BUREAU OF PUBLIC ENTERPRISES & ANOR v. BFI GROUP CORPORATION
(2022)LCN/16090(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, January 21, 2022
CA/A/24/2020
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Kenneth Ikechukwu Amadi Justice of the Court of Appeal
Between
1. BUREAU OF PUBLIC ENTERPRISES 2. ALEX OKOH (DIRECTOR GENERAL, BPE) APPELANT(S)
And
BFI GROUP CORPORATION RESPONDENT(S)
RATIO:
THE PRINCIPLE OF LAW ON THE CONCEPT OF CORPORATE PERSONALITY
The concept of corporate personality established since the decision in the celebrated case ofSalomon Vs. Salomon and Company Ltd (1897) AC 22, has its foundation written in stone, on the belief that once a company is incorporated it becomes a separate person from the individuals who are its members, with capacity to enjoy legal rights and duties distinct from its members. It may own property in its own right and its assets, liabilities, rights and obligations are distinct from that of its members. See NIGERIAN DEPOSIT INSURANCE CORPORATION VS FINANCIAL MERCHANT BANK LTD (1997) 4 NWLR (PT 501) 519; COMPANHIA BRASILEIRA DE INFRASTRUTUTIRA VS COBEC (NIG) LTD (2004) 13 NWLR (PT 890) 376 AT 394 – 395 and VILBEKO (NIG) LTD VS NIGERIAN DEPOSIT INSURANCE CORPORATION (2006) 12 NWLR (PT 994) 280 AT 295 F-H. MOHAMMED MUSTAPHA, J.C.A.
THE INDEPENDENCY OF A GOVERNMENT – OWNED COMPANIES
This situation readily brings to mind BAUCHI STATE GOVT & ORS V AREWA CEREMICS & ORS (2019) LPELR-47490- CA where this Court per UGO JCA, for context referred to the book, ‘Company Law’, by Professor Emeka Chianu (Law lords Publications) page 288, where the learned author gave some perspective on the general attitude of government owned or operated companies and the response by Courts to those attitudes in the following words:
“All too often government-owned companies forget that they are completely independent of government or their parent body. As a result, they seek to take advantage of the statute that sets up the parent body. The Courts have resisted this. The subsidiaries are not accorded any special privilege, they are treated as any other company incorporated under CAMA.” MOHAMMED MUSTAPHA, J.C.A.
THE SERVICE OF MANDATORY PROCESS IS FUNDAMENTAL TO THE JURISDICTION OF THE COURT
Service of mandatory process is fundamental to the jurisdiction of the Court. When there is a specific provision that a party is to be served in a particular manner, that has to be observed otherwise, the jurisdiction of the Court against that party would not have been activated. See WEMA BANK PLC V. BRASTEM- STERR (NIG) LTD (2011) 6 NWLR (PT. 1242) 67. MOHAMMED MUSTAPHA, J.C.A.
CASES ARE APPLICABLE WHERE THERE ARE NO DINSTINGUISHING FEATURES BETWEEN ITS FACTS AND THE FACTS OF THE CASE
The law is trite that cases are authorities, and only applicable where there are no distinguishing features between its facts and the facts of the case where it is sought to be applied. SeeINEC & ANOR VS. RAY (2004) 14 NWLR (PT.892) 129. A previous decision cannot be followed where the facts or law applicable in that other decision are distinguishable from those in the case at hand. Where the facts of two cases are distinguishable, none is binding on the other as authority. See OSAKUE VS. FEDERAL COLLEGE OF EDUCATION (TECH.) ASABA (2010) ALL FWLR (PT.522) 1601 AND AYINKE VS. LAWAL (1994) 7 NWLR (PT.356) 263/282. MOHAMMED MUSTAPHA, J.C.A.
DISAGREEMENT BETWEEN PARTIES ON THE INTREPRETATION OF AN AGREEMENT DULY SIGNED BY THEM DOES NOT TRANSLATE TO CONTEMPT
It is also contended that the disagreement between parties on the interpretation of an agreement duly signed by them does not translate to contempt, especially as there was no deliberate disobedience of the order of Court and that the respondent who voluntarily executed the agreement, even though it sought to introduce the annexures, is estopped from alleging that the appellants acted in contempt of the judgment of the Supreme Court and Court of Appeal judgments by their refusal to attach the various documents as annexures. See SUBERU V STATE (2010) 8 NWLR part 1197 page 586. MOHAMMED MUSTAPHA, J.C.A.
