NIGERIA DEPOSIT INSURANCE CORPORATION v DAVIES & ORS

NIGERIA DEPOSIT INSURANCE CORPORATION v DAVIES & ORS


IN THE COURT OF APPEAL
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA

ON FRIDAY, 20TH JULY, 2018


Appeal No: CA/A/327/2010
CITATION:

Before Their Lordships:

ABDU ABOKI, JCA

PETER OLABISI IGE, JCA

MOHAMMED MUSTAPHA, JCA


BETWEEN

NIGERIA DEPOSIT INSURANCE CORPORATION

(APPELLANT)

AND

HON. FEMI DAVIES
CENTRAL BANK OF NIGERIA
NIGERIA STOCK EXCHANGE
FBN (MERCHANT BANKERS) LTD
BGL SECURITES LTD – RESPONDENT(S)
FIRST BANK OF NIGERIA PLC
ECOBANK NIG. PLC
UNITED BANK FOR AFRICA
SECURITIES AND EXCHANGE COMMISSION
FIRST REGISTRARS NIG. LTD

(RESPONDENTS)


PRONOUNCEMENTS


A. APPEAL
1. Reply Brief –

Whether a reply brief is meant to re-argue the case of the appellant

“The Appellant’s Replies to the 1st and 2nd Respondents’ Brief is not different from the arguments canvassed in the Appellant’s Brief of Argument. Pursuant to Order 19 Rule 5(1) of the Court of Appeal Rules 2016, an Appellant’s Reply Brief of Argument is not an avenue or gateway for re-argument of the arguments contained in the main Brief of the Appellant. An Appellant’s Reply must be targeted at replying to new points particularly on law as may be raised in a Respondent’s Brief of Argument. It will amount to an abuse of Court process for an Appellant to indulge in re-arguing or readjusting the submissions in the main brief. See HON. JAMES ABIODUN FALEKE V INEC & ORS (2016) 18 NWLR (PART 1543) 61 AT 115. Appellant’s Reply Brief in regard to the 1st and 2nd Respondents’ Briefs of Arguments is hereby discountenanced.”Per IGE, J.C.A. read in context

B. COMPANY LAW
2. Liquidator –

Status of a liquidator to a company in liquidation and its functions

“I am of the settled view that all the submissions made on behalf of the Appellant cannot avail the Appellant. If as submitted by the Appellant the proceeds of shares by subscribers including 1st Respondent as investment in the defunct All States Trust Bank are not “Deposit” or “Insurable Deposits” for which Appellant has responsibility and if according to the Appellant, taking over a failed Bank is not concerned with “investors in shares” but with depositors, then the Appellant has no right to keep the 1st Respondent’s money and that of other investors since the money was kept in an escrow account as directed by the central

Bank, the monies collected as proceeds for subscription for the shares of All States Trust Bank now defunct cannot be part of assets and liabilities of the defunct Bank to be administered or shared out to creditors of the defunct Bank under Sections 26, 27, 46 of the Nigeria Deposit Insurance Corporation Act and Section 94(l) of the Companies and Allied Matters Act.

The monies paid to buy shares in the defunct Bank was met intact by Appellant and Appellant took the money over. The Appellant thereby became a trustee for the investors in shares of the defunct bank because the defunct Bank did not deal with the shares investors monies and did not spend it including that of the 1st Respondent before its (defunct bank) licence was withdrawn. The Appellant had no business keeping the subscription monies paid by the subscribers which was not yet and was never part of the shareholders’ funds or monies or creditors/depositors fund of the defunct Bank. No Share Certificate was issues to 1st Respondent as the IPO was not processed and concluded before the end came for the defunct Bank.

The 1st Respondent was therefore entitled to be fully refunded his N2 Million and accrued interest on it since the Appellant came into possession of the Appellant’s monies and indeed all the subscribers in the category of the 1st Respondent.

It is repugnant to good conscience and equity for Appellant to retain the subscribers’ monies which was confirmed by the Apex Bank, the Central Bank of Nigeria. The Appellant cannot hide under the cloak of technicalities to escape liability to pay or refund the Appellant’s money with interest. See pages 171 – 197 of the record which were all Exhibits at the lower Tribunal.?

The decision of the lower Tribunal, is fully supported by a community reading of Exhibits A, A1, A2, A3, A4, A5, A6, A7, B, B1, C, D, D1, particularly Exhibits A6 and A5 all showing glaringly that 1st Respondent and N2 Million to All States Trust Bank into its account (the defunct Bank) at TRADE FAIR BRANCH and Bank Teller duly stamped and authenticated Exhibit A6 was issues in favour of Appellant. What is more, Exhibit A5 from Standard Trust Bank showed payment of N2 Million to All States Trust Bank earlier on 12/08/2005. Thus the oral and documentary evidence before the Tribunal fully supported the judgment of the lower Court delivered on 3rd July, 2008. All arguments raised and point of law canvassed by Appellant’s learned Counsel are of no moment as they do not support the case and stance of the Appellant.”Per IGE, J.C.A read in context

C. COURT
3. Jurisdiction – Nature and importance of jurisdiction of court

Importance of jurisdiction of Court; what determines whether a court has jurisdiction

“The position of the law is settled that a litigant must not only follow procedure laid down by a statute or rules of Court when contemplating the filing of an action or suit, the claimant must file his action in a Court endowed or designated for the cause of action or subject matter of the suit. A Court has no jurisdiction to adjudicate upon matters or subject matter of an action or suit not committed or donated to it by the Constitution creating the Court or other jurisdiction committed to it by a statute. The importance of jurisdiction of a Court cannot be overemphasized. The issue of jurisdiction has been underscored in numerous cases as it is the lifeline of all trials. Any trial conducted without or in the absence of jurisdiction will be a complete nullity.

