IGBRUDE v. ECOBANK LTD & ORS

CITATION: (2018) LPELR-45563(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON FRIDAY, 11TH MAY, 2018Suit No: CA/L/61/2015

Before Their Lordships:

TIJJANI ABUBAKAR Justice, Court of AppealBIOBELE ABRAHAM GEORGEWILL Justice, Court of AppealABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice, Court of Appeal

BetweenMRS MINNIE AJUWEDE IGBRUDE - Appellant(s)

And1. ECOBANK LTD2. ASSET MANAGEMENT CORPORATION OFNIGERIA3. SECURITIES AND EXCHANGE COMMISSION4. CENTRAL BANK OF NIGERIA

- Respondent(s)

RATIO DECIDENDI

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1. ACTION - PRE-ACTION NOTICE: Principles guiding the issuance of a pre-action notice"The contention herein is whether the letter of 26th August, 2013 qualifies as a pre-action notice. A pre-action notice in a statute is mandatory and must becomplied with. It is tantamount to a condition precedent to the filing of an action; it also must be definitive and contain relevant facts to the intending action.See ZAMFARA STATE GOVERNMENT & ANOR V UNITY BANK PLC & ANOR; AMADI v NNPC (2000) 10 NWLR (PT.674) 76. PETER V. NNPC (supra).Section 289 (1) of the ISA is reproduced below: "A person aggrieved by any action or decision of the commission under this Act, may institute an action in thetribunal or appeal against such decision within the period stipulated under this act: Provided that the aggrieved person shall give to the commission 14 daysnotice in writing of his intention to institute an action or appeal against its decision."This is in respect of the 3rd Respondent and is a condition precedent. The 2nd Respondent AMCON also in Section 43(2) of the AMCON Act, 2010 stipulates that:"An action shall not be brought or commenced against the Corporation until after the expiration of 30 days notice in writing to the corporation giving details ofthe alleged wrong date and remedy sought." Below is a copy of the letter from pages 37 - 45 of the record and extracts of the letter shows that it was addressedto "the Managing Director, Ecobank" and from the contents it is a complaint against acts of mismanagement of margin facility and a history from start to thatdate. It is in form of a legal opinion the Appellant's counsel even though at the end it demands a reversal of the transaction and principal for non-compoundedinterest in the sum of N67,800,00. It even suggests an independent legal advice on the matter and copies were sent to all the Respondents to be as at thenalbeit for their information purpose. The letter is reproduced below:"MUSTARD & MUSTARD COURTVIEW CHAMBERSBARRISTERS & AIKUXURIE ADOMINION HOUSE (2ND FLOOR)207 IGBOSERE ROAD,LAGOS ISLAND,LAGOS, NIGERIA26th August, 2013TELEPHONE: + 234(0)7030082386E-MAIL: mail@mustardsolicitors.comwww.mustardsolicitors.comThe Managing DirectorEcoBank PlcAhmadu Bello Way,Victoria IslandLagos.Dear Sir,MRS. MINNIE AJUWEDE IGBRUDE: OCEANIC BANK INTERNATIONAL PLCACCOUNT No: 201098809We are solicitors to Mrs. Minnie Ajuwede Igbrude ("our Client") and write in respect of the above account maintained with Oceanic Bank International Plc("OBIP"), Asaba 1 office, 264, Nnebisi Road, West End, Asaba Detta State. Being the successor in title of OBIP, we write to bring to your attention the marginfacility purportedly granted to our client. It would appear that the margin facility agreement has been assigned to the Asset Management Corporation of Nigeria,("AMCON"). As a result, a solicitor acting on the instructions of AMCON sent a pre-action protocol to our client demanding the sum of N117,371,827.91 (OneThousand, Eight Hundred and Twenty-Seven Naira, Ninety-One Kobo) as the outstanding indebtedness' on the account. However, a review of the documentsforward to our offices in respect of the transactions shows that the said margin facility agreement constitutes a serious breach of the banker/customerrelationship existing between our client ad OBIP which has resulted in serious pecuniary loss, hardship and psychological trauma to our client. .................Could it be that the report to the CBN on the margin facility granted to our client was dressed up as to escape scrutiny? Or could it be that CBN, as a regulatorthat is expected to patrol the financial perimeter in their supervisory capacity, failed to notice the aberration and therefore failed in their duty to protectvulnerable consumer of financial products such as our client? A host of other interesting questions agitating the mind are deferred and would be raised at theappropriate forum where it becomes necessary. In the circumstances, Eco Bank Plc, as the acquirers of OBIP, is again urged to reverse the purported marginfacility transaction and pay our client the N30,000,000.00 (Thirty Million Naira) credit balance standing in her account prior to the purported margin facilityagreement with 21% interest per annum. In view of the foregoing, kindly make your cheque available to our client through this law firm for the sum ofN67,800,000.00 (Sixty-Seven Million, Eight Hundred Thousand Naira) being the principal and non-compounded interest. The expeditious resolution of our client'scomplaint is strongly advised in view of the utter breach of the judiciary duty by her bankers. Your are at liberty to seek independent legal advice on the issue.We look forward to receiving from you within 21 days of receipt of this communication failing which our client shall review the option at her disposal withoutfurther course.Yours faithfully,MUSTARD & MUSTARDAbraham NnadiManaging PartnerCC:1. Central Bank of NigeriaConsumer Protection DepartmentCentral Business DistrictGarki, Abuja.2. Securities & Exchange Commission3 Idejo Street, Off Adeola Odeku StreetLagos.3. Asset Management Corporation of Nigeria8th Floor, Mulliner Towers39 Alfred Rewane RoadIkoyi, Lagos."The above letter in my view is neither a call to AMCON nor SEC; it is mainly to the bank. I have read the case of AMADI v. N.N.P.C. (supra) and I am still of theview that it is distinguishable. The letter must be written intentionally to the corporation i.e. regulatory bodies. The demand therein is to the 1st Respondentwhile the demands ought to be different since each of these statutory bodies have their different functions and roles. What exactly is demanded of them is notstated but what the Appellant wants from the 1st Respondent.I am afraid I find this letter defective and in this regard, I tow the line of the tribunal.The document does not give an intention to file proceedings and I also agree with the 3rd Respondent counsel that the last paragraph states what the demandsare and from whom the result is expected. Where a statute states out requirements to be met, a failure or incomplete obedience will render such an actincompetent. See UDOEKA & ORS V ISIKOBOO & ORS (2012) LPLER - 9690 (CA).In the case of OKEREKE v YAR'ADUA & ORS [2008] 12 NWLR (PT.1100) 95 it was stated per ONNOGHEN, JSC that:'...where legislation lays down a procedure for doing a thing there should be no other method of doing it..."I am fortified in my thoughts through the dictum of EKPE, JCA in the case of IKEDURU LOCAL GOVERNMENT AREA V BARR. KENNETH C. UZOECHI (2013) LPELR -22511 (CA) where he held that:"Regulations of the right of access to Court abound in the rules of procedure and are legitimate...In a situation where a pre-action notice is prescribed by anenactment, where the requirement of the notice is that it should be served on a particular person, service on any person other than the person stipulated is anon-compliance with the provision."I therefore resolve this issue against the Appellant."Per OBASEKI-ADEJUMO, J.C.A. (Pp. 32-39, Paras. F-A) - read in context