THE PROOF BEYOND REASONABLE DOUBT DOES NOT MEAN PROOF BEYOND ANY SHADOW OF DOUBT
On the issue of standard of proof, while it is granted that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt, however, proof beyond reasonable doubt does not mean proof beyond any shadow of doubt. So if the evidence against the accused is so strong as to leave only a remote possibility in his favour which can be dismissed as possible but not improbable, the case is proved beyond reasonable doubt. See AGBO V. STATE (2006) 6 NWLR (PT.9771) 545 SC and UWAGBOE V. STATE (2007) 6 NWLR (PT.1031) 606 It is not the requirement of the law that the alleged crime alleged be established beyond any shadow of doubt. The evidence on offer suffices for the proof of the quasi criminal offence of contempt in the circumstances. MOHAMMED MUSTAPHA, J.C.A.
THE JUDGMENT OF SUPREME COURT CANNOT BE SUBJECTED TO INTERPRETATION BY A LOWER COURT
As a general rule, the judgment of the Supreme Court cannot be subjected to interpretation by a lower Court, as a matter of both fact and law, Court of co-ordinate jurisdiction cannot subject the jurisdiction of another Court for interpretation like a deed or a will, much less the judgment of the Supreme Court. The danger inherent in such a misadventure is the likelihood of distortion, and even a greater danger of jurisdictional erosion or incursion. This should not be confused with the powers of a High Court to correct a slip in a judgment already delivered in the exercise of its general powers under the constitution. See BERLIET (NIG.) LTD. V. KACHALLA (1995) 9 NWLR (PT. 420) 478; FEDERAL PUBLIC TRUSTEE V. MRS. C. A. SOBAMOWO (1967) NMLR 350; ASIYANBI & ORS V. ADENIJI (1967) 1 ALL NLR 82 and ANYASINTI UMUNNA & 5 ORS. V. ANIMUDA OKWURAIWE & 3 ORS. (1978) 6-7 SC 1. Strictly speaking, the bone of contention here is whether the lower Court indeed interpreted the judgment of the Supreme Court in SC. 12/2008, and in doing so led to the conviction of the appellants for contempt. MOHAMMED MUSTAPHA, J.C.A.
MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court, Abuja, by Hon Justice I. A. Chikere, delivered on the 17th of December, 2019. The Appellants initially filed a notice of appeal on three grounds on the 17th of December, 2019; it is at pages 466 to 469 of the record of appeal. The subsequent notice of appeal is on six grounds, filed on the 22nd of January, 2020, it is at pages 10 to 17 of the supplementary record of appeal.
The Appellants’ brief was filed within time, on the 31st of January, 2020, and the Respondent’s brief was filed on the 20th day of May, 2020 but deemed properly filed on the 30th of September, 2020. The reply brief was filed on the 24th of June, 2020.
From the six grounds of appeal, two issues were formulated for determination on behalf of the Appellants and adopted by the Respondent as follows:
1. Whether the lower Court had jurisdiction to have entertained the motion on notice for contempt dated 10th of April, 2019, against the 2nd appellant, when as a matter of fact the 2nd appellant was not a party to the appeal before the Supreme Court in SC. 12/2008 and the appeal and the appeal before the Court of appeal in CA/A/637/2014 coupled with absence of personal service of forms 48 and 49 on the appellants and lack of personal service of the said motion on the 2nd appellant.
(grounds 1, 2, 3 and 6).
2. Whether in the general circumstances of the case the lower Court had powers and or jurisdiction to have subjected the Supreme Court judgment allegedly disobeyed to a fresh interpretation or clarification, which exercise led to conviction of the appellants for contempt of Court and sentence passed on the 2nd appellant. (grounds 4 and 5).
