SEDC WEST MULTIPURPOSE CO-OP SOCIETY LTD v. SECURITIES AND EXCHANGE COMMISSION
(2019)LCN/13553(CA)
In The Court of Appeal of Nigeria
On Monday, the 24th day of June, 2019
CA/L/743/15
RATIO
PRACTICE AND PROCEDURE: THE OUTCOME OF A CASE DEPENDS ON THE EVIDENCE ADDUCED IN FAVOUR OF THE FACTS PLEADED
The Court has further held in FRANCIE ESEIGBE v AGHOLOR (1993) 13 SCNJ 82 AT 90 that the outcome of a case depends on the evidence adduced in favor of the facts pleaded in a civil case and the absence of the evidence means the admission of the facts in the claim and in that case it is deemed to be abandoned. See OGUNALAJI v A.G. RIVERS STATE (Supra); MERIDIEN TRADE CORP LTD v METAL CONSTRUCTION (WA) LTD (Supra).PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A
DAMAGES: GENERAL DAMAGES: NO WRONG WITHOUT A REMEDY
In NBCI v JOSEPH AJOLA OGBEMI (2012) NWLR PT 139, 1433 AT 445; where ONU, JSC held that; general damages meant there was no wrong without a remedy. It is also relates to items of loss which the plaintiff is not required to prove specifically in pleadings, see IGHRERINIOVO v SCC NIG LTD (Supra). The Appellant has incurred loss as result of the act of the Respondent, therefore, bearing in mind this is a situation that has all materials here in and the tribunal could have pronounced on it while still having jurisdiction to so do.PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
SEDC WEST MULTIPURPOSE CO-OP SOCIETY LTD Appellant(s)
AND
SECURITIES AND EXCHANGE COMMISSION Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal flows from the decision of the INVESTMENT AND SECURITIES TRIBUNAL (IST) CORAM; THELMA C. OSAMMOR PRESIDING CHAIRMAN, SALIHU SHEHUBUSMAN HON MEMBER, USMAN BALARABE HON MEMBER; OBINNA UGOCHUKWU HON MEMBER, delivered on the 3rd June, 2015 in respect of the appellants claim regarding the 2007 Public PHB PLC (NOW KEY STONE BANK LTD) wherein the Appellants claims were dismissed. The Appellant dissatisfied filed a notice of appeal on 29th June, 2015.
The facts of this case is that, the Appellant had applied for 70 million units of shares of bank PHB by a prospectus of which PHB offered 5,000,000 ordinary shares of 50k each to public at N17 per share. The Appellant was allotted 45 million units of shares and was issued share certificate No: 114588 dated 7th April 2008.
In April, 2013 the Appellant stumbled on a newspaper report published by PHB on statutory basis of allotment approved by the Respondent for bank PHB, Diamond bank, and First Registrars limited. He found that his application fell within those who applied for between
1
10,000,001-999,999,999,999 units of shares and Exhibit CW3; the statutory allotment showed that SEC had approved that category to be allotted only 6.0% of the number of shares each applicant applied for and that the cheques for refund plus interest thereon shall be sent to each applicant through registered post.
The Applicant claimed that this was not complied with and filed an action for the return of the balance due to him in the sum of N1,118,481,000.00 and damages thereon amongst others.
The Appellant filed its brief on the 5th of December, 2017 which was settled by Ayoola Ajayi of OAKS PARTNERS LP, wherein he distilled four issues for determination thus;
a. Whether the unsigned witness written statement on oath of Oyekachi Edeh dated 27/02/2015 was invalid and should have been disregarded, expunged and struck out by the Investment and Securities Tribunal in determining the suit?
b. Whether the Investment and Securities Tribunal should have deemed the respondent?s defense as having been permanently abandoned, and should have consequently treated the suit as an undefended Suit
c. Whether, having held the
2
Respondent owed the Appellant a duty of care to ensure strict compliance with approved basis of allotment for the bank PHB Plc 2007 public offer and the Respondent had breached that duty of care ,the Investment and Securities Tribunal should have awarded the sum of N1,118,481,000.00 plus interest thereon to the appellant being the returned money lost by the Appellant in respect of the said public offer as a result of Respondent?s breach of its judicially affirmed duty of care .
d. Whether, the Appellant was entitled to an award of general damages in the sum of N500 Million, for the Respondents negligence and breach of duty of care owed to the appellant regarding Bank PHB Plc 2007 Public Offer.
