JUDGEMENT DELIVERED BY STEPHEN JONAH ADAH, JSC –     SC/234/2016

SC/234/2016

JUDGEMENT DELIVERED BY STEPHEN JONAH ADAH, JSC

This is an appeal from the Benin Division of the lower court in Appeal No: CA/B/269/2011, wherein the lower court allowed the appeal in part. The lower court held that the Trial State High Court has jurisdiction to entertain the suit for some of the reliefs which the lower court mentioned as reliefs 4, 6, and 11.

The facts of this case are not much in contention.

The respondents (as plaintiffs) took out a Writ of Summons dated and filed 23rd June, 2008 against the appellants (as defendants). Two motions supported by identical affidavits, one ex parte, dated and filed 23/6/2008, and the other motion on notice was filed alongside the Writ of Summons. And on the next day, 24th June, 2008, the trial court heard and granted the motion ex parte and ordered an interim injunction by which it restrained the appellant from (1) “taking further or any step for the recovery of the disputed loan/interest and (2) restraining 2nd defendant from taking over, managing, receiving, disposing/selling, removing anything in respect of Plaintiffs’ properties” pending the hearing and the determination of the motion on notice. The trial court then adjourned the motion on notice with the same set of prayers to 15th July 2008.

It was at this stage that the appellants (as defendants) were served with the Writ of Summons together with the enrolled order of interim injunction. The appellants entered a conditional appearance and reacted by filing a motion on notice dated 10th July, 2009, supported by an affidavit.

Appellants therein prayed the trial court for an order for “leave and extension of time within which to apply for, and an order discharging the order of interim injunction and/or striking out of the respondent’s suit on the ground that the trial court lacked jurisdiction to entertain and/or adjudicate on the matter for the plaintiffs’ are in receivership.

The claim of the respondents as endorsed on the Writ of Summons are as follows:

1. A declaration that the loan transaction/contract between 1st plaintiff and 1st defendant was frustrated by natural causes, for which reason 1st defendant need not charge interest on same.
2. A declaration that the undated and unsigned tripartite legal mortgage purportedly made between 1st Plaintiff and 1st Defendant is oppressive, null and void, and of no effect whatsoever.
3. A declaration that 1st Defendant willfully and totally frustrated the contract between itself and Shell Petroleum Development Company of Nigeria Ltd, i.e contract No. W13196.
4. A declaration that the purported letter of 1st Defendant dated 31st, March 2008 allegedly appointed 2nd Defendant as the receiver/manager of 1st Plaintiff is null, void and of no effect whatsoever.
5. The sum of N10,000,000,000.00 (Ten billion naira) damages against the 1st Defendant for breach of contract when sometime in April, 2008 1st Defendant without any regard to its letter dated 20th February, 2007 and without notice to Plaintiffs, unlawfully appointed 2nd Defendant as receiver/manager to take over 1st Plaintiff.
6. The sum of N9,000,000.00 ( Nine million naira) being money collected by the 2nd defendant in the office of 1st plaintiff on the 16th of June 2008 when it unlawfully broke into the premises of first plaintiff with armed men.
7. The sum of N1,000,000,000.000 (One billion naira) being damages for trespass against the Defendants.
8. An order mandatory injunction compelling the 1st Defendant to produce the statement of account of 1st plaintiff in account No. 2050001833 with the 1st defendant.
9. An order of mandatory injunction compelling the 1st Defendant furnish 1st Plaintiff with all the particulars and interest charged on the loan and the total amount debited from the First Plaintiff’s said account, the subject matter of this suit.
10. An order of perpetual injunction restraining the Defendants from doing anything or taking any step or further step for the recovery of the disputed loan/interest charged thereof, the subject matter of this suit.
11. An order of perpetual injunction restraining the 2nd defendant, his agents, servants, privies, or whomsoever from taking over, managing, receiving, disposing/selling, doing anything or taking any step or further step in respect of the plaintiffs properties by virtue of the purported letter of 31st March, 2008.
12. And for any other relief(s) this Honourable court may deem suitable or fit to make in the circumstances.

