CENTRAL SECURITIES CLEARING SYSTEMS LIMITED & ANOR v. NMA INVESTMENTS & SECURITIES LIMITED & ANOR
(2018)LCN/11539(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of May, 2018
CA/K/68/2016
RATIO
AN APPELLANT HAS THE DUTY TO PROVE WHY JUDGMENT SHOULD BE SET ASIDE
The burden is therefore, on an Appellant to show why the judgment he has appealed from in a civil case should be set aside. If he cannot clearly convince the appeal Court or if all he has done merely raises a doubt whether the judgment is right or wrong, the judgment stays and the appeal fails. per UWANI MUSA ABBA AJI, J.C.A
JUSTICES:
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
Between
1. CENTRAL SECURITIES CLEARING SYSTEMS LTD
2. FORTRESS CAPITAL LIMITED
3. SENATOR ISA YAHAYA ZAREWA – Appellant(s)
AND
1. NMA INVESTMENTS & SECURITIES LTD
2. SECURITIES & EXCHANGE COMMISSION – Respondent(s)
UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the Investments and Securities Tribunal, holden at Kano in Suit K/47/2014 presided over by Hon. Wilfred D. Ikatari (Chairman), Ahmad Rabiu and Mohammed A. Dahiru, delivered on 16/6/2010 by Hon. Justice Wilfred D. Ikatari (Chairman), wherein the Claims of the 1st Respondent against the Appellants were granted.
The 1st Respondents claims at the Tribunal against the Appellants vide the Originating Application dated 3/8/2009 contained at pages 1-2 of the records were as follows:
1. An order of this Honourable Tribunal directing the Respondents jointly and severally to cause or direct the lifting of the suspension or blockage of the 1st applicants accounts with CSCS (the 4th Respondent)
The said accounts are:
a) Account No.66067395 (Heritage Investment & Securities Ltd
b) Account No.7267692 (Light House Asset Management Ltd)
c) 70624812 (Transworld Investment & Securities Ltd)
d) 97911433 (NMAIS Special Account)
e) (Kundila Finance & Securities Ltd)
f) 55783749 (Monument Invest. & Finance)
2. AN ORDER of this Honourable Tribunal directing the 1st, 2nd and 4th Respondents jointly and severally to pay the Applicants the total sum of N135, 152, 718.25 being losses suffered as a result of lack of turn over and access to its stocks in the said accounts.
3. AND for such further order(s) as this Honourable Tribunal may deem fit to make in the circumstances of this application.
The facts of the case are that prior to the incorporation of the 1st Respondent, its deceased Managing Director, Nasiru Abubakar Mohammed, had attracted and introduced several share verification/sale and other stock broking businesses to the 1st Respondent, some of the shares belonged to individuals, Local Government Councils and Government Institutions. Between 2006 to 2007, some persons and LG Councils in Bauchi and Gombe States petitioned the Appellants alleging that the persons who gave the mandate for the verification and sale of some shares which the 1st Respondents MD introduced to the 1st Respondent had no authority to do so. Thus, the Securities & Exchange Commission, Central Securities Clearing System Ltd and the Nigerian Stock Exchange sought explanations from the 1st Respondent over the matter. However, the investigations carried out by NSE, ICPC, EFCC and a Panel set up by the Bauchi State Government was inconclusive. Consequently, Heritage Investment & Securities Ltd on 14/1/2007, wrote and directed the 1st Appellant (Central Securities Clearing Systems Ltd) to pledge and block the CSCS accounts of the 1st Respondent. In executing this directive, the 1st Appellant blocked the CSCS accounts opened and managed for the 1st Respondent by other stockbrokers. The 1st Respondent petitioned to the 2nd Respondent who did nothing, hence the Originating Application at the Tribunal.
At the close of hearing, the 1st Respondents and 1st Appellants Counsel filed their written addresses; wherein judgment was in favour of the 1st Respondent. Dissatisfied with the said judgment, the Appellants appealed vide a Notice of Appeal dated 9/12/2014, wherein 8 Grounds of Appeal were raised as contained at pages 193-202 of the record of appeal.
