FIRST REGISTRARS (NIG) LTD v. SEC & ANOR (2022)

FIRST REGISTRARS (NIG) LTD v. SEC & ANOR

(2022)LCN/16681(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, January 14, 2022

CA/L/969/2015

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal

Between

FIRST REGISTRARS NIGERIA LIMITED APPELANT(S)

And

1. SECURITIES AND EXCHANGE COMMISSION 2. EDWARD NOSIRI, JNR RESPONDENT(S)

RATIO

THE PURPOSE AND IMPORTANCE OF PRE-ACTION NOTICE AND COMPLIANCE

The purpose and importance of pre-action and compliance therewith has been stated and restated in several decisions of our appellate Courts. The purpose of service of a pre-action notice is to give adequate notice to the statutory body on which it is required to be served in order to decide whether to compromise the Plaintiff’s claims or to contest it in Court. See ENOIDEM & ORS V. UMOH (2018) LPELR–46155 (CA); NNPC V. TIJANI (2006) LPELR–7698 (CA). PER UMAR, J.C.A.

THE POSITION OF LAW ON THE FAILURE TO SERVE A PRE-ACTION NOTICE

Failure to serve a pre-action notice where required is not a mere technicality, it would amount to a condition precedent not fulfilled before the institution of the action, thereby rendering the suit incompetent. The jurisdiction of the Court is put in abeyance until the provision on pre-action notice is complied with by the Plaintiff. See OJO & ANOR V. NATIONAL PENSION COMMISSION & ANOR (2019) LPELR–47839 (SC); NIGERCARE DEVELOPMENT CO. LTD V. ADAMAWA STATE WATER BOARD & ORS (2008) LPELR–1997 (SC); SARKI & ORS V. MINISTRY FOR CHIEFTAINCY AFFAIRS, KADUNA STATE & ORS (2014) LPELR–23604 (CA).

Notwithstanding the mandatories of the requirement for service of pre-action notice, there is no gainsaying that it only applies to situations and instances provided by the relevant statute. It is not for the Court or parties to infer extraneous matters into the words of an enactment. Therefore, where an enactment makes provision for the service of pre-action notice, such provision ought to be considered to determine whether they apply to the suit in question. PER UMAR, J.C.A.

THE CARDINAL RULE OF INTERPRETATION OF STATUTES

It is a cardinal rule of statutory interpretation that whenever a Court is faced with the interpretation of statutory provisions, the statute must be read as a whole, not in isolation in order to ascertain the true meaning of the provisions of the enactment. See AKPAMGBO-OKADIGBO & ORS V. CHIDI & ORS (2015) LPELR–24564 (SC); NOBIS-ELENDU V. INEC & ORS (2015) LPELR–25127 (SC); MOBIL OIL (NIG) PLC V. IAL 36 INC (2000) LPELR–1883 (SC). Therefore, in seeking to interpret the provisions of the aforesaid Section 289, I shall consider them together.
Subsection (1) of Section 289 provides thus: “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: Provided that the aggrieved person shall give to the Commission 14 days notice in writing of his intention to institute an action or appeal against its decision.” (Emphasis mine). From the underlined portion of the subsection, it is obvious that “an action” refers to action taken out before the Investments and Securities Tribunal (IST). Thus, the requirement of 14 days’ pre-action in the proviso to the subsection before institution of an action refers to an action taken out before the IST. The purport of “appeal” as used in the subsection will become clearer as I interpret the subsequent subsections. PER UMAR, J.C.A.

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Lagos Division of the Federal High Court delivered by C.J. Aneke, J on 15th December, 2014 wherein the learned trial Judge upheld the 1st Respondent’s Notice of Preliminary Objection and struck out the suit for the Appellant’s failure to serve a pre-action notice on the 1st Respondent before the suit was instituted.

