(2018) LPELR-45106(CA)

Transcription

1 TONIQUE OIL SERVICES LTD v. AMCON CITATION: In the Court of Appeal In the Lagos Judicial Division Holden at Lagos YARGATA BYENCHIT NIMPAR ON WEDNESDAY, 9TH MAY, 2018 Suit No: CA/L/555/2014 UGOCHUKWU ANTHONY OGAKWU Before Their Lordships: Justice, Court of Appeal Justice, Court of Appeal ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice, Court of Appeal TONIQUE OIL SERVICES LIMITED Between And ASSET MANAGEMENT CORPORATION OF NIGERIA - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. INTERPRETATION OF STATUTE - SECTION 52 OF THE ASSET MANAGEMENT CORPORATION OF NIGERIA ACT: Interpretation of Section 52 of the Asset Management Corporation of Nigeria Act as regards the provisions of the law governing winding up proceedings "This appeal falls within a very narrow compass. It centres round the construction of Section 52 of the Asset Management Corporation of Nigeria Act, and whether the lower Court correctly interpreted the provisions of the said Section in making the orders appealed against. The said Section 52 stipulates as follows: "52. (1) Where the Court gives a decision against a body corporate in a debt recovery action under this Act, requiring the debtor company to pay any sum to the Corporation and such sum is not liquidated or paid over to the Corporation within 90 days from the date of the order for payment, the Corporation may apply to the Court to issue a winding-up order against the debtor company. (2) Where a winding-up order is made, the Court may, on the application of the Corporation, appoint the official receiver or some other fit person to assume the office of a liquidator to wind-up the affairs of the debtor company. (3) Any liquidator appointed pursuant to this Act shall have all the powers of a liquidator under the Companies and Allied Matters Act and shall perform his duties in accordance with that Act. (4) An act, thing, directive or permission authorised or required to be done or given by the committee of inspection or by the creditors under the Companies and Allied Matters Act may be done or given by the Court on the application of the Liquidator. (5) Any winding-up order made against any debtor company under this Act shall be deemed to have been made under the Companies and Allied Matters Act and the provisions of the Companies and Allied Matters Act shall have effect with such modifications as are contained in this Act." The relevant stipulations for the purposes of this appeal are in Section 52 (1) and (2). We will shortly examine the said stipulations closely. But first, it is a settled principle of law that where words used in a statute are devoid of ambiguity, the said words must be given their ordinary and natural meaning. This is the literal rule of interpretation. Once the words are clear, precise and unambiguous, the task of interpretation hardly arises. The words are to be expounded in their natural grammatical and ordinary sense. It is only where reliance on the ordinary plain words will result in a meaning not intended by the provision and an absurdity that the Court in such a situation can adopt a construction that will give effect to the provision. See OBOMHENSE vs. ERHAHON (1993) LPELR (2191) 1 at 28, OVIAWE vs. INTERGRATED RUBBER PRODUCTS NIG LTD (1997) LPELR (2837) 1 at 20-21, UWAZURIKE vs. A-G FED (2007) LPELR (3448) 1 at 12 and SARAKI vs. FRN (2016) LPELR (40013) 1 at I have already set out the text of Section 52 of the Asset Management Corporation of Nigeria Act. The words used in the provision are clear, precise and devoid of any ambiguity. They are therefore to be given their plain, natural and ordinary grammatical meaning. Section 52 (1) deals with when the Respondent may apply to the Court for a winding-up order against a debtor company. From the stipulation, certain state of affairs must exist and certain conditions must have crystallized before the application can be made. Firstly, there has to be a Court decision; Secondly, the decision has to be against a body Corporate; Thirdly, the decision must have been given in a debt recovery action; Fourthly, the decision will require the debtor company to pay some money to the Respondent; Fifthly, the judgment sum is not paid or liquidated within 90 days of the date of the order for payment. All these factors and conditions check in this matter. The Consent Judgment in the matter was delivered on 6th March 2012 (See pages of the Main Records of Appeal). The decision is against the Appellant, a body corporate. From the text of the decision on page 10 of the Records it was in a debt recovery action arising from the indebtedness of the Appellant to Diamond Bank PLC and Skye Bank PLC. The said decision required the Appellant to pay the sum of N1.1billion to the Respondent, structured over a period of twenty-four months. An initial deposit of N110million was to be paid within 30 days of the decision. It is agreed on all sides that the Appellant has not and did not liquidate or pay over the judgment debt within 90 days. The Respondent's application for winding-up of the Appellant was filed on 9th November 2012, 248 days after the date of the order for payment. The Appellant contends that it could not pay the judgment debt within 90 days due to the antics of the Respondent which frustrated the efforts to pay the debt. I have insightfully considered the affidavit evidence before the lower Court and there is no material authenticating this allegation of any ploy by the Respondent to frustrate the payment of the debt. In any event, it is chop sense and logic to argue that the Respondent which has the statutory responsibility for