In accordance with the Rules of this Court, the Appellants drafted their Brief of Argument dated 13/6/2016 but deemed properly filed on 9/3/2017, settled by Godwin Omoaka, Esq and Dennis E. Omorojor, Esq., wherein they formulated 5 issues for the determination of the appeal to wit:
1. Considering the provisions of Section 251(1)(q) (r) and (s) of the Constitution of the Federal Republic of Nigeria, 1999 (1999 Constitution) which vest exclusive jurisdiction in the Federal High Court in relation to the matters enumerated therein, does the Tribunal have jurisdiction to entertain the 1st Respondents claims in light of the uncontested fact that the 2nd Respondent is an agency of the Federal Government of Nigeria, and the reliefs sought include, among others, damages? (FHC Exclusive jurisdiction issue)
2. Whether by failing to give the Appellants the opportunity to address it on a number of crucial exhibits, the primary basis on which the Tribunal reached a decision unfavourable to the Appellants, the Tribunal did not infringe on the Appellants right to fair hearing? (Breach of fair hearing issue)
3. Considering that there was, without question, no contractual relationship between the 1st Appellant and the 1st Respondent, was the Tribunal right to have found that the 1st Appellant acted wrongly in blocking or pledging the account of the 1st Respondent? (Blocking of account issue)
4. Can the judgment of the Tribunal be regarded as final judgment given that crucial aspects of the judgment were conditioned on the outcome of further investigations which the Tribunal directed the 2nd Respondent to undertake, after which, or failing which, key parts of the judgment will become enforceable? (Not final judgment issue)
5. Given that the 1st Respondent did not assert a claim in general damages, was the Tribunal right to have made an award in general damages when special damages was not expressly claimed by the 1st Respondent and particularly after the Tribunal had earlier rejected the 1st Respondents claim for special damages on the ground that it was not proved? (General damages ought not to be awarded issue).”
The learned Counsel to the 1st Respondent prepared his brief dated 7/11/2017 but deemed properly filed on 13/11/2017, settled by Sagir Suleiman Gezawa, Esq., wherein the issues formulated by the Appellants learned Counsel were all adopted.
At the hearing of the appeal on 21/3/2018, the learned Counsel to the Appellants adopted his Brief of argument and prayed this Court to allow the appeal, while the Respondents learned Counsel prayed this Court to dismiss the appeal with punitive cost.
ISSUES FOR DETERMINATION:
There are two issues that strive for preeminence here:
1. Considering the provisions of Section 251(1)(q) (r) and (s) of the Constitution of the Federal Republic of Nigeria, 1999 (1999 Constitution) which vest exclusive jurisdiction in the Federal High Court in relation to the matters enumerated therein, does the Tribunal have jurisdiction to entertain the 1st Respondents claims in light of the uncontested fact that the 2nd Respondent is an agency of the Federal Government of Nigeria, and the reliefs sought include, among others, damages? (FHC Exclusive jurisdiction issue)
2. Whether by proper evaluation of the evidence and upon balance of probability, the judgment of the trial Tribunal can stand?
ISSUE ONE:
Considering the provisions of Section 251(1)(q) (r) and (s) of the Constitution of the Federal Republic of Nigeria, 1999 (1999 Constitution) which vest exclusive jurisdiction in the Federal High Court in relation to the matters enumerated therein, does the Tribunal have jurisdiction to entertain the 1st Respondents claims in light of the uncontested fact that the 2nd Respondent is an agency of the Federal Government of Nigeria, and the reliefs sought include, among others, damages? (FHC Exclusive jurisdiction issue).”
It is submitted by the learned Counsel to the Appellants that irrespective of the subject matter or claim, the 2nd Respondent being an agency of the Federal Government, it is the Federal High Court that has the exclusive jurisdiction to hear this case. He cited in support NEPA V. EDEGBERO (2002) 18 NWLR 94. He therefore urged this Court to declare Section 284(1) of the Investments and Securities Act inconsistent with the Section 251 of the Constitution and consequently that the Tribunal was bereft of jurisdiction to entertain the claims of the 1st Respondent.
He relied on SEC V. PROF. A.B. KASUNMU (2009) 10 NWLR (PT.1150) 534C-535C, NOSPETCO OIL & GAS LTD V. OLORUNNIMBE (2011) 10 NWLR (PT.1307) 115. He prayed this Court to resolve this issue in their favour.
On the other hand, the learned Counsel to the 1st Respondent has submitted that the Tribunal has exclusive jurisdiction on resolution of disputes arising from the operations of the capital and securities market as decided in the case of WEALTHZONE LTD V. SEC (2016) LPELR- 41808CA. He urged that this issue be resolved in his favour.
I have gone through the records, the entire proceedings and the judgment of the trial Court and shall proceed to consider the appeal in the manner below.
