NICON INSURANCE LTD & ANOR v. BUREAU OF PUBLIC ENTERPRISES & ANOR (2020)

NICON INSURANCE LTD & ANOR v. BUREAU OF PUBLIC ENTERPRISES & ANOR

(2020)LCN/14251(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, June 05, 2020

CA/A/599/2016

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. NICON INSURANCE LIMITED 2. ASSURANCE ACQUISITION LIMITED APPELANT(S)

And

1. BUREAU OF PUBLIC ENTERPRISES 2. HON. ATTORNEY GENERAL OF THE FEDERATION RESPONDENT(S)

RATIO

WHETHER OR NOT PARTIES CAN UNILATERALLY ABANDON OR REGARD AS BAD, TERMS OF AN AGREEMENT THEY VOLUNTARILY EXECUTED

This is because parties are bound by the terms of the agreement they voluntarily entered into. Parties cannot be heard to unilaterally abandon or regard as bad, terms of an agreement they voluntarily executed.
In the case of ATLAS PETROLEUM INTERNATIONAL VS. P. M. COMMUNICATIONS (2017) LPELR – 41957 (CA) it was held per Georgewill, JCA that:
“…in law parties are bound by the terms of their contract and would not except in proved cases of misrepresentation or duress or fraud or other vitiating factors be allowed to resile from the terms of contract voluntarily entered into by them. It is indeed a mark of honor and integrity that those who voluntarily enter into agreement are held bound to the terms of their agreement. See JFS Investment Ltd v. Brawal Line Ltd & Ors (2010) 12 SC (Pt. 1)110 @pp. 161 – 162, where his lordship, Rhodes-Vivour JSC had emphatically pronounced succinctly inter alia thus: “This is premised on the reasoning that where the terms of the contract are dear and unambiguous the duty of the Court is to give effect to them and on no account rewrite the contract of the parties. In the absence of fraud, duress, misrepresentation, the parties are bound by the terms of the contract they freely entered into.” See also A. G. Rivers State V. A. G. Akwa Ibom & Anor (2011) 3 SC 1; 1. Mobil Producing Nig. UnLtd V. Umenweke (2002) 9 NWLR (Pt. 731) 543; Total Nig. Plc V. Morkah (2002) 9 NWLR (pt. 773) 492.” (Pp. 32-33, Paras. D – C). PER IDRIS, J.C.A.

WHETHER OR NOT A COMPANY IS A SEPARATE LEGAL ENTITY FROM ITS DIRECTORS AND SHAREHOLDERS

A company is a separate legal entity from its directors and shareholders and it has perpetual succession. Thus, in the case of NEW RESOURCES INT’L LTD & ANOR VS. ORANUSI (2010) LPELR – 4592 (CA) it was held that:
“Since the decision of the House of Lords in 1897 in the much celebrated case of Salomon v. Salomon and Company Ltd (1897) AC 22, it established firmly the concept of corporate personality which means that once a company is incorporated under the relevant laws, it becomes a separate person from the individuals who are its members. It has capacity to enjoy legal rights and is subjected to legal duties which do not coincide with that of its members. Such a company is said to have legal personality and is always referred to as an “artificial person”. This being the case, it can sue and be sued in its own name. It may own property in its own right and its assets, liabilities, rights and obligations are distinct from that of its members. It follows that a registered company has perpetual succession. Thus, a change in membership or death of a member does not affect the existence of the company. It acquires its capital from its members through the sale of shares and invariably distributes the profits in form of dividends made from the utilization of the capital to its members. See Modern Nigerian Company Law (2nd Edition) by M. O. Sofowora Esq.” Per John Inyang Okoro, J.C.A (Pp. 22 – 23, paras. G – E). PER IDRIS, J.C.A

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By an Originating Summons filed on the 17th of October, 2012 before the Federal High Court, sitting in Abuja, the Appellants who were Plaintiffs at the trial Court sought for the determination of the following questions and sought the reliefs set out hereunder:
1. WHETHER with the privatization of the 1st Plaintiff under the Public Enterprises Privatization and Commercialization Act from a public enterprise into a private sector enterprise, the Defendants are entitled to continue to monitor or control the activities of the 1st Plaintiff.
2. WHETHER if the defendants are so entitled, which is not conceded, the defendants are entitled under the guise to compel the 1st Plaintiff to surrender to the demand by the House of Representatives Committee on Privatization and commercialization to carry out oversight functions in the 1st Plaintiff.
3. WHETHER the defendants are entitled to interfere with or revoke the sale of the 1st Plaintiff to the 2nd Plaintiff.

