CORA FARMS & RESOURCES LIMITED v. UNION BANK PLC (2019)

CORA FARMS & RESOURCES LIMITED v. UNION BANK PLC

(2019)LCN/13542(CA)

In The Court of Appeal of Nigeria

On Monday, the 24th day of June, 2019

CA/L/301/2017

RATIO

JURISDICTION: INGREDIENTS

Without doubt, jurisdiction is the live-wire of every form of adjudication; no Court or Tribunal can entertain and determine the matter unless it is empowered under the relevant statutes to so do. See MADUKOLU v NKEMDILIM (1962) 1 ALL NLT 587 at 594, where the Apex Court held as follows:
A Court is said to be competent when:
(a) It is properly constituted as regards members and qualification of the members of the bench, and no member is disqualified for one reason or another;
(b) 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
(c) The case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are nullity however well conducted and decided; the defect is extrinsic to the adjudication.PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

JURISDICTION: IMPORTANCE
It is hardly worth restating the position of the law, which seems to me, as aptly stated by the Supreme Court, per BELLO, CJN in the well-known case of UTIH v ONOYIVWE (1991) SCNJ 25 at 49, that:
Jurisdiction is the blood that gives life to the survival of an action in a Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

JURISDICTION: BANKING MATTERS: WHETHER THE FEDERAL HIGH COURT HAS EXCLUSIVE JURISDICTION IN BANKING MATTERS

While considering the issue at hand, the Supreme Court, per UWAIFO, JSC in NDIC (LIQUIDATOR OF ALLIED BANK OF NIGERIA PLC) v OKEM ENTERPRISES LIMITED & ANOR (2004) LPELR 1999 (SC) 53 to 28, Paras GA, without any modicum of ambiguity, stated the correct position of the law in the following words:
It can be seen that Section 251(1)(d) was meant to give the Federal High Court exclusive jurisdiction in “banking” in the wide sense to involve all banking transactions: see the definition given in the Black’s law Dictionary (supra). That conclusion cannot be resisted in view of the open-ended text of that provision. But having contemplated conferring exclusive jurisdiction on the Federal High Court in all the items stipulated in paragraph (d), which by the language used was indeed conferred, the law-giver then introduced a proviso thus:
“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.”
In considering the effect of the proviso in question, the import of the exclusive jurisdiction conferred on the Federal High Court under Section 251(1)(d) of the 1999 Constitution should not be lost sight of. The section begins with, “Notwithstanding anything to the contrary contained in this Constitution …” This takes account of the jurisdiction of the High Court of a State in Section 272 (1) of the 1999 Constitution which says, “Subject to the provisions of Section 251 and other provisions of the Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue. This is not a provision conferring exclusive jurisdiction on the State High Courts. Section 251 (1)(d) confers exclusive jurisdiction on the Federal High Court in specified matters notwithstanding section 272(1).
As has been observed, Section 251(1) of the 1999 Constitution begins with “Notwithstanding anything to the contrary contained in this Constitution” while Section 272(1) is specifically made “subject to the provisions of Section 251.” When the term notwithstanding is used in a section of a statute, it is meant to exclude an impinging or impeding effect of any other provision of the statute or other subordinate legislation so that the said section may fulfill itself. It follows that, as used in Section 251(1) of the 1999 Constitution, no provision of that Constitution shall be capable of undermining the said section. In regard to Section 272 of the Constitution, Section 251 is directly relevant in that the former is made subject to it. The expression “subject to” means liable, subordinate, subservient, or inferior to; governed or affected by; provided that or provided;’ answerable for: see Black’s Law Dictionary, 6th edition, page 1425. It must therefore be understood that subject to introduces a condition, a restriction, a limitation, a proviso: see Oke v. Oke (1974) 1 All NLR (Pt. 1) 443 at 460. It subordinates the provisions of the subject section to the section empowered by reference thereto and which is intended to be diminished by the subject section: see LSDPC v. Foreign Finance Corporation (1987) 1 NWLR (Pt. 50) 413 at461; Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622 at 655. The expression generally implies that what the section is subject to shall govern, control and prevail over what follows in that subject section of the enactment, so that it renders the provision to which it is subject to conditional upon compliance with or adherence to what is prescribed in the provision referred to: see Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 at 542,565,580; ldehen v. ldehen (1991) 6 NWLR (Pt. 198) 382 at 148; Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139 at 163-164. Plainly, the proviso in question in Section 251(1)(d), to put it in simple analysis, says that the Federal High Court will have exclusive jurisdiction in banking matters but when what is involved is individual customer and his bank transaction, the Federal High Court shall not have exclusive jurisdiction. Understandably, that was to recognize the jurisdiction of the State High Courts had been exercising in such matters which Section 272(1) of the Constitution impliedly preserves. The High Court of a State can only exercise jurisdiction in any aspect of such specified matters to the extent that the proviso in Section 251(1)(d) permits. The said proviso cannot be interpreted to have the effect of conferring exclusive jurisdiction on the State High Courts and completely taking away the jurisdiction of the Federal High Court to entertain causes and matters relating to individual customer and bank transactions as was erroneously decided by the Court below and unsuccessfully argued before this Court by Chief Clarke. Alhaji Ibrahim, SAN has proffered clear argument in the appellant’s brief in this regard.PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

