FCMB LTD v. VALUELINE INVESTMENTS AND SECURITIES LTD & ORS (2020)

FCMB LTD v. VALUELINE INVESTMENTS AND SECURITIES LTD & ORS

(2020)LCN/14307(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, June 05, 2020

CA/A/617/2018

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

FIRST CITY MONUMENT BANK LIMITED APPELANT(S)

And

VALUELINE INVESTMENTS AND SECURITIES LTD 2. SECURITIES & EXCHANGE COMMISSION 3. THE CENTRAL BANK OF NIGERIA RESPONDENT(S)

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

Jurisdiction is indeed the life wire of any adjudication, without it, nothing can stand, see IKPEKPE V WARRI REFINING & PETROCHEMICAL CO. LTD & ANOR (2018) LPELR-44471(SC) which held thus:
“The importance of the jurisdiction of a Court cannot be over emphasized. The law is trite that jurisdiction is a threshold issue and livewire that determines the authority of a Court of law or Tribunal to entertain a case before it and it is only when a Court is imbued or conferred with the necessary jurisdiction by the Constitution or law that it will have the judicial power and authority to entertain, hear and adjudicate upon any cause or matter brought before it by the parties. Where a Court proceeds to hear and determine a matter without the requisite jurisdiction, it amounts to an exercise in futility and the proceedings and judgment generated there from are null, void and of no effect no matter how well conducted. See Nigeria Deposit Insurance Corporation v Central Bank of Nigeria & Anor (2002) 7 NWLR (pt. 766) 273, Shelim & Anor v Gobang (2009) 12 NWLR (pt. 1156) 435, Utih v Onoyivwe (1991) 1 NWLR (pt. 166) 205, Petrojessica Enterprises Ltd & Anor v Leventis Technical Co. Ltd (1992) 5 NWLR (pt 244) 675.” Per OKORO, J.S.C. Jurisdiction is bestowed by the constitution or statute. PER NIMPAR, J.C.A.

THE NATURE OF A STATUTE OF LIMITATION

The nature of a statute of limitation has been held to be procedural setting out clearly time frame within which an action must be brought. The essence or emphasizing that a person should not sleep on his right. See CHIGBU V. TONIMAS (2006) 26 NSCR 18 which held thus:
“The Limitation Law is certainly procedural, setting out clearly time frame within which an action must be brought. Unlike substantive law, it is retroactive in nature and such statutes on this all-important subject must be read as a whole. As such whether specifically stated or not in such a statute, it must be read retroactively. A person should not sleep on his rights.”PER NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the decision of the Investment and Securities Tribunal (hereinafter referred to as the Tribunal) sitting in Abuja and delivered on the 9th May, 2018 wherein the tribunal upheld the claims of the 1st Respondent (claimant) against the Appellant. Dissatisfied with the decision, the Appellant filed an initial Notice of Appeal on the 28th day of June, 2018 setting out 3 Grounds of Appeal and a second Notice of Appeal on the 14th August, 2018 setting out 12 Grounds of Appeal. The first Notice of Appeal filed on the 28th June, 2018 was withdrawn at the hearing of the Appeal.

Facts leading to this Appeal are amenable to brief summary. The 1st Respondent took out originating process before the Tribunal against the Appellant, 2nd, and 3rd Respondents claiming a total number of reliefs thus:
Principally, the claim borders on the recovery of the sum of N2.5 billion deposited for the purchase of Fin Bank shares in 2008 public offer which were neither allotted nor was the money refunded. Part of the claim is for interest accrued. A petition was initially sent to the 2nd

Respondent, who after investigations found the Fin Bank Plc liable and ordered it to refund the said sum with 18% interest rate from 23rd September, 2008. Fin Bank Plc did not comply with the instructions. As a result of the aforesaid refusal, the 2nd Respondent refused to approve the merger between the Appellant and Fin Bank Plc. The refusal to refund was premised on the type of interest rate to apply and the period. The principal sum was later paid on the instructions of the 2nd and 3rd Respondents into an escrow account pending when the complaint by the Appellant would be resolved. Later it was paid to the registrar of the Federal High Court for payment to AMCON being debt owed the corporation. By this time the merger had taken place even though it was delayed because of the withheld money. The Appellant gave an undertaking to pay before the 3rd Respondent approved the merger. The issue of interest rate to apply protracted and disagreement set in consequently leading to the claim before the tribunal. The 1st Respondent called a sole witness and tendered several exhibits. The Appellant called a sole witness too while the 2nd and 3rd Respondent did not call

any witness. Parties filed Written Addresses which were adopted and after due consideration the Tribunal entered judgment in favour of the 1st Respondent. Dissatisfied with the decision, the Appellant filed this Appeal.

The Appellant’s brief settled by OGUNMUYIWA BALOGUN ESQ., dated on the 13th day of August 2018, filed on the 13/8/2018 and it formulated 3 issues namely:
i. Whether the lower tribunal had jurisdiction over the claims of the 1st Respondent, particularly, as against the Appellant (distilled from Grounds 2,3,4,5 & 6).
ii. Whether the lower tribunal was right when it discountenanced the issue of statute of limitation raised by the Appellant on the ground that it was not raised in pleadings, but only in the Appellant’s final address (distilled from Ground 1).
iii. Whether the lower Tribunal was right when it held that the basis for computation of interest on the principal sum is compound interest and that interest accrued on the said principal sum of the N2.5 billion from 23/09/08 to 05/06/2013. And from 05/06/2013 to 21/08/2013 and that interest continue to accrue on the said sum until fully liquidated

(distilled from Grounds 8, 9, 10, 11 & 12).

The 1st Respondent’s Brief settled by MAUREEN N. ONYIUKE ESQ., dated 4th December, 2018, filed on the 6/12/2018 and it distilled 3 issues for determination thus:
a. Whether the lower Tribunal was right in assuming jurisdiction to entertain the suit leading to the present appeal.
b. Whether the lower Tribunal’s finding on the issue of statute of Limitation was right and whether same would have occasioned a miscarriage of justice if it is found to be wrong.
c. Whether the lower Tribunal rightly held that the Appellant is bound in fact and in law to fully comply with the 2nd Respondent’s extant directive by paying the 1st Respondent the sum N2.5 Billion Naira and interest thereon calculated on a compound interest basis from the 23rd of September, 2008 until same is fully liquidated.

The 2nd Respondent’s Brief settled by OGECHI OGBONNA ESQ., dated 12/12/2018, it adopted the issues donated by the Appellant.

The 3rd Respondent’s Brief settled by LEKAN OGUNLEYE ESQ., is dated 27th January, 2020 and filed on the same day but deemed on the 11/3/2020, it submitted

3 issues for determination as follows:
i. Whether the Tribunal was right in assuming jurisdiction to entertain the suit, considering the claims of the 1st Respondent, particularly against the Appellant. (distilled from Grounds 2,3,4,5 and 6).
ii. Whether the Tribunal was right when it discountenanced the issue of statute of limitation raised by the Appellant on the grounds that it was not raised in pleadings but only in the Appellant’s final written address (distilled from Ground 1).
iii. Whether the Tribunal was right when it held that the basis for computation of interest of N2.5Billion is compound interest and that the interest accrued on the said principal sum of N2.5 million(sic) from 23rd September, 2008 to 5th June, 2013, and from 5th June 2013 to 21st August 2013 and that interest continue to accrue on the said sum until fully liquidated (Ground 8,9, 10, 11 and 12).

The Appellant filed Reply briefs to the 3 Respondent briefs of the 1st, 2nd and 3rd Respondents on the 26/11/2019, 20/2/2020 and 20/2/2020 respectively. The 2nd Respondent also filed a list of additional authorities on the 3rd February, 2020. The Brief were all

adopted at the hearing of the Appeal. I have considered the Notice of Appeal, the Record of Appeal and the Briefs of the respective learned counsel for the parties and I am inclined to adopt the issues donated by the Appellant, the initiator of the Appeal, doing that would enable the Court determine all areas of complaint against the judgment in this Appeal.

