CITY SECURITIES LTD v. OSOM & ORS (2020)

CITY SECURITIES LTD v. OSOM & ORS

(2020)LCN/14609(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Friday, September 18, 2020

CA/E/462/2013

RATIO

PLEADINGS: JURISDICTION OF THE FEDERAL HIGH COURT

Jurisdiction is the life elixir of the exercise of judicial power. Any exercise of judicial power without the requisite jurisdiction is an exercise in futility as any outcome emanating therefrom would be incapable of conferring any legal benefits. See CHIEF OF AIR STAFF & ORS VS. IYEN (2005) 1 SC (PT II) 123 and UYAEMENAH NWORA & ORS VS NWEKE NWABUEZE NSCQR 46 2011 PAGE 409. Courts are created by statutes, the jurisdiction of a Court is therefore not inferred or assumed but must have been expressly prescribed by the enabling law establishing the said Court. See GARBA VS. MOHAMMED & ORS (2016) LPELR-40612 (SC), GAFAR VS. THE GOVERNMENT OF KWARA STATE & ORS (2007) LPELR-8073(SC) and OLORUNTOBA-OJU & ORS VS. ABDUL-RAHEEM & ORS (2009) LPELR-2596 (SC).
Furthermore, the guide towards determining whether a particular Court has jurisdiction to adjudicate on a given matter, is provided by the claims contained in the originating processes of the Plaintiff or Claimant as the case may be. In other words, it is the claims submitted by a Plaintiff or Claimant which would be examined to see if it comes within the prescribed jurisdiction of the particular Court. So for the Court to validly exercise jurisdiction in a given matter, the claim of the Plaintiff or Claimant must come within its prescribed jurisdiction. See GARBA VS. MOHAMMED & ORS (Supra), ADEYEMI & ORS VS. OPEYORI (1976) LPELR-171 (SC) and KAKIH VS. PDP & ORS (2014) LPELR-23277(SC). The contention of the Appellant that the jurisdiction in respect of the action of the 1st Respondent is vested exclusively in the Federal High Court as the 2nd Respondent is an agency of the Federal Government is predicated on Section 251 (1) (r) of the Constitution which provides thus:
(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 –
(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.
The Respondents are however unanimous in agreeing with the trial Tribunal that jurisdiction was validly conferred on it by Section 284 (1) of the Investment and Securities Act (supra) which provides thus:
(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 organisation;
(b) the Commission and self regulatory organisation;
(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.
The jurisdiction of the Federal High Court is not just determined by the parties as contended by the Appellant but also by the claims or subject-matter of dispute. See KAKIH VS. PDP & ORS (supra) and PDP VS. SYLVA & 2 ORS (2012) ALL FWLR (PT.637) 606. In this instance, the claim submitted by the 1st Respondent to the trial Tribunal relates to a dispute between a stock market investor on one hand and the operators of his investment and regulator of the stock market on the other side. A perusal of Section 251 (1) of the Constitution does not disclose any portion thereof vesting jurisdiction in respect of the 1st Respondent’s claims in the Federal High Court. On the other hand the said claims fall squarely within the contemplation of Section 284 (1) of the Investment and Securities Act (supra) as held by the trial Tribunal and in line with the submissions of the eminent counsel for the respective Respondents. Per JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

RATIO

PLEADINGS: GENERAL DAMAGES

It is trite law that a Court has wide latitude in making an award of general damages where it is claimed. General damages are generally incapable of exact calculation and are usually 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 the act complained of. See AKINTERINWA VS. OLADUNJOYE (2000) 1 NWLR (PT 659) 93 AT 115, UBN PLC VS. IKWEN (2000) 3 NWLR (PT. 646) 223 at 237 and ELF PETROLEUM VS. UMAH & ORS (2018) LPELR-43600 (SC).
Apart from legal fees of N2 Million under (A) (v), the 1st Respondent made what he referred to as general and special damages of N49,471,963.20 which were itemized under (A) (i), (ii), (iii) and monthly percentage of 20% as (B) and (C) stated to be other orders the Tribunal may deem fit to make in the circumstances. Further pleadings of the 1st Respondent is Reply to the 2nd Respondent’s pleadings on pages 124-139 of the record of appeal. In paragraph 16 thereof the 1st Respondent stated his claim of general damages in the sum of N47,911,208.40 which supports the submission of his counsel on the issue. On the third paragraph of page 638 of the records, the Tribunal in the vexed judgment held in respect of the award of general damage thus:
In this case of established negligence and resultant damage, the Applicant is entitled to be awarded general damages against the 2nd Respondent. See SPDC VS TIEBO V11 (1996) 4 NWLR (PT 445) 663. The award of damages here is for the losses, costs, trauma and stress the Applicant suffered while trying to secure duplicate certificates from the 2nd Respondent. The award is the direct, natural or probable consequence of what he has suffered in the hands of the 2nd Respondent. See OSCAR CONCORD FRANCE & SECURITIES LTD VS OGUNLEYE (2008) ALL FWLR (PT 427) 48 @ 64 Paras. G – H. Per JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

