A-G Federation v. Ijewere (1986)

[1986] 4 .
A.-G., Federation v. Ijewere
659

1.
ATTORNEY-GENERAL OF THE FEDERATION

2.
G. CAPPA LIMITED

V.

EMMANUEL I. IJEWERE

COURT OF APPEAL

(LAGOS DIVISION)

CA/L/206/85

ADENEKAN ADEMOLA, J.C.A. (Presided and Read the Lead Judgment)

PHILIP NNAEMEKA-AGU, J.C.A.

OWOLABI KOLAWOLE, J.C.A.

TUESDAY, 15TH JUNE, 1986

ACTION – Declaratory – Discretionary power of Court.

COMPANY LAW – Shares – Ownership of- Wrongly transferred – Liability of Company to pay dividends and bonus to rightful owner

COURTS – Jurisdiction of – Forfeiture Order – Asset of wrong person forfeited – Competence of Court to entertain action.

FORFEITURE OF ASSETS – Asset of wrong person forfeited – Whether jurisdiction of Court ousted.

FORFEITURE OF ASSETS – ‘Other persons’ – Property of ‘other persons not investigated – Propriety of forfeiture order.

INTERPRETATION OF STATUTES – Principles governing.

JURISDICTION – Forfeiture Order-Asset of wrong person forfeited – Competence of Court to entertain action.

Issues:

1.
Whether in view of the evidence before the court could it be said that there was a dispute between G. Cappa and Emmanael Ijewere?

2.
Could it be said that G. Cappa had done all that was reasonable of it in the circumstances to be absolved of the responsibility of paying dividends to the respondents on his shares in the company?

660
.
4 August 1986

3.
Could it be said that the respondent had been lawfully divested of his shares in the company by the Forteiture Order of the Federal Government?

Facts:

The respondent in 1975 bought 40,000 shares from the 2nd defendant company, G. Cappa Ltd. and was issued with a share certificate.

In 1977, when he did not receive his dividend and bonus, he made inquiries and was told that a forfeiture order had been made against his shares. He later saw in the Gazette that the forfeiture order was in respect of the shares of one Mr. F. A. Ijewere, whereas he was E. I. Ijewere. He asserted that he was not a public officer nor was his asset ever investigated. He therefore commenced an action against the Federal Military Government and G. Cappa Ltd. for a declaration that he was still the owner of the said shares and for payment to him of the dividends and bonus on them.

The company did not deny the ownership of the shares but said that they had delivered the shares to the Government and the dividends as well, and that for the future it would pay to anyone the court should direct.

The Federal Government conceded that it was the asset of F. A. Ijewere that was forfeited and not that of the plaintiff, but that the court had no jurisdiction over the matter and referred to section 12 of the Investigation of Assets (Public Officers and other Persons) Decree 1978 for support.

The learned trial Judge however granted the plaintiff the declarations sought.

The two defendants thereupon appealed to the Court of Appeal. At the Court of Appeal, 2nd appellant contended inter alia that no declaration should be made against her and that she should not have been made a party to the action as she would pay dividends and bonus in future to whom the court so adjudged. At the same time however she resisted the request to pay past dividends to the respondent, because they had been paid to the Federal Government, and hence she was relieved of all liabilities.

Held:

1.
The construction to be placed upon the provisions of the Investigation of Assets (Public Officers and Other Persons) Decree 1978 is against the taking of another man’s property who has not been the subject of an inquiry under the Decree.

2.
The power of the court to make binding declarations of right is a discretionary power. The declaratory jurisdiction of a court such as the Federal High Court is virtually unlimited.

3.
In the circumstances of the case the 2nd appellant had done enough to warrant the grant of the relief claimed by the respondent against her.

4.
The general rule is that all persons who appear to have a real interest in objecting to the grant of declaration should be made defendants.

5.
The 2nd appellant has opposed the payment of dividends to the respondent, hence she has an interest in the matter.

6.
Where dividend is declared and becomes payable, it is a debt to be paid by the company and each shareholder is entitled to sue the company for his proportion.

7.
Since the company is in any case liable to pay the dividends in question to the respondent if the court finds that it was wrong

[1986] 4 .
A.-G., Federation v. Ijewere
661

for the appellant to withhold it and the appellant contends that an order in this regard will be wrong if made against it, it is an interested party to the act in issue.

8.
The purported transfer of the shares to the 1st appellant was illegal and void in that it was carried out under a misconceived notion that they were forfeited to the Federal Military Government.

9.
So long as the shares certificate issued to the respondent by the appellant is still valid and has not been cancelled by the Board of Directors of the company the respondent would still have a claim, and a right to the dividends from G. Cappa Ltd.

10.
The fact that the 2nd appellant has been paying to the Federal Government dividends and bonuses on the shares of Mr. F. A. Ijewere forfeited to the Government cannot be an excuse for its non-payment of dividends and bonuses to a registered shareholder which the respondent is and whose shares have not been forfeited.

11.
The paramount rule in construing a statute is that the court is to see what is the intention which the legislature has expressed by the words, but then the words again are to be understood by looking at the subject matter they are speaking of and the object of the legislature.

