May 15, 2025
Legalpedia Citation: (2013-03) Legalpedia 38638 (CA) In the Court of Appeal Abeokuta Fri Mar 29, 2013 Suit Number: CA/I/34/2013 CORAM H. S. TSAMMANI, J.C.A O. DANIEL-KALIO, J.C.A […]
CORAM
H. S. TSAMMANI, J.C.A
O. DANIEL-KALIO, J.C.A
PARTIES
INCORPORATED TRUSTEES OF NIGERIAN BAPTIST CONVENTION & ORS v.
APPELLANTS
GOVERNOR OF OGUN STATE & ORS
RESPONDENTS
AREA(S) OF LAW
APPEAL, COURT, INTERPRETATION OF STATUTE, JURISDICTION, LAW OF CONTRACT, PRACTICE AND PROCEDURE, STATUTE, WORDS AND PHRASES
SUMMARY OF FACTS
The then Military Administration of Western State of Nigeria promulgated the Education (Post-Primary Institutions) (Special Provisions) Law, Cap.36, Laws of Ogun State which became applicable throughout the State, and by Sections 3(1) and 4(1) of the said Law, opening of private post-primary institutions were prohibited and the existing ones abolished. That was the position until the Ogun State Ministry of Education, Science & Technology, Department of Secondary Schools, conveyed to the Appellants, vide letters all dated the 15/10/2010, the provisional approval of return of the respective schools hitherto taken over by the Ogun State Government pursuant to the Education (Post-Primary Institutions) (Special Provisions) Law (supra). To solidify the action of the Government, a Memorandum of Understanding was entered into between the Government and the various proprietors of the Institutions involved, and who are the Appellants herein. Appellants retook possession of the schools and proceeded to spend huge sums of money in the renovation and development of same. But on the 1st day of June, 2011, the 4th Respondent (the Ogun State House of Assembly), passed a Resolution No.251, adopting a Motion titled “Reversal of Illegal Return of Schools to Initial Owners”, revoking the return of the various schools to the Appellants. And on the strength of the Resolution by the 4th Respondent, the Appellant were informed of the desire of the Ogun State Government to reverse the return of the schools and thereby resume the application of the Education (Post-Primary Institutions) (Special Provisions) Law (supra) to those institutions, hence the Appellants instituted this action before the Ogun State High Court, Abeokuta Judicial Division vide Originating Summons wherein they raised certain questions for determination and sought for declarative and injunctive reliefs, amongst others. At the end of the trial, the Court resolved the issues substantially against the Appellants, dissatisfied with the judgment, the Appellants appealed to the Court of Appeal, Ibadan Division vide their Notice of Appeal containing four (4) Grounds of Appeal.
HELD
Appeal Succeeds in part
ISSUES
1. Whether on a proper construction of Sections 3(1), 4(1) and 5 of the Education (Post-Primary institutions) (Special Provisions) Law of Ogun State, the learned trial Judge was right in holding that the Post-Primary Institutions were not returned to the Appellant by the Respondents.
2. Whether the learned trial Judge was right in holding that the non-publication of the order of return of schools to the Appellants by the Respondents in the State Gazette rendered the return of the schools invalid or incompetent.
