In The Supreme Court of
On Friday, the 29th day of July 1994
S.C. 147/1993
Before
Their Lordships
|
Abubakar Bashir Wali |
...... |
Justice, Supreme
Court |
|
Idris Legbo Kutigi |
...... |
Justice, Supreme
Court |
|
Michael Ekundayo
Ogundare |
...... |
Justice, Supreme
Court |
|
Sylvester Umaru Onu |
...... |
Justice, Supreme
Court |
|
Yekini Olayiwola Adio |
...... |
Justice, Supreme
Court |
Between
|
N.A.B. Kotoye |
....... |
Appellant |
And
|
Mrs F.M. Saraki Dr. Olusola Saraki |
....... |
Respondents |
Judgement of the Court
Delivered by
Idris Legbo Kutigi. J.S.C
In the consolidated suits Nos. LD/ 845/87 and LD/938/87 the
plaintiffs together and the 2nd plaintiff alone respectively claimed against
the defendant as follows:-
"LD845/87
(1) A declaration that the 2,400,000 shares
and the Bonus, Scripts and other shares attached thereto standing in the name
of the defendant in the Register of Shareholders of Societe
Generale Bank (Nigeria) Limited is held by him in
trust for the plaintiffs (or alternatively) for the 2nd plaintiff;
(2) An order directing an Inquiry into the
amount of any dividends which may have been received by the defendant as holder
of the afore-mentioned shares up to the date of the judgment herein;
(3) An order of injunction restraining the
defendant from holding or dealing with the aforesaid shares otherwise than as
trustee for the plaintiff and in accordance with the lawful direction of the
plaintiff or the appropriate authorities.
(4) An order for rectification of the
Registrar of Shares to give effect to any judgment delivered herein."
"LD/938/87
1. A declaration that the 4,579,460 shares
standing in the name of the defendant in the Register of Shareholders of Societe Generale Bank (Nigeria)
Limited is held by him in trust for the plaintiff.
2. An order directing an inquiry into the
amount of any dividends which may have been received by the defendant as holder
of the aforementioned shares up to the date of the judgment herein.
3. An order of injunction restraining the
defendant from holding or dealing with the aforesaid shares otherwise than as
trustee for the plaintiff and in accordance with the lawful direction of the
plaintiff or the appropriate authorities.
4. An order for rectification of the
Register of Shares to give effect to any judgment delivered herein.
5. An order for the refund of the
sum of N70.000.00 being balance of the N800,000.00
held by the defendant on the plaintiff's behalf.
The defendant counter-claimed against the plaintiffs in the consolidated
suits thus-
"LD/845/87
(1) Whereupon the defendant by way of
Counter-claim claims against the 2nd plaintiff the sum of N730,000.00 being money advanced to the 2nd plaintiff or to his
order at his request.
(2) The defendant also claims interest
thereon at the rate of 15% per annum from the 15th day of May, 1986 until
payment."
"LD/938/87
(1) A declaration that of the 6,876,840
shares standing in the name of the plaintiff in the Register of Members of Societe Generale Bank Nigeria
Limited 2,783,483 thereof are not held by the plaintiff beneficially but upon
trust for the plaintiff and the defendant for disposal as they shall both agree
to deserving Nigerians of their choice.
(2) An injunction restraining the plaintiff
from dealing with the said shares as if he were sole beneficial owner.
The hearing of the consolidated suits was still in progress when the
defendant filed a Motion on Notice to strike out the suits on the ground that
the court had no jurisdiction to continue to entertain same and or allow the
proceedings to be maintained. The motion was supported by a 4-paragraph
affidavit sworn to by one Oluwole Koya,
a legal practitioner in the Chambers of Ayanlaja, Adesanya &
"4. That
it is common ground both in the pleadings filed and the evidence adduced so far
before this Honourable court by both parties to the
proceedings in the two consolidated cases aforesaid that, the shares in dispute
are registered in the name of the defendant in the books of Societe
Generale Bank (
The motion was filed pursuant to the promulgation of-Banks and other
Financial Institutions Decree No.25 of
1991. The commencement date was 20th June 1991. Section 11 of the
said Decree reads:
"11. Notwithstanding anything
contained in any law or in any contract or instrument, no suit or other
proceeding shall be maintained against any person registered as the holder of a
share in a bank on the ground that the title to the said shares vests in any
person other than the registered holder.
Provided that nothing in this section
shall bar a suit or other proceedings on behalf of a minor or person
suffering/ram any mental illness on the ground that the registered holder
holds the share on behalf of the minor or person suffering from the mental
illness." (Italics are mine for emphasis only).
In a considered ruling delivered on the 27th day of November
1992 the F learned trial Judge dismissed the motion or application. On page 54
of the record he said:-
"It is not in dispute as far as the
claims go that the titles to the shares held by the defendant in S.G.B.N. vest in him. I do not find that Section 11 bars
this suit or other proceeding based on the claims in the first four paragraphs
of the consolidated suits from being maintained against the defendant. The
question of whether or not there is a trust concerning the shares held in
the-name of the defendant in S.G.B.N. is far from
being determined and cannot be until the whole evidence is taken. The learned
defence counsel had pointed out in his reply that the fifth claim in Suit
LD/938/87 is unaffected in any way by this motion. This is a relief for refund
of the balance of certain sum allegedly held by the defendant in the
plaintiff's behalf therein. I agree with him."
Dissatisfied with the ruling above, the defendant appealed to the Court
of Appeal,
"Whether the jurisdiction of the court to continue the hearing of this action has been ousted by the provision of section 11 of the banking A and other Financial Institution Decree 1991 No.25."
The Court of Appeal agreed with the plaintiffs when it said in its
judgment on page 100 of the record that:-
"The issue before this court is the
correct interpretation of section 11 of the Banking and other Financial
institutions Decree No. 25 of 1991 and applying the said interpretation to the
claims in this case so as to determine whether the court below has the
jurisdiction to continue the case or not."
It then considered the issue and arrived at the conclusion that the High Court had jurisdiction to continue the consolidated suits and dismissed defendant's appeal with costs.
Aggrieved by the decision of the Court of Appeal the defendant has now
appealed to the Supreme Court. Five issues were identified for determination in
his brief. The plaintiffs on their part set out only one issue for
determination in their brief. It reads:-
Whether the claims contained in the
Statement of Claim in this action (or any of them) can strictly regarded, be
described or categorised as a claim by the
plaintiffs or either of them that the title D to the shares registered in the name
of the defendant vests in them or either of them than in the said defendant.
I agree entirely. The issue above was the same issue before the trial
High Court and the Court of Appeal even though worded differently. In fact we
are to consider whether the claims of the plaintiffs are caught by the
provision of section 11 of Decree 25 of 1991 which is reproduced here again:-
"11. Notwithstanding anything contained in any
law or in any contract or instrument, no suit or other proceeding shall be
maintained against any person registered as the holder of a share in a bank on
the ground that the title to the said shares vests in any person other than the
registered holder.
Provided that nothing in this section
shall bar a suit or other F proceedings on behalf of a minor or person
suffering from any mental illness on the ground that the registered holder
holds the share on behalf of the minor or person suffering from the mental
illness."
The provisions can be conveniently broken down as follows:-
A. No suit or other
proceedings shall be maintained against a registered holder of shares
in a bank on the ground that the title to the said shares vests in any
person other than the registered holder.
B A suit or other proceedings on behalf of a minor
or person suffering from any mental illness against a registered holder of
shares in bank on the ground that the registered holder holds the share on
behalf of the minor or person suffering from mental illness is maintainable.
(See the proviso above).
I must say at once that the opening clause that
"Notwithstanding anything contained in
any law or in any contract or instrument"
ought to be restricted to a provision in
any law or contract or instrument which allows a litigant to maintain the suit
against a registered holder on the ground that the title in the shares vests in
any other person other than the registered holder. We have not been referred to
any law or contract or instrument which provides as such. I venture to say that
the clause cannot be read to cover cases of trusts more so as the suit herein
is not being maintained because there is a trust, rather it is because of lack
of it.
It is a settled cardinal principle of statutory interpretation that
where, in their ordinary meaning the provisions are clear and unambiguous
effect should be given to them without resorting to external aid. The duty of
the court is to interpret the words of the statute as used. Those words may be
ambiguous, but even if they are the power and duty of the court to travel
outside them on a voyage of discovery are strictly limited (see for example Attorney-General
of Bendel State v. Attorney-General of 'the
Federation (1981) 10S.C. 1; Abioyev.Yakubu(1991)5
NWLR (Pt.190) 130, Lawal v. G.B.
Ollivant (1972) 2 S.C. 124, Aya
v. Henshaw (1972) 5 S.C. 87;
There is no doubt at all that the plaintiffs do not come under my
classification (B) above. They are neither minors nor persons suffering any
mental illness. We are therefore left with classification (A) only. The task
now will be to examine the plaintiffs' claims or reliefs
one by one to see whether any of them is covered thereunder.
It should be noted at once that the only ground for disqualification
provided under (A) above and in fact under section 11 of Decree 25 of 1991 is "that
the title to the said shares vests in any other person than the registered
holder"
So that unless the plaintiffs specifically claim that title in the
shares vests in them or in any person other than the defendant registered
holder, it would be difficult to bring them under section 11 of the Decree. It
is common ground as stated in para.4 of the affidavit
in support of the motion above, that the shares in dispute are registered in
the name of the defendant in the books of Societe Generale Bank Ltd as holder thereof. The consolidated suits
in no way sought to challenge or deny that the defendant is the registered
holder of the shares in question or that the shares are vested in him. I think
therefore that Chief Williams S.A.N. was right when he said that the plaintiffs
are not challenging the fact that the defendant is the registered owner of the
shares, but that the defendant is a trustee of those shares for the plaintiff
as the beneficial owners. That in my view is the plain and ordinary meaning of
the plaintiffs claims in this case.I
appreciate that there might be problems in respect of the claim for
rectification depending on what turns out to be rectified after the trial.
Definitely it could not be the rectification of the name of the defendant as a
registered holder of the shares which section 11 (ibid) forbids, but it could
even be the number of shares or any other error as may be revealed during the
trial. But once the defendant is declared a trustee of any of the shares for
the plaintiffs, the question of rectifying the Register of Shareholders to
reflect their names would no more arise because defendant cannot be a trustee
unless he holds the shares in his name to enable him exercise control over
them.
There is no doubt at all that section 11 (ibid) sought to oust
the jurisdiction of the court to entertain matters in respect of registered
shareholders in banks. Therefore being an ouster clause, the provision will
have to be construed strictly and very strictly too (see Barclays Bank v. C.B.N. (1976) 1 All NLR 409.
Ouster clauses must not be construed liberally, or loosely or wantonly. And
that is what I have endeavoured to do in this case.
We must not forget that a constructive trust, as in this case, is imposed by
equity on the ground of conscience and it is not based on the prior or presumed
intention of the parties. I would like to believe that the A parties herein are
conscionable people. A constructive trust is a trust to be made out of the
circumstances. The trial High Court was therefore right when it said:-
The question of whether or not there is a trust concerning the shares held in the name of the defendant in S.G.B.N. is far from being determined and cannot be until the whole evidence is taken.
The Court of Appeal was equally right when it held as per Ubaezonu J.C.A., who read the
lead judgment, that:-
"The present suit does not
challenge or deny that the appellant is the registered holder of the shares in
question or that the shares are vested in him. No. What I understand him to be
saying is:-
“I concede that the shares are vested in
you but, you hold it in trust for me."
I think that if as a result of the plaintiffs' claims, the defendant is
successfully pronounced to be a trustee of any of the shares thereof, he the
defendant will still remain the registered legal owner of the shares while the
plaintiffs will become the beneficial owners only, a trust relationship being
equitable generally. It is of no consequence whatsoever that the defendant
though a registered holder is a mere notional or nominal
owner of the shares while the plaintiffs are the real beneficial owners.
That is exactly what the law of trust is all about. It is not the function of
any court to change the law and Decree 25 of 1991 has not changed it. It is
none of the business of the court to read into the section 11 other meanings
simply because the court does not like the natural and direct result of its
application which does not lead to any absurdity.
I must observe that this being an interlocutory application, I must
avoid making any observation in the judgment which might appear to prejudge the
main issues in the proceedings relative to the interlocutory application (see
for example Egbe v. Onogun
(1972) 1 All NLR (Pt.l)
95; Ojukwu v. Governor of Lagos State
(1986) 3 NWLR (Pt.26) 39.
It was therefore necessary for me to have restricted myself to the single issue
identified by the plaintiffs and the lower courts for determination as above.
In conclusion this appeal fails and it is hereby dismissed. I hold that
the two lower courts, the trial High Court and the Court of Appeal,
were right when they respectively came to the conclusion that the High Court
has the jurisdiction to continue with the consolidated suits herein. The
plaintiffs are awarded costs assessed at one thousand (N1,000) naira against the defendant.
Judgement
Delivered by
Abubakar Bashir
Wali J.S.C
I have read in advance the lead judgment of my learned brother, Kutigi, J.S.C., and I agree with the reasoning and
conclusion that the appeal be dismissed, I however wish to make the following
contributions:-
The plaintiffs:
(1) Mrs. F. M. Saraki;
and
(2) Dr. Olusola Saraki
by their amended statement of claim
in suit No. LD/845/87 claimed against the defendant, the following reliefs:-
(1) A declaration that the 2,400,000 shares and
the Bonus Script and other shares attached thereto standing in the name of
the defendant in the Register of Shareholder of Societe
Generale Bank (Nigeria) Limited is held by him in
trust for the plaintiffs (or alternatively) for the 2nd plaintiff;
(2) An order directing an inquiry into the
amount of any dividends which may have been received by the defendant as holder
of the afore-mentioned shares up to the date of the judgment herein;
(3) An order of injunction restraining the
defendant from holding or dealing with the aforesaid shares otherwise than as
trustee for the plaintiff and in accordance with the lawful direction of the
plaintiff or the appropriate authorities;
(4) An order for rectification of the
Register of Shares to give effect to any judgment delivered herein."
The defendant, in his amended statement of defence counter-claimed as
follows:-
"46. WHEREUPON the defendant by way of
counter-claim claims against the 2nd plaintiff the sum of N730,000 being money advanced to the 2nd plaintiff or to his
order at his request
47. The defendant also claims interest thereon at the rate of 15% per annum from the 15th day of May, 1986 until payment."
Also on the Amended Statement of Claim to Suit No.LD/938/87,
Dr. Sola Saraki v. N.A.B.
Kotoye, the plaintiff
claimed the following reliefs against the defendant:-
"(1) A declaration that the 4,579,460 shares
standing in the name of the defendant in the Register of Shareholders of Societe Generale Bank (
(2) An order directing an inquiry into the amount of any dividends which may have been received by the defendant as holder of the aforementioned shares up to the date of the judgment herein.
(3) An
order of injunction restraining the defendant from holding or dealing with the
aforesaid shares otherwise than as trustee for the plaintiff and in accordance
with the lawful direction of the plaintiff F or the appropriate authorities.
(4) An order for rectification of the
Register of Shares to give effect to any judgment delivered herein.
(5) An order for refund of the sum of N70,000.00 being balance of the
N800,000.00 held
by the defendant on the plaintiff's behalf."
The defendant on his part and in
his Further Amended Statement of Defence claimed against the plaintiff as
follows:-
"(i) A declaration that if the 6,876,840
shares standing in the name of the plaintiff in the Register of Members of Societe Generale Bank Nig.
Limited, 2,783,483 therefore are not held by the plaintiff beneficially but upon
trust for the plaintiff and the defendant for disposal as they shall both agree
to deserving Nigerians of their choice.
(ii) An injunction restraining the plaintiff
from dealing with the said shares as if he were sole beneficial owner."
The two suits were consolidated for
hearing. While the hearing was in progress, the defendant, by a Motion on
Notice dated 16th March 1992 applied to the trial court for an order:
Striking out the consolidated suits
herein on the ground that this Honourable court has no
jurisdiction to continue to entertain same and or allow the proceedings to be
maintained against the defendant/ applicant."
The application was opposed. After hearing arguments
from both parties. The learned trial Judge, OlusoJa
Thomas J, delivered his Ruling on 27th November 1992 in which he opined thus:-
"Turning again to
the provisions of section 11 of Decree 25/1991, one finds that the restriction
of suit or other proceeding against a registered holder of a share in the bank
as provided in the main part thereof is when one part challenges the registered
holder that his "title to the said shares vests in any person other than
himself". On the other hand, the proviso used different language when
exempting the minor or person suffering from mental illness, that is, '"on
the ground that the registered holder hold the shares
on behalf of the minor or person suffering from mental illness”
and then declared-
"I do not find that Section 11 bars this
suit or other proceeding based on the claim in the first four paragraphs of the
consolidated suits from being maintained against the defendant. The question of
whether or not there is a trust concerning the shares held in the name of the
defendant in S.G.B.N. is far from being determined
and cannot be until the whole evidence is taken."
The defendant appealed against this Ruling to the Court of Appeal. And
the Court of Appeal also after hearing the appeal opined thus before dismissing
the said appeal:-
"The provision of section 11
of the Decree may be broken up as follows:
No suit or proceedings shall be
maintained against
(i) A registered holder of shares in a Bank;
(ii)
On the ground that the title of the shares so
registered in his name vests in another person other than himself.
Thus, if any
person brings an action in any court to say that title of the shares in a Bank
registered in A's name does not vest in A but in B, the jurisdiction of the
court is ousted from entertaining such an action. The registration of the
shares of a Bank in the name of a person is absolute as to the person in whom
the title to the said shares vests. The Decree is clear on this and gives no
room for argument or speculation. The only issue in this case is whether A in
whose name the shares are registered can hold the same in trust for a third
party (B). The Decree is silent on this. In interpreting a statute, a court
does not import into it what it does not say. The Decree talks of title or a
person registered as holder. It does not talk about beneficial interest in the
said shares or whether the person in whom the title vests can or cannot hold
the shares in trust for another person."
The defendant has now further appealed to this court.
Both parties filed and exchanged briefs of
argument as required by the Rules of Court. In the brief filed by the defendant
now the appellant, five (5) issues out of the 6 grounds filed by him were
identified for determination, while the plaintiffs now the respondents
formulated only one issue for determination.
Since the main and determining issue in this appeal is the
interpretation of section 11 of Decree No.25 of 1991,
in my view the issue formulated by Chief Williams. SAN is the appropriate one
for the purpose of determining whether the trial court has jurisdiction to
continue with the hearing of the plaintiffs' case as formulated in the
pleadings, and it reads thus:-
Whether the claims contained in the
Statement of Claim in this action or (or any of them) can strictly be
regarded, be described or categorized as a claim by the plaintiffs or either
of them than title to the shares registered in the name of the defendant vests
in them or either of them than the
defendant."
Both learned Senior Advocates agreed that the materials to look, at in
deciding this issue of jurisdiction are the Statement of Claim filed, and in
the present case, the Amended Statement of Claim in suit LD/845/87, the Second
Amended Statement of Claim in suit LD/938/87, and the defendants counter-claim
in Amended Statement of Defence in suit LD/845/87 and the counter-claim in
Further Amended Statement of Defence in suit LD/938/87. In this regard, both
parties agreed that the shares in dispute are registered in the name of the
defendant. But the plaintiff contended that this notwithstanding, section 11
did not bar the plaintiffs claim to the beneficial ownership of these shares.
