Bernard Amasike V. The Registrar-general, Corporate Affairs Commission & Anor (2005)
LawGlobal-Hub Lead Judgment Report
MARY PETER-ODILI, J.C.A.
The appellant being plaintiff filed an originating summons on the 13th of November, 2003 at the Federal High Court, Abuja, Coram: Ukeje, J. seeking among other things, a declaration that the respondents (defendants in the court below) rejection of the appellant’s proposed corporate names- “Institute of Corporate Governance”, “Bureau of Corporate Governance” and “Institute of Corporate Policy and Corporate Governance” – by designating same as “Not Registable” under Part C of the Companies and Allied Matters Act (CAMA) is improper, ultra vires and not in accordance with CAMA provisions.
The appellant averred he filed with the respondents three successive applications for the approval and reservation of the foregoing corporate names and paid the appropriate fees. That inspite of repeated demands, the respondents refused to state the grounds for the decision that the proposed names were “not registrable”.
Dissatisfied with the respondent’s decision, the appellant filed the substantive suit to determine inter alia whether having regard to Part C of the Companies and Allied Matters Act, 1990, it was proper for the respondents to reject as “non registrable” the appellants proposed corporate names – “Institute of Corporate Governance”.
“Bureau of Corporate Governance” and “Institute of Competition Policy and Corporate Governance.”
The respondents filed a counter affidavit to the originating summons. The originating summons was heard and on July 5, 2004 the lower court determined in ruling, striking out the appellant’s suit on the following grounds:
- By section 30(1)(c) of CAMA, the names respectively are capable of misleading as to the nature and extent of the proposed company’s activities; and in addition, the names are offensive and are contrary to public policy.
- By section 30(2)(a), the proposed name each by the employment of the words making up the name suggests and is calculated to suggest that the company enjoys or would enjoy the patronage of the Government of the Federation or any of the States.
- There is no where under Part C that the plaintiff was required to submit for availability of name.
Dissatisfied with the ruling of the lower court, the appellant appealed to the Court of Appeal for a reversal of the lower courts’ ruling and a determination by the Court of Appeal of the questions presented in the originating summons together with the reliefs sought therein which reliefs are as follows:
(i) A declaration that the defendants’ rejection of the plaintiff’s proposed corporate name – “Bureau of Corporate Governance” by designating same as “Not Registrable “under Part C of CAMA is improper, ultra vires and not in accordance with CAMA provisions.
(ii) A declaration that the defendants rejection of the plaintiff’s proposed Corporate name -” Bureau of Corporate Governance’ by designating same as “Not Registrable” under Part C of CAMA is improper, ultra vires and not in accordance with CAMA provisions.
(iii) A declaration that the defendants’ rejection of the plaintiff’s proposed Corporate name – “Institute of Competition Policy and Corporate Governance” by designating same as “Not Registrable “under Part C of CAMA is improper, ultra vires and not in accordance with CAMA provisions.
(iv) A declaration that defendants’ exercise of its discretion by rejecting the plaintiff’s proposed Corporate names to wit: Institute of Corporate Governance “Bureau of Corporate Governance” and/or ”’Institute of Competition Policy & Corporate Governance” is invalid in that the said discretion was not judiciously and/or judicially exercised.
(v) A declaration that the rejection by the defendants of the plaintiff applications for ‘name availability” with respect to the proposed corporate names, was improper and not in accordance with the provisions of CAMA, 1990.
(vi) A declaration that the defendants’ response in rejecting the plaintiff’s application for ‘name availability by making same “Not Registrable” was vague and ambiguous and thus an abuse of discretion.
(vii) A declaration that the names ‘Institute” and/or “Bureau” are not prohibited names under the Act and that the defendants were not justified in refusing same as “Not Registrable.”
(viii) An order of perpetual injunction restraining the defendants from rejecting the plaintiff’s proposed names to wit: “Institute of Corporate Governance”. “Bureau of Corporate Governance” and/or ‘Institute of Competition Policy & Corporate Governance.”
(ix) An order directing the defendants to immediately process and approve the names as available and registrable under Part C and to proceed to register and incorporate the same to wit: ‘Institute of Corporate Governance “, Bureau of Corporate Governance” and/or ‘Institute of Competition Policy & Corporate Governance.”
The appellant through counsel formulated two issues for determination. The respondent in their brief of argument reformulated the two issues of the appellant into a single issue. I shall utilise the two issues as put forward by the appellant for ease of reference and they are as follows:
- Whether the lower court was right to have considered legal and factual issues raised suo motu by the court in striking out the suit without affording the appellant the opportunity of being heard (Grounds 3, 4 & 6).
- Whether the lower court was right in holding that the respondents were justified in their decision that the corporate names proposed by the appellant are unregistrable by virtue of the Provisions of the Companies and Allied Matters Act, 1990 (Grounds 1, 2 & 5).
Learned counsel for the appellant argued in his brief of argument in answer to Issue 1 that the lower court erred in law when it relied on legal and factual issues raised suo motu in striking out the substantive suit without affording the appellant an opportunity to be heard. He went on to say that when a court raises a point suo motu, the parties to it must be given an opportunity to be heard on such point particularly the party that may suffer some disadvantage or disability as a result of such point raised suo motu. This is to ensure that the parties are given a fair hearing in accordance with the audi alteram partem rule. He cited the cases of Kankara v. C.O.P (2002) 13 NWLR (Pt. 785) 596 at 601; Ajao v. Ashiru (1973) 11 SC 23; Kuti v. Balogun (1978) 1 SC 53; Ejowhomu v. Edok-Eter Mandilas Ltd. (1986) 5 NWLR (Pt. 39) 1; Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410; Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684.) 298.
Learned counsel for the appellant further stated that the lower court suo motu raised and considered inter alia the public policy implications of the proposed names. That the lower court proceeded and on its own raised the issue of the method adopted by the plaintiff/appellant in forwarding or commencing his application. He went on to say that the lower court raised the issues suo motu in its ruling, it had failed to give the appellant an opportunity to be heard on those issues before it determined therein, especially since those issues were not raised in the defendants/respondents’ counter-affidavit and were indeed the fulcrum upon which the court reached its decision. That although the defendants/respondents led no evidence to justify its rejection of the proposed corporate names, the lower court made specific findings. That throughout the hearing, no evidence was led to establish that the proposed names were offensive and/or against public policy. Learned counsel said the learned trial Judge considered extraneous facts in upholding the decision of the defendants/respondents and thereby occasioned a grave miscarriage of justice. He referred to Agunbiade v. State (1999) 4 NWLR (Pt. 599) page 391 at 396.
