STANDARD TRUST BANK PLC v. CHIEF EMMANUEL OLUSOLA (2007)

STANDARD TRUST BANK PLC v. CHIEF EMMANUEL OLUSOLA

(2007)LCN/2412(CA)

In The Court of Appeal of Nigeria

On Thursday, the 7th day of June, 2007

CA/IL/M.56/2006

RATIO

WHETHER A NEW ISSUE CAN BE RAISED IN THE COURT OF APPEAL WITHOUT LEAVE OF THE COURT

This court, in the case of Berende v. Usman (supra) per Onnoghen JCA (as he then was) held that: “No new issue can be raised in the Court of Appeal without the leave of that court being first sought and obtained. This is because, a Court of Appeal only has jurisdiction primarily to review, by way of rehearing, the decision or decisions of the lower court. PER TIJJANI ABDULLAHI, J.C.A.

COMPETENCE OF COURT: CONDITIONS UNDER WHICH A COURT WILL HAVE THE COMPETENCE TO ADJUDICATE OVER A MATTER

Now, it has been settled beyond peradventure that the competence of a court to adjudicate over a matter depends on the following: (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. See the cases of: Shell Pet Dev. v. Isaiah (1997) 6 NWLR (Pt. 508) 236 at P. 246 per Katsina Alu, JCA (as he then was); P. D. P. v. INEC (1999) 11 NWLR (Pt. 626) 2000 at P. 241 and Madukolu and Ors v. Nkemdilim (1962) ALL NLR (Reprint) 581 at Pp. 589 0 590. PER TIJJANI ABDULLAHI, J.C.A.

RULES OF INTERPRETATION: HOW TO INTERPRET THE PROVISIONS OF THE CONSTITUTION OR ANY ACT

In the interpretation of the provisions of the Constitution or any Act, the duty of the court is to adopt a literal interpretation which means that, where the provision of a statute are clear and unambiguous, they require no resort to any cannon of construction, but they must be read in their plain and ordinary words which best give their meaning.
However, where a literal interpretation of the provisions of a statute will result in absurdity or injustice, the court may seek internal aid within the body of the statute itself or external aid from statutes that are in pari materia with the statute being construed in order to avoid absurdity or injustice. The court shall discountenance frivolity, but should adopt a liberal approach and avoid construing it in a manner that one section would defeat the intent or purpose of another. See Abubakar v. A. G. Federation (2007) 3 NWLR (Pt. 1022) P. 601; Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) P. 241; Awuse v. Odali (2003) 14 NWLR (Pt. 851) Page 116. PER TIJJANI ABDULLAHI, J.C.A.

JURISDICTION: CONSEQUENCE OF ANY FINAL PRONOUNCEMENT BY A COURT OR TRIBUNAL WITHOUT JURISDICTION

Any final pronouncement by a Court or Tribunal without jurisdiction is an exercise in futility. Such would amount to putting something on nothing. Surely it will not stand, but is liable to collapse like a prototype house made from matchsticks. Therefore, the issue of jurisdiction must, necessarily and preferably, be determined in limine. Madukolu v. Nkemdilim (1962) 2 S.C.N.L.R.341; Mcfoy v. V.A.C. LTD (1962)A,C.152;Oloba v. Akereja (1998)3 NWLR (Pt. 84) 508; Orhiommwon Local Govt V Ogieva (1993) 4 NWLR (Pt. 288) 472; Onyenuchea V Milad., Imo State (1997) 1 NWLR(Pt. 482) 429; Barsoom V Clemessy International (1999) 12 NWLR (Pt. 632) 516; Inajoku V Adeleke (2007)4 NWLR(Pt.1625)423. PER JUMMAI HANNATU SANKEY, J.C.A.

JUSTICES

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

Between

STANDARD TRUST BANK PLC Appellant(s)

AND

CHIEF EMMANUEL OLUSOLA Respondent(s)

TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment) This is an appeal against the Ruling of the High Court of Justice, Ekiti State holding at Ado-Ekiti, Coram C. I. Akintayo J, delivered on the 7th June, 2006. The Appellant herein was the Defendant in the lower court whilst the Respondent was the Plaintiff who filed an action claiming as per the Writ of summons the following reliefs:
“(a) a declaration that the sum of two hundred and fifty thousand naira (N250,000.00) paid over to defendant on 16th December, 2003 was for purposes of buying shares in defendant.
(b) a mandatory order on defendant to issue to plaintiff the necessary shares certificates in respect of the said sum of money.
(c) two million naira (N2,000.000.00) general damages for defendant’s breach in giving plaintiff his share certificate and the consequent loss of dividends from 2004.”
The case as can be gleaned from the processes filed by the parties is that: The Plaintiff was and is still a Customer of the Defendant at its Ado-Ekiti branch. The Plaintiff, on the 16th December, 2003, paid to the defendant the sum of N250, 000.00 through a cheque No. 03349815 drawn on plaintiffs account with the defendant number NGN 0562526001 at the Ado- Ekiti branch to buy in Appellant shares which Appellant invited the public to buy.
The Respondent, on 28th December, 2004, when he heard nothing from the Appellant either rejecting his application or returning his money or sending share certificate to him, wrote to find out what was amiss. The Appellant did not reply to the said letter. On the 11th February, 2005, Respondent caused his solicitor to write to the Appellant and the Appellant again refused to give a reply.
As a result of pressures put on the Appellant by the Respondent, the former advised the latter to contact the Appellant’s Registrar which the Respondent did. In his reply of the 18th July, 2005, the Registrar requested the Respondent to liaise with the Appellant’s Ado-Ekiti Branch, which the Respondent did. The branch confirmed that it had record of the Respondent’s payment of N250, 000.00 for buying shares and promised to get in touch with the Appellant’s Registrar, but nothing positive followed. When recapitalization and the merger of banks were imminent, the Respondent
took the matter to the Ekiti State High Court, Ado-Ekiti for adjudication.
In a motion on notice dated 8th of February, 2006 and filed on 9/2/2006, the Defendant/Applicant sought for an order striking out the suit for want of jurisdiction to hear and determine same contending that only the Federal High Court had jurisdiction to handle the matter. The Respondent opposed the application and filed a counter-affidavit. After the addresses of both counsel in the case, the learned trial judge, on the 7th June, 2006 held thus:
“I here (sic) considered the claim of the Plaintiff before this court and came to the conclusion that what is before me has to do with a transaction between the individual customer and the Bank and to this end it is my considered and humble view that this court has jurisdiction to entertain this case.”
Dissatisfied with the ruling, the Defendant filed a notice of appeal which carries one ground of appeal. (See page 42 of the record).
In accordance with the Rules of this court, Order 6 RR 2 and 4 of the Court of Appeal Rules, parties filed and exchanged their respective briefs.
The Appellant in his brief of argument undated but filed on 7th February, 2007 formulated a sole issue for determination of the appeal as follows:
“Whether the plaintiff/Respondent’s claims postulated in paragraphs (a), (b) and (c) of the Writ of Summon and paragraph 17 (a) (b) and (c) of the Statement of Claim are not matters regulating the operation of the Appellant as a Company and if yes whether the Federal and not the State High Court has jurisdiction to hear and determine same.”
The Respondent’s counsel agrees that the only issue in the appeal is one of jurisdiction. On the 22nd March, 2007, when the appeal came before us for hearing, Learned Counsel for both parties adopted their written arguments and proffered oral arguments in amplification of the said written briefs.
Learned Counsel for the Appellant, Femi Sarumi, in addition to his written brief, argued that the Respondent’s claim before the lower court borders on the sale and purchase of shares in the Appellant’s company which, by virtue of incorporation, is a public limited liability company. The legal effect of such a purchase, Learned Counsel further argued, makes the Respondent a co-owner in the Appellant’s company.
Learned Counsel submitted that the co-ownership of the Appellant’s company is not a matter between a Banker and its Customer and therefore beyond the jurisdiction of the lower court. The jurisdiction, he further argued, is vested in the Federal High Court. Learned Counsel referred us to section 251 of the Constitution of the Federal Republic of Nigeria, particularly the proviso to section 251 (1) (D). Learned Counsel urged us to allow the appeal and strike out the suit before the lower court for lack of jurisdiction.
For his part, Learned Counsel for the Respondent, A. Adeyemi, submitted that the issue of joint-ownership is not covered by the ground of appeal filed in this appeal. Learned Counsel for the Appellant admitted raising it as a new issue without seeking leave of the court to raise it as a new issue. Learned Counsel urged the court to discountenance the submission of the Appellant’s counsel. He referred us to the case of Berende v. Usman (2005) 14 NWLR (Part 944) P. 1 at Pp, 17 – 18. Learned Counsel contended that, assuming without conceding, that the issue can be validly raised in this court, he submitted that the said issue of (Joint ownership) has not arisen in this case. This is because the Respondent, who is the Customer of the Appellant, applied for shares in the Appellant’s company in respect of which he deposited some money with the Appellant. The grouse of the Respondent at the lower court was the refusal of the Appellant to give the necessary share certificate to the Respondent. It is exactly the point that, the respondent’s offer to buy the shares has not been accepted. Learned Counsel further contended that the Respondent cannot therefore be a co-owner with the Appellant. He urged us to uphold their submission and dismiss the appeal.
Let me begin with the oral submission of the Learned Counsel for the Respondent as it relates to whether the issue of a joint ownership is a new issue in this appeal. To answer this question, recourse had to be made to the Notice of Appeal which embodied the grounds of appeal. Needless to say, the Appellant filed only a sole ground of appeal which read thus:
“The learned trial judge erred in law in assuming jurisdiction to hear and determine this matter when he held that the plaintiff’s claim before the lower court is a matter that bothers (sic) on Banker/Customer relationship and thereby came to a wrong conclusion.”
It is apparent from the sole ground stated (supra) that the issue of joint ownership has been raised for the first time when counsel was adopting his written brief. At any rate, the fact that the issue of joint-ownership was being raised for the first time during the adoption of respondent’s brief is not even in dispute, since the Learned Counsel himself admitted that he was raising same for the first time.
