Legalpedia Citation: (2023-12) Legalpedia 76236 (CA)

In the Court of Appeal

Holden At Calabar

Tue Dec 12, 2023

Suit Number: CA/C/340/2021

CORAM

Hamma Akawu Barka Justice, Court of Appeal

Balkisu Bello Aliyu Justice, Court of Appeal

Peter Chudi Obiora Justice, Court of Appeal

PARTIES

ETI SPECIALISED RESOLUTION COMPANY LIMITED

APPELLANTS

1. TINAPA BUSINESS RESORT LIMITED
2. CROSS RIVER STATE GOVERNMENT

RESPONDENTS

AREA(S) OF LAW

APPEAL, BANKING, CONSTITUTIONAL LAW, CONTRACT, EVIDENCE, PRACTICE AND PROCEDURE

 

SUMMARY OF FACTS

The Appellant a subsidiary of Ecobank Nigeria Ltd, was assigned the task of recovering bad debts granted by the Ecobank Nigeria Ltd. The 1st respondent on the other hand is a company incorporated under the laws of the country and operates a business resort, the famous Tinapa resort with its office at the Tinapa Zone Calabar, while the 2nd Respondent is the Government of the Cross River State, which guaranteed the loan facility granted to the 1st Respondent.

In the year 2005, the 1st respondent applied for a loan facility of One Billion Naira to finance the development of the infrastructure for the Tinapa Business Resort project. That the loan was granted and duly assessed by the 1st respondent guaranteed by the 2nd Respondent. In addition, according to the Appellant, the 2nd Respondent gave an irrevocable undertaking to secure all facilities granted to the 1st Respondent, and further gave a letter of pledge to domicile the proceeds of the 10 million dollars Ecowas Regional Development Fund which the 2nd Respondent was expecting.

Appellant states that the Respondents failed to and or refused to liquidate the facility inspite of repeated demands, and as at the 30th of September, 2020, the amount owed representing the principal sum, interests and investments made by the Appellant all total the sum of N5, 678, 658, 162.55, (Five Billion, Six Hundred and Seventy-Eight Million, Six Hundred and Fifty-Eight Thousand, One Hundred and Sixty-two Naira, Fifty-Five Kobo).

The Respondents on the other hand, denied being indebted to the Appellant asserting that it had fully repaid the one-Billion-naira loan granted to it. It admitted the fact that Five Million Naira investment in the 1st Respondent’s in which N100, 000, 000 was invested on ordinary shares, while N400,000,000 was invested on convertible preference shares. In all, the Respondents denied being indebted to the Appellant in whatever form.

Appellants, convinced that the Respondent’s had no defence to the claim, filed an application for the suit to be placed on the undefended list, which application was granted. The Respondents upon being served, the originating processes, entered appearance and filed a notice of its intention to defend the action, together with all other processes.

On the 29th of June, 2021, the matter having come up for hearing, the issue of whether the Federal High Court had the jurisdiction to entertain the claim arose and parties urged to file written addresses on the matter, and the 2nd of December, 2021 taken as the hearing date for the adoption of written addresses. On the said date however, instead of parties adopting their written addresses, the Court proceeded to decline jurisdiction and instruct that the matter should be transferred to the State High Court because even though they had concurrent jurisdiction, the state was involved and so should handle it.

Dissatisfied with the decision of the lower Court, the Appellant filed the instant appeal.

 

HELD

Appeal allowed

 

ISSUES

1. Whether the Court below was right in law when it declined jurisdiction to hear the Appellants case and transferred same to Cross River State High Court for adjudication without allowing counsel to adopt the written addresses ordered by the Court on the 26th of June, 2021 on whether the Court had jurisdiction to entertain Appellants case which arose from Banker/Customer transaction and on whether Appellant is entitled to Judgment in the matter under the undefended list, and delivering a ruling on the written addresses ordered by the Court?
2. Whether the learned trial Judge was right in law when it refused to hear the Appellants suit and transferred same to the Cross River State High Court on the ground that the subject matter of the suit falls outside the jurisdiction of the Federal High Court, when from the claim before the Court, the claim arose from a banker/customer transaction?

 

RATIONES DECIDENDI

JURISDICTION – CONDUCT OF COURTS WHEN AND AFTER DETERMINING JURISDICTION

The issue of Jurisdiction being fundamental, and that which can be raised at any stage of the proceedings is being disputed. So also, is the fact that it can be raised by either of the parties or by the Court suo motu. Once the Court reaches the conclusion that it is bereft of jurisdiction, the only order capable of being made is to declare that it has no jurisdiction to handle the matter. I agree with the learned Respondents counsel, that at the stage in which the Court is of the view that it had no jurisdiction, written addresses may no longer be necessary, see the cases of Amadi vs. Okoli (1977) NSCC (v. 11) 117 and SLB Consortium vs. NNPC (2016) 9NWLR (pt. 1252) 317, it is also the law that the issue of jurisdiction can be heard together with the substantive matter if need be. See, Olorunkunle vs. Adigun (2012) 6 NWLR 408. – Per H. A. Barka, JCA

 

