The Constitutionality Of The Jurisdiction Of The Investments And Securities Tribunal Vis-À-Vis The Jurisdiction Of The Federal High Court
Abia Friday, Lagos, Nigeria.
It is a well established principle of our law and that of the courts that a court or tribunal in Nigeria must at all times limit itself to the powers granted it by the law establishing it so as not to render its decisions, no matter the grammatical beauty and proceedings, no matter how well conducted, a nullity.
The Black’s Law Dictionary defines jurisdiction as:
“The power of the court to decide a matter in controversy and presupposes the existence of a duly constituted court with control over the subject matter and the parties”.
The Supreme Court in Attorney General of Anambra State v Attorney General of the Federation (1993) 7 SCNJ at 249 per Ogundare (JSC) also defined the term as:
“The authority a court has to decide matters before it or take cognizance of matters presented in a formal way for its decision”.
The import of the above provisions is that where the court lacks jurisdiction, it would not be able to exercise any judicial powers in respect of any such matter brought before it.
The question of the true jurisdiction of the Federal High Court in corporate matters did not begin with the establishment of the Investment and Securities Tribunal –it has been an age-long tussle. It will be remembered that since the enactment of the Federal High Court Act in 1973, there have been heated arguments as to which court has jurisdiction in corporate matters between the Federal High Court and the State High Court. However, the controversy was laid to rest by the Constitution of the Federal Republic of Nigeria 1999 (As Amended) when it provided in section 251(1)(e) that the Federal High Court has the exclusive jurisdiction to entertain matters arising from the operation of the Companies and Allied Matters Act or any other enactment regulating the operation of companies incorporated under the Companies and Allied Matters Act (CAMA). This was in tandem with section 7(1)(c)(i) of the Federal High Court Act, 1973 and this position is further judicially supported by the case of Standard Trust Bank Plc v Chief Emmanuel Olusola (2008) 1 NWLR (pt 1069)561 where the court held that the Federal High Court has jurisdiction in matters relating to the administration of the CAMA and companies in Nigeria.
The enactment of the Investment and Securities Act brought into existence the Investment and Securities Tribunal. It was established under section 224 of the Investment and Securities Act, 1999 (now under section 274 of the Investments and Securities Act, 2007). The tribunal is deemed to be a civil court and has both Original and Appellate jurisdiction. This can be clearly seen under section 284 of Act which provides as follows:
“284 (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 their clients;
(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 and 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; and
Jurisdiction of the Tribunal, etc.
(f) disputes arising from the administration, management and operation of collective investment schemes.”
Again, section 284(3) of the Investments and Securities Act went further to state that the Tribunal shall have power to interpret any law, rule or regulation as may be applicable. As though this was not enough, section 294 of the said Act went further to state that, the Tribunal shall have exclusive jurisdiction on matters specified in the Act without considering the fact that this is directly in conflict with section 251(1)(e) and (r) of the Constitution.
Further, in disregard of the provisions of section 7(1)(c)(i) of the Federal High Court Act and section 251(1)(e) of the Constitution of the Federal Republic Of Nigeria 1999 (As Amended) on matters relating to the operation of the Companies and Allied Matters Act or any other enactment regulating the operation of companies incorporated under the Companies and Allied Matters Act, section 284(1)(b) of the Investments and Securities Act went on to confer similar jurisdiction to the Investment and Securities Tribunal.
I am however of the firm view that the provisions of the Investments and Securities Act cannot stand the hallowed provisions of the constitution of the Federal Republic of Nigeria being the grund norm. In fact, Section 1(3) of the Constitution states very clearly and unequivocally that if any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail and that other law shall to the extent of the inconsistency be void. It goes therefore to say that the Federal High Court and not the Investments and Securities Tribunal has exclusive jurisdiction in matters relating to companies (whether capital market operators or not) incorporated under the Companies and Allied Matters Act. Thus to the extent of its inconsistency with the provisions of the Constitution, the provisions of the Investments and Securities Tribunal is void.
