1. INTERNATIONAL STANDARDS SECURITIES LTD
2. MR. LERE M. AYANWOLA
ELIPET NIGERIA LIMITED
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA: The Respondent as Claimant at the lower court in Suit No LD/2912/99 filed an action against the Appellants vide a writ of summons and statement of claim dated and filed 5th October 1999, seeking for the following reliefs:
1. Delivery up to the Plaintiff of 7,159,908 units of UAC of Nigeria Pic shares and all bonuses issued on the aforesaid shares since 1996.
2. An account of all dividends received or payable on the aforesaid 7,159,908 UAC Nigeria Plc ordinary shares (and on any bonuses issued thereon) from 1995 to date.
3. An order directing the defendants to pay over to the Plaintiff the sum ascertained to be due as dividends on the aforesaid account with interest at the rate of 21% per annum from April 16th 1995 until payment.
4. N10,000,000.00 (Ten Million Naira) as general damages for conversion, conspiracy and fraud.
Upon service of the writ of summons on the Appellants, the Appellants filed their amended statement of defence dated and filed 19th January 2006 as well as notice of preliminary objection dated and filed 10th April 2007 challenging the jurisdiction of the court to try the matter. The Respondent filed its written address in opposition to the notice of preliminary objection on the 23rd April, 2007 but dated 18th April 2007. Further to the exchange of processes, Defendants filed their reply on point of law to the Claimant's written address; it was dated 15th May, 2007 and filed 18th May, 2007. On the 29th February, 2008, the learned trial judge of the court below, Oyefeso, J. delivered her ruling dismissing the preliminary objection and assumed jurisdiction to entertain the matter. Aggrieved with the aforementioned ruling, the Appellants filed a Notice of Appeal dated 10th March, 2008 and filed on 11th March, 2008 consisting of four grounds.
Appellants Brief of argument was settled by Dike Nyema, Esq. of Messrs Kola Awodein & Co. Same was dated 18th May, 2009 and file 19/05/2009 but deemed properly filed on 22/02/2010. The Respondent's brief was settled by Robert Emukpoeruo Esq. Same was dated and filed on 22nd May, 2010. Appellants' Reply Brief was settled by Tolulope Ijadimilewa of Kola Awodein & Co. It is dated and filed on 2nd of July, 2010 but deemed on 14/4/2011. In the Appellants' brief, two questions were formulated as calling for determination of this appeal as follows:
"1. Whether the learned trial judge was right when she held that the Investments and Securities Act seeks to oust the jurisdiction of the State High Court donated to it by Constitution, and therefore inconsistent with the Constitution 2. Whether the learned trial judge was right to dismiss the Appellants9 Preliminary Objection and therefore assumed jurisdiction to entertain the matter."
The Respondent also distilled two issues for determination thus:
"1. Whether the jurisdiction conferred on the Lagos State High Court by the 1999 Constitution is excluded by or and subject to the provisions of the Investments and Securities Act.
2. Whether the Lagos State High Court is precluded from hearing the Respondent's claims, for the torts of conspiracy, conversion and fraud, being claims which arises from the provisions of the Investments and Securities Act, which purports to exclude any civil court from adjudicating on any matter arising from the provisions of the Act."
The issues formulated by the respective counsel on behalf of the parties in this appeal overlap each other; I shall therefore adopt the two issues distilled by the Appellants in the determination of this appeal. However, the two issues will be taken together.
Appellants' Counsel in his brief contended that the jurisdiction of the State High Court is limited. He quoted section 272 of the constitution which bestowed jurisdiction on the High Court and gave the meaning of the phrase "subject to" in the letter of TUKUR v. GOVERNMENT OF GONGOLA STATE  4 NWLR (PT. 117) 577 that the jurisdiction conferred on the State High Court is controlled by other provisions of the Constitution.
He also relied on LSDPC v. FOREIGN FINANCE CORPORATION  1 NWLR (PT. 50) 461; ACQUA LTD. v. ONDO STATE SPORTS COUNCIL  10-11 SCNJ 57. Counsel submitted that section 272 is not only subject to section 251 but also to other provisions of the Constitution as sections 4(2) and 6(5) where the National Assembly is by implication empowered to establish the Investments and Securities Tribunal. Learned counsel also submitted that the National Assembly under section 6 (5) (j) has power to establish other courts as may be authorised by law. He relied further on ADAH v. NYSC  13 NWLR (PT. 891) 639 @ 648.
Counsel stated that the jurisdiction of the Investments and Securities Tribunal is derived from the Constitution, furthermore section 242 of Investments and Securities Act Cap 124 was enacted pursuant to the powers granted by the Constitution and this power the National Assembly is sacrosanct. He stated that the establishment under sections 4(2) and 6 (5) (j) cannot be held to be inconsistent with the constitution. Counsel relied on OKIKE v. LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE  3-4 SC 49 and concluded that the trial court failed to consider it. He stated that the Okike's case (supra) as well as by combined effect of sections 4 (2) and 6 (5) of the constitution, items 12 and 68 of part I to the first schedule and paragraphs 2 (a) and (b) of part III to the second schedule of the Constitution the National Assembly has the power to legislate on capital issues and capital market.
