UTHMAN v. CANVASS FARMS (NIG) LTD & ORS
(2021)LCN/15858(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, April 01, 2021
CA/LAG/CV/222/2020(2)
Before Our Lordships:
Biobele Abraham Georgewill Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
ADENIYI MOHAMMED UTHMAN APPELANT(S)
And
1. CANVASS FARMS NIGERIA LIMITED 2. ANDREW OSHAME 3. OLUSEGUN MUYIWA 4. DELE OLUBOYEDE 5. ASSET MANAGEMENT CORPORATION OF NIGERIA RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURT OF APPEAL CAN REEVALUATE THE EVIDENCE LED BEFORE THE TRIAL COURT
In law, an appeal or cross-appeal as the case may be challenging the evaluation and finding of a trial Court is ordinarily a call on this Court to re-evaluate the evidence led before the trial Court to arrive at proper finding of facts should it turn out that proper evaluation had not been carried out by the trial Court. Thus, unless and until the appellate Court comes to the conclusion that the trial Court had not carried out its duty of proper evaluation and ascription of probative value to the evidence before it, the duty of the appellate Court to re-evaluate the evidence on the printed records would not arise. The law is that for a an appellate Court to embark on such a duty it must be demonstrated that the Court below had either not carried out its duty of evaluation of the evidence led before it or had carried out an improper evaluation of the evidence and had arrived at findings which are perverse, and which ought in law to be set aside so that proper findings as dictated by the proved evidence as in the printed record are made by the appellate Court in the interest of justice and to avoid the perpetuation of injustice should the perverse judgment of the trial Court be allowed to stand. See Woluchem V. Gudi (Supra). See also Michael Hausa V. The State (1994) 7-8 SC 144. See also Guardian Newspaper Ltd. V. Rev. Ajeh (2011) 10 NWLR (Pt. 1256) 574 @ p. 582; Prince Ugoh Michael V. Access Bank of Nigeria Plc. (2017) LPELR – 41981(CA) per Georgewill JCA. PER GEORGEWILL, J.C.A.
WHETHER OR NOT A SHAREHOLDER NOR A DIRECTOR OF AN INCORPORATED COMPANY CAN BE HELD LIABLE FOR THE LIABILITIES OR DEBTS OF THE COMPANY
Generally, in law, by reason of the incorporation of a company under the Companies and Allied Matters Act, 2004, neither a shareholder nor a director nor a member of an incorporated Company can be held personally liable for the liabilities and/or debts of the Company beyond the unpaid value of his shares unless the veil of incorporation is lifted on grounds of fraud, illegality, sham etc. See Vibelko (Nig.) Ltd V. NDIC (2006) 12 NWLR (Pt. 994) 280 @ pp. 293 – 294, where it was succinctly held inter alia as follows:
“There is a clear distinction between a company and its directors and members in terms of corporate liability. Upon incorporation of a company it becomes a body corporate and in the eyes of the law, a person is distinct from its members and shareholders. Therefore, a director of an incorporated company cannot be held liable for the loan granted in favor of the company unless he is either a surety or guarantor of the loan granted to the company. A company is an artificial entity, which is separate and distinct from its shareholders and directors, or from the members and organs of the company.”
See also, Solomon V. Salomon & Company (1879) AC 22; Alhaji Mohammed Abacha V. A.G. Federation (2013) LPELR-21749; New Nigerian Newspapers V. Agbomabini (2013) LPELR-20741(CA). See also, Nigerian Deposit Insurance Corporation V. Financial Merchant Bank Limited (1997) 4 NWLR (Pt. 501) 509; Commercial Bank (Credit Lyonnais) Nig. Ltd V. Okoli (2009) 5 NWLR (Pt. 1135) 446; Aso Motel Kaduna V. Dayo Deyemo (2006) 7 NWLR (PT 978) 87.
However, under the AMCON Act, 2010 (as amended), in 2019, the law now as it relates to AMCON and its Debtor Companies is that that once it is established that a company is indebted to AMCON, it is allowed to deem the Shareholders, Directors, and Creditors of such debtor company as Debtors and attach their properties in satisfaction of the debt. See Section 61 of the Asset Management Corporation of Nigeria (Amendment No. 2) Act, 2019 which provides thus:
“Debtor or Debtor Company means any borrower, beneficiary of an eligible bank asset and includes a guarantor of a debtor, guarantor or director of a debtor company”
See also, Imasekha V. AMCON & Ors. (2018) LPELR- 45950 (CA). PER GEORGEWILL, J.C.A.
ESSENTIAL COMPONENTS WHICH A GOOD JUDGEMENT MUST INCORPORATE
Consequently, that part of the judgment of the Court below Cross-Appealed against was perverse and fell far short of the requirement of a valid judgment under the law. See Ogolo and Ors V. Ogolo and Ors (2003) LPELR – 2309 (SC), where the Supreme Court per Kastina-Alu, JSC., (as he then was but later CJN), had reiterated inter alia thus:
“However, there are certain essential components which a good judgment must incorporate inter alia, set out the nature of the action before the Court; the issues in controversy; a review of the case for the parties; a consideration of the relevant law raised and applicable to the case; specific findings of the fact, and conclusions. The reasons for arriving at the conclusions must also be stated”
See also, Igwe V. Alvan Ikoku College of Education, Owerri (1994) 8 NWLR (Pt.363) 459; Adeyemo V. Arokopo (1988) 2 NWLR (Pt. 79) 703; Imogiemhe V. Alokwe (1995) 7 NWLR (Pt. 409) 581; Akinfolarin V. Ademola (1994) 3 NWLR (Pt.335) 659.” PER GEORGEWILL, J.C.A.
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is a Cross-Appeal by Cross-Appellant, who is the 2nd Respondent in the main appeal against that part of the judgment of the Federal High Court, Lagos Judicial Division; Coram: I. N. Oweibo J, in Suit No. FHC/L/CS/415/2019: Asset Management Corporation of Nigeria & Anor V. Canvass Farms Nigeria Limited delivered on 16/1/2020, wherein, the Court below held that the appointment of the Cross-Appellant by the 5th Cross-Respondent was made pursuant to Section 396(1) of the Companies and Allied Matters Act, 2004, and also refusing to attach the 1st-4th Cross-Respondents’ property situate at 11A Tiwatayo Street, off Orelope Bustop Egbeda, Lagos on the ground that the legal mortgage over the said property was not executed by the 1st-4th Cross-Respondents.
The Cross-Appellant was dissatisfied with that part of the said judgment and had cross-appealed against it vide his Notice of Cross-Appeal filed on 14/2/2020 on two grounds of Cross-Appeal. The parties relied on the Record of Appeal as duly compiled and transmitted in the main appeal. The Cross- Appellant’s brief was filed on 30/4/2020 but was deemed as properly filed on 28/1/2021. The 1st-4th Cross-Respondents’ brief was filed on 12/5/2020 but was deemed as properly filed on 28/1/2021.