The question that should be asked and answered is: whether the Appellant can raise the issue for the first time without the leave of the court. This court, in the case of Berende v. Usman (supra) per Onnoghen JCA (as he then was) held that:
“No new issue can be raised in the Court of Appeal without the leave of that court being first sought and obtained. This is because, a Court of Appeal only has jurisdiction primarily to review, by way of rehearing, the decision or decisions of the lower court. In the instant case, since the issue as to whether paragraphs 4 and 5 of the affidavit of the Appellant offend sections 86 and 87 of the Evidence Act was never raised in the trial court and having been raised in the Court of Appeal without leave, it is incompetent.”
Again, in the case of Gabriel v. The State (1989) 5 NWLR (Pt. 122) P. 457 at P. 462, it was held as follows:
“The Appeal Court will not entertain a new issue not raised in the trial court except question of law or the constitution and then only with the leave of court “(Underlining mine for emphasis).
In the light of the foregoing, I am of the considered opinion that the issue of joint-ownership raised for the first time by the Appellant’s counsel whilst adopting his address without the leave of court is grossly incompetent and consideration will not be given to it in this appeal.
On the sole issue for determination, Learned Counsel for the Appellant submitted that, in determining whether the lower court has jurisdiction or not to try the matter, it is the claim of the Respondent that must be scrutinized as the jurisdiction of the court is determined by the claim before it. He relied on the cases of Ethiopian Airlines v. Justice Sylvester Umaru Onu (2005) ALL FWLR (pt. 276) P. 632 at 637 and Kisiri Investment Ltd v. La-Terminal Company Ltd (2001) FWLR (pt. 66) 766 at 770/771.
Learned Counsel further submitted that the claims of the Respondent which borders on the purchase of shares in a Public Limited Liability Company and the subsequent failure of the said Appellant to issue the appropriate share certificate is not just a mere matter that touches on the operation of the appellant as a company.
The very fact of incorporation, he humbly submitted, makes the Appellant a Public Limited Liability Company whose activities are governed by the Companies and Allied Matters Act and banking nature of its business in governed by the Banking Act. Learned Counsel submitted that the Appellant is primarily a Company having been duly incorporated pursuant to Section 37 of the Companies and Allied Matters Act, Laws of the Federation of Nigeria 2004 before being a Banker by the nature of its business.
Learned Counsel submitted that all matters bordering on the shares of a company a re regulated by part 6 (iv) of companies and Allied Matters Act, Laws of the Federation of Nigeria 2004 and Section 146 (1) and (2) relate to issuance of share certificates. While section 146 (1) of the Act enjoins every company to be ready for delivery within two months after allotment or within three months after a transfer has been lodged with its certificates of all shares allotted or transferred by it, while section 146 (2) of the Act enjoins every member of the company whose names are entered in the register of the company as a member to receive a share certificate three months after allotment or lodgment of transfer.
Learned Counsel further submitted that where there is default in the issuance of a share certificate, as in leg (b) of the Respondent’s claim, the remedy is not in a civil action but in a quasi criminal action as contained in section 146 (5) of the Act. He urged us to hold that the claims before the lower court are matters bordering on the operation or regulation of the Appellant as a public Limited Liability Company and not a matter between a Banker and its Customer.
If the first leg of this issue is resolved in favour of the Appellant. He further submits that by the provisions of section 251 (e) of the Constitution of the Federal Republic of Nigeria 1999, the Federal High Court has exclusive jurisdiction on any matter arising from the Companies and Allied matters Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act.
Learned Counsel opined that the above Constitutional provision has been given judicial interpretation in: Trade Bank Plc. v. Benilux Nigeria Limited (2003) FWLR Pt. 162 1871; Karimu Adisa v. Emmanuel Oyinwola (2000) FWLR Pt. 8 1349 and Nigeria Tobacco Co. Plc. v. Mr. F. O. Osifeso (2000) 14 WRN 37 at 41.
Learned Counsel submitted that, in view of the arguments canvassed above, the Federal High Court, and not the State High Court, has jurisdiction to hear and determine the Respondent’s claims contained in the Writ and Statement of Claim. Learned Counsel further submitted that they are more fortified in this submission by item 180 of section 650 of the Act which prescribes the Federal High Court as the appropriate court.
On the other hand, Learned Senior Counsel for the Respondent submitted that the respondent’s claim is for specific performance of issuing a share certificate in respect of the amount he paid for shares and damages for breach of contract. The question of jurisdiction in the matter largely depends on the 1999 Constitution, especially its section 251 and the case law.
The Learned Senior Counsel argued that the relevant portions of the Constitution are Section 251, paragraphs (p) (q) (r) (s) and the proviso to the Paragraphs. Learned Senior Counsel further argued that, of all the paragraphs of the Constitution mentioned above, only the proviso to paragraph (p) (g) and (r ) is applicable to this matter as the Respondent’s claim is for specific performance and damages for breach of contract. It is the contention of the Learned Senior Counsel that the claim of the Respondent is by a customer against his bank in respect of a contract between them for a sale of shares.
On case law, Learned Senior Counsel referred us to a number of cases and submitted as follows:
“Provided that this paragraph shall not apply to any dispute between an individual and his bank. He relied on the case of Co-operative Development Bank v. Golday (2002) 14 NWLR (Part 688) P. 506 at Page 548 Para D”; “The State High Courts have jurisdiction in the circumstances indicated in the proviso”; “The Federal High Court shall not have exclusive jurisdiction in the circumstances indicated on the provisor (sic)” Okafor v. Hastuim, (2001) 1 NWLR (Part 693) 183 at 192, para B;
“The powers of the State High Court under Section 236 (1) of (Decree NO.107 1993 is now section 272 (1) of the Constitution of the Federal Republic 1999. This confers all power to the State High Court of matters not covered by Section 251 (1) of the 1999 Constitution.
“If the legislature had intended such a matter of contractual relationship as arising in the claim before the State High Court to be exclusive determination of the Federal High Court, they would have provided for it in such terms” Shippers Council v. United World Ltd, (2001) 7 NWLR (Part 713) 576 at 586, Paras C – D;
“It is my view based on the PROVISO, that Section 230 (1) (s) of Constitution and (Suspension and Modification) Decree 107 of 1993 cannot on its own oust the jurisdiction of the Lagos High Court.” Usman Danfodio v. University, (2001) 15 NWLR (Part 736) 305 at 323, paras D – F;
“The State High Courts have jurisdiction in the circumstances indicated in the proviso.” P. T. F. v. I. F. M. S. (2002) 16 NWLR (Part 794) 586 at 600, Para H;
