SUBURBAN BROADBAND LTD NIGERIA
INTELSAT GLOBAL SALES & MARKETING LTD.
(DELIVERED BY JOSEPH E. EKANEM. JCA)
The respondent by a petition dated and filed on 13/12/2010 prayed the Federal High Court, Abuja Judicial Division ("the trial court" for short) in Suit No FHC/ABJ/PET/12/2010 to wind up the appellant for its inability to liquidate its accrued debts to the respondent. The Petition was
supported by an affidavit and a verifying affidavit.
The appellant in response, filed a notice of intention to appear under protest and a motion on notice praying for, inter alia, an order dismissing or striking out the petition for lack of jurisdiction and/or for being incompetent based on the following grounds.
"(i) There is no competent Affidavit in Support of and /or Affidavit verifying the petition.
(ii) This Honourable Court has no jurisdiction to entertain this petition.
(iii) There was no valid demand for the payment of the alleged debt before the commencement of this action;
(iv) The Petitioner is not a corporate body registered in Nigeria or elsewhere.
Accordingly, it has no right to sue or be sued in this court. In other words, the petitioner is incompetent or in the alternative.
(v) The Petition was not duly authorised by the Petitioner's Board of Directors or Shareholders;
(vi) The Petition is by the reasons foregoing or otherwise incompetent and this Honourable Court deprived of the jurisdiction to entertain same."
The motion was supported by a 16 - paragraph affidavit deposed to by one Uzoamaka Obudike, Company Secretary/Head of Legal Services Department of the appellant and a written address. The respondent in turn filed a counter-affidavit of 18 paragraphs deposed to by Abdulhameed Abdulkadir, a legal practitioner in the law firm representing the respondent with Exhibit A attached and a written address.
After hearing the motion, the trial court dismissed the preliminary objection but reserved ground (v), namely; that the petition was not duly authorised by the Petitioner's Board of Directors or Shareholders, for determination at the hearing of the Petition. It is against that ruling that the appellant has appealed to this court on a notice of appeal containing 5 grounds of appeal.
Pursuant to the rules of this court, the appellant filed;
(i) Appellant's brief of argument on 2/5/13
(ii) Amended appellant's reply brief filed on 17/4/15 and
(iii) A notice of preliminary objection against the respondent's notice. The notice of objection was filed on 13/3/14.
The respondent filed the following processes;
(i) Respondent's brief of argument filed on 5/6/15, and;
(ii) A respondent's notice to affirm the decision of the trial court filed on 4/4/14.
On 1/3/2016 when the appeal came for hearing, M. I. Abubakar, Esq, leading Mrs Seumbur Iyange adopted his brefs of argument and urged the court to allow the appeal and set aside the ruling of the trial court. Dayo A. Johnson, Esq; adopted his brief of argument and urged the court to dismiss the appeal
It must be mentioned that appellant's counsel referred to his preliminary objection to the respondent's notice and urged the court to strike out the same for being incompetent. Respondents counsel contended that the respondent's notice is regular and urged the court to vary the ruling of the trial court. I shall first deal with the substantive appeal before considering the respondent's notice, if necessary.
In the appellant's brief of argument settled by M, I. Abubakar, Esq, grounds 4 and 5 of the grounds of appeal are abandoned. The same are hereby struck out. Out of the remaining three grounds of appeal the following issues are formulated for the determination of the appeal.
"1. Whether in view of the affidavit evidence before the lower court including Exhibit D (i.e. the Settlement Agreement attached to the Affidavit in support of the Petition) the lower court was right in holding that it has the jurisdictional competence to adjudicate over the Respondent's petition as presently constituted (arising from Ground 1 of the Grounds of Appeal).
2. Whether Exhibit A attached to the Respondent's Counter Affidavit in opposition to the Appellant's preliminary objection being photocopy of a certificate issued by the Registrar of Companies for England and Wales is admissible in proof of the juristic personality of the Respondent and its legal capacity to institute or maintain the petition (Arising from Ground 2 of the Grounds of appeal; and
3. In the face of the affidavit evidence before the lower court, whether it was not wrong for the lower court to have deferred the determination of ground (V) of the Appellant's Preliminary objection (to the effect that the Petition was not duly authorised by the Respondent's Board of Directors or Shareholders) to the hearing of the petition (Arising from Grounds 3 of the Grounds of 1 Appeal)."