At the hearing of this appeal on 28/1/2021, Akinyemi Olujinmi Esq, learned counsel for the Cross-Appellant adopted the Cross-Appellant’s brief as his arguments and urged the Court to allow the Cross-Appeal and set aside that part of the judgment of the Court below. On his part, Harrison Ogalagu Esq, learned counsel for the 1st-4th Cross Respondents adopted the 1st-4th Cross-Respondents brief as his arguments and urged the Court to dismiss the Cross-Appeal and affirm that part of the judgment of the Court below.
BRIEF STATEMENT OF FACTS
My lords, I had earlier in the judgment in the main appeal set out in great details the facts and circumstances leading to the commencement of the Cross-Appellant and the 5th Cross-Respondent’s suit before the Court below and the resultant judgment of the Court below mainly in favor of the Cross-Appellant and the 5th Respondent save for the finding of the Court below that the appointment of the Cross-Appellant by the 5th Cross-Respondent was made pursuant to the provisions of the Companies and Allied Matters Act, 2004, and not the provisions of the AMCON Act, 2010, and refusing to grant the relief sought by the Cross-Appellant and 5th Respondent to attach the property located at 11A, Tiwatayo Street, Off Orelope Bus Stop, Egbeda, Lagos State on the ground there was no legal mortgage executed by the 1st-4th Cross-Respondents in favour of Skye Bank Plc., over the said property, hence the Cross-Appeal. See pages 729-751 and pages 762-765 in volume II of the Records of Appeal.
ISSUES FOR DETERMINATION
In the Cross-Appellant’s brief, two issues were distilled as arising for determination from the two grounds of the Cross-Appeal, namely:
1. Whether the 5th Cross-respondent’s powers to appoint the Cross-Appellant as Receiver of the 1st Cross-Respondent is governed by Section 396 (1) of the Companies and Allied Matters Act, 2004 (CAMA) or Section 48 (1) of the Asset Management Corporation of Nigeria 2010 AMCON Act? (Distilled form Ground 1)
2. Whether the refusal of the Court below to grant the Cross-Appellant and 5th Cross-Respondent’s prayers to attach and sell the property of the 1st to 4th Cross-Respondents located at 11A, Tiwatayo Street, off Orelope Bus-Stop, Egbeda, Lagos State to recover its money did not occasion miscarriage of justice? (Distilled from Ground 2)
In the 1st-4th Cross-Respondents’ brief, two issues were also distilled as arising for determination in this appeal, namely:
1. Whether the power of the 5th Cross-Respondent to appoint the Cross-Appellant is governed by CAMA as opposed to AMCON Act and the need for the Cross-Appellant to give notice to the 1st Cross-Respondent pursuant to CAMA?
2. Whether the Court below was not right in refusing to attach and sell the property or recognise the appointment of the Cross-Appellant as Receiver in respect of the property located at 11A, Tiwatayo Street, off Orelope Bus-Stop, Egbeda, Lagos State?
I have given due consideration to the facts and circumstances leading to the complaint in the Cross-Appeal against that part of the judgment of the Court below. I am of the view that the two issues as distilled in the Cross- Appellant’s brief best represent the proper issues arising for determination in this Cross-Appeal and a consideration of which would invariably involve a consideration of the two issues as distilled in the 1st-4th Cross-Respondents’ brief. I hereby adopt and set down the Cross-Appellant’s two issues as the issues for determination in this Cross-Appeal. However, I shall consider the two issues together and resolve them in one fell swoop.
ISSUES ONE AND TWO TAKEN TOGETHER
Whether the 5th Cross-respondent’s powers to appoint the Cross-Appellant as Receiver of the 1st Cross-Respondent is governed by Section 396 (1) of the Companies and Allied Matters Act, 2004 (CAMA) or Section 48 (1) of the Asset Management Corporation of Nigeria, 2010, AMCON Act AND whether the refusal of the Court below to grant the Cross-Appellant and 5th Cross-Respondent’s prayers to attach and sell the property of the 1st to 4th Cross-Respondents located at 11A, Tiwatayo Street, off Orelope Bus-Stop, Egbeda, Lagos State to recover its money did not occasion miscarriage of justice?
CROSS-APPELLANT’S COUNSEL SUBMISSIONS
On issue one, learned counsel to the Cross-Appellant had submitted that the Court below was wrong when it held that the 5th Cross-Respondent’s power to appoint the Cross-Appellant as Receiver is governed by Section 396 (1) of the Companies and Allied Matters Act, 2004 (CAMA) as opposed to Section 48 (1) of the Asset Management Corporation Act and contended that under the AMCON Act, 2010, (as amended) by virtue of which the Cross-Appellant was appointed by the 5th Cross-Respondent there is no requirement of the Cross-Appellant giving notice of his appointment as Receiver to the 1st Cross-Respondent and urged the Court to hold that a Receiver, such as the Cross-Appellant appointed by the 5th Cross-Respondent is only duty bound to give notice of its appointment by publication in at least two newspapers and to allow the Cross-Appeal and set aside the perverse finding of the Court below. Counsel referred to Section 48(1) (2) and (4) of the Asset Management Corporation of Nigeria Act, 2010 (as amended).
It was also submitted that from the Deed of Appointment of the Cross-Appellant it was made clear that he was appointed by the 5th Cross-Respondent as Receiver for the 1st Cross-Respondent under Section 48 of the AMCON Act, 2010 (as amended) and contended that the said enactment being specific to AMCON and also latter in time prevails over the Companies and Allied Matters Act, 2004 in relation to the powers and duties of AMCON and urged the Court to so hold and to allow the Cross-Appeal and set aside the perverse findings to the contrary by the Court below.
On issue two, learned counsel to the Cross-Appellant had submitted that the Court below was wrong when it refused or failed to grant leave to the Cross-Appellant to attach and sell the property situate at 11A, Tiwatayo Street, off Orelope Bus-Stop, Egbeda, Lagos State and contended that the Court below even failed to make any pronouncement on it and urged the Court to re-evaluate the evidence and come to the finding that the said property having been duly pledged as collateral security for the credit facilities granted by Skye Bank Plc., to the 1st Cross-Respondent was upon the establishment of the indebtedness of the 1st Cross-Respondent to the 5th Cross-Respondent liable to be attached in satisfaction of the indebtedness of the 1st Cross – Respondent and to allow the Cross – Appeal, set aside that part of the judgment of the Court below and grant the attachment of the said property by the Cross-Appellant and the 5th Cross-Respondent in satisfaction of the outstanding debts of the 1st Cross-Respondent due payable to the 5th Cross-Respondent. Counsel relied on Ogolo and Ors V. Ogolo and Ors (2003) LPELR – 2309 (SC).