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2. PRACTICE AND PROCEDURE - ABUSE OF COURT/JUDICIAL PROCESS(ES): What constitutes abuse of Court process"Abuse of Court process has been defined in a host of cases and in different scenarios but the most direct is the improper use of legitimate Court process andthe effect is liable to dismissal. It is a fundamental defect which is not an irregularity that can be pardoned, it leads to a dismissal of the process. See OGBORU &ANOR v. UDUAGHAN & ORS (2010) LPELR -3938 (CA); ALHAJI MUHAMMADU MAIGARI DINGYADI v INEC (supra); IGBEKE V. OKADIGBO & ORS (2013) LPELR -20664 (SC). Therefore it's the facts, reliefs and parties of each case that would determine if an abuse has occurred. The reliefs in both the IST/LA/OT/2013 andFHC/L/CS/228/14 here in have been reproduced thus:?IST/LA/OT/2013"27. Wherefore the Applicant claims against the Respondents jointly and severally as follows:i. A DECLARATION that the purported margin facility agreement was entered in breach of the CBN/SBC Rules & Regulation and is therefore null and void abinitio.ii. A DECLARATION that the N30,000,000.00 removed from the Applicant's bank account with Oceanic Bank International Plc for the purchase of shares is nulland void and the debiting should be reversed and the Applicant's account credited.iii. AN ORDER directing the Respondents, especially the 2nd Respondent to desist from demanding and or harassing and or attempting to compel the Applicantto pay any monies to them whatsoever as a result of the transaction/subject matter of this proceedings.iv. AN ORDER directing the Respondents to pay to the Applicant the sum N450,000,000.00 (Four Hundred and Fifty Million Naira) for illegal misappropriation andconversion.V. AN ORDER directing the Respondents to pay the Applicant the sum of N250,000,000.00 (Two Hundred and Fifty Million Naira) being exemplary andaggravated damages.vi. 21% interest on Judgment sum from the date of Judgment until date when the sun shall be liquidated.FHC/L/CS/228/12ENDORSEMENT TO BE MADE ON THE WRIT BEFORE ISSUE THEREOF. Pg.130.i. The sum of N100,000,000.00 (One Hundred Million Naira) for breach of contract of the banker and customer relationship existing between the Plaintiff and 1stDefendant for willful misrepresentation, deceit, breach of trust and other forms of unfair commercial practices.ii. The sum of N100,000,000.00 (One Hundred Million Naira) for putting the Plaintiff under intense pressure to repay moneys resulting from alleged contractentered in breach of duty and banker and customer relationship, harassing, distressing and annoying the Plaintiff and thereby caused and/or aggravated healthissues in addition to pecuniary loss.iii. The sum of N200,000,000.00 (Two Hundred Million Naira) from the 3rd and 4th Defendants for failure to monitor and enforce regulatory regime designed andput in place to protect financial market users such as the Plaintiff.iv. The sum of N50,000,000.00 (Fifty Million Naira) being exemplary and aggravated damages.v. 21% interest of Judgment sum from the date of judgment until date when the sum shall be liquidated. There is a consensus that the parties, subject matterand facts in the two cases are the same. It is the reliefs claimed that is in contention. A glossary look at these reliefs shows that the reliefs claimed in theFederal High Court case is largely for damages against same defendants for breach of contract, failure to monitor the facility, for misappropriation, conversionand exemplary and aggravated damages. While the reliefs claimed before the tribunal is for: declarations for the margin facility to be declared void, a reversalrepayment, and payment for illegal misappropriation and exemplary and aggravated damages and interest of 21%. The reliefs claimed are very similar exceptfor the figures claimed and semantics.These reliefs are predicated on the management of the margin facility and the resulting effect. They run the risk of having contrary decisions on the sameissues. See UMEH V IWU (supra). All the conditions for abuse of Court process are present. There is multiplicity of actions in different venues; same opponentson same subject matter, on same issues. See ALLANAH & ORS V KPOLOKWU & ORS (2016) LPELR-40724 (SC).The point was made clearer in the case of OGOEJEOFO V. OGOEJEOFO (2006) 3 NWLR (PT. 996) 206 where SANUSI, JSC held that:"...these features are: (i) filing of multiplicity of actions on the same subject matter against the same opponents on the same issues or numerous actions on thesame matter between the same parties even there is in existence, a right to commence the action (ii) Instituting different Courts even though on different ondifferent grounds (iii) Where two or more similar, processes are used in respect of the exercise of the same right for instance, a cross appeal and a Respondent'snotice (vi) Where two actions are instituted in Court the second action is prima facie vexatious and an abuse of Courts process..."Per OBASEKI-ADEJUMO, J.C.A.(Pp. 25-29, Paras. A-B) - read in context

