THE HON. ATTORNEY GENERAL OF THE FEDERATION v. THE NIGERIAN SOCIETY OF ENGINEERS & ORS (2016)

THE HON. ATTORNEY GENERAL OF THE FEDERATION v. THE NIGERIAN SOCIETY OF ENGINEERS & ORS

(2016)LCN/8556(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of April, 2016

CA/L/108/2014

RATIO

COURT: DUTY OF COURT TO CONSIDER AND MAKE PRONOUNCEMENT ON ALL ISSUES BEFORE IT
The law is settled that a Court must consider and pronounce on issues properly submitted before it for determination by the contending parties. Where the issue is subsumed in another issue, it shall no longer be necessary for the Court to make separate pronouncement on the issue subsumed, See: ADEBAYO Vs. A.G. OF OGUN STATE [2008] 7 NWLR (Pt. 1055) 201. Again, the Supreme Court in OVUNWO vs. WOKO [2011] 17 NWLR (Pt. 1277) 522, 546 -547 held that:
“… It is a Courts duty to pronounce on every issue properly placed before it for consideration and determination before arriving at a decision and where it has failed to do so, it leads to a miscarriage of justice apart from as in the instant case breaching the right of the Appellants to fair hearing. See: Dawodu v National Population Commission (2000) 6 WRN 116 at 118. This point of a Courts duty to pronounce on every issue raised before it is fundamental to resolving the instant questions raised in this appeal and is sustainable as per this Courts decision in Brawal Shipping (Nig.) LTD v F.I. Onwadike Co. Ltd & Anor. (Supra) wherein Uwaifo, JSC held at p.403 as follows: “It is no longer in doubt that this Court demands of, and admonishes, the lower Courts to pronounce; as a general rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing on appeal. See: Oyadiran v Amoo (1970) 1 ANLR 313 at 317, Okogbue v Nnubia (1972) 6 SC 227, Atanda v Ajani (1989) 13 NWLR (Pt. 111) 511 at 539, Okonji v Njokanma (1991) 7 NWLR (Pt. 202) 131 at 150 – 152 and Katto v CBN (1991) 9 NWLR (Pt. 214) 126 at 149. A deliberate failure to do so has been characterised as amounting to a failure to perform its statutory duty.” PER TIJJANI ABUBAKAR, J.C.A.
JUDGMENT: HOW SHOULD THE COURT WRITE ITS JUDGMENTS
it is settled that there is no specific format for Judges to follow in writing their Judgments. We are entitled to adopt our individual style in writing our Judgments; the most important thing is to ensure that a Judge does not miss the point in writing his Judgment, a good judgment must contain some well known constituent parts, such constituent parts which a good judgment must contain, in the case of a trial Court, include: the issues or questions to be decided in the case; the essential facts of the case of each party and the evidence led in support; the resolution of the issues of fact and law raised in the case; the conclusion or general inference drawn from facts and law as resolved; and the verdict and orders made by the Court. See: OGBA v ONWUZU [2005] 14 NWLR (Pt. 945) 331, (2005) 6 SC (Pt. 1) 41 AT 49. The above requirements however, need not be stated expressly in every judgment and they need not all be present in every case, See also: A – G FEDERATION & ORS Vs. ATIKU ABUBAKAR (2007) LPELR – 3; 40 – 41, F – D; Let me also in support of the above position cite the decision in JEKPE Vs. ALOKWE [2001] 8 NWLR (Pt. 715) 252; (2001) LPELR – 1604 (SC), 17, paras A – F. Where OGWUEGBU, JSC held as follows:
“It must be emphasized that there is no set style which must be followed by trial Courts when writing judgments. Judges must no doubt differ in the procedure and style, which they adopt in their consideration of the entire evidence. It is not very material whether the Judge starts with the consideration of the defendant’s case before that of the plaintiff and vice versa. What is important is that he should first of all put the whole evidence led by the parties on that imaginary scale. He will put the evidence adduce by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier by the quality or probative value of the testimony as against the quality or number of the witnesses. After this, the judge applies the law, if any, before he comes to his final conclusion based on the accepted evidence.” PER TIJJANI ABUBAKAR, J.C.A.
EFFECT OF NON-COMPLIANCE WITH THE PROVISIONS OF A STATUTE
The law is settled that where a statute prescribes that a particular act be performed, failure to perform the act will lead to whatever consequences that have been provided for under the Statute. See: ADESANOYE Vs. ADEWOLE [2006] 14 NWLR (Pt. 1000) 242, GAMBARI & ORS Vs. GAMBARI & ORS [1990] 5 NWLR (Pt. 152). PER TIJJANI ABUBAKAR, J.C.A.
INTERPRETATION OF STATUTES: HOW SHOULD WORDS USED IN STATUTES BE INTERPRETED
The law is also settled that in the interpretation of statutes, the words used therein must be interpreted in their natural and ordinary grammatical meaning, unless there is a contrary intention in the context or object in which the words are used in the statute, or in the context in which reference is made to them, so as to show a contrary intention different from the natural and ordinary grammatical meaning. See: ADETAYO Vs. ADEMOLA [2010] 15 NWLR (Pt. 1215) 169, AMASIKE Vs. REGISTRAR GENERAL CAC [2010] 13 NWLR (Pt. 1211) 337, and ARAKA Vs. EGBUE [2003] 17 NWLR (Pt. 848) 1. PER TIJJANI ABUBAKAR, J.C.A.

