FIRST BANK OF NIGERIA PLC v. GOVERNMENT OF ONDO STATE & ORS.
(2012)LCN/5256(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 27th day of March, 2012
CA/B/262M/2004
RATIO
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
FIRST BANK OF NIGERIA PLC. – Appellant(s)
AND
1. GOVERNMENT OF ONDO STATE
2. ATTORNEY GENERAL OF ONDO STATE
3. NATIONAL BANK OF NIGERIA PLC
4. BIBSON ASSOCIATES LTD – Respondent(s)
RATIO
WHETHER OR NOT IT IS A CLAIMANT’S CLAIM AS ENDORSED IN THE WRIT OF SUMMONS THAT DETERMINES WHETHER OR NOT A COURT HAS JURISDICTION TO ENTERTAIN A MATTER BEFORE IT
It is trite law that it is a claimant’s claim as endorsed in the writ of summons and or the statement of claim that determines whether or not a court has jurisdiction to entertain a matter before it. In the present case, the writ of summons filed by the first and second respondents on the 7th day of November, 2003 spans pages 110 – 112 of the supplementary record of appeal. The claim of the first and second respondents is clearly endorsed therein. The appellant’s notice of appeal was filed in the lower court on the 19th day of January, 2004 (see page 36 of the record of appeal). Therefore, the question of prematurity of the issue of jurisdiction is grossly misplaced. A question of jurisdiction is a radical and fundamental matter touching on the court’s competence to adjudicate upon a matter and it can be raised at any stage of proceeding in a lawsuit. It can be raised in any manner by the party or even suo moto by the court. The issue of jurisdiction can even be raised for the first time in the apex court – the Supreme Court of Nigeria. See ENUGWU v. OKEFI (2000) 3 NWLR (Pt.650) 620. The issue of jurisdiction has been properly raised by the appellant in this case. PER ADUMEIN, J.C.A.
WHETHER OR NOT THE REMEDY OF INJUNCTION IS GOVERNED BY STRICT RULES OR PRINCIPLES
The remedy of injunction, being an equitable relief, is not governed by any strict rules or principles. Each case is to be determined on its peculiar facts and setting with the sole aim of ensuring that justice is not diluted but meted out in its purest form to the parties in a lawsuit. As a judicial remedy, the discretion to grant or refuse a motion ex parte for interim injunction should be exercised judiciously and judicially and not whimsically. Therefore, based on a long line of judicial authorities, the following factors should be taken into consideration when taking a decision whether to grant or to refuse an application ex parte for interim injunction:
1. That there is real urgency, not self induced urgency.
2. That prima-facie irreparable damage will be caused by failure to grant the ex parte order.
3. That a grant will preserve the res.
4. That the status quo will be maintained.
5. That the balance of convenience is in favour of the applicant.
6. That the applicant is not guilty of any inequitable conduct, such as delay.
7. That the applicant gives a satisfactory undertaking to pay damages to the adverse parry in case the court was misled to granting the ex parte injunction or the application is later found to be unfounded or frivolous.
See the cases of KOTOYE v. C.B.N. (1989) 1 NWLR (Pt.98) 419; a & 7-UP BOTTLING CO. LTD. v. ABIOLA & SONS (NIG.) LTD. (1995) 3 NWLR (Pt.383) 257 and ANIMASHAUN & ORS. V. BAKARE & ORS, (2010) 16 NWLR (Pt.1220) 513. PER ADUMEIN, J.C.A.
MOORE A. A. ADUMEIN, J.C.A. (Delivering the Leading Judgment): In suit No. AK/278/2003 filed in the High Court of Ondo State, Akure Judicial Division, the 1st and 2nd respondents were the plaintiffs. The defendants in the Court below were: 1. BIBSON ASSOCIATES LIMITED, 2. NATIONAL BANK OF NIGERIA LIMITED and 3. FIRST BANK OF NIGERIA PLC
The 1st and 2nd respondents sought 9 (nine) principal prayers as endorsed in the writ of summons taken out by them (pages 110-112 of the supplementary record of appeal).