On the whole of this, he contended that there is no question properly so called of the issue of ouster of jurisdiction of the State High Court since the Investments and Security Act was enacted by the National Assembly pursuant to powers conferred it. He stated through the case of AGWUNA v. A.G. FEDERATION  5 NWLR (PT. 396) 418 @ 437, paras C-D that if without conceding the Investments and Security Act ousts the jurisdiction of the State High Court, the court shall comply with the ouster clause. He further cited OSADEBAY v. A.G. BENDEL STATE  1 NWLR (PT. 169) 533 and submitted that issue one ought to be answered in the negative.
On issue two, learned counsel to the Appellants stated that it is the case before the court that clothes the court with jurisdiction having regard to the plaintiffs claim. He referred to the Supreme Court in ELABANJO v. DAWODU  15 NWLR (PT. 1001) 76 @ 151; TUKUR v. GOVERNMENT OF GONGOLA STATE (supra). Counsel submitted that there is no dispute about the fact that the action leading to this appeal arose from an alleged dispute between the 1st Appellant (a stock broker) acting through the 2nd Appellant in respect of the mandate for the purchase of shares for the Respondent. Counsel stated that the Investments and Securities Tribunal was established vide section 224 of the Investments and Securities Act, Cap 124 LFN. He contended that section 234 of the Act provides jurisdiction for the Tribunal while section 30 of the Act defines a capital market operator.
Learned counsel also referred to Rules 181 and 182 (3) of the Securities and Exchange (sic) Rules and Regulations that it makes provisions for the regulation of stock brokerage operation. He stated that from the averments in the statement of claims, the dispute in this appeal is based on the dispute between a stock broker and his client. He emphasised on the provisions of section 242 of the Act to state that the dispute is within the exclusive jurisdiction of Investments and Securities Tribunal to which the trial court has no jurisdiction to entertain. He stated further that where a court has no jurisdiction to hear and determine an issue before it, it will be an affront for the court to assume jurisdiction over such matter.
Counsel to the Appellants finally submitted that the triad court was wrong to have dismissed the preliminary objection and assumed jurisdiction. He urged this court to hold that the subject matter falls within the exclusive jurisdiction of the Investments and Securities Tribunal which robs the State High Court of jurisdiction.
The Respondent through its counsel contended that the High Court of Lagos State is a creation of the Constitution by virtue of sections 6 (2) (3) and (5); 270(1). He stated that it is the provisions of subsection (4) (a) of section 6 that the Appellants relied on in arguing that the National Assembly can establish a court with exclusive jurisdiction over a matter which ordinarily falls under the general jurisdiction of the State High Court. Respondent's counsel stated further that the only court that can be created by the National Assembly or any State House of Assembly must be subordinate to the State High Court and not compete with same. He contended that section 272 (1) of the Constitution vests general jurisdiction on the State High Court subject to section 251, that the jurisdiction of the State High Court is unlimited and argued that the interpretation of the phrase "and other provisions of the Constitution" in section 272 (1) must follow the ejusdem generis rule. Counsel compared the section with sections 285 and 239 which confer exclusive jurisdiction on the election tribunal to determine whether any person was validly elected to the office of Governor or to the House of Assembly or the National Assembly, President or Vice President. He relied on FED. REP. OF NIGERIA v. IFEGWU  5 SC 252 @ 282-283; OJUKWU v. OBASANJO  7 SC (PT. 1) 117 @ 156 -157 to bolster his argument on ejusdem generis rule. Relying on the above case, he stated that section 6 (4)(a) of the Constitution is no part of the provisions of the Constitution that is ejusdem generis with section 251 of the Constitution. He contended that the jurisdiction conferred on State High Court by section 272 (1) of the Constitution cannot be subject to the exercise of any power to create subordinate courts under section 6(4)(a).
Counsel listed sections 233, 285 and 239 of the Constitution to be in ejusdem generis with section 251. He stated that the subject matter of this appeal is an action for torts of conversion, conspiracy and fraud which falls within the general jurisdiction of the state high court as provided under section 272 (1). In his further argument, counsel contended that by virtue of section 315 (4) (b) of the Constitution, the Investments and Securities Act is an existing law passed as Decree No. 45 of 1999 which came into force on 26th May, 1999 which under section 315 (1) must conform with the provisions of the Constitution. Counsel submitted that the Investments and Securities Act is invalid, null and void and of no effect whatsoever.
