ABUJA INT’L HOTELS LTD & ANOR v. BPE & ANOR
(2022)LCN/15968(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, August 05, 2022
CA/A/600/2016
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
1. ABUJA INTERNATIONAL HOTELS LIMITED 2. ASSURANCE ACQUISITION LIMITED APPELANT(S)
And
1. BUREAU OF PUBLIC ENTERPRISES 2. HON. ATTORNEY GENERAL OF THE FEDERATION RESPONDENT(S)
RATIO
THE CARDINAL PRINCIPLE OF INTERPRETATION OF STATUTES
It is the cardinal principle of interpretation of documents that, where the words in a document, or statute are clear and plain, the Court should give it that literal or plain meaning without resort to other technical rule of construction. In doing that, the Court is not permitted to go outside the document in order to find a meaning. In other words, it must confine itself within the four walls of the statute. SeeWilliams v. Williams & Ors. (2014) LPELR-22642 (CA); NNPC v. Mamman Aminu (2013) LPELR – 21395 (CA) and Nwegbu v. Nwegbu (2017) LPELR-42680 (CA). See also Nigerian Army v. Aminun-Kano (2010) LPELR-2013 (SC). Thus, in New Horizon Hotels Limited & Ors. v. Emmanuel Nnamdi Okoye (2018) LPELR-45328 (CA), this Court per M. L. Garba, JCA (as he then was) held that:
“When words and language employed and specifically used by the maker of a document or legislature in a statute are expressly clear, straightforward and unambiguous, leaving no room for any doubt about the purport or intention of the maker or the legislature, they do not require interpretation, but to be assigned and applied in their ordinary and simple grammatical meaning without the need for glosses or interpolation by the Court….” PER TSAMMANI, J.C.A.
WHETHER OR NOT PARTIES ARE BOUND BY THE TERMS OF CONTRACT FREELY ENTERED INTO
It is the law that parties are bound by the terms of the contract freely entered into between them. Furthermore, in the construction of the terms of a contract, Courts are bound by the written words of the agreement; and therefore cannot import into the contract extraneous matters not stipulated expressly or even impliedly stipulated in the contract. The duty of the Court is to give effect to the terms of the contract as agreed by the parties. In other words, the duty of the Court is to give effect to or discover the intention of the parties and not to import into the contract ideas not patent in the written words of the contractual document. See Nika Fishing Co. Ltd. v. Lavina Corporation (2008) 16 NWLR (Pt. 1114) 509; City Engineering (Nig.) Ltd. v. FHA (1997) LPELR—868 (SC); Baliol (Nig.) Ltd. v. Navcon (Nig.) Ltd. (2010) LPELR-717 (SC); Ihunwo v. Ihunwo & Ors. (2013) LPELR-20084 (SC) and GTB v. Ogboji (2019) LPELR-47642 (CA). Thus, in Afrotec Technical Services (Nig.) Ltd. v. MIA & Sons Ltd. & Anor. (2000) 15 NWLR (Pt. 692) 730, the Supreme Court held per Iguh, JSC that: .
“The law is long settled that in interpreting the provisions of a written contract, no addition thereto or, subtraction therefrom is permissible. The words used must be given effect to and no word should be ignored in the interpretation of the intention of the parties otherwise the Court will be seen as rewriting the agreement between the parties….” PER TSAMMANI, J.C.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): By an Originating Summons filed on the 17th day of October, 2012 the Appellants who were the Plaintiffs in the Court below, requested the Court to answer the following questions:
(i) WHETHER with the privatisation of the 1st Plaintiff under the Public Enterprises Privatisation and Commercialisation 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.
(ii) WHETHER, if the Defendants are so entitled, which is not conceded, the Defendants are entitled under that guise to compel the 1st Plaintiff to surrender to the demand by the House of Representatives Committee on Privatisation and Commercialisation to carry out over-sight functions in the 1st Plaintiff.
(iii) WHETHER the Defendants are entitled to interfere with or revoke the sale of the 1st Plaintiff to the 2nd Plaintiff.
The Plaintiffs/Appellants then prayed that, if the above questions are answered in the negative, the following reliefs be granted in their favour:
(a) 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.
(b) DECLARATION that the Defendants are not entitled to compel the 1st Plaintiff to surrender to the demand by the House of Representatives Committee on Privatisation and Commercialisation to carry out over-sight functions in the 1st Plaintiff
(c) 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
(d) 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 Plaintiff to the 2nd Plaintiff
The Originating Summons was backed by an Affidavit of 18 paragraphs deposed to by one Biodun Olagbemi, the Managing Director/Chief Executive Officer to the 1st Plaintiff. Annexed to the Affidavit were four (4) documents marked as Exhibits HOTEL 1, 2, 3 and 4 respectively. A Written Address was also filed in support.
Upon being served, the 1st Defendant/Respondent filed a Memorandum of Appearance on 21/11/2012. Filed along with the Memorandum of Appearance was a Counter-Affidavit of 20 paragraphs deposed to by one Oyin Koleosho, a Legal Practitioner in the Law Firm of Bayo Osipitan & Co of counsel for the 1st Defendant. Annexed to the Counter Affidavit are two (2) documents marked as Exhibits TA1 and TA2 respectively. A Written Address in opposition to the Originating Summons was also filed by the 1st Defendant/Respondent on 21/11/2012.
The 2nd Defendant/Respondent on his part, filed a Memorandum of Appearance on 23/11/2012. This was followed by Preliminary Objection which was filed on 10/4/2014. The said objection was considered and dismissed. Apart from the objection, the 2nd Respondent did not file any other process in opposition to the Originating Summons.
The facts of this case have been appropriately summarized by learned counsel for the Appellant at pages 2-3 (Paras 1.1-1.4) of the Appellants’ brief of Arguments as follows:
“1.1 The simple fact of the case is that the 1st Appellant was a public limited liability company and solely owned by the Federal Government of Nigeria before it was privatized and sold to the 2nd Appellant sometime in November 2006 under the Privatization and Commercialization Program of the Federal Government of Nigeria which was carried out by the 1st Respondent under its enabling Act, Public Enterprises (Privatization and Commercialization) Act.
