ANONGU MICHEAL & ORS v. ACCESS INVESTMENT NIGERIA LIMITED & ORS
(2018)LCN/12259(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of December, 2018
CA/J/131/2014
RATIO
JURISDICTION: THE JURISDICTION OF THE HIGH COURT
“This provision was examined very closely by a full panel of the Supreme Court in NDIC v. Okem Enterprises Ltd (2004) 10 NWLR (PT 880) 107; (2004) 18 NSCQR 42 and it was held there that it vests exclusive jurisdiction on the Federal High Court over banking matters as therein defined; that the State High Court only shares concurrent jurisdiction with the Federal High Court in matters of ordinary banker/customer relationship by virtue only of the proviso to Section 251 (1) (d).” BOLOUKUROMO MOSES UGO J.C.A
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
1. ANONGU MICHEAL
2. CHARLES OBDEMELAM
3. ISTIFANUS MAREN
4. BAYO OGUNWANDE
5. CHIEF LAMINA ADESOJI THOMAS
6. BARR. RITA OLABISI
7. TIMOTHY IDODE
8. DENNIS SWATSUK
9. MUSA POLYCARP DUNG
10. HON. AGBA STEPHEN
11. JATAU SARAH ABAKA
12. ERNEST OKUMEFUNA
13. EGONU THERESA
14. HON. FELIX AKPUNKU
15. NAOMI SIMON LAWAN
(For themselves and on behalf of all those that invested in the 1st and 2nd defendant’s Jos business) Appellant(s)
AND
1. ACCESS INVESTMENT NIG. LTD
2. ACCESS RESOURCES
3. UNION BANK OF NIGERIA PLC
4. STATE SECURITY SERVICES (SSS) Respondent(s)
BOLOUKUROMO MOSES UGO, J.C.A.(Delivering the Leading Judgment):
This appeal is from the judgment of the High Court of Plateau State of 31/01/2014 in favour of appellants as Plaintiffs. Before the High Court of Plateau State appellants as Plaintiffs claimed from the Respondents as 1st, 2nd, 3rd and 4th defendants for the following:
1. A declaration that the 1st and 2nd defendants should refund the total sum of money they collected from the plaintiffs between June and August 2011 in Jos.
2. An order for the 3rd defendant to act in the position of the 1st and 2nd defendants and deliver up or transfer to the plaintiffs all monies particularly the sum of N324,000,000.00 (Three Hundred and Twenty Four Million Naira) outstanding to the credit of the 1st and 2nd defendants account No. 0037342657 between the months of May and August 2012 being part of the monies had and received from the plaintiffs for a consideration that has failed.
3. An order setting aside the 4th defendant’s directives contained in its letter dated 27th June 2012 in which it froze the 1st and 2nd defendants’ account No. 0037342657.
4. An order compelling the 1st and 2nd defendants to pay the balance sum from what is currently left with the 3rd defendant to the plaintiffs.
5. A declaration that the 3rd defendant’s failure to observe the statutory requirements regarding the lodgment and withdrawals of huge sums of money from its office influenced the 1st and 2nd defendants to inflict damages on the plaintiffs.
6. The sum of One Billion Naira as general damages against the 3rd defendant.
7. An injunction restraining the 3rd defendant by itself, its transferring any money from the 2nd defendant’s accounts to any other person except the plaintiffs for themselves and those they represent.
Their case was that 1st and 2nd respondents in 2012 introduced an investment business in Jos, Plateau State, with the promise that each investment would attract bonuses of over 30% per week to 120% per month. Attracted by that mouth-watering but undoubtedly unrealistic promise, appellants and those they represent in the action thronged 1st and 2nd respondents’ office in Jos and paid in funds estimated at N1.5billion which 1st and 2nd respondents’ in turn deposited in their Account No. 0037342657 with 3rd respondent bank. Along the line, the State Security Service (4th respondent) arrested a man in Minna for withdrawing the sum of N15m from the said account. In the course of investigating that man, it was discovered that the balance in 1st and 2nd respondents’ said account had shrunk to a mere N324million. Eighteenth respondent (S.S.S.) thereupon directed 3rd respondent to freeze the said account of 1st and 2nd respondents. As is customary with operators of such miracle-money schemes, 1st and 2nd respondents quickly abandoned their office in Jos at about that time and have been on the run since then. That impelled appellants to commence this action.