Issue pertaining or relating to the jurisdiction of a Court can be raised at any stage of the proceeding and in the Appellate Courts. This is because if it turns out that the lower Court lacks jurisdiction to adjudicate on a matter an Appellate court will lack the jurisdiction to determine the merit of the appeal therefrom: See:

1. ALHAJI JIBRIN BALA HASSAN VS. MR MUAZU BABANGIDA ALIYU & ORS (2010) 11 SCM 69 at

93 E per ONNOGHEN JSC, now CJN who said: “It is trite that jurisdiction is very fundamental to adjudication and that where a Court lacks the competence to hear and determine a matter but proceeds to do so, an appellate Court is duty bound to nullify a decision therefrom.”

2. OLUBUNMI OLADIPO ONI VS CADBURY NIGERIA PLC (2016) LPELR – 26061 (SC) 21 – 22 where NWEZE, JSC said:

“As is well known, the issue of jurisdiction poses, a crucial question of competence Madukolu and Ors. vs. Nkemdilim (1962) 2 NSCC 374, Okoya vs. Santilli (1990) SC (Pt.11) 1, Emeka v. Okadigbo and Ors (2012) JSC (Pt.1) Unarguably, where there is absence of jurisdiction, the entire, trial, findings. Orders and Pronouncement of the Court come to naught, Okoya vs. Santilli (Supra), Osattle vs. Odi (Supra) Emeka v. Okadigbo and Ors. (Supra).”

3. CHIEF IKEDI OHAKIM VS CHIEF MARTIN AGBASO & ORS (2010) 12 (PT. 2) SCM 134 at 169 E – H per ONNOGHEN, JSC now AG. CJN, who firmly held as follows:
“By the authority of Madukolu vs. Nkemdilim, supra a Court is competent inter alia, when the case comes before it initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. It is also settled law that any defect in competence is fatal for the proceedings are a nullity however well conducted and decided, the defect being extrinsic to the adjudication. Secondly, election matters being statutory, the common law writs or orders of certiorari, mandamus, prohibition declaration, damages and or injunction are not applicable as they cannot change the character of election matters which belong, by Constitutional arrangement, to election Tribunals and outside the jurisdiction of the High Courts under any guise. It follows therefore that since the Federal High Court lacks the jurisdiction to entertain the matter as constituted, the lower Court had no jurisdiction to entertain the appeal arising therefrom.” The law is trite that in order to determine whether a Court has jurisdiction to entertain or adjudicate on a matter it is the Writ of Summons and the Statement of Claim that must be examined and where it is on action begun by Originating summons it is the reliefs claimed on it and the Affidavit in Support that are to be scrutinized. Those are the processes that will show if there is jurisdiction in the Count seised of the matter.

See P.D.P. vs. TIMIPRE SYLVA & ORS (2012) 13 NWLR (PART 1316) 85 at 127 where OLABODE RHODES-VIVOUR, JSC said:
“Jurisdiction of a Court to entertain a Suit is resolved by scrupulous examination of the Writ of Summons, the Statement of Claim and the reliefs claimed. No other document should be examined where the originating process is an Originating Summons, the affidavit filed in support of the Originating Summons serves as the Plaintiff’s pleadings (Statement of Claim). Jurisdiction would be resolved by examining only the Originating Summons, the reliefs contained therein and the affidavit filed in Support.”Per IGE, J.C.A. read in context

D. TRIBUNAL
4. Investments and Securities Tribunal –

Extent of the jurisdiction of the Investment and Securities Tribunal

“Now what is the jurisdiction committed or donated to the Investments and Securities Tribunal under the investments and Securities Act Cap 124 Section 284 thereof which provides as follows:-

“284. Jurisdiction of the Tribunal, etc.

(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:

(il) between capital market operators and their clients;

(iii) between an investor and a Securities Exchange or Capital Trade Point or clearing and settlement agency
(iv) between capital market operators and self-regulatory organizations;

(b) the Commission and self-regulatory organization:

(c) a capital market operator and the Commission;

(d) an investor and the Commission:

(e) an issuer of securities and the Commission; and

(f) disputes arising from the administration, management and operation of collective investment schemes.
(2) The Tribunal shall also exercise jurisdiction in any other matter as may be prescribed by on Act of the National Assembly.
(3) In the exercise of its jurisdiction the Tribunal shall have the power to interpret any law, rules or regulation as may be applicable.”
The settled position of the law is that in the interpretation of statute words therein must be interpreted literally so as to bring out succinctly the intention of the lawmakers without taking into account extraneous matters or issues. See OZONMA (BARR) VS. INEC & ORS (2015) 16 NWLR (PART 1485) 197 at 223 E – G where M. D. MUHAMMAD JSC said: “The interpretative task of the foregoing desired a communal consideration from the lower Court. Whenever a Court is faced with the interpretation of statutory provisions, the statute must be read as a whole in determining the object of a particular provision. Thus, all provisions of the statute must be read and construed together unless there is a very clear reason independently. To achieve a harmonious result, a section must be read against the background of another to which it relates. This principle is indispensable in giving effect to the true intentions of the makers of the statute. See Rabiu v. Kano State (1980) 8-11 SC 130, (1981) 2 NCLR 293 and Attorney-General Lagos State v. Attorney-General Federation (2014) ALL FWLR (Pt. 740) 1296 at 1331, (2014) 9 NWLR (Pt. 1412) 2.17.”