Respondent through learned counsel, Inyang E. Ekwo said that appellant’s issue No.1 is peripheral and does not resolve the proper issue in conflict which is whether the three names proposed by the appellant were proper names to be approved for registration pursuant to section 673 of Part C, CAMA.
He said that the only primary issue for determination in this appeal is:
Whether the trial Judge is right in holding that the three names.
(i) Bureau for Corporate Governance
(ii) Institute of Corporate Governance
(iii) Institute for Competitive Policy
And Corporate Governance were not registrable under Part C of the CAMA.
Learned counsel for the respondent referred to part of the ruling F relevant to this discourse which he reproduced in argument. He stated on that the respondent had at the lower court contended that the names proposed by the appellant if subjected to the strict ordinary requirements of the provisions of section 30(2)(a) CAMA in the ordinary meanings of the component words as argued by counsel on the other side are not suggestive of government patronage or Department of Government. That they urged the court to be persuaded by a reasonable man’s test in the circumstance that is how will a reasonable man view the name especially in a peculiar situation in Nigeria where some Government departments are referred to as “Bureau” and “Institute” such as Bureau for Public Enterprises and Code of Conduct Bureau to name a few.
Learned counsel for respondent further stated that it is a cardinal principle of our jurisprudence that there should be an end to arguments. That one wonders what other opportunity the appellant needed or was at all desirable on an issue that he had raised and argued. That this is an attempt at technical justice, and equity will frown at such an exercise. That the trial court did not suo motu raise any legal and factual issue. He referred to page 24 of the record of proceedings which has the arguments of the appellant at the court below.
Learned counsel said the appellant had invited the court to examine particularly the provisions of section 30 (1)(a)-(d) and 30(2)(a)-(d) vis-a-vis the exhibit on pages 9, 11 of the records. That it is a settled principle of law that issues before a court are determined by the pleadings and the evidence led by the parties. He cited the cases of: Akinfolarin v. Akinnola (1994) 3 NWLR (Pt.335) 659 at 680; Bamgboye v. Olanrewaju (1991) 4 NWLR (Pt. 184) 132 at 144; P.I. & P.D.C. v. Ebhota (2001) 7 WRN 146 at 160, (2001) 4 NWLR (Pt. 704) 495.
Learned counsel submitted that the learned trial Judge did not consider extraneous facts in reaching the judgment. That there is nothing in the ruling in that regard that would warrant the Appeal Court’s interference with the judgment of the trial court for the following reasons.
(i) No miscarriage of justice has been occasioned by the act, complained of by the appellant.
(ii) It is not every mistake or error in a judgment (assuming but not conceding there is any) that will result in an appeal being allowed.
Learned counsel for the respondent referred to the cases of Onojobi v. Olanipekun (1985) 2 SC 156 at 163; Azuetonma Ike v. Ugboaja (1993) 6 NWLR (Pt. 301) 539 at 556; Abimbola v. Abatan (2001) 7 WRN 43 at 55; (2001) 9 NWLR (Pt. 717) 66.
He further stated that it would be unreasonable for the court not to look at all the processes filed and arguments made before it in considering the plaintiff’s application.
Learned counsel for the respondent said assuming without conceding that the trial Judge raised any issue suo motu that it is not every slip in a judgment that will result in an appeal being allowed.
Such a slip must be material.
Learned counsel for the respondent said on the issue of the propriety of the three names submitted by the plaintiff for approval and registration by the defendant the appropriate applicable law for consideration are sections 673 and 674(1) of CAMA. That he, counsel adopted the reasoning of the learned trial Judge at pages 47 – 52 of the records. He said the three names were sought by the appellant to be approved under Part C as incorporated trustees. He cited the case of Chief James Egbuson v. Joseph Ikechiuku (1977) All NLR 174 at 203 per Udo Udoma, JSC.
Learned counsel said Incorporated Trustees are not companies but associations which come as allied matters to the CAMA. He cited the case of the Registered Trustees of the Bible Missionary Churchv. Rev. R. P. W Wilson (1991) 1 FHCNLR 151 at 161.
That the names do not in any way indicate or suggest that the three proposed names were to be registered as associations pursuant to section 673 CAMA for which trustees can be appointed. Also that appellant did not also indicate that the proposed names were to be registered as incorporated trustees pursuant to section 674(1) CAMA.
Learned counsel for the respondent further said that the appellant exercised a discretion in approving names which are registrable under any part of the CAMA and that appellant did not challenge the exercise of that discretion of the respondent rather what he did was an application for the interpretation of the provisions of the CAMA.
In the appellant’s reply brief learned counsel for the appellant said because the lower court’s judgment did not pronounce on the issues canvassed by the respondents, the appellant could not have appealed on those issues and so respondent’s arguments go to no issue. He cited the case of Igbinoba v. Igbinoba (2003) 2 NWLR (Pt.803) 39. Jadesimi v. Egbe (2003) 10 NWLR (Pt. 827) 1, Udemba v. Morecab Fin (Nig.) Ltd. (2003) 1 NWLR (Pt. 800) 96; Nwankwo v. FRN (2003) 4 NWLR (Pt. 809) 1; Jatau v. Ahmed (2003) 4 NWLR (Pt. 811) 498.
Mr. Anyanwu learned counsel for the appellant in the reply brief said the respondent missed the point when they urged the court, to be persuaded by the reasonable man’s test. That “the reasonable man’s test” is a question of fact that requires evidence as the foundation for its application which evidence was absent at the trial. That, that being a new evidence sought to be introduced at the Court of Appeal, the respondent ought to have first sought leave to introduce same. He cited Nwangwu v. Ofoegbu (2003) 7 NWLR (Pt.820) 496, Lebile v. Registered Trustees C & S (2003) 2 NWLR (Pt. 804) 399.
Learned counsel for the appellant said even if the Court of Appeal considers the respondent’s argument the reasonable man would view the suggested corporate names as appropriate.
