Securities and Exchange Commission V. Osindero Oni & Lasebikan (2008)
LawGlobal-Hub Lead Judgment Report
JIMI OLUKAYODE BADA, J.C.A.
This is an appeal from the Judgment of the Federal High Court, Abuja, in Suit No:FHC/ABJ/270/2003 – OSINDERO ONI & LASEBIKAN VS. SECURITIES AND EXCHANGE COMMISSION delivered on the 2nd day of April, 2004.
Briefly, the facts of the case are that in the year 2000, the National Council on Privatization set up by the Federal Government offered for sale to the public 86,400,000 Ordinary Shares of African Petroleum (AP PLC) held on behalf of the Federal Government of Nigeria by the Nigerian National Petroleum Corporation (NNPC). A year after, Sadiq Petroleum Nig. Ltd, the core investor in the offer alleged that the past management of African Petroleum PLC had not disclosed huge debts owed to creditors to the tune of N22.5 billion which debts were said to have been owed to NNPC, some banks and other financial institutions.
The core investor, Sadiq Petroleum Nig. Ltd alleged that the said indebtedness was not disclosed in the prospectus used for the privatization of the Federal Government’s Shares in AP LTD. The prospectus which contained the financial statements of the AP PLC was based, among other things, on the audit reports submitted by the Respondent as the external auditors to AP Plc.
As a result of the above allegations, the Appellant in exercise of its regulatory functions set up a committee to conduct preliminary investigation into the allegation levelled against the Respondent by Sadiq Petroleum PLC that the Respondent was negligent in the audit of the books of account of the AP PLC. The committee in its report indicted the Respondent and found inter alia that:-
“there was obvious lack of depth in the auditing of the company’s book and affairs by the firm of Osindero Oni & Lasebikan i.e. the Respondent.”
The Respondent was later served with an Application No: APC/22/2002 wherein the Appellant summoned the Respondent to appear before its Administrative Proceedings Committee to explain why disciplinary action should not be taken against it for its role in the transaction in issue.
The Respondent proceeded to Lower Court seeking “an Order of Prohibition, prohibiting the Administrative Proceedings Committee of the Appellant from hearing any evidence, adjudicating and/or entertaining the Application No: APC/22/2002 in so far as it relates to the Respondent and pending before the Appellant”.
The Learned Trial Judge after the oral argument of both counsel gave judgment in favour of the Respondent.
The Appellants dissatisfied with the said judgment now appealed to this Court.
The learned Senior Counsel for the Appellants formulated two issues for determination as follows:-
“i. In the face of the express denials in the Appellant’s Counter Affidavit, were there some other materials before the lower Court to support the Court findings-
(a) That the APC as constituted by the Appellant was conducting or intending to conduct a criminal trial of the Respondent; and
(b)That the Appellant, through the APC, was constituting itself into a complainant/accuser, prosecutor, and judge in the proceedings, the subject matter of this Appeal?
ii. Was the Appellant through the APC, in contravention of section 36 of the Constitution of Nigeria 1999 OR any other provisions of the said Constitution, howsoever, in the proceedings, the subject matter of this Appeal?”
The Learned Counsel for the Respondent on the other hand formulated three issues for determination as follows:-
“1. Whether this appeal ought to be dismissed in view of the fact that the Appellant is yet to file its brief of argument in accordance with Order 6 Rule 2 of the Court of Appeal Rules 2002.
- Whether in the exercise of its regulatory power, the Appellant can prefer a criminal charge (Exhibit C6) against the Respondent.
- Whether the Learned Trial Judge was right in the light of the affidavit and documentary evidence before it, in holding that the Appellant through its Administrative Proceedings Committee has breached the Respondent’s constitutional right of fair hearing enshrined in section 36 of the 1999 Constitution.”
At the hearing, learned Senior Counsel for the Appellant adopted and relied on both the Appellant’s Brief and Appellant’s Reply Brief of Argument in urging that the appeal be allowed. The learned Counsel for the Respondent in his own case adopted and relied on the Respondent’s Amended Brief of Argument and urged that the appeal be dismissed.
