Home » Nigerian Cases » Supreme Court » Nospetco Oil & Gas Ltd V. Olorunnimbe & Ors (2021) LLJR-SC

Nospetco Oil & Gas Ltd V. Olorunnimbe & Ors (2021) LLJR-SC

Nospetco Oil & Gas Ltd V. Olorunnimbe & Ors (2021)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C. 

The Appellant is in the business of oil and gas, as its object clause. The first to fourteenth Respondents, and many others, entered into an agreement with it by way of “Memorandum of Understanding for Joint Venture (J.V.) Supplies of Industrial Fuels”, wherein they were referred to as Joint Venture Partners [JV Partners]. Each JV Partner paid N450, 000 for a slot with a monthly profit of N40, 000 per slot.

In May 2007, the Securities and Exchange Commission [SEC], published a Public Notice titled “Illegal Investment Scheme operated by Nospecto Oil and Gas Ltd”, and being the apex regulatory body in the Capital Market, it put a stop to the Company’s business activities and got the Company’s accounts in all the Commercial Banks frozen. Since 2007, the money invested by the JV Partners, which runs into Billions of Naira, has remained in the custody of Central Bank [CBN].

​The said Respondents made strenuous efforts to recover their money from the fifteenth [SEC] and sixteenth [CBN] Respondents, to no avail. Whereupon, they filed an Application at the Investment and Securities Tribunal [Tribunal], wherein they claimed as follows:

a. A Declaration that the Applicants are entitled to know the total amount frozen from the 3rd Respondent’s accounts in various Commercial Banks in Nigeria including but not limited to Zenith Bank, First Bank, Union Bank, UBA, Skye Bank, Intercontinental Bank and Oceanic Bank by the 1st Respondent, since May 2007.

b. A Declaration that the Applicants are entitled to know the total amount frozen from the 3rd Respondent’s accounts in various Commercial Banks in Nigeria by the 1st Respondent and kept with the 2nd Respondent.

c. A Declaration that the continued withholding of the amount so frozen from the accounts of the 3rd Respondent by the 2nd Respondent without releasing same to the Applicants on demand is unlawful and inimical to the over-riding interest of the Applicants.

d. A Declaration that the refusal, omission and/or failure of 1st Respondent to direct 2nd Respondent to release the salvaged fund to the Applicants on demand is contrary to its statutory duty to protect the interest of the Applicants as spelt out in Section 13(1) & (k) of Investments and Securities Act 2007, ​ and the Judgment of the Investment and Securities Tribunal holden in Abuja in Case No. IST/OA/19/07 between the 3rd Respondent as the Applicant and the 1st Respondent as also a Respondent whereby it is stated inter alia that: “The Respondent has the statutory duty to protect investors including those that invested though the Applicant”.

e. A Declaration that the continued refusal, omission and/or failure of the 2nd Respondent to release the money in its custody to the Applicants despite the repeated demand and numerous representations amounts to insensitivity to the plights of the Applicants, legally indefensible and morally wrong.

f. An Order of this Honourable Tribunal compelling the 1st and 2nd Respondents to release without further delay all the amount so frozen from the 3rd Respondent’s accounts in their custody to the Applicants for immediate disbursement forthwith.

g. An Order mandating the 2nd Respondent to disclose the total amount in its custody based on the directive of the 1st Respondent with accrued interest since 2007 up to date and release same to the Applicants.

h. An Order compelling both the 1st and 2nd Respondents to set up without further delay an ad-hoc committee comprising 1st and 2nd Respondents, the Applicants, the Legal Representative to the Applicants, the Office of the Auditor-General of the Federation and Nigeria Police Force from the Special Fraud Unit, Milverton, Ikoyi, Lagos, to disburse the amount so recovered to the Applicants pro rata.

i. An Order compelling the 3rd Respondents to stop forthwith its illegal, unlawful and fraudulent business and banking activities, which it has been relentlessly carrying on under cover and clandestinely since May 2007, after its operations were halted by the 1st Respondent, and refund the money invested by the Applicants accordingly.

j. An Order of this Honourable Tribunal awarding the sum of N2 Million as cost of instituting and prosecuting the Application, traveling expenses to Abuja by the Applicants and their Legal Representatives to plead, ask, request and demand for the release of their money in the custody of the 1st and 2nd Respondent. And any other relief(s) as the Tribunal deems fit.