The Appellant had sought and was granted leave to set down this appeal for hearing on the Appellant?s brief of arguments alone on the 18th September, 2018 where from the appeal was set down for hearing on the 27th May, 2019. On the date for hearing, the Respondent?s counsel and the Respondent?s representatives were absent from Court, upon being satisfied that the hearing notice and Appellant?s brief of argument had
3
been duly served and there was no excuse for their absence nor any application for extension of time within which to file Respondents brief, the appeal proceeded to heard on the Appellant?s brief of argument alone.
APPELLANTS ARGUMENTS
The Appellants counsel submitted that the unsigned document at pages 107-111, which is the witness statement on oath of Onyekachi Edeh, dated 27/02/15, (exhibit DW10) was not signed and thus was invalid and ought to have been disregarded and expunged by the IST. He submitted that the said Oyekachi during cross examination had admitted not signing the statement, he referred to pages 206; paragraph 3 of the records, but that the IST held that it was an irregularity.
Counsel further submitted that the statement simply had O. E. on the portion marked DEPONENT appended thereon and by virtue of Order 5 (4) & (5) of the IST (procedure) Rules, 2004 which are clear and are in mandatory terms with the use of the word SHALL are in support that such a defect is nor a mere irregularity. He called in aid the following cases JOHN v IGBO-ETITI L.G.A.
4
(2013) 7 NWLR (PT. 1352)1 AT 15B-D; ACHINEKU v ISHAGBA (1988) 4 NWLR (PT 89) 411; OYEYIPO v OYINLOYE (1987) 1 NWLR (PT50) 356; IFEZUE v MBADUGHA (1984) 1 SCNLR 427.
The Appellants counsel stressed that Order 11 rule 8 of the 2014 rules of the Tribunal did not avail it, in that the witness has said under oath that he did not sign same and that it was different. Counsel posits that secondly, the rules of Court are not cosmetic and are to be obeyed to the letter. He cited ASIKA v ATUANYA (2013) 14 NWLR (PT 1375) 510 AT 530 F-G; OFORKIRE v MADUIKE (2003) 5 NWLR (PT 812) 166; DAMBAM v LELE (2000) 11 NWLR (PT 678) 413.
Thirdly, Appellant argued that the document is worthless in law, having not been signed by the deponent and its null and void for whatever purpose, he cited the following cases; A.G ABIA STATE v AGHARANYA (1999) 6 NWLR (PT 607) 362 at 371; ICAN v UNEGBU (2012) 2 NWLR (PT 1284) at 2116; OYENEYIN v AKINKUGBE (2010) 4 NWLR (PT 1184 ) 265 at 285D; BUHARI v INEC (2008) 4 NWLR (PT 1120) 246; DR MUHAMMED ONUJABE & ORS v FATIMAH IDIRIS (2011) LPELR CA/A/71/M/2009; ORAEKWE & ANOR v CHUKWUKA & ORS (2010) LPELR -CA/E/EPT/32/08 to
5
contend that by virtue of Order 5 (4 & 5)of the IST Procedure Rules, 2014, the Oaths Law and Evidence Act the statement is void and should be expunged as worthless.
On issue 2, the Appellant contended that the Respondent?s statement of defense should be deemed abandoned and the suit treated as undefended. He argued that the witness statement if been declared void means that the respondent?s amended reply has no evidence to back it and it goes to no issue. He cited the following cases; NEWSBREED ORGANISATION LTD v J. E. ERHOMOSELE (2006) 5 NWLR (PT 974) 499 AT 545 C-D; MILITARY GOV LAGOS STATE v ADEYIGA (2012) 5 NWLR (PT 1291) AT 331 H-332B; OLUSANYA v OSINLEYE (2013) 12 NWLR (PT 13670) 148.
