DANSON IZEDONMWEN & ANOR. V. UNION BANK PLC. & ANOR. (2011)

DANSON IZEDONMWEN & ANOR. V. UNION BANK PLC. & ANOR.

(2011)LCN/4919(CA)

In The Court of Appeal of Nigeria

On Monday, the 21st day of November, 2011

CA/L/1205/10

RATIO

RULES OF THE COURT: DUTY OF THE COURT TO BE LIBRAL IN INTERPRETING THE RULES OF THE COURT WHERE STRICT OBSERVANCE OF THE RULES MAY HINDER SUBSTANTIAL JUSTICE

As I set out to consider the arguments of both counsel on the preliminary objection, I am guided by the principle that although the courts are guided by the Rules of Court and the importance of observing same by all parties, it should not unnecessarily sacrifice the need to do substantial justice on the altar of technicality. I agree that Rules of Court are made to be obeyed and indeed should be obeyed. However, where the strict observance of the Rules of Court may lead to injustice on any of the parties, the court should be liberal in interpreting the rules in order to do substantial justice. See Attorney General of Bendel State v. Attorney-General of the Federation (1982) N.C.L.R. 1 at 112 – 113. I need to emphasize that courts are set up to do substantial justice and in the pursuit of substantial justice, all forms of technicalities must be avoided. As much as is possible, all claims must adequately investigated and determined on merit. See Oloruntoba-Oju v. Abdul-Raheem (supra). PER JOHN INYANG OKORO, J.C.A

APPEAL: REQUIREMENTS FOR FILING AN APPEAL IN PURSUANCE OF ORDER 6 RULES 2 AND 3 OF THE COURT OF APPEAL RULES 2011

GROUNDS OF APPEAL: CIRCUMSTANCES WHERE A GROUND OF APPEAL WILL NOT BE SEEN AS DEFECTIVE EVEN WHERE ITS PARTICULARS MAY VERBOSE

In accordance with the Rules of Court, a good ground of appeal must be concise, elegantly drafted and straight to the point such that as soon as it is read, the error and misdirection complained against can be immediately understood. It should not be done in such a way that one forgets the main complaint at the end of reading the particulars. The particulars must relate to and flow from the ground of appeal. Where a ground of appeal cannot stand due to its incompetent particulars, that ground of appeal is defective and it ought to be struck out. See Ogbonnaya v. Ada Palm Nig. Ltd. (1993) 5 N.W.L.R. (Pt.293) 147; Oloruntoba-Oju v. Abdul-Raheem (supra), Ajaokuta Steel Co. Ltd. v. O.O. Biosah Co. Nig. Ltd. (1997) 11 N.W.L.R. (Pt.527) 145.I have carefully perused ground two in the notice of appeal together with its particulars. There is no doubt the said ground challenges a decision of the learned trial Judge. I also note that the ground and the particulars are related. Though the particulars appear a bit verbose, such verbosity has not made the ground unintelligible. Faced with a similar situation, the Apex court in Oloruntoba-Oju v. Abdul-Raheem (supra) at page 121 paras G – H, per Adekeye JSC, said:- “I have gleaned through the grounds of appeal, and the crux of the preliminary objection of the Respondents. I cannot consider any of the grounds defective. The grounds and their particulars are related. The particulars may appear verbose – they are not rendered unintelligible by such verbosity. The particulars still serve their purpose in the appeal which is to elucidate and advance the complaint in the ground. The essence of a ground of appeal and its particulars is to acquaint the Respondent with the issue involved in the appeal – once that purpose is served, a ground of appeal cannot be seen as defective and therefore liable to be struck out together with any issue formulated therefrom.” PER JOHN INYANG OKORO, J.C.A

GROUNDS OF APPEAL: WHETHER A GROUND OF APPEAL CAN CHALLENGE WHAT THE LEARNED TRIAL JUDGE FAILED TO DECIDE OR THAT HE REACHED A WRONG CONCLUSION

A question may be asked. Is the ground attacking what the learned trial Judge failed to decide or that he reached a wrong conclusion? If it is against what the trial court failed to decide, then it cannot stand since an appeal is a challenge against the Judgment of a trial court and it is never predicated on what a court has not decided in its Judgment or Ruling. OR is the alternative that he failed to uphold the argument of the Appellants?. It is trite that a ground of appeal must be precise, unequivocal and must directly attack the validity of the ratio decidendi of the decision appeared against. See Kalu v. Uzor (2006) 8 N.W.L.R. (Pt.981) 66 at 85 paras A – C. This ground is, in my opinion vague, imprecise and it is not the duty of this court to do any surgical operation to save it from hitting the rock. It offends against order 6 Rule 3 of the Rules of this court 2011 which states that “any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be allowed”. PER JOHN INYANG OKORO, J.C.A

GROUNDS OF APPEAL: WHAT IS A VAGUE GROUND OF APPEAL

REPLY BRIEF: OBJECT OF A REPLY BRIEF; CIRCUMSTANCES WHERE A REPLY BRIEF IS UNNECESSARY

The reply brief of the Appellants on this issue, as I can see, is a repetition of their argument in their main brief. That is not the object of a reply brief. A competent reply brief is one which makes clarification on new matters raised in the Respondent’s brief. Where the Respondent has not raised any new legal issue or argument in his brief, a reply brief is unnecessary. In the instant case, the reply brief is a repeat of the Appellants’ argument on this issue. PER JOHN INYANG OKORO, J.C.A

INTERPRETATION OF STATUTE: WHETHER THE WORD “OR” AS USED IN THE SECTION 35(2)(D)(I) AND (D)(II) OF THE BANKS AND OTHER FINANCIAL INSTITUTES ACT 2004 CAN BE READ AS “AND”

