NICKOK BEST INTERNATIONAL LIMITED V UNITED BANK FOR AFRICA

IN THE COURT OF APPEAL
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

ON WEDNESDAY, 13TH JUNE, 2018

Suit No: CA/L/206/2013

CITATION:

Before Their Lordships:

MOHAMMED LAWAL GARBA, JCA

JOSEPH SHAGBAOR IKYEGH, JCA

JAMILU YAMMAMA TUKUR, JCA

BETWEEN

NICKOK BEST INTERNATIONAL LIMITED
(APPELLANT)

AND

UNITED BANK FOR AFRICA
(RESPONDENT)

PRONOUNCEMENT

A. ACTION
1. Capacity to sue and be sued – The position of the law on people that have the capacity to sue and be sued
Categories of persons who can sue and be sued in law

By way a general restatement of the law, any person; natural or artificial, may sue or be sued in a legal action before the Courts of law in Nigeria. See Fawehinmi v. NBA (No.2) (1992) 2 NWLR (105) 558; Nwokedi v. R.T.A. Limited (2002) 6 NWLR (762) 181; Ataguba & Company Limited v. Gura Nigeria Limited (2005) 2 SCNJ, 139, (2005) ALL FWLR (256) 1219; Christaben Group Limited v. Oni (2008) 17 NWLR (1097) 84, Anozie v. Attorney General, Lagos State (2010) 15 NWLR (1216) 207. It is also the law that no action can be brought or initiated by or against any party other than a natural person or persons, unless such party has been given, by statute, expressly or impliedly, or by common law, either: –

(1) A legal person under the name by which it sues or is sued

(2) A right to sue or be sued by the name.

See: Ndoma Egba v. Governor, Cross River State (1991) 4 NWLR (188) 773; Fawehinmi v. NBA No. (2) (supra), Maerskline Limited v. Addide (2001) 1 NWLR (694 405; P.M.A. Odunde & Company v. Okike (1995) 1 NWLR (369) 71 @ 73; Governor, Kwara State v. Lawal (2007) 13 NWLR (1057) 347; The Admin.of the Estate Abacha v. Eke-Spiﬀ (2009) 7 NWLR (1139) 97 @ 126. An artificial person, for the purpose of juristic capacity to sue or be sued, is a corporation, company, body, institution or establishment; aggregate or sole, created by or pursuant to the provisions of statute and vested with the legal persona by a specific and particular name or designation. Fawehinmi v. NBA (No.2) (supra), N.I.I.A. v. Ayanfalu (2007) 2 NWLR (1018) 246. In law therefore, it is only such an artificial person/party that possesses the legal capacity and juristic personality to sue or be sued and where it is successfully shown that a party to an action is not a legal person, the action would be incompetent and liable to be struck out if he is the sole claimant or Defendant. Where he is only one of the claimants or Defendants, his name is liable to be struck out of the case as an incompetent party. Okechukwu v. Ndah (1967) NWLR, 368 @ 370; Nigerian Nurses Association v. Attoney General of Federation (1981) 11 – 12 SC, 1, Fawehinmi v. NBA (No. 2) (supra), Abu v. Ogli (1995) 8 NWLR (413) 352. Per GARBA, JCA. read in context

2. Traverse – The position of the law on how a proper traverse must be raised
Whether a proper traverse is required in order to raise an issue of fact in pleadings

With regards to pleadings, the rules are settled that a party who intends to deny, dispute or controvert a positive and specific fact, deposition/s or assertion/s in the pleadings of his opponent or the other party to a case, he must, in his own pleadings, do so specifically, frontally, categorically and expressly so as to, prima facie, join an issue of dispute that would give rise to the duty and requirement of proof of the fact/s so denied and disputed. Where vital and material fact/s in a party’s case are not so specifically, frontally and categorically denied and disputed, they are deemed admitted by the other party. Dosunmu v. Dada (2002) 13 NWLR (783), NNPC v. Sele (2004) 5 NWLR (866) 379, Jadcom Limited v. Oguns Electrs (2004) 3 NWLR (859) 153. In that regard, general, obtuse, indistinct, unspecific and evasive averments in respect of specific, crucial, positive and distinct facts are considered not enough and not eﬀective controversion or traverse to raise an issue of dispute that would warrant proof in a case. For instance, an averment by a party that he is either not in a position to admit or deny a specific, positive and categorical fact pleaded in his opponent’s pleadings would fall short of a proper and eﬀective traverse capable of constituting or giving rise to a legal dispute that would call for or require proof. See generally, Odiba v. Muemue (supra) Okeke v. Oruh (1999) 6 NWLR (606) 175, Elendu v. Ekwoaba (1998) 63 LRCN, 4975 @ 4988, (1998) 12 NWLR (578) 320, Ndili v. Akinsumade (2000) 8 NWLR (668) 293, Nnanna v. Onyenakuchi (2000) 15 NWLR (689) 92, Danyan v. Iyagin (2002) 7 NWLR (766) 346, Ukachukwu v. Uzodinma (2007) 9 NWLR (1038) 167, Bamgbegbin v. Oriare (supra). Osayande v. Etuk (2008) 1 NWLR (1068) 211. In the case of Air Via Limited v. Oriental Airlines Limited (2004) ALL FWLR (212) 1565, a legal “dispute” was defined by the Supreme Court as:-

“a conflict of claims or rights or demand on one side met by contrary allegations on the other side.”