1.2 By the Share Sale and Purchase Agreement, Exhibit Hotel-1, the 2nd Appellant acquired 90% equity shares in the 1st Appellant while the Federal Government of Nigeria retained 10% equity shares in the 1st Appellant and other obligations were created in the said agreement. In clause 7.2 of Hotel-1, it was agreed that the 2nd Appellant shall not within the period of 5 years of privatization and sale of the shareholdings of the Federal Government of Nigeria in the 1st Appellant to the 2nd Appellant sell or transfer the shareholdings without the consent of the 1st Respondent being sought. In clause 7.3 of Hotel-1, it was also agreed that the 2nd Appellant shall allow the 1st Respondent to monitor post acquisition plan.
1.3 Sometime in September 2012, the House of Representatives wrote to the 1st Appellant of the intention of its committee on monitoring of the public enterprises sold under the Privatization and Commercialization Programme of the Federal Government of Nigeria to visit the 1st Appellant in order to carry out oversight functions of the National Assembly. Exhibit Hotel 2.
1.4 It was based on the refusal by 1st Appellant to allow the National Assembly to carry out the oversight functions, the 1st Respondent reacted by its letter threatening to revoke the sale of the 1st Appellant to the 2nd Appellant that culminated into the action filed at the trial Court”.
At the hearing of the Originating Summons, the parties adopted and also adumbrated on their Written Addresses. On the 13th day of June, 2016, the learned trial Judge, G. O. Kolawole, J (as he then was) dismissed the Plaintiffs’ (Appellants) claims. The Plaintiffs/Appellants, being displeased with the decision, have filed this appeal.
The Notice of Appeal consisting of five (5) Grounds of Appeal, was filed on 7/9/2016. The parties then filed and exchanged Briefs of Arguments. The Appellants’ Brief of Arguments, settled by Akinsola Olujinmi; Esq was filed on 06/12/2016. Therein, four (4) issues were distilled for determination as follows:
(i) Whether on the facts of this case and a proper consideration of Section 88(2)(a)(b) of the 1999 Constitution, Sections 13 and 14 of the Public Enterprises (Privatization and Commercialization) Act, 2004 and Clause 7.3 of the Share Sale and Purchase Agreement, Exhibit Hotel 1, the learned trial Judge was right in holding that the National Assembly and the 1st Respondent could carry out oversight functions on the 1st Appellant, which is a private company.
(Ground 2).
(ii) Whether in the light of the materials before the Court, the learned trial Judge was right in holding that 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.
(Ground1).
(iii) Whether the trial Court was right when he adopted in this case the reasoning and analysis he had made in the sister suit in deciding this suit.
(Ground 3).
(iv) Whether the trial Court arrived at the right decision when it held that having regard to the similarity of the facts and issues of law in a sister case he had decided, he would find it difficult to return a different verdict in this case.
(Ground 4).
(v) Whether having regards to the materials in the record and the relevant law, the trial Court was right in dismissing the Appellants’ claims.
(Ground 5).
The 1st Respondent filed a brief of Arguments on 27/7/2017. The 1st Respondent then formulated one issue for determination as follows:
“Whether the Learned Trial Judge rightly or wrongly dismissed the Appellants’ claims”.
The 2nd Respondent did not file any Brief of Arguments. However, the Appellant filed an Appellants’ Reply to the 1st Respondent’s Brief of Arguments on 08/11/2017.
I have carefully considered the five (5) issues distilled by the Appellant; and upon reflecting on the lone issue raised by the 1st Respondent, I am of the view that all the five (5) issues raised by the Appellants can be properly subsumed in the lone issue raised by the 1st Respondent. However, I am of the view that, the lone issue formulated by the 1st Respondent can be appropriately reframed as follows:
“Whether the learned trial Judge was right when upon the affidavit and documentary evidence before the Court, he dismissed the Appellants’ claims”.
Now, in arguing this appeal, learned Senior Counsel for the Appellant began by contending that, the complaints in this case are based on the misconception by the trial Court that, the 1st Appellant remains a public enterprise subject to the control of Government by virtue of the 10% equity shares retained by the Federal Government of Nigeria after the privatization exercise carried out by the Federal Government through the 1st Respondent. Referring to the judgment of the learned trial Judge at pages 304 lines 20-21 and 305 lines 1-9 of the record of appeal, and paragraphs 3, 7, 8 and 10 of the Affidavit in Support of the Originating Summons, learned counsel submitted that, it is clear that the 1st Appellant was a public enterprise under the name of Abuja International Hotels Limited and solely owned by the Federal Government before 90% of its shares were sold to the 2nd Appellant in November, 2006.
Learned Senior Counsel for the Appellants went on to submit that, it is settled law, that once a company is incorporated or registered under the law, it becomes a creation of law, clothed with independent legal personality from the moment of incorporation. The cases of Salomon v. Salomon & Co. Ltd. (1897) A.C. 22 at 51; Trenco Nigeria Ltd. v. African Real Estate Ltd. (1978) 1 LRN 146 at 153; Marina Nominees Ltd. v. Federal Board of inland Revenue (1986) 2 NWLR (Pt. 20) 48 at 61 were cited in support. Learned counsel for the Appellant then cited Section 37 of the Companies & Allied Matters Act, 1990 and the cases of CBDI (Nig.) Ltd. v. COBEC (Nig.) Ltd. (2004) 13 NWLR (Pt.890) 376 and K.S.O. Allied Products Ltd. v. Kafa Trading Co. Ltd. (1996) 3 NWLR (Pt.436) 244 to submit that, a company that is registered remains a separate and distinct entity from any one of its shareholders, no matter how many shares an individual may hold.
That registered companies are, therefore, not agents of the subscribers or trustees for them. The case of Aso Motel Kaduna Ltd. v. Deyemo (2006) 7 NWLR 93 was also cited in support.
Learned Senior Counsel for the Appellant then cited the cases of Ashibuogwu v. Attorney-General (Bendel) (1988) NWLR (Pt. 69) 138; NIDB v. Fembeo (Nig.) Ltd. (1997) 2 NWLR (Pt. 489) 543 at 564 and Abacha v. A. G. Federation (2014) 18 NWLR (Pt. 1438) 48 to submit that, it is clear, as pleaded, that the 1st Appellant is a private limited liability company with a distinct and separate legal personality from its shareholders; the Federal Government of Nigeria. That, the fact that the Federal Government of Nigeria holds 10% equity shares in the 1st Appellant does not make it an agent of the Federal Government of Nigeria so as to make its affairs to be subject to the control of the Federal Government of Nigeria. The cases of Okomu Oil Palm Co. Ltd. v. Iserhienrhien (2001) 6 NWLR (Pt. 710) 660 at 686 and Aso Motel Kaduna Ltd. v. Deyemo (2006) 7 NWLR (Pt. 978 at 87 were cited in support.