On Respondent’s Issue 1, it was conceded by Counsel for the Respondent that the said issue was not formulated from any of the grounds of Appeal.
The position of the law is that an issue formulated in an appeal must relate, arise or derive from a competent ground of Appeal before it could be competent for determination in the appeal. Where an issue does not arise from or relate to the grounds of appeal, it becomes incompetent and liable to be struck out.
See – Aja VS. Okoro (1991) 9-10 SC Page 1 at 11.
Animashaun VS. U.C.H. (1996) 10 NWLR Part 476 Page 65.
Dan-Jumbo vs. Dan-Jumbo (1991) 11 NWLR Part 67 Page 445.
Iconoha vs. NIPOST (2003) 8 NWLR Part 822 Page 308.
Kokoro Owo vs. Lagos State Government (2001) 11 NWLR Part 723 at Page 237.
In view of the foregoing issue No:1 formulated by Counsel for the Respondent is hereby struck out.
The remaining Issues formulated by Counsel on behalf of the parties are similar, however, the issues as set out by Counsel for the Respondent are considered relevant and apt to determine this appeal.
Issue No 2.
Whether in the exercise of its regulatory powers, the Appellant can prefer a criminal charge (Exhibit C6) against the Respondent.
Learned Senior Counsel for the Appellant referred to the Judgment of the lower Court and he submitted that the findings of the Court were perverse. He referred to the Appellant’s Counter Affidavit, In particular paragraph 3ii to 3ix. He went further that by the deposition in the Counter Affidavit the Appellants expressly denied the allegations of being the complainant in the Administrative Proceedings Committee (APC) and of actually trying or intending to try the Respondent of Criminal Charges during and through the APC proceedings.
He also submitted that Section 63 of Investment and Securities Act 1999 expressly limits its criminal liability to officers of AP PLC and no other person.
Learned Senior Counsel also referred to Exhibit “C6” i.e. the charge or indictment sheet and submitted that no matter and irrespective of how inelegantly or misleadingly Exhibit “C6” might have been drafted the Court ought to have believed the disavowal by the Appellant of a criminal trial. He also referred to Exhibit “H1” i.e. the press release by the Appellant in which the Appellant reported on its interim finding. And Exhibit “H3” i.e. the invitation letter issued by the Appellant’s Administrative Proceedings Committee (APC) to the Respondent in respect of the APC’s scheduled hearing.
Learned Senior Counsel submitted that nothing in Exhibit “H3” suggested that the Appellant’s APC was in the process of criminally trying the Respondent.
He finally submitted that the finding of the lower Court was perverse and ought to be overturned because it was not supported by any material before the Court.
He relied on the following cases:-
Odiba vs. Azege (1998) 9NWLR Part 566 Page 370 at 380.
Ikono Local Government vs. De Beacon Finance & Securities Ltd (2002) 4 NWLR Part 756 Page 128 at 143.
Okpaleke vs. National Electric Power Authority (2003) 14 NWLR Part 840 Page 383 at 409.
The Learned Counsel for the Respondent referred to Section 62 (1) of The Investment and Securities Act No. 45 of 1999 which he stated creates a civil liability for untrue statement contained in the prospectus, He went further that Section 63 (1) of the Act creates a criminal offence for untrue statement contained in the prospectus.
He referred to paragraph 12 of the affidavit in support of the Respondent’s application for prohibition, the Respondent deposed to the fact that the Appellant served on the Respondent Exhibit H3 i.e. Application No. APC/22/2002 which invited the Respondent to appear before the Appellant’s Administrative Proceedings Committee to explain why disciplinary action should not be taken against the Respondent for its negligence in audit of African Petroleum PLC.
He also referred to paragraph 4 of the further affidavit filed by the Respondent which he said was not controverted by the Appellant.
Learned Counsel submitted that Exhibit “C6” has all the ingredients of a criminal charge. He referred to the definition of a charge as contained in Section 2, subsection 1 of the Criminal Procedure Act Cap. 41 Laws of the Federation 2004. He went further that the particulars of what a charge shall contain are stated in Section 151 of Criminal Procedure Act as follows:-
(i) The offence with which the accused is charged.
