FIVE STAR INDUSTRY LIMITED v. BANK OF INDUSTRY LIMITED (2017)

FIVE STAR INDUSTRY LIMITED v. BANK OF INDUSTRY LIMITED

(2017)LCN/10206(CA)

In The Court of Appeal of Nigeria

On Friday, the 7th day of July, 2017

RATIO

INTERFERENCE WITH THE JUDGMENT OF THE LOWER COURT: CIRCUMSTANCES WHERE THE MISTAKE MADE BY A LOWER COURT IN ITS JUDGMENT WILL RESULT IN THAT JUDGMENT OF THE LOWER BEING SET ASIDE ON APPEAL

It is settled that not every mistake for slip made by a lower Court in its judgment will result in the judgment of that Court being set aside on appeal especially where the mistake is insubstantial and was not shown to lead to miscarriage of justice vide as in this case vide F.B.N. Plc. v. Ozokwere (2014) 3 NWLR (Pt.1395) 439 at 466 – 467 per the lead judgment prepared by his lordship, Onnoghen, J.S.C., (now CJN). PER JOSEPH SHAGBAOR IKYEGH, J.C.A.

ISSUE OF JURISDICTION: WHETHER THE ISSUE OF JURISDICTION CAN BE RAISED IN THE RESPONDENTS’ BRIEF; WHETHER THE STATEMENT OF DEFENCE IS IMPORTANT IN SORTING THE ISSUE OF JURISDICTION

The issue of jurisdiction was raised in the respondent’s brief. It was held by the Supreme Court in the case of NNPC v. Orhiowasele (2013) 13 NWLR (Pt.1371) 211 at 214 that an issue of jurisdiction could be raised in the brief. Similarly, in Hamzat v. Sanni (2015) 5 NWLR (Pt.1453) 486 an issue of the competence of an action was raised in the respondent’s brief. In determining the issue of jurisdiction. it is the writ and the statement of claim that are the most central processes to look at. The statement of defence is however, not important in sorting out the issue of jurisdiction vide Ahmed v. Ahmed (2013) 15 NWLR (Pt.1377) 274 at 310 – 311, 315, 331 – 332, 352-353, Elelu-Habeeb v. A.-G., Federation and Ors. (2012) 13 NWLR (Pt.1318) 423, MV Scheep v. MV S. Araz (2000) 15 NWLR (Pt.691) 15 NWLR (Pt.691) 662 at 668.PER JOSEPH SHAGBAOR IKYEGH, J.C.A.

ISSUE OF JURISDICTION: WHETHER A COURT THAT LACKS JURISDICTION TO ENTERTAIN A MATTER CAN PRONOUNCE ON THE MERIT OF THE CASE

It was held by the Supreme Court in Akinbobola and Sons v. Plisson Fisko (Nig.) Ltd. (1991) 1 NWLR (Pt.167) 270 that if lack of jurisdiction is the case the Court should not delve into the merit of the case. And it was held in T.G.F.A. (Nig.) Ltd. v. M.L. Ltd. (2005) 17 NWLR (Pt.955) 70 at 86 – 87, Sanusi v. Ameyogun (1992) 4 NWLR (Pt.237) 527, Oro v. Falade (1995) 5 NWLR (Pt.396) at 402 that the Court sitting as an intermediate Court should not pronounce on the merit of the issues argued if the same issues could still arise at the fresh hearing of the case.PER JOSEPH SHAGBAOR IKYEGH, J.C.A.

JOSEPH SHAGBAOR IKYEGH, J.C.A.(Delivering the Leading Judgment): The appeal is from part of the judgment pronounced by the Federal High Court sitting in Lagos (the Court below) wherein it dismissed the appellant’s legs of claim for a declaration that the removal of 56 looms from the premises of the plaintiff by the 1st – 2nd defendants on or about 22.01.96 is unlawful, illegal and is in breach of the terms of the consent judgment dated 23.10.95; N300,000,000.00 being special damages for conversion of the plaintiff’s machinery and trespass committed by the 1st – 2nd defendants on the plaintiff’s premises on 22.01.96; and damages in the sum of N25,000,000.00 for conspiracy between the 1st and 2nd defendants to dispose of all the assets of the plaintiff contrary to the order of Court made on 03.10.95.

