Afribank Nigeria Plc V. Bonik Industries Limited (2005)
LawGlobal-Hub Lead Judgment Report
IBIYEYE, J.C.A.
The matter culminating in this appeal was instituted by the plaintiff now the respondent by means of procedure on the undefended list through a specially endorsed writ of summons filed in the Ibadan Judicial Division of the High Court of Justice, Oyo State of Nigeria.
In strict compliance with the attendant procedure for instituting any matter on the undefended list, the respondent filed a twenty four paragraph supporting affidavit.
The trial court, on the 20th October, 2000 appeared satisfied with the service of hearing process on the defendant now appellant who was absent. The learned trial Judge, in a short judgment on the same day (supra) held, inter alia,
“In the circumstances, I hereby give judgment to the plaintiff in terms of the writ of summons as follows:
(1) Judgment for a sum of N3, 723,685.68k three million, seven hundred and twenty three thousand, six hundred and eighty five naira sixty-eight kobo-(sic) being the total sum of undue excess interest charges imposed and deducted by the defendant at source in the bank accounts of the plaintiff with the defendant between July, 1994, 1995, 1996, 1997, 1998 and March, 2000 (sic).
The out of pocket expenses was N5050.00 (sic) and today is the fourth appearance of plaintiff and counsel. I therefore award a costs of N10, 000,00 accordingly (sic).”
The appellant was aggrieved by the judgment of the trial court and appealed to this court on three grounds of appeal.
Both the appellant and the respondent, as required by the pertinent aspects of the rules of this court, filed and exchanged their respective briefs of argument. At page 9 of the appellant’s brief of argument, the appellant indicated its willingness to abandon grounds 2 and 3 of the grounds of appeal. Those two grounds of appeal are accordingly struck out.
The appellant raised the following single issue from the surviving ground of appeal for the determination of this appeal:
“Whether or not the trial court lacked jurisdiction to hear and determine the said “undefended suit.”
The respondent, on its part, adopted the only issue identified by the appellant for the determination of this appeal.
At the hearing of the appeal, both learned counsel for the appellant and the respondent respectively adopted, relied and to some extent amplified the only issue in the briefs of argument of the parties.
On the only issue for consideration in this appeal, Otunba O.O. Ogunyemi, the learned counsel for the appellant, argued that the learned trial Chief Judge of Oyo State, Honourable Justice M.O. Adio, (as he then was) lacked jurisdiction to hear and determine the suit in point and that the judgment therefrom is a nullity. He stated the time tested and accepted principle on jurisdiction that it is a radical and fundamental pre requisite for adjudication and that it is of utmost importance in the administration of justice. He went on to set out the pre requisites for founding jurisdiction in any litigation and cited in support the cases of Matari v. Dangaladima (1993) 3 NWLR (Pt. 281) 266 at 275 and Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR 584.
Learned counsel contended that the instant case was based on a contract agreement between the parties as stated in exhibit Lion pages 9 to 13 of the record of appeal and that the letter on banking deducted by the defendant at source in the bank accounts of the plaintiff with the defendant between July, 1994, 1995, 1996, 1997, 1998 and March, 2000 (sic).
(2) The out of pocket expenses was N5050.00 (sic) and today is the fourth appearance of plaintiff and counsel. I therefore award a costs of N10, 000.00 accordingly (sic).”
The appellant was aggrieved by the judgment of the trial court and appealed to this court on three grounds of appeal.
Both the appellant and the respondent, as required by the pertinent aspects of the rules of this court, filed and exchanged their respective briefs of argument. At page 9 of the appellant’s brief of argument, the appellant indicated its willingness to abandon grounds 2 and 3 of the grounds of appeal. Those two grounds of appeal are accordingly struck out.
The appellant raised the following single issue from the surviving ground of appeal for the determination of this appeal:
“Whether or not the trial court lacked jurisdiction to hear and determine the said “undefended suit.”
The respondent, on its part, adopted the only issue identified by the appellant for the determination of this appeal.
At the hearing of the appeal, both learned counsel for the appellant and the respondent respectively adopted, relied and to some extent amplified the only issue in the briefs of argument of the parties. On the only issue for consideration in this appeal, Otunba O.O. Ogunyemi, the learned counsel for the appellant, argued that the learned trial Chief Judge of Oyo State, Honourable Justice M.O. Adio, (as he then was) lacked jurisdiction to hear and determine the suit in point and that the judgment therefrom is a nullity. He stated the time tested and accepted principle on jurisdiction that it is a radical and fundamental pre requisite for adjudication and that it is of utmost importance in the administration of justice. He went on to set out the pre requisites for founding jurisdiction in any litigation and cited in support the cases of Matari v. Dangaladima (1993) 3 NWLR (Pt. 281) 266 at 275 and Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR 584.