JUSTICES:

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

THE HON. ATTORNEY GENERAL OF THE FEDERATION – Appellant(s)

AND

1. THE NIGERIAN SOCIETY OF ENGINEERS
2. THE HON. MINISTER FOR LANDS, HOUSING AND URBAN DEVELOPMENT
3. THE HON. MINISTER OF EDUCATION
4. THE GOVERNOR OF LAGOS STATE
5. THE HON. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, LAGOS STATE – Respondent(s)

TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This is an Interlocutory appeal against the Ruling of the Lagos State High Court delivered by IPAYE J, on the 12th December, 2013.

The 1st Respondent commenced action by Writ of Summons and a Statement of Claim against the Appellant and the 2nd to 5th Respondents, wherein the 1st Respondent claimed the following reliefs:
1. A Declaration that the Claimant is the holder of the Certificate of Occupancy over all that piece or parcel of land measuring approximately 1653.38 metres and registered as No. 96/96/1995AC at the Lands Registry at Ikeja, Lagos State.
2. A Declaration that the forceful entry into the Claimants said parcel of land and the destruction of the perimeter fence and beacon by the 1st and 2nd Defendants, their servants, agents and/or privies, to wit, the authorities of Kings College, Lagos amounts to trespass.
3. The sum of N3,000,000,000 (Three Billion Naira) as damages for the acts of trespass committed by the 1st and 2nd Defendants, their servants, agents and/or privies on the Claimants parcel of land registered as No.

96/96/1995AC at the Lands Registry at Ikeja, Lagos.
4. An Order of perpetual injunction restraining the 1st and 2nd Defendants, either by themselves, their agents, privies and/or servants from further trespass on the Claimants said parcel of land.

The Appellant in opposition filed a Statement of Defence and a Motion on Notice challenging the jurisdiction of the lower Court to entertain the suit. The Trial Judge after hearing parties on the application dismissed the Motion by holding that the lower Court had jurisdiction to hear and determine the matter.

Dissatisfied with the Ruling of the trial Court, the Appellant through Learned Senior Counsel filed a Notice of Appeal dated 17th December 2013 on a sole ground of appeal, the Notice of appeal is at page 94-97 of the record of appeal, and the sole ground of appeal less its particulars reads as follows:
“The trial Court erred in law when the Court struck out the Appellants motion on Notice dated June 4th 2013 without considering the Appellants argument in reply on points of law dated July 1, 2013 and held that the 1st Respondent as constituted “Nigerian Society of Engineers” is a

body corporate with power to sue and be sued”

Briefs of Argument were then filed and exchanged by the parties. Learned Senior Counsel Dr Fabian Ajogwu SAN filed Appellants Brief of argument on the 17th day of March 2014, and nominated just one issue for determination, and the issue reads as follows:
“Whether the Learned Trial Judge was right when she held that the 1st Respondent as constituted “Nigerian Society of Engineers” is a body corporate with power to sue and be sued without considering the Appellants Reply on points of law dated July l, 2013″.

On the part of the Respondent, learned Counsel Adedapo Tunde-Olowu filed Respondents brief of argument, he also nominated one issue for determination and the issue reads as follows:
“Whether the lower Court was required to make a pronouncement on every submission made by Appellants counsel in respect of the issues raised in the Appellants Notice of Preliminary Objection dated 14th June 2013”.

Learned Senior Counsel for the Appellant filed reply brief on the 25th day of April, 2014.

Arguing the sole issue, Learned Senior Counsel for the

Appellant submitted that the trial Court failed to consider the Appellants argument in its Reply on Point of law where the Appellants Counsel stated that by the provisions of Section 26(1) & (2), 29(2) & (5) and 37 of the Companies and Allied Matters Act, Cap C20, LFN, 2004 (CAMA), the Respondent as constituted, that is, “Nigeria Society of Engineers” is not a body corporate with power to sue and be sued, and not being a juristic person, the lower Court lacked jurisdiction to entertain the suit. Counsel contended that the Court in arriving at a decision in its Ruling, must consider all the issues and argument raised before it. Learned Counsel relied on the decision in OVUNWO Vs. WOKO [2011] 17 NWLR (Pt. 1277) 522, DUZU Vs. YUNUSA [2010] 19 NWLR (Pt. 1201) 80, F.M.H Vs. C.S.A. LTD [2009] 9 NWLR (Pt. 1145) 193 at 221. Learned Senior Counsel further argued that the failure by the learned trial Judge to consider the argument of the Appellant in its Reply on Points of Law led to an error in law in its Ruling. He further contended that since there is error in arriving at a decision the proper decision to be taken by this Court is to either order a