(ii) The Section of the written law against which the offence is said to have been committed.
He submitted further that all the above particulars of a formal charge are present in Exhibit “C6”. And also that the allegation of issuing and authorizing the issuance of prospectus containing untrue statement leveled against the Respondent in Exhibit “C6” being a serious criminal offence under Sections 62 and 63 of the Investment and Securities Act, the Appellant or its Administrative Proceedings Committee has no judicial or quasi judicial powers under the Investment and Securities Act (ISA) to try the said criminal offence. He also referred to Section 235 of the ISA.
He finally submitted that the preferment of Exhibit “C6” by the Appellant against the Respondent negates the depositions of the Appellant in paragraph 3 (vi) and (vii) of its Counter Affidavit.
The Learned Senior Counsel for the Appellant in his reply brief reiterated the views earlier canvassed in the Appellant’s Brief and he urged that the appeal be allowed and Judgment of the lower Court be set aside.
In this appeal the lower Court held among others that:-
“Since the law has not empowered the Commission to try any degree of crime, a committee of the Commission such as the Administrative Proceedings Committee cannot try crime.
The basic responsibility given to the Commission in its task of regulating the securities market is that of investigation.
Even in matters of investigation the Commission has no free reins to delve into issues bordering on criminality; it is not open to it to draft an indictment and commit its Administrative Proceedings Committee to determine it as it was doing in the instant case. In the instant case, the complaint of the Applicant is that he has been robbed of his right of fair hearing because the Respondent is the accuser and the judge over his matter. I must say here that from the fact available in this case there is no pretence about the fact that the Respondent is the investigator, the prosecutor and the Judge over the allegation made against the Applicant… ”
Before arriving at the above conclusions the lower Court considered the affidavit in support of the Originating Summons, the further Affidavit and the Counter Affidavit of the Appellant. In order to get to the root of the controversy between the parties it would be necessary to have a critical look at the said affidavit in support, further affidavit and the counter affidavit. Relevant paragraphs are reproduced as follows:-
Affidavit in support of the Originating Summons:-
“(5) A year thereafter, Sadiq Petroleum Nigeria Limited, the core investor in the offer alleged that the past managements of African Petroleum Plc had not disclosed huge debts owed by AP PLC to creditors to the tune of N22.5 billion which debts were said to have been owed to the NNPC, some banks and other financial institutions.
(6) The core investor, Sadiq Petroleum Nigeria Ltd alleged that the said indebtedness was not disclosed in the prospectus used for the privatization of Federal Government’s shares in African Petroleum Plc.
(7) The prospectus which contained the financial statements of the AP PLC was based among others on the audit reports prepared by the Applicant as external auditors to AP PLC.
As a result thereof the Securities and Exchange Commission said that Sadiq Petroleum Ltd alleged that the auditors of AP PLC the Applicant herein was negligent in the auditing of the company.
(8) Following the above allegations the Respondent in exercise of its regulatory functions set up a committee to conduct preliminary investigation into the allegations, which committee in its report to the Respondent indicted the Applicant and found inter alia that “there was obvious lack of depth in the auditing of the company’s books and affairs by the firm of Osindero Oni & Lasebikan.”
(9) The report of the Committee was published in the Press Release of the Respondent of September 4th now attached hereto and marked Exhibit “H1”.
(10) The Applicant was never invited to appear before the aforesaid Committee for the purpose of defending itself before the decision contained in Exhibit H1 above was reached.
(11) The Applicant thereafter wrote a letter dated September 9 2002 to the Respondent wherein it stated the facts in the preceding paragraph and enjoined the Respondent to retract the publication as same is prejudicial to its rights to fair hearing. Now produced and shown to me marked Exhibit
“H2″ is a copy of the letter.
(12) The Applicant was therefore surprised to have received a notice from the Respondent inviting the Applicant to appear before the Administrative Proceedings Committee of the Respondent on June 10, 2003 sitting at Respondent/Commission Boardroom. Central Business District Abuja to explain why disciplinary action should not be taken against it for its negligence in the auditing of the African Petroleum Plc. Now produced and shown to me marked Exhibit H3 is a copy of the Notice of Hearing and Application.