In their amended statement of claim appellants accused 3rd respondent of deliberate infraction of banking regulations all in a bid to profit from the funds lodged by 1st and 2nd respondents. They also alleged, among others, that 3rd respondent failed to conduct necessary searches in the Corporate Affairs Commission and or scrutinize 1st and 2nd respondents’ documents before, during and after the said account was opened; that in spite of various provisions of several statutes guiding financial transactions, 3rd respondent deliberately refused to communicate to relevant security agencies the lodgments and withdrawals of huge sums of money from 1st and 2nd respondents to avoid any interruption in the benefits accruing to it from the plaintiffs’ money. They alleged, too, that the refusal of 3rd respondent to comply with relevant financial statutes gave 1st and 2nd respondents the opportunity to withdraw virtually all the funds 1st and 2nd respondents collected from them.
Whereas rogue business outfits 1st and 2nd respondents who are still on the run did not respond to the claim, appellant in a 22-paragraph amended statement of defence denied the claims, particularly the allegation that it failed to comply with financial regulations and statutes in the operation of 16th and 17th respondents’ account. It maintained that its core business is banking but that it did not have any direct dealing with 1st to 15th respondents. It claimed, too, that it complied with 18th respondent’s directive to it to freeze 16th and 17th respondents account. It denied causing 1st to 15th respondents losses or anguish, denied that 1st to 15th respondents had any cause of action against it and prayed the Court to dismiss their action.
On these averments (18th respondent also did not file a defence even as it was represented by counsel at the trial) trial commenced and was concluded with 1st to 15th respondents as plaintiffs calling two witnesses, the last of which was a staff of appellant, while appellant called one witness.
Judgment of the trial High Court
In its judgment of 31/01/2014, the lower Court, noting that relief No 1 of 1st to 15th respondents directed at only 16th and 17th respondents was not contested, made the declaration there sought that 16th and 17th respondents should refund the total sum of money they collected from 1st to 15th respondents.
It also granted Relief 3 relating to only 18th respondent (S.S.S.) for an order setting aside its directive freezing 16th and 17th respondents’ Account No. 0037342657.
Coming to Reliefs 2, 4, 5 and 6 directed at appellant, the lower Court agreed with 1st to 15th respondents that the doctrine of tracing was available to them to recover the balance of N320,000,000.00 that was still left in 16th and 17th respondents’ account with appellant. On that basis, it granted 1st to 15th respondents’ Relief Nos. 2 and 4.
It however refused their Relief Nos. 5 and 6 for a declaration that 3rd respondent’s failure to observe statutory requirements regarding lodgment and withdrawal of huge sums of money from its office influenced the 1st and 2nd respondents to inflict damages on them for which they are entitled to general damages of One Billion Naira from 3rd respondent. The trial Court believed P.W.2’s evidence that 3rd respondent installed in its offices an anti-money laundering device called Safari Application so it could not be said to have failed to observe statutory requirements regarding 1st and 2nd respondents’ lodgment and withdrawals of huge sums of money.
Appellants are dissatisfied with this part of the lower Court’s decision. They contend that the evidence of installation of Safari Application by 3rd respondent which its counsel retracted from P.W.2 during cross-examination was not pleaded by 3rd respondent so the lower Court should not have received it let alone deny them their claim of general damages of N1b on that account. They thus filed this three-ground Appeal against that part of the judgment and distilled the following three issues for determination:
1. Whether the safari application was pleaded to justify its use in determining this case.
2. Whether the appellant’s pleadings and evidence are contradictory.
3. Whether the learned trial judge was right in dismissing the appellant’s claim of general damages.
Third respondent being the only one that responded to the appeal raised a preliminary objection on the ground that appellants formulated more issues than their two grounds of appeal. In the alternative, they adopted the three issues of appellants.
