Condition Precedent to the Exercise of Jurisdiction by the Investment and Securities Tribunal

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PREAMBLE

In the words of Abubakar Bashir Wali JSC (as he then was) in SHUGABA v. U.B.N. PLC (1999) LPELR-3068(SC), “It is well settled that where a statute provides for the fulfillment of a condition before an action is commenced, failure on the part of the plaintiff to fulfill the condition will render the entire action and the subsequent trial a nullity, however ably it was conducted.”

The law is therefore to the effect that where a person is expected to take certain steps or fulfill certain conditions before he can institute an action in a Court or Tribunal such condition precedent(s) must be strictly complied with. Failure to adhere to this dictate of the law will make such action an attempt in futility.

For the jurisdiction of the Investment and Securities Tribunal to be activated, the law requires that an aggrieved party must first lay a complaint to the Security and Exchange Commission. It is the decision or determination of such complaint that will activate the jurisdiction of the Investment and Securities Tribunal to adjudicate on such matter. Where an aggrieved party without first making recourse to the Commission institutes an action at the Tribunal, such action is bound to fail as there will be no decision for the Tribunal to evaluate and pronounce upon.

FACTS

United Bank for Africa (1st Respondent) on 23rd of February 2001, advertised for the subscription of its shares and paid the shares of 2,000,000 at N35 per share through the agents of United Bank for Africa. After waiting for the shares, Eze Okorocha (Appellant) was not issued with the share certificate. He thereafter approached the Investment and Securities Tribunal where he filed an Originating Application against the respondents namely: United Bank for Africa Plc, UBA Global Markets LTD, BGL Security LTD, UBA Registrars LTD and Security and Exchange Commission. Pleadings were filed and exchanged, but the Tribunal suo motu raised issue of jurisdiction to entertain the claim and invited parties to address it and later in its ruling of 30th April 2008, it held that it lacked jurisdiction to entertain the matter and also ruled that the Appellant had not taken step by complaining to the Securities and Exchange Commission. 

Dissatisfied with the decision of the Tribunal, the appellant unsuccessfully appealed to the Court of Appeal, hence this further appeal to the Supreme Court. 

ISSUES FOR DETERMINATION

The appeal was determined on the following issues:

(i) Whether the Court below was right in dismissing the appellant’s appeal on the ground that under Section 284 (1) (a) of the Investments and Securities Act 2007, the trial Tribunal lacked the jurisdiction to entertain the appellant’s claim against the 1st-4th respondents. 

(ii) Whether having held that the trial Court/Tribunal had jurisdiction to entertain the application against the 5th respondent alone under Section 284 (1) (d) of the Investments and Securities Act 2007, the lower Court was right in holding that the action against the 5th respondent cannot be sustained and that no valid Order can be made by the Trial Tribunal without joining the 1st- 4th respondents.

DECISION/HELD

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​In a unanimous decision, the Supreme Court dismissed the appeal for want of merit. The concurrent decision of the lower Court and Tribunal was further affirmed.  

RATIO DECIDENDI

  • TRIBUNAL – INVESTMENTS AND SECURITIES TRIBUNAL: Whether there must be a decision/determination on a complaint made to the Securities and Exchange Commission for the Investment and Securities Tribunal to have jurisdiction over a matter

“It would seem to me that the case at hand, before the trial tribunal revolves on the provisions of Section 284(1) of the Investment and Securities Act 2007. The trial tribunal in its ruling delivered on 30th April 2008, after considering the above mentioned provisions held that it lacked jurisdiction to entertain the matter submitted before it for adjudication.

The tribunal further held that the appellant (i.e the applicant herein) by the provision of the Act should first of all, have complained to the Commission before approaching it. It further held that although the applicants had joined the Commission as a respondent, it was doubtful if there was a real triable issue between the applicant and the Commission.

On appeal to the lower Court, the lower Court, inter alia, held that the lower tribunal lacked the power or vires to entertain the action against the 1st to 4th Respondents since the action against the 5th Respondent could not be sustained because no valid order could be made by the lower tribunal against it without joining the 1st to 4th Respondents. I find myself to be in entire agreement with the position of the lower Court as postulated above, because it is trite and well settled law too, that in any declaratory relief sought by a party, it is incumbent upon that party to join all persons/parties whose interest is at stake or who will be directly affected or likely to be affected in the action. It is only if that has been done, that the Court being approached to make such declaratory order, would have the power to entertain and determine the action and could comfortably grant or refuse such order to the parties affected or concerned. I am convinced and I am also at one with the finding of the lower Court, when it held that the tribunal lacked the requisite jurisdiction to determine the appellant’s claim before it against the 1st to 4th Respondents since there was no decision or determination by the Commission i.e the 5th Respondent. Hence, the trial tribunal is devoid of jurisdiction or competence to entertain or determine the appellant’s/applicant’s) claim against the 1st to 4th Respondents, in view of the fact that the 5th Respondent did not pass any decision being challenged before it, as contemplated by the provisions of Section 284(1)(a)(i-iv) of the Investment and Securities Act 2007. The two issues encapsulated in the 1st to 4th Respondent’s brief, which also covered all the issues raised in the 5th Respondent’s Brief of argument, are hereby resolved in favour of all the respondents and against the appellant herein.” Per OKORO, J.S.C. (Pp. 17-19, Paras. D-E).