CITY SECURITIES LTD APPELANT(S)

And

1. HON. (PRINCE) SONNY EDET OSOM 2. SECURITIES AND EXCHANGE COMMISSION 3. MRS OIL NIGERIA PLC RESPONDENT(S)

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Investment and Securities Tribunal delivered on the 4th June, 2013 by W.D. IKATARI, Presiding Chairman, T.C. OSAMMOR, Hon. Member, U.S. BABURA, Hon. Member and S.A. Yelwa, Hon. Member.

The 1st Respondent, who had invested in the shares of the 3rd Respondent, lost his original share certificate in a fire incident upon which he contacted the Appellant as the Registrars of the 3rd Respondent for replacement. Despite fulfilling all necessary formalities, the 1st Respondent was not issued the requested replacement certificate for several years upon which he notified the 3rd Respondent and when he failed to get any respite, he eventually escalated the issue to the attention of the 2nd Respondent at whose instance the said replacement certificate was eventually issued by the Appellant.

At this stage, the 1st Respondent decided to abandon the replaced certificate and opted to initiate an action at the trial Tribunal wherein he sought the following reliefs:
GENERAL AND SPECIAL DAMAGES:
(A) Payment of N51,471,963.20 being value of

Applicant’s 3333 shares in MRS OIL NIGERIA PLC (3rd Respondent) including unearned income on non-investment in business of the 3333 shares for over a period of 13 years Nine Months (June 1998 – March, 2012) including Bank charges and Legal Fees computed/obtained as follows:
(i) 3333 X N435.00- being each share price as per attached 2008 stock market price summary N1,451,854.80 (Exhibit Z). (Being value of 3333 shares when Applicant needed the shares Certificates to sell, raise or obtain Bank loan for various Investments/Execution of Contracts)
(ii) Add 20% of N1,451,854. 80 per month for 13 years 9 months (165 Months) as income Profit Accruable (N1,451, 854. 80 x 165x 20%) – N47, 911,208.40 Being payment for losses/ unearned income arising from non-investment of 3333 shares during the period of 13 years 9 months (165 Months) June 1998 to March, 2012.
(iii) Add 10% of N1,089,000.00 (i.e. 10% of 2500 x 435.60 each share price) N108, 900. 00. Being payment of a refund of Union Bank charges on the indemnity given to City Securities Limited and MRS Oil Nigeria Plc On 26/6/1998 against all claims, Demands, loses, moneys, damages, costs and

expenses that could arise. After City Securities Limited and MRS Oil Nigeria Plc, had issued me a Replacement Certificate for the 2500 Shares) the amount is the equivalent. In the year 2008 when in 1998, I paid Union Bank their charges/commission for the indemnity.
(iv) Sub Total N49,471,963.20
(v) Add Legal Fees N 2,000,000.00
(vi) TOTAL N51,471,963.20
B) Payment of 20% of N1,451,854.80 monthly from April 2012 to the day judgment is given at the Tribunal or Appeal Court.
(C) And other orders the Tribunal may deem fit to make in the circumstance.

The Appellant, 2nd and 3rd Respondents each contested the action on various grounds and after taking evidence and final addresses from the respective counsel, the trial Tribunal found in favour of the 1st Respondent, dismissed the action against the 2nd Respondent (1st Respondent at trial), found the Appellant (2nd Respondent at trial) liable for negligence and ordered it to pay various sums of money as damages and also found the 3rd Respondent (3rd Respondent at trial) liable for dereliction of duty and ordered it to pay cost to the 1st Respondent.

Dissatisfied, the Appellant invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on the 12th August, 2013. The said Notice of Appeal was amended via the Amended Notice of Appeal filed on the 9th January, 2014 but deemed properly filed and served on the 13th June, 2016.

At the hearing of the appeal, the learned counsel for the Appellant, Mr. Onovo adopted the Amended Appellant’s brief filed on the 16th June, 2016 but deemed properly filed and served on the 29th January, 2018 as well as the respective Reply briefs to the briefs of the 1st, 2nd and 3rd Respondents filed on the 11th May, 2017, 26th January, 2018 and 9th May, 2017 as the arguments of the Appellant in this appeal.

For the 1st Respondent, Mr. Adawo adopted his brief filed on the 23rd September, 2015 but deemed properly filed and served on the 29th January, 2019 as the arguments of the 1st Respondent in contesting this appeal.