JURISDICTION: IN CONSIDERING WHETHER A COURT HAS JURISDICTION, THE COURT WILL CONSIDER THE CLAIMANTS CLAIM

JUSTICES:

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria

Between

CORA FARMS & RESOURCES LIMITED – Appellant(s)

AND

UNION BANK PLC – Respondent(s)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): The Appellant as Claimant at the lower Court vide a Writ of Summons and Statement of Claim dated 10th May, 2011 claimed against the Respondent against the following reliefs:
“a. That the purported assignment of the Claimant’s facility with the Defendant be declared and illegal.
b. An Order that the Defendant should revert the Claimant’s account to its Bank, not the purported 3rd party.
c. An Order of specific performance be ordered against the Defendant to adhere to the facility contained in the Defendant’s letter to the Claimant.
d. The cost of the action.

In opposition, the Respondent filed its Statement of Defence/Counter-claim dated 9th December, 2011, wherein the following reliefs were sought:
a. The sum of N75, 008,441.88 as the outstanding indebtedness of the Claimant on the account with the Defendant/Counter-Claimant as at 31st December, 2010.
b. Interest on the said amount at the rate of 22% from 30th December, 2010 till the date of the judgment and thereafter at the rate of 10%.

c. N5,000,000.00 (Five Million Naira only) as general damages for breach of contract.
d. Cost of this action.

Upon filing of the respective pleadings and conclusion of trial and adoption of final written address, the Federal High Court, coram IDRIS, J., dismissed the Claimant’s suit in its entirety and entered judgment for the Defendant/Respondent as per its counter-claim.

Aggrieved with the decision of the learned trial judge, the Appellant approached this Court, vide a Notice of Appeal dated 16th November, 2015 and filed 17th November, 2015. In compliance with the Rules of this Court, parties filed their respective brief of argument. Appellant’s brief of argument settled by Ademola Adeyemi, Esq., and Olufunke Ogunfowora, Esq., is dated and filed 24th April, 2017 and three issues were formulated for determination thus:
1. Whether as a result of the Banker/Customer relationship that exist between the Claimant/Appellant and the Defendant/Respondent, the Learned Trial Judge was right to have assumed jurisdiction to entertain this suit as he did and if not, whether the whole proceedings at the lower Court is a nullity in the

circumstance of this case
2. Whether it is in the interest of justice for His Lordship Justice M.B. Idris to discountenance all relevant and admissible documentary evidence which were admitted on oath, tendered and admitted before him, which were also frontloaded and attached to the Claimant/Appellant’s Witness Statement on Oath as being defective and if not, whether the Learned trial Judge should have considered the evidence led in chief and also evidence given upon cross examination by the Claimant/Appellant’s only witness in the circumstance of this case?
3. Whether the judgment of the Learned trial Judge delivered on the 12th day of November, 2015 against the Claimant/Appellant is wrongly evaluated and against the weight of evidence, if so, whether the judgment is pervasive and a miscarriage of justice in the circumstance of this case?

