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His Lordship, Hon. Justice Sanusi Kado of the National Industrial Court of Nigeria, Abuja Judicial Division on Tuesday 15th May in a ruling delivered upheld preliminary objection and struck out suit Mrs. Omotokunbo Abiodun Daria and 6 others Vs. The Nigeria Incentive-Based Risk Sharing System For Agriculture Lending Plc and Anor due to lack of legal capacity on part of the Defendants to be sued that the certificate of incorporation which the Claimants pleaded to be relied on at the trial is not the certificate of incorporation of the Defendant.
Dr. Olukayode Ajula, Esq; Counsel for the Defendants in the notice of preliminary of objection filed is seeking for an order of this Court striking out this suit for lack of requisite jurisdiction to adjudicate over this matter on the grounds that the Defendants are not juristic persons recognised by any law. They are not natural persons, neither are they creation of any statute nor artificial persons created by incorporation and The Defendants lack the capacity to sue or be sued in any Court.
In opposition to the notice of preliminary objection, Counsel for the Claimants/Respondents submitted that the 1st and 2nd defendants are juristic personalities known to law by virtue of a certificate of incorporation and other incorporation documents duly certified and issued by the corporate Affairs Commission, Abuja in respect of the 1st and 2nd Defendants/Applicants.
In his reply on points of law raised by the claimant, Counsel for the Defendants/Applicants maintained that proof of incorporation is the certificate of incorporation and not the memorandum or Article of Association which are pre-incorporation documents.
After reviewing the argument of the parties, the Court Presided by Hon. Justice B. B. Kanyip expressed thus;
“...I painstakingly and critically examined the originating process filed before the court and the processes attached therein. It is manifestly clear and indisputable from exhibit pleaded by the Claimants to rely on at the trial which is the purported certificate of incorporation of the 1st Defendant.
It is manifestly clear that the name of the corporate personality which the certificate bore witness of having been duly registered and incorporated is ‘‘NIRSAL PLC’’. Therefore, in my humble view the name of entity disclosed by exhibit ‘B’ is quite different from the 1st Defendant.
The certificate of incorporation which the Claimants pleaded to be relied on at the trial is not the certificate of incorporation of the 1st Defendant. Having failed to produce the certificate of incorporation of the 1st Defendant, any talk or argument about the 1st Defendant being a body corporate or incorporated is to my mind hollow and baseless.
The position of the law is that he who assert must prove his assertion otherwise his position will be rejected for lack of proof.
The argument by the Claimants to the effect that since the Defendants have prior to the suit held themselves out in their letter head and other documents to be known and called ‘‘The Incentive-Based Risk Sharing For Agricultural Lending’ is evidence of incorporation is a clear misconception of what incorporation meant. The submission that the name of 1st Defendant given on the complaint as ‘‘The Incentive-Based Risk Sharing for Agricultural Lending’’ as a full description of the abbreviation ‘‘NIRSAL PLC’’ seems to me very illogical and untenable in the face of clear and unambiguous provisions of section 36(6) of the Companies and Allied Matters Act.
In view of the foregoing, the Defendants objection is meritorious it is hereby upheld. This suit is hereby struck out due to lack of legal capacity on part of the Defendants to be sued.
