ISSL & ORS v. NSDC (2020)

ISSL & ORS v. NSDC

(2020)LCN/14186(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, May 21, 2020

CA/A/500/2018

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

INTERNATIONAL STANDARD SECURITIES LTD (ISSL) 2. LERE M. AYANWOLA 3. THOMAS O. SIMISOLA 4. DR. DAIYEOLA OGUNNIYI 5. SIWOKU HELEN OLUFUNMILAYO APPELANT(S)

And

NIGER STATE DEVELOPMENT COMPANY LIMITED (NSDC) RESPONDENT(S)

RATIO

WHETHER OR NOT A PARTY IS TO JOIN ALL PERSONS WHOSE INTEREST IS AT STAKE IN THE ACTION IN ANY DECLARATORY RELIEF SOUGHT BY A PARTY

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. PER NIMPAR, J.C.A.

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

The fundamental issue is the challenge to the jurisdiction of the Tribunal. Jurisdiction as we all know is fundamental and a sine qua non to adjudication, see GARBA V MOHAMMED & ORS (2016) LPELR-40612(SC) which held as follows:
“There is no doubt that the issue of jurisdiction is fundamental to adjudication. It is the blood that gives life to the Court and enables it exercise its powers as conferred by the law establishing it. Without jurisdiction the proceedings and any decision reached therein is null and void ab initio. See: Kalio v. Daniel (1975) 2 SC 15; AG Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552 @ 567; Oloriode v. Oyebi (1984) 1 SCNLR 390; Madukolu v. Nkemdilim (1962) 2 SCNLR 341. This underscores the importance of the issue under consideration. It is especially important in a pre-election or post-election matter where not only the litigants but also the electorate are affected by the outcome of the dispute and it is desirable that the case be determined with dispatch.” Per KEKERE-EKUN, J.S.C. PER NIMPAR, J.C.A.

INTERPRETATION GIVEN TO THE WORD “MAY ” BY THE COURTS

From the interpretation given to the word ‘May’ by the Courts, it is considered permissive generally even though there are times that it could suggest compulsion but that must be read holistically in the context of the statutory provision wherein the word is used. I have carefully considered Section 310(1) of the Investment and Securities Act and my take is that the word ‘may’ as used therein connotes permissiveness and not in mandatory sense. The Supreme Court in the case of EDEWOR V UWEGBA & ORS (1987) LPLER-1009(SC) in an expository manner gave the background to the use of the word ‘May’ in the two senses as follows:
“Generally the word ‘may’ always means ‘may’. It has long been settled that may is a permissive or enabling expression. In Messy v. Council of the Municipality of Yass (1922) 22 S.R.N.S.W. 494 per Cullen, C.J at pp.497, 498 it was held that the use of the word ‘may’ prima facie conveys that the authority which has power to do such an act has an option either to do it or not to do it. See also Cotton, L.J. in Re Daker, Michell v. Baker (1800) 44 CH.D 282. But it has been conceded that the word may acquire a mandatory meaning from the context in which it is used. See Johnson’s Tyre Foundary Pty Ltd. v. Shire of Maffra (1949) A.L.R. 88. The word may also acquires a mandatory meaning from the circumstances in which it is used. Most of the cases in which the word ‘may’ has a mandatory meaning relate to cases in which they are used in penal statutes conferring powers to Courts. In Re Baker (Supra) Cotton L.J. said – “I think great misconception is caused by saying that in some cases “may” means must. It never can mean (must) so long as the English language retains its meaning; but it gives a power, and then it may be a question in what cases where a Judge has a power given him by the word ‘may’, it becomes his duty to exercise it”. In Over v. Felton (1966) A.LR. 1088 Jenkyn, J. said that “it lies upon those who contend that an obligation exists to exercise that power to show in the circumstances of the case something which according to the above principles, creates that obligation.”
From the above, May can only have mandatory meaning in penal statutes conferring powers on Courts and not compulsion in administrative discretion. PER NIMPAR, J.C.A.

