KEYSTONE BANK v. DAZZ MOTORS LTD & ANOR (2020)

KEYSTONE BANK v. DAZZ MOTORS LTD & ANOR

(2020)LCN/14175(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, May 21, 2020

CA/L/1577/18

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

KEYSTONE BANK LIMITED APPELANT(S)

And

DAZZ MOTORS LIMITED 2. EMMANUEL OLU JACK RESPONDENT(S)

RATIO

JURISDICTION OF THE COURT IN THE DETERMINATION OF A SUIT

It is not in doubt that jurisdiction of a Court to determine a suit is of utmost importance and a Court that has no jurisdiction to determine a matter will labour in vain if it proceeds to determine same.

The Supreme Court in the case of ALADEJOBI VS N.B.A. (2013) 15 NWLR (Pt.1376) page 66 at 81, defined jurisdiction thus:
“It is said to be the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. Such authority of the Court is controlled or circumscribed by the statute creating the Court itself or it may be circumscribed by a condition precedent created by a legislation which must be fulfilled before the Court can entertain the suit. It is the power and authority of a Court to hear and determine a judicial proceeding and power to render particular judgment in a cause of action.”
Following from the definition quoted above, a trial Court can assume jurisdiction to determine any matter before it where all the factors expounded in the leading authority on jurisdiction are present, that is, the case of Madukolu &, Ors. v. Nkemdilim & Ors. (1962) All N.L.R. (Pt. 3) 581 at 589 – 590 where the position of the law was laid down by the Apex Court, Per BAIRAMIAN, J.S.C, thus:
“Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a Court. Put briefly, a Court is competent when (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction: and (3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided, the defect is extrinsic to the adjudication.”
The jurisdiction of a Court to determine a case may also be determined as per subject matter of the case, the parties between whom the issue in contention is joined, or the kind of relief sought. These factors operate exclusively of one another such that if any one is faulty, in spite of the other two being present, the Court cannot exercise any valid jurisdiction. The mere presence of one feature does not exclude the need for the presence of all other features. See Angadi V. P.D.P & Ors. (2018) LPELR-44375 (SC). And, also in determining whether a Court has jurisdiction on a matter before it the law is settled that the pleadings of the plaintiff contained in his statement of claim is the only process to be considered. See Inakoju V. Adeleke (2007) 4 NWLR (pt. 1025) 427 at 588 to 589, Adetayo V. Ademola (2010) ALL FWLR (pt. 533) 1806 at 1825 to 1826. PER ALIYU, J.C.A.

WHETHER OR NOT THE RELATIONSHIP BETWEEN A BANK AND ITS CUSTOMERS IS CONTRACTUAL

It is the law that the relationship between a bank and its customers is contractual and in this case it is especially so because the dispute arose from the offer and acceptance of loan facilities over many years between the parties. Indeed, the Respondents pleaded these letters of offer of the various loan facilities, which no doubt contained the terms and conditions of the facilities agreed by the parties. See FCMB Plc V. Benbok Ltd (2014) LPELR-23505 (CA)and U. B. A. Plc V. Uzochukwu (2017) LPELR-42787 (CA). PER ALIYU, J.C.A.

THE FUNCTION OF AN EXPERT WITNESS

The main function of an expert is to assist the Court to find the truth in the judicial process. The expert’s opinion on any fact in issue is simply evidence, which must be considered and evaluated along with the other pieces of evidence before the trial Court, and the trial Court must fully be in control of all the evidence adduced before it, and it must perform its primary duty of assessing all the evidence including expert evidence and forming its own opinion thereto. The trial Court is not bound to accept and act on expert evidence without proper evaluation, and neither should the parties be made to accept such evidence. See Ayadi & Ors. V. Mobil Producing (Nig.) Unltd (2016) LPELR-41599 (CA), Bille V. State (2016) LPELR-40832 (SC), Oyem V. FRN (2013) LPELR- 20836 (CA) and Matraco Inv. Nig. Ltd & Anor. V. Sterling Bank (2013 LPELR-21865 (CA) where this Court, Per Mbaba, JCA succinctly put the position of the law on expert evidence as follows:
“It must also be stated that, even where a witness is recognized and regarded as an expert for the purpose of the Section 68 of the Evidence Act, the opinion proffered by him remains an opinion and is never binding on the Court! It is only of persuading effect. See the case of UWA PRINTERS NIG. LTD VS. INV. TRUST COY (1988) NWLR (PT. 92) 110; OR 1988 LPELR – SC.217/1986 held 3: “An expert may give his opinion upon facts which are either admitted or proved by himself, or other witness in his hearing at the trial or are matters of common knowledge, but where the opinion is based on report of facts, these facts, unless they are within his personal knowledge must be proved independently, that is, by calling witnesses who are personally concerned in the transaction.” Per Wali JSC.” PER ALIYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of the Lagos State High Court (trial Court) delivered on the 5th November, 2018, in respect of Suit No: LD/2115CMW/2016. The Respondents were the plaintiffs in the suit and they took out a writ of summons claiming declaratory and other injunctive reliefs against the Appellant and the Assets Management Corporation of Nigeria (AMCON) as the defendants.

