ASSET MANAGEMENT CORPORATION OF NIGERIA v. CAPITAL OIL AND GAS INDUSTRIES LIMITED (2019)

ASSET MANAGEMENT CORPORATION OF NIGERIA v. CAPITAL OIL AND GAS INDUSTRIES LIMITED

(2019)LCN/13424(CA)

In The Court of Appeal of Nigeria

On Friday, the 7th day of June, 2019

CA/A/481/2018

JUSTICES

TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

ASSET MANAGEMENT CORPORATION OF NIGERIA Appellant(s)

AND

CAPITAL OIL AND GAS INDUSTRIES LTD Respondent(s)

RATIO

CONSEQUENCE OF FAILURE TO SERVE A PRE-ACTION NOTICE

See MOBIL PRODUCING NIGERIA UNLIMITED VS LASEPA & ORS (2002) 18 NWL2 (PART 798), (2002) LPELR. 1887 (SC) 17 per AYOOLA, JSC who said:
“There is here is no dearth of authorities as to the consequence of failure to serve a pre-action notice when such is made a condition precedent for the commencement of a suit. A suit commenced in default of service of a pre-action notice is incompetent as against the party who ought to have been served with a pre-action notice provided such party challenges the competence of the suit.” PER IGE, J.C.A.

CONSEQUENCE OF FAILURE TO COMPLY WITH THE RELEVANT STATUTE OR REGULATIONS TO BE FOLLOWED IN AN ACTION

I am of the view that notwithstanding the provisions of the Constitution that grant access to Court to individual or organization to sue to vindicate their rights, where there is a statutory hurdle to be crossed or procedure to be followed to crystalize the action, failure to comply with the relevant statute or regulations will render the action incompetent and the Court will lack jurisdiction to entertain it. See GODWIN UGWUANYI VS NICON INSURANCE PLC (2013) LPELR – 20092 SC p. 14; (2013) 11 NWLR (PART 366) 546 at 582 D-G per CHUKWUMA – ENEH, JSC who said:-
“Since the appellant’s contract of employment contains such an enabling implied term there can be no question about incorporating the instant provisions of Section 26(2) into the appellant’s conditions of employment thus imposing a duty on the appellant the breach of which is enforceable at the suit of the respondent here being grounded in their employment relationship. This duty as imposed on the appellant by Section 26(2) simply put is to serve pre-action notice before commencing any actions against the respondent. The word “shall” used in Section 26(2) in articulating this duty shows that it is a compulsory duty and imperative and this has been so expressed, if I may elaborate further, by the use of the words therein as follows:
“No suit shall be commenced against the corporation after written notice of intention to commence the suit shall have been served upon the corporation by the intending plaintiff.” PER IGE, J.C.A.

WHETHER OR NOT VALID, FINAL AND SUBSTITUTING JUDGMENT OF A COURT CAN BE ENFORCED VIDE INSTITUTION OF ANOTHER ACTION BEFORE THE SAME COURT

I am of the view that a valid, final and subsisting judgment of a Court cannot be enforced vide institution of another action before the same Court or other Courts of coordinate jurisdiction seeking for an order to compel a party to an existing judgment or Judgment Debtor thereof to comply with an extant judgment. Recourse must be had by a Judgment Creditor to the procedure provided or laid down by the Sheriffs and Civil Process Act and Judgment Enforcement Procedure Rules particularly in enforcing monetary judgments. See GOVERNMENT OF GONGOLA STATE VS ALHAJI UMARU ABBA TUKUR (1989) 9 SC 105 AT 122-123 per NNAEMEKA-AGU, J5C who said:-
“In the case of Akunnia v. Attorney General of Anambra State (1977) 55. C. 161, at p. 77, this Court came to the same conclusion where it drew a distinction between an executory and a declaratory? judgments. Both must be obeyed but it is only the former that can be executed: such an execution may be stayed. The question is whether the judgment in this case is among those that were capable of execution.
Now what is the meaning of execution? I think execution simply means the process whereby a judgment or order of a Court of law is enforced or given effect to according to law. Our Sheriffs and Civil Process Act (Cap 189) Laws of the Federation, 1958, deals elaborately with process for execution that are recognized at law. Just as judgments can often be executed according to the provisions of that Act or the corresponding Laws of a State; it is only those judgments that are capable of execution that their execution can be stayed. PER IGE, J.C.A.

PARTIES BOUND BY A MONETARY JUDGEMENT

It must be emphasized that those bound by monetary judgment are the parties to the suit particularly the person against whom order or judgment is made or pronounced and not persons or authority who were/are not parties to the proceedings. See CHIEF UJILE D. NGERE & ANOR VS CHIEF J. W. OKURUKET “XIV” & ORS (2014) 11 NWLR (PART 1417) 147 AT 173 C H per RHODES-VIVOUR, JSC who said:- “The Court of Appeal granted a perpetual injunction restraining the applicants from laying any claim to the stool of Okan-Ama of Ngo yet while that order still stands the 1st applicant in his affidavit introduced himself as of the Palace of Okan-Ama Ngo. This amounts to disobedience of the orders of the Court of Appeal. The question to be answered is whether the 1st applicant (who is now a contemnor) should be heard and can be entitled to the discretion of this Court? Section 287(3) of the constitution reads:
“287(3) The decisions of the Federal High Court the National Industrial Court, a High Court and of all other Courts established by this Constitution shall be enforced in any part of the federation by all authorities and persons, and by other Courts of law with subordinate jurisdiction to that of the Federal High Court, the National Industrial Court, a High Court and those other Courts, respectively.”PER IGE, J.C.A.

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): By her Originating Summons dated and filed the 8th day of June, 2015 the Respondent herein as PLAINTIFF at the lower Court sought for the determination of the following questions viz:-
“A For the determination of the following questions:
1. Whether having regards to the consent judgment in suit No. FHC/L/CS/714/2012, the Defendant was not under an obligation to restructure the Plaintiff’s debt and to avail the Plaintiff Trade Finance Facility in the sum of 16 Billion Naira following the appointment of Ryan Johnson as the Managing Director of the Plaintiff and subsequent waiver to allow Mr Ifeanyi Ubah assume the position of Managing Director pursuant to the consent judgment in Suit No. FHC/L/CS/556/2014 for revamping of the plaintiffs business.
2. Whether the actions of the Defendant and agreements reached by the parties since the consent judgment in suit No. FHC/L/CS/714/2012 does not constitute a waiver of the requirement for compliance with condition precedents before the obligations of the Defendant comply with their obligations including to restructure the

Plaintiff’s debt and provide Trade Finance Facility to the Plaintiff in the sum of 16 Billion Naira for revamping of the Plaintiff’s business.
3. Whether the Defendant is not wrong to have
failed/refused and/or neglected to restructure the Plaintiff’s debt and to avail the Plaintiff Trade Finance Facility in the sum of 16 Billion and pay its trade creditors.
Upon an affirmative determination of questions 1,2 and 3 above in favour of the Plaintiff, whether this honourable Court may not in the circumstance order the Defendant to comply with their obligations under the consent judgment in suit No. FHC/L/CS/714/2012.
In anticipation of a favourable response to the said questions the Respondent prayed the lower Court for the following reliefs:-
“B. Upon the determination of the questions set out above in favor of the plaintiffs, the Plaintiff prays this Court for the following reliefs: –
AN ORDER compelling the defendant to comply with the consent judgment and to make the additional sum of NG N10,590,000,000 Billion Naira available to the Plaintiff for the payment of sundry to continue to threaten the Plaintiff’s business.
ii. AN

ORDER compelling the defendant to comply with the consent judgment and to make the additional sum of NGN10,590,000,000 Billion Naira available to the Plaintiff for the payment of sundry creditors who continue to threaten the Plaintiff’s business.
iii. AN ORDER appointing an independent auditor to ascertain the losses incurred by the Plaintiff due to the failure of the Defendant to comply with its obligations under the consent judgment in suit No. FHC/L/CS/714/2012.
iv. AN ORDER restraining the Defendant from dealing (in any way or manner inconsistent with the ownership or other proprietary rights of the Plaintiff or its Directors) with the assets transferred to the Defendant (with the cumulative forced sale value of over 150 Billion Naira as asserted by the Plaintiff) pending the submission of a report by the independent auditor appointed by this Court.
v. AN ORDER of injunction restraining the Defendant’ from exercising any powers over the Plaintiff and its assets and from processing any assignment, transfer or other demise whatsoever (including mortgages, conditional sales, or otherwise) or requesting for statutory Consent or other approvals

for the transfer or other demise of any rights in the assets of the Plaintiff pending the submission of a report by the independent auditor appointed by this Court.
vi. AN ORDER directing the Defendant to produce and file in Court in a sworn affidavit a full and detailed report and account of all its dealings till the date this action was filed with the said assets of the Plaintiff and/or it Directors! Associated companies delivered or transferred to the Defendant pursuant to the consent judgment in Suit No. FHC/ABJ/CS/714/2012.
vii. AN ORDER directing the independent auditor appointed by the Court to produce and file in Court in a sworn affidavit a full and detailed report of all losses occasioned to the Plaintiff as a result of their failure to restructure the Plaintiff’s debt and to provide Trade Finance Facility to the plaintiff in the sum of 16 Billion Naira for revamping of the plaintiffs business.
viii. A DECLARATION that the Plaintiff is entitled to set off such damages as the Court may award following the report of the independent auditor appointed by the Court in this action against any debts

ascertained by the Independent auditor to be owed to the Defendant by the Plaintiff pursuant to the consent judgment in Suit No. FHC/ABJ/CS/714/2012.”

The said Originating Summons was accompanied by 49 paragraphs Affidavit sworn to by one NSIKAN USORO an Executive Director in the Respondent’s company. The Appellant filed Counter Affidavit consisting of seventy-five (75) paragraphs against the Originating Summons aforesaid sworn to by one SULAIMON ABDUL MAHEED a Public Servant in the Appellant’s Corporation.

Further and Better Counter Affidavit was filed by the Respondent.

It must be stated that the Appellant had in the course of hearing at the lower Court filed Notice of Preliminary Objection on 21st day of September, 2015 contained on page 69 of the record of appeal contending that the lower Court “…lacked jurisdiction to entertain the suit and that the suit is incompetent in law and ought to be struck out.”