THE PRINCIPLE OF STARE DECISIS

The facts in OKOROCHA V UBA (supra) are different from the facts here, and in applying the principle of stare decisis, the principle of application was restated in the case of INTEGRATED REALTY LTD V ODOFIN & ORS (2017) LPELR-48358(SC) which held thus: “It is settled that where from the facts of a case, the principle of law stated by this Court is applicable, it is constitutional, unlawful and violation of the principle of stare decisis for a subordinate Court to make rules or conditions for the application of that principle of law. It is settled that the principles of stare decisis only has meaning when the ratio or dictum of a case is read along with facts of the case – see Chief of Air Staff v. Iyen (2005) 6 NWLR (Pt. 922) 496 SC. And Amaechi v INEC (2008) 5 NWLR (Pt. 1080) 227 at 379/80, wherein this Court, per Onnoghen, JSC (as he then was), explained – The application of the principles of stare decisis or judicial precedent does not involve an exercise of judicial discretion. It is what must be done; mandatory. The doctrine is based on the relevant likeness of or between the cases if there is no likeness between the two, it is an idle exercise to consider whether the previous one should be followed or departed from. It is settled law that a previous decision is not to be departed from or even followed, where the facts or the law applicable in the previous case are distinguishable from those in the latter case. See also Adetoun Oladeji (Nig.) Ltd. v. Nigerian Breweries (2007) 5 NWLR (Pt. 1027) 415, where Tobi, JSC, further elucidated as follows-
“Stare decisis, which means to abide by or adhere to decided cases, as a policy of Courts to stand on precedent, is based on a certain state of facts, which are substantially the same, and here the word is substantially. This means that the facts that give rise to the principle of stare decisis are the material facts, devoid of or without unimportant details. (It) also means that the facts need not be an all fours in the sense of exactness or exactitude. There can hardly be two cases where the facts are exactly the same, and the doctrine of stare decisis does not say that the facts must be exactly the same. And so there could be inarticulate differences, which will not necessarily be a poison in or to the application of stare decisis. One major criterion in the determination of the matter is that the facts of the previous case are major, substantial and material to the current case begging for the application of the previous case”. In other words, the facts that give rise to the principle of stare decisis are the material facts, devoid of or without unimportant details. So, the facts of a previous case must be major, substantial and material to the current case begging for the application of the previous case – See Adetoun Oladeji (Nig.) Ltd. v. Nigerian Breweries Plc. (supra). Per AUGIE, J.S.C. PER NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the decision of the Investments and Securities Tribunal (hereinafter referred to as the Tribunal) delivered on the 27th April, 2018 (Corom: Jude I. Udunni – Presiding Chairman; Dr. Abubakar A. Ahmad – Hon. Member and Albert Otesile – Hon. Member). The Tribunal granted a part of the claim with interest. Dissatisfied with the decision the Appellants who were defendants at the Tribunal filed a Notice of Appeal on the 4th May, 2018 setting out 5 grounds of appeal.

The facts leading to the Appeal are amenable to brief summary. The Respondent appointed the 1st Appellant to manage its portfolio which was terminated by a letter asking the 1st Appellant to liquidate the investment and pay it into a Zenith Bank Account but the 1st Appellant failed to meet up with time lines. Several demands were made through the Respondent’s solicitor and when it was obvious that the 1st Appellant was not forthcoming, the Respondent complained to the Commission and after sometime initiated the action before the Tribunal and sought the following reliefs:
i. A Declaration that the

Claimant is entitled to five Hundred and Seventy-Four million Naira (N574,000,000,00) as at 31st December 2014 being the total value of its portfolio with the 1st defendant as at 31st December, 2014.
ii. A Declaration that the 1st, 2nd, 3rd, 4th, 5th, 6th, and 7th defendants are jointly and severally liable to pay the sum of Five Hundred and Seventy-Four Million Naira (N574, 000,000.00) due as at 31st December, 2014 to the Claimant and interest at 26% monthly thereafter till final liquidation.
iii. An Order compelling interest the 1st-7th Defendants to jointly and severally pay the sum of Five Hundred and Seventy Four Million Naira (N574,000,000,00) and all outstanding interest in addition to 26% monthly interest from date of judgment till final liquidation.
iv. Award of Twenty Million (N20,000,000.00) being Solicitor’s and incidental expenses against 1st, 2nd, 3rd, 4th, 5th, 6th and 7th Defendant jointly and severally.

The claim went to full trial and after which the Tribunal entered judgment in part in favour of the Respondent and thus the Appeal.

The Appellants’ Brief settled by NWACHUKWU OBINNA ESQ., is dated 20th day of

June, 2018 and filed on the 22/6/2018; it donated 3 issues for determination as follows:
a. Whether the Respondent’s/claimant’s sole witness, Mr. Adamu Garba Kuta gave a credible evidence in the face of his conflicting and contradictory signatures on Exhibit D2 and his witness statement on oath, as deponent and in the light of his evidence on oath, that he has only one signature. (Distilled from Ground one).
b. Whether the Honourable Tribunal has requisite jurisdiction on a matter undergoing investigation by Securities and Exchange Commission (SEC), in the light of Section 284(1) (a) of the Investment and Securities Act, 2007 (Distilled from Ground Two).
c. Whether the Honourable Tribunal is not bound by the Court of Appeal in OKOROCHA V UBA (2011) 1 NWLR (PT. 1228) 348.

The Respondent’s Brief was settled by J.G. TAIDI, ESQ., it is dated 1st November, 2018 and filed on the 2/11/2018 but deemed on the 11/3/2020. It formulated 2 issues for determination thus:
i. Whether the Tribunal has requisite jurisdiction to hear the claims submitted to it by the Respondent. (Grounds 2 and 3)
ii. Considering the circumstances of

the case, whether the Tribunal was right in granting the reliefs sought by the Respondent (Ground 1).

