Ndaba Nigeria Limited & Anor V. Union Bank of Nigeria Plc & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

IGNATIUS IGWE AGUBE, J.C.A.

By a Writ of Summons dated 20th April, 2004 the Plaintiffs now (Appellants) claimed against Defendants/Respondents jointly and severally as follows:-

“(i) The sum of N57,320,000.00 (Fifty Seven Million, Three Hundred and Twenty Naira) only being the cost of all the machines carried away by the Defendants plus;

“(ii) Cost of repair to the door and wall damaged by the Defendants estimated to cost N65,000.00;

“(iii) The sum of N5 Million Naira as damages for loss of production, suffering and inconveniences since 23rd January, 2004;

“(iv) The total claim from the Defendants jointly and severally is N62,385,000.00 being the cost of various items removed illegally from the factory site at Km 8 Yakuba Village, Ilorin – Jebba Road on 23rd January, 2004 by the Defendants, cost of repair to the door and walls damaged and general damages as a result of the action of the Defendants.”

The Plaintiffs/Appellants had in the same Court earlier initiated Suit No.FCH/IL/CS/16/2003 by way of Originating Summons against the 1st Defendant and four others wherein they sought for the interpretation and determination of whether letters dated 26/1/01 and 29/7/01 from the 1st Defendant asking for en bloc payment of sum of N15,012,776.35 (Fifteen Million and Twelve Thousand, Seven Hundred and Seventy-Six Naira and Thirty-Five Kobo), being a loan advanced to the Plaintiffs/Appellants by the 1st Defendant, was not ultra vires the Bank.

The Plaintiffs also sought for the following declaratory and injunctive orders inter alia:

i. That the said letters seeking the payment of the said loan was ultra vires the bank;

ii. An order compelling the Defendants to grant the Plaintiffs the working capital of N6million with immediate effect to enable the agreement executed by both parties.

iii. An order of perpetual injunction restraining the Defendants whether by themselves their agents, privies and or servants from further acting or implementing the content of the said letter in any manner whatsoever and howsoever.

Despite the above pending suit, the 15th Defendant/Respondent allegedly caused the 2nd-6th Defendants/Respondents to remove the entire Plaintiffs’ machines as enumerated in the statement of claim, hence the filing of the suit which is the subject of this appeal. Pleadings were duly exchanged between the Plaintiffs/Appellants and the 1st and 3rd Defendants between the 14th of April, 2004 and 9th of November, 2004. On 2nd June, 2006, the 2nd Defendants filed an application dated the same day for extension of time within which to file a joint Statement of Defence on behalf of the 1st – 4th Respondents which application was not moved until the suit was struck out.

However, on the 15th day of June, 2006, the 1st and 3rd Defendants filed a Notice of Preliminary Objection dated the same day challenging the jurisdiction of the trial court (the Federal High Court) to entertain the Plaintiffs’ case.

On the 14th day of June, 2006, following submission of the Learned Counsel for the 1st and 3rd Defendants/Respondents that the Plaintiffs’ suit disclosed no cause of action against the 1st and 3rd Defendants and his (Learned Counsel’s) argument that the 1st Defendant could carry out foreclosure against the Plaintiffs without resort to court action; and secondly, that his application for striking out was on the ground that the Plaintiffs’ suit was an action in conversion over which only the State High Court had jurisdiction to entertain; the court below granted the prayers and declined jurisdiction.

Piqued by the Ruling of the trial Court, the Plaintiffs/Appellants filed their Notice of Appeal with a sole ground, dated the 31st day of July, 2006 on the same date. By leave of this Honourable Court, the Appellant filed three Additional Grounds of Appeal. I shall reproduce all the Grounds of Appeal (Original and Additional) for a proper appreciation of the issues that call for determination:-

“1. ORIGINAL GROUND:-

The Learned Trial Judge misdirected himself when he did not properly consider Section 251 of the 1999 Constitution which gives the Federal and State High Courts concurrent jurisdiction in the matter.

PARTICULARS OF MISDIRECTION

i. The Learned trial Judge did not properly consider the fact that the matter emanated from a banker customer relationship.

ii. That the Commissioner of Police that is a Federal Agent is involved in the matter.

ADDITIONAL GROUNDS OF APPEAL

“1 The Learned trial Judge erred in law when he held as follows: “I have listened to the submission of Counsel, I am of the considered view that however and whatever way you view the case, either from the angle of executing a Deed of Chattel Mortgage or from the angle of tort of conversion, the Plaintiffs will not be successful.”

PARTICULARS OF ERROR

1. There was an application dated 30th June, 2006 for the amendment of the Plaintiffs’ Writ of Summons and Statement of claim which had not been moved before the Plaintiffs’ case was struck out.
2. The Plaintiffs’ statement of claim dated 14th April, 2004 and proposed Amended Statement of Claim dated 30′” June, 2006 disclosed a good cause of action.
3. The Learned trial Judge did not consider the proposed Amended Statement of Claim before striking out the Plaintiffs’ claim.

“ADDITIONAL GROUND TWO

The Learned trial Judge erred in law in holding that the Plaintiffs’ case was an action in conversion which he cannot try.

PARTICULARS OF ERROR

1. The Plaintiffs’ case is a dispute between two customers and their bank over which the Federal and State High Courts have concurrent jurisdiction.
2. S. 251 (1) (d) of the 1999 Constitution of the Federal Republic of Nigeria gives the Federal and State High Courts concurrent jurisdiction to try the Plaintiffs’ case.
3. Some of the Defendants are agents of the Federal Government and can only be sued in the Federal High Court;

“ADDITIONAL GROUND THREE

The Learned trial Judge did not give the Plaintiffs fair hearing before striking out their case.

PARTICULARS OF ERROR

1. The case was adjourn to 14/7/06 for report of settlement.
2. The Plaintiffs were not given the opportunity to move their motion for amendment of Writ of Summons and Statement of Claim before their case was struck out.
3. Plaintiffs’ Counsel informed the Court that settlement out of Court was still in progress.
4. The case should have been for mention only and not for hearing.
5. Plaintiffs’ Counsel asked for adjournment which the Court refused. ”

When the appeal came before us, Briefs were exchanged and in the Brief filed by the Learned Counsel for the Appellants and settled by Bankole Abiodun Esq of Tunji Arosanyin & Co., Destiny Chambers, three issues were formulated for determination which are herein under reproduced as follows:-

“1. “Whether the trial Judge was right in declining jurisdiction to entertain the Plaintiffs’ case in view of the provisions of Section 251 (1) (d) (r) and (s) of the Constitution of the Federal Republic of Nigeria 1999;

“2. Whether there was a cause of action in the Plaintiffs’ case;

“3. Whether the Plaintiffs were given fair hearing before their case was struck out.”

In the 1st and 3rd Respondents, Brief settled by Shittu A. Bello Esq, a sole issue was formulated which is:-

“Whether considering the statement of claim, it could be said that the case of the tort of conversion before the Court falls within Section 251 (1) (d) of the 1999 Constitution so as to give the Federal High Court concurrent jurisdiction with the State High Court to determine the case”

On the part of the 2nd Respondent two issues were distilled out of the Grounds of Appeal and they are as follows:-

“(1) Whether having regards to the case presented by the Appellants at the lower Court there is a cause of action upon which the lower Court could exercise jurisdiction to entertain the Appellants’ case which was struck out?

“(2) Whether indeed or as complained, the Appellants were not given fair hearing before the Appellants’ case was truck out.”

The 4th, 5th and 6th Respondents also formulated two issues, thus:

1. Whether the trial court, having regards to the case presented by the appellant was right to have struck out the case for lack of jurisdiction.
2. Whether the Appellant and or the parties were accorded a fair hearing before the trial court.

On a careful perusal of the issues formulated in the Briefs of the respective parties, I am of the candid view that the issues formulated by the Appellants in their Brief of Argument are appropriate for the determination of the Appeal as the other issues of the respective Respondents can be subsumed within the Appellants’ aforesaid issues. Accordingly, I shall adopt the Appellants Issues in the determination of the Appeal.

On the Issue Number One which is whether the trial Judge was right in declining jurisdiction to entertain the Plaintiffs’ suit, Learned Counsel for the Appellants submitted that the learned trial Judge was wrong to have declined jurisdiction to entertain the Plaintiffs claim in view of section 251 (1) (d), of the Constitution of the Federal Republic of Nigeria 1999 which has given both the Federal and States High Courts power to adjudicate on the subject matter. He cited the case of NDIC vs. Okem Enterprises Ltd & Anor. (2004) F.W.L.R. (Pt.210) 1176 at 1233 paras. D – G, and pointed out that the Law is settled that the jurisdiction of the Court is determined from Plaintiff’s claim as endorsed in the Writ of Summons and statement of claim. Felix Onuorah v. Kaduna Refining & Petrochemical Co. Ltd. (2005) All F.W.L.R. (Pt. 256) 1356 at 1364 paras. B – C, Alhaji Umaru Abba Tukur vs. Governor of Gongola State (1989) 4 N.W.L.R. (Pt. 117) 517 at 549 para. B, were cited in support of the submission.

The Learned Counsel maintained that a thorough examination of the Plaintiffs’ case vis-a-vis the provisions of Section 251 (1) (d) of the 1999 Constitution would reveal a banker customer relationship in that the Plaintiffs were making four claims against the Defendants jointly and severally for removing their machines, for the repair of the door and wall damaged while removing the machines and for loss of production, suffering and inconveniences suffered as a result of the removal.

He contended that if there were no relationship between the plaintiffs and the 1st Defendant, the Plaintiffs would not have sued the 1st Defendant and others jointly and that contrary the contention of the Learned Counsel for the Defendants and the Ruling of the learned trial Judge, the case is not an ordinary tort between two individuals over which the State High Court could exercise exclusive jurisdiction.

He cited section 251 (1) (d) of the Constitution and the dictum of Uwaifo J.S.C. at page 1235 of NDIC vs. Okem Enterprises Ltd. & Anor. (2004) FWLR (Pt. 210) 1176; on the interpretation of the proviso to the said section and submitted on the authorities of Tukur vs. Government of Gongola State (Supra) at 546 and Seven-up Bottling Co. vs. Abiola & Sons (2001) 6 S.C.N.J 18 at 53, that the mere fact that a Plaintiff’s case is described as tort does not whittle down the powers of the Federal High Court by Section 251 (1) (d) of the Constitution. He urged us to discountenance 7-Up Bottling Co. Ltd vs. Abiola & Sons because it did not hold that the High Court of a State is vested with exclusive jurisdiction to hear matters arising out of banking transaction between banker and customer. Citing again the case of National Electric Power Authority vs. Mr. Edegbero & 15 Ors. (2003) FWLR. (Pt. 139) 1556 at 1569; Olutola vs. Unilorin (2005) All FWLR (Pt.245) 1151 at 1174 paragraph B; and Attorney General of Anambra State vs. Chief Chris UBA & 3 Ors. (2005) All FWLR (Pt. 277), 909 at 921; he further contended that the learned trial Judge failed to consider the fact that the Plaintiffs’ case involved agents of the Federal Government before striking it out in the light of the status of the 4th, 5th and 6th Defendants and Section 251 (1) (r) and (s) of the 1999 Constitution which are to the effect that any case involving those Defendants can only be heard in the Federal High Court. He then urged the Court to resolve the issue in the Appellants’ favour.

Arguing Issue Number Two as to whether there was a cause of action in the Plaintiffs’ case, the Learned Counsel for the Appellants submitted that before striking out the case of the Plaintiffs, the learned trial Judge ought to have considered the Statement of Claim dated 14th April, 2004 and the Proposed Amended Statement of Claim dated 30th June, 2006, which he failed to do.

He maintained on the authorities of Chief Osita Ilozor v. Usman Ahmadu & Anor. (2003) FWLR (Pt.163) at 139 and E.I.B, Building Society v. Adebayo (2004) FWLR (Pt. 193) 223 at 245; where cause of action is defined, that it is trite that in the determination of cause of action, the court only considers the case of the Plaintiff.

