AMERICA SPECIFICATION AUTOS LIMITED & ANOR v. ASSET MANAGEMENT CORPORATION OF NIGERIA
(2017)LCN/9461(CA)
In The Court docket of Attraction of Nigeria
On Friday, the seventh day of July, 2017
CA/L/66/2013
RATIO
APPEAL: DO PARTIES REQUIRE LEAVE OF THE COURT FOR APPEAL FROM THE ORDER OF EX PARTE INJUNCTION
Part 241(1)(f)(ii) of the 1999 Structure gives that –
“An enchantment shall lie from selections of the Federal Excessive Court docket or a Excessive Court docket to the Court docket of Attraction as of proper within the following casesWhere an injunction…is granted or refused.”
By dint of Part 241(1)(f)(ii) of the 1999 Structure (supra) the enchantment from the order of ex parte injunction is as of proper and the appellants didn’t require the go away of the Court docket earlier than submitting it. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
APPEAL: THE POSITION OF LAW RELATING TO PROLIFERATION OF ISSUES FOR DETERMINATION BY COURT
Floor 10 of the discover of enchantment is argued underneath points 2 and three which is dangerous as proliferation of points shouldn’t be permitted: a difficulty could cowl a number of grounds of enchantment however in no way ought to a floor of enchantment be argued underneath two points. Neither is the Court docket allowed to surgically separate such points to avoid wasting the arguments thereon. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
ORDER: THE PURPOSE OF EX-PARTE INJUNCTION
An exparte utility is a baby of circumstance designed to guard the sanctity of a go well with earlier than the res is destroyed. Nevertheless, whereas it’s true that exparte injunctions are supposed to be quick lived pending the date when the movement on discover shall be heard, see KOTOYE V CBN (1989) 1 NWLR (PT.98) 419, this case falls inside the exceptions as supplied for by the AMCON Act for the preservation of the res. I’m subsequently of the opinion that granting of such an order shouldn’t be unconstitutional so long as it doesn’t work hardship on the opponent. PER YARGATA BYENCHIT NIMPAR, J.C.A
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court docket of Attraction of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court docket of Attraction of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court docket of Attraction of Nigeria
Between
1. AMERICA SPECIFICATION AUTOS LTD
2. CHIEF FELIX CHUKWUDI AMAEFUNA Appellant(s)
AND
ASSET MANAGEMENT CORPORATION OF NIGERIA Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Main Judgment): The respondent’s utility for ex parte orders for possession of Four landed property situated in Lagos State and for the freezing of the financial institution accounts of the appellants have been granted by the Federal Excessive Court docket sitting in Lagos (the Court docket beneath), occasioning the enchantment.
The respondent filed preliminary objection to the enchantment which she argued within the respondent’s transient to the impact that grounds 3, 5, 8, 9 and 10 of the discover of enchantment are a mixture of information and combined legislation and reality emanating from an interlocutory determination subsequently the failure by the appellants to acquire the go away of the Court docket to file and argue the mentioned grounds of enchantment render the grounds incompetent which ought to be struck out citing in assist the circumstances of Ohajunwa v. Obelle (2008) Three NWLR (Pt.1073) 52 at 72 – 73, Nwekeson v. Onuigbo (1991) Three NWLR (Pt.178) 125 at 131, Bello v. Pategi (2000) Eight NWLR (pt.667) 21 at 29, Nasiru v. Bimdawa (2006) 1 NWLR (Pt.961) (no pagination), First Fuels Ltd. v. N.N.P.C. (2007) 2 NWLR (pt.1018) 276 at 293 and 295, Akaaer Jov. V. Kutuku Dom (1999) 9 NWLR (pt.620) 538, Part
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242(1) of the 1999 Structure.
The respondent additionally argued that the bottom 7 of the discover of enchantment didn’t come up from the choice of the Court docket beneath and doesn’t have particulars and ought to be struck out citing in assist Bunwanhot v. Bunwanhot (2009) 16 NWLR (Pt.1166) 22 at 40, Nwankwo v. Ecumenical Growth Co-operative Society EDCS U.A. (2007) 5 NWLR (pt.1027) 377, Obi v. INEC (2007) 11 NWLR (Pt.1046) 105 vide Lucas Pharm Ltd. v. Roche (Nig.) Ltd. (1996) 1 NWLR (Pt.360) 28 at 35 – 36, Nwako v. Governor, Rivers State (1989) 2 NWLR (Pt.104) 470 and Order 7 Rule 2 of the Court docket of Attraction Guidelines 2016; and that since go away was not sought to file and argue grounds 3, 5, 8, 9 and 10 of the discover of enchantment and floor 7 thereof doesn’t come up from the choice of the Court docket beneath and doesn’t even have particulars the situation precedent to vest the Court docket with the jurisdiction to entertain the mentioned grounds of enchantment is absent consequently the mentioned grounds of enchantment ought to be struck out for incompetence and wish of jurisdiction citing in assist the case of Madukolu and ors. v. Nkemdilim (1962) All NLR (Pt.2) 581 at 583.