On issue one, it is submitted for the appellants that the lower Court was wrong to have assumed jurisdiction in respect of the contempt proceedings, having been made aware of the fact that the 2nd appellant was not a party to the appeal before the Supreme Court and the appeal before the Court of appeal. Learned senior counsel contends that unlike a limited liability company the 2nd appellant is neither the whole or part owner of the 1st Appellant, but an appointee by the president on recommendation of the national council on privatization as provided by Section 17 (1) (a) of the Public Enterprises (Privatization and Commercialization Act) and also that the purported lifting of the veil in the circumstances of the case lacks any legal basis.
It is further submitted that since the procedure by which the 2nd Appellant was connected to the contempt proceeding is wrong in law, the jurisdiction of the lower Court was not properly activated against him. That the Director-General of BPE was not a party to SC/12/2008 and CA/A/637/2014, he also is distinct from BPE itself, as such judgment and orders of Court are not binding on him as a non-party. See NABARUMA V OFFORDILE (2004) 13 NWLR part 891 page 599.
It is also submitted that the lower Court assumed jurisdiction and found that service of forms 48 and 49 on the 2nd Appellant was done in accordance with the rules on the premise that the averments of the Respondent in its counter affidavit in opposition to the preliminary objection at paragraph 9 (c) was not challenged by the appellants, and that there is an affidavit of service of forms 48 and 49 on the office of the 2nd appellant.
That this decision is wrong because the 2nd Appellant alleged lack of service of forms 48 and 49 in paragraph 5(iii) of its affidavit in support of the notice of preliminary objection, just as the 1st Appellant also alleged improper service of form 49 and lack of service of form 48 in paragraphs 5 (iv) and (v) of its affidavit in support of the preliminary objection.
Learned senior counsel also contends that having joined issues on personal service or lack of it, the respondent had the burden of proving personal service of forms 48 and 49 on the 2nd appellant and that lack of proof of personal service of forms 48 and 49 robbed the lower Court of jurisdiction to entertain the contempt proceedings, because it is a mandatory requirement of the law for the 2nd appellant to be served personally, as required by Order IX Rules 5 and 13, and that this requirement is not merely a matter of technicality as held by the lower Court. See IKIMI V OMALUMI (1995) 3 NWLR part 383 page 355. It is further submitted for the appellants that the affidavits of service indicated forms 48 and 49 were not served on the 2nd appellant personally as required by law; as a result the contempt proceedings were a nullity.
That also Order 35 Rule 2(2) requires the motion, affidavit, grounds and address be served personally on the person sought to be committed, except where personal service is dispensed with, for substituted service, with leave of Court, and that no such substituted service order was made by the lower Court and that even attempts at service of forms 48 and 49 suffice as personal service. See FCDA V KORIPAMO-AGARY (2010) 14 NWLR part 1213 page 364.
It is submitted for the Respondent in response while referring to Sections 17 (1) and (2) of the Public Enterprise Act and TRENCO NIG. LTD V AFRICAN REAL ESTATE & INVESTMENT CO. LTD (1978) NSCC 220 at 228 that being the chief executive of BPE, the 2nd Appellant is the directing mind and will of the 1st Appellant.
That also the 2nd Appellant is indeed a party to both SC. 12/2008 and CA/A/637/2014 in view of the orders of the Supreme Court in its judgment when it restrained “…servant, agents, privies, management or howsoever called from inviting any further bidding for the sale and acquisition of ALSCON.”; Lagos STATE BULK PURCHASE CORPORATION V. PURIFICATION TECHNIQUES NIG. LTD (2012) LPELR-20617-SC at 28.
It is further submitted that the proofs of service of forms 48 and 49 are consistent with acknowledgment of service of the processes, learned senior counsel referred the Court to Section 24 of the BPE Act, and contended that unchallenged evidence on record suggests that the processes were served on the 1st Appellant. See EGBEBU V IGP (2016) LPELR-40224-CA.
That Order 35 Rules 1 and 2, and FCDA V KORIPAMO- AGARY supra referred to did not change the fact that on the state of the law the processes in the committal were duly served on the appellants, as the authorities relied on are irrelevant.
In reply, it is further submitted for the Appellants that the Bureau of Public Enterprises is not a company registered under the CAMA where the corporate veil can be lifted that the BPE is a creation of statute separate from the 2nd Appellant who was never a part of the judgment of the Supreme Court.
