EZE OKOROCHA v. UNITED BANK FOR AFRICA PLC & ORS(2018)

EZE OKOROCHA v. UNITED BANK FOR AFRICA PLC & ORS

(2018) LCN/4608(SC)

In The Supreme Court of Nigeria

On Friday, the 13th day of July, 2018

SC.323/2010

RATIO

WHETHER WHERE A PRELIMINARY OBJECTION IS RAISED, IT SHOULD FIRST BE DETERMINED BEFORE DETERMINING THE SUBSTANTIVE APPEAL

It is settled law, that Preliminary objection where raised by a party, should firstly be determined before determining the substantive appeal if the need to do so arises. PER AMIRU SANUSI, J.S.C.

IMPORTANCE OF THE ISSUE OF JURISDICTION TO ADJUDICATION

…it is trite law that jurisdiction is the lifewire of any case and is a thresh-hold which is so fundamental that any decision reached by any Court of law no matter how superb, beautiful, or sound such case, it is a nullity once such trial Court or tribunal or appellate Court lacks jurisdiction to determine or adjudicate on the matter or appeal. It is settled law, also that jurisdiction is often donated to the Court by statute. PER AMIRU SANUSI, J.S.C.

JUSTICES

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

JOHN INYANG OKORO Justice of The Supreme Court of Nigeria

AMIRU SANUSI Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

EZE OKOROCHA Appellant(s)

AND

UNITED BANK FOR AFRICA PLC
2. UBA GLOBAL MARKETS LTD
3. BGL SECURITY LIMITED
4. UBA REGISTRARS LIMITED
5. SECURITY AND EXCHANGE COMMISSION Respondent(s)

AMIRU SANUSI, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of Court of Appeal, Lagos division (the lower Court or Court below) delivered on 11th day of May, 2010 which had affirmed the Judgment of the Investment And Securities Tribunal (hereinafter referred to as “the Tribunal”) delivered on 30th September, 2008 at Lagos. In its Judgment now appealed against, the lower Court dismissed the appeal of the appellant and also struck out an application filed by the appellant/applicant for want of jurisdiction to entertain the application filed against the 1st to 4th respondents herein, as tribunal of first instance with regard to the 5th Respondent. The lower Court held that consequent upon its striking out the application of the appellant for want of jurisdiction, the action against the 5th Respondent which emanated as a result of the alleged default of the 1st to 4th Respondents, the action could no longer be sustained or stand.

Before dealing with the issues raised by learned counsel of the parties, My lords please permit me to give brief summary of the facts which gave rise to this appeal in the first Place.

The appellant as applicant approached the Tribunal with an application seeking some declaratory and injunctive reliefs which include the followings:-
1. A declaration that the Respondents are mandated under the Laws and Rules to complete and or ensure that all allotments of the 1st Respondent’s public offer of March 2007 are received by subscribers not later than six weeks after close of the offer and or within the period extended by the 5th Respondent and that they have since failed and neglected in that regard.
2. A declaration that the 1st Respondent breached its contract with the Applicant as per the Applicant’s subscription for the 1st Respondent’s shares at the prescribed time for allotment of the Applicant’s said shares
3. A declaration that the delivery of the Applicant’s share certificate to him on the 1st February 2008 on the said offer was done late and in disregard of the stipulated Rules and guiding Regulations and as a result, the Applicant has suffered damages.
4. An order of mandatory injunction, directing the 1st, 2nd and 3rd Respondents to immediately comply with the Regulations of the Investment and

Securities Act of 1999.
5. An Order restraining the 1st, 2nd, 3rd and 4th Respondents from issuing any share to the members of the public or participating in any public issue to the public, except in accordance with the provisions of the law and Rules and Regulations
7. The sum of N15,000,000= (Fifteen Million Naira Only), as general damages for loss of revenue and opportunity cost of the Applicant’s investment with the 1st Respondent
8. The sum of #7,000,000= (Seven Million Naira) as exemplary damages against the 1st to 4th Respondents
9. The sum of N2,000,000= (Two Million Naira) as special damages against the 1st, 2nd, 3rd and 4th Respondents on account of the Applicant’s legal cost and other incidental expenses
10. An order compelling the Securities and Exchange Commission to Sanction the Respondents for breach of the Investments and Securities Act and the Securities Act and Securities and Exchange Commission Rules and Regulations made pursuant to the Act.

The 1st Respondent had on 23rd of February 2001, advertised for the subscription of its shares and paid the shares of 2,000,000 at N35 per share through the agents of

the 1st Respondent. After waiting for the shares, the appellant was not issued with the share certificate. The appellant thereafter filed an Originating Application against the respondents. Pleadings were filed and exchanged, but the Tribunal suo motu raised issue of jurisdiction to entertain the claim and invited parties to address it and later in its ruling of 30th April 2008, it held that it lacked jurisdiction to entertain the matter and also ruled that the Appellant had not taken step by complaining to the Securities and Exchange Commission.

Dissatisfied with the decision of the Tribunal, the appellant unsuccessfully appealed to the Court below, hence this further appeal to the Supreme Court.

