DAYSON HOLDINGS LIMITED v. BFI GROUP CORPORATION & ANOR
(2019)LCN/13787(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of January, 2019
CA/A/637A/2014
JUSTICES
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
DAYSON HOLDINGS LIMITED Appellant(s)
AND
1. BFI GROUP CORPORATION
2. BUREAU OF PUBLIC ENTERPRISES Respondent(s)
RATIO
THE DUTY OF THE SUBORDINATE COURTS WHEN CARRYING OUT THE ORDER OF THE SUPREME COURT
When it comes to carrying out the order of the Supreme Court, Section 287 (1) obligates all subordinate Courts to do it. It is a duty the subordinate Courts must carry out under the Constitution. In enforcing the Supreme Court orders, they are just bringing to effect what the Supreme Court decided. The decision is not theirs. What is required is they deploying their constitutional powers under Section 6(1), (6)(a) of the 1999 Constitution. This provision endowed the Courts with judicial powers which shall extend notwithstanding to the contrary in the Constitution, to all inherent powers and sanctions of a Court of law. Sowemimo, JSC held in T.A. Yonwuren v. Modern Signs (Nig) Ltd (1985) LPELR – (SC) as follows:
“Nature of Inherent Jurisdiction to understand the nature of the inherent jurisdiction of the Court, it is necessary to distinguish it first from the general jurisdiction of the Court, and next from its statutory jurisdiction. The term ‘inherent jurisdiction of the Court’ does not mean the same thing as ‘the jurisdiction of the Court’ used without qualification or description; the two terms are not interchangeable, for the ‘inherent’ jurisdiction of the Court is only a part or an aspect of its general jurisdiction. The general jurisdiction of the High Court as a superior Court of record is, broadly speaking unrestricted and unlimited in all matters of substantive law, both civil and criminal, except in so far as that has been taken away in unequivocal terms by statutory enactment. The High Court is not subject to supervisory control by any other Court except by due process of appeal, and it exercises the full plenitude of judicial power in all matters concerning the general administration of justice within its area Its general jurisdiction thus includes the exercise of an inherent jurisdiction. Moreover, the term ‘inherent jurisdiction of the Court? is not used in contradistinction to the jurisdiction conferred on the Court by statute. The contrast is not between the common law jurisdiction of the Court on the one hand and its statutory jurisdiction on the other, for the Court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of Court, so long as it can do so without contravening any statutory provision.
There is, nevertheless, an important difference between the nature of the inherent jurisdiction of the Court and its statutory jurisdiction. The source of the statutory jurisdiction of the Court is of course the statute itself, which will define the limits within which such jurisdiction is to be exercise, whereas the source of the inherent jurisdiction of the Court is derived from its nature as a Court of law, so that limits of such jurisdiction are not easy to define, and indeed to elude definition.”PER ADAH, J.C.A.
WHETHER OR NOT A COURT MUST BE ENDOWED WITH POWERS TO PERFORM TO EFFECTIVELY ADMINISTER JUSTICE
The Constitution has taken cognizance of the fact that for the Court to effectively administer justice it must be endowed with powers to function. A powerless Court would definitely be a disaster. So judicial powers are donated along with inherent powers to cause the Courts to be effective and to flourish in the duty to administer justice. I believe that by the provisions of Section 287(1) of the 1999 Constitution, every subordinate Court or record has the bounden duty of enforcing the decision of the Supreme Court regardless of the Court’s capacity and jurisdiction.
In the instant case, one cannot understand why the issue of jurisdiction of the Court below is being raised at the stage of enforcement of the decision. The case originated from the Abuja Division of the Federal High Court before it went the Supreme Court. Issue of jurisdiction as raised is therefore not of any consequence. The Court below in its judgment considered this issue of jurisdiction and held as follows:
“The provisions of the above quoted statutes confer jurisdiction on any Court of record subordinate to the Supreme Court to enforce the judgment of the Supreme Court regardless of the subject matter of the judgment. The subject matter of the case before this Court is the enforcement of the judgment of the Supreme Court of 6th day of July, 2012 in Appeal No Sc.12/2008 and not enforcement of any contract.” PER ADAH, J.C.A.