The grounds relied upon for the challenge to the jurisdiction of the lower Court is:-
“That the Plaintiff did not serve a pre-action Notice on the Defendant as required by the provision of Section 43(2) of the Asset Management corporation of Nigeria Act 2010 (as amended).”

The objection was consolidated with the hearing of the said Originating Summons and they were heard together.

In a considered judgment delivered on the 6th day of October, 2016, the learned trial Judge found in respect of the Preliminary Objection of the Appellant against the jurisdiction of the lower Court as follows:-
I have considered the submissions of Learned Counsel and any of the view that the present suit is in the nature of one seeking to enforce the judgment delivered by this Court on 17-6-13 in Suit No. FHC/ABJ/CS/712/2012 between the defendant as plaintiff and the plaintiff herein as 2nd Defendant. As rightly submitted by Mr. Oluyede Section 287 of the 1999 Constitution as amended mandates superior Courts of record (this Court inclusive) to enforce their Judgment.
Section 287 (3) of the 1999 Constitution as amended provides:
“The decisions of the Federal High Court by this Constitution shall be enforced in any part of the Federation by all authorities and persons and by other Courts of law with subordinate jurisdiction to that of the Federal

High Court and those other Courts respectively.”
I have earlier said this suit is seeking to enforce the judgment in Suit No. PHC/ABJ/CS/714/2012 and by Section 287(3) of the 1999 Constitution.
I therefore hold that this Court has jurisdiction to entertain this suit. The defendant’s notice of preliminary objection has no merit and same is hereby dismissed.”

In respect of the merit of the suit and the reliefs sought therein the learned trial Judge held as follows:-
“It is trite that where a deposition in an affidavit is not denied or controverted by the other party by way of a reply further affidavit there which will deem the facts deposed in that affidavit as true.
Without the denial of the fact that the Plaintiffs further transferred assets valued at N15 Billion Naira to AMCON to make the shortfall of the N15 Billion it (AMCON) is asking for, to make the N78.55 Billion Naira requirement under the consent judgment.
I hold that the Plaintiffs have discharged the obligation of providing N78.55 Billion Naira placed on them by the consent judgment:
The Plaintiff companies with the terms of the consent judgment by making

available the AMCON assets worth N78.55 Billion Naira, AMCON has a duty (Both moral and legal) to abide by the terms of the judgment.
In all public fora, AMCON always says that its main objective is not to kill business enterprises but in the instant case that is what it is doing.
If all parties have complied with the terms of the consent judgment it would have been a different story today.
The Plaintiff having complied with the terms of the judgment by having assets worth the N78.55 Billion Naira in accordance with 3.1 of the consent judgment, AMCON is under obligation to fulfill its own part pursuant to clause 4 of the consent judgment and 3.9 of the Restructured Agreement between the parties.
Paragraph 3 of the Restructuring of Facilities Agreement read:
3.1 subject to the Terms of this Agreement, the corporation makes available to the borrower.
3.3.1 the new facility; and
3.1.2 the trade finance facilities comprising of:-
3.1.2.1 the trading line; and
3.1.2.2. the guarantee.
Trade finance facilities is defined in the definition and interpretation sector of the restructures Agreement to mean “the adding Line

and the Guarantee to be made available to the Borrower pursuant to clause 3.2 – Trading Line means the N16,000,000= involving facility made available to the Borrower pursuant to Clause.
From the foregoing, I hold that the Plaintiff performed its own?. the obligation under the consent judgment. I also hold that AMCON is under a duty to carry out its own part under the consent judgment.
With these conclusions issues 1 and 4 are resolved in favour of the Plaintiff.
I also hold that the Defendant is both morally and legally wrong and have failed, refused and/or neglected to restructure the Plaintiffs stand to avail the Plaintiff Trade Finance facility in the sum of 16 Billion and pay its trade creditors … issue No. 2.5 also resolved in favour of the Plaintiff. The 3rd issue had already been resolved in the judgment in favour of the Plaintiff. All the issues posed for determination in this judgment are resolve in favour of the Plaintiff.
Pursuant to the conclusion just reached the following orders are granted.
An Order compelling the Defendant to comply with their obligations to restructure the Plaintiff’s

debt and to provide Trade Finance Facility in the sum of 16 Billion Naira far revamping of the Plaintiff’s business and to pay Plaintiff’s Trade Creditors is granted.
An Order compelling the Defendant to comply with the consent judgment and make additional sum of N10,590,000,000 (Ten Billion, Five Hundred and Ninety Million Naira) available to the Plaintiff for the payment of Sundry Creditors who continue to threaten the Plaintiff’s business is granted.
An Order of Injunction restraining the defendant from dealing (in any way or manner inconsistent with the ownership or other proprietary rights of the Plaintiff or its Directors) with the assets transferred to the Defendant (with the cumulative forced sale value of over 150 Billion Naira) pending the fulfillment of the Defendant’s obligation to provide Trade Finance Facility pursuant to Clause 3 of the restructured agreement and the Judgment to the Plaintiff is also granted.
An Order directing the defendant to produce and file in Court in a sworn affidavit a full and detailed report and account of all its dealings till the date this action was filed with the said assets of the Plaintiff and/or its

Directors/Associated companies transferred to the defendant pursuant to the Consent Judgment in Suit No. FHC/A91/C5/714/2012 is granted.
?That is the judgment of this Court.?

The Appellant was aggrieved by the judgment and has appealed to this Court vide her Notice of Appeal dated and filed on 26th October, 2016 on five (5) grounds which are as follows:-
“3. PART OF THE JUGDMENT IT COMPLAINED OF:
The whole Judgment.

4. GROUNDS OF APPEAL

GROUND ONE
The Learned trial judge erred in law in holding that pre-action notice is not required.

PARTICULARS OF ERROR
a) The suit upon which judgment was delivered was a fresh suit namely:
FHC/ABJ/CS/514/2015.
b) Pre-action notice was not given.
c) By Section 43 (2) of the Asset Management Corporation Act (AMCON) (As Amended) the issuance of a pre-action notice is a condition precedent for an action to be instituted against AMCON.
d) Suit FHC/ABJ/CS/714/2012 is different and distinct from Suit No FHC/ABJ/CS/514/2015.
?
GROUND TWO
The learned trial judge erred in law in holding that Suit No FHC/ABJ/CS/514/2015 was filed for enforcement of judgment.<br< p=””

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PARTICULARS OF ERROR
a) The method of enforcement of judgment is set out in the Sheriffs and Civil Processes Act CAP S 16 LFN, 2004.
b) Filing an originating summons is not one of the methods of enforcing judgment.

GROUND THREE
The learned Judge was wrong in holding that The Plaintiff companies with terms of the consent judgment by making available the AMCON assets worth 78.55 Billion Naira, AMCON has a duty (Both moral and legal) to abide by the terms of the judgment.

PARTICULARS OF ERROR
a) Affidavit evidence before the learned trial judge has shown that the Assets provided by the Respondent were not worth the 78,55 Billion Naira as required by the Consent judgment.
b) Affidavit evidence filed on behalf of AMCON has shown that the titles of the assets were not perfected.

GROUND FOUR
The learned trial judge erred in holding that COG has complied with the terms of the consent judgment.

PARTICULARS OF ERROR
a) There was before the learned trial judge conflicting affidavit evidence.
b) Oral evidence was not called to resolve the conflicting affidavit evidence.

?GROUND FIVE
The Honourable Judge misdirected himself in directing AMCON to pay COG total sum of 26 Billion 590 Million Naira.

PARTICULARS OF ERROR
a) COG was in flagrant abuse and disregard to the consent judgment.
b) COG did not transfer to AMCON assets 78.55 Billion Naira
c) Even the token assets transferred by COG the title documents were not perfected.

5. RELIEF SOUGHT FROM THE COURT OF APPEAL
AN ORDER allowing the appeal and setting aside the Judgment of the trial Court delivered on 6th October, 2016.
An order dismissing the suit for want of merit.”

The Appellant’s Brief of Argument was filed on 19th February, 2019 and deemed filed on 20th day of February 2019. The Respondent’s Brief of Argument was dated and filed on 5th March, 2019.

The Appellant’s learned Counsel AMINU SADAUKI, ESQ distilled five (5) issues for determination as follows:-
“I. Whether the suit was not incompetent as result the failure of the Respondent to issue the Appellant a pre-action notice (ground 1).
ii. Whether commencing another suit was a proper method of enforcement of judgment in Suit No. FHC/CS/714/2012 (ground 2).

iii. Whether the trial Court was right in holding that the Respondent had made available assets worth 78.55 Billion Naira when there was affidavit evidence to the contrary (Ground 3).
iv. Whether the trial Court was right in not calling oral evidence when there was conflicting affidavit evidence before it. (Ground 4).
v. Whether the trial Court was right in directing the Appellant to transfer the sum of 16 Billion and 10 Billion, 590 Million Naira to the Respondent despite the Respondent’s failure to fulfill the conditions precedent.”

The learned Senior Counsel to the Appellant AHMED RAJI, SAN adopted the issues formulated by the Appellant’s learned Counsel. The said issues will be utilized to determine the appeal herein. Issues 1 and 2 will be taken together.

(ISSUES 1 & 2)
i. Whether the suit was not incompetent as result the failure of the Respondent to issue the Appellant a pre-action notice (ground 1).
ii. Whether commencing another suit was a proper method of enforcement of judgment in Suit No. FHC/C5/714/2012 (ground 2).
?
The learned Counsel to the Appellant stated that the lower Court dismissed the

Appellant’s Preliminary Objection and held that the action being one for enforcement of judgment of Suit No. FHC/CS/714/2012, there was no requirement for pre-action Notice.

That the Appellant had hinged the objection on AMCON’s Act. He relied on the case of MADUKOLU V NKEMDILIM (1962) 1 ALL NLP 587 AT 595, to contend that the action was not initiated by due process of law. That it is a condition precedent that before action is commenced against the Appellant, there must be service of a NOTICE on it of pre-action Notice. That it is provided for by Section 43(2) of the AMCON ACT and the requirement of a pre-action notice is mandatory before the commencement of action against the Appellant. He relied on the cases of:-
1.NTIERO V NPA (2008) 10 NWLR (PT. 1094) 129 AT 14 D -E (sic);
2. N.D.C.L. V. A.S. W. B. (2008) VOL. 5 M.J.S.C, 118 AT 147 B ? E per TABAI, JSC,
He submitted that where a law provides for a procedure for doing an act, that procedure must be followed for the subsequent act to be valid. That once there is a condition precedent to be fulfilled before an aggrieved party does an act and it is not complied

with whatever is done will be invalid. That failure to comply with condition precedent renders the act done void. He relied on SAUDE V ABDULLAHI (1989) 4 NWL1Z (PT. 116) 387 AT 422.

