Nigeria Deposit Insurance Corporation (Liquidator Of Allied Bank Of Nigeria Plc.) V. Okem Enterprise Ltd. & Anor (2004)

LAWGLOBAL HUB Lead Judgment Report

UWAIFO, J.S.C. 

The Nigerian Deposit Insurance Corporation (the NDIC) is the liquidator of Allied Bank of Nigeria, PLc. It acts in that capacity in furtherance of its duties under section 28 of the Nigerian Deposit Insurance Corporation Act (the Act) (Cap. 301) Laws of the Federation of Nigeria, 1990 and under other laws, and as may be relevant under the Companies and Allied Matters Act, 1990 (the CAMA). The 1st respondent, Okem Enterprises Nigeria Limited, was said to be a valued customer of the said Allied Bank of Nigeria Plc. (the bank). It maintained various accounts with different branches of the bank.

The 1st respondent obtained credit facilities or loans from the bank. It is alleged that as at 31 January, 1999, the total amount outstanding against the 1st respondent was N284,109,459.59. The bank’s licence has been revoked by the Central Bank of Nigeria and this led to the NDIC being appointed the liquidator of the bank. The NDIC filed an application for the recovery of debt in the

Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Tribunal (the tribunal) Lagos Zone, on 29 March, 1999 against the 1st respondent and the 2nd – 6th respondents who, at all times material to the action, were the Directors of the 1st respondent. This was done by virtue of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994, (Decree No. 18 of 1994). That Decree was amended by Decree No. 62 of 1999, substituting the Federal High Court for the tribunal. This suit was accordingly taken over by the Federal High Court, Lagos after the inception of the present democratic dispensation, trial by tribunal having been discontinued.

On 16 April, 2000, the respondents filed a notice of objection to the jurisdiction of the Federal High Court to entertain the suit, and sought to have the suit struck out. There were four grounds relied on for the objection, namely, that:

1. The proviso to section 251(1)(d) of the Constitution of the Federal Republic of Nigeria, 1999 repeats the terms of section 230(1)(d) of the 1979 Constitution (as amended by Decree 107 of 1993) and did not vest in the Federal High Court the jurisdiction to determine causes and matters relating to transactions between an individual customer and his bank.
2. The reliefs sought in this suit are matters within the exclusive jurisdiction of the State High Court.
3. All claims made or intended to be made by the plaintiff are a nullity since they are all claims and matters over which the Federal High Court has no jurisdiction.
4. Accordingly, the Federal High Court is devoid of jurisdiction to entertain this suit and the same should therefore be struck out.

In a short but well considered ruling given on 18 December, 2000, Abutu, J. came to the conclusion that in causes and matters between a bank and its individual customer, the Federal High Court and the State High Courts have concurrent jurisdiction. The learned trial Judge overruled the objection.

An appeal was lodged by the defendants against that decision to the Court of Appeal, Lagos Division. Two issues were raised before that court for determination, namely:

“i) Whether the learned trial Judge was right in holding that the present state of the law is that the Federal High Court has concurrent jurisdiction with State High Courts to entertain disputes between banks and their individual customers and thereby assumed jurisdiction to entertain the suit herein.

(ii) Whether the learned trial Judge was correct in the decision that the Federal High Court is vested with jurisdiction to entertain the suit by virtue of the provisions of the Failed Banks Decree as amended by the Tribunals (Certain Consequential Amendments etc) Decree No. 62 of 1999.”

The Court of Appeal on 4 February, 2003, allowed the appeal.

It held that the Federal High Court has no jurisdiction to entertain causes and matters about individual customer and bank relationship.

This is an appeal against that decision. The appellant has set, down four issues for determination as follows:

“1. Whether the court below was right when it restricted itself to the provisions of Decree 107 of 1993 and section 251(1)(d) of the 1999 Constitution in considering whether the position of the law as regards the jurisdiction of the Federal High Court and State High Court in respect of transaction between individual customers and their bank had been altered since the time of the 1979 Constitution.

2. Whether 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 Decree No. 62 of 1999) are inconsistent with section 251(1)(d) of the 1999 of the Federal Republic of Nigeria and are therefore unconstitutional, null and void.
3. Whether the 1999 Constitution of the Federal Republic of Nigeria conferred exclusive jurisdiction in ‘disputes between an individual customer and his bank’ on the State High Courts.
4. Whether the suit instituted by the appellant against the respondents herein does not qualify as a suit involving ‘other fiscal measures’ (within the meaning of section 251(1)(d) of the 1999 Constitution) in which the Federal Government is interested as considered in previous decisions of this Honourable Court.”

The respondents have put the issues for determination rather slightly differently as follows:

“(i) Whether the court below restricted itself to the provisions of section 230(1)( d) of the 1979 Constitution as amended by Decree 107 of 1993 and section 251(1)(d) of the 1999 Constitution in considering whether the position of the law as regards the jurisdiction of the Federal High Court and State High Courts in respect of transactions between individual customers and their banks had been altered since the time of the 1979 Constitution.

2. Whether the court below was right in its decision that in disputes between an individual customer and his bank, only a State High Court has jurisdiction by virtue of the proviso to section 251(1)(d) of the 1999 Constitution.
3. Whether the court below was right in its decision that in so far as jurisdiction between an individual customer and his bank has been vested in State High Courts, sections 3(1) and 9 of the Failed Banks Decree which purports to vest jurisdiction on same matters in the Federal High Court are inconsistent with the proviso to section 251(1)(d) of the 1999 Constitution.
4. Whether the suit instituted by the appellant against the respondents herein qualified as a suit involving ‘other fiscal measures’ within the meaning of section 251(1)(d) of the 1999 Constitution.”

The respondents have put the issues for determination rather slightly differently as follows:

“(i) Whether the court below restricted itself to the provisions of section 230(1)( d) of the 1979 Constitution as amended by Decree 107 of 1993 and section 251(1)(d) of the 1999 Constitution in considering whether the position of the law as regards the jurisdiction of the Federal High Court and State High Courts in respect of transactions between individual customers and their banks had been altered since the time of the 1979 Constitution.

(ii) Whether the court below was right in its decision that in disputes between an individual customer and his bank, only a State High Court has jurisdiction by virtue of the proviso to section 251(1)(d) of the 1999 Constitution.

(iii) Whether the court below was right in its decision that in so far as jurisdiction between an individual customer and his bank has been vested in State High Courts, sections 3(1) and 9 of the Failed Banks Decree which purports to vest jurisdiction on same matters in the Federal High Court are inconsistent with the proviso to section 251(1)(d) of the 1999 Constitution.

(iv) Whether the suit instituted by the appellant against the respondents herein qualified as a suit involving ‘other fiscal measures’ within the meaning of section 251(1)(d) of the 1999 Constitution.

The respondents have, in any case, raised objection to ground 4 of the appellant’s grounds of appeal in the notice of appeal dated 16 April, 2003. I do not find it necessary to reproduce the said ground 4 but I shall later pronounce on the preliminary objection which concerns issue 4.

In my respectful view, the first three issues as stated by both parties may be considered as one issue thus:

“Whether the Court of Appeal was right in its interpretation of the proviso to section 251 (1)( d) of the 1999 Constitution and the effect to be given to Decree No. 18 of 1994 as amended by Decree No. 62 of 1999 in reaching the conclusion that the State High Courts have exclusive jurisdiction in disputes between an individual customer and his bank.”

I think it is possible that in the process of resolving this issue, arguments proffered by the parties in the consideration of the issues set down by them will be usefully taken into account as may be relevant and appropriate.