WHETHER OR NOT A COURT CAN ONLY GRANT RELIEFS SOUGHT BY PARTIES
The law is well settled that the Court can only grant what was asked for by an applicant. The jurisdiction of the Court is tied to the claim and reliefs sought. No Court can give what was not asked for by the applicant unless it is consequential. GALADIMA, JSC in the case of ALHAJI MOHAMMED BUHARI AWODI & ANOR V. MALLAM SALIU AJAGBE (2014) LPELR-24219 (SC) held as follows: “It is now elementary principle of law, as has long been settled by this Court in a plethora of case that the Court of law has no business being a ?Father Christmas” (Santa Claus) fancying granting relief or prayer which the parties have not specifically asked for or sought. In the case of THE NIGERIA AIR FORCE v. SHEKETE (2002) 12 SCNJ 35 at 52 – 53 this Court held per my brother NIKI TOBI, JSC as follows; “It is elementary law that a Court of law cannot grant an applicant a prayer not sought. A Court can only grant a relief or prayer sought. The moment a Court grants a relief or prayer not sought by the party, it expands the boundaries of litigation and unnecessarily instigates more litigation to the detriment of the parties and for no reason at all. The litigation is for the parties and not the Court.
Therefore, the Court has no jurisdiction to extend or expand the boundaries of litigation beyond what the parties have indicated to it. In other words, the Court has no jurisdiction to set up a different or new case for the parties.” See further WESTERN STEEL WORKS LTD v. IRON AND STEEL WORKERS UNION (1986) 3 NWLR (Pt. 30) 617, EKPENYONG v. NYONG (1975) 2 SC 71 at 81; MAKANJUOLA v. BALOGUN (1989) 5 SC 82 at 93.”
See also GALINJE. JSC in EDILCON NIGERIA LTD V. UBA PLC (2017) LPELR-42342 (SC). PER ADAH, J.C.A.
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court, Abuja Division in Suit No: FHC/ABJ/CS/901/2013, delivered on 30th of September, 2014 by Abdu Kafarati, J. (now C.J).
The facts in brief are that the Federal Government of Nigeria was carrying out the privatization of the Aluminum Smelter Company of Nigeria (ALSCON). The 2nd Respondent, Bureau of Public Enterprises on behalf of the National Council on Privatization (NCP) conducted the said privatization. The 2nd Respondent called for bids and at the end of the bids, the 1st Respondent was declared the preferred bidder. The appellant was the runner-up to the bid. She put in a conditional bid US $210 Million.
?However, upon an alleged failure of the 1st Respondent to meet the conditions subsequent to the bid arrangement (particularly payment of 10% of the bid price within 15 days of the bid in accordance with the agreement of 20th May, 2004), the 2nd Respondent opted for the appellant’s bid and executed a Share Purchase Agreement dated February 3, 2006 upon its purchase of same.
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The 1st respondent was aggrieved by the action of the 2nd respondent in terminating its contract, the 1st respondent BFIG commenced proceedings against BPE before the Abuja Division of the Federal High Court vide Suit No FHC/ABJ/CS/583/2004. In the said suit, BFIG sought to enforce the binding agreement between the parties by, amongst other reliefs, an order of specific performance. The trial Court dismissed BFIG’s claim. The Court concluded that there was no binding agreement between the parties capable of legal enforcement.
BFIG’s appeal to the Court of Appeal vide Appeal No: CA/A/261/2005 was also dismissed. The Court of Appeal affirmed the judgment of the trial Court. This prompted a further appeal to the Supreme Court vide Appeal No: SC.12/2008.
In its final judgment delivered on 6 July 2012, the Supreme Court found that there was a binding contract between the parties and that BPE’s reason for “abrogating the contract was most unjust”. The Supreme Court found that BPE?s ?unilateral insertion of the offensive clause without mutual agreement of the 1st respondent amounted to a breach of the contract between the parties.”
