Noga Hotels International S.a. V. Nicon Hotels Limited & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
CHJDI NWAOMA UWA, .J.C.A.
The appeal is against the judgment of the Federal High Court, Abuja (hereafter referred to as the trial Court) delivered on the 27th day of May 2004 in Suit No. FHC/ABJ/PET/1/2002.
The Suit was commenced by way of Petition by the appellant as Petitioner pursuant to Section 300 of the Companies and Allied Matters Act, 1990 dated 10th April, 2002 and filed on the 11th day of April 2002 against the Respondents. The Appellant claimed against the Respondents jointly and severally as follows:
“(1) A Declaration that the Board of Directors of the 1st Defendant has no power or authority to transfer the accounts of the 1st Defendant being run under the title and business name of NICON HILTON HOTEL with the 4th to the 9th Defendants to the 2nd Defendant.
(2) A Declaration that the transfer or purported transfer of the accounts referred to in paragraph thereof by the 1st Defendant to the 2nd Defendant is illegal, null and void of no effect whatsoever.
(3) A Declaration that the 3rd Defendant has no legal right authority or power to direct the transfer of any assets of the 1st Defendant including the operated account with the 5th to the 9th Defendants of the 1st Defendant to the 2nd Defendant
(4) A Declaration that the purported transfer or the transfer of the 1st Defendants accounts referred to in paragraph 1 hereof, to the 2nd defendant is an abuse of the process of court in view of the pending law suit, in particular Suit No: FHC/ABJ/CS/138/98.
(5) A Declaration that the transfer of the following asserts of the 1st Respondent to the 2nd Respondent which assets are the Nicon Hilton Hotel, Abuja Nicon Hiltons Hotels Staff Quarters at Karu, Nicon Hotels Limited GM/CEO Residence, Nicon Hotels Staff Housing Phase II, Karmo and Midway Inn Makurdi is illegal, unlawful, null and void and of no effect.
(6) A Declaration that the sale of offer for sale or attempt to sell the property of the 1st Defendant known as NICON HILTON HOTEL ABUJA is illegal, unconstitutional, null and void and of no effect whatsoever.
(7) An Order setting aside the transfer of the accounts of the 1st Defendants with the 4th to the 9th Defendants referred to in paragraph 1 hereof to the 2nd Defendant.
(8) An Order setting aside all other properties of the 1st Respondent transferred to the 2nd Respondent referred to in paragraph 5 hereof.
(9) An Order of Perpetual Injunction restraining its servants, agents or privies of the 1st Defendant from transferring to the 1st Defendants the accounts of the 1st Defendant with the 4th to 9th Defendants referred to in paragraph 1 hereof
(10) An Order of Perpetual Injunction restraining the 1st, 2nd and 3rd Defendants, all or any of them, their servants, privies or agents from selling or otherwise disposing of the property called NICON HILTON HOTEL, ABUJA or any interest therein or any of the assets of the 1st Defendant.”
The issue before the trial Court was whether the accounts and assets of NICON Hotels Limited, the 1st Respondent, were transferred to the Respondents on the directives of the 3rd Respondent, contrary to Article 82 of the Articles of Association of the Company. There is no dispute that the 1st Respondent was a joint venture between NICON Insurance corporation Plc, the 10th Respondent and the NOGA Hotels International S.A., the Petitioner/Appellant each owning 75% and 25% of the shares respectively.
While the 10th Respondent maintained that NICON Hotels Limited, formed with a share Capital of N25 million was incorporated as a management company with the sale purpose of managing the NICON Hilton Hotel, Abuja. The Hotel comprising of the lands, buildings and other assets, belonged to the 10th Respondent and was built on its land with the proceeds of foreign loan amounting to more than $300 million guaranteed by the Federal Government of Nigeria.
The Petitioner on his part contended that the 1st Respondent, NICON Hotels Limited was incorporated to own and manage and owns the Abuja NICON Hilton Hotel. Since it had paid its 25% shareholding allotted to it, it is therefore part owner (25%) of the Assets of the 1st Respondent including the Hotel buildings, i.e. the NICON Hilton Hotel Abuja.
The Petitioner Appellant had initiated an action in the Federal High Court in Lagos as Suit No. FHC/CS/1035/94, the Suit was later transferred to Abuja Division of the Federal High Court i.e. Suit No. FHC/ ABJ/CS/138/98, the action bordered on the ownership of the Abuja NICON Hilton Hotel as between the NICON Insurance Corporation Plc., the Federal Government of Nigeria (the owner of the NICON Insurance Corporation Plc.) and the NOGA Hotels International S.A., the present Petitioner/Appellant.
