HALLMARK BANK PLC & ANOR v. MRS ADEGBOYEGA OBASANJO
(2013)LCN/6134(CA)
In The Court of Appeal of Nigeria
On Friday, the 26th day of April, 2013
CA/L/1133/2010
RATIO
JURISDICTION: MATTERS OF JURISDICTION SHOULD BE ADDRESSED FIRST
Jurisdiction, being a threshold issue, it is pertinent to address this issue first and foremost. And for a proper comprehension of the issue of action, it is necessary to bring to the fore the salient facts as adumbrated on the Statement of Claim, as it is the Statement of Claim of the Claimant and not the Defence that determines jurisdiction ONUORAH VS. KADUNA REFINERY & PETROLEUM CO. LTD. (2005) 6 NWLR pt.921 393 at 904.PER RITA NOSAKHARE PEMU, J.C.A.
CONVERSION: THE NATURE OF CONVERSION AND WHICH COURT HAS JURISDICTION
It is no gainsaying that Conversion is a Tort and same is actionable in High Court of a State.
A cursory look at the Appellants’ brief show that his argument is based on the fact, that it is the nature of the claim that determines jurisdiction. Citing OWENA BANK (NIG) PLC v. PUNJAB NATIONAL BANK (2000) 5 NWLR (Pt.658) 643, where this Court held that where there is a dispute on money had and received in the ordinary course of banking business, and where there was no claim to any fiscal measure or revenue as in the present case, it is the High court that had jurisdiction in the matter.PER RITA NOSAKHARE PEMU, J.C.A.
ACADEMIC SUITS: WHAT IS AN ACADEMIC SUIT
A suit is said to be lifeless or an academic exercise where a decision reached in the matter will not ensure any right or confer any benefit on the successful litigant.
OGBONNA V. PRESIDENT FRN. (1997) 5 NWLR Pt.504 at 281 at 283
NWOBOSI V. ACB. (1995) 6 NWLR Pt.404 at 658 at 665.PER RITA NOSAKHARE PEMU, J.C.A.
JURISDICTION: EFFECT OF A COURT LACKING JURISDICTION
Decidedly, the Courts must put an end to its proceedings on discovery it lacks jurisdiction. HASSAN V. ALIYU (2010) 17 NWLR Pt.1223. 547 at 626 per Adekeye JSC (as she then was).PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
Between
1. HALLMARK BANK PLC
2. NIGERIA DEPOSIT INSURANCE CORPORATION Appellant(s)
AND
MRS ADEGBOYEGA OBASANJO
(Suing by her Attorney, Abiodun Ogundeji Esq.) Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): In paragraph 8 of the Plaintiff’s (at the lower Court) Statement of Claim filed on the 16th of July, 2004, he claims against the Defendant thus:
(a) i. Damages for conversion in the said sum of N11,000,000.00 (Eleven Million Naira); and
ii. Interest on the first N10,000,000.00 (Ten Million Naira) component of the said sum at the Defendant’s time deposit rate of 21% per annum with effect from the 15th day of August, 2002, and on the balance component in the sum of N1,000,000.00 (One Million Naira) with effect from the 20th day of September, 2002 until judgment.
(b) i. Alternatively, payment of the said sum of N11,000,000.00 as money had and received by the Defendants to the use of the Plaintiff; and
ii. Interest on the first N10,000,000.00 (Ten Million Naira) component of the said sum at the Defendant’s time deposit rate of 21% per annum with effect from the 15th day of August, 2002, and on the balance component in the sum of N1,000,000.00 (One Million Naira) with effect from the 20th day of September, 2002 until judgment – pages 8-9 of the Record of Appeal.
This is essentially a reproduction of the claim as endorsed on the Writ of Summons dated the 16th of July, 2004 and filed on same date.
BRIEF FACTS OF THE CASE
At the Court below, the Respondent had sued the 1st Appellant, as Plaintiff. She is resident in the United Kingdom, and sued, and prosecuted the suit by her duly constituted attorney, Biodun Ogundeji Esq. He was the drawer of the cheques, the subject matter of this suit. The Appellant (then Defendant) is the collecting bank of the said cheque.
