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NABEGU CO. (NIG) LTD v. AMCON & ORS (2022)

NABEGU CO. (NIG) LTD v. AMCON & ORS

(2022)LCN/17171(CA) 

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Monday, April 04, 2022

CA/KN/176/2020

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

NABEGU COMPANY NIGERIA LIMITED APPELANT(S)

And

1. ASSET MANAGEMENT CORPORATION OF NIGERIA (AMCON) 2. RESTRUCTURING & RESOLUTION COMP. LTD. 3. NASIR ABDU DANGIRI (SAN) (RECEIVER) 4. KANO STATE BUREU FOR LAND MANAGEMENT 5. CORPORATE AFFAIRS COMMISSION (CAC) 6. PEPETRICHOR INDUSTRIES LTD. RESPONDENT(S)

 

RATIO

THE POSITION OF LAW WHERE THE EXPRESSION “SUBJECT TO” IS USED 

In Leadership Newspapers Group Ltd v. Mantu (2017) 2 NWLR (Pt. 1548) P9. 15, the Court of Appeal held that whenever the expression “subject to” is used, it is an expression of limitation. It implies that what the section or subsection is “subject to” shall govern, control and prevail over what follows in the section or subsection of the enactment. Where there is no clash, the phrase does nothing. If there is collision, the phrase shows what is to prevail. It imposes a restriction or limitation which governs the other provisions in the said section. If assigns a subordinate position to a clause or section of an enactment or provides qualification. It confers a right of priority in favour of the legislation to which the other is subject.
The Court further held that where the phrase “subject to” occurs in a statute, effect must be given to it because every word in a statute must be constructed and given effect to since the Court lean against presumption of surplusage or tautology in construction of statute except where that is manifestly the case. Words used in on agreement or contract or in a statute are not used without a meaning and so effect must be given if possible, to all the words used for the drafter is deemed not to waste its words or say any is void.
In Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) Pg. 139, Kalgo JSC (as he then was) held that it is a general principle of the law of contract that where a contract is made subject to fulfilment of certain specified terms and conditions, the contract is not formed or becomes binding unless and until those terms and conditions are complied with or fulfilled…’ PER MBABA, J.C.A.

WHETHER OR NOT ISSUES FOR DETERMINATION OF APPEAL MUST FLOW FROM THE GROUNDS OF THE APPEAL

Such arrangement of arguments has offended all known practice and procedure of arguing appeals in this Court. We have stated several times, that in this Court, appeals are argued on issues, properly distilled from or formulated on the grounds of appeal, which must flow from and predicate on the judgment appealed against, touching on the ratio decidendi of the said judgment. See the recent case of Sadiq & Ors Vs Yunusa (2022) LPELR – 56568 (CA), wherein we held:
“It is true that an issue for determination of appeal must flow from and/or derive from the grounds of the appeal, which must, in turn, be founded and predicated on the judgment appealed against, touching on the ratio decidendi of the said judgment. See the cases of Anyatonwu & 3 Ors Vs. Ezedu & 3 Ors (2018) LPELR 43809 CA, Nwaigwe & Anor Vs. Amaechi Esq & Ors (2017) LPELR – 43080 CA, Francis Vs Asugha (2020) LPELR – 50616 (CA). In the case of Eze Vs. the State (2017) LPELR – 42006 (CA), it was held: It has been stated severally that appeals (the grounds thereof and issues there form) must be founded on the judgment of the Court, appealed against, touching on the ratio decidendi or live issue(s) in the judgment. See the case of Ossai Vs FRN (2013) 13 WRN 87, Agboroh Vs WAEC (2016) LPELR – 40974 (CA); Shettima Vs Goni (2012) 18 NWLR (pt.1279) 413, Nnolim Vs Nnolim (2017) LPELR – 41642 (CA). In the case of Nze Vs Aribe (2016) LPELR – 40617 (CA), this Court held: “This point seems to have enjoyed some notoriety in the law governing appellate proceedings, that the grounds of appeal and/or issues for determination of appeal, must relate to and flow or derive from the judgment appealed against, touching on the ratio decidendi or live issue(s) in the judgment. See Anozia Vs Nnani (2015) LPELR – 24277 CA (2015) 8 NWLR (pt.1461) 241, Obosi Vs NIPOST (2013) LPELR – 21397, UNILORIN Vs Olawepo (2012) 52 WRN 42; Alataha Vs Asin (1999) 5 NWLR (pt.601) 32, Punch Nig. Ltd Vs Jumsum Nig. Ltd (2011) 12 NWLR (pt.1260)162.PER MBABA, J.C.A.

WHETHER OR NOT ONE CAN SPLIT A GROUND OF APPEAL TO GENERATE DIFFERENT ISSUES FOR THE DETERMINATION OF APPEAL

The law is trite that one cannot split a ground of appeal to generate different issues for the determination of appeal. It is also the law that, once a given ground of appeal has been used, to distil an issue for determination of appeal, that ground ceases to be available to be used, either alone, or in conjunction with another ground(s) of appeal to generate another issue for the determination of the Appeal.” See Marcathy Vs Tope (2012) All FWLR (Pt. 648) 833, Nwaigwe Vs Okere (2008) All FWLR (Pt. 413) 843, Oseni Vs Bajulu (supra); Blessing Vs FRN (2013) 12 WRN 36. See also Aduba & Ors Vs Aduba (2018) LPELR-45756 CA, Egbebu Vs IGP & Ors (2016) LPELR-40224(CA) and Okuwa & Anor Vs Ngere & Anor (2020) LPELR- 49716 CA, where we also held: “Having used the said ground one to formulate the issue one for the determination of the appeal, the said ground one of the appeal ceased to be available to donate another issue for determination of Appeal… See also Nigerian Agricultural Co-op. Bank Ltd Vs Lewechi Ozoemelam (2016) LPELR-26051 (SC).”
See also Bayero University, Kano Vs Muhammad (2022) LPELR – 56733 CA, Dakwak Vs Jos South LG Council (2021) LPELR – 55143 (CA) and Giwa Vs Ajayi & Ors (1992) LPELR – 14922 (CA), where it was held:
“Issues for determination must be formulated in such a way as to relate to specific grounds of appeal. Issues which do not relate to a ground of appeal are incompetent.  PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against the decision of the Federal High Court, Kano, in FHC/KN/CS/51/2019, delivered on 1/6/2020 by Hon. Justice O. A. Egwuata, wherein he dismissed the plaintiff’s case against the Defendants.