In the same manner, the Respondent’s brief of argument dated and filed on 17th September, 2018 but deemed 18th September, 2018, Kayode Ajekigbe, who prepared and settled the brief of argument formulated three issues as follows:
1. Whether as a result of the Banker/Customer relationship

that exists between the Plaintiff/Appellant and the Defendant/Respondent, the learned trial Judge was right to have assumed jurisdiction to entertain this suit as he did?
2. Whether the learned trial Judge was right to have dismissed the Plaintiff/Appellant’s claim for want of evidential support or proof?
3. Whether the judgment of the learned trial Judge is not wrongly evaluated and against weight of evidence?

Save for semantics, it appears to me that the issues formulated by the parties are the same, even as it is clear from the arguments canvassed that the Respondents submissions in its Brief of Argument were made in direct response to the arguments canvassed by the Appellant’s counsel in his brief. I shall therefore consider the three issues submitted for the determination of the appeal by the Appellant.

SUBMISSIONS OF COUNSEL
Submitting that the issue of jurisdiction is material to the determination of a case and that when raised, it must be resolved first, Appellant’s counsel relied on NNPC V SLB (2008) VOL. 10 SCLR (PT 10) CA 223 at 249; NDIC v CBN [2002] 7 NWLR (PT 760) 271. He further relied on

MADUKOLU v NKEMDILIM (1962) 1 ALL NLR 589 before relying on the decision in NKUMA v ODILI [2006] 6 NWLR (PT 977) 587 at 608, PARAS DG on the point that it is the Plaintiff’s claim that the Court considers in order to determine the issue of jurisdiction.

After reproducing the reliefs sought in the Statement of Claim by the Appellant and the Counter – Claim by the Respondent, Appellants counsel submit that all the reliefs were for actions based on contract, breach of contract, specific performance and on loan in the parties capacity as banker – customer relationship. Referring to Section 251(1) (d) of the 1999 Constitution, counsel argued that the Federal High Court does not have jurisdiction to entertain the matters constituted in the said reliefs. He referred to the decision in FELIX ONUORAH v KRPC [2005] 6 NWLR (PT 921) 393 at 405.

On the second issue, counsel referred to the decision of the lower Court at page 235 to 236 (sic) of the record of appeal, to submit that the learned trial judge erred in law to have dismissed the Appellant’s witness statement on oath as being incompetent. He referred to Section 113 of the Evidence Act, 2011

to contend that irrespective of the form of the affidavit, the Court must concern itself with only one fact which is to verify to its satisfaction if the affidavit was sworn before the person duly authorised. It is also the submission of counsel that although counsel made a mistake in the witness statement on oath, but same is not sufficient to entirely dismiss the said witness statement on oath, as it bears the signature of the authorised officer and the seal of the Court.

Arguing that equity looks at the content rather than the form, counsel relied on the decision in SOLOMON EWUGA & ANOR v ALIYU AKWE DOMA (2008) VOL. 8 SCLR (PT 8) to argue that the Court ought to have moved away from technicalities in this case. It is also the submission that the learned trial judge did not exercise his discretion judicially and judiciously. He further submitted that the witness statement on oath is not the only body of evidence that the Appellant placed before the trial Court, as it had presented documentary evidence which were frontloaded as well, citing Section 205 and 206 of the Evidence Act, 2011. Counsel further submits that the said

witness was cautioned and sworn on oath and on the Holy Bible before the learned trial judge. He gave evidence upon which he was cross examined, referring to pages 254 of the record of appeal.

On the third issue, Appellant’s counsel reiterated the submissions made under the second issue before relying on the decision of the Supreme Court in ILIYA AKWAI LAGGA v AUDU YUSUF SARHUNA (2008) VOL. 10 SCLR (PT 10) 61 at 105 on the meaning of perverse finding of the Court. He relied on the decision in SABRUE MOTORS NIG. LTD v RAJAB ENTERPRISES NIG. LTD (2002) 4 SCNJ 370 at 382 on the need for this Court to intervene and set aside the decision of the learned trial judge.