The Appellant, as 3rd Respondent at the Tribunal, filed its processes, including a Notice of Preliminary Objection, wherein it urged the Tribunal to dismiss/strike out the Application on the GROUNDS that:

  1. The Applicant lacks the locus standi to institute this Suit.
  2. This action is not maintainable in a representative capacity as the interest of the Applicants/Respondents is distinct and separate from each other and that of the alleged “Joint Venture Partners”.
  3. Leave of this Honourable Tribunal is required for the commencement of any Suit in a representation capacity.
  4. Leave was not first sought and obtained before filing of this Application.
  5. The condition precedent for the exercise of jurisdiction by this Hon. Tribunal was not fulfilled before the commencement of this Suit.
  6. This action discloses no reasonable cause of action against [it].
  7. The subject n utter of this Suit is not within Section 284 of the ISA 2007.
  8. There is another pending Suit initiated by the alleged “Joint Venture Partners” before the Federal High Court – – in Suit No. FHC/L/CS/408/08 –
  9. The subject matter, issues and Parties in this Suit are the same with that of suit No. FHC/L/CS/408/08.
  10. It is an abuse of judicial process to maintain two Suits between the same Parties on the same subject matter at the same time.
  11. The reliefs being presently sought for are too wide, generic, vague, bogus and uncertain.

The first to fourteenth Respondents, as Applicants at the Tribunal, filed a Reply to the Notice of Preliminary Objection, and Appellant filed its Reply on Points of Law. The Objection was argued and the Tribunal delivered its Ruling on 13/4/2011, wherein it held as follows:

This Tribunal had in an earlier Ruling in Case No. IST/OA19/07 between NOSPECTCO V. SEC (unreported) delivered on 03/12/08, wherein the 3rd Respondent was the Applicant – – – where it was held that this Tribunal has jurisdiction to entertain the Suit as per the nature of transaction that took place between the Parties, being a Collective Investment Scheme, and we find no sufficient reasons to make us depart from our position in that case. Consequently, this Tribunal holds as follows:

  1. The nature of business transaction carried on by the 3rd Respondent and the Applicants is a Collective Investment Scheme, which falls within Section 284(1)(f) of the Investments and Securities Act 2007.
  2. Having found that the business transaction between 3rd Respondent and the Applicants is one of Collective Investment Scheme, this Hon. Tribunal has jurisdiction to hear and determine the Applicants’ Suit.
  3. Accordingly, the 3rd Respondent’s Notice of Preliminary Objection of 25/11/10 fails and same is hereby dismissed.

Dissatisfied with the above Ruling, the Appellant herein appealed to the Court of Appeal, wherein it raised five Issues for Determination:

i. Whether Exhibit A attached to the Originating Application dated 7/9/2010 established a Collective Investment Scheme/Agreement as contemplated by Sections 153(1), 284(1)(f) and 315 of the Investment and Securities Act [ISA] 2007, as to confer jurisdiction on the Tribunal;

ii. Whether the Appellant’s right to fair hearing was not breached by the Tribunal in the hearing and determination of its Notice of Preliminary Objection;

iii. Whether the Tribunal has the jurisdiction to entertain the 1st — 14th Respondents’ reliefs as presently framed/sought;

iv. Whether the Suit founded on simple contract could be instituted in a representative capacity;

v. Whether the Suit is not an abuse of Court process same having been instituted during the pendency of Suit No. FHC/L/CS/408/2009 – at the Federal High Court, Lagos.

