International Standard Securities V. Union Bank of Nigeria Plc (Registrar’s Department) (2009)
LawGlobal-Hub Lead Judgment Report
MARY U. PETER-ODILI, J.C.A.
This is an appeal against the Ruling of the Investment and Securities Tribunal delivered on the 24th of July 2004 and also against the final judgment of the Tribunal delivered on the 19th of October, 2004.
FACTS:
The action leading to this appeal was commenced by the present Respondent by way of Originating Application at the Investments and Securities Tribunal, Abuja on the 3rd of November, 2003. The Respondent at the Tribunal (Now Appellant) filed its statement of Defence and counter affidavit on 5th December, 2003 and on the same 5th December 2003, the Tribunal fixed the case for hearing on 14th January, 2004.
The hearing did not start on the said 14th January 2004 because the Applicant had requested an adjournment to enable it amend its Originating Application and witness Statement.
While the Applicant was yet to reflect the proposed amendments, the Respondent brought an application dated the 4th March, 2004 seeking an order of the Tribunal striking out the Applicant’s case for want of diligent prosecution which application was refused on the 26th of March, while the case was adjourned for hearing to the 29th and 30th of April, 2004.
On that date while counsel for the Applicant was requesting another adjournment to enable her put before the Tribunal documents she had received from the Securities And Exchange Commission relevant to the case. Learned counsel for the Respondent countered that the Tribunal had exhausted its jurisdiction either to grant an adjournment or take any further step in the case. He argued that by Section 236(5) of the Investments And Securities Act which created the Tribunal, the Tribunal must decide any case coming before it within three months from the date of commencement of the action. He insisted that the three months having elapsed since the filing of the Originating Application on the 3rd of November 2003, the jurisdiction of the Tribunal to entertain or continue to entertain the action had corresponding expired.
The Tribunal in response, ordered both parties to file written addresses on the contention of learned counsel for the Respondent. The Briefs were filed and exchanged and on the 24th June, 2004 the Tribunal gave a considered Ruling in which it maintained that it remained seised of jurisdiction to hear and conclude the case even after the three months period limited by the Act had expired.
Sequel to the above stated Ruling, the tribunal adjourned the case to the 21st and 22nd of July, 2004 for hearing. The case was duly heard and after hearing of the addresses the Tribunal delivered its judgment on the 19th October, 2004 wherein the Tribunal held that the Respondent is liable to indemnify the Applicant in the sum of N15,042, 833.12 being the total loss suffered by the Applicant as a result of the verification exercise carried out by the Applicant on the request of the Respondent involving 344,923 units of Unilever Plc shares which were sold by the Respondent, the Respondent having issued a letter of indemnity to the Applicant covering any loss arising from the said verification.
Dissatisfied with both the Ruling of 24th June and the Judgment of 19th October, 2004 the Respondent filed its Notice of Appeal dated 22nd October, 2004 which Notice of Appeal was by leave of Court of Appeal amended with 10 grounds of appeal. It can be seen that only Grounds 1 and 3 read cumulatively attack the jurisdiction of the Tribunal which are really relevant for the determination of this appeal. These two grounds read as follows without the particulars:-
GROUND NO. 1
The Tribunal erred in law when in construing Section 236(5) of the Investment And Securities Act 1999 it failed to accord the provision of the statute with its natural and ordinary meaning.
GROUND NO.3
The judgment of the lower court was delivered on the 19th of October, 2004 on which date the jurisdiction of the Lower Court had (sic) lapsed/expired.
On the 6th November 2008, day of the hearing of this appeal Mr. Joseph for the Appellant adopted their brief filed on 6/11/08 and a Reply Brief filed on 9/1/08 and urged this court to allow the appeal.
On their part, Mrs. Ufot learned counsel for the Respondent adopted their brief filed on 5/12/07 asking that the appeal be dismissed. She further stated that Grounds 2, 4, 5, 6, 7, 8, 9, and 10 of the Grounds of Appeal abandoned by the Appellant should be dismissed.
ISSUE FOR DETERMINATION
The Appellant raised a sole issue for determination which is;-
WHETHER OR NOT Section 236(5) of the Investments And Securities Act 1999 (hereinafter referred to as “ISA”) is mandatory.
The Respondent adopted the single issue formulated by the Appellant but added a second issue as follows:-
ISSUE NO.2
If the answer to Issue NO.1 be that Section 236(5) of the Investments And securities Act is mandatory, and validly so, whether, having regard to the merits of this case, it will be fair and just to set aside the judgment of the Tribunal because the case was not concluded within three months from the commencement of the action, when the Appellant had not shown that it had (sic) suffered any miscarriage of justice.
