FIRST CITY MONUMENT BANK PLC v. LINUS G. NYAMA
(2014)LCN/7207(CA)
In The Court of Appeal of Nigeria
On Friday, the 2nd day of May, 2014
CA/K/283/2011
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA Justice of The Court of Appeal of Nigeria
Between
FIRST CITY MONUMENT BANK PLC – Appellant(s)
AND
LINUS G. NYAMA (Substituted by order of Court granted on 23/10/2013 for Nyama Jesse Linus deceased) – Respondent(s)
RATIO
WHETHER OR NOT THE FAILURE OF A BANK TO PAY A CUSTOMER’S CHEQUE IS A BREACH OF CONTRACT
It is pertinent to note that where a bank refuses to pay a customer’s cheque, as in the instance case, such an act of refusal amount to a breach of contract. Such an action lies in damages for breach of contract. See; Wema Bank Plc Vs Osilaru (2008) 10 NWLR (Pt.1094) page 150 at 171. S.T.B. Ltd Vs Anumnu (2008) 14 NWLR (Pt.1106) Page 125 at 151. PER ABOKI, J.C.A.
WHETHER OR NOT AN ACTION FOR BREACH OF CONTRACT CAN BE BROUGHT UNDER THE FUNDAMENTAL RIGHTS PROCEDURE RULES
An action for breach of contract cannot be brought under the fundamental rights procedure rules. Where the main claim is not for the enforcement of a fundamental right, the application of the enforcement procedure rules are inappropriate in such circumstances. See; Jack Vs UNAM (2004) 5 NWLR (Pt.865) 208 at 229 – 230. In the instance case, approaching the lower Court by way of the fundamental right enforcement procedure in an action for breach of contract between the parties was wrong. PER ABOKI, J.C.A.
WHETHER OR NOT WHERE A CLAIM IS NOT INITIATED BY DUE PROCESS OF LAW, THE COURT LACKS JURISDICTION TO ENTERTAIN IT
It is trite law that where a claim is not initiated by due process of law, the court lacks jurisdiction to entertain it and the proceedings before the Court are a nullity. See; Jack Vs UNAM (Supra) at 231. In the instance case the Respondent had not instituted this action at the lower Court by due process of law and that fact ousts the court jurisdiction and rendered the entire proceedings of the trial Court a nullity. PER ABOKI, J.C.A.
CONDITION PRECEDENT WHERE AN APPLICATION IS MADE UNDER THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES
Now, it is settled that where an application is made under the Fundamental Right (Enforcement Procedure) Rules, a condition precedent to the exercise of the court’s jurisdiction is that the enforcement of fundamental rights of the securing of enforcement thereof should be the main claim and not the accessory claim. Where the main or principal claim is not the enforcement of a fundamental right, the jurisdiction of the court cannot be properly exercised under the Fundamental Right (Enforcement Procedure) Rules – Tukur Vs Government of Taraba State (1997) 6 NWLR (Pt.510) 549, Gafar Vs Government of Kwara State (2007) 4 NWLR (Pt.1024) 375. The Rules are specifically restricted only to actions on contravention of the provisions of Chapter IV of the Constitution. Thus, only actions founded on a breach of fundamental rights guaranteed in the Constitition of the Federal Republic of Nigeria can be enforced under the Fundamental Rights (Enforcement Procedure Rule) 1979 and where an applicant under the Fundamental Rights (Enforcement Procedure Rules) is unable to pigeon hole his complaint within any of the guaranteed fundamental rights, the jurisdiction of the court cannot be said to be properly invoked and the action is liable to be struck out on the ground of incompetence – West African Examination Council Vs Akinkunmi (2008) 9 NWLR (Pt.1091) 151 and West African Examination Council Vs Adeyanju (2003) 9 NWLR (Pt.1092) 270. It has thus been held that the court has no jurisdiction to hear and determine a suit essentially on breach of contract of employment initiated under the Rules – Effiong vs Ebong (2006) 18 NWLR (Pt 1010) 109. Nor can a court entertain an action for wrongful dismissal under the Rules – Abubakar Tatari Alli Polytechnic Vs Maina (2005) 10 NWLR (Pt.934) 487, Isuama vs Governor, Ebonyi State (2006) 6 NWLR (Pt.975) 184. PER ABIRU, J.C.A.
