- CL|Fiduciary Duty of A Bank|Bank-Customer Relationship
CORPORATE AFFAIRS COMMISSION
1. UNITED BANK FOR AFRICA PLC
2. WEMA BANK PLC
3. CITIBANK NIGERIA LIMITED RESPONDENTS
4. FIRST CITY MONUMENT BANK PLC
5. STERLING BANK PLC
6. ZENITH BANK PLC
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO. JCA: This is an appeal against the decision of the Federal High Court, Lagos Division, coram IDRIS J. delivered on the 18th day of March, 2013.
The brief facts of this case as put forward by the Appellant is that the Appellant, as the regulatory body established as per the Companies and Allied Matters Act, Cap C20, Laws of the Federation of Nigeria, 2004 and in purported exercise of powers conferred on it by Section 7 of the Act, wrote to various commercial banks requesting them to furnish to the Appellant records of all loan transactions and documentation between the banks and public and private companies in Nigeria between 1st January, 2008 and 31st December, 2010. The Respondents however failed to comply with the demand on the ground that compliance would be a breach of their confidentiality duty to their customers and also that the Appellant had failed to obtain an order of court in this regard.
In its judgment, the trial court granted to the Appellant two out of the three reliefs but declined to grant the third relief which is an "order directing the Defendants to comply with the inspection exercise schedule of the Plaintiff by supplying the information sought by the Plaintiff" Naturally aggrieved with the said decision, the Appellant filed a Notice of Appeal dated 17th April, 2013 and filed 22nd April, 2013 on two grounds.
In compliance with the Rules of court, parties filed and exchanged their respective brief and urged this court to resolve the issue(s) as formulated anon in their favour. Appellant's brief settled by Chief, the Hon. U.N. Udechukwu, KSC, SAN; O.O. Adekeye Esq.; O.V. Iweze Esq. of Aina Blankson LP is dated and filed 12th July, 2013 but deemed 17th March, 2014. Appellant's Reply Brief to the 5th Respondent's Brief as well as Notice of Intention to vary is dated 8th October, 2013 and filed 9th October, 2013. A sole issue was identified for the determination of this appeal in the Appellant's Brief thus:
"Whether in carrying out its functions, under Section 7 of the Companies and Allied Act, with particular reference to Sections 197(1), 198(1), 199 and 315(2) of the Companies and Allied Matters Act, the Plaintiff, the Corporate Affairs Commission, requires a Court Order. - GROUNDS 1 &2
1st Respondent's Brief dated and filed 18th February, 2015 but deemed 13th May, 2015 was settled by K.O.P. Odidika; Dorcas Oghome Ndukwe; C.N. Omeke of Sower & Messuarius Solicitors. A sole issue was nominated thus:
"Whether based on the provisions of Section 315(1) and (2) of the Companies and Allied Matters Act, Cap C20, Laws of the Federation of Nigeria, 2004, the Appellant has the power to carry out investigation of the affairs of the 1st Respondent without first obtaining an order of court (Ground 2 of the Notice of Appeal)
2nd Respondent's brief of argument settled by Prof. Taiwo Osopitan, SAN; Damilola Salisu (Miss) is dated 29th January, 2015 and filed 30th January, 2015 but deemed 8th May, 2015. A sole issue was also identified as follows:
"Whether or not the Learned Trial Judge correctly construed the provisions of Sections 314, 315(1) & (2) of the Companies and Allied Matters Act in arriving at the conclusion that the Appellant requires an enabling Court Order for the appointment of an inspector before it can demand from the Respondent information on the charges created by the Respondents9 Customers and third parties.
On its part, 3rd Respondent filed a brief dated and filed 17th February, 2015 but deemed 25th February, 2015 which was prepared by Fred Onuobia; Fidelis Adewole; A.G. Anafi of G. Elias & Co. Only one issue was submitted thus:
"Whether, without an order of court, the Appellant can request the 3rd Respondent to allow it to carry out "special inspection exercise on all loan transactions and documentation between the 3rd Respondent and its customer especially public and private companies pursuant to sections 7, 197, 198, 199 and 315 to 322 of the CAMA?
The 4th Respondent's Brief settled by Dr. Wale Olawoyin; Wole Omisade Esq.; 'Funke Akanbi (Mrs) of Olawoyin 85 Olawoyin is dated 9th January, 2014 but deemed 25th February, 2015.