That the lower Court erred when it held that this action was for the enforcement of the consent judgment in Suit No. FHC/C5/714/2012 and that because of that the action was competent. That the learned trial Judge relied on Section 287(3) of the 1999 Constitution as amended. He submitted that this suit is not an action for the enforcement of consent judgment in Suit No. FHC/CS/714/2012 as this action is separate and distinct and cannot under any guise be described as an action to enforce judgment.

That there are ways and means for the enforcement of judgments which learned Counsel stated are contained in Sherriff and Civil Process Act referring to Section 20(1) of the said Act.

That to all intent and purposes, the judgment the Appellant sought to enforce is a monetary judgment and that it is within the ambit of Sheriffs and Civil Process Act. That the Act is very clear and the meaning ought not to be distorted. He relied on the case of OLATUNDE V OBAFEMI AWOLOWO UNIVERSITY (1998) 5 NWLR (PT. 549)178.

That the wordings of Sheriffs and Civil Process Act is clear on the method of enforcement of monetary judgment and it does not include taking out of an Originating Summons under the guise of enforcement of judgment. That the lower Court erred in holding that the action was one for the enforcement of judgment when clearly the meaning employed was wrong. He urged the Court to so hold.

The learned Senior Counsel to the Respondent relied on page 722 Vol. 2 of the Record where the trial Judge stated that the suit was seeking to enforce judgment in Suit No. FHC/ABJ/CS/714/2012 and that by Section 287 (1) of 1999 Constitution as amended no pre-action Notice is required.

On the submission of Appellant on mode of enforcement of judgment as provided under Section 20 of the Sheriffs and Civil Process Act, the learned Silk submitted that the Appellant’s submissions are not well founded. He relied on the case of OKOYA V SANTILLI (1991) 7 NWLR (PT. 209) 753. That the case here was filed as a follow up to a consent judgment the terms of which the learned Senior Counsel stated the Appellant failed to satisfy. That his is

not a proper case in which pre-action Notice under AMCON ACT would be applicable. That it does not apply in the case of contract, malice, no legal justification, abuse of office or fraud or bad faith. He relied on the cases of LAGOS CITY COUNCIL V OGUNBIYI (1969) 1 ALL NLR 297 AT 299 and HASSAN V ALIYU (2010) LPELR – 1357 (SC) 33 – 34 E ? D and English cases of FLOWER V BOARD OF LOW LEYLON (1877) 5 C – H. D 347 AT 349 and A.G. V HACKNEY LOCAL BOARD (1875) 20 LR EQ626 and the case of NNPC VS FAWEHINMI (1998) NWLR (PT. 559) 598 to 623 per ACHOLONU, JCA (as he then was). That the Appellant failed to fulfill his obligations under the consent judgment.

That Appellant acted maliciously in failing to comply with the consent judgment which makes the pre-action Notice provided under Section 43 inapplicable. That the learned trial Judge stated on page 731 of the record that it was morally and legally wrong to have failed or neglected to fulfill its obligations to the Respondent.

That the Appellant did not appeal the pronouncement of the lower Court and as such Appellant was bound by it. He relied on the case of CHITRA KNITTING & WEAVING MANUFACTURING CO. LTD V AKINGBADE (2016) LPELR ?

40437 (SC) 1 AT 20 and OLEKSANOR V LONESTAR DRILLING CO. LTD (2015) 9 NWLR (PT. 1464) 33 AT 371 among legion of cases cited.

That the case of Appellant is shrouded in inconsistencies and afterthoughts. That all Appellant sought to do was to deprive Respondent of its rights to run its business. That the lower Court saw the element of bad faith of the Appellant using a sword of oppression against the Respondent. He relied on the case of OLATUNDE V OGUN STATE UNIVERSITY (2001) 1 CHR 156.

That it is not in the interest of justice to allow a brazen violation of consent judgment using pre-action Notice because irreparable injustice would have been caused before pre-action Notice could be served. He relied on the case of NIGERGATE LTD V NIGER STATE GOVERNMENT & ORS (2008) ALL FWLR (PART 406) 1938 – 1944.
?
That the suit leading to the instant appeal is just a child of first suit – Suit No. FHC/A11.77C5/714/2012 which according to learned Silk is the foundational suit that birth the judgment the Respondent sought to enforce in suit FHC/ABJ/CS/514/2015. That pre-action Notice having been served in the earlier

action pre-action Notice will not in the peculiar circumstances of this case be necessary as it will constitute impediment to a ready access to justice. That this case should be treated as classic exception to the application of requirement for pre-action Notice.

That Section 43 (3) of AMCON ACT constitutes impediment to easy accessibility to Court and as such, it is unconstitutional. He relied on the case of PORT HARCOURT REFINING COMPANY LTD V OKORO (2010) LPELR CA. PH/47/2009 per EKO, JCA now J5C. He also relied on paragraphs 21-45-49 of the Affidavit in Support of the Originating Summons as explaining why it was necessary to approach the Federal High Court urgently for protection of the management and operation of the Respondent from interference or take over.
That service of issuance of pre-action is not cast in stones and it depends on the facts, circumstances and peculiarity of each case relying on the case of BAKARE V A.G. FEDERATION (1990) 5 NWLR (PT. 152) 576 AT 535. He urged the Court to resolve the issues in Respondent’s favour.

Now Section 43(2) of the Asset Management Corporation of Nigeria Act provides:
“An action shall not be

brought or commenced against the corporation until after the expiration of 30 days notice in writing to the corporation giving details of the alleged wrong, date and remedy sought.”
The whole essence of a pre-action notice is to lay bare to an intending Defendant by the notice required under a statute the nature of action intending Plaintiff/Claimant has against the proposed defendant. The intending Claimant must comply with time and period stipulated by the statute between the service and commencement of the action. The required notice is designed to afford the parties the opportunity or likelihood of settling the matter in dispute without recourse to litigation. From the clear wordings of the AMCON ACT 2010 as amended, the Respondent is unequivocally and statutorily enjoined to mandatorily give the Appellant pre-action notice to initiate a suit against the Appellant by the Respondent. The word ‘shall’ is a command and a compulsion to the Respondent to fulfill a condition precedent in order to consummate his action or suit against the Appellant and whereas in this case the Respondent clearly failed to give or serve the Appellant pre-action notice, the

jurisdiction of the Court to adjudicate on the Respondent’s matter was/is automatically put in abeyance or suspension. See:
1. CHIEF B. E. NNONYE V. ANYICHIE (2005) 1 SCM 133 AT 145
2. AMADI V NNPC (2000) 10 NWLR (PART 674) 76 AT 110-111 per KARIBI-WHYTE, JSC.
I must emphasis that AMCON is a creation of statute and being an institution or corporation which the statute creating it prescribes a condition precedent before it could be sued. The Respondent in this case is/was under a burden duty to comply with the condition precedent put in place by the said Act to clothe her action with validity and competence and by extension endowed the lower Court with vires or jurisdiction to entertain this suit or action. See MOBIL PRODUCING NIGERIA UNLIMITED VS LASEPA & ORS (2002) 18 NWL2 (PART 798), (2002) LPELR. 1887 (SC) 17 per AYOOLA, JSC who said:
“There is here is no dearth of authorities as to the consequence of failure to serve a pre-action notice when such is made a condition precedent for the commencement of a suit. A suit commenced in default of service of a pre-action notice is incompetent as against the party who ought to

have been served with a pre-action notice provided such party challenges the competence of the suit.”
The Respondent had argued and this was unfortunately acceded to by the lower Court that ‘this suit is seeking to enforce judgment in suit no. FHC/ABJ/CS/714/ 2012 and 287(3) of the 1999 constitution as amended and therefore pre-action notice is not required’. I am of the view that notwithstanding the provisions of the Constitution that grant access to Court to individual or organization to sue to vindicate their rights, where there is a statutory hurdle to be crossed or procedure to be followed to crystalize the action, failure to comply with the relevant statute or regulations will render the action incompetent and the Court will lack jurisdiction to entertain it. See GODWIN UGWUANYI VS NICON INSURANCE PLC (2013) LPELR – 20092 SC p. 14; (2013) 11 NWLR (PART 366) 546 at 582 D-G per CHUKWUMA – ENEH, JSC who said:-
“Since the appellant’s contract of employment contains such an enabling implied term there can be no question about incorporating the instant provisions of Section 26(2) into the appellant’s conditions of employment

thus imposing a duty on the appellant the breach of which is enforceable at the suit of the respondent here being grounded in their employment relationship. This duty as imposed on the appellant by Section 26(2) simply put is to serve pre-action notice before commencing any actions against the respondent. The word “shall” used in Section 26(2) in articulating this duty shows that it is a compulsory duty and imperative and this has been so expressed, if I may elaborate further, by the use of the words therein as follows:
“No suit shall be commenced against the corporation after written notice of intention to commence the suit shall have been served upon the corporation by the intending plaintiff.”
The failure of the Respondent to serve pre-action notice on the Appellant before commencement of this suit herein as commenced rendered the suit incompetent. The lower Court lacked vires or jurisdiction to entertain the Respondent’s suit.