Learned counsel contended that the instant case was based on a contract agreement between the parties as stated in exhibit L1 on pages 9 to 13 of the record of appeal and that the letter on banking facility (exhibit L2) as respectively referred to in paragraphs 4 and 3 the supporting affidavit. He further contended that as per exhibit and L2 the offer and acceptance of the contract between the parties was made and completed at the Ilesa branch of the appellant in Osun Sate. He substantiated the issue of situs that the several statements account described as exhibit L3 in the affidavit were issued at the Ilesa branch of the appellant where they (the accounts) are domiciled.
He expatiated, based on the available circumstances of this case, that the operations of the accounts which included the charging of alleged excessive interests, the debiting, crediting and deductions of the said interests as well as the bank charges at source took place in the Ilesa branch of the appellant.
The learned counsel submitted that the cause or causes of action of the respondent’s claim contained in its specially endorsed writ of summons deposed to in paragraphs 3, 4, 5, 9, 13, 20 and 22 of the affidavit sworn to by Mr. Remi Akintoye, the Chairman, Board of Directors of the respondent arose at the Ilesha branch of appellant in Osun State. He particularly referred to exhibit L3, L4 and L5 which dealt with the alleged excess charges on Account No. 3600403P. He urged the court to allow the appeal.
In reply, Professor J.O. Anifalaje, the learned counsel for the respondent made copious submissions in order to sustain the judgment of the trial court. Thus, he specifically referred to the fact that the appellant failed to appeal against the judgment of the trial court and was therefore caught by the doctrine of estoppel. I shall cursorily remark that the doctrine of estoppel be it cause of action estoppel or issue estoppel hardly arises when the capacity of the court to assume power or better still jurisdiction in any matter before it is raised. The court has a bounden duty, in the interest of doing justice among contesting parties to first determine the issue of jurisdiction in the matter before starting any proceedings on such application. In other words, jurisdiction is so fundamental that the adjudicating court should determine the issue first before starting any proceedings and if the court proceeded and it was found that the court had no jurisdiction in the matter, all the proceedings however well conducted will amount to nothing but a nullity. The action is therefore subject to being struck out. See Okolo & Anor. v. U.B.N. Ltd. (2004) 3 NWLR (Pt. 859) 87 at 110; Jeric Nigeria Ltd. v. U.B.N. Plc. (Oct. to Dec.2004) 4 NSCQR 254 at 263; (2000) 15 NWLR (Pt.691) 447 Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501; Baba v. Habib Nigeria Bank Ltd. (2001) 7 NWLR (Pt. 712) 496.
The learned counsel for the respondent further contended that since the appellant is, as a matter of fact, resident in Ibadan in Oyo State, the trial court had equitable jurisdiction, as its corporate branch or regional office constitutes its corporate residence and relied on the cases of NIPSS v. Kraus (2001) 15 WRN 79 at 91 and U.N.N. v. Orazulike Trading Co. (1989) 5 NWLR (Pt. 119) 19. He urged the court to dismiss the appeal.
I had exerted sufficient efforts to grapple with the meaning of “equitable jurisdiction” to no avail. The word “equitable” means just, comfortable to the principles of justice and right. All known ramifications of “equitable” appear not to include equitable jurisdiction. Jurisdiction is a term of large and comprehensive import as it embraces every kind of judicial action. Jurisdiction exists when a court has cognizance of the class of cases involved, proper parties are present and the point to be decided is within the powers of the court. I admit that the term “jurisdiction” could have suffixes such as “jurisdictional dispute”, jurisdiction in rem and jurisdiction in personam” to mention a few. The term jurisdiction does not, in my view, admit of a prefix such as the one in point. Jurisdiction is all embracing whether it is described as legal or equitable. It is, in essence, the legal right conferred on a court by relevant legislation.