And on page 224 E My Lord continues thus:

“Lastly, Courts must interpret the law within the context of its constitutive words and refrain from seeking the meaning of the statute outside the clear words employed by the legislators. See Senator Dahiru Bako Gassol v. Alhaji Abubakar Umar Turare & Ors (2013) 3 SCNJ 6 (2013) 14 NWLR (Pt.1374) 221 and Mr. Ugochukwu Duru v. Federal Republic of Nigeria (2013) 2 SCNJ 377, (2013) 6 NWLR (Pt.151) 441.”

A close perusal of the Applicant’s claims and facts relied upon put the 1st Respondent’s Suit or action clearly within the ambit and jurisdiction of the Investment and Securities Tribunal and the said Tribunal has the jurisdiction to adjudicate on 1st Respondent’s claim. The claim involves investment and securities business under the Investment and Securities Act.”Per IGE, J.C.A. read in context


LEAD JUDGMENT DELIVERED BY IGE, J.C.A.


This appeal is against the judgment of Investment and Securities Tribunal presided over by Dr. Nnenno Orji and delivered on the 3rd day of July, 2008.

The claimant now respondent had approached the said Tribunal vide their Originating Application dated 4th day of June, 2007 and filed same day, wherein the claimant claimed against the Respondents jointly and severally as follows:-

The payment of the sum of N2,000,000.00 (Two Million Naira Only) being the sun invested in 1,000,000 Ordinary Shares of All States Trust Bank (NOW ECOBANK) with interest at the rate of 21% per annun from August 2005 till date and thereafter at the rate of 18% per annum until judgment is given.

An Order mandating the compulsory allotment to the Plaintiff of 2 Million Naira worth of shares of ECOBANK PLC at the present market value of the said shares.”

The matter proceeded to trial. At the end of the trial the learned trial Chairman gave a considered judgment on 3rd July, 2008 where the Tribunal Chairman held as follows:-

“1. That the Applicant’s N2,000,000 paid for 1,000,000 ordinary shares of All States Trust Bank Plc in the botched IPO is in the custody of the 1st Respondent.

2. That the 1st Respondent is hereby ordered to pay the sum of N2,000,000 to the Applicant and interest at 2% above MPR from March 2006, i.e. the day the 1st Respondent took over the All States Trust Bank until the full liquidation of the principal sum.”

The Appellant was aggrieved by the judgment and has by its Notice of Appeal dated and filed on the 7th day of July, 2010 appealed to this Court on four grounds which without their particulars are as follows:
“1. GROUND ONE

The Tribunal erred in law when it assumed jurisdiction to adjudicate on this matter which is not within the purview or the jurisdiction conferred on it by Section 234 of the Investments and Securities Act (ISA) No. 45 1999 (as amended). GROUND TWO

The Tribunal erred in law when it held:

“This Tribunal herefore finds that the subscription monies received by All States Trust Bank as a receiving agent in the botched public offer inclusive of the Applicant’s N2,000,000.00 are in the custody of the 1st Respondent.”

3. GROUND THREE

The Tribunal misdirected itself in law when in determining the status of the 1st Respondent’s fund lodged with All States Trust Bank prior to allotment of shares it categorized same as a deposit liability.

4. GROUND FOUR

The Honourable Tribunal erred in law when it invoked Section 149(d) of the Evidence Act against the Appellant to reach a conclusion in the crucial issue of whether or not the name of the 1st Respondent is on the list of subscribers whose monies were trapped in All States Trust Bank.

The Appellant’s Amended Brief of Argument was dated and filed on the 5th day of March, 2014. The 1st Respondent’s Brief of Argument dated 3rd June, 2015 was filed on 5th June, 2015. The 2nd Respondent’s Brief of Argument was dated and filed on 20th June, 2016, but was deemed filed on 28th June, 2016. The Appellant’s Reply Brief in response to the 1st Respondent’s Brief of Argument was dated and filed on 3rd July, 2015 but it was deemed filed on 28th July, 2016. The Appellant’s Reply Brief in response to the 2nd Respondent’s Brief of Argument was dated and filed on 10th February, 2017 but it was deemed filed on 14th February, 2017.

The appeal was heard 26th June, 2018, when the learned Counsel to the parties adopted their Briefs of Argument. The learned Counsel to the Appellant distilled three issues for determination as follows:-
i. WHETHER HAVING REGARD TO THE 1ST RESPONDENT’S CLAIM FOR REFUND OF MONEY WITH INTEREST OVER A FRUSTRATED CONTRACT, THE TRIBUNAL HAS JURISDICTION TO HEAR AND ADJUDICATE OVER THE MATTER (GROUND 1)

ii. WHETHER THE TRIBUNAL WAS RIGHT ON THE STATE OF EVIDENCE TO HOLD THAT THE 1ST RESPONDENT’S SUBSCRIPTION MONEY OF N2 MILLION PAID IN RESPECT OF THE ALL STATES TRUST BANK’S BOTCHED PUBLIC OFFER WAS/IS IN THE CUSTODY OF THE APPELLANT. (GROUNDS 2, 3, & 4)

iii. ASSUMING WITHOUT CONCEDING THAT THE 1ST RESPONDENT’S N2 MILLION IS IN THE CUSTODY OF THE APPELLANT OR AS HAVING FORMED PART OF THE ASSETS OF ALL STATES TRUST BANK AS AT THE TIME THE APPELLANT TOOK OVER AS LIQUIDATOR, WHETHER THE TRIBUNAL HAS POWER TO ORDER THE PAYMENT OF THE SUM OF N2 MILLION AND INTEREST TO THE 1ST RESPONDENT (GROUNDS 2 & 3).

