UNION BANK OF NIGERIA PLC & ANOR v. MR. THOMAS I. AGBONKESE
(2019)LCN/12926(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2019
CA/B/369/2016
RATIO
COURT AND PROCEDURE: WHAT DETERMINES THE CAUSE OF ACTION
“…It is imperative to note that a cause of action is determined by reference to the Plaintiff’s Statement of Claim. See ACTION CONGRESS V. INEC (2007) 18 NWLR (Pt.1065) 50 where the apex Court clearly stated thus:
The jurisdiction of the Court is determined by the cause of action of the Plaintiff as endorsed on the writ of summons or from both the writ of summons and the statement of claim.” PHILOMENA MBUA EKPE, J.C.A.
EVIDENCE: WHERE A FACT GIVEN AS EVIDENCE IS UNCHALLENGED
“It is however settled Law in a number of decided authorities that unchallenged or uncontroverted fact or facts need no further proof if moreso these facts are given in evidence. SEE HILLARY FARMS LTD. & ORS V. MANTRA & ORS. (2007) 14 NWLR (PT. 1054) 210; PHOENIX MOTORS LTD. V. OJEWUNMI & 2 ORS (1992) 6 NWLR (PT.248) 501 @ 508; EGBUNIKE V. ACB LTD (1995) 2 NWLR (PT.375) 34 @ 53. I also subscribe to the view held by the trial Court that where only one party adduces evidence, minimum proof is required of him in order for the claim to succeed…”PHILOMENA MBUA EKPE, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
1. UNION BANK OF NIGERIA PLC
2. ASSET MANAGEMENT CORPORATION OF NIGERIA – Appellant(s)
AND
MR. THOMAS I. AGBONKESE – Respondent(s)
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the High Court of Justice sitting in Benin City, Edo State Judicial Division, delivered on the 22nd of September 2014 and also the final Judgment delivered on the 19th of November 2014 in Suit NO. B/488/2010 wherein the trial Court granted the claim of the Respondent/Claimant against the Appellants/Defendants.
By a writ of summons dated the 23rd June 2010, the Plaintiff/Respondent sued the Defendants/Appellants claiming the following reliefs:
(a) A declaration that the sum of N56,795,605.16 (fifty Six million, seven hundred and ninety-five thousand, six hundred and five (sic) naira, sixteen kobo) claimed by the Defendants as outstanding balance as at May, 2010 is outrageous, arbitrary and erroneous.
(b) An Order directing a thorough reconciliation of the loan accounts between the Defendant and the debtor guaranteed by the Plaintiff which are:
1.1060000011 with Akpakpava Road Branch, Benin City.
2. 1020003845 with Akpakpava Road Branch, Benin City.
(c) An Order stopping the various interest charges on the loan accounts.
(d) An Order of perpetual injunction restraining the Defendants, her servants, agents, privies and or whosoever, from entering, advertising for sale, selling or tampering with the plaintiff’s proprietary rights over his property known as No.73 Murtala Mohammed way, Benin City covered by Certificate of Occupancy No. EDSR 9695 dated 12th day of March, 1990 which was used as collateral security.
The relevant facts of this case are thus:
The story line of the Respondent is that the claimant had liquidated the loan to Agbonkhese & Co. guaranteed by him and that the Defendants ought to have returned his title documents.
The contention of the Defendants/Appellants however, is that the trial Court was in error in assuming jurisdiction to hear and determine the Suit since the claims by the Plaintiff/Respondent mainly consist of declaration and injunction against the actions/decision of an agency of the Federal Government.
The Defendants entered a conditional appearance on 4/3/11 and after which their appearances were on and off.
On the 15/1/14, the claimant opened his case and testified that he is the Chief Executive of Agbonkhese & Sons who is a customer of the 1st Defendant at her Akpakpava Branch Benin City operating account No. 235106-0000011 and that he stood as guarantor to the said company which took a loan of N8,000,000.00 and overdraft facility of N10,000,000.00. That he guaranteed the company with his property at No. 73, Murtala Mohammed way Benin City and deposited his title documents. He revealed that the company had a good relationship with the 1st Defendant being one of the founding customers of Guinness Nigeria PLC where he collects and receives products from Guinness Nig. PLC for distribution and sale to the general public. That after liquidating the loan sum, he heard that the 1st defendant was making frantic efforts to sell his property at No. 73, Murtala Mohammed Way, Benin City and that necessitated the institution of the action. The claimant was not cross-examined rather the Defence counsel brought an application to dismiss the suit for lack of jurisdiction. The application was considered and refused by the trial Court and defence counsel did not come to Court after his application and so were foreclosed with leave of Court.