“It is not in every case a company or body formed under Companies Act, 1968 that Federal High Court must exercise jurisdiction and the State High Court’s jurisdiction of the State High Court is ousted and that of the Federal High Court vests the matters must pertain to operation of Companies Act”.
Continental Industrial Gas Ltd v. Onafelio (2003) 7 NWLR (Part 820) 474, Para G;
“I have no doubt that the respondent, in the case in hand, can sue the appellant in conversion for the proceeds of the cheques which the Appellant paid to a stranger who is not the payee of the cheque. The plaintiff/respondent’s case is simply in tort of conversion and the action filed by the Plaintiff/Respondent against the appellant can be entertained by any State High Court.” Trade Bank Plc v. Benilux (2003) 9 NWLR (Part 825) 416 at 431 to 432, Paras H – A.
Learned Senior Counsel urged us to resolve the issue of jurisdiction in favour of the respondent.
Now, it has been settled beyond peradventure that the competence of a court to adjudicate over a matter depends on the following:
(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. See the cases of: Shell Pet Dev. v. Isaiah (1997) 6 NWLR (Pt. 508) 236 at P. 246 per Katsina Alu, JCA (as he then was); P. D. P. v. INEC (1999) 11 NWLR (Pt. 626) 2000 at P. 241 and Madukolu and Ors v. Nkemdilim (1962) ALL NLR (Reprint) 581 at Pp. 589 0 590.
Now, it is in this con that the claim of the plaintiff is hereby reproduced infra with a view to finding out whether or not it is within the jurisdiction of the lower court. Plaintiff claims against the defendant as follows:
“(a) A declaration that the sum of Two Hundred and Fifty Thousand Naira (N250,000.00) paid over to defendant on 16th December, 2003 through plaintiff’s cheque number 03349815 drawn on
plaintiff’s account number NGN 0562526001 with defendant at Ado-Ekiti was for purposes of buying shares in defendant.
(b) a mandatory order on defendant to issue to plaintiff the necessary share certificates in respect of the said sum of money.
(d) two million naira (N2,000.000.00) general damages for defendant’s breach in giving plaintiff his share certificate and the consequent loss of dividends from 2004.”
A declaration
The Federal High Court, like any other Court in the Federation, is a creature of a statute, in this case, the Constitution of the Federal Republic of Nigeria, 1999. It goes without saying therefore that its jurisdiction is contained in the statute creating it, the 1999 Constitution of the Federal Republic of Nigeria; Section 251 (1) a – s and subsections (2) and (3) of the same. The relevant provisions, for the purpose of the appeal is, section 251 (1) (a) to (d) which provides thus:
“251 (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be coffered upon it by an Act of the National Assembly, the Federal High Court shall have exercise jurisdiction to the exclusion of any other court in civil causes and matters:-
(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government; is a party;
(b) connected with or pertaining to the taxation of companies and other bodies established or carrying on business in Nigeria and other persons subject to Federal taxation.
(c) connected with or pertaining to customs and excise duties and export duties, including any claim by or against the Nigeria Customs service or any member or officer thereof; arising from the performance of any duty imposed under any regulation relating to customs and excise duties and export duties;
(d) connected with or pertaining, banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures:
Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank.
In the interpretation of the provisions of the Constitution or any Act, the duty of the court is to adopt a literal interpretation which means that, where the provision of a statute are clear and unambiguous, they require no resort to any cannon of construction, but they must be read in their plain and ordinary words which best give their meaning.
However, where a literal interpretation of the provisions of a statute will result in absurdity or injustice, the court may seek internal aid within the body of the statute itself or external aid from statutes that are in pari materia with the statute being construed in order to avoid absurdity or injustice. The court shall discountenance frivolity, but should adopt a liberal approach and avoid construing it in a manner that one section would defeat the intent or purpose of another. See Abubakar v. A. G. Federation (2007) 3 NWLR (Pt. 1022) P. 601; Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) P. 241; Awuse v. Odali (2003) 14 NWLR (Pt. 851) Page 116.
Luckily the provisions of sections 251 (1) (a – d) are very clear and unambiguous and do not need any aid whether internal or external to interpret them.
The Federal High Court has jurisdiction, notwithstanding anything to the contrary contained in this Constitution, and in addition to such other jurisdiction as may be conferred upon it by an Act of National Assembly, to hear and determine cases to the exclusion of any other in civil causes and matters stated inter-alia in paragraphs (a – d).
Paragraph D is very germane to the matter at hand and it provides thus:
” connected with or pertaining, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures:”
However, that is not the end of the matter. The power conferred on the Federal High Court vide paragraph D is only exercisable subject to the proviso of the said paragraph. The proviso reads thus:
“Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank.” (Underling supplied for emphasis).
The question to be asked is whether the dispute between the Appellant and the Respondent is a dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank. To answer this question, recourse had to be made to the claim of the plaintiff filed at the lower court. The relevant paragraphs are hereunder reproduced as follows:
“(1) Plaintiff is a Petrol dealer of Okesa Street, Ado Ekiti (2) Defendant is a body corporate engaged in banking operations all over Nigeria with its headquarters at Flat 1662, Oyin Jolayemi Street, Victoria Island, PMB 12859, Lagos State with a branch in Ado-Ekiti.
(3) Plaintiff is a customer of defendant in its Ado-Ekiti Branch
(4) Sometimes in 2003 defendant invited people to by shares in it.
(5) On 16th December, 2003 plaintiff paid to defendant two hundred and fifty thousand naira (N250.000.00) through a cheque number 03349815 drawn on plaintiff’s account with defendant number NGN 0562526001 at the Ado-Ekiti Branch. Defendant’s letter of 28th December, 2004 will be relied upon at the trial.
(6) Till today defendant has failed, neglected and refused to issue plaintiff necessary shares certificate in return for the said sum of money.”
It is apparent from the above paragraphs of the Statement of claim of the plaintiff that the dispute between the parties is a dispute between an individual, (in this case the Plaintiff/Respondent), and his bank (the Defendant/ Appellant). That being the case, the question posed a while ago must be answered in the affirmative. For the avoidance of any doubt, the dispute is between an individual and his bank, and the Federal High court has no jurisdiction to hear and determine the matter under consideration. In the final analysis, in the light of all that I said, this appeal is completely devoid of any merit. Same must be and it is hereby dismissed accordingly. I remit the case back to the learned trial Judge for continuation of hearing. I award N10, 000.00 costs against the Appellant in favour of the Respondent.

