NOSPETCO OIL & GAS LIMITED V. PRINCE MATILUKO EMMANUET OLORUNNIMBE & ORS
(2011)LCN/5017(CA)
In The Court of Appeal of Nigeria
On Monday, the 19th day of December, 2011
CA/L/474/11
RATIO
A JOINT OR COLLECTIVE INVESTMENT SCHEME: MEANING OF A JOINT OR COLLECTIVE INVESTMENT SCHEME
Section 153 (f) (a) of the Investment and Securities Act, 2007 defines a “Joint” or “collective” investment scheme as follows: “Collective investment scheme” means a scheme in whatever form, including on open-ended investment company in pursuance of which members of the public are invited or permitted to invest money or other assets in a portfolio, and in terms of which: a) Two or more investors contribute money or other assets to and hold a participatory interest in a portfolio of the scheme through shore, units or any other form of participatory interest; b) The investors shore the risk and the benefit of investment in proportion to their participatory interest in a portfolio of a scheme or on any other basis determined in the deed; but not a collective investment scheme authorized by any other Act.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
FAIR HEARING: WHAT ARE THE TWIN CARDINAL PRINCIPLES OF FAIR HEARING
It is now trite to assert that the twin cardinal principles of fair hearing are expressed in the two maxims (a) audi alterem partem – that the judge before whose court the complaint or grudge is taken, must hear the two parties to the dispute and (b) nemo judex in causa sua – that there should be no evidence of bias, so that one should not be a judge in one’s own cause. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
FAIR HEARING: POSITION OF THE COURT ON SOME OF THE BASIC CRITERIA AND ATTRIBUTES OF THE PRINCIPLE OF FAIR HEARING
In KOTOYE V. C.B.N. supra at Pg 444 paras E-H, the Supreme Court stated some basic criteria and attributes of fair hearing. They are: (i) That the court shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case. See SHELDON V. BROWN FIELD JUSTICES (1964) 2 Q.B. 573 at Pg 578; (ii) That the court or tribunal shall give equal treatment, opportunity, and consideration to all concerned. See ADIGUN V. A.G. OYO STATE & ORS (1987) 1 NWLR (Pt. 53) 678; (iii) That the proceedings shall be held in public and all concerned shall have access to and be informed of such a place of public hearing; and (iv) That having regard to all the circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done; RV SUSSEX JUSTICES, EXPORTE MC-CARTHY (1924) 1 KB 256 at 259; DEDUWA & ORS v. OKORODUDU (1976) 10 SC 329. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
DUTY OF COURT: WHETHER A TRIAL JUDGE MUST GIVE SEPARATE OPINION ON EVERY SINGLE ISSUE RAISED DURING THE COURSE OF A TRIAL
It is not necessary or compulsory for a trial judge to give separate opinion on every single issue raised during the course of a trial, in so far as it is obvious that before arriving at its decision it was aware of the arguments in relation to these sundry issues and the court took cognizance of these issues. A corporate rendition of the opinion of the trial court on all issues should suffice where it is shown that the judge took into consideration these issues before arriving at its conclusion. In this case, the Tribunal set out the submissions of both counsel on all these issues before it went on to determine the crux of the matter before it. The court is at liberty to lump together multiple issues and consider them together although generally it is desirable to consider each issue distinctly on the merit. See ETAJATA & ORS V. PETER I. OLOGBO (2007) 6 SCNJ 462. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
ABUSE OF COURT PROCESS: CONDITIONS THAT MUST BE SATISFIED IN ESTABLISHING AN ABUSE OF COURT PROCESS
There is no doubt that when a suit constitutes an abuse of court process it must be struck out. In the case of SARAKI V. KOTOYE (1992) 9 NWLR (Pt.264) SC 156, it was held that the circumstances of what can constitute an abuse of court process are not closed or exhaustive. In essence, the three conditions to satisfy to establish an abuse of court process are that: two suits are instituted and pending simultaneously which have: i. The same subject matter/cause of action; (ii) the same parties. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
RESPONDENT’S BRIEF: CIRCUMSTANCE IN WHICH A RESPONDENT MAY FILE A RESPONDENT’S NOTICE; CONSEQUENCE OF THE RESPONDENT NOT FILING AN APPEAL AGAINST A JUDGMENT
A Respondent’s brief must willy nilly support the judgment. Where a Respondent is dissatisfied with a portion of the judgment which does not favour him, he is to file a cross appeal. Where a Respondent is dissatisfied with the ratio of a judgment but which overall favours him, he may file a Respondent’s Notice to contend that the judgment be upheld on appeal on other grounds than those given in the judgment. The 15th and 16th Respondents were Defendants at the Tribunal and the ruling of the Tribunal did not favour them. They did not file an appeal against the ruling. Therefore neither can be heard to attack on appeal the ruling of the Tribunal having not appealed against it. The brief was filed in complete misconception of the law and it is hereby struck out – see Minister PMR V. EL NIG LTD (2010) 12 NWLR pt. 1208 pg 261; OGUNSOLA V. NICON (2010) 13 NWLR pt. 12211 PG 225; I. H. LTD v. SONEB ENT LTD (2010) 4 NWLR Pt.1185 Pg 561. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
MOHAMMED DANJUMA Justice of The Court of Appeal of Nigeria
Between
NOSPETCO OIL & GAS LIMITED Appellant(s)
AND
1. PRINCE MATILUKO EMMANUEL OLORUNNIMBE
(National President, NOSPECTO Investors Forum)
2. COMRADE BADEJO KENNY ROWLAND
(National P.R.O. NOSPECTO Investors Forum)
3. MRS. VICTORIA OMOTUNDE GEORGE
(National Executive, Women Leader,
NOSPECTO Investors Forum)
4. ISHATAYO TAOFEEK AKANNI
(National Executive Member, NOSPECTO
Investors forum-south WEST)
5. GEORGE USHIE
(National Executive Member, NOSPECTO
Investors forum-south East)
6. JOHN IGHO
(National Executive Member, NOSPECTO
Investors Forum-south WEST)
7. JOSHUA ZAMANI KANWAI
(National Executive Member, NOSPECTO
Investors Forum-North Central)
8. WADA PATRICK FWA
(National Executive Member, NOSPECTO
Investors Forum-North East
9. ALHAJI ABUBAKAR BUBA
(Chairman, Kano Investors Forum)
10. YAKUBU S. LAWAL
(Chairman, Abuja Investors Forum)
11. COL. GIL SESE
(National Secretary, NOSPECTO Investors Forum
12. HAJIYA BILIKISU HARUNA RAWAYAU
(Co-ordinator, Katsina Investors Forum)
13. OLORUNFEMI ADESINA BIODUN
(Co-ordinator, South-West Investors Forum)
14. ADEDEJI ADEGOKE TAWRENCE
(Co-ordinator, Nigerians in Diapora, NOSPECTO
Investors Forum)
(For themselves and on behalf of all
Investors in NOSPECTO Oil & Gass Ltd
otherwise known as ? JOINT VENTURE PARTNERS?)
15. SECURITIES AND EXCHANGE COMMISSION
16. CENTRAL BANK OF NIGERIA Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment): This is an appeal against the interlocutory ruling of the Investment and Securities Tribunal delivered on 13th April, 2011 dismissing the Appellant’s Notice of preliminary objection dated 25th November, 2010. The facts which led to this appeal are as follows:
The Applicants now 1st-14th Respondents had filed their originating application on 7th September, 2010 seeking the following reliefs against the Appellant and the 15th and 16th Respondents:
“1. Declaration that the Applicants are entitled to know the total amount frozen from the 3rd Respondent’s accounts in various Commercial Banks in Nigeria including but not limited to Zenith Bank Plc, First Bank Plc, Union Bank Plc, UBA Plc, Skye Bank Plc, Intercontinental Bank Plc, and Oceanic Bank Plc by the 1st Respondent since May, 2007.
2. A declaration that Applicants are entitled to know the total amount of money frozen from the 3rd Respondents account in various commercial Banks in Nigeria by 1st Respondent and kept with 2nd Respondent.
3. A declaration that continued withholding of the amount so frozen from the accounts of the 3rd Respondents by the 2nd Respondent without releasing some to the Applicants on demand is unlawful and inimical to the overriding interest of the Applicants.
