STANBIC IBTC HOLDING PLC v. FINANCIAL REPORTING COUNCIL OF NIGERIA & ANOR (2018)

STANBIC IBTC HOLDING PLC v. FINANCIAL REPORTING COUNCIL OF NIGERIA & ANOR

(2018)LCN/12169(CA)

In The Court of Appeal of Nigeria

On Friday, the 23rd day of November, 2018

CA/L/208/2016

RATIO

COURT AND PROCEDURE: THE PRIMARY FUNCTION OF THE COURT

“The primary function of the Court is to search for the intention of the lawmaker in the interpretation of a statute. Where a statute is clear and unambiguous, as it is in this case, the Court in the exercise of its interpretative jurisdiction must stop where the statute stops. In other words, a Court of has no jurisdiction to rewrite a statute to suit the purpose of one of the parties or both parties. The moment a Court of law intends to rewrite a statute or really rewrites a statute, the intention of the lawmaker is thrown overboard and the Court changes place with the lawmaker. In view of the fact that that will be against the doctrine of separation of powers entrenched in the Constitution, a Court of law will not embark on such unconstitutional act. In Adewunmi v. A.G. Ekiti State (2002) 2 NWLR (Pt. 751) 474.”PER MOHAMMED LAWAL GARBA, J.C.A.

INTERPRETATION: INTERPRETATION OF STATUTE

“These provisions are in very plain clear and unambiguous words and legislative language such that they do not require any interpretation, but ascription of their ordinary, grammatical and natural meanings without any glosses or interpolations by a Court. See Kalu v. Odili (1992) 5 NWLR (240) 130 @ 193-4; Ibrahim v. Ojomo (2004) 1 SC (Pt. II) 136; CCCT & C.S Limited v. Ekpo (2008) 6 NWLR (1083) 362; Uwazurike v. A.G., Federation (2007) 2 SC, 169, (2007) 8 NWLR (1035) 1; Nigeria Army v. Dodo (2012) 18 NWLR (1331) 151; Buhari v. Yabo (2018) 9 NWLR (1623) 197 @ 210, Abubakar v. Nasamu (2012) LPELR-7826 (SC).” PER MOHAMMED LAWAL GARBA, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

STANBIC IBTC HOLDING PLC Appellant(s)

AND

1. FINANCIAL REPORTING COUNCIL OF NIGERIA

2. NATIONAL OFFICE FOR TECHNOLOGY ACQUISITION AND PROMOTION Respondent(s)

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment):

This appeal is against the decision by the Federal High Court, Lagos (Lower Court hereafter), delivered on the 14th, December 2015, initiated by way of Originating Summons dated and filed on the 23rd October, 2015. The questions submitted to the lower Court by the Appellant for answers were on the legal consequences of failure to register a registrable agreement under the 1979 Act, setting up the 2nd Respondent (NOTAP Act) and on the powers of the 1st Respondent under its establishment Act 2011 (FRCN Act). In the event that all or any of the questions were/was answered in the affirmative, the Appellant sought for declaratory and injunctive reliefs, particularly against the 1st Respondent, from the lower Court.

The appeal was argued on the three (3) grounds contained on the Amended Notice of Appeal dated the 17th March 2017, from which three (3) issues are said to arise for decision by the Court in the Appellant’s Amended Brief filed on 20th March, 2017. They are as follows: –

a. Whether the NOTAP Act 1979 applies to agreements for the export of technology from Nigeria to a foreign country.

b. Whether the Appellant’s affiliate software licence agreement of 2 September 2013 was approved/registered by NOTAP.

c. What is the effect of the failure to register an agreement that is registrable under the NOTAP Act 1979?”

The 1st Respondent filed a Notice of Preliminary Objection (NPO) and an Amended Brief on the 3rd May, 2017 in which the objections were argued. The objections were that: –

“1. That this Appeal be dismissed, same being an academic exercise. And/or;

2. An Order striking out issues a, b and c as distilled in the Appellant’s Amended Brief of Argument dated March 20, 2017.

The grounds upon which the objections are based are that:-

1. The Appellant approached the lower Court via an Amended Originating Summons praying the Court to determine 15 questions of law arising from and in relation to the construction of the provisions of the National Office for Technology Acquisition and Promotion Act 1979 (NOTAP Act) and the Financial Reporting Council of Nigeria Act, 2011;

2. The Appellant also sought for 22 declaratory and injunctive reliefs against the Respondents at the lower Court;

3. On December 14, 2015, the lower Court Coram Honourable Justice I. N. Buba, resolved all the 15 questions of law against the Appellant and consequently held that the 22 declaratory and injunctive reliefs as couched by the Appellant, were not grantable;

4. The Appellant on February 17, 2016, filed a Notice of Appeal, which was amended by order of this Court on March 15, 2017, by abandoning grounds 4 to 10 of the said Notice of Appeal. The Appellant subsequently filed an Amended Notice of Appeal with just 3 rounds of appeal, dated and filed on March 17, 2017, on the first 2 questions of law resolved against it by the lower Court.

5. The Appellant failed and neglected to challenge or appeal against the crucial part of the judgment of the lower Court at page 1424 of Vol. IV of the records of appeal, wherein the Court held concerning the declaratory and injunctive reliefs as follows: –

The Court is unable to agree with the plaintiff’s position, even if the Court had agreed with the Plaintiff and had answered all the questions in favour of the Plaintiff. This Court is of the firm view that from the circumstances of this case, declaratory reliefs sought cannot be granted.? (Underline ours)

6. It is trite that a part of a judgment not appealed against subsists and is binding until it is set aside by an appellate Court.

7. The Appellant having failed to appeal against this crucial finding in 5 above, has made this appeal barren, such that if this Court answers the questions before it in favour of the Appellant, this Court would not be clothed with the vires to grant the reliefs as sought for in the Amended Originating Summons as the lower Court’s finding as to the un-grantable nature of the reliefs still stands.

8. Issues ‘a’ and ‘c’ as formulated by the Appellant do not touch on live issues as no specific application for registration or agreement which was refused by the 2nd Respondent was referred to by the Appellant in either of the 2 issues.

9. Allowing Issues a and c will be setting precedence for any person to approach the Court without tying their issues to any specific live issues which the Court can pronounce upon.

10. Issue b is irrelevant to the determination of this appeal as it does not arise from the judgment of the lower Court nor from Counsel’s arguments at the lower Court.

11. This appeal is therefore a waste of precious judicial time and resources.”

In the event that the objection fails, a sole issue is submitted for determination in the appeal in the following terms: –

What is the effect of NOTAP’s (2nd Respondent’s) refusal to register the Appellant’s Sale, Purchase and Assignment agreement dated July, 18, 2012 and submitted to the 2nd Respondent for approval?

For the 2nd Respondent, the issues formulated in the Appellant’s brief were argued in the 2nd Respondent’s Amended Brief filed on the 24th May 2017, also deemed on the 2th October, 2017.

Amended Appellant’s Reply Briefs to the 1st and 2nd Respondents’ briefs, respectively were both filed on the 12th September 2017, deemed on 2nd October, 2017 in consequence of the deeming of the Respondents’ Briefs on that day, to answer the objection by the 1st Respondent and other issues in the said briefs.

The 1st Respondent also filed a Reply to the Appellant’s arguments in opposition to the objection on 19th September, 2017.

In line with practice, I would deal with and determine the objection by the 1st Respondent as it seeks to, primarily, terminate the proceedings in the appeal at its stage by the dismissal of the appeal on the grounds set out above.

Before a consideration of the merit of the objection, there is a need for a comment on the propriety of the 1st Respondent’s Reply to the Appellant’s Reply brief which contains arguments in reaction and answer to the objection argued in the 1st Respondent brief. I would start by saying that the practice for the filing of briefs of argument in appeals before this Court, is regulated and governed by the Court of Appeal, Rules, 2016 (for the purpose of the appeal and the Reply to the Reply brief, filed by the 1st Respondent on the 19th September, 2017). Order 19, Rules 2 and 4, respectively, provide for the filing of the Appellant’s and Respondent’s briefs in an appeal, while Rule 5 provides for the filing of a Reply brief by an Appellant, after receipt of the Respondent’s brief, which shall deal with all new points arising from the Respondent’s brief.

Order 19 of the Rules which deals specifically with the practice of filing briefs by parties to an appeal in the Court, does not provide for a Respondent who filed a Notice of Preliminary Objection or raised and argued a preliminary objection in the Respondent’s brief, to file a Reply in reaction to the Appellant’s Reply brief in which the objection was answered and reacted to by an Appellant.

Order 10 of the Rules which provides for the giving of notice of a preliminary objection by a Respondent who intends to reply upon it to the hearing of an appeal and the filing of such notice, does not provide for the filing of a Reply by such a Respondent to the Appellant’s Reply brief in which the objection was answered or reacted to. I am unable to find any provisions of the Court of Appeal Rules which provide for, allow, permit or say that a Respondent who raises and argues a preliminary objection to the hearing of an appeal in the Respondent’s brief, has and is entitled to file a Reply in Reply to the objection by the Appellant, to whose appeal the objection, was taken, in the Appellant’s Reply brief.

There are no provisions in the Court of Appeal Rules for the filing of a Reply to the Appellant’s Reply brief which answered or reacted to an objection argued in the Respondent’s brief.

I am not aware of and has not been referred to any judicial authority by the learned Silk for the 1st Respondent which says that Reply brief by a Respondent who argued preliminary objection, to the Appellant’s Reply brief is permissible or cognisable in this Court. The established, accepted and known practice is for an Appellant to answer or respond to a preliminary objection to the hearing of his appeal, by the Respondent, in an Appellant Reply brief which closes arguments/submissions on the objection. Raising a preliminary objection by a Respondent to an appeal should not be equated with a cross appeal by a Respondent to an appeal wherein by established practice and procedure, such a Respondent/Cross-Appellant has a right to file a Reply to the Cross-Respondent/Appellant’s brief where both the appeal and the cross appeal are argued in the same briefs of argument by the parties.