the realization of debts owed to financial institutions would frustrate the payment of such a debt by a willing and able debtor after it has gone through the rigours of litigation to obtain judgment against the debtor. Howbeit, there is nothing in the stipulations of Section 52 (1) of the Asset Management Corporation of Nigeria Act which makes the conduct of the Respondent a factor which the Court is to take into consideration in an application for winding-up. The Appellant has not claimed that it tendered the judgment debt and the Respondent refused to accept the same. It is trite law that Courts do not have the jurisdiction to import words into the plain meaning of a statute and read into it what it does not say: BASINCO MOTORS LTD vs. WOERMANN LINE (2009) LPELR (756) 1 at 25-26, FAJIMOLU vs. UNILORIN (2007) 2 NWLR (PT 1017) 74, UNILORIN vs. AYODEJI (2014) LPELR (23821) 1 at 44, IGP vs. ANPP (2007) 18 NWLR (PT 1066) 457 at and INEC vs. APGA (2015) LPELR (40672) 1 at If the lawmaker had intended the conduct of the Respondent to be a factor to be taken into account, it would have so stated in the enactment. Again, the stipulations of Section 52 (2) of the Asset Management Corporation of Nigeria Act which deals with what the Court may do consequent upon the making of a winding-up order are clear, simple and unambiguous. They should be given their simple, natural and ordinary meaning. The said Section 52 (2) provides that the Court upon the making of the winding-up order, may on the application of the Respondent appoint the official receiver or some other fit person to assume the office of a liquidator to wind-up the affairs of the debtor company. The Respondent's application of 9th November 2012 (see pages of the Main Records of Appeal) included a prayer for a liquidator to be appointed. The requirement of the stipulation of Section 52 (2) of the Act, where the Court does not appoint the official receiver, is for the Court to appoint a fit person as liquidator. I iterate that it remains hornbook law that while the Courts have the powers to interpret the law, it has no licence to veer into the legislative arena or constitute itself a legislator by importing into a statute words that were not used by the legislature. The function and role of the Court remains jus dicere, not jus dare. See BASINCO MOTORS LTD vs. WOERMANN-LINE (supra), SETRACO vs. KPAJI (2017) LPELR (41560) 1 at 25-26, ELABANJO vs. DAWODU (2006) 15 NWLR (PT 1001) 76, FRN vs. DARIYE (2011) LPELR (4151) and ABUBAKAR vs. DANKWAMBO (2015) LPELR (25698) 1 at The legislation has not enacted for the neutrality and impartiality of the liquidator in Section 52 (2) of the Asset Management Corporation of Nigeria Act. It is not for the Court to embellish the clear and unambiguous provisions of the law. There is nothing in the affidavit evidence on the Records on which it can be contended that the person appointed as liquidator is not a fit person. By the provisions of Section 52 (3) of the Asset Management Corporation of Nigeria Act, the liquidator appointed shall have all the powers of a liquidator under the Companies and Allied Matters Act and perform his duties in accordance with the Companies and Allied Matters Act. This affords sufficient safeguard and checks on the liquidator. Specifically, Section 432 of the Companies and Allied Matters Act provides as follows: "432. (1) The Commission shall take cognizance of the conduct of liquidators of companies which are being wound up by the Court and if a liquidator does not faithfully perform his duties and duly observe all the requirement imposed on him by any enactment, or otherwise with respect to the performance of his duties, or if any complaint is made to the Commission by any creditor or contributory in regard thereto, the Commission shall inquire into the matter, and may take such action thereon as it thinks fit, including the direction of a local investigation of the books and vouchers of the liquidator. (2) The Commission may at any time require the liquidator of a company being wound up by the Court to answer any inquiry in relation to any winding-up in which he is engaged and if the Commission thinks fit, it may apply to the Court to examine the liquidator or any other person on oath concerning the winding up." Inherent in the provisions of the law are the control of the liquidator to check any excesses or want of neutrality or impartiality. In a coda, the net effect of all that has been said thus far is that the decision of the lower Court making the order for winding-up of the Appellant and appointing a liquidator is the correct decision. It is hereby affirmed. This sounds the death knell for this appeal for being unmeritorious. The appeal accordingly fails and it is hereby dismissed. The Respondent is awarded the sum of N100, as costs of this appeal."per OGAKWU, J.C.A. (Pp. 5-14, Paras. E-A) - read in context 2. INTERPRETATION OF STATUTE - RULES OF INTERPRETATION OF STATUTE: Guiding principles in interpretation of statutes "This appeal raises the issue of interpretation of Section 52 of the Asset Management Corporation of Nigeria Act, 2010 and I am in agreement with my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA that the lower Court rightly applied the literal rule of interpretation in arriving at the conclusion that the Appellant be wound up. The plain and literal interpretation of a statute will apply where the words of a statute are plain, clear and unambiguous as in this instant appeal. See the case of ABEGUNDE v ONDO STATE HOUSE OF ASSEMBLY & ORS (2015) LPELR (SC)." Per OBASEKI-ADEJUMO, J.C.A. (Pp , Paras. E-B) - read in context

