FIRST BANK OF NIGERIA PLC & ANOR v. BEN-SEGBA TECHNICAL SERVICES LIMITED & ANOR
(2015)LCN/8018(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 10th day of November, 2015
CA/B/269/2011
RATIO
COURT: JURISDICTION; THE IMPORTANCE OF JURISDICTION TO ACTION IN A COURT OF LAW
The issue of jurisdiction which is being contested is a threshold issue which must be entertained and concluded by the trial court before any further step is taken. Jurisdiction is 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, any attempt to resuscitate it without infusing blood into it would be an abortive exercise. Jurisdiction of courts in this country (Nigeria) is derived from the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Therefore, where the Constitution has declared that courts cannot exercise jurisdiction, any provision in any law to the contrary will be inconsistent with the provision of the Constitution and void. per. JIMI OLUKAYODE BADA, J.C.A.
COURT: JURISDICTION; WHAT DETERMINES OR CONFERS JURISDICTION ON THE COURT
It is settled law that it is the plaintiffs’ claim that determines or confers jurisdiction on the court. See – Adeyemi v. Opeyori (Supra), Kwara State v. Warah (1995) 7 NWLR Part 405 page 121. per. JIMI OLUKAYODE BADA, J.C.A.
COMPANY LAW: COMPANY REGISTRATION; WHETHER A COMPANY REGISTERED UNDER THE COMPANIES AND ALLIED MATTERS ACT CAN QUALIFY EVERY ACTION BROUGHT BY OR AGAINST IT AS “ MATTERS ARISING FROM THE OPERATIONS OF COMPANIES AND ALLIED MATTERS ACT
It must be stressed at this juncture that, a company registered under the Companies and Allied Matters Act does not qualify every action brought by or against it as “matters arising from the operations of Companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of companies incorporated under the Company and Allied Matters Act as contemplated by the provisions of Section 251 (1) (e) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).” See the following cases: –
– Tanarewa (Nig) Ltd v. Plastifarm Ltd (2003) 14 NWLR part 840 page 335 at 374
– Akinbobola & Sons v. Plissons Fisko Nig Ltd (1986) 4 NWLR part 37 page 621. per. JIMI OLUKAYODE BADA, J.C.A.
COURT: JURISDICTION; THE EXERCISE OF THE EXCLUSIVE JURISDICTION OF THE FEDERAL HIGH COURT IN CIVIL CASES AND MATTERS ARISING FROM THE OPERATION OF THE COMPANIES AND ALLIED MATTERS ACT
By virtue of Section 251 (1) (e) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), notwithstanding anything to the contrary contained in the 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 cases and matters arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or regulating operation of companies incorporated under the Companies and Allied Matters Act. It is manifest from the foregoing provisions that jurisdiction will only vest in the Federal High Court if the suit involves civil cause or matter arising from the operation of the Companies and Allied Matters Act or any other Act replacing that Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act. The implication is that in an action involving regulating, running or management or control of companies, the Federal High Court would be vested with jurisdiction. per. JIMI OLUKAYODE BADA, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
Between
1. FIRST BANK OF NIGERIA PLC
2. ELIJAH OLA ADEDIWURA – Appellant(s)
AND
1. BEN-SEGBA TECHNICAL SERVICES LIMITED
2. MR. BERNARD ESEGBA – Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Justice, Delta State of Nigeria, holden at Effurun in Suit No. EHC/195/2008 – Ben-Segba Technical Services Limited & 1 Other v. First Bank of Nigeria PLC & 1 Other delivered on the 14th day of August, 2009 wherein the lower court dismissed the application for leave to apply for extension of time within which the defendants/applicants can apply for an order vacating the order of interim injunction made by the lower court on 24/6/2008 etc.
The facts of the case are that the respondents who were Plaintiffs at the lower court took out a writ of summons dated 23/6/2008 and filed on the same date against the appellants who were defendants at the lower court. The respondents filed two motions supported by identical affidavits, one ex-parte dated and filed on 23/6/2008, and the other motion on notice was filed alongside with the writ of summons.