Learned Counsel to the 1st Respondent distilled two issues for determination viz:-

1. WHETHER THE TRIBUNAL LACKS THE JURISDICTION TO ENTERTAIN THE CASE OF THE 1ST RESPONDENT AS CONSTITUTED BEFORE IT.

2. WHETHER ON THE STATE OF EVIDENCE AND IN THE LIGHT OF THE PROVISIONS OF THE INVESTMENT AND SECURITIES ACT, THE TRIBUNAL WAS NOT JUSTIFIED IN LOCATING THE 1ST RESPONDENT’S SUBSCRIPTION MONEY IN CUSTODY OF THE APPELLANT AND CONSEQUENTLY ORDERING A REFUND WITH INTEREST.

Learned Counsel to the 2nd Respondent formulated two issues for determination viz:-

i . WHETHER THE TRIBUNAL LACKS THE JURISDICTION TO ENTERTAIN THE CASE OF THE 1ST RESPONDENT AS CONSTITUTED BEFORE IT.

ii. WHETHER ON THE STATE OF EVIDENCE AND IN THE LIGHT OF THE PROVISIONS OF THE INVESTMENTS AND SECURITIES ACT, 2004, THE TRIBUNAL WAS NOT JUSTIFIED IN LOCATING THE 1ST RESPONDENT’s MONEY IN THE CUSTODY OF THE APPELLANT AND CONSEQUENTLY ORDERING A REFUND WITH INTEREST.

I am of the view that Issues 1, 2, and 3 formulated by the Appellant can be utilized to determine the merit or otherwise of the appeal herein. I will treat them together.

ISSUES 1, 2 AND 3

i. WHETHER HAVING REGARD TO THE 1ST RESPONDENT’S CLAIM FOR REFUND OF MONEY WITH INTEREST OVER A FRUSTRATED CONTRACT, THE TRIBUNAL HAS JURISDICTION TO HEAR AND ADJUDICATE OVER THE MATTER. (GROUND 1)

ii. WHETHER THE TRIBUNAL WAS RIGHT ON THE STATE OF EVIDENCE TO HOLD THAT THE 1ST RESPONDENT’S SUBSCRIPTION MONEY OF N2 MILLION PAID IN RESPECT OF THE ALL STATES TRUST BANK’S BOTCHED PUBLIC OFFER WAS/IS IN THE CUSTODY OF THE APPELLANT. (GROUNDS 2, 3, & 4)

iii. ASSUMING WITHOUT CONCEDING THAT THE 1ST RESPONDENT’S N2 MILLION IS IN THE CUSTODY OF THE APPELLANT OR AS HAVING FORMED PART OF THE ASSETS OF ALL STATES TRUST BANK AS AT THE TIME THE APPELLANT TOOK OVER AS LIQUIDATOR, WHETHER THE TRIBUNAL HAS POWER TO ORDER THE PAYMENT OF THE SUM OF N2 MILLION AND INTEREST TO THE 1ST RESPONDENT. [GROUNDS 2 & 3]

Learned Counsel to the Appellant submits that the jurisdiction of the Tribunal was improperly invoked as regards the 1st Respondent’s sole claim for refund of his subscription money with interest. He cited and relied on
TUKUR V GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) P. 517 at p. 526, paras B – C as well as Section 284(1) and (2) of the Investments and Securities Act, 2007.

That the 1st Respondent was not yet a share holder but a prospective investor having manifested his intention by his offer through IPO which was yet to be accepted by the defunct Bank before it was liquidated. He relied on QIC FIELD SUPPLY CENTRE LTD V JOHNSON (1993) 2 S.E.C. LAW REPORT 48.

That the money of the 1st Respondent is made easier for recovery at the regular Courts by virtue of Rule 64 of the Securities and Exchange Commission (SEC) Rules mode pursuant to ISA, 2007, which provides that monies collected by receiving agents of a public offer are to be held in trust in special accounts for the issuer until the latter allots shares to the Applicants, thus where the public offer is inconclusive as here and there is a claim for refund of money for the botched IPO, all the claimant need to do, is to approach the Federal High Court for the refund thereof either from the receiving agent or the issuer where there is evidence that the money has been transferred to it from the issuer’s liquidator where the issue as here is in liquidation in accordance with the liquidator’s statutory rules of engagement.

That the prospectus of the defunct Bank clearly specified where subscription monies should be paid. And Rule 184 of SEC Rules forbade the defunct bank as an issuing bank from acting also as a receiving bank in its own issue. Therefore a suit to retrieve the money should be on the same footing as a suit in bank customer relationship devoid of any capital market/security issue as handled in regular Courts. That the Tribunal has limited jurisdiction as to who and who can appear before it. He relied in NEPA V EDEGBERO (2002) 18 NWLR (PT. 798) P 79 AT PAGE 100 paras D – F. Learned Counsel urged this Court to resolve issue one in favour of the Appellant.

In response, learned Counsel to the 1st Respondent submits that the case of the Applicant as constituted is what determines jurisdiction. He relied on OSUN STATE GOVERNMENT V DALAMI NIGERIA LIMITED (2007) 9 NWLR (PT. 1038) P 66 AT 84 – 85 PARA H – B; ONUORAH V KRPC (2005) MJSC P. 137 AT 157 PARA A-C.

That the cause of action arose in 2005 when the 1st Respondent subscribed for shares in All States Trust Bank and the suit was instituted on 4th June, 2008 before the coming into effect of the 2007 Act, the jurisdiction of which the Appellant is now trying to invoke against the 1st Respondent.

That the dispute as submitted by the 1st Respondent herein is a dispute and indeed a controversy arising out of the operations of the Act and the regulation made thereunder and for which the Tribunal was properly seized of jurisdiction and he urged this Court to so hold by dismissing the Appellant’s issue 1.

In his response, learned Counsel to the 2nd Respondent submits that in determining whether a Court has jurisdiction to hear and determine a case, one of the fundamental principles that must be considered is whether the subject matter of the case is within the Court’s jurisdiction. He relied on EBLUWUBI V CBN (2011) 7 NWLR (PART 1247) p. 465.