The above position as it is, I have perused the 1st Respondent’s Reply to the arguments of the Appellant on the Preliminary Objection as contained in the Appellant’s Reply brief and note that it only contains further arguments of the objection on why it should be upheld. Such a Reply is not and should not be an avenue for additional or further arguments on why the objection should be sustained in the appeal.

In the above circumstances, the Reply is liable to be discountenanced in the determination of the objection.

I now turn to the merit of the objection. I would consider the 1st Respondent’s Issues on the objection together. The arguments on the Issues in the 1st Respondent’s brief are to the effect that the Appellant did not appeal against part of the decision by the lower Court that the reliefs sought on the originating summons were not grantable even if all the questions raised therein were answered in Appellant’s favour and is bound by the decision, on the authority of SPDCN v. X.M. Fed. Ltd. (2007) 4 WRN, 80 and Orisakwe & Sons v. Afribank, Plc (2012) LPELR-20094(CA). According to learned Counsel, failure to appeal against that part of the decision by the lower Court has rendered the appeal hypothetical and academic on the ground that even if the appeal succeeds, there are no reliefs which could be granted to the Appellant, since the decision by the lower Court that the reliefs sought by the Appellant on the originating summons are not grantable, is still extant and binding on the parties. Citing Baker Marine Nig. Ltd v. Chevron Nig. Ltd (2007) 2 WRN, 1 @ 20, it is submitted that the law is that the Court does not engage in academic appeals and reference was made to E.S.I.N.E.C v. PDP (2013) LPELR-20411(CA) on the definition of an academic appeal.

It is the further submission of learned Counsel that the Appellant unwittingly conceded at paragraph 6 on page 3 and paragraph 7 at page 4 of the Appellant’s Amended brief that Issues ‘a’ and ‘b’ formulated for decision by the Court in the appeal, are academic since they were not linked to any live action of the Respondents or the lower Court. Learned Counsel contends that since the Appellant did not challenge the refusal by the 2nd Respondent to approve any particular agreement and has not asked the Court to determine whether the NOTAP Act, 1979 applies to any particular agreement or the effect of failure to register a particular registrable agreement under the Act, the Appellant cannot by way of hypothetical questions, seek to challenge the refusal. The lower Court’s unreported decision in Alraine Shipping Agencies Nig. Ltd v. Nig. Shipping Council, Suit No: FHC/L/CS/1546/2014, delivered on 17th December, 2014 is commended to the Court on hypothetical questions.

It is then argued that the Appellant’s Issue ‘b’ was not an issue raised before and was not pronounced upon by the lower Court in the judgement appealed against, thereby being rendered an issue not arising from the judgement which by the position of the law, is incompetent on the authority of Oba v. Egberongbe (1999) 8 NWLR (615) 487, among other cases. Learned Counsel maintains that the issue of the application for the registration of the agreement of 2nd September, 2013 was not raised before the lower Court which did not pronounce on it in its judgement and it is irrelevant to the appeal.

In conclusion, the Court is urged to uphold the objection and to strike out the appeal or the issues formulated by the Appellant for being academic.

For the Appellant, it is submitted that the objection is misconceived as the part of the decision of the lower Court relied on for the objection was an orbiter since it was a comment of what that Court would have done if all the questions on the Appellant’s summons were answered in the affirmative and was not based on facts to constitute a finding. The learned Silk (QC) for the Appellant contends that since the lower Court did not grant any declaratory or injunctive reliefs, there could not be an appeal against the grant of such reliefs by the Appellant and that paragraph 4 of the Amended Notice of Appeal clearly sets out the reliefs sought from the Court by the Appellant. In any case, he further argues, if the Court allows the appeal, it has the power to grant consequential and ancillary reliefs to give effect to its decision.

It is also the case of the Appellant that the issues a’ and ‘c’ formulated for determination in the appeal by the Appellant deal with the NOTAP issues decided by the lower Court whereby the Appellant asked for the interpretation of Section 7 of the NOTAP Act, 1979 and the effect of non-registration of a registrable agreement, rather than the refusal to register a particular agreement. Issue ‘b’ of the appellant is said to be a challenge to the holding by the lower Court at page 1395 of the Record of Appeal that the 2nd Respondent has even refused to approve the importation of the technology, on the ground the lower Court got the factual position wrong.

Now, the part of the decision/judgement of the lower Court upon which the Issue 1 of the objection is predicated is at page 1424-5 of Record of Appeal and as follows: –

“The Court is unable to agree with the plaintiff position, even if the Court had agreed with the plaintiff and had answered all the questions in favour of the plaintiff. This Court is of the firm view that from the circumstances of this case, declaratory reliefs sought cannot be granted. In the sense that, the powers to award declaration by the Court is stated clearly:

‘That notwithstanding, this being a claim for declaratory reliefs same cannot be granted on admission or default of defence but with evidence and arguments. See the case of IBRAHIM V. MILITARY ADMINISTRATOR OF KADUNA STATE (2004) 5 NWLR PT 866 PAGE 322.'”

This statement by the lower Court is clearly a comment made by it that even if all the questions posed on the Appellant’s summons were answered in its favour, it would not have granted the declaratory reliefs sought as they could not be granted either on admission or default of defence, but on satisfactory proof by way of evidence and convincing arguments, on the authority of the case cited therein. The comment was made after the lower Court had completely, absolutely, effectually and finally answered and determined all the questions submitted to it for answers by the Appellant by conclusively pronouncing its answers to the questions. This was what the lower Court said before the comment, at the same page 1424 of the Record of Appeal:

“This Court upon a calm reflection on the affidavit evidence before it, the arguments of learned counsel, almost reproduced verbatim to a boring length for emphasis where necessary; the point of law, has come to an inevitable decision in the circumstances of this case in answering all the questions framed by the plaintiff, against the plaintiff i.e. questions (a)-(o) All the issues argued in sum are resolved against the plaintiff.”

For the purpose of an appeal, this part of the judgment represents the ratio decidendi of the decision on the questions submitted by the Appellant to the lower Court for answers and upon which he predicated and sought the declaratory reliefs from that Court. This part contains the decision by that Court and the reasons for the decision on the questions submitted to it for determination and answers.

The comment made by the lower Court after the above decision, was not material or necessary for the decision as it was an opinion expressed, not on the facts and evidence relevant to the determination of the questions, but on what the lower Court would have done even if the questions which it has conclusively answered against the Appellant, were answered in the Appellant’s favour.

In the case of Odunukwe v. Ofomata (2010) 18 NWLR (1225) 404, the apex Court, per Adekeye, J.S.C., defined what ‘obiter’ or ‘obiter dictum’ is in relation to a decision by Court in the following terms: –

“An obiter dictum is a statement made in passing which does not reflect the ratio decidendi, that is the reasoning or ground upon which a case is decided.”

In line with apex Court definition, this Court, per Owoade, J.C.A., in NDDC v. NLNG Ltd. (2010) LPELR-4596(CA) enunciated the import of an obiter dictum as follows:

“Strictly speaking, ‘an obiter dictum’, is a remark made or opinion expressed by a judge in his decision upon a cause by the side, that is incidentally or collaterally and not directly upon the question before the Court, or it is merely by way of illustration argument, analogy or suggestion.”

In the earlier case of Nwana v. FDCA (2004) 13 NWLR (889) 128 @ 141, it was held that: –

“Now, an obiter dictum is a judge’s passing remarks which have nothing to do with the live issues for determination. It is the Judge’s statement uttered by the way, so to say, which unlike the ratio decidendi, has no binding force.”

See also Yusuf v. Egbe (1987) 2 NWLR (56) 341); AIC Ltd. v. MMPC (2005) 11 NWLR (937) 563 @ 589; Omokhodion v. FRN (2006) ALL FWLR (292) 1; NDP v. INEC (2012) 12 MJSC (Pt. III) 67; Amobi v. Nzegwu (2013) LPELR-21863 (SC).

In the above premises of the law, the learned Silk for the Appellant is right and so I agree with him, that the comment/statement made by the lower Court that even if the questions submitted by the Appellant to it for answers, were answered in his favour, the reliefs sought were not grantable was a mere obiter dictum that has no binding effect or force in the judgement by that Court; the subject of this appeal. For that reason, failure by the Appellant to appeal against the comment/statement has no relevance or material bearing on the appeal such as to render it academic.

Arguments of the 1st Respondent on the Issue 1 of the objection lack merit and the issue is resolved against the 1st Respondent.

On Issue 2 of the objection, question (b) on the Originating Summons which the Appellant sought an answer from the lower Court is as follows:

b. On the construction of NOTAP Act 1979 what is the consequence of non-registration render the agreement illegal and unenforceable or null and void or is the effect of non-registration is as stated in Section 7 of the NOTAP Act, namely to prevent payment or remittance of money to any person outside Nigeria in respect of the unregistered agreements?”

In its judgment, the lower Court in its answer to the question made the findings, among others, at page 1395 of the Record of Appeal, that: –

“It is true and rightly argued by the 1st Defendant that it is tempting to argue that since Section 7 of the National Office for Technology Acquisition and Promotion Act has not provided for a sanction that any contract which is not in compliance is not void. It is rightly in my view submitted that this is not the position of the law. See the case of ADESANOYE V. ADEWOLE (2006) 14 NWLR (Pt. 1000) 242, page 269, par C- H where the Supreme Court state the effect of failure to comply with a statutory provision where the statutory provision does not prescribe a sanction thus:-

“Where a statute clearly provides for a particular act to be performed, failure to perform the act on the part of the person to perform the act will not only be interpreted as a delinquent conduct by will be interpreted as not complying with the statutory provision. In such a situation, the consequences of non-compliance follow, nothwithstanding that the statute does not specifically provide for a sanction. The Court can, by the invocation of its interpretative jurisdiction, come to the conclusion that failure to comply is against the party in default.”

