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Effective Dispute Resolution – a Panacea for the Transformation of the Nigerian Capital Market

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Effective Dispute Resolution – a Panacea for the Transformation of the Nigerian Capital Market THE 2016 JUDGES WORKSHOP – EFFECTIVE DISPUTE RESOLUTION – A PANACEA FOR THE TRANSFORMATION OF THE NIGERIAN CAPITAL MARKET The 2016 Edition of the SEC Judges workshop was held on the 24th -25th of February, 2016 at the National Judicial Institute, Abuja. The event was declared open by the Chief Justice of Nigeria (CJN), Hon. Justice Mahmud Mohammed, GCON, FNJI ably represented by His Lordship, Hon. Justice Ibrahim Tanko Muhammad, JSC, CON, FNJI. The workshop with the theme “Effective Dispute Resolution – A Panacea for the Transformation of the Nigerian Capital Market”, had in attendance several distinguished personalities from the Legal profession, the capital market, the legislature and top Government functionaries. Notable amongst the attendees was the former Chief justice of Nigeria, Hon. Justice Dahiru Musdapher GCON, Professor Dalvinder Singh Sangha (a Professor of Law from the University of Warwick, United Kingdom), Senator Isiaka Adeleke (Chairman, Senate Committee on Capital Market), Hon. Tajudeen Ayo Yusuf (Chairman, House Committee on Capital Market), Justices of the Court of Appeal, Chief Judges of States and Honourable Judges of the Federal High Court. Delivering the special paper titled Contextual approach to Enforcement Strategy and Sanctions, Prof. Dalvinder Singh Sangha posited that a Regulatory-Enforcement Strategy needs to be built around a relationship between the regulator and regulated where enforcement through legal channels of rules is not necessarily its first response. He advocated for the application of both a compliance and a deterrence based approach to enforcement, stressing that there was need for the existence of both approaches to deal with the variety of enforcement issues a regulator will confront during its day to day oversight of the financial system. Other papers delivered at the workshop include; 1. Current Reforms in the Nigerian Capital Market and the Role of the SEC presented by Ms. Daisy Ekineh (former Executive Commissioner Operations and Acting Director General SEC) 1 | P a g e 2. Dispute Resolution in the Capital market: A Review of Administrative and Judicial Mechanisms presented by Chief Anthony Idigbe, S.A.N (Punuka Attorneys). 3. The Nigerian Securities Market and Regulation: Industry Challenges and Expectations from the Judiciary presented by Professor Konyinsola Ajayi, S.A.N (Olaniwun Ajayi LP.). 4. Investor Protection and Dispute Resolution Mechanisms in the Nigerian Capital Market presented by Dr. Ngozi Chianakwalam, (Chairperson of the Investment & Securities Tribunal). 5. Pertinent Issues in the Adjudication of Disputes arising from the Capital Market presented by Justice Abdu Kafarati of the Federal High Court, Abuja. Prof. Koyinsola Ajayi S.A.N, in his paper, delivered by Mr. Muyiwa Balogun of Olaniwun Ajayi LP, explained the important role of the capital market to the development of an economy. The learned SAN posited that an efficient and effective capital market is the foundation of any meaningful and sustainable economic growth. He added that the efficiency and effectiveness of the capital market however depends on the robustness of its legal and regulatory framework. He stated that the provisions of the Investment and Securities Act 2007 (ISA) and the Rules and Regulations of the SEC as well as the other capital market related rules prevalent in Nigeria cannot in themselves achieve investor protection. The courts have a critical role to play in applying the relevant laws and rules in order to foster effective regulation of the capital market, achieve investor protection and legal certainty. This would enable investors and capital market operators understand the laws and rules applicable to them, predicate the consequences of their actions and properly order their affairs. He further opined that the ongoing jurisdictional controversy between the Federal High Court and the IST, in his opinion would have a negative impact on the capital market and the nation’s economic growth. Chief Anthony Idigbe, S.A.N in delivering his paper, advocated for deference to the decisions of both the Administrative Proceedings Committee (APC) of the Commission and the Investment and Securities Tribunal (IST) by the Nigerian Courts. The learned 2 | P a g e S.A.N urged the courts to act in this regard giving consideration to the level of expertise and special knowledge applied by the assessors of both bodies in adjudicating over capital market disputes. He submitted that challenges to decisions of these bodies should be subjected to judicial reviews, rather than a