KEYSTONE BANK LTD v. EBUH & ORS (2021)

KEYSTONE BANK LTD v. EBUH & ORS

(2021)LCN/14934(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, January 29, 2021

CA/L/98/2019

RATIO

JURISDICTION: WHEN WILL A COURT BE SAID TO BE COMPETENT

The trite position of the law is that a Court is competent to assume Jurisdiction:-
(i) When it is properly constituted,
(ii) The subject matter of the actions is within the Court’s Jurisdiction.
(iii) There is no feature in the case which prevents the Court from exercising its jurisdiction
(iv) The action is initiated by due process of law and
(v) Any condition precedent to the exercise of the Court’s Jurisdiction has been fulfilled. Any defect in the competence is fatal to the jurisdiction.

See- MADUKOLU & OTHERS VS. NKEMDILIM (1962) ALL N.L.R. PAGE 581 ACT 582.
– SKEN CONSULT NIGERIA LIMITED VS. UKEY (1981) 1 S.C. PAGE 6
– OLOBA VS. AKEREJA (1988) 7 SCNJ PART 1 PAGE 56. PER JIMI OLUKAYODE BADA, J.C.A.

LEGISLATION: INTERPRETATION OF SECTIONS 284(1) AND 310 OF THE INVESTMENTS AND SECURITIES ACT 2007

In order to appreciate the objection, it is necessary at this juncture to set out Section 284 (1) (a) of the Investments and Securities Act 2007 which provides as follows:-
(1) The Tribunal shall to be exclusion of any other Court of law or body in Nigeria exercise jurisdiction to hear and determine any question of law or dispute involving:
(a) A decision or determination of the commission in the operation and application of this act and in particular relating to any dispute
(i) Between Capital Market Operators
(ii) Between Capital Market Operators and their clients
(iii) Between any investor and a securities exchange or Capital Trade Point or Clearing and Settlement Agency.
(iv) Between Capital Market Operators and Self-regulatory Organization;
(b) The Commission and Self-regulatory 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.
(3) …”
A perusal of the said Section 284 (1) set out above revealed that the Tribunal will have exclusive jurisdiction to entertain action only when:-
(i) There is a decision or determination of the commission

(ii) That decision must involve any of the entities set out in Section 284 (1) (a) (i)-(iv).
(iii) Or any other circumstance set out in Section 284 (b) – (f).
Also Section 310 of the Investments and Securities Act 2007 provides that
310 (1) The Commission may appoint one or more committees to carry out on its behalf such of its functions as the commission may determine.
310 (2) A Committee appointed under Sub-Section (1) of this Section shall consist of such number of persons as may be determined by the Commission; and a person other than a member of the Commission shall hold office on the Committee in accordance with the terms of his appointment.
310 (3) A decision of a Committee of the Commission shall be of no effect until it is confirmed by the Commission.”
A careful reading of the said Section 310 of the Act set out above would reveal that the 2nd Respondent is empowered to Act through its committees such as the Administrative Proceedings Committee.
See the case of ONI VS. ADMINISTRATIVE PROCEEDINGS COMMITTEE & ANOTHER (2014) 13 NWLR PART 1424 AT 351 PARAGRAPHS B – H. PER JIMI OLUKAYODE BADA, J.C.A.

JURISDICTION: WHEN CAN THE ISSUE OF JURISDICTION BE RAISED

There is no doubt that the decision appealed against is a final decision of the Tribunal, and it is trite law that issues of jurisdiction can be raised at any time. In OLIYIDE VS OBAFEMI AWOLOWO UNIVERSITY, ILE-IFE (2018) 8 NWLR PART 1622 AT PAGE 549 – it was held among others thus:-
“An issue of jurisdiction (like the one at hand) is not a fresh issue and it is settled law that such can be raised at any time by various means even viva voce for the first time on appeal in this Court. See – ANYANWU VS OGUNEWE & OTHERS (2014) LPELR – 22184 (SC).”
Contrary to the contention of Learned Senior Counsel for the 1st Respondent, jurisdiction can be raised without leave of Court since there is no restriction in how jurisdiction can be raised because a Court that lacks jurisdiction, lacks jurisdiction and same cannot be cured.
In the case of MARAIRE VS THE STATE (2017) 3 NWLR PART 1552 PAGE 283 AT 305 PARAGRAPH B, the Supreme Court held among others that –
“The law is trite that the issue of jurisdiction can be raised at any time and even for the first time before the apex Court. It is equally well settled that leave is not required to raise the issue of jurisdiction.
See –GAJI VS PAYE (2003) 8 NWLR PART 823 PAGE 583;
– OBIAKOR VS STATE (2002) 10 NWLR PART 776 PAGE 612;
– OMOMEJI VS KOLAWOLE (2008) 14 NWLR PART 1106 PAGE 180;
– AGBITI VS NIGERIAN NAVY (2011)4 NWLR part 1236 page 175.” PER JIMI OLUKAYODE BADA, J.C.A.

JUDGMENT: WHEN CAN PRE-JUDGMENT INTEREST BE AWARDED

There is no gainsaying in the fact that Pre-Judgment Interest can only be awarded when pleaded and proved based on evidence.
In NPA VS. AMINU IBRAHIM (SUPRA). It was held among others as follows:-
“The law is well settled that before a Pre-Judgment Interest can justifiably be awarded, a plaintiff often pleads that he is entitled to such interest and also that where he so pleads it, he must prove the basis for his entitlement of same by showing that it was supported either by statute or contract agreement between the parties or based on mercantile custom or on principle of equity. Such claim of interest is normally pleaded and proved. See AG FERRERO & COMPANY LTD. VS. HENKEL CHEMICALS NIG. LTD. (2011) LPELR – 12 (SC).
ADEYEMI VS. LAN AND BAKER NIG. LTD (2000) 7 NWLR PART 663 PAGE 3 AT 48.
It is however a valid law that a Court can still grant Pre-Judgment Interest on a monetary or liquidated sum awarded to a successful party even in a situation where such a party did not plead or adduce evidence in proof of such claim. Such interest, like in this instant case, naturally accrues from the failure or refusal to pay the amount involved over a long period of time, thereby depriving a party from the use of and/or enjoyment of the sum involved which is the fruit of his Judgment. See – PETGAS RES LTD. VS. MBANEFO (2007) 6 NWLR PART 1081 PAGE 545.”
Also in – IZEHI PROCUREMENT LTD. & OTHERS VS. RICELAND INTERNATIONAL LTD. & ANOTHER (2012) 16 NWLR PART 1325 PAGE 200 AT 219 PARAGRAPHS C – F. It was held among others thus:-

It is trite law that a Court cannot award to a Claimant what he did not claim or prove and a party who claims interest to be on safe side, has an obligation to support his claim with credible evidence. PER JIMI OLUKAYODE BADA, J.C.A.

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

KEYSTONE BANK LIMITED APPELANT(S)

And

1) DR. VINCENT O. EBUH 2) SECURITIES AND EXCHANGE COMMISSION 3) MIDAS STOCKBROKERS LIMITED RESPONDENT(S)

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of the Investments and Securities Tribunal, Lagos delivered on the 17th day of December, 2018 in SUIT NO: 1ST/LA/OA/02/2017 – BETWEEN: DR. VINCENT O. EBUH VS. (1) KEYSTONE BANK LIMITED (2) SECURITIES AND EXCHANGE COMMISSION (3) MIDAS STOCKBROKERS LIMITED wherein Judgment was entered in favour of the Claimant now 1st Respondent against the 1st Defendant now Appellant.

By an Amended Originating Application dated 9/5/2018 the 1st Respondent commenced an action against the Appellant (who was the 1st Defendant) the 2nd and 3rd Respondents as follows:-
(1) A DECLARATION of this Honourable Tribunal that the terms of the 1st Defendants’ Initial Public Offer of November, 2007, contained in its Prospectus, pursuant to which the Claimant applied to acquire 30,000,000 (Thirty Million) shares of the 1st Defendant constitutes an agreement between the Claimant and the 1st Defendant with regard to the Claimant’s Application to acquire the said 30,000,000 (Thirty Million) shares.