As a noun, “dispute” is defined at page 505 of the 8th Edition of Black’s Law Dictionary as

“A conflict or controversy, espouse that has given rise to a particular law suit.”

Oxford Advanced Learner’s Dictionary of current English 6th Edition, at page 363 defines “dispute” to include –

“1. To question whether something is true and valid.

2. To argue or disagree strongly with somebody about something.”

See other definitions in line with the above, in Attorney General, Abia State v. Attorney General, Federation (2007) 6 NWLR (1029) 200, Bandex Engineering v. Eﬃcient Pet. Nigeria Limited (2001) 8 NWLR (715) 333, Williams v. Udofia (2017) 7 NWLR (1563) 354. In order for averments in the parties’ pleadings to give rise to a dispute which would require proof by evidence, facts deposed therein on a particular issue must be in conflict or controversy and strongly denying and disputing a common position or point. An averment by one of the parties saying that he is not in a position to admit or deny a positive and pungent assertion or deposition of fact, does not constitute an eﬀective denial, a conflict or controversy to give rise to a dispute between the parties that would in law, call for proof. The statement that a party is not in a position to admit a fact means that he does not know anything about the fact and does not deny it since he is not in possession of contrary fact. To say that he is not in a position to deny a fact, means that he does not know anything about the fact and concedes to it in the absence of contrary fact. In the case of Ugochukwu v. Unipetrol Nigeria Plc. (2002) 7 NWLR (765) 1, the apex Court; Mohammed, JSC referred to Lewis & Peat (NRI) Limited v. Akhimien where it was stated and held that:-

“We must observe, however, that in order to raise an issue of fact in these circumstances, there must be a proper traverse; and a traverse must be made either by a denial or non admission either expressly or by necessary implication. So that if a defendant, refuses to admit a particular allegation in the statement of claim, he must state so specifically; and he does not do this satisfactorily by pleading thus:-“Defendant is not in a position to admit or deny (the particular allegation in the statement of claim) and will at the trial put the plaintiﬀ to proof.” As was held in Harris v. Gamble (1875) 7 Ch, D. 877 a plea that the “defendant puts plaintiﬀ to proof amounts to insuﬃcient denial; equally a plea that the “defendant does not admit the correctness” (of a particular allegation in the statement of claim) is also an insuﬃcient denial – see Rutter v. Tregent (1979) 12 Ch. p. 758.”

See also Daniyan v. Iyagin (supra) Igbinovia v. Okomu Oil Palm (2002) 17 NWLR (796) 386, Eke v. Okwaranyia (2001) 12 NWLR (726) 181. In the present appeal, the Appellant in paragraph 1 of the Further Amended statement of Claim dated 10th February, 2009 and filed on the 28th July, 2009 had pleaded that: –

“That Plaintiﬀ is a Limited Liability Company incorporated under the laws of the Federal Republic of Nigeria and engaged in general trading with its head oﬃce at Wave Plaza, International Centre for Commerce, Trade Fair Complex, Badagry Expressway Ojo Lagos.”

On its part, the Respondent in the statement of defence and counter claim dated 21st January, 2008 as a general preliminary, has stated that: –

“SAVE AND EXCEPT as hereinafter expressly admitted the Defendant herein denies each and every allegation of facts contained in the Plaintiﬀ’s Statement of Claim as if each and every such allegation of facts were set out and traversed seriatim.” Then in answer to the deposition/averment of the Appellant in paragraph 1 of its pleadings above, the Respondent averred in paragraph 1 that: –

“The Defendant is not in a position to admit the averment in paragraph 1 of the Statement of Claim.”

As can easily be seen, the averment by the Appellant in paragraph 1 of its pleadings, is specific, positive, assertive unequivocal cogent and pungent that it is a limited liability company incorporated under the law of the Nigeria and engaged in general trading with its head oﬃce at Ware Plaza, International centre for commerce, Trade Fair complex, Badagry Expressway, Ojo, Lagos. A proper and eﬀective denial and traverse of the averment that would constitute an issue of dispute between the Appellant and the Respondent should be one which is specific, negative, categorical, frontal, in direct conflict with and a challenge to the fact that the Appellant is a company incorporated under the laws of Nigeria on incorporation or registration of companies like the Appellant. The averment by the Respondent that “the defendant is not in a position to admit the averment in paragraph 1 of the statement of claim” is not a denial of any category, but a clear admission that the Respondent does not know anything about the fact asserted cogently and positively by the Appellant of its status, as an incorporated limited liability company in Nigeria which it did not deny or dispute. Taking into account the whole of the other averments of the Respondent in the entirety of the statement of defence and counter claim, it is beyond viable argument that the Respondent did not dispute or even intended to dispute or challenge the incorporation or juristic personality of the Appellant for the purposes of the suit, as it had, from the beginning of the relationship between them, recognized, accepted, dealt with and referred to the Appellant as “the plaintiﬀ company.” The Respondent would not have, as a reputable financial institution not only in Nigeria, but beyond, entered into the agreement with the Appellant in respect of the transaction that led to the case, if it had any doubt as to whether the Appellant is/was an incorporated company with the requisite legal status to undertake the transaction of importation of goods into Nigeria by it or in its name. Be that as it may, since the Respondent did not in any manner howsoever, deny the fact in paragraph 1 of the Appellants Further Amended Statement of Claim, but is only “not in a position to admit it” the law is that in the absence of the denial, the Respondent is presumed to have admitted the fact deposed therein. The legal consequence is that no issue or legal dispute was eﬀectively joined by the parties on the fact that the Appellant is an incorporated limited liability company under the relevant laws in Nigeria and so possesses the required legal capacity and juristic personality to sue or be sued in its name. In the absence of a legal dispute between the parties on the said fact, the question or issue of proof would not and did not arise in the case, since proof presupposes the existence of a dispute. Akibu v. Oduntan (1992) 2 NWLR (222) 210 @ 226-7, C.C.G. v. Nanbati (2001) FWLR (4) 455, Abacha v. Fawehinmi (2000) FWLR (2004) 553, NNB v. Denclag (2005) 4 NWLR (916) 549. In the forgoing premises, the trial Court was wrong in law to have, only on the basis of averment of the Respondent in paragraph 1 of the Statement of Defence and Counter Claim, found that the juristic personality or legal status of the Appellant was eﬀectively and properly denied so as to require proof by the Appellant. Per GARBA, JCA. read in context

