(2018) LPELR-45338(CA)

Transcription

1 AEROBELL (NIG) LTD & ORS v. FIDELITY BANK CITATION: TIJJANI ABUBAKAR In the Court of Appeal In the Lagos Judicial Division Holden at Lagos ON FRIDAY, 9TH MARCH, 2018 Suit No: CA/L/1168/2015 BIOBELE ABRAHAM GEORGEWILL JAMILU YAMMAMA TUKUR AEROBELL (NIG) LTD & ORS Before Their Lordships: Between And FIDELITY BANK - Respondent(s) RATIO DECIDENDI Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) 1. APPEAL - INTERFERENCE WITH FINDING(S) OF FACT(S): Instances when an appellate Court will not interfere with findings of fact of the lower Courts "Adverting my mind to the evidence before the lower Court I am of the firm view that the findings of the lower Court was in accord with the evidence before it. The invitation of the Appellants to this Court to set aside the decision of the lower Court do not find favour with me as there is in my view nothing perverse about the said findings. The power of this Court to reverse the findings of fact of a trial Court can only be invoked where the finding of fact made by the trial Court is not supported by evidence. See: UNION v. OZIGI (1994) LPELR-3389 (SC), ADEKEYE & ORS v. ADESINA & ORS (2010) LPELR-103 (SC)."Per TUKUR, J.C.A. (Pp , Paras. D-A) - read in context

2 2. COMPANY LAW - DIRECTORS: Whether the board of directors have the power to fix dividends "It is elementary law that the two main organs by which the company acts are the General Meeting and the Board of Directors. It is also trite that powers and functions of these two organs can be ascertained by a study of the provisions of the Companies and Allied Matters Act Cap C35, LFN 2004, which has made copious provisions streamlining the said functions and the Memorandum and Articles of Association of the Company. See: Section 63(1) C.A.M.A.; and S.T.B. Ltd. v. Interdrill Nig. Ltd. (2007) ALL FWLR (Pt. 366) 757 at 771 paras. C-F (CA). I agree with learned counsel that with regards to the facts of this appeal, an examination and proper construction of the relevant provisions of C.A.M.A. is apposite. Section 379 which makes provisions on dividends is herein reproduced thus: (1) A company may, in general meeting, declare dividends in respect of any year or other period only on the recommendation of the directors. (2) The company may from time to time pay to the members such interim dividends as appear to the directors to be justified by the profits of the company. (3) The general meeting shall have power to decrease the amount of dividend recommended by the directors, but shall have no power to increase the recommended amount. (4) Where the recommendation of the directors of a company with respect to the declaration of a dividend is varied in accordance with Subsection (3) of this section by the company in general meeting, a statement to that effect shall be included in the relevant annual return. (5) Subject to the provisions of this Decree, dividends shall be payable to the shareholders only out of the distributable profits of the company. A calm examination of the above leads to the inevitable conclusion that it is the company in a general meeting that has the power to decide whether dividends should be paid for a certain year. What the Directors do is fix an amount they feel is appropriate plus the scheme for payment, without the declaration by the General Meeting, any such dividend fixed by the Directors will however remain inchoate. See: A-G, OF FEDERATION v. A-G, OF LAGOS STATE (2013) LPELR-20974(SC); SHERIFF & ANOR v. P.D.P. 4 ORS (2017) LPELR-41805(CA); and OLALERE v. OYE & ANOR (2017) LPELR-43262(CA). The above is reinforced by Section 214 of CAMA, which provides that the declaration of dividend is part of the ordinary business of the general meeting of a company. It is the duty of directors of a Company to exercise powers vested in them for the benefit of the company. Their fiduciary relationship is not for individual advantage but for the company. The directors of the company herein do not have the power to usurp the role of the company in general meeting on declaration of dividends. The only time when directors may be allowed to step into the shoes of the company in respect of roles prescribed for the company under the enabling statute wherein, it is registered is where the members of the board of directors are also the only shareholders of the company and even then their actions should not involve fraud. See: Okeowo & Ors v. Migliore & Ors (1979) LPELR 2441 (SC)."Per TUKUR, J.C.A. (Pp. 6-9, Paras. C-B) - read in context

