A.G. Olisaemeka V. Securities And Exchange Commission (2005)

LAWGLOBAL HUB Lead Judgment Report

(MRS.) NNENNAA. ORJI, Honourable Chairman,

The Appellant was a staff of Apex Securities Limited where he worked as a stockbroker for 11 years. Sometime in November 2002, the firm was invited for questioning at the Lion Building of Nigerian Police Force, Lagos in respect of the investigation of large scale fraud involving U.A.C. Plc shares. On July 13 2004, the Managing Director of Apex Securities Limited, informed the Appellant that there was letter from SEC suspending him from the trading floor of the NSE, of which the Appellant claimed he has not been officially communicated. The Appellant promptly protested the suspension through a letter dated July 21, 2004 addressed to the Director .General of Securities and Exchange Commission (SEC). The aforestated letter was not replied.

On 26th July 2004, his attention was drawn to another letter from SEC to the firm inviting the firm to the Administrative Proceedings Committee (APC) of SEC on August 4th ,2004. The Appellant was informed by the Managing Director of Apex Securities Limited that he was invited to represent the interest of the company. The Appellant was not invited as a party to the proceedings and was not informed of the subject matter of the proceedings. At the APC the Appellant alleged that he was queried about both personal matters and his involvement in the U.A.C. share scam, as well as the alleged falsification of the signature of

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the Managing Director of his firm. The Appellant was found guilty of complicity to perpetrate fraud in the capital market. He was banned from the capital market by Securities and Exchange Commission. The Appellant was handed over to EFCC for investigation and prosecution on the said share seam.

The Appellant claimed as follows:

1 An order setting aside the decision of the APC in case No. APC/5/2003 as same was reached in contravention of the rights of the Appellant as guaranteed in the 1999 Constitution of the Federal Republic of Nigeria.

2 An order of the Tribunal restoring all the lights and privileges of the Appellant in the capital market.

3 General damages of N95, 000.00 against the Respondent for unduly subjecting the Appellant to emotional, psychological and mental trauma, loss of goodwill and business reputation.

The Appellant formulated five issues for determination by the Tribunal. These are;

1) Whether the Appellant not being a party to the proceedings in case No APC/5/2003 could have been indicted and punished in the same proceedings.

2) Whether taking cognizance of the entire circumstances surrounding the proceedings leading to the indictment of the Appellant, it can be said that the Appellant was given a fair hearing. If the above is answered in the negative whether APC proceeding is not liable to be set aside.

3) Whether Appellant is personally liable for the Acts of his employer. .

4) Whether the onus of proof in a civi1 case where clime is imputed was discharged by the Respondent in Case No. APC/5/ 2003 considering the evidence adduced at the APC. Further, whether the Respondent has the competence to adjudicate and punish for a crime.