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Summary Judgment/Ruling of the
Kaduna State High Court delivered on the 20th October, 2010 by M.M Ladan J.
The Respondent was the Applicant at the lower Court while the Appellant was the Dependant.
The facts of the case leading to this appeal are as follows:
The Respondent sometimes in March 2009 during his NYSC, opened an Account No. 21946000050250 with the Appellant (Bank) at its Ali Akilu branch, Kaduna, On 24th August, 2010 the Respondent presented a request to withdraw money from the account but the Appellant Bank denied him access to his money, in other words refuse to release him the money. He caused his counsel to write a letter to the Appellant Bank demanding unconditional release of the money. The letter was never responded to by the bank nor was the money released to the Respondent.
By a motion on notice dated 24th September, 2010 brought pursuant to Order 2 Rule III(1)(2)(3) of the Fundamental Rights (Enforcement Procedure) Rules 2009, the Respondent as Applicant claims against the Appellant the following reliefs.
1. “A DECLARATION that the refusal by the Respondent to allow the applicant withdraws money from his savings account No. 21946000050250 with the Respondent is an infringement of the applicant’s fundamental rights against compulsory acquisition of property guaranteed under section 44 of the constitution of the Federal Republic of Nigeria.
2. AN ORDER granting unto the applicant unconditional access to his Account No. 21946000050250 with the Respondent.
3. AN ORDER of perpetual injunction restraining the Respondent from further taking compulsory possession of the applicant’s money in his account with the Respondent.
4. Damages in the sum of Ten Million Naira (N10,000,000.00) for the business inconvenient caused by the Respondent to the applicant.
5. AND for such further order or order as the honourable Court may deem fit to make in the circumstances of this case”.
Though, the Respondent was served with the Court processes it failed to filed any pleadings or counter affidavit in its defence. At the hearing of the matter, counsel for the applicant applied for judgment. The Respondent was absent and unrepresented at the hearing of the matter. The lower Court on 20/10/2010 gave judgment in favour of the applicant and specifically ordered as follows:-
1. “I declared that the refusal by the Respondent to allow the applicant withdraw money from his savings account No, 21946000050250 with the Respondent is an infringement of the applicant’s fundamental rights against compulsory acquisition of property guaranteed under section 44 of the constitution of the federal republic of Nigeria.
2. An order is made granting unto the applicant unconditional access to his account No. 21946000050250 with the Respondent.
3. An order of perpetual injunction is made restraining the Respondent from further taking compulsory possession of the applicant’s money in his account with the Respondent.
4. Damage is awarded in the sum of Ten Million Naira (N10,000,000.00) for the business inconvenience caused by the Respondent to the applicant”.
Dissatisfied with the Judgment, the Appellant filed a notice of appeal and a further amended notice of appeal dated 29th October, 2013 containing 5 (five) grounds. Parties in accordance with the rules of this Court filed their respective briefs of argument.
The Appellant distilled three issues for determination from his five Grounds of appeal as follows;
1. “Whether the refusal to allow the Respondent withdraws money from his savings account with the Appellant was an infringement of the Respondent’s fundamental right against compulsory acquisition of property guaranteed by section 44 of the 1999 constitution, (Distilled from Ground 2 of the further amended Notice of Appeal).
2. Whether the learned trial judge was right when he assumed jurisdiction and granted reliefs 1, 2 and 3 claimed by the Respondent under the Fundamental Rights (Enforcement Procedure) Rules 2009. (Distilled from Ground 1 of the further amended Notice of Appeal).
3. Whether the failure of the learned trial judge to adequately and properly evaluate the affidavit evidence to see if there was established a breach of the Respondent’s Fundamental Right guaranteed by section 44 of the 1999 constitution before he granted all the reliefs sought against the Appellant had not occasioned a miscarriage of justice (Distilled from Grounds 3, 4 and 5 of the further amended Notice of Appeal)”.
