UNITED BANK FOR AFRICA PLC v. OLA-OLUWA AINA WIRE INDUSTRY (NIG) LTD & ANOR (2016)

UNITED BANK FOR AFRICA PLC v. OLA-OLUWA AINA WIRE INDUSTRY (NIG) LTD & ANOR

(2016)LCN/8201(CA)

In The Court of Appeal of Nigeria

On Friday, the 19th day of February, 2016

CA/AK/176M/2013

RATIO

COURT: JURISDICTION; WHETHER THE THE COPE OF THE JURISDICTION OF THE FEDERAL HIGH COURT

The question whether the jurisdiction of the Federal High Court under Section 251 (1) is restricted to the status of the parties as in this case or extends to the subject matter which for some time has been a bone of contention in the Superior Courts seems finally to have now been put to rest by the Superior Court in the recent case of Wema Securities and Finance Plc V. Nigeria Agricultural Insurance Corporation (2015) 16 NWLR (Pt. 1484) 93. In that case, the Supreme Court disagreed and reversed the Court of Appeal on its view that the trial Court lacked the jurisdiction to entertain the claim for failure to examine the subject matter or the claims before the Court which was within the jurisdiction of the High Court of the Federal Capital Territory Abuja even when the Respondent is an agency of the Federal Government. per. MOJEED ADEKUNLE OWOADE, J.C.A.

BANKING LAW: THE OPERATIONAL DUTIES OF A BANK IN RESPECT OF OR IN RELATION TO ITS FUNCTIONS WITHIN THE LIMITS OF ITS LICENSE

The Supreme Court per Pats-Acholonu JSC in the case of Societe Bancaire (Nigeria) Limited V. Margarida Salvado DE LLUCH (2012) 2 BFLR 326 at 335 declared that Section 251 (d) of the 1999 Constitution (as amended) connotes transactions on matters which are related to banking or the operation of a bank. Specifically, that “the expression connected with or pertaining to imports the state of affair where the matter involves a transaction which is peculiar to the banking operation and can only be carried on by the bank or a financial institution. It equally connotes the operational duties of a bank in respect of or in relation to its functions within the limits of its license.” per. MOJEED ADEKUNLE OWOADE, J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

UNITED BANK FOR AFRICA PLC – Appellant(s)

AND

1. OLA-OLUWA AINA WIRE INDUSTRY (NIG.) LTD

2. CHIEF (DR.) M. O. AINA – Respondent(s)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment):?This is an appeal against the decision of the Honourable Justice S. Oyejide Falola sitting at the High Court of Osun State, Osogbo delivered on 21st June 2013.

The Respondents as Plaintiffs took out a Writ of Summons dated 21st August 2007 against the Appellant as Defendant.

By paragraph 62 of the Respondents’ Consequential Amended Statement of Claim of 22/7/2013. The Respondents (Plaintiffs) claimed as follows:

a. An order directing the Defendant to refund forthwith to the Plaintiff the sum of N594, 696,982.54 representing excess and wrongful charge on the Plaintiffs account with the Defendant.

b. An order directing the Defendant to pay to the Plaintiff the mandatory 100% penalty on the sum certain of excess bank charges in (g) above arising from the provision of the Monetary, Credit, Foreign Trade and Exchange Policy No. 37 of 02/2004 and subsequent years in which the Defendant failed to refund to the Plaintiff within 14 days upon requisite notice given.

c. An order of perpetual injunction restraining the Defendants, either by themselves,

agents, servant, or privies from taking over, selling alienating or interfering howsoever with the plaintiffs business/factory at Km 9, Ikirun Road, Osogbo covered by certificate of statutory right of occupancy No. 27/27/2871 at the lands Registry formerly in Ibadan, Oyo State but now in Osogbo, Osun State or any other place.

d. One Billion Naira on the footing of aggravated and exemplary damages for the defendant’s reckless, mindless, wrongful?debating of the plaintiff’s account with the Defendant.

Also by paragraphs 66 – 67 of the Appellant’s Further Amended Statement of Defence/Counter Claim, dated 13/2/2012 at page 46 of the record of appeal, the Appellant Counter Claimed as follows:

66. The Defendant repeats paragraphs 1 – 65 of the Amended Statement of Defence.

67. Whereof the Defendant/counter claimant claims against the plaintiff as follows:

(a) The sum of N115,797,275.27 being the principal sum and accrued interest on the credit facility of N50 Million granted to the 1st Plaintiff by the Defendant in August, 2006.