It was also submitted that had the Court below properly evaluated the evidence in respect of the said property it would have had no difficulty reaching a conclusion to grant the Cross-Appellant and the 5th Cross-Respondent the right to attach and sell the said property and contended that the Court below failed to properly evaluate the evidence adduced in favor of the specific relief sought by the Cross-Appellant and the 5th Cross-Respondent to attach and sell the above said property which failure had occasioned a grave miscarriage of justice and urged the Court to invoke its powers to review the evidence led on that point which remains unchallenged and grant the Cross-Appellant the right to attach and sell the said mortgaged property.
1ST-4TH CROSS RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue one, whether the power of the 5th Cross-Respondent to appoint the Cross-Appellant is governed by CAMA 2004 as opposed to AMCON Act, 2010 (as amended) and the need for the Cross-Appellant to give notice to the 1st Cross-Respondent pursuant to CAMA, learned counsel to the 1st-4th Cross-Respondents had submitted that the Court below was right when it held that that the Cross-Appellant upon his appointment ought to have sent a notice to the 1st Cross-Respondent in compliance with Section 396(1) of CAMA but failed to do so and contended that since the appointment of the Cross-Appellant as Receiver was predicated on the Deed of All Assets Debenture, a document which had been registered with the Corporate Affairs Commission it is the provisions of CAMA 2004 on procedure for appointment of a Receiver that governed the appointment of the Cross-Appellant and urged the Court to hold that the Cross-Appellant must comply with it and to dismiss the Cross-Appeal and affirm that part of the judgment of the Court below. Counsel referred to Section 396 of CAMA<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
It was also submitted that the Cross-Appellant and 5th Cross-Respondent haven acted under the provisions of CAMA, 2004 in the appointment of the Cross-Appellant pursuant to the Deed of All Assets Debenture was bound to act in compliance with the provisions of Section 396 of CAMA as held rightly by the Court below and contended that the 5th Cross-Respondent having bungled up the appointment of the Cross-Appellant cannot now make a u-turn to place reliance on the provisions of Section 48 of the AMCON Act, 2010 (as amended), and thereby setting up a new case in the Cross-Appeal and urged the Court to hold that the 5th Cross-Respondent remained bound by the case it presented before the Court below and to dismiss the Cross-Appeal and affirm that part of the judgment of the Court below. Counsel relied on Adejumo V. Agumagu (2015) LPELR-24502 (CA); Garuba V. Omokhodion (2011) 14 NWLR (Pt.1269) 145; Oseni V. Union Bank of Nigeria & Anor (2018) LPELR-44664 (CA); Salawu Ajide V. Kadiri Kelani (1985) 3 NWLR (PT. 12) 248; FBN V. Songonuga (2007) 3 N.W.L.R. (Pt. 1021) 230; ACB Intl Bank Plc. V. Adiele (2013) LPELR-21164. Atanda V. Comm., L.H., Kwara State (2018) 1 NWLR (Pt. 1599) 32; Dagaci of Dere V. Dagaci of Ebwa (2006) 7 NWLR (Pt. 979) 382; Ukpong V. Commissioner for Finance (2006) 19 NWLR (Pt.1013) 187; Eze V. Eze (2010) LPELR-4546 (CA); Iroegbu V. Okwordu (1990) 21 NSCC (Pt.3) 377.
On his issue two, whether the Court below was not right in refusing to attach and sell the property or recognize the appointment of the Cross-Appellant as Receiver in respect of the property located at 11A, Tiwatayo Street, off Orelope Bus-stop, Egbeda, Lagos State, learned counsel for the 1st-4th Cross-Respondents had submitted that this property belongs to the 2nd Cross-Respondent and not to the 1st Cross-Respondent and neither at any time was it pledged to the Cross-Appellant nor executed any Deed of Legal Mortgage in favor of the 5th Cross-Respondent over the said property and contended that the Court below was right when it refused to sanction the attempt by the Cross-Appellant and the 5th Cross-Respondent to take over the said property and urged the Court to hold that in law, since the said property does not belong to the 1st Cross-Respondent for which the Deed of All Assets Debenture applies, the attempt by the Cross-Appellant and the 5th Cross-Respondent to attach the said property for sale amounts to expropriation as there is nothing to justify the inclusion of the properties of 2nd-4th Cross Respondents and to dismiss the Cross–Appeal and affirm that part of the judgment of the Court below.
It was further submitted that on the evidence placed before the Court below, the Cross-Appellant and the 5th Cross-Respondent were not entitled to an order for attachment and/or sale of the said property belonging to the 2nd Cross-Respondent as was rightly found by the Court below and contended that in law, where the words of a contract agreement or document are clear, the operative words in it should be given their simple and ordinary grammatical meaning and urged the Court not to interfere with correct finding of facts made by the Court below since it has not been shown to be perverse or not supported by the evidence or based on wrong principle of law. Counsel relied on Dalek Nig. Ltd V. OMPADEC (2007) LPELR – 916 (SC); Union Bank of Nig. Ltd V. Sax (Nig) Ltd (1994) 9 SCNJ 1; Edosomwan V. Idugboe (2019) LPELR- 46423 (CA); Ifeanyi Chukwu Osundu Co. Ltd. V. Akhigbe (1999) 11 NWLR (Pt. 625) I; Okpiri V. Jonah (1961) 1 SCNLR 174; Woluchem V. Gudi (1981) 5 SC 291; Nwobodo V. Onoh (1984) 1 SCNLR 1; SPDC Nig. Ltd V. Amadi (2010) 13 NWLR (Pt.1210) 82; Nneji V. Chukwu (1996) 10 NWLR (Pt.478) 265; Oto V. Adojo (2003) 7 NWLR (Pt 820) 636.
RESOLUTION OF ISSUES ONE AND TWO
My lords, issues one and two deals with the evaluation of evidence and findings of the Court below. In law, an appeal or cross-appeal as the case may be challenging the evaluation and finding of a trial Court is ordinarily a call on this Court to re-evaluate the evidence led before the trial Court to arrive at proper finding of facts should it turn out that proper evaluation had not been carried out by the trial Court. Thus, unless and until the appellate Court comes to the conclusion that the trial Court had not carried out its duty of proper evaluation and ascription of probative value to the evidence before it, the duty of the appellate Court to re-evaluate the evidence on the printed records would not arise. The law is that for a an appellate Court to embark on such a duty it must be demonstrated that the Court below had either not carried out its duty of evaluation of the evidence led before it or had carried out an improper evaluation of the evidence and had arrived at findings which are perverse, and which ought in law to be set aside so that proper findings as dictated by the proved evidence as in the printed record are made by the appellate Court in the interest of justice and to avoid the perpetuation of injustice should the perverse judgment of the trial Court be allowed to stand. See Woluchem V. Gudi (Supra). See also Michael Hausa V. The State (1994) 7-8 SC 144. See also Guardian Newspaper Ltd. V. Rev. Ajeh (2011) 10 NWLR (Pt. 1256) 574 @ p. 582; Prince Ugoh Michael V. Access Bank of Nigeria Plc. (2017) LPELR – 41981(CA) per Georgewill JCA.