Of course, I must first consider the issue of the jurisdiction of the trial Tribunal which is pivotal and the lifeblood of the whole issues before me. Unarguably, the 2nd Respondent is an agency of the Federal Government and by the provision of S. 251(1)(q) of the 1999 Constitution (as amended), it is the Federal High Court that has the exclusive jurisdiction to hear a matter between the Federal Government and any of its agencies.
See NEPA V. EDEGBERO (2002) 18 NWLR (PT. 798) 94. I will for the sake of clarity and emphasis reproduce the relevant provisions relied upon by the Appellants learned Counsel:
251. (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters –
(q) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies; and
(s) such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly: Provided that nothing in the provisions of paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.
The exclusivity of the jurisdiction of the Federal High Court in respect of the provisions cited and relied upon by the learned Counsel to the Appellants relate to the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies, any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies, and such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly.
Based on the foregoing vis-a-vis the case before me, it can be sifted that the present case, though involving an agency of the Federal Government of Nigeria, is not on the interpretation or operation of the Constitution. It does not border on an action for declaration or injunction affecting the validity of any executive or administrative action.
The instant appeal or matter concerns disputes between and among capital market operators. It is pertinent here to note that all the parties are disputants to capital market and securities issues and operations and not only the Securities and Exchange Commission (SEC), being only one among the other parties. What then becomes their fate since some of them are not agencies of the Federal Government, where will they seek legal redress? Thus, in the wisdom of the legislators and because of the peculiarity, uniqueness and specialty of the subject matter of capital market operations, the National Assembly, being the legislative Arm of the Federal Government of Nigeria, came up and set up a Tribunal with special and exclusive jurisdiction on capital market operations and matters. The exclusive and special jurisdiction of the Investments & Securities Tribunal has been expressly spelt out just as the Federal High Court has its special and exclusive jurisdiction. Section 284 (1) of the Investments & Securities Act provides clearly and with exclusivity that:
284. (1) The Tribunal shall, to the exclusion of any other Court of law or body in Nigeria, exercise jurisdiction to hear and determine any question of law or dispute involving:
(a) a decision or determination of the Commission in the operation and application of this Act, and in particular, relating to any dispute: (i) between capital market operators; (ii) between capital market operators and their client;
(iii) between an investor and a securities exchange or capital trade point or clearing and settlement agency; (iv) between capital market operators and self regulatory organization;
(b) the Commission and self regulatory organization;
(c) a capital market operator and the Commission;
(d) an investor and the Commission;
(e) an issuer of securities and the Commission; and
(f) disputes arising from the administration, management and operation of collective investment schemes.
(2) The Tribunal shall also exercise jurisdiction in any other matter as may be prescribed by an Act of the National Assembly.
(3) In the exercise of its jurisdiction the Tribunal shall have the power to interpret any law, rules or regulation as may be applicable.
Another limb of this argument that I must not gloss over concerns whether there is primacy and preeminence with the Act establishing the jurisdiction of the Federal High Court and that of the Investments & Securities Tribunal? While Section 251(1) of the 2011 Constitution (as amended) provides jurisdiction as may be conferred upon it by an Act of the National Assembly as it relates to the Federal High Court jurisdiction, Section 281 (2) of the Investments & Securities Act on the same strength and authority provides that the Investments & Securities Tribunal shall also exercise jurisdiction in any other matter as may be prescribed by an Act of the National Assembly. There is therefore the same legal and jurisdictional thread running through the Act conferring exclusive and special jurisdiction on both the Federal High Court and Investments & Securities Tribunal. It is without further ado abundantly clear that the Investments & Securities Tribunal, being the trial Court, had the requisite jurisdiction to determine the present case.