On the Respondent’s part, relying on FBN PLC v ABRAHAM [2008] 18 NWLR (PT 1118) 172; ATTORNEY GENERAL, LAGOS STATE v DOSUNMU (1989) LPELR ??? 3154 (SC), counsel conceded that jurisdiction is the heartbeat of any proceedings. He also cited USMAN v BABA [2005] 5 NWLR (PT 917) 113 to concede that it is the claim and/or counter-claim of the parties that determines the jurisdiction of the Court in a matter. He then submitted that the claim and counter-claim before the trial Court

were anchored on Customer – Banker relationship in respect of which the Federal High Court has jurisdiction to adjudicate upon.

It is the submission of the Respondent’s counsel that the construction of the provision of Section 251(1) (d) of the 1999 Constitution has been settled in SOCIETE BANCAIRE LTD v MARGARIDA SALVADO DE LLUCH (2005) 1 MJSC 187 at 205, paras BE; NDIC v OKEM ENT. LTD [2004] 10 NWLR (PT 850) 107 where the Supreme Court emphasized that the Federal High Court jurisdiction to entertain the Appellants claim as presently constituted.

On the second issue, Respondents counsel noted that a witness statement on oath is an integral part of a party’s evidence before the Court. Referring to Section 13 of the Oaths Act, counsel submitted that the failure of the Appellants sole witness, Mr. Charles Izuegbu to have included the words of swearing in the closing part of the Statement on Oath makes it falls far below the requirements of the Oaths Act. He relied on CHUKWERU CHRIS OBUMNEKE v OKEKE SYLVESTER & ANOR [2010] ALL NWLR (PT 605) 1945 at 1947; GTB PLC v ABIODUN (2017) LPELR 42551 (CA)

before submitting that the non-compliance makes the said statement on oath a mere declaration which lacks evidential value, citing OBED ORLANDO IBE & ANOR v NKIRU UGOCHUKWU & 41 ORS [2010] NWLR (PT 504) 1590 at 1592 to 1593.

Counsel submit that the Appellant’s recourse to Section 205 and 206 of the Evidence Act as a likely way of the legally inexcusable omission of its sole witness in properly swearing the Statement on Oath is fundamentally flawed. Counsel noted, citing FBN PLC v ALHAJI MAIWADA [2013] 5 NWLR (PT 1348) 44, that fundamental non-compliance with a statutory requirement has an over reaching effect that cannot be waived off by being merely cloaked with the toga of technicality as the Appellant seeks to do. He contended that the learned trial judge was right to have discountenanced the Appellant’s statement on oath.

It is the final argument of counsel on this issue, that, a Court can only act on the basis of evidence placed before it and where a party fails to submit issues he raised in his pleading for trial by giving evidence in their support, the trial Court must resolve the case against the defaulting party, citing

NBCI v ALFIJIR MINNING NIG. LTD [1993] 4 NWLR (PT 287) 346; AJAO v ADEMOLA [2005] NWLR (PT 913) 636.

On the third issue, Respondent’s counsel submits that the Respondent presented credible evidence in support of its case whereas same was not challenged by the Appellant who did not place any evidence before the lower Court to dislodge the Respondents case. It is the further submission of counsel that, an Appellant who called no evidence at the hearing cannot avail himself of the general or omnibus Ground of Appeal, citing AG, AKWA-IBOM STATE & ANOR v HON. ESSIEN [2004] ALL FWLR (PT 233) 1730; SCOA NIGERIA PLC v ALHAJI MOHAMMED & ANOR [2003] FWLR (PT 185) 384 at 405; AGBAMU v OFILI [2004] ALL FWLR (PT 197) 1060 at 1075. Counsel concluded that the cases relied upon by the Appellant are not relevant to the instant case.

RESOLUTION
The first issue in this appeal borders on the competence of the Federal High Court to entertain the Appellant’s claim as constituted before the lower Court. Without doubt, jurisdiction is the live-wire of every form of adjudication; no Court or Tribunal can entertain and determine the matter

unless it is empowered under the relevant statutes to so do. See MADUKOLU v NKEMDILIM (1962) 1 ALL NLT 587 at 594, where the Apex Court held as follows:
A Court is said to be competent when:
(a) It is properly constituted as regards members and qualification of the members of the bench, and no member is disqualified for one reason or another;
(b) 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
(c) The case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are nullity however well conducted and decided; the defect is extrinsic to the adjudication.
It is hardly worth restating the position of the law, which seems to me, as aptly stated by the Supreme Court, per BELLO, CJN in the well-known case of UTIH v ONOYIVWE (1991) SCNJ 25 at 49, that:
Jurisdiction is the blood that gives life to the survival of an action in a Court of law and without jurisdiction, the action

will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.