ISSUE ONE
The Appellant submitted that in legal jurisprudence, jurisdiction occupies a very special position, referred to ADEJUMO V. AGUMAGU (2015) 12 NWLR (PT.1475) 1. That Part XVI of the Investments and Securities Act (ISA) established the Investment and Securities Tribunal and delimits its jurisdiction. The jurisdiction of the lower tribunal is specifically prescribed in SECTION 284 AND 289(1) of the ISA. The sections of ISA confers only limited jurisdiction – delimiting jurisdiction by reference to specified parties and certain specified subject matter.

The Appellant contends that the lower Tribunal lacked the requisite jurisdiction to adjudicate over claims of the 1st Respondent as framed in the originating application, particularly as against the Appellant. The Appellant states

that Section 289 (1) of ISA vests jurisdiction in the lower tribunal only and in respect of actions or decisions of the Securities and Exchange Commission (the 2nd Respondent) by persons aggrieved by such decisions or actions. The Appellant argued that the jurisdiction vested in the lower tribunal by virtue of the section above extends only to claims against SEC and does not extend to claims against parties other than SEC. SECTION 284 of the ISA vest jurisdiction under three broad regimes. The first, under SECTION 284 (1) (a) (i)-(iv), vests jurisdiction in the lower tribunal on any question of law or dispute involving a decision or determination of the 2nd Respondent in the operation and application of the ISA and in particular relating to any dispute between disputants which are specifically enumerated. Secondly, under Section 284(1) (b) – (e) vests jurisdiction in the lower tribunal on any question of law or dispute between stated disputants. Thirdly, under SECTION 284 (1) (F), it vests jurisdiction in the lower tribunal on any question of law or dispute arising from administration, management and operation of collective investment schemes.

The Appellant states that to determine whether the lower tribunal has jurisdiction to entertain the suit of the 1st Respondent before the lower tribunal, the claims of the 1st Respondent before the lower tribunal must be scrutinized to see whether they fall within the ambit of the regimes of one more of SECTION 284(1) (A) – (I) – (IV), OR 284 (1) (B) – (E) or 289(1) of the ISA. The Appellant further states that from the claims of the 1st Respondent before the lower tribunal that the claim does not arise from a dispute relating to the administration, management and operation of a collective investment scheme and thus, that the regime of SECTION 284(1)(F) of the ISA has no application and does not vest jurisdiction in the lower tribunal over claims of the 1st Respondent.

The Appellant further argued to vest jurisdiction in the lower tribunal under the regime of SECTION 289(1) of the ISA, the claim must be against an action or decision of 2nd Respondent and must be against SEC. The Appellant further submitted that as it relates to the regime under SECTION 284(1) (A)(I)-(IV) of ISA, the claim must arise from a “decision or determination” of the

2nd Respondent and in particular must relate to dispute between the class of entities listed in Subparagraph (I)-(Iv). The Appellant relies on the expressio unus est exclusio alterius principle of statutory interpretation. This principle was explained in BUHARI V. YUSUF (2003) 14 NWLR (pt. 841) 446 at 499.

The Appellant submited that consistent use of the word “particular” in SECTION 284(1)(A) of ISA, only disputes between the specified classes of entities in relation to decision or determination of the 2nd Respondent are contemplated. The Appellant further submitted that the dispute submitted by the 1st Respondent to the lower tribunal is not one between capital market operators, or between capital market operators and their clients, or between an investor and securities exchange, or between capital market operators and self-regulatory organization and its not one over which jurisdiction is vested in the lower tribunal.

The Appellant submitted that the jurisdiction of the lower tribunal is not co-extensive with the statutory and regulatory powers of the 2nd Respondent and SECTIONS 13(R) AND (Y) of the ISA do not operate to extend the

limited jurisdiction of the lower tribunal. The Appellants other leg of argument on jurisdiction is the subject matter jurisdiction. The Appellant states that the 1st Respondent’s claim at the lower tribunal would show that they are in the nature of debt recovery and that nothing in SECTIONS 284 and 289 or any other sections of ISA empowers the lower tribunal to exercise jurisdiction over claims for debt recovery and thus the lower tribunal has no jurisdiction to adjudicate the claims of the 1st Respondent. The basis of the claim of the 1st Respondent against the Appellant is the letter dated 1/2/1023 which conveyed the outcome of the joint investigation undertaken by the 2nd and 3rd Respondents (EXHIBIT B6). The Appellant submitted that what is contained in EXHIBIT B6 in which the 1st Respondents claims is rooted is clearly stated on the face of EXHIBIT B6 as a joint recommendation of the joint investigators of the 2nd and 3rd Respondent, and not a decision or determination of SEC (2ND Respondent), but a joint recommendation of joint investigators of the 2nd and 3rd Respondents.

Finally, the Appellant urges the Court to set aside the proceedings

and judgment of the lower tribunal for being a nullity as same were conducted and arrived at without jurisdiction.

ISSUE 2
From the final Written Address before the lower tribunal which was duly served on all the parties, the Appellant raised the issue of statute of limitation relying on SECTION 2(2)(A) of the Public Officers Protection Act (POPA) to urge that the 1st Respondent’s claim was caught by POPA. Referred to PAGES 374-376 of the Record of Appeal. The 2nd and 3rd Respondents elected not to file final written address and thus did not respond to the issues of limitation of statute. Submitted that the lower tribunal relying on the decisions in NNACHETAM & ORS V. A.G. ENUGU STATE & ANOR. (2017) LPELR-42776, EMMANUEL MEKAOWULU V. UKWA WEST LOCAL GOVERNMENT COUNCIL (2018) LPELR-43807 AND NIGERIAN INSTITUTE OF INTERNATIONAL AFFAIRS V. MRS. T.O. AYANFALU (2006) LPELR-5960 and came to the conclusion that;
“This defence was neither raised by the 3rd defendant nor any of the other defendants in the suit in their respective reply to the originating application, the argument of the 3rd defendant in its final written address

support of the issue, is hereby totally discountenanced.”

The Appellant submitted that the decision relied upon no longer represent the position of the law on the point as the Supreme Court has since moved away from the position in those decisions. The Appellant commends to the Court the decision in SULE V. BANDI & ANOR. (2018) LPELR-43870(CA) and also NASIR V. C.S.C KANO STATE (2010) 5 NWLR (pt. 1190) 253, at 266.

The Appellant finally submitted that its objection to the suit of the 1st Respondent on the ground that same is statute barred by reason of the POPA was validly raised, and ought not to have been discountenanced by the lower tribunal, and that by discountenancing same suo motu on the ground that it was not specifically pleaded in the Appellants reply but only raised in the Appellants final Written Address, without hearing the parties on the point of the matter in which it was raised. The Appellant states that the lower tribunal deprived them of a complete defence available to it as a matter of law and thereby occasioned miscarriage of justice to the appellant.

ISSUE 3
The Appellant states that from the evidence led at

the tribunal, the fact that there was a joint investigation by the 2nd and 3rd Respondents which recommended the refund of the sum of N2, 500,000,000 with interest at the rate of 18% per annum from 23/9/2008 till fully liquidated, EXHIBIT B6 conveyed the joint investigators recommendation and the decision that the refund money and accrued interest should be paid into an escrow account with the 3rd Respondent pending the resolution of an intervening claim by a third party (the asset management corporation of Nigeria – “AMCON”) against the 1st Respondent in respect of sums owed by the 1st Respondent to AMCOM. And the sums of N2,500,000,000 being the principal sum and N2,133,829,145 being interest on the principal sum were paid to AMCON from the escrow account for the benefit of the 1st Respondent.

It is the contention of the Appellant that as it was before the lower tribunal, that from the date of EXHIBIT B6, when the decision to escrow the said sums was communicated to the 1st Respondent, and given the undertaking by the Appellant via EXHIBIT B7 by which the Appellant had undertaking that the deposited sum and accrued interest be debited

from its account with the 3rd Respondent should the joint investigation go against it. The Appellant submitted that the sums in the escrow account were held in trust for the benefit of the 1st Respondent to abide the third party claim by AMCON against the 1st Respondent.