Nevertheless, I am tempted and impelled not to halt here. In seeking to examine the constitutionality of the exclusive jurisdiction conferred on the Tribunal, what this simply portends in the opinion of this Court, is that the situation calls for a critical examination of the accurate interpretative intentions of the National Assembly (Legislature) when in 1999 it created the Tribunal exclusively as a specialist Court for the handling of Securities and Capital market cases. It would be recalled that the establishment of the Tribunal at the time also resulted in other collateral legislative issues, which are intricately tied to the creation of the Court and the consideration of which, tends to throw light on the clear intentions of the Legislature, nevertheless. For instance, to ensure that the Tribunal functioned and performed optimally, Section 263(1) of the Investments and Securities Act, 1999 (now ISA 2007) appropriately and expressly repealed Part XVII of the Companies and Allied Matter’s Act, (CAMA) 1990, which at the time regulated dealings in the Capital and Securities market and implicitly vested exclusive jurisdiction for handling disputes arising there from on the Federal High Court. For having therefore expressly divested the Federal High Court of its Jurisdictional stranglehold over Capital Market matters, in the opinion of this Court by expressly expunging Part XVII of the CAMA when the Section provided thus: “263 (1) The following enactments are hereby repealed…. (d) Part XVII of the Companies and Allied Matters Decree, 1990.” It simply means that the National Assembly clearly intended to carve out and assign exclusively to the Nigerian Investments and Securities Tribunal as a specialist Court, its own spheres of operations whose mainstay would be the resolution of disputes arising from the operations of the Capital and Securities market away from the expansive corporate jurisdiction to which the Federal High Court has already been saddled. The clear interpretation of the act of the National Assembly in 1999 when it created the Investments and Securities Tribunal as a specialist Court simply means that the exclusive jurisdiction of the Federal High Court would no longer extend to matters affecting the operations of the Capital and Securities market, but remain limited to matters that may arise from the provisions of BOFIA and CAMA. See the sagely dictum of Per FREDERICK OZIAKPONO OHO, J.C.A in WEALTHZONE LTD V. SEC (2016) LPELR- 41808CA.
Furthermore, he opined and elucidated that:
There is no gainsaying the fact that the Federal High Court, ordinarily is superior to the Nigerian Investment and Securities Tribunal (IST) or any other specialist Courts that the National Assembly may create; but the Investment and Securities Tribunal, is a creation of the National Assembly specifically to resolve disputes arising from the Investments and Securities Act; the operations of listed companies vis-a-vis the operations of the Capital and Securities market. It is important to note as well that the Tribunal, despite its strings of exclusive jurisdictions, ordinarily could not have been created to rank pari-pasu in the judicial hierarchy with the Federal High Court. A clear indication of this is with the expression: “Notwithstanding anything to the contrary contained in this Constitution…” used in 251 (1). What it simply connotes is that every other provision in the Constitution especially as it has to do with the question of jurisdiction of other Courts or Tribunal are inferior to that provision. The word: “Notwithstanding” according to Encarta Encyclopedia Dictionary, 2009 version means: “in spite of” or “despite”.
Therefore, in spite of any other provision of the 1999 Constitution, Section 251 simply ranks superior. In the case of OLORUNTOBA-OJU vs. DOPAMU (2008) 7 NWLR (PT. 1085) 1 at 25 the Apex Court had the opportunity of placing its stamp of approval on the point that Section 251 of the Constitution, 1999 was meant to vest exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or its Agencies are parties.”
Similarly, the Federal High Court, ordinarily, has exclusive jurisdiction in “Civil Causes and matters connected with or pertaining to Banking, Banks, other Financial Institutions, including any action between one Bank and another, any action by or against the Central Bank of Nigeria arising from Banking, Foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures.” This however, is: “provided that this paragraph shall not apply to any dispute between an individual customer and his Bank in respect of transactions between the individual customer and the Bank.” See Section 251 (1) (d) of the 1999 Constitution (As Amended).
In the instant case and based on the pleadings of the parties, the case is between and among customers of the Nigerian Stock Exchange and capital market under the supervisory and regulatory functions and powers of the 2nd Respondent, being an agency of the Federal Government of Nigeria. Moreover, the Federal High Court also has exclusive trial jurisdiction over matters affecting the validity or otherwise of Executive or Administrative actions or decisions over Federal Government Agencies and Parastatals including the Central Bank of Nigeria (CBN); the Corporate Affairs Commission (CAC) and the Securities and Exchange Commission (SEC). See Section 251 (1) (r) of the Constitution of Nigeria 1999. See NEPA V. EDEGBERO (2002) 18 NWLR (PT. 789) 79 and many others decided cases on the subject. Furthermore, exclusive Jurisdiction is conferred on the Federal High Court, in Civil Causes and Matters arising from the operations of Banks and other Financial Institutions Act (BOFIA) and the Companies and Allied Matters Act (CAMA). See also Per FREDERICK OZIAKPONO OHO, J.C.A in WEALTHZONE LTD V. SEC (supra). I must therefore make bold to say that the trial Tribunal took the bull by the horn to exercise jurisdiction in this matter and had indeed the requisite jurisdiction to hear and determine the matter. This issue is accordingly resolved against the Appellants.