It is a trite rule or principle of interpretation of statute that every word used therein must be given effect to and should not be done as if that word is not in the statute. Also, where the words used in a statute are clear and unambiguous, they must be given their ordinary grammatical meaning unless this would lead to absurdity or be in conflict with other provisions of the law. It is the object of interpretation to discover the intension of the law makers which should be deducible from the language used. It is not the duty of the court to ascribe meaning to the clear, plain and unambiguous provisions of a statute in order to make such provisions in line with the court’s own view. See NDIC v. Okem Enterprises Ltd. (2004) 10 N.W.L.R. (Pt.880) 107; Ifezue v. Mbadugha (1984) 15 NSCC 314; Aminu Tanko v. The State (2009) 4 NSCR 91 at 124. By Section 18(3) of the Interpretation Act, cap 123 Laws of the Federation of Nigeria, 2004, the word “OR” in any enactment is to be construed disjunctively. The Black’s Law Dictionary, sixth Edition, defines the word “OR” as a “disjunctive particle used to express an alternative or to give a choice of one among two or more things”. The Apex court in Inakoju v. Adeleke (2007) 4 N.W.L.R. (Pt.1025) 423 at 612 affirmed these interpretations given to the word “OR” thus, Per Tobi, JSC:- “Section 16 is one long sentence of 206 words with seven comas and the traditional one sentence full stop. It also consists of eight “ors” – the disjunctive particle conjunction and seven conjunctive “ands”. The disjunctive particle generally expresses or marks an alternative in a statute. It indicates or gives a choice of one among two or more things. The word plays a functional role and therefore, a functional word so to say to depict or show an alternative between different or unlike things”‘ There is no doubt that the general and ordinary meaning usually attached to the word “OR” in an enactment is to see it disjunctively whereby one is given an alternative or a choice of one among two or more things, see also Abia State University v. Anyaike (1996) 3 N.W.L.R. (Pt.439) 649 at 661 and Savannah Bank v. Starite Industries Overseas Corporation & 2 Ors. (2001) 1 N.W.L.R. (Pt.693) 194 at 211. The above interpretation given to the word “OR” is not the end of the story. As was clearly stated by the learned counsel for the Appellants and corroborated by counsel for the Respondents, both agreeing with the position taken by the learned trial Judge, it has been recognized that in some situations, it may read to an absurdity to construe the word “OR” as a disjunctive. In such instances, the word “OR” is read as “AND” and vice versa. It should be noted that for the court to modify the word “OR” in a statute to read “AND”‘ it must be demonstrated that construing the word disjunctively would lead to manifest absurdity or conflict with other parts of the statute. The Apex Court has given judicial blessing to the above position. In Kabirikim v. Emefor (2009) 14 N.W.L.R. (Pt.1162) 602 at 623 para. 11, the Supreme Court, per Onnoghen, JSC stated that:- “It is now settled that the word “OR” is disjunctive depending on the con as under certain circumstances the word ”AND” would be read in place of “OR” so as to carry out the intention of the legislature” . See also S. Tarka v. DPP (1961) NNLR 63; Federal Steam Navigation Co. v. Department of Trade (1974) 2 All ER 97. Also in Ndoma Egba v. Chukwuogor (2004) 6 N.W.L.R. (Pt.869) 382 at 409 para E, the Apex Court, per Uwaifor, JSC, held that:- “In ordinary usage the word “OR” is disjunctive and “AND” is conjunctive but it is conceded that there are situations which would make it necessary to read “AND” in place of “OR” and vice versa. This may occur in order to carry out the intention of the legislature … to avoid absurd and impracticable results”. Based on the above, can it be said that the law maker intended the CBN Governor to remove a director or directors of a failing bank and not replace them with other directors appointed by him? OR was he intended to appoint directors into a failing bank without first removing the offending directors? What really could be said to be the intention of the legislature in the circumstance? In coming to a conclusion, I am guided by the need to avoid an “absurd and impracticable result”. The first thing I want to say is that by Section 35(1) of the Act, the CBN Governor is empowered to exercise any one or more of the powers specified in sub-section (2) of Section 35 of the Act. To interpret the word “OR” which separates subsection (2)(d)(i) and (d)(ii) disjunctively, will, in my opinion, lead to a serious conflict with other parts of the statute. In view of the fact that subsection (1) of Section 35 gives CBN Governor the power to do “any one or more of the powers specified in sub-section (2)” of Section 35 of the Act, I am well fortified to conclude that this is one of such situations where the word “OR” as used in the section can be read as “AND”. This interpretation is in consonance with subsection (1) of section 35 already stated. This gives a harmonious relationship between the two subsections. To hold otherwise will read to an absurdity. See Ndoma-Egba v. Chukwuogor (supra). Moreover, I do agree with the court below that the legislative intent underpinning the provisions of section 35 of the Act is the ability of the CBN Governor to provide a failing bank with the necessary managerial and operational support to facilitate the bank’s turnaround. That being the case, a medical doctor who after successfully carrying out an operation on his patient, leaves him to bleed to death cannot be said to have rescued the patient from the illness. After the operation, the Doctor has to take all necessary steps to stop the bleeding and manage the wound until it heals. I do not think that the legislature intends the CBN Governor to remove ailing directors and then leave the bank to bleed to death. OR that the CBN Governor should appoint new directors to work with those who have run the bank aground. That would lead to impracticable results. The phrase “notwithstanding anything in any written law or any limitations contained in the memorandum and articles of association of the bank” in section 35(2)(d) clearly shows that in the exercise of the powers conferred on the CBN Governor, the memorandum and articles of association of the bank in respect of the minimum or maximum number of directors are of no moment. Therefore, the argument by the learned counsel for the Appellant that the legislature intended the CBN Governor to perform one of the two functions of either removing or appointing directors and leaving the other for the share holders to perform is untenable. Another argument that by performing both functions, the CBN Governor is usurping the powers of the Nigeria Deposit Insurance Corporation (NDIC), to say the least, is not persuasive. Section 36 of the Act (BOFIA) requires the CBN to hand over a grave situation bank to the NDIC after taking the steps stipulated in Section 35 thereof or any other such measures as in the opinion of the CBN may be appropriate. The phrase “such other measure as in the opinion of the Bank may be appropriate”, in section 36 of BOFIA speaks of the statutory discretion vested in the CBN Governor and the Apex Bank to rescue a bank in a grave situation. On a final note on this issue, I wish to implore members of the public to have implicit confidence with institutions of government including persons appointed to head such institutions. Also, individuals who are entrusted with positions of authority to determine the fate of others should hold such office as a public trust with transparency in their actions as key in order to staff off the suspicions of members of the public concerning every step they take. This will ward off the kind of fear expressed by the Appellants in this case that a conjunctive interpretation of the word “OR” in Section 35(2)(d)(i) and (ii) may give the CBN Governor the power to sack the entire board of directors of a bank and reconstitute it with “his own favoured persons”. I think Section 150 of the Evidence Act which gives presumption of regularity of the acts of a public officer covers the actions of the CBN Governor, himself being a public officer. On the whole, I am satisfied that the word “OR” separating Section 35(2)(d)(i) and (ii) of BOFIA having regard to other sections of the Act and the need to give it a harmonious relationship and banish any absurdity, ought to be given a conjunctive reading in this matter. Issue two, therefore, is resolved against the Appellants. PER JOHN INYANG OKORO, J.C.A

JUSTICES

HELEN MORENIKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

Between

1. DANSON IZEDONMWEN
2. EDITH IZEDONMWEN Appellant(s)

AND

1. UNION BANK PLC.
2. FUNKE OSIBODU (For herself and as representing the persons appointed to the Board of the 1st Respondent by the Governor of the Central Bank) Respondent(s)

