PRACTICE NOTE ON APPEALLATE PROCEEDING AT THE IST

 

 

 

 

Introduction

  • As part of the federal government reform agenda for the Nigerian Capital Market to provide an adjudicatory framework and make statutory provisions for predictability and certainty in dispute resolution, the Investment and Securities Tribunal (“IST”) was established as an independent specialized judicial body under section 274 of the Investment and Securities Act 2007 (“ISA 2007”)[1] to adjudicate Capital Market disputes and to interpret any law, rule, or regulation as may be applicable to capital market transactions and relationships.
  • The IST Rules 2014 provides two ways of commencing proceedings before the Tribunal as follows:
    • Notice of Appeal;[2] and
    • Originating Application to the Tribunal.[3]
  • In practice, most disputes instituted before the IST for resolution comes under its appellate jurisdiction because aggrieved persons are usually required to lay their complaints first with the Securities and Exchange Commission (“SEC”), and the SEC channels the complaints to its Administrative Proceedings Committee (“APC”).[4] When the APC gives its decision, then there is room for appeal to the IST.
  • The IST Rules states that an appeal to the Tribunal shall be by Written Notice. An appeal form for making an appeal may be obtained from the Registry of the Tribunal or the Notice of Appeal may be by a form accepted by the Tribunal.
  • The Notice of Appeal shall state:
    • The name and address of the person making the appeal;
    • That the notice is a Notice of Appeal; and
    • The date, address and profession of the representative of the appellant and whether the Tribunal should send replies or notices concerning the appeal to the representatives instead of the appellant.
  • Also, every appeal shall be accompanied by:
    • The disputed decision;
    • Record of appeal of the disputed decision or bundle of documents relating to the trial being appealed against; and
    • Appellant’s brief of argument.
  • The IST Rules also provides that any party, upon receipt of a copy of a Notice of Appeal, shall send or deliver to the Chief Registrar, a written reply acknowledging receipt of the Notice of Appeal and stating:[5]
    • whether or not the party intends to oppose the appeal and the reasons on which he relies in opposing the appeal;
    • the name, address and profession of the representative of the party and whether such address is the address for the sending and delivering of documents to the party for the purpose of the appeal;
    • if in the opinion of the party any other person has a direct interest in the subject matter of the appeal, the name and address of that person; and
    • The Respondent shall also file a Respondent brief of argument and send or deliver copies to the Chief Registrar such numbers of copies as may be requested.
  1. Settlement and Transmission of Records of Appeal at IST
    • It is the responsibility of an appellant in a notice of appeal to ensure that the record of

appeal is made available to the Tribunal expeditiously. Hence, the Appellant is expected to compile and obtain Record of proceedings from the APC after payment of stipulated fees. This is important as no hearing date shall be fixed until the record of appeal as well as the briefs of argument of the parties are filed. This is however, without prejudice to any application by any party.

  • A party is required under the IST Rules to submit 15 (fifteen) copies of every process plus such number of copies to be served on the parties to the suit to the registry.
  1. Our Recent Experience at the IST – Is IST a Fund-Generating Government Institution?
    • Our Firm has acquired considerable expertise in handling matters before the IST over the years with significant success in several cases. Our recent experience at the Tribunal has raised a nagging question on the procedure for placing reliance on Records of Appeal already filed by a Co-Respondent but Appellant in a sister appeal.
    • In our instant case, our clients being displeased with the decision of the APC had appealed to the IST to set aside the disputed decision of the APC. One of the Respondents in the matter at the APC (now Appellant at the IST having filed an appeal against the decision of the APC) had, already compiled and transmitted the records of appeal to the IST. Upon filing of our own Notice of Appeal at the IST and given that the same set of documents contained in the earlier transmitted records of appeal in the sister appeal would be used for our own appeal, we simply applied to the IST for leave to rely on the records already compiled by the other party while also seeking leave to file a supplementary Record to bring/include our Notice of Appeal and Pre- action Notice to SEC before the IST.
    • The essence of our application was to save the time of the Tribunal as the Records we intend to rely on was essentially the same as that filed by the Appellant in the sister appeal as we were all parties to the same proceedings before the APC and in fact the appeals would be (and have subsequently been) consolidated.
    • While ruling on our application for leave, the Tribunal granted our request to rely on the Records of Appeal earlier filed and transmitted to the IST by the Appellant in the sister appeal as expected, but surprisingly (and unexpectedly) ordered that we pay the full cost of compiling and transmitting our own separate records of appeal to the Tribunal as not doing so “will rob the government of expected revenue.”
    • In our considered opinion, the position taken by the Tribunal is not in tandem with the overriding objective of the Tribunal as provided in the IST Rules which is to provide a reliable, informed, expedient, flexible and affordable dispute settlement mechanism for investors and other market participants.[6]
  2. Comments
    • Without doubts, the establishment of the IST has provided a distinct body for the resolution of capital market disputes. However, the Tribunal’s decision directing us to pay the fees that we would have spent to compile and transmit records of appeal to the Tribunal while granting us leave to rely on the already transmitted records of appeal in the sister appeal, was a strange decision. It is our view that the Tribunal needs to update its mode of practice to ensure quick dispensation of justice devoid of needless technicalities and focus on its core mandate to improve investors’ confidence in the capital market rather than adding an extra mandate of generating revenue for government.
    • One way of improving the proceedings of the Tribunal is to amend the current Rules of the IST to enable it incorporate global best practices of efficiency and flexibility in resolving specialized disputes and assist the Tribunal in achieving its overriding objectives. But in amending the rules, fund-generation should not be a main focus of the Tribunal.
    • The current efforts by the Chairman of the IST to amend the Rules[7] of the IST is commendable and the decision to get the input of stakeholders on the Draft Rules will hopefully lead to the adoption of a more comprehensive and suitable Rules that will aid the Tribunal in speedier resolution of Capital Market disputes with less emphasis on technicalities or generation of revenue.

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For further information on this article and area of law, please contact

Olaoye Olalere and Uche Matthew at:  S. P. A. Ajibade & Co., Lagos by telephone (+234 1 472 9890), fax (+234 1 4605092) mobile (+234.815.979.4216, +234.802.371.4067) and (+234.815.119.1865, +234.806.644.4001) or email (oolalere@spaajibade.com); (umatthew@spaajibade.com)

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CITATIONS

[1]      (Act No. 29). The ISA is the principal legislation that regulates investments and securities business in Nigeria.

[2]      See Order 2 Rule 1 of the IST Rules.

[3]      See Order 2 Rule 1 of the IST Rules.

[4]    The APC is the internal administrative organ of the Securities & Exchange Commission (the Commission) established in year 2000 pursuant to section 29(7) and 259 of the Investments and Securities Act (ISA) 2007 to afford opportunity of hearing to parties alleged to have breached the provisions of the securities laws and regulations.

[5]       Order 2 Rule 9 of the IST Rules 2014.

[6]       Order 1 Rule 2 of the IST Rules 2014.

[7]       A copy of the proposed IST Rules 2021 can be accessed via this link.