“It is also correctly submitted that whichever way the Court looks at it, the Agreement is illegal, void and unenforceable.”

The import of the above finding is that under Section 7 of the NOTAP Act, 1979, an agreement registrable, but not registered as provided for in the provisions, is illegal, void and unenforceable, contrary to the arguments put forward by the Appellant that such an unregistered agreement is not void, illegal and unenforceable. Being dissatisfied with the decision by the lower Court on the answer to the question, the Appellant brought grounds of appeal from which the Issues ‘a’ and ‘c’ were distilled for decision by the Court in the appeal.

For the purpose of this appeal, Order 3, Rules 6 and 7 of the Federal High Court (Civil Procedure) Rules 2009, provide for commencement of cases/suits before the lower Court by way of Originating Summons. The provisions are:

6: Any person claiming to be interested under a deed, will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.

7: Any person claiming any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right depends upon a question of construction of an enactment, may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed.

By these simple and straight forward rules, a suit may be begun or initiated by Originating Summons in the lower Court where claims of any legal or equitable rights in a case depend on the construction or interpretation of a deed, will, enactments/laws or other written instruments or documents. A party is entitled to apply to the lower Court for the determination of question or construction of laws, enactment or other written instruments and for declaration of as to any right claimed under such laws or enactments.

The Appellant, in compliance with the above provisions of the Rules of the lower Court, submitted questions among which was the question (b) set out earlier and sought for declarations (b) and (c) on the summons which relate to its legal or equitable right in respect of agreements registrable under the NOTAP Act, 1979. The NOTAP Act, 1979 is an extant or existing legislation, the provisions of which are alive for the purpose of interpretation and application to all relevant agreements registrable thereunder; whether existing or to be entered into in the future in Nigeria. On that ground, it is not correct to say that the Issues ‘a’ and ‘c’ of the Appellant which question the decision by the lower Court that non-registration of a registrable agreement under Section 7 of the NOTAP Act, 1979 renders it illegal, void and unenforceable, are not live issues and that they are academic or hypothetical issues in the appeal. The case of Dr. Ardo v. INEC (supra) is the latest reported decision in which the apex Court restated the definition of what constitutes an academic or hypothetical question or issue as defined in earlier cases such as Odedo v. INEC (2008) 17 NWLR (117) 554-SC; Plateau State v. A. G. Federation (2006) 3 NWLR (967) SC; Adeogun v. Fashogbon (2008) 17 NWLR (1115) 149-SC; Agbakoba v. INEC (2008) 18 NWLR (1119) 489 @ 546-7-SC, all referred to by the apex Court in the case.

Put simply, an academic issue or question is an issue which does not relate to and has no bearing to an issue to be decided or decided in live litigation between the parties before a Court. A hypothetic question or issue is one which is not real in a litigation, but is theoretical, imaginary and not related to the real issues in litigation but raised for opinion, not related to the facts in dispute in the litigation in which it is raised. An academic issue and a hypothetical question are one and same in substance and are two sides of the same coin of irrelevance to the line and material issues in litigation. For that reason, the arguments of the 1st Respondent on Issue 2 of the objection, like on Issue 1, are bereft of merit and the issue is resolved against the 1st Respondent.

The last of the issues argued on the objection is whether Issue ‘b’ formulated in the Appellant’s brief arose from the decision of the lower Court. As a reminder, the Issue ‘b’ submitted by the Appellant for decision in the appeal is thus: –

Whether the Appellant’s affiliate software licence agreement of 2, September 1013 was approved/registered by NOTAP.?

It is indicated in the Appellant’s brief at paragraph 28 on page 11, that Issue 2 (as set out in paragraph 13 on page 7) ‘is taken from Ground 2 of the 17 February 2016 Notice of Appeal However, it may be recalled that the Appellant was granted leave by the Court to amend the Notice of Appeal of 17th February, 2016 on the 17th March 2017, pursuant to which the Appellant filed the Amended Notice of Appeal dated and filed on the same 17th March, 2017.

Although the Notice of Appeal 17th February, 2016 did not cease to exist for the purpose of the record of the processes in the appeal, see the Agbahomovo v. Eduyegbe (1999) 2 SCNJ, 94 @ 102, (1999) 3 NWLR (594) 170 @ 181-3; Agbaisi v. Ebikorefe (1997) 4 NWLR (502) 630, what defines the grounds of the appeal and the issues to be determined by the Court, is the Amended Notice of Appeal filed on the 17th March, 2017 and not the Notice of Appeal that was amended on 17th February, 2016. See Afribank Plc v. Akwara (2006) ALLFWLR (304) 401; Agbahamovo v. Eduyegbe (supra). Reference to a ground of the appeal from which an issue for determination is distilled, should and must be to a or grounds of appeal contained on the Amended Notice of Appeal filed on the 17th March, 2017 and not of 17th February, 2016.

Since the ground 2 the Notice of Appeal of 17th February 2016 is the same as Ground 2 of the Amended Notice of Appeal filed on the 17th March, 2017, I am prepared to regard the reference to the ground on the Notice of Appeal of 17th February, 2016 as an oversight, inadvertence or a genuine mistake by Counsel.

Ground 2 of the Amended Notice of Appeal is as follows: –

The learned Judge was wrong in fact and in law when he held that the Appellant’s software licence agreement with Standard Bank of South Africa was illegal, null and void because NOTAP has refused to approve the said agreement.

Particulars

1.Contrary to the learned Judge’s finding, the software licence agreement between the Appellant and Standard Bank of South Africa was indeed approved and registered by NOTAP and a certificate of registration was issued to the Appellant.

In the Footnote 15 on page 12 of the Amended Appellant’s brief, it is indicated that the decision against which the ground was filed is at page 1393 of Volume (iv) of the Record of Appeal. The relevant part of the page is thus: –

“It is true that must be remembered that it is the same technology that they sought to export to South Africa that was not approved that they now wish to import back to Nigeria. It is rightly submitted with that since the 2nd Defendant has refused to approve the export the importation cannot be valid in law. The said agreement is thus illegal null and void. Furthermore the 2nd Defendant has even also refused to approve the said importation. This was clearly stated in paragraph 3 (ii) of Exhibit E above and Exhibit C0 1.”

Although there is no specific reference to the technology agreement which was said not to have been approved for importation by the 2nd Respondent, the ground challenges the decision by the lower Court above and for that reason, it is not correct to say the ground and the Issue ‘b’ of the Appellant do not arise from the judgement by the High Court. Both the ground and the issue are derivable from the above decision by the lower Court and valid and competent for consideration in the appeal on the authority of Oba v. Egberongbe (supra) relied on in the 1st Respondent’s argument of the issue. In consequence, the arguments by the 1st Respondent on the issue are not sustainable in law and the issue is resolved against the 1st Respondent.

In the result, for want of merit, the grounds as well as the issues canvassed by the 1st Respondent on the preliminary objection to the hearing of the appeal are dismissed.

With the preliminary objection out of the way, the issues submitted for decision in the appeal now fall for determination. I should say, as a foundation, that for representing the precise and concise complaints by the Appellant against the judgement of the lower Court, I would consider the issues submitted by the Appellant in the determination of the merit of the appeal.

Issue One (1):

Whether the NOTAP Act 1979 applies to agreements for the export of technology from Nigeria to a foreign country.

Appellant’s Submissions:

It is the submission of the Learned SAN for the Appellant that the lower Court was wrong to have decided that the NOTAP Act, 1979 applies to both import and export of technology and that failure to obtain NOTAP registration renders an agreement for export of technology from Nigeria illegal, null and void. According to him, the lower Court was not asked to consider whether a technology export was registrable or the effect of non-registration as the questions submitted to it for answers on the Appellant’s Summons, do not include those answered by the decision. It is submitted that the object of the NOTAP Act, 1979 is the regulation of the terms on which foreign technology is transferred into Nigeria and to protect the Nigerian public from exploitation by owners of foreign technology who are often in a superior bargaining position vis-a-vis Nigerians. Further, that the Act is also concerned with preventing the dumping of obsolete or inappropriate foreign technology in Nigeria or use of contracts for the transfer of such technology to siphon our limited foreign reserves in the payment for such technologies against the background of the small proportion of global technological rights held in Nigeria and the absence of a satisfactory international process for the equitable transfer of foreign technology into the Country.

The name and title of the NOTAP Act, 1979 were referred to in support of the submission and it is maintained that its focus is on importation into, rather than export of technology out of Nigeria. Sections 4, 5, 6, 7 and 8 of the Act were referred to and it is contended that none of them is relevant to the export of Nigerian technology nor terms of such export and the Act does not prohibit a contract for the export, the export or prescribe any consequence for the export of Nigerian technology abroad without registration by the 2nd Respondent.

In further argument, it is said that if export of Nigerian technology were the concern of the Act, it would make provisions to regulate the terms on which the export was to be made and receipt of money in Nigeria for export rather than the payment of money to the credit of a person outside Nigeria. The lower Court was said not to have cited any provision of the Act for the decision that there was no difference between the export overseas of Nigerian technology and the import of foreign technology into the country, but appears to have been influenced in the conclusion by the fact that the Appellant submitted its sale, purchase and assignment agreement of 3rd July, 2013 for the sale of software to its parent company (SBSA) and that the 2nd Respondent had advised it to licence the application instead of outright sale, thereby refusing to approve it.

Lastly, the learned Silk submits that the decision by the Appellant to submit the contract to the 2nd Respondent is irrelevant to the question whether it is registrable under the Act and the consequence of non-registration is as a person cannot expand or narrow down the scope of a statute by its own conduct or acquiescence. The Court is urged to resolve the issue in the Appellant’s favour.