Now, in considering issues one and two together, certain pertinent questions must be answered based on either the findings of the Court below or upon re-evaluation of the evidence in the printed records if need be. Happily, the trial before the Court below was one conducted in an Originating Summons in which there were no oral evidence and all the evidence were in the form of affidavit and documentary evidence and thus, obviating the issue of credibility of witnesses most often associated with oral testimony.
At the Court below, the parties filed and exchanged affidavit, counter-affidavit and further affidavit in the Origination Summons filed by the Cross-Appellant and the 5th Cross-Respondent as Claimants against the 1st-4th Cross-Respondents as Defendants. The Court below duly heard the parties and on 16/1/2020, it delivered what it captioned as ‘Ruling/Judgment’ wherein it held inter alia thus:
“…It is of note that the appointment of the 2nd Plaintiff as Receiver was not made by the 1st Plaintiffs under the provisions of the AMCON Act. As can be seen from Exhibit AMCON CANVASS 10, the appointment was made under the provisions of the Deed of All Asset Debenture. I believe that the provisions of Section 396(1)(a) of CAMA applies. The question is: what is the effect of non-compliance? In my view, the service of the notice of appointment of a Receiver is to activate the provisions of Section 397 of CAMA which requires the debtor to comply with the requirements therein. In my view, the failure of the Receiver to inform the Defendants of his appointment is not a ground affecting the validity of the appointment or competence of the Suit…” See pages 745-746 in Volume II of the Records of Appeal
On the affidavit and documentary evidence of the parties in the light of the findings of the Court below in relation to the issues in this Cross-Appeal, coupled with the submissions of counsel for the parties, the following pertinent questions must be answered to lead to the due resolution of the two issues for determination in this Cross-Appeal, namely: Under what law or legal regime was the Cross-Appellant/Respondent appointed as Receiver for the 1st Cross-Respondent by the 5th Cross–Respondent? Was the Cross-Appellant required by law to give notice of his appointment by the 5th Cross-Respondent as Receiver for the 1st Cross-Respondent to the 1st Cross–Respondent? Was the property in question situate at 11A, Tiwatayo Street, off Orelope Bus-Stop, Egbeda, Lagos State, whether belonging to any or all of the 1st-4th Cross-Respondents, pledged as a security for the facilities granted to the 1st Cross-Respondent by Skye Bank Plc.? Can the 2nd-4th Cross-Respondents be held liable for the debts of the 1st Cross-Respondent to the 5th Cross–Respondent? and Did the Cross-Appellant and the 5th Cross-Respondent prove by credible evidence their entitlement to an order of attachment of the property in question in satisfaction of the credit facilities granted to the 1st Cross-Respondent? I shall answer these pertinent questions ad seriatim, commencing with the first and second questions anon and together!
Under what law or legal regime was the Cross-Appellant appointed as Receiver for the 1st Cross-Respondent by the 5th Cross-Respondent and was the Cross-Appellant required by law to give notice of his appointment by the 5th Cross-Respondent as Receiver for the 1st Cross-Respondent to the 1st Cross-Respondent? Now, by Section 396(1) of the Companies and Allied Matters Act, 2004, it is provided inter alia thus:
“Where a Receiver or Manager of the whole or substantially the whole of the property of a company (hereafter in this Section and in Section 397 of this Act referred to as “the Receiver”) has been appointed on behalf of the holders of any debentures of the company secured by a floating charge, then subject to the provisions of this Section and of Section 397 of this Act – the Receiver shall forthwith send notice to the company of his appointment and the terms…”
However, by Section 48(1) and (2) of the Asset Management Corporation of Nigeria Act, 2010 (as amended) it is provided thus:
“1. The Corporation shall have power to act as, or appoint a Receiver for a debtor company whose assets have been charged, mortgaged or pledged as security for an eligible bank asset acquired by the Corporation.
2. A Receiver under this act shall have power to (a). Realize the assets of a debtor company; (b). Enforce the individual liability of the shareholders and directors of the Debtor’s Company and; (c). Manage the affairs of the debtor company.”
It has been contended for the Cross-Appellant that his appointment by the 5th Cross-Respondent as Receiver for the 1st Cross-Respondent was done pursuant to the powers of the 5th Cross-Respondent under Section 48 of the AMCON Act, 2010 (as amended) and therefore, no notice of his appointment as Receiver was required to be given by him to the 1st Cross-Respondent, contrary to the perverse finding by the Court below that it was done under Section 396 of the Companies and Allied Matters Act, 2004 and thus, notice to the 1st Cross-Respondent was required. The 1st-4th Cross-Respondents will not countenance this submission and had contended that the Cross-Appellant having held out himself, all through the processes filed before the Court below as having been appointed by the 5th Cross-Respondent pursuant to the provisions of the Companies and Allied Matters Act, 2004, cannot now be allowed to present a different case in this Cross-Appeal and was thus bound to give notice of his appointment by the 5th Cross-Respondent to the 1st Cross-Respondent which he failed to do as required of him by law.
Now, the starting point in the consideration of this issue, in my view, is the decision of the Court below on this issue as earlier set out in this judgment, in which the Court below held that though the Cross-Appellant was appointed by the 5th Cross-Respondent under the Companies and Allied Matters Act, 2004, the failure of the Cross-Appellant to give notice of his appointment to the 1st-4th Cross-Respondents neither affected the validity of his appointment as Receiver by the 5th Cross-Respondent nor the competence of the Originating Summons. So, what is the real complaint in this ground of the Cross-Appeal? Is it simply to determine under which legal regime the 5th Cross-Respondent exercises its power of appointment of Receiver for debtor companies? Perhaps so!
