KASHAMU v. UNION BANK (2020)

KASHAMU v. UNION BANK

(2020)LCN/14177(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, May 29, 2020

CA/L/117/2013

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

PRINCE BURUJI KASHAMU APPELANT(S)

And

UNION BANK OF NIGERIA PLC (Being The True And Lawful Attorney Of Banque International Du Benin) RESPONDENT(S)

RATIO

THE CARDINAL PRINCIPLE OF JURISDICTION

The law compels the Courts to handle issue of jurisdiction, which is numero uno in adjudication, first when raised in any proceedings, see Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193. I will obey this legal commandment so as not to insult the law.

Jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding, see Ajomale v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Untltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunnaya (1977) 1 IM SLR 300; Ebhodagbe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1.
A Court of law is invested with jurisdiction to hear a matter when: “1. it is properly constituted as regards numbers and qualifications of 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; and 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”, see Madukolu v. Nkemdilim (2006) 2 LC 2081961 NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Dairo v. UBN(2007) 16 NWLR (Pt. 1059) 164; Okereke v. Yar’Adua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387. The three ingredients must co-exist in order to infuse jurisdiction in a Court.

STATEMENT OF CLAIM AS THE BAROMETER USED BY THE COURT TO MEASURE THE PRESENCE OR ABSENCE OF JURISDICTION

Nota bene, the case-law has endorsed, in toto, a statement of claim as the major barometer to be used by the Court to measure the presence or absence of its jurisdiction, see Ikine v. Edjerode (2001) 18 NWLR (Pt. 745) 446; A.D.H. Ltd. v. A.T. Ltd. (2006) NWLR (Pt. 989) 635; Oni v. Cadbury (2016) 9 NWLR (Pt. 1516) 80; Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87; B.B. Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 206; Yar’adua v. Yandoma (2015) 4 NWLR (Pt. 1466) 213; Akpamgbo-Okadigbo v. Chidi (No. 2) (2015) 10 NWLR (Pt. 1466) 124; Isah v. INEC (supra); Lau v. PDP (supra); Azubuogu v. Oranezi (supra); Agi v. PDP (2017) 17 NWLR (Pt. 1595) 386; A.-G, Fed. v. A.-G., Anambra State (2018) 6 NWLR (Pt. 1615) 314; Roe Ltd. v. UNN (2018) 6 NWLR (Pt. 1616) 420; F.U.T., Minna v. Olutayo (2018) 7 NWLR (Pt. 1617) 176; A.- G., Lagos State v. Eko Hotels (2018) 7 NWLR (Pt. 1619) 518. In an action commenced by dint of originating summons, the affidavit in support serves as the statement of claim, see Uwazuruonye v. Gov., Imo State (2013) 8 NWLR (Pt. 1355) 28; PDP v. Ezeonwuka (2018) 3 NWLR (Pt. 1606) 187; Lau v. PDP (2018) 4 NWLR (Pt. 1608) 60; Owuru v. Adigwu (2018) 1 NWLR (Pt. 1599) 1; CBN v. Aribo (2018) 4 NWLR (Pt. 1608) 130. Relief too is one of the determinants of jurisdiction of Court, see Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) 382; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 114; PDP v. Oranezi (2018) 7 NWLR (Pt. 1618) 245; Gbileve v. Addingi (2014) 16 NWLR (Pt. 1433) 394. PER OGBUINYA, J.C.A.

WHETHER OR NOT THE COURT HAS THE LICENSE TO READ A DOCUMENT HOLISTICALLY TO REACH AND GANER RESULTS OF ITS CONTENT

Interestingly, the law grants to the Courts the unbridled licence to read a document holistically so as to reach and ganer harmonious results of its content, see Ojokolobo v. Alamu(1987) 3 NWLR (Pt. 61) 377/(1987) SCNJ 98; Unilife Dev. Co. Ltd. v. Adeshigbin (2001) 4 NWLR (Pt. 707) 482;ACB v. Apugo (2001) 5 NWLR (Pt. 707) 482; Mbani v. Bosi (2006) 11 NWLR (Pt. 991) 400; Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573; Agbareh v. Minra (2008) 2 NWLR (Pt. 1071) 378; Nigerian Army v. Aminu-Kano (2010) 5 NWLR (Pt. 1188) 429; BFI Group v. BPE (2012) 18 NWLR (Pt. 1332) 209; Julius Berger Nig. PLC. v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219. In addition, in construing a document, the Court is enjoined/mandated by law to apply the literal rule as a canon of interpretation, id est, to accord the words employed therein their ordinary grammatical meaning without any embellishment, see UBN v. Ozigi (1994) 3 NWLR (Pt. 333) 385, UBN Ltd. v. Sax (Nig.) Ltd. (1994) 8 NWLR (Pt. 361) 150; Enilolobo v. N.P.D.C. Ltd. (2019) 18 NWLR (Pt. 1703) 168. I will pay due obeisance to this legal injunction, in the interpretation of documents, in order not to offend the law. PER OGBUINYA, J.C.A.

