Ecobank Nigeria Limited V. Anchorage Leisures Limited & Ors (2018)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Lagos Division, or Court below or Lower Court, Coram: Sidi Dauda Bage, JCA (as he then was), Samuel Chukwudumebi Oseji and Abimbola O. Obaseki – Adejumo JJCA delivered on the 30th day of March, 2016 where the Lower Court affirmed the ruling of the trial Court delivered on 11th day of November, 2015 per M. B. Idris J.

It is in dissatisfaction with the decision of the Court below that the appellant has come before the Supreme Court to ventilate its grievances.

FACTS BRIEFLY STATED:

Respondents’ grouse in presenting the suit in this appeal is that Appellant herein allegedly failed and/or neglected to adhere to an “in-principle” agreement reached between a certain Honeywell Group Limited (not a party in the suit of this appeal) and the appellant herein as shown in the letters dated 22nd July, 2013. (compiled at pages 31 and 32 of the record of appeal, Vol.1).

As shown by the letters, respondents herein were indebted to the appellant bank over sums in excess of N5.5 Billion

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following which Honeywell Group Limited proposed to the appellant bank that the latter grant to it concessions on the total indebtedness. Appellant indeed, gave the concession as sought by Honeywell Group Limited that out of the entire N5.5 Billion outstanding, the negotiating Honeywell Group Limited pay a concessionary sum of N3.5 Billion on terms and conditions mutually agreed at the meeting of 22nd July, 2013.

Further agreed at the 22nd July, 2013 meeting was that the negotiating third party, Honeywell Group Limited pay an immediate sum of N500,000,000.00 whilst the remainder N3 Billion is paid in bullet point form and before the departure of the then visiting CBN examiners at the appellants bank, in August, 2013. It is necessary to add that the then visiting CBN examiners were examining the appellants book on its exposures chief amongst which was the obligations subject of the 22nd July, 2013 “in-principle” agreement.

In a letter dated 22nd July, 2013 the negotiating third party, Honeywell Group Limited proposed fresh terms so as to stagger the repayment of the N3 Billion balance contrary to the agreement earlier reached. The instructive

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paragraph in the letter by Honeywell Group Limited dated 22nd July, 2013 and compiled at page 31 of the record of appeal Vol.1 reads thus:-

“As part of the verbal agreement reached at the meeting, we shall immediately pay the sum of N500 Million towards the facility. We propose that the balance of N3 Billion be paid in three equal half yearly instalments.” (Emphasis supplied).

It is clear that the payment of N500 Million was as agreed in the meeting of 22nd July, 2013 while the proposed staggered repayments constitutes a fresh proposal outside the agreement of 22nd July, 2013.

In confirmation of the above and upon receipt of the fresh proposal, appellant herein immediately caused to be issued; a letter dated same 22nd July, 2013 (page 32 of the record of appeal, Vol.l) rejecting the new proposal and demanding a reversion to the agreement of 22nd July, 2013 in the following words:

“Please note that the agreement was for a full and final payment of N3.5 Billion to be paid immediately by N500 Million on Monday July 22, 2013 and the balance to be paid immediately thereafter before the CBN examiners leave the Bank. Kindly therefore revert in line with the agreement.”<br< p=””

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There is no record of Honeywell Group Limiteds immediate and/or prompt reaction to the above reproduced assertions.

Also by a letter dated 6th September, 2013 (pages 64-65) of the record of appeal, Vol.1) it was again admitted by the negotiating third party that agreement reached at the meeting of 22nd July, 2013 and for good order’s sake was for a bullet payment of N3.5 Billion.

By a letter dated 14th September, 2014 (at page 56 of the record of appeal, Vol.1) the appellant’s bank again informed the negotiating third party that the agreement of 22nd July, 2013 became extinct and frustrated in August, 2013 following the palpable breach as contained and proposed in the letter dated 22nd July, 2013. However, that based on its unending proposal that the N3.5 Billion be deemed as full and final settlement of the obligations, appellant’s management submitted the fresh proposal to its board of directors and having considered same, the board rejected the offer.

Following the foregoing, respondents herein approached the trial Court seeking the reliefs in the originating processes previously described.