12.
The general rule of construction) is that where a particular class is spoken of, and general words follow, the class first mentioned is to be taken as the most comprehensive, and the general words treated as referring to matters euisdem generis with such class.

13.
The proper interpretation of “other persons” which follow the words “Public Officers” must be taken as the most comprehensive and the words “other persons” must be restrictive to the same genus as the specific words “Public Officers” that precede them.

14.
The Order No. 33 of 1978 which concerned the shares of Mr. F. A. Ijewere did not have the effect of transferring the shares of the respondent in the 2nd appellant company.

15.
Per ADEMOLA, J.C.A

“It is ridiculous to say the least that a company that has the respondent as a registered shareholder on its book could come out and prevaricate as to who should have the dividends and bonus of those shares. If Mr. F. A. Ijewere had no shares in G. Cappa Limited to be forfeited as directed by the Federal Government it was up to the second appellant to let the authorities know. I have the impression that the second appellant wants to run with the hares and hunt with the hounds. The result is that It ends up by pleasing nobody.”

Nigerian Cases Referred to in the Judgment:

Adejumo v. Johnson (1974) 1 All N.L.R. 29

Attorney-General of Imo State v. Attorney-General of Rivers State (1983) 8 S.C. 10

The Council of the University of Ibadan v. Adamolekwz (1967) 1 All N.L.R. 213

Ibenemeka v. Egbuna (1964) 1 W.L.R. 214

662
.
4 August 1986
(ADEMOLA, J.C.A )

A

B

C

D

E

F

G

H

聽聽聽聽聽 聽 Lakanmi v. Attorney-General Western Nigeria聽(1971) 1 U.I.L.R. (Pt. 2) pg. 201

聽聽聽聽聽 聽 Sode v. Attorney-General of the Federation of Nigeria (1986) . (Pt. 24) 568

聽聽聽聽聽 聽 Uwaifo v. Attorney-General (1982) 7 S.C. 124, 270-272, 275-285

Foreign Cases Referred to in the Judgment:

Barnard v. National Dock Labour Board (1953) 2 Q.B.18

Re Clay, Clay v. Booth (1919) 1 Ch. 66

Edinburgh Street Tramways v. Torbain (1877) APP. CAS 58

Re Severn Etc. Ry (1896) 1 Ch. 559

Nigerian Statutes Referred to in the Judgment:

Investigation of Assets (Public Officers and Other Persons) Decree 1978, Secs. 4(6), 8, 10, 12

Legal notice No. 33 of 1978

Evidence Act, Section 149

Book Referred to in the Judgment:

Palmers: Company Law, 20 ed.

Appeal:

This was an appeal from the decision of the High Court which granted the respondent all the declarations sought. The Court of Appeal also dismissed the appeal.

History of the Case:

Court of Appeal:

Division of the Court of Appeal to which the Appeal was brought: Court of Appeal, Lagos

Names of Justices that sat on the appeal: Adenekan Ademola, J.C.A. (Presided and Read the Lead Judgment); Philip Nnaemeka-Agu, J.C.A.; Owolabi Kolawole, J.C.A.

Date of Judgment: 15th June, 1986 Appeal No.: CA/L/206/85

High Court:

Name of the High Court: Federal High Court, Lagos. Name of the Judge: Sowemimo, J.

Counsel:

Mr. Adio – for the first Appellant

Mr. Ogundipe – for the second Appellant

Mr. Okoh – for the Respondent

ADEMOLA, J.C.A. (Presiding and Delivering the Lead Judgment): In the聽court below the respondent’s writ of summons read thus:

“(a)
A declaration that he is the beneficial owner of the N20,000.00 Ordinary Shares numbered 334,001 to 354,000 in G. Cappa

[1986] 4 .
A.-G., Federation v. Ijewere
(ADEMOLA, J.C.A )
663

A

B

C

D

E

F

G

H

Limited and as such he is entitled to all bonus issues and dividends accruing on the said shares with effect from 20th October, 1975.

(b)
An injunction to restrain the 2nd defendants by themselves, their servants or agents or otherwise howsoever from paying over any dividend accruing on the said shares to the Federal Government of Nigeria or to any other person not being the plaintiff.

(c)
An order directing G. Cappa Limited to pay over to the plaintiff all the dividends accruing on the said shares and bonus issues to which the plaintiff is absolutely entitled.

(d)
Damages for breach of contract.

(e)
Further or other relief.

(f)
Costs.”

Pleadings were ordered, filed and delivered. The respondent gave evidence and called a witness. After the respondent had closed his case, the 1st appellant brought an application to dismiss the claim on the ground that the court has no jurisdiction to entertain the claim. A ruling was delivered dismissing the 1st appellant application, in consequence of which the 1st defendant appealed and asked for a stay of proceedings pending the determination of the appeal. The application was granted. Subsequently the appeal was dismissed and the case sent back for the trial to continue. On the hearing date both counsel for the 1st and 2nd appellant indicated that they were not calling evidence. The three counsel addressed the court.

