OGADA INDUSTRIES LIMITED & ANOR v. UNION HOMES SAVINGS AND LOANS PLC & ORS
(2019)LCN/13729(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 31st day of July, 2019
CA/L/889/2010
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
1. OGADA INDUSTRIES LTD
2. UDEAGHA EGBE
-APPELLANTS/CROSS-RESPONDENTS Appellant(s)
AND
1. UNION HOMES SAVINGS AND LOANS PLC
2. UNION CAPITAL MARKETS LTD
3. UNION REGISTRARS LIMITED
-RESPONDENTS/ CROSS- APPELLANTS Respondent(s)
RATIO
DEFINITION OF THE TERM “MISNOMER”
A misnomer was defined by the Supreme Court in MAERSK LINE & ANOR v ADDIDE INVESTMENTS LIMITED &ANOR (2002) LPELR ? 1811 (SC);
?Misnomer in this sense means, simply, a wrong use of a name. If the entity intended to be used exists but a wrong name is used to describe it that, in my judgment, is a misnomer.? (DISSENTING)
When a misnomer has occurred, it does not render the entire process or proceeding to be struck out.
This Court in ARAB CONTRACTORS NIG LTD v EL ? RAPHAAL HOSPITAL & MATERNITY (2009) LPELR 8735 (CA); ?…The Court has the power to amend the title of an action to show the correct name of the party sued if it is shown to the satisfaction of the Court that it was a case of a misnomer…PER OBASEKI-ADEJUMO, J.C.A.
DEFINITION OF THE TERM “WAIVER”
The Supreme court defined what a waiver was in GABRIEL OLATUNDE V OBAFEMI AWOLOWO UNIVERSITY & ANOR (1998) LPELR ? 2575 (SC);
?…waiver is defined as the abandonment of a right. To amount to waiver, express or implied two elements must co ? exists namely; (i) The party against whom the doctrine is raised must have knowledge or be aware of the act or omission which constitutes the waiver and (ii) He must do some unequivocal act adopting or recognising the act adopting or recognising the act or omission.?
per IGUH, JSC (PP. 30 -31, PARAS. D ? A)
See also IKECHI OLUE v OBI ENENWALI (1976) LPELR 2612 (SC); EZE v OKECHUKWU (2002) 12 SC (PT. 11) 103; MENAKAYA v MENAKAYA (2001) 16 NWLR (PT. 738) 203 AT 236. PER OBASEKI-ADEJUMO, J.C.A.
WHERE A STATUTE PROVIDES CONDITIONS THAT MUST BE SATISFIED BEFORE EXERCISING THE POWERS OF A STATUTE
Where a statue provides that before a statutory power is exercised and certain conditions must be satisfied, that power cannot be exercised unless terms/conditions have been satisfied and that where a statue prescribes a particular method of exercising a statutory power only that method should be adopted. See AROWOLO v ADESINA (2011) 2 NWLR (PT. 1231) 315; APAPA v INEC (2012) 8 NWLR (PT 1303); AGODA v ENAMUOTOR (1999) 8 NWLR (PT. 615 407); AUCHI POLY v OKUOGHAE (2005) 10 NWLR (PT 931) 297 AT 291; OGUNLAJA v AG RIVERS STATE & ORS (1997) SCNJ 240. PER OBASEKI-ADEJUMO, J.C.A.
DUTY OF THE COURT WHERE THERE ARE TWO ENABLING PROVISIONS
?The law is that where there are two enabling provisions, one specific and the other general, the Court ought to presume without more that the law maker has intended the specific provision to prevail over the general provision and so to govern the matter. The reason behind this rule is that the legislature in making the special provision considered the particular case and expressed its will in regard to that case, hence the special provision forms an exception importing the negative ? Osahon V Federal Republic of Nigeria (2003) 16 NWLR (Pt. 845) 89, Nigerian Deposit Insurance Corporation V The Governing Council of the Industrial Training Fund (2012) 9 NWLR (Pt. 1305) 252, Abubakar V Nasamu (No. 1) (2012) 17 NWLR (Pt. 1330) 407, Madumere V Okwara (2013) 12 NWLR (Pt. 1368) 303.?
per ABIRU, JCA (P. 54, PARAS. A ? E)
See SUDAN INTERIOR MISSION v BOLAJI & ORS (2013) LPELR ? 24709 (CA); FEDERAL COLLEGE OF EDUCATION OSIELE, ABEOKUTA v AJAYI (2014) LPELR ? 24401 (CA); AMERICA SPECIFICATION AUTOS LIMITED v AMCON (2017) LPELR ? 44016 (CA). PER OBASEKI-ADEJUMO, J.C.A.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.(Delivering the Leading Judgment):
CROSS- APPEAL
This is a Cross ? appeal against the judgment of the Tribunal delivered on the 26th of May, 2010, filed by the Cross Appellants, wherein judgment was given in favour of the Cross Respondent?s. The cross appeal is based on the Amended Notice of Cross-Appeal dated 18/7/17, the Cross Appellant?s brief of Argument filed on 18/7/17, together with reply was settled by Kolawole Mayomi Esq., Debo Ogunmuyiwa Esq., of S.P.A. AJIBADE & CO. While, the Cross Respondent?s brief of argument dated and filed on 20/11/2017 was settled by Ike Imo Esq. The issues formulated for determination by the Cross Appellants are;
1. ?Whether the Tribunal wrongfully exercises its discretion in dismissing the cross-Appellants? application for leave to adduce fresh evidence which clearly establishes that the 1st Cross-Appellant?s application for 11,677,420 shares in the UHSL 2006 Rights issue was null and void ab initio (Grounds 1 & 4).”
?2. Whether by the application of Rule 61(2) of the Securities and Exchange Commission Rules and Regulations (Amendment) 2006, ?
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the 1st Cross-Respondent?s non-compliance with the terms of the 2nd Cross-Appellant?s 2006 Rights issue did not thereby render its application for 11,677,420 shares in the UHSL 2006 Rights issue null and void? (Ground 2).
3. Whether the Cross-Appellants? receipt of the 1st Respondent?s defective Acceptance Form and cheque amounted to a waiver of the mandatory provision of Rule 61(2) of the Securities and Exchange Commission Rules and Regulation (Amended) 2006 as to crystalliz into a binding control for the allotment of 11,677,420 UHSL shares? (Ground 3)
Having perused this cross appeal, it is clear that it is against the main judgment which finds the Cross Respondent entitled to its claims but refused the claim for monetary reliefs. While the Appellants? appeal is only against the refusal of the award of specific monetary relief and other damages and interest there on.
?
Therefore, it is in the interest of this appeal and cross appeal to determine the cross appeal first (which attacks the main judgement) and thereafter, consider the appeal (Cross Respondents?
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appeal) and determine; whether he is entitled to the monetary reliefs sought for at the Tribunal level?
CROSS APPELLANT?S SUBMISSIONS
The Cross ? Appellants relied on AMAECHI v INEC (2008) 5 NWLR (PT. 1080) 227 and OWATA v ANYIGOR (1993) 2 NWLR (PT. 276) 380, 393 to submit that the law is settled in civil cases, an appellate Court can exercise its discretion to receive fresh evidence on appeal where the evidence sought to be adduced could not have been obtained with reasonable care and diligence for the use at the Court of first instance and, it was relevant to the determination of the case.
It is therefore, important to review the circumstances of the missing evidence at the SEC proceedings, and the difference that this evidence would have made at SEC?s resolution of the parties, to fully appreciate the gravamen of the Cross ? Appellants? contention that the dismissal of their application for leave to adduce fresh evidence on appeal was a wrongful exercise of the Tribunal?s discretion.
?
The substance of the Cross-Respondents? petition to SEC dated 10th March, 2009 and its subsequent amended appeal
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dated 7th October, 2009 to the Tribunal, was that transaction for the allotment of 11,277,420 shares in UHSL had come into existence between Ogada Industries and UHSL, and that UHSL?s alleged mishandling of Ogada Industries? application amounted to a breach of contract. Hence, Ogada Industries claimed damages to assuage the monetary losses which it allegedly suffered by reason of non- allotment of the shares to it.