3 3. COMPANY LAW - DIVIDEND: When does dividend accrue "The first port of call in the determination of this issue requires firstly, the resolution of the question: when does dividend accrue? That is, when does it come into legal existence as a debt owed by the company to its shareholders? Section 385 of CAMA, provides an apt answer to the above question when it provides that "Dividends shall be special debts due to, and recoverable by, shareholders within 12 years, and actionable only when declared". What this means in relation to this appeal, is that dividends accrue when they are declared and the dividends in question here accrued on October, 1998."Per TUKUR, J.C.A. (P. 14, Paras. A-D) - read in context 4. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: Whether he who asserts must prove "Appellant's have asserted that their names were still on the Register of Members and that by virtue of Section 167(d) of the Evidence Act, 2011, the failure of the Respondent to produce the Register of Members ought to be interpreted as supporting Appellant's position. While it is true that Section 167(d) with regards to presumption of facts provides that the Court may presume that evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it, that is not enough to show that the names of the Appellants were still in the Register of Members. It is elementary law that the burden of establishing facts upon which legal rights and liabilities depends in line with the Provisions of Section 131 and 132 of the Evidence Act 2011 is on the person who asserts those facts. The Appellants having claimed to still be members the Respondent have the legal obligation of satisfying the Court that those facts are true. See: Nweke v. State 2017 LPLER (SC); Okoye v. Nwankwo (2014) LPELR (SC); KAJO v. BENUE CEMENT CO. PLC (2013) LPELR (CA)."Per TUKUR, J.C.A. (Pp , Paras. C-C) - read in context 5. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: Whether a plaintiff must rely on the strength of his case and not the weakness of defence's case "I need further point out that the Appellants can only succeed on the strength of their case and certainly not on the perceived weakness in the defence. See: OKOYE & ORS v. NWANKWO (SUPRA). I agree with the learned trial Judge that no evidence was forthcoming from the Appellants to establish their membership of the Respondent at the relevant period."per TUKUR, J.C.A. (P. 17, Paras. C-E) - read in context 6. EVIDENCE - CROSS-EXAMINATION: Effect of evidence elicited during crossexamination "I had earlier in the course of this judgment drawn attention to the decision of the Supreme Court on the question in the Admin & Exec. of the Estate of ABACHA v. EKE-SPIFF & ORS (Supra). I need only further emphasize that failure to call witnesses does not necessarily translate to no evidence in support of pleadings as failure to call witnesses is not the same as failure to place evidence before the Court. Evidence elicited from a plaintiffs witness under cross-examination forms part of the case of the defendant. The law allows a party to rely on evidence he elicits by crossexamination of his opponent's witnesses as long as the evidence is in respect of facts which he pleaded. See: UCHIV & ANOR v. SABO & ORS (2015) LPELR (CA)."Per TUKUR, J.C.A. (Pp , Paras. F-D) - read in context

4 7. INTERPRETATION OF DOCUMENT - CONSTRUCTION OF DOCUMENT(S)/INSTRUMENT(S): Cardinal rule of interpretation of instrument, document or agreement "I agree with learned counsel for the Respondent that a proper construction of the Written Agreement of the parties shows clearly the intention of the parties to the effect that the Appellants have given up all claims and interests in relation to the shares under reference. The operative words in the agreement are 'severe' "claims" or "incumbrances which all when given a community reading leads to no other conclusion than that the Appellants have divested all claims and interests relating to the shares sold and by extension cut off all relationship with the company. The feeble attempt made by the Appellants to construct the words used in the agreement outside their context do not impress me, as the law is trite that in construing documents and other Written Agreements, it is mandatory that the whole passage or document and every part of it should be taken into account, and the terms and conditions must be read and interpreted within their context. See: NIGERIAN ARMY v. AMINUN-KANO (2010) LPELR 2013 (SC); ROSENJE v. BAKARE (1973) LPELR-2954 (SC)."Per TUKUR, J.C.A. (Pp , Paras. C-B) - read in context

