CORPORATE AFFAIRS COMMISSION V. MR.
GERSHOM DAVIS
CITATION: (2006) LPELR-11411(CA)
In The Court of Appeal
(Calabar Judicial Division)
On Thursday, the 30th day of November, 2006
Suit No: CA/C/19/2005
Before Their Lordships
CHRISTOPHER MITCHELL
CHUKWUMA-ENEH
N. S. NGWUTA
M. A. OWOADE
Justice, Court of Appeal
Justice, Court of Appeal
Justice, Court of Appeal
Between
CORPORATE AFFAIRS
COMMISSION
Appellant
And
MR. GERSHOM DAVIS
(Liquidator of Calabar
Cement Co. Ltd.)
RATIO DECIDENDI
1
Respondent
1 ADMINISTRATIVE LAW - PREROGATIVE
REMEDIES: Whether the prerogative orders
of certiorari and prohibition can lie against
administrative tribunals or an individual public
officer performing a judicial function
"Certiorari and prohibition, accordingly, lie not
only against the ordinary inferior courts of law
but also against administrative tribunals, or
against an individual public officer performing
a judicial or quasi-judicial function." Thus it
lies
against
an
administrative
officer
functioning as a statutory tribunal reviewing
native court proceedings, but not where the
function is administrative or executive. Also
merely ministerial or legislative acts cannot
be reviewed, by means of these orders.
Uwaifor, JSC, had the opportunity of
reiterating his ideas on the subject matter of
prerogative writs when again he delivered the
lead judgment of the Supreme Court in the
case of Prof. Louis Cheluno Nwaobishi & Ors.
vs. The Military Governor of Delta State & 2
Ors. (2003) 11 NWLR (Pt. 831) 305 at 320 321. Listen to him. "The writs of prohibition
and certiorari are writs forming part of the
process by which the High Court restrains
Courts of inferior jurisdiction from exceeding
their powers. A writ of prohibition restrains an
inferior tribunal from proceeding further in
excess of jurisdiction, which a writ of
2
certiorari requires the record or the order of
the inferior tribunal to be sent up to the High
Court to have its legality inquired into, and, if
necessary, to have the order quashed. Both
writs deal with questions of excessive
jurisdiction, and in their origin dealt almost
exclusively with the jurisdiction of a court of
justice. However, the operation of the writs
has extended to control the proceedings of
bodies which do not claim to be, and would be
recognized as, courts of justice. Thus,
wherever any body or persons having legal
authority to determine questions affecting the
right of subjects, and having the duty to act
judicially, acts in excess of its legal authority,
it is subject to the controlling jurisdiction of
the High Court exercised in writs of
prohibition and certiorari." Per OWOADE,
J.C.A (Pp 22-23,Paras E-G) - read in context
2 EQUITABLE REMEDY - INJUNCTION:
Whether the court can grant an injunction to
an applicant who has no legal right
"In Akapo vs. Hakeem Habeeb (1992) 6 NWLR
(Pt. 247) 266 at 291, the Supreme Court per
Karibi Whyte, JSC, had this to say: "The claim
for an injunction is won and lost on the basis
of the existence of legal rights. As I have
already said above, where an applicant for an
injunction has no legal right recognizable by
the courts, there is no power to grant him an
3
injunction." See also, Obeya Memorial
Hospital
vs.
Attorney-General
of
the
Federation (1987) 3 N.W.L.R (Pt. 60) 325."
Per OWOADE, J.C.A (P 24,Paras C-E) - read in
context
3 INTERPRETATION
OF
STATUTE
SECTION 432,401 & 490 OF THE
COMPANY AND ALLIED MATTERS ACT
1990:
Interpretation
of
sections
432(1),401(1) and 490(1) of the company
and allied matters Act,1990
"The section reads thus: "432(1) The
Commission shall take cognizance of the
conduct of liquidators of Companies which are
being wound up by the court and if a
Liquidator does not faithfully perform his
duties and duly observe all the requirement
imposed on him by any enactment, or
otherwise with respect to the performance of
his duties, or if any complaint is made to the
Commission by any creditor or contributory in
regard thereto, the Commission shall inquire
"into the matter and may take such action
thereon as it thinks fit including the direction
of a local investigation of the books and
vouchers
of
the
liquidator.