ISSUE TWO:
Whether by proper evaluation of the evidence and upon balance of probability, the judgment of the trial Tribunal can stand?
It was submitted by the learned Counsel to the Appellants that the Tribunal relied on Exhibits 2, 3, 4, 5, 7 and 8 attached to the originating application and Exhibits A6, A7, D, E1 and E2 attached to the reply of the 2nd and 3rd Appellants in its decision without affording the Appellants fair hearing on the contents of the documents. He argued that at no time were these documents tendered and admitted in evidence to have been contested by the Appellants. On the breach of the Appellants right to fair hearing, he sought support in Section 36(1) of the Constitution, UKACHUKWU V. PDP (2014) 17 NWLR (PT. 1435) 134, PAM V. NASIRU MOHAMMED (2008) 16 NWLR (PT. 1112) 48. He contended that since the said exhibits were not tendered and admitted in evidence, the Court ought not to have acted on them as he relied on the case of ASUQUO V. EYO (2014) 5 NWLR (PT. 1400) 264.
It was further submitted that since there was no contractual relationship between the 1st Appellant and the 1st Respondent, only the 2nd Appellant was the customer of the 1st Appellant and not the 1st Respondent. Thus, it was right to refuse to unblock the account of the 1st Respondent as there was no privity of contract between them as held in MAKWE V. NWUKOR (2001) 14 NWLR (PT. 733) 356. Similarly, that the Tribunal was wrong to have raised the issue unilaterally without calling on the parties to address it as held in EJEZIE V. ANUWU (2008) 12 NWLR (PT. 1101) 446.
Another issue of contention raised by the Appellants Counsel is that the judgment of the Tribunal being conditioned on further investigations is not enforceable since a judgment is to determine the rights and obligations of the parties. On what amounts to a final judgment, he relied on CPC V. INEC (2012) 13 NWLR (PT. 1317) 260, BORISHADE V. FRN (2012) 18 NWLR (PT. 1332) 347. Thus, that the judgment having not decided on the finality of the rights and obligation of the parties cannot be a final judgment to stand. He cited in support POLYCARP OJOGBUE V. AJIE NNUBIA (1972) 6 SC 127.
It is argued that the Tribunal was wrong to grant general damages to the 1st Respondent when such was not asked especially where he failed to prove special damages. He relied on ESIKA V. MEDOLU (1997) 2 NWLR (PT. 485) 69, N.C.B PLC V. BORGUNDU (1999) 2 NWLR (PT. 591) 430. Thus, that it was wrong for the Tribunal to grant general damages to the 1st Respondent. He therefore urged this issue to be resolved in their favour, allow the appeal and strike out the suit for manifest absence of jurisdiction.
The 1st Respondents learned Counsel took his turn here. On infringement of right to fair hearing to address the Tribunal on crucial exhibits, he submitted that the said Exhibits were admitted at pages 77, 125, 133, 137-138 and 140 of the supplementary record. That Exhibits A6, A7, D, E1 and E2 were pleaded and relied on by the 2nd and 3rd Appellants at the Tribunal as their own documents. Thus, they cannot be heard to complain on them again. The issue of privity of contract between the 1st Appellant and the 1st Respondent is contended to be a fresh issue being raised for the first time and liable to be struck out as reinforced in the case of ONI V. CADBURY (NIG) PLC (2016) ALL FWLR (PT. 827) 621. He argued that the Appellants admitted blocking all the accounts of the 1st Respondent even those that were not opened by the 2nd and 3rd Appellants. Thus, that it is trite that parties that will be affected by the decision of the Court must be made parties.
He contended that the Tribunal decided with finality the dispute of the parties as it gave timelines on the happening of events upon which the judgment has different effects. Furthermore, that the Appellants failed to demonstrate how the judgment failed the test of a final judgment. He finally submitted that the Tribunal was right to grant the general damages of the 1st Respondent although its special damages failed because it suffered damages and loss of resources. He urged this Court to dismiss the appeal with punitive cost.
There is another very fundamental issue raised by the Appellants that borders on their breach of fair hearing when the Appellants were not accorded the opportunity by the Tribunal to address it on a number of crucial Exhibits, a primary basis on which the Tribunal reached a decision unfavourable to the Appellants.