Before the court below embarked on the interpretation of section 251(1)(d) together with the proviso therein, it found it necessary to examine the jurisdiction of the Federal High Court prior to the coming into effect of the provisions of the said section 251 of the 1999 Constitution [section 230 of the 1979 Constitution as amended by Decree No. 107 of 1993]. This, in fact, involved a reference to section

“7(1) of the Federal Revenue Court Decree, 1973 (later to be known as the Federal High Court Act) whose provisions read thus:

“7(1) The Federal Revenue Court shall have and exercise jurisdiction in civil causes and matters –

(a) relating to the revenue of the government of the Federation in which the said government or any organ thereof or a person suing or being sued on behalf of the said government is a party;

(b) connected with or pertaining to -”

(i) the taxation of companies and of other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation,

(ii) customs and excise duties,

(iii) banking, foreign exchange, currency or other fiscal measures;

(c) arising from –

(i) the operation of the Companies Decree, 1968 or any other enactment regulating the operation of companies incorporated under the Companies Decree, 1968.

(ii) any enactment relating to copyright, patents, designs, trade marks and merchandise marks;

(iii) any enactment relating to copyright, patents, designs, trade marks and merchandise marks;

(d) of admiralty jurisdiction.”

After reproducing the above provisions, the court below cited the decision of this court in Jammal Steel Structures Ltd. v. African Continental Bank Ltd. (1973) 1 All NLR (Pt. 2) 208, and quoted a passage therefrom at page 220; (1973) ANLR (Green Cover) 852 at 862-863. Other passages were quoted from the said Jammal case and from Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296. The court then, per Oguntade, JCA, observed as follows: “The Supreme Court held that the Federal High Court has limited jurisdiction in the sense that it has only so much of the jurisdiction conferred expressly by ‘existing laws’ which are Acts of National Assembly under Section 230 subsection (2) and also under specific Section of the 1979 Constitution as well as such other jurisdiction as may be conferred on it by future enactments of the National Assembly under section 230 of the 1979 Constitution.

It is note-worthy that the case of Bronik Motors Ltd. (supra) was considered on the basis of the 1979 Constitution and the jurisdiction conferred thereunder on the Federal High Court. Under section 230( 1) of the 1979 Constitution, the jurisdiction of the Federal Revenue Court as granted under the Federal Revenue Court Decree, 1973 was preserved; and the Federal Revenue Court was re-christened as Federal High Court. Now the 1979 Constitution in relation to the jurisdiction of the Federal High Court was amended by Decree No. 107 of 1993. Section 230(1)(d) of Decree No. 107 of 1993 is in ipssissma (sic) verba with section 251(1)(d) of the 1999 Constitution reproduced above. It is correct to say that prior to the coming into force of Decree No. 107 of 1993, the position was that the Federal High Court had a limited jurisdiction and the State High Court an unlimited jurisdiction. It is also the position that civil causes and matters arising from any dispute between an individual customer and his bank in respect of transaction between the individual customer and the bank were under the jurisdiction of the State High Court. The question that then arises is Have Decree No. 107 of 1993 and section 251(1)(d) of the 1999 Constitution altered the position with regard to the jurisdiction of the Federal High Court and State High Court in such matters”

The learned Justice of Appeal discussed other more recent cases, particularly of the Court of Appeal [some of which I shall consider in the course of this judgment] and said inter alia as follows:

“It is my view that the Federal High Court only has exclusive jurisdiction in matters specifically stated under the paragraph in section 230(1)(d) before the proviso. To have stated that the Federal High Court has exclusive jurisdiction in the areas listed in section 230(1)(d) cannot without more mean that it has a concurrent jurisdiction in the area stated under the proviso.”

He went further to state at a later stage of the judgment:

“It seems to me that in so far as jurisdiction in dispute between an individual customer and his bank has been vested in State High Courts, sections 3(1) and 9 of the Failed Banks Decree (as amended) which vests jurisdiction on the same matters in the Federal High Court must be seen as inconsistent with section 251 (1)(d) of the 1999 Constitution. In that case, section 1(3) of the 1999 Constitution makes it void to the extent C of the inconsistency.”

Reference was made by Oguntade, JCA to the decision of the Court of Appeal, Lagos Division in N.D.I. C. v. Federal Mortgage Bank of Nigeria (1997) 2 NWLR (Pt. 490) 735 which had considered section 230(1)(d) of the 1979 Constitution as amended by Decree No. 107 of 1993 and pronounced that it gave the Federal High Court and State High Courts concurrent jurisdiction. But he came to the conclusion that that pronouncement was obiter because, in his understanding, the issues before the court did not call for a determination whether or not the Federal High Court and the State High Courts have concurrent jurisdiction in disputes between an individual customer and his bank. He set out the said issues. He referred to two other decisions of the Court of Appeal where a contrary view was expressed, and said:

“As was held by the Court of Appeal in the two cases, I hold the view that in the dispute between an individual customer and his bank only a State High Court has jurisdiction.

In holding this view, I bear in mind that before the promulgation of Decree No. 107 of 1993, the Federal High Court did not have jurisdiction in such matters. It seems to me that if it was the intention of the draftsman in Decree No. 107 of 1993) to grant the Federal High Court a jurisdiction which it did not previously enjoy, it would have done so in clear, direct and explicit language. It is my view that accordingly of the opinion that in section 7(1)(b)(iii)the Federal High Court only has exclusive jurisdiction in matters specifically stated under the paragraph in section 230( 1)(d) before the proviso. To have stated that the Federal High Court has exclusive jurisdiction in the areas listed in section 230(1)(d) cannot without more mean that it has a concurrent jurisdiction in the area stated under the proviso.”

Although the learned Justice proceeded to say:

“Appellant’s counsel has submitted that enactments conferring (exclusive) jurisdiction on the Federal High Court are existing laws which must be brought in conformity with the 1999 Constitution pursuant to section 315 of the 1999 Constitution. I entirely agree with him,” yet he reached the final conclusion to allow the appeal without conceding any right of jurisdiction to the Federal High Court to hear disputes between individual customer and his bank.

With due respect to the learned Justice of appeal, I have to say that he fell into fundamental misconceptions, namely, about (1) the proper import of the decisions in Jammal case and Bronik case which he discussed and relied on; (2) the correct interpretation of section 251(1)(d) of the 1999 Constitution which he attempted, having regard to the essential function of a proviso in an enactment; and (3) the effect of sections 1(3) and 315 of the 1999 Constitution on sections 3(1) and 9 of the Failed Banks Decree No. 18 of 1994 as amended by Decree No. 62 of 1999 in regard to the resolution of the issue of inconsistency. I think a combination of these vital matters was responsible for the grave error committed by the court below in reversing the decision of the Federal High Court per Abutu, J.

It is important to understand what Jammal case decided, why it was so decided and what arguments led to it. Before the Federal Revenue Court Decree No. 13 of 1973 which established the Federal Revenue Court was enacted, State High Courts had jurisdiction (and I shall explain presently what circumstances directly permitted that jurisdiction) over “banking” matters and other matters like admiralty, customs and excise duties, exchange and currency, taxation of companies etc. The operative Constitution then was the 1963 Constitution of the Federation. In particular, section 78(1) thereof gave Parliament the sole power to make laws for banks and banking as follows:

“78(1) Parliament may make laws for Nigeria or any part thereof with respect to banks and banking.”

However, subsection (2) of section 78 made provision thus

” (2) Nothing in this section shall preclude the legislature of a State from establishing an authority for the ‘purpose of carrying on (subject to and in compliance with any Act of Parliament for the time being in force and in particular any Act relating to banks and banking) the business of banking in Nigeria or elsewhere or from making such provision for the constitution of that authority and regulating the performance by that authority of its functions as is consistent with any Act of Parliament.”

Ordinarily in a federal system of government, Federal Courts would adjudicate over matters in which the Central Parliament has exclusive legislative competence. But because there were no Federal Courts before Decree No. 13 of 1973 to adjudicate in matters (of banks and banking etc) which were within the exclusive legislative competence of the Parliament, the High Courts of the then regions were given authority which enabled them to adjudicate in respect of matters within the exclusive legislative competence of the Parliament by virtue of section 3 of the Regional Courts (Federal Jurisdiction) Act (formerly Ordinance) (Cap. 177) Vol. V, Laws of the Federation of Nigeria and Lagos, 1958 which provided as follows:

“Where by the law of a region jurisdiction is conferred upon a High Court or a Magistrate’s Court for the hearing and determination of civil causes relating to matters with respect to which the Legislature of the region may make laws, and of appeals arising out of such causes, the court shall, except in so far as other provision is made by any law in force in the region, have the like jurisdiction with respect to the hearing and determination of civil causes relating to matters within the exclusive legislative competence of the Federal Legislature, and of appeals arising out of such

causes.”

