International Standard Securities Ltd V. Unilever Nigeria Plc (Formerly Lever Brothers Nigeria Plc) (2009)
LawGlobal-Hub Lead Judgment Report
AYOBODE O. LOKULO-SODIPE, J.C.A.
This appeal is against an interlocutory decision of the Investments and Securities Tribunal (hereinafter simply called “the lower Tribunal”), The Respondent as Applicant before the lower Tribunal commenced this matter by Originating Application dated and filed on 17/11/2004. The Appellant being the Respondent before the lower Tribunal filed a Statement of Defence in the matter on 10/12/2004. On or about 23/2/2005 the Appellant’s present counsel notified the Respondent’s solicitor and the lower Tribunal of the change of counsel vide a letter dated 22/2/2005. Although hearing commenced on 27th day of January, 2005 it did not end three month from 17/11/2004 and was indeed adjourned beyond the period. Given the facts catalogued above, Appellant’s solicitor filed an application praying the lower Tribunal to terminate the proceedings before it. The lower Tribunal in its Ruling delivered on 19th May, 2005 held “that the Respondent’s (now Appellant) application dated 22nd February, 2005 filed on 23rd February, 2005 lacks merit and is hereby struck out. There shall be costs of N20,000.00 in favour of the Respondent/Applicant. This case is adjourned to 22nd June 2005 for further and accelerated hearing.”
Dissatisfied with the Ruling of the lower Tribunal, the Appellant on 26/5/2005 lodged a Notice of Appeal against the same. The Notice of Appeal contains two grounds of appeal. Pursuant to the leave of this Court granted on 13/10/2005 the Appellant amended its Notice of Appeal 10 contain four grounds. The grounds of appeal in the amended Notice of Appeal sham of their particulars read: –
“GROUND NO.1
The Tribunal erred in law when in construing Section 236(5) of the Investments and Securities Act 1999 (ISA), it failed to accord the provision of the Statute with its natural and ordinary meaning.
GROUND NO. 2
The Tribunal erred in law when in interpreting Section 236(5) of the Investments and Securities Act 1999 it held that Efezue v.` Mabadugha (1984) Vol.11 SCNLR 427 which was cited before the Honourable Tribunal “cannot be of much assistance” because Ifezue’s case only dealt with when judgment should be delivered and did not include matters arising in a case from commencement to final address of Counsel. Rather than relying on Ifezue’s case the Tribunal relied on its Rules of Procedure.
GROUND NO.3
The Honourable Tribunal misdirected itself in law when in interpreting Section 236(5) of the Investments and Securities Act, the Tribunal relied on the decision in Ogundele v. Fasu (1999) 12 NWLR (Pt. 632) 662 at 673 and 676.
GROUND NO.4
The Honourable Tribunal erred in law when in interpreting Section 236(5) of the ISA it referred to and relied on the decision in Unongo v. Aku and Emesim v. Nwachukwu (1999) 6 NWLR (Pt. 596) 590 in deciding the Appellant’s application dated 22nd February, 2005 and this without inviting addresses of Counsel thereon.”
The appeal was heard on 23/3/2009. Learned senior counsel for the Appellant C.O.I. Joseph SAN, in urging the Court to allow the appeal relied on and adopted the Appellant’s brief of argument dated 7/11/2005 and filed on 15/11/2005 as well as Appellant’s Reply brief dated 24/5/2006 and filed on the same date. In his oral adumbration learned SAN cited the case of Carrena v. Arowolo (2008) 6-7 SC (Pt. 1) 99; as deciding that the Court of Appeal is bound by its previous decisions.
Learned lead counsel for the Respondent Mrs. J.O. Adesina in urging that the appeal be dismissed relied on and adopted the Respondent’s brief of argument dated 10/5/2006 filed on the same day but deemed to have been properly filed and served on 18/5/2006. In her oral adumbration, learned lead counsel cited the cases of WCC Ltd v. Batalha (2006) 9 NWLR (Pt. 986) 595 at 611-621; Fasel Services Ltd v. NPA (2003) 8 NWLR (Pt. 821) 73 as relevant. The cases decide that a party cannot complain in respect of a wrong from which he has benefited.
Learned SAN in replying on points of law said that the sole issue in this appeal is that of interpretation of the provision of ISA. This is what the lower court decided. The issue of adjournment he further said is an exercise of discretion and there is no appeal against the same.
Two Issues are formulated for the determination of the appeal in the Appellant’s brief, The Issues read thus: –
“(a) Whether or not Section 236(5) of the Investments and Securities Act 1999 (ISA) should be given its natural and ordinary meaning ALTERNATIVELY Whether or not Section 236(5) of ISA is mandatory Grounds 1 to 3).
(b) Whether or not the Honourable IST should have suo motu raised the issue of constitutionality of section 236(5) ISA and decided the Appellant’s Application thereon without inviting addresses of Counsel on the issue (Ground No 4).
A sole Issue was formulated for the determination of the appeal in the Respondent’s brief. The Issue reads thus: –
“Whether the inability of the investment and Securities Tribunal to determine a proceeding before it within three months from the date of filing the action renders the proceeding a nullity.”
The appeal will be determined upon the Issues formulated by the Appellants as they actualize the grouses in the grounds of appeal better than the sole Issue formulated by the Respondent.
APPELLANT’S ISSUES 1 AND 2
The Appellant argued the two Issues together in its brief of argument as according to it, they dovetail into one another.
Dwelling on the interpretation to be accorded the provisions of Section 236(5) of the ISA, the Appellant said to the effect that it should be borne in mind that the jurisdiction now being entertained by the lower Tribunal was hitherto exercised by the Federal High Court and in this regard referred to Sections 241(3) and 242 of the ISA.
The Appellant submitted that the very first principle of interpretation of statutes is to give the words therein their ordinary meanings. That against this backdrop it is clear that the objective of creating the lower Tribunal and removing the hitherto exercised jurisdiction from the Federal High Court is to remove the inordinate delays attendant in the regular courts. That the lower Tribunal is created as a fast track and that this fact has been codified in Section 236(5) of the ISA. It was further submitted that the word “shall” as used in Section 236(5) therefore connotes peremptoriness, mandatoriness and imperativeness. That though the lower Tribunal pursuant to the proviso of Section 236(1) can exercise some discretionary powers in extending time in circumstances set out thereunder, no such provision is however made under Section 236(5). Invoking the maxim expression unius personae vel rei est exclusio allerves, the Appellant submitted that Section 236(5) of ISA prohibits any extension or elongation (from the commencement of action to a final determination thereon beyond the statutory three months in the exercise of the jurisdiction conferred on the lower Tribunal. The case of Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1 at 29 was cited to show that an action is commenced when the originating process is filed and it was submitted that a court or tribunal disposes of an action before it finally, upon the delivery of judgment wherein the rights of parties are determined. The Appellant submitted that the provision of Section 236(5) of the ISA in the ordinary sense therefore demands that the exercise of the jurisdictional powers conferred on the lower Tribunal must not exceed a period of three months from the date of filing of the originating process. That to the lawmaker anything beyond the three months from the date of commencement is an undue delay. In any event the Appellant submitted to the effect that if the lower Tribunal says that the statutory three months period is to run from the hearing (which is not conceded) then on the authority of Akoh v. Abuh (1988) 3 NWLR (Pt. 85) 696 at 713, the period from commencement of hearing to delivery of final judgment must not exceed the three months statutory period. The case of
Akoh v. Abuh (supra) was cited on the issue that hearing is defined as or connotes ‘commencement of a matter to the delivery of final judgment’.
Dwelling on the reliance on Section 237(1) of the ISA (which empowers the lower Tribunal to make rules regulating its procedure) in interpreting the provision of Section 236(5), the Appellant submitted that this was a clear misdirection in law because the Investments and Securities Tribunal (Procedure) Rules 2003, is a subsidiary legislation that must conform with the spirit of the ISA and which transcended the said Rules, The case of Onurah v. Kaduna Refining Co. Ltd (2005) 2 SC (Pt. II) 1 at page 6 was cited on the principle that it is not the Rules of Court that vests jurisdiction in a court but rather the statute creating the court. Also the cases of Phoenix Motors Ltd v. NPFMB (1993) 1 NWLR (PI. 272) 718 at 728: Din v. Federal Attorney-General (1988) 4 NWLR (PI. 87) 147 at 187; and Odeneye v. Efunuga (1990) 7 NWLR (Pt. 164) 618 at 625 were cited to show that subsidiary legislation derives its validity from the enabling law and therefore must be in conformity with the same. It was thus submitted that in the light of the cases, the words of Section 236(5) are plain and clear enough and ought to have been given
their ordinary meanings without reference to any subsidiary legislation in the form of the Rules of the lower Tribunal which must be in conformity with the enabling law and not the other way round, The holding of the lower Tribunal that the 3 months stipulation under Section 236(5) of the ISA would not be inclusive of the period of settling all pre-trial formalities was said to have done injury to the provisions of the said Section. Furthermore, it was submitted that the lower Tribunal engaged in the re-drafting of the statute; an exercise which it lacks the competence to do as it is not in compliance with the principle of separation of powers for a court or tribunal to carry out legislative functions under the guise of its interpretative competence, The cases of African Newspaper v. Nigeria (1985) 2 NWLR (Pt. 6) 137 at 159-160 was cited in this regard,
The point was made that where hearing exceeded the statutory period, the lower Tribunal possesses the competence after addresses of counselor upon application of either party to terminate the proceedings otherwise it would lead to an exercise in futility and the case of Globa v. Akereja (1988) 3 NWLR (Pt. 84) 508 at 520 was cited in aid.
The Appellant also submitted to the effect that the ISA which came into force on 26th May, 1999 is deemed to be an existing law by virtue of the combined reading of Sections 315(1) and (4)(b) of the 1999 Constitution; and also that by virtue of 316(1) of the Constitution the lower Tribunal is deemed to have been established thereunder and is constitutionally empowered to continue to function pursuant to the provisions of the enabling statute. That for this reason the statutory limitation of three months shall also continue to apply until the ISA is amended by the legislature and not by the court or the Tribunal in recognition of the principles of separation of powers. Reasonable time as contained under Section 36(1) of the 1999 Constitution according to the Appellant has therefore been defined as three months for the purposes of exercise of power conferred on the lower Tribunal by the ISA. The case of Adigun v. A-G Oyo State (1987) 1 NWLR (Pt. 53) 678 was cited in aid.
Dwelling on the reliance on the case of Ogundele v. Fasu (1999) 12 NWLR (Pt. 632) 662 at 676 by the lower Tribunal in holding that the Appellant had to demonstrate what miscarriage of justice non-compliance with the provision of Section 236(5) would occasion it, or has occasioned it, the Appellant submitted if the lower Tribunal had afforded counsel for the parties the opportunity of addressing it on the constitutionality of the provision in question, before deciding the application before it on that point, the benefit of the argument now made in the instant appeal would have been available to the said Tribunal. The cases of Okere v. Amadi (2005) 5 SC (Pt. 1) 1 at 9 and Stirling Civil Engr. V. Yahaya (2005) 4 SC 124 at 134, 142 at 143 were cited in aid. The Appellant submitted that the decision in the Ogundele case was not relevant to the interpretation of Section 236(5) of the ISA but rather it is the decision of the Supreme Court in Ifezue v. Mbadugha (supra). The reasons for this were duly set out in the Appellant’s brief. The Appellant further submitted that all the other cases relied upon by the lower Tribunal including that of Unongo v. Aku were not relevant and the reasons for this were also set out in the Appellant’s brief.
In its brief of argument, the Respondent referred to Section 36(1) as providing that both sides to a dispute brought before a court of law should be seen as being given a reasonable opportunity to present their respective cases. The case of Effiom v. State (1995) 1 NWLR (Pt. 373) 507 at 621-622 was referred to as providing the meaning of “reasonable time” which is “moderate, tolerable and in excessive”, The Respondent while saying to the effect that the Constitution has already provided that there should not be undue delay in the dispensation of justice and thereby giving recognition to the maxim “justice delayed is justice denied” equally said that the courts have also always been enjoined to refrain from hurrying proceedings as “hurried or rushed judicial proceedings equally lead to a denial of justice”, The case of Agbogu v. Adiche (2003) 2 NWLR (Pt. 805) 509 at 536 was cited in aid.
Sections 1(3) and 4(8) of the 1999 Constitution were referred to as stipulating that any law that is in conflict with the provisions of the said Constitution is void to the extent of the inconstancy and the cases of Jimoh v. Olawoye (2003) 10 NWLR (Pt. 828) 307 at 341-342 and Onagoruwa v. IGP (1991) 5 NWLR (pt, 193) 597 at 641 were cited in aid.
The Respondent raised the question as to whether Section 236 (5) of the ISA violates the constitutional provision of fair hearing as enshrined in Section 36 (1) of the Constitution and cited the case of Idehen v. Idehen (1991) 6 NWLR (Pt. 198) 382 at 424 in respect of the warning sounded by the Supreme Court when it comes to interpretation of statutes. Stating that Section 236 (5) of the ISA is indeed to prevent protracted trial period encountered in the High Courts, the Respondent submitted that it was however a canon of interpretation that a court of law should if possible not interpret statutes out of existence.
Dwelling on the issue of miscarriage of justice, the Respondent submitted to the effect that for the Appellant to allege that the action is incompetent, it has to show the miscarriage of justice it has suffered due to the inability of the lower Tribunal to conclude the hearing within three months from the commencement of the action. In this regard reference was made to Section 258(1) of the 1979 Constitution and the case of Igwe v. Kalu (2002) 5 NWLR (Pt. 761) 678 at 724; as well as Section 294 of the 1999 Constitution and the case Oto v. Adojo (2003) 7 NWLR (Pt. 820) 636 at 662, This case the Respondent said enunciates the principle, that failure to meet the time allowed by law in the performance of a judicial duty does not lead to miscarriage of justice and the judicial proceedings should not be declared a nullity. Applying the principle to the matter at hand, the Respondent submitted that the failure of the lower Tribunal to determine the same within three months stipulated under Section 236(5) of the ISA is not fatal as it has not led to a miscarriage of justice and that there was no basis for the Appellant’s submission that the proceedings be declared a nullity.
Dwelling on whether Section 236(5) of ISA is unconstitutional and void, the Respondent submitted that it is. In this regard, the Respondent relied on the provision of Section 315 of the Constitution which deemed the ISA to be an existing law and Section 6(4) which deemed the lower Tribunal as a court established by the National Assembly as well as Section 294(1) which provides for the time frame within which a court shall deliver its judgment. The cases of INEC v. Musa (2003) 3 NWLR (Pt. 806) 72 at 157; Unongo v. Aku (1983) NSCC 563; and Ukpo v. Adede (2000) 10 NWLR (Pt. 674) 19; were also cited in aid. This Court was urged to hold that Section 236(5) of the ISA is unconstitutional and void being inconsistent with the provision of the Constitution.
It its Reply brief, the Appellant submitted that the case of Agbogu v. Adiche (supra) was not relevant in the circumstances of the instant case. It was also submitted that the Respondent having agreed that the essence of the promulgation of the ISA is time, it therefore ought not to give the provision of Section 236(5) the same interpretation accorded the statutes establishing or creating various High Courts. It was also submitted that the requirement to show miscarriage of justice in Section 36(1) of the Constitution is limited to the decisions of courts and not those of tribunals.
It was submitted by the Appellant that the requirement of proof of miscarriage of justice in the circumstances as being suggested by the Respondent is a veiled invitation to read into the ISA particularly Section 236(5) thereof, what the legislature consciously and deliberately left out. This Court was urged to reject the invitation; and the case of Afribank Nigeria Plc v. Akwara (2006) 1 SC (PI. II) 41 at 50 was cited in aid.
Given the submissions of the parties to this appeal hereinbefore reviewed, it is in my view indisputable (and rightly too) that parties are ad idem that upon the coming into force of the 1999 Constitution on 29th May, 1999, the ISA No, 45 of 1999 which came into force on 26th May, 1999, took effect as an existing law and particularly as an Act of the National Assembly pursuant to the provisions Section 315(1) and (2) of the said Constitution, it is in my view also very glaring from the issues formulated by the Appellant for the determination of this appeal that the primary issue for resolution in this appeal concerns or revolves around the proper interpretation to accord the provision of Section 236(5) of the ISA. Section 236(5) in question reads:-
“The Tribunal, shall in the exercise of its powers under this Decree, conduct its proceedings in such manners as to avoid undue delays accordingly, the Tribunal shall dispose of any matter before it finally within three months from the date of the commencement of the action.”
The law would appear to be settled when it comes to the interpretation of the provisions of statutes: and it is that they must be construed literally and the words therein given their ordinary meanings. In this regard see the following cases: –
- ACTION CONGRESS & ANOR V. INEC [2007] All FWLR (Pt. 378) 1012 at pages 1088-1089. In this case, the Supreme Court stated to the effect that the main function of a judge it has consistently been said is to declare what the law is and not what it is supposed to be. This is against the backdrop that the business of law making is that of the legislature. The Judge in the discharge of his primary duty is to give the provisions of the Constitution or statutes, where they are unambiguous, their literal, natural and ordinary grammatical meanings. That a Judge in order to do justice in the exercise of his interpretative jurisdiction must find out the intention of the legislature with regards to the relevant provisions of the Constitution or statute that call for interpretation, demands nothing extraordinary, This is because the intention to be sought is as expressed in the words used in couching any of the provisions in question.
- HON. MICHAEL DAPIANLONG & 5 ORS V. CHIEF (DR) JOSHUA CHIBI DARIYE & ANOR [2007] All FWLR (Pt. 373) 81. In this case the Supreme Court reiterating its position in the case of Fawehinmi v I.G.P. (2002) FWLR (Pt. 108) 1355, etc, stated thus at pages 128-129 “The proper approach to the interpretation of clear words of statutes is to follow them, in their simple, grammatical and ordinary meaning rather than look further because that is what prima facie gives them their most reliable meaning: see ….” This is generally also true of the construction of constitutional provisions if they are clear and unambiguous even when it is necessary to give them a liberal or broad interpretation”.
- ALHAJI SHEU ABDUL GAFAR V. THE GOVERNMENT OF KWARA STATE & 2 ORS [2007] All FWLR (Pt. 360) 1415. In this case, the Supreme Court dwelling on the duty of the court when it comes to statutory interpretation stated at page 1444 thus “It is now settled law that the duty of the courts, is to interpret the words contained in a statute or Constitution in their ordinary and literal meaning. Certainly, it is not the duty of the court, to go outside the words used and import an interpretation which may be or is convenient to it or to the parties or one of the parties.”
4 ATTORNEY-GENERAL OF LAGOS STATE V. EKO HOTELS LIMITED & ANOR [2007] All FWLR (Pt. 342) 1398 where the Supreme Court per Tobi, JSC; dwelling on the interpretation of constitutional provisions stated at pages 1471-1472 to the effect that words in a Constitution bear their ordinary grammatical meaning, when the intention of the maker of the Constitution is clear and can be captured at a glance of the language used. That it is when the meaning is not directly obvious on the face of the language, that the court will investigate the intention behind the use of the language and come out with an interpretation or construction that best fits the apparently hidden intention,
See also the cases of ABAYOMI BABATUNDE V. PAN ATLANTIC SHPPING AND TRANSPORT AGENCIES LTD & 2 ORS [2007] All FWLR (Pt. 372)1721; NZE BERNARD CHIGBU V TONIMAS NIGERIA LIMITED & ANOR [2006] All FWLR (Pt. 320) 984 at 998; and NIGERIAN PORTS AUTHORITY PLC V. LOTUS PLASTICS LIMITED & ANOR [2006] All FWLR (Pt. 297) 1023 at 1040.
The law also appears to be settled as to the interpretation to be accorded the word “shall” when used in a statute or provision of the Rules of Court. In this regard, see the case of OGIDI V. THE STATE [2005] All FWLR (Pt. 251) 202 at pages 231.232. Indeed the Supreme Court in the case of DIOKPA FRANCIS ONOCHIE & ORS V. FERGUSON ODOGWU & ORS [2006] All FWLR (Pt. 317) 544 made it clear that the word “shall” when used in a statute or rule of court, makes it mandatory that the rule or provision, must be observed. In this regard reference was made to the cases of Mokelu v Federal Commissioner for Works & Housing (1976) 3 SC 35; Madam Alake Aroyewun v Joseph Adebanji (1976) 11 SC 33; and Amokeodo v. Inspector-General of Police & 2 Ors (1999) 5 SCNJ 71 at 81-82; as well as the meaning of the word “shall” as stated in Longman Dictionary which is that “shall” is used to express a command or exhortation, or what is legally mandatory. See also the decision of this Court in the case of MR. EMMANUEL IMON OKON & 2 ORS V. CHIEF KENNETH BASSEY UBI & ORS [2006] All FWLR (Pt. 328) 717 where it was held to the same effect that the word “shall” when used in a statute or rule of court makes it mandatory that the rule must be observed. That the word “shall” is a word of command and denotes an obligation thereby giving up room for discretion.
Now, the lower Tribunal in arriving at the interpretation to accord the provision of the second limb of Section 236(5) of ISA in its Ruling did not find the Ifezue case relied on by the Appellant’s counsel in his submissions, of much assistance, See page 165 of the Records, The lower Tribunal relying on the pronouncements of Uwais, JSC (as he then was) in respect of sections 129(3) and 140(2) of the Electoral Act, 1982 in the case of Unongo v Aku (supra); and the challenges it has to surmount having regard to the rules regulating its proceedings made pursuant to Section 237(1), held thus at page 168 of the Records:-
“We therefore, hold that any law which deprives or has the likelihood to deprive any person fair hearing within a reasonable time by a court in the determination of his civil rights and obligations is inconsistent with section 36(1) of the 1999 Constitution.”
Having held as quoted above, and having also stated to the effect that what is “reasonable time” within the purview of Section 36(1) of the Constitution is to be determined in the circumstance of every case, the lower Tribunal declared that the three months stipulated under Section 236(5) of the ISA would not include the period of pre-trial formalities and concluded that: –
“It cannot possibly be the intent of the Act that the action will commence upon the mere filing of an originating application and therefore the three months period does not begin to run upon application but upon hearing. A strict interpretation of the subsection will offend the intent of the Act and result in denial of fair hearing.”
At page 169 of the Records, the lower Tribunal, while agreeing with the submission of the learned senior counsel for the Appellant that a statute is to be given its ordinary meaning where the language is plain, however said to the effect that this can only be so as long it does not lead to absurdity, or impracticable consequences. That where it would result in these, then the statute should be construed according to “expressed intention”. It was also the position of the lower Tribunal that if it were to concede to the submission of the learned senior counsel for the Appellant that Section 236(5) of ISA and Section 258(1) of the 1979 Constitution have the same effect in respect of a decision becoming a nullity for non-compliance with the time frame for the doing of an act, then the Appellant had to establish the miscarriage of justice that has been occasioned it, or is likely to suffer by reason of its (i.e. lower Tribunal’s) failure to complete the instant case within three months.
Furthermore, the lower Tribunal having taken into consideration the cases of Unongo (supra); Emesim v. Nwachukwu (1999) 6 NWLR 154; and Bamigboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290 at 348 said thus at pages 175-176 of the Records: –
“In the present application under consideration, this Tribunal is expected to strive to do everything possible to keep within the time limit in the statute. In the case of Amadi Vs NNPC, (2000) 10 NWLR Part 674, page 76 at 97, paragraphs G – H, the Supreme Court held that if the word ‘shall’ is used in the directory sense then the action to be taken is to obey or fulfill the directive substantially.
We believe the Tribunal has substantially complied with the statutory time limit in dealing with the substantive originating application. This Tribunal since inception and particularly in this case has cultivated the practice of carrying out expeditious adjudication. The mischief sought to be addressed in putting time limit under section 236 (5) of ISA is to avoid undue delays in the Tribunal’s proceedings. Under Rule 2 of the IST (Procedure) Rules the Tribunal is enjoined in its overriding objective to deal with cases fairly and justly which includes dealing with cases in ways which are proportionate to the complexity of the issues and to the resources of the parties. If it entails going out of the three months time limit to get a fair and just determination of a case we do not think the proceeding will be a nullity on this ground notwithstanding the use of the word ‘shall’ under the subsection. In essence we hold that failure to observe the directive contained in section 236 (5) of ISA is not fatal to the present proceeding and that the word shall is merely directory.
As earlier stated in this judgment, this suit was filed on November 17th 2004 and came up for hearing on 28/1/2005. In line with the requirement of section 236 (5) of ISA, which states that the Tribunal shall conduct its proceedings in a manner to avoid delay, the Tribunal can only conduct its proceedings when a mailer is listed for hearing and not when the action was filed. The actual date of commencement of this suit was on the 28/1/2004 (sic) which was the date the hearing commenced in the mailer before the Tribunal.”
It is glaring from the cases I have cited hereinbefore that the first principle or canon of interpretation is to give the provisions of the statute being interpreted their literal, natural and ordinary grammatical meanings once the provisions in question are unambiguous. Even when a court in the exercise of its interpretative jurisdiction has to find out the intention of the lawmaker, the court is still duty bound to discover the said intention from the words used in couching the provisions in question.
The provision of Section 236(5) of ISA has earlier been reproduced in this judgment. The pertinent question to ask having regard to the provision is whether it is in anyway ambiguous? The lower Tribunal never said that the provision in question is ambiguous in any respect anywhere in its Ruling. I have painstakingly perused the said provision and I am of the humble opinion that there is nothing ambiguous therein. All that the provision says is the lower Tribunal in the exercise of its powers must conduct its proceedings in such ways as to avoid undue delays and in the light of this objective, it must dispose of any matter before it to finality within three months of the commencement of the action.
I am of the humble view that it is most glaring from the various portions of the Ruling appealed against hereinbefore quoted in this judgment, that the lower Tribunal definitely did not accord the provision of Section 236 (5) of ISA which is in no way ambiguous its literal, natural and ordinary meaning.
The lower Tribunal relying on the Unongo case as well as the Emesim case held the provision in question to be inconsistent with the provision of Section 36(1) of the 1999 Constitution which guarantees fair hearing within a reasonable time; and that the word ‘shall’ as used in the said Section 236(5) of the ISA is directory,
In its brief of argument the Respondent too has argued to the effect that the provision of Section 236(5) of ISA is unconstitutional. In this regard the Respondent argued that the lower Tribunal is deemed to be a court established by the National Assembly pursuant to Section 6(4) (a) of the Constitution. That in view of the provision of Section 294(1) of the Constitution the provision of Section 236(5) is unconstitutional and void to the extent of the inconsistency.
The 1999 Constitution in Section 6 deals with the ‘judicial powers’ of the Federation and States respectively. The section vests the ‘judicial powers’ of the Federation and of the States respectively in the courts established by the Constitution for them. The courts are itemized in subsection (5)(a) – (k) of Section 6 in question. It is however worthy to note that by subsection (3) of Section 6, only the courts listed in subsection (5) (a) – (i) are the superior courts in Nigeria.
In its brief of argument, the Respondent said that the lower Tribunal is deemed to be a court established by the National Assembly pursuant to subsection (4)(a) of the said Section 6. The provision of the subsection reads:
“(4) Nothing in the foregoing provisions of this section shall be construed as precluding –
(a) the National Assembly or a House of Assembly from establishing courts, other than those to which this section relates with subordinate jurisdiction to that of a High Court.”
The lower Tribunal must be a court with subordinate jurisdiction to the High Court if indeed it is established pursuant to the above quoted provision.
Chapter VII of the 1999 Constitution deals with the Judicature. The hierarchy of the superior courts in Nigeria are shown in the said Part, Also shown in the Part are the criteria for appointing the heads of the courts in the hierarchy as well as other Justices or Judges for the courts in the hierarchy amongst others.
Section 153 of the Constitution established the Federal Judicial Service Commission amongst others. The Federal Judicial Service Commission amongst others advises the National Judicial Council in nominating persons for appointment in respect of the offices of (i) the Chief Justice of Nigeria; (ii) a Justice of the Supreme Court; (iii) the President of the Court of Appeal; (iv) a Justice of the Court of Appeal; (v) the Chief Judge of the Federal High Court; (vi) a Judge of the Federal High Court; and (vii) the Chairman and members of the Code of Conduct Tribunal.
Part XIV of the ISA No. 45 of 1999 deals with establishment, jurisdiction, authority and procedure of the lower Tribunal. It is clear from the provision of Section 225 (i) that the appointing authority of the nine members of the lower Tribunal (one of whom shall be the Chairman) is solely the Minister; (ii) that the Chairman shall be a legal practitioner qualified to practice for not less than 15 years and with cognate experience in market matters; and (iii) that the quorum of the lower Tribunal at any of its sitting shall be five including its Chairman or any member appointed to be the Chairman in the absence of the person appointed in that regard by the Minister. Furthermore, it is the Minister that specifies the mailers and places in relation to which the lower Tribunal may exercise jurisdiction pursuant to Section 224; while Section 234 equally sets out the mailers, disputes and controversies in respect of which the lower Tribunal has power to adjudicate. Section 243(1) also creates a right of appeal from the decision of the lower Tribunal to the Court of Appeal on points of law in the first instance while Section 244 creates a right of further appeal to the Supreme Court against the decision of the Court of Appeal.
What can be deduced from all that has been catalogued above, particularly from the manner of appointment of Justices/Judges of the Courts in the Federal Judiciary vis-a-vis, the manner of appointment of members of the lower Tribunal, clearly is that the lower Tribunal does not qualify as “a court” established pursuant to Section 6 of the Constitution or one deemed to have been so established there under; talk less of its being subordinate to the High Court in jurisdiction having regard to rights of appeal against its decisions. The lower Tribunal in my humble view is simply a specialized Tribunal set up for specific purposes; the foremost being to deal with disputes arising in capital market matters avoiding undue delay, and at any rate within three months from the date of the commencement of the action brought before it.
The Oxford Advanced Learner’s Dictionary (6th Edition) gives the meaning of “court” as (1)”the place where legal trials take place and where crimes, etc are judged” and “the court” as “the people in a court, especially those who make the decisions, such as judges and jury.” The said Dictionary also gives the meaning of “tribunal” as a type of court with the authority to deal with a particular problem or disagreement.” Osborn’s Concise Law Dictionary (Seventh Edition) equally gives the meaning of “court” as “(1) a place where justice is administered; (2) the judge or judges who sit in court; and (3) an aggregate of separate courts or judges” and “tribunal” as “bodies with judicial or quasi-judicial functions set up by statutes and existing outside the usual judicial hierarchy.” It is my humble view that the various but near identical meanings of “court” and “tribunal” as stated above, reinforce the view I earlier expressed that the lower Tribunal is not a court, While it is conceded that the two words are often used interchangeably when speaking loosely, they however do not mean the same thing and cannot mean the same thing when they occur in statutes, This is particularly so in the case of the Constitution where the word “tribunal” never occurred at all in Section 6; while at times in the same Constitution reference is specifically made to the said words “court” or “tribunal”.
Section 294(1) of the 1999 Constitution applies to every court established under the Constitution. Before now, I have found that the lower Tribunal does not qualify as a court established pursuant to Section 6 of the Constitution or one deemed to have been established thereunder. Accordingly, I hold that the provision of the said Section 294(1) is not applicable to the lower Tribunal. A fortiori the provision of Section 236(5) of the ISA cannot be held to be inconsistent with that of Section 294(1) of the Constitution, because the said provision (i.e. Section 236(5)) stipulates that the lower Tribunal must dispose of any matter before it finally within three months from the date of its commencement; whereas that of Section 294(1) of the Constitution gives the courts a period of ninety days within which to deliver their judgments after conclusion of evidence and final addresses as submitted by the Respondent.
I am aware that the Respondent in submitting that the provision of Section 236(5) of the ISA is inconsistent with the provision of Section 294(1) of the Constitution relied on the Unongo case just as the lower Tribunal did in holding that the said Section 236(5) is inconsistent with the provision of Section 36(1) of the Constitution. The Appellant has stated in its brief of argument that the lower Tribunal raised and determined on the constitutionality of Section 236(5) without inviting learned counsel for the parties to address it on the issue, There is no doubt that the lower Tribunal acted as stated by the Appellant.
In holding the provision of Section 236(5) to be inconsistent with that of Section 36(1) of the Constitution, the lower Tribunal stated to the effect that the three months period stipulated for it to finally dispose of any matter before it was not “reasonable time” and thereby deprives litigants before it of their constitutional right to fair hearing.
I have read the Unongo case and it definitely does not decide that the stipulation of time period for a tribunal within which it is to discharge its adjudicatory duty is unconstitutional. The matter that was considered in the Unongo case is an election petition which the High Court entertained as a superior court of record established pursuant to the provision of the Constitution then in force. It was for this reason that the Supreme Court in the case looked at the effect of the time period provided for the conclusion of an election petition vis-a-vis the time limit that a court established by the said Constitution had for the delivery of judgment amongst others and came to the conclusion that sections 129 (3) and 140(2) of the Electoral Act, 1982 were unconstitutional. I have earlier found the lower Tribunal not to be a court established under the 1999 Constitution and also that it cannot be deemed to have been established thereunder. It is pure and simple a Tribunal established by the National Assembly to discharge judicial functions in relation to some matters specified in the ISA. The Constitution did not state what amounts to a reasonable time”, but there is nothing in the Constitution that precludes the National Assembly from determining what it considers as “reasonable time” for the discharge of the functions it has placed on the lower Tribunal. This is all that the National Assembly has done by Section 236(5) of ISA. The reliance on the Unongo case in voiding the provision of Section 236(5) is therefore wrong. The fact that the lower Tribunal by the statute creating it is charged with the duty to adjudicate on specific matters does not vest in it all or any of qualities/powers the Constitution has provided for courts established by it or deemed to be established thereunder.