The Suit was dismissed for want of diligent prosecution, as at the time of the present proceedings, the appeal was still pending. When the 3rd Respondent, decided to privatize NIRMSCO Properties Limited (2nd Respondent in this Appeal). 51% shares of NIRMSCO was sold to a core investor. NIRMSCO Properties Limited is a wholly owned subsidiary of the NICON Insurance Corporation Plc., the 10th Respondent. NLRMSCO became the owner of NICON Hilton Hotel, Abuja, following a transfer of the assets to it by the 10th Respondent.
3rd and 10th Respondents contended that they in error, and mistaken assumption that NICON Hotels Limited was a wholly owned Subsidiary of the 10th Respondent and transferred the Hotel to the 1st Respondent. When it was remembered that 1st Respondent was owned jointly by the Petitioner and the 10th Respondent, the decision was reversed by a deed of transfer executed by the 1st Respondent in favour of the 2nd Respondent.
The trial Court held that the issue of ownership of the NICON HILTON HOTELS, ABUJA by the 1st Respondent is in contention between the parties and not what was before the trial Court, therefore the Court could not determine whether the parties were bound by Article 82 of the Articles of Association of the 1st Respondent as presented in the Petition. The trial Court held further that the issue of the ownership of NICON HILTON HOTEL, ABUJA could not be resolved in the Petition.
Further that the issue of ownership of the said Hotel must first be resolved before a Petition complaining about compliance with the Articles of Association of one of the contending parties and that the Petition could not be granted as the issue of ownership was yet to be determined in a sister case in the appellate Court.
Further that without the resolution of the matter dealing with the ownership of the hotel, no one could compel or subject any of the assets to the authority of the Article of Association of the 1st Respondent who is part of the contention for the ownership of the NICON HILTON HOTEL. ABUJA.
Dissatisfied with the judgment, the Appellant (then Petitioner) has now appealed to this Court. The Appellant set out eight grounds of appeal.
Out of the eight (8) grounds of Appeal, the learned Senior Counsel for the Appellant Professor S.A. Adesanya (SAN) formulated three (3) issues for determination of this Appeal in the Appellant’s brief filed on 19/7/05. The issues are:
“(1) Whether the doctrine of res judicata applies to the present case?
(2) if the doctrine of res judicata does not apply whether there is sufficient evidence from the records of the trial Court that the NICON HILTON HOTEL ABUJA is part of the business of the 1st Respondent (the joint venture) to which Article 82 of the Articles of Association applies?
(3) Whether the activities of the 1st Respondent cover ownership and management of hotel as contended by the appellant or it is restricted to managing the hotel as contended by the 3rd Respondent?”
The 1st and 2nd Respondents did not file any process by way of Respondents’ brief or any thing else.
The 3rd Respondent in his brief of argument filed on 24/4/06 deemed filed on 26/4/06 raised four issues for determination quite different from those formulated by the Appellant. The issues are:
“1. Whether the question of ownership of the NICON Hilton Hotel Abuja could he raised in a Petition (if this nature and resolved by the trial Court
- Whether the determination of the ownership of the NICON HILTON Hotel Abuja was an issue specifically before the lower Court in the Petition before it
- Whether the learned trial Judge was right in holding the issue of the ownership of the Hotel must first be resolved before considering if there was a beach of Article 82 of the Articles of Association of the 1st Respondent.
- Whether the determination of the ownership of the NICON Hilton Abuja could be made by the lower Court when in fact, according to the Petitioner/Appellant, that was the subject of another proceeding then on appeal before the Court of Appeal.”
The 4th Respondent did not file any process.
The 5th Respondent’s brief deemed filed on 26/4/06 adopted the four (4) issues formulated by the 3rd Respondent in his brief of argument.
The 6th – 9th Respondents did not file any process.
The 10th Respondent’s brief filed on 6/6/06 was deemed filed on 7/11/06 formulated a sale issue for determination. That is: “Whether the finding by the trial court that the ownership of NICON HILTON HOTEL Abuja could not be determined in these proceedings when, from the averments of the Petitioner/Appellant the issue is being litigated upon at the Appellant (sic) Court.” When the appeal was argued, 1st – 2nd, 4th, 6th – 9th, Respondents were absent from Court and were not represented by Counsel even though there was proof of service of the processes. 1st Respondent was served on 2/11/06, 2nd, 4th, 6th – 9th Respondents were served on 1/11/06.