Those were the circumstances I earlier hinted in which Regional High Courts were given jurisdiction [by the said Ordinance] to adjudicate in matters of banks and banking etc which, had there been Federal Courts, such Ordinance would have been most probably unwarranted.

On the promulgation of Decree No. 13 of 1973, section 7(1)(b)(iii) of the said Decree, which is germane to the present case, gave or “transferred” jurisdiction to the Federal Revenue Court in civil causes and matters connected with or pertaining to –

“banking, foreign exchange, currency or other fiscal measures.”

What really happened by the intervention of Decree No. 13 of 1973 was that the jurisdiction permitted to Regional High Courts relating to some of the matters within the exclusive legislative competence of the Federal Legislature was withdrawn and exclusive jurisdiction in those matters was then conferred on the Federal Revenue Court.

Those matters included the ones just enumerated above as contained in the provision of section 7(l)(b)(iii). But it is essential to note, because it is of great relevance, how the above provision is worded. It is also pertinent to consider the effect of what section 63(4) of the said Decree, [now section 64(4) of the Federal High Court Act, (Cap. 134) Laws of the Federation of Nigeria, 1990] provided that for the avoidance of doubt, the Regional Courts (Federal Jurisdiction) Act inter alia shall be construed with such modifications as may be necessary to bring it into conformity with the provisions of the Decree. The said Decree was thus the dominant statute with which the Regional Courts (Federal Jurisdiction) Act must be consistent through modifications as may be necessary in interpretation. This would seem to be of some moment as to what extent the Regional (or State) High Courts would be accommodated to adjudicate in respect of matters the said Decree had “transferred” jurisdiction to the Federal Revenue Court. The relevant matter of jurisdiction as it relates to the present case is “banking.” One may ask, which aspect of banking had then been given to the Federal Revenue Court exclusively from the wording of section 7(l)(b)(iii) of the Decree Is it “banking” in the broad sense or “banking” in its limited interpretation which became an issue in Jammal’s case

In the Jammal’s case, questions of real concern arose. The Federal Revenue Court had recently been conferred with jurisdiction in banking, a matter within the exclusive legislative competence of the Federal Legislature. The jurisdiction of the State High Courts in that same subject of banking, as I have said, had been directly derived from the Regional Courts (Federal Jurisdiction) Act. It was that same Act [and ‘other specified enactments, e.g. Admiralty Jurisdiction Act, 1962] which allowed Regional (State) High Courts to have jurisdiction over other Federal matters relating to revenue, taxation of companies, customs and excise, foreign exchange, currency, copyright, patents, designs, trade marks, Admiralty etc. That was when there was no Federal Court to adjudicate over those matters. Now, Decree No. 13 of 1973 transferred to, and conferred exclusive jurisdiction on, the Federal Revenue Court in respect of those matters; and section 63(4) of the said Decree would not permit State High Courts to exercise jurisdiction in respect of matters over which jurisdiction was now conferred on the Federal Revenue Court unless to the extent that the Regional Courts (Federal Jurisdiction) Act was B construed with necessary modifications to bring it in line with the Decree.

The question then arose whether there was still jurisdiction in the State High Courts in banking matters. This question had to be resolved in a suit then pending in the High Court of Lagos State, for “the balance due to the plaintiffs for an over-draft granted by the plaintiffs to the defendants at their Idumota Branch, Lagos, in the normal course of their business as bankers to the defendants and for money paid by the plaintiffs to the defendants as bankers at the latter’s request, which said sum the defendants have refused and/or neglected to pay in spite of repeated demands.” That was the case of the African Continental Bank Limited, as plaintiffs, against Jammal Steel Structures Limited, as defendants. It was a case of an individual customer and its bank relationship over an alleged debt owing from banking transactions which eventually got to the Supreme Court as the Jammal’s case (supra).

Chief Williams appeared for the defendants/appellants while Mr. Evan Enwerem appeared for the plaintiffs/respondents. Dr. N. B. Graham-Douglas, the Attorney-General of the Federation appeared as amicus curiae. Chief Williams’ submission, in short, was that since the action was filed after the Federal Revenue Court had assumed jurisdiction in banking matters and had started to work, the High Court of Lagos State no longer had any jurisdiction. Mr. Enwerem submitted that “banking” in the con in which it was used in section 7(1)(b )(iii) of the Decree could only be in reference to a transaction in which the Federal Government was interested and not a simple contractual relationship such as that between banker and customer. Dr. Graham-Douglas had also submitted in line with Chief Williams’ contention that “all banking transactions” were included within section 7(1)(b)(iii) with the result that the Lagos State High Court had ceased to have jurisdiction in the case brought against Jammal by the African Continental Bank.

Now, the interpretation whether section 7(1)(b)(iii) conferred exclusive jurisdiction on the Federal Revenue Court in all banking matters depended on the controlling effect of “or other fiscal measures” on the word “banking” in the said section 7(1)(b)(iii).

This court adopted the ejusdem generis rule of interpretation to reach the conclusion that the section placed a limited meaning on “banking” so that what it really connotes is “banking measures.” Banking measures were considered by this court in Jammal case to be policy matters of the Federal Government. That meant that it was only in respect of banking measures that the interest of the Federal Government would be affected and, therefore, the Federal Revenue Court would have exclusive jurisdiction only in causes or matters concerning banking measures. In the majority decision of this court delivered by Elias CJN, he observed inter alia at [(1973) 1All N.L.R. C (Pt.2); (1973) ANLR (Green Cover)] page 219; and pages 861-862 respectively that:

“After a very careful consideration of all arguments put before us, we think that the ejusdem generis rule applies to the interpretation of section 7(1)(b )(iii) with the result that the word ‘measures’ must be taken to qualify each of the preceding specifically enumerated subjects, including ‘banking’. This means that the natural and ordinary meaning to be given to the subsection’ is that it should be as ‘banking measures, foreign exchange measures, currency measures or other fiscal measures’ .”

And then, at pages 220-222; and pages 862-864 respectively, the learned Chief Justice observed further, and I shall quote him in extenso as follows inter alia:

“We are accordingly of the opinion that in section 7(1)(b)(iii) of the Decree, the word ‘other measures’ must be construed ejusdem generis with the words ‘banking’, ‘foreign exchange’, and ‘currency’. Thus construed, banking measures would cover such pieces of legislation, orders and regulations of the Federal Government as relate to banking – for example, the Banking Decree 1969, Central Bank of Nigeria Act (Cap. 30 of 1958 Edition), and ancillary enactments.

Where any dispute relates to breach of or non-compliance with certain formalities required by law for the lawful operations of banking business, it is a matter for the Federal Revenue Court because it involves a government measure and the government is a necessary party. Thus in Merchants Bank Ltd. v. Federal Minister of Finance (1961) All NLR 598 the question at issue was the revocation of the licence of the plaintiff bank by the defendant under the Banking Act, 1958 Edition. Such a case must go to the Federal Revenue Court. But where there is involved only a dispute between a bank and one or more of its customers in the ordinary course of banking business or transaction, as is the case with the subject-matter of the present case, because the government is not really interested in the outcome of the dispute, apart of course from its interest in the general maintenance of law and order. (sic) …

