GTB PLC v. ASUP, FED. POLY., ADO-EKITI CHAPTER & ORS (2020)

GTB PLC v. ASUP, FED. POLY., ADO-EKITI CHAPTER & ORS

(2020)LCN/14026(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Thursday, March 19, 2020

CA/EK/06/2019

Before Our Lordships:

Fatima Omoro Akinbami Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Between

GUARANTY TRUST BANK PLC APPELANT(S)

And

1. ACADEMIC STAFF UNION OF POLYTECHNICS, FEDERAL POLYTECHNIC, ADO-EKITI CHAPTER 2. ENGINEER ADEOTI OLUSEGUN 3. MR. AKINRULI IFEDAYO JOSHUA 4. THE COUNCIL, FEDERAL POLYTECHNIC, ADO-EKITI RESPONDENT(S)

RATIO

JURISDICTION OF A COURT TO DETERMINE A MATTER

The usual question whenever the issue of jurisdiction is raised is when will a Court be competent to adjudicate on a matter? This question is answered in the locus classicus case of Madukolu & Ors v. Nkemdilim (1962) 1 ALL NLR 589 (1962) 2 SCNLR 341, which decision has become the guiding light in matters of jurisdiction or competence of a Court to adjudicate on a matter.
The Court held thus:
That a Court can only be competent when;
1. It is properly constituted as regards members and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction.
3. The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction, any defect in competence is fatal, for the proceedings are nullity however well conducted and decided; the defect is extrinsic to the adjudication. PER ELECHI, J.C.A.

WHETHER OR NOT ISSUES RAISED BY PARTIES MUST BE RESOLVED

It is a settled position of our law that all issues as raised by the parties should be resolved one way or the other. Resolution of issues include appraisal and findings on each of the issues formulated for determination. PER ELECHI, J.C.A.

PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Justice, Ekiti Judicial Division delivered on the 28th June 2017 by His lordship Hon. Justice A.K. Kowe wherein suit No: HAD/54/2016 was struck-out for lack of jurisdiction.

By a writ of summons and other accompanying processes, the appellant claim against the Respondent thus:
A. The sum of N23,942,668.58 (Twenty Three Million, Nine Hundred and Forty-Two Thousand, Six Hundred and Sixty-Eight Naira, Fifty-Eight Kobo) only being the sum due from and payable by the members of the 1st Defendant to the claimants at the close of business on 29th January, 2016 being balance of the term loan facility granted to the members of the 1st defendant or/about January, 2016 and guaranteed by the 4th Defendant but which sum the defendants have failed and/or refused to pay despite repeated demands.
B. Interest on the sum of N23,942,668.58 (Twenty Three Million, Nine Hundred and Forty-Two Thousand, Six Hundred and Sixty-Eight Naira, Fifty-Eight Kobo) only at the rate of 21% per annum from 30th January, 2016 up to the date of judgment

until the whole debt is finally liquidated.

Upon the Service of the processes on the 4th Respondent, the 4th Respondent briefed her Counsel, Perebo Pesta Monde Esq. entered a conditional appearance and simultaneously filed a preliminary objection challenging the jurisdiction of the Court as the 4th Respondent is a party being an agency of the Federal Government.

The appellant upon receipt of the 4th Respondent’s processes, filed a counter affidavit with a written address basically challenging the appearance of Perebo Pesta Monde Esq. for the 4th Respondent, alleging that one J.I. Adeyanju Esq. had earlier entered appearance for the 4th Respondent.

The 4th Respondent thereafter filed a further better affidavit on 9/12/2016 denying ever briefing the said J.I. Adeyanju Esq. to represent her and attached the letters written to Perebo Pesta Monde Esq. stating the fact that she only briefed Perebo Pesta Monde Esq. and nobody else and that the earlier appearance filed by the said J.I. Adeyanju Esq. was filed without the knowledge, authority or consent of the 4th Respondent hence amounted to a nullity.

The processes were all adopted on the 9/5/2017

by the counsel to the 4th Respondent while the Appellant counsel equally adopted the counter affidavit and her written address in opposition to the preliminary objection and ruling was reserved for the 21st June, 2017 and later delivered on the 28th June, 2017.

In a considered ruling on the 28th June, 2017 the Court declined jurisdiction and struck out the suit in its entirety.
Being dissatisfied with the ruling the appellant filed a notice of appeal upon two grounds on 30th June, 2017.

The Appellant postulated two issues for determination viz:
1. Whether learned trial Judge rightly interpreted the provisions of Section 251 Constitution of the Federal Republic of Nigeria, 1999 (as amended) in striking out the entire suit against all the Respondents. Ground 1 and 2 of the Grounds of Appeal.
2. Whether the learned trial Judge was not wrong not to have treated in his Ruling delivered on 25th June, 2017 the fundamental issue of the competence of the appearance of Perebo Monday Esq. and the processes particularly the Preliminary objection filed on 25th October, 2016 filed by him on behalf of the 4th Respondent. Ground 3 of the Grounds of Appeal.