1st Respondent’s Submissions:

The relevant submissions by the learned Counsel who settled the 1st Respondent’s brief; Olujare Ogunnaike, Esq., on the Issue are that in the case of Beecham Group Ltd. v. Essdee Food Products Nig. Ltd (1985) 3 NWLR (II) 112 @ 116 relied on by the Appellant, the issue of the effect of non-registration under the NOTAP Decree did not come up for determination and that the purchase and Assignment Agreement in the Appellant’s case is not in respect of a physical object capable of being shipped, but a source code which does not need any physical movement or transportation.

According to Counsel, the agreement gives SBSA the patent right by an outright sale of the source of the code and at the same time, repurchasing and importing the source code by payment of licence/franchise management fees which the Appellant agrees, have been accruing for the benefit of SBSA. The effect, Counsel said, is that both the export and import of the source code take place at the same time by the virtue of the agreement was presented to the 2nd Respondent for approval and registration, which was to lead to the signing of the agreement but which had already taken place before the approval/registration, thereby showing the malafide intention to circumvent the 2nd Respondent and the provisions of Section 7 of the NOTAP Act.

It is the further contention of Counsel that the refusal of the 2nd Respondent to register the agreement makes it unenforceable in law and that the Affiliate Software Agreement said to have been approved for three (3) years; 2012-2015, by the 2nd Respondent is irrelevant to the application made by the Appellant on 3rd July, 2013 which was unambiguously rejected by the 2nd Respondent, resulting in the inability of the Appellant to transfer any sum to SBSA, but continued to accrue even with the rejection by the 2nd Respondent as shown at pages 18, 304-310 and 1305-1309 of the Record of Appeal. Also, that the rejection to register the Agreement of 3rd July, 2013 by the 2nd Respondent and the regulatory decision taken by the 1st Respondent thereon, made it compulsory for the Appellant to have excluded obligations or provisioning from its financial statements on it, but it failed to do so.

In addition, it is the submission of learned Counsel that the argument by the Appellant that since no sanction was provided for in the NOTAP Act, such contract cannot be said to be illegal, cannot stand in the face of the Supreme Court decision in the case of Adesanoye v. Adewole (2006) 14 NWLR (1000) 242 @ 269, set out in the brief and which is said to be on all fours with the Appellant’s case in so far as it deals with the effect of non-registration of an instrument that ought to be registered by the provision of a statute. The lower Court is said to be right not to give effect to the Sale, Purchase and Assignment Agreement forwarded to the 2nd Respondent on 3rd July, 2013 which was not approved/registered and that the academic views presented by the Appellant on the effect of non-registration of a registrable agreement under the NOTAP Act, are irrelevant in the circumstances of the case.

2nd Respondent’s Submissions:

It is submitted that the NOTAP Act, 1979 does not distinguish between payments made in local or foreign currency as it simply says ?NO PAYMENT? which means that there must be no payment at all and that no words can be imported into the provision o a statute, which are not there.

Section 7 of the NOTAP Act, 1979 was set out and the Court is urged to uphold the decision by the lower Court that there is no difference between the export and import of technology. Cases, including Onasile v. Sani (1962) NSCC, 196 @ 197; Olaniyan v. Oyewole (2008) 5 NWLR (1079) 114 @ 138; A. G., Lagos State v. Eko Hotel Ltd (2006) ALL FWLR (342) 1398 as well as Christ Anyanwu on Basic Principles of Nigerian Legal System, pages 109-110, were cited on the principles of interpretation of statutes. Relying on Section 22 of the NOTAP act, it is submitted by learned Counsel that the non-registration of any registrable contract or agreement under the Act, does not only prevent payment or remittance of money to any person outside Nigeria in respect of the unregistered agreement, but renders the agreement unenforceable among the parties to the said agreement or contract in Nigeria.

Learned Counsel argues further that Section 4(d) is subject to Section 7 of NOTAP inspite of the fact that the export of technology abroad is not mentioned in Section 4(d) by interpretation which avoids absurdity and contradiction that would make the statute impossible to apply. Univ. of Ibadan v. Ademolekun (1967) 1 ALL MLR 213 and Awe v. Alabi (1970) 2 ALL NLR, 16 were cited on the discretion of a court in interpretation of statutes and it is said that the lower Court’s interpretation of Section 7 of the NOTAP Act was to avoid absurdity and contradiction, citing Sections 4, 6 and 9 of the Act.

The Court is urged to hold that the NOTAP Act, 1979 applies to agreements for the export of technology from Nigeria to a foreign country.

In the Appellant’s Reply brief to the 1st Respondent’s Amended brief, it argued that the submission of agreement that were already executed to the 2nd Respondent is irrelevant since the penal fee for late registration was paid and that since the Appellant had existing obligation to pay franchise and management fees based on agreements, the Appellant was obliged under International Financial Reporting Standard towards settlement of its liability for consumed services.

That this was not in breach of any extant Nigerian Statute or applicable accounting standards and that the case of Adesanoye may be relevant where a statute does not prescribe a consequence of contravention of its provision which Section 7 of NOTAP has provided for.

In the Appellant’s Reply brief to the 2nd Respondent’s Amended brief, it is maintained that the NOTAP Act, 1979 applies to the import of technology into Nigeria only and not to export from the country.

Resolution of Issue:

The issue is one which asks a seemingly simple and straight forward question of whether the NOTAP Act, 1979 applies to agreement for export of technology from Nigeria to a foreign country. This calls for the interpretation of the Act as a whole in order to find out the primary and secondary objectives the legislature intended to achieve and the purpose for which it was enacted.

In the case of Cotecna Int. Ltd. v. Churchgate Nig. Ltd (2010) 18 NWLR (1225) 246 it was held by Supreme Court in lead judgement by Galadima, JSC, that: –

“The fundamental principle of interpretation of a statue is that every statute is to be expounded to its manifest and expressed intention. Where the words of a statute are clearly expressed, the Court is duty bound to give the words their literal meaning.”

The apex Court, in Odutola Holdings Ltd v. Ladejobi (2006) ALLFWLR (322) 1393, per Ejiwunmi, JSC had said that: –

“It is undoubtedly good law that in order to interprete an Act and/or a Section of an Act, it is necessary to read the entire provisions together in order to discover the intention of the legislator in enacting the said provisions of the Act or Section of it.”

The primary purpose and object of interpretation of statutes by a Court is therefore to discover or find out, from the words used or employed therein, the real intention of the legislature in making the provisions of the statute and the purpose it sets out to achieve thereby. It is said that the intention of the legislature in or for enacting a statute and the purpose for which the provisions are made, lie in and can best be discovered by or through the express words and language used in the provisions of the statute, in the con in which they were employed or used. Words in a statute must be read and interpreted without presumptuous intention, but generally, constructed or interpreted according to their ordinary and plain meanings which best convey the real intention of the legislature in enacting the statute. See, generally on duty of the Court in interpretation of statute, Eze v. FRN (1987) 1 SCNJ, 76, Ojokolobo v. Alamu (1987) 7 SCNJ, 98, Ansaldo Nigeria Limited v. N.P.F.M.B. (1991) 2 NWLR (174) 392, Idehen v. Idehen (1991) 6 NWLR (198) 382, Amadi v. NNPC (2000) FWLR (2009) 1521, Ajuebor v. A.G., Edo State (2001) FWLR (173) 11, Ndoma-Egba v. Chukwuogor (2004) ALL FWLR (203) 2043, 2062, (2004) ALLFWLR (217) 735 @ 754-5.

In the attempt to discover the intention of the legislature in enacting a statute, the law allows the Court to look at and take into account or consideration, the preamble or recitals which contains the concise purpose behind the provisions of the statute as well as the marginal notes which may provide the purport of specific provisions thereof. See Uwaifo v. A.G., Bendel State (1982) 7 SC, 24 @ 187, Adewunmi v. A.G., Ondo State (1996) 8 NWLR (464) 73. Proceeding in the premises of the established and recognized principles of law on judicial interpretation of statutes, I would look at the NOTAP ACT, 1979 and its relevant provisions that call for interpretation under the issue.

The short heading or title of the Act, assigned to it in Section 23, which is also the last Section of the Act) is ‘National Office for Technology Acquisition and Promotion Act.’

The title clearly shows that what the Act intended and in law did; in Section 1(1), was to establish the 2nd Respondent in this appeal for the express purpose for technology acquisition and promotion in Nigeria and assigned the functions set out in Section 4 to it. The title, establishment and the functions, all expressly stated and provided for by the Act, show plainly, the intention of the legislature in enacting the statute and the purpose for which it was enacted; technology acquisition and promotion in Nigeria. The provisions of Section 4 of the Act put the position beyond argument by setting out the functions of the 2nd Respondent. They are as follows: –

4. Functions of the National Office

Subject to Section 2(1) of this Act, the National Office shall carry out the following functions-

(a) The encouragement of a more efficient process for the identification and selection of foreign technology;

(b) The development of the negotiation skills of Nigerians with a view to ensuring the acquirement of the best contractual terms and conditions by Nigerian parties entering into any contract or agreement for the transfer of foreign technology;

(d) The registration of all contracts or agreements having effect in Nigeria on the date of the coming into force of this Act, and of all contracts and agreements hereafter entered into, for the transfer of foreign technology to Nigerian parties; and without prejudice to the generality of the foregoing, every such contract or agreement shall be so registrable if its purpose or intent is, in the opinion of the National Office, wholly or partially for or in connection with any of the following purpose, that is to say-

(i) the use of trademark;

(ii) the right to use patented inventions;

(iii) the supply of technical expertise in the form of the preparation of plans, diagrams, operating manuals or any other form of technical assistance of any description whatsoever;

(iv) the supply of basic or detailed engineering;

(v) the supply of machinery and plant; and

(vi) the provision of operating staff or managerial assistance and the training of personnel; and

(e) The monitoring, on a continuous basis, of the execution of any contract or agreement registered pursuant to this Act.?

