Corporate Affairs Commission V. The Registered Trustees of Celestial Church of Christ (Nigeria Diocese) (2009)
LawGlobal-Hub Lead Judgment Report
JIMI OLUKAYODE SADA, J.C.A
This is an appeal against the Judgment of the Federal High Court Abuja in Suit No: FHC/ABJ/CS/277/05 – THE REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST (NIGERIA DIOCESE) VS. CORPORATE AFFAIRS COMMISSION delivered on the 20th day of December 2005 wherein the Court granted all the reliefs sought by the Plaintiff now Respondent in this appeal.
Briefly the facts of the case are that the Respondent as Plaintiff in the lower Court by an Originating Summons filed on the 18th day of May 2005 sought for the following reliefs:-
- A declaration that the Defendant cannot statutorily countenance a caveat or objection filed to the replacement and appointment of additional Trustees after 28th days of the last publications in the newspapers of the proposed change or replacement and appointment of additional trustees.
- A declaration that the Defendant has no discretion under Companies and Allied Matters Act not to assent to the application for the replacement and appointment of additional Trustees upon fulfillment of the statutory requirement for such replacement and appointment of additional trustees.
- A declaration that the reliance of the Defendant on an objection filed after the expiration of 28 days of the last publication in the newspapers of the replacement and appointment of the Reverend (Pastor) Emmanuel Friday Oschoffa as a trustee is unknown to the Companies and Allied Matters Act.
- An Order directing the Defendant to register Reverend (Pastor) Emmanuel Friday Oschoffa as a Trustee of the Plaintiff forthwith.
After the address by Counsel for both parties the lower Court in a considered Judgment granted all the reliefs sought by the Respondent and ordered the Appellant to register Reverend (Pastor) Emmanuel Friday Oschoffa as a trustee of the Respondent forthwith.
Dissatisfied with the said Judgment the Appellant has appealed to this Court with a notice of appeal containing three grounds dated the 15th day of March 2006.
The learned Counsel for the Appellant formulated three issues for determination as follows:-
- Whether the trial Court was right in substituting the arguments of the Plaintiff by suo motu citing and relying on Sections 677 and 678 of the Companies and Allied Matters Act, Cap 59 Laws of the Federation in the place of Section 597(3) and 599 of the Companies and Allied Matters Act, Cap C 20 Laws of the Federation 2004 cited and relied upon by the Plaintiff without giving the Appellant the opportunity to be heard.
- Whether the trial Court was right in holding that the Appellant cannot countenance an objection received by it after 28 days when the Appellant was not heard on the issue.
- Whether the trial Court was right in declaring that Reverend (Pastor) Emmanuel Friday Oschoffa be registered as a trustee inspite of several pending litigations against him and known to the Appellant.
The Learned Counsel for the Respondent on the other hand formulated three issues for determination as follows:-
- Whether editions of the Law of Federation of Nigeria, from which the relevant provisions of the Companies and Allied Matters Act are read by the Respondent and the lower Court alike, are relevant in the considerations of the substance of the Respondent’s case and/or whether the Appellant was given fair hearing.
- Whether in view of the provisions of the Companies and Allied Matters Act, the lower Court was right in holding that the Appellant could not countenance an objection received after 28 days of the last date of publication of the appointment.
- Whether the trial Court ought to have gone beyond the issue before it by considering the alleged litigations against Reverend (Pastor) Emmanuel Friday Oschoffa instead of declaring him as a trustee of the Respondent.
Even though the Appellant was duly served on 29/1/09 with hearing notice, since he was absent in Court on 10th day of February 2009 when the appeal came up for hearing, therefore pursuant to Order 17 rule 9 (4) of the Court of Appeal Rules 2007, the appeal was treated as having been duly argued since the Appellant has filed his brief of argument.
The Learned Counsel for the Respondent at the hearing adopted and relied on the Respondent’s brief of argument in urging that the appeal be dismissed.
The issues as formulated by Learned Counsel on behalf of the parties are similar. However the issues set out on behalf of the Appellant are considered relevant and apt to determine this appeal.