On 4th June, 2007, the 3rd Cross ? Appellant asked Ogada Industries to come for money refund. The 1st Cross ? Appellant also explained by letter dated 26th March, 2008, the reason why CBN rejected Ogada Industries? application; that there was no evidence of payment tendered in support of its application for the UHSL shares. This position was also confirmed by the CBN?s letter to UHSL dated 26th March, 2007, which enclosed the List of rejected subscriptions in which Ogada Industries was featured as No. 11.
?
At SEC?s proceedings of 8th April, 2009, UHSL confirmed that, indeed, it received Ogada industries application which was duly forwarded to the issuing House, but could not readily explain why the
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instrument which Ogada industries tendered as payment in support of its application was not forwarded to the issuing house, SEC then directed UHSL to furnish the commission, within two weeks, the evidence that it submitted Ogada Industries application form and cheque to the issuing house and if not, reasons why it was not done. UHSL was however unable to procure the above evidence within two weeks deadline given by SEC, SEC by a letter dated 9th July, 2009, issued its decision on the matter.
The Cross Respondents dissatisfied appealed against SEC?s decision by Notice of Cross ? Appeal dated 23rd September 2009.
?
The Cross ? Appellants in the course of the Tribunal filed an application seeking leave to proffer further evidence on appeal. The evidence which the Cross ? Appellants sought to adduce is the Witness Statement of Mr. Aderemi Daniel, Company Secretary of UHSL, which encapsulates the findings of the investigation which was initiated pursuant to SEC?s directives that, UHSL should provide evidence that it submitted Ogada Industries? application form and cheque to the Issuing House, at the proceedings of 8th
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April, 2008 which was not concluded before SEC issued its decision.
Mr. Aderemi Daniel?s evidence was in two parts. In the first part, he explained why the evidence was not made available, despite diligent searches, before SEC issued its decision. In the second part, he outlined his findings that the cheque which Ogaga Industries purported to submit in support of its application for the 11, 677, 420 UHSL shares was prima facie defective. Hence, UHSL could not submit this cheque to the issuing house, for transmission to CBN. Mr. Daniel also gave additional evidence to establish that Ogada Industries? application form was improperly completed, and void ab inito. The Cross ? Respondents opposed the Cross ? Appellants? application to rely on Mr. Daniel?s evidence before the Tribunal, but did not file any evidence to controvert the truth of this evidence.
The Tribunal in its ruling on this issue dismissed this application on the grounds that evidence of Mr. Daniel was uncertain and speculative.
?
The question which the Cross Appellants humbly submits for determination by the Honourable Court is; whether given the
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facts and circumstances of this matter, the Tribunal wrongfully exercised its discretion in dismissing the Cross ? Appellants application for leave to adduce fresh evidence on appeal?
It is settled law that a judicial discretion is exercised on sound principles of law, based on sufficient materials, and giving weight to relevant considerations, ATIKU v YOLA LOCAL GOVERNMENT (2003) 1 NWLR was relied on.
It is the Cross ? Appellants submission that each of the three grounds that the Tribunal relied upon in exercising its discretion to dismiss the application to rely on Mr. Daniel?s evidence on appeal was wrong.
Furthermore, contrary to the Tribunal?s conclusions, Mr. Daniel?s evidence was not speculative, but a careful, factual and impassive analysis of the validity of Ogada Industries application form and its alleged instrument of payment vis-a-vis the terms of UHSL 2006 Rights Issue. These documents were placed before the Tribunal as Annexure A and Annexure b respectively in the summary of evidence that was filed alongside the Notice of Cross ? Appeal, as required under the Tribunal?s rules of
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procedure.
Cross ? Appellants submits that considering one of the criterion for admission of fresh evidence on appeal, as stated by the Supreme Court in OWATA V ANYIGOR (Supra), that the purpose of adducing fresh evidence on appeal is to supply the missing link in the trial which diligent search did not disclose, given the solid documentary foundation attached in Mr Daniels affidavit evidence, this evidence is quite credible in the sense of being believed, and not speculative.
It is therefore, the Cross ? Appellants? submission that the Tribunal wrongfully exercised its discretion in dismissing the Cross ? Appellants? application for leave to adduce fresh evidence before it, and urge this Honourable Court to set aside the Tribunal?s ruling of 11th March, 2010 and its judgment of 26th May, 2010 which discountenanced the evidence of Mr. Daniel.
?
On issue 2, Cross ? Appellants submits that the Securities and Exchanges Commission Rules and Regulations (Amendment) 2006 (SECRR (A)) is the applicable legislation which governed the UHSL 2006 Rights Issue. It was developed by SEC as piece of subsidiary legislation
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pursuant to Section 258 and 262 of the Investment and Securities Act, 1999. In law, SECRR(A) 2006 is part of the laws of Nigeria since it is made by provision in a statutory enactment, and it draws its validity and authority from the substantive law. See DIN v A.G FEDERATION (1988) 4 NWLR (PT. 87) 147, 187; FAWEHINMI v NBA (NO. 2) (1989) 2 NWLR (PT. 105) 558, at 614.
The Cross ? Appellants? case before the Tribunal was premised on application of Rule 61 (2) of the SECRR(A) 2006 to Ogada Industries? improperly completed Application Form. Whilst the Tribunal, in its judgment, recognized the efficacy of the SECRR (A), it failed to properly apply it to the case at hand; as it held that the irregularities in Ogada Industries? application form does not make its application for 11, 677, 420 shares in the UHSL Rights Issue void, but merely voidable.
The Tribunal then went on to state that, even if Ogada Industries Application form was found to be improperly completed; such a defect does not operate to vitiate the contract of allotment of shares.
?
The Cross – Appellants humbly submit that the Tribunal fell into a grave legal error
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by its misinterpretation or non ? application of Rule 61 (2) of SECRR(A) 2006 in its judgment.
It is important to note that from the provisional allotment, the Cross ? Appellants made a provisional offer of allotment of 11, 677, 420 UHSL shares at N 1. 80 each, with purchase amount of N 20, 299, 356. 00 (Twenty Million, Two Hundred and Ninety – Nine Thousand, Three Hundred and Fifty Six Naira) to a corporate allotted; Ogada Industries Limited.
Paragraph 10 of Mr. Daniel?s evidence clearly demonstrates that Ogada Industries? Acceptance form for 11, 677, 420 shares in UHSL 2006 Right Issue of November 2006 was improperly completed, as it failed to comply with the instructions that were carefully set out in the allotment letter. Moreover, the payment instrument that was submitted by Ogada Industries alongside it Application form was similarly defective for failing to comply with the terms of the Rights Issue.
?
Cross Appellants argued that Mr. Daniel?s evidence on the invalidity of the contract to allot 11, 677, 420 UHSL shares to Ogada Industries is easily borne out by a cursory glance at Ogada Industries?
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Acceptance form, which is contrary to the instructions contained at paragraph 9 of provisional allotment letter.
The Cross Appellants humbly submit that the instructions must be obeyed to the letter. A further glance at the 2nd Cross Respondent?s personal cheque which was tendered as the payment instrument for Ogada Industries? application for 11, 677, 420 UHSL shares shows that, the instrument itself was improperly filled and could not be presented for regulatory scrutiny as a valid payment instrument.
Whether an allotment be made pursuant to Ogada Industries?s improperly filled application form in the face of Rule 61 (20 SECRR(A) 2006 can be termed valid? The Rule 61 (2) (h) of the SECRR(A) 2006 clearly states that improperly completed application in the Nigeria Capital market shall be null and void. EJIMOFOR v NITEL (2007) 1 NWLR (PT. 1014); MACFOY v UNITED AFRICA CO. LTD (1961) 3 ALL ER 1189.