4. A declaration that the refusal omission and/or failure of the 1st Respondent to release the salvaged fund to the Applicants on demand is contrary to its statutory duty to protect the interest of the Applicants as spelt out in section 13 (i) and (k) of ISA 2007 and the judgment of the Investments and Securities Tribunal Holden in Abuja in case No. IST/OA/19/07 between the 3rd Respondent as also a Respondent whereby it is stated inter alia that: “The Respondent has the statutory duty to protect investors including those that invested through the Applicant”.
5. A declaration that the continued refusal, omission and/or failure of the 2nd Respondent to release the money in its custody to the Applicants despite the repeated demand and numerous representation amount to insensitivity to the plight of the Applicants, legally indefensible and morally wrong.
6. An order of this Honourable Tribunal compelling the 1st and 2nd Respondents to release without further delay all the amount so frozen from the 3rd Respondent’s account in their custody to the Applicants for immediate disbursements forthwith.
7. An order mandating the 2nd Respondent to disclose the total amount in its custody based on the directive of the 1st Respondent with accrued interest since 2007 up to date and release same to the Applicants immediately.
8. An order compelling both the 1st and 2nd Respondents to set up without further delay on ad-hoc committee comprising the 1st and 2nd Respondents, the Applicants, the Legal Representative to the Applicants, the office of the Auditor-General of the Federation and Nigerian Police from special fraud units, Milverton, Ikoyi, Lagos to disburse the amount so recovered to the Applicants prorate.
9. An order compelling the 3rd Respondent to stop forthwith its illegal, unlawful and fraudulent business and banking activities which it has been relentlessly carrying on under cover and clandestinely since May, 2007 after its operation were haulted (sic) by the 1st Respondent and refund the money invested by the Applicants accordingly.
10. An order of this Honourable Tribunal awarding the sum of N=2million as cost of instituting and prosecuting the application, travelling expenses to Abuja by the Applicants and their Legal Representatives to plead, ask, request and demand for the release of their money in the custody of the 1st and 2nd Respondents. And any other reliefs as the Honourable Tribunal deems fit.”
On the 25th November 2010, the Appellant, as the 3rd Respondent at the Tribunal, filed its responses together with a notice of preliminary objection to the 1st – 14th Respondents’ originating processes.
On 13th December 2010, the 1st – 14th Respondents filed their reply to the Appellant’s notice of preliminary objection.
On the 25th January 2011, the Appellant filed its reply on points of law to the 1st- 14th Respondents’ reply to its notice of preliminary objection.
Arguments were taken on the objection and a considered ruling was given thereon on 13th April, 2011.
Being dissatisfied with the said ruling, the Appellant appealed to this Honourable court by filing a notice of appeal dated 21st April, 2011.
On or about 26th May, 2011, the Registrar of the Tribunal compiled and transmitted the record of appeal to the Registry of this Honourable court.
The Appellant’s brief was filed on 6th July, 2011. The Appellant’s Reply Brief was also filed on 12th August, 2011. The 1st – 14th Respondents filed a joint Respondent’s brief on 2nd August, 2011. The 15th Respondent’s brief was filed on 2nd August, 2011 while counsel to the 15th Respondent did not file any brief but aligned herself with the opinion of the 16th Respondent with whom she shares interest.
In the Appellant’s brief settled by Mr. Shamsudeen Abubakar Esq, Mumini Bamidele Esq and Miss E. D. Andah, five issues were distilled for determination and are set out below:
“i. Whether Exhibit “A” attached to the originating application dated 7th September, 2010 established a Collective Investment
Scheme/Agreement as contemplated by sections 153 (1), 284 (1) (f) and 315 of the Investment and Securities Act, 2007 as to confer jurisdiction on the Tribunal, (Grounds 1, 2, 3 and the second ground ‘8’(i);
ii. Whether the Appellant’s right to fair hearing was not breached by the Tribunal in the hearing and determination of its notice of preliminary objection. (Ground 5);
iii. Whether the Tribunal has the jurisdiction to entertain the 1st – 14th Respondents’ reliefs as presently framed/sought. (Ground 6);
iv. Whether the suit founded on simple contract could be instituted in a representative capacity.
(Ground 7);
v. Whether the suit is not an abuse of court process same having being instituted during the pendency of suit No. FHC/L/CS/408/2009 between ABIODUN ADEBOWALE & 211 ORS v. NOSPECTCO OIL & GAS LTD & 27 ORS at the Federal High Court, Lagos (the 1st Ground 8).”
The 1st – 14th Respondents also identified almost verbatim the same issues for determination.
I have looked at the grounds of appeal and I am of the view that the issues as distilled by the Appellant are relevant and concise for the determination of this appeal and I will adopt them in doing so.
ISSUE ONE
Learned Appellant’s counsel argued that since jurisdiction confers life on the court, where the court lacks jurisdiction every labour in the temple of justice is in vain. He cited OLORUNTOBA-OJU V. ABDUL-REAHEEM (2009) 13 NWLR Pt. 1157 SC 83 at 124-125; PETROJESSICA V. LEVENTIS (1992) 5 NWLR Pt. 244 Pg. 675 at 593; OBI V. INEC (2007) 11 NWLR Pt. 1046 Pg. 436 at 482 were cited in aid of their proposition
Learned Appellant’s counsel further argued that the cause of action in the suit that led to this appeal could therefore be determined by having recourse to the 1st to 14th Respondents’ originating application dated 7th September, 2010 as well as the written statement on oath deposed to on 7th September, 2010 at pages 1 to 117 of the record of appeal vol.1, which serves as the statement of claim or pleading at the tribunal.
The argument of counsel is that paragraphs VII-XII are the most important in determining the cause of action before the Tribunal and that Exhibit A the written agreement is the basis of the cause of action instituted by the 1st – 14th Respondents against the Appellant and the basis of the decision of the Tribunal.
Counsel argued that the simple doctrine of privity of contract which is undisputable is that a stranger who is not a party to a contract could not sue on it to seek any redress, even if the contract was made for its benefit. Counsel cited the cases of A.G. OF FEDERATION V. A/C LTD (2000) 4 WRN 96 at 103 Lines 20- 40; 2000 10 NWLR (Pt. 675) 293 at 311; L.S.D.P.C. V. N.L. & F. LTD (1992) 5 WNLR Pt. 244 653 at 669-670 paras F-B and ILESA L.G.A. V. OLAYIDE (1994) 5 NWLR Pt. 342 Pg.91 at 103 -104 paras D-G and AGBAREH V. MIMRA (2008) ALL FWLR Pt. (409) 559 at 586 paras B-E among other cases to support this principle of law.
Counsel pressed the view that since the parties to Exhibit A are two, namely the Appellant and one Mrs. S. A. Umar, by the principle of privity of contract as stated above, the 1st – 14th Respondents are not signatories/parties to Exhibit A, and as such they have no locus to institute the suit at the Tribunal. The Tribunal was thus wrong to have heavily relied on Exhibit A to determine the relationship between the 1st – 14th Respondents and the Appellant and come to the conclusion that the relationship between the parties is that of collective investment scheme.
Learned counsel further argued that a mere examination of Exhibit A, even if it is taken to be relevant at all, does not in any way qualify as a COLLECTIVE INVESTMENT SCHEME (“the scheme”) as contemplated under section 153, 284 (1) (f) and 315 of Investment and Securities Act, 2007 (“ISA”)
Counsel argued that it is not in dispute that section 284 (1) (f) of ISA gives exclusive jurisdiction to the Tribunal in the determination of “disputes arising from the administration, management and operation of collective investment scheme”, however, the collective investment scheme referred to in section 284 (i) (f) of ISA means the scheme as defined in sections 153 & 315 and governed particularly by sections 154 to 196 of ISA. They opined that this is however different from the subject matter of the suit in this appeal.
Appellant’s counsel posited that to give effect to a section of the law, the whole legislation must be read together. They cited EGOLUM V. OBASANJO (1999) 7 NWLR Pt. 611 Pg. 355 at 405 and AGBAREH V. MIMRA supra, it is also their argument that for any arrangement between two or more persons to qualify as a collective investment/agreement scheme under sections 253 and 315 of the Act, the community reading of sections 13, 38, 54 152 to 196 among other sections of the Act shows that such an arrangement must have all the ingredients/features among others enumerated in those sections (i.e. 13, 38, 54, 152 to 195).