Issue 1
Whether the trial Court was right in substituting the arguments of the Plaintiff by suo motu citing and relying on Sections 677 and 678 of the Companies and Allied Matters Act, Cap 59 Laws of the Federation in the place of Section 597(3) and 599 of the Companies and Allied Matters Act, Cap C 20 laws of the Federation 2004 cited and relied upon by the Plaintiff without giving the Appellant the opportunity to be heard.
Learned Counsel for the Appellant submitted that the Leaned Counsel for the Plaintiff, now Respondent in this Appeal cited and relied upon a nonexistent law when he cited and relied on Sections 597 (3) and 599 of the Companies and Allied Matters Act Cap C 20, Laws of the Federation 2004 when arguing his case in the lower Court.
He argued further that the application in this case was by way of Originating Summons, which in essence was for the interpretation of the provisions of a law, and the Plaintiff had a duty to ensure that his application is predicated on an existing law.
He also argued that the 1990 Laws of the Federation was compiled by a body set up by a statute i,e. Section 1 of The Revised Edition (Laws of the Federation of Nigeria) Decree No. 21 of 1990 and Section 6 of Revised Edition (Laws of the Federation Amendment Decree No. 11 of 1991, Learned Counsel for the Appellant submitted that there is no enabling Act of the National Assembly which has brought the 2004 Laws of the Federation into force so as to make an existing body of laws.
He went further in his submission that the lower Court in its Judgment suo motu relied on the provisions of the Companies and Allied Matters Act 1990.
He stated that no opportunity was given to the Appellant’s Counsel to be heard on the issue.
He submitted that if a trial Court must raise an issue of fundamental nature like this, suo motu, it must afford the parties the opportunity of being heard on it. He relied on the following cases:-
Oshodi vs. Eyifunmi (2000) 13 NWLR Part 684 Page 298 Ratio 19;
Kankara VS. C.O.P. (2002) 13 NWLR Part 785 Page 596 at 601;
Ajao v. Ashira (1973)11 S.C. Page 23;
Kutu v. Balogun (1978) 1 S.C. Page 53;
Ejowhomu vs. Edor-star Mandillas Ltd (1986) 5 NWLR Part 39 at Page 1;
Adegoke v. Adibi (1992) 5 NWLR Part 242 Page 410;
Agbi v. Ogbe (2004) 17 NSCQR Page 499;
Oba Adejgbe vs. Ologunja (2004) 6 NWLR Part 868 at Page 46.
He finally submitted that the trial has prejudiced the Appellant and it has caused a miscarriage of Justice.
In his own response the Learned Counsel for the Respondent, stated that the Respondent relied on Sections 597 (3) and 599 of the Companies and Allied Matters Act Cap C 20 Laws of the Federation 2004 but that the Appellant never raised any objection to citing of the aforesaid provisions. He referred to pages 100 to 101 of the record of appeal and submitted that the Counsel for the Appellant merely committed a portion of his argument in reply to the Respondent’s argument to the effect that the case of the Respondent was incompetent because it cited the aforesaid provision of Companies and Allied Matters Act, 2004.
He also referred to the Judgment of the lower Court and submitted that where a relief or remedy is provided for by any written law or by common law or equity and it is properly claimed by a party seeking the relief or remedy, it cannot be denied the party simply because he has applied for it under a wrong law as to do so would be unjust. He referred to the following cases:-
Mudashiru vs. Persons unknown (2006) 8 NWLR Part 982 Page 267-
Falobi VS. Falobi (1976) 1 NWLR Page 169;
Henry Stephens Eng. Co Ltd vs. Complete Home Ent. Nig. Ltd (1987) 1 NWLR Part 47 at Page 40.
He finally submitted that where parties to a case have been given equal ample opportunity to be heard and present their respective cases, neither of them can subsequently rely on the Constitutional provision of fair hearing to seek to upturn the Judgment entered thereafter.
He relied on the following cases:-
INEC VS. Musa (2003) 3 NWLR Part 806 Page 72 at 195 – 196 Paragraph G.A;
Ekpeto vs. Wanogho (2004) 18 NWLR Part 905 Page 394 at 414 Paragraphs D.G.
He finally urged that issue 1 be resolved against the Appellant.