[Emphasis
supplied]. (2) The Commission may at any
time require the liquidator of a company being
wound up by the court to answer any inquiry
in relation to any winding-up in which he is
4
engaged and if the Commission thinks fit, it
may apply to the court to examine the
liquidator or any other person on oath
concerning the
winding-up." Now, the
provision of section 401(1) of CAMA provides
for three categories of winding-up of a
company that is (a) by the court; or (b)
voluntarily; or (c) subject to the supervision
of the court. If the distinctions envisaged in
section 401(1) were not so clear before now,
the provision of section 490 of CAMA reveal
that winding-up by supervision of the court
occupies a unique position indeed an hybrid in
between winding-up by the court and
voluntary winding-up. Thus section 490(1)
opens up as follows: "Where an order is made
for a winding-up subject to supervision, the
liquidator may, subject to any restrictions
imposed by the court, exercise all his powers,
without the sanction or intervention of the
court, in the same manner as if the company
were being wound up voluntarily. Provided
that the powers specified in paragraphs (d),
(e) and (f) of section 425(1) of this Act shall
not be exercised by the liquidator except with
the sanction of the court of, in a case where
before the order the winding-up was a
creditors voluntary winding-up, with the
sanction of the Court or the Committee of
inspection, or (if there is no committee) a
meeting of the creditors." Subsection (2) of
section 490 makes reference to the Twelfth
5
Schedule which excludes some provisions of
the Act as, not applying in the case of
winding-up subject to the supervision of the
court. It reads: "(2) A winding-up subject to
the supervision of the court shall not amount
to a winding-up by the court for the purpose
of the provisions of this Act as specified in the
Twelfth Schedule to this Act (dealing with
provisions which do not apply in the case of
winding up subject to the supervision of the
court) but, subject to this, an order for a
winding-up subject to supervision of the court
shall for all purposes be an order for a
winding-up by the court..." Meanwhile, under
the Twelfth Schedule made in pursuance of
the provision of section 490(2), sections 388,
420, 421, 422 as well as sections 427 - 436
and 450 and 453 are said not to be applicable
on winding-up under supervision by the court.
The implication of the above in the instant
case and as rightly pointed out by the learned
trial judge is that the respondent being
liquidator in a winding-up subject to the
supervision of the court is not subject to any
of the provisions of the, Act enumerated in
the Twelfth Schedule to the Act. And a fortiori
he is not subject to any of the controls in
section 432 including "the direction, of a local
investigation or the books and vouchers of the
liquidator."
Per
OWOADE,
J.C.A
(Pp
17-19,Paras A-C) - read in context
6
4 INTERPRETATION
OF
STATUTE
SPECIFIC/GENERAL PROVISION: Whether
a specific provision will override a general
provision where an issue in a statute is
governed by both the general and specific
provision
"It is trite law that where an issue in a statute
is governed by a general provision and a
specific provision, the latter will be invoked in
the interpretation of the issue before the
court. This is because the specific provision
will be deemed to have anticipated the issue
as against the general provision. Thus in the
instant case, even if the argument of the
learned counsel for the appellant could be
described as a case of two sets of provisions in
an enactment, one special and the other
general covering the same subject matter, a
case falling within the words of the special
provision must be governed thereby and not
by the terms of the general provision. See the
M. V. Panormos Bay & Drs. vs. Olam Nigeria
Plc. (2004) 5 NWLR (Pt.865) 1 at p. 13;
Shroeder & Co. vs. Major & Co. Ltd. (1989) 2
NWLR
(Pt.101)21;
Kraus
Thompson
Organisation vs. National Institute for Policy
and Strategic Studies (NIPSS)(2004) 17
NWLR(pt. 901) 44 at p. 65." Per OWOADE,
J.C.A (Pp 15-16,Paras F-C) - read in context
7
M. A. OWOADE, J.C.A (Delivering the Leading
Judgment): This is an appeal against the ruling of
the Federal High Court (Calabar Division) delivered
by Hon. Justice A. O. Ajakaiye on 20th October,
2004. The facts giving rise to the action at the
lower court were as follows: In June 2001, the
directors of Calabar Cement Company Limited were
by a special resolution authorized to present a
petition for the voluntary winding-up of the
company at the Federal High Court, Calabar. The
petition was duly presented for the winding-up of
the company subject to the supervision of the
Court.
Upon the application of the shareholders, the
respondent was appointed by the court as
provisional liquidator of the company subject to the
terms of reference annexed to the application.
