Merill Guaranty Savings & Loans Limited & Anor V. Worldgate Building Society Limited (2012)
LAWGLOBAL HUB Lead Judgment Report
M. MUKHTAR, J.S.C.
In an action instituted in the High Court, Lagos State, the respondent who was then the plaintiff claimed against the appellants jointly and severally the following reliefs:-
“(i) The sum of N553,013.69 being the principal sum and interest outstanding on the amount placed in the 1st Defendant’s high yield certificate as at 31st December, 1993, which sum the Defendant has refused and/or neglected to pay despite repeated demands.
(ii) Interest on the said sum of N553,013.69 at the rate of 21% per annum from 1st January, 1994, until the whole amount is totally liquidated.”
Briefly, the plaintiff’s case is that it is a limited liability company, while the 1st defendant is a finance company and the 2nd defendant is its Managing Director, who executed a personal guarantee in favour of the plaintiff on its investment of N500,000 on the defendants’ merit high yield certificate at an interest rate of 8.5% per month for 90 days to fall due on 24th August 1993, and the defendant issued a post-dated Guarantee Trust Bank cheque to be presented on 24th August 1993. The defendant however failed to redeem the plaintiff’s investment despite several entreaties, hence it instituted this action against the defendants. After filing the plaintiff’s statement of claim, the defendant filed a notice of preliminary objection, the ground of which reads the following:-
“The Lagos State Court lacks jurisdiction to entertain this suit by virtue of the provision of Section 230(1)(d) of the Constitution of the Federal Republic of Nigeria 1979 as amended by Section 1 (3) of the Constitution of the Federal Republic of Nigeria 1979 as amended by Section 1 (3) of the Constitution (Suspension and Modification) Decree No. 107 of 1993.”
In an affidavit in support of the preliminary objection, the deponent, Olufunmilola Osisanya deposed to the following facts:-
“3. That the Plaintiffs instituted this action at the Lagos High Court on 8th May 1995 claiming the total sum of N553,013.69 (five hundred and fifty three thousand and thirteen Naira sixty nine kobo) arising from a short term loan granted by the Plaintiff to the 1st Defendant.
- That the cause of action in this suit arose as a result of the conduct of the business of the 1st Defendant as a financial institution.
- That there is no banker-customer relationship between the plaintiff and the 1st Defendant.
- That I verily believe that the Honourable court lacks jurisdiction to entertain this suit by virtue of the provisions of the constitution (suspension and Modification) Decree No. 107 of 1993.
- That it is in the interest of justice that this suit be dismissed.”
The learned trial judge in his ruling upheld the objection and struck out the plaintiff’s action. Dissatisfied, the plaintiff appealed to the court of Appeal, Lagos Division where Ogebe JCA (as he then was) in the lead judgment of the court allowed the appeal thus:-
“Consequently, I allow this appeal and set aside the ruling of the trial court. In its place I dismiss the respondent’s preliminary objection before the court”.
Aggrieved by the decision, the defendants appealed to this court on four grounds of appeal. In pursuance to the rules of this court the learned counsel for the parties exchanged briefs of argument, which were adopted at the hearing of the appeal. In its brief of argument, the appellant raised the following lone issue for determination of the appeal:-
“Whether the Lagos High Court had jurisdiction to determine Civil Causes and matters arising from financial institutions (such as between the Appellants and Respondent) not being a dispute between an individual customer and his bank, taking cognizance of the provisions of Section 230(1)(d) of the Constitution of the Federal Republic of Nigeria 1979 as amended by section 1(3) of the Constitution (suspension and Modification) Decree no.107 of 1993.”In its brief of argument, the respondent also formulated one issue for determination which is, whether the High Court of Lagos State has jurisdiction to entertain the plaintiff’s case a formulated in the Statement of claim.
In arguing its sole issue, learned counsel for the appellants referred to paragraphs 1 and 2 of the plaintiffs statement of claim which he argued show that the respondent and 1st appellant are finance and investment companies whose activities fall within the category of ‘other financial institutions’ regulated by part 1 i.e Sections 56 – 59 of the Banks and Other Financial Institutions Decree No. 25 of 1991. The finding of the Court of Appeal which I will reproduce hereunder was attacked. It reads as follows:
“I must begin the resolution of the sole issue of this appeal by saying that there is nothing on the face of the claim to show that the parties are financial institutions. To determine whether or not they are financial institutions of incorporation and registration as financial institutions would require evidence showing their documents of incorporation and registration as financial institutions. There was nothing before the trial court to establish this ……..”
The learned counsel contended that the above position is erroneous as it is trite law that facts that are admitted need not be proved. He referred to Section 75 of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990, Farms Ltd. v. NAL Merchant Bank Ltd 1994 3 NWLR part 331 page 241, and Cecilia Ihuoma Nwankwo v. Emmanuel Nwankwo 1995 5 NWLR part 394 page 153. The following finding of the court below was also attacked. It reads:-
“Even if they are financial institutions I would hold that they are in the same class with banks and proviso to Section 230(1)(d) of the Constitution (Suspension and Modification) Decree 107 of 1993, applies to this dispute.”