In arguing this appeal the learned counsel for the appellant in his Amended Brief of Argument formulated two issues for determination as argued below.

ISSUE NO 1
Issue no 1 whether the Court below gave a proper interpretation of Section queries whether 284(1)(a) (3) of the Investment and Securities Act 2007 to the effect that the Investment and Securities commission lacks jurisdiction to entertain the appellant’s claims since the

appellant’s claims did not arise from the decision of the 5th respondent.

The learned counsel to the appellant contended that the tribunal ought not to decline jurisdiction to entertain the appellant’s claim as this is against the rule of natural justice rooted in the pillars of justice, namely, audi atteram parten and nemo judere en cause sua. He submitted that fair hearing is an indispensible requirement of justice in any adjudicatory process. He cited the case of ORUGBO V UNA (2002) 9-10 SC 61 at 93-93.

He argued that the interpretation placed by the Court below on the provisions of Section 284 (1)(a) (iii) of the Investment and Security Act 2007 is restrictive and in a gross violation of fundamental principle of natural Justice entrenched in the Constitution. He contended that the 5th Respondent against who the appellant has complained, is a necessary and principal party and that it is not right to submit the complaint of the appellant to the 5th respondent, as doing so, would have been in gross violation and abuse of fundamental principle of fair hearing as the adjudicator would no longer be independent and impartial.

He argued that while it may be conceded that the jurisdiction of Investment and Securities Tribunal to entertain the claims of the appellant as it affects the 2nd – 4th respondents may be conclusive, he then submitted same could be proper in relation to the claim of the appellant against the 1st and 5th Respondents as they are not persons contemplated under Section 284(1)(a) of the Act.

He submitted that the whole statute must be read together in interpretation of a statute. He cited the case of IBRAHIM V MOHAMMED (2003) 2 SC 127 at 183. He contended that the Court below interpreted the provision of Section 284 (1)(a)(iii) of the Investment and Security Act in isolation without reflecting on the facts and circumstance giving rise to this case. He argued that had the Court construed the provision of Section 284 Investment and Security Act as a whole, it would have appreciated that the Jurisdiction of the Tribunal to hear and determine the claim of the appellant is saved under Section 284 (1)(c) and (d) of the Act. He submitted that where a party institutes an action at the Tribunal, without first going to the Securities and Exchange Commission, the

action remains valid as to hold otherwise will lead to an absurd interpretation which will eventually result in disregard and breach of the 1999 Constitution.

ISSUE No 2
Issue no 2 deals with the question whether on a proper interpretation of Section 284(1)(a) and (3) 2007, the Court below was right in holding that the Tribunal was right in declining Jurisdiction.

On this issue, the learned appellant’s counsel submitted with respect to Section 284 (1)(a), that the Securities and Exchange Commission lacks the Jurisdiction to determine questions of law or dispute involving regulatory governance of the operations in the capital market when the Commission itself is the regulatory body, saddled with responsibility of regulating market operation in the securities market. He then urged the Court to resolve this issue in favour of the appellant and allow the appeal.

In response to the argument of counsel for the appellant, the learned counsel for the respondent distilled two issues for determination

ISSUE A
Issue A deals with whether the Court below was right in dismissing the appellant’s appeal.

Here the learned counsel to the 1st – 4th Respondents submitted that the provisions of Section 284 (1)(a) I-IV of the Investment and Security Act 2007 construed by the Court below in arriving at its decision that the Tribunal was right in declining Jurisdiction did not offend any of the rules of natural Justice and or the provisions of Section 36 (1) of the 1999 Constitution. He submitted that the question of Jurisdiction of the trial Court is statutory and that same was aptly provided for by Section 284 (1) (a), (b), (c) (d) (e) (f) (2)(3) of the Investment and Securities Act 2007. He submitted that the Jurisdiction of the Tribunal to hear and determine the claim of the appellant against 1st – 4th Respondents was subject to a decision of the 5th respondent and that it is in consonance with the provisions of Section 284 (1) (a) of I. S. A. He argued that the claim against the 5th Respondent was to condemn the respondents for breach of I.S.A and Securities and Exchange Commission Rules and Regulations made pursuant to the Act. He therefore submitted that by appellant’s claim against the 5th Respondent, no wrong whatsoever was alleged against the 5th respondent and

the question of likelihood of bias on the part of the 5th Respondent in determination of any complaint that may by lodged with the 5th Respondent, does not arise. He submitted that the Court below was right in holding that the tribunal lacked the requisite jurisdiction to determine the appellant’s claim against the 1st – 4th Respondents in the absence of a decision by the 5th Respondent as provided for by Section 284 (1)(a) of I. S. A. He urged this Court to resolve this issue in favour of the respondents

ISSUE B
Issue B deals with whether having held that the trial Tribunal had Jurisdiction to entertain the application against the 5th respondent alone under Section 284 (1)(d) I. S. A the lower Court was right in holding that the action against the 5th Respondents could not be sustained without joining the 1st – 4th Respondents.