That is a summary of the arguments of counsel on either side on issue No.1. The main grouse here is whether or not the learned trial Judge raised an issue suo motu and based her decision upon it without granting to the appellant and respondent the right to be heard at which it can be concluded that a miscarriage of justice had occurred for which the judgment of the lower court should be upturned. In answer to this matter I shall refer to some decisions of this court and the Supreme Court for guidance. See Kuti v. Balogun (1978) 1 SC 53 per Eso, JSC at 60.
“…it is not open to a Court of Appeal to raise issues which the parties did not raise for themselves either at the trial or during the hearing of the appeal. There could be instances however when a point which has not been raised is material to the determination of the appeal. When a court of appeal feels inclined to raise such a point, parties must be given an opportunity to make their comments thereupon before the court takes a decision on the point. That, of course, is not the case in this appeal.”
It is well settled that a court should confine itself to issues raised by parties both in their pleadings in the trial court, their complaints raised in the grounds of appeal on which briefs are written and the issues they have raised in their briefs for the court to adjudicate upon and ought not to venture to raise new matters for the parties. The exception to this rule is where a matter of law or constitution going to the root of the parties cause itself arises and in such a case the parties must be afforded the opportunity of addressing the court on such an issue. See Bamgboye v. Olanrewaju (1991) 4 NWLR (Pt. 184) 132 per Belgore, JSC at 144 paras. E – G. Adeniji v. Adeniji (1972) 1 All NLR 298, Okebola v. Molake (1975) 12 SC 61; Graham v. Esumai (1984) 11 SC 123.
In the case of: Kankara v. C.O.P. (2002) 13 NWLR (Pt. 785) p. 596 per Mohammed, JCA:
“When a court raises a point suo-motu, parties to the suit must be given an opportunity to be heard on such a point, particularly the party that may suffer some disadvantage or disability as a result of such point raised suo-motu. This is to ensure not only that the parties are given a fair hearing but that Justice is seen to have been done in accordance with the principle of audi alteram partem rule. In the instant case, the trial court was in error in basing its judgment on an issue raised by it suo-motu without affording the parties, particularly the appellant, the opportunity of being heard. (Ajao v. Ashiru (1973) 11 SC 23; Kuti v. Balogun (1978) 1 SC 53; Ejowhomu v. Edok-Eter Mandilas Ltd. (1986) 5 NWLR (Pt. 39) 1: Adegoke v. Adibi (1992) 5 NWLR (Pt.242) 410 referred to) pages 607 – 608 paras. E – F.”
The decision of a court must be founded on grounds raised by or for the parties or either of them and in respect of which it has received argument from or on behalf of the litigants before it. The court is bound by the prayer of the plaintiff before it and it cannot raise an issue suo-motu and make it the basis of its decision. “Where an issue is not placed before the court it has no business whatsoever dealing with it. In the instant case, the trial court was in error in basing its judgment on an issue raised by it suo-motu without affording the parties the opportunity of being heard.” (Shitta-Bey v. F.P.S.C. (1981) 1 SC 40; Saude v. Abdullalhi (1989) 4 NWLR (Pt. 116) 387; Ebba v. Ogodo (1984) 1 SCNLR 372 referred to) page 608 paras. A – F; 614 – 615 paras. H – A per Omage, JCA.
An issue raised suo motu and in respect of which counsel on both sides should be invited to address the court must be an issue on which the trial court relied to come to a decision and which has tilted the scale of justice.
An irrelevant issue which has not affected the mind of the Judge in arriving at a decision cannot be said to lead to a miscarriage of justice. See Ike v. Ugboaja (1993) 6 NWLR (Pt.301) 539 at 556 paras. F – G per Olatawura, JSC. He referred to Oje v. Babalola (1991) 4 NWLR (Pt. 185) 267; Ogiamen v. Ogiamen (1967) NMLR 245/248; Okotie – Eboh v. Okotie-Eboh (1986) 1 SC 479. Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) 22 at 33 paras. C – D per Karibi- Whyte, JSC.
“It is the primary obligation of every court to hear and determine issues in controversy before it, and as presented to it by the litigants. The court cannot suo motu formulate a case for the parties. Hence, the principle of fair hearing not only demands but also dictates, that the parties, to a case must be heard on the case formulated and presented by them. It is only then that the concept of fair hearing will have a real meaning”
With the same spirit, Belgore JSC said at page 35 paras. G – H of Nwokoro v. Onuma (supra):
“it was a dangerous practice for the court to formulate issues for the parties. It is within the province of the parties to indicate the issues they wish the court to resolve and the court taking upon itself the formulation of issues for the parties may unwittingly be setting a destructive trap for itself to be accused not only of jumping into the fray but forcing issues down the parties throats.”
It is however to be noted that a court of law is entitled to raise any issue of law in relation to any matter before it but the parties to the case must be given the opportunity to address the court on the issue, before the court reaches any decision on the issue so raised. See Jatan v. Ahmed (2003) 4 NWLR (Pt. 811) 498 per Kalgo JSC at 508 – 509 paras H – C. Ibrahim v. J.S.C. (1998) 14 NWLR (Pt. 584) 1; Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129; Okonji v. Njokanma (1999) 14 NWLR (Pt. 638) 250. Akinfolarin v. Akinnola (1994) 3 NWLR (Pt. 335) 659.
Having stated and re-stated the fundamental nature of issues raised by parties and then issues which a court by itself raises, that is suo motu which necessitates the parties being made to address court on before the court can do anything with such self raised issues. I would like to go back to the affidavit in support of the originating summons before the lower court and refer to some relevant portions or paragraphs deposed to by Mr. Promise Onyegbula, litigation secretary in the appellant’s law firm of Mark Anthony & Co: Paras 4.
(b) That on the 4th September 2003, the plaintiff/applicant through his counsel applied to the defendants/respondents for the ‘name availability of ‘Institute of Corporate Governance” for incorporation under Part of Companies and Allied Matters Act, 1990 (hereinafter called CAMA).