On 7/11/06 before this appeal was heard the learned Senior Counsel Professor S.A. Adesanya (SAN) moved his motion filed on 15/5/06 that the appeal be heard and determined on the basis of the briefs of arguments filed in this Court as at the date of hearing of the appeal. All the Respondents were served with the motion papers. Learned Counsel to 3rd, 5th and 10th Respondents who were present in Court did not oppose the application. Relying on Order 6 Rule 10 of the Court of Appeal Rules the Appeal was heard.
Learned Senior Counsel Professor S.A. Adesanya (SAN) in arguing his appeal adopted his brief as well as his reply brief to the 3rd Respondent’s brief of argument filed on 15/5/06 and abandoned grounds 4 and 7 of the grounds of appeal from which no issues were formulated. These two grounds touch on ownership of the 1st Respondent.
Before going into resolution of the issues for determination, it is worthy of note that the 3rd Respondent formulated issues outside those of the Appellant, which the 5th Respondent fully adopted in paragraph 2 on Page 2 of his brief of argument. It is observed that there is no such provision in our rules, the issues arising out of the Respondent’s brief should be related to the issues arising out of the Appellant’s brief. The Appellant’s brief and issues having arisen from the grounds of appeal. See Order 6 Rule 4 of the Court of Appeal Rules, 2002.
It is trite that a Respondent may not formulate issues outside the grounds of appeal contained in the Appellant’s Notice of Appeal, in this case contained in Pages 337 – 346 of the printed records of Appeal.
Issues for determination must be based on and correlate with the grounds of appeal and should be an answer to the grounds of appeal. An issue may encompass one or more grounds of appeal, it is incompetent where the issues are not based on the grounds of appeal, they are irrelevant. Issues for determination in an appeal is akin to pleadings in the lower Court, hence adherence to the strict observance of the rules on formulating issues for determination. In the present case, the 3rd Respondent a fortiori the 5th Respondent, did not comply with the rules and practice of this Court. See the cases of Oyebamiji v. Fahiyi (2003) 12 NWLLR (Pt. 834) p. 271; Ademola v. Seven-Up Bottling Co. Plc. (2004) Pt. 874 8 NWLR p. 134; Olowosago v. Adebanjo (1988) 4 NWLR (Pt. 88).
The issues formulated by the 3rd Respondent dwelt on the resolution of the ownership of the NICON HILTON HOTEL Abuja and the mode the action should have been brought other than by petition in the trial Court.
Issue one as formulated by the 3rd Respondent earlier reproduced reads:
“1. Whether the question of ownership of the N1CON Hilton Hotel, Abuja could he raised, in a Petition of this nature or resolved by the trial Court.”
With a close look at the grounds of appeal, there is none challenging the decision of the trial Court that the claim could be brought by way of a Petition. The appellant (as petitioner) brought his action in the trial court by a petition and could not have made it part of his grounds of appeal in any case. When the objection was raised, the trial court held that the action could be brought by a petition. The 3rd Respondent should have filed a Cross Appeal or Respondents Notice challenging this holding. The purpose of an appeal being to look into grievances arising from the judgment, there was no such challenge. See Nsekwu v. Nsekwu (1989) 2 NWLLR (Pt. 104) 373, Edokpolo & Co. Ltd. v. Sem-edo Wine Ltd. (1989) 4 NWLR (Part 116) 473 also cited by the Appellant’s Counsel and Kweki v. Ebele (2005) 7 MJSC 125 cited and relied upon by the 3rd Respondent’s Counsel.
In the present case, the first issue of the 3rd Respondent was not based on any of the grounds of appeal filed by the appellant, it is therefore incompetent and liable to be struck out with all the arguments in its support, and I so hold. See Awuse v. Odili (Pt. 876) 8 NWLR P. 481; Odife v. Aniemeka (1992) 7 NWLR (Pt. 251) 25; Kalil v. Odili (1992) 5 NWLR (Pt. 240) 130; Ceekay Traders Ltd. v. General Motors Ltd. (1992) 2 NWLR (Pt. 222) 132; Onye v. lkema (1999) 4 NWLR (Pt. 598) 198.
In respect of issue two formulated by the 3rd Respondent,
“2. Whether the determination of the ownership of the NICON Hotel Abuja was an issue specifically before the lower Court in the Petition before it.”
This issue did not arise from the grounds of appeal and did not relate to any of the grounds of appeal of the appellant, it is therefore incompetent and liable to be discountenanced and struck out, along with all the arguments advanced in respect of issue two and I so hold. See Bassey v. Robertson (1999) 2 NWLR (Pt. 589) 61; Okeke v. Onuh (1999) 6 NWLR (Pt. 606) 175; Mudiaga
Erhueh v. INEC (1999) 12 NWLR (Pt. 630 NWLR (Pt. 608), 581.) 288; Igagu v. State (999) 6.