JOHN INYANG OKORO, J.C.A: (Delivering the Leading Judgment): The Appellants, who were Applicants at the court below, commenced the action giving birth to this appeal at the Federal High court via an originating summons dated and filed on 4th December, 2009 pursuant to section 300 of the Companies and Allied Matters Act, Cap C20 Laws of the Federation of Nigeria 2004 referred to as CAMA. In it the Appellants prayed the court for the following orders:-
“1. An order of injunction restraining the 1st Respondent from parading or continuing to parade the 2nd Respondents or otherwise permitting the 2nd Respondents to act or continue to act or to parade or continue to parade themselves as the Managing Director and Executive Directors or other Directors respectively of the 1st Respondent and particularly to sit or act or continue to sit or act in such capacity at any purported Meeting of the Board of Directors or Annual General Meeting or other General Meeting of the 1st Respondent
2. An order of injunction restraining the 1st Respondent from holding or purporting to hold the Annual General Meeting of the company which has been schedule for the 15th day of December, 2009 or any other Annual General Meeting or General Meeting of the Company whereat the 2nd Respondents or any of them shall sit or act or be recognized or paraded as the Managing Director or Executive Director or other Director of the 1st Respondent.
3. An order nullifying or setting aside any decision or purported decision of the purported Annual General Meeting of the 1st Respondent scheduled for the 15th day of December, 2009 or any decision or purported decision or any other such Annual General Meeting of the 1st Respondent particularly any approval of any statement of accounts of the company and/or any proposal of any investment or purchase of shares into or of the company by any person or persons, an/or any ratification or purported ratification of the appointment of the 2nd Respondents or any of them into the board of the 2nd Respondents or any of them into the Board of Directors of the 1st Respondent.
4. An order nullifying decision or purported decision of any meeting or purported meeting of the Board of Directors of the company whereat the 2nd Respondents or any of them sat or acted or was recognized or paraded as the Managing Director or Executive Director or other Director of the 1st Respondent particularly, any approval for any statement of account of the company and/or any proposal for any investment or purchase of shares into or of the company by any person or persons.”
On receipt of the above process, the Respondents entered conditional appearance on 30th July, 2010 and filed their counter affidavit and a written address opposing the Appellants’ originating summons on the same date.
After hearing both parties in this matter, the learned trial Judge delivered his Judgment on the 25th day of October 2010 wherein he dismissed the Appellants’ claims against the Respondents.
Dissatisfied with the stance of the learned trial Judge, the Appellants filed Notice of Appeal on 11th November, 2010. The said Notice of Appeal contains three grounds of appeal from which the Appellants have distilled three issues for the determination of this appeal. The issues are as stated hereunder:-
“1. Was the learned Judge below right to have refused or neglected to determine and uphold the contention of the Appellants that the CBN Governor has no power under the law to designate any appointee of his into the Board of Directors of a bank, managing director or executive director with responsibility for day-to-day management of all or any arm of the business of the bank, and that having so exceeded his powers the appointments were altogether bad, null and void, and in consequence the 2nd Respondent and her colleagues constituted persons not duly appointed directors under Section 244(3) and (4) of the Companies and Allied Matters Act? (Ground 3).
2. Having regard to the con of the whole of Section 35(2) and then 36 – 38 of the Banks and other Financial Institutions Act, was the learned Judge correct in his view that the word “OR” separating Section 35(2)(d)(i) and 35(2)(d)(ii) of the Act should be read as “AND”, and that in consequence the CBN Governor is given power both to remove directors of a bank and to appoint other directors in place of those removed? (Ground 2).
3. Was the learned Judge below correct to have struck out paragraphs 1 – 12 of the affidavit of the Plaintiffs in support of the action, or in his view that there were no averments in the affidavit to support the action? (Ground 3)”.
Although the Respondents made submissions on all the issues distilled by the Appellants, it is his contention that this appeal can conveniently be determined on the sore issue formulated by them from Ground 1 in the Notice of Appeal. The sole issue of the Respondent states:
“Whether the lower court was right in striking out .paragraphs 2 – 12 of the affidavit ii support of Appellants’ originating summons”.
When the appeal came up for hearing on 13th September, 2011, the learned counsel for the Respondent, O. Opasanya Esq., leading other counsel, drew the courts attention to the Notice of Preliminary objection filed by the Respondents on 5th July, 2011 and argued on pages 3 -7 of his brief.
Generally, whenever Notice of Preliminary Objection is given in a matter, it is customary in this court to hear and determine the issues raised therein before venturing into the substantive issues if need be. The wisdom embedded in this practice is obvious as some matters may be determined on the preliminary issues without the need to go into the main appeal. Accordingly, I shall determine the objection raised in the said Notice.
The Notice of Preliminary objection filed on 5/7/11 is for the following relief:-
“AN ORDER striking out grounds 2 and 3 in the Notice of Appeal dated 11:11:10”.
The grounds upon which the preliminary objections are anchored are that:-
“1. Ground 2 in the Notice of Appeal is argumentative and verbose; and
2. Ground 3 is imprecise and equivocal”.
The position of the learned counsel for the Respondents is that grounds 2 and 3 in the Appellants’ Notice of Appeal are incompetent as they offend the provisions of Order 6 Rule 2(2) & (3) and Order 6 Rule 3 of the Court of Appeal Rules, 2011. That a perusal of particulars (a) – (e) of ground 2 will show that these particulars are argumentative, verbose and ought not to be in the Appellants’ Notice of Appeal but in their brief of argument. It was his further contention that the defects in the particulars of ground 2 have infested the said ground and is liable to be struck out, citing and relying on the case of A.S.R. Co. Ltd. v. O.O. Biosah & Co. Ltd. (1997) 11 N.W.L.R. (Pt.527) 145 at 156, paras F – G.
Learned counsel further submitted that ground 3 is incompetent given that the ground of appeal is imprecise and equivocal. That the ground is ambiguous as it is not clear from the words used in the said ground whether the Appellants’ complaint is that the lower court failed to consider the relevant issue or reached a wrong decision on the issue. A ground of appeal, he opined, must attack the validity of the ratio decidendi of a decision appealed against. He relies on the case of Oloruntoba-Oju & Ors. v. Abdul-Raheem & Ors. (2009) 13 N.W.L.R. (Pt.1157) 53 at 121 paras B – C and Kalu v. Uzor (2006) 8 N.W.L.R. (Pt.981) 66 at 85 paras A – C. The resultant effect, according to learned counsel is that the two grounds of appeal ought to be struck out.
It was the final submission of the learned counsel for the Respondents that issues one and two which are distilled from grounds 2 and 3 respectively should be struck out as they lack no legal foundation. He relies on the case of Nwankwo & Anor. v. (EDSC) U.A. (2007) 1 – 2 SC 145 at 161. Consequently, he urged this court to uphold the preliminary objection and disregard the arguments made in the two issues in the Appellants’ brief.
In his reply, the learned counsel for the Appellants submitted that the only valid complaint that can be made against a ground of appeal or its particulars is that it is incomprehensible or that the particulars do not relate to the ground. That the Respondents have not said they have not understood what the complaint in the ground is about. On ground 2, he submitted specifically that the particulars which the Respondents complain of have the object of elucidating and advancing the complaint made on the ground so that the Respondents are put in effective notice and depth of the issue involved in it. He relies on the case of Oloruntoba-Ojo v. Abdulraheem (2009) 13 N.W.L.R. (Pt.1157) 83 at 121 – 122.
Learned counsel further submitted that even without the aid of the particulars being complained of by the Respondents’ the ground of appeal can still stand on its own being sufficiently clear as to the error of law being complained of, relying on the case of Ukpong v. Commissioner for Finance (2006) 19 N.W.L.R. (Pt.1013) 187 at 211.
On ground 3, he submitted that a party is in law permitted to claim, plead or argue two or more reliefs or issues cumulatively and in the alternative. Relying on the case of Oloruntoba-Oju v. Abdul-Raheem (Supra) he urged this court to hold that ground 3 is not vague. He also urged this court not to allow technicality to defeat the ends of justice citing the case of A.G. Bendel State v. A.G. Federation (1982) 3 N.C.L.R. 1 and Inakoju v. Adeleke (2002) 4 N.W.L.R. (Pt.1025) 423. He urged this court to dismiss the preliminary objection.
As I set out to consider the arguments of both counsel on the preliminary objection, I am guided by the principle that although the courts are guided by the Rules of Court and the importance of observing same by all parties, it should not unnecessarily sacrifice the need to do substantial justice on the altar of technicality. I agree that Rules of Court are made to be obeyed and indeed should be obeyed. However, where the strict observance of the Rules of Court may lead to injustice on any of the parties, the court should be liberal in interpreting the rules in order to do substantial justice. See Attorney General of Bendel State v. Attorney-General of the Federation (1982) N.C.L.R. 1 at 112 – 113.
I need to emphasize that courts are set up to do substantial justice and in the pursuit of substantial justice, all forms of technicalities must be avoided. As much as is possible, all claims must adequately investigated and determined on merit. See Oloruntoba-Oju v. Abdul-Raheem (supra).
on merit. See Oloruntoba-Oju v. Abdul-Raheem (Supra).

By Order 6 Rule 2 of the Court of Appeal Rules 2011, all appeals to this court shall be by way of rehearing and by notice of appeal filed in the Registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of, and in the later case, specifying such part and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal. The notice shall be accompanied by a sufficient number of copies for service on all such parties and shall also have endorsed on it an address for service.
By the said paragraph also, where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated. Again, the notice of appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
Order 6 Rule 3 thereof provides that any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the Judgment is against the weight of evidence, and any ground of appeal or any part thereof which is not permitted under the Rules of Court may be struck out by the court of its own motion or on application by the Respondent.
For ease of reference, I shall reproduce the two grounds of appeal, complained of without their particulars.
“GROUND 2
The learned Judge below erred in law when he held that the word “OR” in Section 35(2)(d) of the Banks and Other Financial Institutions Act (BOFIA) should be read as “AND” and that in consequence the Governor of Central Bank (CBN Governor) is empowered under the provision of that paragraph to remove directors of a bank and appoint other directors in their place.
GROUND 3
The learned Judge below erred in law when he failed to decide on and/or uphold the claim or argument of the Appellants that the CBN Governor is not empowered to designate any appointee of his into the board of any bank as executive director or to appoint any one into an executive or managerial position, including that of managing director in any bank”.
In accordance with the Rules of Court, a good ground of appeal must be concise, elegantly drafted and straight to the point such that as soon as it is read, the error and misdirection complained against can be immediately understood. It should not be done in such a way that one forgets the main complaint at the end of reading the particulars. The particulars must relate to and flow from the ground of appeal. Where a ground of appeal cannot stand due to its incompetent particulars, that ground of appeal is defective and it ought to be struck out. See Ogbonnaya v. Ada Palm Nig. Ltd. (1993) 5 N.W.L.R. (Pt.293) 147; Oloruntoba-Oju v. Abdul-Raheem (supra), Ajaokuta Steel Co. Ltd. v. O.O. Biosah Co. Nig. Ltd. (1997) 11 N.W.L.R. (Pt.527) 145.I have carefully perused ground two in the notice of appeal together with its particulars. There is no doubt the said ground challenges a decision of the learned trial Judge. I also note that the ground and the particulars are related. Though the particulars appear a bit verbose, such verbosity has not made the ground unintelligible. Faced with a similar situation, the Apex court in Oloruntoba-Oju v. Abdul-Raheem (supra) at page 121 paras G – H, per Adekeye JSC, said:-
“I have gleaned through the grounds of appeal, and the crux of the preliminary objection of the Respondents. I cannot consider any of the grounds defective. The grounds and their particulars are related. The particulars may appear verbose – they are not rendered unintelligible by such verbosity. The particulars still serve their purpose in the appeal which is to elucidate and advance the complaint in the ground. The essence of a ground of appeal and its particulars is to acquaint the Respondent with the issue involved in the appeal – once that purpose is served, a ground of appeal cannot be seen as defective and therefore liable to be struck out together with any issue formulated therefrom.”
As I said earlier, ground 2 is very clear as to which part of the Judgment it is attacking. I think the only complaint against this ground is that the particulars are verbose and argumentative. I do not agree that it is completely argumentative. All the particulars try to do is to elucidate and advance the complaint in the ground, though in the process, it becomes a bit verbose. But since the ground and particulars are related and nobody is misled as to what is complaint, I shall and do hereby hold that ground 2 is competent and the issue formulated therefrom has not suffered from any virus whatsoever.
Ground 3 appears to be heading to the rocks. A question may be asked. Is the ground attacking what the learned trial Judge failed to decide or that he reached a wrong conclusion? If it is against what the trial court failed to decide, then it cannot stand since an appeal is a challenge against the Judgment of a trial court and it is never predicated on what a court has not decided in its Judgment or Ruling. OR is the alternative that he failed to uphold the argument of the Appellants?. It is trite that a ground of appeal must be precise, unequivocal and must directly attack the validity of the ratio decidendi of the decision appeared against. See Kalu v. Uzor (2006) 8 N.W.L.R. (Pt.981) 66 at 85 paras A – C. This ground is, in my opinion vague, imprecise and it is not the duty of this court to do any surgical operation to save it from hitting the rock. It offends against order 6 Rule 3 of the Rules of this court 2011 which states that “any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be allowed”.