Appellant’s counsel is of the view that even though the 1st to 14th Respondents admitted by paragraph IV of their written statement on oath, at page 22 of the record of appeal Vol. 1, that the 15th Respondent is the apex regulatory body and established mainly to control the activities of capital market operators at the Nigerian Capital Market, they have however woefully failed to plead a single fact/relief to the effect that their alleged investment with the Appellant was done at the Nigerian Capital Market or that any of them or the Appellant is a capital market operator as to warrant the application of the provisions of ISA to the transaction in question.
Counsel argued that the agreements between the Appellant and the 1st – 14th Respondents are mere simple contracts and cannot qualify as a collective investment scheme. Counsel submitted that it is wrong in law to read into the agreement the terms which the parties thereto did not agree to. There is nothing in Exhibit A which suggests that the parties thereto intended to be governed by the provision of the Investments and Securities Act 2007 and the court cannot read into the agreement what was not contained therein. The following cases were cited OLATUNDE V. O.A.U. (2008) 5 NWLR Pt. 549 Pg. 178 at 191, AGBAREH V. MIMRA supra at Pg. 586; AMADI V. CHIMDA (2009) 10 NWLR Pt. 1148 Pg. 107 at 124-125; NIKA FISHING CO. LTD V. LAVINA CORP (2008) ALL FWLR Pt. 437 Pg. 1 at P9.25.
Counsel argued that by virtue of the unlimited jurisdiction conferred by section 272 of the Constitution on a state High Court, it is the State High Court that has the jurisdiction over any claim formed on contract as confirmed by the Supreme Court in the cases of ONUORAH V. KADUNA REFINERY CO. (2005) 6 NWLR Pt. 921 Pg 393 at 405; U.P.S V. ADEYOSEYE (2011) 5 NWLR Pt. 1240 Pg. 314 at 329; N.M.R. V. AKIN-OLUGBADE (2008) 5 NWLR Pt. 1079 Pg. 58 at Pg. 92.
In the 1st – 14th Respondents’ brief settled by Debo Adeleke Esq, learned counsel in reply to issue one, argued that Exhibit A attached to the originating application dated 7th September, 2010 established a collective Investment Scheme /Agreement as contemplated by sections 153 (1), 284 (1) (f) and 315 of the Investment & Securities Act, 2007 (ISA) and thereby confers jurisdiction on the lower court (the Tribunal). Counsel said that this is because the said Exhibit A falls within the purview of section 284 (1) (f) of ISA which confers exclusive jurisdiction on the tribunal to adjudicate in a dispute arising from the administration, management and operation of collective investment schemes.
Right from the heading of the Exhibit A titled “NOSPETCO JOINT VENTURE SERVICES UNIT” as contained on pages 28 to 29 of the Record of Appeal, it is self evident that the nature of business relationship between the Appellant (NOSPETCO) and its numerous investors is that of a collective investment scheme.
Counsel argued that the very wordings in Exhibit A include words like “Joint Venture” “investment” and “investor”.
Counsel also contended that the reference by the Appellant to section 38 and section 71 of the Companies and Allied Matters Act 1990 is misleading as section 71 does not confer any right on the Appellant to approach the public for funds in the spirit of collective investment scheme.
Learned counsel for the 1st- 14th Respondents conceded the issue of jurisdiction being the bedrock of any adjudication. Counsel then submitted that from a long line of judicial decisions, it has been well established that for a court to have jurisdiction, the following conditions must be present:
i. The proper parties are before the court.
ii. The subject matter falls within the jurisdiction of the court.
iii. The composition of the court as to members and qualification.
iv. The suit be commenced by due process of law.
Learned counsel cited on this point the following cases: C.B.N. V. S.A.P. LTD (2005) 3 NWLR (pt. 991) pg. 152, MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341, SKEN CONSULT V. UKEY (1981) 1 SC 6, Counsel then submitted that the above conditions have been fulfilled by the 1st – 14th Respondents. For example, on the issue of parties, both the 1st- 14th Respondents and the Appellant as well as other Respondents are proper parties before the lower court without whom this matter cannot be effectively and judiciously determined.
Counsel argued that section 284 of the Investment Securities Act 2007 is the most appropriate section under which the subject matter between the parties can be adjudicated upon. Learned counsel also drew the attention of this court to the decision of the Tribunal in the earlier suit No ISST/OA/19/07 between the Appellant and Securities Exchange and Commission, that is NOSPECTO OIL & GAS LTD V. SECURITIES AND EXCHANGE COMMISSION wherein the Tribunal held that the Applicant was carrying on a collective Investment Scheme. The Appellant never appealed against that finding and it is bound by it. Counsel cited R. BENKAY NIG LTD V. CADBURY (NIG) PLC (2006) 6 NWLR; ABACHA V. FAWEHINMI (2000) 6 NWLR Pt. 560 Pg 228 at Pg. 381; OJO V. INEC (2008) 13 NWLR Pt. 1105 Pg.577; OSAKWR V. INEC (2005) 13 NWLR Pt.942; SPDC NIG LTD V. XM FEDERAL LTD (2006) 15 NWLR Pt. 1004 Pg. 189; AKINYEMI V. SOYANWO (2005) 13 NWLR Pt. 998 Pg.496; SHUGABA V. UNION BANK (1999) 11 NWLR Pt. 627 at 459.
On the issue of privity of contract, learned counsel argued that the inclusion of the name of Mrs. S. A. Umar confirms that the 1st – 14th Respondent brought the action in a representative capacity. This is because Mrs. Umar’s name shows she is not a member of the executive of NOSPETCO investors even though the name is contained as 12192 in the list of Registered Investors.
Counsel argued that the Appellant had initially conceded and begged the 1st -14th Respondents to exercise patience in this matter. Counsel submitted that by the previous admission of the Appellant, it is apparent that the 1st -14th Respondents have always been recognized by the Appellant and that Exhibit A referred to is a common and binding factor to the investors. The Exhibit A is a mere sample of the agreement executed between the Appellant and all the 1st – 14th Respondents who are representing 13,604 other investors.
Let us look at the circumstances of this case in the light of the argument whether or not there is a collective investment scheme between the Appellant and the 1st – 14th Respondents. In the first instance, the agreement signed by the Appellant and each of its numerous investors is titled “Nospetco Joint Venture Services UNIT”. Part of Exhibit A reads as follows:
“Now it is hereby agreed as follows:
1. The J.V. partner has provided the sum of Four Hundred and Fifty Thousand Naira only (N=450,000) for (1) slot. (The sum is hereinafter called “the Partner’s Funds”)
2. Each slot will yield a return of Forty Thousand Naira only (N=40,000) per month for the partner, for every full month operating period.
3. The J.V. Partner shall provide a bank account into which the yield will be paid.
4. NOSPETCO shall employ this sum to purchase and supply industrial fuels.
5. Industrial disputes and production constraints could cause a stop-age in operations. Where this happens, the returns for that period will be prorated. If the situation lingers, the partner shall be duly informed and the partner’s funds refunded.
6. On demand, J.V. partner shall be issued periodic operating reports indicating the status of the JV business.
7. This understanding could be terminated wholly or partly at the instance of either party upon due notification, the investment must be at least for five months. Where this happens partner’s funds shall be returned within two weeks.
8. Depending on prevailing operating costs variables, NOSPETCO, the JV services company shall be entitled to vary the monthly yield payable on a slot or the value of a slot. Where this happens the JV investor will be duly informed at least one month before the change is effect.”
