ABUBAKAR DAUDA v. IBRAHIM YERIMA ABDULLAHI (2017)

In The Court of Appeal of Nigeria

On Wednesday, the 5th day of July, 2017

CA/J/63/2017

Before Their Lordships

AHMAD OLAREWAJU BELGOREJustice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMIJustice of The Court of Appeal of Nigeria

PAUL OBI ELECHIJustice of The Court of Appeal of Nigeria


ABUBAKAR DAUDA  Appellant

AND

IBRAHIM YERIMA ABDULLAHI Respondent

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AHMAD OLAREWAJU BELGORE, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Bauchi State High Court of Justice (hereinafter referred to as “The Lower Court”), contained in the ruling of Honourable Justice S. I. Zadawa (hereinafter referred to as “The Learned Trial Judge”), delivered on the 22nd day of December, 2016 in the Suit No. BA/165/2016. The Appellant herein was the plaintiff, while the Respondent was the defendant, before the lower Court.

By a writ of summons filed by the Appellant on the 8th day of September, 2016 and marked by the lower Court on the 15th day of September, 2016 as “undefended List”, the Respondent was sued for the recovery of a loan of N30,000,000.00 (Thirty Million Naira) granted to the Respondent by the Appellant. The writ of summons was supported by an 8-paragraph affidavit deposing to the circumstances leading to the alleged loan and its disbursement in three installments and stating that to the best belief of the deponent, the Respondent had no defence to the Court action.

When the writ of summons was served on the Respondent, he caused his Counsel to file a memorandum of conditional appearance together with notice of intention to defend, which was filed on the 14th day of October, 2016 along with a written address. On the same date, the Respondent filed notice of preliminary objection to the suit, on ground of jurisdiction, together with a written address.

On the 19th day of October, 2016, the Appellant deposed to a counter affidavit accompanied by a written address in opposition to the notice of preliminary objection. Upon being served with the counter affidavit, the Respondent deposed to a further affidavit on the 24th day of October, 2016.

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Learned Counsel for the parties adopted their respective addresses on the 25th day of October, 2016 and the matter was adjourned to the 22nd day of December, 2016 when ruling was delivered by the learned trial Judge, striking out the suit, on the ground that he lacked the jurisdiction to entertain and determine the suit.

It is against that ruling that the Appellant appealed to this Court vide a notice of appeal containing a single ground of appeal couched as follows:

GROUND OF APPEAL: 
The learned trial judge misdirected himself in law when he held 
that he does not (sic) have the prerequisite jurisdiction to entertain the matter.
PARTICULARS OF ERROR (SIC)
(a) The transaction between the appellant and the respondent first kicked up (sic) in Bauchi, Bauchi State via the appellant Bank with Yankari savings and Loans Limited through which the sum of N30,000,000 (sic) (thirty million naira) demanded for refund by the appellant was paid to the respondent account with Jaiz bank.
(b) The Court declined jurisdiction solely because it cannot ascertain whether Ibrahim Dauda Abubakar is same as Abubakar Dauda, regard being heard (sic) to Exhibit GH1 which contained the Bank statement of the appellant with Yankari savings and Loans Limited which he made the transferred (sic) to the respondent.
(c) The Court failed to study the Bank statement of the appellant attached to the counter affidavit of the appellant at the trial Court, thoroughly and meticulously which would have allowed him (sic) to assume jurisdiction just because it cannot be certain whether Ibrahim Dauda Abubakar is same as Abubakar Dauda.

Parties have filed, exchanged and adopted their respective briefs of argument. In the Appellant’s brief of argument settled by his Counsel, G. Hassan Esq., a sole issue has been identified as arising

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for the determination of this Court, viz:
“Whether or not the trial Court was right to decline jurisdiction in a matter which ordinarily it should not”.

The Respondent adopted the lone issue formulated by the Appellant. The Respondent’s brief of argument was settled by his Counsel, Mrs M. A. Lado of the M. A. Galaya & Co. law firm.