That the company law concept of lifting the veil of incorporation does not apply to 1st Appellant, because it is a creation of statute and that since contempt against the 2nd Appellant is personal he has to be served personally.
RESOLUTION OF ISSUE ONE:
There is no dispute as to the fact that the 1st Appellant in this case is the Bureau of Public Enterprises, for short BPE, a corporate entity, and the 2nd Appellant, the Director-General of the 1st appellant, and therefore its chief executive.
TRENCO NIG. LTD V AFRICAN REAL ESTATE & INVESTMENT CO supra referred to by both learned senior counsel is without doubt a formidable authority on the need, and sometimes necessity to lift the veil of incorporation for the purpose of determining who indeed is the brain and brawn behind the mask of a corporate entity. The Supreme Court therein referred to the timeless and immutable findings of Viscount Haldane in S. LENNARD CARRYING CO. V ASIATIC PETROLEUM CO. LTD, also supra. Where it was held:
“…a corporation is an abstraction, it has no mind of its own any more than it has a body of its own; its active and directing will must consequently be sought in the person of somebody who for some purpose may be called an agent, but who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation.”
The concept of corporate personality established since the decision in the celebrated case of Salomon Vs. Salomon and Company Ltd (1897) AC 22, has its foundation written in stone, on the belief that once a company is incorporated it becomes a separate person from the individuals who are its members, with capacity to enjoy legal rights and duties distinct from its members. It may own property in its own right and its assets, liabilities, rights and obligations are distinct from that of its members. See NIGERIAN DEPOSIT INSURANCE CORPORATION VS FINANCIAL MERCHANT BANK LTD (1997) 4 NWLR (PT 501) 519; COMPANHIA BRASILEIRA DE INFRASTRUTUTIRA VS COBEC (NIG) LTD (2004) 13 NWLR (PT 890) 376 AT 394 – 395 and VILBEKO (NIG) LTD VS NIGERIAN DEPOSIT INSURANCE CORPORATION (2006) 12 NWLR (PT 994) 280 AT 295 F-H.
Learned senior counsel for the Appellants contends that the BPE is not a company registered under CAMA, as it is a creation of statute, separate from the 2nd Appellant, and therefore its veil cannot be lifted. This argument, with respect, is flawed, not least because Section 17 (2) of the BPE Act describes the 2nd Appellant as the chief executive of the 1st Appellant, and therefore its ‘directing mind’, as is the case with all corporations.
This situation readily brings to mind BAUCHI STATE GOVT & ORS V AREWA CEREMICS & ORS (2019) LPELR-47490- CA where this Court per UGO JCA, for context referred to the book, ‘Company Law’, by Professor Emeka Chianu (Law lords Publications) page 288, where the learned author gave some perspective on the general attitude of government owned or operated companies and the response by Courts to those attitudes in the following words:
“All too often government-owned companies forget that they are completely independent of government or their parent body. As a result, they seek to take advantage of the statute that sets up the parent body. The Courts have resisted this. The subsidiaries are not accorded any special privilege, they are treated as any other company incorporated under CAMA.”
From the onset, it is important not to lose sight of the fact that the judgment of the Supreme Court in SC. 12/2008 ordered:
“…restraining the defendant/respondent, its servants, agents, privies, management or howsoever called…”
Clearly by this, the apex Court minced no words, it simply meant the chief executive of the 1st Appellant is a party, and bound, because he is the brain behind the veil, to give effect to the judgment in issue. The fact of the matter is that the 1st Appellant is a corporate entity, run by the 2nd Appellant. Contrary to the vehement contention of learned silk for the appellants, it matters very little for the purpose of the law how it was incorporated or who the actual owners are or the purpose of incorporation, what matters is who runs it? Who is to blame where the need to apportion blame arises? And surely it is the 2nd Appellant in this case. The Court in OMOLOYE V ATT. GENERAL OF OYO STATE & ORS (1987) 4 NWLR part 64 page 267 validates this position of the law when it held among other things that: “… parties to an action include their privies”.