Counsel formulated one issue thus:
"Whether the Appellant has the power to carry out an investigation of the affairs of the 4th Respondent or any company under Section 315(1) and (2) of the Companies and Allied Matters Act Cap C20 LFN, 2004 without first obtaining a court order?"
5th Respondent also caused a brief to be filed on its behalf by Abiodun Olaleru of George Ikoli & Okagbue Law Firm. The Brief is dated 13th August, 2013 and filed 16th August, 2013 but deemed 13th May, 2015 wherein Counsel submitted a single issue thus:
"Whether the Appellant can carry out investigation of the affairs of the 5th Respondent or any Company under Section 315(1) and (2) of the Companies and Allied Matters Act without first obtaining a court order?"
The 6th Respondent's counsel, Evelyn U. Obioha (Mrs) of Evelyn Obioha & Co. filed a brief on behalf of the 6th Respondent. Same is dated 8th October, 2013 and filed 14th October, 2013 wherein a sole issue was also identified thus:
"Whether the learned trial judge was right in striking out/dismissing RELIEF 3 of the Plaintiff/Appellant's claim."
It is apparent from the issues formulated by the respective counsel to the parties in this appeal that save for semantics, they are all the same. I am therefore of the firm view that the issue that is apt for the determination of this is appeal is:
"Whether the Appellant has the power to carry out an investigation of the affairs of the 4th Respondent or any company under Section 315(1) and (2) of the Companies and Allied Matters Act, Cap C20 Laws of Federation of Nigeria, 2004 without first obtaining a court order?"
Arguing the sole issue, Appellant's counsel submitted that the Appellant when acting in the execution of its functions under section 7, particularly with regard to sections 197(1) and 315(2) of the Companies and Allied Matters Act (CAMA), does not require a court order to proceed. It is the submission of counsel that it is the duty of the court to give effect to an Act of Parliament in the words used by Parliament. He submitted that the provisions of section 314 and 315(2) of CAMA must be read together as the provisions clearly show that different circumstances are in contemplation of the legislator when those provisions were framed. It is the submission of counsel that section 314 provides for circumstances when the Appellant MAY undertake an investigation at the instance of or application by members of a company while section 315(1) deals with circumstances when the Appellant SHALL undertake an investigation by Order of a Court and section 315(2) deals with circumstances when the Appellant MAY undertake an investigation suo motu, "if it appears to it" that circumstances enumerated under paragraph (a) - (d) of that section exists. He cited OMOIJAHE v UMORU  8 NWLR (PT 614) 178 at 188; ONOCHIE v ODOGWU  6 NWLR (PT 675) 65 at 85, para B; ELABANJO v DAWODU  15 NWLR (PT 1001) 76 at 135, paras F - H to reiterate that the cardinal duty of any court of law in the interpretation of statute is to decipher the intention of the Legislature. He also cited LSDPC v ADEYEMI-BERO  8 NWLR (PT 927) 330 at 357 - 358, pars H - F; AUCHI POLY v OKUOGHALE  10 NLWR (PT 933) 279 at 293, paras F - H; OGIDI & 3 ORS v STATE  5 NWLR (PT 918) 286 at 327, para C - G as to the position of case law with regards to the words "MAY" and "SHALL". It is the submission of counsel that the use of words "SHALL" and "MAY" respectively in sections 315(1) and section 315(2) is clearly indicative of the intention of the legislature to create two scenarios of how the powers of the Appellant to appoint competent Inspectors for the purpose of investigation a company may be exercised. Counsel finally contended that the learned trial judge erred when it held that the Appellant has failed to meet the threshold required for the court order in respect of relief 3.