A vague ground of appeal is, one which is couched in a manner which does not give allowance for its being understood, or where what is stated there is so uncertain and robs it of any form of intelligibility. It may also be vague when the complaint is not defined in relation to the subject-matter or the particulars are clearly irrelevant to the grounds. See Oloruntoba-Oju v. Abdul-Raheem (supra). I hold that Ground 3 is infested with this virus. Accordingly, I agree that Ground 3 is incompetent and is accordingly struck out. Both issues 1 distilled from the said incompetent ground and the arguments thereof are hereby discountenanced. The preliminary objection therefore succeeds in part.
As it stands, grounds of appeal Nos. 1 and 2 are preserved being competent. I shall determine this appeal based on issues 2 and 3 distilled from grounds 2 and 1 respectively.
ISSUE 1: Struck out.
ISSUE 2:
Issue two has to do with the interpretation or meaning and import of the word “OR” which separates Section 35(2)(d) and Section 35(2)(d)(ii) of the Banks and other Financial Institutions Act, Cap 83 Vol. 2 Laws of the Federation of Nigeria 2004. Referring to section 18 of the Interpretation Act and the case of Savannah Bank v. S.I.O Corporation (2001) N.W.L.R. (Pt.693) 194 at 211, the learned counsel for the Appellants submitted that the word “OR” which separates paragraph (d)(i) and (d)(ii) of section 35(2) of BOFIA should be construed disjunctively. That the word “OR” should be interpreted as expressing an alternative i.e. a choice between proceeding under (d)(i) or (d)(ii) and never under both at the same time. He refers further to the cases of Abia State University v. Anyaibe (1996) 3 N.W.L.R. (Pt.439) 649; Inakoiu v. Adeleke (2007) 4 N.W.L.R’ (Pt.1025) 423 at 612.
It was his further contention that paragraph (d) of section 35(2) contains just one power expressed in the alternatives of (d)(i) and (d)(ii) to preserve for the company a right to appoint a replacement where the CBN Governor removes a director or a right to retain its own directors where the Governor chooses, instead, to appoint a director or directors.
Learned counsel however concedes that in some situations’ it may lead to some absurdity to construe the word “OR” as a disjunctive. That in such instances, the word “OR” may be read as “AND” and vice versa as was noted by the court below.
Picking holes with the decision of the learned trial Judge that interpreting the word
“OR” disjunctively would impair the legislative intent underpinning the provisions of section 35 of the Act which is the ability of the CBN Governor to provide a failing bank with the necessary managerial and operational support to facilitate the bank’s turn-around, the learned counsel for the Appellant submitted that no court is allowed to alter the wording of a statute to accord with what it perceives to be sound policy. He relies on these cases: Aminu Tanko v. The State (2009) 4 NSCR 91 at 124 para B; Ifezue v. Mbadugha (1984) 15 NSCC 314 at 324 Para 35.
Arguing further, on the issue, he submitted that modifying the word “OR” in Section 35(d)(ii) to read “AND” may not achieve the effect of crediting in the paragraph two powers, either or both of which may be exercised by the CBN Governor, which is the effect that the learned trial judge had in mind. That introducing the word “AND” between Section 35(d)(ii) and 35(d)(ii), particularly against the background that the word is not used anywhere in Section 35(2) to separate one paragraph or power from the other, will have the effect of joining sub-paragraphs (d)(i) and (d)(ii) in such a manner that the two powers mush be exercised together for any exercise of power under the paragraph to be valid or competent.
Learned counsel further contended that the danger in importing the word “AND” in place of “OR” is that the desire to take over a particular bank by appointing his own favoured persons to constitute the management of the bank might impel the CBN Governor to act rather than his objective perception of what is best for the bank and its state holders. This, he opined would spell instability for the banking industry as compelling interests would have found a new platform to upstage one another. Also, that where the CBN Governor takes over control and management of a bank, through agents appointed by him, difficulties will be created as to the role reserved to the Nigeria Deposit Insurance Corporation (NDIC) under Section 36 of the Act.
In conclusion, learned counsel referred to section 55 of BOFIA and urged this court to apply such interpretation of any provision of BOFIA as will preserve any right granted by CAMA where such interpretation is possible and in this case, the right of shareholders to appoint directors removed by the CBN Governor. He then urged this court to resolve this issue in favour of the Appellants.
In reply to the Appellants’ submission on this issue, the learned counsel for the Respondents submitted that by virtue of the provision of section 35(2)(d) of BOFIA, the CBN Governor has the power to remove directors of a bank where the situation so demands and is also empowered to appoint directors in place of the directors removed by him. Also, that Section 35(i) of the Act expressly empowers the CBN Governor to exercise any one or more of the powers specified in subsection 2 of that section. That the power to replace a removed director of a bank is incidental to the power to remove a director’ He refers to section 11(i)(b) of the Interpretation Act Cap 123 Laws of the Federation of Nigeria, 2004.
The Respondents’ counsel further states that a disjunctive interpretation of the provisions of section 35(2)(d)(i) & 2(d)(ii) will lead to an absurdity of putting the CBN Governor in an invidious position where he determines that all the directors of a bank are responsible for running a bank aground and can only remove and not replace them. This may have more devastating consequences for the affected bank, he opined
It is his further contention that in certain circumstances, the word “OR” may be given a conjunctive interpretation with the use of the word “AND” which he submitted is appropriate in the present situation. He cites the following cases: S. Tarka v. DPP (1961) N.N.L.R. 63; Federal Steam Navigation Co. v. Department of Trade (1974) 2 All ER 97; Kabirikim v. Emefor (2009) 14 N.W.L.R. (Pt.1162) 602 at 623 para H; Ndoma-Egba v. Chukwogor (2004) 6 N.W.L.R. (Pt.869) 382 at 409 para E.
Arguing further, learned counsel submitted that the Appellants’ contention that a conjunctive interpretation of Section 35(2)(d)(i) & (ii) may give the CBN Governor the power to sack the entire board of directors of a bank and constitute it with “his own favoured persons’ pales in the face of the presumption of regularity under Section 150 of the Evidence Act of the acts of the CBN Governor as a public officer.
Moreover, on the contention that the CBN Governor may unwittingly usurp the power of NDIC under Section 36 of the Act if allowed to remove and appoint directors at the same time, he submitted that the CBN Governor can only hand over a bank to the NDIC if his intervention does not return the bank to sanity.
Finally, that the phrase, “such other measures as in the opinion of the Bank may be appropriate” in Section 35 of BOFIA speaks for the statutory discretion vested on the CBN Governor and the Apex Bank to rescue a bank in a grave situation. He urged this court to resolve this issue against the Appellants.
The reply brief of the Appellants on this issue, as I can see, is a repetition of their argument in their main brief. That is not the object of a reply brief. A competent reply brief is one which makes clarification on new matters raised in the Respondent’s brief. Where the Respondent has not raised any new legal issue or argument in his brief, a reply brief is unnecessary. In the instant case, the reply brief is a repeat of the Appellants’ argument on this issue. Be that as it may, I shall leave it there for whatever it is worth.
As I indicated earlier, the main issue herein is the interpretation to be given to the word “OR” separating Section 35(2)(d)(i) and Section 35(2)(d)(ii) of the Banking and Other Financial Institutions Act, 2004. For ease of reference, I shall straight away reproduce the relevant sections here.
“35. Failing Bank
(1) Where a bank informs the Bank that-
(a) It is likely to become unable to meet its obligations under this Act; or
(b) It is about to suspend payment to any extent, or
(c) It is insolvent; or
(d) Where, after an examination under Section 33 of this Act or otherwise howsoever, the Bank is satisfied that the bank is in a grave situation as regards the matter referred to in Section 33(i) of this Act;
The Governor may by order in writing exercise any or more of the powers specified in subsection (2) of this section.
(2) The Governor may by order in writing under subsection (i) of this section-
(a) prohibit the bank from extending any further credit facility for such period as may be set out in the order, and make the prohibition subject to such exception, and impose such conditions in relation to the exceptions as may be set out in the order; and from time to time, by further order similarly made, extend the aforesaid period;
(b) require the bank to take any steps or any action or to do or not to do any act or thing whatsoever, in relation to the bank or its business or its directors or officers which the Bank may consider necessary and which is set out in the order; within such times as may be stipulated therein;
(c) remove for reasons to be recorded in writing with effect from such date as may be set out into eh order any manager or officer of the bank, notwithstanding anything in any written law, or any limitations contained in the memorandum and articles of association of the bank;
(d) in respect of a bank, notwithstanding anything in any written law or any limitations contained in the memorandum or articles of association of the bank, and in particular, notwithstanding any limitation therein as to the minimum or maximum number of directors, for reasons to be recorded in writing-
(i) remove from office, with effect from such date as may be set out in the order, any director of the bank, or
(ii) appoint any person or persons as a director or directors of the bank, and provide in the order for the person or persons so appointed to be paid by the bank such remuneration as may be set out in the order;
(e) appoint any person to advise the bank in relation to the proper conduct of its business, and provide in the order for the person so appointed to be paid by the bank such remuneration as may be set out in the order.”
The issue before this court is a narrow one, that is the meaning of the word “OR” used to separate section 35(2)(d)(i) and (d)(ii) of the Banks and other Financial Institutes Act 2004. Both parties agree that the Governor of the central Bank, by section 35 of the Act has power to appoint a director or directors into the board of a distressed or failing bank. They also agree that the Act empowers him to remove from office a director or directors of the said bank. What they however disagree is whether he can perform both functions at the same time. Whereas the Appellants insist he does not have such powers, the Respondents contend otherwise. This calls for interpretation by this court. The learned trial Judge held that the CBN Governor has power to perform both at the same time. Was he right?
It is a trite rule or principle of interpretation of statute that every word used therein must be given effect to and should not be done as if that word is not in the statute. Also, where the words used in a statute are clear and unambiguous, they must be given their ordinary grammatical meaning unless this would lead to absurdity or be in conflict with other provisions of the law. It is the object of interpretation to discover the intension of the law makers which should be deducible from the language used. It is not the duty of the court to ascribe meaning to the clear, plain and unambiguous provisions of a statute in order to make such provisions in line with the court’s own view. See NDIC v. Okem Enterprises Ltd. (2004) 10 N.W.L.R. (Pt.880) 107; Ifezue v. Mbadugha (1984) 15 NSCC 314; Aminu Tanko v. The State (2009) 4 NSCR 91 at 124.