On the reliance placed on the cases of Seven Up Bottling Co. v. Abiola & Sons (supra) and Union Bank v. Ozigi (1994) NWLR (Pt.333) 385 at 404 by the court in holding that there was no cause of action, the learned counsel for the Appellants contended that if the trial Judge had properly considered the Statement of Claim and the Proposed Amended Statement of Claim, he would have come to a different conclusion. Citing again, the case of Ailo (Nig) Ltd v. Ankpa Coop, Credit & Market Union Ltd (2004) All FWLR. (pt.210) 1336 at 1350 paragraph D, it was submitted further that the learned trial Judge was wrong in allowing the Defendants to argue their preliminary objection upon which the case was struck out when an application for amendment of the Plaintiffs’ Writ of Summons was still pending in court.

Finally, the Learned Counsel for the Appellants drew the attention of this court to the Statement of Claim and Proposed Amended Statement of Claim wherein the Plaintiffs averred that they brought an action in Suit No. FHC/IL/CS/16/2003 for the interpretation of the loan agreements of 17th and 24th June, 1998 and that while the suit was pending, the Defendants/Respondents proceeded to remove the 1st Plaintiffs’ machines in spite of the reminder by the 2nd Plaintiff of the 2nd Defendant on the pending suit which removal of the machines and the destruction of the Plaintiffs’ Factory door and walls gave rise to the suit now on appeal and which the learned trial Judge struck out.

Again, the Learned Counsel referred to paragraphs 21, 22, 23, 24 and 25 of the Proposed Amended Statement of Claim which according to him would have sustained the action if the motion for amendment dated 30th June, 2006 was considered and granted, and submitted and urged on this court to hold that failure to consider the Statement of Claim and its Proposed Amendment was prejudicial to the Plaintiffs/Appellants’ case since the Plaintiffs’ case disclosed a cause of action.

On Issue Number Three which is whether the Plaintiffs were given fair hearing before their case was struck out, it was submitted that the Appellants were not given fair hearing before their case was struck out on the 14th of July, 2006 because on the 14th July, 2006, the Plaintiffs filed a motion dated 30th June, 2006 to amend their Writ of Summons and Statement of Claim and the Application was fixed for 7th July, 2006 for hearing. On that day when the case came up for hearing, the Plaintiffs counsel could not move the motion as the Learned Presiding Judge gave the parties one week to settle out of Court, failing which the case would be heard. The case was then adjourned to 14/7/08 for Report of Settlement.

He related how on the 14/7/06 when the case came up, the Learned Counsel for the 1st & 3rd Respondents raised a preliminary objection to the effect that the Plaintiffs had no cause of action and that the Federal High Court lacked jurisdiction to entertain the suit and also what transpired during the proceedings culminating in the Ruling of the Court which led to this appeal.

He then contended that the learned trial Judge was wrong in abandoning the Plaintiffs’ application for amendment of pleadings and the failure to consider the application occasioned a miscarriage of justice. The case of Mobile Producing Nig. Unlimited v. Monokpo & Anor. (2004) All F.W.L.R. (Pt. 95) was cited to submit that the failure to hear the motion occasioned a miscarriage of justice and breach of the Appellants’ right to fair hearing.

It was further submitted on the authorities of Nalsa & Team Associate vs. NNPC (1991) NWLR (Pt. 212) at 662, Olayiwolavs. Opaleke (2004) All F.W.L.R. (Pt. 219) 1002 at 1016 UBA vs. Ujor (2002) FWLR (Pt. 88) at 1014 at 1037 para. D and Yekuni Ajisefini vs. D.P.P. (2002) FWLR (Pt. 122) at 88 that if the Court below refused the application for adjournment, the Appellants would have been allowed the opportunity of moving their motion for amendment in the face of two competing applications one seeking to sustain the suit and the other striving to terminate same and that the failure to grant the adjournment amounted to denial of fair hearing to the Appellants.

Again, it was argued relying on Section 36 (1) of the Constitution that the Court should have granted one more adjournment to enable the Appellants call their witnesses. On the attributes of fair hearing he relied on the case of Chief S.C Awuse v. Peter Odili (2005) All FWLR (Pt. 253) 720 at 728 to submit that the first, second and fourth attributes of fair hearing were missing in the case and noted submitting further on the authority of Dele Alake v. Dr. Abalaka (2002) F.W.L.R. (Pt. 88) 931 at 944 para. H, that the failure to give the Appellants fair hearing would lead to the whole proceeding being set aside. He urged us to resolve the issue in favour of the Appellants.

Reacting to the submissions of the Appellants, the Learned Counsel for the Island 3rd Respondents on the sole issue of jurisdiction submitted in sum that the statement of claim at the trial Court disclosed only a claim in tort of conversion which was defined by the Supreme Court in 7-Up Bottling Co. Ltd v. Abiola & Sons Bottling Co. Ltd. (2001) 29 W.R.N 99 at 134 at paras. 30 – 35 and that paragraphs 19 and 21 of the statement of claim and paragraphs 2.00, 2.01 and 4.04 of the Appellants’ Brief confirm the above decision of the Supreme Court.

He conceded to the contention of the Appellants that the jurisdiction of the Court is decided by the Plaintiffs/Appellants claim but contended that the contention by the Appellants’ Counsel that the claim in tort arose from banking relationship is erroneous.

In response to the submission on Section 251 (1) (d) (r) and (s) of 1999 Constitution. Learned Counsel cited L.A. Kayode v. FCDA (2005) 27 WRN Page 97 at 132 – 133 and 142 -143 and NEPA v. Edegbero (Per Adekeye J.CA.) at 143 to submit that the High Court of a State has jurisdiction in the case of conversion notwithstanding the fact that 4th, 5th and 6th Respondents are Agents of the Federal Government as the Statement of Claim did not show that the claim is connected with banking or any of the related matters mentioned in Section 251 (1) (d) of the 1999 Constitution.

On Issue Number Two of the Appellants the Learned Counsel for the 1st and 3rd Respondents also asserted that the Federal High Court did not base its decision on the fact that the Appellants statement of claim did not disclose any cause of action but on the ground that it had no jurisdiction. On the submission that if their application were heard it could have disclosed a cause of action, he submitted that the suit upon which the application was based was Suit No. FHC/IL/CS/16/2003 which is different from the present suit and the Court could not have based its decision on a case not before it on the authority of Obiora Mokwe v. Ezeuko (SAN) & Anor. (2001) FWLR. (Pt.38) 1286 para. G; more so, as the parties were not the same. 7-up v. Abiola & Sons (Supra) where a similar issue was raised was further cited to pray the court to discountenance the Appellants’ submissions on Issue Number 2.

On the contention that the court did not grant the Appellants adjournment thereby occasioning a miscarriage of justice, it was submitted by the Learned Counsel for the 1st & 3rd Respondents that the trial court had granted the Appellants several adjournments but without the Appellants taking advantage of those adjournments to regularize their position. He pointed to pages 80, 82 and 98 of the Record of Proceedings where the trial Judge deferred the Ruling to 14/7/06 even though the application for striking out was moved on the 7th of July, 2006 and on the authorities of Bill Construction Co. Ltd. v. Imani & Sons Ltd/Shell Trustees Ltd (A Joint Venture) (2007) 7 W.R.N. 152 and News-Watch Communications Ltd. v. Alhaji A. I. Alta (2006) 34 W.R.N. at 45 lines 10 – 35 Per Mohammed J.SC submitted that a party who fails to take advantage of fair hearing opportunity cannot claim that he has been denied fair hearing.

On the contention by the Appellants that their motion should be heard first before the those of the Respondents he cited Intercity Bank Plc. v. Alhaji Bello Sani Ali (2002) 11 W.R.N. 127 at 137 lines 15 – 25 which is to the effect that in the face of two competing applications one which raises the issue of jurisdiction and another seeking to regularize a process, the application challenging jurisdiction would first be heard. Learned Counsel observed that the Appellants did not oppose the application; neither did they file a written reply to the application.

He then concluded that the Appellants have no right of Appeal against the Ruling of the trial Court more so as the 151 & 3rd Respondents application was filed on 15/6/2006 as against the Plaintiffs’ motion dated 30/6/2006 and that since the Appellants’ suit had been struck out there was no suit to which the amended statement of claim could be attached. The Court was then urged to dismiss the suit.

On the part of the 2nd Respondent it would appear that he subsumed his issue of cause of action within the threshold issue of jurisdiction and in the first place cited the case of Rivers State Government of Nigeria & Anor. v. Specialist Konsult (Swedish Group) (2005) All FWLR (875) AT 899, where the supreme court cited Madukolu v. Nkemdilim (1962) All NLR 587 and Sken Consult v. Ukey (1981) 1 S.C. 6 to support the views earlier expressed by the 1st and 3rd Respondents that the Appellants’ case was founded in the tort of conversion as can be gleaned from their Statement of Claim and Writ of Summons. Apemu II v. Adekanye (2004) All FWLR 2113 and Izenkwe v. Nnaedozie (1935) 14 W.A.C.A. 36 and Rinco Consult Co. Ltd v. Veepee Industries Ltd (2005) All FWLR 516 and also Adeyemi v. Opeyori were all relied upon in support of the submission.

He explained making references to the Statement of claim that it is only in paragraph 10 thereof that the Appellants made reference to banking transaction and even then he never admitted taking a loan which he would have done to bring him within the purview of section 251 (1) (d) of the 1999 Constitution. Rincon v. Veepee (Supra) was cited in support of the above submission.

The learned counsel conceded that the Federal High Court has concurrent jurisdiction with state High Court in a dispute between individual customer and his bank under the provision to section 251 (1) (d) of the Constitution but that throughout the pleadings. Appellant never disclosed that the transactions between them and 1st Respondents related to banking. According to Counsel, the Appellants also did not show that the 2nd – 6th Respondents were banks and that he never pleaded that the 2nd Respondent came to remove their property for a loan they got from the 1st Respondent.

The Appellants also did not show any connection between him and NERFUND which was not joined in the suit, learned Counsel posited, citing again the dictum of Ogundare J.S.C. at page 1643 of 7-Up Bottling Co. Ltd. v. Abiola & Sons Co. Ltd. (Supra) at 1611 to reiterate that the case of the Appellants was in conversion.

On the Appellants submission that the Court did not take into consideration that the 4th to 6th Respondents were agents of the Federal Government, learned Counsel for the 2nd Respondents disagreed with such submission on the ground that the provisions of Section 251 (1) (r) relate only to action “affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies” but that the complaint against the 4th, 5th and 6th Respondents has nothing to do with any executive or administrative action of Government. He recalled the decision in NEPA v. Adegbero per Ogundare J.S.C. and Attorney General Anambra State v. Uba which held that jurisdiction of the Federal High Court is not determined by parties but that the action must arise from administrative action or decision of the Federal Government or its agency.

On the submission by the Appellants’ Counsel that the lower Court was wrong in allowing the Respondents to argue their preliminary objection instead of their motion for amendment, Learned Counsel for the 2nd Respondent Supported the views expressed by the Learned Counsel for the 1st and 3rd Respondents in this respect and cited the cases of Madukolu v. Nkemdilim (1962) 1 S.C.N.L.R. 341, Ajakaiye v. Military Governor of Bendel State (1993) 9 S.C.N.J. 242; Ajamole v. Yaduat (2003) FWLR. (Pt.182) 1913 and Ogbanu v. Oti (2000) 8 NWLR. (Pt.670) 582 to urge us to resolve issue Number One in favour of the Respondents.

Turning to Issue Number 2 which relates to fair hearing, he conceded to the submission that Courts are expected to apply the principles of fair hearing in any matter before them but argued that whether or not the Appellants were so denied would depend on the peculiar circumstances of the case. He alluded to the grounds upon which the Appellants complain of fair hearing which is the denial of their prayers for adjournment and the refusal of the Court to hear their motion for amendment. Learned Counsel for the 2nd Respondent like his colleagues posited that all authorities agree that the issue of jurisdiction once raised should take preference. For this proposition, he cited once more 7-Up Bottling Co. Ltd. v. Abiola & Sons Co. Ltd. (Supra) at 1648, Odofin v. Agu (1992) 3 N.W.L.R. (Pt. 229) 350 at 364; Kallu v. Daniel (1975) 12 Sc. 175 and Barclays Bank Nigeria v. CBN (1976) 6 Sc. 176; Olosunde v. Evialegan (2005) All F. W.L.R. (Pt. 242) 503 at 510 where the Court held that the normal duty of a Court to consider and hear a preliminary objection once raised, before proceeding to hear the substantive issue.

