NATIONAL BANK OF NIG. LIMITED & ANOR (APPELLANT)
JOHN AKINIKUNMI SHOYOYE & ANOR (RESPONDENT)
(1977) All N.L.R. 168
Division: Supreme Court of Nigeria
Date of Judgment: 27th May, 1977
Case Number: SC.312/1975
Before: (Alexander C.J.N., Sowemimo, Idigbe, Obaseki, JJ.S.C)
This appeal is against the judgment of the Western State Court of Appeal reversing the interlocutory decision of the High Court of Western State sitting at Abeokuta overruling the respondents objection as to jurisdiction on the ground of incorrect venue. The point of objection was not raised in the pleadings which had been filed and duly delivered. The case had been set down for hearing when the counsel for the respondents raised the points by way of preliminary objection that the action was instituted in the High Court of Western State holden at Abeokuta that had no jurisdiction to hear it. He contended that the proper court or venue was the High Court of Lagos State on the grounds that (a) the defendants were resident in Lagos and were served there, (b) that the 1st plaintiff's head-quarters was in Lagos, and (c) that the overdraft was taken from the 1st plaintiff in Lagos.
In a considered ruling the trial Judge held that the objection was misconceived, overruled, and dismissed it with costs. The defendants (herein the respondents) with the leave of the court appealed to the Western State Court of Appeal which allowed the appeal and struck out the action. It is against this decision of the Western Court of Appeal that the appellants have appealed to the Supreme Court.
(1) It is clear from the face of the writ of summons that the addresses for service of the plaintiffs and the defendants were within Western Nigeria and within the jurisdiction if the High Court of Western Nigeria.
(2) It is settled law that an objection to the jurisdiction of the court can be taken at any time of the proceedings by the court. Even without pleadings the court can order a preliminary point of law like jurisdiction to be taken.
(3) The combined effect of sections 8 and 9 of the High Court Law of Western State is to give the High Court unlimited powers to hear determine causes and matters brought before it anywhere in the Western State only. Jurisdiction to hear and determine causes and matters outside the western state was not conferred on it. The defendants address for service therein stated lies within the jurisdiction of the court and in the absence of evidence to the effect that at the date of the issue of the writ the defendants were not resident in or carrying on business within the jurisdiction of the court or that the agreement for payment of the money was not to be performed within the jurisdiction of the court, the court has no legal justification to decline jurisdiction.
(4) It is the law that where no payment is expressly is expressly or impliedly specified by the contract the general rule is that it is the debtors duty to seek the creditor in order to pay him at his place of business or residence if it is within the county or realm. In the instant case, the allegation is that the 2nd appellant to whom the debt due from the respondent was assigned now resides in Ibadan within the jurisdiction of the court.
O.O. Somolu Esq for the Appellant
Chief Toye Coker for the Respondent
Cases referred to:-
(1) Attorney General of Trinidad and Tobago v Erichie (1893) A. C. 513 P. C. 522-523
(2) Jacob Ndaeyo v Godwin Ogunnaya S.C395/75
(3) Ramage & anor v Womach (1890) 1Q.B 114
(4) Robey v Sneafell Mining Co. (1888) 20 Q.B.D 152 at 154
Statutes referred to:-
(1) High Court Civil Procedure Rules
(2) High Court Law of Western Nigeria cap. 44
Obaseki, J.S.C:-This appeal is against the judgment of the Western State Court of Appeal delivered on the 10th day of January, 1975 reversing the interlocutory decision of the High Court of the Western State (Adewale Thompson, j) sitting at Abeokuta on the 30th day of April, 1971 overruling the defendants/respondents' objection as to jurisdiction on the ground of incorrect venue.
The point of objection we may observe, was not raised in the pleadings which had been filed and duly delivered. The case had been set down and called for hearing when the learned Counsel for the defendants/respondents raised the point by way of preliminary objection that the action was instituted in the Court (High Court of Justice, Western State and holden at Abeokuta) that had no jurisdiction to hear it. He contended that the proper Court or venue was the High Court of Lagos State.
The grounds on which he founded the objection were:
(1) That the defendants were resident in Lagos and were served there;
(2) That the 1st plaintiff's headquarters was Lagos; and
(3) That the overdraft was taken from the 1st plaintiff in Lagos.