By a motion ex parte dated the 7th day of August, 2003 and filed on the same day, the first and second respondents, sought the following relief:
(1) An order of interim injunction restraining the second defendant/respondent from paying any sums of money out the first plaintiffs/applicant’s account with it or honoring any demand from the first and third respondents or their agents from the said account in pursuance of the irrevocable bank guarantee dated 29th July, 2002 pending the determination of the motion of Notice.
(2) An order of Interim Injunction restraining the second Defendant/Respondent from issuing, clearing and/or giving effects to any cheque, draft or any negotiable instrument made by the first and third defendants/respondents or their agents or assigns on the account maintained by the first plaintiff/applicant with the second defendant/respondent pursuant to the said irrevocable bank guarantee, pending the determination of the motion on Notice.
And for such other or further orders that this honourable court may deem fit to make in the circumstance.”
The motion ex parte was heard and granted on the 7th day of August, 2003 by Komolafe, J.
The appellant, was not satisfied with the decision of the lower court and filed a notice of appeal containing four (4) grounds pages 33 to 36 of the record).
PRELIMINARY OBJECTION
The 3rd respondent raised and argued a preliminary objection in its undated brief of argument filed on the 12th day of September, 2005 but deemed properly filed and served on the 27th day of September 2006. The preliminary objection was moved before the hearing of the appeal. The 3rd respondent’s preliminary objection to the competence of the appeal is premised on the grounds that there was no service of the notice of appeal on the 3rd respondent and that the notice of appeal was filed outside the period of 7 (seven) days granted for its filing by the court on the 12th day of January, 2004. The preliminary objection is argued from paragraph 3 at pages 3 to 5 of the 3rd respondent’s brief.
The appellant’s reply to the 3rd respondent’s preliminary objection is at page 3 of its reply brief dated 27th of October, 2006 and filed on the 7th day of November, 2006 but deemed filed on the 22nd of March , 2007
I have read the submissions for and against the 3rd respondent’s preliminary objection. I have also read the legal authorities cited by the 3rd respondent and the appellant respectively. I agree with the appellant that the 3rd respondent, which has participated fully in this appeal including filing its brief of argument, cannot be heard on the ground that it was not served personally with the notice of appeal. The 3rd respondent is deemed to have waived its right to personal service, if indeed it was not served personally, having regard to the circumstances of this case.
In any case, I am satisfied that the notice of appeal was indeed communicated to the 3rd respondent and its objection is disallowed under Order 2 Rule 6 of the Court of Appeal Rules, 2007 (applicable to this case).
The 3rd respondent argued, inter alia, as follows:
“The notice of appear was fired on 22/01/2004 which is 3 days late after the 7 days extension given by this court on 12/01/2004, hence the notice of appeal copied at pages 30-33 was not filed within time”
The argument of the 3rd respondent is not supported by the record of appeal.
First, the notice of appeal spans pages 33 to 36 of the record. At page 36 of the printed record, the endorsement of the lower court shows that the notice of appeal was assessed and filed on 19/1/2004. By a simple arithmetical calculation, the 19th day of January, 2004 falls within 7 days from the 12th day of January, 2004 and the notice of appeal was filed within the time ordered by the court.
The preliminary objection of the 3rd respondent is totally devoid of merit and it is dismissed.
It should be noted that the 1st and 2nd respondents have a notice of preliminary objection dated the 18th day of October, 2005 but filed on the 20th day of October, 2005. The argument in respect of the said objection is at paragraphs 3.0 – 3.16 spanning pages 2 to 6 of the 1st and 2nd respondents’ brief. The appellant’s reply is at pages 1-2 of its reply brief. The court was not moved in respect of the 1st and 2nd respondents’ preliminary objection and it is deemed abandoned.