As for issue 2 relating to whether one can enforce judgment in an earlier action, by a new action or commencement of another action.
?I am of the view that a valid, final and subsisting judgment of a Court cannot

be enforced vide institution of another action before the same Court or other Courts of coordinate jurisdiction seeking for an order to compel a party to an existing judgment or Judgment Debtor thereof to comply with an extant judgment. Recourse must be had by a Judgment Creditor to the procedure provided or laid down by the Sheriffs and Civil Process Act and Judgment Enforcement Procedure Rules particularly in enforcing monetary judgments. See GOVERNMENT OF GONGOLA STATE VS ALHAJI UMARU ABBA TUKUR (1989) 9 SC 105 AT 122-123 per NNAEMEKA-AGU, J5C who said:-
“In the case of Akunnia v. Attorney General of Anambra State (1977) 55. C. 161, at p. 77, this Court came to the same conclusion where it drew a distinction between an executory and a declaratory? judgments. Both must be obeyed but it is only the former that can be executed: such an execution may be stayed. The question is whether the judgment in this case is among those that were capable of execution.
Now what is the meaning of execution? I think execution simply means the process whereby a judgment or order of a Court of law is enforced or given effect to according to law. Our Sheriffs

and Civil Process Act (Cap 189) Laws of the Federation, 1958, deals elaborately with process for execution that are recognized at law. Just as judgments can often be executed according to the provisions of that Act or the corresponding Laws of a State; it is only those judgments that are capable of execution that their execution can be stayed.
I therefore wish to begin my consideration of the main issue raised by this appeal by pointing out that although every judgment of a Court must be obeyed and is effective from the date of its delivery or from such a date as the judgment itself appoints, the method of enforcement of a particular judgment depends upon the type of judgment.
In the sum
(i) A judgment/order for payment of money may be enforced by a writ fiery facias, garnishee proceedings, a charging order, a writ of sequestration or an order of committal on a judgment debtor’s summons.
(ii) A judgment for possession of land may be enforced by a writ of possession, a writ of sequestration or a committal/order.
(iii) A judgment for delivery of goods may be enforced by a writ of specific delivery or restitution or their

value, a writ of sequestration or writ of committal.
(iv) A judgment ordering or restraining the doing of an act may be enforced by an order of committal or a writ of sequestration against the property of the disobedient person.
For these see Sections 20, 24, 25, 35, 38, 44, 55, 57, 58, 65, 82 and 83 of the Sheriffs ‘and Civil Process Act (Cap. 189) Laws of the Federation – 1958.”
2. CHIEF M. O. OLATUNJI V OWENA BANK PLC & ANOR (2008) 8 NWLR (PART 1090) 668 AT 678H TO 680 A per MUSDAPHER, JSC later CJN (Rtd.) of blessed memory who said:-
“Now; it is agreed by both the appellant and the respondents that the relevant statutory provisions that fall for consideration in this appeal are;
Section 20(1) of the Sheriffs and Civil (Process) Act and Section 20(2) and Order IV Rule 1(1) and 2 of the Judgment Enforcement) Rules made pursuant to Section 94 of the aforesaid ACT. The provisions read:-
“Section 20(1)
Any sum of money payable under a judgment of a Court may be recovered, in case of default or failure of payment thereof forthwith or at the time or times and in the manner thereby directed, by execution

against the goods and chattels and the immovable property of the judgment debtor in accordance with the provisions of this Act.
Section 20 (2)
The Registrar on the application of the judgment creditor shall cause to be issued a writ of attachment and sale whereby the Sheriff shall be empowered to levy or cause to be levied by distress and sale of goods and chattels, wherever they may be found within the division or district of the Court, the money payable under the judgment and the costs of the execution.”
Order IV rule I and rule II Judgment (Enforcement) Rules made pursuant to Section 94 of the Act read.
Rule 1
No writ of possession shall be issued until after the expiration of the day on which the defendant is ordered to give possession of the land, or, if no day has been fixed by the Court for giving possession, until after the expiration of fourteen days from the day which the judgment is given.”
Now, considering these provisions, the question may be asked when does a judgment to pay a sum of money becomes recoverable. Can a judgment creditor apply for a writ of fifa immediately a judgment is pronounced or must

a judgment creditor wait for a default or failure to satisfy the judgment debt or must the judgment creditor wait for 14 days or 3 days after the judgment? In my view, unless the Court otherwise orders a judgment of Court to pay money takes effect from the day it is pronounced or delivered in Court. However, the Court at the time of making any judgment or order, or at any time afterwards, may direct the time within which the payment or other act is to be made or done. A person directed by a decree or order of Court to pay money or to do any other act is bound to obey the decree or order without any demand for payment or performance, and if no time is therein expressed, he is bound to do so immediately the decree or Order is pronounced.”
It must be emphasized that those bound by monetary judgment are the parties to the suit particularly the person against whom order or judgment is made or pronounced and not persons or authority who were/are not parties to the proceedings. See CHIEF UJILE D. NGERE & ANOR VS CHIEF J. W. OKURUKET “XIV” & ORS (2014) 11 NWLR (PART 1417) 147 AT 173 C H per RHODES-VIVOUR, JSC who said:-

“The Court of Appeal granted a perpetual injunction restraining the applicants from laying any claim to the stool of Okan-Ama of Ngo yet while that order still stands the 1st applicant in his affidavit introduced himself as of the Palace of Okan-Ama Ngo. This amounts to disobedience of the orders of the Court of Appeal. The question to be answered is whether the 1st applicant (who is now a contemnor) should be heard and can be entitled to the discretion of this Court? Section 287(3) of the constitution reads:
“287(3) The decisions of the Federal High Court the National Industrial Court, a High Court and of all other Courts established by this Constitution shall be enforced in any part of the federation by all authorities and persons, and by other Courts of law with subordinate jurisdiction to that of the Federal High Court, the National Industrial Court, a High Court and those other Courts, respectively.”
The judgment of a Court of competent jurisdiction subsists until upset on appeal. While the Judgment subsists every person affected by it. or against whom an order is made must obey it even if it appears wrong judgment stake effect immediately they are

delivered and every Court has inherent power to proceed to enforce Judgments at once. The enforcements on delivery can only be interrupted by a stay of execution provided there, is an appeal.
Parties are thus bound to obey Court orders that are clear and unambiguous, notwithstanding the fact that the order maybe wrong. So long as a party refuses to implement or obey a Court order ‘he would not be given a hearing in any subsequent application. See Odogwu v. Odogwu (1992) 2 NWLR (PT.225) P.539; Governor of Lagos State v. Ojukwu (1986) 3 NWLR (PT. 26) P.39.” (Underlined mine).
Consent Judgment, had already been given between the parties to this Appeal in suit No. FHC/ABJ/CS/714/2017 by the same Court and the same learned trial judge on 21st day of June 2013 entered the consent judgment which judgment was attached to this suit FHC/ABJ/CS/514/2015. The method for enforcement cannot be by institution of another action which to my mind constituted abuse of Court process. See:
1. TIMIPRE SYLVA Vs INEC & ORS (2015) 16 NWLR (PART 1486) 576 AT 623 – 624 G – C per NGWUTA, JSC,
2. HON. JUSTICE TITUS ADENIYI OYEYEMI RTD & ORS VS HON. TIMOTHY OWOEYE & ORS ?

(2017) 12 NWLR (PART 1580) 364 AT 397 C-H per BAGE, JSC who said:-
“The logic of judicial sanctity dictates that the earlier suit and its appeal ought to be rested and decided one way or the other including whether or not the appeal was validly withdrawn. By instituting another action which embodies the issues as in the earlier action on appeal makes the later manifestly an unpardonable abuse of Court process.
This Court has succinctly enunciated in Ntuks v. NPA (2007) 13 NWLR (Pt.1051) 392 at 419-420, paras. H-C on the meaning of abuse of Court process and held that:
“Abuse of Court process generally means that a party in litigation takes a most irregular, unusual and precipitates action in the judicial process for the sake of action qua litigation, merely to waste valuable litigation time. It is an action which could be avoided by the party without doing any harm to the matter in dispute. The process of the Court is used malafide merely to overreach the adversary to the direct annoyance of the Court. The Court process is initiated with malice or in some premeditated or organized vendetta, aimed at frustrating either the quick

disposal of the matter or the abatement of the matter for no good cause. The Court process could also be said to be abused where there is no iota of law supporting it.
In other words, the Court process is premised or founded on frivolity or recklessness.”

Issues 1 and 2 are hereby resolved in favour of the Appellant. Issues 3 and 4 will be taken together.

ISSUES 3 AND 4
3. Whether the trial Court was right in holding that the Respondent had made assets worth 78.55 billion when there was affidavit evidence to the contrary (Ground 3).
4 Whether the trial Court was right in not calling oral evidence when there was conflicting evidence before it (Ground 4).

The learned counsel to the Appellant contended that actions that are likely to be contentious should not be commenced by Originating Summons. That in this case, there were a lot of matters in contention that needed evidence to be called and the suit should not have been initiated by way of all Originating of Summons.
?
That the Affidavit evidence were conflicting. That the conflicts in the Appellants evidence could not have been resolved without calling oral evidence. That so

many contentious issues could be seen on pages 10 – 13 of the record, the Affidavit in Support of the Originating Summons. That the issues raised in the Affidavit in Support of the Originating Summons were countered by the Counter Affidavit of the Appellant on pages 89 – 102 of the record. That the Appellant’s learned Counsel drew the attention of the Court to the conflicts in the said Affidavits and the need to call oral evidence but the lower Court refused to countenance Appellant’s complaints. Attention was drawn to paragraph 15 of the Supporting Affidavit to the Originating Summons and paragraph 15 of the Appellant’s Counter Affidavit. He submitted that where there are material conflicts in two opposing Affidavits the Court must call oral evidence to resolve the conflict, unless the documents attached as evidence to the Affidavits can be of assistance to the Court in that regard thereby dispensing with the need to call oral evidence. He relied on the case of LSDPC V.ADOLD STAMM INTL NIG. LTD (1994) LPELR – 1745 SC. That where there are material conflicts in two opposing Affidavits the Court shall call oral evidence to resolve the conflict where the

Affidavits are irreconcilable. He relied on the cases of:
1. SIMON EZECHUKWU & ANOR VS I.O.C ONWUKA (2016) LPELR – 26055 (SC).
2. DOHERTY V DOHERTY (1968) NWLR 241 per ADEMOLA CJN.
3. FALOBI V FALOBI (1976) 9 – 10 SC at 14 -15.

That it does not matter whether none of the parties asked to be allowed, to cross – examine any of the Deponents or to call any such witness. That such omission by the parties should not be taken to amount to consent that affidavit evidence should be used in circumstances.