In a considered ruling, the learned trial Judge, Adewale Thompson, J. held that the objection was misconceived and overruled and dismissed it with £10.10/-(Ten guineas costs) costs to the plaintiff.
The defendants with leave of the High Court, appealed to the Western State Court of Appeal. After hearing Counsel, the Court of Appeal allowed the appeal and struck out the suit. In allowing the appeal, (the learned Justices of) the Western State Court in the penultimate paragraph of the judgment delivered by Adegboyega Ademola, J.A. said:
"All we would say is that on the facts of this case, no Judicial Division of the High Court of the Western State had jurisdiction to entertain this case. The action should have been instituted in the High Court of Lagos State. We therefore allow the appeal and strike out the action of the plaintiffs/respondents." (Underlining ours)
Against this judgment, the appellant filed five grounds of appeal but argued only three of them (grounds 1, 2 and 5) which read:
(1) The learned Judges of Appeal erred in law in their wrongful admission and/or assumption of evidence to arrive at their decision and thereby occasioned a miscarriage of justice.
(2) The learned Judges of Appeal erred in their conclusions that the action was wrongly commenced in the Abeokuta Judicial Division when it was the most proximate judicial division to the last known place of residence or trading address of the defendants at the institution of the action:
(3) The learned Judges of Appeal erred in law in not considering the submission of the applicant's Counsel as to the nature of the plaintiffs/appellants' case on the ground that it was not preferred in argument in the court below when it is always open to a respondent to meet preliminary objections on any general grounds available from the facts of the case at any stage of the proceedings.
We may observe that no evidence was adduced before the High Court in support of the preliminary objection. The point as we pointed out earlier was not even raised in the pleadings. The High Court and Western State Court of Appeal were therefore left to an examination of the writ of summons, the claim endorsed on the writ and the statement of claim and the statement of defence to ascertain whether the objection was well founded.
The claim endorsed on the writ of summons reads:
"The plaintiffs claim against the defendants jointly and severally the sum of £15,443:0:11d (fifteen thousand four hundred and forty three pounds and eleven pence) being the balance of overdraft and the accrued interest thereon received by the defendants at lagos and owing the plaintiffs as at 31st December, 1966 by the said defendants who trade as partners under the style and business name of Subuola Trading and Transport Service."
The body of the writ of summons reads:
"To John Akinkunmi Shoyoye, Justus Adeoye Akinkunmi of Abeokuta Motor Road, Ifo.
You are hereby commanded to attend this Court holden at Abeokuta on Monday the 25th day of April, 1967 at 9 o'clock in the fore-noon to answer a suit by the National Bank of Nigeria Limited; Western Nigeria Marketing Board of c/o Cocoa House, Ibadan against you."
It is therefore clear from the face of the writ of summons that the addresses for service of the plaintiffs and the defendants were within Western Nigeria and within the jurisdiction of the High Court of Western Nigeria.
The statement of claim, although addressed for service in Lagos, did not plead the residential address of the defendants but gave the address of the headquarters of the partnership in Lagos. It pleaded the assignment of the debt by the 1st plaintiff to the 2nd plaintiff with the concurrent of the defendants. It finally pleaded facts showing that defendants entered into arrangements with the 1st plaintiff for payment of the money owed to and in this regard we may now refer to paragraphs 1, 3, 6, 7, 9, 10, 11, 12, 13, 14 and 15 or the statement of claim which read as follows:
"(1) The first plaintiff is a Banking Company incorporated in Nigeria with its Head Office in Lagos and several branches throughout the Federation of Nigeria;
(3) The second plaintiff is a Board incorporated under the Laws of Western Nigeria with its Head Office in Ibadan;
(6) The defendants are business partners who traded under the business name of Subuola Trading and Transport Service with its Head Office in Lagos;
(7) The defendants as such parties under the name of Subuola Trading and Transport Service applied to the second plaintiff for appointment as Licensed Buying Agent under the plaintiff;
(9) The defendants were so appointed and for several years thereafter they were appointed from year to year as Licensed Buying Agent;
(10) The application of the defendants were granted and from that time, the first plaintiff granted produce overdraft to the defendants ... stood also at a debt of £5,522:19:Od at 30th March, 1961 to bring the total of their indebtedness to the first plaintiff at £15,443:0:1ld. (fifteen thousand, four hundred and forty three pounds, no shillings and eleven pence);
(11) When the defendants defaulted in the payment of the outstanding balance of the overdraft granted to them up to march, 1961 the first plaintiff asked to assign the debt to the 2nd plaintiff since the defendants were still a Licensed Buying Agent under the second plaintiff.