ARGUMENTS: ISSUE 1.
In treating this issue, it is contended that in determining whether the trial judge rightly declined jurisdiction to try this matter, the Court has a duty to examine the claims of the Appellant. SeeLadoja v. INEC & Ors (2007) 40 WRN1 at 37/38. Also that a simple perusal of the Appellant claims shows that it is a simple contract between a Banker and its customers bordering on the recovery of the indebtedness of the 1st Respondent. What is more is that it is now fully settled that the added jurisdiction conferred on the Federal High Court does not extend to simple contract. See Sagay (SAN) in his book Nigerian Law of Contracts, Spectrum Law series, 2nd Edition published by Sweet & Maxwell where simple contract is defined as “all contracts other than formai contracts or contracts required to be under seal.” See Adeniyi v. Governing Council, Yaba College of Technology (2012) LPELR 8434 (CA), Ports & Cargo Handling Services Company Ltd & Ors V. Migfo Nig Ltd & Anor (2012) LPELR-9725 (SC), Adelekan V. Ecu-Line (2006) ALL FWLR (Pt 321) 1231 at 1226.

Therefore, it is beyond controversy that the action

before the lower Court arose from simple contract involving the agency of the Federal Government. On the basis of that it is submitted that in all actions involving the Federal Government or any of its agencies which arise from simple contract, the Federal High Court does not enjoy that exclusive jurisdiction vested by the provisions of Section 251(1) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended). SeeMr Vitalis E. Odunze v. National Assembly Commission & Ors (2010) LPELR-4544 (CA). The Court is therefore urged to hold that the action of the Appellant at the lower Court is not covered by the added jurisdiction conferred by Section 251(1) of the Constitution on the Federal High Court.

From the records, the 4th Respondent predicated his objection on Section 251(1) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) postulated a sole issue for the determination of the lower Court to wit: “whether this Honourable Court has jurisdiction to adjudicate on this matter against the 4th defendant being an agency of the Federal Government” and placed reliance on the authority ofNEPA V. Edegbero (2002) 18

NWLR (Pt. 798) which is not applicable to this case.

In determining the jurisdiction of the Federal High Court under Section 251 (1) of the 1999 Constitution (as amended), the Court must consider:
(i) The parties to the suit
(ii) The subject matter of the suit

The mere fact, that the Federal Government or any of its organs or agencies is a party to the suit is not enough to vest jurisdiction in the Federal High Court. The subject matter of the suit must fall within the subjects set out in Section 251 (d) of the Constitution. See Honourable Farouk Lawan v. Zenon Petroleum & Gas Ltd & Ors (2014) LPELR-23206 (CA), The Government of Kwara State & Ors v. Irepodun Block Manufacturing Company & Ors (2012) LPELR – 8532 (CA)

Learned Appellant Counsel contended that there is no doubt that the 4th Respondent is an agency of the Federal Government, the subject matter of this action as per the joint reading of the writ of summons and the statement of claim shows that it borders on simple banking contract. As a result, it is submitted that the subject matter does not fall within the provisions of Section 251 (1) (d) of the 1999 Constitution (as amended).

And so, the learned trial judge was in error to have declined jurisdiction to hear the matter. See Section 251 (1) (d) of the 1999 Nigeria Constitution (As amended)
The Court is then urged to hold that the matter is within the jurisdiction of the state and not Federal High Court.

Also submitted is that the trial judge was in greater error to have struck out the matter against the 1st and 2nd Respondents who are not agencies of the Federal Government. The 1st Respondent is the Ado-Ekiti Chapter of Senior Staff Association of Nigeria Polytechnics, a registered trade union.

The 2nd Respondent is also a natural person and the president of the Association. Assuming but not conceding that the trial judge rightly invoked Section 251 (1) of the 1999 Constitution (as amended) in declining jurisdiction to hear the matter, he was in grave error to have struck out the matter against all the Respondents. According to learned Counsel, the proper order the trial judge ought to have made was a striking out of the matter against the 3rd Respondent alone and not against all the Respondents. The Court is urged to resolve this issue in favour

of the Appellant.

ISSUE 2
In treating this issue, learned counsel referred extensively to the events that led to the untreated issues raised by the Appellant in the ruling of the lower Court delivered on 28th June, 2017. In response to service of the originating process, the respondents entered a “Conditional Appearance” on 29th August, 2016 through their Counsel J.I. Adeyanju Esq.

The 4th Respondent, having entered appearance, filed another “Conditional Memorandum of Appearance” on 25th October, 2016 through Perebo Pesta Monde Esq. It equally filed a Preliminary objection challenging the jurisdiction of the lower Court to hear the matter on the ground that it is a Federal Agency.

Prior the hearing of the Preliminary objection, the Respondents including the 4th Respondent also filed their “Statement of Defence and Counter-Claim and other accompany processes”. On 2nd December, 2016 through J.I. Adeyanju Esq. they equally filled an application to regularize the statement of Defence and counter/Claim filed out of time through J.I. Adeyanju Esq.

The Appellant, in response to the Preliminary Objection, filed a Written Address wherein it

raised the issue of “abuse of process” as well as the “competence of Perebo Pesta Monde Esq. to appear in the matter” in view of Rule 29 (2) of the Rules of Professional Conduct for Legal Practitioners, 2007 and Order 48 (1) and (2) of Ekiti State High Court (Civil Procedure) Rules, 2011.