B. EVIDENCE
3. Evaluation of Evidence – The primary duty of the trial Court that relate to evaluation of evidence as imposed by law
Duty of trial judge to evaluate evidence and nature of the duty of an appellate court in reviewing such evaluation on appeal

The law is now elementary that the primary duty to and function of evaluation of evidence adduced in all trials before the Courts of law, belong to the trial Court before which witnesses; appear and testify and through whom, documentary evidence is tendered by the parties in proof and defence of their respective cases. That duty and function befit the trial Court because of its vintage and unique position of physically seeing and hearing the witnesses testify or give their evidence and particularly, observing, and experiencing their often, subtle and influencing nuances or demeanour on the evidence they give on particular points or issues. In that unique position, a trial Court is best suited for a first hand appraisal and assessment of the entirety of the facts of the case and evaluation of the evidence given, particularly as it relates to the credibility of the witnesses, for a proper ascription of the deserved probative value to the evidence, drawing necessary inferences and making crucial findings on the issues in dispute. See Balogun v. Agboola (1974) 1 ALL FWLR (Pt.2) 66, Atolagbe v. Shorun (1985) 1 NWLR (2002) 360, Naruwa & Sons Limited v. N.B.T.C. Limited (1989) 2 NWLR (106) 730, Laguro v. Toku (1986) 4 NWLR (33) 90, Woluchem v. Gudi (1987) SC, 219, 269, Ojokolobo v. Alamu (1998) 9 NWLR (565) 226, Sha v. Kwan (2000) 5 SC, 178, State v. Ajie (2000) 7 SC (pt.1) 24, Adebayo v. Adusei (2004) 4 NWLR (862) 44, Agbi v. Ogbeh (2006) 11 NWLR (990) 65, Meka v. Anyafulu (2006) ALL FWLR (309) 1405. The primary function of evaluation of evidence adduced at a trial, before a trial Court, does not suit and ill befits any other Court, but in particular, an appellate Court which, as its name shows, essentially a Court which has the primary function and duty of determination of complaints against decisions of lower/trial Courts by way of appeals. As a Court which does not physically see and hear witnesses give accounts of facts in evidence, an appellate Court cannot properly embark on the assessment and appraisal of the credibility of such witnesses which has a bearing influence on the probative value to be ascribed to their and other pieces of evidence placed before a trial Court. See Kazeem v. Mosaku (2007) 2 SC, 22, (2007) 17 NWLR (1064) 523, Agbaje v. Agboola (supra), Nwankpu v. Ewulu (supra), AG Leventis Nigeria Plc. v. Akpu (2007) 17 NWLR (1063) 416, Audu v. Gula (2004) 4 NWLR (864) 463. The law is also known that where a trial either did not properly evaluate or failed to evaluate documentary evidence which was placed before it by the parties and there is an appeal in which a valid ground complaining of the improper or non evaluation of the evidence by the lower trial Court was brought to the appellate Court, the appellate Court would be in, as good a position, as the trial Court to evaluate the said evidence, draw proper inferences and make necessary findings in the case. In such situation, the two (2) Courts; both trial and appellate, have equal opportunity to physically see, consider, examine, scrutinize, appraise and assess the probative value or worth which such documentary evidence deserves, on the peculiar facts and in the circumstances of the case. The issue of the credibility of witnesses, over which the trial Court enjoys its unique and vintage position over the appellate Court, would not arise. See Gonzee Nigeria Limited v. N.E.R. & D.C. (2005) 6 SC (Pt.1) 25 @ 35, (05) ALL FWLR (274) 235 @ 248, FSB International Bank Limited v. Imano Nigeria Limited (2000) 7 SCNJ, 65, (2000) 11 NWLR (679) @ 637, Ogundele v. Agiri (2009) 18 NWLR (1173) 219, Amayo v. Erinmwingbovo (2005) 5 SC (Pt.6) 1 @ 11, Okoya v. Santili (1994) 4 NWLR (338) 256, Iwuoha v. NIPOST (2003) 110 LRCN, 1622 @ 1645. I have perused the evidence placed before the trial Court by the parties; both oral and the fifty-one (51) copies of documents admitted in evidence as Exhibits and observed that the documents; are intractably tied to the rigorous cross examination of the sole witnesses called by each of the parties during which varied answers were elicited by counsel and crucial physical observations on the mances and demeanour of the witnesses were made by the trial Court. In the case of Layinka v. Makinde (2002) 10 NWLR (775) 358 @ 374-5 Uwaifo, JSC had said that:

“An appellate Court has a limited function in the determination of a dispute between the parties. It does not try a case and therefore does not see and hear witnesses testify. An appellate Court upon a complaint made to it is concerned with seeing whether a trial Court has or has not made some substantive or procedural errors or has or has not failed to make any or proper findings which the evidence available deserves. It is not the function of an Appellate Court to re-try a case on the notes of evidence and then set aside the decision of a trial …”

See also Kalu v. Odili (1992) 5 NWLR (240) 130, Onifade v. Olayiwola (1990) 7 NWLR (161) 130. In the present appeal, the trial Court did not fail to evaluate the evidence placed before it by the parties, but refused to do so after tortuously setting it out verbatim in more than one hundred (100) pages of the decision to strike out the case. In my view, Section 15 of the Court of Appeal Act is not an open licence to turn this Court to into a trial Court, such that a refusal by a trial Court to perform and discharge its basic and primary duty and function of first hand assessment, appraisal and evaluation of the evidence given by witnesses before it, should result into a transfer of such duty and function to this Court whose own primary function is to review the discharge of the trial Courts’ duty of trial. The section is aimed and meant to provide the Court with the full powers of a trial Court in order to enable to properly and fully review the discharge by a trial Court of its primary judicial duty of trial that essentially involves taking record of all evidence placed before it by the parties, evaluating the evidence, making findings thereon and reaching conclusions on the issues of dispute based on the evidence. It is only where a trial Court discharges the duty and performs the primary function of conducting a proper trial and a party complains of improper or failure to discharge the duty in respect of some aspect of the trial, that the provisions of Section 15 should be invoked to correct the errors committed by the trial Court in the ultimate decision/conclusion it made/reached at the end of the trial. For the purpose of evaluation of evidence, the provisions may be resorted to where a trial Court improperly evaluated any or all the evidence or failed to evaluate some relevant and material evidence adduced by any of the parties in its decision. The appellate Court, assuming the powers vested in Section 5 of the Court of Appeal Act would then either review; by re-evaluation or embark on evaluation of the evidence not evaluated by the trial Court as the case may be, and correct the errors committed in the improper evaluation or failure to evaluate the portion of the relevant and material evidence placed before. There should, or must be, evaluation of the evidence by a trial Court and then failure to evaluate some relevant or material part of it for this Court to be at liberty to invoke the provisions of Section 15 and not when there was no evaluation of or total failure to evaluate all or any of the entire evidence placed before a trial Court. All the judicial authorities on the invocation by the Court of the provisions of Section 15 (16 of the 1976 Act) dealt with failure by a trial Court to evaluate some evidence considered to be relevant and material to a party’s case and not total failure to evaluate all or any of the evidence adduced by the parties before it, in its decision. Trial Courts, being Courts of first instance and first step in the judicial hierarchy in the country, must endeavour to fully discharge the primary duty and perform the basic judicial function of the determination of disputes submitted to them by parties, on the merit of all the issues placed before them for the purpose of the exercise of the right of appeal vested by the Constitution on the parties against decisions of those and other Courts. That would enable the appellate Courts have the benefit of and opportunity to consider the pronouncements by trial Courts on the merit of all the issues placed before them by the parties, in appeals against their decisions. Lots of time and resources would be served by that procedure in the final determination or disposal of cases by the Courts. All the above said, I have earlier stated that the evaluation of the evidence before the trial Court would necessarily involve the impressions of the sole witnesses called by the parties at the trial, by the trial Court and so their credibility is bound to play key role in the ultimate outcome of the matter. In the circumstances, the Court is not inclined to accept the invitation to embark on the evaluation of the evidence, from the printed notes of the Record of Appeal and deciding the case for the parties. The invitation is rejected and refused. Per GARBA, JCA. read in context

LEAD JUDGMENT DELIVERED BY GARBA, JCA

This appeal is against the decision by the Federal High Court (Lower Court) sitting at Lagos delivered on the 2nd October, 2012 in the Appellant’s suit No: FHC/L/CS/237/2006, striking out the Suit on the ground that the Appellant failed to prove that it is a juristic person capable in law, to sue and be sued, before Courts of laws, in its name. The decision by the Lower Court was tersely put thus: –

“The Plaintiff has failed to prove that it is indeed a juristic personality as contended in paragraph 1 of the statement of claim. In the circumstances, the Courts have been urged to strike out the case. See Ejikeme vs. Amachi (1998) 3 NWLR (Pt. 542) 456.

Accordingly, an order is hereby made striking out this case. For the same reason, the Counter Claim of the Defendant cannot stand. The Counter Claim is also hereby struck out. N10,000 cost is awarded in favour of the Defendant against the Plaintiff.”

Aggrieved by the decision, the Appellant, by the Notice of Appeal dated 3rd but filed on the 12th December, 2012, brought the appeal against it on four (4) grounds from which two (2) issues were raised in the Appellant Brief filed on 9th September, 2015. They are: –

“(i) Whether considering the state of the pleadings of the parties, the legal personality of the Appellant has been sufficiently put in issue to place a burden on the Appellant to adduce evidence to establish its juristic personality. (Grounds 1, 2 and 3).

