UNITED BANK FOR AFRICA PLC V DAVANDY FINANCE AND SECURITIES LTD & ANOR

UNITED BANK FOR AFRICA PLC V DAVANDY FINANCE AND SECURITIES LTD & ANOR


IN THE COURT OF APPEAL
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR

ON THURSDAY, 14TH MAY, 2015


Appeal No: CA/C/39/2011

CITATION:

Before Their Lordships:

CHIOMA EGONDU NWOSU-IHEME, JCA

ONYEKACHI AJA OTISI, JCA

PAUL OBI ELECHI, JCA


BETWEEN

UNITED BANK FOR AFRICA PLC
(APPELLANT)

AND

DAVANDY FINANCE AND SECURITIES LTD
MR. GODWTN EKONG (TRADING UNDER THE NAME AND STYLE OF USENEKONG & SONS ENTERPRISES)
(RESPONDENTS)


PRONOUNCEMENT


A. ACTION
1. Traverse – The implication of general traverse
Effect of a general traverse

…This is a general denial which in law amounts to an admission. Such general denial or traverse without more has been held not to amount to a denial but is deemed to be an admission. See First Bank of Nigeria Plc vs. T. S. A Industries Ltd. (2007) All FWLR (Pt. 352) 1719 at 1734. A general traverse like the one in this appeal is not enough to controvert material and important averments in pleadings particularly where the claim is one in debt or liquidated demand in money as in this case. As the claim by the 1st Respondent that the Appellant owed him the sum of N7, 259, 232.00 including other ancillary reliefs had not been denied expressly or by implication by the Appellant, the allegation must be deemed to be indirectly admitted. See Meridien Trade Corporation Ltd. vs. Metal Construction (WA) Ltd. (1998) LPELR 1862 (SC). This is why the Law requires that essential and material allegation in a Plaintiffs pleading should not be reacted to in a statement of defence by a general denial or traverse of averments in the Plaintiffs statement of claim that can meaningfully give rise to an issue or give rise to an issue in a claim by the Plaintiff .See Niko Engineering Ltd. vs. Akinsina & Ors (2005) All FWLR (Pt. 292) page 307-308. Per ELECHI, JCA. read in context

B. CONTRACT
2. Breach of Contract – Statutory provision on determination of venue of instituting an action for breach of contract
Venue for commencement of an action for breach of contract

In the determination of venue of instituting an action for breach of contract, Order 10 Rule 3 Cross River State High Court (Civil procedure) Rules 1987 states as follows.

“All suit for specific performance or upon the breach of contracts shall be commenced and determined in the judicial division in which such contract ought to have been performed or in which the Defendant resides or carriers on business”

Under this rule, venue depends on three alternatives. It could be where,

1. The contract ought to have been performed or

2. The Defendant resides

3. The Defendant carries on business. Per ELECHI, JCA. read in context

C. COURT
3. Jurisdiction – How the jurisdiction of a Court is determined
What determines jurisdiction of Court to entertain a cause/matter

The exercise of the powers conferred by statute on the Courts must have bearing with the claim before the Court as to make the statute or enactment relevant to the case at hand in line with the decision of Adeyemi vs. Opeyori (1976) 9 – 10 sc 31 . Azie vs. Azie (2015) 5 WRN 155. Therefore, the relevant law applicable is the law in force at the time the cause of action arose whereas the jurisdiction of the Court to entertain an action is determined upon the state of the law conferring jurisdiction of the point in time the action was constituted and heard. See Utih vs. Onoyiwe (1991) 1NWLR (pt. 166) page 166 at 201 per Bello CJN. Per ELECHI, JCA. read in context

D. EVIDENCE
4. Estoppel – The implication of a representation made by a party as shown by law
Nature of estoppel

…it is a settled principle of Law that where a party makes on irrevocable representation to another party which that other party relies on it to his detriment, the party who made the representation is etopped from denying liability for the loss suffered by the party that relied on his representation. Per ELECHI, JCA. read in context

E. PRACTICE AND PROCEDURE
5. Mistake of Counsel – How the mistake of a counsel cannot be visited on the party
Whether a party can be held responsible/punished for the mistake of his counsel

I must hold that the ineptitude of Counsel who prepared the Court Processes in this suit cannot be visited on the party. Not only is the fact that it can be amended since it is a misnomer but the parties are not misled and there is no miscarriage of justice. See Bowage vs. Adediduwa (1976) 6 (SC) 143, Akinyede vs. the Appraiser (1971) I All NLR page 162, Ahmadu vs. salawu (1974) 1 All NLR (pt. 12) page 318. Ivezegbu & Anor vs. Okwordu & Anor (1990) LPELR 1539 (SC), Chief John Qyegun vs. Chief Francis Nzeribe (2010) LPELR – 2870 (SC). It is therefore trite that Courts would not visit the blunders, mistake and inadvertence of Counsel on the litigant or penalize a litigant for the mistake of the registrar. See Oyegun vs. Nzeribe (Supra). Per ELECHI, JCA. read in context

6. Issue of Jurisdiction – The importance of jurisdiction and effect where a Court has no jurisdiction
General principles guiding the fundamental nature and importance of jurisdiction of Court; when the question of jurisdiction should be determined

Well, there is no doubt that the issue of jurisdiction is a threshold one which may be considered of any stage in the course of any proceedings. This question has been determined in a long line of cases that of any stage of the proceedings and even of the Supreme Court. I think it is desirable and even for better appreciation, to quote the diction of Obaseki, JSC, as propounded in Oloho vs. Akereja (1988) 3 NWLR pt 84 page 508 where the Court stated :

“The issue of jurisdiction is very fundamental as it goes to the competence of the Court or Tribunal. If a Court or Tribunal is not competent to entertain a matter or claim or suit, it is a waste of valuable time for the Court to embark on the hearing and determination of the suit, matter or claim. It is therefore an exhibition of wisdom to have the issue of jurisdiction or competence determine before embarking on the hearing and determination of the substantive matter.”