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3. TRIBUNAL - INVESTMENTS AND SECURITIES TRIBUNAL: Extent of the jurisdiction of the Investment and Securities Tribunal"The Appellant's claim at the IST is captured in paragraphs 9, 10, 11, 12, 13, 14, 15, 16 and it shows a banker-customer relationship with the Appellant and anexisting margin facility approved by the bank then Oceanic bank that later went bad. She had noticed that the facilities was to trade in shares and a one BFCLwas trading on behalf of the bank, the facility was not managed properly and that Appellant was said to have incurred heavy losses being a loan facility she wascalled upon to redeem same, hence this action.One thing is clear here it is a banker customer complaint even though there was a stock trading but it's not a direct agreement with the operator. The issue hereis damages for wrongful management of portfolio this is gleaned from paragraph 9-20 and 25-27 i-vi of the claim of the Appellant/Applicant and reasons forclaiming filed at the Tribunal on 15/5/14, at pages 1- 4 of the record herein reproduced:CA/L/61/15CLAIM OF THE APPLICANT AND REASONS Investment and Securities Tribunal FOR CLAIMING:9. The Applicant was a customer of the said Oceanic Bank International Plc Asaba 1 Officer 264, Nnebisi Road, West End, Asaba Delta State and operatedaccount No: 20109809 before its distress and acquisition.10. The Appellant opened and maintained a savings account with Oceanic Bank International Plc circa 2004 on the 8th November 2007, an official of OceanicBank International Plc, Ms. Ifeona Okereke, who know the credit balance of over N30,000,000.00 (Thirty Million Naira) standing in the said account, tookadvantage of the aforesaid information on behalf of the Oceanic Bank International Plc and visited the Applicant in her offices to marked financial products toher.11. When the Applicant asked what it was all about, Ms. Okereke informed the Applicant of the lucrative investment opportunity that was being offered byOceanic Bank International Plc which she wanted the Applicant to participate in. Noticing that the Applicant was not enthusiastic about it, Ms. Okereke did allshe could to persuade the Applicant by affirming the genuineness of the investment and the yield which was sure to come given the kind assistance she hadreceived from the Applicant in the past, Ms. Okereke told the Applicant to trust her on this: she would not be instrumental to anything that would hurt theApplicant's interest. The Applicant eventually relented and agreed to sign the relevant portions of the completed standard form agreement for the marginfacility as pointed out by Ms. Okereke.12. The Applicant also signed application forms which allocated different units of Fidelity Bank shares to her in different names including her business name,Vinrota Enterprises.13. By the following day, 9 November 2007 an undated application titled "Request for Margin Facility" was approved by senior official of OBIP. It detailed theunits of Fidelity stock to be bought. On the same day, the term paper containing the Offer of Margin facility of N70,000,000.00 (Seventy Million Naira) wasissued. The N30,000,000.00 (Thirty Million Naira) in the Applicant's saving account served as the equity contribution as well as security for the N100,000,000.00required for the stock purchase. The applicant did not own share certificates which could be deposited as collateral.14. The Applicant wrote her name and signed to accept the terms and conditions of the offer as stated in the term paper. The handwriting in this portion of theagreement is notably different from those used in completing the form. This gives credibility to the Applicant's statement that the bank official completed theforms.15. There is also a custodial agreement that gives Oceanic Bank International Plc power to invest the funds in commercial papers. Oceanic Bank International Plcwas to maintain safe custody of the commercial papers and entitled to receive the repayment of the investment on behalf of the Applicant. Numerous provisionsin the agreement were designed to protect Oceanic Bank International Plc by holding them harmless in the event of loss or damage resulting from the operationof the account.16. The statement of account printed on the 17 June, 2006 showed that BFCL Assets & Securities Ltd ("BFCL") had been trading on behalf of the Applicant. Acloser security of the documents made available to the Applicant on that day shows that BFCL was trading in First Bank shares on the Applicant's behalf. Apaper annexed to the statement of account disclosed that the Applicant was not allotted all the shares in the application form. The money returned for the un-allotted shares "...was paid into her margin account, it nilled off the debit interest on her account.'17.18. Worried by the developments in the stock market, the applicant visited the offices of Oceanic Bank International Plc on the 16 December, 2008 to ascertainhow the stock was performing. Her worst fear were confirmed by the equity portfolio printout, details of shares actually allotted and the CSCS Ltd investoraccount details. It is also clear from these documents that the margin facility was being used to trade on the shares of other companies, particularly First Bankshares contrary to the terms of the margin facility contract.19. The Applicant challenged officials of Oceanic Bank International Plc asking why they failed to sell the shares all the while. Failing to receive satisfactoryanswer, the Applicant demanded the stocks be sold and the money returned to her account. Obviously, her agents had gone rogue and disregarded theinstructions stated in the purported margin contract.20. Having treated the account as one of the toxic assets of the Bank, the Respondent apparently assigned the debt to the 2nd Respondent. With unreasonablezeal, the 2nd respondent deployed every means to bound, harass and annoy the Applicant in a bit to make her pay a debt that resulted from speculative andrisky behavior of Oceanic Bank International Plc.27. Wherefore the Applicant claims against the Respondents jointly and severally as follows:i. A DECLARATION that the purported margin facility agreement was entered in breach of the CBN/SEC Rules & Regulation and is therefore null and void abinitio.ii. A DECLARATION that the N30,000,000.00 removed from the Applicant's bank account with Oceanic Bank International Plc for the purchase of shares is nulland void and the debiting should be reversed and the Applicant's account credited.iii. AN ORDER directing the Respondents, especially the 2nd Respondent to desist from demanding and or harassing and or attempting to compel the Applicantto pay any monies to them whatsoever as a result of the transaction/subject matter of this proceedings.iv. AN ORDER directing the Respondents to pay to the Applicant the sum N450,000,000.00 (Four Hundred and Fifty Million Naira) for illegal misappropriation andconversion.v. AN ORDER directing the Respondents to pay the Applicant the sum of N250,000,000.00 (Two Hundred and Fifty Million Naira) being exemplary andaggravated damages.vi. 21% interest on Judgment sum from the date of judgment until date when the sum shall be liquidated.Against the above it is therefore important to see if the tribunal is vested with powers to entertain this dispute. Section 274 of the ISA establishes the tribunal.Jurisdiction is so important that it is the fundamental and goes to the competence of the Court or tribunal. See UBA V DAVANDY FINANCE AND SECURITIES LTD(2015) LPELR-25769 (CA). It is also the authority which a Court has to decide matters before it or to take cognisance of matters presented before it for itsdecision. See the NDAEYO V OGUNAYA (1977) 1 SC 11; DAPIANLONG v DARIYE [2007] 4 SC (PT.111) 118; TETRAZINNI FOODS LTD V ABBACON INVESTMENT LTD& ORS (2015) LPELR - 25007 (CA).Section 284(1) (a) (i-iv), (b) - (f), Section 2 & 3 of the ISA sets out clearly the questions 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 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 organization;b) the commissions and self-regulatory organizationc) a capital market operator and the commission;d) an investor and the commission;e) an issuer of securities and the commission;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 the act of the National Assembly.3) In the exercise of its Jurisdiction, the tribunal shall have power to interpret any law, rule, or regulation as may be applicable.From the above the Appellant's claim does not fit in and if under Subsection (1) of the scheme is not a scheme within the capital market scheme, the Appellantis not a bank, capital market operator one of the parties under these category. The crux of the Appellant's complaint has not been determined by the Securitiesand Exchange Commission (SEC), it's a direct complaint. Furthermore, this is strictly a complaint on how the margin facility was mismanaged and to avoidliability arising therefrom. I am in agreement with the tribunal that these are regular claims to be brought in the regular Court.I further find on closer perusal that both the subject matter and the parties are not within the jurisdiction of the tribunal. See AMADI V. OBIAJUNWA (2016)LPELR-40461 (CA) relying on the Supreme Court pronouncement in COTECNA INT'L LTD v CHURCHGATE NIG LTD & ANOR (2010) LPELR - 897 (SC) 45 - 46, parasF- C where ADEKEYE, JSC reasoned that:"It is a trite law that for a Court to be competent and have jurisdiction over a matter, proper parties must be identified. Before an action can succeed, the partiesto it must be shown to be proper parties to whom rights and obligations arising from the cause of action attach. The question of proper parties is a veryimportant issue which would affect the Jurisdiction of the Court as it goes to the foundation of the suit in limine. Where the proper parties are not before theCourt then the Court lacks jurisdiction to hear the suit..."AGUBE, JCA held in the main judgment that:"There is no doubt that jurisdiction is the life blood and font et origo of the exercise of Judicial power and that, being the threshold of Judicial power andjudicialisim and by extension to extrinsic adjudication, parties cannot either by connivance, acquiescence or collusion confer same on a Court that is not seisedof such jurisdiction. See OKOLO V UNION BANK OF NIG PLC [2004] ALL FWLR (PT 197) 981; FGN v OSHIOMHOLE (2004) 3 NWLR (PT.86) 305 at 324, para B;MOBIL PRODUCING (NIG) LTD v MONOKPO (2004) ALL FWLR (PT 195) 575 at 657..."?At this junction and in the light of paragraph 1-4 of Appellant's claim before the tribunal; it is beyond question and arguments of the Appellant that the tribunallacked jurisdiction in all ramification."Per OBASEKI-ADEJUMO, J.C.A. (Pp. 10-19, Paras. B-F) - read in context

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ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

(Delivering the Leading Judgment): This is an appeal

against the Ruling of the Investment and Securities

Tribunal, holden at Lagos and delivered on the 8th of

December, 2014 by the Honourable Chairman of the

tribunal - DR. NGOZI CHIANAKWALAM in respect of the

preliminary objection filed by the 1st, 2nd & 3rd

Respondents. The Appellant been dissatisfied with the

decision filed a Notice of Appeal on 9th February, 2015.

Parties joined issues on their briefs.

The Appellant filed its brief on 18th March, 2015 wherein 3

issues were formulated for determination thus:

1. Whether the Investment and Securities Tribunal

has jurisdiction to determine the issues placed before

the tribunal.

2. Whether this case is an abuse of Court processes as

contemplated in the Supreme Court case of TOMTEC

(NIG) LTD v FHS [2009] 18 NWLR (PT.1173) 358?

3. Whether the letter dated 26th August 2012 which

was equally sent to the 2nd, 3rd and 4th Respondent

is a valid pre-action notice in the circumstances of

this case.

The Appellant also filed a reply to the 1st, 3rd and 4th

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Respondent filed on 20/2/2017 but deemed 8/2/18. The 1st

Respondent's brief was filed on 3rd April, 2016 and it

formulated 3 issues for determination:

1. Whether the Investment and Securities Tribunal

has Jurisdiction to determine the Appellant's reliefs

as presented at the lower tribunal?

2. Whether the Investment and Securities Tribunal

rightly dismissed this suit for bring an abuse of Court

process in view of suit number FHC/L/CS/228/2014 at

the Federal High Court, Lagos division between the

parties over same set of facts?

3. Whether the letter dated 26 August 2015

constitutes a valid pre-action notice to the 2nd and

3rd Respondents?

2nd Respondent's brief is filed on 21/9/15 but deemed

8/2/18 and formulated 3 issues:

1. Whether the honourable Tribunal possesses the

requisite Jurisdiction to adjudicate this matter.

2. Whether the suit constitutes a flagrant abuse of

Court process

3. Whether a valid pre-action notice was issued to the

2nd Respondent.

The 3rd Respondent filed on 22/2/16 but deemed properly

filed 8/2/18 wherein 3 issues were also formulated:

1. Whether the failure and/or the refusal of the

plaintiff

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to issue the 3rd Respondent with a notice in writing

of her intention to institute action against it as

required by Section 289 of the Investment and

Securities Act, 2007 does not render the Appellants

suit incompetent?

2. Whether from the pleadings of the claimant the

claimant has disclosed any cause of action as to

confer Jurisdiction on the Investment and Securities

Tribunal.

3. Whether the Appellant's institution of suit No:

FHC/L/CS/228/2014 at the Federal High Court as well

as the subsequent filing the suit giving rise to this

appeal at the lower tribunal does not amount to an

abuse of Court process.

The 4th Respondent brief is filed 23/2/16 but deemed

8/2/18 wherein 3 issues were formulated:

1. Whether having regard to the Applicant/Appellant's

claim vis-à-vis the provisions of the Investment and

Securities Act, 2007, the lower tribunal (IST) was

right in ruling that it lacked Jurisdiction to entertain

the application?

