Samuel Osigwe V. Pspls Management Consortium Ltd (2009)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C

This is an appeal against the decision of the Court of Appeal, Abuja, delivered on the 19/4/2007 whereby the appellant’s appeal against the ruling of the INVESTMENT AND SECURITIES TRIBUNAL hereinafter referred to as “the Tribunal”, delivered on 4/2/2004, by which the Tribunal struck out the names of all the respondents, herein, from the proceedings before the tribunal on the grounds inter-alia that the respondents were merely agents of a disclosed principal. The matter started this way: By an Originating Application filed by the appellant in a class action, for himself and as representative of those who have registered to purchase shares in public companies under the Privatization Share Purchase Loan (PSPLS) Scheme against the respondents herein who are sued for themselves and as representatives of all the financial intermediaries engaged in the PSPLS Scheme. The claim of the appellant against the respondents herein and the 1st respondent before the Tribunal i.e, BUREAU OF PUBLIC ENTERPRISES – BPE was for the following Orders:-

“(i) Issuance of an order directing the respondents to suspend the share acquisition Scheme as presently structured until the 1st respondent [BPE] complies with the relevant provisions of the INVESTMENT AND SECURITIES ACT and the Rules/Regulations promulgated there under;

(ii) In the alternative, an Order directing the respondents to immediately comply with the provisions of the ISA and the underlying rules and regulations with respect to the PSPLS by ensuring that the relevant registration/statement/prospectuses are duly filed with and effectuated by the SEC;

(iii) Judgment against the respondents in an amount to be determined at trial as punitive damages;

(iv) Reasonable counsel fees

(v) Costs and expenses for these proceedings; and

(vi) Such other and further relief as the court deems appropriate.”

The appellant alleged that he and the members of the class he represents who registered to participate in the PSPL Scheme designed by the 1st respondent [BPE] have suffered damage because the BPE and the respondents offered and sold shares to him and members of his class in breach of certain provisions of ISA and the rules and regulations issued by Securities Exchange Commission [SEC] pursuant to ISA specifically by not filing the appropriate statements with SEC. The appellant further asserted that the respondents made untrue statements of material facts and omitted to state other material facts which misled the appellant and the members of his class.

By means of Notices of Preliminary Objections the respondents separately challenged among other things the competence of the action against them. In its Ruling delivered on the 12/2/2004 the Tribunal held in part:-

“3” the 2nd – 15th respondents/applicants are not necessary parties to the proceedings, they are agents of a disclosed principal and do not fall within the exceptions to the general rules; accordingly their names are hereby struck out.”

Immediately after the Ruling aforesaid, counsel to the first respondent herein PSPLS MANAGEMENT CONSORTIUM LTD drew the attention of the Tribunal that the first respondent was in the same category with the 2nd – 15th respondents. It was also an agent of a disclosed principal, the BPE, and it was an error not to have included the first respondent in the ruling striking out the other respondents. The Tribunal acceded to the request of counsel and also struck out the 1st respondent as a necessary party to the proceedings and that the omission is only as a result of a typographical error.

The appellant felt unhappy with the decision of the Tribunal and appealed to the Court of Appeal. Upon its consideration of all the issues submitted to it for the determination of the appeal, the Court of Appeal affirmed the decision of the Tribunal and dismissed the appeal of the appellant. The Court of Appeal held:-

“The appellant has failed to draw attention to the provisions of the Investment and Securities Act and the Public Enterprises [Privatization and Commercialization] Act 1999 to exclude the applicability of the general principle of law of principal and agent to the facts and circumstances of this case, or any part of the Investment and Securities Act making the 2nd – 15th respondents directly liable as agents. Moreover the appellant has not disclosed any reasonable cause of action against the 2nd – 15th respondents personally for which he is entitled to a relief which therefore make them a necessary party …”

It was further decided by the Court of Appeal, that the Tribunal has the power to review, set aside and vary its decision by virtue of Rule 74 order (1) and (2) of the Investment and Securities procedure Rules 2002 and that the Tribunal rightly invoked this rule to correct the error of omission made in the final order to cover the 1st respondent herein. The appellant still felt unhappy with the decision of the Court of Appeal and has now appealed to this Court. By the Notice of Appeal, the appellant has filed seven grounds of appeal. In his brief for the appellant, the learned counsel has formulated and submitted three issues for the determination of the appeal:-

“1. Whether the lower court was right in upholding the decision of the Honourable Tribunal which struck out the respondents from the proceedings on the ground that as agents of a disclosed

principal they are not necessary parties to the proceedings …

2. Whether the lower court was right in holding that the appellant failed to draw attention to the provisions of the Investment and Securities Act which excludes the applicability of the general principle of law of principal and agent to the facts and circumstances of this case, or any part of the Investment and Securities Act making the respondents directly liable as agents.
3. Whether the lower court was right in upholding the Honourable Tribunal’s decision which granted the 1st respondent’s oral application to review the Tribunal’s previous ruling by further striking out the 1st respondent from the proceedings.”