The Appellant was the plaintiff at the lower Court, and the case at the lower Court (against the Defendants) was by originating summons, whereof the following questions were posed for determination:
(1) Whether the Deed of Mortgage Debenture dated 07/07/99 and registered with the 4th Defendant as No. 192 at page 192 in Volume 13 (Mortgages) over the plaintiff’s assets, covered by Certificate of Occupancy No. LKN/IND/RC/82/49, between the plaintiff and the 1st Defendant, has not been extinguished, the 1st Defendant having restructured the loan given to the plaintiff and taken shares in the plaintiffs’ company, in the name of the 2nd Defendant in place of the total indebtedness of the plaintiff.
(2) Whether, in the circumstances of this case, the Deed of Mortgage Debenture dated 07/07/99 and registered with the 4th Defendant as No. 192 at page 192 in Volume 13 (Mortgages) over the plaintiff’s property, covered by Certificate of Occupancy No. LKN/IND/RC/82/49, between Plaintiff and 1st Defendant, is of any legal effect to warrant the 1st Defendant to appoint the 3rd Defendant as receiver over the assets of the plaintiff.
(3) Whether, in the circumstances of this case, the Plaintiff is entitled to the return of its Certificate of Occupancy No. LKN/IND/RC/82/49, from 1st Defendant as well as an order setting aside the Deed of Mortgage Debenture and Deed of Appointment of the 3rd Defendant, registered and filed with the 4th and 5th Defendants, respectively.”

Appellant had sought the following reliefs from the trial Court:
(1) A Declaration that the Deed of Mortgage Debenture dated 07/07/99 and registered with the 4th Defendant as No. 192 at page 192 in Volume 13 (Mortgages), over the Plaintiffs property, covered by Certificate of Occupancy No. LKN/IND/RC/82/49 has been extinguished by the taking of shares in the Plaintiff’s company in settlement of the debt.
(2) An order discharging the Plaintiff from the Deed of Mortgage Debenture dated 07/07/99 and registered with the 4th Defendant as No 192 at page 192 in Volume 13 (Mortgages) over the Plaintiff’s property, covered by Certificate of Occupancy No LKN/IND/RC182149, the loan, the subject of the mortgage agreement, having been converted into shares in the Plaintiff’s Company.
(3) A Declaration that the Deed of Appointment of Nassir Abdu Dangiri SAN, dated 30th November, 2017 as Receiver over the assets of the Plaintiff by the 1st Defendant, under and by virtue of the powers contained in the Deed of Legal Mortgage Debenture, is illegal and of no legal effect, the loan, the subject of the mortgage agreement, having been converted into shares in the Plaintiff’s Company.
(4) An order setting aside the notice of appointment of the 3rd Defendant as Receiver/Manager, filed with the 5th Defendant on the 15th December, 2017.
(5) An order of this Honourable Court vacating/annulling its order dated 30th January, 2018, in suit no FHC/KN/CS/06/2018, between the 1st Defendant and the Plaintiff, for want of jurisdiction, the loan, the subject of the mortgage agreement, having been converted into shares in the Plaintiff’s Company, and thus the mortgage agreement extinguished.
(6) An order directing the 1st Defendant to return, forthwith, to the Plaintiff, the Certificate of Occupancy No LKN/IND/RC/82/49 given as collateral, the loan, the subject of the mortgage agreement, having been converted into shares in the Plaintiff’s Company.
(7) An order mandating the 1st Defendant to retract the publication in the Leadership Newspaper, dated 04/05/18, with a written apology to be published in a national daily.
(8) An order for damages in the sum of N200,000,000 00 (Two Hundred Million Naira Only) against the 1st Defendant.
(9) And for such further order(s) as this Honourable Court may deem fit to make in the circumstances of this suit. (Page 40 of the appellant’s Brief)
(See pages 1482 – 1490 (Volume 2) of the Records of Appeal.

The Respondents had filed processes to defend the suit, and their Counsel had said that Appellant, who had the burden of proving how the loan from Bank of Industry was/is obtained, failed and/or neglected to show any evidence of that, at the trial.