In its Judgment of 19/12/2011, the Court of Appeal held on Issue I that:

The summary of the Appellant’s argument on the issue of whether the 1st-14th Respondents were engaged in a Collective Investment Scheme – – is that Exhibit A does not qualify as such by virtue of Section 253 and Section 315 of the ISA [and] that the agreement Exhibit A does not show that the Parties’ agreement was made in contemplation of the fact of whether or not Appellant is a Capital-Market Operator. That argument is in my humble view misconceived being based on the alleged non- compliance by the Appellant and the Respondents with the provisions of the ISA. If the Appellant as protagonist in the drama, who engaged in activities that led to this Suit, deceived 1st-14th Respondents into an illegal scheme, it cannot turn around to claim that illegality to avoid the contract between the Parties – – – On the issue of privity of contract between the Appellant and 1st-14th Respondents, it is clear that Exhibit A – – in the name of Mrs. S. A. Umar further confirms that the 1st — 14th Respondents initiated and maintained this action in a representative capacity. This is despite the fact that the name of Mrs. Umar does not appear as a member of the NOSPETCO Investors Forum on the Court processes. However, the name of the said Mrs S. A. Umar is contained in the list of registered investors on page 343 – – of the Application for accelerated hearing dated 10/6/2011 before the Tribunal. The name was equally contained in the Applicant’s Amended Originating Application. The Investors came together and nominated representatives, who are representing them in Court, and I do not think in these circumstances, the Appellant can challenge the basis of their representative action – –

The Court of Appeal also resolved Issue No. ii against the Appellant, however, on Issue No- iii, dealing with jurisdiction, it held as follows:

If the claims of the 1st – 14th Respondents were limited to (i) compelling the Appellant to stop its allegedly illegal and fraudulent business and banking activities, then the Tribunal would have had exclusive jurisdiction, However, since the principal claims are against SEC and CBN, the Tribunal has no jurisdiction to determine them. As I said earlier, no matter how laudable the reasons, the Parties and the Tribunal cannot by complicity confer jurisdiction on it. That would be ultra vires the Constitution – – – Apart from the above, it is trite that a Court must be able to grant all the reliefs before it in order to enable the Court exercise jurisdiction. I am of the humble but firm view that the Tribunal has no jurisdiction to try the claims brought before it by 1st-14th Respondents. This pivotal issue of jurisdiction is resolved in favour of the Appellant.

It held as follows on the question of simple contract [Issue No. iv]:

Exhibit A was tendered by the 1st-14th Respondents – – to show the sample of the Joint Venture Scheme contract or agreement entered into by the Investors. It was never tendered to prove the agreement – – but a sample thereof. Secondly, the law is that where there are several persons with the same interest in a cause or matter, one or more of such persons, may with the leave of Court, sue or defend the Suit on behalf of or for the benefit of all the others. Thus, they can come together to attack a common enemy. When they are many, they may choose representatives among themselves to represent the common interest. When this is done it must be shown clearly in the Writ that the action is being instituted in a representative capacity. The representative capacity of the 1st — 14th Respondents was clearly shown. I do not see any merit in this point raised by the Appellant – – This Issue is resolved against the Appellant.

It resolved Issue v against the Appellant and concluded as follows:

Even though I had resolved the pivotal issue of jurisdiction in favour of the Appellant, I decided to consider and resolve all other Issues submitted for determination. I hold fast to the view that it is the duty of this Court as an intermediate Court to determine all issues submitted to it – I have hitherto resolved the pivotal issue of jurisdiction in this Appeal in favour of the Appellant. The Appeal is therefore allowed.

Although its Appeal was allowed, the Appellant is dissatisfied with parts of the Judgment, wherein Court of Appeal held inter alia that:

i. Exhibit A attached to the Originating Application dated 7/9/2010, established a Collective Investment Scheme (between the Appellant and each of the 1st to 14th Respondents and those being represented thereof) contemplated by Sections 153(1), 284(1)(f) and 315 of the ISA, as to confer jurisdiction of the Investment and Securities Tribunal.

ii. The action founded on the alleged contracts between the Appellant and each of the 1st to 14th Respondents and all those represented is maintainable in a representative capacity.