A CONTRACT OF GUARANTEE

In the commercial firmament, a contract of guarantee, as exemplified by the guarantee act supra, is an independent and separate contract from a loan contract. In the sight of the law, where a principal debtor defaults in payment of a loan debt, the guarantor is subrogated into his/its financial position, id est, the guarantor becomes liable to pay, see A.I.D.C. v. N.L.N.G. Ltd. (2000) 4 NWLR (Pt. 653) 494: Auto Import v. Adebayo (2005) 19 NWLR (Pt. 959) 44; A.I.B. Ltd. v. I.D.S. Ltd. (2012) 17 NWLR (Pt. 1328) 1; Amede v. U.B.A. Plc (2018) 6 NWLR (Pt. 1614) 29; CBN v. Interstella Comm. Ltd. (2018) 7 NWLR (Pt. 1618) 294; Julius Berger (Nig.) Plc v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219. It follows, that the two agreements, even though they trace their fiscal paternity to the same transaction, live distinct life. The guarantee act is not tied to the credit agreement’s apron strings. This differential in entity, with due respect, punctures the learned appellant’s counsel’s seemingly scintillating contention on the point. It is disabled from birth. It cannot fly. PER OGBUINYA, J.C.A.

WHETHER OR NOT PARTIES AND COURTS ARE BOUND BY THE TERMS OF CONTRACTING PARTIES

It is trite, that the parties and Courts are bound by the terms of the contracting parties. In other words, the law does not allow either the parties or the Courts to add to or subtract from terms of the contract reached by way of consensus ad idem, see Best (Nig.) Ltd. v. B. H. (Nig.) Ltd. (supra); A-G, Rivers State v. A-G, Akwa Ibom State (2011), 8 NWLR (Pt. 1248) 31; JFS Inv. Ltd. v. Brawal Line Ltd. (2010) 19 NWLR (Pt.1225) 495; Alade v. Alic (Nig.) Ltd (2010) 19 NWLR (Pt. 1226) 111; A. ,G. Ferrero & Co. Ltd. v. H. C. (Nig.) Ltd (2011) 13 NWLR (Pt. 1265) 592; Nwaolisah v. Nwabufo (2011) 14 NWLR (Pt.1268) 600; UBN Plc v. Ajabule (2011) 18 NWLR (Pt. 1278); P.M. Ltd. v. The “M. v. Dancing Sister” (2012) 4 NWLR (Pt. 1289) 169; Uwah v. Akpabio (2014) 7 NWLR (Pt. 1407) 172; Idufueko v. Pfizer Products Ltd (2014) 12 NWLR (Pt.1420) 96; Lewis v. UBA Plc. (2016) 6 NWLR (Pt. 1508) 329; Cannitec Int’l Co. Ltd. v. Solel Bonech (Nig.) Ltd. (2017) 10 NWLR (Pt. 1572) 66; Oforishe v. N.G.C. Ltd. (2018) 2 NWLR (Pt. 1602) 35; Adedeji v. Obajimi (2018) 16 NWLR (Pt. 1644) 146; Okoro v. Okoro (supra); Julius Berger (Nig.) PLC v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219. This is the bane of the guarantee act. Nobody can fill the yawning gap in it in order to infuse jurisdiction in Beninoise Court. PER OGBUINYA, J.C.A.

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal is an offshoot of the decision of the High Court of Lagos State, held in Lagos (hereinafter addressed as “the Lower Court”), coram judice, K.A. Jose, J., in Suit No. LD/650/2010, delivered on 10th May, 2012. Before the Lower Court, the appellant and the respondent were the defendant and the claimant respectively.

The facts of the case, which metamorphosed into the appeal, are amendable to brevity and simplicity. The Banque International Du Benin (B.I.D.B.), a limited financial institution in Benin Republic, granted medium term loan facalities, in different sums, to the Societe d’ Egrenage Industrial De Cotonu du Benin (S.E.I.C.-B), a private limited company registered in Benin Republic, for construction of its coton ginning factory. The facilities were secured by, inter alia, the S.E.I.C.-B’s goodwill, factory and land. In addition, the appellant, the alter ego of S.E.I.C.-B, personally guaranteed the facilities in a personal guarantee agreement. The S.E.I.C.-B operates a current account with the B.I.D.B. The appellant, the personal guarantor of the

facilities, had relocated to Nigeria. The S.E.I.C.-B defaulted in the repayment of the loans despite repeated demands. As a result, the B.I.D.B appointed the respondent, a public limited financial institution in Nigeria, as its attorney to recover the outstanding facility, which stood at FCFA 5,669,584,755, from the appellant in Nigeria. Sequel to the donated power of attorney, the respondent beseeched the lower court, via a writ of summons filed on 1st April, 2010, and tabled against the appellant the following reliefs:
i. The sum of FCFA 5,669,584,755 (₦1,889,861,585) being amount in debit in the account of the Defendant’s company, S.E.I.C. BENIN (STE) with the Donor as at 31st December, 2004, in respect of which the Defendant is a Personal Guarantor.
ii. Interest and Bank charges in the sum of FCFA 4,209,666,681 (N1,403,222,227) which accrued from 31st December, 2004, to 31st December, 2009.
iii. Interest on the total owed sum at the rate of 17% per annum till judgment is delivered, and thereafter, a post judgment interest rate of 10% per annum until the final liquidation of the judgment debt by the Defendant.
iv. The cost of

instituting and prosecuting this action.