Learned Senior Counsel for the Appellant went on to submit that, in arriving at its decision, the trial Court erroneously relied on Clause 7.3 of Exhibit Hotel 1. It was contended that, the obligation created in Clause 7.3 of the Share Sale and Purchase Agreement (Exhibit Hotel 1) 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. Learned counsel then cited Sections 624(1) and 625(1) of the Companies and Allied Matters Act, Cap. C20, Laws of the Federation of Nigeria, 2004 in support. That, the import of the above provisions is that, any provision contained in the Memorandum, Article, Agreement or Resolution which is contrary to those provisions of the C.A.M.A. to the extent to which it is repugnant to the provisions of the Act, will be void. It was accordingly submitted that, Clause 7.3 of Exhibit Hotel 1 cannot override the operation of Sections 299-303 of C. A.M.A; and therefore, the obligation created in Clause 7.3 of the Agreement is void land unenforceable.
Learned Senior Counsel for the Appellants also contended that, the trial Court misunderstood the intendment of Section 88(A) and (B) of the 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 10% equity shares in the 1st Appellant. That, the 1st Appellant having been privatized by the 1st Respondent under the Public Enterprise (Privatization and Commercialization) Act, ceases to be a public enterprise whose affairs can be monitored and/or controlled by the Federal Government of Nigeria through the 1st Respondent or its agent. In other words, that the power of the National Assembly to carry out oversight function under Section 88(2)(a) and (b) of the 1999 Constitution does not extend to or cover the affairs of the privatized company. The cases of Reps. V. S.P.D.C.N. (2010) 11 NWLR (Pt. 1205) 268; S.P.D.C.N. Ltd. v. Ajuwa (2015) 14 NWLR (Pt. 1480) 403 and Lagos State v. Eko Hotels Ltd. (2006) NWLR (Pt. 1011) 378 at 438 were also cited in support.
Learned Senior Counsel for the Appellant then referred to the functions of the 1st Respondent as stipulated in Sections 12 and 13 of the Public Enterprises (Privatization and Commercialization) Act. It was then submitted that, where a body is a creation of statute, it must act in accordance with the law creating it. That, the functions of the 1st Respondent under Section 13 of Public Enterprises (Privatization and Commercialization) Act, does not include monitoring of the affairs and activities of a privatized company. That though Section 14(e) of Public Enterprises (Privatization and Commercialization) Act applies to monitoring of the operations of public enterprises after commercialization, Clause 7.3 of Exhibit Hotel 1 is not applicable to any of the functions of the 1st Respondent under Section 13 of the Act. That in the circumstances, neither the 1st Respondent nor the National Assembly is entitled to continue to monitor the affairs and activities of the 1st Appellant. We were accordingly urged to hold that, the learned trial Judge erred in holding that in view of the Federal Government’s 10% shareholding in the 1st Appellant, the 1st Appellant remains a company in which the 1st Respondent or National Assembly can conduct oversight functions.
On issue two (2), learned Senior Counsel for the Appellants referred to Clauses 7.2 and 7.3 of the Share Sales and Purchase Agreement (Exhibit Hotel 1) and the findings of the learned trial Judge at pages 304 lines 18-22 and 371 lines 1-3, to contend that, it is clear from Clause 7.2 (supra), that after 5 years of privatization of the 1st Appellant, the 2nd Appellant will not be subject to the monitoring and control of the 1st Respondent by seeking its consent before divesting its shareholdings in the 1st Appellant. That, Clause 7.2 of Exhibit Hotel 1 is specific on the limitation of 5 years for the monitoring and control of the affairs of the 1st Appellant by the 1st Respondent.
Learned Senior Counsel for the Appellant’s submitted as the 3rd and 4th issue that, it is trite law that, to ensure fair hearing, it is the duty of a Court to entertain or adjudicate on all issues and applications brought before it notwithstanding the strength or weakness of such matter. The case of Kotoye v. Saraki (1991) 8 NWLR (Pt. 211) 638 at 649 Paras. B-C was then cited to submit that, instead of adhering to that principle, the trial Court relied on its earlier decision in FHC/ABJ/CS/660/2012, though similar to this suit to determine this suit.
The cases of Anakwenze v. Tapp Industry Ltd. (1991) 7 NWLR (Pt. 202) 177; Ogundoyin & Ors. v. Adeyemi (2001) 7 NSCQR 378 and Baba v. N.C. A. T. C. (1991) 5 NWLR (Pt. 192) 288 were then cited to submit that, when it comes to fair hearing, the issue will be, whether a party entitled to be heard was in fact heard before a decision was taken. Furthermore, that the duty of a Judge to render a decision in the case before it on the facts of that case, and not on similarity with an earlier case.
Learned Senior Counsel for the Appellants then submitted that, the finding of the trial Court that it would find it difficult to return a different verdict in the case having regard to the familiarity of the facts and issues of law with an earlier case occasioned a miscarriage of justice. The case ofKotoye v. CBN (1989) NWLR (Pt. 98) 419 at 448 was then cited to submit that, by so holding, the trial Court failed to accord the Appellant a fair hearing by hamstringing his consideration of this case by the views he had held in an earlier case. In other words, that the failure to properly consider the case of a party amounts to a breach of the principles of fair hearing enshrined in Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). We were therefore, urged to hold that, if the trial Court had considered the materials on record and the relevant laws applicable thereto, it would have held that the Appellants established their case; and to allow the appeal.
In response, Learned Senior Counsel for the 1st Respondent contended that, the case of the Appellants in the Court below, was that the post privatization monitoring of the 1st Appellant by the 1st Respondent was restricted to 5 years as stipulated in Clause 7.2 of the Share Purchase Agreement. That, however, the said Clause 7.2 deals with non-sale of the Shares of the 1st Appellant by the 2nd Appellant within 5 years of the agreement without the consent of the 1st Respondent. That, the Appellants had argued in favour of a conjunctive interpretation of the said Clauses 7.2 and 7.3 of the Share Purchase Agreement, such that after 5 years as prescribed in Clause 7.2, the 1st Appellant was free of post privatization monitoring by the 1st Respondent as stipulated in Clause 7.3. That, the 1st Respondent on the other hand, had argued that each of the sub-clauses of Clause 7 of the Share Sale and Purchase Agreement deals with an independent obligation and warranty; and therefore should be construed independently. Therefore, that the 5 years stipulated in Clause 7.2 does not apply to Clause 7.3.