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SOUGHT BUT REFUSED EX-PARTE ORDERS ON PUBLICATIONS;

Prior to the presentment of the respondents’ suit, the Central Bank of Nigeria had directed all banks in Nigeria, including the appellant herein to publish the names of all debtors in their books, It was the CBN’s further directive that any debt, subject of any on-going Court action be excluded in the proposed list/names to be published. Intuitively, respondents’ suit, in the eve of the CBNs directed publications, was aimed at stopping any publication of the respondents’ names as debtors as then directed by the CBN.

In confirmation of the above, respondents herein upon filing of the suit, sought via an ex-parte application orders to the effect that appellant herein be restrained from publishing their names as a debtor in furtherance of the CBN directive (respondents’ motion ex-parte dated 5th August, 2015 is compiled at pages 68-131 of the record of appeal, Vol.1).

The Order of the trial Judge is subject of the committal proceedings now before the Supreme Court in appeal SC.407/2016.

APPELLANT’S NOTICE OF PRELIMINARY OBNJECTION BEFORE THE TRIAL COURT:

However, following the refusal of their motion ex-parte

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seeking restriction on advertisement, respondents herein served on the appellant the originating processes including a Motion on Notice for interlocutory injunction. Upon receipt, appellant herein caused to be filed a Notice of preliminary Objection seeking the striking out and/or dismissal of the suit by the Court for want of jurisdiction.

Appellant’s objection compiled at pages 138-176 of the record of appeal including its further affidavit and written address at pages 176-188 of the record of appeal, vol.1 were predicated on grounds that the suit in this appeal is over a simple contract which the Lower Court has no jurisdiction to hear or determine.

Further grounds to the objection were that the suit did not show any cause of action against appellant herein in view of the fact that the letter which respondents relied heavily upon (and on which they also sought specific performance) was authored by a third party who is not party to the proceedings. Further arguments canvassed before the trial Court was that the Court at the time of hearing of the preliminary objection could only consider respondents’ statement of claim which did not contain any

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evidence of a banker-customer relationship on which respondents hinged their arguments.

Having heard appellant’s preliminary objection and prior to the scheduled ruling, respondents herein caused to be originated an application dated 5th November, 2015 (compiled at pages 199-212 of the record of appeal) seeking as reproduced below:

“AN ORDER of this Honourable Court abridging the time within which this Honourable Court may determine the Defendant/Respondent’s Notice of Preliminary Objection dated and filed on 8th September, 2015.”

Also asked of the trial Court was an order for accelerated hearing of the suit.

At the resumed hearing before the trial Court on the 11th day of December, 2015 appellant’s counsel, informed the learned trial Judge, Idris J of the contempt apparent on the Motion on Notice dated 5th November, 2015. (Record of the trial Court’s proceedings is compiled at pages 233-237 of the record of appeal, vol.1).

Following parties’ arguments on the contempt apparent on the face of the respondents’ process, His Lordship, Idris J, ruled that he indeed, saw the subject Motion seeking for

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abridgment of time but disregarded same. Subsequent to this, respondents’ senior counsel withdrew the contemptuous Motion on Notice following which His Lordship, Idris J, again held as follows:

“The application having been withdrawn this morning, it is hereby dismissed. Counsel should be warned to desist from filing applications that might make it appear as though they owned the Court. The Court belong (sic) to everyone, it belongs to no one. I award N5,000.00 cost in favour of the defendants against the plaintiffs. Matter is adjourned to 14/12/15 for hearing.

(Emphasis supplied at pages 236-237 of the record of appeal, vol.1).

The appellant aggrieved approached the Court of Appeal. The appellant filed 2 (two) Notices of Appeal before the Court of Appeal one challenging the ruling of the trial Court dismissing appellant’s notice of preliminary objection dated and filed on the 11th day of December, 2015. (compiled at pages 138-242 of the record of appeal vol.1),

The second Notice of Appeal, dated same 11th December, 2015 was against the trial Courts ruling in respect of respondents’ Motion on Notice dated 5th November, 2015

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which was contemptuous of the trial Court and which the trial Court discountenanced while adjourning hearing on the contempt proceedings commenced by the respondents against the appellant bank. (pages 243-246 of the record of appeal vol.1).

At the hearing of the appeal, appellant herein withdrew the Notice of Appeal against the trial Court’s ruling over respondents’ contemptuous Motion on Notice and urged the Court of Appeal to discountenance all arguments canvassed in the appellant’s brief of argument in respect of same. (Appellant’s brief of argument is compiled at pages 1001-1034 of the record of appeal, vol.4).

