TRANSNATIONAL CORPORATION OF NIGERIA PLC v EGBE & ANOR

TRANSNATIONAL CORPORATION OF NIGERIA PLC v EGBE & ANOR


IN THE COURT OF APPEAL
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

ON FRIDAY, 28TH APRIL, 2017


Appeal No: CA/L/764/2013
CITATION:

Before Their Lordships:

MOHAMMED LAWAL GARBA

BIOBELE ABRAHAM GEORGEWILL

UGOCHUKWU ANTHONY OGAKWU


BETWEEN

TRANSNATIONAL CORPORATION OF NIGERIA PLC

(APPELLANT)

AND       

UDEAGHA EGBE AND MRS. UGONMA EGBE

NSE CONSULT LIMITED       

(RESPONDENT)


PRONOUNCEMENTS


A. ACTION
1. Claims – Powers of the court to grant an unclaimed relief

Whether Court can grant relief not claimed; Exception to the general rule

“The case is an exception to the general rule of practice that pre-judgment interest must be pleaded and proved by evidence before it can be awarded by a Court, as stated and restated in the cases cited in the Appellant’s brief on the point.

In addition, the case is also an exception to the general principle that a Court has no authority or power to grant to grant to a party more than or what was not claimed.
This is because the entitlement and right to the rate of interest is provided for by statute and the Court has the power and duty to apply and ensure compliance with the provisions of a statute that is relevant to the determination of the case before it without the need for prompting from the parties. Nwosu vs. Imo State Environment Sanitation Agency (supra).”Per GARBA, JCA read in context

B. COMPANY LAW
2. Securities and Exchange Commission – Powers of the Securities and Exchange Commission under the Investments and Securities Act

Functions and powers of the Securities and Exchange Commission as provided under the Investments and Securities Act

“It must be pointed out that the rate of interest on such withheld money and the period when it becomes due are set out in the statute, i.e. ISA, 2007, which bind both the parties and the Tribunal. By the provisions of Section 96(2) and (3) of Investments and Securities Act, 2007, the commission is to determine the rate of interest which shall not be less than one percent above the CBN MRR and the commission may direct a company to pay a higher rate of interest on surplus money, in appropriate situations. As stated above, the 1st Respondent’s money held by the Appellant was surplus money that ought to have been returned to him as a subscriber whose application was not accepted by the Appellant in accordance with the provisions of Section 96(1). For failure by the Appellant to comply with the provisions of subsection (1), the rates of interest stipulated and provided for in Subsections (2) and (3) become applicable to such money and the Tribunal is right once more, to have applied the provisions to the case.” Per GARBA, JCA read in context

3. Company Shares – Allotment of shares under the Companies and Allied Matters Act

When is a contract of allotment of shares valid

“Because the Appellant whose shares are the subject of the dispute before the Tribunal, is a company registered or incorporated under the Companies and Allied Matters Act (CAMA), Section 125 provides for allotment of shares of companies during private or public offers. The provisions are as follows: –

“Without prejudice to the provisions of Sections 566 to 574 of this Act, the following provisions shall apply in respect of an application for an allotment of shares issued by a company: –
(a) In the case of a private company or public company where the issue of shares is not public, there shall be submitted to the company a written application signed by the person wishing to purchase shares and indicating the number of shares required;

(b) In the case of a public company, subject to any conditions imposed by SEC where the issue of shares is public, there shall be returned to the company a form of application as prescribed in the company articles, duly completed and signed by the person wishing to purchase such shares;

(c) Upon receipt of an application, a company shall, where it wholly or partially accepts the application, make an allotment to the applicant and within 42 days after the allotment notify the applicant of the fact of allotment and the number of shares allotted to him.”

Under the clear provisions of paragraph(c), a company which received applications from persons wishing to purchase its shares, is under a duty to, where it accepts the application either wholly or partially, to make an allotment to the applicant and within 42 days of the allotment, notify the applicant of the fact of the allotment and the number of shares allotted. The contract for the sale and purchase of shares of a company is concluded and validly entered into between an applicant and the company when the company accepts an application and allot the shares to the applicant. In this regard; Section 126 of the CAMA provides thus: –

“An allotment of shares made and notified in accordance with the provisions of Section 125 of this Act shall be an acceptance by the company of the offer of the Applicant to purchase its shares and the contract takes effect on the date on which the allotment is made by the company.” Per GARBA, JCA read in context

4. Company Shares –

Position of the law on rate of interest payable to subscribers on surplus money

“This is in line with the community purport of the provisions of Section 96(1), (2) and (3) of Investments and Securities Act (ISA), 2007, which provide for return of surplus monies to subscribers by the Appellant and within stipulated period and the consequences of the failure to honour the obligation by it. It is worthy of note again, that the provisions are for the return of surplus monies paid by subscribers to them and not for payment or re-payment of a debt owed to a credit or by a debtor. Therefore, the applicable rate of interest payable under the law applies when or from the time the surplus monies became due to be paid back or returned to the subscribers and continue to run until and up to the time the full surplus monies was/were returned or paid back to the subscribers. The rate of such interest does not end because a complaint, appeal or originating application was made to the omission or the Tribunal as the case may be.” Per GARBA, JCA read in context

C. CONTRACT
5. Terms of Contract – Duty of the court to resolve disputes arising from a contract in accordance with the terms of that contract

Whether a court can go outside the parties’ terms of contract

“The Appellant having of its own free will accepted the application of the 1st Respondent and thus voluntarily entering into an agreement to allot shares in the Appellant Company as paid for the 1st Respondent, in law both it as well as the 1st Respondent were bound to honour the terms of their agreement and therefore, their relationship and subsequent disagreements if any must be resolved in accordance with the terms of their agreement and the applicable laws if any, as in the instant appeal the Company and Allied Matters Act as well as the Securities and Exchange Act. Thus even the Court cannot in that wise on its own determine what the terms of their agreement should be outside the terms as agreed upon by them. See Nwankwo V. E.D.U.S.U.A (2007) 5 NWLR (Pt.1024) 377 @p. 410. See also Larmie V. D.P.M.S. Ltd. (2005) 18 NWLR (Pt.985) 438; Nika Fishing Co. Ltd. V. Lavina Corp (2008) 16 NWLR (Pt.1114) 509; UBN Ltd. V Edamkwe (2005) 7 NWLR (Pt.926) 520.”Per GEORGEWILL, JCA read in context

D. STATUTORY INTERPRETATION
6. Interpretation of Statute – Interpretation of the word “shall” as used in the Companies and Allied Matters Act