The Appellant submitted that the tribunal applied compound interest as basis for computation of accrued interest on the return money without any legal basis or justification, thus occasioning a miscarriage of justice to the appellant. That EXHIBIT B6 which conveyed the recommendation on interest is clear and unequivocal as to applicable interest. It recommends in clear terms interest at 18% in line with SEC Rule 64(4). Section 96 of the ISA empowers the 2nd Respondent to prescribe the rate of interest applicable to return monies. The Appellant submitted that the power has been exercised by 2nd Respondent and at the relevant time as embodied in SEC RULE 64(4) & (7) OF (SEC RULES 2010).

Furthermore, that EXHIBIT B10 does not contravene any law and indeed the decision therein was reached by 2nd and 3rd Respondent following representation by the appellant on the interest computation

by the Appellant on the interest computation basis via EXHIBIT F. The 1st Respondent had an opportunity at this point to request for details of the representation of the Appellant in EXHIBIT F and to make its own representation thereon if it so desired but elected not to do so. The lower tribunal was thus in grave error to have found that the 1st Respondent was not afforded a fair hearing in the process leading up to EXHIBIT B10 and its decision to set aside EXHIBIT B10 is without lawful justification.

The Appellant urges the Court to resolve all the issues in its favour and set aside the judgment of the lower tribunal.

1ST RESPONDENT’S SUBMISSIONS:
ISSUE ONE
The Respondent submitted that the Appellants argument that the lower tribunal was wrong to have held that SECTION 284 AND 289(1) conferred jurisdiction on it to entertain the case of the respondent, was misconceived. The Respondent referred to SECTION 289(1) of ISA provides;
“A person aggrieved by any action or decision of the commission under this act, may institute an action in the tribunal or appeal against such decision within the period stipulated under this act”.

The Respondent contends that the section empowers any aggrieved person to bring an action against such decision and does not say it must be against SEC alone. The action can be brought against SEC and any other person who is statutorily an integral part of or affected by the grieving action. This includes all requisite government agencies whose functions are inter-related with those of SEC as envisaged by SECTION 13(Y) OF ISA, as well as participants, players and investors in the capital market.

The entities/persons specified in PARAGRAPH (I)-(IV) OF SECTION 284(1) (A) are those singled out among the many contemplated in SECTION 284(1) (A). Any dispute arising from the decision of SEC between other capital market players or investors not specified in (i)-(iv) or between them and SEC come within the jurisdiction of the lower tribunal under the omnibus provision in SECTION 284(1)(A). More particularly, SECTION 284(1)(c, d & e) which confer appropriate jurisdiction on the tribunal relative to this matter.

The Respondent submitted that the complaint being against the decision/determination of SEC as well as a dispute between an

investor and SEC working with another domestic regulator with which it has a co-operative agreement. The Respondent further submitted with respect to CBN that it is common knowledge that government agencies and departments interrelate in carrying out their statutory functions and when the act or function being carried out is primarily that of or initiated by a particular agency, the acts of other agencies carried out in aid of achieving the statutory duties of that particular agency constitute the act of that initiating agency. Therefore SEC & CBN are in substance interrelated in the discharge of their statutory regulatory duties/functions, which fact has been codified in SECTIONS 3(1) (E) and 13(Y) OF ISA 2007, SECTIONS 43 and 44 OF THE CBN ACT.

Also the membership of CBN on the board of SEC and SEC’s membership in the Financial Services Regulation Coordinating Committee testify to the existing statutory interrelationship between them. CBN being an agency/entity to facilitate the implementation of this joint directive and therefore an integral part of a subject matter within the jurisdiction of the lower tribunal, its presence as a party to the

action arising from the failure to implement this directive becomes indispensible.

The Appellant with specific reference to SECTION 284(1)(D) argued that the claim of the Respondent is not a dispute between an investor and SEC as envisaged by the section but rather it’s against a joint decision/determination of SEC and CBN and against the Appellant. The 1st Respondent in response submitted that the action is in substance against the counter-directive issued by the erstwhile Director-General of SEC and which CBN aligned itself with in its capacity as a regulatory agency statutorily empowered to aid SEC effectively operate and administer the ISA; while the Appellant is the capital market participant whose infractions prompted the decision being challenged.

The 1st Respondent further contends that their main claim is that SEC has no legal justification to arbitrarily counter its directive made earlier after an exhaustive investigation in the valid exercise of its statutory regulatory powers to the detriment of the 1st Respondent. The 1st Respondent submitted that if its claims are found to be a dispute involving the decision of SEC and it serves to

recover money from whom it is due as a result of its operation and application of the ISA, then so be it, as it falls head-on within the Tribunal’s jurisdiction and by no means removes it thereon.

The 1st Respondent submitted in the first place that the existence of a decision by SEC is not the condition precedent for invoking the lower Tribunal’s jurisdiction under the jurisdiction created under SECTION 289(1) of ISA. It is the 1st Respondents’ further submission that SECTION 289(1) clearly makes the existence of any action or decision precedent for invoking the lower tribunal jurisdiction. The 1st Respondent states that they were aggrieved by the reckless action of the then Director-General of SEC who arbitrarily and without any lawful justification cancelled its legal binding decision against the appellant to repay the 1st Respondents money for a failed subscription.

The 1st Respondent contends that the joint recommendations of SEC and CBN was at all material times treated by the Respondent as that of SEC’s having been prompted/initiated by the exercise of the regulatory and statutory powers of SEC in respect of matters

arising from capital market operations over which it has exclusive regulatory powers. It merely solicited the assistance of CBN in the exercise of its co-related statutory powers conferred on it by SECTION 13(Y) and 44(D). The 1st Respondent submitted that on the authority of SECTION 13(Y) of the ISA alone, the ISA anticipated that SEC will collaborate with other government agencies like CBN to achieve and facilitate the exercise of its powers and the discharge of its functions under ISA.

ISSUE 2
The 1st Respondent states that it is trite that to determine whether an action is statute barred, it is imperative to identify the cause of action and when it accrued. It is also trite that when statute prescribes the service of a pre-action notice on any person/entity, the cause of action in a suit instituted thereafter must be the same as stated in the pre-action notice and failure to meet this requirement will vitiate the pre-action notice rendering the suit incompetent.

The 1st Respondent served pre-hearing notices (EXHIBITS 13 & B14) on SEC and CBN on the 13th of August, 2014 and brought this action on the 24th of October, 2014 within the time

frame stipulated under the Public Officers Protection Act. The 1st Respondent submitted that this action is not statute barred.

The 1st Respondent submitted that assuming without conceding that the tribunal wrongly discountenanced the Appellant’s defence of limitation of action (not conceded) same did not occasion a miscarriage of justice in the circumstances and will therefore not warrant the vitiating of the Judgment on this Ground of Appeal, citing OWHONDA V. EKPECHI (2003) 17 NWLR (PT.849)326.

Finally, the 1st Respondent stated that the Appellant suffered no deprivation and consequently no miscarriage of justice was occasioned by the alleged error(if any) in the circumstances of this case and humbly urged the Court to discountenance the Appellant’s submissions on this point and uphold the judgment of the lower tribunal.

ISSUE 3
The 1st Respondent under issue three submitted that this divergent view is merely a figment of the Appellant’s imagination as it is crystal clear and common knowledge between the parties that the directives irrevocably mandated the appellant to pay interest on the money owed the 1st Respondent

from 23rd September, 2008 until same is fully liquidated.

The 1st Respondent refers to the evidence, that it was not part of its decision to escrow these sums and it also had no access to the said sums. The money purportedly escrowed was the money that always been available and due to have been paid to the 1st Respondent many months before the purported decision to escrow same arose.

On the issue of the purported cessation of interest on the escrowed sums, the 1st Respondent submitted that the Appellant is bound and liable to pay interest on the said sums because it undertook in writing to abide the decision/outcome of the joint investigation, referred to ATTORNEY GENERAL OF RIVERS STATE V. GREGORY OBI UDE & ORS: (2006) 6-7 SC 54; (2006) 17 NWLR (PT 1008) 436 to submit that the Appellant cannot benefit from the said escrow and would have only itself to blame for whatever ill it perceives has befallen it as a result.
The 1st Respondent urged the Court to dismiss the Appeal with punitive costs.