The trial court took argument on the objection and dismissed it in a ruling delivered on the 14th August 2009. Appellants being dissatisfied, appealed the ruling. The Court of Appeal, in its judgment, partly held that only Claims Nos. 4, 6, and 11 can be heard and determined by the Federal High Court, while the other claims were comfortably within the jurisdiction of the Trial State High Court.

Aggrieved by this part of the judgment of the learned Justices of the Court of Appeal, the appellants have appealed to this court vide a Notice of Appeal dated on 5th February 2016.

There are five (5) grounds of appeal. From the five grounds of appeal, the appellants distilled a sole issue for determination. The respondents in the same mode, distilled a sole issue for determination of this appeal.

 The issue raised by the appellant is couched as follows:

 Whether having regard to all the reliefs claimed by the Plaintiffs/Respondents, has the High Court of Delta State jurisdiction to adjudicate on the Plaintiffs/Respondents’ action?

The respondents, in their own brief, raised the following sole issue for determination:

Whether the lower court was right in holding that the Trial State High Court had the jurisdiction to entertain the respondent’s claim except reliefs 4, 6, and 11.

A look at the issues distilled by the parties will show clearly that the issues are the same but differently expressed on record. The language used by the respondent in framing the sole issue is more pervading than that of the appellant. I adopt the version of the issue framed by the respondent for the determination of this appeal.

Issue for determination:

whether the lower court was right in holding that the Trial State High Court had the jurisdiction to entertain the respondent’s claim, except reliefs 4, 6, and 11.

In their Brief of Argument, the appellants canvassed on the sole issue that the lower court was wrong to imply that the High Court of Delta State can adjudicate on the action filed by the plaintiffs having regards to the nature of the claim. He canvassed that it is the plaintiffs’ claim that determines or confers jurisdiction on the court. He relied on the cases of  Adeyemi v. Opeyori (1976) 9 – 10 SC 31 @ 51; Anya v. Iyayi (1993) 7 NWLR (PT. 305) 290; Ag Kwara State v. Warah (1995) 7 NWLR (PT.405) 121, Onuorah v. Kaduna Refining & Petrochemical Co. Ltd (2005) All FWLR (PT. 156) 1356.

The Appellants also contended that the claims of the appellants other than claim numbers 4, 6, and 11 arose from the transaction of a customer and its banker. That in issues concerning Banker-Customer relationship, the State/FCT High Courts and the Federal High Courts have concurrent jurisdiction. He cited in support the case of NDIC v. Okem Enterprises Ltd (2004) All FWLR (Pt.210) 1176. That by Section 251(1) of the 1999 Constitution, as amended, the Federal High Court has concurrent jurisdiction with the State and FCT High Courts on matters of Banker-Customer relationship. He relied on paragraphs 33 to 37 of the affidavit in support of the motion of the plaintiff, which also annexed Exhibit “AA15” which is the letter of appointment of the 2nd appellant as receiver/manager. The notice of the publication of the said appointment was also annexed thereto.

 

The learned counsel cited Sections 387 to 400 of Companies and Allied Matter Act, 2004 to support the contention on the fact that the appointment of the receiver/manager is regulated by CAMA. He also relied on Section 251(1) of the 1999 Constitution to canvass that the State High Court do not have jurisdiction over the operation of Companies Act. He urged the Court to resolve the issue against the respondents and allow the appeal.