Therefore, the issue of jurisdiction being a fundamental one can even be raised by the Court itself suo moto. Also when there is sufficient facts ex-facie on the record establishing a want of competence or jurisdiction in the Court, it is the duty of the trial judge to raise the issue suo moto if the parties fail to draw the Court’s attention to it in line with the decision of Odiose vs. Agho (1972) 1 All NLR (Pt. 1) 170. This is because there is no justice in exercising jurisdiction where there is none. It is injustice to the law to the Court and even to the parties so to do.

The apex Court in Ndaeyo vs. Ogunnaya (1977) 1 SC 11 at 24-26, (I977) I MSLR 300 by reference to Halsbury Laws of England, page 323 paragraph 715, 4th Edition defines jurisdiction at page 24 as:

“… The authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by statute, charter or commission under which the Court is constituted and may be extended or restricted by similar means… A limitation may be as the area over which the jurisdiction extends …” Per ELECHI, JCA. read in context


LEAD JUDGMENT DELIVERED BY ELECHI, JCA


The 1st Respondent here in as Plaintiff of the High Court of Cross River State instituted the suit leading to this appeal by way of a Writ of Summons on the 15th November, 1999 against the Appellants and the 2nd Respondent as Defendant and claim as follows:

I. The sum of N7,259,232.00 from the Defendants jointly and severally being a loan and interest accrued thereon from the loan taken by the 1st Defendant and which payments from the proceeds of the contract executed with the loan and/or any other money that was to come into the account of the 1st Defendant to the Plaintiff vide on irrevocable order for same to the account of the Plaintiff.

II. 10% interest per month on the said sum from October 1999 until Judgment is given and paid.

III. The sum of N250,000.00 being cost of this action.

The 1st Respondent originally instituted this action against the Appellant and 2nd Respondent by ex-parte application to place the Writ on the undefended list and filed on the 15th November, 1999 on the basis of which Judgment was given in favour of the 1st Respondent in the sum of N7 ,259,232.00 only with 10% interest on the Judgment debt.

The Appellant herein only became aware of the said Judgment when the Court bailiffs stormed its Calabar Road premises of the branch with a notice of attachment dated 31st March, 2000 and proceeded to attach its properties.

Upon its Application to Court, the Judgment in default was set-aside and the Matter set down for hearing on the merit. The 1st Respondent sued and filed its Statement of Claim against two parties but proceeded against the Appellant only. The Appellant filed its Statement of Defence of 12 paragraphs denying the 1st Respondent’s claims on the 3rd March, 2005. One witness each testified for the Appellant and 1st Respondent.

ISSUE FOR DETERMINATION

The Appellant hereby posits the following issues for determination:

I. Whether the trial Court had the jurisdiction to entertain this Matter (This issue is covered by ground one of the notice and grounds of appeal).

II. If it had the jurisdiction to entertain the Matter, whether the Appellant was in a contractual relationship with the Respondent making it liable in damages for the breach thereof (Issue covered by grounds 2, 3 & 4 of the Notice and Grounds of Appeal)

In arguing Issue one:

“Whether the trial Court had the jurisdiction to entertain this Matter?”

Learned Appellant’s Counsel Stated that the Appellant denied the claim in its Statement of Defence filed on the 3rd March, 2005. Right away, it shows that the Appellant was not a party to the contract but was only to transfer the proceeds of the contract. According to the opinion of the Lower Court, the suit is based on alleged breach of contract. The question then is the proper avenue to sue in such actions. The Lower Court relying on the case of Arjay Ltd vs. A. M . S Ltd (2003) 7 NWLR Pt. 820 page 577 , held that as the contract commenced in Calabar, the Court action could also commence in Calabar.

Learned Appellant Counsel disagreed with the Lower Court and Stated that the case involved a contract entered in the United kingdom to be performed in Malabo in Equatorial Guinea, even though the aircraft was received in Kano, Nigeria. When the suit was commenced in Nigeria, the Supreme Court held that to be the wrong jurisdiction and that the trial Court had no jurisdiction to entertain the Matter. The Appellant raised the issue of jurisdiction on the ground that the suit ought to have been commenced in Akwa Ibom State and also that it was not sued in its proper name.

Learned Counsel cited the authority of Bank of Barada vs. Mercantile Bank of Nigeria & Ors Ltd. (1987) 6 SC 341 and Federal Government of Nigeria & 6 Ors vs. Zebra Energy Ltd to the effect that Rules of Court must be obeyed and that when a Matter is clearly spelt out in a statute which provides for mode of commencing an action, a party has no choice but to comply fully with the provisions of the statute. Learned Counsel then contended that the trial Court having agreed that the case is a contractual Matter ought to have resorted to and be guided by the rules in force at the time which is the Cross River State High Court (Civil Procedure) Rules 1987 Order 10 Rule 3. See also First Bank of Nigeria Plc vs. Abraham (2008) 18 NWLR Pt. 1118 Page 172.