The learned counsel for the 1st – 4th Respondents submitted that the Court predicated its reasoning as it relates to the 5th respondent on well trite and a fundamental principle of law, that in a declaratory action, all persons who have interest will be or who are likely to be affected, should be joined as parties to the action. He then

urged the Court to resolve this issue in favour of the appellant and dismiss the appeal.
The 5th respondent’s counsel also distilled two issues for determination of the appeal.

ISSUE No 1
This issue deals with whether the Court below was right in upholding the decision of the tribunal in declining Jurisdiction to hear the appellants originating application. He also stated that it is clear from the originating application of the appellant, cantered that the appellants application is on the 1st – 4th respondents as parties to the public offer and their failure to issue the appellant with share certificate. He therefore submitted that by the provisions of Section 284 (1)(a)(b) – (iv) of Investment and Securities Act, before the Tribunal would have Jurisdiction in respect of any matter provided thereunder, there must first have been a decision by the Securities Commission which is not the position of all here. He then urged the Court to resolve this issue in favour the respondents.

ISSUE II
Issue no II deals with whether having held that the tribunal has Jurisdiction to entertain the appellant’s application

against the 5th Respondent alone under Section 284 (1)(d) I. S. A, 2007, the Court of Appeal was right in holding that the action against 5th Respondent could be maintained.

The learned counsel for the 5th Respondent submitted further, that 1st – 4th respondents are not only primary parties but also necessary parties to the appellant’s action the absence of why the proceedings between the appellant and the 5th respondent could not fairly be dealt with on the issue of neme Judere in cause suo. He submitted that the issue did not arise from the Judgment of the Court of appeal and therefore it was misconceived. He then urged this Court to resolve the issue in favour of the Respondents and dismiss the appeal.

REPLY OF THE APPELLANT
The 1st point in the Reply Brief revolves under the Interpretation of Section 248 (1)(a) of the Investment and Securities Act.

On the issue of cause of action, he argued that the failure to issue the appellant his share certificate within the statory period, constitutes a cause of action against the 1st 4th and 5th Respondents. He submitted also that even if there is no reasonable cause of action disclosed

against the 5th Respondent, the law is now settled that a declaratory relief can be granted even where there is no cause of action. He cited the case of IKINE V EDJERODE (2001) 18 NWLR (pt 745) page 446 482.

The learned counsel then submitted that even if that it is true that no cause of action has been disclosed against the 5th respondent by the appellant, the relief of declaration can still be made against the 5th respondent. He urged the Court to allow the appeal

It is to be noted that 5th Respondent also filed Brief of argument on 22/5/2014 and also raised for determination therein, two issues which are similar to the ones raised in the Amended 1st to 4th Respondents Brief. It will amount to repetition to reproduce their here as the argument preferred on them.

It is pertinent for say at this juncture, that the learned counsel to the 1st to 4th respondents had, on 11/10/2010 filed a Notice of preliminary Objection pursuant to Order 2 Rule 9 (1) of Supreme Court Rules which he adopted at the hearing of this appeal. Suffice it to say, that the said Preliminary Objection was argued by him in his Amended

Brief of the 1st to 4th Respondents and the argument on same was covered by the two issues for determination of the appeal raised in the said amended brief of argument. The Preliminary Objection was principally predicated on three grounds as reproduced hereunder:-
1. That the grounds of appeal contained in the Notice appeal did not arise from and is not a challenge to the Judgment of the lower Court now appealed against.
2. That the party named as the 1st Respondent in the Notice of appeal is distinct from the 1st Respondent in the Judgment of the lower Court now appealed against.
3. That the appeal in which grounds 3 of the Notice thereof is predicated upon are of question of fact which was initiated without the leave of either the Court of Appeal or the Supreme Court contrary to the mandatory provisions of Section 233 (3) of the Constitution of the Federal Republic of Nigeria 1999.

It is settled law, that Preliminary objection where raised by a party, should firstly be determined before determining the substantive appeal if the need to do so arises. I shall in that regard, therefore first of all consider arguments on the Preliminary objection.

On the first two issues for determination in the 1st to 4th Respondents amended brief. I shall consider it with the Preliminary objection of the 5th Respondent simultaneously, since they are similar and were also argued in the two issues which are similar to the corresponding two issues as argued in the Amended Brief of argument of the 1st to 4th Respondents which also represent their responses to the issues raised the Amended Appellant’s brief of argument.

It is submitted by the learned counsel for the 1st to 4th Respondents, that the grounds of appeal in the Appellants Amended Notice of appeal did not constitute a challenge to the Judgment of the lower Court. He also argued that the Judgment of the Court below drew distinction between the Jurisdiction of Trial tribunal in relation to the clams against 1st to 4th Respondents and the question of the Jurisdiction of the trial tribunal in relation to the 5th Respondent and the ultimate question whether the action against the 5th Respondent could be sentimental before the tribunal.

