MONIDAB MERCANTILE CO. LTD & ANOR v. AMCON (2020)

MONIDAB MERCANTILE CO. LTD & ANOR v. AMCON

(2020)LCN/14163(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, May 29, 2020

CA/IB/434/2019

Before Our Lordships:

Helen Moronkeji Ogunwumiju Justice of the Court of Appeal

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

1. MONIDAB MERCANTILE COMPANY LIMITED 2. OLUADE NIKITA ADEWALE APPELANT(S)

And

ASSET MANAGEMENT CORPORATION OF NIGERIA RESPONDENT(S)

RATIO

PARAMETERS OF DETERMINING THE NATURE OF GROUNDS OF APPEAL

I think it is imperative to refer to the Supreme Court case of Akinyemi v. Odu’a Investment Co. Ltd. (2012) 17 NWLR (pt. 1329) 209 at 230 – 233 where His Lordship, Muhammad, J.S.C., (now C.J.N.), set out the parameters of determining the core or nature of grounds of appeal as distinct from their designation or cognomen thus –
“I think the criteria for distinguishing a ground of law from that of mixed law and fact have, for quite long, been settled. For the purposes of elucidation, I consider it pertinent to summarise some of these principles as follows:
(1) The first and foremost is for one to examine thoroughly the grounds of appeal in the case concerned to see whether they reveal a misunderstanding by the Lower Court of the law, or a misapplication of the law to the facts already proved or admitted.
(2) Where a ground complains of a misunderstanding by the Lower Court of the law or a misapplication of the law to the facts already proved or admitted, it is a ground of law.
(3) Where a ground of appeal questions the evaluation of facts before the application of the law, it is a ground of mixed law and fact.
(4) A ground which raises a question of pure fact is certainly a ground of fact.
(5) Where the Lower Court finds that particular events occurred although there is no admissible evidence before the Court that the event did in fact occur, the ground is that of law.
(6) Where admissible evidence has been led, the assessment of that evidence is entirely for that Court. If there is a complaint about the assessment of the admissible evidence, the ground is that of fact.
(7) Where the Lower Court approached the construction of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, the ground is that of law

(8) Where the Lower Court or Tribunal applying the law to the facts in a process which requires the skill of a trained lawyer, this is a question of law.
(9) Where the Lower Court reaches a conclusion which cannot reasonably be drawn from the facts as found, the Appeal Court will assume that there has been a misconception of the law. This is a ground of law.
(10) Where the conclusion of the Lower Court is one of possible resolutions but one which the appeal court would not have reached if seized of the issue, that conclusion is not an error in law.
(11) Where a Trial Court fails to apply the facts which it has found correctly to the circumstances of the case before it and there is an appeal to a Court of appeal which alleges a misdirection in the exercise of the application by the trial Court, the ground of appeal alleging the misdirection is a ground of law not of fact.
(12) When the Court of Appeal finds such application to be wrong and decides to make its own findings such findings made by the Court of appeal are issues of fact and not of law.
(13) Where the Appeal Court interferes in such a case and there is a further appeal to a higher Court of appeal on the application of the facts, the grounds of appeal alleging such misdirection by the Lower Court of appeal is a ground of law not of fact.
(14) A ground of appeal which complains that the decision of the Trial Court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses, it is purely a ground of fact.
(My emphasis).”
See also Ecobank (Nig.) Ltd. v. Honeywell Flour Mills Plc (2019) 2 NWLR (pt. 1655) 55 at 77, 78, 91-93.
There is also the case of Lovleen Toys Industries Limited v. Komolafe (2013) 14 NWLR (pt. 1375) 542 at 555 – 556 where the Supreme Court relied on the cases of Nwadike and Ors. v. Ibekwe and Ors. (1987) 4 NWLR (pt. 67) 718 at 744 – 745 and Ogbechie and Ors. v. Onochie and Ors. (1986) 2 NWLR (pt. 23) 484 at 491 to hold per the lead judgment prepared by His Lordship, Ogunbiyi, J.S.C., that where the grounds of appeal reveal a misunderstanding by the Court of the law, or a misapplication of the law to the facts already proved or undisputed or admitted, it would be a question of law. PER IKYEGH, J.C.A.

WHETHER OR NOT IT IS THE CLAIM OF THE CLAIMANT THAT DETERMINE THE JURISDICTION OF THE COURT

In my respectful opinion, it is the claim of the respondent as the claimant at the Court below that would determine the jurisdiction of the said Court vide the cases (supra) cited by the appellants read with the cases of Justice Elelu-Habeeb and Ors. v. A. -. G., Federation and Ors. (2012) 13 NWLR (pt. 1318) 432 at 474, Izenkwe v. Nnadozie (1955) 16 WACA 361 at 363, Adeyemi v. Opeyori (1976) 9 – 1- S.C. 31, Western Steel Works Ltd. v. Iron and Steel Workers (No. 2) (1987) 1 NWLR (pt. 49) 284, Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) 423 at 588. PER IKYEGH, J.C.A.

WHETHER OR NOT A CAUSE OF ACTION CAN BE BEYOND THE JURISDICTION OF THE SUPERIOR COURT

The law is however settled that no cause of action is deemed to be beyond the jurisdiction of a Superior Court (such as the Court below) unless specifically expressed and clearly excluded or appear to be so plainly delimited vide the cases of Musaconi Ltd. v. Aspinall (2013) 14 NWLR (pt.1375) 435 at 464, Anakwenze v. Aneke (1985) 6 S.C. 41.
It follows that for the jurisdiction of the Court to be excluded, clear words must be used by the drafts person in the piece of legislation prohibiting or ousting the jurisdiction of the Court vide Adigun v. A.-G., Oyo State (1987) 1 NWLR (pt.63) 678 at 742. PER IKYEGH, J.C.A.

WHETHER OR NOT THE QUESTION OF LAW OR JURISDICTION CAN BE RAISED AT ANY TIME IN THE PROCEEDINGS

It is trite that a question of law or jurisdiction can be raised at any time in the proceedings. But where a statute including a rule of Court such as Order 13 Rule 2(1) (a) and Order 29 Rules 1 – 4 of the Rules of the Court below provides a specific procedure for raising such issue or matter, that procedure and no other procedure must be followed or complied with by the parties and the Court as rules of Court and statutory provisions for orderly and timely presentation of cases must be obeyed vide Oko v. State (2017) 17 NWLR (pt. 1593) 24 at 47 following Adejobi v. State (2011) 12 NWLR (pt. 1261) 347 at 367. See also MC Investments Ltd and Anor. v. Core Investments and Capital Markets Ltd. (2012) 12 NWLR (pt. 1313) 1 at 17, Ighedo v. P.H.C.N. Plc (2018) 9 NWLR (pt. 1623) 51, Ifeanyichukwu v. O.C.B. Ltd. (2015) 17 NWLR (pt. 1487) 1, In Res: Abiola (2019) 12 NWLR (pt. 1685) 27 at 41. PER IKYEGH, J.C.A.

THE DUTY OF THE APPELLATE COURT

After all an Appellate Court is concerned with the correctness of the decision arrived at by the Court below, not necessarily its reasoning unless the misdirection (if any) in the reasoning had caused the Court below to come to a wrong decision as to render the decision perverse or bad which was not the case here vide Mainstreet Bank Capital Ltd. v. Nigeria Reinsurance Corporation Plc. (2018) 14 NWLR (pt. 1640) 423 at 448 and Ukejianya v. Uchendu (1950) 13 WACA 45 at 46. The case of Sifax Ltd. v. Migfo Ltd (supra) did not decide on the abeyance or freezing of time to file pleadings while preliminary objection was pursued in the same proceedings but it dwelt on time not running for the purpose of period of limitation of action while a party pursued his case in a Court without jurisdiction. PER IKYEGH, J.C.A.