(c) That the defendants/respondents through their agents unlawfully and without good cause rejected the name and in response, underlined the word “Institute” and marked the form Not Registrable”
(d) That on the 19th of September, 2003, after the rejection of the first name, plaintiff/applicant applied to the defendants/respondents for the ‘name availability” of “Bureau of Corporate Governance “for the purpose of incorporation under Part C of CAMA which the defendants/respondents again rejected and underlined the word “Bureau” and marked the form “Not Registrable’ under Part C.
(e) That the plaintiff on the 14th of October 2003, after the second rejection of the proposed names, applied for the ‘name availability” of ‘Institute of Competition Policy & Corporate Governance” which the defendants/respondents again rejected.
(h) That the plaintiff/applicant has concluded arrangement to collaborate with international Associations such as the United Nations, the ECOWAS and the Commonwealth in corporate governance and related matters which could only be achieved and the whole essence captured through the registration of a corporate entity whose name is reflective of the corporate objective of championing the emergence in Nigeria of optional corporate governance practices.
(m) That one of the plaintiffs/applicant’s counsel, Mr. Virgilus C. Akalazu informed me in Chambers and I verily believed him that when the defendants/respondents failed to respond to the aforesaid letters, he went to the defendants/respondent’s office where he traced the letters from the 1st defendant/respondent’s office to the Director (Incorporated Trustees) office to the desk of one Mr. Hillary at the ”Incorporated Trustees Department” and discovered that the said letters were not attended to with regard to the plaintiff/complaints. Instead, the said Mr. Hillary informed the plaintiff/applicant’s counsel that it was the corporate policy of the 2nd defendant/respondent to reject corporate names embodying ”Institute and/or Bureau.”
In counter-affidavit to the originating summons, Mukasa Onoja, Senior supervisor (legal) in the compliance department of the defendants averred inter alia:
Paras 4.
(a) On the 19th day of September, 2003 one Virgilius Chinagorom Akalazu applied for the reservation/confirmation of Bureau of Corporate Governance, a name sought to be registered as a society pursuant to Part C of the CAMA.
(b) The 2nd defendant rejected the said proposed name as not registrable as a society.
(c) On the 24th day of September, 2003 one V. C. Akalazu applied for the reservation/ confirmation of Institute of Corporate Governance, a name sought to be registered as a society pursuant to Part C of CAMA.
(d) That the 2nd defendant rejected the said proposed/name as not registrable as a society.
(e) On the 14th day of October 2003, one Akalazu Virglius Chinagorom applied for the reservation/confirmation of institute of Corporate Policy & Corporate Governance, a name to be registered as a society pursuant to Part C, CAMA.
(f) The 2nd defendant rejected the said proposed name as not registrable as society.
(g) In all the circumstances above enumerated, the applicant was duly notified severally of the rejection and the reason thereof
(h) The 2nd defendant duly considered the application of the plaintiff vis-a-vis the operational statute (that is the CAMA) before rejecting same”
The supporting affidavits of the originating summons and the counter-affidavit respectively have shown the positions of the parties clearly before the lower court.
It is a fundamental principle of natural justice that a person must be given an opportunity of a hearing, which hearing must be fair, before being deprived of his liberty or proprietory right see Lebile v. Reg. Trustees C & S (2003) 2 NWLR (Pt. 804) 399 at 424 paras D – H per Uwaifo, JSC.
The learned counsel for the respondents, Ekwo, Esq. in reply to the submissions of learned counsel for the appellants in the originating summons referred the words stated as non registrable by respondents to the Blacks Law Dictionary and stated the definitions thereof. The learned counsel for the appellant, Tony Anyanwu, Esq. ignored the Blacks Law Dictionary definition raised by the respondents counsel. It is those same definitions which the learned trial Judge referred to and adopted in her judgment. Therefore it is my view that the learned counsel for the appellant cannot at this stage accuse the learned trial Judge of raising an issue suo motu and basing her decision or judgment upon that self produced and determined issue in the absence of any contribution by the parties or any of them.
Furthermore, the supporting affidavit of the appellant showed that they were aware that the respondents had declared those names underlined not registrable. That in my view is sufficient.
Fair hearing is a concept of justice which should not be viewed from the perspective or prism of only one party. Therefore where a party to a suit has been accorded a reasonable opportunity of being heard and in the manner prescribed under the law, and for no satisfactory explanation it fails or neglects to do that which he ought to do, the party cannot thereafter be heard to complain of lack of fair hearing. The question is, is it fair and just to the other party or parties, as well as the court that a recalcitrant defaulting party should hold the court and the other party to ransom. Should the business of the court be dictated by the whims and caprices of any party. That should not be. See Kaduna iles v. Umar (1994) 1 NWLR (Pt. 319) 143 referred to and adopted by Salami, JCA in Ayalogu v. Agu (1998) 1 NWLR (Pt. 532) page 129 at 144 paras. E – G.; Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) 22 held by the Supreme Court.
It is a fundamental requirement of our adversary system of administration of justice that a party to the litigation before the court must be heard before the court can determine his civil rights or obligations before it. P. 31 para. E at page 35 para. C, Nnamani, JSC said:
“The right to be heard is so fundamental a principle of our adjudicatory process that it cannot be compromised on any ground”
The elements of fair hearing having been adhered to, all the opportunities available to the appellant being present I find it difficult to disturb the finding of the learned trial Judge. I hinge my view to some decided cases viz: Agunbiade v. State (1999) 4 NWLR (Pt.599) P. 391 per Tabai, JCA at pages 401 – 402 paras. H – A:
An appellate court may not disturb a finding or conclusion in a judgment simply because it would have come to a different finding or conclusion on the facts. An appellate court may however interfere with such findings or conclusions of a trial court if it is satisfied that:
(a) the finding is perverse and cannot reasonably be supported having regard to the evidence; or
(b) the finding is an inference from established facts, so that an appellate court is in as vantage a position as the trial court to draw its own conclusion; or
(c) the trial court has applied wrong principles of law.