The Lower Court had found that the 2nd Defendant with multiple branches is also resident in Calabar within jurisdiction. United Bank for Africa Plc has many branches and not United Bank for Africa. Also that Exhibits 4 & 5 shows that the contract in issue between the Plaintiff and 1st and 2nd Defendants actually took place in Calabar which is within jurisdiction of this Court. Exhibit 4 is a letter written by the Respondent to the Calabar branch of the Appellant to confirm the signature of his colleague at Itreto branch in Etinan in Akwa Ibom. Exhibit 5 is a letter from the Appellants Itreto branch in Etinan Local Government Area, Akwa Ibom State whose signature were to be confirmed by Exhibit 4. Learned Appellant’s Counsel then contended that he does not see how the trial Court interpreted these documents as showing that the contract took place in Calabar or that the Appellant was a party to the contract. Exhibit 5 which emanated from Akwa lbom State clearly Stated that it was written on the instruction of 1st Defendant’s letter of 20th November, 1998. The said letter emanated from Akwa Ibom State. That the signatures of the Bank officials in Akwa Ibom State were confirmed in Calabar, Cross River State do not make the Akwa Ibom transaction as evident on record to be commenced in Calabar.

The reason according to Learned Counsel is because this case is not founded on confirmation of wrong signatures or in whatever respect on the letter written by Appellants C a l a b a r b r a n c h . N o r i s i t o n e o f m e r e geographical/Divisional jurisdiction but one of the territorial jurisdictions. Therefore, no Matter the facts or evidence adduced, no Matter whether civil, contractual or criminal, a matter commenced in one State cannot be tried in another State. see Uchegbu vs. shell Petroleum Dev. co. Nig. Ltd. 920100 2 NWLR pt. 1178 page 295, Uwiakhoni vs. State (1985) 3 NWLR pt 12 Page 364. Section 270 of the Constitution of the Federal Republic of Nigeria 1999 which established a High Court for each State of the Federation. And so the Cross River State High Court cannot under the Constitution assume jurisdiction over Akwa Ibom State High Court territory. Also even by the (Uchegbu authority) (Supra) even if Exhibits 4 and 5 were relevant, having come about because of the contract in Akwa Ibom State, this suit should still have commenced in Akwa Ibom State.

It is the contention of the Learned Appellant’s Counsel that throughout the testimony of Pw1, the only role played by the Appellant’s Calabar branch was to confirm the signatures of its Itreto branch officers and that it is not sufficient to sue the branch on that basis alone.

Even from the entire records it could be seen that there was no testimony of the involvement of the 2nd Defendant Calabar branch other than the confirmation of the signatories as demanded by Exhibit 4. What is clear there is that the undertaking if at all, emanated from Akwa Ibom State. There is no reason whatsoever, why the Respondent would on the above set of facts insist that the contract or any part of it was in Calabar. If there is any claim whatsoever, it should have been commenced in the High Court of Akwa lbom State. Learned Counsel then Stated that the Companies and Allied Matters Act (CAMA) section 547 (1) Cap C20 Volume 3, Laws of the Federation 2004 provides that all communication and notices should be to the registered or head office of the company. Therefore the different branches notwithstanding, the Appellant if at all, should have been sued at its head office or the registered office and not in Calabar. Also by Section 66 of CAMA, the acts of agents of the company must be confirmed by its board or at a general meeting of the company. No evidence whatsoever was provided by the Respondent in this case to cover the exhibits relied by it.

It is the contention of the Appellant Counsel that what was sued in Court is United Bank for Africa. This was complained about but the trial judge treated it as a misnomer and therefore does not occasion a miscarriage of justice. It is more than a misnomer Learned Counsel insisted because suing UBA simpliciter may refer to a business name or association where as suing UBA PLC shows that it is a limited liability company belonging to the public in accordance with Sections 22 and 24 of CAMA.

Throughout the trial, the Respondent took no steps to amend the name on record but simply left it so as United Bank for Africa until Judgment. The Appellant is a public liability company governed by the Companies & Allied Matters Act. And as such, the Court lacks the jurisdiction to treat it as a non-registered company and also lacks the jurisdiction to force Appellant’s registered self as United Bank for Africa Plc to this suit as the Court can only exercise jurisdiction over parties before it relying on Le Bille vs. The Registered Trustees of Cherubim and Seraphim Church (2003) 2 NWLR pt. 804 page 399.

The United Bank for Africa Plc became cropped into the case by the ruling of the Court when the party was sued as United Bank for Africa citing the authority of Onyema vs. Oputa (1987) 3 NWLR pt. 60 page 259. Parties he submitted cannot by consent confer jurisdiction upon a Court or Tribunal. See Ariori vs elemo (1983) 1 SC 13. Even though the contract was between the Respondent and one Mr. Ekong but the trial Court decided against the Appellant who was not a party thereto. Learned Counsel then urged the Court to resolve this issue in their favour.