I have decided to re-adjust the two issues for determination in a single issue but with a variation as this court is entitled to do to suit the purpose of answering adequately the area of conflict between the parties and that issue drafted by me is as follows:-
WHETHER OR NOT Section 236(5) of the Investments And Securities Act 1999
(hereinafter referred to as “ISA”) is mandatory and if yes, whether in the circumstances of the case it will be Fair and just to set aside the judgment of the Tribunal, the case not having been concluded within three months from the commencement of the action.
SINGLE ISSUE
Learned counsel for the Appellant stated that it is trite that a court or a tribunal derives its jurisdiction from its enabling Act and for the Investments Act Securities Tribunal, the relevant Act is the ISA. He referred to Section 236(5) thereof which is to be read alongside Sections 241(3) and 242 of the ISA. That in interpreting Section 236(5) of the ISA the background of the hitherto inordinate delays which are attendant in the exercise of the jurisdiction now conferred on the Investment And Securities Tribunal (IST) being intended to be eliminated by the ISA ought to be kept in focus and so IST is created as a fast track different from when the jurisdiction was handled by the Federal High Court. He cited Bookshop House v. Stanley Construction Co. Ltd (1986) 3 NWLR (pt. 26) 87.
Mr. Joseph stated on that it is an elementary principle of construction that the provisions of ISA ought to be given there ordinary and natural meaning and when that is done the intention of the lawmaker in regard to Section 236(5) of the ISA the expression “shall” therein would be taken as peremptory, mandatory and imperative that every proceeding before the IST, from commencement to delivery of its final decision must not exceed three months. He further stated that whereas the proviso to Sections 236(1) and (2) empowers the IST to exercise some discretionary power in extending the time in circumstances stated therein no such provision is made for Section 236(5). That applying the maxim, “expression unius personae velrei, est exclusion alleves” which means, “what is expressed by the lawmaker delimits and excludes what is not expressed”, He said that the intention of the lawmaker for the IST is not to extend the time for exercising its power under Section 236(5). He referred to Odofin & anor v. Chief Agu & anor (1992) 3 NWLR (pt. 229) 350.
Mr. Joseph submitted that unless ISA contains and confers power to enlarge time prescribed in section 236(5) as it provides in Section 236(10), Section 236(5) is mandatory and the IST therefore lacks the competence to adjudicate beyond the statutory three(3) months period. That since no application by the Respondent for enlargement of time beyond the three (3) months period (which application the IST lacked the competence to have entertained) and that the IST not having made any order to extend the time beyond the three month period (even though such order would have been a nullity) on the authority of Odofin v. Agu (supra) the period of three months statutorily provided for in Section 236(5) applied. He cited Mayor ETC of Westminster v. N.W. Railway Co. (1905) AC 426.
He further contended that the limit of the exercise of the adjudicative jurisdiction of the IST is the three month period provided for in Section 236(5) of the ISA. That it is settled that an action is commenced when the originating process is filed. He cited Egbe v. Adefarasin (1987) 1 NWLR (pt. 47) 1 at 20 G- H.
Mr. Joseph said in this instance the originating application was filed on the 3rd November 2003 and so the 1ST purported delivery of its decision on the 19th October 2004, a period of eleven and a half months the Tribunal lacked the necessary competence much earlier which was by the 2nd February 2004 which prevented it from exercising its jurisdiction. That the resultant effect is that the entire process of adjudication by the IST in this matter is a nullity. He cited Afribank Nigeria Plc v. Akwara (2006) 1 SC (pt. II) 41 at 50.
Learned counsel for the Appellant stated on that the Tribunal interpreting Section 236(5) ISA had referred to Section 237(1) ISA which enables the Tribunal to make rules regulating its procedure and therefore chose to interpret Section 236(5) in the light of the Investment and Securities Tribunal (Procedure) Rules 2003, which provides for extension of time and concluded that because the Rules give a lot of time for pre-trial formalities, Section 236(5) must be held to be directive and not mandatory. He contended that this is a clear misdirection because the Investments and securities Tribunal (Procedure) Rules 2003 is a subsidiary legislation to ISA. The Rules must conform to the ISA and the spirit of the ISA must be alive and transcend the Rules. He cited Onurah v. Kaduna Refining Company Ltd (2005) 2 SC (pt. 11) 1 at 6; Phoenix Motors Ltd v. N.P.F.M.B. (1993) 1 NWLR (pt. 272) 718 at 728; Din v. Fed. Attorney-General (1988) 4 NWLR (pt.87) 147 at 187; Odeneye v. Efunuga (1990) 7 NWLR (pt. 164) 618 at 635.
He stated on that the Tribunal had not established any ambiguity in the provision of section 236(5) of ISA to warrant a departure from the long established cannon of construction that where the words used in a statute are direct and straight forward and unambiguous, the construction of the words must be based on the ordinary plain meaning of the words. He cited African Newspapers v. Nigeria (1985) 2 NWLR (pt. 6) 137 at 159; Akoh v. Abuh (1988) 3 NWLR (pt. 85) 696 at 713; Oloba v. Akereja (1988) 3 NWLR (pt. 84) 508 at 520.