Construction of the word “Shall” in a statute

“In law, the use of the word “Shall” as in Section 125(c) of CAMA was deliberate and it demands mandatory compliance. This is so because the word “shall” when used in an enactment denotes a mandatory requirement. It must be complied with to render such an act or process competent. It neither allows nor permits any other course of action. See Oraekwe V. Chukwuma (2012) 1 NWLR (Pt.1389) 159 @ p.200. In Ugwu & Anor. v. Ararume & Anor. (2007) 6 SC (Pt.1) 88, the Supreme Court in interpreting the meaning of the word “shall” when used in a Statute, had pronounced emphatically thus:

“Generally, when the word “shall” is used in a Statute, it is not permissive. It is mandatory. The word “shall” in its ordinary meaning is a word of command, which is normally given a compulsory meaning because it is intended to denote obligation.” Per GEORGEWILL, JCA read in context

E. JUDGMENT
7. Award of Interest – Duty of a party claiming a rate of interest to prove the rate claimed

Whether evidence must be adduced in respect of interest claimed before same can be awarded

“However, because the 1st Respondent has claimed a particular rate of interest against the Appellant, he has a duty to plead sufficient facts and produce satisfactory evidence in proof of the rate claimed. Perhaps, I should point out here that the proof required is not of entitlement to claim interest on the sum paid to the Appellant, but rather, the proof required is as to the entitlement to the specific rate of interest claimed in the peculiar circumstances of the case. ETCO Nigeria Limited vs. A & T Investment Limited (supra). Stabilim Visioni vs. Metalum Limited (supra).”Per GARBA, JCA read in context

8. Award of Interest – Types of interest that can be awarded in a civil claim

Types of interest awardable in a civil claim

“The law is generally known that there are two (2) types of interest that can be claimed and awarded in civil cases.
These are (a) as of right and (b) conferred by Statute or Rules of Court or even equity. Category (a) includes interest by agreement of the parties and that recognized and established by trade practice or custom. This category of interest requires to be specifically pleaded and proved by evidence as a species of a special claim by a party before a Court can properly make an award in respect thereof. The claim for pre-judgment interest falls into this category and the law is firmly settled that a party is only entitled to an award if the claim is pleaded and proved by sufficient evidence of entitlement to it. See: Alfontrin Limited vs. Attorney General of Federation (1996) 9 NWLR (475) 634, NIDB vs. De-Easy Life Electrical (1999) 4 NWLR (597) 8, D.P.M.S Limited vs. Larnite (2000) 5 NWLR (655) 138, Anunobi vs. Obiwelozo (2003) 12 NWLR 835) 617.

Category (b) interest is ordinarily provided for by statute or the Rules of Court or equity and so does not have to be specifically pleaded and proved beyond the provisions of the relevant statute or Rules of Court. The claim for post judgement interest in a case belongs to this category and is usually regulated by the rules of a Court. See: Ogbodu vs. Quality Finance Limited (2003) 6 NWLR (815) 147, United Bank Plc vs. Nwadike (2009) 4 NWLR (1131) 352, G.K.F.I. vs. NITEL (2009) 15 NWLR (1164) 344.”Per GARBA, JCA read in context

9. Award of Interest – Instances where a Plaintiff will be entitled to interest on a monetary claim

Circumstances under which interest may be awarded on a monetary claim

“Put another concise way, the paragraphs say that the Appellant had held over the 1st Respondent consideration for the shares and refused to allot the shares or refund it to him. On the basis of these facts, the Tribunal relied on the law as stated in Adeyemi vs. Lan & Baker Nigerian Limited (2007) 7 NWLR (663) 48 that a plaintiff is entitled to interest in a claim for the return of money arising from a commercial transaction where the defendant has held the money of the plaintiff for some time.

The position of the law on the point is fairly settled that where a case has been brought on commercial matters and where in ordinary commercial practice, money would, on the facts, have been paid some time ago, it ought to carry interest. The basis of the award of interest is that the plaintiff has been kept out of his money for the period of the deposit with the Defendant who had the use of it to himself for which he ought to compensate the plaintiff accordingly. It is said that in such situations, even if or where the interest is not claimed specifically in the writ of summons and statement of claim, a Court can award interest as a consequential order. See N.G.S. vs. N.P.A. (1990) 1 NWLR (129) 741, Kano Text Printers vs. Tukur (1999) 2 NWLR (589) 78.”Per GARBA, JCA read in context

10. Award of Interest –

Requirements of the law as regards award of pre-judgment interest

“I have before now, stated and demonstrated that the 1st Respondent had pleaded the facts which show his entitlement to the claim for interest, but there are no facts and evidence which support the claim for “pre-judgment interest at the rate of 21% per annum compounded.” In other words, there are no material facts and evidence to support and show the entitlement of the 1st Respondent to the rate of 21% for pre-judgment interest.

Once again, the claim for pre-judgment is a species of a special claim which required to be pleaded and proved by evidence and so cannot be granted as a matter of course or even on pleadings alone. See the case of G. A. Ferro & Company Limited vs. H. C. Nigeria Limited (2011) 13 NWLR (1265) 592 @ 608 (cited in the Appellant’s brief) where the Supreme Court stated the law that: – “The relevant facts upon which a claim for pre-judgment is based must be pleaded because facts not pleaded goes to no issue. In addition to the requirement of pleadings the relevant facts, the Plaintiff must adduce evidence at the trial in proof of the relevant facts, where there is no evidence at the trial in proof of the facts then the pleadings are deemed abandoned.”

In the absence of the required material facts and evidence in proof of the claim for pre-judgment interest at 21% per annum, the claim must fail in law and the 1st Respondent is not entitled to the award of pre-judgment interest at the rate claimed.” Per GARBA, JCA read in context


LEAD JUDGMENT DELIVERED BY GARBA, JCA


This appeal is against the judgment of the Investment of Securities Tribunal, sitting at Lagos, delivered on the 31st of July, 2013 in the 1st Respondent’s action against the Appellant and the 2nd Respondent for the refund of money paid for shares issue of the Appellant through the 2nd Respondent. The action was commenced before the Tribunal by way of an appeal against the decision of the Investment and Securities commission which was later turned into an originating application. At the end of the trial, during which the 1st Respondent and the Appellant each called a single witness in support of their respective cases, the Tribunal entered the aforementioned judgment in favour of the 1st Respondent. Not satisfied with the decision of the Tribunal, the Appellant filed a Notice of Appeal dated the 6th of August, 2013, against it. It is at pages 375-378 of the Record of Appeal.

Also dissatisfied with some aspects of the said judgment, the 1st Respondent filed a Notice of Cross Appeal dated the 16th of May, 2013 which is at pages 381-383 of the Record of Appeal. The 2nd Respondent also filed a Notice of Appeal dated the 13th of August 2013 against the judgment and it is at pages 379-380 of the Record of Appeal.