Respondent's counsel argued further the OKIKE v. LPDC (supra) that was cited by the Appellants does not support their case, but cited CLEMENT v. IWUANYANWU  4 SC (PT. II) 89 at 97-98; ALHAJI KARIMU ADISA v. EMMANUEL OYINWOLA  10 NWLR (PT. 674) 116 at 174 to contend that no jurisdiction of the court is oust unless it is expressly shown to be so in the legislation. Learned Counsel submitted on what he termed "judicial authorities directly in point" on historical perspective in section 7 of the then Federal Revenue Court Decree No. 13 of 1973 which vested exclusive jurisdiction in the Federal High Court in respect of matters listed under section 7 of the Decree but which was successfully challenged as being inconsistent with the then unlimited jurisdiction of the State High Court under section 236 (1) of the 1979 Constitution. He relied on JAMMAL STEEL STRUCTURES LTD. v. AFRICAN CONTINENTAL BANK LTD.  1 ALL NLR (PT. 2) 208; ISHOLA v. AJIBOYE  6 NWLR (PT. 352) 506 at 555 paras A-H.
Learned counsel for the Respondent argued further relying on A.G. OF OYO STATE v. NIGERIA LABOUR CONGRESS [2003J 8 NWLR (PT. 821) 1 that except for matters falling within section 251 of the 1999 Constitution, the High Court of the State has unlimited jurisdiction in all other matters. Learned counsel referred to the Trade Disputes Act and contended that the court has to determine whether its provisions negated the provisions of the Constitution and the provisions of the Constitution which nullifies a law which contradicts it. He stated that section 2 of Trade Disputes Acts, Cap 432 LFN 1990 ousted the jurisdiction of the regular courts to entertain trade disputes matters. Learned counsel cited plethora of cases and authorities to drive home his points. He submitted that the provisions of section 242 of the Investments and Securities Act is inconsistent with the provision of section 272(1) of the Constitution. He stated that the court below was right to have assumed jurisdiction over the matter under section 272 (1) of the Constitution.
Learned Respondent's counsel submitted that no Act of the National Assembly can by any argument assume the status that will impinge on or derogate from the clear provisions of the Constitution. He stated the subject matter of this action falls within the wide jurisdiction of the State High Court by the Constitution. He continued that section 242 of the Investments and Securities Act purports to impinge or derogate from this jurisdiction. Counsel reiterated that the disputes and controversies over which the Investments and Securities Act has jurisdiction are those that arise from the provisions of the Investment and Securities Act. Further that the torts of fraudulent conversion, conspiracy and fraud do not falls within the ambit of the Act. Therefore, the Investments and Securities Tribunal is bereft of jurisdiction over the matter of the Respondent's claim.
Learned counsel submitted that the provisions of section 234(1) of the Act must be interpreted as qualifying the whole of the provisions of section 234 (2). Counsel stated that the disputes and controversies that must be shown to have arisen under the provisions of the Act which must be disputes between capital market operators and investors and that it cannot be argued that the Act makes provisions for the torts of fraudulent conversion, conspiracy and fraud. He reiterated that these are matters outside the purview of the Tribunal's jurisdiction. He argued further that the explicit denial of broker and client relationship by the Appellants consistently in their Statement of Defence takes the case outside the jurisdiction of the Investment and Securities Act.
In their Reply brief, Appellants' counsel submitted that the argument of the Respondent in paragraphs 5.4 - 5.15 of its brief which places heavy reliance on the ejusdem generis rule of interpretation, that sections 4(2); 4(3) and 6(5) of the Constitution do not come within the other provisions of the Constitution used in section 272 of the Constitution is misconceived. He stated that where the words used in a statute are cleared and free from ambiguity they should be given their ordinary meaning. He relied on NNPC v. LUTIN INVESTMENT LTD.  2 NWLR (PT. 965) 506 at 528; IYIHO v. EFFIONG  11 NWLR (PT. 1044) 31 at 47 para G.
Learned Appellants' counsel also contended that Investments and Securities Act is an existing law before 29th May 1999. He also stated that the argument by the Respondent in respect to this is misconceived. Counsel submitted that in so far as the Constitution has empowered the National Assembly to establish courts and confer jurisdiction on the courts so established, the Investments and Securities Tribunal established under section 224 of the Investments and Securities Act which was conferred with exclusive jurisdiction in respect of capital issues, is a product of the constitution itself. He stated further that the provision of section 242 of the Act is not inconsistent with the Constitution. Counsel argued that the power given to the Investments and Securities Tribunal by sections 234, 236 and 237 of the Act make it a court of law within the meaning of sections 6 (5) and 316 of the Constitution. He relied on ADEYEMI (ALAAFIN OF OYO) v. A.G. OYO STATE  15 NSCC 397 at 436 lines 35-39; ADAH v. NYSC  13 NWLR 639. He submitted that IST is a court of law competently established to exercise exclusive jurisdiction.