In a considered Judgment delivered on the 19th of November 2014, the learned trial Judge found as a fact that the Defendants/Appellants had been duly served and were very aware of the case before the Court and that the claimant had proved his case. The trial Court then entered Judgment in the claimant’s favour and granted the reliefs sought by the claimant/Respondent.
Dissatisfied with the Judgment of the High Court, the Appellants appealed to this Court by a Notice of Appeal filed on the 29th of June 2012 wherein they raised three grounds of appeal.
The Appellants from the grounds of appeal distilled the following issues for determination.
1. Whether the lower Court was right in assuming jurisdiction to hear and determine this Suit having regard to the fact that the suit consists mainly of claims for declaration and injunction against the action/decision of an agency of the Federal Government.
2. Assuming the lower Court had jurisdiction to try this matter, was the lower Court also right when it failed to consider and make a finding on the Defendants/Appellants pending application for leave to file their defence and deem the already filed statement of defence as properly filed before delivering its final Judgment on the 19th November 2014.
3. Whether having regard to the evidence led in this suit the Plaintiff/Respondent has sufficient proof of his case to be entitled to the reliefs sought in this suit.
The Respondent also on his part formulated three issues in a Respondent brief of argument dated 21st February, 2017 but filed on 23rd February 2018 to wit:
1. Whether the trial Court was right in assuming jurisdiction to hear and determine this suit against the actions of the 1st Defendant, later passed on to the 2nd Defendant, an agency of the Federal Government.
2. Whether the failure of the trial judge to hear an application which is not brought to his notice or was not in the Court’s file amounted to a breach of fair hearing.
3. Whether the Claimant has sufficiently proved his case in regard to the evidence before the Court to be entitled to the reliefs sought in this case.
I have carefully considered both sets of issues which I presume are similar in meaning and the way they have been couched. I have however decided that issues one (1) and three (3) as formulated by the Respondent appear more appropriate in the determination of this appeal and these will form issues one and two in this discourse.
1. Whether the trial Court was right in assuming jurisdiction to hear and determine this suit against the actions of the 1st Defendant, later passed on to the 2nd Defendant, an agency of the Federal Government.
2. Whether the Claimant has sufficiently proved his case in regard to the evidence before the Court to be entitled to the reliefs sought in this case.
On issue one, the learned counsel to the Appellants stated that the findings of the lower Court in its ruling of 22nd September 2014 runs riot and is violent to the provisions of Section 251 (1) (r) of the 1999 Constitution. He further argued that the instant case cannot successfully berth on the shores of the High Court of Edo State.
In reply learned counsel to the Respondent submitted that it is the claim as endorsed on the writ of summons or statement of claim that must be considered on the issue of jurisdiction. He further opined that where the jurisdiction of the Court to entertain a cause or matter is challenged, it is the originating process that would be examined in order to determine such issue. He further submitted that the trial Judge had judiciously examined the writ of summons and their statement of claim to conclude that the Court had jurisdiction to hear the matter before proceeding to hear same.
On issue two, learned counsel to the Appellants submitted that the Respondent has sufficiently proved his case to be entitled to the reliefs sought by them. That the Court cannot grant declarative reliefs without credible sufficient evidence.
In reply, learned counsel to the Respondent argued that where only one part calls evidence, minimum proof is required of him in order for the claim to succeed. He further stated that a party who refuses or fails to take advantage of the fair hearing process created by the Court cannot turn around to accuse the Court of denying him fair hearing. That the Defendants went into comatose from which they never woke. He further submitted that the fair hearing principle entrenched in Section 36 of the 1999 Constitution is not for the weakling, the indolent or the lazy litigant and urged the Court to resolve the issue in favour of the Respondent.
RESOLUTION:
ISSUE ONE:
The history of the case is that on the 15th January 2014, the Claimant/Respondent opened his case and testified.