For the 2nd Respondent, Mrs. Uko adopted its Amended brief filed on 14th January, 2019 but deemed properly filed and served on 9th May, 2019 as its arguments in contesting the appeal while the 3rd Respondent’s brief filed on the 21st April, 2016 was deemed

adopted as the arguments of the 3rd Respondent in contesting the appeal.

The Appellant distilled seven issues for determination which were adopted by the 1st Respondent. The said issues are as follows:
(a) Whether the Tribunal had the jurisdiction to hear and determine this suit.
(b) Whether the Tribunal was right to hold that Appellant was in breach of statutory obligation because it did not issue the Requested Certificates to the 1st Respondent at a time earlier than when it did, and if yes, whether such can be a basis for awarding damages to the 1st Respondent.
(c) Whether the Tribunal was right to hold CSL personally liable to the 1st Respondent in the circumstances.
(d) Whether the Tribunal was right to have awarded the 1st Respondent’s claim of two million Naira (N2,000,000.00) claimed as legal fees.
(e) Whether the Tribunal was right to have awarded Ten Million Naira (N10,000,000.00) in general damages, or at all, in favour of the 1st Respondent despite dismissing the claim of the 1st Respondent for “general and special damages” as per reliefs (A)(i), (A)(ii), (A)(iii) and (B) of the 1st Respondent.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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(f) Whether the Tribunal was right to apportion among the Respondents their liability to the 1st Respondent when the claims of the 1st Respondent was made jointly and severally against the Respondents.
(g) Whether the suit and judgment are binding on CSRL.

The 2nd Respondent on its part formulated two issues for determination based on its interest in the appeal which are essentially issues (a) and (f) of the Appellant, thus:
i. What is the legal implication of claiming against the Respondents ‘jointly and severally’.
ii. Did the Tribunal have jurisdiction to hear the original application.

The 3rd Respondent on its part formulated four issues equally based on its interest in the appeal as follows:
a. Whether the Tribunal had the Jurisdiction to hear and determine the suit.
b. Whether the Tribunal was right to hold the Appellant personally liable to the 1st Respondent in the circumstances.
c. Whether the Tribunal was right to hold that the Appellant herein was in breach of its statutory obligation because it failed to issue the requested certificate to the 1st Respondent promptly.
d. Whether the suit and

judgment is binding on CSRL.

A perusal of the different sets of issues, reveals that the issues formulated by the Appellant and adopted by the 1st Respondent contains the two issues of the 2nd Respondent as well as the four issues of the 3rd Respondent. I shall therefore adopt the issues formulated by the Appellant and appropriately juxtapose the arguments therein with those of the Respondents.
The first issue is:
Whether the Tribunal had the jurisdiction to hear and determine this suit.

The Appellant argued that notwithstanding any provisions in the Investment and Securities Act, 2007, jurisdiction in the subject matter of dispute was in the Federal High Court pursuant to Section 251(1)(r) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and that the trial Tribunal therefore lacked jurisdiction to adjudicate in a matter involving the administration of an agency of the Federal Government. He argued that the issue being of jurisdiction could be raised for the first time on appeal without leave of Court. He referred to S.E.C VS KASUNMU (2009) ALL FWLR (PT 475) 1684 at 1704, A.S.E.S.A VS EKWENEM (2009) KLR (PT 270)

1803 at 1816, SLB CONSORTIUM LTD VS NNPC (2011) 4 KLR (PT 295) 1085 at 1094 and OPOBIYI VS MUNIRU (2011) 12 KLR (PT 303) 3007 at 3018.

The argument of the learned counsel for the 1st Respondent on this was that the jurisdiction of the Federal High Court in any given instance is determined by the subject-matter of the suit which must fall squarely within Section 251 of the Constitution and not just because it was against an agency of the Federal Government. He pointed out that the present suit was a complaint from a stock market investor against stock market operators which is not covered by Section 251 of the Constitution. He referred to OLORUNTOBA-OJU VS DOPAMU (2003) FWLR (PT 158) 1264, HON. GOODLUCK OPIA VS INEC (2014) LPELR-SC.16/2013 and TERFA KAKIH VS PDP (2014) LPELR-SC.236/2013.

Mrs. Uko for the 2nd Respondent shared the same position and reiterated that exclusive jurisdiction of the subject-matter of dispute was in the trial Tribunal. He referred to AJAYI VS SEC (2009) 13 NWLR (PT. 1157) 1 at 26 and the unreported judgment of this Court in CA/A/105/M/08: CADBURY (NIG) PLC VS SEC & ANOR delivered on 10th July, 2009.

The learned counsel for the 3rd Respondent towed a similar line with the other Respondents and submitted that the jurisdiction conferred on the Federal High Court in Section 251 (1) (r) of the Constitution cannot be stretched to include the present action.