To the learned counsel for the appellants, the issues are the same because the point revolves on whether the trial

tribunal was right on declining Jurisdiction and the subsequent endorsement of that funding by the lower Court. I think there is merit on that argument posed by the appellant. The crux of the matter, in my view, revolves on the issue of Jurisdiction as decided by the lower Court and the two sets issues on Jurisdiction are interwoven between the Jurisdiction of the tribunal and that of the lower Court which both were pronounced on by the Court below. To my mind therefore, it will not be correct to say that Ground No 1 which raised the issue of Jurisdiction, was not covered by the Judgment of the lower Court now being appealed against, since issue of Jurisdiction is very wide, especially when one considers the entire circumstances of this instant appeal. The point raised on the 1st ground is therefore not well taken and is rejected.

On the 2nd ground of appeal, the Objectionor argued that Ground No.2 was not borne out of the decision of the lower Court. It is perhaps apt to point out here, that the issue of jurisdiction must always be pronounced upon in a judgment before it can be raised on appeal. The matter or issue of jurisdiction can be raised at any time even before

an appellate Court even if it was not raised or determined at the trial, intermediate or appellate Court, provided the procedure of raising it was properly followed by the party choosing to raise it. It needs not always be an attack on the aspect covered explicitly in the judgment.
It can be freshly raised on appeal once the subject matter or the statute donating jurisdiction to the trial Court to adjudicate on the issues did not give the Court such jurisdictional power to so adjudicate on, or if any of the parties to the suit who is a necessary party was included or not included in the suit. That is why issue of jurisdiction is most of the time raised as a fresh issue in appeal with or even without leave of the appellate Court. In the result, the two preliminary objections lacks substance and are accordingly dismissed. I shall now proceed to consider the main appeal.

As I posited above, the two issues raised in the respondents brief of argument had caused Reply to these issues to be raised in the Appellant’s Amended Reply brief of argument.

I shall therefore be guided by the Amended 1st to 4th Respondent’s brief of argument which as I had earlier

stated, covers the brief of argument filed by the 5th Respondent which is similar virtually in all respects. Moreover, the two issues raised in the 1st to 4th Respondents Amended Brief of Argument relates to the question of jurisdiction and it is trite law that jurisdiction is the lifewire of any case and is a thresh-hold which is so fundamental that any decision reached by any Court of law no matter how superb, beautiful, or sound such case, it is a nullity once such trial Court or tribunal or appellate Court lacks jurisdiction to determine or adjudicate on the matter or appeal.

It is settled law, also that jurisdiction is often donated to the Court by statute.

It would seem to me that the case at hand, before the trial tribunal revolves on the provisions of Section 284(1) of the Investment and Securities Act 2007. The trial tribunal in its ruling delivered on 30th April 2008, after considering the above mentioned provisions held that it lacked jurisdiction to entertain the matter submitted before it for adjudication.
The tribunal further held that the appellant (i.e the applicant herein) by the provision of the Act should first of

all, have complained to the Commission before approaching it. It further held that although the applicants had joined the Commission as a respondent, it was doubtful if there was a real triable issue between the applicant and the Commission.
On appeal to the lower Court, the lower Court, inter alia, held that the lower tribunal lacked the power or vires to entertain the action against the 1st to 4th Respondents since the action against the 5th Respondent could not be sustained because no valid order could be made by the lower tribunal against it without joining the 1st to 4th Respondents. I find myself to be in entire agreement with the position of the lower Court as postulated above, because it is trite and well settled law too, that in any declaratory relief sought by a party, it is incumbent upon that party to join all persons/parties whose interest is at stake or who will be directly affected or likely to be affected in the action. It is only if that has been done, that the Court being approached to make such declaratory order, would have the power to entertain and determine the action and could comfortably grant or refuse such order to the parties

affected or concerned. I am convinced and I am also at one with the finding of the lower Court, when it held that the tribunal lacked the requisite jurisdiction to determine the appellant’s claim before it against the 1st to 4th Respondents since there was no decision or determination by the Commission i.e the 5th Respondent. Hence, the trial tribunal is devoid of jurisdiction or competence to entertain or determine the appellant’s/applicant’s) claim against the 1st to 4th Respondents, in view of the fact that the 5th Respondent did not pass any decision being challenged before it, as contemplated by the provisions of Section 284(1)(a)(i-iv) of the Investment and Securities Act 2007. The two issues encapsulated in the 1st to 4th Respondent’s brief, which also covered all the issues raised in the 5th Respondent’s Brief of argument, are hereby resolved in favour of all the respondents and against the appellant herein.

In the result, in the light of all that I have posited above, I adjudge this appeal as unmeritorious. It fails and is accordingly dismissed by me. As a corollary, I affirm the judgment of the lower Court. I make no order as to costs, so parties should bear their respective costs.

OLABODE RHODES-VIVOUR, J.S.C.: I have had the advantage of reading in draft the leading judgment of my learned brother, Sanusi JSC.

For the reasons given by his lordship I agree that the judgment of the Court of Appeal is correct. It is accordingly affirmed. Appeal fails and it is hereby dismissed.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Amiru Sanusi JSC and to underscore the support in the reasonings from which the decision emanated I shall make some remarks.