It is submitted for the Appellant that the trial Court has jurisdiction to entertain this action because by the depositions in paragraphs 8 and 9 of the counter affidavit, it was the Respondent who had made a personal request for the N30,000,000 (thirty million naira) by forwarding his account number and the details of the account, on a piece of paper marked as Exhibit GA1, to the Appellant. It is submitted that the cause of action arose in Bauchi State because the Appellant transferred the said sum of N30,000,000 to the respondent from his account with the Yankari Savings and Loans Limited in Bauchi State. Reference is made to Exhibit GH2 at pages 23 and 55 of the record of appeal. Reliance is place on Order 10, Rule 4 of the Bauchi State High Court (Civil Procedure) Rules. Two decided cases are cited without their citations being supplied. Reference is also made to Okafor v Ezenwa (2002) 13 NWLR (Pt 784) 319 at 418. It is further submitted that, the matter being considered by the learned trial judge was that of preliminary objection which is an interlocutory issue, he ought not to have gone into making some findings which might prejudice the main issues in the substantive action. Reliance is placed on Kotoye v Saraki (1994) 7 NWLR (Pt 357) 414; Idakula v. Adamu (2001) 1 NWLR (Pt 694) 322; Amadi w NNPC [2000] to NWLR (Pt 674) 26; and Ani Baba v Badejo [2013] NWLR (Pt 1346). It is submitted that the lower Court was wrong to have held that the issue, whether Ibrahim Dauda Abubakar is the same as Abubakar Dauda is speculative. It is submitted that Ibrahim Dauda Abubakar is another person owing the Appellant a sum of N9,450,000 (nine million, four hundred and fifty thousand naira). It is finally submitted that the learned trial Judge cited the Supreme Court authority in but did not follow the ratio therein First Bank of Nigeria Plc. v Kayode [2008] 18 NWLR (Pt. 1118) 172. It is urged that the appeal be allowed.

For the Respondent, it is submitted that the cause of action arose in Gombe, Gombe State, where he lives and carries on his business. It is submitted that it was one Ibrahim Dauda Abubakar who had transferred some money to his account

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at Jaiz Bank and not the Appellant. It is also submitted that if anyone is entitled to sue him on the money transferred to his account, it is Ibrahim Dauda Abubakar and not the Appellant. Reference is made to Exhibit GH1 at page 7 of the record of appeal; paragraphs 9, 10, 11, and 13 of the affidavit attached to the preliminary objection at page 49; paragraph 7 of the Appellant’s counter affidavit to the preliminary objection at page 55 of the record. It is submitted that even if the Appellant has a cause of action against the Respondent, the action ought to have been filed in Gombe State where the cause of action arose and where the Respondent resides and also carries on his business and  certainly, not in Bauchi State. Reliance is placed on Order 10 of the Bauchi State High Court (Civil Procedure) Rules and the case of Rivers State Government v. Specialist Konsult (2005) 125 LRCN 779 at 803, 805, and 806 where the Supreme Court considered Order 2, Rule 3 of the Lagos State High Court (Civil Procedure) Rules, 1994 which is in pari materia with Order 10, Rule 4 of the Bauchi State High Court (Civil Procedure) Rules. It is then submitted that the lower Court was right to have declined jurisdiction to entertain and determine this suit. It is submitted that the lower Court did not delve into any of the issues to be considered in the substantive matter while deciding an interlocutory matter. It is further submitted in that behalf that reference by the lower Court to any point in the substantive matter was limited to the facts deposed to in the various affidavits before the Court. It is submitted that all decided authorities cited by the Appellant in this regard are not relevant. It is finally submitted that since the issue before the lower Court was that of jurisdiction, the Court was bound to look at the processes filed by the Appellant to enable it determine whether or not it had jurisdiction, citing in support, the cases of S.I. Nig. Plc. v. U. E. C. Co. Ltd.  248 LRCN 97 at 115, 116and 120; and CBN. V Okojie (2015) 250 LRCN 44 at 76. The Court is urged to dismiss this appeal and to affirm the decision of the lower Court.

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At the tail-end of the Appellant’s brief of argument, the issue of the lower Court delving into the issues to be decided on the merit in the substantive matter while deciding an interlocutory matter surfaced. This issue does not form part of the sole ground of appeal filed and argued by the Appellant. This is a fresh issue which requires the leave of this Court in order to raise it. The Appellant neither sought nor obtained leave of this Court to raise it. The only option open to me is to discountenance the issue in this judgment. That issue is hereby discountenanced.