In line with the requirements of the Rules of the Court, learned counsel for the parties to the appeal settled and filed briefs of argument in support of the respective positions in the appeal as follows: –

(a) Appellant’s brief was dated and filed on the 23rd of October, 2013;
(b) Respondents’ Amended brief filed on 20th of May, 2015;

(c) The 1st Respondent/Cross Appellants’ brief was dated and filed on the 19th of June, 2015;
(d) The Appellant’s Reply to the Respondent brief filed and on the 20th of November, 2013 was dated and filed on the 17th of December, 2013.

There is no record that the 2nd Respondent had filed any brief in the appeal.

Two (2) issues were identified and are said to arise for determination in the Appellant’s brief as follows: –

“ISSUES FOR DETERMINATION

(I) Whether having regard to the totality of the evidence before the Honourable Tribunal, the Honourable Tribunal was right in entering judgment for the 1st respondent herein in terms of the judgment delivered on July 31, 2013. Distilled from grounds 1, 2, 3 and 5 of the grounds of appeal.

(II) Whether the Honourable Tribunal was right when it awarded pre-judgment interest on the judgment sum at the rate of 5% above the Central Bank of Nigeria Monetary Policy Rate (MPR) from 18th April, 2006 till the liquidation of the judgment sum.” Distilled from ground 4 of the grounds of appeal.”

These issues were adopted for decision in the appeal at paragraph 3.0 on page 5 of the 1st Respondents/Cross Appellant’s brief and a sole issue was raised and submitted to the Court for decision in respect of the cross appeal. It is in the following terms:-

“3.1.0 The issue one for determination based on grounds one, two, three and five of the 1st Cross respondent/Appellant’s Notice of Appeal is whether the Lower Court is right in the judgment delivered on July, 31, 13 in favour of the Cross Appellant/1st Respondent after the Lower Court’s conclusion that the 1st and 2nd Cross Respondents/Appellant did not discharge the burden of proof that they (1st and 2nd Cross Respondent/Appellant) allotted the 1st Cross Respondent/Appellant’s 500,000 ordinary shares of N1.00 each to the Cross Appellant/1st Respondent.”

I would determine the appeal on the basis of the issues raised by the learned counsel for the parties.

Appellant’s Issue 1:

It was submitted for the Appellant that the Tribunal was wrong to have held that there was no evidence of acceptances of the offer for subscription made by the 1st Respondent or allotment of shares by the Appellant and 2nd Respondent to the 1st Respondent. The evidence of the Appellant at page 301 of the Record was referred to along with documentary Exhibits tendered in support of the allotment of the shares subscribed for by the 1st Respondent. Exhibit “AWH” is said to be evidence that the 1st Respondent is a holder of 1,000,000.00 units of shares in the Register of the Appellant and that at both the Securities and Exchange Commission and at the Tribunal, the case of the 1st Respondent was predicated on non-receipt of the shares certificate and not allotment of the shares which was established by Exhibit “AWE” “AWI” “AWF” and ‘AWG”. It is also the case of the Appellant that Exhibit “AWF” shows that the share certificate was posted to the 1st Respondent and was not returned unclaimed, but it failed to fill an indemnity form for replacement or creation of a CSCS account when it was requested to do so by the Appellant. In further argument, it was submitted that the contract for the allotment of shares did not provide for recession and that the parties are bound by the terms of the contract. Wema Bank Plc v. Osolarin (2008) 10 NWLR 150 @ 76, Agbereh vs. Munrah (2008) 2 MJSC, 134 and Investment Textile Industries Limited vs. Aderemi (1999) 6 SC (Pt.1) 1 were cited for the submission. According to counsel for the Appellant, there was sufficient evidence to discharge the burden of proof on the Appellant that the 1st Respondent was not only allotted the shares subscribed for, but that its name was also on the Appellant’s Register as the holder of such shares, which position was said to have been supported by the Tribunal in the judgment at page 345, lines 8-13 of the Record of Appeal. Sections 83 and 91 of the Companies and Allied Matters Act (CAMA) were referred to and it was argued that the judgment of the Tribunal for the refund of the sum for the subscription of the shares allotted to the 1st Respondent cannot be supported by the weight of the evidence before it and so perverse.

For the 1st Respondent, it was submitted on the issue that there was no evidence of allotment of shares to the 1st Respondent or its name being on the Appellant’s Register since Exhibit “AWH” is an unsigned and undated statement of account of share holding and so is evidentially valueless and worthless. In addition, it was submitted that the case of the 1st Respondent has been failure by the Appellant to allot the shares subscribed for, to issue and deliver the share certificate and to refund the sum paid as consideration for the said shares. It is the contention of the 1st Respondent that there was no valid contract between the parties since the Appellant did not allot the shares subscribed for and no share certificate was issued to the 1st Respondent and so the offer to subscribe did not constitute a contract. Page 345, lines 8-20 of the Record of Appeal was referred to and it was argued that the Tribunal did not say that there was evidence of the issue of a share certificate in Exhibit “AWH’. The Tribunal is said to be right in its judgment which is supported by the evidence before it.

By the Amended Originating Application dated the 15th of October, 2012, which is at page 100-103 of the Record of Appeal, the claims and prayers by the 1st Respondent against Appellant and 2nd Respondent were as follows: –
“1.01 That the 1st and 2nd Respondents shall jointly and severally refund the Applicant’s subscription sum of N3, 000,000 (Three Million Naira) being the consideration the Applicant paid to the 1st Respondent through the 2nd Respondent for the 1st Respondent’s 500,000 ordinary shares of N1.00 each at N6.00 per share on 31st March, 2006.

(b) That the 1st and 2nd Respondents shall pay pre-judgment interest at an interest rate of 21% per annum compounded on the claim as in 1.01(a) above with effect from 18th April 2006 (when value passed from the Applicant to the Respondent) to the date of judgment in this case.

(c) The 1st and 2nd Respondent shall jointly and severally pay post-judgment interest at 18% per annum compounded on the claim and interest as in paragraph 1.01(a) and (b) above from the date of judgment until the date of eventual payment.

(d) The 1st and 2nd Respondent shall jointly and severally pay the Applicant’s costs of instituting and prosecuting this case.

(e) The Securities and Exchange Commission (SEC) should be deleted as a party in this application as there is no claim against the SEC.”

In brief, the evidence adduced in support of the claims and prayers is that the 1st Respondent applied and paid for the allotment of N500,000 shares of the Appellant at N6.00 per share, but that the Appellant and the 2nd Respondent failed, neglected and/or refused to allot the said shares or refund the three (3) Million Naira (N3,000,000.00) consideration received for the shares.