retrial or resolve the issue itself upon the evidence available before it. He submitted that the provisions of Sections 26(2), 29(3) & (5) and 37 of CAMA are unambiguous and that the use of the word “shall” in the provisions makes compliance with the provisions mandatory. He relied upon EMORDI Vs. IGBEKE [2011] 9 NWLR (Pt. 1251) 24 at 38, to submit that where the word “shall” is used in a legislation, such use excludes exercise of discretion by the Court as the use of the word imposes obligation on the Court. Learned counsel finally submitted that the 1st Respondent as presently constituted is not a body corporate with power to sue and be sued, the lower Court is therefore robbed of jurisdiction to hear and determine the suit, he therefore urged this Court to so hold.

Submitting on its sole issue, the 1st Respondent through Learned Counsel, said the Appellant’s counsel misconceived the duty of a Court to pronounce on every issue raised before it, that the Appellant’s Counsel acted under a mistaken impression that the Court’s duty extends to making a?pronouncement on every submission or legal argument made by counsel on an issue. He referred to

OVUNWO Vs. WOKO (supra), ADEOGUN Vs. FASHOGBON [2011] 8 NWLR (Pt. 1250) 427 at 448, WILSON & ANOR Vs. OSHIN & ORS [1994] 9 NWLR (Pt. 366) 90 at 110. Making further submissions on this point, learned counsel for the Respondent said the learned trial judge set out in details the arguments of counsel for both the Appellant and the 1st Respondent on the juristic personality of the 1st Respondent and subsequently made pronouncement on same. He made reference to pages 85 to 87 of the record of appeal the Ruling of the lower Court where learned counsel said the learned trial Judge stated clearly that the 1st Respondent is a juristic person.

Arguing further, Learned counsel for the Respondent submitted that a Reply Brief by the Appellant is only required where a Respondent has raised new points of law in its address, in which case the Appellant shall become entitled to respond. Reply brief according to Counsel does not afford the appellant opportunity to re-argue his appeal Counsel relied on LONGE Vs. F.B.N [2010] 6 NWLR (Pt. 1189) 1 at 55. Learned Counsel for the Respondent again contended that the Appellant in its Written Address dated 4th June, 2013

raised the issue of juristic personality of the 1st Respondent, while the 1st Respondent in response filed a Counter-Affidavit and attached its Certificate of Incorporation issued by the Registrar of Companies as an Exhibit, that the Appellant’s Reply on Points of Law substantially repeated the Appellant’s argument canvassed in its Written Address with respect to Sections 29(3) & (5), and 37 of the Companies and Allied Matters Act. Counsel also said the issue formulated by the Appellant in its Reply on Points of Law is exactly the same issue as that in its Written Address. Learned Counsel for the Respondent then contended that the Appellant had no need for reply on points of law as the reply merely repeated what the Appellant said in its written address. It is thus the submission of learned counsel for the Respondent that the lower Court was not under any obligation to consider the Appellant’s Reply on Points of Law as it was a mere repetition of Appellants argument in the written address.

On the issue of juristic personality, Learned Counsel for the 1st Respondent argued that the 1st Respondent discharged the burden of proving its juristic

personality when it produced its Certificate of Incorporation showing that it is a company incorporated in Nigeria with registration number RC. 5426 which shows that the 1st Respondent was granted a licence under
Section 22 of the Companies Act, 1958 (the law in force at the time the 1st Respondent was incorporated). Counsel further contended that though the Companies Act 1958 was repealed by the Companies Decree No. 51 of 1968, Section 396(3) of the latter preserves all the things done or instruments issued under the 1958 Act. Counsel further argued that Section 568(2) of the Ccompanies and Allied Matters Act Cap C20, Laws of the Federation 2004 which repealed the Companies Decree, 1968 also provides savings for any act done or instrument issued before the commencement of the Act. Counsel therefore submitted that the provisions of Sections 26(2), 29(3) & (5) and 37 of Companies and Allied Matters Act are totally irrelevant in determining the?juristic personality of the 1st Respondent.

