UNIVERSITY OF ABUJA v. ASSET MANAGEMENT CORPORATION OF NIGERIA & ORS
(2019)LCN/13003(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of March, 2019
CA/L/655B/2017
RATIO
JURISDICTION: IMPORTANCE
Jurisdiction of a Court to adjudicate over any matter has been held to be a threshold issue. The jurisdiction of the Federal High Court to entertain a matter was decided in the case of AMCON v ESEZOOBO LPELR – 42700(CA);
“The starting point is to settle the fact that jurisdiction of the Federal High Court is determined by parties as well as the reliefs in the claim. It is not just who the parties are, see TERVER KAKIH V PEOPLES DEMOCRATIC PARTY & ORS (2014) LPELR- 23277 (SC) which held that when the jurisdiction of the Federal High Court is in issue, the following must co-exist. (a) The parties or a party must be the Federal Government or its agency. (b) Subject matter of the litigation. Satisfying the above is not the end of the matter. The pleadings of the plaintiff must be carefully examined so as to understand the facts and circumstances of the case in order to determine if the claims are within the jurisdiction of the Court. It is not enough to only have an agency of the Federal Government as a party for the Federal High Court to have jurisdiction. The claim of the party and the reliefs must be within the ambit of Section 251 of the Constitution.PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
SECTION 251 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA ON EXCLUSIVE THE EXCLUSIVE JURISDICTION OF THE FEDERAL HIGH COURT
The apex Court in the case of HON. GOODLUCK NANA OPIA V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR (2014) LPELR-22185 (SC) held as follows: “However, it must be noted that all the matters that fall within the exclusive jurisdiction of the Federal High Court under Section 251 of the 1999 Constitution (supra) have been specifically listed out. The legal implication is that the nature of the declaration or injunction being sought for it to be within the exclusive jurisdiction of the Federal High Court must be in respect of the major items enumerated under Section 251 (supra). The draftsman in no mistaken terms painstakingly itemized the subject matters that fall within the exclusive jurisdiction of the Federal High Court. See OLADIPO V NCSB (2009) 12 NWLR (Pt. 1156) 563 at 585. In OLUTOLA V UNILORIN (2004) 18 NWLR (Pt. 905) 416 at 462 this Court held inter alia: “The implication of this technique is that the said Federal High Court is actually a Court of enumerated jurisdiction that is a Court whose jurisdiction is not only delimited by Statute but whose jurisdiction is delimitated in relation only to the subject matters enumerated therein. It would therefore amount to wrecking havoc on the express letters and intendment of the said Section 251 to construct it as granting the said Court a carte blanche to deal with every conceivable matter that is beyond those expressly enumerated. The effect of the circumscription of the jurisdiction of the Court is canvassed, attention ought to be focused on the subject matter of the suit, if the subject matter of the suit cannot be pitch-forked into any of those eighteen major items, then that Court is not the proper forum for the ventilation of that action.” Certainly, subject matter is a major factor and as held in the quotation above, even the subject matter must be one of those specifically listed in Section 251 of the Constitution.PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
UNIVERSITY OF ABUJA – Appellant(s)
AND
1. ASSET MANAGEMENT CORPORATION OF NIGERIA
2. AFIHUB NIGERIA LIMITED
3. PROF MANNY ANIBONAM
4. VITALIS NDU
5. FEDERAL UNIVERSITY OF TECHNOLOGY, OWERRI
6. UNIVERSITY OF CALABAR
7. FEDERAL UNIVERSITY OF TECHNOLOGY, MINNA – Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This Appeal flows from the decision of the Federal High Court Lagos per I. N. BUBA, J delivered on 3rd of February 2017, the Notice of Appeal is dated 7th April, 2017 and filed on 14th April, 2017. The crux of this matter dwelt on the jurisdiction of the Court to hear the subject matter in the action.
A summary of the facts is that the suit was instituted by 1st Respondent as FHC/L/CS/1346/20015 as a special claim under the AMCON Act 2010 on 26th August, 2015 and same was initiated against the 2nd, 3rd and 4th Respondents herein.
The Appellant, 5th, 6th & 7th Respondents were joined via a third party notice filed by the 2nd – 4th Respondent in this appeal.