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4 UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): On 6th March 2012, Consent Judgment was entered in SUIT NO. FHC/L/CS/118/2012: ASSET MANAGEMENT CORPORATION OF NIGERIA vs. TONIQUE OIL SERVICES LTD & ORS. This was pursuant to the Terms of Settlement executed by the parties and filed in Court. By the said Consent Judgment, the Respondent herein had judgment entered for it for the debt owed by the Appellant in respect of various credit facilities granted to the Appellant by Diamond Bank PLC and Skye Bank PLC. The Appellant failed to comply with the terms of the Consent Judgment, whereupon the Respondent filed an application on 9th November, 2012, praying, inter alia, for an order to wind-up the Appellant for its inability to pay the judgment sum within 90 days of the judgment and for an order to appoint a liquidator to wind up the affairs of the Appellant. The application was contested and in a Ruling delivered on 11th April 2014, the Federal High Court, Coram: M. B. Idris, J., granted the application in part and made an order for the winding up of the Appellant and 1

5 appointed a liquidator to wind-up the affairs of the Appellant. The Appellant was dissatisfied with the decision of the lower Court and appealed against the same. The Notice of Appeal is at pages of the Main Records of Appeal, while the Ruling of the lower Court is at pages 1-39 of the Additional Records of Appeal. The Records of Appeal having been compiled and transmitted, the parties filed and exchanged briefs of argument. The Appellants Brief was filed on 3rd October 2014 while the Respondents Brief was filed on 20th November Both Briefs were deemed as properly filed on 7th March The Appellant distilled two issues for determination and the said issues were adopted by the Respondent. The issues are: 1. Whether the Court ought to have considered the circumstances of the case and the conduct of the Respondent before granting the order winding up the Appellant. 2. Whether the factors to be considered before appointing a Liquidator were established before Mr. Omokide Kamilu was appointed a Liquidator. 2