(12) The defendants were consulted by the 2nd plaintiff and the defendants agreed to the assignment proposal in writing;
(13) The first plaintiff made an equitable assignment of the said debt of £15,443:0:11d to the 2nd plaintiff on the 1st day of April, 1961 with the knowledge and consent of the defendants;
(14) The defendants entered into several arrangements with the 2nd plaintiff since then for the liquidation of the money but none has materialised;
(15) The defendants have since failed to pay the said sum of £15,443:0:11d despite repeated demands." (Underlining ours)
The statement of defence filed did not plead as to jurisdiction or raise any objection to the jurisdiction of the Court although it traversed the above averments. It is clear then that, without notice of motion on the day set down for hearing but before the hearing of evidence, Council for the defendants/respondents raised the point of objection to the jurisdiction of the Court. It is, however, settled law that such an objection can be taken at any time by the Court. Even without pleadings the Court can order preliminary points of law to be taken (Ramage & another v. Womach (1900) 1 QB 114).
Counsel for the plaintiffs/appellants in his reply submitted that the objection was premature and pointed out that the objection was not raised in the statement of defence i.e. by the defendants' pleadings.
The learned trial Judge (Adewale Thompson, J.) considered the arguments on the objection and dismissed it and in his ruling he observed:
"Mr Kayode Somolu for the plaintiffs contended that the objection was premature in that the mere fact that the defendants were served in Lagos and had their head office in Lagos does not affect the plausibility that at the time the suit was commenced in 1967 they carried on their business within this judicial division and that it will be necessary for the defendants to be examined on oath on that point before the fact could be established to exclude the courts' jurisdiction. It is learned Counsel's submission that the objection cannot be entertained unless the defendants make it the subject of a special plea in their defence as provided by Order 6 Rule 6.......When a litigant files an action and gives as place of business of a defendant's firm, a particular address, that address at the date the writ was filed determines the venue of trial and in the Western State such an address determines the Judicial Division in which the cause or matter is to be heard."
The learned trial Judge in conclusion said:
"I agree with Mr Somolu that unless the defendants could be properly examined as to their place of business at the time the summons was filed, they cannot take advantage of Order 6 Rule 5 of the High Court Civil Procedure Rules.
In this case, it is not even necessary to undertake such an exercise. Defendants filed their statement of defence as far back as 25th September, 1968. Sometimes in 1969 defendants' Counsel applied to have the statement of defence amended by including as paragraph 10 the special plea that the action is statute barred under Limitation Law of Western Nigerial. The amendment was granted. Nowhere in the statement was any plea as to venue as provided by Order 6 Rule 6 of the High Court (Civil Procedure) Rules
I hold that the objection is misconceived and is overruled with 10 guineas costs to the plaintiff."
The defendants appealed against the ruling to the Western State Court of Appeal. The Western State Court of Appeal in its judgment (delivered by Adegboyega Ademola, J.A.) allowing the appeal observed inter alia:
"Before us, Chief Toye Coker for the defendants/appellants, in effect repeated his submissions before the learned Judge Adewale Thompson. He did not add anything new. On the contrary, Mr Kayode Somolu who appeared for the plaintiffs/respondents submitted that the case was one of an assignment of a debt and as the 2nd plaintiff has its office in Ibadan, the case could be taken in this State. He referred to Order 6 Rule 4. He submitted that the defendants resided in Ifo and so, the Abeokuta Judicial Division had jurisdiction to try the case. We do not share Counsel's view on the facts of this matter and so we do not think his submission is valid. But more important is the fact that this was a point not taken in the Court below as the record which we have quoted clearly show
To go further as the learned Judge did and ask the question "where is the evidence that the defendants in 1967 when the writ was filed were not trading as Subuola Trading and Transport Service with their office at Abeokuta Motor Road Ifo?" was, with respect to the learned Judge a clearly wrong approach. We ask, where is the evidence that they were trading in Ifo?