On 24/6/2008, the lower court heard the motion ex-parte and ordered an interim injunction by which it restrained the appellants from (1) “taking further or any step for the recovery of the
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disputed loan/interest and (2) restraining 2nd defendant from taking over managing, receiving, disposing/selling, removing anything in respect of plaintiffs’ properties pending the hearing and determination of the motion on notice.” The lower court then adjourned the motion on notice with the same prayers sought to 15/7/2008.
At that stage, the appellants were served with the writ of summons together with the enrolled order of interim injunction. The appellants entered a conditional appearance and he responded by filing a motion on notice dated 10/7/2008 supported by affidavit of 22 paragraphs. The appellants prayed the lower court for “leave and extension of time within which to apply for an order to vacate the order of interim injunction and/or striking out of the respondents’ suit” on the ground that the trial court lacked jurisdiction to entertain and/or adjudicate on the matter for the plaintiffs are in receivership.
The lower court heard the objection and dismissed it in a ruling delivered on the 14th day of August, 2009.
Dissatisfied with the said ruling, the appellants appealed to this Court vide the notice of appeal filed on the
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24/3/2011 pursuant to the order of this court dated 22/3/2011 granting the appellants extension of time and leave to appeal.
The learned counsel for the appellants formulated two issues for the determination of the appeal. The issues are set out as follows:-
(1) Whether in the circumstances of this case, the plaintiffs’ processes and/or materials before the trial court at the stage the objection was raised were sufficient for the trial court to determine if it has jurisdiction to adjudicate on the plaintiff’s claim.
(Distilled from Grounds 2, 3 and 4)
And if yes,
(2) Whether the plaintiffs’ claim as endorsed on the writ of summons renders the trial court incompetent so as to be unable to hear and determine the claim (Distilled from Ground 1).
The learned counsel for the respondents adopted the two issues formulated by counsel for the appellants for the determination of this appeal.
At the hearing of this appeal, the learned counsel for the appellants stated that the judgment of the High Court of Delta State appealed against was delivered on 14th day of August 2009, and the notice of appeal was filed on 24/3/2011 pursuant to
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the leave granted on 22/3/2011. He stated further that leave to transmit the record of appeal was granted on 16/5/2013 and the appellants’ brief of argument was filed on 27/6/2013.
He adopted the appellants’ brief of argument as his arguments in urging that the appeal be allowed.
The learned counsel for the respondents on the other hand referred to the respondents’ brief of argument filed on 27/2/2014.
He adopted the said brief as his argument in urging that the appeal be dismissed.
ISSUES FOR DETERMINATION OF THE APPEAL
ISSUES 1 and 2 (Taken together)
– Whether in the circumstance of this case, the plaintiff’s processes and/or materials before the trial court at the stage the objection was raised were sufficient for the trial court to determine if it has jurisdiction to adjudicate on the plaintiffs’ claim. (Distilled from Grounds 2, 3 & 4)
– Whether the plaintiff’s claim as endorsed on the writ of summons renders the trial court so incompetent so as to be unable to hear and determine the claim.
The learned counsel for the appellants submitted that it is the law that the plaintiff’s claims determines or confer
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jurisdiction on the court. He relied upon the following cases:-
– Adeyemi v.Opeyori (1976) 9 – 10 SC page 31 at 51.
– Anya v.Iyayi (1993) 7 NWLR part 05 page 290
– A.G. Kwara State v. Warah (1995) 7 NWLR part 405 page 121.
It was contended on behalf of the appellants that after being served with the writ of summons and other processes filed by the respondents, the appellants filed a notice of preliminary objection vide a motion on notice dated 10/7/2008 objecting to the jurisdiction of the trial court.
Learned counsel for the appellants submitted that the issue of jurisdiction must be examined in all its ramification. He submitted further that the trial court was in error in its findings that the incidence of receivership which is the appellants’ main plank and ground for preliminary objection was not obvious.