By Section 18(3) of the Interpretation Act, cap 123 Laws of the Federation of Nigeria, 2004, the word “OR” in any enactment is to be construed disjunctively. The Black’s Law Dictionary, sixth Edition, defines the word “OR” as a “disjunctive particle used to express an alternative or to give a choice of one among two or more things”. The Apex court in Inakoju v. Adeleke (2007) 4 N.W.L.R. (Pt.1025) 423 at 612 affirmed these interpretations given to the word “OR” thus, Per Tobi, JSC:-
“Section 16 is one long sentence of 206 words with seven comas and the traditional one sentence full stop. It also consists of eight “ors” – the disjunctive particle conjunction and seven conjunctive “ands”. The disjunctive particle generally expresses or marks an alternative in a statute. It indicates or gives a choice of one among two or more things.
The word plays a functional role and therefore, a functional word so to say to depict or show an alternative between different or unlike things”‘
There is no doubt that the general and ordinary meaning usually attached to the word “OR” in an enactment is to see it disjunctively whereby one is given an alternative or a choice of one among two or more things, see also Abia State University v. Anyaike (1996) 3 N.W.L.R. (Pt.439) 649 at 661 and Savannah Bank v. Starite Industries Overseas Corporation & 2 Ors. (2001) 1 N.W.L.R. (Pt.693) 194 at 211.

The above interpretation given to the word “OR” is not the end of the story. As was clearly stated by the learned counsel for the Appellants and corroborated by counsel for the Respondents, both agreeing with the position taken by the learned trial Judge, it has been recognized that in some situations, it may read to an absurdity to construe the word “OR” as a disjunctive. In such instances, the word “OR” is read as “AND” and vice versa. It should be noted that for the court to modify the word “OR” in a statute to read “AND”‘ it must be demonstrated that construing the word disjunctively would lead to manifest absurdity or conflict with other parts of the statute. The Apex Court has given judicial blessing to the above position.
In Kabirikim v. Emefor (2009) 14 N.W.L.R. (Pt.1162) 602 at 623 para. 11, the Supreme Court, per Onnoghen, JSC stated that:-
“It is now settled that the word “OR” is disjunctive depending on the con as under certain circumstances the word ”AND” would be read in place of “OR” so as to carry out the intention of the legislature” .
See also S. Tarka v. DPP (1961) NNLR 63; Federal Steam Navigation Co. v. Department of Trade (1974) 2 All ER 97. Also in Ndoma Egba v. Chukwuogor (2004) 6 N.W.L.R. (Pt.869) 382 at 409 para E, the Apex Court, per Uwaifor, JSC, held that:-
“In ordinary usage the word “OR” is disjunctive and “AND” is conjunctive but it is conceded that there are situations which would make it necessary to read “AND” in place of “OR” and vice versa. This may occur in order to carry out the intention of the legislature … to avoid absurd and impracticable results”.
Based on the above, can it be said that the law maker intended the CBN Governor to remove a director or directors of a failing bank and not replace them with other directors appointed by him? OR was he intended to appoint directors into a failing bank without first removing the offending directors? What really could be said to be the intention of the legislature in the circumstance? In coming to a conclusion, I am guided by the need to avoid an “absurd and impracticable result”. The first thing I want to say is that by Section 35(1) of the Act, the CBN Governor is empowered to exercise any one or more of the powers specified in sub-section (2) of Section 35 of the Act. To interpret the word “OR” which separates subsection (2)(d)(i) and (d)(ii) disjunctively, will, in my opinion, lead to a serious conflict with other parts of the statute. In view of the fact that subsection (1) of Section 35 gives CBN Governor the power to do “any one or more of the powers specified in sub-section (2)” of Section 35 of the Act, I am well fortified to conclude that this is one of such situations where the word “OR” as used in the section can be read as “AND”. This interpretation is in consonance with subsection (1) of section 35 already stated. This gives a harmonious relationship between the two subsections. To hold otherwise will read to an absurdity. See Ndoma-Egba v. Chukwuogor (supra).

Moreover, I do agree with the court below that the legislative intent underpinning the provisions of section 35 of the Act is the ability of the CBN Governor to provide a failing bank with the necessary managerial and operational support to facilitate the bank’s turnaround. That being the case, a medical doctor who after successfully carrying out an operation on his patient, leaves him to bleed to death cannot be said to have rescued the patient from the illness. After the operation, the Doctor has to take all necessary steps to stop the bleeding and manage the wound until it heals. I do not think that the legislature intends the CBN Governor to remove ailing directors and then leave the bank to bleed to death. OR that the CBN Governor should appoint new directors to work with those who have run the bank aground. That would lead to impracticable results.

The phrase “notwithstanding anything in any written law or any limitations contained in the memorandum and articles of association of the bank” in section 35(2)(d) clearly shows that in the exercise of the powers conferred on the CBN Governor, the memorandum and articles of association of the bank in respect of the minimum or maximum number of directors are of no moment. Therefore, the argument by the learned counsel for the Appellant that the legislature intended the CBN Governor to perform one of the two functions of either removing or appointing directors and leaving the other for the share holders to perform is untenable.
Another argument that by performing both functions, the CBN Governor is usurping the powers of the Nigeria Deposit Insurance Corporation (NDIC), to say the least, is not persuasive. Section 36 of the Act (BOFIA) requires the CBN to hand over a grave situation bank to the NDIC after taking the steps stipulated in Section 35 thereof or any other such measures as in the opinion of the CBN may be appropriate. The phrase “such other measure as in the opinion of the Bank may be appropriate”, in section 36 of BOFIA speaks of the statutory discretion vested in the CBN Governor and the Apex Bank to rescue a bank in a grave situation.

On a final note on this issue, I wish to implore members of the public to have implicit confidence with institutions of government including persons appointed to head such institutions. Also, individuals who are entrusted with positions of authority to determine the fate of others should hold such office as a public trust with transparency in their actions as key in order to staff off the suspicions of members of the public concerning every step they take. This will ward off the kind of fear expressed by the Appellants in this case that a conjunctive interpretation of the word “OR” in Section 35(2)(d)(i) and (ii) may give the CBN Governor the power to sack the entire board of directors of a bank and reconstitute it with “his own favoured persons”. I think Section 150 of the Evidence Act which gives presumption of regularity of the acts of a public officer covers the actions of the CBN Governor, himself being a public officer.