Mrs. Akeredolu, the learned counsel for the 1st to 3rd, 5th to 8th and 10th to 14th respondents, Mrs. Ufot for the 4th Respondent and Mr. Eremeh for the 9th respondent adopted the issues as formulated in the appellant’s brief.

Issues One & Two together.

Issues one and two can conveniently be taken together. The appellant submits that the Court of Appeal was in error in upholding the decision of the Tribunal striking out the respondents on the ground that as agents of a disclosed principal, the respondents are not proper or necessary parties because the appellant had made specific allegations against them in that they breached sections 50, 52, 57, 62, 83, 84 and 86 of the ISA and Rules 51 and 110 to 118 of the SEC Rules.

It is submitted that the common law principle that limits the liability of an agent when the principal is revealed does not apply in this case where the respondents are accused of breaches of statutory duties and requirements. It is submitted that the respondents have breached specific statutory duties imposed upon them by statute and as such they cannot claim immunity by pleading the presence of a disclosed principal. Learned Counsel referred to MOFAS SHIPPING LINE [NIG) LTD Vs. NATIONAL MARITIME AUTHORITY (2000) 9 NWLR (Pt.672) 391. It is argued that the exception is not only limited to admiralty cases but to all similar situations. See also NEPA Vs. ONAH [1997] 1 NWLR (Pt. 484) 680. It is argued that the respondents were sued because they breached the statutory provisions of ISA. The claim of the appellant was not based on contract or the common law but was based on statutory duty of the respondents. See paragraphs 21 – 25 of the Originating Application. It is submitted that the statutory provisions envisaged the responsibility of the respondents regardless of their agency status. The words used in the statute are clear and unambiguous and the court has the duty to give the words their natural and ordinary meaning vide ONYEANUSI Vs. MISC. OFFENCES TRIBUNAL, [2002] 12 NWLR (Pt. 731) 227 at 250. See also A.G. of BENDEL STATE Vs. AGBO FODOH [1999] 2 NWLR (Pt. 592) 476.

The common law rule that an agent’s liability is vitiated where the principal is revealed cannot apply in statutory provisions. See ASAFA Vs. ALRAINE [2002] 12 NWLR (Pt 781) 353.

The learned Counsel for the 1st to 3rd, 5 – 8th and 10th to 14th respondents on the other hand submits that the decisions of courts below was based on the overwhelming evidence contained in the Appellant’s Originating Application by which the appellant pleaded that the respondents are agents of the BPE in the implementation of the privatization programme, and that all the respondents were merely appointed as the registration agents. The appellant further pleaded that the PSPLS Scheme is that of the BPE and that the functions of the respondents as the registration agents do not contemplate the violations of the sections of ISA and the rules made there under.

In any event, the respondents are agents of a disclosed principal and are not necessary parties in the suit filed by the appellant. Learned counsel referred to the cases of AKALONU vs. OMOKARO (2003) 8 NWLR (Pt. 821) 190; BAMGBOYE vs. UNIVERSITY OF ILORIN (1999) 10 NWLR (Pt. 622) 290. In the case at hand, it is clear from the records that the respondents acted at all material times in relation to the PSPLS for and on behalf of BPE and in accordance with the BPE’s directives. The appellant himself described the respondents as merely agents in the Originating Application. See paragraphs 1, 2 and 3 thereof.

It is therefore submitted that the respondents are not necessary parties to the disputes herein vide GREEN vs. GREEN (1987) 3 NWLR (Pt. 61) 480. The appellant’s dispute with BPE can be completely decided without the respondents being made parties. The respondents cannot be held responsible or liable for the inaction or action of their disclosed principal. See JOWL PWOL vs. UNION BANK PLC (1999) 1 NWLR (Pt. 588) 631. NIGER PROGRESS LTD. Vs. N.E.L. CORP. (1989) 3 NWLR (Pt. 107). It is further argued that MOFAS case supra is only limited to admiralty cases and cannot apply to the facts for this case and is only limited to the provisions of section 16 of Admiralty Jurisdiction Act No. 59 of 1991.

The learned counsel for the 4th respondent repeated the arguments of counsel immediately referred to and added that the appellant under paragraphs 18 – 34 of his Originating Claim stated the reasons of the suit he has taken. It is submitted that all the allegations of the violations could not be referable to the 4th respondent or to any of the respondents as the registration agents. The only connection between the appellant and members of his class to the 4th respondent and all the other respondents is in paragraph 17 of the Originating Claim where the appellant admitted that the respondents were merely registration agents. Learned Counsel refers to Exhibit ‘A’ in which it is clearly stated that the role of a registration agent is merely that of collection of application forms and registration and that the function of a registration agent is to act as an intermediary and does provide any information to the public. Therefore the 4th respondent is not a necessary party to the suit of the appellant against the BPE Learned Counsel referred to CARLEN (NIG) LTD vs. UNIVERSITY OF JOS (1994) 1 NWLR (Pt. 323) 631. NIGER PROGRESS CASE supra. OKAFOR EZENWA (200) 13 NWLR (Pt. 784) 319.