6 At the hearing of the appeal, the learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the appeal. The issues formulated for determination are apt and flow directly from the complaints in the grounds of appeal. I will therefore proceed to consider the submissions of learned counsel on the said issues and resolve the appeal. SUBMISSIONS OF LEARNED COUNSEL The Appellant submits that it was unable to pay the judgment debt within 90 days due to the antics of the Respondent which frustrated every move to pay the debt. It was posited that the Respondent acted in bad faith so as to keep the Appellant perpetually indebted so that it can take over the assets of the Appellant. It was maintained that if the lower Court had considered the circumstances surrounding the inability of the Appellant to pay the judgment debt as deposed in the affidavits and submissions of counsel, it would have come to a different conclusion. The Appellant contends that a liquidator is an officer of Court and that the liquidator should be neutral and impartial. It was stated that a Court must take this into 3

7 consideration when appointing a fit and proper person as liquidator. It was opined that there was nothing before the Court to show that the person appointed as liquidator is a fit and proper person and that the person appointed as liquidator, who is an employee of the Respondent, is definitely not neutral and impartial. It was asserted that the factors that need to be established before a person is appointed a liquidator were not before the lower Court. The quiddity of the Respondent s submission is that the materials in the affidavits it placed before the lower Court were sufficient to justify the grant of the orders sought pursuant to the provisions of Section 52 of the Asset Management Corporation of Nigeria Act, The purpose for appointing a liquidator for a company as set out in NDIC vs. OBENDE (2001) 5 NWLR (PT 705) 184 at 189 was referred to and it was stated that the liquidator in a winding up by the Court had statutory powers under Section 425 of the Companies and Allied Matters Act. The Respondent maintained that it did not frustrate the payment of the judgment debt by the Appellant and that it 4

8 waited until eight months after the judgment before applying for the winding up of the Appellant, showing that there was no bad faith on its part and that none was disclosed in the evidence. It was posited that the address of counsel, no matter how brilliant, cannot take the place of evidence. The cases of NIGER CONSTRUCTION vs. OKUGBENI (1987) 4 NWLR (PT 67) 787, OBODO vs. OLOMU (1987) 3 NWLR (PT 59) 111 and OLANIYAN vs. ADENIYI (2007) 3 NWLR (PT 1020) 1 at 23 among other cases were referred to. The Respondent contended that there is no law placing a burden on the Court in a matter to ascertain the neutrality of a person to be appointed a liquidator of a company; that the stipulation in Section 52 (2) of the Asset Management Corporation of Nigeria Act is for a fit person to be appointed. RESOLUTION This appeal falls within a very narrow compass. It centres round the construction of Section 52 of the Asset Management Corporation of Nigeria Act, and whether the lower Court correctly interpreted the provisions of the said Section in making the orders appealed against. The said Section 52 stipulates as follows: 5

9 52. (1) Where the Court gives a decision against a body corporate in a debt recovery action under this Act, requiring the debtor company to pay any sum to the Corporation and such sum is not liquidated or paid over to the Corporation within 90 days from the date of the order for payment, the Corporation may apply to the Court to issue a winding-up order against the debtor company. (2) Where a winding-up order is made, the Court may, on the application of the Corporation, appoint the official receiver or some other fit person to assume the office of a liquidator to wind-up the affairs of the debtor company. (3) Any liquidator appointed pursuant to this Act shall have all the powers of a liquidator under the Companies and Allied Matters Act and shall perform his duties in accordance with that Act. (4) An act, thing, directive or permission authorised or required to be done or given by the committee of inspection or by the creditors under the Companies and Allied Matters Act may be done or given by the Court on the application of the Liquidator. (5) Any winding-up order made against any debtor company under this Act shall be deemed to have been made under the Companies and Allied 6