Throughout the above document the investor was referred to as a Joint Investor with the Appellant. What does the law say in this regard? Section 153 (f) (a) of the Investment and Securities Act, 2007 defines a ‘Joint” or “collective” investment scheme as follows:
“Collective investment scheme” means a scheme in whatever form, including on open-ended investment company in pursuance of which members of the public are invited or permitted to invest money or other assets in a portfolio, and in terms of which:
a) Two or more investors contribute money or other assets to and hold a participatory interest in a portfolio of the scheme through shore, units or any other form of participatory interest;
b) The investors shore the risk and the benefit of investment in proportion to their participatory interest in a portfolio of a scheme or on any other basis determined in the deed; but not a collective investment scheme authorized by any other Act.” If the investors share the risk and benefit as stipulated in section 153 (1) (b) above, then it is obvious that the investors in the Appellant’s scheme who agreed to share the loss where for example as stipulated in paragraph 5 of Exhibit A, Industrial dispute cause distruptions in operation are joint venture partners within the meaning of collective investment scheme as defined by the ISA Act 2007. Section 38 and 71 of CAMA in my humble view are irrelevant in the circumstances. Section 38 provides that a company can enter into an agreement with a natural person. Section 71 provides for the mode of contracts by a company incorporated under the Act. Neither confers any right on a company to approach the public with collective investment schemes.
In initiating the action subject of this appeal, the 1st – 14th Respondents filed an originating application dated 7th September, 2010 as well as a written statement on oath deposed to on 7th September, 2010 at page 1-117 of the Record.
The summary of learned Appellant’s argument on the issue of whether the 1st – 14th Respondent were engaged in a collective Investment Scheme to make their agreements come within the scope of a collective investment scheme is that Exhibit A does not qualify as such by virtue of section 253 and section 315 of the ISA. He also opined that the agreement Exhibit A does not show that the parties’ agreement was made in contemplation of the fact of whether or not the Appellant is a capital market operator.
That argument of learned Appellant’s counsel is in my humble view misconceived being based on the alleged non compliance by the Appellant and the Respondents with the provisions of the ISA. If the Appellant as protagonists in the drama who engaged in activities that led to this suit, deceived the 1st – 14th Respondents into an illegal scheme, it cannot turn around to claim that illegality to avoid the contract between the parties. See UNION BANK V. AYODARE & SONS (2007) 4-5 SC 42; SAVANNAH BANK V. AJILOH (1989) 1 NWLR Pt. 97 Pg 305.
On the issue of privity of contract between the Appellant and 1st – 14th Respondents, it is clear that the Exhibit A referred to by the Appellant in paragraph 4:10 in the Appellant’s brief in the name of Mrs. S. A. Umar further confirms that the 1st – 14th Respondents initiated and maintained this action in a representative capacity. This is despite the fact that the name of Mrs. Umar does not appear as a member of the executive of the NOSPETCO investors forum on the court processes.
However, the name of the said Mrs. S. A. Umar is contained in the list of Registered investors on page 343 with serial No. 12192 of the application for Accelerated Hearing dated 10th June, 2011 before the Tribunal. The name was equally contained in the Applicant’s Amended Originating Application.
The investors came together and nominated representatives who are representing them in court and I do not think in these circumstances the Appellant can challenge the basis of their representative action. See SHELL PETROLEUM V. EDAMKUE & ORS (2009) 14 NWLR Pt. 1160 Pg. 1.. Indeed a representative action is tidier and would aid the speedy dispensation of justice.
This issue is resolved against the Appellant.
ISSUE TWO
Whether the Appellant’s right of fair hearing was not breached by the Tribunal in the hearing and determination of its notice of preliminary objection.
Learned Appellant’s counsel argued that the Tribunal at page 549 of the Record of Appeal Vol. 1 held that the 3rd Respondent did not file any response to the Appellant’s reply to the preliminary objection whereas the 3rd Respondent actually filed the said Respondent’s Reply on points of law on 25th January, 2011. Learned Appellant’s counsel argued that the failure of the Tribunal to consider the Appellant’s Reply to the Respondent’s address is a breach of the Appellant’s right to fair hearing which nullifies the trial at the Tribunal. Counsel cited the following cases KOYOYE V. C.B.N. (1989) 1 NWLR (Pt. 98) SC 419 at 444 Para H; ALHAJI V. MAIJI (2002) 4 NWLR (Pt. 756) CA 46 at Pg 60 -61 paras A- A; and ALAKYA V. MEDICAL DISCIPLINARY COMMTTTEE (1959) SC NLR 89, (1959) 4 FSC 38; OLUMESAN V. OGUN DEPO (1996) 2 NWLR (Pt. 433) SC 628 at 645 paras; YAYA ADIGUN V. A.G. OYO STATE & ORS (1987) 1 NWLR (Pt. 53 678 at Pg 707 – 708; MOHAMMED V. KANO N. A. (1968) 1 ALL NLR 424 at 426; NEWSWATCH COMM LTD V. ATTA (2006) 12 NWLR (Pt 993) SC 14. Counsel emphasized the point that what is important and relevant is the consideration of the Reply on points of law and not that the Tribunal would have reached the same decision even if it was considered.
Learned Appellant’s counsel also argued that the Appellant raised and argued the issue of the generic nature of the reliefs of the 1st to 14th Respondents and locus standi in paragraphs 4.53 to 4.71 of the written address in support of its preliminary objection at pages 237 to 239 of the record of appeal Vol. 1 and this was also confirmed by the Tribunal in its ruling at page 651 of the record of appeal Vol. 2.
Learned Appellant’s counsel referred us to pages 657 -658 where the Tribunal had formulated three issues for determination but having determined the first two issues did not determine the 3rd issue which relates to whether the action as constituted disclosed a cause of action against the 3rd Respondent.
Counsel submitted that this is wrong since cause of action affects the jurisdiction of the court. Counsel also submitted that the Tribunal did not take a decision on one of the twin issues of representative capacity. Counsel urged this court to set aside the decision of the Tribunal on the above grounds. He cited the following cases. ADUKU V. ADEJOH (1994) 5 NWLR (Pt. 346) 582 at 594; OMINI V. GOVT. OF CROSS RIVER STATE (2007) 41 WRN 158 at 186; FARAYOYE V. HASSAN (2007) ALL FWLR (Pt 368) PG 1070 at 1095.
Learned counsel for the 1st – 14th Respondents argued that although the lower court (the Tribunal) in its ruling inadvertently mentioned that the 3rd Respondent, that is the Appellant in this case, did not file any response to the applicants’ (1st -14th respondents) Reply to the Preliminary Objection, however, in the body of the said ruling, the same Tribunal copiously and extensively evaluated the argument of the Appellant on Points of Law to the 1st – 14th Respondents’ reply to its notice of preliminary objection.
Counsel argued that it is not every error in a judgment that will result in an upset of the judgment by the Appellate court. A mere slip by the court when the court actually considered the reply on points of law is irrelevant and would not render the judgment a nullity.
Counsel for the 1st – 14th Respondents also canvassed the view that the Tribunal expressed a view on the issue of the reliefs sought by the 1st – 14th Respondents being generic on page 558 -561 of the record contrary to the assertion of the Appellant.
Counsel also argued that the issue of the locus standi of the 1st – 14th Respondent was decided one way or the other by the Tribunal as clearly shown on pages 655 – 657 of the record where the Tribunal meticulously evaluated the submissions of counsel on the issue of locus standi
It is now trite to assert that the twin cardinal principles of fair hearing are expressed in the two maxims (a) audi alterem partem – that the judge before whose court the complaint or grudge is taken, must hear the two parties to the dispute and (b) nemo judex in causa sua – that there should be no evidence of bias, so that one should not be a judge in one’s own cause. There is no doubt that by virtue of Section 74 of the Evidence Act and as confirmed by the authority of OSAFILE V. ODI (1990) 3 NWLR (Pt. 137) 130 at 158 paras A-H, the Tribunal ought to have taken judicial notice of and considered the Appellant’s Reply on Points of law filed on 25th January 2011 to the 1st – 14th Respondents response to the preliminary objection which was properly filed and before the Tribunal as contained at pages 481 to 492 of the Record of Appeal Vol. 1.