After hearing the case and considering the evidence and addresses of Counsel, the learned trial Judge dismissed the suit and said as follows, by way of summary of the case of Plaintiff, before it:
“The case of the Plaintiff is that it took a loan facility from Unity Bank Plc and executed a mortgage agreement (a deed of debenture, dated 07/07/99) over its assets and property covered by a certificate of occupancy no. LKN/IND/RC/82/49, registered with the 4th and 5th defendants as No. 192 at page 192 in Volume 13. Unity Bank Plc instituted all action against the Plaintiff before the Kano State High Court and obtained a judgment against the Plaintiff in the sum of N135,656,017.90 which judgment was appealed against by the plaintiff to the Court of Appeal. While the appeal was pending, Unity Bank Plc by a letter dated 11th July, 2011 (Exhibit NCN 1), served on the Plaintiff a notice of assignment of its interest and proceeds arising from the loan/mortgage agreement to the 1st Defendant.
The Court of Appeal affirmed the decision of the Kano State High Court, prompting the plaintiff to file an appeal before the Supreme Court. While the appeal was pending at the Supreme Court, the parties entered into settlement and the loan assigned to the 1st Defendant was converted into shares in the Plaintiffs company in the name of the 2nd defendant, a subsidiary of the 1st defendant. The parties willingly executed the terms of settlement, incorporating the agreement reached between the parties which was duly filed with the Kano State High Court in suit no. K/M514/2013 and entered as the judgment of the Court in exhibits NCN 5 and 6.
It is the further case of the Plaintiff that consequent upon the settlement reached, the plaintiff altered its shares and allotted 4,600,000 units of shares to the 2nd Defendant as agreed between the plaintiff and the 1st defendant and same was duly filed with the 5th defendant (vide Exhibit NCN 9) and communicated to the 1st defendant vide Exhibit NCN 7. The letter was duly acknowledged by the 1st defendant vide exhibit NCN 8.
Consequent upon the terms of settlement, the plaintiff altered its various positions and acted upon the terms of settlement-the plaintiff withdrew its motion dated 11th of February, 2014 in Suit No. K/M541/2013 before the Kano State High Court and its appeal before the Supreme Court in appeal No. SC/521/2013 (Exhibits NCN 10 & 11).
To the dismay of the plaintiff, the 3rd defendant by a letter dated 2nd February, 2018 (Exhibit NCN 12), wrote the plaintiff intimating it of his appointment as Receiver, over the assets of the Plaintiff, attaching copies of evidence of registration with the 5th Defendant, Deed of Appointment, dated 30th of November, 2017 as well as the Court’s order dated 30th of January 2018 in Suit No. FHC/KN/CS/06/2018, authorizing him to take over the affairs of the plaintiff (Exhibits NCN 13, 14 & 15).
It is the contention of the Plaintiff that the loan agreement, having been restructured into shares in the plaintiff’s company, same agreement has extinguished the mortgage agreement between the 1st defendant and the plaintiff and as such the 1st defendant cannot lay claim to the loan that has been extinguished but to deal with the shares in accordance with the memorandum and articles of association of the plaintiff or laws regulating shares and not otherwise.
It is also the contention of the plaintiff that the 1st defendant having entered into agreement, adopted as consent judgment and made the plaintiff to alter its various positions, is estopped from reneging from same and that the plaintiff is entitled to the return of its certificate of occupancy.
It is the case of the Plaintiff that the 3rd defendant as receiver, armed with Exhibit NCN 15, invaded the property of the Plaintiff, with armed Policemen in the name of taking over the property covered by Certificate of Occupancy No. LKN/IND/RC/82/49, which property is still seized and manned by’ security men appointed by the 3rd Defendant, till date.
It is also the case of the plaintiff that the advertisement of the order of this Court, made on the 30th day of January, 2018 in the daily (Exhibit NCN 17) embarrassed the plaintiff and caused the plaintiff unrest, panic and (sic) (made the) public to view the plaintiff in disdain and as a result has suffered financial loss.
The plaintiff as a result instituted this suit and sought the determination of the questions and the grant of the reliefs set out earlier in this ruling.” (See Pages 3525 to 3529 of the Records)

The trial Court further said, as per the cases of the Respondents, as follows, on Pages 3529 to 3536 of the Records:
“In opposing the Application, the 1st, 2nd and 6th Defendants filed a counter – affidavit of 6 paragraphs deposed to by one Suleiman Dangiri, a litigation secretary in the firm of Nasir Abdu Dangiri, SAN & Co. Attached to the counter-affidavit are five (5) exhibits marked AMCON 1-5, respectively. A written address was also filed in compliance with the Rules of Court.
The 1st, 2nd and 6th Defendants (Defendants) admitted the facts deposed in paragraphs 4-18 of the plaintiff’s affidavit in support.
It is the case of the Defendants that Exhibit AMCON 1 contains the terms and conditions of the loan agreement, including the amounts obtained by the plaintiff as loan(s), security provided for the loan, the interest rate, when the loan becomes payable (event of default) and appointment of Receiver/Manager amongst other clauses. It is the case of the defendants that the plaintiff is under Receivership, which appointment of the Receiver has not been set aside by any competent Court. With the appointment of the receiver, the power of the Plaintiff and her Directors in respect of the asset under receivership contained in exhibit AMCON 1, is paralyzed until the Receiver is discharged and that up till now the Receiver has not been discharged.
It is also the case of the Defendants that leave of this Court was not sought and obtained before this suit was filed against the Receiver/Manager and the 1st Defendant. That in the Defendant’s reply to the plaintiff’s letter, the 1st Defendant informed the Plaintiff through Exhibit AMCON 2 that the Restructuring Agreement has been made SUBJECT TO CONTRACT or subject to the Plaintiff obtaining a loan from the Bank of Industry or any other financial institution, and up till now the Plaintiff has not obtained the loan. That the Plaintiff having admitted its debts affirmed by the Court of Appeal, it behaves the plaintiff to show how he repaid the debt. That the parties entered into terms of settlement of debt as shown in Exhibit NCN 2 and 5, but that the Plaintiff is in default of several clauses of Exhibit NCN 2, which necessitated the defendants to activate the default clause of the terms of settlement, which allowed AMCON to exit the debt at any point.
It is the further case of the defendants, that up till now the plaintiff has not taken any step to remedy the breach of the Terms and Conditions contained in Exhibit NCN 2. It is the case of the Defendants that it was after the 1st Defendant exercised her right, by exiting the debt, that she appointed the 3rd Defendant as the Receiver/Manager pursuant to exhibit AMCON 1. In recognition of the exercise of this right, the plaintiff then wrote a letter (Exhibit AMCON 3) offering to pay the sum of N150 Million as lull and final payment in settlement of the outstanding debt. It is the contention of the defendants that the filing of this suit is an afterthought, as the Plaintiff cannot approbate and reprobate at the sometime. That the position of the Plaintiff, as deposed in paragraphs 13-24, 26-27, 31-40 of her affidavit, can only be valid and true, if and only if the Plaintiff complied with the terms and conditions of Exhibit NCN 2
It is the further case of the defendants that the 1st Defendant was willing and ready to guarantee the loan to be obtained by the plaintiff from Bank of Industry Ltd or, any other financial institution as agreed in clause 4 of Exhibit NCN 2, but up till the time of appointment of the Receiver/Manager, selling of the mortgaged property and the filing of this suit by the plaintiff, that has not been done.