RATIONES DECIDENDI
CANONS OF INTERPRETATION – DUTY OF COURT IN CONSTRUING A DOCUMENT TO DISCOVER THE INTENTION OF THE PARTIES
“Now, the general principle of law is that, parties are bound by their agreements. Accordingly, the proper purpose of interpretation of such documents evidencing the agreement(s) of the parties, is to discover the intention of the parties and not to ascribe to the parties what they have not intended by that document. The Court saddled with the duty of construing that document in order to discover the intention of the parties should restrict itself to the words used in the document. In that respect, words or ideas not intended by the parties should not be imported into the document that are not patent on its face, See Obikoya v. Wema Bank Ltd (1991) 7 NWLR (Pt. 201) p.119 at 130; and Amizu v. Nzeribe (1989) 4 NWLR (Pt. 118) p.755. This is so because, the parties to the agreement are presumed to intend what they have in fact written down, and therefore, the words written down by them should be given their ordinary and plain meaning, unless circumstances show or dictate that a particular construction ought to be applied in order to give effect to that particular intention envisaged by the parties. In other words, as a general rule, the document(s) should be accorded their ordinary and plain meaning, so that additional words or clauses not intended by the parties, ought not to be imported into a written agreement or document, unless it is impossible to understand the agreement or document without such additional words or clauses. See U.B.N. v. Nwaokolo (1995) 6 NWLR (Pt. 400) p.127 and U.B.N Ltd v. Prof. Albert Ozigi(1994) 3 NWLR (Pt. 333) p. 385 at 400. PER H. S. TSAMMANI, J.C.A
CANONS OF INTERPRETATION – DUTY OF COURT IN INTERPRETING A DOCUMENT EVIDENCING AN AGREEMENT BETWEEN PARTIES
“It therefore follows that, a document evidencing an agreement between parties must be construed in its ordinary meaning, especially where the language therein is not only plain but admits of only one meaning. Thus, where a document is clear and unambiguous, a Court of law has only the duty of giving strength to the plain words used. In such a situation the Court should avoid searching for an interpretation that is convenient to it or to one of the parties to the agreement. See Anason Farms Ltd. v. Nal Merchant Bank Ltd (1994) 3 NWLR (Pt. 331) p.241. It is in that guise that My Lord, Aka’ahs, JSC in the case of Adiele Ihunwo v. Johnson Ihunwo &Ors (2013) LPELR 2008 4 (SC) summarized the law, thus:
“The meaning to be placed on a contract is that which is the plain, clear and obvious result of the term used in the agreement. See: Aouad v. Kessrawani(1956) NSCC 33. When construing documents in dispute between the parties, the proper course is to discover the intention or contemplation of the parties and not to import into the contract ideas not patent on the face of the document. See: Amadi v. Thomas Aplin Co., Ltd. (1972) 7 NSCC 262. Where there is a contract regulating any arrangement between the parties, the main duty of the Court is to interpret the contract to give effect to the wishes of the parties as expressed in the contract document. See Oduye v. Nigeria Airways Limited (1987) 2 NWLR (Pt. 55) 126. In the construction of documents, the question is not what the parties to the document may have intended to do by entering into that document, but what is the meaning of the words used in the document. See: Amizu v. Dr. Nzeribe (1989) 4 NWLR (Pt.118) 755. However, where the meaning of the words used is not clear, the Court will fall back on the intention behind the words.
See also Fidelity Bank Plc v. Monye (2012) 10 NWLR (Pt.1301) p.1 and A.G., Nasarrawa State v. A.G., Plateau State (2012) 10 NWLR (Pt.1309) p.419.
In that respect, where the agreement is embodied in several documents, all the documents should be read together in order to discover the intention of the parties. See Royal Exchanges Assurance Nig. Ltd v. Aswani Textile Industries Ltd (1991) 2 NWLR (Pt.176) p.639 at 669 Udeaga v. Benue Cement Co. Plc (2006) 2 NWLR (Pt .965) p.600, A.G; Kaduna State v. Atta (1986) 4 NWLR (Pt.38) p.785 and Alh. M. K. v. F.B.N. Plc (2011) LPELR 8971 (CA). – PER H. S. TSAMMANI, J.C.A
“PROVISIONAL” – MEANING OF THE WORD “PROVISIONAL”
“The term “Provisional” is defined by the Merriam – Webster Dictionary as; “existing or accepted for the present time but likely to be changed; serving for the time being.” The Black’s Law Dictionary (8th Ed.) on the other hand defines provisional” as; “temporary or conditional”. -PER H. S. TSAMMANI, J.C.A
CONSTRUCTION OF STATUTE – DUTY OF COURT IN ASCERTAINING THE INTENTION OF THE LEGISLATURE IN THE CONSTRUCTION OF A STATUTE
“It lies within the bosom of Courts established by the Constitution to construe the Laws validly made by the Legislature in order to see what the intention of the Lawmakers is. The object of interpreting any statute is therefore to ascertain the intention of the legislature that had made it. In doing that the Courts have crafted out tools or instruments to guide the Courts in the discharge of that onerous duty. Thus, Lord Tindal, C. J. in the case of Sussex Peerage’s Case(1844) C.L Firm. 85 at 143 said:
“The rule of construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous then no more can be necessary than to expound those words in the natural and ordinary sense. The words themselves alone, do in such a case, best declare the intention of the law giver. But if any doubt arises from the terms employed by the legislature, it has always been held a safe means of collecting the intention to call in aid the ground and cause of making the statute and to have recourse to the preamble which… is a key to open the minds of the makers of the Act, and the mischief they intend to redress.”