In reaction, the appellant joined issue with respondent and denied liability and counter-claimed for the ₦50M damages against the respondent. In the appellant’s statement of defence, he raised some points of law challenging the jurisdiction of the lower Court to hear the matter on diverse grounds, inter alia, lack of locus standi, wrong forum, statute-bar, no reasonable cause of action. Subsequently, the appellant, in an application filed on 23rd September, 2011, sought for an order of Court to set down the points of law for hearing. The application was granted. The points of law were duly argued via the motion of 16th December, 2011. In a considered ruling (decision) delivered on 10th May, 2012, found at pages 182 – 190 of the record, the lower Court dismissed the motion and declared that it had jurisdiction.

The appellant was dissatisfied with the decision. Hence, on 21st May, 2012, the appellant lodged a 2 – ground notice of appeal which is copied at pages 191 – 193 of the record. The appellant, with the leave of the Court, filed two additional grounds of appeal on 11th July, 2013

and deemed properly filed on 27th February, 2014. In the notice of appeal, the appellant prayed this Court for:
1. An order setting aside the ruling of the Honourable Court delivered on the 10th of May, 2012.
2. An order dismissing the suit against the appellant.

Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure for hearing of civil appeals in this Court. The appeal was heard on 10th March, 2020.

During its hearing, learned counsel for appellant, Ifeoma Esom, Esq., adopted the appellant’s brief of argument, filed on 11th July, 2013 and deemed properly filed on 23rd January, 2019, and appellant’s reply brief, filed on 1st February, 2019, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the respondent, Chief A.A. Aribisala, SAN, adopted the respondent’s brief of argument, filed on 28th May, 2015 and deemed properly filed on 23rd January, 2019, as forming his reactions against the appeal. He urged the court to dismiss it.

In appellant’s brief of argument, learned counsel

distilled two issues for determination to wit:
1. Whether in view of the pleadings in the claimant’s statement of claim, the claimant’s witness statement on oath and other front loaded documents forming the record of the Court for the purpose of the objection raised, the lower Court was not in error to postpone the finding on the regularity of the power of Attorney forming the basis of the standing of the claimant till later in the proceedings.
2. Whether the lower Court was right to discountenance the express wishes of the parties to the contract sought to be enforced in this action on the basis that it had not been established that there is a more suitable forum in which the case may be tried for the interests of all the parties and for the ends of justice.

In the respondent’s brief of argument, learned counsel crafted two issues for determination viz:
1. Whether the trial Court has the requisite jurisdiction to determine the liability or otherwise of the Appellant who is resident within the lower Court’s jurisdiction and has taken benefit from the Guarantee Agreement between Banque International Du Benin

(B.I.D.B.) and the Appellant?
2. Whether the trial Court can determine at the interlocutory stage the validity of the Power of Attorney dated 17th October, 2010, pursuant to which Banque International Du Benin appointed the Respondent as its Attorney to institute and prosecute this suit.

A close look at the two sets of issues shows that they are identical in substance. In fact, the respondent’s issues can be conveniently subsumed under the appellant’s. For this reason of sameness, I will decide the appeal on the issues formulated by the appellant; the undisputed owner of the appeal.

Arguments on the issues
Issue one
Learned counsel for the appellant submitted that the lower Court was wrong to defer the regularity or otherwise of the power of attorney till trial of the action. He noted that the facts about the power of attorney were not pleaded and any evidence to be led in support of it would go to no issue. He relied on Adeyeri v. Okobi (1997) 6 NWLR (Pt. 510) 534. He explained that there were no facts and no evidence about its due execution to warrant the deferment. He stated that parties and Court were bound by

pleadings. He cited Ekpechi v. Owhonda (1998) 3 NWLR (Pt. 543) 618. He maintained that there were absence of pleading and evidence except the power of attorney itself. He reasoned that due execution of power of attorney would be evidence of a solicitor, who prepared it, which was not front loaded. He said that the holding of the lower Court was in excess of the binding pleadings before it. He referred to Vinz Int’l (Nig.) Ltd. v. Morohundiya (2009) 11 NWLR (Pt. 1153) 562. He asserted that the respondent knew of the state of facts about the power of attorney, but failed to bring them before the Court because it was presumed it would not favour it. He referred to Section 146(d) (sic) of the Evidence Act, 2011; S.S BMBH v. T.D. Ind. Ltd. (2010) 11 NWLR (Pt. 1206) 589.