Responding, Counsel for the 1st Respondent submitted that the trial Judge was right in refusing the 3rd relief of the Plaintiff/Appellant's claim based on the provision of section 315 (1) and (2) of CAMA. He submitted that by the said provision of CAMA, the Plaintiff/Appellant is empowered to appoint one or more inspectors to investigate the affairs of a company where the court having the appropriate jurisdiction declares that the company's affairs ought to be investigated by an inspector appointed by the Plaintiff/Appellant. He contended that it is only where a court order has been obtained against the particular company that an inspection may
be ordered by the Plaintiff/Appellant. He submitted that Section 315 (2) cannot be construed in isolation from Section 315 (1). He cited U.B.N, v. FAJEBE FOODS LTD (1998) 6 NWLR Pt. 554, Pg. 380 at 401 -402; TIDEX (NIG) LTD v. NUPENG (1998) 11 NWLR Pt. 573 Pg. 263 at 277. He submitted that where the language of a statute is clear and unambiguous, the courts must give the words their ordinary meaning.
He referred to VICTOR ADEGOKE ADEMUMI & ANOR v. ATTORNEY GENERAL OF EKITI STATE & 6 ORS  2 NWLR (Pt. 751) Pg. 474 at 512; OJOKOLOBO v. ALAMU  3 NWLR (Pt. 61) 379; COTECNA INT. LTD v. IVORY MERCHANT BANK  4 SC (Pt. 1) Pg. 1 at 8. He submitted that there was no evidence contained in the Plaintiff/Appellant's Affidavit in support of the originating Summons that a Court order has been sought and obtained in respect of the inspection that is been sought by the Plaintiff/Appellant or that any of the special circumstances mentioned in Section 315 (2) of CAMA has taken place.
He further submitted that allowing the Plaintiff/Appellant or any other body not empowered/authorized by law to investigate the loan transactions between the 1st Respondent and any company would amount to breach of banker/customer confidentiality; that the bank owes an implied duty to its customers not to divulge information about its customers to a third party, and that such disclosure can only be done with the authorization account holder and also under specific circumstance. He relied on JACKSON v. ROYAL BANK OF SCOTLAND (2005) UKHL 3; TOURNIER v. NATIONAL PROVINCAL & UNION BANK OF ENGLAND (1924) 1 KB 461; TURNER v. ROYAL BANK OF SCOTLAND PLC (1999) 2 All ER (Comm) 664 to submit that there is no Court order that places an obligation to disclose on the 1st Respondent, and there is no section of CAMA that empowers/authorizes the Appellant to inspect the loan books of the 1st Respondent. Counsel urged the Court to dismiss the appeal.
Submitting arguments on the sole issue, learned counsel for the 2nd Respondent contended that the powers vested in the Appellant are not at large, they are to be exercised within limited circumstance/scope. Counsel submitted that section 315 (2) of CAMA cannot be construed in isolation of section 315 (1) of the same Act, that there is a legislative presumption in favour of the fact that a Section of an enactment deals with the same and not different issues. He relied on SUNDAY v. INEC  12 NWLR (Pt. 1154) 194; RIVERS STATE GOVT. v. SPECIALIST KONSULT  7 NWLR (Pt. 923) 145 at 179, Para E-F; NPA PLC v. LOTUS PLASTIC LTD  19 NWLR (Pt. 959), 199, Para F-H; ABACHA v. FRN  4 NWLR (Pt. 790) Pg. 239 at 294, Para A-B to submit that the learned trial Judge rightly construed Section 315 (1) & 315 (2) of CAMA conjunctively with the result that the Appellant has no independent power to appoint an investigator/inspector without prior order of the Court and that the Appellant was precluded from approaching the 2nd Respondent for information on the charges/securities created by the 2nd Respondents' Customers. Learned counsel submitted that there is a presumption against concurrent vesting of powers of appointment in two separate bodies/organs simultaneously and that there can be no concurrent power of appointment of investigator vested in the Appellant and the Court simultaneously. He referred to JABRE v. JABRE  3 NWLR (Pt. 596) 606 at 619, Para C-E; ABACHA v. FRN  4 NWLR (Pt. 970) Pg. 239 at 309; IBRAHIM v. SHERIFF  14 NWLR (Pt. 892) 43 at 66, Para. D-E; OJUKWU v. OBASANJO  12 NWLR (Pt. 886) 169 at 209-210, Para H-B to submit that a literal interpretation of statutes must be avoided where it will lead to manifestly absurd results such as in this case where there will be two independent appointing bodies. The 2nd Respondent further submits that the issue at stake touches on the privacy of various companies and the substance of confidentiality. It is their contention that the confidentiality of transactions is the cornerstone of the relationships between the Respondent and her customers, and that the confidentiality is guaranteed by the Constitution, Statute, and Common law and that clear words which are devoid of ambiguities are required to take away these rights. Counsel relied on C.S.S. BOOKSHOPS LTD v. V R.T.M.C.R.C.  11 NWLR (Pt. 992) 530 at 577, Para E-G; DIN v. FEDERAL ATTORNEY-GENERAL  4 NWLR (Pt. 87) 147 at 148; OKARA v. NDILI  4 NWLR (Pt. 118) 700 at 711.