– PER H. S. TSAMMANI, J.C.A
STATUTORY INTERPRETATION – PRINCIPLE OF STATUTORY INTERPRETATION
STATUTORY INTERPRETATION – PRINCIPLE OF STATUTORY INTERPRETATION
“The principle of statutory interpretation has become dominant in all common law countries and are still being applied today. This country is no exception. This has for a long while been the position of the Supreme Court of Nigeria as can be read in many cases, as Uwaifo v. Attorney-General (1982) 7 S.C. P.124 at 185, where Idigbe, J.S.C. said:-
“In order to determine the meaning of the many expressions or phrase, in an enactment the first question to ask always is “what is the natural or ordinary meaning of the words used therein the context in the statute”, and it is only when the ordinary meaning of those words lead to some result which cannot reasonably be supposed to have been the intention of legislature that it becomes proper to look for some other possible meaning of the words concerned.”
In the interpretation of statutes therefore, it is to be presumed that the law maker does not intend to perpetrate injustice; thus, in interpreting statutory provisions, the Court must ensure that justice is done and not sacrificed on the altar of technicality. See Abubakar v. Nasamu (No.2) (2012) 17 NWLR (pt.1330) p.523 at 578; Buhari v. Yusuf (2003) 14 NWLR (pt. 841), p.446 and Okoli v. Udeh (2008) 10 NWLR (Pt.1095) p.213. -PER H. S. TSAMMANI, J.C.A
CONSTRUCTION OF STATUTES –INTERPRETATION OF “SHALL” AND “MAY” WHEN USED IN A STATUTE
“There is a time-tested, time honoured and time-proven principle of construction of statutes that draws a dichotomy between the words “shall and “may” as constituting a mandate, obligation or command and permissiveness or discretion respectively. This is per Niki Tobi, JSC in Odedo v. INEC (2008) 17 NWLR (Pt.1117) 554 at 610 paragraphs F – G. See also Ararume v. INEC (2007) 9 NWLR (Pt.1038) 127 at 160. Since the Order was not shown to have been published in any Gazette of the State, Section 5 of the Law under reference was not complied with.”
In the construction of statutes generally, when the word used is “shall”, it imports that a thing must be done. It is almost always construed to import a form of command or mandate which is given a compulsory meaning or denoting an obligation. See Nwankwo v. Yar’adua (2010) 12 NWLR (Pt.1209) p.518; Umeanadu v. A.G. Anambra State (2008) 9 NWLR (pt.1091) p.175 and Bamaiyi v. AG., Federation (2001) 12 NWLR (pt.727) p.468 at 480. In other words, in its ordinary meaning, the word “shall” is a word of command which is usually given an obligatory meaning and denoting compulsion. It therefore does not give room for discretion and therefore peremptory. The word may however be used as implying futurity; or giving a directive or permission. In other words, the word shall” is sometimes used to imply or intended for directing the doing of a thing only; in which case, it may be construed as “may” which is merely permissive. See Evong v. Messrs Obono-Obono & Asso.(2012) 6 NWLR (pt.1296) p.338 and Okorocha v. U.B.A. Plc (2011) 1 NWLR (pt.1228) p.348. Generally, however, whether the word shall is to be construed in a mandatory or directory sense would depend on the circumstances of the case. Thus, in the case of Amokeodo v. I.G.P. (1999) 6 NWLR (Pt. 607) p.467 at 481 paragraphs B C, it was held that:
“No universal rule can be laid down for determining whether provisions of a statute are mandatory or directory; in each case, the intention of the legislature must be ascertained by looking at the whole scope of the statute and in particular at the importance of the provisions in question in relation to the general object to be secured.”
It therefore means that, the meaning to be attached to the word “shall” used in a Statute, would depend on the consequences of disobedience to the command as provided by the Statute. Accordingly, if the provision of the Law requires that certain formalities be performed as condition precedent for the validity of the transaction without imposing any penalty for non-compliance, the condition therein would be treated as directory only,. See A. T. Ltd v. A.D.H. Ltd (2007) 15 NWLR (Pt.1056) p.118 at 150-151 paragraphs H – G; Adeosun v. Gov., Ekiti State (2012) 4 NWLR (pt.1291) p.581 and INEC v. Iniama (2008) 8 NWLR (Pt.1088) p.182 at 199 paragraphs E – F. In determining the issue therefore, the Court is enjoined to try to get at the real intention of the Legislature by carefully attending to the whole scope of the Statute under construction. PER H. S. TSAMMANI, J.C.Ap.213.
