Equitorial Trust Bank Ltd V. Akkad Tanning Company Ltd. & Ors (2008)

LawGlobal-Hub Lead Judgment Report

JOHN INYANG OKORO, J.C.A

This appeal is against the Ruling of the High Court of Kano State presided over by N. S. Umar J in which it refused and dismissed the Appellant’s application to strike out and/or dismiss the Respondents’ claim and with it the order of interlocutory injunction earlier granted by the said Court. The said Ruling was delivered on 10th April, 2003.

The Respondents, who were plaintiffs at the Court below had by a writ of summons dated 9th July, 2002 claimed against the Appellant who was the defendant as follows:-

1. An order directing a thorough reconciliation of the 1st and 2nd plaintiffs’ account with the defendant by a reputable firm of Chartered Accountants to be appointed by the Court.
2. A declaration that the Defendant is not entitled to charge compound interest on the 1st and 2nd plaintiffs account contrary to the agreement of the parties.
3. An order setting aside all over charges either by way of interest, commission on turn over (COT) unauthorized dealing on the accounts and all other, unauthorized or unlawful and illegal transactions by whatever name so described by the defendant respecting the 1st and 2nd Plaintiffs’ said current Account as being illegal, unlawful, null and void.
4. A declaration that the Defendant cannot cause to be advertised, sell, eject, possess or realize in any manner the landed properties or exercise any powers at all conferred on it by virtue of the perfected deed of Legal Mortgage, Fixed or Floating Asset Debenture respecting the said properties or any property used to secure the transaction between the plaintiffs and the Defendant until the due determination of this suit.
5. An order of perpetual injunction restraining the Defendant either by itself, agents, servants, assigns, and privies or by whatsoever name called from doing any or all of the following:

(a) From taking any steps and / or actions that are capable of embarrassing, harassing, molesting, ridiculing and / or disorganizing any or all the plaintiffs in their suit or any of their staff, agents, representatives etc on account of the disputed accounts between the plaintiffs and Defendant.

6. From Publishing to any person(s) natural or corporate including public and private media authorities etc any allegation of indebtedness by the plaintiffs to the defendant respecting the disputed accounts between the 1st and 2nd Plaintiffs and defendant.
7. A declaration that the Defendants are in breach of their contractual relationship with the 1st and 2nd plaintiffs and a consequence of which the plaintiffs incurred damages.
8. General damages in the sum of N1 Billion for breach of contract, illegal debiting, and mental stress caused to the plaintiffs particularly the plaintiff.
9. Legal cost and the cost of filling and prosecuting this action.

On the same date, and pursuant to the above claims, the Respondents filled a motion ex – parte and on notice seeking among other things reliefs of injunctive orders from the Court to restrain the Appellant from enforcing or implementing any of the instruments executed by any of the Respondents in relation to the transaction the subject matter of this suit pending the determination of the main suit. The learned trial judge first granted the ex – parte motion on 11th July, 2002 and on 27th September, 2002 granted the motion on Notice.

On 13th February, 2003, the Appellant filed a motion on Notice asking the Court to strike out and/or dismiss the suit on the ground that the trial Court lacked jurisdiction. After hearing both parties on the application, the Court below on 10th April, 2003 refused and dismissed the application. Aggrieved by the ruling of the trial Court, the Appellant has appealed to this Court. Notice of appeal is dated 21st April, 2003 and filed on 24th April 2003 and contains three grounds of appeal out of which the Learned Senior Counsel for the Appellant has distilled three issues for determination as follows:-

1. Whether the trial Court was right to hold that it had jurisdiction to entertain the Respondents’ claim being one that in the main and in substance deals with the enforcement of rights under, debentures and legal mortgages. (Arising from Ground 1).
2. Whether the trial Court was right to grant orders of injunction ex – parte and interlocutory in respect of properties in Lagos, outside its jurisdiction. (Arising from ground 2).
3. Whether the trial Court was right to grant an injunction ex- parte or on notice against the exercise of the Appellants’ lawful and legitimate rights under the Deed of mortgage and personal Guarantee much moreso when the said orders or injunctions ex-parte or interlocutory were unrelated and unconnected with or to the claim before the Court and the reliefs sought, and were against persons not parties to the claim? (Arising from ground 3.)

It is however the contention of the Learned Counsel for the Respondents those two issues only are necessary for the determination of this appeal. The issues are:-

1. Whether the trial Court was right to hold that it had jurisdiction to entertain the Respondents’ claim against the Appellant.
2. Whether the trial Court was right to have granted orders of injunction ex-parte and on notice in respect of the Respondents claim against the Appellant.

