IN THE COURT OF APPEAL

OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

ON FRIDAY THE 3RD DAY OF MAY, 2019


      APPEAL NO: CA/OW/250/2018

CITATION: CA (2019) 5 LLER 1

BEFORE THEIR LORDSHIPS: 

HON. JUSTICE R. C. AGBO, JCA (Presiding)

HON. JUSTICE ORJI-ABADUA, JCA

HON. JUSTICE RITA PEMU, JCA


BETWEEN:

1. ECOBANK NIG. PLC.

2. ELUWOLE GBENGA

(APPELLANTS)     

AND

1. TONIMAS (NIG.) LTD.

2. EZIOMA ONYEFORO

3. RUFUS RONO OPARA

(RESPONDENTS)


LEAD JUDGMENT DELIVERED BY AGBO, JCA


The 1st Respondent was the Plaintiff in Suit No. FHC/UW/CS/85/2010. The Plaintiff had purchased two bank drafts in the sum of N13,000,000.00 from 1st Bank of Nigeria Plc. in favour of Mr. HENRY Emenike Ezike. The money was payment to Mr. Ezike for the purchase of a piece of Land. The Plaintiff had handed the drafts over to the 4th Defendant to hand over same to Mr. Emenike. The 4th Defendant instead lodged the drafts in his account with the 1st Appellant using the 2nd and 3rd Defendants. The 1st Respondent at the Federal High Court claimed of the defendants as follows:-

“10   (i)     An Order compelling the Defendants to make restitution by refunding to the Plaintiff the value of the two         Bank Drafts totaling N13,000,000.00.

         (ii)    The sum of N100,000,000.00 being general damages for negligence arising from the Defendants banking malpractice.

         (iii)   The sum of N27,000,000.00 as general damages for conversion of the two Bank Drafts.”

At the end of trial, the trial court adjudged as follows:-

“1.    The 1st and 4th Defendants are liable to pay to the plaintiff the sum of N13,000,000,00 (Thirteen Million Naira) less N2,350,000.00 (Two Million, Three Hundred and Fifty Thousand Naira) being the remainder of the value of the two bank drafts.

  1. The 1st and 4th Defendants are liable to pay to the Plaintiff N20,000,000.00 (Twenty Million Naira) also as general damages.
  2. The liability of 1st and 4th Defendants to the Plaintiff are joint and several.
  3. No order as to costs.”

Dissatisfied with this judgment, the appellants filed the appeal. Their grounds of appeal are:-

“1. GROUND ONE: ERROR IN LAW

      The learned trial judge erred in law when he wrongly assumed jurisdiction and entertained Suit No. FHC/UM/CS/85/2010; despite the fact that he lacked the jurisdiction to entertain the said action.

  1. GROUND TWO: ERROR IN LAW:

      The learned trial judge erred in law when he foreclosed the 1st and 2nd defendants on the 14th day of February, 2018 and therefore failed to consider the 1st and 2nd Defendants’/Appellants’ motion for amendment dated the 8th day of November, 2017 and filed on the 29th day of November, 2017.

  1. GROUND THREE: ERROR IN LAW:

      The learned trial judge erred in law when he proceeded to write the judgment of the court in this suit without considering       the 1st and 2nd Defendants/Appellants motion to set aside the order of the Honourable Court made on the 14th day of February, 2018 foreclosing the 1st and 2nd Defendants/Appellants from defending this suit and only proceeded to consider and dismiss same when the pendency of the application was drawn to the attention of the trial court on the day of judgment.

  1. GROUND FOUR: ERROR IN LAW:

      The learned trial judge erred in law when he refused to grant the 1st and 2nd defendants’ application to set aside the order of the Honourable Court made on the 14th day of February, 2018 foreclosing the 1st and 2nd Defendants/Appellants from defending this suit and only proceeded to enter judgment in favour of the claimant.

  1. GROUND FIVE: ERROR IN LAW:

      The learned trial judge erred in law when he awarded damages to the claimant to the tune of N20,000,000.00 (Twenty Million Naira), when the principal claim, which was equally granted was the sum of N13,000,000.00 (Thirteen Million Naira), despite the fact that no such damages was proved by the claimant.”

From these grounds the appellants in their brief of argument distilled their issues for determination to writ:

“1.        Whether the learned trial judge had the jurisdiction to entertain the action in Suit No. FHC/UM/CS/85/2010 as constituted.