In the respondent's brief of argument settled by Abdullahi Abubakar, Esq, the three issues of appellant are adopted. I shall therefore determine the appeal on the three issues.
Whether in view of the affidavit evidence before the lower court including Exhibit D (i.e. the Settlement Agreement attached to the affidavit in support of the petition) the lower court was right in holding that it has jurisdictional competence to adjudicate over the respondent's petition as presently constituted.
Appellant's counsel referred to MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587 for the vital ingredients of competence and jurisdiction of court. He also referred to Exhibit D (second settlement agreement) attached to the affidavit in support of the petition and submitted that it is the current and prevailing provision that regulates the issue of jurisdiction in any dispute arising from the transaction between the parties. He submitted that by virtue thereof, English courts have exclusive jurisdiction. It was his contention that the trial court did not take cognizance of paragraphs 13 and 14 of the affidavit of the appellant when it held that the petition was not instituted to enforce the agreement (Exhibit D) but to wind up the appellant which by virtue of section 407 (1) of the Companies and Allied Matters Act (CAMA) was within its jurisdiction. He stated that by those depositions the appellant had effectively joined issues on the appellant's alleged indebtedness. This, he said, required the trial court, in order for it to completely assume jurisdiction, to determine appellant's indebtedness under the agreement which by its clause 9 is exclusively reserved for English Courts.
For the respondent, the court was urged to affirm the decision of the that court that it has jurisdiction. It was submitted that the appellant is yet to dispute the debt which grounds the petition as it is yet to file its affidavit in opposition to the petition as contemplated by Rule 25 of the Winding - Up Rules. It was further submitted that the jurisdiction of the trial court to hear the petition for winding -up could not be trounced by the fact that in that exercise the court may be called upon to determine the nature of Exhibit D. It was added that the relevant consideration should be that it is the trial court that has exclusive jurisdiction to hear winding-up petitions. It was pointed out that the dispute of the appellant was as to the amount of the debt owed which was not sufficient for the court to hold that there is a valid dispute of indebtedness. The case of UNIFAM INDUSTRIES LTD V. OCEANIC BANK INTERNATIONAL (NIG) LTD (2005) 3 NWLR (911) 83 was cited and relied on.
In the reply brief it was submitted that where a party served with an originating process intends to challenge the competence of the suit, it should file a preliminary objection without taking fresh steps. It was contended that the appellant was therefore right to have filed the preliminary objection without filing an affidavit in opposition to the preliminary objection.
A court is competent when-
1. It is properly constituted as regards numbers and qualifications of the bench and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its, jurisdiction, and there is no feature in the case which prevents the court from exercising jurisdiction; and
3. The case comes before the court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. See MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587 and SHELL PETROLEUM DEVELOPMENT CORPORATION NIGERIA LIMITED V. AGBARA (2016) 2 NWLR(1496) 353, 391 -392.
The focus of the appellant's issue one (1) is on number two (2) supra, viz; jurisdiction. Now jurisdiction has been held to be authority by which courts and judicial officers take cognizance of and decide cases it is also the legal right by which judges exercise their authority and it exists when the court has cognizance of the class of cases involved, proper parties are present and the point to be decided is within the powers of the court. See SHELL PETROLEUM DEVELOPMENT CORPORATION NIGERIA LIMITED V. AGBARA supra.
The jurisdiction of a court is determined by reference to the writ of Summons and Statement of Claim, In a case commenced by petition, as in this instance, the court is to consider the petition and the affidavit in support to see if the claim of the petitioner comes within the jurisdiction conferred on the court by the Constitution and the relevant legislation. Where the claim falls within that jurisdiction, the court must assume jurisdiction. Where it does not, the court must decline jurisdiction. See ONWUDIWE V. FEDERAL REPUBLIC OF NIGERIA (2006) 10 NWLR (988) 382, 428, IKENE V. EDJORODE (2001) 92 LRCN 3288, 3316, AHMED V. AHMED (2013) 15 NWLR (1377) 274, 331 -332 and ANPP V. BSIEC (2006) 11 NWLR (992) 585, 619.