In response to the above argument, the learned Senior Counsel to the Respondent stated that the Appellant has added bounden duty placed on it by virtue of Section 116 of the Evidence Act 2011 to show that there are irreconcilable depositions on crucial and material facts.
?
That the mere fact that there is a Counter Affidavit to an Originating Summons does not make the action instituted not suitable. That what the Appellant should have pointed out was the existence of an irreconcilable material conflict on crucial facts in the Affidavits of parties and that Appellant failed to show the need for the lower Court to order filing of

pleadings and calling of oral evidence. That in any event the Appellant is raising the issue for the first time in this Court without the leave of Court. That all the submissions are on fresh issue and that they go to no issue. He urged that the issue be resolved against the Appellant. He relied on the cases of:-
1. OSENI V BAJULU (2009) 18 NWLR (PT. 1172) 164 SC;
2. OBIAKOR & ANOR V THE STATE (2002) 10 NWLR (PT.6) 612;
3 CHIEF OGUNBADEJO V. OTUNBA A. OWOYEMI (1993) 1 NWLR (PT 271) 517 AT 534.

That the contention of the Appellant on point highlighted is akin to procedural irregularities, which can be waived because according to learned Silk they do not nullify proceedings. He relied on Order 51 Rule 1 (1) of the Federal High Court Rules 2009. That the purported irregularity does not nullify the proceedings relying on the case of:
1. FAMFA OIL LTD VS A. G. FEDERATION (2003) 18 NWLR (PART 852) 453.
2. SAUDE V ABDULLAHI (1989) 4 NWLR (PT 116) 382.
3. OKOYE V. NIGERIA CONSTRUCTION CO. LTD & ORS (1991) 6 NWLR (PT. 199) 501 AT 539.
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The Respondent again contended that the Appellant did not at the trial Federal High

Court object to the Originating Summons procedure. That such objection ought to have been timeously raised at the lower Court. He relied on Order 56 (2)(1) of the Federal High Court Rules 2009. That the Appellant has waived her right to complain in this Court having failed to object to the procedure adopted to initiate the action. He relied on the cases of:-
1. NOBI VS FIKOLATI (1987) 1 NWLR (PT 52) 619 AT 632;
2. ADEBAY0 & ORS VS. SHONOWO & ORS (1969) 1 ALL NWLR (PT 1) 229 AT 234.
3. SAUDE V ABDULLAHI (1989) 1 NWLR (PART 116) 387;
4. HON. GOZIE AGBAKOBA V INEC & ORS (2008) LPELR -232 SC.

That the lower Court was right to have determined the suit on Affidavit evidence, or by Originating Summons. The learned Silk thereafter contended that ground 4 of the notice of Appeal should be struck out, being a fresh issue raised without the leave of the Court of Appeal. That since issue 3 and 4 were jointly argued and giving the incompetence of issue 4, the two issues argued together automatically become liable to be struck out.
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That in any event, the lower Court considered all the processes and documents placed before it

by the parties. That the Respondent’s case at the trial was intended to give effect to the consent judgment and the material evidence required to achieve that were put before the Court. The Respondent relied on the findings of the learned trial Judge on pages 128 – 129 of the printed record. That this means that the learned trial judge had ample material placed before it to resolve the case on Affidavit evidence. That the Appellant did not appeal the crucial findings of the lower Court and thus Respondent is bound by the unappealed finding of the trial Court relying on the case of LADOJA V AJIMOBI & ORS (2016) 10 NWLR (PT 1579) 87 at 144 B-D. That the lower Court had sufficient document and materials to resolve the suit without recourse to calling oral evidence in consonance with the case of SIMON EZECHUKWU & ANOR V. I.O.C. ONWUKA (2016) LPELR -26055.

That irreconcilable conflicts in a case will only arise if there is a violent disagreement in the averment of the contending parties without inclusive materials to resolve them relying on AYUA VS. ADASU (1992) 3 NWLR (PT 231). He urged the Court to reject Appellant’s arguments.

The issues in contention here are whether the lower Court was right in holding that the Respondent has made available assets worth 78.55 Billion Naira in spite of contrary affidavit evidence and whether the lower Court ought to have directed calling of oral evidence to resolve conflicts in the Affidavits evidence before the Court.

Now on pages 727 – 729 of the record the learned trial Judge held in his judgment as follows:-
‘From the averments in the affidavit of the parties and the documents exhibited including the judgment in this suit Capital Oil is required to transfer Assets worth N78.55 Billion to AMCON before any further advancement of funds can be made to capital oil by the Plaintiff. Exhibit NUFAI a petition against Mr. Ifeanyi Patrick Ubah for fraud against Asset Management Corporation of Nigeria (AMCON), paragraph 10.4 thereof AMCON stated thus:
“on its part and in furtherance of paragraph 3.30 of Annexure GIUol and this Agreement Mr. Ubag transferred several properties to the corporation as security for the credit facilities granted COG by the corporation and as part payment of the COG FBN to reduce its aggregate value. Please find the list of

the recovered properties in Schedule 1 hereto.”
It is pertinent to state that the corporations interest in all the assets transferred by COG/Mr. Ubah have not been perfected. More so contrary to COG’s representation, the corporation later found out that there was a shortfall of about N15,000,000,000 (Fifteen Billion Naira only) in the valuation of the assets transferred to it by COG.
Consequently, COG was required to provide additional assets to make for the shortfall and COG in yet to provide the additional assets.
This is an admission by AMCON that the forced sale value of the Plaintiffs assets fall short of the requirement of N78.55 Billion Naira AMCON is asking of pertains its part of the obligation. However in paragraph ten (10 of the Plaintiff’s further affidavit dated 5/2/16 and filed the same day the Plaintiff averred that:
“Immediately after the meeting, the Plaintiff wrote a letter dated 25th of November, 2012 to the Defendant titled “RE:MEETING OF 25TH NOVEMBER 2012.”
The Plaintiff sought to clarity who then the offering of the oil force properties and the Banana Island Properties will suffice to make up to the 15 Billion

Naira shortfall at paragraph 3 thus:
The vessel transaction and offering of right of way for the oil force as well as the Banana Island properties will adequately cover the N15 Billion shortfall as indicated by AMCON during the meeting based on AMCON’s valuation.”
Copy of the Plaintiff’s letter to the defendant dated 25-11-2013 is hereto attached and marked as Exhibit NUFA 1:
“The averment in paragraph 10 of the Plaintiff’s further affidavit is not denied by AMCON. Secondly there is no response to the letter of 25-11-2013.”
It is trite that where a deposition in an affidavit is not denied or controverted by the other party by way of a reply further affidavit there which will deem the facts deposed in that affidavit as true.
Without the denial of the fact that the Plaintiff’s further transferred assets valued at N15 Billion Naira the AMCON to make the shortfall of the N15 Billion it (AMCON) is asking for to make the N78.55 Billion Naira requirement under the consent judgment.
I hold that the Plaintiffs have discharged the obligation of proving N78.55 Billion Naira placed on them by the consent judgment.
The Plaintiff

companies with the terms of the consent judgment by making available the AMCON assets worth N78.55 Billion Naira, AMCON has a duty (Both moral and legal) to abide by the terms of the judgment.
In all, public for a AMCON always says that its main objective is not to kill business enterprises but in the instant case that it what it is doing.”

It is here necessary to quote what paragraphs 14 – 17 of the Supporting Affidavit sworn on 8/6/2015 which accompanied Respondent’s Originating Summons read:-
“1 4. Although the Plaintiff rejected the valuation of the initial assets, it accede to the request for additional assets by the pressure (including the use of police threat of arrest) brought to bear on Dr. Ubah and proceeded to execute documents transferring additional properties specifically requested by AMCON, including Mr. Ubah ‘s family property at Banana Island in Lagos, with a 15 Billion forced sale value that is well over the Naira shortfall alleged by AMCON.
15. As at date the Plaintiff, companies associated with it and Dr. Ubah have transferred assets worth over 150 Billion Naira to AMCON.
16. That the terms of settlement was

predicated on the realization by the Defendant that the plaintiff assets far out-valued its liabilities and if placed under special administration for 2 years with sufficient trading finance, its liquidity problems would be resolved and its dominance in the petroleum industry petroleum industry downstream sector improve .
17. The essence of the special temporary agreement was to give the Defendant comfort and confidence to inject the required funds to enable the Plaintiff operate optimally. ”

The Appellant as Defendant at the lower Court filed Counter Affidavit against the Originating Summons as aforesaid and it was deposed in paragraphs 13 -18 of the said Counter Affidavit as follows:-
“13. That several independent evaluations of the Transferred assets showed that the value of the Transferred assets were highly inflated, far below its debts to the Defendant and in some cases the titles purported to have been transferred were defective ab initio and the total value was found to be N21.923,847,066.00 plus the leaving a shortfall of N56.7 Billion from the minimum 78.55 Billion required under the Consent Judgment The Sovereign Debt Notes valued at

NI7.5 Billion have not been delivered to The Defendant. The Collateral assets are also worth 40.94 Billion as against 99.8 Billion.
14. Attached and marked as Exhibit AMC 14-29 are some of the most recent reports of Independent valuers that undertook the valuation of the Transferred Assets and letters written to the Plaintiff on same of repeated demands.
15. That the Plaintiff has since failed and refused to provide sufficient assets to meet the minimum transferred Assets value of N78.55 Billion as required under clause 3.4 of the Abuja Consent judgment in spite of repeated demands.
16. That the Plaintiff has also failed to meet the requirement to maintain collateral cover of 125% of outstanding loan balance as valuation conducted on the existing collateral assets of Capital Oil so far revealed that the assets are worth only N40.94bn against a total exposure of N99.81m as at June 30, 2015, thus revealing a collateral gap of over N58.6bn contrary to the Restructuring Agreement.
17. That the transferred Asset and Additional Assets are not worth up to 150 Billion.
18. That in the absence of cogent and verifiable evidence to the contrary

the Plaintiff was insolvent to the extent that its liabilities outweighed the Transferred Assets and the Plaintiff’s assets at the time of the consent judgment and till date.”

I am of the solemn view that paragraph 10 of the Further Affidavit relied upon by the lower Court did/does not answer the averments in paragraphs 13 – 18 of the Appellant’s Counter Affidavit just reproduced. This is a Respondent which deposed that it has as at the date it instituted this action and in fulfillment of consent judgment transferred assets worth over 150 Billion Naira to the Appellant which the Appellant stoutly denied in paragraph 17 of the Counter Affidavit and went further to show that evaluation of assets transferred were inadequate and not up to mandated minimum contained in the consent judgment.