On the whole, I am satisfied that the word “OR” separating Section 35(2)(d)(i) and (ii) of BOFIA having regard to other sections of the Act and the need to give it a harmonious relationship and banish any absurdity, ought to be given a conjunctive reading in this matter. Issue two, therefore, is resolved against the Appellants.
The 3rd and last issue in the Appellants’ brief, which is the lone issue in the Respondents’ brief is distilled from ground one in the Notice of Appeal. This issue questions the decision of the learned trial Judge to strike out paragraphs 1 – 12 of the affidavit of the Appellants, (then Applicants) in support of the originating summons. This issue arises from one of the preliminary issues considered by the court below. Although the learned trial Judge held that the affidavit could not sustain the originating summons, however went ahead to determine the matter on the merit relying on the cases of Adah v. NYSC (2004) All FWLR (Pt.223) 1850 and Wabalari v. Alim (2004) All FWLR (Pt.224) 2030. The reason given in the Judgment is that it is better to err on the side of caution should this court hold otherwise on the matter. Issue 2 which I have just resolved has settled this matter on the merit and there would have been no need to resolve this last issue, but since it has been submitted to this court for consideration, and this court not being the final court of this country, I shall proceed to consider it.
It was the submission of the learned counsel for the Appellants that the learned trial Judge having held that the affidavit of the Appellants disclosed a cause of action under Section 300 of CAMA, was wrong to turn around to destroy the same cause of action by striking out the same paragraphs of the affidavit that disclosed it. It is his view that the learned trial Judge labored under a misconception as to what is a fact and what is to be considered extraneous under Sections 86 and 87 of the Evidence Act respectively.
Learned counsel further posited that an affidavit may contain “objection, prayer, legal argument or conclusion” as long as such objection, prayer, legal argument or conclusion is not extraneous and pertains to what is in issue in the proceedings. Specifically, learned counsel in paragraph 90, p. 37 of their brief states inter alia that-
“For a deposition in an affidavit to offend argument this provision, therefore, it would not be sufficient that it sounds like an “objection, prayer, legal argument or conclusion”. It must also be demonstrated that it is extraneous”.
After examining each of the paragraphs of the affidavit, the learned counsel concluded in paragraph 91 of their brief as follows:-
“It is the humble submission of the Appellants therefore that the affidavit in support of their originating summons in the court below contained facts including beliefs and opinions held by them in circumstances where such opinions are proper as demonstrating the issues in controversy between the parties. The Appellants also contend that where any statement in the affidavit is held to be a legal argument or conclusion, it is not extraneous to the issues in controversy between the parties”.
He then urged this court to resolve the issue in favour of the Appellants.
In his reply on this issue, the learned counsel for the Respondents submitted that the contention of the Appellants’ counsel in para. 90 of their brief is self serving as it does not accord with the clear provisions of the Evidence Act as well as the case law on the provisions of Section 86 and 87 of the Evidence Act. That the provisions of Sections 86 and 87 of the Evidence Act are mandatory. He relies on the cases of Chief Francis Edu v. Commissioner for Agriculture (2000) 12 N..W.L.R. (Pt.681) 316 at 334 para F; Governor of Lagos State v. Ojukwu (1986) 1 N.W.L.R. (Pt.18) 621 at 641 para C. On what constitutes extraneous matters in an affidavit, learned counsel referred to the case of Bamaiyi v. State (2001) 8 N.W.L.R. (Pt.715) 270 at 289 para G.
Learned counsel for the Respondents further opined that a conclusion cannot be a statement of fact within the knowledge of a deponent as stipulated by Section 87 of the Evidence Act. That a conclusion is usually an inference drawn from facts known to a person and not facts itseff. He relies on the cases of Nigeria LNG Ltd v. African Development Insurance Co. Ltd. (1995) 8 N.W.L.R. (Pt.416) 677 at 699 para H; General Aviation Services Ltd. v. Thakal (2004) All FWLR (Pt.211) 1368 at 1390
Also, as the Appellants’ counsel did, the learned counsel for the Respondent also considered paragraph by paragraph the affidavit of the Appellants in support of their originating summons and contended that the court below was right in striking out paragraphs 2 – 12 of the said affidavit for offending Sections 86 and 87 of the Evidence Act. He refers to the case of Att. Gen. of Adamawa State v. Att. Gen. of the Federation (2006) 1 MJSC 1 at 36 and Governor of Lagos State v. Oiukwu (supra).
On the argument of the Appellants in para. 85 of their brief that the lower court failed to accord them their right to amend and re-swear the affidavit in support under section 85 of the Evidence Act, he submitted that at no time did the Appellants admit the errors in the affidavit let alone asking the lower court for leave to amend. Moreso, that the court is not a Father Christmas and could not have granted a relief not prayed for. He relies on Ibrahim-Ohida v. Military Administrator, Kogi State (2000) 12 N.W.L.R. (Pt.680) 24 at 43 para A. He then urged this court to resolve this issue against the Appellants.
By section 86 of the Evidence Act, “every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be time”. And by section 87 thereof, “an affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion”. Bearing these two sections in mind, a deponent to an affidavit shall make his depositions to conform as near as possible to oral evidence admissible in court. It should, like oral evidence, deal with facts and avoid matters of objection, or prayer, or legal argument or conclusion.