When the affairs of the company were fully wound
up, a final general meeting was held on the 16th
July, 2003 in which the account of the liquidation
exercise was laid before the members. Sometime in
October 2003, the respondent received a letter
from the appellant intimating him of its intention to
verify the records of the liquidation exercise. On
the 3rd of November 2003, representatives of the
appellant appeared at the respondent's office and
demanded that all the vouchers, receipts, bank
statements and other books of accounts in respect
of the liquidation exercise be produced for their
inspection. Based on this, the respondent filed a
8
motion on notice on 17/12/2003 pursuant to Order
47 Rule 5(1) of the Federal High Court Civil
Procedure Rules and sought the following reliefs:
"1. An order of prohibition preventing the
respondent from exceeding their powers under the
Companies and Allied Matters Act, 1990 by
purporting to verify the receipts and payments
made in the course of the respondent's exercise of
his powers as provisional liquidator of Calabar
Cement Company Limited.
2. An order of perpetual injunction restraining the
respondent, her servants, agents or howsoever
called from requiring the applicant to produce for
inspection all the vouchers, receipts, bank
statements and other books of accounts with
respect to liquidation of Calabar Cement Company
Limited.
3. An order of injunction restraining the respondent
by itself, servants, agents or privies from
purporting to exercise any oversight or supervisory
powers over the respondent in the discharge of his
duties as provisional liquidator of Calabar Cement
Company Limited."
After taking arguments on the motion, the learned
trial judge delivered a considered ruling and held at
pp. 99 - 100 of the Records as follows:
"Having so considered the various provisions of the
CAMA applicable in both cases of winding-up of
companies, I am of the view that a winding-up by
the court is not the same as a winding-up subject
to the supervision of the court, and I so hold. I also
hold that in a winding-up subject to the supervision
9
of the court, a liquidator is not under any duty and
has no obligation to send to the CAC and the latter
has no power to demand from the liquidator any
receipt or document for verification. As such, the
CAC cannot exercise the control vested by sections
427 to 432 over a liquidator appointed in a
winding-up subject to the court's supervision."
The learned trial judge continued and made a
prohibitory and restraining order as follows:
"Having thus said, I hereby prohibit the respondent
by its servants or agents from exercising the power
of control over the applicant by seeking to verify
the receipts and payments made in the course of
the applicant's exercise of his power as provisional
liquidator of calabar Cement Company Limited.
The respondent is also restrained by itself, servants
or agents from exercising the power of control over
the applicant in the discharge of his duties as
provisional liquidator of Calabar Cement Company
Limited other than the powers exercisable by it by
virtue of section 478 of the CAMA."
Dissatisfied with this ruling, the appellant filed a
Notice of Appeal containing only one Ground of
Appeal at the lower court on 19/1/2005 and then
obtained leave to argue additional Ground of
Appeal before this court.
The appellant formulated two (2) issues from the
two (2) Grounds of Appeal as follows:
"1. Whether in a winding-up process under the
supervision of the Court the liquidator is subject to
the control/supervision of the Corporate Affairs
Commission in exercising his powers under the
10
Companies and Allied Matters Act.
2. Whether the prerogative remedy of prohibition
and the order of injunction are available to the
applicant in the instant case."
In his own brief of argument, the respondent seems
to be in agreement with the appellant and
formulated the same two issues as formulated by
the appellant's counsel.
As a preliminary observation, I wish to state that
while issue NO.2 as formulated by both counsel
captures the facts and the decision of the learned
trial judge, Issue No. 1 as formulated seems to
have expanded the scope of the trial judge's
decision in this case. I believe that from the facts of
the case and the ratio as enunciated by the learned
trial judge; Issue No. 1 should have been
formulated in terms of Ground 1 of the appellant's
Ground of Appeal that is:
"Whether in a winding-up subject to the
supervision or the court, a liquidator is under any
duty and has any obligation to send to the CAC and
the latter has power to demand from the liquidator
any receipt or document for verification."
I am adopting and formulating the above as Issue
No. 1 because the Issue No. 1 has previously
formulated by both counsel has the danger of the
possibility of this court unwittingly pronouncing on
issues which did not arise at the lower court.
In relation to Issue No. 1 as, formulated, learned
counsel, to the appellant submitted that all the
types of winding-up, namely, by the court,
voluntarily and subject to the supervision of the
11
court are under the supervision of the Corporate
Affairs Commission pursuant to section 7(a) of the
Companies and Allied Matters Act. And that the
appellant is fortified in that submission by the
provisions of sections 468 and 470 of the
Companies and Allied Matters Act which enjoin the
liquidator to file his final accounts with the
Commission.