APPELLANTS REPLY BRIEF:
Reacting on the jurisdiction of the lower tribunal, the Appellant submitted that the 1st Respondents’

contention is a shocking misapprehension of SECTION 289(1) or is at best a deliberate attempt to turn the law on its head. The Appellant states that from SECTION 289(1), the draftsman was careful in limiting the scope of SECTION 289(1) to actions instituted against the 2nd Respondent, by an aggrieved person, who is not satisfied with the 2nd Defendants’ decision. The proviso to SECTION 289(1) puts the draftsman’s intention beyond doubt.

The Appellant further submitted that bringing the 3rd Respondent within the operation of SECTION 289(1) will amount to extending the jurisdiction of the tribunal and operation of SECTION 289(1). It is the same error that the lower tribunal fell into, when it treated the joint recommendation of the 2nd and 3rd Respondents as the sole action/decision of the 2nd Respondent, thereby erroneously attributing the actions of the 3rd Respondent to the 2nd Respondent, see page 711 of the Record of Appeal. The Appellant further commends the decision of DALFAM (NIG) LTD V. CHAKU INT LTD (2001) 15 NWLR (PT 735) 203 to the Court.

The Appellant on statute of limitation urge the Court to discountenance the arguments

canvassed by the 1st Respondent on the issue of limitation of action for reasons set out below.

The Appellant states that the 1st Respondent departed from the issue submitted by the appellant and formulated an issue that does not emanate from any of the Grounds in the Notice of Appeal. The Appellant admits that the 1st Respondent, and indeed all Respondents, are not bound to adopt the issues formulated by the Appellant but whatever issue is formulated must necessarily arise from the grounds in the Appellants Notice of Appeal. See OKECHUKWU V. INEC (2014) 17 NWLR (PT. 1436)255. It is the Appellant’s contention that the 1st Respondent, having not filed a Respondent’s notice is precluded from validating the Judgment of the lower tribunal on other grounds, referred to PML (NIG) LTD V. FRN LPELR-43480.

The Appellant submitted that the lower Tribunal’s Judgment would likely not have been the same if the issue of limitation raised by the Appellant was considered and determined. The Appellant states that it is pertinent to note that at the lower tribunal, the 1st Respondent reacted to the issue of limitation on the merit and did not object to the

manner and stage in which the issue of limitation was raised. Finally, the Appellant submitted that failure of the principal reliefs invariably impacts the subsidiary reliefs, thus affecting the entire suit.

The Appellant states that it is unjust to insist that they are liable to pay interests on the escrowed sum (while in custody of the 3rd Respondent and standing to the credit of the 1st Respondent). If at all the 1st Respondent is entitled to any interest on the escrowed sum, such cannot be recoverable from the Appellant but from the person in whose custody the money was.

The Appellant does not contest that the 2nd Respondent can prescribe interest rate in line with powers conferred on it. The Appellant’s submission is that the power or as the 1st Respondent would prefer to call it, the discretion must be exercised in line with the modalities provided by Section 313(1) of the ISA.

2ND RESPONDENT’S SUBMISSSIONS:
ISSUE 1
The 2nd Respondent submitted that the Investment and Securities Tribunal hereafter also referred to as IST had jurisdiction over the claims made by the 1st Respondent particularly against the Appellant

in the circumstances of this case. The Respondent states that their submission is premised on the fact that the Appellant is a company whose shares are listed in the Nigerian capital market regulated by the Investments and Securities Act, 2007 and subsidiary legislation made there under. The 2nd Respondent states that their authority for the foregoing submission includes the reiteration of the effect of proceedings conducted without jurisdiction by the Supreme Court in the decision in ONI V CADBURY (2016) 9 NWLR (Pt. 1516) 80 at 104-105

The 2nd Respondent’s contention is premised upon the fact that inter-government-agency collaboration is allowed by our law. The 2nd and 3rd Respondents are agents of the Executive Arm of Government flowing from Section 5 of the 1999 Constitution who are also allowed to collaborate in getting work done as succinctly shown by Section 13 (Y) OF THE ISA.

The 2nd Respondent submitted that collaboration is allowed between the 2nd Respondent and any other agency of government to resolve matters of common interest pertaining to capital market issues regulated by the 2nd Respondent and that the Tribunal is the

appropriate venue for litigating any dispute pertaining to any decision or effect of such collaborative effort. Furthermore, the 2nd Respondent submitted that the acts or omission challenged by the 1st Respondent which culminated to this Appeal is a decision or determination of the 2nd Respondent in the operation and application of the investment and securities Act (ISA).

The 2nd Respondent submitted that in view of the use of comma after the phrase “in the application of this act” in Section 284 (1) (A) the instances in which the ISA can exercise jurisdiction is not limited to the disputants enumerated in Section 284 (1) (A) but extend to all issues involving a decision of the 2nd Respondent in the operation and application of the Investment and Securities Act and irrespective of the parties to such dispute or decision. Furthermore, by Section 3 (1) interpretation Act it provides that punctuations forms part of an enactment, and regards shall be had to it accordingly in construing the enactment.

The 2nd Respondent states that the counter decision in controversy which is part of the issues in this appeal is a decision on a capital market issue

and also falls within Section 289(1) ISA to enable any person aggrieved to challenge same at the tribunal below we humbly submit irrespective of the fact that there are claims against persons other than the 2nd Respondent. Finally, it submitted that since the tribunal has jurisdiction over the principal issues, ancillary jurisdiction also results to the tribunal irrespective of the parties. It urges the Court to dismiss this Appeal.

ISSUE 2
The 2nd Respondent states that in practice and procedure before the Investment and Securities Tribunal (IST) whose decision on 9th May, 2018 led to this Appeal is governed by pleadings and the law governing pleadings; the essence of which includes to bring to the fore issues in controversy between the parties and is therefore consistent with Section 36 of the 1999 Constitution on the right of fair hearing. Facts not pleaded are therefore not issues in controversy to be subjected to any adjudication, citing OKULEYE V ADESANYA (2014) 12 NWLR (Pt. 1422) 521 at 535.

The 2nd Respondent submitted that their pleadings dated and filed on the 4th February 2015, found at pages 127 – 134 of the Record of Appeal,

the 2nd Respondent did not plead statute of limitation or any law on limitation of action as a specific defence. Also, the 2nd Respondent states that since the issue of limitation of action pursuant to Section 2 Public Officers Protection Act was not raised by the 2nd Respondent, nor any other public officer especially in their pleadings and addressed, they submitted that the application of the Public Officers Protection Act was not an issue that could be legitimately raised under any guise nor determined by the tribunal below, therefore any consideration of public officers protection act by the tribunal below is not relevant and of no effect to the case presented and argued by the parties.

The 2nd Respondent states that their contention is supported by the trite position of our law that a Court cannot shut its eyes to the Records of the Court, citing AGBAHOMOVO V EDUYEGBE (1999) 3 NWLR (Pt. 594) 170 at 181.

Furthermore, the 2nd Respondent states that the defence of limitation of action provided by Section 2 (2) (a) Public Officers Protection Act or any other law pertaining public officers, under our law can only avail any other person raising

same other than a public officer only if the public officer sued with the non-public officer raising same. See SYLVA V. INEC (2015) 16 NWLR (Pt. 1486) 576 at 619

Finally, the 2nd Respondent submitted that it is trite under our law that a decision is good law only applicable to the facts and circumstances decided therein., as held in UDO V. STATE (2016) 12 NWLR (Pt. 1525) 1 at 25. The 2nd Respondent urges the Court to find for the 2nd Respondent.

ISSUE 3
The 2nd Respondent on issues pertaining to return of money for un-allotted subscribed shares, and interest accrued and payable for failing to return such monies to subscribers of any un-allotted shares are capital market issues determined by Section 96 of the Investment and Securities Act (ISA), and Rule 64 of the Securities and Exchange Commission Rules made pursuant to ISA. Furthermore, by the Rules and customs of the Court money held on by any person belonging to another person must yield interest whilst the person who owns the money is being denied custody and use of such money. Therefore, interest rate and basis of computation is on the basis of the applicable customs, norms and practices in

the capital market, and this is consistent with the law and equity, referred to EKWUNIFE V WAYNE (1989) 5 NWLR (Pt. 122) 422 at 445.
The 2nd Respondent urges the Court to dismiss the Appeal and uphold the Judgment of the tribunal below.