In his reply arguments, Mr. Onovo reiterated his earlier position that the trial Tribunal lacked jurisdiction to adjudicate on the suit of the 1st Respondent as exclusive jurisdiction was vested in the Federal High Court pursuant to Section 251 (1) (r) of the Constitution.

and OLORUNTOBA-OJU & ORS VS. ABDUL-RAHEEM & ORS (2009) LPELR-2596 (SC).
Furthermore, the guide towards determining whether a particular Court has jurisdiction to adjudicate on a given matter, is provided by the claims contained in the originating processes of the Plaintiff or Claimant as the case may be. In other words, it is the claims submitted by a Plaintiff or Claimant which would be examined to see if it comes within the prescribed jurisdiction of the particular Court. So for the Court to validly exercise jurisdiction in a given matter, the claim of the Plaintiff or Claimant must come within its prescribed jurisdiction. See GARBA VS. MOHAMMED & ORS (Supra), ADEYEMI & ORS VS. OPEYORI (1976) LPELR-171 (SC) and KAKIH VS. PDP & ORS (2014) LPELR-23277(SC).

The contention of the Appellant that the jurisdiction in respect of the action of the 1st Respondent is vested exclusively in the Federal High Court as the 2nd Respondent is an agency of the Federal Government is predicated on Section 251 (1) (r) of the Constitution which provides thus:
(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 –
(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.
The Respondents are however unanimous in agreeing with the trial Tribunal that jurisdiction was validly conferred on it by Section 284 (1) of the Investment and Securities Act (supra) which provides thus:
(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 organisation;
(b) the Commission and self regulatory organisation;
(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.
The jurisdiction of the Federal High Court is not just determined by the parties as contended by the Appellant but also by the claims or subject-matter of dispute. See KAKIH VS. PDP & ORS (supra) and PDP VS. SYLVA & 2 ORS (2012) ALL FWLR (PT.637) 606. In this instance, the claim submitted by the 1st Respondent to the trial Tribunal relates to a dispute between a stock market investor on one hand and the operators of his investment and regulator of the stock market on the other side. A perusal of Section 251 (1) of the Constitution does not disclose any portion thereof vesting jurisdiction in respect of the 1st Respondent’s claims in the Federal High Court. On the other hand the said claims fall squarely within the contemplation of

Section 284 (1) of the Investment and Securities Act (supra) as held by the trial Tribunal and in line with the submissions of the eminent counsel for the respective Respondents.

In the circumstances, I resolve this issue in favour of the Respondents and against the Appellant.
The next issue is:
Whether the Tribunal was right to hold that Appellant was in breach of statutory obligation because it did not issue the Requested Certificates to the 1st Respondent at a time earlier than when it did, and if yes, whether such can be a basis for awarding damages to the 1st Respondent.

On this second issue, Mr. Onovo contended that the trial Tribunal erroneously made findings implying that the Appellant breached some undefined statutory duties with regards to its failure to promptly issue the requested duplicate share certificate and imposed damages, whereas the 2nd Respondent which had statutory responsibilities for making rules and regulations in respect thereof, did not stipulate any time limit for issuance of duplicate share certificates. The learned counsel submitted that statutory duties are not implied but must be expressly provided by statute.

He referred to GOVERNOR OF ZAMFARA STATE VS GYALANGE (2012) 4 KLR (PT 310) 1535.

The learned counsel argued further that the trial Tribunal erroneously relied on Code 6 of the Code of Conduct for Capital Market Operators and their Employees (hereinafter called Code of Conduct) as the said code 6 applied to employees of Registrars and not their employers and that the said code 6 did not mention duplicate certificates thereby implying that it did not include duplicate certificates.

He further contended that even if the Appellant failed to deliver the duplicate share certificate on time and that it amounted to a statutory breach, specific sanctions for violations were stipulated in the said Code of Conduct which did not include payment of damages to an aggrieved investor. He submitted that the trial Tribunal cannot impose sanctions or penalties not expressly provided by statute and referred to BEECHAM GROUP LIMITED VS ESSDEE FOOD PRODUCTS NIGERIA LTD (1985) 3 NWLR (PT. 11) 112, GOVERNOR OF ZAMFARA STATE VS GYALANGE (supra) at 1545 and NDOMA-EGBA VS CHUKWUOGOR (2004) 2 KLR (PT 173) 671 at 691.

The response of Mr. Adawo for the 1st Respondent was that

the facts and circumstances of the case disclosed willful negligence on the part of the Appellant which entitled the 1st Respondent to be compensated in damages as would restore him to where he would have been if there had been no such breach. He referred to M.O. KANU SONS & CO. LTD VS FIRST BANK OF NIGERIA PLC (2006) 5 SC (PT 111) 80, CAMEROON AIRLINES VS OTUTUIZU (2011) LPELR-827(SC), UNION BANK OF NIG. PLC VS ESKOL PAINTS NIG. LTD (1997) 8 NWLR (PT 515), CROSS LINES LTD VS THOMPSON (1993) 2 NWLR (PT 273) 74 and JAMMAL ENGINEERING LTD (1974) 4 SC 33.