Undoubtedly, looking at the averments contained in the pleadings of both
parties, the issues of trust, trustee and beneficiary are very prominent and
therefore in my view, Ubaezonu, J.C.A,
was not totally wrong when he summarized the determinant issue in the appeal
before them in his lead judgment as follows:-
"The only
issue in this case is whether A in whose name the share are
registered can hold the same in trust for B."
I do not think, having regard to the pleadings earlier referred to, one
should quarrel so much with the way the learned trial Justice recast the
germane and determining issue in this
appeal.
Now section 11 of Decree No. 25 of 1991 provides thus:
"11. Notwithstanding anything contained in any
law or in any contract or instrument no suit or other proceeding shall be
maintained against any person registered as the holder of a share in a bank on . the ground that the title to
the said shares vests in any person other than the registered holder.
Provided that nothing in this section shall bar a suit or other proceedings on behalf of the minor or person suffering from mental illness."
In the course of hearing this appeal, this court suo
motu raised the question of retrospectivity
of section 11 (supra), and while learned Senior Advocate for the
defendant/ appellant submitted that it has retrospective application, learned
Senior Advocate for the plaintiffs/respondents, did not make any submission on
the issue. It is a well established principle of interpretation of statutes
that where the provision of any law ousts the jurisdiction of court on any
matter such a provision shall be narrowly and strictly construed, unless it
clearly and unambiguously states so. See Dove v.Dove
(1963) p.321, (1993) 2 WLR 714. In this case, the Court of Appeal
while interpreting section 12(3) of the Matrimonial Causes Act, 1950 A which provided that if the spouse
obtaining a decree Nisi of divorce did not make an application for it to
be made absolute six months after the trial, then the other spouse could make
application within a further period of three months, if the circumstances
warranted, obtain a decree absolute, the Court of Appeal held that this did not
oust the jurisdiction of the court to substitute a decree of judicial
separation for a decree nisi,
“because
"had it been the intention of the legislature to revoke the jurisdiction ,
it would have been done in a clear way than by inference from the
subjection." See also Commissioners of Customs & Excise v. Cure
&Deeley,Ltd(l962)Q.B.340, Barclays Bank v.C.B.N.
(1976)1 All NLR 409 at 421 and A.-G.,
This same principle was emphasised by VISCOUNT
Sumands in Smith v.
"It is a principle not by any means to be whittled down that the subject recourse to Her Majesty's courts for determination of his rights is not to be excluded except by clear words."
It shall also not be made to apply retrospectively to affect the
acquired right before it or to affect litigations pending m court, unless such
intention is manifestly and unambiguously made clear in it. See Hickson v. Darlow
(1883) 23 CH.D.
690 where it was held that the Bills of Sales Act (1878) (Amendment) Act, 1882
which made void bills of sale not registered within seven days of their
execution, would not apply to instruments executed more than a week before the
commencement of theAct. It was similarly held in RE
See also the case of Moon v. Durden
2 Exh. 22 in which the majority judgment of that
court (3 to 1) while interpreting 18th Section of Statute 8 and 9 Vie 109 which
is worded thus:-
"And be it enacted that all contracts or agreements, whether by parol or in writing, by way of gaming or wagering, shall be null and void, and that no suit shall be brought or maintained in any court of law or equity for recovering any sum of money or valuable thing alleged to -be won upon any wager, or which shall have been deposited in the hands of any person to decide the event on which any wager shall have been made."
held that the provision had no retrospective
effect to affect suits commenced before its coming into operation.
In Colonial Sugar Refining Co. v. Irving (1905) A.C. 369, the Australian Commonwealth
Judiciary Act, 1903 which had abolished a right of appeal by the Privy Council
from the Supreme Court of Queensland, it was held not to apply retrospectively
to a suit pending when the Act was passed and decided by the Supreme Court
after that date.
In Re Athlumney
(1898) 2 Q.B. 547, Wright J opined thus:-"Perhaps no rule of
construction is more firmly established than this, that a retrospective
operation is not to be given to a statute so as to impair an existing right or
obligation, otherwise than as A regards a matter of procedure, unless that
effect cannot be avoided without doing violence to the language of the
enactment If the enactment is expressed in a language that is fairly capable of
either interpretation, it ought to be construed as prospective only."
Looking at the wording of section 11,1 am of
the view that it has neither retrospective effect, nor does it affect the issue
of relationship of a trustor and a trustee and the
beneficial interest accruing to the former from shares in a bank held and
registered in the name of the latter for the benefit of the former. To hold
otherwise is to import into the statute something that was not intended or
contemplated by the legislature. The Decree only ousts the jurisdiction of the
court from determining a dispute challenging the vesting of bank shares in the
name of the person in whose name they are registered. The proviso to s.l 1 (supra) only provides exceptions to the main
section in cases of persons of unsound mind or minors. The proviso in my
view does not affect the question of trust or a claim of beneficial interest
from such trust; and the case of Western Derby Union v. Metropolitan
Life Assurance Society (1897) A.C. 647 cited by
learned Senior Counsel for the plaintiffs/respondents is apposite. In that case
Lord Herschell while dealing with the effect of
proviso to the enactment said:-
"I
decline to read into any enactment words which are not to be found there, and
which would alter its operative effect because of provisions to be found in the
proviso. Of course ^proviso may be used to guide you in the selection of
one or other of two possible constructions of the words to be found in the
enactment, and show when there is doubt about its scope, which it may
reasonably admit of doubt as to its having this scope or that, which the proper
view to take, but to find in it an enacting provision which enables something
to be done which is not to be found in the enactment itself on any reasonable
construction of it simply because otherwise the proviso would be
meaningless and senseless, would, as I have said, be in the highest degree
dangerous,... and, accordingly, a F proviso is inserted to guard against
the particular case of which a particular person was apprehensive, although the
enactment was never intended to apply to his case, or to any other similar
cases at all."
Commenting on the views (supra)
Lord Davey opined thus:-
"My Lords, it seems to me that the
whole argument of the appellants really comes to the old and apparently
ineradicable fallacy of importing into an enactment, which is expressed in
clear and apparently unambiguous language, something which is not contained in
it, by what is called implication from the language of & proviso which
may or may not have a meaning of its own. I entirely agree with what has fallen
from my noble and learned friend opposite (Lord Herschell)
upon this subject."
The style of Military Regimes legislations on ouster of courts
jurisdiction has always been plainly and clearly drafted such that no iota of
doubt is left as regards their intent, purport and scope. See for example, section
5(1) of Decree No.47 of 1979 and section 2(1) of
Decree No. 48 of 1977.
I shall briefly touch upon the issue of fair hearing. I have gone
through the briefs of argument filed by both parties in the Court of Appeal and
I find myself convinced and satisfied that both parties were heard on the
germane and determinant question of ouster of the courts jurisdiction by 5.77 of
Decree No. 25 1991. The Court of Appeal after considering the written and
oral submissions by learned counsel came to the conclusion, as did by the trial
court, that S. 11 did not oust the jurisdiction of the court to hear the
plaintiffs' claim. Dealing with issues other than this one, would be academic,
as the result derived therefrom, will have no effect
on the court's power to continue with the hearing of the action. There is no
miscarriage of justice. I come to the conclusion that s. 11 has
not ousted the trial court's jurisdiction to continue with hearing of the cases
now pending before it. Both the decisions of the trial court and the Court of
Appeal are on firm ground on this issue and I equally affirm them.
It is for these reasons contained in the lead judgment of my learned
brother Kutigi, J.S.C. that I also hereby dismiss
this appeal and subscribe to the consequential orders contained in it.
Judgement
Delivered by
Sylvester Umaru Onu J.S.C
I had before now the privilege of reading in draft form the judgment of
my learned brother Kutigi, J.S.C. just delivered and
with it I am in complete agreement. I wish, however, to add some comments of mine
in elaboration as follows:-
This appeal arose from the decision of the Court of Appeal, Lagos
Division delivered on 30th June, 1993 which dismissed an appeal by defendant,
herein appellant, from the Ruling of the Lagos High Court (per Olusola Thomas, J.) wherein that court decided that its
jurisdiction to continue the trial of two consolidated actions before it was
not ousted by section 11 of the Banks and Other Financial Institutions Decree
No. 25 of 1991 (hereinafter in this judgment referred to as Decree No. 25).'
Decree No. 25, Section 11 states:-
"Notwithstanding anything contained in any law or in any contract or instrument, no suit or other proceeding shall be maintained against any person registered as the holder of a share in a bank on the ground that the title to the said share vests in any person other than the registered holder.
Provided that nothing in this section
shall bar a suit or other proceedings on behalf of a minor or person suffering
from any mental illness on the ground that the registered holder holds the
share on behalf of the minor or the person suffering from the mental
illness."
But first, the genesis and historical background of the case giving rise
to this appeal.
It all began from inception in 1987 at the Lagos State High Court
wherein the plaintiffs, Mrs. P.M. Saraki and Dr. Olusola Saraki had in suit No
LD/845/87 jointly claimed from the defendant, N.A.B. Kotoye, as per their amended statement of claim, as
follows:-
"(1) A declaration that the 2,400,000 shares
and the Bonus, script and other shares attached thereto standing in the name of
the defendant in the Register of Shareholders of Societe
Generale Bank (Nigeria) Limited is held by him in
trust for the plaintiffs (or alternatively) for the 2nd plaintiff;
(2) An order directing an inquiry into the
amount of any dividends which may have been received by the defendant as holder
of the afore-mentioned shares up to the date of the judgment herein.
(3) An order of injunction restraining the
defendant from holding or dealing with the aforesaid shares otherwise than as
trustee for the plaintiff and in accordance with the lawful direction of the
plaintiff or the appropriate authorities;
(4) An order for rectification of the Register of Shares to give effect to any judgment delivered herein."
The defendant in his own amended statement of defence counter-claimed against the plaintiffs vide his paragraphs 46 and 47 thus:-
"46. Whereupon
the defendant by way of counter-claim claims against the 2nd plaintiff in the
sum of N730,000.00 being money advanced to the
2nd plaintiff or to his order at his request.
47 The defendant also claims interest
thereon at the rate of 15% per annum from the 15th day of May, 1986 until
payment."
In the second
suit, Suit No, LD/938/87, the 2nd plaintiff alone claimed against the defendant
in his second amended statement of claim as follows:
"1. A declaration that the 4,579,460 shares
standing in the name of the defendant in the Register of Shareholders of Societe Generale Bank (Nigeria)
Limited is held by him in trust for the plaintiff.
2. An order directing an inquiry into the
amount of any dividends which may have been received by the defendant as holder
of the aforementioned shares up to the date of judgment.
3. An order of injunction restraining the
defendant from holding or dealing with the aforesaid shares otherwise than as
trustee for the plaintiff and in accordance with the lawful direction of the
plaintiff or the appropriate authorities.
4. An order for rectification of the Register
of the shares to give effect to any judgment delivered therein.
5. An order for the refund of the sum of N70,000.00 being balance of the N800,000.00 held by the
defendant on the plaintiff's behalf."
In his further amended Statement of Defence and counterclaim, the
defendant pleaded thus:-
"(i) A declaration that the 6,876,840 shares standing in the name of the plaintiff in the Register of Members of Societe Generale Bank Nigeria Limited 2,783,483 thereof are not held by the plaintiff beneficially but upon trust for the plaintiff and the defendant for disposal as they shall both agree to deserving Nigerians of their choice.
(ii) An injunction restraining the plaintiff from dealing with the said shares as if he were sole beneficial owner"
Pleadings having been duly exchanged by the parties the two suits which were consolidated went to trial. Before the conclusion of hearing and following the promulgation of Decree No.25, by the Federal Military Government, the defendant brought an application, on grounds of jurisdiction, in which he prayed
the trial High Court for:-
Striking out the consolidated suits herein on the ground that this honourable court has no jurisdiction to continue to entertain same and/or allow the proceedings to be maintained against the defendant/ applicant."
In his considered Ruling, Olusola Thomas, J.
held that, in the light of the submissions of learned counsel on both sides, it
was his conclusion that there is want of clarity in the drafting of section 11
of Decree No.25 and that therefore there is an
ambiguity. He then went on to hold that the interpretative function of the
court is called for, adding that the two alternative interpretations of section
11 (ibid) would have the effect of either:
(i) taking away
the beneficial interest of a cestui qui
trust, or a Bank.
(ii) merely
protecting the legal title of a registered holder of shares in a bank
He in addition maintained that-
(a) It is the duty of the court to adopt the
more reasonable construction and hold that section 11 is intended to protect
the title or the legal title of a registered shareholder.
(b) Section 11 does not bar the claims of
the plaintiffs from being maintained against the defendant, and
(c) The question of whether or not there is
a trust concerning the shares held in the defendant's name is far from being
determined and cannot be determined until the whole evidence is taken and
proceeded to dismiss
the defendant's motion on 27th November, 1992.
The Court of Appeal sitting in
The defendant has further appealed to this court complaining that the
decision in the lead judgment of the court below per Ubaezonu,
J.C.A., premised on a long issue formulated by him
and failure generally on that court's part to consider all the eight issues
formulated from the eleven grounds of appeal, amounted to a denial of fair
hearing contrary to section 33 of the 1979 Constitution.
In his Notice of Appeal dated the 8th of July, 1993, the defendant filed
six grounds of appeal and his amended brief of argument formulated five issues
distilled there from as follows:-
1. Was the issue which the Court of
Appeal formulated and decided the proper issue that arose for determination
before it?
2. Did the refusal by the Court of Appeal
to consider the eight issues formulated by the defendant/appellant as arising
from his Grounds of Appeal constitute a denial of fair hearing?
3. Was not the learned trial Judge obliged
to accede to the defendant's prayer on the application having regard to the
fact that plaintiffs who had accepted defendant's main contention on the effect
of section 11 of the Decree had been unable to sustain the only other
proposition which they had advanced in response to the defendant's argument?
4. Does the proviso to section 11
create ambiguity or alter or affect the meaning of Section 11 in any way?
5. Did not what
the learned trial Judge said amount to accepting the case made by the
defendant?
The issue formulated at the plaintiffs' instance as arising for our
determination is:
"….... the question for determination in this appeal as in the courts below involves a decision as to whether Decree 25 has effectively put an end to the rights of a beneficiary under a trust where the property subject to the trust are shares in a bank."
After the exchange of briefs by the parties in accordance with the rules
of this court this case came up for hearing on the 7th of June, 1994. Learned
Senior Advocates for both sides adopted their briefs of argument. Learned
Senior Advocate for the appellant who also filed a Reply brief adopted same
before each expatiated on them. 1 shall for the purpose of my consideration of
the appeal deal with the five issues submitted at the appellant's instance,
bearing in mind however that the crux of what are contained in the five issues
are, in my opinion, encapsulated in the lone issue proffered on the plaintiffs'
behalf.
ISSUES 1 AND 2:
Issues 1 asks: Was the issue which the Court of Appeal formulated and
decided the proper issue that arose for determination before it? Issue 2 on the
other hand, poses the question: Did the refusal by the Court of Appeal to
consider the eight
issues formulated by the defendant/appellant as arising from his Grounds of
Appeal constitute a denial of fair hearing? The defendant has argued both in
his Amended Brief as well as through learned Senior Advocate on his behalf
firstly, that the court below was in error when it agreed with the plaintiffs
that the only issue for determination in the appeal was that formulated by the
plaintiffs and repeated in his Brief. It was contended that the sole issue
which was formulated as hereinbefore mentioned did notarise
from any of the nine Grounds of Appeal filed by the defendant in his appeal to
that court. That being so, it is erroneous for the court
below to have raised an issue for determination which does not arise from the
grounds of appeal. That issue as formulated in the lead judgment of Ubaezonu, J.C.A., in the court
below was
"The only issue in this case is
whether A, in whose name the shares are registered can
hold the same in trust for a third party (b)".
Learned Senior Advocate for the plaintiffs, Chief Williams, has, in his oral submission argued that the issue there put could have been better stated and that even though not strictly enough, was right or not far from being right. Be that as it may, as it was the jurisdiction of the High Court to entertain the actions now subject of appeal that was involved, the court below even and this court, are bound to look into the matter-jurisdiction being very fundamental.
This is the moreso because,
an issue relating to jurisdiction of the court appealed from will always be
considered and determined by the court to which an appeal lies. That is to say,
a question as to whether or not the court from which an appeal lies has
jurisdiction, will be considered by the court to which an appeal lies even
where both parties are reluctant to, or agree not to raise it, or even where
the point is not raised in the Notice of Appeal, See Asante v. Taawia (1949) 65 TLR 105 (a
Privy Council case), Heyting v. Dupont (1961) 1 WLR 1192 and Wong v. Beaumont
Property Trust Ltd. (1965) 1 QB173, the latter
being a case where the point of jurisdiction involved before the Court of
Appeal in England, was not raised in the court below or in the notice of appeal
but as it went to jurisdiction, the Court of Appeal (England) considered it.
Hence, in the instant case, the fact that the defendant has not included any
aspect of the question in his grounds of appeal or A in the questions for determination
formulated in his Brief of Argument before the court below, can in no way
curtail the jurisdiction of the Court below to decide whether or not the
jurisdiction of the trial court has been ousted by Decree No. 25 In other
words, the question of whether or not the jurisdiction of the trial High Court
in this case has been ousted by Decree No.25, in my
view, depends solely on the true meaning and intent of the enactment and not
upon what the defendant, or for that matter the plaintiffs, chooses or choose
to put in his or their grounds of appeal or cross-appeal or brief or pleading
or any document of a similar purport.
Be it noted and as indeed conceded by Learned Senior Counsel on either
side, that when determining whether or not a court has jurisdiction, it is the
statement of claim alone that must be looked at in a case of this nature.
Indeed, if none of the parties chooses to raise the point or were all of them
do agree that the trial court has jurisdiction, the court is not bound to
refrain from holding a different view should it be convinced that such a view
represents the correct decision in law on the question of jurisdiction. See Owoniboys Technical Services Ltd. v. John Holt
Ltd. (1991)6 NWLR(Pt.l99)550;Osadebayv.A.-G.,Bendel State(1991) 1 NWLR (Pt. 169) 525; Adegoke
v. Adibi (1992) 5 NWLR
(Pt. 242) 410 at 420 and Tukur v. Governor of Gongola State (1989) 4 NWLR(Pt.l 17) 517.
I am therefore not impressed by the argument of learned Senior Advocate
for the defendant when he contended that the issue formulated and decided by
the court below was not an issue that arose for determination in the appeal and
that furthermore that the result was that the defendant was never heard by the
court below on the issues properly placed before them when Ubaezonu,
J.C.A., reading the lead judgment, of that court
held inter alia:-
"The only issue in this case is whether A in whose name the shares are registered can hold the same in trust for a third party (B)",
the latter which was derived from the
oral submission of Mr. Ladi Williams wherein he said:
"…What we are saying is that this is
not to be interpreted to mean where you have a cestui
que trust or beneficiary claiming under a trust,
such beneficiary cannot direct the person in whom title vests how to deal with
the shares and dividends attached thereto"
I therefore share the learned Senior Advocate, Chief Williams' view,
that this court may raise the point of jurisdiction even if the two courts
below did not do so and were overruled. See Vanderyell' s
Trust (No.2) (1974)
It is next argued that the resolution of this issue is closely linked
with the first issue considered above in that the question of fair hearing,
like that of natural justice, must depend upon the circumstances of the case,
the nature of the inquiry, the rules of procedure applicable, the
subject-matter that is being dealt with and so forth. The underlying factor
however, it is maintained, is that the person concerned should also be heard by
the adjudicating panel before a decision is reached one way or the other.