Other cases cited include Onyemeh v. Egbuchalam (1996) 5 NWLR (Pt.488) 255 etc to submit that preliminary objection takes precedent over an application for amendment. On the issue of adjournment, he submitted citing Order 37 Rule 10 of the Federal High Court Rules and the cases of University of Ilorin v. Oyelana (2001) FWLR (pt.83) 2193 and ALSTHOM S A. v. Saraki (2005) All FWLR (Pt.246) 1385 at 1399 that adjournments are at the discretion of the Court and not granted as a matter of course but on the balance of the interests of the parties. He recalled what transpired in Court on the date the adjournment was refused submitting that Ajisefini v. D.P.P. cited by the Learned Counsel rather supports their case and same was relied upon to urge this Court to resolve Issue Number 2 in favour of the Respondents.

On the part of the Attorney General of Kwara State, he had argued on Issue Number One in the joint brief of the 4th, 5th and 6th Respondents in the same line with his colleagues for other Respondents on the fundamental importance of jurisdiction in the adjudicatory process and that it is trite that in the determination of whether a court has jurisdiction vel non, the court will examine or consider the nature of the Plaintiffs’ claim as disclosed in his Writ of Summons and Statement of Claim. In the instant case, the Learned SAN continued, the Appellants’ claims are all based on an action in conversion as pleaded and set out in the Appellants’ Writ of Summon and Statement Claim respectively. Placing reliance on Seven Up Bottling Co. Ltd v. Abiola & Sons Co. Ltd (2001) FWLR (pt.70) at 1611, he submitted that the jurisdiction of the Federal High Court does not admit matters based on conversion and as such the lower court was right when it declined jurisdiction to entertain the Appellants’ suit.

It was the Learned Attorney’s further submission that although it is sometimes necessary for the court to hear evidence first for the purpose of determining the issue of jurisdiction, where pleadings are filed in a suit, the issue of jurisdiction ought to be determined on the Plaintiffs’ pleadings – the Statement of Claim and not the Defendants’ Statement of defence. He maintained that the learned trial Judge gave necessary consideration to the pleadings of the Plaintiffs/Appellants before deciding as he did at page 89 of the Record of Proceedings. Further references were made to paragraphs 6 – 12 of the Appellants’ Statement of Claim wherein the Appellants emphasized the forceful removal of their machineries and destruction of the factory’s doors and walls to submit that the court on the authorities of Aremu II v. Adekanye (2004) All FWLR. page 2114 and Rinco Consult Co. Ltd v. Veepee Industry Ltd (2005) All FWLR that the suit of the Appellants in the lower court was in conversion.

As regards Section 251 (1) (d) of the 1999 Constitution, which ought to have vested the court with the requisite jurisdiction to entertain the suit between a customer and his banker, the Learned Senior Counsel asserted that throughout the claimants’ pleadings, nowhere was it averred that there was a banker/customer relationship between the Appellants and 1st Defendant so as to vest the court below with the jurisdiction to hear the case. For this submission, he cited Felix Onuorah v. Kaduna Refining & Petrochemical Co. Ltd (2005) All FWLR. (pt.256) 1356 or (2005) 6 NWLR (pt.921) 393; Mustapha v. Governor Lagos State (1987) 2 N.W.L.R. (pt 58) 539; OHMB v. Garba (2002) 14 NWLR (pt.788) 538 and Kwara State v. Olawale (1993) 1 NWLR (pt. 272) 64 to contend further that the mere presence of the 4th, 5th and 6th Respondents who the Appellants described as Federal Government agents is not a enough to vest the court with jurisdiction since the provisions Section 251 (1) (r) relate only to actions affecting the validity of any executive or administrative action or decisions by the Federal Government or any of its agencies.

Placing reliance again on E. A. Okoyode v. F.C.D.A. (2005) 27 W.R.N 97 at 132 -133, he submitted that from the Record of Proceedings and the pleadings of the Appellants the complaint against 4th, 5th and 6th Respondents has nothing to do with any executive or administrative action or decisions of the Federal Government or its agencies, and therefore it is only the High Court of Justice of Kwara State that is vested with the jurisdiction to entertain this case based on an action in conversion not withstanding that the 4th, 5th and 6th Defendants are Police Officers.

On the argument by the Appellants that the lower court was wrong to have allowed the preliminary objection to be argued first instead of the motion for amendment of the Statement of Claim, it was contended by the Learned SAN that because of the fundamental issue of jurisdiction of the court to hear a case, once it is raised, the court must first hear and determine the issue. The following authorities were cited to buttress this submission: Johnson v. Osaye (2001) 9 N.W.L.R. (pt 719) 729 at 745; A.G. Federation v. Sode (1990) 1 N.W.L.R. (pt.128) 500; W.R.P. Ltd v. Agbuje (2005) 5 N.W.L.R. (pt. 917) 63; Usman v. Baba (2005) 5 NWLR (pt. 917) 113 at 127 per Jega JCA and Aribisala v. Ogunyemi (2005) 6 NWLR (Pt.921) 212 at 227 paras. D – G. per Ogundare J.S.C.; to urge us to resolve the issue of jurisdiction in favour of the Respondents and dismiss the appeal.

On Issue Number 3 which is equivalent to Issue Number 2 of 4th – 6th Respondents issues, the Learned Attorney – General in sum contended that fair hearing is both for the Appellants and Respondents and consequently, where as in this case a party to a suit is responsible for the matter not being heard, he cannot complain that he was not given a fair hearing or a fair trial on the bases that the learned trial Judge had indulged the Appellants several adjournments on the ground that there was intention to settle the matter out of court. Furthermore, the Appellants had the option of moving the motion for amendment but refused to utilize the opportunity and therefore cannot be heard to complain of lack of fair hearing.

Adopting his submissions on issue number one as regard the hearing of the preliminary objection of the Respondents instead of granting another adjournment to the Respondents, he cited a case of Ekpeto v. Wanogho (2004) 18 N. W.L.R. (pt.905) 394 at 401 to 414 to finally submit that the trial court conducted the case in accordance with the relevant laws and rules of court and the principles of the natural justice. Accordingly, he urged this Honourable Court to dismiss the appeal and affirm the decision of the learned trial Judge.

I have carefully considered the submissions of Counsel on the issues formulated for resolution in this appeal and I am of the candid view that the appeal brings into the fore, once more, the ever raging controversy surrounding the jurisdiction of the Federal High Court as donated to it by the Constitution of the Federal Republic of Nigeria, 1999. That the jurisdiction of the Court had long been mired in controversy was mooted as early as 1977 when barely four years after inception, the Constitution Drafting Committee had this to say about it.

“Since its inception that Court has given rise to disputes relating to jurisdiction and we were informed that one of the earliest of such cases was one in which a divided Supreme Court gave a majority decision against the contention of the Attorney – General of the Federation as to the correct interpretation of the Section which confers jurisdiction of the Federal Revenue Court, and Justices of the Supreme Court have to disagree amongst themselves on the issue. The litigant who has to decide which court to go to in the first instance is the one who deserves our attention and sympathy.” See Jammal Steel Structures Ltd V. African Continental Bank Ltd. (1973) 1 All NLR. (Pt.11) 208, wherein a majority decision of the Supreme Court rejected the contention of the Attorney General of the Federation on the jurisdiction of the Federal Revenue Court.

Emmanuel C. Ukala, SAN, in his contribution to the ‘Jurisprudence of Jurisdiction’ Edited by Professor Epiphany Azinge, Oliz Publisher 151 Edition, 2005 at page 130, noted rightly in my view, that the difficulty perceived by the Constitution Drafting committee still prevails today. In his words:

“Provisions vesting exclusive jurisdiction in the Federal High Court to determine civil causes and matters relating to ‘the administration or management and control of the Federal Government or any of its agencies’, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies, any action or proceeding for a declaration or injunction affecting the validity of any executive action or decision by the Federal Government or any of its agencies’ as contained in Section 251 (1) (P) and (q) and (r) are Constitutional mine fields in which the fate of the litigant depends more on chance than on the process of his legal adviser”, See Oyakhire v. Jen (2000) FWLR. (Pt.20) 699 at 7715; NEPA v. Edegbero 15 Ors. (2002) 18 NWL.R (Pt. 798) 79 at 95; in contrast with NNPC v. Okwor (1998) FWLR (Pt.559) 637 at 650.

The above opinion by the learned author is buttressed by the disparate views hitherto expressed by this court and the apex court on the interpretation of the proviso to section 230(1) (d) of the 1979 Constitution now section 251 (1) (d) of the 1999 Constitution which is the crux of this issue. For instance, the tendency of the decisions of the old judicial school of thought was that the jurisdiction of the Federal High was ousted in disputes arising from banker/customer transactions/relationships, irrespective of the fact that the parties were even banks/bankers. See Owena Bank Nig. Plc. v. Punjab National Bank (2000) 5 NWLR (pt. 658) 635; and Trade Bank Plc v. Benilux (Nig.) Ltd (2003) 9 N.W.L.R. (pt. 825) where the Respondents got judgment in the Lagos High Court against the Appellant for wrongfully paying a cheque drawn on the defendants by their creditors (Accountable Finance and Investment, Ltd.), in favour of the plaintiffs to a person(s) other than the plaintiffs. The Appellants appealed to the Supreme Court having lost at the Court of Appeal, and challenged the jurisdiction of the Lagos High Court to entertain the suit arguing that as there was no banker/customer relationship between the parties, the matter did not fall within the proviso to section 230 (1) (d) of the Constitution (Suspension and Modification) Decree No. 107 of 1993 (now 251(1) (d) of the 1999 Constitution), and was therefore within the jurisdiction of the Federal High Court and not the State High Court.

It was held by the Supreme Court that by the proviso to section 230 (1) (d), the subsection will not apply to any dispute between a bank and its customer in a transaction between them. The apex Court emphasized that in order to determine whether the matter was within the jurisdiction of the Federal High Court, the facts of the case must be carefully examined as the intendment of the provisions is not that every cause or matter in which a bank is involved must be determined by the Federal High Court. Their lordships were of the view that the case was grounded on the tort of conversion and that following a long line of decided cases, where bankers who collect cheques pay them to those not entitled to the proceeds, they are guilty of the tort of conversion, Accordingly, it was finally held that the case was within the jurisdiction of the State High Court.

That decision seemed to have established the principle that banker/customer relationship is not a sine qua non in order to oust the jurisdiction of the Federal High Court on a bank related transaction. See also the case of De Lluch v. Societe Bencaire (Nig) Ltd. (2003) 15 NWLR (pt.842) 1, where the Court of Appeal held that where the claim does not relate to any fiscal measures of the Federal Government, the Federal High Court does not have jurisdiction. The position taken by the courts in the above and subsequent cases threw up scholastic and judicial debates which according to C. C Nweze, (now J.C.A) in his contribution captioned “Jurisdiction of the State High Court” to the ‘JURISPRUDENCE OF JURISDICTION’ (supra) at page 101 “has unwittingly afforded occasions for broadening the frontiers of hermeneutic divergences “, in the interpretation of that section of the Constitution.

Emmanuel C. Ukala, Esq, SAN, speaking in the same vein opined at page 148 of the said , that “…in interpreting the provisions of the paragraph, and the effect of the proviso thereon, the predominant judicial approach seemed to have been one coloured by “disjunctive either/or” mind set; that is, if the matter does not fall within the exclusive jurisdiction of the Federal High Court, then it is within the exclusive jurisdiction of the State High Court”.

However, as rightly observed by the learned author, some recent decisions of the Appellate courts have taken a more radical and acceptable position thereby setting a new trend in the resolution of this vexed issue of the interpretation of section 251 (1) (d) of the 1999 Constitution and the proviso thereto as would be seen in the cases herein after to be considered. In NDIC v FMBN (1997) 2 NWLR (pt. 490) 735; Uwaifo, JCA delivering the lead judgment of the Court of Appeal set the pace for this new trend in the interpretation of the provisions of section 230 (1) (d) of the 1979 Constitution (as amended), now section 251 (1) (d), when he took the view that the provisions thereof, cannot be interpreted to have the effect of whittling down the jurisdiction conferred on the Federal High Court beyond the contemplation of what the proviso dictates but that the effect of the proviso are fourfold, which are:-

1. that the State High Court shall have jurisdiction in the circumstances indicated in the proviso;
2. that the Federal High Court shall not have exclusive jurisdiction as donated to it by the main section in relation to disputes within the purview of those mentioned in the proviso;
3. that notwithstanding the inapplicability of the court’s exclusive jurisdiction to matters within the purview of the proviso, the jurisdiction of the Federal High Court to entertain matters within the proviso has not been completely ousted; and
4. that both the Federal and State High Courts share and can exercise concurrent jurisdiction in such circumstances as stipulated in the proviso.