It was argued by the learned Attorney-General that the inclusion of subsection (d) in section 7(1) of the Decree in respect of admiralty case is an indication that the Federal Revenue Court was intended to have jurisdiction in other cases than revenue matters. This may be so, but we observe that the original jurisdiction in admiralty cases in respect of which the Supreme Court formerly had a monopoly was taken away from it and expressly given to the High Courts of the States by the Admiralty Jurisdiction Act, 1962, which is also referred to in section 63(4) of the Federal Revenue Court Decree, 1973. This last provision seems to say that, for the avoidance of doubt, the Admiralty Jurisdiction Act, 1962 ‘shall be construed with such modifications as may be necessary to bring it into conformity with the provisions of the Federal Revenue Court Decree. We do not understand this to mean that the Admiralty Jurisdiction Act, 1962 is thereby repealed, leaving jurisdiction in admiralty cases only to the Federal Revenue Court. It seems to us that only such causes or matters of admiralty as pertain to Federal Government vessel or property or revenue are within the jurisdiction of the Federal Revenue Court. If the true intention had been to take all admiralty jurisdiction out of the hand of all State High Courts, express provision would have been made for such a contingency in the Federal Revenue Court Decree …

We also think that another reason for giving section 7(1)(b)(iii) of the Decree the construction we have adopted above is that the true object and purpose of the Federal Revenue Court Decree, as can be gathered from the four corners of it, is the more expeditious despatch of revenue cases, particularly those relating to personal income tax, company tax, customs and excise duties, illegal currency deals, exchange control measures and the like, which the State High Courts were supposed to have been too tardy to dispose of especially in recent years. It does not seem to us that the legislative intention behind the Decree was to clutter up the new Revenue Court with ordinary cases involving banker-customer relationship, such as disputes in respect of an over-draft, or the negligent dishonouring of a customer’s cheques – all ‘banking transactions’ having nothing to do with Federal revenue concern. All the State High Courts and other appropriate courts must continue to exercise their jurisdiction in these and similar matters if the Federal Revenue Court must be allowed to concentrate on its essential revenue protection functions. In any case, we would require a clearer and more definitive provision than that in section 7(1)(b)(iii) of the Decree before we should be disposed to assent to the submission of both Chief Williams for the appellants and the, learned Attorney-General that jurisdiction in ‘all banking matters’ throughout the Federation and whatever their nature has in fact been exclusively vested in the Federal Revenue Court.”

It can be easily seen that the interpretation of “banking” in section 7(1)(b)(iii) of the Decree to mean “banking measures” denied it of the wide meaning of “banking” in its ordinary sense, as given in Black’s Law Dictionary, 6th edition, page 146 as follows:

“The business of banking, as defined by law and custom, consists in the issue of notes payable on demand intended to circulate as money when the banks are banks of issue; in receiving deposits payable on demand; in discounting commercial paper; making loans of money on collateral security; buying and selling bills of exchange; negotiating loans, and dealing in negotiable securities issued by the government, state and national, and municipal and other corporations.”

(Italics mine)

The implication of appreciating the meaning of the word “banking” in the ordinary sense, without its being restricted as a fiscal measure of the Federal Government by the ejusdem generis rule of interpretation as done by the majority decision in regard to section 7(1)(b)(iii) of the Decree, can be noted in the minority view expressed by Fatayi-Williams, JSC (later CJN). I find myself referring to his minority view merely to elicit the ordinary meaning of “banking”.

The learned Justice observed at pages 237-238; and page 877 respectively:

” … would interpret ‘banking’ in its ordinary sense and hold that the expression is wide enough to embrace every transaction coming within the legitimate business of a banker. The nature of the claim in the case in hand shows clearly that the transaction which formed the basis of it is that of banking. The learned trial Judge is also of the same view. It will be recalled that in the course of his judgment he said that he had ‘no difficulty whatsoever in coming to the view that the transaction in the case was a banking transaction.’ As all that we are concerned with is the meaning of the word ‘banking’ and as I have formed the view that the word stands alone, I am also of the view that the ejusdem generis rule does not apply.”

The learned Justice was of the view that the word “banking” stood uncontrolled by the phrase “fiscal measures”, and upon that wide meaning, held that the Federal Revenue Court had exclusive jurisdiction over banking in its broad meaning. It is no surprise that that view of Fatayi-Williams, JSC contrasts with the conclusion reached by the majority at page 224; and page 866 respectively thus:

“In the view we have taken of section 7(1)(b)(iii) of the Decree that only ‘banking measures’ are contemplated therein and not ‘all banking transactions’ whatsoever, we hold that the subject-matter of this appeal, which is a simple dispute between banker and customer in respect of an overdraft account, is within the jurisdiction of the High Court of Lagos State, and not the Federal Revenue Court.”

The majority decision in Jammal case was approved in Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296, where it was discussed at length in regard to the applicability of the ejusdem generis rule. Bronik case was decided after the Federal Revenue Court had been changed to the Federal High Court. Just as in the majority decision in Jammal case, where Elias, CJN made some relevant remarks, Nnamani, JSC who gave the leading judgment in Bronik case said at page 316:

“Having held that the majority judgment is right in construing section 7(1)(b )(iii) such that the Federal Revenue Court is restricted to its essentially revenue protection functions while the State High Courts deal with such matters in which no issue of the Revenue of the Government of the Federation arises, I would agree that there has to be express provision and a more definitive provision than section 7(1)(b)(iii) before one can accept the contention that ‘all banking matters’ must fall within the jurisdiction of the Federal High Court.”

It is plain to me that the court below missed the essence of the judgment of this court in the Jammal case. The ratio decidendi of it was the result of the canon of interpretation adopted in respect of section 7(1)(b)(iii) of the Decree. It construed “banking” as meaning “banking measures” by the application of the ejusdem generis rule. This was a restricted meaning bringing it within the Federal Government fiscal measures on banking – a pure concept of the Federal Government revenue policy considered in Jammal and Bronik to be in line with the Federal Revenue Court objective. While it gave exclusive jurisdiction in such fiscal measures to the Federal Revenue Court, the interpretation excluded banker and individual customer relationship. Matters and causes concerning that remained under the jurisdiction of State High Courts.

Now, it is well to recall that when the Federal Revenue Court Decree, 1973 was enacted, the relevant provision of the 1963 Constitution of the Federation on banking was section 78(1) which provided that parliament may make laws for Nigeria or any part thereof with respect to banks and banking. By virtue of Items 44 and 45 of the Exclusive Legislative List in the Schedule to the Constitution of the Federation and Part III of the said Schedule, the Federal Government had authority to provide for “the jurisdiction, powers, practice and procedure of courts of law” established to carry out the provisions of any enactment passed by virtue of that authority.

The Federal Revenue Court Decree, 1973 was enacted, in virtue of the relevant Laws and, of course, by the overriding authority of the Federal Military Government. However, even under section 230 of the 1979 Constitution before it was amended, the jurisdiction of the Federal High Court was simply thus:

“230.(1) Subject to the provisions of 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 jurisdiction

(a) in such matters connected with or pertaining to the revenue of the Government of the Federation as may be prescribed by the National Assembly; and

(b) in such other matters as may be prescribed as respects which the National Assembly has power to make laws.

(2) Notwithstanding subsection (1) of this section, where by law any court established before the date when this section comes into force is empowered to exercise jurisdiction for the hearing and determination of any of the matters to which subsection (1) of this section relates, such court shall as from the date when this section comes into force be restyled ‘Federal High Court’, and shall continue to have all the powers’ and exercise the jurisdiction conferred upon it by any Jaw.”

Section 7(1)(b)(iii) of Decree No. 13 of 1973 as interpreted and section 230(1)(a) of the 1979 Constitution as it then stood, admittedly, restricted the jurisdiction of the Federal High Court. Mr. Clarke, learned counsel for the respondents, referring to section 7(1)(b)(iii), and upon his own understanding of the Jammal case, has argued in his brief of argument that:

“Under the above provision, jurisdiction in civil causes and matters connected with or pertaining to banking was vested in the Federal High Court. Despite the fact that the provision did not expressly exclude disputes between an individual customer and his bank, this Honourable Court still held that it was not the legislative intent to vest the Federal High Court with jurisdiction in such matters. This was in Jammal Steel Structures Ltd. v. ACB (1973) 1 All NLR (Pt. 11) 208.”

(Italics mine)

The fatal flaw in this submission, as evident from the italicized portion, has been spotlighted in what I pointed out to be the ratio decidendi of Jammal’s case. Mr. Clarke either overlooked or misconceived the critical role played in the application of the ejusdem generis rule in Jammal case.