The Appellant had informed the Court earlier and the 2nd – 4th respondent sought an order to appoint assessors to determine the quantum of work done by 3rd and 4th respondent and liability if any. The relationship of the parties was a contract agreement to develop an ICT PROJECT at the Appellant?s main campus in Abuja which is completed; the facility was from Union bank which the 1st
1
Respondent seeks to recover.
At proceedings of 3rd February, 2017 which was slated for the 2nd – 4th respondents? application to appoint assessors, the 2nd ? 4th Respondent withdrew the application for summary judgment and applied orally. The Court gave a summary judgement for N 646,071,873 against the Appellant, hence the notice of appeal filed on 14th April, 2017.
?
The parties exchanged briefs after filing pursuant to Rules of Court of Appeal, the Appellant?s brief was filed on 2/11/18 deemed on 29/11/18 and redeemed on 14/2/19, while the Reply to 2nd-4th Respondents brief was filed on 12/12/18 deemed on 14/2/19 same were settled by Tale Talabi, Esq, Oliva Arikibi (Mrs), Mayor Ndukaku, Esq, Ephraim Chambers Of Tale Talabi & Co.
The Appellant formulated 3 issues for determination wit:
1. Whether the learned trial judge had the vires to have assumed jurisdiction over the third party Notice dated 27th April 2016 and filled on 19th May 2016 (ground 1,2,3 & 4)
2. Whether the trial judge was right when he relied on the letter dated 17th September 2014 written without prejudice by the
2
Appellant to the Hon Minister of Education and copied same to the Managing Director of the 2nd Defendant contrary to Section 196 of Evidence Act on admissibility of documents.
3. Whether considering the facts and circumstances of the facts culminating it the present appeal the judgement of the lower Court.
The 2nd-4th Respondent?s brief was filed on 26/11/18 deemed on 14/2/19 it was settled by Femi Falana San, Ikeazor Akariwe.
The 2nd – 4th Respondents hereby adopted issue 1 as formulated by the Appellants and formulated 2 others thus;
1. Whether the learned trial judge had the vires to have assumed jurisdiction over the third party Notice dated 27th April, 2016 and filled on 19th May 2016 (ground 1, 2, 3 & 4)
2. That the learned trial judge was correct when he relied on the averments made in the third party notice in granting the reliefs sought therein, the appellant having failed to enter a defence.
3. That the letter of 17th September 2014, written by the APPELLANT TO THE Minister of Education admitting liability to the 2nd-4th Respondent and asking the Minster to release TETFUND FUNDS to offset the debt was certainly admissible.
3
The 1st, 5th, 6th & 7th Respondents did not file any brief.
ISSUE (1-3)
The Appellant submitted that it?s the plaintiffs claim that vests jurisdiction, he relied on ADEYEMI v OPEYORI (1976) 9 ? 10 (SC) 31 at 51; AJOMALE v YADUAT (NO. 1) (1995) 5 SCNJ 172; SHELL PETROLEUM DEVELOPMENT COMPANY v ISAIAH (2001) 11 NWLR (PT 723) 168; AKEEM & ORS v UNIVERSITY OF IBADAN (2002) FWLR (PT 851) 221 at 223 , MADUKOLU & ORS v NKEMDILIM (1962) 1 ALL NLR 587; BRONIK MOTORS LTD v WEMA BANK LTD (1983) 1 SCNLR 256; ODOFIN v AGU (1992) 3 NWLR 354 (PT. 229) 350. On when a Court is said to have jurisdiction the subject matter and case comes before the Court initiated by due process of law. Appellant submitted that from the record the subject matter of the contention between the 2nd ? 4th respondent centres on the simple contract of providing ICT services at a fee.
On the nature of Third – Party Notice, he cited the case of OKONKWO v MODE NIGERA LTD & ANOR (2002) LPELR – 10981 (CA); OKAFOR v ACB LTD & ANOR (1975) 5 SC 89; UNION BANK OF NIGERIA LTD V BISI EDIONSERI (1988) 2 NWLR (PT. 74) 93,104.
4
On the issue that the lis of the substantive action is different from the 3rd party proceedings originating from it and that the 3rd party proceedings has a life and spirit of its own different from that of the substantive action.