The Cross Appellants urge this honourable Court to uphold the sanctity of Rule 61 (2) (c) & (h) of the SECRR (A) 2006, by setting aside the Tribunal?s erroneous decision
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and rather hold that by the application of Rule 61 (2) (c) & (h) of the SECRR(A) 2006 to the facts of this matter, Ogada Industries? acceptance form and its instrument of payment for allotment of 11, 677, 420 UHSL shares was void ab inito and in consequence, no allotment of shares (or any award of monetary value in lieu of the shares) can be made to Ogada Industries in this matter.
The Cross Appellants in addition in issue 3 submitted that the Tribunal was wrong in applying the doctrine of waiver to a void contract, when it held that the Cross – Appellants had, by accepting the void acceptance form and defective instrument of payment, waived their right to rescind the contract for allotment of shares to Ogada Industries.
The law is clearly settled that a mandatory provision directing a procedure to be followed in the performance of any duty is not a party?s personal right to be waived. Estoppel cannot be used to compromise a statutory provision of a public nature. Counsel relied on MENAKAYA v MENAKAYA (2001) 16 NWLR (PT. 738) 203 AT 236.
Cross Appellants urged the Court to note that the 3rd Cross ? Appellant had invited Ogada Industries to collect its
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money refund since 4th June, 2007 after the conclusion of the 2006 UHSL Rights Issue exercise. The Cross Respondents however refused to collect the money, ever since.
The Cross Appellants respectfully and humbly urge this honourable Court to allow their Cross ? appeal and set aside the judgment of the Tribunal which was delivered on 26th May, 2010.
CROSS RESPONDENTS? SUBMISSIONS
PRELIMINARY OBJECTION
The Cross Appellants filed a preliminary objection on the following grounds;
a) That the Cross Appellants in their brief page 1 introduced a new 2nd Cross Appellant (Union Homes Savings and loans Limited) which was never a party in the above appeal or in the case at the SEC or the appeal at the lower Court.
b) That the Cross Appellants latest attempt to smuggle in a strange party in this appeal is in continuation of their series of actions to delay the resolution of this appeal.
?
Cross Respondents prayed the Court to discountenance the Cross Appellants purported brief and the main and cross appeal based on the Appellants/Cross Respondents brief only following the Cross Appellants neglect, refusal and failure to file
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the brief for all the proper parties and with the parties in their correct order after many adjournments for them to correct the avoidable mistakes.
Cross Respondents went on to make submissions on the issues raised in the Cross Appeal.
On issue 1, Counsel submits that the 3rd Cross Appellant in Annexure 9 dated September 05, 2007 by inference admitted that it received and submitted to the 1st Cross Appellant all correctly completed application forms (which included the 1st Cross Respondent?s application form) for the 2nd Cross Appellant?s 2006 Rights Issue which the 1st Cross Appellants submitted to the CBN.
The 2nd Cross Appellant in Annexure 11 dated 17th July, 2007 by inference admitted that the 1st Cross Respondent?s payment of consideration was in order as the 1st Cross Appellant stated unequivocally that it never received any query on the 1st Cross Respondent?s payments for acceptance and application for additional shares in the Union Homes Savings and Loans Plc 2006 Rights Issue.
The Cross Respondent argued that from the combined reading of the above and annexure 7, 19 and 19 (1) (2), it is in agreement that
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the CBN for only one reason (Evidence of payment not attached) rejected the 1st Appellant/Cross Respondent?s acceptance and application for the 2nd Respondent/Cross Appellants Ordinary shares and none of the Cross Appellants rejected or queried the 1st Cross Respondent?s above application prior and payment instruments after the CBN rejection.
The Cross Respondents further submitted that the Cross Appellants were unable to comply with SEC directives which expired on 22nd day of April, and the non compliance culminated to the death of whatever issues SEC intended to address with the evidence sought from the Cross Appellants.
It is the Cross Respondents contention that the Cross Appellants never asked or sought for leave from SEC for the extension of time to comply with the aforementioned SEC directive.
The Cross Appellants application to put in fresh evidence in the appeal at the lower Court did not meet the three in one principles that must co – exist as stated in EHINLANWO v OKE (2008) 16 NWLR (PT. 1113) 383 ? 384; OREDOYIN v AROWOLO (1989) 4 NWLR SC 205 PARAGRAPH D ? E.
?
It is also the contention of the Cross
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Respondents that the ratio in AMAECHI v INEC, OWATA v ANYIGOR and ATIKU v YOLA LOCAL GOVERNMENT cases cited by the Cross Appellants do not apply in the instant case as the issues in the purported Mr. A. A Daniel?s evidence was on issues not before the SEC and for facts earlier admitted by the Cross Appellants.
On issue 2, Cross Respondents adopt its arguments in issue one and argued in addition that the lower Court acted in its Appellate jurisdiction, so therefore was restricted to the decision of the SEC based on facts in dispute before SEC.
The Cross Respondents contends that none of the reasons in Part B of the SECRR(A) 2006 titled ?Regulation of Distribution of Public Securities? was in dispute at the APM held at SEC head office and the resultant SEC decision appealed and cross appealed against at the lower Court.
It further contended that the lower Court had no power, reason, and jurisdiction to interpret or apply Rule 61 (2) of the SECRR 2006 to facts that were not in dispute at the APM held at the SEC head office.
?
Mr. A. A Daniel?s purported evidence established nothing as it was never before the SEC, and the
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lower Court and was an attempt by the Cross Appellants to contradict facts that it had earlier admitted. The cases of DIN v AG FEDERATION; FAWEHINMI v NBA; EJIMOFOR v NITEL; MACFOY v UNITED AFRICA CO. LTD and the provisions of SECRR(A) Rule 61 (2) do not apply in this instant case.
On issue 3, the Cross Respondents submits that the lower Court?s view referred to by the Cross Appellants paragraph 4. 46 of their brief is an obiter and an academic view that enriches the jurisprudence of the law of contract.
The issue on waiver or no waiver of the mandatory provision of Rule 61 (2) of the SECRR(A) 2006 never arose.
CROSS APPELLANTS? REPLY
The Cross Appellants submit that the Cross Respondents argument in its preliminary objection derives from the basic error of conflating the issues of juristic personality and of misnomer of parties in a legal process.
?
An issue of juristic personality occurs when a party does not exist, at all, in law, the proceedings and processes ought to be struck out. But in an issue of misnomer, where the natural or legal person actually exists and is known to both parties, but a wrong name or
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appellation is used to sue, the offending proceedings and processes is saved. Counsel relied on OKEKE v NNAMDI AZIKIWE UNIVERSITY TEACHING HOSPITAL (2018) LPELR ? 43781 (CA).
In conclusion, Counsel urges the Court to hold that the name description of the 2nd Cross Appellant as LIMITED and not PLC was a mere misnomer which does not vitiate the Cross Appellant?s brief of argument, as no miscarriage of justice was occasioned.
Cross Appellants in it reply on issue one, submit that the Cross Respondents? argument that the application to put in fresh evidence did not meet the three principles that must co-exist as enunciated by the Supreme Court in EHINLANWO v OKE (2008) 16 NWLR (PT. 1113) 383 and OREDOYIN v AROWOLO (1989) 4 NWLR (PT. 114) 172 do not excuse the IST wrongful exercise of discretion in refusing to admit evidence which had earlier been acknowledge by SEC as crucial, but which was not available until the matter went on appeal to the IST; and which shows ex ? facie that the underlying contract which sought to be enforced between the parties was void for being in breach of the mandatory provisions of a statute.<br< p=””
</br<
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Counsel further submits relying on UNITRUST INSURANCE CO. LTD v AMBICO SENDIRIAN NIGERIA LTD (2012) LPELR ? 15417 (CA) and EKWUNIFE v WAYNE W/AFRICA LTD that once a contractual arrangement is shown to be statutorily proscribed, it is not only void; it is illegal.
The Cross Appellants contends in issue 2 that the submission of the Cross Respondents borders on a heretical proposition that the IST should condone a breach of the law. Rule 61(2) of SECRR(A) 2006 clearly stated that improperly completed applications for shares shall be rejected, and that any allotment made contrary thereof shall be null and void. The meaning and intent of the statute is that even if a void application form escapes initial attention, any allotment made thereto must be invalidated as soon as the error is discovered.