I need to draw attention here to section 236(1) of the 1979 Constitution. The provisions read: “236(1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a State shall have unlimited 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.”

These provisions were considered both in Bronik case and Savannah Bank of Nigeria Ltd. v. Pan Atlantic Shipping & Transport Agencies Ltd. (1987) 1 NWLR (Pt. 49) 212; (1987) 18 NSCC (Pt. 1) 67. Obviously, the said provisions made no distinction between matters within Federal legislative competence and States legislative competence. But the decision in the Savannah Bank case in the interpretation of section 236(1), as it tended to allow State High Courts to make an inroad into the jurisdiction of the Federal High Court, became quite controversial.

Chief Clarke has argued on behalf of the respondents in reliance on the Savannah Bank case that this court “held that section 8(1) of the Federal High Court Act, 1973 which gave the court exclusive jurisdiction in admiralty matters was inconsistent with section 236 of the 1979 Constitution under which the State High Court was vested with unlimited jurisdiction and was therefore void to the extent of its inconsistency with the Constitution.” That may well be so. But I think, with due respect, Chief Clarke would seem to fail to take cognisance of the fact that section 236 of the 1979 Constitution has now been replaced by section 272(1) of the 1999 Constitution with the word “unlimited” dropped from “jurisdiction”; and the said section 272(1) is made subject to section 251. Section 251 was meant to put an end to the controversy generated by the Savannah Bank case. This has created a lot of difference in the legal situation, rendering Chief Clarke’s said submission completely off the point and therefore untenable. I think Alhaji Ibrahim, SAN, on behalf of the appellant, made a significant point both in his brief and in his oral argument before this court. He said that from the various provisions of the law more recently conferring jurisdiction on the Federal High Court, that court has virtually gone beyond the original intention of making it just a revenue court; and that the decisions in Jammal case, Bronik case and Savannah Bank Case have to that extent spent their force. I am in complete agreement with that submission.

By the Constitution (Suspension and Modification) Decree No. 107 of 1993 (the Decree No. 107 of 1993), section 230 of the 1979 Constitution was amended to confer on the Federal High Court jurisdiction to hear and determine civil causes and matters arising from a long list of items. The jurisdiction was far beyond what was contemplated under the Federal Revenue Court Act, 1973. I am particular about section 230(1)(d) [in pari materia with section 251(1)(d) of the 1999 Constitution] which is relevant to this case. It provided as follows:

“230(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 or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from –

(e) 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, letter of credit, promissory note 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.”

Notable in this provision is the absence of any phrase which will necessitate the application of the ejusdem generis rule that prevailed in section 7(1)(b)(iii) of Decree No. 13 of 1973 when it was interpreted in the Jammal case. Exclusive jurisdiction has been given to the Federal High Court in all the items mentioned therein, including “banking” in its wide sense as must now be recognised since it is not limited to “banking measures”. Attention must, therefore, be drawn now to the effect which the proviso has on that exclusive jurisdiction in regard to banking in order that it would receive appropriate consideration. This is so because in the absence of that proviso, the jurisdiction ofthe State High Courts would be completely removed.

The said provision in section 251(1)(d) together with the proviso has been interpreted in some decisions of the Court of Appeal. It would appear that two conflicting views have been expressed in those cases as to which court has jurisdiction ‘as between the Federal High Court and the State High Courts in disputes between an individual customer and his bank. In the following cases it was held that it is the State High Courts which have exclusive jurisdiction: Bi Zee Bee Hotels Ltd. v. Allied Bank (Nig.) Ltd. (1996) 8 NWLR (Pt. 465) 176; N.I.D.B. v. Fembo (Nig.) Ltd. (1997) 2 NWLR (Pt. 489) 543; UBN Plc. v. Integrated Timber and Plywood Produces Ltd. (2000) 12 NWLR (Pt. 680) 99; Paico (Press & Books) Ltd. v. CBN (2001) 3 NWLR (Pt. 700) 347. On the other hand, in the following cases it was held that both the Federal High Court and the State High Courts have concurrent jurisdiction: NDIC v. Federal Mortgage Bank of Nigeria (1997) 2 NWLR (Pt. 490) 735; Afribank (Nig.) Plc. v. K.C.G. (Nig.) Ltd. (2001) 8 NWLR (Pt. 714) 87. This last case came to that view relying on the decision of the Supreme Court in Federal Mortgage Bank of Nigeria v. NDIC (1999) 2 NWLR (Pt. 591) 333 which heard the appeal from the Court of Appeal in NDIC v. Federal Mortgage Bank of Nigeria (supra).

In the said NDIC v. Federal Mortgage Bank of Nigeria (1997) 2 NWLR (Pt. 490) 735 in which I wrote the leading judgment in the Court of Appeal, the earlier Court of Appeal decisions, namely Bi Zee Hotels and Fembo Nigeria were not cited to the court. If they had been cited they would have been considered whether in fact they had decided the matter in issue by which the Court of Appeal ought to be bound. Mr. Clarke, on behalf of the respondent, submits that the pronouncement on the proviso in section 230(1)(d) of the 1979 Constitution as amended by Decree No. 107 of 1993 in the NDIC v. Federal Mortgage Bank of Nigeria (supra) was obiter. Mr. Clarke did not explain why he made that submission in his brief of argument in response to this appeal. I think, however, he simply echoed the view expressed by the court below. The court below held the view that the pronouncement I made in that case was an obiter dictum because, according to Oguntade, JCA, the issues before the Court of Appeal in that case “did not include a determination of whether or not the Federal High Court has a concurrent jurisdiction with a State High Court in a dispute between an individual customer and his bank.” He set out the three issues considered in that case, the first of which reads:

“Whether by virtue of section 230(1)(d) of the Constitution (Suspension and Modification) Decree No. 107 of 1993, a State High Court has any jurisdiction left to entertain in any dispute between two banks relating to banking transactions.” (Italics mine).

He observed and concluded thus: “As I stated earlier the issue did not properly arise in the Court of Appeal case N.D.I.C. v. F.M.B.N. The judicial authorities which remain binding on this court in the matter are Bi Zee Bee Hotels Ltd. v.Allied Bank (Nig.) Ltd. (supra) and NIDB v. Fembo (Nig.) Ltd. (supra). As was held by the Court of Appeal in the two cases I hold the view that in disputes between an individual customer and his bank only a State High Court has jurisdiction.”

Looking at the above issue, I should have thought it elementary that the nature of the dispute between the two banks and the respective capacities in which they acted in the banking transaction as revealed in the case would have to be ascertained in order to understand the phrase whether “a State High Court has any jurisdiction left to entertain any dispute between two banks relating to banking transactions,” so as to answer the issue arising from the arguments of counsel. In so deciding what jurisdiction was left to the State High Courts, one may come to whether it is exclusive or concurrent. But certainly, the question suggests that there was a dispute over the jurisdiction exercisable by the State High Court in the subject-matter. The action itself arose from a customer and bank relationship. A sum of money had been deposited by the Federal Mortgage Bank of Nigeria with a Commercial Bank (United Commerce Bank Limited) which later went into liquidation. An action had been commenced in the Lagos State High Court before the liquidator (NDIC) came in and objected at a stage that by virtue of section 230(1)(d) (as amended), only the Federal High Court had jurisdiction. The Lagos State High Court overruled the objection. The matter eventually got to the Court of Appeal and the issue in question was raised. In fact, the arguments of counsel for both parties raised the question as to the meaning of section 230(1)(d), and they were on diametrically opposite directions. One contended that the Federal High Court had exclusive jurisdiction; the other that the State High Courts had exclusive jurisdiction. The two parties were banks and the transaction was that one had lodged money with the other on interest basis. The arguments touched on whether that was a customer and bank relationship and the effect under section 230(1)(d) in regard to the dispute. This was recorded thus at page 754:

“But it appears a controversy still remains as to what the proviso to section 230(1)(d) means. Professor Olawoyin on behalf of the appellant argues that when one bank invests money in another bank upon interest and a dispute later ensues, any civil cause arising from that transaction (referred to by him as ‘inter-bank placements’) is in respect of an action’ between one bank and another which must be heard by the Federal High Court to the exclusion of a State High Court by virtue of section 230(1)(d) of Decree No. 107 of 1993.