A perusal of the petition and the affidavit in support leaves me in no doubt that the claim of the respondent at the trial court was for the winding up of the petitioner, a company incorporated under the Companies and Allied Matters Act 1990. By virtue of Section 251 (1) (e) of the Constitution of Nigeria 1999 (as amended) and S. 407 (1) of CAMA, it is the trial court that has exclusive jurisdiction to adjudicate on the matter See FABOLA V. KOGI CHAMBERS OF COMMERCE, INDUSTRY, MINES and AGRICULTURE (2006) 6 NWLR (977) 433(451 and GBEDU V. VINE (2010) 10 NWLR (1202) 227, 260.
Appellant's counsel referred to Exhibit D clause 9 and submitted that exclusive jurisdiction to adjudicate on the matter lies with English Courts Exhibit D is a debt settlement agreement between the appellant and another and the respondent dated 31/3/2020. It is the document that governs the indebtedness of the appellant to the respondent Clause 9 thereof reads,
"This agreement shall be governed in accordance in accordance with English Law under the ' exclusive jurisdiction of the English courts."
On that account appellant's counsel submitted that jurisdiction in any dispute arising from the transaction is in the English courts. The trial court held at page 167 of the record of appeal as follows:
"After considering the arguments of the two Learned Counsel on the issue 1 unhesitatingly agree with the legal stand point of the Learned counsel for the Petitioner that the provision in paragraph 9 of Exhibit D , which purports to confer exclusive jurisdiction on the English Court, relates to the enforcement of the Agreements and the present suit is not instituted to enforce those Agreements but to windup the Respondent/Applicant. There is no gainsaying the fact that the Respondent/Applicant can only be wound up under the Nigerian law i.e. the CAMA."
The above position of the trial court cannot be faulted. Clause 9 of Exhibit D relates to disputes on the agreement while the respondent's petition is for winding up of the appellant.
It was contended by appellant's counsel that the trial court did not take into cognizance paragraphs 13 and 14 of the affidavit in support of the preliminary objection which, according to him, effectively joined issues with the respondent on the appellant's indebtedness. The said
paragraphs 13 and 14 are as follows;
"13. The applicant is not indebted to the Petitioner in the sum claimed. Indeed, as much as US 2,474, 275.47 (two million, four hundred and seventy four thousand, two hundred and seventy five United States Dollars and forty seventy Cents) of the debt alleged by the Petitioner is made up of purported terminal charges and penalties unilaterally imposed on the Applicant by the Petitioner.
14. I very believe that the said terminal charges and penalties cannot be justified or enforced under any circumstances."
As rightly argued by respondent's counsel, the above depositions do not amount to a dispute of the indebtedness of the appellant to the respondent. Rather, they are at best, a question as to the precise amount being owed. In the case of UNIFAM INDUSTRIES LIMITED V. OCEANIC BANK INTERNATIONAL (NIG) LTD (2005) 3 NWLR (911) 83, 101, it was held that winding up of a company for indebtedness is not to be refused where the petitioner is owed moneys which have not been paid because there is a dispute as to the precise amount.
Further, even if it can be held that those depositions amount to a denial of the indebtedness (which is certainly not so) that can only amount to a defence to the petition which is not a matter for preliminary objection. In the case of PERE ROBERTS (NIG) LTD V. ANI (2009) 13 NWLR (1159) 522, 533. It was held that where the basis of a preliminary objection is a defence there is no basis for the objection.
| In the light of what I have stated so far on this issue, I answer issue one (1) in the affirmative and resolve it in favour of the respondent.
ISSUE 2 -
Whether Exhibit A attached to the Respondent's counter-affidavit in opposition to the Appellant's preliminary objection being a photo copy of a certificate issued by the Register of companies for England and Wales is admissible in proof of the juristic personality of the Respondent and its legal capacity to institute or maintain the petition.