That the purchase of shares of the defunct All States Trust Bank Plc by the 1st Respondent is an investment business in line with the intendment of the framers of the law, the Tribunal therefore become properly seized and competent to adjudicate upon the matter by virtue of the disputes and controversies arising therefore by virtue of the extant provisions of Section 234(1) of the Investments and Securities Act, 2004.

That the relevant law in ascertaining if the Tribunal has jurisdiction to determine the suit is the Investment and Securities Act, Cap 124, Laws of the Federation, 2004 and not the Investments and Securities Act, 2007 contrary to the submissions of the Appellant. Learned Counsel urged this Court to discountenance the Appellant’s submissions on this issue.

The Appellant’s Replies to the 1st and 2nd Respondents’ Brief is not different from the arguments canvassed in the Appellant’s Brief of Argument. Pursuant to Order 19 Rule 5(1) of the Court of Appeal Rules 2016, an Appellant’s Reply Brief of Argument is not an avenue or gateway for re-argument of the arguments contained in the main Brief of the Appellant. An Appellant’s Reply must be targeted at replying to new points particularly on law as may be raised in a Respondent’s Brief of Argument. It will amount to an abuse of Court process for an Appellant to indulge in re-arguing or readjusting the submissions in the main brief. See HON. JAMES ABIODUN FALEKE V INEC & ORS (2016) 18 NWLR
(PART 1543) 61 AT 115. Appellant’s Reply Brief in regard to the 1st and 2nd Respondents’ Briefs of Arguments is hereby discountenanced. 

The position of the law is settled that a litigant must not only follow procedure laid down by a statute or rules of Court when contemplating the filing of an action or suit, the claimant must file his action in a Court endowed or designated for the cause of action or subject matter of the suit. A Court has no jurisdiction to adjudicate upon matters or subject matter of an action or suit not committed or donated to it by the Constitution creating the Court or other jurisdiction committed to it by a statute. The importance of jurisdiction of a Court cannot be overemphasized. The issue of jurisdiction has been underscored in numerous cases as it is the lifeline of all trials. Any trial conducted without or in the absence of jurisdiction will be a complete nullity.

Issue pertaining or relating to the jurisdiction of a Court can be raised at any stage of the proceeding and in the Appellate Courts. This is because if it turns out that the lower Court lacks jurisdiction to adjudicate on a matter an Appellate court will lack the jurisdiction to determine the merit of the appeal therefrom: See:

1. ALHAJI JIBRIN BALA HASSAN VS. MR MUAZU BABANGIDA ALIYU & ORS (2010) 11 SCM 69 at 93 E per ONNOGHEN JSC, now CJN who said:

“It is trite that jurisdiction is very fundamental to adjudication and that where a Court lacks the competence to hear and determine a matter but proceeds to do so, an appellate Court is duty bound to nullify a decision therefrom.”

2. OLUBUNMI OLADIPO ONI VS CADBURY NIGERIA PLC (2016) LPELR – 26061 (SC) 21 – 22 where NWEZE, JSC said:

“As is well known, the issue of jurisdiction poses, a crucial question of competence Madukolu and Ors. vs. Nkemdilim (1962) 2 NSCC 374, Okoya vs . Santilli (1960) 3 SC (Pt.11) 1, Emeka v. Okadigbo and Ors (2012) JSC (Pt.1) Unarguably, where there is absence of jurisdiction, the entire, trial, findings. Orders and Pronouncement of the Court come to naught, Okoya vs. Santilli (Supra), Osattle vs. Odi (Supra) Emeka v. Okadigbo and Ors. (Supra).”

3. CHIEF IKEDI OHAKIM VS CHIEF MARTIN AGBASO & ORS ( 10) 12 (PT. 2) SCM 134 at 169 E – H per ONNOGHEN, JSC now AG. CJN, who firmly held as follows:

“By the authority of Madukolu vs. Nkemdilim, supra a Court is competent inter alia, when the case comes before it initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

It is also settled law that any defect in competence is fatal for the proceedings are a nullity however well conducted and decided, the defect being extrinsic to the adjudication. Secondly, election matters being statutory, the common law writs or orders of certiorari, mandamus, prohibition declaration, damages and or injunction are not applicable as they cannot change the character of election matters which belong, by Constitutional arrangement, to election Tribunals and outside the jurisdiction of the High Courts under any guise. It follows therefore that since the Federal High Court lacks the jurisdiction to entertain the matter as constituted, the lower Court had no jurisdiction to entertain the appeal arising therefrom.”

The law is trite that in order to determine whether a Court has jurisdiction to entertain or adjudicate on a matter it is the Writ of Summons and the Statement of Claim that must be examined and where it is on action begun by Originating summons it is the reliefs claimed on it and the Affidavit in Support that are to be scrutinized. Those are the processes that will show if there is jurisdiction in the Count seised of the matter.

See P.D.P. vs. TIMIPRE SYLVA & ORS (2012) 13 NWLR (PART 1316) 85 at 127 where OLABODE RHODES-VIVOUR, JSC said:

“Jurisdiction of a Court to entertain a Suit is resolved by scrupulous examination of the Writ of Summons, the Statement of Claim and the reliefs claimed. No other document should be examined where the originating process is an Originating Summons, the affidavit filed in support of the Originating Summons serves as the Plaintiff’s pleadings (Statement of Claim). Jurisdiction would be resolved by examining only the Originating Summons, the reliefs contained therein and the affidavit filed in Support.”