(13) In the Application No. APC/22/2002 the Applicant discovered that the Respondent herein is the Complainant while the Application is pending before the Administrative Proceedings Committee of the Respondent which application violates one of the twin pillars of fair hearing that one can not be a judge in his own cause.”
(See Pages 31 to 32 of the Record)
Further Affidavit
“(4) I am informed by O. A. Orewale Esq. solicitor to the Applicant and I verily believe him as follows:-
(i) On 10th June, 2003 he represented the Applicant in the proceedings conducted by the Administrative Proceedings Committee of the Respondent.
(ii) The Administrative Proceedings Committee Chaired by Director General of the Respondent preferred a charge against the Applicant which read;
“That you Osindero Oni & Lasebikan (Auditors) as experts and parties to the issue, signed, consented to and authorized the issue, of the said prospectus containing untrue statement to wit: that the total indebtedness of the company as at 3rd June, 1999 was N10.2 Billion whereas subsequent revelation indicated otherwise and thereby contravened section 62 (3) and 63 of investment and securities Act of 1999″
Now produced and shown to me marked exhibit C6 is a copy of the charge.
(iii) He there and then protested to the Committee that it has no power whatsoever under the Investment and Securities Act to try the criminal allegations contained on the charge sheet but the committee ignored his protest and proceeded to hear the charge.”
(See Pages 50 to 51 of the Record)
Counter Affidavit
“3(i) Paragraphs 8, 10, 12, 13, and 14 of the Affidavit in Support of the Originating Motions sworn to on 11th June, 2003, are untrue.
(ii) Sequel to a complaint lodged to the Respondent by Sadiq Petroleum Nigeria Limited, in regard to concealment of AP Plc’s debt during the year 2000 privatization exercise, the Respondent instituted a preliminary inquiry into the complaint
(iii) The Respondent subsequently found that there is need for principal actors in the said privatization exercise, including the Applicant to explain their specific roles in the transaction.
(Iv) Further to paragraph (3)iii above, the Respondent invited the Applicant, among others to the Respondent’s Administrative Proceedings Committee to explain its role, as the external auditors to AP Plc in the privatization exercise.
(v) The setting up of the Respondent’s Administrative Proceedings Committee was solely based upon the complaints received from Sadiq Petroleum Nigeria Limited.
(vi) The Respondent’s Administrative Proceedings Committee is purely an investigative proceedings and whichever criminal evidence obtained in the course of the proceedings are always forwarded to the prosecuting agencies for possible prosecution.
(vii) The Respondent’s Administrative Proceedings Committee has never indicted, convicted or imprisoned anyone, as it has no such powers.
(viii) The Respondent’s Administrative Proceedings Committee has always been giving all parties before it, opportunity of being heard and represented by Counsel of their choice.
(ix) The setting up and activities of the Respondent’s Administrative Proceedings Committee was pursuant to its statutory role as the sole regulator of the capital market.”
(See Pages 63 to 64 of the Record)
A careful examination of the paragraphs of the affidavit in support, further affidavit and counter affidavit showed that the Appellant expressly denied the allegation of being the complainant before the Administrative Proceedings Committee, it also denied actually trying of intending to try the Respondent of criminal charges during and through the APC Proceedings.
It was submitted on behalf of the Appellants that Exhibits “CB”, “H1” and “H3′ relied upon do not support the lower Court’s findings.
Exhibit “C6” is according to Respondent’s Counsel the charge or indictment sheet before the Administrative Proceedings Committee. Under Section 63 (1) where a prospectus includes any untrue statement, any officer who authorized the issue of the prospectus commits an offence and is liable:-
(a) On conviction of an indictment, to a fine of not less than N100,000.00 or to Imprisonment for a term not exceeding three years or to both such fine and Imprisonment; or
(b) On summary conviction, to a fine of not less than N50,000.00 or to imprisonment for a term not exceeding three months or to both such fine and imprisonment, unless he proves either that the statement was immaterial or that he had reasonable ground to believe and did, up to the time of the issue of the prospectus, believe that the statement was true.