(ii) Whether the lower Court was obligated to evaluate the totality of the evidence adduced before it at the trial by the parties for the benefit of this Honourable Court and having failed so to do whether this Honourable Court is not entitled in law to review the evidence led in this case and make findings as the lower Court ought to have done. (Ground 4)”

The Respondent’s brief was filed on 30th April, 2015 and deemed on 0th April, 2018, the date of the oral hearing of the appeal, wherein three (3) issues are set out for determination in the appeal as follows:-

“2.1 Whether the Court below is right to have held that the Appellant failed to prove that it is a juristic person having regard to the general traverse in paragraph 1 of the Defendant’s Statement of Defence. 2.2 In view of the failure of the Appellant to satisfy the Court below of its legal personality, whether Court below is obligated to evaluate evidence of the parties and make proper finding.

2.3 If the above question is answered in the affirmative, whether this is a proper case in which the Court of Appeal can evaluate evidence and make appropriate finding.”

In reaction to the Respondent Brief, an Appellant’s Reply brief (ARB) was filed on the 26th May, 2015, also deemed at the hearing of the appeal. There is no difference in the substance of the issues raised by the learned counsel for the parties and I intend to use the formulation in the Appellant’s brief.

Issue 1: Appellant’s Arguments:

Citing Abubakar v. Waziri (2008) 4 NWLR (1108) 507, Wema Bank v. L.I.T. Nigeria Limited (2011) 6 NWLR (1244) and Bamgbegbin v. Oriare (2009) 12 NWLR (1158) 377 on the law in respect of the principle of pleadings on proper and effective denial and traverse in pleadings, learned counsel submitted that no issue was joined by the parties in their pleadings on the juristic personality of the Appellant for the need for proof by it to have arisen. Paragraph 1 of the Appellant Statement of Claim and. Paragraph 1 of the Respondent’s Statement of Defence and Counter Claim were set out and it is argued that there was no specific and categorical denial and traverse of the Appellant’s averment that it is a limited liability company incorporated under the laws of Nigeria in the Respondent’s pleadings in either paragraph 1 or any other paragraph for issue to be joined that would require and place the burden of proof on the Appellant. It is the case of ounsel that a general denial or traverse without more, such as contained in the Respondent’s pleadings, does not amount to an effective denial, but is deemed an admission, relying on CBN v. Dinneh (2010) 17 NWLR (1221) 130; Kotun v. Olasewere (2010) 1 NWLR (1175) 416; Idris v. A.N.P.P. (2008) 8 NWLR (1088) 39; Atolagbe v. Shorun (1985) 1 NWLR (2) 360 and Akintola v. Solano (1986) NWLR (24) 598. He maintains that the general denial by the Respondent is neither positive, categorical, specific or concise and effective denial as to the legal personality of the Appellant to join issue that requires proof by the Appellant.

According to counsel, the effect of the Respondent’s averment that it is not a position to admit that the Appellant is an incorporated limited liability company in Nigeria, is that it has nothing to offer on the fact and is deemed to have accepted it as correct.

Cases on the law that the pleadings of parties are to be considered holistically in the determination of whether there was effective denial or admission by the parties, were referred to and paragraphs 33 and 24 of the Respondent’s pleadings were set out for the argument that the Respondent has in fact, recognized the Appellant as a legal entity duly incorporated in Nigeria and was not in doubt of its juristic personality. The High Court was therefore said to be in grave error when it struck out the Appellant’s case on the ground it did when the issue was not joined by the parties.

Respondent’s Arguments: –

It is argued that a general traverse can amount to a proper and specific traverse if read in line with the specific averments in Defendant’s pleading. After setting out the pleadings in paragraph 1 each of the parties’ pleadings, counsel contends that the Respondent’s paragraph 1 is akin to specific denial of the Appellant’s paragraph 1 since it does not say or mean that the Respondent is not in a position to admit or deny it, citing Bua v. Dauda (2003) 13 NWLR (838) 657 @ 679. In addition, counsel said that the Appellant did not respond to the Respondent’s paragraph 1 in its Reply to the Statement of Defence and Counter Claim as it was under a duty to do since its juristic personality was put in issue and that the Appellant bore the burden of proving its legal personality, on the authority of Nduka v. Ezenwaku (2001) 6 NWLR (709) 494 @ 517 and A.C.B. Plc. v. Emostrade Limited (2002) 8 NWLR (770) 501 @ 519-20.

It is said that the Appellant failed to prove its legal personality and the Lower Court was right to have struck out the case on that ground. The Court is urged “to uphold the judgment of ‘the Court below and dismissed the appeal.”

(1) A legal person under the name by which it sues or is sued

(2) A right to sue or be sued by the name.

In law therefore, it is only such an artificial person/party that possesses the legal capacity and juristic personality to sue or be sued and where it is successfully shown that a party to an action is not a legal person, the action would be incompetent and liable to be struck out if he is the sole claimant or Defendant. Where he is only one of the claimants or Defendants, his name is liable to be struck out of the case as an incompetent party.

Okechukwu v. Ndah (1967) NWLR, 368 @ 370; Nigerian Nurses Association v. Attoney General of Federation (1981) 11 – 12 SC, 1, Fawehinmi v. NBA (No. 2) (supra), Abu v. Ogli (1995) 8 NWLR (413) 352.