Learned counsel to the Appellants contended that various cases cited by the Respondent are misconceived. Finally, he submitted vide U.B.A. PLC v. B.T.L. IND. LTD.  ALL FWLR (PT. 352) 1657 paras D-G that it is the plaintiffs case that determines jurisdiction of the court. On the contrary, counsel submitted that the issues in this case arose from the alleged mandate to purchase shares and that it is a matter within the ambit of the Investments and Securities Act.
Subsequent upon hearing of argument of counsel and at the time of writing the judgment, it became imperative that we invite counsel to address us on the implication of the time the cause of action in the matter leading to the instant appeal arose particularly as it relates to the jurisdiction of the lower court under the 1999 Constitution.
To this extent, both the Appellants' as well as the Respondent's counsel filed written address embodying their respective argument on the issue so raised suo motu by use. Appellants' address filed by Said Sanusi Esq. and Agu Susan is dated and filed 10th February, 2016 while that of the Respondent filed by E. Robert Emukpoero Esq., Ifeoluwa Ojediran Esq., and Oluwaseun Olusiyi is dated and filed 8th January, 2016.
Said Sanusi Esq on behalf of the Appellant relied on CHUKWU v AKPELU  13 NWLR (PT 1424) 39; AZUH v UBN PLC (2014) 11 NWLR (PT 1419) 580 at 590 to submit that from the
statement of claim dated 5th October, 1999, paragraph 13-17 thereof, the cause of action arose in September 1995 and that the Constitution came into force on 5th may 1999, five years after the cause of action arose. He referred to the schedule in Cap 63, Laws Federation of Nigeria, Volume IV, 1990, which became operative on 1st October 1992 subject to the provision of the CA/L/532/2008 Page 12 of 30 Constitution retained under Cap 64, LFN, Volume IV 1990. Counsel noted that the subject matter of the action relates to company shares UAC of Nigeria Pic ordinary shares purchased by Appellant on behalf of the Respondent which the former allegedly fraudulently dealt with and caused losses and that this falls under section 581(1) & (2) of the Companies and Allied Matters Act (CAMA) which provides for the limitation of time of two years. He referred to section 249 (1) (c) (i) of Constitution, Cap 63 volume IV 1990 to argue that conferred jurisdiction on the federal high court in respect of matters arising from the operation of the CAMA or any other enactments regulating the operations of companies incorporated under the CAMA.
He referred to NBCN v DAUPHN (NIG)  16 NWLR (PT 1432) 90 and this was the law at the time of cause of action. He relied on OLAGBERO v OLAYIWOLA  17 NWLR (PT 1436) 313 at 329 to the effect that it was the federal high court that had jurisdiction. He also relied on NNPC v ORHILOWASELE  13 NWLR (PT 1371) 211 at 216; IBRAHIM v LAWAL  17 NWLR (PT 1489) 523; ACN v INEC [2013) 13 NWLR (PT 1370) 161; AMADI v INEC  4 NWLR (PT 1345) 595 at 631; YARE v NSW & IC  12 NWLR [PT 1367] 173; JEV v IYORTOM  14 NWLR (PT 1428) 575 at 611, paras B -D; DANGANA v USMAN  6 NWLR (PT 1349) 505; AHMED V AHMED  15 NWLR (PT 1377) 274 at 331.
Finally, he urged the court not only to only allow the appeal but to strike out the entire action for being incompetent because the cause of action has been extinguished. Respondent Counsel on the other hand submitted that the 1999 Constitution is the relevant law to look at despite the cause of action which arose in September 1995 and the jurisdiction of the court as the cause of action commenced which is 5th October 1999 and not the law in existence when the cause of action accrued. He cited OSAKWE v FCE  10 NWLR 9 (PT 1210) 1 at 43; ADAH v NYSC  13 NWLR (PT 891) 639; OBIUWEBI V CBN (2011 7NWLR (PT 1247) 265 at 495; OHMB v GARBA (2002) 7 SC (PT 11) 416; OLUTOLA v UNIILORIN  18 NWLR (PT 905) 419; AINA OLUFUNSHO & ORS v GLOBAL SOAP & DETERGENT IND. LTD (2012) LPELR - 9822, Finally, he maintained that Lagos High Court is the court that has jurisdiction over the instant case.
For the purpose of emphasis, and having regard to the issue raised suo motu by this court, the issue for determination of this appeal are:
"1. Whether having regard to the time of the cause of action in the instant case, the State High Court can competently exercise jurisdiction over the instant case?"
A careful perusal of the argument of the respective counsel under the two issues reveal that both issues overlaps and are at best treated together.