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is against the ruling of the Federal High Court sitting in Ibadan (the Court below) whereby it dismissed the appellants’ application predicated on a preliminary objection challenging the jurisdiction of the Court below.

Expressed in a nutshell, the appellants’ application for the striking out of the action was based on the ground that the action being a simple debt recovery deprived the Court below of the jurisdiction to entertain it. The Court below heard arguments for and against the application and considered the materials in form of affidavit evidence and the statement of claim of the appellants placed before it and, in a considered ruling, dismissed the application in its entirety and assumed jurisdiction over the action.

Dissatisfied with the decision of the Court below, which was delivered on 22.10.19, the appellants filed a notice of appeal with six (6) grounds of appeal on 26.11.19 vide pages 98 – 103 of the record of appeal (the record). Pursuant to the compilation and transmission of the record to the Registry of the Court on 29.11.19, the

appellants filed their brief of argument on 11.12.19. upon service of the appellants’ brief on the respondent, the latter caused her brief to be filed on 07.02.20, but deemed as properly filed on 26.02.20.

The respondent raised and argued a preliminary objection to the notice of appeal in its brief with the opening argument that the appeal being interlocutory and the grounds of appeal thereof having been based on mixed law and facts, the appellants who were required to seek and obtain the leave of the Court to file the notice of appeal under Section 242(1) of the Constitution of the Federal Republic of Nigeria 1999, as altered, (1999 Constitution) read with Section 24 of the Court of Appeal Act 2004, as amended, failed to obtain the said leave which should render the appeal incompetent and liable to be struck out on ground of incompetence citing in support thereof the cases of Ezuma and Anor. v. FRN (2017) LPELR – 43382 (CA) and Irhabor v. Ogaiamien (1999) 8 NWLR (pt. 616) 517.

The respondent elaborated her arguments on the preliminary objection to the notice of appeal that in determining the nature of a ground of appeal, it is necessary

to ascertain the substance or core question contained in the ground of the appeal complained of, rather than its classification by an appellant, citing in support of the proposition the case of Brittania – U (Nig.) td. V. Seplat Petroleum Development Co., Ltd and Ors. (2016) LPELR – 40007 (SC.)

Proceeding on the same footing, the respondent argued that a thorough examination of ground 3 of the notice of appeal contained in page 101 of the record shows the ground of appeal is based on the appellants’ decision to file a preliminary objection at any time and, whether it affects the hands of the clock or time with respect to payment of penalty at the Court below which should be a ground of mixed law and facts.

The respondent referred to ground 4 of the notice of appeal contained in pages 101 of the record to contend that thoroughly examined, the said ground of appeal is based on the discretion the Court below has on the intention of the appellants to delay the trial of the substantive action by filing a preliminary objection to jurisdiction in respect of the substantive action which should be a ground of fact as it is based on the

evaluation of facts.

The respondent referred to ground 5 of the notice of appeal contained in page 102 of the record to contend that thoroughly examined, it discussed an issue of the award of costs against the appellants’ learned counsel and the supposed misconception of the intention of the appellants to delay the trial of the substantive action which should be a question of pure fact.

The respondent referred to ground 6 of the notice of appeal contained in page 103 of the record to contend that when thoroughly examined, it shows the ground is based on an issue of fact and the circumstances of the entire case which should be a ground of pure fact.

Consequently, the respondent contended that as grounds 3, 4, 5 and 6 of the notice of appeal question evaluation of facts before the application of law and, also, raise questions of facts, the failure of the appellants to seek and obtain the leave of the Court to commence the appeal on the said grounds of appeal rendered the grounds of appeal and issues 1, 2 and 3 of the issues for determination tied to the respective grounds of appeal incompetent and robs the Court of the jurisdiction to

entertain the appeal upon which the respondent urged that the preliminary objection be upheld and the said grounds of appeal and issues 1, 2 and 3 tied to them, respectively, should be struck out together with the entire appeal citing in support the cases of Viashima and Anor. v. Chris (2019) LPELR – 47608 (CA) and Idurobo v. Ehiorobo (2018) AFWLR (pt. 956) 674 at 676.

The appellants’ reply brief filed on 25.02.20, but deemed as properly filed on 29.04.20, responded to the arguments on the preliminary objection that the application which resulted in the ruling of the Court below was based on undisputed facts and was purely a challenge to the jurisdiction of the Court below and the manner in which the Court below exercised its discretion in the matter to the effect that the Court below erred in its conclusion in applying the law to the facts which are questions of law with respect to grounds 3, 4 and 5 of the notice of appeal citing in support the cases of Metal Construction W.A. Ltd. v. Migliore (1990) 1 NWLR (pt. 126) 299 and Ogbechie v. Onochie (1986) 2 NWLR (pt. 23) 484.

The appellants contended that the purpose of ground 6 of the

notice of appeal is to draw the attention of the Court to the proper inference the Court below ought to have drawn on the undisputed facts and circumstances of the case and is on that ground a question of law citing in support the case of Saraki v. Kotoye (1990) 4 NWLR (pt. 143) 144 at 179 – 180; therefore the appellants urged that the preliminary objection should be resolved in their favour as all the grounds of appeal are grounds of law and appealable as of right or without the leave of the Court first sought and had.

I wish to respectfully preface the discussion with the threshold observation that inasmuch as the preliminary objection is to some of the grounds of appeal – grounds 3, 4, 5 and 6 of the notice of appeal – without challenging grounds 1 and 2 of the notice of appeal, the appropriate procedure should have been by motion on notice challenging some of the grounds of appeal, not by way of a preliminary objection vide KLM Royal Dutch Airlines v. Jaminlat Aloma (2018) 1 NWLR (pt. 1601) 473 at 490 – 491.
Be that as it may, the preliminary objection as filed and argued by the respondent and responded to by the

appellants shall be treated as a mere irregularity and the application considered on the merit in the interest of substantial justice vide KLM Royal Dutch Airlines v. Aloma (supra) at 491 (para .B) where the Supreme Court held that a complaint wrongly couched as a preliminary objection will be considered by an Appellate Court in the interest of justice, particularly where (as in this case), the appellant responded to it in a reply brief.

The principal issue decided by the Court below in the preliminary objection was that it had jurisdiction to entertain the action which is undoubtedly an interlocutory decision. Conversely, a decision that the Court does not have jurisdiction is final in that there is nothing for the Court to decide after holding that it does not have jurisdiction to hear the case. So, the decision of the Court below that it has jurisdiction to hear the case is interlocutory vide Compagne Generale De Geophysique (Nig.) Ltd. v. Eronim (2019) 14 NWLR (pt. 1692) 219.