JUMMAI HANNATU SANKEY, J.C.A. I have read, in advance and in draft, the lead judgment of my learned lord, Abdullahi, J.C.A. I am in entire agreement with him that the Appeal is devoid of merit. While he has dealt comprehensively with the issues at stake in the Appeal, I will here add a few words in agreement ..
The facts and circumstances of this Appeal, having been well summarised in the lead judgment, will not be re-stated here. I will go on to merely comment on the two main issues arising in the Appeal, namely:
(i) Raising of fresh issues on appeal, and
(ii) jurisdiction .
It admits of no argument that the issue of joint ownership of the Bank raised by the Appellant in his arguments before this Court is a fresh issue which was neither raised at the Court below nor is it covered by his lone ground of appeal. This is well within the knowledge of learned Counsel for the Appellant who has readily admitted this. The law is since settled that a party is not entitled to raise a fresh issue on appeal without the leave of Court. This is because the jurisdiction of the Court of Appeal is primarily to review, by way of re-hearing, the decision or decisions of a lower court. The rationale behind this is that the Court below must have been given the opportunity to pronounce on the issue to avail the Appeal Court of its decision on the, matter and to enable this Court review the lower Court’s pronouncement on same judiciously. Where the issue was never presented to or raised at the Court below and, at the same time, leave of the Appeal Court was not sought to raise such a fresh (new) issue; an Appellant will not be heard thereon. Where, however, a party wishes to raise a fresh issue on appeal, leave of Court must be had and obtained otherwise such an issue is incompetent. Having therefore failed to seek and obtain the leave of Court, the Appellant is not entitled to be heard on the new point as such an issue is incompetent. Afribank V Osisanya (2000) 1 NWLR (Pt. 642) 598; Lebile V Registered Trustees C & S (2003) NWLR(Pt. 804) . 399; Hyppolite V Egharevba (1998) 11 NWLR (Pt. 575) 598; Godwin V CA.C (1998) 14 NWLR (Pt. 584) 162; Kwajjafa V Bank of the North (2004) SCNJ12; Alamieyeiseigha v. F.R.N. (2006) 16 NWLR (Pt.1004) 1. . I do so hold.
The real issue for determination in this Appeal is whether the Federal High Court, Ilorin had jurisdiction to adjudicate on the Federal Respondent’s claim. Jurisdiction is the power of a Court to   adjudicate over a matter brought before it. It is trite law that, to determine the issue of jurisdiction, recourse must necessarily be had to the Plaintiff’s claim in his Writ of Summons Statement of Claim at the lower court. Same is also often circumscribed by Statute. It must be said with vigour that jurisdiction is absolutely vital in the administration of justice. It is the bedrock of all trials. A. trial without jurisdiction, however well conducted and brilliantly decided, is a nullity. Any final pronouncement by a Court or Tribunal without jurisdiction is an exercise in futility. Such would amount to putting something on nothing. Surely it will not stand, but is liable to collapse like a prototype house made from matchsticks. Therefore, the issue of jurisdiction must, necessarily and preferably, be determined in limine. Madukolu v. Nkemdilim (1962) 2 S.C.N.L.R.341; Mcfoy v. V.A.C. LTD (1962)A,C.152;Oloba v. Akereja (1998)3 NWLR (Pt. 84) 508; Orhiommwon Local Govt V Ogieva (1993) 4 NWLR (Pt. 288) 472; Onyenuchea V Milad., Imo State (1997) 1 NWLR(Pt. 482) 429; Barsoom V Clemessy International (1999) 12 NWLR (Pt. 632) 516; Inajoku V Adeleke (2007)4 NWLR(Pt.1625)423.
Now the claim of the Plaintiff at the lower Court is as follows:
“(a) A declaration that the sum of Two Hundred and Fifty Thousand Naira (N250, 000.00) paid over to the defendant on 16th December, 2003 through the plaintiff’s cheque number 03349815 drawn on plaintiff’s account number NGN 0562526001 with defendant at Ado-Ekiti Was for purposes of buying shares in the defendant.
(b) A mandatory order on defendant to issue to Plaintiff the necessary share certificates in respect of the said sum of money.
(c) Two Million Naira (N2,000, 000.00) general damages for defendant’s breach in giving Plaintiff his share certificate and the consequent loss of dividends from 2004.”
The jurisdiction of the Federal High Court has been circumscribed and delineated by Section 251 of the Constitution of the Federal Republic of Nigeria, 1999. The provision relevant to the issue at hand is paragraph (d) of subsection (l) of Section 251, and it provides:
“251(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have jurisdiction to the exclusion of any other court in civil causes or matters:-
(d) connected or pertaining banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign   exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures:
Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank. ”
(Underlining supplied for emphasis).
From the Plaintiff’s claim, it is clear that this dispute arose from the purported payment by the Plaintiff of the sum of N250, 000.00 to his bankers, the Defendant, for the purchase of shares in the Defendant Bank. The complaint of Plaintiff is that the Defendant Bank has since failed/refused/neglected to issue him with the share
certificates covering the shares. To my mind, this is a dispute between an individual customer and his bank in a transaction  in respect of the purchase Of shares simpliciter. It therefore clearly comes under the umbrella of the proviso to Section 251 (1) (d) of the Constitution. That being the case, the High Court of Justice, Ilorin is well within the law when it held that it was vested with jurisdiction to entertain the suit. It is not a matter within the exclusive preserve of the Federal High Court as anticipated by the clear provision of Section 251 (1) of the 1999 Constitution.
It is for these reasons and for the fuller reasons set out in the lead Judgment that I too dismiss the Appeal. I endorse the  orders made therein, including the order as to costs.