Learned Appellant counsel contended that even though it is the right of a party to a Counsel of his choice is a constitutional right of the party, however the right of a party to change his counsel at any time during proceedings is subject to adequate notice not only to the Court but also to all parties in the matter. The requirement as to notice was clearly emphasised by the Jos Division of the Court of Appeal inHon. Farouk Mustapha & Ors. V. Alh. Babayo Garba Gamawa & Ors. (2011) LPELR-9226 (CA) where the Court held as follows:
“A litigant has every right to be represented by a counsel of his choice. In the event of change of counsel, leave of Court is not necessary, all that is required is to notify the Court.” See Akuma v. Ezikpe (2001) 8 NWLR (Pt 716) 547, Rule 29(1) & (2) of the Rules of Professional Conduct for Legal Practitioners (2007) made

pursuant to Legal Practitioner Act 1990 (As amended), Order 48(1)(2) of Ekiti State High (Civil Procedure) Rules 2011, Dr (Rev) Olapade Agoro v. Oba Adekunle Aromolaran (2011) LPELR-8906 (CA).

The Appellant had argued before the trial judge that the filling of another Conditional Memorandum of Appearance and preliminary object by Perebo Pesta Monde Esq. on 25th October, 2016 without a withdrawal of an earlier Conditional Memorandum of Appearance filed by J.I. Adeyanju Esq. on 29th August, 2016 and the statement of Defence and Counter – Claim filed by him on behalf of all Respondents on 2nd December, 2016 constitute a gross abuse of process of Court. The Appellant had further argued before the trial judge that the failure of the 4th Respondent to comply with Rule 29(2) of the Rules of Professional Conduct and Order 48(1) and (2) of the Rules of the lower Court had robbed it of the Jurisdiction to hear and determine the Preliminary objection.

Even after acknowledging the two issues raised by the Appellant, the trial judge still refused to treat the said issues in his ruling on the 28th June 2017 as a result of his conviction that the issue of

jurisdiction takes precedence over the said issues.

The learned trial judge said in his ruling as follows:
“Abuse of Court process is a term generally applied to a proceeding which is wanting in bonafides and is frivolous vexatious or oppressive. See the case of Ali v. Aibashir (2008) 3 NWLR (Pt. 1093) 94.
The issue of jurisdiction is fundamental and crucial. It is a threshold matter where a Court has no jurisdiction, any action taken will be a nullity, however well conducted.”

Appellant counsel submitted that the trial judge was in grave error for not considering the issues raised by the Appellant in his ruling. The said issues are a direct attack on the preliminary objection and their resolution one way or the other will pave way for the hearing of the preliminary objection and the appearance of Perebo Pesta Monde Esq.

It is settled proposition of our law that all issues as raised by the parties should be resolved one way or the other. Resolution of issues, includes appraisal and findings on each of the issues formulated for determination. By the Appellant’s Written Address filed on 31st October, 2016 in opposition to the 1st

Respondent’s Preliminary objection at page 124 to 130 of the Record of Appeal, they formulated the following issues for determination of the lower Court at page 127 of Record thus:
1. Whether “Conditional Memorandum of Appearance” filed on 25th October, 2016 by Perebo Pesta Monde Esq. on behalf of the 4th Defendant/objector is not a complete abuse of the process of this Honourable Court in the face of the existing appearance entered for the Objector by J.I. Adeyanju Esq. on 29th August, 2016.
2. Whether the Preliminary object and the supporting Affidavit filed on 25th October, 2016 by Perebo Pesta Monday Esq. without seeking and obtaining the leave of Court to change its Counsel is not incompetent.”

It is contended that it is imperative on the trial judge to resolve the said issues before considering whether it has Jurisdiction to hear the substantive suit or not. See Ogunyade v. Oshunkeye (2007) 7 NWLR (Pt. 1057), Ademola Popoola & Ors v. Attorney General, Kwara State & Ors (2011) LPELR-3608 (CA)

In conclusion, the Court is urged to hold that the failure of the trial judge to resolve all the issues in this matter has adversely

affected his ruling. The Court is also urged to resolve this issue in favour of the Appellants. The learned Appellants counsel then urged the Court to set aside the Ruling of the Lower Court delivered on the 28th June, 2017 by Honourable Justice A. K. Fowe, allow the appeal and order a trial before another judge of the High Court of Justice, Ado-Ekiti.

On their own part, 1st -3rd Respondents hereby adopted the two issues submitted for determination by the Appellant for resolution.

ARGUMENTS ON ISSUES FOR DETERMINATION
ISSUE ONE
Whether the learned trial Judge rightly interpreted the provisions of Section 251 Constitution of the Federal Republic of Nigeria, 1999 (As amended) in striking out the entire suit against all the Respondents. (Grounds 1 & 2 of the Grounds of Appeal.

It is elementary principle of law that it is the primary duty of Court to examine the totality of the claimant’s case as stated in the writ of summons together with the statement of claim so as to determine whether the Court has jurisdiction or not.

Jurisdiction is the power which a Court has to hear and determine a case or complaint made before it. The

fundamental nature of jurisdiction in the adjudication process can never be over emphasized.

Jurisdiction of a trial Court is determined by the plaintiffs claim as endorsed on the writ of summons and statement of claim.