Instructively, the issue of jurisdiction is not only a notorious one but it is so fundamental to the adjudicatory competence of a court or tribunal. Where a court embarks upon a decision in any
given matter without the requisite jurisdiction, that decision is null and void, and liable to be set aside. The issue of jurisdiction is so imperative that it can be raised at any stage of the trial and at any point in time, either at the trial or on appeal in the Court of Appeal, or even for the first time in Supreme Court. Due to its fundamental nature thereof, the issue of jurisdiction need not necessarily be raised suo motu by parties alone. It can be raised even by either the trial or appellate court itself. See KOTOYE v SARAKI  7 NWLR (PT 357) 414; MADUKOLU v NKEMDILIM (1962) 2 SC NLR 341. Meanwhile, the law applicable therefore is the law in force at the time of cause of action arose and the law relating to jurisdiction of which court to hear it is the prevailing in force at the time of institution and trial of the action and the law in both may not co-exist. See: OKONKWO & ORS v OKONKWO (2010) LPELR - 9357 (SC); ADAH v NYSC  13 NWLR (PT 891) 639; UTIH v ONOYIVWE  11 NWLR (PT 116); UWAIFO v A-G BENDEL (1982) 7 SC 236. Therefore, the law relevant to be considered in this appeal is that as at the 5th of October, 1999, which is the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Investment and Securities Decree No. 45 of 1999.
The relevant paragraphs of the Respondent's Statement of Claim filed at the lower court states:
"(2) The 1st Defendant is a Limited Liability Company and carries on business as Stock Brokers at Sarah House 144A Association Road, Dolphin Estate Ikoyi, Lagos....
(10) By the Plaintiffs letter Dated the 3rd of January 1995 it formally mandated that 1st Defendant to acquire for it with the aforesaid funds, as much of the UAC of Nigeria Plc shares as it "can mop-up from the market" and the 1st defendant by its letter of January 4th 1995 confirmed its willingness to carry out the aforesaid mandate of the plaintiff for a fee of N4 Million (four million naira) to the 1st Defendant.
(11) According to a document prepared by the 1st Defendant and headed "statement of Affairs" it admitted being in receipt of a total sum of N235,252,000=00 and state that a total sum of N80,925,693.34 was spent in the purchase of the UAC of Nigeria Pic ordinary shares. It was, to return to the Plaintiff Via the Bank, the sum of N154,326,306.99.
(12) The Plaintiff avers that in the course of the acquisition of the aforesaid shares of UAC of Nigeria Plc, the Defendants in furtherance of a conspiracy to defr5aud it refused, despite persistent demands, to give a statement of account of purchases of shares that was undertaken on its behalf. They kept the plaintiff completely in the dark as to the exact quantum of shares that was acquired by them.
(13) However, the 1st Defendant by its letter of September 25th, 1995 which was a response to the Plaintiffs letter Dated 22nd September 1995, stated that it returned a total sum of N154,524,444.90k by means of various payments into the Plaintiiffs account with the Bank and payments made directly to the investor.
(14) The aforesaid payment by the 1st Defendant is evidenced by the following instruments.
(i) 1st Defendant's Crystal Bank of Africa Ltd cheque No: 00006 of 29th March 1995 for the sum of N56,395,360=00 (Fifty six million three hundred and ninety five thousand three hundred and sixty naira) made payable to the Plaintiff.
(ii) 1st Defendant's Crystal Bank of Africa Ltd cheque No. 00023 of 28th April 1995 for the sum of N17,678,360=00 (Seventeen million, six hundred and seventy eight thousand three hundred and sixty naira) and made payable to the Plaintiff.
(iii) 1st Defendant's letter of April 6th 1995 addressed to the Bank directing it to pay a GULF BANK OF NIGERIA LTD Draft No:15240 for the sum of N20,000,000=00 (twenty million naira) into the Plaintiffs account with the Bank.
(iv) 1st Defendant's letter of March 29th 1995, by which it authorised the Bank to credit the Plaintiffs account with the sum of N 36,145,760:00 (thirty six million one hundred and forty five thousand, seven hundred and sixty naira) "being excess return monies on the offer" which the Bank collected directly.
(v) Direct payment by the 1st Defendant to the investor, by mans of GULF BANKOF NIGERIA LTD Draft for the sum of N24,106,826.60 and N198,138.30, making a total of N 24,304,964.90 (twenty four million, three hundred and four thousand, nine hundred and sixty four naira, ninety kobo).
(15) The Plaintiff avers that the aforesaid payments represents all the monies the 1st Defendant r5eturned out of the sum of N235,252,000=00 (Two hundred and thirty five million, Two hundred and fifty two thousand naira) whilst the balance of N80,727,555.10 (Eighty million, seven hundred and twenty seven thousand five hundred and fifty five naira ten kobo) was used to purchased at least 14,415,634 units of UAC of Nigeria Pic ordinary shares at the rate of N5.60k (Five naira, sixty kobo) per share."
My lords, in the instant appeal, we are faced with the construction of the cumulative effect of certain provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) vis a vis those of the Investments and Securities Decree, No 45 of 1999. At page 87 of the record, the lower court held:
"To the extent therefore that the Investment and Securities Act seeks to oust the jurisdiction of the State High Court donated by the Constitution of the Federal Republic of Nigeria, it cannot stand."