RELIEFS SOUGHT
i. DECLARATION that with the privatization exercise conducted by the Government of Nigeria through the 1st

Defendant, under which the 1st Plaintiff was sold to the 2nd Plaintiff as core investor, which transaction changed the status of the 1st Plaintiff from a public- owned enterprise into a private-owned enterprise, the defendants are not entitled to continue to monitor or control the activities of the 1st Plaintiff.
ii. DECLARATION that the defendants are not entitled to compel the 1st Plaintiff to surrender to the demand by the House of Representatives Committee on Privatization and Commercialization to carry out oversight functions in the 1st Plaintiff.
iii. DECLARATION that the defendants are not entitled to interfere with or revoke the sale of the 1st Plaintiff to the core investor, the 2nd Plaintiff.
iv. INJUNCTION restraining the defendants by themselves, their agents, servants, and/or privies and/or any functionary of the Government of Nigeria, or otherwise howsoever from taking any steps or further steps or doing anything to the prejudice, harassment or embarrassment of the Plaintiffs pursuant to or further to the threat contained in the 1st Defendant’s letter dated 4th October, 2012 to terminate the sale of the 1st defendant’s

letter dated 4th October, 2012 to terminate the sale of the 1st Plaintiff to the 2nd Plaintiff.

It is the Appellants’ case that the first Appellant was a public enterprise owned by the Federal government of Nigeria under the name NICON INSURANCE PLC. However, it became a private limited company in December, 2005. Also, it was averred that in December, 2005, the Government of Nigeria represented by the 1st Respondent through a Share Purchase Agreement sold the 1st Appellant (then a PLC) to the 2nd Appellant.

Under the said agreement, it was agreed that the 1st Respondent will be entitled within five years following the sale of the 1st Appellant to the 2nd Appellant to give its consent if the shares of the 1st Appellant are to be sold. The Appellants further deposed to the fact that by a letter dated 19th September, 2012, the House of Representatives Committee on Privatization and Commercialization wrote to notify the 1st Appellant of its intention to visit the 1st Appellant to assess Post privatization performance of the company.

In response to the letter, the 1st Appellant stated that the proposed visit would be unconstitutional as the

1st Appellant is now a private concern and cannot be subject to the oversight functions of the House of Representatives. The said visit never happened.

However, the 1st Respondent sent a letter to the 1st Appellant, stating that in view of its refusal to allow the 1st Respondent to monitor the extent of compliance with the obligations contained in the Post Acquisition Plan of the agreement for the sale of the 1st Appellant, it would terminate the sales agreement within 7 days except the 1st Plaintiff yielded to monitoring.

It was then argued by the Appellants that the Respondents are not entitled to terminate the sale of the 1st Appellant to the 2nd Appellant and it was believed that it was the House of Representatives using the 1st Respondent to compel the Appellants to submit to oversight functions of the committee.

Finally, it was submitted that the 1st Appellant is not subject to the oversight functions of the House of Representatives or any monitoring by the 1st Respondent as the Appellants have the right to change the whole structure of the 1st Appellant after the initial five years of the sale of the 1st Appellant which expired

December, 2010. The Appellants also filed a Motion on Notice, restraining the Respondents from terminating the sale of the 1st Appellant to the 2nd Appellant.

The 1st Respondent filed its counter affidavit in opposition to the Plaintiff’s originating motion, stating that the 1st Appellant was one of the assets prepared for privatization and by the Strategic core investor sale, the 2nd Appellant emerged the preferred bidder and acquired 70% of the Federal Government Shareholding in the 1st Appellant and the 2nd Appellant is not the sole owner of all the shares in the 1st Appellant.

It was further argued by the 1st Respondent that the Federal Government still holds 30% of the shares in the 1st Appellant. It was then stated that the Appellants and the 1st Respondent executed a Share Sale and Purchase agreement and the 2nd Appellant undertook to carry out certain obligations specified in the Post acquisition Plan and they are yet to do same.

The 1st Respondent also stated that by virtue of paragraph 8.3 of the Share Sale and purchase agreement, the 1st Respondent or its agents is empowered to perform oversight function on the activities of the

Plaintiff by undertaking biennial monitoring of the 1st Appellant to ensure compliance with the Post Acquisition Plan which the Appellants have refused to allow it.