On the 22nd of July, 2002, and the 11th of September, 2002, respectively the Respondent drew her Fidelity Bank Plc Head Office, Victoria Island, Lagos branch cheques Nos. 00155719 and 00185733 in sums of N10,000,000.00 and N1,000,000.00 respectively in favour of her instruction, to a certain Dr. (Mrs.) Bisi Ogutuga.
The cheques were unlawfully presented by persons yet unknown at the 1st Appellant’s Ikeja Lagos Branch for collection. The 1st Appellant collected the proceeds of the cheques and paid same to the unknown persons.
The Appellants have converted the said cheques to their own use and wrongfully deprived the Respondent thereof.
The Respondent has suffered damages to the face and time value of the said cheques.
The Appellant, in the alternative has had, and received the said sum of N11,000,000.00 to the use of the Respondent and is liable to repay the said sum to her with interest at the Appellants’ time deposit rate.
After a lot of preliminary issues, hearing in this matter commenced on the 27th of October, 2008 – page 266 of the Record, with one Abiodun Ogundeji taken as PW1. She is the Attorney to the Respondent.
She testified that the Respondent, her client, issued two cheques Exhibits D and D1 in favour of one Mrs. Bisi Oguntuga and value was not taken on the cheques. As a result, she wrote to Fidelity Bank, making enquiries about what happened to the cheques. The reply confirmed clearance by the Defendants (Appellants in this Appeal) into an account of an unknown person. She learned that the receiving bank was the 1st Appellant. A letter was written to one Olumide Fusika – Exhibit “E”. The Appellant responded to the letter – Exhibit “F”.
She wrote the 1st Appellant another letter, when it was evident that they were dragging their feet on the issue. Exhibit “G” is the letter. Exhibit “H” was a reply to Exhibit “G”.
That in Exhibit “H”, it was averred that the Appellant had no banking relationship with them. This is why she filed the action in the Court below.
Her alternative claim is for the sum of Eleven Million Naira for money loaned and received by the Appellant, and corresponding interest at 21% per annum, as claimed in the Writ of Summons.
Under cross-examination, she says that the account opening forms for the Appellant is in the names of Bisi Oguntuga Dr. She believes that Fidelity Bank paid this money through Hallmark Bank, as shown on Exhibit “E”
PW2 – Esther Olabisi Oguntuga, testified that Exhibits D and D1 are cheques and were in her names but money was never delivered to her. She does not have an account with the 1st Appellant. The picture on the form is not hers, neither are the signatures on the form, and the phone number thereon. The ID card bearing DB Company Limited is in respect of a Company just opened by her husband and herself.
The card is supposed to bear her name thereon, but it is not her identity card. The signature on the card is not hers. The telephone/fax 037- – is an old phone number of the Company and had not been operated for years. The photocopy of a passport page issued by the Federal Government is not her passport, but is in her name. She has never issued a cheque on Hallmark, nor has she ever been there to collect money.
The signatures on the three cheque leaves of the Appellant, purportedly issued to her, that says “self- Bisi Ogutuga” are not her own. She did not receive the monies endorsed on them. She made no application nor did she receive any cheque book from Hallmark Bank. She wrote no letter. She had never received her statement of account from the 1st Appellant.
Under cross-examination, she says that she has a Bank account with Standard Chartered Bank and GT Bank. Her company’s name is Dee Bee Company Limited.
PW3 – Casmir Chukwuemeka Ekeata was subpoened to testify. He did say that he had never met Olumide Fusika and Bisi Ogutuga, and he does not know them. He did not give any reference to the Appellant with regard to Bisi Oguntuga for the purpose of opening an account That Emmy Motors Limited did not give any reference regarding Bisi Ogutuga for the purpose of opening an account.
He is the Managing Director of Emmy Motors Limited; and the sole signatory of Emmy Motors Limited’s account with Hallmark (the Appellant).