Appellant's counsel recognized the limitations
imposed on the appellant by the provision of
section 490(2) and Schedule 12 of CAMA but
submitted that these provisions do not exclude the
application of sections 468 and 470 of CAMA,
pursuant to which the liquidator has already filed
his final accounts and therein according to counsel
lies the power of the Commission. Appellant's
counsel further submitted that arising from the
powers given to the Commission under section '468
of CAMA is the corresponding duty pursuant to
section 531 of the same CAMA for the Commission
to make returns and give information to the
Accountant-General of the Federation as he may
require. It is thus crystal clear, said learned counsel
to the appellant that the power given to the
Commission under section 468 of the Companies
and Allied Matters Act must of necessity involve the
power to ensure due process iii the liquidation of
any company.
In response to Issue NO.1, learned counsel to the
respondent submitted that section 7 of the
Companies and Allied Matters Act (CAMA) must not
be read in isolation, for it is a cardinal rule of
12
interpretation of statute that the different section
of a statute must be read together to get to the
true meaning of a given provision. On this point,
learned counsel to the respondent relied on the
cases of N. P. A. Superannuation Fund vs. Fasel
Services Ltd. (2001) 17 NWLR (Pt. 742) 261 and
Obayuwana vs. Governor of Bendel State (1983)
13 NSCC524. And said that in the instant case if
the provisions of section 7 are read together with
the provisions dealing with the voluntary
winding-up of Companies under the Act, it will be
clear that the supervisory powers of the
Commission
are
circumscribed
where
the
winding-up is one that is subject to the supervision
of the court. He submitted that the powers of the
liquidator are as provided in section 425 of CAMA
and that in exercising those powers, the liquidator
is subject to the general supervision of the court
subject to the wishes of the contributories. This he
said is in accord with the hallowed principle of
Company Law that members are the best judges of
what is in their own interest.
Respondent's counsel further submitted that where
as in this case, the winding-up was subject to the
supervision of the court, section 490 of CAMA gives
the liquidator the lee way to effectively take charge
of the affairs' of the company in liquidation with
minimal interference from the court. He said that
Schedule 12 which is introduced by subsection (2)
of section 490 specifically suspends the operation of
certain sections where the winding-up process is
one that is subject to the supervision of the court.
13
And that the sections specifically suspended in this
regard include the provisions of sections 388, 420,
421, 422 (except subsection 8), 427, 428, 429,
430, 431, 432, 433, 434, 435, 436, 450 and 453 of
CAMA.
The clear intention of section 490(2) according to
the respondent's counsel is to suspend the
supervisory powers of the Commission in the case
of a winding-up subject to 'the supervision of the
court. This, he said, must necessarily be so as the
powers of the court in the administration of the
Companies and Allied Matters Act are superior to
the powers of the Commission. The Court must be
seen to be the master of the situation in all matters
submitted to it for adjudication. The Commission
cannot superintend over matters which are already
being supervised by the court as that would amount
to subordinating the court to the control and
supervision of the Commission in respect of
proceedings before it.
Respondent's counsel submitted that the provisions
of section 531 of CAMA as canvassed in the
appellant's brief are not applicable in the instant
case. That section, he said, enjoins the Commission
and every officer who receives fees in relation to a
winding-up, to make returns and give information
to the Accountant-General of the Federation. The
Commission according to counsel, did not receive
any fees in respect of the winding-up of Calabar
Cement Company Ltd. neither is the respondent an
officer within the meaning of section 650 of the
Act. Therefore, the appellant cannot hide under this
14
section to make the enquiries sought to be made.
He urged the court to hold that a liquidator in a
winding-up subject to the supervision of the court
is not subject to the supervision or control of the
Corporate Affairs' Commission in the exercise of its
powers under the Companies and Allied Matters
Act.
In relation to Issue No.1, it seems to me that the
first question to be resolved arising more
particularly from the arguments of the learned
counsel to the appellant is whether the general
provision as to the functions of the appellant
Commission in section 7(l)(a) of the Companies and
Allied Matters Act override any of the specific
provisions in the Act for winding-up of companies
as contained in Part XV specifically from sections
401 - 536 of the Act.