In outline, the facts were that the appellant, at all material times was a leading ile company in Nigeria and, in the course of business the appellant became indebted to a consortium of banks represented by the UBA Trustees, the 3rd defendant at the Court below, who was appointed as trustee to hold the assets of the appellant; the loan was secured by a Mortgage Debenture Trust Deed in favour of the consortium of banks; the appellant defaulted in paying the loan; the 3rd defendant appointed the 2nd defendant as Receiver/Manager over the assets of the appellant; the appointment was challenged by the appellant before the Federal High Court; the Federal High Court, with the consent of the parties, ordered that the 2nd defendant together with the appellant’s representative and the Court’s official Receiver sell the appellant’s assets and the proceeds thereof deposited in the Court below whereby it would be paid out to the defendant in the suit and to other parties entitled to it.

In addition, the appellant sourced another credit facility from the respondent in Swiss Franc secured by a loan and mortgage agreement; again, the appellant defaulted in payment; the respondent brought a winding up petition against the appellant at the Federal High Court; the 2nd and 3rd defendants together with other creditors joined the winding up petition as interested parties; the total indebtedness of the appellant to the respondent, according to the petition, was N109,500,120.61; a consent judgment was entered in the winding up petition authorising the sale of some of the assets of the appellant to be identified by the creditors to reduce the indebtedness to acceptable level and for a management body to operate the appellant for the purpose of recovering whatever balance of the indebtedness was left after the sale of identified assets of the appellant.

It was the case of the appellant that the respondent unilaterally entered her premises and seized 56 suizer looms (looms) which the respondent sold under-value at N235,200,000 instead of the value of N548,901,920 at the material time and in disregard of a restraining order issued by a Court and also in breach of the consent judgment; the appellant’s case was that the surplus of N144,699,880 from the sale of her chattel (the looms) by the respondent which was over-paid to the respondent be refunded to her.

On the other hand, the respondent’s case was that it received N235.20 million from the sale of the 56 looms; but that the appellant was still indebted to it in the sum of N499.78 million and relied on the statement of account of the appellant and the consent judgment towards proof of its case that it entered and took the 56 looms lawfully and that it was entitled by the Deed of Legal Mortgage, Exhibit 5, to convert the foreign currency loan at the prevailing exchange rate rather than the N22 to US $1 fixed by the Central Bank of Nigeria (CBN) at the material time.

The Court below held that the looms were removed from the appellant’s premises in execution of the consent judgment, Exhibit 7, therefore the appellant was not entitled to reliefs 4, 7, 10 and 11 of the claim which were dismissed in consequence.

The appellant was dissatisfied with the judgment and appealed against it and filed a brief of argument on 24.03.14 in which it was contended that the Court below relied on the evidence of DW2, a non existent witness to hold that the entry and seizure of the 56 looms by the respondent was lawful when the only witness, DW1, called by the respondent never gave such evidence and when paragraph 16 of the statement of defence and the consent judgment, Exhibit 7, relied upon by the Court below did not support its findings that the seizure of the 56 looms was in execution of the consent judgment and thus lawful which disregarded the uncountered evidence of the PW2 to the contrary and its earlier finding that clause 7 of Exhibit 3 had prior charge over all the 56 looms which override the respondent’s rights as contained in Exhibit 5, therefore the Court below did not give dispassionate evaluation or consideration to the issues and evidence before it which should entitle the appeal to be allowed on that score citing in support Obineche v. Akusobi (2010) 12 NWLR (Pt.1208) 388.

The appellant’s brief contended that in the event the Court holds that the entry and seizure of the 56 looms by the respondent were unlawful, general damages of N25,000,000.00 sought by the appellant should have been granted by the Court below on the premise that the general damages arose from the direct and probable consequence of the act and conduct of the respondent and its agents which occasioned injury of serious magnitude to the ability of the appellant to function as a company citing in support the cases of Yalaju Amaye v. AREC Ltd. (1990) 4 NWLR (Pt.145) 422, Gari v. Seirafina (2008) 2 NWLR (Pt.1070) 1, Ijebu Ode Local Government v. Adedeji Balogun and Co. (1991) 1 NWLR (Pt.166) 136, Rockonoh Property Company Ltd. v. NITEL Plc (2001) 14 NWLR (Pt.733) 468, Gonzee Ltd. v. NERDC (2005) 13 NWLR (Pt.943) 634.

