INCORPORATED TRUSTEES OF NIGERIAN BAPTIST CONVENTION & ORS v. GOVERNOR OF OGUN STATE & ORS (2016)

INCORPORATED TRUSTEES OF NIGERIAN BAPTIST CONVENTION & ORS v. GOVERNOR OF OGUN STATE & ORS

(2016)LCN/8320(CA)

In The Court of Appeal of Nigeria

On Friday, the 18th day of March, 2016

CA/I/34/2013

RATIO

CONTRACT: WHETHER THE COURT IN CONSTRUING THAT A DOCUMENT IN ORDER TO DISCOVER THE INTENTION OF THE PARTIES SHOULD RESTRICT ITSELF TO THE WORDS USED IN THE DOCUMENT

Now, the general principle of law is that, parties are bound by their agreements. Accordingly, the proper purpose of interpretation of such documents evidencing the agreement(s) of the parties, is to discover the intention of the parties and not to ascribe to the parties what they have not intended by that document. The Court saddled with the duty of construing that document in order to discover the intention of the parties should restrict itself to the words used in the document. In that respect, words or ideas not intended by the parties should not be imported into the document that are not patent on its face, See Obikoya v. Wema Bank Ltd (1991) 7 NWLR (Pt. 201) p.119 at 130; and Amizu v. Nzeribe (1989) 4 NWLR (Pt. 118) p.755. This is so because, the parties to the agreement are presumed to intend what they have in fact written down, and therefore, the words written down by them should be given their ordinary and plain meaning, unless circumstances show or dictate that a particular construction ought to be applied in order to give effect to that particular intention envisaged by the parties. In other words, as a general rule, the document(s) should be accorded their ordinary and plain meaning, so that additional words or clauses not intended by the parties, ought not to be imported into a written agreement or document, unless it is impossible to understand the agreement or document without such additional words or clauses. See U.B.N. v. Nwaokolo (1995) 6 NWLR (Pt. 400) p.127 and U.B.N Ltd v. Prof. Albert Ozigi (1994) 3 NWLR (Pt. 333) p. 385 at 400.
It therefore follows that, a document evidencing an agreement between parties must be construed in its ordinary meaning, especially where the language therein is not only plain but admits of only one meaning. Thus, where a document is clear and unambiguous, a Court of law has only the duty of giving strength to the plain words used. In such a situation the Court should avoid searching for an interpretation that is convenient to it or to one of the parties to the agreement. See Anason Farms Ltd. v. Nal Merchant Bank Ltd (1994) 3 NWLR (Pt. 331) p.241. It is in that guise that My Lord, Aka’ahs, JSC in the case of Adiele Ihunwo v. Johnson Ihunwo & Ors (2013) LPELR ? 2008 4 (SC) summarized the law, thus:
“The meaning to be placed on a contract is that which is the plain, clear and obvious result of the term used in the agreement. See: Aouad v. Kessrawani (1956) NSCC 33. When construing documents in dispute between the parties, the proper course is to discover the intention or contemplation of the parties and not to import into the contract ideas not patent on the face of the document. See: Amadi v. Thomas Aplin Co., Ltd. (1972) 7 NSCC 262. Where there is a contract regulating any arrangement between the parties, the main duty of the Court is to interpret the contract to give effect to the wishes of the parties as expressed in the contract document. See Oduye v. Nigeria Airways Limited (1987) 2 NWLR (Pt. 55) 126. In the construction of documents, the question is not what the parties to the document may have intended to do by entering into that document, but what is the meaning of the words used in the document. See: Amizu v. Dr. Nzeribe (1989) 4 NWLR (Pt.118) 755. However, where the meaning of the words used is not clear, the Court will fall back on the intention behind the words.?
See also Fidelity Bank Plc v. Monye (2012) 10 NWLR (Pt.1301) p.1 and A.G., Nasarrawa State v. A.G., Plateau State (2012) 10 NWLR (Pt.1309) p.419.
In that respect, where the agreement is embodied in several documents, all the documents should be read together in order to discover the intention of the parties. See Royal Exchanges Assurance Nig. Ltd v. Aswani ile Industries Ltd (1991) 2 NWLR (Pt.176) p.639 at 669 Udeaga v. Benue Cement Co. Plc (2006) 2 NWLR (Pt .965) p.600, A.G; Kaduna State v. Atta (1986) 4 NWLR (Pt.38) p.785 and Alh. M. K. v. F.B.N. Plc (2011) LPELR 8971 (CA). per. HARUNA SIMON TSAMMANI, J.C.A.

THE PRINCIPLE OF STATUTORY INTERPRETATION;HOW TO DETERMINE THE MEANING OF EXPRESSIONS OR PHRASE, IN AN ENACTMENT
The principle of statutory interpretation has become dominant in all common law countries and are still being applied today. This country is no exception. This has for a long while been the position of the Supreme Court of Nigeria as can be read in many cases, as Uwaifo v. Attorney-General (1982) 7 S.C. P.124 at 185, where Idigbe, J.S.C. said:-
“In order to determine the meaning of the many expressions or phrase, in an enactment the first question to ask always is “what is the natural or ordinary meaning of the words used therein the con in the statute”, and it is only when the ordinary meaning of those words lead to some result which cannot reasonably be supposed to have been the intention of legislature that it becomes proper to look for some other possible meaning of the words concerned.”
In the interpretation of statutes therefore, it is to be presumed that the law maker does not intend to perpetrate injustice; thus, in interpreting statutory provisions, the Court must ensure that justice is done and not sacrificed on the altar of technicality. See Abubakar v. Nasamu (No.2) (2012) 17 NWLR (pt.1330) p.523 at 578; Buhari v. Yusuf (2003) 14 NWLR (pt. 841), p.446 and Okoli v. Udeh (2008) 10 NWLR (Pt.1095) p.213. per. HARUNA SIMON TSAMMANI, J.C.A.

THE PRINCIPLE OF STATUTORY INTERPRETATION; THE IMPORT OF THE WORD “SHALL” IN THE CONSTRUCTION OF STATUTE
In the construction of statutes generally, when the word used is “shall”, it imports that a thing must be done. It is almost always construed to import a form of command or mandate which is given a compulsory meaning or denoting an obligation. See Nwankwo v. Yar’adua (2010) 12 NWLR (Pt.1209) p.518; Umeanadu v. A.G. Anambra State (2008) 9 NWLR (pt.1091) p.175 and Bamaiyi v. AG., Federation (2001) 12 NWLR (pt.727) p.468 at 480. In other words, in its ordinary meaning, the word “shall” is a word of command which is usually given an obligatory meaning and denoting compulsion. It therefore does not give room for discretion and therefore peremptory. The word may however be used as implying futurity; or giving a directive or permission. In other words, the word ?shall” is sometimes used to imply or intended for directing the doing of a thing only; in which case, it may be construed as “may” which is merely permissive. See Evong v. Messrs Obono-Obono & Asso. (2012) 6 NWLR (pt.1296) p.338 and Okorocha v. U.B.A. Plc (2011) 1 NWLR (pt.1228) p.348. Generally, however, whether the word ?shall? is to be construed in a mandatory or directory sense would depend on the circumstances of the case. Thus, in the case of Amokeodo v. I.G.P. (1999) 6 NWLR (Pt. 607) p.467 at 481 paragraphs B ? C, it was held that:
“No universal rule can be laid down for determining whether provisions of a statute are mandatory or directory; in each case, the intention of the legislature must be ascertained by looking at the whole scope of the statute and in particular at the importance of the provisions in question in relation to the general object to be secured.”
It therefore means that, the meaning to be attached to the word “shall” used in a Statute, would depend on the consequences of disobedience to the command as provided by the Statute. Accordingly, if the provision of the Law requires that certain formalities be performed as condition precedent for the validity of the transaction without imposing any penalty for non-compliance, the condition therein would be treated as directory only,. See A. T. Ltd v. A.D.H. Ltd (2007) 15 NWLR (Pt.1056) p.118 at 150-151 paragraphs H – G; Adeosun v. Gov., Ekiti State (2012) 4 NWLR (pt.1291) p.581 and INEC v. Iniama (2008) 8 NWLR (Pt.1088) p.182 at 199 paragraphs E – F. In determining the issue therefore, the Court is enjoined to try to get at the real intention of the Legislature by carefully attending to the whole scope of the Statute under construction. per. HARUNA SIMON TSAMMANI, J.C.A.