After referring us to several other recent decisions of this court on
the duty of the court below to determine all issues placed before it for
determination, learned counsel submitted that it is usual in a situation of a
proved denial of the right of fair hearing for the appellate court to remit the
case to the court below so that all issues raised may be properly considered. The case of Ezeoke & Ors v.
Nwagbo & Ors. (1988) 1 NWLR (Pt. 72) 616 at 627 and Obi
Awanze Okonji & Ors v.
George Njokanma & Ors. (1991) 7
NWLR (Pt. 202) 131 were called in aid. However, in a
situation where a court, as herein has failed to consider or pronounce on
issues placed before it, and a resolution of other issues by the appellate
court, it will be unnecessary to remit the issues not considered to the lower
court for consideration and determination vide Chief G. A. Titiloye & Ors v. ChiefJ. Omoniyi Olupo (1991) 7 NWLR (Pt.205)
519 at 539. We were therefore urged not to remit this appeal
to the Court below but to determine accordingly in view of other issues raised
and considered hereafter.
It is pertinent for me to advert first to the learned Senior Advocate,
Chief Williams' reaction to this question of denial of fair hearing. He
submitted that the lone issue relied on by the court below could have been
better put but definitely saw nothing wrong with it since it is enough and
right. I agree with Chief Williams. With utmost due respect to the learned
Senior Counsel for the defendant, the questions which a court or tribunal asks
itself before arriving at a decision go to the jurisdiction of that court or
tribunal to make the decision. Thus, if it asks itself the wrong question, then
it would lack jurisdiction to give the decision it may give. In the case of N.P.A. v. Panapina (1974)
1 NMLR 82 at 15, this court with citing approval the
following passage from the judgment of Lord Pearce in theANISMINIC
CAS£ (1969) 2 A.C. 147
at 195, said:
"Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on enquiry. Or the tribunal may at the end make an order which it has no jurisdiction to make...............or it may ask itself the wrong questions ................Any of these things would cause its purported decisions to be a nullity."
1 also agree with Chief Williams that it follows from the foregoing that
in deciding whether or not the jurisdiction of the High Court is or is not
ousted by Decree 25, it is very important for that court to ask itself the
right question. Accordingly I hold that it was competent for the court below to
determine what questions the High Court should have asked itself in deciding
the aforementioned question. It cannot be right, in my opinion, to suppose that
the court below or this court are bound by and cannot step outside the eight
questions formulated by the defendant even if it considers, as the court below
obviously does, that those are wrong ones. The defendant's argument that he was
denied a fair hearing in the failure to consider the eight questions formulated
by him cannot be sustained. Where a court is clearly convinced that the
questions which it ought to ask itself are the wrong questions, then it has no
jurisdiction to consider those questions since the answers of them are only of
academic interest. In the result, it is my view that it is a misconception to
argue that in deciding that questions so formulated are the wrong questions,
the court is contravening the right of the party to a fair hearing. For, as
clearly pointed out by this court in Kotoye
v. C.B.N. (1989) 1 NWLR
(Pt. 98) 419 at 448 (per Nnaemeka-Agu, J.S.C.):
"For the rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard before had infact been given an opportunity of hearing. Once an Appellate Court comes to the conclusion that the party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing the order/judgment thus entered is bound to be set aside."
See Section 33(1) of the 1979 Constitution. In Sheldon v. Bromfield
Justice (1964) 2 Q.B. 573 at page 578, it was held that the court or
tribunal shall give equal treatment, opportunity and consideration to all
concerned in a case. And in Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587 at 605, this court held that when a
represented party is not heard or given the opportunity of being heard in a
case the principles of natural justice are abandoned.
In the instant case, I can see no denial of the defendant's
constitutional right to fair hearing being perpetuated and so this issue is
accordingly answered in the negative.
ISSUES 3 AND 5
In dealing with these issues together which state:
3. Was not the learned trial Judge obliged to accede to the defendant's prayer on the application having regard to the fact that the plaintiffs who accepted the defendant's main contention on the effect of section 11 of the Decree had been unable to sustain the only other proposition which they have advanced in response to the defendant's argument?
4 Did not what the trial Judge said amount to accepting the
case made by the defendant?"
It is clear that these arise from ground 8
of the appeal grounds as well as issues 6 and 7 canvassed in the court below.
The defendant's grouse in respect of section 11 of Decree 25 is that in so far
as the plaintiffs are in this action seeking to enforce a right (according to
them) on a secret contract and based on a common law right which exists between
a trustor and a trustee, the action cannot be
maintained. In other words, that the section prohibits the maintenance of a:
"Suit or other proceeding.............against any person registered as the holder of a share in a bank on the ground that the title to the said share vests in any person other than the registered holder."
The argument of the defendant on the point which, in my view, is not
radically different from the submission of the plaintiffs is that the trustee
is the legal registered owner, that the trustor is
the beneficial owner in equity and that the
beneficial owner or trustor cannot any longer by court action enforce rights
which he undoubtedly has against the trustee, on the ground that the trustee is
not the true owner, but that the trustor or
beneficiary is. Put the other way, the
plaintiffs'
contention is that the
Decree only preludes the court from determining a dispute as to whether title
to a share vests in A (who is not the registered holder).
I am satisfied that both Chiefs Ajayi and Williams, Senior Advocates,
are at one in saying that in such a situation, the Decree treats the fact that
B is the registered holder of the shares as conclusive evidence of his title
thereto. That is as far as both learned Senior Counsel are ad idem. For,
while learned Senior Advocate for the defendant maintains, and this is the
point of departure between both learned Senior Advocates, the Decree applies to
an action which was filed before the decree came into force, the learned Senior
Advocate for the plaintiffs holds a contrary view. In sum, the two learned
Senior Advocates are agreed as to the meaning of interpretation to section 11
of Decree No.25 except the rider thereto, which
learned Senior Advocate for the defendant submitted, allows a cestui qui trust to be given a direction as
to what to do with the shares by the beneficial owner who, although not denied
access to the courts, the trustee may obey or refuse to obey him. Learned
Senior Advocate for the plaintiffs, for his part after spelling out the
dichotomy between a claim against a trustee who acknowledges a trust and is
carrying out the directions of the beneficiary, in which case there is nothing
to go to court over but that where he says he is the beneficiary's trustee by
denying the trust placed in him, Section 11 will not bar the beneficiary from
suing him since court must view such a situation with seriousness. The case
made for the defendant in regard to the meaning of the enactment is summed up
as follows:
The situation created by section 11 is almost identical with that created by a statute of Limitation which prevents a debt being recoverable by action after a specified period of time. It does not prevent a creditor demanding payment after the lapse of statutory period; neither does it prevent the debtor from paying the debt in such circumstances. But if the debtor were to refuse to pay, and the creditor commences an action for recovery, he will be successfully met by a plead of the Statute of Limitation in bar. This is because, in spite of the right, the remedy for enforcement is taken away by statute.
With due respect, I do not think
that the Decree in any way precludes the court from deciding a claim by A that
B holds the shares registered in his (B's) name in trust for A. This is because,
on a proper construction, it cannot be said that in such a case A would be
questioning the title of B to the shares on the ground that title is vested in
someone other than B. For while an honest trustee will allow
trust property to be transferred into the assets of a beneficiary, it will be
otherwise if the trustee is a dishonest man. In other words, what A
would be saying is:
I do not dispute that title to shares are vested in B who is the registered holder thereof. But I ask the court to declare that he holds those shares in trust for me.
I share Chief Williams' view that the fact that the Decree ought to be
given the above meaning is a well established canon of construction that a
statute should not be interpreted in a way that will enable it to be used as an
instrument of fraud.The meaning urged upon us by the
defendant, in my view, would tantamount to saying that where, before the
enactment came into force B had agreed to and accepted to hold shares in a bank
in trust for A, he is, by the enactment, authorised to treat those shares as
his own beneficial property and to keep dividends accruing therefrom
for his own use. This, I agree, is patently absurd and that such a construction
ought to be rejected. A cursory look at the Amended Statement of Claim in Suit LD/845/87 and the Second
Amended Statement of Claim in respect of Suit No. LD/938/87, depict huge sums
of money operated in joint accounts, transfers to Societe
Generale Bank from other Banks and other manner of
heavy monetery transactions between the defendant as
trustee and the plaintiffs as beneficiaries and that these took place to give
rise to the actions consolidated herein. Similarly, the defendant in his
Further Amended Statement of Defence and Counterclaim asked for certain items
to be taken account of against the plaintiffs in their mutual transactions. It
is pertinent to point out that the plaintiffs joined issues with the defendant
by filing a Reply to the Further Amended Statement of Defence and Counterclaim.
That being so, it would appear to me scandalous for one to suggest as the
defendant has done, and without as much as batting an eyelid, that if those
facts are established, the defendant would be entitled to convert the alleged fabulous millions of Naira in the
form of shares and scripts etc. It is well established that in construing or
interpreting a statute one must avoid a meaning which results in taking away
private rights of property without compensation. It was Francis Bennion in his authoritative book STATUTORY INTERPRETATION,
2nd Edition who in those immortal words at section 164 stated as follows:-
"Legislative intention is not a myth
or fiction, but a reality founded in the very nature of legislature."
On the facts of this case, the defendant's contention, if I understand
him well, is that the enactment would appear to enable him to take beneficial
rights of the plaintiffs for his (defendant's) benefit without having to pay a
kobo for the bonanza. In Maxwell on Interpretation of Statutes 12th Edition
251-252 the learned author writes:-
"Statutes which encroach on the
rights of the subject,whether
as regards person or property, are subject to a strict construction in the same
way as Penal Acts. It is a recognised rule that they
should be, interpreted if possible, so as to respect such rights, and if there
is any ambiguity the construction which is in favour of the freedom of
individual should be adopted.One aspect of
this approach to legislation is the presumption that a statute does not
retrospectively abrogate vested rights, another is the presumption that
proprietary rights are not taken away without provision being made for
compensation." (Italics is mine for comments)
On the need to discourage a statute that is capable of retrospectively
abrogating proprietary rights, I need only refer to the decision of this court
in the case of DIN v. Attorney General of the Federation (1988) 4 NWLR (Pt.87) 147, where it was
held inter alia that statutes which encroach on the rights of a subject,
be they personal or proprietary rights, attract strict construction by
the courts; they are construed fortissime
contra preferentes, if possible so as to respect
such personal or proprietary rights.
Further, on the need to discourage retrospectively, the word "shall
be maintained" as used in section 11 of Decree 25 (see for definition
of the section at page 1 ante) it is my view that bringing to bear a strict
interpretation to those words, they ought to be construed as having retroactive
effect. In this wise, I adopt what Stroud's Judicial Dictionary relevantly says
about the word "maintain". It states:
"To maintain" an ACTION is to support one which has already
been brought (per Platt B. Moon v. Durden; 2 Ex.
22, cited BROUGHT) but the majority of the court in that case held that, though
the Gaming Act, 1845 provided that no suit should he "brought or
maintained" for the recovery of a wager, yet that was not enough to give
the Act a RETROSPECTIVE effect so as to prevent a plaintiff, who had begun his
action for a wager before the act was passed from going on with it after the
passing of the Act. (Italics mine for emphasis)
While the majority decision accord with my view, it is merely
persuasive. See also Halsbury's Laws of England 4th
Edition paragraph 906, page 557 where the learned authors say:
Unless it is clearly and unambiguously intended to do so a statute should not be construed so as to interfere with or prejudice established private rights under contracts or the title to property or so as to deprive a man of his property without his having an opportunity of being heard; in particular, an intention to take away property without giving a legal right to compensation for the loss of it is not to be imputed to the legislature unless that intention is expressed in unequivocal terms.
See also section 40( 1)(a) and (b) of the 1979
Constitution which provides:
"40.(1)No movable property or any interest in an immovable
property shall be taken possession of compulsorily and no right over or
interest in any such property shall be acquired compulsorily in any part of
(a) requires the
prompt payment of compensation therefor; and
(b) gives to any
person claiming such compensation a right of ' access for the determination of
his interest in the property • and the amount of compensation to a court of law
or tribunal or body having jurisdiction
in that part of
In a country where for over 24 years, Decrees passed by the Military Administration containing ouster clauses have been the rule rather than exceptions, to import into Decree 25 such a retrospectivity would, in my view, do violence to the legislature's intention and constitute a breach of the plaintiffs' fundamental rights enshrined in the 1979 Constitution. See also:
1.
2. P eenok
Investment Limited v. Hotel Presidential Ltd (1982) 12 S.C. 1 at 25.
Finally, when it is known that the writs bringing to life the two
consolidated actions from which the appeal herein emanated in 1987 and that
Decree No. 25 was promulgated in 1991, under no pretext, guise or guile ought
section 11 of the Decree to affect rights, equitable or legal that had accrued
before the Decree came into force. In other words, retrospectivity
ought not to be allowed to fetter such rights unless unequivocally provided
for. Fortunately, the Decree makes no such express provision and all I have to
do is to give it its ordinary meaning. My answer to both issues 3 and 5 is in
the negative
ISSUE 4:
Learned Senior Advocate for the defendant has submitted on this issue
which asks;
“Does the proviso to section
11 create any ambiguity or alter or affect the meaning of section 11 in any
way?"
that it is meant to make the meaning of
section 11 of Decree 25 clearer. That this must be so, he argues, is because
(i) The
proviso is designed to exclude from the operation of the main body of
section 11 two specific cases which fall within the class affected by the
operation of section 11.
(ii) Both minors and persons suffering from
mental illness are persons who lack legal capacity to hold land; but whose
properties are held legally on their behalf by Trustees appointed by the courts
or under the
authority of the laws of the land and who hold legal estates on behalf of the
beneficial owners the infants and persons of unsound mind.
(iii) Without the proviso to section 11,
children and persons suffering from mental illness whose property are held on
their behalf by Trustees who have the legal estate, would be unable to enforce
their rights as beneficial owners by court action because of the provisions of
the body of section 11 which bars their rights.
(iv) It follows that the main body of section 11 is designed and intended to bar the right of action of beneficiaries in all other cases in which shares in the bank are claimed to be held by one person as Trustee for another.
With utmost due respect to learned counsel for the defendant, this
submission on the proviso cannot be absolute, lacking as it does, the
unqualified authority attributed to it. The reason is that the court will not
modify, enlarge or contract the scope and meaning of any enactment merely
because of the proviso to that enactment. It was Lord Herschell who put it lucidly and unambiguously in the case
of Western Derby Union v. Metropolitan Life Assurance Society (1897) A.C 647 H at pages 655 to 656 thus:
"I decline to read into any enactment
words which are not to be found there, and which would alter its operative
effect because of provisions to be found in any proviso. Of course a
proviso may be used as a guide in the selection of one or other of two
possible constructions of the words to be found in the enactment, and shew when there is doubt about its scope, when it may
reasonably admit of doubt as to its having this scope or that, which is the
proper view to take of it; but to find in it an enacting provision which
enables something to be done which is not to be found in the enactment itself
on any reasonable construction of it, simply because otherwise the proviso would
be meaningless and senseless, would, as I have said, be in the highest degree
dangerous, and for this reason; one knows perfectly well that it not unfrequently happens that persons are unreasonably
apprehensive as to the effect of an enactment when there is really no question
of its application to their case; they nevertheless think that some court may
possibly hold that it will apply to their case , and they suggest if it is not
intended to be applicable no harm would be done by inserting a proviso to
protect them; and, accordingly, a proviso is inserted to guard against
the particular case of which a particular person was apprehensive, although the
enactment was never intended to apply to his case, or to any other similar
cases at all."
Commenting on the views expressed by Lord Herschell,
Lord Davey declared at page 657 as follows:-
"My Lords, it seems to me that the
whole argument of the appellants really comes to the old and apparently
ineradicable fallacy of importing into an enactment, which is expressed in
clear and apparently unambiguous language, something which is not contained E
in it, by what is called implication from the language of a proviso which
may or may not have a meaning of its own. I entirely agree with what has fallen
from my noble and learned friend opposite (Lord Herschell)
upon this subject."
Since the provisions of section 11 of Decree No.25
are in themselves "precise and unambiguous, then no more can be necessary
than to expound those words in their natural and ordinary sense. The words
themselves alone do, in such case,declare
the intention of the law giver......... .."See the celebrated Peerage
Case (1843-60) All E.R. 54 at 63 (per Tindal,
CJ.)- While I am therefore not persuaded to hold, as did the learned trial
Judge, that an ambiguity resulted in the interpretation of section 11 of Decree
No.25 (ibid), I am nonetheless satisfied that
that section does not bar the claims of the plaintiffs from being maintained
against the defendant. This is because, inspite of
Mr. Ladi Williams' concession that "we cannot
maintain a suit or proceeding on the ground that the title of the said shares
vests in us," connoting that:
(i) The defendant is the
registered holder of the shares;
(ii) The shares are vested
in the defendant:
(iii) The defendant holds the
shares in trust for the plaintiffs;
that
concession presupposes that the defendant is amenable to the plaintiffs'
direction. Once the defendant denies accountability that the plaintiffs are the
beneficial owners or the semblance of such a conduct to wit: that
(a) the ground upon
which the plaintiffs inter alia claim Rectification of the Register of
Members of the Company that the shares do not truly belong to the defendant (in
whose name they are registered) but in the plaintiffs;
(b) the ground upon
which the plaintiffs claim a declaration that the defendant holds the shares as
Trustee for them and that they and not him are the true owners of the shares
the jurisdiction of the trial court to
look into the matter from the date the enactment took effect, which I hold
should operate prospectively, ought not, in my respectful view, to be ousted.
In the light of this, the conclusion arrived at by the court below to the
effect that
"It is my respectful view that to that extent the jurisdiction of the court is not ousted as the respondents are not seeking to maintain a suit or proceeding against the appellant that the title of the shares are not vested in him"
cannot, in my opinion,
be faulted and should be allowed to stand along with other conclusions arrived
at by it.
The result of all I have been saying is that the decisions of the two
courts below being clearly concurrent findings which this court by a long line
of decided cases has always held it will be loath to interfere with unless the
appellant can show special circumstances either that there was a miscarriage of
justice or serious violation of some principles of law or procedure or that the
findings are erroneous, i.e. error in substantive or procedural law .
1. Lokoyi
v. Olojo (1983)8 S.C. at 73; (1983) 2 SCNLR 127;
2. Ezewani
v. Onwordi (1986) 4 NWLR
(Pt.33) 27;
3. Lamai
v. Orbih (1980) 5-7 S.C. 28 and
4. Balogun
v. Amubikahun (1989) 3 NWLR
(Pt. 107) 18, to mention
but a few, I will decline to
disturb the decision in the instant case.
Finally, the case in hand being an interlocutory appeal where care and
caution ought to be exercised not to make comments or findings which may have
the effect of affecting the merits of the case or remove the substratum
thereof, the less said about the claims disclosed in the parties pleadings
which ought to be kept more or less sacrosanct before hearing is embarked upon,
the better.
For these reasons and those given by my learned brother Kutigi, J.S.C., with which I had signified my concurrence,
I will myself dismiss this appeal and affirm the decisions of the two courts
below. The case is remitted to the trial court for the parties to continue with
the hearing thereof. I award N1000.00 costs to the
plaintiffs/respondents.