The Appellant’s case, as per its Reply Acknowledging receipt of the Notice of Appeal dated 19th of September, 2012, is that by the processes attached to the 1st Respondent’s application, it had acknowledged that the shares applied and paid for, were allotted by the Appellant and that the 1st Respondent’s only complaint in the appeal was on non-receipt of the share certificate in respect of the shares allotted.

Because the Appellant whose shares are the subject of the dispute before the Tribunal, is a company registered or incorporated under the Companies and Allied Matters Act (CAMA), Section 125 provides for allotment of shares of companies during private or public offers. The provisions are as follows: –

“Without prejudice to the provisions of Sections 566 to 574 of this Act, the following provisions shall apply in respect of an application for an allotment of shares issued by a company: –

(a) In the case of a private company or public company where the issue of shares is not public, there shall be submitted to the company a written application signed by the person wishing to purchase shares and indicating the number of shares required;

(b) In the case of a public company, subject to any conditions imposed by SEC where the issue of shares is public, there shall be returned to the company a form of application as prescribed in the company articles, duly completed and signed by the person wishing to purchase such shares;

(c) Upon receipt of an application, a company shall, where it wholly or partially accepts the application, make an allotment to the applicant and within 42 days after the allotment notify the applicant of the fact of allotment and the number of shares allotted to him.”

Under the clear provisions of paragraph(c), a company which received applications from persons wishing to purchase its shares, is under a duty to, where it accepts the application either wholly or partially, to make an allotment to the applicant and within 42 days of the allotment, notify the applicant of the fact of the allotment and the number of shares allotted. The contract for the sale and purchase of shares of a company is concluded and validly entered into between an applicant and the company when the company accepts an application and allot the shares to the applicant. In this regard; Section 126 of the CAMA provides thus: –

“An allotment of shares made and notified in accordance with the provisions of Section 125 of this Act shall be an acceptance by the company of the offer of the Applicant to purchase its shares and the contract takes effect on the date on which the allotment is made by the company.”

In the present appeal, the parties, i.e. the 1st Respondent as applicant and the Appellant, as the company whose shares were applied for, are in agreement that the Appellant had by private placement, called for application for purchase of its shares and that the 1st Respondent had applied to purchase 500,000 shares of N1.00 at N6.00 which application was accepted by the Appellant in consideration of three (3) Million Naira (N3,000,000.00) paid by the 1st Respondent. The point of dispute is whether or not, the Appellant had complied with the provisions of Section 125(c) above by allotting the shares paid for by the 1st Respondent and duly notified them of the allotment as well as the number of the shares allotted.

The fulcrum of the case before the Tribunal, as borne out by the application and affidavit in support of thereof, is that the Appellant did not make the allotment of the shares paid for, issue a share certificate and did not refund the consideration received for the shares applied for. See paragraphs 4, 8 and 9 of the Amended Originating Application as well as paragraphs 5, 6, 7 and 8 of the summary of the Evidence of the Applicant’s witness deposed to by the 1st respondent on the 15th of October, 2012. Copies of the relevant documents in respect of the application for the shares and the petition by the 1st Respondent to the Securities and Exchange Commission (SEC) were attached to the summary of evidence and admitted in evidence at the trial when the evidence was adopted.

On its part, the case of the Appellant is that the processes put in evidence by the 1st Respondent show an acknowledgment by him that he has been notified of the allotment of the 500,000 shares of the 1st Respondent which were subsequently sub-divided into 1,000,000 shares of 50 kobo each and that he is a shareholder in the 1st Respondent. According to the Appellant, the 1st Respondent’s “grouse is basically about non-receipt of share certificate”. See paragraph 3(ii) – (iv) of the Reply Acknowledge in receipt of Notice of Appeal turned into Originating Application dated 19th of September, 2012.

In its judgment, the Tribunal had resolved the point of dispute on whether or not there was allotment of shares and notification of same by the Appellant as follows: –

“In discovering whether or not an allotment was made, it is needful to determine whose responsibility it is to allot shares. Section 88 of the Investments and Securities Act (ISA) 2007, as rightly submitted by the Applicant, places this responsibility on the shoulders of the Issuer and the Issuing House.

Consequently the onus is on the 1st and 2nd Respondent (Issuer and Issuing Houses respectively) to show from credible evidence that allotment was indeed made to the Applicant as they have alleged.

Moreover by the fact of the assertion of allotment made by the 1st and 2nd Respondents, the said issue has become a fact in issue requiring proof by credible evidence. See AGBI V. OGBEH (2006) 11 NWLR (Part 990) page 65 at page 133 paragraph G, where the Court of Appeal held: –

“By virtue of Section 135(1) of the Evidence Act 2011, whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

Accordingly the onus is on the 1st and 2nd Respondents to show by credible evidence that allotments were made pursuant to the Applicant’s offer for subscription in the 1st Respondent’s 2006 private placement.

In their attempt to traverse the allegation of non allotment of the 1st Respondent shares, the 1st Respondent in paragraph 3(ii) of its reply to the Originating Application stated:

Paragraph 3(ii):

That by the processes filed by the Applicant, the Applicant acknowledged that it has been communicated to the Applicant that an allotment of 500,000 units of 1st Respondent’s shares to the Applicant which 500.000 units of share was subsequently subdivided into 1,000,000 shares of 50k each.

The 2nd Respondent in the same vein in paragraph 3 of its Respondent’s reply to the Originating Application stated as follows: –

Paragraph 3:

The 2nd Respondent denies paragraphs 8.1 – 8.4 … of the summary of evidence and puts the Applicants to the strictest proof of same

Paragraph 7:

In the course of investigations the Commission also received a letter dated 1st November, 2010 from Afribank Registrars Limited wherein they claimed to have posted the share certificate to the Applicants.

These traverses by no means directly addressed the question whether or not an allotment was indeed made, and unfortunately no other person(s) are statutorily required to make an allotment in the circumstances of this suit other than the 1st and 2nd Respondents. It is therefore amazing whilst they appear to have difficulties at directly or frontally traversing the Applicant’s claim on this point.

Furthermore the Respondents also seek to rely on Exhibit AWI a letter written by SEC to the Applicant informing him that their investigation reveals that they were allotted the 500,000 units of shares of the 1st Respondent at N1.00 per share which was later subdivided into 1,000,000 units of shares at 50k per share.

Though the Applicant has posited and rightly too that the onus is on the Applicant to prove his claim before this Honourable Tribunal in line with the requirements of Section 131(1) and (2) of the Evidence Act 2011. It must be borne in mind however that the Applicant on this point is merely making a negative assertion to wit; that he was not allotted shares subscribed for.