At the hearing of the appeal, however, the issue turned on whether the trial Plateau State High Court even had jurisdiction to entertain the action at all as it relates to appellant given the undisputed fact that 1st to 15th respondents were not themselves its customers and their complaints against it related to banking. Mr. Solomon E. Umoh, S.A.N., for 3rd respondent citing the decision of the Supreme Court in Societe Bancaire (Nig.) Ltd v. Margarida Salvador De Luch (2005) 1 CLRN 1, (2004) 18 NWLR (PT 905) 341), which he obviously stumbled on only after filing 3rd respondent’s brief of argument, contended that the proper Court to entertain the claims of appellants against 3rd respondent was the Federal High Court so the proceedings before the Plateau State High Court and its judgment as it relates to it (3rd respondent) are a nullity.
Even though Mr. Charles Obishai, S.A.N., for appellants replied there and then that Societe Bancaire (Nig.) Ltd v. Margarida Salvador De Luch was inapplicable to this case, he later resorted to an unconventional approach of forwarding to this Court a further 5-page written address to justify the jurisdiction of the Plateau State High Court to entertain the case.
This challenge of the jurisdiction of the lower Court shall undoubtedly take centre stage, for it is only when it is decided in favour of appellant that there will be need to proceed further to determine its complaint in this appeal. If the lower Court did not have jurisdiction over 3rd respondent, whatever it said correctly or wrongly about 3rd respondent and whether the disputed Safari Application was admissible will be of no moment as the proceedings against 3rd respondent will remain a nullity ab initio. For this reason, I want to go straight into the issue of the lower Court’s jurisdiction. But before doing that, I need to first dispose of Mr. Obishai’s suggestion, which he rather made only obliquely, that this issue was not addressed in 3rd respondent’s brief of argument in the form Mr. Umoh put it at the hearing of the appeal with the support of Societe Bancaire (Nig.) Ltd v. Margarida Salvador De Luch (2005) 1 CLRN 1, (2004) 18 NWLR (PT 905) 341 so it was a new issue and appellants were ambushed by 3rd respondent in the manner its counsel raised it.
It does not appear to me that Mr. Obishai who, as said earlier, even tried at the hearing to distinguish at the hearing case of Societe Bancaire (Nig.) Ltd v. Margarida Salvador De Luch is correct. In the first place, it does not appear to me that the issue raised by Mr. Umoh for 3rd respondent is a completely new issue. His argument rather seems to me a new line of argument, or rather adding a new dimension, to his complaint in the lower Court that appellants were not parties to its banking contract with 1st and 2nd respondents so they cannot properly sue it on that contract and the lower Court lacked jurisdiction to entertain their suit against it. That argument, the weight of authorities suggest, does not constitute arguing a new issue: see Ogunbadejo v. Owoyemi (1993) 1 NWLR (PT 271) 517 @ 528; Akinduro v. Alaya (2007) 14 NWLR (PT 1057) 312 @ 337 (S.C.); Cedar Stationeries Ltd. v. IBWA (2000)15 NWLR (PT 690) 338 @ 347-548 (S.C). In any event, the contention of Mr. Umoh for 3rd respondent directly challenges the jurisdiction of the lower Court over the claims of appellants as they related to 3rd respondent; and being a jurisdictional challenge, it can be raised at any time, in any manner and any how including even orally: see Petrojessica Enterprises Ltd v. Leventis Technical Co. Ltd (1992) 5 NWLR (PT 224) 675 @ 693; Gaji v. Paye (2003) FWLR (PT 163) 1 @ 13; Oyakhire v. State (2007) ALL FWLR (PT 344) 1 @ 10; Akegbejo v Ataga (1998)1 NWLR (PT 534)459 @ 466.
In fact, in Braithwaite v. Skye Bank Plc (2013) 5 NWLR (PT 1346) 1, the Supreme Court, in allowing respondent (Skye Bank Plc) to challenge before it by preliminary objection the validity of the originating summons by which appellant (Mr. Tunji Braithwaite) commenced its action against it at the trial Court, roundly rejected appellant’s contention that respondent having not filed an appeal to raise a ground challenging the jurisdiction of the trial Court cannot properly challenge its jurisdiction by way of preliminary objection at the Supreme Court. In unanimously upholding the preliminary objection of respondent, Fabiyi, J.S.C., took time to further clear the air by saying (at p. 19) that objection to jurisdiction ‘can be raised at any time and in any manner deemed fit by the parties or even by the Court.’
That is the true position long settled by a line of cases too long to mention here.