BRIEF FACTS OF THE CASE
Pursuant to leave granted by the trial Court permitting the Appellant to seek judicial review, the Appellant commenced the suit culminating in this appeal against the 1st Respondent by Originating Motion accompanied by an affidavit and a written address seeking the following reliefs:
i. “A DECLARATION that the Respondent lacks the authority, right and power to impose the sanctions as contained in the Respondent’s letter dated 9th February 2011 and titled “RE: PETITION AGAINST FIRST REGISTRARS LIMITED AND THEIR ASSOCIATES WITH RESPECT TO THE PURCHASE OF BANK PHB SHARES IFO-ELDER NKEM NOSIRI” and addressed to the Applicant directing the Applicant to:
A. Refund Elder Nkem Nosiri, the sum of N339,830,000.00 (Three Hundred and Thirty Nine Million, Eight Hundred and Thirty Thousand Naira) (N340,000,000.00-N170,000.00 being value of the 10,000 units allotted to the complainant in his name) plus accrued interest at MPR + 2% from January 31st, 2008 to the date of payment.
B. Pay a penalty of N5,000.00 (Five Thousand Naira) per day from January 31st, 2008 to the date of payment to the complainant.
When the Applicant has not been adjudged to have violated or contributed to the violation of any specific section of the Investment and Securities Act 2007 or the Securities and Exchange Commission’s Rules and Regulations and when the purported exercise of such power and authority of sanction as conveyed to the Applicant in the letter referred to above, is ultra vires the Respondent, unlawful, wrong and void ab initio in the circumstances.
ii. A DECLARATION that the decision of the Respondent as conveyed in its letter dated 9th February 2011 with reference number SEC/M&I/INVTG/R3896/10 and titled “RE: PETITION AGAINST FIRST REGISTRARS LIMITED AND THEIR ASSOCIATES WITH RESPECT TO THE PURCHASE OF BANK PHB SHARES IFO-ELDER NKEM NOSIRI” and addressed to the Applicant, provided no ground or reason for the decision and is as such, procedurally invalid, unreasonable, illegal for non-compliance with the provisions of the Investment and Securities Act 2007, Irrational and/or defeats the legitimate expectations of the Applicant herein and is therefore void ab initio.
iii. AN ORDER OF CERTIORARI removing into this Honourable Court for the purpose of being quashed, the decision of the Respondent, as conveyed in the letter dated 9th February 2011 with reference number SEC/M&I/INVTG/R3896/10 titled “RE: PETITION AGAINST FIRST REGISTRARS LIMITED AND THEIR ASSOCIATES WITH RESPECT TO THE PURCHASE OF BANK PHB SHARES IFO-ELDER NKEM NOSIRI and addressed to the Applicant on the grounds that such decision is ultra vires the Respondent, illegal, procedurally invalid, unreasonable, irrational and/or defeats the legitimate expectations of the Applicant herein.
iv. AN ORDER of perpetual injunction restraining the Respondent, its agents, servants, privies and any other person or body which derives its authority from the Respondent from acting in any way on, giving effect to and/ or carrying out the decision of the Respondent as conveyed in the Respondent’s letter dated 9th February 2011 with reference number SEC/M&I/INVTG/R3896/10 and titled “RE: PETITION AGAINST FIRST REGISTRARS LIMITED AND THEIR ASSOCIATES WITH RESPECT TO THE PURCHASE OF BANK PHB SHARES IFO-ELDER NKEM NOSIRI” and from imposing any regulatory sanction on the Applicant or otherwise interfering in whatever manner with or disturbing the Applicant in the pursuit of its business as a registered capital market operator.
AND for such further or other orders as the Court may consider appropriate in the circumstances.” (The Originating Motion and accompanying processes are at pages 139–196 of Volume I of the record of appeal).

Upon service of the originating processes on it, the 1st Respondent filed a counter-affidavit with exhibits attached and a Written Address. The 1st Respondent also filed a Notice of Preliminary Objection on 19th September, 2011 challenging the jurisdiction of the trial Court to entertain the action. By its said Notice of Preliminary Objection, the 1st Respondent prayed the trial Court for the following:
i. “AN ORDER of this Honourable Court dismissing this suit for lack of jurisdiction.
ii. AN ORDER of this Honourable Court dismissing this suit as an abuse of Court process.
iii. AND FOR SUCH FURTHER ORDER(S) as the Honourable Court may deem fit to make in the circumstances.”