 

  In reaction, the learned counsel for the respondents submitted that the lower court was right and indeed fortified in law in her judgment in holding that the trial court had jurisdiction to entertain the claim of the respondents before the trial court except for reliefs for 4,5 and 11. Counsel argued that it is not the practice of the court to strike out an entire suit where the court finds that it has no jurisdiction to entertain certain claims within the action whilst having jurisdiction to entertain a substantial part of the Plaintiff’s/Claimant’s action before the court. He urged the court to observe that the appellants’ case before the trial court and the lower court was simply that in view of the fact that reliefs 4, 5, and 6 before the trial court are within the purview and jurisdiction of the Federal High Court being issues of receivership therefore, the State High Court had no jurisdiction to entertain the suit. That the contention of the appellants before this Court is a clear departure from the earlier contention canvassed before the trial court and the lower court. The learned counsel stated the position of the law, that a party to a case must be consistent in this case. He relied on the cases of Fasade v. Babalola (2003) FWLR (PT.151) 1707; Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (PT.109) 250; Kopek Const. Ltd v. Ekisola (2003) FWLR (PT.139) 1481 and Agu v. Ibekwe (1991) 3 NWLR (PT. 180) 385.

 

Learned counsel canvassed further, that there is nowhere in all the authorities cited by the appellants that this court held that the State High Court has no jurisdiction to entertain the claim of the respondents or that where an action such as this is commenced before the State High Court, because of the concurrent jurisdiction with the Federal High Court, the State High Court should decline jurisdiction by striking out the entire suit. More so, he contend the case of NDIC v. Okem Enterprises Ltd (supra), cited by the appellants supports the dismissal of the appeal as it is fortified the State High Court’s jurisdiction to entertain the claim of the respondents. He maintained that the absence of jurisdiction by a trial court to entertain part of the reliefs being sought by a claimant or a plaintiff does not deprive the trial court of the jurisdiction to entertain and determine the suit filed before the court.He relied on the case of The Registered Trustees of Living Christ Mission v. Aduba (2000) 3 NWLR (PT. 647) 14. That all the court needed to do when its competence to entertain some claims is raised and such contention is sustained, is to strike out the reliefs while it goes ahead to determine the arm of the case within her jurisdiction.

 

   On the whole, counsel urged the court to dismiss this appealing for lacking in merit.

The issue of jurisdiction of the Federal High Court vis-à-vis the State and the FCT High Courts has been a recurring issue. The jurisdiction of every court is created by the statute setting up the court and the constitution.

A party having a claim or a clause of action must have a clear- cut understanding as to which court is enthroned to hear his complaint. In the instant case, the appellants as plaintiffs had a clause with dual complexion.Some of the claims relate to the Banker-Customer dispute which the law has specifically consigned to any High Court and not exclusively to the Federal High Court to hear. Some are peculiar to the operation of the Companies and Allied Matters Acts (CAMA)  especially the issue of receivership. No court solicits for suitors, and no court can create its own jurisdiction. When a party takes its case to a court and the issue of jurisdiction is raised, the court must, of necessity, timeously, resolve it.

From the records before the Court, the trial court assumed jurisdiction in some of the claims and refused to exercise jurisdiction in some other claims. The respondents maintained that the trial court had jurisdiction. The lower court equally held that the trial court was right to undertake the hearing of the case while he partially declined jurisdiction over some three claims.

Jurisdiction is the foundation of adjudication. It has been stated time without number in many of our decisions that jurisdiction is the threshold and life wire that demands the authority of a court or tribunal to entertain a case before it. This is because, it is only when a court is imbued or conferred with the necessary jurisdiction by the constitution and law that it will have the judicial power and authority to entertain any cause or matter brought before it by the parties, it is trite that the absence of such requisite jurisdiction would render any proceedings purportedly conducted by a court an exercise in futility, thus null, void, and of no effect whatsoever, no matter how well conducted. See Adetayo v. Ademola (2010) LPELR-155 (SC); Adah v. NYSC (2004) 19 NSCQR 220; Utih v. Onoyivwe (1991) 1 SCNJ 25; Oloba v. Akereja (1988) 3 NWLR (PT. 84) 508; Ogunleye v. Jegede (1996) 6 NWLR (PT.199) 501; Okike v. LPDC (2005) 15 NWLR (PT. 949) 471; Enemuo v. Duru (2004) 9 NWLR (PT.877) 75; Okoye v. Okonkwo 2005) All FWLR (PT. 332) 1526; Uzoukwu v. Ezeonu II (1991) 6 NWLR (PT. 200) 708; Ehirim v. I.S.I.F.C (2008) 15 NWLR (PT.1111) 443 at 443 at 482 D-E.

