Intergrated Timber And Plywood Products Ltd. Vs Union Bank Nigeria Plc (2006)

LAWGLOBAL HUB Lead Judgment Report

I. F. OGBUAGU, JSC

This is an appeal by the Plaintiff/Appellant against the judgment of the Court of Appeal, Benin Division, delivered on 12th July, 2000 setting aside, the Ruling of Abutu, J of the Federal High Court and ordered the transfer of the substantive suit, to the Delta State High Court for hearing and determination. The Appellant, claimed in the Writ of Summons taken out on 10th October, 1996, as follows: “The Defendant which carries on Banking business nationwide has offices in Benin within the jurisdiction of this Honourable Court. Sometime in 1990, the defendant while carrying on its Banking business forwarded to the Plaintiff an irrevocable documentary letter of Credit No. K16167/65626 established in Belgium and by a letter dated 12/10/9,0 the Defendant advised and confirmed the authenticity of the letter of Credit. Pursuant to the Defendant’s advice and confirmation, the Plaintiff adopted the letter of Credit and exported Iroko furniture Components worth M28527 to one C.J.E. DUB105 STOCKMANNS in Belgium. Inspite of repeated demand, (sic) Plaintiff has received no payment for its goods. Wherefore te Plaintiff claim against the Defendant the sum of N120,000.000.00 (One Hundred and Twenty Million Naira) as special and general damages for breach of contract and or negligent misstatement”. [the underlining mine] PAGE| I note that the Appellant, in reproducing the above claim in the Brief of Argument, “deliberately” or “inadvertently?” omitted the concluding words – i.e. “for breach of contract and or negligent misstatement”. In the Respondent’s Brief, the whole claim was correctly reproduced except the word “demand” which both parties typed as “demands”. The Appellant later filed a Statement of Claim on 18th February, 1997. The Respondent upon being served with the same, filed a motion on Notice on 24th March, 1997, praying for, “An order dismissing and or striking out the suit on the grounds (sic) that the Court lacks jurisdiction to entertain the suit”. The learned trial Judge, after hearing arguments from both learned counsel for the parties, in a considered Ruling delivered on 7th July, 1997, dismissed the said motion, and held that the suit, was/is one within the Admiralty jurisdiction of the court. Said he: in his conclusion, “In the result, I hold that the suit is one within the admiralty jurisdiction of this Court. The Court therefore has jurisdiction to entertain the suit. The objection is overruled and the motion is hereby dismissed”. Dissatisfied, the Respondent, successfully appealed to the Court of Appeal (hereinafter called “the court below”) which on 12th July, 2000, unanimously allowed the appeal. The Appellant being aggrieved by the said decision, has now appealed to this Court on two (2) grounds of appeal. Without their particulars, they read as follows:

“The learned Justices having rightly referred to the claim and Statement of Claim erred in Law in holding:

“Taking into consideration the two definition above, it cannot be disputed that the dispute that gave rise to this action falls within the confine of the relationship between a bank and customer in which case, the jurisdiction of the Federal High Court has been ousted by the proviso to paragraph (d) of Section 230 (1) of the 1979 Constitution as amended by Decree 107 of 1993”. 2. The learned Justices erred in law when they held: “With the greatest respect to the learned trial Judge, I disagree with him, that Section 1 (1)(h) of the Admiralty Jurisdiction of Decree No. 59 of 199,1 has conferred jurisdiction on the trial court when the said Section ceases to have effect by virtue of the modification of the Constitution by Decree No. 107 of 1993. See BIZZE BEE HOTELS LIMITED V. ALLIED BANK (NIGERIA) LIMITED 1996 2 NWLR (Pt.465)376……”. The Appellant has formulated one (1) issue for determination, namely, “Whether the learned Justices were right in holding that the Federal High Court lacked the jurisdiction to entertain the claim of the Plaintiff?” The Respondent, has adopted the above issue. In my respectful view, what appears clear and plain to me, is that while the trial court, held that the suit was one within the Admiralty jurisdiction of that court, the court below, held that the action falls within the confine of the relationship between a bank and customer in which case, the jurisdiction of the Federal High Court, has/had been ousted by the proviso to paragraph (d) of Section 230(1) of the 1979 Constitution as amended by Decree107 of 1993. The court below – per Ba’aba, JCA, at page 75 of the Records, stated inter alia, as follows: “With the greatest respects to the learned trial Judge, I disagree with him, that Section 1(1) (h) of the Admiralty Jurisdiction Decree No. 59 of 1991 has conferred jurisdiction on the trial court when the said section ceases to have effect by virtue of the modification’of the Constitution by Decree 107 of 1993. See Bizze Bee Hotels Ltd, V. Allied Bank (Nig.) Ltd (1996) 8 NWLR (Pt. 465) 170, 181”. In his concurring Judgment, Akintan, JCA, (as he then was), at page 77 of the Records, had this to say, inter alia: “………I also agree that the Plaintiff’s claim in the instant case could not be said to be one covered by the Admiralty Jurisdiction of the Federal High Court. In fact, I believe that the claim has nothing to do with admiralty matters. …….”