On behalf of the respondent, learned counsel contended that the lower Court was right because it had no power to determine the validity and value of the power of attorney at interlocutory stage. He posited that a document would not be said to be before a Court until tendered and admitted. He said that the power of attorney must be admitted by the lower Court before it could make

pronouncement on its authenticity. He stated the purpose of front loading the power of attorney. He postulated that proof of averment in pleadings would not be at interlocutory stage. He cited Udeagha v. Omegara (2010) 11 NWLR (Pt. 1204) 168. He insisted that the Court would not make observation that would prejudge substantive issue at interlocutory stage. He cited University Press Ltd. v. I.K. Martins (Nig.) Ltd. (2000) 4 NWLR (Pt. 654) 584.

On points of law, learned counsel for the appellant submitted that legal capacity to sue was linked to issue of jurisdiction over a matter in that where a party had no legal capacity to sue, the Court would be robbed of jurisdiction to hear it. He relied on Omega Bank Plc v. Govt. of Ekiti State (2007) ALL FWLR (Pt. 386) 658. He reasoned that being issue of jurisdiction, the issue of regularity of the power of attorney should be raised as a threshold matter. He cited Nwokafor v. Agumadu (2009) 3 NWLR (Pt. 1129) 638; SBACM v. Charzin Ind. Ltd. (2003 – 2007) 5 I.P.L.R. 203. He posited that the issue of jurisdiction, regularity of the power of attorney, could be raised at any stage of the proceeding – as a

threshold matter. He referred to Kotoye v. Saraki (1993) 5 NWLR (Pt. 296) 710; NDIC v. CBN (2002) 7 NWLR (Pt. 766) 272.

Issue two
Learned counsel for the appellant submitted that the facts and nature of the case made the lower Court forum non conveniens for the trial. He explained that the execution and performance of the contract were to be in Benin Republic hence the agreement was in French Language. He enumerated the conditions for determining a more suitable alternative forum as expounded by Prof. Olanrewaju Fagbohun in Addressing the issues of Foreign Jurisdiction published in www.rougandco.com. He persisted that the intention of the parties was that the Courts in Benin Republic would have jurisdiction over matters arising from the agreement, so that there was no question of the presumption that there was no alternative forum as the lower Court did. He said that the contract was entered into in accordance with the law and practice of Benin Republic. He referred to paragraph 3(xi) and (xii) of the statement of defence. He deduced from the averments that the parties in the credit agreement agreed that the applicable law would be the Beninoise law

and Courts in Benin would have jurisdiction. He cited Barsoun v. Clemessy Intl (1999) 12 NWLR (Pt. 632) 516. He took the view that the credit agreement and the guarantee act should be read together, in terms of forum chosen by the parties, since they were interwoven and latter encapsulated in the former. He relied on Royal Exchange Association Nig. Ltd. v. Aswani Textile Ind. Ltd. (1991) 2 NWLR (Pt. 176) 639. He concluded that Benin Court was the convenient forum for the determination of the case.

For the respondent, learned counsel argued that the loan agreement and guarantee agreement were distinct. He observed that the parties were bound by the terms in the guarantee agreement. He relied onA.I.B. Ltd. v. I.D.S. Ltd. (2012) 17 NWLR (Pt. 1328) 1. He added that the parties in the guarantee agreement did not agree that the Court in Benin Republic would have exclusive jurisdiction over disputes arising from it. He asserted that the guarantee agreement was not expressly incorporated in the loan agreement. He cited UBN Plc v. Soares (2012) 11 NWLR (Pt. 1312) 550. He opined that the appellant was not a privy to the loan agreement and would not take a

benefit from or enforce it for want of privity of contract. He referred to B.L.G.C. v. Bassey (2009) 9 NWLR (Pt. 1147) 473; UBN Plc v. Soares (supra). He claimed that the content of the guarantee agreement was clear and must be given its literal meaning. He relied on Adetoun Oladeji (Nig.) Ltd. v. N.B. Plc (2007) 5 NWLR (Pt. 1027) 415. He persisted that the guarantee agreement only contained the place of its execution as Benin Republic.

Learned counsel posited in the alternative that contracting parties would not by their agreement divest Court of jurisdiction. He cited Section 1(1), 270 and 6(1) and 6(6) of the Constitution, as amended; Sonnar (Nig.) Ltd. v. Patenveedri M.S. Norwind (1987) 4 NWLR (Pt. 66) 520. He stated that the appellant resided within Nigeria and so within the territorial jurisdiction of the lower Court. He referred to Order 2 Rule 3 of the High Court of Lagos State (Civil Procedure) Rules, 2012 (the High Court Rules); FBN Plc v. Abraham (2008) 18 NWLR (Pt. 1118) 172.

On points of law, learned appellant’s counsel contended that Section 6(6)(b) of the Constitution, as amended, a general provision was inapplicable and

incapable of excluding the rights of the contracting parties to choose the mode and venue for settlement of their disputes. He insisted that Section 6(6) of the Constitution, as amended, would not oust or exclude the jurisdiction of foreign Courts in appropriate cases. He cited Nika Fishing Co. Ltd. v. Laving Corp. (2008) 16 NWLR (Pt. 1114) 516.