In delivering judgment on the 13th of March, 2016, the trial judge stated that by the specific clauses in the shares sale and purchase agreement, the Plaintiffs have failed to establish any legal right that the 1st Respondent breached by its letters. It was also held that the 1st Respondent had the powers under law to perform oversight functions over the 1st Appellant. The Appellants suit was dismissed accordingly.

Dissatisfied with the judgment of the trial Court, the Appellants filed a Notice of Appeal dated the 5th of September,2016, consisting of two grounds of appeal.

The Appellants filed their brief of argument on the 2nd of December, 2016 and it was settled by Akinsola Olujinmi Esq. In the said brief four issues was distilled for determination thus:
1. Whether on the facts of this case and a proper consideration of Section 88(2)(a),(b) of the 1999 Constitution and Clause 8.3 of the Share Sale and Purchase agreement, Exhibit NICON 1, the learned trial judge was right in

holding that the National Assembly could carry out oversight functions on the 1st Appellant which is a private company. (Distilled from Grounds 2 of the Notice of Appeal.)
2. Whether having regards to the fact that the 1st Appellant is a private company to which the provisions of the Companies and Allied Matters Act apply, the learned trial judge was right in holding that it was within the statutory functions of the 1st Respondent to monitor the affairs of the 1st Appellant. (Distilled from Grounds 3 of the Notice of Appeal.)
3. Whether in the light of the materials before the Court, the learned trial judge was right in holding there was no specific provision by which the obligation created in Clause 8.3 of Exhibit NICON 1 was limited to 5 years post acquisition date of the 1st Appellant. (Distilled from Grounds 1 of the Notice of Appeal.)
4. Whether having regards to the materials in the record and the relevant law, the trial Court was right in dismissing the Appellant’s claims. (Distilled from Grounds 4 of the Notice of Appeal.)

On issue one and two, the Appellants’ counsel have argued that the trial judge was wrong to have

held that the 1st Appellant was still a public enterprise subject to the control of the Government because of the 30% equity shares which the Federal Government still held in the 1st Appellant after the privatization exercise.

It was argued by Appellants’ counsel that it is clear that from Exhibit NICON 2 that the 1st Appellant is a private limited company with a distinct and separate personality from its shareholders. It was then submitted that the fact that the Federal Government of Nigeria holds 30% equity shares in the 1st Appellant does not make it an agent of the Federal Government and does not make it subject to the control of the Federal Government.

It was then argued that the fact the Federal Government of Nigeria retains 30% equity shareholdings in the 1st Appellant does not change its status from a private limited liability company whose affairs and activities are regulated and governed by the operations of the Companies and Allied Matters Act and its Memorandum and articles of Association to that of a public one. Reference was made to NIDB VS. FEMBOL NIG LTD (1997) 2 NWLR (PT. 489) PAGE 543.

It was then submitted that the

obligation created in Clause 8.3 of the Share Sale and Purchase agreement (Exhibit NICON 1 or TAI 1) to monitor and control the affairs and activities of the 1st Appellant by the 1st Respondent cannot override the operation of the Companies and Allied Matters Act particularly Section 624 and 625 of CAMA.
It was further submitted that clause 8.3 of NICON 1 cannot override the operation of the provision of Section 299 to 303 of CAMA which allows a company to sue or its shareholders to bring minority right action on behalf of the company. Thus, the obligation created under Clause 8.3 of the said agreement is unenforceable and void.

The Appellants’ counsel also stated that the trial Court misunderstood the intendment of Section 88(a),(b) of the 1999 Constitution when it held that the Government through the National Assembly will be able to conduct oversight function by virtue of Section 88(2)(a) and (b) of the Constitution on the 1st Appellant as long as the Federal Government has 30% equity shares in the 1st Appellant.

It was then stated that the power to carry out oversight function by the National assembly under Section 88(2)(a),(b) of the 1999 Constitution

does not extend to or cover the affairs and the activities of a privatized company.

On issue three, the Appellants referred to the provisions of Clause 8.2, 8.3, and 8.11 of the Shares Sale and Purchase agreement. It was argued that the trial Court did not consider the provision of Clause 8.2 of the Shares Sale and Purchase Agreement before arriving at its decision that he was unable to see any specific provision by which the obligation created in Clause 8.3 is limited to five years post acquisition date of the 1st Appellant.

It was submitted that clause 8.2 of the agreement is specific on the limitation of 5 years for the monitoring and control of the affairs of the 1st Appellant by the 1st Respondent. This Court was urged to resolve this issue in favour of the Appellants.