In this appeal the contention of the Appellant was that the Plaintiff at the lower Court now Respondent cited and relied on a non-existent law when he cited Sections 597 (3) and 599 of the Companies and Allied Matters Act Cap. C 20 Laws of the Federation 2004, He argued further that the lower Court based its Judgment on Companies and Allied Matters Act 1990 suo motu and as a result no opportunity was given to the Appellant’s Counsel to be heard on the issue.
The lower Court in its Judgment at pages 108 – 109 of the record of appeal held thus on the contention:-
“………………without wasting any time and breath, I wish to address this submission quickly. The compilation of laws 2004 (sic) cannot be said to be non-existent. The fact that statutory instrument mandating the application of these compilations has not been issued does not erode the fact of existence and the application of the individual Jaws that make up the compilation. What we have in the compilation are existent laws validly made by the National Assembly and all of which have been in existence before the compilation.
In fact, the defendant is a creation of the Companies and Allied Matters Act and if that Act is said to be non-existent because it is compiled in the bound volumes of the laws of the Federation of Nigeria 2004, it goes without further insinuation that Mr. Ekwo is saying that the Defendant who he represents is non-existent.
That submission saying the law on which the Plaintiff relies is non-existent is incorrect and it is without any foundation.
Before the 2004 series, there is the 1990 compilation which hosts CAMA as Cap. 59. By this the law provides in Section 677 – 678 thereof as follows:-
“677(1) ………………………………
(2) ………………………………
(3) ………………………………
(4) ………………………………
676(1) ………………………………
(2) ………………………………
What the compilation in 2004 did is to put the laws together and by the process of doing that the chapter in which CAMA is located has changed from where it was in 1990. Also, the section of the law dealing with change and registration of the new trustees under part C has changed while in the 1990series it was Section 677, in the 2004series, it was Section 594. There is no difference in the content of the requirement for the change.”
In this case there is no doubt that the Learned Counsel for the Respondent cited and relied upon Section 597 (3) and 599 of the Companies and Allied Matters Act Cap C 20 Laws of the Federation 2004 but that the Court in its Judgment relied on Section 677 and 678 of the Companies and Allied Matters Act Cap 59 Laws of the Federation of Nigeria1990 in arriving at its decision.
The Learned Counsel for the Appellant contended that the law relied upon by the Respondent was non-existent. But a careful examination of the reliefs sought by the Respondent at the lower Court as shown earlier in this Judgment would reveal that the said reliefs are provided for by the Companies and Allied Matters Act, Cap 59 Laws of the Federation 1990 which is a written law.
Therefore the Respondent cannot be denied the said reliefs simply because he relied on a different or wrong law.
I am fortified in my view by the decision of this Court in Mrs Foluke Mudashiru vs. Persons Unknown and 5 others (2006) 8 NWLR Part 982 Page 267 Page 271 where it was held as follows:-
“where a relief or remedy is provided for by any written law or by common law or equity and it is properly claimed by a party seeking the relief or remedy, it cannot be denied the party simply because he has applied for it under a wrong law or rule of law as to do so would patently be unjust. Falobi v. Falobi (1976) 1NMLR Page 169,;
Henry Stephens Eng. Co Ltd VS. Complete Home Ent. (Nig.) Ltd (1987) 1 NWLR Part 47 Page 40, referred to.”
Furthermore it is my humble view that pursuant to Section 74 (1) (a) of the Evidence Act, the lower Court or any other Court could take notice of all laws or enactments and subsidiary legislation made in any part of Nigeria. See the following cases:-
Amata vs. Omofuwa (1997) 2 NWLR Part 485 Page 93;
– Gambo vs. Tukuyi (1997) 10 NWLR Part 526 Page 591:
– UBN PLC VS. SCPOK Nig Ltd (1998) 12 NWLR Part 578 Page 439.
The Companies and Allied Matters Act 1990 being an enactment which came into force in January 1990, is an existing law within the contemplation of Section 315 of the 1999 Constitution of the Federal Republic of Nigeria.
The lower Court was right to have taken judicial notice of it.
In Fasakin Foods Nig. Ltd vs. Shosanya {20061 10 NWLR Part 987
Page 126 at 167, Onnoghen JSC held as follows:-
“By virtue of Section 274 (4) of the 1979 Constitution “existing law” means any law and includes any rule of law or any enactment or instrument whatsoever which ;s in force immediately before the date when the section came into force or passed or made before that date came into force after that date.”