Mr. Joseph further stated that it is the constitution that created the IST and it is the same constitution which gave jurisdiction that also sets its limitation or, terminates its jurisdiction by effluxion of time whenever it exercises its adjudicative powers three months after commencement. Thus three months after the commencement of an action before the IST, the IST ceases to have jurisdiction by effluxion of time and it is not for the Tribunal to e xpand its jurisdiction. He referred to Kraus Thompson Organisation v. National Institute for Policy & Strategic Studies (2004) 5 SC (pt. 1) 16 at 22; Araka v. Egbue (2003) 7 SC 75.
Mr. Joseph for the Appellant went on to say that a combination of Sections 316(1) and (4) (b) of the 1999 Constitution which deal with and define “existing law” incorporated ISA wholesale into the Constitution and therefore the provisions of Section 236(5) of ISA are constitutional and valid. That ISA came into effect on the 26th May 1999 about three days before the 1999 Constitution which came into effect on 29th May 1999. That by virtue of Section 316 (1) of the 1999 Constitution the IST is deemed to have been established under the 1999 Constitution which recognizes Decree NO. 45 of 1999 as an existing law and pursuant to which same Section 316 (1) is constitutionally empowered to continue to function until other provisions are made. That since there is no amendment to Section 236(5) of ISA, the statutory limitation of three months shall also continue until the ISA is amended by the same lawmaker and not the court or Tribunal. He cited Adigun v. Attorney-General Oyo State (1987) 1 NWLR (pt. 53) 678 on the supremacy of the constitution and provisions over any other statute or law.
Learned counsel stated that the request for the demonstration of miscarriage of justice by the IST in its judgment is an exercise without competence or jurisdiction, since it pleased the lawmaker who is aware of the provisions of section 294 (1) of the 1999 Constitution or the amendments to Section 258(1) of the 1979 Constitution not to incorporate the same into Section 236(5) ISA. He cited Nwobodo v. Onoh (1984) 1 SC 1 at 34 – 35; Okike v. L.P.D.C.(2005) 3 – 4 SC 49 at 76.
In response learned counsel for the Respondent stated that while Section 258(1) of the 1979 Constitution was rightly held to be mandatory in the case of Ifezue v. Mbadugha (1984) 1 SCNLR 427, having regard to its history, limited scope as well as it consistency with the governing Section 33(1) and (4) of the Constitution, Section 236(5) of the Investments and Securities Act (ISA) cannot bear such a construction, seeing that it cuts clean across the Constitution. That to hold Section 236(5) as mandatory would be to erect it in stark opposition to Section 36(1) and (4) of the 1999 Constitution which re-enacted word-for-word, Section 33(1) and (4) of the 1979 Constitution. That the case of Ifezue v. Mbadugha is not an authority for the proposition that Section 236(5) of the ISA ought to be construed as mandatory. He referred to Sections315 (1) (2) and (3) of the 1999 Constitution. That to suggest that a provision in a statute which derogates from the constitution should be construed as mandatory and binding is not only to misread the Supreme Court decision in Ifezue’s case (supra) but also to strike at the very authority of the Constitution.
Learned counsel for the Respondent stated on that laws of a state on its court’s system or dealing with the exercise of judicial power in general, ought to be read together as a single code, and understood as a harmonious whole. He cited Amokeodo v. IGP (1999) 6 NWLR (pt. 607) 467 at 481; Akaihe v. Idama (1964) 1 All NLR 322; Ariyo v. Ogele (1968) 1 All NLR 1.
That a court in construing Section 236(5) of ISA should apart from a comprehensive consideration of the entire statute take judicial notice of other facts about the reality of life in Nigeria and the condition and atmosphere in which the courts have to do their work. He referred to Senator Abraham Adesanya v. President of Nigeria (1981) 2 NCLR 358.
He further stated that in Section 241(3) the Act provides that the decision of the Tribunal “shall be enforced as if it were a judgment of the Federal High Court”, upon registration of same with the Chief Registrar of the Federal High Court. That it is clear from the provisions of Section 241 (i), (3) that the Act intends the IST to operate as a full-fledged civil court for all purposes enjoying a status analogous to that of the Federal High Court and that this position is further buttressed by Section 242, 243 and 245 of the Act.
That the salient provisions of the Investments And Securities Tribunal (Procedure) Rules, 2003 made pursuant to Section 237(1) of the enabling Act have provided for the procedure to be adopted in Rules 2 and 3 of the Tribunal Rules of procedure.
Mrs. Ufot stated on that the overriding objective of the Rules of the Tribunal are eloquently in harmony with Section 36 of the 1999 Constitution which demands fair hearing within a reasonable time. That the first part of Section 236(5) of the Investment And Securities Act enjoins the Tribunal to exercise its powers under the Act, conduct its proceedings in such manner as to avoid undue delays. That this means that the Tribunal is commanded by Section 236(5) to avoid undue delays in the conduct of its proceedings but rather what is intended by the lawmaker is directory, advisory or exhortatory only.