These provisions are in very plain clear and unambiguous words and legislative language such that they do not require any interpretation, but ascription of their ordinary, grammatical and natural meanings without any glosses or interpolations by a Court. See Kalu v. Odili (1992) 5 NWLR (240) 130 @ 193-4; Ibrahim v. Ojomo (2004) 1 SC (Pt. II) 136; CCCT & C.S Limited v. Ekpo (2008) 6 NWLR (1083) 362; Uwazurike v. A.G., Federation (2007) 2 SC, 169, (2007) 8 NWLR (1035) 1; Nigeria Army v. Dodo (2012) 18 NWLR (1331) 151; Buhari v. Yabo (2018) 9 NWLR (1623) 197 @ 210, Abubakar v. Nasamu (2012) LPELR-7826 (SC).

By the provisions in paragraphs a, b and c of Section 4 above, the primary functions of the 2nd Respondent are to: –

(a) Encourage a more efficient process for identification and selection of foreign technology for the purpose of acquisition by importation in to Nigeria;

(b) continuous development of negotiating skills of Nigerians with a view to ensuring that they negotiate, get or acquire the best contractual terms and conditions in contracts or agreements for the transfer of foreign technology into Nigeria; and

(c) provide a more efficient process or practice and procedure for the adoption of foreign technology imported in to Nigeria.

These functions undoubtedly are and relate to all, for the purpose of foreign technology to be or imported into Nigeria or importation of foreign technology into Nigeria, as expressly provided therein.

Although the Act does not define the words ‘foreign technology’, there can be no dispute that they factually mean technology which is not Nigerian, not indigenous to Nigeria, not of Nigerian origin, not invented by Nigerians in Nigeria, but technology invented outside the Nigerian state, invented in another country independent of Nigeria or of origin which is not Nigerian.

The word ‘foreign’ is defined at page 719 of the Black’s Law Dictionary, 9th Edition, as: –

1. of or relating to another country.

It is because the foreign technology stated in the paragraphs is one of origin in another country outside Nigeria that it is called in paragraph c; ‘imported technology’.

Again, the Act does not define the words ‘imported technology’ but it does not mean anything else but technology brought into Nigeria from another country outside Nigeria; from a foreign country. “Importation” is defined at paragraph 824 of the Black’s Law Dictionary, 9th Edition as:

‘The bringing of goods into a country from another country.’

From their plain, grammatical and natural meanings, the words used or employed by the legislature in paragraphs a, b and c of Section 4, the clear and unambiguous intention of the Legislature is to provide the 2nd Respondent functions set out therein in respect of, connected with and related to the importation of foreign technology into Nigeria.

On its part, paragraph d. of Section 4 primarily, provides for the registration by the 2nd Respondent of all contracts or agreements entered into by parties for the transfer of foreign technology to Nigerian parties, if such contracts or agreements are wholly or partially for or in connection with, any of the purposes set out in items (i) – (iv) thereunder.

Again plainly, paragraph d is in respect of, connected with or related to contracts or agreements entered into by parties for the transfer of foreign technology to Nigerian parties in Nigeria. It is provided for contracts or agreements for the importation of foreign technology into Nigeria for purpose, wholly or partially, for or connected with any of the purposes enumerated.

Paragraph ‘e’ provides that the 2nd Respondent shall on a continuous basis; monitor the execution by the parties, of any contract or agreement registered pursuant the provisions in paragraph ‘d’.

Viewed wholistically, the title, establishment and functions assigned under Section 4 of the Act, leave no doubt that the purpose for which the 2nd Respondent was established, is to regulate and monitor the execution of contracts or agreements entered into by parties, for the importation into Nigeria and acquisition of foreign technology in order to protect the best interests of Nigeria and Nigerians in the transfer from outside the country.

I have calmly perused the other Sections of the 23 Sections of the NOTAP Act,1979 in addition to Section 4 which I have dealt with above, but did not see any one of them which talks about or even makes the slightest reference to the transfer of indigenous, local or Nigerian technology by Nigerians to another country outside Nigeria or agreements or contracts entered into by Nigerian parties non-Nigerians or foreign parties outside Nigeria. Put shortly, none of the provisions of the Act deals or even makes any reference, howsoever, to the exportation of Nigerian technology to another country outside Nigeria or a foreign country.

Since there is no such provision in the Act, the law is that a Court lacks the requisite judicial power and authority in the guise or pre of adopting any of the established and accepted rules of interpretation of statutes to read into a statute what is not there or read out what is clearly provided for therein, import or export words or provisions that are not in or out of the statute.

See Sobamowo v. Elemuren (2008) LPELR-5166 (CA); Ekunola v. CBN (2006) 14 NWLR (1000) 292; Owoniboys Technical Service Limited v. UBN Limited (2003) 15 NWLR (844) 545; Johnson v. Mobil Product Nigeria United (2010) NWLR (1194) 462; N.S.I.T.F.M.S. v. Klifco Nigeria Limited (2010) 13 NWLR (1211) 307. The law is also trite that the duty of a Court is to interprete the law as it is and not as it ought to be. Amaechi v. INEC (2008) 5 NWLR (1080) 227 @ 437; A.G. Federation v. A.G., Lagos State (2013) LPELR-2097 (SC); Ogunlaji v. A.G., Rivers State (1997) 6 NWLR (508) 209, Ojokolobo v. Alamu (supra).

In addition, the specific mention of ‘foreign technology’ ‘imported technology’ in Section 4 paragraphs a, b, c and d. of the Act clearly excludes ‘local, indigenous or Nigeria technology’ and ‘exported technology’ within the contemplation and purview of the provisions. The principle of law is ‘expressio unis exclusio ulterius’ in latin, which means that by rules of interpretation, the express mention of a particular thing, excludes that which is not so mentioned on the basis that what is not stated in a statute, is deemed excluded. See Ayowe v. Obasanjo (2006) ALLFWLR (334) 1967 @ 1979; Ojukwu v. Obasanjo (2004) 12 NWLR (886) 169, Obi v. INEC (2007) 11 NWLR (1046) 436.

The above apart, since the words of Section 4 are very clear, plain and unambiguous and are to be ascribed their ordinary, grammatical and natural meanings, the interpretative duty and function of a Court would not arise to be an avenue for the use or employment of any of the known principles of interpretation of statutes for the purposes of the application of the provisions. As was stated by the apex Court in the case of Uwazurike v. A.G., Federation (supra); per Ogbuagu, JSC: –

“It needs be stressed at this stage that where the language of a statute is plain, clear and unambiguous, the task of interpretation can hardly arise. It is therefore the duty of the Courts in such a situation, to give the words their ordinary, natural and grammatical construction..”

In the later case of Abubakar v. Nasamu (2012) LPELR-7826 (SC), Onnoghen JSC (now CJN) put the position in the lead judgement, as follows: –

“Therefore where words used in the constitutional provisions are clear and unambiguous they must be given their ordinary plain meaning so as to avoid reading into the provisions meanings not intended by the law makers. The above clearly means that where the words used in the provision are clear and unambiguous, the question of interpretation becomes a non-issue as there is nothing to be interpreted or constructed as the Court is duty bound to assign the words used in the provisions their ordinary plain meanings.”

In the absence of the need for and duty of the lower Court to interprete the plain, clear and unambiguous words of Section 4 of the Act, the lower Court was in error to have imported into the words what they do not contain or what is clearly not mentioned, stated or even envisaged and contemplated by their ordinary, grammatical and natural meanings. If the legislature had intended to include the export or exportation of local, indigenous or Nigerian technology from Nigeria to a foreign country outside of Nigeria, in the provisions of Section 4 or any other Sections of the NOTAP Act, it would have specifically and expressly mentioned or stated so in the provisions of the Act.

The fact that no such mention was made or stated in the provisions and the entire provisions of the Act leaves no doubt that it was not the intention of the legislature to have included the application of the provisions of the Section or the Act to the export, exportation or transfer of Nigerian indigenous technology from Nigeria to a foreign country outside Nigeria or to any agreements or contracts in respect of such transactions by Nigerians and other parties.

In the result, for the aforenamed reasons, the Lower Court was not right and it erred in law to have held that the provisions of Section 4(d) or any other provisions of the NOTAP Act, 1979, apply to agreements or contracts entered into by Nigerians and other parties for the export, exportation or transfer of Nigerian indigenous technology from Nigeria to a foreign country outside Nigeria.

I find merits in the arguments of the learned silk for the Appellant on the Issue 1 which is resolved in favour of the Appellant.

Issue b. Two (2)

Whether the Appellant’s affiliate software licence agreement of 2 September 2013 was approved/registered by NOTAP.

Appellant’s Submissions:

It is said that the issue was neither raised in the Appellant?s summons nor the proceedings before the Lower Court but it unilaterally decided it to the effect that the Appellant?s software licence agreement with SBCA was illegal, null and void on the ground that the 2nd Respondent refused to approve it.

According to the learned SAN for the Appellant, notwithstanding the advice by the 2nd Respondent that the Appellant should licence rather than sell the customized Finacle, it still went ahead and approved a three (3) years licence back to the Appellant of the Finacle, following the outright sale to SBSA. Page 1295 of Vol. IV of the Record of Appeal was referred to for the approval and registration in question and it is argued that the Lower Court misunderstood the evidence before it when it decided that the software licence agreement was not approved by the 2nd Respondent, relying on Appellant’s Exhibit CO1 which is concerned with a separate application for the registration of franchise and management agreements made on 17th May, 2012 which 2nd Respondent refused to approve. Pages 1294-5 of the Record of Appeal were referred to and it is maintained that the evidence before the Lower Court shows that the affiliate software licence agreement was in fact, approved and registered for three (3) years by the 2nd Respondent. For that reason the Court is urged to resolve the issue in favour of the Appellant.