The Appellant was the banker of the Respondents and in the course of their banker/customer relationship, it granted several loan facilities to the Respondents over many years, which were secured by the Respondents’ landed property located at Port Harcourt, in Rivers State. The Respondents (plaintiffs) claimed that they have been repaying the facilities to the Appellant as at when due and indeed they fully repaid the Appellant all the facilities even in excess. They alleged that they no longer owed the Appellant any sum from the loan facilities, rather it is the Appellant that owed them large sums of money representing spurious and illegal bank charges including interests refunds, gleaned

against total deposit in the accounts and other charges. The Respondents alleged that the Appellant owed them the sums of money which arose as a result of the Appellant’s habit of charging them interest rate on the facilities that was over and above rates agreed upon by the parties and that was also above the Central Bank of Nigeria (CBN) interest rate regulation circulars issued over the period of the facilities. (See pages 1 to 28 of the main record of appeal).

AMCON, as the 2nd Defendant in the suit filed its statement of defence denying the claim of the Respondents. It asserted that it was not part of the credit facilities agreement or any lending agreement between the Appellant and the Respondents. It was also not part of any alleged spurious, illegal or excessive charges allegedly made against the accounts of the Respondents by the Appellant, which was as a result of the terms of their contractual relationship as contained in the credit facility agreements. It further asserted that the law establishing it only empowers it to assume the position of a statutory creditor with the sole mandate of purchasing the non-performing loans of eligible

financial institution but it is not empowered to buy the obligations a financial institution owes its customers. It also raised objection to the jurisdiction of the trial Court to hear the Respondents’ case against it as a Federal Corporation. See pages 29 to 31 of the main record of appeal).

However, before the trial commenced, precisely on the 19th December, 2016, the Respondents filed a notice of discontinuance of the suit against AMCON leaving the Appellant as the only defendant in the suit. (See page 32 of the main record). The Appellant then filed its statement of defence by which it denied the claims of the Respondents and it asserted inter alia that it has sold the Respondents’ debt to AMCON on the 31st December, 2010 and thereafter it had nothing to do with the said debts. It also challenged the jurisdiction of the trial Court to entertain the Respondents’ suit. See pages 35 to 37 of the main record of appeal.

The Appellant proceeded to file before the trial Court an application by a motion on notice on the 5th October, 2018, by which it prayed the trial Court to strike out the Respondents’ suit on the ground that the

2nd Defendant AMCON is an agency of the Federal Government of Nigeria and it was sued in respect of its administrative and management functions. That, in view of the provisions of Section 251(1)(q) of the Constitution of Nigeria, 1999 (as amended) the trial Court has no jurisdiction to entertain the suit. The Appellant further prayed the trial Court to set aside its order made two years earlier, striking out the name of AMCON as 2nd defendant from the suit. The ground for the second prayer was that the order striking out AMCON as the 2nd defendant in the suit was null and void being an order made without jurisdiction.

After consideration of the arguments of counsel on both sides for and against the application, the trial Court delivered the vexed ruling, Coram, O. Atinuke Ipaye, J. and held that:
“It cannot be over-emphasized that jurisdiction is determined by the claim before the Court. As I observed earlier, the claimant maintains corporate accounts with the defendant- a commercial bank- and has alleged inter-alia on her pleadings that her accounts have been manipulated by the application of spurious charges and interests. And it is

glaringly obvious that this is a dispute between a customer and her bank. By the combined provisions of Sections 251(1)(d) and Section 272(1) of the Constitution of the Federal Republic of Nigeria, as amended, the claims before the Court falls squarely within the jurisdiction of the State High Court and I so hold.”

On the prayer of the Appellant to the trial Court to set aside its earlier decision striking out AMCON as a defendant to the suit, the trial Court held that the Appellant was free to appeal against that decision because it has become functus officio with regards to the said order already made and issued. Consequently the Appellant’s application was dismissed for lack of merit.