It is further stressed that the 4th respondents have no role or function to perform outside the registration, so the allegations of the violations of the statutory provisions cannot be attributable to them. It is further added that the decision in MOFAS case is inapplicable to these facts and is limited to admiralty matters. See HILARY FARMS LTD Vs. M. V. MARTHA [2007] 14 NWLR (Pt 1054) 210.

The learned Counsel for the 9th respondent also made similar submissions and I do not think it is necessary for me to repeat what I recorded above.

Now, in his Originating Claim the appellant pleads:-

“17. Pursuant to the 1st respondent’s offer, the applicant and his class approached the registration agents and registered in the Scheme. The applicant was given a PSPLS Form as a guide on how to fill his registration Form. Find attached and marked Exhibit “A” the said PSPLS guide xxxxxx.”

18. In the course of registering in the 1st respondents BPE share acquisition scheme, the applicant and his class relied on the respondents’ publication, press releases, relating to the share acquisition Scheme.
19. However, the aforesaid publications and press releases were false and misleading in at least the following respects;

(i) Although the publications and statements qualify as prospectus, they were neither registered with nor exempted from registration with Securities And Exchange Commission [SEC].

(ii) The publications and statements failed to disclose the financial statements of the public enterprise where shares were the subject of solicitation.

(iii) The statements which purportedly guarantees investors a maximum loan of N10,000.00 at 10% annual interest failed to disclose the expected return on the investment and the correlation between them ..

(iv) The Statement failed to disclose the commission payable to the registration agents xxxxxxxxxxxx.”

“24. By offering to sell the securities to the applicant and his class, the respondents violated the provisions of Sections 50, 52, 55, 57, 62, 83, 84 and 86 of The Investment and Securities Act, 1999 and rules 51, 110 – 118 promulgated there under in one or more of the following particulars:

i. 1st respondent [BPE] permitted unlicensed securities dealers and brokers to participate as registration agents for the scheme when they were in fact not licensed or qualified as brokers/dealers under the aforesaid ISA and the underlying rules/regulations.

ii. Respondents offered the securities to the applicant and his class prior to any registration of the securities or authority given to sell the securities under the provisions of the ISA and the underlying rules/regulations.

iii. Respondents have failed to disclose material information to enable the applicant evaluate the risk vis-‘a-vis the return potential of the public enterprises proposed for initial public offerings to wit: NITEL and Nigerdock Plc.

iv. Respondents engaged in an on-going scheme to issue NITEL and Nigerdock’s securities in violation of the federal securities laws, to inflate and manipulate the market prices of public enterprises securities and to defraud the investing public.

v. To effectuate this scheme, numerous public documents and statements were issued which contained materially false and misleading information as to the revenue, net income and earnings per share of the public enterprises, such as NITEL and Nigerdock, Plc., as well as to the operations and financial condition of the public enterprises.

vi. The Respondents violated Section 86 of the Investments and Securities Act in that the publications, statements and press releases contained untrue statements of material facts and omitted to state material facts necessary in order to make the statements made in light of the circumstances in which they were made, not misleading.”

As has been recorded above the function of the respondents herein was merely the registration of a would be purchaser of the shares under the loan scheme. All the statutory provisions the appellant is claiming to have been breached could only be breached by the BPE who issued all the statements, publications and press – releases. The function of the respondents as pleaded by the appellant is merely to register a would be purchaser of the shares after he has satisfied himself with the information published for the public by BPE. I have carefully considered Sections 50, 52, 57, 62, 83, 84 and 86 of ISA and Rules 51 and 110 to 118 made pursuant to ISA and in my view it has absolutely nothing to do with the respondents. In other words the statutory provisions did not impose any act or duty to be performed by any of the respondents herein. Perhaps, I need to emphasize, that the role of each of the respondents herein as registration agents in the scheme is solely that of collection, collation, certification of the authenticity of the information provided on the registration form and the registration of the participants in the PSPLS Scheme at their respective registration centers.

I am of the view that the appellant has woefully failed to show the existence of any reasonable cause of action against the respondents herein. It is settled law that there must be a cause of action before an intending litigant can initiate any legitimate proceedings. A suit is aimed at vindicating some legal right or claim and such legal right can only arise when certain material facts arise. In the instant case the respondents were merely to register a would be purchaser of shares under the scheme. It was not the function of any of the respondents herein to issue, for example, a prospectus or do any of the statutory functions recited above. See OSHOBOJA Vs. AMUDA [1992) 7 SCNJ 317 at 326.