Resolutions of the issues
In total loyalty to the injunction of the law, I will settle issue two first. The hub of the issue is plain. It centres on the jurisdiction of the lower Court to hear the suit which mothered this appeal. The law compels the Courts to handle issue of jurisdiction, which is numero uno in adjudication, first when raised in any proceedings, see Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193. I will obey this legal commandment so as not to insult the law.

Jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties

in any proceeding, see Ajomale v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Untltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunnaya (1977) 1 IM SLR 300; Ebhodagbe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1.
A Court of law is invested with jurisdiction to hear a matter when: “1. it is properly constituted as regards numbers and qualifications of 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; and 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”, see Madukolu v. Nkemdilim (2006) 2 LC 2081961 NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Dairo v. UBN(2007) 16 NWLR (Pt. 1059) 164; Okereke v. Yar’Adua (2008) 12

NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387. The three ingredients must co-exist in order to infuse jurisdiction in a Court.

Where a Court is drained of the jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be marooned in the intractable web of nullity, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (supra); Isah v. INEC (supra).
Nota bene, the case-law has endorsed, in toto, a statement of claim as the major barometer to be used by the Court to measure the presence or absence of its jurisdiction, see Ikine v. Edjerode (2001) 18 NWLR (Pt. 745) 446; A.D.H. Ltd. v. A.T. Ltd. (2006) NWLR (Pt. 989) 635; Oni v. Cadbury (2016) 9 NWLR (Pt. 1516) 80; Ladoja v. Ajimobi

(2016) 10 NWLR (Pt. 1519) 87; B.B. Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 206; Yar’adua v. Yandoma (2015) 4 NWLR (Pt. 1466) 213; Akpamgbo-Okadigbo v. Chidi (No. 2) (2015) 10 NWLR (Pt. 1466) 124; Isah v. INEC (supra); Lau v. PDP (supra); Azubuogu v. Oranezi (supra); Agi v. PDP (2017) 17 NWLR (Pt. 1595) 386; A.-G, Fed. v. A.-G., Anambra State (2018) 6 NWLR (Pt. 1615) 314; Roe Ltd. v. UNN (2018) 6 NWLR (Pt. 1616) 420; F.U.T., Minna v. Olutayo (2018) 7 NWLR (Pt. 1617) 176; A.- G., Lagos State v. Eko Hotels (2018) 7 NWLR (Pt. 1619) 518. In an action commenced by dint of originating summons, the affidavit in support serves as the statement of claim, see Uwazuruonye v. Gov., Imo State (2013) 8 NWLR (Pt. 1355) 28; PDP v. Ezeonwuka (2018) 3 NWLR (Pt. 1606) 187; Lau v. PDP (2018) 4 NWLR (Pt. 1608) 60; Owuru v. Adigwu (2018) 1 NWLR (Pt. 1599) 1; CBN v. Aribo (2018) 4 NWLR (Pt. 1608) 130. Relief too is one of the determinants of jurisdiction of Court, see Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) 382; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 114; PDP v. Oranezi (2018) 7 NWLR (Pt. 1618) 245; Gbileve v. Addingi (2014) 16 NWLR (Pt. 1433) 394.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Now, the gravamen of the appellant’s chief grievance, indeed his trump card, is that the parties in the guarantee act vested jurisdiction over the matter, which parented the appeal, in the Court in Republic of Benin. This obviously ignites the Court’s jurisdiction on the interpretation of the document.
Interestingly, the law grants to the Courts the unbridled licence to read a document holistically so as to reach and ganer harmonious results of its content, see Ojokolobo v. Alamu(1987) 3 NWLR (Pt. 61) 377/(1987) SCNJ 98; Unilife Dev. Co. Ltd. v. Adeshigbin (2001) 4 NWLR (Pt. 707) 482;ACB v. Apugo (2001) 5 NWLR (Pt. 707) 482; Mbani v. Bosi (2006) 11 NWLR (Pt. 991) 400; Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573; Agbareh v. Minra (2008) 2 NWLR (Pt. 1071) 378; Nigerian Army v. Aminu-Kano (2010) 5 NWLR (Pt. 1188) 429; BFI Group v. BPE (2012) 18 NWLR (Pt. 1332) 209; Julius Berger Nig. PLC. v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219. In addition, in construing a document, the Court is enjoined/mandated by law to apply the literal rule as a canon of interpretation, id est, to accord the words employed therein their ordinary

grammatical meaning without any embellishment, see UBN v. Ozigi (1994) 3 NWLR (Pt. 333) 385, UBN Ltd. v. Sax (Nig.) Ltd. (1994) 8 NWLR (Pt. 361) 150; Enilolobo v. N.P.D.C. Ltd. (2019) 18 NWLR (Pt. 1703) 168. I will pay due obeisance to this legal injunction, in the interpretation of documents, in order not to offend the law.
I have, in due fidelity to the desire of the law, consulted the record, the keystone of the appeal. The guarantee act, which is the cynosure of the issue, colonises pages 33 – 35 of the record. I have read it globally and with the finery of a tooth comb. Admirably, it is comprehension-friendly. Incidentally, I am unable to trace, even with the prying eagle-eye of a Court, where the document invested, expressly or impliedly, jurisdiction in the Beninoise Court over disputation germinating from it. In the twilight of the document, precisely at the foot of page 34, lines 30 and 31 of the cold record, it decreed: “For the execution of the presents; residence is elected at BANQUE INTERNATIONALE DU BENIN”. The appellant erected his stance on this clause. The operative word therein is: “execute”. In the eyes of