The next thing to consider is the Deed of Appointment by the 5th Cross-Respondent of the Cross-Appellant as Receiver for the 1st Cross-Respondent, which happily was before the Court below and forming part of the Records of Appeal in this Cross-Appeal but which the Court below merely made reference to but without construing its contents in arriving at its conclusion that the appointment of the Cross-Appellant, the very subject matter of the Deed of Appointment, was done under the Companies and Allied Matters Act, 2004, by reference to the Deed of All Assets Debenture only. In the Deed of Appointment of the Cross-Appellant by the 5th Cross–Respondent, which was Exhibit AMCON Canvass 10, it is stated inter alia thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”> </br<>
“Deed of Appointment of Receiver Pursuant to Section 48 of the AMCON Act 2010…Whereas by virtue of the provisions of Asset Management Corporation Act, 2010, as amended in 2015, and the guidelines made thereunder, the Corporation acquired from the defunct Skye Bank Plc. all the rights, interest and choses in action with respect to the outstanding indebtedness of Canvass farms Nigeria Ltd… The Corporation now wishes to exercise its powers to appoint a receiver by virtue of the above mentioned deed of all Asset debenture and under Section 48 of the AMCON ACT,2010 (as amended)… NOW THIS DEED WITNESSES AS FOLLOWS: pursuant to its statutory powers under Section 48 of the AMCON ACT, 2010, the Corporation hereby appoints Uthman Adeniyi as Receiver in respect of all the assets of the company conferred with all the powers specified in Section 48 of the AMCON ACT, 2010 as amended…in exercising the powers conferred above, the receiver shall be in all circumstances, accountable totally to the Corporation having regard to Section 60(Z) of the AMCON ACT, 2010… the Receiver hereby consents to be solely bound on this instruction by the AMCON Act, 2010 to the exclusion of any other law particularly the Companies and Allied Matters Act, 2010…”
Now, it is in the face of the very clear wordings in the above Deed of Appointment by the 5th Cross-Respondent of the Cross-Appellant as Receiver for the 1st Cross-Respondent that I find the conclusion of the Court below, that by mere reference to the Deed of All Asset Debenture executed by the 1st Cross-Respondent in favor of Skye Bank Plc., long before the 5th Cross-Respondent came into the picture on the purchase of the eligible bank asset from Skye Bank and in appointing the Cross-Appellant was under the Companies and Allied Matters Act, 2004, very incongruous and not flowing from the proved evidence before it and I so hold. There is the provision of Section 48(1) and (2) of the Asset Management Corporation of Nigeria Act, 2010 (as amended), as copiously referred to in the Deed of Appointment of the Cross-Appellant as Receiver for the 1st Cross-Respondent by the 5th Cross-Respondent, by which the powers of the 5th Cross-Respondent to appoint Receivers is governed clearly not by the provisions of the Companies and Allied Matters Act, 2004, but pursuant to the special powers to do so donated to it by the AMCON Act, 2010 (as amended), which is indeed a parallel statute that enables the 5th Cross-Respondent to act without recourse to the general provisions of the Companies and Allied Matters Act, 2004.
I have taken time to scan through the provisions of the AMCON Act, 2010 (as amended), which is the specific legal regime under which AMCON was both set up and operates, and there is no provision requiring either AMCON or a Receiver appointed by it for a Debtor Company to give notice of his appointment to the Debtor Company. Thus, in law and I so hold, a Receiver appointed by the 5th Cross-Respondent is bound to abide by the provisions of Section 48 of the AMCON Act, 2010 (as amended) and this is so because in law, the express mention of a thing in an enactment is to the exclusion of all others, coupled with the fact that the AMCON Act, 2010 (as amended), is a latter legislation to the Companies and Allied Matters Act, 2004 in relation to the powers of AMCON and in the event of any conflict or inconsistency between the two enactments as it relates to the powers of AMCON, the latter would prevail. See 60(Z) of the AMCON Act, 2020 (as amended by the AMCON Act 2015), which provides thus:
“Where any other enactment or law is inconsistent with the provisions of this Act, the provisions of this Act shall prevail.”
In A.G. Ondo State V. A.G. Ekiti State (2001) LPELR-622 (SC), the Supreme Court dealt with the issue of exclusion of things not expressly stated in an enactment and had expatiated inter alia thus:
“… This is in accord with the accepted principle of interpretation expressed in the Latin maxim expressio unius est exclusio alterius or expressum facit cessare taciturn. The two related principles mean firstly that “to state a thing expressly ends the possibility that something inconsistent with it is implied.” Secondly, “to express one thing is impliedly to exclude another” which is an aspect of the latter. This principle of construction is applied where a statutory proposition might have covered a number of matters but in fact mentions only some of them. Unless those mentioned are mentioned only as examples, or ex abundanti cautela, or for some other sufficient reason, the rest are taken to be excluded from the proposition.”
Now, it is true, and must always be borne in mind whenever the need for construing the powers of AMCON in the light of the AMCON Act, 2010, as amended arises, that AMCON itself is a child of necessity and created to checkmate, and thus, avoid the total collapse of the Nigerian Financial System and ultimately the Nigeria Economy after the unprecedented Banking crisis of 2009. AMCON is thus a special purpose vehicle carefully and thoughtfully designed and birthed by law to meet the purpose of ensuring that never again should the Nigerian Financial System, and indeed the Nigerian Economy, be ever threatened so grievously as it happened in 2009 due to unregulated debts management regimes resulting into humongous bad debts that almost collapsed the entire financial system and economy of Nigeria.
Thus, the law setting up and ensuring AMCON of the unhindered exercise of its powers are therefore, not only special but in some way extraordinary and far reaching in effect much more than that the usual Companies and Allied Matters Act, 2004. AMCON mainly, specifically and specially, operates under the AMCON Act, 2010 (as amended) and ancillary under the Companies and Allied Matters Act, 2004, which is more of general application to it. Therefore, whenever the issue becomes as between the AMCON Act, 2010 (as amended) and the Companies and Allied Matters Act, 2004, in relation to the powers of AMCON, it is the AMCON Act, 2010 (as amended), that would prevail and be applied. See 60 (Z) of the AMCON Act, 2020 (as amended by the AMCON Act 2015).
However, be the above as it may, it is of utmost importance to note that ‘Receivership’ under the AMCON Act 2010 (as amended) is not of a much radical difference from receivership generally and under the Companies and Allied Matters Act, 2004. By a community reading of the provisions of Section 34, 35 and 48 of the AMCON Act, 2010 (as amended), AMCON can either act as a receiver or appoint another person as a receiver and thus, steps into the shoes of an eligible financial institution under the relevant Deed of All Assets Debenture upon becoming entitled to realize its security. Now, the only seeming difference it does appear to me is that by the provisions of Section 48 (2) & (3) of the AMCON Act, 2010 (as amended), a Receiver appointed by AMCON would automatically become a Receiver-Manager, quite contrary to the general position and under the Companies and Allied Matters Act, 2004, wherein unless a Receiver is also appointed as a manager he would lack the power to manage the affairs of the Debtor’s Company since ordinarily in law, a Receiver has only the power to realize the assets of the Debtor’s Company with a view to repayment of the crystallized debts. Thus, a Receiver-Manager appointed under the AMCON Act, 2010 (as amended), is statutorily empowered to take possession of and protect the property under his receivership, to receive rents and profits and to discharge all outgoings and realize the security for the benefit of those on whose behalf he is appointed. See PIB Limited v. Trade Bank (Nig) Plc (2009)13 NWLR (Pt1159) 577.
My lords, apparent from these enormous powers, including the very crucial power to manage the affairs, exercisable over all assets and the entire undertakings of the Debtor Company is the legal implication that while generally the right of the directors of the debtor Company in receivership to deal with its assets not in receivership and other matters is preserved, in receivership under the AMCON Act, 2010 (as amended), such power has been taken away upon the appointment of a receiver by AMCON. Thus, the Directors of the Debtor’s Company under the receivership of an AMCON appointed receiver no longer has the liberty, right or power to deal with the assets of the Debtor’s Company, more particularly in respect of all the charged assets and entire undertaking of the debtor Company. See Cansco Dubai Llc V. Seawolf Oilfield Services Ltd & Anor (2018) LPELR – 43674(CA).