On the other hand, Mr. Fagbohungbe on behalf of the respondent submits that the respondent was created by the Federal Mortgage Bank of Nigeria Decree No.7 of 1977 and not licensed under the Banks and Other Financial Institutions Decree No. 25 of 1991 (the BOFID). He says that under section 61 of the BOFID, ‘bank’ means a bank licensed under the said BOFID. He therefore boldly argues that the respondent is not a bank as defined under section 61 of the BOFID. He contends further that the respondent was merely an ‘investor’ with the United Commercial Bank Limited (now appellant) and not a ‘customer’, and that therefore the Lagos State High Court has jurisdiction to hear the action.”

The argument of Professor Olawoyin that when one bank invested money in another bank upon interest that amounted to ‘inter bank placements’ and did not constitute customer and bank relationship, was rejected. Also, the argument of Mr. Fagbohungbe that the Federal Mortgage Bank of Nigeria was not a bank but an investor and not a customer of the United Commercial Bank Limited, was similarly rejected. The facts that clearly and eventually emerged before the court were those of customer and bank relationship; and the question which arose therefrom was which court had jurisdiction. The issue that was raised whether a State High Court still has any jurisdiction left by virtue of the said section 230(1)(d) must, I think, be taken along with the argument of the appellant that the Federal High Court had exclusive jurisdiction and that of the respondent that it was the Lagos State High Court that had jurisdiction. I should have thought when that was done, one could not avoid taking a decision, upon a rational approach, to support one of the parties, or to rule against both and state where indeed jurisdiction lay, namely, in both courts as appropriate. But a convoluted approach the court below engaged in the present case is bound to miss the merit and inevitability of resolving that issue the way it was. I think, therefore, it is idle to reason or submit that the issue leading to the pronouncement that both the Federal High Court and the State High Courts have concurrent jurisdiction did not arise for consideration and decision in that judgment.

Before going to what the Supreme Court held on appeal in that case, let me return to whether the Court of Appeal had earlier considered section 230(1)(d) and given a decision on it. In Bi Zee Bee Hotels Ltd. (supra), although one of the issues was: “Assuming the appeal is competent whether the Federal High Court had jurisdiction to entertain the action which bothers (sic) on banker and customer relationship,” the Court of Appeal came to the conclusion that the appeal was incompetent and struck it out. It was thereafter that it was said at page 185 thus:

“Even if I consider the appeal on its merit, I would have dismissed it as lacking in merit.

I say this because having regard to the material placed before the learned trial Judge and the state of the law, that is the proviso to section 230(1)(d) set out above, I quite agree with the learned trial Judge that the jurisdiction of his court is ousted from determining the complaint of the appellant as formulated from the statement of claim.

The fanciful but misconceived arguments advanced by the counsel for the appellant in trying to draw a distinction between individual banker and non-individual banker as he put it is a non-starter and with all due respect, I do not buy it. This is because the states of the law as it is now makes or even suggest no such a distinction.”

It is obvious that section 230(1)(d) was not considered as part of the case before the court and a decision reached on it in the Bi Zee Bee Hotels case. What was said was a comment in passing after the appeal before the court had been struck out for being incompetent. That cannot constitute a binding authority.

As for Fembo Nigeria Ltd. (supra), only three issues were before the court, one of which was: “Whether or not the lower court has jurisdiction to adjudicate on the plaintiffs’ case.” The other two had no relevance remotely with section 230(1)(d). The contention as reported at page 563 of the report was in regard to whether a company whose shares are wholly owned by the Federal Government was a Federal Government agency under section 230(l)(q)(r) and (s). The pronouncement at page 564 on section 230(1)(d) was simply by the way in reliance on Bi Zee Bee Hotels Ltd. (supra). It had no bearing with the issue and no argument had been proffered on it. I would leave it at that. I have dealt with these cases because the respondents’ counsel strongly relied on them and the court below said it was bound by them. Obviously, those decisions, in any event, wrongly interpreted section 230(1)(d).

As I have already indicated, NDIC v. Federal Mortgage Bank of Nigeria (supra) came on appeal to this court as Federal Mortgage Bank of Nigeria v. NDIC (1999) 2 NWLR (Pt. 591) 333. What I said there in connection with section 230(1)(d) was copiously reproduced by Ogundare, JSC in his leading judgment at pages 361-362 when considering question 4 raised by the cross-appellant which was stated thus:

“4. Does Lagos State High Court share a concurrent jurisdiction with the Federal High Court in respect of banker-customer disputes/transactions as provided in the proviso to section 230(1)(d) of Decree. No. 107 of 1993”

This was obviously a direct question arising from issue 1 which had been raised in the court below and decided as already shown. I do not intend to reproduce all what Ogundare, JSC culled from my observation in that case in the court below. It is fairly long. But part of what I said, which the learned Justice set out and considered, reads thus:

“A bank is an individual legal entity. It can be an individual customer to any other person when not acting as a bank. So it is that it can be an individual customer to a bank in any particular transaction – depending on the type of transaction …. But if one bank as an individual is interested in earning interest from another bank through deposit, then the relationship of individual customer and bank is established as in the present case. Any dispute arising from that transaction is triable in the State High Court as well as in the Federal High Court.” (Italics mine)

This was after I had given full consideration to the effect of a proviso in an enactment and as it applied to section 230(1)(d) and the said case. Reacting to the above along with the argument of counsel, Ogundare, JSC at page 362 said:

“The respondent was unhappy with this conclusion and this forms the kernel of its cross-appeal. It is contended that by virtue of the provisions of section 230(1)(d) of the Constitution the High Court of Lagos State lacked competence and jurisdiction to entertain the action brought by the plaintiff against another bank, the defendant in this case. It is the further contention of the respondent that any action between one bank and another falls within the exclusive jurisdiction of the Federal High Court.

It is the contention of the plaintiff that the transaction between the plaintiff and the defendant leading to the action in the High Court of Lagos State was a dispute between an individual customer and his bank which is exempted from the exclusive jurisdiction of the Federal High Court by the proviso in section 230(1)(d). It is submitted that the plaintiff, in relation to that transaction, was an individual customer to the defendant. …

I have considered the arguments advanced by the parties. I agree entirely with the reasoning of the court below. With respect to the learned counsel for the respondent, I do not share the view that the proviso in section 230(1)(d) would not apply where in a customer/banker relationship the customer is a bank. To say that where there is a dispute between two banks, the forum for 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. The facts show that plaintiff, like any other customer, placed a short-term deposit with the defendant on agreed interest. After some roll-overs, plaintiff sought to retrieve its deposit and interest but defendant defaulted. 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.” (Italics mine)

In the face of the above, the court below, per Oguntade, JCA said:

“It is apparent that the Supreme Court did not discuss the issue of concurrent jurisdiction in relation to the matter” even though it was question 4 which the court fully considered.

The respondents’ counsel also cited and relied on this court’s decision in Trade Bank Plc. v. Benilux (Nig.) Ltd. (2003) 9 NWLR (Pt. 825) 416. There, the sole issue was whether the High Court of Lagos State is vested with jurisdiction to hear and determine the respondent’s claim against his banker for improperly paying a cheque marked “Not Negotiable” in favour of the plaintiffs to a third party. It was a case of conversion arising from customer and bank relationship. It was held that the High Court of Lagos State had jurisdiction to entertain the claim. The leading judgment by Mohammed, JSC was supported in this regard by all the other four learned Justices. But respondents’ counsel quoted the observation of Tobi, JSC in his supporting judgment in that case and relied on it to argue that the proviso in section 230(1)(d) is not merely to relax the exclusive jurisdiction conferred on the Federal High Court in matters stated in the proviso but that rather, “the purport is to wholly, totally and absolutely deprive the Federal High Court of jurisdiction in respect of matters coming thereunder.” At page 432, Tobi, JSC said:

“Section 230(1)(d) of the 1979 Constitution as amended by the Constitution (Suspension and Modification) Decree No. 107 of 1993 vests exclusive original jurisdiction on the Federal High Court ‘in respect of banking, banks, other financial institutions including any action between one bank and other, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letter of credit, promissory note and other fiscal measures. The provision can only be invoked on banking transactions in respect of bank inter se including the Central Bank. By the proviso, the subsection will not apply to any dispute between an individual customer and his bank in respect of transaction between an individual customer and a bank.”