Learned counsel for the Respondent further contended that the use of the word “shall” in Section 236(5) of the Investment And Securities Act alone does not settle the question as to whether the provisions of a statute are mandatory or directory. She cited Ifezue v. Mbadugha (1984) 1 SCNLR 427 where it was held by Kayode Eso JSC that it is now trite law that the word “shall” does not always mean must, a matter of compulsion. That it could be interpreted where the con so admits as ‘may’, whereas may is not always may. It may sometimes be equivalent to shall. She also referred to Nokes v. Doncester Amalgamated Collieries Ltd (1940) AC 1014 at 1022; Montreal Steel Rail Co. v. Normandin (1917) AC 170 at 174.
She went on to contend that when a judgment is declared null and void for non-compliance with Section 294(10) of the 1999 Constitution, the appellate court would remit the case back to the court below to be heard de novo by a different Judge or panel of justices as was done in Ifezue’s case and other such cases. That in this case to declare the decision of IST invalid by reason of non-compliance with Section 236(5) of the Act would leave the parties with no other competent forum for rehearing, as the Tribunal can no longer muster a different panel of five assessors to hear the case de novo. That this incapacitation arises because under Section 225(10) of the ISA, the Tribunal is compassed of nine members, while by subsection (4) the quorum at any sitting of the Tribunal is stipulated to be five. That once a panel comprising not less than five member has rendered a decision subsequently nullified on appeal, it becomes practically impossible to hear the case de novo by a different panel of Assessors. That in the present case, the judgment subject of this appeal was decided by six members of the Tribunal, leaving only three, a number not enough to constitute a fresh panel for any new trial which situation can only defeat the purpose of the legislature by advancing rather than remedying the mischief of the legislative seeks to prevent which also translates into denial of fair hearing contrary to Section 36(1) of the 1999 Constitution. She cited The Queen v. The Justices of the County of London (1893) 3 QB 47.
Learned counsel for the Respondent stated that Section 36 of the 1999 Constitution vests the rights to fair hearing on the citizen and to arbitrarily delimit the time within which that right may be exercised would amount to an unconstitutional interference with the exercise of that right. He cited Adisa v. Oyinwola (2000) 10 NWLR (pt. 674) 116; Section 6(6) (a) of the Constitution which provides for the overriding supremacy of the constitution to all inherent powers and sanctions of a court of law. That any doubt that may be in existence as to the relationship between the Constitution and an existing law has been dispelled by the cases of Nwankwo v. The State (1985) 6 NCLR 228 which declared null and void Section 51 of the Criminal Code Law having been found in derogation of the freedom of speech guaranteed by Section 36 of the 1979 Constitution. That it is not correct to say that Sections 315 and 316 of the Constitution have incorporated ISA wholesale into the 1999 Constitution and therefore the provisions of section 236(5) of ISA are constitutional and valid.
She referred to Ikine v. Edjerode (2001) 18 NWLR (pt. 745) 446; Unongo v. Aku (1983) 2 SCNLR 322 where the Supreme Court considered the fate of Sections 129 (3) and 140(2) of the Electoral Act (NO.8), 1982 which are in pari materia with Section 236(5) of the Investments And Securities Act. That Electoral Act had also provided for completion of proceedings in the High Court not later than 30 days from the date of the election concerned. The Supreme Court had held that the provision deprived the person a fair-hearing within a reasonable time and so that provision in the Electoral Act was null and void.
Mrs. Ufot went on to say that no appellate court had invalidated a judgment of a lower court or Tribunal for non-compliance with any period of time limited for the conduct and conclusion of cases by ignoring Section 294(5) of the 1999 Constitutions. She cited Adekanye v. FRN (2005) 15 NWLR 433 where the court held that the Section 4(1) of Decree 18 of 1994 creating the failed Banks Tribunal which called for conclusion of case within 21 days did not result in a loss of jurisdiction by the Tribunal if the 21 days was not complied with and that the judgment was only rendered void and liable to be set aside if the party complaining was doing so because he had suffered a miscarriage of justice. She cited Mika’ilu v. The State (2001) 8 NWLR (pt. 715) 469. That the merits of the case before the Tribunal ought to be considered in order to see whether the outcome of the case would have been different if the case was heard and decided within three months of the commencement of the action. That if the court is not sufficiently persuaded to nullify the provisions of Section 236(5) of the Investments And Securities Act, this court should hold that any non-compliance with it immediately automates the application of Section 294(5) of the Constitution is the regnant legislation in Nigerian with regard to any instance of noncompliance with time for performing a judicial duty. That no statute creating a court or tribunal can construe to contract it out of the constitutional requirement. That the requirement of Section 294(5) of the Constitution 1999 should be read into Section 236(5) of the Investments And Securities Act.