In that regard, general, obtuse, indistinct, unspecific and evasive averments in respect of specific, crucial, positive and distinct facts are considered not enough and not effective controversion or traverse to raise an issue of dispute that would warrant proof in a case. For instance, an averment by a party that he is either not in a position to admit or deny a specific, positive and categorical fact pleaded in his opponent’s pleadings would fall short of a proper and effective traverse capable of constituting or giving rise to a legal dispute that would call for or require proof. See generally, Odiba v. Muemue (supra) Okeke v. Oruh (1999) 6 NWLR (606) 175, Elendu v. Ekwoaba (1998) 63 LRCN, 4975 @ 4988, (1998) 12 NWLR (578) 320, Ndili v. Akinsumade (2000) 8 NWLR (668) 293, Nnanna v. Onyenakuchi (2000) 15 NWLR (689) 92, Danyan v. Iyagin (2002) 7 NWLR (766) 346, Ukachukwu v. Uzodinma (2007) 9 NWLR (1038) 167, Bamgbegbin v. Oriare (supra). Osayande v. Etuk (2008) 1 NWLR (1068) 211.

In the case of Air Via Limited v. Oriental Airlines Limited (2004) ALL FW R (212) 1565, a legal “dispute” was defined by the Supreme Court as:-

“a conflict of claims or rights or demand on one side met by contrary allegations on the other side.”

As a noun, “dispute” is defined at page 505 of the 8th Edition of Black’s Law Dictionary as “A conflict or controversy, espouse that has given rise to a particular law suit.”

Oxford Advanced Learner’s Dictionary of current English 6th Edition, at page 363 defines “dispute” to include – “1. To question whether something is true and valid. 2. To argue or disagree strongly with somebody about something.”

See other definitions in line with the above, in Attorney General, Abia State v. Attorney General, Federation (2007) 6 NWLR (1029) 200, Bandex Engineering v. Efficient Pet. Nigeria Limited (2001) 8 NWLR (715) 333, Williams v. Udofia (2017) 7 NWLR (1563) 354.

In order for averments in the parties’ pleadings to give rise to a dispute which would require proof by evidence, facts deposed therein on a particular issue must be in conflict or controversy and strongly denying and disputing a common position or point. An averment by one of the parties saying that he is not in a position to admit or deny a positive and pungent assertion or deposition of fact, does not constitute an effective denial, a conflict or controversy to give rise to a dispute between the parties that would in law, call for proof. The statement that a party is not in a position to admit a fact means that he does not know anything about the fact and does not deny it since he is not in possession of contrary fact.

To say that he is not in a position to deny a fact, means that he does not know anything about the fact and concedes to it in the absence of contrary fact.

In the case of Ugochukwu v. Unipetrol Nigeria Plc. (2002) 7 NWLR (765) 1, the apex Court; Mohammed, JSC referred to Lewis & Peat (NRI) Limited v. Akhimien where it was stated and held that:-

“Defendant is not in a position to admit or deny (the particular allegation in the statement of claim) and will at the trial put the plaintiff to proof.”

As was held in Harris v. Gamble (1875) 7 Ch, D. 877 a plea that the “defendant puts plaintiff to proof amounts to insufficient denial; equally a plea that the “defendant does not admit the correctness” (of a particular allegation in the statement of claim) is also an insufficient denial – see Rutter v. Tregent (1979) 12 Ch. p. 758.”

See also Daniyan v. Iyagin (supra) Igbinovia v. Okomu Oil Palm (2002) 17 NWLR (796) 386, Eke v. Okwaranyia (2001) 12 NWLR (726) 181.

In the present appeal, the Appellant in paragraph 1 of the Further Amended statement of Claim dated 10th February, 2009 and filed on the 28th July, 2009 had pleaded that: –

“That Plaintiff is a Limited Liability Company incorporated under the laws of the Federal Republic of Nigeria and engaged in general trading with its head office at Wave laza, International Centre for Commerce, Trade Fair Complex, Badagry Expressway Ojo Lagos.”

On its part, the Respondent in the statement of defence and counter claim dated 21st January, 2008 as a general preliminary, has stated that: –

“SAVE AND EXCEPT as hereinafter expressly admitted the Defendant herein denies each and every allegation of facts contained in the Plaintiff’s Statement of Claim as if each and every such allegation of facts were set out and traversed seriatim.”

Then in answer to the deposition/averment of the Appellant in paragraph 1 of its pleadings above, the Respondent averred in paragraph 1 that: –

“The Defendant is not in a position to admit the averment in paragraph 1 of the Statement of Claim.”

Be that as it may, since the Respondent did not in any manner howsoever, deny the fact in paragraph 1 of the Appellants Further Amended Statement of Claim, but is only “not in a position to admit it” the law is that in the absence of the denial, the Respondent is presumed to have admitted the fact deposed therein. The legal consequence is that no issue or legal dispute was effectively joined by the parties on the fact that the Appellant is an incorporated limited liability company under the relevant laws in Nigeria and so possesses the required legal capacity and juristic personality to sue or be sued in its name. In the absence of a legal dispute between the parties on the said fact, the question or issue of proof would not and did not arise in the case, since proof presupposes the existence of a dispute. Akibu v. Oduntan (1992) 2 NWLR (222) 210 @ 226-7, C.C.G. v. Nanbati (2001) FWLR (4) 455, Abacha v. Fawehinmi (2000) FWLR (2004) 553, NNB v. Denclag (2005) 4 NWLR (916) 549.

In the forgoing premises, the trial Court was wrong in law to have, only on the basis of averment of the Respondent in paragraph 1 of the Statement of Defence and Counter Claim, found that the juristic personality or legal status of the Appellant was effectively and properly denied so as to require proof by the Appellant.