This is an appeal filed by the appellant against the judgment of the Court of Appeal sitting in Lagos or Court below or lower Court (Coram: Paul Adamu Galinje JCA (As he then was), Ibrahim Mohammed Musa Saulawa and Regina Obiageli Nwodo JJCA, delivered on the 11th day of May, 2010 which affirmed the decision of the Investments and Securities Tribunal delivered on the 30th day of September, 2008 in Lagos. The Court below in its judgment dismissed the appeal and struck out the application of the

applicant now appellant for want of jurisdiction.

The full detailed facts are well set out in the leading judgment and I shall not repeat them except when the occasion warrants a reference to any part thereof.

On the 24th of April, 2018 date of hearing, C.V.C. Ihekweazu Esq, learned counsel for the appellant adopted the brief of argument filed on 30th October, 2013 in which were crafted two issues for determination, viz:
(i) Whether the Court below gave a proper interpretation of Section 284 (1) (a) and (3) of the Investments and Securities Act, 2007 by holding that the Investment claim before the tribunal since the appellant’s claim does not arise from the decision of the 5th respondent even when the 5th respondent is a principal party in the appellant’s claim.
(ii) Whether on a proper interpretation of the provision of Section 284 (1) (a) and (3) of the Investments and Securities Act, 2007, the Court below was right in holding that Investments and Securities Tribunal was right in declining jurisdiction to entertain the appellant’s claim against the 5th respondent since, on its decision, the Tribunal has no jurisdiction to determine the claim against the 1st to 4th respondents before the tribunal.

Learned counsel for the appellant also adopted the Reply Brief to 1st – 4th respondents brief and the Reply to the 5th respondent’s brief all flied on 8th February, 2018.

For the 1st – 4th respondents, learned counsel, Mathew Echezonam Esonanjor adopted their Amended brief of argument filed on 2nd December, 2013 and in it raised and argued a Preliminary Objection and in the event of a failure of the objection raised two issues for determination which are thus:-
(i) Whether the Court below was right in dismissing the appellant’s appeal on the ground that under Section 284 (1) (a) of the Investments and Securities Act 2007, the trial Tribunal lacked the jurisdiction to entertain the appellant’s claim against the 1st-4th respondents.
(ii) Whether having held that the trial Court/Tribunal had jurisdiction to entertain the application against the 5th respondent alone under Section 284 (1) (d) of the Investments and Securities Act 2007, the lower Court was right in holding that the action against the 5th respondent cannot be sustained and that no valid

Order can be made by the Trial Tribunal without joining the 1st- 4th respondents.

Abiola Adegoke Esq, learned counsel for the 5th respondent adopted the amended brief of argument filed on the 22nd May, 2014 and deemed filed on 24th April, 2018. He identified two issues for determination which are:-
(i) Whether the Court of Appeal was right in upholding the decision of the Investments and Securities Tribunal in declining jurisdiction to hear the appellant’s originating application having regard to the provisions of Section 284 (1) (a) of the Investments and Securities Act 2007.
(ii) Whether having held that the Trial Tribunal has jurisdiction to entertain the appellant’s originating application against the 5th respondents alone under Section 284 (1) (d) of the Investments and Securities Act 2007, the Court of Appeal was right in holding that the action against the 5th respondent cannot be maintained in that no valid order can be made by the Trial Tribunal against the 5th respondent without joining the 1st to 4th respondents whose interests would be affected and over whom the Trial Tribunal does not have jurisdiction.

It is stating the obvious to say that the Preliminary Objection would be first tackled before anything else in this appeal as the competence of the appeal depends on the Objection.

PRELIMINARY OBJECTION
The Objectors, 1st – 4th respondents grouse on the appeal is that the grounds of appeal contained in the Amended Notice of Appeal did not arise from and not a challenge to the judgment of the lower Court appealed against.

That the judgment of the Court below relates to the jurisdictional competence to hear and determine the appellant’s claim against the 1st -4th respondents was based on the interpretation of Section 284 (1) (a) of the Investments and Securities Act 2007 while its consideration of the claim of the appellant against the 5th respondent in relation to the jurisdiction of the Trial Tribunal was premised on Section 284 (1) (d) of the Investment and Securities Act 2007.

Learned counsel for the Objectors submitted that contrary to ground one of the appellant’s ground of appeal, it was never the decision of the Court below that under Section 284 (1) (a) of the Investments and Securities Act, 2007, the Tribunal did not have jurisdiction to possibly entertain the

claim of the appellant since the appellant’s claim must be based on a decision or determination of the 5th respondent before a dissatisfied party can apply to it thereafter. He stated that ground one does not represent a complaint against the judgment of the lower Court.

Also that ground 2 of the grounds of appeal is not borne out of the decision or reasoning of the lower Court.