?
Cross Appellants, therefore submit that, once the fact of an improperly completed application was brought to the IST?s attention (howsoever late in the day), it was duty bound to apply Rule 61 (2) of the SECRRA to invalidate any allotment made, or sought to be made pursuant to such application. The Tribunal?s exercise of jurisdiction in this
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regard is not an academic exercise; it is a legitimate act of applying the law.
RESOLUTION
I would resolve the preliminary objection first before going to the cross appeal.
The Cross Respondents objects to the cross appeal on the ground that Cross Appellants neglect, refusal and failure to file the brief for all the proper parties in their correct order.
The input of the 2nd Respondent?s name as Union Homes Savings and Loans Ltd instead of Union Homes Savings and Loans Plc was a misnomer and not a replacement of parties. The Cross Respondents was not mislead by the use of ?Ltd?. It did not occasion any miscarriage of justice.
A misnomer was defined by the Supreme Court in MAERSK LINE & ANOR v ADDIDE INESTMENTS LIMITED &ANOR (2002) LPELR ? 1811 (SC);
?Misnomer in this sense means, simply, a wrong use of a name. If the entity intended to be used exists but a wrong name is used to describe it that, in my judgment, is a misnomer.? (DISSENTING)
When a misnomer has occurred, it does not render the entire process or proceeding to be struck out.
This Court in ARAB CONTRACTORS NIG LTD v EL ? RAPHAAL HOSPITAL & MATERNITY (2009) LPELR ? ?
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8735 (CA);
?…The Court has the power to amend the title of an action to show the correct name of the party sued if it is shown to the satisfaction of the Court that it was a case of a misnomer…?
Following from the above, the preliminary objection fails and is dismissed.
The issues in the appeal shall now be resolved together.
For an appellate Court to exercise its discretion to receive fresh evidence certain circumstances need to be in place as stated in OWATA & ORS v ANYIGOR & ORS (Supra); it must provide the missing factual links. It must not be forgotten that there was no contradicting affidavit to the affidavit facts of the Cross Appellants.
The crux before the Tribunal was ?why was the application and cheques not forwarded to issuing house? This was the bone of contention in the petitioners letter, see page 191 of record.
The issue to be considered is; does it meet the conditions of admission in OWATA v ANYIGOR (Supra)?
?
I have carefully perused the contents of the affidavit at pages 9-10 of the Cross
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Appellants? brief and page 226-228 of record, and find that it meets all conditions and contrary to the Tribunal?s finding at page 454-461 of record, they are factual and not speculative and could not be and was not available at the time of Tribunal?s sitting, and extra effort was put in to produce same.
The Cross Appellants/Respondents was unable to produce the evidence within the stipulated time because the rights issue was in 2006, about 4 years after, it needed more time to get any meaningful answer to all the questions and so fell short of the instructions of SEC to comply its evidence within two weeks.
The evidence in question was compiled by Mr. Aderemi Daniels, who filed a written statement of facts, wherein he outlined his findings, that the cheque which Ogada Industries purported to submit in support of its application for 11, 677,420 UHSL shares was defective and that the application form was not correctly filled.
?
The Tribunal rejected the application for fresh evidence to be adduced by Cross Appellants/Respondents, in its ruling held in page 461 (Lines 1 ? 16) of the Record, it held that;
?We believe
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that the use of the words ?would have contributed? in the Cross ? appellant?s statement as shown here demonstrates that they themselves are not sure, first that the non ? compliance in fact caused the omission, and second, that the evidence as a matter of fact would have influenced the decision of SEC was it available before the commission. It is very doubtful that any Tribunal worth its name would have bases its judgment on speculations. For these reasons, we hold, (1) That the Cross ? Appellants/ Applicants herein cannot introduce additional evidence on appeal previously canvassed at the APM, more so, not having done so when they had ample opportunity to raise the evidence before the commission. (2) That the cross ? Appellants? Applicants cannot introduce on appeal additional or fresh facts to contradict facts earlier admitted at trial (3) That the amendment sought herein by the Cross – Appellants/Applicants are in fact an application to put in additional or fresh evidence on appeal not being part of the case at trial, and we therefore reject the application is therefore dismissed .?
I am unable to agree
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with the reasons in the decision of the Tribunal. The documents were exhibited but not examined. There were no contrary documents or facts presented.
Firstly, it was evidence that could not be available by the estimated time given to produce it. It was produced by the company secretary of UHSL upon a full investigation report of the issue; the proof of the issue was not within their custody. See paragraphs 6, 7, 8 -10 of the affidavit they had to resort to Union Registrars Limited, which included eliciting facts from officials who conducted the exercise; considering the time lag in between the rights issues, it was one among several thousand applications not remitted to the issuing house, see page 226 – 228 of the record. It is clear the criteria for the adducing of evidence was met. It was a statutory issue that would have affected the outcome of the lower Tribunals? decision. In my view, it definitely provided answers/link to why the application was rejected and not submitted.
?
The essence was to show that Part B 61 (2) (h) of the regulation was breached and application stands void. Therefore, in the light of the above, the Tribunal exercised
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its discretion wrongly in rejecting the application.
The question that arises in issue 2 & 3 flowing there from is whether the application for shares is rendered null and void, and whether the Cross ? Appellants? receipt of the 1st Cross ? Respondent?s defective Acceptance form and cheque amounted to a waiver.
The Supreme court defined what a waiver was in GABRIEL OLATUNDE V OBAFEMI AWOLOWO UNIVERSITY & ANOR (1998) LPELR ? 2575 (SC);
?…waiver is defined as the abandonment of a right. To amount to waiver, express or implied two elements must co ? exists namely; (i) The party against whom the doctrine is raised must have knowledge or be aware of the act or omission which constitutes the waiver and (ii) He must do some unequivocal act adopting or recognising the act adopting or recognising the act or omission.?
per IGUH, JSC (PP. 30 -31, PARAS. D ? A)
See also IKECHI OLUE v OBI ENENWALI (1976) LPELR 2612 (SC); EZE v OKECHUKWU (2002) 12 SC (PT. 11) 103; MENAKAYA v MENAKAYA (2001) 16 NWLR (PT. 738) 203 AT 236.
The question that comes to mind is; whether the acts of the
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Cross Respondents amounted to a waiver? The Tribunal in its judgment at page 506, paragraph 5 -6 of Records, held thus;
?The 1st ? 3rd Respondents/ Cross ? Appellants would have bee perfectly within their legal rights to reject the application. In the instant suit, the 1st ? 2nd Respondents/Cross ? Appellants failed to reject or rescind the offer. Additionally, the 1st Appellant/ Cross Respondent?s position has become altered in that it paid for the shares but was thereby denied the use of its funds. Its application was accepted; its name appeared on the global list of subscribers for the Rights issue an was subsequently forwarded to CBN for approval. The 1st Appellant/Cross ? Respondent was also not given the opportunity extended to other Appellants to represent its applications, assuming as in the case of these others, something was wrong with the application (that is, in its case, evidence of payment was lacking). All these facts indicate that the 1st ? 3rd Respondents/Cross Appellants impliedly, and by conduct waived their right to void or rescind the contract. By Section 151 of the Evidence Act, a party
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is estopped, having waived its rights, to prove anything which contradicts its acts to the prejudice of the party who relying upon the belief altered his position.?
It is trite that a statutory provision cannot be waived, the provisions of Rule 61(2) OF SECRR(A) 2006 is attached to the Investment and Securities Act, 1999 as a subsidiary legislation and passed by the National Assembly, therefore it carries the backing of the Act and cannot be waived as it is not a private rights to be toyed with.
The Tribunal was in error when she held that, the Cross – Appellant had waived his right by accepting the forms and cheques. Permit me to say that, these are submitted along with the application forms, and acceptance issued immediately by the in-house upon collation unto submission, then the forms and documents are appraised for compliance. It was at this stage that the defects in the mode of payments and improperly completed forms were noticed and put aside.