IGNATIUS IGWE AGUBE J.C.A (DISSENTING JUDGMENT): I have had a preview of the judgment just delivered by my learned brother T. Abdulahi J.C.A and his consideration of the only live issue that calls for determination.
I am afraid that I must differ from the conclusions arrived at by my brother Justices that this is a case of simple contract between an individual customer and his hank so as to oust the exclusive jurisdiction of the Federal High Court as enshrined in sections 251 (1) (d) and (e) of the 1999 Constitution.
A cursory, look at the claim of the plaintiff in both his writ of Summons and Statement of claim would reveal the subtlety of the matter such that if care is not taken a hasty conclusion could be drawn that the claim of the plaintiff is within the purview of the proviso to Section 251 (1) (d) of the 1999 Constitution which is to the effect that:
“This paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank.”
There is no doubt as was decided in a long line of cases including ETHIOPIAN AIRLINES v. JUSTICE SYLVESTER UMARU ONU (2005) ALL FWLR (pt.276} 632 at 631 and KISIRI INVESTMENT LTD v. LA-TERMINAL COMPANY LTD (2001) FWLR 667 at 770/771 that in the determination of the jurisdiction of the lower court to try the case, it is the claim of the plaintiff/Respondent that must be carefully scrutinized in order to determine its nature.
From the Statement of claim which supercedes the writ of Summons paragraph 17 (a) – (c) thereof state as follows:-.
“17. Plaintiff hence claims against the defendant as follows:
(a). a declaration that the sum of two hundred and fifty Thousand naira N250,000.00) paid over to the defendant on 16th December, 2003 through plaintiffs cheque number 03349815 drawn on plaintiffs account number NGN. 0562526001 with defendant at Ado Ekiti were for purposes of buying shares in the defendant.
(b). A mandatory order on defendant to issue to plaintiff the necessary share certificate in respect of the said sum of money.
(c) Two million naira (N2,000,000.00) general damages for defendant’s breach in giving plaintiff his share certificate and the consequent loss of dividends.”
The wordings of the claim of the plaintiff are clear and unambiguous that the sum of N250,000.00 was deposited with the Appellant’s bank for purposes of buying shares in the Defendant’s Company.
Again claim (b) is “for a mandatory order on defendant to issue the plaintiff the necessary shares certificate” in respect of the said sum of money while claim (c) is for damages “for the breach of issuing the shares certificate and consequent loss of dividends.”
The learned Counsel for the Appellant in my respectful view has ably argued, and I am in agreement with him that the above claims are predicated purchase of shares in a Public Limited Liability Company and the subsequent failure of the Company to issue the appropriate share certificate to the purchaser of shares in the Public Limited Liability Company. Thus, although the Respondent is the Appellant’s customer the transaction envisaged between them transcends mere banker/customer relationship and /or simple contractual relationship between them, which Akintan J.S.C. rightly held in ONUORAH VS. K. R. P. C LTD (2005) 6 NWLR (pt.921) 393 at 405 para. C.O are not included in the additional jurisdiction conferred on the Federal High Court under section 251 of the Constitution.
Learned Counsel has also argued that the Appellant being a Public Limited Liability Company, its activities are governed by the Companies and Allied matters Act and its banking business regulated by the Banking Act. Counsel for the Appellant has also referred us to section 37 of the Companies and Allied Matters Act Cap. C.20 Laws of the Federation of Nigeria 2004 to submit that the Appellant is primarily a company having been duly incorporated before being a Banker by the nature of its business.
He further submitted that all matters bothering on the shares of a Company are regulated by part 6 (iv) of the Companies and Allied Matters Act, Laws of the Federation of Nigeria 2004 and section 146 (1) and (2) thereof which relate to issuance of share certificates. Thus, he maintained, where there is a default in issuance as in leg (b) of the Respondent’s Claim, the remedy according to him is not in civil action but in a quasi-criminal action contained in section 146 (5) of the Companies and Allied Matters Act.
It was the contention of the learned Counsel for the Appellant that if the first leg of the issue is resolved in favour ‘of Appellant, then by the provisions of section 251 (1) (e) of the Constitution of the Federal Republic of Nigeria 1999, the Federal High Court has exclusive jurisdiction on any matter arising from the Companies and Allied Matters Act or regulating the operation of companies incorporated under the Act.
The cases of TRADE BANK PLC v. BENILUX NIG. LTD (2003) FWLR (pt.162) at 1871. KARIMU ADISA v. EMMANUEL OYINWOLA (2000) FWLR (pt.8) 1349 and NIGERIA TOBACCO CO. PLC v. MR. P. O. OSIFESO (2000) 14 WRN 37 at 41 were relied upon to buttress the above submissions and to hold that the Federal High Court and not the State High Court has the jurisdiction to hear the case based on the claim of the plaintiff/Respondent. He finally cited Item 18 of section 650 of the Companies and Allied Matters Act, which prescribes the Federal High Court as the appropriate court for matters of this nature, to urge this court to allow the appeal and set aside the Ruling of the lower court.
Now, section 37 of the Companies and Allied Matters Act Cap. C.20. Laws of the Federation 2004 provides as follows thus:-
“37. As from the date of incorporation mentioned in the certificate of incorporation, the subscriber of the Memorandum together with such other persons as may, from time to time, become members of the company, shall be a body corporate by the name contained in the memorandum, capable forthwith of exercising all the powers and functions of an incorporated company including the power to hold land, and having perpetual succession and common seal, but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up as is mentioned in this Act”.