Aggrieved by the ruling of the trial Court, the Appellant appealed against same and the order striking out AMCON as the 2nd defendant, through its notice of appeal filed on the 15th November, 2018, by which it relied on four (4) grounds of appeal. The main record of appeal was transmitted on the 24th December, 2018 and an additional record transmitted by the Respondents on the 22nd March, 2019. The Appellants’ brief of argument was settled by I. C.

Ifediora Esq., and filed on the 25th January, 2019, by which they proposed the following two issues for the determination of this appeal:
1. Whether the High Court of Lagos State has ab initio jurisdiction to determine this suit, and if it does not, whether the Court can confer jurisdiction on itself by striking out the 2nd Defendant, AMCON from this suit? (Distilled from grounds 1, 2, and 3 of appeal)
2. Whether the lower Court was right when it made order No. 5 in its enrolment of order dated 21-9-2018 (which is contained at page 38 of the record of appeal) as follows:
“5. FINALLY IT IS HEREBY ORDERED that both parties shall file not later than 7 days from today an undertaking to be bound by the findings made on the Report by the Independent Reviewer.” (Framed from ground 4 of the notice of appeal).

The Respondents’ brief of argument was settled by Mrs. Oyetan Janet Taiwo and filed on the 22nd March 2019. Therein, they proposed two issues for determination from the grounds of appeal thus:
1. Whether the lower Court has jurisdiction to entertain this matter or whether the lower Court had jurisdiction over the

Appellant.
2. Whether the lower Court has the power to appoint an independent auditor to review the disputed account statement which forms the subject matter of this suit and whether it has the power to make ancillary order relating thereto.

The appeal came up for hearing on the 9th March, 2020. Learned counsel for the Appellant I. C. Ifediora adopted the Appellant’s brief in urging the Court to allow the appeal and strike out the suit before the trial Court. The learned counsel to the Respondents also adopted their brief but prayed the Court to dismiss the appeal and affirm the ruling of the trial Court.

I have given due consideration to the grounds of appeal and the issues formulated therefrom by the parties. The questions in controversy between the parties relate to the jurisdiction of the trial Court to determine the suit before it and the legality of the order it issued to the Institute of Chartered Accountants of Nigeria (ICAN) as an independent reviewer of the Respondents’ accounts with the Appellant. I note that the issues formulated by the parties are similar in context but different in style of language, though regrettably

inelegantly drafted by each side. This Court as an appellate Court is entitled to prefer issues formulated by any of the parties for the determination of the appeal. It is also at liberty to re-formulate issues proposed by the parties for lucidity and which we consider pertinent to the determination of the questions in controversy so long as the issues captured the complaint in the grounds of appeal. See Titiloye & Ors. V. Olupo & Ors. (1991) LPELR-3250 (SC), Yisi (Nig.) Ltd V. Trade Bank Plc (2013) LPELR-20087 (SC), Abimbola & Anor. V. INEC & Ors. (2009) LPELR-8526 (CA) and Nzekwe V. Anaekwenegbu (2019) LPELR-49002 (SC).

For my determination of this appeal, I adopt the Appellant’s proposed two issues for the determination of this appeal. However, for lucidity the two issues are re-formulated as follows:
1. Whether the trial Court has jurisdiction to determine the Respondents’ suit as constituted by their originating processes. (Distilled from grounds 1, 2 and 3 of appeal).
2. If answer to issue one is resolved in the affirmative, was the trial Court right to order the parties to file undertaking to abide by the

finding to be made by ICAN as an independent reviewer of the bank accounts of the Respondents. (Distilled from ground 4 of appeal).

SUBMISSIONS OF COUNSEL ON ISSUE ONE
The Appellant’s argument on whether the trial Court has jurisdiction to determine the Respondents’ suit is contained from pages 4 to 9 of its brief of argument. The Learned Appellant’s counsel referred to and relied on the provisions of Sections 251(1)(p), (q) and (r) of the Constitution of Nigeria 1999 (as amended); Sections 2(1) and (2), 5, 25, 29, 30, 32 to 42 of the AMCON Act, 2010 and reliefs 45v, 45w and 46 contained in the Respondents’ statement of claim. He submitted that AMCON as the 2nd defendant in the writ and statement of claim of the Respondents is an agency of the Federal Government of Nigeria. The reliefs sought by the Respondents in paragraphs 45 to 46 of their statement of claim are declaratory and injunctive reliefs against the actions and decision of AMCON as an agency of the Federal Government. In view of the provisions of the Constitution and AMCON Act aforementioned, only the Federal High Court has the exclusive jurisdiction to grant the

reliefs sought by the Respondents in the said paragraphs 45v, 45w and 46 of their statement of claim.