The appellant’s brief contended that having regard to the finding by the Court below that the respondent’s charge on the property was overridden by the charge in favour of the 3rd defendant, the respondent had no right over the 56 looms and the fact that the entry and seizure of the said looms by the respondent who refused to return them upon numerous demand were established by the evidence of PW1 (called by the appellant) to be unlawful and contrary to the consent judgment, Exhibit 7, the Court below should have found the respondent liable in trespass to the goods and based on the unchallenged evidence of PW1 coupled with the valuation of the 56 looms in Exhibits 1 and 2 the Court below should have acted on the said unchallenged evidence to enter judgment for the quantified and particularised special damages of N300,000,000 for conversion which the Court should enter after allowing the appeal and setting aside of the judgment of the Court below citing in support Boniface Anyika and Co. Lagos Nigeria Ltd. v. Katsina U.D. Uzor (2006) 15 NWLR (Pt.1003) 560, Paul Ordia (Trading under the name and style of Central Sawmill Co.) v. Piedmont (Nigeria) Ltd (1995) 2 NWLR (Pt.379) 516, Ojini v. Ogo Oluwa Motors Nigeria Ltd. (1998) 1 NWLR (Pt.534) 353, Gari v. Seirafina (supra) at 1, Ijebu Ode Local Government v. Adedeji Balogun and Co. (supra) 136. The appellant’s brief contended that being partly successful at the Court below in respect of a case filed in 2002 which ended in 2011, the Court below should have awarded costs in her favour following Order 25 Rule 2 (1) and (2) of the Federal High Court (Civil Procedure) Rules 2009 (rules of the Court below) read with the cases of Oketade v. Adeniran (2010) 1 NWLR (Pt. 1195) 63 at 79, CCB Nigeria Plc v. Okpala (1997) 1 NWLR (Pt. 518) 673 therefore the Court should upon allowing the appeal and setting aside the decision of the Court below grant reliefs 4, 10 and 11 of the appellant’s writ of summons contained in the notice of appeal and award costs to the appellant against the respondent.

The respondent’s brief of argument filed on 26.08.16, but deemed as properly filed on 25.04.17, argued that the reference to DW2 instead of DW1 in the judgment of the Court below was a slip which was understood by the parties who have not been misled and should be regarded as so by the Court which has the powers to amend the error to prevent the occurrence of substantial injustice citing in support Adeagbo v. Yusuf (1993) 6 NWLR (Pt. 301) 623 at 632, Amogun v. Adesina (1994) 4 NWLR (Pt. 339) 503 at 509.

The respondent’s brief argued that having regard to the fact that the appellant sought declaratory relief the Court below had the discretion to grant or refuse it and based on the totality of the evidence and on equitable grounds the Court below was right in refusing to grant the declaratory relief by holding that the respondent’s entry in the premises of the appellant and her removal of the looms were pursuant to the consent judgment entered by Bioshogun, J, and thus lawful citing in support the cases of Elendu v. Ekwoaba (1995) 3 NWLR (Pt.386) 704 at 745, Okedare v. Adebara (1994) 6 NWLR (Pt.349) 157 at 179, Ladoja v. INEC (2007) 12 NWLR (Pt.1047) 119 at 181, Bagudu v. F.R.N. (2004) 1 NWLR (Pt.853) 182 at 199.

The respondent argued that the action contained in reliefs 4, 10 and 11 of the writ of summons is for conversion or trespass to goods and conspiracy outside the jurisdiction of the Court below and being an issue of jurisdiction it can be raised at any time; consequently the Court below should not have entertained the action and that aspect of the action should be struck out for want of jurisdiction citing in support Madukolu and Ors. v. Nkemdilim (1962) 2 SCNLR 341, Oloruntoba-Oju and Ors. v. Abdul-Raheem and Ors. (2009) 13 NWLR (Pt.1157) 124 – 125, Adetona v. Zenith Int’l Bank Ltd. (2009) 3 NWLR (Pt.1129) 577 at 594 – 595, Okoroma v. Uba (1999) 1 NWLR (Pt.587) 359 at 379, Posu and Anor. v. The State (2011) 3 NWLR (Pt.1234) 393 at 412, ACN and Anor. v. INEC and Ors. (2013) 13 NWLR (Pt.1370) 161 at 185, Chianugo v. State (20020 2 NWLR (Pt.750) 225 at 236.

