree with his lordship Aka’ahs JSC that the judgment of the trial Court is nullity, and the judgment of the Court of Appeal which affirmed the judgment of the trial Court is also a nullity.

NWEZE, JSC

My Lord, Aka’ahs, JSC, obliged me with the draft of the leading judgment just delivered now. I agree with His Lordship that the judgment of the lower Court, which affirmed the judgment of the trial Court is a nullity. As such, it ought to be set aside.

The said judgment of the lower Court completely overlooked the general traverse in the Statement of Defence. It was couched in the standard format of general traverse as employed by pleaders over the ages:

Save and except where expressly admitted, the first defendant denies each and every allegation of facts contained in the Further Amended Statement of Claim dated 17th April, 1989, as if same were set out seriatim and, specifically traversed.

1. The first defendant denies Paragraphs 1 and 2 of the Further Amended Statement of Claim and says that he is a boundary man with the plaintiffs

It is acknowledged that the implication of a general traverse had generated so much confusion in juristic thought due to the conflicting pronouncements of our Courts. However, it is now, tolerably, clear that the denial of a particular paragraph in a Statement of Defence, by means of the general traverse, had the same effect as a specific denial of it. Its effect, solely, is to put the plaintiff to strict proof of the allegation in that Paragraph, ACE Jimona Ltd v. NECC Ltd (1966) 1 All NLR 122, 124; Attah and Anor v. Nnacho and Ors (1965) NMLR 28. It has indeed been recognized as convenient and permissible. Its effect is that it casts on the plaintiff the burden of proving the obligation denied. Lemezie v. Onuaguluchi (1995) 12 SCNJ 120.

In my humble view, the lower Court’s error was that it did not consider the evidence elicited from the third plaintiff during his cross examination. According to this witness, in cross examination, “I have not seen the Certificate of the Registered Trustees of the Anglican Diocese. The Registered Trustees of the Anglican Diocese have not been registered.”

(page 378 of the record; italics supplied for emphasis)

The above notwithstanding, I pray in aid the views of Oputa JSC in Akintola and Anor v. Solano (1986) LPELR-360-SC; (1986) 2 NWLR (pt. 24) 598 that the Law and Rule of pleadings do allow a general traverse (such as the first defendant employed in the opening paragraph of the Statement of Defence). Its only effect is to cast on the plaintiff the burden of proving the allegations, thus, generally denied. His Lordship cited with approval ACE Jimona v. NECC Ltd (supra); Warner v. Sampson (1959) 1 QB 297, 310, Akintola and Anor v. Salano (supra) at page 40; Osafile and Anor v. Odi and Anor (1994) LPELR JSC in 2784, placing reliance on the views of Lewis JSC in Mandillas and Karaberis Ltd v. Apena (1969) NMLR 199, 392-393; per Denning MR in Warner v. Sampson (supra); ACE Jimona v. NECC Ltd. (supra).

However, since 1893, it has been recognized as convenient and permissible. Adkins v. Metropalitan Tramway Co (1893) 10 TLR 173; Osafile and Anor v. Odi and Anor (supra). As Denning MR pointed out in Warner v. Sampson (supra) at page 310:

Sometimes the pleader ‘denies’; sometimes, he does not admit each and every allegation; but whatever phrase is used, it all comes back to the same thing. The allegation is to be regarded ‘as if it were specifically set out and traversed seriatim. In short, it is a traverse, no more no less’.

Now, the effect of a general traverse has been known to generations of pleaders. It ‘casts upon the plaintiff the burden of proving the allegations denied,’ Bullen and Leake on Precedents (3rd Edition) 436. So, this general denial does no more than put the plaintiff to proof. Osafile and Anor v. Odi and Anor (supra); See also, Umesie and Ors v. Onuaguluchi and Ors (1995) LPELR-3368 (SC), citing Mandillas and Karaberis Ltd v. Apena (supra);
Nwokoro and Ors v. Onuma and Anor (1999) LPELR- 126 SC, 24; Odgers on High Court Pleadings and Practice (23rd Edition) 177; Benson v. Otubor (1975) LPELR – 774 (SC).