In KOTOYE V. C.B.N. supra at Pg 444 paras E-H, the Supreme Court stated some basic criteria and attributes of fair hearing. They are:
“(i) That the court shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case. See SHELDON V. BROWN FIELD JUSTICES (1964) 2 Q.B. 573 at Pg 578;
(ii) That the court or tribunal shall give equal treatment, opportunity, and consideration to all concerned. See ADIGUN V. A.G. OYO STATE & ORS (1987) 1 NWLR (Pt. 53) 678;
(iii) That the proceedings shall be held in public and all concerned shall have access to and be informed of such a place of public hearing; and
(iv) That having regard to all the circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done; RV SUSSEX JUSTICES, EXPORTE MC-CARTHY (1924) 1 KB 256 at 259; DEDUWA & ORS v. OKORODUDU (1976) 10 SC 329.” It is my humble view that even though it was conceded by the 1st – 14th Respondents’ counsel that the learned trial judge appeared at a point not to consider the Appellant’s reply on points of law to the Respondents’ reply address, the sentence which gave that impression was a mere slip. Unfortunately on page 649 of the record, the Tribunal said as follows:
“The 3rd Respondent did not file any response to the Applicant’s Reply to the Preliminary Objection”
In fact, page 657 of the record does not support this slip as the Tribunal analysed the submission of counsel. A look at the record shows that was not the case and that sentence did not reflect the true position of things.
Also a reference to the record of the proceedings of the court shows that Shamsudeen Abubakar made his argument to the reply on points of law. In any event, I agree with the learned 1st – 14th Respondents’ counsel that the inadvertence of the court did not occasion miscarriage of justice and the ruling ought not to be set aside on that ground alone. See OKIRI V. IFEAGHA (2001) FWLR (Pt. 73) 140; Ekpo v. State (2003) 17 NWLR (Pt. 849) 392 Ratio 3; UZOCHUKWU V. ERI (1997) 7 NWLR (pt. 514) 535; PAN ATLANATIC SHIPPING & TRANSPORT AGENCIES LTD V. RHEIN MASS GMBH (1997) 9 NWLR (Pt. 493) 248; EDEANI NWAVU V. CHIEF OKOYE (2008) 12 SCNJ 460. I have read the judgment of the Tribunal and I am of the humble view that since the Tribunal reviewed all the issues raised by the Appellant at the initial stage of the judgment, it had those issues in mind before arriving at its findings of fact and determination of law. It is not necessary or compulsory for a trial judge to give separate opinion on every single issue raised during the course of a trial, in so far as it is obvious that before arriving at its decision it was aware of the arguments in relation to these sundry issues and the court took cognizance of these issues. A corporate rendition of the opinion of the trial court on all issues should suffice where it is shown that the judge took into consideration these issues before arriving at its conclusion. In this case, the Tribunal set out the submissions of both counsel on all these issues before it went on to determine the crux of the matter before it. The court is at liberty to lump together multiple issues and consider them together although generally it is desirable to consider each issue distinctly on the merit. See ETAJATA & ORS V. PETER I. OLOGBO (2007) 6 SCNJ 462. We have not been asked by the Appellant to reconsider the issues but to decide whether or not they were determined by the learned Tribunal in circumstances as to ensure fair hearing for the Appellant. I do not see any merit in this issue and it is resolved against the Appellant.
ISSUE THREE
This issue is whether the Tribunal had jurisdiction to entertain the 1st – 14th Respondents’ reliefs as presently framed/sought. Learned Appellant’s counsel argued that it is important to ensure that the court has jurisdiction to grant all reliefs sought before it. He argued that the reliefs sought at the Tribunal are vague, unquantifiable, unnecessarily generic, speculative and repetitive and urged this court to hold that the Tribunal had no jurisdiction to entertain the action, counsel submitted that there are main reliefs and auxiliary reliefs in the claim and if the 1st – 14th Respondents cannot claim the main reliefs they cannot claim the auxiliary ones. The principal reliefs were not made against the Appellant and the 1st – 14th Respondents cannot claim the consequential reliefs. The court cannot have jurisdiction on a party against whom no principal relief was sought’ He cited the following cases TUKUR V. GOV. OF GONGOLA STATE (1989) 4 NWLR Pt.117 pg 517 UZOUKWU V. EZEOMI (1991) 6 NWLR pt. 200 pg. 708 at 794-785 EMMANUEL v. DEBAYO-DOHERTY (2009) 1 NWLR Pt. 1123 Pg. 505 at 522; AMADI V. CHIMD (2009) 10 NWLR Pt. 1148 Pg. 107.
Learned Appellant’s counsel also contended that because the 1st – 14th Respondents are seeking declaratory reliefs against the agencies of the Federal Government, the Tribunal lacks jurisdiction pursuant to section 251 (1) (r) of the 1999 constitution. He argued that this section gives exclusive jurisdiction to the Federal High court in any action affecting the validity of any executive decision by the Federal Government or any of its agencies. He urged the court that since the 15th and 16th Respondents are agencies of the Federal Government, only the Federal High Court could give any orders concerning them. Counsel cited OLORUNTOBA-OJU V. DOPAMU (2008) 7 NWLR Pt. 1085 Pg 1 at 25-26 paras F-F; 36 a – B and ADETAYO V. ADEMOLA (2010) 15 NWLR Pt. 1215 Pg 169 at 191.
Learned Respondents’ counsel on the other hand argued that the reliefs sought by the 1st – 14th Respondents are not generic being clear concise and ascertainable. Counsel argued that in the originating application of the 1st – 14th Respondents for and on behalf of 13,604 registered investors, the 1st – 14th Respondents stated their collective monetary claim to be the liquidated sum of N=22,310,381,995.84 (Twenty Two Billion, Three Hundred and Ten Million, Three Hundred and Eighty One Thousand, Nine Hundred and Ninety Six Naira, Eighty Four Kobo).
Counsel argued that the fixed sum is liquidated and clear from the record.
On the question of the jurisdiction being ousted by section 251 (i) (r) of the 1999 Constitution, counsel argued that the section must be read with the provision which stipulates that redress can be sought against the Federal Government where the action is based on an enactment in this case the Investments and Securities Act 2007. Counsel argued that by section 31 (e) of the Act, the 15th and 16th Respondents are under the purview of the Act and are subject to its provisions while the Tribunal has exclusive jurisdiction over the subject matter in dispute.
In my humble view, this appeal turns on this issue of jurisdiction because jurisdiction is a pivotal issue on which the power of the court rests. See SOKOTO STATE GOVERNMENT V. KAMDEX NIG LTD (2007) 3 SCNJ 94. I have hitherto set out the declarations and reliefs sought by the 1st – 14th Respondents earlier on in this judgment. It is clear at least to me that the reliefs of the 1st – 14th Respondents are concise, clear and unambiguous. They may have been verbose and repetitive but certainly not unclear.
The fact of the matter is that reliefs A-D which are declaratory reliefs are the principal reliefs upon which the cause of action is based. They seek a declaration to enable them know the total amount of frozen monetary assets in the custody of the 3rd Respondent at the Tribunal and an order compelling the 2nd and 3rd Respondents to release without delay the money in its custody and reliefs of similar ilk. These reliefs are aimed at the 1st and 2nd Respondents at the Tribunal – that is the Securities and Exchange Commission and the Central Bank.
There is no doubt that these are Federal Government Agencies. It is not also in doubt that reliefs A-E are aimed at reversing decisions taken by the 1st and 2nd Respondents at the Tribunal in the course of performing executive duties while reliefs F-H are to compel them to do certain things in course of the performance of these duties.
Section 251 (1) (p) (q) (r) of the 1999 Constitution provide as follows:
“251(1) 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 causes and matters-
(p) the administration or the management and control of the Federal Government or any of its agencies;
(q) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal government or any of its agencies;
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive of administrative action or decision by the Federal Government or any of its agencies;
This provision has been interpreted by the Supreme Court in the locus classicus on the point. See NEPA V. EDEGBERO at (2002) 12 SCNJ 173, (2002) 18 NWLR pt. 798 pg 79 at Pg 95 Ogundare JSC who wrote the lead judgment emphasized as follows:
“It is not in dispute that the defendant – NEPA – is a Federal Government Agency, the two courts below made a finding of fact to this effect and this has not been challenged by the Plaintiffs. It is also not disputed that the cause of action in this matter arose out of the administrative action or decision of the defendant. The action is for a declaration and an injunction and the principal purpose of it is to nullify the decision of the Defendant terminating the appointments of the Plaintiffs and others. In the light of all these, therefore, the action on hand came squarely within the provision of section 230 (1) (s) of the 1979 constitution. It would appear on the surface, therefore, that the action would be one within the exclusive jurisdiction of the Federal High court. I have myself read the proviso to paragraphs (q) (r) and (s) of sub-section (1) of section 230 all over again; I can find no such exception in it that would lead me to find to the contrary. A careful reading of paragraphs (q), (r) and(s) reveals that the intention of the lawmakers was to take away from the jurisdiction of the State High Court and confer same exclusively on the Federal High Court actions in which the Federal Government or any of its agencies is a party. While paragraph (s) talked of actions for declaration or injunction or specific performance. It did not say as the learned trial judge, with profound respect, appear to read into it that action for damages, injunction or specific performance against the Federal Government or any of its agencies could still come before a State High Court. I am of the view that the learned trial judge was in error in his interpretation of the purport of the proviso …..”