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The Supreme Court allowed the appeal and, amongst other reliefs, granted an order of specific performance – mandating BPE to provide the mutually agreed SPA for execution by the parties; payment of the bid price of US $410 million in accordance with the terms agreed at the TBC of May 20, 2004; and an order of perpetual injunction restraining BPE, its agents and privies howsoever from, inter alia, ”negotiating to sell, selling, transferring or otherwise handing over the Aluminum Smelter Company of Nigeria ALSON to any person or persons in violation of the contract between the [parties].”
The 1st respondent thereafter filed an originating motion at the Court below. The Court granted the motion and made further consequential orders as follows:
1. An order is hereby granted directing the respondent to fully enforce and give effect to the meaning and intendment of the Judgment of the Supreme Court dated 6th day of July, 2012 by signing and executing forthwith the mutually agreed Share Purchase Agreement (SPA) annexed to the Applicant’s motion as Exhibit F with a purchased price of US four hundred and ten million dollars (410 million).
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2. It is further ordered that the respondent should accept ten percent(10%) of the purchase price or US forty-one million dollars ($41 million) to be paid within fifteen (15) working days of this enforcement order or not later than October 24, 2014. The balance of US Three Hundred and Sixty nine Million Dollars ($369 Million) to be paid as per Audited Financial Statement as at the date of this judgment being 30th day of September, 2014.
3. A further order consequent upon the Judgment of the Supreme Court dated 6th day of July, 2012 compelling and mandating the respondent to forthwith take full control and possession of ALSCON from anybody including UC Rusal et al and prepared same fore handover/transfer by the Applicant as order in 2 above granted.
4. To further give effect to the Judgment of the Supreme Court, it is ordered by way of consequential order as follows:
i. That the applicant, its employees and agents shall forthwith have full, uninterrupted and unrestricted access to ALSCON to conduct a firsthand assessment of the business affairs of the Company including engineering technical, financial, accounting, facility environmental, personnel, dredging and legal records
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pursuant to the decisions of the NCP as approved and directed in Exhibits G and G1 attached to this motion.
ii. The Inspector General of Police and other security agencies should ensure that these orders are fully enforced.
The appellant was not a party to the proceeding at the Court below. Aggrieved by the decision of the Court below, the appellant brought an application before this Court dated 25th June 2015 for leave to appeal as an interested party. This Court granted the appellant’s application and she filed her notice of appeal on 10th July, 2015 raising four grounds of appeal. The record of appeal was transmitted on 11th May 2017. The appellant filed her brief of argument on 7/2/2018. The 1st respondent filed her own brief of argument on 9th of March, 2018.
Let me indicate at this stage that the instant appeal is a sister appeal to Appeal No.CA/A/637/2014, which has just been determined by this Court.
At the hearing of this appeal on 17/10/2018, the parties adopted their respective briefs and their reliefs.
?The appellant submitted three issues for determination. These issues are worded as follows: –
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i. Whether the learned trial Judge acted without jurisdiction in granting an order for enforcement of the judgment of the Supreme Court and granting full and uninterrupted access to the ALSCON facility in favour of the 1st respondent. (Grounds 1 and 4 of the Appellant’s Notice of Appeal).
ii. Whether the learned trial Judge was right in granting orders not sought in the originating motion dated 20th December 2013. (Ground 2 of the Appellant’s Notice of Appeal).
iii. Whether the learned trial Judge was right in arriving at the conclusion that Exhibit F is the mutually agree (sic) Share Purchase Agreement. (Ground 3 of the Appellant’s Notice of Appeal).
The respondent in her own brief raised two issues for determination. These issues are:-
1. Whether the learned trial Court has the jurisdiction to entertain and determine the Enforcement Application seeking to enforce the final judgment of the Supreme Court in SC. 12/2008 between BFI Group Corporation v. Bureau of Public Enterprises. (Ground 3).
From the issues generated by the parties, what is clear is the fact that the issues as laid out are similar but differently worded.