And coming back to the issue, it is settled that if a Court lacks jurisdiction its proceedings remain a nullity ab initio no matter how well conducted and decided. See Braithwaite v. Skye Bank Plc (2013) 5 NWLR (PT 1346) 1. So the question remains: did the Plateau State High Court possess the necessary jurisdiction to entertain the claims of appellants as they related to 3rd respondent? Whether a Court possesses jurisdiction over a claim is determined by the writ of summons and averments in the statement of claim.
I have already reproduced the claims of appellants against 3rd respondent. Central to those reliefs is 3rd respondent’s alleged ‘failure to observe statutory requirements regarding the lodgment and withdrawals of huge sums of money from its office influenced the 1st and 2nd defendants to inflict damages on the appellants.’
These alleged failures can only mean Statutes and subsidiary Regulations touching banking and banking measures. They left no one in doubt about that when they further proceeded to elaborate in paragraphs 17, 18, 19, 20, 21, 22, 23, 24 and 25 of their amended statement of claim as follows:
17. The 3rd defendant ignored the letter of the 4th defendant that directed them to freeze the said account and allowed the 1st and 2nd defendants to continue withdrawing the huge sums of money.
18. The 3rd defendant like any other bank in Nigeria carries on electronic banking through which a blocked account anywhere in Nigeria will be blocked in all its branches.
19. The plaintiffs aver that the 3rd defendant in its business to solicit for fund to increase its liquidity and capital base so as to obviate the hammer of the apex bank (CBN) approached the 1st to 2nd defendants to open and operate the said account through this means the 3rd defendant had over N1.5billion Naira of the plaintiff?s money aforementioned.
20. The Plaintiffs state that the 3rd defendant failed to conduct searches in the Corporate that appellant failed to conduct searches in the Corporate Affairs Commission and or scrutinize the documents their documents before, during and after the said account was opened as required by banking guidelines
21. The Plaintiffs aver that in spite of various provisions of several statutes guiding financial transactions, appellant deliberately refused to communicate to relevant security agencies the lodgments and withdrawals of huge sums of money from the aforementioned account by the 1st and 2nd defendants to avoid any interruption in the benefits accruing to it from the plaintiffs? money.
22. The plaintiffs further aver that the refusal of 3rd defendant to comply with relevant financial statutes gave 1st and 2nd defendants the opportunity to withdraw virtually all the money collected from the plaintiffs.
23. The plaintiffs will contend at the trial that the 3rd defendant knew of the activities of the 1st and 2nd defendants as the 3rd defendant was frequenting the offices of the 1st and 2nd defendants for the arrangement of the deposits of funds received from the plaintiffs to the 3rd defendant.
24. The Plaintiff will aver that as a commercial bank, the 3rd defendant tremendously benefitted in the utilization of the Plaintiffs’ funds deposited with it as it was trading and granting facilities to its customers and raking in huge interest benefits to its advantage.
25. The actions of the 1st, 2nd and 3rd defendants have caused trauma, anguish, high blood pressure, stroke and other manner of sicknesses to the plaintiff.
Now, banks and banking is item No. 6 in the Exclusive Legislative List in the 2nd Schedule of the 1999 Constitution reserved for the Federal Government, and like every other item in that List, jurisdiction is conferred by Section 251(1) (d) of the 1999 Constitution exclusively in the Court of the Federal Government – the Federal High Court. Section 251(1) (d) of the 1999 Constitution reads thus:
S.251(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.
(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, coinage, 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.
This provision was examined very closely by a full panel of the Supreme Court in NDIC v. Okem Enterprises Ltd (2004) 10 NWLR (PT 880) 107; (2004) 18 NSCQR 42 and it was held there that it vests exclusive jurisdiction on the Federal High Court over banking matters as therein defined; that the State High Court only shares concurrent jurisdiction with the Federal High Court in matters of ordinary banker/customer relationship by virtue only of the proviso to Section 251 (1) (d).
