UBA v. ALHAJI ADE OLAWOLE
(2010)LCN/3974(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 13th day of July, 2010
CA/C/125/2008
RATIO
JURISDICTION: ESSENCE OF THE ISSUE OF JURISDICTION ON A COURT PROCEEDING; WHAT ARE THE INGREDIENTS WHICH GUIDE A COURT OF LAW TO DETERMINE WHETHER IT HAS JURISDICTION OR NOT
Undoubtedly jurisdiction is the foundation to the sustenance of action and lack of it renders the entire proceedings no matter how well conducted null and void. The ingredients which guide a court of law to determine whether it has jurisdiction or not are as follows:- 1. the court is properly constituted as regards numbers and qualification of its membership; 2. the case comes before the court initiated by due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction. SEE E.F.P. CO. LTD VS. N.D.I.C (2007) 9 NWLR (pt 1039) 216 @ 243; LEAD MERCHANT BANK LTD VS. P.T.F. (2006) 5 NWLR (pt 974) 463; 472. jurisdiction must exist from the time of initiation of action to judgment. Refer to UNILORIN VS. ADENIRAN (2007) 6 NWLR (pt 1031) 498 @ 529; ADISA VS. OYINWOLA (2000) 10 NWLR (pt.674)116. PER JAAFARU MIKA’ILU. J.C.A.
JUSTICES
KUMAI B. AKAAHS Justice of The Court of Appeal of Nigeria
JAAFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
Between
UBA – Appellant(s)
AND
ALHAJI ADE OLAWOLE – Respondent(s)
JAAFARU MIKA’ILU. J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State, Holden at Ikom and delivered by Hon. Justice M. O. Eneji on the 2nd day of March 2007.
The facts of this case are that in the year 1997, the 1st Respondent applied for an overdraft of N1,540,000.00 from the appellant to finance a Local Purchase Order (LPO) from the Cross River State Primary Education Board for the purchase and supply of vehicles. A domiciliation of payment was duly executed by the 1st Respondent in favour of the appellant.
It is alleged that after receiving the funds, the 1st Respondent failed to supply the vehicles to the Education Board, thereby frustrating the domiciliation of payment in favour of the appellant. He stopped operating his account with the appellant and diverted all his banking transactions including lodgment of large sums of money to another bank.
When it became obvious to the appellant that the conduct of the 1st respondent had become suspicious, it made a complaint of obtaining money by false pretences and luminal diversion of funds to the 2nd respondent, the Commissioner of Police.
The 1st Respondent was invited by agents of the 2nd respondent and after making his statement to the police, he was released within a period of two hours OF HIS INVITATION. The 1st Respondent instituted this action against the appellant and the 2nd respondent claiming from the appellant the sum of N5m for instigating his arrest and detention and N5m from the 2nd respondent for detaining him over a debt.
The trial of the case was conducted. At the conclusion of the trial the learned trial Judge found for the 1st Respondent and awarded the sum of N1m against the appellant in favour of the plaintiff. The trial Judge held that there was enough evidence to find the 2nd Respondent liable but suo motu struck out the name of the 2nd Respondent on the ground that only the Federal High Court has jurisdiction over the 2nd respondent.
Dissatisfied with the decision of the trial court the appellant filed this appeal. In the appellant’s brief of argument four issues have been formulated for determination. They read as follows:-
1. Whether the lower court had jurisdiction to proceed to judgment against the appellant after holding that only the Federal High Court can adjudicate over the 2nd Respondent?
2. In the light of the decision in FAJEMIROKUN VS. C.B (C.I) NIG LTD (2002) 10 NWLR (pt 774) 95 @ 110; whether the striking of the name of the Commissioner of Police (2nd Respondent) from the suit did not render the action incompetent? (Ground 3).
3. Whether the lower court was right in finding the appellant liable for the arrest and detention of the 1st Respondent by the 2nd Respondent? (Grounds 5 and 8)
4. Whether the damages of N1,000,000.00 and cost of N200,000.00 awarded against the appellant are not Excessive, punitive and unwarranted? (Grounds 6 and 7).
It is to be noted that only the 1st Respondent has filed 1st Respondent’s brief of argument. It contains only response to the arguments on the issues formulated and argued in the appellant’s brief of argument.