It is the position of the defendants that the sale of the plaintiff’s mortgaged assets on 1st of June, 2018 (when no suit was pending against such sale) to the 6th Defendant, was pursuant to the order of this Court in suit no. FHC/KN/06/2018 which order, up till now has not been appealed by the plaintiff. That as at the time the plaintiff instituted this action, the mortgaged property has long been sold to the 6th Defendant and that this action is not meant for the plaintiff to exercise her right of redemption but meant to further delay meeting her obligation.
The 3rd Defendant on his part filed a 7 paragraphs Counter-Affidavit on the 18th of December, 2019 deposed (to by) one Munir Dangiri, a litigation secretary in the firm of Abdullahi Musa Karaye & Co., counsel to the 3rd Defendant. The position of the 3rd Defendant is the same with that of the 1st, 2nd and 6th Defendants, only that the 3rd defendant specifically added that, even after selling the mortgaged property to the 6th defendant for, N400 Million, the sum of over N50 Million is still outstanding from the plaintiff which has not been paid by the plaintiff before the plaintiff commenced this action against the defendants. I need not therefore reproduce same here.
The Plaintiff filed a 6 paragraph Further and Better Affidavit in reply to the 1st, 2nd and 6th Defendants’ Counter-Affidavit and the 3rd Defendant’s counter-affidavit respectively on the 22nd of January, 2020. Both processes are similar.
It is the position of the plaintiff that all the new issues introduced by the 1st, 2nd and 3rd Defendants in their counter-affidavits/written addresses to the amended originating summons of the plaintiff and filed on the 18th of December, 2019, without leave of this Court to amend, goes to no issue and of no effect, that the 1st, 2nd and 3rd Defendants ought ordinarily to file a consequential amendment pursuant to the amendment by the plaintiff and nothing more.
It is the further position of the plaintiff that the illegal appointment of the 3rd Defendant does not affect the powers of then plaintiff’s directors as there was no mortgage in existence at the time of the purported appointment of the 3rd defendant as Receiver/Manager of the Plaintiff, the mortgage having been extinguished/settled by virtue of the 2nd Defendant taking up shares on behalf of the 1st Defendant in the plaintiff’s company and that the terms of Exhibit NCN 2 formed the hoses (sic) of the terms of settlement that was entered as a consent judgment.
It is the reply of the plaintiff that the plaintiff has fully liquidated the concessionary outstanding debt of N321, 742, 302.58 by the conversion of the said sum into ordinary shares which translated to 4,600,000 shares (i.e 23% of the Plaintiff’s shares) in accordance with the terms of settlement. The Plaintiff denied being in breach of any clause in Exhibit NCN 2 and that the quest for obtaining working capital from Bank of Industry or any financial institution to enable the plaintiff resume production is a joint responsibility of the plaintiff and the 2nd Defendant (the 1 Defendant by implication) being a shareholder and that the 1st and 2nd Defendant cannot be heard to complain. The plaintiff denied that the sale of the plaintiff’s property was effected on the 16th of June, 2018, but was sold during the pendency of this suit as evidenced by the correspondence between the parties between 26th July and 6th September, 2019 (Exhibits FBA 5, 6, 7, 8 and 9) and also the 1st and 2nd Defendants by exhibit FBA 4 filed in suit No. FHC/C5/KN/105/2018, never raised the issue of sale of the property, but rather counter-claimed the sum of N321,642,308.56 and wondered however a counter-claim would have been claimed when the property was already sold.
The 4th Defendant on its part filed a Notice of Preliminary objection dated 21st but filed on the 29th of January, 2020 praying for an order striking out the name of the 4th Defendant on the grounds that there is no cause of action disclosed against the 4th Defendant in this suit.
In compliance with the Rules of Court, the 4th Defendant filed a written address wherein a sole issue for determination was formulated to wit:
“Whether there is cause of action disclosed against the 4th Defendant by the plaintiff in this suit?”
Counsel answered the above question in the negative submitting that the jurisdiction of a Court can only be invoked where there is a cause of action against a party before it. It is the case of the 4th Defendant that the 4th Defendant is not a party to the terms of settlement executed between the plaintiff and some of the defendants and there is no relief sought against the 4th Defendant to warrant its retention in this suit. That the plaintiff must show to the Court the wrongful act of the defendant which gives the plaintiff cause of action against the 4th Defendant and the consequential damage suffered. That these facts are not present in this case and therefore it will be unfair and unjust to drag and subject the 4th Defendant to unnecessary litigation merely because it is a nearest party to the suit.”