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I shall use the three issues distilled by the appellant for the determination of the appeal. The two issues framed by the 1st respondent will be adequately covered in the consideration of the issues of the appellant. I will consider issue one first, thereafter consider issues two and three together.
Issue One:
This issue is whether the Court below had acted without jurisdiction in granting the order.
On this issue, the appellant submitted that the Court below erred in carrying out the enforcement of the judgment of the Supreme Court. The reason for this submission of the appellant according to him is that by Section 251 of the 1999 Constitution the Court below has no jurisdiction over the subject matter which formed the basis of the instant appeal. The learned counsel for the appellant relied on the cases of Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 549 and Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) 423. Counsel submitted that in the determination of jurisdiction the Court process to be used is the pleadings of the plaintiff. He submitted that Section 287 (1) of the 1999 Constitution relied upon by the Court below does not empower the Court
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below to enforcer judgment in respect of a subject matter of specific performance of a contract which is outside the substantive jurisdiction of the Court. That Section 251 (1) of the 1999 Constitution relied upon by the Court below excludes an action for the enforcement of a contract through specific performance. The learned counsel submitted further that the case at the lower Court was aimed at using the machinery of the Court to negotiate and execute a new contract different from the contract that was ordered by the Supreme Court.
The learned senior counsel for the 1st respondent canvassed that the Court below’s exercise of jurisdiction was justified. He supported this with three instances which are:
i. Section 287 (1) of the 1999 Constitution (as amended) enjoins, without qualification, that decisions of the Supreme Court will be enforced by all Courts with subordinate jurisdiction to that of the Supreme Court.
ii. Dayson, not being a necessary party to the suit, could not have been denied fair hearing by the learned trial Court.
iii. The learned trial Court rightly exercised the constitutional duty to enforce and give effect to the
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final judgment of the Supreme Court by determining that Exhibit F which was forwarded by the appellant to the respondent was the mutually agreed SPA ordered by the Supreme Court to be provided for execution by the parties.
He urged the Court to resolve these issues in favour of the respondent.
The contention of the parties in this appeal on these issues is that the Constitution offers the duty to this Court and all other subordinate Courts to enforce the decision of the apex Court. Let me begin by stating here that the duty to enforce the judgment of the Supreme Court is constitutional.
Section 287(1) of the Constitution states that:
“The decisions of the Supreme Court shall be enforced in any part of the federation by all authorities and persons, and Courts with subordinate jurisdiction to that of the Supreme Court.”
Before this dispensation of enforcement of the decision of the Supreme Court, Section 235 of the Constitution has provided for the finality of decisions of the Supreme Court. This Section provides:
“Without prejudice to the powers of the President of the Governor of a State with respect to prerogative of mercy, no
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appeal shall lie to any other body from any determination of the Supreme Court.”
The significance of these provisions of the Constitution is to make the Supreme Court the apex Court in Nigeria and to mandate all other Courts down the line to enforce its decisions. Fabiyi, JSC in the case of Opara & Anor v. Amadi & Anor. (2013) 12 NWLR (Pt. 1369) 512 gave the meaning of decision as follows:-
“The word ?decision” in legal parlance is defined as a judicial determination after consideration of the facts and the law, especially a ruling order or judgment pronounced by a Court when considering or disposing of a case.”
The word “decision” therefore is the conclusion of a case or conclusion of an issue in a case by the Court handling it. Once a case is concluded or determined by the Supreme Court the determination is final and not subject to any further review by any Court or authority in Nigeria. It is in that order that we must say, enforcement of a decision of a Court has nothing to do with the hearing of the cause or issues involved in that decision.
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In the instant case, the claim of the contending parties had fully run its cause. It started from the Federal High Court to the Court of Appeal and finally Supreme Court. There is after the decision of the Supreme Court no live issue left for any further discussion or determination. All the Courts including the Supreme Court are functus officio as far as the main claim of the parties was concerned. For a better understanding of the issue, I say every case has its life cycle. It starts at the pre-trial level dealing with the preliminaries to the trial. Then the trial which involves the hearing of the case to conclusion; and finally the post judgment issues which deal with enforcement of the Judgment or decision of the Court or appeal to the Court of Appeal.