We think that it was for the plaintiffs to have pleaded facts which would show where the defendants traded and/or resided in 1967 at the time the writ was taken out. It is true that the defendants did not raise the question of venue" in their statement of defence but we venture to suggest that they were the defendants and not the plaintiffs. There is not legal duty on the defendants to do what the learned Judge suggested. That duty clearly rests with the plaintiffs. More important we are of the view that it would be wrong merely to confer jurisdiction on the High Court of this State, to state a defendant's address on the writ to be within a Judicial Division of the High Court of this State when infact that defendant resides and or carries on business in another State. That seems to have been precisely what happened in this case." (Underlining ours)
It is against this decision that this appeal has been lodged.
The learned Counsel for the appellants argued the 3 grounds (grounds 1, 2, and 5) together.
He repeated the submissions he made both before the High Court and the Court of Appeal and emphasised the fact that at no time was evidence adduced to found the submission that the defendants were at no time resident within the Abeokuta judicial division of the High Court of Western Nigeria. He also submitted that since the debt has been assigned to the 2nd plaintiff/appellant, the High Court of Western Nigeria at Abeokuta had jurisdiction to entertain the matter as the debt had to be paid to them in the Western State. In other words, the agreement to pay the 2nd plaintiff had to be performed in the Western State of Nigeria.
Chief Toye Coker repeated his grounds of objection in reply. He also drew our attention to certain passages in the learned trial Judge's ruling on the effect of Order 6 Rule 6 which were most inapposite as Lagos State was and is not part of Western State.
The civil jurisdiction vested in the Western State High Court by law in contained in Section 8, Section 9(I) and
Section II of the High Court Law Cap. 44. They read:
(8) "To the extent that such jurisdiction may be conferred by the Regional Legislature, the High Court shall be a superior Court of record, an in addition to any other jurisdiction conferred by this or any other law or Ordinance, shall, within the limits and subject to the provisions of this law, possess and exercise all the jurisdiction, powers, and authorities, which are vested in or capable of being exercised by Her Majesty's High Court of Justice in England.
9 (1) To the extent that such jurisdiction may be conferred by the Regional Legislature, the jurisdiction by this law vested in the High Court shall include all her Majesty's Civil jurisdiction which at the commencement of this Law was, or at any time may be exerceable in the Western State, for the judicial hearing and determination of matter in difference, or, for the administration or control of property and persons "
(11) The jurisdiction by this law vested in the High Court shall be exercised (so far as regards procedure and practice) in the manner provided by this law
or by such rules and orders of Court as may be made pursuant to this or any other Law or Ordinance."
It is pursuant to this section that the High Court (Civil Procedure) Rules were made.
What then is the meaning of jurisdiction? It is defined in Vol. 10 Halsbury's Laws of England 4th Ed. para. 715 page 323 as follows:
"By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it, or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted and may be extended or restricted by similar means. If no restriction is imposed, the jurisdiction is said to be unlimited. a limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognizance or as to area over which the jurisdiction extends or it may partake of both these characteristic."
The High Court sat over this matter in exercise of its original jurisdiction.
"The original jurisdiction of the High Court is general, it extends to all causes of action and is unlimited in amount.........." (see Vol. 10 para. 847 Halsbury's Laws of England 4th Ed. page 398)
The combined effect of sections 8 and 9 of the High Court Law of Western State referred to and set out above is to give the High Court unlimited powers to hear and determine causes and matters brought before it anywhere in the Western State only. Jurisdiction to hear and determine causes and matters outside the Western State was not conferred on it. The place of instituting and of trials of suits is however regulated by Order 6 of the High Court Civil Procedure Rules and this action being one for the payment of debt (an overdraft assigned by the 1st to the 2nd plaintiff) the relevant Rule is Rule 4 Order 6. This Rule deals with suits arising out of contracts, and it reads:
"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."