The issue submitted in the surviving appeal was whether the trial Court, being a Federal High Court was right to have assumed jurisdiction on a claim predicated on a “simple contract” as apparent in the respondents’ statement of claim.

It was further submitted before the Court of Appeal that, should all of appellant’s arguments on assumption of jurisdiction over simple contract and absence of cause of action fail, the fact that justice in the suit of this appeal can never be seen to have been done by the trial Court’s word for word duplication is enough to set aside such a ruling.

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(see para. 3.84 of appellant’s reply brief compiled at page 1223 of the record of appeal, vol.4).

The appellant’s angst at the Court below is that the learned trial judge had adopted the submissions of respondent’s counsel.

The appellant herein urges that it be allowed to utilise the Notice of Appeal filed on the 3rd day of May, 2016. That permission is of course granted.

On the 23rd April 2018 date of hearing, learned counsel for the appellant, G. C. Duru Esq. adopted the brief of argument filed on 25/7/2016 in which were distilled three issues for the determination of the appeal, viz:-

i. Whether the Court of Appeal was right when it held that respondents’ statement of Claim did not disclose any fact based on simple contract and that reliefs sought could only be granted by the trial Court thereby affirming the trial Court’s assumption of jurisdiction on the non-issue of banker-customer relationship

(Distilled from grounds 1, 2 and 6 in the Notice of Appeal).

ii. Whether the Court of Appeal was right when it held that Honeywell Group limited (a third party) negotiated the 22-7-13 agreement on behalf of the

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respondents giving the respondents’ a cause of action thereby affirming the ruling of the trial Court on “other grounds” in the absence of a respondents’ Notice (Distilled from the grounds 3, 4 and 7 in the Notice of Appeal).

iii. Whether the Court of Appeal was right to have overlooked the trial Court’s word for word duplication of respondents’ address as its reasoning and ruling thereby allowing a gross miscarriage of justice also by the order of accelerated hearing of the substantive suit before the same Judge (Distilled from grounds 5 and 8 in the Notice of Appeal).

The appellant also filed and learned counsel adopted a reply brief of 27/10/16

Learned counsel for the respondents, Olabode Olanipekun Esq. adopted the brief of argument filed on 27/9/2016 and apart from the objection raised and argued against appellant’s issue No.3 went ahead to formulate three issues for determination, thus:-

i) Whether the Lower Court was right to have affirmed the decision of the trial Court to assume jurisdiction on the claim before it arising out of a banker-customer relationship, – Grounds 1, 2, 6.

ii) Whether the Lower Court was correct in its

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resolution of the issue of cause of action, having considered the entire circumstances and facts of the case – Grounds 3, 4 and 7.

iii) Did the decision of either of the two Lower Courts breach appellant’s right to fair hearing – Grounds 5 and 8.

The respondents also filed a List of Additional Authorities on 23/4/2018.

It needs no saying that the Objection to appellant’s issue 3 as raised by the respondents would be first tackled before anything else is done.

PRELIMINARY OBJECTION:

Learned counsel for the objector referred to respondents’ motion filed on 22nd September, 2016 asking for the striking out of appellant’s argument under Issue 3 in the brief of argument as the said issue arose from grounds of appeal which the appellant had abandoned and it was struck out at the Court of Appeal. That the striking out was not appealed against and so no issue can emanate therefrom. He cited Akere v. Governor of Oyo State (2012) 12 NWLR (Pt.1314) 240 at 278; Udo v Reg. Trustees B. C. & Star (2011) 17 NWLR (Pt.1276) 223 at 233: Ajide v. Kelani (1985) 3 NWLR (Pt.12) 248 at 259 etc.

In response, learned counsel for the appellant referred

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the Court to grounds 5 and 8 in the extant Notice of Appeal to the effect that the said Issue 3 is well covered by the said grounds of appeal.

That while the Notice of Appeal which was struck out was in respect of the trial Court’s bench ruling, the appeal before the Supreme Court is in respect of the ruling of the same trial Court on appellant’s preliminary objection in relation to the cause of action.

That the grounds of Appeal herein are competent grounds and relate to the decision of the subject of this appeal.

He referred to C.C.B. v Ekperi (2007) 3 NWLR (pt.1022) 493.