Resolving the case, the trial Court said as follows, on pages 3560 to 3567 of the Records of Appeal, said:
“By Exhibit ‘RM 1’, the Plaintiff assigned all the fixed and floating assets and things specifically described in the schedule to the deed to the bank (by implication, the 1st Defendant) by way of security for the payment of the principal sum borrowed which by exhibit NCN 2 stood at N221,827,503.75.
The plaintiff and the 1st Defendant executed Exhibit NCN 2 which was made the judgment of Court vide Exhibits NCN 5 and NCN 6.
In the said Exhibit NCN 2, the outstanding debt sum was N221,827,503.75 and the ‘Facility Restructuring Terms include:
1. A concessionary outstanding debt of N321,742,308.56 will be accepted as settlement sum.
2. The settlement sum will be converted to Ordinary Shares; this translates to 23% of Company’s shares/value (convertible to preference shares at the discretion of AMCON) with special Voting Rights and Power to appoint Management of Nabegu Company Nigeria Limited.
3. AMCON reserves the right to exit the debt at any point.
4. The above terms will be subject to Nabegu Company Limited receiving working Capital Funding from the Bank of Industry or any other financial institution.
5. AMCON will consider the issuance of a guarantee if and when requested for by the Bank of Industry or any other financial institution.
6. Shares to be reconverted to debt at an interest rate of 15% p.a. backdated if the company does not meet specific targets on revenue, dividends and profit.
The Plaintiff contended that having fulfilled clause 2 of the above terms and the 1st Defendant vide the 2nd Defendant accepting the allotted 4.6 Million Units of the Plaintiffs shares, the plaintiff is no longer indebted to the 1st Defendant, Exhibit IM1 is extinguished and that the 1st defendant cannot validly appoint a Receiver/Manager over the affairs of the plaintiff. Also, that it is the responsibility of the 1st Defendant as a shareholder to secure the working capital funding from the Bank of Industry or from any financial institution.
The Defendants on the other hand contended that Exhibit NCN 2 was made ‘subject to’ the plaintiff ‘receiving working capital funding from the Bank of Industry or any financial institution’ which was not done by the plaintiff thus resulting in revocation of all the concessions made.
Indeed, clause 4 of Exhibit NCN 2 stipulated chat ‘the above terms will be subject to Nabegu Company Limited receiving working Capital Funding from the Bank of Industry or any other financial institution.’
In Leadership Newspapers Group Ltd v. Mantu (2017) 2 NWLR (Pt. 1548) P9. 15, the Court of Appeal held that whenever the expression “subject to” is used, it is an expression of limitation. It implies that what the section or subsection is “subject to” shall govern, control and prevail over what follows in the section or subsection of the enactment. Where there is no clash, the phrase does nothing. If there is collision, the phrase shows what is to prevail. It imposes a restriction or limitation which governs the other provisions in the said section. If assigns a subordinate position to a clause or section of an enactment or provides qualification. It confers a right of priority in favour of the legislation to which the other is subject.
The Court further held that where the phrase “subject to” occurs in a statute, effect must be given to it because every word in a statute must be constructed and given effect to since the Court lean against presumption of surplusage or tautology in construction of statute except where that is manifestly the case. Words used in on agreement or contract or in a statute are not used without a meaning and so effect must be given if possible, to all the words used for the drafter is deemed not to waste its words or say any is void.
In Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) Pg. 139, Kalgo JSC (as he then was) held that it is a general principle of the law of contract that where a contract is made subject to fulfilment of certain specified terms and conditions, the contract is not formed or becomes binding unless and until those terms and conditions are complied with or fulfilled…’
In this instance, clause 4 was agreed to by the plaintiff and the 1st Defendant in Exhibit NCN2. The interpretation of the said clause to my mind is very clear and unambiguous. It is that for clauses 1 and 2 of Exhibit NCN2 to be effective, clause 4 must be satisfied otherwise the agreement is ineffective. By clause 3, the 1st defendant reserves the right to exit the debt at any point.
It does not lie in the mouth of the plaintiff to say that since the 1st defendant through the 2nd Defendant is now a shareholder, it behoves on it to secure the ‘working capital funding from the Bank of Industry or any other financial institution.’ It is not a term of exhibit NCN 2. If that were to be the intention of the parties, such clause ought to have been made express in the agreement. The plaintiff is estopped from adding, varying or modifying the contents of the agreement between the parties with the default in fulfilment of clause 4 of Exhibit NCN 2, and the debt reverting, the 1st defendant reserves the right to exit the debt in accordance with clause 3 of Exhibit NCN 2 and to take steps to recover the indebtedness of The plaintiff. Such right include instituting suit No. FHC/KN/C5/06/2018 (Exhibit NCN 15) and the subsequent appointment of the 3rd Defendant as Receiver/Manager contrary to the argument of the plaintiff’s counsel.
It must be added that the 1st Defendant is not contesting or denying the allotment of 4.6 million Units of shares to it vide the 2nd Defendant but that the default of the plaintiff in fulfilling clause 4 nullified the concession given to the plaintiff vide Exhibit NCN2. It is the 1st Defendant that has the locus to benefit from Exhibit NCN 2 and not a third party who is a stranger to Exhibit NCN 2.
The plaintiff counsel had argued that the Defendants cannot raise the issue of breach of Exhibit NCN 2 in the absence of any document because the parties reduced their agreement in writing (Exhibits NCN 2, 5 and 6) and that Exhibit PM2 came into being after the appointment of the Receiver/Manager. With greatest respect to counsel, Exhibits NCN 2, 5 and 6 are the documents before the Court and these documents are what the defendants are saying were breached by the plaintiff. If otherwise, it behoves the plaintiff to draw the Courts attention to the fulfilment of the said clauses to enable the Court find that there was no breach. It is not one of the terms of Exhibit NCN2, 5 & 6 that where there is a breach, the other party will inform the other of such breach before the exercise of any right accruing to such a party.
Exhibit RM 2 was drawing the plaintiff’s attention to the clauses of Exhibits NCN 2, 5 and 6 breached by the plaintiff.
Issue No. 1 is therefore resolved against the Plaintiff.
Having resolved issue no. 1 against the Plaintiff, it follows therefore that the plaintiff is not entitled to any damages and I so hold.
In the circumstance and considering all that I have said above, the result therefore is that I answer the three questions posed by the plaintiff in the negative.
For the avoidance of doubt, it is my finding that the Deed of Mortgage Debenture dated 07/07/99 and registered with the 4th Defendant as No. 192 at page 192 in Volume 13 (Mortgages) over the plaintiff’s property covered by certificate of occupancy no. LKN/IND/RC/82/49 between the plaintiff and the 1st Defendant has not been extinguished as a result of the default by the plaintiff in fulfilling Exhibit NCN2, 5 and 6 and thus the appointment of the 3rd Defendant as Receiver over the assets of the plaintiff is proper and the plaintiff is not entitled to the return of its Certificate of Occupancy No. LKN/IND/RC/82/49 or the setting aside of the Deed of Mortgage Debenture and Deed of Appointment of the 3rd Defendant registered and filed with the 4th and 5th Defendants respectively.
This suit is therefore dismissed for lacking in merit.”