It was further submitted by Counsel that the Appellant acted ultra vires its powers when it embarked on investigation of 2nd Respondents' corporate customers and invariably the 2nd Respondent without fully complying with the letters and spirit of Section 315 (2) of CAMA, and that Section 315 (1) can only be utilized to investigate a particular/specific company and not to investigate many nameless corporate customers of the 2nd Respondent. He relied on OLORUNFEMI v. NED LTD  5 NWLR (Pt. 812) 1; INCAR (NIG) LTD PLC v. BOLEX ENT (NIG)  12 NWLR (Pt. 728) 646 at 680-681, Para H-B to submit that the Appellant acted ultra vires section 315 and that the drone of a power must at all times act intra vires. Counsel argued that the denial of the nation and the Appellant of revenue as deposed to in paragraph 3(f) of the Appellant's affidavit is not one of the grounds for appointment of investigators/inspectors under CAMA, and that the decision of the trial Court is justified on the ground of non-joinder of the affected Companies that are customers of the 2nd Respondent against who disclosures were sought by the Appellant in the Court below thus rendering the claim of the Appellant's claim incompetent and improperly constituted . Learned Counsel relied on NCC v. MTN  7 NWLR (Pt. 1086) 258, Para C-D; A.D. v. INEC (2003) LPELR-12445 CA to submit that where an action/relief is incompetent, the court ought to dismiss/strike it out. This Court is urged to dismiss this appeal.
On behalf of the 3rd Respondent, counsel submitted that where a statute provides that before a statutory power is exercised certain conditions must be satisfied, that power cannot be exercised unless those conditions have been satisfied, and that where a statute prescribes a particular method of exercising a statutory power, only that method should be adopted. He referred to AROWOLO v. ADESINA  2 NWLR (Pt. 1231) 315; APAPA v. INEC  8 NWLR (Pt. 1303) 409; CAC v. RTCCC  11 NWLR (Pt. 1151) 40; AGODA v. EMANUOTOR  8 NWLR (Pt. 615) 407; AUCHI POLY v. OKUOGHAE  10 NWLR (Pt. 933) 297 at 291-292 to submit that the Appellant is required to obtain an order of Court for it to obtain the requested information from the 3rd Respondents and that there is no Court order directing that the affairs of the 3rd Respondent should be investigated pursuant to which the Appellant can appoint inspectors to investigate the affairs of the 3rd Respondent.
Learned counsel submitted that where the words of a statute are clear and unambiguous, the court must give them their ordinary and plain meaning and that the courts are not entitled to read into a statute words which are expressly or impliedly excluded from it. He cited ORAKUL RESOURCES LTD v. NCC  16 NWLR (Pt. 1060) 270; BUHARI v. OBASANJO  13 NWLR (Pt. 941) 1; A.G ABIA STATE v. A.G. FEDERATION  12 NWLR (Pt 940) 452; RE: MBAMADU  18 NWLR (Pt. 744) 143 and BEWAJI v. OBASANJO  9 NWLR (Pt. 1093) 540
Learned counsel relied on SAUDE v. ABDULAHI  4 NWLR (Pt. 116) 387; FCMB v. ABIOLA & SONS LTD.  1 NWLR (Pt. 165) 14; CHUKWUGOR v. CHUKWUGOR  7 NWLR (Pt. 979) 302 to submit that by section 314 of CAMA, the Appellant cannot exercise its power of appointment of the inspectors over the affairs of the 3rd Respondent unless an application by the 3rd Respondent itself or by its members holding not less than one-quarter of the class of shares issued have been made to the Appellant, and this is not the case here. Counsel further submitted that Section 315 (1) and Section 315 (2) of CAMA cannot be read disjunctively or in isolation but as a whole and that the Court cannot make an order unless and until the circumstances enumerated under section 315 (2) of CAMA has been satisfied. He referred to A.G. KWARA STATE v. ABOLAJI  7 NWLR (Pt. 1139) 199; ABUBAKAR v. NASAMU (No. 2)  17 NWLR (Pt. 1330) 532.