The preliminary objection was to grounds 3, 4, 5 and 6 of the notice of appeal. These grounds of appeal with their particulars are contained in pages 101 – 103 of the

record as follows –
“3) The Court below misdirected itself in law and acted under a misconception of the applicable procedural law when it held as follows:-
“That being stated, it goes without more that the right of the defendants/applicants to raise an issue of jurisdiction at any time and their counsel decision not to file the requisite pleadings does not place the issue of the time to file same in abeyance. In sum, the hand of the clock has not stopped ticking against the defendants/applicants, Therefore for the days in default, I hold the penalty for late filing as prescribed in the AMCON PROCEEDINGS RULES, 2018 shall apply, I so order,”
and thereby came to a wrong conclusion which occasioned miscarriage of justice.
Particulars
a) The trial Court having placed “heavy reliance” on the Supreme Court decision in the case of Ajayi v Adebiyi 2012 All FWLR (Pt. 634) I to the effect that the Appellant need not file statement of defence before challenging jurisdiction of the Court ought not to proceed toward penalty for not having filed statement of defence.

b) The Trial Court upon rejecting Appellant’s

application ought to have ordered the filing of statement of defence in line with the decision of the Supreme Court in Onibudo v Akibu 1982 All NLR p.194.
c) The Applicants/Appellants having appropriately exercised their constitutional right to challenge the jurisdiction of the Trial Court and followed proper procedure by doing so in limine, ought not to be penalised by the Court.
4). The learned trial judge erred in law and acted under misapprehension of applicable procedural law when, for the purpose of finding that the Appellants’ application was filed with intent to delay the trial of Claimant’s suit, it held that the law on the jurisdiction of the Court on the subject matter of the action is trite and thereby came to a wrong conclusion which occasioned miscarriage of justice.
Particulars
a) The issue of jurisdiction of the Federal High Court vis-a-vis the State High Court has always been complex;
b) The Court had no justifiable reason to infer mala fide justifying awarding sanctions when application is filed to challenge jurisdiction in this case.
c) The provisions of the AMCON Act are not free from obscurity as regards the

vesting of jurisdiction in the Federal High Court in debt recovery cases involving AMCON.
5) The learned trial judge erred in law and acted under a misconception of applicable procedural law when it held-
“Also given the trite position of the law on this Court’s jurisdiction, I find the defendants/applicants counsel application is an attempt to frustrate the quick dispensation of Claimant suit. I frown at it and I award cost of One Hundred Thousand Naira against Mr. Babajide Onadele in Favour of Claimant/ Respondent,”
and thereby came to a wrong conclusion which occasioned miscarriage of justice.
Particulars
a) The Appellants’ counsel had no application of his own before the Trial Court.
b) There was no legal justification to award costs against Appellants’ counsel personally when he was not a party to the action and could not justifiably have been accused of any wrongdoing.
c) The effect of awarding costs in the action against Appellants’ counsel was to suggest that he was guilty of the attempt to frustrate quick dispensation of justice without hearing him on such charge.
d) The finding of deliberate delay

to frustrate quick disposal of the case conflicted with the finding that in line with the authority of the Supreme Court in the case of Ajayi v. Adebiyi (supra) the application was properly filed in the circumstance.
e) It is not the law that even where urgency attaches to proceedings genuine objection to jurisdiction ought not be raised in limine.
6) The decision of the Court below cannot be supported having regard to the facts and circumstances of the case before it.”

the case concerned to see whether they reveal a misunderstanding by the Lower Court of the law, or a misapplication of the law to the facts already proved or admitted.
(2) Where a ground complains of a misunderstanding by the Lower Court of the law or a misapplication of the law to the facts already proved or admitted, it is a ground of law.
(3) Where a ground of appeal questions the evaluation of facts before the application of the law, it is a ground of mixed law and fact.
(4) A ground which raises a question of pure fact is certainly a ground of fact.
(5) Where the Lower Court finds that particular events occurred although there is no admissible evidence before the Court that the event did in fact occur, the ground is that of law.
(6) Where admissible evidence has been led, the assessment of that evidence is entirely for that Court. If there is a complaint about the assessment of the admissible evidence, the ground is that of fact.
(7) Where the Lower Court approached the construction of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, the ground is that of law

appeal to a higher Court of appeal on the application of the facts, the grounds of appeal alleging such misdirection by the Lower Court of appeal is a ground of law not of fact.
(14) A ground of appeal which complains that the decision of the Trial Court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses, it is purely a ground of fact.
(My emphasis).”
See also Ecobank (Nig.) Ltd. v. Honeywell Flour Mills Plc (2019) 2 NWLR (pt. 1655) 55 at 77, 78, 91-93.
There is also the case of Lovleen Toys Industries Limited v. Komolafe (2013) 14 NWLR (pt. 1375) 542 at 555 – 556 where the Supreme Court relied on the cases of Nwadike and Ors. v. Ibekwe and Ors. (1987) 4 NWLR (pt. 67) 718 at 744 – 745 and Ogbechie and Ors. v. Onochie and Ors. (1986) 2 NWLR (pt. 23) 484 at 491 to hold per the lead judgment prepared by His Lordship, Ogunbiyi, J.S.C., that where the grounds of appeal reveal a misunderstanding by the Court of the law, or a misapplication of the law to the facts already proved or undisputed or admitted, it would be a question of law. A careful perusal of

ground 3 of the notice of appeal with the particulars thereof (supra) reveals that it is complaining essentially on the misconception of the applicable procedural law by the Court below in relation to control of time of litigation prescribed by the relevant AMCON statutory provisions. I think the complaint is a question of law as it attacks the alleged misconception or misunderstanding of the relevant law by the Court below vide the cases (supra) on when a ground of appeal is of law or mixed law and fact or of fact.
There is also the case of Nipol Ltd. v. Bioku Investment (1992) 3 NWLR (pt. 232) 727, where the Supreme Court held that a complaint on timeline or promptitude within which to take steps in the procedure for litigation is an issue of jurisdiction which is a question of law vide Lovleen Toys Ind. Ltd. v. Komolafe (supra) at 566 where His Lordship, Rhodes-vivour, J.S.C., stated that jurisdiction is a question of law.
Ground 4 of the notice of appeal with its particulars thereof (supra) complains in the main that the Court below acted under misapprehension of applicable procedural law when it held that the preliminary objection to its

jurisdiction was filed with intent to delay the trial of the substantive action and therefore mala-fide.
Again, a ground of appeal complaining of misapprehension and/or misunderstanding of the law by the Court, as ground 4 of the notice of appeal (supra), is a ground of law vide the cases (supra) on the content and amplitude of a ground of appeal read with the case (supra) on control of timeline of litigation being an issue of jurisdiction and thus a question of law.
Ground 5 of the notice of appeal with its particulars thereof (supra) is on the alleged attempt by the appellants to frustrate the quick determination of the substantive action which the Court below frowned upon by awarding costs against the appellants’ learned counsel which is a question of law as urgency attached to litigation by the AMCON statutory provisions affects the time-bound nature of the litigation and is thus an issue of jurisdiction and/or question of law vide the cases (supra) on the content or core of a ground of appeal and of time being an issue of jurisdiction.
Ground 6 of the notice of appeal (supra) is copied verbatim from ground 3 of the grounds of appeal

in the case of Saraki v. Kotoye (supra) cited by the appellants where the Supreme Court held per the judgment prepared by His Lordship, Agbaje, J.S.C., (now of blessed memory) that –
“I understand ground 3 of the grounds of appeal as saying giving the primary facts in the matter now on appeal before us, that is the facts and circumstances of this case, either there is nothing i.e. no evidence to support the decision of the Court below or that no person acting judicially and properly instructed as to the relevant law could have to the determination under appeal …
I am therefore inclined to the view that a ground of appeal such as ground 3 in this case is in order in an appeal on point of law against the exercise of a Court’s discretion.”
Accordingly, I am of the modest opinion that grounds 3, 4, 5 and 6 of the notice of appeal (supra) are grounds of law in an