Before moving further, I do not think that there is any doubt or contention as to the dictates of Section 272(1) of the Constitution, vesting jurisdiction in the High Court of the States, is subject to the provisions or wordings of section 251 of the Constitution. In other words, both parties have shown through their arguments that they agree with the position that the jurisdiction of the State High Court cannot be appreciated until section 272 is juxtaposed with section 251 of the Constitution. This position has been long settled by the Apex Court per Uwaifo J. in the case in NDIC v. OKEM ENTERPRISE LTD.& ANOR (2004) 10NWLR (PT. 880) 107 at page 183 paragraphs E-H, where he held thus:
"The High Court of a State can only exercise jurisdiction in any aspects of such specified matters to the extent that the proviso in Section 251 (l)(d) permits. The said proviso cannot be interpreted to have the effect of conferring exclusive jurisdiction of the State High Courts and taking away the jurisdiction of the Federal High Courts......"
The main relief sought by the Respondent in the instant case is as follows:
"Delivery up to the plaintiff 7,159,908 (seven million one hundred and fifty nine thousand nine hundred and eight units of UAC of NIG plc shares and all bonuses issued on the aforesaid shares since 1996"
The above relief apparently bothers on shares of a publicly quoted company which in effect are stocks under the capital market, falling within the realm of the Exclusive Legislative List - under the sphere of the Federal government and with powers given to National Assembly to make laws upon. The dispute leading to the instant action arose from a mandate with respect to dealing in shares. See Section 4(2) & 6(5) of the 1999 Constitution; Items 12 & 68 of part 111 to Second Schedule of the Constitution, wherein the National Assembly has power to legislate on capital issues and capital market.
Therefore, the State High Court having been restricted to the concurrent list via the legislative power of the State House of Assembly in the Constitution, it will be safe to say that it cannot hear matters arising from or under the Exclusive Legislative List. See GOVT OF KWARA STATE v GAFAR  4 NWLR (PT 1024) 375 at 398, para G.
Furthermore, it should be emphasized that the National Assembly of the Federation has the constitutional powers to create laws in Nigeria. This position has been perfectly articulated by the Supreme Court in OSUN STATE INDEPENDENT ELECTORAL COMMISSION & ANOR V ACTION CONGRESS & ORS (2010) LPELR- 2818 (SC) at page 102. Section 4(1) and (2) of the Constitution provides thus:
"(1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation, which shall consist of a Senate and a House of Representatives.
(2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution."
At the state level on the other hand, section 4 (6) and (7)(a) of the Constitution reads:
"(6) The legislative powers of a State of the Federation shall be vested in the House of Assembly of the State.
(7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say:-
(a) Any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution."
The National Assembly has been vested with the constitutional power to create laws that are itemized in Part 1 of the Second Schedule of the Constitution. For the sake of clarity, the Exclusive Legislative List, as the name connotes, contains areas reserved for only the National Assembly to legislate upon. As earlier noted, it is safe to say that after a perusal of the said list the subject matter of this case which borders on 'control of capital issues' is on item 12 the said list. The State House of Assembly has the power to only create laws on items which are not on the Exclusive Legislative List and do not even have the constitutional backing to solely assume jurisdiction it does not have or is not given. See: OSUN STATE INDEPENDENT ELECTORAL COMMISSION & ANOR V ACTION CONGRESS & ORS (supra). This position is further reiterated in section 251 of the Constitution. The first part of this section confirms that it is the National Assembly that confers on the Federal High Court its jurisdiction. Subsection (l)(e) gives the Federal High Court exclusive jurisdiction on matters arising from the operation of the Companies and Allied Matters Act (hereinafter called 'the CAMA') or any such regulations regulating the operations of companies.
Meanwhile, Section 251 is very much useful and relevant that reference is made to it in establishing the jurisdiction of the State High Court in section 272(1) of the Constitution. The section dictates as follows:
"Subject to the provisions of section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person."
It should be clear at this juncture that the intent or spirit of the sections above point in one direction. In simple terms, it is the Federal High Court by virtue of the jurisdiction conferred upon it by the National House of Assembly under the Constitution, that has the exclusive jurisdiction to entertain matters that arise from the administration of the CAMA. This position of law has been emphasized in the Supreme Court case of ADETONA & ORS. V. IGELE GENERAL ENTERPRISES (2011) LPELR-159 (SC) at PAGE 12-14, Muhammed JSC held that;
"Thus looking at the above provisions, and in a nutshell, it is the Federal High Court alone has jurisdiction on:... iii. Matters relating to management and administration of a Company under the Companies and Allied Matters Act fall within the exclusive jurisdiction of the Federal High Court."
Therefore, the jurisdiction of the State High Court not having been donated by virtue of the above provision has not arisen in this appeal such as to oust the jurisdiction.