The Claimant/Respondent was not cross-examined rather the Appellants filed an application to dismiss the suit for lack of jurisdiction. The application was considered and refused by the trial Court. Appellants did not come to Court after their application was refused and so were foreclosed. The then learned trial Judge accordingly entered Judgment in favour of the Claimant/Respondent pursuant to their amended statement of claim, which was dated on 27th of June, 2012.
The Defendants then filed a Notice of Appeal being dissatisfied with the Ruling of the 30th of September 2014 and the Judgment was delivered on the 19th day of November 2014.
Like I stated earlier, the grounds of appeal and the issues there from all border on the claim that the State High Court has no jurisdiction to entertain the matter and the Court is duty bound to hear applications before delivery of Judgment. To begin with Section 251(1) (D) of the Constitution makes it explicit that the transaction between individual customers and the Bank can be heard and determined by both the Federal and State High Court, thus conferring jurisdiction on both Courts.
Without much ado, it is elementary that claims or dispute determine jurisdiction. It is worthy of note that the transaction between 1st Appellant and Respondent necessitated the above suit to the effect that it is a Bank/Customer transaction and that with or without the 2nd Appellant the Court can act judiciously on the claim and determine the matter one way or the other.
It is imperative to note that a cause of action is determined by reference to the Plaintiff?s Statement of Claim. See ACTION CONGRESS V. INEC (2007) 18 NWLR (Pt.1065) 50 where the apex Court clearly stated thus:
The jurisdiction of the Court is determined by the cause of action of the Plaintiff as endorsed on the writ of summons or from both the writ of summons and the statement of claim.
In the instant case, the claim of the Appellant of the lower Court borders strictly on a Banker/Customer relationship which either the Federal High Court or the State High Court is clothed with jurisdiction to determine the matter.
The immediate materials a Court ought to look at are the writ of summons and the averments in the statement of claim.
Per Galadima JSC at P.118 para U-EE in the case of KAKIH V. PDP & ORS(2014) (238) LRCN (Pt. 79) the apex Court further emphasized: that it is not in all cases in which the Federal Government or its Agency is a party in the suit that the Federal High Court must willy-nilly without considering the nature of the aggrieved party’s claim assume jurisdiction.
It cannot be over emphasized that the most relevant and important consideration is the Plaintiff’s claim. See the case of FELIX ONUORAH V. K.R.P.C. (2005)6 NWLR (Pt.2911) 393 @ 408.
In the instant case, the transaction that gave birth to the suit was simply a Banker/Customer transaction that ordinarily does not fall under the expected matters limited to the jurisdiction of the Federal High Court. Section 251(1)(d) of the 1999 Constitution makes it explicitly clear that a transaction between a customer and a bank does not fall within the exclusive jurisdiction of the Federal High Court. This preposition of the Law empowers both the State High Court and the Federal High Court to exercise jurisdiction in disputes between an individual customer and the bank. See FMB of NIG. LTD. V. NDIC (1999)2 NWLR (Pt.591) 333.
In SKYE BANK PLC V. IWU (2017) 16 NWLR (PT.1590) PG 24 @ 56, it was held that Courts are creatures of statute and their jurisdiction is prescribed and circumscribed by the state or Constitution that created them. Going through the Record of Appeal and X-raying the entire claims by both the Appellants and Respondent, it is very clear to me that the cause of action revolves round a previous proceeding at the State High Court involving a Banker/Customer relationship.
Subject to the foregoing, it is my ardent view that the State High Court can exercise jurisdiction in relation to the instant case. In the circumstance, this issue is resolved against the Appellants and in favour of the Respondent.
ISSUE TWO:
Whether the Claimant has sufficiently proved his case in regard to the evidence before the Court to be entitled to the reliefs sought in this case.
On a careful and critical examination of the record of proceedings at the lower Court, it is however observed that the Appellants did not file any statement of defence after their conditional appearance had been entered. Almost all subsequent adjournments were at the instance of the Appellants herein. There is no gainsaying the fact that the fundamental principle of Law to wit: Equity does not aid the indolent? is still very rife in our Law Courts. It is also noteworthy that a claimant has the burden/duty to prove his case on the preponderance of evidence before the Court.