That is the judgment Appellant appealed against, as per the Notice of Appeal dated 17th July, 2020, on pages 3569-3573 of the Records of Appeal, (Volume 3) disclosing 5 grounds of Appeal. Appellant filed Appellant’s Brief on 30/9/2020 and distilled 4 issues for the determination of the Appeal, as follows:
(1) Whether in the circumstance of this case, the learned trial Judge was right when he held that the Deed of Mortgage Debenture dated 07/07/99 and registered with the 4th Defendant as No. LKN/IND/RC/82/49 between the Appellant and the 1st Respondent has not been extinguished.
(2) Whether the learned trial Judge was right when he held that the appointment of the 3rd Defendant as Receiver over the assets of the plaintiff is proper.
(3) Whether the learned trial Judge was right when he held that the plaintiff is not entitled to the return of its Certificate of Occupancy No. LKN/IND/RC/82/49 or the setting aside of Mortgage Debenture and Deed of Appointment of the 3rd Defendant registered and filed with the 4th and 5th Defendants respectively.
(4) Whether the learned trial judge was right when he failed to evaluate and make a finding one way or the other on all the issues raised by the Appellant.

On page 5 of the brief, Appellant’s Counsel on ARRANGEMENT OF ARGUMENT, said:
“Issues No. 1, 2 and 3 are derived from Grounds 1, 2 and 4 of the Notice of Appeal, while Issue No. 2 is distilled from grounds 3 and 5 of the Notice of Appeal. Issues 1, 2 and 3 would be taken, together.”

The 1st, 2nd, 3rd and 6th Respondents filed their joint brief on 19/10/2020 and distilled 2 issues for the determination of the appeal, as follows:
1) Whether the learned trial judge was right in holding that since the restructuring of Appellant’s outstanding, indebtedness agreement has been made subject to Appellant receiving working capital funding from Bank of Industry, or any other financial institution as contained in Clause 4 under facility Restructuring Terms contained at page 1 Clause 4 Exhibit NCN2 executed by the Appellant and 1st Respondent, then the contract is not binding unless and until those terms and conditions are complied with or fulfilled. (Grounds 2 and 3).
2) Whether oral or parole evidence can be used to alter/vary the terms and conditions of the loan agreement executed by the Appellant in favour of the 1st Respondent. (Ground 1, 4 and 5).

The 4th and 5th Respondents filed no brief in this appeal and were not represented by Counsel.

PROLIFERATION OF ISSUES
The issues are recondite and further muddled up in this appeal. I have noticed serious flaws and defects in the way Appellant related the issues for determination to the grounds of the appeal and this cannot be glossed over, as it would not permit the consideration of this appeal on the merits.

Appellant’s Counsel had related the 4 issues for the determination of the appeal to the 5 grounds of the appeal (in the Notice of Appeal), as earlier reproduced on the page 5 of the Brief of Argument, filed on 19/10/2020, Appellant’s Counsel appeared confused when he related the issues for determination to the grounds of Appeal, as follows:
“Issues No. 1, 2 and 3 are derived from Grounds 1, 2 and 4 of the Notice of Appeal, while Issue No. 2 is distilled from grounds 3 and 5 of the Notice of Appeal. Issues 1, 2 and 3 would be taken together.”

I had thought that Appellant’s Counsel made a mistake by failing to add the word “respectively”, when he said: “Issues No. 1, 2 and 3 are derived from Grounds 1, 2 and 4 of the Notice of Appeal” I wanted to pardon that mistake and to consider the Appeal on the issue 1 (as derived from ground 1); issue 2 (as from ground 2) and issue 3 (as from ground 4). But that was frustrated on reading the next sentence by the Appellant’s Counsel, when he (Appellant’s Counsel) added: “while issue no. 2 is distilled from grounds 3 and 5 of the Notice of Appeal.”

That implied that, Appellant’s Counsel, in fact, had blundered in the way he related the issues to the grounds of the Appeal. And he further demonstrated that blunder, when he said: “Issues Nos. 1, 2 and 3 would be taken, together.” (Page 5 of the Brief).