In Ogar v. James (2001) 10 NWLR (Pt.722) 621 at 636 per Ekpe, JCA:
“Ordinarily a court of appeal does not interfere with the exercise of discretion by a lower court, and it seldom does, but if it appears that the result of the exercise of discretion by a lower court is to defeat the rights of the parties altogether, that is, if it will occasion injustice to one or the other of the two parties, then the appellate court will review the order made in order to ensure that there is no miscarriage of justice. In the instant case, the trial court did not exercise its discretion properly as by dismissing the appellant’s suit it had occasioned a grave injustice to the appellant (Enekebe v. Enekebe (1994) 1 All NLR 102; Haruna v. Ladeinde (1987) 4 NWLR (Pt. 67) 941; University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143 referred to). Where a trial Judge fails to consider the totality of the evidence before him before proceeding to make findings of fact, all appellate court can interfere with such findings and make proper inference from the evidence available.” See Kate Enterprises Ltd. v. Daewoo (Nig.) Ltd. (1985) 2 NWLR (Pt. 5) 116. A Supreme Court’s decision.”
A Court of Appeal will only interfere with a finding of fact in the court below when it is clear that the finding is perverse and not flowing from the facts relied upon or is not a proper exercise of his judicial discretion. See Ejowhomu v. Edok-Eter Ltd. (1986) 5 NWLR (Pt. 39) 1 a decision of the Supreme Court.
Anagolu, JSC stated at P. 34 of Ejowhomu (supra)
“… that the Appeal Court is not an avant-garde with powers of review of cases decided at the High Court, like an ombudsman, going about raking up, suo motu, decisions of that court, and looking for mistakes, supposedly made by that court, with or without applications made to it by a complainant. Such is not among the wide powers given to that court by section 16 of the Court of Appeal Act, 1976”
Having considered the facts before me and the decided cases or authorities relevant thereto I have no difficulty in holding on issue No. I that the learned trial Judge did not raise an issue or issues Suo motu which she considered and decided upon without hearing from the parties or any of them. In fact the issue of the registrability of the three names posted by the appellant arose from the supporting affidavit of the appellant himself in the originating summons and dealt with in the counter affidavit of the respondent. Furthermore, the respondents’ counsel adequately tackled them in his reply arguments in the originating summons. That the appellant’s counsel chose not to deal with issues that were germane to the matter on ground is entirely their choice and they have no one to blame. Therefore issue No.1 is answered in the negative and clearly does not even arise.
Issue 2:
Mr. Anyanwu learned counsel for the appellant on this issue submitted that the lower court erred in holding that the defendants/respondents were justified in their decision that the corporate names proposed by the plaintiff/appellant were unregistrable by virtue of the provisions of the Companies and Allied Matters Act, 1990.
He said the lower court had held that the respondents were justified in their decision because of the statutory provisions of sections 30(1)(c), 30(2)(a) and 674(1) & (2) and 677(1).
Learned counsel set out those provisions above cited for emphasis. He went on to submit that because the respondents failed to state their opinion as required by section 30 of CAMA, the lower court erred in its decision sustaining the respondents’ refusal to register the proposed corporate names. That there must be an affirmative opinion as a mere implication will not suffice. He cited the case of: Tell Communications Ltd. v. SSS (2000) HRLRA (Vol. 2) 104. A High Court of Lagos decision.
Learned counsel went on to say that the decision on whether the proposed names are offensive and/or against public policy will depend on the facts. That, the onus is on the respondents to lead credible evidence to show that the proposed names were either offensive against public policy, misleading and/or calculated to mislead. That the respondents failed to discharge their burden by not averring facts to support the lower court’s finding that they rejected the proposed names because they were either offensive, against public policy, misleading and/or calculated to mislead. He referred to the respondents counter-affidavit to the originating summons and quoted the relevant portions to his arguments.
Learned counsel further contended that the respondents failed to controvert the appellant’s averments, particularly on the proposed activities of the companies. That by law such uncontroverted depositions are deemed to be true and correct and indeed admitted. He cited the case of Nigerian Shippers’ Council v. United World Ltd. Inc. (2001) 7 NWLR (Pt. 713) 576 at 579 paras. E – F. Ogar v. James (2001) 10 NWLR (Pt. 722) 621 at 627.
Learned counsel for appellant went on to say that the lower court made findings that were not supported by the evidence of the case. That with the absence of credible evidence, the lower court erred in holding that the proposed names were in violation of Sections 30 (2) (a) of CAMA. He referred to, Nwankpu v. Ewulu (1995) 7 NWLR (Pt. 407) 269 at 289, Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24.
That because the respondents called no evidence on the reason for their decision the lower court erred in failing to accept the evidence duly averred in the affidavit supporting the originating summons.
Furthermore learned counsel submitted that the lower court relied on the dictionary definition of the distinct words contained in the proposed names as providing the rationale for the non-registration of those names. That the lower court’s exclusive reliance on the Blacks Law Dictionary provided a narrow view of the proposed corporate names and counsel put forward other contesting definitions from Webster’s Dictionary of English language.
Learned counsel further referred to “Institutional Investors and Corporate Monitoring: A Demand-side Perspective in a Comparative View” by, Jonathan R. Macey which published in Corporative Corporate Governance in the definition of Corporate Governance. That from the definitions of the constituent words, it is clear that the proposed corporate names were neither offensive nor against public policy. That it is uncertain how the proposed corporate names could have offended the public morals of Nigeria.
Learned counsel for appellant stated that the lower court held that the appellant employed the wrong procedure by filing an application for name reservation instead of simply applying for registration under section 674 of CAMA. He said in doing that the lower court misconceived the issues as the procedure undertaken by the appellant is proper and indeed provided for by section 32 of CAMA.
Learned counsel said while CAMA is divided into various parts for administrative/reference convenience, the entire statute operates as one coherent statute and so the appellation “Part C is not material in construing the provisions of CAMA. See Osondu v. FRN (2000) 12 NWLR (Pt. 682) 483 at 498.
He stated on that because neither section 30 nor 32 is ambiguous, the lower court erred in failing to literally apply those sections to the appellant’s proposed corporate names. That where the words used in a statute are clear and unambiguous the court is bound to give such words their ordinary and natural meaning. He cited Onyeanusi v. Miscellaneous Offences Tribunal (2002) 12 NWLR (Pt. 781) 227 at 250.
Learned counsel for appellant said the lower court erred in its discretionary application of some provisions of CAMA to Part C of CAMA. That while the lower court was comfortable in holding that the proposed names were unregistrable under Part C by virtue of section 30 of CAMA the same court simultaneously held that section 32 of CAMA was inapplicable to Part C of CAMA.