Responding on the sole issue, 4th Respondent's Counsel submitted that section 315 of CAMA does not give the Appellant a legal or statutory right to demand or request an investigation of the nature being canvassed by the Appellant but rather enjoins the Appellant to apply for an Order of Court where it has been able to prove or give evidence that any of the instances listed under section 315 (2) exist. Learned counsel submitted that the 4th Respondent has discretion and not an obligation by law, to register the particulars of a charge created by any of its customers. Counsel cited SUNDAY EQUAMWENSE v. JAMES I. AMAGHIZEMWEN  9 NWLR (Pt. 315) 1 at 23 to submit that where a statute has prescribed a remedy for a certain inaction, or infraction that is the only remedy that is available for the alleged infraction of the statute. Counsel referred to C.A.C. v. DAVIS  1 NWLR (Pt. 1067) C.A. 60 at 77 Para D; OBI v. INEC  11 NWLR (Pt. 1046) S.C. 565 at 558 Para A-G to submit 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 statute before the court. Counsel cited OVIAWE v. I.R.P (NIG) LTD  3 NWLR (Pt. 492) Pg. 126 at 139; UGWENYI v. NICON INSURANCE PLC  15 NWLR (Pt. 897) Pg. 612 at 618 to submit that where the provisions of a state are clear and unambiguous, the court must give those provisions their literal and ordinary interpretation. Counsel submitted that the 4th Respondent is bound to observe strict confidentiality between it and its customers. He urged the court to hold that this Appeal is grossly incompetent and lacks merit.
On his part, the 5th Respondent's counsel also submitted that the Appellant cannot carry out any investigation of its affairs or that of any other company without first obtaining a Court order pursuant to Section 315 (1) and (2) of CAMA. Counsel also submitted that Sections 7, 197, 198, and 315 - 322 of CAMA must be read together to enable the Court arrive at a just interpretation of these sections. Learned counsel contended that where provisions of statute on an issue carry both general and specific provisions, the specific provision will be had recourse to. He cited COTECNA INT'L LIMITED V. CHURCHGATE (NIG.) LIMITED; OBIUWEUBI V. C.B.N (2011) 7 NWLR (PT.1247) 465; MUDASIRU V. ABDULLAHI (2011) 7 NWLR (PT.1247) 591; CAC V. DAVIES (2008) 1 NWLR (PT.1067) 60 AT 77 PARAS C-E;
Counsel submitted that Appellant misinterpreted the law when it argued that the decision to investigate under Section 315 (2) (a) -(d) of CAMA is the commission's and not the Court. It is his contention that the whole section must be read together. On the authorities of ADESOLA V. ABIDOYE (1994) 14 NWLR (PT.637) 28; ADEWUNMI V. OVERNOR OF ONDO STATE (1996) 8 NWLR (PT. 464) 73 AT 116 counsel reiterated the submission that an Order of Court under Section 315(1) CAMA is a condition precedent for the Appellant to do any of the things under Section 315 (2) of CAMA. Counsel therefore urged this Court to dismiss this appeal since the Appellant have not complied with the mandatory requirement of obtaining Court order.
Counsel for the 6th Respondent opened his argument by submitting that the trial Court was right in striking out Relief 3 of the Plaintiff/Appellant's claim. It is the firm submission of counsel that the 6th Respondent is bound to observe confidentiality between it and its customers since the Plaintiff/Appellant failed to obtain a Court Order. He cited the cases of TURNER V. ROYAL BANK OF SCOTLAND PLC (1999) 2 ALL ER (COMM.) 664; HABIB (NIG.) BANK PLC V.KOYA (1992) 7 NWLR (PT.251) 43; TOURNIER V. NATIONAL PROVINCIAL BANK & UNION BANK OF ENGLAND (1924) 1 KB 461.