The only person who could be criminally liable pursuant to Section 63 (1) of the (ISA) are the officers of AP PLC who authorized the issue of the prospectus. By virtue of Section 63 (2) of the Investment and Securities Act, the Respondents, not being an officer of AP PLC, is not caught by the provisions of Section 63 (1) of the Investment and Securities Act No. 45 of 1999.
If the lower Court had critically examined Exhibit “C6” vis-a-vis the provisions of Section 63 (1) and (2) of the Act it would have given plain and ordinary meaning to the words of the statute and it would have arrived at a different decision.
See:- Owena Bank Nig. PLC vs. Nigerian Stock Exchange Ltd (In Re Securities and Exchange Commission (1997) 7 SCNJ Page 160. Texaco Panama Inc. vs. Shell Petroleum Development Corporation Nig. Ltd (2002) 2 SCNJ Page 102.
Although Exhibit “C6” might have been inelegantly drafted but in view of the disavowal by the Appellant of a criminal trial in the Counter Affidavit and the position of the law on the matter, the lower Court should not have arrived at the conclusion that the Appellant is the Prosecutor and the Judge over the allegation made by the Respondent.
The Lower Court also relied extensively on Exhibits “H1” and “H3” in arriving at its decision but a critical look at Exhibit “H1” showed that it was a press release by the Appellant in which it reported on its interim findings to the effect that there was obvious lack of depth in the auditing of the company’s books and affairs by the firm of Osindero, Oni & Lasebikan & Co and indicated that the Commission has commenced the next stage of investigation into the matter which would involve full scale enquiries into the previous management’s financial transaction and the auditors activities.
There is nothing in Exhibit “H1” which suggested that the Appellant was in the process of criminally trying the Respondent.
Also Exhibit “H3” is one of the Exhibits relied upon by the lower Court in reaching its decision. In fact Exhibit “H3” is an invitation letter issued by the Appellant’s Administrative Proceedings Committee to the Respondent in respect of the APC’s scheduled hearing fixed for 10/6/2003.
As I said earlier in respect of Exhibit “H1” that there is nothing in it that suggests criminal trial, also there is nothing in Exhibit “H3” that suggested that the Appellant’s Administrative Proceedings Committee was in the process of criminally trying the Respondent and Exhibit “H3” does not qualify as a criminal summons.
In view of the foregoing, it is my view that the Appellant did not prefer a criminal charge against the Respondent and it cannot in law prefer a criminal charge in the exercise of its statutory powers.
This issue is therefore resolved in favour of the Appellant and against the Respondent.
Issue 3
Whether the Learned Trial Judge was right in the light of the affidavit and documentary evidence before it, in holding that the Appellant through its Administrative Proceedings Committee has breached the Respondent’s Constitutional Right of Fair hearing enshrined in Section 36 of the 1999 Constitution.
The Learned Senior Counsel for the Appellant referred to the Judgment of the lower Court where it was held among others that … there is no pretence about the fact that the Respondent is the Investigator, the Prosecutor and the Judge over the allegation made against the Applicant. ………. Emphasis supplied.
He submitted that the APC proceedings in this case, did not, cannot and does not infringe the Constitutional right of the Respondent to a fair hearing. He relied on Section 36 (1) and (2) of the 1999 Constitution to buttress his submission on exception to the general right to a fair hearing. He went further in his submission that the Administrative Proceedings Committee passed the fair hearing test of the Constitution.
He finally submitted that the lower Court was in grave error in holding that the Appellant’s Administrative Proceedings Committee (APC) that was convened to investigate, amongst others, the Respondent was in breach of the Respondent’s Constitutional right to fair hearing.
The Learned Counsel for the Respondent in his own submission contended that the assumption of jurisdiction by the Administrative Proceedings Committee of the Appellant, whose functions are purely investigative, to hear and determine Exhibits “H3” and “C6” was not only ultra vires the power of the Committee or the Appellant but violates the fundamental right of the Respondent to fair hearing enshrined in Section 36 (1) (4) of the 1999 Constitution.