On issue number 2, it was submitted on behalf of the appellants that the contents of reliefs 4 and 6 made them to belong to different specie of matters outside banker/customer relationship. He went further that they touch and pertain to the operations of a company. They connect with the appointment and conduct of a
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receiver and manager appointed outside the court and he submitted that it is regulated by the Companies and Allied Matters Act, Laws of the Federation of Nigeria 2004. He went further in his submission that the 1999 Constitution confers the Federal High Court with exclusive jurisdiction to hear and determine causes and matters regulated by Companies and Allied Matters Act and this includes the appointment and conduct of receiver and manager.
He relied on – Section 251 (1) (e) of the 1999 Constitution.
– Tanarewa Nig. Ltd v.Plastifarm Ltd (2003) FWLR part 185 page 469.
– Fagbola v.KCCI M & A (2006) All FWLR part 324 page 1911.
It was also submitted that the other reliefs of the Respondents at the lower court are tied to the issue of receivership.
In view of the foregoing, the learned counsel for the appellants submitted that the lower court ought to have declined jurisdiction in this matter.
He relied on the following cases:
– Tukur v.?Government of Gongola State (1989) 4 NWLR Part 117 page 517.
– Odunsi v.?Ojora (1961) AII NLR page 283.
– Arnorld Nwafia v. Ububa (1966) NMLR page 219.
He finally urged
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that issues 1 and 2 be resolved in favour of the appellant.
The learned counsel for the respondents in his response to the submission of learned counsel for the appellants, submitted that the processes filed at the lower court to wit the writ of summons cannot be said to be sufficient for the court to determine that the case of the respondents is mainly based on a challenge of receivership and therefore makes the court to be bereft of jurisdiction to entertain the suit.
It was submitted further that the action of the respondents at the lower court is a complaint against the handling of the respondents’ accounts with the first appellant and the damages that has accrued therefrom.
The learned counsel for the respondents submitted that though it is the law that the issue of jurisdiction can be raised at any time or stage of proceedings however the issue must be considered based on the processes filed in court which processes reveals the facts on which the said objection must be based. He went further that jurisdiction is determined based on the case of claimant in court and not on the case of the defendant as put forward in the statement of defence
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or counter-claim.
He relied on the case of: –
– RTEA v. NURTW (1996) 8 NWLR part 469 page 737.
In the present case, the respondents contended that the writ of summons disclosed that the respondents are challenging an alleged loan transaction with the 1st appellant.
It was submitted that the respondents’ processes filed at the lower court were insufficient to enable the lower court decide and decline jurisdiction rather the processes are enough for the court to make the interim order made which the appellants sought to set aside.
On issue 2 the learned counsel for the respondents submitted that the writ of summons does not render the trial court incompetent so as to bereft it of jurisdiction to hear and determine the claim. It was contended that a reading of the reliefs endorsed on the writ would reveal that the respondents are complaining of the fraudulent and unlawful acts of the appellants. It was argued further that the subject matter of the loan transaction/contract which the respondents are quarreling with the 1st appellant on, is the way and manner it has operated the loan transaction.
The learned counsel for the
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respondents submitted that reliefs 1, 2 and 3 in the writ of summons are exclusively within the jurisdiction of the State High Court because the Federal High Court do not entertain matters in respect of contract or banker/customer relationship matter. He went further that the other reliefs in the Writ of Summons are ancillary reliefs to reliefs 1, 2 and 3 which relief touches and relates to issue of breach of contract/loan transaction and damages therefrom.
It was also submitted that the Federal High Court has no jurisdiction to entertain actions in respect of contract and banker/customer relationship as in this appeal. He referred to the following cases: –
– Onuoha v. KRPC (2005) 6 NWLR part 921 page 393
– UBA v. Btls IND LTD (2006) NWLR part 1013 page 61
– NDIC v.OKEM ENT NIG. LTD and another (2004) AII FWLR part 210 page 1176.