After a careful review of the Notice of Appeal, Record of Appeal and the Briefs of parties, I am inclined to adopt the issues donated by the Appellant which is actually the flipside of the Respondent’s issues for determination. Issue three is actually part of issue two because of they are interwoven. This will effectually resolve all areas of complaint put forward by the Appellants and I shall do so seamlessly because of the interwoven nature of the issues.

APPELLANTS SUBMISSIONS
The Appellants on issue one submitted that there was no evidence upon which the reliefs can be granted due to contradictory evidence presented by the sole witness of the claimant and that an unsigned document is a worthless document, citing OMEGA BANK (NIG) PLC V O.B.C. LTD (2005) 8 NWLR (Pt. 928) 538 and A. G. ABIA STATE V AGHARANYA (1999) 6 NWLR (Pt. 607) 362. They referred to the only witness for the Respondent and highlighted aspects they considered impeachable, one of which is the issue of the signature of the sole witness on his statement on oath and the one

on EXHIBIT D.2 – Attendance of meeting of 2/2/2015 which the Appellants suggest is a different signature. They alleged that the Tribunal denied Appellants an opportunity to ascertain the witness’s signature as provided by Section 101(1) of the Evidence Act. The Appellants referred this Honourable Court to AZUBUIKE V DIAMOND BANK PLC (2014) 2 NWLR (Pt. 1393) 116; JUKOK INT’L LTD V DIAMOND BANK PLC (2016) NWLR (Pt. 1507) 55 and TOMTEC (NIG) LTD V F.H.A. (2009) 18 NWLR (Pt. 1173) 358. They argued that the evidence of the sole witness that he initialed the minutes of meeting does not confirm to what is known as initialing a document, furthermore, that initialing is also a signature once it is done with the purpose of authenticating a document, citing Section 83(4) of the Evidence Act. On what amounts to a signature, the Appellants relied on SLB CONSORTIUM LTD V NNPC (2011) 9 NWLR (Pt. 1252) 315 to include a contraption of the author. Furthermore, they argued that signature could be one’s name as held in the case of WILLIAMS V ADOLD/STAMM INT’L (NIG) LTD (2017) 6 NWLR (Pt. 1560) 1. In this case the witness stated that he had only one

signature. The Appellants concluded that the witness was not the maker of the witness statement and therefore, he cannot be said to have given evidence in the case, relying on the description of credible evidence as stated in the case of OLUYEDE V ACCESS BANK PLC (2015) 17 NWLR (Pt. 1489) 596. Appellants further relied on OMISORE V AREGBESOLA (2015) 15 NWLR (Pt. 1482) 305 and AKOMOLAFE V GUARDIAN PRESS LTD (2010) 3 NWLR (Pt. 1181) 338 to urge the Court to find for the Appellants under issue one.

On issue two issue, the Appellants contended that the Respondent admitted that it reported the dispute to the Securities and Exchange Commission (SEC) and the Commission initiated investigation, however the Respondent did not wait for the outcome before filing the claim before the Tribunal and this is against the grain of the law as provided in Section 310(1) of the Investment and Securities Act, 2007. They argued that the Respondent, having reported the dispute to the commission is bound to await the outcome before approaching the Tribunal, relying on OLAWEPO V S.E.C. (2011) 16 NWLR (Pt. 1272) 122; ITSUELI V S.E.C. (2012) 2 NWLR (Pt. 1284) 329 and OJORA V AGIP (NIG) PLC

(2014) 1 NWLR (Pt. 1387) 150 to submit that the condition precedent was not complied with and therefore the Tribunal lacked jurisdiction to determine the claim. They argued that the commission has disciplinary power over capital market operators under Section 13 of the Act, referred to OWENA BANK PLC V N.S.E. LTD (1997) 8 NWLR (Pt. 515) 1; ONI V ADMINISTRATIVE PROCEEDING COMM, SEC (2014) 13 NWLR (Pt. 1424) 334. The Appellants argued further that there is no conflict between the powers of the commission and the Tribunal as held in MEGAWEALTH LTD V S.E.C. (2017) 13 NWLR (Pt. 1583) 345 and therefore it smacks of double jeopardy for the Appellants to face the disciplinary powers of the commission and the punitive powers of the Tribunal and said it was forum shopping which was condemned in DIAMOND BANK PLC V OPARA (2018) 7 NWLR (Pt. 1617) 92. They urged the Court to find for the Appellants to find for them under issue two.

On issue three, the Appellants submitted that by Section 287(2) of the 1999 Constitution and the authority of EMELUWA V ONUIGWE (2011) 13 NWLR (PT. 1265) 449, the Tribunal is bound by the decision of the Court in ADO V STATE (2011)

15 NWLR (Pt. 1587) 65 on the doctrine of stare decisis. Also, the case of OSAKUE V F.C.E. ASABA (2010) 10 NWLR (Pt. 1201) 1. Appellants submitted that they drew the Tribunal’s attention to the decision in OKOROCHA V UBA (2011) 1 NWLR (Pt. 1228) 348 but the Tribunal neglected to apply the principles therein and Section 284 (1) (a) of the Investment and Securities Act. They submitted that the Tribunal lacked jurisdiction to determine the claim. On jurisdiction, they relied on A.G. FEDERATION V A.G. ANAMBRA STATE (2018) 6 NWLR (Pt. 1615) 314 to emphasize the importance of jurisdiction and effect of lack of jurisdiction.