In General Aviation Services Ltd. v. Thahal (2004) All FWLR (Pt.211) 1368 at 1390, the Supreme Court, per Uwaifo, JSC, gave a beacon of light or the test of knowing facts and circumstances in an affidavit. It states:
“The test for knowing facts and circumstances is to examine each of the paragraphs deposed to in the affidavit. If it is such that a witness may be entitled to adduce them in his testimony on oath and are legally admissible as evidence to prove or disprove a fact in issue, then they qualify as statement of facts or circumstances. This means that affidavit evidence must as a general rule deal with facts and avoid matters of inference or conclusion which fall within the province of the court; or objection, prayer or legal argument which must be left to counsel.
If, therefore, affidavit evidence is in the form of conclusion inference, legal argument, prayer or objection, it raises no fact which needs to be controverted but is simply regarded as extraneous to the determination of factual disputes.”
I shall reproduce here the paragraphs of the affidavit which are in issue for ease of reference. These are:-
“2. On 14/08/09 the Central Bank Governor purporting to act under Section 35(2)(d) of the Banks and other Financial Institutions Act (BOFIA) purported to remove all the directors of the 1st Respondent and replaced them with the 2nd Respondent and her colleagues, designating the 2nd Respondent as the Managing Director.
3. The Central Bank Governor thereafter embarked on a sustained campaign against the 1st Respondent in both local and international media and fora aimed which has severely impacted on the corporate image and goodwill of the company built over decades of ifs existence.
4. In particular, the Central Bank Governor presented the 1st Respondent to the public as:
a. Weak, undercapitalized, and/or insolvent.
b. Generally, an unreliable and unsafe financial institution for anyone to do business with.
5. The overall financial position of the 1st Respondent i.e., when its liabilities, as they fall due, are matched against its assets do not bear out the allegations of the Central Bank Governor.
6. The Central Bank Governor contemporaneously with the announcement of the unlawful removal of the directors of the 1st Respondent also announced that he had injected the sum of N120 billion into the 1st Respondent ostensibly to cushion the shock of his unwarranted intervention in the affairs of the company.
7. However, the Central Bank Governor was to reveal subsequently in his numerous interviews and press statements that the real purpose behind the injection of the said funds into the 1st Respondent and so dilute the shareholding structure of the 1st Respondent and reduce its owners into a minority with the ultimate aim of disposing of the new shares, and hence the 1st Respondent, to third parties (whom he called a new core-investor) to be selected by him under the guise of recovering the funds.
8. The Central Bank Governor has in furtherance of the scheme announced at a public forum that shareholders of the 1st Respondent, including the Applicants, have lost their shares in the company and has further purported to announce guidelines for the forceful sale of the company and its shares to third parties. Newspaper reports of the statements of the Central Bank Governor are attached and marked Exhibit 1.
9. The 2nd Respondents by their unlawful presence within Board of Directors of the 1st Respondent are perpetuating a fraud against the 1st Respondent and its shareholders including the Applicants.
PARTICULARS OF FRAUD
a. The sacking of all the Executive Directors of the 1st Respondent by the Central Bank Governor (including his appointing the 2nd Respondents as their replacements and also proceeding to allocate to them offices within the management of the company as Managing Director and Executive Directors respectively) is ultra vires the powers of the Central Bank Governor under the said Section 35(2)(d) of the Banks of other Financial Institutions Act (BOFIA).
b. There is also no power or vires in the Central Bank Governor under the Banks and other Financial Institutions Act, particularly, the said Section 35(2)(d) thereof, and the Central Bank of Nigeria Act to forcefully inject funds into the 1st Respondent in the guise of a bail-out for the company or at all.
c. In view of the above, the said N120 billiion which the Central Bank Governor purported to inject into the 1st Respondent without its request or consent or without the request and consent of its lawful directors cannot constitute a debt which the 1st Respondent owes to the Central Bank of Nigeria or any other person and ought not to be so recorded in the books of the 1st Respondent, particularly to affect the value of the shareholding of the Applicants or to give the Central Bank of Nigeria or any other person any claim to any interest in the company or in any of its shares or other securities.
d. However, the 2nd Respondents being appointees and agents of the CBN Governor wish to manipulate the shareholders of the 1st Respondent to approve a statement of accounts of the company which not only records this fund as a debt owed by the company to the Central Bank of Nigeria but also puts the company in a negative financial position to justify the false opinion expressed by the CBN Governor concerning the finances of the company and to reduce or totally wipe off its net worth to the end that the new investors being lined up would be able to take over the company for a mere token.
e. The 2nd Respondent and her colleagues who are not lawful members of the Board of Directors of the first Respondent (being agents of the Central Bank Governor unlawfully imposed upon the management of the company) have continued to parade themselves as the lawful directors of the company in management capacity as Managing Director and Executive Directors respectively of the company and have in that capacity proposed and scheduled an Annual General Meeting of the company at Abuja for the 15th of December, 2009 at which they hope to sit and act unlawfully as such directors of the company to present such false reports of the affairs of the company and to manipulate the meeting as aforesaid to approve such false reports and have themselves recognized and confirmed as such directors of the company.
f. The 2nd Respondents have been planted in the management of the 1st Respondent for the principal purpose of carrying into effect the declared purpose of the Central Bank Governor to divest the shareholders of the 1st Respondent of their shares or the fair value of the shares (and the just dividends due on the shares) and to transfer same to his nominees.
10. The Applicants learnt of the said scheduled purported Annual General Meeting of the 1st Respondent on Monday 23rd November, 2009 when some follow shareholders of the 1st Respondent residing at Abuja called them by telephone to draw their attention to publication in the Abuja Daily Trust Newspaper (the circulation of which is restricted mainly to the Abuja area) of Saturday, 21st November, 2009 appearing to give notice of such meeting. The Applicants sought up until Wednesday, 25th November, 2009 to confirm the report by obtaining a copy of the publication. They had also hoped to confirm the report, particularly, by seeing a follow-up publication in any of the national newspapers in accordance with the provisions of the Companies and Allied Matters Act (CAMA) and the established practice of the company but could not come across any such publication. The following two days (Thursday and Friday, 20th and 27th respectively) were public holidays. Applicants contacted their solicitors on the following Monday, 30th November, 2009 but due to pressure of accumulated work, the solicitors could not immediately file this action.
11. Except the Respondents are IMMEDIATELY AND URGENTLY restrained they shall continue to act to injure the investment of the Applicants and other shareholders in the 1st Respondent and in particular they shall purport to hold the said scheduled Annual General Meeting of the 1st Respondent and sit unlawfully as directors of the company at the said meeting in order to perfect the fraudulent schemes aforesaid against the 1st Respondent and its shareholders including the Applicants and present the honourable court with a fait accompli.
12. The Applicants have through their counsel filed along with this application an undertaking to pay damages if the injunction sought is subsequently found to have been unwarranted. A copy of the said undertaking is attached and marked Exhibit 2.”
The learned trial Judge in his Judgment held paragraphs 5, 6, 7, 9, 11 and 12 to contain extraneous matters by way of conclusion and paragraphs 2, 3, 4, 8 and 12 to offend Section 6 and 87 of the Evidence Act as they also contain extraneous matters. He then struck out paragraphs 2 to 12.
A close look at the paragraphs of the affidavit will disclose that they are either argumentative or conclusions. For instance, paragraph 2 talks about the CBN Governor ”purporting to act under section 35(2)(d) of the Bankers and other Financial Institutions Act (BOFIA), purported to remove…” clearly the use of the word “purporting” and “purported” makes the paragraph argumentative and speculative. Paragraph 3 is certainly a conclusion. The deponent draws inference from the “sustained media campaign of the CBN Governor” which he concludes “has severely impacted on the corporate image and goodwill of the company”.
The same virus has affected the 4th paragraph which concludes that the action of the CBN Governor “has presented the 1st Respondent as weak, unreliable and unsafe financial institution”. This is certainly a conclusion.
When the deponent in paragraph 5 states that the “overall financial position of the 1st Respondent … do not bear out the allegations of the central Bank Governor” he was in fact drawing a conclusion without even stating the facts of the financial position of the 1st Respondent.
The use of the word “unwarranted” in paragraph 6 is clearly a legal conclusion. Such matter should be left to the court to decide whether the action of the CBN Governor was unwarranted or not. It does not lie in the mouth of the deponent to conclude whether it was unwarranted or not.
I agree that paragraphs 7 and 8 are also conclusions as the averments speculate on “the real purpose behind the injection of funds into the 1st Respondent” and characterized the proposed sale of the 1st Respondent as “forceful sale of the company”. Paragraph 9 contains legal arguments and conclusions. In paragraph 10, the deponent uses the words ”purported Annual General Meeting” and “had hoped to see a follow up publication” in the newspapers. These are not facts but mere speculations.
Paragraph 11 states that if the Respondents are not restrained, they would attend a meeting which he concludes is unlawful and that the meeting is “to perfect the fraudulent schemes aforesaid”. These are matters which counsel ought to have urged on the court and not a mater for an affidavit.
Having carefully gone through the paragraphs of this affidavit, I am of the view that the court below did not commit any error in holding that they offended Section 86 and 87 of the Evidence Act. A conclusion is an inference drawn from facts known to a person. Thus a conclusion cannot be ”a statement of fact within the knowledge of a deponent” as stipulated by Section 87 of the Evidence Act. It has to be noted that the word “conclusion” used in Section 87 of the Evidence Act does not mean only a legal conclusion. It means any conclusion based on fact or law which is a result of a process of reasoning to reach an opinion, or draw an inference or make a deduction. This is not allowed to be done in an affidavit. See Nigeria LNG Ltd. V. African Development Insurance Co. Ltd. (supra).

Again the use of the words “shall” and “shall not” in sections 86 and 87 of the Evidence Act respectively has a mandatory effect. Therefore, where in section 86 of the Evidence Act the words “shall contain” are used, it connotes mandatoriness or a must. And in section 87 thereof, where the words “shall” not contain” are used, it clearly means that extraneous matters must not contain in an affidavit. See Egbe v. Alhaji (1990) 1 N.W.L.R. (Pt.128) 546; Ojukwu v. Onyeador (1991) 7 N.W.L.R. (Pt.203) 268.
The learned counsel for the Appellants appears to have tacitly conceded that the paragraphs of the affidavit were incompetent when he argued in paragraphs 85 and 86 of their brief that the Appellants had a right under Section 85 of the Evidence Act to amend or re-swear the affidavit instead of being struck out by the court. Section 85 of the Evidence Act clearly states that-
“85 A defective or erroneous affidavit may be amended and re-sworn by leave of the court, on such terms as to time costs or otherwise as seem reasonable”.
There is no doubt that a defective or erroneous affidavit may be amended or re-sworn in view of the provision of section 85 of the Evidence Act. The same section provides that it can only be done with the leave of the court. This means that a party seeking to amend or re-swear his affidavit has to apply to the court for leave to do so and I think courts will always be favourably disposed to granting leave where good reasons are placed before the court. In the instant case, as was rightly pointed out by the learned counsel for the Respondents in their brief, there is nothing to show that the Appellants admitted any error in their affidavit, let alone, applying for leave to amend same.

It is therefore wrong to blame the court below for failing to grant them the benefit of Section 85 of the Evidence Act. As has been held before, the court is not a Father Christmas and will not give to parties what they have not prayed for. See Ibrahim-Ohida v. Military Administrator of Kogi State (2000) 12 N.W.L.R. (Pt.680) 24 at 43 para A.