In reply on points of law learned counsel for the Appellant said it is the condition and atmosphere in which the courts have to do their work that precipitated the creation of the Investments And Securities Tribunal (IST) and conferring on its, the sale jurisdiction for the speedy hearing and determination of matters on stocks and shares. That it is by reason of taking the Nigerian con into consideration that brought about the specific creation of the IST and the promulgation of the Investments And Securities Act (IST). That it is understandable why the lawmaker, who was mindful of section 294 of the 1999 Constitution which promulgated immediately before the ISA, guidely chose to name its creation “Tribunal” and not a court of law but to give the same the status of a court. That it is the Legislator who chose the right word to express his intension to, so as not to be affected by Sections 294(1) and (5) of the 1999 Constitution which would otherwise have made nonsense of the whole of the ISA in spirit, soul and body.
He distinguished between Section 241(1) (a) of the 1999 Constitution which provides for appeal from decisions of the Federal High Court or a High Court to the Court of Appeal as of right, and Section 243 (1) ISA which has provided for the decision of the Tribunal lying on appeal on points of law to the Court of Appeal within 30 days after the date of such decision was given.
Learned counsel for the Appellant said Section 241 (1) (a) of the 1999 Constitution gives a right of appeal to an aggrieved party on the decision of a High Court sitting at first instance on both issues of fact and law while Section 234(1) of the ISA gives a right of appeal only on points of law to an aggrieved person on the decision of the IST. This counsel said cannot be said to be in conflict with the provisions of the 1999 Constitution which has guidedly used the word High Court (Federal or State) and not Tribunal. He cited Udosen v. NECON & ors (1997) 5 NWLR (pt. 506) 570 at 586.
He further stated that Rules do not confer jurisdiction or competence; it is the Enabling Statute that confers jurisdiction and competence. That if the Tribunal cannot do anything to prevent or avoid a delay, it can sanction the party that causes the inordinate delay as in this instance where the Respondent caused the delay. cited Din v. Federal Attorney-General (1988) 4 NWLR (pt. 87) 147 at 187.
That where the provision of a statute or rule of court is clear, the duty of the court is to interpret that clear provision by giving the plain wordings their ordinary interpretation without more. He cited Kraus Thompson Organisation v. National Institute For Policy & Strategic Studies (NIPSS) (2004) 5 SC (pt. 1) 16 at 22; Oguntade JSC in Afribank Nigeria Plc v. Akwara (2006) 1 SC (pt. II) 41 at 50.
Learned counsel said that Section 36(1) being the bedrock of natural justice applies to both Courts and Tribunals. He cited Attorney-General Lagos State v. Eko Hotels Ltd & anor (2006) 9 SC 46 at 65.
That is a summary of what is before us and the clear point has to be made that the question whether a statute is mandatory or directory calls to be determined upon. It is after it has been determined that the statute is mandatory or directory that the court will then consider, if necessary, the legal consequence that would flow from the classification given to the statute. Amokeodo v. I.G.P. (1999) 6 NWLR (pt. 607) 467 at 481.
A public body vested with Statutory power must take care not to exceed or abuse its powers, must keep within the limits of the authority vested in it, and must act reasonably and in good faith. See Wilson v. Attorney-General Bendel State (1985) 1 NWLR (pt. 3) 572.
The jurisdiction of the State High Court cannot lightly be taken away except by very clear words and intention of a law validly made. Therefore, if a provision in a statute ousting the ordinary jurisdiction of the court must be construed strictly, this means that if such provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court. Ikine v. Edjerode (2001) 18 NWLR (pt. 745) 446 at 483; Barclays Bank of Nig. Ltd v. CBN (1974) 6 SC 175.
It has been said again and again that while it is true that court’s attempt to do substantial justice and to avoid technicalities, they are however bound by the statute law. Also if the statute law says there shall be jurisdiction in a certain event and that event has occurred as has happened in this case at hand then it is impossible for the Tribunal or any other court to have jurisdiction. See Mika’ilu v. state (2001) 8 NWLR (pt. 715) 469; Orange v. Jibowu 13 WACA 41.
Neither Practice Directions nor rules of court can overrule statutory provisions. In other words, rules of court are not as sacrosanct as statutory provisions of law University of Lagos v. Aigoro (1984) 11 SC 152.
Rules of court are made to be obeyed by the parties to a suit, and must be obeyed by the parties. There will be no order in judicial process where the rules governing the process are not obeyed or where parties to a suit are free, for example to seek relief from a court when they choose without any regard to the rules providing for time within which a relief could be sought in the court. Afribank (Nig.) Plc v. Akwara (2006) 5 NWLR (pt. 974) 619 at 646, 655.