It is not the law that the adverse party should prove a negative assertion, rather the burden is on the party who makes a positive assertion to prove the assertion by evidence. Vulcan Gasses Limited v. Gesellschaft F. Industries (2001) 9 NWLR (Part 719) 610 at 667.

Accordingly there is no duty on the Applicant to prove that he was not allotted shares in the subscribed 1st Respondent’s 2006 private placement, rather it is squarely the duty of the 1st and 2nd Respondents so to do, and we are not persuaded that this burden has been discharged.

Having failed in our considered view to discharge this burden we are not convinced that the 1st and 2nd Respondents accepted the offer for subscription made by the Applicant or that they allotted unto the Applicant the subscribed 500,000 units of the 1st Respondent’s shares for N1.00 at N6.00 per share.

What is more the 1st and 2nd Respondents are pursuant to Section 125 of the Companies and Allied Matters Act 2004 as amended are duty bound where it wholly or partially accepts an application for subscription of shares, make an allotment to the Applicant and within 42 days after the allotment notify of the fact of allotment and the number of shares allotted to him.

We found no reason to believe that, that was the case in the matter.”

This exposition of the law and the conclusion reached by the Tribunal is unassailable from the cases put forward by the parties on whether in fact and in law, there was an allotment of the shares applied and paid for by the 1st Respondent, from the Appellant. By the combined provisions of Sections 88 of the Investment and Securities Act (ISA), 2007 and 125(c) of the CAMA, the legal duty and obligation to allot shares to applicants such as the 1st Respondent whose application and consideration for the shares were admittedly received by the Appellant and 2nd Respondent and issue notification of the allotment within 42 days, was on the Appellant. Since the 1st Respondent has denied receipt of any notification of allotment of the shares from the Appellant and 2nd Respondent, they bear the legal burden to prove that they in fact and deed complied with the provisions of the Laws which impose a statutory duty on them, by adducing and placing before the Tribunal, sufficient and material evidence of the allotment and the due notification thereof to the 1st Respondent. The mere statement that the processes filed by the 1st Respondent along with his application show acknowledgement of the allotment of the shares of the Appellant does not constitute evidence of compliance and with and discharge of statutory duty imposed on the Appellant and 2nd Respondent in respect of allotment of shares.

Although both the Appellant and the 2nd Respondent have attempted to deny the claims and prayers of the 1st Respondent, none of them has positively suggested that they had duly complied with the provisions of the SEC and CAMA on the allotment of the shares to the 1st Respondent. There was no credible and sufficient evidence adduced and placed before the Tribunal on the fact that the Appellant accepted the 1st Respondents application either wholly or partially, allotted shares to him and notified him of the allotment within the time stipulated by the law, or at all, in order to bring about or in existence, a valid contract for the sale and purchase of the said shares as provided under Section 126 of CAMA.

Exhibits “AWF”; a letter to the 1st Respondent from the Appellant’s Registrars to which a statement of his shares holding was said to be attached and in which a certificate was said to have been posted to him and returned as unclaimed, does not constitute credible evidence of compliance with Section 125(c) of CAMA.

The undated Exhibit ‘AWF’ was written in response or reply to the 1st Respondent’s letter of 20th of September, 2010 which was received by the Registrars on the 27th of October, 2010, as indicated on the face of the Exhibit.

The Exhibit did not notify the 1st Respondent of the allotment of the shares he applied and paid for but only purport to state his shareholding and requesting him to fill an indemnity form for replacement of certificate which was said to have been posted to him. The Exhibit was written in 2010, four (4) years after receipt of the 1st Respondent’s application and consideration for the shares by the Appellant and 2nd Respondent.

None of the documents admitted in evidence as Exhibits before the Tribunal, prima facie shows compliance with the provisions of the law on the purported allotment of shares by the Appellant to the 1st Respondent or in fact, the actual allotment and notification thereof to the 1st Respondent.

The Tribunal was therefore right to have held that there was no evidence and reason to believe that there was such allotment and notification to the 1st Respondent as required by law for a valid contract for the sale and purchase of the shares in question to have been duly entered between the parties. In the result, I find no merit in the Appellant’s arguments on the issue and it is resolved against the Appellant.

Appellant’s Issue 2

“Whether the Honourable Tribunal was right when it awarded pre-judgment interest on the judgment sum at the rate of 5% above the Central Bank of Nigeria Monetary Policy Rate (MPR) from 18th April, 2006 till the liquidation of the judgment sum.” Distilled from ground 4 of the grounds of appeal.

The Appellant’s submissions on the issue are that the Tribunal was wrong to have awarded interest that was not claimed and that the award of interest at 5% above the Central Bank Monetary Policy Rate (MPR) from 18th of April, 2006 until final liquidation of judgment sum, is without basis since the claim by the 1st Respondent was limited to interest at the rate of 21% per annum and post judgment interest at 18%.

Relying on Edebiri vs. Edebiri (1997) 4 NWLR (498) 165 @ 180, Etco Nigeria Limited vs. G & T Investment Limited ( 11) 3 NWLR (1234) 302 @ 321 and Stabini Vision vs. Metalum Limited (2008) 9 NWLR (1092) 416 @ 433 among other cases, it was submitted that the 1st Respondent was required to plead and prove pre-judgment interest in order to be entitled to the award. It was contended that there was no pleading and evidence to support the award of pre judgment interest by the Tribunal and that Section 96(1) of the (ISA) on the maximum period within which surplus monies due to subscribers shall be returned, does not apply to the case.

For the 1st Respondents, it was submitted that since the Appellant did not challenge the rate of interest claimed, the Tribunal was right to have made the award in the judgment and that the case of Edebiri vs. Edebiri is not applicable to the case. It is also the argument of learned counsel for the 1st Respondent that due to the absence of exact rate of interest in ISA 2007, the Tribunal was right to have applied Section 96(1) to award interest in the case since the rate is lower than that claimed by the 1st Respondent. A chart to support the application of Section 96 of ISA, 2007 was set out in the brief and it was maintained that it was correctly applied by the Tribunal to award the interest on the judgment sum. Cases cited by the Appellant on the award of the interest are said not to be applicable because there are provisions for the award in ISA, 2007 and it was argued further that facts were pleaded for the award which were not challenged.

The Court is urged to uphold the award by the Tribunal.