It is the contention of counsel that the 6th Respondent has no obligation under the Companies and Allied Matters Act (CAMA) to disclose information of transactions between it and all its customers when the customers are not under investigation by inspectors duly appointed by the Plaintiff/Appellant; that the 6th Respondent's obligation to disclose such confidential information can only arise when the Plaintiff/Appellant has appointed inspectors to investigate the affairs of an identified company which company must be a customer of the 6th Respondent and such inspectors need further clarification on the register of the Company. Counsel submitted that the 6th Respondent will be in breach of its confidentiality obligation with its customers/companies (both private and public companies) if it divulges any information about its customers without their consent or a Court order. He referred to Section 315 (2) CAMA; JACKSON V. ROYAL BANK OF SCOTLAND PLC (2005) 2 ALL ER 71. Counsel further submitted that the 6th Respondent is not an agent of companies to which it lends money upon registrable charge over the assets of such companies. The agency relationship implied by law between the 6th Respondent and its customers is only limited to their banker/customer relationship. He cited YESUFU V. AFRICAN CONTINENTAL BANK (1982) 1 SC 74 AT 92; ANGYU V. MALAMI (1992) 9 NWLR (PT.246) 242.
Counsel relied on Sections 7, 197, 199, and 315 - 322 of CAMA to submit that the Appellant cannot by itself or through its appointed inspectors demand for the information on loan transactions and documentation between 6th Respondent and its corporate customers suo motu without a Court Order or consent of the shareholders of a company. It is the submission counsel that Section 315 (2) of CAMA must be read in conjunction with 315(1) of CAMA and that CAMA does not give the Appellant power to investigate the affairs of 6th Respondent without a Court Order as provided in Section 315 (1) under the circumstances in section 315 (2) of the Act. The Appellant must first obtain a Court order before any information concerning its customers can be released to it. He also urged that this appeal be dismissed.
The discussion of the sole issue in this appeal no doubt rest on the construction of the effect of certain provisions of the Companies and Allied Matters Act, Cap C20, Laws of the Federation of Nigeria, 2004, particularly sections 314 and 315 thereof.
Section 314 states:
(1) The Commission may appoint one or more competent inspectors to investigate the affairs of a company and to report on them in such manner as it may direct.
(2) The appointment may be made
(a) in the case of a company having a share capital on the application of members holding not less than one-quarter of the class of shares issued;
(b) in the case of a company not having a share capital, on the application of not less than one-quarter in number of the persons on the company's register of members; and
(c) in any other case, on application of the company.
(3) The application shall be supported by such evidence as the Commission may require for the purpose of showing that the applicant or applicants have good reason for requiring the investigation.
Section 315 on the other hand provides:
(1) The Commission shall appoint one or more competent inspectors to investigate the affairs of a company and report on them in such manner as it directs, if the court by order declares that its affairs ought be so investigated.
(2) The Commission may make such an appointment if it appears to it that there are circumstances suggesting that
(a) the company's affairs are being or have been conducted with intent to defraud its creditors or the creditors of any other person, or in a manner which is unfairly prejudicial to some part of its members; or
(b) any actual or proposed act or omission of the company (including an act or omission on its behalf) is or would be so prejudicial, or that the company was formed for any fraudulent or unlawful purpose; or
(c) persons concerned with the company's formation or the management of its affairs have in connection therewith been guilty of fraud, misfeasance or other misconduct towards it or towards its members; or
(d) the company's members have not been given all the information with respect to its affairs which they might reasonably expect.
(3) Subsections (I) and (2) of this section shall be without prejudice to the powers of the Commission under section 322 of this Act and the power conferred by subsection (2) of this section, shall be exercisable with respect to a body corporate notwithstanding that it is in course of being voluntarily wound up.
(4) Reference in subsection (2) of this section to a company's members includes any of the following persons.
(a) the personal representatives of a deceased member; and
(b) any person to whom shares have been transferred or transmitted by operation of law.
At pages 417 of the record, the learned trial judge held:
"In my view, following the provisions of Sections 314 - 315 and 317 of CAMA, the Law provides only 2 instances upon which the Plaintiff can appoint inspectors as follows:-
a. Section 314 of CAMA deals with the circumstances when the investigation may be undertaken by the Commission at the instance of a Company or certain class of its members.
b. Section 315 deals with when investigation shall be undertaken upon the direction of a Court.
In my view, Section 315(2) does not vest any power on the Plaintiff to undertake an investigation suo motu."