Where a deponent allows his defective or erroneous affidavit to be used in litigation without doing anything to remedy it and it is subsequently struck out by the court, the court cannot be accused of dwelling in technicality. Afterall, justice is not only for the Plaintiff but also for the Defendant. A court must not do anything to suggest that it is trying to favour or pave a way for one party against the other. That will amount to descending into the arena which is not allowed.
One other matter which ought to be addressed in this issue has to do with the submission of the learned counsel for the Appellants in paragraph 90 of their brief. In picking holes with the Judgment of the court below, the learned counsel for the Appellants submitted that an affidavit may contain “objections, prayer, legal argument or conclusion” as long as such objection, prayer, legal argument or conclusion is not extraneous and pertains to what is in issue in the proceedings. This argument, to my mind is skewed and puerile in view of the clear and unambiguous provisions of Sections 86 and 87 of the Evidence Act as what should contain in an affidavit and what should not contain in it. Objections, prayer, legal argument or conclusion do not mean other than what they are. Legal arguments, objections and prayers should be left to counsel and not to be ventilated in the affidavit. See Bamaiyi v, The State (2001) 8 N.W.L.R. (Pt.715) 270 at 289 para G.
I find it fascinating and quite useful today the remark made by Uwaifo, JCA (as he then was) some 16 years ago in Nigeria LNG Ltd. v. ADIC Ltd. (1995) 8 N.W.L.R. (Pt.416) 677 at 701 – 702 paras A – H as follows:-
“It seems pertinent to remark that counsel or solicitors who draft affidavits for use in court must keep strictly in mind the provisions of Section 86, 87, 88 and 89 in particular of the Evidence Act. Ever so often one reads affidavits studded with highfalutin depositions either condemning the opponent in diverse ways, or engaging in legal argument, or drawing conclusions, or praying for all sorts of assistance from the court and/or warning against the consequences of allowing the opponent to get away with what he is alleged to have done. Instead of deposing to facts and circumstances and their details, the infraction of Section 87 of the Evidence Act is usually freely committed. It is time-wasting; it tends to betray professionalism and serves no useful purpose. Affidavits for use in court should contain only a statement of facts and circumstances. Prayers and legal arguments are better pressed by counsel in court while conclusions should be left for the court to reach”.
I cannot agree more. The remark is very apt in this circumstance. It is on this note that I agree with the court below that paragraphs 3 – 12 of the affidavit of the Appellants in support of his originating summons contained extraneous matter by way of objection, prayer, legal argument or conclusion. It was therefore proper for the learned trial Judge to strike out those paragraphs. This issue is therefore resolved against the Appellants.
Having resolved the two issues against the Appellants, this appeal tacks merit and is hereby dismissed. The Judgment of the Federal High Court delivered on 25/10/10 which dismissed the Appellants’ claim is here by affirmed. I award costs of N30,000.00 against the Appellants and in favour of the Respondents.

HELEN MORONKEJI OGUNWUMIJU, J.C.A: I have had the benefit of reading the judgment just delivered by my learned brother JOHN INYANG OKORO JCA. I agree with his reasoning and conclusions that the appeal is totally without merit and should be dismissed.
The main issue in this appeal turns on the correct interpretation to be placed on S.35(2)(d)(i) and S.35(2)(d)(ii) of the Banks and other Financial Institutions Act (BOFIA).
The provision of S.35 is set out below:
“35. Failing Bank.
(11 where a bank informs the Bank that-
(a) It is likely to become unable to meet its obligations under this Act; or
(b) It is about to suspend payment to any extent; or
(c) It is insolvent; or
(d) Where, after an examination under section 33 of this Act or otherwise howsoever, the Bank is satisfied that the bank is in a grave situation as regards the matter referred to in section 33(i) of this Act;
The Governor may by order in writing exercise any or more of the powers specified in subsection (2) of this section,
(2) The Governor may by order in writing under subsection (i) of this section –
(a) prohibit the bank from extending any further credit facility for such period as may be set out in the order, and make the prohibition subject to such exceptions; and impose such conditions in relation to the exceptions as may be set out in the order; and from time to time, by further order similarly made, extend the aforesaid period;
(b) require the bank to take any steps or any action or to do or not to any act or thing whatsoever, in relation to the bank or its business or its directors or officers which the Bank may consider necessary and which is set out in the order, within such times as may be stipulated therein;
(c) remove for reasons to be recorded in writing with effect from such date as may be set out in the order, any manager or officer of the bank notwithstanding anything in any written law, or any limitations contained in the memorandum and articles of association of the bank;
(d) in respect of a bank, notwithstanding anything in any written law or any limitations contained in the memorandum or articles of association of the bank, and in particular, notwithstanding any limitation therein as to the minimum or maximum number of directors, for reasons to be recorded in writing –
(i) remove from office, with effect from such dated as may be set out in the order, any director of the bank; or appoint any person or persons as a director or directors of the bank; or
(ii) appoint any person or persons as a director or directors of the bank, and provide in the order for the person or persons so appointed to be paid by the bank such remuneration as may be set out in the order;
(e) appoint any person to advise the bank in relation to the proper conduct of its business, and provide in the order for the person appointed to be paid by the bank such remuneration as may be set out in the order”
The issue is whether the word ”OR” separating S. 35(2)(d)(i) from 35(2)(d)(ii) should make the two provisions disjunctive or conjunctive. At first stance because the word “OR” separates the two subsections, it appears that the normal interpretation to the word OR and as provided by S.18(3) of the interpretation Act Cap. 123 LFN 2004 is that the word should ordinarily be interpreted as disjunctive. That is to say 32(2)(d)(i) is an alternative to s.32(2)(d)(ii) and both provisions are not to be effected concurrently.
However in some instances, it has been recognized that the word OR may be interpreted as AND where to construe otherwise will lead to absurdity or will not reflect the true intendment of the legislature. One of the canons of the law of interpretation of statutes is that in the construction of statutes there is the need to always engage in the community reading of related provisions as a whole rather than treating one or some of them in isolation. Thus the whole section of a statute rather than a subsection must be considered to glean the intention of the legislature. See The Reg. Trustees of National Ass. of Community Health Practitioners of Nigeria & Ors. V. Medical & Health Workers Union of Nig. & Ors. (2008) 1 SCNJ 348; INAKOJU V. ADELEKE (2007) 1 SCNJ 1.
Let us look again at S.35(1) of the Act where the C.B.N. Governor is empowered to exercise “any one or more of the powers specified in subsection 2 of S.35 of the Act.” Thus, a community reading of S. 35 leads one to believe that actually the C.B.N. Governor is not limited to the exercise of alternative powers under s. 35(2) but can if need be exercise both the power to remove under S.35(2)(d)(i) and the power to appoint under S.35(2)(ii) of the Act concurrently. He can even exercise any or more of the powers under S.35(2)(a) – (e). I think that is the only interpretation that would accord with the intention of the legislature to remove directors or even executive officers who have been unable to keep a bank afloat and to replace such directors and save the failing bank by providing the necessary managerial and operational support to facilitate the ailing bank’s recovery. I therefore agree with the learned trial Judge’s interpretation. As held earlier, the appeal is unmeritorious, and it is hereby dismissed. I abide by all the orders in the lead judgment.

RITA NOSAKHARE PEMU, J.C.A: I have read before now the judgment just delivered by Hon. Justice, J.I. Okoro JCA and I agree with the conclusions arrived at as well as the opinion proffered.
Facts deposed to in affidavits are apparent on their face. If argumentative, or if they amount to conclusions, or if they are extraneous, and where there is an application to strike out paragraphs which are guilty of this contrary to the provisions of Sections 6 and 87 of the Evidence Act, the Court is obligated to strike out the offending paragraphs. Indeed, a Court can suo motu strike out such paragraphs upon a perusal of the facts deposed to.
However, a defective or erroneous affidavit may be amended or re-sworn with leave of Court pursuant to Section 85 of the Evidence Act 1990. The Appellants failed to obtain the relevant leave in the instant case.
In NIGERIA LAG LTD. VS. ADIC LTD. (1995) 8 NWLR Part 416 at 677 at 701 – 702. Paragraph a-h, Uwaifo J.C.A. (as he then was) putting it succinctly had this to say inter alia.
“…Prayers and legal arguments are better proved by counsel in Court while conclusions should be left for the Court to reach”.
Paragraphs 3 – 12 of the affidavit of the Appellants in support of his Originating Simons, ex-facie is fraught with extraneous matters and facts by way of objection, prayer, legal argument and conclusions.
The learned trial judge, had a duty in the circumstances to strike out those offending paragraphs as he did.
The Appeal lacks merit and is hereby dismissed, and the judgment of the lower court is affirmed. I abide by the consequential order that costs of N30,000.00 be paid by the Appellants in favour of the Respondents.

Appearances

Chuks Nwachukwu Esq.
Kingsley Isichei Esq. and
Chidimma Osaji (Miss)For Appellant

AND

O. Opasanya Esq.,
Dr. K.U.K. Ekwueme,
O. Babalola (Miss) and
Shehu Mustafa Esq.,For Respondent