“From what I have said earlier in this judgment the aim of paragraphs (q), r) and (s) of sub-section (1) of section 230 (the same as section 251)(1) 1999 Constitution) was to vest exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any of its agents was a party. A State High Court would no longer have jurisdiction in such matters notwithstanding the nature of the claim in the action.”
(underlining mine)
Uwais CJN also concurred to the effect that the proviso does not whittle down the exclusive jurisdiction of the Federal High Court. In that judgment, Ogundare JSC who wrote the lead judgment held that no matter the claim, in so far as an agent of the Federal Government is made a party, then the Federal High Court had jurisdiction. Even though Niki Tobi JSC agreed with the conclusion, his Lordship did not agree that the claim is irrelevant to our consideration of the venue of the trial. He was of the view that both the parties and subject matter of litigation is relevant in our determination of the issue of who has jurisdiction. His Lordship however, agreed that the proviso rather expands rather than delimits the jurisdiction of the Federal High Court.
Niki Tobi JSC on page 100 of the same report held that:
“In my view, for the Federal High Court to have exclusive jurisdiction, the matter must be a civil matter arising from the administration, management and control of the Federal Government or any of its agencies. The matter must arise from the operation and interpretation of the Constitution. And finally, the matter must arise from any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decisions by the Federal Government, or any of its agencies.”
A page 101 my Lord, Niki Tobi JSC defined administration and management as follows:
“Administration is a large term in business and commerce. So too management. Etymologically, Administration is the management or direction of the affairs a business. Management is the art or practice of managing especially a business. Both words have business as a common denominator,’
Niki Tobi JSC went on to state categorically that a contract of employment falls within the administrative and executive powers of the Federal Government Agency.
In recent times ONUORAH V. KRPC LTD (2005) 6 NWLR Pt. 921 Pg. 393 has been cited as authority for the view that the Federal High Court has no jurisdiction to try cases of simple contract involving the Federal Government or any of its agencies. The Supreme Court in my humble view seemed to have departed from the position in NEPA V. EDEGBERO (supra). Akintan JSC at page 414 held that the jurisdiction of the court is determined by the Plaintiff’s claim as endorsed on the writ and contained in the statement of claim. His Lordship held that the proviso to section 251 (1), (q), (r) and (s) is that “Nothing in the provisions of paragraphs (q), (r) and (s) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity”. He then held that any action founded on breach of simple contract would fall under the jurisdiction of the State High Court. His Lordship held that section 230 (1) (now section 251 (1) of the 1999 Constitution) provides a limitation to the general and all embracing jurisdiction of the State High Court because the items listed under section 230 (1) now section 251 (1) can only be determined exclusively by the Federal High Court. All other items not in the list would therefore still be within the jurisdiction of the State High Court. Akintan JSC took a directly opposite position from the position of the Supreme Court on the interpretation to be placed on the proviso to section 251 (1). See His Lordship opinion on page 404 – 405 paragraphs H-8.
“A close examination of the additional jurisdiction conferred on the Federal High Court in the section and by the 1979 Constitution clearly shows that the court was not conferred with jurisdiction to entertain claims founded on contract as in the instant case …” The question whether the Respondent is subsidiary or agent of the NNPC or not has no role when a consideration of the jurisdiction of the court is being made. This is because, as already stated above, the determining factor the court, which in this case, is one founded on breach of contract.”
Both Akintan JSC at page 405 paragraphs E-F and Niki Tobi JSC on page 407 held that the question of whether the Respondent is an agent of the Federal Government or not was not the primary consideration but the jurisdiction donated to the court by the claim of the Appellant. Both learned Justices held that in cases of simple contract the Federal High Court had no jurisdiction. In spite of the fact that there was a finding that neither of the parties was a Federal Government agency in ONUORAH V. KRPC (Supra), the Supreme Court unequivocally stated that the jurisdiction of the court where a Federal Government agency is involved would be determined by the claim of the Plaintiff.
Onuorah had seem to narrow down the scope of Edegbero without a doubt.
However, recent Supreme Court authorities seem to have returned to the position in NEPA V. EDEGBERO to the effect that the nature of the claim is irrelevant so long as the action is claiming declaratory, mandatory or injunctive reliefs from an agent of the Federal Government suffice it to say that in this case, the claim between the 1st – 14th Respondents and the 15th and 15th Respondents is not a claim grounded on simple contract. In fact, I do not see how the claim between the Appellant and the 1st – 14th Respondent can be a simple contract being a collective investment scheme, I do not buy the argument of the Appellant’s counsel in that regard.
The circumstances of this case calls for the interpretation of section 251 (1) (r) vis a vis the provisions of section 284 (i) (f) of the Investments Securities Act 2007. Section 284 (i) (f) provides as follows:
“284(1) The Tribunal shall, to the exclusion of any other court of law or body in Nigeria exercise jurisdiction to hear and determine any question of law or dispute involving –
a) A decision or determination of the Commission in the operation and application of this Act, and in particular, relating to any dispute-
i. Between capital market operators;
ii. Between capitol market operators and their clients;
iii. Between on investor and q 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. (underlining mine)
2) The Tribunal shall also exercise jurisdiction in any other matter as may be prescribed by an Act of the National Assembly.”
Let me humbly explain that the ISA established the Securities and Exchange Commission and part XVI of the Act provides for the establishment, jurisdiction, authority and procedure of the Investments and Securities Tribunal.
The position of the law is that section 251 of the 1999 Constitution vests exclusive jurisdiction in the Federal High Court in respect of all the items set out therein. Section 251 begins categorically with this mandate: “Notwithstanding anything contrary contained in this Constitution….” That is to say every other provision in the Constitution particularly relating to the jurisdiction of other courts are subsidiary or inferior to that provision. “Notwithstanding” according to Black’s Law Dictionary 8th Edition page 1094 means “Despite” or “Inspite of”.
Therefore, inspite of any other provisions of the 1999 Constitution, section 251 is superior to them. In OLORUNTOBA -OJU V. DOPAMU (2008) 7 NWLR Pt.1085 pg 1, the Supreme Court reiterated the point that the aim of section 251 (t) (p) (q) and (r) of the 1999 Constitution was to vest exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any of its agency is a party. In that case the Supreme Court held that where an existing law is inconsistent with the provisions of the Constitution it would be null to the extent of its inconsistency. It then held that the Labour Disputes Act 1990 cannot confer on the National Industrial Court exclusive jurisdiction to hear all employment disputes thus diminishing the unlimited jurisdiction of the State High Court.
Also in N.U.E.E. V. B.P.E. (2010) 7 NWLR Pt. 1194 P9 538 at 573 -574 the Supreme Court held that the parties and the subject matter of litigation must be examined against the backdrop of the provision of section 251 of the 1999 Constitution.
The 1st – 14th Respondents herein have sued the two Federal Government Agencies for a declaration that they have the right to know the credit balance of the Appellant in various Banks which had been frozen by the 15th and 16th Respondents. They also want mandatory orders for the release of the money to the said investors. It is clear that these principal claims are against the 15th and 16th Respondents wherein the validity of their executive decision to freeze the accounts of the Appellant is being challenged.