In the result, I find merit in the Appellant’s issue 1 and the arguments canvassed thereon and resolve it in favour of the Appellant.

Issue 2: Appellant’s Submission:-

The submissions by the learned counsel are to the effect, relying primarily on the provisions of Section 15 of the Court of Appeal Act, that since the trial Court has failed to evaluate the evidence adduce before it by the parties, which is said to be principally documentary, the Court should do so and in the event, enter judgment for the Appellant as claimed and dismiss the Respondent’s counter claim for want of proof. A number of judicial authorities including Umoru v. Ifumu LGC (2010) 7 NWLR (1122) 1 and Wachukwu v. Owunwanne (2011) 14 NWLR (1206) 1 on the primary duty of a trial Court which saw and heard witnesses, to evaluate evidence, Akpan v. Bob (2010) 17 NWLR (1223) 421 and Order 19, Rule 11 of the Court of Appeal, 2011 on the powers of the Court to treat a matter before as a Court of first instance, were referred to in urging the Court to proceed with the evaluation of the evidence before the trial ourt, said to be what the justice of the case demands

Respondent’s Submission:-

It is submitted for the Respondent that this is not a proper case for the Court to embark on the evaluation of the evidence adduced during the trial which the trial failed to do because the evaluation would involve the credibility of the two ( ) witnesses who testified; one each for the parties. Oyebamiji v. Fabuyi (2003) (12 NWLR (834), 271 @ 295 & 6, Ebba v. Ogodo (1984) 1 SCNLR, 372 and Fagbenro v. Arobadi (2006) 7 NWLR (978) 172 @ 194 on the duty and the unique position of a trial Court to evaluate evidence of witnesses who testified before it and when an appellate Court can properly undertake evaluation of evidence, among others cases, were cited in support of the position.

In the Appellant’s Reply brief, the case of Ezeonwu v. C.A. Onyechi (1996) 2 SCNJ (no page provided) which however, is also Reported in (1996) 3 NWLR (438) 499, was cited on the law that an Appellate Court is in, as good a position, as a trial Court to evaluate evidence where it is mainly documentary.

In that unique position, a trial Court is best suited for a first hand appraisal and assessment of the entirety of the facts of the case and evaluation of the evidence given, particularly as it relates to the credibility of the witnesses, for a proper ascription of the deserved probative value to the evidence, drawing necessary inferences and making crucial findings on the issues in dispute. See Balogun v. Agboola (1974) 1 ALL FWLR (Pt.2) 66, Atolagbe v. Shorun (1985) 1 NWLR (2002) 360, Naruwa & Sons Limited v. N.B.T.C. Limited (1989) 2 NWLR (106) 730, Laguro v. Toku (1986) 4 NWLR (33) 90, Woluchem v. Gudi (1987) SC, 219, 269, Ojokolobo v. Alamu (1998) 9 NWLR (565) 226, Sha v. Kwan (2000) 5 SC, 178, State v. Ajie (2000) 7 SC (pt.1) 24, Adebayo v. Adusei (2004) 4 NWLR (862) 44, Agbi v. Ogeh (2006) 11 NWLR (99 ) 65, Meka v. Anyafulu (2006) ALL FWLR (309) 1405.

The primary function of evaluation of evidence adduced at a trial, before a trial Court, does not suit and ill befits any other Court, but in particular, an appellate Court which, as its name shows, essentially a Court which has the primary function and duty of determination of complaints against decisions of lower/trial Courts by way of appeals. As a Court which does not physically see and hear witnesses give accounts of facts in evidence, an appellate Court cannot properly embark on the assessment and appraisal of the credibility of such witnesses which has a bearing influence on the probative value to be ascribed to their and other pieces of evidence placed before a trial Court. See Kazeem v. Mosaku (2007) 2 SC, 22, (2007) 17 NWLR (1064) 523, Agbaje v. Agboola (supra), Nwankpu v. Ewulu (supra), AG Leventis Nigeria Plc. v. Akpu (2007) 17 NWLR (1063) 416, Audu v. Guta (2004) 4 NWLR (864) 463.

The law is also known that where a trial either did not properly evaluate or failed to evaluate documentary evidence which was placed before it by the parties and there is an appeal in which a valid ground complaining of the improper or non evaluation of the evidence by the lower trial Court was brought to the appellate Court, the appellate Court would be in, as good a position, as the trial Court to evaluate the said evidence, draw proper inferences and make necessary findings in the case. In such situation, the two (2) Courts; both trial and appellate, have equal opportunity to physically see, consider, examine, scrutinize, appraise and assess the probative value or worth which such documentary evidence deserves, on the peculiar facts and in the circumstances of the case. The issue of the credibility of witnesses, over which the trial Court enjoys its unique and vintage position over the appellate Court, would not arise. See Gonzee Nigeria Limited v. N.E.R. & D.C. (2005) 6 SC (Pt.1) 25 @ 35, (05) ALL FWLR (274) 235 @ 248, FSB International Bank Limited v. Imano Nigeria Limited (2000) 7 SCNJ, 65, (2000) 11 NWLR (679) @ 637, Ogundele v. Agiri (2009) 18 NWLR (1173) 219, Amayo v. Erinmwingbovo (2005) 5 SC (Pt.6) 1 @ 11, Okoya v. Santili (1994) 4 NWLR (338) 256, Iwuoha v. NIPOST (2003) 110 LRCN, 1622 @ 1645.