It was argued in the respondent’s brief that the 2nd defendant not being a party to the case, the Court below could not have given judgment on the leg of claim of conspiracy against a non party as the conspiracy if found proved would affect the 2nd defendant citing in support Anyanwoko (2010) 5 NWLR (Pt.1188) 497 at 520, Ndulue v. Ibezim (2002) 12 NWLR (Pt.870) 139 at 165, Babatola v. Aladejana (2001) 12 NWLR (Pt.728) 597 or 615, Ogugu v. State (1990) 2 NWLR (Pt.134) 539 at 553, Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt.1079) 172 at 223, Nipost v. Musa (2013) LPELR – 20780.

The respondent’s brief contended that the Court below could not have awarded the damages claimed as they alleged arose from conversion (a tort) not within the jurisdiction of the Court below citing in support the cases of Sha’Aban v. Sambo (2010) 19 NWLR (Pt.1226) 353 at 362- 363, Utih v. Onoyivwe (1991) 1 NWLR (Pt.166) 166 at 216, Trade Bank Plc. v. Benilux (Nig) Ltd. (2003) 9 NWLR (Pt.825) 416 at 433, 7-Up Bottling Co. v. Abiola and Sons (2001) NWLR (Pt.730) 469 at 516.

The respondent’s brief contended that the advantage of priority can only be taken by the lenders not the borrower like the appellant citing in support N.B.C.I. v. Alfijir (Mining) Nig. Ltd. (1999) 14 NWLR (Pt.638) 176 at 196; and that the appellant who claimed the balance of the sale of the looms cannot turn round to maintain that the sale was bad as to allow the appellant to so do would be blowing hot and cold making her presentation of the case inconsistent in view of the appellant’s acceptance that the sale was proper and had set off her indebtedness citing in support Ude v. Nwara and Anor. (1993) 2 NWLR (Pt.278) 638 at 662, Okoro v. Egbuoh (2006) 15 NWLR (Pt. 1001) 1 at 23.

The respondent’s brief contended that whereas the appellant claimed N300 million as sale of the 56 looms, the evidence of PW1 in pages 408 – 411 of the record gave the pre-conversion value of the looms as N563,384,800.00 and appellant’s counsel’s address in page 630 of the record put it at N548,901,920.00 showing a disconnect between the pleadings and the evidence on the claim of special damages, more so the granting of the N300 million special damages will lead to the obvious danger of double compensation for the same tort contrary to the position of the law against double compensation, more so the appellant pleaded bulk sum of N300 million as special damages, not the difference in price of the sold looms which went to no issue citing in support Aluminium Manufacturing Company of Nigeria Ltd. v. Volkswagen of Nigeria Ltd. (2010) LPELR – 3759 (CA), Obasuyi v. Business Ventures Ltd. (2000) 5 NWLR (Pt.658) 668 at 693, Gari v. Seirafina (Nig) Ltd. (2008) 2 NWLR (Pt.1070) 1 at 27 -28, X.S. (Nig) Ltd. v. Taisei (W.A) (2006) 15 NWLR (Pt.1003) 533 at 551, Gonzee (Nig) Ltd. v. NERDC (2005) 13 NWLR (Pt.943) 634 at 649, Tsokwa Motors (Nig.) Ltd. v. U.B.A. Plc (2008) 2 NWLR (Pt.1071) 347 at 366, Usman v. Owoeye (2003) 9 NWLR (Pt. 825) 221 at 242, Awoyegbe v. Ogbeide (1988) 1 NWLR (Pt.73) 695 at 718, Momoh v. Umoru (2011) 15 NWLR (Pt.1270) 217 at 260.

The respondent argued in the brief that the degree of success by the appellant at the Court below was less than 50% and the appellant not having placed materials to show that the Court below did not exercise its discretion properly in not awarding costs which generally follow the event, the exercise of discretion should not be disturbed. More so costs are not awarded on indemnity basis as sought by the appellant citing support Josiah Cornelius Ltd. v. Ezenwa (2002) 16 NWLR (Pt.793) 298 at 316 – 317; and it is on account of the submissions (supra) that the respondent solicited for the dismissal of the appeal with substantial costs.