It was also contended on behalf of the Appellant that he was not afforded the opportunity of responding to the law cited by the Learned Trial Judge.
According to the record of appeal pages 97 to 101, the Originating Summons was argued on 27/10/05 and Counsel for the Appellant asked for a date to reply at the lower Court which was accordingly granted And on 10/11/05 Learned Counsel for the Appellant replied to the submissions of the Counsel for the Respondent.
After the address the case was reserved for Judgment by the lower Court.
The lower Court was right when it relied on Section 677 and 678 of the Companies and Allied Matters Act Cap 59, Laws of the Federation of Nigeria 1990 in its Judgment because the issue of the nonexistent law raised by Counsel for the Appellant did not take into consideration that the reliefs sought by the Respondent at the lower Court were provided for by the Companies and Allied Matters Act Cap 59, Laws of the Federation of Nigeria 1990.
The lower Court has done substantial Justice to the matter by refusing to follow technicality. Furthermore if the provisions of Section 677 and 678 of the Companies and Allied Matters Act relied upon by the trial Judge is Juxtaposed with the provisions of Section 597 (3) and 599 of the Companies and Allied Matters Act Cap C 20 Laws of the Federation of Nigeria 2004 it would be discovered that there is no difference between the provisions of the two laws.
For the Counsel to the Appellant to now say that he was not heard on the issue is as if he wanted to technically usurp the Judicial discretion of the lower Court.
In Falobi vs. Falobi (1976) N.S.C.C. Page 576 at 581 lines 34 to 39 the Supreme Court held as follows:-
“………………..Moreover, the objection to the application of the provisions of Section 12 of the Infants Law in the particular circumstances of the case in hand, while it appear to be correct, is of a purely technical nature, and the Western State Court of Appeal should not have refused to do substantial Justice between the parties upon a pure technicality. See (G.B. Ollivant vs. Vanderpuye (1939) 2 WACA Page 369 at 370).
It is my humble view that the lower Court in this case has done substantial Justice between the parties, There is a world of difference between a Judge raising an issue and raising a new issue suo motu. A trial Court is only under obligation to invite Counsel to parties to address it when and only when it raises a new issue in the matter but not when it applied principles of law not cited by Counsel, whether statutory or judicial in the course of writing its Judgment
In Finnih vs. Imade (1992} 1 NWLR Part 219 Page 511 at 357 the Supreme Court held thus:-
“The principle that Judgment of the Court must be confined to the issues raised by the parties does not extend to the determination of the issue before the Court. Hence once the issues on which Judgment is based are findings of fact arising from the pleadings and evidence before the Court the fact that the Court has in the determination of these issues, applied principles of law not cited by Learned Counsel will not affect the decision. This has always been the accepted Jaw.”
In view of the foregoing it could not be said that the Appellant was not given fair hearing because both Counsel for the parties were given equal opportunities to be heard and present their case. Fair hearing is neither a magic wand to avoid fair proceedings nor a concept that operates in vacuo. See the following case:-
INEC vs. Musa (2003) 3 NWLR Part 806 Page 72 at 195 – 196 Paragraphs G to A and B to C;
Ekpeto vs. Wanogho 92004) 18 NWLR Part 905 Page 394 at Page 414 Paragraphs D to G.
In view of all I have adumbrated above, this issue is therefore resolved in favour of the Respondent and against the Appellant.
Issue 2
Whether the trial Court was right in holding that the Appellant cannot countenance an objection received by it after 28 days when the Appellant was not heard on the issue.
The Learned Counsel for the Appellant referred to the concluding part of the Judgment of the lower Court on pages 109 – 110 of the Record of Appeal. He then submitted that the Appellant was not given an opportunity of reply on the point considered and that the lower Court did not give any reason for denying the Appellant an opportunity to reply on this point. He referred to Amoo vs. Alabi (2003) 15 NSCQR Page 132 at 149.
He also referred to the provisions of Section 678 (1) and (2) of the Companies and Allied Matters Act 1990. And he submitted that the provision contains the word “or” after specifying the period He went further that the word “or” is disjunctive and creates after it permissiveness to countenance objection received thereafter, consider uphold or reject and thereafter the commission having regard to all the circumstances may assent to the application or withhold its assent.