PRACTICE AND PROCEDURE: THE IMPLICATION OF THE IMPOSITION OF PENALTY FOR NON-COMPLIANCE OR DISOBEDIENCE

The law is that, where a penalty for non-compliance or disobedience has been imposed, the transaction will be illegal and void, but where none is prescribed, the duty to be performed will be treated as merely directory; and failure will not nullify or void the transaction. See Pan Bisbilder Ltd v. F.B.N (2000) FWLR (pt.2) p.177 and C.B.N. v. Eluma (2001) FWLR (Pt.40) p.1615. per. HARUNA SIMON TSAMMANI, J.C.A.

JUSTICES

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

Between

1. INCORPORATED TRUSTEES OF NIGERIAN BAPTIST CONVENTION
2. INCORPORATED TRUSTEES OF CHURCH OF NIGERIA (ANGLICAN COMMUNION), EGBA WEST DIOCESE.
3. INCORPORATED TRUSTEES OF CHURCH OF NIGERIA (ANGLICAN COMMUNION) EGBE DIOCESE.
4. INCORPORATED TRUSTEES OF CHURCH OF NIGERIA (ANGLICAN COMMUNION) IJEBU DIOCESE
5. INCORPORATED TRUSTEES OF CHURCH OF NIGERIA (ANGLICAN COMMUNION) IFO DIOCESE.
6. INCORPORATED TRUSTEES OF CHURCH OF NIGERIA (ANGLICAN COMMUNION) AWORI DIOCESE.
7. INCORPORATED TRUSTEES OF THE AFRICAN CHURCH
8. INCORPORATED TRUSTEES OF METHODIST CHURCH, NIGERIA
9. INCORPORATED TRUSTEES OF CATHOLIC DIOCESE OF ABEOKUTA
10. INCORPORATED TRUSTEES OF CATHOLIC DIOCESE OF IJEBU-ODE
11. PROF. AKIN MABOGUNJE, CHAIRMAN BOARD OF TRUSTEES OF (ADEOLA ODUTOLA COLLEGE, IJEBU-ODE) ESTATE OF LATE CHIEF T. A. ODUTOLA.
12. CHIEF A. E. O. MACJOB PROPRIETOR OF MACJOB GRAMMAR SCHOOL, ABEOKUTA
13. THE REGISTERED TRUSTEES OF MAYFLOWER SCHOOL, IKENNE. Appellant(s)

AND

1. GOVERNOR OF OGUN STATE
2. EXECUTIVE COUNCIL OF OGUN STATE
3. OGUN STATE MINISTRY OF EDUCATION, SCIENCE & TECHNOLOGY.
4. OGUN STATE HOUSE OF ASSEMBLY. Respondent(s)

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Ogun State High Court, Abeokuta Judicial Division, delivered by Hon. Justice N. I. Saula on the 21st day of December, 2011.

By an Originating Summons dated the 22/6/2011 and filed the 23/6/2011, the Appellants on record, who were plaintiffs, placed before the Court below, the following questions for determination:
1. Whether it is unlawful for the 2nd Defendant in the exercise of its powers under Section 5 of the Education (Post Primary Institution) (Special Provisions) Law, Cap. 36 Laws of Ogun State of Nigeria, to have directed that the provisions of the said Law shall not apply to the various schools returned to the Claimants vide letters dated 15th October, 2010 (particulars of which are set out in the schedule here under) and other letters and Agreements entered into between each of the Claimants and the 1st ? 3rd Defendants.
?2. Whether it is lawful for the 1st, 2nd and 3rd Defendants to resume the application of the Education (Post Primary Institutions) (Special Provisions) Law, Cap.36 Laws of Ogun

State of Nigeria to the various post primary institution released to the Claimants vide letters dated 15th October, 2010 or and other letters and Agreements between each of the Claimants and the 1st – 3rd Defendants which institutions are set out in the schedule hereunder.
3. Whether the Ogun State House of Assembly, House Resolution No. 251 “Reversal of Illegal Return of Schools To Initial Owners” moved and passed by the 4th Defendant on Wednesday, 1st June, 2011 was lawful and within the legislative functions of the Ogun State House of Assembly under Section 100 and 128 of the Constitution of the Federal Republic of Nigeria or any other law as to reverse the exercise of the power of the Executive Council under Section 5 of the Education (Post Primary Institutions) (Special Provisions) Law, Cap.36 Laws of Ogun State of Nigeria.

It was contended that if the answer to the above stated questions are in the negative, the Court should grant to the Claimants/Appellants the following reliefs:
(1) A DECLARATION that in virtue of the letter of confirmation of Approval sent to each of the Claimants by the Ogun State Government through the Ministry of

Education, Science and Technology dated 15th of October, 2010 and other letters and Agreements in that behalf (particulars of which are set out in the schedule hereto) the named post primary institutions(s) opposite the name of each of the Claimants thereof have been released from the applications of the provisions of the Education (Post-Primary Institutions) (Special Provisions) Law, Cap.36 Laws of Ogun State.
(2) A DECLARATION that the purported House Resolution No.251 of the 4th Defendant titled “Reversal of Illegal Return of Schools to Initial Owners” passed by the 3rd Defendant and set out as item 10 in the Votes and Proceedings No.180 of Wednesday 1st June, 2011 is unconstitutional, null and void and of no effect.
(3) AN ORDER setting aside the said Ogun State House of Assembly Resolution 251 made on the 1st June, 2011 aforesaid.
(4) AN ORDER of injunction restraining the Defendants by themselves, their servants and or agents from applying the provisions of Section 3 and 4 of the Education (Post-Primary Institutions) (Special Provisions) Law, Cap.36 Laws of Ogun State and or any other directive unknown to Law to the Claimants’ Institutions

set out in the schedule hereunder.

The Originating Summons was supported by an affidavit of 24 paragraphs deposed to by one Venerable Olukunmi Adekunle, who described himself as a Reverend Gentleman and Legal Practitioner; and the Synod Secretary, Egba Anglican Diocese. To the affidavit were attached the respective letters conveying the Approval of Government for the return of the schools to the Appellants, details of expenses incurred in the development of the respective schools, etc and which documents were marked as Exhibits “VEN 1 – 38” respectively. The 13th Appellant was later joined in the action by leave of the Court. The Respondents filed Counter-Affidavit of 15 paragraphs deposed to by Omolara Osanyin, State Counsel in the Ogun State Ministry of Justice.

?The facts leading to the action can be traced to the promulgation of Education (Post-Primary Institutions) (Special Provisions) Law, Cap.36, Laws of Ogun State which became applicable throughout the State. The Law was promulgated by the Military Administration of Western State of Nigeria, of which the present Ogun State was part of; and with the creation of Ogun State in 1976, it became a

Law of Ogun State. By Sections 3(1) and 4(1) of the said Law, opening of private post-primary institutions were prohibited and the existing ones abolished. The relevant provisions of the Law are Sections 3(1) and 4(1) which stipulate as follows:
“3.(1) Notwithstanding anything contained in the principal Law or any regulations made hereunder in regard to private post-primary institutions, every such private post-primary institution in the State shall be deemed to be a public institution as from the 1st day of April, 1974.
4.(1) Notwithstanding anything contained in the principal Law or any regulations made thereunder in regard to private post-primary institutions, no person shall, as from the date of the publication of this Law in the State Gazette, open or conduct a private post-primary institution in the State.”

?By the above stated provisions therefore, all existing post-primary institutions in Ogun State were abolished, while the opening of new ones was prohibited. The Appellants herein were the original proprietors of the various post-primary institutions listed under their names in the schedule to the Originating Summons. That was the

position until the Ogun State Ministry of Education, Science & Technology, Department of Secondary Schools, conveyed to the Claimants/Appellants, vide letters all dated the 15/10/2010, the provisional approval of return of the respective schools hitherto taken over by the Ogun State Government pursuant to the Education (Post-Primary Institutions) (Special Provisions) Law (supra) (in this judgment to referred to as ‘the Law’). To solidify the action of the Government, a Memorandum of Understanding was entered into between the Government and the various proprietors of the Institutions involved, and who are the Appellants herein.