The facts of the case as presented by the respondent are that in 1975 the respondent bought 20,000 shares from the 2nd defendant Company and was issued with share certificate as evidenced by Exhibit ‘A’. Each share was valued N1 but later subdivided into 50k per share so that the total shares he has with the 2nd appellant were 40,000 shares. The respondent testified further that in 1977 the dividend and bonus due to him were not sent to him, in consequence of which he made enquiry from the 2nd appellant and was told that a forfeiture order had been made against his share, and was given a letter Exhibit ‘C’ to ‘CT. He later saw a forfeiture order made against Mr. F. A. Ijewere in the Federal Gazette of No. 27 Vol. 65 of 15th June 1978 and published as Legal Notice No. 33 of 1978 as evidenced by Exhibit ‘B’ to ‘B2’. He stated that he is not the person named as F.A. Ijewere. F. A. Ijewere is not the owner of the shares in Exhibit ‘A’. The respondent testified further that no enquiry was held in respect of his shares. The respondent stated that when the 2nd appellant refused to pay him the dividend, he instructed his Solicitor to write the 2nd defendant as evidenced by Exhibit ‘E’ to ‘E9’. He was handed a reply Exhibit ‘F’. He is now asking the court to declare him as the owner of the shares in Exhibit ‘A’ and that he should be paid his dividends and bonus.

Mr. Adio, Legal Adviser, learned counsel for the 1st appellant in the court below and here submitted that he agreed that the shares referred to in the forfeiture order are that of Mr. F. A. Ijewere and not that the respondent and that the respondent is not a public officer and his assets were not investigated.

Counsel submitted that the shares transferred to the Federal Government by virtue of Exhibit B, B1 and C belong to F. A. Ijewere and that the court should disregard the letter Exhibit ‘F’ because the shares had been transferred before Exhibit ‘F’ was written. He stated that paragraphs 7, 8 & 9 of the amended

664
.
4 August 1986
(ADEMOLA, J.C.A )

A

B

C

D

E

F

G

H

statement of claim confirm it. Counsel referred to section 8 of the investigation of Assets (Public Officers and Other Persons) Decree 1978 to show that the assets of any person can be forfeited if any enquiry has been made in respect of any Public Officer. He also referred to section 12 which ousted the jurisdiction of courts. He submitted that Legal Notice No. 33 of 1978 cannot be challenged.

He referred to section 149 of the Evidence Act which dealt with presumption of regularity and submitted that if there is any mistake about the identity of person or property, the onus is on the respondent to discharge the burden of proof.

The learned counsel finally submitted that when an asset has been forfeited either pursuant to a decree or edict, that forfeiture cannot be challenged in any court whether such person is a public officer or not. In support of his contention,he referred to the following cases:

聽聽聽聽聽聽聽聽(1)聽聽聽聽聽聽聽聽The Council of the University of Ibadan v. N. K. Adamolekun (1967) 1 All 聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽N.L.R. 213.

聽聽聽聽聽聽聽聽聽(2)聽聽聽聽聽 聽 聽Adenrele Adejumo and another v. Colonel M. Johnson (1974) 1 All N.L.R. 聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽29

聽聽聽聽聽 聽 聽(3)聽聽聽聽聽 聽 聽聽F.S. Uwaifo v. Attorney-General & Other (1982) 7 S.C. 124, 270 to 272 and 聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽275 to 285.

聽 聽(4)聽聽聽聽聽 聽聽Attorney-General of Imo State v, Attorney-General of Rivers State (1983) 8 聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽S.C. 10 in particular pages 29 to 30.

聽聽聽聽聽聽聽聽(5)聽聽聽聽聽 聽 聽Lakanmi v. Attorney-General of Western Nigeria (1971) Vol. 1 University of 聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽Ife Law Report Part 2 page 201.

Mr. Ogundipe, counsel for the 2nd appellant here and in the court below submitted that the facts established by the evidence show that the respondent is the owner of the shares in question and that the shares forfeited by virtue of Legal Notice No. 33 of 1978 was the shares of F.A. Ijewere and not the shares of the respondent.

The learned counsel contended that it was the shares of the respondent that the 2nd appellant transferred to the Federal Government in purported satisfaction of the forfeiture Order and that the action of the 2nd appellant in transferring the respondent’s shares to satisfy the forfeiture of F.A. Ijewere assets cannot be considered to be legally correct.

Mr. Ogundipe submitted that the respondent’s action is not a challenge of the forfeiture order but of the 2nd defendant’s action in transferring the respondent’s shares to the Federal Government and also the continued holding by the Federal Government of the respondent’s shares in light of the improper transfer by the 2nd appellant.

He submitted that the 2nd appellant does not deny the respondent’s title to the shares and the position of the 2nd appellant has always been that it is prepared to pay dividend to whoever the court declares to be the owner. He stated that the court should not award any damages because the respondent did not plead any contract with the 2nd appellant neither did he prove any contract or terms of contract against the 2nd appellant.

At the conclusion of the trial in the court below, the learned trial Judge, SOWEMIMO, J concluded that the 40,000 shares in the second appellant’s company which was purportedly transferred by the second appellant to the Federal Government without any justification belongs to the respondent as beneficial owner, that the respondent is entitled to all bonus and dividends accruing on the said shares with effect from 30th October 1975; an injunction

[1986] 4 .
A.-G., Federation v. Ijewere
(ADEMOLA, J.C.A )
665

A

B

C

D

E

F

G

H

was also granted restraining the second appellant by themselves, their servants or agents or otherwise from paying over the dividend on the respondent shares to the Federal Government or to any other person not being the respondent.