The notice of preliminary objection of the 1st and 2nd respondents and all the submissions thereon are hereby struck out. The law is that a notice of preliminary objection may be given and argued in a respondent’s brief. For the court to countenance such a preliminary objection, however, the objecting party must obtain leave to argue same before the commencement of the hearing of the substantive appeal. See OFORKIRE & ANOR V. MADUIKE & 5 ORS. (2003) 5 NWLR (Pt.812) 166 AT 178-179, Where the Supreme Court, per MOHAMMED, J.S.C. stated thus:
“The notice of preliminary objection can be given in the respondent’s brief, but a party filing it, in the brief, must ask the court for leave to move the Notice, before the oral hearing of the appeal commences. Otherwise it will be deemed to have been waived and therefore abandoned”
SUBSTANSTIVE APPEAL
At the hearing of the appeal, Mr. Eduwu, learned counsel for the appellant, adopted and relied on the appellant’s brief dated the 7th day of April, 2005 and filed on the 8th day of April, 2005 but deemed properly filed on the 22nd day of March, 2007 and its reply brief dated the 27th day of October, 2006 and filed on the 7th day of November, 2006 but deemed filed properly on the 22nd day of March, 2007 – Learned counsel urged the court to allow the appeal and set aside the orders of the lower court.
S. L. Onipede, Esq. leading F. S. Akinnibosun, Esq. for the 1st and 2nd respondents adopted and relied on their brief dated the 18th day of October, 2005 but filed on 20/10/2005 and urged the court to dismiss the appeal, The said brief was settled by A. O. Adebusoye, Esq., solicitor – General, Ministry of Justice, Ondo State.
Mr. Alex A. Ajayi, learned counsel for the 3rd respondent adopted his brief filed on the 12th day of September , 2005 but deemed properly filed on the 27th day of September, 2006. He relied on the said brief and urged the court to dismiss the appeal.
The 4th respondent did not file any brief. However, Yinka Ogunode Esq; learned counsel for the 4th respondent aligned himself with the 3’d respondent and urged the court to dismiss the appeal’
In the appellant’s brief, the following three (3) issues were distilled for determination:
“(1) Whether having regard to the provisions of S.251(1)(d) of the Constitution of the Federal Republic of Nigeria 1999, the High Court of Ondo State has jurisdiction to entertain the subject suit and I or make the order of interim injunction granted to the 1st & 2nd respondents.
(2) Whether having regard to the legal status of a bank draft’ and the clear provisions of the Bills of Exchange Act Cap BB Laws of the Federation 2004 it was right of the Learned Trial Judge to grant an interim injunction stopping payment of the bank draft duly issued by the 3rd Respondent.
(3) whether the interim injunction granted ex-parte by the lower court did not run contrary to the conditionalities for the grant.”
The first and second respondents, however, adopted only the first and third issues framed by the appellant as the relevant issues for determination in this appeal. On its part, the 3rd respondent distilled the following three issues for determination:
“1. Whether the learned trial judge is right to grant the interim order of injunction ex-parte in view of the bank draft issued by the 3rd respondent.
2. Whether the appellant who filed and argued his motion to discharge the interim injunction granted ex-parte can at the same time file this appeal against the ruling’
3. Whether the 3rd respondent is right to refuse to honour its cheque after it has been served with the restraining order? ”
I accept the three issues formulated by the appellant as the germane issues that call for determination. However, Issues No. 1 and Issue No. 2 can be conveniently treated together and they will be so treated.
ISSUE NOS. 1 AND 2.
As a preliminary point, the first and second respondents, referred to the cases of TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (Pt.117) 517. ONYENUCHEYA V. THE MILITARY ADMINISTRATOR OF IMO STATE (1997) 1 NWLR (pt.482) 429 and MULTIPURPOSE VENTURES LTD, V. A.G. RIVERS STATE (1997) 9 NWLR (pt.522) 642 and argued that jurisdiction of a court to entertain a matter is determined by critically looking at the writ of summons and the statement of claim.”