There was therefore, no any legal requirement incumbent on the Cross-Appellant to, as erroneously held by the Court below, give any notice of his appointment by the 5th Cross-Respondent as Receiver for the 1st Cross-Respondent to the 1st Cross-Respondents as is required under Section 396 (1) of the Companies and Allied Matters Act, 2004, which is not the applicable legislation in the appointment of the Cross-Appellant by the 5th Cross-Respondent as Receiver for the 1st Cross-Respondent made pursuant to Section 48 of the AMCON Act, 2010 (as amended) and I so firmly hold. It is true that a party must be consistent and cannot be allowed make a different or new case on appeal from the one presented before the trial Court, yet, a failure by a trial Court to put in proper perspective the case put forward by a party does not and cannot preclude the party so affected from putting forward his case in proper context and perspective before the appellate Court so that proper resolution of the case can be arrived at as dictated by the evidence and the ends of justice.
The issue of the powers of AMCON as being under the AMCON Act, 2010 (as amended), was copiously placed before the Court below by virtue of Exhibit AMCON Canvass 10, the very Deed of Appointment of the Cross-Appellant by the 5th Cross-Respondent as Receiver for the 1st Cross-Respondent. It therefore neither constitutes a new or different case being made in this appeal nor amounted to inconsistency on the part of the Cross-Appellant as vehemently but erroneously contended by the learned counsel for the 1st-4th Cross-Respondents. Thus, all the decided authorities, ranging from Adejumo V. Agumagu (2015) LPELR-24502 (CA); Garuba V. Omokhodion (2011) 14 NWLR (Pt.1269) 145; Oseni V. Union Bank of Nigeria & Anor (2018) LPELR -44664 (CA); Salawu Ajide V. Kadiri Kelani (1985) 3 NWLR (PT. 12) 248; FBN V. Songonuga (2007) 3 N.W.L.R. (Pt. 1021) 230; ACB Intl Bank Plc. V. Adiele (2013) LPELR-21164. Atanda V. Comm., L.H., Kwara State (2018) 1 NWLR (Pt. 1599) 32; Dagaci of Dere V. Dagaci of Ebwa (2006) 7 NWLR (Pt. 979) 382; Ukpong V. Commissioner for Finance (2006) 19 NWLR (Pt.1013) 187; Eze V. Eze (2010) LPELR-4546 (CA); Iroegbu V. Okwordu (1990) 21 NSCC (Pt.3) 377, relied upon by the 1st-4th Cross-Respondents, though they remain good law, are of no avail to the 1st-4th Cross-Respondents in this Cross-Appeal.
Now, was the property in question situate at 11A, Tiwatayo Street, off Orelope Bus-Stop, Egbeda, Lagos State, whether belonging to any or all of the 1st-4th Cross–Respondents, pledged as a security for the facilities granted to the 1st Cross–Respondent by Skye Bank Plc.? It was vehemently contended for the 1st-4th Cross-Respondents that the Court below was right in refusing to recognize the appointment of the Cross-Appellant as Receiver in respect of the property located at 11A, Tiwatayo Street, off Orelope Bus-Stop, Egbeda, Lagos State because the said property belongs to the 2nd Cross-Respondent and not to the 1st Cross-Respondent and was neither at any time pledged to the 5th Cross-Respondent nor executed any Deed of Legal Mortgage in favor of the 5th Cross-Respondent over the said property. The Cross-Appellant will not countenance the above submission and it was equally vehemently contended on his behalf that the said property was duly pledged as security for the term loan availed to the 1st Cross-Respondent by Skye Bank Plc., and therefore, forms part of the collateral securities that can be called in by the 5th Cross-Respondent in satisfaction of the indebtedness of the 1st Cross-Respondent.
My lords, these are no doubt very interesting arguments by learned counsel to the parties and the resolution of which can only be found in the hard evidence as placed before the Court below as can be seen in the printed Records of Appeal. There was before the Court below in Exhibit AMCON Canvass 5 at page 70 in Volume I of the Records of Appeal, a letter of undertaking dated 11/5/2009 and addressed to Skye Bank Plc., and written by the Solicitors to the 2nd Cross-Respondent acting on his behalf and stating as follows:
“Dear Sir,
LETTER OF UNDERTAKING IN RESPECT OF THE PROCESSING OF CERTIFICATE OF OCCUPANCY ON PROPERTY BELONGING TO ENGINEER ANDREW OSHAME AND SITUATE AT 11, TIWATAYO STREET, EGBEDA, LAGOS. Kindly refer to the above-headed matter. We are solicitors to Engineer Andrew Oshame, the bona-fide owner of the property known and described as 11, Tiwatayo Street, Egbeda, Lagos, hereinafter referred to as our Client and on whose behalf and instruction we now relate with your Bank. We have been informed by our Client that his said property has been pledged as collateral on a facility that is being facilitated with your Bank. We hereby inform you that we are solicitors engaged by our client in the processing of Certificate of Occupancy in respect of the said property. Kindly be further informed that the said processing has reached in advanced stage and we expect the certificate to be ready for collection not later than a maximum of two months from now. Kindly find herewith attached copies of the acknowledgement of Receipt with the following details: Ref. No.LU/AP/C/54961, Application Form No. 004704 and Receipt No. 7212216 in respect of the processing. Also attached are copies of Receipt No 3037515/NJPLHRH of 18/7/08 for Capital Contribution in the sum of N26,800.00 and Receipt No 3037149FOORJGY of 18/7/08 for Publication in the sum of N10,000.00. We accordingly hereby undertake, on our client’s instruction, to deliver the Certificate of Occupancy when issued or within three months hereof to your Bank, failing which we shall accept the Bank’s right to debrief us of our Client’s instruction to procure the said title document. We further accept for this undertaking to be irrevocable except with the written consent of your Bank. Thanking you for your usual co-operation. Yours faithfully, PP: DUNNI ODEYINKA & ASSOCIATES”
In the light of the above facts coming from the Solicitors of the 2nd Cross-Respondent himself, can it be said that there was any sincerity in the submission by learned counsel for the 1st-4th Cross-Respondents that there was no time the said property was pledged as collateral security by the 2nd Cross-Respondent for the credit facilities availed and disbursed to the 1st Cross- Respondent and should this Court accept such a submission except with a pinch of salt? I think not! On the credible evidence before the Court below therefore, the simple answer to the question; was the property in question situate at 11A, Tiwatayo Street, off Orelope Bus-Stop, Egbeda, Lagos State, whether belonging to any or all of the 1st-4th Cross–Respondents, pledged as a security for the facilities granted to the 1st Cross-Respondent by Skye Bank Plc., is, of course, a resounding Yes! I hold that the said property was duly pledged by the 2nd Cross-Respondent as part of the Security for the term loan made to the 1st Cross-Respondent by Skye Bank Plc., the predecessor in title to the debts of the 1st Cross-Respondent.