That the situation being as it is, the appeal lacked validity and should be struck out. He cited Abubakar v. Joseph (2008) 13 NWLR (Pt.1104) 307; FBN Plc v. Abraham (2008) 18 NWLR (Pt.1118) 172, C.C.B. Plc v. Ekperi (2007) 3 NWLR (Pt.1022) 493 at 508; Oloruntoba – Oju v. Abdul – Raheem (2009) 13 NWLR (Pt.1117) 83 at 121.

Learned counsel for the appellant in response contended that the objection should be discountenanced being not founded on any substance as what is central in the appeal is the issue of jurisdiction of the Investment and Securities Tribunal, the Trial Tribunal to determine the claims of the appellant and these were well provided in the judgments of the two lower Courts and set out in the grounds of appeal.

He cited Shelim & Anor v. Gobang (2009) 5-6 SC (Pt.11) 174 at 186; Ejiofodomi v. Okonkwo (1982) NSCC Vol. 13 page 422; Gaji v. Paye (2003) 8 NWLR (Pt.823) 583 at 599-600

To assist in the determination of the objection I shall set down the salient parts of the Notice and Grounds of Appeal thus:-
AMENDED NOTICE OF APPEAL
TAKE NOTICE that the appellant being dissatisfied with the decision of the Court of Appeal, Lagos Division contained in the judgment delivered on the 11th day of May, 2010 doth hereby appeal to the Supreme Court upon the grounds set out in paragraphs 3 and will at the hearing of the appeal seek the relief set out in paragraph 4.
And the appellant states further that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.
2. PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF:
That part of the decision of the lower Court to the effect that the Investment and Securities Tribunal lacked jurisdiction to entertain the appellant’s case before it under the circumstance since the appellant is required to complain to the Securities and Exchange Commission first,

at the end of which he can then challenge the decision of the Commission if given against him and further the part of the decision that the Investment and Securities Tribunal, although, retaining the jurisdiction to entertain the Application of the Appellant against the 5th respondent, could not possibly sustain an action against the 5th respondent under the circumstance since it lacked jurisdiction, as a Tribunal of first instance, to determine the claim against the 1st to 4th respondents.
3. GROUNDS OF APPEAL
1. The lower Court erred in law when it held that under Section 284 (1) (a) of the Investment and Securities Act 2007, the Tribunal did not have jurisdiction to possibly entertain the claim of the appellant since the appellant’s claim must be based on a decision or determination of the 5th respondent before a dissatisfied party can apply
PARTICULARS
a. The claim of the appellant at the Trial Tribunal does not fall exclusively under Section 284 (1) (a) of the Investment and Securities Act 2007 as same can be accommodated under Section 284 (1) (a) – (d) and Sub-section (3) of the Act under a proper statutory interpretation that will remove

the attendant ambiguities inherent in the provisions.
b. On a proper construction of the provision of Section 284 of the Investment and Securities Act 2007 particularly under Sub-section 1 (a),(d) and Subsection (3) thereof, the Act empowers the Trial Tribunal to exercise original jurisdiction over all the respondents notwithstanding lack of the 5th respondent’s decision or determination of any dispute between the persons mentioned in Section 284 (1) (a) (i)-(iv) of the Investment and Securities Act 2007.
c. Any complaint and/or petition to the 5th respondent in respect of the claim of the appellant may not pass the acid test of fair hearing as justice will not be seen to have been manifestly done thereto and as it is fundamental under our jurisprudence that a person cannot be made a judge in his own cause as such interpretation will lead to grave ambiguity which will occasion miscarriage of justice.
2. That lower Court erred in law when it held that the Investment and Securities Tribunal was right in declining jurisdiction to entertain the appellant’s case against the 5th respondent, it having no jurisdiction to determine the

claim against 1st to 4th considering the fact that the claim was for declaratory reliefs where all persons whose interests will be, or are likely to be affected should be joined as parties to the action.
PARTICULARS
a. The reliefs sought by the appellant at the Investment and Securities Tribunal affect the 5th respondent which made it practically impossible at first complain to the 5th respondent in view of the need to guarantee and uphold the principle of nemo judex en causa sua- no man can be a judge in his own cause.
b. The claim against the 5th respondent was in the nature of mandatory injunction requiring the 5th respondent to perform a duty under the law.
c. The cases of London Passengers Transport Board V Moscrop (1942) Ac 332; Gregory v. Camden Lbo (1996) 1 NMLR 899 And Ipadeola v. Oshowole (1987) 3 NWLR 18 do not apply to the peculiar circumstances of the case of the appellant and were therefore wrongly applied.

It is not the law that when a Court or tribunal finds that it does not have jurisdiction over some of the parties in an action, it will decline jurisdiction to hear and determine the

entire claim as it may affect some other parties thereto.
3. The decision is against the weight of evidence.”

The grouse of the 1st – 4th respondents on which the Preliminary objection is based is that the appellants Amended Notice of Appeal does not represent a complaint against the judgment of the Court below. Also the objectors contend that the judgment of the Court below drew a distinction between the jurisdiction of the Trial Tribunal relative to the claim against the 1st to 4th respondents and the question of the jurisdiction of the Trial Tribunal in relation to the 5th respondent and the ultimate question of whether the action against the 5th respondent could be sustained before the Trial Tribunal.