(2) A DECLARATION of the this Honourable Tribunal that, in view of the 1st Defendant’s allotment of 4,335,000 (Four Million, Three Hundred and Thirty–five Thousand) shares to the Claimant on the 7th April, 2008, the 1st Defendant became contractually obligated to, by virtue of the Prospectus, to return the sum of ₦436,305,000 (Four Hundred and Thirty Six Million, Three Hundred and five Thousand Naira) being value of the unalloted 25,665,000 (Twenty Five Million, Six Hundred and Sixty Five Thousand) shares which the Claimant applied and fully paid for under the 1st Defendant’s Initial Public Offer of November, 2007 to the Claimant together with accrued interest thereon till Judgment is delivered.
(3) A DECLARATION of the this Honourable Tribunal that, by virtue of the Prospectus, the 1st Defendant was contractually obligated to pay interest on the sum of ₦436,305,000 (Four Hundred and Thirty Six Million, Three Hundred and five Thousand Naira) to the Claimant at the Central Bank of Nigeria’s minimum rediscount rate in operation commencing from 12th April, 2008 when it was bound to pay same.
(4) A DECLARATION of the this Honourable Tribunal that, the 1st Defendant’s deliberate

refusal to return the sum of ₦436,305,000 (Four Hundred and Thirty Six Million, Three Hundred and Five Thousand Naira) being value of 25,665,000 (Twenty Five Million, Six Hundred and Sixty Five Thousand) shares which the Claimant applied and fully paid for under the 1st Defendant’s Initial Public Offer of November, 2007 to the Claimant is a breach of the agreement entered into between the Claimant and the 1st Defendant as contained in the Defendant’s Prospectus.
(5) A DECLARATION of the this Honourable Tribunal that, the 1st Defendant’s unsolicited allotment of 25,665,000 (Twenty Five Million, Six Hundred and Sixty Five Thousand) shares under its Special Placement of 2008 out of the 30,000,000 (Thirty Million) shares which the Claimant applied for and fully paid for under the 1st Defendant’s Initial Public Offer of November, 2007 is inconsistent with the 1st Defendant’s contractual obligation to the Claimant as contained in the Prospectus and not in the interest of the Claimant.
(6) AN ORDER of this Honourable Tribunal setting aside the 1st Defendant’s unsolicited and wrongful allotment of 25,665,000 (Twenty Five

Million, Six Hundred and Sixty Five Thousand) shares to the Claimant under its Special Placement of 2008 vide Bank PHB share certificate Number 362432 issues on 25th August, 2008 out of the 30,000,000 (Thirty Million) units of Shares which the Claimant applied for and fully paid for under the 1st Defendant’s Initial Public Offer of November, 2007.
(7) AN ORDER of this Court Tribunal setting aside the sale of 30,000,000 (Thirty Million) shares of the Bank PHB belonging to the Claimant which the 3rd Defendant sold without the Claimant’s authorization.
(8) AN ORDER of this Honourable Tribunal compelling the Defendants jointly and or severally to pay to the Claimant the following:-
(i) The sum of ₦436,305,000 (Four Hundred and Thirty Six Million, Three Hundred and five Thousand Naira) which said sum the Defendants refused to return to the Claimant on 19th April, 2008 contrary to its obligation under the Prospectus.
(ii) Compound Interest on the unreturned sum of ₦436,305,000 (Four Hundred and Thirty Six Million, Three Hundred and five Thousand Naira) at the Central Bank of Nigeria Minimum rediscount Rate in operation (as at 19th

April, 2008.) commencing from 19th April, 2008 until the date of payment, being accrued interest on the said sum which the Defendants was obliged to return to the Claimant on 19th April, 2008 pursuant to the Prospectus.
(iii) Post-Judgment interest on the sum accruing from the relied paragraph 8 (ii) at the rate of 10% (Ten per cent) till date of liquidation.

The Parties to this Appeal joined issues at the Trial Tribunal and the case was heard.
At the conclusion of hearing the Tribunal in its Judgment delivered on 17th December, 2018 found in favour of the 1st Respondent by dismissing the preliminary objection filed by the Appellant challenging the Tribunal’s jurisdiction on the Ground that the action was statute barred. The Tribunal also held the Appellant liable in respect of the shares i.e. the subject of complaint and found that the Appellant even though having a different name now took over from the defunct Bank PHB and as such inherited all its assets and liabilities.

The Appellant who is dissatisfied with the Judgment of the Tribunal appealed to this Court by means of the Notice of Appeal dated the 26th day of February, 2019.

The Learned Senior Counsel for the Appellant formulated seven issues for the determination of this Appeal. The said issues are set out as follows:-
”(1) Whether the Tribunal lacked the Jurisdiction to entertain the 1st Respondent’s Claims (Distilled from Grounds 1, 18 and 19 of the Notice of Appeal).
(2) Whether the Tribunal’s findings that the transaction for refund of shares was a contract under seal was wrong, which also breached the Appellant’s rights to fair hearing. (Distilled from Grounds 2, 3 and 4)
(3) Whether the allotment of the 25,665,000 units of the Bank PHB shares was merely voidable and not void ab initio. (Distilled from Ground 9).
(4) Whether from the circumstances of this case, the 1st Respondent had by his actions ratified and waived any irregularities associated with the allotment of the 25,665,000 units of the Bank PHB shares (Distilled from Ground 10).
(5) Whether the Tribunal was wrong when it held that the 1st Respondent had proved his case and granted him the reliefs sought (Distilled from Grounds 5, 6, 7, 8, 12, 13, 14, 15 and 20).
(6) Whether in the circumstances of

this case the decision of the Honourable Tribunal was perverse? (Distilled from Ground 11).
(7) Whether the 1st Respondent proved and was entitled to his claims for pre-Judgment and post-Judgment interest? (Distilled from Grounds16 and 17).

The Learned Senior Counsel for the 1st Respondent adopted the seven issues formulated on behalf of the Appellant in the determination of this Appeal.

The Learned Counsel for the 2nd Respondent in his own case formulated only three issues for the determination of the Appeal. The said issues are set out as follows:-
(1) Whether from the facts and circumstances of this Appeal, there exist a reasonable cause of action against the 2nd Respondent (Distilled from Ground 1).
(2) Whether the suit the subject of this Appeal is statute barred in relation to the 2nd Respondent (Distilled from Ground 1).
(3) Whether the Investment and Securities Tribunal lacked the competence to entertain the matter (Distilled from Ground 19).

At the hearing of this Appeal on 7/12/2020, the Learned Senior Counsel for the Appellant stated that the Appeal is against the Judgment of the Investments and Securities Tribunal, Lagos hereinafter called the Tribunal, delivered on the 17th day of December, 2018.

The Notice of Appeal being relied upon was filed on 26/2/2019.
The Appellant’s Brief of Argument was filed on 29/7/2019, but it was deemed as properly filed and served on 7/12/2020.

On being served with the 1st Respondent’s Brief of Argument, the Learned Senior Counsel for the Appellant filed Appellant’s Reply Brief to the 1st Respondent’s Brief of Argument on 25/11/2020.
The said Appellant’s Reply Brief was deemed as properly filed and served on 7/12/2020.

The Learned Senior Counsel for the Appellant in the absence of Counsel for 2nd Respondent referred to the 2nd Respondent’s Brief of Argument filed on 27/8/2020, which was deemed as properly filed and served on 7/12/2020.

The Appellant’s Reply Brief of Argument to the 2nd Respondent’s Brief which was filed on 19/10/2020, was deemed as properly filed and served on 7/12/2020.
The Learned Senior Counsel for the appellant adopted and relied on the said:-
(a) Appellant’s Brief of Argument
(b) Appellant’s Reply Brief to the 1st Respondent’s Brief of Argument;

(c) Appellant’s Reply Brief to the 2nd Respondent’s Brief of Argument;
as his Argument in urging that the Appeal be allowed.

The Learned Senior Counsel for the 1st Respondent also referred 1st Respondent’s Brief of Argument filed on 14/10/2020, which was deemed as properly filed and served on 7/12/2020.

He adopted and relied on the said 1st Respondent’s Brief as his Argument in urging that the Appeal be dismissed.
The Learned Counsel for the 2nd Respondent who came late to Court and whose Brief has been deemed as properly filed and served, adopted and relied on the said 2nd Respondent’s Brief of Argument as his Argument in urging that the Appeal be dismissed.

I have carefully gone through the issues formulated for the determination of the Appeal by Counsel for the parties, the issues formulated on behalf of the 2nd Respondent is encapsulated in the issues formulated on behalf of the Appellant. In the circumstances, I will rely on the issues formulated on behalf of the Appellant in the determination of this Appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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ISSUES 1 AND 2 (TAKEN TOGETHER)
(1) Whether the Tribunal lacked the Jurisdiction to entertain the 1st Respondent’s claims (Distilled from Grounds 1, 18 and 19).
(2) Whether the Tribunal’s findings that the transaction for refund of shares was a contract under seal was wrong which also breached the Appellant’s rights to fair hearing? (Distilled from Ground 2, 3 and 4).

The Learned Senior Counsel for the Appellant submitted that the Tribunal lacked the Jurisdiction to entertain the matter because it suffered three fundamental defects:-
(a) The condition precedent set out in Section 284 (1) of the Investment and Securities Act 2007 to the exercise of the jurisdiction of Investments and Securities Tribunal was not complied with.
(b) The action was statute barred.
(c) The Investments and Securities Tribunal lacked the competence to entertain the matter as it is a matter that falls within the strict jurisdiction of the Federal High Court.

It was submitted on behalf of the Appellant that the Tribunal lacked the Jurisdiction to entertain the matter as the condition precedent in Section 284 (1) of the Investments and Securities Act 2007 (Is Act 2007) was not compiled with as the action was filed directly at the Tribunal without a decision by the 2nd Respondent).

It was also submitted that by Section 310 of the Act the 2nd Respondent is empowered to Act through its committees such as the Administrative Proceedings Committee. The Learned Senior Counsel for the Appellant relied on the following cases:-
– ONI VS. ADMINISTRATIVE PROCEEDINGS COMMITTEE & ANOTHER (2014) 13 NWLR PART 1424 PAGE 334 AT 351 PARAGRAPHS B-H.
– IGBRUDE VS. ECOBANK LIMITED & OTHERS (2018) LPELR – 45563 (CA).
– OKOROCHA VS. UBA (2018) 17 NWLR PART 1649 PAGE 441 AT 454.

On the submission that the action was statute barred, Learned Senior Counsel for the Appellant argued that the cause of action was based on a simple contract being for refund of money and that by virtue of SECTION 7 OF THE LIMITATION ACT CAP 522 LFN 1990, the action was statute barred.