A rule of court cannot confer jurisdiction. It only regulates the practice of the court in the exercise of the power derived from another source or from elsewhere Afribank (Nig) Plc v. Akwara (2006) 5 NWLR (pt 974) 619 at 654; Dada v. Ogunremi (1962) 2 SCNLR 417.
In the construction of a statutory provision, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. The Latin maxim is “expression unius est exclusio alterius”, that is the expression of one thing is the exclusion of another. See Ehuwa v. Ondo State Independent Electoral Commission (2006) 18 NWLR (pt. 1012) 544 at 569; Ogbuanyinya v. Okudo (1979) 6 – 9 SC 32; Military Governor of Ondo State v. Adewunmi (1988) 3 NWLR (pt. 82) 280; Attorney-General Bendel State v. Aideyan (1989) 4 NWLR (pt. 118) 646; Udoh v. Orthopedic Hospital Management Board (1993) 7 NWLR (pt. 304) 139.
Ifezue v. Mbadugha (1984) 1 SCNLR 431 per Aniagolu JSC:-
“If there is nothing to modify alter or qualify the language of a statute, it must be construed in the ordinary and natural meaning of the words and sentences used……… The object of all interpretation is to discover the intention of the law makers which is deducible from the language used. Once the meaning is clear the courts are to give effect to it. The Courts are not to defeat the plain meaning of an enactment by an introduction of their own words into the enactment”.
The words of a statute must be construed in accordance with the intent of the law maker. The primary duty of a court in the interpretation of a statutory provision is to give effect to the words used. Rossek v. A.C.B. Ltd (1993) 8 NWLR (pt. 312) 382 at 498.
It is not the function of a court of law to sympathise with a party in the interpretation of a statute merely because the language of the statute is harsh or will cause hardship. That is the function of the legislature. See Kraus Thompson Organisation v. NIPSS (2004) 7 NWLR (pt.901) 44.
In view of the principles above stated as guide I shall refer to the English case of Nokes v. Doncaster Amalgamated Collieries Ltd (1940) AC 1014 at 1022 per Viscount Simon L.C.
“The principles of construction which apply in interpreting such a Section are well established; the difficulty is to adapt well established principles to a particular case of difficulty. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. We must not shrink from an interpretation which will reverse the previous law for the purpose of a large part of our statute law is to make lawful that which would not be lawful without the statute, or conversely, to prohibit results which would otherwise follow. Judges are not called upon to apply their opinions of sound policy so as to modify the plain meaning of statutory words, but where, in construing general words the meaning of which is not entirely plain there are adequate reasons for doubting whether the Legislature could have been intending so wide an interpretation as would disregard fundamental principles then we may be justified in adopting a narrower construction. At the same time, if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that parliament would legislate only for the purpose of bringing about an effective result”.
It is an accepted rule on Interpretation of any document, whether a will, contract or law that the document must be read as a whole and its parties interpreted in that light. An effort must be made to achieve harmony among its parties. See Akaighe v. Idama (1964) All NLR 317.
The appropriate approach to the interpretation of clear words of a statute 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. Ehuwa v. O.S.I.E.C. (2006) 18 NWLR (pt. 1012) 544; Fawehinmi v. I.G.P. (2002) 7 NWLR (pt. 767) 606.
The principle governing the use of “shall” in a legislative sentence is that it is generally imperative or mandatory. In its ordinary meaning, it is a word of command which is normally given a compulsory meaning because it is intended to denote obligation. However, it is sometimes intended to be directory only and in that case, it is equivalent to “may” and will be construed as being merely permissive but the situation presently “shall” in Section 236(5) ISA within the con of the legislation is intended as mandatory. Amokeodo v. I.G.P. (1999) 6 NWLR (pt. 607) 467 at 485 – 486.
No universal rule can be laid down for determining whether the provisions of a statute are mandatory or directory. In each case, the intention of the legislator must be ascertained by looking at the whole scope of the statute and in particular, at the importance of the provision in question relative to the general object to be secured
Amokeodo v. I.G.P. (1999) 6 NWLR (pt. 607) 467 at 481.
Section 236(5) of the Investment And Securities Act, 1999 Provides as follows:-
(5) The Tribunal shall, in the exercise of its powers under this Act conduct its proceedings in such manner 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.
Mrs. Ufot, learned counsel for the Respondent had argued that Section 236(5) of the Investment And Securities Act, 1999 be read in conformity with section 36(1) of the 1999 Constitution which is in pari material with Section 33(1) of the 1999 Constitution and provides as follows:-
Section 36(1) 1999 Constitution:-
(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a ‘air hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”.
It is for the above constitutional provision whether Section 36 of the 1999 Constitution or Section 33 of the 1979 Constitution that learned counsel for the Respondent opines that provisions of Section 236(5) of the Investment And Securities Act 1999 should be taken as directory and not mandatory. This position the Appellant rejects contending that the clear words of the statute that Section 236(5) of the ISA 1999 cannot be understood other than that they are mandatory and should not be treated any other way.