Judgement
Delivered by
Yekini Olayiwola
Adio J.S.C
The respondents, as plaintiffs filed an action, Suit No. LD.845/87 against the appellant in the Lagos High Court. Their claim, as stated in their Amended Statement of Claim, was as follows:
"(1) A declaration that the 2,400,000 shares
and the Bonus Script and other shares attached thereto standing in the name of
the defendant in the Register of Shareholders of Societe
Generale Bank (Nigeria) Limited is held by him in
trust for the plaintiffs (or alternatively) for the 2nd plaintiff;
(2) An order directing an inquiry into the
amount of any dividends which
may have been received by the defendant as holder of the aforementioned shares
up to the date of the judgment herein;
(3) An order of injunction restraining the
defendant from holding or dealing with the aforesaid shares otherwise than as
trustee for the plaintiff and in accordance with the lawful direction of .the
plaintiff or the appropriate authorities.
(4) An order for rectification of the
Register of Shares to give effect to any judgment delivered herein."
The appellant filed an Amended Statement of Defence and a counter-claim.
For the present purpose, it is sufficient to state that the counter-claim was
as follows:-
"46. Whereupon the defendant by way of
counter-claim claims against C the 2nd plaintiff the sum of N730,000.00 being money advanced to the 2nd plaintiff or to his
order at his request.
47. The defendant also claims interest thereon at the rate of 15% per annum from the 15th day of May, 1986 until payment."
Subsequently, the 2nd respondent alone, Dr. Olusola Saraki, instituted another action, Suit No. LD/938/87, in the same court against the appellant and, according to the Amended Statement of Claim, the claim was as follows:-
"(1)
a declaration that the 4,579,460 shares
standing in the name of the defendant in the Register of Shareholders of Societe Generale Bank (
(2) An
order directing an inquiry into the amount of any dividends which may have been
received by the defendant as holder of the E aformentioned
shares up to the date of the judgment herein.
(3) An order of injunction restraining the defendant from holding or dealing with the aforesaid shares otherwise than as
(4) An order for rectification of the Register of Snares to give effect to F any judgment delivered herein.
(5) An order for the refund of the sum of N70,000.00 being balance of the N800,000.00 held by the
defendant on the plaintiffs behalf."
The Second Amended Statement of Defence filed
by the appellant contained a counter-claim as follows:-
(i) A declaration that of the 6,876,840 shares standing in the name of the plaintiff in the Register of Members of Societe Generale bank Nigeria Limited 2,783,483 thereof are not held by the plaintiff beneficially but upon trust for the plaintiff and the defendant for disposal as they shall both agree to deserving Nigerians of their choice,
(ii)
An injunction restraining the
plaintiff from dealing with the said shares as if he were sole beneficial
owner."
The two suits were consolidated and hearing had commenced and had gone on for some years before the appellant, at a certain stage, filed an application which was based on section 11 of the Banks and Other Financial Institutions Decree 1991 that was promulgated in June 1991, for an order –
“Striking out the consolidated suits herein on the ground that this Honourable Court has no jurisdiction to continue to entertain same and or allow the proceedings to be maintained against the defendant/ applicant."
In order to enable one to fully understand the issues involved, it is
necessary to set out the provisions of section 11 of the Banks and Other
Financial Institutions Decree 1991. The provisions are as follows:
"11. Notwithstanding anything contained in any law or in any contract or instrument, no such or other proceeding shall be maintained against any person registered as the holder of a share in a bank on the ground that the title to the shares vests in any person other than the registered holder.
Provided that nothing in this section
shall bar a suit or other proceedings on behalf of a minor or person suffering
from any mental illness on the ground that the registered holder holds the
share on behalf of the minor or person suffering from mental illness."
The learned trial Judge after consideration of the evidence before him
and the submissions of the learned counsel for each party,
dismissed the application. He held that the provisions of section 11 of the
Decree appeared to be capable of being interpreted in two ways and that the
question whether the appellant held the shares in question in trust for both or
one of the respondents was yet to be determined. On the whole, he stated, inter
alia, as follows:-
If section 11 had been unambiguous, I can only take the intention of the law maker from the words, they have used in the provision. In the face of two possible constructions it is the duty of the court not only to E avoid unreasonable, artificial or anomalous construction but to adopt the more reasonable construction and hold that section 11 is intended to protect the title or the legal title of a registered shareholder in the bank. It is not in dispute as far as the claims go that the titles to the shares held by the defendant in S.G.B.N. vest in him. I do not find that section 11 bars this suit or other proceeding F based on the claim in the first four paragraphs of the consolidated suits from being maintained against the defendant. The question of whether or not there is a trust concerning the shares in the name of the defendant in S.G.B.N. is far from being determined and cannot be until the whole evidence is taken.
Dissatisfied with the ruling of the learned trial Judge, the appellant
appealed to the Court of Appeal which dismissed the appeal. The only issue for
determination in this case formulated by the learned counsel for the
respondents was as follows:
Whether the claims contained in the statement of claim in this action can, strictly be regarded, be (sic) described or categorized as a claim by the plaintiff or either of them that the title to the shares registered in the name of the defendant vests in them or either of them rather than in the said defendant.
The court below pointed out that the issue
before it was the correct interpretation of section 11 of the Banks and Other
Financial Institutions Decree 1991, No. 25 of 1991, and applying the
said interpretation to the claims in this case so as to determine whether the
learned trial Judge had jurisdiction to deal with this case or not. It also
pointed out that the provision was a provision that ousted the jurisdiction of
the court to entertain certain matters in regard to shares in a bank and that,
for that reason, the provision should be construed strictly. The court below
then went on:
Thus, if any person brings an action in
any court to say that title of the shares in a bank registered in A's name does
not vest in A but in B, the jurisdiction of the court is ousted from
entertaining such action. The registration of the shares of a Bank in the name
of a person is absolute as to the person in whom the title to the shares vests.
The Decree is clear on this and gives no room for argument or speculation. The
only issue in this case is whether A in whose name the shares are registered
can hold the same in trust for a third party (D). The Decree is silent on this.
In interpreting a statute, a court does not import into it that it did not say.
The Decree talks of title or a person registered as holder. It does not talk
about beneficial interest in the said shares or whether the person in whom the
title vests can or cannot hold the shares in trust for another person.
The present suit does not challenge or
deny that the appellant is the registered holder of the shares in question or
that the shares are vested in him. No. What I understand him to be saying is-
'I concede that the shares are vested in you but you hold it (sic) in
trust for me. It is my respectful view that to that extent the jurisdiction of
the court is not ousted as the respondents are not seeking to maintain a suit
or proceeding against the appellant that the title to the shares is not vested
in him. I therefore hold that the court below has jurisdiction to continue the
consolidated suits which is the subject of this appeal.
Dissatisfied with the judgment of the court below, the appellant has
lodged a further appeal to this court. The parties have, in accordance with the
rules of this court, duly filed and exchanged briefs. The appellant filed the
appellant's brief which was amended with the leave of this court. The
respondents filed a respondents' brief and the
appellant filed a reply brief. The five issues for determination formulated in
the appellant's brief are as follows:
(1) Was the issue which the Court of Appeal
formulated and decided the proper issue that arose for determination before it?
(2) Did the refusal by the Court of Appeal to
consider the eight issues formulated by the defendant/appellant as arising from
his Grounds of Appeal constitute a denial of fair hearing?
(3) Was not the learned trial Judge obliged
to accede to the defendant's prayer on the application having regard to the
fact that the plaintiffs who had accepted the defendant's main contention on
the effect of section 11 of the Decree had been unable to sustain the only
other proposition which they had advanced in response to the defendant's
argument?
(4) Does the Proviso to section 11
create ambiguity or alter or effect the meaning of
section 11 in anyway?
(5) Did not what
the learned trial Judge said amount to accepting the case made by the
defendant?"
The respondents formulated only one issue for determination in their
brief. In their view, the question for determination in this appeal as in the
courts below involved a decision as to whether Decree 25 had effectively put an
end to the rights of a beneficiary under a trust where the property subject to
the trust are shares in a bank. Some of the questions raised hi this appeal can
be dealt with straightaway B in that they are covered by
well-established legal authorities. One is that when an objection is taken that
a court has no jurisdiction to hear or to continue the hearing of a suit, only
the averments in the Statement of Claim of the plaintiff are relevant for the
determination of the question. SeeAdeyemi v. Opeyori, (1976) 9-10 S.C. 31.
The other is that an objection that a court has no jurisdiction to entertain a
matter or an action is very fundamental. It can be raised at any stage of the
proceedings in the High Court, Court of Appeal and in this court by the parties
or by the. court. See Oloriodev.
Oyebi (1984) 1SCNLR 390; (1984) 5
S.C. 1; and Oloba v. Akereja
(1988) 3 NWLR (Pt.
84) 508. So, there was nothing wrong with the consideration
of it by the court below especially when, in this case, the determination of
the question was a main or vital issue.
The learned Senior Counsel for the appellant, in relation to the
question raised under the third issue,
referred to the statement made by the learned counsel for the respondents, Mr. Ladi Williams, when he was making submissions in the court
of trial, and the learned senior counsel for the appellant submitted that the
learned trial Judge and the court below should have granted the appellant' s
prayer in his application as the respondents who had accepted the appellant's
main contention on the effect of section 11 of the Decree were unable to
sustain the only proposition which they advanced in response to the appellant's
argument. The alleged submissions of Mr. Ladi
Williams, which were not disputed during the proceedings before us, may be
classified into two paragraphs as follows:
the first point I
propose to urge on the court is that we are not and do not want to be
misunderstood that we are challenging the fact that the defendant is registered
as the owner of the shares in F S.G.B.N. We concede
the point. We also say that the title to the shares are
in the defendant.
A close perusal of section 11 shows that
what the section is talking about is maintaining proceedings or suit against
the holder of the shares i.e. in whom the shares vest. In other words, we
cannot maintain a suit or proceeding on the ground that the title to the said
shares vests in us. What we are saying is that, this is not to be interpreted
to mean where you have a cestui qui trust or
beneficiary claiming under a trust, such beneficiary cannot direct the person
in whom title vests how to deal with the shares and dividends attached thereto.
It was further submitted by the learned
senior counsel for the appellant that the point on which the parties to this
suit disagreed was clearly set out in the last sentence in the submissions of
Mr. Ladi Williams in the second paragraph above.
In
the case of the respondents, the submissions made for them was that the question
for this court to determine was whether the claims contained in the Statement
of Claim in this action (or any of them) could strictly be regarded, described
or categorized as a claim by the respondents or either of them that the title
to the shares registered in the name of the appellant vested in them or either
of them rather than in the said appellant. It was argued that the Decree only
precluded the court from determining a dispute as to whether title to a share
vested in A (who was not the registered holder) or in B (who was the registered
holder). It was conceded, on behalf of the appellant, that the Decree treated
the fact that B was the registered holder of the shares as conclusive evidence
of his title thereto though the Decree in no way precluded the court from
deciding a claim by A that B held the shares registered in his (B's) name in
trust for A. It was also submitted that the meaning of the relevant provisions
of the Decree canvassed by the respondents should be adopted because a statute
should not be interpreted in a way that would enable it to be used as an
instrument of fraud.
In my view, the relevant question, in the present connection, is whether
all or any of the reliefs claimed in both
consolidated suits could be regarded, described or categorized as a claim by
the respondents or either of them that the title to the shares registered in
the name of the appellant vested in them or either of them rather than in the
said appellant. This is the first aspect of this case which is whether all or
any of the reliefs aforesaid came within the category
of matters in relation to
which an action could not be maintained. The second aspect, which
will be dealt with later, is whether the Decree has a retrospective effect. I
have already set out above the reliefs claimed in
each of the consolidated suits. If the respondents had specifically claimed
that they or any of them or any person, other than the appellant, owned the
shares in question and, for that reason, they or any of them or that other
person should be substituted and registered as the shareholder or shareholders,
as the case might be, in place of the appellant, the situation would have been
simple and straight forward; the action could not be maintained by virtue of
section 11 of the Decree. In order that the provisions of sections 11 of the
Decree may apply, there need not really be such a specific claim. It will be
enough, whatever way in which the claim, against the registered holder of
shares in a bank, is framed or presented, if the basis or the ground upon which
the claim is in reality based is that the title to the shares is vested in
any person other than the registered holder. Bearing the foregoing principles
in mind, I now proceed to examine each of the reliefs
claimed by the respondents. In doing so, I take into consideration the
averments in the pleadings of the respondents in each of the consolidated
suits. Also to be taken into consideration is the fact that by being registered
as a holder of shares in a company the registered holder becomes entitled to
certain rights,
benefits and privileges. Excepts as
otherwise provided by the law and the provisions of the Memorandum and Articles
of Association of the company, he has the right to sell, Mortgage or otherwise
dispose of the shares. He is entitled to receive dividends on the shares
registered in his name and to keep the dividends so received for his own use.
Dividend is the payment made out of profits to the shareholders of a company
from time to time. In other words, the essence of being registered as owner or
a holder of shares in a company is that one is, inter alia entitled to
enjoy in one's right the foregoing rights, benefits and privileges. Where the
situation is that the person who is the registered holder of shares in a company
holds the aforesaid shares in trust for another person, all the rights,
benefits and privileges can no longer be for his benefit. He may not sell,
mortgage or otherwise dispose of the shares without the consent of the
beneficiary or keep the money received as dividends for his own personal use.
The aforesaid shares are in law and in fact owned not by him personally
but by the beneficiary who, in his own right, is entitled to demand payment to
him by the trustee of all moneys received as dividends on the shares. The
beneficiary may also, in a proper case, demand that the shares be sold and the
purchase price be handed over to him(beneficiary). In
the circumstance, the relief claimed in item (1) of the respondents' claim in
each of the consolidated suits for a declaration that a certain number of
shares, bonus, script and other shares attached thereto standing in the name of
the appellant in the register of shareholders of the bank was held by him in
trust for the respondents or alternatively for the 2nd respondent is, prima
facie, caught by the provision of section 11 of the Banks and other
Financial Institutions Decree 1991. The situation is the same in the case of
the relief in item (2) of the respondents' claim in each case of the
consolidated suits, for an order directing an inquiry into the amount of any dividend which
might have been received by the appellant as holder of the shares in question
up to the date of the judgment herein. The situation is also the same in the
case of the relief in item (3) of the respondent's claim in each of the
consolidated suits for an order of injunction restraining the appellant from
holding or dealing with the shares in question otherwise than as trustee for
the respondents and in accordance with the lawful direction of the respondents
or the appropriate
authorities. The relief claimed in item (4) of the respondents'
claim in each of the consolidated suits was clearly caught by the provisions of
section 11 of the Decree. It was for an order of rectification of the register
of shares to give effect to any judgment herein. The said relief clearly showed
the real intention of the respondents that what was intended was to deprive the
appellant of all the rights, benefits, privileges and other things which his
registration as holder of the shares conferred on him. Section 11 of the Decree does
not apply to item (5) of the respondent's claim in Suit No. LD/938/87
for a refund of the money held by the appellant on the respondent's behalf and
items (1) and (2) of the counter-claim in Suit No. LD/845/ 87 but the
provision of the section applies to item (1) and (2) of the counter-claim in
Suit No. LD/938/87. The legal position in the case of
the reliefs set out in the items in the claims or
counter-claims in the consolidated suits, to which the F provisions of section
11 of the Decree, prima facie, applies, is as if it were in fact that
the title to the shares in question, which were registered in the name of the
appellant, vested in the respondents or either of them rather than in the
appellant. The aforesaid claims and counter-claims in the consolidated suits
could, in reality, be regarded or categorized as a claim by the respondents or
either of them that the title to the shares, registered in the name of the
appellant, vested in them or either of them rather than in the appellant.
I have already quoted above the statement or submission credited to the learned
counsel to the respondents in the trial court, Mr. Ladi
Williams. If, as submitted by him, the respondents should not be misunderstood
that they were challenging the fact that the appellant was registered as the
owner of the shares in S.G.B.N. and if the
respondents conceded the point and also said that the title to the shares was
in the appellant and that they could not maintain a suit or proceeding on the ground that the
title to the said shares vested in him, then the aforesaid reliefs
in the consolidated suits which, according to me, were, prima facie, affected
by section 11 of the Decree were misconceived. The registration of the
appellant as a holder of the aforesaid shares was unconditional. He was
registered as a holder of the shares in his own right. A suit seeking to
convert his registration as a holder of the shares in S.G.B.N.
unconditionally as an absolute owner in his own right to a holder of the shares
as a trustee for the respondents or either or of them is a suit being
maintained against the appellant, a person registered as the holder of the
shares in question in S.G.B.N., on the ground that
the title to the shares vested in the respondents or either of them. That was,
in reality, what the consolidated suits were. The question whether, since the
consolidated suits
were instituted in 1987, section 11 of the Decree applied to them
is another matter which will be dealt with hereunder.
With reference to the contention that the implication of holding that
section 11 of the Decree applied to the claims and counter-claimed mentioned
above would be that shares of a bank could not be held by a registered holder in
trust for a beneficiary, the relevant question is whether the provision of the
section is clear on
the point and I have no doubt in my mind that it is. If the
law-makers, in their wisdom, thought, that that was what they wanted and made
specific provisions which were clear on the point it is not the court's duty or
business to try to avoid the
consequences. See Aya v. Henshaw, (1972) 5 S.C. 87 at p. 95. So, what the court
should do, in the circumstance, is to limit itself to the interpretation of the
law. What the law should or should not be is outside the function of the court.
See D Abioye v. Yakubu,(l991)5 NWLR (Pt. 190)
130. Consequently, if the law-makers made it clear in the law made by them
that they did not like an arrangement whereby shares of a bank are held, by a
registered shareholder of the shares, in trust for another person and, in order
to discourage the practice, further provided, in clear-terms, restrictions of
legal proceedings in respect of shares purportedly held in trust for another
person as had been done in section 11 of the Decree, the court will give effect
to the legislation.
The next question for
consideration is whether retrospective effect should be given to the provision
of section 11 of the Decree. The view of the court below was that the learned
trial Judge had jurisdiction to continue proceedings in relation to the
consolidated suits which in effect meant that the provision of the section did
not have retrospective effect so as to make it affect the consolidated suits instituted
in 1987. The submission made for, the appellant was that the effect of the use
of the word "maintained" in the provision of the section was that its
operation was retrospective and it affected the consolidated suits.
The date of commencement of the Decree, as stated in the marginal note
in it, was 20th June, 1991. The date of commencement of a statute is the date
that it comes into operation. In the circumstance, the date on which the Decree
itself, which included section 11 thereof, came into operation was the 20th
June, 1991. There was nothing in the Decree to the effect that the Decree or
any part or section thereof shall be deemed to have come into operation on a
date earlier than the date of commencement stated in the Decree. Also, there
was no provision in the Decree that actions or proceedings on matters to which
the provision of section 11 of the Decree applied, which were pending in courts
on the date of commencement of the decree, should abate or be discontinued. If
it is intended by the lawmaker that any part or section of a statute should
come into operation on a date earlier than the date of commencement of the
statute itself provision to that effect will be made in clear term. Section 331 of the Constitution of the Federal Republic of Nigeria,
1989, provided that the constitution should come into force on the 1st day of
October, 1992. It was, however, provided in section 3(2) of the
Constitution of the Federal Republic of Nigeria (Promulgation) Decree 1989, No.
12 of 1989, that notwith- A standing section 331
of the constitution, where circumstances so warrant, the president might, by
order, appoint a date earlier than 1st October, 1992 for the coming into force
of any of the provisions of the Constitution specified in the order. Where an issue
arises upon proceedings before the court, the jurisdiction of the court to
dispose of that issue can only be ousted by plain words. See
Attorney-General v. Boden, (1912) 1 KB 539.