ISSUE NO. 2

“If it had jurisdiction to entertain the Matter whether the Appellant was in a contractual relationship with the Respondent making it liable in damages for breach thereof”

Learned Counsel Stated that the only link the Appellant had with the Respondent is as gathered by the evidence of Pw1:

“There was something done in respect of 2nd Defendant to ensure that Exhibit 2″ will be adhered to the 2nd Defendant issued a letter of undertaking to abide with Exhibit 2, Even though objected to the 2nd Defendant’s letter was admitted as Exhibit3… when we received the letter of undertaking, we took the letter to 2nd Defendant’s Calabar branch under a covering letter- Exhibit 4. The 2nd Defendant confirmed Exhibit 4 by stamping the original undertaking from the Plaintiff (i.e Exhibit 1) witness identify a copy of the original”

Thereafter what was referred as emanating from UBA Plc to the Plaintiff dated 20th November, 1998 was admitted without objection and marked Exhibit 5. The case of the Appellant as presented by Dw1 is entirely different. What could be deduced from this case is that the Appellants witness duly supported by the Respondent’s Pw1 and the record of the case, it could be concluded that there was no business or contractual relationship between it and the Respondent of DW1. The contract in issue was entered into in Akwa Ibom State to be performed in Bonny between Rivers and Bayelsa State Parties cannot cloth it with jurisdiction to bring it within the jurisdiction of Cross River State High Court. Exhibit 2 Stated inter alia.

“We write at the instance of the above named customer as per their letter UE/OFS/12/vol 01 of 20th November, 1998 i.e Exhibit 2.’

To succeed therefore, the Respondent must prove that the letter was countermanded which was not the case here. The said Exhibit 2 does not constitute a contract as there is no offer, acceptance or consideration.

On the original 1st Defendant’s instruction, Appellant agreed to make payments into a particular account regarding payments from Mobil Producing Nigeria Unlimited. However, throughout the proceedings in this case, the Respondent tendered no document showing that any payment was made that was not remitted.

It is therefore the submission of Learned Appellants that acting as 1st Defendants Banker/agent concerning his account did not make the Appellant’s liable relying on Okafor vs. Ezenuo (200) 13 NWLR pt 784 Page 319 to the effect that an agent of a disclosed principal is not ordinarily personal liable on a contract he enters on behalf of his principal.

It is pertinent at this point to ask “were the Mobil payments made?” The Respondents tendered receipts for purchase of office cabinets and safety box and Mobil Invoice of 26th June, 1998 even before their own letter of 20th November, 1998. No teller was tendered to show such payments if any. The Pw1 testified that the 1st Defendant’s application was for N1,782,616,00 and in his Statement of claim, it was N7,343,741 which sum involves 10% per month. Where then is the contract tying the Appellant to the liability and for calculation of interest . See Chrisaben Group Ltd. vs. Oni (2008) 11 NWLR pt. page 84. Not even Exhibit 1 said to contain the terms and conditions of the contract never contained the name of the Respondent. See Ocean Fisheries Nig. Ltd vs. Veepee Industries Ltd. (2009) 5 NWLR pt. 11135 page 430 at 442. Drexel Energy and Natural Resources Ltd. Vs Trans Int. Bank (2008) 18 NWLR pt. 1119 page 388.

On the basis of the above, Learned Counsel urged the Court to resolve issue No. 2 in his favour. Finally to allow the appeal and set aside the Judgment of the Lower Court and dismiss the Plaintiff’s claim in its entirety.

In reply, the 1st Respondent distilled two issues for determination to wit.

(1) Whether having regard to the admitted facts of this case, the High Court of Cross River State had the jurisdiction to entertain and determine the substantive suit leading to the present appeal.

(2) Whether, having regard to the admitted facts of this case, the Lower Court was right when it entered Judgment against the Appellant herein on the 24th April 2009?

Learned Counsel’s submission here is that the Lower Court was right in holding that it had jurisdiction to entertain the suit leading to the present appeal having regard to all the relevant facts as presented by both parties in the Court below. According to him, several reasons account for it in the following ways.

1. The present Appellant was carrying on business at Calabar within jurisdiction of the trial Court at all times before the filing of the suit leading to this appeal.

2. The Appellant is one Bank but divided into several branches carrying on business all over Nigeria including Calabar, Cross River State.

3. The Appellant’s Counsel had filed a motion on notice dated 5th December, 2005 for an Order striking out the name of the Appellant and discharging it from the proceedings in the Lower Court or in the alternative striking out the entire proceedings as having been commenced in the wrong judicial Division.

4. In a considered Ruling on the 26th June, 2006, Hon Justice S. M. Anjor dismissed the Appellant’s application and held that it had jurisdiction to hear and determine the substantive suit.

5. The Appellant has not appealed against the aforesaid ruling of 26th June, 2006 till date.

In support of the above, Learned Counsel referred the Court to the provisions or Order 10 Rule 3 of the Cross River State High Court (Civil Procedure) Rules 1987 and submitted that upon its proper interpretation, it is abundantly clear that the suit leading to the present appeal could properly be commenced against the Appellant in Calabar Judicial Division of the High Court of Cross River State. This is so because the above provision of the Rule anticipates three different venues for the commencement and determination of all suits for specific performance and breach of contract viz:

1. The first venue is the location in which such suit or contract ought to have been performed.

2. The second venue is the location in which the Defendant carries on business.

The Appellant he contended carries on business within Calabar at all times before the commencement of the suit leading to this appeal and as such, it was proper to try the Matter in Calabar. The Lower Court in appreciation of Order 10 Rule 3 of the provision (Supra) properly considered the purport of the provision in its Ruling of 26th June, 2006. Therefore, the Lower Court could not have resorted to Order 10 Rule 3 of the Cross River State High Court (Civil Procedure) Rules 1987 is obviously Otiose. Learned Counsel maintained that the contention of the Appellant that the Lower Court wrongly applied the decision in Arjay Ltd. Vs. A. M. S. Ltd. (2003) 6 NWLR pt 820 page 577, (2003) FWLR pt. 156 page 943 is grossly misleading. Oguntade JSC in Arjay Ltd. Case Stated that going by the Federal High Court rules at the time the action leading to this appeal was filed, all that was required to show was that the Defendant resided or carried on business in the judicial Division in which the action was instituted. See also First Bank of Nigeria Plc vs. Kayode Abraham (2009) 18 NWLR pt 118 page 172.