interlocutory appeal which do not require the leave of the Court for the said grounds of appeal to be filed vide Section 241(1) (b) of the 1999 Constitution, as altered, to the effect that an appeal shall lie from the decisions of the Federal High Court (the Court below) or a High Court to the Court of Appeal as of right where the ground of appeal involves questions of law alone in any civil or criminal proceedings.
There is therefore no merit in the preliminary objection to grounds 3, 4, 5 and 6 of the notice of appeal (supra). I would dismiss the preliminary objection and add that had the preliminary objection succeeded, only grounds 3, 4, 5 and 6 of the notice of appeal (supra) should have been struck out, not the entire appeal as erroneously canvassed by the respondent and the appeal could have proceeded on the extant grounds 1 and 2 of the notice of appeal which were not challenged by the preliminary objection videU.B.N. Plc. v. Ravih Abdul and Co. Ltd. (2019) 3 NWLR (pt. 1659) 203 at 227.

The appellants contended in the brief of argument that the jurisdiction of the Court being fundamental, it should be determined first by the Court looking at

the claim before it against the backdrop of the express provisions of the Constitution and/or any other law/enactment, therefore having regard to the fact that Sections 49, 50, 50A, 53 and 61 of the AMCON Act do not by positive, clear and plain language confer jurisdiction on the Court below to determine an action in contract or recovery of a debt, the Court below lacked the jurisdiction to entertain the action.

It was also contended that the crux of the action filed by the respondent, as the claimant at the Court below, vis-à-vis the general jurisdiction of the court below under Section 251(1) of the 1999 Constitution does not confer jurisdiction on the Court below notwithstanding that the respondent is an agency of the Federal Government, as the claim is in contract or debt recovery which by the proviso to Section 251(1) of the 1999 Constitution deprived the Court below of jurisdiction in relation to any dispute between an individual customer and the bank citing in support the cases of Isogun v. Afotan (2019) ALL FWLR (pt. 1005) 467, A. – G., Anambra State v. Uba (2005) ALL FWLR (pt. 250) 690. Madukolu v. Nkemdilim (1962) ALL NLR (pt. 4)

(pagination not supplied), John Shoye Intl. Ltd. v. F.H.A. (2016) 14 NWLR (pt. 1533) 427, Achebe v. Nwosu (2003) FWLR (pt. 136) 891, 915, Adelekan v. Ecu-Line NV (2006) ALL FWL (pt. 321) 1213 at 1226, Mandara v. A. – G., Federation (1984) NSCC (vol. 15) 221, Ajomale v. Yaduat (No. 1) (1991) 5 NWLR (pt. 191) 257, Ijeoma v. Petromed Oil Nigeria Ltd. (2010) ALL FWLR (pt. 539) 1120 at 1132, African Newspaper Nigeria Ltd. v. F.G.N. (1985) 2 NWLR (pt. 6) 137 at 153, Adigun v. A. – G., Oyo State (1987) 1 NWLR (pt. 53) 678, Ogbebor v. INEC (2019) ALL FWLR (pt. 1004) 305 at 340 – 341.

The appellants further contended that the issue of jurisdiction was not in contest in the case of The University of Calabar v. AMCON (2019) LPELR – 47309; consequently, the appellants contended that the Court below defied the principle of stare decisis that where reliance is placed by the Court on the decision of another Court the facts in the other case should be the same as the facts before such Court citing in support the cases ofAdegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (pt. 109) 250 at 266, Oduneye v. FRN (2015) ALL FWLR (pt. 776) 399.

The appellants contended that they had adopted the correct procedure of raising the issue of jurisdiction at the preliminary stage of the case without delaying the proceedings in light of the penalty for late filing of pleadings prescribed by the AMCON statutory provisions thus placing the time for filing pleadings in abeyance, therefore the Court below was wrong to hold that the decision of the appellants’ learned counsel not to file the requisite pleadings along with the notice of preliminary objection did not place the issue of time in abeyance and therefore the penalty for late filing of the statement of defence as prescribed by AMCON statutory provisions imposed on the appellants by the Court below was made in error citing in support the cases of Onibudo v. Akibu (1982) ALL NLR 194, Ajayi v. Adebiyi (2012) ALL FWLR (pt. 634) 1, Adegbola v. Idowu (2018) ALL FWLR (pt. 944) 777, Aremo II v. Adekanye (2004) ALL FWLR (pt. 224) 212, Sifax (Nig.) Ltd. v. Migfo (Nig.) Ltd. (2018) 9 NWLR (pt. 1623) 128, Awote v. Owodunni (1987) 2 NWLR (pt. 57) 366 at 377, Ajilowura v. Disu (2006) ALL FWLR (pt. 333) 1613 at 1635.

The appellants contended that there was no

basis in law for the Court below to award costs against their learned counsel in favour of the respondent, because the reason given by the Court below for the award of the costs to the effect that the application was an attempt to frustrate the speedy trial of the action was untenable in that the appellants, as defendants at the Court below, were entitled to raise the issue of jurisdiction before filing their statement of defence; and that there was nothing unethical in the conduct of the appellants’ learned counsel in filing the application as to damnify him in costs of N100,000, showing the Court below did not exercise its discretion judiciously and judicially in awarding the costs against the appellants’ learned counsel which award should be set aside citing in support the cases of Ajayi v. Adebiyi (2012) ALL FWLR (pt. 623) 1, Isogun v. Afotan (2019) ALL FWLR (pt. 1005) 467 at 494, Union Bank of Nigeria Plc v. Astra Builders (W.A.) Ltd. (2010) ALL FWLR (pt. 518) 865 at 883, Prince Adetona v. Igele General Enterprises Ltd. (2011) 7 NWLR (pt. 1247) 535, University of Lagos v. Aigoro (1985) 1 NWLR (pt. 1) 14 at 148 (?), Eye v. F.R.N. (2018) ALL

FWLR (pt. 961) 1446 at 1467; upon which the appellants urged that the appeal should be allowed and the ruling of the Court below set aside and the action struck out for lack of jurisdiction.

The respondent argued in its brief, contrariwise, that she was created to, among other functions, recover funds or debts from Eligible Bank Assets (EBAS) which can be categorized as part of the internally generated revenue for the Federal Government, showing a dispute on every debt to be recovered by the respondent from EBAS comes within the jurisdiction of the Court below under Section 251(a) of the 1999 Constitution read with the definition of ‘revenue’ as income stream from which a state or municipality pays its obligations vide Black’s Law Dictionary 18th Edition read with Section 252(2) of the 1999 Constitution under which the AMCON Act was enacted in 2010, and subsequently amended in 2019, conferring additional jurisdiction on the Court below in virtue of Sections 50(1), 53(1) (b) and 60 of the AMCON Act, 2010, as amended, to entertain AMCON debt recovery cases.

The respondent argued that the appellants were not damnified for challenging

the jurisdiction of the Court below but for flouting Order 3 rule II (3) of the AMCON Proceeding Rules 2018, and should not be heard to complain as rules of Court are subsisting legislation governing practice and procedure in Court and are meant to be obeyed citing in support the case of Adegbola v. Idowu (year not supplied) AFWLR (pt. 944) 777.