Issue three stated as follows:
“3. Whether the learned trial Judge was right in holding the issue of the ownership of the Hotel must first be resolved before considering if there was a breach of Article 82 of the Articles of Association of the 1st Respondent.”
The above issue did not form part of the grounds of appeal filed by the Appellant. If anything, the Appellant as Petitioner in the trial Court contended that the issue of ownership of the hotel was inextricably tied to Article 82 of the Articles of Association of the 1st Respondent. There is no Cross-appeal challenging the above holding of the trial Court. Since it is improper to formulate issues not related to any ground of appeal, such issue would and is discountenanced along with the argument in support and I so hold.
Similarly, issue four of the 3rd Respondent’s brief reads:
“4. Whether the determination of the ownership of the NICON HILTON Abuja could be made by the lower Court when in fact, according to the Petitioner/Appellant, that was the subject of another proceeding then on appeal before the Court of Appeal.”
The fourth issue deals with the ownership of NICON Hilton Hotel, Abuja. The issue of ownership was not looked into in the trial Court, rather the trial Court referred to pending matters concerning ownership in other courts, for which reason the Court did not go into the same area of ownership.
The issue that was before the Court of Appeal from Suit No. FHC/ABJ/CS/138/98 was an appeal on the order of the trial Court dismissing the Suit for want of diligent prosecution, the appeal was not on the issue of ownership of the NICON Hotel. In the trial that gave rise to the present appeal, the trial court did not also go into the issue of ownership of the Hotel. In any case grounds 4 and 7 of the grounds of appeal in this suit that touched on ownership were withdrawn in course of argument by the learned senior Counsel, therefore the 4th issue does not relate to any of the grounds of appeal.
The four issues formulated by the 3rd Respondent adopted by the 5th Respondent are not related to the grounds of appeal filed by the appellant, these grounds and arguments in their support are therefore discountenanced, the four issues and their corresponding arguments in the briefs of the respective respondents arc irrelevant and are hereby struck out.
Similarly, the sale issue formulated by the 10th Respondent earlier reproduced is not culled from the appellant’s grounds of appeal, it is therefore not relevant and is hereby struck out with the arguments in support.
This leaves the issues as formulated by the Appellant for the determination of this appeal. The issues were earlier reproduced. Learned Senior Counsel in arguing the first issue as to whether the doctrine or res judicata applies to the present case, submitted that the learned trial Judge erred in Law in dismissing the claims merely because the ownership of the NICON HILTON HOTEL was raised in the earlier case, Suit No. FHC/ABJ/CS/138/98 involving the present Appellant although the earlier suit was dismissed for want of prosecution. Further that claim of ownership in the above suit could not be under res judieatum to the present suit. Learned Senior Counsel highlighted the claims and the parties to the two suits. Learned SAN argued that in the present Suit No. FHC/ABJ/PET/1/2002 now on appeal as CA/A/143/04 in which the ten claims were earlier reproduced in this appeal, there was one Petitioner and ten Respondents. Whereas in the case of Suit No. FHC/ABJ/CS/138/98 (that gave rise to Appeal No. CA/A/126/M/2002) there were two claims, that is:
“A declaration that the purported take-over or deconsolidation of the assets notably the NICON/NOGA HILTON HOTELS of the 1st Defendant by the Defendant is illegal, null and void and of no effect or consequence whatsoever,
An order of perpetual injunction restraining the Defendants, their servants, agents and/or privies including anyone acting for each or any or all of them from taking over, deconsolidating or interfering with the assets and/or property of the 1st Defendant or with the 1st Defendant itself in any manner.”
In the above Suit there was one Plaintiff and six defendants. Learned Senior Counsel argued that the claim of ownership in the earlier suit could not be a bar under res judicatum in the present suit, that the claims and the parties are not the same, therefore that the doctrine arres judicata does not apply. Learned SAN gave the requirements or res judicata which included the existence of a final judgment determinative of the issues between the parties and conclusive on the merits and cited numerous cases in support – Carl Zeiss Stifling v. Reyner and Keeler Ltd. (No.2) (1967) 1 AC. 853; (1966) 2 All E.R. 536. Final Judgment does not include a matter discontinued, withdrawn, terminated by acceptance of a payment into Court or a dismissal for want of prosecution. See Owen v. Minoprio (1942) 1 KB 193; Pople v. Evans (1966) 2 All E.R. 743; Byrner v. Frere (1825) 2 Moll 157 and Magnus v. National Bank of Scotland Ltd. (1888) 58 L.T. 617 cited and relied upon by Appellant’s learned senior Counsel.