The objection was predicated on the following grounds:
i. “The Applicant/Respondent’s suit was not initiated by the due process of law.
ii. The conditions precedent to instituting the suit was not fulfilled before the action was commenced.
iii. The entire action is scandalous, frivolous, vexatious, tainted with malice and brought as an afterthought aimed at harassing/preventing the Applicant from carrying out its regulatory duties.
iv. The purported cause of action if any caught up (sic) by the limitation laws.” (The Notice of Preliminary Objection, affidavit in support and Written Address are at pages 310–344 of the record of appeal).

The Appellant opposed the Notice of Preliminary Objection by filing a counter-affidavit and Written Address and the 1st Respondent filed a further affidavit. The 2nd Respondent was joined as a Defendant to the suit pursuant to an order of the trial Court made on 26th November, 2013 and he subsequently filed a Written Address on the issue of jurisdiction whereby he aligned himself with the position of the 1st Respondent and urged the trial Court to strike out the suit.

Upon the hearing of the 1st Respondent’s Notice of Preliminary Objection, the trial Court delivered a considered ruling wherein it held that it had the jurisdiction to entertain the suit as constituted, except as regards with the failure to serve a pre-hearing notice on the 1st Respondent, on ground of which the suit was struck out.

Displeased with the ruling of the trial Court, the Appellant filed a Notice of Appeal before this Court which was amended pursuant to an order of this Court. The Amended Notice of Appeal which was filed on 4th December, 2020 and deemed properly filed on 6th December, 2020 contains a sole ground of appeal thus:
“The Federal High Court erred in law when it held that it had no jurisdiction to entertain the Appellant’s Originating Application dated 28th February, 2011 as a result of the failure of the Applicant to serve a pre-action notice on the 1st Respondent before commencing the action.”

The parties accordingly filed and exchange their briefs of argument. The appeal was heard on 1st November, 2021 wherein counsel for the parties adopted their respective briefs of argument. The Appellant’s amended brief of argument as well as it reply briefs to the 1st and 2nd Respondents’ briefs of argument were settled by P.O. OLALERE, ESQ. The Appellant’s amended brief of argument was filed on 4th December, 2020 and deemed properly filed on 6th December, 2020; its reply brief to the 1st Respondent’s amended brief of argument was filed on 16th December, 2020; while its reply brief to the 2nd Respondent’s brief of argument was also filed on 16th December, 2020.

The 1st Respondent amended brief of argument filed on 10th December, 2020 was settled by NNAMDI, ORAGWU, ESQ, while the 2nd Respondent’s brief of argument filed on 11th December, 2020 was settled by REMI COKER, ESQ.

The Appellant formulated the following sole for the determination of this appeal at paragraph 3.1.1 of its amended brief of argument:
“Whether having regard to the facts and circumstances of this case the Federal High Court did not err in law when it held that it had no jurisdiction to entertain Appellant’s Originating Application dated 28th February 2011 as a result of the failure of the Appellant to serve a pre-action notice on the 1st Respondent before commencing the action?”

This issue was adopted by both Respondents, although the 2nd Respondent sought to submit two further issues for determination. I shall address the implication of the further issues sought to be submitted by the 2nd Respondent later in this judgment.

ARGUMENTS AND SUBMISSIONS OF THE APPELLANT
Arguing the sole issue, learned counsel submitted that the trial Court erred in law as a result of its failure to properly interpret Section 289 of the Investments and Securities Act, 2007 (ISA) and its failure to appreciate and follow the reasoning of this Court in EZENWA V. BESTWAY ELECT. MANUF. CO. LTD (1999) 8 NWLR (PT. 613) 61 to the effect that the requirement to serve a pre-action notice before initiating an action should not be used to thwart an otherwise meritorious application for judicial review on grounds of mere technicalities. It was submitted that Section 289 of ISA does not contemplate or provide for the issuance of a pre-action notice as a precondition to the commencement of certiorari or judicial review proceedings in the Federal High Court. That upon reading Section 289 as a whole, it is obvious that the obligation it imposes on an aggrieved person to give 14 days pre-action notice is only in respect of institution of an action or an appeal before the Investments and Securities Tribunal and does not purport to apply in respect of a judicial review before the Federal High Court.