The learned counsel has submitted that the provision of section 230(1)(d) of the Constitution (Suspension and Modification) Decree No.107 of 1993 (Decree 107) confers exclusive jurisdiction on the Federal High Court to try civil causes and matter connected with and pertaining to banks, banking and other financial institutions including actions between one bank and another but excluding bank to customer transactions. The said Section 230 of the Constitution supra reads as follows:-
Notwithstanding anything to the contrary contained in the constitution and 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:-
“a. …
b. …
c. …
d. Banking, banks, other financial institutions including any action between one bank and other, 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.”
The learned counsel has further submitted that the ordinary meaning of the above provision when applied to the facts of this case is inter alia that civil causes involving financial institutions shall fall within the exclusive jurisdiction of the Federal High Court. According to him the provision is clear and unambiguous and effect must be given to it without resorting to any intrinsic or external aid. Reliance was placed on the cases of Awolowo v. Shagari 1979 6 – 9 SC. 51, and Owena Bank (Nig.) PLC v. Nigerian Stock Exchange Ltd 1997 8 NWLR Pt.515 page 1. The learned counsel added that ‘Bank and other Financial Institution Decree supra has adequately defined ‘banking business” and ‘other financial institutions’.
The learned counsel for the respondent commenced its argument by stating that jurisdiction is determined by the claim as endorsed on the writ of summons and elaborated in the statement of claim, and so these have to be examined, (in which case paragraphs (1) (2) and (3) of the statement of claim in the case on hand). See U.B.A. PLC v. BTL Industries Ltd. 2006 19 NWLR part 1013 page 61, Adeyemi v. Opeyemi 1976 1 NMLR 149, Tukur v. Government of Gongola State 1989 4 NWLR part 117 page 517, and United Bank for Africa PLC v. BTL Industries Ltd. 2006 19 NWLR part 1013 page 61. I will reproduce the said pleadings hereunder. They read:-
“1. The Plaintiff is at all times material to this action a limited liability company carrying on the business of Finance and Investment and a customer of the 1st defendant.
- The 1st Defendant is at all times material to this suit a Finance and Investment company with head office at the Sugar House, 174B Murtala Mohammed Way, Ebute Metta, Lagos State.
- The 2nd Defendant is at all times material to this suit, the Managing Director of the 1st Defendant.”
The learned counsel has submitted that the facts pleaded in the statement of claim is not and cannot be stretched so far as to bring the transaction within the exclusive jurisdiction of the Federal High Court. According to learned counsel, since the judgment of the Court of Appeal, this court has had occasion to revisit the interpretation and effect of section 230 of the 1979 constitution which is in pari material with section 251(1) of the 1999 Constitution, except that the phrase ‘araising from’ used in the former was replaced with ‘connected with or pertaining to’ in the later. He cited the cases of Nigerian Deposit Insurance Corporation (liquidator of Allied Bank of Nigeria PLC) v. Okein Enterprises Ltd & Ors. 2004 10 NWLR part 880 page 107, and Integrated Timber and Plywood products Ltd v. Union Bank Nigeria PLC 2006 12 NWLR part 995 page 483.
The argument of both parties are predicated on the provision of Section 230 of the 1979 Constitution supra, and what is germaine is the interpretation of the provision which I have already reproduced in the earlier part of this judgment. The particular provision, which is salient and relevant to this discussion is subsection (d) of the said Section 230(1) and its proviso.
By virtue of this provision, the suits referred to therein are cases that are purely pertaining to banks, banking and other financial institutions.
Contrary to the argument of the appellants, the claims and the descriptions of the parties do not come within the ambit of the interpretation of the provision. A careful perusal of the averments supra does not suggest the parties are ‘financial institutions’, notwithstanding that they portray the parties as being involved with finance and investment. The mere use of the word ‘finance’ does not perform an abracadabra to translate the parties to ‘financial institution’, for they must tie actually identified as such. The claim portrays the parties as companies dealing with investments, and when one looks at the other parts of the pleadings, it will be clear that the cause of action emanated from a simple contract. The following paragraphs illustrate this fact:-
“4. On 26th May 1993 the Plaintiff invested the sum of N500,000 with the Defendant High Yield Certificate.
- The 2nd Defendant executed a personal guarantee in favour of the Plaintiff as a result of its investment in the 1st Defendant High Yield Certificate.
- The facility was expressed (sic) to last for 90 days and as such it was to fall due on 24th August 1993.
- Interest as agreed between the parties was 8.5ft flat per month.
- To secure this facility the Defendant issued it post dated Guarantee Trust bank’s cheque to be presented on the 24th August 1993.
- Till date despite several entreaties to the defendant to redeem the plaintiff’s investment, it has either neglected or refused to pay up since maturity on 24th August 1993.”
It is very clear from the above averments that what transpired between the parties was a contractual obligation, which the appellants had refused to meet, and from which a liability accrued on the part of the appellants. Nothing in the pleadings signifies that any of the parties is a bank to fall within the ambit of the provision of section 230(1)(d) of the constitution of Nigeria of 1979, which is in pari material with the provision of the 1999 constitution. Besides, the proviso to the said section 230 of the 1979 constitution supra further throws light to the limitation of the provision.