The Supreme Court, per Ogundare, JSC, seemed to have supported the views expressed by Uwaifo, JCA, when the matter went on appeal as FMBN v NDIC (1999) 2 N.W.L.R (Pt.591) 333, when he asserted thus:-

“I do not share the view that the provision 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 the resolution of the dispute is the Federal High Court is to read into section 230 (1) (d) what is not there. A lot depends on the nature of the transaction between the two banks. 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.”

Following the above dictum of Ogundare, JSC, the Court of Appeal in the case of Sam Fam Financiers Ltd v Aina (2004) 2 N.W.L.R (pt.857) 297 held that the fact that the Federal High Court has no exclusive jurisdiction to adjudicate in a case between the customer and his bank does not necessarily divest the court completely of the jurisdiction to entertain such a case. This same position was re-echoed by Ibiyeye, JCA, in Afribank (Nig) Plc v KCG (Nig) Ltd (2001) 8 NWLR (pt.714) 87 at 93 when he stated inter-alia:-

“I do not, with due regard to the learned counsel for the Appellant, share his view that the words “shall not” in the proviso to section 230 (1) (d) (supra) connotes the exclusion of the Federal High Court from entertaining matters set out in paragraph (d) of section 230 (1) (supra). I instead share the view of the learned counsel for the Respondent that all the said proviso has done is to whittle down the exclusive jurisdiction conferred on the Federal High Court in subsection (1) by opening up the seemingly closed shop in its paragraph (d) to any other court of co-ordinate jurisdiction. The negative connotation of the words “shall not” in the proviso does not entirely remove the Federal High Court from entertaining matters arising from banker/customer relationship. The connotation is instead accommodating.

As salutary as these decisions of the Court of Appeal had seemed, they were still the subject of scurrilous criticisms by judicial and scholastic commentators and writers on the ground of not emanating from the dictum of Ogundare, JSC, in the FMBN v. NDIC case which was the fulcrum or font et origo of their decisions. They had cited the dictum of Kalgo, JSC in particular in the case of N.D.I.C v. Okem Enterprises Ltd. (2004) 10 NWLR (pt.880) 107 at 200, where the emeritus Law Lord admitted that the question of concurrent jurisdiction between the Federal and State High Courts under section 230 (1) (d) was not in issue since learned counsel on both sides never adverted the mind of the court to that issue in FMBN v. NDIC and Trade Bank Plc v. Benilux (Nig) Ltd (supra); which he had the opportunity to hear.

Coming home to section 251 (1) (d) and the proviso thereto; it would appear that all the hue and cry as to the controversy surrounding its interpretation, has now been consigned to the limbo of judicial antiquity when a full complement of the Supreme Court Bench in the case of NDIC v. Okem Enterprises Ltd. (2004)10 N.W.L.R. (pt. 880)107 at 173 held that from the various provisions of the law, more recently conferring jurisdiction on the Federal High Court, the court has virtually gone beyond the original intention of making it just a revenue court. Thus, the decisions in Jammal Steel Structures Ltd. v. ACB Ltd. (1973) 1 All N.L.R (pt.2) 208; Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 S.C.N.L 296; and Savannah Bank (Nig) Ltd. v. Pan Atlantic Shipping & Transport Agencies Ltd. (1987) 1 NWLR (pt. 49) 212, have to that extent spent their force because according to their Lordships, by the Constitution (Suspension and Modification) Decree No. 107 of 1993, section 230 of the 1979 Constitution was amended to vest the Federal High Court with the jurisdiction to entertain and determine civil cases and matters emanating from the enumerated items listed therein. Furthermore, the jurisdiction went far beyond the contemplation of the Federal Revenue Act of 1973 as can be gleaned particularly from section 230 (1) (d) which is in pari materia with section 251 (1) (d) of the 1999 Constitution which was relevant to the case in question as well as our present case.

The facts of the case are that NDIC as the liquidator to Allied Bank of Nigeria Plc – a distressed bank- filed an application in the Failed Banks Tribunal, Lagos Zone, for the recovery of the sum of N284,109,459.59 being amount owed the Allied Bank by Okem Enterprises (Nig) Ltd. Following the abrogation of the tribunal, the case was inherited by the Federal High Court, Lagos, after the inception of the present democratic dispensation and on the 16th April, 2000, the Respondent filed a notice of objection to the jurisdiction of the Federal High Court to hear the suit which was sought to be struck out on four grounds namely:-

1. That the proviso to section 251 (1) (d) of the 1999 Constitution was a replication of section 230 (1) (d) of the 1979 Constitution (as amended by Decree 107 of 1993) and did not vest the Federal High Court with the jurisdiction to determine causes and matters relating to transactions between individual customers and their banks.
2. That the reliefs sought in the suit were matters within the exclusive jurisdiction of the State High Court.
3. All claims made or intended to be made by the plaintiff were a nullity since they were all claims and matters which were not within the jurisdiction of the Federal High Court.
4. That accordingly, the Federal High Court was devoid of jurisdiction.

In his ruling delivered on the 18th December, 2000, Abutu, J. concluded that matters arising from transactions between individual customers and their banks were within the concurrent jurisdiction of the Federal and State High Courts. He therefore overruled the objection and the Respondents/objectors appealed to the Court of Appeal which upheld the appeal holding that the Federal High Court had no jurisdiction to entertain such a suit the subject matter which arose from a transaction between a bank and its individual customer. Dissatisfied with the judgment of the Court of Appeal, the Appellant proceeded to the Supreme Court and in resolving the issues at stake, the apex court, per Uwaifo, JSC, who read the lead judgment, reviewed in detail the provisions of sections 230 (1) (d) of the 1979 Constitution; 251 (1) (d) and 272 of the 1999 Constitution; section 7 (1) of the Federal High Court Act, 1973; sections 3 (1) and 9 of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994 as amended by the Tribunals (Consequential Amendment e.t.c) and in particular the previous decisions in Jarnmal Steel Structures Ltd. (supra), Bronik Motors Ltd (supra) and his earlier decision in NDIC v. FMBN and their Lordships came to a unanimous conclusion that the dictum of Uwaifo, JCA, in NDIC v. FMBN as was upheld by the Supreme Court when the matter went on an appeal as FMBN v. NDIC thereto, ought to have been followed by the Court of Appeal. The appeal was therefore allowed.

In the words of Musdapher, JSC at pages 215 – 216, paras B- A while concurring with the lead judgment:-

“Going by the issues that arose for decision in the Court of Appeal in that case of NDIC v. FMBN (supra), the court over which I presided came to the conclusion that the proviso was not intended to deprive the Federal High Court of jurisdiction but only of exclusive jurisdiction in dispute between an individual and his bank in respect of transactions between the individual and the bank. That naturally meant that the State High Courts would also have jurisdiction in such disputes. Put in other words, both the Federal High Courts and the State High Courts would exercise concurrent jurisdiction as may be appropriate.”

On the holding by Oguntade, JCA, (as he then was) at the Court of Appeal that the decision by the Supreme Court per Ogundare, JSC, in FMBN v. NDIC (supra) on the concurrent jurisdiction of the Federal and State High Court in disputes emanating from banker/customer transactions, was obiter, the erudite Law Lord intoned as follows:-

I must hold that the court below was in grave error to have failed to regard that pronouncement as the ratio decidendi in that case rather than as obiter.”

From the fore going, it is clear beyond peradventure that all the cases cited by the learned counsel for the Respondents which are not in tandem with the ratio of NDIC v. Okem Ent. Ltd. (supra) go to no issue as far as the interpretation of section 251 (1) (d) and the proviso thereto is concerned.The above analysis sets the tone for the resolution of Issue ONE which is:-

“1. Whether the trial Judge was right in declining jurisdiction to entertain the Plaintiffs’ case in view of the provisions of Section 251 (1) (d) (r) and (s) of the Constitution of the Federal Republic of Nigeria 1999?”

All parties in their submissions are agreed that jurisdiction is a threshold issue, the life force of any adjudication and that where a court is bereft of jurisdiction the proceeding is a complete nullity no matter how brilliantly conducted. As Oputa J.S.C put it so succinctly, in Onyema & Ors v. Oputa & Ors (1987) 6 SC 362:

“Jurisdiction is fundamental and crucial for if there is want of jurisdiction the proceedings thereafter will be affected by a fundamental vice and would become a nullity no matter how well conducted they might otherwise be. Again submitting to jurisdiction of the court, is no answer to want of jurisdiction for a total want of jurisdiction cannot be cured by the assent of the parties. If the court does not possess an initial jurisdiction over the subject-matter, it is not possible that the consent of the individual could confer such jurisdiction”. See Ukwu v. Bunge (1997) 51 LRCN 1767 at 1786, Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 at 545 and Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539 at 178.

Thus, in view of the fundamental and crucial nature of jurisdiction, the courts have insisted that once it is challenged, the issue must be settled one way or the other before proceeding to delve into the substantive matter. See A.G Lagos State v. Dosunmu (1989) 3 NWLR. (pt.III) 552 at 609; Onyema & Ors. vs. Oputa & Ors. (1987) 3 N W.L.R. (Pt. 60) 259; A.G. Federation & Ors. vs. Sode & Ors. (1990) 1 N.W.L.R. (pt.128) 500 and Ukwu v. Bunge (1997) 51 L.R.C.N 1766 at 1786. In this case, whereas the contention of the Appellants is that the court below was in error to have struck out their claim for want of jurisdiction by virtue of Section 251 (1) (d) of Constitution of the Federal Republic of Nigeria, 1999, the Respondents argue per contra placing reliance most especially on the case of Seven Up Bottling Company Ltd v. Abiola & Sons Ltd, and other authorities to submit that only the State High Court has the jurisdiction to hear the case.

In the 7UP Bottling Co. Ltd. 7 & Ors. v. Abiola & Sons Bottling Co. Ltd. (2001) 6 S.C.N.J 18; the Respondent in a suit No: KWS/215/88 at the Kwara State High Court challenged the legality of the action of the 3rd Appellant (First City Merchant Bank Ltd.) in appointing the 2nd Appellant as receiver/manager over its assets which was mortgaged to the 3rd Appellant. The Respondent obtained an interim order by ex-parte motion restraining the Appellants from selling its assets pending the determination of the motion on notice but the 2nd Appellant in spite of the pending order continued selling the assets as he had done before the commencement of the action. The Respondent therefore initiated contempt proceeding against the Appellants which failed finally at the Court of Appeal.

Upon failure of the contempt proceedings, the Respondent again instituted the suit which finally went up to the Supreme Court claiming for a declaration and damages for conversion in that the Appellant illegally removed, sold and/or disposed of the plaintiffs forty-four vehicles in total disregard of a subsisting court order against the 2nd defendant from doing so. After filing the statement of defence, the Appellant challenged the jurisdiction of the Court to entertain the suit on the grounds that:-

“1. The condition precedent to exercise of the jurisdiction of the court has not been fulfilled, that is to say, leave of the court to sue the Receiver/Manager in respect of the Receivership was not obtained before the issuance and service of the Writ of summons.

“2. The issue of the validity and correctness or otherwise of the appointment of the 2nd defendant as a Receiver/Manager pleaded in paragraphs 2 and 3 of the statement if claim are the same cause of action in suit No. KWS/215/88, Abiola & Sons Bottling Co. Ltd v. 7Up Bottling Co. Ltd and Ors. KWS/122/91, Abiola & Sons Bottling Co. Ltd & Anor. V First City Merchant Bank Ltd.

“3. The High Court of justice Kwara State has no jurisdiction to hear and determine the plaintiff’s claim which concerns and relates to the management of the properties of the plaintiff in receivership by the Receiver/manage.”