What I understand was implied from the Judgment along with the observation of Tobi, JSC is that the Federal High Court has no exclusive jurisdiction in such a cause or matter because of the proviso. That is the true legal position. I cannot understand why learned counsel for the respondent relied on the said observation unless, as it seems, he clearly misconceived it.

I must now proceed formally to analyse section 251(1)(d) of the 1999 Constitution [same as section 230(1)(d) of the 1979 Constitution]. I have already set the provision out in this judgment. It provides that the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from –

“(d) 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,”

It will be seen that this provision is differently worded from the provision of section 7(1)(b)(iii) of the 1973 Decree which dealt with “banking, foreign exchange, currency or other fiscal measures.” It was this wording that led this court in Jammal case to interpret the word “banking” as used therein to mean “banking measures” under the ejusdem generis rule. It would appear that the law-giver reacted to that interpretation in the majority decision and also the opinion of the minority decision; and if I may say, as well as the concerns expressed in both Jammal case and Bronik case where specifically it was said in Jammal case that “We would require a clearer and more definitive provision than that in section 7(1)(b)(iii) of the Decree before submission of both Chief Williams for the appellants and the learned Attorney-General that jurisdiction in ‘all banking matters’ throughout the Federation and whatever their nature has in fact been exclusively vested in the Federal Revenue Court.”

It can be seen that section 251(1)(d) was meant to give the Federal High Court exclusive jurisdiction in “banking” in the wide sense to involve all banking transactions: see the definition given in the Black’s law Dictionary (supra). That conclusion cannot be resisted in view of the open-ended of that provision. But having contemplated conferring exclusive jurisdiction on the Federal High Court in all the items stipulated in paragraph (d), which by the language used was indeed conferred, the law-giver then introduced a proviso thus:

“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.”

In considering the effect of the proviso in question, the import of the exclusive jurisdiction conferred on the Federal High Court under section 251(1)(d) of the 1999 Constitution should not be lost sight of. The section begins with, “Notwithstanding anything to the contrary contained in this Constitution …” This takes account of the jurisdiction of the High Court of a State in section 272 (1) of the 1999 Constitution which says, “Subject to the provisions of section 251 and other provisions of the 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. This is not a provision conferring exclusive jurisdiction on the State High Courts. Section 251 (1)(d) confers exclusive jurisdiction on the Federal High Court in specified matters notwithstanding section 272(1).

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 other provision of the statute or other subordinate legislation so that the said section may 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.

It must therefore be understood that “subject to” introduces a condition, a restriction, a limitation, a proviso: see Oke v. Oke (1974) 1 All NLR (Pt. 1) 443 at 450. It subordinates the provisions of the subject section to the section empowered by reference thereto and which is intended not to be diminished by the subject section: see LSDPC v. Foreign Finance Corporation (1987) 1 NWLR (Pt. 50) 413 at461; Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622 at 655. The expression generally implies that what the section is subject to shall govern, control and prevail over what follows in that subject section of the enactment, so that it renders the provision to which it is subject to conditional upon compliance with or adherence to what is prescribed in the provision referred to: see Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 at 542,565,580; ldehen v. ldehen (1991) 6 NWLR (Pt. 198) 382 at 148; Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139 at 163-164.

Plainly, the proviso in question in section 251(1)(d), to put it in simple analysis, says that the Federal High Court will have exclusive jurisdiction in banking matters but when what is involved is individual customer and his bank transaction, the Federal High Court shall not have exclusive jurisdiction. Understandably, that was to recognise the jurisdiction the State High Courts had been exercising in such matters which section 272(1) of the Constitution impliedly preserves. The High Court of a State can only exercise jurisdiction in any aspect of such specified matters to the extent that the proviso in section 251 (1)( d) permits. The said proviso cannot be interpreted to have the effect of conferring exclusive jurisdiction on the State High Courts and completely taking away the jurisdiction of the Federal High Court to entertain causes and matters relating to individual customer and bank transactions as was erroneously decided by the court below and unsuccessfully argued before this court by Chief Clarke. Alhaji Ibrahim, SAN has proffered clear argument in the appellant’s brief in this regard.

I think I have sufficiently explained the rationale behind the interpretation adopted in Jammal case. I have also shown that the provision of section 251(1)(d) is not liable to the ejusdem generic rule of interpretation. The words of section 251(1)(d) are plain enough. It is the proviso that efforts must be made to understand. Therefore, one should be wary, in embarking on the interpretation of the proviso, not to be carried away by the history behind the jurisdiction of the Federal Revenue Court, later Federal High Court. The first approach is to try to construe the plain words of section 251 (1)(d). I must confess that because of the way the court below dealt with this matter and the arguments of counsel in this court, I was compelled to forage into the past to explain the decisions in Jammal case and Bronik case with much profit. That is why, although I could have done without that history in this particular case where I regard the language of section 251(1)( d) unambiguous, I consider it still valid that I must feel guided in this regard by the observation of Lord Heschell as to the proper approach when interpreting the plain words of a statute which he made in the House of Lords case of The Bank of England v. Vagliano Brothers (1891) AC 107 at pages 144-145 as follows:

“I think the proper course in the first instance is to examine the language of the statute and to ask what is the natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.”

The learned Law Lord then proceeded to make further expatiation thus:

“If a statute, intended to embody in a code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, by roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions …. I am of course far from asserting that resort may never be had to the previous state of the law for the purpose of aiding in the construction of the provisions of the code. If, for example, a provision be of doubtful import, such resort would be perfectly legitimate. Or, again, if in a code of the law of negotiable instruments words be found which have previously acquired a technical meaning, or been used in a sense other than their ordinary one, in relation to such instruments, the same interpretation might well be put upon them in the code …. What, however, I am venturing to insist upon is, that the first step taken should be to interpret the language of the statute, and that an appeal to earlier decisions can only be justified on some special ground.”

The Court of Appeal fell into the error of adopting the contrary approach. Instead of construing section 251(1)(d) from the words used in the first instance, it rather sought the help of earlier authorities in a manner that distorted a true interpretation necessary in this case. That was why I found myself compelled to revisit those authorities of Jammal and Bronik case to show that they were both misunderstood and misapplied by that court. As a general rule, a proviso has a limited operation in qualifying the ambit of the section to which it is related: see Llyods & Scottish Finance Ltd. v. Modern Cars & Caravans (Kingston) Ltd. (1964) 2 All ER 732 at 740. It follows that where a section with a proviso appended to it confers powers, it would be contrary to the ordinary operation of the proviso to give that section an effect which would neutralise those powers in a way that it goes beyond what compliance with the proviso itself renders necessary. The object of a proviso is normally to cut down or qualify or create exceptions to or relax in a defined sense the limitations imposed or powers conferred by a section of an enactment or document; or to exclude some possible ground of misinterpretation of its extent, or to modify the main part of a section of a statute to which it relates or to restrain its absoluteness or generality: see Re Tabrisky ex parte Board of Trade (1947) 2 All ER 182 at 183-184 per Lord Greene, M. R.; West Derby Union v. Metropolitan Life Assurance Co. (1897) AC 647 at 652 per Lord Watson. Therefore, the proper view of the proviso in section 251(1)(d) of the 1999 Constitution is that the main provision having used the language of exclusive jurisdiction, the proviso then relaxes that exclusiveness given to the Federal High Court therein in a situation in which the issue is a dispute between an individual customer and his bank in respect of transactions between the individual and the bank. In that regard, a State High Court will also have or continue to exercise jurisdiction and this it does concurrently with the Federal High Court. There should be no difficulty in appreciating this.