Appellants submitted that the additional authority was shown to the Tribunal as reflected at pages 224-239 of the Record of Appeal and therefore Tribunal was wrong to ignore the authority being a judicial precedent as held in F.R.N. V NWOSU (2016) 17 NWLR (Pt. 1541) 226 and PATIL V FRN (2016) 8 NWLR (Pt. 1515) 483. They finally urge the Court to allow the Appeal.

RESPONDENT’S SUBMISSIONS
In arguing the Appeal, the Respondent commencing with issue one submitted that Section 284(1) of the Investment and Securities Act

provides for the jurisdiction of the Tribunal. On the contention that the Respondent did not exhaust precondition procedures before approaching the Tribunal, the Respondent argued that there was a complaint upon which the commission investigated and made on the spot finding. The Respondent added that there was no step after the initial findings by the commission and therefore the Respondent was right to approach the Tribunal and Section 310(1) was complied with, more so there is no standard or remedy named in the said section which must be complied before filing the claim. On the argument of the Appellant that only Appeals from the Administrative Proceedings Committee come to the Investment Tribunal, the Respondent disagreed and submitted that the Committee is not a creation of statute and does not have jurisdiction to determine claims related to investments. Furthermore, the committee is a discretionary creation of the Commission and not mandatory. Respondent submitted that it is the Commission that must determine an issue and not the committee and referred to other cases determined by the tribunal in situations where the Committee never sat and the

Commission never filed charges, relying on the case of ADESANOYE V ADEWOLE (2006) LPLER- 143(SC) to support the fact that failure to observe the provision of a statute will be against the party in default. The Respondent submitted that it waited for one month before filing the action instead of resorting to self-help and therefore, the respondent followed due process. Furthermore, the failure of the commission to act on its finding cannot be the fault of the Respondent.

On the decision in OKOROCHA V UBA (supra) relied upon by the Appellants, the Respondent submitted that the facts are not on all fours with the facts of this Appeal because in that case the party did not make a complaint to the Commission before filing the claim but in this case, the Respondent filed a complaint. The Respondent submitted that the authority is not relevant to this instant case.

On issue two, the Respondent, on alleged contradictory signatures submitted that it was not established and is not relevant to the claim therefore the Tribunal cannot be faulted. He referred to the nature of the claim, a liquidated claim which was not controverter, and relied on MAJA V SAMOURIS

(2002) 7 NWLR (Pt. 765) 78 for the definition of liquidated claim. The Respondent submitted that the Appellants never denied owing the judgment sum and when an averment is not denied, then it is deemed admitted. Furthermore, it submitted that only when issues are joined in the pleadings that the need for proof arises, citing OTTO V MABAMIJE (2004) 17 NWLR (Pt. 903) 489 and N.B.C. PLC V OLAREWAJU (2007) 5 NWLR (1027) 255. The Respondent referred to the statement of defence at pages 113-115 of the Record of Appeal to submit that the Appellants did not dispute the claim of Five Hundred and Seventy-Four Million Naira being the sum in the investment Portfolio. Arguing further, the Respondent observed that the Appellants did not call any witness and its pleadings are deemed abandoned, consequently, they have admitted the claim, referred to ALAO V KURE (2000) 9 NWLR (Pt. 672) 423 to conclude that the Appellant admitted the claim. The Respondent urged the Court to dismiss the Appeal.

In reply, the Appellants on Respondent’s issue one submitted that the Respondent’s brief is contradictory when it said the commission made a finding and then said the

commission refused to act thus giving the impression that the commission did not act on the complaint. They relied on OKPALA V OKPU (2003) 5 NWLR (Pt. 812) to submit that the aspect contradicted was not pleaded however, no party is allowed to contradict a statutory provision and relied on SHUGABA V UBN PLC (1999) 11 NWLR (PT 627) 459 on the fulfillment of a condition precedent and its failure vitiates the Court’s jurisdiction, citing ABUBAKAR V NASAMU (NO.2) (2012) 17 NWLR (Pt. 1330) 407; NNPC V FAMFA OIL LTD (2012) 17 NWLR (Pt. 13 28) 148. Furthermore, they submitted that a Court of law cannot read into a law what is not provided therein, citing N.I.W.A V S.P.D.C.N. LTD (2011) 6 NWLR (Pt. 1244) 618 and N.S.I.T.F. M. B. V KLIFCO NIG LTD( 2010) 13 NWLR (Pt. 1211) 307 to submit that where a law prescribes a method for the performance of an act , no other method is allowed and therefore the Tribunal did not have jurisdiction to determine the matter as decided in the case of NDUUL V WAYO (2018) 16 NWLR (Pt. 1646) 548.