In the instant case, the claimant at the lower Court opened and closed his case while the Defendants/Appellants failed to open their case due to their continuous absence from Court. The question now is: did the Claimant/Respondent prove his case on the balance of probability? The Claimant in essence told the Court below that he had paid off his loan and requested to be given back his title documents.
The Respondent adduced credible evidence before the lower Court arguing that his Bank facility of 18 Million Naira had since been paid off. He relied on Exhibit C which is the Bank?s statement of account. The Appellants on the otherhand, having failed to attend Court and also having not given evidence either through pleadings or their VIVA voce evidence in the open Court are presumed to have accepted the facts adduced by the Claimant/Respondent.
The lower Court then had no choice than to deem such uncontroverted evidence acceptable before the Court.
It is however settled Law in a number of decided authorities that unchallenged or uncontroverted fact or facts need no further proof if moreso these facts are given in evidence. SEE HILLARY FARMS LTD. & ORS V. MANTRA & ORS. (2007) 14 NWLR (PT. 1054) 210; PHOENIX MOTORS LTD. V. OJEWUNMI & 2 ORS (1992) 6 NWLR (PT.248) 501 @ 508; EGBUNIKE V. ACB LTD (1995) 2 NWLR (PT.375) 34 @ 53. I also subscribe to the view held by the trial Court that where only one party adduces evidence, minimum proof is required of him in order for the claim to succeed. See MODUPE V. THE STATE (1988) 9 SCNJ 1. In the instant case, the Defendants/Appellants failed to file any pleadings and therefore are presumed to have accepted the facts as adduced by the Claimant/Respondent. This is also coupled with the fact that there is overwhelming evidence on record that the said loan of 18 Million Naira was paid off by the Respondent.
The lower Court however found as a fact that the Appellants were duly served and were quite aware of the next adjourned date, hence had no reason to be absent from Court. In conclusion the Respondent had proved his case, and this propelled the trial Court to enter Judgment in his favour. The Appellants had ample opportunities to challenge the evidence adduced by the Respondent but waived their right through their deliberate and continuous absence from Court leaving room for the evidence of the Respondent to go unchallenged.
The position of the Law as regards unchallenged evidence is that whenever a piece of evidence is neither attached nor discredited, and it is relevant to the issues joined, it ought to be relied upon by the Court. See AMAYO V. ERINMWINGBOVO (2006)11 NWLR (Pt.992) 699.
Also in the case of BABA V. NIGERIAN CIVIL AVIATION & ANOR (Pt. 192) 388. The Apex Court per Nnaemeka Agu JSC stated as follows:
?whenever on an issue evidence comes from one side and this is unchallenged and uncontradicted, it ought normally to be accepted on the principle that there is nothing to be put on the other side of the balance, unless of course it is of such quality that no reasonable tribunal should have believed it so, when evidence goes one way, the onus of proof is discharged on a minimal of proof.?
This issue is therefore resolved in favour of the Respondent against the Appellants.
In sum, it is my ardent view that this appeal has no scintilla of merit, it fails and is hereby dismissed in its entirety. Accordingly the Judgment of the lower Court delivered on the 19th day of November 2014 in Suit No. B/488/10 is affirmed.
Cost is awarded, the Respondent in the sum of N50,000.00 against the Appellants.
Appeal Dismissed.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read before now the judgment just delivered by my learned brother PHILOMENA MBUA EKPE, JCA. I agree with the reasoning and conclusion therein that the original claim filed by the Respondent is a claim bordering on ordinary banker customer relationship which can be tried by either the Federal High Court or State High Court. Thus, the trial Court had the jurisdiction to hear the case. I also find no merit in this appeal and it is hereby dismissed. Appeal Dismissed.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the privilege of a prior perusal of the lead judgment just delivered by my learned brother, P.M. EKPE JCA.
The two issues formulated for determination have been adequately addressed and I agree with the reasoning and conclusion reached therein.
I also hold that this appeal fails and it is accordingly dismissed.
I abide by the consequential orders made in the lead judgment inclusive of the orders as to costs.
Appearances
N.B.A. MofunanyaFor Appellant
AND
E.E. Otoghile with him, V.O. Okhiure and L.O. AlenkheFor Respondent