The question is; should this sort of action constituted in the Appellant’s claim be commenced in the High Court, as contended by the Appellant. The answer to this question borders exclusively on the construction of the scope and extent of the jurisdiction of the Federal High Court as provided for in Section 251(1) (d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which reads thus:
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 or the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of other Courts in civil causes and matters 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 financial 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. (Underline mine)
To me, the extent and scope of the above section ought and ipso facto should not leave any one in doubt that the Federal High Court shall have exclusive adjudicatory competence to determine any issue, cause and/or matters expressly mentioned therein, but such exclusive adjudicatory competence does not extend to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank. For the avoidance of doubt, Section 251(1) (d) of the 1999 Constitution has done nothing more than say in layman terms, that where a dispute involves only issues in respect of transactions between an individual customer and a bank, the Federal High Court does not have exclusive jurisdiction. In other words, both the Federal High Court and a State High Court can exercise jurisdiction over such matter.
Needless to say, that the draftsmen in

their infinite wisdom thought is right and for good reason to somewhat preserve the jurisdiction of the State High Court over matters that has not been proscribed under Section 251(1) of the Constitution. While considering the issue at hand, the Supreme Court, per UWAIFO, JSC in NDIC (LIQUIDATOR OF ALLIED BANK OF NIGERIA PLC) v OKEM ENTERPRISES LIMITED & ANOR (2004) LPELR 1999 (SC) 53 to 28, Paras GA, without any modicum of ambiguity, stated the correct position of the law in the following words:
It can be seen that Section 251(1)(d) was meant to give the Federal High Court exclusive jurisdiction in “banking” in the wide sense to involve all banking transactions: see the definition given in the Black’s law Dictionary (supra). That conclusion cannot be resisted in view of the open-ended text of that provision. But having contemplated conferring exclusive jurisdiction on the Federal High Court in all the items stipulated in paragraph (d), which by the language used was indeed conferred, the law-giver then introduced a proviso thus:
“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.”
In considering the effect of the proviso in question, the import of the exclusive jurisdiction conferred on the Federal High Court under Section 251(1)(d) of the 1999 Constitution should not be lost sight of. The section begins with, “Notwithstanding anything to the contrary contained in this Constitution …” This takes account of the jurisdiction of the High Court of a State in Section 272 (1) of the 1999 Constitution which says, “Subject to the provisions of Section 251 and other provisions of the Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue. This is not a provision conferring exclusive jurisdiction on the State High Courts. Section 251 (1)(d) confers exclusive jurisdiction on the Federal High Court in specified matters notwithstanding section 272(1).
As has been observed, Section 251(1) of the 1999 Constitution begins with “Notwithstanding anything to the contrary contained

in this Constitution” while Section 272(1) is specifically made “subject to the provisions of Section 251.” When the term notwithstanding is used in a section of a statute, it is meant to exclude an impinging or impeding effect of any other provision of the statute or other subordinate legislation so that the said section may fulfill itself. It follows that, as used in Section 251(1) of the 1999 Constitution, no provision of that Constitution shall be capable of undermining the said section. In regard to Section 272 of the Constitution, Section 251 is directly relevant in that the former is made subject to it. The expression “subject to” means liable, subordinate, subservient, or inferior to; governed or affected by; provided that or provided;’ answerable for: see Black’s Law Dictionary, 6th edition, page 1425. It must therefore be understood that subject to introduces a condition, a restriction, a limitation, a proviso: see Oke v. Oke (1974) 1 All NLR (Pt. 1) 443 at 460. It subordinates the provisions of the subject section to the section empowered by reference thereto and which is intended to be diminished by the subject section:

see LSDPC v. Foreign Finance Corporation (1987) 1 NWLR (Pt. 50) 413 at461; Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622 at 655. The expression generally implies that what the section is subject to shall govern, control and prevail over what follows in that subject section of the enactment, so that it renders the provision to which it is subject to conditional upon compliance with or adherence to what is prescribed in the provision referred to: see Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 at 542,565,580; ldehen v. ldehen (1991) 6 NWLR (Pt. 198) 382 at 148; Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139 at 163-164. Plainly, the proviso in question in Section 251(1)(d), to put it in simple analysis, says that the Federal High Court will have exclusive jurisdiction in banking matters but when what is involved is individual customer and his bank transaction, the Federal High Court shall not have exclusive jurisdiction. Understandably, that was to recognize the jurisdiction of the State High Courts had been exercising in such matters which Section 272(1) of the Constitution impliedly preserves. The High Court of a State

can only exercise jurisdiction in any aspect of such specified matters to the extent that the proviso in Section 251(1)(d) permits. The said proviso cannot be interpreted to have the effect of conferring exclusive jurisdiction on the State High Courts and completely taking away the jurisdiction of the Federal High Court to entertain causes and matters relating to individual customer and bank transactions as was erroneously decided by the Court below and unsuccessfully argued before this Court by Chief Clarke. Alhaji Ibrahim, SAN has proffered clear argument in the appellant’s brief in this regard.
The above reasoning and conclusion was restated by the Apex Court in UBA PLC v BTL INDUSTRIES LIMITED (2006) LPELR 3404 (SC) and followed, quite rightly, by this Court in a plethora of judicial authorities including UNITY BANK PLC v NWADIKE & ANOR (2008) LPELR 5067 (CA); GABISAL NIGERIA LIMITED & ANOR v NDIC (2008) LPELR 4177 (CA); NDABA NIGERIA LIMITED & ANOR v UNION BANK OF NIGERIA PLC & ORS (2009) LPELR 8844 (CA); OMTC LIMITED & ANOR v CITY EXPRESS BANK & ANOR (2018) LPELR 45440 (CA).

Without seeking guidance from anywhere else, the law is trite that in order to ascertain whether a case comes within the jurisdictional competence of the Court, the Court will consider the Claimant’s claim as contained in the Writ of Summons and Statement of Claim, where the action is commenced by Writ of Summons or the Affidavit in support, where the action is commenced by an Originating summons. See ADELEKE v OSHA [2006] 16 NWLR (PT 1096) 608; DR IME SAMPSON UMANAH v OBONG (ARC.) VICTOR ATTAH & ORS (2006) LPELR 3356 (SC); ABDULHAMID v AKAR [2006] 13 NWLR (PT 996) 127 at 144, paras ED; S.T.B. PLC v OLUSOLA [2008] 1 NWLR (PT 1069) 561 at 593 to 594, PARAS FF. In the instant case, from the Appellant’s Statement of Claim, the claims are predicated on the purported assignment of a loan facility extended to the Appellant by the Respondent to a third party. It is abundantly clear that the transaction between the Appellant and the Respondent does not transcend beyond that of an individual customer and Banker relationship. Put simply, the Appellant’s claim falls exclusively within the proviso to

Section 251(1) (d) of the Constitution which confers on both the Federal High Court and the State High Court jurisdiction to concurrently adjudicate on such matters. Certainly, Section 251(1) (d) of the Constitution in its tenor and intendment embraces all possible conceivable matters touching on banking be it on issue of tort or contract and only the Federal High Court shall exclusively exercise jurisdiction over such matters in so far as such issue does not relate to banker and customer relationship as in the instant case. As the Supreme Court rightly said in NDIC v OKEM (supra);
the proper view of the proviso in Section 251(1)(d) of the Constitution is that the main provision having used the language of exclusive jurisdiction, the proviso then relaxes that exclusiveness given to the Federal High Court therein in a situation in which the issue is a dispute between an individual customer and his bank in respect of transactions between the individual and the bank. In that regard, a State High Court will also have or continue to exercise jurisdiction and this it does concurrently with the Federal High Court.
I am therefore unable to accept as

well founded the submissions made by the Appellant’s counsel in his brief of argument that the lower Court, to wit, the Federal High Court lacks the jurisdictional competence to adjudicate upon the Appellant’s claim as presently constituted. The first issue is therefore resolved in the Respondent’s favour.