It was submitted further on behalf of the Appellant that there was no contract between the Appellant and the 1st Respondent and that the Appellant could not have been made liable for same as there was no privity of contract.

Concerning the third defect it was contended on behalf of the Appellant that the Investments and Securities Tribunal lacked the competence to entertain the matter as it is a matter that falls within the strict Jurisdiction of the Federal High Court, she relied on – SECTION 251 (1) (e) OF THE (1999) CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED).

The Learned Counsel for the Appellant relied on the following cases:-
– FAGBOLA VS. K.C.C.I.M.A. (2006) 6 NWLR PART 977 PAGE 433 AT 450 PARAGRAPHS F – H.
– FBN VS. NTIA (2014) LPELR -24104 (CA).

It was argued that the Tribunal lacked the Jurisdiction to entertain the matter.
The Learned Senior Counsel for the Appellant finally urged this Court to resolve this issue in favour of the Appellant and hold that the Tribunal lacked Jurisdiction to entertain the matter.

The Learned Senior Counsel for the 1st Respondent in his response submitted that the Appellant never raised the issue of the Federal High Court having Jurisdiction in this matter before the Tribunal. He went further that the point was raised for the first time in this Appeal and that this cannot be allowed to start without the leave of the Court having been first sought and obtained.

It was submitted on behalf of the 1st Respondent that the issue of the Jurisdiction of the Federal High Court as well as the Provision of Section 284 (1) of the Investments and Securities Act being new issue raised for the first time in this Appeal without prior leave of Court sought and obtained goes to no issue. He relied on the cases of – ADEGBOLA VS. IDOWU (2017) 17 NWLR PART 1595 PAGE 353 AT 375 PARAGRAPH C.
– OKOMU OIL PALM CO. VS. TAJUDEEN (2016) 3 NWLR PART 1499 AT PAGE 284 AT 312 – 313 PARAGRAPHS H – A.

If this Court disagrees with the above submission, the learned Senior Counsel for the 1st Respondent submitted that the Federal High Court has no Jurisdiction over Securities, Investments or shares and issues relating to the Capital Market and its operators.

It was submitted on behalf of the 1st Respondent that the Tribunal is a special creation for the purpose of tackling issues arising from securities, investments between capital market operators and investors such as the 1st Respondent. He argued that the Jurisdiction of the Federal High Court is ousted.

It was contended that the transaction between the Appellant and the 1st Defendant is contractual. And when it comes to matters of contract and contract related issues, the Federal High Court has no Jurisdiction.
The following cases were relied upon:-
– IKPEKPE VS. W.R. & P. CO. LIMITED (2018) 17 N.W.L.R. PART 1648 PAGE 280 AT PAGE 294 PARAGRAPHS F – G.
– FUTA VS. B.M.A. VENTURES NIGERIA LIMITED (2018) 17 N.W.L.R. PART 1649 PAGE 477.

It was also contended on behalf of the 1st Respondent that apart from the provision of the Limitation Act inSection 12 (1) of the Limitation Laws of Lagos State and Section 14 (1) (a) of the Limitation Act of the Laws of the Federation of Nigeria, Section 385 of the Companies and Allied Matters Act (CAMA) also provide a period of 12 years to institute a claim for dividends.

The Learned Senior Counsel for the 1st Respondent urged that the issues under consideration be resolved in favour of the 1st Respondent.

The Learned Counsel for the 2nd Respondent in his response argued that a cause of action is a cause of complaint. Cause of action means a combination of facts and

circumstances giving rise to the right to file a claim in Court for a remedy. It includes all things which are necessary to give a right of action and every material fact which has to be proved to entitle the Claimant to succeed. He relied on the case of MULIMA VS. USMAN (2014) 16 N.W.L.R. PART 1432 PAGE 160 AT 167 RATIO 1.

He submitted that the 1st Respondent’s cause of action arose an 19/4/2008 when the Appellant breached, failed, neglected and or refused to return the sum of (₦436,305,000.00) Four Hundred and Thirty-six Million, Three Hundred and Five Thousand Naira being value of the (25,665,000) Twenty-five Million, Six Hundred and Sixty-five Thousand units of unalloted shares of the 1st Respondent.

The Learned Counsel for the 2nd Respondent submitted that there is no fact or evidence before the Lower Tribunal linking and or connecting the 2nd Respondent in all transactions made between the Appellant, 1st and 3rd Respondents.

The Learned Counsel for the 2nd Respondent submitted that the Tribunal was right when it held that there was no reasonable cause of action against the 2nd Respondent.

He relied on the following cases:- A. G. ANAMBRA STATE VS. U.B.A. (2005) 15 N.W.L.R. PART 947 PAGE 44 AT 62.
– SULGRAVE HOLDINGS INC. VS. F. G. N. (2012) 17 N.W.L.R. PART 1329 PAGE 309 AT 333.
See also – SECTION 131 OF THE EVIDENCE ACT 2011.
– RINCO CONSTR. CO. VS. VEEPEE IND. LIMITED (2005) 9 N.W.L.R. PART 929 PAGE 82.

It was submitted on behalf of 2nd Respondent that the agencies of the Federal or State Governments are Public Officers entitled to the protection envisaged and contemplated under Section 2 (a) Public Officer’s Protection Law.

The case of –SEC VS. KASUNMU (2009) 10 N.W.L.R. PART 1150 PAGE 509 AT 517 RATIO 7 was relied upon.
It was also contended that as at 19/4/2008, the 1st Respondent’s time to institute the action began to run but, that he did not institute the action until 10/11/2017.

Section 7 of the Limitation Law of Lagos State 2005 made Provision that actions founded on simple contract shall not be brought after the expiration of six years. The case of – YAKUBU VS. NITEL LIMITED (2006) 9 N.W.L.R. PART 985 PAGE 367 AT 391 was relied upon.

It was submitted on behalf of 2nd Respondent that the claim for refund of the unalloted shares of 1st Respondent is purely a matter covered under the Investments and Securities Act to which the Tribunal has exclusive Jurisdiction. He relied upon –AJAYI VS. SEC. (2007) LPELR – 4553.
– SECURITIES AND EXCHANGE COMMISSION VS. KASUNMU (2009) 10 N.W.L.R, PART 1150 PAGE 509.

The Learned Senior Counsel for the Appellant in her Appellant’s Reply Brief of Argument to the 1st Respondent and 2nd Respondent respectively re-iterated her earlier submission on the issues under consideration and urged that the issues 1 & 2 be resolved in favour of the Appellant.

RESOLUTION
The trite position of the law is that a Court is competent to assume Jurisdiction:-
(i) When it is properly constituted,
(ii) The subject matter of the actions is within the Court’s Jurisdiction.
(iii) There is no feature in the case which prevents the Court from exercising its jurisdiction
(iv) The action is initiated by due process of law and
(v) Any condition precedent to the exercise of the Court’s Jurisdiction has been fulfilled. Any defect in the competence is fatal to the jurisdiction.

See- MADUKOLU & OTHERS VS. NKEMDILIM (1962) ALL N.L.R. PAGE 581 ACT 582.
– SKEN CONSULT NIGERIA LIMITED VS. UKEY (1981) 1 S.C. PAGE 6
– OLOBA VS. AKEREJA (1988) 7 SCNJ PART 1 PAGE 56.

The Learned Senior Counsel for the Appellant submitted that the Tribunal lacked jurisdiction to entertain the matter because it suffered three fundamental defects.
The condition precedent set out in Section 284 (1) of the Investment and Securities Act 2007 to the exercise of jurisdiction of the Investments and Securities Tribunal was not compiled with.
But the Learned Senior Counsel for the 1st Respondent referred to the judgment of the Tribunal where it was held that the 2nd Respondent who filed Preliminary Objection to the jurisdiction of the Tribunal abandoned same and the objection was accordingly discountenanced.
In order to appreciate the objection, it is necessary at this juncture to set out Section 284 (1) (a) of the Investments and Securities Act 2007 which provides as follows:-
(1) The Tribunal shall to be exclusion of any other Court of law or body in Nigeria exercise jurisdiction to hear and determine any

question of law or dispute involving:
(a) A decision or determination of the commission in the operation and application of this act and in particular relating to any dispute
(i) Between Capital Market Operators
(ii) Between Capital Market Operators and their clients
(iii) Between any investor and a securities exchange or Capital Trade Point or Clearing and Settlement Agency.
(iv) Between Capital Market Operators and Self-regulatory Organization;
(b) The Commission and Self-regulatory 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.
(3) …”
A perusal of the said Section 284 (1) set out above revealed that the Tribunal will have exclusive jurisdiction to entertain action only when:-
(i) There is a decision or determination of the commission

There is therefore no gainsaying in the fact that it is only when the Administrative Proceedings Committee of the 2nd Respondent has delivered a decision on the 1st Respondent’s complaints that the conditions precedent would have been met. A person cannot go directly to the Investment and Securities Tribunal. See IGBRUDE VS. ECOBANK LIMITED (2018) LPELR – 45563 (CA).
InOKOROCHA VS. U.B.A. (2018) 17 N.W.L.R. PART 1649 PAGE 441 AT 454.
It was held among others as follows:-
“…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 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”.