On the distinction with regards the authority of OKOROCHA V UBA (supra), the Appellants submitted that the distinction is without a

difference because the decision has been affirmed by the apex Court in OKOROCHA V UBA (2018) 17 NWLR (Pt. 1649). The Appellants argued that the Respondent did not show the decision made by the Commission before they filed their claim in compliance with Section 284(1) (a) of the Investment & Securities Act. They urged the Court to affirm the sanctity of the said provision.

On issue two, the Appellants contended that the Respondent did not deny the contradiction in signature of the sole witness and that a claimant must prove the claim for declaratory reliefs because it cannot be granted even on admission, citing OYEWUSI V OLAGBAMI (2018) 14 NWLR (Pt. 1639) 297.

On issues of credibility of a witness, Appellants submitted that evidence to contradict is usually extracted when such a witness is in the witness box, relied on OGU V M.T. & M.C. S.LTD (2011) 8 NWLR (Pt. 1249) 345 and IPINLAIYE II V OLUKOTUN (1996) 6 NWLR (Pt. 453) 148 that a document used to challenge a witness is admissible without its being covered by the pleadings. Appellants submitted that the document (Exh. D2) used to challenge the witness was pleaded by the Respondent and the

issue of signature showed that it is a forgery on the witness’ statement on oath and the Court was wrong to find that forgery was not pleaded. Furthermore, Appellants relied on Order 5 Rule 4(1) (3) of the Investment Tribunal, to say a witness must sign his statement and when the signature is shown not to be his own, which means he did not make a statement as held in the case of ARIJE V ARIJE (2018) 16 NWLR (Pt. 1644) 67. They went to say that the trial Court has the duty to evaluate evidence but where it is perverse then the appellate Court can re-assess and evaluate the evidence in order to do justice. They urged the Court to pronounce on the vexed issue and follow the decision in IKPEKPE V W. R. & P. CO. LTD (2018) 17 NWLR (Pt. 1648) 280. They urged the Court to allow the Appeal.

RESOLUTION OF THE APPEAL
The Appellants raised some jurisdictional issues in arguing issues distilled for determination. The question is also primarily linked to the application of the Supreme Court’s decision in OKOROCHA V UBA (supra) which held that the Tribunal would be divested of jurisdiction without a decision from the Security and Exchange

Commission. The Appellants stoutly sought to invoke the principle of stare decisis. The question whether there must be a decision/determination on a complaint made to the Securities and Exchange Commission for the Investment and Securities Tribunal to have jurisdiction over a matter was answered by the apex Court in the case of OKOROCHA V UBA (supra) 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. The two issues encapsulated in the 1st to 4th Respondent’s brief, which also covered all the issues raised in the 5th Respondent’s Brief of argument, are hereby resolved in favour of all the respondents and against the appellant herein.” Per OKORO, J.S.C.
The fundamental issue is the challenge to the jurisdiction of the Tribunal. Jurisdiction as we all know is fundamental and a sine qua non to adjudication, see GARBA V MOHAMMED & ORS (2016) LPELR-40612(SC) which held as follows:
“There is no doubt that the issue of jurisdiction is fundamental to adjudication. It is the blood that gives life to the Court and enables it exercise its powers as conferred by the law establishing it. Without jurisdiction the proceedings and any decision reached therein is null and void ab initio.

See: Kalio v. Daniel (1975) 2 SC 15; AG Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552 @ 567; Oloriode v. Oyebi (1984) 1 SCNLR 390; Madukolu v. Nkemdilim (1962) 2 SCNLR 341. This underscores the importance of the issue under consideration. It is especially important in a pre-election or post-election matter where not only the litigants but also the electorate are affected by the outcome of the dispute and it is desirable that the case be determined with dispatch.” Per KEKERE-EKUN, J.S.C.
Therefore, jurisdiction must exist present for any decision to stand, the case of the Appellant is that there was no decision or cause of action to warrant the trial Tribunal exercising jurisdiction over the parties. The Respondent in this case made a complaint to the Commission; see Exhibit C1 and C2 dated 5th November, 2014 and 15th January, 2015 respectively. The evidence before the Tribunal is that the Commission carried out on the spot investigation and assessment and found only a paltry sum in the account of the Appellant while the complaint is the withholding of the sum of over Five Hundred Million Naira by the Appellants and all efforts at getting the 1st