Finally, the learned Senior Counsel argued that estoppel per rem judicata does not apply and that the learned trial Judge wrongly applied res judicata when the earlier suit was dismissed for want of prosecution.
In agreement with the learned Senior Counsel’s argument in respect of the rules/requirements for the doctrine of res judicata, it is necessary to outline the conditions for application of estoppel per rem judicatum. For the plea of estoppel per rem judicatum the following must be established:
- The Parties or their privies are the same in both the previous and present proceedings;
- The claim or issue in dispute in both actions is the same;
- That the res or the subject matter of tile litigation in the two cases is the same;
- That the decision relied upon to support the plea of estoppel per rem judicatam is valid, subsisting and final; and
- That the Court that gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction.
If all the above constituent elements or requirements of the doctrine are not fully established, the plea of estoppel per rem judicatam can not be sustained. Sec Adone v. Ikebudu (Pt. 733) (2001) 14 NWLR P. 385; Oke v. Atoloye (1985) 2 NWLR (Pt. 9) 578; Yoye v. Olabode (1974) 1 All NLR (Pt. 2) P. 118; Alase v. Olori-Ilu (1965) NWLR 66; Fadiora v. Gbadebo (l978) 3 SC 219; Odjevwedje v. Echanokpe (1987) 1 NWLR (Pt. 52) 633.
From the claims of the parties earlier reproduced it is clear that the subject matter of the claims in the earlier Suit and the suit that led to this appeal, are not the same. While the present suit challenged the offer for sale or sale of the 1st Defendant, the claims in the present suit are extensive and relates to the bank accounts, and sale of 1st defendant to the public. The earlier suit challenged the deconsolidation of the assets of the 1st defendant by the defendants, for instance, by separating under the directive of the Federal Government of the assets of NICON Insurance Corporation from assets which do not belong to Insurance business which should be transferred.
The Judgment in the previous suit was not final, it could be varied, re-opened of set aside by the same Court or any Court of coordinate jurisdiction but, may be appealed against to a Court of higher jurisdiction as was done in that Suit, the suit having been dismissed for want of diligent prosecution. In the suit there was an application subsequently brought to set aside the order of dismissal and to relist the suit for hearing.
As rightly argued by the appellant’s learned senior counsel, the parties in the two suits are not the same. There are ten defendants in the present suit whereas there were six in the former, suit. The 3rd Respondent who raised the issue of estoppel was not one of the six defendants to the earlier suit. The Attorney-General of the Federation, the Minister of the Federal Capital Territory (FCT) and the Minister of Finance, parties in the earlier suit were not parties to the present suit, 2nd – 9th Respondents in the present suit were not parties in the earlier suit, the parties not being the same estoppel cannot apply to the present case, see Omokafe v. Ezckhamo (1993) 8 NWLR (Pt. 309) 58, and Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) P. 298.
For estoppel to operate, the requirements must be met. If one of the requirements has been breached or is missing estoppel cannot apply.
The same question must be for decision in both proceedings, that is, the question for decision in the current suit must have been decided in the earlier proceeding, the decision must be final and the parties must be the same, it does not matter if their capacities are reversed, i.e. plaintiff now becomes defendant the form in which either suit is brought is immaterial. See Ebba v. Ogodu (2000) 10 NWLR (Pt. 675) P. 387; Aro v. Fabolude (1983) 1 SCNLR 5; and Ezenwa v. Mazeli (15 WACA) 67; Maya v. Oshuntokun (Pt. 723) 11 NWLR P. 62.