He relied on the following cases:-
Abia State University vs. Anyaibe (1996) 3 NWLR Part 439 Page 646 at 665.
Okike VS.LPDC (2005) 15 NWLR Part 949 Page 471 at 512.
Garba vs. University of Maiduguri (1986) 1 NWLR Part 18 Page 550 at 584.
Learned Counsel referred to Exhibit “H3” Re. Application No: APC/22/2002
which invited the Respondent to appear before the Appellant’s Administrative Proceedings Committee 10 explain why disciplinary action should not be taken against the Respondent for negligence in auditing books of account of the African Petroleum PLC. And that on 10/6/2003 the Respondent was also served with a charge Exhibit “C6”.
Learned Counsel for the Respondent submitted that the legal effect of Exhibits “H3” and “C6” is that the Appellant has become a Judge in its own course.
He relied on the following cases:-
U.N.T.H.B vs. Nnoli (1994) 8 NWLR Part 363 Page 376 at 402 Paragraphs F-G.
Garba vs. University of Maiduguri (Supra) Page 581.
Kenon vs. Tekan (2001) 14 NWLR Part 732 Page 12 at 33 – 34.
Akinwale vs. Nigerian Army (2001) 16 NWLR Part 738 Page 109 at 122 Paragraphs A-C.
LPDC vs. Gani Fawehinmi (1985) 2 NWLR Part 7 Page 300 at 346.
Mohammed VS. Kano Native Authority (1968) 1 All NLR Page 424 at 426.
Metropolitan Properties Co. (F.G. C.) Ltd vs. Lannon & Others (1968) 3 All E.R. Page 304 at 310.
Abiola vs. Federal Republic of Nigeria (1995) 7 NWLR Part 405 Pages 14-15.
Ogundoyin vs. Adeyemi (2001) 7 S.C. Part 11 Page 98 at 110.
Bamaiyi v. A. G. Federation(2000) 6 NWLR Part 661 at 42 at 450.
Williams v. Dawodu (1988) 4 NWLR Part 87 at Page 189 at Page 217.
The Learned Counsel for the Respondent also submitted that an order of prohibition will lie where the inferior tribunal acts in contravention of some fundamental principles of justice.
M. Okupe VS. Federal Board of Internal Revenue (1974) NSCC Page 200 at 209.
Finally he urged that this appeal be dismissed.
It would be recalled that the issue of construed criminal trial of the Respondent by the Appellant was earlier considered under Issue NO.2, I shall adopt my reasoning and conclusion on that issue in the determination of the present issue as far as criminal of the Respondent is concerned.
There is no gainsaying in the fact that it was acknowledged by the lower Court that the Appellant was established by the Investments and Securities Act No. 45 of 1999. Under this Act, the Appellant is given inter alia the power to regulate investments and securities business in Nigeria. Specifically under Section 8(u), (w) and (y) the Appellant was endowed with the power to prevent fraudulent and unfair trade practices relating to the securities industry, disqualify unfit individuals from being employed anywhere in the securities industry, and perform such other function and exercise such other powers not inconsistent with this Act as are necessary or expedient for giving full effect to provisions of the Act.
These powers were given to the Appellant by the Act to ensure the integrity of the securities market in Nigeria.This case which is on appeal before this Court originated from the allegation of Sadiq Petroleum Nig. Ltd, the core investor in the offer for sale to the public of 86,400,000 Ordinary Shares of African Petroleum (AP PLC) held behalf of the Federal Government of Nigeria by the Nigerian National Petroleum Corporation (NNPC). The allegation was that the past management of African Petroleum Plc had not disclosed huge debts owed to creditors to the tune of N22.5 billion which debt were said to have been owed to the NNPC, some banks and other financial institutions. It was further alleged that the said indebtedness was not disclosed in the prospectus used for the privatization of the Federal Government’s Shares in AP PLC.
The Appellant in exercise of its regulatory functions set up a committee to conduct preliminary investigation into the allegation levelled against the Respondent.
After the committee’s report the Appellant invited the Respondent to appear before its Administrative Proceedings Committee. The Respondent therefore instituted this action in year 2003 to prohibit the Administrative Proceedings Committee of the Appellant from hearing any evidence, adjudicating or entertaining the Application No. APC/22/2002 in so far as it relates to the Applicant i.e. the Respondent.