The Respondent in his brief adopted issues No. 1 and 2 formulated by the Appellant and add a third one thus;
“Whether the non evaluation of the affidavit evidence per se affects the credible judgment of the trial Court which evidence were uncontroverted and which the trial Court believed”.
The issues formulated by the Appellant are all encompassing and have captured the essence of the dispute between the parties. Same is adopted for the determination of this appeal.
It is observed that the Appellant’s issue No. 2 raised the issue of jurisdiction of the trial Court to grant reliefs 1, 2 and 3 claimed by the Respondent under the Fundamental Rights (Enforcement Procedure) Rules 2009. It will be most prudent if this issue on jurisdiction is considered first, because its success may render the consideration of the other issues unnecessary and to avoid an exercise in futility by the Court.
In his argument on the said issue the learned Appellant’s counsel reproduce section 46(1)(2) and (3) of the Constitution of the Federal Republic of Nigeria. He contended that Order 2 of the fundamental right enforcement procedure rules deals with the procedure for the commencement of actions for the enforcement of the fundamental rights provided for in the constitution or the African charter on human and peoples rights.
Learned counsel contended that it is now settled law that it is the claim or claims in an action that determine the jurisdiction of the Court to adjudicate on it. He refereed the Court to Tukur Vs Government of Gongola State 1989 9 SC 1 at 34 and 37.
As it pertains to cases commenced under Fundamental Rights Enforcement Procedure rules he contended that the Supreme Court held that for a Court to have jurisdiction to hear and determine such cases the main claim or relief sought in the application must be for the enforcement of Fundamental Rights. He referred the Court to the cases of;
Tukur Vs Government of Gongola State (Supra).
Egbuonu Vs Bornu Radio Television Corp (1997) 12 SCNJ 99.
Sea trucks Nig Ltd Vs Anigboro (2001) 2 NWLR (Pt. 969) 159.
West African Examination Council Vs Omodolapo Yemisi Adeyanju (2008) 9 NWLR (Pt.1092) 270.
Learned counsel submitted that in the instance case, in order to determine whether the trial Court had the jurisdiction to grant the reliefs No. 1, 2 and 3 claimed by the Respondent in his motion on notice, it is necessary to look at the reliefs, the grounds for the reliefs and the facts relied upon. He referred the Court to the case of Sea Trucks Nig Ltd Vs Anigboro (Supra) at 178 where Ogundare, JSC. held thus;
“The correct approach in an action for the enforcement of fundamental right is to examine the relief sought, the ground for such relief and the facts relied upon. Where the facts relied upon disclose a breach of the fundamental right of the applicant as the basis of the claim, there is a redress for the enforcement of such rights through the fundamental rights enforcement procedure rules 1979. However, where the allege breach of right is ancillary or incidental to the main grievance or complains, it is incompetent to proceed under the rules…”
Learned counsel argued that a close look at the affidavit in support of the application sworn by the Respondent at pages 3-4 of the printed record and the grounds for the reliefs sought at pages 8 of the record would reveal that the money which the Respondent alleges was compulsorily acquired was actually in the possession of the Appellant (bank) by virtue of the fact that the Respondent had voluntary deposited same into his savings account with the Appellant (bank).
He contended that the wrong which the affidavit and grounds for the reliefs sought reveal can be best described as a breach of contract between the bank (Appellant) and its customer (Respondent). He submitted that such right is one which can only be enforced by an action for breach of contract commence by a writ of summons and not through an application for enforcement of fundamental rights under the fundamental right enforcement procedure rules, 2009.
He insisted that the right which a customer has under the Customer/Banker Relationship is not one of those rights provided for under chapter IV of the 1999 constitution and therefore cannot be enforce under the Fundamental Rights Enforcement Procedure Rules 2009. Therefore, the application of the Respondent under the said rules upon which reliefs 1, 2 and 3 were granted was incompetent and ought to have been struck out.