After hearing the parties’ arguments, the learned trial judge dismissed the application and held that the High Court had jurisdiction to entertain the suit. On appeal to the Court of Appeal against the ruling, four issues were formulated for determination as follows:-

1. Whether the Court below had jurisdiction when the claims of the Plaintiffs arose from the management of the property of a company in receivership or a civil cause or matter arising from the operation or management of the company under the Companies Act and not a mere violation of a court order.
2. Whether the court was competent to adjudicate on this case where there existed cases pending between the parties on the same or substantially the same cause of action?
3. Whether the condition precedent to exercising jurisdiction by the court was satisfied by the Respondent/Plaintiff?
4. Whether the learned trial judge ought to entertain the claim of the Plaintiff which was capable of being subsumed into suit No.KWS/215/88 whose order was allegedly disobeyed, by way of amendment?

The Court of Appeal after considering only the first issue held that the trial court was properly vested with jurisdiction to entertain the suit and dismissed the appeal. On further appeal to Supreme Court, it was unanimously held that the Plaintiff’s action was grounded in the tort of conversion and had nothing to do with the official management of the plaintiff company by the second defendant as the plaintiff was not complaining about the sales of its assets by the 2nd defendant prior to the court’s order of interim injunction but the sale made in disobedience of that order. It was further held that, on the making of that order, the 2nd defendant could no longer sell until the order was discharged as he became a custodian of those assets and any sale made by him while the injunction subsisted could not be in lawful exercise of his powers of Receiver/Manager. See per Ogudare JSC at page 45 line 36-40 and page 46 lines 1-8 of the law report.

The dictum of Uwaifo, J.S.C. which has been touted about by the Respondents in this appeal as conferring exclusive jurisdiction on the State High Court as reported at pages 52 and 53 of the Report is reproduced hereunder as follows:-

“There is no doubt that the 2nd Defendant/Appellant acted on the basis that he was appointed a receiver by the 3rd Defendant/Appellant under a deed of mortgage debenture. That could well be a matter for the Federal High Court. But a subsisting order of court, whether or not issued by a competent court, had restrained him from acting. At that point he ceased in law, albeit temporarily, from being a person acting under a receivership mandate. By selling the Plaintiff/Respondent’s property as he did, he committed the tort of conversion because he was acting under no authority or excuse for dispossessing the Plaintiff/Respondent of its property and/or to disposing of them”,

Having set out the facts in 7-UP Bottling Ltd. v. Abiola & Sons Ltd. and NDIC v. Okem Enterprises Ltd. (supra) and the dicta of their Lordships of the Supreme Court thereon, the question now is which of these dicta is applicable to the appeal on hand? To answer this question, it is only necessary to have recourse to the provisions of Section 251(1) (d) and the proviso thereto of the Constitution of the Federal Republic of Nigeria, 1999, which was relied upon by the Appellants. That Section provides as follows:

“251 (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters

(a)

(b)

(c)

(d) Connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures; Provided that, this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank.”Further more, for a proper appreciation and resolution of this issue, it is also necessary to reproduce the provisions of the Constitution relating to the jurisdiction of the High Court of a State since the crux of this appeal is whether or not the High Court or the Federal High Court has the jurisdiction to entertain the suit of the Appellants. In this wise, we shall call in aid Section 272 of Constitution of Federal Republic of Nigeria, 1999 which provides as follows:

“Section 272. – (1) Subject to the provisions of section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”

It should be noted that the provisions of both Sections 251 and 272 of the Constitution begin with the clauses “notwithstanding anything to the contrary contained in the Constitution, and Subject to the provisions of section 251 and other provisions of this Constitution.” These clauses were the subject of judicial pronouncements by this court in the case of Ayeni v. University of Ilorin (2000) 2 N.W.L.R. 290 at 302, while interpreting Sections 230 (1) and 236 of the 1979 Constitution which were in pari materia with Sections 251 (1) and 272 of the 1999 Constitution when it was held thus:-

“Section 230 (1) of the 1979 Constitution as amended by Decree No. 107 of 1993 opens with the phrase ‘Notwithstanding anything to the contrary contained in this Constitution, ‘ while Section 236 of the same Constitution opens with the phrase ‘subject to the provisions of this Constitution. The meaning of the two phrases within the con in which they are used is that should there be any conflict in the provisions of the two Sections the provisions in Section 230 (1) shall prevail … In the circumstances when Sections 230 (1) (a-s) and 236 (1) of the Constitution of the Federal Republic of Nigeria as amended by Decree No. 107 of 1993 are read together, the provisions of Section 230 (1) (a-s) shall prevail and the State High Courts no longer have jurisdiction to hear and determine any of the civil causes or matters itemized under Section 230 (1) … ”

From the foregoing dictum of the Court of Appeal, the clause “notwithstanding anything to the contrary” contained in Sections 230 (1) of the 1979 and 251 (1) of the 1999 Constitutions, has been held to render the Federal High Court a sovereign in its own sphere as its exclusive jurisdiction restricts, limits, governs and prevails over the jurisdiction conferred on the State High Court as was endorsed by Uwaifo JSC in the land mark case of NDIC v. Okem Enterprises Ltd (2004) 10 N.W.L.R. (pt. 880) 107 at 182 to 183 when he posited inter alia:

“As has been observed, section 251 (1) of the 1999 Constitution begins with ‘notwithstanding anything to the contrary contained in this Constitution’ while section 272 (1) is specifically made ‘subject to the provisions of section 251 ‘. When the term ‘notwithstanding’ is used in a section of a statute, it is meant to exclude an impinging or impeding effect of any provision of the statute or other subordinate legislation so that the said section can fulfill itself. It follows that, as used in section 251 (1) of the 1999 Constitution, no provision of that Constitution shall be capable of undermining the said section. In regard to section 272 of the Constitution, Section 251 is directly relevant in that the former is made subject to it.

The expression ‘subject to’ means liable, subordinate, subservient, or inferior to; governed or affected by provided that or provided; answerable for: see Black’s Law Dictionary, 6th Edition, page 1425.”

Now, from the decision in NDIC v. Okem Enterprises Ltd. Supra, the proviso to section 251 (1) (d) only whittles down the exclusivity of the jurisdiction as conferred on the Federal High Court by the subsection but does not out rightly oust the subsisting original jurisdiction conferred on the court by that subsection. In other words, having found out that by the proviso to section 251 (1) (d) of the Constitution, where the suit emanates from transactions between a banker or bank and its individual customer, both the Federal and State High Courts share concurrent jurisdiction, to hear and determine the case, can we say that the lower court was justified in its ruling declining jurisdiction to entertain the Appellants’ claim?

All the learned counsel are ad idem that in determining whether the court below lacked jurisdiction, the claim of the plaintiffs only should or ought to be scrutinized. I am fortified by this stance from the avalanche of cases unleashed on this court by the respective counsel. See for instance Felix Onuorah v. Kaduna Refining & Petrochemical Co. Ltd (2005) All F.W.L.R. (pt. 256) 1356 or (2005) 6 NWLR. (pt.921) 393; Mustapha v. Governor Lagos State (1987) 2 NWLR. (pt.58) 539; O.H.M.B. v. Garba (2002) 14 N.W.L.R. (pt. 788) 538 and Kwara State v. Olawale (1993) 1 N.W.L.R. (pt.272) 6; and Alhaji Umaru Abba Tukur v. Governor of Gongola State (1989) 4 N.W.L.R. (Pt. 117) 517 at 549 para. B, cited by counsel on all sides of the divide. For instance, in Adeyemi v. Opeyori (1976) F.N.L.R 149, the Supreme Court held thus:-

”It is a fundamental principle of law that it is the claim of the plaintiff that determines the jurisdiction of the court which entertains the claim”. See O.H.M.B. v. Garba (2002) 14 N.W.L.R. (pt.788) 538 at 563-564 paras C-E where the Supreme Court relying on the case of Tukur v. Government of Gongola State (1989) 4 NWLR (pt.117) 517 expressed the same view.

Following the dicta of the Supreme Court in the above cited cases, we shall now take a look at the claim of the plaintiffs/appellants as endorsed in their writ of summons and statement of claim thus:-

“The plaintiffs claim from the defendant jointly and severally:-

i. The sum of N57,320,000.00 being the cost of all the machines carried away by the defendants; plus

ii. Cost of repair to the door and wall damaged by the defendants estimated to cost N65,000.00.

iii. The sum of #5 Million Naira as general damages for loss of production, suffering and inconveniences since 23rd January, 2004.

iv. The total claim from the defendants jointly and severally is N62,385,000.00 being the cost of various items removed illegally from the factory site at Km 8 Yakuba Village, Ilorin Jebba Road on 23rd January, 2004 by the defendants, cost of repair to the doors and walls damaged and general damages as a result of the action of the defendant”.

If the reliefs as couched are anything to go by, there is nothing like an inkling of banker/customer relationship and the contentions of the learned counsel for the 1st to 6th Respondents may be well founded since the reliefs sound more in the defendants proceeding with malice aforethought of appropriating the goods and chattels of the Plaintiffs/Appellants for the Defendants/Respondents use permanently or for a substantial time or by the Defendants destroying them or changing their quality; for this is the definition of the tort of conversion. As Uwaifo J.S.C aptly put it in 7-Up Bottling Co., Ltd. v. Abiola & Sons Ltd. (supra) at pages 52 line 39 to 53 lines 1-11; “One form of conversion is where there has been a positive and unequivocal wrongful act of dealing with goods in a manner inconsistent with the owner’s rights and an intention in so doing to deny the owner’s rights or to assert a right inconsistent with them: see Ashby v. Tolhurst (1937) 2 All ER 837; Moorgate Mercantile Co. Ltd v. Finch and Read (1962) 2 All ER 467; Howard E Peny & Co. Ltd. v. British Railway Board (1962) 2 All ER 579; Commissioner of Police v. Oguntayo (1993) 6 N.W.L.R (pt. 299) 259; Ojini v. Ogo Oluwa Motors Nigeria Ltd. (1981) 1 N.W.L.R (pt.534) 353. Conversion as a cause of action is a tort over which any State High Court has jurisdiction to entertain.”

The 2nd Respondent’s counsel has been most vehement in his assertion that the Appellants neither claimed nor pleaded the facts of banker/customer relationship between the Appellants and the 1st and 2nd Respondents except in paragraph 10 of the statement of claim, so have all other Respondents also contended. That paragraph avers as follows:-

“10 the plaintiffs aver that the Defendant-Barrister Abdul-Wahab Bamidele – who told the 2nd Plaintiff that he came to remove all the properties in the factory for sale to satisfy a loan granted to the plaintiffs by the National Economic Reconstruction Fund (NERFUND) sometimes in year 2000. ”

With this paragraph alone, the court below ought to have been wary in hurriedly dismissing or striking out the case of the plaintiffs without giving them a hearing. In 7-Up Bottling Company Ltd. v. Abiola & Sons Ltd. ( supra), which was cited with much verve and gusto by the Respondents, Onu, J.S.C, delivering the lead judgment of the Supreme Court, held that:-

“In necessarily restricting itself to the statement of claim the court is not obliged to consider seriatim all the averments in the statement of claim. It is sufficient that the court looks at same as a whole and/or refer to few averments that form the gravamen of the claim”.

Applying the above dictum to our instant case, a look at some paragraphs of the statement of claim would reveal that the Appellants had disclosed the Banker/Customer relationship between them and the 1st, 2nd and 3rd Respondents. For the avoidance of doubt, paragraphs 3, 4, and 5 of the statement of claim read thus:-

“3. The 1st Defendant is the 1st Defendant in suit number FHC/IL/CS/16/2003 pending before this Honourable Court.

“4. The 2nd Defendant is a legal practitioner engaged to recover some loan granted the plaintiffs by the 1st Defendant and he is 4’h Defendant in Suit No. FHC/JUCS/16/2003 pending in this court.