Learned counsel referred to Section 269(1)(c) of the Investment and Securities Act (supra) which empowered the 2nd Respondent to make rules and regulations and pursuant to which it made the Code of Ethics and submitted that the 1st Respondent having done on all his part to be done, the Appellant offered no justifiable explanation for the delay in issuing the said certificates. He distinguished the case of GOVERNOR OF ZAMFARA STATE VS GYALANGE (supra) and submitted that having made out a case of negligence, the 1st Respondent was under the principle of ubi jus ibi remedium entitled to be compensated in

damages irrespective of the fact that no remedy was provided in the statutes. He referred to AMAECHI VS INEC (2007) 18 NWLR (PT. 1065) 98, OYEKANMI VS NEPA (2000) 15 NWLR (PT. 690) 414 and BLUE-CHIP ACQUISITION AND INVESTMENT COMPANY LTD VS ZENITH BANK PLC (2007) 2 NISL 61 at 89.

The 2nd Respondent did not proffer any argument on this issue while the 3rd Respondent argued that while no time frame was stipulated for the issuance of duplicate certificates, a delay of over ten years could not have been contemplated and that the Appellant could not be permitted to benefit from its own wrong doing.

In its reply briefs, the Appellant reiterated that the breach allegedly involved a statutory duty unrelated to the tort of negligence and urged the Court to discountenance the arguments of the Respondents.

It is instructive that the Appellant is not contending that it has a duty to issue replacement share certificates to investors who lost their original share certificates. It is also noteworthy that the Appellant is not arguing that the 1st Respondent failed to justify his entitlement to the certificates requested for. Furthermore, the Appellant did not at

any time deny that the 1st Respondent suffered a delay of well over ten years before the said replacement certificates were provided. It goes without saying that investments are made with a profit motive and that the delay suffered in this instance was not only inordinate and unconscionable but as was demonstrated during the trial, occasioned substantial financial embarrassment to the 1st Respondent.
The argument of the Appellant that the award of damages made in favour of the 1st Respondent was not contemplated by the statute seems to have created a perfect scenario for invocation of the legal principle of ubi jus ibi remedium. It is common grounds to all parties that the Appellant had a duty to the 1st Respondent which it breached and in respect of which the 1st Respondent suffered. 1st Respondent was therefore deserving of a remedy irrespective of the failure of the statute to so provide. See OYEKANMI VS. NEPA (2000) LPELR-2873(SC) at 40.
Any failure of the trial Tribunal to award damages in the circumstances presented would do incalculable damage to investor confidence in the operations of the Nigerian capital market with attendant implications

for the Nigerian economy. Impunity as demonstrated by the Appellant in the circumstances presented here, must not be condoned by the Courts otherwise it would be failing in its duty to the economy of the nation as envisaged by Section 16 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
I therefore resolve this issue as well in favour of the Respondents and against the Appellant.

Next issue is:
Whether the Tribunal was right to hold CSL personally liable to the 1st Respondent in the circumstances.

On this third issue, the learned counsel for the Appellant argued that as an agent of the 3rd Respondent, its disclosed principal, the Appellant ought not to have been held personally liable to the 1st Respondent. Learned counsel referred to UNION BANK OF NIGERIA LTD VS EDER (1993) 4 NWLR (PT 287) 288 at 302, ITAMBONG VS AKONYE (1964) NMLR 128 at 130 and NDILI VS AKINSUMADE (2000) 8 NWLR (PT 668) 293 at 341.

Contrariwise, the 1st Respondent argued that in addition to being an agent of the 3rd Respondent, the 1st Respondent had basic statutory duties as a stock market operator which it breached and for which it was

appropriately held liable by the trial Tribunal. He submitted that being an agent does not mean that the Appellant could not incur personal liabilities and referred to ASAFA FOODS FACTORY LTD VS ALRAINE (NIG.) LTD (2002) 12 NWLR (PT 781) 353.

The 2nd Respondent once more did not offer any point of view on this issue while the learned counsel for the 3rd Respondent submitted that the 3rd Respondent could not be held responsible for the negligence of the Appellant in this instance as the Appellant was for all intents and purposes an independent contractor answerable to the investors, regulatory body and the company it represents.

In his reply arguments, the learned counsel for the Appellant reiterated that the Appellant acted as agent of the 3rd Respondent and could not be held liable as agent of a disclosed principal and that in any event, having been found negligent, the liability of the 3rd Respondent remained unshaken even if the Appellant was an independent contractor. He referred to SGBN LTD VS ELEGANZA IND. LTD (2004) 8 NWLR (PT 875) 432.