the law, the word “execute”, “a verb, is synonymous with accomplish, carry out, effect, perform, administer, enforce”, see Awolola v. Gov., Ekiti State (2019) 6 NWLR (Pt. 1668) 247 at 279, per Eko, JSC. It stems from this connotation, that the performance or enforcement of the terms of the contract, warehoused in the document, has to be accomplished in Republic of Benin – another sovereign state/country within the four walls of international law and conventions, see A.-G., Rivers State v. A.-G., Awka Ibom State (2011) 8 NWLR (Pt. 1248) 31. It is my humble view, that for document of parties to private contract to donate jurisdiction to a Court, the words used must be clear and explicit and devoid of woolliness and ambiguity. This document is deficit/deficient on precision in the investituture of jurisdiction on Beninoise Court.
In a spirited bid to castrate the decision of the lower Court, the appellant chastised it for not giving communal and correlative interpretation to the guarantee act and credit agreement. Put simply, he made an invitation to the doctrine of incorporation of documents by reference. In Iwuoha v. N.R.C.

(1997) 4 SCNJ 84 at 95, (1997) 4 NWLR (Pt. 500) 419 at 430 Kutigi, JSC, as he then was, proclaimed:
The principle or doctrine of incorporation by reference is one that is frequently applied in the construction of documents where from the documents or document produced by the parties, it is clear that some other evidence must have been in the contemplation of the parties. In such a case the documents put forward compels the Court to look beyond and ascertain precisely the other evidence which by necessary implication the parties must have had in their minds at the time of the contract.
To start with, the credit agreement was/is the loan contract agreement that houses the credit facilities granted to the S.E.I.C Benin (STE) by the B.I.D.B the donor/principal of the respondent. Its English version, the lingua franca of Nigeria Courts, monopolises pages 26 – 29 of the record. I have given a microscopic examination to the 15 – clause/paragraph agreement. I have not, even with binocular judicial lens of this Court, found where the agreement alluded to the guarantee act in order to take shelter in and enjoy the beneficent gains/benefit of the

doctrine of incorporation by reference. For a Court to employ the doctrine, there must be a modicum of nexus between the two documents. The want of connection between them constitutes a serious coup de grace in the appellant’s enticing supplication for the invocation of the doctrine.
That is not all. In the commercial firmament, a contract of guarantee, as exemplified by the guarantee act supra, is an independent and separate contract from a loan contract. In the sight of the law, where a principal debtor defaults in payment of a loan debt, the guarantor is subrogated into his/its financial position, id est, the guarantor becomes liable to pay, see A.I.D.C. v. N.L.N.G. Ltd. (2000) 4 NWLR (Pt. 653) 494: Auto Import v. Adebayo (2005) 19 NWLR (Pt. 959) 44; A.I.B. Ltd. v. I.D.S. Ltd. (2012) 17 NWLR (Pt. 1328) 1; Amede v. U.B.A. Plc (2018) 6 NWLR (Pt. 1614) 29; CBN v. Interstella Comm. Ltd. (2018) 7 NWLR (Pt. 1618) 294; Julius Berger (Nig.) Plc v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219. It follows, that the two agreements, even though they trace their fiscal paternity to the same transaction, live distinct life. The guarantee act is not tied to the

credit agreement’s apron strings. This differential in entity, with due respect, punctures the learned appellant’s counsel’s seemingly scintillating contention on the point. It is disabled from birth. It cannot fly.
My noble Lords, for the sake of completeness, the guarantee act, wherein the appellant serves as a surety for the loan, is a nude contract vis a vis the venue/forum for adjudication of disputes flowing from it. The feuding parties and the Courts are hamstrung in filling that existential lacunae. The reason is not far-fetched. It is trite, that the parties and Courts are bound by the terms of the contracting parties. In other words, the law does not allow either the parties or the Courts to add to or subtract from terms of the contract reached by way of consensus ad idem, see Best (Nig.) Ltd. v. B. H. (Nig.) Ltd. (supra); A-G, Rivers State v. A-G, Akwa Ibom State (2011), 8 NWLR (Pt. 1248) 31; JFS Inv. Ltd. v. Brawal Line Ltd. (2010) 19 NWLR (Pt.1225) 495; Alade v. Alic (Nig.) Ltd (2010) 19 NWLR (Pt. 1226) 111; A. ,G. Ferrero & Co. Ltd. v. H. C. (Nig.) Ltd (2011) 13 NWLR (Pt. 1265) 592; Nwaolisah v. Nwabufo (2011) 14