The Learned trial judge was right in assuming jurisdiction to entertain and determine the suit leading to the present appeal. The following reasons lend support to the above assertion.
1. There was documentary evidence before the Court showing that the Appellant verified the undertaking given by the Bank at its Calabar branch in the ordinary course of its business.

2. The Lower Court was entitled in Law from the various correspondences exchanged between the 1st Respondent and the Appellant that there was a contract between the parties.

3. The 1st Respondent sole witness (Linus Bassey Okon) tendered Exhibit 4 (the letter from the 1st Respondent to the Appellant dated 24th November, l998 requesting the Appellant to rectify Exhibit 3 and confirm authenticity of the signatures and Exhibit 5 (copy of the written undertaking given by the Appellant to the 1st Respondent dated 20th November, 1998 ratified and verified by the Appellant’s Calabar branch without any objection from the Appellant’s Counsel. It is therefore clear from undisputed facts on record that the Appellants representation to the 1st Respondent to irrevocably transfer payments made into 2nd Respondents account was ratified and verified of the Appellant’s Calabar office and the evidence of the 2nd Defendant amply substantiate same.

Therefore, Learned Counsel then submitted that the Lower Court rightly held that the agreement between the Appellant and the 1st Respondent was entered into in Calabar and that the Court had the jurisdiction to hear and determine the original suit.

On the above basis Learned Counsel submitted that the authorities of Uchegbu vs. shell Petroleum Dev Co. Nig. Ltd. (2010) 2 NWLR pt. 1178 page 285 and Unnakloni vs. the State (1985) 3 NWLR pt. 12 Page 364 relied upon by the Appellant do not apply to the circumstances of this case as the facts are different. It is trite principle of law that a case can only be an authority for a subsequent case when the facts are circumstantially similar. see Adegoke Motors Ltd v. Adesanya & Anor (1989) 3 NWLR pt. l09 page 250 at 265, CBN vs. Mrs. Olasupo Adedeji & ors (2005) FWLR pt 244 page 912 at 927.

The Appellant in their brief of argument made submissions on the provisions of Section 547 and Section 68 of the companies and Allied Matters Act cap 20 volume 3, Laws of the Federation 2004 for the first time at this appeal stage without leave of Court. Therefore, as no leave was sought and obtained, then the issues or points of Law sought to be raised should be incompetent and liable to be struck-out. See Universal Trust Bank Ltd. & 2 Ors vs. Demotsch Pharmacy (Nigeria) Limited (2007) MJSC vol. 8 page l-6 Akaaer Jor v.s Kutuku Dam (2001).

On service of the Court process, Learned Respondent’s Counsel submitted that by the combined provisions of Section 78 of the companies & Allied Matters Act (Supra) and by the Cross River State (Civil Procedure) Rules 1987 the Appellant was properly served.

On the name of United Bank for Africa being sued instead of United Bank for Africa Plc, Learned Counsel contended that the matter has been over taken by the Ruling of the Court on the 8th March, 2012 that the omission of the word “PLC” was a mere misnomer which had not occasioned any miscarriage of justice and can also be cured by an amendment. How be it, it was the United Bank for Africa Plc that appeared and participated throughout the trial of the Court below until Judgment. See Keiran Ikpara Obasi vs. Mikson Establishment Industries Ltd. (2005) All FWLR pt. 250 page 164.

Learned Respondent’s Counsel then called on the Court to invoke its powers under Order 4 Rule 1 of the Court of Appeal Rules 2001 and amend United Bank for Africa to United Bank for Africa Plc as was done in the case of Metal Construction (WA) Ltd. & 2 Ors vs. Mrs. D. A. Migliore & Anor (1979) 6 -9 SC 163 at 171. He then urged the Court to resolve this issue in favour of the Respondent.

ISSUE NO. 2

“Whether having regard to the admitted facts of this case, the Lower Court was right when it entered Judgment against the Appellant herein on the 24th April, 2009?”

On this issue, Learned Counsel submitted that the Lower Court was right when it entered Judgment against the Appellant herein on the 24th April, 2009 in the suit leading to this appeal. It is on record that the sole witness for the Appellant had admitted that United Bank for Africa Plc is one bank that carries on business in many branches all over the country and that when a manager of the bank takes a decision, it affects all the branches. The undisputed facts in this case include.

I. The Appellant had via Exhibit 3 made an irrevocable and binding representation to the 1st Respondent to transfer payments from Mobil Producing Nigeria unlimited and other monies into the account of the 2nd Respondent to the account of the 1st Respondent.

II. The 1st Respondent had on the strength of Appellants irrevocable representation disbursed money to the 2nd Respondent.

III. The Appellant only made a general denial which amounts to an admission in Law.

IV. During trial, the Appellant never contended that there were no payments made by Mobil Producing Nigeria Unlimited into the 2nd Respondent account as pleaded by the 1st Respondent.