(b) Interest on the said sum at the rate of 21% per annum from 1/9/06 until judgment is entered and

thereafter at the rate of 100% until final liquidation.

Meanwhile, on the 28th January 2013, the Appellant brought a Motion on Notice praying the Court for “an order joining the asset Management Corporation of Nigeria (hereinafter called ?AMCON) as Counter Claimant in this case…”

The grounds of the application are:

(a) The debt, the subject matter of the counter claim has been assigned by the Defendant to AMCON.

(b) The decision and/or any older made in this case will affect AMCON.

On 21/6/2013, the Learned trial Judge delivered his Ruling on the above application and held at pages 103 – 104 of the record refusing the application, that:

“Therefore, the conclusion I reach is that though AMCON is a necessary party to the counter claim of the Defendant this could (sic) Court lacks jurisdiction to join AMCON on the grounds that this Court lacks requisite jurisdiction to administer justice on AMCON. Being a necessary party is not enough, the party sought to be joined is suffering from legal disability and cannot appear before this Court. See Awolowo v. Minister

Internal Affairs (1962) L.L.R 177. The two reliefs claimed by the Defendant/Applicant in her counter claim can easily be determined without AMCON being joined as a party”.

Dissatisfied with the above decision, the Appellant filed a Notice of Appeal (containing four (4) grounds of appeal) into this Court on 12/7/2013.

The relevant briefs of argument for the appeal are as follows:

1. Appellants brief of argument dated and filed on 20/10/2014 – Settled by Peter Olomola.

2. Respondent?s brief of argument dated 1/12/2014 and filed on 2/12/2014 – Settled by Roy Bassey Ukoh Esq.

3. Appellant’s Reply brief dated 6/11/2015 and filed on 9/11/2015- Settled by Peter Olomola.

Learned Counsel for the Appellants nominated two (2) issues for determination. They are:

(a) Whether or not the Federal High Court has exclusive jurisdiction over all matters where the Federal Government or any of its agencies is a party irrespective of the subject matter.

(b) Whether or not any provision in the AMCON Act can override the clear and unambigious provisions of the 1999 Constitution of the Federal Republic of Nigeria.

?The Respondents

adopt the issues formulated for determination by the Appellant. I have carefully gone through the records in this appeal as well as the processes filed by the parties. I am convinced that the following two issues would meet the justice of the case.

1. Whether or not the Federal High Court has exclusive jurisdiction over all matters where the Federal Government or any of its agencies is a party irrespective of the subject matter.

2, Whether the Learned trial Judge was not justified to have refused the Defendant’s/Appellant?s application to join AMCON as a party to the suit.

On issue one, Learned Counsel for the Appellant submitted that it has been settled to finality by the Supreme Court of Nigeria that the Federal High Court only has exclusive jurisdiction over all matters where the Federal Government or any of its agencies is a party in civil cases and matters arising from administration, management and control of the Federal Government or any of its agencies.

He submitted that where the matter falls outside the administration, management and control of the Federal Government or any of its agencies, as in this case, where the

subject-matter is an alleged breach of contract, the Federal High Court does not have exclusive jurisdiction.

Appellant’s Counsel submitted that if the Honourable Court below had not completely and totally ignored the binding authorities of the Supreme Court and Court of Appeal cited by the Appellant he would have come to a different conclusion. That, for instance, in the case of Onuorah V. K.R.P.C. Ltd (2005) 6 NWLR (Pt. 921) 593 the Supreme Court held inter alia that:

“By virtue of Section 230 (1) (q) of the 1979 Constitution as amended, now Section 251(p) of the 1999 Constitution, the Federal High Court is vested with exclusive jurisdiction, inter alia on matters pertaining to the administration or the management and control of the Federal Government or any of its agencies. In the instant case, the Appellant claim does not fall within the ambit of Section 230 (1) (q) of the 1979 Constitution. Consequently, the submissions of Counsel on whether the Respondent is a subsidiary or agent of Nigerian National Petroleum Corporation are irrelevant.”

The Court, in that case, said Counsel, further held that in determining whether a Court has

jurisdiction in a particular matter or not, the Court will examine or consider. The nature of the Plaintiffs claim as disclosed in his Writ of Summons and statement of claim.

Also, that in that instant case, the Appellant claims are all based on breach of a simple contract between the parties. The jurisdiction of the Federal High Court, however, does not admit matters of simple contract between the parties.

Consequently, the Court of Appeal was right when it held that the trial Court had no jurisdiction to entertain the Appellants suit.