So, can the 2nd-4th Cross-Respondents be held liable for the debts of the 1st Cross-Respondent? Generally, in law, by reason of the incorporation of a company under the Companies and Allied Matters Act, 2004, neither a shareholder nor a director nor a member of an incorporated Company can be held personally liable for the liabilities and/or debts of the Company beyond the unpaid value of his shares unless the veil of incorporation is lifted on grounds of fraud, illegality, sham etc. See Vibelko (Nig.) Ltd V. NDIC (2006) 12 NWLR (Pt. 994) 280 @ pp. 293 – 294, where it was succinctly held inter alia as follows:
“There is a clear distinction between a company and its directors and members in terms of corporate liability. Upon incorporation of a company it becomes a body corporate and in the eyes of the law, a person is distinct from its members and shareholders. Therefore, a director of an incorporated company cannot be held liable for the loan granted in favor of the company unless he is either a surety or guarantor of the loan granted to the company. A company is an artificial entity, which is separate and distinct from its shareholders and directors, or from the members and organs of the company.”
See also, Solomon V. Salomon & Company (1879) AC 22; Alhaji Mohammed Abacha V. A.G. Federation (2013) LPELR-21749; New Nigerian Newspapers V. Agbomabini (2013) LPELR-20741(CA). See also, Nigerian Deposit Insurance Corporation V. Financial Merchant Bank Limited (1997) 4 NWLR (Pt. 501) 509; Commercial Bank (Credit Lyonnais) Nig. Ltd V. Okoli (2009) 5 NWLR (Pt. 1135) 446; Aso Motel Kaduna V. Dayo Deyemo (2006) 7 NWLR (PT 978) 87.
However, under the AMCON Act, 2010 (as amended), in 2019, the law now as it relates to AMCON and its Debtor Companies is that that once it is established that a company is indebted to AMCON, it is allowed to deem the Shareholders, Directors, and Creditors of such debtor company as Debtors and attach their properties in satisfaction of the debt. See Section 61 of the Asset Management Corporation of Nigeria (Amendment No. 2) Act, 2019 which provides thus:
“Debtor or Debtor Company means any borrower, beneficiary of an eligible bank asset and includes a guarantor of a debtor, guarantor or director of a debtor company”
See also, Imasekha V. AMCON & Ors. (2018) LPELR- 45950 (CA)
My lords, the above provision of the Asset Management Corporation of Nigeria (Amendment No. 2) Act, 2019, clearly demonstrates the intention of the legislature, and whether such provision ought to be the law and/or whether it appears to be or is really drastic or not are completely immaterial to the resolution of this question and so long as it remains the law as it is and not as it ought to be, and unless it is repealed or if called upon to strike it down in appropriated and deserving cases, and since the words are clear and unambiguous, the Court is bound to interpret it purposively to give effect to the clear intention of the legislature as between the parties before it. See PDP V. INEC (1999) LPELR (24856) 1 per Wali JSC, @ pp. 48 – 49. See also Ikuforiji V. FRN (2018) LPELR-43884; Ifezue V. Mbadugha (1984) LPELR-1437; Abioye V. Yakubu (1991) LPELR – 43 (SC).
It follows therefore, and I so hold that under the prevailing extant laws governing the powers and operations of AMCON, the 2nd-4th Cross-Respondents, can if it is established that the 1st Cross-Respondent is indebted to the 5th Cross-Respondent be deem as ‘Debtors’ and their properties can be attached in satisfaction of the debt. See Section 61 of the Asset Management Corporation of Nigeria (Amendment No. 2) Act 2019. See also, Imasekha V. AMCON & Ors. (2018) LPELR- 45950 (CA)
My lords, and now finally, did the Cross-Appellant and the 5th Cross-Respondent prove by credible evidence their entitlement to an order of attachment of the property in question in satisfaction of the credit facilities granted to the 1st Cross–Appellants? The Court below in granting the reliefs claimed by the Cross-Appellant and the 5th Cross-Respondent as Claimants against the 1st-4th Cross-Respondents as 1st-4th Defendants had held inter alia thus:
“I therefore answer the sole issue for determination in the positive, that is to say that having regard to the provisions of the Deed of All Asset Debenture dated the 10th of February, 2011, created in favour of Skye Bank Plc (which was transferred to the 1st Plaintiff), the 1st Plaintiff is entitled to appoint a receiver over the affairs and endeavours of the 1st Defendant. In paragraph 13A of the affidavit in support the Plaintiffs deposed to the fact that the legal Mortgage on the property at 11A Tiwatayo Street off Orelope Bus Stop, Egbeda Lagos was not executed. Subject to the above, the Plaintiffs are granted all the reliefs sought in this suit.” See page 751 in Volume II of the Records of Appeal.
From the above findings, it seems clear to me that the Court below found the claims of the Cross-Appellant meritorious and granted it and expressed its doubts but without making any finding whether the said property in question situate at 11A Tiwatayo Street off Orelope Bus Stop, Egbeda Lagos is to be attached or not. The Court below found as fact that the legal mortgage in respect of the said property had not been executed and therefore, made its order of attachment “subject to the above” and whatever the Court below meant by that but for me it means simply that the claim for the attachment of the said property was refused because of no legal mortgage had been executed over it in favor of the 5th Cross-Respondent’s predecessor in title, Skye Bank Plc.
So, was the Court below right when having found that the Cross-Appellant and the 5th Cross-Respondent had established the indebtedness of the 1st Cross-Respondent to it and the said property being one of collateral securities pledged by the 1st-4th Respondents for the credit facilities availed and disbursed to the 1st Cross-Respondent declined and or refused to make the order of attachment of the said property merely on the ground that the legal mortgage over it had not been executed, even in the face of the clear evidence of the undertaking by the Solicitors for the 2nd Cross-Respondent to do everything within their power to perfect the security in line with the clear instructions of the 2nd Cross-Respondent to them to do so? I think not!
Now, in Exhibit AMCON Canvass 4 at page 65 in Volume I of the Records of Appeal, the 1st Cross-Respondent had covenanted itself to Skye Bank Plc., the predecessor in title to the 5th Cross-Respondent inter alia thus:
“After the security hereby constituted as become enforceable, the Company shall, from Lime to time, and at all limes execute, make and do all such assurance(s) and things as the Bank may reasonably require for facilitating the realization of the said assets and for exercising all the powers, authorities and discretion hereby conferred on the Bank and in particular the Company shall: a. Execute all transfers, assignments and assurance of the said assets whether to the Bank or to its nominees; b. Perform or cause to be performed all acts and things requisite or desirable for the purpose of giving effect to the expect of the said powers, authorities and discretion…”
In my finding therefore, on the unchallenged evidence believed even by the Court below, the Cross-Appellant and the 5th Cross-Respondent proved and thereby established their legal right to attach and sell the said property in satisfaction of the outstanding indebtedness of the 1st Cross-Respondent to the 5th Cross-Respondent/Appellant in the humongous sum of N282,780,180.34, which was even less all interest and charges on the principal sum. Thus, notwithstanding the non-execution of the Legal Mortgage, the property in question having been duly pledged as collateral security by the 2nd Cross-Respondent created at least an equitable title in favor of the 5th Cross-Respondent enforceable in a Court of law by an order of specific performance obligating the 2nd Cross-Respondent to execute the legal mortgage since the mere fact that a legal mortgage has not been executed does not change the fact that in law, an equitable mortgage has been created in favor of the 5th Cross-Respondent.