. The Respondent, has in its Brief, also submitted that the claim of the Appellant, has nothing to do with Admiralty matters. I too, say so. This is because firstly, as rightly stated in the Respondent’s Brief, in the Appellant’s Statement of Claim at page 8 of the Records, (not in paragraph 13 as stated in the Respondent’s Brief as there is no paragraph 13 therein), the claims of the Appellant are as follows: “(a) Special damages of DM28, 527.70 being value of the Iroko Furniture component exported to Belgium under the L C No. K16167/65626 or the Naira equivalent of N1,478,279.80. (b) Loss of earnings on investment of DM 28527.70 at the rate of 15% per annum at the Commercial Bank Savings rate of interest of 15% per annum for the period 1st January, 1991 to the day of judgment, and or (c) N60.000.000.00 as general damages for negligence”. As can be seen as rightly submitted in the Respondent’s Brief, the above claims, have nothing to do with Admiralty and are not in any way, making any attempt to enforce or enforcing the said letter of credit. PAGE| 4 Secondly, as reproduced and noted by me hereinabove, the sum of N60,000.000.00 (sixty million naira) claimed in the Writ of Summons, were for “special and general damages for breach of contract and or negligent misstatement”. Yes, now that it is settled that a Statement of Claim supercedes the Writ. See Chief Lahan & ors. V. Lajoyetan & ors. (1972) NSCC 460 @ 461; (1972) 6 S.C. 106; Nta V. Anigbo (1972) 5 S.C. 156; Enigbokan V. American International Insurance Co. Ltd. (1994) 4 NWLR (Pt. 348) 1 @ 19; (1994) 6 SCNJ. 168 and recently, Alhaji Arowolo V. Akapo & 2 ors. (2003) 8 NWLR (Pt. 823) 451 @ 469 – 470 C.A. citing several cases therein, just to mention but a few, the court, will then confine itself, to the said claim in the Statement of Claim. Significantly and remarkably, in the Appellant’s Brief, paragraphs 4, 5, 6, 7 and 8 of the Statement of Claim, have been reproduced therein. In the Respondent’s Brief, paragraphs 4 and 5 of the said Statement of Claim, have also been reproduced therein. The paragraphs read as follows: “4. Sometime in 1990. the plaintiff received through its Bankers, the New Nigeria Bank Plc, a telex of an IRREVOCABLE DOCUMENTARY LETTER OF CREDIT NO. 16167/65626 from the Defendant which said letter of credit has as its applicant, C.I.E. DUBOIS STOCK-MANNS of Belgium as the foreign Bank which purportedly issued same. The Plaintiff shall found on a copy of the telex letter of credit for its full terms and effect. 5. By a letter Reference IDC0090/90 dated 12/10/90 addressed to the Plaintiff’s said Bankers, and a copy to the Plaintiff, the defendant advised on and confirmed the authenticity of telex establishing the letter of credit and requested for the sum of N25.00 advising commission. The Plaintiff upon receipt of a copy of the Defendant’s letter paid the commission of N25.00 to the Defendant with a N.N.B. Limited draft No. 602092 of 19/11/90 and acted on the Defendant’s advice and confirmation by exporting Iroko furniture components to C.I.E. DUBOIS STOCKMANNS in Belgium between the 30th November, 1990 and 30th December, 1990 (both days inclusive). The Plaintiff shall found on N.N.B letter of 14/11/90, Plaintiff’s letter of 21/11/90 addressed to the N.N.B Limited, Warri, Plaintiff’s invoices No. 007, 008 and 009 for the export in the value of DM28,527.70 delivered to the Defendant. 6. By the terms of the letter of credit, the Plaintiff’s drafts for the value of the goods were to be paid on presentation of the relevant shipping documents to the Defendant which the Plaintiff duly submitted to the Defendant and uptill now, the Plaintiff has received no draft or payment for the value of the goods exported under the said letter of credit. 7. At the time the defendant forwarded to the Plaintiff the said letter of credit and the letter of confirmation dated 12/10/90, the Defendant intended and it well knew or ought to have known that the Plaintiff would rely on them and would be induced thereby to export its goods upon the terms contained therein. In the premises, the Defendant was under a duty to take care in the making of the said representation to the Plaintiff so as to cause Plaintiff any financial loss or damage. 