FEDERAL UNIVERSITY OF TECHNOLOGY, OWERRI v. ASSET MANAGEMENT CORPORATION OF NIGERIA & ORS
(2019)LCN/12967(CA)
RATIO
WRIT OF SUMMONS: ALL WRITS TO BE SERVED OUT OF JURISDICITION MUST BE ENDORSED
The Sherriff and Civil Course of Act, 2004 by Part 97 enjoins that each writ of summons for service out of a state or Federal Capital along with every other endorsement required in a state shall be endorsed to the impact that it’s to be served out of the ..state …and within the …state. On this case a third celebration discover was served outdoors the Lagos division of the Federal Excessive Courtroom and had no such endorsement.
ORDER 6 RULE 31 FEDERAL HIGH COURT RULES, 2009 CONCERNING JURISDICTION
Order 6 Rule 31 of the Federal Excessive Courtroom Guidelines, 2009 has interpreted out of jurisdiction to imply out of the Federal Republic of Nigeria and the Apex Courtroom lately laid to relaxation the bickering over this compliances of Part 97 Sherriff and Civil Course of Act, 2004 within the case of AKEREDOLU V ABRAHAM (Supra) whereby all the Federation was held to be the jurisdiction of the Federal Excessive Courtroom and that out of jurisdiction” meant outdoors the Federal Republic of Nigeria.
PRACTICE DIRECTION: IMPORTANCE
In ORAEKWE & ANOR v CHUKWUDI & ORS (2010) LPELR – 9128 (CA), it was held thus;
“Apply Instructions, because the title implies, direct the observe of the Courtroom in a specific space of process of the Courtroom. A observe Course may be described as a written rationalization of the way to proceed in a specific space of legislation in a specific Courtroom.”
PRACTICE DIRECTION: WHAT IS A PRACTICE DIRECTION
“Apply Instructions, because the title implies, direct the observe of the Courtroom in a specific space of process of the Courtroom. A observe Course may be described as a written rationalization of the way to proceed in a specific space of legislation in a specific Courtroom – See; BUHARI v INEC (2008) 19 NWLR (PT. 1120) 246 SC, the place TOBI, JSC, additional added as follows –
“what’s the authorized standing of observe Instructions observe Instructions have the power of legislation in the identical manner as guidelines of Courtroom, I held in ABUBAKAR V. YAR-ADUA (2008) Four NWLR (Pt. 1078) 465 at 511 that guidelines of Courtroom embrace observe Course. – – Apply Instructions will, nevertheless, not have the power of legislation, if they’re in battle with the Structure or the statute which permits them.”
STATUTES: IMPORTANCE
The place a statue is concerned it can’t be waived, it should be complied with however on this stance it doesn’t have the power, the route has not been connected to the AMCON Act, it’s a information for the Courtroom case administration on AMCON instances made by the Chief Choose of Federal Excessive Courtroom.
On the time for supply of judgments, having not confirmed that it resulted in miscarriage of justice then its off no impact. In NWANGWU v UNN (2017) LPLER-43772, this Courtroom held thus;
“The onus is on the appellant to point out the character of the miscarriage of justice that occurred when the discovered trial Choose rendered determination outdoors the interval stipulated in Part 294(1) of the Structure. In Enekebe vs. Enekebe (1964) NMLR 42, Bairamian, F.J. held at web page 46 that, “…the trial Courtroom goes by the fabric offered to it, and the Courtroom of Attraction goes by the fabric within the file…” In view of the provisions of Part 294(5)-(6) of the Structure of the Federal Republic of Nigeria as altered.”
I resolve subject Three in favour of the respondent.
On the 4th subject, the Appellant within the fourth subject raised the standing of the Appellant being a public officer and so the motion was caught by the Public Officers Safety Act LFN, 2004 on the competition that the third celebration discover is in opposition to a public officer which is the Appellant, this subject has lengthy been settled by the Apex Courtroom in an extended line of instances that the statute of limitation doesn’t apply to contract, it’s the subject material that determines if the general public officer is to learn from the appliance.