In the instant case, the Appellant instituted the claim against the Respondents at the Ekiti State High Court of Justice sitting at Ado -Ekiti claiming from the Respondents the payment of the outstanding debts allegedly owned by the members of the 1st Respondents. On the other hand, the 1st Respondent denied owning the said amount and went further to counter-claim from the Appellant.

The case of the parties is a breach of contract between the parties, infact it is a case of banker/Customer relationship.

The action of the Appellant is based on a simple contract and as such is not included in those items enumerated under Section 251 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) as a result, the Federal High Court can not arrogate to itself a jurisdiction only exercisable by the trial Court or a State High Court on such simple contractual matters as the one which the Appellant tabled before the trial

Court. The lower Court was therefore wrong in holding that the trial Court lacked the jurisdiction to entertain the action, it surely has the requisite jurisdiction under Section 251 (1) of the 1999 Constitution (as Amended).

It is contended that in the instant case, the fact that the 4th Respondent by the loan agreement made between the Appellant and the 1st Respondent is not enough to clothe the Federal High Court with an exclusive jurisdiction to adjudicate on the matter.

From the records, the 1st Respondent in this case equally has a counter-claim against the Appellant and the facts that lead to the counter-claim emanates from the facts that form the cause of action between the Appellants and the Respondents.

Accordingly, it is submitted that the provision to Section 251(d) of the 1999 Constitution which states that this paragraph shall not apply to any dispute between an individual customer and the bank clearly empowers the learned trial judge to adjudicate on the matter.

Based on the submission and authorities cited in support of all our argument here above, the Appellate Court is urged to allow this appeal, set aside the Ruling of the

learned trial judge and remit this case back to the Chief Judge of Ekiti State for reassignment to another judge to be heard de-novo.

The 4th Respondent raised the following issues for the determination of this appeal:
a. Whether the act of the 4th Respondent in guaranteeing the loan granted to the 1st and 3rd Respondents qualifies her as a customer to the appellant so as to fall within the proviso to Section 251 (1) (d) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)? (Ground 1 of the Notice of appeal).
b. Whether the Court was right to strike out the appellant suit in its entirety having declined jurisdiction to entertain same? (Ground 2 of the Notice of Appeal).
c. Whether the failure of the Court to pronounce on the competence of Perebo Pesta Monde Esq. appearance for the 4th Respondent had occasioned a miscarriage of justice? (Ground 3 of the Notice of Appeal.)

ARGUMENT ON THE ISSUES RAISED ABOVE (ISSUE 1)
“Whether the act of the 4th Respondent in guaranteeing the loan granted to the 1st & 3rd Respondents qualifies her as a customer to the appellant so as to fall within the proviso to

Section 251(1) (d) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)? (Ground 1 of the Notice of Appeal).

To argue this issue, learned 4th Respondent Counsel submitted that Section 251(1) (a-s) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) gives exclusive jurisdiction to the Federal High Court in matters listed thereunder. See CBN & ORS V. OKOJIE (2015) MJSC (PT 1) 1 at 18, Section 251 (1) (a-s) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended). On the basis of the above, learned 4th Respondent counsel submitted that with the authority of CBN & ORS V. OKOJIE (Supra), all the listed conditions are present in the instant case as the claim/action is about banking, an agency of the Federal Government is a party and the claim is against the agency of the Federal Government for the recovery of the loan granted to the 1st-3rd Respondents.

According to learned counsel, disputes “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: provides that this paragraph shall not apply to any dispute between an individual customer and his bank respect of transactions between the individual customer and the bank” are exclusively conferred on the Federal High Court. See Section 251 (1) (d) CFRN ’99 (as amended) (emphasis supplied)

Therefore the act of the 4th Respondent in guaranteeing a loan transaction is an act of banking or connected with or pertaining to banking or other fiscal measures hence for a State High Court to have jurisdiction, it must be established by evidence or in the pleadings that the 4th Respondent is equally a customer to the appellant. However, that is not the case here. The 4th Respondent who is an agency of the Federal Government was sued to recover the purported loan granted to the 1st & 3rd Respondents in a banking transaction wherein she stood as the guarantor. See Section 251 (1) (d) CFRN 1999 (as amended).

It is submitted that the proviso to Section 251 (1) (d) CFRN (as amended) is very clear as to the status of banking transaction that do not

involve an individual customer of the bank. It is submitted that the act of granting loans to the 1st-3rd Respondents which was guaranteed by the 4th Respondent is a banking transaction which was done pursuant to the banking license of the appellant hence comes within the provision of Section 251(1) (d) CFRN 1999 (as amended) but not covered by the proviso of the said section as the 4th Respondent cannot be regarded as an individual customer of the appellant in this case.

The lower Court was therefore right in declining jurisdiction to adjudicate on the case hence the Court is urged to disturb the decision of the lower Court.

It is submitted that the act of guaranteeing a loan simpliciter does not bring the 3rd Respondent within the concept of being an individual customer of the appellant, although the act of guaranteeing the loan is a banking transaction hence Section 251 (1) (d) CFRN 1999 (as amended) confers exclusive jurisdiction on the Federal High Court to adjudicate on dispute arising in respect of such transactions. Therefore the Court is urged to resolve this issue in favour of the 4th Respondent and dismiss this appeal with substantial

cost.

It is submitted further that the appellant has erroneously argued that the banking transaction is a simple contract hence the State High Court would have jurisdiction.