He also referred to the definition of the word “or” by Black’s Law Dictionary 6th Edition Page 1095. He referred to Section 18 (3) of the Interpretation Act 1990 which states that:-
“The word “or” and the word “other” shall, in any enactment be construed disjunctively and not implying similarity.”
He referred to the following cases:-
Ifekwe v. Madu (2000) 14 NWLR Part 688 Page 459 at 477 Paragraph C;
Ante vs. Uzorka (1993) 8 NWLR Part 309 Page 1.
Learned Counsel for the Appellant also contended that the word “may” in the said provisions does not occasion any sense of compulsion. And the word “if” also in the provision is a conditional word. He referred 10 the case of:- Emeka Onye Mobi v. President D.C.C. (1995) 3 NWLR Part 381 at Page 5.
He finally submitted that the trial Court has altered the mode of exercise of the powers which the Appellant is given pursuant to the provisions of Companies and Allied Matters Act.
In his response on this issue the Learned Counsel for the Respondent submitted that where an Appellant intends to raise a new issue which was not canvassed at the lower Court, he must fulfill the condition precedent of first seeking the leave of Court.
He referred to the following cases:-
Ezekwensili v. Dnwunagbu (1998) 3 NWLR Part 541 Page 217 at 238 Paragraph B;
Joy v. Dom (1999) 9 NWLR Part 620 Page 538 at 547;
Eze v. Okechukwu (1998) 5 NWLR Part 548 Page 43 at 62;
Kiagama v. Namnai (1997) 3 NWLR Part 495 at Page 549 at 565;
Jadesimi v. Okotie-Eboh (1996) 2 NWLR Part 429 Page 128 at 144.
He submitted that the arguments of the Appellant on issue 2 in the Appellant’s brief of argument clearly raised new issues which were not before the lower Court. He referred to the case of Golday Co. Ltd v. C.D.B. Plc (2003) 5 NWLR Part 814 Page 586 at 604 Paragraph D to F.
And he urged that the arguments on the said issue 2 should be ignored.
He also referred to Section 678(1) and (2) of Companies and Allied Matters Act 1990. And also paragraph 5.05 of the Appellant’s brief of argument where it was conceded that the Appellant neither assented nor refused to give its consent to the application of the Respondent.
He submitted that the Appellant’s argument on the import of the word “or” and “other” is misplaced. He urged this Court to hold that the Learned trial Judge was right in making a positive order to compel the Appellant to perform its statutory duty.
It was contended on behalf of the Appellant that the Judgment of the lower Court took into account the submissions of the Plaintiff, and that the Appellant was not given an opportunity to reply to this point.
The contention referred to above was dealt with under Issue 1 earlier resolved against the Appellant. I shall adopt my reasoning and conclusion in the said issue.
Consequently it is my humble view that the Appellant was given opportunity to reply.
The Respondent also raised the issue that the arguments of the Appellant on Issue 2 in the Appellant’s brief are new issues which were not raised at the lower Court, but the Appellant claimed that he was not given the opportunity to reply to the Respondent’s submission at the lower Court.
He therefore raised the legal issues.
It is settled that where an Appellant seeks to raise a case different from that agitated in the lower Court, if he has applied for leave to raise such an issue, such a leave would be refused because to allow such a case would amount to allowing a litigant to commence a new case before the Court of Appeal as if it were a trial Court.
See the following cases:-
Ejiofodomi vs. Okonkwo (1982)11 SC Page 74;
Attorney General OF Oyo State VS. Fairlakes Hotel Ltd (1988) 5 NWLR Part 92 at Page 1.
In Ezekwensili v. Onwuagbu (1998) 3 NWLR Part 541 at Page 217 at Page 238 Paragraph B Tobi JCA (as he then was) observed as follows:-
“Parties do not have the freedom of the air to make a fresh case on appeal. They are bound by the case already made at the trial Court and present same on appeal as there will be no end to litigation if parties are allowed to raise fresh issues on appeal at will.”