5 8. PRACTICE AND PROCEDURE - RESTING CASE: Implication of a defendant resting his case on that of the plaintiff "The correct principle of law with regards to uncontroverted evidence is that same can be regarded as admission by the other party and validly acted upon by the Court. See: INTERDRILL (NIG.) LTD & ANOR v. U.B.A. PLC (2017) LPELR (SC), Pp , Paras. F. LAU v. P.D.P. & ORS (2017) LPELR-42800(SC); MUSA & ANOR v. IBRAHIM (2017) LPELR (CA); and U.B.A. PLC v. PATKAN VENTURES LTD (2017) LPELR-42392(CA). Notwithstanding the above, the fact that a Defendant/Respondent in a trial refuses to call any witness or chooses to rest his case of trial does not automatically translate to the fact that judgment must be entered in favour of the Plaintiff/Claimant/Petitioner. The Supreme Court gave a wholesome representation of the implication of Respondent's act at trial in the case of THE ADMIN. & EXEC. OF THE ESTATE OF ABACHA v. EKE-SPIFF & ORS. (2009) LPELR-3152(SC) (Pp , paras. C-D) where per OGBUAGU, JSC held thus: "... the Appellants rested their case on that of the Plaintiffs/Respondents. So, the evidence of the Respondents remained uncontroverted. It is now settled that the implication where a defendant rests his case on the plaintiffs case, it may mean that: (a) that the defendant is stating that the plaintiff, has not made out any case for the defendant to respond to; or (b) that he admits the facts of the case as stated by the plaintiff or (c) that he has a complete defence in answer to the plaintiffs case. See the cases of Akanbi v. Alao (1989) 3 NWLR (Pt. 108) 118; (1989) 5 SCNJ 1 and N.E.P.A. v. Olagunju & Anor. (2007) 3 NWLR (Pt. 913) 632 C-A. In the case of Aguocha v. Aguocha (2005) 1 NWLR (Pt. 906) 184 citing Akanbi v. Alao (supra), it is stated that a situation where a defendant failed/fails to lead evidence in defence, but rested his case on that of the plaintiff it is regarded as a legal strategy and not a mistake. If he succeeds, then it enhances his case, but if he fails, that is the end of his case. So it is in this instant case leading to this appeal. They failed woefully, in their strategy - i.e. not to testify or defend. Where a defendant offers no evidence n support of his pleadings, the evidence before the trial Court, obviously goes one way with no other set of facts or evidence weighing against it. There is nothing in such a situation, to put on the other side of the proverbial or imaginary scale of balance as against the evidence given by or on behalf of the plaintiff. The onus of proof in such a case, is naturally discharged on a minimal of proof." See: OKPOKO COMMUNITY BANK LTD. & ANOR v. IGWE (2012) LPELR-19943(CA); and MAKERA & v. GALADANCHI & ORS (2011) LPELR-8521 (CA).?The implication of the above is that a plaintiff may still fail in his quest to obtain relief from the Court even where the Defendant rests his case on that of the Plaintiff."Per TUKUR, J.C.A. (Pp , Paras. D-A) - read in context

6 JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court Lagos Division in Suit No. FHC/L/CP/1181/1999 delivered on 7th July, 2015 by Honourable Justice Saliu Saidu in favour of the Respondent. The material facts of the case culminating in this appeal are herein rendered thus: The Appellants acting on the belief that the Respondent had breached certain rights accruing to them as members of the Respondent Company filed an Amended Petition dated 10th July, 2012, and requisite accompanying documents, via which they sought the following reliefs: 1. An Order requiring the company to pay to the petitioners dividends due and payable on the shares held by each of them in the said company as at June, 1998; 2. An order that interest at the rate of 21% per annum from June 1998 till judgment is given and thereafter at the rate of 7% per annum till judgment debt is liquidated; and 3. For further or other directions as may be fair and just. 1

7 In response to the above, the Respondent filed an affidavit in Opposition to the Amended Petition dated 21st October, 1999 accompanied with other requisite processes. The Court duly heard the petition and in a judgment delivered on 7th July, 2015, held that the Petitioners have not been able to establish their case and dismissed the case. Dissatisfied with the judgment, the Appellant appealed to this Court via a Notice of Appeal dated 3rd September, 2015, and filed on 4th September, 2015 with five grounds of appeal. The Appellants' Brief of Argument settled by Olagbade Benson of Chief Rotimi Williams' Chambers, is dated 26th July 2016, and filed on 27th July, 2016, but deemed as properly filed on 23rd January, The Reply Brief is dated 19th January, 2018 and filed on 22nd January, 2018, but deemed as properly filed on 23rd January, Appellant s counsel formulated three issues from the five grounds, to wit: 1. Whether the trial Court was right when it held that the Board of Directors cannot fix dividends? 2. Whether learned trial Court was right when it 2

8 held that the Appellants have no right to claim dividends and their rights have been foreclosed by the execution of Exhibit AER Whether the Appellants as the petitioners at the trial Court proved their case to entitle them to judgment (Grounds 4 and 5). On the other hand, the Respondent's Brief settled by Collins N. Ogbonna, Esq. of Joseph Nwobike, SAN and Co. (Falcon Chambers), is dated 6th February, 2017 and filed on 10th February, 2017, but deemed as properly filed on 23rd January, Respondent's counsel adopted Appellant's three issues for determination. I therefore adopt the issues formulated by the Appellants and adopted by the Respondent as the issues for determination in this Appeal. ISSUE ONE: WHETHER THE TRIAL COURT WAS RIGHT WHEN IT HELD THAT THE BOARD OF DIRECTORS CANNOT FIX DIVIDENDS? (GROUND 1) Learned counsel for the Appellants argued that by the combined provisions of Section 379(1) and (2) of the Companies and Allied Matters Act, 1990, the directors had 3