2. Whether the lower tribunal (IST) was right in

ruling that the Applicant/Appellant's action constitute

an abuse of Court process for instituting two separate

actions in two different Courts, i.e. suit No:

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FHC/LCS/228/2014 before the Federal High Court,

Lagos, and suit No: IST/LA/OA/03/14 before the IST?

3. Whether having regard to the Applicant/Appellant's

letter dated 26th August, 2013 sent to the 2nd - 4th

Respondent the lower tribunal, 1ST, was right in

ruling that it did not constitute a valid pre-action

notice as required by applicable statutes?

The parties' issues are the same but for semantics and

phraseology. Therefore the issues as formulated by the

Appellant are apt in the resolution of this appeal and same

is hereby adopted.

ISSUE 1

Appellant's counsel submitted that the tribunal declined

jurisdiction to determine the case given the issue of margin

facility and parties before the tribunal and that the tribunal

also held that the Appellant's claims do not qualify to be

considered a capital market dispute. He referred to Section

284(1) of the Investment and Securities Act, 2007(ISA) and

contended that the provision does not provide a basis for

disqualifying the Appellant's claim as been outside the

purview of Section 284 (1) of the ISA. Counsel contended

that Section 284(1)(a) provides a category of persons who

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can approach the tribunal to present a claim and such can

only be emanating from a decision or determination of the

commission in the operation and application of the ISA and

that by Section 284(1)(b)-(e) the tribunal shall exercise

jurisdiction to determine any matter presented by such

persons. He opined that this should be the proper

construction to be placed on this provision of the ISA.

Appellant's counsel contended that how the breach of

statutory provision metamorphosed into a breach of

contract is strange and disturbing. That the tribunal lost

sight of the provision of Section 294 ISA. He referred to

case of OSONDU V FRN (2000) 12 NWLR (PT 682) 483

at 491. On interpretation of statue he contented further

that Section 104(1) ISA empowered the commission to

make regulations to provide for margin requirements and

that pursuant to both provisions, a code which provides for

margin requirement or the amount of credit to be extended

in addition to regulations to govern how much credit to be

extended to securities dealers and member companies

engaged in securities lending was made. That code he

submits is the CBN/SEC guidelines and rules on margin

lending. Appellant

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counsel submits on types of cases the IST deal with. He

refers to capital issues and that the context of this action is

whether the requirement stipulated in the CBN/SEC

guidelines and rules on margin lending were followed and

therefore make his claim a capital market claim.

On proper parties counsel contended that he qualified as an

investor having sunk over N30m into shares of Fidelity

bank shares and fit the parties before the tribunal since the

commission is a party as well as a defendant which

completes the forum.

The 1st Respondent counsel submitted that it is

misconceived for the Appellant to state that by Section 104

of the ISA the tribunal is conferred with jurisdiction over

marginal facilities granted for purchase of securities. He

contended that the position of the law is as espoused in

various cases and that the enabling law has to be examined

in the light of the relief sought by a plaintiff on its

originating process. He cited the cases of AMAECHI V.

INEC (2007) 9 NWLR (PT.1040) 504 at 533 - 534,

paras E - A; PDP V SYLVA 7 ORS (2012) 13 NWLR

(PT.1316) 85 at 127, paras D- F. He referred to the

Appellant's claim before the

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1st Respondent and submits that from paragraph 27 of the

originating application the reliefs bothers on banker-

customer relationship which is based on the margin facility

agreement between 1st Respondent (bank) and Appellant

(customer) for purchase of shares. That the grouse in the

matter is that the monies granted on the margin facility for

purchase of shares on her behalf were improperly managed

by the 1st Respondent, which constitute an alleged breach

of the margin agreement entitling her to damages. And

therefore does not fall within Section 284 which defines the

jurisdiction. In Section 284(1) (a)(i-iv) as to nature of

dispute while the second limb in Section 284(1)(b)-e) that

the jurisdiction of the IST is first subject to the SEC

decision or determination of any dispute between (i-iv).

1st Respondent counsel posit that the IST has exclusive

jurisdiction to hear not only decision from SEC but to hear

entertain and determine any question of law or dispute

involving those mentioned in Section 284 1(b)(c)(d) (e)(f).

He submitted that the tribunal has jurisdiction over only

the 3rd Respondent but not over the 1st, 2nd & 4th

Respondent.

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563(

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He relied on the cases of IPADEOLA V OSHOWOLE

(1987) NWLR (PT 59) 18; MR EZE OKOROCHAS v

UNITED BANK FOR AFRICAN PLC & ORS (2011) 1

NWLR (Pt.1228) 348; NOSPETCO OIL & GAS LTD V

OLORUNNIMBE & ORS (2011) LPELR-8933. He

further submitted that Section 104 and 294 of the Act are

not applicable.

In reply, Appellant's counsel reiterated with emphasis its

argument in its brief.

The 2nd Respondent counsel submitted that proceedings

without jurisdiction amount to nullity. He referred to the

cases of MADUKOLU v NKEMDILIM (1962) 2 SCNLR

341; PETROJESSICA ENTERPRISES LTD V LEVENTIS

TECHNICAL CO LTD (1992) 5 NWLR (PT.244) 675 at

693; CBN v SAP (NIG) LTD (2005) 3 NWLR (PT 911)

156; TUKUR v GOVERNMENT OF GONGOLA STATE

(1989) 4 NWLR (PT.117) 517 at 549 and aligned with

the arguments of the 1st Respondent's counsel.

The 3rd Respondent submitted on issue 2 in respect of

jurisdiction that the Appellant's pleading did not disclose

any cause of action and submitted along the lines of the 1st

Respondent's counsel. On Section 284 (1) & 289 of ISA that

there is no pleading from 1-5 of the records complaining of

any decision or action of 3rd Respondent that he seeks to

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challenge. That the only relevant offence is paragraph 24

and 25 iii of the claim, that no report was made to the 3rd

Respondent to warrant the institution of an action. He

referred to the case of MICHEAL V STATE (2002) 1

NWLR (PT 748) 500 at 511 and that the paragraphs 18

and 19 of Appellant's claim, but that there were no

particulars therein. He CITED FAWEHINMI V. AKILU

(1994) 6 NWLR (PT 351) 387 at 471-472; MIL ADMIN

AKWA IBOM STATE V OBONG (2001) 1 NWLR

(PT.694) 214; ANAMBRA STATE V OKAFOR (1992) 2

NWLR (PT.224) 396.

In reply the Appellant's counsel reiterated the argument as

contained in his brief.

4th Respondent counsel submitted on its issue 1 that

jurisdiction of a Court denotes the power of a Court or

tribunal to entertain a case or issue. He was of the same

legal submission with the 1st Respondent's counsel. He

referred to the case of OKOROCHA V. UBA PLC; WRPC

LTD v AGBUJE (2005) 5 NWLR (PT 917) 68 that the

writ of summons or statement of claim determines the

jurisdiction. He contended that the Appellant failed to show

how Section 104 (1) applied to margin facility. He relied on

VALUE LINE SECURITIES INVESTMENT LTD V

OBUBOBGBUNAM J

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ANAKWUBE (2015) LPELR - 24486 (CA)

Appellant counsel in reply to 4th Respondent submitted

that the case of NOSPETCO OIL & GAS LTD V PRINCE

MATILUKO OLORUNNIMBE & ORS (supra) applied to

case and not the submissions of 4th Respondent counsel.

RESOLUTION

The Appellant's claim at the IST is captured in paragraphs

9, 10, 11, 12, 13, 14, 15, 16 and it shows a banker-customer

relationship with the Appellant and an existing margin

facility approved by the bank then Oceanic bank that later

went bad. She had noticed that the facilities was to trade in

shares and a one BFCL was trading on behalf of the bank,

the facility was not managed properly and that Appellant

was said to have incurred heavy losses being a loan facility

she was called upon to redeem same, hence this action.

