NICKOK BEST INTL LTD v. UBA PLC

CITATION: (2018) LPELR-45329(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON WEDNESDAY, 13TH JUNE, 2018Suit No: CA/L/206/2013

Before Their Lordships:

MOHAMMED LAWAL GARBA Justice, Court of AppealJOSEPH SHAGBAOR IKYEGH Justice, Court of AppealJAMILU YAMMAMA TUKUR Justice, Court of Appeal

BetweenNICKOK BEST INTERNATIONAL LIMITED - Appellant(s)

AndUNITED BANK FOR AFRICA - Respondent(s)

RATIO DECIDENDI1. ACTION - 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 inNigeria. See Fawehinmi v. NBA (No.2) (1992) 2 NWLR (105) 558; Nwokedi v. R.T.A. Limited (2002) 6 NWLR (762) 181; Ataguba & CompanyLimited 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 oragainst any party other than a natural person or persons, unless such party has been given, by statute, expressly or impliedly, or bycommon 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) 13NWLR (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 aspecific and particular name or designation. Fawehinmi v. NBA (No.2) (supra), N.I.I.A. v. Ayanfalu (2007) 2 NWLR (1018) 246. In lawtherefore, it is only such an artificial person/party that possesses the legal capacity and juristic personality to sue or be sued and where it issuccessfully 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 thesole 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 anincompetent 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, J.C.A. (Pp. 7-8, Paras. A-F) - read in context

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2. ACTION - TRAVERSE: 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 proofof the fact/s so denied and disputed. Where vital and material fact/s in a party's case are not so specifically, frontally and categoricallydenied 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 evasiveaverments in respect of specific, crucial, positive and distinct facts are considered not enough and not effective controversion or traverse toraise 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 admitor deny a specific, positive and categorical fact pleaded in his opponent's pleadings would fall short of a proper and effective traversecapable 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) 8NWLR (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 rightsor 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 ofBlack's Law Dictionary as "A conflict or controversy, espouse that has given rise to a particular law suit." Oxford Advanced Learner'sDictionary 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 Statev. 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 requireproof by evidence, facts deposed therein on a particular issue must be in conflict or controversy and strongly denying and disputing acommon 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 pungentassertion or deposition of fact, does not constitute an effective denial, a conflict or controversy to give rise to a dispute between the partiesthat would in law, call for proof. The statement that a party is not in a position to admit a fact means thathe 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 aposition 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 caseof 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 traversemust be made either by a denial or non admission either expressly or by necessary implication. So that if a defendant, refuses to admit aparticular 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 toproof." 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 insufficientdenial - 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 statementof Claim dated 10th February, 2009 and filed on the 28th July, 2009 had pleaded that: - "That Plaintiff is a Limited Liability Companyincorporated 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 statedthat: -"SAVE AND EXCEPT as hereinafter expressly admitted the Defendant herein denies each and every allegation of facts contained in thePlaintiff's Statement of Claim as if each and every such allegation of facts were set out and traversed seriatim." Then in answer to thedeposition/averment of the Appellant in paragraph 1 of its pleadings above, the Respondent averred in paragraph 1 that: - "The Defendant isnot 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 inparagraph 1 of its pleadings, is specific, positive, assertive unequivocal cogent and pungent that it is a limited liability company incorporatedunder the law of the Nigeria and engaged in general trading with its head office at Ware Plaza, International centre for commerce, Trade Faircomplex, Badagry Expressway, Ojo, Lagos. A proper and effective denial and traverse of the averment that would constitute an issue ofdispute between the Appellant and the Respondent should be one which is specific, negative, categorical, frontal, in direct conflict with anda challenge to the fact that the Appellant is a company incorporated under the laws of Nigeria on incorporation or registration of companieslike the Appellant. The averment by the Respondent that "the defendant is not in a position to admit the averment in paragraph 1 of thestatement of claim" is not a denial of any category, but a clear admission that the Respondent does not know anything about the factasserted cogently and positively by the Appellant of its status, as an incorporated limited liability company in Nigeria which it did not denyor dispute. Taking into account the whole of the other averments of the Respondent in the entirety of the statement of defence and counterclaim, it is beyond viable argument that the Respondent did not dispute or even intended to dispute or challenge the incorporation or juristicpersonality 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 financialinstitution not only in Nigeria, but beyond, entered into the agreement with the Appellant in respect of the transaction that led to the case, ifit had any doubt as to whether the Appellant is/was an incorporated company with the requisite legal status to undertake the transaction ofimportation 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 thefact 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 theabsence of the denial, the Respondent is presumed to have admitted the fact deposed therein. The legal consequence is that no issue orlegal dispute was effectively joined by the parties on the fact that the Appellant is an incorporated limited liability company under therelevant laws in Nigeria and so possesses the required legal capacity and juristic personality to sue or be sued in its name. In the absence ofa 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 proofpresupposes 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 waswrong 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 theAppellant."Per GARBA, J.C.A. (Pp. 9-17, Paras. A-C) - read in context