The respondent argued that since the Court below noted that the appellants’ learned counsel was intentionally wasting time and delaying the hearing of the substantive case before it awarded N100,000 costs against him the exercise of discretion in the matter by the Court below was not manifestly wrong, arbitrary or reckless to warrant interference by the Court sitting on appeal citing in support the cases of Ojomo v. Access Bank (2019) LPELR-47054, Kelly v. Jowett (2009) NSWCA 278; accordingly, the respondent urged that the appeal should be dismissed in its entirety.

The appellants contended in the reply brief that they did not need to file statement of defence before raising preliminary point of law on jurisdiction of the Court citing in support the cases of Akintola v. Solano (1986) 2 NWLR (pt. 24)

598, Ajayi v. Adebiyi (2012) ALL FWLR (pt. 634) 1, Onibudo v. Akibu (1982) ALL NLR 194.

The appellants also contended in the reply brief that it is only where facts are required to establish the issue of lack of jurisdiction, which is not the case here, that statement of defence should be filed before raising the issue of jurisdiction as was the case of locus standi in Ajilowura v. Disu (2006) ALL FWLR (pt. 333) 1613.

The appellants further contended in the reply brief that the Court below having relied on the decision in the case of Ajayi v. Adebiyi (supra) to the effect that a defendant can object to jurisdiction of the Court before filing statement of defence, it ought not to have proceeded in a “volte-face” to penalise the appellants’ learned counsel for doing so.

The appellants finally contended in the reply brief that no discretion can be said to have been more arbitrarily exercised than in this case where the Court below awarded costs against the appellants’ learned counsel personally even after adopting the stand that the appellants were not obliged to file statement of defence before challenging the jurisdiction

of the Court below citing in support the case of Agu v. Commissioner of Police (2018) ALL FWLR (pt. 937) 1632.

Accordingly, in order to determine the issue of jurisdiction in this case, it is necessary to look at the statement of claim which is drafted in these (unedited) words –
“The Claimant hereby claims against the defendant as follows:
a. AN ORDER directing the Defendants to pay the sum of N39,126,937.69 as at 29th January, 2019 being the balance of the credit facility granted to the 1st Defendant and which said sum remains unpaid despite repeated demands.
b. AN ORDER FOR

SALE OF THE PROPERTY lying, situate and being at Balogun Village, near Alakia Village, Off Ibadan-Ife Road, Ibadan, Oyo State, registered as No. 50 in page 50 at Volume 2495 at the Oyo State Land Registry and which said property belongs to the 3rd Defendant who is the brother and surety of the 2nd Defendant and whose property was used as security for the facility granted to the 1st Defendant.
c. AN ORDER FOR THE SALE OF Mack Truck with plate number XM896KRD and DAF Truck with plate number XM895KRD belonging to the 1st Defendant and used as security for the facility availed.
d. AN ORDER for the payment of 15% of the sum of N39,126,937.69 being the accruable interest from January 2019 till judgment is delivered.
e. AN ORDER directing the defendant to pay the sum of N700,000.00 as costs of this action.”
It is clear from the collective perusal of the statement of claim (supra) that the respondent is seeking to recover a debt from the appellants as a statutory corporation established by the AMCON Act 2010, as amended, charged with the statutory responsibility to efficiently resolve the non-performing loan assets of the loan facility

granted the appellants by Fidelity Bank which became toxic or troubled and was acquired or bought over by the respondent. The dispute is therefore not between the appellants as individual customers of the bank and the bank in respect of transactions between the appellants as individual customers of the bank and the bank for the proviso to Section 251(1) (d) of the 1999 Constitution, as altered, to apply to oust the jurisdiction of the Court below in civil causes and matters connected with or pertaining to banking, among other things. Had Fidelity Bank sued the appellants at the Court below in respect of the loan transaction between it and the appellants then the proviso to Section 251(1) (d) of the 1999 Constitution would have applied to deprive the Court below of jurisdiction to entertain the action.
Section 251(1) (s) of the 1999 Constitution, as altered, empowers the National Assembly to create additional jurisdiction for the Court below. While Section 252 (2) thereof authorizes the National Assembly to make provisions conferring upon the Court below additional powers as may appear necessary and desirable to enable the Court below more

effectively exercise its jurisdiction. Pursuant to Section 251(1)(s) of the 1999 Constitution, the National Assembly enacted the AMCON Act No. 4 of 2010 which was subsequently amended by the National Assembly by the AMCON (Amendment No. 2) Act, 2019. The amendment of the AMCON Act, 2010 by the (AMCON Amendment) Act 2019 did not affect Sections 4 and 5 of the Principal Act No. 4 of 2010 on the objects and functions, respectively, of the respondent. For ease of reference Sections 4 and 5 of the Principal Act, as amended, are copied below-
“4. The objects of the Corporation shall be to –
(a) assist eligible financial institutions to efficiently dispose of eligible bank assets in accordance with the provisions of this Act;
(b) efficiently manage and dispose of eligible bank assets acquired by the Corporation in accordance with the provisions of this Act; and
(c) obtain the best achievable financial returns on eligible bank assets or other assets acquired by it in pursuance of the provisions of this Act having regard to-
(i) the need to protect or otherwise enhance the long-term economic value of those assets,<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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(ii) the cost of acquiring and dealing with those assets,
(ii) the Corporation’s cost of capital and other costs,
(iv) any guidelines or directions issued by the Central Bank of Nigeria in pursuance of the provisions of this Act; and
(v) any other factor which the Corporation considers relevant to the achievement of its objects.
5. The functions of the Corporation shall be to –
(a) acquire eligible bank assets from eligible financial institutions in accordance with the provisions of this Act;
(b) purchase or otherwise invest in eligible equities on such terms and conditions as the Corporation, with the approval of the Board of the Central Bank of Nigeria, may deem fit;
(c) hold, manage, realise and dispose of eligible bank assets (including the collection of interest, principal and capital due and the taking over of collateral securing such assets) in accordance with the provisions of this Act;
(d) pay coupons on, and redeem at maturity, bonds and debt securities issued by the Corporation as consideration for the acquisition of eligible bank assets in accordance with the provisions of this Act;

(e) perform such other functions, directly related to the management or the realisation of eligible bank assets that the Corporation has acquired, including managing and disposing assets acquired with the proceeds derived by the Corporation from managing or disposing of eligible bank assets acquired by it;
(f) take all steps necessary or expedient to protect, enhance or realise the value of the eligible bank assets that the Corporation has acquired, including –
(i) the disposal of eligible bank assets or portfolios of eligible bank assets in the market at the best achievable price,
(ii) the securitization or refinancing of portfolios of eligible bank assets, and
(iii) holding, realising and disposing of collateral securing eligible bank assets; and
(g) perform such other activities and carry out such other functions which in the opinion of the Board are necessary, incidental or conducive to the attainment of the objects of the Corporation.”
Sections 53(1), (2), (3), and (4) of the AMCON 2010 Act, as amended, provide thus –
“53. (1) The respective heads of Courts shall designate, in their respective jurisdictions,