The bone of contention in this appeal is the interpretation of Order 10 of the Bauchi State High Court (Civil Procedure) Rules which provides for the State High Court that will have jurisdiction to entertain and determine an action bordering on specific performance or breach of any contract. Order 10, Rule 4 provides thus:
“All suits for specific performance or upon the breach of any contract may be commenced and determined in the judicial division in which such contract ought to have been performed or in which the defendant resides or carries on business”. Rule 4 further provides that “All other suits shall be commenced and determined in the judicial division in which the defendant resides or carries on business or in which the cause of action arose”.
This provision of the Bauchi State High Court (Civil Procedure) Rules is in pari materia with Order 2, Rule 3 of the Lagos State High Court (Civil Procedure) Rules, 1994 which has received judicial interpretation when the Supreme Court considered the Rules in Rivers State Government v. Specialist Konsult (2005) 125 LRCN 779 at 803, 805, and 806. The Supreme Court held at page 803 and 804 of the report that:
“This takes me to the provisions of Order 2, Rule 3 of the High Court of Lagos Civil Procedure Rules, 1994 which reads
‘All suits for specific performance or upon the breach of any contract may be commenced and determined in the

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judicial division in which such contract ought to have been performed or in which the defendant resides’
By the above provisions of Order 2, Rule 3, it is manifest that this action having regard to my conclusion,

that the appellants reside and have their business in Port Harcourt, it is my view that had the Court below averted to the above provisions and the facts as analyzed above, it would not have held that the action was properly commenced and heard in Lagos. It follows, therefore, that the decision of the Court below that the appellant reside and do their business in Lagos is hereby over turned.”
At page 805 of the report, it was held that:
“Why was the action filed in the High Court of Lagos State when there is no nexus between the contract and Lagos State? A Court in one State does not have the jurisdiction to hear and determine a matter which is exclusively within the jurisdiction of another State”.
Then, at pages 805 and 806, the Supreme Court gave the guidelines as to how to determine jurisdiction in contract and contract related matters. The Court held that:
“In actions based on contract, jurisdiction depends generally on one of the following three alternatives, namely:
a. Where the contract was made;
b. Where the contract ought to have been performed; or
c. Where the defendant resides
There are also another settled 
procedure and it is this. The venue for the trial of a suit based on a breach of contract could also be determined by:
a. Where the contract ought to have been performed; or
b. Where the defendant resides; or
c. Where the defendant carries on business.
The law is settled that when a word or Statute has been judicially interpreted, no rule of interpretation can be employed in its interpretation any longer. This is more so, when the interpretation was by the apex Court, as it is evident in respect of Order 2, Rule 3 of the Lagos State High Court (Civil Procedure) Rules,

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1994 which I have held to be in pari materia with Order 10, Rule 4 of the Bauchi State High Court (Civil Procedure) Rules which has come up for interpretation in this appeal.

Certain point is shrouded in mystery and remains on certain in this case, and that is the fact that throughout the proceedings in the lower Court, the Appellant did not disclose where and how he obtained the account number of the Respondent. That would have made it easier to decide, one way or the other, where the cause of action had arisen. But one thing stands out very clearly from the affidavits filed by both parties, and that is the fact that apart from the Respondent residing in Gombe, his Jaiz account to which the sum of N30,000,000.00 (Thirty Million Naira) was transferred is domiciled in Gombe. It is also not controverted that the Respondent does his business in Gombe, Gombe State. It is also not in dispute that the money was transferred from Yankari Savings and Loans Limited which is in Bauchi State.

The Court cannot speculate as to how and where the Appellant obtained the account number of the Respondent just as the lower Court cannot speculate as to whether Ibrahim Dauda Abubakar is the same person as the Appellant, Dauda Abubakar. The address of counsel does not constitute and cannot be a substitute for evidence. The information supplied by the Appellant, in the counsel’s written address, that Ibrahim Dauda Abubakar is another person is of no assistance to the Appellant’s case.

The only safe course open to the learned trial Judge was to lean in favour of the fact that the proper venue for the institution of this action is Gombe State and not Bauchi State since the money involved was to be withdrawn in Gombe. In view of all that I have said, it is my candid view that the correct venue for the institution of this action is the Gombe State High Court, and I so hold.

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I find no merit in this appeal and it is accordingly hereby dismissed. The decision of the lower Court is hereby affirmed. Cost assessed at N60,000.00 is hereby awarded in favour of the Respondent.

FATIMA OMORO AKINBAMI, J.C.A.: I agree.

PAUL OBI ELECHI, J.C.A.: I agree.

Appearances

Z.A. Libata, Esq.For Appellant

AND

M.A. Galaya, Esq.For Respondent

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