Contrary to the contention of learned senior counsel for the Appellants, the 2nd Appellant does not have to be the sole owner or even a part owner of the BPE for that matter, what matters is that he is in charge, and therefore the human element behind the corporation, whose state of mind is the state of mind of the company to all intents and purposes.
In this regard, the lower Court’s reference to ADEREMI V LAN & BARKER NIG. LTD (2000) 7 NWLR part 663 page and NBCI V INTEGRATED GAS NIG. LTD (1999) 8 NWLR part 613 page 119 is apt in the circumstances, especially in view of the disobedience of the Court order of the Supreme Court.
The 2nd Appellant is bound by the order of the Supreme Court, and the contention that he is not a party to the judgment is not only untenable but unconvincing, to say the least in the circumstances.
Service of mandatory process is fundamental to the jurisdiction of the Court. When there is a specific provision that a party is to be served in a particular manner, that has to be observed otherwise, the jurisdiction of the Court against that party would not have been activated. See WEMA BANK PLC V. BRASTEM- STERR (NIG) LTD (2011) 6 NWLR (PT. 1242) 67.
Section 85 of the Sheriffs and Civil Processes Act, CAP 470 LFN, 1990 stipulates that service shall be in accordance with the directive of the Court. Section 24 of the BPE Act provides that:
“a notice summons or other document required or authorized to be served upon the Bureau under the provisions of this Act or any other law or enactment may be served by delivering it to the director general or by sending it by registered post and addressed to the director-general at the principal office of the bureau.”
The proof of service of form 48 is at page 1 while the form 49 and motion on notice for committal were served on the Appellants as per page 51 of the record of appeal and 7 of the additional record.
The lower Court 455 held that:
“…a careful examination of the processes before this Court shows that service was effected on the director-general bureau of public enterprises. It is not in doubt that the party being sued is the director-general. The office in question does not operate in vacuum but with the presence of a human being i.e. Alex Okoh.”
The 1st Appellant can sue and be sued, and be subjected to contempt proceedings where the need arises. It would follow that when there is an allegation of contempt of the orders of Court as in this case, nothing stops the veil of incorporation from being lifting to hold the chief executive, its operating mind, from being held responsible as a biological person. This is because contempt charges are criminal or quasi criminal in nature and the corporation can only be liable through its principal officers. The decision of this Court in EGBEBU V IGP (2016) LPELR-40224-CA per MBABA, JCA puts this in clear perspective:
“But I should add that service of contempt proceedings, being quasi-criminal in nature has to be served, personally, on the contemnor. See FCDA VS AGARY (2010) 14 NWLR (PT.1213) 377 AT 391-392 and MIL. GOV. OF KWARA STATE VS AFOLABI (1991) 6 NWLR (PT.196) 212. See also the recent decision of this Court in ONOWU Vs OGBOKO & Ors CA/OW/104/2009, delivered on 6/1/16. But, that is, where the contemnor is a biological person. Where the contemnor is an institution or statutory person or office, I think it will be naive to expect personal service in the circumstance, as the same should be effected on the officer or responsible head or person in the office meant to be served, and the same receives it for the institution or officer-in charge. See the case of IGP Vs AKPAN (2008) ALL FWLR (pt.425) 1782 at 1793, where service on a subordinate officer who received for the Inspector General of Police was deemed, satisfactory.”
With respect I find the authority of IKIMI V OMALUMI supra relied on by the appellant distinguishable from the case at hand, for no other reason than the fact that the parties in IKIMI V OMALUMI were biological persons.
The law is trite that cases are authorities, and only applicable where there are no distinguishing features between its facts and the facts of the case where it is sought to be applied. See INEC & ANOR VS. RAY (2004) 14 NWLR (PT.892) 129. A previous decision cannot be followed where the facts or law applicable in that other decision are distinguishable from those in the case at hand. Where the facts of two cases are distinguishable, none is binding on the other as authority. See OSAKUE VS. FEDERAL COLLEGE OF EDUCATION (TECH.) ASABA (2010) ALL FWLR (PT.522) 1601 AND AYINKE VS. LAWAL (1994) 7 NWLR (PT.356) 263/282.
In regard to the finding of the trial Court that:
“…to expect a service of the Court processes directly on him when he occupies an office is with respect to the learned SAN, technicality taken too far.”