Also that the lower court misconstrued the appellant’s application for “name availability” when it assumed that it was an application under section 674 of CAMA. He quoted the said section 674.
Learned counsel went on to say that contrary to the lower court’s holding the respondents do not have an absolute discretion in the reservation of corporate names. That instead, the respondents are bound by their enabling statute – CAMA – and must comply with its statutory provisions. He cited Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599 at 623. Mr. Anyanwu of counsel said the lower court erred in holding that the respondent’s discretionary power under section 677 of CAMA is only subject to section 674 of CAMA. He said rather the respondents’ powers are subject to other provisions of CAMA especially sections 30 and 32. Those respondents have a responsibility to exercise their discretionary powers in a judicious manner by relying on credible and objective standards. He referred to Ebong v. Ikpe (2002) 17 NWLR (Pt. 797) 504 at 513; Nwokedi v. R.T.A Ltd. (2002) 6 NWLR (Pt.762) 181 at 188. That respondent’s refusal to reserve the proposed names for registration is tantamount to a violation of the respondents’ enabling statute – CAMA. That although by virtue of section 7(a) of CAMA, the respondents have a responsibility to administer the Act, which responsibility includes the regulation and supervision of the formation, incorporation, registration, management and winding-up of companies under or pursuant to CAMA, the respondents are still bound to perform such duties in accordance with the law – especially CAMA. He referred to P.H.M.B. v. Ejitagha (2000) 11 NWLR (Pt. 677) 154 at 169. Adeyanju v. WAEC (supra) 479 at 486.
Learned counsel stated further that while sections 30(1)(a)-(d) and 30 (2)(a)-(d) of CAMA detailed the corporate names prohibited or restricted under CAMA, and section 32 of CAMA provide for reservation of name, it is submitted that the proposed corporate names were neither prohibited nor restricted under section 30 of CAMA. This is because the appellant applied for “name reservation” in the proper form prescribed by the respondents, the respondents were under a public duty to reserve the names for the applicant. That it was therefore improper for the respondents to reject the names as not registrable having regard to the Act, especially as the applicant had fulfilled all the conditions precedent to the application.
He said that it is a well-established principle of interpretation of statute that the express mention of one thing is the exclusion of the other. That if the legislature intended to prohibit the names proposed for by the plaintiff, it would have expressly stated so.
Learned counsel for the appellant said that under Part C and indeed the entire CAMA, the respondent’s rejection of the appellant’s “name availability” as “not registrable” was improper and accordingly the lower court erred in upholding that decision, as the respondents’ had no reason to reject the appellant’s proposed corporate names. That the respondents are administrative bodies and are thus under a ministerial duty to perform a ministerial act imposed on it by CAMA with respect to the appellant’s application for “name availability”. He cited Fawehinmi v. I.G.P (2002) 7 NWLR (Pt. 767) 606 at 607.
Learned counsel concluded by asking this court to allow the appeal, reverse the decision of R. N. Ukeje, J. and determine the questions presented in the originating summons together with the reliefs sought therein.
The learned counsel for the respondents I. E. Ekwo, Esq. submitted that, if the proceedings are directed to challenging the decision of public nature such as the one in this case, an application for judicial review is the only permissible course, the court will not permit an action for declaration to be used as a means of circumventing the procedural restriction on the availability of judicial review. He referred to The Supreme Court Practice (White Book) 1993, Vol.1 para 53/1 – 14/7.
He stated that if the appellant did not take the requisite procedural steps to challenge the exercise of discretion of the 2nd respondent in the trial court, he cannot do so now except with leave of court. He said it was not true that the respondent did not controvert the averments of the appellant’s affidavit as the respondent had in argument at the trial contended that the affidavit of the appellant in support of the originating summons was not valid. That paragraphs 4 (a), (i), (o) and (p) were expressive of the opinion of the deponent; paragraph 4(c) and (d) were legal arguments and paragraph 8 was a prayer contrary to the stipulation of sections 86 and 87 of the Evidence Act, 1990. That against such, there can be no counter affidavit but rather an objection which respondent had raised at the lower court. That the duty of the court in such circumstance is to strike out the offending paragraphs or not attached any weight thereon. He cited Law and Practice Relating to Evidence in Nigeria, T. Akinola Aguda, 2nd Edition page 222 paragraph 12.21.
That there was no substance in the remaining paragraphs of the affidavit which the counter-affidavit did not specifically, materially and particularly controvert.
Learned counsel for the respondent re-emphasised that failure to give a reason as the appellant has contended in this case will not invalidate the exercise of the discretion of the respondent in rejecting the name. That it was not even part of the case of the appellant in the lower court and it should be discountenanced at this appeal stage.
It is important to explore what the apex court and this court had to say on the principles that would assist this court to answer the question raised in this second issue. Therefore I shall refer to some of the judicial authorities viz:- In Buhari v. Yusuf (2003) 14 NWLR (Pt.841) 446 per Belgore, JSC at page 507 paras. E – H.
“Court of Appeal adverted its mind more to time honoured principle of audi alteram partem and was of the view that with regard to the prayers of the petitioner the 3rd and 4th respondents ought to be heard. The principle is based on the very foundation of what is right and just, because nobody should be accused, tried and found liable without being heard. However, the principle ought not to be overstretched otherwise it will be flood gate for wild and frivolous joinders. It must be seen to be absolutely necessary to join a party if it will colour the resultant decision if party is not joined.”
Tobi JSC at pages 535 paras. D – E of the same case of Buhari v. Yusuf (supra) said:
“After all, the principles of fair hearing are most lively principles of our constitutional law which must be applied to live situations and not in vacuo or in vacuum.
An appellant who alleges that the trial court failed to consider relevant issues raised at the trial has the duty to prove that the failure of the trial court to so do was perverse and that it led to a miscarriage of justice. See Jadesimi v. Egbe (2003) 10 NWLR (Pt. 827) 1 at 38 – 39 paras. F – A.
The duty of an Appeal Court is to see whether the trial court committed some error in its decision which is perverse and once it comes to a decision that the decision is perverse, it must set it aside.