?It was additionally argued that subject
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one of many appellants’ points for dedication having been distilled from incompetent grounds 3, 5 and 6 of the discover of enchantment and from grounds 1, 2 and Four that are competent ought to be struck out vide Ngige v. Obi (2006) 14 NWLR (Pt.999) 1 at 108; that it’s mistaken for the appellant to distill a couple of subject (points two and three) from a single floor of enchantment (floor 10) videIbe v. Ibe (2008) All FWLR (pt.405) 1719 at 1725: consequently the respondent urged that the preliminary objection be upheld and the enchantment struck out.
The reply transient of the appellants filed on 16-05-17 contended that the grounds of enchantment arose from determination on injunction which by Part 241(1)(f)(ii) grants the appellants the appropriate to enchantment as of proper and likewise as grounds 3, 5, 7, 8, 9 and 10 of the discover of enchantment query the propriety of granting an injunction with out listening to the appellants is jurisdictional and doesn’t require the go away of the Court docket vide Part 241(1)(b) of the 1999 Structure, the preliminary objection ought to be dismissed.
Part 241(1)(f)(ii) of the 1999 Structure gives that –
“An enchantment shall lie from selections of the Federal Excessive
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Court docket or a Excessive Court docket to the Court docket of Attraction as of proper within the following circumstances ?
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The place an injunction?. is granted or refused.”
By dint of Part 241(1)(f)(ii) of the 1999 Structure (supra) the enchantment from the order of ex parte injunction is as of proper and the appellants didn’t require the go away of the Court docket earlier than submitting it.
As well as, a detailed have a look at the grounds of enchantment in pages 262 -267 of the document reveals that they’re complaining of denial of truthful listening to which is constitutional and thus grounds of legislation which don’t require the go away of the Court docket earlier than submitting and arguing them on the enchantment vide Part 241(1)(b) of the 1999 Structure learn with the circumstances of Loveleen Toys Ind. Ltd. v. Komolafe (2013) 14 NWLR (pt.1375) 542, in addition to the circumstances of Akinyemi v. Odu’a Funding co. Ltd. (2012) 17 NWLR (Pt.1329) 209 at 232-233,Rabiu v. Adebajo (2012) 15 NWLR (pt.1322) 125 which enjoin the Court docket to scrutinize
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the grounds of enchantment for the aim of ascertaining from their couching whether or not they’re in actuality grounds of legislation or of combined legislation and reality or of reality.
Floor 7 of the discover of enchantment in web page 465 of the document has the criticism thereon succinctly setting particulars of the bottom there in vide Finest Nigeria Ltd. v. B.H. (Nig.) Ltd. (2011) 5 NWLR (Pt.239) 95 at 115. Floor 7 of the discover of enchantment additionally arose from the choice of the Court docket beneath to not take into account the argument on the request for a discharge of the mareva injunction and is thus an appealable determination vide Akpan v. Bob (2010) 17 NWLR (Pt.1223) 421.
Floor 10 of the discover of enchantment is argued underneath points 2 and three which is dangerous as proliferation of points shouldn’t be permitted: a difficulty could cowl a number of grounds of enchantment however in no way ought to a floor of enchantment be argued underneath two points. Neither is the Court docket allowed to surgically separate such points to avoid wasting the arguments thereon.
The online result’s that points 2 and three are grief stricken along with the arguments thereon which relate to grounds 7, Eight and 10 of the discover of enchantment and are hereby struck out.
?Solely subject 1 survives.
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It was argued underneath subject 1 that by granting the ex parte order of injunction to final till the dedication of the substantive go well with, the Court docket beneath exceeded its jurisdiction and violated its guidelines in a matter that didn’t name for actual urgency which additionally denied the appellant’s rights to truthful listening to, extra so there was no pending movement on discover upon which to base the ex parte order of injunction vide Part 36 of the 1999 Structure learn with Kotoye v. CBN (1989) 1 NWLR (pt.98) 419, Order 12 Rule 1(1) and (2) and Order 26 Guidelines (1), (2) and (3) of the Federal Excessive Court docket (Civil Process) Guidelines 2009 (guidelines of the Court docket beneath), F.B.N. Plc v. T.S.A. Ind. Ltd . (2010) 4 – 7 SC (Pt.1) 242 at 285 – 286, 7-UP Bottling Co. Ltd. v. Abiola and Sons Ltd. (1995) Three NWLR (pt.383) 257 at 280 and Sections 49 and 50 of the Asset Administration Company of Nigeria (AMCON) Act, 2010.