In the instant appeal, it is true that the arguments of the Appellant on Issue 2 are new, as they were not raised before the lower Court, and he has not applied for leave to raise new issues. But a careful examination of the said Issue 2 would reveal that it involves a substantial point of law, and no further evidence would have been adduced which would affect the decision, this Court will therefore allow the issue to be raised so as to prevent an obvious miscarriage of Justice. See Chief James O. Ibori vs. Engineer G. Agbi and 5 Others (2005) 28 WRN Page 1.
In order to determine whether the trial Court was right in holding that the Appellant cannot countenance an objection received by the Appellant after 28 days, it would be necessary to examine the provisions of Section 678 (1) and (2) of the Companies and Allied Mailers Act 1990 which provides as follows:-
“(1) If, after the advertisement no objection is received within the period specified in Section 677 of this Act or, where any objection is received, the same is rejected, the Commission, having regard to all the circumstance, may assent to the application or withhold assent.
(2) If the Commission assents to the application, it shall register the trustees and issue a certificate in the prescribed form.”
In the instant appeal, the Appellant conceded that it neither assented nor refused to give its assent to the application of the Respondent. The Learned Counsel for the Appellant went further to give a general interpretation for the words “or” and “may” which appeared in the provisions of Section 678 (1) and (2) of the Companies and Allied Matters Act 1990.
The Learned Counsel for the Respondent urged this Court to hold that the trial Judge was right in making a positive order to compel the Appellant to perform its statutory duty.
A careful review of the said Section 678 (1) of the Companies and Allied Matters Act showed that the word “may” is to be construed as shall which is mandatory, when there is the need to perform public duty.
In Ogualaji vs. A.G. Rivers State (1997) 6 NWLR Part 508 Page 209 at 233 Paragraph 0 to E it was held per Iguh JSC as follows:-
“It therefore seems to me settled that although Section 28 (1) of the State Laws law of Eastern Nigeria, applicable in Rivers State provides that the lessor “may” enter a suit for recovery of possession on expiration of lessees lease, the word “may” in that section must be construed as mandatory and or meaning shall or must since it imposes a duty upon a public functionary for the benefit of a private citizen. In the same vein, a careful reading of Sections 10 and 28 of the State lands law side by side would also reveal that although the word shall is used in the first part of Section 10, both the proviso to that section and Section 28 (1) which makes it clear that the word “shall” therein ought to be construed as directory.
Similarly Karibi Whyte JSC in Adesola vs. Abidoye (1999) 14 NWLR Part 637 Page 28 at Page 56 Paragraphs D – F observed as follows:-
“Although the ethymological meaning of may is permissive and facultative and seldom can mean “must” and imperative, it assumes this last mentioned character, when there is anything in the provision that makes it the duty on the person on whom the power is conferred to exercise that power. When the exercise of the power is coupled with a duty on the person to whom it is given to exercise it, then it is imperative. In the instant case, where Section 22 (5) of the Chiefs Law of Oyo State 1978 places a duty on the aggrieved who desires to set aside the decision of the prescribed authority to make his representation to the Commissioner for Chieftaincy Affairs within 21 days of the decision, the use of the expression “may” in this situation is not merely facultative but mandatory. There is no alternative. The aggrieved has no Choice of Action in the remedy provided for him. Accordingly, the word “may” in Section 22 (5) of the Chiefs Law of Oyo State 1978 should be construed as imperative, the exercise of the right not being optional. “See also:-
Bamaiyi vs. A.G. Federation (2001) 12 NWLR Part 727 at Page 468 at 497 Paragraph F to G.
In view of the foregoing it is my humble view that the Appellant being a public functionary upon whom the duty has been imposed by the aforesaid provisions of Companies and Allied Matters Act is under a duty to perform because it is imperative and it has no option.
The submission by Learned Counsel for the Appellant that the trial Judge has altered the mode of exercise of the powers which the Appellant is given pursuant to the provisions of Companies and Allied Matters Act is not tenable because parties cannot waive compliance with or whittle down the requirement of statutory provisions which are clear and unambiguous.
See Oviawe vs. Integrated Rubber Products Nig. Ltd (1997) 3 NWLR Pt 492 Page 126 referred to
See Ibrahim vs. INEC (1999) 8 NWLR Part 614 Page 334.