He finally urged that issues one and two be resolved in favour of the respondents.
On 23/6/2008, the respondents who were plaintiffs at the lower court filed a writ of summons against the appellants who were defendants at the said lower court. The claim is at page 1A of the record of appeal and it is
9 set out as follows: –
1. A declaration that the loan transaction/contract between 1st plaintiff and 1st defendant was frustrated by mutual courses for which reason 1st defendant need not charge interest on same.
2. A declaration that the undated and unsigned tripartite legal mortgage purportedly made between the 1st plaintiff and 1st defendant is oppressive, null and void and of no effect whatsoever.
3. A declaration that the 1st defendant willfully and totally frustrated the contract between itself and Shell Petroleum Development Company of Nigeria Ltd i.e. contract number W13196.
4. A declaration that the purported letter of 1st defendant dated 31/3/08 allegedly appointed 2nd defendant as the receiver/manager of the 1st plaintiff is null, void and of no effect whatsoever.
5. The sum of (N10,000,000.00) Ten Million Naira damages against the 1st Defendant for breach of contract when sometime in April, 2008 1st defendant without any regard to its letter dated 20th February, 2007 and without notice to plaintiff unlawfully appointed 2nd defendant as receiver/manager to take over the 1st plaintiff.
6. The sum of (N9,000,000.00) Nine
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Million Naira being money collected by the 2nd defendant in the office of 1st plaintiff on the 16th of June, 2008 when it unlawfully broke into the premises of the 1st plaintiff with armed men.
7. The sum of (N1,000,000,000.00) One Billion Naira being damages for trespass against the defendants.
8. An order of mandatory injunction compelling the 1st defendant to produce the statement of account of 1st plaintiff in account No. 2050001833 with the 1st defendant.
9. An order of mandatory injunction compelling the 1st defendant to furnish 1st plaintiff with all the particulars and interest charge on the loan and the total amount debited from the 1st plaintiff’s said account, the subject matter of this suit.
10. An order of perpetual injunction restraining the defendant from doing anything or taking any step or further step for the recovery of the disputed loan/interest charged thereof, the subject matter of this suit.
11. And an order of perpetual injunction restraining the 2nd defendant, his agents, servants, privies or whomsoever from taking over, managing, receiving, disposing/selling, doing anything or taking any step or further step in
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respect of the plaintiffs properties by virtue of the purported letter of 31st March, 2008.
12. And for any other reliefs this Honourable Court may deem suitable or fit to make in the circumstances.
Upon the service of the writ of summons endorsed with the reliefs together with the enrolled order of interim injunction, the appellants filed a preliminary objection vide a motion on notice dated 10/7/2008 objecting to the jurisdiction of the lower court.
The contention of the learned counsel for the respondents was that the writ of summons disclosed that the respondents are challenging an alleged loan transaction with the 1st appellant and proceeded to contend that the same is unlawful and that nothing can arise from the said loan transaction. He stated further that the lower court in its ruling on page 58 of the record of appeal held thus: –
“From the writ of summons, the focal point is not receivership, rather it is breach of contract and damages, therefrom until the statement of claim proves otherwise?”
The issue of jurisdiction which is being contested is a threshold issue which must be entertained and concluded by the trial
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court before any further step is taken.
Jurisdiction is 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, any attempt to resuscitate it without infusing blood into it would be an abortive exercise.
Jurisdiction of courts in this country (Nigeria) is derived from the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Therefore, where the Constitution has declared that courts cannot exercise jurisdiction, any provision in any law to the contrary will be inconsistent with the provision of the Constitution and void.
The issue for consideration is whether in the circumstances of this case, the plaintiffs’ processes and/or materials before the trial court at the stage the objection was raised were sufficient for the trial court to determine if is has jurisdiction to adjudicate on the plaintiffs’ claim.