?According to the Claimants/Appellants, each of them retook possession of the schools, and proceeded to spend huge sums of money in the renovation and development of the schools. The Appellants then contended that they were basking in the joy of the return of their schools to them, when on the 1st day of June, 2011, the 4th Respondent (the Ogun State House of Assembly), at one of its sittings, passed a Resolution No.251 wherein it adopted a Motion titled “Reversal of Illegal Return of Schools to Initial Owners”, purporting to

revoke the return of the various schools to the Claimants/Appellants. That pursuant to the passage of that Resolution by the 4th Respondent, top officials of the Ogun State Government, invited them, and informed them of the desire of the Ogun State Government to reverse the return of the schools and thereby resume the application of the Education (Post-Primary Institutions) (Special Provisions) Law (supra) to those institutions. It is in those circumstance that the Appellants issued the Originating Summons which culminated into this appeal.

At the hearing of the matter, the parties filed and served Written Addresses, which they adopted with some further adumbrations. In a considered judgment delivered on the 21st day of December, 2011, the learned trial Judge resolved the issues substantially against the Appellants. Being dissatisfied with the judgment, they have now appealed to this Court.

The Notice of Appeal which is at pages 293 – 296 of the Record of Appeal was dated and filed on the 01/03/2012. It consists of four (4) Grounds of Appeal as follows:
?GROUNDS OF APPEAL
1. The learned trial Judge erred in Law when she (sic) held

that the named Post Primary Institutions were not returned to the Claimants when:-
(a) There was evidence of vesting of management in the Claimants.
(b) what is proscribed by the Section 4(1) of the Education (Post-Primary Institutions) (Special Provisions) Law, Cap.36 of Ogun State is the opening or conduct of such Private Post-Primary Institutions.
(c) Managing a Post Primary Institution is same as conducting such Institution.
2. The learned trial Judge having held that it was not the responsibility of the Claimants but that of the body that made the order, the Executive Council of Ogun State and the owner of the Gazette to publish the order, erred in law when:-
(a) After interpreting the opening part of Section 5 of the Law to involve the exercise of a discretion by the Executive Council proceeded to interpret the word “shall” in the other part of the section to imply an obligation when that approach which in the circumstance of the fault of the Executive Council to publish in the Gazette would frustrate the policy and object of Section 5.
(b) Section 5 is an administrative power conferred on the Executive Council and the

doctrine of legitimate expectation applies in favour of the claimants with respect to the obligation of the Executive Council to publish in the official Gazette.
(c) The learned trial Judge failed to consider the doctrine of legitimate expectation which was canvassed before her.
3. The learned trial Judge having held that a discretion was bestowed on the Executive Counsel by the use of the word ?may” as to the power of granting an exception for the application of the Law in respect of named Post-Primary Institutions in the State erred in Law in interpreting the word “shall” as to the publication of such order as a mandate when:-
(a) The non-publication does not render the exercise of the discretion a nullity on the basis of ultra-vires of the action by the Executive Council.
(b) The non-publication of the order of return of management by the Executive council in respect of the Post-Primary Institutions affected would impose criminal liability on the Claimants as contained in Section 3(2) of the Law which cannot be the intention and object of the Law.
(c) A proper construction of the Law as a whole would have ensured that the

Executive Council that used its discretion by non-publication of its order of return of management of the affected Post-Primary Institutions in the official Gazette and thereby claim the benefit thereof to thwart the policy and objects of the Law is not entitled to the protection of the Court.
4. The learned trial Judge erred in law when she (sic) held:-
“That the non-publication of the order of return of the schools in the State Gazette rendered the order made invalid or incompetent when:-
(a) The administrative function of publication was not that of the Claimant but that of the Executive Council of Ogun State who is the owner of the Gazette.
(b)The non-publication could not render a valid act of exercise of lawful discretion an

As required by the Rules of this Court, the parties filed and exchanged Briefs of Arguments. The Appellants’ Brief of Arguments, settled by Bambo Adesanya SAN was dated and filed on the 04/6/2015. Therein two issues were articulated for determination as follows:-
(a) Whether on a proper construction of Sections 3(1), 4(1) and 5 of the Education (Post-Primary institutions) (Special Provisions) Law of Ogun

State, the learned trial Judge was right in holding that the Post-Primary Institutions were not returned to the Appellant by the Respondents. (Ground 1)
(b) Whether the learned trial Judge was right in holding that the non-publication of the order of return of schools to the Appellants by the Respondents in the State Gazette rendered the return of the schools invalid or incompetent.
(Grounds 2, 3 and 4).

The Respondents, Brief of Arguments settled by Adebimpe F. Obienu was dated the 08/10/2015 and filed the 09/11/2015 but Deemed filed on the 16/11/2015. The Respondents adopted the two issues formulated by the Appellants.

Upon being served the Respondents’ Brief of Arguments, the Appellants filed an Appellants’ Reply Brief of Arguments. It was dated and filed the 27/11/2015. Considering that the Respondents adopted the issues as settled for determination by the Appellants as the issues for determination in this appeal, I shall determine this appeal on those issues as formulated by the Appellants. I begin with issue one (1).

?Now, in arguing issue one (1) Mr. Adesanya, SAN of learned counsel for the Appellants reproduced the provisions of Sections 3(1), 4(1) and 5 of the Education

(post-primary Institutions) (special provisions) Law (supra) i.e. the Law, to contend that, it is clear that, by Section 3(1) of the Law, all post-primary institutions in Ogun State were deemed to be public institutions as from the 1st day of April, 1974; and that by Section 4(1) of the Law, the opening or conduct of new post-primary institutions were prohibited, save where such institutions were exempted by Section 5 of the Law. That, in the instant case, it is the case of the Appellants that’ by various letters, all dated the 15/10/2010, the 1st and 2nd Respondents exercised their discretion as given them under Section 5 of the Law to return the various institutions established by them, and which were taken away from them with the passage of Law on the 1st day of April, 1974. On the other hand, the Respondents contend that, the institutions were never returned to the Appellants because such act was not published in the official Gazette of Ogun State as required by Section 5 of the Law. Furthermore, that the Memorandum of under-standing (Exhibit ?VEN 36?) signed between the parties is not in consonance with return of the institutions to the

Appellants within the contemplation of the Law.

Learned counsel for the Appellants referred to the findings of the trial Court at page 288 line 12 – 289 line 6 of the Record of Appeal, to further submit- that, whilst the trial Court agreed that the Respondents exercised the power to return the schools as empowered by the Law, held that the schools were not properly returned. It was also submitted that, the general ban on post-primary institutions in the State is against the “opening and conduct” of such private schools; and therefore, if there is any exemption under Section 5 of the Law, it is to allow the “opening and conduct” of the institutions. That the learned trial Judge of the Court below, laid emphasis on the words “firming out” and ‘manager’ as used in Exhibit “VEN 34″, to conclude that, what the Respondents did vide the letters of 15th October, 2010 was not a return of the schools but a contract for management of the schools. It was therefore submitted by learned counsel for the Appellants that, the learned trial Judge erred by so holding. That, managing an institution as contained in Exhibit ?VEN 34” is the same as “conducting” such

institution, and that, once the power granted by Section 5 of the Law has been invoked, by managing the schools, the Appellants would not fall within the prohibition of Section 4 of the Law which prohibits the “opening or conduct” of a private secondary school. It was accordingly submitted that, Exhibits “VEN 2” and ?VEN 34? duly returned the schools to the Appellants.

?In response, learned counsel for the Respondents contended that, by Section 3 of the post-Primary Public Institutions (Acquisition), all lands or other properties being used for the purposes of or in connection with the running of any Post-Primary Institution in Ogun State have been vested in the Ogun State Government since 1975; and that compensation was paid to as many proprietors of such schools taken over by Government that came forward, in accordance with Law. That, that Law has not been repealed. and therefore, the conduct of the Respondents is not expropriatory, and thus, such schools are still vested in the Respondents in as much as the procedure laid out in Section 5 of the Law Education (Post-Primary Institution) (Special Provisions) Law (supra) had not been complied

with.

Learned Counsel for the Respondents also submitted that, the only document which could have vested the Institutions in the Appellants is the Memorandum of Understanding (Exhibit ?VEN 36?), but that such document cannot take the place of the Principal Law, when the Law has not been repealed. That, assuming (which was not conceded), that the Memorandum of Understanding vested the said schools in the appellants, it is only a temporal one, as the document provides for “termination clause”, giving right to either party to terminate the arrangement, with the implication that the proprietary rights to such schools would revert to the Respondents.