It was further ordered that the second appellant pay over to the plaintiff all the dividends accruing on the respondent’s shares and bonus issues to which the respondent is entitled. There was no award for damages as claimed by the respondent as there was no evidence to support it.

From these orders made by the learned trial Judge, the appellants have appealed to this court.

The first appellant, the Attorney-General of the Federation filed a brief. The second appellant, G. Cappa Limited filed two briefs, the respondent’s brief as well as an appellant brief. I shall deal with the first appellant’s brief which in my opinion is a repetition of the submission made to the court below and had been rightly rejected.

Mr. Adio in his oral argument before the court conceded that the shares forfeited in G. Cappa were those of one Mr. F. A. Ijewere and not the respondents who happens to be a Mr. Ijewere but answers to the name of Emmanuel Ijewere. That the said Mr. Emmanuel Ijewere was not a subject of investigation under Decree (Investigation of Assets of Public Officers and Other Persons) No. 37 of 1968. He contended however that if there is any mistake about the identity of person or property the onus is on the respondent herein having regard to section 149 of the Evidence Act to discharge or to prove that he was not the person referred to. The court quickly reminded him that no such onus was placed upon the respondent having regard to the fact that the appellants in the court below did not give evidence nor in any way prove paragraphs 3 and 5 of his amended statement of defence. Mr. Adio quickly abandoned his stand generally in this appeal.

Before leaving the appeal of the first appellant, it is not out of place to mention here that this is another example of the type of cases which we have had the opportunity to deal with in this court where a forfeiture order was made in respect of a public officer whose assets had been investigated and in the execution of the forfeiture another person other than the public officer becomes the victim of the order of forfeiture. This betrays some lack of thoroughness either in the investigation that had earlier been conducted or a misunderstanding of Decree No. 37 of 1968 which talks of Investigation of Assets of Public Officers and Other Persons. It is my view that going by the title, particularly the words “Other Persons” in the title of the Decree, it does not justify the forfeiture of such other person’s property who has not been duly investigated or heard under the Decree; see the proviso to section 4 subsection 6 of Decree No. 37 of 1968.

It is true that generally while dealing with issues of corruption, abuse of office, unlawful enrichment by public officers other persons are used by such public officers as “fronts” or “agents” or “intermediaries” – activities that the Decree is out to stamp out. But the construction to be placed upon the provisions of the Decree is against the taking of another man’s property who has not been the subject of an inquiry under the Decree. The order forfeiting the share assets of Mr. F. A. Ijewere in G. Cappa Limited did not mention that the respondent is also owner of those shares in G. Cappa Limited. To that extent, the appeal of the first appellant against the judgment cannot stand.

As I said earlier, the second appellant filed two briefs. In the first brief, it opposed the argument of the Attorney-General, the first appellant, and conceded

666
.
4 August 1986
(ADEMOLA, J.C.A )

A

B

C

D

E

F

G

H

that the shares belonging to the respondent were forfeited in furtherance of the directive received from the first appellant. In the second brief which was filed on its behalf, the second appellant questioned the correctness of the decision of the learned trial Judge.

In the brief of argument, the questions for determination were put thus:

(a)
Ought the court to have granted discretionary remedies of declaration and injunction against G. Cappa Limited, when there was no real dispute between G. Cappa Limited and Emmanuel Ijewere.

(b)
Ought the court to have ordered G. Cappa Limited to pay over all dividends accruing on Emmanuel Ijewere’s shares when no allegation was made in the pleadings that G. Cappa Limited had held such dividends in its hands and when no evidence was adduced as to whether dividends due to Emmanuel Ijewere were paid to a person other than Emmanuel Ijewere.

It is contended on behalf of 2nd appellant that no discretionary remedy ought to have been granted to Mr. Ijewere in this case. The appellant never denied his (Ijewere’s) title to the shares in question.

On the other hand, the Attorney-General contended that the shares were properly forfeited and now vested in the Federal Government. Therefore, the true dispute as to ownership was between the Federal Government and Mr. Ijewere. G. Cappa Limited also had no intention of paying any future dividends to any person other than the one adjudged now by the court to be entitled to receive them. Whether it was Mr. Ijewere or the Federal Government was of no concern to G. Cappa Limited.

It was submitted that the power to make binding declarations of right is a discretionary power, lbenemeka v. Egbuna (1964) 1 W.L.R. 214. The circumstances of this case did not call for the making of any declaration in favour of Mr. Ijewere against G. Cappa Limited; In re Clay, Clay v. Booth, in re A Deed of Indemnity (1919) 1 Ch.66 where DUKE, L. J. said at page 78:

“I agree entirely with the conclusions of fact at which the Master of Rolls has arrived; and it is upon those findings of fact that my judgment in this case proceeds. I regard this defendant as a defendant who has done nothing which warranted the petitioners making him a defendant in an action …”

(Italics supplied)

It is submitted that G. Cappa Limited had done nothing which warranted Mr. Ijewere making it a defendant in an action seeking declaratory relief. Mr. Ijewere’s title to the shares was not being denied by G. Cappa Limited, so the court ought not to have granted him a declaration against G. Cappa Limited.