In the Appellant’s brief of argument, it was stated to the effect that prior to the enactment of the ISA; the jurisdiction now vested in the lower Tribunal was being exercised by the Federal High Court. That the objective of creating the lower Tribunal and removing the hitherto jurisdiction from the Federal High Court is to remove the inordinate delays which are attendant in the regular courts. That the lower Tribunal was created to fast track proceedings in relation to the mailers it is to entertain. The Respondent agreed with the Appellant on these. If the mischief the establishment of the lower Tribunal is to cure is for it not to be immersed or distracted with the problems confronting the regular courts, how then can that purpose be achieved by applying the very same provisions applicable to the regular courts to the lower Tribunal? In this regard it should be appreciated that the non-provision of specific time frame for the regular courts to complete the hearing of matters before them can arguable be said to contribute to the delays in the said courts. Indeed, when the mischief rule is applied in interpreting the provision of Section 236(5) of the ISA, it becomes most glaring that the intention of the legislature is that the hearing of an action before the lower Tribunal must be concluded within three months from the date an action before it is commenced.
It is glaring from various portions of the Ruling of the lower Tribunal hereinbefore quoted in this judgment, that the lower Tribunal was greatly influenced by its Procedure Rules in finally concluding that the word ‘shall’ as used in Section 236(5) of the ISA is directory and that it (i.e. lower Tribunal) was thereby not required to dispose of an action before it to finality within three months from the date of its commencement. In fact the lower Tribunal explicitly held that it is not the date of the commencement of an action before it that was to be taken into consideration in calculating the period within which it is to dispose a case before it to finality but the date on which hearing commences in the case.
The Appellant in its brief of argument would appear to have dealt with the issue that rules of procedure cannot legally be used to supplant or derogate from what has been provided for in the statute pursuant to which the said Rules are made. The submissions of the Appellant in this regard in my humble view are impeccable. The simple thing that ought to have been done by those who made the Rules of Procedure of the lower Tribunal was to have ensured that whatever Rules that were designed for the lower Tribunal in the discharge of its functions would not result in three months period stipulated by Section 236(5) being exceeded. And if this was impracticable, then representations should have been made to the Minister to use his good offices to get the statute amended by enlarging the period stipulated for the disposal of cases before it or for an outright deletion of such a stipulation. It is not for the lower Tribunal to do this by resorting to an interpretation that is completely contrary to the words of the provision it had to interpret. The lower Tribunal has clearly shown that it went outside the words used in Section 236(5) of the ISA and thereby succeeded in importing an interpretation which was convenient or beneficial to it. This is not allowed. It is indeed wrong. See the case of ALHAJI SHEU ABDUL GAFAR V. THE GOVERNMENT OF KWARA STATE (supra).
In the light of all that has been said before now, I definitely find the lower Tribunal to have been glaringly wrong in refusing to give the unambiguous provision of Section 236(5) of ISA its literal, natural and ordinary meaning. Furthermore, I hold that if the lower Tribunal had done this it would not have concluded that the word ‘shall’ as used in the subsection is directory. The word ‘shall’ as used in the subsection is clearly mandatory. The lower Tribunal would have appreciated this much if it paid attention to the word ‘accordingly’ that was also used in the said subsection.
The law is clear that an action is commenced upon the filing of the originating process by which it is commenced in the Registry of the appropriate court. There is no basis for applying a different parameter to the lower Tribunal. Indeed the lower Tribunal in holding that time would start to run from the date hearing commenced decided to re-write the provision of section 236(5) of the ISA. There is no competence in the lower Tribunal in this regard.
Given all that has been said before now, the issues formulated for the determination of the appeal cannot be resolved otherwise than in the Appellant’s favour, and they are accordingly so resolved.
Having resolved the issues for the determination of the appeal in favour of the Appellant because the instant action has not been disposed finally by the lower Tribunal within three months from the date it was commenced by the filing of an originating application on 17th November, 2004, it follows that the lower Tribunal ought to have terminated the instant action had it given the provision of Section 236(5) the interpretation now accorded it. The pronouncement of the lower Tribunal to the effect that miscarriage of justice or the likelihood of this must be established before the proceedings in the instant case can be set aside find no support in the provision of Section 236(5) and is nothing but another instance of the lower Tribunal reading into the provision in question what is not therein provided. There is nothing in the provision in question remotely suggesting that the lower Tribunal can, or which permits it (i.e. the lower Tribunal) to continue with a case after the stipulated three months period unless a miscarriage of justice would be occasioned to the parties or either of them. The lower Tribunal therefore again succeeded in reading into the provision what is not contained therein.
In conclusion this appeal is meritorious and it succeeds. The Ruling of Investments and Securities Tribunal delivered on 19th May, 2005 are hereby set aside and the Respondent’s action before the said Tribunal is accordingly struck out.
Costs in the sum of N20, 000.00 is awarded the Appellant and against the Respondent.
Other Citations: (2009)LCN/3315(CA)