8. Acting on the faith of the Defendant’s representations and induced thereby, the Plaintiff exported Iroko furniture components in the value of DM 28,527.70 to C.I.E. DUBOLS STOCKMANNS in Belgium and for which no payment has been received”. I agree with the submission of the learned counsel for the Appellant, in paragraph 1 – 11 of the Appellant’s Brief that, “The Claim as endorsed on the Writ of Summons and further elaborated in the Statement of Claim remain the basis for determination whether the court has jurisdiction to entertain the suit. See Adeyemi & ors. V. Opeyori 1976 1 N.M.L.R. 149 @ 158” Comment: The above however, does not detract from the settled law, that a Statement of Claim supercedes the Writ of Summons. Note: The case is also reported in (1976) 9-10 S.C. 31 @ 51. See also the cases of Oba Aromolaran & anor. V. Oladele & 2 ors. (1990) 7 NWLR (Pt.162) 359 @ 375 C.A. citing the cases of The Administrator – General & Public Trustees V. Asika llobi (1972) ESCLR 587 @ 593: and Onitolo V. Bello (1958) 3 FSC 53; (1958) SCNLR 49. See also the case of Obiteh V. Obiki (1992) 5 NWLR (Pt. 243) 599 @ 641 and many others. Thirdly, the averment in paragraph 4 of the Statement of Claim, shows that the Bankers of the Appellants, as far as the IRREVOCABLE DOCUMENTARY LETTER OF CREDIT NO. 16167/65626 is concerned, is/are NEW NIGERIA BANK which forwarded the said letter of Credit, to the Appellant. Fourthly, from the averment in paragraph 5 of the Statement of Claim, there was no transaction in respect of the issuance of letter of Credit between the Appellant and the Respondent. The transaction between the Appellant and the Respondent, I hold, was not even that of a Banker and Customer as was erroneously, with respect, held by the court below. What the Appellant has stated from the averments, in my respectful view, was the confirmation of the authenticity of the Telex establishing the letter of credit and not the letter of credit itself. Period! The payment of N25.00 (twenty-five naira), was for the said confirmation or in other words, the consideration paid by the Appellant for the said confirmation. I repeat, there was no other transaction of issuance of a letter of credit, between the Appellant and the Respondent. Fifthly and lastly, the said confirmation for the consideration or payment of N25.00 (twenty-five naira), amount in my humble but firm view, to a simple contract. I hold that the issue and argument on Admiralty, is completely and absolutely misconceived. As a matter of fact, the issue, does not arise. It is a non-issue in all the circumstances having regard to the claims of the Appellant hereinabove reproduced by me. Let me therefore, stress here and reproduce the principle enunciated by this Court – per Obaseki, JSC, which is now firmly settled, in the case of Alhaji Tukur V. The Government of Gongola State (1989) 4 NWLR (Pt. 117)517 @ 549, (1989) 9 SCNJ.1. It is as follows: “It is a fundamental principle that jurisdiction is determined by the Plaintiff’s claim (Izenkwo (sic) V. Nnadozie) 14 W.A.C.A. 361 at 363 – per Coussey, J.A.; Adeyemi V. Opayemi (sic) (1976) 9 – 10 S.C. 31 at 51). In other words, it is the claim before the Court that has to be looked at or examined to ascertain whether it comes within the jurisdiction conferred on the Court. (See Western Steel Works V. Iron & Steel Workers (1987) 1 NWLR (Pt. 49) 284). Judges have no duty and indeed no power to expand the jurisdiction conferred on them but they have a duty and indeed jurisdiction to expound the jurisdiction conferred on them. See the African Newspapers of Nigeria & ors. V. The Federal Republic of Nigeria (1985) 1 All NLR 50 at 175; (1985) 2 NWLR (Pt. 6)137 at 165”. [the underlining mine] PAGE| 6 Assuming that the relationship between the Appellant and the Respondent, is that of Customer and Banker (which is not conceded by me), the case of NDIC V. Okem Enterprises Ltd. & anor. (2004) 10 NWLR (Pt. 880) 107; (2004) 4 S.C. (Pt. II) 77, (2004) 4 SCM 109 cited and relied on by the learned Counsel for the Appellant as an Additional Authority in respect of his submissions in paragraph 2. 