Consequent upon the foregoing, I am of the view that the Tribunal ab initio lacked the jurisdiction to entertain the matter as the conditions precedent to the exercise of its jurisdiction i.e. “decision or determination of the Commission” was not met and as a result the Tribunal lacks the competence to determine 1st Respondent’s claim in view of Section 284 (1) (a) (i) – (iv) of the Investments and Securities Act 2007.

On Statute of Limitation.
The Learned Senior Counsel for the Appellant argued that the cause of action was based on a simple contract being for a refund of money and by virtue of Section 7 of the Limitation Act Cap 522 LFN 1990, the case having been instituted more than 6 years after the cause of action, arose, it was statute barred.
The Learned Senior Counsel for the 1st Respondent submitted that the Tribunal rightly held that the action of the 1st Respondent was not statute barred.
As far as the 2nd Respondent is concerned it was argued that the action against the 2nd Respondent was statute barred as at the time it was instituted.

The cause of action in this matter accrued on 19/4/2008, while this action was instituted at the Tribunal on 7/11/2017. That is a period of 9 years and some months.
The claim of the 1st Respondent is for recovery of surplus payment of ₦436,305,000 for 25,665,000 shares i.e. Four Hundred and Thirty Six Million, Three Hundred and Five Thousand Naira for Twenty-five Million, Six Hundred and Sixty-five Thousand shares.
By the provision of SECTION 146 (3) OF THE COMPANIES AND ALLIED MATTERS ACT (CAMA) every certificate issued by a company must be under seal.
Also, by Section 385 of CAMA a period of 12 years is allowed to institute a claim for dividends. In this case, it is a claim for unalloted shares. It follows therefore that, if claims for dividends can be brought within a period of 12 years, same right accrues to a person who is suing for return of the money meant for unallotted shares.
I am therefore of the view that for any action founded on the failure or refusal by an issuer of securities/shares to return surplus monies for unallotted share must be instituted within the time stipulated for suits on contracts under seal which is 12 years (See Section 385 of CAMA)

I have earlier stated in this Judgment that the 1st Respondent instituted the action that led to this Appeal within 9 years and 7 months precisely. This in my view is still within the statutory period of limitation for contract under seal which is 12 years.
See Section 12 (1) (a) Limitation Laws of Lagos State which provides as follows:-
“(1) The following actions will not be brought after expiration of 12 years from the date on which the cause of action accrued.
(a) An action upon instrument under seal, other than an action upon an instrument to recover.”
In view of the foregoing Section 8 (i) (a) of the Limitation Act No. 88 of 1966, Cap 522 Laws of the Federation of Nigeria 1990 relied upon by the Appellant is not applicable in this situation.
My inevitable conclusion is that the action is not statute barred.

Concerning the contention by the Appellant that the Investments and Securities Tribunal lacked the competence to entertain the matter as it is a matter that falls within the strict jurisdiction of the Federal High Court.

The Learned Senior Counsel for the Appellant submitted that the Investments and Securities Tribunal lacked jurisdiction to have entertained this matter she relied on Section 251 (1) (e) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the following cases:-
– FAGBOLA VS K.C.C.I.M.A (2006) 6 NWLR PART 977 PAGE 433 AT 450 PARAGRAPHS F-H.
– TANAREWA NIG. LTD VS PLASTIFARM NIG. LTD (2003) 14 NWLR PART 840 PAGE 355 AT 376 PARAGRAPHS B-C.
– F.B.N. VS NTIA (2014) LPELR – 24104 (CA).

In his response, the Learned Senior Counsel for the 1st Respondent argued that the Appellant never raised the issue of Federal High Court having jurisdiction before the Tribunal. He went further that the point was raised for the 1st time in this appeal and that it cannot be raised like that without the leave of Court.

The objection raised on behalf of the 2nd Respondent that this action was statute barred in view of Section 2(a) of the Public Officers Protection Act was referred to by the Learned Senior Counsel and it was submitted that prior leave of Court ought to be sought and obtained before new issue could be raised for the first time. He relied on the following cases:-

– ADEGBOLA VS IDOWU (2017) 17 NWLR PART 535 PAGE 358 AT 375 PARAGRAPH C.
– OKOMU OIL PALM CO. VS TAJUDEEN (2016) 3 NWLR PART 1499 PAGE 284 AT 312-313 PARAGRAPHS H-A.

The Learned Senior Counsel for the 1st Respondent also argued that the Federal High Court has no jurisdiction over Securities Investments or shares and issues relating to the Capital market and its operators as provided by the Investment and Securities Act (ISA).

He went further in his submission that the Tribunal is a special creation for the purpose of taking issues arising from Securities, Investments between capital market operators and Investors such as the 1st Respondent. He stated that the jurisdiction of the Federal High Court is ousted. He relied on the following cases:-
– UBA VS OKOROCHA (2018) 17 NWLR PART 1649 PAGE 4410.
– IKPEKPE VS W.R & P CO. LTD (2018) 17 NWLR PART 1648 PAGE 280 AT 294 PARAGRAPHS F-G.
– FUTA VS BMA VENTURES (NIG) LTD (2018) 17 NWLR PART 1649 PAGE 477.

The Learned Counsel for the 2nd Respondent in his own case submitted that the jurisdiction of the Investments and Securities Tribunal is not a concurrent application with the Federal High

Court but is exclusive to the Investments and Securities Tribunal. He relied on the following cases:-
– AJAYI VS SEC (2007) LPELR – 4553.
– SECURITIES & EXCHANGE COMMISSION VS KASUNMU (2009) 10 NWLR PART 1150 PAGE 509.
– WEALTHZONE LIMITED VS SECURITIES & EXCHANGE COMMISSION (2016) LPELR -41808.

Before examining whether it is the Federal High Court that has jurisdiction or the investments and Securities Tribunal, it is appropriate at this juncture to consider the contention of the 1st Respondent that the Appellant did not raise the issue of the Federal High Court having jurisdiction before the Tribunal and that it is a new issue raised for the first time without prior leave of this Court.
There is no doubt that the decision appealed against is a final decision of the Tribunal, and it is trite law that issues of jurisdiction can be raised at any time. In OLIYIDE VS OBAFEMI AWOLOWO UNIVERSITY, ILE-IFE (2018) 8 NWLR PART 1622 AT PAGE 549 – it was held among others thus:-
“An issue of jurisdiction (like the one at hand) is not a fresh issue and it is settled law that such can be raised at any time by various

means even viva voce for the first time on appeal in this Court. See – ANYANWU VS OGUNEWE & OTHERS (2014) LPELR – 22184 (SC).”
Contrary to the contention of Learned Senior Counsel for the 1st Respondent, jurisdiction can be raised without leave of Court since there is no restriction in how jurisdiction can be raised because a Court that lacks jurisdiction, lacks jurisdiction and same cannot be cured.
In the case of MARAIRE VS THE STATE (2017) 3 NWLR PART 1552 PAGE 283 AT 305 PARAGRAPH B, the Supreme Court held among others that –
“The law is trite that the issue of jurisdiction can be raised at any time and even for the first time before the apex Court. It is equally well settled that leave is not required to raise the issue of jurisdiction.
See –GAJI VS PAYE (2003) 8 NWLR PART 823 PAGE 583;
– OBIAKOR VS STATE (2002) 10 NWLR PART 776 PAGE 612;
– OMOMEJI VS KOLAWOLE (2008) 14 NWLR PART 1106 PAGE 180;
– AGBITI VS NIGERIAN NAVY (2011)4 NWLR part 1236 page 175.”

In order to determine whether the issue submitted to the Tribunal by the 1st Respondent are matters within the exclusive jurisdiction of the Federal High Court or that of the Investments and Securities Tribunal, it would be necessary to examine the provisions of Section 251 (1) (e) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) vis-a-vis the provisions of Section 284 (1) of the Investment and Securities Act 2007.
Section 251 (1) (e) Supra provides as follows:-
“(I) Notwithstanding, anything to the contrary, contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in Civil cases and matters –
(e) arising from the operation of the Companies and Allied Matters Act or any other enactments replacing the Act or regulating the Operation of Companies Incorporated under the Companies and Allied Matters Act.”
Section 284 (1) of the Investments and Securities Act 2007 provides as follows:-
“The Tribunal shall to the exclusion of any other Court of law or body in Nigeria exercise jurisdiction to hear and determine question of law or dispute involving –

(a) A decision or determination of the commission in the operation and application of this Act and in particular relating to any dispute:
(i) Between capital market operators.
(ii) Between capital market operators and their clients.”
While examining the extent of the jurisdiction of the Investments and Securities Tribunal, this Court in – WEALTHZONE LTD VS SEC. (2016) LPELR – 41808 (CA) held among others as follows:
“… in seeking to examine the Constitutionality of the exclusive jurisdiction conferred on the Tribunal what this simply portends in the opinion of this Court, is that the situation calls for a critical examination of the accurate interpretative intentions of the National Assembly (Legislature) when in 1999, it created the Tribunal exclusively as a specialist Court for the handling of Securities and Capital market cases, it would be recalled that the establishment of the Tribunal at the time also resulted in other collateral legislative issues which are intricately tied to the creation of the Court and the consideration of which, tends to throw light on the clear intentions

of the Legislature, nevertheless for instance, to ensure that the Tribunal functioned and performed optimally, Section 263 (1) of the Investments and Securities Act 1999 (now ISA 2007) appropriately and expressly repealed part XVII of the Companies and Allied Matters Act (CAMA) 1990, which at the time regulated dealings in the Capital and Securities market and implicitly vested exclusive jurisdiction for handling disputes arising therefrom on the Federal High Court for having therefore expressly divested the Federal High Court of its jurisdictional stronghold over capital market matters, in the opinion of this Court, by expressly expunging part XVII of the CAMA when the Section provided thus:-
“263 (1) the following enactments are hereby repealed …(d) part XVII of the Companies and Allied Matters Decree 1990” it simply means that the National Assembly clearly intended to carve out and assign exclusively to the Nigerian Investments and Securities Tribunal as a specialist Court, its own spheres of operations whose mainstay would be the resolution of disputes arising from the operations of the capital and Securities market away from the

expansive corporate jurisdiction to which the Federal High Court has already been saddled. The clear interpretation of the Act of the National Assembly in 1999 when it created the Investments and Securities tribunal as a specialist Court simply means that, the exclusive jurisdiction of the Federal High Court would no longer extend to matters affecting the operations of the Capital and Securities market, but remain limited to matters that may arise from the Provisions of BOFIA AND CAMA…”
I agree entirely with the decision of this Court set out above and since the subject matter in the instant appeal borders on a Capital Market Operator and its client, I am of the view that it is the Investments and Securities Tribunal that has the jurisdiction to hear and determine the case as against the Federal High Court.