He submitted that the trial Court was in error when it assumed jurisdiction under the Fundamental Rights Enforcement Procedure Rules 2009 and granted the reliefs 1, 2 and 3 and that, that error had occasioned miscarriage of justice to the Appellant. He urges the Court to allow this appeal and to strike out the application dated 24th September, 2010.
In the Respondent’s brief of argument learned Respondent counsel argued issue one and two together. He submitted that the trial Court was called upon to perform its statutory duty of interpreting the provisions of the constitution of the Federal Republic of Nigeria and in performing this duty the lower Court was to be guided by 12 cannons of the interpretation as stipulated by the Supreme Court. He referred the court to the case of Marwa Vs Nyako 49 NSCQR 68 70 at 121 -122.
He contended that jurisdiction of the superior Courts to try cases is conferred by the constitution of Nigeria, the statute creating the Court as well as the claim of the plaintiff or as in the instance case, the affidavit in support of the applicant’s claim. He referred the Court to the cases of;
Goldmark Nig. Ltd. & 3 Ors vs Ibafon Co. Ltd & 4 Ors (2012) MRSC! VoJl. II 69 at 92-93,
Tukur Vs Govt of Gongola State (supra) at 561 and Basinco vs Woermann-Line (2009) 6 SCJN 222 at 24.
Learned counsel also referred the Court to the provisions of section 46(1), (2) and (3) of the constitution of the federal republic of Nigeria 1999. He submitted that application for enforcement of fundamental rights of the applicant before the lower Court was brought pursuant to section 44(1) in chapter IV of the CFRN 1999 and under the fundamental rights enforcement procedure rules 2009.
Learned counsel contended that there was no better procedure under which the applicant could have brought his case other than under the fundamental rights enforcement procedure rules. He insisted that the authorities cited by the Appellant counsel do not suggest the inference that once there is a banker/customer relation, a person cannot approach the Court to enforce his fundamental right if he feels his rights have been infracted. He referred the Court to the case of Alhaji Dahiru Saude Vs Alhaji Halliru Abdullahi (1989) 4 NWLR (Pt.116) 387 at 418-419.
He submitted that it is a matter of choice for the applicant to file an action either by way of writ of summons for breach of contract or by way of enforcement of his fundamental right which the constitution provided.
Learned counsel referred to and reproduced paragraphs 5, 6, 7, 8, 9, 10, 11 and 12 of the Respondent’s affidavit in support of the application. He argued that the depositions therein were not controverted by the Appellant and they are deemed to be admitted. He referred to the cases of;
Nwakonobi & Ors Vs Udeora & Ors 2012 MRSCJ Vol. III 134 at 155.
Omeregbe Vs Lawani (1980) 3- 4 SC 108
Ajao Vs Ashiru (1973) II SC 23
Okike Vs L.P.D.C (2005) 15 NWLR (Pt.949) 471
Learned counsel submitted that the Appellant’s counsel argued that by the facts contained in the affidavit and the statement in support of the application what exist between the parties was banker/customer relationship, the breach of which only gave rise to an action for breach of contract and therefore, the trial Court had no jurisdiction to try the matter under the fundamental rights enforcement procedure rules but as an action for breach of contract by writ of summons. Learned Respondent’s counsel submitted that the argument of the Appellant’s counsel on this issue is misconceived.
He prayed the Court to resolve the two issues in favour of the Respondent and dismiss this appeal with heavy cost.
I have carefully gone through the record of this appeal, an it is very clear that the grievance of the parties centred on the refusal of the Appellant to release the Respondent’s money which it held by virtue of banker/customer relationship that exist between them.
It is pertinent to note that where a bank refuses to pay a customer’s cheque, as in the instance case, such an act of refusal amount to a breach of contract. Such an action lies in damages for breach of contract. See; Wema Bank Plc Vs Osilaru (2008) 10 NWLR (Pt.1094) page 150 at 171. S.T.B. Ltd Vs Anumnu (2008) 14 NWLR (Pt.1106) Page 125 at 151.