That is to say that even of one of the parties is a bank, an individual customer can seek remedy in a State High Court. The provisions is Banks and other Financial Institutions Decree 1991, which the learned counsel for the appellants made heavy weather of, in particular Section 61, under which “other financial institutions’ is defined does not to my mind detract from the interpretation given to the essence of the provisions of the Constitution of Nigeria, which overrides any other law. These provisions of the Constitution, which have already been reproduced are straight forward and unambiguous, and so should be given their ordinary and plain meaning. It is a cardinal principle of law that in the course of interpreting a statute a court must consider the words used in order to discover their ordinary meaning, and the intention of the legislature. Where there is no ambiguity in the words used, then it behoves the court to give it its ordinary meaning as it relates to the subject matter. See Salami v. Chairman L.E.D.B. 1989 5 NWLR part 123 page 539, Aqua Ltd v. Ondo State Sports Council 1988 4 NWLR part 91 page 355, and A. G. Bendel State v. Agbofodoh 1999 2 NWLR part 592 pages 476.
The intention of the legislature must also be explored. Authorities abound on this principle of interpretation. Lord Reid in the case of Kennedy v. Spratt 1972 A.C. page 83 at page 89 had this to say:-
“We are as always trying to find the intention of the legislature.
Where, taking into account the surrounding circumstances and the likely consequences of the various possible construction, there can be any doubt at all about the intention, we must where penalties are involved require that the intention shall clearly appear from the words of the enactment construed in light of those matters. But if we can say that those matters show that a particular result must certainly have been intended, we would I think, be stultifying the underlying principle if we required more than that the statutory provisions are reasonably capable of an interpretation carrying out that intention”.
See also the cases of Major and St. Mellons Rural District Council v. Newport Corporation 1952 A. C. page 189, and Assam Railways and Trading Co. Ltd. v. Inland Revenue Commissioners 1935 A.C. 445.
In the light of the above explosions of law I am of the view that the learned trial judge was in error when in his judgment he held as follows:-
“With regard to the second issue, the main provision of Section 230 (1) (d) specifically mentions “banks, other financial institutions’, but the proviso omits ‘other financial institutions’. As the omission has in no way created any ambiguity, it is not for the court to extend the scope of the proviso. Therefore the proviso does not apply to other financial institution.”
My opinion is that the learned trial judge was economical with the correct interpretation of the said provision of Section 230 (1) (d) of the Constitution supra, for if he had given the rules of construction of statutes and interpretation the attention it deserves in the course of interpreting the provision he wouldn’t have found as hp did above. Again, in his judgment, the learned trial judge made the following observation and finding in his judgment:-
“With regard to the first issue, paragraph 1 of the statement of claims states that the plaintiff is at all times material to this action a limited liability company carrying on the business of finance and investment and a customer of the 1st defendant also a Finance and Investment Company. The defendants have not disputed that averment and so I accept that the plaintiff and the 1st defendant are financial institutions.”
How, if I may ask did he come to the above conclusion, when no statement of defence to counter or admit the averment in the statement of claim was filed Perhaps, he was influenced by paragraph (4) of the affidavit in support of the notice of preliminary objection, already reproduced above.
But even then the above deposition does not in any way infer that the defendants were in tandem with the plaintiff on the nature or description of the plaintiff and the 1st defendant. The fact that the plaintiff averred that the 1st defendant is a Finance and Investment Company does not connote that it is a Financial institution within the con of the provision of section 230 (1) (d) of the Constitution supra.
I will at this juncture re-echoe the words of Ogundare JSC (of blessed memory), in the case of Federal Mortgage Bank of Nigeria v. Nigeria Deposit Insurance Corporation I999 2 NWLR part 591 page 333, a case that is similar to the present one. In that case, the learned jurist in treating and interpreting the provision of Section 230(1) (d) and its proviso had the following to say:-
“To say that where there is a dispute between two banks, the forum for the resolution of the dispute is the Federal High Court is to read Section 230(1)(d) what is not there. A lot depends on the nature of the transaction between the two banks. The facts show that plaintiff, like any other customer placed a short-term deposit with the defendant on agreed interest. After some roll-overs, plaintiff sought to retrieve its deposit and interest but defendant defaulted. In the absence of any evidence to the contrary about the custom in the industry I must hold that a simple customer/banker relationship which the proviso in Section 230 (1)(d) exempts from the exclusive jurisdiction of the Federal High Court.”
I am fortified by the above finding, and relates it to the instant case. For the foregoing reasoning i am satisfied that this case falls within the ambit of the proviso to section 230(1)(d) supra, and so is not one of those cases in which the federal Court has exclusive jurisdiction. The High Court of Lagos State has jurisdiction to hear and determine the case.
In this wise, I affirm the judgment of the court of appeal, Lagos Division, which ordered the remittal of the case to the Chief Judge of Lagos State for its re-assignment. I also here order that the case be so re-assigned. The appeal fails for it lacks merit I hereby dismiss it. I hereby order costs at N50,000.00 in favour of the respondent, against the appellants.
SC.178/2005