I hold the view with respect that learned senior counsel took it out of context, because service of both forms 48 and 49 were indeed effected on the 2nd Appellant who occupied the office of the director-general, as required by law; Order 35 Rule 2(2) of the Federal High Court (civil procedure) Rules 2019 was complied with.
It is for these reasons that I now resolve this issue in favour of the respondent, against the appellants.
ISSUE TWO:
Whether in the general circumstances of the case, the lower Court had powers and/or jurisdiction to have subjected the Supreme Court judgment allegedly disobeyed to a fresh interpretation of clarification which exercises led to conviction of appellants for contempt of Court and sentence passed on the 2nd appellant.
It is submitted for the Appellants that by the parties’ affidavit and counter-affidavit there was a dispute as to whether some annexures are part of the share purchase agreement (SPA) or not, and instead of referring parties to the Supreme Court for interpretation or clarification, the lower Court on its own resolved the said dispute.
That also having regards to the facts and documents before the lower Court, there was no disobedience of the Supreme Court order by the 2nd Appellant, because the Appellants correctly rejected the introduction of the annexures to the agreement and it is the refusal to acknowledge and accept the documents that provided the platform for the contempt proceedings before the lower Court.
It is also contended that the disagreement between parties on the interpretation of an agreement duly signed by them does not translate to contempt, especially as there was no deliberate disobedience of the order of Court and that the respondent who voluntarily executed the agreement, even though it sought to introduce the annexures, is estopped from alleging that the appellants acted in contempt of the judgment of the Supreme Court and Court of Appeal judgments by their refusal to attach the various documents as annexures. See SUBERU V STATE (2010) 8 NWLR part 1197 page 586.
That the only annexure expressly incorporated into the agreement and forming part of it is the strategic business plan, Exhibit A and also that all the annexures attached cannot be part of the agreement especially in view of clause 19.1 of the agreement which states that “all annexures that form part of the agreement shall be construed in accordance with the provisions of the agreement”.
It is further submitted that contempt being criminal in nature means the burden of proving the allegation beyond reasonable doubt is on the respondent. Section 135 (1) of the Evidence Act and AGBACHOM V STATE (1970) NSCC 62 and ABASS V MOGAJI (2001) 11 SC1.
It is submitted in response that the lower Court merely enforced the judgment of the Supreme Court, and that the share purchase agreement itself made reference to annexures which it qualified in clause 19.0, stating that all annexures that form part of the agreement shall be construed in accordance with the provisions of the agreement, yet the 2nd appellant insisted that the annexures do not form part of the share purchase agreement.
That without the annexures referred to in the share purchase agreement, the agreement will be incomplete, because they give meaning to the SPA and that the trial Court appreciated the relevance of the annexures in properly examining the SPA. See IWUOHA V NRC (1997) 4 NWLR part 500 page 419 and ROYAL EXCHANGE ASSURANCE NIG. LTD V ASWANI TEXTILE INDUSTRIES LTD (1991) 2 NWLR part 176 page 639.
It is further submitted that despite being fully aware of and bound by the unequivocal judgment of the Supreme Court, the Appellants deliberately refused to comply with the positive orders of the Apex Court, a direct affront to the provision of Section 287 (1) of the 1999 Constitution, as amended.
RESOLUTION OF ISSUE TWO:
As a general rule, the judgment of the Supreme Court cannot be subjected to interpretation by a lower Court, as a matter of both fact and law, Court of co-ordinate jurisdiction cannot subject the jurisdiction of another Court for interpretation like a deed or a will, much less the judgment of the Supreme Court. The danger inherent in such a misadventure is the likelihood of distortion, and even a greater danger of jurisdictional erosion or incursion. This should not be confused with the powers of a High Court to correct a slip in a judgment already delivered in the exercise of its general powers under the constitution. See BERLIET (NIG.) LTD. V. KACHALLA (1995) 9 NWLR (PT. 420) 478; FEDERAL PUBLIC TRUSTEE V. MRS. C. A. SOBAMOWO (1967) NMLR 350; ASIYANBI & ORS V. ADENIJI (1967) 1 ALL NLR 82 and ANYASINTI UMUNNA & 5 ORS. V. ANIMUDA OKWURAIWE & 3 ORS. (1978) 6-7 SC 1. Strictly speaking, the bone of contention here is whether the lower Court indeed interpreted the judgment of the Supreme Court in SC. 12/2008, and in doing so led to the conviction of the appellants for contempt.