V. The sole witness for the Appellant did not deny that Exhibit 3 emanated from the Appellant.

VI. The Appellant contrary to its representation, failed to remit payments made into the account of the 2nd Respondent to the 1st Respondent leading to failure by the 1st Respondent to meet her daily obligations to her customers.

VII. The Appellant’s sole witness never testified that Mr. Godwin Ekong countermanded his previous irrevocable payment order dated 20th November, 1998. Appellant’s Counsel contended that the 1st Respondent did not tender any documents to show that any payment was made into 2nd Respondent’s account was never raised or canvassed in the Court below. The above issues were not raised in the notice and grounds of appeal and as such, it ought not to be canvassed nor considered by this Court.

From what has been argued above, Learned Respondent Counsel then urged the Court to resolve this issue No. 2 in their favour and to dismiss the appeal for lacking in merit.

In his reply brief, Appellant’s Counsel stated that the Appellant did not appeal against the ruling of 26th June, 2006 till date. The ruling was on jurisdiction which can be raised at any time without leave of Court . See Arjay vs. Airline Management support Ltd. (Supra). on the whole ,he urged the Court to allow the appeal. That Appellants reply brief filed on the 7th March, 2013 therefore completed the settlement of briefs in this appeal.

I shall and hereby commence the resolution of the issues raised in this appeal. One of such issues is the contention of the Appellant that the Lower Court had no jurisdiction to entertain the matter as the suit ought to have commenced in Akwa Ibom and not Calabar and that it was not sued in its proper name.

Well, there is no doubt that the issue of jurisdiction is a threshold one which may be considered of any stage in the course of any proceedings. This question has been determined in a long line of cases that of any stage of the proceedings and even of the Supreme Court. I think it is desirable and even for better appreciation, to quote the diction of Obaseki, JSC, as propounded in Oloho vs. Akereja (1988) 3 NWLR pt 84 page 508 where the Court stated:

“The issue of jurisdiction is very fundamental as it goes to the competence of the Court or Tribunal. If a Court or Tribunal is not competent to entertain a matter or claim or suit, it is a waste of valuable time for the Court to embark on the hearing and determination of the suit, matter or claim. It is therefore an exhibition of wisdom to have the issue of jurisdiction or competence determine before embarking on the hearing and determination of the substantive matter.”

Therefore, the issue of jurisdiction being a fundamental one can even be raised by the Court itself suo moto. Also when there is sufficient facts ex-facie on the record establishing a want of competence or jurisdiction in the Court, it is the duty of the trial judge to raise the issue suo moto if the parties fail to draw the Court’s attention to it in line with the decision of Odiose vs. Agho (1972) 1 All NLR (Pt. 1) 170. This is because there is no justice in exercising jurisdiction where there is none. It is injustice to the law to the Court and even to the parties so to do.

The apex Court in Ndaeyo vs. Ogunnaya (1977) 1 SC 11 at 24-26, (I977) I MSLR 300 by reference to Halsbury Laws of England, page 323 paragraph 715, 4th Edition defines jurisdiction at page 24 as:

“… The authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by statute, charter or commission under which the Court is constituted and may be extended or restricted by similar means.. A limitation may be as the area over which the jurisdiction extends …”

The exercise of the powers conferred by statute on the Courts must have bearing with the claim before the Court as to make the statute or enactment relevant to the case at hand in line with the decision of Adeyemi vs. Opeyori (1976) 9 – 10 sc 31 . Azie vs. Azie (2015) 5 WRN 155.

Therefore, the relevant law applicable is the law in force at the time the cause of action arose whereas the jurisdiction of the Court to entertain an action is determined upon the state of the law conferring jurisdiction of the point in time the action was constituted and heard. See Utih vs. Onoyiwe (1991) 1NWLR (pt. 166) page 166 at 201 per Bello CJN.

In the instant case, the Learned Appellant’s Counsel contended that though the Lower Court is of the opinion that the suit is based on alleged breach of contract, the question them remains on which is the proper venue to institute the action – Calabar or Akwa Ibom? To him, the proper venue ought to be of Akwa Ibom State.

The 1st Respondent as Plaintiff in the Lower Court instituted this suit against the Appellant and 2nd Respondent. In his statement of claim it is stated inter alia that:

“…that the transaction leading to this suit was entered into at the Defendant’s offices in Calabar and the confirmation of signatories of the 2nd Defendant (Appellant) agent at Eket was confirmed here in Calabar before the document was handed over to the plaintiff (1st Respondent) …”

In the course of trial, the following exhibits were admitted amongst others. There are Exhibit 4 – the letter from the 1st Respondent to the Appellant dated 24th November, 1998 requesting the Appellant to ratify Exhibit 3 and confirm the authenticity of the signatures.

“Exhibit 5 – Copy of the written undertaking given by the Appellant to the 1st Respondent dated 20th November, 1998 ratified and verified by the Appellant’s Calabar branch. Also, the 1st Respondent witness testified concerning the Appellant that offer due confirmation, the Plaintiff went head and disbursed the money to the 1st Defendant”

In the circumstance of this case, a close study of Exhibits 3, 4 and 5 admitted in evidence seem to show that part of the contract in view that was entered and performed in Calabar.

The venue in which a suit may be heard and determined is an aspect of jurisdiction of the Court. It could be geographical and may be territorial. For instance, where a suit sought to have been brought in one state was brought in another as is being alleged by the Appellants in this case. In the determination of venue of instituting an action for breach of contract, Order 10 Rule 3 Cross River State High Court (Civil procedure) Rules 1987 states as follows.