I take the further view that the trial Court equally erred in its conclusion that the “the description of the plaintiffs as Registered Trustees is cosmetic and is not fatal to the locus standi of the plaintiff…” (page 584 of the record). In my humble view, the Court glossed over the fact that the question of legal personality borders on locus standi or capacity to sue or be sued. Contract Resources Nig Ltd v. Standard Trust Bank (2013) LPELR – SC 153/2003. Here, I take liberty to state that our law attributes juristic personality, that is, the capacity to maintain and defend actions in Court to natural persons and artificial persons or institutions. Geneva v. AfriBank Nig. Plc (2013) LPELR- SC 72/2001; Attorney General of Federation v. All Nigeria Peoples Party and Ors (200 ) 12 SCM 1, 12; [2003] 18 NWLR (pt. 851) 182; (2003) 12 SC (pt. 11) 146, who are therefore known to law as legal persons. Alhaji Afia Trading and Transport Company Ltd v. Veritas Insurance Company Ltd (1986) 4 NWLR (pt. 38) 802.

In consequence, only natural persons or a body of persons whom statutes have either expressly or by implication clothed with the garment of legal personality could prosecute or defend law suits by that name. Knight and Searle v. Dove (1964) 2 All ER 307; Admin Estate of Gen. Sanni Abacha v. Eke-Spiff and Ors (2009) 3 SCM 1; (2009) NWLR (pt.1139) 92.

From a conspectus of a host of decisions of this Court, I am emboldened in my view that the only permissible mode of proving the legal personality of Incorporated Trustees under Part C of CAMA, or Registered Trustees under the old Land (Perpetual Succession) Act, when the adversary has not admitted that status to the plaintiffs, is by the production in evidence of the Certificate of Incorporation issued by the Corporate Affairs Commission (CAC). Geneva v. AfriBank Nig Plc (supra); ACB v. Emostrade Ltd (2002) 8 NWLR (pt. 770) 501. Thus, where a group of persons claims to have been registered as Incorporated Trustees under Part C of CAMA, they have to produce their Certificate of Incorporation, as nothing else would suffice.
In effect, for Incorporated Trustees to establish their juristic personality, except lf it is admitted by the opposing party, they must tender their Certificate of Incorporation under Part C of CAMA. It is, thus, not enough to describe themselves as Incorporated Trustees, Bank of Baroda v. Iyalabani Company Limited, (2002) 12 SCM 7.

Indeed, there is even a binding authority which favours the view that the status of Incorporated or Registered Trustees can only be established as a matter of law by the production in evidence of the Certificate of Incorporation under Part C of CAMA, whatever may be the admission of the defendants, Registered Trustees of Apostolic Church v. AG Mid-West (supra); Geneva v. AfriBank (supra); J. K. Randle v. Kwara Breweries Ltd (1986) 6 SC 1.

The provisions of Section 2 Subsections (1) and (3) of the Land (Perpetual Succession) Act (now defunct, in pari materia with Section 673 (1); (2) and Section 679 (1) of the Companies and Allied Matters Act, 1990 (CAMA, for short), fell for construction in Registered Trustees, Apostolic Church v. Attorney General, Mid-Western State and Ors (1972) ANLR (Reprint) 359. This Court held that: Although evidence was led as to named persons being made trustees, the Certificate of Incorporation was never produced. It is therefore clear that unless the plaintiffs could comply with Section 6 of the Act (see, now Section 679 (3) of CAMA), they have no power to sue or be liable to being sued…

In view of the above provisions of the Act the plaintiff, having failed to prove their incorporation by the production of their Certificate of Incorporation, have no power to sue…In the circumstances, the plaintiffs/appellants’ claim must fail… (italics for emphasis)

In all, the burden of proving their status as Incorporated Trustees, therefore lay on the persons who made such positive assertion about their incorporated status. Elias v.
Omo Bare (1982) 5 SC 2; Elias v. Disu (1962) 1 All NLR 214; Woluchem v. Gudi [1981] 5 SC 291; Agala and Ors v. Egwere and Ors (2010) 5 SCM 22 37.

In all, therefore, the judgment of the lower Court which affirmed the trial Court’s judgment being a nullity cannot be allowed to stand. It is accordingly set aside.

EKO, JSC

The law is trite that the plaintiff who takes out an action must be competent to institute such an action. Whenever his competency to institute the action is challenged the onus is on him to prove that he has legal capacity to institute the action. The competency to institute an action also determines the competency of the action itself. See OLORUNKEMI AJAO v. SONOLA & ANOR. (1973) 5 SC 119. Thus, in AMODU RUFAI SHITTA & ORS. v. MOMODU UGALI & ORS. (1941) 16 NLR 23, that the suit of some persons, suing as plaintiffs in the name on the writ as the “Executive of the Central Mosque” of Lagos, was held to be incompetent since the named plaintiff lacked the legal capacity to sue. The suit was accordingly struck out.