It was further contended by learned counsel for the Respondents that, the essence of Sections 3(1) and 4(1) of the Law is that, as from the 1st day of April, 1974, the establishment of post-primary Institutions in Ogun State by any person has been prohibited, and that, not even the Executive Council of the State can allow anything to the contrary. That, any person who violates that Law, is liable to penalty and any such institution established would be illegal. It was therefore submitted that,

where, the Ogun State Government by contract purports to hand over any Post-Primary School or converts a public Post-Primary Institution to a private one, while the Law still exists, such contract would be illegal. That, in such a situation, the parties have committed an illegality and thus the contract would be void and unenforceable. The case of Yusuf v. Oyetunde (1975) N.C.L.R. p.201 at 208 was cited in support. The case of Credit Swisse v. Allerdale Borough Council (1996) 4 All E.R. p.129 was further cited to submit that, it is permissible for a public authority to plead the invalidity of its own conduct. We were accordingly urged to resolve this issue in favour of the Respondents.

Replying on points of law, learned counsel (silk) for the Appellants contended that, the agreement as stipulated in the Memorandum of Understanding (“Exh. VEN 36?) contains on the face of it no illegality as the Respondents firmed out the management of the schools to the Appellants, and the Appellants were by paragraph 3.3 of the Agreement to use their best endeavours to assist the Respondents in the management of the schools under them.

?It was further contended

for the Appellants that, the inapplicability of the Law to the Appellants can be achieved in either of two ways. That is, by Agreement as in Exhibit “VEN 36” wherein the Respondents agreed that the Appellants should manage or “conduct” the schools, thereby exempting them from the application of Sections 3 and 4 of the Law. That, the 2nd way could be to have the Executive Council give an “order” that the provision of the Law would not apply to the Appellants’ schools so as to enable them manage or conduct the schools. It was then submitted that, if the 2nd method is used or adopted, then it would be mandatory that the ‘order’ be published in the State Gazette.

?Upon a careful consideration of the affidavit evidence of the parties, I find as established that before the Education (Post-Primary Institutions) (Special Provisions) Law (supra) was promulgated in 1974, all the post-Primary institution listed in the Schedule to the Originating Summons were private Post-Primary Institutions established (opened) and conducted by the Appellants. It is not disputed that by Sections 3 and 4 of the Law, all the Institutions ceased to be private post-primary institutions,

and their management or conduct was vested in the Ogun State Government. It is also not in dispute that, by letters all dated the 15th day of October, 2010, and which letters have been exhibited in the affidavit in Support of the Originating Summons as ?VEN 1 – 17″, the Ogun State Government under the hand of the Ministry of Education, Science and Technology (Department of Secondary Schools), conveyed to the Appellants the ?CONFIRMATION OF PROVISIONAL APPROVAL? of the respective post-primary schools listed under the name of the respective Appellants, “AS PRIVATE SECONDARY SCHOOLS?. In each of the letters, you find the below stated part of the letter, which reads:
?2. I am pleased to inform you that your request for the return of? in the? to you has been favourably considered and approved by the State Government following your satisfactory performance during the probation period.
3. However, you should please note, that the continued existence and operation of the institution as a private secondary school will depend largely on total compliance with the general rules, regulations and guidelines underlying the running of private secondary schools in the

State particularly the provisions of the Ogun State, Nigeria, Education Law of 1978, Cap. 35 and the Guidelines of the Ministry on the Establishment of Private Secondary Schools (Jan. 2007 Edition).?

The above reproduced clauses in VEN 1 – VEN 17 are the relevant portions in the construction of the relationship created by those documents, between the Appellants and the Respondents. I am however of the view that the effect of those documents cannot be conclusively construed without reading same along with the Memorandum of understanding (Exhibit ?VEN 35?) which was executed on the 1st day of December, 2010. It is therefore my view that, in determining the issue under consideration, the documents to be considered are the various letters issued to the Appellants purporting to return the various schools to them, and the various Memoranda of Understanding executed between the Appellants and the Respondents. Those two documents must therefore be construed in order to find out the nature of the relationship created between the parties.

?Now, the general principle of law is that, parties are bound by their agreements. Accordingly, the

proper purpose of interpretation of such documents evidencing the agreement(s) of the parties, is to discover the intention of the parties and not to ascribe to the parties what they have not intended by that document. The Court saddled with the duty of construing that document in order to discover the intention of the parties should restrict itself to the words used in the document. In that respect, words or ideas not intended by the parties should not be imported into the document that are not patent on its face, See Obikoya v. Wema Bank Ltd (1991) 7 NWLR (Pt. 201) p.119 at 130; and Amizu v. Nzeribe (1989) 4 NWLR (Pt. 118) p.755. This is so because, the parties to the agreement are presumed to intend what they have in fact written down, and therefore, the words written down by them should be given their ordinary and plain meaning, unless circumstances show or dictate that a particular construction ought to be applied in order to give effect to that particular intention envisaged by the parties. In other words, as a general rule, the document(s) should be accorded their ordinary and plain meaning, so that additional words or clauses not intended by the parties,

ought not to be imported into a written agreement or document, unless it is impossible to understand the agreement or document without such additional words or clauses. See U.B.N. v. Nwaokolo (1995) 6 NWLR (Pt. 400) p.127 and U.B.N Ltd v. Prof. Albert Ozigi (1994) 3 NWLR (Pt. 333) p. 385 at 400.
It therefore follows that, a document evidencing an agreement between parties must be construed in its ordinary meaning, especially where the language therein is not only plain but admits of only one meaning. Thus, where a document is clear and unambiguous, a Court of law has only the duty of giving strength to the plain words used. In such a situation the Court should avoid searching for an interpretation that is convenient to it or to one of the parties to the agreement. See Anason Farms Ltd. v. Nal Merchant Bank Ltd (1994) 3 NWLR (Pt. 331) p.241. It is in that guise that My Lord, Aka’ahs, JSC in the case of Adiele Ihunwo v. Johnson Ihunwo & Ors (2013) LPELR ? 2008 4 (SC) summarized the law, thus:
“The meaning to be placed on a contract is that which is the plain, clear and obvious result of the term used in the agreement. See: Aouad v. Kessrawani

(1956) NSCC 33. When construing documents in dispute between the parties, the proper course is to discover the intention or contemplation of the parties and not to import into the contract ideas not patent on the face of the document. See: Amadi v. Thomas Aplin Co., Ltd. (1972) 7 NSCC 262. Where there is a contract regulating any arrangement between the parties, the main duty of the Court is to interpret the contract to give effect to the wishes of the parties as expressed in the contract document. See Oduye v. Nigeria Airways Limited (1987) 2 NWLR (Pt. 55) 126. In the construction of documents, the question is not what the parties to the document may have intended to do by entering into that document, but what is the meaning of the words used in the document. See: Amizu v. Dr. Nzeribe (1989) 4 NWLR (Pt.118) 755. However, where the meaning of the words used is not clear, the Court will fall back on the intention behind the words.?
See also Fidelity Bank Plc v. Monye (2012) 10 NWLR (Pt.1301) p.1 and A.G., Nasarrawa State v. A.G., Plateau State (2012) 10 NWLR (Pt.1309) p.419.
In that respect, where the agreement is embodied in several documents, all the documents should be

read together in order to discover the intention of the parties. See Royal Exchanges Assurance Nig. Ltd v. Aswani ile Industries Ltd (1991) 2 NWLR (Pt.176) p.639 at 669 Udeaga v. Benue Cement Co. Plc (2006) 2 NWLR (Pt .965) p.600, A.G; Kaduna State v. Atta (1986) 4 NWLR (Pt.38) p.785 and Alh. M. K. v. F.B.N. Plc (2011) LPELR 8971 (CA).

Now, in the determination of this issue, the learned trial Judge found at page 284 of the Record of Appeal that, the Appellants and the Ogun State Government had entered into an agreement in respect of the private post-primary institutions hitherto operated by the Appellants but taken over by the Respondents in 1974. That, the parties entered into the agreement termed “Memorandum of Understanding” dated the 1st of December, 2010. The learned trial Judge then made findings as follows:
?It is necessary to find out the import of the correspondence of 15th October, 2010 exhibited to the Affidavit in support of the originating summons as ?VEN 1 – VEN 17? and ?MO5? in respect of 13th Claimant.
By wordings of the letter, (since they are all the same I shall pick and refer to ?VEN 1″ for

this purpose) it conveyed the approval of the state Government for the return of the Baptist High School, Ilaro to the Proprietor i.e, the Original Proprietor to be run as a private secondary school subject to compliance with rules, regulations and guidelines particularly the provisions of the Ogun State Education Law, Cap. 35 of 1978 as well as the guidelines for the Ministry of Education on Establishment of Private secondary Schools; 2007 Edition.
By these letters it will appear that the Ogun State Government took the affected schools out of the application of Sections 3 and 4 of Education (Post-Primary Institution) (Special Provisions) Law, Cap.36, Laws of Ogun State, 1978.
There is no doubt and parties also agree that the Executive Council of Ogun State has the power to take any school out of the operation of those Sections of the Law”‘

The learned trial Judge then cited Section 5 of the Law, to rightly conclude that the Law vests the Executive council with the discretion to exempt any institution it chooses from the operation of the Law. For reasons which I shall consider under issue two (2), the learned trial Judge concluded at pages 288 –

289 of the Records that:
?It will appear to me that parties did not really pay attention to wordings of the Memorandum of understanding. The purport of the Agreement can be properly garnered from the preamble at paragraph D.”