They argued that at the time the lower court granted the interim orders, appealed against by the appellant, no writ of summons or statement of claim had been filed and, therefore, the issue of jurisdiction had been prematurely raised by the appellant.
The appellant, in response, argued that “the nature of the plaintiffs claim can be deduced from the originating process filed by the plaintiff initiating the proceedings before the court, and that this will vary from case to case”
It is trite law that it is a claimant’s claim as endorsed in the writ of summons and or the statement of claim that determines whether or not a court has jurisdiction to entertain a matter before it. In the present case, the writ of summons filed by the first and second respondents on the 7th day of November, 2003 spans pages 110 – 112 of the supplementary record of appeal. The claim of the first and second respondents is clearly endorsed therein. The appellant’s notice of appeal was filed in the lower court on the 19th day of January, 2004 (see page 36 of the record of appeal). Therefore, the question of prematurity of the issue of jurisdiction is grossly misplaced. A question of jurisdiction is a radical and fundamental matter touching on the court’s competence to adjudicate upon a matter and it can be raised at any stage of proceeding in a lawsuit. It can be raised in any manner by the party or even suo moto by the court. The issue of jurisdiction can even be raised for the first time in the apex court – the Supreme Court of Nigeria. See ENUGWU v. OKEFI (2000) 3 NWLR (Pt.650) 620. The issue of jurisdiction has been properly raised by the appellant in this case.
The kernel of the appellant’s argument on the issue of jurisdiction of the lower court is that having regard to the provisions section 251(1) (d) of the Constitution of the Federal Republic of Nigeria, 1999, the High Court of a State does not have “jurisdiction to adjudicate over a matter that concerns or is related to the operations of the business of banking. It is also the appellant’s contention that the lower court had no jurisdiction or right to grant an interim injunction stopping payment of a bank draft” in view of the legal status of a bank draft, having regard to the provisions of the Bills of Exchange Act, Cap 88, Laws of the Federation of Nigeria, 2004. The appellant called to its aid, in respect of these two issues, the cases of N.D.I.C. v. OKEM ENT. LTD (2004) 10 NWLR (Pt.850) 107; UBA v. IBHAFIDON (1994) 1 NWLR (Pt.318) 90 at 99 and LAGRICOM CO. LTD. v. UBN LTD (1996) 4 NWLR (pt.441) 185 at 203, amongst others.
The first and second respondents however, submitted that their case is “covered by the proviso to section 251(1) (d) of the constitution and as such the lower court has a concurrement jurisdiction over it”
Section 251(1) (d) of the constitution of the Federal Republic of Nigeria, 1999 provides thus:
“(1) Notwithstanding anything to the contrary contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters –
(a) ………………………………………………………….
(b) ………………………………………………………….
(c) ………………………………………………………….
(d) connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures:
Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank;”
The indorsement in the writ of summons taken out by the 1st and 2nd respondents in the lower Court is as follows:
“The plaintiffs claim against the Defendant is for the following reliefs:
1. A declaration that the 1d defendant has failed to supply all the sundry equipment agreed to by the plaintiffs and the 1st defendant vide the contract agreement dated the 2nd of November, 2000 and all the subsequent variations.
2. A declaration that the 1st defendant has failed to supply the sundry equipment agreed to by the plaintiffs and the 1st defendant according to the specifications in the contract.
3. A declaration that the failure of the 1st defendant to supply the sundry equipment as agreed is a breach of the agreement dated the 2nd of November, 2000 between the plaintiffs and the 1st defendant.
4. A declaration that the 1st defendant breach of the agreement of 2nd of November, 2000 and all other subsequent variations amount to a discharge and termination of the contract between the plaintiffs and the 1st defendant.