In the Ruling subject of the first appeal the Investment and Securities Tribunal held inter alia:-
“It is pertinent to state that the Applicant/Respondent filed its originating application on November 3rd, 2003. The matter was adjourned to January 14th 2004 (Applicant’s counsel wrote requesting for an adjournment to enable them procure certain documents’ from SEC); it came up subsequently on March 26th 2004 upon the filing of an application by the Respondent/Applicant to strike out the matter; and lastly on 29th 2004. On the last adjourned date the Respondent/Applicant vehemently resisted the Applicant/Respondent’s application for further adjournment to enable them prepare and file their amended originating application. One of the reasons adduced for the delay by the Applicant/Respondent was non-receipt of the certified true copies of the APC record of proceedings from SEC… In this case however, the material ingredient for the provision in Section 236(5) of the Act to become effective has not taken place, so it cannot be said that the Tribunal has ceased to have jurisdiction to hear and determine the matter. Presently, the Tribunal has not commenced the hearing of the suit and is of the opinion that the matter is still at its preliminary stage”.
In effect what the Tribunal said is that until the hearing of the case the provisions of Section 236(5) ISA would not come into operation as to terminate the proceedings 3 months thereafter. The interpretation above given by the Tribunal in my humble opinion runs counter to what the Supreme Court through Tobi JSC said in Kraus Thompson Organisation v. National Institute For Policy & Strategic Studies (NIPSS) (2004) 5 SC (pt. 1) 16 at 22 wherein he stated:-
“Where provision of a Statute or Rule of Court is clear the duty of the court is to interpret the clear provision by giving the plain wordings their ordinary interpretation without more. It is not the function of the court of law to sympathise with a Party in the interpretation of a statute merely because the language of the statute is harsh or will cause hardship. That is not the function of the Court. That is rather the function of the legislature”.
That the Tribunal took the word “from the date of commencement of the action…” Provided in the Act as synonymous or the same as “from the date of hearing of the suit” is the reason the Supreme Court had in Araka v. Egbue (2003) 7 SC 75 at 85 said:-
“The duty of the court is to interpret the words contained in the statute and not to go outside the words in search of an interpretation which is convenient to the court or the parties or one of the parties. Even where the provisions of the statute are hard in the sense that they will do some inconvenience to the parties, the court is bound to interpret the provisions once they are clear and unambiguous. It is not the duty of the court to remove the chaff from the grain in the process of interpretation of statute to arrive at favourable terms for the parties outside the contemplation of the lawmaker. That will be tantamount to traveling outside the statute on a voyage of discovery”.
It is because of that voyage that brought about, that attitude of the Tribunal in its interpretation which is clearly wrong as “commencement of action” cannot be the same as “hearing of the case. Commencement of action is nothing other than when the suit is first instituted that is filed either by a writ or originating process as was applied here. See Egbe v. Adefarasin (1987) 1 NWLR (pt. 47) 1 at 20 G-H.
Mrs. Ufot for the Respondent suggested that the Investments And Securities Tribunal (Procedure) Rules 2003 made pursuant to Section 237(1) of the Investment And Securities Act, Rules 2 and 3 precisely deal with the “overriding objective” of the Rules which objective is in harmony with Section 36 of the 1999 Constitution providing for “fair hearing within a reasonable time”.
I would need to recapture the provisions of Rules 2 and 3 of the IST (Procedure) Rules which are:-
“2(1) the overriding objective of these rules is to enable the Tribunal with the assistance of the parties to deal with cases fairly and justly.
(2) Dealing with a case fairly and justly includes-
(a) Providing a reliable, informed, expedient, flexible and affordable dispute settlement mechanism for investors, public companies capital market operators, self regulatory organizations and other market participants.
(b) Promoting capital market integrity and stable economy;
(e) Dealing with cases in ways which are proportionate to the complexity of the Issues and to the resources of the patties;
(d) ensuring so far as practicable, that the parties are on an equal footing procedurally, including assisting an unrepresented party in the presentation of his or her case without advocating the course he or she should take.
(e) Using the Tribunal’s special expertise effectively; and
(f) Avoiding delay, so far as compatible with the proper consideration of the issue.
3(1) the tribunal shall seek to give effect to the overriding objective when it-
(a) Exercise any power under these rules; or
(b) Interprets any rule.
(3) In particulars the tribunal shall manage cases actively in accordance with the overriding objective.