And an error is perverse when the gravity necessitates the reversal of the decision of the trial court. See Mogaji v. Odofin (1978) 4 SC 91; Queen v. Ogodo (1961) 2 SCNLR 366, Abisi v. Ekwealor (1993) 6 NWLR (Pt. 302) 643; Ebba v. Ogodo (1984) 1 SCNJ 372, (1984) 1 SCNLR 372 referred to and applied.
A public body or authority invested with statutory powers must act within the law and take care not to exceed or abuse its power. It must keep within the limits of the authority committed to it. It must act in good faith and reasonably. See Psychiatric Hospital Management Board v. Ejitagha (2000) 11 NWLR (Pt. 677) 154 at 163 paras. E – G.
Where a person, body or authority claims to have acted pursuant to power granted by a statute, such person, body or authority must justify the act, if challenged, by showing that the statute applied in the circumstances and that he or it was empowered to act under it. See Psychiatric Hospital Management Board v. Ejitagha (supra) at 169 paras. C -D.
That in my view is precisely what the respondents did and has adequately explained in their counter-affidavit apart from sending the applications back with the rejected names underlined and declared “not registrable”. That is sufficient compliance with the provisions of their empowering statute and they did not need to do more than they did.
The learned counsel for appellant had contended that the respondents had a ministerial function which they had not carried out. I would like to say “ministerial” has no fixed meaning but is sometimes used to describe any duty, the discharge of which does not involve any element of discretion or independent judgment (Shitta-Bey v. Fed. Public Service Commission (1981) 1 SC 40 referred to) 672 paras. F – G.
A “ministerial” duty is one regarding which nothing is left to discretion. A simple and definite duty imposed by law, and arising under conditions admitted or proved to exist (p. 672 paras. E – F).
A “ministerial” act is one which a public officer or agent is required to perform upon a given state of facts, in a prescribed legal authority and without regard to his own judgment or opinion concerning the propriety or impropriety of the act to be performed. Where a duty of an administrative officer in a particular situation is so plainly prescribed that it is free from doubt and equivalent to a positive command, it is so far “ministerial” that its performance may be compelled by mandamus. Fawehinmi v. I.G.P. (2002) 7 NWLR (Pt. 767) 606 at 671 paras. B – C per Uwaifo, JSC. I see no relevance of this matter of “ministerial act” in this action as the appropriate law in this case CAMA laws provided for the respondents what they should do faced with an application of the type sent in by appellant. The provisions guiding that duty are therein, therefore my humble opinion is that the respondents had a discretion subject to the provisions of CAMA and they carried that discretion out.
The duty of a court is to interpret the words the author of a document has used. Consequently, where in their ordinary meaning, the provision of a document are clear and unambiguous, effect should be given to such provisions. See Plateau Investment and Property Development Company Ltd. v. Philip Ebhota & Ors. (2001) 4 NWLR (Pt. 704) 495 at 518 para. C. City Engineering (Nig.) Ltd. v. Nigeria Airports Authority (1999) 11 NWLR (Pt.625) 76; A.-G., Bendel State v. A.-G., Fed. (1982) 3 NCLR 1 referred to and applied.
It will not be an overflogging to say that where a body is a creation of statute it must act in accordance with the law creating it. See Ondo State University v. Folayan (1994) 7 NWLR (Pt. 354) 1 at 36.
Therefore in interpreting a law or laws the courts should do so as they ought to be. See Onyeanusi v. Miscellaneous Offences Tribunal (2002) 12 NWLR (Pt. 781) 227 at 250 paras. C – D.
It is then clear that courts are enjoined to apply the literal interpretation of words where such words are used in a statute without any ambiguity. See Nigerian Shippers Council v. United World Ltd Inc. (2001) 7 NWLR (Pt. 713) 576 at 584 – 585 paras. H – A per Galadima, JCA.
For effect I shall restate some provisions of the Companies and Allied Matters Act (CAMA):
S. 32(1) The Commission may, on written application and on payment of the prescribed fee, reserve a name pending registration of a company or a change of name by a company.
S. 30(1): No company shall be registered under this Act by a name which:-
(c) In the opinion of the Commission is capable of misleading as to the nature or extent of its activities or is undesirable, offensive or otherwise contrary to public policy; or
30(2) Except with the consent of the Commission, no company shall be registered by a name which:-
(a) includes the word “Federal”, “National”, “Regional”, “State”, “Government”, or any other word which in the opinion of the commission suggests or is calculated to suggest that it enjoys the patronage of the Government of the Federation or the Government of a State in Nigeria, as the case may be, or any Ministry or Department of Government.
The learned counsel for the appellant had gone to great lengths to suggest that a miscarriage of justice had occurred for which this court should grant the reliefs he set out in the originating summons.
In the case of: Ebong v. Ikpe (2002) 17 NWLR (Pt. 797) 504 at 522 para. C.
- Miscarriage of justice means such a departure from the rules which permeate a judicial procedure as to make what happened not in the proper sense of the word a judicial procedure at all (Nnajiofor v. Ukonu (1986) 4 NWLR (Pt. 36) 505 referred to). Per Ekpe JCA.
It is not every mistake, error or irregularity committed by a trial court that automatically results in an appeal against the decision of the court being allowed.
“It is only when the error or irregularity is so substantial as to occasion a miscarriage of justice that an appellate court is bound to interfere. In the instant case, by striking out the processes filed by the appellant and entering judgment for the respondent, the procedure adopted by the trial court was substantially irregular and has occasioned a miscarriage of justice. The appellant has been denied the right of fair hearing as enshrined in section 36(1) of the 1999 Constitution and therefore, the Court of Appeal is bound to interfere with the irregular proceedings”
(Nkoko v. Akpata (2000) 7 NWLR (Pt 664) 225 referred to pp. 522 paras. A – B, 532 para. F per Ekpe, JCA in Ebong v. Ikpe (supra).
The matter of whether the learned trial Judge properly conducted the trial as she ought to do which was a matter of great contest by the counsel on either side.