Disputations in civil litigations are rooted in pleadings. It is therefore apposite to examine the

state of pleadings exchanged by the parties on the relationship between the Appellant and the 3rd Respondent in the transaction in issue. The 1st Respondent in paragraph 3 of his claim described the Appellant (2nd Respondent at trial) thus:
The 2nd Respondent is a Corporate Body registered with the Securities and Exchange Commission of the Federal Republic of Nigeria and acts as a clearing and settlement agency for the 1st Respondent. They handle among other things, involved in issuance/delivery of shares Certificates to the 3rd Respondent’s shareholders. They are also the Registrars of the 3rd Respondent.
This averment was expressly admitted by the Appellant and the 3rd Respondent in their respective pleadings. It is trite that what is admitted needs no further proof. See IWUOHA VS. NIPOST (2003) 8 NWLR (PT. 822) 308, OVERSEAS CONSTRUCTION COMPANY NIG. LTD. VS. CREEK ENTERPRISES NIG. LTD (1985) 3 NWLR (PT.13)407 and NNAMEKA EMEGOKWUE VS. JAMES OKADIGBO (1973) 4 SC 113.
The functions thus attributed to the Appellant were captured in Section 315 of the Investment and Securities Act (supra) as follows:
“transfer agent or registrar”

means any person engaged on behalf of an issuer of securities or on behalf of itself in: (a) creating and maintaining the register of members of an issuer; (b) counter-signing such securities upon issuance; (c) monitoring the issuance of such securities with a view to preventing unauthorised issuance, a function commonly performed by a person called a registrar; (d) registering the transfer of such securities; (e) exchanging or converting such securities; (f) transferring, record ownership of such securities by book-keeping entry without physical issuance of securities certificates.
Furthermore, the Appellant is charged with specific duties as a capital market operator with attendant statutory obligations covering the issuance of duplicate share certificates in Sections 257 and 260 of the Investment and Securities Act (supra) as follows:
257. (1) The registrar may issue duplicate bond certificates and duplicate securities in such circumstances as may be prescribed.
(2) The registrar may issue renewals of bond certificates and promissory notes in such circumstances as may be prescribed.
260. Where an application is made to the registrar

under this part of this Act for the issue of a duplicate security or for the exchange, renewal, consolidation or subdivision of any bond or securities, the registrar may require the applicant as a condition precedent to the grant of the application, to execute a bond with or without sureties undertaking to indemnify the body concerned against the claims of all persons claiming under the original bond certificate or securities or under the bond or securities so exchanged, renewed, consolidated or subdivided, as the case may be.
As well reasoned by the trial Tribunal, the Appellant’s statutory responsibilities under the Investment and Securities Act (supra) cannot be confined within the narrow limits of agency relationship. The Appellant applied and was registered with the 2nd Respondent with independent statutory responsibilities in respect of which liability could be incurred without recourse to the 3rd Respondent. The performance of its stated responsibilities in respect of issuance of duplicate share certificates to the 1st Respondent has no bearing with the 3rd Respondent which has no statutory role to play in the entire process. As a registrar,

the exclusive responsibility for issuing duplicate share certificates, resides in the Appellant and in performing this duty, it is carrying out a statutory obligation in respect of which it could be held liable without recourse to the 3rd Respondent.
I therefore resolve this issue as well against the Appellant and in favour of the Respondents.
The next issue is:
Whether the Tribunal was right to have awarded the 1st Respondent’s claim of Two Million Naira (N2,000,000.00) claimed as legal fees.

Arguing this issue, Mr. Onovo submitted that the claim for legal fees of N2million being special damages, was not properly pleaded as details of services rendered were missing and that evidence adduced in support thereof was perfunctory and did not go to any issue. He referred to ARISONS LTD VS MIL. GOV. OGUN STATE (2009) 6 KLR (PT 268) 1483 at 1501, NWOKOROBIA VS NWOGU (2009) 5 KLR (PT 267) 1303 at 1316, BORNO HOLDING CO. LTD VS BOGOCO (1971) 1 ALL NLR 324 at 330-331 and SAVANNAH BANK PLC VS OPANUBI (2004) 7 KLR (PT 184-186) 2103 at 2121.

The response of Mr. Adawo was that the payment of the said legal fees was pleaded and evidence in

respect thereof adduced without challenge at trial. He referred to the relevant portion of the pleadings as well as adduced evidence at trial. He also referred to UNIVERSAL TRUST BANK OF NIGERIA VS FIDELIA OZOEMENA (2007) ALL FWLR (PT. 358) 1014 at 1049, ECOBANK PLC VS ALHAJI RABIU MOHAMMED (2014) LPELR-CA and CAMEROON AIRLINES VS OTUTUIZU (2011) 4 NWLR (PT 512).