Once judgment is delivered in the case, the issues raised before that Court is closed until appealed upon. If the process of appeal is over as in the instant case, there is nothing left for any person to explore because it is in the interest of the public that there be an end to litigation. What then are we laboring to explain?
?It is the fact that this case has run its final course and it is now in enforcement mode. All that is left is to execute or carry out the order of the Court.
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When it comes to carrying out the order of the Supreme Court, Section 287 (1) obligates all subordinate Courts to do it. It is a duty the subordinate Courts must carry out under the Constitution. In enforcing the Supreme Court orders, they are just bringing to effect what the Supreme Court decided. The decision is not theirs. What is required is they deploying their constitutional powers under Section 6(1), (6)(a) of the 1999 Constitution. This provision endowed the Courts with judicial powers which shall extend notwithstanding to the contrary in the Constitution, to all inherent powers and sanctions of a Court of law. Sowemimo, JSC held in T.A. Yonwuren v. Modern Signs (Nig) Ltd (1985) LPELR – (SC) as follows:
“Nature of Inherent Jurisdiction to understand the nature of the inherent jurisdiction of the Court, it is necessary to distinguish it first from the general jurisdiction of the Court, and next from its statutory jurisdiction. The term ‘inherent jurisdiction of the Court’ does not mean the same thing as ‘the jurisdiction of the Court’ used without qualification or description; the two terms are not interchangeable, for the
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‘inherent’ jurisdiction of the Court is only a part or an aspect of its general jurisdiction. The general jurisdiction of the High Court as a superior Court of record is, broadly speaking unrestricted and unlimited in all matters of substantive law, both civil and criminal, except in so far as that has been taken away in unequivocal terms by statutory enactment. The High Court is not subject to supervisory control by any other Court except by due process of appeal, and it exercises the full plenitude of judicial power in all matters concerning the general administration of justice within its area Its general jurisdiction thus includes the exercise of an inherent jurisdiction. Moreover, the term ‘inherent jurisdiction of the Court? is not used in contradistinction to the jurisdiction conferred on the Court by statute. The contrast is not between the common law jurisdiction of the Court on the one hand and its statutory jurisdiction on the other, for the Court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of Court, so long as it can do so without contravening any statutory provision.
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There is, nevertheless, an important difference between the nature of the inherent jurisdiction of the Court and its statutory jurisdiction. The source of the statutory jurisdiction of the Court is of course the statute itself, which will define the limits within which such jurisdiction is to be exercise, whereas the source of the inherent jurisdiction of the Court is derived from its nature as a Court of law, so that limits of such jurisdiction are not easy to define, and indeed to elude definition.”
The Constitution has taken cognizance of the fact that for the Court to effectively administer justice it must be endowed with powers to function. A powerless Court would definitely be a disaster. So judicial powers are donated along with inherent powers to cause the Courts to be effective and to flourish in the duty to administer justice. I believe that by the provisions of Section 287(1) of the 1999 Constitution, every subordinate Court or record has the bounden duty of enforcing the decision of the Supreme Court regardless of the Court’s capacity and jurisdiction.
In the instant case, one cannot understand why the issue of jurisdiction of the Court below is
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being raised at the stage of enforcement of the decision. The case originated from the Abuja Division of the Federal High Court before it went the Supreme Court. Issue of jurisdiction as raised is therefore not of any consequence. The Court below in its judgment considered this issue of jurisdiction and held as follows:
“The provisions of the above quoted statutes confer jurisdiction on any Court of record subordinate to the Supreme Court to enforce the judgment of the Supreme Court regardless of the subject matter of the judgment. The subject matter of the case before this Court is the enforcement of the judgment of the Supreme Court of 6th day of July, 2012 in Appeal No Sc.12/2008 and not enforcement of any contract.”
The learned judge is undoubtedly right on that issue. The cause before the Court below this time is not the contract of the parties but the enforcement of the judgment of the Supreme Court. It is from the foregoing very clear that the Court below has jurisdiction to enforce the decision of the Supreme Court. Issue one is therefore resolved against the appellant.