Being shown Exhibit “A”, he says that the handwriting thereon is not his, and he has never seen the form in his life. He does not use his Company reference, but he signs referee forms for those he knows, in his personal capacity.
On the 19th of January, 2010 the defence opened its case, with D.W.1 one Sam Eke Samuel testifying. He is an accountant and has been for seventeen years with the 1st Appellant, four years of which was for NDIC. He works for the 2nd Appellant. The 2nd Appellant is the liquidator of the 1st Appellant and liquidation process is still going on.
He did not pay certain cheques to unknown persons. The beneficiary of that cheque was one Mrs. Bisi Oguntuga, who is a customer of the 1st Appellant, and she had a current account with him, after meeting all the relevant documents required. The cheques were paid into her account. They gave value on the two cheques, and the amounts were reflected in the account of the customer. Mrs. Ogutuga operated her account in line with banking procedures and guidelines.
Withdrawals were done by cheques which they issued. After this, she issued instructions to the Bank to transfer funds from her account to other accounts.
Transfers were made to Vince Interior Nigeria Limited for (N5.3M) and Vince Interior Ltd for the sum of (N1.2M). They gave value in line with instructions.
The account of Vince Interior Ltd were reflected in the sum of N5.3M on the 14th of August, 2002, while on the 12th of August, 2002 another sum of N1.2 Million Naira was paid into it. These monies were not paid to unknown persons. That they did not convert the money unlawfully. That the 1st Defendant acted in good faith and without negligence.
Under cross-examination, he did say that he is not required to know a person personally before opening an account for such person.
That the records do not disclose who is the account officer as in the ‘present case’ But that in the normal course of business, the Branch Manager would have delegated someone as account officer, who is supposed to submit certain documents.
These documents is for the purpose of verifying whether such persons are fit persons to open account. And they are required to check the documents submitted.
He says that he is aware that there was a transfer based on the instructions of the account holder. He is also aware that part of the money ended up in the account of one of the referees to the customer, who opened the account.
That there is no home address on Exhibit “A”. Two transfers (by instruction non-cheques) were effected on the account in question – N1.2 Million on the 2nd of August, 2002 and N5.3 Million on the 14th of August, 2002. The account was opened on the 6th of August, 2002.
He does not have any explanation for the transfer made on the 2nd of August, 2002, neither does he know about, whether Vince was interviewed about money that ended up in his account.
After a perusal of their respective addresses as ordered by the Court on the 2nd of March, 2010, the learned trial Judge, on the 25th of July, 2010, found for the Respondent in the sum of N11,000,000.00 (Eleven Million Naira) with interest as claimed in the alternative in her Writ of Summons, and Statement of Claim.
The Appellant is dissatisfied with the Judgment delivered by C.E. Archibong J, delivered on 26th day of July, 2010, in the Federal High Court sitting in Lagos, and has appealed it – pages 489-503 of the Record of Appeal.
Accordingly, pursuant to the Practice Directions of this Honourable Court, the Appellant filed a Notice of Appeal on the 5th of October, 2010 with eight (8) grounds of appeal – pages 505-510 of the Record of Appeal.
Learned counsel for the respective parties filed their Briefs of Argument. The Appellants’ brief was filed on the 21st of December, 2010, and same is settled by Chimezie Victor C. Ihekweazu Esq. while the Respondent’s brief was filed on the 21st of January, 2011 and same was settled by Adeyinka Olumide-Fusika Esq.
The Appellants filed a reply brief on the 7th of February, 2011.
Learned counsel for the respective parties adopted their respective Briefs of Argument on the 5th of February, 2013.
In his Brief of Argument filed on the 21st of December, 2010, the Appellants has distilled seven (7) issues for determination.
They are:
(1) Whether under the law the Federal High Court has jurisdiction to entertain an action founded on conversion and/or money had and received (GROUND ONE).
(2) Whether it was material for the Respondent/Plaintiffs witness to be cross-examined on the conveyance of her cheques as held by the trial judge in deciding the Respondent/Plaintiffs claim for money had and received (GROUND TWO).