In its Reply Brief, the Appellant through learned counsel, contended that the trial Court did not make any pronouncement on the vital issue concerning

Section 26(2) of Companies and Allied Matters Act which mandatorily requires the 1st Respondent to have altered its Memorandum of Association (which necessarily includes its name) so that it becomes a company limited by guarantee. He also referred to WILSON & ANOR v OSHIN & ORS (supra) relied upon by the 1st Respondent to stress that the trial Court must consider relevant point of law whether submitted by counsel or not. He finally submitted that the failure of the 1st Respondent to comply with Sections 26(2) and 29(3) of the Companies and Allied Matters Act is beyond mere irregularity. He therefore urged that this appeal be allowed.

The issue central to the determination of this appeal is whether the learned trial judge considered and pronounced on the juristic personality of the 1st Respondent, and whether the conclusion reached by the learned trial Judge is correct having regard to the relevant provisions of the Companies and Allied Matters Act, Cap C20, LFN 2004, the Appellant said the lower Court did not consider its submissions on the juristic personality of the 1st Respondent.

The law is settled that a Court must consider and

pronounce on issues properly submitted before it for determination by the contending parties. Where the issue is subsumed in another issue, it shall no longer be necessary for the Court to make separate pronouncement on the issue subsumed, See: ADEBAYO Vs. A.G. OF OGUN STATE [2008] 7 NWLR (Pt. 1055) 201. Again, the Supreme Court in OVUNWO vs. WOKO [2011] 17 NWLR (Pt. 1277) 522, 546 -547 held that:
“… It is a Courts duty to pronounce on every issue properly placed before it for consideration and determination before arriving at a decision and where it has failed to do so, it leads to a miscarriage of justice apart from as in the instant case breaching the right of the Appellants to fair hearing. See: Dawodu v National Population Commission (2000) 6 WRN 116 at 118. This point of a Courts duty to pronounce on every issue raised before it is fundamental to resolving the instant questions raised in this appeal and is sustainable as per this Courts decision in Brawal Shipping (Nig.) LTD v F.I. Onwadike Co. Ltd & Anor. (Supra) wherein Uwaifo, JSC held at p.403 as follows: “It is no longer in doubt that this Court demands of, and

admonishes, the lower Courts to pronounce; as a general rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing on appeal. See: Oyadiran v Amoo (1970) 1 ANLR 313 at 317, Okogbue v Nnubia (1972) 6 SC 227, Atanda v Ajani (1989) 13 NWLR (Pt. 111) 511 at 539, Okonji v Njokanma (1991) 7 NWLR (Pt. 202) 131 at 150 – 152 and Katto v CBN (1991) 9 NWLR (Pt. 214) 126 at 149. A deliberate failure to do so has been characterised as amounting to a failure to perform its statutory duty.”

Learned Senior Counsel for the Appellant had argued that the learned trial judge failed to consider and pronounce on issues raised before the Court with respect to the juristic personality of the 1st Respondent, particularly the issue raised in the Appellant’s Reply on Point of Law dated 1st July 2013, on the provisions of Section 26(2) of the Companies and Allied Matters Act. I carefully read the Ruling of the lower Court delivered on 12th December, 2013, especially at pages 85-87 of the record of appeal where the learned trial Judge analysed the submissions made by both Counsel, and stated as follows:

“(Learned Counsel

for the 3rd defendant/applicant) further contends that it is settled law that only juristic persons can sue and be sued in the law Courts. In addition, that only persons conferred with juristic personality have the capacity to hold property in their name. That in the instant case the claimant pleaded that she is a “non-profit organization registered in Nigeria as company limited by guarantee with RC No: 5426”. Referring to Sections 29(3) and 37 of CAMA, learned counsel contends that it is mandatory for the claimant to describe herself accurately at all times and in particular on all Court processes by adding the suffix “Limited by Guarantee”. That the burden is on the claimant to establish that she is a body corporate with perpetual succession. That by virtue of ACB PLC vs. EMOSTRADE LTD (1989) 1 NWLR (PT
536) @ 19 and FAWEHINMI vs. NBA (NO: 2) (1989) 2 NWLR (Pt. 105) @ 558 the only way to discharge this burden is by the production of her certificate of incorporation. That the claimant having failed to establish her juristic personality has robbed the Court of jurisdiction…
In response, learned counsel for the claimant.. relied on all the

facts on his counter affidavit with exhibit attached and the arguments as canvassed on his brief. He further submits that the objections to the juristic personality of the claimant/respondent is misconceived. That the materials placed before the Court proves that the respondent was incorporated on 02/08/1967 with RC NO: 5426 also dated 02/08/67. That by virtue of Section 22(1) of the Company (sic) Act, Cap 37, 1958 LFN that was the applicable law at the material time, the Registrar of Companies was authorized to permit companies not registered to profit to omit the word “Limited” from their name. That in the instant case, the respondent company was duly granted a license from the Registrar of Companies to dispense with this use of the word “Limited” in its name. In addition, that although the Companies Act of 1958 was repealed, the 1968 and 1990 versions of the law preserves any act done or instrument issued under the 1958 enactment. That by the production of her certificate of incorporation certified as above as shown on Exhibit A, the respondent has discharged the legal burden of establishing her legal personality.”