Appellant further posit that the Respondent has therefore failed to contradict, deny or challenge the evidences of CW against the Respondent and the effect is that the Respondent is deemed to have admitted the facts of the Appellant therein. He cited MERIDIEN TRADE CORPORATION LTD v METAL CONSTRUCTION LTD (1998) 3SC 20; SODIPO v OGIDAN (2007) ALL FWLR (PT 393) 67 88G – 89B; PIPCS LTD v VLACHOS (2008) 4 NWLR (PT 1076) 72 AT 88 D – E.
Finally, he
6
submitted that the INVESTMENT SECURITY TRIBUNAL failed to make the consequential order of deeming the reply as abandoned.
On issue 3, he contended that if issues 1 & 2 are in his favor this issue would be rendered academic, but if on the contrary, he submitted that the Investment Security Tribunal having made findings that the Respondent owed him a duty of care to ensure strict compliance with its approved basis of allotment then they should have proceeded to award the sum of N1, 118,481,000.00 plus interest thereon.
He referred to findings at page 142-148, and at pages 253 last paragraph, that Investment Security Tribunal found that the allotment was in breach of rules set by Respondent and the ISA, 2007, Rules and Regulations. He referred to page 254 of records, where the tribunal found that it owed a duty to the Appellant held that it does not end with the approval of allotment the appellant failed to award damages but digressed.
He argued that the damages was not challenged all materials were before the tribunal and the Appellant was entitled to a refund statutorily, he cited WELLE v BOGUNJOKO (2007) 6 NWLR (PT 1029) 125 AT 140 -141 G
7
A; NIGERIAN CUSTOMS SERVICE v BAZUAYE (2006) 3 NWLR (PT. 967) 303.
Appellant posit that the extant claims were in the Amended Originating Summons before the tribunal and they were against the Respondent and not against the issuing house nor issuer and hence, they need not be parties as held by the tribunal as reasons for not awarding damages. In addition, he argued that the Tribunal erroneously held that his lackadaisical attitude to the implementation compounded the damage, while he had stated in his claims quite clearly that he stumbled on the information which was published on 14th April (Exhibit CW3) after the act had been committed and it was the statutory duty of the Respondent and he had no added duty to do at that point.
On this basis the Appellant urged the Court to invoke Section 16 of the Court of Appeal Act to make a pronouncement granting the Appellant?s claim for damages and interest in line with Section 96 of the ISA 2007 which is 14% till date of payment which was not refuted or contradicted and is in line with the approval of the Respondent in refunds.
In the same manner, the Appellant contended in issue 4 that,
8
he is entitled to an award of general damages in the sum of N500M for negligence and breach of duty of care in line with IGHRERINIOVO v SCC NIG LTD (2013) 10 NWLR (PT 1361) AT 153F-G. He urged the Court to consider high rate of inflation and also that the tribunal omitted to mention despite making a clear finding that the Appellant owed him a duty of care, and invoke Section 16 of its Act and grant the damages.
RESOLUTION
The first issue is whether the statement on oath deposed to by Onyekachi Edeh dated 27/02 2015 was valid, it is on record that the deponent who was DW admitted under cross examination that he did not sign the statement; Exhibit DW10. See page 107 -111 and 251. In my view, the admission of the said Onyekachi is clearly against his interest; see NWANKWO v NWANKWO (1995) 5 NWLR (PT. 394) 153; ODUTOLA v PAPERSACK (NIG) LTD LPLER 2259; DICKSON v ASSAMUDO (2013) LPELR ? 20416 (CA).
