CORAM
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU
PARTIES
ABUJA INTERNATIONAL HOTELS LIMITED & ANOR
APPELLANTS
BUREAU OF PUBLIC ENTERPRISES & ANOR
RESPONDENTS
AREA(S) OF LAW
APPEAL, ACTION, COURT, CONTRACT, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
This is an appeal against the decision of the of the Federal High Court, Abuja Division, per G. O. Kolawole, J (as he then was), hereinafter referred to as the lower Court, wherein the Plaintiffs’ (Appellants) claims were dismissed. The 1st Appellant was a public limited liability company solely owned by the Federal Government of Nigeria before it was privatized and sold to the 2nd Appellant sometime in November 2006 under the Privatization and Commercialization Program of the Federal Government of Nigeria which was carried out by the 1st Respondent under its enabling Act, Public Enterprises (Privatization and Commercialization) Act. By the Share Sale and Purchase Agreement, Exhibit Hotel-1, the 2nd Appellant acquired 90% equity shares in the 1st Appellant while the Federal Government of Nigeria retained 10% equity shares in the 1st Appellant and other obligations were created in the said agreement. In clause 7.2 of Hotel-1, it was agreed that the 2nd Appellant shall not within the period of 5 years of privatization and sale of the shareholdings of the Federal Government of Nigeria in the 1st Appellant to the 2nd Appellant sell or transfer the shareholdings without the consent of the 1st Respondent being sought. In clause 7.3 of Hotel-1, it was also agreed that the 2nd Appellant shall allow the 1st Respondent to monitor post acquisition plan.
Sometime in September 2012, the House of Representatives wrote to the 1st Appellant of the intention of its committee on monitoring of the public enterprises sold under the Privatization and Commercialization Programme of the Federal Government of Nigeria to visit the 1st Appellant in order to carry out oversight functions of the National Assembly. Exhibit Hotel 2. Based on this refusal by 1st Appellant to allow the National Assembly to carry out the oversight functions, the 1st Respondent reacted by its letter threatening to revoke the sale of the 1st Appellant to the 2nd Appellant that culminated into the action filed at the trial Court. Upon hearing the Originating Summons as adopted by the parties and also adumbrated on their Written Addresses, the learned trial Judge, on the 13th day of June, 2016, dismissed the Plaintiffs’ (Appellants) claims. The Plaintiffs/Appellants, being dissatisfied with the decision, filed this appeal.
HELD
Appeal dismissed
ISSUES
Whether the learned trial Judge was right when upon the affidavit and documentary evidence before the Court, he dismissed the Appellants’ claims
RATIONES DECIDENDI
PRINCIPAL AND ANCILLARY CLAIMS – EFFECT OF PRINCIPAL AND ANCILLARY CLAIMS IN A SUIT
“Now, it is apparent from reliefs 1, 2 and 3 of the Originating Summons that, the principal reliefs sought are declaratory. The relief for injunction sought is ancillary to or dependent on the success of those declaratory reliefs. Therefore, where those declaratory reliefs fail, the injunctive relief may not be granted.” – Per TSAMMANI, JCA
BURDEN OF PROOF – ON WHOM LIES THE BURDEN OF PROOF IN CIVIL CLAIMS
“It is on that note that I wish to iterate that, the Appellants who were the Plaintiffs in the Court below, had the bounden duty to produce sufficient credible evidence to entitle them to the declaratory reliefs sought. To succeed, the Appellants had to rely on the evidence adduced by them and not on the weakness of the defence, or even failure of the Defendants (Respondents) to adduce any evidence. Indeed, admissions by the Respondents would not avail the Plaintiffs/Appellants, although the Appellant has the liberty to rely on any aspect of the defence that support their case or claim. It therefore means that, in the absence of credible evidence adduced by the Plaintiffs/Appellants, the declaratory reliefs sought could not be granted. See Johnson & Anor. v. INEC & Ors. (2019) LPELR – 49442 (CA); Wing Commander Jibril Bala Adamu (Rtd.) v. Nigerian Airforce & Anor. (2022) LPELR-56587 (SC) and Akaninwo & Ors. v. Nsirim & Ors. (2008) 9 NWLR (Pt. 421) 439. Thus, in GE International Operations (Nig.) Ltd. v. Q. Oil & Gas Services Ltd. (2016) LPELR-47999 (SC), Ngwuta, JSC (of blessed memory) said:
“In an action for declaration of a right, the Plaintiff must satisfy the Court by credible evidence that he is entitled to the right he claims. The claim for declaration cannot be granted on admission of the defendant”.
” – Per TSAMMANI, JCA
PRINCIPLES OF INTERPRETATION – WHETHER WORDS MUST BE GIVEN THEIR LITERAL MEANING WHEN INTERPRETING WORDS IN A STATUTE
“It is the cardinal principle of interpretation of documents that, where the words in a document, or statute are clear and plain, the Court should give it that literal or plain meaning without resort to other technical rule of construction. In doing that, the Court is not permitted to go outside the document in order to find a meaning. In other words, it must confine itself within the four walls of the statute. See Williams v. Williams & Ors. (2014) LPELR-22642 (CA); NNPC v. Mamman Aminu (2013) LPELR – 21395 (CA) and Nwegbu v. Nwegbu (2017) LPELR-42680 (CA). See also Nigerian Army v. Aminun-Kano (2010) LPELR-2013 (SC). Thus, in New Horizon Hotels Limited & Ors. v. Emmanuel Nnamdi Okoye (2018) LPELR-45328 (CA), this Court per M. L. Garba, JCA (as he then was) held that:
“When words and language employed and specifically used by the maker of a document or legislature in a statute are expressly clear, straightforward and unambiguous, leaving no room for any doubt about the purport or intention of the maker or the legislature, they do not require interpretation, but to be assigned and applied in their ordinary and simple grammatical meaning without the need for glosses or interpolation by the Court….”