The extract above from the ruling

of the lower Court shows that the learned trial judge considered the argument of the Appellant as 3rd Defendant with respect to the juristic personality of the 1st Respondent. I examined the Appellant’s Reply on Points of Law dated 2nd July, 2013 at pages 68 to 71 of the record of appeal, which constitutes the basis of discontent with the Ruling of the lower Court by the Appellant, I must state with all due respect to the learned Senior Counsel for the Appellant that the arguments contained in the reply on points of law are mere repetition of the arguments contained in the Appellant’s Written Address dated 4th June, 2013. It will therefore be superfluous for the learned trial judge to restate the argument therein. Contrary to the submissions of the learned Senior Counsel for the Appellant, the learned trial judge in my view amply considered the argument of the Appellant in its Reply on Points of Law as reproduced above. It is not necessary for the learned trial judge to state expressly that it is considering the issues raised in the reply on points of law; what is important is that the issue raised in the Reply on points of law must be considered and addressed

by the Court in determining the issue before it.
While pronouncing on the issue of juristic personality of the 1st Respondent, the learned trial Judge at page 93 of the record of appeal held as follows:
“Finally, this Court is satisfied that the claimant/respondent by virtue of Exhibit A has discharged the evidential burden of proving he juristic personality being a body corporate limited by guarantee duly licensed to omit the word “Limited” from her name and I so hold.”

As I stated earlier in this Judgment, the law is settled that a Court must consider and pronounce on issues properly submitted before it for determination by the contending parties but where the issue is subsumed in another issue, it shall no longer be necessary for the Court to make separate pronouncement on the issue subsumed. I am of the view that the learned trial judge dealt with the issue of juristic personality of the 1st Respondent in the ruling. It is therefore unnecessary for the learned trial Judge to pronounce on the issue again having made pronouncement earlier.

Learned Senior Counsel for the Appellant expected specific pronouncement on the provisions

of Sections 26, 29 and 37 of the Companies and Allied Matters Act 2004, having raised the specific sections in his reply on points of law, but the learned trial Judge made no pronouncement on the issues. At this point, I am in agreement with Learned Senior Counsel for the Appellant that the lower Court did not specifically pronounce on the legal consequences of the relevant Sections 26, 29, and 37 cited by learned Senior Counsel for the Appellant as they relate to the juristic personality of the 1st Respondent a body incorporated under the extinct Companies Act, even though the lower Court in its ruling touched on the juristic personality of the 1st Respondent.

This brings to fore the issue of Judgment writing, it is settled that there is no specific format for Judges to follow in writing their Judgments. We are entitled to adopt our individual style in writing our Judgments; the most important thing is to ensure that a Judge does not miss the point in writing his Judgment, a good judgment must contain some well known constituent parts, such constituent parts which a good judgment must contain, in the case of a trial Court, include: the issues or

questions to be decided in the case; the essential facts of the case of each party and the evidence led in support; the resolution of the issues of fact and law raised in the case; the conclusion or general inference drawn from facts and law as resolved; and the verdict and orders made by the Court. See: OGBA v ONWUZU [2005] 14 NWLR (Pt. 945) 331, (2005) 6 SC (Pt. 1) 41 AT 49. The above requirements however, need not be stated expressly in every judgment and they need not all be present in every case, See also: A – G FEDERATION & ORS Vs. ATIKU ABUBAKAR (2007) LPELR – 3; 40 – 41, F – D; Let me also in support of the above position cite the decision in JEKPE Vs. ALOKWE [2001] 8 NWLR (Pt. 715) 252; (2001) LPELR – 1604 (SC), 17, paras A – F. Where OGWUEGBU, JSC held as follows:
“It must be emphasized that there is no set style which must be followed by trial Courts when writing judgments. Judges must no doubt differ in the procedure and style, which they adopt in their consideration of the entire evidence. It is not very material whether the Judge starts with the consideration of the defendant’s case before that of the plaintiff and vice versa. What is

important is that he should first of all put the whole evidence led by the parties on that imaginary scale. He will put the evidence adduce by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier by the quality or probative value of the testimony as against the quality or number of the witnesses. After this, the judge applies the law, if any, before he comes to his final conclusion based on the accepted evidence.”

In the instant case, the learned trial judge, upon considering and analysing the argument put forward by the Appellant ought to have considered and pronounced on the issues raised by the Appellant with regards to the application of the relevant provisions of Section 26, 29 and 37 of the Companies and Allied Matters Act, 2004 vis a vis those of the extinct 1958 Companies Act and the 1968 Companies Act. In the instant case, the Learned trial Judge merely reached the conclusion that the 1st Respondent was able to prove its juristic personality by tendering “Exhibit A”, its certificate of incorporation which states prima facie that the 1st Respondent was

granted licence to operate as a company limited by guarantee, the learned trial Judge did not consider the provisions of Sections 26, 29 and 37 of the Companies and Allied Matters Act, 2004 as raised by the Appellant in its Written Address and Reply on Points of Law.