From the name ascribed to the Appellant, as “Standard Trust Bank PLC” there is no doubt that it is a public liability Company incorporated under the Companies and Allied Matters Act by section 37 thereof for Banking Business.
Section 124 of the Act, which confers authority on the Company to allot shares, states that:
“Subject to the provisions of the Investment and Securities Act, the power to allot shares shall be vested in the Company, which may delegate it to Its directors.
Section 125 thereof prescribes the method of application for an allotment of shares (see paragraphs (a) – (d) thereof) whereas by section 126 an allotment of shares made and notified to an applicant in accordance with section 125 of the Act shall be an acceptance by the company of the offer by the applicant to purchase the shares and the contract takes effect on the date on which the allotment is made by the Company.”
In our instant case the Company (the Bank) has not accepted the offer made by the plaintiff/Respondent and as such there is no contractual relationship between them as far as the purchase of shares is Concerned.
What then is the remedy opened to the plaintiff by the Companies and Allied Matters Act under which this transaction was predicated where the Appellant refused to issue the Respondent with the shares certificate for the amount deposited?
Section 146 of the Act has the answer for: by subsection (2) thereof every person whose name is entered, as a member in the Register of members shall be entitled to receive within three months certificates of all the shares allotted to him.
By subsection (5) of section 146 of the Act, which is very germane to this case, it is specifically provided inter alia: –
“(5). If any Company on which a notice has been served requiring it to make good any default in complying with the provisions of subsection (1) of this section fails to make good the default within 10 days after service of the notice, the court may, on the application of the person entitled to have the certificate delivered, to him, make an order directing the company and any officer of the Company to make good the default within such time as may be specified in the order, and any such order may provide that all costs of and incidentals to the application shall be borne by the company or by any officer of the Company responsible for the default.”
It is pertinent to note here that in paragraphs 7, 8-13 the plaintiff/Respondent pleaded in his statement of claim how he gave notice through his solicitor for the share certificate to be issued to him to no avail.
In the Brief of argument of the Respondent the Learned Senior Advocate has submitted that the Respondent’s claim is for specific performance of issuing a share certificate in respect of the amount paid the Appellant for shares and breach of contract.
He has rightly also submitted that the question of jurisdiction in the matter largely depends on the 1999 Constitution, especially section 251 and case law. He has cited paragraphs (p), (q), (r) (s) of section 251 and the proviso to the paragraphs, Also a long line of cases has been cited to support his position that the Federal High Court has no exclusive jurisdiction to hear this case,
In ONUORAH VS. K. R. P.C. LTD Supra at 405 paragraph A-D, Akintan J.S.C. in his interpretation of a similar provision of the Constitution said:- ,
“A close examination of the additional jurisdiction conferred on the Federal High Court in the section and by the, 1979 Constitution clearly shows that the court was not conferred with jurisdiction to entertain claims founded on contract as in the instant case.
In other words, section 230 (1) provides limitation on the general and embracing jurisdiction of the State High Court because the items listed under the said section 230(1) can only be determined exclusively by the Federal High Court.
All other items not included in the list would therefore still be within the jurisdiction of the High Court. In the instant case, since disputes founded on contracts are not among those, included in the additional jurisdiction conferred on the Federal High Court, the court therefore had not jurisdiction to entertain the Appellant’s claim.”
To bring home the point made above to our instant case, which involves the interpretation of section, 251 (1) (d) of the 1999 Constitution and the proviso thereto, it is necessary to cite a case, which is almost on all fours with the case at hand. That case is JAMMAL STEEL STRUCTURES LIMITED v. AFRICAN CONTINENTAL  BANK (1967)-1975) 2 N.B.L.R. 476 (S.C.)
In that case the plaintiff/Respondent claimed the sum of N64, 328.39 from the defendant/Appellant being the balance due to the plaintiff, for overdraft granted by the plaintiff to the defendant at their Idunmota Branch, Lagos in the normal course of business as bankers to the defendant all for money paid by the plaintiff to the defendant at the latter’s request, which sum the Defendant had refused and/or neglected to pay in spite of repeated demands.
Upon the matter coming before the Lagos High Court the defendant raised objection as to the jurisdiction of the High Court to deal with the cause or matter having regard to the provisions of the Federal Revenue Court Decree 1973 particularly section 7 (1) (b) (iii) thereof which is in pari  materia with our section 251 (1) (d) of the 1999 Constitution.
The Learned trial Judge in his interpretation of that section held that the Lagos State High Court had jurisdiction to enter the cause or matter.
On Appeal to the Supreme Court, Elias C.J.N. and Ibekwe J.S.C. with Fatayi – Williams J.S.C. dissenting held dismissing the Appeal by a majority of two to one as follows: –