Learned Senior Counsel then referred to Clauses 7.2 and 7.3 and the holding of the learned trial Judge at pages 303-304 of the Record of Appeal, to submit that, the trial Court evidently considered the issue of conjunctive or disjunctive interpretation of Clauses 7.2 and 7.3 of Exhibit “Hotel 1” and “TA1”, and rightly concluded that the two should be separately construed. That, the learned trial Judge considered Clause 7.3 of the Share Sale and Purchase Agreement when he upheld the 1st Respondent’s right to embark on post-privatization monitoring of the 1st Appellant even after 5 years of the Share Sales and Purchase Agreement. That, it is the Share Sale and Purchase Agreement that regulates the relationship between the Appellant and the 1st Respondent; and that the trial Court had the primary duty of interpreting and giving effect to the Agreement of the parties. The cases of Ahmed v. Abu & Anor. (2016) LPELR-40261 (CA) and Nika Fishing Co. Ltd. v. Lavina Corporation (2008) 16 NWLR (Pt. 1114) 509 at 511 were cited in support.
Learned Senior Counsel also submitted that, though the learned trial Judge referred to the Federal Government’s shareholding of 10% as the basis for his decision, such decision cannot be reversed because of the interpretation given to Clauses 7.2 and 7.3 (supra). That, it is not every error that will result in the reversal of the decision of a Court, and that, an Appellant needs to go further to show that as a result of the error, he suffered a miscarriage of justice and that but for the error, judgment would have been in his favour. The cases of Kotoye v. Saraki (1994) 7 NWLR (Pt. 357) 414 and Umoh v. I.T.G.C. (2001)4 NWLR (Pt. 703) 281 at 299 were cited in support.
Learned Senior Counsel for the 1st Respondent went on to submit that, the cases cited by Appellants in paragraphs 4.10-4.14 of the Appellants’ Brief of Arguments are not apposite to the facts of this case. That, none of the cases cited, deal with partial privatization of a privatized company, a Federal Government entity. In other words, that none of the cases deal with the core issues in this case. That, a careful reading of the law enabling the 1st Respondent, will show that by virtue of Section 13(e) of the Public Enterprises Privatization and Commercialization Act, the 1st Respondent is empowered to carry out all activities required for a successful issue of shares and sale of assets of Public Enterprises to be privatized. That, it is common ground that privatization and commercialization of public enterprises through sale of shares of Public Enterprises and part of the functions of the 1st Respondent. That, since the 1st Respondent is empowered by law to look into Share Sales and Purchase Agreement which contains clause on post-privatization monitoring of the parties as agreed in Clause 7.3 of the share purchase agreement. That no time or condition was prescribed for the 1st Respondent’s post-privatization monitoring right over the 1st Appellant.
It was also contended that, the submission of the Appellant that the 1st Respondent lack power of post-privatization monitoring, contradicts the Appellants’ argument that, post-privatization monitoring power over the 1st Appellant is restricted to five (5) years as prescribed in Clause 7.2 of the Share Sales and Purchase Agreement (Exhibits Hotel 1 and Hotel 4). That, it is clear that the Appellants cannot approbate and reprobate on the 1st Respondent’s post-privatization monitoring power. The cases of Suberu v. State (2010)8 NWLR (Pt. 1197) 586 and University of Ilorin & Ors. v. Oduleye (2006) LPELR-11708 (CA) were also cited in support.
Learned Senior Counsel for the 1st Respondent went on to submit that, the contention of learned counsel for the Appellant that the learned trial Judge neglected to consider materials before him misses the point. That, the learned trial Judge upheld the sanctity of Exhibit TA4 and Hotel 1 on post-privatization powers of the 1st Respondent derived from Sections 4, 13E and 16(b) of its enabling statute. That the C.A.M.A. which deals with the formation and administration of companies is not applicable to the circumstances of this case; because, the Public Enterprises (Privatization and Commercialization) Act deals specifically with issues of privatization of public enterprises. The cases of C.A.C. v. Governing Council, I. T. F. (2015) 1 NWLR (Pt. 1439) 114 at 131 and Ibori V ogbom (2004) 15 NWLR (Pt. 895) 154 at 194-195 were then cited to further submit that, the Public Enterprises (Privatization and Commercialization) Act is a specific legislation and later in time, therefore, in the event of any conflict, it prevails over the Companies and Allied Matters Act (CAMA). Sullivan, R, Sullivan and Driedger on the construction of statutes (4th Ed.), 2002 by Butterworth at P.27 was also cited in support.
It is also submitted by learned Senior Counsel for the 1st Respondent that, the Appellant’s argument that the 1st Respondent wants to utilize the post-acquisition plan to arm-twist the 1st Appellant to yield to the demand by the House of Representatives Committee on Privatization and Commercialization to carry out the oversight functions of the 1st Appellant is totally off point. The case of Bradford v. Pickles (1895) A-C 587 was cited in support. That the power of the 1st Respondent is completely independent and separate from the power of oversight function vested in the National Assembly by the Constitution. That such power of the 1st Respondent is derived from Sections 4, 13(e) and 16(b) of the Public Enterprise (Privatization and Commercialization) Act.
On the Appellant’s complaint of breach of the right to fair hearing, learned Senior Counsel for the 1st Respondent contended that, there was no such breach as the learned trial Judge painstakingly reviewed the Affidavit evidence and exhibits placed before him by the parties including the submissions of counsel before arriving at a decision. That, the statement by the learned trial Judge that having delivered a judgment with similar facts and on similar issues of law, it would be difficult to return a different verdict, was made obiter. That indeed, such statement demonstrated the learned trial Judge’s fidelity to judicial precedent; a Corner Stone of our judicial system. That, it is apparent therefore, that the learned trial Judge having considered all materials before him, did not breach the Appellant’s fundamental right to fair hearing. On that note, we were urged to dismiss the appeal.
In reply on points of law, learned Senior Counsel for the Appellant contended that, it is the questions formulated for determination in the Originating Summons that constitute the issues before the Court.
The case of Olley v. Tunji (2013) 10 NWLR (Pt. 1362) 275 at 313 was cited in support, and to further submit that the disjunctive or conjunctive interpretation of Clauses 7.2 and 7.3 of the shares sales and purchase agreement was not one of the questions formulated for determination, or even issues before the Court.
Learned Senior Counsel for the Appellant also cited the case of Alhaji Abah Marraban Kwari v. Livinus Rago (2000) LPELR—11976 (CA) to submit that, the Appellant did not make any contradictory submission but only argued in the alternative in line with the issues before the Court. That, it is not extraneous to argue in the alternative.