APPELLANTS REPLY TO THE 2ND RESPONDENT.
The Appellant states that the law is trite and that a party is precluded from making a case on Appeal, different from what he made before the trial Court, citing OZOMGBACHI V AMADI & ORS (2018) LPELR-45152(SC).
The instances of the 2nd Respondent’s departure from its case at the lower Court are set out in the following submissions.

The Appellant submitted that the lower Tribunal’s jurisdiction as it relates to this case is donated by Section 284 and 289 (1) of the Investment and Securities Act (ISA). Where the parties reasoning is on the interpretation of the said sections, citing DALFAM (NIG) LTD. V CHAKU INT’L LTD. (2005) 15 NWLR (PT. 735) 203.

Furthermore, the provisions of Section 289 of the Investment and Securities Act are unambiguous and clear. The Section provides that “a person aggrieved by any action or decision of the

commission under this act, may institute an action in the tribunal or appeal against such decision within the period stipulated under this act”. The Appellant states that in keeping with the above enunciated principle that statute conferring jurisdiction must be strictly construed and it is clear that before the Investment and Securities Tribunal can assume jurisdiction to adjudicate over a matter, the compliant must arise from the sole action or decision of the Securities and Exchange Commission.
On the basis of the foregoing, the Appellant urges the Court to discountenance the arguments of the 2nd Respondent.

Continuing its argument, the Appellant relying on AGBAI V UKPABI (2014) 16 NWLR part 1434 page 524, submitted that the 2nd Respondent erroneously argued that limitation of action must be specifically pleaded. It is the Appellant’s submission that the 2nd Respondent’s contention finds no basis in law as it has been established by long line of cases that limitation of action goes to jurisdiction hence, it can be raised at any point of a proceeding. A further corollary to the forgoing is the issue whether the lower Court could

raise the issue of regularity or otherwise suo motu without inviting parties to address it on same, especially in the light of the fact that the parties affected did not raise any objection on the manner in which the objection of limitation of action was raised.

Lastly, that the 2nd Respondent contended that the failure of the lower Court to countenance the Appellant’s issue of limitation of action is not enough to set-aside the decision of the lower Court. In response, the Appellant humbly submits that the lower Court’s Judgment would likely not have been the same if the issue on limitation of action raised by the appellant was considered and determined. The Appellant submits it is clearly a case of miscarriage of justice capable of upturning the decision of the lower tribunal.

The Appellant contends that he has paid over the principal sum of N2,500.000,000 together with accrued interest of N2, 133,829,145 at the rate of 18% from 23/09/2008 to 01/02/2013; the 2nd and 3rd Respondents, decided to escrow the said sum pending when the claim of Asset Management Corporation of Nigeria (AMCON), a third party, against the 1st Respondent is sorted out.

The said sum ceased to be in the Appellant’s custody from the day the Appellants account was debited; the escrow account was domiciled with the 3rd Respondent, to the credit of the 1st Respondent. The decision to escrow the sum was that of the 2nd and 3rd Respondents (SEE EXHIBIT 4 AT PAGE 41 OF THE RECORD OF APPEAL). In line with the decision of the 2nd and 3rd Respondent, the Appellants account was debited and from that day the Appellant ceased to have access to or control over the sum. The Appellant urge the Court to resolve the final issue in its favour.

3RD RESPONDENT’S SUBMISSION:
ISSUE 1
The Appellant contends that the lower Investment Securities Tribunal was wrong to have held that Section 284 AND 289 (1) of the Investment & Securities Act conferred jurisdiction on it to entertain the case of the 1st Respondent. The 3rd Respondent submitted that the said section empowers any person aggrieved by any action or decision of SEC under the Investment and Securities Act, to institute an action in the Tribunal or to appeal against any decision made by SEC under the Act within the period stipulated under this Act.

The 3rd Respondent submitted that the above section accommodates the claims against CBN as a domestic regulator of other financial institutions. CBN is allowed in law to collaborate with other government agencies in this case with SEC, to resolve matters of common interest relating to capital market issues regulated by the 2nd Respondent and that the Investment and Securities Tribunal has jurisdiction to entertain any dispute arising from any decision of such collaboration and relating with supervisors of other financial institutions on matters of common interest, referred to NOSPETCO OIL & GAS LTD. V OLORUNNIMBE (2012) 10 NWLR (Pt. 1307) 115 at 159-160 and OKOROCHA V UBA PLC (2011) 1NWLR (Pt. 1228) 348 at 375.

The 3rd Respondent further submitted that the jurisdiction vested in the Tribunal under Section 284 (1) (B) (C) (D) (E) & (F) OF THE ACT is not circumscribed by, or limited to, any dispute arising from the decision or determination of the commission. That is to say the Tribunal has the jurisdiction to entertain, hear and determine any question of law or dispute involving the commission.

Finally, the 3rd Respondent submitted that the Tribunal

was right to rely on the provisions of Section 13(R) & (Y) of the ISA and treat the joint recommendation as the decision of SEC thereby assuming jurisdiction to entertain the matter. Therefore the Appellant is wrong to have alleged that EXHIBIT B6 is a mere recommendation and wasn’t sufficient to initiate the jurisdiction of the lower tribunal.
They urge the Court to discountenance the argument of the Appellant on the issue of jurisdiction as same is baseless.

ISSUE 2
The 3rd Respondent submitted that from the plethora of judicial authorities it is clear that a party intending to rely on the statute of limitation on the suit, must file a statement of defence and plead with specificity the relevant statute of limitation relied upon as a defence, referred to G. CAPPA LTD V DTN LTD ALL FWLR (Pt 740) 1254-1254. It is also trite that a party wishing to rely on special defence must plead it specifically otherwise it will not be available to him. See MALOMA V OLUSHOLA (1955) 15 WACA 12. That the issue of limitation of action pursuant to Section 2 Public Officers’ Protection Act was not pleaded by the 3rd Respondent and was not even

raised in their address. They therefore hold that it is not an issue that can be raised for nor imposed upon the 3rd Respondent by the Appellant. They submit that any issue or argument based thereon be discountenanced by this Court.

The 3rd Respondent submitted that the Appellant suffered no deprivation and consequently no miscarriage of justice was occasioned by the alleged error in the circumstance of this case and urges the Court to answer this issue in the affirmative and uphold the judgment of the lower tribunal.

ISSUE 3
It is the 3rd Respondent’s view that to successfully resolve this issue, recourse has to be made to Section 96 of the Investment and Securities Act and Rule 64 of the Securities and Exchange Commission. The 3rd Respondent further submits that the dispute arising from a commercial transaction within the confines of the capital market, it behooves on the Securities and Exchange Commission on the strength of Section 13 (R) AND (Y) to step in by itself or alongside other relevant government agencies to prevent or remedy any already existing infractions of the capital market rules or regulations.

The 3rd Respondent states that the 2008 public offer of shares by Finbank whose failure to issue shares subscribed or promptly refund the principal sum to the 1st Respondent resulted to the claim in the lower tribunal. Referred to AGIP NIGERIA LIMITED V. AGIP PETROLI INTERNATIONAL AND OTHERS (2010) 5 NWLR (Pt. 1187) 348 at 412 to submit that the liability of the Appellant to the 1st Respondent as regards the principal sum and the accrued interest on the N2.5 Billion was duly computed by the 2nd Respondent in line with Exhibit E on a compound interest basis. The 3rd Respondent states that the argument of the Appellant in this issue if upheld by this Court, it will aid the Appellant in benefiting from wrongfully withholding the 1st Respondent’s money and the yielding interest according to the laws and customs and usage applicable in capital market transactions. It urged the Court to find against the Appellant.

APPELLANTS REPLY TO THE 3RD RESPONDENT.
The Appellant in reply contend that the law is trite that a party is precluded from making a case on Appeal different from what he made before the trial Court citing OZOMGBACHI V. AMADI & ORS (2018) LPELR-45152(SC).