Appellant's counsel stated that the appellant challenged the legal personality of the respondent and the onus was on the respondent to prove its legal personality by producing or exhibiting its certificate of incorporation. He referred to Exhibit A which he said was attached to the respondent's written address and is a photo-copy of a certificate purportedly issued by the Registrar of Companies for England and Wales to the effect that the respondent was incorporated under the companies Act, 1985 as a limited Company. It was his submission that Exhibit A is a public document and the only secondary evidence admissible in evidence is a certified true copy of it and no other kind of secondary evidence. He cited and relied on Sections 102 (a) 104p 105, 89 (e) and 90 (1) (c) of the Evidence Act 2011 as well as FAWEHINMI V. IGP (200) 7 NWLR (665) 481 AND OGBORU V. UDUAGHAN (2011) 2 NWLR (1232) 538 among other cases. He further submitted that Exhibit A was therefore inadmissible in evidence. It was added that Exhibit A does not satisfy Section 106 (K) of the Evidence Act, 2011.
Respondent's counsel responded by submitting that in some of the cases cited by appellant's counsel the trial court had the privilege of a trial before examining the nature of the documentary evidence tendered by the plaintiff to establish their legal personality. It was his further submission that Exhibit A being an annexure to an affidavit could only be a photocopy and that it would take a full trial for it to be known if the document from which it was photocopied is the original document. He cited and relied on ADEJUMO V. GOVERNOR OF LAGOS STATE (1970) ALL NLR 187.
In his reply appellant's counsel argued that it was erroneous for respondent's counsel to ask that a full trial be awaited to discover if Exhibit A was made from an original copy since the issue of the legal personality of the respondent is not a part of the substantive petition and goes to the jurisdiction of the court.
In response to the challenge by the appellant in the preliminary objection at the trial court that the respondent is not a corporate body registered in Nigeria or elsewhere, the respondent exhibited Exhibit A to its counter-affidavit. Exhibit A no doubt is a photo-copy of a certificate by the Registrar of Companies for England and Wales to the effect that the respondent was incorporated under the Companies Act 1985 as a limited company on 30/10/2000. It is correct as argued by appellant's counsel that being a public document, the only admissible secondary evidence of it is a certified true copy of it and no other. See Sections 102 (a), 104, 105, 89 (e) and 90 (1) (i) of the Evidence Act 2011. See also the case of MINISTER OF LANDS, WESTERN NIGERIA V. AZIKIWE (1969) ANLR 48, 57-58.
However, as pointed out by the respondent's counsel, Exhibit A was attached to a counter affidavit in response to an interlocutory application by the appellant for the petition to be dismissed or struck out. In otherwords, the objection of the appellant is as to the admissibility of a j document at an interlocutory stage of the petition. The law is that documents attached to an affidavit in an interlocutory application should not be objected to as the issue of admissibility does not arise at that stage. The leading authority on this is the case of ADEJUMO V. GOVERNOR OF LAGOS STATE (1970) ANLR (1) 187, where Adernola, CJN, stated at page 191 as follows;
"Is it proper to object to a paragraph of an affidavit, or a document exhibited in an affidavit, before the substantive action is heard or before it is known to what use document would be put? We think not In our view objection should be taken when all the facts are put before the court and not at the preliminary stage."
His Lordship quoted with approval, the case of In re.Jessopp (1910) W. N 128, where Cozens Hardy, M.R., said that,
'It would be a bad example to decide the question of admissibility at this preliminary stage. "
The authority of Adejumo supra was followed by the Supreme Court in NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (135) 618, 735. The same decision was reached by this court in BATURE V. SAVANNAH BANK OF NIGERIA LIMITED (1998) 4 NWLR (546) 438, 444 (which involved two public documents). See also OLUTAYO V. FEDERAL UNIVERSITY OF TECHNOLOGY, MINNA (2007) 13 NWLR (1051) 274, 301, where AboKi, JCA, stated as follows;
"On the issue of public documents attached to affidavits, where such documents have not been certified. The Supreme Court in the case of ADEJUMO V. GOVERNOR OF LAGOS STATE (1970) 1 ALL NLR 183 held that document in an affidavit must not be objected to until the substantive action comes up for hearing."