Counsel further submitted that the learned trial Judge erred due to his failure to recognize that certiorari or judicial review proceedings have peculiar characteristics that take them outside the purview of the jurisdiction conferred on the Investments and Securities Tribunal (IST) and thus outside the provisions of Section 298 of the Act. That the IST is an inferior Tribunal, and not a superior Court of record listed in the Constitution of the Federal Republic of Nigeria, 1999 (as amended), hence, it has no jurisdiction or power to issue an order of certiorari and the jurisdiction conferred upon it by Section 284 of the ISA cannot oust the jurisdiction of a High Court to issue an order of certiorari. It was further submitted that the jurisdiction of the High Court to grant prerogative orders cannot be taken away except by the clear words of a statute. That the jurisdiction conferred on the tribunal is totally distinct from the constitutional power of judicial review expressly reserved to the High Court as a superior Court of record over inferior Tribunals or administrative bodies. Reference was made to R V. NORTHUMBERLAND COMPENSATION APPEAL TRIBUNAL, EX PARTE SHAW (1952) 1 AER 122; HEAD OF THE FEDERAL MILITARY GOVERNMENT V. THE PUBLIC SERVICE COMMISSIONER OF MID WESTERN STATE & ANOR (1974) ANLR 784; GOVERNOR OF OYO STATE & ORS V. FOLAYAN (1995) 8 NWLR (PT. 413) 292; AFRICAN CONTINENTAL BANK PLC. V. NWAIGWE & ORS (2011) 7 NWLR (PT. 1246) 380.

Counsel conceded that it is generally the law that any action commenced without issuing a pre-action notice where it is statutorily required is incompetent. He cited the case of UMUKORO V. N. P. A. (1997) 4 NWLR (PT. 502) 656. He however submitted that this Court in EZENWA V. BESTWAY ELECT. MANUF. CO. LTD (supra) recognized that this requirement could be utilized to the detriment of citizens by administrative bodies such as the 1st Respondent herein and therefore held that an Applicant in certiorari proceedings does not have to comply with the requirement of issuing a pre-action notice in such instances. He submitted that the issuance of the 14 days’ pre-action notice by the Appellant herein would have been used as a technicality to thwart its constitutional right to seek protection against adverse regulatory action as the 1st Respondent threatened to impose severe sanctions on it if the decision handed down by the 1st Respondent was not complied with within two weeks. He noted that the case of OJO & ANOR V. NATIONAL PENSION COMMISSION & ANOR (2013) LPELR–20812 (CA) in which the decision in Ezenwa’s case was criticized is distinguishable from the facts of the present appeal, as there were no peculiar circumstances in that case that would have made enforcement of the pre-action notice requirement tantamount to a denial of justice, as in this appeal and that the language of the pre-action notice provision in that case was indisputably wide and all encompassing.

Counsel finally urged this Court to allow the appeal, set aside the ruling of the trial Court and remit the case to the trial Court.

ARGUMENTS AND SUBMISSIONS OF THE 1ST RESPONDENT
On the sole issue, counsel submitted that failure to issue a pre-action notice is not a mere technicality as submitted by the Appellant’s counsel. He placed reliance on OJO & ANOR V. NATIONAL PENSION COMMISSION & ANOR (supra). It was noted that the case of EZENWA V. BESTWAY ELECT. MANUF. CO. LTD (supra) being relied on by the Appellant is not only inconsistent with decisions of the Supreme Court, but was also criticized in OJO & ANOR V. NATIONAL PENSION COMMISSION & ANOR (supra).