Similarly, an injunction, being a discretionary relief, it should only be granted in support of a right that is being denied by a defendant. Second appellant’s case with regard to the claim for injunction was that it would pay dividends only to the person the court adjudged to be entitled thereto. It was also not denied that the shares ordered to be forfeited were those of Mr. F. A. Ijewere and not those of Mr. E. Ijewere. In spite of this, the learned trial Judge proceeded to grant an injunction against G. Cappa Limited.

The learned authors of the Chapter on Injunction in Halsbury’s Law of England Volume 24 state at paragraph 927, page 533 had this to say:

[1986] 4 .
A.-G., Federation v. Ijewere
(ADEMOLA, J.C.A )
667

A

B

C

D

E

F

G

H

“The general rule is that if a plaintiff applies for an injunction in respect of a violation of a common law right, and the existence of that right, or the fact of its violation is denied, he must establish his right at law. Having done that, he is, except in special circumstances, entitled to an injunction …”

(Italics supplied)

It is submitted that where the fact of the violation of the plaintiff’s right is not denied, he is not entitled to the discretionary relief of injunction.

Furthermore, it is submitted that in the circumstances of this case, no order affecting past dividends ought to have been made against G. Cappa Limited. It was common ground before the court that the shares in question had been transferred to the Federal Government. The Federal Government had therefore been enjoying all the benefits that attached to the said shares, in the way of bonus, issues and dividends. Since this was quite clearly the position, it was most unfair for the learned trial Judge to have ordered G. Cappa Limited to pay past dividends to Mr. Ijewere. These past dividends had clearly been received by the Federal Government. Any order for paying the dividends over should have been directed at the Federal Government and not to G. Cappa Limited. The effect of the judgment of the Federal High Court is to punish G. Cappa Limited whilst leaving the Federal Government to keep dividends by implication which ought not to have been received by the Federal Government in the first place. It is submitted that this is inequitable and should not be permitted.

In the reply brief filed on behalf of the respondent, the questions for determination were put as follows:

(a)
Was the demand by the Federal Military Government on G. Cappa Limited to transfer the shares forfeited as published in the Legal Notice No. 33 of 1978 in relation to the shares held by the 1st respondent Emmanuel Ijewere, in the company, and was it right on the part of G. Cappa Limited to construe the said demand as relating to the shares of the respondent?

(b)
Did G. Cappa Limited deprive the respondent of his shares and the dividends thereon; if so, was it competent of the appellant so to do?

(c)
In the light of the questions posed in (a) and (b) above, can it be contended that there was no real dispute between G. Cappa Limited and the first respondent such that the remedies claimed by the respondent would not be available to him in law?

The argument presented in the brief filed on behalf of the 2nd appellant is that discretionary remedy ought not to have been granted to the respondent because G. Cappa Limited never denied his title to the shares in question. According to learned counsel, G. Cappa Limited was not concerned either and it was the Attorney-General, who contended that the shares were properly forfeited and now vested in the Federal Military Government. It is respectfully submitted that Counsel’s view in this regard is mis-conceived. It is clear from the pleadings and it was the contention of the respondent that his shares were at no time forfeited by the Federal Military Government. The demand of the Federal Military Government, for payment to it of dividends concerned the forfeited shares of F.A. Ijewere and not him.

668
.
4 August 1986
(ADEMOLA, J.C.A )

A

B

C

D

E

F

G

H

The 2nd appellant on the other hand, was of the view that it was the shares of the respondent that was forfeited. In so far as the respondent was concerned the letter of 19th October, 1978 which is Exhibit Cl did not relate to his shares but to that of F. A. Ijewere and it was wrong for the appellant to construe the demand in the said letter in relation to his shares. The respondent therefore did not recognise the decision of G. Cappa Limited to with-hold the payment of dividend to him at any time, and the stand of G. Cappa Limited in this regard was wrong.

It is agreed that the power of the court to make binding declarations of right is a discretionary power. The authority of the case of Ibenemeka v. Egbuna (1964) 1 W.L.R. 214 has been mis-applied to this case by the appellant. The declaratory jurisdiction of a court such as the Federal High Court is virtually unlimited. Thus in the case of Barnard v. National Dock Labour-Board (1953) 2 Q.B. 18 at 41 Denning, L. J. (as he then was) said:

“I know of no limit to the power of the court to grant a declaration except such limit as it may in its discretions impose upon itself’.

The 2nd appellant in this case held the view that the shares of the respondent were forfeited and acting under this erroneous belief wrongfully transferred the shares in question to the Federal Military Government. The respondent on the other hand does not accept the view of the appellant and challenged its right to deny him of his dividends and other benefits as shareholder in the company. It is further submitted that even if the discretionary remedy of declaration was available only in extra-ordinary circumstances, such remedy will be available to the respondent in the circumstance of this case. Unlike in re Clay, Clay v. Booth, in re Deed of Indemnity (1919) 1 Ch. 66 where the defendant there had done nothing, the defendant in this case had done enough to warrant the grant of the relief claimed by the respondent.