The provision of Section 251(1) of the 1999 Constitution is to the effect that notwithstanding anything to the contrary contained therein, and in addition to such other jurisdiction as may be conferred there upon by an Act of the National Assembly, the Federal High Court shall exercise exclusive jurisdiction in civil causes and matters, listed in paragraphs (a) to (s) thereof. The causes and matters cognate to the instant cases are those of paragraphs (d) and (e). Those paragraphs provide as follows:

… (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; (e) arising from the operation of the Companies and Allied Matters Act or any other enactments replacing the Act or regulating the operation of the Companies in corporate under the Companies and Allied Matters Act.

It should be underlined that the Proviso to Paragraph (d) as captured above, removed the issue of disputes between a customer and his bank from the exclusive jurisdiction of the Federal High Court. That issue becomes available to any High Court of the FCT and the States to hear. This invariably means the issue of the disputed loan between the appellants and the respondents is well within the jurisdiction of both the Federal High Court and the Delta State High Court.
The other limb of the claim as per the Writ comprises of Reliefs 4, 6 and 11 which deal with receivership is found to be exclusively within the jurisdiction of the Federal High Court and this was agreed to be correct by two lower courts. It is obvious, therefore, that the trial court truly has no jurisdiction to entertain reliefs 4, 6 and 11. The paramount question to ask, therefore, is if this situation occurs, what is the solution or the way forward?

The trial court heard the case partially and refused to deal with the cause relating to receivership, but dealt with the claim relating to the issue of the loan dispute between the parties. The learned counsel for the appellants in paragraph 3.10 at page 9 of his brief did an expose of the law on this issue and he concluded that the trial court was wrong in its position. I am in total agreement with the summation of the learned counsel for the appellants that the Delta State High Court lacks the power to dress up the claims or release in a garb suitable for its jurisdiction. The Court cannot do a surgical operation on a party’s claim and separate the claims determinable by the State High Court from those by the Federal High Court. Therefore, insofar as the trial State High Court is not competent to entertain Claims Nos. 4, 6, and 11, the lower Court was truly in grave error in failing to disqualify the Trial Court from exercising jurisdiction in hearing and determining the respondents’ action as constituted.

 A court must be competent before hearing a matter under our laws. See Madukolu v. Nkemdilim (1962) All NLR 582.  Let me specifically say that it is well known that a court of law has no duty and indeed no power to expand the jurisdiction conferred on it. It only has a duty and indeed jurisdiction to expound the jurisdiction conferred on it. See Usibaifor & Anor. v. Usibaifor and Anor (2005) LPELR-3428(SC); Elelu-Habeeb & Anor v. Att. Gen. Fed. (2002) 13 NWLR (PT. 318) 423: Akande & Anor; Egbue v. Araka (2003) 9 MJSC 17 at 35. In this process of expounding the jurisdiction conferred on it, the courts have always emphasized the need to decline jurisdiction where the exercise of jurisdiction will involve issues with a court, which a court has no jurisdiction to hear and determine. See Odunsi v. Ojora (1961) All NLR 283, Nwafia v. Ububa (1966) NMLR 219 and Tukur v. Government of Gongola State (supra) at pages 39-40. Since it is evident that all the reliefs claimed by the respondent were not within the jurisdiction of the State High Court, the lower court did not have the competence to expand his jurisdiction by entertaining this action. In Oloba v. Akereja (1988) 3 NWLR (PT.84) 508 at 520, It was held that if a court or tribunal is not competent to entertain a matter or claim or suit, it is a waste of time for the court to embark on hearing and determining the suit, matter or claim. There is no justice in exercising jurisdiction where there is none. It is injustice to the law, the court, and the parties to do so. A court of law has no jurisdiction to expand an issue formulated by a party to suit the case he made out. That will be clashing with the court’s unbiased position in the judicial process.

