Federal Mortgage Bank Of Nigeria. V. P. N. Olloh (2002)

LAWGLOBAL HUB Lead Judgment Report

O. UWAIFO, J.S.C.

The respondent got a loan from the appellant’s Benin City Branch in 1979 upon a mortgage deed in which he used his property at No.23 (now No.63) Okumagba Avenue, Warri as collateral. In September, 1992, he liquidated the principal loan together with accrued interest. He then asked that a deed of release be prepared in order for him to have his property back unencumbered. The appellant failed to do so but merely handed back to him his document of title. The respondent has alleged that he could not raise another loan to develop his country home because without the deed of release, the property remains apparently encumbered. On 16th March, 1994, the respondent filed a writ of summons in the High Court of Delta State at Warri against the appellant claiming damages of N5,000,000.00 and an order directing the appellant to release his property from encumbrance. Pleadings were exchanged. Thereafter the appellant brought an application on 4 November, 1994 to have the suit struck out for incompetence on the basis that it was brought in the State High Court which lacked the jurisdiction to entertain the same. The ground for this was stated to be that the appellant bank was an agent of the Federal Government of Nigeria created by statute and could therefore not be sued in a State High Court. Reliance was placed on section 230(1) paragraphs (q), (r) and (s) of the 1979 Constitution as amended by the Constitution (Suspension and Modification) Decree No. 107 of 1993. The learned trial Judge (Bazunu, 1:) in a considered ruling given on 25 April, 1995, found no merit in the application and dismissed it. He based his decision on the fact that the dispute between the parties was that of a bank and its customer, and that by virtue of the proviso to section 230(1) (d) of the said Constitution, a State High Court has jurisdiction to entertain it. The appellant took the matter to the Court of Appeal, Benin Division. On 25 April, 1997, the court upheld the decision of the trial court and in addition held that the argument of appellant’s counsel that the appellant bank was an agency of the Federal Government was untenable. The appeal was dismissed. The appellant has now further appealed to this court upon a sole issue, namely whether the court below correctly held that the State High Court had jurisdiction to entertain this action by virtue of the provisions of the said section 230(1)(d). In the argument canvassed by the appellant, it is conceded that the proviso to section 230(1)(d) saves the jurisdiction of a State High Court to entertain a dispute between a bank and its customer but that it is a general provision relating to banks. The argument goes further that the Federal Mortgage Bank of Nigeria Act (Cap. 138), Laws of the Federation, 1990, read along with section 277(1)(f) of the 1979 Constitution puts it beyond any doubt that the appellant is an agency of the Federal Government. That being so, according to the argument, the specific provision in paragraph(s) of section 230(1) which is applicable to the appellant takes away the State High Court’s jurisdiction to entertain this matter.

The respondent on the other hand insists that the appellant being a bank and the respondent being its customer, the proviso to paragraph (d) of section 230(1) applies, that the suit has nothing to do with any Federal Government agency and that the appellant is not such an agency. It is argued further that the relationship between a bank and its customer is purely contractual and that that does not touch on the vital interest of the Federal Government as to warrant conferring exclusive jurisdiction on the Federal High Court in respect thereof. The cases of Royal Petroleum Co. Ltd. v. First Bank of Nigeria Ltd. (1997) 6 NWLR (Pt.510) 584; Nigeria Deposit Insurance Corporation v. Federal Mortgage Bank of Nigeria (1997) 2 NWLR (Pt.490) 735, as confirmed sub nom Federal Mortgage Bank of Nigeria v. Nigeria Deposit Insurance Corporation (1999) 2 NWLR (Pt.591) 333 by this court, and D. Stephens Industries Ltd. v. Bank of Credit and Commerce International (Nig.) Ltd. (1999) 11NWLR (Pt.625) 29 were cited and relied on. The argument canvassed by learned counsel for the appellant has introduced a dimension which ought to receive full consideration beyond the principle stated in Federal Mortgage Bank of Nigeria v. Nigeria Deposit Insurance Corporation (1999) 2 NWLR (Pt.591) 333 or, at any rate, before the said principle is resorted to in this appeal. The argument draws attention to section 277(1)(f) of the 1979 Constitution then applicable, the said section 230(1)(d), (q), (r) &,(s) and the Federal Mortgage Bank of Nigeria Act which, set up the appellant bank. It then goes on to say that the appellant is a Federal Government agency and that by virtue of section 230(1) (q), (r) & (s) it can only be sued in the Federal High Court on the ground that those paragraphs of that section make special provisions for Federal Government agencies and that any other provision such as section 230(l)(d) was a general provision and therefore inapplicable to the appellant. The provisions of section 230(1)(d), (q), (r) & (s) read:

“230(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 or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from –

(d) 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; letter of credit promissory note 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;

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

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

(s) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by Federal Government or any of its agencies.”

As learned counsel for the appellant also referred to and relied, on section 277(1)(f) of the 1979 Constitution, I reproduce the relevant provision of section 277(1), i.e. paras. (d) and (f), as follows:

“‘public service of the Federation’ means the service of, the Federation in any capacity in respect of the, Government of the Federation, and includes services as

(d) staff of any statutory corporation established by an Act of the National Assembly;

(f) staff of any company or enterprise, in which the Government of the Federation, or its agency owns controlling, shares or interest.

Learned counsel did not explain in what way the reading of the Federal Mortgage Bank of Nigeria Act along with either of the above provisions of section 277(1) of the 1979 Constitution “puts it beyond any doubt that the appellant is an agency of the Federal Government as he canvassed in the appellant’s brief of argument. There is nothing whatever in the Federal Mortgage Bank Act to suggest that the appellant is an agency of the Federal Government. It is no doubt true that the said Bank was created by an Act of the National Assembly and therefore at best considered the property of the Federal Government with the sole aim of providing financial assistance in the form of long-term facilities to “Nigerian individuals desiring to acquire houses of their own and the granting of long-term credit facilities to mortgage institutions with a view to enabling those institutions to grant comparable facilities to Nigerian individuals” as per the preamble of the Act. The Bank is no more than a business establishment given functions to perform; but neither of those functions nor the Bank itself has any connection with the affairs or the running of the Federal Government. It seems to me the reason learned counsel for the appellant thought that the appellant was an agency of the Federal Government is that by virtue of section 277(1)(f) of the 1979 Constitution, public service of the Federation in any capacity includes staff of any statutory corporation established by an Act of the National Assembly, such as the appellant. The appellant cannot be regarded as a Federal Government agency simply because its staff are by definition under section 277( 1)of the 1979 Constitution referred to as persons working in the public service of the Federation. That is not a criterion and it should in addition be said that that definition has a limited connotation which does not even make such staff Federal Government employees. It has been decided by this court in Okomu Oil Palm Co. Ltd. v. Iserhienrhien (2001) 6 NWLR (Pt.710) 660; (2001) FWLR (Pt.45) 670; (2001) 85 LRCN 873, that the definition therein, read along with the Fifth Schedule to that Constitution, is essentially for the purpose of the Code of Conduct for public officers; that is to say, to specify by definition who is a public officer to whom the Code of Conduct applies. It does not imply that an establishment in which such public officers are employed is a Federal Government body or an agency of the Government as learned counsel for the appellant’s contention would seem to suggest.