The law is generally known that there are two (2) types of interest that can be claimed and awarded in civil cases. These are (a) as of right and (b) conferred by Statute or Rules of Court or even equity. Category (a) includes interest by agreement of the parties and that recognized and established by trade practice or custom. This category of interest requires to be specifically pleaded and proved by evidence as a species of a special claim by a party before a Court can properly make an award in respect thereof. The claim for pre-judgment interest falls into this category and the law is firmly settled that a party is only entitled to an award if the claim is pleaded and proved by sufficient evidence of entitlement to it. See: Alfontrin Limited vs. Attorney General of Federation (1996) 9 NWLR (475) 634, NIDB vs. De – Easy Life Electrical (1999) 4 NWLR (597) 8, D.P.M.S Limited vs. Larnite (2000) 5 NWLR (655) 138, Anunobi vs. Obiwelozo (2003) 12 NWLR 835) 617.
Category (b) interest is ordinarily provided for by statute or the Rules of Court or equity and so does not have to be specifically pleaded and proved beyond the provisions of the relevant statute or Rules of Court. The claim for post judgement interest in a case belongs to this category and is usually regulated by the rules of a Court. See: Ogbodu vs. Quality Finance Limited (2003) 6 NWLR (815) 147, United Bank Plc vs. Nwadike (2009) 4 NWLR (1131) 352, G.K.F.I. vs. NITEL (2009) 15 NWLR (1164) 344.

It may be remembered that the 1st Respondent’s claim for interest on the sum paid as consideration for the purchase of the Appellant’s shares is contained in claims 1.01(b) and

(c) of the Amended Originating Application before the Tribunal. As a reminder, they are as follows: –

(b) That the 1st and 2nd Respondents shall pay prejudgment interest at an interest rate of 21% per annum compounded on the claim as in 1.01(a) above with effect from 15th April, 2006 (when value passed from the Applicant to the Respondent) to the date of judgment in this case.

(c) The 1st and 2nd Respondent shall jointly and severally pay post-judgment interest at 18% per annum compounded on the claim and interest as in paragraph 1.01(a) and (b) above from the date of judgment until the date of eventual payment.

These claims are the averments of the 1st Respondent on the interest rates he sought from the Tribunal. Except for the mention of pre and post judgment interest in paragraph 97 of the summary of the evidence of the 1st Respondent there is no evidence of the entitlement to the rates of the interest claimed in the above pleadings.

The Appellant had denied, generally, the claim for the sum paid by the 1st Respondent for its shares and did not make any reference to the claim for interest in its Reply acknowledging receipt of notice of appeal.

The decision by Tribunal on the claim for interest by the 1st Respondent was that: –

“Moreover a careful consideration of the Applicant’s Originating Application as well as the summary of evidence of the Applicant’s readily reveals that relevant facts upon which the claim for pre-judgment interest is based was indeed pleaded.

See paragraphs 4 (a)-(d) of the amended Originating Application as well as paragraphs 8(1)-(4) of Applicant’s summary of evidence.

We are thus persuaded that sufficient case has been made out by the Applicant for the award of interests in this instant suit.”

The basis of the above decision are said to be paragraphs 4(a)-(d) of the Amended Originating Application and 8(i)-(4) of the summary of evidence. Briefly, these paragraphs set out the facts on the 1st Respondents application and payment for the shares of the Appellant and that the Appellant did not, failed, neglected and/or refused to allot the shares to him or refund the sum paid for the shares. Put another concise way, the paragraphs say that the Appellant had held over the 1st Respondent consideration for the shares and refused to allot the shares or refund it to him. On the basis of these facts, the Tribunal relied on the law as stated in Adeyemi vs. Lan & Baker Nigerian Limited (2007) 7 NWLR (663) 48 that a plaintiff is entitled to interest in a claim for the return of money arising from a commercial transaction where the defendant has held the money of the plaintiff for some time.

The position of the law on the point is fairly settled that where a case has been brought on commercial matters and where in ordinary commercial practice, money would, on the facts, have been paid some time ago, it ought to carry interest. The basis of the award of interest is that the plaintiff has been kept out of his money for the period of the deposit with the Defendant who had the use of it to himself for which he ought to compensate the plaintiff accordingly. It is said that in such situations, even if or where the interest is not claimed specifically in the writ of summons and statement of claim, a Court can award interest as a consequential order. See N.G.S. vs. N.P.A. (1990) 1 NWLR (129) 741, Kano Text Printers vs. Tukur (1999) 2 NWLR (589) 78.

In the present appeal, the relationship between the 1st Respondent and the Appellant and the 2nd Respondent on the sale and purchase of the Appellant’s shares was/is purely a commercial one and if the application for the purchase of the shares was not accepted in full or accepted partially, then the consideration paid for the unaccepted part would be expected to have been refunded, returned or paid back to the 1st Respondent after the allotment exercise by the Appellant. With the finding that there was no evidence of allotment by the Appellant to the 1st Respondent of the shares applied and paid for by him, it means that there was no evidence that the application by or offer by the 1st Respondent to purchase the Appellant’s shares was accepted by it and so the 1st Respondent was entitled to have been paid back his money which he paid for the said shares immediately after the allotment exercise by the Appellant. The cases presented by both parties show that the money was not paid back or refunded by the Appellant to the 1st Respondent for the different and conflicting reasons set out by them. On the general principle stated above, the 1st Respondent is entitled to have or be paid interest on the sum of money which was withheld by the Appellant and kept out of the use of the 1st Respondent for some time. However, because the 1st Respondent has claimed a particular rate of interest against the Appellant, he has a duty to plead sufficient facts and produce satisfactory evidence in proof of the rate claimed. Perhaps, I should point out here that the proof required is not of entitlement to claim interest on the sum paid to the Appellant, but rather, the proof required is as to the entitlement to the specific rate of interest claimed in the peculiar circumstances of the case. ETCO Nigeria Limited vs. A & T Investment Limited (supra). Stabilim Visioni vs. Metalum Limited (supra).

I have before now, stated and demonstrated that the 1st Respondent had pleaded the facts which show his entitlement to the claim for interest, but there are no facts and evidence which support the claim for “pre-judgment interest at the rate of 21% per annum compounded.” In other words, there are no material facts and evidence to support and show the entitlement of the 1st Respondent to the rate of 21% for pre-judgment interest.

Once again, the claim for pre-judgment is a species of a special claim which required to be pleaded and proved by evidence and so cannot be granted as a matter of course or even on pleadings alone. See the case of G. A. Ferro & Company Limited vs. H. C. Nigeria Limited (2011) 13 NWLR (1265) 592 @ 608 (cited in the Appellant’s brief) where the Supreme Court stated the law that: –
“The relevant facts upon which a claim for pre-judgment is based must be pleaded because facts not pleaded goes to no issue. In addition to the requirement of pleadings the relevant facts, the Plaintiff must adduce evidence at the trial in proof of the relevant facts, where there is no evidence at the trial in proof of the facts then the pleadings are deemed abandoned.”
In the absence of the required material facts and evidence in proof of the claim for pre-judgment interest at 21% per annum, the claim must fail in law and the 1st Respondent is not entitled to the award of pre-judgment interest at the rate claimed.

