CORAM
BIOBELE ABRAHAM GEORGEWILL,JUSTICE, COURT OF APPEAL
FREDERICK OZIAKPONO OHO, JUSTICE, COURT OF APPEAL
FOLASADE AYODEJI OJO, JUSTICE, COURT OF APPEAL
PARTIES
ASSET MANAGEMENT CORPORATION OF NIGERIA
APPELLANTS
CANVASS FARMS NIGERIA LTD
ANDREW OSHAME
OLUSEGUN MUYIWA
DELE OLUBOYEDE
ADENIYI MOHAMMED UTHMAN
RESPONDENTS
AREA(S) OF LAW
APPEAL, COMPANY LAW, COURT, INTERPRETATION OF STATUTE, JUDGMENT AND ORDER, LAW OF EVIDENCE, MORTGAGE, PRACTICE AND PROCEDURE, STATUTE
SUMMARY OF FACTS
This is a Cross Appeal by the Cross – Appellant, the 1st Respondent in the main appeal, against that part of the judgment of the Federal High Court, Lagos Judicial Division; in Suit No. FHC/L/CS/415/2019: Asset Management Corporation of & Anor V. Canvass Farms Nigeria Limited, wherein the Court below held that the appointment of the 5th Cross – Respondent by the Cross – Appellant 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 2nd Cross – Respondent. The Cross – Appellant was dissatisfied with that part of the said judgment and had Cross – appealed against it to the Court of Appeal, Lagos Judicial Division, vide his Notice of Cross – Appeal containing two (2) Grounds of Appeal.
HELD
Cross-Appeal Allowed
ISSUES
As between S. 396 (1) Companies and Allied Matters Act, 2004 and S.48 (1) of the Asset Management Corporation of Nigeria Act, 2010, which law governs the powers of the Cross – Appellant to appoint Receivers on its behalf?
Whether the failure of the Court below to grant the Cross – Appellant’s prayers to attach and sell the property located at 11A, Tiwatayo Street, off Orelope Bus-Stop, Egbeda, Lagos State to recover its money did not occasion miscarriage of justice?
RATIONES DECIDENDI
BASIS ON WHICH AN APPELLATE COURT CAN EMBARK ON THE DUTY OF RE-EVALUATION OF EVIDENCE
“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 B. A. GEORGEWILL, J.C.A
POSITION OF THE LAW ON THE APPOINTMENT OF A RECEIVER UNDER THE ASSET MANAGEMENT COOPERATION OF NIGERIA ACT, AND THE COMPANIES AND ALLIED MATTERS ACT
“Thus, in law and I so hold, a Receiver appointed by the Cross – Appellant 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 should therefore, in the event of any conflict or inconsistency between the two enactments as it relates to the powers of AMCON, 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 AG. Ondo State V. AG. 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 expression unius est exclusion alterius or expressum facitcessare 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.” –PER B. A. GEORGEWILL, J.C.A
SUPERIORITY OF THE ASSET MANAGEMENT COOPERATION OF NIGERIA ACT OVER THE COMPANIES AND ALLIED MATTERS ACT
“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. Thus, 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, which would prevail, 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. –PER B. A. GEORGEWILL, J.C.A
SIMILARITIES AND DIFFERENCES OF A RECIEVERSHIP UNDER THE ASSET MANAGEMENT COOPERATION OF NIGERIA ACT AND THE COMPANIES AND ALLIED MATTERS ACT
“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 Company since ordinarily in law a Receiver has only the power to realize the assets of the Debtor 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 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 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). –PER B. A. GEORGEWILL, J.C.A
DUTY OF PARTY NOT TO MAKE A DIFFERENT OR NEW CASE ON APPEAL FROM THE ONE PRESENTED BEFORE THE TRIAL COURT
“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“. –PER B. A. GEORGEWILL, J.C.A
LIABILITY OF SHAREHOLDERS AND DIRECTORS UNDER THE ASSET MANAGEMENT COOPERATION OF NIGERIA ACT AS DISTINCT FROM THE COMPANIES AND ALLIED MATTERS ACT
“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 Vibe lko (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. AG. 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. DayoDeyemo (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 Cross – Appellant 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) .’-PER B. A. GEORGEWILL, J.C.A
WHETHER A PROPERTY PLEDGED AS COLLATERAL CAN CREATE AN EQUITABLE TITLE IN FAVOUR OF A PARTY DESPITE THE NON-EXECUTION OF A LEGAL MORTGAGE
“In my finding therefore, on the unchallenged evidence believed even by the Court below, the Cross – Appellant proved and thereby established its legal right to attach and sell the said property in satisfaction of the outstanding indebtedness of the 1st Cross – Respondent to the Cross – 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 Cross – Appellant enforceable in a Court of law by an order of specific performance obligating the 2nd Cross – Respondent to execute the legal mortgage and 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 Cross – Appellant.
I hold therefore, that the Cross – Appellant, having proved and established its case as required of it by law, was 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 to 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- 45950 (CA). -PER B. A. GEORGEWILL, J.C.A
COMPONENTS OF A VALID JUDGMENT
“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. AlvanIkoku 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 B. A. GEORGEWILL, J.C.A
WHEN IS A DECISION OF COURT PERVERSE?
“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. Adeobi (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. –PER B. A. GEORGEWILL, J.C.A
CASES CITED
None
STATUTES REFERRED TO
Asset Management Corporation of Nigeria Act, 2010 (as amended)
Asset Management Corporation of Nigeria (Amendment No. 2) Act 2019
Companies and Allied Matters Act 2004
Court of Appeal Rules 2016