Appellant argued further that the subject matter of the third party proceedings relates to simple contract of installation of ICT between the appellant and the 2nd -4th respondent, and contended that by Section 251 (p), (q), (r) and the proviso thereto. He argued that the lower Court lacked powers to enforce the contract between 2nd ? 4th Respondents and Appellant. He further submitted that the third party notice was to use the Courts forum to enforce their contract, as no party in law can confer or impose jurisdiction and payment of indebtedness if any was the remaining left outside the agreement. He relied on the following cases on the jurisdiction of the Federal High Court; ONUORAH v KPRC (2005) 6 NWLR (PT. 921) 140; PORTS & CARGO v MIGFO NIG LTD (2013) 3 NWLR (PT 1333) 555 at 591, 594, 608; NIGERIAN AIRWAYS LTD (IN LIQUIDATION) (2013) LPELR – 20742 (CA); SHITTU v NIGERIA AGRIC CORPORATION (2001) 10 NWLR (PT 721)
5
298 at 318 – 319; KASIKWU FARMS v AG BENDEL (1986) 1 NWLR (PT 19) 695; AFRICAN NEWSPAPER LTD v FRN (1985) 2 NWLR (PT. 6) 137 at 165; DOSUMU v NNPC (2014) 6 NWLR (PT. 1403) 285 at 317-318.
Appellant posit that the presence of a FEDERAL AGENCY with a land/trespass matter should not vest the Federal High Court with jurisdiction and so in this case the subject matter where the 3rd part proceeding was anchored ought not be entertained in this lower Court.
Appellant in addition faulted the initiating process of the third party notice that it was not in line of the Federal High Court Rules, he cite NIGERIAN NAVY & ORS v NAVY CAPT LABINJO (2012) 17 NWLR (PT 1328) 56 at 84.
He argued that the 3rd party notice was not brought under the AMCON Rules and that 2nd – 4th Respondents were business men and private venture and not AMCON. See page 508. Furthermore, the said notice was filed without the leave of Court he referred to Order 26 Rules 12 (2) of Federal High Court Rules, 2009. He stated that leave was granted on 21st April, 2016 to issue 3rd party notice and was adjourned to 26th May 2016 while the 2nd – 4th Respondent filed the 3rd party notice on
6
the 19th May, 2016 which was clearly outside the 14 days leave envisage by the order while 3rd party was to enter appearance within 8 days after service of the notice on her. He submitted that at 19th May 2016, the leave granted had expired thus rendering the notice non effectual, null and mere paper, same was filed less than 7days to the adjourned date without expecting them to enter appearance. This smacks of mala fide and therefore, it is defective, and robbed the Court of jurisdiction and an order on such an incompetent motion is invalid, he relied on OTU v ACB INTERNATIONAL BANK PLC & ANOR (2008) LPELR – (SC); ARDO v ARDO (1998) 10 NWLR (PT. 571) 700; OKPE v FAN MILK PLC & ANOR LPELR – 42562 (SC) on the effect of an incompetent process.
He urged the Court to resolve the issue in his favour.
?
The 2nd – 4th Respondents in reply submitted that pursuant to Section 53 of the AMCON Act, the Federal High Court has the jurisdiction to hear a matter on recovery of debts once it falls within its purview of AMCON as in this matter. He referred to the writ of summons and claim filed by AMCON against the 1st Respondent, it is deducible that AMCON
7
acted within its act and in furtherance of this, that all steps were taken, and that the purpose of the notice is not to enforce the contract between the 2nd – 4th Respondents and Appellant but to ensure payment to the 1st Respondent of the sum uncontested. He argued that the authorities are not apposite and not predicated on the sui generis nature of AMCON suits and should be disregarded, he referred to MERILL GUARANTY SAVINGS & LOAN LTD V WORLDGATE BUILDING SOCIETY LTD (2013) 1NWLR (PT 1336) 581.
The 2nd – 4th Respondents further disagreed that the claim of AMCON can be separated from the con of 3rd party notice and that the claim of AMCON together with that of 2nd – 4th Respondents determines jurisdiction. He submitted that the jurisdiction over AMCON is covered by Section 251(d) & (j) of the 1999 constitution (as amended) and are the principal questions in the action. He urged the Court to disregard the arguments of Appellant in this regard and relied on Order 9 Rules 17 – 25 of the Federal High Court Rules, 2013 (as amended) as specifically guiding 3rd party rules while Order 26 is the general rule. Counsel stated that the appellant did
8
not state in what ways the rules were not complied with. He cited the following cases; of KRAUS THOMPSON ORG v N.I.P.S.S. (2004) 17 NWLR (PT. 901) 44; EZEADUKWA