On the 1st Respondent’s power to monitor and control the activities of the 1st Appellant under Sections 4, 13(e) and 16(b) of the enabling law, learned Senior Counsel for the Appellant contended that, those provisions are clear and should be given their natural meaning. It was then submitted that, those provisions do not provide for the monitoring and control of the activities of a privatized company. Therefore, that the 1st Respondent cannot seek refuge under the provisions of Section 4, 13(e) and 16(b) of the Public Enterprises (Privatization and Commercialization) Act. Furthermore, that Sections 624 and 625 gives the provisions of C.A.M.A; overriding force notwithstanding anything contained in any agreement entered into by the 1st Appellant. That, the principle of law which makes a specific law to be applicable where there is conflict between the general and specific provision does not apply in the circumstances of this case since there is no conflict.
Now, it is apparent from reliefs 1, 2 and 3 of the Originating Summons that, the principal reliefs sought are declaratory. The relief for injunction sought is ancillary to or dependent on the success of those declaratory reliefs. Therefore, where those declaratory reliefs fail, the injunctive relief may not be granted. It is on that note that I wish to iterate that, the Appellants who were the Plaintiffs in the Court below, had the bounden duty to produce sufficient credible evidence to entitle them to the declaratory reliefs sought. To succeed, the Appellants had to rely on the evidence adduced by them and not on the weakness of the defence, or even failure of the Defendants (Respondents) to adduce any evidence.
Indeed, admissions by the Respondents would not avail the Plaintiffs/Appellants, although the Appellant has the liberty to rely on any aspect of the defence that support their case or claim. It therefore means that, in the absence of credible evidence adduced by the Plaintiffs/Appellants, the declaratory reliefs sought could not be granted. See Johnson & Anor. v. INEC & Ors. (2019) LPELR – 49442 (CA); Wing Commander Jibril Bala Adamu (Rtd.) v. Nigerian Airforce & Anor. (2022) LPELR-56587 (SC) and Akaninwo & Ors. v. Nsirim & Ors. (2008) 9 NWLR (Pt. 421) 439. Thus, in GE International Operations (Nig.) Ltd. v. Q. Oil & Gas Services Ltd. (2016) LPELR-47999 (SC), Ngwuta, JSC (of blessed memory) said:
“In an action for declaration of a right, the Plaintiff must satisfy the Court by credible evidence that he is entitled to the right he claims. The claim for declaration cannot be granted on admission of the defendant”.
The claim of the Appellants before the Court below, and which is subject of this appeal was initiated by an Originating Summons. The facts that led to the dispute leading to this appeal had earlier been introduced in the course of this judgment. Specifically, the facts upon which the Plaintiffs/Appellants premised their claim are as deposed to in paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 of the Affidavit in support of the Originating Summons, which I reproduce below:
3. The first Plaintiff is a private limited liability company which until November, 2006 was a public enterprise owned by the Federal Government of Nigeria.
4. The 2nd Plaintiff is a private limited liability company incorporated under the laws of Nigeria.
5. The 1st Defendant is a statutory body established by the Public Enterprise (Privatisation and Commercialisation) Act, whose functions include carrying out all activities required for the successful issue of shares and sales of assets of public enterprises to be privatized.
6. The 2nd Defendant is the Chief Law Officer of the Federation and the nominal representative in all actions by or against the Federal Government
7. In November, 2006, the Government of Nigeria represented by the 1st defendant through a Shares Purchases Agreement, sold the 1st plaintiff then a public enterprise to the 2nd Plaintiff who was core investor in the 1st Plaintiff.
8. A copy of the Shares Purchase Agreement referred to above is Exhibited as HOTEL1 herewith.
9. Under Exhibit HOTEL 1, the 1st Defendant was entitled within five years following the sale of the 1st Plaintiff to Hotels Acquisition Limited to know and give its consent if the shares of the 1st Plaintiff were to be sold.
10. Since the sale of the 1st Plaintiff to the 2nd plaintiff, the 1st Plaintiff has operated as a private sector concern and in fact, changed the brand name from Le Meridien to NICON Luxury Hotel.
11. By letter dated 19th September, 2012, the House of Representatives Committee on Privatisation and Commercialisation wrote to notify the 1st Plaintiff of its intention to visit 1st Plaintiff on 26th September, 2012 to assess post-privatization performance of the company. A copy of the letter is Exhibited HOTEL2 herewith.
12. The 1st Plaintiff through its solicitor, by letter dated 24th September, 2012 informed the said committee that the proposed visit would be unconstitutional on the ground that the 1st Plaintiff is a private concern and cannot therefore be subject of the oversight functions of the House of Representatives. A copy of the letter is Exhibit HOTEL3 herewith.
13. Following Exhibit HOTEL 3, the committee did not carry out the proposed visit.
14. Surprisingly by letter dated 4th October, 2012, the 1st Defendant informed the Plaintiff that in view of the refusal of the 1st Plaintiff to allow BPE to monitor the extent of compliance with the obligations contained in the Post Acquisition Plan of the Agreement for sale of 1st Plaintiff, it would terminate the sales agreement within 7 days except the 1st Plaintiff yielded to monitoring. A copy of the letter is Exhibit HOTEL 4 herewith.
15. The Defendants are not entitled to terminate the sale of the 1st Plaintiff to the 2nd Plaintiff.
16. I verily believe from the foregoing that the said House of Representatives Committee is the one using the 1st Defendant to arm-twist the 1st plaintiff to submit to the oversight function of the committee.
17. It is the position of the Plaintiffs that the 1st Plaintiff is not subject to the oversight function of the House of Representatives or any monitoring or control by the 1st Defendant as the Plaintiffs are entitled to change the whole structure of the 1st Plaintiff after the initial five years of the sale of the 1st Plaintiff, which expired in November, 2011.
In opposition to the Originating Summons, the 1st Defendant/Respondent deposed in the Counter-Affidavit filed on 21/11/2012 as follows:
7. The 1st Defendant is an agency of the Federal Government of Nigeria established with the duty of preparing Federal Government Assets and Entities for privatization and commercialization.
8. That the 1st Plaintiff which was formerly known as NICON Luxury Hotels was one of the assets the 1st Defendant/Applicant herein prepared for privatization by the 1st Defendant herein.
9. That by strategic core investor sale, the 2nd Plaintiff emerged as the preferred bidder and acquired ninety percent of Federal Government’s Shareholding in the 1st Plaintiff.