Construing the said paragraph D of the Memorandum of Understanding, the learned trial Judge held that:-
?The expression “firming out” is definitely not the same as “returning to the original owner.” The term “Manager” in reference to the respective Claimants in the Memoranda of Understanding is therefore not a misnomer.
The Government would appear to have by the Memorandum of Understanding negated what it purported to have given the claimants in the letters of 15th October, 2010 as firming out the schools to them was not a return of same to them. Firming out a job out to someone. I can see no illegality in the Agreement entered by the parties vide the Memorandum of Understanding and I hold same binding on them.”

On the whole therefore, it was the decision of the learned trial Judge that, there was no return of the schools to the Appellants.

?In order to determine whether the learned trial Judge was right in finding

and concluding that, there was no return of the schools to the Appellants, it is necessary to consider and construe the import of the letters ?VEN 1 – VEN 17?. By the heading of the letters Exhibit “VEN” series, it is clear that what was conveyed or communicated to the Appellants is not an “outright return” of the post-primary schools’ but a “Provisional approval” for the return of the schools. The term “Provisional” is defined by the Merriam – Webster Dictionary as; “existing or accepted for the present time but likely to be changed; serving for the time being.” The Black’s Law Dictionary (8th Ed.) on the other hand defines ?provisional” as; “temporary or conditional”. By those definitions therefore, the said letters (?VEN 1 – VEN 17?) what was communicated to the Appellants was a temporary or interim measure or act. It was done conditional on the occurrence of certain events. This fact is justified by paragraph 2 of the said letters which stated that:
“2. However, you should please note, that the continued existence and operation of the Institution as a private secondary school will depend largely on total compliance with

the general rules, regulations and guidelines underlying the running of private secondary schools in the State particularly the provisions of the Ogun State Nigeria Education Law of 1978, Cap.35 and the Guidelines of the Ministry on the Establishment of private Secondary Schools. (January 2007 Edition).”

?It would therefore be seen that the return of the schools to the Appellants was provisional and subject to satisfactory compliance with the Principal Law and Guidelines for the Establishment of Private Secondary Schools. It would be seen that no reference was made in the letters to the Memoranda of Understanding between the Appellants and the Ogun State Government. The reason is not far to find. The said letters, the exhibits “VEN 1 – VEN 17″ were dated the 15/10/2010. Only ?VEN 5” and “VEN 9? were made on the 11/3/2011 and 01/3/2011 respectively. The Memoranda of Understanding on the other hand were executed on the 1st of December, 2010. I am therefore of the view that, it would be safe to conclusively presume that the Memoranda of Understanding crystalized the agreement between the Appellants and the Ogun State Government. That being so, in

order to understand the nature of the right conveyed to the Appellants by the Ogun State Government in the schools in question, it would be necessary to give a wholistic reading and construction to the said Memoranda of Understanding. Fortunately, the said Memoranda of Understanding are in pari materia.

After a careful reading of the various clauses of the said Memoranda of Understanding, I am of the view that, clauses A, B, C, D, E, 2.1, 8.1 are relevant to the determination of the issue under consideration. For clarity and ease of understanding, I endeavor to reproduce them below:
A. In 1975, the Western State Military Administration, having reviewed its educational system, took over some private secondary schools for the purpose (among many others) of preventing discriminatory admission policies and unifying standards in secondary schools in Western State.
B. With the creation of Ogun State in 1976, these private secondary schools were inherited as public schools and maintained by the Government.
C. Due to the consistent increase in the schools’ enrolment figures witnessed in Ogun State in the last decade, and the increasingly heavy

financial and administrative burden which the State has had to shoulder in the education sector, the need has arisen for the Government to again encourage active participation of other stakeholders in the sustenance and development of the State’s education industry.
D. The Government is therefore desirous of firming out some of these schools to professional administrators and Religious Missions to manage in order to ensure greater efficiency, financial prudence and a significant reduction of Government’s capital outlay in the education sector.
E. The Manager, being the former owner of the school and a reputable Religious Mission with a sound pedigree in education management and service delivery, has agreed to manage the schools for and on behalf of the Government and to provide additional funding and infrastructure for the school.

?The simple import of the above stated preamble to the Memoranda of Understanding is that, the Government deemed it necessary to take over some private secondary schools in order to prevent discriminatory admission policies and to unify standards in secondary schools in the State. However, the Government realizing the

consistent increase in enrolment into those secondary schools, with the attendant increase in financial and administrative needs for the management of those schools, it resolved to invite certain professional educational administrator’s and Religious Missions to participate in the management of those schools. Since the Appellants, who were the former owners of those schools, and from whom the Government took over the schools were considered by the Government to have sufficient experience, the Government decided to firm out the schools to them to manage. By that arrangement, it was believed that, greater efficiency in the management of those schools would be attained, and the financial and management burden Government had to bear would be significantly reduced. That is why the Managers, who are the Appellants, to whom the schools were “firmed out” to “manage” agreed “to manage the schools for and on behalf of the Government” and to provide additional funding and infrastructure for the schools.

?To fully Understand the scope and import of the above stated clauses in the Memoranda of Understanding, it is necessary to explain what the terms “firm out” and

?to manage” mean within the con of the Agreement. In my understanding, the act of firming out a business is an arrangement whereby the owner of a business concern or firm contracts out the management of the firm or business to another person. By that arrangement the title or ownership of the business or firm remains in the owner, with only the day-to-day running of the business going to the other party. In other words, the owner of the business does not surrender ownership but grants only the management aspect to the other party.The words “manage” on the other hand, has several connotations, but “management” as an adjective may mean; the conducting or supervising of something (such as a business); or the judicious use of means to accomplish an end. It may also mean the collective body of those who manage or direct a business, firm or enterprise. See Merriam ? Webster Dictionary. For our purposes, “management” would mean “the conducting” of the schools subject of the Memoranda of understanding. It is for that reason that, the Appellants have been described in Clause ?E” of the Memoranda of Understanding as “The Manager(s)”, and the scope of

whose duties under the Agreement have been clearly spelt out in Clause 4 of the Memoranda of Understanding.

Now, if recourse is had to Section 4 of the Education (Post-Primary Institutions) (Special Provisions) Law (supra), it would be seen that there is a dichotomy between the words “open” and “conduct”. In other words, there is a distinction between “opening a post-primary institution” and “conducting a private post-primary school” within the con of the Law. To my mind, to “open? within the contemplation of the Law simply means to establish, while to “conduct”: means to manage or administer. The Law therefore prohibits both the “opening” and “conducting” of private post-primary schools in Ogun State. Section 5 of the Law however gives power to the Ogun State Executive Council to give exemption to the “opening” or “conduct” of private post-primary schools. That is what the Ogun State Executive Council did in the instant case, as evidenced by the Memoranda of Understanding signed between it and the Appellants.

?The crucial issue to be determined now is whether, what was granted to the Appellant, by way of exemption from the operation of

Sections 3(1) and 4(1) of the Law, was “a return” of the schools to the Appellants as understood and vigorously contended by the Appellants. The issue can be understood within the con of Clauses A, B, C, D and E to the Memoranda of Understanding, which form the preamble to the Agreement, and thus explaining the purpose of the Agreement between the parties. To my understanding, those clauses, and other clauses in the Agreement, which I shall refer to anon, do not evince an intention by the Ogun State Government “to return” the schools to the Appellants, who were the original owners of the schools. To return within the con of the Agreement, to my mind is not a legal term but an ordinary English word, which when used as put forward by the Appellants, would mean to restore the schools to the former owners. It also means to give back the schools to the former owners, who are the Appellants. Certainly, that is not what the Memoranda of Understanding seeks to convey. It is my view which I hold firmly, that the intention or purpose of the Memoranda of Understanding, only granted to the Appellants the management or conduct of the schools. This is made clearer

by Clause 2.1 to the Memoranda of Understanding which stipulates that:
“This MOU shall take effect from the date of its execution and shall remain in force for a period of Five (5) years in the first instance. The Government shall after the expiration of the five year term, further review the MOU for such period and upon such mutually beneficial terms as the parties may agree to.”