The simple answer to the above question is that for
the purposes of winding-up under the Companies
and Allied Matters Act, the specific provisions
contained in sections 401-536 are to be recokened
with and not the general provisions relating to
functions of the appellant Commission as contained
in section 7(1)(a) of the enactment.
It is trite law that where an issue in a statute is
governed by a general provision and a specific
provision, the latter will be invoked in the
interpretation of the issue before the court. This is
because the specific provision will be deemed to
have anticipated the issue as against the general
provision. Thus in the instant case, even if the
argument of the learned counsel for the appellant
15
could be described as a case of two sets of
provisions in an enactment, one special and the
other general covering the same subject matter, a
case falling within the words of the special
provision must be governed thereby and not by the
terms of the general provision. See the M. V.
Panormos Bay & Drs. vs. Olam Nigeria Plc. (2004)
5 NWLR (Pt.865) 1 at p. 13; Shroeder & Co. vs.
Major & Co. Ltd. (1989) 2 NWLR (Pt.101)21; Kraus
Thompson Organisation vs. National Institute for
Policy and Strategic Studies (NIPSS)(2004) 17
NWLR(pt. 901) 44 at p. 65.
The second question in relation to Issue No. 1 is:
Can the appellant exercise any of the powers of
control in sections 427 - 432 over the respondent?
The answer to this question is in the negative. The
limitations and control of the power of the
liquidator under the Companies and Allied Matters
Act are contained in the provisions of sections 427
- 432 of the enactment with the following marginal
titles:
Section 427- Exercise and Control of Liquidator's
Power
"428 -Payments by Liquidator into Companies
Liquidation Account
"429 -Audit, etc. of Liquidator's Account
"430 -Books to be kept by Liquidator
"431 -Release of Liquidator and
"432 -Control of Liquidators
It is important to set out in full the provisions of
section 432, because the particular action that is
complained of the appellant by the respondent
16
would only have been done or accommodated
within the provisions of section 432 of CAMA. The
section reads thus:
"432(1) The Commission shall take cognizance of
the conduct of liquidators of Companies which are
being wound up by the court and if a Liquidator
does not faithfully perform his duties and duly
observe all the requirement imposed on him by any
enactment, or otherwise with respect to the
performance of his duties, or if any complaint is
made to the Commission by any creditor or
contributory in regard thereto, the Commission
shall inquire "into the matter and may take such
action thereon as it thinks fit including the direction
of a local investigation of the books and vouchers of
the liquidator. [Emphasis supplied].
(2) The Commission may at any time require the
liquidator of a company being wound up by the
court to answer any inquiry in relation to any
winding-up in which he is engaged and if the
Commission thinks fit, it may apply to the court to
examine the liquidator or any other person on oath
concerning the winding-up."
Now, the provision of section 401(1) of CAMA
provides for three categories of winding-up of a
company that is (a) by the court; or (b) voluntarily;
or (c) subject to the supervision of the court.
If the distinctions envisaged in section 401(1) were
not so clear before now, the provision of section
490 of CAMA reveal that winding-up by supervision
of the court occupies a unique position indeed an
hybrid in between winding-up by the court and
17
voluntary winding-up. Thus section 490(1) opens
up as follows:
"Where an order is made for a winding-up subject
to supervision, the liquidator may, subject to any
restrictions imposed by the court, exercise all his
powers, without the sanction or intervention of the
court, in the same manner as if the company were
being wound up voluntarily.
Provided that the powers specified in paragraphs
(d), (e) and (f) of section 425(1) of this Act shall
not be exercised by the liquidator except with the
sanction of the court of, in a case where before the
order the winding-up was a creditors voluntary
winding-up, with the sanction of the Court or the
Committee of inspection, or (if there is no
committee) a meeting of the creditors."
Subsection (2) of section 490 makes reference to
the Twelfth Schedule which excludes some
provisions of the Act as, not applying in the case of
winding-up subject to the supervision of the court.
It reads:
"(2) A winding-up subject to the supervision of the
court shall not amount to a winding-up by the court
for the purpose of the provisions of this Act as
specified in the Twelfth Schedule to this Act
(dealing with provisions which do not apply in the
case of winding up subject to the supervision of the
court) but, subject to this, an order for a
winding-up subject to supervision of the court shall
for all purposes be an order for a winding-up by the
court..."