10. That contrary to paragraph 10 of the Plaintiffs’ affidavit in support of the Originating Summons, the 2nd Plaintiff is not the sole owner of all the shares in the 1st Plaintiff.
11. That the Federal Government still holds 10% of the shares of the 1st Plaintiff.
12. That consequent on the sale of the 90% of the Federal Government’s Shares in the 1st Plaintiff to the 2nd Plaintiff, the 2nd Plaintiff and the 1st Defendant executed a Share Sale and Purchase Agreement. The said Agreement and the Post privatization Plan which accompanied the Agreement are hereby attached and marked as Exhibit TA1.
13. That by the said Agreement, the 2nd Plaintiff undertook to perform several obligations as specified in the Post Acquisition Plan annexed to the Agreement which said obligation have not been performed by the 2nd Defendant.
14. That by virtue of Clause 7.3 of the Share Sale and Purchase Agreement, the 1st Defendant or its Agent is empowered to perform oversight functions on the activities of the Plaintiffs by undertaking biennia! monitoring of the Plaintiffs in order to ensure compliance with the Post Acquisition Plan.
15. That the 1st Defendant wrote several letters to the Plaintiffs informing them of their proposed visits to the Plaintiffs’ organization to conduct a performance monitoring exercise on 1st Plaintiff aimed at ensuring the performance of Post Obligations by the 1st Defendant The said letters are hereby marked and attached as Exhibit TA 2.
16. That the Plaintiffs willfully refused to allow the 1st Defendant to conduct their post monitoring exercise in order to ascertain compliance/non-compliance with the Post Acquisition Plan.
17. That contrary to the facts deposed to in paragraph 12 of the Affidavit in Support of the Originating Summons, Clause 9.1 of the Agreement empowered the 1st Defendant to terminate or rescind the Share Sale and Purchase Agreement for non-compliance with any covenants contained in Clause 8 of the Agreement.
18. That I know as a fact that the rights of the 1st Defendant to monitor the activities of the Plaintiffs and to ensure compliance with the Post Acquisition Plan are separate from the oversight functions of the House of Representatives.
19. That at all material times, the 1st Defendant exercised the right reserved for her under the Share Purchase and Sale Agreement to monitor the activities of the Plaintiffs.
Now, I have carefully read the arguments of learned senior counsel. I have also carefully perused the judgment of the trial Court at pages 289-311 of the record of appeal. Upon such consideration, I find that the dispute between the Appellants and the Respondents is a very narrow one. It is whether the 1st Respondent has the power to monitor or continue to monitor the activities of the 1st Appellant. In the said judgment, the learned trial Judge described the legal relationship between the parties in dispute, at page 302 lines 5-303 line 9 of the record of appeal as follows:
“By the “Shares Sale and Purchase Agreement” executed between the 1st Defendant and the plaintiffs on 17/11/2006, the 1st Defendant on behalf of the Federal Government of Nigeria, sold 90% of the Federal Government of Nigeria’s equity shares in the 1st Plaintiff to the 2nd Plaintiff. This is attested to under Clause K of the Recital to Exhibit “TA1” and “HOTEL1″. It appears that the 10% of the Federal Government of Nigeria’s equity shares has remained unsold. I have no doubt, by the Ordinary Principles of Corporate Law, Management and Finance, that the 2nd Plaintiff is the majority shareholder” of the 1st Plaintiff In Exhibit “HOTEL1” and “TA1” by its Clause 7.2, the Plaintiffs, as “Warranties, Representations & Covenants of the Purchaser”, undertook not to sell or in any other manner within a period of five years after the completion of the transaction, sell all or any part of the shares sold to it by the 1st Defendant. They however do so with prior consent of the 1st Defendant sought and obtained, and the Plaintiffs are required, in the event that they intend to transfer or sell their shares, i.e. 90% of the Federal Government of Nigeria’s equity holding in the 1st Plaintiff or any part of it, to give to the Defendant a first option to repurchase or to nominate a purchaser for the shares at a mutually agreeable price. This was an undertaking which the Plaintiffs covenanted to the 1st Defendant in 2006 and was to be in operation for a period of five (5) years post acquisition exercise of the 1st Plaintiff by the 2nd Plaintiff”.
The above portion of the judgment, in my view, is a cogent and proper construction of Clause 7.2 of the “Share Sale and Purchase Agreement” which was tendered by both parties and admitted as Exhibit “HOTEL1” and “TA1” respectively. That in my view, is the plain meaning of the said Clause 7.2. It is the cardinal principle of interpretation of documents that, where the words in a document, or statute are clear and plain, the Court should give it that literal or plain meaning without resort to other technical rule of construction. In doing that, the Court is not permitted to go outside the document in order to find a meaning. In other words, it must confine itself within the four walls of the statute. SeeWilliams v. Williams & Ors. (2014) LPELR-22642 (CA); NNPC v. Mamman Aminu (2013) LPELR – 21395 (CA) and Nwegbu v. Nwegbu (2017) LPELR-42680 (CA). See also Nigerian Army v. Aminun-Kano (2010) LPELR-2013 (SC). Thus, in New Horizon Hotels Limited & Ors. v. Emmanuel Nnamdi Okoye (2018) LPELR-45328 (CA), this Court per M. L. Garba, JCA (as he then was) held that:
“When words and language employed and specifically used by the maker of a document or legislature in a statute are expressly clear, straightforward and unambiguous, leaving no room for any doubt about the purport or intention of the maker or the legislature, they do not require interpretation, but to be assigned and applied in their ordinary and simple grammatical meaning without the need for glosses or interpolation by the Court….”
It is clear to me that the purport of Clause 7.2 of the “Share Sale and Purchase Agreement” is to prevent or restrict the Purchaser (2nd Appellant) from selling the 90% Shares it bought and owned in the 1st Appellant without the prior written consent of the 1st Respondent. For proper appreciation, I hereby reproduce the said Clause 7.2 hereunder, as follows:
“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 may be 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 repurchase or nominate a purchaser for the shares at a mutually agreeable price”.