Leaving this Act (Investment and Securities Act) as it now is only making a mockery of our revered Constitution. As such the Act should be amended to uphold the superiority of the Constitution.
It is a well established principle of our law and that of the courts that a court or tribunal in Nigeria must at all times limit itself to the powers granted it by the law establishing it so as not to render its decisions, no matter the grammatical beauty and proceedings, no matter how well conducted, a nullity.
The Black’s Law Dictionary defines jurisdiction as:
“The power of the court to decide a matter in controversy and presupposes the existence of a duly constituted court with control over the subject matter and the parties”.
The Supreme Court in Attorney General of Anambra State v Attorney General of the Federation (1993) 7 SCNJ at 249 per Ogundare (JSC) also defined the term as:
“The authority a court has to decide matters before it or take cognizance of matters presented in a formal way for its decision”.
The import of the above provisions is that where the court lacks jurisdiction, it would not be able to exercise any judicial powers in respect of any such matter brought before it.
The question of the true jurisdiction of the Federal High Court in corporate matters did not begin with the establishment of the Investment and Securities Tribunal –it has been an age-long tussle. It will be remembered that since the enactment of the Federal High Court Act in 1973, there have been heated arguments as to which court has jurisdiction in corporate matters between the Federal High Court and the State High Court. However, the controversy was laid to rest by the Constitution of the Federal Republic of Nigeria 1999 (As Amended) when it provided in section 251(1)(e) that the Federal High Court has the exclusive jurisdiction to entertain matters arising from the operation of the Companies and Allied Matters Act or any other enactment regulating the operation of companies incorporated under the Companies and Allied Matters Act (CAMA). This was in tandem with section 7(1)(c)(i) of the Federal High Court Act, 1973 and this position is further judicially supported by the case of Standard Trust Bank Plc v Chief Emmanuel Olusola (2008) 1 NWLR (pt 1069)561 where the court held that the Federal High Court has jurisdiction in matters relating to the administration of the CAMA and companies in Nigeria.
The enactment of the Investment and Securities Act brought into existence the Investment and Securities Tribunal. It was established under section 224 of the Investment and Securities Act, 1999 (now under section 274 of the Investments and Securities Act, 2007). The tribunal is deemed to be a civil court and has both Original and Appellate jurisdiction. This can be clearly seen under section 284 of Act which provides as follows:
“284 (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 their clients;
(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 and 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; and
Jurisdiction of the Tribunal, etc.
(f) disputes arising from the administration, management and operation of collective investment schemes.”
Again, section 284(3) of the Investments and Securities Act went further to state that the Tribunal shall have power to interpret any law, rule or regulation as may be applicable. As though this was not enough, section 294 of the said Act went further to state that, the Tribunal shall have exclusive jurisdiction on matters specified in the Act without considering the fact that this is directly in conflict with section 251(1)(e) and (r) of the Constitution.
Further, in disregard of the provisions of section 7(1)(c)(i) of the Federal High Court Act and section 251(1)(e) of the Constitution of the Federal Republic Of Nigeria 1999 (As Amended) on matters relating to the operation of the Companies and Allied Matters Act or any other enactment regulating the operation of companies incorporated under the Companies and Allied Matters Act, section 284(1)(b) of the Investments and Securities Act went on to confer similar jurisdiction to the Investment and Securities Tribunal.
I am however of the firm view that the provisions of the Investments and Securities Act cannot stand the hallowed provisions of the constitution of the Federal Republic of Nigeria being the grund norm. In fact, Section 1(3) of the Constitution states very clearly and unequivocally that if any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail and that other law shall to the extent of the inconsistency be void. It goes therefore to say that the Federal High Court and not the Investments and Securities Tribunal has exclusive jurisdiction in matters relating to companies (whether capital market operators or not) incorporated under the Companies and Allied Matters Act. Thus to the extent of its inconsistency with the provisions of the Constitution, the provisions of the Investments and Securities Tribunal is void.
Leaving this Act (Investment and Securities Act) as it now is only making a mockery of our revered Constitution. As such the Act should be amended to uphold the superiority of the Constitution.
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