Therefore, can it be said that there was waiver at this stage? I entirely disagree. The act states in Part B Rule 61 (2) of the Regulation;
?Applications shall be rejected for
27
any of the following reasons and any allotment made contrary thereto shall be null and void.”
In the light of the statutory provision and the mandatory use of ?SHALL, the application under the rights issue for 11,677,420 shares did not meet the procedure stated in the provision.
Where a statue provides that before a statutory power is exercised and certain conditions must be satisfied, that power cannot be exercised unless terms/conditions have been satisfied and that where a statue prescribes a particular method of exercising a statutory power only that method should be adopted. See AROWOLO v ADESINA (2011) 2 NWLR (PT. 1231) 315; APAPA v INEC (2012) 8 NWLR (PT 1303); AGODA v ENAMUOTOR (1999) 8 NWLR (PT. 615 407); AUCHI POLY v OKUOGHAE (2005) 10 NWLR (PT 931) 297 AT 291; OGUNLAJA v AG RIVERS STATE & ORS (1997) SCNJ 240.
In answer to Section 151 of the Evidence Act relied upon by the Tribunal; the SECRR(A) Act was made specifically for SEC transactions and therefore supersedes the Evidence Act. Therefore, the Evidence Act does not apply. This Honourable Court reiterated this position of the law
28
in NNPC v ZARIA & ANOR (2014) LPELR -22362 (CA) thus;
?The law is that where there are two enabling provisions, one specific and the other general, the Court ought to presume without more that the law maker has intended the specific provision to prevail over the general provision and so to govern the matter. The reason behind this rule is that the legislature in making the special provision considered the particular case and expressed its will in regard to that case, hence the special provision forms an exception importing the negative ? Osahon V Federal Republic of Nigeria (2003) 16 NWLR (Pt. 845) 89, Nigerian Deposit Insurance Corporation V The Governing Council of the Industrial Training Fund (2012) 9 NWLR (Pt. 1305) 252, Abubakar V Nasamu (No. 1) (2012) 17 NWLR (Pt. 1330) 407, Madumere V Okwara (2013) 12 NWLR (Pt. 1368) 303.?
per ABIRU, JCA (P. 54, PARAS. A ? E)
See SUDAN INTERIOR MISSION v BOLAJI & ORS (2013) LPELR ? 24709 (CA); FEDERAL COLLEGE OF EDUCATION OSIELE, ABEOKUTA v AJAYI (2014) LPELR ? 24401 (CA); AMERICA SPECIFICATION AUTOS LIMITED v AMCON (2017) LPELR ? 44016 (CA).
?The application
29
was properly rejected and the manner of initial payment and submission did not amount to a waiver of all breaches. Therefore, the application for 11,677,420 shares in UHSL 2006 Rights issue is rendered null and void by the application of Rule 61(2) of SEC Rules and Regulations (Amendment) 2006.
I also resolve this issue in favour of the Cross Appellants.
In the light of the above, having resolved the three issues in this cross appeal in favour of the Cross Appellant, the cross appeal succeeds and it is hereby allowed.
The judgement of the Tribunal delivered on the 26th of May, 2010 is hereby set aside and the appeal No: IST/LA/APP/02/09 and case no: SEC/M&I/INVTG/R.344/09 are hereby dismissed.
The cost of N200,000 is awarded in favour of the Cross – Appellants.
JUDGMENT
(DELIVERED BY ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA)
This is an appeal against the judgment of the Investment and Securities Tribunal delivered on 26th May, 2010 sitting in its appellate jurisdiction over the Appellant?s appeal and the Respondents? Cross Appeal challenging the decision of the Securities and Exchange Commission in respect
30
of the 1st Appellant?s petition against the Respondents on its application and payment of shares of the 1st Respondents in its Right Issue offering its shareholders three new ordinary shares for every two ordinary shares held by existing shareholders whose name appears in its register of members at the close of business as at 11th August, 2006.
The Appellant dissatisfied filed a notice of appeal on 18/4/13 and its brief of argument dated 28/3/14 was settled by Jonathan Ikheloa of JOE IKHELOA & CO, where five issues were raised for determination;
1. Whether based on ground one (1) of the Appellants Notice of Appeal that the lower Court exercised its discretion judicially and judiciously in the restriction it placed on itself on the appellants initial or earlier petition to Sec erroneously dated 26th March, 2009 for the re-evaluation and determination of the Appellants claims for damages for the established and proven Respondents breach of contract and negligence at the SEC.
2. Whether based on grounds two (2) and (3) of the Appellants Notice of Appeal that the SEC and the lower Tribunal?s concurrent award of the Respondents
31
specific performance of contract is an award of what the Appellants asked for at the SEC and that the concurrent award is in accordance with the settled legal principles for the award of damages for the established and proven 1st and 2nd Respondents breach of contract and negligence.
3. Whether based on grounds four (4) to eight (8) of the Notice of Appeal that the lower Court exercised its discretion judicially and judiciously:
a. In its measurement or computation of the monetary and other reliefs for damages.
b. In its awards of damages against the 2nd Respondent only; and
c. If its award of monetary and other relief for the Appellants claims for damages is adequate and appropriate for the loss the Appellant suffered and is in accordance with the applicable statutory provisions and settled legal principles for the award of damages; for the established and proven 1st and 2nd Respondents breach of contract and negligence.
4. Whether based on ground nine of the Appellants Notice of Appeal that the Appellants are entitled to the payment of interest which naturally flows from the monetary reliefs for the Appellants claims for
32
damages for the established and proven Respondents breach of contract and negligence.
5. Whether based on ground ten of the Appellants Notice of Appeal that the Appellants are entitled to the payment of costs for the institution and prosecution of the case.
The Respondents in response filed its Brief of Argument on the 8/10/15, where it distilled 5 issues, which was settled by Matthias Dawodu Esq., Debo Ogunmuyiwa, Esq. and Yilji Dimka Esq. of S. P. A Ajibade & Co;
1. Whether having regard to the fact and circumstances of this case, the Tribunal restricted itself to Appellants initial petition to SEC dated 26th March 2009 and not to the subsequent petition dated 10th March, 2009 for the evaluation and determination of the Appellants claims for damages? (Ground 1)
2. Whether having regard to the fact and circumstances of this case, the Tribunal?s award of specific performance of the contract was sought by the Appellants in their reliefs before the Tribunal and whether the Appellants are entitled to damages?(Grounds 2 and 3)
3. Whether having regard to the fact and circumstances of this case, and settled principles for award of
33
damages, the Tribunal exercised its discretion judicially and judiciously in its award of damages against the 1st Respondent? (Grounds 4,5,6,7 and 8)
4. Whether having regard to the fact and circumstances of this case, Appellants are entitled to the payment of interest from the monetary reliefs sought before the Tribunal? (Ground 9).
5. Whether having regard to the fact and circumstances of this case, Appellants are entitled to the payment of costs for the institution and prosecution of the case? (Ground 10)
APPELLANTS? ARGUMENTS
Appellants submit that the lower Court in the judgment dated 26th May, 2010 acknowledged that the Appellants replaced their earlier petition dated 26th March, 2009 for the subsequent petition to SEC dated 10th March, 2009.
The Appellants contends that the Appellants petition to SEC erroneously dated 26th March, 2009 from 12th March, 2009, legally speaking ceased to be before the SEC, it was never before the lower Court and could not be the basis for the lower Court?s decision for award of damages.
The Counsel contended that the lower Court deviated from its duty, which is to resolve the issues
34
in the appeal before it because the restriction it placed on itself for the revaluation of Appellants petition and occasioned a miscarriage of justice.
On issue 2, the Appellants submitted that the lower Court awarded specific performance of the contract to the Appellants against the 2nd Respondent for the established/proven 1st and 2nd Respondents breach of contract and negligence. The award is contrary to settled legal principles for the award of damages and the position of the law for the award of reliefs for proven claims for damages as enunciated by the Supreme Court in ILONA v IDAKWO (2003) 11 NWLR PART 830 553 S.C AT PAGE 87.