On issue four, the Appellants counsel has argued that the trial Court failed to give proper consideration to the materials in the record and the relevant laws. The Appellants have argued that the trial Court failed to consider the provisions of the Clause 8.3 of the agreement vis a vis Section 625 of CAMA led to an erroneous holding.

It was submitted that the provision of Section 625 of CAMA

which gives overriding effect to the operation of the provisions of CAMA over anything contrary contained in the memorandum or articles of association executed by the company or any resolution of the company in general meeting or its board of directors was not considered by the trial judge before reaching its conclusion. It was then argued that having regards to the overriding effect of Section 625 of CAMA, Clause 8.3 of the agreement is rendered unenforceable and void.

It was also submitted that by virtue of Section 13 and 14 of the Public Enterprises (Privatization and Commercialization) Act 2004, the 1st Respondent does not have the statutory power to monitor a privatized company but it can only monitor a commercialized enterprise. These provisions of the Act were not considered by the trial Court, thus, amounting to breach of fair hearing and injustice to the Appellants.

The 1st Respondent filed its brief of argument on the 27th of August, 2017 and it was settled by Abimbola Kayode Esq. One issue for determination was distilled:
Whether the learned trial judge rightly or wrongly dismissed the

Appellant’s case.

The 1st Respondent’s counsel has argued that the issue of post privatization monitoring of the 1st Appellant by the 1st Respondent being ultra vires the power of the 1st Respondent was not one of the issues argued before the trial Court. Thus, it is trite law that parties cannot raise fresh issues without seeking and obtaining leave. This Court was urged to ignore the arguments of the Appellants on this issue.

Assuming without conceding their position is not agreed with by this Court, the 1st Respondent’s counsel has argued that it acted within its powers under its enabling law and in accordance with the agreement (Exhibit NICON 1) by virtue of Section 4, 13(e) and 16(b) of the Public Enterprises (Privatisation and Commercialization) Act.
It was also submitted that 70% of the Federal Government Shares was sold to the 2nd Appellant on the strength of post privatization plan which the 2nd Appellant submitted to the 1st Respondent which was incorporated in Exhibits NICON 1 which was executed by the Appellants. It was then argued that based on sanctity of contracts, the Appellants are estopped from challenging the

post privatization monitoring which they had agreed to.

The 1st Respondent’s counsel also argued that the Appellants made contradictory submissions by first saying that the 1st Respondent acted ultra vires because it lacked post privatization power to monitor or regulate affairs of the 1st Appellant under its enabling law; and later, by saying that the 1st Respondent’s post privatization power of the 1st Appellant is limited to 5 years from the date of acquisition of shares of Federal Government in the 1st Appellant.

The 1st Respondent’s counsel further submitted that the Appellants case was fully considered by the trial Court as against the argument of the Appellants.

The Appellants filed their Reply brief of argument on the 6th of November, 2017 and it was settled by Akinsola Olujinmi Esq.

On reply on points of law, the Appellants’ counsel have argued that the issue of post privatization monitoring of the 1st Appellant by the 1st Respondent being ultra vires the power of the 1st Respondent referred to as a fresh issue by the 1st Respondent in paragraph 4.3 is not one of the issues formulated for determination

before this Court but a submission in support of issue 2 formulated for determination by the Appellants. It was submitted that a party can rely upon any new line of argument, authorities; judicial or statutory to support his argument in issue which is properly before the Court. It was submitted that reliance placed on Section 13 of the Public Enterprises (Privatization and Commercialization) Act to submit that the 1st Respondent does not have the power to monitor and control the activities of the 1st Appellant is not a new issue but a submission in line with the second issue for determination.

The Appellants’ counsel also argued that the Appellants did not make contradictory submissions but only argued their case in line with the issues before the Court.

The Appellants’ counsel further argued that having regards to the provisions of Section 624 and 625 which gives the provision of CAMA overriding force notwithstanding anything contained in any agreement entered into by the parties.

JUDGMENT
Having read and digested the arguments contained in the respective briefs filed by counsel, I totally understand the crux of the appeal and

I will go ahead and determine same. For the purpose of clarity and to thoroughly dispose of same, I hereby raise two issues for determination thus:
1. Whether on the facts of this case and a proper consideration of Section 88(2)(a),(b) of the 1999 Constitution and Clause 8.3 of the Share Sale and Purchase agreement, Exhibit NICON 1, the learned trial judge was right in holding that the National Assembly could carry out oversight functions on the 1st Appellant which is a private company and whether having regards to the materials in the record and the relevant law, the trial Court was right in dismissing the Appellant’s claims.
2. Whether having regards to the fact that the 1st Appellant is a private company to which the provisions of the Companies and Allied Matters Act apply, the learned trial judge was right in holding that it was within the statutory functions of the 1st Respondent to monitor the affairs of the 1st Appellant.

