International Standard Securities Ltd V. Unilever Nigeria Plc (Formerly Lever Brothers Nigeria Plc) (2009)

LawGlobal-Hub Lead Judgment Report

AYOBODE O. LOKULO-SODIPE, J.C.A.

This appeal is against an interlocutory decision of the Investments and Securities Tribunal (hereinafter simply called “the lower Tribunal”), The Respondent as Applicant before the lower Tribunal commenced this matter by Originating Application dated and filed on 17/11/2004. The Appellant being the Respondent before the lower Tribunal filed a Statement of Defence in the matter on 10/12/2004. On or about 23/2/2005 the Appellant’s present counsel notified the Respondent’s solicitor and the lower Tribunal of the change of counsel vide a letter dated 22/2/2005. Although hearing commenced on 27th day of January, 2005 it did not end three month from 17/11/2004 and was indeed adjourned beyond the period. Given the facts catalogued above, Appellant’s solicitor filed an application praying the lower Tribunal to terminate the proceedings before it. The lower Tribunal in its Ruling delivered on 19th May, 2005 held “that the Respondent’s (now Appellant) application dated 22nd February, 2005 filed on 23rd February, 2005 lacks merit and is hereby struck out. There shall be costs of N20,000.00 in favour of the Respondent/Applicant. This case is adjourned to 22nd June 2005 for further and accelerated hearing.”

Dissatisfied with the Ruling of the lower Tribunal, the Appellant on 26/5/2005 lodged a Notice of Appeal against the same. The Notice of Appeal contains two grounds of appeal. Pursuant to the leave of this Court granted on 13/10/2005 the Appellant amended its Notice of Appeal 10 contain four grounds. The grounds of appeal in the amended Notice of Appeal sham of their particulars read: –

“GROUND NO.1

The Tribunal erred in law when in construing Section 236(5) of the Investments and Securities Act 1999 (ISA), it failed to accord the provision of the Statute with its natural and ordinary meaning.

GROUND NO. 2

The Tribunal erred in law when in interpreting Section 236(5) of the Investments and Securities Act 1999 it held that Efezue v.` Mabadugha (1984) Vol.11 SCNLR 427 which was cited before the Honourable Tribunal “cannot be of much assistance” because Ifezue’s case only dealt with when judgment should be delivered and did not include matters arising in a case from commencement to final address of Counsel. Rather than relying on Ifezue’s case the Tribunal relied on its Rules of Procedure.

GROUND NO.3

The Honourable Tribunal misdirected itself in law when in interpreting Section 236(5) of the Investments and Securities Act, the Tribunal relied on the decision in Ogundele v. Fasu (1999) 12 NWLR (Pt. 632) 662 at 673 and 676.

GROUND NO.4

The Honourable Tribunal erred in law when in interpreting Section 236(5) of the ISA it referred to and relied on the decision in Unongo v. Aku and Emesim v. Nwachukwu (1999) 6 NWLR (Pt. 596) 590 in deciding the Appellant’s application dated 22nd February, 2005 and this without inviting addresses of Counsel thereon.”

The appeal was heard on 23/3/2009. Learned senior counsel for the Appellant C.O.I. Joseph SAN, in urging the Court to allow the appeal relied on and adopted the Appellant’s brief of argument dated 7/11/2005 and filed on 15/11/2005 as well as Appellant’s Reply brief dated 24/5/2006 and filed on the same date. In his oral adumbration learned SAN cited the case of Carrena v. Arowolo (2008) 6-7 SC (Pt. 1) 99; as deciding that the Court of Appeal is bound by its previous decisions.

Learned lead counsel for the Respondent Mrs. J.O. Adesina in urging that the appeal be dismissed relied on and adopted the Respondent’s brief of argument dated 10/5/2006 filed on the same day but deemed to have been properly filed and served on 18/5/2006. In her oral adumbration, learned lead counsel cited the cases of WCC Ltd v. Batalha (2006) 9 NWLR (Pt. 986) 595 at 611-621; Fasel Services Ltd v. NPA (2003) 8 NWLR (Pt. 821) 73 as relevant. The cases decide that a party cannot complain in respect of a wrong from which he has benefited.

Learned SAN in replying on points of law said that the sole issue in this appeal is that of interpretation of the provision of ISA. This is what the lower court decided. The issue of adjournment he further said is an exercise of discretion and there is no appeal against the same.