There is no doubt in my mind that in respect of claims A-H – the Federal High Court has exclusive jurisdiction. This is because no matter now laudable and practical the intendment of the Investments and Securities Act is, its provisions cannot override the provisions of the Constitution donating exclusive jurisdiction to the Federal High Court when the Federal Government or any of its agency is being challenged over any executive or administrative action it took. There is no doubt that freezing the account of the Appellant is a joint executive action of both the 15th and 16th Respondents. There is no doubt that to ensure speedy disposition of certain gendre of cases, the National Assembly had thought it fit to create specialist Tribunals, however, such creation must conform with the constitution. Under the inconsistency rule, the validity of any Law or Act is determined by its consistency with the provisions of the Constitution. As opined earlier any Law or Act inconsistent with the provisions of the Constitution would be null and void to the extent of its inconsistency. See N.U.E.E. V. B.P.E. supra at Pg 570 -571. By the provision of section 284 (i) of the ISA, the areas where the Tribunal has exclusive jurisdiction is limited to disputes relating to powers of the Securities and Exchange Commission vis a vis capital market operators, investors etc. Section 284 (f) gives the Tribunal exclusive jurisdiction to adjudicate in disputes arising from the administration, management and operation of a collective Investment Scheme. I have held earlier that the Appellant and 1st -14th Respondents were engaged in a collective investment scheme – thus if the claims by the 1st- 14th Respondents were limited to claim (i) compelling the Appellant to stop its allegedly illegal and fraudulent business and banking activities, then the Tribunal would have had exclusive jurisdiction. However, since the principal claims are against SEC and CBN, the Tribunal has no jurisdiction to determine them. As I said earlier no matter how laudable the reasons, the parties and the Tribunal cannot by complicity confer jurisdiction on it. That would be ultra vires the constitution. See also CADBURY NIG PLC V. FBIR (2010) 2 NWLR Pt. 1179 Pg 561.
Apart from the above, it is trite that a court must be able to grant all the reliefs before it in order to enable the court exercise jurisdiction. See TUKUR V. GOVT OF GONGOLA STATE (1989) 4 NWLR Pt. 117 Pg 517. I am of the humble but firm view that the Tribunal had no jurisdiction to try the claims brought before it by the 1st – 14th Respondents. This pivotal issue of jurisdiction is resolved in favour of the Appellant.
ISSUE FOUR
This is whether this suit which is founded on simple contract could be instituted in a representative capacity. Learned Appellant’s counsel argued that since the 1st -14th Respondents had admitted that Exhibit A is the written agreement between the parties on which the cause of action was based, no extrinsic evidence can be adduced to vary the agreement. They cited MOROHUNFOLA V. KWARA TECH (1990) 4 NWLR Pt. 145 Pg. 506 Pg 519 UBA V. OZIGI (1994) 3 NWLR Pt. 333 Pg 385 at 400.
Counsel argued that since Exhibit A was not signed by the investors and is binding only on the signatory to the written agreement thus no stranger can claim on it. They cited A.G. FED. V. AIC LTD (2000) 4 WRN 95 at 103 LINES 20 – 40; (2000) 10 NWLR (Pt.675) 293 at 311; L.S.D.P.C. V. N.L. & S.F. LTD (1992) 5 WNLR (Pt. 244) 653 at 669 – 670 paras F- B and ILESA L.P.A. V. OLAYIDE (1994) 5 NWLR (Pt. 342) 91 at 103 – 104 paras D-G and AGBAREH V. MIRA (2003) ALL FWLR (Pt.409) 559 at 586; RANK XEROX (NIG) LTD V. CENTRAX (NIG) LTD (1995) 1 NWLR (Pt. 374 at 715 paras C-E; MOBIL PROD. (NIG) UNLIMITED V. UMENIWEKE (2002) 9 NWLR (pt. 773) 543 at 557 paras A-B; OSHIN & OSHIN LTD V. LIVESTOCK FEED LTD (1997) 2 NWLR (Pt.486) 162 at 170.
Counsel argued that the action cannot be properly instituted in a representative capacity as the interest of each of the 1st – 14th Respondents and those they are representing is tied to each contracting party’s “memorandum of understanding” with the Appellant.
Learned Counsel for the 1st – 14th Respondents argued in opposition that Exhibit A was merely tendered to show the mode/type of relationship that each and every one of the investors had with the Appellant which shows the common interest binding the investors together enabling them to institute on action in a representative capacity. Counsel argued that the fact that the Appellant entered into a written joint venture agreement at various times with each and every investor constituting the 1st – 14th Respondents does not invalidate the fact that they have a common interest. He cited VULCAN GASES LTD V. OLANIYI OKUNLOLA (1993) 2 NWLR Pt. 274.
There is no doubt with the greatest respect that the argument propounded by the Appellant’s counsel is disingenious in the circumstances. Exhibit A was tendered by the 1st – 14th Respondents as Applicants at the Tribunal to show the sample of the Joint Venture Scheme contract or agreement entered into by the investors. It was never tendered to prove the agreement between all the investors but a sample thereof. Secondly, the law is that where there are several persons with the same interest in a cause or matter, one or more of such persons may with the leave of court sue or defend the suit on behalf of or for the benefit of all the others. Thus they can come together to attack a common enemy.
When they are many, they may choose representatives among themselves to represent the common interest. However, when this is done it must be shown clearly in the writ that the action is being instituted in a representative capacity. The representative capacity of the 1st – 14th Respondents was clearly shown. I do not see any merit in this point as raised by the Appellant. See VULCAN GASES V. OLANIYI OKUNLOLA supra. This issue is resolved against the Appellant.
ISSUE FIVE
This issue is whether the suit is not an abuse of court process same having being instituted during the pendency of suit No. FHC/L/CS/408/2009 between ABIODUN ADEBOWALE & 211 ORS v. NOSPETCO OIL & GAS & 27 ORS at the Federal High Court, Lagos.
Learned Appellant’s counsel submitted that where there is a multiplicity of actions on the same subject matter between the same parties simultaneously or in different courts even though on different ground this constitutes abuse of court process. He cited N.I.W.A. v. S.T.B. PLC (2008) 2 NWLR (Pt. 1072) 483 at 500-510 paras G-A; AWASIM v. OJICHE (2004) 10 NWLR (Pt. 882) 613 at 622-623 paras E-B and ARUBO v. AIYELERU (1993) NLWR (pt. 280) SC 125 at 142.
Counsel referred to the statement of claim in suit No. FHC/L/CS/408/09 to prove that the claim is similar in that, the plaintiffs wanted their funds ordered frozen by the 5th and 6th Respondents to be released to them. Appellant’s counsel said the plaintiff at the Federal High court referred to themselves as investors whereas the same investors are being represented in the action subject of this appeal. Learned Appellant’s counsel argued that since the present suit was instituted after the suit at the Federal High Court the suit is an abuse of the process of the Tribunal.
Learned Respondents’ counsel argued that the parties and issues in this suit and suit FHC/L/CS/408 /09 are not the same. Counsel said the investors in the case at the Federal High court are completely different and thus the parties are different.
There is no doubt that when a suit constitutes an abuse of court process it must be struck out. In the case of SARAKI V. KOTOYE (1992) 9 NWLR (Pt.264) SC 156, it was held that the circumstances of what can constitute an abuse of court process are not closed or exhaustive. In essence, the three conditions to satisfy to establish an abuse of court process are that: two suits are instituted and pending simultaneously which have:
i. The same subject matter/cause of action; (ii) the same parties. It is also important to emphasise that both the Plaintiffs in suit No. FHC/L/CS/408 /09 and the 1st -14th Respondents herein respectively and principally want the frozen funds to be released to them by both the Federal High court and the Tribunal by instituting different actions.
Be that as it may, let us look at the claim at the Federal High court in order to consider that if we place them side by side they would amount to the same thing. The claim in FHC/L/CS/408 /09 is set out below:
“wherefore the claimants claim against the Defendants jointly and severally as follows:
i. A declaration that the claimants being innocent private investors are entitled to their monies invested in the 1st- 9th Defendants’ companies.
ii. A declaration that the 10th and 11th Defendants have no powers under the law to stop the operation of the 1st to 9th Defendants.
iii. A declaration that the freezing of the 1st to 9th Defendants’ accounts which include the funds of the claimants by the 10th and 11th Defendants is unlawful, ultra vires the powers of the 10th and 11th Defendants and is therefore null and void.
iv. An order directing the 12th to 28th Defendants to render account of the monies of the 1st to 9th Defendants in their custody.
v. An order directing the Defendants jointly and severally to pay to the claimants their invested funds with 1st to 9th Defendants which are in the custody of the 12th – 28th Defendants.