The reply brief filed on 03.11.16 hashed some of the arguments in the brief on forceful entry of the premises of the appellant by the respondent and conversion of the appellant’s looms by the respondent who sold them under value contrary to the duty on a mortgagor to act bona fide by selling mortgaged property at fair price vide WAB Ltd. v. Savannah Ventures Ltd. (2002) 10 NWLR (Pt.775) 401 at 432.

The reply brief also argued that the Court below exercised the discretion to refuse the declaratory relief on wrong reasons warranting the interference by the Court with the exercise of the discretion vide Akujinwa v. Nwaonuma (1998) 13 NWLR (Pt.583) 632, Ekwunife v. Wayne (WA) Ltd. (1989) 5 NWLR (Pt.122) 422 at 448.

It was further argued that the claim was based on the sale of the entire assets of the appellant contrary to the consent judgment; that the tort of conspiracy like criminal conspiracy can include persons at large and involve a combination of two or more persons which paralysed the business of the appellant and thus made the appellant liable and in breach of the consent judgment vide Adekoya v. State (2010) LPELR 3604 (CA), Sorrell v. Smith (1925) AC 700 at 711, Adie v. State (2013) LPELR – 20038 (CA), Baker Marine Nig. Ltd. v. Chevron Nig. Ltd. (2006) 13 NWLR (Pt.997) 276.

It was argued that the claim for conversion and conspiracy are ancillary to the appellant’s principal claim of accounts in receivership and exercise of the mortgagee’s power of sale in insolvency or liquidation/receivership vide reliefs 1, 2, 3, 4, 5, 6, 7, 8 and 9 of the particulars of claim in page 7 of the record thus within the jurisdiction of the Court below vide Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 at 564; that a mortgagor or debtor can challenge the power of sale where same is malafide and the principle of priority which is applicable to lender only would not operate to bar the challenge vide WAB Ltd. v. Savannah Ventures Ltd. (supra) and that the construction of a loan agreement may implicate rules of priority where the interest of the mortgagor is jeopardised.

The reply brief also argued that the special damages were pleaded in paragraphs 18 – 23 of the further amended statement of claim in pages 686 – 687 of the record; that the undervalue arising from the sale of the said looms was inextricably linked to the acts of trespass, conversion and recklessness on the part of the respondent as testified by PW1 in pages 409 – 411 of the record; that there was no evidence that the appellant recovered in full, so the issue of double compensation will not arise videUsman v. Owoeye (2003) 1 NWLR (Pt.825) 221 at 242, that the appellant’s witness, PW1, gave uncontroverted evidence in pages 405 – 411 and PW2 in pages 413 – 429 (particularly page 426 thereof on the value of the looms which is sufficient and valid to satisfy the requirement of strict proof vide Oando (Nig.) Plc v. Adijere (WA) Ltd (2013) 15 NWLR (Pt. 1377) 374 at 403.

The reply brief argued on costs that the appellant as a successful party was entitled to some costs which follow the event of success, therefore the deprivation of costs to the appellant to indemnify the appellant by the Court below without any given reason by the Court below for the refusal to award costs was an arbitrary exercise of discretion by the Court below, so the Court should interfere by awarding costs to the appellant vide Adenaiya v. Governor-in-Council (1962) 1 ALL NLR 308, Mbanugo v. Nzefili (1998) 2 NWLR (Pt.537) 343 AT 353, Rewane v. Okotie-Eboh (1960) 5 FSC 200 at 206, CCB Nigeria Plc. v. Okpala (1997) 8 NWLR (Pt.518) 673.

In evaluating the evidence in its judgment the Court below referred to DW2 instead of DW1 which the appellant capitalised upon as wrongful exercise of the duty by the Court below to evaluate the evidence dispassionately when in reality the appellant was not misled and referred to DW1 in her brief as well as the respondent who also referred to DW1, the only person that testified in the case. At the end of the day the Court below resolved the case based on the evidence of DW1. It is settled that not every mistake for slip made by a lower Court in its judgment will result in the judgment of that Court being set aside on appeal especially where the mistake is insubstantial and was not shown to lead to miscarriage of justice vide as in this case vide F.B.N. Plc. v. Ozokwere (2014) 3 NWLR (Pt.1395) 439 at 466 – 467 per the lead judgment prepared by his lordship, Onnoghen, J.S.C., (now CJN).

