LEGAL PRINCIPLE: CIVIL PROCEDURE — Capacity to Sue — Incorporated Company — Failure to Produce Certificate of Incorporation Fatal to Case
PRINCIPLE STATEMENT
When an issue is joined on pleadings, the party bearing the burden must adduce satisfactory evidence; failure to produce a certificate of incorporation when the company's existence is challenged is fatal.
RATIO DECIDENDI (SOURCE)
Per Uwaifo, JSC, in African Continental Bank Plc & Anor v. Emostrade Ltd (2002) NLC-951998(SC) at p. 5; Paras D–E.
"It is a fundamental procedural requirement that when issues are joined on the pleadings, evidence is needed to prove them. It is the person upon whom the burden of establishing that issue lies that must adduce satisfactory evidence. When there is no such evidence, the issue must be resolved against him and the consequences of that are as decisive of the case presented as the materiality of that issue."
EXPLANATION / SCOPE
The burden of proving a company’s legal existence lies on the company when challenged. Failure to produce the certificate of incorporation is fatal. The company cannot rely on mere assertions. The court cannot assume incorporation. The principle applies even if the company’s name appears on documents. The certificate of incorporation is conclusive evidence of incorporation. The party challenging capacity need only raise the issue; the company must prove its existence. The court will strike out the action if incorporation is not proved. The rule ensures that only legally recognised entities have access to court. The principle prevents unincorporated associations from litigating as companies.