NWLR (Pt.1268) 600; UBN Plc v. Ajabule (2011) 18 NWLR (Pt. 1278); P.M. Ltd. v. The “M. v. Dancing Sister” (2012) 4 NWLR (Pt. 1289) 169; Uwah v. Akpabio (2014) 7 NWLR (Pt. 1407) 172; Idufueko v. Pfizer Products Ltd (2014) 12 NWLR (Pt.1420) 96; Lewis v. UBA Plc. (2016) 6 NWLR (Pt. 1508) 329; Cannitec Int’l Co. Ltd. v. Solel Bonech (Nig.) Ltd. (2017) 10 NWLR (Pt. 1572) 66; Oforishe v. N.G.C. Ltd. (2018) 2 NWLR (Pt. 1602) 35; Adedeji v. Obajimi (2018) 16 NWLR (Pt. 1644) 146; Okoro v. Okoro (supra); Julius Berger (Nig.) PLC v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219. This is the bane of the guarantee act. Nobody can fill the yawning gap in it in order to infuse jurisdiction in Beninoise Court.
The lower Court, at page 189, lines 13 – 17, of the record, the lower Court found/declared:
In respect of this the Court must say that the claimant has not been sued based on the loan agreement but on the guarantee it allegedly made in favour of the claimant’s principal and there is no clause in the Guarantee Agreement to the effect that parties have chosen Benin as the forum for resolution of disputes between them. All that the Guarantee said

was that for the purpose of execution of same the parties would be deemed as domiciled in Benin.
In the light of the above legal anatomy, conducted after due consultation with the law, this solemn finding/proclamation is immaculate and unassailable. I endorse it in toto. I crown the lower Court with the toga of forum competens for the adjudication of the respondent’s suit. In effect, the defence of forum non conveniens, invented by the appellant to snuff life out of the suit in limine, is deflated. It follows, that all the strictures, which the appellant weaved and rained against the finding, pales into insignificance. I therefore dishonour the appellant’s salivating invitation to sacrifice the finding on the undeserved shrine of forum non conveniens for want of legal justification. In the end, I have no choice than to resolve the issue two against the appellant and in favour of the respondent.

Having dispensed with issue two, I retreat to attend issue one. The kernel of the issue is canalised within a narrow compass. It chastises the lower Court’s postponement of its view on the execution of the power of attorney.

The appellant’s coup de main is that the lower Court fractured the law in that judicial exercise/act.
It is long settled, that the law, seriously, frowns upon a Court, whether trial or appellate, delving into and determining a substantive matter at interlocutory stage, see Falomo v. Banigbe (supra); Adeleke v. Lawal (2014) 3 NWLR (Pt. 1393) 1, Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Adetono v. Zenith International Bank Ltd. (2011) 18 NWLR (Pt. 1279) 627; Akinrimisi v. Maersk (Nig.) Ltd. (2013) 10 NWLR (Pt. 1361) 73; ABIEC v. Kanu (2013) 13 NWLR (Pt. 1370) 69; FRN v. Borisade (2015) 5 NWLR (Pt. 1451) 1556; Bulet Int’l (Nig) Ltd. v. Olaniyi (2016) 10 NWLR (Pt. 1521) 580; Exxon Mobil Corp. v. Archianga (2018) 14 NWLR (Pt. 1639) 229; In Re: Abdullahi (2018) 14 NWLR (Pt. 1639) 272; Statoil Nig. Ltd. v. Inducon Nig. Ltd. (2018) 9 NWLR (Pt. 1625) 586.
I have, in due allegiance to the desire of the law, situated that deferment with the position of the law catalogued above. The raison d’etre for the juxtaposition is simple. It is to ascertain whether or not the lower Court transgressed the law in that judicial act. The English version of

the power of attorney, which the appellant seeks to impugn and ostracise, is wrapped between pages 19 and 20 of the record. It was donated by the B.I.D.B., the appellant’s alleged creditor, to the respondent. It is decipherable from the record, the bible of every appeal, that hearing was yet to start in that suit. In other words, the appellant’s application, which transfigured into the appeal, was interlocutory which denotes interim, provisional, temporary, not constituting final resolution of controversy, see Agwu v. Julius Berger (Nig.) Plc (2019) 11 NWLR (Pt. 1682) 165; C.G.G. (Nig.) Ltd. v. Eronini (2019) 14 NWLR (Pt. 1692) 219. Thus, the appellant’s application was a quintessence of an interlocutory application. In fact, it falls squarely within the perimeter of an interlocutory stage of a proceeding.
Indubitably, the power of attorney, which is in the heat of expulsion/expunction from the appeal, is yet to be admitted as evidence in the bowel of the lower Court. The importance of exhibits in adjudication cannot be overemphasised. An exhibit denotes a document, record or other tangible objects, formally introduced as evidence