The thrust of this preliminary objection may be simply stated to be an assertion by the respondent/objector that this Court cannot assume jurisdiction under Issue 3 in the appellant’s brief for being incompetent for the following reasons, viz:-

(i) There is no ground of appeal to sustain the arguments under appellants issue 3 and as such, the arguments neither arose from the notice of appeal to this Court nor from the decision of the Lower Court.

(ii) The Lower Court has determined those arguments under appellants issue 3 by striking same out at

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the request of the appellant and there is no appeal against that finding.

That shown to be the angle put forward by the objector, there needs be cleared the point variously referred to by this Court that an appeal presumes or presupposes the existence of some decision appealed against where there is an absence of such a decision on a point it will be a waste of time for an appeal to lie against what the Lower Court had not reached and pronounced a decision upon. This is in consonance with the laid down practice of law that an appeal is a rehearing and for that to take place the appellate Court would reconsider the materials before the trial judge and would not hesitate to overrule his decision even on facts where after due regard and consideration it is manifest that the decision is wrong. See Babalola v. State (1989) 4 NWLR (Pt.115) 264 at 294 per Oputa JSC; Okhuarobo v. Aigbe (2002) 9 NWLR (Pt.711) 29 at 83 per Ayoola JSC.

Taking a cue from the above stated principles the appellant contends that the Objector’s arguments that Issue 3 did not relate to any ground and that same did not also arise from the judgment herein appealed are not borne out of

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what is before this Court including the clearly conflicting submissions of counsel for the same respondents/objectors.

The respondents/objectors learned counsel had in paragraphs 3.5 of the brief of argument canvassed the following:-

“The point being made from the totality of the foregoing is that this Court cannot assume jurisdiction over the arguments under issue 3 in appellant’s brief for being incompetent and for the reasons that:

i. There is no ground of appeal to sustain the arguments under appellant’s issue 3 and as such, the arguments neither arose from the notice of appeal to this court nor from the decision of the Lower Court.

ii. The Lower Court has determined those arguments under the appellant’s issue 3 by striking same out at the request of the appellant and there is no appeal against that finding.”

Taking conually with the stance of the learned counsel for the respondents/objectors, the said grounds of appellant’s grounds 5 and 8 in the Notice of Appeal shorn of their particulars are stated hereunder, viz:-

5. “The Court of Appeal greatly erred in law, justice and fairness thereby occasioning a prejudicial

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miscarriage of justice when it failed and/or refused to make any pronouncement on the trial Court’s word for word duplication of the respondents’ address as its reasoning and decision against the appellant.

8. The learned Justices of the Court of Appeal erred in law when they ordered that the substantive suit shall be given accelerated hearing, without any prayer/request from any of the parties on record and/or any affidavit placed before the Court to that effect.

I see no point going the whole hog in a clear academic discourse ignited by the preliminary Objection as the Record show a completely different scenario from what the objector is positing. For a fact, the appellant’s issue 3 properly distilled from grounds 5 and 8 of the Notice of Appeal were not outside the decision of the Court below and so validly appealable. The said grounds are competent grounds as they relate and challenged the decision subject of this appeal. See C. C. B. v. Ekperi (2007) 3 NWLR (Pt.1022) 493.

The Preliminary objection clearly lacking in merit for the reasons above advanced, I hereby dismiss it.

MAIN APPEAL:

I shall utilise the three issues as simply crafted by the

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respondents which are apt and encapsulate the questions equally raised by the appellant.

ISSUES (i) (iii).

(i) Whether the Lower Court was right to have affirmed the decision of the trial Court to assume jurisdiction on the claim before it arising out of a banker-customer relationship.

(ii) Whether the Lower Court was correct in its resolution of the issue of cause of action, having considered the entire circumstances and facts of the case.

(iii) Did the decision of either of the two Lower Courts breach appellant’s right to fair hearing.

Mr. G. C. Duru of counsel for the appellant submitted that the appeal raises the issue whether the Federal High Court has jurisdiction over matters predicated on a simple contract in furtherance of which a plaintiff had sought specific performance as apparent in the instant claim presented before the trial Court. That the decision of the Court below that the respondents’ statement of claim did not disclose any fact based on simple contract was a wrong decision.