5. A declaration that the bank guarantee of 31st of July, 2002 issued by the 2nd defendant on behalf of the plaintiffs and in favour of the 3rd defendant forms part of the Gontract between the Plaintiffs and the 1st defendant
6. A declaration that there is a failure of consideration for the continuing irrevocable bank guarantee executed in favour of the 3rd defendant.
7. A declaration that the bank guarantee 31st of July, 2002 issued by the 2nd defendant on behalf of the plaintiffs and in favour of the 3rd defendant had been discharged upon the variations and breach of the contract between the plaintiffs and the 1st defendant.
8.(i) N5001000,000.00 (Five hundred million naira) as general damages against the 1st defendant
(ii) N72,469,801.35(Seventy-two million, four hundred and sixty – nine thousand, eight hundred and one Naira) as special damaged against the 1st defendant.
PARTICULARS OF SPECIAL DAMAGES
(d) Items not supplied at all – N35,390,001:15
(e) Items supplied not according to
specification and not found useful – N26,550,000:00
(f) Interest at 17% per annum – N10,529,800:20
———————-
TOTAL :- N72,469,801:35
= = = = = = = = =
9. An order of perpetual injunction restraining the 2nd and 3rd defendants from giving effect to the irrevocable bank guarantee dated 29th of July, 2003”.
It is very clear from the claim of the 1st and 2nd respondents, reproduced above, that their declaratory monetary and injunctive prayers are not matters that fall within the “banking” business of the appellant. The claim of the 1st and 2nd respondents relates its contract with the 4th respondents- BIBSON ASSOCIATES LTD, in respect of which a bank guarantee was issued on the 31st day of July, 2002 by the 3rd respondent in favour of the appellant. The 1st and 2nd respondents had alleged breach of the principal contract on which the bank guarantee was predicated and are even claiming refund of monies paid to the 4th respondent on the said contract which they alleged had failed.
To be concise, the claim before the lower court relates to the rights, duties and obligations of the parties under the contract agreement dated the 2nd day of November, 2000 and the variations thereto, for which reason the bank guarantee in favour of appellant was issued. These matters are clearly within the jurisdiction of the High court of a state, such as the lower court.
As stated earlier, the lower court granted interim orders of injunction against the 3rd respondent.
Injunction is an equitable remedy granted upon certain established principles of equity. In the instant case, since the lower court has jurisdiction to adjudicate over the principal claim of the 1st and 2nd respondents, it has jurisdiction to entertain their motion ex-parte for orders of interim injunction.
Issue Nos. 1 and 2 are hereby resolved against the appellant.
ISSUE NO.3
The appellant contended that the 1st and 2nd respondents did not establish any legal right in the lower court before their motion ex parte was granted. It was submitted that an applicant must have a right to be protected before an order of injunction can be granted. The appellant relied on the cases of KOTOYE v. CENTRAL BANK OF NIGERIA (1989) 1 NWLR (Pt.98) 419 and AKAPO V. HAKEEM-HABEEB (1992) 6 NWLR (Pt.247) 270 support of her contention. The appellant further argued that there was lack of extreme urgency in this case to warrant the ex parte injunctions granted. The 1st, 2nd and 3rd respondents however, disagreed with the appellant.
The remedy of injunction, being an equitable relief, is not governed by any strict rules or principles. Each case is to be determined on its peculiar facts and setting with the sole aim of ensuring that justice is not diluted but meted out in its purest form to the parties in a lawsuit. As a judicial remedy, the discretion to grant or refuse a motion ex parte for interim injunction should be exercised judiciously and judicially and not whimsically. Therefore, based on a long line of judicial authorities, the following factors should be taken into consideration when taking a decision whether to grant or to refuse an application ex parte for interim injunction:
1. That there is real urgency, not self induced urgency.
2. That prima-facie irreparable damage will be caused by failure to grant the ex parte order.
3. That a grant will preserve the res.
4. That the status quo will be maintained.
5. That the balance of convenience is in favour of the applicant.
6. That the applicant is not guilty of any inequitable conduct, such as delay.
7. That the applicant gives a satisfactory undertaking to pay damages to the adverse parry in case the court was misled to granting the ex parte injunction or the application is later found to be unfounded or frivolous.