In the instant suit, the plaintiffs claimed to be “The Registered Trustees of the Anglican Diocese of Lagos”. Prima facie Registered Trustees of the Anglican Diocese of Lagos appears to be a corporate and juristic personality. Once the juristic capacity is challenged, the fact of incorporation becomes a fact in issue. The onus of proving that fact lies on the party claiming to be incorporated in the name it has taken out the action as the plaintiff. The burden of proof is discharged upon the production of the Certificate of Incorporation. This is a matter of fact.

The purported incorporation of the Registered Trustees of the Anglican Diocese of Lagos was denied by the defence in this case. It was specifically challenged. The fact of their incorporation had therefore become a fact in issue. Not only that the Respondents as the plaintiffs did not prove their incorporation; the evidence of PW.3, one of the acclaimed trustees, was most fatal and devastating. At pages 505 – 566 of the Record, the PW.3 admitted that he had never seen the certificate of incorporation of the plaintiffs/Respondents as registered Trustees of the Anglican Diocese of Lagos and further that the plaintiffs/Respondents were not registered or incorporated as they claimed. This piece of evidence has completely routed the pleading of the plaintiffs in Paragraph 1 of their Amended Statement of Claim, wherein it is claimed that – “The plaintiffs at all material times, are the registered trustees of the Anglican Diocese.”

On the pleadings and evidence in the suit, the action taken out by incompetent plaintiffs, was incompetent. It ought to have been struck out by the trial Court. It was erroneously not struck out. The decision to sustain the action, notwithstanding its incompetence, was affirmed erroneously by the Court of Appeal.

I agree completely with my learned brother, KUMAI BAYANG AKA’AHS, JSC, that the two Courts below were wrong in not striking out the incompetent suit. He has given the fuller reasons in the Lead Judgment, justifying this appeal being allowed. I hereby adopt the judgment including all the consequential orders made therein. I allow the appeal.

GALINJE, JSC

By a further Amended Statement of claim dated 17th April, 1989, the Respondent herein who was the plaintiff at the Lagos State High Court claimed against the Appellants the following reliefs:-
(1) The sum of N11,000.00 being special and general damages for trespass committed by the defendants on the plaintiff’s land lying and situate at Iwoya Lagos State of Nigeria, which said piece and parcel of land is covered by a Deed of Conveyance date the 30th day of June, 1948 and registered at N0.42 at page 2 in Volume 776 of the register of Deeds kept in the lands Registry, Lagos.

(2) Injunction restraining the defendants, his servants and/or agents from committing further acts of trespass on the said land.

The Appellants as respondents filed their respective Statements of defence. Issues having been joined, the case proceeded to trial. Parties called witnesses in proof of their respective positions. At the end of the trial and in a reserved and considered judgment Adeyinka J. dismissed the first claim, but went on to grant the 2nd claim in which the Appellants were restrained from further acts of trespass on the said land. Dissatisfied with the decision, the Appellants appealed to the Court of Appeal, Lagos Division. The Court of Appeal in its judgment delivered on the 18th March, 2002 allowed the appeal in part, by dismissing the 2nd claim of the Respondent, and in its place granted an order of injunction against the 3rd, 4th, 5th, 6th and 7th Appellants and awarded the sum of N1,000.00 as damages against the appellants. Once again, the Appellants were dissatisfied with the decision of the Court of Appeal. They have now brought this appeal against the decision of the Court of Appeal (lower Court). Their initial notice of appeal dated and filed on the 17th June, 2002 contains four grounds of appeal. This initial notice of appeal was amended. The amended notice of appeal dated and filed on the 20th March, 2009, contains five grounds of appeal. Parties filed and exchanged briefs of argument. Mr. Ebun-Olu Adegboruwa, learned counsel for the appellant distilled three issues for determination of this appeal as follows:

1. Whether from the facts of this case as contained in the printed record, it can be said that the Respondent has the legal capacity to institute this action, and if not whether the trial Court had the requisite jurisdiction to entertain respondent’s suit and whether the Court of Appeal was right to affirm such jurisdiction.

2. Whether the appellants admitted the juristic personality of the respondent and if at all, whether such admission of the appellants can confer juristic personality on the respondent where none exists.

3. Whether based on the foregoing, the respondent can maintain an action in trespass against the appellants.

Mr. Fred Agbaje, learned counsel for the Respondent also formulated three issues for determination of this appeal as follows:-

1. Whether the appellants can at this stage still raise the issue of the legal capacity of the respondent, when same have been dealt with and rejected by the two lower Court?

2. Whether the appellants have properly joined issues with the respondent as to the juristic personality of the respondent herein?