jurisdictional conflict as it exists today. He opined that there was need for the courts to adhere strictly to the principles applicable for the administration of judicial reviews, which would reduce the rate at which the decisions of these bodies would be overturned by the courts. Dr. Ngozi Chianakwalam, Chairperson of the Investment & Securities Tribunal (IST) outlined the importance of the IST and also elucidated on some of the judgments delivered by the tribunal and their impact on investors’ confidence. Justice Abdul Kafarati of the Federal High Court, shared his thoughts on the controversies surrounding the jurisdiction of the IST vis a vis the powers of the Federal High Court as provided in the Constitution of the Federal Republic of Nigeria Participants at the workshop agreed that the jurisdictional controversy around adjudication on capital market related matters between the IST and the Federal High Court was a constitutional one that could permanently be cured by a constitutional amendment. In this regard, Senator Isiaka Adeleke, in his goodwill message had assured the forum that the National Assembly was willing to assist the Commission in advocating for legislative amendments to laws which would enhance the development of the capital market. Having deliberated exhaustively on the issues raised, participants adopted the under listed as the communique for the workshop: 1. In the quest to develop a vibrant capital market, the central role of the Judiciary in the maintenance of market integrity cannot be overlooked. Without fair, prompt and effective dispensation of justice, the Nigerian capital market cannot achieve its aspiration of becoming a world class capital market that catalyzes Nigeria’s emergence as a major global economy. 3 | P a g e 2. The Workshop should be an annual calendar event to strengthen collaborations between the capital market and the Judiciary. 3. The current market wide reforms by the SEC, which is part of the full implementation of the 10 year Master plan (2015-2025), such as the E-dividend initiative, Full Dematerialization, Direct Cash Settlement and the Complaints Management Framework are ground breaking initiatives that would revolutionize the Nigerian capital market. However, a robust framework for National capacity building, Continuing Education and Enlightenment in the market is central to consolidating the gains of these reforms. 4. Issues surrounding the Judicial review of decisions of SEC’s Administrative Proceedings Committee (APC) by the Investments and Securities Tribunal and the Federal High Court need to be decisively addressed to preserve and enhance the integrity of the dispute resolution mechanism in the capital market. 5. A comprehensive reform agenda for the Investments and Securities Tribunal (IST) needs to be urgently instituted. This would address issues pertaining to the Jurisdiction, funding and constitution of members of the Tribunal. In the interim, the IST should be supported by all stakeholders to continue performing its responsibilities under the ISA 2007. 6. The SEC should promote Securities Arbitration and other Alternative Dispute Resolution (ADR) mechanisms to facilitate expeditious dispensation of Justice in the capital market. 7. Judicial pronouncements and decisions on capital market issues should be progressive, taking into consideration the overriding wellbeing of the market and the protection of investors. Injunctive reliefs that inhibit the statutory powers of the Regulator to sanction erring capital market operators should only be granted 4 | P a g e after a careful analysis of the impact such orders have on market integrity and investor confidence. 8. The adoption of the doctrine of judicial deference in capital market matters should be encouraged. This connotes the acknowledgment by the Courts (in their adjudication of capital market disputes) of the specialized (technical) knowledge and expertise of the SEC and other market Regulators. 9. The entire gamut of Regulation in the capital market is the protection of investors and the hallmark of investor protection is dispute resolution. However, the investor protection and dispute resolution mechanism in the market must be supported by an equally robust enforcement framework. 10. The controversies and conflicting Judicial decisions with respect to the jurisdiction of the IST vis a vis the Federal High Court on capital market matters need to be conclusively tackled via a Constitutional amendment. The capital market should present a position in this regard to the National Assembly, which may be accomplished either by streamlining constitutional the powers of the Federal High Court in respect of capital market matters or bringing the IST under the appellate purview of a specialized division of the Federal High Court. 5 | P a g e .
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