The contention of learned counsel in substance is that he should not even have been made a party to the action. This view is supported by the argument of counsel at page 3 where it is stated that the true dispute as to ownership was between the Federal Government and Mr. Ijewere. This stand, it is submitted, is not supported by paragraphs 3 and 4 of the statement of defence of the appellant which allege that the shares in question were the same as those forfeited and that dividends had been paid to the Federal Government before the commencement of the action. The general rule is that all persons who appear to have a real interest in objecting to the grant of declaration should be made defendants. It is also submitted that the appellant has an interest to oppose the claim of the first respondent that he is entitled to the payment of dividends as from 23rd of February 1976. This is clear from the argument in the brief where it contended that it ought not to have been ordered to pay over the dividends which it had paid to the Federal Military Government to the first respondent. This is because where dividend is declared and becomes payable, it is a debt to be paid by the Company and each shareholder is entitled to sue the Company for his proportion. Reliance is placed on PALMERS COMPANY LAW 20th Edition, Page 625; Re Severn etc. Ry (1895) 1 Ch. 559. Therefore, since the company is in any case liable to pay the dividends in question to Emmanuel Ijewere if the court finds that it was wrong for the appellant to withhold it and the appellant contends that an order in this regard will be wrong if made against it, it is respectfully submitted that it is an interested party to the act in issue.

[1986] 4 .
A.-G., Federation v. Ijewere
(ADEMOLA, J.C.A )
669

A

B

C

D

E

F

G

H

It was contended that, similarly an injunction being a discretionary relief, should not be granted as G. Cappa Limited’s case with regard to the claim for injunction was that it would pay dividends only to the person adjudged to be entitled thereto. Learned counsel for the appellant relied on the passages quoted from Halsbury’s Laws of England and concluded that where the fact of the violation of the plaintiff’s right is not denied, he is not entitled to the discretionary relief of injunction. It is respectfully submitted that the view earlier expressed in this brief that learned counsel has glossed over the question whether G. Cappa Limited deprived the respondent of his shares and dividends thereon and if so whether it was competent for the 2nd ” appellant so to do is responsible for the misconception.

In this case the right of the first respondent to his shares was denied by the appellant which misconstrued the forfeiture order in relation to the shares of the first respondent and therefore wrongfully transferred his shares to the Federal Military Government. When the respondent demanded the payment of his dividends to him as in Exhibit ‘E’ the appellant by their solicitor’s letter, Exhibit ‘F’ not only compounded the matter but requested that the claim of the respondent be referred to court. By requesting that the dispute be referred to court before the demand of the first respondent can be accepted, the appellant in effect meant that it would continue to deny the payment of dividends to the respondent unless it was ordered by the court to do so. In any case, the first respondent at all times contended that his shares were never forfeited and that the demand conveyed by Exhibit ‘Cl’ (the letter from the Cabinet Office dated 19th October, 1978) related to the shares of F. A. Ijewere, as shown in Exhibits B-B3 and not to his own shares. There was therefore no reason for G. Cappa Limited to expect that its violation of the rights of Emmanuel Ijewere would be accepted. It is further argued that because the shares in question had been transferred to the Federal Government and dividends paid to it the appellant becomes relieved of its burden to pay accrued dividends to the respondent.

It is respectfully submitted that this contention is untenable. The purported transfer in the first place, was illegal and void in that it was carried out under a misconceived notion that they were forfeited to the Federal Military Government. The first respondent remained the lawful owner of the said shares at all times. By refusing to pay declared dividends to the first respondent as the legitimate owner, the appellant became indebted to him in the sum of the dividends declared. (See Re Severn & Wye & Severn Bridge Ry. (1896) 1 Ch. 559). G. Cappa Limited does not become relieved of its obligation to the respondent because it was aware that such wrong person was not the owner of the shares on which the dividends was paid.

It acted as such while pretending that dividends will only be paid to the person who the court adjudges to be the owners of the shares. By behaving in this manner, G. Cappa acted in absolute and palpable bad faith and in reckless disregard of the rights of the first respondent. It is therefore not fit, in the circumstance, to invoke equity in its aid. It is submitted that the obligation to pay dividends to the respondent continues whether or not it was paid to the wrong person.

670
.
4 August 1986
(ADEMOLA, J.C.A )

A

B

C

D

E

F

G

H

In this appeal I prefer to determine the issues raised on the lines of questions for determination as formulated in the respondent’s brief. The questions as set out there are matters which this appeal is all about.

Contrary to the submission of the second appellant, the real issue is between the respondent and the first appellant. It is the action of the second appellant that has led to this action being taken by the respondent. It is beyond dispute on the face of Exhibit Cl that what the Federal Military Government demanded of G. Cappa Limited was to transfer the shares belonging to one F. A. Ijewere in G. Cappa Limited to the Federal Government. Nowhere in that letter or in the accompanying order of forfeiture was the name of Emmanuel I. Ijewere, the present respondent mentioned. If the second appellant, for the reasons best known to itself transferred the shares of the respondent to the Federal Military Government, as it has contended it has done, could such an action be justified?