The instances of the 3rd Respondent’s departure from its case at the lower Court are set out in more details, in the following submissions. The Appellant submitted that it is not in dispute that the lower Court’s jurisdiction as it relates to the suit is donated by Section 284 and 289 (1) of the Investment and Securities Act (ISA). Where the parties reasoning diverge is on the interpretation of the said sections. Referred to DALFAM (NIG) LTD. V. CHAKU INT’L LTD (2001) 15 NWLR (pt 735) 203. That when strictly construed, it is clear from the section that before the Investment and Securities Tribunal can assume jurisdiction to adjudicate over a matter, the compliant must arise from the sole action or decision of the Securities and Exchange Commission. That Paragraph 12 of the 1st Respondents originating application (page 7 of the Record of Appeal) and PARAGRAPH 3.8 OF EXHIBIT 3A which was contested by the 3rd Respondent, all point to the crux of the action culminating to this Appeal was indeed the joint recommendation of the 2nd and 3rd Respondent.

The Appellant submitted that even the Court of Appeal decision in the case of OKOROCHA V UBA

PLC (2011) 1 NWLR (pt 1228) relied by the 3rd Respondent supports the Appellant’s proposition that before the jurisdiction of the lower tribunal can be triggered, there must first exist a decision or action of the commission which has been complained of. On the basis of the foregoing, the Appellant urged the Court to discountenance the argument of the 3rd Respondent.

The Appellant’s grouse with the Respondent’s issue two is that the lower tribunal was wrong to have discountenanced the Appellant’s defence on limitation law on the basis that same was first raised in the appellants’ final written address and not in its pleadings. Citing SULE V. BANDI & ANOR (2018) LPELR-43870 (CA) and BUREMOH V. AKANDE (2017) LPELR-41565(SC)

The Appellant states that the requirement of fair hearing was amply complied with as the 1st Respondent and the 3rd Respondent upon service of the Appellants’ final written address had sufficient opportunity to controvert same in their final Written Address as well. The 3rd Respondent having elected not to file a final written address, cannot be heard to say that it was not afforded fair

hearing as it only contemplates opportunity to be heard and not necessarily being heard. Referred to ENL CONSORTIUM LTD V. SHAMBALILAT SHELTER (NIG) LTD (2018) LPELR-43902 (SC).

The Appellant contends that the Court has settled the issue of whether a non-public officer sued alongside a public officer can rely on the defence of limitation of action provided in the POPA, citingALHAJI (DR) ADO IBRAHIM V. ALHAJI MAIGIDA U. LAWAL & ORS (2015) LPELR 24736 (SC) and also AKINSANYA & ORS V. SHONEYE & ORS (2016) LPELR- 41939 (CA).

From the forgoing, it is beyond cavil that the mere fact that the 2nd and 3rd Respondent did not raise the defence does not prevent the Appellant from raising the issue of limitation of action. The Appellant deems it pertinent to delineate the issues between parties. It is in contention amongst parties that the Appellant has altogether paid over the principal sum of N2, 500,000,000 together with accrued interest of N2, 133,829,145 at the rate of 18% from 23/09/2008 to 01/02/2013. The 2nd and 3rd Respondent, decided to escrow the said sum pending when the claim of Asset Management Corporation of Nigeria (AMCON), a third

party, against the 1st Respondent is sorted out. The side sum ceased to be in the Appellants’ custody from the Appellants account was debited. The escrowed account was domiciled with the 3rd Respondent to the credit of the 1st Respondent (which the 1st Respondent admitted in paragraph 18 & 19 of its statement of reasons for the application and paragraphs 21 & 22 of the witness statement of oath at page 8 & 21 of the Record of Appeal respectively). In view of the foregoing, the Appellant states that the 3rd Respondent is estopped from contending that the Appellant is liable to pay interest on the escrowed sums. Finally, the Appellant submitted that they are extremely astounded as to why a Defendant who had maintained a position at the lower Court would on appeal turn around to maintain a different position by canvassing arguments that lack any legal support.

The Appellant urged the Court to discountenance the submission of the 3rd Respondent and to resolve the Appeal in its favour.

RESOLUTION:
For ease of consideration and expediency, the issues adopted for resolution shall be determined seamlessly. The natural place to

commence consideration is the jurisdictional issue set out by the Appellant. A short background of the issues is necessary. The Appellant initially filed its defence along a Preliminary Objection challenging the jurisdiction of the Tribunal wherein it founded the challenge on grounds other than the one contended in this Appeal. The Preliminary objection was dismissed. It further raised the objection under consideration in its final Written Address.

hear and determine a matter without the requisite jurisdiction, it amounts to an exercise in futility and the proceedings and judgment generated there from are null, void and of no effect no matter how well conducted. See Nigeria Deposit Insurance Corporation v Central Bank of Nigeria & Anor (2002) 7 NWLR (pt. 766) 273, Shelim & Anor v Gobang (2009) 12 NWLR (pt. 1156) 435, Utih v Onoyivwe (1991) 1 NWLR (pt. 166) 205, Petrojessica Enterprises Ltd & Anor v Leventis Technical Co. Ltd (1992) 5 NWLR (pt 244) 675.” Per OKORO, J.S.C.

Jurisdiction is bestowed by the constitution or statute.

The tribunal’s jurisdiction is clearly circumscribed by the Investment Securities Act (ISA) particularly Section 284 (1) (a)- (f) of the Act which states thus:
“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

operator and their clients;
(iii) Between an investor and securities exchange or capital trade point or clearing and settlement agency;
(iii) Between capital market operators and self regulatory organization;
(b) The commission and self regularity 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.
Closely related to above section on the jurisdiction of the tribunal is Section 289(1) which says:
“A person aggrieved by any action or decision of the Commission under this Act, may institute an action in the Tribunal or appeal against an action in the Tribunal or appeal against such decision under this Act.”
The Appellant contends that 3 categories have been circumscribed by Section 284 as reproduced above, and that no other category is contemplated by the Act. The Court

per SAULAWA, JCA in the OKOROCHA V UBA PLC & 4 ORS (2011) 1 NWLR (Pt. 1228) 348 on the interpretation of Section 284(1) (a)-(f) of the Investment and Securities Act held that a decision or determination by the Commission is required before a party can institute an action before the Tribunal and detailed different categories, while on matters touching on Section 284( 1) (B) – (F), the prior decision or determination of the Commission is not needed as a party can directly approach the Tribunal. The tribunal held that the claim of the 1st Respondent comes within Section 284(1) (D) of the ISA and therefore does not require a prior decision by the 2nd Respondent.
The import of Section 289(1) was addressed by the apex Court in the case of OKOROCHA V UBA (2018) LPELR-45122(SC) where it held thus:
“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. Per OKORO, J.S.C.
The Apex Court made it clear that a decision or action by the Commission can inure the right of action by any party named in Section 284(1) (A)-(F) and all those to be affected should be made parties to the action. Was there a decision or action taken by the 2nd Respondent in particular? The answer is in the affirmative, the decision or

as the Appellant wants the Court to believe that it is a mere recommendation and not decision but it was an implementable directive/step which the Appellant part performed. The 2nd Respondent recommended a refund with interest and the Appellant partially complied with it. Furthermore, as the 2nd Respondent posited, the failure to act is also actionable, this is seen at the backdrop of Section 18 the Interpretation Act, Cap 192 LFN, 1990 which defines the word “Act” as including an omission, and reference to the doing of an act shall be construed accordingly. Therefore, it must not only be when the Commission alone makes a pronouncement that a cause action can inure, its failure to act can inure a right of action by a party. Furthermore, any decision jointly taken and adopted by the 2nd Respondent becomes its decision. Therefore by Section 289(1) any one dissatisfied with action or omission to act when a complaint is made to the commission, the said party can approach the Tribunal for redress. Section 289(1) did not in any way limit the right of action to only appeals against the decisions of the Commission. There is no statutory provision saying

The joint decision by 2nd and 3rd Respondents was indeed a decision that any aggrieved party can approach the Tribunal on for redress. Particularly so in this case because it was the guarantee given by the 3rd Respondent that allowed the merger between the Appellant and Fin Bank to conclude pending the determination of the liability of the Fin Bank. Therefore, the 3rd Respondent cannot be a stranger to the decision to be taken. It was a decision because it ascribed responsibility on the Appellant to pay up what it withheld. Going to the Tribunal was not to compel compliance but to also challenge the action of the 2nd Respondent in relieving the Appellant of a liability earlier declared. In any case, there was a decision in this case when the 2nd Respondent by EXHIBIT B6 directed thus:
“Following your various letters regarding the report of the joint investigation, we are pleased to inform you that the investigators recommended that in line with Sec’s earlier decision, Fin Bank should refund the sum of N2.5 Billion with accrued interest at the rate of 18% per annum to HYTECK MICRO LIMITED (A SISTER COMPANY OF VISL) in accordance with