  1. Whether the learned trial judge was at liberty not to hear the appellants’ motion on notice dated 8th November, 2017 and on the 29th day of November, 2017.
  2. Whether the learned trial court did not deny the appellants of the right to be heard when he refused to grant the appellants’ application dated 16th day of February, 2018 and filed on the 20thday of February, 2018.
  3. Whether the award of N20,000,000.00 (Twenty Million Naira) general damages by the trial judge in favour of the Plaintiff/1st Respondent is legally justifiable in view of the circumstances of the case.”

The first issue raised by the appellant was a challenge to the jurisdiction of the Federal High Court to entertain the suit. This challenge is founded on a warped interpretation of S.251 (i) (d) of the Constitution of the Federal Republic of Nigeria as amended. The section reads thus:

“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as maybe 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-

(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, letter 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 his bank. 

The proviso certainly does not apply to the transaction in this case. In fact the 1st Respondent in his statement of claim paragraph 3 made it clear that the dispute between the parties is not founded on a banker customer relationship. The whole dispute is about the fraudulent dispossession of the 1st Respondent of his 13 Million Naira using the instrumentality of a bank and its staff. The Federal High Court clearly has the jurisdiction to entertain the suit.

I have difficulties placing appellants issues 2 and 3 especially as issues must have their foundation in the notice of appeal. I must note here that the appeal was filed on 29-3-18. The foreclosure on 18th February, 2018 was an interlocutory order. By S.14(1) of the Court of Appeal Act, the appellant must obtain leave to appeal against such interlocutory order. By S.24(2) of the Court of Appeal Act, such appeal or application for leave to appeal must be filed within 14 days from the date of the order. The record of appeal does not disclose any leave to appeal nor was the notice of appeal filed within 14 days. Any ground of appeal relating to the foreclosure order of 14th February, 2018 is incompetent.

The appellant is however on firmer grounds in relation to the refusal or failure of the trial court to hear his motion for amendment. When on 27-3-18 just before the delivery of the judgment counsel for the appellant sought to argue his motion for amendment filed on 29th November, 2017 the trial judge had this to say:

“Court:    The application is not ripe for hearing having not been served by the 1st and 2nd Defendants on the other parties. I shall therefore not hear the application as it is the duty of Counsel to make sure that processes he filed in the Court Registry are served on the other side. Even if I should hear the application it is already overtaken by events by the reason of my earlier ruling today and it is based on that I will not grant the application sought by the learned 1st and 2nd Defence Counsel.

                 I shall now deliver my judgment.

Court:      Judgment is delivered in open Court.”

The trial judge was clearly wrong. In Hedo (Nig.) Ltd. Vs. Clarisbrown International Ltd. (2012) LPELR 21171 (CA) Eko JCA (as he then was) stated emphatically that “Once the litigant has done all that is required of him by law to do to file a process…….whatever is left to be done remains the internal affairs of the Court.”

A Litigant in filing a process pays fees for service of the process. It becomes incumbent on the Court, not the litigant or his counsel, to serve the process through its Registry. In Mobil Producing (Nig.) Unlimited Vs. Monokpo (2003) LEPLR – 1986 (sc) the Supreme Court cited with approval the dictum of Tobi JCA in (as he then was) in Eriobuna Vs. Obiora where he said “A Court of law or a Tribunal has a legal duty in our adjectival law to hear any court process including a motion before it. The process may be downright stupid, unmeritorious or even an abuse of Court process. The Court must hear the party or parties and rule one way or the other. A Judge whether of a Court of law or Tribunal, has no jurisdiction to come to a conclusion by resorting to his own wisdom outside established due process that a motion cannot be heard because it has no merit. That does not lie in the mouth of a judge in our adversary system of adjudication” The Supreme Court went further to say:

“A refusal of a Court to hear a motion is a breach of the right to a fair hearing guaranteed under the Constitution and an essence of the audi altarem pertem rule of natural justice”

 It was wrong for the trial court to refuse to hear the appellants’ motion. On this ground I shall avoid the judgment of the trial Court. The said judgment delivered on 27-3-18 is hereby set aside. The Chief Judge of the Federal High Court is hereby ordered to transfer the case to another Judge for trial de novo.

 

 


Abadua, JCA: I agree.

  


 Pemu, JCA: I had read before now, the lead judgement just delivered by my Brother Raphael Chikwe Agbo, JCA. I agree with his reasoning and conclusion. I also allow the appeal, thereby setting aside the judgement of the Court below delivered on the 27th of March 2018. The matter shall be remitted to the Chief Judge of the Federal High Court for reassignment to another judge who shall hear same de novo.


 

Appearances:

Dr. C. O. Chijioke for the Appellant.