It was further submitted that where there is a Court that has jurisdiction over the whole claim and another Court that only has jurisdiction over some of the claims, it is improper to approach the Court with only jurisdiction over some of the claims. That, in this case, the lower Court being High Court of Lagos State has no jurisdiction to grant reliefs 45v, 45w and 46, while the Federal High Court has jurisdiction to determine all the reliefs including the reliefs concerning banker/customer relationship. Also that since the trial Court has no jurisdiction over AMCON, it equally has no jurisdiction over the Appellant and on the entire suit of the Respondents. Further contended that the fact that the Respondents filed its originating processes with the name of AMCON as 2nd Defendant over which the trial Court had no jurisdiction, means the trial Court lacks jurisdiction on the entire suit. It was also contended that the withdrawal of the suit against AMCON by the Respondents would still not confer jurisdiction on the trial Court to determine the case. In

the circumstances, the trial Court ought to have struck out the suit we were urged upon to so hold. We were referred to a host of authorities including Tukur V. Govt of Gongola State (1989) 3 N.S.C.C. 214 at 241, NDIC V. Okem Enterprises Ltd (2004) 4 S.C. (pt. 11) 77, Adisa V. Oyinwola (2000) 6 SCNJ 290, Ukpong V. Commissioner of Finance & Anor. (2006) 11-12 SC 36 and Abubakar V. Usman (2018) LPELR-44089(CA) to support the argument and in urging the Court to use its powers under Section 15 of the Court of Appeal Act to strike out the suit before the trial Court.

The Respondents’ argument on this issue is contained in pages 6 to 14 of their brief of argument. It was submitted that contrary to the argument of the Appellant, the trial Court has jurisdiction to determine the suit as presently constituted in view of the fact that they discontinued the suit against AMCON and its name was struck out from the suit. As such, there is only one defendant in person of the Appellant in the suit, over whom the trial Court has jurisdiction. Relying on the case of NDIC V. Okem Enterprises Ltd (supra), the Respondents’ learned counsel submitted that the trial Court

has jurisdiction to determine their suit which subject matter is dispute between banker and customer.

It was further argued that in order to determine whether the Court has jurisdiction to determine a matter or not, it is the claims of the plaintiff that are examined. In this case, the cause of action borders on the dispute between the Appellant and the Respondents, being banker and its customers. That, AMCON’s Involvement in the matter was because the alleged loan was sold to it, and since its name was struck off from the suit, all the claims against it is deemed abandoned. It was posited that the trial Court was right when it held that the discontinuance of the action takes effect from the date of the filing of the originating processes. The fact that the trial Court did not make an expressed order for the amendment of the processes to reflect the names of the current parties after striking out AMCON as a party in the suit did not take away the jurisdiction of the Court to determine the suit. This is especially so since the suit is still at preliminary stage and case management conference has not commenced, not to talk of trial. It was contended

that the Appellant’s learned counsel misapplied the law in his arguments because it is the claims of the claimant that confers jurisdiction on the Court, and in the eyes of the law, every claim relating to AMCON no longer exists with the striking out of its name as a party to the suit.

The learned Respondents’ counsel also submitted that the Appellant’s argument and reliance on Sections 251 of the Constitution regarding AMCON being an agency of the Federal Government is academic because AMCON is no longer a party to the suit before the trial Court. It was also argued that the suit was not questioning nor challenging the validity of AMCON’s administrative or executive action but dispute between the Appellant as a banker and the Respondents as its customers and the lower Court has jurisdiction on the suit. This Court was urged to so hold. The Court was referred to the cases of Pam & Ors. V. A. B. U. & Ors. (2013) LPELR-21406 (CA) The A. G. Ekiti State & Ors. V. Adewumi & Anor (2002) LPELR-3160 (SC), Maska & Anor. V. Ibrahim & Ors. (1999) 4 NWLR (pt. 599) and UBA V. Ukachukwu & Anor (2013) LPELR-22045 (CA)

among others, in support of the submissions.