But on page 13, he argued the issue 4, separately – “Whether the learned trial judge was right when he failed to evaluate and make a finding one way or the other on all the issues raised by Appellant.”

However, Appellant’s Counsel never mentioned issue 4 when he related the grounds of appeal and did not state which ground gave birth to that issue 4 (he never referred to that issue in the ARRANGEMENT OF ARGUMENTS)! He rather referred to the issue 2, twice (when the said that issues 1, 2, and 3 were distilled from grounds 1, 2 and 4), and thereafter said “issue 2 is distilled from grounds 3 and 5.”

Such arrangement of arguments has offended all known practice and procedure of arguing appeals in this Court. We have stated several times, that in this Court, appeals are argued on issues, properly distilled from or formulated on the grounds of appeal, which must flow from and predicate on the judgment appealed against, touching on the ratio decidendi of the said judgment. See the recent case of Sadiq & Ors Vs Yunusa (2022) LPELR – 56568 (CA), wherein we held:
“It is true that an issue for determination of appeal must flow from and/or derive from the grounds of the appeal, which must, in turn, be founded and predicated on the judgment appealed against, touching on the ratio decidendi of the said judgment. See the cases of Anyatonwu & 3 Ors Vs. Ezedu & 3 Ors (2018) LPELR 43809 CA, Nwaigwe & Anor Vs. Amaechi Esq & Ors (2017) LPELR – 43080 CA, Francis Vs Asugha (2020) LPELR – 50616 (CA). In the case of Eze Vs. the State (2017) LPELR – 42006 (CA), it was held: It has been stated severally that appeals (the grounds thereof and issues there form) must be founded on the judgment of the Court, appealed against, touching on the ratio decidendi or live issue(s) in the judgment. See the case of Ossai Vs FRN (2013) 13 WRN 87, Agboroh Vs WAEC (2016) LPELR – 40974 (CA); Shettima Vs Goni (2012) 18 NWLR (pt.1279) 413, Nnolim Vs Nnolim (2017) LPELR – 41642 (CA). In the case of Nze Vs Aribe (2016) LPELR – 40617 (CA), this Court held: “This point seems to have enjoyed some notoriety in the law governing appellate proceedings, that the grounds of appeal and/or issues for determination of appeal, must relate to and flow or derive from the judgment appealed against, touching on the ratio decidendi or live issue(s) in the judgment. See Anozia Vs Nnani (2015) LPELR – 24277 CA (2015) 8 NWLR (pt.1461) 241, Obosi Vs NIPOST (2013) LPELR – 21397, UNILORIN Vs Olawepo (2012) 52 WRN 42; Alataha Vs Asin (1999) 5 NWLR (pt.601) 32, Punch Nig. Ltd Vs Jumsum Nig. Ltd (2011) 12 NWLR (pt.1260)162.”