I agree with the stance of the appellant that the position of the objectors is a stance taking technicality to a ridiculous stage shackling the hands of Court to the consideration and determination of the substance of the appeal to the detriment of justice. Again to be said is an attempt to lure the Court into a severance module of the claim as relating to the 5th respondent outside the concerns of the 1st to 4th respondents.

Indeed what is at play or central to the complaint of the appellant against the decision of the Court below is the issue of jurisdiction of the Investment and Securities Tribunal which was the trial Tribunal to determine the claims of the appellant as constituted. Ground one has to do with the Court below affirming the decision of that Trial Tribunal.

This issue of jurisdiction of the trial tribunal being the fulcrum of ground one of the appellant, a situation different from the merits of the case before the trial Court or the Appeal Court’s decision. It is stating what has become trite that jurisdiction occupying a fundamental crucial position can be raised at any stage of the proceedings including the appellate level up to the Supreme Court. This important position of a jurisdictional issue gives it that important status for which it can be raised in any form by any of the parties and even suo motu by the Court. Also it can be brought up with, filed and argued with or without leave of Court since there is no given formula on which it could be ignited as an issue. See Shelim & Anor v. Gobang (2009) 5 – 6 SC (pt.ii) 174 at 186; Ejiofodomi v. Okonkwo (1982) NSCC Vol. 13 page

422; Gaji v. Paye (2003) 8 NWLR (Pt.823) 583 at 599 – 600.

I would posit most humbly that ground one challenges the jurisdiction of the trial Tribunal and can be ventilated and not shut out even if it is for the first time being raised. Again to be said is that both grounds 1 and 2 are borne out of the decision or reasonings of the lower Court and the appeal is competent.
Clearly there is no basis for this Objection which lacking in merit is hereby dismissed.

MAIN APPEAL
I shall make use of the issues as crafted by the appellant for ease of reference.
ISSUE NO. 1
Whether the Court below gave a proper interpretation of Section 284 (1) (a) and (3) of the Investments and Securities Act 2007 by holding that the Investment and Securities Tribunal does not have jurisdiction to entertain the appellant’s claim before the Tribunal since the appellant’s claim does not arise from the decision of the 5th respondent even when the 5th respondent is a principal party in the appellant’s claim.

Learned counsel for the appellant submitted that this issue is distilled from ground one of the Amended Notice of

Appeal and that the rules of natural justice embedded in the concept of fair hearing as stated and provided for in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (CFRN for short). He cited Section 1 (3) CFRN; B. M. Ltd v. Woermann – Line (2009) 13 NWLR (Pt.1157) 149 at 183; Orugbo v. Una (2002) 9-10 SC 61 at 93,94; Section 284 (1) (a) (iii) of the Investments and Securities Act, 2007; Ibrahim v Mohammed (2003) 2 SC 127 at 138 etc.

For the 1st-4th respondents, learned counsel submitted that the question of the Trial Tribunal is statutory and aptly provided for by Section 284 (1) (a-f) (2) (3) of the Investments and Securities Act 2007 and the Tribunal is correct in its decision which was upheld by the Court below. He cited Owena Bank Nig Plc v. Nigerian Stock Exchange Limited (1997) 8 NWLR (Pt.515) 1; Amasike v. Reg. Gen. C.A.C (2010) 13 NWLR (Pt.1211) 337; National Bank of Nig. Ltd v Weide & Co Nig. Ltd (1996) 8 NWLR (Pt.465) 150.

Learned counsel for the 5th respondent submitted that it is a cardinal principle of interpretation that words in a statute are to be given their ordinary and natural meaning.

That where the words in a statue are direct and straight forward and unambiguous, the construction of those words must be based on the ordinary plain meaning of the words. He cited African News papers of Nigeria Limited & 2 Ors v. The Federal Republic of Nigeria (1985) 2 NWLR (Pt.6) 137 at 156.

In a nutshell, what is being asked of this Court here and now is whether the decision of the Investments and Securities Tribunal in declining jurisdiction to hear the appellant’s originating application and which decision was affirmed by the Court of Appeal was correct regard being had to the provisions of Section 284 (1) (a) of the Investment and Securities Act 2007.
The provisions of the said section are set out hereunder, as follows:-
“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 clients;

(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.”
That learned counsel for the appellant contends, that section is a negation of the provision of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999.
Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended provides that:
“In the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing by law and constituted in such manner as to secure its independence and impartiality.”
What is called for at this point is the interpretation of the provisions of Section 284(1)(a)(i)-(iv) of the Investments and Securities Act 2007 in relation to the jurisdiction of the trial Tribunal. The provisions of Section 284 are clear and unambiguous and so have to be interpreted within the ordinary and natural meaning. I rely on African Newspapers of Nigeria Limited & 2 Ors v. The

Federal Republic of Nigeria (1985) 2 NWLR (Pt.6) 137 at 156; Owena Bank Nig Plc v. Nigeria Stock Exchange Limited (1997) 8 NWLR (Pt.515) page 1; Amasike v. Reg. Gen. C.A.C. (2010) 13 NWLR (Pt.1211) 337; National Bank of Nigeria Ltd v. Weide & Co Nig Ltd (1996) 8 NWLR (Pt.465) 150.