To refresh the mind, this matter was instituted by an Originating Application at the Investments And Securities Tribunal on the 3rd November 2003 and the tribunal on the 5th December 2003 fixed the 14th of January, 2004 for hearing. On that 14th January 2004 the Applicant requested for adjournment to enable it amends its Originating Application and Witness Statement. On the 14th March, 2004 the Respondent therein sought an order striking out the case for want of diligent prosecution which application was refused on 26th March. The Tribunal adjourned for hearing to 29th and 30th April 2004. Later by order of the Tribunal briefs were written and exchanged and on the 24th June, 2004 the Tribunal gave a considered Ruling in which it maintained that it remained seized of jurisdiction to hear and conclude the case even after the three months period limited by the Act had expired stating among other things, “that a strict interpretation of the sub-section will offend the intent of the Act and result in denial of fair hearing”,
I do not see how I can go along with the reasoning and conclusion above in view of the clear, unambiguous provision 5 of the ISA Section 236(5). Just like the Respondent’s counsel Mrs. Ufot the Tribunal’s thinking is that the Tribunal’s Procedure Rules gave the Tribunal the right to extend time within which to complete the assignment of determining the matter before it. Thus elevating the Rules above the Act which is not the correct position as neither Practice Directions nor indeed Rules of Court can override statutory provisions. See Afibank v. Akwara (2006) 1 SCNJ 223.
For emphasis I would restate section 236(5) of the Investment And Securities Act which provides-
“The Tribunal shall in the exercise of its powers under this Act; conduct its proceedings in such manner 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….”
From the provisions above it is without doubt intended that “to avoid undue delay the Tribunal shall dispose of any matter before it within three months from the date of the commencement of the action”.
The intendment or intention of the Parliament or lawmaker is shown with the brilliance of light and no importation of a possible denial of fair hearing can change anything. This is so because if what the Respondent posits is to be accepted then there would be no necessity of creating this special tribunal imbued with the power of the Federal High Court. Also the compliance of a court is a legal condition which cannot be waived by the parties. Therefore where as in this case there is the condition of want of compliance it is not a mere irregularity which can be cured by consideration of substantial justice but a fundamental defect fatal to the adjudication. It is for this reason that when the Tribunal ruled that it’s jurisdiction had not been ousted by expiration of time it was on the wrong premises of an erroneous interpretation of the ISA Section 236(5) within con extraneous to it and especially introducing the issue of fair hearing which did not come in at all. I place reliance on Odofin & anor v. Chief Agu & anor (1992) 3 NWLR (pt. 229) 350 at 369.
I agree with Mr. Joseph learned counsel for the Appellant that there was no basis to warrant a departure from the well and long established canon of construction that where the words used in a statute are direct, straight forward and unambiguous the construction of the words must be based on the ordinary plain meaning of the word which is the situation existing in this appeal and the statute in contention to wit Section 236(5) of the Investments And Securities Act 1999. Furthermore it is the Constitution that created the Act and gave jurisdiction to the Investments And Securities Tribunal and in so doing set a limitation to its adjudicatory powers and authority and so the Act stipulating a three month period for commencement of action and final determination has put paid to any other option including extending time in the name of “reasonable time” beyond that stated three month period. The implication therefore is that from commencement to judgment anything outside the three months thereafter the Tribunal acts without jurisdiction. It is for that reason that when the Originating Summons was initiated on 3rd November 2003 the jurisdiction of the Tribunal was no more after the 2nd of February and so the tribunal’s purported delivery of its decision on the 19th October 2004, a period of eleven and a half months, the competence of the Tribunal had ceased to be. See Afribank Nigeria Plc v. Akwara (2006) 1 SC (pt. II) 41; Akoh v. Abuh (1988) 3 NWLR (pt. 85) 696 at 713; Oloba v. Akereja (1988) 3 NWLR (pt. 84) 508 at 520; Anaka v. Egbwe (2003) 7 SC 75.
It is for the foregoing that I answer the single question posed in the positive and that is that Section 236(5) of the Investment And Securities Act 1999 otherwise referred to as “ISA” is mandatory and so it is fair and just to set aside the judgment of the Tribunal, the case not having been concluded within three months from the commencement of the action. This being one of the typical examples envisaged for which the Federal Supreme Court in Madukolu v. Nkemdilim (1962) 1 All NLR 587 at 594 per Bairamian FJ (as he then was) stated:-
“A courts is competent when
(1) It is properly constituted as regards members and Qualifications of the members of the bench and no member is disqualified for one reason or another and
(2) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction, and
(3) The case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal for the proceedings are a nullity however well conducted and decided the defect is extrinsic to the adjudication”. See also Sea Trucks Ltd v. Anigboro (2001) 1 SC (pt. 1) 56.
Having stated the reasons above I hereby allow the appeal on the Ruling which considered the matter of the absence of jurisdiction and set aside the decision of the Tribunal which was that it had jurisdiction and it did not. As a follow up all the proceedings thereafter including the final judgment of 19th October 2004 are hereby set aside as the court had no jurisdiction to further adjudicate. Therefore the appeal over the judgment is allowed as I find for the Appellant.
I order N30,000 for the Appellant to be paid by the Respondent.
Other Citations: (2009)LCN/3103(CA)
