AN APPRAISAL OF THE LAW AND PRACTICE OF THE INVESTMENTS AND SECURITIES TRIBUNAL IN RESOLVING CAPITAL MARKET DISPUTES IN NIGERIA

AN APPRAISAL OF THE LAW AND PRACTICE OF THE INVESTMENTS AND SECURITIES TRIBUNAL IN RESOLVING CAPITAL MARKET DISPUTES IN NIGERIA

Abstract:

Acceptable dispute resolution mechanism is a major factor intending investors seek before investing in any viable international contractual relationship. The Nigerian capital market is a major player of wealth creating and improving the Nigerian economy as the market is open to both local and international investors. Disputes being part of human nature may occur in business relationship. The Nigerian capital market is a special kind of market and transactions before the market is mainly trading of chooses in action. The methodology of resolving disputes from this sector must be such that is fast, flexible and meets international best practices. The conventional courts are already loaded with myriads of cases, leaving commercial disputes many years before final judgment, being that lawyers key into every opportunity to seek for adjournment. The Investments and Securities Tribunal was conceived to resolve capital market dispute in a fast, timely and professional manner with justice as it main thrust. This research” An Appraisal of the Law and Practice of the Investments and Securities Tribunal in resolving Capital Market Dispute in Nigeria” considered the mechanism for the resolution of capital market disputes under the Investments and Securities Act by the Investments and Securities Tribunal.This research focuses to reveal that there is no conflict between the jurisdiction of the IST and that of the Federal High Court in resolution of capital market in Nigeria. The focal aim of this research is to reveal that there is a different between the establishment and Jurisdiction of the IST.This research adopts the doctrinal research method as the principal method of retrieving information, expanding or analyzing the gathered information. The primary sources of material for this research are relevant statutes and judicial authorities. Secondary materials are extracted from journals on written articles therein, text books on the wide range of commercial law and written text on securities law. PhD thesis and LL.M dissertations on related field on securities law and practice are analyzed. Seminar papers, handbooks from the Securities and Exchange Commission and decided cases were important materials that were accessed for this research.The jurisdiction of the Investments and Securities Tribunal has been confused with the establishment of the tribunal. This dissertation has separated the concept of jurisdiction and establishment of the tribunal and reiterated the exclusivity of the jurisdiction of the tribunal that is separate and distinct from thatof the Federal High Court. But despites the good found in the establishment of the tribunal, below are some major findings.This research finds that section 275, 281 and 315 of the Investment and Securities Act (ISA) saddled the responsibility of appointing and removing the Chairman and Members of the IST without recourse to the National Assembly and or the National Judicial Council on the Minister of Finance. By the provisions of sections 275, 281 and 315 of the ISA, the IST would hardly be impartial in deciding any issue involving the Federal Government of Nigeria and a market operator. This research has also noted that Section 289 (5) of the ISA provided three months from the date of commencement of hearing to the date of judgment. This aspect of the modus operandi of the Tribunal may affect substantial justice due to time constraint to resolve all legal issues and it goes with the popular saying that justice rush may be justice crush. This is further place on the scale of the right of a litigant pursuant to section 240 and 241 of the Constitution, that grants right of appeal on any ruling of the tribunal that may affect the right of a litigant.By virtue of section 293 (3) of the Investment and Securities Act, the Tribunal does not have the mechanism of enforcing its judgment but a reliance on the Federal High Court which may stand as a reason for delay of enjoyment of judgment by litigants, as the Chief Registrar of the Federal High Court cannot be compelled by the Tribunal to register the judgment of the Tribunal as that of the Federal High Court. The registration of IST’s judgment at the Federal High Court may lead to forum chopping, as litigants that wants to challenge an improper execution of judgment would be faced with the issue of which of the two courts to approach. The development of modern scientific and computerized businesses in Nigerian is not alien to the Nigerian capital market. These wide beneficial modernizations have also brought with it a wide range of dangers that may lead to crime. Section 290 (3) of the ISA qualifies the IST as mere civil court without criminal jurisdiction. The danger of describing the IST as having only a civil jurisdiction lends investors and some market operators to the failure of not effectively covering the cybercrimes or cyber related criminal transaction that could also occur at the Nigerian capital market. The absence of criminal jurisdiction and power of the IST have inhibited the IST to fully cover all operations in the Nigerian capital market as a specialized court. Cyber criminals and or cybercrimes are left to the regular courts, the Economic and Financial Crimes Commission and the Attorney General of the Federation to prosecute such offenders even though the main or genealogy of the crime emanates from the Nigerian capital market.This research recommends as follows. This research recommends that section 275 of the ISA should be amended by the National Assembly and the said section should read; the Tribunal shall consist of ten members who shall be appointed by the Minister of Finance on the recommendation of the National Judicial Council. The first recommendation of this research is that the appointment of the chairman and members of the IST by the Minister of Finance should be subject to the recommendation of the National Judicial Council. Section 289 (5) of the ISA should be amended by the National Assembly to read: “The Tribunal shall, in the exercise of its powers under this Act, conduct its proceedings in such manners as to avoid undue delays and may dispose of any matter before it finally, if practicable, within three months from the date of the commencement of the hearing of the substantive action”. There is the need to delete section 293 (3) of the ISA and the National Assembly should extend the jurisdiction of the Chief Registrar of the IST to the extent of enforcing the judgment of the IST without recourse to the Chief Registrar of the Federal High Court. Or, in the alternative, the National Assembly should enact sub-section (4) of Section 293 of the ISA to read “Failure of the Chief Registrar to register the judgment of the Tribunal within 14 days from the date of the payment of appropriate filling fees, the Tribunal shall mandate the Chief Registrar of the Federal High Court and shall award adequate cost against the Chief Registrar”. Section 290 (3) of the ISA should be amended and the National Assembly should delete the word “civil court” from the said section. The IST should be allowed to assume criminal jurisdiction only when the criminal matter and or case emanates from a matter that is before the Tribunal

AN APPRAISAL OF THE LAW AND PRACTICE OF THE INVESTMENTS AND SECURITIES TRIBUNAL IN RESOLVING CAPITAL MARKET DISPUTES IN NIGERIA