Christopher Okeke V. Securities And Exchange Commmission & Ors. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of the Federal High Court of Lagos State, Judicial Division, which was delivered on September 26, 2008 in Suit No. FHC/L/CS/483/2008 by Abdullahi Mustapha, CJ. By the judgment in-question, the lower court came to the conclusion that the Appellant’s right to fair hearing had not been breached. Consequent whereupon, the lower court dismissed the said suit.

BACKGROUND FACTS:

The facts and circumstances surrounding the appeal are gleanable from the records of appeal. In June, 2003, the Appellant was appointed a non-executive director of CADBURY NIGERIA PLC. In June 2006, the Annual Report Accounts of Cadbury Nig. Plc. was sent to the 1st Respondent. Upon reviewing the said report, the 1st Respondent expressed some concerns regarding declining profitability, worsening leverage ratio mis-statements in the company’s accounts, et al.

Consequent thereupon, the chairman of Cadbury Nig Plc. appointed an independent firm, Pricewaterhousecoopers Ltd, to investigate the said allegations.

The report of Pricewaterhousecoopers was later sent to the 1st Respondent. Upon the receipt of the report, the 1st Respondent constituted an in-house committee and Administrative Proceedings Committee (2nd Respondent) to investigate the alleged mis-statements in Cadbury’s accounts. However, Cadbury, the auditors and Directors thereof challenged the competence of the 2nd Respondent to conduct the said investigation. Thus, an action was instituted at the Federal High Court, Abuja. The 2nd Respondent proceeded with the investigation and delivered the decision thereof to the 1st Respondent on April 8, 2008.

Consequent upon which, the Appellant applied to the lower court for a judicial review of the decision of the APC, thereby seeking the following reliefs:-

(a) A DECLARATION that the Respondents lacked the competence or jurisdiction to entertain or adjudicate over the allegations concerning the misstatement in the published accounts of Cadbury Nigeria Plc (2002 – 2005), as detailed in a Hearing Notice dated May 7, 2007 reference no SEC/1&E/APC/51/Vol. 1/002A, and the Memorandum of facts attached thereto, as the allegations touched and concerned matters arising from the operations of Companies and Allied Matters Act Cap C20 Laws of the Federal Republic of Nigeria 2004, a matter reserved exclusively to the Federal High Court by virtue of section 251 (i) (e) of the Constitution of the Federal Republic of Nigeria 1999.

(b) A DECLARATION that the indictment and trial of the Applicant by the Respondents based on the allegations leveled against him have been undertaken in breach of the Applicants constitutional right to fair hearing and is unconstitutional null and void.

(c) A DECLARATION that the Respondents acted ultra vires their powers in making their decision in respect of the alleged misstatement in the accounts of the Cadbury Nigeria Plc as contained in the Respondent’s letter to the Applicant dated April 8, 2008 ref. no. SEC/1&E/APC/51/08/46 as the decision touched and concerned matters arising from the operations of Companies and Allied Matters Act Cap C20 Laws of the Federal Republic of Nigeria 2004, a matter reserved exclusively to the Federal High Court by virtue of Section 251 (i) (e) of the Constitution of the Federal Republic of Nigeria 1999 and the 2nd Respondent is not constitutionally empowered to exercise judicial powers.

(d) A DECLARATION that the Respondents’ aforesaid decision is null and void as it is unreasonable and excessive and founded on a wrong premise that the applicant was an Executive Director.

(e) AN ORDER OF CERTIORARI bringing up before this honourable court for purposes of being quashed, the decision of the Respondents in respect of the alleged misstatement in the accounts of the Cadbury Nigeria Plc as contained in the Respondent’s letter to the Applicant dated April 8, 2008 ref no. SEC/1&E/APC/51/08/46 especially as the decision was based on the false premise that the Applicant was an Executive Director of Cadbury Nigeria Plc.

(f) AN ORDER OF INJUNCTION restraining the Respondents, their servants, agents, privies or otherwise howsoever from implementing in any manner howsoever the decision of the said second Respondent contained in its letter of April 8, 2008 ref no. SEC/1&E/APC/51/08/46.

The Respondents’ counsel filed a notice of preliminary objection challenging the jurisdiction of the lower court to entertain the Suit in question.