The Supreme Court apart from the order of perpetual injunction mandated the mutually agreed share purchase agreement for execution by the parties; the 1st Appellant argues that its refusal to accept the annexures was based on the belief that they were unilaterally introduced to the share purchase agreement under the pretext that they are integral to the SPA. See pages 307 to 323 of the record of appeal.
The 2nd Appellant contends he did not disobey the order of the supreme, but that the Respondent made it impossible for him to fully comply with the said order. It is discernable from these entrenched positions taken by the appellants and the Respondent that if the parties were to execute the SPA, and later engage in deciding whether the annexures are part of the SPA or not, as the 2nd Appellant’s letter of the 11th of march, 2019 suggests, then clearly the execution of the PSA will be jeopardized.
It is clear that the two sides started off on a collision course from the onset while Clause 19.0 provides that “…all annexures that form part of this agreement shall be construed in accordance with the provisions of this agreement”, the 2nd Appellant contends that “… annexures do not form part of the mutually agreed SPA the Courts directed parties to execute”.
The importance of the annexures to the SPA are visible notwithstanding the letter of the 5th of February, 2019, i.e. Exhibit G04, at pages 326 to 328 of the record of appeal, which the Appellants saw as hurdles created by the Respondent. The SPA in clause 19.0 clearly expressed that the annexures will be construed in accordance with ITS provisions, and that to all intents and purposes make them integral to the SPA, because without the annexures the SPA will amount to little or next to nothing.
It is submitted for the appellants that the fact that the respondent executed the SPA meant the appellants were not in contempt. It is contended, if the SPA did not represent the judgment of the Supreme Court, the respondent would have declined to execute the agreement. This argument with respect loses sight of the fact that the respondent could very well argue that if the SPA fully represented the judgment, the question of the annexures being part of the SPA would not have arisen, there wouldn’t have been any need to protest their none inclusion in the first place.
The SPA for the avoidance of doubt is at pages 38 to 54 of the additional/supplementary record of appeal, and clauses 6.2,6.3, 6.5, and 8.1 for example incorporated the 2003 audited counts, which the appellants contend does not form part of the SPA as an annexure, just as clause 8 called for determination also by reference to the same 2003 audited account disputed by the 2nd appellant, and especially clause 9.5 which referred to the strategic business plan as an attachment to the SPA, i.e. schedule A.
It is clear that the SPA in various clauses incorporated the annexures, that being so, it is the considered opinion of this Court that without the annexures the SPA cannot be complete in a holistic sense, because the annexures are integral to it.
The lower Court in the face of these clauses appreciated the importance of the annexures, and construed these documents as contemplated by the parties in the SPA, it would have been wrong to look at the document narrowly and that cannot by any stretch of imagination be interpreted as subjecting the judgment of the Supreme Court to a fresh interpretation.
It is contended for the 2nd Appellant that he did not disobey the order of the Supreme Court, but that the Respondent made it impossible for him to fully comply with the said order. To my mind, that in itself is an admission of sorts, that the Appellants did not comply with the orders of the Supreme Court, thus necessitating the contempt proceeding.
On the issue of standard of proof, while it is granted that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt, however, proof beyond reasonable doubt does not mean proof beyond any shadow of doubt. So if the evidence against the accused is so strong as to leave only a remote possibility in his favour which can be dismissed as possible but not improbable, the case is proved beyond reasonable doubt. See AGBO V. STATE (2006) 6 NWLR (PT.9771) 545 SC and UWAGBOE V. STATE (2007) 6 NWLR (PT.1031) 606 It is not the requirement of the law that the alleged crime alleged be established beyond any shadow of doubt. The evidence on offer suffices for the proof of the quasi criminal offence of contempt in the circumstances.
It is for these reasons that I now resolve this issue in favour of the Respondent, against the Appellant.