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Issues Two and Three:
?Whether the learned trial Judge was right in granting orders not sought in the originating motion dated 20th December 2013; and whether the learned trial Judge was right in arriving at the conclusion that Exhibit F is the mutually agree (sic) Share Purchase Agreement.
The parties in their respective briefs have argued out their positions on these two issues. To begin with the originating motion filed by the 1st respondent at the Court below sought the following reliefs:
i. An Order directing the Respondent to fully enforce, fulfill and give effect to the meaning and intendment of the Judgment of the Supreme Court of Nigeria in Appeal No. SC.1212008 dated 6 July 2012 by signing and executing forthwith the mutually agreed Share Purchase Agreement (SPA) hereto annexed and marked as Exhibit F.
ii. A further Order consequent to the Judgment of the Supreme Court in Appeal No. SC.12/2008 dated 6 July 2012 compelling and mandating the Respondent to forthwith take full control and possession of ALSCON and prepare same for handover/transfer to the Applicant, subject to the payment by the Applicant of the consideration provided for in the SPA (Exhibit F).
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iii. And for such further and or other orders as the Honourable Court may deem fit to make in the circumstances.
The issue at the Court below is the enforcement of the Supreme Court judgment in appeal No. SC.12/2008. In enforcement of an order of the Court, it is required that efforts be made to keep strictly to the terms of the judgment sought to be enforced. A Court enforcing judgment of the Supreme Court must have in mind the fact that it is only called to give effect to the decision of the Supreme Court. He has no business with the cause of the parties. All that is required is for the Court enforcing the judgment to execute the decree or order of the Court that took the decision. If a Court instead of enforcing the orders strictly dabbles into extraneous matter, the enforcing Court would have exceeded its jurisdiction. The law is well settled that the Court can only grant what was asked for by an applicant. The jurisdiction of the Court is tied to the claim and reliefs sought. No Court can give what was not asked for by the applicant unless it is consequential. GALADIMA, JSC in the case of ALHAJI MOHAMMED BUHARI AWODI & ANOR V. MALLAM SALIU AJAGBE (2014) LPELR-24219 (SC) held as follows:
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“It is now elementary principle of law, as has long been settled by this Court in a plethora of case that the Court of law has no business being a ?Father Christmas” (Santa Claus) fancying granting relief or prayer which the parties have not specifically asked for or sought. In the case of THE NIGERIA AIR FORCE v. SHEKETE (2002) 12 SCNJ 35 at 52 – 53 this Court held per my brother NIKI TOBI, JSC as follows; “It is elementary law that a Court of law cannot grant an applicant a prayer not sought. A Court can only grant a relief or prayer sought. The moment a Court grants a relief or prayer not sought by the party, it expands the boundaries of litigation and unnecessarily instigates more litigation to the detriment of the parties and for no reason at all. The litigation is for the parties and not the Court.
Therefore, the Court has no jurisdiction to extend or expand the boundaries of litigation beyond what the parties have indicated to it. In other words, the Court has no jurisdiction to set up a different or new case for the parties.” See further WESTERN STEEL WORKS LTD v. IRON AND STEEL WORKERS UNION (1986) 3 NWLR
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(Pt. 30) 617, EKPENYONG v. NYONG (1975) 2 SC 71 at 81; MAKANJUOLA v. BALOGUN (1989) 5 SC 82 at 93.”
See also GALINJE. JSC in EDILCON NIGERIA LTD V. UBA PLC (2017) LPELR-42342 (SC).
In the instant case, the Court below granted the following orders:
1. An order is hereby granted directing the Respondent to fully enforce and give effect to the meaning and intendment of the judgment of the Supreme Court dated 6th day of July, 2012 by signing and executing forthwith the mutually agreed Share Purchase Agreement (SPA) annexed to the Applicant’s motion as Exhibit F with a purchase price of US Four Hundred and Ten Million Dollars ($410 million).