It’s granted that the Appellant is established by statute and enjoys the safety of the Public Officers Act however having admitted that the subject material is easy contract due to this fact it doesn’t apply to it. See; ROE LTD V UNN (2018) LPELR 43855(SC) the place the Supreme Courtroom in a current determination reiterated the precept on “Whether or not the Public Officers Safety Act applies to instances of contract;
“…I solely agree with discovered counsel for the Appellant that the Public Officers Safety Act doesn’t apply to instances of breach of contract for work achieved or restoration of debt. This Courtroom in F.G.N v Zebra Power Ltd (2002) 18 NWLR (Pt.798) 162 at 196 held: “The Public Officer Safety Act was not meant by the legislature to use to contracts. The legislation doesn’t apply in instances of restoration of land, breaches of contract or for claims for work and labour achieved.” See N.P.A V CONSTRUZION (1974) 1 ALL NLR (Pt. 11) 463; SOULE v L.E.D.B (1965) L.L.R 118.”
per GALINJE, J.S.C (PP. 21-22, PARAS. D-A).
I resolve this subject in favour of the Respondent.
The Appellants subject 5 and Respondents subject six are very related with slight variations, decision of every one might be interwoven and overlap as a result of they come up from the identical information, I shall resolve them collectively.
The Appellants contended that the letter 07/01/15 signed by the Vice Chancellor Of FUTA, Owerri addressed to the Honourable Minister of Schooling was correctly earlier than the Courtroom as an exhibit and whether or not the stated letter consisted of admissions of any aid claimed by 2nd – 4th respondent within the con of Order 15 of Federal Excessive Courtroom Guidelines and Half Xi of AMCON Apply Course.
The Appellants pleaded it in particulars and it was additionally exhibited by a few of the Respondents of their processes as entrance loaded paperwork within the third celebration course of. The third celebration discover was in opposition to the three of them and every of them filed separate processes, for instance; the primary set of Defendants filed a Counter Affidavit of Pleasure Okezie-Paul to Preliminary Objection of 4th third celebration of the third celebration and connected the letter as an Exhibit in defence at web page 1011-1013 of the file, the place he acknowledged in paragraph Three therein and referred to the College of Abujas letter signed by the Vice Chancellor to the Honourable Minister of Schooling dated 17/9/2014. In PDP v EZEONWUKA & ANOR (2017) LPELR 42563 (SC) on the problem of whether or not the Courtroom is entitled to take a look at its file or file and make use of the contents, the Courtroom held thus;
“The legislation is that as a way to do substantial justice between the events, the Courtroom is entitled to take a look at its file or file and make use of the contents. See: FUMUDOH VS ABORO (1991) 9 NWLR (PT. 214) 210 @ 229 E; AGBAREH VS MIMRA (2008) 2 NWLR (PT.1071) 378 @ 411-412 H-C; FUNDUK ENG. LTD. VS MCARTHUR (SUPRA); WOMILOJU VS ANIBIRE (2010) 10 NWLR (Pt. 1203) 545 @ 561 G. The inclusion of those processes within the file transmitted from the Courtroom under presupposes that they kind a part of the file of proceedings earlier than that Courtroom.”
per KEKERE-EKUN, J.S.C ( PP. 77, PARAS. A-D)
Due to this fact, there’s nothing improper with a Courtroom utilizing the letter. Be that as it could, I’ve once more learn the judgement delivered on 3/2/17 beneath attraction at web page 1192 of the Document and discover that in all the determination spanning 5 pages, there was no the place the decide relied on the letter as admission. It was the pleading in paragraph Three of the assertion of defence repeated extensively, that was reproduced on the third web page of the choice, and due to this fact, this side of the problem is misconceived.
The competition that the abstract judgement ought to not be, in KHALID v AL-NASIM TRAVEL & TOURS LTD & ANOR (2014) LPELR- 22331 (CA);
“The entire goal of a abstract judgment process is to make sure justice to a plaintiff and reduce delay the place there’s clearly no defence to his declare and thus stop the grave injustice that may happen by way of a protracted and immensely frivolous litigation. It’s to stop sham defence from defeating the suitable of a plaintiff by delay and thus inflicting nice loss to a plaintiff. In different phrases, the abstract judgment guidelines are specifically made to assist the Courtroom obtain their major goal, i.e. to do justice to the events by listening to their instances on the benefit with utmost dispatch and stop the frequent outcry that justice delayed is justice denied – United Financial institution for Africa Plc Vs Jargaba (2007) 11 NWLR (Pt 1045) 247, College of Benin Vs Kraus Thompson Organisation Ltd (2007) 14 NWLR (Pt 1055) 441.”
per ABIRU, J.C.A (PP. 31, PARAS. C-F)
Order 15 (4) of the Federal Excessive Courtroom (Civil Process) Guidelines offers for judgment or order upon admission of information, thus;
The Choose could, on software at any stage of the proceedings the place admissions of information have been made both on the pleadings or in any other case, make such orders or give such judgment as upon such admissions a celebration could also be entitled to, with out ready for the dedication of every other query between the events.”