ALTERNATIVELY,
An order directing the 10th – 11th Defendants to meet with the claimants’ legal representative to verify the claimants’ claims and entitlements and pay same to them.”
It is my humble view that inspite of protestations to the contrary, the causes of action are the same even if the parties are different. Where the parties are different, there cannot be abuse of court process. After a look at the parties in both cases, one cannot be sure whether either set represents the totality of the investors with serious grievances against the Appellant. Unless the person making an allegation of abuse of court process can prove that both the parties and the subject matter are the same, it would be inimical for a court to strike out the latter process. In this case, the Appellant has not been able to prove that the parties are the same. I am of the view that this issue is hereby resolved against the Appellant.
I have refrained from making any reference to the brief filed on 2nd August, 2011 by learned counsel for the 16th Respondent. This is because the brief is incompetent. A Respondent’s brief must willy nilly support the judgment. Where a Respondent is dissatisfied with a portion of the judgment which does not favour him, he is to file a cross appeal. Where a Respondent is dissatisfied with the ratio of a judgment but which overall favours him, he may file a Respondent’s Notice to contend that the judgment be upheld on appeal on other grounds than those given in the judgment. The 15th and 16th Respondents were Defendants at the Tribunal and the ruling of the Tribunal did not favour them. They did not file an appeal against the ruling. Therefore neither can be heard to attack on appeal the ruling of the Tribunal having not appealed against it. The brief was filed in complete misconception of the law and it is hereby struck out’ see Minister PMR V. EL NIG LTD (2010) 12 NWLR pt. 1208 pg 261; OGUNSOLA V. NICON (2010) 13 NWLR pt. 12211 PG 225; I. H. LTD v. SONEB ENT LTD (2010) 4 NWLR Pt.1185 Pg 561. Even though I had resolved the pivotal issue of jurisdiction in favour of the Appellant, I decided to consider and resolve all other issues submitted for determination. I hold fast to the view that it is the duty of this court as an intermediate court to determine all issues submitted to it for determination. See MOJEED SUARA YUSUF V. MADAM IDIATU ADEGOKE (2007) 1 SCNJ 207.
I have hitherto resolved the pivotal issue of jurisdiction in this appeal in favour of the Appellant. The appeal is therefore allowed. No order as to costs.
RITA NOSAKHARE PEMU, J.C.A.: I have read before now, the judgment just delivered by my brother H.M. Ogunwumiju J.C.A, and I agree and fully adopt his reasoning and conclusion.
Let me add, that in writing judgment all that is required of a judge are these:
(1) State briefly the reliefs claimed
(2) Relevant facts on all sides
(3) Arguments and reactions of the judge or reason for findings and
(4) Final order or orders made.
The reasons for those findings need not be elaborate – See NWANKUDU v. IBETO 2011, 2 NWLR, Pt. 7237. Page 209.
It is only a sin for a judge, and indeed it is against the tenet of justice for a trial judge to make use of evidence favourable to a party and reject that favourable to the other party. But he is at liberty to consider issues the way he deems fit, as long as no miscarriage of justice is occasioned to either of the parties.
The provision of the Constitution is sacrosanct. The Constitution of the Federal Republic of Nigeria 1999 is the grundnorm of the Nigerian Order.
Every other enactment, be it Acts, Rules, Decrees etc. must of necessity bow to it. Their provisions cannot be superior neither can it override the provisions of the Constitution.
Where therefore the Constitution confers on a Court or Tribunal exclusive jurisdiction, that settles it. Section 1(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is clear. It has this to say “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void”
SEE N.U. E. E. VS. B.F.E. (2010) 7 NWLR Part 1194. Pg. 538 at 573-574,
I subscribe to the consequential orders made in the judgment inclusive of the one as to costs.
Appeal allowed.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have been availed the benefit of reading before now the draft of the lead Judgment just rendered by my Lord, Helen Moronkeji Ogunwumiju JCA and agree completely with her conclusion that the trial securities and Investment Tribunal had no jurisdiction to try the case in the first place, and its Judgment should be set aside and the appeal allowed. Although the learned counsel for the Appellant had formulated 4 issues for determination and so also had the Respondents’ issues railed in concensus and similarity with the Appellants issues, it beholves a court of law to take up the issue of jurisdiction first as it is a threshould issue and is indeed extrinsic to adjudication. In that wise, a court of law or Tribunal seized of a matter is bound to examine the statement of claim as made and the plaint or petition as the case may be to ensure that it is a matter over which it has jurisdiction to entertain.
This is because a hearing and determination of a court on an issue in which it has no jurisdiction is a nullity no matter how well written and how good the decision may appear. See Oloruntoba-Oju Vs. Abdul Raheem (2009) 13 NWLR Pt. 1159 SC 83 at 124 – 125., Petro Jessica Vs. Leventis (1992) 5 NWLR part 244 page 675 at 693., Obi Vs. Inec (2007) 11 NWLR Pt. 1046 page 436 at 482 all cited by the Appellant’s learned counsel. For a court to be competent and have jurisdiction it must be properly constituted as to its membership and their qualification, as to subject matter and must be properly initiated by due process before her and there must be no disqualifying factor or defect as to the fulfillment of all or any condition(s) precedent for the institution of the suit. See Madukolu Vs. Nkemdilim (1962) 2 SCNLR 347 Skenconsult Vs. Ukey (1987) 1 SC 6.
There was no challenge as to the constitution of the Trial Tribunal or its membership and qualification of the chairman and members thereof, nor the process of initiating the proceedings thereat. However, the question remaining, and it is this, since a right of adjudication is conferred by the constitution or statute, can a court or Tribunal not so imbued with jurisdiction or as in this case, where jurisdiction which otherwise would have innured is expressly or impliedly taken away or denied take cognizance of such a suit? The answer will be obvious from a perusal of section 251 (1) (r) of the 1999 constitution of the Federal Republic of Nigeria. It provides as follows:
“251 – (1) 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 causes and matters –
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies; and…”
The argument of the Appellant’s learned counsel, Mr. Shamsudeen Abubakar Esq. that the trial Tribunal had no jurisdiction is therefore correct. The exclusive jurisdiction, has by the aforesaid constitutional provision been exclusively vested or conferred in the Federal High court, since the action amongst its principal reliefs, makes claims and seeks declarations and injunction affecting the validity of the executive or administrative action or decision by the Federal Government or any of its Agencies in this appeal, to wit the securities and exchange commission and the Central Bank (that is the 15th and 16th Respondents respectively). On this score alone, the appeal must succeed, as the trial Tribunal, lacking in jurisdiction had no power to have proceeded in adjudicating and making any pronouncement thereafter. It was incumbent on the Tribunal to have struck out the case for want of jurisdiction. Let me however say at this stage that the situation created by this decision and the other such cases as Oloruntoba-Oju supra is such that the legislature i.e. National Assembly may amend section 251 1 (r) of the 1999 Constitution to qualify such exclusivity of jurisdiction by the addition of such phrases as:
“without prejudice to the determination of all such causes or matters as are by any statute or Act of the National Assembly vested in any specialized court or Tribunal, the parties thereto not withstanding”.
It is only by a Constitutional amendment that the situation can be saved.
The constitution is the grund norm of the society and all laws must be subject to it; and it does not matter if it operates unreasonably and in departure from public opinion or intended legislative intent in any specific Act of the National Assembly as may be enacted or in existence. Appeal is allowed by me in concurrence with the lead Judgment which reasoning and conclusion I also adopt, even as I abide with the order relating to costs awarded.
Appearances
A Shamsudeen with him: M. BamideleFor Appellant
AND
Debo Adeleke – for all the Respondents/Applicants
With him: Prince Adekunle Ebeda,
Bamiyi Oyedokun,
Dayo Ademolekun; and
Adeola Omojola Miss
L. I. Onyenyeonwu (Miss) – for the 16th RespondentFor Respondent