1st Respondent’s Submissions:

The relevant arguments for the 1st Respondent on the issue have been set out under its arguments of issue 1 above and as reminder, are that the Affiliate Agreement is completely irrelevant to tthe application made by the Appellant on 3rd July, 2013 which was rejected by the 2nd Respondent, citing pages 304 – 310 and 1305-9 of the Record of Appeal thereby rendering it unenforceable. See Paragraphs 5.15 and 5.16 of the 1st Respondent’s Amended brief which has no pagination.

2nd Respondent Submissions: –

It is submitted that the Appellant misconstrued the part of the Lower Court judgement on its affiliate software agreement because the Court did not state that the agreement was approved or not approved but only referred Exhibit E which contains list of agreements presented for registration/approval and Exhibit CO1 which is a letter from 2nd Respondent that it no longer approves Management and Technical Support Services Agreement.

Page 1393 of Vol. IV of the Record of Appeal was referred to and it is argued that the Lower Court is right that since the 2nd Respondent did not approve the export, the importation cannot be valid in law, hence the agreement is illegal, null and void. The Court is urged to discountenance the submission of the Appellant that the Lower Court misunderstood the evidence placed before it and uphold the 2nd Respondent’s submissions on the issue.

In the Appellant’s Reply to the 2nd Respondent’s Amended brief, the ‘export’ and ‘import’ agreements were referred at pages 1295, 1305 and 1307 of Vol. IV of the Record of Appeal, respectively; as:-

(a) Sale, purchase and assignment agreement in the application of 3rd July, 2013 and

(b) The affiliate software licence agreement in the application dated 2nd September, 2013 which was approved by 2nd Respondent ‘after much correspondence.’

Resolution of Issue:

The issue can simply be answered by reference to and consideration of the pages of the Record of Appeal at which the alleged approval of the agreement by the 2nd Respondent is contained. A copy of the application for the registration/approval of the affiliate software licence agreement of 2nd September, 2013 submitted by the Appellant to the 2nd Respondent is said to be at page 1307 of Vol. IV of the Record of Appeal. It is expedient to call in the application for identification purpose and full appreciation of its contents. Here it is:-

‘2nd September, 2013

The Director General,

National Office for Technology,

Acquisition and Promotion (NOTAP),

4, Blantyre Street,

Wuse 2, Abuja.

Dear, Sir,

APPLICATION FOR REGISTRATION OF THE AFFILIATE SOFTWARE LICENSE AGREEMEMENT BETWEEN STANDARD BANK OF SOUTH AFRICA LIMITED AND STANBIC IBTC BANK PLC.

We are Solicitors to Stanbic IBTC Bank Plc. hereinafter referred to as ‘our Client.’

We hereby forward this Agreement on behalf of our Client for registration.

The following documents are hereby attached.

1. Stanbic IBTC Plc Cheque No. 00074541 dated 20th August, 2013 for the sum of N50,000.00 (Fifty Thousand Naira) only drawn in favour of NOTAP being Presentation fee for the Agreement;

2. Stanbic IBTC Bank Plc Cheque No. 00074543 dated 20th August, 2013 for the sum of N100,000.00 (One Hundred Thousand Naira) only drawn in favour of NOTAP being Penalty fee for late submission of the Agreement;

3. Completed NOTAP Application Form;

4. Two completed Questionnaire;

5. Two copies of the Affiliate Software Licence Agreement;

6. Profile of the Licence (the Standard Bank of South Africa Limited);

7. Stanbic IBTC Bank Plc Tax Identification Number;

8. Copy of Stanbic IBTC Bank Plc’s Tax Clearance Certificate;

9. Copy of the Memorandum and Articles of Association of Stanbic IBTC Bank Plc;

10. Stanbic IBTC Bank Plc’s Audited Accounts for 2010, 2011 and 2012.

Kindly acknowledge receipt.

We look forward to the approval of the said Agreement.

Thanks.

Yours faithfully

Ehinwendy Uruakpa

Then the approval by the 2nd Respondent of the application; ‘after much correspondence’, is said to be at page 1295 of the same volume iv of the Record of Appeal. For being concise, it also deserves to be invited for an accurate and complete picture of the approval and it is thus: –

“On September, 2, 2013 Stanbic IBTC Bank Plc submitted an Affiliate Software Licence Agreement between Stanbic IBTC Bank Plc and The Standard Bank of Africa with an annual fee of USD 3, 441,428.9 for ten (10) years totaling USD 34,414,289.00. However, after much correspondence with the company, the sum of USD 10,324,286.70 only was approved for three (3) years (July 1, 2012 – May 31, 2015).”

This approval is not only concise, but also precise on what was approved and the terms of the approval of the above application submitted by the Appellant to the 2nd Respondent on the 2nd September, 2013.

As manifestly stated in the approval, even though the application was for ten (10) years with an annual fee of USD 3, 444,428.9.

However, after much correspondence with the company, the sum of USD10, 324,286.70 only was approved for three (3) years (July 1, 2012-May 31st 2015).

Both the application submitted by the Appellant to the 2nd Respondent for approval of an Affiliate Software Licence Agreement between the Appellant and SBSA, as well as the express terms of the approval given by the 2nd Respondent to the application and the Affiliate Software Licence Agreement, speak loudly and unequivocally for themselves to, off-handedly, ward-off any arguments on them.

Apparently, the question asked in the issue, has been decisively and completely answered by the 2nd Respondent in the above statement of approval which was contained in its letter dated 15th September, 2015 addressed to Ex. Secretary/Chief Ex. Officer of the 1st Respondent.

It would merely and simply be uneccessary verbosity and and wastage of verbiage to say anything else beyond or in addition to the straight forward, simple and accurate language and tenor of the approval above, in answer to the issue. Since I cannot afford imprudence, the inevitable, obvious and unavoidable answer to and verdict on the Issue is that the Appellant’s affiliate software licence agreement in respect of the application of 2nd September, 2013 was approved/registered by NOTAP (2ND Respondent).

However, the decision by the lower Court which is the fulcrum of the issue is in the terms set out earlier in the determination of the 1st Respondent’s preliminary objection to the issue. To refresh the memory, the decision or finding by the Lower Court at page 1393 of Vol. IV of the Record of Appeal is that: –

Furthermore the 2nd Defendant has even also refused to approve the said importation. This was clearly stated in paragraph 3(i) of Exhibit E above and Exhibit CO 1.”

Clearly, learned Counsel for the 2nd Respondent is right when he said that the Lower Court did not, in the above finding, specifically say or state that the Appellant Affiliate Software Licence Agreement submitted to the 2nd Respondent was or was not approved, but simply, that the 2nd Respondent has also refused to approve the importation of the same technology exported by the Appellant without approval, as was stated in paragraph 3(ii) of Exhibit E and Exhibit CO1.

Exhibit E is the Letter dated 15th September, 2015 from the 2nd Respondent to the Executive Secretary/Chief Ex. Officer of the 1st Respondent and in paragraph (iii) referred to by the Lower Court, it says:

(ii) On December 2nd 2008 the Bank submitted two (2) agreements for registration namely:

(a) Technical Know-How Training Services Agreement. It was between Stanbic IBTC Bank Plc and Standard Bank Africa, a division of The Standard Bank of South Africa Limited. The agreement was approved and registered at 1% Gross Income for 3 years (January 1, 2008 – December 31st, 2010) not exceeding N1.9 billion.

(b) Software Licence and Services Agreement. The agreement was between Stanbic IBTC Bank Plc and Standard Bank Africa, a division of The Standard Bank of South Africa Limited. The agreement was approved and registered for two years (January 1st, 2008 – December 31st, 2009) for a technology fee of ZAR 87,229.900.00.

The agreements mentioned above are different from the Affiliate Software Licence Agreement submitted to the 2nd Respondent by the Appellant with the application of 2nd September, 2013 since they were submitted on 2nd December, 2008 and both were approved. These agreements are therefore not relevant to the determination of the issue under consideration. Exhibit CO1 on its part, is a Letter dated 27th August, 2015 from the 2nd Respondent to the Appellant stating that it (2nd Respondent) no longer approves management or technical support services agreements for banks and other financial institutions, among other things.

Again, the Letter has no bearing howsoever, with the issue under consideration and so is irrelevant and of no moment in the determination of the issue.

I am done with Appellant’s issue b (2).

Issue C (3):

What is the effect of the failure to register an agreement that is registrable under the NOTAP Act 1979

Appellant’s Submissions:

After setting out Section 7 of the NOTAP Act, four (4) elements’ of the section are said to be: –

a. No payment shall be made in Nigeria to the credit of any person outside Nigeria.

b. In respect of any payments due under a contract or agreement mentioned in Section 4(d) of the NOTAP Act.

c. By or on the authority of the Federal Ministry of Finance CBN or any licensed Bank in Nigeria.

d. Unless a certificate of registration issued by NOTAP together with a copy of the agreement or contract is presented to the Federal Ministry of Finance, CBN or licensed Bank.

These elements must be present before the Section can be engaged, according to the learned SAN for the Appellant and that for the first of them, the payments must be made in Nigeria to the credit of a person outside Nigeria and so payments made outside Nigeria from foreign banks are not prohibited by the Section. Similarly, payments made in Nigeria to any person in Nigeria are not prohibited and so the Lower Court was wrong to have held that the NOTAP Act does not distinguish between payments made in local or foreign currency. For the second element, it is argued that payments must be in respect of contracts required to be registered by Section 4(d) of the NOTAP Act and payments in respect of agreements that are not required to be registered under the Section, such as technology exports agreement are not affected.