The first issue is whether the lower court had jurisdiction to proceed to judgment against the appellant after holding that only the Federal High Court can adjudicate over the 2nd respondent. This issue arises from grounds 1 and 2 of the grounds of appeal. Undoubtedly jurisdiction is the foundation to the sustenance of action and lack of it renders the entire proceedings no matter how well conducted null and void. The ingredients which guide a court of law to determine whether it has jurisdiction or not are as follows:-
1. the court is properly constituted as regards numbers and qualification of its membership;
2. the case comes before the court initiated by due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction. SEE E.F.P. CO. LTD VS. N.D.I.C (2007) 9 NWLR (pt 1039) 216 @ 243; LEAD MERCHANT BANK LTD VS. P.T.F. (2006) 5 NWLR (pt 974) 463; 472. jurisdiction must exist from the time of initiation of action to judgment. Refer to UNILORIN VS. ADENIRAN (2007) 6 NWLR (pt 1031) 498 @ 529; ADISA VS. OYINWOLA (2000) 10 NWLR (pt.674)116.
The appellant raised the issue of jurisdiction in his final address and urged the trial court to strike out the matter on that score on the premise that there was a feature in the case which prevented the court from exercising jurisdiction. The said feature is the joinder of the 2nd respondent as a party in the case given its status as an agent of the Federal Government. The 1st respondent conceded this point in his address at page 27 of the records by merely saying that the police is a nominal party. The court found as a fact that it had no jurisdiction. The trial Judge at pages 38 and 39 of the record stated as follows:-
“However, there is evidence on record to find the 2nd defendant liable to the plaintiff’s claim, I cannot do so on the ground that only the federal High Court is empowered in law with the jurisdiction to entertain the plaintiff’s claim against the 2nd defendant. The 2nd defendant is therefore disjoined from this suit from this suit and his name is struck out’.
The appellant’s counsel has submitted that the above diction of the trial Judge is an admission that from the time of initiation of the suit there was a feature which deprived the trial Judge of jurisdiction to entertain the matter. That the striking out of the name of the 2nd respondent suo motu was nothing but a feeble attempt by the court to invest jurisdiction on itself where there was clearly none. A court is not hungry after jurisdiction and it is the duty of a Judge to expouse jurisdiction and not to expand it. Refer to AFRICAN NEWSPAPER OR NIGERIA LTD VS. NIGERIA (1985) 2 NWLR (pt 6) 137 @ 159-160.
The appellant counsel has submitted that a court cannot suo motu strike out the name of a party in a suit in order to confer itself with jurisdiction. That this is even exacerbated by the fact that the striking out was at the stage of judgment. The learned counsel raked as to what then becomes of the pleadings and testimony against the second respondent. That can the court perform surgery to extricate and separate the facts that have to do with the 2nd respondent? And if that is done would there be facts left to find the appellant liable?
Where a party has a choice of two courts that party should approach the court that has jurisdiction over the entire subject matter.
The second issue is in the light of the decision in FAJEMIROKUN VS. C.B.(C.L) NIG LTS (2002) 10 NWLR (pt 774) 95 @ 110 whether the striking of the name of the Commissioner of Police (2nd Respondent) from the suit did not render the action incompetent?
(ground 3).
It has been argued by the appellant that after striking out the name of the 2nd Respondent (Commissioner of Police, Cross River State Command), the action immediately became incompetent as failure to join the police who were alleged to have effected the arrest and detention of the 1st Respondent is fatal to the case. Here reliance has been placed on FAJEMIROKUN VS. C.B (C.L) NIG. LTD (2002) 10 NWLR (pt774) 95 @ 110 4113. That the averments in the statement of claim are so intertwined that it would be practically impossible to extricate them and determine the case against the appellant without joining the 2nd Respondent. Having perused the case of the 1st Respondent as revealed in paragraphs 8, 9 and 12 of his statement of claim it is obvious from the same that the police is an essential and indispensable party to the proper adjudication of the case as all the allegations of unlawful arrest, detention, humiliation and hardship are against the police. He has added that this explains why even after the court had suo motu struck-out the name of the 2nd defendant it still anchored the reliefs granted in favour of the plaintiff on the actions or inactions of the 2nd defendant.