An action for breach of contract cannot be brought under the fundamental rights procedure rules. Where the main claim is not for the enforcement of a fundamental right, the application of the enforcement procedure rules are inappropriate in such circumstances. See; Jack Vs UNAM (2004) 5 NWLR (Pt.865) 208 at 229 – 230. In the instance case, approaching the lower Court by way of the fundamental right enforcement procedure in an action for breach of contract between the parties was wrong.
It is trite law that where a claim is not initiated by due process of law, the court lacks jurisdiction to entertain it and the proceedings before the Court are a nullity. See; Jack Vs UNAM (Supra) at 231. In the instance case the Respondent had not instituted this action at the lower Court by due process of law and that fact ousts the court jurisdiction and rendered the entire proceedings of the trial Court a nullity.
This issue is resolved in favour of the Appellant.
Now this court having established that the trial Court had no jurisdiction to entertain the dispute by way of the procedure it adopted in reaching its decision, considering other issues raised in the appeal will amount to an academic exercise. There is merit in this appeal and it is hereby allowed. The Judgment of the Kaduna State High Court delivered in suit No. KDH/KAD/877/2010 on 20/10/2010 by M.M. Ladan, J. is hereby set aside. I make no order as to costs.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Abdu Aboki, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein.
The facts leading up to this case were that the Respondent was a customer of the Appellant and he operated an account with the Kaduna Branch of the Appellant. On the 24th of August, 2010 the Respondent presented a request to withdraw some money from his account and the request was rejected by the staff of the Appellant, notwithstanding that the Respondent had sufficient funds in the account to meet the sum requested. The Appellant denied the Respondent access to his funds and it ignored the letter of demand for the unconditional release of the money written by the Counsel of the Respondent.
Consequent on these, the Respondent commenced an action before the lower Court under the Fundamental Rights (Enforcement Procedure) Rules 2009 alleging that the act of the Appellant amounted to compulsory acquisition of the his property and that this was in breach of his fundamental rights guaranteed under section 44 of the Constitution of the Federal Republic of Nigeria. The lower Court took the application and entered judgment in favour of the Respondent. The contention in this appeal revolved around whether the procedure adopted by the Respondent in commencing his action in the lower Court was proper in the circumstances.
Now, it is settled that where an application is made under the Fundamental Right (Enforcement Procedure) Rules, a condition precedent to the exercise of the court’s jurisdiction is that the enforcement of fundamental rights of the securing of enforcement thereof should be the main claim and not the accessory claim. Where the main or principal claim is not the enforcement of a fundamental right, the jurisdiction of the court cannot be properly exercised under the Fundamental Right (Enforcement Procedure) Rules – Tukur Vs Government of Taraba State (1997) 6 NWLR (Pt.510) 549, Gafar Vs Government of Kwara State (2007) 4 NWLR (Pt.1024) 375. The Rules are specifically restricted only to actions on contravention of the provisions of Chapter IV of the Constitution. Thus, only actions founded on a breach of fundamental rights guaranteed in the Constitition of the Federal Republic of Nigeria can be enforced under the Fundamental Rights (Enforcement Procedure Rule) 1979 and where an applicant under the Fundamental Rights (Enforcement Procedure Rules) is unable to pigeon hole his complaint within any of the guaranteed fundamental rights, the jurisdiction of the court cannot be said to be properly invoked and the action is liable to be struck out on the ground of incompetence – West African Examination Council Vs Akinkunmi (2008) 9 NWLR (Pt.1091) 151 and West African Examination Council Vs Adeyanju (2003) 9 NWLR (Pt.1092) 270. It has thus been held that the court has no jurisdiction to hear and determine a suit essentially on breach of contract of employment initiated under the Rules – Effiong vs Ebong (2006) 18 NWLR (Pt 1010) 109. Nor can a court entertain an action for wrongful dismissal under the Rules – Abubakar Tatari Alli Polytechnic Vs Maina (2005) 10 NWLR (Pt.934) 487, Isuama vs Governor, Ebonyi State (2006) 6 NWLR (Pt.975) 184.