One thing is clear here it is a banker customer complaint

even though there was a stock trading but it's not a direct

agreement with the operator. The issue here is damages for

wrongful management of portfolio this is gleaned from

paragraph 9-20 and 25-27 i-vi of the claim of the

Appellant/Applicant and reasons for claiming filed at the

Tribunal on 15/5/14, at pages 1- 4 of the record herein

reproduced:

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CA/L/61/15

CLAIM OF THE APPLICANT AND REASONS

Investment and Securities Tribunal FOR CLAIMING:

9. The Applicant was a customer of the said Oceanic

Bank International Plc Asaba 1 Officer 264, Nnebisi

Road, West End, Asaba Delta State and operated

account No: 20109809 before its distress and

acquisition.

10. The Appellant opened and maintained a savings

account with Oceanic Bank International Plc circa

2004 on the 8th November 2007, an official of

Oceanic Bank International Plc, Ms. Ifeona Okereke,

who know the credit balance of over N30,000,000.00

(Thirty Million Naira) standing in the said account,

took advantage of the aforesaid information on behalf

of the Oceanic Bank International Plc and visited the

Applicant in her offices to marked financial products

to her.

11. When the Applicant asked what it was all about,

Ms. Okereke informed the Applicant of the lucrative

investment opportunity that was being offered by

Oceanic Bank International Plc which she wanted the

Applicant to participate in. Noticing that the

Applicant was not enthusiastic about it, Ms. Okereke

did all she could to persuade the Applicant by

affirming

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the genuineness of the investment and the yield

which was sure to come given the kind assistance she

had received from the Applicant in the past, Ms.

Okereke told the Applicant to trust her on this: she

would not be instrumental to anything that would

hurt the Applicant's interest. The Applicant

eventually relented and agreed to sign the relevant

portions of the completed standard form agreement

for the margin facility as pointed out by Ms. Okereke.

12. The Applicant also signed application forms which

allocated different units of Fidelity Bank shares to

her in different names including her business name,

Vinrota Enterprises.

13. By the following day, 9 November 2007 an

undated application titled "Request for Margin

Facility" was approved by senior official of OBIP. It

detailed the units of Fidelity stock to be bought. On

the same day, the term paper containing the Offer of

Margin facility of N70,000,000.00 (Seventy Million

Naira) was issued. The N30,000,000.00 (Thirty

Million Naira) in the Applicant's saving account

served as the equity contribution as well as security

for the N100,000,000.00 required for the stock

purchase. The

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CA)

applicant did not own share certificates which could

be deposited as collateral.

14. The Applicant wrote her name and signed to

accept the terms and conditions of the offer as stated

in the term paper. The handwriting in this portion of

the agreement is notably different from those used in

completing the form. This gives credibility to the

Applicant's statement that the bank official

completed the forms.

15. There is also a custodial agreement that gives

Oceanic Bank International Plc power to invest the

funds in commercial papers. Oceanic Bank

International Plc was to maintain safe custody of the

commercial papers and entitled to receive the

repayment of the investment on behalf of the

Applicant. Numerous provisions in the agreement

were designed to protect Oceanic Bank International

Plc by holding them harmless in the event of loss or

damage resulting from the operation of the account.

16. The statement of account printed on the 17 June,

2006 showed that BFCL Assets & Securities Ltd

(“BFCL") had been trading on behalf of the Applicant.

A closer security of the documents made available to

the Applicant on that day shows that BFCL was

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CA)

trading in First Bank shares on the Applicant's

behalf. A paper annexed to the statement of account

disclosed that the Applicant was not allotted all the

shares in the application form. The money returned

for the un-allotted shares “...was paid into her margin

account, it nilled off the debit interest on her

account.'

17.

18. Worried by the developments in the stock market,

the applicant visited the offices of Oceanic Bank

International Plc on the 16 December, 2008 to

ascertain how the stock was performing. Her worst

fear were confirmed by the equity portfolio printout,

details of shares actually allotted and the CSCS Ltd

investor account details. It is also clear from these

documents that the margin facility was being used to

trade on the shares of other companies, particularly

First Bank shares contrary to the terms of the margin

facility contract.

19. The Applicant challenged officials of Oceanic

Bank International Plc asking why they failed to sell

the shares all the while. Failing to receive satisfactory

answer, the Applicant demanded the stocks be sold

and the money returned to her account. Obviously,

her agents had gone rogue and

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CA)

disregarded the instructions stated in the purported

margin contract.

20. Having treated the account as one of the toxic

assets of the Bank, the Respondent apparently

assigned the debt to the 2nd Respondent. With

unreasonable zeal, the 2nd respondent deployed every

means to bound, harass and annoy the Applicant in a

bit to make her pay a debt that resulted from

speculative and risky behavior of Oceanic Bank

International Plc.

27. Wherefore the Applicant claims against the

Respondents jointly and severally as follows:

i. A DECLARATION that the purported margin facility

agreement was entered in breach of the CBN/SEC

Rules & Regulation and is therefore null and void ab

initio.

ii. A DECLARATION that the N30,000,000.00 removed

from the Applicant's bank account with Oceanic Bank

International Plc for the purchase of shares is null

and void and the debiting should be reversed and the

Applicant's account credited.

iii. AN ORDER directing the Respondents, especially

the 2nd Respondent to desist from demanding and or

harassing and or attempting to compel the Applicant

to pay any monies to them whatsoever as a result of

the

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transaction/subject matter of this proceedings.

iv. AN ORDER directing the Respondents to pay to the

Applicant the sum N450,000,000.00 (Four Hundred

and Fifty Million Naira) for illegal misappropriation

and conversion.

v. AN ORDER directing the Respondents to pay the

Applicant the sum of N250,000,000.00 (Two Hundred

and Fifty Million Naira) being exemplary and

aggravated damages.

vi. 21% interest on Judgment sum from the date of

judgment until date when the sum shall be liquidated.

Against the above it is therefore important to see if the

tribunal is vested with powers to entertain this dispute.

Section 274 of the ISA establishes the tribunal. Jurisdiction

is so important that it is the fundamental and goes to the

competence of the Court or tribunal. See UBA V

DAVANDY FINANCE AND SECURITIES LTD (2015)

LPELR-25769 (CA). It is also the authority which a Court

has to decide matters before it or to take cognisance of

matters presented before it for its decision. See the

NDAEYO V OGUNAYA (1977) 1 SC 11; DAPIANLONG v

DARIYE [2007] 4 SC (PT.111) 118; TETRAZZINI

FOODS LTD V ABBACON INVESTMENT LTD & ORS

(2015) LPELR – 25007 (CA).

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Section 284(1) (a) (i-iv), (b) - (f), Section 2& 3 of the ISA

sets out clearly the questions 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 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 organisation;

b) the commissions and self-regulatory organisation

c) a capital market operator and the commission;

d) an investor and the commission;

e) an issuer of securities and the commission;

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 the act of the

National Assembly.

3) In the exercise of its Jurisdiction, the tribunal shall

have power to interpret any law, rule, or regulation as

may be applicable.

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From the above the Appellant's claim does not fit in and if

under Subsection (1) of the scheme is not a scheme within

the capital market scheme, the Appellant is not a bank,

capital market operator one of the parties under these

category. The crux of the Appellant's complaint has not

been determined by the Securities and Exchange

Commission (SEC), it's a direct complaint. Furthermore,

this is strictly a complaint on how the margin facility was

mismanaged and to avoid liability arising therefrom. I am in

agreement with the tribunal that these are regular claims

to be brought in the regular Court.

I further find on closer perusal that both the subject matter

and the parties are not within the jurisdiction of the

tr ibunal . See AMADI V. OBIAJUNWA (2016)

LPELR-40461 (CA) relying on the Supreme Court

p r o n o u n c e m e n t i n COTECNA INT 'L LTD v

CHURCHGATE NIG LTD & ANOR (2010) LPELR - 897

(SC) 45 - 46, paras F- C where ADEKEYE, JSC reasoned

that:

“It is a trite law that for a Court to be competent and

have jurisdiction over a matter, proper parties must

be identified. Before an action can succeed, the

parties to it must be shown to be proper parties to

whom rights

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and obligations arising from the cause of action

attach. The question of proper parties is a very

important issue which would affect the Jurisdiction of

the Court as it goes to the foundation of the suit in

limine. Where the proper parties are not before the

Court then the Court lacks jurisdiction to hear the

suit…”

AGUBE, JCA held in the main judgment that:

“There is no doubt that jurisdiction is the life blood

and font et origo of the exercise of Judicial power and

that, being the threshold of Judicial power and

judicialisim and by extension to extrinsic

adjudication, parties cannot either by connivance,

acquiescence or collusion confer same on a Court that

is not seised of such jurisdiction. See OKOLO V

UNION BANK OF NIG PLC [2004] ALL FWLR (PT 197)

981; FGN v OSHIOMHOLE (2004) 3 NWLR (PT.86)

305 at 324, para B; MOBIL PRODUCING (NIG) LTD v

MONOKPO (2004) ALL FWLR (PT 195) 575 at 657..."