For reasons stated above, estoppel cannot apply in the present case and I so hold. At this juncture I must state that the trial court declined going into the matter not based on the principle of res judicata but that the issues raised were pending in another court concerning ownership. The trial court held thus:
“……… If the ownership of the said Hotel is not resolved, there is no how the activities over the said Hotel can he burdened by the Articles of the 1st Respondent who is a contending party in the suit that is said to be before the court and which the parties, said an appeal has been filed. And in fact by the 2nd further affidavit dated 9th October 2002 and filed on the same day and annexed to the petition in this ease there is still the indication that that issue of ownership of the NICON HILTON HOTEL, ABUJA by the 1st Respondent is still in contention between these parties. If the forum for the resolution of the issue of ownership of the Hotel is not here, if the forum for the resolution of this issue of ownership of the Hotel is not in this matter and it is not specifically before this Court, there is no how this Court would in the circumstance determine the bindingness or otherwise of Article 82 of the Article of Association of the 1st Respondent as presented in this petition. It is in this wise that I agree with Mr. Mahmoud, SAN of Counsel for the 3rd Respondent that the issue of ownership of NICON HILTON HOTEL, ABUJA can not be resolved in this Petition. I believe and I hold that this issue of ownership of the said Hotel must first be resolved before a petition complaining about compliance with the Article of Association of one of the contending parties. The Petition invariably can not be granted because of the deficiency in sorting out the issue of ownership which is being litigated upon at the appellate Court from the averments of the petitioner. I hold in the circumstance that without a resolution of that case dealing with the ownership of the hotel no one can compel or subject any of these assets to the authority of the memo or Article of Association of the 1st Respondent who is in contention or the ownership of the NICON HILTON HOTEL, ABUJA. The petition has therefore failed and it is hereby dismissed. ”
The learned trial Judge held that the ownership of the asset known as NICON Hilton Hotel is a matter in contention between the parties and before another Court (Court of Appeal) and until that was resolved he could not decide if those assets could be burdened by Article 82 of the Articles of Association of the 1st Respondent. The learned trial Judge made it clear that his Court was not the appropriate forum for the resolution of the ownership of the Hotel and the issue of ownership was not before the Court. The decision of the trial court was not based on the principle of res judicata which was formulated and argued in the first issue of the appellant’s brief. From the above decision of the learned trial Judge, the issue of res judicata did not arise and is irrelevant and I so hold.
In respect of the Second issue, the learned Senior Counsel for the appellant posed the question that if the doctrine of res judicata does not apply whether there is enough evidence from the records of the trial court that the NICON HILTON HOTEL ABUJA is part of the business of the 1st Respondent to which Article 82 of the Articles of Association applies.
The learned Senior Counsel argued that the Hotel was built with an off-shore loan procured by the 10th Respondent, guaranteed by the Federal Government of Nigeria and the loan was in dollars and other currencies. Further that the 1st Respondent was responsible for payment of the foreign loans taken to finance the hotel and in fact the Federal Government demanded re-imbursement for the amount paid so far by the Federal Government on the loan.
The learned Senior Counsel referred to a letter of the Federal Government of Nigeria through its Ministry of Finance to that effect i.e. Reference No” F11159/S.49/220 of August 1996, and reference No. FS111/S.49/308 of 25th August 1996 restating the status of 1st Respondent’s indebtedness on the Euro-Dollar facility of $118 million. The learned Senior Counsel argued that the 1st Respondent is the owner responsible for and had been paying the foreign loans with which the hotel was built; and that the Federal Government confirmed that it is the 1st Respondent’s responsibility to repay the foreign loan.
Further that there is no dispute that the 1st Respondent is a joint venture between the appellant and the 10th Respondent. Learned Counsel urged this Court to make a finding that the Hotel belongs to the 1st Respondent who was not only responsible for repayment of the foreign loans but reimbursed the Federal Government for part-payment of the foreign loan, and to hold that the NICON HILTON HOTELS is part of the business of the 1st Respondent and that Article 82 of the Articles of Association have been breached. Further that by Article 82 only the Share holders either at an extra-ordinary meeting or at annual general meeting can take decisions affecting NICON HJLTON HOTEL business and the decision must be taken by holders of at least 80% of the paid up capital. That under the Articles it is irrelevant that the 10th Respondent intends to sell part only of its 75% share holding. The learned appellant’s Counsel contended that the trial court railed to apply the said Article 82 merely because he concluded wrongly that res judicata applied to the case.
Finally, that the shareholdings in the 1st Respondent are 25% and 75% by the Appellant and the 10th Respondent in its affidavit of 23rd May, 1997 admitted that the appellant is a part-owner of the 1st Respondent.
The learned Counsel for the Appellant argued that had the trial Court properly evaluated the evidence from the records of the trial Court, it would have reached the conclusion that the NICON Hilton Hotel Abuja is part of the business of the 1st Respondent to which Article 82 applied and the trial Court would have resolved the issue of ownership of the hotel in favour of the 1st appellant. With due respect to the learned Senior Counsel, I am of the opinion that the Petition before the trial Court was not about the dispute regarding the ownership of the hotel. A look at the claims or declarations sought in the Petition shows that none deals with the issue of ownership. The Petition was on the assumption of the ownership of the assets by the 1st Respondent (which was the reason for bringing the action by Petition). The petition is to enforce the articles of the association of the 1st Respondent by a member of the company in respect of assets which are taken to belong to it. The trial Court could not have evaluated evidence to resolve a matter not before it on an imaginary basis i.e. to assume the assets belonged to the Appellant in part.