Paragraphs 4 – 13 of the Plaintiff’s (Respondent’s) Further Affidavit in Support of Originating Summons sworn by one NSIKAN USORO on behalf of Respondent on 5-2-16 deposed as follows:-
“4, The Plaintiff was unable to secure some needed facts and documents that are vital to its case before the hearing of the Originating Summons and has only

recently come into possession of these facts and documents now deposed to, herein and exhibited hereto.
5. In addition, it has also recently come to the attention of the Plaintiff from the documents it has now obtained that some of the information deposed to in the Counter-Affidavits filed on behalf of the Defendant were deliberate falsehood and some of the documents attached for the Court to rely on were doctored and altered by the deponents in order to deceive the Court.
6. I therefore verily believe that it will help the Court in the Just determination of this Suit if these facts and documents are now brought to the attention of the Court.
7. The Trade Finance Facility to be granted to the Plaintiff by the Defendant is 100 Million United States Dollar (USD), which was converted to 16 Billion Naira at NGN160 to a USD as at the time of the Consent Judgment in June 2013.
8. The exchange rate of Naira to USD is presently at NGN300 to a USD and I verily believe that the Plaintiff is entitled to the sum of 30 Billion Naira from the Defendant as Trade Finance Facility pursuant to the Consent Judgment and not the 16 Billion Naira which was

merely the expression of the 100 million USD agreed, in Naira at the exchange rate prevailing at the time the agreements were entered as the consent judgment of the Court.
9. In a meeting between the Plaintiff and the Defendant held on 25th November 2013 to discuss the outcome of the valuation of the Plaintiff’s transferred assets carried out by the Defendant, the Defendant further confirmed to the Plaintiff that they had done the valuation of the assets transferred by the plaintiff and that there was a shortfall of 15 Billion Naira.
10. Immediately after the meeting, the Plaintiff wrote a letter dated the 25th of November 2013 to the Defendant titled “RE: MEETING OF 25TH NOVEMBER 2012”. The Plaintiff sought to clarify whether the offering of the Oil Force properties and the Banana Island properties will suffice to make up for the 15 Billion Naira shortfall at paragraph 3 thus: “The vessel transaction and offering of right of way for the Oil Force as well as the banana island properties will adequately cover the N15 Billion shortfall as indicated by Amcon during the meeting based on Amcon’s valuation”. A copy of the Plaintiff’s letter to the

Defendant dated 25th November 2013 is hereto attached and marked as Exhibit NUFA 1.
11.The Defendant responded to the Plaintiff’s letter on the same 25th November 2015 and affirmed that the Plaintiff was very apt on the purpose of the meeting and enjoined the Plaintiff to “speedily implement” its part to enable the Defendant “proceed with full implementation of the Consent Judgment”. A copy of the Defendant’s letter to the Plaintiff dated 25th November 2013 is hereto attached and marked as Exhibit NUFA2.
12. In providing for the shortfall of 15 Billion Naira alleged by the Defendant to be its reason for failing to implement the Consent Judgment the issue of the valuation of the Mongolia, an ocean going oil tanker vessel which formed part of the “transferred assets” had come up and the original vendors of the vessel to the Plaintiff were called in because they were also amongst the trade creditors that the consent judgment required should be paid by the Defendant.
13. In order to agree that the vessel’s value was 45 million US Dollars the Defendant had insisted that the Plaintiff guarantee a yearly income of 4.5 Million US dollars.”

A calm reading of the said paragraphs 4 – 13 of the Further and Better Affidavit did not establish that the shortfall of N15 Billion has been paid to Appellant or that assets worth that sum had been transferred by the Respondent to Appellant in form of assets. If the said paragraph 10 of Further and Better Affidavit is read within the con of paragraphs 4 – 13 of the said Further and Better Affidavit of Respondent, it is glaring that no inference of any admission on the part of the Appellant to the effect that Respondent has transferred assets worth 78.55 Billion Naira to the Appellant could be drawn at all from paragraph 10 of the Further and Better Affidavit of the Respondent filed on 5-2-16.

On page 729 line 2, the learned trial Judge’s reason for also coming to the wrong conclusion, with profound respect is because he said “there is no response to the letter of 25-11-2013.”

I am of the firm view that failure to reply the letter cannot tantamount to admission. It was for Respondent to provide documentary evidence or other evidence of all compliance with the consent judgment.
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More importantly the learned trial Judge was wrong in coming to the

conclusion that the letter of 25-11-2013 was not responded to.

The Respondent actually admitted that the letter of 25-11-2013 was responded to as can be seen in paragraph 11 of the Further and Better Affidavit sworn to on 5/2/16 by the Respondent. The admission in paragraph 11 aforesaid also rendered the conclusion of the learned trial Judge fatally wrong and a nullity in that Respondent stated in the said paragraph 11 of the Further and Better Affidavit of Respondent “that the Defendant responded to the Plaintiff’s letter on the same 25th November, 2015 and affirmed that the Plaintiff was apt on the purpose of the meeting and enjoined the Plaintiff to “speedily implement” its part to enable the Defendant “proceed with full implementation of the consent judgment.”

As a matter of fact the response of the Appellant was exhibited as Exhibit NUFA 2 to the said Further and Better Affidavit of the Respondent on page 573 of the record of appeal. There is even no iota of admission in the said letter of Appellant which was a reply to letter mentioned in paragraph 10 of the Further and Better Affidavit of Respondent.
?
There is no evidence in the

Affidavits and Exhibits attached to Respondent’s processes showing any compliance with the consent judgment, by the Respondent.

On whether there was need for the learned trial Judge to call for oral evidence as to resolve conflicts in the Affidavits in the Affidavits evidence before the lower Court. I am of the firm view that there are serious conflicts in the Affidavits of the parties on the crucial or material issue as to whether the Respondent has transferred assets worth 78.55 Billion Naira to the Appellant to enable the Defendant now Appellant perform its own obligations to the Respondent under the consent judgment between the parties in Suit FHC/ABJ/C5/714/2012.
As there is no exhibits or documents resolving the issue in this case there was need for the lower Court to have called for oral evidence or better still the trial Judge could have directed filing of pleadings to enable parties call oral and documentary evidence to resolve the issues in dispute at trial. See AIR MARSHALL ISAAC M. ALFA VS SENATOR AIDOKO ATTAI & ORS (2018) 5 NWLR (PART 1611) 59 AT 87 where NWEZE, JSC said:-
“Against this background, therefore, I return an

affirmative response to the rhetorical question of Oho, JCA, at the lower Court. As shown above, His Lordship noted thus:
It should, perhaps, be important to mention the fact here, that in the depositions of the second respondent’s counter affidavit in paragraphs 6 (a) (v)…” the POP averred that it was the appellant [the first respondent in the present appeal before this apex Court that won its primaries and not the first respondent [in the present appeal before this apex Court, the appellant]. It also disowned the result sheet exhibited and relied upon by the first respondent [in the present appeal before this apex Court, the appellant] as not being the result of its primaries. The question that, therefore, begs to be answered here is; if this in itself is not a conflict requiring the calling of evidence, then what exactly is it?
[Italics supplied for emphasis]
My Lords, I take the humble view that Oho, JCA was right that the state of the averments in the chiaroscuro of Affidavits and documents made it inevitable that the suit ought to have been transferred to the general cause list of the trial Court where the matter would have been

determined in the most common adversarial method of ventilation of their respective cases through issues, duly, joined in settled pleadings and oral evidence.”
On page 92 A-11 of the Report my Noble Lord RHODES-VIVOUR, JSC said:-
“My lords, after examining the facts, which are seriously in dispute, the affidavits, counter-affidavits and exhibits it is so clear that there are material contradictions on facts that can only be resolved by calling evidence as no Court resolves conflicts in affidavits without calling oral evidence. It is so obvious that this is going to be a hostile proceeding where facts are seriously disputed.
I am firmly of the view that the Court of Appeal was correct in deciding that an originating summons would no longer be suitable for this suit, rather a writ of summons would be the most appropriate way to commence the appellant ‘s suit.”

In the result issues 3 and 4 are resolved in favour of the Appellant.

ISSUE 5
Whether the trial Court was right in directing the Appellant to transfer the sum of 16 Billion and 10 Billion, 590 Million Naira to the Respondent despite the Respondent’s failure

to fulfill the conditions precedent.

The Learned Counsel to the Appellant submitted that parties are bound by their agreement and also the judgment of competent Courts. That Courts’ judgment include consent judgments which is recognized by Nigerian Judicial System. He relied on the cases of:
a. AEROBELL (NIG) LTD V. NDIC (2017) 5 NWLR (PT 1558) per OTISI, JCA;
b. EFEJUKU V. AZIZA (2013) NWLR (P1.1365).

That in the case of Aerobell (supra) the Court held that where there is a condition precedent in a consent judgment, unless such conditions are met, the consent judgment is unenforceable.
That by the consent judgment as agreed by the parties in paragraph 3.5 and 3.6 of the consent judgment page 19 of the record of appeal, the consent judgment which adopted the agreement of the parties created a binding contract between the Appellant and Respondent. That the contract made became binding only upon the fulfillment of certain condition precedent by the Respondent which the Appellant insisted had not been fulfilled by the Respondent. That, that being the case and since Respondent had not fulfilled the said conditions precedent, it is

therefore not entitled to the trading line as contained in the consent judgment. He relied on the cases of BEST NIG LTD VS BLACKWOOD HODGE (NIG) LTD (2011) 5 NWLR (PT 239) 95 and NPA V.AHMED (2017) 12 NWLR (PT 1578) 90 F-G per OGBUNINYA, JCA.

That since the key issue here is that where a contract is made subject to certain conditions as in the instant appeal, it does not become binding until the conditions are fulfilled or met. That the agreement created a condition precedent for the Respondent to be entitled to the trading line as contained in the consent judgment but that the properties presented by the Respondent to the Appellant were worth less than the amount agreed by the parties in paragraph 3.1 of the agreement and the consent judgment hence the Respondent has failed to satisfy condition precedent and thus Appellant cannot be forced or can refused to satisfy its own side of the bargain as the Respondent have breached a fundamental clause in the contract. He urged the Court to so hold and to allow the Appeal and set aside the judgment of the trial Court.
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In response to the above submissions the Learned Silk to the Respondent contended that the

Appellant failed to show by evidence, the part of the agreement which the Respondent failed to meet up.