At this junction and in the light of paragraph 1-4 of

Appellant's claim before the tribunal; it is beyond question

and arguments of the Appellant that the tribunal lacked

jurisdiction in all ramification. This issue is therefore

resolved against the Appellant.

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ISSUE 2

The Appellant's counsel submitted that the tribunal held

that the action was an abuse of Courts process and it

amounted to multiplicity of actions based on the case of

TOMTEC NIG LTD v. FHA (2009) 18 NWLR (PT 1173)

358at 376 - 377. He distinguish the case at hand and

referred to the cases of OKORODUDU V. OKOROMADU

(1977) 3 SC 21; AKILU v. FAWEHINMI (NO.2) (1989)

NWLR (PT.102) 122; SARAKI V. KOTOYE (1992) 9

NWLR (PT.204) 156; AGWASIM & ANOR V. OJICHIE

& ANOR (2004) 10 NWLR (PT.882) 613; UMEH V.

IWU (2008) 8 NWLR (PT.1089) 225. He posit that

before making a decision the Court has to examine peculiar

facts and circumstances of each case and that it is not in all

case that the pendency of more than one suit will give rise

to an abuse of Court process. He cited C.O.M. INC V

COBHAM (2006) 15 NWLR (PT.1002) 283 at 305 - 306

and submitted that after comparing the claims in both suits

at the Federal High Court and the tribunal, the tribunal

concluded that they were the same and refused to be

persuaded by Appellant's arguments.

Appellant's counsel argued that the rights asserted at the

tribunal are different, separate and distinct from that

claimed

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at the Federal High Court. He distinguished both claims

and relied on HEDLEY BYRNE & CO LTD V HELLER &

PARTNERS (1964) AC 465; CAPARO INDUSTRIES V

DICKMAN (1990) 1 ALLER 568. Secondly Appellant's

counsel argued that the claim at the Federal High Court

will not provide sufficient remedy to him and the Appellant

would be disadvantaged in costs for damages awarded. He

relied on Section 251(1) of the 1999 Constitution (as

amended) which gives power to hear such relationship

vested in the Federal High Court; NDIC v OKEM

ENTERPRISES (2004) 10 NWLR (PT.880) 107;

JAMMAL STEEL STRUCTURES LTD v ACB LTD (1973)

ALL NLR (PT 2) 208; BRONIK MOTORS LTD v WEMA

BANK LTD (1983) 1 SCNLR 296. He referred to

preliminary objection filed by the 3rd Respondent and

submitted that it stated that the Federal High Court had

jurisdiction and that this fortifies its claim that if lumped

together it be struck out. He submitted further that Order

10 Rule 4 of the Federal High Court Civil Procedure Rules,

2009 contemplates a situation in which the judge can make

an order to separate same. He relied on COENEN V

PAYNE (1974) ALL ER 1109 at 1112.

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The 1st Respondent counsel submitted in opposition that

the law is settled as in the case of HRH OBA E.A. SAIKI &

5 ORS V ESHEVESHE NIGERIA LTD (2013) LPELR -

20739 (CA); PAVEX INT. CO. V I.B.W.A [1994] 5

NWLR (PT.347) 685 at 699, para D that what

constitutes an abuse of Court process is the multiplicity of

suits by the parties in respect of the same subject matter

and issues whether in the same Court or different Courts.

He submitted further that it's not disputed that there are

two parties in two cases pending and that all the reliefs

sought are predicated on conduct of the Respondents in

management of the margin facility. Much as this could lead

to different causes of action, he disagreed that this was an

apt case, that the reliefs can be claimed in one suit. He

submitted that the case of UMEH V IWU (supra) was

wrongly applied in this case and distinguished both and

contended vehemently that there was likelihood of two

conflicting decisions on the same sets of facts at the end of

trial. He relied on DUMEZ PLC v UBA PLC (2006) 14

NWLR (PT.1000) PG 515; AGWASIM v. OJICHIE;

TOMTEC NIG LTD V FHA (supra); UMEH V. IWU

(supra); ADETOUN V OLADEJI (NIG) LTD V N.B.PLC

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[2007] 5 NWLR [PT.1027] 415; amongst other cases.

The 2nd Respondent counsel submitted that the complaint

cannot be in two different Courts twice and that the case of

splitting jurisdiction does not arise here. He relied on

N.I.W.A V STB PLC (2008) 2 NWLR (PT 1072) 483. On

what constitutes abuse of Courts process he cited the cases

of AFRICAN REINSURANCE CORPORATION V JDP

CONSTRUCTION NIG LTD; NIGERIAN GENERAL

INSURANCE v BELLO (1994) 1 NWLR (PT 319) 207 at

2 2 1 ; P R O F A Y O D E L E A W O J O B I v D R

SAMUEL OSAIGBOVO OGBEMUDIA (1983) 8 SC 92;

LAWRENCE v NORREYS (1890) 15 APP. CAS. 210;

HAGGARG V FELICIER FRERRES (1892) AC 61. 2nd

Respondent counsel strongly submitted that the claims and

reliefs though worded differently amounts to an abuse of

Court process.

The 3rd Respondent counsel relied on the cases of HRH

OBA E.A. SAIKI & 5 ORS V ESHEVESHE NIGERIA

LTD; PAVEX INT. CO. V. I.B.W.A on what constitutes an

abuse of Court process. He stated that the facts of the case

leading to this appeal is an abuse of Courts process and

made submissions in line with the 1st, 2nd Respondent's

counsel.

4th Respondent counsel contended that this matter is on

all

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fours with the Supreme Court's judgment in ALHAJI

MUHAMMADU MAIGARI DINGYADI V. INEC (2010)

18 NWLR (PT.1224) 123; OKAFOR V. AG. ANAMBRA

STATE (supra); OKORODUDU V. OKOROMADU (1977)

3 SC 21; HARRIMAN V. HARRIMAN (1989) 5 NWLR

(PT 119) 6 at 16; OYEGBOLA V. ESSO WEST AFRICAN

INC (1966) 1 ALL NLR 170; ARUBO V. AIYELERU

(1993) 3 NWLR (PT.280) 126 at 142. Counsel submitted

that the tribunal's was right in its Ruling on the abuse of

Court process that the parties, subject matter and reliefs in

respect of the suits filed at the Federal High Court and the

one at the tribunal are substantially the same and that the

end result of the claim in the Federal High Court will still

achieve the aim of the Appellant (page 300 of the record).

Counsel citing the case of VALUE LINE SECURITIES

INVESTMENT LTD V OBUBODGBUNAM J .

ANAKWUBE (supra) submitted that Section 104 of the ISA

is not applicable or material to the determination of the

Appellant's claim for the margin facility contract that it is

mainly a loan facility agreement between the Appellant and

the 1st Respondent which does not come within the context

of Section 104 of the ISA.