The Exhibits herein are Exhibits 2, 3, 4, 5, 7 and 8 attached to the originating application and Exhibits A6, A7, D, E1 and E2 attached to the reply of the 2nd and 3rd Appellants. Although the issue of fair hearing is not a technical one but one of substance, it is quite fundamental; for it is well settled that any proceedings conducted in breach of a party’s fundamental right to fair hearing, which is guaranteed by Section 36 of the 1999 Constitution (as amended), renders the entire proceedings null and void. SeeKOTOYE V. C.B.N. (1989) 1 NWLR (PT. 98) 419 @ 488 C-D.
In admitting and relying on Exhibits A1-A5, the Tribunal at page 77 of the supplementary record held as follows from line 15-20 that The Tribunal simply hereby admits the copies of these documents presented. Truly, they are from a Limited liability company and whether or not the Tribunal would attach a weight to it is a matter that is within the discretion of the Tribunal. Similarly, Exhibit B1 at page 125 was admitted thus in line 28 of the record: Letter of complaint dated 20th September, 2007 is hereby admitted and marked as Exhibit B1.
Further, Exhibit C was admitted in evidence in lines 35-36 at page 133 of the supplementary record. At page 140 of the supplementary record, in lines 7-8, the trial Tribunal held that Heritage Investment and Securities Limited letter dated 9th February, 2007 is hereby admitted and marked as Exhibit C1. Exhibits C1, C2 and C3 were said to be attached to the Reply of the Appellants as contained at page 137 of the supplementary record especially lines 21 and 23. Besides, Lawal Yaro, one of the Counsel to the Appellants did not object to the admissibility of the said documents as contained at page 133 lines 16-17 of the record. Besides, the Tribunal did not need the Appellants Counsel address to ascribe probative value to exhibits admitted. This played out in the case of REV. KING V. STATE (2016) LPELR-40046 (SC), wherein Per NGWUTA, J.S.C, sternly held that:
“The exhibits and oral evidence were received by the trial Court. The trial Court did not need address from Counsel to the parties to decide whether or not a piece of evidence and exhibits admitted should be ascribed probative value, nor are Counsel to the parties entitled to be heard in the evaluation of the evidence before the Court.”
There is no doubt evidence before me that the said Exhibits were tendered and admitted and even argued on while some were not objected to. Thus, the evidential value attached to them cannot amount to breach of fair hearing to the Appellants.
The next hurdle is on the justifiability of holding the 1st Appellant liable for blocking or pledging the CSCS accounts of the 1st Respondent and others when there was no privity of contract between them as alleged by the Appellants learned Counsel. Although there is a cry out on this, the facts and evidence before me are contrary.
First and foremost, the relationship of the 1st Respondent and that of the 1st Appellant are founded on trust. Apposite to this relationship is the provision of Rule (V) of the Code of Conduct for Capital Market Operators (Institutions) attached to the SEC Rules which provides that A capital market operator shall operate securities trading accounts strictly according to clients instructions. The trust relationship also involves giving priority to the instructions of its clients.
This is provided under Section 103 (1) of the Investment and Securities Act, 2007 thus:
103. (1) A securities dealer shall not, except as permitted by Subsection (3) of this section, whether as principal or on behalf of a person associated with him, enter into a transaction of purchase or sale of securities to be traded on the floor of a securities exchange or capital trade point if a client of the securities dealer who is not associated with the securities dealer has instructed the securities dealer to purchase or sell, respectively, securities of the same class and the dealer has not complied with the instruction.
It has been revealed from the evidence that although the 1st Appellant claims that there was no privity of contract between it and the 1st Respondent, it was not only the 1st Respondents CSCS accounts that were blocked by it without justification. It was also found that there was absolutely no directive as it claims from SEC (the regulator of the capital market in Nigeria), Nigerian Stock Exchange, any law enforcement agency or Court of law to the 1st Appellant to pledge the CSCS accounts of the 1st Respondent and others.
More so, there was no directive from the concerned stockbrokers who might have had contractual relationship with the 1st Appellant namely Transworld Investment & Securities Ltd, Lighthouse Assets Management Ltd, Kundila Finance & Securities Ltd and Monument Securities & Finance Ltd to block the CSCS accounts of the 1st Respondent. It is in evidence that the 1st Appellant was not the alpha and omega in dealings with the matter at hand to have decided without authority and resort to the 2nd Respondent (Securities and Exchange Commission-SEC) as the statutory body and lead regulator of the Nigerian capital market saddled with handling such issues. Similarly, by the evidence and testimony of the witnesses, they did not accord the 1st Respondent fair hearing before the pledging the said CSCS accounts. Thus, constituting themselves into the complainant, prosecutor and arbiter in their case, contrary to the principles of natural justice. Therefore, whether there was privity of contract or not, the 1st Appellant cannot be justified for pledging and blocking the CSCS accounts of the 1st Respondent.