It seems that the appellant is relying on the internal memo and letters that indicated that it was the responsibility of the 1st Respondent to pay the foreign loans used to build the hotel guaranteed by the Federal Government of Nigeria to have conferred title on the 1st Respondent.
In order to determine whether NICON HILTON Hotel Abuja is part of the 1st Respondent to which Article 82 of the Articles of Association applies, it is necessary to reproduce the said article at this stage.
Article 82 of the Memorandum of Association of NICON HOTELS LIMITED reads:
“Any decision of the Company in respect of any of the following matters shall require a resolution of the General Meeting carried by Shareholders having not less than eighty per cent of the paid up equity capital of the company.
(a) Sale or transfer of all or any part of the business of the company;
(b) Mortgage of the property of other assets of the company to raise funds for purpose other than for the day to day running or management of the company. ”
In interpreting Article 82 above, it is worthy of note that Where the words of a Statute are clear and unambiguous, they should be construed as to give effect to their natural and literal meaning. See Okumagba y. Egbe (1965) 1 NWLR 62; Berliet (Nig.) Ltd. v. Kachalla (1995) 9 NWLR (Pt. 420) 478; Ogbuanyinya y. Okuho (1979) 6-9 SC. 32.
On the other hand where the literal interpretation of the provision of a Statute will result in some ambiguity or injustice, the Court may seek internal aid within the body of the statute itself or external aid from statutes which are in pari materia in order to resolve the ambiguity or to avoid doing injustice in the matter. Obadara Y. President, Ibadan West District Grade ‘B’ Customary Court (1964) 1 All NLR 336.
In the present case there is no ambiguity to necessitate internal or external aid from other statutes to resolve any ambiguity. The words of Article 82 are clear and unambiguous. Article 82 would be and is applicable if it had been determined for sure in the suits before the courts that the hotel NICON Hilton Hotel Abuja is part of the business of the 1st Respondent. Neither in the earlier suit nor the present was it determined that the 1st Respondent owned or is part owner of the Hotel, then sub paragraph (a) of Article 82 would be applicable. Business of the company would be taken to mean a business owned by the company (1st Respondent). Similarly, other assets of the company in sub paragraph (b) means property or other assets of the Company, that is property and assets owned by the Company (1st Respondent).
There is insufficient evidence from the records of the trial court that the NICON Hilton Hotel Abuja is part of the business of the 1stRespondent to which Article 82 of the Articles of Association applies, as urged by the learned appellant’s Counsel.
Since it has not been determined that the NICON HILTON Hotel, Abuja is owned or partly owned by the 1st Respondent, Article 82 of the Articles of Association does not, and cannot apply. I therefore hold that NICON HILTON Hotel Abuja, is not part of the business of the 1st Respondent NICON HOTELS LIMITED, to which Article 82 applies. I resolve the Second issue in favour of the Respondents.
In respect of the third issue:
“Whether the activities of the 1st Respondent cover ownership and management of hotel as contended by the appellant or it is restricted to managing the hotel as contended by the 3rd Respondent?”
The learned Senior Counsel for the Appellant argued that the trial court erred in law in failing to resolve the competing claims of the Appellant that the object for which the 1st Respondent was incorporated included both ownership and management of the Hotel whereas the 3rd Respondent claimed it related only to the management of the hotel and cited: Karibo v. Grend (1992) 3 NWLR (Pt, 230) P. 426 and Tasha v. UBN Plc. (2002) 2 NWLR (755) 22.
Further that the objects for which a company is incorporated is to be ascertained from its Memorandum of Association and that the Memorandum of the 1st Respondent covers both ownership and the management of the Hotel. That the burden is on the 3rd Respondent to prove through documents or correspondences’ showing that notwithstanding the Memorandum of Association, the object does not include the ownership of Hotel.
The learned Senior Counsel argued further that this Court should invoke Section 16 of the Court of Appeal Act to make the order the trial Court should have made in deciding the issue based on the printed materials in the records of appeal and referred to the case of Amaira v. Alo (1995) 7 NWLR (Pt. 409) 623, that the order of Court that would flow from the finding that estoppel res judicata does not apply, is to hold that there is evidence that the Hotel is the property of the joint venture and that Article 82 of the Articles of Association prohibits a disposal without a resolution of the holders of the 80% of the equity. He urged this Court to grant the reliefs sought by the Appellant, in particular restrain the disposition of the Hotel in view of Article 82, and relied on the case of Imogiemhe v. Alokwe (1995) 7 NWLR (Pt. 409) 581, counsel emphasized that the object of the 1st Respondent includes the ownership and management of the hotel.