STATUTORY PROVISION – EFFECT OF WHERE A PENALTY FOR NON-COMPLIANCE OR DISOBEDIENCE HAS BEEN IMPOSED IN A STATUTORY PROVISION
I have carefully read the provisions of the Law under construction. Incidentally, it runs into only six (6) Sections, so I find no difficulty in reading through. Upon a careful reading, I find nowhere that failure of the Executive Council to publish any act done under Section 5 of the Law is sanctioned. In other words, the failure of the Executive Council to publish the return” of the schools in the Ogun State Gazette has not been sanctioned. No penalty has been prescribed under the Law for noncompliance. The law is that, where a penalty for non-compliance or disobedience has been imposed, the transaction will be illegal and void, but where none is prescribed, the duty to be performed will be treated as merely directory; and failure will not nullify or void the transaction.
See Pan Bisbilder Ltd v. F.B.N (2000) FWLR (pt.2) p.177 and C.B.N. v. Eluma (2001) FWLR (Pt.40) p.1615 – PER H. S. TSAMMANI, J.C.A
CONSTRUCTION OF STATUTE – DUTY OF COURT WHEN INTERPRETING STATUTES
INTERPRETATION OF STATUTE, COURT, PRACTICE AND PROCEDURE
“Before I conclude, I find it necessary to state that statutes are made for the peace, order and good governance of a society. They are made also for the advancement and development of society; both economic, social and political. Courts of Law charged with the duty of construing those documents must be purposeful and therefore construe such Laws in order to meet the circumstances, issues, conditions or situations which propelled the Legislature to enact them, See Nigerian Army v. Aminun Kano (2010) 5 NWLR (pt.1188) p.429. In that respect, a Court of law will, in order to avoid injustice, not give construction to a statute that would enable a person, by his own action or inaction to avoid an obligation which he has undertaken and perhaps profited from it. -PER H. S. TSAMMANI, J.C.A
RULE OF INTERPRETATION – CARDINAL RULE OF CONSTRUCTION OF WRITTEN INSTRUMENTS
“It is a cardinal rule of construction of written instruments that the words of a written instrument must in general be taken in their ordinary sense unless where to do so would lead to some absurdity or some repugnancy or inconsistency with the rest of the instrument. See Ogbunyiya & Ors vs. Okudo & Ors (1979) 6-9 SC 24. The above words in the Memorandum of Understanding are ordinary and plain enough. Let me note as an aside here that the expression “firming out” used in the Memorandum of Understanding is inappropriate. The correct expression is “farming out Accordingly to Merriam – Webster Dictionary, “Farm out” means to turn over (as a job) for performance by another usually under contract”. According to Chambers Concise Dictionary the words “farm something out means “to give (work) to others to do. Thus what the government party to the Memorandum of Understanding did was to give out to the appellants the job” or “work” of managing the schools. That there was no return of ownership of the schools is glaring from Clause E, the first line of which describes “the Manager as the “former owner. The Memorandum of Understanding is in a nutshell, a management agreement simpliciter. It has nothing to do with the return of the schools to the former owners. -PER O. DANIEL-KALIO, J.C.A
“SHALL” – CONSTRUCTION OF THE WORD “SHALL” IN AN ENACTMENT
“As for the use of the word “shall in Section 5 of the Education (Post-Primary Institutions) (Special Provisions) Law, it is important to state that it is not the case that in all cases the word shall represents a command when used in an enactment. In the case of Amadi v. NNPC (2000) 10 NWLR PART 675 P.76, to Supreme Court per Uwais CJN stated thus:
“It is settled that the word shall when used in an enactment is capable of bearing many meanings. It may be implying futurity or implying a mandate or direction or giving permission.-PER O. DANIEL-KALIO, J.C.A
CASES CITED
Nigerian Army v. Aminun Kano (2010) 5 NWLR (pt.1188) p.429.
STATUTES REFERRED TO
Education (Post Primary Institution) (Special Provisions) Law, Cap. 36 Laws of Ogun State
Ogun State, Nigeria, Education Law of 1978, Cap. 35