“5. The 3rd Defendant is one of the 1st Defendant in this Suit”;

And in paragraph 8 the Appellants made their relationship with the 1st-3rd Defendants/Respondents very clear in these words:-

“8. On 6th October, 2003 the Plaintiff filed an Originating Summons in Suit No. FHC/IL/UCS/16/2003 pursuant to Order 2 Rule 2 of the Federal High Court Civil Procedure Rules, 2000, to interpret certain paragraphs of the loan agreement contained in the approval of banking facilities to the plaintiffs dated 17th and 24th June, 1998 issued by the National Reconstruction Fund with 1st, 2nd and 6th Defendants”

From these paragraphs, it would appear that the learned trial Judge never looked at the statement of claim of the Plaintiffs at all but once the magic word “Conversion” was mentioned by the Respondents and the mantra of 7-Up Bottling Co. Ltd. v. Abiola & Sons was chanted, His Lordship simply got enchanted and abdicated his primary responsibility of scrutinizing the Plaintiffs/Appellants’ claim in order to determine whether he had jurisdiction. We have been inundated with several cases tending to buttress the fact that the Federal High Court had/has no jurisdiction to hear the Appellants’ case the most celebrated which is the 7-Up Bottling Co. case. However, the Supreme Court as earlier been stated, has laid to rest the controversy surrounding the interpretation of section 251 (1) (d) of the Constitution and the proviso thereto, in the case of NDIC v. Okem Enterprises (2004) All FWLR (pt. 210) 1176, when it stated that the provisions of the 1999 Constitution conferring jurisdiction on the Federal High Court has changed the erstwhile position of the law on the issue of jurisdiction of the court and that the earlier decided cases relating to the different constitutional provisions on that issue have to that extent spent their force and instead held that the wordings of that section are different from those of section 7(1)(d) (iii) of the Federal Revenue Court Decree, 1973, which dealt with “banking, foreign exchange, currency or other fiscal measures which wordings instructed the interpretation of the word “banking” by the apex court as used in Jammal Steel Structures Ltd. vs. A.C.B. Ltd. (1973) 1 All NLR (pt. 2) 208 to mean “banking measure” under the ejusdem generis rule.

According to Uwaifo, J.S.C, who read the lead judgment In NDIC v. Okem Enterprises Ltd, see (2004)10 N.W.L.R 107 pages 181 -182 paras. D-E:-

“But section 251 (d) of the 1999 Constitution is meant to give the Federal High Court exclusive jurisdiction in “banking” in the wide sense to involve all banking transactions. Thereafter, the law maker then introduced a proviso that: “provided that this paragraph shall not apply to any dispute between an individual customer and the bank in respect of transaction between the individual customer and the bank”. However, in construing the effect of the proviso, the exclusive jurisdiction inferred under section 251 (1) (d) should not be lost sight of especially as the section begins with the phrase “Notwithstanding anything to the contrary contained in the constitution…”

Kalgo J.S.C in his contribution at pages 197-198 paragraphs C-A, hit the nail on the head when he stated thus:-

”The removal of exclusivity from the jurisdiction of the Federal High Court, in respect of disputes between individual customer and his bank by the proviso in section 230(1) (d) of the Decree 107 of 1973 and section 251 (1) (d) of the 1999 Constitution, does not mean that the Federal High Court ceased to have jurisdiction in respect of those disputes but it only, means that the jurisdiction is not exclusive to the Federal High Court…”

With due respect to the Court of Appeal, S. 251 (1)(d) of the 1999 Constitution does not confer exclusive jurisdiction in disputes between individual customer and the Bank on the State High Courts. All it did is to remove the exclusivity in dealing with those kinds of disputes from the Federal High Court; which means that the High Court of a State by virtue of the section 272(1) of the 1999 Constitution also shares the jurisdiction with the Federal High Court.”

I have looked at the facts of this case as can be gleaned from paragraphs 3, 4, 5, 8, and 10 of the Plaintiffs/Appellants’ statement of claim and am satisfied that they are not in all fours with the facts in 7-Up Bottling Co. Ltd v. Abiola & Sons Ltd. so as to insinuate as the learned counsel for all the Respondents have done and the learned trial Judge had also erroneously held, that the claim of the Appellants was in conversion, thereby ousting the jurisdiction of the trial court. Apart from the fact that in the 7-Up Bottling Co. Ltd v. Abiola & Sons Ltd. case, the Plaintiffs/Respondents sued in conversion out rightly against the Receiver/Manager/2nd Appellant who had sold the Plaintiffs/Respondents distrained assets, there was a subsisting order of injunction from the trial Court which was violated by the said sale or disposal of those assets during the pendency of the restraining order. These facts necessitated the holding by the Supreme Court that at the point the trial court made the restraining order on the 2nd Appellant who obviously acted on the basis of his appointment as receiver by the 3rd Defendant/Appellant under the Deed of Mortgage, the (2nd Appellant), ceased in law albeit temporarily, from being a person acting under a receivership mandate thereby committing the tort of conversion since he was acting under no authority or excuse for dispossessing the Plaintiffs/Respondents of their property and/or disposing of them.

In our instant case, it has been shown that the Appellants got a loan from the 1st Respondent/Bank (Union Bank Plc.) and the 3rd Respondent is an officer of the 1st Respondent while the 2nd Respondent was appointed by the 1st Respondent to recover the said loan from the Appellants. The 4th, 5th and 6th Respondents are police officers who were engaged to purportedly enforce the terms of the Deed of Chattel Mortgage entered into by the Appellants and 1st and 2nd Defendants/Respondents. There is no evidence that there was a restraining order from the court below which would have rendered the 1st, 2nd and 3rd and indeed 4th to 6th Respondents tort-feasors in conversion, when they exercised a right they believed inhered in them as Creditors/Bankers to the Appellants/Debtors in a transaction between the Respondents as bankers and Appellants as their individual customers. Without mincing words, the proviso to section 251 (1) (d) of the 1999 Constitution and the case of NDIC v. Okem Enterprises Ltd. (supra) apply mutatis mutandis to the facts and circumstances of this case, there being a banker customer relationship between the Appellants and 1st and 2nd Respondents. The Federal High Court as well as the State High Court therefore shared/share concurrent jurisdiction to hear and determine the claim of the Appellants.

Apart from the applicability of section 251 (1) (d) of 1999 Constitution and the proviso thereto, the court ought to have taken into consideration the provisions of section 251 (1) (q) (r) (s) and the proviso thereto; the individual status of the 4th to 6th Respondents and in particular the 6th being the Commissioner of Police Kwara State who are all officers of a Federal Government Agency (the Nigeria Police), more so as the 2nd Respondent alleged that he was in the premises of the Appellants to remove all the properties in the Appellants’ factory for sale to satisfy a loan granted to the Plaintiffs/Appellants by the National Economic Reconstruction Fund (NERFUND)-another agency of the Federal Government of Nigeria sometime in the year 2000; before abdicating the jurisdiction to entertain the Plaintiffs’ claim. In NEPA v. Edegbero (2003) F.W.L.R (pt. 139) 1556 at 1569; Section 230 (1) (q) (r) (s) which is in pari materia with section 251 (1) (q) (r) (s) and the proviso thereto, was considered and interpreted by the Supreme Court per Ogundare J.S.C thus:-

“A careful reading of paragraphs (q) (r) and (s) reveals that the intention of the lawmakers was to take away from the jurisdiction of the State High Court and confer same exclusively on the Federal High Court actions in which the Federal Government or any of its agencies is a party. While paragraph (s) talked of actions for declaration or injunction, the proviso extended this to actions for damages, injunction or specific performance. It did not say as the learned trial judge, with profound respect, appears to read into it that action for damages, injunction or specific performance against the Federal Government or any of its agencies could still come before a State High Court. I am of the view that the learned trial judge was in error in his interpretation of the purport of the proviso.”

See the dictum of Uwais CJN at page 1571 paras. F and H of the Law Report.

Tobi JSC, in his contribution to that judgment at pages 1573 – 1574, laid down the necessary guide lines for the determination of when the Federal High Court has exclusive jurisdiction under section 230 (1) (p) (q) (r) (s) including the proviso [now section 251 (1) (P) (q) (r) (s)], when he posited that in the construction of the sections, two important factors are relevant which are the parties and the subject matter of the litigation. According to the erudite justice, the court must consider both factors and that in construing the parties there is no difficulty but that the difficulty may arise in the identification of an agency of the Federal Government in certain matters. On the subject matter, His Lordship was of the view that for the Federal High Court to have exclusive jurisdiction the matter must be a civil matter arising from the administration, management and control of the Federal Government or any of its agencies. The matter must also arise from any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative or decision by Federal Government or any of its agencies. See Adegbite v. NEPA (1998) 12 NWLR (pt 577) 219.

In Fawehinmi v. I.G.P (2002) 23 WRN page 1 at 30 -40; Uwaifo JSC quoted with approval the extent of police powers as defined at page 1041 of Black’s Law Dictionary 5th Edition and the views expressed in Ex Parte Blackburn (1968) 2 Q.B. 118 per Lord Denning M.R. and De Smith’s ‘Judicial Review Of Administrative Action’ at page 549 as follows:-

“Police power is the exercise of the sovereign right of a government to promote order, safety, health, morals and general welfare within constitutional limits and it is an essential attribute of government.”

There is no doubt that the 4th to 6th Respondents are agents of Federal Government and if the claim of the Plaintiffs in the lower court were to be exclusive against them, the Federal High Court would have exercised exclusive jurisdiction but because the subject matter/cause of action arose from a transaction between a bank and its customer, both the Federal and State High Courts have concurrent jurisdiction to entertain the suit. In conclusion I disagree with the submissions of all the learned counsel for the 1st to 6th Respondents that the claim of the Appellants was in conversion. Issue Number One is therefore resolved in favour of the Appellants as the lower court haslhad jurisdiction to entertain the suit.

ISSUE NUMBER TWO:

WHETHER THERE WAS CAUSE OF ACTION IN THE PLAINTIFFS CASE?

Black’s Law Dictionary defines ’cause of action’ as: “A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.” The term has further been defined generally as a situation or state of fact that entitles a party to maintain an action in a judicial tribunal and that the state of facts may be –

(a) a primary right of a plaintiff actually violated by the defendant; or

(b) the threatened violation of such right, which violation the plaintiff is entitled to prevent or restrain, as in the case of actions for injunction; or

(c) it may be that there are doubts as to some duty or right or the right is beclouded by some apparent adverse right or claim, which the plaintiff is entitled to have cleared up, that he may safely perform his duty or enjoy his property. See “The Law Of Pleading Under The Codes Of Civil Procedure”, 2nd Edition 1899, at page 170 quoted at page 214 of Black’s Law Dictionary 7th Edition by Bryan Garner.

The learned counsel for the Appellants had submitted that before striking out the plaintiff’9191s claim, the court below ought to have considered the statement of claim dated 14th April, 2004 and Proposed Amended Statement of Claim dated 30th June, 2006 which the court failed to do. He cited Chief Osita Ilozor v. Usman Ahmadu & Anor. (2003) F WL.R. (Pt. 163) at 139 and ?.IB. Building Society vs. Adebayo (2004) F.W.L.R. (Pt. 193) 223 at 245 and other cases to submit that the reliance placed by the learned trial Judge on the cases of 7Up Bottling Co. vs. Abiola & Sons Ltd (supra) and Union Bank v. Ozigi (1994) 3 N.W.L.R. (Pt. 333) 385 at 40, to hold that the plaintiffs’91919191 claim disclosed no cause of action was erroneous and that if he had considered the Statement of Claim and the Proposed Amendment thereto, he would have come to a different conclusion. He had also cited Ailo (Nig.) Ltd v. Ankpa Coop. Credit & Marketing Union Ltd (2004) All FWLR (Pt. 210) 1336 at 1350 paragraph D and made references to paragraphs 8 of the Statement of Claim, 21, 22, 23, 24 and 25 of the Proposed Amended Statement of Claim which according to him disclosed a cause of action or would have sustained the action if the motion for amendment dated 30th June, 2006 was considered and granted. He finally submitted that the failure to consider the Statement of Claim or the motion for amendment was prejudicial to the Plaintiffs/Appellants’9191 case since it disclosed a cause of action.

It is now trite from above definitions that a cause of action is a fact or combination of facts which is cognizable by law as donating to the plaintiffs, as in this case, a right of action or to seek and sustain judicial remedy or redress in a court of law as was analyzed in the s above cited. In order therefore to vest the Plaintiffs/Appellants with the right to invoke the judicial power of the court, they must evince through their pleadings that either their individual or collective interest has been or is likely to be jeopardized by the wrongful act or acts of the Defendants/Respondents or that such act(s) resulted in consequential damage or detriment to the Plaintiffs/Appellants.