ISSUE ONE
Whether on the facts of this case and a proper consideration of Section 88(2)(a),(b) of the 1999 Constitution and Clause 8.3 of the Share Sale and Purchase agreement, Exhibit NICON 1, the learned

trial judge was right in holding that the National Assembly could carry out oversight functions on the 1st Appellant which is a private company and whether having regards to the materials in the record and the relevant law, the trial Court was right in dismissing the Appellant’s claims.

The Appellants in arguing this issue have stated that this Court must put into consideration, the provisions of Section 88 particularly (2)(a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria in determining whether the National Assembly had the power to exercise and conduct oversight functions over the 1st Appellant which is now a private limited company. The Section provides thus:
88.
1. Subject to the provisions of this Constitution, each House of the National Assembly shall have power by resolution published in its journal or in the Official Gazette of the Government of the Federation to direct or cause to be directed investigation into –
(a) any matter or thing with respect to which it has power to make laws, and
(b) the conduct of affairs of any person, authority, ministry or government department charged, or

intended to be charged, with the duty of or responsibility for –
(i) executing or administering laws enacted by National Assembly, and
(ii) disbursing or administering moneys appropriated or to be appropriated by the National Assembly.
2. The powers conferred on the National Assembly under the provisions of this Section are exercisable only for the purpose of enabling it to –
(a) make laws with respect to any matter within its legislative competence and correct any defects in existing laws; and
(b) expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it.
The question that must be answered is that; in considering the provisions of Section 88(2)(a), (b) of the 1999 Constitution and Clause 8.3 of the Share Sale and Purchase agreement, Exhibit NICON 1, are the Appellants subject to the oversight functions of the 1st Respondent and the National Assembly?
I have read through the entire agreement marked as Exhibit NICON 1, particularly Clause 8.3 which states:
“The purchaser shall

as far as possible adhere to and implement in full the Post Acquisition Plan. The Post Acquisition plan maybe modified from time to time with the prior written consent of Bureau of Public Enterprise or its agents shall be entitled to undertake biennial monitoring of the Purchaser’s compliance with the Post Acquisition Plan.”
Applying the literal interpretation of this Clause 8.3, it is clear that the 1st Appellant, despite the fact that it has been privatized and now has the identity of a private limited company, it is still subject to Post Acquisition monitoring by the 1st Respondent or its agents for an unspecified period of time. I do not see in any part of the said Exhibit NICON 1 that the oversight monitoring can only be done within 5 years after the privatization exercise. As far as I am concerned, the oversight monitoring by the 1st Respondent on the 1st Appellant is for a time uncertain and cannot be said to be limited to 5 years as argued by the Appellants.
The 1st Respondent has the power to perform oversight functions on the 1st Appellant either by itself or through its agents.
I totally agree with the reasoning of the

trial judge where he held on pages 369 – 371 of the Records of appeal thus:
“It is my view, in the exercise of the Court’s interpretative jurisdiction, which it can only exercise to interpret the agreement between both the 1st Defendant and the Plaintiffs and not to rewrite or substitute its own views for what the parties have voluntarily agreed to in relation to the transaction which led to the execution of Exhibits NICON 1 or TA1, is that he 1st Defendant was exercising a legitimate right or power (due regard being had to Prof. Hohfield’s analysis of these jural terms) which are conferred on it by Clause 8.3 in Exhibit NICON 1which the Plaintiffs have duly and voluntarily executed with the 1st Defendant.
By Clause 8.3 in Exhibit NICON 1, the Plaintiffs have agreed to submit themselves to a post acquisition plan which entitled the 1st Defendant or its agents “to undertake biennial monitoring of the Purchaser’s compliance with the Post Acquisition Plan.” It is an obligation which the 2nd Plaintiff entered into as “warranties, representations covenants” of the Purchaser of the 1st Plaintiff.<br< p=””style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