Paragraph 18 (i) to 21 of the further amended statement of claim in pages 686 – 687 of the record pleaded the torts of conversion and conspiracy as follows –

“(i) On or about the 22nd of January 1996, and without the knowledge and consent of the other parties to the consent judgment of Bioshogun J., the 1st and 2nd Defendants clandestinely and aided by armed personnel invaded the premises of the Plaintiff by nightfall and removed 56 brand new looms from the premises of the Plaintiff even though the 1st Defendant only financed the purchase of 32 looms.

19. The 1st and 2nd Defendants have inspite of repeated demands including the filing of various actions and order of Court refused to return the said looms or to disclose the amount they sold the said looms.

20. The Plaintiff avers that the 56 looms unlawfully removed from the premises on 22nd January 1996 were disposed of by the 1st and 2nd Defendants after being served with orders of Court not to sell same and to return them to the premises of the Plaintiff.

21. The Plaintiff avers that the value of all the looms removed by the 1st and 2nd Defendants is in excess of 300 million Naira and will at the trial rely among others document and invoices from the Manufacturers and Suppliers of the looms.”

The further amended statement of claim went on to plead in paragraph 27 in page 689 of the record that the plaintiff (now respondent) claims as per its particulars of claim. The particulars of claim contained in the further amended general form of writ of summons in pages 681 – 682 of the record states –

1. A declaration that the indebtedness of the Plaintiff to the 1st Defendant under the Loan and Mortgage Agreement dated the 18th of October 1995 is 7,355,326.10 SFR or N109,500,126.61 with interest at the rate applicable to judgment of Court from the 3rd of October 1995.

2. A declaration that the 1st Defendant is only entitled to claim from the Plaintiff the sum above stated being the amount claimed by it in its winding up petition in respect of which consent judgment was made on the 3rd of October 1995.

3. A declaration that the 1st Defendant cannot unilaterally increase the judgment sum due to it from 7,355,326.10 SFR or N109,500.126.61 to any other sum without a Court order to that effect.

4. A declaration that the removal of 56 looms from the premises of the Plaintiff by the 1st and 2nd Defendants on or about the 22nd of January 1996 is unlawful, illegal and is in breach of the terms of the consent judgment dated 3rd of October, 1995.

5. A declaration that the disposal of entire assets of the Plaintiff by the 2nd defendant at the instance of or participation of and or encouragement of the 1st defendant is wrongful and in breach of the terms of the consent judgment.

6. A declaration that the Plaintiff has duly discharged all its indebtedness to the 1st defendant under the Loan and Mortgage Agreement dated 18th of October 1995.

7. An Order that the 1st and 2nd Defendants do give a full disclosure of the persons to whom the 56 looms were sold and the amount received for the sale of the looms.

8. An Order that the 1st Defendant to give an account of all payments received by it from (a) the 2nd Defendant, (b) from all other courses arising from the sale of the assets of the Plaintiff.

9. An Order directing the 1st Defendant to pay over to the Plaintiff all sums it has received over and above the sum due to it under the consent judgment of the 3rd of October, 1995.

10. N300,000.00 being special damages for conversion of the Plaintiff’s machinery and trespass committed by the 1st and 2nd Defendants on the Plaintiff premises on 2nd of January 1996.

11. Damages in the sum of N25,000,000.00 for conspiracy between the 1st and 2nd Defendants to dispose of all the assets of the Plaintiff contrary to the order of Court made on the 3rd of October, 1995.

12. Interest at the rate of 21% per annum on the sums due to the Plaintiff after deducting the judgment debt legitimately due to the 1st Defendant from the date of the disposal of the 56 looms removed on the 22nd of January 1996.”

