CORAM

---

---

PARTIES

---

MR. UZODINMA CHUKWUMA KUZI-ORIZU APPELLANTS

---

FIDELITY UNION SECURITIES LTD RESPONDENTS

---

AREA(S) OF LAW

---

---

SUMMARY OF FACTS

SUMMARY OF FACTS:
The Claimant/Respondent before the Lagos State High Court claimed a declaration that the Claimant is empowered under the loan agreement to sell shares bought with the proceeds of the facilities, that the Claimant is empowered under the loan agreements to sell shares bought with the Defendant’s counterpart contribution and that the Claimant is empowered under the loan agreement to use the proceeds from the sale of Defendant’s shares bought with the facility and Defendant’s counterpart contribution to recoup his indebtedness to the Claimant. He sought an order of court granting Claimant leave to sell the shares bought with the proceeds of the facilities, leave to sell the shares bought with the Defendant’s counterpart contribution and leave to use the proceeds from the sale of Defendant’s shares bought with the facility and Defendant’s counterpart contribution to recoup his indebtedness to the Claimant. The Claimant/Respondent is in business as a valid licensed Money Lender while the Defendant/Appellant is the customer. Both parties entered into a loan agreement to buy shares while the Respondent manages same. A second loan agreement for the purchase of new shares of 27 million with a contribution of 30 million was made by the Appellant on the condition of minimum collateral to cover 150% of the loan throughout the lifetime of the loan. The shares bought however depreciated and the Appellant was called to provide extra cash to Shaw up the shares. Upon the failure of the Appellant to accede to the demand by the Respondent to offset the margin facility, the Respondent instituted the action claiming the aforementioned reliefs while the Appellant contended that Respondent failed in the duty of managing the share portfolio professionally. The lower court dismissed the preliminary objection of the Appellant challenging the jurisdiction of the lower court to determine the suit on the grounds that the Investment Securities Tribunal has jurisdiction over the case. The case proceeded on the merit and final judgment was delivered and all the reliefs sought by the Claimant/Respondent were granted while the Appellant’s counter-claim was dismissed. The Appellant been dissatisfied with the decision of the lower court filed this appeal.

---

HELD

---

Appeal Dismissed

---

ISSUES

---

Whether the lower court has jurisdiction to entertain this matter. Whether the trial judge ought not to have found the Respondent negligent and fraudulent as to entitle the Appellant to judgment on his counter claim. Whether the trial judge should not have dismissed the claim of the Respondent for being frivolous, preposterous and an abuse of court process. Whether the judgment was not against the weight of evidence.

---

RATIONES DECIDENDI

---

JURISDICTION OF COURT – DETERMINANTS OF JURISDICTION OF COURT

---

“It is trite that the claims and reliefs of any action determine the jurisdiction of a court. Each court has its area of subject jurisdiction while the Federal courts has both subjects and parties jurisdiction as well. See the case of PDP & Anor V Sylva & Ors (2012) LPELR – 7814 (SC).” –

---

JURISDICTION OF THE INVESTMENT AND SECURITIES TRIBUNAL – EXCLUSIVE JURISDICTION OF THE INVESTMENT AND SECURITIES TRIBUNAL

---

“Section 274 of the ISA establishes the investments and securities tribunal and gives exclusive jurisdiction to hear and determine any question of law or dispute involving matters under the Investment and Securities Act (ISA). See Ajayi v SEC (2007) LPELR – 4553 (CA); SEC v Kasunmu [2009] 19 NWLR (PT 1150) 509.” –

---

JURISDICTION- MEANING OF JURISDICTION:

---

“Jurisdiction is so important and fundamental that it 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 Ndeyo V Ogunnaya (1977) 1 SC 11; Dipaianlong V Daroiye (2007) 4 SC (PT 111) 118; Tetrazinne Foods Ltd V Abbacon Investment Ltd & Ors (2015) LPELR – 25007 (CA).” –

---

INVESTMENT AND SECURITIES TRIBUNAL – JURISDICTION OF THE INVESTMENT AND SECURITIES TRIBUNAL

---

“Section 284(1) (a-f) & (2) of the ISA, 2007 clearly sets out the jurisdiction of the tribunal:
(1) The tribunal shall, to the exclusion of any other court of law or body in Nigeria, exercise jurisdiction to hear and determine any question of law or dispute involving:
a) a decision or determination of the Commission in the operation and application of this Act, and in particular, relating to any dispute: (i) between capital market operators; (ii) between capital market operators and client; (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 Commission sand 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 an 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,
–

---

JURISDICTION OF COURT – DETERMINATION OF JURISDICTION OF COURT

---

“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), pages 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 the proper parties to whom rights 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 extrinsic to adjudication, parties cannot either by connivance, acquiescence or collusion confer same on a court that is not seised of such jurisdiction. The cases of Okolo V Union Bank Of Nig Plc (2004) ALL FWLR (PT 197) 981; FGN v Oshiomhole [2004] 3NWLR (PT86) 305 at 324, para B; Mobil Producing (Nig) Ltd V Monokpo (2004) ALL FWLR (PT 195) 575 at 657; are all on point on the principle of our law that lack of jurisdiction cannot be waived by one or both parties when none exists.”
–