The rationale for the position of the taw was explained by Mbaba. JCA in BRITISH - AMERICAN TOBACCO NIGERIA LIMITED V. INTERNATIONAL TOBACCO COMPANY PLC (2013) 2 NWLR (1339) 493, 520 as follows;
"For the purpose of the application, Exhibits W01, W02 and W03 must certainly be photocopies, and cannot be expected to be certified true copies, since the applicant was expected to photocopy the originals of those documents given to them by the issuing registry, as exhibited copies for this application. One cannot expect the applicant to have taken the documents (photocopies) to the issuing registry for certification before using the same for this application."
Appellant's counsel relied on the cases of FAWEHINMI V-INSPECTOR GENERAL OF POLICE (2000) 7 NWLR (665) 481 OGBORU V. UDUAGHAN (2011) 1 NWLR (1232) 538, 578 and ACB V. HASTON (NIG) LIMITED (1997) 8 NWLR (515). 110. As rightly pointed out by respondent's counsel, in the case of ACB V. HASTON (NIG) LTD supra, there was a full that where evidence was taken before the issue was decided This was also the situation in the case of OGBORU V. UDUAGHAN supra. The case of FAWEHINMI V. INSPECTOR -GENERAL OF POLICE supra, a Court of Appeal decision appears to support the position of appellant's counsel However, it is my humble view that the weight of judicial opinion favours the position taken by the trial court and the respondent This position also applies to the argument of appellant's counsel in respect of Section 106 (k) of the Evidence Act.
I therefore enter an affirmative answer to issue two and resolve it in favour of the respondent.
ISSUE THREE (3)
In the face of affidavit evidence before the lower court whether it was not wrong for the lower court to have deferred the determination of ground (v) of the appellant's preliminary objection (to the effect that the petition was not duly authorised by the Respondent's Board of Directors or Shareholders) to the hearing of the Petition.
Counsel for the appellant pointed out that in deposing that the Directors of the respondent have been duly authorised by its shareholder to carry on and manage its business including filing the suit, the respondent did not attach or exhibit to her counter-affidavit, any resolution of the Board of Directors or Shareholders of the respondent authorising the institution of the Petition. He also pointed out that neither the Memorandum of Association nor Articles of Association of the respondent was exhibited. It was submitted that the trial court was not justified in refusing to determine the ground of the objection that the petition was not duly authorised by the respondent's Board of Directors or Shareholders as there was sufficient evidence before it to do so. Reliance was placed on the cases of ARJAY LIMITED V. WILLOW JET L1MITED/TALSERNADE LIMITED (2003) 7 NWLR (820) 577 and ACB PLC V. HASTON (NIG) LTD. (1997) 8 NWLR (515) 110.
Respondent's counsel submitted that the decision of the that court to postpone the issue of authorization of the action to the hearing of the petition accords with the admonition of Rhodes Vivour, JSC in ONOFOWOKAN V. WEMA BANK PLC (2011) 12 NWLR (1260) 24, 58 that "a trial court should always avoid determination of issues which require tested evidence at the preliminary stage."
Ground v of the motion on notice of the appellant was that,
"'The Petition was not duly authorised by the Petitioner's Board of Directors or Shareholders
The trial court after considering the argument of counsel on both sides including relevant authorities cited to it, held as follows,
"... I find myself unable to reach a determination of ground (v) of the preliminary objection. I leave its determination to the hearing of the petition when all the parties would have put all relevant materials before the court, sufficient enough for the determination of the ground."
The trial court's position was based on some reasons including the following;
(i) That in the case of ACB PLC V. HASTON (NIG) LTD J supra there was a full trial before the issue of the authorisation of the suit was decided;
(ii) That the appellant is not a company incorporated in Nigeria, but in the United Kingdom and that appellant's counsel did not persuade the court that the principle of law enunciated in ACB PLC V. HASTON (NIG) LTD supra applies to such a company.