Appellant to pay up failed. The originating process was taken out on the 15th May, 2015. Furthermore, evidence before the Court showed that at the meeting held on the 16th April, 2015, report of the on the spot check on the Appellants showed a bank balance of Fifty One Thousand Four Hundred and Forty Seven Naira (N51, 447.00) and shares worth Sixty Three Thousand Naira Only (N63,000.00). The Commission was sued as the 8th defendant at the Tribunal and did not show by evidence that it responded to the two letters of complaint before the claim was initiated. Fundamentally, the only step taken by the 8th Respondent was the on the spot check. Once, again, should the Respondent wait when its investment of Five Hundred and Seventy Four Million Naira (N574, 000,000.00) has gone down the drain? This is supported by the different exhibits tendered before the Tribunal which were not denied and all demands for repayment was not attended to by the Appellants. The 8th Defendant before Tribunal did not show any sign that it was interested in setting up the Administrative Proceedings Committee to investigate and I do not agree that the Commission must set up the

Administrative Proceedings Committee in all cases, furthermore, no statutory provision make that a condition precedent. Section 310(1) provides as follows:
“The commission may appoint one or more committees to carry out on its behalf such of its functions as the Commission may determine.”
From the interpretation given to the word ‘May’ by the Courts, it is considered permissive generally even though there are times that it could suggest compulsion but that must be read holistically in the context of the statutory provision wherein the word is used. I have carefully considered Section 310(1) of the Investment and Securities Act and my take is that the word ‘may’ as used therein connotes permissiveness and not in mandatory sense. The Supreme Court in the case of EDEWOR V UWEGBA & ORS (1987) LPLER-1009(SC) in an expository manner gave the background to the use of the word ‘May’ in the two senses as follows:
“Generally the word ‘may’ always means ‘may’. It has long been settled that may is a permissive or enabling expression. In Messy v. Council of the Municipality of Yass (1922) 22 S.R.N.S.W. 494

per Cullen, C.J at pp.497, 498 it was held that the use of the word ‘may’ prima facie conveys that the authority which has power to do such an act has an option either to do it or not to do it. See also Cotton, L.J. in Re Daker, Michell v. Baker (1800) 44 CH.D 282. But it has been conceded that the word may acquire a mandatory meaning from the context in which it is used. See Johnson’s Tyre Foundary Pty Ltd. v. Shire of Maffra (1949) A.L.R. 88. The word may also acquires a mandatory meaning from the circumstances in which it is used. Most of the cases in which the word ‘may’ has a mandatory meaning relate to cases in which they are used in penal statutes conferring powers to Courts. In Re Baker (Supra) Cotton L.J. said – “I think great misconception is caused by saying that in some cases “may” means must. It never can mean (must) so long as the English language retains its meaning; but it gives a power, and then it may be a question in what cases where a Judge has a power given him by the word ‘may’, it becomes his duty to exercise it”. In Over v. Felton (1966) A.LR. 1088 Jenkyn, J. said that “it lies upon those who contend that an obligation exists to

exercise that power to show in the circumstances of the case something which according to the above principles, creates that obligation.”
From the above, May can only have mandatory meaning in penal statutes conferring powers on Courts and not compulsion in administrative discretions.
If it were a precondition, the law would have named the Committees and prescribed duties which must be fulfilled before the tribunal can exercise jurisdiction over a claim. However, it was not so in this case. That being the case, the setting up of the Administrative Proceedings Committee is not a precondition to the exercise of jurisdiction in this case. Furthermore, the Act did not make the Tribunal an appellate tribunal of the Administrative Proceedings Committee and the Committee is not a creation of law.
I am of the view that the facts in this Appeal can be distinguished from the facts in OKOROCHA V UBA (SUPRA). In OKOROCHA V UBA (SUPRA) the Claimant did not complain to the Commission at all and turned round to sue the Commission. The question then arose as to the cause of action in view of the claim which was seeking an order to compel for the Commission in turn

compel the 1st-4th Respondent therein to issue him his share Certificate. In this case, there was a complaint to the Commission and after the on the spot investigation and discovery, the Commission went mute. The commission’s failure to proceed upon its discovery is enough to inure a cause of action. The apex Court in the case of ADESANOYE V ADEWOLE (supra) said failure to comply with statutory provision puts the blame on such a defaulting party, it held thus:
“Where a statute clearly provides for a particular act to be performed; failure to perform the act on the part of the party will not only be interpreted as a delinquent conduct but will be interpreted as not complying with the statutory provision. In such a situation, the consequences of non-compliance with the statutory provision follow notwithstanding that the statute did not specifically provide for a sanction. The Court can, by the invocation of its interpretative jurisdiction, come to the conclusion that failure to comply with the statutory provision is against the party in default.”
The argument of Appellants that the Commission did not perform its statutory duty and therefore the

tribunal had no jurisdiction is actually against their interest because the blame is squarely on the shoulders of the Commission and that cannot be reason to deny the Respondent its right to be heard when it filed a complaint and failure to do what the Act says is the failure of the Commission, the blame rest with the Commission as held in the decision above.
The Commission was not ignorant of the facts founding the claim. And, as contended by the Respondent, would an investor whose assets have been wasted wait indefinitely for the Commission to act? The time between the complaint and when the claim was filed was reasonable enough for a detailed investigation and decision. Furthermore, the holding by the apex Court in OKOROCHA V UBA (supra) said jurisdiction will be lacking when no complaint is made to the commission or a decision handed down by the Commission before initialing the claim. The facts in OKOROCHA V UBA (supra) are different from the facts here, and in applying the principle of stare decisis, the principle of application was restated in the case of INTEGRATED REALTY LTD V ODOFIN & ORS (2017) LPELR-48358(SC) which held thus:

“It is settled that where from the facts of a case, the principle of law stated by this Court is applicable, it is constitutional, unlawful and violation of the principle of stare decisis for a subordinate Court to make rules or conditions for the application of that principle of law. It is settled that the principles of stare decisis only has meaning when the ratio or dictum of a case is read along with facts of the case – see Chief of Air Staff v. Iyen (2005) 6 NWLR (Pt. 922) 496 SC. And Amaechi v INEC (2008) 5 NWLR (Pt. 1080) 227 at 379/80, wherein this Court, per Onnoghen, JSC (as he then was), explained – The application of the principles of stare decisis or judicial precedent does not involve an exercise of judicial discretion. It is what must be done; mandatory. The doctrine is based on the relevant likeness of or between the cases if there is no likeness between the two, it is an idle exercise to consider whether the previous one should be followed or departed from. It is settled law that a previous decision is not to be departed from or even followed, where the facts or the law applicable in the previous case are distinguishable from those in the latter

case. See also Adetoun Oladeji (Nig.) Ltd. v. Nigerian Breweries (2007) 5 NWLR (Pt. 1027) 415, where Tobi, JSC, further elucidated as follows-
“Stare decisis, which means to abide by or adhere to decided cases, as a policy of Courts to stand on precedent, is based on a certain state of facts, which are substantially the same, and here the word is substantially. This means that the facts that give rise to the principle of stare decisis are the material facts, devoid of or without unimportant details. (It) also means that the facts need not be an all fours in the sense of exactness or exactitude. There can hardly be two cases where the facts are exactly the same, and the doctrine of stare decisis does not say that the facts must be exactly the same. And so there could be inarticulate differences, which will not necessarily be a poison in or to the application of stare decisis. One major criterion in the determination of the matter is that the facts of the previous case are major, substantial and material to the current case begging for the application of the previous case”. In other words, the facts that give rise to the principle of stare decisis are the

material facts, devoid of or without unimportant details. So, the facts of a previous case must be major, substantial and material to the current case begging for the application of the previous case – See Adetoun Oladeji (Nig.) Ltd. v. Nigerian Breweries Plc. (supra). Per AUGIE, J.S.C.
Flowing from above, the facts begging for the application of the ratio decidendi in OKOROCHA V UBA PLC (supra) is the interpretation of Section 284(1)(a) of the Investment and Securities Act, it 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 any dispute involving:
(a) A decision or determination of the Commission in the operation and application of this Act, and in particular, relating to any dispute:
(i) Between capital market operators;
(ii) Between capital market operators and their clients;
(iii) Between an investor and a securities exchange or capital trade point or cleaning and settlement agency;
(iv) Between capital market operators and the commission.”
The contention is basically on the precondition

that the Commission must have made a decision upon which the claimant can latch on to file a claim. The Respondent made two formal complaints to the Commission as observed earlier, failure to act is weighty enough to inure a cause of action and the ratio in OKOROCHA V UBA (Supra) was based on the fact that the claimant did not make a report to the Commission and therefore there is nothing to allege against the Commission. In this case, there is an allegation against the Commission and clearly its failure to act or impress on the Appellants to refund the money due from the investment made through the Appellants. The Commission made on the spot investigated Respondent’s and the findings were clear. The doctrine of stare decisis is therefore not applicable in this situation because the facts are different.
That being the case, can the facts in both cases be said to be same so as to allow the application of the ratio in OKOROCHA V UBA? I don’t think so because even the apex Court introduced the making of a complaint to the Commission as a circumstance which can give rise to a cause of action and activate the jurisdiction of the Tribunal.

The Appellants also contended that before the tribunal can have jurisdiction, the Administrative Proceeding Committee of the commission must have handed down a decision but the Investment and Securities Act did not state that the commission must at all times set up an Administrative Proceeding Committee to investigate complaints. Furthermore, the cases of OLAWEPO V SEC (supra) and ITSUELI V SEC (supra) are not relevant to this Appeal and therefore inapplicable.
The complaint that the trial Court did not advert its mind to the decision in OKOROCHA V UBA made by the Appellants is justified. The tribunal was silent on whether the authority was relevant or not, that could create the impression that the Tribunal was not ready to be bound by the decision. It is better to distinguish the authority rather than ignore such a ratio from the apex Court. Indeed, all Courts below the Supreme Court are bound and must apply decisions of the Supreme Court where they apply as judicial precedent.
On jurisdiction, I find for the Respondent that the Court had jurisdiction to determine the claim.