2. It is further ordered that the Respondent should accept ten percent (10%) of the purchase price or US forty-one million dollars ($41 million) to be paid within fifteen (15) working days of this enforcement order or not later than October 24, 2014. The balance of US three hundred and sixty-nine million dollars (369 million) to be paid as per Audited Financial Statement as at the date of this judgment being 30th day off September, 2014 to be conducted by KPMG.
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3. A further order consequent upon the judgment of the Supreme Court dated 6th day of July, 2012 compelling and mandating the Respondent to forthwith take full control and possession of ALSCON from anybody including UC Rusal et al and prepared same for handover/transfer to the Applicant subject to the payment by the Applicant as order (sic) in 2 above granted.
4. To further give effect to the judgment of the Supreme Court, it is ordered by way of consequential order as follows:
i. That the Applicant, its employees and agents shall forthwith have full, uninterrupted and unrestricted access to ALSCON to conduct a firsthand to conduct a firsthand assessment of the business affairs of the Company including engineering, technical, financial, accounting, facility environment, personnel, dredging and legal records pursuant to the decisions of the NCP as approved and directed in Exhibits G and G1 attached to this motion.
ii. The Inspector General of Police and other security agencies should ensure that these orders are fully enforced.
The learned counsel for the appellant submitted that the order issued by the trial Court engaging the Inspector General of Police was gratuitous and oppressive of
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the interests of the appellant. He submitted also that the order was a substantive one and not consequential as said by the Court below. He canvassed further that an order for enforcement must address exactly what the judgment being enforced decided. That the exact terms of the judgment cannot be varied and must be enforced in the exact manner as was determined. He further canvassed that the general rule of law is that no Court has power to rehear, review, alter or vary any judgment or order after it has been entered or drawn up. He relied on the case of Udo Idion Akpan Ekerete v. Udo Eke of Ikot Eyo (1925) 6-10 NLR 118.
In addition, the learned counsel submitted that the Court fell into the trap of reviewing the Supreme Court’s judgment of 6th July, 2012. That the order for specific performance made by the Supreme Court on 6th July, 2012 is evidently clear. That the case of the 1st Respondent in Suit No FHC/ABJ1583/2004 between BFI Group Corporation v. Bureau of Public Enterprise was that as far back as 20th May, 2004, parties had agreed on fundamental terms on the sale of shares of the Federal Government of Nigeria in ALSCON to the 1st Respondent.
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Having reached an Agreement all that was needed was the production of the Share Purchase Agreement (Exhibit BPE1) by the 2nd Respondent for the purpose of execution of the said Share Purchase Agreement by parties. He submitted that Exhibit BPE1 is a draft of the Agreement which the 1st Respondent relied upon and which formed the basis of the order for specific performance made by the Supreme Court on 6th July 2012. ‘That Exhibit BPE1 is the Agreement referred to by the Supreme Court in its judgment. That the order for specific performance granted by the apex Court is predicated on the existence of an Offer and Bid Price of $410 million which were made and accepted by the 1st and 2nd Respondent respectively. It is clear that the terms and conditions of the Share Purchase Agreement had been agreed as far back as 20th May, 2004. In effect, an Agreement had been reached on the Share Purchase as far back as 20th May, 2004. That contrary to the submission of the 1st Respondent, the 2nd Respondent was only expected to forward Exhibit BPE1 to the 1st Respondent since parties had earlier agreed on the terms and conditions prior to the decision of the Supreme Court
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which was also reinforced by the apex Court. That it is not a question of forming a new contract through the action at the court below. He canvassed also that it is pertinent to note that the phrase “to provide the mutually agreed purchase agreement” and “to enable the Plaintiff/Appellant pay the agreed 10% of the accepted bid price…” suggests the existence of an agreement as opposed to the formation of a new agreement. This agreement to my mind makes sense and I do accept it as the true position of things. That Exhibit F cannot be said to be an agreement by the 1st and 2nd Respondents due to the fact that 2nd Respondent had by its letter dated 29th January, 2013 asked the 1st Respondent to disregard the earlier Share Purchase Agreement which was sent in error. He therefore urged the Court to resolve these two issues in favour of the appellant.