By his Amended Originating Application the 1st Respondent claimed against the Appellant and the 2nd to 10th Respondents as follows:-

“The application of HON. FEMI OBAYOMI DAVIES of the Federal House of Representatives, Three Arms Zone, Abuja who names are subscribed.

Claim of the Applicant and reasons for claiming:

1. Applicant avers that the facts leading to this suit are as follows:
That under and by virtue of an initial public offering of 10 billion ordinary shares of All States Trust Bank listed on the exchange of the 3rd Defendant and for which the 4th and 5th Defendant were joint issuing houses, Applicant applied for one million ordinary shares of 50 kobo each at N2:00 per share, paying the sum of two million naira only via a Standard Trust Bank: Account No.056010274028. Copies of the cheque, the deposit slip and the application form are hereby pleaded attached and would be relied upon at the trial of this suit. Notice to produce the original is hereby given to the Respondents, especially the 6th Respondent, being the new owners of All States Trust Bank.

b. That while the Applicant was still waiting to receive a certificate of his investment and or a refund where the investment is not accepted. Applicant learn is taken aback to suddenly that the 1st Respondent the activities has taken over of All States Trust Bank, for reasons that have not been made known or communicated to the Plaintiff by any of the Respondents.

c. That while the Applicant was about to brief his lawyers on the issue, he became aware of the acquisition of All States Trust Bank Plc by 6th Respondent (Ecobank Plc)

d. That plaintiff thereafter waited for sometime hoping to hear from the Respondents on the status of his investments in All States, now Ecobank Plc, but without success after which he visited Ecobank on the issue.

e. That exactly one year after making the investment and without any communication from the Respondents, Applicant, by a letter dated 16th August 2006, wrote to the 1st, 2nd and 3rd Respondents on the matter. The Applicant’s letter and the Respondents’ reply are hereby pleaded, attached and would be relied upon at the trial of this suit.

f. That till date, the Respondents have refused and or neglected to explain the whereabouts of the Applicant’s money or the status of his investment. g. The 1st Respondent is an agency of the Federal Government, Responsible for the takeover and monitoring of distressed and liquidated banks, and was involved in the acquisition and transfer of All States Trust Bank to the New Owners – ECOBANK PLC, the 6th Respondent in this case.

h. The 2nd Respondent is the apex bank in Nigeria established by law and responsible for the regulation of the banking industry including the revocation of banking licences and was involved in the revocation of the banking licence of All States Trust Bank, while in conjunction with the 1st Respondent, it equally transferred Ownership of All States Trust Bank to the 6th Respondent. Furthermore, the 2nd Respondent is believed to be presently in possession of all monies emanating from the initial public offer of All States Trust Bank, of which the Applicant’s money (N2,000,000.00) is part of.

i. The 3rd Respondent, is a Company Incorporated under the Laws of Nigeria and responsible for trading in stocks of various companies listed under their exchange and at all times material to this application, was responsible for approving the issuance of 10 Billion ordinary shares of All States Trust Bank of August 8, 2005 the subject matter of this suit and who in its ordinary course of duty, is expected to monitor the initial public offering up to allotment of shares and the return of monies for unalloted shares. j. The 4th Respondent is a Stock Broking firm registered under the Laws of Nigeria and at all times material to this suit was one of the issuing houses and receiving Banks for the initial public offering of 10 Billion ordinary shares of All States Trust Bank Plc, subject matter of this suit and who by the prospectus, is expected to keep all monies for unalloted shares with interest.

k. The 5th Respondent is equally a stock broking firm and the joint issuing house of the 10 billion ordinary shares of All States Trust Bank Plc of August 8, 2005, subject matter of this suit.

i. The 6th Respondent is a bank registered under the Laws of Nigeria and who is presently the owner of All States Trust Bank, having acquired sane from the 1st and 2nd Defendants and who by virtue of its acquisition of All States Trust Bank, should have alloted shares worth (N2,000,000.00) to the Applicant, or refund same sum of money to the Applicant where it does not intend to allot its shares of equivalent value to the Applicant.

m. The 7th Respondent is one of the receiving bank for the initial public offer and whose responsibility it is to keep all application monies with interest under the prospectus.

n. The 8th Respondent is equally one of the receiving banks for the initial public offering and whose responsibility it is to keep all application monies with interest under the prospectus. It is equally the bank (having merged with Standard Trust Bank) responsible for deducting the N2,000,000.00 (Two Million Naira) offer money from Applicant’s account and needs to show that it actually delivered the money taken from Applicant’s account for the purpose of the offer to the receiving banks.

o. That the applicant is entitled to a refund of his money with interest from the Respondents in line with Article three of the Respondents, abridged particulars of the prospectus for the initial public offering, dated August 2005.

Whereof the Applicant claims against the Respondents jointly and severally as follows:

The payment of the sum of N2,000,000.00 (Two Million Naira only) being the sun invested in 1,000,000 ordinary shares of All States Trust Bank (Now ECOBANK) with interest at the rate of 21% per annum from August 2005 till date and thereafter at the rate of % per annum until judgment is given. OR

An order mandating the compulsory allotment to the plaintiff of two million Naira worth of shares of ECOBANK PLC at the present market value of the said shares.”

Now what is the jurisdiction committed or donated to the Investments and Securities Tribunal under the investments and Securities Act Cap 124 Section 284 thereof which provides as follows:-

“284. Jurisdiction of the Tribunal, etc.

(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:

(il) between capital market operators and their clients;

(iii) between an investor and a Securities Exchange or Capital Trade Point or clearing and settlement agency (iv) between capital market operators and self-regulatory organizations;

(b) the Commission and self-regulatory organization:

(c) a capital market operator and the Commission;

(d) an investor and the Commission:

(e) an issuer of securities and the Commission; and

(f) disputes arising from the administration, management and operation of collective investment schemes.