Moving on, the next aspect to consider is the challenge to the evidence

of the sole witness’ of the Respondent. The submission that no evidence was presented in support of the claim was based on the ground that the Appellants raked up issues on the signature of the sole witness statement on oath and the initialing on Exhibit D2 to say there was no witness statement. The witness admitted he signed the witness statement and he merely initialed the minutes of meeting (Exhibit D2). He told the Tribunal below that the signature on the witness statement is his only signature but what is on Exhibit D2 is what he called an initialing. The tribunal below agreed with the witness. The question is whether a signature and initial are one and the same contraption that can identify a person as author of a document? A signature is defined at Page 1415 Black’s Law Dictionary, 8th Edition, as:
“A person’s name or mark, written by that person or at the person’s direction, it is also any name, mark or writing used with the intention of authenticating a document.”
The definition of signature relied on by the Appellants is lifted from and the case of SLB V CONSORTIUM (supra) which is strictly a pattern for

a legal practitioner on how Court processes should be signed by a legal practitioner. It therefore does not refer to the signature of a witness or the maker of a document executed in the normal course of daily endeavors. The tribunal below did not find that there was a dispute on the signature of the sole witness. The witness statement on oath was duly signed and acknowledge by witness. Fundamentally, a Court or Tribunal has the discretion to view signatures but it declined to allow the witness to sign a signature with which to compare, it held that the signature on the statement on oath is regular and admitted by the witness. Furthermore, the Tribunal held that the only witness initialed the minutes of meeting. Since the two are different, the same person can sign and initial differently and it was not shown otherwise in this case, the Court too cannot do otherwise. The need for comparison to be done by the Court or Tribunal refers to signatures and not signature against initialing, this is fundamentally so because the two are not necessarily the same, see Section 101(1) of the Evidence Act which was relied upon by the Appellants, it provides:

“In order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose.”
A Court of law faced with disputed signature has the power to compare the disputed signature with any signature admitted to be an undisputed or genuine signature. There was no comparison of any two signatures, that is a signature admitted by the witness and no other was made while he was in the witness box. There were no two signatures before the tribunal and therefore there is nothing the Court can do in that regard.
Reference to Section 83(4) of the Evidence Act 2011 is also not of any value to the Appellant, it says:
“For the purpose of this section, a statement in a document shall not be deemed to have made by a person unless the document or the material part of it was written,

made or produced by him with his own hand, or was signed or initialed by him or otherwise recognized by him in writing as own for the accuracy of which he is responsible.”
Flowing from above statutory provision, signature and initialing are separate and distinct contraptions a person can use to acknowledge a document as his own making. That was what happened in this Appeal. The case of TOMTEC NIG LTD V FHA (SUPRA) is not relevant because no signatures were compared by the tribunal in this case and you cannot compare signature to initialing, they are two separate forms of a person acknowledging a document and its content as his own making.
Furthermore, Appellants relied on ORDER 5 RULE 4(1) (3) of the Investment and securities Tribunal, to say a witness must sign his statement and when the signature is shown not to be his own, it means he did not make a statement. The signature on the witness statement on oath was not shown not to belong to the witness so the rule cannot apply in this circumstance. The Tribunal has discretion in the matter and this Court cannot question that exercise of discretion except if it is perverse. In this case, the

witness admitted the signature and initial and made an explanation which was accepted by the Tribunal. Having accepted the explanation and exercised its discretion judiciously, this Court lacks the power to reverse the tribunal’s findings in this regard.
The authorities cited by the Appellants to my mind are not relevant, particularly, in any case, one cannot say there was no signature on the statement adopted at the hearing, there is a signature and it was not shown that it did not belong to the witness, the witness owned up the documents. The question of credibility is assessed upon several other parameters over the entire evidence of the said witness and not on just a portion of it. Arising from above, issue 1 is resolved against the Appellant.

The Appellants also alleged forgery, without waste of time, forgery was alleged and relevant particulars for its proof as a criminal allegation was lacking. It is not relevant, moreso, the said witness owned up the signature, no other signature was proved. There was also the allegation of double jeopardy, however the Appellants failed to show that the Commission took any step against it as a

disciplinary measure. Even if it did, the facts of double jeopardy cannot be activated. The Appellants cannot run away from liability.

Flowing from the findings above, the Appeal lacks merit and is hereby dismissed. The judgment of the Investment & Securities Tribunal delivered on the 27th day of April, 2018 is hereby affirmed. There is no order as to cost.

STEPHEN JONAH ADAH, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, Yargata Byenchit Nimpar, JCA.

My learned brother has adequately dealt with the issues generated in this appeal. I am in agreement with the reasoning and the conclusion which I adopt as mine.
This appeal truly lacks merit. I therefore dismiss the appeal and I abide by the consequential order as made in the lead judgment.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Yargata Byenchit Nimpar, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Appearances:

N.A OBINNA ESQ. For Appellant(s)

J.G. TAIDI ESQ., with him, H. B. JODA ESQ. For Respondent(s