In conclusion on issues 1 and 2, as I have stated earlier in this Judgment, the Tribunal in this case lacked the jurisdiction to entertain this matter because the condition precedent to the exercise of its jurisdiction was not met. Therefore, issue 1 is hereby resolved in favour of the Appellant and against the Respondents, while issue 2 is resolved in favour of the Respondents and against the Appellant.

ISSUES 3 AND 4 (TAKEN TOGETHER)
(3) Whether the allotment of the 25,665,000 units of Bank shares was merely voidable and not void ab initio (Distilled from Ground 9).
(4) Whether from the circumstances of this case the 1st Respondent had by his actions ratified and waived any irregularities associated with the allotment of the 25,665,000 units of Bank PHB shares? (Distilled from Ground 10).

Learned Senior Counsel for the Appellant relied on Sections 122 to 128 of the Companies and Allied Matters Act and Sections 90 to 93 of the Investments and Securities Act 2007.

She submitted that where shares are not issued in accordance with a specific procedure, such allotment is merely voidable. She relied on the following cases of:-
– NATIONAL INSURANCE CORPORATION OF NIGERIA VS POWER & INDUSTRIAL ENGINEERING CO. LTD (1986) 1 NWLR PART 141 AT PAGE 3.
– S.T.B. VS OLUSOLA (2008) 1 NWLR PART 1069 PAGES 595-596 PARAGARPHS F – B.

She argued that the 1st Respondent ought to have instituted an action to rescind the allotment and have the money returned, but that failed to do so.

It was also contended on behalf of the Appellant that it was not Platinum Habib Bank because it was not in existence when the transaction took place, it was a different entity and could not be liable for the said Bank’s actions. It was contended on behalf of the Appellant that the 1st Respondent had by his conduct waived any irregularity associated with allotment and ratified same as he had dematerialize the shares, collected dividend and acted inconsistently with a person who claimed he did not apply for the shares under the private placement. She relied on – TIKA TORE PRESS LIMITED & OTHERS VS ABINA & OTHERS (1973) ALL NLR PAGE 334 AT 344.
– ADEYEMO ONIFADE VS MUSLIM OYEDEMI & OTHERS (1999) 5 NWLR PART 601 PAGE 54 AT 68 PARAGRAPHS D TO E.
– MAINSTREET BANK LTD VS MRS LILIAN HALIM ABI CHAHINE (2015) 11 NWLR PART 1471 PAGE 479 AT 524 PARAGRAPH B.

Learned Senior Counsel for the Appellant urged this Court to resolve the two issues in favour of the Appellant.
The Learned Senior Counsel for the 1st Respondent in his response submitted that Sections 122-128 of CAMA and

Sections 90 – 93 of the Investments and Securities Act and the authorities relied upon by the Appellant are inapplicable to the facts and circumstances of this case.

It was submitted on behalf of the 1st Respondent that he paid the sum of (N510,000,000.00) Five hundred and Ten million Naira to the Appellant on 18/12/2007 following the initial public offer to the public of (5,000,000,000). Five Billion ordinary shares. In the prospectus issued by the bank, it was stated that surplus monies would be refunded within 5 working days of allotment of shares. The shares allotted to 1st Respondent was 4,335,000.00 Four Million Three Hundred and thirty-five thousand shares leaving out 25,665,000.00 shares representing the sum of N436,305,000.00 only. It is expected that having allotted shares representing the sum of 73,695,000 Million Naira, the balance would be refunded to the 1st Respondent within five days as stated in the prospectus which is the 19/4/2008 but that was not to be.

It was by a letter dated 25/8/2008, to the 1st Respondent that his unalloted shares of 25,665,000 was put on special placing order without the 1st Respondent’s knowledge.

It was contended thatSections 122 – 128 of CAMA as well as Sections 90 – 93 of the Investments and Securities Actrelied upon by the Appellant would not apply.

It was submitted on behalf of the 1st Respondent that a party who has undertaken an illegality should not be allowed to benefit from same. The following cases were relied upon –
– OMOYENI VS CBN & OTHERS (2015) LPELR – 25789 CA.
– KATAGUM & ANOTHER VS ME-MAI (2014) LPELR – 23227 (CA).
– PINA VS MAI – ANGWA (2018) 15 NWLR PART 1643 PAGE 431 AT 441 PARAGRAPHS D-E.

It was finally submitted on behalf of the 1st Respondent that the transaction in this case is void ab initio and no amount of concession, condonement of subscription can make it legitimate. What is void is in law void and parties cannot by agreement accord it the status of legality and sanity. The case of – OSIFO VS OKOGBO COMMUNITY BANK LTD (2006) 15 NWLR PART 1002 was relied upon.

The learned Senior Counsel for the 1st Respondent finally urged that the issues be resolved in favour of the 1st Respondent.

In order to untie the knots in the issues under consideration, there is no doubt that Sections 122 – 128 of the Companies and Allied Matters Act are relevant. But Section 128 the said CAMA provides thus:-
“128 (1) An allotment made by a Company to an applicant before the holding of the statutory meeting, in contravention of the provisions of this Act, shall be voidable at the instance of the applicant within one month after the holding of the statutory meeting of the Company and not later, or where the allotment is made after the holding of the statutory meeting, within one month after the date of the allotment and not later, and the allotment shall be so voidable notwithstanding that the Company is in the course of being wound up.”
“128 (2) If any director of a Company knowingly contravenes or permits or authorizes the contravention of any of the provisions of this Act with respect to allotment, he shall be liable to compensate the Company and the allotee respectively for any loss damages or costs which the Company or the allotee may have sustained or incurred thereby:
Provided that proceedings to receiver any such loss damages or costs shall not be commenced after the expiration of two years from the date allotment.”

Also Sections 90 – 93 of the Investments and Securities Act 2007 is also relevant and it applies to offers made to the Public for shares.Section 128 of CAMA and Section 93 of the Investments and Securities Act 2007 are in pari material.
SECTION 93 (1) provides as follows:
93(1)”An allotment made by a Company to an applicant in contravention of the provisions of Sections 90 and 92 of this Act shall be voidable at the instance of the applicant:
(a) Within one month after the holding of the statutory meeting of the Company; or
(b) Where the allotment is made after the holding of the statutory meeting within one month after the date of the allotment and the allotments shall be so voidable notwithstanding that the Company is in the course of being wound up.
(2) If any director of a Company knowingly contravenes or permits or authorizes the contravention of the provisions of Sections 90 and 92 of this Act with respect to an allotment, he shall be liable to compensate the Company and the allotee respectively for any loss, damage or costs which the Company or the allotee may have sustained

or incurred thereby, but proceedings to recover any such loss damages or costs shall not be commenced after the expiration of two years from the date of the allotment.”
In this appeal under consideration, the Platinum Habib Bank did issued the 25,665,000 units of shares as shown by Exhibit CW6. The issuance of same pursuant to a special placing offer after the IPO could be considered irregular and voidable but not void. See – Sections 124 and 128 of CAMA as well as Section 93 of Investments and Securities Act 2007.
The 1st Respondent ought to have taken steps within one month to void the shares. The 1st Respondent could also have taken action against the directors liable and this ought to have been done within 2 years of said allotment but he failed to do so. See – SASEGBON NIGERIAN COMPANIES AND ALLIED MATTERS LAW AND PRACTICE PAGES 200 – 201.
In this case Exhibit CW6 shows the Bank ratified the issuance of the shares and the 1st Respondent’s actions ratified the shares and did not take steps in accordance with the law to void the said 25,665,000 shares within one month thereof, Rather:

(a) 1st Respondent admitted that on 6/10/2008 he handed the shares over to the 3rd Respondent (his shareholder and agent) for safe keeping and dematerialization (see paragraph 23 page 199, paragraph 33 page 212).
(b) He collected dividends to the tune of N12,150,000.00 on all the shares. See pages 273 and 274 of the record of appeal and also pages 723-724 lines 1 – 4.
(c) The Tribunal noted at page 856 that he was paid dividends amounting to the sum of N12,150,000 vide Exhibit CW10.
(d) The 1st Respondent left the shares with his stockbrokers for three years plus.
(e) He did not take steps under the law to rescind the contract for the sale of shares.
As stated earlier in this judgment, by law the 1st Respondent ought to have instituted an action to rescind the allotment and have the money returned, and but he failed to do so.
He did not also take any step against the directors in accordance withSections 128 (2) of CAMA or 93 (2) of his Act 2007.
In view of the foregoing, I am of the view that the 1st Respondent by his actions waived any irregularity and had ratified same.