Thus, it filed a Notice of Appeal in this Court, which it amended, and the Amended Notice of Appeal contains seven Grounds of Appeal. The first to fourteenth Respondents, who split themselves into two, (1st, 4th, 7th to 14th Respondents and 2nd, 3rd, 5th & 6th Respondents), filed Cross Appeals against the part of the Judgment on jurisdiction.

Briefs were filed and in the main Appeal, the Appellant distilled three Issues for determination from the Grounds of Appeal; that is:

i. Whether Exhibit “A” attached to the Originating Application dated 7/9/2010 established a Collective Investment Scheme/Agreement as contemplated by Sections 153(1), 284(1)(f) and 315 of the Investment and Securities Act [ISA], 2007 as to confer jurisdiction on the Tribunal.

ii. Having regard to the decision of the Court of Appeal in the cases of C. C. B. (Nig.) Plc V. Rose (1998) 4 NWLR (PT. 544) 37 and Bossa V. Julius Berger Plc (2005) ALL FWLR (PT. 290) 1503 at 1518, whether the cause of action founded on the alleged contract between the Appellant and each of the 1st to 14th Respondents as well as all those purportedly represented is maintainable in a representative capacity in the circumstances of the Suit in the instant Appeal.

iii. Whether the Court of Appeal was right when it held that the Appellant deceived the 1st to 14th Respondents into an illegal scheme.

The “1st, 4th, 7th to 14th Respondents”, who will be referred to as the first set of Respondents, also formulated three Issues, as follows —

i. Whether Exhibit “A” attached to the Originating Application dated 7/9/2010 establishes a Collective Investment Scheme between the 1st to 14th Respondents and the Appellant as contemplated by Sections 153(1), 284(1) (f) and 315 of the Investment and Securities Act [ISA] 2007 as to confer jurisdiction on the trial Tribunal.

ii. Whether the cause of action is founded on a collective investment scheme between the Appellant and each of the 1st to 14th Respondents and all those they represented and accordingly maintainable in a representative capacity.

iii. Whether the Court of Appeal was not right when it held that the Appellant deceived the 1st to 14th Respondents into an illegal scheme.

The “2nd 3rd 5th & 6th Respondents”, who will be referred to as the second set of Respondents, also distilled three Issues, as follows:

i. Whether Exhibit “A” attached to the Originating Application dated 7/9/2010 establishes a Collective Investment Scheme between the 1st to 14th Respondent and the Appellant as contemplated by Sections 153(1), 284(1)(f) and 315 of the Investment and Securities Act [ISA] 2007 as to confer jurisdiction on the trial Tribunal.

ii. Whether the Suit against the Appellant by each of the 1st to 14th Respondents and all those they represent is maintainable in a representative capacity.

iii. Whether the Court of Appeal was not right when it held that the Appellant deceived the 1st to 14th Respondents into an illegal scheme.

SEC, fifteenth Respondent, did not file any processes in this Court. CBN, sixteenth Respondent, adopted Appellant’s Issues in its Brief, and I will do same in dealing with this Appeal. Issue No. i., questions the import of Exhibit A in the scheme of things; it reads as follows:

Memorandum of Understanding between NOSPETCO Oil and Gas limited – hereinafter referred to as “NOSPETCO” AND MRS S. A. UMAR – – referred to hereafter as “the JV Partner” WHEREAS:

  1. NOSPETCO Oil and Gas Ltd. is an Oil Service Company which is into the supply and distribution of Industrial Fuels.
  2. The JV Partner is desirous to partner with NOSPETCO for the supply and distribution of Industrial Fuels.
  3. NOSPETCO accepts JV participation in slots of N450, 000 only for JV supply of Industrial Fuels.
  4. The participation could be increased in slots of a minimum of N225, 000 which will be treated on pro rata basis. The JV Partner could however roll over the yield and earn on pro rata as per JV agreement. Note it is hereby agreed as follows:
  5. The JV Partner has provided the sum of N450,000 only for (1) slot. (The sum is hereinafter called “The Partner’s Funds”)
  6. Each slot will yield a return of N40,000 only per month for the Partner, for every full month operating period.
  7. The JV Partner shall provide a bank account into which the yield will be paid.
  8. NOSPETCO shall employ this sum to purchase and supply industrial fuels.
  9. Industrial disputes and production constraints could cause a stoppage in operations. Where this happens, the returns for that period will be prorated. If the situation lingers, the Partner shall be duly informed and the Partner’s Funds refunded.
  10. On demand, JV Partner shall be issued periodic operating reports indicating the status of the JV business.
  11. This understanding could be terminated wholly or partly at the instance of either party upon due notification, the investment must be at least for five months. Where this happens, Partner’s Funds shall be returned within two weeks.
  12. Depending on prevailing operating costs variables, NOSPETCO, the JV services Company, shall be entitled to vary the monthly yield payable on a slot or the value of a slot. Where this happens the JV Investor will be duly informed at least one month before the change is effected.

The Appellant’s contention is that “Exhibit A” is not a conclusive and valid evidence to hold that the alleged relationship between it and each of the Respondents, and others they are said to represent, is that of a Collective Investment Scheme, as contemplated under the ISA; and the Court below is wrong to have held to the contrary. It cited the following authorities on jurisdiction and cause of action:

– Oloruntoba-Oju & Ors V. Abdul-Raheem & Ors (2009) 13 NWLR (Pt. 1157) 83;

– Petrojessica Enterprises Ltd. V. Leventis Technical Co. Ltd. (1992) 5 NWLR (PT. 244) 675 at 693;

– Obi V. INEC (2007) 11 NWLR (PT. 1046) 436 at 482;

– Niger Gate V. Niger State Govt. (2008) All FWLR (PT 406)1938 at 1965; and

– Okorocha V. UBA Plc (2011) I NWLR (PT. 1228) 348 at 373.

It submitted that Exhibit A, a written agreement, is the basis of the Respondents’ cause of action, and it also cited the following on the merits of an agreement in writing, and doctrine of privity of contract that a stranger, who is not a party to a contract, cannot sue on it – – A-G. Fed. V. A.I.C. Ltd. (2000) 4 WRN 96 at 103; (2000) 10 NWRL (Pt. 675) 293 at 311;

See also  Esonu Chukwunyere V. The State (2017) LLJR-SC

– L.S.D.P.C. v. N.L & S. F LTD (1992) 5 WNLR (Pt. 244) 653 at 669 – 670;

– Ilesa L.P.A. V. Olayide (1994) 5 NWLR (PT. 342) 91 at 103;

– Agbareh V. Mimra (2008) ALL FWLR (Pt. 409) 559 at 586.

– Rank Xerox (Nig.) Ltd. V. Centrex (Nig.) Ltd. (1995) 1 NWLR (PT. 374) 703;

– Mobil Prod (Nig.) Unlimited V. Umenweke (2002) 9 NWLR (Pt. 773) 543;

– Oshin & Oshin Ltd. V. Livestock Feed. Ltd. (1997) 2 NWLR (Pt. 486) 162.

It submitted that it is only the agreement in writing that can be used to establish the Parties thereto and other terms of the agreement, as the document, which speaks for itself, is the best evidence; and pointed out that Parties to Exhibit A are itself and “Mrs. S. A. Umar”.

It conceded that a Court can make use of a document properly placed before it, citing Niger Gate V. Niger State Govt. (supra), but citing Udofia V. CAC (1992) 5 NWLR (Pt. 242) 437, it submitted that if such a document is not properly placed before the Court, the Court is enjoined not to rely on it, especially where reliance on it will result in injustice and overreach the other Party; and that the Court below was wrong to have relied on the Application for accelerated hearing and the 1st to 14th Respondents’ Amended Originating Application to jettison the issue of privity of contract that it raised about Exhibit A.