Further, statutory provisions should not be given retrospective effect unless
where it is clearly stated that they should have that effect. See Udoh v. Orthopaedic
Hospital Management Board, (1993) 7 NWLR (Pt.
304) 139. The question then is whether it was clear from the provisions of the
Decree or the provisions of section 11 thereof that the provisions of section
11 were to have retrospective effect. Those who contended that the provisions
of section 11 were retrospective based their contention on the use of the word
"maintain" in the section which, according to the definition in the
Black's Law Dictionary, 5th edition meant, inter alia, continue, keep in
existence or continuance, sustain, keep from collapse a suit already began. It,
however, was also stated in the said Dictionary that to maintain an action or
suit might mean to commence or institute it. Further, in Moon v. Durden, 2 Ex. 22, the majority decisions was that the
use of the words: "brought or maintained" was not sufficient to make
the Gaming Act, 1845 have a retrospective effect. It could well be that the
meaning to be given to the word "maintained" depends on the context
in which the word is used.
The foregoing is not all. It was the word "maintained" that
was used in section 11 of the Decree. It cannot reasonably be said that it
meant: "shall be brought" and at the same time also meant "shall
be continued" which are distinct and separate expressions. If it is held
that the word "maintained" meant "continued" then actions commenced before the date of
commencement of the Decree (20th June, 1991) will be affected by section 11 of
the Decree but those commenced after the date of commencement of the Decree
(20th June, 1991) will not be affected. On the other hand, if the word
"maintained" meant "shall be brought" then action
instituted on or after the date of commencement of the Decree (20th June, 1991)
will be affected by the provisions of section 11 of the Decree but those
instituted, like the consolidated suits,
before the date of commencement of the Decree will not. The interpretation
which may have the effect of making section 11 of the Decree have a
retrospective effect will be absurd as it cannot be reasonably inferred that
the law makers intended that suits instituted before the date of commencement
of the Decree should be affected and those instituted after the date of commencement should not be affected. That
sort of situation will be absurd. A statute is not to be construed in such a way that it will
manifestly lead to absurdity. See Udoh's case,
(supra). Further, the right of the subject to have access to the courts
may be taken away or restricted by statute, but the language of any such
statute will jealously be watched by the courts and will not be extended beyond
its least onerous meaning unless clear words are used to justify such
extension. See Halsbury's Laws of
Consequently, I too dismiss the appeal and, for different reasons stated
in this judgment, affirm the judgment of the court below. Case is remitted to
the
Judgement(Dissenting)
Delivered by
Michael Ekundayo
Ogundare J.S.C
This is a further appeal to this Court against the judgment of the Court
of Appeal Lagos Division, Coram; Sulu-Gambari, Tobi and Ubaezonu, JJ.C.A. That Court had dismissed the appeal to it of the
defendant, N. A.B. Kotoye
against the ruling of the
The Plaintiffs, Mrs.F.M. Saraki
and Dr. Olusola Saraki had
in Suit No. LD/ 845/87 instituted in 1987, claimed
from the defendant as per their amended Statement of Claim the following reliefs:
"(I) A declaration that the 2,400,000 shares
and the Bonus, Script and other shares attached thereto standing in the name of
the Defendant in the Register of Sharesholders of Societe Generate Bank (Nigeria) Limited is held by him in
trust for the Plaintiffs (or alternatively) for the 2nd Plaintiff;
(2) An order directing an inquiry into the
amount of any dividends which may have been received by the Defendant as holder
of the afore-mentioned shares up to the date of the judgment herein;
(3) An order of injunction restraining the
Defendant from holding or dealing with the aforesaid shares otherwise than as trustee
for the Plaintiff and
in accordance with the lawful direction of the Plaintiff or the
appropriate authorities;
(4) An order for rectification of the
Register of shares to give effect to any judgment delivered herein."
The defendant in a counter-claim
in return claims against the 2nd plaintiff as per paragraphs 46 and 47 of his
amended Statement of Defence and Counter claim, as hereunder;
"46. Whereupon the Defendant by way of
counter-claim claims against G the 2nd Plaintiff the sunvof
N730,000.00 being money advanced to the 2nd
Plaintiff or to his order at his request.
47. The defendant also claims interest
thereon at the rate of 15% per annum from the 15th day of May, 1986 until
payment." In Suit No. LD/938/87 Dr. Olusola Saraki alone claimed
against the Defendant N.A.B. Kotoye,
as per his 2ndamended Statementof
Claim, the following reliefs:
"(1) A declaration that the 4,579,460 shares
standing in the name of the defendant in the Register of Shareholders of Societe Generale Bank (
(2) An order directing an inquiry into the
amount of any dividends which may have been received by the defendant as holder
of the aforementioned shares up to the date of the judgment herein.
(3) An order of injunction restraining the
defendant from holding or A dealing
with the aforesaid shares otherwise than as trustee for the plaintiff and in
accordance with the lawful direction of the plaintiff or the appropriate
authorities.
(4) An order for rectification of the
Register of Shares to give effect to any judgment delivered herein.
(5) An order for the refund of the sum of N70,000.00 being balance of the N800,000.00 held by the
defendant on the plaintiff's behalf."
The Defendant for his part counter-claimed against Dr. Saraki as per his 2nd further amended Statement of Defence
and counter-claim:
(i) A declaration that of the N6,876,840 shares standing in the name of the Plaintiff in the
Register of Members of Societe Generale
Bank Nigeria Limited 2,783,483 thereof are not held by the Plaintiff
beneficially but upon trust for the Plaintiff and the Defendant for disposal as
they shall both agree to deserving Nigerians of their choice.
(ii) An Injunction restraining the Plaintiff
from dealing with the said shares as if he were sole beneficial owner."
At the close of pleadings
the two suits were consolidated and proceeded to
hearing. In the course of hearing the Banks and Other Financial Institutions
Decree was, in June 1991, promulgated. Thereupon in March 1992 the defendant filed
an application praying for an order of the trial High Court.
Striking out the consolidated suits herein
on the ground that this honourable Court has no
jurisdiction to continue to entertain same and or allow the proceedings to be
maintained against the Defendant/Applicant.
The application which was supported by an affidavit was contested by the
plaintiffs. In a ruling the learned trial Judge found:
In the fact of two possible constructions,
it is the duty of the court not only to avoid unreasonable artificial or
anomalous construction but to adopt the more reasonable construction and hold
that Section 11 is intended to protect the title or the legal title of a
registered share holder in the bank. It is not in dispute as far as the claims
go that the titles to the shares held by the defendant in S.G.B.N.
vest in him. / do not find that section II bars this suit or other
proceeding based on the claim in the first four paragraphs of the consolidated
suits from being maintained against the defendant. The questionof
whether or not there is a trust concerning the shares held in the name of the
defendant in S.G.B.N. is far from being determined
and cannot be until
the whole evidence is taken.
The learned defence counsel had pointed out in his reply that the claim
in Suit No. LD/938/87 is unaffected in any way by this motion. This is a relief
for refund of the balance of certain sum allegedly held by the defendant in the
plaintiffs behalf therein. I agree with him." (Italics mine)
On appeal to the Court of Appeal, that Court after stating, correctly,
in my respectful View the issue before it in these words
The
issue before the Court is the correct interpretation of Section 11 of the
Banking and Other Financial Institutions
Decree No. 25 of 1991 and applying the said interpretation to the claims in
this case so as to determine whether
the court below has the jurisdiction to continue the case or
not.
went on later in its lead judgment, per
Ubaezonu J.C.A. to say -
"The only issue in this case is
whether A in whose name the shares B are registered can hold the same in
trust for a third party (D). (Italics mine)
It then
concluded that the trial
High Court had jurisdiction to continue the consolidated suits, subject
matter of the appeal and dismissed the appeal.
The defendant in his further appeal to this Court filed six grounds of
appeal and in his amended brief of argument set out 5 issues that is to say:
(1) Was
the issue which the Court of Appeal formulated and decided the proper issue
that arose for determination before it?
(2) Did the refusal by the Court of Appeal
to consider the eight issues formulated by the Defendant/Appellant as arising
from his Grounds of Appeal constitute a denial of fair hearing?
(3) Was not the learned trial Judge obliged
to accede to the Defendant's prayer on the application having regard to the
fact that the plaintiffs who had accepted the defendant's main contention on
the effect of Section II of the Decree had been unable to sustain the only
other proposition which they had advanced in response to the defendant's
argument?
(4) Does the proviso to section 11 create
ambiguity or alter or affect the meaning of Section 11 in anyway?
(5) Did not what
the learned trial Judge say amount to accepting the case made by the
defendant?"
The plaintiffs for their part set out in their Brief one question as calling for
determination in this appeal and that is:
"................ the
question for determination in this appeal as in the courts below involves a
decision as to whether Decree 25 has effectively put an end to the rights of a
beneficiary under a trust where the property subject to the trust are shares in
a bank."
In my respectful view having regard to the application brought by the
defendant before the trial High Court, the main question for determination in
this appeal is as to whether or not the trial court could continue with the
hearing of the Plaintiffs' suits before
it having regard to the provisions of Section 11 of Decree No. 25 of 1991.
As rightly pointed out by Chief Williams, S.A.N. in the
plaintiffs/respondents' brief in determining the question posed above by him,
it is the Statement of Claim alone that must be looked at. Chief G.O.K. Ajayi
S.A.N. conceded at the hearing of this appeal as much. I shall in the course of
this judgment have regard to the penultimate paragraphs of the plaintiffs'
pleading in the two suits. Let me begin by setting out Section II of the Decree
the correct interpretation of which is the crux of this appeal. Section II
provides:
"Notwithstanding anything contained
in any law or in any contract or instrument, no suit or other proceeding shall
be maintained against any person registered as the holder of a share in
a bank on the ground that the title to the said share vests in any person
other A than the registered
holder:
Provided that nothing in this section
shall bar a suit or other proceeding on behalf of a minor or person suffering
from any mental illness on the ground that the registered holder holds the
share on behalf of the minor or person suffering from the mental illness."
(Italics mine)
It is the contention of the
defendant, both in his brief and in his counsel's submissions, that the section
restricts the right of the plaintiffs of access to the court in respect of the reliefs sought in Suit No. LD/845/87 and in the 1st four of
the reliefs sought by Dr. Saraki
the only plaintiff in Suit No. LD/938/87 and that, therefore,
the court's jurisdiction to continue with the hearing of the consolidated suit
is ousted. For the plaintiffs' the main submission is that, although the
Decree bars
access to the court by a person who challenges the registered holder of a share
in a bank on the ground that the title to the said share vests in someone else
than the registered owner, it does not preclude a beneficiary in a trust where
the property subject to the trust are shares in a bank, from suing the trustee.
I have given careful consideration to the submissions made on behalf of
the parties by their respective leading counsel. The issue here relates to the
correct interpretation of a Statute
that restricts the citizen's right of access to the courts. At the stage at
which the defendant brought his motion the duty before the trial High Court was
to determine whether or not its jurisdiction has been ousted by Section 11 of
the Decree. The principle that has been settled in a long line of cases in this
country and other Common Law jurisdictions is well set out in the words of Nnaemeka-Agu,J.S.C. in Nwosuv.lmo
State Environmental Authority and Others (1990) All NLR
379 at page 396; (1990) 2 NWLR (Pt. 135) 688.
"The court had to be guided by the
principle that every superior court of record guards its jurisdiction
jealously. So, while a person's access to have his civil right adjudicated upon
by a court may be restricted or ousted by statute, the language of such a
statute must be construed strictly. But once, with such an approach, it is
clear that an ouster or restriction of the jurisdiction was intended and that,
from the facts of the particular case, it comes squarely within the four
corners of the statute, the court has no alternative but to hold that its
jurisdiction has been ousted. For, while a statute may provide that the
jurisdiction o f a court has been ousted with respect to a particular cause,
the court always has the jurisdiction to inquire whether on the facts and
circumstances of the particular cause, its jurisdiction has infact
been ousted or restricted: - See on this Wilkinson v. Banking Corporation
(1948) 1 K.B.721 atp.725, C.A"
Bearing this principle in mind, I shall now examine the claims
before us to determine whether or not they are caught by the provisions
of Section 11.
In Suit LD/845/87 the plaintiffs pleaded, inter alia, thus:
1. At all times material to this action
each of the Plaintiffs and the Defendant are persons registered as shareholders
in the Societe Generale
Bank (Nigeria) Limited (which is hereinafter referred to as 'the Bank') In
addition the Defendant was the Chairman of the Bank.
2. The Defendant was a very close friend
of the 2nd Plaintiff and his (2nd Plaintiff's) wife, who is the 1st Plaintiff
and both Plaintiffs regarded and treated him (Defendant) as a person worthy of
their trust and confidence,
3. The first Chairman of the Bank was the
2nd Plaintiff but he vacated that office on his election to the Senate of the
National Assembly and nominated the Defendant to succeed him.
4. In or around 1984 the Nigerian
Enterprises Promotion Board warned the Bank that unless the Nigerian
shareholders, paid up their 60% shares in the Bank's Equity, the bank wouldte sealed up. At that time the number of shares alloted but yet unpaid for and held in the name of the defendant was
960,000 whilst that similarly held by the 2nd Plaintiff was 2,240,000. The
total sum of money required to pay for the shares was thus N3,200,000 at the rate of N1 per share.
5. The second Plaintiff, although he was
detained in prison by the military authorities, managed to arrange for the
necessary funds to be made available. The total sum so made available was N4,000,000.00 and out of this sum payment was made for the N960,000
worth of shares in the name of the Defendant and N2,240,000 worth of
shares for the 2nd Plaintiff.
6.(1) In view of the
fact that the 2nd Plaintiff was in detention at the material time, the
defendant advised that the 2,240,000 shares be E registered in the name of the
1st Plaintiff and they were so
registered.
(2) Acting
on the advice of the Defendant, the 1st Plaintiff executed two deeds of
transfer (in duplicate) which were presented to her by the Defendant in 1985 in
each of which the following were left blank:
(a) the amount of the price or consideration for the transfer;
(b) the name and
address of the Transferee;
(c) the date of
execution of the transfer;
(d) the signature
of the Transferee; and
(e) the name,
signature and address of the witness to the signature of the Transferee.
(3) It
was the understanding of both the 1 st Plaintiff and the Defendant that at the
appropriate time, the name of the 2nd Plaintiff will be inserted as Transferee.
7. As a
result of the use of the money made available to the Defendant by the 2nd
Plaintiff the Defendant was able to pay for
(a) 1,164,800 shares of N1 each for which share certificate No. 000025
dated 28.12.84 was issued to her, and
(b)1,075,200 shares of Nl
each for which share certificate No. 000027 dated 31.12.84 was issued to her.
8.( 1) After signing the blank transfers relating to
the said shares, the said transfers signed by the 1st Plaintiff were handed
over to the Defendant for safe custody.
9. Differences have arisen between the
Plaintiffs and the Defendant, and these differences eventually resulted in the
resignation of the 1st Plaintiff and two other Nigerian directors of the Board
of the Bank on 25th September, 1986. 10 At all times material to the aforesaid
Board meeting of 25.9.86 and since that date, the Defendant was not on speaking
terms with the Plaintiffs.
11. Acting without the authority of the
Plaintiffs or either of them and in breach of the confidence reposed in him and
also in breach of his fiduciary duties as agent or trustee of the 1 st
Plaintiff, the Defendant fraudulently;
(i) and falsely inserted N 1,075,200.00 in words as the C amount of the
price or consideration paid to the first plaintiff in two or at least one of
the blank transfers kept with him and falsely inserted Nl,
164,000.00 in words as the amount of the price or consideration paid to the
first plaintiff in the remaining two or at least one other of the said blank
transfers;
(ii) entered his
name and address on each of the blank
instruments of transfer or on at least two of them as the Transferee;
(iii) and falsely
inserted the 25th September 1986 as the date when the instruments of transfer were Signed sealed
and delivered;
(iv) inserted his
signature where the Transferee should sign; and
(v) inserted the name,
signature ad address of one Adebayo Olawoyin as
witness to his signature as Transferee.
12A. The price which the defendant inserted in
the transfer forms was calculated at or below per value when the said shares
were at all material times and to the
knowledge of the defendant, worth more than par value and was certainly not
worth below par.
12. By reason of the matters hereinbefore
pleaded, the Defendant is accountable to the Plaintiffs (or alternatively the
2nd Plaintiff) as a trustee de son tort or as trustee or agent of the
said Plaintiff of the aforesaid shares.
What these averments amount to is
that the 2,240,000.00 shares in dispute in that suit belonged in fact to
the 2nd Plaintiff who provided the money for their purchase but that the
defendant fraudulently converted the said shares to himself and got himself
registered as the owner of the said shares. This to my mind is a clear
challenge to the defendant's ownership of the said shares.
I have examined the provisions of Section
II very carefully. True enough because it seeks to restrict the
citizen's right of access to the court, its provisions must be construed
narrowly and strictly. But, as Nnaemeka-Agu, J.S.C.
explained at pages 405 - 406 of the report in Nwosu' s
case (supra), this does not mean that the Section is to be interpreted
capriciously. Nnaemeka-Agu had said, and I agree
entirely with him:
I must advise myself that to construe a
statute narrowly and strictly does not mean that the court should arbitrarily,
in appropriate metaphor, wring a false meaning out of the language of the
statute. Rather as applied to statutes generally, it means that the court
should give a fair and natural interpretation to the statutory language as
applied to the facts of the particular case and, not straining the meaning of
the words unnecessarily but guided by certain principles, arrive at a
reasonable construction. See Dyke v. Elliott. The Gauntlet (1872)L.R.4P.C. 184. Certain principles
guide the court in such an exercise. If there should be any doubt, gap duplicity
or ambiguity as to the meaning of the words used in the enactment, it should be
resolved in favour of the person who would be liable to the penalty or a
deprivation of his right: See London and Country Commercial Properties
Investments Limited v. Attorney-General (1953) 1 All E.R.
436, at p. 441-442. If there is a reasonable Construction which will avoid the
penalty in any particular case, the court will adopt that construction. Tuck
and Sons v. Priester (1887) 19 Q.B.D. 629 atp.
638. If there is any doubt as to whether the person to be penalised
or to suffer a loss of the right comes fairly and squarely within the plain
words of the enactment, he should have the benefit of that doubt; I.R.C. v. Duke of Westminster (1936) A.C. 1 atp. 19. See on these Moxwe//.- On
Interpretation of Statutes (12th Edn.) p.239. If
after the above approach and the application of the above principles the person
to be affected comes squarely and fairly within and is affected by the words
the statute the court has no alternative but to apply it.
It has been argued that the plaintiffs are not challenging the fact that
the defendant is the registered owner of the shares; what they say is that he
is a trustee in respect of the shares whilst they particularly the 2nd
plaintiff, are the beneficial owners of the shares. I see this argument rather
ingenious. An examination of the claims and their pleadings will show clearly
that what they set out to achieve is exactly what is covered by Section 11.
Whether the defendant is a trustee-de-son-tort (or constructive trustee
as such a person is usually called), or trustee or agent of the 2nd plaintiff
in respect of the shares in dispute, - see paragraph 12 of the amended
Statement of Claim, the substance of the plaintiffs' case is to the effect that
the defendant, although a registered holder'is merely
a notional or nominal owner of the shares while the 2nd plaintiff is the true
owner. It therefore, cannot be said that the Plaintiffs are not disputing the
title of the defendant, the registered holder of the shares in dispute, to the
said shares on the ground that the shares truly belong to the 2nd plaintiff.