  • TRIBUNAL – INVESTMENTS AND SECURITIES TRIBUNAL: Whether there must be a decision/determination on a complaint made to the Securities and Exchange Commission for the Investment and Securities Tribunal to have jurisdiction over a matter

“In a nutshell, what is being asked of this Court here and now is whether the decision of the Investments and Securities Tribunal in declining jurisdiction to hear the appellant’s originating application and which decision was affirmed by the Court of Appeal was correct regard being had to the provisions of Section 284 (1) (a) of the Investment and Securities Act 2007.

The provisions of the said section are set out hereunder, 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 Capital Market Operators and their clients;

(iii) Between an Investor and a Securities Exchange or Capital Trade point or Clearing and Settlement Agency;

(iv) Between Capital Market Operators and self regulatory organization.”

That learned counsel for the appellant contends, that section is a negation of the provision of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999.

Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended provides that:

“In the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing by law and constituted in such manner as to secure its independence and impartiality.”

What is called for at this point is the interpretation of the provisions of Section 284(1)(a)(i)-(iv) of the Investments and Securities Act 2007 in relation to the jurisdiction of the trial Tribunal. The provisions of Section 284 are clear and unambiguous and so have to be interpreted within the ordinary and natural meaning. I rely on African Newspapers of Nigeria Limited & 2 Ors v. The

Federal Republic of Nigeria (1985) 2 NWLR (Pt.6) 137 at 156; Owena Bank Nig Plc v. Nigeria Stock Exchange Limited (1997) 8 NWLR (Pt.515) page 1; Amasike v. Reg. Gen. C.A.C. (2010) 13 NWLR (Pt.1211) 337; National Bank of Nigeria Ltd v. Weide & Co Nig Ltd (1996) 8 NWLR (Pt.465) 150.

The principles of interpretation of statues being well settled, it has to be said that the jurisdiction of a Court or Tribunal is not inferred or imagined but statutory. This follows the fact that Courts are set up under the Constitution, Decrees, Act, Laws and Edicts and these are the instruments that cloak the Courts with the powers and jurisdiction of adjudication. Therefore where the statues have not donated jurisdiction to a Court or Tribunal, the Court cannot operate as jurisdiction is not endowed by consent of parties being that jurisdiction is confined, limited and circumscribed by the statute creating it. See Oloruntoba – Oju v. Abdul- Raheem (2009) 13 NWLR (Pt.117) 83 at 125.

Getting back on track to the matter at hand, the claims against the 1st- 4th respondents resolve around infractions or breaches of the provisions of the Investments and Securities Act while the claim against the 5th respondent is for an order of Court compelling the 5th respondent to sanction the respondents, 1st – 4th for breach of the Investment and Securities Act and the Securities Exchange Commission Rules and the Act. The clear interpretation or purport of what is on ground is that without a decision by the 5th respondent (the Commission) the trial Tribunal would have no jurisdiction to entertain the originating application filed by the appellant against the 1st – 4th respondents. Another way of saying what I am trying to impart is that the condition precedent to the activation of the jurisdiction of the trial Tribunal is that a decision or determination of the matter would have been done by the 5th respondent, the Securities and Exchange Commission firstly. The conclusion therefore is that the Court below was right to hold that the trial Tribunal lacked jurisdiction to entertain the appellant’s claim against the 1st – 4th respondents.” Per PETER-ODILI, J.S.C. (Pp. 34-37, Paras. B-E).

  • PRACTICE AND PROCEDURE – ISSUE OF JURISDICTION: When an objection to the jurisdiction of Court can be raised

“It is stating what has become trite that jurisdiction occupying a fundamental crucial position can be raised at any stage of the proceedings including the appellate level up to the Supreme Court. This important position of a jurisdictional issue gives it that important status for which it can be raised in any form by any of the parties and even suo motu by the Court. Also it can be brought up with, filed and argued with or without leave of Court since there is no given formula on which it could be ignited as an issue. See Shelim & Anor v. Gobang (2009) 5 – 6 SC (pt.ii) 174 at 186; Ejiofodomi v. Okonkwo (1982) NSCC Vol. 13 page 422; Gaji v. Paye (2003) 8 NWLR (Pt.823) 583 at 599 – 600.” Per PETER-ODILI, J.S.C. (Pp. 31-32, Paras. C-A).

 OKOROCHA v. UBA BANK & ORS (2018) LPELR-45122(SC)  

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