in Court, see Lucky v. State (2016) 13 NWLR (Pt. 1528) 128. A Court of law can only rely on a document tendered as an exhibit before it and vice versa. See Nigerian Ports Plc v. B.P.P.T.E Ltd. (2012) 18 NWLR (Pt. 1333) 454; The People of Lagos State v. Umaru (2014) 7 NWLR (Pt. 1407) 584; Wassah v. Kara (2015) 4 NWLR (Pt. 1449) 374. In so far as the power of attorney has not passed through the crucible/furnace of admissibility, nor admitted by the lower Court, its pronouncement on its regularity or otherwise will smack of determining substantive issue at interlocutory stage. On this score, the lower Court did not offend the law when it put its due execution in incubation till the hearing stage.
Let me place on record, apace, that the finding does not foreclose the appellant’s right to greet its admission with a stiff opposition in futuro, at the point of tendering it or even thereafter. The reason is clear. One of the determinants of jurisdiction of Court orbits around the evidence received, see Barclays Bank of Nigeria Ltd. v. CBN (1976) 1 AII NLR 409 at 424; NDIC v. CBN (2002) 7 NWLR (Pt. 766) 272; Nonye v. Anyiechie (2005) 2 NWLR (Pt. 910) 623;

Julius Berger (Nig.) Plc v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219; Zubair v. Kolawole (2019) 11 NWLR (Pt. 1682) 66; Titilayo Plastic Ind. Ltd. v. Fagbola (2019) 14 NWLR (Pt. 1691) 88. On this premise, it is not cul-de-sac for the appellant vis a vis his registration of objection to the validity/viability of the power of attorney.
Flowing from this juridical survey, the lower Court did not desecrate the law when it put in abeyance its view on the regularity of the power of attorney. It was, totally, in tandem with the law. To this end, it will smack of judicial sacrilege to interfere with a finding that is not hostile to the law. In sum, I will not hesitate to resolve the issue one against the appellant and in favour of the respondent.

On the whole, having resolved the two issues against the appellant, the destiny of the appeal is obvious. It is bereft of any grain of merit and merits the penalty of dismissal. Consequently, I dismiss the appeal. I affirm the decision of the lower Court delivered on 10th May, 2012. The parties shall bear the respective costs they expended in prosecuting and defending the doomed appeal.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: My learned brother OBANDE FESTUS OGBUINYA, JCA obliged me with a preview of the leading judgment which has just been delivered and in which, having dealt with the two (2) issues raised by the Appellant, he found the appeal as lacking in merit and dismissed it.

I agree with the reasoning which informed the decision reached because, a contract of guarantee, i.e. the Guarantee Act is one which in law, is in personam and can be judicially enforced where the Guarantor as a Defendant resides, except where it can be shown that the executed contract of guarantee has otherwise prescribed a venue other than where the Guarantor resides. Secondly, a creditor such as the Respondent in this case acting as the ‘Agent” (by virtue of a power of Attorney) of the Banque International Du Benin (B.I.D.B.) can seek to recover the debt owed against the Principal Debtor, i.e. Society D’ Egrenage Industrial Dc Coton Du Benin (S.E.I.C.B) registered in Benin Republic, or may seek to recover the debt arising from the loan facilities granted to S.E.I.C.B from the Appellant who guaranteed the facilities, or it may choose to institute recovery action

against both the Principal debtor and the guarantor. Once the action in the lower Court was instituted against the Appellant on the strength of the Guarantee Act he executed on behalf of (S.E.I.C.B) and in favour of B.I.D.B, being an action in personam, the proceedings can be instituted, in line with the provisions of the High Court of Lagos State (Civil Procedure) Rules, 2012 against the Appellant where he resides as a Defendant.

I agree with my learned brother that the issue of whether or not the Power of Attorney executed by B.I.D.B. in favour of the Respondent can be challenged before it is tendered as exhibit even as a threshold issue of the Respondent’s competence or capacity to institute the action, was premature and hasty as it would not only amount to resolving a substantive issue of evidence at an interlocutory stage, but would eventually amount to “short-circuiting” the proceedings by pre-emptive strike against a document which is yet to be produced as evidence at the trial of the suit. It will amount to pre-emptive speculation to urge the lower Court to read and construe the Respondent’s pleaded facts with a view to

holding that the Power of Attorney donated to the Respondent by B.I.D.B. was legally flawed document and as such, would affect the Respondent’s competence and capacity to institute and maintain the action in the lower Court.

It is for these and the fuller reasons comprehensively marshalled by my learned brother, that I wholly subscribe to the decision reached that the appeal be and it is hereby dismissed.
I abide with the consequential order made as to costs.

BALKISU BELLO ALIYU, J.C.A.: I read in draft the leading judgment of my learned brother OBANDE FESTUS OGBUINYA, JCA just delivered.

I am in total agreement with the reasoning and conclusion reached in the resolution of the two issues raised by the Appellant and I adopt same as mine. Consequently, I find no merit in this appeal and I dismiss it.
I abide by the order made as to cost. Appeal dismissed.

Appearances:

Ifeoma Esom, Esq., with him, Adeyori Adedeji, Esq. For Appellant(s)

Chief A.A. Aribisala, SAN with him, D. Ojopagogo, Esq., O. Aribisala, Esq., and I. Abubaka, Esq. For Respondent(s)