It is true that the 1st Respondent pleaded for and asked for special damages of N135, 152, 718.25 being losses suffered as a result of lack of turnover and access to its stocks in the said accounts, but same was dismissed by the Tribunal because it was not pleaded with specificality and particularization nor proved. Nevertheless, the Tribunal awarded general damages to the 1st Respondent. This was the mind of Vaughan Williams, L. J. in the case of CHAPLIN V. HICKS 1911-13 ALL ER (REPRINT) wherein he held that the fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. To my mind this also holds good for a compensation claim.” See also Per BELLO, J.S.C in SPDC NIGERIA LTD V. COLE & ORS (1978) LPELR-3051(SC).
The trial Tribunal in assessing and justifying the award of general damages stated from the second paragraph at page 186 of the record that we are convinced that the Applicant is entitled to be awarded general damages, for same is the direct, natural or probable consequence of what it has suffered It is not in doubt that the Applicant has suffered much losses following the unlawful blockage and pledging of its CSCS accounts by the 1st, 2nd and 4th Respondents Consequently, for unlawfully blocking and pledging the Applicants CSCS accounts opened and managed for it by other stockbrokers for more than three years, we award the sum of Thus, the award of damages for breach of contract or negligence is at the discretion of the Court except where special damages is pleaded and proved to the satisfaction of the trial Court. See Per OGBUAGU, J.S.C in G. K. F. INVESTMENT (NIG) LTD V. NITEL PLC (2009) LPELR-1294(SC). Per OGUNBIYI, J.S.C in ELF PETROLEUM V. UMAH & ORS (2018) LPELR-43600(SC) garnished this when he held:
It is pertinent to re-iterate herein that in the award of General Damages, a wide spread power is given to the Court comparable to the exercise of discretion of the Court. It is enormous and therefore far-reaching and contrary to the contention held by the appellant herein. The measure of general damages is awarded to assuage such a loss, which flows naturally from the defendant’s act. It needs not be specifically pleaded. It suffices if it is generally averred. They are presumed to be the direct and probable consequence of that complained of. Unlike special damages, it is generally incapable of exact calculation.
See also FEDERAL MORTGAGE FINANCE LTD V. HOPE EFFIONG EKPO (2004) 2 NWLR (PT. 865) 100 AT 132, DUMEZ V. OGBOLI (1972), 2 SC 196 AND WASO V. KALLA (1978) 3 SC 21. Accordingly, there is rightness and propriety in the award of general damages to the 1st Respondent as the circumstances of this case suggest.
This now brings me to the last slab of the issues herein. The Tribunal’s judgment is challenged for being conditioned on the outcome of some investigations. A final judgment confers rights on the person in whose favour the judgment has been awarded. It will no doubt be an unjustified interference with such vested rights to annul them retrospectively and render them void. Such result is without doubt absurd. See Per KARIBI-WHYTE, J.S.C in UDOH & ORS V. ORTHOPAEDIC HOSPITALS MANAGEMENT BOARD & ANOR (1993) LPELR-3308(SC). In the present case, the 1st Respondent sought from the trial tribunal:
1. An order of this Honourable Tribunal directing the Respondents jointly and severally to cause or direct the lifting of the suspension or blockage of the 1st applicants accounts with CSCS (the 4th Respondent)
The said accounts are:
a. Account No.66067395 (Heritage Investment & Securities Ltd
b. Account No.7267692 (Light House Asset Management Ltd)
c. 70624812 (Transworld Investment & Securities Ltd)
d. 97911433 (NMAIS Special Account)
e. (Kundila Finance & Securities Ltd)
f. 55783749 (Monument Invest. & Finance)
2. AN ORDER of this Honourable Tribunal directing the 1st, 2nd and 4th Respondents jointly and severally to pay the Applicants the total sum of N135, 152, 718.25 being losses suffered as a result of lack of turn over and access to its stocks in the said accounts.
3. AND for such further order(s) as this Honourable Tribunal may deem fit to make in the circumstances of this application.
In the judgment of the Tribunal delivered on 16/6/2010 contained at pages 165-190 of the record, the Tribunal precisely at pages 189-190 gave out 10 paragraphs in its judgment.