It is therefore clear, in my view, that what was agreed upon by the Ogun State Government and the Appellants was a management contract (firming out), from time to time as the parties may desire to renew or agree to. It is therefore erroneous to construe the Memoranda of Agreement entered into by the parties, as a return of the various schools to them. It is not.

?A summary of what I have endeavoured to articulate on this issue is that, the transaction between the Appellants and the Ogun State Government is not an outright return of the schools to the Appellants. By the Agreement, the Government retained ownership of the schools, while granting the management rights to the Appellants. In other words, the Appellants were granted exemption from the prohibition imposed by

Section 4(1) in conducting the schools. It is therefore my view that the learned trial Judge was right when he found and held that the schools were not returned to the Appellants. This issue is therefore resolved against the Appellants.

On issue two, learned counsel for the Appellant extensively cited the decision of the trial Court on Section 5 of the Law, from pages 286 line 1 – 287 line 11 and 290 lines 1 – 4 of the Record of Appeal. He further reproduced, paragraph 1 of the “VEN” exhibits to contend that, there is no doubt that, the word “may” in Section 5 of the Law gives the Respondents the discretion to exempt any institution from the general ban on the opening or conduct of post-primary institutions, and that such discretion was exercised in favour of the Appellants. That, having exercised that discretion, the Respondents now seek to renege on their decision by arguing that the step they are required to take after they had exercised their discretion was not taken, by them, and therefore the return of the schools was invalid. It was therefore submitted that, the holding of the learned trial Judge that the return of the schools was not valid

because it was not gazetted by the Respondents, should be interfered with by this Court.

Learned Counsel for the Appellants went on to submit that, the learned trial Judge agreed that it was the responsibility of the Respondents and not the Appellants to publish the return of the schools in the Gazette, and also rightly interpreted the opening point of Section 5 of the Law, That, rather than give teeth to the object of Section 5 of the Law, the trial Court interpreted the word “shall” therein as making the return of the schools valid only when it is published in the Gazette and thereby frustrating the policy and object of Section 5 of the Law. It was therefore submitted that Section 5 of the Law should have been construed in such a way as to preserve the product of the discretion already exercised in favour of the Appellants; especially when the Appellants have expended millions of Naira on the schools. The case of Ifezue v. Mbadugha (1984) 1 S.C.N.L.R. p.427 at 475 – 476 was cited to further submit that, there is no doubt that the word ?shall may in certain circumstances mean ?may” and ‘therefore removing the incidence of compulsion.

?It

was also contended by learned counsel for the Appellants that, where a statute requires an act to be done at or within a particular time or in a particular manner, the question that arises is, whether the validity of the act is affected by a failure to comply with what is prescribed. That, though no universal rule can be laid down, provisions relating to the steps to be taken by the parties to legal proceedings have been construed with some regularity, as mandatory, but observed that, the practice has been to construe the provisions as more than directory if they relate to the performance of a public duty and to hold as null and void acts done in neglect of them if they work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty. The case of Welcome Foundation Ltd v. Lodeka Pharmacy Ltd (1971) All N.L.R. p.536, and Halsbury’s Laws of England (4th Ed.) Vol.44 paragraphs 993 were cited in support. See also Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) p.290 at 349.

It was further submitted by learned counsel for the Appellants that, from the authorities cited above, once it cannot be shown

that a sanction awaits the Executive Council or Government as a result of failure to publish the order in the State Gazette, the word “shall” in Section 5 of the Law should be construed as merely directory and not mandatory, since nowhere in the Law is any provision made for the punishment of the Respondents if they fail to publish the order in the Gazette. Furthermore, that the Appellants had no control over the Respondents who refused to do their duty of publishing in the Gazette, and therefore, it would be the height of injustice to the Appellants if Section 5 of the Law is used as a hiding place by the Respondents to circumvent the order of return of the schools made years earlier. Learned Counsel then submitted that, the word “shall” as used in Section 5 of the Law is merely directory, and therefore non-compliance with it does not render the order of return of the schools invalid.

Learned Counsel for the Appellants also cited the case of Brawal Shipping Ltd v. Onwudike (1999) 11 NWLR (Pt. 678) p.387 at 403 – 404 paragraphs G – A, to contend that, the Principle of Legitimate Expectation enures to the benefit of the Appellants. That, though argument on this

point was not considered by the learned trial Judge, this Court should, in the interest of justice, exercise its powers under Section 15 of the Court of Appeal Act, 2004 to rely on the record, consider the point on legitimate expectation, and make pronouncement thereon. The cases of Adeyemi v. Ike Oluwa & Sons Ltd (1993) 3 NWLR (Pt.309) p.27 at 40 ? 41 paragraphs G ? A, 49 paragraphs F ? A and 56 paragraph A; Odedo v. INEC (2008) 17 NWLR (Pt.1117) p.554 at 611 paragraph E ? H and at 636 ? 637 paragraphs H ? D; and Re: Adewumi (1998) 3 NWLR (Pt. 89) p.483 at 501 ? 502 were cited to buttress the point. Several English cases were cited to submit that, a person may have legitimate expectation of being treated in a certain way by an administrative authority even though there is no other legal basis upon which he could claim such treatment. That, having regard to the exchanges between the Appellants and the Respondents as contained in the exhibits before the Court, which led to the execution of the Memoranda of Understanding, it is unassailable that it was within the legitimate expectation of all the parties that the

schools have been returned to the Appellants. That, in such a circumstances, the Executive Council was required to confer a substantive, as opposed to a procedural benefit on the Appellants; and therefore, the Court will not permit the Executive Council (2nd Respondent) to resile from the representation made to the Appellants, and that to do so would amount to abuse of power.

Arguing further on the point of legitimate expectation, learned counsel for the Appellants submitted that, in the circumstances, the Court would have to determine whether there is a sufficient overriding interest to justify a departure from what had previously been promised. That, in the instant case, the Respondents did not proffer any reason in their Counter-Affidavit why they should be allowed to renege from the promises and assertions made in the various Exhibits, and which have been relied upon by the Appellants. In that event, we were urged to hold that, the Court below was wrong in holding that the non-publication of the return of the schools in the Government Gazette by the Respondents cannot invalidate a lawful exercise by the Respondents of their discretion to return the schools

to the Appellants.

Arguing on this issue, learned counsel for the Respondents submitted that, where a statute has provided a mode of carrying out a specific duty, that mode must be followed. The cases of Kayode v. State (2008) 1 NWLR (Pt.1068) p.301 etc were cited in support. That the cases cited and relied on by the learned trial judge in the determination of this issue are distinguishable from the facts of this case, as they all deal with administrative procedures, while the instant case deals with a statutory procedure. That, Section 5 of the Law imposes a mandatory duty on the Executive council which must be complied with, and not merely directory. Learned Counsel then relied on the case of Abiodun v. A.G., Federation (2007) 15 NWLR (Pt.1057) p.359 at 396 paragraphs E ? G, to insist that the word ?shall? when used statute, generally connotes the imperative or mandatory. The case of C.C.C.T.C.S. Ltd v. Ekpo (2008) 6 NWLR (PT.1083) p.3 at 398 paragraphs D – E was further cited to submit that the word “shall” when used in a statute means a command to do or not to do a particular act, and therefore there is no question of exercise of discretion.

?Learned Counsel for the Respondents went on to submit that, the respondents are not estopped from raising the issue of

illegality because, Section 5 of the Law is not just on administrative procedure which can be waived. The case of U.B.N Plc v. Okoro (2002) 10 NWLR (Pt.774) p.1 at 14 ? 15 was cited in support.