RESOLUTION OF ISSUE ONE
It is not in doubt that jurisdiction of a Court to determine a suit is of utmost importance and a Court that has no jurisdiction to determine a matter will labour in vain if it proceeds to determine same.

that is, the case of Madukolu &, Ors. v. Nkemdilim & Ors. (1962) All N.L.R. (Pt. 3) 581 at 589 – 590 where the position of the law was laid down by the Apex Court, Per BAIRAMIAN, J.S.C, thus:
“Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a Court. Put briefly, a Court is competent when (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction: and (3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided, the defect is extrinsic to the adjudication.”
The jurisdiction of a Court to determine a case may also be determined as per subject matter of the case, the parties between whom the issue in contention is joined, or the kind of

relief sought. These factors operate exclusively of one another such that if any one is faulty, in spite of the other two being present, the Court cannot exercise any valid jurisdiction. The mere presence of one feature does not exclude the need for the presence of all other features. See Angadi V. P.D.P & Ors. (2018) LPELR-44375 (SC). And, also in determining whether a Court has jurisdiction on a matter before it the law is settled that the pleadings of the plaintiff contained in his statement of claim is the only process to be considered. See Inakoju V. Adeleke (2007) 4 NWLR (pt. 1025) 427 at 588 to 589, Adetayo V. Ademola (2010) ALL FWLR (pt. 533) 1806 at 1825 to 1826.

In this case, the Respondents (as the Claimants before the trial Court) pleaded in paragraphs 4 to 11 of their statement of claim facts that gave rise to this case when they asserted that:
“4. The 1st and 2nd Claimants maintained Account Numbers 1005122056 and 1011105609 respectively with the first defendant, and the 1st defendant granted the Claimants facilities. Offer letters dated 19/11/2007, 18/02/2001, and 28/07/2008 are hereby pleaded.
5. The Claimants aver that

the subject offer letters were all accepted to be construed with, governed and regulated by extant, prevailing and relevant laws of the Federation of Nigeria.
6. That the subject facilities were secured by the 2nd Claimant’s properties at No. 25 Chief Mgba Close, Worji, Port Harcourt, Rivers State, Nigeria valued at N320 Million by Palmer & Partners as at November 2007.
7. That sometimes in June, 2012, the 1st Claimant purportedly sold the facilities to the 2nd Defendant and the 2nd Claimant paid a total sum of N17,550,425.91 to the 2nd Defendant upon making a demand thereof.
8. That the Claimants aver that they have been performing their obligations as regards the repayment of the subject facilities referred to in the preceding paragraph 4 above and indeed have fully repaid the facilities even in excess.
9. That the Claimants averred that they are not owing the Defendants any sum as at the date, rather, it is the Defendants that are owing them the sums representing spurious and illegal Bank Charges (including interest refund at the prevailing Central Bank of Nigeria Monetary policy Rate), gleaned alleged total deposit in the

Accounts, 100% Penalty of Excess Charges and 100% Penalty of Gleaned alleged total deposit.
10. That the above stated sum arose as a result of the Defendants’ habit of charging interest on the subject facilities over and above the interest rates agreed upon and the Relevant CBN Interest rate regulation circulars which are binding on all the banks operating in Nigeria, the said stated sums also includes spurious and extraneous charges by the Defendants which were not in Guide to Bank Charges and the Claimants aver further that they are entitled to the total deposits in their accounts as a result of the fraud perpetrated in the accounts by the Defendants.
11. The Claimants aver that the Defendants also plagued and imposed on their Accounts series of spurious and extraneous charges not agreed upon and even charged far and above the interest rates agreed upon. The Defendants arbitrarily and unilaterally varied the terms of the transaction especially the interest Rates.”

I have earlier on stated, in summary the reliefs sought by the Respondents against the Appellant as per their statement of claim and writ of summons based on the facts

inter alia stated in their statement of claim. (See pages 1 to 28 of the main record of appeal). The first 15 reliefs sought by the Respondents against the Appellants were for declaration of their entitlement to refunds of penalties, interests and funds allegedly wrongly placed on their bank accounts by the Appellant. The remaining 12 reliefs are injunctive reliefs seeking the orders of Court commanding the Appellant to refund the said sums of money allegedly illegally imposed and deducted from their accounts by the Appellant. In his ruling the learned trial Judge found at page 63 of the main record of appeal that:
“… Thereon the Claimants claim essentially are that the 1st defendant has manipulated her corporate accounts by applying spurious and excessive charges and interests on her account and pursuant to this is seeking several reliefs.”
The above finding correctly represents the main claim of the Respondents against the Appellant before the trial Court. The facts in issue are the interest and other charges made on the accounts of the Respondents in the course of their banker/customer relationship. What the trial Court will

be required to determine at the trial is what were the terms of the agreements between them as stated in the pleaded letters of offer and acceptance of the loan facilities. Then the trial Court will determine whether or not there were illegal charges over and above what was agreed on by the parties or above the Central Bank guidelines for interest rates charges. It is the law that the relationship between a bank and its customers is contractual and in this case it is especially so because the dispute arose from the offer and acceptance of loan facilities over many years between the parties. Indeed, the Respondents pleaded these letters of offer of the various loan facilities, which no doubt contained the terms and conditions of the facilities agreed by the parties. See FCMB Plc V. Benbok Ltd (2014) LPELR-23505 (CA)and U. B. A. Plc V. Uzochukwu (2017) LPELR-42787 (CA).