A contract of guarantee cannot be termed a simple contract. It is a contract that must be under seal as consideration is not a requirement.

Also, it is submitted that all the authorities cited in support by the appellant stating that the banking transaction was a simple contract are inapplicable, distinguishable and a misapprehension of the law. Infact, the 4th Respondent’s seal was affixed to the banking transaction hence it is not a simple contract.
Issue 1 above is urged to be resolved in favour of the 4th Respondent and the appeal be dismissed with substantial cost.

ISSUE 2
Whether the Court was right to strike out the appellant suit in its entirety having declined jurisdiction to entertain same? (Ground 2 of the Notice of Appeal).
To argue this issue, it is submitted that once a Court has found out that it lacks jurisdiction, the proper order to make in the circumstances is to strike out the suit as was done in this case. Also the Court can not even on

its own strike out the name of the 4th Respondent and continue with the other Respondents as that would amount to amending the Appellant’s case suo moto by itself without an application which powers a Court does not possess. See Dangana v. Usman & 4 Ors (2012) 2 MJSC (PT. 111) 146 AT 677.
The Court is urged to resolve this issue in their favour and dismiss the appeal for lack of merit.

ISSUE 3
“Whether the failure to pronounce on the competence of Perebo Pesta Monde Esq appearance for the 4th Respondent had occasioned a miscarriage of justice (Ground 3 of the notice of appeal)
Under this issue, it is submitted that although it is expedient for a Court to pronounce on all issues placed before the Court by a litigant but failure to so do, is not necessarily fatal to the proceedings or amount to a denial of fair hearing particularly when the appellant failed to show that it amounted to a miscarriage of justice. See Banku v. Sermatech (Nig) Ltd (2016) ALL FWLR (Pt. 834) 179.

In addition, it is submitted that the appellant in reaction to the preliminary objection filed by the 4th respondent filed a counter affidavit raising the issue of

the competence of the appearance of Perebo Pesta Monde Esq. for the 4th Respondent when there was a purported appearances already filed by one J.I. Adeyanju Esq. on behalf of the 4th respondent.

The 4th Respondent filed a further and better affidavit in response to the appellant counter affidavit exhibiting the instruction letter to Perebo Pesta Monde Esq. to represent her and denying ever briefing the said J.I. Adeyanju Esq. and stating that the purported appearance filed by the said J.I. Adeyanju was filed without her consent, notice or authority.

It is his submission that the issues about counsel representation was fully explained and clearly placed before the Court but the lower Court considered the issue of jurisdiction of the Court as pivotal and more germane hence did not pronounce on the issue of appearance of counsel. However, from the materials placed before the Court, it was abundantly clear that the purported appearance filed by Mr. J.I. Adeyanju was filed without the knowledge, consent and authority of the 4th Respondent hence it is a nullity.

However, since the trial Court failed in its appraisal of the processes filed, this Court

(as an appellate Court) is in as good a position as the trial Court to reappraise the processes (particularly the evidences/documents) and make appropriate findings thereon from the printed record and/or documents placed before the Court instead of ordering a retrial. See FASHANU v. ADEKOYA (1974) 1 ALL NWLR (PT. 1) 32; Nneji v. Chukwu (1996) 10 NWLR (Pt. 478) 265. See also Jiwul v. Dimlong (2003) 9 NWLR (Pt. 824) 154 at 219.

On the non resolution of the issue of representation of the party by a counsel, it is submitted that such cannot lead to a miscarriage of justice as a litigant is at liberty to change his counsel at anytime by announcing it in Court. See NUR V. NRC (1996) 9 NWLR (Pt. 473) 419 at 493.

Also submitted is that the issue of compliance with Order 48 Rule 2 does not arise at all as MR. J.I. ADEYANJU was never engaged by the 4th Respondent to represent her at all. There is nothing on record to suggest otherwise hence the appearance filed by Mr. J.I. Adeyanju and any other process(es) filed by him for the 4th Respondent is a nullity.

Arguing further, it is submitted that before Order 48 Rule 2 is applied Order 48 Rule 1 would have been

in existence. In other words, before a party can apply to change a counsel, that party must have engaged that counsel in the first instance. This is not the case in the instance case. Mr J.I. Adeyanju was never engaged by the 4th Respondent at all and the appearance filed by the said Mr. J.I. Adeyanju was not to be knowledge/consent of the 4th Respondent.

Even Rule 29 of the Rules of Professional Conduct for Legal Practitioners 2007 did not apply at all as there was no counsel to change in the first instant. No counsel was engaged by the 4th Respondent except Perebo Pesta Monde Esq.
See Banku v. Sermatech Nig Ltd (2016) ALL FWLR (Pt. 834) 179 at 192.

Even in respect of the prevailing circumstance, the learned counsel submitted that the appellant has not shown how a miscarriage of justice has occurred by the failure of the lower Court to make any pronouncement as regards the representation of the 4th Respondent. Even Mr. J.I. Adeyanju having realized his mistakes did not file any process to contradict the further and better affidavit of the 4th Respondent as contained in the additional record of proceedings.

The Court is urged to resolve this issue in favour of the 4th Respondent, affirm the decision of the lower Court and to dismiss the appeal with substantial cost for lacking in merit.