That the suit in this instance which subject matter and reliefs are predicated on the enforcement or otherwise of

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a simple contract is within the jurisdictional domain of the State High Court. He cited Galadima v Tambai (2000) 11 NWLR (Pt.677) 1; NV Scheep v. Araz (2000) 15 NWLR (Pt.691) 662 at 668; Oshoboja v. Amuda (1992) NWLR (Pt.250) 690; Section 272 of the 1999 Constitution (as amended) (CFRN for short); Section 251 (i) (g) of CFRN 1999 etc.

That jurisdiction will and can only be determined by the subject matter of the suit and in this instance the pleadings have showcased the absence of jurisdiction in the Federal High Court and the correct forum is the State High Court and so the suit was liable to be struck out. He cited Cookey v Fombo (2005) 15 NWLR (Pt.947) 182.

That this Court should invoke its powers under Section 22 of the Supreme Court Act and determine the issue of cause of action in reliance on the documents pleaded and attached to the respondents’ statement of claim. He referred to Order 8 Rule 12 (1) and (2) of the Supreme Court Rules (as amended in 1999); Egharevba v. Osagie (2009) 18 NWLR (Pt.1173) 299.

Learned counsel for the appellant raised the fact of a lack of fair hearing visited on it by the two Courts below for

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which the interference and redress by the Supreme Court is a necessity. He cited Deduwa & Ors v Okorodudu (1976) NSCC Vol. 10; Uzuda v. Ebigah (2009) All FWLR (Pt.493) 1224 at 1247; Sha v. Kwan (2000) 8 NWLR (Pt.670) 685 at 708; Mohammed v. Kano N. A. (1968) 1 All NLR 424.

Learned counsel for the respondents contended that the appeal is devoid of merit as the relationship between the parties is that of banker-customer on which there is concurrence of jurisdiction between the Federal High Court and State High Court. He cited PDP v INEC (2012) 7 NWLR (Pt.1300) 538; Diamond Bank Ltd v. PIC Ltd (2009) 18 NWLR (Pt.1172) 67 at 88; Adeyemi v. Opeyori (1976) 9 10 SC 31 etc.

That the two Courts below were correct to hold that the address of learned counsel in reply on points of law cannot take the place of evidence or pleadings of a party. He cited numerous judicial decisions.

On the issue of a denial of fair hearing learned counsel for the respondents stated that the appellant cannot so complain since the motion in issue was initiated by the respondents which withdrew same and the application consequently dismissed by the Court and so appellant

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cannot be heard to complain that its fair hearing right was breached. He cited Mohammed v. Abdulaziz (2009) All FWLR (Pt.465) 1684 at 1701; Mobil Oil (Nig) Unlimited v. LASEPA (2002) 18 NWLR (Pt.798) 1 etc.

In a nutshell, the view point of the appellant is anchored on the position that the Court below operated in error in affirming the decision of the trial Court that it had jurisdiction and the suit not based on a “simple contract”. The appellant contends further that the issue on ground is not a matter of banker/customer relationship and so the State High Court lacked the vires to entertain the suit and the Court below went into the same error in confirming as right what the trial Court did and so bringing into effect the factors upon which an interference by the Supreme Court is called in to right the wrong.

Respondents taking a contrary stance posit that this Court is well advised by the facts and circumstances of the case to stay its hand of interference as the concurrent findings of the two Courts below are well founded in a banker/customer relationship which vests jurisdiction in a State High Court as the instant situation and so was well

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positioned to consider the issues before it and deliver a judgment and the Court of Appeal was right to say so and entertain an appeal emanating from that trial High Court.

Snippets of the said judgment of the Court below will shed some light into the reasoning and I quote them as follows:-

“As earlier stated, when the issue of jurisdiction to entertain a suit comes to play, the law insists that recourse must be had to the statement of claim and reliefs sought by the plaintiffs. See PDP v Sylva supra and A. G. Kwara State v Olawale supra….

I have carefully perused the said statement of claim with particular reference to paragraphs 6 to 24 as well as the reliefs sought in paragraph 45 and the only rational conclusion, I can draw therefrom is that there is a banker/customer relationship between the respondents and the appellant. It did not disclose any fact based on simple contract…” (Emphasis supplied).

To set the stage in this deliberation is to go into the constitutional provisions of Section 251 (1) (d) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) CFRN for short and thus:-

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251 (1) – Notwithstanding anything to the contrary 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 cases and matters –

(a)…;

(b)…;

(c)…’

(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 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.