Sec Rule 64(4).” Obviously, the statement above is a decision which can activate the jurisdiction of the Tribunal. Furthermore, the basis of the decision is related to the claim of the 1st Respondent. You cannot divorce the issue of outstanding interest from the substance of what earned the interest. It did not arise midair. The root is the N2.5 Billion Naira withheld with principal only paid on the intervention of the 2nd and the 3rd Respondents leaving the issue of interest contested.
The contention that the 3rd Respondent cannot come under the jurisdiction of the Tribunal is a non starter because the 2nd and 3rd Respondents are interrelated and both are key players in the financial sector of the economy clearly made so by the law and the 3rd Respondent is even on the Board of the 2nd Respondent. The ISA did not say that only SEC can be a party to claims before it. The Appellant cannot say they are strangers to one another and particularly so because the Appellant acquired the liability as a fall out of a merger with Fin Bank Plc which was approved by the 3rd Respondent in the midst of the issues. Issues of the withheld money featured in the

merger formalities. They both can come under the jurisdiction of the Tribunal and also because by the subject matter, no other Court can adjudicate upon. The claim goes beyond recovery of money. The money was paid for shares in a process under the control of the 2nd Respondent. I agree with the 1st Respondent that the presence of the Appellant who is a participant in the capital market and the 3rd Respondent are necessary in the effectual determination of the claim. In any case misjoinder of parties cannot defeat a claim. The Appellant being the beneficiary of the money withheld cannot wriggle out of the jurisdiction of the Tribunal.
I find for the Respondents and say that the tribunal had jurisdiction to hear and determine the claim.

The next question is the challenge alleging the Tribunal discarded the special defence of statute of limitation merely because the Appellant failed to plead same and only raised it in his final address. The Appellant only raised the special defence of Statute of limitation in its final written address contending that the claim was caught by Section 2 (2) (A) of the Public Officer’s Protection Act. It argued that

the cause of action arose from EXHIBIT B dated 1st February, 2013 whilst the action commenced 24th October, 2014 far beyond the 3 months allowed and therefore the action is statute barred. The tribunal dismissed the objection on the ground that it was raised in the final address amongst other reasons. Appellant argued that because the 2nd and 3rd Respondents did not file a written address consequently they admitted same but the 1st Respondent opposed it. I do not believe that argument can be right considering the order of filing of addresses. The Appellant was a defendant along the 2nd and 3rd Respondent.

not in such a statute, it must be read retroactively. A person should not sleep on his rights.”

It is common ground that the question as to whether an action is statute barred is dependent on the nature of the action, and the relevant provisions of the statute of limitations and timings of the cause of action and when the action was filed. Even the facts enumerated by the Appellant were disputed by the 1st Respondent.
Superior Courts have also held in several decisions too numerous to call that time begins to run against a plaintiff, for the purpose of limitation, from the date the cause of action accrues which, generally, is the date on which the incident or event giving rise to the cause of action occurs. See JOHN EBOIGBE V. NNPC (1994) LPELR – 992 (SC) and ACTION CONGRESS OF NIGERIA & ANOR V. INEC (2013) LPELR – 19991 (CA) which held thus:
“The general principle of law is that where the law provides for the bringing of action within a prescribed period in respect of a cause of action accruing to a plaintiff, proceedings shall not be brought after the time prescribed by the statute had expired. See Obiefuna v. Okoye (1961) 1 All

NLR 357. This means an action brought outside the prescribed period offends against the provision of the statute and does not give rise to a cause of action. This was also the decision of this Court in Eboigbe v. NNPC (1995 NWLR (Pt.347) 649 at 659 where Adio JSC said: “Where an action is statute-barred, a plaintiff who might have had a cause of action loses the right to enforce cause of action by judicial process because the period of time laid down by the limitation law for institution such an action has elapsed. See Odubeko v. Fowler (1993) 7 NWLR (Pt.308) 637. An action commenced after the expiration of the period within which an action must be brought as stipulated in the statute of limitation is not maintainable. See Ekeogu v. Aliri (1991) 3 NWLR (Pt.179) 258. In short when the statute of limitation question prescribed a period within which an action must be brought, legal proceedings cannot be proper or validly instituted after the expiration of the prescribed period. See Sanda v. Kukawa Local Government (1992) NWLR (Pt.174) 379.”

The law relied upon by the Appellant is the Public Officers’ Protection Act (POPA), the Appellant being a party

in the claim can rightly raise the defence. It is required by rules of Court that a defence of statute of limitation should ordinarily be pleaded, see AJAYI V ADEBIYI & ORS (2012) LPLER-7811(SC) which held thus:
“In circumstances such as this, this very Court had put its stamp of authority on what should apply in the case of Ishola Balogun Ketu v. Chief Wahabi Onikoro (1984) 10 SC 265 at 267 268 anchored by Obaseki JSC thus; “It is a cardinal rule of pleading that such a specific matter as Limitation Law must be expressly set out or pleaded in the statement of defence. Once it is not pleaded the defendant cannot be granted the protection of that law. In this case, it is not pleaded and even if it is applicable, the Court cannot grant the defendants the benefit of the Limitation Law contrary to the principle of the avoidance of surprise.” Per PETER-ODILI, J.S.C.
The defence once pleaded rests on the facts stated in the Claimant’s Writ of Summons and Statement of Claim and not on the Defendant’s Statement of Defence. The purpose of the requirement on the Defendant to raise defence that the suit is statute barred is to put the Claimant on notice, so

as not to take him by surprise during the trial. ELABANJO V. DAWODU (SUPRA). The case of NASIR V C.S.C. KANO STATE (2010) 5 NWLR (Pt. 1190) 253 at 266. The Appellant placed heavy reliance on the case NASIR V C.S.C. KANO STATE (2010) 5 NWLR (Pt. 1190) 253 at 266 wherein the apex Court held that statute of limitation being a jurisdictional issue can be raised any time. I agree with the Appellant that an objection on statute of limitation raises a jurisdictional issue which can raised at any time, however, the Apex Court did not categorically say there is no need for raising it properly, by giving notice stating the relevant particulars as has been the practice. In any case, the issue that it should be pleaded was further emphasized by the apex Court on a later decision cited above, the case of AJAYI V ADEBIYI & ORS (2012) LPLER-7811(SC), where the need to plead statute of limitation was reinforced. Furthermore, the rule is that where you find two decision of the apex Court which seems to contradict themselves, the rule is that the latter one prevails. It was his lordship, RHODES-VIVOOR, JSC who in OBIUWEUBI V CBN (2011) 7 NWLR (Pt. 1247) 465 at 508 said:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“The position of stare decisis is not for counsel to follow the decision he likes but to follow the decision that is more recent.” See also OKPOZO V BENDEL NEWSPAPER CORPORATION & ANOR (1990) 5 NWLR (Pt. 153) 652 at 661.
The decision in AJAYI V ADEBIYI (SUPRA) is later in time and therefore binding. Furthermore, in the case of NASIR V C.S.C (SUPRA) there was a formal application filed which gave notice to the Appellant that there is an objection grounded on statute of limitation. It was not raised for the first time in final Written Address of the party raising it. The objection was not raised for the first time in the Written Address as was done here. I agree with the trial Tribunal that the Appellant failed to do the needful to take advantage of the statute of limitation, he did not give relevant particulars realizing that the transaction between the parties kept changing character and the 1st Respondent contended that it was the action of the 2nd Respondent in releasing the Appellant from further liability that made it go to the tribunal and therefore it was not the refund of the 2.5 billion Naira that was the cause of action.