10 Matters Act and the provisions of the Companies and Allied Matters Act shall have effect with such modifications as are contained in this Act. The relevant stipulations for the purposes of this appeal are in Section 52 (1) and (2). We will shortly examine the said stipulations closely. But first, it is a settled principle of law that where words used in a statute are devoid of ambiguity, the said words must be given their ordinary and natural meaning. This is the literal rule of interpretation. Once the words are clear, precise and unambiguous, the task of interpretation hardly arises. The words are to be expounded in their natural grammatical and ordinary sense. It is only where reliance on the ordinary plain words will result in a meaning not intended by the provision and an absurdity that the Court in such a situation can adopt a construction that will give effect to the provision. See OBOMHENSE vs. ERHAHON (1993) LPELR (2191) 1 at 28, OVIAWE vs. INTERGRATED RUBBER PRODUCTS NIG LTD (1997) LPELR (2837) 1 at 20-21, UWAZURIKE vs. A-G FED (2007) LPELR (3448) 1 at 12 and SARAKI vs. FRN (2016) LPELR (40013) 1 at

11 I have already set out the text of Section 52 of the Asset Management Corporation of Nigeria Act. The words used in the provision are clear, precise and devoid of any ambiguity. They are therefore to be given their plain, natural and ordinary grammatical meaning. Section 52 (1) deals with when the Respondent may apply to the Court for a winding-up order against a debtor company. From the stipulation, certain state of affairs must exist and certain conditions must have crystallized before the application can be made. Firstly, there has to be a Court decision; Secondly, the decision has to be against a body Corporate; Thirdly, the decision must have been given in a debt recovery action; Fourthly, the decision will require the debtor company to pay some money to the Respondent; Fifthly, the judgment sum is not paid or liquidated within 90 days of the date of the order for payment. All these factors and conditions check in this matter. The Consent Judgment in the matter was delivered on 6th March 2012 (See pages of the Main Records of Appeal). 8

12 The decision is against the Appellant, a body corporate. From the text of the decision on page 10 of the Records it was in a debt recovery action arising from the indebtedness of the Appellant to Diamond Bank PLC and Skye Bank PLC. The said decision required the Appellant to pay the sum of N1.1billion to the Respondent, structured over a period of twenty-four months. An initial deposit of N110million was to be paid within 30 days of the decision. It is agreed on all sides that the Appellant has not and did not liquidate or pay over the judgment debt within 90 days. The Respondent s application for winding-up of the Appellant was filed on 9th November 2012, 248 days after the date of the order for payment. The Appellant contends that it could not pay the judgment debt within 90 days due to the antics of the Respondent which frustrated the efforts to pay the debt. I have insightfully considered the affidavit evidence before the lower Court and there is no material authenticating this allegation of any ploy by the Respondent to frustrate the payment of the debt. In any event, it is chop sense and logic to argue that the Respondent which has the statutory 9

13 responsibility for the realization of debts owed to financial institutions would frustrate the payment of such a debt by a willing and able debtor after it has gone through the rigours of litigation to obtain judgment against the debtor. Howbeit, there is nothing in the stipulations of Section 52 (1) of the Asset Management Corporation of Nigeria Act which makes the conduct of the Respondent a factor which the Court is to take into consideration in an application for winding-up. The Appellant has not claimed that it tendered the judgment debt and the Respondent refused to accept the same. It is trite law that Courts do not have the jurisdiction to import words into the plain meaning of a statute and read into it what it does not say: BASINCO MOTORS LTD vs. WOERMANN LINE (2009) LPELR (756) 1 at 25-26, FAJIMOLU vs. UNILORIN (2007) 2 NWLR (PT 1017) 74, UNILORIN vs. AYODEJI (2014) LPELR (23821) 1 at 44, IGP vs. ANPP (2007) 18 NWLR (PT 1066) 457 at and INEC vs. APGA (2015) LPELR (40672) 1 at If the lawmaker had intended the conduct of the Respondent to be a factor to be taken into account, it would have so stated in the enactment. 10