Under the 3rd element, it is contended that the payments regulated by Section 7 are those required to be made by or on the authority of three (3) institutions, viz: any licenced bank in Nigeria, CBN or Federal Ministry of Finance and that payments in Nigeria from other sources, e.g. parallel Markets, are not restricted. According to the learned silk, Section 7 neither prohibit importation of foreign technology into Nigeria nor an agreement to import it into Nigeria, but only prohibits payments and that non-registration of an agreement under Section 4(d) does not abrogate or obliterate contractual obligations of the Nigerian party under an unregistered registrable agreement, although payment cannot be made in Nigeria to the credit of any person outside Nigeria to discharge the obligations.

In further arguments, he said the Section does not prescribe a sanction of prohibiting payment made in Nigeria, which the Appellant did not do and that the Lower Court’s decision that an unregistered agreement is illegal, null and void, relying on Corporate Ideal Ins. Ltd. v. Ajaokuta Steel Company Limited, was wrong because it did not consider the relevant facts in the case before it. Page 362 of Nigeria Law of contract, 2nd Edition by Prof. Sagay, Per Bisbilder Nigeria Limited v. FBN, Limited (2000) 1 NWLR (642) 684 @ 683D-E (sic) and Fasel Services Limited v. NPA (2009) 9 NWLR (1146) 400 were cited in support of the submission and it is maintained that Section 7 of NOTAP Act does not prohibit unregistered agreements or contracts, reliance heavily placed on Beacham GGroup Limited v. Essdee Food Products Nigeria Limited (1985) 3 NWLR (2011) 112 which decision is said to be binding on the Lower Court and this Court and decisive of the issue as it is on all fours with the Appellant’s case.

Reference was made to some works by authors on doing business and foreign investments in Nigeria and it is submitted that the Lower Court should have heeded to the admonition in its judgement that a Court has no power to rewrite a statute so as to suit the purpose of one of the parties, however ill-considered and unwise or to make it conform with its view of sound social or economic policy.

The Court is urged to resolve the issue in Appellant’s favour.

1st Respondent Submissions:-

It is submitted that the issue of the effect to non-registration under the NOIP Decree did not come up for decision in the Beacham Group Limited v. Essdee Foods Products Nigeria Limited (supra) and to be called Beacham case hereafter) and so the statement relied on by the Appellant was an obiter dictum which has no binding force. The statement of Kutigi, J.C.A. at pages 118-9 of the Report of the Beacham case was referred to and it is contended that the position of the 1st Respondent was not solely based on Section 7 of the NOTAP Act, but rather on IAS37 which is premised on accounting principles and standards. In addition, it is submitted that the Appellant submitted the Sale, Purchase and Assignment Agreement to the 2nd Respondent for registration because it knows that the agreement ought to be approved and registered before it could become valid and that the argument by the Appellant that Section 7 of NOTAP Act only prohibited payments and not agreements or importation, is wrong.

Learned counsel submits that the Lower Court was right that the intendment of an Act must be considered in the interpretation of its provisions, especially Acts such as the NOTAP Act which is meant to protect Nigeria from economic exploitation in terms of technology from foreign countries and in following the principles in Alao v. ACB Limited (1998) 3 NWLR (512) 339 and Corporate Ideal Ins. Ltd. v. Ajaokuta Steel Company Limited (supra), to hold that the Sale, Purchase and Assignment between the Appellant and SASB was not in line with the NOTAP Act.

The Court is urged to resolve the issue against the Appellant.

2nd Respondent’s Submissions:

Citing Section 5(2) of the NOTAP Act, it is submitted that the Act provides for the procedure for registration of contracts and agreements with the 2nd Respondent and that failure to comply with the provisions of a statute, nullifies such contract as one cannot contract outside a statute. Also, that where a statute does not provide a sanction for non-compliance with its provisions, the Court may conclude that failure to comply is against the party in default, on the authority of Adesanoye v. Adewole (supra).

In further arguments, counsel said the true intention of Section 7 of NOTAP Act is to prevent a situation where technologies which are beneficial to the country are not shipped out under any guise of business decision of any public entity and that the Appellant is seeking to contract outside the Section, which contract attracts the effect of nullification as laid down in Corporate Ideal Industries Limited v. Ajaokuta Steal Company Limited (supra, to henceforth be called Ajaokuta Steel case). Adesanoye v. Adewale (supra), CDC Nigeria Limited v. SCOA Nigeria Limited (2007) LPELR-870 (SC) 6 NWLR (1030) 300 and Estam Distributors Limited v. Goldring (1957) 2 ALLER 525 @ 533, were referred to.

The Court is urged to hold that failure to register any registrable contract or agreement under the NOTAP Act is a criminal offence and makes same unenforceable between the parties in Nigeria.

In the Appellant’s Amended Reply Brief to the 1st Respondent’s Amended Brief, it is submitted that the statement of Uthman, JCA in the Beacham case was not an obiter and that it was supported by the other Justices and so unanimous, correct and should be followed by the Court. The facts in the cases of Alao v. ACB (supra) and the Ajaokuta Steel case are said to be distinguishable from those in the Appellant?s case and neither is relevant in the appeal. The case of Adesanoye v. Adewole (supra) is said to be relevant where the statute does not prescribe a sanction for non-compliance with its provisions, unlike Section 7 of NOTAP Act that does as was stated in the Beacham case.

In the Appellant’s Reply to the 2nd Respondent’s Amended Brief it is said that Section 5(2) of the NOTAP Act was not an issue at the trial before the Lower Court and that the cases on statutory illegality are all irrelevant.

Resolution Issue c (3)

At the heart of the arguments by the parties on the issue, is Section 7 of the NOTAP Act which provides thus:

‘Subject to Section 8 of this Act, no payment shall be made in Nigeria to the credit of any person outside Nigeria by or on the authority of the Federal Ministry of Finance, the Central Bank of Nigeria or any licensed bank in Nigeria in respect of any payments due under a contract or agreement mentioned in Section 4(d) of this Act is presented by the party or parties concerned together with a copy of the contract or agreement certified by the National Office in that behalf.’

There are two fundamental things to be noted in these provisions, the first of which is that they are very clear, plain and unambiguous in language and words used by legislature in setting out and expressing their tenor and purport. On the authority of the cases cited on the point earlier, and more, the interpretative duty of a Court would not arise in the ascertainment of the true and real intention of the legislature in enacting the provisions, as the only duty of a Court is to ascribe and assign the ordinary, grammatical and natural meanings to the words specifically and deliberately chosen and used by the legislature, which best bring out and say the intention of the law maker and giver.

The second fundamental thing to be noted is that the simple, plain and clear provisions of Section 7 are made ‘subject to Section 8 of this Act.’ In the case of N.D.I.C. (Liquidator of Allied Bank of Nigeria Plc.) v. Okem Ent. Limited (2004) 18 NCSQR, 42 (2004) 10 NWLR (880) 107, Uwaifo, Jsc, relying on Oke v. Oke (1974) 1 ALLNLR (1) 443 @ 450, defined the effect of the use of the phrase ‘subject to’ in a statute. He stated that: –

“It must therefore be understood that ‘subject to’ introduces a condition, a restriction, a limitation, a proviso: it subordinates the provisions of the subject Section to the Section empowered by reference thereto and which is intended to be diminished by the subject Section.”

In the later case of Oloruntoba-Oba v. Abdulraheem (2009) 13 NWLR (1157) 83 the apex Court, per Adekeye, JSC enunciated on the above position that:

“wherever the phrase ‘subject to’ is used in a statute, the intention, purpose and legal effect is to make the provisions of the Section inferior, dependent on, or limited and restricted in application to the Section to which they are made subject to. In other words, the provisions of the latter Section shall govern, control and prevail over the provision of the Section made subject to it. It renders the provision of the subject Section subservient.”

Labiyi v. Anretiola (1992) 8 NWLR (258) 139; Tukur v. Governor, Gongola State (1989) 4 NWLR (117) 517 and FRN v. Osahon (2006) 5 NWLR (973) 261 were referred to by the Learned and Erudite Law Lord for the effect of the phrase.

Since the provisions of Section 7 have been made subject to, inferior and subordinate to Section 8 in application, it is expedient to see what the provisions of the latter Section say and this is it: –

8. Cancellation of registration

(1) Where the director is satisfied that any contract or agreement has, subsequent to the registration thereof, been amended or modified in contravention of the provisions of this Act, he shall give notice in writing to the parties concerned of his intention to cancel the certificate of registration and the provisions of Section 9 of this Act relating to appeals shall apply to any such notice as if it were a notice to reject an application for registration.

(2) Where no appeal is lodged as provided under subsection (1) of this Section, the Director shall, with the approval of the Council, cancel the certificate of the party concerned.

Simply put, the provisions say that where any contract or agreement registered was subsequently or later amended, altered or modified in contravention of or contrary to the provisions of the Act, a notice of intention to cancel the certification of registration shall be issued to the parties concerned and where no appeal was lodged, the certificate of registration of the said contract or agreement, shall be cancelled. The provisions are on the cancellation of a certificate of registration of contracts or agreement, amended, modified or altered after the registration, in contravention of the provisions of the Act. Because we are under this issue not concerned with the situation provided for underSection 8, the provisions of Section 7 are therefore free of the encumbrances of Section 8 for our purpose here.

Turning back to the words and provisions of Section 7, in their ordinary, grammatical and natural meanings in the con of Section 4(d) of the Act, they explicitly say that: –

(a). No payment, in whatever currency, must be made in Nigeria to the credit of any person outside Nigeria, by or on the authority of: –

i. Federal Ministry of Finance,

(ii) Central Bank of Nigeria or

(iii) Any licenced bank, in respect of:

(b) Payments due under all registrable contracts or agreements having effect in Nigeria for the transfer of foreign technology to Nigerian parties, unless –

(c) A certificate of registration of such contracts or agreements issued under the Act is presented by the party or parties concerned together with copies of the contracts or agreements, certified by the 2nd Respondent.