See – TIKA-TORE PRESS LIMITED & OTHERS VS ABINA & OTHERS (1973) ALL NLR PAGE 334 AT 344 where it was held that shares improperly allotted are merely voidable and not void.
See – OLAKUNLE OROJO COMPANY LAW AND PRACTICE IN NIGERIA FIFTH EDITION PAGE 431.
In view of the foregoing, issue numbers 3 & 4 are resolved in favour of the Appellant and against the Respondents.

ISSUE NUMBERS 5 AND 6 (TAKEN TOGETHER)
(5) Whether the Tribunal was wrong when it held that the 1st Respondent had proved his case and granted him the reliefs he sought
(6) Whether in the circumstances of this case, the decision of the Honourable Tribunal was perverse?

The learned Counsel for the Appellant submitted that the Tribunal was wrong when it granted the reliefs sought by the 1st Respondent because there was no evidence to support the grant of the said reliefs.

It was contended on behalf of the Appellant that it did not take over Bank PHB, its assets or liabilities or the sum of N436,305,000.00. That the Appellant was incorporated in August, 2011 long after the IPO and the said private placement of the Bank’s said shares took place.

It was also argued on behalf of the Appellant that the 1st Respondent did not prove its case as he has waived his rights, ratified the allotment of the 25,665,000 units of shares dematerialized the said shares collected dividends and had acted inconsistently with his claim that he was entitled to his money back.

It was also submitted further that the 1st Respondent failed to discharge the onus of proof placed on him pursuant to Section 131 of the Evidence Act and was therefore not entitled to the reliefs granted by the Tribunal.

In his response, the Learned Senior Counsel for the first Respondent submitted that the Appellant did not deny the fact that it entered into a purchase and Assumption Agreement with the Nigerian Deposit Insurance Corporation. It was contended that it was not the duty of the 1st Respondent to tender the Assumption Agreement before the Tribunal. It was argued that the 1st Respondent was not a party to the Agreement with NDIC but the Appellant was.

Learned Senior Counsel argued that Bank PHB has transformed to the Appellant and that it is common place that once a bank acquires and takes over another, it acquired its assets and liabilities including customers, and

clients. Therefore, that the onus lies on the Appellant to demonstrate by credible evidence that it is a separate entity having no affiliation with Bank PHB. It was submitted on behalf of the 1st Respondent that the burden to proof the existence of the purchase and Assumption Agreement rests squarely on the Appellant and not the 1st Respondent.

He relied on the following cases of-
– CHEMIRON INT’L LTD VS STABILON VISION LTD (2018) 17 NWLR PART 1647 PAGE 62 AT 79.
– SALE VS STATE (2016) 3 NWLR PART 1499 PAGE 392 AT 415 PARAGRAPH G.
– OLUSANYA VS OSINLEYE (2013) 12 NWLR PART 1367 PAGE 148.

RESOLUTION
Purchase and Assumption/Agreement was defined simply as an agreement to purchase the assets or properties of one person by another and to take over its debts and liabilities. It was argued on behalf of the 1st Respondent that it follows even without more that the Appellant having conceded that it entered into a purchase and Assumption Agreement with the NDIC who has the statutory role and was in charge of the Management of the defunct Bank PHB at the time the same Appellant cannot come before the Court to deny inheritance of the assets and liabilities of Bank PHB.

Sections 2 and 38 of the Nigeria Deposit Insurance Corporation Act was relied upon in this case, the claims of the 1st Respondent was set out earlier in this judgment. The Tribunal entered judgment in favour of the 1st Respondent which led to this appeal.
The 1st Respondent’s case was hinged on the alleged take- over, acquisition of assets and liabilities of Bank PHB by the Appellant. The Appellant in his own case denied that it was the successor of Platinum Habib Bank (PHB).
The position of the law here is that in proving that the Appellant acquired Bank PHB, it is only by placing documentary evidence before the Court.
In AFOLABI & OTHERS VS WESTERN STEEL WORKS LIMITED (2012) 17 NWLR PART 1329 PAGE 286, it was held among others that:
“The purchaser of a Company buys its assets and liabilities. To prove to the satisfaction of the Court that a Company had been bought by another Company the person who asserts must place before the Court documents from Corporate Affairs Commission to justify the assertion, Documents such as
(i) Instrument of transfer
(ii) Documents to show

acquisition of shares of the 1st Respondent by the 3rd Respondent
(iii) Filing of relevant papers.
In the absence of documentary evidence (above) credible evidence was led to show that the 3rd Respondent acquired or bought the 1st Respondent such an issue is never resolved solely on testimony on oath. There must be documentary evidence to support oral testimony, thereby making oral testimony more credible.
The Appellants as Plaintiffs failed woefully to discharge the burden of proof placed on them by law, Section 146 of the Evidence Act provides for the well-known principle of law that possession is prima facie proof of ownership. That is to say possession of the property in dispute (the 1st defendant company) is good title against anyone who cannot prove a better title.”
The Appellant before the Tribunal denied that it was the successor to Bank PHB, and put the 1st Respondent to the strictest proof of the allegations that it succeeded Bank PHB.
The 1st Respondent relied on only oral evidence without placing any document before the Tribunal. He did not give the appellant notice to produce any document to enable him tender secondary evidence of any necessary document.

In ABUBAKAR VS WAZIRI & OTHERS (2008) 14 NWLR PART 1108 PAGE 507, it was held among others that:-
“It is elementary law that where a party leads evidence as to the existence of a document in proof of his case, that document should be tendered. The original of the document should be tendered. In the absence of the original, a copy could be tendered in appropriate cases by way of secondary evidence. The law does not generally allow oral evidence to be led in proof of a document.”
Apart from the foregoing, the Appellant tendered in evidence Exhibits FDW2 and FDW3 see pages 80 and 81 of the Record of Appeal to show that it was incorporated on 3/8/2011, with a name change on 5/8/2011 and banking licence of the same date.
By Section 37 of the CAMA the Appellant came into existence on 3/8/2011, with the ability to sue and be sued but being a separate entity from its subscribers and shareholders.
See – S.T.B VS OLUSOLA (2008) 1 NWLR PART 1069 PAGE 561.
It is therefore clear that from Exhibit FDW2 and FDW3 referred to earlier in this judgment that the Appellant was not in

existence in 2008 when the 1st Respondent’s said share transactions took place. Furthermore, even though Bank PHB was defunct, it did not cease to be a legal entity capable of being sued. The 1st Respondent’s remedies also lay against the Directors of the Bank PHB and not Appellant in accordance with Section 93 of the Investments and Securities Act.
The Appellant denied taking the assets of Bank PHB including the said sum of N436,305,000.00 which was a liability therefore the burden shifted on the 1st Respondent to prove that the money was with the Appellant and this was not done.
See the following cases:-
– TRANSNATIONAL CORPORATION OF NIGERIA PLC VS EGBE & ANOTHER (2017) LPELR – 42243 CA PAGE 15 PARAGRAPH D.
– VULCAN GASES LTD VS GESELLSCHAFT F. INDUSTRIES (2001) 5 SCHJ PAGE 55.
In the circumstance, I am of the view that the Tribunal was wrong when it held that the 1st Respondent had proved his case and granted him the reliefs sought. The Tribunal’s decision is perverse.
Issues 5 and 6 are hereby resolved in favour of the Appellant and against the Respondent.

ISSUE NO. 7
Whether the 1st Respondent proved and was entitled to his claims for Pre-Judgment and Post Judgment Interest (Distilled from Grounds 16 and 17)

The learned senior Counsel for the Appellant submitted that the Tribunal erred when it awarded interest to the 1st Respondent. She submitted further a claim for interest must be specifically pleaded.

She relied on the following cases:
– EKWUNIFE VS WAYNE W. A. LTD (1989) 5 NWLR PART 122 PAGE 422 AT 445
– IZEHI PROCUREMENT LTD & OTHERS VS RICELAND INTERNATIONAL LTD & ANOTHER (2012) 16 NWLR PART 1325 PAGE 200 AT 219 PARAGRAPHS C-F.
– HAROLD SODIPO VS LEMNINKAINEN (1986) 1 NWLR PART 15 PAGE 222.
– OZIGI VS UNION BANK OF NIGERIA PLC (1994) 3 NWLR PART 333 PAGE 385.
– UBN VS ODUSOTE BOOKSTORES LTD (1995) 9 NWLR PART 421 PAGE 558.
– OMEGA BANK NIGERIA PLC VS. O.B.C LTD (2005) 1 SC PAGE 49 AT 72 – 74.
– VEEPEE INDUSTRIES LIMITED VS. COCOA INDUSTRIAL LIMITED (2008) 13 NWLR PART 1105 PAGE 486.

It was contended on behalf of the Appellant that the evidence given at the Tribunal was speculative and not specific on the rate of interest applicable as at the 18th April, 2008.