“1. That ejusdem generis rule applies to the interpretation of section 7 (1) (b) (iii) of the Federal Revenue Court Decree 1973 with the result that the word “measures” must be taken to qualify each of the preceding specifically enumerated subjects, including “banking”. This means that the natural and ordinary meaning to be given to the subsection is that it should be as “banking measures, foreign exchange measures, currency measures or other fiscal measures”.
“2. That in section 7 (1) (b) (iii) of the Federal Revenue Court Decree No. 13 of 1973 the word” other. measures must be construed ejusdem generis with the words “banking”, “foreign exchange” and “currency”. That thus construed, banking measures would cover such pieces of Legislation, orders and regulations of the Federal Government as its relates to banking – for example, the Banking Decree 1969, Central Bank of Nigeria Act (cap.30 of 1958 Edition) and ancillary enactments;” and the Learned Law Lords then added the Clincher as far as this case is concerned thus:
“3. Where any dispute relates to breach of or non compliance with certain for malities required by law for the lawful operations of banking business it is a matter for the Federal Revenue Court because it involves a Government measure and the Government is a necessary party.
“4. Where there involved only dispute between a bank and one or more of its customers, in the ordinary course of banking business or transaction as in the instant case, a State High Court would have jurisdiction to entertain the matter”.
Going by this locus classicus, can we say that the claim of the plaintiff is a dispute between a bank and one of its customers in the ordinary course of banking transaction or business, which can vest the High Court with the jurisdiction to hear same?
If we agree that the transaction was a normal one carried out in the normal course of banking business between a banker and his customer then the proviso to section 251 (1) (d) of the 1999 Constitution would apply to vest the Ekiti High Court with jurisdiction.
If on the other hand we agree that the transaction was for the purchase of shares, which is governed or regulated by the Companies and Allied Matters Act Cap. C-20 Laws of the Federation 2004, then by the combined effect of sections 37, 124, 125, 126, 146 (1) -146 (6) and 567 (the 1st schedule) of the Companies and Allied Matters Act, 2004, only the Federal High Court can entertain this Suit by virtue of Section 251 (1) (e) of the 1999 Constitution which provides that the Federal High Court shal1 have   exclusive jurisdiction arising from the operation of the Companies and Allied Matters Act and other enactment regulating the operation of Companies incorporated under the Companies land Allied Matters Act, which the Standard Trust Bank PLC is one of such Companies so incorporated to transact Banking Business under the Banking Act 2004.
To further answer the pertinent question as’ to which of the courts is being contemplated by section 146 of the Companies and Allied Matters Act 2004 to which the person entitled to the share certificate shall apply for the order for specific performance of the delivery of the share certificate as far as shares transactions are concerned the Act by section 567 (1) First Schedule at page 266 provides that: “Court” or “the Court” used in relation to Company means the Federal High Court and to the extent to which  application may be made to it, as; court includes the court of Appeal and the Supreme court of Nigeria.”
If the Respondents are still in doubt as to the court, which is seised with jurisdiction in a matter of this nature, section 251 (1) (e) of the Constitution, which the Respondents carefully avoided, provides that the Federal High court shall have exclusive jurisdiction in civil causes of matters.
“(e). Arising from the operation of the Companies and Allied Matters Act and any other enactment regulating the operation of Companies incorporated under the Companies and Allied Matters Act.”
Thus since the S.T.B. PLC. is a Company incorporated under the Act and the Allotment of shares is regulated by the Ad the Federal High Court has jurisdiction to the exclusion of a state High Court to hear the plaintiff’s claim irrespective of the fact that the plaintiff is a customer of the Defendant/Appellant’s Bank.
Accordingly all the cases cited by the Learned Counsel for the Appellant are apposite to the circumstances of this case.
As for the Respondent the case of CONTINENTAL INDUSTRY GAS LTD v. ONAFEKO (2003) 7 NWLR (pt.820) 479 at 494 rather supports the Appellant’s case.
The case of TRADE BANK PLC v. BENULEX (2003) 9 NWLR (pt.825) 416 to 432 speaks for itself as it relates to conversion of the proceeds from a cheque appellant paid to a stranger who was not a payee of the cheque in a normal banking transaction between Banker and customer.
All other cases cited by the Learned SAN were with the greatest respect cited out of con. See JAMMAL STEEL STRUCTURES LTD v. A.C.B. LTD (1967)-1975) 2 N.B.L.R. 476 at 478.
Much as I agree that by section 146 (6) a default in complying with the section shall be visited with a fine of N50 against the Company and officer so defaulting every day during which the default continues (a sort of quasi criminal liability) an Applicant or plaintiff has an option to bring a civil action as provided for under section 146 (5) of the Companies and Allied Matters Act as the plaintiff/Respondent in this cause has done even though to my mind in a wrong venue.
However, I agree that if the claim is under section 146 (6) the N50 fine imposed shall go to the purse of the Federal Government which still supports the view that it is the Federal High Court, that has jurisdiction in the matter.
On the whole I shall resolve the only issue in this appeal in favour of the Appellant. The Appeal therefore succeeds and the Ruling of the lower court per C. I. Akintayo J. of High Court Ado-Ekiti delivered on the 7th of February 2006 is hereby set aside for want of jurisdiction.
The claim alight to be spudeout accordingly:
I make no Order as to costs.