This was as far back as 9th day of June, 2003.
I agree with the submissions of Learned Senior Counsel for the Appellant that the Administrative Proceedings Committee Proceedings in this case did not, cannot and does not infringe on the constitutional right of the Respondent to a fair hearing. And by virtue of Section 36 (1) & (2) (a) & (b) of the 1999 Constitution there are exceptions to the general right of fair hearing.
I am also of the view that Exhibits “H1”, “H3”, and “C6” earlier considered in this Judgment provided for the Respondent to make representation to the administering authority i.e. the Appellant through its Administrative Proceedings Committee before the authority takes the decision which will affect the Respondent.
Section 236 (1) of the Act stipulates that a person aggrieved by any decision of the Commission under this Decree now Act, may institute an action in the Tribunal or appeal against such decision within the period stipulated under this Decree now Act. The Tribunal referred to is the Investment and Securities Tribunal that is created pursuant to Section 224 (1) of the Act whose competence according to Section 234 (1) of the Act extends to adjudication on disputes and controversies arising under this Decree and rules and regulations made thereunder.
In view of that section, it means that the investigative and disciplinary determinations by the Appellant are not final and conclusive. They are still subject to further review at the instance of an aggrieved person by the Tribunal. And the determination by the Tribunal is still subject to appeal by an aggrieved party to the Court of Appeal pursuant to Section 243 (1) of the Investment and Securities Act No. 45 of 1999.
It is sad that in the year 2008 the Appellant is yet to carry out its statutory functions due to the fact that the Respondent rushed to the Court without putting the interest of the other parties into consideration.
It is clear to both parties in this appeal that the Capital Market is a place where people buy securities such as shares, debentures, and bonds. The purchaser in reaching his decision usually rely on information about the company supplied by the directors of the company and verified by professionals such as auditors, the issuing house, stockbroker, trustee, solicitor to the company and solicitor to the offer.
It is therefore imperative that the information supplied to the investing public is true and accurate and that abuse and fraud in the system be prevented. Consequently, regulations has played important role in maintaining the integrity of the market.
In view of the foregoing, it is my view that the lower Court was in grave error in holding that the Appellant’s Administrative Proceedings Committee that was convened to investigate, among others the Respondent, was in breach of the Respondent’s Constitutional Right to fair hearing.
This issue is therefore resolved in favour of the Appellant and against the Respondent.
On the whole, it is my view that the findings of the lower Court was not supported by the material evidence before the Court, the findings are therefore perverse.
In Ikono Local Government vs. De Beacon Finance and Securities Ltd (supra) particularly on Page 143, Edozie JCA (as he then was) stated as follows in a concurring judgment in regard to perverse judgments:-
“In the case of Odiba vs. Azege (supra) Page 370 at 380, it was held that a perverse decision is one which ignores the facts or evidence and when considered as a whole amounts to a miscarriage of justice.”
Also in Okpaleke vs. National Electric Power Authority (supra) at Page 410 – 411 Ogunbiyi JCA stated that:-
In the authority of Onuchukwu VS. The State under reference supra, the Court of Appeal held that:- It is settled law that where a trial Judge fails to advert his mind to evidence on record, the Court of Appeal is entitled to examine the evidence and make its own assessment provided that such exercise does not call for making decision on the witness credibility. ”
Consequently, in view of my finding earlier that the Judgment of the lower Court is perverse after considering the evidence and the Judgment, it is my view that the Judgment ought to be set aside and it is hereby set aside.
In its place, the Originating Summons for an Order of Prohibition prohibiting the Administrative Proceedings Committee of the Securities and Exchange Commission from hearing any evidence, adjudicating and entertaining the Application No. APC/22/2002 in so far as it relates to the Respondent and pending before the Appellant is hereby dismissed.
The Appellant is entitled to the costs of this Appeal which is fixed at N40,000.00 (Forty Thousand Naira) against the Respondent.
Other Citations: (2008)LCN/3012(CA)