It seems to me that the two issues formulated by the Respondents are more apt and lucid for the determination of this appeal and I intend to determine this appeal based on these two issues. This is much more so as the third issue of the appellant has imported matters which cannot be traced to any ground of appeal. For example the issue which relates to the grant “of injunction against persons who are not parties to the suit cannot be traced to ground 3 purportedly alluded to. It is trite that an issue must of necessity be formulated from one or more grounds of appeal. It cannot emanate from the blues. See Okpala & Anor V. Ibeme & Ors (1989) 2 N.W.L.R. (Pt. 102) 208. General Oil Ltd. V. Chief Ogunyade (1997) 4 N.W.L.R. (Pt. 501) 613. Moreso, where an issue contains matters which cannot be traced to any ground of appeal, such an issue is liable to be struck out. It is not the place of the Court to pick and choose. It follows also that arguments made in support of such issues are of no consequence. Accordingly, the 3rd issue in the appellant’s brief is hereby discountenanced. See Madumere V. Okafor (1996) 4

N.W.L.R. (Pt. 445) 637, Gaamstac Engineering Ltd. V.F.C.D.A. (1988) 4 N.W.L.R. (Pt. 88) 296.

On the first issue, the Learned silk for the Appellant submitted that an examination of the Respondents’ claim before the Lower Court reveals that it is one that in the main and in substance deals with the enforcement of rights under debentures and legal mortgages. That it is not simpliciter a dispute between an individual customer and his bank in respect of the transactions between them. Thus, that by virtue of Section 251 (1) (e) of the Constitution of the Federal Republic of Nigeria 1999, a debenture between the parties is a matter within the exclusive jurisdiction of the Federal High Court, and not the Kano State High Court. That issue of debentures and mortgages are ones arising from the operation of the Companies and Allied Matters Act, 1990 and that the suit as formulated is not just a dispute between an individual customer and his bank.

Furthermore, that claims 1, 2 and 3 are subsidiary, ancillary or incidental to the main claim to wit enforcement or non enforcement of rights under the debenture, personal Guarantees between the appellant and Respondents. He urged this Court to strike out the suit relying on these cases:-

Wema Bank PLC & Anor V. Chrisrock Laboratories & Ors (2002) 8 N.W.L.R. (Pt. 770) 614 at 631 – 633, Ceramic Manufacturers Nigeria PLC V. Nigeria Industrial Development Bank (1999) 11 N.W.L.R. (Pt. 627) 383, Dr. Achebe & Anor V. Chief Nwosu & Anor (2003) 7 N.W.L.R. (Pt. 818) 103, Ejike V. Afeadi (1998) 8 N.W.L.R. (p. 561) 322.

In his reply, the learned Counsel for the Respondents submitted that an ordinary look at the claims of the Respondents leaves no doubt the fact that the subject of dispute between the parties is reconciliation of account and for the Court to ascertain the extent of duty or liability if any upon the disputed accounts. That by sections 272 (1) and 251 (1) (d) of 1999 Constitution, the provisions thereof show that the State High Court has jurisdiction over matters that pertain to dispute between an individual customer and his bank as in this case. He referred to the case of Bronick Motors Ltd V. Wema Bank Ltd (1983) 6 S.C. 158 at 263 – 264, Bizee Bee Hotels Ltd V. Allied Bank (Nig) Ltd (1996) 8 N.W.L.R. (Pt. 405) 76, Nigeria Deposit Insurance Corporation V. Oken Enterprises Ltd & 1 Or. (2004) 18 N.S.C.Q.R. 42. Learned Counsel then urged, this Court to resolve this issue against the appellants.

It is now trite that issue of jurisdiction is a threshold issue and whenever it is raised, the Court must consider it first because where a Court has no jurisdiction, the whole proceedings become a nullity no matter how well conducted. See, Madukolu V. Nkemdilim (1962) 2 S.C.N.L.R., 341, Akeem V. University of Ibadan (2003) 10 N.W.L.R. (Pt. 829) 584, Ayman Enterprises Ltd V. Akume Ind. Ltd, (2003) 13 N.W.L.R. (Pt. 836) 22, F.R.N. V. Ifegwu (2003) 15 N.W.L.R. (Pt. 842) 113. Having said that, how does a Court determine whether it has jurisdiction or not? It is a cardinal principle of our jurisprudence that the jurisdiction of a Court is determined by the claim of the plaintiff before the Court. Thus it is the writ of summons and the statement of claim that determine the issue of jurisdiction of a Court. See Akinfolarin V. Akinnola (1994) 3 N.W.L.R. (Pt. 335) 659.