We may once more turn our attention to the writ of summons. The defendants' address for service therein stated lies within the jurisdiction of the Court and in the absence of evidence to the effect that at the date of the issue of the writ the defendants were not resident in or carrying on business within the jurisdiction of the Court or that the agreement for payment of the money was not to be performed within the jurisdiction of the Court, the Court has no legal justification to decline jurisdiction. It is the law that where no payment is expressly or impliedly specified by the contract the general rule is that it is the debtor's duty (his place of residence not withstanding) to seek the creditor in order to pay him at his place of business or residence if it is within the country or realm. In other words, "It is a general principle that money is paid to a creditor by a debtor where the creditor is"-(see Sir Frances Jeune in The Eider 1893 Probate 119 at 128: also Robey v. Snaefell Mining Co (1888) 20 QBD at 154 Stephen J. citing the authority of Sir Edward Coke to the effect that the obligor of a bond must go to the obligee in order to pay it); and here the allegation is that the 2nd appellant to whom the debt due from the respondent was assigned now resides in Ibadan within the jurisdiction. We may also observe that there is no evidence that leave of the judge was obtained to seal the writ for service out of jurisdiction as is required by Order 4 Rule 16 of the High Court Civil Procedure Rules if and when a writ is to be served on the defendant who resides out of jurisdiction.
We are therefore firmly of the view that the Western State Court of Appeal erred in its approach to the question before it and erred when, in the absence of any evidence, it held that the plaintiff/appellant inserted the address "Abeokuta Motor Road, Ifo" as address for service of the writ on the defendants in order to bring the matter within the jurisdiction of the Court. Such a finding which to the plaintiffs and their Counsel alleges an important and far-reaching damaging and damnifying misconduct must be based on evidence on oath fully tested in cross-examination. We are of the view that, having regard to the pleaded facts establishing the business relationship between the plaintiffs and the defendants, until there is evidence to the contrary, it was reasonable for the learned Judge of the High Court to assume that the defendants must have been the source of knowledge of that address.
It is true that the objection taken by Counsel did not fall squarely within the purview of Order 6 Rule 6 of the High Court Civil Procedure Rules which reads:
"(6) In case any suit shall be commenced in any other Judicial Division than that in which it ought to have been commenced, the same may, notwithstanding, be tried in the Judicial Division in which it shall have been so commenced, unless the Court shall otherwise direct, or the defendant shall plead specially in objection to the jurisdiction before or at the time when he is required to state his answer or to plead in such cause."
But we are of the view that it could similarly have been raised in the pleadings and, or, if not in the pleadings, by motion supported by affidavit giving the full facts on which defendants relied. The point of time at which the objection was taken deprived the Court below of the evidence necessary for a proper decision by the Western State Court of Appeal and has delayed the hearing of this case of overdraft/debt instituted in 1967 till now, 1977 May. If there had been evidence in support of the objection, we would have had no hesitation in following the judgment of this Court in the case of Jacob Ndaeyo v. Godwin Ogunnaya SC.395/75 delivered by Idigbe, J.S.C. on the 14th day of January, 1977. That was a case commenced in the High Court of the East Central State at Owerri (now High Court of Imo State) instead of the High Court of the Rivers State at Port Harcourt where the defendant carried on business or the High Court of the South Eastern State at Uyo (now Cross River State) where the defendant resided and also carried on business. This Court was able to hold that the action was instituted in the wrong venue and in the High Court that had no jurisdiction to hear and determine it because there was evidence on record on which the Court could so find.
This Court in that case said in the penultimate paragraph:
"The evidence on record, however, is that the appellant (i.e. the defendant in these proceedings) neither resides, nor carries on business, within Imo (formerly East Central) State. Where therefore, a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing." (See Vol.10 Halsbury's Laws of England O Cit. para. 715 Attorney General for Trinidad and Tobago v. Erichie (1893) AC. 513 P.C. 522-523. See also Timi Tini v. Amabebe 14 W.A.C.A. 374)
In the instant case, there was no such evidence and we say no evidence at all.
This appeal succeeds and is hereby allowed.
The judgment of the Western State Court of Appeal dated 10th January, 1975 striking out suit AB/9/67 National Bank of Nigeria Limited and another, plaintiffs/appellants v. John Akinkunmi Shoyoye and another defendants/respondents is hereby set aside and the suit is hereby ordered to be listed before the High Court of Ogun State for hearing.
The defendants/respondents shall pay the plaintiffs/appellants costs of this appeal assessed at One hundred and fifty Naira
(Sgd.) SIR D.A.R.ALEXANDER
CHIEF JUSTICE OF NIGERIA
(Sgd.) G.S. SOWEMIMO
JUSTICE, SUPREME COURT
JUSTICE, SUPREME COURT
(Sgd.) A.O. OBASEKI
JUSTICE, SUPREME COURT