It is settled law that it is the plaintiffs’ claim that determines or confers jurisdiction on the court. See – Adeyemi v. Opeyori (Supra), Kwara State v. Warah (1995) 7 NWLR Part 405 page
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121.
What then were the materials before the lower court as at the time the objection to jurisdiction was raised?
There was the writ of summons and the claim as set out in the writ of summons was set out earlier in this Judgment.
There was also the respondents’ affidavit which supported the motion ex-parte by which the interim order was made, it contained facts particularly on pages 7 and 8 of the record of appeal where it was stated in paragraphs 33, 35, 36 and 37 as follows: –
(33) He then introduced himself as a purported receiver/manager appointed by 1st defendant to recover the debt 1st plaintiff/applicant owed to it. I thoroughly showed him my utmost disappointment at him. I told him that he cannot take over 1st plaintiff/applicant and at that stage he called the policemen to push me out. But before I got out I requested to collect the money I wanted to use to pay the one Chief Ukiho Gabriel who gave me money [loan] to bring in transformer into the premises /33KVA line PHCN. But he refused to listen. He told me that he has collected the N9,000,000.00 [Nine Million Naira] for onward transmission to 1st defendant/respondent.
(35)
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After 2nd defendant/respondent pushed me out of the premises, I stood outside the gate and was crying when 2nd defendant came out with pieces of papers [letter] dated 4th June, 2008 and threw it at me. The letter with its annexure is hereby attached as exhibit “AA15”.
(36) The 2nd defendant/respondent together with his armed men are threatening to sell the 1st plaintiff/ applicant and its premises. They have even unlawfully publish in the newspaper.
(37) I have a running contract with SPDC which said contract will be terminated and 1st plaintiff/applicant blacklisted if the defendants are allowed to carry out their threat and 2nd defendant/respondent allowed functioning as receiver/manager pending the hearing of this suit. The contract is worth N650,000,000.00 [Six Hundred and Fifty Million Naira] which is over and above purported loan of the 1st defendant/respondent.
It must be stressed at this juncture that, a company registered under the Companies and Allied Matters Act does not qualify every action brought by or against it as “matters arising from the operations of Companies and Allied Matters Act or any other enactment replacing that Act or
15
regulating the operation of companies incorporated under the Company and Allied Matters Act as contemplated by the provisions of Section 251 (1) (e) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).” See the following cases: –
– Tanarewa (Nig) Ltd v. Plastifarm Ltd (2003) 14 NWLR part 840 page 335 at 374
– Akinbobola & Sons v. Plissons Fisko Nig Ltd (1986) 4 NWLR part 37 page 621.
By virtue of Section 251 (1) (e) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), notwithstanding anything to the contrary contained in the 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 cases and matters arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or regulating operation of companies incorporated under the Companies and Allied Matters Act. It is manifest from the foregoing provisions that jurisdiction will only vest in the Federal High Court if the suit involves civil cause
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or matter arising from the operation of the Companies and Allied Matters Act or any other Act replacing that Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act. The implication is that in an action involving regulating, running or management or control of companies, the Federal High Court would be vested with jurisdiction.
On the other hand, where the dispute does not involve the control or administration of a company and deals with the ordinary routine business of a company, a State High Court, and not the Federal High Court, has jurisdiction to entertain and determine the matter. In other words, any matter that can be decided without recourse to either the Companies and Allied Matters Act; or any other enactment regulating the operation of companies under the said Act belong to a State High Court. See the following cases: –
– F.M.B.N. v. NDIC (1999) 2 NWLR part 591 page 233.
– Ali v. CBN (1997) 4 NWLR part 498 page 192.
– NIDB v. Fembo Nig Ltd (1997) 2 NWLR part 489 page 543.
– Bi Zee Bee Hotels Ltd v. Allied Bank of Nigeria Ltd (1996) 8 NWLR part 465 page 176.
– 7Up Bottling
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Company Ltd v. Abiola & Sons Bottling Co. Ltd (1996) 7 NWLR part 463 page 714.