?The pertinent question arising here is, whether the lower Court was right in the conclusion arrived at with respect to the juristic personality of the 1st Respondent in the light of the relevant provisions of the Companies and Allied Matters Act.

Section 26(2) of the Companies and Allied Matters Act 2004 provides as follows:
“As from the commencement of this Act, a company limited by guarantee shall not be registered with a share capital; and every existing company limited by guarantee and having share capital shall not later than the appointed day, alter its memorandum so that it becomes a company limited by guarantee and not having a share capital.”

By virtue of Section 29(3) & (5), the name of a company limited by guarantee shall end with the words “(Limited by guarantee)”, in brackets and such a company is permitted to use the abbreviation “Ltd/Gte” in the name

of the company.

Appellant’s counsel also made reference to Section 37 of the Companies and Allied Matters Act, which reads as follows:
“As from the date of incorporation mentioned in the certificate of incorporation, the subscriber of the memorandum together with such other persons as may, from time to time, become members of the company shall be a body corporate by the name contained in the memorandum, capable forthwith of exercising all the powers and functions of an incorporated company including the power to hold land, and having perpetual succession and a common seal, but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up as is mentioned in this Act.”

Learned Senior Counsel for the Appellant argued that in line with the provisions of Section 26(2) reproduced above, the 1st Respondent, being an existing company registered before the commencement of the Act, must of necessity alter its memorandum to reflect that it is a company limited by guarantee, and that the provisions of Section 26(2) are mandatory, the 1st Respondent must alter its Memorandum of Association

including its name, so that it becomes a Company limited by guarantee. The law is settled that where a statute prescribes that a particular act be performed, failure to perform the act will lead to whatever consequences that have been provided
for under the Statute. See: ADESANOYE Vs. ADEWOLE [2006] 14 NWLR (Pt. 1000) 242, GAMBARI & ORS Vs. GAMBARI & ORS [1990] 5 NWLR (Pt. 152).

The law is also settled that in the interpretation of statutes, the words used therein must be interpreted in their natural and ordinary grammatical meaning, unless there is a contrary intention in the context or object in which the words are used in the statute, or in the context in which reference is made to them, so as to show a contrary intention different from the natural and ordinary grammatical meaning. See: ADETAYO Vs. ADEMOLA [2010] 15 NWLR (Pt. 1215) 169, AMASIKE Vs. REGISTRAR GENERAL CAC [2010] 13 NWLR (Pt. 1211) 337, and ARAKA Vs. EGBUE [2003] 17 NWLR (Pt. 848) 1.

It is necessary to state that Section 26(2) of the Companies and Allied Matters Act is to the effect that as from the commencement of the Companies and Allied Matters Act, every

company seeking to be registered as a company limited by guarantee shall not be registered with a share capital. The provision further states that every existing company limited by guarantee AND having a share capital shall, not later than the appointed day, alter its memorandum so that it becomes a company limited by guarantee and not having a share capital. I must state that the scope of the provisions of 26(2) is limited having regard to its area of coverage. In the said section, the word “AND” was used. The word “AND” is used to connect words of the same parts of speech, clauses or sentences that are to be taken jointly. In ANIE Vs. UZORKA [1993] 9 SCNJ 223, (1993) LPELR – 490 (SC), 23 – 24, D – A, the Supreme Court, per ONU, JSC held as follows:
“the use of the word “OR” which has sometimes been used as “and”. See Brown & Co. v. Harrison (1927) 3 TLR 394. 394. For instance, MacKinnon, J, read ‘”or” as “and” in the Carriage of Goods by Sea Act. 1924 and his decision was confirmed by the Court of Appeal (England). One does not do it unless one is obliged to because “or” does not generally mean “and” and “and” does not generally mean “or”. See Green

v. Premier Glynrhonwy State Co. Ltd (1928) 1 KB 561 at P. 568 C.A (per Scrutton L.J.). In the context that “or” is used in the Act in the italicized clause above, its true meaning in the clause “The Permanent Secretary of Ministry ‘OR’ the Head of any Government etc.” it is bound to be disjunctive rather than conjunctive as respondents’ counsel would want us to hold. Black’?s Law Dictionary, 5th Edition at P. 987 defines “OR” as “A disjunctive particle used to express an alternative or to give a choice of one among two or more things.”
See also: KABIRIKIM v EMEFORE [2009] 14 NWLR (Pt. 1162) 602 SC.
In my view, the use of the word “AND” in that provision is conjunctive and not disjunctive. The implication is that the words “company limited by guarantee” must be read together with the words “share capital” so that both must be fulfilled together. I am also of the view that the essence of the alteration of the memorandum of an existing company limited by guarantee pursuant to Section 26(2), though includes alteration of the name of the company, is principally to alter its status to wear the looks of a company limited by guarantee not

having a share capital, the principal object of the alteration is to make it a Company Limited by guarantee and without a share capital. Again the provision of Section 26 is to the effect that the alteration of the memorandum of such company shall be effected, not later than the appointed day. There is nowhere in Section 26 of the Act or anywhere else in the Act where the term ‘appointed day’ was defined.