After further referring to the cases of Obiuweubi V. CBN (2011) 7 NWLR (Pt. 1247) 464; Adetayo & Ors V. Ademola & Ors (2010) 15 NWLR (Pt. 1215) 169 at 190; Aso Motel Kaduna Ltd V. Deyemo (2006) 7 NWLR (Pt. 978) 87 at 113, Appellant’s Counsel submitted that for the avoidance of doubt, the main relief of the Respondents against the Appellant at the lower Court is “An order directing the Defendant to refund forthwith to the Plaintiff the sum of N594,696,982.84 representing excess and wrongful charge on the Plaintiff’s account with the Defendant’s while the Appellant in its counter claim claims against

the Respondents “the sum of N115,797,275.27 being the principal sum and accrued interest on the credit facility of N50 million granted to the 1st Plaintiff by the Defendant in August 2006.”

He added that the debt which formed the subject matter of the Appellant’s claim was assigned by the Appellant to AMCON.

He referred to the cases of Integrated Timber and Plywood Products Ltd v. Union Bank of Nigeria Plc (2006) All FWLR (Pt. 324) 1789 and NDIC v. OKEM Ent. Ltd (2004) 10 NWLR (Pt. 880) 107 that it is beyond peradventure that the relationship that culminated in the dispute between the parties is a simple contract and that the Federal High Court does not have exclusive jurisdiction over simple contracts arising from banker and customer relationship.

Finally on issue one, Appellants Counsel submitted that since the subject matter of the dispute between the parties did not arise from administration, management and control of the Federal Government, the operation and interpretation of the Constitution as it affect the Federal Government or any of its agencies and since it arose from banker/customer relationship, the lower Court has jurisdiction

irrespective of the parties.

Learned Counsel for the Respondents largely conceded Appellant?s issue one when he submitted that it has been stated by the Appellate Court that the Federal High Court has exclusive jurisdiction on civil matters arising from administration, management and control of the Federal Government or any of its agencies. Also, that case law has over the years stated that the Federal High Court will be lacking in jurisdiction in matters relating to “simple contract” and where it involves dispute between a Bank and its Customer, the Federal High Court has no jurisdiction.

He referred to the cases of Onuorah V K.R.P.C Ltd (2005) 6 NWLR (Pt. 921) 393; Federal College of Education Oyo V. Akin Akinyemi Suit No. CA/1/14/06 (2007) LPELR 8484 9 (CA); Jammal Steel Structures Ltd. V. ACB Ltd. (1973) 1 All NLR (Pt. 11) 208 and Bronik Motors Ltd V. Wema Rank Ltd (1983) SCLR 296.

He submitted however that all the cases on banks and customer and even on simple contracts were decided before 2010 before AMCON was established.

That these positions are no longer sacrosanct in law with respect to the jurisdiction of the Federal

High Court.

Respondents Counsel referred to the Court of Appeal (Lagos Division) in the case of Tarzion Marine Enterprises Ltd V. Garavetta Resources and Investment Ltd & Anor Suit No. CA/L/1120/2010 (2013) LPELR – 20193 (CA) and submitted that Subsection (1) (a) (d) (p) and (s) of Section 251 of the 1999 Constitution are relevant and should be viewed to consider whether it is Federal High Court or the State High Court that has jurisdiction over issues related to AMCON, the party sought to be joined.

He submitted that when Subsections (a) (d) (p) and (s) of Section 251 of the 1999 Constitution is considered, it would not be correct and not sacrosanct that the Federal High Court only has exclusive jurisdiction only on matters where the Federal Government or any of its agencies is a party arising only from administration, management and control of the Federal Government or any of its agencies as argued by the Appellant.

He submitted that undoubtedly, the party sought to be joined by the Appellant is a Federal Government agency. That Subsections (a) (d) (p) and (s) of Section 251 (1) of the 1999 Constitution (as amended) are relevant to whether

which Court has jurisdiction, whether the Federal or State High Court on matters related to AMCON being sought as a party. And, therefore that all the authorities cited by the Appellant are not relevant and helpful to the Appellant on the issue of AMCON the party sought to be joined.

RESOLUTION OF ISSUE ONE

First, I will like to point out that whether the learned trial Judge intended such consequences or not, the conclusion reached in the Ruling of the learned trial Judge at page 103 of the record that “Therefore, the conclusion I reach is that though AMCON is a necessary party to the counter claim of the Defendant, this could (sic) Court lacks jurisdiction on the grounds that this Court lacks requisite jurisdiction to administer justice on AMCON …” puts some justification to grounds 1 and 2 of the Appellants Notice and grounds of appeal, to the effect baring their particulars.