This appeal is pivoted on the threshold issue of jurisdiction. It is apparent from the record of proceedings that this issue was not raised at the court of first instance that is to say the Ibadan Judicial Division of the Oyo State High Court of Justice. It is, however, a well settled principle of law that the issue of jurisdiction which determines the competence of the court to exercise it (jurisdiction) can be raised at any stage of a trial and indeed even for the first time on appeal. See Bronik Motors Ltd. & Anor v. Wema Bank Ltd, (1983) 1SCNLR 296; (1983) 6 Sc. 158; Eze v. Federal Republic of Nigeria (1987) 1 NWLR (Pt. 51) 506 at 516 and Onyema v. Oputa (1987) 3 NWLR (Pt. 60) 259. It is also in the interest of justice to raise the issue of jurisdiction viva voce and suo motu by the court so as to save time and cost and to avoid a trial in nullity. See Petrojessica Enterprises Ltd. & Anor. v. Leventis Technical Co., Ltd. (1992) 5 NWLR (Pt. 244) 675 at 696; (1992) 6 SCNJ 154 at 166/167; Osadebay v. Attorney-General, Bendel State (1991) 1 NWLR (Pt. 169) 525 and Katto v. Central Bank of Nigeria (1991) 9 NWLR (Pt. 214) 126.
The instant case which was placed on the undefended list was instituted by means of a specially endorsed writ of summons. The special feature in a writ of summons specially endorsed by the plaintiff when the defendant has entered appearance is that the plaintiff may, on an affidavit made either by himself or by any other person who can swear positively to the fact, verify the cause of action and the amount claimed (if any liquidated sum is claimed) and state at in his belief there is no defence to the action. See order 23 rule 1of the High Court (Civil Procedure) Rule of 1988 of Oyo State. The foregoing, inter alia, is to the effect that the cause or causes of action can be discerned from the depositions in the supporting affidavit.
A cause of action is a factual situation. It consists of every fact which would be necessary for the order to support his right to judgment.
A cause of action is equally that bundle or aggregate of facts which the law will recognize as giving the plaintiff a substantive right to make a claim for the relief or remedy being sought. Thus, the factual situation on which the plaintiff relies to support his claim must be recognized by law as giving rise to a substantive right capable of being claimed or enforced against the defendant. See Egbe v. Adefarasin & Anor. (1985) 1 NWLR (Pt. 3) 549; Union Bank of Nigeria Ltd. & Anor. v. Penny-Mart Ltd. (1992) 5 NWLR (Pt. 240) 228 and Ajayi v. The Military Administrator Ondo State & 2 Ors. (1997) 5 NWLR (Pt. 504) 237 at 272.
It is pertinent that in a case placed on the undefended list and the writ of summons is specially endorsed to look at the supporting affidavit in order to see if it will disclose any cause or causes of action.I have perused the supporting affidavit and I agree with the learned counsel for the appellant that its paragraphs 3, 4, 5, 9, 13, 20 and 22 are of moment to the issue of cause of action and attendant jurisdiction. I shall by way of illustration only reproduce paragraphs 3, 4, 9, 10, 13, 20, 22 and 23 of the supporting affidavit. It is equally pertinent to point out that the plaintiff being a juristic person could not swear to an affidavit. It did so through Mr. Remi Akintoye, the Chairman of the plaintiff and that he served as the plaintiff’s agent generally and specifically in respect of the subject matter of the suit in point, as per paragraphs 1and 2 of the said affidavit. The itemized paragraphs of the affidavit (supra) read:
“3. That in the capacity of such agency, I was one of the two signatories who accepted the loan and offer overdraft of the defendant in exhibit L1.
- That by the terms of the loan and overdraft contract between the plaintiff and defendant which contract document is herewith attached as exhibit L2 (1), the total sum of N5 million was obtained from the defendant by the plaintiff after 26th April, 1999 (ii) the facility will expire on the 31st March, 2000, (iii) Legal mortgage on 3property (sic) at Alegongo Area in Ibadan stamped for N5 million and legal mortgage of the property located at the Ire Akari, Imo Quarters, Ilesa, stamped for Nl.25 million were executed between the plaintiff and defendant.
- That the plaintiff’s claim in this suit is to recover by way of refund, the excessive interest charges on the plaintiff/applicant’s loan and overdraft accounts which charges were imposed in the general bank statements spanning July, 1994 through March, 2000 by the defendant in the attached exhibit L3.
- That I strongly believe that the plaintiff has a good cause of action.
- That between July, 1994, 1995, 1996, 1997, 1998, 1999 and March, 2000, the defendant by means of… manipulation of the plaintiff’s loan and overdraft accounts charged the plaintiff excess interest and deducted those charges at source in the several statements of account issued to the plaintiff in our exhibit L3 hereof
- That the attention of the defendant had been drawn to the detailed particular of the revealed excessive interest charges and deductions by the defendant from the plaintiff’s loan and overdraft accounts in the relevant exhibits hereof giving the excess interest charges in individual transaction and the cumulative monthly, yearly and overall total of such excessive interest charges which is the total sum of N3, 723,683.68.