That the Appellant claimed that the Respondent failed to transfer assets worth 78.55 Billion to AMCON and later there was allegation on the part of Appellant that there was a short fall of 15 Billion Naira in valuation of assets transferred to AMCON.

That the Respondent had transferred assets worth 78.55 Billion to Appellant. He made reference to pages 503 – 571 Volume 2 of the printed record and the further Affidavit of Respondent which according to Learned Silk detailed how Respondent fulfilled its obligations and was cleared by the Appellant and Respondent was deprived of reciprocal obligation (provision of the required trading finance under the consent judgment. The Respondent referred to paragraphs 10 and 11 of the further and better Affidavit. That the Appellant did not deny the assertion that Respondent provided assets worth 15 Billion equivalent of the shortfall of 15 Billion Naira to Appellant. He also relied on a letter dated 25/11/2013 addressed to one Dr Patrick Ifeanyi Ubah from Appellant urging Respondent to fulfill her own part of

conditions precedent to enable Appellant proceed with full implementation of the consent judgment.

That the Respondent fully complied with the conditions in the consent judgment. He relied on pages 570 and 571 volume 2 and he reproduced paragraphs 27 and 28 of the Plaintiff’s further and better Affidavit in support of Originating Summons. That documentary evidence was provided before the lower Court by Respondent on pages 622 – 623 of the record and that AMCON wrote letter to NNPC that the disputes between the Appellant and Respondent had been resolved. The Learned Silk then reproduced the said letters and other correspondences between NNPC and AMCON on pages 22 – 25 of Respondent’s Brief of Argument.

The Learned Silk for Respondent submitted that the implication of the said letter and publication is that Respondent had fully complied with all terms in the consent judgment hence; it was absolved by the Appellant of all financial debts and liabilities. That the submissions of Appellant are intended to mislead the Court. He urged the Court to resolve all issues against the Appellant.
?
The bone of contention under issue 5 is whether by the consent

judgment between the parties as entered in Suit FHC/ABJ/CS/714/2012 on 21-6-43 the Appellant was in breach of the said judgment pertaining to the obligation of the Respondent to provide assets with minimum transfer value of 78.55 Billion Naira to the Appellant. The Appellant under the same consent judgment must upon the transfer of the said asset with minimum value of 78.55 Billion Naira shall provide the Respondent with a 16 Billion Naira Trading Line and 10,590,000,000.006 (Ten Billion Five Hundred and Ninety Million Naira) to pay sundry creditors of the Respondent.

There is accusation and counter accusation that each side breached the term of agreement aforesaid as encapsulated and contained in the consent judgment the parties. The Respondent claimed it has fulfilled her obligations under the term of settlement of agreement which was made the consent judgment of 21-6-2013. The agreement was signed on and executed on 18/6/2013 and filed that day in Suit FHC/ABJ/C5/714/12.
?
Appellant on the other side maintained that the Respondent failed to fulfill the obligations and as such they did not owe

the Respondent any obligation to pay the monies aforementioned to Respondents to meet her obligations to some customers and to pay some debts.

The question again is whether enforcement of consent judgment or punishment for its breach by any of the parties to it is through institution of another action to compel performance on the part of the defaulting party?
I think in order to find answer to the above question it is necessary to find out the real meaning, import and implications of the consent judgment;
1. Black’s Law Dictionary 10th Edition defines consent judgment otherwise known as agreed judgment as follows:
“A settlement that becomes a Court Judgment when the Judge sanctions it. In effect, an agreed judgment is merely a contract acknowledged in open Court and ordered to be recorded, but it binds the parties as fully as other judgments. Also termed consent judgment; stipulated judgment; judgment by consent.”
2. ALBERT AFEGBAI V ATTORNEY – GENERAL, EDO STATE & ANOR (2001) 14 NWLR ( PART 733) 425 AT 454 E – H to 455 A – D per KARIBI-WHITE, JSC who said:
“There is a consent Judgment where parties to an action in Court have

fashioned out an agreement as to how to settle their dispute out of Court and apply to the Court to give judgment on the terms they have agreed upon. Such judgment when given is called a judgment by consent and serves as a final determination of the dispute between the parties – See N. W.R.D. v Jaiyesimi (1963) 1 All NLR 215; (1963) 2 SCNLR 37. – See also Woluchem v. Wokoma (1974) 3 SC. 135: (1974) 1 All NLR 605 at p. 617.
A consent judgment is a final decision, since it finally determines the issues and dispute between the parties – See N.W.R.D. v Jaiyesimi (1963) 1 All NLR 215. It is a final decision within S.241(1)(a) of the Constitution 1999. However, leave of the High Court or of the Court of Appeal is required for the exercise of a right of appeal. -See S.241 (2)(c) of the Constitution 1999. A judgment of Court which finally settles the lights of the parties in the subject matter of the claim in the sense that it was not given in default of a statement of defence is a final judgment- See Babajide v. Aisa(1966) 1 All NLR 254.
It is well settled law that to have a valid consent judgment the parties must be ad idem as to the agreement, and the terms of

settlement must be filed in Court. It is the order of Court based upon the terms of settlement that is the consent judgment- See Woluchem v. Wokoma (1974) 3 SC. 153. An aggrieved party can appeal against the order of consent judgment with leave of the Court – see S.241 (2)(c) Constitution 1999 .
A consent judgment will not be set aside on grounds of unilateral mistake, unless the mistake, was induced by fraud or misrepresentation. -See Akinwunmi v. Idewu (1969) 1 All NLR 319.
It is clear from the facts of the appeal before us that the consent judgment entered into by the parties is binding on the parties – See Alomasojo v. Ibru (1973) 4 SC. 13. The parties in this case on the evidence before the Court have requested the making of the order. See Thanni v. Adegboyega (1971) 1 NMLR 369. When a consent judgment has been obtained, it remains binding on the parties until set aside by a fresh action, if it can be established to have been obtained by fraud – See Talabi, v Afeseye (1972) 8-9 SC. 20, Akanbi v. Durosaro (1998) 12 NWLR (Pt.577) 284 Enigbokan v. Baruwa (1998) 8 NWLR (Pt.560) 96”.

3.STAR PAPER MILL LTD & ANOR VS BASHIRU ADETUNJI & OR (2009) 6 – 7 SC (PT 111) 6 – 8 AT 76 -77 per MUNTAKA-KOOMASSIE, JSC who said:
“It must be pointed out that it is one of the cardinal principles of our judicial system to allow parties to amicably resolve the disputes between them. By doing so, the otherwise hostile relationship between the parties would be amicably resolved and cemented. It is this amicable resolution of disputes by the parties that is called Settlement. When the terms of such Settlements are reduced into writing, it is now called ‘Terms of Settlement’, when the Terms of Settlement are filed they are called and made the Judgment of the Court. It is then crystalised into ‘Consent Judgment’. When Consent Judgment is given, none of the parties has the Right of Appeal, except with the Leave of Court. Hence, Consent Judgment is a contract between the parties whereby rights are created between them in substitution for order of consideration of the abandonment of the Claim or Claims pending before the Court. This is intended to put a stop to litigation between the parties just as much as a Judgment which results from the

decision of the Court.
35 In the recent decision of this Court in Race Auto Supply Company Limited & Ors. v. Akib (2006) 6 S.C. 1; or (2006) 6 SCNJ 98, (2) His Lordship Ogbuagu, JSC., at p. 17, defined what a Consent Judgment is as follows:-
“It is a Judgment entered pursuant to an agreement between the parties. See Woluchem v. Wokoma (1974) 3 S.C. 153 at 166; (1974) 3 S.C. (Reprint) 115. A consent thus by its nature, is first and foremost, a contractual agreement between the parties. Thus, a consent Judgment constitutes a final Judgment of the Court and it is only appealable with the Leave of the Court. See Otunba Ojora v. Agip Oil Plc. & Anor. (2005) 4 NWLR (Pt.916) 515.”
Mohammed, JSC, in Race Supply Company Ltd v. Akib (supra) stated the position beyond any doubt thus:-
“In line with this definition, where the parties before a Court have agreed on how their dispute should be determined and ask the Court to enter Judgment by consent and in accordance with their Terms of Settlement and the Court orders with their consent that a Judgment be entered, the

product is a Consent Judgment. In this regard it is necessary to point out that a Consent Judgment or Order is as effective in law in respect of all the matters which are herein settled as any other Judgment or Order arrived at after the matters are fully fought out to the end in a full trial. As Lord Herschel LC., explained in the case of In Re South ;America and Mexican Company Ex-Parte Bank of England (1885) 1 CFI. 37 at 50:-
“The truth is a Judgment by consent is intended to put a stop to litigation between the parties just as much as is Judgment which result from the decision of the Court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such Judgment and were to allow question that were really involved to the action to be fought over again in a subsequent action,” (Underlined mine).
4. CBN VS INTER STELLA COMMUNICATIONS LTD & ORS (2018) 7 NWLR (PART 1618) 294 AT 252 E per RHODES-VIVOUR JSC who said:
“Where parties to a suit in Court have agreed with each other as to how to settle their dispute they are

to approach the Court to give judgment on the terms they have agreed upon. Such judgment when given is a consent judgment as it serves as a final disposal of the dispute between the parties. See WOLUCHEM V. WOKOMA (1974) 3 SC P. 153.”
5. ALHAJI WAHAB ARIJE & ORS (2018) 16 NWLR 67 – 91 G per KEKERE EKUN, JSC who said:
“A consent judgment is binding between the consenting parties and their privies and is effective in respect of the matters settled therein in the same manner as any judgment given thereafter in respect of matters fully fought out to the end. See: VULCAN GASES LTD V. GESELLSCHAFT FUR INDUSTRIES GASSVERWERTUNG A-G. (G.I. V) (2001) 9 NWLR (PT.71 9) 610; (2001) LPELR – 3465 (SC) 1 AT 50 -51 D-A; TALABI V. ADESEYE (1972) 1 A11 NLR (PT. 2) 255.”
6. LAUWERS IMPORT – EXPORT V. JOZEBSON IND. LTD (1988) 3 NWLR (PART 83) 429 AT 445 D-H TO 446 A – C per AGBAJE, JSC.
It must be stated that upon entering into terms of settlement duly executed between the parties to this Appeal filed on 18th June 2013 in suit FHC/ABJ/C5/714/2012 the Learned Trial Judge KAFARATI, J. who also gave judgment now on Appeal entered the said terms of settlement