That position has been followed religiously by the apex Court and this Court in subsequent cases. In Societe Bancaire (Nig.) Ltd v. Margarida Salvador De Luch (2005) 1 CLRN 1, (2004) 18 NWLR (PT 905) 341 the facts were very similar to this case. There the plaintiff, a German lady, was inveigled by two fraudsters, who promised her a contact worth millions of dollars to build the Central Bank of Nigeria, to deposit the sum of $500,000.00 into their account with the appellant bank. Upon realizing that there was no such contract and she had been simply duped, she commenced action in the Lagos State High Court against the appellant bank for recovery of her funds. Objection was raised by the bank to the jurisdiction of the trial High Court of Lagos to the effect that plaintiff’s claim was a banking matter and since the plaintiff was not its customer to enable the High Court of Lagos State exercise concurrent jurisdiction with the Federal High Court under the proviso to Section 251(1) (d) of the 1999 Constitution, the action was wrongly brought before the State High Court. That argument was upheld by the trial High Court of Lagos but upturned by this Court on appeal. Upon further appeal, this Court’s decision was set aside by the apex Court in a unanimous decision, with the Court (Pats-Acholonu, J.S.C.) holding thus at p. 358:
“The respondent had lampooned the appellant for not exercising an accepted high standard in opening account for the two men. Holding therefore as I do that the matter to my mind touches on banking generally but certainly not a bank customer relationship, it is difficult not to conclude that this case ought to have been brought squarely before the Federal High Court as it is obvious it falls within the intendment of the Primary Law as reflected in Section 251(1) (d) of the Constitution but not including the portion with the proviso. That being the case, it is my view that this matter should be or ought to be brought squarely before the Federal High Court, which ought to exercise jurisdiction in this case.”
That is also exactly the position here as it concerns appellants’ claims against 3rd respondent, and even the contention of Mr. Obishai that appellants relied on the equitable doctrine of tracing, that they traced their funds to appellant’s bank and so could sue it under that doctrine, does not make any difference. Jurisdiction is conferred on Courts by the Constitution of this country and statutes and not by doctrines/principles of law or equity. In truth Mr Obishai simply reproduced the argument of Intercontinental Bank before this Court in Ecobank Nig Plc v. Intercontinental Bank (2012) 5 NWLR (PT 1293) 219 @ 240 which this Court Coram Okoro, J.C.A. (as he then was), Hussein Mukhtar and Danjuma, JJ.C.A, correctly rejected, saying: “Before the Lagos State High Court can exercise its equitable jurisdiction of tracing, it must first have jurisdiction to hear the matter before it. This is not the case here. This Court then went to order that,the ruling of the Lagos State High Court delivered on 10th February 2009 by Hon. Justice A. Olateru-Olagbegi as it touches the appellant is hereby set aside.”
That is again the position in this case too. In fact, even if appellants were customers of 3rd respondent, which they are not, their action alleging non-compliance by 3rd respondent with banking regulations can only be entertained by the Federal High Court, and not the Plateau State High Court.
For all the foregoing reasons, I hold that this appeal lacks merit; the High Court of Plateau State lacked jurisdiction to entertain appellants’ claims against 3rd respondent so whatever evidence that was admitted by it relating to 3rd respondent, including the evidence from P.W.2 relating to installation of Safari application elicited by 3rd respondent under cross-examination and how that amounted to complying with banking/financial regulations, is neither here nor there, appellant?s case against 3rd respondent being a nullity ab initio. In the result, this appeal lacks merit; it fails and is hereby dismissed. Parties shall bear their costs.
ADZIRA GANA MSHELIA, J.C.A.: I had the advantage of reading in draft the lead Judgment of my learned brother Ugo, J.C.A just delivered. I agree with the reasoning and conclusion, that the appeal lacks merit and ought to be dismissed. I too dismiss the appeal and abide by the consequential orders contained in the lead Judgment, inclusive of costs.
TANI YUSUF HASSAN, J.C.A.: I agree.
Appearances:
Charles Obishai, SAN with him, Dickson Otuagoma, Esq., Eric Goler, Esq., Miss Sabina Davou and Miss Blessing OchayiFor Appellant(s)
Solomon Umoh, SAN with him, E.E. Ede, Esq., E.O. Oyadiji, Esq., Yetunde Nze, Esq. and F.J. Kumsat, Esq. for 3rd respondent.
M.H. Moddibo Esq. for 4th respondent.
1st and 2nd respondents were unrepresentedFor Respondent(s)