Claim (1) Seeks a declaration which, if granted will hold out the plaintiffs or
alternatively the 2nd plaintiff as the true owner of the shares as against the
defendant who is a registered holder of the said shares. The view I hold is
more reinforced, in my respectful view, by claims 2,3 & 4 which seek to
vest the benefits and control of these shares in the Plaintiffs or alternatively
the 2nd Plaintiff, thus making the defendant a mere notional owner and the 2nd
plaintiff the substantive owner. Section 11, in my respectful view, is aimed
against such a suit. In interpreting it, one cannot overlook the opening clause
which reads:
"Notwithstanding
anything contained in any law or in any contract or instrument"
Indeed, every word of a statute must be considered in order to determine
the true purport of the statute. Regrettably in this case it would appear that
Chief Williams closed his eyes to the opening clause of section 1 1 in urging on us his interpretation of it. A construction
which would leave without effect any part of the language of the statute will
normally be rejected.
In Olatunbosun v. NISER Council (1988) 1 NSCC
1025; (1988) 3 NWLR (Pt80)
25, the expression "notwithstanding" came up for interpretation and
it was there held by this Court that the expression "notwithstanding"
is a term of exclusion. In interpreting section 4 of Schedule 2 to NISER Act, No. 70 of 1977 which reads:
"4. Notwithstanding the provisions of the
University of Ibadan Act 1962, or of any statutes made thereunder
or any provision of this Decree but subject to such directions as may be issued
by the Council, any person who immediately before the date of commencement of
this Decree held office under the Old Institute shall be deemed to have been transfered to the New Institute established under this
Decree on terms and conditions not less favourable than .
those obtaining immediately before the commencement of
this Decree; and service under the Old Institute shall be deemed to be service
under the Institute established under Decree for pension purpose."
Oputa, J.S.C. delivering the lead
judgment Of the Court in the case (with which the other Justices agreed) observed
at page 1038 of the Report:
"The expression
"notwithstanding" is a term of exclusion. As used in Section 4 of
Schedule 2 to Act No. 70 Of 1 977, it means that no provision of the University
of Ibadan Act No. 37 of 1962, or any statute made under it, or any provisions
of the Decree itself shall be allowed to prevail over the provisions of Section
4 of Schedule 2 above. These other provisions shall be no impediment to the
measures outlined in the said Section 4 of Schedule 2. The only thing allowed
to interfere with 'deeming service in the Old Institute to have been
transferred to the New Institute' is 'such directions as may be issued to the
Council the New N.I.S.E.R./Council."
Applying this interpretation to the opening clause of section 1 1 , it is my respectful view, and I so hold, that trusts
including the rights of beneficial owners or cestui
qui trust are within the exclusion envisaged by that clause. This is made
clear by the nature of a mist The learned authors of
Snell's* Principles of Equity (27
edition) state thus, at pages 87-88:
"1. Problems of
Definition
(a) 'Trust' No one has yet
succeeded in an entirely satisfactory definition of a trust. In Underbill's Law of Trusts a trust is defined as 'an
equitable obligation, binding a person (who is called a trustee) to deal with
property over which he has control (which is called the trust property), for
the benefit of persons (who are called the beneficiaries or cestui
qui trust), of whom he may himself be one, and any one of whom may enforce
the obligation. But this is not altogether satisfactory, for it is not wide
enough to cover trusts for purposes rather than persons. Trusts of charitable
purposes (e.g., for the repairs of a church or the prevention of cruelty to
animals) may lack human beneficiaries who can enforce them.
Perhaps the most satisfactory definition
is Professor B Keeton's: 'A trust.................. is the relationship which
arises wherever a person called the trustee is compelled in Equity to hold
property, whether real or personal, and whether by legal or equitable title,
for the benefit of some persons (of whom he may be one and who are termed cestui qui trust) or for some 'object
permitted by law, in such a way that the
real benefit of the property accrues, not to the trustee, but to the
beneficiaries or other objects of the trust.'
(b) Nature. Difficult, however, though it may
be to give a simple yet satisfactory definition of a trust, it is easy enough
to grasp the general idea of it, which is that one person in whom property is
vested is compelled in equity to hold the property for the benefit of another
person, or for some purposes other than his own. Thus it has been said, some
what broadly, that 'all that is necessary to establish the relation of trustee and
cestui qui trust is to prove that the
legal title was in the plaintiff and the equitable title in the defendant.' It
is not however, always accurate to say that the trustee is the legal owner
while the cestui qui trust is the
equitable owner, for the interest of the trustee may be (and often is)
equitable only, as where a beneficiary under a settlement himself makes a
settlement of his interest while the legal ownership is still in the hands of
the trustees of the former settlement, or for some other reason the legal
estate is outstanding. It is therefore better to say that the trustee is the
nominal owner of the property, while the cestui
qui trust is the beneficial owner."
Chief Williams, for the plaintiffs, had argued in his Brief thus:
The case for the plaintiffs: The Decree, in
plain terms, prohibits the maintenance of certain suits or other proceedings.
The class of suits or proceedings affected are, in the
exact words of the enactment -
'Suit or other
proceeding................... against any person registered as the holder of a
share in a bank on the ground that the title to the said share vests in any
person other JJ than the registered holder.
To
put the point very shortly, the Decree only precludes the court from
determining a dispute as to whether title to a share vests in A (who is not the
registered holder) or in B (who is the registered holder). This is because the
Decree, in effect, treats the fact that B is the registered holder of the
shares as conclusive evidence of his title thereto. But the Decree in no way
precludes the court from deciding a claim by A that B holds the shares
registered in his (B 's) name in trust for A. This is
because, on a true analysis, it cannot be said that in such a case A would be
questioning the title of B to the Shares on the ground that title is vested in
someone other than B. What A would be saying is:
I do not dispute that title to shares are vested in B
who is the registered holder thereof. But I ask the court to declare that he
holds those shares in trust for me.
The fact that the Decree ought to be given this
meaning is reinforced by the fact that it is a well established rule of
construction that a statute should not be interpreted in a way that will enable
it to be used as instrument of fraud. The meaning urged upon the court by the
Appellant would be tantamount to saying that where, before the enactment came
into force B has agreed to and accepted to hold shares in a Bank in trust for
A, he is, by the enactment, authorised to treat those shares as his own
beneficial property and keep dividends accruing therefrom
for his own use. This is patently absurd that such a construction ought to be
rejected. In this case the facts pleaded in the Statement of Claim are such
that it would be highly scandalous to suggest that, if those facts are
established, the defendant would be entitled to convert to his own use all
shares bought with Plaintiff's money which he (defendant) had agreed to hold on
trust for the Plaintiff. It is well established that in construing or
interpreting a statute one must avoid a meaning which results in taking away
private rights of property without compensation. On the facts of this case the
Appellant's contention is that the enactment enables Kotoye
to take the beneficial rights of Saraki for his (Kotoye's) benefit without having to pay a kobo for the
bonanza."
Although this argument seems to find favour with some of my brethren, I
must, with profound respect, disagree. I think there should be no room for
sentiments in a matter concerning interpretation of statute. What the court
should be concerned With is the meaning and intention
of the legislation to be gathered from the plain and unambiguous expression
used therein rather than from any notions which may be entertained as to what is
just or expedient. As Sir Foster Sutton, F.C.A. put
it in Ahmed v kassim (1958) SCNLR
28; (1958) NSCC 11, 12.
It seems to me beyond argument that the
words: 'nor shall any such order be made, at any time after the expiration of
one month from the publication of the result of the election of the member of
the House of Assembly to which the petition relates, are clear and unequivocal,
capable of only one meaning, that held by the learned trial Judge. In other
words, they mean what they say, that no order shall be made after the
stipulated period.
The underlying principle is that the meaning and intention of legislation
must be collected from the plain and unambiguous expressions used therein
rather than from any notions which may be entertained as to what is just
or expedient.
That the legislative authority
intended the result stated seems perfectly clear if regard be had to the fact
that regulation 142(2) of the above-mentioned regulations expressly applies the
Supreme Court (Election Petitions) Rules of Court, 1951, rule 4(1) of which
requires an intending petitioner to apply by motion ex pane for an order
as to the amount of security to be given by him, before he presents his
election petition, and to avoid any delay in the hearing of the motion sub-rule
(2) of the same rule provides that any such application shall, 'in respect of
the right to priority of hearing by the Court, enjoy (save as prescribed in
section 234 of the Customs Ordinance) precedence over all other proceedings,
whether civil or criminal, and whether part heard or not."
And in OsoAya
& anor. v. Emmanuel Daniel Henshaw & Anor. (1972)1 A11NLR C 25, at 30, Lewis J.S.C.
delivering the judgment of this court stated:
Moreover when there is statutory provision
it should, as we have often said, be given its ordinary natural grammatical
meaning and here we do not see on that basis any justification for importing
into the words contained in Order 56, rule 16 any limiting words that the Judge
on appeal may only exercise his discretion with the fj
consent of the parties. Where there is specific statutory provision it is
certainly not the duty of any court to try to avoid its consequences and
interpret it in such a manner as to fit it into English practice if it is in
fact differently and clearly expressed, as to our mind Order 56, rule 16 is.
As argued by Chief Ajayi, learned leading counsel for the defendant, and
rightly in my respectful view, section II only takes away a remedy but does not
destroy the right. And this is not unusual legislation for that matter.
Statutes of Limitations are examples of such legislations. Another example is
the Solicitors Act. Construing Section 26 of the Act (6 & 7 Vict. c.73) Lord Romilly, M.R. in In re Jones 9 LR Eq. 63 67 said:
It is to be observed that the clause of
the statue, being a penal p enactment, must be construed strictly. It does not
apply to conveyancing, or to common law business. The
question is, whether the want of the certificate puts an end to the debt, or
only takes away the remedy. The distinction between destroying a debt and
taking away a remedy is a familiar one, as in the case of the Statute of
Limitations, where there is no means of recovering a debt after six years, and
yet the debt is not extinguished. I am of opinion that in this case the debt is
still subsisting, although the solicitor can take no steps to enforce its
payment.
In Re jones, the
client had taken out an order for taxation of his solicitor's bill of costs,
with the usual submission to pay what should be found due, and the Taxing
Master had disallowed certain items for business done while the solicitor's
certificate had not been renewed, it was held that the solicitor was entitled
to be allowed the item in question since it was the client that took out the
order for taxation and not the solicitor and as the debt for costs in respect
of business done while uncertificated, was not
extinguished, but only the solicitor's remedy, Lord Romilly
cited with approval the dicta of Willes, J. in Fullalore v. Parker 31LJ
(C.P. 239, 240 thus:
If the attorney is really uncertificated he is not entitled to recover any costs; nor
is the Plaintiff entitled to cover such costs from the Defendant, except in
this case only - if the Plaintiff has made advances to the attorney, he cannot
recover them back upon a condictio indebiti, as for money paid under a mistake; the
attorney though uncertificated, is entitled to retain
the money so advanced, and the Plaintiff would have a right to recover this
amount from the Defendant.
and Byles,
J.:
The objection has not been removed that
part of this money may have been paid by the Plaintiff to his attorney, in
which case it cannot be recovered back, and the Plaintiff would be entitled to
have it repaid by the Defendant.
Lord Romilly concluded at page 68 thus:
I am of opinion that the debt was still
due, and that the Act does not take away the right of the solicitor either to
set off the debt, or to apply to its discharge money which was already in his
hands, and the result is, that the bill must go back to the Taxing Master, with
a direction that he is to tax the items which he disallowed by reason of the
solicitor not being certificated.
In my respectful view, therefore, section II of the Banks and other
Financial Institutions Decree is in the same category of such legislations
where a person's right is not extinguished but only his remedy. Thus, in the
case of a trust in respect of shares in a Bank, while a beneficiary's rights
are preserved, his remedy of access to the court is taken away by the section.
From the nature of trusts as discussed above coupled with the exclusion clause
in section II, if interpreted as dictated by rules of construction the
conclusion is inescapable that the section covers the kind of plaintiff's
claims (1) - (4) in the consolidated suits.
It must always be borne in mind that the rule of construction is that
words, phrases and sentences are to be construed in their ordinary and natural
meaning. The duty of the court is to expound the law as it stands, and to
"leave the remedy (if one be resolved upon)" to others - per Lord
Birkenhead L.C. in Sutlers v. Briggs (1922)
1 AC 1,8. Where the language is plain and admits of but one meaning, the task
of interpretation can hardly be said to arise. "The desirability or the
undesirability of one conclusion as compared with another cannot furnish a
guide in reaching a decision" - per Lord Morris of Borth-y-Crest
in Shop and Store Developments Ltd. v. I.R.C.
(1967) 1 AC 472,493. It was held in Cartledge v. E. Jophing & Sons Ltd. (1963) AC 758, and I agree with
it, that where, by the use of clear and unequivocal language capable of only
one meaning, anything is enacted by the legislature, it must be enforced
however, harsh or absurd or contrary to common sense the result may be.
Example of literal construction are given in Maxwell
on Interpretation of Statutes 12th edition at page 29 et seq. At page 29
the following passage appears:
It
was repeatedly decided at law that the statutes of limitation which enacted
that actions should not be brought after the lapse of certain periods of time
from the accrual of the cause of action barred actions brought after the time
so limited, even though the cause of action was not discovered, nor was
practicably discover able, by the injured party at the date of accrual, and
even though it was fraudulently concealed by the wrongdoer until the expiry of
the statutory period. The hardship of such decisions was obvious, but the
language was susceptible of no other interpretation.
There are limitations on the competence
of a Judge to modify the language of an Act in order to bring it into
accordance with his own views as to what is right or reasonable. The
maxim is: Bonijudicis est dicere, non jus dare. As
Willes J. put it in Abel v. Lee (1871) LR 6 CP 365, 371:
No doubt the general rule is that the
language of an Act of Parliament is to be read according to its ordinary
grammatical construction, unless so reading it would entail some absurdity,
repugnancy, or injustice. One recognises that rule
where the repugnance
arises between the words of the section to be construed and those of some other
section in the same Act or in some other Act which is in pari
materia with it. But I utterly repudiate the
notion that it is competent to a Judge to modify the language of an Act of
Parliament in order to bring it in accordance with his views as to what is
right or reasonable. No such duty is imposed upon him.
In Young & Co. v. Mayor,
etc. of
"The last point argued for the
plaintiffs was, that as the contract has been performed and the defendants have
the benefit of the plaintiffs' work, labour and
materials, the defendants are, at all events, liable to pay for these at a fair
price.
In support of this contention, cases were
cited to show that corporations are liable at common law, quasi ex contractu, to pay for work ordered by their agents and
done under their authority.
The cases on this subject are very
numerous and conflicting, and they require review and authoritative exposition
by a Court of Appeal. But in my opinion, the question thus raised does not
require decision in the present case. We have here to construe and apply an Act
of Parliament. The Act draws a line between contracts for more than 501., and contracts for 501, and under; contracts for not
more than 501, need not be sealed and can be enforced whether Executed or not,
and without reference to the question whether they could be enforced at common
law by reason of their trivial nature. But contracts for more than 501, are
positively required to be under seal, and in a case like that before us, if we
were to hold the defendants liable to pay for what has been done under the
contract, we should in effect be repealing the Act of Parliament and depriving
the ratepayers of that protection which Parliament intended to secure for them.
Frendv. Bennett is an authority in support of
this A view,
and was in my opinion rightly decided. The additional works there in question
had been executed, and there was the common count for work and labour and materials, as well as a special count on the
alleged contract, but the defendant was held not liable either at law or in
equity.
It may be said that this is a hard and
narrow view of the law: but my answer is that parliament has thought it
expedient to require this view to be taken, and it is not for this or any other
Court to decline to give effect to a clearly expressed statute, because it may
lead to apparent hardship.
And in Coxhead v. Mullis (1878)
3 CPD 439, the defendant, during his infancy,
promised to marry the plaintiff, and after coming of age, recognised without expressly repeating the promise, and
eventually broke it. The infants Relief
Act, 1874 section 2 came up for consideration. The section read:
"no action
shall be brought whereby to charge any person upon ........... any ratification made after full age of any promise or
contract made during infancy ........................."
It was held that the section applied to promise of marriage and the
plaintiff was non suited. On appeal, the order of non
suit was upheld. Lord Coleridge, C.J. observed at
pages 441-443:
"It is admitted in this case that, if
the Act does not apply, there is abundant evidence to fix the defendant,
supposing he had been sued under the old law; therefore the question simply
arises upon the recent statute. Now, the Act consists of two sections only. The
1st enacts that 'all contracts, whether by specialty or by simple contract,
henceforth entered into by infants for the re-payment of money lent or to be
lent, or for goods supplied or to be supplied (other than contracts for
necessaries), and all accounts stated with infants, shall be absolutely void.
Then the 2nd section enacts that 'no action shall be brought whereby to charge
any person upon any p promise made after full age to pay any debt contracted
during infancy, or upon any ratification made after full age of any promise or
contract made during infancy, whether there shall or shall not be any new
consideration for such promise or ratification after full age. The question is
whether that does or does not apply to a case of breach of promise of marriage.
The words of the 2nd section, I think, are quite sufficient to include such a
promise. The argument was, that, as regards to 1st section, it is entirely
confined to contracts entered into for the re-payment of money and goods
supplied or to be supplied; and that the first part of the 2nd section confines
itself entirely to promises made after full age to pay a debt contracted during
infancy; and it is suggested that we ought to read the second part of the 2nd
section as if it ran thus: 'or upon any ratification made after full age of any
promise or contract made during infancy.
I believe this is the first time this section has had to be
considered with reference to this matte. I should have gladly deferred to any
judicial authority which could have been presented as throwing light upon the
subject; but, in the absence of such authority, the tendency of my own mind,
right or wrong, always is, to suppose that parliament meant what parliament has
clearly said, and not to limit plain words in an Act of Parliament by
considerations of policy, if it be policy, as to which minds may differ, and as
to which
decisions may vary. We may thus make that which is plain and simple enactment,
-1 will not say inoperative, but - doubtful or obscure, if considerations are
to be introduced into the construction of it, when it is entirely uncertain
whether they were present to the minds of the legislature when the enactment
was made. Looking at this section, I find the words change their form, and I
cannot accede to the argument of the plaintiff's counsel, without putting a
word into the statute, viz, 'such', which parliament
has deliberately left out, and which I am not to assume that parliament has
carelessly left out, meaning that the Judge should supply it. .Therefore, upon
the best consideration I can give to the matter, I think this Act of Parliament
does apply to breaches of promise of marriage. It certainly is a matter which
in my judgment comes within the fair contemplation of the law with regard to
infants. I see nothing to limit the words of the Act, and I hold, therefore,
that the defendant is entitled to succeed."
I agree entirely with the views expressed by these eminent Judges on the
duty of a Judge and the limits placed on him in the exercise of his
interpretative jurisdiction
of a legislation where the words of the statute are clear and
free from ambiguity as in the case with section 11 of the Decree under
consideration in this appeal.
It is suggested that a statute is not to be interpreted in a way that
will enable it to be used as an instrument of fraud. It is my view that this
canon of construction does not apply here where there is no ambiguity in
section 11 - and this is generally accepted by both parties.
The conclusion I reach is that section 11 applies to bar plaintiffs from
maintaining claims (1) - (4) in each of their suits. I need point out also that
the same conclusion is reached in respect of similar claims in the defendant's
counterclaims.