I hold therefore, that the Cross-Appellant and the 5th Cross-Respondent, having proved and established their case as required of them by law, were entitled to all the reliefs claimed against the 1st-4th Cross-Respondents, including the attachment of the said property situate at 11A, Tiwatayo Street, off Orelope Bus Stop, Egbeda Lagos, and used as part of the collateral security for the term loan granted to the 1st Cross-Respondent by Skye Bank Plc., notwithstanding whether the said property belongs to the 1st Cross-Respondent or the 2nd Cross-Respondent, who as a Director of the 1st Cross-Respondent is equally liable as a debtor to the Cross-Appellant. See Section 61 of the Asset Management Corporation of Nigeria (Amendment No. 2) Act, 2019. See also, Imasekha V AMCON & Ors. (2018) LPELR- 45980 (CA).
Consequently, that part of the judgment of the Court below Cross-Appealed against was perverse and fell far short of the requirement of a valid judgment under the law. See Ogolo and Ors V. Ogolo and Ors (2003) LPELR – 2309 (SC), where the Supreme Court per Kastina-Alu, JSC., (as he then was but later CJN), had reiterated inter alia thus:
“However, there are certain essential components which a good judgment must incorporate inter alia, set out the nature of the action before the Court; the issues in controversy; a review of the case for the parties; a consideration of the relevant law raised and applicable to the case; specific findings of the fact, and conclusions. The reasons for arriving at the conclusions must also be stated”
See also, Igwe V. Alvan Ikoku College of Education, Owerri (1994) 8 NWLR (Pt.363) 459; Adeyemo V. Arokopo (1988) 2 NWLR (Pt. 79) 703; Imogiemhe V. Alokwe (1995) 7 NWLR (Pt. 409) 581; Akinfolarin V. Ademola (1994) 3 NWLR (Pt.335) 659.”
In the light of all I have stated and found as above, I hereby resolve issues one and two in favour of the Cross-Appellant against the 1st-4th Cross-Respondents. In law, a decision or finding or conclusion reached is perverse amongst other grounds if it does not flow from the established facts from the evidence before the Court or it takes into consideration matters extraneous to the issues placed before the Court in evidence by the parties or it misapprehends and misapplies the applicable law to the established facts in evidence before it. See Obajimi V. Adediji (2008) 3 NWLR (Pt. 1075) 1 @ p. 19. See also, C.S.S Book Shop Ltd. V. The Regd. Trustees of Muslim Community in Rivers State (2006) 4 SCM 310.
On the whole therefore, having resolved issues one and two for determination in this Cross-Appeal in favor of the Cross-Appellant, against the 1st-4th Cross Respondents, I hold that the Cross-Appeal has merit and ought to be allowed. Accordingly, I hereby so allow it.
In the result, that part of the judgment of the Federal High Court, Lagos Judicial Division; Coram: I. N. Oweibo J, in Suit No. FHC/L/CS/415/2019: Asset Management Corporation of Nigeria & Anor V. Canvass Farms Nigeria Limited delivered on 16/1/2020, wherein, the Court below held that the appointment of the Cross-Appellant by the 5th Cross-Respondent was made pursuant to Section 396 (1) of the Companies and Allied Matters Act, 2004, and also refusing to attach the 1st-4th Cross-Respondents’ property situate at 11A, Tiwatayo Street, off Orelope Bus-stop Egbeda, Lagos on the ground that the legal mortgage over the said property was not executed by the 1st-4th Cross-Respondents, is hereby set aside.
In its stead, the appointment of the Cross-Appellant as a Receiver by the 5th Cross-Respondent, was made under the provisions of the AMCON Act, 2010 (as amended), and thereby constituted the Cross-Appellant as both Receiver and Manager of the 1st Cross-Respondent.
Consequently, it is hereby declared that, upon the appointment of the Cross-Appellant, Adeniyi Mohammed Uthman as the Receiver of the 1st Cross-Respondent, Canvass Farms Nigeria Limited on 28/11/2017, by the 5th Cross-Respondent (AMCON), the 2nd, 3rd and 4th Cross-Respondents or any Director or Shareholder, Officer or employee of the 1st Cross-Respondent have no rights, powers or authority to enter into or remain in possession or deal in any manner whatsoever with the asset of the 1st Cross-Respondent currently lying and being at 11A, Tiwatayo Street, off Orelope Bus-Stop, Egbeda Estate, Lagos State, without recourse to the Cross-Appellant, Adeniyi Mohammed Uthman, the Receiver of the 1st Cross-Respondent duly appointed by the 5th Cross-Respondent (AMCON) under the AMCON Act, 2010 (as amended), pursuant to Article 4 of the Deed of All Assets Debenture executed by the 1st Cross-Respondent.
There shall be no Order as to cost.
FREDERICK OZIAKPONO OHO, J.C.A.: I had a preview of the judgment just delivered by my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA, and I am in agreement with his reasoning and conclusions in resolving issues one and two for determination in the 2nd Cross-Appeal in favour of the Cross-Appellant against the 1st to 4th Cross-Respondents and consequently holding the Cross-Appeal as meritorious. I abide by the consequential orders.
FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of reading before now, the judgment just delivered by my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA, I agree with the reasons advanced therein and the inevitable conclusion that the Cross-Appellant acted within the powers donated to it by Sections 48 of the Asset Management Corporation Act, 2010 (as amended). The AMCON Act does not make provision for giving notice of Appointment of a Receiver as provided for under the Companies and Allied Matters Act. The provisions of the AMCON Act will therefore prevail because the law is trite that where there are two provisions, one specific and the other general, covering the same subject matter, the specific provision must apply. See ARAKA VS. EGBUE (2003) 17 NWLR (PT. 848) 1; ATTORNEY-GENERAL, KWARA STATE VS. LAWAL (2018) 3 NWLR (PT. 1606) 266; SCHROEDER VS. MAJOR COMPANY NIGERIA LIMITED (1989) 2 NWLR (PT. 101) 1.
The provisions of the Asset Management Corporation Act contain specific provision on the power of the Cross-Appellant to appoint a Receiver. It will therefore prevail over the general provisions provided for by the Companies and Allied Matters Act.
I adopt the fuller reasons given in the lead judgment as mine in agreeing that this Cross-Appeal has merit and should be allowed. I abide by all the orders contained in the lead judgment.
Appearances:
Akinyemi Olujinmi, Esq. For Appellant(s)
Harrison Ogalagu, Esq. – for 1st – 4th Cross-Respondents
A. M. Uthman, Esq. – for 5th Cross-Respondent For Respondent(s)