Paragraph Three of the Appellants assertion of Defence, acknowledged as comply with;
3. The first Third celebration denies paragraph 21 of the Amended assertion of Defence in that it’s not owing billions of Naira to the first set of Defendants or any quantity in any respect. It additional states that the sum of N535, 060, 570.00 which the primary set of defendants of Defendants now declare from it had earlier been agreed to be paid by the Federal Ministry of Schooling by way of the Tertiary schooling Belief Funds (TETFUND).
From the provisions of the Guidelines of Courtroom, the Courtroom can at any stage so long as there’s an admission of information on the pleading. The crux of the Authentic swimsuit was for debt owed to union financial institution which have been stated to be within the arms of the third events therefore the third celebration discover. The appellant ten in flip talked about that they owed a specific quantity which the NUC had wished to offset by way of the TERTFUND, due to this fact why wait when it’s unequivocal voluntary info which meets the declare on floor.
Abstract process is such that’s achieved so as to not waste the time of the Courtroom, as soon as it’s entered the steadiness if any will be litigated upon by way of proof at trial.
Having gone by way of the pleadings and entrance loaded paperwork, I’m of the standard opinion that it left the decide no likelihood however to go for the jugular.
The Apex Courtroom had trigger to pronounce on this in BUHARI v INEC & ORS (2008) LPELR- 814 (SC);
“Within the legislation of pleadings, admission should be unequivocal; not speculative or primarily based on conjecture. The opposed celebration admitting should depart the Courtroom in little doubt as to the actual fact admitted.”
per TOBI, J.S.C (PP. 166, PARAS. C-D)Once more the Apex Courtroom in ZENITH PLASTICS V SAMOTECH LTD (2007) LPELR 8260 (CA) held on the impact of admission of pleadings; and the angle of the Courtroom to such admission thus;
“Part 75 of the Proof Act offers that information admitted needn’t be proved. See Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) p. 566: N.E.P.A. v. El-Fandi (1986) Three NWLR (Pt. 32) p. 884: Utteh v. State (1992) 2 NWLR (Pt. 223) p. 257; Din. v. African Newspapers Ltd. (1990) Three NWLR (Pt. 139) p. 392. An admission in pleadings is receivable in opposition to the maker as a waiver of proof. That’s to say as a waiver of all controversy. No proof of the admission is required On this case, the truth that the appellant is indebted to the respondent within the sum of N502,400, representing steadiness on the contract sum of N1,502,400 has been admitted by the appellant. The discovered trial Choose was due to this fact proper to carry that the appellant is indebted to the respondent for the stated sum of money. Courts of legislation are to find out dwell points and never be engaged or indulged in tutorial train. See Bamgboye v. Unilorin (1999) 10 NWLR (Pt. 622) p. 290: Oyeneye v.Odugbesan (1972) Four SC p. 244; Bakare v. A.C.B. Ltd. (1986) Three NWLR (Pt. 26) p. 47; Obi-Odu v. Duke (No.2) (2005) 10 NWLR (Pt.932) p. 105. It will quantity to an instructional train to spend treasured judicial time sifting by way of proof, oral and documentary to see whether or not the appellant is indebted to the respondent within the sum of N502,400, when the appellant has admitted that truth. All submissions of the appellant’s discovered counsel denying its indebtedness to the respondent, fades into insignificance within the mild of clear admissions by the appellant in paragraph 26 of its pleadings.”
per RHODES-VIVOUR, J.S.C ( PP. 27-28, PARA. B)
Within the mild of the above precedents, I’m unable to fault the way the abstract judgement was entered taking into consideration that beneath AMCON issues time is of essence it’s an aggressive drive for restoration of funds given out as loans which had not been paid again, the establishment is such that these funds are revolving and as soon as there’s a break within the circle it leads to financial sunamies, banks go bankrupt, jobs are misplaced and companies fold up, this triggers multiples unfavourable impact on the Nigerian business nerve.
It’s alarming that a lot funds have been pumped into the tutorial system to maneuver it ahead and the tutorial establishments took it with laxity refused to pay these monies into union financial institution and now cry foul on the pragmatic aggressive restoration system of the AMCON Act.
I’ve no hesitation in resolving this subject in favour of the 2nd – 4th respondents.
On the entire having resolved the problems in opposition to the Appellant, the attraction fails and is dismissed. The judgement of the Federal Excessive Courtroom is affirmed and