As to the “List of Joint Venture Partners”, attached to the said two Applications, which contains the name of Mrs. Umar, and which the Court below referred to in its Judgment, the Appellant argued that it was wrong to have relied on that List to hold that her name was part of it; that her name being part of the List was raised for the first time in the said Respondents’ Brief filed at the Court of Appeal; that the List was not before the Tribunal and was not considered in its Ruling on the Preliminary Objection that led to the Appeal, thus, the said List constituted a fresh point or evidence for which leave of Court is required, citing Obajimi V. Adedeji (2008) 3 NWLR (Pt. 1073) 1 at 12/13, and Akano V. F.B.N PLC (2004) 8 NWLR (Pt. 875) 318 at 330.

​Furthermore, that the Court below was wrong to hold that the name of Mrs. Umar was contained on the said List attached to the said two Applications “and consequently subsumed the fundamental issue of privity of contract to the representative capacity by which the action was commenced”; and that since the said List of J.V. Partners was not signed and was procured during the pendency of the Suit, it ought not to be relied upon, citing Ojo V. Adejobi (1978) NSCC (Vol. 11) 161, A. G., Abia State V. Agharanya (1999) 6 NWLR (PT. 607) 362, Omega Bank V. O.B.C. Ltd. (2005) ALL FWLR (PT. 249) 1964 at 1993.

It also argued that even if the Court below was right, the fact that Mrs. Umar was being represented by the said Respondents is not a known ground in the law of contract so that her “sample” contract only, Exhibit A, could metamorphose to include strangers to the said contract, citing A-G. Fed. V. A.I.C. Ltd. (supra); and that the said Respondents, not being signatories/parties to Exhibit A, had no locus to file the Suit at the Tribunal, and the Tribunal was wrong to have relied upon Exhibit A to determine their relationship; and the Court below also erred in confirming the Tribunal’s position.

It submitted that Exhibit A was not tendered but attached to the said Respondents’ Application to support their allegation that it lured them into the agreement; that the Court and Parties are not entitled to read into a Record what is not there as they are bound by it – Onwuka V. Ononuju (supra); and there is nothing to support the inference that Exhibit A was attached merely as a “sample”.

It further argued that even if Exhibit A is relevant, it does not qualify as a Collective Investment Scheme, as contemplated under the ISA; that it is a mere Memorandum of Understanding, which as the Court below held in S.F. & P. Ltd. V. NDIC (2012) 10 NWLR (Pt. 1309) 522 at 538, is not the real contract between it and Mrs Umar, therefore, “Exhibit A” is not a Collective Agreement Scheme at all.

​It further submitted that the said Respondents failed to plead that the said investment was done at the Nigerian Capital Market or that any of them is a Capital Market Operator, so as to warrant the application of the provisions of ISA to the transaction in question; that their relationship, even if presumed from Exhibit A, does not qualify as a Collective Investment Scheme, defined in Sections 153 and 315 of ISA, and relied upon by the Tribunal and the Court below, especially when the phrase “Collective Investment Scheme” is never mentioned in the said Respondents’ entire pleadings. Furthermore:

– That Sections 38 & 71 of the Companies and Allied Matters Act [CAMA], authorizes it to execute contracts with individuals for the furtherance of its object clause i.e., doing business in oil and gas, and if the alleged relationship between them is stretched (without conceding) to mean “Collective Investment Scheme”, it would only qualify under ISA as the “Collective Investment authorized by CAMA, therefore, their alleged individual relationship “is a simple contract and nothing more”. That it is, therefore wrong for a Court to read into the Agreement the terms, which the Parties thereto did not agree to – Olatunde V. O. A. U. (1998) 5 NWLR (Pt. 549) 178 at 191 and Agbareh V. Mimra (supra) cited.