The learned appellant counsel urges this court to resolve this issue in the positive and hold that the striking out of the name of the 2nd defendant was fatal to the case and made it incompetent. The learned counsel for the 1st Respondent has argued that contrary to this assertion the Supreme Court in the case of LEONARD OKOYE v NIGERIAN CONSTRUCTION AND FURNITURE COMPANY LIMITED AND 4 ORS (1991-1992 VOL.1 ANLR page 328 held that failure to join a party cannot render the proceedings void on the basis of jurisdiction, it is an irregularity which may lead to unfairness. The irregularity, however, does not affect the jurisdiction of the court to resolve the issue before it. The appellant counsel has further submitted that the main thrust of the matter is founded on a contract that was created from the grant of an overdraft facility to the 1st Respondent. The police therefore were only nominal parties and there is nothing in the proceedings at the trial court that amounted to unfairness to the Appellant. He has averred that this situation is distinguishable from the case of FAJEMIRONKUN C.B (C.L) NIG LTD (supra) where the issue was not founded on a contract but the enforcement of the fundamental (human) rights. He has added that another distinguishing factor is that in FAJEMIROKUN’S case (supra) the defendant refused ever causing the arrest and detention of the plaintiff. That in the present case which is based purely on contract, the defendant’s only witness who was the manager of the Bank at the time did not refuse the fact that the Respondent was arrested and detained until the debt of 1.2 million was paid before he was released.
The learned counsel for respondent had added that the decision is FAJEMIROKUN’S case is not apposite to the present matter and should therefore be discountenanced. He has further contended that the trial judge of the High Court sitting in Ikom acted pursuant to Order 11 Rules 5(2) of the C.R.S High Court Civil Procedure rules 1987 that “The court may at any stage of the proceedings and on such terms as appear to the court to be just order that the name or names of any party or parties whether as plaintiff’s or defendants, improperly joined be struck out”. That the police is therefore a necessary party.
The third issue formulated by the appellant for determination is whether the lower court was right in finding the appellant liable for the arrest and detention of the 1st Respondent by the 2nd Respondent. In this regard the appellant opined that it was not wrong for the 1st Respondent to be arrested and detained on a purely civil transaction and relied on the authorities of OKONKWO VS. OGBOGU (1996) 5 NWLR (pt 449) 420; ONYEDINMA VS. NNITE (1997) 3 NWLR (pt 493) 333, AFRIBANK NIG PLC VS. ONYIMA (2004) 2 NWLR (pt 858) 654; 679 concluding that it was the Police who decided to arrest. The learned counsel for the 1st Respondent has submitted that complain founded on crime must be real, legal and not speculative. That the superiors allegations leveled against the 1st Respondent were unfounded, malicious, vexatious and oppressive. The transaction that gave rise to this appeal was founded on contract. The debt arising from the overdraft facility was secured by the building of the 1st Respondent as fomalized by the legal mortgage.
The learned counsel for the 1st Respondent has further added that the appellant therefore had the means of recovering the money. That it is also a fact that before the transaction the appellant was not misled into releasing funds to the 1st Respondent. He opined that there was therefore no justification for his arrest and detention. The learned counsel has therefore averred that the authorities relied upon by the appellant are not apposite, urging this court to jettison them.
The 1st Respondent counsel has argued that the appellant in their submission attempted to justify their actions on the grounds that the domiciliary accounts were not operated. That on page 8 paragraph 6.6 of the appellant’s brief, the appellants contended that “there must have been some manipulations which border on criminality”
He has added that the appellant was not certain about the commission of any crime by the 1st Respondent to necessitate his inconsideration for the repayment of a loan secured by a legal mortgage.
The learned counsel for the 1st Respondent has referred this court to page 18 of the record, last paragraph where the only witness for the appellant stated during cross examination as follows:-
“The Plaintiff furnished the bank with a collateral… a certificate of occupancy over his property to secure the loan…and “I am aware that when the plaintiff deposited his certificate of occupancy a legal mortgage was created. The effect of the legal mortgage is that should the plaintiff default his security will be realized. He complied with all our terms for lending before we gave him the loan.”
With the above the learned counsel for the 1st Respondent had maintained that the arrest and detention of the 1st Respondent until the debt was paid on his behalf was not a legitimate option and uncalled for. He has reiterated that the 1st respondent had discharged the burden placed on him to prove that he was detained when the appellant admitted same. That what is admitted needs no further proof.
The learned counsel for the 1st Respondent had referred this court to paragraph 6.3 at page 7 of the appellant’s brief and the testimony of the 1st Respondent at page 35 of the record. He has also referred this court to paragraph 6.3 of the Appellant’s brief which states as follows:-
“The 2nd Respondent after reading the petition decided out of its own initiative to detain the 1st Respondent…”
The learned counsel for the 1st Respondent had added that the fact of whether or not the 1st Respondent was detained did not therefore arise as it was not in contention, urging this court to resolve this issue in favour of the 1st Respondent.