Reliefs 4, 10 and 11 of the further amended general form of writ of summons (supra) as they relate to the appeal are on the tort of conversion and conspiracy. The phrase ‘ancillary’ means supplementary or subordinate vide Black’s Law Dictionary (Eighth Edition) page 95. The reliefs of the tort of conversion and conspiracy (supra) stand independent of the other reliefs. They cannot be said to be subordinate to the other reliefs (supra) as their proof is not dependent on the proof of the other reliefs (supra).

Accordingly I do not, with deference, agree with the appellant that the reliefs for the tort of conversion and conspiracy are ancillary to the other reliefs (supra). For it was held in Adetona v. Zenith Int’l Bank Ltd. (supra) cited by the respondent thus

“I am unable to surmise how a matter that is rooted in trespass can by a stretch of imagination, fall within the operation of the Companies and Allied Matters Act (CAMA). Undoubtedly, same is not within the purview of Section 251(1)(e) of the 1999 Constitution…”.

See also Asaboro v. Pan Ocean Oil (Nig.) Ltd. (2006) 4 NWLR (Pt.971) 595 at 617, Trade Bank Plc v. Benilux (Nig.) Ltd.(supra) at 433. See further Salim v. CPC (2013) 30 W.R.N. 1 at 8, F.M.B.N. v. Olloh (2002) 9 NWLR (Pt.773) 475 – 487 – 477, Obiuweubi v. C.B.N. (2011) 7 NWLR (Pt.1247) 465 to the effect inter alia that apart from one of the parties being an agent of the Federal Government or the Federal Government, the subject matter must be within the jurisdiction of the Court below it will be competent to entertain the action. In this case, none of the parties is an agency of the Federal Government nor is the Federal Government a party in the action and the subject matter is a tort outside the jurisdiction of the Court below.

In the light of the settled position that the Court below (Federal High Court) lacks the jurisdiction to entertain an action in the tort of trespass to goods or conversion and conspiracy, another head of tort, I would allow the appeal on that ground and set aside the decision of the Court below and remit the case to the Hon. Chief Judge of Lagos State for assignment to any learned Judge for speedy determination vide the case of Shell Nigeria Gas Ltd. v. Dec Oil and Gas Ltd. (2011) 10 NWLR (Pt.1256) 457 at 477 read with Section 24(2) of the Federal High Court Act and Section 15 of the Court of Appeal Act. Parties to bear their costs.

MOHAMMED LAWAL GARBA, J.C.A.: After reading a draft of the lead judgment written by my learned brother Joseph Shagbaor Ikyegh, JCA in this appeal, I agree with views expressed and the conclusion on the issue of the jurisdiction of the Federal High Court to adjudicate over the claims for trespass and conversion made by the Appellant against the Respondent. Undoubtedly, that Court lacks the requisite jurisdiction to adjudicate over such claims and on that ground, the appropriate order to make is to send the case or matter to the Court that has the full jurisdiction to adjudicate over all the claims made by the Appellant. See Okoroma v. UBA, Plc. (1999) 1 NWLR (Pt.587) 359 @ 364; Gov., Kwara State v. Lawal (2006) ALL WLR (336) 313 @ 342.

I allow the appeal in terms of the lead judgment.

YARGATA BYENCHIT NIMPAR, J.C.A.: I have read in draft the judgment just delivered by my learned brother, JOSEPH SHAGBAOR IKYEGH, J.C.A.

I agree with the reasoning and conclusion arrived at. I also allow the appeal and abide by the consequential orders made therein.

Appearances:

Prof. T. Osipitan SAN with him, C. O. Aduroja SAN, Mrs. O. Daodu, Miss O. Oladapo, Miss O. Wickliffe, O. O. Aduroja, O. Adewale and Miss G. Adejumo)For Appellant(s)

Prof. A. B. Kasunmu SAN with him,Mrs. K. Yusuf, O. Makonjuola, C. Agboola (Miss) and A. Senbanjo (Miss)For Respondent(s)

Appearances

Prof. T. Osipitan SAN with him, C. O. Aduroja SAN, Mrs. O. Daodu, Miss O. Oladapo, Miss O. Wickliffe, O. O. Aduroja, O. Adewale and Miss G. Adejumo)For Appellant

AND

Prof. A. B. Kasunmu SAN with him,Mrs. K. Yusuf, O. Makonjuola, C. Agboola (Miss) and A. Senbanjo (Miss)For Respondent