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CORPORATE BODIES HAVE THE RIGHT TO SUE FOR INFRINGEMENT OF FUNDAMENTAL RIGHTS

Dictum

In Okechukwu vs. EFCC (2015) 18 NWLR (Pt 1490), the Court of Appeal held as follows – “Assuming a limited liability company is involved in a case where it was denied fair hearing, it has the right to sue for breach of its fundamental right to fair hearing. Again if the processes filed by the appellants were couched in such a way to show that the 1st Appellant’s ordeal and unwarranted arrests and detention was based primarily on the fact that he is the Managing Director of the 2nd appellant, then the 2nd appellant has a right to sue for the infringement of the fundamental rights of its managing Director.’

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CHANGE IN LAW DOES NOT NULLIFY RIGHTS BASED ON THE OLD LAW

When the Supreme Court departs from its earlier decision on a point, the departure does not operate to generally overrule and nullify all previous decisions that followed the earlier decision it has departed from. The departure serves to chart a new direction to be followed without affecting the previous status quo. If the new decision is one on procedure including venue, pending and new cases at all levels will now be decided in accordance with the new decision. If the new decision applies the law on the existence of rights, interests and obligations differently, new and pending cases will be decided according to it depending on when the cause action arose or when the right, interest or obligation came into being. The general principle of law is that a change in law does not result in the nullification of rights and interests based on the previous law. That is why amending or repealing legislations provide for the saving of such rights and interests including ongoing situations that originated on the basis of the old law. On the basis of this general principle, it is the law prevailing at the time the right or interest accrued or at the time a situation arose and not the new law that determines its validity. In the light of the foregoing, I hold that the Learned respondent’s counsel reliance on the principle of ex nihilo nihil fit as espoused by the Legendary Lord Denning in MACFOY v. UAC (1962) AC, has no basis here.

– E.A. Agim, JCA. Ogidi v. Okoli [2014] – CA/AK/130/2012

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APPLICATION OF THE CORPORATE VEIL LIFTING IS NOT EXCLUSIVE TO THE FEDERAL HIGH COURT JURISDICTION

The doctrine of lifting the corporate veil has been utilised by the Courts when it becomes necessary to expose the individual hiding behind the corporate entity for the purpose of doing justice. The application of the doctrine is not exclusive to the jurisdiction of the Federal High Court. See Alade Vs Alic (Nigeria) Limited (2012) All FWLR (Part 563) 1849, Adeyemi Vs Lan & Baker Nigeria Limited (2000) 7 NWLR (Part 663) Oyebanji vs The State (2015) All FWLR (Part 800). In Alade v. Alic (Nig) Ltd (2012) All FWLR (Pt. 563) 1849, the action commenced in the High Court of Oyo State with the claimant claiming about Three Million Naira as damages for fraud committed against him by the 1st defendant – a limited liability company and plaintiff’s business partner, and the 2nd defendant – Managing Director of the 1st Defendant. The defendants opposed the action. The trial judge entered judgment for plaintiff against the defendants jointly and severely by lifting the veil of the 1st defendant. The defendants’ appeal to the Court of Appeal was successful. However, the plaintiff appealed to the Supreme Court and one of the issues for determination was whether the defendants/respondents could be held jointly and severally liable for damages occasioned as a result of a fraudulent breach of partnership agreement between the appellant and 1st respondent. In agreeing with the trial judge that the defendants should be jointly and severally liable for the fraudulent breach of the partnership agreement, the Supreme Court held that the Oyo High Court Judge rightly applied the principle of lifting the veil. His Lordship, Galadima JSC held at page 1862-1863E-B thus: “…One of the occasions when the veil of incorporation will be lifted is when the company is liable for fraud as in the instant case. In FDB Financial SERVICES Ltd v. Adesola (2002) NWLR (pt. 668) 170 at 173, this Court considering the power of Court to lift the veil of incorporation held thus: “The consequence of recognising the separate personality of a company is to draw a veil of incorporation over the company. One is therefore generally not entitled to go behind or lift this veil. However, since a statute will not be allowed to be used as an excuse to justify illegality or fraud, it is a quest to avoid the normal consequence of the statute which may result in grave injustice that the Court as occasion demands have to look behind and pierce the corporate veil.” Also, in Adeyemi v. Lan & Baker (Nig) Ltd (2000) 7 NWLR (Pt. 663) 33, it was held as follows:- “A party should not be allowed to benefit from its own wrong. This is encapsulated in the Latin maxim “Nullis commodium capere potest de injuria sua pria.” It is abundantly clear that the 2nd respondent was responsible for the management of the 1st respondent company and on him fell squarely the responsibility of rendering proper accounts of the partnership business on behalf of the said 1st respondent. It was as a result of this that the trial Court rightly looked beneath the facade and lifted the veil of incorporation to discover the thread that ties the 1st respondent and the 2nd respondent together as parties in conspiracy to commit fraud and committing that fraud. The 2nd respondent is therefore jointly and severally liable with the 1st respondent to make good all sums improperly paid out or accrued due to his failure to exercise the care necessary in the running of the 1st respondent.” (Underlining supplied). In Oyebanji v. State (2015) All FWLR (Pt. 800) 1256, the criminal trial commenced at the Oyo State High Court, where the appellant was charged for stealing a sum of money contrary to and punishable under Section 390(9) of the Criminal Code, Laws of Oyo State 1978. The money alleged to be stolen by the appellant was received by him in his capacity as managing director of Baminco Nigeria Ltd and the money was the property of Associated Commodities and Foodstuffs Nigeria Ltd that was engaged in a venture with Baminco Nigeria Ltd. The money was meant for the importation of certain goods, which Baminco Nigeria Ltd failed to purchase and the money was unaccounted for. The appellant was tried and convicted for stealing the money as the trial Court reasoned that the facts of the case required lifting the veil of Baminco Nigeria Ltd to reveal the appellant as the real fraudster. The appellant’s appeal to the Court of Appeal and the Supreme Court failed. Rhodes-Vivour JSC at pages 1279 1280 of the judgment stated as follows: “My Lords, after lifting the veil of incorporation of Baminco (Nig) Ltd, both Courts below were able to see that the appellant is the alter ego of Baminco (Nig) Ltd. He collected the sum off N1,180,593.75 (one million, one hundred and eighty thousand, five hundred and ninety-three Naira, seventy-five kobo) from Associated Commodities and Foodstuffs (Nig) Ltd to import tyres, tube and granulated sugar on the company’s behalf. The Courts further found that the sums collected by the appellant were not paid into Baminco Nig) Ltd’s account, neither was a letter of credit for the importation of the goods in the name of Baminco (Nig) Ltd. It becomes clear that the appellant never imported the goods or returned the money despite repeated demands. The appellant acted in his own interest and not on behalf of the company. The appellant’s acts amount to fraudulent conversion of N1,180,593.75 (one million, one hundred and eighty thousand, five hundred and ninety-three naira, seventy-five kobo). A clear case of stealing.” In the same judgment, Ogunbiyi JSC supported the application of the principle of lifting the veil of incorporation and said at page 1283 of the report, inter alia, as follows: “….The principle of ‘lifting the veil of incorporation’ is where it becomes expedient to expose the individual hiding behind the corporate entity, for the purpose of doing justice. The case is issued, especially with reference to the evidence of PW2, who described the appellant affirmatively as the ‘all in all’ of the company, gives the reason why the appellant should be exposed. The act against the company is fraudulent and depicts evidence of manipulation and deceit. In the absence of any evidence of a separate bank account in the name of Messrs Baminco (Nig) Ltd, the appellant’s dealings with the Associated Commodities was in his own person and capacity. He cannot now pretend and seek to wriggle out of it…”