- That the unrefunded excessive charges are a debt and a liquidated money demand in favour of the plaintiff which has remained unpaid to date.
- That I believe that there is no defence to the plaintiff’s claim against the defendant. (italics for emphasis)
The depositions in the foregoing paragraphs and several others the supporting affidavit are that the suit entered in the instant undefended list was founded on contract of customer/banker relationship between the respondent and the appellant and that the appellant was in breach of that contractual relationship. There is also claim of a liquidated demand of the sum of N3, 723,683.68 for that breach. Several averments in the supporting affidavit referred to a number of exhibits which were attached therewith. I have perused those exhibits particularly exhibits L1, L2, L3, L4 and L5 which are to the effect that the contractual relationship between the appellant and the respondent started in Ilesa. It was executed in Ilesa. The breach which occasioned the liquidated demand took place in Ilesa.
Both the appellant and the respondent have their registered places of interest in Ilesa in Osun State. It is crystal clear that Ilesa in Osun State is the situs and therefore relevant to the failed contractual relationship that existed between the appellant and the respondent.
The argument of the learned counsel for the respondent is, inter alia, that Ibadan in which the corporate branch of the appellant is situate should constitute the corporate residence of the appellant.
Oyo State High Court should, according to him, have jurisdiction to consider and determine any issues affecting the contractual relationship between the two parties. I fail to agree with him. The determinant factor on the residence of a person as well as a juristic person which carries on business in two or more places at the same time is invariably based on facts. In effect, the issue as to where the place of control of the business of a natural person, corporation or juristic person is, one of facts based on the pleadings and evidence in support. That indeed is the trite position at law. See order 10 rule 3 of the High Court (Civil Procedure) Rules of Oyo State High Court 1988 which reads:
“3. All suits for specific performance, or upon the breach of any contract, shall be commenced and determined in the Judicial Division in which such contract ought to have been performed or in which the defendant resides or carries on business”
See also R. v. The Mayor of Exeter, Wescomb’s Case (1868) 4 L.R.Q.B. 110 at 113; Union Corporation v. I.R.C. (1952); U.N.N. v. Orazulike Trading Company Ltd. (supra) at 26 and 27. In the instant case, there is overwhelming affidavit evidence which subsumes fact that Ilesa in Osun State was consistently referred to as the place where the commercial transaction which culminated in the instant breach of contract between the appellant and the respondent took place. There is also affidavit evidence that the defendant/appellant resides in Ilesa and the banking transaction in point were performed in Ilesa. It is apparent that the attendant action for the breach of contract was instituted in Ibadan judicial division of Oyo State High Court of Justice. This recourse, in my view is an affront to the settled principle of law on situs as stipulated in section 10(1) of the High Court Law of Oyo State 1978 and order 10 rule 3 of the High Court (Civil Procedure) Rules of Oyo State 1988. It is also instructive to observe that, since the case in point deals with territorial jurisdiction, a suit which ought to have been brought in another State cannot confer jurisdiction on that wrong State even by agreement or consent of the parties. Such lack of jurisdiction is a fundamental vice. See Adesola v. Abidoye (1999) 14 NWLR (Pt. 637) 28 at 52; Okoroma v. Uba (1999) 1 NWLR (Pt. 587) 359 at 378.
The consequence of the instant case instituted in Ibadan Judicial Division in Oyo State High Court instead of Ilesa judicial division in Osun State High Court is that the former is devoid of jurisdiction.
It is now very well settled that where a cause of action or a matter is heard and a ruling or judgment is delivered without jurisdiction, the proceedings will be null and void ab initio. See Adesola v. Abidoye (supra.) at page 79 and Oshatoba v. Olujitan (2000) 5 NWLR (Pt.655) 159; (2000) 2 SCNJ 159 at 169.
The law is settled that where a court lacks jurisdiction, the proper order to make is striking out of the action. See Okolo & Anor. v. U.B.N. Ltd. (2004) 3 NWLR (Pt. 859) 87 at 110; Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501 at 534. In the instant case, since the respondent did not institute the action in point within the proper jurisdiction coupled with recoursing to undue process of law, the case in the trial court is incompetent and it is accordingly struck out.
In the final analysis, there is merit in the appeal. The judgment of the lower court is set aside. The action instituted by the respondent is, in consequence, struck out. I award costs of N5, 000.00 to the appellant.
Other Citations: (2005)LCN/1814(CA)