It was argued further that, while the Tribunal awarded compound interest on the alleged unreturned sum of N436,305,000.00 at the Central Bank of Nigeria minimum Rediscount Rate in operation as at 19/4/2008, there was no evidence before the Tribunal on the Central Bank of Nigeria Minimum Rediscount rate in operation as at 19/4/2008. The case of:- IZEHI PROCUREMENT LTD. & OTHERS VS. RICELAND INTERNATIONAL LTD. & ANO. (SUPRA) was relied upon.

On post judgment interest, the learned Senior Counsel for the Appellant stated that the 1st Respondent sought post judgment interest but that there was no pleading or evidence to justify the award of 10% interest.

It was argued further that there was no factual or legal basis for the award of Post Judgment Interest.
The Learned Senior Counsel for the Appellant urged that this issue be resolved in favour of the Appellant and hold that the award of Pre-Judgment and Post Judgment Interest were arbitrary and unlawful.

In his Response the Learned Senior Counsel for the 1st Respondent submitted that the 1st Respondent pleaded and sought for Compound Interest on the said sum of N465,350,000.00 as pre judgment

interest based on the Central Bank of Nigeria prevailing interest rate as at 2008. He went further that this kind of interest cannot be based on any agreement. He relied on the case of:- NPA VS. AMINU IBRAHIM & CO (2018) 12 NWLR PART 1632 PAGE 62 AT 87 – 88 PARAGRAPHS H – C.
It was submitted on behalf of the 1st Respondent that the 10% Post Judgment Interest is a fixed rate for the Tribunal which was claimed in the reliefs.

The Learned Senior Counsel for the 1st Respondent urged this Court to discountenance the submissions on behalf of the Appellant on pre-judgment and Post-Judgment interests and resolve issue No. 7 against the Appellant.

statute or contract agreement between the parties or based on mercantile custom or on principle of equity. Such claim of interest is normally pleaded and proved. See AG FERRERO & COMPANY LTD. VS. HENKEL CHEMICALS NIG. LTD. (2011) LPELR – 12 (SC).
ADEYEMI VS. LAN AND BAKER NIG. LTD (2000) 7 NWLR PART 663 PAGE 3 AT 48.
It is however a valid law that a Court can still grant Pre-Judgment Interest on a monetary or liquidated sum awarded to a successful party even in a situation where such a party did not plead or adduce evidence in proof of such claim. Such interest, like in this instant case, naturally accrues from the failure or refusal to pay the amount involved over a long period of time, thereby depriving a party from the use of and/or enjoyment of the sum involved which is the fruit of his Judgment. See – PETGAS RES LTD. VS. MBANEFO (2007) 6 NWLR PART 1081 PAGE 545.”
Also in – IZEHI PROCUREMENT LTD. & OTHERS VS. RICELAND INTERNATIONAL LTD. & ANOTHER (2012) 16 NWLR PART 1325 PAGE 200 AT 219 PARAGRAPHS C – F. It was held among others thus:-

…a party claiming a particular applicable rate ought to lay proper foundation in his pleadings before the Court and in addition, provide credible supporting evidence admissible in law and the evidence must accordingly originate either of the following sources – a bank agent,
– a certified document stating the applicable interest rate at the time of the transaction (or records of interest rates as kept by the Central Bank of Nigeria or Commercial Bank from which the interest rate derives).”
It is trite law that a Court cannot award to a Claimant what he did not claim or prove and a party who claims interest to be on safe side, has an obligation to support his claim with credible evidence.
In this case, the 1st Respondent in his pleadings (see pages 202 – 203 of the record of appeal) simply sought for compound interest at the Central Bank Minimum discount rate in operation (as at 19th April, 2008) commencing from 19th April, 2008 until the date of payment…
There was nothing before the Tribunal showing what the said Central Bank Rate Minimum Discount Rate in operation (as at 19th April, 2008) was and no proof of the said CBN minimum discount rate in operation.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In VEEPEE IND. LTD. VS. COCOA IND. LTD. (2008) 13 NWLR PART 1105 PAGE 486. It was held among others thus:-
“The deponent did not aver anywhere in the affidavit that the prevailing bank rate was 35% per annum, there was therefore, no proof of the rate of interest before the trial Court to support its award of 35%, in other words the interest awarded was not based on any evidence of the rate of interest claimable as at the time of the suit.”
As could be seen from the facts of this case and the findings of this Court, the 1st Respondent could not prove that he was deprived of the use of his money because he waived his rights and collected dividends and dematerialized this shares. Whereas in NPA VS. AMINU IBRAHIM (SUPRA). It was proved that the Claimant was deprived of the use of his money.
Therefore, the 1st Respondent is not entitled to Pre-Judgment Interest.
As for Post Judgment Interest, as I have held earlier in this judgment that the 1st Respondent has been unable to prove his claims before the Tribunal, he is therefore not entitled to any Post Judgment Interest.

In the circumstance, the award of Pre-Judgment and Post Judgment Interests by the Tribunal is hereby set aside.
This issue No. 7 is hereby resolved in favour of the Appellant and against the Respondents.

In the result, since issues 1 and 3 to 7 in this appeal were resolved in favour of the Appellant and issue No. 2 resolved in favour of the 1st Respondent, that notwithstanding, this appeal could have been allowed in part and the judgment of the trial Tribunal set aside and Claimant’s claim (i.e. 1st Respondent’s claim) dismissed. But, issue No. 1 borders on jurisdiction of the Investments and Securities Tribunal. I have held that the Tribunal ab initio lacked jurisdiction to entertain the matter as the conditions precedent to the exercise of its Jurisdiction i.e. “decision or determination of the Commission” was not met, therefore the Tribunal is incompetent to determine the 1st Respondent (i.e. Claimants) claim. See – OKOROCHA VS. UBA (SUPRA).

Accordingly, this appeal is allowed and the judgment of the Tribunal in suit No:- 1ST/LA/OA/02/2017 – Between DR. VINCENT O. EBUH VS. (1) KEYSTONE BANK LIMITED (2) SECURITIES AND EXCHANGE COMMISSION (3) MIDAS

STOCKBROKERS LIMITED delivered on the 17th day of December, 2018 is hereby set aside. In its place, the 1st Respondent’s claim (i.e. the Claimant) is hereby struck out.
There shall be no order as to cost. Each of the parties are to bear their own costs.

IBRAHIM SHATA BDLIYA, J.C.A.: I was afforded the opportunity of reading draft copy of the leading judgment just delivered by my learned brother, OLUKAYODE BADA, JCA. I entirely agree with the reasoning and conclusion arrived at in allowing the appeal. My learned brother has dealt with all the issues raised for determination in the appeal extensively and exhaustively, I need only to say few words on the issue of jurisdiction of a Court of law to adjudicate on any matter before it.
What is jurisdiction of Court of law? How is the jurisdiction of Court determined? When does a Court of law has the jurisdiction to adjudicate a matter? The answers to these questions, are provided hereunder. The BLACKS’ LAW DICTIONARY, 8th Edition page 867 by Brayan A GERNER defines jurisdiction of Court of law in these words “Court’s power to decide a case or issue a decree”.The Supreme Court in the case of

Oduko vs Governor, Ebonyi State (2009) 9 NWLR Pty 1147 P.441 @ 452 per Aderemi J.S.C, defined jurisdiction of a Court of law thus:
“jurisdiction is the legal power or authority which a Court must have to decide matters in a formal way for its decision. The limits of this legal power or authority are circumscribed by the Statute or Act of the National Assembly under which the Court is constituted and may be extended or restricted by similar means”
How is jurisdiction of a Court determined or ascertained? Or put it in another way, what are the ingredients of jurisdiction of a Court of law? This Court, in the case of Chris vs Ononuju (2008) 9 NWLR Pt. 1093 642 @ 65; per Tsamiya, J.C.A. said:
“The question, therefore is when is the Court competent and has jurisdiction to adjudicate the matter before it? The Supreme Court has spelt out in Madukolu vs Nkemdilim (1962)1 All NA P. 587 (1962) 2 SCNLR 341, the circumstances under which the Court can be regarded as having competence and jurisdiction, These are where:
1. The Court is properly constituted as regards number and qualification of the members of the bench;

The subject matter of the action is within the jurisdiction of the Court and;
3. The case before the Court is initiated by due process of law, or that the condition precedent to the exercise of jurisdiction is complied with.”
Therefore, a Court is said to have jurisdiction and therefore competent to determine a suit when:
a) It is properly constituted as regards number and qualification of the members of the bench and no members is disqualified for one reason or other;
b) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
c) The case comes before a Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
These preconditions for a Court to be seized of jurisdiction are conjunctive and the non-fulfillment or absence of any of them would automatically robs the Court of jurisdiction to hear and determine the suit. See Drexel Energy & N.R Ltd vs Trans Inter Bank Ltd (2008) 18 NWLR Pt. 1119 P.388 @ 417.

I, too, allow the appeal, notwithstanding the resolution of issue 2 in favour of the 1st Respondent, because the resolution of issue 1 in favour of the appellant which is an issue of jurisdiction of the Investment and Security Tribunal in adjudicating on the matter brought before it, the entire proceedings conducted is a nullity, “ab initio”. I abide by the order made on cost.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been privileged to read in advance a draft of the judgement just delivered by my noble lord, Jimi Olukayode Bada JCA., and I am in complete agreement with the lucid reasoning and the impeccable conclusion reached therein that the appeal has merit and therefore, ought to be allowed.