It was argued within the various that assuming that Sections 49 and 50 of AMCON Act authorises an ex parte order of injunction to final till the dedication of the substantive go well with, the mentioned sections can be in battle with Part 36 of the 1999 Structure and will, on that
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foundation, be declared unconstitutional underneath Part 1(3) of the 1999 Structure learn with the case of INEC v. Musa (2003) 1 SC (pt.1) 106 at 124 and that the breach of the appellants proper to truthful listening to nullified the entire proceedings vide Iwuoha v. Okoroike (1992) 2 NWLR (Pt.429) 231.
The respondent argued that the ex parte orders have been made pursuant to Sections 49 and 50 of AMCON Act 2010 for the N246,411,797.39 indebtedness of the appellants, not underneath the foundations of the Court docket beneath, and don’t require proof of urgency and that the preservative orders are at all times issued ex parte to restrain the defendant from disposing of or coping with some other property inside jurisdiction and/or disposing of the property and was rightly issued by the Court docket beneath, so contended the respondent putting reliance on Sotuminu v. Oceanic Steamship Nigeria Ltd. (1992) 5 NWLR (pt.239) 1 at 25, AIC Ltd. v. NNPC (2005) 1 NWLR (Pt.937) 563 at 593, Injunctions and Enforcement of Orders by Afe Babalola SAN; and that by Sections 44(2) of the 1999 Structure, Sections 49 and 50 of AMCON Act makes the latter constitutional; consequently, the respondent argued that the Court docket beneath
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was proper in refusing to put aside the ex parte orders of injunction.
Momentary injunction whether or not ex parte or on discover are constitutional. There’s nothing unconstitutional about an ex parte injunction. See 7-UP Bottling Go. Ltd. v. Abiola and Sons Ltd. (1995) Three NWLR (pt.383) 257, 277 and 280 thus –
“If, because it was argued within the case, the discovered trial Decide couldn’t correctly decide any contentious subject when the movement ex parte for an order of interim injunction got here earlier than him, the query of giving a possibility of being heard to the appellants earlier than figuring out the applying couldn’t come up and the provisions of Part 33(1) of the Structure weren’t relevant and weren’t violated ….” (per the lead judgment ready by Adio, J.S.C., in web page 277 of the legislation report).
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“?In each prison and civil proceedings, there are particular steps to be taken that are incidental or preliminary to the substantive case. Such steps embody motions for path, interim or interlocutory injunction. The time obtainable for taking the steps could also be too quick or an emergency state of affairs could have arisen. It subsequently, turns into essential to take fast motion so as to search treatment for or arrest the state of affairs. It’s in respect of such circumstances that provisions are made in Court docket guidelines to allow the social gathering affected to make ex parte functions. The orders to be made by the Court docket, in contrast to last selections, are non permanent in nature, so they don’t decide the “Civil rights obligations” of the events within the proceedings as envisaged by the structure”. (per Uwais, J.S.C., in web page 280 of the legislation report).
and
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Chairman, E.F.C.C. v. Akingbola (2012) 9 NWLR (Pt.1306) 475, Provisional Liquidator, Tapp Trade v. Tapp Trade (1995) 5 NWLR (pt.393) 9, Extraction System and Commodity Providers Ltd. v. Nigel Service provider Financial institution (2005) 7 NWLR (pt.924) 215.
The exparte order issued within the case was not based mostly on the foundations of the Court docket beneath. It was based mostly on the particular enactment of AMCON. The place there’s normal laws and particular laws on the identical material the particular laws prevails vide Abubakar v. Nasamu (No.2) (2012) 17 NWLR (pt.1330) 523 at 576 following Bamgboye v. Administrator-Common (1994) 14 WACA 616 and Schroder v. Main and Co. (Nig.) Ltd. (1989) 2 NWLR (pt.101) 1 at 19. Additional if the overall laws is subsidiary like the foundations of Court docket, and the particular laws is on substantive legislation, the latter prevails. The provisions of AMCON Act on ex parte injunction thus take predence over the native guidelines of the Court docket beneath.
Typically, ex parte orders of injunction have restricted life span. They don’t outlive the dedication of the case. See Okafor v. A.-G., Anambra State (1991) 6 NWLR (pt.200) 659) at 678, Adefulu v. Oyesile (1989) 5
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NWLR (Pt.122) 377.
In distinctive circumstances, nevertheless, exception to the overall rule may very well be acknowledged. Such is the case with AMCON. By Sections 49 and 50 of AMCON Act 2010, a Court docket can subject an ex parte injunction pending the dedication of the case to save the res (cash or property) from dissipation or disappearance from the jurisdiction of the Court docket.