It is not the duty of this Court or any other Court in this country to act on speculation or embark on interpretation by logical deduction. The duty of the Courts is to interpret the provisions of the relevant laws and Constitution, not to amend, add to or subtract from the provisions enacted by the legislature. In AROMOLARAN Vs. AGORO (2014) LPELR – 24037 (SC) 25, B – F, GALADIMA, JSC said as follows:
“I must say that the duty of the Court is to interpret the words contained in the statute and not to go outside the clear words in searching of an interpretation which is convenient to the Court or to the parties in the process of interpretation. The Court will not embark on a voyage of discovery. Where a statute is clear and unambiguous,

as this case, this Court will follow the literal rule of interpretation where the provision of the statute is clear and no more. In the case of ADEWUNMI v A.G. EKITI STATE (2002) 2 NWLR (Pt 751) 474, WALI JSC said at page 512:
“In cases of statutory construction the Court’s authority is limited. Where the statutory language and legislative intent are clear and plain, the judicial inquiry terminates there.” See also: AMAECHI Vs. INEC [2008] 5 NWLR (Pt. 1080) 227 SC, (2008) LPELR – 446 (SC), ACN & ANOR Vs. INEC [2007] 12 NWLR (PT. 1048) 220 SC, and KRAUS THOMPSON ORG. Vs. N.I.P.S.S [2004] 17 NWLR (Pt. 901) 44.

It is not the contention of Learned Senior Counsel for the Appellant, that the 1st Respondent is a company limited by guarantee and having a share capital existing before the commencement of the Companies and Allied Matters Act so as to come within the ambit of Section 26(2) which requires it to alter its memorandum, to the contrary, the contention of learned senior counsel, is that the provision of Section 26(2) applies to the 1st Respondent because it was an existing company limited by guarantee. I have earlier in

this Judgment held the view that Section 26 of the Act is limited in scope, and should therefore be construed as such.

With regards to the effect of Sections 29 and 37 of the Act on the juristic personality of the 1st Respondent, counsel for the 1st Respondent argued that they are not relevant to the instant appeal. It is the contention of the 1st Respondents counsel that by virtue of Section 22 of the Companies Act, 1958 upon which the 1st Respondent was incorporated, it was granted a licence to be registered as a company with limited liability without the addition of the word limited to its name. Section 22(1) reads:
“Where it is proved to the satisfaction of the Registrar that an association about to be formed as limited company is to be formed for promoting commerce, art, science, religion, charity, or any other useful object, and intends to apply its profits (if any) or other income in promoting its object, and to prohibit the payment of any dividend to its members, the Registrar may by licence direct that the association be registered as a company with limited liability, without the addition of the word “Limited” to its name, and the

association may be registered accordingly.”

As the 1st Respondents counsel rightly submitted, the Companies Act, 1958 was repealed by the Companies Decree No. 51 of 1968 but by virtue of Section 396(3) of the Companies Decree, 1968 and subsequently, Section 568(2) of the extant Companies and Allied Matters Act, Cap C20, LFN 2004, all the things done or instruments issued under the 1968 Act were preserved. Section 568(3) of the Companies and Allied Matters Act Cap C20 Laws of the Federation 2004 reads as follows:
“Nothing done in this Act shall affect any order, rule, regulation, appointment, conveyance, mortgage, deed or agreement made, resolution passed, direction given, proceeding taken, instrument issued or thing done under the enactment hereby repealed; but any such order, rule, regulation, appointment, conveyance, mortgage, agreement, resolution, direction, proceeding, instrument or thing if in force immediately before the commencement of this Act shall, on the commencement of this Act, continue in force, and so far as it could have been made, passed, given, taken, issued or done under this Act, shall have effect as if so made, passed,

given, taken, issued or done.”

I conducted a very careful examination of the certificate of incorporation of the 1st Respondent at page 56 of the record of appeal and found just as the learned trial Judge did, that the 1st Respondent was granted licence to be registered without the addition of the word “Limited” by the Registrar of Companies pursuant to Section 22 of the 1958 Companies Act. As evident on the face of the certificate, “The Nigerian Society of Engineers” (without the word ‘Limited’) was registered as a body corporate, and therefore has juristic personality. I am unable to agree with the Learned Senior Counsel for the Appellant that the 1st Respondent as presently constituted is not a body corporate with power to sue and be sued.