Having found that the Respondents’ case against the Appellant is rooted on banker and its customer relationship, particularly as regard the agreement of the credit facilities granted to the Respondents/claimants by the Appellant, the next question to be determined is whether the trial

Court was right to hold that it has jurisdiction to determine the suit. The argument of the Appellant in this appeal as can be discerned from its brief of argument is that AMCON that was initially sued along with the Appellant as the 2nd Defendant is an agency of the Federal Government and by the combined provisions of Sections 251(1)(p), (q) and (r) of the Constitution of Nigeria 1999 as amended and the relevant provisions of the AMCON Act, only the Federal High Court has the jurisdiction to determine the Respondents’ suit and not the trial Court. In particular, the Appellant referred to the reliefs the Respondents sought in paragraphs 45v, 45w and 46 of their statement of claim, which were specifically against AMCON.
It is on record that the Respondents filed a notice of discontinuance of their suit against AMCON, which was then sued as the 2nd Defendant, and its name was subsequently struck out from the suit. The Appellant argued that this fact notwithstanding, the suit commenced against the AMCON ab initio robbed the trial Court of jurisdiction to determine it. The Respondents on the other hand argued that with the striking out of AMCON as a

party to the case, all the reliefs claimed against it are deemed abandoned. And that since it is no longer a party to the case, the provisions of Section 251(p), (q) and (r) of the Constitution or the AMCON Act are not applicable to this suit.
I note that both counsel relied on the case of NDIC V. Okem Enterprises Ltd& Anor. (2004) LPELR- 1999 (SC), in support of their respective argument regarding the issue of jurisdiction of the Federal High Court and the State High Court on disputes arising between a banker and its customer. In that case, the Supreme Court extensively examined the provisions of Section 251(1)(d) of the Constitution of Nigeria, 1999 (as amended) and concluded that it is only in respect of banking measures that the interest of the Federal Government will be affected, as such, the Federal High Court has exclusive jurisdiction on such matter. However, in other causes or matters relating to any dispute between an individual customer and his bank, the proviso in sub-section (1)(d) of Section 251 derogated the exclusivity of the Jurisdiction of the Federal High Court to the effect that it shares jurisdiction with the State High Courts.

Kutigi, JSC (as he then was) put the position of the Apex Court clearly at page 75 paragraphs C-D thus:
“For the avoidance of doubt, the conclusion is that under the proviso of Section 251(1)(d) of the 1999 Constitution, the Federal High Court has concurrent jurisdiction with States High Courts in the matter stated in the proviso…”
In the light of the above settled principle of law, the learned trial Judge in this case was on a strong legal ground and rightly held at page 64 of the main record of appeal that by the combined provisions of Sections 251(1)(d) and 272(1) of the Constitution of Nigeria 1999 as amended, the claims before the Court falls within its jurisdiction, and I totally agree with him.

Now with regards to the effect of discontinuing the suit against AMCON, I will start by stating that the presence of AMCON in the suit does not change the subject matter or the fact in issue in the suit. The dispute remains on the interest and other charges on the credit facilities or loans that the Appellant as a banker granted to the Respondents as its customers. Order 23 Rules 1 to 3 of the Lagos State High Court (Civil Procedure) Rules

provides that the claimant can withdraw his claim against the defendant or any of them either before or after defence to his claim has been filed. The only difference is that where a defence has been filed and served, the claimant needs to seek the leave of Court to discontinue the suit against defendants or any of them. In this case, AMCON as the 2nd Defendant filed a statement of defence to the Respondents’ suit before the trial Court as shown at pages 29 to 31 of the main record of appeal. The proceedings of the trial Court of 19th December, 2016 contained at pages 33 to 34 showed that the trial Court’s attention was drawn to the notice of discontinuance of the suit filed by the Respondents, withdrawing its suit against AMCON as the 2nd Defendant. The trial Court ruled as follows:
“Pursuant to Claimant’s Notice of Discontinuance dated 18th December, 2016, wholly discontinuance (sic) this suit against the 2nd Defendant, the 2nd Defendant Amcon is hereby struck out as a party to this suit.”
Now in law, a notice of discontinuance is a voluntary termination of a suit by the Plaintiff or complainant. See

Mabamije V. Otto (2016) LPELR-26058 (SC) and Benaplastic Ind. Ltd V. M. V. (1999) LPELR-6552 (SC). By the filing of the notice of discontinuance and the ruling of the trial Court aforementioned, the suit against AMCON has been voluntarily terminated by the Respondents and the trial Court ruled striking out its name as a party to the suit. As such the argument of the Appellant to the effect that regardless of the striking out of AMCON as a party to the suit, the trial Court has no jurisdiction to determine the suit ab initio is baseless and clearly misconceived. I agree with the Respondents’ argument that all the claims against the AMCON in the statement of claim are abandoned and will not be considered in the final determination of the suit by the trial Court. In the circumstance, issue one is resolved against the Appellant.