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RESOLUTION

Abuse of Court process has been defined in a host of cases

and in different scenarios but the most direct is the

improper use of legitimate Court process and the effect is

liable to dismissal. It is a fundamental defect which is not

an irregularity that can be pardoned, it leads to a dismissal

of the process. See OGBORU & ANOR v. UDUAGHAN &

O R S ( 2 0 1 0 ) L P E L R - 3 9 3 8 ( C A ) ; A L H A J I

MUHAMMADU MAIGARI DINGYADI v INEC (supra);

IGBEKE V. OKADIGBO & ORS (2013) LPELR - 20664

(SC). Therefore it's the facts, reliefs and parties of each

case that would determine if an abuse has occurred. The

reliefs in both the IST/LA/OT/2013 and FHC/L/CS/228/14

here in have been reproduced thus:

IST/LA/OT/2013

"27. Wherefore the Applicant claims against the

Respondents jointly and severally as follows:

i. A DECLARATION that the purported margin facility

agreement was entered in breach of the CBN/SBC

Rules & Regulation and is therefore null and void ab

initio.

ii. A DECLARATION that the N30,000,000.00 removed

from the Applicant's bank account with Oceanic Bank

International Plc for the purchase of shares is null

and void and the debiting should be reversed and the

Applicant's account credited.

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iii. AN ORDER directing the Respondents, especially

the 2nd Respondent to desist from demanding and or

harassing and or attempting to compel the Applicant

to pay any monies to them whatsoever as a result of

the transaction/subject matter of this proceedings.

iv. AN ORDER directing the Respondents to pay to the

Applicant the sum N450,000,000.00 (Four Hundred

and Fifty Million Naira) for illegal misappropriation

and conversion.

V. AN ORDER directing the Respondents to pay the

Applicant the sum of N250,000,000.00 (Two Hundred

and Fifty Million Naira) being exemplary and

aggravated damages.

vi. 21% interest on Judgment sum from the date of

Judgment until date when the sun shall be liquidated.

FHC/L/CS/228/12

ENDORSEMENT TO BE MADE ON THE WRIT

BEFORE ISSUE THEREOF. Pg.130.

i. The sum of N100,000,000.00 (One Hundred Million

Naira) for breach of contract of the banker and

customer relationship existing between the Plaintiff

and 1st Defendant for willful misrepresentation,

deceit, breach of trust and other forms of unfair

commercial practices.

ii. The sum of N100,000,000.00 (One Hundred

Million

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CA)

Naira) for putting the Plaintiff under intense pressure

to repay moneys resulting from alleged contract

entered in breach of duty and banker and customer

relationship, harassing, distressing and annoying the

Plaintiff and thereby caused and/or aggravated health

issues in addition to pecuniary loss.

iii. The sum of N200,000,000.00 (Two Hundred

Million Naira) from the 3rd and 4th Defendants for

failure to monitor and enforce regulatory regime

designed and put in place to protect financial market

users such as the Plaintiff.

iv. The sum of N50,000,000.00 (Fifty Million Naira)

being exemplary and aggravated damages.

v. 21% interest of Judgment sum from the date of

judgment until date when the sum shall be liquidated.

There is a consensus that the parties, subject matter and

facts in the two cases are the same. It is the reliefs claimed

that is in contention. A glossary look at these reliefs shows

that the reliefs claimed in the Federal High Court case is

largely for damages against same defendants for breach of

contract , fa i lure to moni tor the fac i l i ty , for

misappropriation, conversion and exemplary and

aggravated damages. While

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the reliefs claimed before the tribunal is for: declarations

for the margin facility to be declared void, a reversal

repayment, and payment for illegal misappropriation and

exemplary and aggravated damages and interest of 21%.

The reliefs claimed are very similar except for the figures

claimed and semantics.

These reliefs are predicated on the management of the

margin facility and the resulting effect. They run the risk of

having contrary decisions on the same issues. See UMEH

V IWU (supra). All the conditions for abuse of Court

process are present. There is multiplicity of actions in

different venues; same opponents on same subject matter,

on same issues. See ALLANAH & ORS V KPOLOKWU &

ORS (2016) LPELR-40724 (SC).

The point was made clearer in the case of OGOEJEOFO V.

OGOEJEOFO (2006) 3 NWLR (PT. 996) 206 where

SANUSI, JSC held that:

“...these features are: (i) filing of multiplicity of

actions on the same subject matter against the same

opponents on the same issues or numerous actions on

the same matter between the same parties even there

is in existence, a right to commence the action (ii)

Instituting different Courts even though on different

on

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different grounds (iii) Where two or more similar,

processes are used in respect of the exercise of the

same right for instance, a cross appeal and a

Respondent's notice (vi) Where two actions are

instituted in Court the second action is prima facie

vexatious and an abuse of Courts process..."

In the light of the analysis, I am inclined to agree with the

submissions of the Respondents and therefore this issue is

resolved in favour of the Respondents.

ISSUE 3

Appellant's counsel on this issue contended that the 2nd

and 3rd Respondents preliminary objection on non-service

of the pre action notice at page 151 & 177 of the record

were made from their pleadings and the written address

was filed before he had the opportunity to respond, that he

had complained on the conduct of the public bodies

dereliction of duties and that neither party denied service

of pre-action notice but the tribunal thought otherwise at

page 300-301 of the records. Counsel referred Section 43

AMCON Act, 2010; Section 289(1) ISA, 2007; MUSA

ABUBAKAR V CHUKS (2007) 18 NWLR (PT.1066)

386. He submitted that the provision makes the position of

the tribunal untenable. That neither the AMCON Act

nor ISA provided for specific form

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which the pre-action notice must take and that the tribunal

was merely relying on technicalities. Appellant's counsel

contended that the same letter of 26th August, 2013 was

what the 4th Respondent replied to at page 52 of the

records. He relied onA.G BENDEL & ORS v AIDEYAN

(PT 118) 4 NWLR 646; FAGUNWA v. ADIBI (2004) 17

N W L R ( P T . 9 0 3 ) 5 5 4 a t 5 6 3 ; E M E S I M v .

NWACHUKWU (1999) 6 NWLR (PT.605) 168 - 167 to

submit that this Court does not lean towards technicalities

over the need for substantial justice. Appellant counsel

urged the Court to reverse the Ruling and hold that the

letter is a pre-action notice effective and valid.

The 1st Respondent counsel relying on the case of PORT

HARCOURT REFINING COMPANY LTD (PHRC) V

IMOUH OKORO (2010) LPELR - 4861 (CA) submitted

that a pre-action notice is a statutory condition which

prescribes for service of a written notice prior to

commencement of an action against a statutory

corporation. He referred to Section 43(2) AMCON Act and

Section 289 of the ISA and submitted that the 2nd & 3rd

Respondents are entitled to pre-action notices prior to the

commencement of the instant suit.

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In answer to whether the Appellant complied with the

requirement of the law, 1st Respondent's counsel

submitted that the said letter does not qualify as a statutory

letter envisaged by AMCON Act/ISA. That the letter was for

information purposes and that the submissions in

preliminary objection at the Lower Court was based on the

fact that there was no pre-action notice prior to

commencement and that the Appellant cannot say that it

had no opportunity to address the Court on the issue.

Counsel submitted that the pre-action notice is a

mandatory statutory requirement. He cited the cases of

DOMINIC E. NTIERO v NIGERIAN PORT AUTHORITY

(2008) 10 NWLR (PT.1094) 129SC; EBONYI STATE

UNIVERSITY & 3 ORS V. DR (MRS) MARY J ETENG;

ODOEMELAM V. AMADIUME (2008) 2 NWLR

(PT.1070) 179 at 180, paras A – B.

1st Respondent counsel contended that the said letter was

not a preaction notice and that it was written to the 1st

Respondent to remedy grievances and copied the 2nd and

3rd Respondent in the said letter. He submitted that the

case of A.G. BENDEL & ORS v AIDEYAN (supra) relied

on does not support the Appellant's contention that the

letter is

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a pre-action notice. Relying on the case of N.D.C.L v

A.S.W.B (2008) VOL 5 MJSC 118 at 147, paras B – E,

counsel urged this Court to uphold the Ruling of the

tribunal.

The 2nd Respondent in submitting along the lines of the 1st

Respondent relied on the case of N.D.C.L. V. A.S.W.B;

PETER V. NNPC (2010) NWLR (PT.1195), paras G – H;

MOBIL PRODUCING (NIG) LTD V. LASEPA (2002) 18

NWLR (PT.798) 1. He submitted that the letter does not

comply with Section 43(2) of AMCON Act.