as judgment in Suit No. FHC/ABJ/CS/714/2012 on 21st day of June, 2013.
Page 18 of the record of appeal shows that the Federal High Court entered judgment as per the terms of settlement aforesaid between the parties who are also the parties to this suit. The Learned Trial Judge in FHC/ABJ/C5/714/2012 entered judgment as follows:
“IT IS HEREBY ORDERED AS FOLLOWS:
i. THAT JUDGMENT IS HEREBY entered between the parties on record as per the terms of settlement filed on 18th day of June, 2013 and duly executed by the parties and their witnesses.(sic)?
There was/is a final judgment (consent) given by the Federal High Court between the parties on 21-6-2013 as aforesaid. The judgment is an enforceable or executory judgment which from that date gave rights to any of the parties to enforce the judgment against the other in case of any transgression or breach of the terms of the consent judgment. See ALHAJI ISA NOEKOER V. EXECUTIVE GOVERNOR OF PLATEAU STATE 6( ORS (2018) 16 NWLR (PART 1646) 481 AT 501 -H per PETER – ODILI, JSC who said:
?It is necessary to point out that the judgment of the trial Court is executory and

therefore remains subsisting and must be obeyed even if the person affected by it believes that it is void. The validity and it being the subsisting judgment remain until it is set aside by a Court of competent jurisdiction and not by wishful thinking. See Babatunde v. Olatunji (2000) 2 SCNJ 26 at 33 – 34; (2000) 2 NWLR (Pt. 646) 557.
It is in that mindset that the Court below held thus:
“Being a judgment of that nature, it is further my view and humbly that anyone whose interest is at stake or involved may pursue its enforcement and no doubt the 1st – 5th respondents herein.”
The Court below took that slant since the judgment was executory and this Court had shed light on what an executory judgment is in the case of Oba Rasheed Ayotunde Olubunmi & Anor. v. Olabode Oyewinle & 2 Ors. (2013) 7 SCNJ 919 at 929 reported as lragbiji v. Oyewinle (2013) 13 NWLR (Pt. 1372) 566 at p. 580, paras. E-F as follows:
“An executory judgment or order is one that states the respective rights of the parties and goes the extra mile to order the defendant to act in a particular way or refrain from interfering with the Plaintiff’s

rights e.g. to pay damages or as in this case stop parading himself as the Eesa of Iragbiji.” My learned brother Aka’ahs, JSC in the said judgment had this to say at p. 585, paras. E-F.
In view of the fact that one of the reliefs granted by the lower Court in the judgment being appealed against was an order of injunction restraining the 2nd defendant (now respondent) by himself, his servants and/or agents from parading himself as the Eesa of Iragbiji which is executory, a stay of execution would lie if special circumstances are shown.”
To my mind this suit sought for the interpretation of the terms of The consent judgment between The parties in this Appeal in suit FHC/ABJ/CS/714/2012 and also contained a prayer to the Court below to declare that the Respondent had performed its own side of the bargain in the said consent judgment. Another thing that is clear from the action herein is that it sought for the enforcement of the consent judgment in the said suit FRC/AEU/CS/714/2012 vide a fresh action, the suit herein.
?I am of the firm view that the lower Court erred in acceding to the desire of the Respondent. What the lower Court has done is akin

to sitting in Appeal on its own judgment contrary to the provisions of Sheriff and Civil Process Act Section 20 thereof and Order IV Rules 1 (1) and (2) of Judgment Enforcement Rules made pursuant to Section 94 of the said Sheriff and Civil Process Act on procedure to follow to enforce a judgment.
The reliefs granted to the Respondent are not available to the Respondent vide Originating Summons Procedure. A litigant cannot seek to enforce final judgment of a Court vide a fresh action. See RACE AUTO SUPPLY COMPANY LTD & ORS V. ALHAJI FAOSAT AKIB (2006) 13 NWLR (PART 997) 333 AT 351 E 352 A – E per MOHAMMED, JSC who said:
“In this Appeal, it is necessary to examine the status of the Lagos High Court consent judgment of Obadina, J. (as he then was) of 4-5-98 which was placed before Shitta-Bey, J. of the same Lagos High Court for interpretation by the appellants under Order 46 Rule 1 of the Lagos State High Court (Civil Procedure) Rules, 1994 which provides:
“Any person claiming to be interested under a deed will or other written instrument may apply by originating summons for the determination of any question of construction arising under

the instrument and for declaration of the rights of the parties interested.”
The question is whether the consent judgment of 4-5-98 between the parties which was before the trial Court for interpretation on the application of the appellants comes within the definition of “written instrument” capable of being accommodated under the rule. The word ‘instrument’ is defined in Strouds Judicial Dictionary, as ‘anything reduced to writing, a document of formal or solemn character’. However, whether anything reduced to writing is an instrument largely depends on the con in which it is used. For example the same Strouds Judicial Dictionary, Volume 3 at page 1386 stated plainly that “orders of Court were not instrument within Apportionment Act, 1834”. One may find support in this observation by Stroud to say that a judgment of a Court of law can hardly be accommodated under the words “other written instrument” under rule 1 of Order 46 of the Lagos High Court (Civil Procedure) Rules, 1994, under which the appellants filed their application for the interpretation of the consent judgment of 4-5-98. In other words a judgment of a Court of law cannot be

subjected to interpretation by a Court of co-ordinate jurisdiction like a deed, a will or an instrument containing right and obligation of parties under Order 46 Rule 1 of the Lagos High Court (Civil Procedure) Rules. In any case, even if the consent judgment in the present case were to be regarded as instrument under Rule 1 of Order 46, the provision would not give a High Court jurisdiction to determine any question of construction or interpretation arising from the judgment of a Court of co-ordinate jurisdiction like the Lagos High Court presided by Obadina, J. (as he then was) and the same Court as presided by Shitta-Bey, J. or that of a higher Court like the Court of Appeal or this Court. If a judgment of a Court of law were to be regarded as an instrument like a deed or will, then even the judgment of the Court of Appeal or this Court could be subjected to interpretation by the High Court under Order 46 Rule 1 which is rather absurd. In the present case therefore, the Court below was quite right in its decision that the trial Lagos High Court presided over by Shitta-Bey, J. lacked competence to subject the consent judgment of the same Court delivered by

Obadina, J. (as he then was) to interpretation of the contents or terms thereof.”
What the Learned trial Judge did in this case is not enforcement of judgment as envisages under Section 287 (3) of the Constitution of the Federal Republic of Nigeria 1999 as amended. It is the Registry of the Court, the Sheriffs and Bailiffs under and pursuant to Sheriffs and Civil Processes Act that can enforce the judgment upon the Application of a Judgment Creditor.
The institution of this suit with the sole aim of enforcement of the consent judgment borders on abuse of Court process. The orders made and reliefs granted in favour of Respondent arc all wrongful and are liable to be set aside. See:
1. TIMIPRE SYLVIA V INEC & ORS (2015) 16 NWLR (PART 1486) 576 AT 623 – 624 G – C per NGWUTA, JSC.;
2. HON. TITUS ADENIYI OYEYEMI RTD & ORS V. HON.TIMOTHY OWOEYE (2017) 12 NWLR (PART 1580) 364 AT 397 C-H per SAGE, JSC who said:
“The logic of judicial sanctity dictates that the earlier suit and its appeal ought to be rested and decided one way or the other including whether or not the appeal was validly withdrawn. By instituting another action which

embodies the issues as in the earlier action on appeal makes the later manifestly an unpardonable abuse of court process. This Court has succinctly enunciated in Ntuks v. NPA (2007) 13 NWLR (Pt. 1051) 392 at 419-420, paras. H-C on the meaning of abuse of Court process and held that:
“Abuse of Court process generally means that a party in litigation takes a most irregular, unusual and precipitates action in the judicial process for the sake of action qua litigation, merely to waste valuable litigation time. It is an action which could be avoided by the party without doing any harm to the matter in dispute. The process of the Court is used malafide merely to overreach the adversary to the direct annoyance of the Court. The Court process is initiated with malice or in some premeditated or organized vendetta, aimed at frustrating either the quick disposal of the matter or the abatement of the matter for no good cause. The Court process could also be said to be abused where there is no iota of law supporting it. In other words, the Court process is premised or founded on frivolity or recklessness.”

?Issue 5 is resolved in favour of the Appellant.

In all, the Appellant’s appeal has merit and Appellant’s appeal is hereby allowed. The judgment of the Federal High Court contained in the judgment delivered by HON.JUSTICE KAFARATI on the 6th October, 2016 is hereby set aside. The Appellant’s suit FHC/ABJ/CS/514/2015: CAPITAL OIL AND GAS INDUSTRIES LTD VS ASSET MANAGEMENT CORPORATION (AMCON) is hereby struck out. The Appellant is entitled to cost assessed at N250,000.00 (Two Hundred and Fifty Thousand Naira) only against the Respondent in favour of the Appellant.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I had the preview of the lead judgment of my learned brother, PETER OLABISI IGE, J.C.A.
I am in agreement with his reasoning and conclusion and orders reached therein.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, LORD JUSTICE PETER OLABISI IGE, J.C.A. I agree with the reasoning, conclusions and orders therein.

Appearances:

Aminu Sadauki, Esq. with him, Hussaini Hussaini, Esq. and Hadiza Abdulmumini (Miss)For Appellant(s)

Ahmed Raji, SAN with him, Charles Ndukwe, Esq., Adeola Adedipe, Esq., Muktar Aliyu, Esq. and F.A. Shehu, Esq.For Respondent(s)

Appearances

Aminu Sadauki, Esq. with him, Hussaini Hussaini, Esq. and Hadiza Abdulmumini (Miss)For Appellant

AND

Ahmed Raji, SAN with him, Charles Ndvkwe, Esq., Adeola Adedipe, Esq., Muktar Aliyu, Esq. and F.A. Shehu, Esq.For Respondent

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