He further submitted that the issues of whether pre-action notice as a condition precedent should be recognized in actions instituted against the decisions of administrative bodies and the consequence of refusal to effect such service have been settled in the cases of OJO & ANOR V. NATIONAL PENSION COMMISSION & ANOR (supra); A.G. KWARA STATE V. ADEYEMO (2017) 1 NWLR (PT. 1546) 210; MAITUMBI V. BARAYA (2017) 2 NWLR (PT. 1550) 347; ADELUSOLA V. AKINDE (2004) 12 NWLR (PT. 887) 293.

Learned counsel submitted further that a combined reading of Section 13, 34 and 289 of ISA buttresses the position of the 1st Respondent to the effect that the intention of the legislators was to ensure that the provision of pre-action notice is applicable to certiorari proceedings. That by Section 289, a party may challenge any decision of the 1st Respondent whether administrative or not provided that 14 days’ notice in writing is issued and if same has not been issued, the affected party cannot activate the jurisdiction of the Court. Reference was made to SHOMOLU L.G.C V. AGBEDE (1996) 4 NWLR (PT. 441) 174. He also submitted that the only reasonable interpretation of Section 289 of ISA is that its provisions are mandatory and failure to comply with same would rob any Court of jurisdiction to entertain the claim.

Counsel urged this Court to resolve this issue in favour of the 1st Respondent and dismiss the appeal with costs for lacking in merit.

APPELLANT’S REPLY BRIEF TO THE 1ST RESPONDENT’S BRIEF OF ARGUMENT
In response to the 1st Respondent’s submission that giving pre-action notice is mandatory and not inconsistent with provisions of the Constitution, learned counsel submitted that there are instances where the Supreme Court has held that the requirement of pre-action notice may in certain instances not meet the justice of the case and is not mandatory. He referred to the case of WARRI REFINING & PETROCHEMICAL CO. LTD V. GECMEP NIG LTD (2020) LPELR–49380 (SC). He further submitted that the cases of A.G. KWARA STATE V. ADEYEMO (supra); SHOMOLU L.G.C V. AGBEDE (supra) are distinct from this case as there was no urgency which would have caused the res to be destroyed in those cases.

2ND RESPONDENT’S ARGUMENTS AND SUBMISSIONS
Counsel for the 2nd Respondent adopted the sole issue distilled by the Appellant and sought to raise two additional issues for determination, to wit:
i. “Whether the Federal High Court is vested with jurisdiction to entertain the action in the first place, having regard to the subject matter jurisdiction of the Court.
ii. Whether in any event a remedy by judicial review is permissible where an appeal is provided for by statute or in a situation where a specific remedy is prescribed by statute.”

It should be noted that the Appellant only raised one ground of appeal in its Amended Notice of Appeal. The purpose of grounds of appeal is to bring out the complaints of the Appellant against the decision on appeal for the consideration of the appellate Court. It is the ground(s) of appeal that attack(s) the judgment appealed against. See SARAKI & ANOR V. KOTOYE (1992) LPELR–3016 (SC); REDEEMED CHRISTIAN CHURCH OF GOD (HAGIAZO PARISH) V. AKADIRI & ANOR (2019) LPELR–46780 (CA).

Thus, this Court and the Supreme Court frown upon formulating more issues for determination than grounds of appeal as each issue is supposed to have its base and source on one or more grounds of appeal. Thus, allowing the two additional issues sought to be raised by the 2nd Respondent would amount to endorsing the 2nd Respondent’s proliferation of issues for determination. See DUWIN PHARMACEUTICAL & MEDICAL CO. LTD V. BENEKS PHARMACEUTICAL & COSMETICS LTD & ORS (2008) LPELR–974 (SC); BILLE V. STATE (2016) LPELR–40832 (SC); OKPONIPERE V. STATE (2013) LPELR–19931 (SC).