On the pleadings filed, the respondent pleaded in paragraph 8 as follows:

聽聽聽聽聽聽聽聽聽聽聽聽”The 2nd defendant, purporting to act in accordance with the demand conveyed by the said letter of 19th October, 1978, wrongfully construed the same in relation to the plaintiff’s shares. At the trial of this suit, the plaintiff shall contend that if, which is denied, the demand of the Federal Military Government related to his said shares, the same is false, illegal, void and of no effect whatsoever.”

The second appellant replied by way of an admission. The emphasis in paragraph 8 of the amended statement of claim of the respondent was on the wrongful construction of the letter of the 19th October, 1978 by the 2nd appellant and the attendant action taken on it by him. The second appellant admits both allegations, unless it can justify what it has done, it cannot say there was no real dispute between it and the respondent. Again, paragraph 3 of the amended statement of claim which reads as follows:

“At all material times, the plaintiff is the registered owner of the 20,000 Ordinary Shares in the 2nd defendant Company as evidenced by Share Certificate No. 38 of 23rd of February, 1976. At the trial of the Suit herein, the plaintiff shall rely and found on the register of shareholders of the 2nd defendant.”

This was not denied but admitted by the second appellant. It therefore puts it beyond any shadow of doubt that the ownership of the 40,000 shares in G. Cappa Limited is that of the respondent.

In my opinion, these admissions on the part of the second appellant make the position very clear. It is ridiculous to say the least that a company that has the respondent as a registered shareholder on its book could come out and prevaricate as to who should have the dividends and bonus of those shares. If Mr. F. A. Ijewere had no shares in G. Cappa Limited to be forfeited as directed by the Federal Government, it was up to the second appellant to let the authorities know. I have the impression that the second appellant wants to run with the hares and hunt with the hounds. The result is that it ends up by pleasing nobody.

On the pleadings and the evidence in this case, I cannot agree with the second appellant’s contention that this is a case where the declaratory reliefs asked for by the respondent should have been refused.

I come now to the second issue, on the deprivation of the respondent of the dividends on his shares.

[1986] 4 .
A.-G., Federation v. Ijewere
(ADEMOLA, J.C.A )
671

A

B

C

D

E

F

G

H

Exhibit F, written by the solicitors to the second appellant does not intend to pay dividends on the shares held by Mr. E. I. Ijewere on the alleged ground that the ownership of the shares should be determined by court. Here again, it is the second appellant that has created for itself an alleged obstacle on the issue of ownership of the shares, which frankly is not an issue and thereby prevented itself from fulfilling its obligation to the respondent. If, as it is contended by the second appellant that it has transferred respondent’s shares in its company to the Federal Government, it was up to it to produce evidence of such transfer and registration of such shares from its book of Registered shareholders. This, it has failed to do. As long as Exhibit A issued to the respondent by the appellant is still valid and has not been cancelled by the Board of Directors of the company of the second appellant, the respondent would still have a claim and a right to the dividends from G. Cappa Limited.

During the hearing of this appeal, learned Counsel for the appellant argued that the second appellant was standing on the horns of a dilemma and that his position was very precarious as a business organisation. This argument ad misericordiam cannot change the state of the law. I do not think second appellant was standing on the horns of a dilemma. The imaginary obstacles are all its own making. The appeal that he is paying to the Federal Government dividends and bonuses on the shares of Mr. F. A. Ijewere forfeited to the Government cannot be an excuse for its non-payment of dividends and bonuses to a registered shareholder which the respondent is.

The appeal would therefore be dismissed. The orders of SOWEMIMO, J made in the judgment are hereby confirmed. The respondent is to have the cost of this appeal against both appellants in respect of the appeal of the first appellant the sum of N350.00 and in respect of the second appellant a sum of N500.00.

NNAEMEKA-AGU, J.C.A.: I read in draft the judgment of my brother Ademola, J.C.A. just delivered and agree that the appeals of the Attorney-General of the Federation and G. Cappa Ltd. be dismissed.

I should first deal with the question whether or not the shares of F.A. Ijewere (the respondent) in G. Cappa Ltd. (the 2nd appellants) were vested in the appellants. I shall rest my decision on this question on what I had to say on the same Orders in somewhat similar circumstances in the case of C.

O. Sode & Ors. v. The Attorney-General of the Federation of Nigeria & Ors. (1986) . (Part 24) 568, where I said at p. 575:

“The pith and marrow of appellants’ case is that the intention of the two Orders (i.e. No. L.N.33 of 1978 and No. 17 of 1979) was to forfeit the leasehold property of J. H. Bassey in Jebs Limited and not the property’ of the appellants and their predecessor in title. So, if on the evidence, Jebs Limited and J. H. Bassey have no leasehold interest in the property in dispute then the court has jurisdiction to say that its jurisdiction to make any pronouncement on the property of the appellants was not ousted (Parenthesis supplied by me).

Then after examining the evidence I concluded at p. 576:

“As the clear intention of the Orders was to forfeit the leasehold

672
.
4 August 1986
(KOLAWOLE, J.C.A.)