9 the power to fix dividends and as such the lower Court was wrong to have held that the fixing of the dividends by the Board of Directors was ultra vires the aforementioned section. He relied on the following: Section 342(1)(b) of the Companies and Allied Matters Act 1990; Olakunle Orojo: "Company Law and Practice in Nigeria" Vol. 1 at page 378; and Halsbury's Laws of England 4th Edition, 1996 Reissue, Vol. 7(2), paras 1744, page On the other hand, learned counsel for the Respondent argued that the Appellants failed to establish at trial, their contention that the Board of Directors set dividends payable for the year in question of 60 kobo rather than the 30 kobo approved by the Respondent's General Meeting. He further stated that a look at the minutes of the meeting where the alleged price was fixed, that is Exhibit AER 2 would reveal that nothing of such nature was discussed therein, but the claims of the Appellants were based on a mere passing statement by the Managing Director, therefore the contentions of the Appellants on the point ought to fail. 4

10 He cited the cases of Okusami v. A-G, Lagos State (2015) 4 NWLR (Pt. 1449) 220 at 248; Akpan v. Union Bank of Nigeria Plc (2003) FWLR (Pt. 162) 1961 at 1984; and Re City Equitable Fire Insurance Co. Ltd (1925) Ch. 407 at Learned counsel also argued that upon a proper construction of the provisions of Sections 342(1)(a)(b) and 379 of C.A.M.A., it is only the company in a general meeting that can declare dividends, as all the Board of Directors can do is recommend the dividends, which the company may approve, and that the learned trial Judge was therefore right to hold that it is ultra vires the powers of the Respondent's Board of Directors to declare dividends. He relied on the following: Sasegbon's Nigerian Companies and Allied Matters Act, Law and Practice, 1st Edition, Volume 1, page 619; A.G.F. v. Ijewere (1986) 4 NWLR (Pt. 37) 659 at 668; and Olakunle Orojo: "Company Law and Practice in Nigeria" 5th Edition, Page 326. In the reply brief, learned counsel for the Appellants invited 5

11 this Court to give the correct interpretation to Section 379 of C.A.M.A., specifically Section 379(2) which provides that the Directors have power to fix dividends and that the cases cited by the Respondent to the effect that the Appellants did not prove the fixing of 60 kobo dividends ought to be disregarded by this Court as this issue borders on a simple question of law. RESOLUTION It is elementary law that the two main organs by which the company acts are the General Meeting and the Board of Directors. It is also trite that powers and functions of these two organs can be ascertained by a study of the provisions of the Companies and Allied Matters Act Cap C35, LFN 2004, which has made copious provisions streamlining the said functions and the Memorandum and Articles of Association of the Company. See: Section 63(1) C.A.M.A.; and S.T.B. Ltd. v. Interdrill Nig. Ltd. (2007) ALL FWLR (Pt. 366) 757 at 771 paras. C-F (CA). I agree with learned counsel that with regards to the facts of this appeal, an examination and proper construction of 6

12 the relevant provisions of C.A.M.A. is apposite. Section 379 which makes provisions on dividends is herein reproduced thus: (1) A company may, in general meeting, declare dividends in respect of any year or other period only on the recommendation of the directors. (2) The company may from time to time pay to the members such interim dividends as appear to the directors to be justified by the profits of the company. (3) The general meeting shall have power to decrease the amount of dividend recommended by the directors, but shall have no power to increase the recommended amount. (4) Where the recommendation of the directors of a company with respect to the declaration of a dividend is varied in accordance with Subsection (3) of this section by the company in general meeting, a statement to that effect shall be included in the relevant annual return. (5) Subject to the provisions of this Decree, dividends shall be payable to the shareholders only out of the distributable profits of the company. A calm examination of the above leads to the inevitable 7