Furthermore, the role of a Respondent in an appeal is well settled – it is to defend the judgment appealed against. However, where a Respondent is not satisfied with certain findings made in the judgment, he has a duty to file a cross-appeal. If this is done, a Respondent can validly challenge the findings of a lower Court. Also, a Respondent who wishes that the decision appealed against be affirmed on grounds other than those relied on by a lower Court ought to file a Respondent’s notice. See PDP V. ORANEZI & ORS (2017) LPELR–43471 (SC); ADEFULU & ORS V. OYESILE & ORS (1989) LPELR–91 (SC); CAMEROON AIRLINES V. OTUTUIZU (2011) LPELR–827 (SC); IN RE: NDIC V. ROSABOL (NIG) LTD & ORS (2017) LPELR–41925 (CA).

Premised on the foregoing, the two additional issues sought to be raised by the 2nd Respondent cannot be countenanced, notwithstanding that they are jurisdictional issues because even constitutional issues cannot be raised arbitrarily, they need limbs to stand on by being competently raised in an appeal or a cross-appeal. Consequently, the submissions of the 2nd Respondent on the two additional issues together with the response of the Appellant thereto in its reply brief to the 2nd Respondent’s brief are hereby discountenanced.

The brief submissions of the 2nd Respondent on the sole issue for determination are in tandem with the 1st Respondent’s submissions and reproducing them will serve no useful purpose.

Similarly, the submissions of the Appellant in its reply brief to the 2nd Respondent’s brief of argument are identical to the submissions in its reply brief to the 1st Respondent’s brief of argument and there is no need to reproduce same.

RESOLUTION
Having perused the record of appeal compiled and transmitted to this Court, the briefs of argument filed by counsel for the parties representing the positions of the parties in this appeal, as well as the issues formulated for determination by the counsel for the parties, I am of the view that the sole issue formulated by the Appellant and adopted by the Respondents is fitting for the determination the instant appeal. I therefore adopt the issue for the determination of this appeal.

From decision of the trial Court and the briefs of argument filed by the counsel for the parties, it is beyond doubt that this appeal falls squarely on the requirement of service of pre-action notice and the applicability of the requirement to the Appellant’s suit before the trial Court. Pre-action notice is usually donated by statute, agreement or contract as the case may be. See NTIERO V. N.P.A. (2008) 10 NWLR (PT. 1094) 129. In the present appeal, the vexed pre-action notice requirement is as contained in Section 289 of the Investments and Securities Act, 2007 (ISA). In other words, this appeal turns squarely on the interpretation of Section 289 of ISA and its applicability or otherwise to the Appellant’s suit before the trial Court.

The purpose and importance of pre-action and compliance therewith has been stated and restated in several decisions of our appellate Courts. The purpose of service of a pre-action notice is to give adequate notice to the statutory body on which it is required to be served in order to decide whether to compromise the Plaintiff’s claims or to contest it in Court. See ENOIDEM & ORS V. UMOH (2018) LPELR–46155 (CA); NNPC V. TIJANI (2006) LPELR–7698 (CA).

At this point, it would be helpful to reproduce Section 289 of ISA.