Learned counsel for the Respondents also cited Section 5 of the Law to submit that, the learned trial Judge was right in holding that the non-publication of the order of return of schools to the Appellants in the State Gazette rendered the return of the schools invalid and incompetent. That the word in contention is the word “shall” preceding “be published”. That going through Sections 3 and 4 of the Law, the intention of the Law makers is that the running of post-primary schools should be the business of Government in Ogun State, as the issue of Education affects the general public and not just a group of people or particular person, and that where there is to be an exemption, the name of the school exempted shall be published, in the Gazette. The case of Odu’a Investment Co. Ltd v. Talabi (1997) 10 NWLR (pt. 523) was then cited to submit that, in deciding whether a statute is mandatory or directory, if the statute concerns the general public, the provisions

are mandatory while if it concerns a group of people or an individual, the word used would be mandatory.

Relying on the dictum of Lord Campbell, L.C. in Liverpool Borough Bank v. Turner 29 L.J.(Ch.) 827, and the case of Ifezue v. Mbadugha (1984) 1 SCNR p.427, learned counsel for the Respondent submitted that the Law is that, if the object of a statute is not one of general policy, or if the thing which is being done will benefit only a particular person or class of persons, then the provisions of the statute are directory and not mandatory. The case of Menakaya v. Menakaya (2001) 16 NWLR (pt.738) p.203 was further cited to submit that since the handing over of the schools to the Appellants affects the general public, the use of the word “shall” is mandatory. We were accordingly urged to resolve this issue against the Appellants and to dismiss the appeal.

?On points of law, learned senior counsel for the Appellants contended that, there is no doubt that the Respondents and the Appellants entered into a Memoranda of Understanding, which on the face of it contains no illegality, as the Respondents firmed out the management of the schools to the

Appellants. We were urged to hold that the agreement, which are the Memoranda of Understanding are not rendered illegal on account of the provisions of Section 5 of the Law which does not require that the contract Exhibit ?VEN 36″, has to be published in the State Gazette. That, it is not open to the Respondents to rely on their own wrongful act of not publishing the exemption in the Gazette to deprive the Appellants of rights which, of their own free will, the Respondents have donated to them vide the Memoranda of Understanding. The cases of Solanke v. Obed (1962) N.S.C.C. p.160 at 162 – 163 and West Construction Co. Ltd v. Batacha (2006) 9 NWLR (Pt. 986) p.595 at 625 were cited to submit that, having approved the return of those schools, it is not open to the Government to now argue that there is no more approval because, a step which they had to take without any input from the Appellants.

?It was further contended by learned counsel for the Appellants that, contrary to the contention of the Respondents, the Appellants did not commit any illegality, and that if any illegality had been committed, it should be placed at the doorsteps of the

Respondents. Furthermore, that Section 5 of the Law contains no penalty for its breach nor does it say that non-publication of any exemption in the State Gazette shall render such exemption null, void or illegal. On that score, we were called upon to allow the appeal and grant all the reliefs sought by the Appellants on the originating summons.

Now, the issue under consideration calls for the construction or interpretation of Section 5 of the Education (Post-Primary Institutions) (Special Provisions) Law (supra). It lies within the bosom of Courts established by the Constitution to construe the Laws validly made by the Legislature in order to see what the intention of the Lawmakers is. The object of interpreting any statute is therefore to ascertain the intention of the legislature that had made it. In doing that the Courts have crafted out tools or instruments to guide the Courts in the discharge of that onerous duty. Thus, Lord Tindal, C. J. in the case of Sussex Peerage’s Case (1844) C.L Firm. 85 at 143 said:
“The rule of construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the

Act. If the words of the statute are in themselves precise and unambiguous then no more can be necessary than to expound those words in the natural and ordinary sense. The words themselves alone, do in such a case, best declare the intention of the law giver. But if any doubt arises from the terms employed by the legislature, it has always been held a safe means of collecting the intention to call in aid the ground and cause of making the statute and to have recourse to the preamble which… is a key to open the minds of the makers of the Act, and the mischief they intend to redress.”
The principle of statutory interpretation has become dominant in all common law countries and are still being applied today. This country is no exception. This has for a long while been the position of the Supreme Court of Nigeria as can be read in many cases, as Uwaifo v. Attorney-General (1982) 7 S.C. P.124 at 185, where Idigbe, J.S.C. said:-
“In order to determine the meaning of the many expressions or phrase, in an enactment the first question to ask always is “what is the natural or ordinary meaning of the words used therein the con in the statute”, and it is

only when the ordinary meaning of those words lead to some result which cannot reasonably be supposed to have been the intention of legislature that it becomes proper to look for some other possible meaning of the words concerned.”
In the interpretation of statutes therefore, it is to be presumed that the law maker does not intend to perpetrate injustice; thus, in interpreting statutory provisions, the Court must ensure that justice is done and not sacrificed on the altar of technicality. See Abubakar v. Nasamu (No.2) (2012) 17 NWLR (pt.1330) p.523 at 578; Buhari v. Yusuf (2003) 14 NWLR (pt. 841), p.446 and Okoli v. Udeh (2008) 10 NWLR (Pt.1095) p.213.
In the instant case, what agitates our minds is the construction to give to the phrase “which shall be published” in the State Gazette, as used in Section 5 of the Law. For ease of reference, the provision is reproduced below:
“5. The Executive council may by order which shall be published in the State Gazette direct that the provisions of this Law shall not apply in relation to a particular post-primary institution.”
?While the Appellants argued that, generally the word “shall” when used in a

statute connotes compulsion or mandatoriness, it may also mean a permissive connotation, the Respondents insist that the word “shall” as used in Section 5 of the Law connotes a command, and therefore since the return of the schools was not Gazetted, it is illegal and void. In determining the issue, the learned trial Judge held at page 286 of the Record of Appeal that:
?Section 5 of the Law says the Executive Council may by order which shall be published in the State Gazette. To my mind that order may take any form, could even be by letter but it must be published in the State Gazette. To my mind an order was made by virtue of the letters of 15th October, 2010 but the second stage of publication is the issue in contest. The word “shall” in Section 5 of the Law is mandatory not permissive.
There is a time-tested, time honoured and time-proven principle of construction of statutes that draws a dichotomy between the words “shall? and “may” as constituting a mandate, obligation or command and permissiveness or discretion respectively. This is per Niki Tobi, JSC in Odedo v. INEC (2008) 17 NWLR (Pt.1117) 554 at 610 paragraphs F ? G. See also

Ararume v. INEC (2007) 9 NWLR (Pt.1038) 127 at 160. Since the Order was not shown to have been published in any Gazette of the State, Section 5 of the Law under reference was not complied with.”
In the construction of statutes generally, when the word used is “shall”, it imports that a thing must be done. It is almost always construed to import a form of command or mandate which is given a compulsory meaning or denoting an obligation. See Nwankwo v. Yar’adua (2010) 12 NWLR (Pt.1209) p.518; Umeanadu v. A.G. Anambra State (2008) 9 NWLR (pt.1091) p.175 and Bamaiyi v. AG., Federation (2001) 12 NWLR (pt.727) p.468 at 480. In other words, in its ordinary meaning, the word “shall” is a word of command which is usually given an obligatory meaning and denoting compulsion. It therefore does not give room for discretion and therefore peremptory. The word may however be used as implying futurity; or giving a directive or permission. In other words, the word ?shall” is sometimes used to imply or intended for directing the doing of a thing only; in which case, it may be construed as “may” which is merely permissive. See Evong v. Messrs Obono-Obono & Asso.

(2012) 6 NWLR (pt.1296) p.338 and Okorocha v. U.B.A. Plc (2011) 1 NWLR (pt.1228) p.348. Generally, however, whether the word ?shall? is to be construed in a mandatory or directory sense would depend on the circumstances of the case. Thus, in the case of Amokeodo v. I.G.P. (1999) 6 NWLR (Pt. 607) p.467 at 481 paragraphs B ? C, it was held that:
“No universal rule can be laid down for determining whether provisions of a statute are mandatory or directory; in each case, the intention of the legislature must be ascertained by looking at the whole scope of the statute and in particular at the importance of the provisions in question in relation to the general object to be secured.”
It therefore means that, the meaning to be attached to the word “shall” used in a Statute, would depend on the consequences of disobedience to the command as provided by the Statute. Accordingly, if the provision of the Law requires that certain formalities be performed as condition precedent for the validity of the transaction without imposing any penalty for non-compliance, the condition therein would be treated as directory only,. See A. T. Ltd v. A.D.H. Ltd

(2007) 15 NWLR (Pt.1056) p.118 at 150-151 paragraphs H – G; Adeosun v. Gov., Ekiti State (2012) 4 NWLR (pt.1291) p.581 and INEC v. Iniama (2008) 8 NWLR (Pt.1088) p.182 at 199 paragraphs E – F. In determining the issue therefore, the Court is enjoined to try to get at the real intention of the Legislature by carefully attending to the whole scope of the Statute under construction.
I have carefully read the provisions of the Law under construction. Incidentally, it runs into only six (6) Sections, so I find no difficulty in reading through. Upon a careful reading, I find nowhere that failure of the Executive Council to publish any act done under Section 5 of the Law is sanctioned. In other words, the failure of the Executive Council to publish ?the return” of the schools in the Ogun State Gazette has not been sanctioned. No penalty has been prescribed under the Law for noncompliance. The law is that, where a penalty for non-compliance or disobedience has been imposed, the transaction will be illegal and void, but where none is prescribed, the duty to be performed will be treated as merely directory; and failure will not nullify or void the transaction.