3. Whether the respondent can maintain this action.

I have read through the briefs of argument of parties and I am of the firm view that the only issue calling for determination of this appeal is whether the respondent has the legal capacity to institute this action the way it did. In arguing the appeal, learned counsel for the appellants submitted that the respondent had no legal capacity to institute this case in the first place, since there is no evidence that it is a registered trustee. In aid, learned counsel cited Reg. Trustees of Apostolic Church v. A-G Mid-West State & Ors (1972) NSCC 247; ACB Plc v. Emostrade Ltd (2002) 8 NWLR (Pt. 770) 515. In a further argument, earned counsel submitted that where a party lacks the legal capacity to institute an action, the Court will be robbed of the jurisdiction to entertain the action, since competence of a party before a Court is a jurisdictional issue. In aid, the authorities in Ajao v. Sonola (1973) 5 SC 119 at 123; Quo Vadis Hotel v. Commissioner (1973) 6 SC 71 at 82: Bank of Baroda v. Iyalabani Co. Ltd (2002) 3 NWLR (Pt. 785) 551 at 558 – 589 Paras G – E were cited.

On whether the appellants admitted the respondent’s legal capacity, learned counsel submitted that the appellants having denied Paragraph 1 of the further amended statement of claim where the respondent claimed that it was a registered trustee, the onus was on the respondent to establish its legal personality, and that no amount of admission could alter the juristic personality of the respondent.

It is learned counsel’s argument that parties cannot by their action or inaction confer jurisdiction on the Court where none exists.

In aid, learned counsel cited Fawehinmi v. NBA (1991) NWLR (pt. 105) 558 at 632 Para D.

The law is settled beyond any argument that a person must have the requisite legal capacity to be a party to a legal suit. See Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt. 105) 558; Isa v. Amakiri (1976) 11 SC 1 at 8- 9; Kwara Hotels Ltd v. Ishola (2002) 9 NWLR (pt. 773) 604 at 622 – 623. Where the legal capacity of a party to a suit s challenged, the only way that such challenge can be rebutted is by production of a Certificate of Incorporation, where the party so challenged is not a human being, but a company or a body subject to registration by law. See ACB v. Emostrade Ltd (2002) 8 NWLR (pt. 770) 501; Registered Trustees of Apostolic Church v. A-G Mid-West Nigeria (1972) NSCC (Vol. 7) 247.

The Respondent as plaintiff pleaded at Paragraph 1 of its further amended statement of claim, that at all material times to this action, it is a Registered Trustee of the Anglican Diocese of Lagos with its Office at No. 2 Bishop’s Court, Marina Lagos. The 1st defendant in its amended statement of defence denied the respondent’s averment contained Paragraph 1 of the further amended statement of claim.

The Respondent throughout its case did not produce its certificate of registration. To further compound the problem of the respondent, its witnesses, one Chief Benjamin Sunday Adekunle Ajayi, who was one of the Trustees of the Anglican Diocese under cross exam nation admitted the following:-

“I have not seen the Certificate of the Registered Trustees of the Anglican Diocese. The Registered Trustees of the Anglican Diocese have not been registered.” (See page 378 lines 17 – 20 of the record.)

In G & T Invest Ltd v. Witt & Bush Ltd (2011) 8 NWLR (Pt. 1250) 500 at 540 Paras C – D this Court per Adekeye JSC said:

In the instant case, the respondent who claimed to be a registered trustee failed to produce the Certificate of Registration with the confirmation of Chief Benjamin Sunday Adekunle Ajayi that he has not seen the Certificate of Registration of the respondent, the respondent herein has failed to prove that it had the requisite legal capacity to sue the appellant. Where an association of persons is unincorporated, it does not have the legal status of a juristic person. Consequently, it can sue only by a representative action. Likewise, any person who has been wronged by such an association of persons can only sue it by suing some of its members as representatives of the association. See Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (pt. 105) 558; Abakaliki LGC v. Abakaliki R.M.O. (1990) 6 NWLR (pt. 155) 182.

For a Court to be competent and have jurisdiction over a matter, it is necessary that the condition that the proper and competent parties must be identified must be fulfilled. In the instant case, the respondent who initiated this action at the trial Court had no legal capacity to do so. In the circumstance, the trial Court lacked jurisdiction to hear the suit. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341.

For these few words and the more detailed reasoning in the lead judgment of my learned brother, Aka’ahs JSC which I adopt as mine, this appeal shall be and it is hereby allowed. The judgment of the High Court which was confirmed by the Court of Appeal is hereby set aside and quashed for being a nullity.

I make no order as to cost.