The question that arises here is whether the Tribunal awarded the 1st Respondent the claim for pre-judgment interest at the rate of 21% per annum. The award of interest made by the Tribunal in its judgment is in the following terms:-

“The 1st and 2nd Respondents are hereby ordered to jointly and severally pay interest at the rate of 5% above the Central Bank of Nigeria Monetary Police Rate (MPR) from 18th April, 2006 (when value passed from the Applicant to the Respondent) till the full liquidation of the judgment sum.”

The reasoning for the award as contained in the judgment is that:-

“However a more important issue which has arisen for consideration in view of the above is the question of the rate of interests applicable in instances of returned monies. Section 96(2) and (3) of ISA 2007 is very instructive in this regards and provides as follows:-Section 96(2) of ISA 2007. The Commission may subject to Subsection (3) of this Section, prescribe the rate of interest payable to subscribers whose surplus monies are held bound the period prescribed pursuant to Subsection (1) of this Section. Section 96(3) Investments and Securities Act, 2007: – The interest due and payable under Subsection (2) of this Section shall not be less than one percent above the Central Bank of Nigeria minimum rediscount rate and the Commission may, in addition, require a company which fails to honour this obligation under this Subsection to pay a higher rate of interest on the surplus monies. Having found that there was no allotment made by the Respondents for the consideration sum of N3,000,000 obviously because surplus money due to the Appellant which ought to have been return with interests.”

Simply put, the reasoning is that because of the finding that the Appellant did not accept the 1st Respondent’s application for the shares paid for by him and did not allot the shares, his consideration for the shares which was received by the Appellant became surplus monies due to subscribers which ought to be returned to them by the Appellant in accordance with the provisions of Investments and Securities Act, 2007, which regulate such transactions. The rate of the interest awarded is predicated and based on the provisions of Section 96(2) and (3) of Investments and Securities Act, 2007, which were set out in the judgment. Learned Counsel for the Appellant has argued that Section 96(1) of the ISA has no bearing on or with the suit as the issue before the Tribunal was not surplus monies. He did not elaborate on the point. However. it is not disputed that the transaction between the Appellant and the 1st Respondent – for the sale and purchase of the Appellant’s share is one governed and regulated by the provisions of ISA 2007, among other, relevant statutes. The rights and duties or obligations of the parties in such transaction are specifically provided for therein and they are bound to comply with the provisions in the conduct of the transactions. All the provisions of ISA, 2007 are therefore relevant, material and applicable to such transactions whether or not the parties make reference to them and the Tribunal is entitled and has a duty to apply the relevant provisions in its determination of any dispute between the parties arising from the transaction. See Nwosu vs. Imo State Environmental Sanitation Agency (1990) 2 NWLR (135) 688 @ 753.

I found under Issue 1 that the Tribunal was right that there was no evidence of acceptance of the 1st Respondent’s application and allotment by the Appellant of the share he paid for and by the provisions of Section 96(1) of ISA, 2007, the money he paid to the Appellant for the shares became, in the circumstances, surplus monies received by the Appellant from subscribers for the purchase of shares which ought to have been paid back by the Appellant to them as stipulated by the provisions. The provisions of Section 96(1) (2) and (3) of Investments and Securities Act, 2007, are material and relevant to the case of the 1st Respondent and the Tribunal is right to have referred to and relied on them in respect of the rate of interest to be awarded to a subscriber, such as the 1st Respondent whose money was held over by the Appellant after rejecting his offer to purchase its shares, contrary to the provision of the law. It must be pointed out that the rate of interest on such withheld money and the period when it becomes due are set out in the statute, i.e. ISA, 2007, which bind both the parties and the Tribunal. By the provisions of Section 96(2) and (3) of Investments and Securities Act, 2007, the commission is to determine the rate of interest which shall not be less than one percent above the CBN MRR and the commission may direct a company to pay a higher rate of interest on surplus money, in appropriate situations. As stated above, the 1st Respondent’s money held by the Appellant was surplus money that ought to have been returned to him as a subscriber whose application was not accepted by the Appellant in accordance with the provisions of Section 96(1). For failure by the Appellant to comply with the provisions of subsection (1), the rates of interest stipulated and provided for in Subsections (2) and (3) become applicable to such money and the Tribunal is right once more, to have applied the provisions to the case. There was no requirement for the 1st Respondent to have pleaded and prove the entitlement to the rate of interest stipulated or provided for in the statute in order to be entitled to the award. The case is an exception to the general rule of practice that pre-judgment interest must be pleaded and proved by evidence before it can be awarded by a Court, as stated and restated in the cases cited in the Appellant’s brief on the point.

In addition, the case is also an exception to the general principle that a Court has no authority or power to grant to grant to a party more than or what was not claimed.

This is because the entitlement and right to the rate of interest is provided for by statute and the Court has the power and duty to apply and ensure compliance with the provisions of a statute that is relevant to the determination of the case before it without the need for prompting from the parties. Nwosu vs. Imo State Environment Sanitation Agency (supra).

Learned Counsel for the Appellant has also argued that the award of pre-judgment is ordinarily limited to the date of judgment.

It must be noted that the case of the 1st Respondent is not an ordinary case of a recovery of debt or money had, but a peculiar case arising from a transaction specifically and specially provided for and regulated by statute. Both the Commission and Tribunal were specially created and established by statutes to consider and determine complaints and deal with disputes that may arise from such transactions, applying the relevant special statutes enacted to regulate them. The cases handled by the Commission and the Tribunal are therefore special, and different from ordinary civil matters of debt recovery and can be said to be sui generis in relation to such matters.

The award of interest by the Tribunal did not indicate specifically that there shall be pre-judgment or post judgment rates on the sum to be refunded to the 1st Respondent. However, by the terms of the award; from the 1st April, 2006, until the full liquidation of the judgment sum, leave no doubt that the award encompasses both.

This is in line with the community purport of the provisions of Section 96( ), (2) and (3) of Investments and Securities Act (ISA), 7, which provide for return of surplus monies to subscribers by the Appellant and within stipulated period and the consequences of the failure to honour the obligation by it. It is worthy of note again, that the provisions are for the return of surplus monies paid by subscribers to them and not for payment or re-payment of a debt owed to a credit or by a debtor. Therefore, the applicable rate of interest payable under the law applies when or from the time the surplus monies became due to be paid back or returned to the subscribers and continue to run until and up to the time the full surplus monies was/were returned or paid back to the subscribers. The rate of such interest does not end because a complaint, appeal or originating application was made to the Commission or the Tribunal as the case may be.