(3) Whether the failure of the trial judge to consider the legal authorities cited by the Appellants in its application to the evidence on preponderance of evidence occasioned a miscarriage of justice against the Appellants (GROUND THREE).
(4) Whether on balance of probabilities and considering the evidence before the lower Court on the Account opening formalities applied in the opening of the account of Dr. Bisi Ogutuga in the 1st Appellant Bank at the material time, the 1st Appellant acted satisfactorily and without negligence (GROUNDS FOUR AND FIVE).
(5) Whether the learned trial judge was right when he held that the name Obasanjo alone should have occasioned some extreme caution in relation to a newly opened account (GROUND SIX).
(6) Whether a Court of Law can assume jurisdiction to continue a matter where a condition precedent for the exercise of such jurisdiction has not been fulfilled (GROUND SEVEN).
(7) Whether the award of cost in the sum of N25,000 (Twenty Five Thousand Naira) in favour of the Respondent was justified and sustainable in the circumstance (GROUND EIGHT).
On the part of the Respondent, he distilled four issues for determination. They are:
(1) Having successfully objected to the jurisdiction of the Lagos State High Court over the subject matter of Respondent’s claim leading to the subsequent filing and determination of the Respondent’s suit before the Federal High Court without objection to jurisdiction, whether the Appellant can in this Appeal turn round to affirm the jurisdiction of the Lagos State High Court and question the jurisdiction of the Federal High Court in the matter?
ALTERNATIVELY:
(ii) Whether or not a claim in tort arising in connection with or pertaining to the activities of the Appellant as a Bank is incompetent before the Federal High Court (Ground 1 of the Appeal)
(2) Whether or not the learned trial Judge wrongly continued proceedings and exercised jurisdiction in the suit after the 1st Appellant went into liquidation?
(Ground 7 of the Appeal)
(3) Whether or not the Appellant was rightly found and adjudged by the learned trial judge to have carried on its banking business in a manner harmful to the Respondent and therefore liable for the loss thereby occasioned to the Respondent? (Grounds 2-6 of the Appeal).
(4) Whether or not the learned trial Judge wrongly awarded N25,000. as costs of the proceedings against the Appellant? (Ground 8 of the Appeal).
A cursory look at the issues for determination of both parties, show that the vexed issue of jurisdiction of the Federal High Court obtains in these issues.
For instance, the 1st issue for determination of the Appellants’ brief of argument is
“Whether under the law the Federal High Court has jurisdiction to entertain an action founded on conversion and/or money had and received.”
The 1st issue in the Respondent’s brief of argument is
“Having successfully objected to the jurisdiction of the Lagos State High Court over the subject matter of the Respondent’s claim leading to the subsequent filing and determination of the Respondent’s suit before the Federal High Court without objection to jurisdiction, whether the Appellant can in this appeal turn round to affirm the jurisdiction of the Federal High Court in the matter.”
Jurisdiction, being a threshold issue, it is pertinent to address this issue first and foremost. And for a proper comprehension of the issue of action, it is necessary to bring to the fore the salient facts as adumbrated on the Statement of Claim, as it is the Statement of Claim of the Claimant and not the Defence that determines jurisdiction ONUORAH VS. KADUNA REFINERY & PETROLEUM CO. LTD. (2005) 6 NWLR pt.921 393 at 904.
At the Court below, i.e. Federal High Court the plaintiff’s (Respondent in this Appeal) claims against the Defendants (Appellants in this Appeal) viz:
(a) (i) Damages for conversion in the said sum of N11,000,000.00 (Eleven Million Naira) and
(ii) Interest on the first N10,000,000.00 (Ten Million Naira) component of the said sum at the Defendants’ time deposit rate of 21% per annum with effect from the 15th day of August, 2002, and on the balance component in the sum of N1,000,000.00 (One Million Naira) with effect from the 20th day of September, 2002 until judgment.