RESOLUTION OF ISSUES
This appeal will be determined on its merit based on the resolution of the issues formulated by the Appellant.
1. Whether learned trial Judge rightly interpreted the provisions of Section 251 Constitution of the Federal Republic of Nigeria, 1999 (as amended) in striking out the entire suit against all the Respondents. Ground 1 and 2 of the Grounds of Appeal.
2. Whether the learned trial Judge was not wrong not to have treated in his Ruling delivered on 28th June, 2017 the fundamental issue of the competence of the appearance of Perebo Monday Esq. and the processes particularly the Preliminary objection filed on 25th October, 2016 filed by him on behalf of the 4th Respondent. Ground 3 of the Grounds of Appeal.

By a writ of summons and other accompanying processes, the Appellant claim against the Respondents as herein before stated. Upon the Service of the processes on the 4th Respondent, the 4th Respondent briefed his counsel Perebo Pesta Monde Esq.

Learned counsel P.P. Monde Esq immediately entered a conditional appearance and filed a preliminary objection challenging the jurisdiction of the Court to entertain the Appellants claims whilst the 4th Respondent is a party being an agency of the Federal Government, the Ekiti State High Court has no jurisdiction to adjudicate on the matter. The position of the 4th Respondent in this case is quite interesting, being a nominal party in the case.

The trial judge struck-out the suit after hearing argument on both sides on the ground that it has no jurisdiction to adjudicate on the case.

one reason or another; and
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction.
3. The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction, any defect in competence is fatal, for the proceedings are nullity however well conducted and decided; the defect is extrinsic to the adjudication.

The 4th Respondent challenged the competence of the trial Court on the ground of jurisdiction in that the act of the 4th Respondent in guaranteeing the loan granted to the 1st-3rd Respondents qualifies her as a customer to the Appellant so as to fall within the proviso of Section 251 (1) (d) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
In determining the jurisdiction of the Federal High Court under Section 251 (1) of the 1999 Constitution (as amended), the Court must consider:
(i) The parties to the suit.
(ii) The subject matter of the suit
The mere fact that the Federal Government or any of its organs or agencies is a party

to the suit is not enough to vest jurisdiction in the Federal High Court. The subject matter of the suit must fall within the subjects set out in Section 251(d) of the Constitution.
The 4th Respondent who is challenging the competence of the trial Court on the ground of jurisdiction relied heavily on the case of Nepa v. Edegbero (2002) 18 NWLR (Pt. 798) thereby holding that a party jurisdiction in relation to Section 251 of the 1999 Constitution means matters which are intended to be under the exclusive jurisdiction of the Federal High Court, simply put, therefore that Court is a Court of enumerated jurisdiction and a fortiori, its exclusive jurisdiction is, expressly tied to those items enumerated there under. As such in the exercise of its said exclusive jurisdiction, that Court (The Federal High Court) can only orbit within the universe of those enumerated issues and to others as may be conferred upon it by an act of the National Assembly. However, actions on simple contracts are not included in those items enumerated above, as such the Court cannot arrogate to itself a jurisdiction only exercisable by the trial Court or a State High Court on such

simple contractual matters as the one which the Appellant tabled before the trial Court.
In the instant case, the relationship between the parties are banker/customer relationship wherein the Appellant entered into a term loan agreement/contract with the Respondents when they disbursed money to the members of the 1st Respondent, as a personal loan which the 4th Respondent guaranteed.
The Appellant claimed that the 1st Respondent defaulted in the repayment mode agreed upon while the 1st Respondent denied that assertion and in return claimed that the Appellant had over charged the members of the 1st Respondent. This is the cause of action between the parties, when the parties were unable to reach an amicable resolution of the matter. Therefore the claim before the Ekiti State High Court involves claim for simple contract.
It appears that the days are gone when any issue involving the agency of the Federal Government must be litigated upon at the Federal High Court. The current trend these days is that not only must the parties be considered, the nature of the claim must be taken into consideration before approaching the Federal High Court whenever

the issues of jurisdiction is raised. Indeed, in the case of Wema Securities and Finance Plc v. Nigeria Agricultural Insurance Corporation (2015) 63 NSCQR 561 at 619, the Supreme Court held that, “the answer to the question, which the Appellant posted under this issue, therefore, is that the lower Courts position to the effect that the trial Court (and, by implication, State High Courts) cannot entertain any matter against the respondent (again, by implication, and agency of the Federal Government) irrespective of the subject matter would certainly been a fallacious proposition. This must be so in view of the avalanche of the decisions of this Court which have announced with Magisterial finality and robust certainty, the death kernel of above heady question that had, hitherto tasked the adversarial skills of the bar advocates and exacted the judicial patience of trial Courts since 1973, for forty two years… For all I have said so far, it is unarguable that the drafts person of the said Section 251 (1) could not have contemplated that the loan agreement which was facilitated by the Respondent’s letter of domiciliation would come under the jurisdiction of the