If there are any lingering doubts as to the extent of the extension
clause in Section 11, such doubts, in my view, are cleared by the proviso which
exempts p from the prohibition or restriction in the main enactment, trusts
where a minor or a person suffering from any mental illness is a beneficiary.
That the proviso can be resorted to in aid of interpretation of the main
enactment is supported by authorities. In Nabhan
v. Nabhan (1967) All NLR
51, 59 (reprint), Brett J.S.C. delivering the judgment of this Court had this
to say:
In deciding this question the cardinal
rule is to look first at the wording of the statute which is being construed,
and if that is found to be unambiguous it is neither necessary nor permissible
to look further. If section 117(2) (a) of the Constitution stood alone the
court would have to construe the words 'final decisions' simply by ascertaining
the meaning commonly given to those words in relation to appeals. But the
subsection must be read as a whole, and paragraph (iv)
of the proviso must be considered –
'Provided that nothing in paragraph (a) of
this sub-section shall confer any right of appeal –
(iv) in the case of a party to proceedings for
dissolution or nullity, of marriage who, having had time and opportunity to
appeal from any decree nisi in such proceedings, has not so appealed,
from any decree absolute founded on such decree nisi.
A proviso admittedly cannot alter the
plain meaning of the substantive enactment; Anya and Others v. The State
(1965) NMLR 62; but where words are reasonably
susceptible of more than one meaning a Proviso may show which meaning they were
intended to bear" (Italics mine)
I need also refer to the speech of Lord Herschell
in Western Derby
(1897) A.C. 647, 655-656 - a case cited by
Chief Williams in his Brief were the learned and noble
Lord said, inter alia:
I decline to read into any enactment words
which are not to be found there, and which would alter its operative effect
because of provisions to be found in any proviso. Of course a proviso may be
used to guide you in the selection of one or other of two possible
constructions of the words to be found in the enactment, and show when there is
doubt about its scope, when it may reasonably admit of doubt as to its having
this scope or that, which is the proper view to take of it; but to find it
an enacting provision which enables something to be done which is not to be
found in the enactment itself on any reasonable construction of it, simply
because otherwise the proviso would be meaningless and senseless, would, as I
have said, be in the highest degree dangerous.
In
In coming to his conclusion, Andrews L.C.J., was influenced by his view
that the first part of the section was the operative portion of it, and that
the proviso could not properly be used to explain the words as to increase of population in the operative
part. He therefore relied on the
principle of construction to be found in Western Derby
"........ I am perfectly clear that
if the language of the enacting part of the statute does not contain the
provisions which are said to occur in it, you cannot derive these provisions by
implication from a proviso."
I am sure that none of your Lordships
would desire to depart from this principle where it is applicable - namely,
where the enacting part of the section is unambiguous and complete and is
followed by a true proviso (that is, a qualification or an exception out of
it). In my view, that is not the case here, and, as Lord Herschell
pointed out in the Western Derby Union case, at p.655: Of course a
proviso may be used to guide you in the selection of one or other of two
possible constructions of the words to be found in the enactment, and show when
there is doubt about its scope, when it may reasonably admit of doubt as to its
having this scope or that, which is the proper view to take of
it...............' My Lords, that is precisely the method of construction which, in my view, is
applicable in the present case. I will add that the words beginning
"Provided that" are, in my opinion, additional and explanatory words,
necessary for the purpose of giving a more definite meaning to the preceding
words - namely, for the purpose of removing doubt as to its scope - and they might easily have been
incorporated in the earlier part of the section, at the risk of making it
rather more cumbrous than it is, We are not dealing here with a true
proviso, or, at any rate, not with such a proviso as this House was considering
in the West Derby Union case. It cannot, I think, be disputed that, in
construing a section of an Act of Parliament, it is constantly necessary to
explain the meaning of the words by an examination of the purport and effect of
other sections in the same Act. A number of striking examples will be found in
MAXWELL ON THE
INTERPRETATION OF STATUTES, 8th Edn.,
pp. 27, 28. This principle is equally applicable
in the case of different parts of a single section, and none the less so
because the latter part is introduced by the words "provided that," or
like words. There can, I think, be no doubt that the view expressed in
KENT'S COMMENTARIES ON AMERICAN LAW,
12th Edn., Vol. 1, p. 463, (cited with approval in MAXWELL
ON THE INTERPRETATION OF STATUTES, 8th Edn., p.140 is correct:
The true principle undoubtedly is,
that the sound interpretation and meaning of the statute, on a view of the
enacting clause, saving clause, and proviso, taken and construed together, is
to prevail.
Lord Wright at page 477 of
the Report too, observed:
"It is said
that, where there is a proviso, the former part, which is described as the
enacting part, must be construed without reference to the proviso. No doubt
there may be cases in which the first part is so clear and unambiguous as not
to admit in regard to the matters which are there clear any reference to any
other part of the section.The proviso may simply be
an exception out of what is clearly defined in the first part, or it may be
some qualification not inconsistent with what is expressed in the first part.
In the present case, however, not only is the first part of the section
deficient in express definition, but also the second part is complementary and
necessary in order to ascertain the full intention of the legislature.
The proper course is to apply the broad
general rule of construction, which is that a section or enactment must be
construed as a whole, each portion throwing light, if need be, on the rest. I do not think that
there is any other rule, even in the case of a proviso in the strictest or
narrowest sense, and still less where, as here, the introduction of the second
part by the word 'provided' is, in a strict sense, inapt." (Italics mine)
Clearly Section II in my view is expressed in clear and unambiguous
language and wide enough to cover the case being put forward by the Plaintiffs.
The italized portions of the above passages form the
speeches of Viscount Maugham and Lord Wright accord with the decision in Irving
v. National Provincial Bank Ltd. ( 1 962) 2 Q.B. 73 at pp. 81, 82 per Wilmer LJ that the main part of a section must not be construed in
such a way as to render a proviso to the section redundant. Reading Section II
as a whole I have no doubt that it covers the claims of the plaintiffs in the
suit No. LD/845/87. While I
do not say that the section takes away the rights of beneficiaries under a
trust relating to shares in a bank, it certainly bars their right of access to
the courts to enforce the type of reliefs being
claimed by the Plaintiffs in these proceedings.
I turn to the 2nd suit, that is LD/938/87. The
plaintiff in that case pleaded, inter alia, as follows:
"4. The plaintiff came to know the defendant
following his release from detention after military coup of 1966. The defendant
was jobless and his legal practice was not yielding sufficient income for his
needs and the plaintiff gave him financial and other assistance from time to
time up to and including the period when the Bank was established to do banking
business in
5. At all times material to the investment
of funds in the Bank, the Defendant had no surplus earnings or loan facilities
to enable him make any investment and understanding between the parties was
that the plaintiff alone would fund the investment. It was in the contemplation
of both parties that the investment would assist the plaintiff in his efforts
to continue giving financial assistance to the defendant. The plaintiff also
intended that, depending on the level of dividend would donate a reasonable
percentage of the shares to his other friends including the defendant and sell
the remainder to other Nigerians.
6(1) The defendant who
is a lawyer and a former politician in the West advised the plaintiff to go to
one of the existing banks to borrow money to Pay for 60% shares so that it
would be easy to prove to the authorities in future that he is not being used
as a front.
7. All moneys paid into the aforesaid
Joint Account in the United bank for Africa Limited as well as other payments
made into Societe Generale
Bank (Nigeria) Limited share capital account Number 01308986 at Standard Bank
of Nigeria Limited (now First bank of Nigeria Limited ) Marina Branch were paid
in from moneys which belong exclusively and beneficially to the plaintiff. The
plaintiff will rely on all documents relating to the said payments.
8. It was from the said Joint Account and
from additional cash made available by the Plaintiff that payment were made tbrthe(N270.000) shares issued by the Bank in the
name of the defendant and the (630,000) shares issued in the defendant's name.
8A In consequence of the facts pleaded in paragraph 8 hereof the Plaintiff has to
the knowledge and with the acquiesence of the
defendant exercised rights of ownership in and over the said shares. Plaintiff
borrowed a large sum of money for his political party (the defunct National
Party of Nigeria) around mid 1979 he called for and obtained from the defendant
the Share Certificates relating to 270,000 shares and the 630,000 shares in the
defendant's name to secure the loan with the lenders.
8B. The plaintiff was
originally the only Nigerian shareholder. On the 8th of March, 1977 the
plaintiff nominated the defendant as a director and upon the understanding that
the defendant will hold shares in trust for him, he directed that 18% of
his 60% shares be issued in the name of the defendant as a trustee. This
understanding is that the 18% shares were meant for distribution by the
plaintiff at the appropriate time among his close friends including the
defendant who has assisted him one way or another in the formation of the Bank,
10 The defendant quickly advised the plaintiff (who was then in detention) about
the danger facing the Bank and stated that in order to meet the situation he
had decided to sell off some of the shares of the plaintiff as well as the
shares of the plaintiff held in the name of the defendant and which he well
knew were held by him in trust for the plaintiff. The defendant had in fact agreed
with intending purchasers to sell the said shares and had (according to him) p
collected N3.1 million from such purchasers
12 As a result of the use of the money made
available to the defendant by the plaintiff through the business agents of Mr.
Klaus Seemuth the defendant was able to pay for (a)
the 499,200 shares covered by Certificate No. 000024 in the defendant's name
(b) the 460,800 shares covered by Certificate No. 000026 in the defendant's
name (c) 1,164,800 shares covered by Certificate No. 000025 in the name of the
plaintiff's wife Mrs. P.M. Saraki and (d) 1,075,200
shares covered by Certificate No. 000027 in the name of the plaintiff's wife.
The balance of N800,000.00 out of the said sum
of Four Million Naira (N4m) was disbursed by
the defendant according to the orders of the plaintiff leaving a sum of N70,000.00
still with the defendant and the plaintiff hereby claims the said sum of N70,000.00.
14. At all times material to this action the
defendant was fully aware that the plaintiff was the beneficial owner of the
shares standing in his (defendant's) name and that he was obliged to deal with
the shares for the benefit and in accordance with the direction of the
plaintiff. It was only recently when (for reasons best known to him) the
defendant has turned round to deny the trust.
15. By reason of the matters hereinbefore
pleaded, the defendant is accountable to the plaintiff as a trustee of all the
shares standing in his name in the Bank particulars of which are as follows:-
No.
of Shares Share
Certificate
i 270,000 000003
ii 630,000 000006
iii 85,800 000011
iv 418,000 000018
v 330,000 000022
vi 499,200 000024
vii 460,000 000026
viii Unknown Unknown
ix Unknown Unknown
(Italics
mine)
The sum total of the case being made out by the plaintiff in this suit
is that the defendant a registered holder of the shares in dispute in that suit
holds those shares as front for him (the plaintiff) and that he the plaintiff,
is in truth and in fact the -owner of the shares in dispute and not the
defendant. I cannot imagine a stronger case that falls squarely within the
provisions of Section 11 than this. The 1st four reliefs
sought in this case are identical with those in the 1st Suit LD/845/87 and in
my humble view, in so far as those four reliefs are
concerned, they are covered by Section 11. Relief 5 however, does not come
within the purview of Section 11 and there can be no bar therefore, to the
plaintiff pursuing that claim.
In the course of the hearing of this appeal, a member of this Court
asked counsel for the parties whether Section 11 applied to bar cases pending
at the time the Decree came into force. Chief Ajayi for the defendant submitted
that it did and relied on the meaning of the word "maintain" used in
the Statute. Chief Williams for the plaintiffs was silent on the issue. In view
of the fact that this point has been raised, I consider it necessary to say a
few words on it. The general rule relating to whether a Statute is to be
treated as being prospective or retrospective is well stated in paragraph 922
of Halsbury's Laws of England 4th Edition
Vol. 44 where the learned author states:
"922. PRESUMPTION AGAINST RETROSPECTION.
The general rule is that all statutes,
other than those which are merely declaratory, or which relate only to matters
of procedure or of evidence, are prima facie prospective, and
retrospective effect is not to be given to them unless, by express words or
necessary implication, it appears that this was the intention of the
legislature. Similarly, the courts will construe a provision as conferring
power to act retrospectively only when clear words are used.
By virtue of the presumption, transactions
have been held to be neither invalidated by reason of their failure to comply
with formal requirements subsequently imposed, nor open to attack under powers
of avoidance subsequently conferred. On the other hand, they have not been
rendered valid by subsequent relaxations of the law, whether relating to form
or to substance. Similarly, provisions
in which a contrary intention does not appear have been held neither
to impose flew liabilities in respect of events taking place before their
commencement, nor to relieve persons from liabilities then existing, and
the view that existing obligations were not intended to be affected has been
taken in varying degrees even of provisions expressly prohibiting proceedings.
It is also in reliance on the presumption
that the courts have frequently held pending proceedings to be unaffected by
changes in the law so far as they relate to the
determination of substantive rights. In the absence of a clear indication of a
contrary intention amending enactment, the substantive rights of the parties to
an action fall to be determined by the law as it existed when the action was
commenced; and this is so whether the law is changed before the hearing of the
case at first instance or while an appeal is pending."
See also Afolabi & Ors. v.
Governor of
section. It reads –
".......
..no suit or other proceedings shall be maintained against
any person ......... " (Italics mine)
The question that arises is: what is the meaning of the word
"maintained"? Does it render the section retrospective? The cardinal
rule of construction is that words and sentences are to be constructed in their
true and natural meaning anywhere the p words are clear and unambiguous effect
ought to be given to them. Words are
primarily to be construed
in their ordinary meaning of common and popular sense.
The word "maintain" is defined in Black's Law Dictionary 5th
Edition as follows:
"MAINTAIN.
The term is variously defined as acts of repairs and other acts to prevent a
decline, lapse or cessation from existing state or condition, bear the expense
of; carry on; commence; continue; furnish means for subsistence or existence
of; hold; or keep in an existing stage or condition; hold or preserve in any
particular state or condition; keep from change; keep from falling, declining,
or ceasing; keep in existence or continuance; keep in force, keep in good
order; keep in proper condition, keep in repair;' keep up; preserve, preserve
from lapse,ecline, failure or cessation, provide for;
rebuild; repair, replace; supply with means of support; supply with what is
needed; support, sustain, uphold. Negatively stated, it is defined as not to
lose or surrender; not to suffer or fail or decline
To 'maintain' an action is to uphold,
continue on foot, and keep from collapse a suit already begun, or to prosecute
a suit with effect. George Moore Ice Cream Co. v. Co.
And in the Shorter Oxford English Dictionary "maintain" is
defined as meaning "to continue, perservering,
to carry on, keep up; to have ground to sustain an action; to continue in,
preserve, retain (a condition, position attitude etc.) to keep in being; to
preserve unimpaired, a course right, state of things etc.
The verb "to maintain" in pleading has a distinct technical signfication. It signifies to support what has already been
brought into existence. In my view the word "maintained" when used
with reference to actions, means "continued" after they have been
brought. If it is to be prospective only, the word "brought" would
have been used.
In Smallwood & Anor. v. Gallardo; Ordinez & Ors. V. Gallardo 275 U.S. 56; an
Act of March 4,1927 amending a previous Act of March 2,1917 provided in section
48 thereof that no suit for the purpose of restraining the assessment or
collection of any tax imposed by the laws of Porto Rico "shall be
maintained" in the District Court of United States for Porto Rico. The
U.S. Supreme Court held that the provision applied to previously instituted
suits pending before it. Mr. Justice Holmes, delivering the opinion of the
Court observed at pages 60-62; 23-24 of the respective Reports thus:
These are suits brought in the District
Court of the United States of Port Rico to restrain the collection of taxes
imposed by the laws of Porto Rico. On January 7, 1927, the Circuit Court of
Appeals affirmed decrees of the District Court dismissing the bills. On March
4,1927, by chapter 503,7 of the Act of that year, Congress p provided that
section 48 of the act to provide a civil government for Port Rico should be
amended to read as follows:
'Sec. 48. That the Supreme
and District Courts of Porto Rico and the respective Judges thereof may grunt
writs of habeas corpus in all cases in which the same are grantable by the
Judges of the District Courts of the United States, and the District Courts may
grant writs of mandamus in all proper cases.
That no suit for the purpose of
restraining the assessment or collection of any tax imposed by the laws of
Porto Rico shall be maintained in the District Court of the United States for
Porto Rico.
( 44 Starts. 1418,
1421 (48 USCA 872)
Writs of
certiorari were granted by this court on May 16, 1927, but argument was ordered
on the question whether the cases had not become moot by virtue of that act.
Apart from a natural inclination to read
them more narrowly there would seem to be no doubt that the words of the
statute covered these cases. To maintain a suit is to uphold, continue on
foot and keep from collapse a suit already begun. And although the Circuit
Court of Appeals in Gallardo v. Porto Rico Ry
Light & Power Co., 18 . (2d) 918,923, with
some colour of authority has B held that the act does
not apply, we cannot accept that view. To apply the statute to present suits is
not to give it retrospective effect but to take it literally and to carry out
the policy that it embodies of preventing the Island from having its revenues
held up by injunction; a policy no less applicable to these suits than to those
begun at a later day, and a general policy of our law. Rev.
Stat 3224 C (26 USCA 154) [
The sequence of
the clause in the amendment after others giving authority to grant writs of
habeas corpus and mandamus shows that it puts a limit to the power of the
court. See Dodge v. Osborn, 240
Of course it does not matter that these
cases had gone to a higher court. When the root is cut the branches fall. McNulty
v. G Batty, 10 How 72,13 L.Ed. 333."
In the course of our research my attention
was drawn to an English case -Moon v. Durden 1 Ex.22; 154 E.R. 389. In that case, Section 18 of Gaming Act 1845 (8 & 9 Vict. C. 109) which provided that "all
contracts and agreements by way of gaming or wagering shall be null and void;
and that no suit shall be. brought or maintained in any court of law or
equity for recovering any sum of money or JJ valuable
thing alleged to be won upon any wager, or which shall have been deposited in
the hands of any person to abide the event which any wager shall have been
made" was held, per Parke, B, Alderson, B. and Rolfe, B, (Plait, B dissentiente) that the statute had not a retrospective
operation, so as to defeat an action for wager, commenced before the statute
passed. In his judgment Rolfe, B. observed at page 33 of the Report:
This was an action on a wager. It was
commenced on the 12th of June, 1845; and the main question in the case is,
whether the effect of the stat. 8 & Vict. c. 109
s. 18, is to disable the plaintiff from maintaining
the action. That statute did not receive the royal assent until August, 1845,
after this action had been commenced.
After quoting section 18, the
learned Baron continued-
"The effect of this clause is to make
void all wagers, and to prevent the bringing or maintaining any action for the
recovery of money won on any wager; and the only question is, whether its
operation is retrospective, so as to affect past transactions and existing
suits.
The general rule on this subject is stated
by Lord Coke, in the second Institute, 292, in his Commentary on the Statute of
Gloucester, Nava constitutio futuris
formam imponere debet non prqeteritis;" and
the principle is one of such obvious convenience and justice, that it must
always be adhered to in the construction of statutes, unless in cases where
there is something on the face of the enactment putting it beyond doubt that
the legislature meant it to operate retrospectively.
