Bonkolans Investment Ltd & Ors V. Central Securities Clearing System Ltd & Ors (2009)

LawGlobal-Hub Lead Judgment Report

AYOBODE O. LOKULO-SODIPE, J.C.A.

This is an appeal against the decision/judgment of the Investment and Securities Tribunal, Abuja delivered on the 29th October, 2004 in Case No: IST/OA/03/2003. The parties in the case are – (1) CENTRAL SECURITIES CLEARING SYSTEMS LIMITED and (2) THE NIGERIAN STOCK EXCHANGE as Applicants and (1) BONKOLANS INVESTMENT LIMITED; (2) LAWRENCE OKWUFULEZE; (3) DIAMOND BANK NIGERIA LIMITED; (4) SECURITIES AND EXCHANGE COMMISSION; (5) B & N INTERNATIONAL LIMITED; and (6) MR. BASIL OKOLIE NKENCHOR as Respondents.

The Investment and Securities Tribunal, Abuja (hereinafter simply called the lower Tribunal) dwelling on the history of this case in its judgment, stated to the effect that it was commenced on 9th December, 2003 by an Originating Application with the present 1st Applicant as the sole Applicant. The 1st Applicant filed an amended Originating Application on 12/2/2004 and yet another one on 22/3/2004 pursuant to its (i.e. lower Tribunal’s) order made on 11/3/2004. It was after this that the 2nd Applicant came into the case and a joint amended Originating Application was filed by the two Applicants on 24/5/2004. The Applicants thereafter filed an amended joint Originating Application on 13/9/2004 pursuant to the order of the lower Tribunal. In its judgment, the lower Tribunal in relation to this process, said thus: “The Applicants filed yet another joint amended originating application on 13/3/2004 pursuant to the order of 10/9/2004 which would appear in the course of this judgment as abandoned as the Applicants now sought to rely on the joint amended originating application dated 11th May. 2004 and filed on the 24th of May, 2004.” (Underlining provided by me). Apart from the joint Originating Applications which the Applicants filed, they also filed documents which they called, Statement of the 2nd Applicant by Mrs. Josephine Igbinosun on 18/6/04; Statement of the Applicant’s 1st witness by Mr. Omonosa Agidigbi on 25/6/04; 2nd witness’ statement dated 26/6/04 by Mrs. Josephine Igbinosun; and another 1st witness statement dated 26/8/04 by Mr. Adebayo Egunbiyi.

I have earlier underlined what the lower Tribunal said in relation to the Originating Application upon which the case before it was tried. The Records of Appeal in respect of this case are in two volumes. I have diligently scrutinised the said two volumes and I cannot but say that the only Originating Application contained therein is the Amended Originating Application filed on 13th day of September, 2004 pursuant to the Order of the Honourable Tribunal dated 10th September, 2004. In the process there is a 7th Respondent, namely, Economic & Financial Crimes Commission. The claims of the Applicants against the Respondents as set out in the process in question are:-

“1. A declaration that the 1st, 2nd, 5th and 6th Respondents are liable to make restitution to the investors who suffered losses as a result of the fraudulent sale by the 2nd Respondent acting as agent/servant of the 1st Respondent of the 3,130,469 units of Nestle Plc shares, the subject of this action.

2. A declaration that the Applicants are entitled to indemnity from the 1st, 2nd, 5th and 6th Respondents jointly and severally to the extent of their losses as stated in this application.
3. An ORDER compelling the 1st, 2nd, 5th and 6th Respondents jointly and severally to indemnify the Applicants herein to the extent of their losses as stated in this application.
4. An ORDER directing the 1st, 2nd, 5th and 6th Respondents to jointly and severally restore the investors who suffered losses as a result of the fraudulent sale of the Nestle Plc shares to their original positions before the scam.
5. An ORDER of perpetual injunction restraining the 1st, 2nd, 5th and 6th Respondents whether by themselves, their agents, privies, assigns, successors-in-title or anyone howsoever acting through them from dealing with, withdrawing, transferring, charging, dissipating, or in any way howsoever disposing or removing all money or part thereof standing to their credit in their accounts and other related accounts at Diamond Bank Nig. Ltd., Plot 1261 Adeola Hopewell Street, Victoria Island, Lagos.
6. An Order directing the 7th Respondent to release to the applicants the sum of N338,582,,017.20 (three hundred and thirty-eight million, five hundred and eight-two thousand and seventeen Naira, twenty kobo only) contained in a Diamond Bank Draft Number 00816476 paid over to the 1st and 5th Respondents on the authorization of the 6th Respondent being part of the funds traced by the Applicants on behalf of the investors who lost their investments in the fraudulent transactions in the Nestle Plc shares to be used to restore the affected investors.
7. A declaration that (sic) the sum of N338,582,017.20 (three hundred and thirty-eight million, five hundred and eight-two thousand and seventeen Naira twenty kobo only) contained in a Diamond Bank Draft Number 00816476 paid over to the 7th Respondents (sic) by the 3rd Respondent from the accounts operated by the 1st and 5th Respondents on the authorization of the 6th Respondent being part of the funds being traced by the Applicants on behalf of the investors is part of the proceeds of the 3,130,469 units of Nestle Plc Shares being traced to the accounts of the 1st, 5th and 6th Respondents.”

It is interesting to note that though the Applicants filed a joint amended Originating Application before the lower Tribunal, each of the two Applicants that filed this joint process was represented by different counsel throughout the proceedings and that the reason for this as proffered by the learned counsel for the 1st Applicant (now 1st Respondent) at page 152 of the Records is that the claim of the CSCS was different from that of the 2nd Applicant (now 2nd Respondent). Be that as it may.

The 1st and 6th Respondents filed a Reply dated 6/7/2004 to the amended Originating Application and the Applicants filed what they called ‘Answer’ dated 23/7/2004 to the 1st and 6th Respondents’ Reply, and a further Answer dated 26/8/2004 to the said Reply.

The 2nd Respondent never participated in the case. He was said to have absconded the country at the stage when the Police were investigating the “shares scam”. The 3rd Respondent likewise did not file any pleading in the case. It however filed an affidavit to show that the 6th Respondent’s money in its custody had been paid to the EFCC. The 4th Respondent did not file any pleading and did not call any witness at the hearing. The party however filed a written address after hearing was concluded. Each of the two Applicants called a witness in the proof of its case and tendered exhibits. The 1st and 6th Respondents did not call any witness at the hearing but subpoenaed an official of the UBN Registrars to tender some documents.

The lower Tribunal in its judgment dated 29th of October, 2004 being appealed against, stated the facts of the case to be as follows: that sometime in 2002 it was discovered that some stock broking firms fraudulently introduced some share certificates including 3,130,469 units of Nestle Plc shares into the 1st Applicant’s depository and same were cleared and sold. Upon this discovery, the 1st Applicant alerted the 2nd Applicant who then carried out an in-house inquiry into the incident and at the end of the exercise it was discovered that the 1st Respondent through the 2nd Respondent was responsible for the fraudulent sale of the shares. As soon as the house that initiated and executed the fraud was ascertained, the matter was reported to the police and the police arrested those suspected to be connected with the fraud. The 2nd Respondent however absconded. The case was also reported to the 4th Respondent who invited the 1st Applicant and some others found to be involved in the fraudulent sale of the shares. At the APC, it was further found that the fraud was able to scale through the 1st Applicant’s framework because of collusion from the staff of the said 1st Applicant who fraudulently introduced the shares in question into the CSCS system by entering them into its depository. The APC held amongst others that the chief executive/principal officers of the 1st Applicant neglected/failed to effectively exercise due care and supervision over the activities and staff of the company which facilitated the introduction of the forged certificates into the CSCS system. The APC also held that the CSCS and UBN Registrars being primarily liable, shall jointly restore the affected investors to their original positions before the scam in respect of the Nestle shares. The Applicants by the action which they instituted are seeking to be indemnified by the 1st and 2nd Respondents from the losses incurred in clearing the shares which the 1st Respondent guaranteed their genuineness and undertook to indemnify the Applicants against all liabilities as a result of the transfer and most importantly for the 1st, 5th and 6th Respondents to make restitutions to the investors who have suffered losses as a result of the fraudulent sale of the 3,130,469 units of Nestle Plc shares by the 2nd Respondent acting as agent/servant of the 1st Respondent.

The lower Tribunal having evaluated the evidence before it, and having also given due consideration to the addresses of parties: (i) found the 1st, 2nd, 5th and 6th Respondents liable to make restitution to the investors who suffered losses as a result of the fraudulent sale of the 3,130,469 units of Nestle Plc shares by the 2nd Respondent acting as agent/servant of the 1st Respondent. The lower Tribunal specifically said “As there is no way the instant case would be resolved without alluding to the previous appeal, the 1st Respondent is hereby grouped among the stock broking firm (sic) liable to restore investors in the appeal between CSCS Vs. SEC, Appeal No. IST/APP/01/2003”; (ii) ordered the 1st, 2nd, 5th and 6lh Respondents jointly and severally to restore the investors who suffered losses as a result of the fraudulent sale of Nestle Plc shares to their original positions before the scam in line with the review made by the Apex regulator SEC as directed by this Tribunal in appeal between CSCS Vs. SEC, Appeal No. IST/APP/01/2003; and (iii) directed the 4th Respondent to take into consideration this judgment and include the 1st Respondent in carrying out its (i.e. lower Tribunal) earlier order in CSCS Vs. SEC Appeal No. IST/APP/01/2003 and that in so doing any asset belonging to the 1st, 2nd, 5th and 6th Respondents which had been identified shall be applied in carrying out the order.

The 1st, 5th and 6th Respondents as Appellants being dissatisfied with the judgment of the lower Tribunal lodged a Notice of Appeal dated 15/11/2004 against the same. The Notice of Appeal was filed on the same 15/11/2004. The Notice of Appeal contains nine (9) grounds of appeal. The grounds of appeal shorn of their Particulars read thus: –

“GROUND 1

The decision of the Investment and Securities Tribunal delivered on 29th day of October, 2004 is against the weight of evidence.

GROUND2

The Honourable Tribunal erred in law when it held as follows: –

“The Tribunal takes notice of the inconsistency in the dates and serial number. It is the view of the Tribunal that these are not material to the issue before it. The 1st, 2nd, and 6th Respondents were found to be the mastermind of the whole scheme in the fraudulent transaction in the said Nestle Plc shares. The 1st and 6th Respondents cannot rely on these inconsistencies in Exhibits N, Ni, O and O (sic) to evade liability as they cannot profit from their own malpractice, fraud or wrongful acts.”

which consequently led the Honourable Tribunal to the conclusion that “the 1st and 6th Respondents have benefited from the scam and that this has caused injustice to them”.

GROUND 3

The Honourable Tribunal erred in law when it failed to properly evaluate the evidence before it and wrongly held as follows:-

“This Tribunal believes that the 1st and 6th Respondents should have offered evidence before the this Tribunal that they did not receive payment vide Exhibits ‘N’ and ‘O’ in which case the weight to be attached to those exhibits would have been drastically reduced” and this has caused injustice to the 1stand 6th Respondents.

GROUND 4

The Honourable Tribunal erred in law when it held as follows:-

“It is just, equitable and fair to apply the money standing to the credit of the account of the 5th Respondent to make restitution to the defrauded investors.”

Which finding occasioned a miscarriage of justice to the 1st, 5th and 6lh Respondents.

GROUND 5

The Honourable Tribunal erred in law when it held that: –

“Even if it is shown that the money in the coffers of the 6th Respondent is not the actual proceed of the fraud, the mere fact that the 6th Respondent has been shown to be the 2nd Respondent’s cohort opens him to the warm embrace of equity. His assets including the monies in his coffers should be seized and used to satisfy the defrauded investors… ”

which finding occasioned a miscarriage of justice to the 6th Respondent.

GROUND 6

The Honourable Tribunal erred in law when it held that: –

“As there is no way the instant case would be resolved without alluding to the previous appeal, the 1st Respondent is hereby grouped among the stock broking firms found liable to restore investors in the appeal between: CSCS vs SEC, Appeal No.IST/01/2003”.

GROUND 7

The Honourable Tribunal erred in law when it held as follows: –

“The 1st, 2nd, 5th and 6th Respondents are hereby ordered to jointly and severally restore the investors who suffered losses as a result of the fraudulent sale of Nestle Plc shares to their original positions before the scam in line with the review made by the Apex regulator SEC as directed by this Tribunal in Appeal between CSCS vs SEC, Appeal No. IST/APP/01/2003”.

GROUND 8

The Honourable Tribunal erred in law when it held suo motu that “the 1st Respondent is hereby grouped among the stock broking firm (sic) found liable to restore investors in the appeal between CSCS vs SEC, Appeal No: IST/APP/01/2003,”

GROUND 9

The Tribunal erred in law when it wrongly place (sic) the onus of proof on the Respondents when the Applicants did not discharge the onus of proof placed on them by law.”

In accordance with the Rules of this Court, parties filed and exchanged briefs of argument. The appeal was entertained on 25/2/2005, A.K. Jingi, learned lead counsel for the Appellants in urging this Court to allow the appeal adopted and relied on the Appellants’ brief of argument dated 11/11/2005 filed on the same day, as well as Appellants’ Reply brief dated 13/6/2006 and equally filed on the same day. Dr. J.S. Okpaluba, learned counsel for the 1st and 2nd Respondents in urging this Court to dismiss the appeal adopted and relied on the brief of argument of the said Respondents dated 26/4/2006 and filed on 12/5/2006 but deemed by the order of this Court to have been properly filed and served on 5/6/2006. Both E.M. Assawalam and Kolade Oladokun learned counsel for the 4th and 5th Respondents respectively, disclosed that their clients did not file briefs of argument as they are more or less nominal parties in the appeal and that they were not opposed to the appeal being heard upon the briefs before the Court. The 3rd Respondent though served with the hearing notice of the day’s proceeding by pasting on 15/2/2009 was absent from Court and was also not represented by counsel. Indeed the said 3rd Respondent did not file any brief of argument in the appeal.

The Appellants formulated five (5) Issues for the determination of the appeal from the nine grounds of appeal contained in the Notice of Appeal. It is disclosed in the Appellants’ brief that the first of the Issues is distilled from grounds 1, 4 and 5; the second from grounds 2, 3 and 9; the third from ground 6; the fourth from ground 7; and the fifth from ground 8. The five Issues read thus: –

“1. Whether there was enough evidence led by the Applicants/Respondents at the Tribunal to established (sic) that the Appellants initiated and benefited from the scam to warrant them to make restitution to the defrauded investors.

2. Whether the Tribunal was right to attach the type of weight attached to Exhibits N, N1, O and O1 in spite of the unexplained inconsistencies in them by the Applicants/Respondent (sic) and as a result wrongly placed the burden of proof on the Respondents.
3. Whether it would not have been proper for the Tribunal to dismiss the Originating Application of the Applicants/Respondents when it reached the conclusion that there was no way the case could be resolved without alluding to appeal No: IST/01/2003 while 1st, 5th and 6th Respondents were not parties to the appeal.
4. Whether the Tribunal was right to order the Appellants to restore the investors that were not named and the amount not mentioned throughout the proceedings.
5. Whether it was not a denial of fair hearing to group the 1st Respondent with the other stock broking firms found liable to restore investors in the Appeal between CSCS vs SEC a case different from that of the Applicants and without first calling upon parties to address it on the issue.”

In their brief of argument the 1st and 2nd Respondents aside from arguing that most of the Appellants’ grounds of appeal christened “errors of law” such as grounds 1 – 6 are not, but rather are either grounds of facts or finding of facts, formulated four Issues for the determination of the appeal. The Issues are: –

“1. Whether in the light of the pleadings and evidence before it, the Tribunal was not right to hold the appellants and 3rd respondent liable to make restitution to investors who suffered losses as a result of the fraudulent sale of Nestle Plc shares by the 3rd respondent acting as agent of the 1st appellant’s agent.

2. Whether having regard to the circumstances of the case, the 1st appellant could not be held liable for the fraud of the 3rd respondent acting as its agent/accredited representative in the course of carrying out the business of the company.
3. Whether having regard to the genesis of the case the Tribunal was not right in grouping the 1st appellant among the stock broking firms found to restore the affected investors.
4. Whether under the circumstances of the case the Tribunal was not right to trace the money to the 1st, 2nd and 3rd appellants and the 3rd respondent.”

As earlier said, the 1st and 2nd Respondents (who will hereafter be simply referred to as “the Respondents) argued in their brief of argument to the effect that the grounds of appeal which the Appellants christened as “errors of law” namely grounds 1 – 6 are not grounds of law but are either grounds of fact or findings of facts. Referring to Section 243 of the Investment and Securities Act, No. 45 of 1999 (hereinafter simply called “ISA”) the Respondents said that the Appellants are entitled to appeal on points of law only. In the premises, the Respondents submitted that “the appellants’ chances are left with grounds 7 – 9. The cases of Nwadike v. Ibekwe (1987) 4 NWLR (pt 67) 718; Ogbechie v. Onochie (1986) 2 NWLR (pt. 23) 484; UBN Ltd v. Umeh & Sons Ltd (1996) 1 NWLR (pt. 426) 565; and Sosanya v. Onadeko (2005) 8 NWLR (pt. 926) 185) were cited in aid. The Respondents further cited cases in respect of the principle that an appellate court will not normally interfere with or disturb the findings of facts of a trial court unless the findings are shown to have breached any known rule of law or procedure or the same amounted to a miscarriage of justice or that they are perverse.

The cases cited include Oki v. Oki (2002) 13 NWLR (pt. 183) 89 at 93; Ogbero Egiri v. Ededho Upari (1974) NLR 22; Woluchem v. Gudi (1981) 5 SC 291; and Oge v. Ede (1995) 3 NWLR (Pt.385) 564. The Respondents rounded up by submitting that grounds 1 – 6 of the grounds of appeal are incompetent and are of no consequence to the appeal as the Appellants can appeal “on points of law only”.

Responding to the challenge to the competence of grounds 1 – 6 of their grounds of appeal in their Reply brief, the Appellants said that the cases of Nwadike v. Ibekwe; Ogbechie v. Onochie; UBN Ltd v. Umeh & Sons ltd; and Sosanya v. Onadeko (all supra) relied upon by the Respondents were not applicable to the situation in the instant appeal, as right of appeal was not denied the appellants therein, but that the said appellants only needed to apply for the leave of court to exercise that right. The Appellants submitted that the ISA did not provide for appeal with the leave of the lower Tribunal or that of the Court of Appeal where an aggrieved party wished to challenge the findings of the lower Tribunal. The Appellants further stated thus: “That Act out rightly denied any aggrieve (sic) party right of appeal in respect of the Tribunal’s finding of facts”.

It was however the submission of the Appellants in the main that their right of appeal to challenge the findings of fact of the lower Tribunal is a constitutional one preserved by Section 36(2) of the 1999 Constitution and that a law can only be valid if it gives the person affected by the decision of any authority a right of appeal. Given their stance, the Appellants equally submitted that their right of appeal against the findings of facts of the lower Tribunal “is not at the mercy” of the ISA since it is subordinate to the Constitution and cited the case of Ogunwale v. Syrian Arab Republic (2002) 9 NWLR (pt. 771) 127 at 143- 144 & 147 in aid. Having initially submitted to the effect that a right vested or conferred by the Constitution cannot be taken away or interfered with by any other legislation or statutory provision save the Constitution itself, the Appellants further submitted that no other law can therefore prevent them from raising the complaints in grounds 1 – 6 of the grounds of appeal and that any law that did this would be denying them of their right to fair hearing. The ISA which came into force on 26th May, 1999, the Appellants submitted, was an existing law by virtue of Section 315(1) of the Constitution and must be declared null and void if not modified to conform with the said Constitution. The Constitution, the Appellants said, is supreme, taking precedence over all other laws and that any law which is inconsistent with it, is null and void to the extent of the inconsistency. The Appellants in support of the various submissions highlighted above, cited the cases of Tukur v. Government of Gongola State (1989) 4 NWLR (pt. 117); Oloba v. Akereja (1988) 3 NWLR (pt. 84) 508); Adisa v. Oyinwola (2000) 10 NWLR (pt. 674) 116 at 191; Akulega v. B.S.C.S.C (2001) 12 NWLR (pt. 728) 524 at 580; and Yogun v. Oputa (No.2) (2001) 16 NWLR (pt. 740) 597 at 667 – 668.

It is clear from the submissions of the Respondents highlighted above, that the challenge to the competence of grounds 1 – 6 of the Appellants’ grounds of appeal is predicated on Section 243 of the ISA, No. 45 of 1999, I therefore consider it appropriate to set out the provisions of Section 243 (1) and (2) which are relevant.

Section 243 (1) provides: –

“Any person dissatisfied with a decision of the Tribunal constituted under this Decree may appeal against such decision on points of law to the Court of Appeal upon giving notice in writing to the Secretary to the Tribunal within thirty days after the date on which such decision was given;

Section 243 (2): –

“A notice of appeal filed pursuant to subsection (1) of this section shall clear (sic) all the grounds of law on which the appellant’s case is based,”

In the face of the provisions of Section 243 set out above, the Appellants who clearly conceded in their Reply brief that the ISA outrightly denied any aggrieved party the right of appeal in respect of the lower Tribunal’s findings of fact, however argued that they have the right of appeal against the findings of fact made by the lower Tribunal by virtue of the provisions of the 1999 Constitution. In this regard the Appellants relied especially on the provisions of Section 36 (2) of the said Constitution.

I do not see how it can be argued by any stretch of imagination that the ISA has contravened the provisions of Section 36 of the 1999 Constitution inasmuch as there is no provision of the said Act that portends the determination by the lower Tribunal of matters brought before it to be final and conclusive. The provisions of Section 243 of the ISA hereinbefore set out glaringly show that any party aggrieved by the decision of the lower Tribunal has a right of appeal to this Court, Indeed Section 245 of the ISA confers a right of further appeal to the Supreme Court by either party or Commission against the decision of this Court.

How then can it be said that the provisions of the ISA relating to appeals have in any way contravened those of Section 36 of the 1999 Constitution?

Right of appeal in this country is basically statutory, in that it is conferred on parties by the Constitution and/or some other applicable statutes. There is nothing like inherent right of appeal. See EKULO FARMS LIMITED & ANOR V. UNION BANK OF NIGERIA PLC (2006) All FWLR (pt. 319) 895 at 914 – 915 (SC); ELDER ANIETTE UKO & ANOR V. MR. OKON EKPENYONG (2006) All FWLR (Pt. 324) 1927 at 1943 (CA); and SAMUEL SOGBESAN V. MR. ADEBOWALE OGUNBIYI & ORS [2005] All FWLR (pt. 284) 337 at 348 (CA). Right of appeal being statutory, the statute that creates the right of appeal therefore invariably sets out the situations when the right of appeal so created becomes exercisable. The Constitution in Section 241 provides for the situations in which parties can appeal as of right to the Court of Appeal against the decisions of the Federal High Court or a High Court. Section 242 of the same Constitution also makes it clear that any right of appeal against the decision of the Federal High Court or High Court, that is not exercisable under any of the situations provided for in Section 241, can only be exercised with the leave of the Federal High Court or High Court or Court of Appeal. Lastly, Section 246 of the 1999 Constitution vests the National Assembly with the power to confer jurisdiction upon the Court of Appeal to hear and determine appeals from any decision of any other court of law or tribunal established by the National Assembly. The ISA No. 45 of 1999 which came into force on 26th May, 1999 being undoubtedly in respect of matters which the National Assembly is empowered by the 1999 Constitution to make laws clearly became an existing law deemed to be an Act of the said National Assembly – pursuant to Section 315 of the Constitution. It would therefore appear clear that the right of appeal on “points of law” only conferred on any person aggrieved with the decision of the lower Tribunal by Section 243 of the ISA, flows from Section 246(2) of the 1999 Constitution. Section 243 of the ISA has conferred a right of appeal on any person aggrieved with the decision of the lower Tribunal to this Court on “points of law only”. I do not see how the provision in this regard violates the provision of Section 36 of the Constitution as the Appellants would appear to have argued in their Reply brief. I also do not see how the provision of Section 243 of the ISA limiting the right of appeal conferred on any aggrieved party contravenes any other provision of the Constitution.

In conclusion on this, I find the submissions of the Appellants to the effect that they can properly appeal against findings of fact made by the lower Tribunal pursuant to the provisions of the 1999 Constitution when Section 243 of the ISA which conferred whatever right of appeal they have, restricted the exercise of that right to points of law only, to be totally misconceived and outrightly at variance with the relevant provisions of the statute by virtue of which they are exercising their right of appeal.

In their Reply brief, the Appellants did not expressly concede or controvert the assertion of the Respondents that grounds 1 – 6 of their grounds of appeal are “not grounds of law but are either grounds of fact or findings of facts”. Indeed given the off hand manner in which the Appellants treated the challenge to the grounds of appeal in question and particularly the resort made to Section 36 of the Constitution as conferring them with the right of appeal against the findings of fact made by the lower Tribunal, one would be tempted to conclude that the Appellants do not dispute the fact that the grounds of appeal in question are indeed not on points of law. However, I do not think it would be appropriate to simply hold on to the submissions of the Respondents that the grounds of appeal in question are actually not on points of law.

This is because the Appellate Courts have consistently held that it is not what it pleases an appellant to label or name his ground of appeal that makes it so. It therefore can equally be said that the grounds of appeal in question do not necessarily have to wear the garb given to them by the Respondents. Accordingly, I believe that it is still incumbent on me to consider the grounds of appeal in question and come to a decision as to whether they are on points of law or on what the Respondents have called “grounds of fact or findings of fact”.

The law reports are replete with decisions of the Supreme Court and those of this Court setting out the guiding principles in determining when a ground of appeal is on questions or points of law, mixed law and facts or facts. In this regard see the case of CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY & 2 ORS V. BASSEY EBONG EKPO-(2008) All FWLR (Pt. 418) 198 at 235-236 where the Supreme Court per Muhammad, JSC; set out the guiding principles as: –

“1. Thorough examination of the grounds of appeal in the case concerned to see whether they reveal a misunderstanding by the lower court of the law or a misapplication of the law to facts already proved or admitted.

2. Where a ground of appeal complains of a misunderstanding by the lower court of the law or a misapplication of the law to facts already proved or admitted, it is a ground of law.
3. Where a ground of appeal questions the evaluation of facts before the application of the law, it is a ground of mixed law and fact.
4. A ground which raises a question of pure fact is certainly a ground of fact.
5. Where the lower court finds that particular events occurred although there is no admissible evidence before the court that the event did in fact occur, the ground is that of law.
6. Where admissible evidence has been led, the assessment of that evidence is entirely for that court. If there is a complaint about the assessment of admissible evidence, the ground is that of fact.
7. Where the lower court approached the construction of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, the ground is that of law.
8. Where the lower court or tribunal applying the law to facts in a process which requires skill of a trained lawyer. This is a question of law.
9. Where the lower court reaches a conclusion which cannot reasonably be drawn from the facts as found, the appeal court will assume that there has been a misconception of the law. This is a ground of law.
10. Where the conclusion of the lower court is one of possible resolutions but one which the appeal court would not have reached if seised of the issue, that conclusion is not an error in law.
11. Where a trial court fails to apply the facts which it has found correctly to the circumstances of the case before it and there is an appeal to a court of appeal which alleges misdirection in the exercise of the application by the trial court, the ground of appeal alleging misdirection is a ground of law not of fact.
12. When the court of appeal finds such application to be wrong and decides to make its own findings such findings made by the court of appeal are issues of fact not law.
13. Where the appeal court interferes in such a case and there is a further appeal to a higher court of appeal on the application of the facts, the grounds of appeal alleging such misdirection by the lower court of appeal is a ground of law not of fact.
14. A ground of appeal which complains that the decision of the trial court is against evidence or the weight or contains unresolved contradictions in the evidence of witnesses, is purely a ground of fact.”

See also the cases of MRS. MATILDA ADERONKE DAIRO V. UNION BANK OF NIGERIA PLC & ANQR. (2007) All FWLR (Pt. 392) 1846 at 1873-1876 (SC): BOARD OF CUSTOM AND EXCISE V. BARAU (1982) 10 SC 48; OGBECHI V. ONOCHIE (1986) 2 NWLR (Pt. 23) 484 (SC); and FIRST FUELS LIMITED V. NIGERIAN NATIONAL PETROLEUM CORPORATION & PIPELINE AND PRODUCTS MARKETING COMPANY LIMITED (2008) All FWLR (Pt. 429) 514 (CA).

I have before now, set out the grounds of appeal contained in the Appellants’ Notice of Appeal. I will now proceed to determine the status of each of the grounds of appeal being challenged by the Respondents bearing in mind the principles reproduced hereinbefore.

The complaint in Ground 1 is that the decision of the lower Tribunal is against the weight of evidence. This complaint herein has to do with evidence led and the evaluation thereof by the lower Tribunal. This ground of appeal is undoubtedly one of fact and not of law. The complaint in Ground 2 is basically against the non-resolution of perceived inconsistencies in some Exhibits by the lower Tribunal before it relied on the same. The Appellants by this ground are basically complaining about the improper assessment of documentary evidence. The Appellants are not questioning the admissibility of the Exhibits. This ground of appeal is one of fact. The complaint of the Appellant in Ground 3 equally centres on the proper evaluation of documentary evidence. The admissibility of the Exhibits is not in issue. The ground is one of fact. The complaint in Ground 4 throws up the issue as to whether or not there is any admissible evidence before the lower Tribunal to sustain the finding that the money standing to the credit of the 5th Appellant should be applied to make restitution to defrauded investors. The ground is one of law inasmuch as it is predicated on the absence of admissible evidence to sustain the position taken by the lower Tribunal. Each of Grounds 5 and 6 are equally grounds of law inasmuch as the complaint therein is to the effect that the position taken by the lower Tribunal is not sustainable given the absence of admissible evidence in support of the same.

In conclusion, I therefore find only Grounds 1, 2 and 3 of the grounds of appeal not to be grounds of law. Grounds 4, 5 and 6 are found to be grounds of law. Grounds 1, 2 and 3 of the grounds of appeal are accordingly struck out for being incompetent.

As already stated, the Appellants disclosed in their brief of argument, that the first of the Issues formulated by them for the determination of the appeal is distilled from grounds 1, 4, and 5; the second from grounds 2, 3 and 9; the third from ground 6; the fourth from ground 7; and the fifth from ground 8. I have already found grounds 1, 2, and 3 of the grounds of appeal not to be grounds of law and have accordingly struck them out as being incompetent. It therefore follows that the Issues for determination as set out under Issues 1 and 2 to the extent that they respectively encompass issues that do not relate to points of law solely, are equally incompetent as to countenance them would amount to surreptitiously allowing an appeal on grounds of appeal relating to facts. Accordingly, Issues 1 and 2 formulated by the Appellants are discountenanced as well. I now proceed to determine the appeal on the surviving Appellants’ Issues for determination, namely Issues 3, 4 and 5.

APPELLANTS’ ISSUE 3

WHETHER IT WOULD NOT HAVE BEEN PROPER FOR THE TRIBUNAL TO DISMISS THE ORIGINATING APPLICATION OF THE APPLICANTS/RESPONDENTS WHEN IT REACHED THE CONCLUSION THAT THERE WAS NO WAY THE CASE COULD BE RESOLVED WITHOUT ALLUDING TO APPEAL NO. IST/01/2003 (SIC) WHILE THE APPELLANTS WERE NOT PARTIES TO THE APPEAL.

The Appellants submitted in the main on this Issue that the lower Tribunal ought to have dismissed the Originating Application before it, when it came to the conclusion that there was no way the instant case could be resolved without alluding to Appeal No: IST/APP/01/2003. This was more so as they (i.e. Appellants) were not party to the appeal. The Appellants made the point to the effect that the lower Tribunal was exercising its original jurisdiction in the instant case and that the Applicants (now Respondents) had to prove their claims to entitle them to judgment. The claims of the Respondents were said to be for indemnity and restitution to the investors that suffered losses as a result of the fraudulent sale of 3,139,469 (sic) units of Nestle Plc shares.

The Appellants submitted that the instant case instituted by the Respondents was necessitated by the judgment of the Administrative Proceedings Committee (APC)which found the Respondents liable. That the Respondents, relying on the indemnity clauses signed on behalf of the 1st Appellant by the 2nd Respondent – Mr. Lawrence Okwufuleze, came before the lower Tribunal to claim indemnity and that the claim was not successful. The failure of the claim for indemnity, the Appellants submitted, has by implication dismissed the Respondents’ claims Nos. 2 and 3.

It was also submitted by the Appellants to the effect that the conclusion of the lower Tribunal “that there was no way the instant case could be resolved without alluding to Appeal No. IST/APP/01/2003” showed that the Respondents did not prove their other claims. The Appellants submitted that the decision of the lower Tribunal grouping the 1st Appellant among the stock broking firms found liable to restore investors in Appeal No: IST/APP/01/2003 was tantamount to the enforcement of the judgment in the said appeal against them. This, the Appellants said, is against the time honoured position of the law that only parties to a judgment are bound by it and the case of Maya v. Oshuntokun (2001) 11 NWLR (Pt. 723) 62 at 81 was cited in aid. The Appellants stated the corollary of the above position to be that “once someone is not a party or privy the judgment of that court in the matter in question is not binding on him”.

The Respondents would appear to have treated this Issue under their own Issue 3 which reads thus: “Whether having regard to the genesis of the case, the Tribunal was not right in grouping the 1st appellant among the stock broking firms to restore the affected investors”.

It was submitted by the Respondents that the decision of the lower Tribunal to group the 1st Appellant among the stock broking firms found liable to restore affected investors was necessitated by equity and fairness. The Respondents disclosed the equity and fairness that necessitated the decision, to be the thinking of the lower Tribunal that the others that were involved would be unhappy if their mentor, the 1st Appellant – the author and perpetrator of the fraud – is left off the hook and also that it would equally be unfair if the 1st Appellant were adjudged to bear the brunt alone. The APC of the Securities and Exchange Commission, it is said is not a Tribunal and has neither vestiges nor power of a court or Tribunal. It was submitted that the fact that the APC did not find the 1st Appellant liable and the fact that the said 1st Appellant was not a party to the appeal from the APC to the lower Tribunal did not estop the said Tribunal from exercising its original jurisdiction under Section 234 of ISA 1999. It was submitted that there was overwhelming documentary evidence before the lower Tribunal that nailed the 1st Appellant as having masterminded the fraud through the 3rd Respondent but has done everything possible to pass the “bulk” (sic: buck) to the 3rd Respondent who was its agent/accredited representative. The Respondents submitted that equity will not allow the law to be employed and used as an engine of fraud and further observed that the lower Tribunal is a court of law and equity as regards the subject matter of the instant case. The Appellants, the Respondents also said, are no more than the 3rd Appellant and have been taking shield under the technicalities of the law to get away, and that this was to the detriment of the investors stripped of their shares. In the view of the Respondents, the Appellants are therefore not entitled to seek any redress. This is because, no one involved in any form of immoral or illegal act or transaction shall be allowed to seek redress. Also one cannot have a right of action when one comes to the court of justice with soiled or unclean hands. The case of Seriki v. Are (1999) 3 NWLR (pt. 595) 469 where this Court applied the dictum of Wiggery, LJ., in Buswell v. Godwin (1971) 1 All ER 418 at 421 was cited in aid. The Respondents urged this Court to give effect to the salutary proposition that a man shall not be allowed to take advantage of his wrong doing. Though stating that there could be sub-issues which might arise for consideration thereunder, the two main issues which the lower Tribunal set out for the satisfactory determination of the instant case at page 211 of the Records are: –

“1. Whether or not the 1st, 2nd, 5th and 6th Respondents are liable to make restitution to the investors who suffered losses as a result of the fraudulent sale of the 3,130,469 units of Nestle Plc shares by the 2nd Respondent as an agent of the 1st Respondent of which the 6th Respondent is an alter ego.

2. Whether or not the 1st Applicant is entitled to be indemnified by the 1st, 2nd, 5th and 6th Respondents jointly and severally for losses supposedly incurred by it.”

The lower Tribunal after dwelling on the evidence before it and making series of findings in respect of the many sub-issues it threw up, held thus, in relation to the first of the two main issues it formulated for itself: –

“The 1st, 2nd, 5th and 6th Respondents are liable to make restitution to the investors who suffered losses as a result of the fraudulent sale of the 3,130,469 units of Nestle shares (the subject matter of this action) by the 2nd Respondent acting as agent/servant of the 1st Respondent. As there is no way the instant case would be resolved without alluding to the previous appeal, the 1st Respondent is hereby grouped among the stockbroking firm (Sic) found liable to restore investors in the appeal between CSCS vs. SEC, Appeal No. IST/APP/01/2003.”

APPEAL NO. 1ST/APP/01/2DD3 – CSCS V. SEC as can be gathered from the Records is the appeal lodged against the decision of the Administrative Proceedings Committee (APC) of the SEC in CASE NO: APC/21/2002. The parties in the case are SECURITIES AND EXCHANGE COMMISSION V. (1) BONKOLANS INVESTMENT LIMITED and (2) CENTRAL SECURITIES CLEARING SYSTEM LTD (CSCS) & OTHERS. The decision of the APC in the case was communicated to the 1st Respondent in the instant appeal by a letter dated 30th January, 2003. The letter is at pages 12-19 of the Records. This letter is one of the numerous documents attached to the Originating Application by which the instant case was commenced before the lower Tribunal. Facts relating to what transpired before the APC were pleaded under the portion of the Amended Originating Application titled “THE FACTS GIVING RISE TO THE APPLICANTS’ CLAIMS AND THIS APPLICATION”. The letter dated 30th January, 2002 informing the 1st Respondent of the decision of the APC was duly tendered before the lower Tribunal and admitted as Exhibit ‘C’. The Exhibit clearly shows that though the 1st Appellant was a party in the proceedings before the APC, the said 1st Appellant was not indicted in anyway and particularly was not found liable in any degree to restore affected investors in respect of the Nestle Plc shares (the subject matter of the instant case) to their original positions. Also, it is to be

appreciated that while the liability of the CSCS (now 1st Respondent in the instant appeal) in the proceedings before the APC was predicated upon the acts of commission and/or omission committed by some of its staff whose names were duly set out in Exhibit ‘C’, the 1st Appellant was not found wanting despite the banning of the 3rd Respondent – Lawrence Okwufulueze (agent/servant of the 1st Appellant) from engaging in the capital market given the findings as to his role in the shares scam.

The Appellants have argued that this case came to be as a result of the decision of the APC that found the Respondents liable and are therefore seeking to claim indemnity. It would appear incontrovertible from the facts of this case and particularly from Exhibit “C” that the 1st Respondent was found liable by the APC. I however do not see anything in Exhibit “C” that suggests that the 2nd Respondent – The Nigerian Stock Exchange was found liable in any regard. In its judgment the lower Tribunal, while dwelling on the first of the two issues it formulated for itself, at times portrayed itself as considering the facts and evidence adduced in the instant case only; and at some other times revealed that it heavily relied on its decision/judgment in APPEAL NO: ISA/APP/01/2003. In this regard I cannot but quote verbatim some portions of the judgment of the lower Tribunal that reveals the Tribunal as “migrating” from the evidence facts of the instant case into the circumstances in APPEALNO: IST/APP/01/2003 and that it allowed or predicated its findings in the instant case in some material particular on the circumstances in the said APPEALNO: IST/APP/01/2003. I will start by quoting from page 223 of the Records where the lower Tribunal stated thus: –

“Another corollary issue yet from the first main issue in this judgment is whether or not it would amount to double compensation to the investors to ask the 1st, 5th and 6th Respondents to restore the investors. This issue will be discussed alongside the judgment of this Tribunal in the appeal between CSC vs. SEC, IST/APP/01/2003. This will also be discussed along with the Applicants’ claims 1 and 4 i.e.:

(1) xxxxxxxxxxxxxxxxxxxxxxxxxxx

(4) xxxxxxxxxxxxxxxxxxxxxxxxxxxx

We do not think asking the Respondents to restore in this case would amount to double compensation. In the above mentioned appeal between CSC Vs. SEC the Tribunal held in the judgment and for ease of reference we will quote at length the position of the Tribunal in the appeal”.

The lower Tribunal having quoted at pages 224-226 of the Records its position in the appeal further stated thus: –

“The Tribunal is of the view that the judgment in the appeal was wide enough to accommodate the 1st and 4h claims of the Applicants. The Tribunal in the judgment directed that SEC should liaise with or request the assistance of EFCC or the Inspector General of Police to locate and produce Mr. Lawrence Okwufulueze and his cohorts in order to trace and seize assets belonging to him as SEC found that he was the mastermind of the fraud. Such assets should be disposed of and the proceeds used to pay damages/compensation to the defrauded investors and or any other party who has paid compensation and is entitled to contribution. The Tribunal also held that Mr. Lawrence Okwufulueze must be made to disgorge the huge sums gained from the scam.

Even if it is shown that the money in the coffers of the 6th Respondent is not the actual proceeds of the fraud, the mere fact that the 6th Respondent has been shown to be the 2nd Respondent’s cohort opens him to the warm embrace of equity.

His assets including the monies in his coffers should be seized and used to satisfy defrauded investors. It is only then that the integrity of the market will be kept intact.

In the appeal judgment, SEC was mandated to work out percentage of Nestle Shares Plc (sic) to be apportioned to each party involved in the scam and also work out the restitution orders so that the restitution shall be jointly and severally made by ALL stock broking firms, operators and others found liable. The 1st Respondent is hereby found liable by this Tribunal to make restitution alongside other stockbrokers in the spirit of that judgment. ”

It would appear glaring from the portions of the judgment now on appeal hereinbefore re-produced above, that what the lower Tribunal engaged in was not the application in the instant case as a precedent of any principle of law enunciated in APPEAL NO: IST/APP/01/2003 which it felt bound to follow. The lower Tribunal glaringly engaged in the juxtaposing of the facts and circumstances of the instant case with those in APPEAL NO: 1ST/APP/01/2003 in order to find the 1st Appellant liable in respect of Applicants’ claims 1 and 4 with a view to ensuring that the outcome of the instant case was not parallel to or divergent with that in APPEAL NO: 1ST/APP/01/2003. The statement of the lower Tribunal that

” ….. As there is no way the instant case would be resolved without alluding to the previous appeal, the 1st Respondent is hereby grouped among the stockbroking firm (sic) found liable to restore investors in the appeal between CSCS Vs. SEC, Appeal No. IST/APP/01/2003″;

eloquently and irresistibly bears this out.

The inability of the lower Tribunal to resolve the instant case without alluding to the judgment in APPEAL NO: IST/APP/01/2003 from the facts of the instant case would appear to have been caused by the Respondents themselves. In this regard, it would appear incontrovertible from the facts of this case that for the Respondents, who were Applicants before the lower Tribunal, to succeed at that level against the Appellants, they had to prove the primary liability of the 1st Appellant. The 1st Respondent and Union Registrars jointly and severally it should be noted, had at all material times before the institution of the instant case been primarily found liable by the APC to restore affected investors to their original positions before the scam, in respect of the Nestle Plc shares (the subject matter of the instant action). As earlier stated in this judgment there is nothing in Exhibit ‘C’ showing that the 2nd Respondent herein was found liable in respect of any matter. It would appear that the lower Tribunal appreciated this much when at pages 234- 235 of the Records it stated thus: –

”The same cannot be said of the 2nd Applicant whose staff was not part of the fraud. Exhibit R certainly offers the 2nd Applicant an entitlement to indemnity. The clause therein states that the indemnity is jointly and separately. The 2nd Applicant can claim an indemnity in all proceedings, claim, expenses and liability whatsoever arising from the transaction, the subject matter of this case.

The 2nd Applicant however did not make any case of incurring loss in the transaction. Assuming without conceding that the 2nd Applicant incurred loss, the particulars of the loss is not before this Tribunal. The Tribunal cannot therefore speculate on this. We therefore hold that the indemnity cannot still apply to the 2nd Applicant.”

As already stated the facts of the instant case, show that the 1st Respondent together with the Union Registrars had earlier been adjudged to restore investors in respect of Nestle Plc shares (the subject matter of the instant action) to their original positions before the scam.

This was before the Respondents came before the lower Tribunal in a separate or distinct case not seeking for a declaration that the 1st Respondent (who is alleged to have acted through the 3rd Respondent) is primarily liable to make restitution to investors who suffered losses as a result of the fraudulent sale of Nestle Plc shares in conjunction with the 1st Respondent and Union Registrars, but for a declaration purporting to make the Appellants solely primarily liable for the same thing the 1st Respondent and Union Registrars already stood liable. In my view, it is because the lower Tribunal could not see its way through granting claims 1 and 4 of the Applicants (which if granted would have caused obvious confusion as to those to now restore investors who suffered losses to their original positions) that the said Tribunal resorted to juxtaposing the circumstances of the instant case with those in APPEAL NO: IST/APP/01/2003 and ended up finding the Appellants liable to make restitution by grouping the 1st Appellant as being among the stock broking firms found liable to restore investors in APPEAL NO: IST/APP/01/2003 as by the lower Tribunal’s showing it knew that the instant case could not be resolved save it did this.

I am aware that the Respondents have argued that the finding of the lower Tribunal in this regard was necessitated by equity and justice. At the same time the Respondents argued that there was overwhelming documentary evidence that nailed the 1st Respondent. May I say that if there was overwhelming documentary evidence nailing the 1st Appellant as submitted by the Respondents, then the lower Tribunal ought not to have had any difficulty in resolving the instant case on the basis of such evidence. In other words the lower Tribunal by its own showing, that the instant case could not be resolved save it alludes or refers to APPEAL NO: IST/APP/01/2003, in which the Appellants were not parties, has clearly portrayed the converse of the Respondents’ submission as to the existence of overwhelming evidence that nailed the 1st Appellant.

The lower Tribunal should not have glaringly shown itself as not being in a position to resolve the instant case except it took into consideration its decision/finding in APPEAL NO: IST/APP/01/2003 and to have gone ahead to incorporate the liability of the 1st Appellant into the judgment in the said appeal as if the appeal and the instant case were one and the same case. The lower Tribunal in my respectful view was not engaged in resolving the instant case upon its peculiar facts and evidence adduced before it but simply set out to implement its earlier decision in APPEAL NO: IST/APP/01/2003 in the instant case. I know of no equitable principle that permits a Tribunal or any adjudicating body for that matter to import into the proceedings before it, the findings it has made in some other matter it may have decided previously no matter how germane they are to the matter it is actually handling at a point in time.

This is particularly so when the two cases are not between the same parties. It is settled law, that a case has to be decided upon its own peculiar facts as unfolded by the evidence presented by the parties. See C.S.S. BOOKSHOP LTD V. THE REGISTERED TRUSTEES OF MUSLIM COMMUNITY IN RIVERS STATE & 3 ORS (2006) All FWLR(pt. 319) 819. The situation in the instant case becomes more compounded when it is appreciated that not only was the judgment in APPEAL NO: IST/APP/01/2003 not in issue, but also the judgment was not placed before the lower Tribunal as an Exhibit. Therefore what the Tribunal ought to have done having seen that it could not resolve the instant case without alluding to its judgment in APPEAL NO: IST/APP/01/2003 was to have refused Respondents’ Claims 1 and 4 and not to have grouped the 1st Appellant as being among the stock broking firms found liable to restore investors in the said Appeal for the purpose of sustaining the Respondents’ claims in question. I do not see how any equitable doctrine can properly be invoked to justify the decision of the lower Tribunal finding the 1st Appellant liable (and which liability formed the basis of the liability of the other Appellants) having stated by itself and clearly too that the instant case cannot be resolved save it resorts to its finding in a separate case.

In conclusion, this Issue i.e, Issue 3 is resolved in favour of the Appellants.

APPELLANTS’ ISSUES 4 AND 5

Appellants’ ISSUES 4 AND 5 were argued together in their brief of argument. Issue 4 questions the correctness of the decision of the lower Tribunal ordering them (i.e. Appellants) to restore investors who were not named and in the sum not mentioned throughout the proceedings. Issue 5 on the other hand complains of the denial of fair hearing as it relates to the order of the lower Tribunal grouping the 1st Appellant with the other stock broking firms liable to restore investors in the Appeal between CSCS v. SEC given the fact that the order was made suo motu by the said Tribunal and which never called upon parties to address it on the issue.

It was submitted by the Appellants that grouping the 1st Appellant with the other stock broking firms found liable to restore investors was fundamental to the judgment as it is obvious therefrom that unless the 1st Appellant was so grouped, it would have been impossible to ask the 1st Appellant to restore any investor. The Appellants submitted that the lower Tribunal was wrong to have raised the issue that the 1st Appellant be grouped with the other stock broking firms found liable to restore investors suo motu without giving parties an opportunity of being heard and that this has occasioned a miscarriage of justice since it was an issue upon which the judgment in the instant case rests substantially. The cases of Governor of Gongola State v. Tukur (1989) 4 NWLR (Pt.117) 592; Adegoke v, Adibi (1992) 5 NWLR (Pt. 224) 400; and Oyekanrni v. NEPA (2000) 15 NWLR (Pt. 690) 414 at 439 amongst other were cited in aid.

The Appellants also submitted that the issue of grouping the 1st Appellant with other stock broking firms found liable and ordered to restore investors by the lower Tribunal in the appeal between CSC v. SEC is distinct and different from the issue raised by the Respondents in their Originating Application. That the Tribunal sprung a surprise on the Appellants by raising the issue in its judgment delivered on 19/10/2004.

The Appellants submitted that the decision of the lower Tribunal cannot stand and in this regard referred to the position of the law that courts are under a duty not to deviate from the case made by the parties and that when a court commits a blunder in this regard and thereby reaches a decision different from that asked for by the parties as in the instant case, such a decision cannot be allowed to stand. The cases of Okpala vs. Dereke-Solar (1986) 4 SC 141 and NDIC v. Aranu (2001) 18 NWLR (Pt. 744) 183 at 208, amongst others, were cited in aid.

The Appellants also submitted in the main that the denial of opportunity to parties by the lower Tribunal to address it on the issue it raised suo motu robbed them of the opportunity to raise the issue of the incapability of the SEC to determine the extent of their involvement because the said SEC had consistently been on the side of the Respondents throughout the proceedings to the extent that it even contemplated becoming an applicant at a stage of the proceedings. May I say right away that the argument of denial of fair hearing along this line is not borne out from ground 8 of the grounds of appeal and the particulars thereof. The complaint in ground 8 is limited to the grouping of the 1stAppellant among the stock braking firms found liable to restore investors in the appeal.

The Appellants also submitted that there was no iota of evidence before the lower Tribunal as to anybody or group of persons that lost a single kobo as a result of the shares scam and that the lower Tribunal itself never mentioned a single person alleged to have lost anything, The point was made that even Chief (Dr.) Sunday Dankaro, the holder of the shares certificate, never lost anything as a result of the scam and reference was made to Exhibit ‘T’ in this regard. The Appellants while noting that the lower Tribunal in its judgment consistently uttered the phrase “to restore the investors” raised the poser as who was to benefit from the judgment of the Tribunal if the investors and extent of their losses are not known. In the premises, the Appellants submitted to the effect that the decision of the lower Tribunal did not qualify as a judgment and cited the case of Ayanyade v. O.A.U.T.H.M.B (2001) 7 NWLR (pt. 711) 187 in aid.

The Issues under consideration would appear to have been treated by the Respondents under their Issue 4. The submissions of the Respondents under the said Issue have earlier been highlighted in this judgment. It is however worthy to now note that the Respondents under their Issue 4 submitted that it is a misconception by the Appellants to say that nobody was mentioned by the lower Tribunal as having lost a kobo in the shares scam. Exhibit ‘T’ according to the Respondents clearly shows that Chief (Dr.) Sunday Dankaro sustained loss as a result of the scam. The Tribunal according to the Respondents, has also given the SEC, the apex supervisory body, the responsibility to organise the restitution and that the said SEC knows that Chief Dr. Sunday Dankaro is affected as well as all those that bought the shares. The shares the Respondents further said were distributed through known stock broking firms and these firms know the investors affected. In the premises the Respondents submitted that the arguments of the Appellants were not strong enough to exonerate them from their liability to make restitution.

It is not in doubt having regard to the Records in the instant case, that it was In the judgment of the lower Tribunal that the findings of the said Tribunal in APPEAL NO: IST/APP/01/2003 sprang up for the first time for consideration and the judgment in the said appeal incorporated into the judgment in the instant case or vice versa. The lower Tribunal definitely did not afford the parties any hearing, before it resorted to Its findings in the judgment in the appeal and started applying the findings in same to the instant case. The law is settled that when a court raises a matter germane to the resolution of the case before it suo motu, it is incumbent that parties be given an opportunity of making their comments on it. To do otherwise will be to deny the parties the opportunity of being heard and lead to a miscarriage of justice. See BHOJSONS PLC V. GEOFFERY K. DANIEL-KALIO (2006) All FWLR (Pt. 312) 2038. I am of the respectful view that the portion of the lower Tribunal’s judgment at page 226 of the Records sufficiently shows that the said Tribunal in arriving at its decision as to the liability of the Appellants in the instant case was at least substantially, if not wholly, influenced and/or relied on the conception that its judgment in APPEAL NO: IST/APP/01/2003 was wide enough to accommodate the Respondents’ claims 1 and 4. It was incumbent on the lower Tribunal at the point it conceived this, to have afforded the parties in the instant case an opportunity to comment on this view. This the lower Tribunal glaringly never did. The Appellants are aggrieved by the failure of the lower Tribunal in this regard. The Respondents who had judgment in their favour naturally are not. They believe that what the lower Tribunal has done in this regard is permissible by equity and justice. I know of no principle of equity that can be invoked to justify denial of hearing. The concepts of equity and justice by their nature demand that when what a court will end up doing will materially affect someone, then that person should be heard. It is sufficiently clear from the judgment of the lower Tribunal that the liability of the 5th and 6th Appellants was predicated on that of the 1st Appellant, while that of the 1st Appellant was predicated on the acts of the 3rd Respondent. In order words, if the 1st Appellant was not found liable, no liability could be imputed to the 5th and 6th Appellants. The lower Tribunal having conceived that the judgment in APPEAL NO: IST/APP/01/2003 was sufficiently wide to accommodate the first and fourth claims of the Respondents without hearing the Appellants on the issue not only suo motu grouped the said 1st Appellant among the stock braking firms found liable to restore investors in the said appeal (a claim or relief not sought by the Respondents) but proceeded to make consequential order based thereon. In the light of all that has been said above, I am of the settled view that there is merit in the complaint of the Appellants that the lower Tribunal by raising the issue of grouping the 1st Appellant to be among the stock broking firms found liable to restore investors in APPEAL NO: IST/APP/01/2003 and ordering the same not only succeeded in breaching the Appellants right to fair hearing but indeed ended up granting the Respondents a relief which they did not seek in the instant action and which the said action likewise could not accommodate. This is obviously a miscarriage of justice.

The Originating Application containing the reliefs sought by the Respondents together with “The Facts giving rise to the Applicants’ claims and this Application” can be found at pages 1-8 of the Records. A painstaking scrutiny of the same clearly reveals that not a single person identifiable by name was mentioned as being an investor that lost Nestle Plc shares. Also there is absolutely no mention of the sum lost by any such unnamed investor talk less of the total sum in which the Appellants are to make restitution to investors who suffered losses.

The Respondents have submitted that the lower Tribunal has given the SEC, the apex supervisory body, the duty to organise the restitution and that the said SEC knows that Chief Dr. Sunday Dankaro is affected as well as all those that bought the shares. The shares, the Respondents further said, were distributed through known stock broking firms and these firms know the investors affected.

The submissions of the Respondents tend to suggest that they do not appreciate their case. The Respondents amongst others are seeking for orders directing that a specified sum of money in the accounts of the 1st, 5th and 6th Appellants which they alleged to be part of the funds traced on behalf of the investors who lost their investments and which sum of money is to be used to restore the affected investors, should be released or paid over them (i.e. Respondent). The question is should the Respondents, who are claiming such a specified sum and the source of which they apparently know, be heard to say that the investors in question are known to SEC and/or that it is for SEC to work out what is due to the investors? Without specifying the sum in which the investors are to be compensated, how then would the lower Tribunal be in a position to determine whether or not the Applicants are not claiming more than the investors actually lost? There is therefore a serious lapse in the conception of the instant case. It would appear that this is what informed the lower Tribunal entering judgment in this case in the

manner it did and thereby ended up granting the Respondents reliefs neither sought nor supported by the facts and evidence before it. In conclusion and given all that has been said before now, Issues 4 and 5 are resolved in favour of the Appellants.

This appeal is meritorious given the resolution of all the three Issues for determination of the appeal in favour of the Appellants. The appeal therefore succeeds and is hereby allowed. The judgment of the Investment and Securities Tribunal delivered on 29th October, 2004 in favour of the Applicants therein (now 1st and 2nd Respondents in this appeal) is accordingly set aside. The Originating Application of the said Applicants/Respondents is hereby dismissed.

Costs in the sum of N10,000.00 is awarded in favour of each of the 1st, 2nd and 3rd Appellants and against the 1st and 2nd Respondents jointly and severally.

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Other Citations: (2009)LCN/3268(CA)