Federal High Court,…
The lower Court was therefore wrong in holding that the trial Court lacked the jurisdiction to entertain the action, it surely, has the requisite jurisdiction under Section 251 (1) of the 1999 Constitution as amended.
The action of the Appellant before the lower Court arose from a simple contract which is not covered by the added jurisdiction conferred by Section 251(1) of the Constitution of the Federal Courts contrary to the argument of the 4th Respondent.
The 4th Respondent who predicated his objection on Section 251(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) postulated a sole issue for the determination of the lower Court to wit “Whether this Honourable Court has jurisdiction to adjudicate on this matter against the 4th Defendant being an agency of the Federal Government.”
In justifying the said issue, the 4th Respondent, relying exclusively on the decision of the Supreme Court in Nepa v. Edegbero (2002) 18 NWLR (Pt. 798) had argued at page 122 line 26 to 30 of the Record thus:
“We submit that the 4th Defendant in this case is a Federal Agency

established by the Federal Polytechnic Act as unequivocally pleaded by the Claimant in paragraph 10 of the statement of Claim hence this Court being a State High Court lacked the requisite jurisdiction to adjudicate on this suit particularly with the 4th Defendant being a party. See Min. Works and Housing v. Shittu (2007) 16 NWLR (Pt 1060) 351 at 374.”
In accepting the above submission of the 4th Respondent, the learned trial Judge bought the above submission of the 4th Respondent when he held in his ruling as follows:
“Party jurisdiction in relation to Section 251 of the 1999 Constitution means where a party is an agency of the Federal Government, irrespective of whatever they may claim it is the Federal High Court that has Jurisdiction.”
Also the Supreme Court in the latter case of Onuorah v. Kaduna Refining & Petro-Chemical Company Limited (2005) 6 NWLR (Pt. 921) 393 sets out the test for determining the jurisdiction of the Federal High Court viz a viz the State High Court where issues under Section 251 (1) of the 1999 Constitution arise. That is by looking at the nature of the plaintiff’s claim and not at the parties as NEPA V. Edegbero

(Supra) seems to say in addition. In the ONUORAH CASE (Supra), The Supreme Court has held that in determining whether a Court has jurisdiction in a matter or not, the Court will examine or consider the nature of the plaintiff’s claim as disclosed in his Writ of Summons and Statement of claim. In the ONUORAH case, the action against the admitted Federal Government Agency is for breach of simple contract and it was held that the jurisdiction of the Federal High Court does not admit of matters of simple contracts between the parties.
Learned 4th Respondent counsel referred to the authority of CBN & Ors Okojie (2015) 6 MJSC (Pt. 1) 1 at 21 where the Supreme Court stated thus:
“Under Section 251 (1) (a) to (c ) of the Constitution;
The Federal High Court would have exclusive jurisdiction if and only if:
(a) The plaintiffs action is one of the causes of action under Section 251 (1) (a) to (s) of the Constitution.
(b) The parties or a party must be the Federal Government or an agency of the Federal Government.
(c) There must be a claim against the Federal Government or the agency of the Federal Government.”

It is on reliance of the above authority that the 4th Respondent submitted that the trial judge was right when it declined jurisdiction. There is no doubt that the 4th Respondent is an agency of the Federal Government. The cause of action of the Appellant is based on a single banking contract which can be deduced from a community reading of both the Writ of Summons and the statement of claim already before the Court. It does not therefore fall within the provisions of Section 251 (1) (d) of the Constitution of the Federal Republic of Nigeria (as amended) as strongly argued by the 4th Respondent. The trial Judge was therefore in error to have declined jurisdiction in view of the provisions of Section 251 (1) (d) of the 1999 Constitution (as amended) which provides as follows:
“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 concluding my consideration of this issue at hand, I am of the strong opinion that in view of the authorities above cited in support, the fact that the 4th Respondent guaranteeing the loan agreement made between the

Appellant and the 1st Respondent is not enough to clothe the Federal High Court with an exclusive jurisdiction to adjudicate on the matter.
Worthy of note is that the 1st Respondent in this case has a counter-claim against the Appellant and the facts that lead to the counter-claim emanates from the facts that form the cause of action between the Appellant and the Respondents. Therefore the proviso to Section 251 (d) of the 1999 Constitution which states that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transaction between the individual customer and the bank clearly empowers the learned trial judge to adjudicate on the matter.
Issue No. 1 is therefore resolved in favour of the Appellant.

Whether the learned trial judge was not wrong not to have treated in his Ruling delivered on 28th June, 2017 the fundamental issue of the competence of the appearance of Perebo Pesta Monday Esq. and the processes particularly the Preliminary Objection filed on 25th October, 2016 filed by him on behalf of the 4th Respondent.

Ground 3 of the Ground of Appeal.
The grievance of the Appellant here

is that after his presentation before the lower Court that the filing of another conditional Memorandum of Appearance and Preliminary Objection by Perebo Pesta Monde Esq. on 25th October, 2016 without a withdrawal of an earlier Conditional Memorandum of Appearance filed by J.I. Adeyanju Esq. on 29th August, 2016 and the statement of Defence and Counter-Claim filed by him on behalf of all the Respondents on 2nd December, 2016 constitute a gross abuse of process of Court. The Appellant had further argued before the trial Judge that the failure of the 4th Respondent to comply with Rule 29(2) of the Rules of Professional Conduct and Order 48(1) and (2) of the Rules of the lower Court had robbed it of the jurisdiction to hear and determine the preliminary objection.