ISSUE TWO
This issue is distilled from ground four of appeal, and in arguing it, the Appellant’s learned counsel relied on Section 6 of the Constitution of Nigeria, 1999 as amended that confer judicial powers on the Courts created by it. He also placed reliance on Sections 67 to 69 of the Evidence Act on the admissibility of

opinion evidence. Upon these provisions, he argued that the order of the trial Court appointing the President of the Institute of Chartered Accountants of Nigeria or his nominee to reconcile the accounts of the Respondents with the Appellant and submit a report to it was wrong because there was no arbitration agreement between the parties. As such, the trial Court’s order to the parties to file an undertaking to be bound by the findings to be made by the independent reviewer of the accounts will deprive the parties of their right to cross-examine the independent reviewer on his report, which will contravene Section 36 of the Constitution of Nigeria 1999 as amended. That the right to fair hearing cannot be waived by any party, and where a party is deprived of his right to fair hearing, the effect is to render the entire proceedings as nullity.

He also submitted that the independent reviewer is appointed as an expert to give opinion evidence before the Court. As such, he must not only explain to the Court how he arrived at his opinion but must also give reasons for his opinion. It is left to the Court to accept or reject the opinion evidence, but in

any case, the parties have the right to cross-examine the expert, which means that he must give evidence in the witness box. It was argued that the trial Court order to the effect that the parties undertake to be bound by report of the independent reviewer is in conflict with the provisions of Sections 67 to 69 of the Evidence Act, 2011. That the claims of the Respondents in their pleadings against the Appellant which it denied by its statement of defence ranges from excess and illegal charges on its accounts, upon which no findings of Court was made. It was his argument that it will amount to the usurpation of the functions of the Court for the independent reviewer to make findings on the dispute between the parties before the Court. In conclusion, the Appellants submitted that it is a breach to the parties’ right to fair hearing for the trial Court to appoint an independent reviewer to reconcile the accounts of the parties in the case and at the same time order the parties to file an affidavit to be bound by his report.

The Respondents argued issue two in pages 14 to 15 of their brief of argument in the main that by the provisions of

Order 12 Rule 3 and Order 27 Rules 1-13 of the High Court of Lagos State Civil Procedure Rules 2012, the trial Court has the power to appoint a referee to review any bank account in dispute. However it also has the discretion to adopt the report of the appointed reviewer wholly or in part, vary the report or require an explanation from him. It was also posited that it was within the power of the trial Court to order parties to file an undertaking to be bound by the outcome of the review, but this does not prevent the Appellant from cross-examining the reviewer upon its (Appellant’s) application to the Court to do so. He relied on the cases of Sowemimo V. State (2004) 11 NWLR (pt. 885) 515 and Waziri V. State (1997) 2 NWLR (pt. 496) 689 in urging the Court to dismiss the appeal.

RESOLUTION OF ISSUE TWO
This issue distilled from ground four of appeal relates to the enrolled order of the trial Court made on the 21st September, 2018, contained at pages 38 to 39 of the main record of appeal. In that enrolled order, the trial Court ordered as follows:
“UPON THIS CAUSE coming up before this Honourable Court on the 21st day of September, 20018 for

hearing.
Pursuant to the agreement and consensus of both counsel and parties at the Trial Directions held on the 21st September.
IT IS HEREBY ORDERED AS FOLLOWS:
1. THAT the current accounts of the 1st and 2nd Claimants as in ACCOUNT NOs: 1005-1220-56 and 1011-1056-09 domiciled with the Defendant bank for the period 10/11/07 to 30/11/2012 be submitted for reconciliation by the President of the Institute of Chartered Accountants of Nigeria (ICAN) or his nominee.
2. IT IS FURTHER ORDERED that both parties are at liberty to make submitted written representations or additional documentation as may be required to the President of ICAN or his nominee.
3. IT IS HEREBY ORDERED that both parties shall pay for the reconciliation exercise in equal proportion and the exercise shall be in charged in accordance with the Scale of Fees of the Institute (ICAN).
4. IT IS HEREBY ORDERED that the Final Report of the independent review shall be submitted to the this Honorable Court in triplicate not later than four (4) weeks after the date of receipt of the Enrolled Order of this Honorable Court.
5. FINALLY, IT IS HEREBY ORDERED that both parties

shall file not later than seven (7) days from today an undertaking to be bound by the findings made on the Report by the Independent Reviewer.
6. This Suit shall stand adjourned to he 5th November, 2018 for a status Report on the Reconciliation exercise…”