See the cases of KOTOYE v. C.B.N. (1989) 1 NWLR (Pt.98) 419; a & 7-UP BOTTLING CO. LTD. v. ABIOLA & SONS (NIG.) LTD. (1995) 3 NWLR (Pt.383) 257 and ANIMASHAUN & ORS. V. BAKARE & ORS, (2010) 16 NWLR (Pt.1220) 513.
Because of the delicate nature of an ex parte injunction, a trial court should avoid determining the questions that may arise in the substantive suit at the stage of determining the motion ex parte. All that is required is to ensure formally that the requirements for granting an application ex parte for interim injunction have been satisfied.
In the ruling, subject matter of this appeal, the learned trial judge held, inter alia, as follows:
“After listening to A. O, Adebusoye, solicitor-General of counsel to the plaintiff/Applicants moving and after reading the affidavit of urgency and the supporting affidavit together with Exhibits A, B and C attached thereto I am satisfied that the facts placed before the court reveal a situation of urgency which is neither self-imposed or self-induced; that the balance of convenience is in favour of the plaintiff/Applicant and that irreparable damage will be done to the interest of the plaintiff/applicant if this application is refused because the plaintiff/applicant s stand to lose the sum of N63,887,447.17 to defendants/respondents for goods not supplied. In the circumstance I hereby order as prayed…”
I have examined the record of appeal, especially the motion ex parte together with the affidavit in support and the documents tendered thereby spanning pages 1-29 of the record and I have no reason to impeach or impugn the decision of the lower court having regard to the materials before it. From the unchallenged ex parte affidavit and documentary evidence, the 1st and 2nd respondents, as the applicants in the lower court, satisfied the requirements for granting the ex parte orders which they prayed for. I also resolve this issue against the appellant.
The ruling appeared against was delivered on the 18th day of August, 2003 – a period of more than 8 (eight) years ago. It would have in the best interest of the appellant to have squarely contested the motion on notice and the substantive claim in the lower court instead of wasting this length of time pursuing a frivolous appeal against interim orders of injunction rightly granted.
Without more, this appeal lacks merit and it is hereby dismissed.
The parties shall bear their respective costs.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have read in draft the judgment of my learned brother, MOORE A. A. ADUMEIN, JCA just delivered. I adopt the reasoning and conclusion therein as mine. I agree with the view expressed by my learned brother in the lead judgment that the time has come for learned counsel who accept briefs on behalf of clients to be very mindful of their duty to such clients and to the court.
To pursue an appeal against an ex-parte order of interim injunction for a period of eight years when the substantive application could have been heard and disposed of is a sheer waste of judicial time and effort which has not advanced his clients case in the slightest. Rather he has been put to further unnecessary expense and stress as the case must still be heard to its logical conclusion. There is absolutely no merit in this appeal. I join my learned brother in dismissing it. I abide by the order as to costs.
CHINWE E. IYIZOBA, J.C.A.: I read before now, the judgment delivered by my learned brother, Moore A. A. Adumein J.C.A. I agree with the reasoning contained therein and the conclusions arrived thereat. I agree that the appeal lacks merit and ought to be dismissed. I also dismiss the appeal. I abide by the consequential order as to costs in the judgment.
Appearances
E. C. EDUWU, Esq.For Appellant
AND
S. L. Onipede Esq. with F. S. Akinnibosun, Esq. (DDCL, Ministry of Justice, Ondo State) for the 1st and 2nd respondents.
ALEX A. Ajayi, Esq. for the 3rd respondent.
Yinka Ogunode, Esq. for the 4th respondent.For Respondent