On the second issue, Appellant’s counsel has argued that the learned trial judge ought not, in the interest of justice, to have discountenanced all relevant and admissible evidence owing to the fact that the Appellant’s Witness Statement on Oath was found to be defective. At pages 335 to 336 of the record of appeal, the learned trial judge held as follows:
Having examined carefully the statement on oath filed by the Plaintiff, it is clear that it did not state the residence and nationality of the deponent at the head of the statement on oath.
It is the law that the concluding part of a deposition must be clear as to the fact that it is an oath or an affirmation. In practice, the words; I depose/swear to these facts in good faith and in accordance with the Oaths Act commonly used.

Although the guide or form laid down in the 1st Schedule to the Oaths Act is expected to be followed. It has been held that it is not to be allowed, it has been held that it is not to be followed rigidly, but that there should be substantial compliance with the prescribed format. In this case, there is complete and absolute non-compliance. The effect is that the statement of the Plaintiff’s witness is incompetent.
By the above decision, it seems clear that the Appellant had failed to comply with the mandatory provision of the Oaths Act, particularly Section 13 thereof, which mandates that the statement being made by a deponent must state expressly or substantially that the deponent do solemnly and sincerely declare (and) make this solemn declaration conscientiously believing same (or the contents) to be true. Looking at the Appellant’s witness statement on oath, I find in the same terms as the learned trial judge that there is nothing on the said document remotely indicating any form of compliance with the mandatory provision of the Oaths Act.
The arguments canvassed by the Appellant, in his brief of

argument, as to the purported swearing of the witness with the Holy Bible at trial and the fact that the failure to insert the relevant words is a mistake/error which should not be sufficient to result into a dismissal of the Appellant’s witness statement on oath, is to my mind ingenious but misconceived. In the first place, it appears that counsel seems not to appreciate the distinction between an Affidavit and a Written Witness Statement on Oath, as counsel strenuously made submissions bothering on the form or otherwise of an Affidavit, as against a Witness Statement on Oath. This Court, per ABDULLAHI, JCA aptly stated the correct position of the law in DANLADI SANI ABUBAKAR v SANI ALI & ORS (2015) LPELR 40359 (CA), that;
an affidavit is not the same as a written statement on oath, which is more than an affidavit and does not necessarily need to be in compliance with the provisions of the Evidence Act, 2011 relating to Affidavit.
See also CHIEF MOSES TSEKAR TAR & ORS v MINISTRY OF COMMERCE AND INDUSTRIES (2018) LPELR 44216 (CA).
Here we are faced with and dealing with an issue bordering on

non-compliance with mandatory provisions of the Statute and I am persuaded, and ipso facto adopt the reasoning and conclusion of this Court in GUARANTY TRUST BANK PLC v BARRISTER AJIBOYE AYODEJI ABIODUN (2017) LPELR 42551 (CA), 29 to 31, Para D where ELECHI, JCA aptly held as follows:
The above depositions in the alleged written statement are not in full compliance with the provisions of the oaths Act as to qualify as written statement on oath prescribed by Order 3 Rule 2(1)(c) of the Rules of the lower Court. The said Order 3 Rule 2(1)(c) of the Rules of Ekiti State High Court Rules mandatorily directs a claimant to file written Statement on oath of the witnesses among other documents along with his originating process. The word SHALL as embodied in the said Order has been interpreted in many judicial authentic to mean compulsion. See: Onochie V. Odogwu (2006) 6 NWLR (pt 975) 65 (SC). It therefore follows that a valid oath must be in the form prescribed by Section 13 of the Oaths Act, Laws of the Federation of Nigeria 2004. The form prescribed by Section 13 is in the 1st Schedule to the Act which

provide as follows: I do solemnly and sincerely declare. Any written Statement, therefore, which does not bear the First Schedule to Section 13 of the Oaths Act, cannot be said to be a Written Statement on Oat. See Obed Orlando Ibe & Anor. V. Nkiru Ugochukwu & 41 Ors. (2010) All NWLR (Pt. 504) 1590 at 1592/1593. Section 13 of the Oaths Act provide as follows: It shall be lawful for any Commissioner for Oaths, Notary Public or any other person authorised by the Act to administer oaths, to take receive the declaration of any person voluntarily making the same before him in the form set out in the 1st Schedule which is follows, I (name supplied) do solemnly and sincerely declare, that I make this solemn declaration contentiously believing same (or the contents) to be true. In putting the legitimacy of oath in any Written Statement to rest, the Enugu Division of the Court of Appeal said in Chikwelu Chris Obumneke v. Okeke Sylvester & Anor. (2010) All FWLR (Pt. 605) 1945 at 1947 as follows: Thus, every oath to be legitimate must comply with the provisions of the Oaths Act, Cap. 333, Laws of the Federation and 1st