An appellate court is in a good position as a trial court to evaluate evidence in its review of the findings of fact by a trial court where the finding by the trial court is based on documentary evidence and the controversy relating to same is limited to the number, complexity or contradiction or interpretation of the document and in cases where the finding is based on oral evidence, the controversy relates to an admission by the adversary or unchallenged piece of oral evidence. See Universal Insurance Company Ltd. v. Hammond (Nig.) Ltd. (1998) 9 NWLR (Pt. 565) 340 per Onalaja, JCA at 363 paras C – E. He referred to Ebba v. Ogodo (1984) 1 SCNLR 372; Badejo v. Federal Minister of Education (1996) 8 NWLR (Pt. 464) 15; University of Calabar v. Essien (1996) 10 NWLR (Pt. 477) 225; Ajewole v. Adetimo (1996) 2 NWLR (Pt.431) 391; Incar (Nig.) Plc. v. Bolex Ent. (Nig.) Ltd. (1996) 6 NWLR (Pt. 454) 318; Whyte v. Jack (1996) 2 NWLR (Pt. 431) 407; Audu v. Okeke (1998) 3 NWLR (Pt. 542) 373.
In the case of: Nwankpu v. Ewulu (1995) 7 NWLR (Pt.407) 269 per Iguh, JSC at 303 – 304 paras. F – B:
“It seems to me, however, that a trial Judge has a discretion on what issue or what evidence whether of the plaintiff or the defendant he proposes to review first before turning to the evidence of the other party … all that is required is that a trial Judge should carefully review and evaluate all the admissible evidence led by all the parties before the court.
Having given a dispassionate consideration to all such evidence and arrived at a judicious decision on the facts so considered, a Court of Appeal has no business to interfere with such a judgment, See Ogbero Egri v. Ededho Uperi (1973) 1 NMLR 22, Victor Woluchem & Ors. v. Simon Gudi & Ors. (1981) 5 SC 291 etc.”
It is the adjectival laws of a court that provide how courts must conduct trials. Where a party then alleges wrong conduct of trial or decisions reached as a result of these defaults, the rules of court that had been breached must be consulted to determine what the effect of non-compliance with the rule is. See Nwokedi v. Roxy Travels Agency Ltd. & Ors. (2002) 6 NWLR (Pt. 762) 181 at 200 paras. A-C.
Unless a statute which confers expressly or by necessary implication exclude the exercise of discretion, or the duty demanded is such that leaves no room for discretion, discretionary powers are implied and whenever appropriate, exercised for salutary ends. See Fawehinmi v. I.G.P. (2002) 7 NWLR (Pt. 767) 606 at 671 paras. B-C.
Judges naturally must differ in the procedure and manner in which they approach the consideration of the entire evidence in any given case. Some may prefer to begin with a consideration of the plaintiff’s case. Whichever course is adopted, what is necessary is that they must always bear in mind that the plaintiff has to succeed on a preponderance of evidence, on the strength of his own case not on the weakness of the defence. Sometimes however, the weakness of the case for the defence tends to strengthen the case for the plaintiff. The principal question, at the end of day, is what party’s case on a preponderance of credible evidence, has more weight. See per Ogundare, JSC at pp. 288 – 289 paras. G – B of Nwankpu v. Ewulu (supra).
I would posit here and now that the learned trial Judge was at liberty to conduct the trial in her own style with due regard to the issues at stake and the related laws including procedural ones. I see nothing in that process for which I would want to interfere with either her findings or decision since no miscarriage of justice occurred or there being even a suspicion that the evidence was not properly evaluated.
The learned counsel for the appellant in his quest to get his way had asked for so many reliefs including those, whose procedures are difficult to relate with the procedure he adopted or what he is in fact asking for. I mean precisely the matter of mandamus.
In the case of: Fawehinmi v. I.G.P. (2002) 7 NWLR (Pt. 767) 606 held by the Supreme Court:
- Mandamus is a high prerogative writ which lies to secure the performance of a public duty, in the performance of which the applicant therefore has sufficient legal interest. It gives a command that a duty or function of a public nature, which normally, though not necessarily, is imposed by statute but is neglected or refused to be done after due demand be done. P. 674 para. D per Uwaifo, JSC.
- Mandamus is issued from the High Court and directed to any person, corporation, or inferior court, requiring them to do some particular thing which pertains to their office and duty. In its application, it may be considered as confined to cases where relief is required in respect of the infringement of some public right or duty and where no effective relief can be obtained in the ordinary course of action. P. 694 paras. F – H per Mohammed, JSC.
- The prerogative writ of mandamus is issued or ordered by the courts to secure or enforce the performance of a public duty. It is pre-eminently a discretionary power and the court will decline to award it if other legal remedies are available and effective.
An applicant for the grant of the order must show that he has sufficient legal interest to protect and that he has demanded the performance of the public duty from those obliged to do so and was refused (pp. 697 – 698 paras. H – A). per Kalgo, JSC.
- A mandamus is a prerogative writ, to the aid of which the subject is entitled, upon a proper case previously shown, to the satisfaction of the court. And for there to be a proper case previously shown, an essential ingredient forming the background to the facts and circumstances imposing a public duty upon a person alleged to have failed to perform that duty, must be supported by evidence. The court will not order mandamus unless it is in the public interest p. 686 per Uwaifo, JSC.
Having stated my views on the remedy of mandamus which the appellant had unwittingly brought in without due process I shall refer to the case of Kankara v. COP (2002) 13 NWLR (Pt.785) 596.
It was held that the rules of court must prima facie be obeyed and the courts have inherent jurisdiction to ensure compliance with rules by litigants. The court can strike out any process not filed in accordance or in compliance with the relevant rules. In the instant case, the trial court was right in striking out the appellant’s case after realising that it ought not to have been brought by way of originating summons.
Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130. UBN Plc. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt. 421) 558 referred to.
The cases above cited are apt to the present situation and I would not hesitate in holding that the remedy of mandamus sought through this strange formula is thereby incompetent for non-compliance with the necessary rules of court.
In view of the foregoing I answer issue 2 positively as the respondents indeed acted rightly in rejecting the names put forward by the appellant for registration by declaring them non registrable. I see no reason not to agree and affirm the decision of the learned trial Judge. I must make the point that what I have seen from what transpired at the lower court and in this appeal is learned counsel for the appellant on an academic exploration and the quest to propound a hypothesis. These are not areas for our adjudication and it is therefore my conclusion that this appeal lacks merit in the extreme and I dismiss it. I affirm the decision of the lower court.
I award N 10,000.00 costs to the respondents.
Other Citations: (2005)LCN/1769(CA)