Meanwhile, under the Twelfth Schedule made in
18
pursuance of the provision of section 490(2),
sections 388, 420, 421, 422 as well as sections 427
- 436 and 450 and 453 are said not to be applicable
on winding-up under supervision by the court. The
implication of the above in the instant case and as
rightly pointed out by the learned trial judge is that
the respondent being liquidator in a winding-up
subject to the supervision of the court is not
subject to any of the provisions of the, Act
enumerated in the Twelfth Schedule to the Act. And
a fortiori he is not subject to any of the controls in
section 432 including "the direction, of a local
investigation' or the books and vouchers of the
liquidator."
Finally, in relation to Issue No.1, the third question
that arises is: Are there any other provisions of
control by the appellant over the respondent
outside the provisions of sections 427 - 432 of
CAMA.
Here again, the answer is in the negative. The
provisions of sections 468, 470 and 531 do not
either on their own or in conjunction with any
other provisions give the appellant any powers of
control and/or powers to conduct investigation of
the books and vouchers of the respondent
liquidator. The provisions of section 468 as in the
case of section 478 are for final meeting and
dissolution all that is expected of the liquidator
from those provisions is return of account to the
appellant Commission. Incidentally, as far as the
present case is concerned there is no dispute that
the respondent liquidator has indeed compiled with
19
the provision of section 468 by filing final report
and account to the appellant.
The provision of section 470 apply only to members
voluntary winding-up and even at that the
liquidator under that section is expected only to
send to the appellant Commission for registration
copies of the accounts laid before the meeting and
a statement of the holding and date of the meeting.
As rightly pointed out by the learned counsel to the
respondent, the provisions of section 531 are not
applicable in the instant case. The section enjoins
the Commission and every officer who receives fees
in relation to a winding-up, to make returns and
give information to the Accountant-General of the
Federation. In the instant case, the appellant
Commission did not receive any fees in respect of
the winding-up of Calabar Cement Company Ltd.
neither is the respondent liquidator an officer
within the meaning of section 650 of the Act. It
would then be seen that the appellant Commission
has no power of control as such in winding-up
outside the provisions of sections 427 - 432 of
CAMA, which provisions, are not applicable in the
present case.
From the foregoing answers, Issue No. 1 is resolved
in favour of the respondent and as against the
appellant.
The second issue in this appeal is whether the
prerogative remedy of prohibition and order of
injunction are available to the applicant/respondent
in this case.
Learned counsel for the appellant has efficiently
20
sub-divided this issue into two.
(i) Does the prerogative remedy of prohibition avail
the applicant/respondent?
(ii) Has the applicant/respondent made out a case
for the grant of an order of injunction?
With great respect to the learned counsel to the
respondent, the answers to these questions are in
the negative.
Even if the appellant had powers to look into the
books of accounts and vouchers of the respondent,
which is denied in this judgment, such a function or
exercise of power could not by any stretch of
imagination be described as judicial or quasijudicial or one of which questions affecting the
rights of subjects are to be determined. For this
reason, the appropriate remedy of the respondent
is against the appellant is clearly not through a writ
of prohibition.
Let me quickly add that the cases of Onuzulike vs.
Commissioner for Special Duties, Anambra State &
1 Or. (1992) 3 NWLR (Pt. 232) 791 and Menakaya
vs. Menakaya (2001) 6 NWLR (Pt. 738) 203,
referred to by the learned counsel to the
respondent in response to Issue NO.1 are not
relevant to the instant case. None of the cases
concerned the exercise of ministerial or purely
executive or administrative power.
For example, the Onuzulike vs. Commissioner for
Special Duties, Anambra State & 1 Or. case (supra)
concerns the dissolution of a town union under
section 238(1) of Edict No. 44 of 1987 of Anambra
State. And despite the fact that the power allegedly
21
exercised by the Commission for Special Duties,
Anambra State was quasi-judicial in nature, Uwaifo,
JCA, (as he then was) who read the leading
judgment of the Court of Appeal (Enugu Division)
warned at page 815 of the report that:
"Although it must be admitted that where it is
desired to challenge an action apparently of a
ministerial nature, it might be better to seek a
declaration which has less inhibition and is less
problematic, but the present case was such that the
action attributed to the Commissioner not having
been shown to have complied with a statutory
requirement which he was bound by certiorari to
quash whatever directives were made thereunder
affecting the rights and obligations of the appellant
seems proper and unobjectionable in principle. He
had not complied with the form or substance of
dissolving a union. Even if he did in fact act himself
to dissolve the union, he must do so in the manner
and form authorized otherwise an order of
certiorari would lie..."