1. The learned trial Judge erred in law when he refused to join the Asset Management Corporation of Nigeria (AMCON) as a counter-claimant in the suit on the ground that by virtue of the provisions of Section 251 of the 1999 Constitution of the Federal Republic

of Nigeria, the Federal High Court has exclusive jurisdiction over all matters where the Federal Government or any of its agencies is a party.

2. The learned trial Judge erred in law when he held that on the authority of NEPA v. Edegbero (2002) 18 NWLR (pt. 798) 79, the Federal High court has exclusive jurisdiction over all matters in which the Federal Government or any of its agencies is a party.

The provision of Section 251 (1) of the 1999 Constitution of the Federal Republic of Nigeria is reproduced below:

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 and 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

all 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 to 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 exchanger 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;

(e) arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of companies Incorporated under the Companies and Allied Matters Act;

(f) any federal enactment relating to copyright, patient, designs, trademarks and

passing-off industrial designs and merchandise marks business names, commercial and industrial monopolies, combines and trusts, standards of goods and commodities and industrial standards;

(g) any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their effluents and on such other Inland waterway as may be designated by any enactment to be an international waterway, all Federal ports, (including the Constitution and powers of the port, authorities for Federal ports) and carriage by sea;

(h) diplomatic, consular and trade representation;

(i) citizenship, naturalization and aliens deportation of persons who are not citizens of Nigeria, extradition, immigration into and emigration from Nigeria, passports and visas;

(i) bankruptcy and insolvency;

(k) aviation and safety of aircraft;

(l) arms, ammunition and explosives;

(m) drugs and poisons;

(n) mines and minerals (including oil fields, oil mining geological surveys and natural gas);

(o) weights and measures;

(p) the administration or the management and control of the Federal Government or any of its agencies;

(q)

subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;

(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies; and

(s) such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly;

Provided that nothing in the provisions of paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.

the recent case of Wema Securities and Finance Plc V. Nigeria Agricultural Insurance Corporation (2015) 16 NWLR (Pt. 1484) 93. In that case, the Supreme Court disagreed and reversed the Court of Appeal on its view that the trial Court lacked the jurisdiction to entertain the claim for failure to examine the subject matter or the claims before the Court which was within the jurisdiction of the High Court of the Federal Capital Territory Abuja even when the Respondent is an agency of the Federal Government.

The implication of the above and as it affects the instant appeal is that the jurisdiction of the Federal High Court under Section 251 (1) of the 1999 Constitution of the Federal Republic of Nigeria cannot be merely construed to be limited to the status of the party before the Court. Therefore, it would not be right for a State High Court to decline jurisdiction only on account of the fact that one of the parties is the Federal Government or any of its agencies but must always take into account the subject matter or the claims before the Court to determine whether indeed and in addition to the status of the parties, the claim is exclusively within the

jurisdiction of the Federal High Court.

My noble Lord, the Hon. Justice C. C. Nweze, JSC who read the leading judgment in the case of Wema Securities and Finance Plc V. Nigeria Agricultural Insurance Corporation (Supra) captured the position forcefully but beautifully when he held at page 135 of the Law Report that:

“For the avoidance of doubt, the prevailing jurisprudence on the actual question before this Court under issue two – and this is evidence in the cases cited above – is that in considering the issue of the jurisdiction of the Federal High Court under Section 251 (1) (supra), both the status of the parties (that is, whether it is the Federal Government or any of its agencies) and the subject matter of the claim (that is, whether it relates to any of the enumerated items in the said section) have to be looked at, Obiuweubi V. CBN (supra) 20, C – F; Oloruntoba-Oju V. Abdul-Raheem and Ors (supra); NURTW and Anor V. RTEAN and Ors. (supra) 47, C – G; NNPC and Ors V. Orhiowasele and Ors (supra); PDP and Anor V. Sylva and Ors (supra) 52 – 53, G – E; Ocholi Enojo-James V. INEC and Ors (2015) LPELR 24494 (SC) 56 – 57; Ohakim V. Agbaso (supra) 172, 236

– 237, G – D, Kakih V. PDP & Ors (supra) 374, 414, F – G; Ahmed V. Ahmed and Ors (supra) 274, 335, C – H.

It is hoped that Counsel would, henceforth stop hampering the smooth administration of justice and efficient management of cases, both at the Federal High Court and State High Courts, by their irksome recourse to their time-worm objection to the jurisdiction of these Courts based on the interpretation of Section 251 (1) (supra) now rested by the above decisions of this Court.”