In the case of ACB PLC V. HASTON (NIG) LTD supra, 128, this court held that no person can institute an action in the name of a company unless it is so instituted on the authorisation of the company upon the resolution of the Board of Directors or the resolution of the shareholders and that in the absence of such a resolution any action so instituted on behalf of the company is a nullity. Achike, JCA, as he then was, stated as follows, at page 128,
"The right to initiate a suit can be challenged and invariably is challenged as soon as possible in order to enable the trial court make a decision in respect thereof. Competence of the plaintiff is a fundamental issue as it goes to the question of competence of the court to entertain the suit. In other words, it goes to the issue of jurisdiction."
Being an issue of jurisdiction, the issue of the authorisation to institute the action ought to be decided as soon as it crops up. In the instant case, the facts relating to the ground of objection were adduced by affidavit evidence and there were enough materials upon which the trial could have decided the point. There was no need for the trial court to postpone its decision thereon being that it was a preliminary point that affected the jurisdiction of the court. The trial court therefore erred in postponing its decision on the ground.
The case of ACB PLC V. HASTON (NIG) LTD supra relied upon by the trial court did not decide that an objection of the nature under consideration cannot be taken in limine. The objection was only raised for the first time after trial.
By virtue of Section 15 of the Court of Appeal Act 2004 I shall assume jurisdiction to determine the ground of the objection.
In paragraph 11 of the affidavit in support of the motion to dismiss or strike out the petition, it is deposed that,
"... This petition was not authorised by Us shareholders or Board of Directors,"(See page 69 of the record.
In answer thereto, in paragraph 12 of the counter-affidavit of the respondent, it is deposed,
"That contrary to paragraphs 10 and 11 of the Affidavit the Petitioner was duly incorporated as a business company under the Companies Act of the United Kingdom and its Directors have been duty authorised by its Shareholders to carry on and manage the business of the Petitioner to the best of their abilities, and which authorisation includes the institution of the present winding -up proceedings."
The first point to note about the counter-affidavit is that it was deposed to by one Abdulhammed Abdulkadir, a legal practitioner in the law firm representing the respondent. He did not disclose the source of his information contrary to Section 115 (1) (2) and (4) of the Evidence Act. In the case of ASABORO V. ARUWAJJ (1974) 4SC 119,127, it was held that where a legal practitioner gives information about an office of which he is not in charge or associated with, he should state the source of his information. See also UNIVERSAL TRUST BANK V. KOLESO (2006) 18 NWLR (1010) 1, 13 and 14. Thus the deposition quoted above is hearsay and therefore can not be reckoned with in deciding the point under consideration.
Further more, the resolution of the share holders or the Board of Directors of the respondent authorising the institution of the suit was not exhibited in the counter-affidavit. The memorandum and articles of association of the respondent were not also exhibited. In the case of ACB PLC V. HASTON (NIG) LTD supra. 128, Achike, JCA, as he then wash stated that,
"In the absence of aforesaid resolution any action so instituted on behalf of the company is a nullity."
It must be emphasised that this position of the law is a common law position that applies to all companies that approach the courts in Nigeria whether or not they are incorporated in Nigeria or the United Kingdom, It is also entrenched in the Companies and Allied Matters Act. See Section 244 (1) thereof which makes the management of a company the collective duty of the Board of Directors.
I therefore enter an affirmative answer to issue three and resolve it in favour of the appellant.
As stated earlier in the judgment, the respondent filed a respondent's notice on 4/3/14 praying the court to affirm the decision of the trial court on a ground other than those relied upon by the trial court. The ground thereof is,
"That the Respondent/Petitioner has no obligation to present a Resolution of its Directors or Shareholders authorising the institution of the Petition for the Winding Up of the Appellant/ Respondent in the circumstances that the said Petition had been duly verified and validated by an Affidavit verifying the Petition as deposed to by the Company Secretary and Director of the Respondent/Petitioner and which affidavit verifying
Petition remains unchallenged and uncontroverted by the Appellant/Respondent."
Appellant's counsel filed a notice of preliminary objection to the respondent's notice on the ground that the respondent is seeking to reverse a distinct holding or decision of the trial court rather than contending that the decision be affirmed on a ground other than those relied upon by the trial court. Arguments in respect of the objection are contained in pages 7-9 of the appellants amended reply brief of argument.