The admission is clear, unambiguous made with full knowledge and also unequivocal, therefore, the effect of the law will apply. It means in plain language, the statement on oath is not signed and the letters E.O appearing on the signature
9
section was not his and was put there by someone who is not the deponent. I agree with the Appellant that the statement amounts to a nullity and cannot be regarded by any law Court, see Section 91(4) of Evidence Act. In the cases of A.G ABIA STATE v AGHARANYA (1999) 6 NWLR (PT 607) P 362; FASEHUN v A.G FEDERATION (2006) 6 NWLR (PT 975) P 141. The Apex Court has held that the unsigned document is a worthless document and should be disregarded.
I have examined the provisions of Order 5 Rule 4 (1) & 5 (5) of IST Procedure Rules, 2014, and find that it requires that a statement on oath shall be signed by a person, but in this case it is not signed by the designated deponent so to speak, and does not tally with the state of the requirements. These rules and oath law have therefore been breached in its entire ramification and cannot by any stretch of imagination be cured by the application of Order 11 Rules 8 of the said procedure rules, it does not apply in this circumstances. See BUHARI v INEC (2008) 4 NWLR (PT 1078) 546.
The long and short is that the witness statement on oath (in any case was never on oath, the very essence which was to verify the
10
reply) cannot serve any useful purpose and is void. The Tribunal erred in not disregarding the statement on oath, I hereby declare the statement on oath void and hereby disregarded.
I resolve this in favour of the Appellant
The effect of the void statement filed by the Respondent has cast a slur on the statement of reply, because the Respondent?s reply has no leg to stand, there is no evidence backing it, the reply is deemed abandoned. See; NEWBREED ORGANSATION LIMITED v J.E ERHOMOSELE (2006) 5 NWLR (PT 974) 499 ; DINGIYADI & ANOR v WAMAKO & ORS 2008 LPELR 4041 CA; SAMSON AJIBADE v MAYOWA & ANOR 1978 9/10 SC; where the Apex Court held that evidence offered in support of undefended averments in a pleading must be believed and held as uncontroverted and unchallenged.
The Court has further held in FRANCIE ESEIGBE v AGHOLOR (1993) 13 SCNJ 82 AT 90 that the outcome of a case depends on the evidence adduced in favor of the facts pleaded in a civil case and the absence of the evidence means the admission of the facts in the claim and in that case it is deemed to be abandoned. See OGUNALAJI v A.G. RIVERS STATE (Supra);
11
MERIDIEN TRADE CORP LTD v METAL CONSTRUCTION (WA) LTD (Supra).
In the light of the effect of the law on the statement on oath, the reply of the Respondent, and the culminating effect on the position of the law, the case of the Respondent is treated abandoned, and therefore, there is no evidence before the Court.
I resolve issue 2 in favour of the Appellant.
On issue 3 and 4, the IST having made copious finding in favour of the Appellant that the Respondent owed a duty of care to him and the statutory ratio was not complied with, see page 250-253 of the record, also the defendant failed to discharge the duty of care it owes the claimant. The evidence of the Appellants witness was un-contradicted and unchallenged; that the Appellant should have received a refund of the un-allotted 93.99 % of units applied for which amounts N1,118,481,000.00. At this stage it was clear that the IST agreed with the Appellants evidence but failed to make the consequential award based on the reasonings that the Appellant was not interested in pursuing his rights or rather slept on his right, but is this correct?
There is abundant documentary and oral
12
evidence on the time at which the information came to the Appellant; Exhibit C7. It had held that it was a statutory duty of the Respondent, therefore, how it became a fault of the Appellant is not shown or evaluated, this is the point of deviation, a statutory duty provided under the ISA is not a shared duty, the Appellant had no part to play, nothing more to do. He learnt of the result in April and promptly demanded a redress of the situation, I dare say that the holding of the IST has no basis, there was no evidence of this assertion, all materials showing that he got to know after the allotment had been pleaded and evidence duly adduced, in fact the evidence of publication was right before it.