Furthermore, at page 426 to 427 of the record, he further held:
"I have stated earlier and I wish to repeat that Section 315(2) CAMA does not give the Plaintiff the power to investigate the affairs of Companies suo motu. Investigation under Section 315(2) shall only be undertaken upon the directors of the Court as provided in Section 315 (1) CAMA. Section 315(2) states the circumstances in which the Commission may make such an appointment...
It is clear that before the Plaintiff can seek an order under Section 315(1), it must that any one of the circumstances in Section 315(2) exists. It is only after a Court order has been obtained against the particular company that an inspection may be ordered."
The question then is whether the learned trial judge was right in his interpretation of section 315 and 316 of the Act.
My Lords, it is settled that the duty of the court to interpret the provisions of a statute in the clear tenor of the words contained in it. In KRAUS THOMPSON ORG. v. N.I.P.S.S  17 NWLR (PT 901) 44; (2004) LPELR - 171 (SC) pp. 11 - 12, paras G - B, the Supreme Court, per TOBI, JSC held:
"By the doctrine of separation of powers, it is the constitution function of the Legislature to make laws, including amendment and revocation and our duty in the judiciary is to interpret the amendment or revocation to achieve the intention of the Legislature. Where the intention of the Legislature is clear and unambiguous, courts of law must so interpret the provisions of the legislation. We cannot go outside the legislation in search for greener pastures for one of the parties.......
Similarly, in ADESANOYE & ORS v ADEWOLE  14 NWLR (PT 1000) 242; (2006) LPELR - 143 (SC), 27, paras A - E, the learned Justice of the Supreme Court re-echoed:
"Where provision of a statute or rule of court is clear, the duty of the court is to interpret the clear provision by giving the plain wordings their ordinary interpretation without more. It is not the function of a court of law to sympathise with a party in the interpretation of a statute merely because the language of the statute is harsh or will cause hardship. That is not the Junction of the court. That is rather the Junction of the legislature.
It is apparent therefore that in interpreting the provisions of section 314 and 315 of CAMA, the court should endeavour to construe the provisions in such a way as to discern the real intention of the draftsman.
Now, it is obvious from the provision of section 314(1), that the Appellant, that is, the Corporate Affairs Commission may appoint one or more competent inspectors to investigate the affairs of a company and to report on them in such manner as it may direct. Subsection (2) provides the instances (and upon whose application) the appointment may be made, that is, on application of members holding not less than one-quarter of the class of shares issued; on application of not less than one quarter in number of the persons on the company's register of member; and on application of the company. Subsection (3) prescribes that the application in subsection (2) shall be supported by such evidence as the Commission may require.
The provision of section 314 is clear on what it purports to relates to. While subsections (1) & (2) gives the Commission discretion as to the appointment of the inspectors, subsection (3) makes it mandatory that the application which MAY be considered by the Commission pursuant to subsection (2) SHALL be supported by any evidence that may be required by the Commission for the appointment of such inspectors. Evidently, the provision relates exclusively to powers conferred upon the Commission as to the appointment of inspectors. Therefore, no order of court is needed before inspectors will be appointed pursuant to section 314 of the Act.
With respect to section 315(1) of the Act, the Commission is granted similar power as under section 314(1) to investigate the affairs of a company. However, under section 315(1), the Commission must obtain order of court before such appointment will be made. Meanwhile, such order of the court must declare that the affairs of the company in question be so investigated. On the other hand, subsection (2) apparently gives the Appellant the discretion to appoint inspectors to investigate the affairs of a company in circumstances that falls under the paragraphs (a) to (d). Therefore, before the Appellant Commission can exercise the discretion granted unto it under subsection (2), it must be shown that either of the provision of paragraphs (a) to (d) had been satisfied.
I am inclined to agree with the learned counsel for the Appellant that there would not have been any need for the draftsman to include Sections 314(1) and 315(2) in the Act if the legislature intended strictly that the Appellant shall only undertake an investigation of a company incorporated under the Act pursuant to an order of court. While the use of the word 'SHALL' in section 315(1) presupposes the mandatory requirement of a court order by the Commission before it can appoint inspectors, the use of the word 'MAY' in section 314(1) and 315(1) presupposes the per