It is only when facts establishing a civil right or obligation and facts establishing infraction or trespass on that right and obligation exist side by side, a cause of action is said to accrue. See AFOLAYAN Vs. OGUNRINDE(1990) 1 NWLR (Pt. 369) at 382. From the Originating claim, I cannot find any reasonable cause of action revealed by the appellant against any of the respondents herein and it is settled law that it is only the Writ of Summons’ or the Statement of Claim that one has to look at to see if there is a cause of action. See ADESOKAN Vs. ADEGOROLU (1997) 3 SCNJ 1. Again, it is clear from the appellant’s pleading that each of the respondents herein are merely agents of the BPE solely appointed for the registration of would be purchasers of the shares of the public companies to be privatized. The respondents also by the pleading of the appellant, are unmistakably agents of a revealed principal and as agents, they cannot be liable under all the circumstances of this case see OKAFOR Vs. EZENWA [supra]. It is manifestly clear that the respondents acted at all the material times in this matter and in relation to PSPLS scheme as agents and on behalf of the BPE and in accordance with the directives of the BPE. Every action or in-action the appellant complained against the respondent could only arise, if any, in the course of discharging the duties and responsibilities entrusted to them by a known and a fully disclosed principal. An agent acting on behalf of a known and disclosed principal incurs no personal liability. See NIGER PROGRESS Case supra.

I am also of the firm view that the appellant has failed to show that the respondents had any thing to do with the publication of materials complained of and that the statutory provisions did not place any responsibility of the respondents as claimed by the appellant. And as agents of a revealed principal, they are unnecessary parties to this action. I accordingly resolve the first and second issues as formulated by the appellant against the appellant.

Issue 3

This is concerned only with the 1st respondent. The matter arose after the Tribunal had ruled that the 2nd – 15th were improper parties to the proceedings, that the counsel to the 1st respondent PSPLS Management Consortium Ltd. successfully made an oral application urging the Tribunal to review its decision by also striking out the first respondent from the proceedings as it was in the same position as the other respondents who were struck out. The appellant objected to the application on the grounds that there must be a formal application as required by Rule 74 (4) of the Rules. The Tribunal ruled that it was only an omission occasioned by a typographical error when the 1st respondent who was in the same boat with the other respondents was not struck out and the Tribunal corrected the error.

But all the arguments of counsel in this issue is limited to the decision of the Tribunal to review its decision by including the name of the 1st respondent as an unnecessary party to the proceedings. There was no discussion on how the Court of Appeal erred in upholding the decision. It must be emphasized, and it is elementary law, which has been settled, that this court has no jurisdiction to hear appeals from the decision of the Tribunal; the jurisdiction of this court is limited to hear the appeal from the decision of the Court of Appeal. In this issue there is no discussion whatever on how the Court of Appeal erred in upholding the decision of the Tribunal.

In any event, I have very carefully examined the record and have discovered that the Tribunal in the course of delivering its ruling inadvertently referred to the parties which it ordered to be struck out of the proceedings as the 3rd – 15th respondents.

When its attention was drawn to the inadvertence, the Tribunal there and then corrected the error. It is a settled law that there is an inherent jurisdiction vested in courts or tribunals to amend their rulings or decisions to take care of accidental slips or omissions. The exercise of this power should not however, be used to review or rehear the case nor to alter the rights and obligations of the parties under the ruling or order made. See UMMUNA vs. OKWURIWE (1978] 11 NSCC 319 at 324: Obaseki JSC stated:-

“We cannot doubt that under the original powers of the Courts, quite independent of any order that is made under the governing statute, every court has power to correct accidental slips and omissions properly brought to its notice.”

In this connection see also OGUNSOLA Vs. NICON (1996] 1 NWLR (Pt. 423) 126, ASIYANBI Vs. ADENIJI (1967] ALL NLR 88, ADIGUN Vs. A.G. OF OYO STATE (NO.2) (1987] 2 NWLR (Pt 56) 197, MINISTER OF LAGOS AFFAIRS, MINES AND POWER & ANOR. Vs. AKIN OLUGBADE (1974] 1 ALL NLR 226.

The mere fact that there was no formal application in writing did not render the decision wrong. Breach of a rule of practice and procedure does not render the proceedings a nullity but merely an irregularity see SAUDE Vs. ABDULLAHI [1989] 4 NWLR (Pt. 116) 388. By this correction the appellant has not shown that his rights have been affected or that he has suffered any miscarriage of justice. His case against the BPE still subsists and indeed all the allegations of breach of statutory provisions were made against the BPE the principal of all the respondents herein is still a live issue at the Tribunal. I also resolve the third issue against the appellant.

In the result this appeal fails and is dismissed by me. I award to each set of the respondents N50,000.00 costs.

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SC.244/2006