It is true to say that the crux of the Plaintiff’s case at the lower court was for damages for conversion and in the alternative, for money had and received.
It is no gainsaying that Conversion is a Tort and same is actionable in High Court of a State.
A cursory look at the Appellants’ brief show that his argument is based on the fact, that it is the nature of the claim that determines jurisdiction. Citing OWENA BANK (NIG) PLC v. PUNJAB NATIONAL BANK (2000) 5 NWLR (Pt.658) 643, where this Court held that where there is a dispute on money had and received in the ordinary course of banking business, and where there was no claim to any fiscal measure or revenue as in the present case, it is the High court that had jurisdiction in the matter.
The Respondent had, on his part argued that the Appellants had not objected to jurisdiction at the lower Court. With respect, this reasoning is utterly misconceived as parties cannot agree to consent to jurisdiction where there is none.
The Respondent had in the alternative argued that the claim in tort arise out of, and in connection with, or pertained to the activities of the Appellant as a Bank, thereby bringing it within the ambit of the Federal High Court.
He argues that the Respondent is not a customer of the Appellants, and this is not a dispute between an individual customer and his bank in respect of transactions between the Respondent as customer of the Appellants, and the Appellants as Respondent’s bankers.
That even if such disputes were excluded from jurisdiction, otherwise generally and exclusively conferred on the Federal High Court by Section 251(1)(d) of the 1999 Constitution, that cannot in any sense operate to exclude the jurisdiction of the Federal High Court over the Respondent’s case.
He further argues that what determines whether the Respondent’s suit is connected with, or pertaining to banking, and therefore within the jurisdiction of the Federal High Court is the subject matter disclosed by the suit and not the category of law (whether Law of Contract or of Tort) under which the Respondent claims damages.
In his Judgment, the learned trial Judge had this to say inter alia
“Now going to the evidence before the Court. It is no where testified how the Plaintiff conveyed her cheques to the Drawee.” Page 500 of the Record of Appeal.
Again he says
“With the non sighting of this huge mammal, an allegation of conversion of the Plaintiff’s cheques is unsustainable.” –
Page 500 of the Record of Appeal.
He went on
“The other unstated issue is that both parties to this suit together with the Drawee and definitely one of the mentioned Referees of the Account Opener, never identified in these proceedings but hinted at, were all victims of a theft or Dr. Bisi Ogutuga’s identity. And I so find.
Further the point of theft could only have been close to and approximate to Dr. Bisi Ogutugo because the account opened was able to get some of her authentic particulars, such as her involvement with DB Company Limited, a Company she testified, she jointly runs with her husband. There is no testimony as to whether she ever collected the cheques. But it is very clear that those cheques were brought, under some cover, never to her doorstep; from which particulars about her were easily obtained and utilized in the course of denying her the value from the cheque.
One cannot determine the degree of negligence from either the Plaintiff or the Drawee of her cheques, Dr. Bisi Ogutugo; because the pleadings and the witnesses testimonies were silent on relevant details relating to the conveyance of the cheques.”
At page 502, he observed thus
“I find that Hallmark as the collecting bank had and received the plaintiff’s N11 Million cleared from cheques. She drew, and it paid out same without due caution and professionalism and non-enquiry into the account of an obviously fraudulent customer Vynace Interior Nigeria Limited…”
The Statement of Claim is at pages 8-9 of the Record of Appeal. It is of eight (8) paragraphs. There is nothing to show that the Plaintiff had any normal banking transaction with the Defendant by way of Banker/Customer relationship. It was a clear and unequivocal claim for damages for conversion, or in the alternative payment for money had and received.
It therefore is not one, on the face of the Writ of Summons and Statement of Claim, that is within the jurisdiction of the Federal High Court.
In view of the fact that the lower Court found for the Plaintiff at the lower Court, he erred in law for even assuming jurisdiction.
This issue is resolved in favour of the Appellants and against the Respondent.
The resolution of this issue in favour of the Appellants makes any consideration of the other issues in this appeal an acedemic exercise.