Counsel posit that the Appellants in their claim for damages in either the amended Notice of Appeal filed with the lower Court, or the Appellants (then Petitioners) petition to the SEC dated 10th March, 2009, did not ask for an order of Specific performance, but prayed for monetary reliefs only in their claims for damages at both SEC and the lower Court; that the lower Court was wrong when it stated that the Appellants asked for the Specific performance of the contract at SEC that it was not based on pleadings nor
35
supported with evidence before either the SEC or the lower Court.
The Appellants therefore urged this Court to exercise its powers to interfere with the lower Court?s perverse conclusion of facts by the re ? evaluation of the documentary evidence before it and draw the correct inferences.
The Appellants on issue 3 adopted its arguments on issue 1 and 2. And went further to submit that in applying the provisions of the SECRR(A) 2007 Schedule VI under Note, the Appellants amended its Notice of Appeal filed with the lower court on 7th October, 2009, measured or computed the monetary reliefs for the Appellants claims for damages for the established and proven Respondents breach of contract and negligence.
The Appellants went further to analyse the appellants? measurement or computation of the monetary reliefs for the claims for damages for the established and proven Respondents negligence and for damages of the Respondents breach of contract with the elements of the provisions of the SECRR(A) 2007 Schedule VI under Note.
?
Appellants concluded that based on SECRR 2007 Schedule VI under Note that the computation or measurement of
36
the monetary reliefs for the Appellants claims for damages in respect of Respondents breach of contract and negligence satisfied all the elements for the valuation of shares at the NSE and urges this Court to hold so.
It is the Appellants submission that, had the lower Court perused and adopted the provisions of the SECRR 2007 Schedule VI under Note for the valuation of shares at the NSE coupled with the legal principles for the award of damages, the lower Court would have awarded the Appellants (unchallenged and un contradicted) computation or measurement of the monetary reliefs for the Appellants claims for damages as in the Appellants amended Notice of Appeal filed with lower Court on 7th October, 2009, that instead the lower Court based on the elements in McGregor in Damages, Sweet and Maxwell 2003; 17ed., Harvey McGregor which are not applicable in the instant case.
The Respondents at the APM held on 8th April, 2009 at the SEC head office, Abuja were ably represented by experienced, highly placed executives and skilled professionals in Nigeria?s capital market.
?
However, none of the representatives of the Respondents challenged or
37
contradicted the Appellants measurement or computation of the Appellants monetary reliefs for the Appellants claims for damages for the established and proven Respondents breach of contract and negligence at either the SEC or the lower Court.
The case of MOGHALU v UDE (2000) FWLR (PT. 14) 2454 C.A was cited in stating the position of the law for the award of damages for negligence is the principle restitio integrum. Counsel relied on NEPA v ALLI (1992) 23 NSCC (PT. 3) 141, AT 157 LINES 48 ? 51; VICTORIA LAUNDRY v NEWMAN INDUSTRIES (1949) 2 K.B 528; HADLEY v BAXENDALE (1894) 9 EX. 34.
The Appellants submit that there is statutory provision in SECRR for the computation of values of shares in Nigeria, the imported elements in McGregor on Damages principles applied by the lower Court is not applicable in the instant case and the award based on the McGregor on Damages principles with due respect are baseless, arbitrary and an abuse of the lower Court?s discretionary powers and therefore null, void and of no legal effect.
The Appellants contended that the lower Court was wrong to decline and refuse to award the monetary relief of
38
N39,085,857.00 which the Appellants introduced for the first time at the lower Court for the Appellants claims for damages for the established and proven Respondents breach of contract. The Appellants submit that had the lower Court averted its mind to the principles of ILONA v IDAKWO (Supra) A PAGE 87, it would have awarded all the monetary reliefs for the Appellants claims for damages for the Respondents breach of contract so as to give effect to the lower Court?s judgment which as in the instant case is a consequential relief which the lower Court has power to award so as to give effect to its judgment.
Appellants further submit in addition that the lower Court was in error in its reasoning and holding that the Appellants claims for damages for Respondents negligence was speculative, and an afterthought. He argued that the lower Court stated that it did not agree with the Appellants permutations but never stated its basis for the said disagreement or the elements of the computation it disagreed with.
Appellants submit that the lower Court departed from its primary duty, which is to determine facts in issue or issues in controversy, when it
39
jumped into the arena of conflict or dispute, raised and drew conclusions on issues it raised suo motu, and delivered its judgment on 26th May, 2010 without giving the Appellants opportunity to contradict or challenge or ventilate their views on the issues the lower court raised.
Counsel cited OJE v BABALOLA (1991) 1 NSCC 550 AT 559 LINES 32 ? 47; OSUMAH v E.B.S (2004) 17 NWLR (PT. 902) PAGES 332 ? 355, PARAS. F ? G and Section 36 (1) of the 1999 Constitution as amended.
The Appellants urges the Court to vary the lower Court?s awards in the judgment delivered on 26th May, 2010.
On issue 4, the Appellants adopted its arguments under issues 1- 3. The Appellants submit that the subject matter of this appeal is a commercial transaction and relied on all the unchallenged relevant facts pleaded in both the Appellants subsequent and subsisting petition to the SEC dated 10th March, 2009 and the Appellants amended Notice of Appeal filed with the lower Tribunal on 7th October, 2009.
?
Applying Section 96 of the Investment and Securities Act, 2007 and Sections 29 and 24 (a) of the Companies Income Act (CITA) CAP 21 LFN as amended, ?
40
the Appellants argued that there is no doubt that interest rate computation on compounded basis is a more accurate way of compensating the Appellants for their monies held by the 1st and 2nd Respondents and kept out of the Appellants? use from the various date applicable to each head of claim.
The Appellants submits on issue 5 that the award of costs is discretionary and the Courts are guided by appropriate principles in the exercise of the discretion and urged this Court to exercise its discretion judiciously and judicially by awarding substantial costs against the Respondents. Counsel relied on SOGUNRO v YEKU (2003) 12 NWLR PT. 853 PAGES 644 ? 667; INT?L OFFSHORE CONSTRUCTION LTD v SHORELINE LIFT ? BOATS NIGERIA LTD. C.A 157 (2003) 16 NWLR PT. 845 PAGES 157 ? 182, PARAS A ? D.
In conclusion, the Appellants humbly urged this Honourable Court to set aside the lower Court?s awards and to uphold all the monetary reliefs for the Appellants claims for damages in the Appellants prayers and to award substantial cost against the 1st and 2nd Respondents.
RESPONDENTS? ARGUMENTS
The Respondents
41
in their brief of argument disagreed that the Tribunal restricted itself to its initial petition to the SEC dated 26th March, 2009 in arriving at its decision. That the Tribunal rather highlighted and compared all the petitions presented by the Appellants before the SEC before making a pronouncement on what constitutes the Appellants? claims against the Respondents.
It is also not in doubt from the records that the Tribunal made an extensive review and analysis of the Appellants petition dated 10th March, 2009 together with the Appellants? Notice of Appeal in its judgment before making a final pronouncement on the Appellants claim before SEC.
Respondents submit that the Appellants? assertion amounts to a misconception of the Tribunal pronouncements.
On Issue 2, the Respondents submit that it is trite that in a situation where a party to a contract has purported to repudiate the contract, the innocent or aggrieved party may either accept the repudiation or make a claim for damages arising from the breach or may refuse to accept repudiation and seek specific performance. Counsel relied on ABDU MANYA v IDRIS (2001) 8 NWLR (PT. 716) 730.
42
Respondents argued that the Appellants by letter dated 4th June, 2007, was notified by the 3rd Respondents? that its right issue was rejected and that its refund for the payment was ready and that the Appellants refused to collect this money. The computations and claims sought by virtue of the Appellants petition dated 10th March 2009; the Appellants sought for damages for loss in the market values of shares, dividends and bonus shares.