(2) The Tribunal shall also exercise jurisdiction in any other matter as may be prescribed by on Act of the National Assembly.

(3) In the exercise of its jurisdiction the Tribunal shall have the power to interpret any law, rules or regulation as may be applicable.”

The settled position of the law is that in the interpretation of statute words therein must be interpreted literally so as to bring out succinctly the intention of the lawmakers without taking into account extraneous matters or issues.
See OZONMA (BARR) VS. INEC & ORS (2015) 16 NWLR (PART 1485) 197 at 223 E – G where M. D. MUHAMMAD JSC said:

“The interpretative task of the foregoing desired a communal consideration from the lower Court. Whenever a Court is faced with the interpretation of statutory provisions, the statute must be read as a whole in determining the object of a particular provision. Thus, all provisions of the statute must be read and construed together unless there is a very clear reason independently. To achieve a harmonious result, a section must be read against the background of another to which it relates. This principle is indispensable in giving effect to the true intentions of the makers of the statute. See Rabiu v. Kano State (1980) 8-11 SC 130, (1981) 2 NCLR 293 and Attorney-General Lagos State v. Attorney-General Federation (2014) ALL FWLR (Pt. 740) 1296 at 1331, (2014) 9 NWLR (Pt. 1412) 2.17.”

And on page 224 E My Lord continues thus:

“Lastly, Courts must interpret the law within the context of its constitutive words and refrain from seeking the meaning of the statute outside the clear words employed by the legislators. See Senator Dahiru Bako Gassol v. Alhaji Abubakar Umar Turare & Ors (2013) 3 SCNJ 6 (2013) 14 NWLR (Pt.1374) 221 and Mr. Ugochukwu Duru v. Federal Republic of Nigeria (2013) 2 SCNJ 377, (2013) 6 NWLR (Pt.151) 441.”

A close perusal of the Applicant’s claims and facts relied upon put the 1st Respondent’s Suit or action clearly within the ambit and jurisdiction of the Investment and Securities Tribunal and the said Tribunal has the jurisdiction to adjudicate on 1st Respondent’s claim. The claim involves investment and securities business under the Investment and Securities Act.

Issue 1 is resolved against the Appellant.

Now Issues 2 and 3 relate to whether the sum of N2 Million paid to the defunct All States Trust Banks in respect of its Shares is in custody of Appellant and that even if that is the position or even if the said N2 Million formed part of assets of the said defunct Bank when the Appellant took over as liquidator whether the Tribunal has power to order Appellant to pay the said N2 Million with interest.

The main plank of the Appellant’s case is that having regard to Section 5(a)-(e) of the Nigeria Deposit Insurance Corporation Act spelling out the primary statutory responsibilities of the Appellant and definition of insurable deposits or deposit as defined under Section 46 of Nigeria Deposit Insurance Act, the Appellant is not concerned with investors in shares but with depositors. He also called in aid the provisions of Section 125(1) of the Appellant’s Act. The Appellant submitted that the defunct Bank is still in existence notwithstanding revocation of its banking licence and until its name is struck out of the register of companies it remains a legal entity that can sue or be sued. He relied on case of CCB (NIG) PLC VS MBAKWE (2002) 3

NWLR (PT. 755) 523 AT 527. That the defunct All States Trust Bank can still be made liable for acts done before its banking licence was revoked.

That Appellant can only be made a party to this action with leave of Court and that where the defunct bank is found liable, the liquidator, the Appellant not being personally liable, according to Appellant’s learned counsel is expected to settle the liability of the defunct bank only to the extent the assets of the defunct Bank can afford and subject to priority of claims as provided under Section 494 of Companies and Allied Matters Act. That Section 26 of NDIC Act provided for maximum amount to be paid by the Appellant in case of insured deposits in the event of a failure of a bank based on the recognition that it may not be able to meet the entire claims against the liquidating bank.

The Appellant’s learned Counsel submitted that the Tribunal ought to have stopped at determining the validity of the 1st Respondent’s claim and ordering that his claim against the defunct bank be forwarded to be filed with the Appellant as Liquidator for settlement as with other recognized and competing claims against the defunct bank being handled by the Appellant in accordance with Section 27(1)(b)(ii) of the Appellant’s Act.

The learned Counsel to the 1st Respondent argued to the contrary and submitted under Issues 2 and 3 that the Tribunal was indeed justified in locating the 1st Respondent’s subscription money in the custody of the Appellant and consequently ordering a refund.

That there was uncontroverted evidence before the Tribunal and this was agreed by all the parties that INITIAL PUBLIC OFFERRING of All States Trust Bank which 1st Respondent’s learned Counsel referred to as the subject matter of the entire action was batched because the banking licence of All States Trust Bank was revoked before completion of the Initial Public offering. That there was admission by the Appellant that it is and in possession of N2,437,700,069.00 of the Initial Public offer of subscription to the offer through All States Trust Bank. He relied on the documentary and oral evidence given before the Tribunal and further relied on Rule 64 of the Securities and Exchange Commission Rules which provides that:-

“The Issuing House (the lead issuing house if any) shall ensure that all proceeds of an issue are deposited in separate interest yielding account opened for that purpose with the receiving banker duly registered as a Capital Market Operator.”

The learned counsel to 1st Respondent submitted on the Rule that the combine effect of the Rule read with Section 68 of the Investment and Securities Act Cap 124 LFN 2004 is that the 1st Respondent’s subscription money has been lodged in an interest yielding separate bank account as a trust money before the revocation of the banking licence of All States Trust Bank. He urged this Court to so hold and dismiss the appeal.