In essence and essential/material particulars, the provisions not only intend to, but provide for conditions to be met by parties to a registrable and registered contract or agreement for the transfer of foreign technology to Nigerian parties, for any payment to be made in Nigeria to the credit of any person outside Nigeria (foreigner or Nigerian) by or on the authority of any of the three (3) institutions named and stipulated therein.

Primarily, the provisions are on and deal with conditions precedent for the payments due on any registered contract or agreement for the transfer of foreign technology to Nigerian parties by or on the authority of institutions named specifically, therein. The provisions do not talk of about or have within reasonable contemplation or purview, the validity or legality of either of ‘any payments due under’ or ‘a contract or agreement mentioned under Section 4(d)’ of the Act. In their pure, unadulterated and plain meanings and proper con, the provisions only seek and mean to regulate payments due on such contracts or agreements by the named public institutions by setting out the conditions to be satisfied by the parties before any payments of financial obligation due under the contracts or agreements were to be made or authorized as prescribed therein.

In this regard, the provisions do not even pretend to impose a general sanction for non-registration of a registrable contract or agreement under Section, but merely say that no payment shall be made or authorized by the named institutions unless a certificate of registration of the contract or agreement in question is presented along with a certified copy of such a contract or agreement. So even if a contract or agreement was in fact registered and a certificate thereof issued in accordance with the provision of Section 6(1) of the Act, unless it presented as required under the provisions of Section 7, no payment for due obligations under the said contract or agreement by the party or parties concerned, shall be made or authorized by the institutions. I am in no doubt that the provisions of Section 7 of the NOTAP Act, do not deal with or provide for the validity, legality or lawfulness of unregistered or non-registration of a registrable contract or agreement under Section 4(d) of the Act or render such a contract or agreement invalid, illegal, null and void.

The Beacham case, in which pronouncement was made on provisions of Section 7 of Decree No. 70 of 1979, which are impair materia with the provisions of Section 7 of the NOTAP Act, supports this position and is a binding or at least a guiding statement in the ascertainment of the real and correct purport and intention of the legislature in the enactment of the provisions.

I dare say that the provisions of Section 7, in their plain and ordinary meanings, do not even render such a contract or agreement unenforceable between the parties since all they do is to prevent performance, settlement or payment of due financial of due financial obligations of the parties thereunder, through and by or on the authority of the public institutions named. A Court cannot; that is, has no judicial power and authority to import into and assign unusual and distorted meanings to words of a statute which are plain, clear and unambiguous on the basis of sentiments in order to attain a supposed objective for the Court or any of the parties. The apex Court has succinctly and poignantly put the position of the law in, the case of .. when it stated that:

“The duty of the Court is to interpret the words contained in the statute and not to go outside the words in search of an interpretation which is convenient to the Court or to the parties or one of the parties. Even where the provisions of a statute is hard in the sense that they will do some inconvenience to the parties, the Court is bound to interpret the provisions once they are clear unambiguous. It is not the duty of the Court to remove the chaff from the grain in the process of interpretation of a statute to arrive at favourable terms for the parties outside the contemplation of the lawmaker. That will be tantamount to travelling outside the statute on a voyage of discovery. This Court cannot embark upon such a journey.

The primary function of the Court is to search for the intention of the lawmaker in the interpretation of a statute. Where a statute is clear and unambiguous, as it is in this case, the Court in the exercise of its interpretative jurisdiction must stop where the statute stops. In other words, a Court of has no jurisdiction to rewrite a statute to suit the purpose of one of the parties or both parties. The moment a Court of law intends to rewrite a statute or really rewrites a statute, the intention of the lawmaker is thrown overboard and the Court changes place with the lawmaker. In view of the fact that that will be against the doctrine of separation of powers entrenched in the Constitution, a Court of law will not embark on such unconstitutional act. In Adewunmi v. A.G. Ekiti State (2002) 2 NWLR (Pt. 751) 474.

Wall, J.S.C. said at page 512: . Under our jurisprudence, the presumption is that ill-considered or unwise legislation will be corrected through democratic process. A Court is not permitted to distort a statute’s meaning in order to make it conform with the judge’s own views of sound policy.”

With respect due to the Lower Court, it did not heed the above exhortation by the apex Court on its primary duty of ascribing and assigning the plain, clear and unambiguous words of Section 7 of the NOTAP Act, when in the name of purposeful judicial creativity and meaningful interpretation, it created and imported into the words meanings which re-write them in order to conform with its view of sound social and economic policy, when it held that the provisions render non-registered registrable contracts or agreements, illegal, null, void and unenforceable, merely on ground of the non-registration. That decision is not sustainable in law, is not correct and so cannot stand.

I am a proponent of judicial activism in interpretation and application of statutes, but my firm belief is that it must be within the confines and limits of the statutes or laws which the Courts can only expound but not expand or balloon out of their clear and plain con or sphere which does not admit of any ambiguity.

Since the plain provisions of Section 7 of NOTAP Act do not prohibit contracts or agreements for the transfer of foreign technology to Nigerian parties but only say that such contracts or agreements are registrable and where not so registered, no payment shall be made in Nigeria by or on the authority of the public institutions named therein, for any due financial obligations arising therefrom, it would clearly be stepping out of the limits of the provisions to hold that such contracts or agreements are illegal, null and void or even unenforceable on the ground of the non-registration. The provisions are different from the provisions of statutes or subsidiary Legislations/Regulations/Rules which expressly or by necessary implication, prohibit certain actions or omission, as in the cases cited and relied on by the Lower Court and the Respondents on the point. The law remains extant that parties cannot contract out express provisions of a statute or be allowed to benefit from their flagrant disobedience or non-compliance with provisions of a statute as demonstrated in those cases. That is not the situation under the provisions of Section 7 since the Appellant did not contract out or seek to benefit from non-compliance with or disobedience to the provisions of the section.

In addition to the above, I find no other provision of the NOTAP Act which deals with or provides that non-registration of registrable contract or agreement under the Act renders it illegal, null and void in law. As a result, all the cases on the effect of non-compliance with or disobedience to statutory provisions are not applicable to non-registration of a registrable contract or agreement under the NOTAP Act, for it to be declared illegal, null and void. To have such contracts or agreements to be declared illegal, null and void, the provisions of Section 7 or other Sections of the NOTAP Act need to be amended, altered or modified by the lawmaker, the legislature to provide for mandatory registration of the contracts or agreements and render them unenforceable between the parties, where not so registered.

The mere fact the Act in Section 4(d) provides as one of the functions of the 2nd Respondent, registration of such contracts or agreements having effect in Nigeria that such contracts are registrable, does not mean that the registration of such contracts or agreements is mandatory or that failure to or non-registration would, ipso facto, render them illegal, null and void. The provisions in Section 4(d) cannot be expanded, extended or enlarged beyond their literal, ordinary and plain meanings since they are clear, unambiguous and plain, in both words and language.

In the above premises, my answer to the Appellant?s issue C (3) is that the effect of failure to register an agreement that is registrable under the NOTAP Act, 1979, is that no payment shall be made in Nigeria, by or on the authority of the Federal Ministry of Finance, Central Bank of Nigeria or any licensed bank in Nigeria, to the credit of any person outside Nigeria, for payment due under the contract or agreement.

The effect of failure to register or non-registration of a registrable contract or agreement under the NOTAP Act, 1979 is not to render such contract or agreement illegal, null and void, but to prevent any payment in Nigeria, of the financial obligations of the parties thereunder to the credit of any person outside Nigeria, by the named institutions in the provisions of Section 7 thereof. In the final result, I find merit in this appeal and allow it.

Accordingly, the part of the judgement of the Lower Court that the export of Nigerian technology from Nigeria to a foreign country outside Nigeria is registrable and requires registration under the provisions of NOTAP Act, 1979 and that agreements or contracts for such export are illegal, null and void for failure to obtain approval from 2nd Respondent is hereby set aside. Similarly, the part of the Lower Court’s judgment that failure to register a registrable contract or agreement under the NOTAP Act renders such contract or agreement illegal, null, void and unenforceable, is also set aside. Consequently, it is declared that: –

(i) The failure to register a registrable contract or agreement under the NOTAP Act, 1979, is not a criminal offence.

(ii) The failure to register a registrable contract or agreement under the NOTAP Act, 1979 does not render the contract or agreement illegal, null and void or unenforceable, and;

(iii) That the effect of non-registration of a registrable contract or agreement under the NOTAP Act, 1979 is to prevent payment of money in Nigeria to the credit of any person outside Nigeria, in respect of financial obligations of the parties under the contract or agreement, by or on the Authority of the Federal Ministry of Finance, Central Bank of Nigeria or any bank licenced in Nigeria, as plainly and clearly stated in Section 7 thereof.

The appeal succeeds and judgement is entered in the above terms. Parties to bear their respective costs of prosecuting the appeal.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the exhaustive judgment prepared by my learned brother, Mohammed Lawal Garba, J.C.A., (Hon. P.J.) which I was opportuned to read in advance.

JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother MOHAMMED LAWAL GARBA JCA afforded me the opportunity of reading in draft before today the lead judgment just delivered and I agree with the reasoning and conclusion contained therein and adopt the judgment as mine with nothing further to add.

Appearances:

Fidelis Oditah, SAN with him, A. Adepoju, J. Agu and Z. A. Olabode-ShodunkeFor Appellant(s)

Olusina Sofola, SAN with, O. Ogunnife, O. Soared and I. Oguegbu for 1st Respondent

Okoedon Isi for 2nd Respondent.For Respondent(s)