Having considered the averments of both side I hereby resolve this issue in favour of the 1st Respondent. The last issue is whether the damages and cost awarded in favour of the 1st Respondent are not excessive, punitive and unwarranted. Here the submission of the 1st Respondent is that the damages awarded by the trial court were neither excessive, punitive or unwarranted. The plaintiff (1st Respondent) was entitled to be compensated in damages for the wrongful detention of his person without justification instead of realizing the mortgage. It must be agreed that there is no amount of money that can be equated to the freedom and liberty of a citizen of the Federal Republic of Nigeria as guaranteed under chapter IV of the constitution of the Federal Republic of Nigeria, 1999. It is also to be noted that even after the 1st Respondent had paid his debt of N1,240,000.00 (one million two hundred and forty thousand naira) on the 22nd of July, 1998 the appellant still retained his titled documents up till the year 2004. Thus the 1st Respondent could not use his documents for any transaction for 7 years. Moreso even when the certificate of occupancy was returned no deed of release was executed in his favour till the determination of the matter. This meant that the property remained unnumbered at the lands registry. The 1st Respondent counsel has submitted that the trial court was very considerate almost against the interest of the 1st Respondent in the amount of damages it awarded the 1st Respondent. He has referred this court to the Record pages 7-14 for the facts supporting the award of damages as stated by the 1st Respondent and confirmed by P.W.1 from page 15-19 of the Record. He has also referred this court to the pleadings as contained in the statement of claim and the endorsements on the writ of summons at page 3-4 and 1-2 respectively of the Record. He has further added that an award of damages will be excessive, unwarranted and punitive if it is not a direct and natural consequence of the action or inaction of the offending party; it was an exercise of judicial discretion not supported by the facts of the case as stated in the pleadings and evidence adduced. He has contended that the exercise of this discretion in favour of the 1st Respondent was proper and he urges this court to uphold the said award by the trial court. He has referred this court on the attitude of appellate courts on award of general damages to the case of ODOGU VS. ATTORNEY GENERAL OF THE FEDERATION & 6 ORS ALL NLR 1995 – 1996 page 480 holding 2 and 4.
The learned counsel for 1st Respondent aligned himself with the submission of the appellant as regards the issues the court should take into consideration in awarding costs and has submitted that the court did not only use the duration of the case to arrive at its decision. That on the body of the judgment, the facts as revealed during the trial as shown on the pleadings were also relied upon.
The 2nd issue for resolution as formulated by the 1st Respondent is whether in a transaction that is purely civil and backed up by a mortgage deed a party can resort to self help by using the police to arrest and detain the other party instead of realizing the mortgage. If the answer to this question is in the negative whether such exercise of wrongful use of discretion will not attract damages and costs for the reasons already advanced. He has averred that this is proper case where the courts of law must live up to their expectation of protecting the right of citizens of this country as it is not one of the functions of the Nigeria police under s.4 of the Police Act to recover debt and he who does a thing through another does it himself. So the appellant should face the consequences.
Having considered the arguments of the learned counsel for the appellant and the learned counsel for the Respondent I am of the view that there is nothing to warrant this court to interfere with the decision of the trial court. There is also nothing to warrant this court to interfere with the orders issued by the trial court. Consequently the appeal lacks merit and it is therefore dismissed. Parties to bear their costs.
K. B. AKAAHS J.C.A.: I was privileged to read the draft of the judgment of my learned brother, Mikailu JCA. I endorse his reasoning and conclusion that the appeal lacks merit and it is accordingly dismissed.
The practice whereby parties turn to the Police to enforce purely contractual obligations instead of focusing their attention on prevention of criminal activities should be utterly condemned. Secondly, a party to an action should not escape liability merely because another party joined to the suit is not subject to the jurisdiction of the court unless it is an issue of joint liability which cannot be severed. Where the liability is both jointly and severally, the party found to be subject to the jurisdiction of the court can be severally liable.
I accordingly dismiss the appeal and abide by the consequential order not to award costs to the respondent.
NWALI SYLVESTER NGWUTA J.C.A.: I read in draft the lead judgment delivered by my learned brother Mikailu JCA. I agree with his reasoning and conclusion and consequently I also dismiss the appeal and affirm the decision of the Court below.
Appearances
Mathew Ojua Esq.For Appellant
AND
Dan Takon Etta EsqFor Respondent