COURTS – CONDUCT OF COURTS IN DETERMINING JURISDICTION AND ADJUDICATION GENERALLY

The beauty of written addresses is to assist the Court. Though a judgment cannot be voided on the basis that the address of counsel was not considered, most at times it is after the addresses that one finds that the law on the issue (s) fought may not be as contemplated. Indeed, had the lower Court allowed the learned counsel who had filed written addresses to adopt the same, the learned trial Judge would have been properly guided by the authorities of the NDIC vs. FMB (1997) 2NWLR (pt. 490) 735, Beloxxi & Company Ltd vs. South Trust Bank & 2 ORS (2014) LPELR – 22338 (CA), Ecobank (NIG) Plc vs. Intercontinental Bank Plc (2012) 5NWLR (pt. 1293) 219 @ 237, Ndaba (NIG) Ltd vs. UBN Plc (2009) 13 NWLR (pt. 1158) 256 and NDIC vs. Okems Enterprises Ltd (supra), and maybe, he would have been reminded of his decision in the unreported case with No. FHC/EN/CS/137/2018, Ecobank Nigeria Ltd & Anor vs. Achichris International Co. Ltd & Anor, delivered by self. From the forgoing therefore, it is clear that the case of Adetona & Ors vs. Igele General Enterprises Ltd (2011) LPELR – 159 (SC), suggested by the learned counsel for the Respondent cannot be used to support the action of the lower Court being inapplicable to the case at hand. It now remains very clear to me that the lower Court seriously erred in refusing to hear the Appellants suit, when by the clear stipulations in Section 251 (1) (D) of the Constitution of the Federal Republic of Nigeria, the lower Court was imbued with the necessary jurisdiction to entertain amongst others, the case before it bordering on customer/banking relationship, having also refused to be assisted by learned counsel in the matter, whom he had already ordered to address him on the issue by way of written addresses. I have no doubt at all, and do agree with the Appellants counsel, that the duty before the lower Court at the stage wherewith he made his decision, was to determine whether to determine the action under the undefended list procedure by holding that defendants had no defence on the merit, or to transfer the case to the general cause list to be tried on the merit. Unfortunately, that Court shirked its responsibility by declining the jurisdiction bestowed upon it by the highest law of the land, the Constitution, electing the irresponsible way of transferring the matter to the State High Court when none of the parties applied for it. Let me reiterate that it is not the duty of any Court to choose a Court for litigants, unless the law directs, which is not the case here.  – Per H. A. Barka, JCA

COURTS – WHEN THE COURT OF APPEAL IS AS GOOD AS A TRIAL COURT IN A MATTER ON APPEAL

I agree with the learned Appellant’s counsel that all the factors for the activation of Section 15 of the Court of Appeal Act 2004, exists in the instant circumstance. For instance, the question for resolution forms a ground of appeal before this Court. The Federal High Court, the lower Court by dint of Section 251 (1) (d) of the Constitution of the Federal Republic of Nigeria is bestowed with the jurisdiction to hear the matter at hand. All facts necessary for the resolution of the point in issue are placed before the Court, that is whether the Plaintiffs case is one that can be treated under the undefended list procedure or for which the defendant ought to be granted leave to defend, and gauging from the length of time, the case had taken whether it is in the interest of justice to deal with the case at this level. Indeed, the case being one that is being fought on affidavit evidence, I do agree that this Court is as good as the trial Court to hear and to determine the matter, see Dilly vs. IGP & Ors (supra), and do invoke the powers granted this Court by virtue of Section 15 of the Court of Appeal Act 2004, in determining the case, which the lower Court failed to do. – Per H. A. Barka, JCA

 

ADMISSION – THE DUTY OF A PARTY WHO ADMITS INDEBTEDNESS

…once a defendant admits the receipt of a loan facility, the duty of establishing that he had paid his indebtedness, how the debt was paid or his reason for the non-payment is on the defendant. The cases of Macaulay vs. NAL Merchant bank Ltd (1990) 4NWLR (pt. 144) 233, Okoli vs. Morecab Finance Nigeria Ltd (2007) 14NWLR (pt. 1053) 37 are apt on the legal position.

It goes without saying therefore that the Respondents by their letter of the 4th of April, 2019, admitted their indebtedness to the tune of N1, 524, 296, 099.15, and thereafter contending that they had repaid their indebtedness, duty bound to show the proof of payment either by the production of receipts, bank tellers or other documents in the like manner showing that it had repaid the money owed. See Saleh vs. Bank of the North Ltd (2006) 6NWLR (pt. 976) 316, Carling Nig. Ltd vs. Keystone Bank Ltd (2017) 9NWLR (pt. 1571) 345.  – Per H. A. Barka, JCA

 

UNDEFENDED LIST – THE PURPOSE OF AN UNDEFENDED LIST PROCEDURE – WHERE THE NOTICE OF INTENTION TO DEFEND DISCLOSES NO DEFENCE

The purpose of the undefended list procedure is to prevent delay in cases where the plaintiff has a clear case and the defendant has no defence. See Olubusola Stores vs. standard Bank (NIG) Ltd (1975) 4SC 51, UTC vs. Pamotei (1989) 2NWLR (pt. 103)224. Therefore where a debt is admitted by the defendant debtor who benefitted from the monetary facility provided by the Plaintiff, and the debt is acknowledged, he will not be allowed to dribble the Plaintiff out of the judgment which the Plaintiff is legally entitled to, and would be bound by the letters of acknowledgement of indebtedness to the Plaintiff. See Ifeanyichukwu Trading Investment Ventures Ltd & Anor vs. Oyesom Community Bank Ltd (2015) 17NWLR (pt. 1487) 1. I am at one with the learned Appellants counsel that the defendant in the notice of intention to defend filed, failed to disclose any defence entitling the case to be transferred to the general cause list. See Intercontinental Bank Ltd vs. Briffina Ltd (2012) 13NWLR (pt. 1316) 1, Obi vs. NKWO market Community Bank Ltd (2001) 2 NWLR (pt. 696) 113.  – Per H. A. Barka, JCA

 

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Court of Appeal Act, 2004
3. Federal High Court (civil Procedure) Rules, 2019

 

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