Therefore, the case of Nasir is not on all fours with the facts here. When facts are disputed, it is only proper to file an Affidavit that can be opposed also with facts that the Court can then determine.
It was raised during Final Addresses of counsel on disputed facts and without necessary particulars. It is from the paragraphs of the claim stating when the cause of action arose, and when the suit was claimed. Looking at the contention, I disagree that the said exhibits determined when the cause of action arose. It was evidently made clear that the Appellant dilly dally when served with the said demand, it was the intervention of the 3rd Respondent that made the Appellant accept to pay the principal sum. There were further negotiations and resolutions on the issue of interest and the claim was principally on the issue of interest not the principal sum so the cause of action couldn’t have arisen as stated by the Appellant. The Appellant should have extracted from the statement of claim the event that made the 1st Respondent file the claim. Furthermore, the Appellant made incomplete payment after the decision. The claim is basically on the

outstanding amount which represents interest. The Appellant failed to do the needful if it wanted to raise the issue of jurisdiction without a formal application. I believe this is the type of challenge to jurisdiction that a party should not raise viva voce. The relevant details should all come from the Statement of claim and all the Appellant did was to selectively refer to pieces of evidence before the tribunal. I have seen PAGES 374- 376 of the Record of Appeal and the Appellant merely relied on evidence tendered before the Court without referring to the statement of claim from where the relevant dates and details should be extracted to support the objection that the suit is statute barred. Failure to adhere to settled procedure had defeated the defence. In any case the Respondents argue that the action was initiated by due process of pre action notice and filed within time. Those facts are not what the tribunal should do in the recess of their chambers, the party must clearly identify and set it before the Court. The Appellant could have filed the motion along his Final Address just so that the necessary particulars are stated. Failure to do so

means the tribunal was to examine and identify the date the cause of action arose. That would have been wrong for it to do so. It is not their duty to fill in details for a party before the Court. The Tribunal was wrong not to consider and strike out the objection for incompetence due to lack of relevant particulars. It is wrong to jettison the issue the way it was done, it should have resolved the issue in the alternative to give this Court an opportunity to see its view on the matter. However, it has not occasioned a miscarriage of justice because the Appellant failed to supply the relevant particulars.

On the last issue formulated by the Appellant which is fundamentally on the rate of interest awarded by the tribunal on the outstanding amount withheld by the Appellant. The Appellant was directed through Exhibit B and B1 to refund the sum of N2.5 Billion with interest at the rate of 18% from 23rd September, 2008 until the principal and interest are fully liquidated. The Appellant and 3rd Respondent jointly issued EXHIBIT B5 consenting to the debit of the Fin Bank pending further investigations and after which the Appellant was still found liable

and it was communicated by EXHIBIT B6 which is in line with earlier recommendation. The principal sum was paid into an escrow account pending other claims. By order of Court the sum in the escrow account was paid over to the Chief Registrar in settlement of a debt owed to AMCON by the 1st Respondent. It is obvious that the Appellant admitted the findings reflected in EXHIBIT B1 AND B6 and facts admitted needs no proof.

Furthermore, the tribunal analyzed in detail the power of the 2nd Respondent to fix interest as allowed by ISA as reinforced by the case of TRANSNATIONAL CORPORATION OF NIGERIA PLC V MR. MRS EGBE & ANOR (2017) LPLER-42243(CA) where the powers of the 2nd Respondent to fix interest was reiterated. Specifically, Section 96(1) (2) (3) of the Investment and Securities Act and the Securities and Exchange Commission Rules particularly RULES 64 (4) & (7). These two provisions also empower SEC to impose higher interest rates, so it has a discretion to fix interest rate and the type of interest. The essence of it is to protect the capital market from fraudulent activities as held in ITSUELI V SEC (2012) 2 NWLR (Pt. 1284) 329. In further

justification, the Tribunal referred to EXHIBIT E which was sent to the Appellant and it reiterated the issue of interest, I reproduce it here, it said thus:
“The commission has reviewed your computation of interest on the N2.5.Billion paid in respect of the above subject and finds that same was not in line with the commission’s regulation or computation of interest on return money.
As stated in our letter under reference, the computation of interest on return money is based on per annum calculation, capitalizing the unpaid interest at the end of the year and calculating the interest payment on the new capitalized figure. This is done at the end of its year till final payment.
Find attached a copy of the correct computation of interest…
The attached computed interest read: N988,058,072.21
The attached computed interest sheet further read
“Note: Interest is calculated on annual compounding basis.”

It was on the basis of above that the Tribunal resolved the issue of interest.

The Appellant further contends that the period of escrow should not have been computed, I shudder to ask, whether the

Appellant settled all the outstanding including interest by that the time of escrow. The answer is no. Therefore, there was still an outstanding on which basis interest run. And the delay was caused by the Appellant which was being recalcitrant in effecting payment. The necessity of the escrow had its basis on the disputed amount and interest and the payment was pending the resolution of the issues and not because the Appellant had fully paid all the outstanding including interest. While the money was in escrow it was not a payment made to the 1st Respondent and it had no access or control over the funds in the escrow account. EXHIBIT 6 was followed by EXHIBIT E, and from the body authorized to determine interest rate. If the Appellant wants to challenge the powers of the 2nd Respondent, it should have done so properly. Date of payment of the principal sum can only be from the date the money was remitted to the Chief Registrar of the Federal High Court since it was payment on behalf of the 1st Respondent and not any earlier. The 2nd Respondent exercised its statutory power in fixing interest and the Court cannot interfere except if it was not lawfully exercised

and according to law. The Tribunal merely affirmed what the 2nd Respondent had done lawfully. Furthermore, the time difference between EXHIBIT B6 and EXHIBIT E cannot be any advantage to the Appellant. EXHIBIT E was in response to its several letters and as the Appellant was in default while writing the 2nd Respondent on the issue and so EXHIBIT E is valid and its retroactive effect is based on the default to pay up. If the Appellant wants to be convincing it should have settled all the outstanding with its supposed simple interest, but it failed. The argument against compound interest is not borne out of sincerity but a clever way to avoid liability previously admitted. Furthermore, Exhibit B did not specify the type of interest to apply but that lacuna was filled by EXHIBIT E, it said:
“The commission has reviewed your computation of interest on N2.5 Billion paid in respect of the above subject and finds that same was not in line with the Commission’s regulation on computation of interest on return money.”

I agree with the Respondents that Section 313(1) & (5) are not applicable in this regard, the directive having been issued

pursuant to extant rules and regulations of the Commission, it was not a new regulation.

The decision to pay simple interest was unilaterally fixed by the Appellant and it lacks the power to fix interest. The Appellant’s argument is therefore flawed. Can the Appellant be heard to even complain? A party cannot seek to benefit from its own wrong, see IBRAHIM V OSUNDE (2009) 6 NWLR (Pt. 1137) 382. It signed an undertaking to be bound by the decision of the joint investigation, see EXHIBIT B7. I also find that there was no Appeal against the setting aside of EXHIBIT B10 by the Tribunal. Furthermore, it was issued in breach of rules of fair hearing and therefore, the Tribunal was justified in striking it out. Where a party should be heard before a decision and such is not heard, the decision cannot stand, it is null and void.

Flowing from the resolution of all the three issues against the Appellant, the Appeal lacks merit and is hereby dismissed. The judgment of the Investment and Securities Tribunal decided on the 9th May, 2018 is hereby affirmed.
No order as to cost.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the

judgment just delivered by my learned brother, Yargata Byenchit Nimpar, JCA.
I am in complete agreement with his reasoning and conclusion which I adopt in the appeal as mine.
The appeal truly from the record before the Court is lacking in merit. The appeal is hereby dismissed and I abide by the consequential orders made there in.

MOHAMMED BABA IDRIS, J.C.A.: My learned brother YARGATA NIMPAR, JCA. afforded me the opportunity of reading before today a draft copy of the lead judgment just delivered.
I adopt the judgment as mine with nothing further to add.

Appearances:

OGUNMUYINA BALOGUN Esq., with him, SAMUEL EZENWAYE Esq. For Appellant(s)

MAUREEN ONYUIKE Esq., with her, OBINNA OKONKWO Esq. for 1st Respondent
OGECHI OGBONNA Esq. for 2nd Respondent
HEKEM OGUNLEYE Esq., with him, MURPHY INARE Esq. for 3rd Respondent For Respondent(s)

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