From the provisions of Section 251 (1) (d) CFRN, the Federal High Court is vested with exclusive jurisdiction in relation to issues pertaining to banks, banking and other financial institutions but when the dispute relates to banker/customer relationship, the jurisdiction is not

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exclusive and the said jurisdiction is concurrently shared with the Federal High Court and the State High Courts and that of the Federal capital Territory. The interpretation clearing the grey area on the confusion that would have otherwise arisen is seen in the case of NDIC v. Okem Ent. Ltd (2004) 10 NWLR (Pt.680) 107 at 221 where the Supreme Court stated thus:-

“Section 251 (1) (d) does not confer exclusive jurisdiction in disputes arising between individual customer and the bank on the State High Court. All it did is to remove the exclusivity in dealing with those kinds of disputes from the Federal High Court; which means that the High Court of a State by virtue of Section 272 (1) of the 1999 Constitution also shares the jurisdiction with the Federal High Court.”

The Court below had held thus:-

“In other words, where a person, whether natural or corporate entity, enters into any banking transaction or relationship with a bank and dispute or controversy arises therefrom, any of the aggrieved parties has the option to seek redress in either the Federal High Court or the High Court of the State.”

In this case, the Court below stated further thus:-

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“I have carefully perused the said statement of claim with particular reference to paragraphs 5 – 24 as well as the reliefs sought in paragraph 45 and the only rational conclusion I can draw therefrom is that there is a banker-customer relationship between the respondents and the appellant.

….I can draw therefrom is that there is a banker customer relationship between the respondents and the appellant.”

I shall have recourse to some parts of the Statement of Claim for elucidation in the relevant paragraphs, thus:-

11. Further to paragraph (10) supra, after a series of discussions, the plaintiffs and defendant agreed to and scheduled a meeting for July 22, 2013 so as to advance the course of the on-going negotiations and particularly to agree and reach conclusive terms of negotiations.
12. The said meeting of July 22, 2013 was held at 6b, Mekunwen Street, Ikoyi and since the top level decision makers of the plaintiffs and the defendant were present in person, the total indebtedness of the plaintiffs was agreed to be an ascertainable figure of N3,500,000,000.00.
13. The terms of the said payment was agreed at that meeting to be immediate payment of the sum of

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N500,000,000.00 and payment of the balance before the exit of the Central bank of Nigeria (CBN’s examiners from the defendant).

15. By a letter dated 22, 2013 in compliance with the agreement reached at the meeting of July 22, 2013, Honeywell Group Limited notified the defendant that the immediate payment of the sum of N500,000,000.00 has been made as agreed.

At paragraph 45 of the plaintiffs now respondents’ statement of claim are the reliefs sought before the trial Court which are:-

a. A declaration that the plaintiffs as customers), by the agreement reached at the meetings of July 22, 2013 and December 12, 2013 with the defendant (as banker to the plaintiffs) are not indebted to the defendant in any amount apart from the agreed sum of N3,500,000,000.00 (Three Billion, Five Hundred Million Naira) as full and final settlement/liquidation of their indebtedness.

b. A declaration that the plaintiffs, having paid the sum of N3,500,000,000.00 to the defendant as full and final liquidation of their indebtedness as agreed, the plaintiffs have performed all their repayment obligations in respect of the said indebtedness.

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A declaration that having fully performed their repayment obligations by the payment of the sum of N3,500,000,000.00 to the defendant, the Plaintiffs are entitled to;

iv. The issuance of letters of discharge from indebtedness from the defendant.

v. A release of all the security(ies) for which the already liquidated indebtedness was collateralized.

vi. An update of the status of the plaintiffs account on the Central Bank of Nigeria’s Credit Risk Management System (CRMS) portal from non-performing loan accounts.

d. An order mandating the defendant to forthwith issue Letters of Discharge from indebtedness to the Plaintiffs.

e. An order mandating the defendant to release to the plaintiffs, all the security(ies) and collateral used to secure the already liquidated indebtedness to the defendant.

f. An order mandating the defendant to update the status of the plaintiffs’ accounts on the Central Bank of Nigeria’s CRMS portal from non-performing loan accounts.

g. An order of perpetual injunction restraining the defendant, either by itself, its directors, employees, privies, assignees, successors-in-title or anybody

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acting on their behalf, from making any representation in any form, to and/or implying that any of the plaintiffs or their directors, parent company and/or subsidiaries is/are indebted to it in any way.

h. Cost of this action assessed at N100,000,000.00.