“All suit for specific performance or upon the breach of contracts shall be commenced and determined in the judicial division in which such contract ought to have been performed or in which the Defendant resides or carriers on business”

Under this rule, venue depends on three alternatives. It could be where,

1. The contract ought to have been performed or

2. The Defendant resides

3. The Defendant carries on business.

A Plaintiff is obviously entitled to rely on any of the alternatives. The Plaintiff / 1st Respondent in the present case based the venue of the suit on the 3rd alternative where the Appellant carries on business.

Paragraph 3 and 4 of the statement of claim reads thus:

“The 2nd Defendant is a Finance institution registered under the company and allied matters Act with offices all over the country and a branch office in calabar within the jurisdiction of this honorable Court, the Plaintiff avers that the transaction leading to this suit was entered into of the Defendant’s offices in calabar and the confirmation of signatories of the 2nd Defendant’s agent of Eket was confirmed before the documents were handed over to the plaintiff”

A look at the writ of summons shows that the Appellant’s address for service stated thereon is C/O their solicitors, Orok Ironbar & Associates, 11 king street, alabar and it lies within the jurisdiction of the Court. There is no evidence on record to the effect that at the date of the issue of the writ, the Appellant was not carrying on business within the jurisdiction or resident within the Court area of jurisdiction. The Court has no legal justification as was done by the Lower Court to decline jurisdiction in compliance with order 10 Rule 3 (supra).

In the circumstances of this case, I hold the strong view that the cross River State High Court sitting at Calabar judicial division had the jurisdiction to hear and determine the suit as it did. I therefore resolve issue No. 1 in the Appellant’s brief against it and hold that the Lower Court had the jurisdiction to hear and determine the suit.

Respondent’s Counsel contends that the Appellants made submissions on the provisions of Section 547 and Section 66 of the Companies and Allied Matter Act Cap 20 Volume 3, Laws of the Federation 2004 of the Appellant’s brief of argument for the first time on appeal without leave of Court. This new set of facts which were not argued before the Lower Court.

Therefore the issues or points or law made thereon are hereby discountenanced and accordingly struck-out. See Universal Trust Bank Ltd & 2 Ors vs. Dolmetesh Pharmacy (Nigeria) Limited (2007) MJSC vol 8 page 1- 6, Akaaer Jov vs. Kutuku (2001) FWLR Pt. 62 page 2026 at 2007.

The contention of the Appellant that a Judgment against United Bank for Africa could not be enforced against United Bank for Africa Plc. This was however taken care of by the Lower Court in its Ruling when it held that it was a mere misnomer that can be cured by amendment. There is no appeal yet against the Ruling. In addition, it is the intention of the 1st Respondent to sue United Bank for Africa Plc and it was the said United Bank for Africa Plc that appeared and was represented throughout before the Lower Court and participated throughout the duration of the trial Court below until Judgment.

The scenario in this case can be likened to the mistake of Counsel which cannot be visited on the party. Having prepared the writ of summons and other Processes in the suit, it was the mistake or omission on the part of Counsel to only state “United Bank for Africa instead of United Bank for Africa Plc. I must hold that the ineptitude of Counsel who prepared the Court Processes in this suit cannot be visited on the party. Not only is the fact that it can be amended since it is a misnomer but the parties are not misled and there is no miscarriage of justice. See Bowage vs. Adediduwa (1976) 6 sc 143, Akinyede vs. the Appraiser (1971) I All NLR page 162, Ahmadu vs. Salawu (1974) 1 All NLR (pt. 12) page 318. Ivezegbu & Anor vs. Okwordu & Anor (1990) LPELR 1539 (sc), Chief John Qyegun vs. Chief Francis Nzeribe (2010) LPELR – 2870 (SC).

It is therefore trite that Courts would not visit the blunders, mistake and inadvertence of Counsel on the litigant or penalize a litigant for the mistake of the registrar. See Oyegun vs. Nzeribe (Supra). This aspect of Appellants issue in his brief of argument is of no monument as it did not create any doubt in the minds of the parties. Issue No. 1 is therefore resolved in favour of the Respondent and against the Appellant.

ISSUE No. 2:

“If it had the jurisdiction to entertain the matter, whether the Appellant was in a contractual relationship with the Respondent making it liable in damages for the breach thereof”

It is the contention of the Appellant’s Counsel that the only link the Appellant had with the 1st Respondent in this matter is not enough contractual relationship to tie the Appellant to the liability and calculation of interest of 10% per month. And that acting as 1st Defendant banker/agent concerning his account in the bank cannot make the Appellant liable reliance being placed on the authority of Okafor vs. Ezenwa (2002) 13 NWLR pt. 784 page 319.

On the other hand, the Respondent submitted that the Lower Court was right when it entered Judgment against the Appellant based on the contractual relationship with the Respondent and making it liable in damages for breach thereof. A lot of facts seem undisputed so far thus:

1. The Appellant had via Exhibit 3 made an irrevocable and binding representation to the 1st Respondent to transfer payments from Mobil Producing Nigeria Unlimited and other monies in the account of the 2nd Respondent to the account of the 1st Respondent.

2. The 1st Respondent had on the strength of the Appellant’s irrevocable representation disbursed money to the 2nd Respondent.