In the instant case, it is instructive to note that at the time the Writ was taken out on the 23rd day of June 2008, the 1st appellant had, under Clause 8 of the Tripartite Legal Mortgage Agreement of the parties appointed a receiver/manager, who incidentally was made the 2nd defendant on the Writ. This fact definitely is a signpost indicative of the fact that the issue at stake is no longer the simple issue of Customer/Banker relationship. The appointment of a receiver/manager under the agreement not only raised the issues of recovery of the loan and receivership but the inter-play and operation of the Companies and Allied Matters Act(CAMA), which by Session 251(1)(e) is exclusively meant for the Federal High Court. The fact remains sacrosanct that parties are at liberty to enter into any agreement that best suits their convenience and aspiration for the enhancement of their respective businesses. It is in that spirit and within the context of that liberty that they engaged themselves in giving and taking loans. Whenever the parties are conclusively through with their arrangements and agreements, the law governing every limb of their agreement will now come into play to back up their rights and obligations. In the instant case, the parties in their loan agreement created under clause 8 of their tripartite agreement made provision for the appointment of a receiver/manager which formed the basis for the action of the first appellant in appointing the 2nd appellant as the receiver/manager. This appointment was published and registered as required by the Companies and Allied Matters Act, all before the respondents went before the trial High Court to institute this action. The respondent from all indications engaged in forum shopping for reasons best known to them. The Constitution of the Federal Republic of Nigeria 1999, expressly confer jurisdiction exclusively on the Federal High Court to hear and determine issues relating to receivership and the operation of the Companies and Allied Matters Act. The State High Court has no jurisdiction to entertain issues relating to receivership of companies. Consequently, neither the respondents nor the lower court can arrogate that jurisdiction to the trial Court in defiance of the Constitution. The law is well settled that where there is a court that has capacity or jurisdiction to settle all issues in a case, that court alone should be approached to hear the issues. There is no room for selective justice, and there must not be any rule for a fragmented justice, as was anticipated by the respondents in this case.

 

   I finally wish to re-echo here that this Court, per Obaseki JSC, had elaborately dealt with this kind of issue in Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517, which was also cited by the Council for the appellant in that case, Obaseki, JSC, at pages 548 para. H and 549 Paras A-D put it thus:

 

 Before concluding this judgment, I would observe that the learned justices of the Court of Appeal gave very sound reasons for allowing the defendant’s appeal to eat a respect of claims of Prayers 1 and 2. The same reasons were sufficient to have persuaded the Court of Appeal to make the same pronouncement for Prayers 3, 4, 5, and 6. If there is a court with jurisdiction to determine all the issues raised in a matter, including the principal issues, it is improper to approach a court that is competent to determine only some of the issues. The incompetence of the court to entertain and determine the principal question is enough to nullify the proceedings and judgments, as there is no room for half-judgments in any matter brought before the courts. In the process of expounding the jurisdiction conferred on them the courts have always emphasized the need to decline jurisdiction where its exercise will determine issues it has no jurisdiction to hear and determine”.

 

   On this authority, when the trial court saw that he could not determine reliefs 4, 6, and 11 of the claims of the respondents because it has no competence under the law to sit on it, it ought to have declined jurisdiction. The Federal High Court has the jurisdiction to try all the claims as set out by the respondents in their Writ of Summons. It is, therefore, the Federal High Court and not the Delta State High Court (trial court) that has jurisdiction to entertain this suit.

 

The sole issue is therefore resolved in favor of the appellants.

 

  From the foregoing, therefore, I come to the conclusion that this appeal has merit. It is hereby allowed.

Since the trial court had no jurisdiction, the case being incompetent is struck out. The judgment of the trial court in the Suit No: EHC/195/2008,  and that of the lower court in the Appeal No: CA/B/269/2011, delivered on the 10th November 2015 are hereby set aside.

Parties should bear their respective costs.

STEPHEN JONAH ADAH

JUSTICE, SUPREME COURT

 

COUNSEL:

Jim Okodaso Esq.,with

Uvie Oru Esq., for the Appellants.

Onome Egbon Esq., for the Respondents