13 conclusion that it is the company in a general meeting that has the power to decide whether dividends should be paid for a certain year. What the Directors do is fix an amount they feel is appropriate plus the scheme for payment, without the declaration by the General Meeting, any such dividend fixed by the Directors will however remain inchoate. See: A-G, OF FEDERATION v. A-G, OF LAGOS STATE (2013) LPELR-20974(SC); SHERIFF & ANOR v. P.D.P. 4 ORS (2017) LPELR-41805(CA); and OLALERE v. OYE & ANOR (2017) LPELR-43262(CA). The above is reinforced by Section 214 of CAMA, which provides that the declaration of dividend is part of the ordinary business of the general meeting of a company. It is the duty of directors of a Company to exercise powers vested in them for the benefit of the company. Their fiduciary relationship is not for individual advantage but for the company. The directors of the company herein do not have the power to usurp the role of the company in general meeting on declaration of dividends. The only time when directors may be allowed to step into the shoes of 8

14 the company in respect of roles prescribed for the company under the enabling statute wherein, it is registered is where the members of the board of directors are also the only shareholders of the company and even then their actions should not involve fraud. See: Okeowo & Ors v. Migliore & Ors (1979) LPELR 2441 (SC). That however is not the case with regard to the instant case. In light of the above, this issue is resolved in favour of the Respondent. ISSUE TWO: WHETHER LEARNED TRIAL COURT WAS RIGHT WHEN IT HELD THAT THE APPELLANTS HAVE NO RIGHT TO CLAIM DIVIDENDS AND THEIR RIGHTS HAVE BEEN FORECLOSED BY THE EXECUTION OF EXHIBIT AER4. (GROUNDS 2 AND 3) Learned counsel for the Appellant argued that the learned trial Judge was wrong to have held that the petitioners were not entitled to dividends which had accrued prior to the transfer of their shares as at 30th July, 1998, when the Respondent's financial year ended. Learned counsel also argued that the lower Court was wrong to have held that the execution of Exhibit AER4 had 9

15 extinguished the rights of the Appellants to the accrued dividends on the shores, as the import of the clause: "free from all claims or encumbrances" in Exhibit AER4, was that the purchaser was protected from liabilities arising there from, and not a vesting of the rights to earn dividends which had accrued on the shares to the benefit of the petitioners before they were sold. Counsel then submitted that since by the operation of law based on the legal definition of a member of a company (to the effect that it is the person whose name is on the register of members that is properly regarded as a member), the Appellants are liable for calls if any to be made on the transferred shores, it would be inequitable for them to be denied the benefits of the dividends of the shares. He relied on the following: Sparks Electrics (Nig.) Limited and Anor v. Samuel Babatunde Ponmile (1986) 2 NWLR (Pt. 23) Pg. 516 at 523 par B; Societe Generale De Paris v. Walker (1885) 11 AC 29 at 28; and Chase National Executors and Trustees Corporation v. Fry (1946) 2 All Er 106 at

16 Counsel then submitted that the fact that the Respondent failed to produce the Register of Members when it was asked to do so supports Appellants' assertion that the Appellants' names were still on the Register of Members as of the time dividends accrued on the shares in question. He relied on Section 167(d) of the Evidence Act. On the other hand, learned counsel for the Respondent argued that by the combined effect of clauses 1.6, 2.1 and 5.2 of the sale of shares agreement (Exhibit AER4), the Appellants had by the sale of their shares, severed all connections with the Respondent and relinquished all claims arising from the sold shares and both the parties and the Court ought to be bound by the agreement. He cited the case of Babatunde v. B.O.N. Ltd (2011) 18 NWLR (Pt. 1279) 738 at 761. Learned counsel also argued that right to recover dividends only accrue after dividends have been declared by a company, thus the dividends in question in this appeal, accrued in October, 1998, despite the fact that the dividends arose from the financial year which ended on 30th June,

17 He relied on the following: Section 385 of C.A.M.A.; Olakunle Orojo: "Company Law and Practice in Nigeria" 5th Edition, page 326; Sasegbon s Nigerian Companies and Allied Matters Act, Law and Practice, 1st Edition, Volume 1, page 619; and Bond v. Barrow Haematite Steel Co. (1902) 1 ch Learned counsel then argued that contrary to the arguments of the Appellants, the law is that a purchaser of shares is entitled to any and all dividends declared after the contract of sale of shares is executed, and that since the Appellants sold their shares on 24th September, 1998 before October, 1998 when the dividends accrued, being the date the dividend was declared in a general meeting, the rightful beneficiary of the dividends in question is Fidelity Staff Trust, who was the holder of the shares as of the time the dividends were declared. He relied on the following cases Re Winbush (1940) Ch. 92: Godfrey Philips Ltd v. The Investment Trust Corporation LD (1953) 1 Ch. 449 at ; Halsbury Laws of England (4th Edition) Vol. 7(1) 12