Certiorari and prohibition, accordingly, lie not only
against the ordinary inferior courts of law but also
against administrative tribunals, or against an
individual public officer performing a judicial or
quasi-judicial function." Thus it lies against an
administrative officer functioning as a statutory
tribunal reviewing native court proceedings, but not
where the function is administrative or executive.
Also merely ministerial or legislative acts cannot be
reviewed, by means of these orders.
Uwaifor, JSC, had the opportunity of reiterating his
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ideas on the subject matter of prerogative writs
when again he delivered the lead judgment of the
Supreme Court in the case of Prof. Louis Cheluno
Nwaobishi & Ors. vs. The Military Governor of Delta
State & 2 Ors. (2003) 11 NWLR (Pt. 831) 305 at
320 - 321. Listen to him.
"The writs of prohibition and certiorari are writs
forming part of the process by which the High Court
restrains Courts of inferior jurisdiction from
exceeding their powers. A writ of prohibition
restrains an inferior tribunal from proceeding
further in excess of jurisdiction, which a writ of
certiorari requires the record or the order of the
inferior tribunal to be sent up to the High Court to
have its legality inquired into, and, if necessary, to
have the order quashed. Both writs deal with
questions of excessive jurisdiction, and in their
origin dealt almost exclusively with the jurisdiction
of a court of justice. However, the operation of the
writs has extended to control the proceedings of
bodies which do not claim to be, and would be
recognized as, courts of justice. Thus, wherever
any body or persons having legal authority to
determine questions affecting the right of subjects,
and having the duty to act judicially, acts in excess
of its legal authority, it is subject to the controlling
jurisdiction of the High Court exercised in writs of
prohibition and certiorari."
Clearly, none of the attributes of judicial or quasijudicial exercise of powers enumerated above could
be said to be present in the perceived attempt by
the appellant Commission to investigate the books
23
of accounts and vouchers of the respondent
liquidator as in the instant case. It was wrong to
have instituted this action by a writ of prohibition
and the learned trial judge erred in granting the
order of prohibition.
Similarly, the order of injunction was wrongly made
because the claim of the respondent before the
lower court did not disclose a recognizable legal
right of the applicant/respondent. The story would
perhaps have been different if there had been a
claim for declaration and injunction.
In Akapo vs. Hakeem Habeeb (1992) 6 NWLR (Pt.
247) 266 at 291, the Supreme Court per Karibi
Whyte, JSC, had this to say:
"The claim for an injunction is won and lost on the
basis of the existence of legal rights. As I have
already said above, where an applicant for an
injunction has no legal right recognizable by the
courts, there is no power to grant him an
injunction."
See also, Obeya Memorial Hospital vs. AttorneyGeneral of the Federation (1987) 3 N.W.L.R (Pt.
60) 325.
In the circumstances I hold that the learned trial
judge was also wrong in granting the order of
injunction. Issue NO.2 is accordingly resolved in
favour of the appellant and as against the
respondent.
Issue NO.1 covers Ground One of this appeal as
that issue was resolved as against the Appellant,
Ground One of the appeal is dismissed.
Issue NO.2 covers Ground Two of the appeal and as
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that issue has been resolved in favour of the
Appellant, notwithstanding my conclusion on Issue
NO.1, the appeal is allowed in part. The orders of A.
O. Ajakaiye, J. contained in Suit No. FHC/CA
/CS/73/2003 are hereby set aside. And as the
action was commenced by a writ of prohibition
rather than by way of declaration, Suit No. FHC/CA
/CS/73/2003 is accordingly struck out.
There shall be no order for costs.
CHRISTOPHER M. CHUKWUMA-ENEH, J.C.A.: I
have read before now the judgment prepared and
delivered by my learned brother Owoade JCA and I
agree with him that the appeal should be allowed. I
abide on the order on costs.
N. S. NGWUTA, J.C.A.: I have read before now the
judgment just delivered by my learned brother
Owoade JCA and I entirely agree with the
reasoning and conclusion therein.
The main point in the appeal centers on the
interpretation of the various section of the CAMA
relating to the winding up of companies as well as
the powers of Corporate Affairs Commission under
the Act. The issues have been dealt with
extensively and exhaustively in the judgment. I
also allow the appeal and I make no order for costs.
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Appearances
Okechukwu Owhonda Esq
For Appellant
George N. Neji Esq
For
Respondent
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