Now, by the privatization policy of the Federal Government of Nigeria, certain public enterprises wholly or partly owned by the Federal Government were earmarked for total or partial privatization. By that policy, the Federal Government relinquished part of or all of its equity shares and other interests in such enterprises. The 1st Respondent was thus established by Section 12 of the Public Enterprises (Privatisation and Commercialisation) Act, 2004. The functions of the Bureau are stipulated in Sections 13 and 14 of the Act. Section 13 provides for the functions of the Bureau (1st Respondent) in respect of Privatisation while Section 14 deals with its functions on commercialization. One of the functions of the 1st Respondent as stipulated in Section 13(e) is to:-
“carryout all activities required for the successful issue of shares and sale of assets of the public enterprises to be privatized”.
To effectively actualize this objective, the 1st Respondent is given power under Section 16 of the Act, to inter alia
“enter into contracts or partnerships with any company, firm or person which in its opinion will facilitate the discharge of its functions”.
It is in the exercise of that power that Exhibit “Hotel 1” or “TA1” was executed between the 2nd Appellant and the 1st Respondent for the sale to it (2nd Appellant) of the 1st Appellant (Abuja International Hotels Limited). By the said Share Sale and Purchase Agreement (Exhibit Hotel 1), the Purchaser (2nd Appellant) shall not within a period of five (5) years sell or transfer the shares or any part of it without the prior consent of the BPE (1st Respondent). In the event the 2nd Appellant desires to sell the shares or any part of it, the BPE shall be given the option to re-purchase or nominate a purchaser at a mutually agreeable price. The remedy for any breach is stipulated in paragraphs 9.1 and 9.2 of the Share Sale and Purchase Agreement.
Clause 7.3 of the Share Sale and Purchase Agreement on the other hand stipulates that:
“The Purchaser shall as far as possible adhere to and implement in full the Post Acquisition Plan. The Post Acquisition Plan may be modified from time to time with the prior written consent of BPE (not to be unreasonably withheld). The Purchaser acknowledges and agrees that BPE or its agents shall be entitled to undertake biennial monitoring of the Purchaser’s compliance with the Post Acquisition Plan”.
In the interpretation of Clause 9.3 of the Share Sales and Purchase Agreement, the learned trial Judge held at pages 303 line 10-305 line 9 of the record of appeal as follows:
“By Clause 7.3 of the “Shares Sale and Purchase Agreement” (Exhibit “Hotel 1” and “TAI”) the Plaintiffs as Purchaser of 90% Federal Government of Nigeria’s equity shares in the 1st Plaintiff, also covenanted with the 1st Defendant that “BPE or its agents shall be entitled to undertake biennial monitoring of the purchaser’s compliance with Post Acquisition Plan” The “Shares Sale and Purchase Agreement” (Exhibit “Hotel 1” and “TAI”) in its Clause 1 titled: “Definitions and Interpretation” provides for the “Post Acquisition Plan” and defines it to mean “the plan for operation of ABUJA INTERNATIONAL HOTELS LIMITED as set out in Schedule 1 to this Agreement” The 1st Defendant’s Exhibit “TA2” which is the same document as “Hotei 4” attached to the Plaintiffs’ Originating Summons, is the 1st Defendant’s letter dated 4/10/12 by which the 1st Defendant requested to conduct the monitoring of the 1st Plaintiff as agreed between the parties when the “Shares Sale and Purchase Agreement” was executed.
I am not in doubt, that although the “Shares Sales and Purchase Agreement”, i.e. Exhibit “Hotei 1” and “TA1” was executed in 2006, the provision in Clauses 7.2 and 7.3 which I have adverted to, can hardly be construed as the Plaintiffs had wanted to do, to deny the 1st Defendant’s right to request for the monitoring exercise even after 5 years when the transaction had been consummated. Clause 7.3 in Exhibit “HOTEL1” or “TA1” pursuant to which the 1st Defendant wrote the request in Exhibit “HOTEL 4” or “TA2” has no period of limitation and, I really do not know any rules of interpretation or construction, by which the limitation period specified in clause 7.2 of the Agreement, can be read into clause 7.3 of the same Agreement, i.e. “Shares Sale and Purchase Agreement” as both of them touched on different and specific subjects or issues. The right of the 1st Defendant to be able to request for a “Post Acquisition Monitoring” of the 1st Plaintiff may cease when the balance of the Federal Government of Nigeria’s 10% equity shares in the 1st Plaintiff is finally divested and sold to other investors or even to the 2nd Plaintiff. Until that occurs, my view is that the obligations which the Plaintiffs have in this respect, would remain extant and the right exercisable by the 1st Defendant being the Statutory Agent” of the Federal Government of Nigeria who holds the said 10% equity shares in trust for the Federal Government of Nigeria”.
The learned trial Judge then concluded on this issue at page 306 lines 3-14 of the record of appeal as follows:
“So, my view is that what the 1st Defendant did in relation to the quantity of the Federal Government of Nigeria’s shares sold to the 2nd Plaintiff and evidenced by the “Share Sale and purchase Agreement” (Exhibit “Hotei 1” or “TAI”) was at best, a partial privatization of the 1st Plaintiff It is my view, that the outstanding 10% equity Shares of the Federal Government of Nigeria in the 1st Plaintiff would remain the sustaining “life wire” for the obligation in clause 7.3 of the said Agreement vis-a-vis the monitoring of the 1st Plaintiff by the 1st Defendant even if after 5 years of the sale of the 90% of the Federal Government of Nigeria’s equity holdings in the 1st Plaintiff”.
It is apparent to me, from the portions of the judgment of the lower Court reproduced above, that the stipulations in Clauses 7.2 and 7.3 of the “Shares Sale and Purchase Agreement, deal with two separate and unrelated issues. While Clause 7.2 imposes conditions in the event the 2nd Appellant desires to re-sale the shares it bought in the 1st Appellant, Clause 7.3 gives power to the Appellant or its agents to undertake biennial monitoring of the 2nd Appellant’s compliance with the Post Acquisition Plan. Clause 7.3 deals with the monitoring of the performance by the 2nd Appellant (the Purchaser) in respect of the Post Acquisition Plan, and not the operations of the 1st Appellant as a Limited Liability Company. In other words, Clause 7.3 imposes an obligation on the 2nd Appellant to implement the Post Acquisition Plan as stipulated in Schedule 1 of the Share Sales and Purchase Agreement. It also guarantees the vires of the 1st Respondent to monitor compliance by the 2nd Appellant with the Post Acquisition Plan. Post Acquisition Plan has been defined by the Share Sales and Purchase Agreement as:
“….the Plan for the operation of ABUJA INTERNATIONAL HOTELS LIMITED as set out in Schedule 1 to this Agreement”.
