Believers Fisheries Dredging & Anor V. U.T.B. Trustees Limited (2010)

LawGlobal-Hub Lead Judgment Report

BODE RHODES-VIVOUR, J.C.A.

The appellants as plaintiffs sued the respondent as defendant on a Writ of Summons and Statement of Claim for:-

1. A Declaration that the loan agreement for N2.5m between the 1st plaintiff and the defendant is null and void, illegal and/or unenforceable in that the defendant is neither a Licensed Bank nor a Licensed Financial Institution and thereby committed criminal offences under the Central Bank of Nigeria Decree and the Banking and other Financial Institutions Decree 1991.
2. A Declaration that the aftersaid contract being money lending transaction is null and void, illegal and or unenforceable in that the defendant is not a Licensed money lender and thereby committed criminal offences and cannot take securities for the said loan under the money lenders Laws of Lagos State.
3. A Declaration that the Deed of Mortgage dated 20th February, 1997 and registered as No: 81/81/91, 2nd plaintiff as Guarantor in furtherance of the aforesaid illegal agreement is illegal, null and void and or unenforceable.
4. An order that the Certificate of Occupancy dated 15th March,1990 and registered as No: 53/53/1990 at Ikeja in the Land Registry, Ikeja the subject matter of the Deed of Mortgage between the parties herein be returned to the plaintiffs by the defendant, formerly U.T.B. Securities Ltd.
5. An order of Perpetual Injunction against the defendant, its agents, servants and privies from selling, assigning, alienating or dealing with the property situate at 3/9 Moliki Street, Mushin and covered by Certificate of Occupancy registered as 53/53/1990 in the Lands Registry Ikeja the subject matter of the mortgage between the plaintiffs and the defendant.
6. N100,000.00K damages for conversion of the Certificate of Occupancy of the said plaintiff.

These originating processes were served on the defendant. Rather than file a Statement of Defence, the defendant filed a Notice of Preliminary Objection to strike out the suit for want of jurisdiction. The grounds being:-

1. By Section 231 (d) of the 1979 Constitution as amended by the Constitution (Enforcement and Modification Decree No 107 of 1993, the subject matter of this action falls out of jurisdiction of this Honourable Court.
2. By Section 190(2) (3) of the Constitution supra, the plaintiffs are not the proper parties to bring this action.
3. The action is premature and against public policy.

The learned trial Judge, Shitta-Bay J. heard submissions from Mr. O. Okereke, learned counsel for the defendant on the 8th of September, 1998. The plaintiffs were absent and unrepresented. On conclusion of counsel submissions the learned trial Judge delivered a Ruling. I shall reproduce it in full.

“Court: I have examined the preliminary objection herein dated the 15th day of August, 1997. I have also considered carefully the submissions of learned counsel for the defendant/applicant.

In view of the authorities cited by the learned counsel, and the fact that the plaintiff/respondents have not filed any counter-affidavit to the application. I am satisfied that the defendants application has merit. The preliminary objection therefore succeeds, and the plaintiffs claim is hereby dismissed accordingly, as this Honourable Court has no jurisdiction to entertain the plaintiffs suit.”

This appeal is against that Ruling. Briefs were filed and exchanged. The appellants brief was deemed duly filed on the 2nd day of June, 2006. The respondents brief was filed on the 3rd of August, 2006, while the appellants filed a reply brief on the 11th of September, 2006. Learned counsel for the appellant formulated two issues. They read:-

ISSUE 1:

Whether on the face of the Writ of Summons and Statement of Claim filed by the appellants, the High Court lacked jurisdiction to determine the declarations and reliefs claimed.

ISSUE 2:

Whether the High Court was right in Law to dismiss the appellants suit when the prayer contained in the Notice of Preliminary Objection prayed the court to strike out the suit for want of jurisdiction.

Learned counsel for the respondent formulated three issues. They are:-

ISSUE 1:

Whether under Section 230 (d) of the Constitution of the Federal Republic of Nigeria 1979 as amended by the Constitution (Suspension and Modification) Decree No: 107 of 1993 the High Court of Lagos State has jurisdiction to adjudicate on matters relating to Banks and Banking.