Meanwhile, Appellants' counsel had in his written argument on issue raised suo motu by the court, argued as per section 581 (1) and (2) of CAMA that the Respondent's action with respect to the instant appeal is statute barred having regards to the fact that it was not instituted within two years after the accrual of cause of action. I have carefully read the provision of section 581 (1) and (2) and I must say that the does not relate to the subject matter of the instant appeal. Ipso facto, the provision which relates to copies of entries in registers, which states:
1. The Registrar shall upon request give a certified copy of any entry in any register book, register or filed documents in his possession.
2. Every such certified copy shall be received in evidence, without any further proof, in all legal proceedings, civil or criminal."
Even if the referenced section reproduced by the Appellants' counsel in his address is correct, I must say that same is inapplicable to the instant case as the reproduced provision is apparently with respect to matters bothering on Unit trust scheme, which is defined under section 315 of the ISA as:
"any arrangement made for the purpose, or having the effect, of providing facilities for the participation by persons as beneficiaries under a unit trust, in profits or income arising from the acquisition, holding, management or disposal of securities or any other property".
The instant case has nothing to do with Unit trust scheme; it merely relates to a dispute between a capital market operator and its client as per shares purchased by the former on behalf of the latter in a public company.
As earlier noted in the course of this judgment, the law applicable therefore is the law in force at the time of cause of action arose and the law relating to jurisdiction of which court to hear the matter is the prevailing law in force at the time of institution and trial of the action and the law in both instances may not co-exist. See OKONKWO & ORS v OKONKWO (supra).
Prior to 1988, regulation of the capital market was by way of self-regulatory mechanisms and other piece-meal legislations such as Lagos Stock Exchange Act, 1961; Companies Act, 1968 and subsequently, the Securities and Exchange Commission Act, 1988 which established the SEC as the apex regulatory body. On the 26th day of May, 1999, shortly before transition to civilian regime, the Military Government passed Decree No 45 of 1999 to regulate investment and securities matters in Nigeria and as well as matters connected therewith. Same was repealed in 2007 and replaced by an Act of the National Assembly, that is, the Investments and Securities Act (ISA), 2007 and by section 274 thereof, the Investments and Securities Tribunal (IST) was established with exclusive jurisdiction on matters conferred thereupon.
Section 274 states:
"274 There is established a body to be known as the Investments and Securities Tribunal (in this Act referred to as "the Tribunal") to exercise the jurisdiction, powers and authority conferred on it by or under this Act.
The Act does not just create the Tribunal and leave the determination and extent of its jurisdiction at the mercy of legal elements. Section 284 of ISA gives detailed incidences of disputes between parties in which the tribunal shall have jurisdiction to entertain exclusively. Amongst them is that which fits perfectly and is on all fours with the present case is the dispute between capital market operators and their client. For purpose of clarity and better understanding, the section in question is reproduced herein:
" 284 (1) The Tribunal shall, to the exclusion of any other court of law or body in Nigeria, exercise jurisdiction to hear and determine any question of law or dispute involving- (a) a decision or determination of the Commission in the operation and application of this Act, and in particular, relating to any dispute-
(i) between capital market operators;
(ii) between capital market operators and their clients;..."
Moreover, Section 242 of the ISA, states that;
242. Save as provided elsewhere in this Act, no Civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Tribunal constituted under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred on the Tribunal by or under this Act"
The dispute leading to the institution of the action which resulted n the instant appeal is obviously between capital market operator and its client. The question which begs for an answer which, in order to ascertain truly, the applicability of this subsection is, who is a capital market operator? The answer is found in section 30 of the ISA, which provides that:
"capital market operator" includes a securities dealer, a stock broker, sub-broker, jobber, share transfer agent, banker to an issue, trustee of a trust deed, registrar to an issue, merchant banker issuing houses, underwriter, portfolio manager, investment adviser and such other capital market intermediaries as may be licenced by the Commission in accordance with the regulations made under this Act."
Let me reiterate once more that the principal relief sought by the Respondent as per its Statement of Claim is, inter alia for the delivery up of shares by the Appellants, a capital market operator obtained on behalf of the Respondent, its client in a third party company. These matters bothers on shares mandate and not merely a case of ordinary detinue and fraud as held by the lower court. The dispute in the instant appeal entails a transaction with respect to shares by a capital market operator in a publicly quoted company, which went sour.