The learned trial judge in considering the averments in the plaintiffs pleadings came to the following decision thus:-

“The law is settled that it is the plaintiffs’ claim that vests jurisdiction in a Court of law. See Adeyemi v Opeyori (1976) 9 -10 SC 31 at 51. Thus, in assuming jurisdiction, the Court would look at the claim of the plaintiffs as endorsed on the writ and the statement of claim.

In paragraph 24 of the statement of claim it is that the facts culminating in the plaintiffs’ case relate to the defendant’s refusal to update the status of the plaintiffs on the CSN (sic) CRMS portal from a non-performing loan status… The law is also settled that reliefs sought by a plaintiff’s vests jurisdiction on the Court…. the question that naturally follows then is: can the State High Court grant reliefs 45 (c) (vi) and (f) contained in the statement of claim. The obvious answer is in the negative.

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It is therefore my view that all the issues before this Court and reliefs sought can only be granted by the Federal High Court. The law is trite that appropriate Court to approach is the Court that has the all-encompassing jurisdiction to countenance all the claims before it.” (Emphasis supplied).

On appeal, the Court below stated as follows:-

“I have carefully perused the statement of claim with particular reference to paragraphs 6 to 24 as well as the reliefs sought in paragraph 45 and the only conclusion, I can draw is that there is a banker-customer relationship between the respondents and the appellant. It did not disclose any fact based on simple contract and whatever was done by OBA OTUDEKO as chairman of Honeywell Group Limited was strictly for and on behalf of the respondents and there is no question of Novation or transfer of liability from the respondents to the Honeywell Group as alluded by the appellant. The said statement of claim also shows that the respondents have a genuine cause of action that entitles them to file the suit.”

It is to be noted though the situation has become trite that

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it is the claim of a plaintiff that vests jurisdiction in a Court. See Adeyemi v Opeyori (1976) 9 – 10 SC 31. That is the basis on which the trial Court held thus:-

“Whilst the defendant is not contesting the fact that it acquired all the rights and liabilities accruable to Oceanic Bank Plc, it then becomes lucid that the banker-customer relationship which existed between the plaintiffs and Oceanic Bank transposes to a relationship between the defendants (sic) and the defendant. See paragraph 9 of the statement of claim”‘

As a guide I shall cite the case of Bank of the North v. Yau (2001) 10 NWLR (Pt.721) 408 at 438 paras D E, this Court per Ayoola JSC held thus:-

“In the course of carrying on business of banking, a bank enters into several contractual relationships and performs various roles. It is important in an action between bank and customer to be clear which of the several contractual relationships forms or form the basis of the action. In this case, it is pertinent to note only four of these possible relationships, namely: (i) The relationship of creditor and debtor that arises in regard to the customer’s funds in the hands of the bank; (ii) The relationship of

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creditor and debtor that arises when the bank loans money to the customer or allows him to overdraw on this accounts; (iii) The relationship that arises from the role of the bank as a collecting bank of cheques drawn or other banks or branches of the same bank by a third person; and (iv) the possible role of the bank as a holder for value of a negotiable instrument.” (Underline mine for emphasis).

The said meeting was also specifically referenced in relief 45 (a) of the statement of claim thus:-

“A declaration that the plaintiffs (as customers), by the agreement reached at the meetings of July 22, 2013 and December 12, 2013 with the defendant (as banker to the plaintiffs) are not indebted to the defendant in any amount apart from the agreed sum of N3,500,000,000.00 (Three Billion, Five Hundred Million Naira) as full and final settlement/liquidation of their indebtedness.”

Evidently clear from what has been showcased above is that what is available as the relationship between the parties is that of banker/customer, a situation of interaction emanating from a banking transaction where both parties assumed the role of creditor and debtor

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however the colouring presentation may seem to be. See Bank of the North v Yau (supra).

Therefore the meeting between the parties on the 22nd of July, 2013 was in the capacities of customers and bankers respectively for the resolution of the discharging of obligations arising from that relationship of debtors and creditors.