one or more Courts exclusively, for hearing and determining civil causes or matters –
(a) connected with or pertaining to the acquisition, or realization of eligible bank assets and any collateral or security by which such eligible bank asset is secured in which the Corporation or a receiver appointed by the Corporation or the eligible financial institution from which the Corporation acquired the eligible bank asset is a party;
(b) relating to debt owed or alleged to be owed to the Corporation by reason of the Corporation’s acquisition of an eligible bank asset; or
(c) connected with or the pertaining to the exercise or intended exercise of power by the Corporation under this Act to recover debt owed to the Corporation or otherwise realise an eligible bank asset or take enforcement or realisation action in relation to any asset or property by which such eligible asset is secured.
(2) The number of Courts to be designated under Subsection (1) shall be determined by the relevant head of the relevant Courts having regard to the volume of such cases then pending or likely to be instituted in the relevant Court.
(3) Each Court

specially designated under Subsection (1) shall hear and determine within six months in the case of existing actions, from the date of the coming into effect of this section and in the case of new actions, within six months from the date of filing of such new action.
(4) Each head of Court shall issue or cause to be issued special practice directions applicable exclusively to the specially designated Courts for the expedited and accelerated hearing and determination of causes and matters before the specially designated Courts within the time limit stipulated under subsection(3).”(My emphasis).
Section 61(a) of the AMCON Act, 2010, as amended, goes on to supply the definition of “Court” mentioned in Section 53(1) (2), 3 and (4) of the AMCON Act, 2010, as amended, thus –
“Court” means the Federal High Court, the High Court of a State or the High Court of the Federal Capital Territory or other superior Court exercising original jurisdiction as may be applicable, same for the purpose of Sections 49 and 50(1) of this Act, the “Court” means the Federal High Court.”

Section 53(1) (b) (supra) read together with Section 61 (a) (supra) clearly and plainly confers jurisdiction on the Court below to hear and determine civil causes or matters relating to debt owed or alleged to be owed to the respondent by reason of the respondent’s acquisition of an eligible asset. See the case of University of Calabar v. AMCON and Ors. (supra) where the Court while interpreting Section 53(1) of the AMCON Act on the jurisdiction of the Federal High Court held per the lead judgment prepared by His Lordship, Obaseki-Adejumo, J.C.A., that –“There is no dispute that its debts have not been settled, it is simply asking AMCON to collect the debt and convert it to what the 2nd – 4th respondents owe it.
In this case the introduction of AMCON has selected by statute to be Federal High Court… as it is a relief connected with the debt recovery which by Section 53 of AMCON is within the context of Section 251(1) of the 1999 Constitution (as amended).”
His Lordship, Yakubu, J.C.A., (now of blessed memory) who presided put it in his characteristic lucidity in his own judgment that –
“However, the

Federal High Court had the additional jurisdiction to entertain and determine any other matter as may “in addition” be conferred on it by an Act of the National Assembly. One of such Acts of the National Assembly is the Asset Management Corporation of Nigeria (AMCON) Act Cap. A24 A – 2010 (as amended). Section 53 of the aforementioned AMCON Act donated the requisite jurisdiction of the Federal High Court to hear and determine matters relating to debt recovery as shown in paragraph 28 of the statement of claim…………”
His Lordship, Tukur, J.C.A., who was also on the panel agreed with the judgment. It is thus a unanimous judgment which is binding on the Court. For the Supreme Court had cause to restate in the fairly recent case of Honeywell Flour Mills Plc v. Ecobank (Nig.) Ltd. (2019) 2 NWLR (pt. 1655) 35 at 51 following the case of Usman v. Umaru (1992) 7 NWLR (pt. 254) 377 that under the doctrine of stare decisis, the Court of Appeal.
It does appear from the objects and functions of the respondent (supra) that the respondent looks to Eligible Bank Asset (EBAS) recovery primarily as income and returns

for the Federal Government. These income or returns from the EBAS recoveries would constitute part of the public revenue of the Federal Government within the meaning of Section 162(10) of the 1999 Constitution, as altered, which for convenience provides –
“162(10) For the purposes of Subsection (I) of this section “revenue” means any income or return accruing to or derived by the Government of the Federation from any source and includes –
(a) any receipt, however described, arising from the operation of any law;
(b) any return, however described, arising from or in respect of any property held by the Government of the Federation.
(c) any return by way of interest on loan, and dividends in respect of shares or interest held by the Government of the Federation in any company or statutory body.”(My emphasis).
There is the case of Ansaldo Nigeria Ltd. v. National provident Fund Management Board (1986) 4 NWLR (pt. 38) 761 where it was decided that the phrase ‘revenue of the Government of the Federation’ should be broadly construed to include all public monies which the Federal Government by itself or

through its agencies collects and receives from whatever source and in whatever manner.
Being therefore an agency of the Federal Government charged with the statutory powers and responsibility for debt recovery such debts when sought to be recovered by the respondent in an action in Court and are thus recovered would constitute revenue to the Federal Government within the jurisdiction of the Court below under Section 251(a) of the 1999 Constitution, as altered.
There is the judicial caution that since the Court is a creature of the Constitution and/or statute the jurisdiction of the Court is confined, limited and circumscribed by the statute creating it; that the Court is not hungry after jurisdiction; that judges have a duty to expound the jurisdiction of the Court but not to expand it as a Court cannot give itself jurisdiction by misconstruing a statute; because judges ought not to encroach or enlarge their jurisdiction as by so doing the Court will be usurping the functions of the legislature; and also that although the Courts have great powers, yet these powers are not unlimited but are bound by some line of demarcation vide the Supreme Court

case of African Newspapers of Nigeria Ltd. and Ors. v. The Federal Republic of Nigeria (1985) 2 NWLR (pt.6) 137 at 159 – 160.
The law is however settled that no cause of action is deemed to be beyond the jurisdiction of a Superior Court (such as the Court below) unless specifically expressed and clearly excluded or appear to be so plainly delimited vide the cases of Musaconi Ltd. v. Aspinall (2013) 14 NWLR (pt.1375) 435 at 464, Anakwenze v. Aneke (1985) 6 S.C. 41.
It follows that for the jurisdiction of the Court to be excluded, clear words must be used by the drafts person in the piece of legislation prohibiting or ousting the jurisdiction of the Court vide Adigun v. A.-G., Oyo State (1987) 1 NWLR (pt.63) 678 at 742. There are no such clear words in the 1999 Constitution, as altered, and the AMCON Act, 2010, as amended, excluding the jurisdiction of the Court below to entertain and determine AMCON causes and matters.
I conclude on the issue of jurisdiction that the action for the recovery of debt acquired by the respondent as constituted in the statement of claim (supra) is within the jurisdiction of the Court below, in my modest view,

as the jurisdiction of a Court is procedurally determined by the law conferring jurisdiction on it at the time the law comes into force vide Nigerian Communications Commission v. Motophone Ltd. and Anor. (2019) 14 NWLR (pt.1691) 1 at 30 – 31.