It is pertinent to say, as earlier noted that, it is the statement of claim and not the statement of defence that determines the jurisdiction of the court. The statement of claim has shown that the 1st Appellant is a capital market operator while the Respondent is its client. I am of the belief that the dispute which arose and the reliefs sought in the lower court is a dispute between the capital market operator (the Appellant) and its client (the respondent). This leaves the Investment Securities Tribunal as the court that can competently adjudicate on the dispute. This position has been further established in cases of AJAYI v SECURITIES AND EXCHANGE COMMISSION (2007) LPELR-4553 (CA
Furthermore, what is the intention of the law makers and what is the mischief sought to be cured by conferring exclusive jurisdiction on the tribunal? See IFUEZE v MBADUGHA & ANOR (1984) ALL N.L.R.256; ONYEANUSI v MISC. OFFENCES TRIBUNAL (2002) LPELR - 2066 (SC).UGWU & ANOR V ARARUME & ANOR (2007) 4 SC (PT1) 88 It is to create a highly specialized speedy disposition of matters and expansive jurisdiction over capital market matters, to warehouse all issues relating to capital markets under a single roof for sanctity in the market and to the market to remain attractive to both local and foreign investors and ultimately for monitoring and enforcement.
The frameworks established under the ISA are a network of specialised financial institution for series of mechanism processes and infrastructure that in various ways facilitate forum for bringing together of supplies and users of medium and long term capital for investment in economic development projections. Tribunals, as it is, exist in order to provide simpler speedier and more accessible justice than ordinary courts and to provide the expertise in matters that are technical in nature and require special knowledge to adjudicate upon. See: H.W.R WADES on Administrative Law (1999).
This is the emphasis on the result set to be achieved by the makers of the law through the establishment of the tribunal. The mischief is to cures the bottle necks at the regular courts, lack of expertise in the intricate issues involved, delays and ripple effect on the investment and securities system to correct a single transaction, which in turn transcends on the economy of the country that is sought to be catered for. The volume and business of securities investment is time-factored and turnover speedier to enable investors see the expected result of their investment in public quoted companies. It affects the investors' confidence and affects the stability of the market.
Having found that the market is fluid and should not be clogged by delays associated with dispute resolution through ordinary courts, it is clear that standing on the constitutionality would make nonsense of the law and affect the stability of the capital market, hence the creation of the IST. See LEGAL, OPERATIONAL AND REGULATORY FRAME WORK OF THE NIGERIAN CAPITAL MARKET 2013, AND DISPUTE RESOLUTION IN THE CAPITAL MARKET: REVIEW OF ADMINISTRATIVE & JUDICIAL S MECHANISM BY ANTONY IDIGBE SAN. SEE PAGE 24 OF THE PAPER DELIVERED AT THE "SECURITY AND EXCHANGE COMMISSION WORKSHOP FOR JUDGES IN 2016 where the Learned Senior Advocate of Nigeria stated:
"In relation to judicial review in Nigeria therefore I think there are some important lessons that can be learnt from Canada. The survival and effectiveness of administrative tribunals is impossible without same healthy degree of deferential attitude by the courts, particularly on issues of facts or where the tribunal is interpreting its own statue.
Administrative tribunals relied on to resolve capital market dispute must be allowed to operate with limited interference.
The Respondent contended in its brief that the establishment of SEC and by extension its Tribunal (IST) was a breach of the 1999 constitution (amended). I hold to the contrary. In AJAYI v SEC (supra) this court held that when section 274 and 284 of the ISA is read together and in context, it will be apparent that the Act vest the adjudication of matters arising from operation of the Investments and Securities Act within the jurisdiction of the Investments and Securities Tribunal (IST). The jurisdiction of the IST is not of concurrent nature with the State High Court. In other words, the jurisdiction vested by the sections in the IST is exclusive.
This court also held in the ITSUELI v SEC (2011) LPELR- 4343 (CA) that the exercise of executive, legislative and judicial powers by SEC and by extension IST was constitutional and did not result in a breach of Section 36 of 1999 constitution (right to fair hearing). Section 36(2) of the 1999 constitution recognises the existence of tribunals and administrative bodies governed by rule of fair hearing and natural justice.
In this case, I am inclined to hold that the High court was wrong to have assumed jurisdiction. See CADBURY PLC V SEC & APC CA/A/105/M/08 decided on 10th July 2008. I resolve both issues in favour of the appellant.
The appeal is meritorious and is hereby allowed. The ruling of Oyefeso J. of High Court delivered on 29th February 2008 is hereby set aside and Suit no LD/ 2912/09 is hereby struck out. Cost of N50,000.00 (Fifty thousand Naira) awarded to the Appellants.
JOSEPH SHAGBAOR IKYEGH. J.C.A.: I agree.
TIJJANI ABUBAKAR. JCA: My Lord and learned brother Obaseki-Adejumo, JCA granted me the privilege to read in draft the elaborate Judgment just delivered. I am entirely in agreement with my brother that appellants appeal is meritorious and deserves to be and is hereby allowed by me.
I also join my learned brother in setting aside the ruling delivered by the lower court on the 29th day of February, 2008 in Suit No: LD/29/12/09.
I also abide by all consequential orders including order on costs.
A. ABANIWANDA, WITH SAID SANUSI FOR APPELLANT