On its part, the 2nd Respondent, Central Bank of Nigeria admitted the position of 1st Respondent and fully supported the judgment of the Lower Tribunal. That by virtue of Exhibits A, A5, 46 and 47 admitted of the lower Tribunal showed that the 1st Respondent paid N2 Million for 1 million shares at the rate of N2 each in the initial public offer of the defunct All States Trust Bank directly to it. That the Appellant admitted it took over the Management of the defunct Bank as Liquidator after the revocation of defunct Bank Licence and before the batched initial public offer was concluded relying on page 122 of the record.

That the Interim Management Board of defunct All States Trust Bank Plc under the control and supervision of Appellant confirmed that the sum of N2,441,593.175.00 (Two Billion, Four Hundred and Forty One Million, Five Hundred and Ninety-Three Thousand, One Hundred and Seventy Five Naira only representing subscription monies paid by subscribers directly to the defunct bank was in possession and in the vault of the All States Trust Bank now defunct taken over by the Appellant. The 2nd Respondent relied on page 188 of the record.

The Appellant’s Replies to the Briefs filed by 1st and 2nd Respondents are a rehash of the main Brief. The Appellant’s Replies to the 1st and 2nd Respondents’ Briefs of Arguments are hereby discountenanced.

I am of the settled view that all the submissions made on behalf of the Appellant cannot avail the Appellant. If as submitted by the Appellant the proceeds of shares by subscribers including 1st Respondent as investment in the defunct All States Trust Bank are not “Deposit” or “Insurable Deposits” for which Appellant has responsibility and if according to the Appellant, taking over a failed Bank is not concerned with “investors in shares” but with depositors, then the Appellant has no right to keep the 1st Respondent’s money and that of other investors since the money was kept in an escrow account as directed by the central Bank, the monies collected as proceeds for subscription for the shares of All States Trust Bank now defunct cannot be part of assets and liabilities of the defunct Bank to be administered or shared out to creditors of the defunct Bank under Sections 26, 27, 46 of the Nigeria Deposit Insurance Corporation Act and Section 494(l) of the Companies and Allied Matters Act.

The monies paid to buy shares in the defunct Bank was met intact by Appellant and Appellant took the money over. The Appellant thereby became a trustee for the investors in shares of the defunct bank because the defunct Bank did not deal with the shares investors monies and did not spend it including that of the 1st Respondent before its (defunct bank) licence was withdrawn. The Appellant had no business keeping the subscription monies paid by the subscribers which was not yet and was never part of the shareholders’ funds or monies or creditors/depositors fund of the defunct Bank. No Share Certificate was issues to 1st Respondent as the IPO was not processed and concluded before the end came for the defunct Bank.

The 1st Respondent was therefore entitled to be fully refunded his N2 Million and accrued interest on it since the Appellant came into possession of the Appellant’s monies and indeed all the subscribers in the category of the 1st Respondent.

It is repugnant to good conscience and equity for Appellant to retain the subscribers’ monies which was confirmed by the Apex Bank, the Central Bank of Nigeria. The Appellant cannot hide under the cloak of technicalities to escape liability to pay or refund the Appellant’s money with interest. See pages 171 – 197 of the record which were all Exhibits at the lower Tribunal.

The decision of the lower Tribunal, is fully supported by a community reading of xhibits A, A1, A2, A3, A4, A5, A6, A7, B, B1, C, D, D1, particularly Exhibits A6 and A5 all showing glaringly that 1st Respondent and N2 Million to All States Trust Bank into its account (the defunct Bank) at TRADE FAIR BRANCH and Bank Teller duly stamped and authenticated Exhibit A6 was issues in favour of Appellant. What is more, Exhibit A5 from Standard Trust Bank showed payment of N2 Million to All States Trust Bank earlier on 12/08/2005. Thus the oral and documentary evidence before the Tribunal fully supported the judgment of the lower Court delivered on 3rd July, 2008.

All arguments raised and point of law canvassed by Appellant’s learned Counsel are of no moment as they do not support the case and stance of the Appellant. The Appellant’s issues 2 and 3 are also resolved against the Appellant.

Consequently Appellant’s appeal is devoid of merit and the Appellant’s appeal is hereby dismissed in its entirety. The judgment of the lower Tribunal ordering the Appellant to pay the sum of N2,000,000.00 (Two Million Naira) to the 1st Respondent – HON. FEMI DAVIES and 2% above MPR from March, 2006 i.e. the day the Appellant took over ALL STATES TRUST BANK until the full liquidation of the principal sum is hereby affirmed.

The Appellant shall pay costs of N250,000.00 (Two Hundred and Fifty Thousand Naira) to the 1st Respondent only.

ABOKI, J.C.A.

I had the privilege of reading before now, a draft of the lead judgment just delivered by my Learned Brother PETER OLABISI IGE, JCA.

His Lordship has prudently and diligently dealt with the issues that arose for determination.

I agree with his reasoning and conclusion that the appeal lacks merit and ought to be dismissed. These findings and conclusions flowed from the evidence adduced at the trial.

It is on account of this that I also find the appeal to be devoid of merit and same is accordingly dismissed.

I abide by the orders contained in the lead judgment.

MUSTAPHA, J.C.A.

I read a draft copy of the judgment just delivered by my learned brother, Peter Olabisi Ige, JGA. I agree with the reasoning and conclusion.

I abide by the consequential orders made therein including the order for costs.

Appearances:

Orji D. Emole, Esq. with him, A. Ogbontolu, Esq. and T. T. Olasiyan, Esq. For Appellant(s)

Bola Aidi, Esq. with him, J. B. Abbey – for 1st Respondent.

F. U. Oraekyi, Esq. with him, Clement Gbadamosi – for 2nd Respondent.

Tunde Arowolo, Esq.- for 7th Respondent. For Respondent(s)