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3. EVIDENCE - EVALUATION OF EVIDENCE: Duty of trial judge to evaluate evidence and nature of the duty of an appellate court inreviewing 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 inproof and defence of their respective cases. That duty and function befit the trial Court because of its vintage and unique position ofphysically seeing and hearing the witnesses testify or give their evidence and particularly, observing, and experiencing their often, subtleand influencing nuances or demeanour on the evidence they give on particular points or issues. In that unique position, a trial Court is bestsuited for a first hand appraisal and assessment of the entirety of the facts of the case and evaluation of the evidence given, particularly asit relates to the credibility of the witnesses, for a proper ascription of the deserved probative value to the evidence, drawing necessaryinferences 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) 7SC (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, butin particular, an appellate Court which, as its name shows, essentially a Court which has the primary function and duty of determination ofcomplaints against decisions of lower/trial Courts by way of appeals. As a Court which does not physically see and hear witnesses giveaccounts of facts in evidence, an appellate Court cannot properly embark on the assessment and appraisal of the credibility of suchwitnesses which has a bearing influence on the probative value to be ascribed to their and other pieces of evidence placed before a trialCourt. See Kazeem v. Mosaku (2007) 2 SC, 22, (2007) 17 NWLR (1064) 523, Agbaje v. Agboola (supra), Nwankpu v. Ewulu (supra), AGLeventis 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 trialeither did not properly evaluate or failed to evaluate documentary evidence which was placed before it by the parties and there is an appealin which a valid ground complaining of the improper or non evaluation of the evidence by the lower trial Court was brought to the appellateCourt, the appellate Court would be in, as good a position, as the trial Court to evaluate the said evidence, draw proper inferences and makenecessary 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 peculiarfacts and in the circumstances of the case. The issue of the credibility of witnesses, over which the trial Court enjoys its unique and vintageposition 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 crossexamination of the sole witnesses called by each of the parties during which varied answers were elicited by counsel and crucial physicalobservations on the mances and demeanour of the witnesses were made by the trial Court. In the case of Layinka v. Makinde (2002) 10NWLR (775) 358 @ 374-5 Uwaifo, JSC had said that: "An appellate Court has a limited function in the determination of a dispute between theparties. It does not try a case and therefore does not see and hear witnesses testify. An appellate Court upon a complaint made to it isconcerned with seeing whether a trial Court has or has not made some substantive or procedural errors or has or has not failed to make anyor proper findings which the evidence available deserves. It is not the function of an Appellate Court to re-try a case on the notes ofevidence 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 soafter tortuously setting it out verbatim in more than one hundred (100) pages of the decision to strike out the case. In my view, Section 15of 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 anddischarge its basic and primary duty and function of first hand assessment, appraisal and evaluation of the evidence given by witnessesbefore it, should result into a transfer of such duty and function to this Court whose own primary function is to review the discharge of thetrial 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 toproperly and fully review the discharge by a trial Court of its primary judicial duty of trial that essentially involves taking record of allevidence placed before it by the parties, evaluating the evidence, making findings thereon and reaching conclusions on the issues of disputebased on the evidence. It is only where a trial Court discharges the duty and performs the primary function of conducting a proper trial anda party complains of improper or failure to discharge the duty in respect of some aspect of the trial, that the provisions of Section 15 shouldbe invoked to correct the errors committed by the trial Court in the ultimate decision/conclusion it made/reached at the end of the trial. Forthe purpose of evaluation of evidence, the provisions may be resorted to where a trial Court improperly evaluated any or all the evidence orfailed to evaluate some relevant and material evidence adduced by any of the parties in its decision. The appellate Court, assuming thepowers vested in Section 15 of the Court of Appeal Act would then either review; by re-evaluation or embark on evaluation of the evidencenot evaluated by the trial Court as the case may be, and correct the errors committed in the improper evaluation or failure to evaluate theportion of the relevant and material evidence placed before. There should, or must be, evaluation of the evidence by a trial Court and thenfailure 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 whenthere was no evaluation of or total failure to evaluate all or any of the entire evidence placed before a trial Court. All the judicial authoritieson 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 someevidence 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 theparties before it, in its decision. Trial Courts, being Courts of first instance and first step in the judicial hierarchy in the country, mustendeavour to fully discharge the primary duty and perform the basic judicial function of the determination of disputes submitted to them byparties, 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 onthe parties against decisions of those and other Courts. That would enable the appellate Courts have the benefit of and opportunity toconsider the pronouncements by trial Courts on the merit of all the issues placed before them by the parties, in appeals against theirdecisions. Lots of time and resources would be served by that procedure in the final determination or disposal of cases by the Courts. All theabove said, I have earlier stated that the evaluation of the evidence before the trial Court would necessarily involve the impressions of thesole 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 ofthe matter. In the circumstances, the Court is not inclined to accept the invitation to embark on the evaluation of the evidence, from theprinted notes of the Record of Appeal and deciding the case for the parties. The invitation is rejected and refused."Per GARBA, J.C.A. (Pp.19-27, Paras. D-D) - read in context

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MOHAMMED LAWAL GARBA, J.C.A. (Delivering the

Leading Judgment): 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,

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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 10th 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

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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

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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 Counsel 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) 2 NWLR (24) 598. He maintains that the general

denial by the Respondent is neither positive, categorical,

specific or

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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

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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."

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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

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(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.

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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

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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.”

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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

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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

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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: -

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"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

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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

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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

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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

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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 Court, 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 (2) 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

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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.

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,

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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. Ogeh (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

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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

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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

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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.

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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

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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

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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

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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.

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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.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: 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.

JAMILU YAMMAMA TUKUR, J.C.A.: 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.

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Appearances:

K. O. Udemezue For Appellant(s)

Johnson Odionu with him,I k e n n a I f e d i l o a n d J o n e A n y i k a ForRespondent(s)

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