Having held that the Federal High Court has no jurisdiction to entertain the action, this knocks the bottom off the matter, as other issues for determination now become no longer live issues but indeed are dead.
To consider the other issues for determination becomes one of acedemic exercise which is frowned at by the law. Appellate Courts do not entertain issues which will amount to embarking on an academic voyage. OLORI MOTORS CO. LTD. V. UNION BANK OF NIG. PLC (2006) 10 NWLR Pt.989 586 at 606.
A suit is said to be lifeless or an academic exercise where a decision reached in the matter will not ensure any right or confer any benefit on the successful litigant.
OGBONNA V. PRESIDENT FRN. (1997) 5 NWLR Pt.504 at 281 at 283
NWOBOSI V. ACB. (1995) 6 NWLR Pt.404 at 658 at 665.
Decidedly, the Courts must put an end to its proceedings on discovery it lacks jurisdiction. HASSAN V. ALIYU (2010) 17 NWLR Pt.1223. 547 at 626 per Adekeye JSC (as she then was).
The result is that the appeal succeeds and is hereby allowed.
This matter shall be remitted to the Chief Judge of the High Court of State for trial by a Judge of that Court. Parties shall bear their own costs.
AMINA A. AUGIE, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother, Pemu, JCA, and I agree with his reasoning and conclusion. It is easy to resolve this appeal because jurisdiction of a Court is the lifeline of an action; if a Court lacks jurisdiction, it automatically lacks the necessary competence to try the case – see Achebe v. Nwosu (2003) 7 NWLR (pt.818) 103; University of Ilorin v. Adeniran (2003) 17 NWLR (pt.849) 214; & Akeem V. Unibadan (2003) 10 NWLR (pt.829) 584, NEPA V. Edegbero (2002) 18 NWLR (pt.789) 79, Trade Bank Plc. V. Benilux (Nig.) Ltd. (2003) 9 NWLR (pt.825) 416, where the Supreme Court held that for the purposes of determining the exclusive jurisdiction of the Federal High Court “the Court must carefully examine the facts of the case to see whether they justify the application of the sub-section”. It is also well known that Courts guard their jurisdiction jealously – see A-G., Lagos State V. A-G., Fed. (2004) 18 NWLR (pt.904) 1 @ 89, wherein Uwais, C.J.N. observed that –
“It is a general principle of law that the Court will not readily deny itself jurisdiction unless the jurisdiction is expressly ousted by legislation”.
In this case, much as the Federal High Court was eager to hold on to this case, the facts averred to in the Respondent’s Statement of Claim show clearly that her claim is not that comes within the jurisdiction of the Federal High Court. Besides, the fact that the Appellants had not objected to its jurisdiction is not enough to bestow jurisdiction on it to entertain the Respondent’s claim.
Thus, I also allow the appeal. I abide by the consequential orders in the lead Judgment including the order that parties will bear their own costs.
FATIMA OMORO AKINBAMI, J.C.A.: This appeal is premised on the issue of the jurisdiction of the Federal High Court viz a viz the claims of the respondent against the appellant for damages, for conversion of the sum of N11,000,000. The issue of jurisdiction is a threshold matter, which must be settled immediately it is raised before a court in any proceedings.
The statement of claim determines the jurisdiction of the court to adjudicate on the subject matter. The claim of the respondent in the lower court is premised on damages for conversion for money had and received. Conversion is a Tort actionable in the High Court of a State.
Parties cannot agree to consent to jurisdiction, the respondent’s argument that the appellant had not objected to jurisdiction at the lower court is misconceived.
I agree with my learned brother PEMU, ICA who has exhaustively dealt with the issues in this appeal.
This appeal succeeds and I also allow the appeal.
I abide by the orders made in this appeal.
Appearances
C. V. C Ihekweazu Esq., with A. C. Eze Esq and I. A. Onyebuchi Esq.For Appellant
AND
Olumide Fusika Esq. with Him A. Fawehinmi Eboka (Mrs.) and Ozienpogoson Esq.For Respondent