The Appellants therefore, showed interest in retaining the shares rather than money in lieu of shares. They refuse to collect money for the failed right issue and also did not ask for the return of the money paid for shares; rather they requested for the equivalent of the loss in market value of shares; dividends and bonus.
?
It is the Respondents? submission that the Appellants are not entitled to damages and however, assuming that the Appellants are entitled to damages, it is the Respondents? further submission that the finding of facts leading to the award and measurement of damages against the Respondents was perverse and ran contrary to general principle underlining assessment of damages.
43
In the absence of facts, materials or records before the Tribunal to justify its arrival at such findings of facts. Counsel cited A.T.E CO. LTD v MIL GOV., OGUN STATE (2009) 15 NWLR (PT. 1663) 26; EGBE v ADEFARASIN (1987) 1 NWLR (PT. 47) 20 A- D.
The Respondents submit therefore that the findings of fact and pronouncement made by the Tribunal which are perverse and prejudicial to the interest of the Respondents.
On issue 4, the Respondents adopts and reiterate all their arguments under their issue 3 in support of ground nine of the grounds of appeal on the issue of interest payable on Appellants alleged monetary reliefs that they are totally misconceived.
?
Appellants argued in their brief that the inclusion of claims for interest on monetary reliefs in their amended notice of appeal should substantiate their claim of being entitled to interest and that the Respondents did not contest or contradict the basis of their computation of interest for monetary reliefs. The Respondents did not contest or contradict the basis of their computation of interest for monetary reliefs, it is on record that the Respondent challenged the validity of the root of
44
the Appellants claims and by necessary implication every other claims of the Appellants.
Respondents challenged the Appellants? non ? compliance with the terms and conditions of the Provisional Allotment Letter during the 1st Respondents Rights issue but the Tribunal held their conduct had waived their rights to complain about the Appellants non ? compliance.
It further contended that it is also apparent on record that the cheque with the 1st Appellant purported to pay for the rights issue was made out and forwarded in the name of the 2nd Appellant who was then a staff of the 1st Respondent. This fact was also brought to the knowledge of the Tribunal. Respondents therefore, submit that the Appellants claims for interest on monetary reliefs were misplaced.
?
On issue 5, the Respondents submit that it is trite law that cost must follow event, and there was no extra ordinary or unusual expense shown by the Appellants to have been incurred by them under the law. He referred to the provisions of Section 296 of the Investment and Securities Act, 2007 which provides that parties should bear their respective cost in respect of a matter
45
on appeal. Respondents therefore, submit that the Appellants are not entitled to cost as ordered by the Tribunal.
APPELLANTS? REPLY
The Appellants in reply to the Respondents brief of argument, paragraph 4. 3.2, contends that the provisions of SECRR 2005 as amended, Schedule VI Note, which is the applicable statutory rule for the valuation of the monetary value of the 1st Appellant?s entitlement to 2nd Respondent?s 11, 677, 420 ordinary shares N3. 35 per share at Nigerian Stock Exchange on 4th October, 2006, for the monetary reliefs of N39,119,357. 00 for the Appellants claims for damages for the established Respondents breach of contract does not include any of the facts referred to the argument in issue 3 for determination in the Respondents brief.
Furthermore, the Appellants, in reply to the Respondents? brief of argument paragraph 4. 3. 2 contend that the provisions of SECRR 2005 as amended, Schedule VI Note, which is the applicable statutory rule for the valuation of the monetary value of the 1st Appellant?s entitlement to the 2nd Respondent?s 14, 596, 755 ordinary shares which closed at N9.60
46
per share at the Nigerian Stock Exchange on 20th March, 2008, for the monetary reliefs of N140, 129, 040. 00 for the Appellants claims for damages for negligence does not include any of the factors referred to by the Respondents in issue 3 of its brief of arguments.
The Appellants in conclusion urges this Court to dismiss Appellants? claims for damages, and vary the lower Court?s judgment, and uphold the Appellants claim for damages.
RESOLUTION
I have carefully considered the issues for determination raised by the parties, and given their similar nature; the Appellants? issues would be adopted in resolving this appeal.
On issue One, the Tribunal graciously and extensively evaluated the new petition dated 10th March, 2009 and this is clearly shown in page 510 – 511, lines 2 ? 34, also in page 514; line 33, it held thus;
?We have reviewed the Appellants/Cross Respondents petition before SEC dated 10th March 2009 and their Notice of Appeal before the Tribunal dated 7th October, 2009 and the claims in both documents are not essentially different save for the claim of N39,11,357. 00 damages for breach of
47
contract which was only introduced before us, and the claim for wrongful dismissal plus the consequent loss of earnings which was only before SEC.?
Therefore, the above submissions of the Appellants are a misconception of the pronouncement and evaluation of SEC. There was no miscarriage of justice or improper use of its discretion as asserted by the Appellants in paragraph 3. 1. 08 of its brief of argument.
I resolved issue one against the Appellants.
In resolving issue 2 & 3, it is important to note that the Tribunal in its judgment dated 26th May, 2010, pages 520 – 521, lines 24 ? 46; line 1 held;
?We have observed that they have not collected their refund of the failed Rights Issue proceeds since June 4th, 2007, after being notified by the Registrars. We are convinced by the action of the Appellants/Cross Respondents that they were interested in the shares rather than money in lieu of shares.
Furthermore, the Appellants/Cross Respondents did not pray for the return of money paid for shares rather, they asked for loss of value, dividends and bonus shares which suggest their intention to retain the shares.<br< p=””
</br<
48
This matter is an appeal from the decision of SEC, and the Appellants/Cross Respondents asked for specific performance of the contract at SEC; that is allotment of purported shares together with bonuses, dividends and interests thereon. The Appellants/Cross Respondents however prayed for monetary claim in lieu of shares at the Tribunal. This is unacceptable. As an appeal matter the grounds and particulars of appeal must flow from the decision of SEC. Thereby the Appellants/Cross Respondents? prayer for monetary claim fails as it was not proper to raise entirely new issues.
From the foregoing and the demands of the Appellants/Cross Respondents at SEC, we affirm the decision of SEC as it is anchored basically on the claims of the Appellants/Cross Respondents. The demand for monetary claim in lieu of shares is merely speculative, an afterthought, and is hereby refused; so also the interest claim.”
It is imperative to state that, indeed there are guiding principles when it comes to the award of damages. This Court in MTN NIGERIA COMMUNICATIONS LIMITED v MR. GANIYU SADIKU (2013) LPELR ? 21105 (CA) held;
?Now the guiding
49
principle in awarding damages is captured in the maxim restitutio in integrum. See Aluminium Manufacturing Co. of Nig. Ltd vs. Volkswagen of Nig. Ltd. (2010) LPELR ? 3759 (CA); and Ativie vs. Kabelmeta Nig. Ltd. (2008) 10 NWLR (pt. 1095) 399, or (2008) 5 ? 6 SC (Pt. 11) 47 where it was settled per Onnoghen Jsc at pages 28 ? 29 paras. G ? A: ?The principles of assessment of damages for breach of contract is RESTITUTIO IN INTEGRUM ? that is in so far as the damages are not too remote, the plaintiff shall be restored, as far as money can do it, into the position in which he would have been if the breach had not occurred.?
Again, Ogunsakin vs Edu Local Government area,Kwara State & Ors (2011) LPELR ? 8816, on interference with the award of damages of a trial Court, this Court held as follows: ?An appellate Court will not disturb the award of damages of a trial Court unless it is convinced that the trial Court acted on a wrong principle of law or the amount awarded is so high or low that there was an entirely erroneous estimate of damages.? See the cases of Okudo vs. IGP (1999) 1 NWLR (Pt. 535) 335; Gbadebo Shittu Olowoake vs. Yekini Lawal ?