The second question which I have set down as the core issue by which this suit is to be resolved, is whether the “Post Acquisition Plan” entail the sort of monitoring which the 1st Defendant by its letters attached as Exhibit TA2 series demanded from the 1st Plaintiff. My answer to this question too is that it does entails such monitoring by the share force of Clause 8.3 in Exhibit NICON 1 or Exhibit TA1.
The third issue is whether there is a time frame agreed by both parties as to when the obligations created by Clause 8.3 in Exhibit NICON 1 or Exhibit TA1 will cease. I have read through the whole of the said “Shares Sale and Purchase agreement” produced by both parties, I was unable to see any specific provision by which the said obligation is limited to five(5) years post acquisition date of the 1st Plaintiff. Clause 7 in Exhibit NICON 1 titled “Limitations on warranties” does not in any of its sub-clauses, make any such time limitation, and the Court cannot read into Exhibit NICON 1 that both parties never agreed. ”
The submission of the Appellants’ counsel in paragraph 4.16 of their Appellants

brief of argument where it was argued that the obligation created in Clause 8.3 of the Share Sale and Purchase Agreement Exhibit NICON 1 or TA1 to monitor and control the affairs and activities of the 1st Appellant by the 1st Respondent cannot override the operation of the Companies and Allied Matters Act, cannot hold water. This is because parties are bound by the terms of the agreement they voluntarily entered into. Parties cannot be heard to unilaterally abandon or regard as bad, terms of an agreement they voluntarily executed.
In the case of ATLAS PETROLEUM INTERNATIONAL VS. P. M. COMMUNICATIONS (2017) LPELR – 41957 (CA) it was held per Georgewill, JCA that:
“…in law parties are bound by the terms of their contract and would not except in proved cases of misrepresentation or duress or fraud or other vitiating factors be allowed to resile from the terms of contract voluntarily entered into by them. It is indeed a mark of honor and integrity that those who voluntarily enter into agreement are held bound to the terms of their agreement. See JFS Investment Ltd v. Brawal Line Ltd & Ors (2010) 12 SC (Pt. 1)110 @pp. 161 – 162, where

his lordship, Rhodes-Vivour JSC had emphatically pronounced succinctly inter alia thus: “This is premised on the reasoning that where the terms of the contract are dear and unambiguous the duty of the Court is to give effect to them and on no account rewrite the contract of the parties. In the absence of fraud, duress, misrepresentation, the parties are bound by the terms of the contract they freely entered into.” See also A. G. Rivers State V. A. G. Akwa Ibom & Anor (2011) 3 SC 1; 1. Mobil Producing Nig. UnLtd V. Umenweke (2002) 9 NWLR (Pt. 731) 543; Total Nig. Plc V. Morkah (2002) 9 NWLR (pt. 773) 492.” (Pp. 32-33, Paras. D – C).
In the Supreme Court case of LARMIE VS. DATA PROCESSING MAINTENANCE & SERVICES LTD (2005) LPELR – 1756 (SC) it was held per Mohammed, JSC that:
“The law is trite regarding the bindingness of terms of agreement on the parties. Where parties enter into an agreement in writing, they are bound by the terms thereof. This Court, and indeed any other Court will not allow anything to be read into such agreement, terms on which the parties were not in agreement or were not ad-idem.

See Baba v. Nigerian Civil Aviation Training Centre, Zaria (1991) 5 NWLR (Pt. 192) 388; Union Bank of Nigeria Ltd v. B. U. Umeh & Sons Ltd (1996) 1 NWLR (Pt. 426) 565; S.C.O.A. Nigeria Ltd v. Bourdex Ltd (1990) 3 NWLR (Pt. 138) 380 and Koiki v. Magnusson (1999) 8 NWLR (Pt. 615) 492 at 514.” (P. 46, paras. D – G).
Based on the foregoing, the only material on record that must be considered in determining whether the National Assembly or the 1st Respondent has oversight monitoring powers over the 1st Appellant is the Share Sale and Purchase agreement i.e. Exhibit NICON 1.
The Appellants’ counsel has argued in paragraph 4.16 of the Appellants brief of argument that the obligation created in Clause 8.3 of the Share Sale and Purchase agreement to monitor and control the affairs and activities of the 1st Appellant by the 1st Respondent cannot override the operation of Companies and Allied Matters Act. The Appellants’ counsel have referred to Section 624 and 625(1) of CAMA. For ease of reference, I will reproduce the provisions of Section 625 of the CAMA:
625(1) Except as otherwise expressly provided in this Act-
(a) The provisions of this Act shall

have effect notwithstanding anything to the contrary contained in the memorandum or articles of a company, or in any agreement executed, by it, or in any resolution passed by the company in general meeting or by its board of directors whether the same be registered, executed or passed, as the case maybe, before or after the commencement of this Act;
(b) Any provision contained in the memorandum or articles, agreement or resolution as in paragraph (a) of this subsection shall, to the extent to which it is repugnant to the provisions of this Act, become or be void as the case maybe.”
I agree with the submissions of Appellants’ counsel that no agreement can override the provisions of the Companies and Allied Matters Act which is a statutory enactment when and where there is a conflict. However, the question that must be asked is; Is there a conflict between the provisions of CAMA and the Clauses contained in Exhibit NICON 1? Exhibit NICON 1 is an agreement, entered into by the Company and the Federal Government where certain obligations were made particularly in respect to the post privatization monitoring of the 1st Appellant by the 1st