”- Per TSAMMANI, JCA
PUBLIC ENTERPRISES (PRIVITISATION AND COMMERCIALISATION) ACT – ESTABLISHMENT AND FUNCTIONS OF THE BUREAU OF PUBLIC ENTERPRISES
“The 1st Respondent was thus established by Section 12 of the Public Enterprises (Privatisation and Commercialisation) Act, 2004. The functions of the Bureau are stipulated in Sections 13 and 14 of the Act. Section 13 provides for the functions of the Bureau (1st Respondent) in respect of Privatisation while Section 14 deals with its functions on commercialization. One of the functions of the 1st Respondent as stipulated in Section 13(e) is to: –
“carryout all activities required for the successful issue of shares and sale of assets of the public enterprises to be privatized”.
To effectively actualize this objective, the 1st Respondent is given power under Section 16 of the Act, to inter alia
“enter into contracts or partnerships with any company, firm or person which in its opinion will facilitate the discharge of its functions”.
It is in the exercise of that power that Exhibit “Hotel 1” or “TA1” was executed between the 2nd Appellant and the 1st Respondent for the sale to it (2nd Appellant) of the 1st Appellant (Abuja International Hotels Limited).” – Per TSAMMANI, JCA
TERMS OF A CONTRACT – DUTY OF THE COURT WHEN CONTRUING THE TERMS OF A CONTRACT
“Furthermore, in the construction of the terms of a contract, Courts are bound by the written words of the agreement; and therefore cannot import into the contract extraneous matters not stipulated expressly or even impliedly stipulated in the contract. The duty of the Court is to give effect to the terms of the contract as agreed by the parties. In other words, the duty of the Court is to give effect to or discover the intention of the parties and not to import into the contract ideas not patent in the written words of the contractual document. See Nika Fishing Co. Ltd. v. Lavina Corporation (2008) 16 NWLR (Pt. 1114) 509; City Engineering (Nig.) Ltd. v. FHA (1997) LPELR—868 (SC); Baliol (Nig.) Ltd. v. Navcon (Nig.) Ltd. (2010) LPELR-717 (SC); Ihunwo v. Ihunwo & Ors. (2013) LPELR-20084 (SC) and GTB v. Ogboji (2019) LPELR-47642 (CA). Thus, in Afrotec Technical Services (Nig.) Ltd. v. MIA & Sons Ltd. & Anor. (2000) 15 NWLR (Pt. 692) 730, the Supreme Court held per Iguh, JSC that:
“The law is long settled that in interpreting the provisions of a written contract, no addition thereto or, subtraction therefrom is permissible. The words used must be given effect to and no word should be ignored in the interpretation of the intention of the parties otherwise the Court will be seen as rewriting the agreement between the parties….”
” – Per TSAMMANI
CONTRACT – WHETHER PARTIES TO A CONTRACT ARE BOUND BY THE TERMS OF THEIR CONTRACT
“The parties to the contract are bound by the terms of the contract document. It means therefore, that the 2nd Appellant is bound by Clause 7.3 of Exhibit “Hotel 1” to avail the 1st Respondent the freedom or opportunity to exercise its power of monitoring compliance with the Post Acquisition Plan in relation to the sale of the 1st Appellant.” – Per TSAMMANI
COURT – WHETHER STATEMENTS MADE OBITER CONSTITUTES REASONS FOR DECISION
“I agree with learned senior counsel for the 1st Respondent that, the statement made by the learned trial Judge was merely obiter. It is settled law that a statement made obiter by a Judge in the course of judgment writing does not constitute a reason for his decision. This is particularly so, as in the instant case, when the learned trial Judge comprehensively considered and resolved all the pertinent issues in the matter.” – Per TSAMMANI, JCA
ISSUES FOR DETERMINATION – WHETHER FRESH ISSUES CAN BE RAISED ON APPEAL WITHOUT LEAVE OF APPELLATE COURT – EFFECT OF RAISING FRESH ISSUES ON APPEAL
“The issue on Sections 624 and 625 of the Companies and Allied Matters Act did not arise for determination at the trial. It was introduced for the first time in this appeal by learned counsel for the Appellants. To raise a fresh or new issue, the leave of this Court ought to have been first sought and obtained before raising same. On that note, I hereby hold that the issues canvassed on the effect of the provisions of the Companies and Allied Matters Act (CAMA), are incompetent. Being incompetent, they are hereby struck out.” – Per TSAMMANI, JCA
CASES CITED
Not Available
STATUTES REFERRED TO
Public Enterprise (Privitisation and Commercialisation) Act
Companies and Allied Matters Act