It is also settled law on a plethora authorities that in order to determine whether or not a Plaintiffs claim discloses a cause of action, the trial Judge must consider the pleadings in the Statement of Claim only; since at that juncture, no evidence has been adduced and where certain facts are not in dispute, the learned trial Judge ought to so pronounce. See Lasisi Fadare & Ors. v. A.G. Oyo State (1982) 4 SC 1 at 6 to 7 per Aniagolu, J.S.C who followed the decision of Lord Esher in Cooke v. Gill (1873) L.R. 8 C. P. 107 and Read v. Brown (1888) 22 Q.B.D. 128 (CA.) where it was held that cause of action denotes every facts (though not every piece of evidence) which it would be necessary for the Plaintiff to prove, if traversed, to support his right to the judgment of the court. See also A. G. Federation & 2 Ors. v. Atiku Abubakar & 3 Ors. (2007) 32 N.S.C.Q.R. 1 at 58 and 59 per Akintan J.SC and the cases cited by the learned counsel for the Appellants.

In this case, a look at paragraphs 6, 8, 9, 10, 11, 12, 17 and 19 of the Statement of Claim and paragraphs 21, 22, 23 and 24 of the Proposed Amended Statement of Claim would reveal that they all disclose facts that the Defendants/ Respondents are alleged to have proceeded to the Plaintiffs/Appellants’ factory site and participated in the removal of machineries/items mentioned in paragraph 19 (i – xiv) thereof, without the lawful authority of the Appellants. The Defendants are also alleged to have damaged the doors and walls of the factory. From the foregoing enumerated paragraphs of the Statement of Claim dated and filed on 14th day of April, 2004, and the Proposed Statement Of Claim dated 30th June, 2006, it is clear that the Appellants have interest in the subject matter of the suit which is the carting away of their machineries and damage to the doors and walls of their factory and have accordingly demonstrated that facts exist which if traversed (as indeed the 1st and 3rd Defendants/Respondents have done already in their Joint Statement of Defence filed on the 9th November, 2004 which includes the grounds for the objection leading to the striking out of the Appellants’ suit); would be necessary to prove in order to support their right to the judgment of the court. See also the Statement of Defence of the 2nd Defendant dated 2nd June, 2006 attached to the Motion on Notice filed and dated 2nd June, 2006 by the 2nd Defendant’s Counsel on behalf of the 1st to 4th Defendants. There is also no doubt that the Appellants are alleging that they have suffered consequential damage as a result of the collective wrongful acts of the Defendants/Respondents. A controversy or dispute has therefore ensued between the parties which would warrant the Plaintiffs/ Appellants to invoke the adjudicatory powers of the court below.

It would also be recalled that in the notice of the preliminary objection incorporated in the Joint Statement of Defence of the 1st and 3rd Defendants, the grounds of objection are stated as follows:

“The 1st Defendant shall raise preliminary objection at the trial of this suit that the Plaintiffs’ action discloses no cause of action, and shall pray the court to dismiss same.

GROUNDS FOR THE OBJECTION

(a) A claim in an action in detinue, as in the instant case, is not for damages but for the demand for the return of the specific goods if the goods were unjustly or wrongfully detained

(b) The Plaintiffs never demanded for the return of the goods allegedly removed.

(c) Cause of action in this suit has not arisen, as cause of action in detinue arises only from the date of judgment, not before.

2. (a) The removal of the Chattels for sale to satisfy the loan received by the Plaintiffs from the 1st Defendant was not wrongful.

(b) There are provisions in the Deed of Chattel Mortgage executed by the 1st Plaintiff that authorize the 1st Defendant, (as an unpaid Mortgagee) its servants or agents to seize the mortgaged chattels if Plaintiffs default the chattels. ”

Paragraphs 8, 9 and 10 of the plaintiffs’ statement of claim and 21 to 24 of the Proposed Amended Statement of Claim together with the above underlined Grounds of the preliminary objection amply demonstrate clearly that there is a dispute between the parties from their banker/customer relationship from which a cause of action had accrued to the Appellants owing to the carting away of their (appellants’) machineries on the purported execution of the Deed of Chattel Mortgage.

I therefore agree with learned counsel for the Appellants that if the learned trial Judge had carefully scrutinized the Plaintiffs’ Statement of Claim he would have discovered that it sufficiently disclosed a reasonable cause of action or some questions fit to be decided by the Judge and irrespective of whether the Plaintiffs would succeed or not and whether or not the Plaintiffs’ case was weak he ought not to have determined same without hearing the parties and their witnesses. See the case of E.I.B. Building Society v. Adebayo (2004) F.W.L.R. (pt. 193) 223 at 245.

The facts in 7-Up Bottling v. Abiola (supra) had already been highlighted and analyzed in holding that the claim of the Plaintiffs was not in conversion as purported by the Respondents and erroneously held by the court so as to divest the Federal High Court of its original jurisdiction as donated to it by section 251 (1) (d) of the 1999 Constitution. On the other hand, the case of Union Bank v. Ozigi (supra) which was also relied upon by the learned trial Judge to strike out the Plaintiffs’ claim was not dismissed in limine as was done in the present case under appeal; rather, evidence was led by the parties in the Kwara State High Court, Okene Division, as can be seen at pages 387 of the Report where the summary of the facts of the case were stated; pages 396 paragraph C and 397 paragraphs B – D, where Adio J.S.C. in his lead judgment reflected inter alia: “The evidence led by the Respondents…”, and that the issues identified in the Appellants Brief were as follows:

“1. Whether the Plaintiff in the court below, discharged his burden to prove his case by credible evidence to justify the affirmation by the Court of Appeal of the first, second, third and fourth reliefs granted to the Plaintiff/Respondent by the trial court.

“2 Whether, on a proper construction of Clause 3 of Exhibits 5 and 6 (Deeds of legal mortgage) the mortgagee (the Appellant herein) had an obligation to notify the mortgagor (Respondent herein) of the change in interest rates from time to time, and whether the failure of the Appellant to give such notice justified the nullification by the Court of Appeal of the variation of interest rate in Clause 3.”

From the foregoing, it is clear that parties were allowed to ventilate their grievances by calling witnesses and tendering documentary evidence which was construed before the judgment that eventually went up to the Supreme Court. Again, the facts in Felix Onuorah v. K.R.P.C. Ltd (supra) which were purely on a simple contractual relationship can be distinguished from the peculiar circumstances of this case which emanated from a loan transaction between a bank and its customer.

It has been submitted by counsel for 2nd Respondent that the learned trial Judge did not base his decision to decline jurisdiction on the fact that the Plaintiffs’ claim did not disclose any cause of action, but if one may ask, what then is the purport of the assertion by the learned trial Judge that: “I am of the considered view that however and whatever way you view this case, either from the angle of executing a Deed of Chattel Mortgage or from the angle of tort of conversion, the Plaintiff will not be successful”? In my candid opinion, apart from prejudging the case of the Plaintiffs without hearing them, the purport of the afore – quoted excerpt of his ruling indirectly tantamount to holding that the case of the Plaintiffs was frivolous and without foundation – in this case – cause of action. Assuming, the learned trial Judge did not allude to cause of action in his ruling, the issue of jurisdiction has been resolved in favour of the Plaintiffs/Appellants in this Court.

As regards the contention by the Respondents (particularly the 2nd) that the issue of cause of action had been decided by the Justice Olayiwola since 13/6/2005 at pages 26 – 27 of the Records, it is submitted with the greatest respect to the learned counsel, that the ruling alluded to was in respect of the preliminary objection raised by S.A. Bello Esq. counsel for the 1st and 3rd Respondents, that the Plaintiffs’ claim then was in detinue and as such it disclosed no cause of action on the grounds stated in the notice dated 26th October, 2004 and filed on the 27th day of October, 2004. The court per Olayiwola J. rightly in my view, over ruled the preliminary objection holding that: “I cannot in the face of the writ and Statement of Claim hold that there is no cause of action in this matter.”

The above ruling is different from the ruling delivered by Nnamani J. which was on the objection that the Plaintiffs’ claim disclosed no cause of action in that the Defendants’ action in carting away the Plaintiffs’ machineries without court order was not wrongful as they had the right to execute Clauses 8 and 9 of the Chattel Mortgage without court order; and that the Federal High Court lacked jurisdiction to entertain the claims of the Plaintiffs because it was grounded on the tort of conversion. See pages 16 – 17 of the Records and the arguments of all Respondents’ counsel.

The learned counsel for the 2nd Respondent has faulted the contention by counsel for the Appellants that the lower court was wrong in not considering Suit No. FHC/IL/CS/16/2003 wherein they had earlier sought in the same court for the interpretation of Clauses 8 and 9 of the Chattel Mortgage and the two letters emanating from NERFUND submitting that the said suit which was pending, before the Defendants proceeded to remove the machineries, was in another court. He has cited Obiora Mokwe v. Ezeuko (SAN) & Anor. (2001) F.W.L.R. (pt.38) 1286 paragraph G where the Court of Appeal, Enugu Division held: “that the existence of that action cannot be presumed nor, could the learned trial Judge have properly taken judicial notice of a matter pending before another Judge of the same judicial division by a mere reference to the number of the case … ”

With due reverence to the learned counsel for the Respondents, Obiora’s case is distinguishable from our present case in that apart from the pendency of Suit No.FHC/IL/CS/16/2003 before Nnamani J. the present suit now on appeal is interrelated with the former as they arose from same background which is the banker/customer relationship – a dispute between the parties on the modalities for the settlement of the loan facilities granted the Plaintiffs by the 1st Defendant which necessitated the filing of FHC/IL/CS/16/2003 for the interpretation of certain documents emanating from the transaction. The present suit on appeal emanated from the purported execution of Clauses 8 and 9 of the Deed of Chattel Mortgage by removing the machineries mentioned in paragraph 19 of the Statement of Claim which Deed of Mortgage together with the letters from NERFUND are sought to be interpreted in Suit No FHC/IL/CS/16/2003. There is therefore a nexus between Suit No. FHC/IL/CS/7/2004 and FHC/IL/CS/16/2003 as amply demonstrated at pages 80 and 81 (13 and 14) of the Record of proceedings of 7th July, 2006 where the court said:

“I will (sic) adjourned this matter to the same date adjourned the sister case just to give settlement out of court a chance…

The line issue here is whether the Bank has a right to do what they did without a court order or during the pendency of another suit (related).”

If one may ask, which ‘sister’ or ‘related’ case was the learned trial judge alluding to, if not Suit No. FHC/IL/CS/16/2003? From the underlined portions of the excerpts of the proceedings of 7/7/2006, there is no doubt that the sister or related case, to which the learned trial judge alluded above, is Suit No. FHC/IL/CS/16/2003 filed earlier by the Plaintiffs and during the pendency of which the Respondent went ahead to execute the Deed of Chattel Mortgage, clauses 8 and 9 thereof and the two letters from NERFUND which were subject and due for interpretation in the said sister or related suit. From the foregoing therefore, the submissions of learned counsel for the Respondents in this direction are highly misconceived and accordingly Issue Number 2 shall also be resolved in favour of the Appellants.

ISSUE NUMBER 3:- “WHETHER THE PLAINTIFFS WERE GIVEN FAIR HEARING BEFORE THEIR CLAIM WAS STRUCK OUT?”