I am of the view that at this stage, the IST setting up a different case for the Respondent who had made no mention of it in its abandoned reply. It is trite that a Court cannot set up a different case for a party. Parties and the Court are bound by the pleadings before the Court. Therefore, the reason for refusal is grossly insufficient and unfounded in the light of clear findings in favour of the Appellant, I am afraid the finding is unsupported and it is in
13
its place that I award the sum of N1, 118,481,000.00 as claimed in the Appellant?s claim, which was properly calculated. I resolve this in favour of the Appellant.
Finally, the issue of general damages, having upheld the claim that the Respondent was negligent, in that, it owed a duty of care to the Appellant in its conduct.
In NBCI v JOSEPH AJOLA OGBEMI (2012) NWLR PT 139, 1433 AT 445; where ONU, JSC held that; general damages meant there was no wrong without a remedy. It is also relates to items of loss which the plaintiff is not required to prove specifically in pleadings, see IGHRERINIOVO v SCC NIG LTD (Supra). The Appellant has incurred loss as result of the act of the Respondent, therefore, bearing in mind this is a situation that has all materials here in and the tribunal could have pronounced on it while still having jurisdiction to so do. It is therefore, an apt situation for the Court to invoke Section 16 of the Court of Appeal Act and deal with the issue.
In INAKOJU v ADELEKE (2007) 4 NWLR (PT. 1025) 42; where the Court held that the Court of Appeal has power to make orders dealing with the real controversy in the matter.
14
Therefore, having been satisfied that all findings are in the favour of the Appellant where in the tribunal failed to pronounce upon same, I hereby invoke Section 16 of the Court of Appeal Act and apply same in awarding general damages in taking into accounts the rising cost of inflation and power of the naira as per forming exchange, the age of the case and commercial nature of shares investment even though the Securities exchange Commission in setting the statutory ratio approval has taken into account interest to be added to the refund, it would not in my view amount to double compensation. It is important to note that, if the Appellant got the award and interest timeously refunded though inflation would have affected same but it is a better than nothing, since he can never be in the same shoes again, the effect of general damages is to put him as close as possible to the position he would have been if the Respondent?s directive was aptly carried out. In this case, I am of the view that the sum of N100M is apt to cover all losses.
Before closing, I must address an issue. The Investment Security Tribunal had held that the Appellant did not join
15
the security house or bank. All I will say is that no Court or tribunal can compel a Plaintiff to proceed against a person he does not intend to proceed against. Simply put, a Plaintiff has a right to choose who to sue where he has joint and several demands against more than one person. See AKINYEMI v GOVERNOR OYO STATE (2003) FWLR (PT. 140) 1821; CROWN FLOUR MILLS LTD v OLOKUN (2008) 4 NWLR (PT. 1077) 254.
The Appellant case is clear and unambiguous against the Respondent as a regulatory body and nothing else. It is not a sufficient reason to deny him his claim.
I resolve the issue in support of the Appellant.
On the whole, having resolved all issues in favour of Appellant, the appeal has merit and it is allowed. The judgment of IST is hereby set aside and in its place, I enter judgment for the Appellant/claimant as per terms of his claim except to vary the award of general damages IN THE SUM OF N100M TO APPELLANT.
The sum of N300,000 costs is awarded in favour of Appellant.
MOHAMMED LAWAL GARBA, J.C.A.: I agree
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read in the
16
draft form, the lead judgment just delivered by my learned brother, Abimbola Osarugue Obaseki-Adejumo, JCA, wherein the appeal was held to has merit.
I agreed with the fine and clinical analysis of the issues formulated therein. I also agree that the sum of N100m (One Hundred Million Naira ) as the general damages will put the Appellant as close as possible to the same position he would have been in the absence of the infraction.
I also agree with the award of the sum of N300,000.00 as the costs of the action.
17
Appearances:
AJAYI AYOOLA with him, SOLOMON OJOFor Appellant(s)
RESPONDENT NOT REPRESENTED.For Respondent(s)
Appearances
AJAYI AYOOLA with him, SOLOMON OJOFor Appellant
AND
RESPONDENT NOT REPRESENTED.For Respondent