The reasoning and finding of the trial Tribunal on this issue is contained in the second paragraph of page 639 of the record of appeal thus:
Exhibit A34 is a receipt the Applicant’s former lawyer, Sylvester S. Akpan & Associates, issued to him for the payment of Two Million Naira (2,000,000) as professional fee. Further on this, Exhibits A25 and A36 were authored by the same law firm which also filed this suit on Applicant’s behalf. The 2nd Respondent failed to discredit this evidence, and there is no evidence that the lawyer acted pro bono. The Applicant would not have incurred legal fees if the 2nd Respondent had issued him duplicate certificates when he applied for them. Consequently, the 2nd Respondent is hereby ordered to pay the Applicant the sum of Two Million Naira

(N2,000,000) being the professional fees he paid his counsel for the prosecution of this case.
In his claims before the trial Tribunal, the 1st Respondent made a claim for N2 Million as legal fees. At trial, the 1st Respondent testified on the 14th January, 2013 as the sole witness for his case, wherein he among other things, adopted his statement on oath of 5th July, 2012 as part of his evidence in chief. That statement on oath is on pages 6-12 of the record of appeal. In paragraph 44 of the said statement on oath, the 1st Respondent stated as follows:
44. That I have so far spent N2, 000,000.00 (Two Million Naira only) as legal fees/work as per attached Receipt No 074 dated 3rd April, 2012 and marked Exhibit “Y”.
The 1st Respondent was cross-examined by all the counsel for the Respondents including counsel for the Appellant but was not cross-examined on the payment made for legal fees. This in essence implied that the issue was conceded and there was therefore no basis to turn around and castigate the findings of the trial Tribunal in respect thereof. See GAJI & ORS VS. PAYE (2003) LPELR-1300 (SC).

In the circumstances, this issue as well is resolved in favour of the Respondents and against the Appellant.

The next issue is:
Whether the Tribunal was right to have awarded Ten Million Naira (N10,000,000.00) in general damages, or at all, in favour of the 1st Respondent despite dismissing the claim of the 1st Respondent for “general and special damages” as per reliefs (A)(i), (A)(ii), (A)(iii) and (B) of the 1st Respondent.

Mr. Onovo submitted on this issue that the trial Tribunal had no basis to have awarded a general damages of N10 Million against the Appellant having dismissed each of the heads of the 1st Respondent’s claims for general and special damages except the claim for legal fees and that in the event that such damages could be granted under the omnibus prayer which ordinarily should support consequential reliefs, that the trial Tribunal erred in the computation thereof. He referred to OSUJI VS EKEOCHA (2009) 7 KLR (PT 271) 2033 at 2060 and ARISONS LTD VS MIL. GOV OF OGUN STATE (supra).

The counter-argument of Mr. Adawo was that in making the award of general damages, the trial Tribunal was properly guided by extant legal principles and

the facts and circumstances of the present case. Learned counsel referred to YALAJU-AMAYE VS ASSOCIATION OF REGISTERED ENGINEERING CONTRACTORS LTD (1990) NWLR (PT 145) 422, JULIUS BERGER VS OGUNDEHIN (2014) 2 NWLR (PT 1391) 388 at 429, SALAU VS ARABA (2004) ALL FWLR (PT 2004) 88, ADELAKUN VS ORUKU (2006) 11 NWLR (PT 992) 625 and BRIG. GENERAL ADEKUNLE VS ROCKVIEW HOTEL (2004) 1 NWLR (PT 853) 161.

itemized under (A) (i), (ii), (iii) and monthly percentage of 20% as (B) and (C) stated to be other orders the Tribunal may deem fit to make in the circumstances. Further pleadings of the 1st Respondent is Reply to the 2nd Respondent’s pleadings on pages 124-139 of the record of appeal. In paragraph 16 thereof the 1st Respondent stated his claim of general damages in the sum of N47,911,208.40 which supports the submission of his counsel on the issue. On the third paragraph of page 638 of the records, the Tribunal in the vexed judgment held in respect of the award of general damage thus:
In this case of established negligence and resultant damage, the Applicant is entitled to be awarded general damages against the 2nd Respondent. See SPDC VS TIEBO V11 (1996) 4 NWLR (PT 445) 663. The award of damages here is for the losses, costs, trauma and stress the Applicant suffered while trying to secure duplicate certificates from the 2nd Respondent. The award is the direct, natural or probable consequence of what he has suffered in the hands of the 2nd Respondent. See OSCAR CONCORD FRANCE & SECURITIES LTD VS OGUNLEYE (2008) ALL FWLR (PT 427) 48 @ 64 Paras. G – H.

Accordingly, we award the sum of Ten Million Naira (10,000,000) as general damages against the 2nd Respondent in favour of the Applicant.
The Appellant has failed to show how the award here was made on an improper basis necessitating the interference of this Court. The pleadings and adduced evidence here support the award made by the trial Tribunal.