The 3rd Respondent counsel on its part submitted that the

Appellant failed to comply with Section 289 of the ISA and

that the action is incompetent. He relied on the cases of

UGWUANYI V. NICON INSURANCE PLC [2004] 15

NWLR (PT.897) 612; MOBIL OIL PROD CO UNLTD V

LASEPA (supra); GBADAMOSI V. NIGERIAN RAILWAY

CORPORATION (2006) LPELR - 11668 (CA); EDEM v

CANON BALL LTD (1998) 6 NWLR (PT 553) 298 at

311.

The 4th Respondent counsel briefly dismissed this issue

and urged the Court to uphold the findings of the tribunal.

RESOLUTION

The contention herein is whether the letter of 26th August,

2013 qualifies as a pre-action notice. A pre-action notice in

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a statute is mandatory and must be complied with. It is

tantamount to a condition precedent to the filing of an

action; it also must be definitive and contain relevant facts

to the intending action. See ZAMFARA STATE

GOVERNMENT & ANOR V UNITY BANK PLC & ANOR;

AMADI v NNPC (2000) 10 NWLR (PT.674) 76. PETER

V. NNPC (supra).

Section 289 (1) of the ISA is reproduced below:

"A person aggrieved by any action or decision of the

commission under this Act, may institute an action in

the tribunal or appeal against such decision within

the period stipulated under this act: Provided that the

aggrieved person shall give to the commission 14

days notice in writing of his intention to institute an

action or appeal against its decision.”

This is in respect of the 3rd Respondent and is a condition

precedent. The 2nd Respondent AMCON also in Section

43(2) of the AMCON Act, 2010 stipulates that:

"An action shall not be brought or commenced

against the Corporation until after the expiration of

30 days notice in writing to the corporation giving

details of the alleged wrong date and remedy sought."

Below is a copy of the letter from pages 37 - 45 of the

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record and extracts of the letter shows that it was

addressed to "the Managing Director, Ecobank” and from

the contents i t i s a compla int against acts o f

mismanagement of margin facility and a history from start

to that date. It is in form of a legal opinion the Appellant's

counsel even though at the end it demands a reversal of the

transaction and principal for non-compounded interest in

the sum of N67,800,00. It even suggests an independent

legal advice on the matter and copies were sent to all the

Respondents to be as at then albeit for their information

purpose. The letter is reproduced below:

"MUSTARD & MUSTARD COURTVIEW CHAMBERS

BARRISTERS & AIKUXURIE ADOMINION HOUSE

(2ND FLOOR)

207 IGBOSERE ROAD,

LAGOS ISLAND,

LAGOS, NIGERIA

26th August, 2013

TELEPHONE: + 234(0)7030082386

E-MAIL: mail@mustardsolicitors.com

www.mustardsolicitors.com

The Managing Director

EcoBank Plc

Ahmadu Bello Way,

Victoria Island

Lagos.

Dear Sir,

MRS. MINNIE AJUWEDE IGBRUDE: OCEANIC BANK

INTERNATIONAL PLC

ACCOUNT No: 201098809

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We are solicitors to Mrs. Minnie Ajuwede Igbrude

("our

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Client") and write in respect of the above account

maintained with Oceanic Bank International Plc

("OBIP"), Asaba 1 office, 264, Nnebisi Road, West

End, Asaba Detta State. Being the successor in title of

OBIP, we write to bring to your attention the margin

facility purportedly granted to our client.

It would appear that the margin facility agreement

has been assigned to the Asset Management

Corporation of Nigeria, ("AMCON"). As a result, a

solicitor acting on the instructions of AMCON sent a

pre-action protocol to our client demanding the sum

of N117,371,827.91 (One Thousand, Eight Hundred

and Twenty-Seven Naira, Ninety-One Kobo) as the

outstanding indebtedness' on the account.

However, a review of the documents forward to our

offices in respect of the transactions shows that the

said margin facility agreement constitutes a serious

breach of the banker/customer relationship existing

between our client ad OBIP which has resulted in

serious pecuniary loss, hardship and psychological

trauma to our client.

………

……..

Could it be that the report to the CBN on the margin

facility granted to our client was

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dressed up as to escape scrutiny? Or could it be that

CBN, as a regulator that is expected to patrol the

financial perimeter in their supervisory capacity,

failed to notice the aberration and therefore failed in

their duty to protect vulnerable consumer of financial

products such as our client? A host of other

interesting questions agitating the mind are deferred

and would be raised at the appropriate forum where it

becomes necessary.

In the circumstances, Eco Bank Plc, as the acquirers

of OBIP, is again urged to reverse the purported

margin facility transaction and pay our client the

N30,000,000.00 (Thirty Million Naira) credit balance

standing in her account prior to the purported margin

facility agreement with 21% interest per annum. In

view of the foregoing, kindly make your cheque

available to our client through this law firm for the

sum of N67,800,000.00 (Sixty-Seven Million, Eight

Hundred Thousand Naira) being the principal and

non-compounded interest. The expeditious resolution

of our client's complaint is strongly advised in view of

the utter breach of the judiciary duty by her bankers.

Your are at liberty to seek independent legal

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advice on the issue.

We look forward to receiving from you within 21 days

of receipt of this communication failing which our

client shall review the option at her disposal without

further course.

Yours faithfully,

MUSTARD & MUSTARD

Abraham Nnadi

Managing Partner

CC:

1. Central Bank of Nigeria

Consumer Protection Department

Central Business District

Garki, Abuja.

2. Securities & Exchange Commission

3 Idejo Street, Off Adeola Odeku Street

Lagos.

3. Asset Management Corporation of Nigeria

8th Floor, Mulliner Towers

39 Alfred Rewane Road

Ikoyi, Lagos."

The above letter in my view is neither a call to AMCON nor

SEC; it is mainly to the bank. I have read the case of

AMADI v. N.N.P.C. (supra) and I am still of the view that

it is distinguishable. The letter must be written

intentionally to the corporation i.e. regulatory bodies. The

demand therein is to the 1st Respondent while the demands

ought to be different since each of these statutory bodies

have their different functions and roles. What exactly is

demanded of them is not stated but what the Appellant

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wants from the 1st Respondent.

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I am afraid I find this letter defective and in this regard, I

tow the line of the tribunal.

The document does not give an intention to file proceedings

and I also agree with the 3rd Respondent counsel that the

last paragraph states what the demands are and from

whom the result is expected. Where a statute states out

requirements to be met, a failure or incomplete obedience

will render such an act incompetent. See UDOEKA & ORS

V ISIKOBOO & ORS (2012) LPLER – 9690 (CA).

In the case of OKEREKE v YAR'ADUA & ORS [2008] 12

NWLR (PT.1100) 95 it was stated per ONNOGHEN, JSC

that:

'...where legislation lays down a procedure for doing a

thing there should be no other method of doing it...”

I am fortified in my thoughts through the dictum of EKPE,

JCA in the case of IKEDURU LOCAL GOVERNMENT

AREA V BARR. KENNETH C. UZOECHI (2013) LPELR

- 22511 (CA) where he held that:

"Regulations of the right of access to Court abound in

the rules of procedure and are legitimate...In a

situation where a pre-action notice is prescribed by

an enactment, where the requirement of the notice is

that it should be served on a particular

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person, service on any person other than the person

stipulated is a non-compliance with the provision."

I therefore resolve this issue against the Appellant.

On the whole having resolved the three issues against the

Appellant, the appeal lacks merit and it is hereby

d i smissed . The judgment o f the Tr ibuna l i n

IST/LA/OA/03/2014 delivered on the 8th of December, 2014

is hereby affirmed. Costs of N100,000 is awarded against

the Appellant.

TIJJANI ABUBAKAR, J.C.A.: My learned brother,

Obaseki-Adejumo JCA, granted me the privilege of reading

before now the comprehensive lead Judgment just

delivered.

I entirely agree with the reasoning and conclusion and

adopt the judgment as mine. I have nothing extra to add.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the

privilege of reading in draft the lead judgment of my lord

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A., just

delivered with which I agree and adopt as mine. I have

nothing more to add.

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Appearances:

Charles Edeki For Appellant(s)

A. N. Okoye With T . T . Ogunba for 1stRespondent.A. O. Ajinoluwa for 2nd Respondent.Oki Achika for 3rd Respondent.Paul Obisahi for 4th Respondent . ForRespondent(s)

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