Even after acknowledging the two issues raised, the trial judge nonetheless refused and or neglected to treat the two issue in his ruling delivered on the 28th April 2017 as a result of his conviction that the issue of jurisdiction takes precedent over the said issues.

It is a settled position of our law that all issues as raised by the parties should be resolved one way or the other.

Resolution of issues include appraisal and findings on each of the issues formulated for determination.
By the Appellant’s Written Address filed on 31st October, 2016 in opposition to the 1st Respondent’s Preliminary objection the Appellant formulated the following issues for determination of the lower Court.
“1. Whether the “Conditional Memorandum of Appearance” filed on 25th October, 2016 by Perebo Monde Esq. on behalf of the 4th Defendant/Object is not a complete abuse of the process of this Honourable Court in the face of the existing appearance entered for the objector by J.I. Adeyanju Esq. on 29th August, 2016.
2. Whether the Preliminary objection and the supporting Affidavit filed on 25th October, 2016 by Perebo Pesta Monday Esq. without seeking and obtaining the leave of Court to change its counsel is not incompetent”.
The trial judge, rather than resolve the said issues, went straight to determine the Preliminary objection on the flimsy ground that the issue of jurisdiction raised by the 1st Respondent is a threshold issue. It is not in doubt that the issue of jurisdiction is a threshold issue which can be raised at any stage of

proceedings even on appeal. But resolution of the issues raised by the Appellant challenging the competence of the objection will pave way for the hearing of the preliminary objection. The issues are direct attack on the preliminary objection and other process filed by Perebo Pesta Monde Esq. as to confer jurisdiction on the trial Judge to hear the Preliminary objection. See the pronouncement of Musdapher JSC in Ogunyade v. Oshunkeye (2007) NWLR (Pt. 1057) where he said inter-alia as follows:
“it is settled law that a judgment of Court must demonstrate in full, a dispassionate consideration of all the issues properly raised and must reflect on the result of such exercise. In other words, it must show a clear resolution of all issues that arose for decision in the case and end up with an ultimate verdict which flows logically from the facts as pleaded and found proved.” See Ademola Popoola & Ors v. Attorney General of Kwara State & Ors. (2011) LPELR-3608 (CA).
Even Counsel to the 4th Respondent P.P. Monde Esq admitted in his brief of argument page 9 paragraph 3.27 that the issue about counsel’s representation was fully explained and clearly

placed before the Court but that the lower Court only considered the issue of jurisdiction of the Court as pivotal and more germane hence he did not pronounce on the issue of appearance of counsel.
Learned 4th Respondent counsel had argued that a Court is not bound to consider all the issues properly before it as failure may not occasion a miscarriage of justice. See Banku v. Sermatech (Nig) Ltd (2016) ALL FWLR (Pt. 834) 179. On the basis of the above, this Court is invited (as an appellate Court) which is in a good position as the trial Court to reappraise the processes and make appropriate findings thereon instead of ordering a retrial. See Fashanu v. Adekoya (1974) 1 ALL NLR (Pt. 1) 32, Nneji v. Chukwu (1996) 10 NWLR (PT. 478) 265. In the case of Jiwul v. Dimlong (2003) 9 NWLR (PT. 824) 154 AT 219:
“The Court, as an appellant Court has the power, indeed the duty to consider and evaluate evidence and make up proper and necessary findings where the trial Court fails to consider and evaluate evidence adduced by the parties before him provided the issue of creditability of witness is not involved.”
This Court will not accept the invitation to

reappraise the processes (particularly the evidence/documents. However, in the event of looking at the other side, this Court will agree with the submission of the learned Appellant counsel submission that the issues were direct challenges on both the processes (the conditional memorandum of appearance and the preliminary objection) and the appearance of Perebo Pesta Monde Esq. who filed the processes as to confer jurisdiction on the trial judge to hear the preliminary objection the trial judge ought to have resolved the said issues before considering whether it has jurisdiction to hear the substantive suit or not.
This issue is therefore resolved in favour of the Appellants.

All the issues raised in this appeal are resolved in favour of the Appellant. The Appeal is highly meritorious and is hereby allowed. The Ruling of the lower Court delivered on 28th June 2017 delivered by Hon. Justice A.K. Fowe is set-aside.

However, in order to meet at the Justice of this suit on its merit, I hereby order that this suit be remitted back to the Chief Judge of Ekiti State for a trial of this suit by another Judge of the High Court of Ekiti State.
Appeal Allowed.

FATIMA OMORO AKINBAMI, J.C.A.: I have read in advance the lead judgment just delivered by my learned brother PAUL OBI ELECHI, JCA and I agree with his reasoning and conclusions.

I am also of the view that the issues should be resolved in favour of the Appellant. I also allow the appeal, and set aside the judgment of the lower Court.
I abide the consequential orders.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege and opportunity to read the draft of the lead judgment delivered by my learned brother, Paul Obi Elechi JCA and I agree with the reasoning and conclusion reached therein.
In consequence, I equally allow the appeal and abide by the orders made therein.
I make no order as to costs.

Appearances:

KANMI FALASE ESQ. For Appellant(s)

I. ADEYANJU ESQ., with him, T. AKINDEJOYE ESQ. – for 1st, 2nd and 3rd Respondent.

P. P. MONDE ESQ. – for 4th Respondent For Respondent(s)