Nospetco Oil & Gas Limited V. Prince Matiluko Emmanuet Olorunnimbe & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the interlocutory ruling of the Investment and Securities Tribunal delivered on 13th April, 2011 dismissing the Appellant’s Notice of preliminary objection dated 25th November, 2010. The facts which led to this appeal are as follows:

The Applicants now 1st-14th Respondents had filed their originating application on 7th September, 2010 seeking the following reliefs against the Appellant and the 15th and 16th Respondents:

“1. Declaration that the Applicants are entitled to know the total amount frozen from the 3rd Respondent’s accounts in various Commercial Banks in Nigeria including but not limited to Zenith Bank Plc, First Bank Plc, Union Bank Plc, UBA Plc, Skye Bank Plc, Intercontinental Bank Plc, and Oceanic Bank Plc by the 1st Respondent since May, 2007.

2. A declaration that Applicants are entitled to know the total amount of money frozen from the 3rd Respondents account in various commercial Banks in Nigeria by 1st Respondent and kept with 2nd Respondent.
3. A declaration that continued withholding of the amount so frozen from the accounts of the 3rd Respondents by the 2nd Respondent without releasing some to the Applicants on demand is unlawful and inimical to the overriding interest of the Applicants.
4. A declaration that the refusal omission and/or failure of the 1st Respondent to release the salvaged fund to the Applicants on demand is contrary to its statutory duty to protect the interest of the Applicants as spelt out in section 13 (i) and (k) of ISA 2007 and the judgment of the Investments and Securities Tribunal Holden in Abuja in case No. IST/OA/19/07 between the 3rd Respondent as also a Respondent whereby it is stated inter alia that: “The Respondent has the statutory duty to protect investors including those that invested through the Applicant”.
5. A declaration that the continued refusal, omission and/or failure of the 2nd Respondent to release the money in its custody to the Applicants despite the repeated demand and numerous representation amount to insensitivity to the plight of the Applicants, legally indefensible and morally wrong.
6. An order of this Honourable Tribunal compelling the 1st and 2nd Respondents to release without further delay all the amount so frozen from the 3rd Respondent’s account in their custody to the Applicants for immediate disbursements forthwith.
7. An order mandating the 2nd Respondent to disclose the total amount in its custody based on the directive of the 1st Respondent with accrued interest since 2007 up to date and release same to the Applicants immediately.
8. An order compelling both the 1st and 2nd Respondents to set up without further delay on ad-hoc committee comprising the 1st and 2nd Respondents, the Applicants, the Legal Representative to the Applicants, the office of the Auditor-General of the Federation and Nigerian Police from special fraud units, Milverton, Ikoyi, Lagos to disburse the amount so recovered to the Applicants prorate.
9. An order compelling the 3rd Respondent to stop forthwith its illegal, unlawful and fraudulent business and banking activities which it has been relentlessly carrying on under cover and clandestinely since May, 2007 after its operation were haulted (sic) by the 1st Respondent and refund the money invested by the Applicants accordingly.
10. An order of this Honourable Tribunal awarding the sum of N=2million as cost of instituting and prosecuting the application, travelling expenses to Abuja by the Applicants and their Legal Representatives to plead, ask, request and demand for the release of their money in the custody of the 1st and 2nd Respondents. And any other reliefs as the Honourable Tribunal deems fit.”

On the 25th November 2010, the Appellant, as the 3rd Respondent at the Tribunal, filed its responses together with a notice of preliminary objection to the 1st – 14th Respondents’ originating processes.

On 13th December 2010, the 1st – 14th Respondents filed their reply to the Appellant’s notice of preliminary objection.

On the 25th January 2011, the Appellant filed its reply on points of law to the 1st- 14th Respondents’ reply to its notice of preliminary objection.

Arguments were taken on the objection and a considered ruling was given thereon on 13th April, 2011.

Being dissatisfied with the said ruling, the Appellant appealed to this Honourable court by filing a notice of appeal dated 21st April, 2011.

On or about 26th May, 2011, the Registrar of the Tribunal compiled and transmitted the record of appeal to the Registry of this Honourable court.

The Appellant’s brief was filed on 6th July, 2011. The Appellant’s Reply Brief was also filed on 12th August, 2011. The 1st – 14th Respondents filed a joint Respondent’s brief on 2nd August, 2011. The 15th Respondent’s brief was filed on 2nd August, 2011 while counsel to the 15th Respondent did not file any brief but aligned herself with the opinion of the 16th Respondent with whom she shares interest.

In the Appellant’s brief settled by Mr. Shamsudeen Abubakar Esq, Mumini Bamidele Esq and Miss E. D. Andah, five issues were distilled for determination and are set out below:

“i. Whether Exhibit “A” attached to the originating application dated 7th September, 2010 established a Collective Investment

Scheme/Agreement as contemplated by sections 153 (1), 284 (1) (f) and 315 of the Investment and Securities Act, 2007 as to confer jurisdiction on the Tribunal, (Grounds 1, 2, 3 and the second ground ‘8’(i);