14 Again, the stipulations of Section 52 (2) of the Asset Management Corporation of Nigeria Act which deals with what the Court may do consequent upon the making of a winding-up order are clear, simple and unambiguous. They should be given their simple, natural and ordinary meaning. The said Section 52 (2) provides that the Court upon the making of the winding-up order, may on the application of the Respondent appoint the official receiver or some other fit person to assume the office of a liquidator to wind-up the affairs of the debtor company. The Respondent s application of 9th November 2012 (see pages of the Main Records of Appeal) included a prayer for a liquidator to be appointed. The requirement of the stipulation of Section 52 (2) of the Act, where the Court does not appoint the official receiver, is for the Court to appoint a fit person as liquidator. I iterate that it remains hornbook law that while the Courts have the powers to interpret the law, it has no licence to veer into the legislative arena or constitute itself a legislator by importing into a statute words that were not used by the legislature. The function and role of the Court 11

15 remains jus dicere, not jus dare. See BASINCO MOTORS LTD vs. WOERMANN-LINE (supra), SETRACO vs. KPAJI (2017) LPELR (41560) 1 at 25-26, ELABANJO vs. DAWODU (2006) 15 NWLR (PT 1001) 76, FRN vs. DARIYE (2011) LPELR (4151) and ABUBAKAR vs. DANKWAMBO (2015) LPELR (25698) 1 at The legislation has not enacted for the neutrality and impartiality of the liquidator in Section 52 (2) of the Asset Management Corporation of Nigeria Act. It is not for the Court to embellish the clear and unambiguous provisions of the law. There is nothing in the affidavit evidence on the Records on which it can be contended that the person appointed as liquidator is not a fit person. By the provisions of Section 52 (3) of the Asset Management Corporation of Nigeria Act, the liquidator appointed shall have all the powers of a liquidator under the Companies and Allied Matters Act and perform his duties in accordance with the Companies and Allied Matters Act. This affords sufficient safeguard and checks on the liquidator. Specifically, Section 432 of the Companies and Allied Matters Act provides as follows: 432. (1) The Commission shall take cognizance of the 12

16 conduct of liquidators of companies which are being wound up by the Court and if a liquidator does not faithfully perform his duties and duly observe all the requirement imposed on him by any enactment, or otherwise with respect to the performance of his duties, or if any complaint is made to the Commission by any creditor or contributory in regard thereto, the Commission shall inquire into the matter, and may take such action thereon as it thinks fit, including the direction of a local investigation of the books and vouchers of the liquidator. (2) The Commission may at any time require the liquidator of a company being wound up by the Court to answer any inquiry in relation to any winding-up in which he is engaged and if the Commission thinks fit, it may apply to the Court to examine the liquidator or any other person on oath concerning the winding up. Inherent in the provisions of the law are the control of the liquidator to check any excesses or want of neutrality or impartiality. In a coda, the net effect of all that has been said thus far is that the decision of the lower Court making the order for winding-up of the Appellant and appointing a liquidator is 13

17 the correct decision. It is hereby affirmed. This sounds the death knell for this appeal for being unmeritorious. The appeal accordingly fails and it is hereby dismissed. The Respondent is awarded the sum of N100, as costs of this appeal. YARGATA BYENCHIT NIMPAR, J.C.A.: My learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA gave me the opportunity of reading in advance the judgment just delivered. I agree with the reasoning and conclusion arrived in the lead judgment. I have nothing more to add. I too dismiss the appeal and abide by the consequential orders made in the lead judgment. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: This appeal raises the issue of interpretation of Section 52 of the Asset Management Corporation of Nigeria Act, 2010 and I am in agreement with my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA that the lower Court rightly applied the literal rule of interpretation in arriving at the conclusion that the Appellant be wound up. 14

18 The plain and literal interpretation of a statute will apply where the words of a statute are plain, clear and unambiguous as in this instant appeal. See the case of ABEGUNDE v ONDO STATE HOUSE OF ASSEMBLY & ORS (2015) LPELR (SC). I therefore have no hesitation in dismissing this appeal. I also abide by the order as to costs and all other consequential orders in the leading judgment. 15

19 Appearances: Muyiwa Okanlawon, Esq. For Appellant(s) J. O. Shaba, Esq. (with P. O. Goungo, Esq.) For Respondent(s)