02 of the Appellant’s Brief, has made it abundantly clear, that the Federal High Court, does not have exclusive jurisdiction in banking and customer banker relationships. At least, the learned counsel, concedes this fact or the said decision of this Court. Let me quickly state that the case of Federal Mortgage Bank of Nigeria V. NDIC (Nigeria Deposit Insurance Corporation) (1999) 2 NWLR (Pt. 591) 333 @ 362 – 363: (1999) 2 SCNJ. 57, – per Ogundare, JSC, (of blessed memory), dealt substantially, with the issue of the status of Banker/Banker relationship. In other words, the status of a or one Bank, when dealing with another Bank as a customer – like a Bank interested in earning interest from another Bank through say, where that Bank, made a deposit in/with the other Bank. In that case or circumstance, where a dispute arises from such transaction, then, the relationship of individual customer and banker is established. Then of course, such dispute or any dispute arising from that transaction, is triable in the State High Court as well as in the Federal High Court. Said the learned Jurist: “………..with respect to the learned counsel for the respondent, I do not share the view that the proviso in Section 230 (1) (d) would not apply where in a customer/banker relationship, the customer is a bank. To say that where there is a dispute between two banks, the forum for resolution of the dispute is the Federal High Court is to read into S. 230 (l) (d) what is not there………. In the absence of any evidence to the contrary about the custom in the industry, I must hold that it is a simple customer/banker relationship which the proviso in Section 230 (1) (d) exempts from the exclusive jurisdiction of the Federal High Court”. As can be seen from the above discuss, reliance on these cases by the learned counsel for the Appellant, is hopelessly, with respect, and grossly misconceived. By no stretch of imagination, are they relevant or applicable to the simple contract transaction between the Appellant and the Respondent. The intendment of the proviso to Section 230(1)(d) of the Constitution 1979, was certainly and surely, to give concurrent jurisdiction to both the Federal High Court and State High Court. If the Decree meant that it would include matters between an individual customer and his bank, it should have said so. The customer and Banker relationship, is certainly contractual. In the case of Bizze Bee Hotels Ltd, V. Allied Bank (Nig.) Ltd. (1996) 8 NWLR (Pt. 465) 176 @ 185 C.A, the jurisdiction of the Federal High Court, was held to have been ousted. In Afribank (Nig.) PLC V. K.C.G. (Nig.) Ltd. (2001) FWLR (Pt.67) 1042 C.A., His Lordship, Ba’aba, JCA, Benin Division, departed from the decision in the instant appeal. With the greatest respect, the learned Justice, was in effect, reviewing the decision in Bizze Bee Hotels Ltd. V. Allied Bank (Nig.). Ltd, (supra). In this wise, let me refer to the case Of Archibong Jatau V. Alhaji Ahmed (2003) FWLR (Pt. 151) 1887 @ 1896: (2003) 3SCM) 185 (it is also reported in, (2003) 1 SCNJ. 382). also cited and relied on by the Respondent in its Brief, where this Court, – per Kalgo, JSC, frowned at the attitude of the Court of Appeal, setting aside or reviewing its own decision in another Division. It was/is stated that, that court, can do so, only, where the decision is a Nullity. The Court of Appeal as I know it, is proudly known as “the Court”. Coming back to the issue in this appeal, it is now firmly established, that in a simple contract (as in the instant case between the parties), it is the High Court and not the Federal High Court, that has jurisdiction to entertain and determine it. See the case of Omosowan & 2 ors. V. Chiedozie (1998) 9 NWLR (Pt. 566) 477 @ 484 C.A. I therefore, hold that the court below, was right, when it held that, the Federal High Court lacked jurisdiction to entertain the Appellant’s suit and consequently, transferred it to the Delta State High Court for hearing and determination. I however, hold that its reason for so holding, was erroneous, but yet, it came to a correct decision. It is now firmly settled that an Appellate Court, looks and bases its decision, at the correctness of the decision and not necessarily, at the reason for the decision. In other words, an Appellate Court, will not set aside the decision of a lower court which is right and just, merely because the trial Judge or the court below, gave wrong reasons for the decision. The paramount consideration for the Appellate Court, is whether the decision is right and not necessarily whether the reasons are right. See Sowemimo V. Alhaji Somisi & ors. (1982) 1 ANLR (Pt.1) 49: United Bank for Africa Ltd. & anor. V. Mrs. Ngozi Achoru (1990) 6 NWLR (Pt. 156) 254: (1990) 10 SCNJ. 17 @ 26; Ayeni & ors. V. Sowemimo (1992) 5 S.C. 60 @ 74: and recently, Alhaji Ndayako V. Alhaji Dantoro & 6 ors. (2004) 5 SCNJ. 152 @ 172.177, (2004) 5 SCM 68 In the end result or analysis, this appeal, is most frivolous. It fails and it is accordingly dismissed. I hereby affirm (on a different ground), the decision of the court below. Costs follow the event. The Respondent is entitled to costs of N10,000.00 (ten thousand naira) payable to it, by the Appellant.

SC 342/2001