The question that arises in this appeal is – whether the complaint of the Respondent before the lower Court can be properly located within any of the provisions of Chapter IV of the Constitution? Counsel to the Appellant submitted that it cannot while Counsel to the Respondent said that it cannot. The Respondent predicated his application before the lower Court on the provisions of section 44 of the 1999 Constitution of the Federal Republic of Nigeria. Section 44 states, in part, thus:
(1) No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things –
(a) requires the prompt payment of compensation therefore; and
(b) gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or body having jurisdiction in that part of Nigeria.”
Now, what do these provisions mean? It is elementary that in the interpretation of statute, the main object is to discover the intention of the law makers, which is deducible from the language used. Once the language is clear and unambiguous, the court will give an ordinary or literal interpretation to it. The literal construction must be followed unless that would lead to absurdity and inconsistency with the provisions of the statute as a whole. The court of law in the exercise of its interpretative jurisdiction must stop where the statute stops – Buhari Vs Yusuf (2003) 14 NWLR (Pt.841) 446 and Okoli vs Udeh (2008) 10 NWLR (Pt.1095) 213. Further, where there are provisions in a statute dealing with a particular subject matter a court is enjoined to adopt a holistic approach and construe all the provisions as a whole and not in bits and pieces in a truncated form – Bakare Vs Nigerian Railway Corporation (2007) 17 NWLR (Pt.1064) 606 and Abiodun Vs Chief Judge, Kwara State (2007) 18 NWLR (Pt.1065) 109. Also, it is trite that commonsense must be applied in construing statutes and the construction agreeable to justice and reason must be adopted Elabanjo vs Dawodu (2006) 15 NWLR (Pt.1001) 76, Sobamowo Vs Elemuren (2008) 11 NWLR (Pt.1097) 12.
Applying these principles to the interpretation of section 44 of the Constitution, it is simple common sense that refusal by a bank to honour the request of one its customers to withdraw from funds in his account with the bank is not, and cannot be, one of the incidents that would qualify as compulsory acquisition of property under the provision of section 44 of the Constitution. The requirement of “prompt payment of compensation” makes this fact very plain and rudimentary. It is settled law that the relationship between a banker and its customer is governed by the ordinary principles of contract – D Stephens Industries Ltd Vs Bank of Credit and Commerce (1999) 11 NWLR (Pt.625) 29. Section 44(2)(c) of the Constitution states that the provisions of section 44(1) would not apply to rights or obligations arising out of a contract. Thus, in Ndigwe vs Ibekendu (1998) 7 NWLR (Pt.558) 486, where the relationship between the parties arose out of a credit sale arrangement of a vehicle, the Court of Appeal held that the detention of the vehicle did not come within the provisions of section 40(1) of the 1979 Constitution. And even where the Counsel to the respondents in that case raised the issue of mortgage, Tobi, JCA (as he then was) stated at page 497C that:
“Even on the respondents own showing, how does or how can the law of mortgage suddenly give rise to an action on breach of fundamental rights warranting the invocation or enforcement of Fundamental Rights (Enforcement Procedure) Rules, 1979? Ordinarily, tr. law of mortgage is in the realm of private law while fundamental right is in the realm of public law.”
The case of the Respondent as made out on the application before the lower Court did not come within the provision of section 44 of the 1999 Constitution or of any other provision in Chapter IV of the Constitution. The action of the Respondent thus ought not to have been brought under the provisions of the Fundamental Rights (Enforcement Procedure) Rules. The action as brought by the Respondent was incompetent and should have been struck out by the lower Court – West African Examination Council vs Akinkunmi supra and West African Examination Council Vs Adeyanju supra.
It is for these reasons, and the fuller reasons contained in the lead judgment, that I too find merit in this appeal. I hereby set aside the judgment of the High Court of Kaduna State in Suit No KDH/KAD/877/2010 delivered by Honorable Justice M.M. Ladan on the 20th of October, 2010. I too make no order on cost.
Appearances
Abdullahi Yahaya Esq. with T. Magaji and A. OwoladeFor Appellant
AND
A. Maisamari Esq. with Francis OsuagwuFor Respondent
