Amos O. Aro V. Salami Fabolude (1983)

LawGlobal-Hub Lead Judgment Report

NNAMANI  J.S.C. 

In this Suit which commenced in the High Court of Lagos State as Suit No. LD/404/80, the plaintiff (i.e. respondent herein) brought a claim against the defendants (appellants herein) in the following terms:

“1. Specific performance of an agreement between the parties and evidenced in letters dated 10th January 1976, 28th January, 1976, and 2nd February, 1976, whereby the defendants promised to execute legal mortgage of the defendants’ properties lying and situate at (a) Herbert Macaulay Street, Yaba, Lagos (b) Adekunle Fajuyi Street, Ibadan (c) Ijebu-Bye Pass, Oke Ado, Ibadan (d) 21 Barracks Road, Calabar and (e) Mile 3 Abe/Port Harcourt Road, Aba; in favour of the plaintiff to secure various overdrafts amounting to over N2,000,000 made, to the defendants in Lagos between 1976 and 1978.

2. The sum of N2,135,092.57k (Two Million One Hundred and Thirty Five Thousand Ninety Two Naira and Fifty Seven Kobo) being balance due to the plaintiff for overdrafts granted by the plaintiff to the first defendant at the plaintiff’s Mushin and Ebute Metta Branches, in the normal course of their business as bankers to first defendant at their request and for bank charges, incidental expenses upon money due from the defendants to the plaintiffs which money the defendants have refused and/or neglected to pay in spite of repeated demands. Plaintiff also claims interest on the said sum of N2, 135,092.57k at the rate of 8% per annum from 1st October, 1979, until final liquidation of the whole debt or part thereof.”

Pleadings were ordered and were duly filed and exchanged by the parties. After a protracted trial in which 28 exhibits were tendered and received in evidence, Onalaja, J. in a detailed and painstaking judgment delivered on 24th April, 1981, found in favour of the plaintiff bank. His judgment was in the following terms:

“(a) An order of specific performance against the defendants to execute legal mortgage of their properties situate, lying, designated, described as (i) 400 Herbert Macaulay Street, Yaba, Lagos and (ii) 21 Barracks Road, Calabar in favour of the plaintiff. (b) The total sum of N2, 135,092.57k plus interest at the rate of 8% before this judgment and 4% thereafter this judgment until final liquidation of the judgment debt.

(c) The sum of N500,000 against the second defendant as a guarantor of the first defendant with interest at the rate of 8% per annum before judgment and 4% thereafter.”

The appellants herein being dissatisfied with that judgment appealed to the Federal Court of Appeal (hereinafter referred to as the Court of Appeal). I may just in passing mention that in the course of the proceedings before that court a third party intervened in relation to the ownership of 400 Herbert Macaulay Street, Yaba, one of the properties in respect of which the learned trial judge had granted an order of specific performance. It may also be pertinent to mention, particularly as it is one of the grounds on which the appellants have complained to this Court, that the Court of Appeal allowed the respondent to amend paragraphs 3, 4, 6, 7, 8 and 9 of the statement of claim by substituting the words “Bronik Motors Incorporated” for the words “the first defendant”. It also allowed additional words to paragraph 39 of the statement of claim to indicate that the sum claimed included payment made in respect of letters of credit it opened at the request of the first appellant. The Court of Appeal exercised this power pursuant to Order 1 rule 20 of the Rules of that Court and section 18 of the Federal Court of Appeal Act, 1976. The amendments, the court ruled in its judgment dated 6th July, 1982

(Ademola, Nnaemeka-Agu and Mohammed, JJ.C.A.). were to prevent any substantial injustice. They did not, it further said, introduce any new matters but rather made “evidence already given and exhibits tendered more intelligible to follow and understand”. In the said judgment, the Court of Appeal dismissed the appellants’ appeal and confirmed the judgment of the High Court in part. The order for specific performance made by the High Court in respect of 400 Herbert Macaulay Street, Yaba, and 21 Barracks Road, Calabar was set aside as null and void. It is against this judgment that the appellants have appealed to this Court.

By leave of this Court, an amended notice of appeal containing 13 grounds of appeal was filed by the appellants. As this appeal will turn on the proper interpretation of section 7 of the Federal Revenue Court Act 1973 (No. 13 of 1973) and section 230 of the Constitution of the Federal Republic of Nigeria, 1979 (hereinafter referred to as the 1979 Constitution) on which learned counsel for both parties addressed us extensively, I do not propose to set down all the grounds. In ground 13 the appellants complained that:

“The Federal Court of Appeal and the Lagos High Court erred in law in failing to observe that jurisdiction over the claim in this action is vested in the Federal High Court and not in the High Court of Lagos State.

Particulars of Error

(a) Section 230 (1) of the Constitution of the Federal Republic of Nigeria confers jurisdiction in respect of all matters in the Exlusive Legislative List in the Federal High Court.

(b) In the alternative, section 7 of the Federal High Court Act (sic) confers jurisdiction in respect of “civil causes and matters … connected with or pertaining to . . . banking” in the Federal High Court.

(c) Section 8 (1) of the said Act prohibits the High Court or any other court of a State from exercising jurisdiction.