---

ACADEMIC QUESTION-MEANING OF ACADEMIC QUESTION

---

“In Agbakoba v INEC (2008) LPELR – 232 (SC) 6-64 the apex court on the meaning of academic question held that:
“The Blacks law dictionary, 5th edition at page 11 has defined academic question an issue which does not require an answer or adjudication by the court, because it is not necessary to case; hypothetical or moot question. An action becomes hypothetical or raises mere academic point when there is no live matter in it to be adjudicated upon or when its determination holds no practical or tangible value for making a pronouncement upon it; it is otherwise an exercise in futility…”
– PER A.O.OBASEKI-ADEJUMO J.C.A
NEGLIGENCE- DEFINITION OF NEGLIGENCE “Negligence is the omission or failure to do something which a reasonable man under similar circumstances would do or the doing of something which a reasonable man will not do. See Dortmund Company (Nig) Ltd & Anor V Elias (2013) LPELR – 21117 (CA).” –

---

PROOF OF NEGLIGENCE- ON WHO LIES THE BURDEN OF PROVING NEGLIGENCE

---

“The burden of proof lies on the party who alleges negligence. It is the duty of he who asserts that proves and failure to prove the particulars pleaded is fatal to the party’s case. See Seven Up Bottling Co Plc V Emmanuel (2013) LPLER – 21104 (CA); A.G Leventist Nig Plc V Chief Christain Akpu (2007) LPELR – 5 (SC) where OGUAGU, JSC held that:
“…it is firmly established that a party who alleges negligence should not only plead the act or acts of negligence, but should also give specific particulars. See the case of Aku Nimecha Transport Services (Nig) Ltd’’
–

---

SPECULATIONS- ATTITUDE OF COURTS TO SPECULATIONS

---

“The court does not work with speculations but proof with particularity. In Afegbai v A.G Edo State & Anor (2001) LPELR – 193 (SC) the apex court opined that:
“…fraud is proved when it is shown that a false representation has been made by the representor 1) knowing, or 2) without belief in its truth or 3) recklessly, careless whether it be true or false; the third case being but an instance of the second.”
–

---

ALLEGATION OF FRAUD – ON WHO LIES THE BURDEN AND STANDARD OF PROOF IN AN ALLEGATION OF FRAUD

---

“The burden and standard of proof required for the allegation of fraud lies on the Appellant who raised it and it is proof beyond reasonable doubt. See Adigun V Ibadan North L.G (2016) LPELR – 41385 (CA).” –

---

PLEA OF NON EST FACTUM- CONDITION FOR AVAILABILITY OF THE PLEA OF NON EST FACTUM

---

“The apex court in Diab Nasir & Anor V Antoine Rossek (1973) LPELR – 1946 (SC) held that:
“In Saunder’s case reported in (1979) 3 ALL ER 961 (HL) to which the learned trial judge referred, the House of lords held that the plea of non est factum can only rarely be established by a person of full capacity, and that although it is not confined to the blind and the illiterate ,any extension of the scope of the plea should be kept within narrow limits; in particular, it is unlikely that the plea would be available to a person who signed a document without informing himself of its contents and their meaning’’
Also in Ezeugo V Ohanyere (1978) LPELR – 24888 (SC) the held court that the condition for the availability of non est factum is where the party sued or suing can show either that there never has been or that there is not existing at the time of the plea any valid execution of the deed on his part. See Okoya & Ors V Santilli & Ors (1994) LPELR – 24851 (SC); Egbase V Oriaregha [1985] 2 NWLR (PT 10) 884, 899 – 900.”
–

---

TERMS OF A CONTRACT- DUTY OF COURT TO GIVE EFFECT TO THE TERMS OF A CONTRACT WHERE SAME IS UNAMBIGUOUS

---

“It is a contract that the parties and the court must be bound by and only interprets the intentions of the parties. See UBN v Ozigi [1994] 3 NWLR (PT 333) 385; Oyenuga V Provincial Council Of The Universiyty Of Ife (1965) NMLR 9. In Internatinal Starchem Ind Ltd V African Newspaper Of Nig Ltd (2014) LPELR – 23244 (CA) the court held that where the terms of the contract are clear and unambiguous, the duty of the court is to give effect to them and on no account rewrite the contract for the parties. In the absence of fraud, duress, misrepresentation, the parties are bound by the terms of the contract they freely entered into. See JFS INV. LTD v Brawal Line Ltd [2006] 8 NWLR (PT 1090) 623 at 659.” –

---

CONTRACT -WHETHER A PARTY WHO HAS BENEFITTED FROM A CONTRACT CAN TURN AROUND TO QUESTION ITS LEGALITY

---

“The Appellant cannot take the benefit under a facility and turn round to question its legality of the same document. It is against the rule of equity. See A.G. Rivers State v A.G. Akwa Ibom State & Anor [2011] 8 NWLR (PT 1248) 31 at 83”.

---

APPELLATE COURT – AN APPELLATE COURT IS MORE CONCERNED WITH THE CORRECTNESS OF A DECISION

---

“An appellate court is more concerned with the correctness of the decision in question and not otherwise. See Ogundare & Ors V Alao (2013) LPELR – 21845 (CA).

---

JUDGMENT AGAINST THE WEIGHT OF EVIDENCE – WHEN IS JUDGMENT SAID TO BE AGAINST THE WEIGHT OF EVIDENCE?

---

“For any judgment to be said to be against the weight of evidence it must be shown that the evidence adduced by the Appellant is weighed against that adduced by the Respondent. See Lucas Pharmaceuticals Chemist Ltd v Roche (Nig) Ltd [1995] 1 NWLR (Pt 3690) 28”.

---

CASES CITED

---

---

STATUTES REFERRED TO

---

Investment and Securities Act, 2011|

---

CLICK HERE TO READ FULL JUDGMENT