In particular, filing of the originating application by the 1st Respondent before the Tribunal did not automatically terminate or end the application of the rate of interest provided for under Section 96(2) and (3) until the surplus monies was fully returned or paid back by the Appellant to him. The award of the interest in terms of the judgment is, in the premises, supported by the provisions of Investments and Securities Act, 2007, and so right in law. In the above circumstances, the issue is without merit and resolved against the Appellant.

In the result, for lacking in merit, the appeal fails and is dismissed accordingly.

1st Respondent’s Cross Appeal:

The sole issue is whether the award of interest by the Tribunal without indication of interval of period it is to be computed, is right and unambiguous.

The arguments of the Cross Appellant are to the effect that failure or omission to state whether the rate of interest was to be computed on monthly or annual basis makes the award uncertain leading to different computation by the parties. The Court is invited to vary the terms of the award by the Tribunal to be “17% per annum compounded”.

In the Appellant’s Reply brief to the Respondent’s brief filed on 20th of November, 2013, the brief is said not to contain valid arguments in support of the cross appeal. That there is no valid cross appeal.

I should start a consideration of the issue by saying that, as stated at the beginning of the judgment, the Appellant’s Reply brief is in respect of the Respondent’s brief filed on 20th of November, 2013, which was not used and relied on by the 1st Respondent/Cross Appellant in the appeal.

As seen earlier, the Respondents adopted and relied on the 1st Respondent’s/Cross Appellant Amended brief dated the 19th of June, 2015. There is no record of an Appellant’s Reply brief to the said brief.

Now, the claim by the 1st Respondent for interest, both pre and post judgment, was at the rates claimed, per annum and before making the award, the Tribunal had made reference to the claims at page 350 of the Record of Appeal. Because the Tribunal could not award the interest at rates to be computed at different periods or intervals from that claimed by the 1st Respondent’s, the award of interest was to be calculated or computed per annum as claimed by the 1st Respondent. However, because the rate of the interest was awarded in line with the provisions of Investments and Securities Act, 2007 which did not provide for compound interest, the award of interest by the Tribunal, in the absence of specific order or specification, is simple interest on the sum to be refunded per annum. The Cross Appellant has not demonstrated that he is entitled to the award of compounded interest outside the provisions of Investments and Securities Act (ISA), 2007, on the surplus money to be returned to him by the Appellant.

In the result, the award of interest by the Tribunal shall, in terms of its judgment, be per annum, as claimed by the 1st Respondent. The cross appeal therefore succeeds partially to that extent only and fails on the other part of compound interest.

In the final result, for lacking In merit, the Appellant’s appeal is dismissed while the cross appeal succeeds partially and the award of interest by the Tribunal shall be computed per annum in terms of the judgment entered in favour of the 1st Respondent which are hereby affirmed.

There shall be costs of N200,000.00 in favour of the 1st Respondent to be paid by Appellant for the prosecution of the appeal.

GEORGEWILL, JCA

My noble lord MOHAMMED AWAL GARBA JCA., afforded in advance a draft copy of the lead judgment just delivered for my preview and I am in complete agreement with the lucid reasoning and inescapable conclusions reached therein.

My lords, looking at Exhibit AWF, undated as it is but, received on 27/10/2010 as endorsed on its face and considering the undisputed fact that the 1st Respondent’s application and payment for the Shares in the Appellant Company in the sum of N3, 000,000.00 was made by the 1st Respondent way back on 31/3/2006, can it be said that Exhibit AWF was in satisfaction of the stringent requirements of Section 125 (c) of the Company and Allied Matters Act, stipulating a 42 days period within which a Company shall notify an applicant of the allotment of shares upon acceptance of his application by the company? I certainly do not think so!

In law, the use of the word “Shall” as in Section 125(c) of CAMA was deliberate and it demands mandatory compliance. This is so because the word “shall” when used in an enactment denotes a mandatory requirement. It must be complied with to render such an act or process competent. It neither allows nor permits any other course of action. See Oraekwe V. Chukwuma (2012) 1 NWLR (Pt.1389) 159 @ p.200. In Ugwu & Anor. v. Ararume & Anor. (2007) 6 SC (Pt.1) 88, the Supreme Court in interpreting the meaning of the word “shall” when used in a Statute, had pronounced emphatically thus:

“Generally, when the word “shall” is used in a Statute, it is not permissive. It is mandatory. The word “shall” in its ordinary meaning is a word of command, which is normally given a compulsory meaning because it is intended to denote obligation.”

The Appellant having of its own free will accepted the application of the 1st Respondent and thus voluntarily entering into an agreement to allot shares in the Appellant Company as paid for the 1st Respondent, in law both it as well as the 1st Respondent were bound to honour the terms of their agreement and therefore, their relationship and subsequent disagreements if any must be resolved in accordance with the terms of their agreement and the applicable laws if any, as in the instant appeal the Company and Allied Matters Act as well as the Securities and Exchange Act. Thus even the Court cannot in that wise on its own determine what the terms of their agreement should be outside the terms as agreed upon by them. See Nwankwo V. E.D.U.S.U.A (2007) 5 NWLR (Pt.1024) 377 @p. 4 0. See also Larmie V. D.P.M.S. Ltd. (2005) 18 NWLR (Pt.985) 438; Nika Fishing Co. Ltd. V. Lavina Corp (2008) 16 NWLR (Pt.1114) 509; UBN Ltd. V Edamkwe (2005) 7 NWLR (Pt.926) 520.

Between the application and payment for the Shares by the 1st Respondent on 31/3/2006 and Exhibit AWF is indeed a whooping number of four years, far and above the 42 days as required by Section 125 (c) of CAMA for such allotments to be communicated to the 1st Respondent, which provision of the Statute is binding on the Appellant but was brazenly observed only in the breach. The Appellant had no justifiable reason for this breach as none was shown as correctly founded by the Court below and so admirably reasoned upon and affirmed in the lead judgment.

It is in the light of the above very brief comments of mine and for the fuller reasons as adroitly marshaled out in the lead judgment that I too hold that the appeal is devoid of any iota of merit and thus liable to be dismissed. I also dismiss it and shall abide by consequential orders made in the lead judgment, including the order as to cost.

OGAKWU, JCA

I am in entire agreement with, and do not desire to add to, the conclusions expressed by my learned brother, Mohammed Lawal Garba, JCA, in the judgment just delivered.

For the reasons therein contained, I concur in holding that the appeal is devoid of merit and is only deserving of a dismissal. With regard to the cross-appeal, I also agree that the cross-appeal succeeds in part as contained in the leading judgment. I abide by the order as to costs made in the leading judgment.