Having resolved the two issues that call for determination in favour of the Respondent, against the Appellant, the appeal fails for lack of merit. It is accordingly dismissed. Judgment of the trial Court is hereby affirmed.
STEPHEN JONAH ADAH, J.C.A.: I read in draft the judgment just delivered by my learned brother, Mohammed Mustapha, JCA.
I am in full agreement with the reasoning and the conclusion that this appeal is lacking in merit.
By Section 235 of the 1999 Constitution of the Federal Republic of Nigeria, the decision of the Supreme Court, being the apex Court in Nigeria is final. Its finality means every claim and counter-claim ends with the determination of the Supreme Court.
In the case of Adigun & Ors. v. A.G. Oyo State & Ors., (No. 2) (1987) LPELR – 40648 (SC), the Supreme Court per Ego, JSC, held:
“The society can never be stable if there is no such finality in litigation. It is, I respectfully hold desirable to have such finality, notwithstanding the price paid for it. As it is usually put, there must be an end to litigation…”
In pursuit of finality of decisions, Section 287(1) of the Constitution expressly provides thus:
The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons, and by Courts with subordinate jurisdiction to that of the Supreme Court. (Underlining mine for emphasis).
This provision makes it mandatory for all authorities and persons in the country to enforce the decision given by the Supreme Court. The parties in this appeal had issues which run through from the Federal High Court through the Court of Appeal to the Supreme Court. The Supreme Court in SC/12/2008, gave its decision on the claim of the parties in this case on 6th day of July, 2012. What is now in issue is the enforcement of the decision of the Supreme Court.
In this case, the judgment was rendered against the 1st Respondent, a corporation established by law under Section 12(1) of the PUBLIC ENTERPRISES (PRIVATISATION AND COMMERCIALIZATION) ACT, 1998. The 1st Respondent by virtue of Section 12(2) was created as body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name. In furtherance of this, the law in Section 17 thereof made provision for the appointment of a Director-General who shall be the Chief Executive of the Bureau. This provision thence made it explicit that the 1st Respondent is a corporate persona while the 2nd Respondent is its Chief Executive. The law is well settled that a corporation such as the 1st Respondent is an artificial person who being abstract in context can only operate and function through its human agents. The right to take action is in the humans who are managing or running the outfit. The 1st Respondent can only act in the physical through Director-General of the Bureau who incidentally is the 2nd Respondent. The 2nd Respondent is the Director-General and Chief Executive of the 1st Respondent. In that position, the 2nd Respondent is the brain, the heart and the eyes of the Bureau. Where there is an infraction or a wrongful act, the Court is empowered to pierce the veil of incorporation to impose personal liability to such wrongs on the personal running the corporation. In the case of Aminu Musa Oyebanji v. The State (2015) LPELR 24751 (SC), the Supreme Court per Kekere-Ekun, JSC, held that:
“Lifting the “Veil of incorporation” or “piercing the corporate Veil” is defined in Black’s Law Dictionary 9th edition as: “The judicial act of imposing personal liability on otherwise immune corporate officers, directors or shareholders for the corporation’s wrongful acts.”
In the instant case, the lower Court sets out to enforce the judgment of the Supreme Court and the axe fell on Director-General of the 1st Respondent. The person who is charged by the law creating the 1st Respondent with the responsibility of being the Chief Executive of the 1st Appellant (See Section 17(2) of the PUBLIC ENTERPRISES (PRIVATISATION AND COMMERCIALIZATION) ACT. The 2nd Appellant cannot excuse himself from the responsibility of executing orders of the Supreme Court against the 1st Appellant.
I therefore, agree with the reasoning in the lead judgment and also hold that this appeal is lacking in merit. The appeal is accordingly dismissed by me.
KENNETH IKECHUKWU AMADI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, Mohammed Mustapha, JCA. I agree with the reasons given therein and the conclusion reached. I too dismiss this appeal for lacking in merit.
Appearances:
A. U. Mustapha (SAN) with him, S. S. Umoru Esq. and Asinmi Esq. For Appellant(s)
P. I. N Ikwueto (SAN) with him, Alex Ukwueze and C. C. Emekekwe For Respondent(s)