It is also the law that Appellant cannot split a ground of appeal, to generate two or more issues for determination, and cannot lump many issues for determination, together, purporting same to distill from several grounds of appeal, also lumped together. Appellant has to, clearly, specify which issue is distilled from which ground of appeal, before he can proceed to argue the issues, either singly or together.
In the recent case ofNorth West Petroleum and Gas Company Ltd & Anor Vs Prince Chigozie Iloh & Ors (2021) LPELR – 55509 CA, this Court held as follows, on proliferation of issues:
“…he (Counsel) split many of the grounds of appeal to donate several issues for determination, in a manner quite offensive to the rules and procedure for arguing appeals. The law is trite, that whereas Appellant can combine two or more grounds of Appeal to generate an issue for the determination of appeal, he cannot split a ground of appeal to raise several issues for determination of the appeal. That is to say, that the moment an Appellant has distilled an issue from a given ground(s) of appeal, he cannot, thereafter, use the said (used) ground(s) of appeal to generate another issue for the determination of the appeal, as that would amount to the proliferation of issues. See the case of A.G. Imo State Vs Imo Rubber Estate Ltd and (Ors) (2019) LPELR-47579 (CA); Phillips Vs Eba Odan Commercial & Industrial Co. Ltd (2012) LPELR-9718 (SC); Ugo Vs Obiekwe (1989) 2 SC (Pt. 11) 41. Of course, it is trite, that once Appellant has distilled an issue for determination of appeal from a given ground(s) of appeal, that ground (or grounds) of appeal ceases to be available to donate another issue for determination of the appeal. In that case of A. G. Imo State Vs Imo Rubber Estate Ltd & Ors (supra). This Court held: “Appellants, in particular, committed proliferation or multiplicity of the issues, as they raised multiple issues for determination of the appeal from the same ground(s) of appeal, and misled the other parties into the same error. They (Appellants) distilled their issue one from grounds 2, 5 and 6 of the appeal and, at the same time, distilled issue 2 from grounds 1, 3, 4 and 5, and issue 3 from the same grounds 3, 5 and 6, while also using, the same grounds 2 and 5 to distil issue 4, and the same grounds 1, 5 and 6 (together with ground 9) to distil issue 5. Thus, grounds 1, 2, 3, 4, 5 and 6 were split to generate different issues – 1, 2, 3, 4 and 5, resulting in unpardonable procedural/legal confusion, absurdities and impossibilities, when it comes to the rules of argument of appeal. The law is trite that one cannot split a ground of appeal to generate different issues for the determination of appeal. It is also the law that, once a given ground of appeal has been used, to distil an issue for determination of appeal, that ground ceases to be available to be used, either alone, or in conjunction with another ground(s) of appeal to generate another issue for the determination of the Appeal.” See Marcathy Vs Tope (2012) All FWLR (Pt. 648) 833, Nwaigwe Vs Okere (2008) All FWLR (Pt. 413) 843, Oseni Vs Bajulu (supra); Blessing Vs FRN (2013) 12 WRN 36. See also Aduba & Ors Vs Aduba (2018) LPELR-45756 CA, Egbebu Vs IGP & Ors (2016) LPELR-40224(CA) and Okuwa & Anor Vs Ngere & Anor (2020) LPELR- 49716 CA, where we also held: “Having used the said ground one to formulate the issue one for the determination of the appeal, the said ground one of the appeal ceased to be available to donate another issue for determination of Appeal… See also Nigerian Agricultural Co-op. Bank Ltd Vs Lewechi Ozoemelam (2016) LPELR-26051 (SC).”
See also Bayero University, Kano Vs Muhammad (2022) LPELR – 56733 CA, Dakwak Vs Jos South LG Council (2021) LPELR – 55143 (CA) and Giwa Vs Ajayi & Ors (1992) LPELR – 14922 (CA), where it was held:
“Issues for determination must be formulated in such a way as to relate to specific grounds of appeal. Issues which do not relate to a ground of appeal are incompetent.”
And in the case of Union Bank of Nigeria Plc Vs Anthony Ejike Mbaka & Ors CA/E/296/2017, delivered on 29/10/2021, where Appellant’s Counsel made similar errors as in this Appeal, we held:
Appeal can only be argued on issue or issues, donated for the determination of the appeal, and the issues must be properly related to the grounds of the appeal, which must, in turn, flow from or relate to the ratio decidendi of the judgment, appeal against. That constitutes the trite principles of law, governing argument of appeals in this Court and in the Apex Court. See the cases of Sheidu Vs The State (2014) LPELR – 23018 (SC); (2014) 15 NWLR (Pt.1429) 1, Ukwuoma Vs Okafor (2016) LPELR – 41505 (CA), Fajebe & Anor Vs Opanuga (2019) LPELR – 46348 (SC), North West Petroleum & Gas Co. Ltd & Anor Vs Prince Chigozie Iloh & Ors (2021) LPELR – 55509 (CA).
See also CITEC International Estate Ltd & Ors Vs Josiah Oluwole Francis & Ors (2021) LPELR – 53083 SC, where it was held:
It is also settled law that an issue for determination can only be distilled from a competent ground or competent grounds of appeal. As observed earlier, in a situation where an issue for determination is derived from both competent and incompetent grounds, the issue is liable to be struck out for incompetence. See: Jev Vs lyortyom (supra).
We have stated several times that an issue for determination of appeal can only derive from one or more grounds of appeal, combined, but a ground of appeal cannot be split to generate more than one issue for determination of appeal. And, where a ground of appeal has been used, or combined with another (or other) ground(s) of Appeal, to distill an issue for determination, that used ground(s) ceases to be available to give birth to another issue for determination of the appeal. See the recent case of North West Petroleum & Gas Co. Ltd Vs Iloh & Ors (2021) LPELR – 55509 CA, where we held:
“…The law is trite that arguing a valid ground(s) of appeal (or issue distilled therefrom) together with a defective ground(s) (or issue(s)) is not permitted, as it makes the argument incompetent. This is because, the inclusion of the defective ground(s) or issue(s) in the argument, vitiates the entire submission, as the virus of defective ground(s) or issue(s) has infected the valid ground or issue, and the entire argument. See the case of Augustine & Anor Vs Apugo & Ors (2019) LPELR – 48822 (CA), where it was held: “1st Respondent argued issues 2 and 3 together, and I think that corrupted the issue 2, having earlier held that the issues 3 and 5 for determination (of the appeal) are incompetent for proliferation of issues. A party, in my view, cannot argue an invalid issue for determination of appeal with a valid one. See Ezuma & Anor Vs FRN (2017) LPELR – 43382 (CA). Even by joining the said ground two with ground one, to argue the 1st issue, that joining has corrupted the said issue and the argument thereon… Uzoho vs. Asugha (2017) LPELR – 42073 (CA)… The law is trite, that combining an incompetent ground of appeal with a valid one, to raise and argue issue in appeal, is a serious legal blunder, and renders the issue incompetent, as the defective/incompetent ground has infected the valid ground with its virus of incompetence.” See Akpan vs. Bob &Ors (2010) LPELR – 376 SC; (2010) 17 NWLR (pt. 1223) 42. I therefore discountenance the said argument of issues 2 and 3, argued together by the 1st Respondent.” See also the case of Godwin Loke Vs IGP & Anor (1997) 11 NWLR (Pt. 527) 57, where it was held: “Also where an incompetent ground of appeal is based on issue within competent ground of appeal, the incompetent ground of appeal contaminates the issue on the competent ground of appeal and renders the issues based on the competent ground of appeal impotent and incompetent…”

I therefore do not think the argument of this appeal is competent for us to consider it on the merits. It is accordingly struck out, with ₦100,000.000 (One Hundred Thousand Naira) cost, against the Appellant, payable to 1st, 2nd, 3rd and 6th Respondents.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother, ITA GEORGE MBABA, J. C. A. I am in agreement with him. I also strike out the appeal for incompetence.

I abide by the order as to costs contained in the leading judgment.

USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, ITA G. MBABA, JCA. I am in agreement with the issues considered and resolved by His Lordship. I have nothing more to add. I abide by the conclusions reached therein.

Appearances:

A. S. BAWA, ESQ. For Appellant(s)

A. M. KARAYE, ESQ. – for 1st, 2nd, 3rd and 6th Respondents For Respondent(s)