– That there is nothing in their pleading, particularly Exhibit A, that may suggest that they expressly agreed or intended to be governed by ISA, as to bring their relationship under the Collective Investment Scheme – Amadi V. Chinda (2009) 10 NWLR (PT. 1148) 107 at 124 cited. Furthermore, that it is not the function of a Court to either make a case/agreement for the Parties or to change their case/agreement – Nika Fishing Co. Ltd. V. Lavina Corp. (2008) ALL FWLR (Pt. 437) 1/25; that the said Respondents, in their entire pleadings and reliefs, did not make any claim/relief on Collective Investment Scheme because the Parties never made such an agreement; thus, the Tribunal and Court below were wrong to have made such a case for the Parties.

It argued that since the subject matter of the Suit did not arise from the administration, management and operation of a Collective Investment Scheme, as contemplated by Sections 13, 38, 54, 152 – 196 of the ISA, the Tribunal cannot, by virtue of Section 284(1)(f) of ISA, have jurisdiction to determine the Suit; rather that by virtue of the unlimited jurisdiction conferred by Section 272 of the Constitution on a State High Court, as confirmed in Onuorah V. Kaduna Refinary (2005) 6 NWLR (Pt. 921) 393, UPS. V. Adeyosoye (2011) 5 NWLR (PT. 1240) 314, and NIMR V. Akin-olugbade (2008) 5 NWLR (PT. 1079) 68, it is only the State High Court that has jurisdiction to determine this action founded on contract, the alleged subject matter of the Suit.

It urged this Court to resolve this issue in its favour by holding that Exhibit A did not establish a collective investment agreement between it and the said Respondents, including those purportedly represented, as contemplated by Sections 153(1), 284(1)(f) and 315 of the ISA, so as to confer jurisdiction on the Tribunal, and that the Court of Appeal was therefore wrong to have held to the contrary.

The first set of Respondents countered that the Appellant’s arguments are “utterly misconceived and misleading”; that Exhibit A must be read together with all the paragraphs of their pleadings; that aside paragraphs vii-xii that it mentioned, paragraphs ii, xii, xiii, xiv, xv, xvi, xvii, xviii, xix, xx to xxx of their Application are also core and indispensable aspects of their cause of action – A- G, Fed. V. Abubakar (2007) 10 NWLR (Pt.1041) 1, Adesokan V. Adegorolu (1997) 3 NWLR (Pt.493) 261; that the Tribunal did not say it arrived at its decision solely on Exhibit A, rather after viewing the nature of the business and the contents of Exhibit A, it found that Parties were involved in what could be called a collective investment scheme, so, the action does not allege breach of contract, rather the core issue is that the continuous withholding of the money belonging to them, by 15th & 16th Respondents, who halted Appellant’s illegal business, be forthwith stopped, and the withheld monies released to them.

Furthermore, that the key reliefs are not against the Appellant per se because the issue of the illegality of its business in which they were innocently involved, has already been decided by the Tribunal in case No: lST/OA/19107: NOSPETCO Oil and Gas Ltd. V. SEC, wherein it held in its Ruling delivered on 3/12/2008 that – “The nature of the business carried on by the Applicant is collective investment scheme which falls within the regulatory framework of the Respondent”; that the decision remains binding, as it has not been appealed against, and the Tribunal had relied on this decision in its Ruling in this case.

​It argued that the issue of privity of contract is not applicable to the scenario at hand, as Exhibit A was attached as a mere sample to show the format and wordings of the document establishing the collective investment arrangement between the Parties, which had been declared illegal by the above decision of the Tribunal; that the issue of privity of contract does not arise when their pleadings are properly juxtaposed and measured against provisions of Sections 153(1), 284(1)(f) and 315 of ISA; that the question of how they will satisfactorily prove the averments in their pleadings is not a matter that can be delved into or commented upon at interlocutory stage, but a matter to be determined at the Tribunal for hearing, citing Nwankwo V. Yar’adua (2010) 12 NWLR (Pt. 1209) 518 at 540, Odon V. Barigha-Amange (No. 2) (2010) 12 NWLR (Pt. 1207) 13 at 28; and that:

Having held that Exhibit A is a mere sample of the Memorandum of Understanding possessed by all of [them] and t