— M. Peter-Odili, JSC. Oboh & Anor v. NFL (SC.841/2016, January 28, 2022)

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WHEN A LACUNA IN LAW MEETS WITH THE RIGHT OF A CITIZEN

A lacuna is said to exist in law when there is a lack of specific and or general law or a law which is of universal application which can be applied in a matter or situation before the Court. Where there is no specific law but there are existing general laws enacted in respect of similar matters, the general principle is that the general law enacted in respect of similar matters or a law which is of universal application and which has provisions relating to a similar situation before the Court must be applied to resolve the situation. Even, where in very rare cases, there is no existing law regulating or relating to a particular situation brought before the Court, a citizen who has a genuine grievance and has approached the Court for a solution will not be left without a remedy. That is the purport of the Supreme Court’s decision in PDP v. INEC (SUPRA) AT 241 (D-F) where the Court per Uwais JSC held as follows: “For this Court to perform its function under the Constitution effectively and satisfactorily, it must be purposive in its construction of the provisions of the Constitution. Where the Constitution bestows a right on the citizen and does not expressly take away nor provide how the right should be lost or forfeited in the circumstance, we have the duty and indeed the obligation to ensure that the enured right is not lost or denied the citizen by construction that is narrow and not purposive. To this end the established practice of this Court is where the constitutional right in particular, and indeed any right in general, of a citizen is threatened or violated, it is for the Court to be creative in its decisions in order to ensure that it preserves and protects the right by providing remedy for the citizen.”

— M.O. Bolaji-Yusuff, JCA. CCB v Nwankwo (2018) – CA/E/141/2017

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INCORPORATED BODIES QUALIFY AS A PERSON

On whether an incorporated body qualifies as a “person”, it is trite that where a company, or other body of persons, is registered under the Companies and Allied Matters Act, it is vested with the status of a legal entity and is regarded as a person. In Kasandubu vs. Ultimate Petroleum Ltd (2008) 7 NWLR (Pt.1086), a person was defined to mean both artificial and natural persons and includes sole or public bodies, corporate or incorporate.

— Oweibo, J. Megawatts v. Gbagada phase (2020) – FHC/L/CS/982/2020

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TWO WRONGS DO NOT MAKE A RIGHT – GARBA’S CASE

As the students were wrong in going on a rampage, the University Authorities will on their own part be wrong in using means other than those allowed them by law in dealing with the disturbance. Two wrongs, they say, do not make one right. – Oputa, J.S.C. Garba & Ors. v. The University Of Maiduguri (1986) 1 NWLR (Pt.18) 550

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WHEN IS THERE DISPUTE BETWEEN THE FEDERATION & A STATE

In Attorney-General of the Federation v Attorney-General of Imo State (1983) 4 NCLR 178, it was held that before the original jurisdiction of the Supreme Court can be invoked under section 212 of the 1979 Constitution, the following criteria must be satisfied:- “(1) There must be a justiciable dispute involving any question of law or fact. (2) The dispute must be:- (a) between the Federation and a State in its capacity as one of constituent units of the Federation; (b) between the Federation and more States than are in their capacities as members of the constituent units of the Federation; or (c) between States in their aforesaid capacities, and the dispute must be one on which the existence or extent of a legal right of a State in its aforesaid capacity is involved.” (Relied on in AG Kano State v AG Federation (2007) – SC 26/2006)

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