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