Respondent. Clause 8.3 of Exhibit NICON 1 complained about by the Appellants counsel as conflicting with the provisions of CAMA has nothing to do with the running of the company. It has nothing to do with the operations and affairs of the company. It is an agreement separate and distinct from the operations of the company which is controlled by CAMA. I do not see any conflict at all. How does monitoring compliance with the Post privatization plan conflict with the provisions of CAMA? The Appellants’ counsel have not in anyway demonstrated how the Post acquisition monitoring plan conflicts with the provisions of CAMA. The Appellants’ counsel cannot just argue at large and expect this Court to agree. The 1st Respondent is not seeking to control the affairs of the company contrary to the provisions of the CAMA but is merely seeking for the enforcement of the obligation entered into by the Appellants.
The Appellants’ counsel’s argument that the Federal government of Nigeria being a minority shareholder in the 1st Appellant can only approach the Court through a minority right action when any act or omission affects its rights as a

member cannot hold water. This is because the issue of Post privatization monitoring has nothing to do with the right of the Federal government as a shareholder or as a member of the company. The issue of minority right action cannot come into play in this instant case.
The Appellants’ counsel has urged this Court to consider Clause 8.2 of the Share Sale and Purchase agreement in determining the time frame within which such post privatization monitoring exercise can be done. I have read the said Clause 8.2 and for ease of reference, it is hereby reproduced:
“The Purchaser shall not within a period of five years sell or in any other manner whatsoever transfer all or any part of the shares without the prior written consent of BPE (which consent maybe refused or given subject to any conditions which BPE may, in its discretion determine and provided however that such consent shall not be unreasonably withheld). If such consent to sell or transfer all or any part of the shares is granted by the BPE, the Purchaser shall give BPE the option to re-purchase or nominate a purchaser for the shares at a mutually agreeable price.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Interpreting this Clause 8.2 literally, it simply means that the Appellants shall not sell or transfer any of the shares of the company within 5 years after the privatization without the consent of the 1st Respondent being sought and obtained in writing. This Clause absolutely has nothing to do with Post acquisition plan or the exercise of oversight functions.

Issue one is hereby resolved against the Appellants.

ISSUE TWO
Whether having regards to the fact that the 1st Appellant is a private company to which the provisions of the Companies and Allied Matters Act apply, the learned trial judge was right in holding that it was within the statutory functions of the 1st Respondent to monitor the affairs of the 1st Appellant.

I agree with the submissions and arguments of Appellants’ counsel that the trial judge was wrong when he held that the 1st Appellant remained a public enterprise whose affairs is still subject to the control of the Federal Government because of the remaining 30% equity shares the latter still holds in the 1st Appellant after the privatization exercise carried out by the Federal government.
A company is a

separate legal entity from its directors and shareholders and it has perpetual succession. Thus, in the case of NEW RESOURCES INT’L LTD & ANOR VS. ORANUSI (2010) LPELR – 4592 (CA) it was held that:
“Since the decision of the House of Lords in 1897 in the much celebrated case of Salomon v. Salomon and Company Ltd (1897) AC 22, it established firmly the concept of corporate personality which means that once a company is incorporated under the relevant laws, it becomes a separate person from the individuals who are its members. It has capacity to enjoy legal rights and is subjected to legal duties which do not coincide with that of its members. Such a company is said to have legal personality and is always referred to as an “artificial person”. This being the case, it can sue and be sued in its own name. It may own property in its own right and its assets, liabilities, rights and obligations are distinct from that of its members. It follows that a registered company has perpetual succession. Thus, a change in membership or death of a member does not affect the existence of the company. It acquires its capital from its members through the sale of