The complaint of the Appellant is against order number 5 directing the parties to file an “undertaking to be bound by the findings to be made on the report of the Independent Reviewer” of the Respondents’ account with the Appellant. An independent reviewer’s report such as the one requested by the trial Court from ICAN is an expert opinion, which will be submitted to the Court. The main function of an expert is to assist the Court to find the truth in the judicial process. The expert’s opinion on any fact in issue is simply evidence, which must be considered and evaluated along with the other pieces of evidence before the trial Court, and the trial Court must fully be in control of all the evidence adduced before it, and it must perform its primary duty of assessing all the evidence including expert evidence and forming its own opinion thereto. The trial

Court is not bound to accept and act on expert evidence without proper evaluation, and neither should the parties be made to accept such evidence. See Ayadi & Ors. V. Mobil Producing (Nig.) Unltd (2016) LPELR-41599 (CA), Bille V. State (2016) LPELR-40832 (SC), Oyem V. FRN (2013) LPELR- 20836 (CA) and Matraco Inv. Nig. Ltd & Anor. V. Sterling Bank (2013 LPELR-21865 (CA) where this Court, Per Mbaba, JCA succinctly put the position of the law on expert evidence as follows:
“It must also be stated that, even where a witness is recognized and regarded as an expert for the purpose of the Section 68 of the Evidence Act, the opinion proffered by him remains an opinion and is never binding on the Court! It is only of persuading effect. See the case of UWA PRINTERS NIG. LTD VS. INV. TRUST COY (1988) NWLR (PT. 92) 110; OR 1988 LPELR – SC.217/1986 held 3: “An expert may give his opinion upon facts which are either admitted or proved by himself, or other witness in his hearing at the trial or are matters of common knowledge, but where the opinion is based on report of facts, these facts, unless they are within his personal knowledge must be proved

independently, that is, by calling witnesses who are personally concerned in the transaction.” Per Wali JSC.”
In the light of the position of the law on expert evidence, the order number 5 of the trial Court made in its pre-trial Conference is ultra vires and has the effect of conferring powers on ICAN that it does not and cannot possess. As stated earlier, it is re-iterated that in as much as it is within the trial Court’s power as provided by its Rules of Civil Procedure to invite the evidence of an expert, such evidence is neither binding on the Court nor on the parties. It must be treated like any other evidence placed before the Court, with the parties’ right to cross-examine the expert and even the right to object to his opinion on the facts in controversy. The trial Court alone has the primary duty to evaluate all evidence placed before it and reach a decision and it cannot assign that duty to any one else. It will be illegal and an abdication of its primary duty to do so. Consequently, I resolve issue two in favour of the Appellant.

Having resolved issue one against the Appellant but issue two in its favour, it means that the

appeal succeeds in part, only with regards to the order number 5 made by the trial Court on the 21st September, 2018. That order is hereby set aside. However, the appeal against the trial Court’s assumption of jurisdiction on the Respondents’ claims is dismissed. Parties shall bear their respective costs.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to peruse in advance, the well-articulated judgment delivered by my learned brother BALKISU BELLO ALIYU, JCA. I endorse, in toto, the reasoning and conclusion in it.
I, too, allow the appeal in part in the manner decreed in the leading judgment.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read in draft, the leading judgment just delivered by my learned brother, Balkisu Bello Aliyu, JCA, wherein the appeal only succeeds in part in respect of the order made by the lower Court that the parties shall be bound by the Report of an Expert to which certain aspects of the issues in dispute were referred to for investigation and resolution which was set aside, and he affirms the Ruling on the issue that the lower Court had jurisdiction.

I agree with the analysis of the

issue that were considered for determination and the decisions reached therein which resulted in the decision to affirm the Ruling of the lower Court on the issue of its jurisdiction to entertain the suit, AMCON having been struck out as party sued by the Respondents.
I really have nothing useful to add. I abide with the consequential orders made as to costs.

The case before the lower Court being a matter involving a bank and its customers, should be accorded a measure of accelerated hearing so that it can be disposed of in good time.

Appearances:

C. IFEDIORA ESQ. For Appellant(s)

MRS. J. T. OYETAN ESQ. For Respondent(s)