The 1st Respondent in respect of these issues canvassed that it would be a misconception to say that there was in existence an SPA on 20/05/2004 which the Supreme Court relied upon. That there was no mutual SPA as at 20/05/2004 That the decree of specific performance cannot be read in isolation of the
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understanding and agreements reached at the TBC of May 20, 2004. That the financial bids opening took place on 14th June, 2004. That negotiation for a mutually agreed SPA commenced thereafter. That the Court below rightly made the order for enforcement of the Supreme Court judgment as per the judgment dated 30 September, 2014. He urged the Court to resolve these issues in favour of the 1st Respondent.
The matter of enforcing a decision of the Supreme Court or any other Court is a very simple one. It is strictly meant to give effect to the order of the Supreme Court that issued out the judgment in the case of the parties. When one is called upon to enforce a judgment of a Court it is unnecessary, to start reviewing the judgment of the Court and try to vary or reconfigure the terms of the judgment to be enforced. The argument of the 1st respondent that it is the agreement of the parties as in Exhibit F that was to be executed cannot sail in the face of the express terms of the Supreme Court judgment acknowledging the bid price of US $410 million.
?The specification of the Supreme Court that the 2nd Respondent is to provide the mutually agreed SPA for the
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execution of the parties clearly shows that the mutually agreed SPA was in existence at the time of the judgment. Exhibit F from its provisions shows it was made post judgment. It shows that the agreement contained therein are different in major terms than the agreement of 20th May 2004. The bid price on Exhibit F does not tally with the bid price of US $410 million on Exhibit BPE1.
The contention of the appellant that the Court below?s decree on Exhibit F was not in accord with the bid price decreed by the Supreme Court is correct. From the facts before the Court, we have no doubt about the fact that Exhibit BPE1 is the mutually agreed SPA which the parties need to execute in line with the judgment of the Supreme Court. Furthermore, the orders rolled out by the Court below were not asked for and were not all in tandem with the specific orders of the Supreme Court. The Court below issued orders that were at variance with the judgment of the Supreme Court in its judgment. The judgment of the lower Court as delivered on 30/9/2014 cannot stand.
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From the foregoing, therefore I am of the firm view that these issues two and three are hereby resolved
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in favour of the appellant. By this resolution, this appeal succeeds in part.
The judgment of the Court below in suit No FHC/ABJ/CS/901/2013 delivered on 30t day of September, 2014 is hereby set aside.
Parties are to bear their respective costs.
PETER OLABISI IGE, J.C.A.: I agree.
MOHAMMED BABA IDRIS, J.C.A.: I read in advance the judgment just delivered by my learned brother; STEPHEN JONAH ADAH JCA. I agree with the reasoning and adopt the conclusion and orders reached therein. I also find that the appeal succeeds in part. The judgment of the Court below in suit No. FHC/ABJ/CS/901/2013 delivered on 30th day of September, 2014 is hereby set aside.
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Appearances:
A. George Ikoli, SAN with him, R. Gbingi, Esq., A.S. Lawal, Esq. and A. George, Esq.For Appellant(s)
P.I.N lkwueto, SAN with him, N. Nwatarali, Esq. and O.D. Soyebo, Esq. for the 1st Respondent.
Taiwo Osipitan, SAN with him, A.M. Kayode, Esq., I.O. Anakwe, Esq., C.I.A. Ofogbunem, Esq. and A. Kayode, Esq. for the 2nd Respondent.
For Respondent(s)
Appearances
A. George Ikoli, SAN with him, R. Gbingi, Esq., A.S. Lawal, Esq. and A. George, Esq.For Appellant
AND
P.I.N lkwueto, SAN with him, N. Nwatarali, Esq. and O.D. Soyebo, Esq. for the 1st Respondent.
Taiwo Osipitan, SAN with him, A.M. Kayode, Esq., I.O. Anakwe, Esq., C.I.A. Ofogbunem, Esq. and A. Kayode, Esq. for the 2nd Respondent.For Respondent