shares and invariably distributes the profits in form of dividends made from the utilization of the capital to its members. See Modern Nigerian Company Law (2nd Edition) by M. O. Sofowora Esq.” Per John Inyang Okoro, J.C.A (Pp. 22 – 23, paras. G – E).
In the case of EGBOR & ANOR VS. OGBEBOR (2015) LPELR – 24902 (CA) it was held per Ogakwu, JCA that:
“It is hornbook law that the abstraction called ‘company’ or ‘corporation’ is clothed with legal persona distinct and separate from the aggregate personalities of the individual shareholders and the officers in charge of its management. See the leading case of SALOMON v. SALOMON & CO (supra) or (2002) 1 WRN 1. But a company, although a legal person, is an artificial one which can only act through its human agents and officers, including its principal officers who have been described as its ‘directing mind and will’. See TRENCO (NIG) LIMITED v. AFRICAN REAL ESTATE AND INVESTMENT COMPANY LIMITED & ANOR (1978) ALL N.L.R. 124 or (1978) 4 SC 8. The legal position was captured graphically by the esteemed Lord Denning in the case of BOLTON (ENGINEERING) CO. LTD vs. GRAHAM & SONS (1957) 1 QB 159 at 172 or (1956) 3 ALL E.R. 624 at 630

as follows: “A company may in many ways be likened to a human body. They have a brain and a nerve Centre which controls what they do. They also have hands which hold the tools and act in accordance with directions from the Centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company and control what they do. The state of mind of these managers is the state of mind of the company and is treated by the law as such. So you will find in cases where the law requires personal fault as a condition of liability in tort, the fault of the managers will be the personal fault of the company.” See also Section 65 of the Companies and Allied Matters Act, LENNARDS CARRYING COMPANY v. ASIATIC PETROLEUM (1915) A. C. 705 at 713 – 714 (per Viscount Haldane, L. C.); FAWEHINMI v. NBA (No. 2) [1989] 2 NWLR (PT. 105) 558 and KURUBO v. ZACH MOTISON (NIG.) LIMITED [1992] 5 NWLR (PT. 239) 102 at 115.” (Pp. 26 – 27, paras. A – B).

From the above cases cited, it is clear that a company enjoys a separate identity, personality from its members, including its shareholders. It is inconsequential that the Federal Government owns the entire shares or part of the shares of the company. This does not make the company a public company or a federal agency, neither does it subject the company to the control of the Government.
In the Supreme Court case of OMISADE VS. AKANDE (1987) 2 NWLR (PT. 55) 158 AT 170 it was held Per Bello C.J.N. where he adopted the observation of Lord Denning M. R. in WALLERSTEINER VS. MOIR (NO. 2) (1975) 2 WLR 389 AT 395 where he said:
“It is a fundamental principle of our law that a company is a legal person, with its own corporate identity, separate and distinct from the directors or shareholders, and with its own property rights and interests to which alone it is entitled.”
It was decided in the Supreme Court case of OKOMU OIL PALM CO. LTD VS. ISEHIENRHIEN (2001) 6 NWLR (PT. 710) 660 AT PAGE 686 PARAGRAPHS G – H, that:
“Having a controlling number of shares in a Company is not synonymous with its ownership once it is

incorporated as an entity of its own and having its own separate legal existence. in the instant case, the fact that the Federal Government of Nigeria holds a controlling share in the appellant does not make the later an agent of the former such as to make the Civil Service Rules applicable to it.”
The only reason the 1st Respondent and its agent still have the power to exercise oversight functions over the 1st Appellant is because of Clause 8.3 of the Share Sale and Purchase agreement (Exhibit NICON 1 or Exhibit TA1) as resolved under issue one and not because the Federal Government still holds 30% of the shares of the 1st Appellant.

In the light of the foregoing, this appeal is not allowed and therefore dismissed. The judgment of the trial Court is affirmed.

STEPHEN JONAH ADAH, J.C.A.: I was availed the opportunity of reading in draft the judgment just delivered in Court by my learned brother, Mohammed Baba Idris, JCA.
I agree with the reasoning and conclusion which I adopt as mine.

I too find no merit in this appeal. The appeal is hereby dismissed and I abide by the consequential order made there in.

YARGATA BYENCHIT NIMPAR, J.C.A.: My learned brother, MOHAMMED BABA IDRIS JCA availed to me an advanced copy of the Judgment just delivered. I completely agree with succinct and concise resolution of the issues donated for determination in this Appeal. I have nothing more to add. I abide by all the orders made in the lead Judgment.

Appearances:

OLUJINMI, ESQ., with him, I. AJANI, ESQ. and B. ODUGBESAN, ESQ. For Appellant(s)

M. KAYODE, ESQ., with him, A. S. ABDULMALIK, ESQ., B. BENJAMIN. ESQ. and A. OBIWUMMA, ESQ. – for 1st Respondent For Respondent(s)