A

B

C

D

E

F

G

H

interest of Mr. J. H. Bassey, per Jebs Limited, and not that of Chief Sode those Orders would not have the effect of passing the title in the property in dispute for 18 years on the respondent.”

So it is in the instant case. The Order No. 33 of 1978 which concerned the shares of Mr. F. A. Ijewere did not have the effect of transferring the shares of the 1st respondent, Mr. Emmanuel I. Ijewere, in the 2nd appellant company. The principal Decree and the Order in question were directed against public officers and their collaborators who had defrauded public property and revenue and cannot be applied to persons outside this category of persons. I therefore agree that the appeal of the 1st appellant ought to be dismissed.

I am not impressed by the rather belated posture of the 2nd appellant in this matter. Initially, even though the difference between the names of F.A. Ijewere and Emmanuel Ijewere was pretty obvious, the 2nd appellant’s attitude was to standon the fence and turn over the issue to the court for a decision. They failed to do the obvious by refusing to enforce an obviously ineffective order of the T1 appellant. In their pleading they denied the respondent’s entitlement to the reliefs he claimed. But at the hearing they failed to give evidence. It looks as if the stance of the 2nd appellants was, proverbially, to try to eat their cake and have it still. This cannot be so. I therefore agree that this case is distinguishable from that of In Re Clay (1919) 1 Ch. 66 where the defendant had done nothing in opposition to the plaintiff’s entitlement to his reliefs.

The 2nd appellant’s position with respect to payment of past dividends is even more ridiculous. For, not only did they fail to give evidence to show that they had paid over the dividends to the Is1 appellants or anyone else but also they pleaded in paragraph 5 of their statement of defence thus:

“Save as alleged in paragraph 4 hereof this defendant has refused to pay over dividends to either party until the issue of the rival claims of the plaintiff and the lst defendant are resolved.”

In that state of their pleading, how can they be heard now to complain against the order of the learned Judge that those past dividends and bonus shares be paid over to the respondent?

In the result, I hold that the contentions of both appellants are unfounded either in law or in fact. Their appeals are dismissed and the judgment of Sowemimo, J., in the Federal High Court affirmed, with costs as assessed.

KOLAWOLE, J.C.A.: I have had the advantage of reading in draft the judgment of my learned brother Ademola, J.C.A. just delivered. I agree with his reasoning and conclusions. I only wish to comment briefly on the proper interpretation of Decree No. 37 titled the Investigation of Assets (Public Officers and Other Persons) Decree 1968 as it related to the assets of Emmanuel Ijewere the respondent.

I agree with my learned brother that experience has shown that in Nigeria while dealing with corruption, abuse of office, unlawful enrichment by public officers, other persons are used by such public officers as “fronts” or “agents” or intermediaries for the despicable activities which the 1968 Decree is designed to stamp out.

[1986] 4 .
A.-G., Federation v. Ijewere
(KOLAWOLE, J.C.A.)
673

A

B

C

D

E

F

G

H

But what is the scope and extent of the Decree? I believe that the paramount rule still remains that in construing a statute the court is to see what is the intention which the legislature has expressed by the words, but then the words again are to be understood by looking at the subject matter they are speaking of and the object of the legislature. (See Edinburgh Street Tramways v. Torbain (1877) App. Cas. 58 at p. 68).

The general rule of construction is that where a particular class is spoken of, and general words follow, the class first mentioned is to be taken as the most comprehensive, and the general words treated as referring to matters ejusdem generis with such class.

In my view the proper interpretation of “other persons” which follow the words “public officers” must be taken as general words following a particular class which must be taken as the most comprehensive and the words “other persons” must be restricted to the same genus as the specific words “public officers” that precede them. The respondent who was not a public officer or whose assets were not investigated under Decree No. 37 could not have his asset forfeited by the Government on the ground that he did not come within the meaning of “other persons”. If his assets had come for scrutiny or if when the assets of F. A. Ijewere were investigated, the assets of F. A. Ijewere which would have been available for the purpose of forfeiture or reparation order appeared to be in the hands of G. Cappa Limited ostensibly for valuable consideration, the Federal Government might have directed their delivery or transfer in accordance with section 10 of Decree No. 37.

There was no evidence that when the assets of F. A. Ijewere were investigated the 40,000 shares registered in the name of the respondent belonged to F. A. Ijewere but were ostensibly held by G. Cappa on behalf of Emmanuel Ijewere. It was most imprudent for G. Cappa Limited to receive the forfeiture order Exhibits B -B2 of the shares of F. A. Ijewere and for the delivery of those shares to the Government by the company on the face of the exhibits B – B2 and Cl stating clearly the shares which Government required and for the company to transfer the 40,000 shares of Emmanuel Ijewere to Government. The company ought to be courageous enough to address a letter to Government in response to exhibit Cl stating politely that they held no shares belonging to F. A. Ijewere. There was therefore a dispute between Emmanuel Ijewere and G. Cappa Limited for wrongfully paying what did not belong to F. A. Ijewere to Government and persisting in paying the dividends to the wrong person.

For these reasons and for the fuller reasons given in the lead judgment I also would dismiss the appeal. I abide by the order for costs.

Appeal Dismissed.

Leave a Reply

Your email address will not be published. Required fields are marked *