In the argument, it is pointed out that the trial court held that the respondent is obliged to produce a resolution of its Board of Directors or Shareholders authorising the Institution of the Petition where there is a challenge to the competence to institute the same, while the respondent in its notice is contending otherwise. It was submitted that the respondent ought to have filed a cross-appeal and not a respondent's notice. Counsel cited and relied on Order 9 Rule 2 of the Court of Appeal .Rules and the cases of SALVADOR V. INEC (2012) 7 NWLR (1300) 417 AND OLUSOLA V. TRUSTHOUSE PROPERTIES LTD (2010) 8 ,NWLR (1195) 1 28.
The respondent did not respond to the argument of the appellant's counsel. The Implication is that the respondent has conceded the objection. However, this court will still have to determine the objection on its merit.
The trial court following ACB PLC V. HASTON (NIG) LTD supra, held that the law is that once a defendant challenges the competence of a company to institute an action, the onus falls on the company to produce before the court the resolution of the Board of Directors or its shareholders authorising the institution of the action.
In the respondent's notice what is sought is an affirmation of the decision of the trial court on the ground that the respondent has no obligation to present a resolution of its Board of Directors or Shareholders on account of Rule 18 (1) of the Companies Winding-Up rules. It is therefore clear that the respondent is essentially attacking the above stated decision of the trial court and seeking a reversal of it. This is not within the ambit of Order 9 Rule 2 of the Court of Appeal Rules, 2011 which provides that,
"A Respondent who desires to contend on the appeal that the decision of the court below should be affirmed on grounds other than those relied upon by that court must give notice to that effect specifying the grounds of that contention."
In the case of SALVADOR V. INEC (2012) 7 NWLR (1300) 417, 453, this court held that, "invariably, a responder's notice denotes a judicial process filed by a respondent in an action who, though conceding to the conclusion reached in the judgment appealed by the appellant seeks that the judgment be varied or affirmed on other grounds".
A respondent's notice is not designed to seek a reversal of a finding by the trial court. Where a respondent seeks to correct errors in a judgment or ruling that he agrees with and which error stands on his way in the main appeal, he must file a cross-appeal
In the case of OLUSOLA V. TRUSTHOUSE PROPERTIES LTD (2010) 8 NWLR (1195) 1,28 this court held that.
"Where a respondent seeks to set aside a decision of the trial court on any crucial or material aspect, he must do so by way of a cross-appeal and not a respondent notice." See also EMEKA V. OKADIGBO (2012) 18 NWLR (1331) 55, 97, OGHORONE V. OGHORONE (2010) 3 NWLR (1132) 564, 588 AND BUHARI V. OBASANJO (2003) 113 LRCN 2471, 2491.
In the light of the foregoing, I agree with appellant's counsel that the respondent's notice is incompetent. I uphold the preliminary objection against it and accordingly strike out the respondent's notice.
On account of my answer to issue three, I come to the conclusion that the appeal has merit and I allow it. Consequently, I set aside the ruling of the trial court dated 14/11/2013 and I uphold the preliminary objection of the appellant on the ground only that the petition was not duly authorised by the respondent's Board of Directors or the shareholders. Consequently, Suit No FHC/ABJ/PET/12/2010 is hereby struck out for being incompetent.
The parties shall bear their costs.
ABUBAKAR D. YAHAYA. JCA: l have had the benefit of reading earlier the lead judgment of my learned brother Ekanem JCA, just delivered, to which I fully agree. The absence of any proper evidence in terms of a Resolution of the Board of Directors or the shareholders of the respondent rendered its action in instituting the action to wind up the appellant, a nullity. It was a dear case and the trial court had no jurisdiction to adjudicate over the Suit For this, and the fuller reasons given in the lead judgment. I a/so strike out Suit No. FHC/ABJ/PET/12/2010.
TANI YUSUF HASSAN, JCA: I read in advance the lead judgment just delivered by my learned brother, Joseph E. Ekanem, JCA.
I agree with the reasoning and conclusion therein. No order as to cost.
M. I. Abubakar, Esq With him, Mrs Seumbur lyange) for appellant.
Dayo Ayoola - Johnson, Esq; for respondent.