I have perused the evidence placed before the trial Court by the parties; both oral and the fifty-one (51) copies of documents admitted in evidence as Exhibits and observed that the documents; are intractably tied to the rigorous cross examination of the sole witnesses called by each of the parties during which varied answers were elicited by counsel and crucial physical observations on the mances and demeanour of the witnesses were made by the trial Court. In the case of Layinka v. Makinde (2002) 10 NWLR (775) 358 @ 374-5 Uwaifo, JSC had said that:

“An appellate Court has a limited function in the determination of a dispute between the parties. It does not try a case and therefore does not see and hear witnesses testify. An appellate ourt upon a complaint made to it is concerned with seeing whether a trial Court has or has not made some substantive or procedural errors or has or has not failed to make any or proper findings which the evidence available deserves.

It is not the function of an Appellate Court to re-try a case on the notes of evidence and then set aside the decision of a trial …”

See also Kalu v. Odili (1992) 5 NWLR (240) 130, Onifade v. Olayiwola (1990) 7 NWLR (161) 130.

In the present appeal, the trial Court did not fail to evaluate the evidence placed before it by the parties, but refused to do so after tortuously setting it out verbatim in more than one hundred (100) pages of the decision to strike out the case. In my view, Section 15 of the Court of Appeal Act is not an open licence to turn this Court to into a trial Court, such that a refusal by a trial Court to perform and discharge its basic and primary duty and function of first hand assessment, appraisal and evaluation of the evidence given by witnesses before it, should result into a transfer of such duty and function to this Court whose own primary function is to review the discharge of the trial Courts’ duty of trial. The section is aimed and meant to provide the Court with the full powers of a trial Court in order to enable to properly and fully review the discharge by a trial Court of its primary judicial duty of trial that essentially involves taking record of all evidence placed before it by the parties, evaluating the evidence, making findings thereon and reaching conclusions on the issues of dispute based on the evidence. It is only where a trial Court discharges the duty and performs the primary function of conducting a proper trial and a party complains of improper or failure to discharge the duty in respect of some aspect of the trial, that the provisions of Section 15 should be invoked to correct the errors committed by the trial Court in the ultimate decision/conclusion it made/reached at the end of the trial. For the purpose of evaluation of evidence, the provisions may be resorted to where a trial Court improperly evaluated any or all the evidence or failed to evaluate some relevant and material evidence adduced by any of the parties in its decision. The appellate Court, assuming the powers vested in Section 15 of the Court of Appeal Act would then either review; by re-evaluation or embark on evaluation of the evidence not evaluated by the trial Court as the case may be, and correct the errors committed in the improper evaluation or failure to evaluate the portion of the relevant and material evidence placed before. There should, or must be, evaluation of the evidence by a trial Court and then failure to evaluate some relevant or material part of it for this Court to be at liberty to invoke the provisions of Section 15 and not when there was no evaluation of or total failure to evaluate all or any of the entire evidence placed before a trial Court. All the judicial authorities on the invocation by the Court of the provisions of Section 15 (16 of the 1976 Act) dealt with failure by a trial Court to evaluate some evidence considered to be relevant and material to a party’s case and not total failure to evaluate all or any of the evidence adduced by the parties before it, in its decision.

Trial Courts, being Courts of first instance and first step in the judicial hierarchy in the country, must endeavour to fully discharge the primary duty and perform the basic judicial function of the determination of disputes submitted to them by parties, on the merit of all the issues placed before them for the purpose of the exercise of the right of appeal vested by the Constitution on the parties against decisions of those and other Courts.

That would enable the appellate Courts have the benefit of and opportunity to consider the pronouncements by trial Courts on the merit of all the issues placed before them by the parties, in appeals against their decisions. Lots of time and resources would be served by that procedure in the final determination or disposal of cases by the Courts.

All the above said, I have earlier stated that the evaluation of the evidence before the trial Court would necessarily involve the impressions of the sole witnesses called by the parties at the trial, by the trial Court and so their credibility is bound to play key role in the ultimate outcome of the matter. In the circumstances, the Court is not inclined to accept the invitation to embark on the evaluation of the evidence, from the printed notes of the Record of Appeal and deciding the case for the parties. The invitation is rejected and refused.

In the final result, I find merit in the appeal on Issue 1, it succeeds and is accordingly, allowed.

Consequently, the decision by the trial Court striking out the Appellant’s case on the failure to prove its juristic personality or legal capacity to institute the action in its name, is hereby set aside.

The suit/case is hereby restored on the trial Court’s cause list and it is ordered to be reassigned to another Judge thereof by the Chef Judge or the Administrative Judge of the Lagos Division, for expeditious determination on the merit.

There shall be costs, assessed at Two Hundred Thousand Naira (N200,000.00) in favour of the Appellant to be paid by the Respondent for the prosecuting of the appeal.

IKYEGH, JCA

I had the privilege of reading in print the thorough judgment prepared by learned brother, Mohammed Lawal Garba, J.C.A. (Hon. P.J.), with which I agree and adopt as my judgment.

TUKUR, JCA

I had a preview of the lead judgment just delivered by my learned brother MOHAMMED LAWAL GARBA JCA and I adopt the judgment as mine with nothing useful to add.

Appearances:

K. O. Udemezue For Appellant(s)

Johnson Odionu with him, Ikenna Ifedilo and Jone Anyika For Respondent(s)