Ex parte order of injunction is subsequently a verital arsenal to curb surreptitious defendant from bolting away and out of jurisdiction with property that may meet the judgment debt on the finish of the trial. The order given known as Mareva. It’s akin to an interim judgment. The defendant needn’t be placed on discover or heard earlier than it’s issued. It is sort of a sting operation (if I could put it so).
The aim of such ex parte injunction could also be defeated if the defendant has advance discover of it, because the factor of shock which is the linchpin of the judicial facility or process will likely be blown open letting the defendant free to put off the property that ought to have been obtainable for settlement of the judgment debt vide 7-UP Bottling Co. Ltd. v. Abiola and sons Ltd. (supra) 280, Mareva Firm Naviera
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S.A. v. Worldwide Bulkcarriers S.A. (1975) 2 Lloyd’s Report 509, Anyanwu v. The Chairman EFCC (2013) Three BFLR 74 at 105.
Within the occasion an ex parte injunction was issued, the social gathering affected could pray the issuing Court docket to have it put aside in applicable circumstances, thus fulfilling the constitutional proper to truthful listening to vide 7-Up Bottling Co. Ltd. v. Abiola and Sons Ltd. (supra).
On the entire, I see no advantage within the enchantment and hereby dismiss it and affirm the choice of the Court docket beneath, (Abang, J.).
YARGATA BYENCHIT NIMPAR, J.C.A.: I’ve learn in draft the judgment simply delivered by my discovered brother JOSEPH SHAGBAOR IKYEGH, J.C.A. and I agree with the reasoning and conclusion reached.
An exparte utility is a baby of circumstance designed to guard the sanctity of a go well with earlier than the res is destroyed. Nevertheless, whereas it’s true that exparte injunctions are supposed to be quick lived pending the date when the movement on discover shall be heard, see KOTOYE V CBN (1989) 1 NWLR (PT.98) 419, this case falls inside the exceptions as supplied for by the AMCON Act for the preservation of the res. I’m subsequently of the opinion that
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granting of such an order shouldn’t be unconstitutional so long as it doesn’t work hardship on the opponent.
I additionally dismiss the enchantment and abide by all of the consequential orders made within the lead judgment.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I’ve learn in draft the lead judgment of my discovered brother, JOSEPH SHAGBAOR IKYEGH, JCA. He has handled the only real subject on this enchantment comprehensively and I undertake his lordship’s reasoning and conclusion as mine.
I simply want to add that simply proceedings bordering on the provisions of Asset Administration Company of Nigeria (AMCON) Act, is sui generis and the foundations relevant thereto, in relation to the life span of an ex parte order is distinct from those obtainable in bizarre civil proceedings. To this extent, this doesn’t have an effect on the validity of an ex parte order made to final past a restricted time; it isn’t rendered unconstitutional merely as a result of it’s made pending until the dedication of the res.
Part 49 of the Act makes provision for the custody and possession of a debtor’s property. It states:
?(1) The place the Company has cheap trigger to imagine
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{that a} debtor or debtor firm is the bona fide proprietor of any movable or immovable property, it could apply to the Court docket by movement ex-parte for an order granting possession of the property to the Company.
(2) The Company shall serve an authorized true copy of the order of the Court docket issued pursuant to Subsection (1) of this part on the debtor or debtor firm.
(3) The Company shall start debt restoration motion towards the debtor or debtor firm in respect of whose property an order subsists pursuant to Subsection (1) of this part inside 14 days from the date of the order, failing which the order shall lapse.
Then again, Part 50 gives for attachment and freezing of debtor’s checking account. It states:
(1) The place the Company has cheap trigger to imagine {that a} debtor or debtor firm has funds in any account with any eligible monetary establishment, it could apply to the Court docket by movement ex-parte for an order freezing the debtor or debtor firm’s account.
(2) The Company shall start debt restoration motion towards a debtor or debtor firm whose account has been frozen by a Court docket order issued underneath
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Subsection (1) of this part inside 14 days from the date of the order failing which the order shall lapse.
In my modest view, the act of the Respondent achieved pursuant to the above provision doesn’t contravene the availability of Part 44(1) of the 1999 Structure. On this smart, I agree that the enchantment is unmeritorious as there isn’t any doubt that the discovered trial decide appropriately utilized the place of the legislation as relevant within the prompt. In the identical phrases because the main judgment, I additionally discover the enchantment to be with out advantage and dismiss identical accordingly.
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Appearances:
Mr. J. DuruFor Appellant(s)
Mr. C. Nneke with him, Mr. F. IhedoroFor Respondent(s)
Appearances
Mr. J. DuruFor Appellant
AND
Mr. C. Nneke with him, Mr. F. IhedoroFor Respondent