The sole issue is resolved in favour of the 1st Respondent against the Appellant.

On the whole, therefore this appeal is unmeritorious and is hereby dismissed. The Ruling of the learned trial Judge, IPAYE, J delivered on 12th December, 2013 is hereby affirmed.

N50,000.00 cost is awarded to the 1st Respondent.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read in

its draft form, the judgment of my learned brother TIJJANI ABUBAKAR, JCA.

I agree with the reasoning and conclusion that this appeal
lacks merit and ought to be dismissed.

I also will, and hereby dismiss the appeal and equally abide by the consequential orders made in the leading judgment including order as to costs.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have the benefit of reading in draft, the leading judgment just delivered by my learned brother, ABUBAKAR, JCA and I agree with him that this appeal is unmeritorious and add that:-
The issue in the instant appeal revolves around the interpretation of the provisions of Section 26(2); 29(3) and (5) as well as Section 37 of the Companies and Allied Matters Act, Cap. C2O, Laws of the Federation of Nigeria, 2004. Section 26(2) provides:
“As from the commencement of this Act, a company limited by guarantee shall not be registered with a share capital; and every existing company limited by guarantee and having share capital shall, not later than the appointed day, alter its memorandum so that it becomes a company limited by guarantee and not having a share

capital.” (Underline Mine)

Section 29 states:
1
2.
3. The name of a company limited by guarantee shall end with the words “(Limited by Guarantee)” in brackets.
4.
5. A company may use the abbreviations “Ltd”, “PLC”, “(Ltd/Gte)” and “Ultd” for the words “Limited”, “Public Limited Company”, “(Limited by Guarantee)” and “Unlimited” respectively, in the name of the company.”

On the other hand, Section 37 reads:
“As from the date of incorporation mentioned in the certificate of incorporation, the subscriber of the memorandum together with such other persons as may, from time to time, become members of the company, shall be a body corporate by the name contained in the memorandum, capable forthwith of exercising all the powers and functions of an incorporated company including the power to hold land, and having perpetual succession and a common seal, but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up as is mention in this Act.”

It appears to be the consensus of parties in the instant appeal that the 1st Respondent not only answers to

the description of a company limited by guarantee as defined under the Companies and Allied Matters Act, it also existed prior to the commencement of the Act, having been registered under the 1958 Companies Act pursuant to Section 22 of the extinct Act. Therefore, for the purpose of Section 26(2) of the Act, the 1st Respondent is an existing company limited by guarantee.

The provision of Section 26(2) is clear and unambiguous and there is no pretence as to the scope of its applicability. It is the obvious provision of the section by the use of the conjunctive word, “AND” that the provision purportedly relates only to companies limited by guarantee and having share capital before the commencement of the Act. Such companies are required to alter their memorandum to reflect that they are companies limited by guarantee and not having share capital. Indeed, Section 26(2) states that such alteration shall be effected, not later than the appointed day. Quite curiously, the “appointed day” was not prescribed anywhere in the Act. It is the duty of the Court to intreprete the statutes, where same is clear and unambiguous, in its ordinary and literal meaning and

not to engage in speculative voyage of discovery. See: KOTOYE v SARAKI [1994] 7 NWLR (PT 357] 414; JOLASUN v BAMGBOYE [2010] 18 NWLR (PT 1225] 285 SC.

The provision of Section 26(2) while not expressly stating the appointed day being referred to therein, is also evident as to the fact that such existing company must be a company limited by guarantee AND having a share capital. The Appellant has not put forward any material before the lower Court and indeed this Court, any material, indicating that not only is the 1st Respondent a company limited by guarantee, but that it also has share capital in order to warrant the alteration of the 1st Respondent’s memorandum of association.

Meanwhile, having been granted licence under Section 22(1) of the 1958 Act which was saved by Section 396(3) of the 1968 Companies Act and subsequently, Section 568(3) of the extant Act, the 1st Respondent can sue and be sued in its name without adding the word “Limited” or “Ltd” to its name. I am therefore of the view, as 1st Respondent’s counsel rightly noted, that the provisions of Section 29(3) and (5) of CAMA are irrelevant to the issue arising in the instant

appeal.

Therefore, in the light of the above and the well articulated reasoning and conclusion reached in the leading judgment, I have no hesitation in holding that the instant appeal is unmeritorious and same is hereby dismissed by me. I abide by the consequential orders made in the leading judgment.

Appearances

Chineme Onuoma with him, Osita Nwosu For Appellant

AND

A. Tunde Olowu with him, Adeola Ogunbiade (Miss) for 1st Respondent For Respondent