Order 13 Rule 2(1) (a) of the Federal High Court (Civil Procedure) Rules 2009, as amended, (rules of the Court below) requires a defendant who intends to defend the action to file a statement of defence which may include any preliminary objection he wishes to raise to the plaintiff’s action and Order 29 Rules (1) – (4) thereof requires preliminary objection on jurisdiction to be filed and taken along with the substantive action, in deserving cases likewise the intendment of the relevant provisions of the AMCON enactment stipulating penalty for late filing of statement of defence.
Paragraph 3.3 of the AMCON (Special Debt Recovery) Practice Direction 2013 requires that a defendant served with a claim bundle must file its representation notice and defence bundle within 10 days and by paragraph 3.5 thereof pleadings are closed after reply is filed within 5 days of service of the defence bundle, all

proceedings in AMCON cases are to be conducted from day to day, every weekend, but the Court may in the interest of justice sit on Saturdays vide paragraph 5.1 thereof; Section 53 (3) of the AMCON Act 2010, (as amended) (supra) allocated time-line of six (6) months for the hearing and determination of AMCON causes and matters by the Court below.
It is trite that a question of law or jurisdiction can be raised at any time in the proceedings. But where a statute including a rule of Court such as Order 13 Rule 2(1) (a) and Order 29 Rules 1 – 4 of the Rules of the Court below provides a specific procedure for raising such issue or matter, that procedure and no other procedure must be followed or complied with by the parties and the Court as rules of Court and statutory provisions for orderly and timely presentation of cases must be obeyed vide Oko v. State (2017) 17 NWLR (pt. 1593) 24 at 47 following Adejobi v. State (2011) 12 NWLR (pt. 1261) 347 at 367. See also MC Investments Ltd and Anor. v. Core Investments and Capital Markets Ltd. (2012) 12 NWLR (pt. 1313) 1 at 17, Ighedo v. P.H.C.N. Plc (2018) 9 NWLR (pt. 1623) 51, Ifeanyichukwu v. O.C.B. Ltd.

(2015) 17 NWLR (pt. 1487) 1, In Res: Abiola (2019) 12 NWLR (pt. 1685) 27 at 41.
Under the above extant rules of the Court below, where the defendant intends to question the jurisdiction of the Court below by filing a preliminary objection, the defendant is also expected to file a defence to the action concurrently with the preliminary objection, if the defendant desires to defend the action for the preliminary objection to be taken with the substantive action to avoid fragmentation of litigation and save precious judicial time and cost or expenses for the parties and the Court and above all expedite the proceedings for cheap, expeditious, efficient, fair and just dispensation of justice.
These rules of Court and the AMCON statutory provisions do not therefore deprive the appellants of the right to raise preliminary objection on jurisdiction at the earliest opportunity. Rather the said rules of court and the AMCON statutory provisions permit preliminary objection to jurisdiction to be raised at the threshold of the case with a rider that the defendant who intends to defend the action should file both the preliminary objection and the defence to

the substantive action which may be taken together or in one package by the Court to save time, cost and duplication of effort by the parties and the Court. The penalty prescribed by the AMCON statutory provisions is therefore potent signal that diligence should be observed in filing processes to fast-track litigation in AMCON causes and matters upon pain of penalty.
In C.B.N. v. Akingbola (2019) 12 NWLR (Pt.1685) 84 at 103, for example, the issue of jurisdiction was taken without filing a defence to the action for it to be heard together with the substantive action. It took ten (10) years for the Courts concerned to decide on an interlocutory ruling on jurisdiction. The Supreme Court frowned on the procedure in these words-
“The better course would have been for the Court to proceed with the hearing of the preliminary objection on jurisdiction and the main case, since an unfavourable ruling could be a subject of appeal after judgment. After all, jurisdiction can be raised at any time in any Court, even in the Supreme Court for the first time. See Bronik Motors Ltd. and Anor v. Wema Bank Ltd. (1983) 1 SCNLR P. 296, Usman Dan Fodio University v. Kraus Thompson Organisation Ltd.

(2001) 15 NWLR (pt. 736) P. 305.”
As explained in the case of Senate President v. Nzeribe (2004) 9 NWLR (pt. 878) 251 at 274 –
“…..saying that the issue of jurisdiction should be resolved first however does not mean that it should be resolved separately. It can be taken along with arguments on the merits of the case. The important thing is that the Court should first express its view on jurisdiction before considering the merits.
The advantage of so proceeding is that in the event of an appeal by any of the parties, it is easy for the Appellate Court to express its views on the decision of the Lower Court as to jurisdiction and merit of the case. This removes the necessity for two appeals – one as to jurisdiction and the other as to the merit of the case.”
Concerning the splitting of an issue of jurisdiction and taking it separately as a preliminary objection without filing a statement of defence for it to be taken with the substantive action, the Supreme Court observed, commented and lamented in the case of Amadi v. N.N.P.C. (2000) 10 NWLR (pt. 674) 76 at 100 thus –

“With the success of the plaintiff’s appeal before us the case is to be sent back to the High Court to be determined, hopefully, on its merits after a delay of 13 years. Surely, this could have been avoided had it been that the point was taken in the course of the proceedings in the substantive claim to enable any aggrieved party to appeal on both the issue of jurisdiction and the judgment on the merit in the proceedings as the case might be.”
It was also held in the case of Olorunkunle and Anor. v. Adigun and Ors. (2012) 6 NWLR (pt. 1297) 407 at 426 (per the lead judgment prepared by His Lordship, Okoro J.C.A. (now J.S.C.) that even where facts are needed to resolve an issue of jurisdiction an objection to jurisdiction can be heard together with the substantive matter and an appeal on both taken together, if need be. The fact that the Court below in relying on Ajayi v. Adebiyi (supra) held in part of the ruling that the appellants were entitled to file the application before filing their statement of defence did not detract from its correct decision on the issue that failure to file the defence along with the

preliminary objection attracted penalty under the relevant AMCON statutory provisions and the rules of the Court below on penalty for late filing of statement of defence in time conscious/bound AMCON causes and matters.
The important consideration to underscore here should be the decision of the Court below to the effect that the time to file statement of defence was not placed in abeyance during the duration of the litigation on the preliminary objection. I agree. After all an Appellate Court is concerned with the correctness of the decision arrived at by the Court below, not necessarily its reasoning unless the misdirection (if any) in the reasoning had caused the Court below to come to a wrong decision as to render the decision perverse or bad which was not the case here vide Mainstreet Bank Capital Ltd. v. Nigeria Reinsurance Corporation Plc. (2018) 14 NWLR (pt. 1640) 423 at 448 and Ukejianya v. Uchendu (1950) 13 WACA 45 at 46. The case of Sifax Ltd. v. Migfo Ltd (supra) did not decide on the abeyance or freezing of time to file pleadings while preliminary objection was pursued in the same proceedings but it dwelt on time not running for the

purpose of period of limitation of action while a party pursued his case in a Court without jurisdiction.
The Court below was accordingly right to hold that the penalty for default in filing the statement of defence applied to the delay in filing the statement of defence occasioned by the filing of the preliminary objection to jurisdiction without an accompanying statement of defence. Had both been filed by the appellants same would have been taken to promote and enhance speedy dispensation of justice and avoid the present scenario of piecemeal litigation by taking the preliminary objection to jurisdiction alone and litigating it up to the appellate ladder of adjudication leaving the substantive case hanging in the balance for an indeterminate and/or in some cases inordinate period of time.
The filing of any process and the rules of procedure for proceeding with and/or conducting litigation are assuredly presumed to be known by counsel who is considered to be in charge of the case in his professional capacity and must accept full responsibility for the conduct of the case for his client in Court vide Elias v. Ecobank (Nig.) Plc (2019) 4 NWLR