Earlier on in this judgment the erudite Justice of the Supreme Court held pungently at page 130 of the law report in relation to the case before the Court as follows:

“As if it was minded to perpetuate the said ‘frenzy of doctrinal debates’ the lower Court, as already shown above took the view that the trial Court had no jurisdiction to entertain the matter before it just because the second Defendant (the Respondent in this appeal) was an agency of the Federal Government.

In my humble view, while it, rightly found that the Respondent is an agency of the Federal Government FMBN V. Olloh (supra); Idoniboye-Odu V. NNPC (supra) its conclusion that the mere

presence of that agency of the Federal Government robbed the trial Court of jurisdiction must rankle all liberal constitutional jurisprudents and judicial exegetes…?

Clearly therefore in relation to issue one, the learned trial Judge was wrong

to have held in relation only to the status of the parties that:

?… this Court lacks requisite jurisdiction to administer justice on AMCON …”

Issue one is resolved in favour of the Appellant.

The complaint of the Appellant in ground 3 of the Notice and grounds of appeal in relation to its issue 2 is that “The learned trial Judge erred in law when he held that by the provision of Section 53 of Asset Management Corporation of Nigeria (AMCON) Act, the Federal High Court has exclusive jurisdiction over all matters involving the Asset Management Corporation of Nigeria (AMCON).”

However, as I pointed out earlier in this judgment the real question for determination in issue 2 is “Whether the learned trial Judge was not justified to have refused the Defendant’s/Appellant’s application to join AMCON as a party to the suit.”

The crux of the Appellant’s submission in this respect

is that from the pleadings of both parties, the subject matter relates to a loan transaction. And, that a loan transaction is classified as a simple contract. That the simple contract was entered into by the Appellant and the Respondents which was breached by the Respondents.

The Appellant referred to the case of F.B.N Plc. V. Govt. Ondo State (2012) 11 NWLR (Pt. 1312) 502 at 505 and submitted that matters of simple contract are not included under Section 251 (1) of the 1999 Constitution, therefore the High Court of the Federal Capital Territory Abuja and State High Court have exclusive jurisdiction in such matters.

The Appellant adopted its submission under issue one and added that there is nothing in Section 53 of AMCON Act that confers exclusive jurisdiction on the Federal High Court. That the power given to the Chief Judge by the Section is to designate any Judge to hear only matters involving AMCON for such a period as the Chief Judge may determine. The section according to Counsel says “to the exclusion of any other matter” not to the exclusion of any other Court.

Learned Counsel for the Appellant submitted that both the provision of

Section 251 (1) of the 1999 Constitution (as amended) and the provision of Section 53 of the AMCON Act are clear and unambiguous and that the intentions of the law makers are also very clear. That if the law makers had intended to confer exclusive jurisdiction on the Federal High Court in respect of matters involving AMCON, that would have been stated clearly as was done in Section 251 (1) of the Constitution. However that, that would have been unconstitutional and he urged us to so hold.

Appellant’s Counsel concluded that the AMCON Act does not and cannot confer any exclusive jurisdiction on the Federal High Court as such provision would be inconsistent with Section 251 (1) of the 1999 Constitution of the Federal Republic of Nigeria and to that extent would be unconstitutional, null, void and liable to be struck out.

Learned Counsel for the Respondent submitted in essence that while the Appellant is concerned with the jurisdiction of the Federal High Court only in relation to sub-section (p) of Section 251 (1) of the 1999 Constitution, the reality of the joinder of AMCON as a party to the suit will necessitate a consideration of Subsections (a) (d)

(p) and (s) of the provision of Section 251 (1) of the said Constitution.

He submitted that even by the application of Subsection (p) of Section 251 (1) of the Constitution, the non-peforming loan or debt arising from the banker customer relationship now known and termed ?Acquired Eligible Bank Asset? arising from the simple contract between the Appellant and the Respondent in a Customer/Bank relationship assigned by the Appellant to AMCON, now becomes an action of AMCON arising out of administration, management and control of AMCON and banking generally. Since the function and reason AMCON was set up was to Acquire and managed ?Acquired Eligible bank Asset”(Section 4, AMCON Act).