To resolve this issue it is necessary to examine closely the wordings of the relevant Articles of the 1st Respondent in order to determine whether the function of the 1st Respondent includes ownership as well as management of the company, this would also determine whether Article 82 is binding on the business of the company or not.
The principles governing interpretation of Statutes where the words are clear and unambiguous earlier discussed in this Judgment also apply here and the cases of Okumagba v. Egbe (supra), and Berliet (Nig.) Ltd. v. Kachalla (supra) are relevant.
Article 3(1),(2) of the Memorandum and Articles of Association of the 1st Respondent (NICON HOTELS LIMITED) reads:
“3. The objects for which the Company is established are:
(1) To run and manage an Hotel situate at tile Federal Capital Territory of Nigeria, Abuja which Hotel will bear the name “NICON NOGA HILTON HOTEL ABUJA” for as long as the Hotel is managed by NOGA HILTON INTERNATIONAL.
(2) To own, carryon or manage in any part of Nigeria the business of hotel, restaurant, cafe, tavern beer house, refreshment room, lodging housekeepers, licensed victuallers, wine, beer and Spirit merchant, brewers, malsters, distillers, importers and manufacturers of aerated, mineral and artificial waters and other drinks, purveyors and caterers. ”
Article 3(1) defines part of the functions of the 1st Respondent, which includes to run and manage an Hotel situate at the Federal Capital Territory of Nigeria, Abuja, as provided in Article 3(1), the literal meaning which reflects the object of the 1st Respondent is to run and manage a Hotel, which is situate at the Federal Capital Territory (FCT) of Nigeria, Abuja, the Hotel to bear the name “NICON NOGA HILTON HOTEL ABUJA”, for as long as the Hotel is managed by NOGA HILTON INTERNATIONAL. ‘Run and manage’ is clear and unambiguous and cannot be interpreted to mean or imply ‘ownership’. Article 3(1) is specific as to the object of the 1st Respondent’s function in respect of the Federal Capital Territory, (F.C.T.) Abuja, that is to run and manage an Hotel situate at the F.C.T. Abuja.
Article 3(2) defines part of the functions or object of 1st Respondent to include:
“to own, carryon or manage in any part of Nigeria the business of Hotel, restaurant, caf’E9 …………………….. “, the sub paragraph in its ordinary and literal meaning means that the 1st Respondent could own, carry on or manage in any part of Nigeria the business of Hotel, restaurant etc. This simply means it could own, carryon or manage in any part of Nigeria the business r of Hotel, this clearly excludes FCT, Abuja, inclusion offer, Abuja cannot be read into it. Ownership of a hotel business in FCT Abuja is not included and cannot be implied.
It is note worthy that where a Statute mentions specific things, those things not mentioned are not intended to be included. In the instant case Article 3(1) makes it clear that the Company is to run and manage an Hotel situate at the FCT, Abuja which would bear the name NICON NOGA HILTON HOTEL ABUJA as long as the hotel is managed by NOGA HILTON INTERNATIONAL. Article 3(2) provides that the company could own, carry on or manage in any part of Nigeria the business of hotel, FCT Abuja was not mentioned or specified in terms of ownership as provided in Subparagraph (1). In the circumstance, any function or object not mentioned in above is not included as one of the objects the company was set up to do. The objects of the company would provide what it was set up to do but would not enumerate or determine the assets or what is owned by the company. To ‘run and manage an Hotel’ should be given its ordinary meaning, in my humble view ‘ownership’ cannot be read into it. See Okumagba v. Egbe (supra); Ogbunyinva v. Okubo (Supra!; and Udo v. Orthopaedic Hospital Management Board (1993) 7 NWLR (Pt. 304) 139.
With Interpretation, things or words not mentioned in a Statute cannot be deemed implied, the mention of owning hotel business in any part of Nigeria does not include FCT Abuja, since to ‘run and manage’ an hotel in FCT Abuja had been provided for simpliciter. I am of the opinion that the activities of the 1st Respondent do not cover ownership and management of hotel as contended by the appellant, but restricted to managing the hotel as contended by the 3rd Respondent and I so hold. I resolve the third issue in favour of the Respondents.
In the final analysis, this appeal lacks merit and it is hereby dismissed. The Respondents are entitled to N10,000:00 costs each from the Appellant.
Pronouncement (Section 294 of the Constitution): Hon. Justice I.T. Muhammad JCA who participated in the appeal before his elevation to the Supreme Court, agreed at the Conference held on the appeal that the appeal be dismissed.
Other Citations: (2007)LCN/2203(CA)