My lords, the issue of jurisdiction is so fundamental that a word in addition to the adroit reasoning marshalled out in the lead judgment would still not be out of place. It is only in this sense I shall say a few words of mine in support of the very comprehensive lead judgment.
The thrust of issue one, to my understanding, is that the Lower Tribunal lacked the jurisdiction to hear and determine, as it did the claims of the Respondent in that the salient conditions precedent for the exercise of its jurisdiction had not been fulfilled to enable it assume jurisdiction over the claims of the Respondent.

In law, jurisdiction is the life wire, the life blood and the very soul of every cause or matter. A Court is therefore, competent only and only when all the conditions precedent to the exercise of its jurisdiction have been fulfilled. Thus, an issue of jurisdiction can be raised either by any of the parties or even suo motu by the Court and once raised must be resolved by the Court one way or the other before the merit of the cause or matter is considered and resolved if there be competence in the cause or matter and thus, not robbing the Court of its jurisdictional competence. See Madukolu V. Nkemdilim (1962) 2 All NLR 581. See also Okereke V. Yar’Adua (2008) All FWLR (Pt. 430) 25; Onuorah V. Kaduna PRC Ltd (2005) All FWLR (Pt. 256) 1; Western Steel Works Ltd. V. Iron & Steel Workers Union (1986) 2 NSCC (Vol. 17) 786.
In Petro Jessica Ltd. V. Leventis Trading Co. Ltd. (1992) 5 NWLR (Pt. 244) 693, the Supreme Court puts it so succinctly thus:
“Jurisdiction is the very basis on which any Tribunal tries a case. It is the life line of all trials. A trial without jurisdiction is a nullity.”

Now, going by the very clear provisions of Section 284 (1) of the Investments and Securities Act 2007 it seems obvious to me, and I so hold, that the Respondent was not at liberty to approach the Lower Tribunal without first and foremost complying with the conditions precedent set forth in the said law. In law, when a person intends to take benefit of the provisions of a statute conferring some rights which are enforceable in a Court of law, and if there be any conditions precedent stipulated therein, I would think that such conditions precedent must be painstakingly fulfilled before such an action, brought pursuant to the said Act would enjoy competence and validity in law. In other words, it would be foolhardy for a party to whilst rushing to Court to make a claim pursuant to a statute would fail or refuse to comply with the conditions precedent for the exercise of that right of action. I have used the word ‘foolhardy’ very advisedly to underscore the resultant effect of non-compliance with such conditions precedent on an action commenced by such a party.

My lords, from the provisions of Section 284 of the Investment and Securities Act 2007, the Lower Tribunal can only validly exercise its exclusive jurisdiction when there has been a decision or determination of the Commission through its Committee and confirmed by the Commission in relation to the matters set out in Section 284 (1) (a) – (iv) as well as or under any of the Circumstances as set out in Section 284 (1)(b) – (f) and or any other matter as may be prescribed by an Act of the National Assembly.
In the instant appeal, going by the claims of the 1st Respondent, was the claims before the Lower Tribunal competently before it? In other words, did the 1st Respondent complied with the requirements of the provisions of Section 284(1)(a)(i) – (iv) in the commencement of its action against the Appellant? So, was there any decision or determination by the relevant Committees, being the Administrative Proceedings Committee on the complaints or grouse of the 1st Respondent before it commenced its action before the Lower Tribunal? To all these pertinent questions, the answer, in my finding, is a resounding no! In law, these conditions being conditions precedent as stipulated by the statute itself conferring

the right of action on the 1st Respondent as well as the exclusive jurisdiction on the Lower Tribunal must, as of necessity, be complied with to clothe the Lower Tribunal with the requisite jurisdiction to hear and determine the claims of the 1st Respondent. Thus, the 1st Respondent having failed or neglected to comply with these conditions precedent robbed the Lower Tribunal of its jurisdiction and I so firmly hold. see Okorocha V. UBA (2018) 17 NWLR (Pt. 1649) 441 @ p. 454. see also Oni V. Administrative Proceedings Committee & Another (2014) 13 NWLR (Pt. 1424) 351; Igbrude V. Ecobank Limited (2018) LPELR -45563 (CA).
It is no longer of any dispute or of any serious contention in our law that for a Court or any adjudicative Body or Tribunal to have requisite jurisdictional competence over the claim of a party, then the Court or Tribunal must be properly constituted; the subject matter of the action must be within the Court’s Jurisdiction; there must be no feature in the case which prevents the Court from exercising its jurisdiction; and indeed the action must be initiated by due process of law and upon fulfillment of any condition precedent to the

exercise of the Court’s jurisdiction. Thus, and most importantly, any defect in the fulfillment of any of these salient conditions precedent, which must co- exit, is fatal to the jurisdiction of the Lower Tribunal. See Madukolu & Others V. Nkemdilim (1962) All NLR 581 @ p. 582.
My lords, once a Court or Tribunal properly established by law is robbed of its jurisdiction on account of non- fulfillment of one or more of the above conditions precedent as required by law, then that is the end of the matter as any efforts spent thereafter either by the parties and their Counsel on the one part and the Court on the other part would amount to nothing but laboring in vain. It is all a nullity and indeed nullity upon nullity remains a nullity and nothing more in the eyes of the law and therefore, of no legal effect whatsoever the outcome of such a null proceedings may be.

I recall that it was argued, and forcefully too, that issue one though raised at the Lower Tribunal by way of preliminary objection was deemed abandoned and consequently did countenanced by the Lower Tribunal. It was also argued elsewhere that this issue was being raised for the first

time in this Court and that prior leave of this Court having been sought and obtained to raise it render it incompetent. I think these contentions are not in sync and/or in line with the extant position of the law on these issues as are in a legion of decided cases as are replete in our law reports. Nowadays, the law is that, once a ground of appeal touches on an issue of jurisdiction, which is clearly an issue of law, it can be filed or raised without the leave of Court and is valid and so also is the issue of whether the ground of jurisdiction arises from the decision in the judgment appealed against or not is of no moment once it touches on the competence of the matter or the jurisdiction of the Court to hear and determine the matter as it did in the judgment being appealed against.
An issue of jurisdiction, being a threshold issue, can be raised for the first time on appeal and no leave of law whatsoever is required to make it competent. This is so because whether the parties or the Lower Tribunal or even this Court likes it or not, once there is no jurisdiction there would be no legal competence in the Court or Tribunal to adjudicate on such a claim

and it is immaterial whether it was raised by either of the parties or suo motu by the Lower Tribunal, but once it is raised before this Court, we are under a duty to resolve it first one way or the other.
In law therefore, no leave of Court is required to file a ground of appeal raising an issue of jurisdiction. I hold firmly therefore, that issue one as distilled in the Appellant’s brief being one challenging the jurisdiction of the Lower Tribunal, can be raised without the leave of Court by virtue of the provisions of Section 241(1)(b) of the Constitution of Nigeria 1999 (as amended), which provides thus:
“241(1): -An appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-
(b) Where the ground of appeal involves questions of law alone decisions in any civil or criminal proceedings.”
See Ene V. Asikpo (2011) FWLR (Pt. 553) 1907 1933. See also Anachebe V. Ijeoma & Ors (2015) 240 LRCN 69 96; Nwadike & Ors. v. Ibekwe & Ors. (1987) 2 NSCC1218; Coker v UBA Plc. (1997) 2 NWLR (Pt. 490) 641.

My lords, interestingly, the law as it stands today is that an issue of jurisdiction can not only be raised suo motu but can also be determined suo motu by the Court without even calling upon the parties to address it and that such a decision would not be said to have been reached in breach of any of the party’s right to fair hearing! See Oni V. Fayemi & Ors 2019 LPELR – 49299 (SC). See also Effiom V. Cross River State Independent Electoral Commission (2010) LPELR – 1072 (SC); Tukur V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517.

Now, since competence is the soul and epicenter of the litigation process, for without competence there can be no validity in adjudication, whether an issue of lack of jurisdiction was abandoned after it has been raised before the Lower Tribunal or not, once it is raised again before this Court, it becomes paramount that it must be resolved first one way or the other notwithstanding the failure of either the party who raised it before the Lower Tribunal from following it up with necessary arguments or the failure or neglect of the Lower Tribunal to still go ahead to first determine if really it had the jurisdiction or not before proceeding to consider and determine the merit of the claims before it.

It is for the above few words of mine and for the fuller reasons adroitly set out in the lead judgment that I too hold that this appeal has merit and ought to be allowed. Accordingly, I too hereby so allow it. Consequently, I also hereby set aside the judgment of the Lower Tribunal in 1st/LA/OA/2/2017: Dr. Vincent O. Ebuh V. Keystone Bank Limited & Ors on 17/12/2018.
I shall abide by the consequential orders made in the lead judgment, including the orders as to no cost.

Appearances:

MRS. M.A. ESSIEN, SAN, with him, A.O. OWOLABI, ESQ and G. OGUNYEMI, ESQ. For Appellant(s)

S.S. AMEH, SAN, with him, ISAAC EKPA, ESQ. and J.T. ITODO, ESQ. – for 1st Respondent
CHIEF PHILIP NDUBUISI UMEH, with him, MRS. E.C. OBIORA – for 2nd Respondent For Respondent(s)

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