See Pan Bisbilder Ltd v. F.B.N (2000) FWLR (pt.2) p.177 and C.B.N. v. Eluma (2001) FWLR (Pt.40) p.1615. That being so, I am of the view that, the stipulation in Section 5 of the Law that the order or discretion exercised by the Executive Council “shall be published in the State Gazette” is merely directory and not obligatory or mandatory. Accordingly, the failure or inability of the Executive Council to publish the Agreement entered into by it and the Appellants, wherein exemption, in terms of conduct of private post-primary institutions was granted the Appellants, is neither: illegal nor void. The Agreement as evidenced by the Memoranda of Understanding was a valid act done by the Ogun State Executive Council under Section 5 of the Law.

Before I conclude, I find it necessary to state that statutes are made for the peace, order and good governance of a society. They are made also for the advancement and development of society; both economic, social and political. Courts of Law charged with the duty of construing those documents must be purposeful and therefore construe such Laws in order to meet the circumstances, issues, conditions or situations which

propelled the Legislature to enact them, See Nigerian Army v. Aminun Kano (2010) 5 NWLR (pt.1188) p.429. In that respect, a Court of law will, in order to avoid injustice, not give construction to a statute that would enable a person, by his own action or inaction to avoid an obligation which he has undertaken and perhaps profited from it.

?In the instant case the parties, with their eyes open, voluntarily signed the Memoranda of Understanding, which granted the Appellants the right to conduct or manage the schools they had founded, but which was expropriated from them under Military fiat. With passage of time, the Government under a democratic setting, saw the need to accede management of those institutions to the Appellants, and same was duly communicated to the Appellants vide Exhibit ?VEN 1 – 17″ respectively. The Appellants relying on such letters, coupled with the Memoranda of Understanding duly entered into between them and the Government expended huge sums of their own money to develop those schools. That is where the legitimate expectations principle strenuously put forward by the Appellants becomes relevant and apt. Certainly, having been

communicated that the schools hitherto taken over from them had been returned, and having consequently signed the Memoranda of Understanding, the Appellants would legitimately expect that, the Government being democratically elected and thus guided by the Constitution, would keep faith with the Agreement.

I note however, that the act which led to the dispute between the Appellants and the Respondents was precipitated by the act of the 4th Respondent (Ogun State House of Assembly). Incidentally the act of the 4th Respondent in purporting to reverse the act of the Ogun State Executive Council (2nd Respondent) has been nullified by the trial Court and there is no appeal against it. It therefore remains established that the 4th Respondent has no power or vires to reverse the exercise of the power granted the 2nd Respondent by Section 5 of the Law. I have also carefully read the processes filed by the Respondents in this case, particularly the Counter-Affidavit filed by them, and nowhere has it been alleged or deposed that the Executive Council of Ogun State has exercise its powers under the Memorandum of Understanding to terminate the Agreement to firm out

the conduct or management of the post-primary institutions in question to the Appellants. Those Agreements (Memoranda of Understanding) therefore remain valid, subsisting and binding on the parties.

On the whole therefore, it is my finding, which I hold in respect of relief 1 sought by the Originating Summons that the post-primary schools were not by the Agreement entered between the Appellants and the Ogun State Government, released from the application of the provisions of the Education (Post-Primary Institutions) (Special provisions) Law, Cap.36, Laws of Ogun State. Secondly, since it has been established that the Agreements (Memoranda Of Understanding) signed by the parties is still valid, subsisting and binding; AN INJUNCTION is granted, restraining the Respondents by themselves, their servants and/or agents from reversing or revoking the said Agreement, save in accordance with the terms of the Memoranda of Understanding.

?It would be seen therefore that this appeal succeeds in part. It is accordingly allowed in part as set out above.

OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the benefit of a preview of the

judgment of my learned brother Haruna Simon Tsammani JCA. I agree with both the reasoning and conclusions reached in the judgment. By way of contribution, I wish to add a few words of my own.

The essence of an agreement is that the parties to it should be bound by it – pacta sunt servanda (agreements must be kept). The memorandum of understanding entered into by the parties thereto is very clear. The Memorandum of Understanding has been reproduced in the lead judgment. Of particular importance in my view, are Clauses D and E of the Memorandum of understanding. Those paragraphs evince the intentions and the obligations of the parties. The said paragraphs for ease of reference are reproduced below:-
D. The Government is therefore desirous of firming out some of these schools to Professional Administrators and religious missions to manage in order to ensure greater efficiency, financial prudence and a significant reduction of Government?s capital outlay in the education sector.
E. The Manager being the former owner of the school and a reputable Religious Mission with a sound pedigree in education management and service delivery, has agreed

to manage the schools for and on behalf of the Government and to provide additional funding and infrastructure for the school (underlining supplied by me).

The above clauses say it all. It is a cardinal rule of construction of written instruments that the words of a written instrument must in general be taken in their ordinary sense unless where to do so would lead to some absurdity or some repugnancy or inconsistency with the rest of the instrument. See Ogbunyiya & Ors vs. Okudo & Ors (1979) 6 ? 9 SC 24. The above words in the Memorandum of Understanding are ordinary and plain enough. Let me note as an aside here that the expression “firming out” used in the Memorandum of Understanding is inappropriate. The correct expression is “farming out? Accordingly to Merriam – Webster Dictionary, “Farm out” means ?to turn over (as a job) for performance by another usually under contract”. According to Chambers Concise Dictionary the words “farm something out? means “to give (work) to others to do?. Thus what the government party to the Memorandum of Understanding did was to give out to the appellants the ?job” or “work” of managing the schools. That there was no return of ownership of the

schools is glaring from Clause E, the first line of which describes “the Manager? as the “former owner?. The Memorandum of Understanding is in a nutshell, a management agreement simpliciter. It has nothing to do with the return of the schools to the former owners.

As for the use of the word “shall? in Section 5 of the Education (Post-Primary Institutions) (Special Provisions) Law, it is important to state that it is not the case that in all cases the word ?shall? represents a command when used in an enactment. In the case of Amadi v. NNPC (2000) 10 NWLR PART 675 P.76, to Supreme Court per Uwais CJN stated thus:
“It is settled that the word ?shall? when used in an enactment is capable of bearing many meanings. It may be implying futurity or implying a mandate or direction or giving permission.?
In this case the word “shall? used in Section 5 of the law under reference merely gives permission or direction. It is not a word of command. The Section states:
?5 The Executive Council may by order which shall be published in the state Gazette direct that the provisions of this law shall not apply

in relation to a particular Post-primary Institution.?

For the reasons given above, and the fuller reasons given in the lead judgment, I agree that the appeal succeeds in part.

?NONYEREM OKORONKWO, J.C.A.: I have had the privilege of reading in advance the draft of the lead judgment just delivered by my brother Haruna Simon Tsammani, JCA as his Lordship endeavoured to review this appeal and in particular in the construction of the Education Law Cap 36 of Ogun State.

My understanding of the scenario painted by his Lordship in his elucidation is that in the absence of a clear repeal of the Education Law Cap 36, what is superimposed upon the Education regime is the Agreement between the appellants and the respondents by virtue of which the affected post-primary institutions were released to be managed by their former proprietors and that Agreement is in subsistence in accordance with its terms

Injunction is therefore appropriate to prevent respondents from reneging on the agreement or reversing its operation.

I agree with the lead judgment on this point and the conclusion reached.

Appearances

Mrs. Doyin Rhodes-Vivour with A. Onwaeze, Esq. and Rilwan Ali, Esq.For Appellant

AND

Mrs. Abimbola Akinsanya (A.C.S.C; Ogun State Ministry of Justice)For Respondent