18 paragraph 730 at page 539; Palmers Company Law, Vol. 1 (24th Edition) page 1101 paragraphs 77-11; and Olakunle Orojo: "Company Law and Practice in Nigeria" 5th Edition, page 327. He then submitted that the burden to prove that the names of the Appellants were still in the Register of Members of the Respondent, rests on the Appellants based on the law of evidence. He relied on Sections 131(1)(2), 132 and 133(1) of the Evidence Act, In the reply brief, learned counsel for the Appellants submitted that the dividends arose from claims which existed before the execution of Exhibit AER4; that Exhibit AER4 was not meant to have retroactive effect; and that the conclusion the lower Court ought to have reached when the Respondent withheld the Register of its Member's as of the date when the dividends were declared, was that they did so because the Appellants were the registered members on the date the dividends were declared. He cited the cases of Joel Adamu v. The State (2017) LPELR-41436(SC); and Onwujuba v. Obienu (1991) 4 NWLR (Pt.183). 13

19 RESOLUTION The first port of call in the determination of this issue requires firstly, the resolution of the question: when does dividend accrue? That is, when does it come into legal existence as a debt owed by the company to its shareholders? Section 385 of CAMA, provides an apt answer to the above question when it provides that "Dividends shall be special debts due to, and recoverable by, shareholders within 12 years, and actionable only when declared". What this means in relation to this appeal, is that dividends accrue when they are declared and the dividends in question here accrued on October, It is not a subject for dispute that as of October 1998 when the said dividend were declared the Appellant had already through the instrumentality of the execution of Exhibit AER4 have divested their interest in the company. In clause 2.1 of Exhibit AER4 the sale of shares agreement the purchase of the shares was covenanted to be, "free from all claims or in cumbrances" while in clause 1.6 of the agreement the Appellants as vendors covenanted thus: 14

20 "1.6 Unfortunate differences having arisen between the Vendors in their capacity as shareholders of the Bank, on the one hand, and some other members of the Bank, on the other hand, the Vendors have decided to severe their connection with the Bank and all parties concerned have agreed that the Vendors may sell and transfer their shares in the Bank to the purchaser and thus severe their connection with the Bank." I agree with learned counsel for the Respondent that a proper construction of the Written Agreement of the parties shows clearly the intention of the parties to the effect that the Appellants have given up all claims and interests in relation to the shares under reference. The operative words in the agreement are 'severe' "claims" or "incumbrances which all when given a community reading leads to no other conclusion than that the Appellants have divested all claims and interests relating to the shares sold and by extension cut off all relationship with the company. The feeble attempt made by the Appellants to construct the words used in the agreement outside 15

21 their context do not impress me, as the law is trite that in construing documents and other Written Agreements, it is mandatory that the whole passage or document and every part of it should be taken into account, and the terms and conditions must be read and interpreted within their context. See: NIGERIAN ARMY v. AMINUN-KANO (2010) LPELR 2013 (SC); ROSENJE v. BAKARE (1973) LPELR-2954 (SC). Appellant's have asserted that their names were still on the Register of Members and that by virtue of Section 167(d) of the Evidence Act, 2011, the failure of the Respondent to produce the Register of Members ought to be interpreted as supporting Appellant's position. While it is true that Section 167(d) with regards to presumption of facts provides that the Court may presume that evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it, that is not enough to show that the names of the Appellants were still in the Register of Members. It is elementary law that the burden of establishing facts 16

22 upon which legal rights and liabilities depends in line with the Provisions of Section 131 and 132 of the Evidence Act 2011 is on the person who asserts those facts. The Appellants having claimed to still be members the Respondent have the legal obligation of satisfying the Court that those facts are true. See: Nweke v. State 2017 LPLER (SC); Okoye v. Nwankwo (2014) LPELR (SC); KAJO v. BENUE CEMENT CO. PLC (2013) LPELR (CA). I need further point out that the Appellants can only succeed on the strength of their case and certainly not on the perceived weakness in the defence. See: OKOYE & ORS v. NWANKWO (SUPRA). I agree with the learned trial Judge that no evidence was forthcoming from the Appellants to establish their membership of the Respondent at the relevant period. In the result the issue is resolved in favour of the Respondent. ISSUE THREE: WHETHER THE APPELLANTS AS THE PETITIONERS AT THE TRIAL COURT PROVED THEIR CASE TO ENTITLE THEM TO JUDGEMENT (GROUNDS 4 AND 5) 17