The Learned trial Judge was therefore right in his interpretation of Section 678 (1) and (2) of Companies and Allied Matters Act to the effect that the Appellant cannot countenance an objection received by it after 28 days.
Consequently this issue is resolved in favour of the Respondent and against the Appellant.
Issue 3
Whether the trial Court was right in declaring that Reverend (Pastor) Emmanuel Friday Oschoffa be registered as a trustee inspite of several pending litigations against him and known to the Appellant.
Learned Counsel for the Appellant referred to paragraph 12 (iii) and (iv) of the Counter Affidavit filed at the lower Court which states as follows:-
“(iii) that the Plaintiff has admitted in Exhibit M that the several cases i.e. Suit No: ID/25/2003, ID/1598/2002, CA/L/234/2002 and 1/253/2004 involving the proposed trustee are still pending in Court.
(iv) that in the suits above the appointment of the proposed trustee as Pastor is severally challenged.”
He also referred to the relevant part of the Judgment where the trial Court held as follows:-
“No reason other than the pendency of Court cases was given by the Defendant. It is therefore a fact well clarified that the Defendant has acted on the caveat filed after the expiration of the statutory specified 28 days for such a caveat. The action of the Defendant therefore cannot be justified in this case.”
It was submitted on behalf of the Appellant that having brought to the notice of the lower Court, the fact of pendency of suits against the Plaintiff, the Court should have restrained itself from entering judgment in order to preserve the status quo,
The Learned Counsel for the Respondent on the other hand adopted his arguments on Issues 1 and 2 and he urged this Court to resolve this issue in favour of the Respondent.
He went further in his submission that the lower Court was not in proper stead to pronounce on Ground 3 of this appeal because the issue of pending cases against the person appointed was not raised within the statutorily required 28 days to warrant consideration of the trial Court.
The pertinent question which the lower Court was invited to decide was whether the Appellant was right to countenance objection filed after 28 days of the last publication in the national Newspaper of the appointment in issue.
In order to appreciate this point it would be necessary to set out fully Sections 677 and 678 of the Companies and Allied Matters Act 1990 relied upon.
It states thus:-
“677(1) If the Commission is satisfied that the application has complied with the provisions of Sections 674, 675 and 676 of this Act it shall cause the application to be published in a prescribed form in two daily newspapers circulating in the area where the corporation is to be situated and at least one of the newspapers shall be a national newspaper.
(2) The advertisement shall invite objections, if any, to the registration of the body.
(3) The objection shall be forwarded to reach the Commission within twenty-eight days of the date the last of the publications in the newspapers.
(4) If any objections are made, the Commission shall consider them and may require the objectors and applicants to furnish further information or explanation, and may uphold or reject the objection as it considers it fit and inform the applicant accordingly.
678(1) If after the advertisement, no objection is received within the period specified in Section 677 of the Act or where any objection is received, and the same is rejected, the Commission, having regard to all the circumstances, may assent to the application or withhold its assent.
- If the Commission assents to the application, it shall register the trustees and issue a certificate in the prescribed form.”
The objection in this case was not received within the statutorily required 28 days
In my humble view before the objection in this case could be entertained, it has to be received within the statutorily required 28 days. If it is entertained after the statutorily required days, there will be no end to litigation on the issue of appointment as in the present case and it could be used by mischief makers to pull down their opponents.
It is now settled that where an Act prescribes a particular method of exercising a statutory power, any other method of exercise of it, is excluded.
See -Isaac Ogunlaja vs. A.G. of Rivers State and others (1997) 6 NWLR Part 508 Page 209.
Auchi Polytechnic Auchi vs. Peter N. Okuoghae (2005) 28 NRN Page 177.
Therefore the objection in respect of the pending litigations against Reverend (Pastor) Emmanuel Friday Oschoffa which came after the required 28 days is worthless and should be discountenanced. The lower Court was therefore right in declaring that he should be registered as a trustee.
This issue is also resolved in favour of the Respondent and against the Appellant.
In the final analysis this appeal therefore failed in its entirety, and it is accordingly dismissed.
There shall be no order as to costs. The parties are to bear their own costs.
Other Citations: (2009)LCN/3171(CA)