It must be emphasized that the jurisdiction conferred on the Federal High Court is explicit under Section 251 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The jurisdiction does not include civil causes or matters founded on contract or damages for tort or negligence. Items listed under Section 251 (1) can only be determined exclusively by the Federal High Court. All other items not included in the list would therefore still be within the jurisdiction of the State High Court.
In view of the foregoing, it is my humble view that it is only claim nos. 4, 6 and probably 11 that may be determined by recourse to the Companies and Allied Matters Act. The remaining claims of the respondents are comfortably within the jurisdiction of the State High Court.
In the final analysis, I agree with the submission of learned counsel for the appellants that in the circumstances of this case, the plaintiffs’ processes and/or materials before the lower court at the state the objection was raised were sufficient for the lower court to determine if it has
18 jurisdiction to adjudicate on the plaintiffs’ claim. To say that objection to jurisdiction should only be taken after the statement of claim has been filed is a misconception. It depends on what materials are available. It could be taken on the basis of the statement of claim. See – Adeyemi v. Opeyori (Supra), Kashikwu Farms Ltd v. Attorney-General of Bendel State (1986) 1 NWLR part 19 page 695. It could be taken on the basis of the evidence received. See – Barclays Bank of Nigeria Ltd v. Central Bank of Nigeria (1976) 1 AII NLR page 409; or by a motion supported by an affidavit giving the full facts upon which reliance is placed. See – National Bank of Nigeria Ltd v. Shoyoye (1977) 5 SC 181 at 194 per Obaseki JSC. But certainly, it could be taken on the face of the writ of summons where appropriate. See – Attorney-General of Kwara State v. Olawale (1993) 1 NWLR part 272 page 645 at 674 – 675 where Karibi-Whyte JSC observed: –
“There is no doubt the issue of whether a plaintiff’s action is properly within jurisdiction or indeed justiciable can be determined even on the endorsement of the writ of summons, as to the capacity in which action was being
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brought or against who action is brought. It may also be determined on the subject matter endorsed on the Writ of Summons, if this is not actionable.”
Consequent upon the foregoing, I am of the view that the jurisdiction of the Federal High Court does not include civil causes or matters founded on contract or damages for tort or negligence, therefore the plaintiffs’ claim as endorsed on the writ of summons has not rendered the lower court incompetent to hear and determine the claim except claim No. 4, 6 and 11 upon which the lower court lacks jurisdiction.
In the result, issue No. 1 is resolved in favour of the appellants while issue No. 2 is resolved in favour of the respondents. This appeal therefore succeeds in part.
There shall be no order as to costs.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: My learned brother, the Hon. Justice Jimi Olukayode Bada, JCA, has accorded me the privilege of having a copy of the judgment just delivered by him. Having read, before now, the briefs of argument of the learned counsel to the respective parties vis-a-vis the records of appeal, I cannot but concur, whole heartedly, with the
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far-reaching reasoning and conclusion reached in the said judgment, to the effect that the instant appeal succeeds in part.
Hence, having adopted the reasoning and conclusion reached in the said judgment as mine, I too hereby allow the appeal in part.
There shall be no order as to costs.
PHILOMENA MBUA EKPE, J.C.A.: I have been opportune to read the draft copy of the judgment just delivered by my Learned Brother, J. O. Bada, JCA where he resolved ISSUE ONE in favour of the appellants and ISSUE TWO in favour of the respondents.
Having extensively dealt with the two issues formulated by learned counsel for the appellants, I am in total agreement with the reasoning and conclusions of my learned Brother in the lead judgment. Consequently I too agree that this appeal succeeds in part.
I abide by the order as to costs in the lead judgment.
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APPEARANCE
MR H. TAGAR holding brief of For Appellants
JIM OKADOSO Esq,
MR ONOWRE EGBON For Respondents
Appearances
Mr. H. Tagar holding brief of Jim Okadoso Esq.For Appellant
AND
Mr. Onowre EgbonFor Respondent