50
(2000) 11 NWLR (Pt. 677) 127 at 151; and Ifeanyi Chukwu Osondu Co. Ltd. Vs. Akhigbe (1999) 1 NWLR (Pt. 625) 1.?
per JOMBO ? OFO, JCA (PP. 42 ? 43, PARAS. C ? B)
See also UNITY BANK PLC v ADAMU & ORS (2013) LPELR -22047 (CA); OGUNDIPE v NITEL & ORS (2015) LPELR ? 24920 (CA); AHANONU v CHUKWUEMEZIE (2015) LPELR ? 40997 (CA).
While an award for specific performance entails that the specific agreement or terms be accomplished. The Supreme Court in ANTHONY IBEKWE v OLIVER NWOSU (2011) LPELR ? 1391 (SC) explained the nature and doctrine of specific performance;
?Specific performance is the remedy of requiring exact performance of a contract in the specific form in which it was made or according to the precise terms agreed upon. It is the actual accomplishment of a contract by a party bound to fulfil it. The doctrine of specific performance is that where monetary damages would be an inadequate compensation for the breach of an agreement, the contractor or vendor will be compelled to perform specifically what he has agreed to do. He can, for example, be ordered to execute a specific
51
conveyance of land.?
per FABIYI, JSC (PP. 10 ? 11, PARAS. D ? A)
See also HELP (NIG) LTD v SILVER ANCHOR (NIG) LTD (2006) LPELR ? 1361 (SC); ACHONU v OKUWOBI (2017) LPELR ? 42102 (SC).
The Appellants expressly prayed for monetary claims in lieu of Shares at the lower Court as seen in pages 111 ? 120 of the Record and in the Tribunal as seen in pages 208 ? 217.
The fact that they did not collect the refund of the failed Rights Issue proceeds since the 4th of June, 2007, does not act as a prima facie evidence or lead to the conclusion that they were interested in the shares rather than money in lieu.
The return of the money paid for shares would not have placed the Appellants in the position they would have been if the breach of contract and negligence did not occur. The 2nd Respondents 2006 Rights Issue was offered and purchased at a discounted price of N1.80 per shares as against the 2nd Respondent?s market share price of N3.35 per share on 4th October, 2006.
The Tribunal was therefore wrong when it held that;
?Furthermore, the Appellants/Cross Respondents did not pray for
52
the return of money paid for shares rather, they asked for loss of value, dividends and bonus shares which suggest their intention to retain the shares.?
The Appellants prayer for loss of value, dividends and bonus shares, does not in any way suggest that they wanted to retain the shares. They indeed claimed for monetary reliefs.
However, the validity of any award whatsoever is predicated on the belief that the Appellant?s application for UHSL 2006 Rights Issue and instrument of payment are valid.
On issue 4, the Appellants computed a measurement of the interest for the monetary reliefs for its claims for damages for the Respondents breach of contract, as shown in page 115 lines 1-3, where they claimed interest of 22% per annum on the monetary relief for the Appellants claims for negligence which shall take effect from 24th March, 2008.
At page 115, lines 11 ? 14, the Appellants demanded that the Respondents shall pay pre ? judgment interest at the rate of 21% per annum for the outstanding dividends with effect from 19th September, 2007.
?
Also, in page 118, lines 4 ? 7, the Appellants also claimed from the
53
Respondents the payment of pre ? judgment interest at the rate of 21% per annum and post judgment interest at the rate of 18% per annum respectively for the monetary reliefs for the Appellants claims for damages for the established Respondents breach of contract with effect from 4th June, 2007.
In the light of Appellants submission, it is important that Section 96 of the Investment and Securities Act, 2007and Sections 29 and 24(a) of the Companies Income Tax Act (CITA) CAP 21 LFN be considered;
Section 96 of ISA, 2007 provides that; ?interest shall be paid for return monies for unallotted shares subscribers to shares issues?
The above statutes seemingly support the Appellants computation for claims for interest.
This Court in FBN PLC v J. O IMASUEN AND SONS NIGERIA LTD (2013) LPELR ? 20875 (CA) held on the circumstances under which interest may be awarded on a monetary claim;
?The position of the law regarding claims for interest is that interest may be awarded by the Court in two distinct circumstances, namely (i) as of right and (ii) where there is a power conferred by statute to do so, in the exercise
54
of the Court?s discretion. Interest may be claimed as of right where it is contemplated by the agreement between the parties, or under a mercantile custom, under a principle of equity such as breach of fiduciary relationship. See TEXACO OVERSEAS (NIG) UNLTD v PEDMAR (2002) 13 NWLR (PT. 785) 526; AND I.T.B PLC v K.H.C LTD (2006) 3 NWLR (PT. 968) 443.?
See also ALHAJI SULEIMAN MODIBBO v ALHAJI DANJUMA HAMMAN JODA (2014) LPELR-24184 (CA); MUDI v FBN PLC (2014) LPELR ? 23446 (CA); TRANSNATIONAL CORPORATION OF NIGERIA PLC v EGBE & ANOR (2017) LPELR ? 42243 (CA).
Considering the above provisions of the law and the cited cases, the Appellants brought their claim for interest under the statutes that provide for it, and which are subject to the discretion of the Court.
On the issue of Costs, it is a trite principle of law, that the award of cost is discretionary and is to be made within the parameters set down by the law. See GBARABE v REGISTERED TRUSTEES OF THE METHODIST CHURCH (2009) LPELR ? 8378 (CA); NNPC PENSION v VITA CONSTRUCTION LTD (2016) LPELR ? 41259 (CA); CHUKWUANU v UCHENDU ORS (2016) LPELR ?
55
41022 (CA).
It is also a general rule of law that cost follow events and a successful party is entitled to cost. This is different from the prosecution of the case; in that evidence must be shown of legal fees incurred which were not done herein, therefore, it cannot stand. The award of cost and its quantum or its refusal is at the discretion of the Court but such discretion must be seen to have been exercised judicially and judiciously, in this case, there was no award on cost but the appellant had expended time in the conduct of his case he is entitled to costs.
At this junction, I must state that any award of monetary compensations and damages shall be consequent upon the Court findings that the Appellant?s application for UHSL 2006 Rights Issue and instrument of payment ab initio are valid. Having analysed and found in the Respondents appeal (Cross Appeal) that the Tribunal wrongly applied and interpreted the statutory regulations applicable to this transactions specifically; the RULE 61 (2) H of SECRR(A), 2006 which effectively nullified the Appellants (herein) application and rendered it void. The Appellants are therefore not entitled to
56
the monetary/damages claims herein.
I hereby adopt all analysis in the judgment in the cross appeal which was allowed.
In the light of the above, the appeal fails and is hereby dismissed. The judgment of the Investment and Securities Tribunal delivered on 26th May, 2010, delivered by the Presiding Chairman Ariyo B. Okunsanya, is hereby set aside.
There shall be no order as to cost.
TOM SHAIBU YAKUBU, J.C.A.: I had the advantage of perusing the judgment, rendered by His Lordship, ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, JCA., who meticulously resolved all the issues thrown up in the appeal to my satisfaction.
I have nothing more useful to add. I, too dismiss the appeal. The judgment delivered by the Presiding Chairman, Ariyo B. Okunsanya, of the Investment and Securities Tribunal, delivered on 26th May, 2010 is hereby affirmed.
Each side shall bear its own costs of the appeal.
TOBI EBIOWEI , J.C.A.: I have had the privilege of reading through in draft the lead judgment of my learned brother ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA. My Lord
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has succinctly captured all the issues contained in this appeal and pronounced firmly on same. I find the reasoning and conclusions reached therein unassailable and have nothing more to add.
In light of the foregoing, the cross-appeal succeeds and the judgment of the Investment and Securities Tribunal is hereby set aside. Furthermore, the appeal fails in its entirety and same is hereby dismissed.
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Appearances:
Ike ImoFor Appellant(s)
Kolawole Mayomi Omi with him, Busola Bayo OjoFor Respondent(s)
Appearances
Ike ImoFor Appellant
AND
Kolawole Mayomi Omi with him, Busola Bayo OjoFor Respondent