23 Learned counsel for the Appellants argued that since the Respondent did not controvert the major facts upon which the petition of the Appellants of trial was based, neither did it offer any evidence as it failed to adopt its counter affidavit but chose to rely solely on the evidence tendered by the Appellants, the trial Court ought to rely on the uncontroverted evidence of the Appellants. He relied on the cases of Matanmi v. Dada (2013) 7 NWLR (Pt. 1353) 319; and Ajayi v. Total (Nig.) Plc (2013) 15 NWLR (Pt. 1375) 443. Learned counsel then submitted that flowing from the above, the judgment of the trial Court could be regarded as perverse and against the weight of judgment. He cited the case of Ladunni v. Wema Bank Ltd (2011) 4 NWLR (Pt. 1236). On the other hand, learned counsel for the Respondent argued that contrary to the arguments of the Appellants, the Respondent duly denied the claims of the Appellants at trial, and filed counter affidavits in response to the Appellants' petition. 18

24 Learned counsel also argued that there was a difference between failure to deny pleadings and failure to call witnesses and that the refusal of the Respondent to call witness of trial was legally permissible as it was premised on its belief that the Appellants had failed to discharge the burden of proof placed upon it. He cited the case of Olohunde & Anor v. Adeyoju (2000) 10 NWLR (Pt.676) 562 at 599; and Bello v. Sanda (2012) 1 NWLR (Pt. 1281) 219 at 257. Counsel then submitted that from the circumstances of the case at trial and the rules of evidence, particularly the ones touching on burden of proof, the learned trial Judge was right to have reached the conclusion that the Appellants had failed to prove their case. He relied on the following: Ebo v. Anadi (2012) 8 NWLR (Pt. 1301) 69 at 91; Arabambi v. Advance Beverages Ind. Ltd (2005) 19 NWLR (Pt. 959) 1 at 28; M. F. Kent West Africa Ltd v. Martchem Industry Nigeria Ltd (2000) 8 NWLR (Pt. 669) 459 at 479; and Ayoola v. Yahaya (2005) 7 NWLR (Pt. 923) 122 at

25 In the reply brief learned counsel for the Appellants submitted that the Respondent abandoned their pleadings by their failure to lead any evidence in support thereof; that pleadings cannot substitute evidence; and that the cases cited by the Respondent are not on all fours with this appeal. He cited the cases of Oluyede v. Access Bank Plc (2015) 17 NWLR (Pt. 1489) 596 at ; and Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 at 280, par D. RESOLUTION The correct principle of law with regards to uncontroverted evidence is that same can be regarded as admission by the other party and validly acted upon by the Court. See: INTERDRILL (NIG.) LTD & ANOR v. U.B.A. PLC (2017) LPELR (SC), Pp , Paras. F. LAU v. P.D.P. & ORS (2017) LPELR-42800(SC); MUSA & ANOR v. IBRAHIM (2017) LPELR (CA); and U.B.A. PLC v. PATKAN VENTURES LTD (2017) LPELR-42392(CA). Notwithstanding the above, the fact that a Defendant/Respondent in a trial refuses to call 20

26 any witness or chooses to rest his case of trial does not automatically translate to the fact that judgment must be entered in favour of the Plaintiff/Claimant/Petitioner. The Supreme Court gave a wholesome representation of the implication of Respondent's act at trial in the case of THE ADMIN. & EXEC. OF THE ESTATE OF ABACHA v. EKE-SPIFF & ORS. (2009) LPELR-3152(SC) (Pp , paras. C-D) where per OGBUAGU, JSC held thus: " the Appellants rested their case on that of the Plaintiffs/Respondents. So, the evidence of the Respondents remained uncontroverted. It is now settled that the implication where a defendant rests his case on the plaintiffs case, it may mean that: (a) that the defendant is stating that the plaintiff, has not made out any case for the defendant to respond to; or (b) that he admits the facts of the case as stated by the plaintiff or (c) that he has a complete defence in answer to the plaintiffs case. See the cases of Akanbi v. Alao (1989) 3 NWLR (Pt. 108) 118; (1989) 5 SCNJ 1 and N.E.P.A. v. Olagunju & Anor. (2005) 3 NWLR (Pt. 913) 632 C-A. In the case of Aguocha v. Aguocha 21