However, paragraphs 1, 2, 3, 6, 7 and 8 are all conditioned on outcome of investigations directed by the Tribunal. Thus, the enforceability of some paragraphs of the judgment is premised on the outcome of the investigations or happening of some events although with a timeline while others are timeless. I must say that such a judgment is not good enough. Thus, whereas the judgment of the lower Court was delivered and it shifted the realization of the desire or relief/rights of the claimant, and predicated it on some intervening external acts of an amorphous body, which was expected to commence action from the date of the judgment and translate the intention of the trial Court, within 3 months, from the date of the judgment, and to report same to the Court, for a final order! In effect the “judgment” or “order” of the said judgment was postponed to a future date! That sounds ridiculous, in my view, to say the least. See Mbaba, JCA in OKORIE V. OKORIE (2016) LPELR-41503(CA), OHUABUNWA VS DURU & ORS (2008) LPELR – 4699 CA; UBN VS ISHOLA (2000) 11 NWLR (PT. ) 283, UMEH & ANOR VS IWU & ORS (2006) LPELR 5497 (CA).
Nevertheless, paragraphs 4, 5, 9 and 10 are valid, encompassing and can sustain the reliefs sought by the 1st Respondent. In fact, they aptly capture the reliefs sought by the 1st Respondent and are enforceable against the Appellants. In the case of C.P.C. V. INEC (2013) ALL FWLR (PT. 665) 364 AT 385, the Supreme Court held that the essential requirements of a judgment ordinarily, apart from formal introductory and concluding of the same are: (a) In a civil matter, including election petitions, the facts of the case, as pleaded by the parties, have to be set out and dealt, with; (b) The issues that arise for determination have to be spelt out, (c) The resolution of the issues for determination (d) There has to be a final order of the Court, vis-a-vis the deposition of the reliefs sought in the matter, that is by granting or refusing the same as a whole or in part and the judgment is authenticated by the judge’s signature.
A judgment is accepted as valid and possessing legal force if delivered after due process, and there is nothing extrinsic which renders its decision defective. See the dictum of Bairamian, J.S.C. in MADUKOLU V. NKEMDILIM (1962) 1 ALL N.L.R. 587. Every valid judgment delivered by a competent Court is presumed to be right.
The burden is therefore, on an Appellant to show why the judgment he has appealed from in a civil case should be set aside. If he cannot clearly convince the appeal Court or if all he has done merely raises a doubt whether the judgment is right or wrong, the judgment stays and the appeal fails. See Per UWAIFO, J.S.C in OBULOR & ANOR V. OBORO (2001) LPELR-2196(SC). The rights and obligations of the parties herein have been copiously determined by paragraphs 4, 5, 9 and 10 contained in the judgment of the Tribunal to sustain the judgment. Per BRETT, J.S.C in ARIYO V. OGELE (1968) LPELR-25466(SC) emphasized this issue that where a Court gives a judgment which it has power to give, that judgment will not necessarily be invalidated by the fact that the Court misdirected itself as to the extent of the various courses open to it. See also Fatayi Williams J. in FORFIE V. SEIFAH (1958) 1 ALL E.R. 289. Thus, I cannot throw the baby out with the bathwater. Consequently, this issue is also resolved against the Appellants.
Consequently, having resolved the issues against the Appellants, the judgment of the Investments and Securities Tribunal, holden at Kano in Suit K/47/2014 presided over by Hon. Wilfred D. Ikatari (Chairman), Ahmad Rabiu and Mohammed A. Dahiru, delivered on 16/6/2010 by Hon. Wilfred D. Ikatari (Chairman), wherein the Claims of the 1st Respondent against the Appellants were granted, is hereby affirmed. I make no order as to costs.
OBIETONBARA O.DANIEL-KALIO, J.C.A.: I have read the draft judgment of my learned brother UWANI M. ABBA AJI JCA. I agree.
AMINA AUDI WAMBAI, J.C.A.: I have read before now the judgment just delivered by my Lord Uwani Musa Abba Aji, JCA and I completely agree with the reasoning and conclusion arrived at. For the sound reasoning in the lead Judgment, which I adopt as mine, I too dismiss the appeal and affirm the decision of the lower Court.
Appearances
GODWIN OMOAKA, ESQ. WITH HIM, DENNIS E. OMOROJOR, ESQ. For Appellant
AND
SAGIR SULEIMAN GEZAWA, ESQ. FOR THE 1ST RESPONDENT For Respondent