(pt. 1663) 381 at 405 where the Supreme Court held inter alia that counsel is expected to know the law and rules of Court vide Nyako v. Adamawa State House of Assembly and Ors. (2017) 6 NWLR (pt. 1562) 347 and Mosheshe General Merchants Ltd. v. Nigeria Steel Products Ltd. (1987) 2 NWLR (pt. 55) 110, for the proposition that counsel is in charge of his brief and must accept the negative or positive consequences of any action or step he takes for his client in a civil case.
Rules of Court, particularly as they relate to pleadings, which are designed to fast-track proceedings and ensure fair and speedy dispensation of justice between the parties should not have been ignored by counsel for the appellants who took the liberty for himself to conduct the proceedings, now on appeal, in the manner he chose for himself contrary to the procedure and practice laid down by the rules of the Court below and the AMCON statutory provisions vide Tabansi v. Tabansi (2018) 18 NWLR (pt. 1651) 279 at 303.
Rules of Court are very vital in the process of justice administration. They are meant to be obeyed. Failure to do so can be counterproductive or negatively costly at times. A

party who fails to obey rules of Court does so at his own peril and he can hardly be heard to complain vide Obaro v. Hassan (2013) 8 NWLR (pt.1357) 425 at 454 following Afolabi v. Adekunle (1983) 2 SCNLR 141.
For the sake of emphasis, I do not, with deference, appreciate the contention of learned counsel for the appellants that he was denied fair hearing in the award of costs against him. For it was held by the Supreme Court in the case of Akinsuwa v. State (2019) 13 NWLR (pt.1688) 161 at 202 that fair hearing means a trial conducted according to established rules formulated to ensure that justice is done to all the parties evenhandedly. Accordingly, no litigant, and perforce his counsel, has liberty to conduct his affairs in the Court, where procedure and practice are regulated by formal procedure rules, in a manner he chose for himself or according to his whims and caprices. The rules of Court, like orders of Court, are not made for decoration. They are meant to be obeyed and/or complied with. A party who ignores or disobeys the rules or orders of Court does so to his own peril or detriment. He cannot therefore be heard afterwards that the

Court, insisting that the rules or orders of the Court are obeyed, had violated his right to fair hearing following the cases of Egbo v. Agbara (1997) 1 NWLR (pt.481) 293, Ariori v. Elemo (1983) 1 SCNLR 1.
It has to be so, because rules of Court and statutory provisions that prescribe time-frame for doing things in the course of litigation and for which sanction for default is imposed are adjuncts of Section 36(1) of the 1999 Constitution, as altered, dealing with fair hearing in the determination of civil rights and obligation of a person within a reasonable time by the Court and are strictly construed in favour of time for the doing of the act or for the taking of procedural step in litigation. Accordingly, appellants’ learned counsel who is deemed to be abreast of the rules of Court and the AMCON statutory provisions relating to urgency in the determination of AMCON cases had the professional responsibility as owner of the brief to have obeyed and complied with the said rules of Court and the AMCON statutory provisions in the discharge of his professional duty to ensure diligence, speedy, timely, fair and just conduct of the time-bound

AMCON case in hand vide Ali Alaba International Ltd. and Anor. v. Sterling Bank Plc (substituting Equitorial Trust Bank Ltd) (2018) 14 NWLR (pt. 1639) 254 at 265 and 270 – –271 following the cases of Williams v. Hope Rising Voluntary Fund Society (1982) 1 -2 S.C. 145, Lauwers Import – Export v. Jozebson Industries Ltd. (1988) 3 NWLR (pt. 83) 429, Nestoil Ltd. v. Onuoha (2011) LPELR – 4590, Kraus Thompson Org. v. N.I.P.S.S. (2004) 17 NWLR (pt. 901) 44, Dornier Aviation (Nig.) AIEP Ltd. v. Oluwadare (2007) 7 NWLR (pt. 1033) 336.
Page 53 of the record shows that the learned counsel who was penalized in costs of N100,000 was the same learned counsel that filed the motion that raised preliminary objection to the jurisdiction of the Court below which the same learned counsel also argued in pages 88 – 90 of the record.
In awarding the costs of N100,000 against learned counsel for the appellants personally, the Court below took into account the fact that the application brought by learned counsel for the appellants was a calculated attempt to frustrate the quick dispensation of the substantive action. The Court below therefore gave

reason for the award of costs against learned counsel for the appellants.
I am of the considered opinion that the Court below exercised its discretion judiciously and judicially in awarding the costs of N100,000 against counsel for the appellants vide Order 25 Rules 13 and 14 of the Rules of the Court below entitling the Court below to award costs against counsel for the omission to do anything the doing of which would have been calculated to save costs and the doing of anything in a manner or at a time calculated to occasion unnecessary costs as well as the doing of any act that may cause any unnecessary delay in the proceedings, as in this case. I am therefore chary to interfere with the said proper exercise of discretion by the Court below.

In conclusion, I find no substance in the interlocutory appeal and hereby dismiss it and affirm the decision of the Court below. Parties to bear their costs.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the erudite judgment of my learned brother JOSEPH SHAGBOR IKYEGH JCA. I agree with my learned brother’s exhaustive consideration of the issues thrown up for determination in this appeal.

I must say that it is about time that counsel take personal responsibility for deliberately playing Russian Roulette with the cases of their clients and causing unnecessary delay in the prosecution of cases. The gendre of cases involving the Asset Management Corporation of Nigeria are by law time bound, and all efforts should be made by all stakeholders in the dispensation of Justice to handle them as such. I agree with all the orders of the Trial Court and the order of my learned brother. This appeal has no merit and is hereby dismissed.

EBIOWEI TOBI, J.C.A.: I have had the privilege of reading in draft the leading judgment of my learned brother. Joseph Shagbaor Ikyegh, JCA. My Lord has exhaustively analyzed all the issues presented in this appeal, leaving no stone unturned. On my part, I will like to make one or two comments on some salient trite principle of law. One of which is on the Respondent’s preliminary objection urging this Court to strike out the appeal. I have read through the record of appeal particularly the Respondent’s preliminary objection and states clearly that the preliminary objection cannot succeed as it is a trite principle of law

that a single competent ground of appeal can sustain the appeal. That is to say even if a Court holds that all the grounds of appeal are incompetent except one, for the sake of that one, the appeal can be sustained. I will like to put forth one or two cases to buttress this point. In Ekunola vs. CBN & Anor (2013) LPELR.20391 (SC).
Going further, in Governing Council of NTI. Kaduna and Anor vs. NASU (2018) LPELR-44557 (CA) this Court per Yahaya JCA posited thus: …”The above clearly shows that ground three is attacking a decision of the Trial Court on Section 40 of the 1999 Constitution (as amended). That alone, gives the appellant the right to appeal the decision, as a single competent ground can sustain an appeal even if there are other incompetent grounds – N.N.SL vs. ESTABLISHMENT SIMA OF VADUZ (1990) 7 NWLR (Pt. 164) 526 and YARKWA vs BARTA SHALLANGWA (SUPRA). That being the case, this appeal is competent. This has nothing to do with the merit of the ground.
See Abubakar vs. Waziri & Ors (2008) 14 NWLR (Pt. 507); Nwaolisah vs. Nwabufoh (2011) 14 NWLR (Pt. 1268) 600.

In light of the foregoing, I agree with my

learned brother when he said had the preliminary objection succeeded, only grounds 3, 4, 5 and 6 of the notice of appeal should have been struck out and not the entire appeal.

It is for this and the fuller reason given by my learned brother, Joseph Shagbaor Ikyegh, JCA that I find that this appeal lacks merit

Appearances:

Mr. B. Onadele For Appellant(s)

Mr. O. Olasope, SAN with him, T. Ige and B. Ofierohor, Esq., For Respondent(s)