Schedule thereto. Where there is no statement in an oath stating that it is made solemnly, conscientiously believing the contents to be true and correct and by virtue of the Oaths Act, it is not an oath or Affidavit properly so called. (Underline mine for emphasis)
Certainly, as the learned trial judge rightly said, there is absolute non-compliance with the provision of the Act by the Appellant in the Written Statement on Oath contained in pages 20 to 21 of the record of appeal. My conclusion would have been different if in this case, the Appellant has substantially complied with the mandatory provision of the Act, in which case, same can be deemed an irregularity. See the recent decision of this Court in KAAN INTERNATIONAL DEVELOPMENT LIMITED v LITTLE ACORNS TURNKEY PROJECTS LIMITED & ANOR (2018) LPELR 45291 (CA). I am therefore in agreement with the Respondent’s counsel that the inevitable consequence of the said non-compliance is that such statement would possess no evidential value. The only conclusion that can be reached, as rightly done by the learned trial judge is that the Written Statement on Oath of the Appellant is

liable to be struck out and was rightly struck out by the trial judge. See BONA ORAEKWE & ANOR v OBIORA CHUKWUKA & ORS (2010) LPELR 9128.

Meanwhile, Appellant’s counsel had replicando argued with gusto and unction that even though the trial judge had held that the written statement on oath was defective, the Court ought to have countenanced and considered the documentary evidence presented by Appellant in support of its case, in proof of its claim. With respect, the Appellant missed the point in his submission, I believe, having struck out the Witness Statement on Oath, any evidence, whether documentary or otherwise predicated on the facts elicited from the Witness statement on oath are liable to be expunged. The documentary evidence does not and cannot stand in isolation and on its own without any oral evidence, apparently contained in the Statement on oath, to speak to such documents. Documents are tendered in a Court of law and admitted as exhibits on the basis of a valid oral evidence supporting same, else it will go to no issue and lack evidential value and are to be ignored by the Court. See PEOPLES DEMOCRATIC PARTY & ANOR v INEC

(2012) LPELR 8424 (CA); HON. TAYE ADENOWO OYEFOLU v HON. ABAYOMI SADIQ & ORS (2008) LPELR 4816 (CA).

I believe the resolution of the second issue to the effect that the evidence led by the Appellant goes to no issue, has rendered the third issue academic and of no practical relevance, as the arguments canvassed bothers on the reasoning of the learned trial judge in holding that the Appellants witness Statement on oath is fundamentally defective and failure of the learned trial judge to countenance the evidence led by the Appellant, especially the documentary evidence. I observe that the Appellant has not challenge in any material respect the decision of the lower Court that the Respondent presented credible evidence in support of its Counter-claim. As a matter of fact, the Appellant did not place before this Court any reason why the judgment on the counter-claim should be set aside, save for the argument on defective written statement on oath. Nevertheless, the only conclusion I am bound to reach is that the issues in this appeal are resolved in the Respondents favour.

In the end, I find no merit in the

Appellant’s appeal. It is hereby dismissed in its entirety. The judgment of the Federal High Court, coram IDRIS, J., delivered on 12th November, 2015 is hereby affirmed.
Costs of N200, 000.00 awarded in the Respondent’s favour.

MOHAMMED LAWAL GARBA, J.C.A.: I agree

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I agree with the lead judgment just delivered by my learned brother, Abimbola Osarugue Obaseki-Adejumo, JCA.

Appearances:

Ademola Adeyemi For Appellant(s)

Kayode Ajekigbe with him, Happiness Sunday For Respondent(s)

Appearances

Ademola Adeyemi For Appellant

AND

Kayode Ajekigbe with him, Happiness Sunday For Respondent

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