It follows that the objection raised by the appellant in the Court below would be headed for failure since that meeting of 22nd July, 2013 was held in the clear purview of the banker/customer relationship. The decision of the Court below in that regard being not appealed against has the matter settled for all time. I shall place reliance on the case of Akere v Governor of Oyo State (2012) 12 NWLR (Pt.1314) 240 at 278 wherein this Court held thus:-

“In the circumstance, it is very clear and as settled in a long line of cases by this Court that a decision of a Court/tribunal not appealed against is deemed accepted and remains binding on the parties and all and sundry.”

See also Kraus Thompson Organisation Ltd v Unical (2004) 9 NWLR (Pt.879) 631 at 653; A.G, Anambra State v A. G. Federation (2005) 9 NWLR (Pt.931) 572 at 615.<br< p=””

</br<

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The point has to be made that the learned counsel for the appellant’s submission cannot take the place of the pleadings before the Court nor the evidence proffered. Therefore the findings of the trial Court of Appeal that what was at stake was based on a banker/customer relationship and upon which the trial High Court was empowered to entertain not having been appealed against, learned counsel now bringing up the same issue at this address stage has in my humble view laboured in vain. See Obasuyi v Business Ventures Ltd (2000) 5 NWLR (Pt.558) 568 at 690; Akinbobola v Plisson Fisko (1991) 1 NWLR (Pt.167) 270 at 287.

Indeed the Lower Court could only have decided the issue of cause of action on the same basis as the trial Court’s decision in reiteration that a reply address of counsel can neither be a re-argument nor an avenue to raise fresh not contained in the initial address or what was outside the pleadings of the plaintiff. Also to be brought in is the fact that the finding of the trial Court discountenancing the objection of the appellant on the cause of action as it relates to third party negotiations was not appealed in the

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court below and so remains binding and cannot be reopened at this stage either without a ground of appeal so holding it. See Akere v. Governor of Oyo State (supra) and A. G. Anambra State v A. G. Federation (supra); Agbakoba v INEC (2008) 18 NWLR (Pt.1119) 489; KT & Industries Plc v The Tug Boat M/V Japaul B. (2011) 9 NWLR (Pt.1251) 13 at 151 – 152.

On the third issue on whether or not the right to fair hearing of the appellant was breached. The stance of the appellant on this question stems from a motion filed by the respondents on 5th November, 2015 and when it was called up for hearing on 11th December, 2015 which said motion was withdrawn and the appellant opposed the said withdrawal and the Court of trial allowed the withdrawal and dismissed the application and no appeal arose therefrom. The implication of there being no appeal in that regard is that the order of dismissal remained a final determination and end of all rights of a party arising from the dismissed process. I refer to Mohammed v. Abdulaziz (2009) All FWLR (Pt.465) 1684 at 1701.

It has been a strange encounter that the respondents who initiated the process is not complaining but appellant not

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only is complaining and raising the issue of a breach of fair hearing but is doing so with counsel using very unsavoury and abusive language. See Mobil Oil (Nig.) Unlimited v LASEPA (2002) 18 NWLR (Pt.798) 1.

The anchor of the appellant on the infraction of its right to fair hearing was found unsustainable by the Court of Appeal which appellant took umbrage against stating that its issue on the infringement of its right to fair hearing was left unattended by the Court below. Going through the length and breadth of the proceedings the position of the appellant in this regard is really unsubstantiated and therefore cannot be sustained and so descending into the arena of verbal abuse on the Court would not do any good either in the interest of the appellant nor the adjudicatory process whereby the integrity of the Court or its officers are to be held sacroscent especially when viewed through the lens of the Court exercising the discretion available to it judiciously and judicially. It is on that note that I have no difficulty in going along the trend and practice of this Court of non – interference with the concurrent decisions of the

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two Lower Courts which have been reached without a miscarriage of justice or the non application of substantive or procedural law. The two Courts were on firm ground in the dispensation of justice with the materials available to them. See Idufueko v Pfizer Products Ltd (2014) 1 NWLR (Pt.1420) 96 at 113.

In the final analysis all three issues are resolved against the Appellant from the foregoing. I award the sum of N1,000,000.00 costs to the Respondents to be paid by the Appellant.

Appeal dismissed as I affirm the decision of the Court of Appeal in its upholding the Ruling of the trial High Court.

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SC.406/2016