3. A look at paragraph 14 of the 1st Respondent’s statement of claim at page 51 of the record of appeal side by side with paragraph 9 of the Appellants statement of defence at page 59 of the record of appeal shows that the Appellant made a general denial viz “paragraphs 12, 13, 14, 15, 16, 18 and 19 of the statement of claim are very clearly denied. The Defendant as can be seen was not a party to the contract which was to be performed either in Akwa Ibom State or Bonny in Rivers State”

This is a general denial which in law amounts to an admission. Such general denial or traverse without more has been held not to amount to a denial but is deemed to be an admission. See First Bank of Nigeria Plc vs. T. S. A Industries Ltd. (2007) All FWLR (Pt. 352) 1719 at 1734. A general traverse like the one in this appeal is not enough to controvert material and important averments in pleadings particularly where the claim is one in debt or liquidated demand in money as in this case. As the claim by the 1st Respondent that the Appellant owed him the sum of N7, 259, 232.00 including other ancillary reliefs had not been denied expressly or by implication by the Appellant, the allegation must be deemed to be indirectly admitted. See Meridien Trade Corporation Ltd. vs. Metal Construction (WA) Ltd. (1998) LPELR 1862 (SC). This is why the Law requires that essential and material allegation in a Plaintiffs pleading should not be reacted to in a statement of defence by a general denial or traverse of averments in the Plaintiffs statement of claim that can meaningfully give rise to an issue or give rise to an issue in a claim by the Plaintiff .See Niko Engineering Ltd. vs. Akinsina & Ors (2005) All FWLR (Pt. 292) page 307-308.

All through trial, the Appellant never contended that there were no payments made by Mobil Producing Nigeria Unlimited into the 2nd Respondent’s account as pleaded by the 1st Respondent. Under Paragraph 14 of the Statement of claim paragraph 14 of the plaintiff’s statement of claim reads thus:

“Plaintiff avers that the thereafter Mobil Producing Nigeria Unlimited has made Payments and other monies had also come into the account which the 2nd Defendant (U. B. A. Plc) never blocked so as to transfer some into the account of the Plaintiff as had been contractually agreed upon the payments lodged in the account ore as follows:

A. 05/02/1999 – N1,714,216.28 TRF from Bonny
B. 17/03/1999 – N63,974.02 TRF from Bonny
C. 08/04/1999 – N101 ,625.00 TRF from Bonny
D. 11/06/1999 – N71,500.00 TRF from Bonny

Rather, in paragraph 9 of the statement of defence, the Defendant (Appellant) by way of defence and denial of liability merely said:

“Paragraphs 12, 13, 14, 15, 16, 18 and 19 of thestatement of claim are very clearly denied …”

As stated here in before, this general denial or traverse without more is tantamount to an admission.

(4) Even the sole witness for the Appellant at the Lower Court (Robert Marshall Effiom Desouza) did not deny that Exhibit 3 emanated from the Appellant.

(5) Contrary to its representation, the Appellant failed to remit payments made into the account of the 2nd Respondent to the 1st Respondent leading to the failure or breach by the 1st Respondent to meet her daily obligations to her customers.

(6) There is no evidence from the Appellants sole witness that Mr. Godwin Ekong countermanded his previous irrevocable payment order dated 20th November, 1998.

The above pieces of evidence were never challenged by the Appellant in the Lower Court to absolve itself of any liability, the Appellant could have produced either the statement of account of the 2nd Defendant to debunk the allegation of payments into that account. This was not done in spite of the irrevocable undertaking by the Appellant in this loan transaction.

On the basis of the above, it can be seen that it is a settled principle of Law that where a party makes on irrevocable representation to another party which that other party relies on it to his detriment, the party who made the representation is etopped from denying liability for the loss suffered by the party that relied on his representation. Therefore the Appellant is therefore liable in damage having failed or neglected to perform their own part of the transaction. They are therefore in breach of the irrevocable undertaking that all payments from Mobil Producing Nigeria Unlimited in their favour will be blocked and transferred to the Plaintiff’s account No. 171288799 with Union Bank Plc Eket as per the Appellant document dated 20th November 1998.

In the final resolve, I find all the issues resolved in favour of Respondent and against the Appellant. The appeal is not meritorious and not substantiated. It is also not followed and consequently dismissed. The Judgment of Hon Justice S. M. Anjor in Suit No. HC/551/99 dated 24th April 2009 is hereby affirmed. Appeal dismissed. Parties are to bear their respective costs of this appeal.

NWOSU-IHEME, JCA

I had a preview of the lead judgment of my learned brother PAUL O. ELECHI, JCA, just delivered and do hereby adopt same in dismissing the appeal and affirming the judgment of the lower Court. I also abide by the order as to costs.

OTISI, JCA

My learned Brother, Paul Obi Elechi, JCA, made available to me, in draft form, a copy of the lead Judgment just delivered dismissing this appeal. I am in complete agreement with his reasoning and conclusion, which I adopt as mine. I will only add few comments for emphasis.

The undertaking, Exhibit 3, which the Appellant had made to the 1st Respondent, was very clear in its terms. The Appellant undertook to transfer payments made to the 2nd Respondent by Mobil Producing Nigeria Unlimited to the account of the 1st Respondent. That undertaking must be interpreted within its unequivocal meaning. As already noted in the lead Judgment, the Appellant never contended that there were no payments made by Mobil Producing Nigeria Unlimited to the 2nd Respondent through its account domiciled with them. The Appellant therefore had the responsibility of complying with the undertaking it had made, upon which the 1st Respondent relied.

For these reasons, and for the more comprehensive reasons in the lead Judgment, I also dismiss this appeal and abide by the Orders made in the lead Judgment.