In the circumstances, I resolve this issue in favour of the Respondents and against the Appellant.

The next issue is:
Whether the Tribunal was right to apportion among the Respondents their liability to the 1st Respondent when the claims of the 1st Respondent was made jointly and severally against the Respondents.
On this issue, Mr. Onovo argued that it was erroneous of the trial Tribunal to have proceeded to apportion liability among the Respondents to the action contrary to the claim placed before it.
The response of Mr. Adawo was that the 1st Respondent claimed jointly and severally which gave the trial Tribunal the latitude to find any or all the Respondents liable. He referred to DICKSON VS ASAM-UDO (2013) LPELR-20416 and IZUOGU VS EMUWA (1991) 4 NWLR (PT 183) 78.

This line of argument was shared by Mrs. Uko for the 2nd Respondent who equally urged the Court to discountenance the contention of the Appellant.
In his reply briefs, the Appellant reiterated the earlier position.
The pleadings and evidence adduced here made specific allegations against the respective Appellant, the 2nd and the 3rd Respondents as to give the trial Tribunal sufficient latitude to make findings of individual liabilities. I cannot therefore agree with the Appellants on this issue and I must resolve this issue in favour of the Respondents.

The remaining issue is:
Whether the suit and judgment are binding on CSRL.

The arguments of the Appellant in this regards are that a certain City Securities Registrars Ltd, (CSRL) was not directly named in the action as a party thereto and was accordingly not bound by the outcome thereof. Learned counsel referred to ESENOWO VS UKPONG (1999) 6 NWLR (PT 608) 611 at 617.

The 1st Respondent however objected to the said issue on the grounds that it was fresh and was raised without the leave of Court having been first obtained. Learned counsel referred to CHUKWUEMEKA OJIOGU VS LEONARD OJIOGU

(2010) 9 NWLR (PT 1198) 1 and CORPORATE IDEAL INSURANCE LTD VS AJAOKUTA STEEL CO. LTD (2014) 7 NWLR (PT 1405) 165 at 188.

Mr. Adawo further argued that even if the said issue could be raised, the Appellant having admitted it in the pleadings and various documents before the Court could not approbate and reprobate on the issue. He referred to AYOKE VS BELLO (1992) 10 NWLR (PT 218) 380.

The position of the 3rd Respondent was that the issue did not arise from the judgment of the trial Tribunal and that in any case the position now canvassed had been conceded in the pleadings by the Appellant.

The reply argument of the Appellant was that being a ground complaining of the failure of the trial Court to make a finding, it could not be faulted as a fresh issue and that it was also an issue of jurisdiction. Learned counsel referred to OBIONWU VS INEC (2013) LPELR-22573(CA) and OPOBIYI VS MUNIRU (2011) 12 KLR (PT 303) 3007 at 3018.

A perusal of the entire judgment of the trial Tribunal discloses that there is no portion thereof relating to this issue. This however is not surprising considering the state of the pleadings of the parties. In paragraph 5

of his claim, the 1st Respondent averred thus:
Any reference to City Securities Limited also implies City Securities (Registrars) Limited. They are the same person as evidenced in letter Heads used in communicating with the Applicant in Exhibit “A” and “B” annexed herewith.
In paragraph 2 of its pleadings, the Appellant pleaded thus:
The 2nd Respondent admits paragraphs 2, 3, 4 and 5 of the Applicant’s Claim.
The admission here was unequivocally made without any room for ambiguity. No issue was joined thereby obviating any necessity for findings being made.
There was no issue of jurisdiction involved in this issue that did not arise from the judgment of the trial Tribunal. It ought to have been raised with the leave of Court and the absence of such leave rendered it incompetent. See IWUOHA VS. NIPOST (supra), OVERSEAS CONSTRUCTION COMPANY NIG. LTD. VS. CREEK ENTERPRISES NIG. LTD (supra) and NNAMEKA EMEGOKWUE VS. JAMES OKADIGBO (supra).

This issue as well is resolved against the Appellant and in favour of the Respondents.
In totality, this appeal is devoid of merit and it is accordingly dismissed.

The judgment of the trial Tribunal is hereby affirmed.
Cost of N200,000.00 is awarded against the Appellant and in favour of each of the Respondents.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA. I agree with his reasoning and conclusion that the appeal has no merit and is hereby dismissed.

ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA just delivered. I agree with the reasoning and conclusion contained therein.

I find myself in accord with his reasoning that this appeal is devoid of merit and same is hereby dismissed. The judgment of the trial tribunal is hereby affirmed.
I abide by the consequential order as to cost.

Appearances:

Mr. G. Onovo For Appellant(s)

Mr. N. Adawo for the 1st Respondent

Mrs. N.N. Uko for the 3rd Respondent For Respondent(s)