27 (2005) 1 NWLR (Pt. 906) 184 citing Akanbi v. Alao (supra), it is stated that a situation where a defendant failed/fails to lead evidence in defence, but rested his case on that of the plaintiff it is regarded as a legal strategy and not a mistake. If he succeeds, then it enhances his case, but if he fails, that is the end of his case. So it is in this instant case leading to this appeal. They failed woefully, in their strategy - i.e. not to testify or defend. Where a defendant offers no evidence n support of his pleadings, the evidence before the trial Court, obviously goes one way with no other set of facts or evidence weighing against it. There is nothing in such a situation, to put on the other side of the proverbial or imaginary scale of balance as against the evidence given by or on behalf of the plaintiff. The onus of proof in such a case, is naturally discharged on a minimal of proof." See: OKPOKO COMMUNITY BANK LTD. & ANOR v. IGWE (2012) LPELR-19943(CA); and MAKERA & v. GALADANCHI & ORS (2011) LPELR-8521 (CA). The implication of the above is that a plaintiff may 22

28 still fail in his quest to obtain relief from the Court even where the Defendant rests his case on that of the Plaintiff. It is correct as gleaned from the records and the judgment of the lower Court that the Respondent did not call any witness but seek to rely on the petitioners evidence to assert that by Exhibit AER4 the Appellants had sold and effectively transferred all their interests in the shares under reference. The issues before the lower Court revolves around the following questions, which were set out by the learned trial Judge in his judgment at page 790 of the record thus:- 1. What is the effect of the petitioner affidavit in view of the failure to challenge averments therein and the affidavit in support and the refusal of the Respondent to call witness(s) in support of their case. 2. Whether the Respondent has right to dividend as claimed in their petition before the Court. 3. Whether the petitioner have been able to prove their case before the Court to entitled them to the relief sought. The learned trial Judge upon a detailed review of the available 23

29 evidence resolved the issues against the Appellants herein and dismissed their case. I have considered the evidence placed before the learned trial Judge vis-à-vis the law on the question and I find myself unable to disturb the findings and conclusion of the lower Court. The question whether the Appellants herein are entitled to the dividends in view of the clear terms contained in the sale agreement in exhibit AER4 had been resolved under issue two. Suffice it to add that I agree with the learned trial Judge that with the execution of exhibit AER4 the Appellants have effectively divested their interest in the shares and whatever dividends that may flow from same. The lower Court was also right in my view in holding that the failure of the Respondent to call witness (s) is not fatal to the defence where as in this case the defence relied on the evidence adduced by the Appellant to established it's case. I had earlier in the course of this judgment drawn attention to the decision of the Supreme Court on the question in 24

30 the Admin & Exec. of the Estate of ABACHA v. EKE-SPIFF & ORS (Supra). I need only further emphasize that failure to call witnesses does not necessarily translate to no evidence in support of pleadings as failure to call witnesses is not the same as failure to place evidence before the Court. Evidence elicited from a plaintiffs witness under cross-examination forms part of the case of the defendant. The law allows a party to rely on evidence he elicits by cross-examination of his opponent's witnesses as long as the evidence is in respect of facts which he pleaded. See: UCHIV & ANOR v. SABO & ORS (2015) LPELR (CA). Adverting my mind to the evidence before the lower Court I am of the firm view that the findings of the lower Court was in accord with the evidence before it. The invitation of the Appellants to this Court to set aside the decision of the lower Court do not find favour with me as there is in my view nothing perverse about the said findings. The power of this Court to reverse the findings of fact of a trial Court can only be invoked where the finding of fact made by the 25

31 trial Court is not supported by evidence. See: UNION v. OZIGI (1994) LPELR-3389 (SC), ADEKEYE & ORS v. ADESINA & ORS (2010) LPELR-103 (SC). In the light of all I said earlier I resolved this issue in favour of the Respondent. The end result of all these discourse is that the appeal fails and it is hereby dismissed. The judgment of the lower Court delivered on 7th July, 2015 in Suit No: FHC/L/CP/1181/1999 is hereby affirmed. There shall be costs of Two Hundred Thousand Naira (N200,000.00) in favour of the Respondent against the Appellants. TIJJANI ABUBAKAR, J.C.A.: My Lord and learned brother TUKUR, J.C.A. granted me the privilege of reading in draft the leading Judgment just delivered. I am in agreement with the reasoning and conclusion and therefore join in holding that the Appellant's appeal is devoid of merit and deserves to be and is hereby dismissed by me. I abide by the consequential orders made including order on copsts. 26

32 BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother JAMILU YAMMAMA TUKUR, J.C.A. just delivered with which I agree and adopt as mine. I have nothing more to add. 27

33 Appearances: Olagbade Besen with him, O. F. Ojo For Appellant(s) Dr. Joseph Nwobike SAN with him, Uchechi Regaodu For Respondent(s)