A further argument was made in connection with the provisions of sections 3(1)(a) and 9 of Decree No. 18 of 1994 and Part 1 of the Schedule to the Decree No. 62 of 1999 which amended Decree No. 18 of 1994. The court below received arguments in respect of those provisions and expressed its opinion thereon per Oguntade, JCA as follows:

“It seems to me that in so far as jurisdiction in disputes between individual customer and the bank has been vested in State High Courts, sections 3(1) and 9 of the Failed Banks Decree as amended which vests jurisdiction on the same matters in the Federal High Court must be inconsistent with section 251 (1)(d) of the 1999 Constitution makes it void to the extent of the inconsistency. Appellant’s counsel has submitted that enactments conferring jurisdiction on the Federal High Court are existing laws which must be brought in conformity with the 1999 Constitution pursuant to section 315 of the 1999 Constitution. I entirely agree with him.”

He did not indicate what the effect would be if the said sections 3(1) and 9 of the Failed Banks Decree as amended by Decree No. 62 of 1999 were to be brought in conformity with the 1999 Constitution pursuant to section 315. But what followed from the conclusion he arrived at to allow the appeal meant that he regarded those provisions void entirely because he said only the State High Courts have jurisdiction.

The appellant’s argument in this regard falls under issues 2 and 3 set down in the appellant’s brief. It was Decree No. 18 of 1994 under which the tribunals were set up. Sections 3(1)(a) and 9 provided thus:

“3(1) The tribunal shall have power to

(a) recover, in accordance with the provisions of this Decree, the debts owed to a failed bank, arising in the ordinary course of business and which remain outstanding as at the date the bank

is closed or declared a failed bank by the Central Bank of Nigeria.

9. Notwithstanding anything to the contrary in any law, deed, agreement or memorandum of understanding, the tribunal shall have exclusive jurisdiction to hear and determine all matters brought before it concerning the recovery from any person of any debt owed to a failed bank, which remains outstanding as at the date of closure of the business of the failed bank.”

Paragraph 7 of Part 1 of the Schedule to the Decree No. 62 of 1999 which amended Decree No. 18 of 1994 reads inter alia:

“For the word ‘tribunal’ wherever it appears in the Decree substitute the words ‘Federal High Court.’”

This enabled pending cases which the tribunals did not conclude before they were abolished to be taken over by the Federal High Court.

The question that arose in the court below was whether the foregoing provisions were inconsistent with section 251(1)(d) of the 1999 Constitution and therefore unconstitutional, null and void. The opinion of that court and the final decision it reached have been stated above. It is necessary to add that Oguntade, JCA had earlier said:

“I hold the view that in dispute between an individual customer and his bank only a State High Court has jurisdiction.” It is plain that from the whole tenor of the judgment of the court below, the above-stated pronouncements were made upon faulty premise and are inevitably wrong. One could recall how by the Regional Courts (Federation Jurisdiction) Act and related Acts jurisdiction was given to Regional High Courts (in the absence of a Federal Court) to adjudicate on matters within the exclusive competence of the Parliament. That arrangement was never intended to give exclusive jurisdiction to the Regional High Courts. It was, in my view, a desirable stopgap pending the establishment of a Federal Court. Decree No. 13 of 1973 which established the Federal Revenue Court conferred it with exclusive jurisdiction over some of the matters, but banking became one such matter which turned out to be contentious. Even after Decree No. 107 of 1993 which amended section 230 of the 1979 Constitution was promulgated, curious claims were still being made by some that the State High Courts have exclusive jurisdiction to entertain an aspect of banking which involves individual customer and bank relationship. There is no rational basis, as has been shown, for holding that under section 251 (1)(d) of the 1999 Constitution, State High Courts have exclusive jurisdiction to determine disputes between an individual customer and his bank in respect of transactions between the individual customer and the bank. It has been demonstrated that in such matters the Federal High Court and State High Courts have concurrent jurisdiction.

There can be no doubt that the intention of enacting Decree No. 18 of 1994 was to place all matters arising from failed banks, including individual customer and bank relationship, within the exclusive jurisdiction of the tribunals set up by the Federal Military Government. This was to ensure, I believe, that the “crusade” of the Federal Military Government to sanitize banking activities maintained the momentum it could monitor and assess. There is also no doubt that Decree No. 62 of 1999 was intended to keep it that way. It can be seen, therefore, that the Federal High Court by the said Decrees had been directly conferred with exclusive jurisdiction over all failed banks matters. But the ultimate position in this connection is that, although by Decree No. 18 of 1994 and Decree No. 62 of 1999, the Federal High Court was given exclusive jurisdiction in such matters, that provision of exclusivity has turned out to be inconsistent with the effect of the proviso to section 251(1)(d) when the 1999 Constitution came into force. That does not mean that the effect of the inconsistency was to deprive the Federal High Court of any jurisdiction at all in matters of customer and bank. By virtue of section 315 of the Constitution, those provisions in the said Decrees which are now regarded as existing Acts of the National Assembly, must be brought in line with the said proviso which extends jurisdiction to State High Courts. This must

be done with due reference to subsection (3) of section 1 of the Constitution which provides that:

“(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”

The relevant provision of section 315 is subsection (3)(d). it provides-

“(3) Nothing in this Constitution shall be construed as affecting the power of a court of law or any tribunal established by law to declare invalid any provision of an existing law on the ground of inconsistency with the provision of any other law, that is to say -”

(d) any provision of this Constitution.”

The extent of the inconsistency of Decree No. 18 of 1994 as amended by Decree No. 62 of 1999 with section 251 (1)( d) of the 1999 Constitution is that by giving the Federal High Court exclusive jurisdiction in the Failed Banks Recovery of Debts vis-a-vis customer and bank transactions, it is inconsistent with the proviso in paragraph (d) of section 251(1) which says the Federal High Court shall not have exclusive jurisdiction in such matters. The said Decree No. 18 of 1994 as amended by Decree No. 62 of 1999 will simply be read in the light that the Federal High Court shall have jurisdiction in matters of dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank. This will be consistent with the proviso in paragraph (d) of section 251 (1) of the 1999 Constitution. The court below was therefore in error to have declared sections 3(1) and 9 of Decree No. 18 of 1994 as amended by Decree No.62 of 1999 paragraph 7 of Part 1 of the Schedule thereto void.

I have considered the preliminary objection to ground 4 in the notice of appeal filed on 6 January, 2004 relied on by the appellant and issue 4 formulated therefrom. The said ground complains that the court below erred in law when it failed to consider the relevance of the legal status of the appellant, its statutory duties and its role in the management of failed banks. Issue 4 raised therefrom asks whether the suit instituted by the appellant against the respondents does not qualify as a suit involving “other fiscal measures” within the meaning of section 251(1)(d) in which the Federal Government is interested. The whole purpose was to urge this court to hold that the failed banks policy which became a major socio-economic issue under the auspices of the Federal Military Government are matters in which the NDIC, regarded as a Federal Government agency, has taken a decision and therefore should remain within the exclusive jurisdiction of the Federal High Court by virtue of section 251 (1)(r). I think there is merit in that objection. The said ground of appeal does not arise from the decision of the court below. The issue was never canvassed in that court and no leave was obtained to raise it as a new issue here. I accordingly hold that ground 4 is incompetent. I strike it out together with the said issue 4 formulated from it and the argument based on the said issue: see Honika Sawmill (Nig.) Ltd. v. Hoff (1994) 2 NWLR (Pt. 326) 252 at 26; Yusuf v. Union Bank of (Nig.) Ltd. (1996) 6 NWLR (Pt. 457) 632 at 642.

There is, however, much merit in the appeal and I allow it. I set aside the judgment of the court below together with the order for costs. I restore the decision of the Federal High Court which assumes jurisdiction to entertain this suit. I award N6,000.00 as costs in the court below and N10,000.00 as costs in this court in favour of the plaintiff/appellant.

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SC.92/2003