Respondents’ Counsel referred to the cases of Adetona & Ors V. Igele General Enterprises Ltd Suit No. SC 237/2005, 2011 LPELR ? 159 (SC) and Makalu V. Federal Commissioner for Works and Housing (1976) 3 S.C. 60 and submitted further that the loan assigned by the Appellant to AMCON have become an “eligible bank asset” and therefore takes it outside the meaning of an ordinary debt between a Bank and its customer and simple contract and makes it a

matter pertaining to banking, banks and other fiscal measures within the meaning of Subparagraph (d) as such it is only the Federal High Court that will have the jurisdiction to adjudicate on AMCON.

On the above score, Respondents’ Counsel submitted that proceeds from AMCON whose subscribers are both the Federal Ministry of Finance and the CBN (S. 291 and S. 47 AMCON ACT) shall be shared equally among them, thus making that proceeds a revenue of the Federal Government accruing to the Federal Government at a future date.

He submitted that AMCON Act 2010 draws its strength from the wording of Section 251 (1) of the 1999 Constitution and in no way inconsistent with the provisions of the Constitution. That in fact, Section 53 of the AMCON Act is complementing and expanding the exclusive jurisdiction conferred on the Federal High Court arising from the powers in S. 251 (1) 1999 Constitution.

RESOLUTION OF ISSUE TWO

The justification or otherwise of the refusal of the Defendant’s Appellant’s application by the learned trial Judge to join AMCON as a party to the suit starts with the ground of the Defendant’s Appellant’s application itself. The

grounds of the Appellant’s application to join AMCON as a party to the suit which forms the subject matter of this appeal are as follows:

(a) The debt, the subject matter of the counter claim has been assigned by the Defendant to AMCON.

(b) The decision and/or any order made in this case will affect AMCON.

In the ensuring ruling by the learned trial Judge, he agreed with the Defendant/Appellant that AMCON is a necessary party but that he does not have jurisdiction over AMCON.

In the instant case, the learned trial Judge could have given a wrong perhaps insufficient reasons to have refused the Appellant?s application for joinder of AMCON as a party to the Suit. However, in all the circumstances of the case, the learned trial Judge was right to have refused the Appellant’s application for joinder of AMCON in the particular suit.

There may well be circumstances where AMCON as a party could be accommodated within the jurisdiction of a State High Court but the instant case is an exception to such. This is because even where the suit before the Court is agreeable in relation

to a simple contract between banker and customer, the Defendant’s/Appellant?s application to join AMCON and the reason for so doing would have’ changed the template of the subject matter in the suit from that of a simple contract to that “Connected with or pertaining to 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.”

In the contemplation of the provision of S. 251 (1) (1) of the 1999 Constitution (as amended).

be carried on by the bank or a financial institution. It equally connotes the operational duties of a bank in respect of or in relation to its functions within the limits of its license.”

Clearly, the assignment of the Appellant’s debt to AMCON is an action connected with banking under Section 251 (1) (d) of the 1999 Constitution (as amended).

Learned Counsel for the Respondent was right when he submitted that the loan assigned by the Appellant to AMCON have become an ‘eligible bank asset’ and therefore takes it outside the meaning of an ordinary debt between a Bank and its customer and simple contract and makes it a matter pertaining to banking, bank and other fiscal measures within the meaning of Subparagraph (d) of Section 251 (1) of the 1999 Constitution and that as such it is only the Federal High Court that will have the jurisdiction to adjudicate on such matters.

The learned trial Judge himself was not totally oblivious of these circumstances that was probably the reason why he made references albeit without adequate explanation to the provision of Section 251 (1) (d) and Section 53 of the AMCON Act in the ruling at page 102 of the record

of appeal.

Finally, in answer to issue two, the learned trial Judge was justified to have refused to Appellant’s application to join AMCON as a party to the suit.

Issue two is resolved against the Appellant.

In this appeal, even though issue one was resolved in favour of the Appellant the determinant issue in the appeal is issue two which was resolved against the Appellant.

Consequently, this appeal lacks merit and it is accordingly dismissed.

N30, 000.00 costs is awarded against the Appellant.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree that the appeal be allowed based on the determinant Issue No. 2 of the Appellant.

The trial judge was right in declining Jurisdiction in the suit and in refusing to grant the application for the joinder of AMCON.

JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege of reading in advance the leading judgment just delivered by my learned brother Mojeed Adekunle Owoade, JCA.

He has comprehensively dealt with the issues for determination. I adopt the reasoning and conclusions in the leading judgment in also dismissing the appeal.

I abide by the order as to costs.

Appearances

Peter OlomolaFor Appellant

AND

Roy Bassey with him, Niyi AkinsolaFor Respondent