The Section provides thus:
“(1) 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: Provided that the aggrieved person shall give to the Commission 14 days’ notice in writing of his intention to institute an action or appeal against its decision.
(2) An appeal under this part of this Act shall be filed within a period of thirty days from the date on which a copy of the order which is being appealed against is made, or deemed to have been made by the Commission and it shall be in such form and be accompanied by such fees as may be prescribed: Provided that the Tribunal may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for the delay.
(3) On receipt of an appeal under Subsection (2) of this Section the Tribunal may, after giving the parties an opportunity of being heard, make such orders thereon as it deems fit, confirming, modifying or setting aside the order appealed against.
(4) The Tribunal shall cause a copy of every order so made to be forwarded to the parties to the appeal and to the Commission.
(5) The Tribunal, shall in the exercise of its powers under this Act, conduct its proceedings in such manners as to avoid undue delays and shall dispose of any matter before it finally within three months from the date of the commencement of the hearing of the substantive action.”
It is a cardinal rule of statutory interpretation that whenever a Court is faced with the interpretation of statutory provisions, the statute must be read as a whole, not in isolation in order to ascertain the true meaning of the provisions of the enactment. See AKPAMGBO-OKADIGBO & ORS V. CHIDI & ORS (2015) LPELR–24564 (SC); NOBIS-ELENDU V. INEC & ORS (2015) LPELR–25127 (SC); MOBIL OIL (NIG) PLC V. IAL 36 INC (2000) LPELR–1883 (SC). Therefore, in seeking to interpret the provisions of the aforesaid Section 289, I shall consider them together.
Subsection (1) of Section 289 provides thus: “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: Provided that the aggrieved person shall give to the Commission 14 days notice in writing of his intention to institute an action or appeal against its decision.” (Emphasis mine). From the underlined portion of the subsection, it is obvious that “an action” refers to action taken out before the Investments and Securities Tribunal (IST). Thus, the requirement of 14 days’ pre-action in the proviso to the subsection before institution of an action refers to an action taken out before the IST. The purport of “appeal” as used in the subsection will become clearer as I interpret the subsequent subsections.
Subsection 2 provides as follows: An appeal under this part of this Act shall be filed within a period of thirty days from the date on which a copy of the order which is being appealed against is made, or deemed to have been made by the Commission and it shall be in such form and be accompanied by such fees as may be prescribed: Provided that the Tribunal may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for the delay. (Emphasis mine). Again, the underlined portion of the subsection makes it abundantly clear that the “appeal” used therein refers to appeals instituted against any decision of the Securities and Exchange Commission (SEC) lodged before the IST.
Subsections (3), (4) and (5) of Section 289 go thus:
“(3) On receipt of an appeal under Subsection (2) of this section the Tribunal may, after giving the parties an opportunity of being heard, make such orders thereon as it deems fit, confirming, modifying or setting aside the order appealed against.
(4) The Tribunal shall cause a copy of every order so made to be forwarded to the parties to the appeal and to the Commission.
(5) The Tribunal, shall in the exercise of its powers under this Act, conduct its proceedings in such manners as to avoid undue delays and shall dispose of any matter before it finally within three months from the date of the commencement of the hearing of the substantive action.” (Emphasis mine)
It is trite that where words used in an enactment are plain, lucid and unambiguous, they must be ascribed their natural and ordinary meaning, except where doing so will lead to absurdity or inconsistency. See the cases of GANA V. SDP & ORS (2019) LPELR–47153 (SC); PDP V. INEC & ORS (2014) LPELR–23808 (SC); DANGANA & ANOR V. USMAN & ORS (2012) LPELR–25012 (SC). The words of Section 289 analyzed above are very clear and unambiguous, hence, I interpreted them in their ordinary meanings.
It appears abundantly clear to me from the subsections excerpted supra that the requirement of service of pre-action notice on the 1st Respondent applies only to “an action” or “appeal” instituted before the IST. Therefore, the requirement of service of pre-action notice is inapplicable to the suit instituted by the Appellant being an application for judicial review of the decision of SEC before the Federal High Court.

Flowing from the heels of the foregoing, the sole issue for determination is resolved in favour of the Appellant and against the Respondents. The appeal is hereby allowed and the ruling of the trial Court delivered on 15th December, 2015 by Hon. Justice C.J. Aneke is hereby set aside. The case file is remitted to the Federal High Court, Lagos Judicial Division for reassignment to another Judge of that Court other than C.J. Aneke, J. Parties shall bear their respective costs.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse in draft, the erudite leading judgment delivered by my learned brother, Abubakar Sadiq Umar, JCA. I endorse, in toto, the reasoning and conclusion in it. l, too, allow the appeal in the manner decreed in the leading judgment. I abide by the consequential orders decreed therein.

ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I have read in advance, the draft copy of the lead judgment just delivered by my learned brother, ABUBAKAR SADIQ UMAR, JCA.

Based on the comprehensive analysis contained in the judgment, I entirely agree with the reasoning contained in the judgment as well as the conclusions arrived at to allow the appeal. I too agree that the case be remitted to the Federal High Court Lagos Judicial Division for re-assignment. I abide by the order made as to costs.