To resolve this issue, it is also necessary to have recourse to the proceedings of the 14th of July, 2006 and the state of the law on fair hearing. In the locus classicus of Isiyaku Mohammed v. Kano Native Authority (1968) 1 All N.L.R. 42, one of Nigeria’s most erudite Jurist and Pioneer Chief Justice of the Federation, Adetokunbo Ademola (C.J.N), had illumined the dark crevices of the principles of fair hearing and the true test to be applied when confronted with the scenario we have found ourselves when he posited:-

“We think that a fair hearing involves a fair trial and a fair trial of a case consists of the whole hearing. We therefore, see no difference. The true test of fair hearing, it was suggested by counsel, is the impression of a reasonable person who was present at the trial, whether, from his observation justice has been done in the case. We feel obliged to agree with this. ”

See also Gaji v. The State (1975) 5 S.C 61 where the Supreme Court speaking in the same vein held further that the test is that of a fair view of a dispassionate visitor to the court who watched the entire proceedings and it may as well be added that the test also includes that of an un-officious by-stander or reasonable man who upon perusal of the record of proceedings would go with the impression as to whether justice was done to the parties or not. Thus, in the recent case of J.C.C Inter Ltd. v. N.G.I. Ltd (2002) 4 W.R.N 91, 104; it was held that in the determination of the principles of fair hearing, the primary question is not whether any injustice has been done on any party due to want of hearing but whether an opportunity of hearing was afforded the parties entitled to be heard. Accordingly, in order for a hearing to be fair or for a party to be said to have been afforded an opportunity to be heard, the following essential ingredients must be inherent in the conduct of the case:-

1. That the court shall hear both sides on all material issues in the case before reaching a decision which may be prejudicial to any of the parties.
2. That the court or tribunal shall give equal treatment, opportunity and consideration to any concerned;
3. That the proceeding shall be held in public and an concerned shall have access to and be informed of such a place of public hearing;
4. That having regard to an the circumstances in every material decision in the case, justice must not only be done, but must manifestly and undoubtedly be seen to have been done; and it must also be added that parties be allowed to cross-examine or otherwise confront or contradict an the witnesses that testify against them; and to give evidence by themselves, call witnesses, if they so wish and to make oral submissions. See Chief S.C Awuse v. Peter Odili (2005) All F.W.L.R pt 253 p. 720 at 728 paras. D – G; and also Nwanegbo v. Oluwole (2001) 37 W.R.N 101; Dawodu v. N.P.C (2000) 6 W.R.N 116; Durwode v. State (2001) 7 W.R.N 50 and the recent decisions of this Honourable Court in Gabriel Olusegun Emenegor v. The State Appeal No. CA/1VC61/2007 unreported delivered on the 20th day of June, 2008 at page 38; Attorney-General of Kwara State & 2 Ors v. A. A. Abolaji delivered on the 24th day of February, 2009 per Nweze J.C.A at pages 16 and 17. Against this background, we shall now determine whether from the conduct of the learned trial Judge the plaintiffs were given a fair hearing.

The first of the Appellants’ grouse against the learned trial Judge is the refusal of the court to consider their motion for amendment first before hearing the preliminary objection that led to the eventual striking out of the case. The Respondents on the other hand contend that since their application was a preliminary objection that touches on the jurisdiction of the court, the hearing of the preliminary objection should take precedence as the court had rightly done. There is no doubt that the basic position of the law is that where there are two pending applications, one seeking to terminate the proceedings and the other seeking to restore life to the proceedings, the latter in time seeking to resuscitate the case should be given priority. However, as has been rightly submitted by counsel for the Respondents, citing the cases of 7-Up Bottling Co. Ltd v. Abiola & sons Bottling Co. Ltd (supra); Odofin v. Agu (1992) 3 NWLR (pt.220) 350 at 364; Kallo v. Daniel (1975) 12 SC 175; Barclays Bank Nigeria v. CBN (1976) 6 SC 176; Olosunde v. Eyialegan (2005) All FWLR (pt. 242) 503 at 510; Onyemeh v. Egbuchulam (1996) 5 NWLR (pt. 488) 255, Ahameku v. Eheruo (2002) 1 NWLR (pt.748) 301 at 309; Ogoja LG v. Offoboche (1996) 7 NWLR (pt. 485) 48 and in particular, the recent Supreme Court case of Omokafe v. Military Administrator of Edo State (2005) All FWLR (pt.243) 629 at 640; where as in this case, the preliminary objections of the Respondents touched on the threshold issue of the jurisdiction of the court, the lower court ought to accord same the primacy of place as was done on the 14th day of July, 2006, notwithstanding any motion for amendment. This is because once the court discovered that it lacked the requisite jurisdiction to entertain the suit but went ahead to entertain same, the entire proceedings would be a complete nullity no matter how brilliantly conducted. See Madukolu v. Nkemdilim (1962) 1 SCNLR 341; Ajakaiye v. Military Governor of Bendel State (1993) 9 SCNJ 242; and Ogbanu v. Oti (2000) 8 N WLR (pt. 670) 582; all cited in Ailo Nig Ltd. v. Ankpa Group Credit & Market Union Ltd. I am not oblivious of the decisions in Mobil Producing Nig. Ltd. v. Monokpo & Anor. (Supra); Nalsa Team Associates v. NNPC (supra); Olayiwola v. Opaleke (supra) and Uba v. Ujor (2002) F.W.L.R (pt. 88)1014 at 1037 para. D but from the circumstances of this case, the court appropriately took the right step when it heard the preliminary objections of the Respondents which touched on the issue of jurisdiction.

On the next complaint of the Appellants which is that the refusal of the trial court to grant them adjournment on the 14th day of July, 2006, amounted to a denial of fair hearing particularly as the plaintiffs came to court to report on what has been done in a bid to settle the matter out of court, the contentions of the Respondents counsel that adjournment of cases is at the discretion of the court are on very solid grounds particularly with due regard to the provisions of Order 37 Rule 10 of the Federal High Court (Civil Procedure) Rules, 2000 and decided authorities like University of Ilorin v. Oyelana (2001) F.W.L.R (pt. 83) 2193 and Alsthom S A. v. Saraki (2005) All F.W.L.R (Pt.246) 1385 at 1389 cited by learned counsel for the 2nd Respondent. In Ilona & Ors v. Ojugbeli & Ors (1971) 1 All N.L.R 8 at 13, the Supreme Court held quoting Lord Wright, L. J. in the English case of Evans v. Bartlam (1937) AC. 473 at 487 inter – alia:-

“A judge’s order fixing the date of a trial or refusing to grant an adjournment is a typical exercise of purely discretionary powers, and would be interfered with by the Court of Appeal only on exceptional cases yet it may be reviewed by the Court of Appeal. Thus, in Maxwell v. Keun (1928) 1 K.B 645; the Court of Appeal reversed the trial judge’s order refusing to the plaintiff an adjournment. That was a pure matter of discretion on the facts. Atkin L. J said (at p. 653): “I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does so, but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the Court has power to review such an order, and it is to my mind, its duty to do so.”

What emerges from the authorities cited above is that although adjournment is at the discretion of the court, such discretion must be exercised judicially and judiciously and according to common sense. See Odusote v. Odusote (1971) 1 All N.L.R 219 at 223 -224; Salu v. Egierbon (1994) 6 N.W.L.R (pt. 554) at 506 – 507; Oyedeji v. Akinyele (2002) 3 N.W.L.R (pt.755) 586 at 613. In the determination of the judicious and judicial exercise of the court’s discretion to adjourn or not, the court ought to balance the interest of the parties and its own interest, taking into consideration the peculiar facts and circumstances of the case, the number of adjournments previously granted and the reasons advanced by the party seeking the adjournment as well as the reasons given by the opposing party viz-a-viz the court considering whether the reasons are frivolous, unsupportable or motivated to cause delay or stall the proceedings.

Also, there is no doubt that it has been settled by the Supreme Court in a plethora of cases amongst which are Bill Constructions Co. Ltd v. Imani & Sons Ltd/Shell Trustees Ltd. (A joint Venture) (2007) 7 W.R.N 152; and News Watch Communications Ltd. v. Alhaji Aliyu Ibrahim Atta (2006) 34 W.R.N 45 lines 10 – 35 cited by counsel for the 1st and 3rd Respondents, that the party who has been given ample opportunity to ventilate his grievances in a court of law but chooses not to utilize same cannot be heard to complain of breach of his right to fair hearing as what the court is expected to do by virtue of section 33 of the 1999 Constitution, is to provide the necessary conducive atmosphere for parties to exercise their rights to fair hearing.

Again, as was rightly held by this court in Ajisefini v. DPP (2002) F.W.L.R (pt.122) 88 at 104 per Adamu, J.C.A, where a party engages or indulges in dilatory tactics or makes it impossible for a trial to come to an end by embarking or initiating interlocutory processes or applications with a view to stalling proceedings, it can be said that the party is invoking due process to defeat justice being done to the other party. In such circumstances, the court would be justified in refusing an adjournment.

The authorities have also settled that in considering whether in the refusal to grant an adjournment, there was a breach of the Appellants’ right to fair hearing, the entire proceedings ought to be thoroughly scrutinized. From what transpired on the 7th day of July, 2006, even though the court adjourned the case to the 14th to give the parties the opportunity for settlement out of court, it is also clear that the learned trial judge descended into the arena when he remarked;

“The plaintiff counsel has realized the absurdity of his case and I am sure he will have a rethink. The 1st and 3rd defence counsel had cited Abiola’s case in 7-Up Bottling Co. Ltd v. Abiola and I am sure he will read it up. The live issue here is whether the bank has a right do what they did without a court order, or during the pendency of another suit (related). ”

Even on the 14th of July, 2006 when the case was struck out following the objection, the Appellants’ counsel had protested vehemently and pleaded for an adjournment as settlement was still ongoing and for his house to be put in order but the learned trial judge as usual pandered to the whims of the Respondents when he observed characteristically:- “I have observed that all defence counsel (sic) objects to an adjournment, as it is becoming a pattern for the plaintiffs, since no cogent reason (sic) adduced for adjournment. Accordingly application for adjournment refused.”

I have read through the length and breadth of the Record of Proceedings particularly that of the 7th July, 2006, and there is no where the Appellants conceded that they had realized the absurdity of their case or that the bank had the right to do what they did without court order during the pendency of another related suit. With the greatest respect to the learned trial judge, the fact that there was even a pending related suit, would have jolted the court to be circumspect and give the parties the opportunity to ventilate their grievances at a full hearing more so, when parties had joined issues. This was not to be as it would appear that the learned trial judge had his mind fixated on the authority of 7-UP Bottling Co. Ltd. v. Abiola & Sons Ltd. and infact predetermined the case of the Appellants when he held at page 17 (84) of the Record of Proceedings that:-

“I am of the considered view that however and whatever way you view this case, either from the angle of executing a Deed of Chattel Mortgage or from the angle of tort of conversion, the plaintiffs would not be successful.”

It is pertinent to note that the preliminary objections of the Respondents’ counsel were predicated on grounds of non-disclosure of cause of action and that the claims of the plaintiffs were in the tort of conversion. Therefore, once the court below discovered that it lacked jurisdiction, it should have simply said so and strike out the case of the plaintiffs as he had done, although erroneously. However, to demonstrate his prejudice against the Appellants, the learned trial Judge, went further to hold that the Appellants would not succeed no matter from what angle they pursued their case. This remark to say the least, was a complete negation of the rules of fair hearing for it is trite law that a court must consider the case put forward by a party no matter how stupid or weak it may seem particularly where evidence has not been elicited by the competing parties. See Ekpeto v. Wanogho (2004) 18 N. W.L.R (pt. 905) 394 at 411 & 414.

It would be recalled that on the said 14th of July, 2006, when the Appellants’ case was struck out after their counsel had informed the court that settlement was ongoing and that he be allowed to put his house in order as he was not ready to go on and having also applied for an adjournment, the court remarked “I have observed that all defence counsels (sic) objects to an adjournment, as it is becoming a pattern for the plaintiffs, since no cogent reason (sic) adduced for the adjournment. Accordingly, application for adjournment refused”

It is my humble view that the plaintiffs who had their factory machineries dismantled and carted away should be the ones to suffer if their case was not heard expeditiously, and accordingly, if they sought for an adjournment to enable them settle amicably out of court or put their house in order; the court ought to oblige them at least one more time and compensate the Respondents in costs in line with our current jurisprudential regime which de-emphasizes strict adherence to technical and mechanical justice. In any case, the sustenance of the preliminary objection and the eventual striking out of the Appellants’ case for want of jurisdiction betrayed the lower court’s predisposition not to give the Appellants a fair hearing thereby occasioning miscarriage of justice. Accordingly, Issue number 3 is resolved in favour of the Appellants.

This appeal therefore succeeds and the ruling of Honourable Justice Chukwura Nnamani of the Federal High Court, Ilorin Division, delivered on the 14th July, 2006, is hereby set aside.

I order that the case of the Appellants be sent back to the court below for re-hearing on the merits and parties shall bear their respective costs.

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Other Citations: (2009)LCN/3190(CA)