In stipulating, as was done in clause 7.3, it should be remembered that, the 2nd Appellant (ASSURANCE ACQUISITION LIMITED) is the Purchaser, or strategic Investor in the 1st Appellant (Abuja International Hotel Ltd). A “Strategic investor” has been defined in Section 33 of the Public Enterprise (Privatisation and Commercialisation) Act to mean:
“…..a reputable core investor or group of investors having the requisite technical expertise, the managerial experience and the financial capacity to effectively contribute to the management of the enterprises to be privatized”.
It would be seen that, certain obligations were agreed upon between the 2nd Appellant as the Purchaser and the 1st Appellant as agent of the Federal Government of Nigeria, as Post Acquisition Plan and spelt out in Schedule 1 of the Agreement. It is those items listed in the Schedule 1 to the Agreement that the 2nd Appellant is expected to comply with and which the National Council on Privatization established pursuant to Part II of the Act, through the 1st Respondent is mandated to ensure compliance with. In my view, that is the purpose of the stipulation in Clause 7.3 of the Agreement. The monitoring power of the 1st Respondent is also not limited or trammelled by the five (5) years period stipulated in Clause 7.2.
It should be remembered that Clause 7.3 is a fundamental stipulation which is expected to be observed by the purchaser of the 1st Appellant; which is the 2nd Appellant. It is the law that parties are bound by the terms of the contract freely entered into between them. Furthermore, in the construction of the terms of a contract, Courts are bound by the written words of the agreement; and therefore cannot import into the contract extraneous matters not stipulated expressly or even impliedly stipulated in the contract. The duty of the Court is to give effect to the terms of the contract as agreed by the parties. In other words, the duty of the Court is to give effect to or discover the intention of the parties and not to import into the contract ideas not patent in the written words of the contractual document. See Nika Fishing Co. Ltd. v. Lavina Corporation (2008) 16 NWLR (Pt. 1114) 509; City Engineering (Nig.) Ltd. v. FHA (1997) LPELR—868 (SC); Baliol (Nig.) Ltd. v. Navcon (Nig.) Ltd. (2010) LPELR-717 (SC); Ihunwo v. Ihunwo & Ors. (2013) LPELR-20084 (SC) and GTB v. Ogboji (2019) LPELR-47642 (CA). Thus, in Afrotec Technical Services (Nig.) Ltd. v. MIA & Sons Ltd. & Anor. (2000) 15 NWLR (Pt. 692) 730, the Supreme Court held per Iguh, JSC that: .
“The law is long settled that in interpreting the provisions of a written contract, no addition thereto or, subtraction therefrom is permissible. The words used must be given effect to and no word should be ignored in the interpretation of the intention of the parties otherwise the Court will be seen as rewriting the agreement between the parties….”
On that note, I am of the view that, the learned trial Judge correctly construed the provisions of Clauses 7.2 and 7.3 of the Share Sales and Purchase Agreement (Exhibit” Hotel 1″) in relation to the monitoring powers of the 1st Respondent of the compliance by the 2nd Appellant with the Post Acquisition Plan as stipulated in Schedule 1 to the Agreement. The parties to the contract are bound by the terms of the contract document. It means therefore, that the 2nd Appellant is bound by Clause 7.3 of Exhibit “Hotel 1” to avail the 1st Respondent the freedom or opportunity to exercise its power of monitoring compliance with the Post Acquisition Plan in relation to the sale of the 1st Appellant. In so finding, it should be understood that the monitoring activity of the 1st Respondent is completely different from the oversight functions of the House of Representatives as stipulated in Section 88 of the 1999 Constitution. Since none of the two houses of the National Assembly is a party to this action, I will not venture into the issue of their oversight functions as it relates to the subject matter of this appeal. I however venture to say that, the monitoring power of the Appellants as stipulated in Clause 7.3 enures to the 1st Respondent only in view of the principles of privity of contracts.
On the complaint of the Appellants that the trial Court breached their right to fair hearing when the learned trial Judge observed that, having delivered judgment in an earlier case having similar facts and issues of law with the instant case, it would be difficult for him to return a verdict different from that other case. I agree with learned senior counsel for the 1st Respondent that, the statement made by the learned trial Judge was merely obiter. It is settled law that a statement made obiter by a Judge in the course of judgment writing does not constitute a reason for his decision. This is particularly so, as in the instant case, when the learned trial Judge comprehensively considered and resolved all the pertinent issues in the matter.
In any case in view of the principles of judicial precedent, the learned trial Judge was right when he relied on a previous decision rendered by him, having found that the facts and the law applicable in that case are similar to those in the instant case. Learned Senior Counsel for the Respondents was therefore right when he submitted that the attitude of the trial Court was in keeping fidelity with the principles of precedence. I therefore hold that, there was no breach of the Appellants’ right to fair hearing.
The issue on Sections 624 and 625 of the Companies and Allied Matters Act did not arise for determination at the trial. It was introduced for the first time in this appeal by learned counsel for the Appellants. To raise a fresh or new issue, the leave of this Court ought to have been first sought and obtained before raising same. On that note, I hereby hold that the issues canvassed on the effect of the provisions of the Companies and Allied Matters Act (CAMA), are incompetent. Being incompetent, they are hereby struck out. Having held as above, it would be seen that this appeal lacks merit. It is hereby dismissed. The judgment of the Federal High Court delivered on the 13th day of June, 2016 in Suit No: FHC/ABJ/CS/661/2012 is hereby affirmed.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother, Haruna Simon Tsammani, JCA, and I agree with the reasoning and conclusion made therein.
I therefore also find the appeal lacking in merit and it is hereby dismissed. I affirm the judgment of the Federal High Court delivered on the 13th day of June, 2016 in Suit No: FHC/ABJ/CS/661/2012.
I make no order as to costs.
DANLAMI ZAMA SENCHI, J.C.A.: I had the privilege of reading in draft, the lead judgment of my learned brother, HARUNA SIMON TSAMMANI, JCA just delivered and I agree with the reasoning and conclusion arrived thereat.
My brother has adequately considered the issues formulated for determination culled from the Grounds contained in the Notice of Appeal. I have nothing useful to add. For the same reasons advanced in the lead judgment which I adopt as mine, this appeal lacks merit and is hereby dismissed by me as well.
I abide by the other orders made therein the lead judgment.
Appearances:
Akinsola Olujinmi, Esq, with him, Ifeoluwa Ajani, Esq,. For Appellant(s)
A. M. Kayode, Esq, with him, F. P. Chorio, Esq, for 1st Respondent. For Respondent(s)