On the part of the defendant it was
argued, that in this statute the clause must have been intended to affect past
transactions; because it not only enacts that wagers shall be null and void,
but further, that no suit shall be brought or maintained for the recovery of
money won on a wager. The latter branch of the clause, it was contended would
have no operation if the enactment were restricted to future wagers; for it
would be useless to enact that no action should be brought, and still more so
that no action should be maintained, in respect of a contract already declared
to be null and void; and particularly the enactment, that no action should be
maintained, must, it was said, apply not only to wagers already won, but even
to suits already pending for their recovery.
It must be observed that this latter part
of the enactment - that, I mean which prohibits the bringing or maintaining of
actions - is in no respect inconsistent with the construction which gives to
the enactment an operation merely prospective. The most that can be contended
is, that the words in question are unnecessary; and therefore, independent of
authority, if the argument rested here, what we should have to decide would be,
whether the improbability that the legislature should unnecessarily prohibit
the bringing or maintaining an action on a contract already made void in a
prior part of the same clause, is so great as to warrant us in saying that it
must have been intended retrospectively to affect rights already vested. I
think this would be a very unreasonable and strained inference, and which,
considering the ordinary frame and language of acts of Parliament, would be by
no means fairly deducible from the clause in question."
The learned Baron went on to consider cases cited by the defendant in
favour of the section being retrospective and concluded that he did not think
those cases were rightly decided. The main plank on which he rested his
decision seems to be this that the
section of the law declaring gaming or wagering contracts null and void could
only be in respect of future contracts and, therefore, the section barring
actions on such contracts could only be prospective as well. Alderson, B. In his own judgment observed at page 40:
Here, no doubt, the legislature were
desirous of putting an end to gaming and wagers; but, unless the words
imperatively require it, we ought not to make their prohibition retrospective;
for it is contrary to the first principles of justice to punish those who have
offended against no law, and surely to take away existing rights without
compensation is in the nature of punishment The words of the statute do not, as
it seems to me require this construction. The first clause of the section is
probably prospective. All contracts by way of gaming or wagering are made void.
It seems to me, at present, that this applies to the future; and indeed it was,
as I understood, so admitted by Mr. Lush in his argument. But it was said that
the next clause was not so; for that it not merely prohibited the future
bringing of suits to enforce wagers, but also the future maintenance of such
suits when previously brought. But I cannot give such a construction to what
appear to me only redundant words in this section. If it had been stated 'that
no action shall be brought' or only' that no action shall be maintained, it
seems to me clear that we should have considered the words 'brought' and
'maintained' as synonymous and as prohibiting the success of future suits
alone. And although the use of both in one sentence makes this less obvious, yet, when we consider that to give
the more strict interpretation to the word 'maintained' will compel us to
suppose, without further evidence, that the legislature contemplated so gross
an act of injustice as, without compensation, to take away an existing right of
action already pending, and that, too, with no provision even for the costs
incurred in the enforcing of what was, before the act a legal right, I am not disposed to put such a
construction on the word, but to treat it, as I think the legislature intended
it, as a redundant expression only. In the 16th section, where they do speak of
existing actions of another sort, they do provide for the staying another sort,
they do provide for the staying them, by application to the Court and on
payment of costs; and I think if they had intended to put an end to pending
actions of this description, they would have shown it by introducing a similar
provision in the 18th section.
Parke, B. observed at page 43:
"The only question in this case is,
whether the act (8 & 9 Vict. c. 109, s. 18)
affects existing suits for the recovery of wagers or not. The
clause in question having been read, it is unnecessary for me to repeat it.
I have felt a good
deal of difficulty in deciding upon the true construction of this clause; but,
after much consideration, I agree in opinion with my Brothers Alderson and
Rolfe, that it applies to future actions only.
The language of the clause, if taken in
its ordinary sense, as A in the first instance we ought to do, applies to all
contracts, both past and future, and to all actions, both present and future,
on any wager, whether past or future. But it is, as Lord Coke says, 'a rule and
law of Parliament that regularly, nova constitutiofuturisforman
imponere debet, non praeteritis' (2 Inst. 292). This rule, which is in
effect, that enactments in a statute are generally to be construed B to be
prospective, and intended to "regulate the future conduct of persons, is
deeply founded in good sense and strict justice, and has been acted upon in
many cases. For instance, in the construction of the Statute of Frauds, which
was held not to apply to promises made before the 24th of June, 1677; Gilmore
v. Shuter (T. Jones, 108; 2 show, 16; and also of
the stat. 2 & 3 Vict. c. 29 which, it has been decided is not to be construed to defeat
a right by relation already vested in an assignee of a bankrupt: Edmonds v. Lawley (6 M. & W. 285); Moore v. Phillips (1 M.
& W. 536).
But this rule, which is one of
construction only, will certainly yeild to the
intention of the legislature; and the question in this and in every other
similar case is, whether that intention has been sufficiently expressed. Upon that question it is that I have felt
considerable doubt.
It seems a strong thing to hold, that the
legislature could have meant that a party, who, under a contract made prior to
the act, had as perfect a title to recover a sum of money, as he had to any of
his personal property, should be totally deprived of it without compensation.
It is a still stronger thing to hold, that if he has already commenced an
action with an undoubted right to recover his debt and costs, he should not
only forfeit both, but also be liable, as he would in the ordinary course of a
suit, to pay the costs of his adversary, by being obliged to discontinue, or be
nonprossed, or have his judgment arrested. These
considerations afford a strong reason
for limiting the operation of the words of this section, and holding that they
apply to future contracts, had actions on such future contracts only - at all
events, to future actions only, if any distinction can be made in the degrees of
apparent injustice. But, on the other hand, it is to be recollected that the
toleration of actions for wagers, on subject in which the parties have no real
interest has often been made a subject of reproach to the law of England; and
it is not a matter of surprise, that the legislature took an early opportunity
of putting a stop to them; and also it is to be borne in mind, that the parties
who would suffer by a strict construction of the clause, are often successful
gamesters or speculators, not much the objects of favour with the legislature;
and one considers the clause, therefore, not quite in the same spirit, as if
the enactment related to ordinary contracts.
The enactment, 'that all contracts or
agreements, by way of gaming or wagering, shall be null and void,' if it stood
by itself, ought most clearly to be construed as applicable to future contracts
and agreements only, by virtue of the rule of construction to which I have
adverted, and the apparent injustice of putting an end to a vested right. So, if the next part stood alone, it would, I
think, though not so clearly, be construed, for the same reason, to apply to
future actions only; and the clause, to avoid the injustice which would
otherwise be inflicted on a plaintiff, should be construed to " mean, not that an action already brought
should not be maintained, But that no action should afterwards be brought, or,
if brought, maintained; and the absence of any provision that the costs of an
existing action should be paid by a defendant, in my mind, strongly favours that construction. The union of the two clauses
together does not appear to me to make any difference. The latter clause is surplusage, so far as it relates to bringing actions,
whether we construe the former to apply to future or existing contracts; and
the only observation that can be made is, that in one mode of construing the
enactment the word 'maintained' is inoperative, in the other it is not. It is redundant, unless it applies to'the maintenance of an existing action; but this
circumstance of mere redundancy does not appear to me to be sufficient to show,
that the legislature meant to do so unjust a thing as to prevent the
maintenance of an existing well-founded action. 1 think it best to abide by the
sound rule of construction above referred to, notwithstanding the conjuctures as to the real intention of the legislature,
which the nature of the subject occasions." (Italics mine)
In his dissenting judgment Platt, B. reasoned at pages 26-30 thus:
"The general rule, governing the
construction of statutes, is correctly stated in Bac.
Abr. 439, 'Statute,' C. It is there laid down as in
general true, 'that no statute is to have a retrospect beyond the time of its
commencement; for the rule and law of Parliament is, that nova constitutio
futuris formam debet imponere, non praeteritis; and Gillmore
v. The Executors of Shooter (2 Mod. 310) is quoted as an example. In that case, a treaty of marriage being on
foot between the plaintiff and a person whom he afterwards married and had
£2000 with as a portion, Shooter, who was
of kin to the plaintiff, promised to give him as much, or to leave him
as much by is will. This promise was made before the 24th of June, 1677.
Shooter died in September following, without having paid the money, or made
provision by his will for the payment thereof. An action was brought against
the executors of Shooter, and the question made upon the special verdict was,
whether the promise, not being in writing, was within 29 Car. 2, c. 3, whereby
it is enacted, 'that, from and after the 24th of June, 1677, no action shall be
brought to charge any person upon any agreement made upon consideration of
marriage, unless the agreement upon which such action shall be brought, or some
memorandum or note thereof, shall be in writing, and signed by the party to be
charged' Judgment was given for the plaintiff. And, per Cur., it cannot be
presumed that this act was to have a retrospect, so as to take away a right of
action which the plaintiff was entitled unto before the time of its
commencement. It should, however, be observed, that the form of the condition,
on which the right to bring an action was made to depend, imported that future
agreements alone were required to be written and signed. The words are, 'unless
the agreement shall be in writing, and signed.' But the general rule is not
without exception. A statute may have a retrospect to a time antecedent to that
of its commencement. Thus, a statute which compels a convenantor
to do an act, which before the passing of the statute he had covenanted not to
do, or which forbids his doing an act, which he had before the passing of the
statute covenated to do, repeals the covenant: Brewster
v. Kitchell (1 Salk. 198.) The 9 Geo. 4 c. 14,
S.I, enacts, 'that in actions grounded on any
simple contract, no acknowledgment or promise shall be deemed sufficient
evidence of a new or continuing contract, whereby to take the case out of the
operation of the 21 Jac. 1, c. 16,
unless such acknowledgment or promise shall be made or contained by or in some
writing, to be signed by the party chargeable.' That statute was to take
effect on and after the 1st of January. 1829, and has been construed to render
insufficient all proof, adduced after the 31st of December, 1828, of an
unwritten acknowledgment or promise, although, by such a construction, the
statute is made to operate retrospectively, in avoidance of all acknowledgments
and promises expressed before the 1 st of January, 1829; Towler
v. Chatterton (6 Bing. 258),Ansell v. Ansell (3 C.
& P. 563), Gunner v. Cattle (2 M. & P. 367; 9 Bing. 258). By the 3 & 4 Will. 4, c. 42, s. 31, personal
representatives failing in their suits are subject to costs. This statute has
been held, by the Courts of Queen's Bench and Exchequer, to operate retrospectively,
and to render executors and administrators who had brought their actions before
it passed, liable Freeman v. Moyes (1 Ad. &
Ell. 388), Pickup v. Wharton (2C. & M. 405), Grant v. Kemp (Id. 636). The
former of these two statutes intended to abolish an unsatisfactory means of
proof; and the latter, the anomaly of allowing a plaintiff, because he sued in
a representative character, to escape the just penalty of paying the costs
occasioned by his having brought a desperate and ill-founded action.
The 8 & 9 Vict. c. 109, intended
to prevent for the future her Majesty's courts of justice from being required
to execute the unworthy office of deciding a gambling controversy, or of compelling,
by their process, the payment of a wager.
By adhering to the
express provisions of the 9 Geo. 4, c. 14, s. 1, and the 3 & 4 Will. 4, c.42, s. 31,
the Courts have applied the remedies intended.
By a like course alone will this Court accomplish
the object of the legislature in penning the 18th section of the 8 & 9 Vict. c. 109. In that section the legislature appears to me
to have intended to deal with subsisting as well as with future, contracts by
way of gaming or wagering. After annulling future contracts of that
description, any furtherprovision as to them, or as to
any proceedings upon them, was unnecessary. The enacting part of the section
might have stopped at the end of the declaration that such contracts should be
null and void. The next provision therefore, must be taken to deal with money
or other valuable things alleged to be won upon such wagering contracts as
subsisted on the 8th of August, 1845; and as to them, to incapacitate the
winner from bringing or maintaining in any court of law or equity a suit for
their recovery. The words are, 'and that no suit shall be brought or maintained
in any court of law or equity for recovering any sum of money or valuable thing
alleged to be won upon any wager, or which shall have been deposited in the hands of any
person to abide the event on which any wager shall have been made.' In any way
of reading this part of the section, it is impossible to prevent its operating
to defeat the rights vested in the winners to recover, if they shall have
failed to bring their actions before the 8th of August, 1845. But upon what principle
can it be urged, that one of two persons, each having won a bet on the same day,
and upon the same event, shall be entitled to recover, because he shall have
brought his suit the day next before the act received the royal assent; and the
other, who shall have brought his suit two days later, shall be barred
altogether? It seems to me that the legislature, contemplating the injustice of
allowing such a distinction, has advisedly introduced the words 'or maintained,' in order to
extent equally to both the incapacity to recover. The legislature has used the
word' maintained' alternatively: are we to say it has no distinct meaning?
Dixit: are we to say non voluit? The verb 'to
maintain’ in pleading, has adistinct technical
signification. It signifies to support what has already been brought into
existence. Thus, a defendant, who admits the
right of a plaintiff to bring, or to bring and up to the last pleading
maintain, his action, but relies on matter disabling him from further
proceeding, insists that the plaintiff ought not, by reason of such matter,
further to maintain his action. A plea in bar of the further maintenance of the
action admits the plaintiff to have properly maintained it up to the time of
such plea. In this case, however, the defendant, by his demurrer, objects to
the declaration. He says, 'Your action was brought properly; but you have no
right to maintain it by your declaration, or, in other words, the law has
intervened and deprived you of that right.' The like intervention deprived the
plaintiff in Kirkhaugh v. Herbert, and
the Anonymous case also referred to in 6 Bing. 265, of his right of
action, and in Grant v. Kamp (2 C. & M. 636) and Freeman v. Moyes (1 Ad. & Ell. 338) of his immunity from the
defendant's costs.
In confirmation of the view which I have
taken of the 18th section, it should be observed, that the expressions' shall
have been deposited' and 'shall have been made' appear to have been selected in
contradistinction to the words 'shall be'. If the section was
intended to operate
prospectively only, the words 'shall be' would have been appropriate to its
object; but if retrospectively, the words 'shall have been' would be not only
appropriate, but necessary."
Concluding, he said at page 32:
"Upon the whole, taking into
consideration the general spirit of the act, and the nuisance the legislature
sought, by the 18th section, to abate, I think they intended that, from the 8th
of August, 1845, when the act received
the royal assent, her Majesty's courts of law and equity should not be made
instrumental in enforcing the payment of a wager; that the supposed vested
rights of winners to recover were not contemplated as subjects of legislative
projection, but, on the contrary, were absolutely annulled; that, from and after
the 8th of August, the winners were barred from bringing, or, if they had been brought them, from maintaining, suits
either at law or in equity, to recover the money or valuable thing alleged to
be won; and consequently, that the defendant is entitled to judgment."
I have carefully considered all
the judgments delivered in the case. I found myself unable to agree with the
majority decision that the expression "shall be brought or
maintained" is redundant. This
decision ran foul of the rule that a construction which would leave without
effect any part of the language of a statute will normally be rejected. I am
more impressed with the dissenting judgment of Platt, B. which is in line with
the decision of the Supreme Court of the united State of America in Smallwood
& Anor. v. Gallardo; Ordinez
& Ors. v. Gallardo (supra) with which I am in full agreement. If the
legislature intending section 18 of the Gaming Act 1845 to be prospective only
it would not have enacted in that section E that no action "shall be
brought or maintained." It would have been sufficient to enact that no
action "shall be brought". There were other indicia in the section to
lead to the conclusion that a retrospect was intended. Such expressions as
"shall have been deposited" and "shall have been made"
appearing in the section and the effect of which expressions was never
considered by the majority in Moon v. Durden, would appear to support the dissenting judgment of
Platt, B. See Williams v. Williams F
(1971) 2 All ER 764 where the Court relied on a number of small indicia tending
to show that Matrimonial Causes Act. 1970 had retrospective effect, even though
there was no provision in the Act expressly tending to lead to that conclusion.
I am of the view that Moon v. Durden was wrongly
decided and I do not intend to follow it in preference to the clear decision in
Smallwood v. Gallardo.
The object of section 11, in my respectful view, is to prohibit
"fronts" being
used to hold shares in a bank thus preventing such an important
sector of the national economy being controlled by a few individuals. That
being so, I cannot imagine that the legislature would intend that actions to
enforce such arrangements (under the guise of trusts) made before the Act was
promulgated would continue to be maintained. As revealed by cases that have
come before this Court, the constant boardroom conflicts in the banking sector
before the promulgation
of the Banks and other Financial Institutions Decree centred around control of these institutions by powerful
individuals through the use of fronts.This, the
Decree set out to put an end to by the provision of section 11 in the Decree.
In the case on hand the expression "shall be maintained" as
used in section 11, construed in its natural sense, contemplates the barring of
all actions, whether pending or not, coming within the provisions of section
11.
Bearing the above in mind it is my view, and I so hold, that Section 11
applies not only to future actions but also to actions pending at the time the
Decree came into force. The conclusion I arrive at is that not only are the
plaintiff's claims in the two consolidated suits (except claims 5 of the 2nd
suit) with the contemplation of Section 11, the proceedings, although pending
at the time the Decree came into force, are affected by it because by the use
of the word "maintain" in the section it covers pending proceedings
as well. I, therefore, hold the courts below are wrong to have held that the
courts still had jurisdiction to entertain the Suits. In my respectful view,
Section 11 has aborted the suits and as the plaintiffs no longer have any right
to maintain them, they are hereby struckout except as
to suit No. LD/938/ 87 where the 5th claim for –
"an order for
refund of the sum of N70,000.00 being balance of the N800,000.00
held by the defendant on the plaintiff's behalf still subsists. The 2nd
plaintiff is at liberty to pursue this claim.”
I need to observe, although it is not an issue before us, that for the
reasons I have stated above, the defendant's counter-claim in suit No. LD/938/87 also falls within the ambit of Section 11, but
his counter-claim in suit No. LD/845/87 does not.
In view of the conclusion
I have just reached above, I do not consider it necessary to deal in detail
with the other issues raised by the defendant in his Brief. Suffice to say,
however, that I do not see a case of denial of fair hearing made out against
the court below. It may be that that court misconceived the defendant's case
put before it and thereby came to a wrong conclusion. This is not to say that
that court had denied the defendant a fair hearing. What it may mean where the
court has asked the wrong questions is that it's jurisdiction in determining
the matter before it might be affected; it is still no case of denial of fair
hearing. As stated earlier in this judgment, that court in the lead judgment of
Ubaezonu J.C.A. first asked
itself the correct question but later proceeded to ask the wrong question and,
as shown by my conclusion, thereby came to a wrong decision. This disposes of
issues 1 and 2. As there can be no direct appeal from the high Court to this
Court, the Issue posed as Issue 3 is, in my respectful view, incompetent. I say
no more on it.
Finally if this appeal rests with me, I
would allow it and set aside the judgment of the court below affirming that of
the trial high Court. The plaintiffs claims in Suit
No. LD/845/87 would be struck out, the right of the plaintiffs to continue with
that suit having been taken away by section 11 of Decree No. 25 of 1991. The
plaintiff's claims 1,2,3 & 4 in LD/938/87 would
equally be struck out. The plaintiff in that suit is at liberty to proceed with
the hearing of the suit in respect of claims 5 thereof. I would award N1,000.00 to the defendant being costs of this appeal.
Counsel
|
Chief G.O.K
Ajayi, S.A.N. (with him, B. Ayanlaja, A.O. Kuyatsemi
(Miss), Okosun and T. N. Osunde
(Miss) |
...... |
For
the Appellant. |
|
Chief F. R. A Williams S.A.N. (with him Ladi Williams, J. U. Igwe, A..O Jagun(Miss), and S.N. Nelson-Cole(Miss) |
...... |
For
the Respondents. |