The principles of interpretation of statues being well settled, it has to be said that the jurisdiction of a Court or Tribunal is not inferred or imagined but statutory. This follows the fact that Courts are set up under the Constitution, Decrees, Act, Laws and Edicts and these are the instruments that cloak the Courts with the powers and jurisdiction of adjudication. Therefore where the statues have not donated jurisdiction to a Court or Tribunal, the Court cannot operate as jurisdiction is not endowed by consent of parties being that jurisdiction is confined, limited and circumscribed by the statute creating it. See Oloruntoba – Oju v. Abdul- Raheem (2009) 13 NWLR (Pt.117) 83 at 125.
Getting back on track to the matter at hand, the claims against the 1st- 4th respondents resolve around infractions or breaches of the provisions of the

Investments and Securities Act while the claim against the 5th respondent is for an order of Court compelling the 5th respondent to sanction the respondents, 1st – 4th for breach of the Investment and Securities Act and the Securities Exchange Commission Rules and the Act. The clear interpretation or purport of what is on ground is that without a decision by the 5th respondent (the Commission) the trial Tribunal would have no jurisdiction to entertain the originating application filed by the appellant against the 1st – 4th respondents. Another way of saying what I am trying to impart is that the condition precedent to the activation of the jurisdiction of the trial Tribunal is that a decision or determination of the matter would have been done by the 5th respondent, the Securities and Exchange Commission firstly. The conclusion therefore is that the Court below was right to hold that the trial Tribunal lacked jurisdiction to entertain the appellant’s claim against the 1st – 4th respondents.
This issue one is resolved against the appellant.

ISSUE NO 2
Whether on a proper interpretation of the provision of Section 284 (1) (a) and (3) of the Investment and

Securities Act, 2007, the Court below was right in holding that the Investments and Securities Tribunal was right in declining jurisdiction to entertain the appellant’s claim against the 5th respondent since on its decision, the Tribunal has no jurisdiction to entertain the claim against the 1st – 4th respondents before the Tribunal.

Learned counsel for the appellant submitted that the Court below misconstrued the provisions of Section 284 (1) (a) and (3) of the Investments and Securities Act 2007 and arrived at a wrong conclusion which has occasioned a miscarriage of justice to the appellant. That the Securities and Exchange Commission lacks the jurisdiction to determine questions of law or disputes involving regulatory governance of operations in the Capital or Securities Market when the Commission itself is the regulatory body saddled with the responsibilities of regulating market operations in the Securities Market. He referred to Ansaldo (Nig) Ltd v. N.P.F.M.G.T. Board (1991) 3 SC 29 at 38; Tukur v. Government of Gongola State (1989) 9 SC 1 at 34; Bronik Motors Ltd v. Wema Bank (1983) 1 SCNLR 296; A.G. Bendel State v. Aideyan (1989) 9 SC 127 at 138; Section 6 (6) 1999 CFRN.

Learned counsel for the 1st – 4th respondents contended that the Court below was right in holding that the action against the 5th respondent cannot be sustained despite the fact that the trial Tribunal has jurisdiction over the 5th respondent alone pursuant to Section 284 (1) (d) of the Investments and Securities Act 2007 as none of the declaratory reliefs could in the circumstance be granted in view of the fact that the Tribunal lacked the vires against the 1st – 4th respondents and a Court of law does not make an order in vain. He cited Badejo v. Federal Ministry of Education (1996) 8 NWLR (pt.464) 15 at 50.

For the 5th respondent it was contended that the 1st – 4th respondents are not only the primary parties but necessary parties to the appellants action in the absence of who the proceedings between the appellant and the 5th respondent could not be fairly dealt with. He referred to Green v. Green (1987)2 NSCC 115 at 1123.

That the prayer or relief sought by the appellant against the 5th respondent is not a cause of action. He cited Fred Egbe v. Adefarasin & Anor (1985) 1 NWLR (Pt.3) 549 at

568; Black’s Law Dictionary 7th Edition page 214.

In my humble view, the resolution of issue one to the effect that the trial Tribunal lacked the jurisdiction to entertain the claims of the 1st – 4th respondents in the absence of a determination by the 5th respondent taking place first, it is would be a wasteful exercise to delve into this second issue which clearly has become academic.
From the foregoing and well reasoned lead judgment, I too find no merit in this appeal which I dismiss.
I abide by the consequential orders made.

JOHN INYANG OKORO, J.S.C.: I read in advance the judgment of my learned brother, Amiru Sanusi, JSC just delivered. I agree that there is no merit in this appeal and it merits an order of dismissal.
Appeal is dismissed. I make no order as to costs.

SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Amiru Sanusi, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. The appeal lacks merit, and it is accordingly dismissed by me. I abide by all the orders contained in the lead Judgment.

Appearances: