ASSORTED FOODS & INTEGRATED BEVERAGES LTD & ORS v. AMCON & ANOR
(2020)LCN/14351(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, June 05, 2020
CA/A/568/2018
Before Our Lordships:
Abubakar Datti Yahaya Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Amina Audi Wambai Justice of the Court of Appeal
Between
- ASSORTED FOODS AND INTEGRATED BEVERAGES LTD 2. ADEMOLA IFABIYI 3. OLUWATOYIN KUNLE IFABIYI 4. EYITOPE IFABIYI APPELANT(S)
And
- ASSET MANAGEMENT CORPORATION OF NIGERIA 2. JOE DAPPAH, ESQ. (Trading Under The Name And Style Of Joe Dappah & Co) RESPONDENT(S)
RATIO
THE ESSENCE OF A NOTICE OF APPEAL
The notice of appeal is the spinal cord of this appeal; it is the originating process which sets the ball rolling for the proper, valid and lawful commencement of an appeal. It contains what the subject matter of the appeal is – Aderibigbe Vs Abidoye (2009) 10 NWLR (Pt 1150) 592, Akpan Vs Bob (2010) 17 NWLR (Pt 1223) 421, Dingyadi Vs Independent National Electoral Commission (No 1) (2010) 18 NWLR (Pt 1224) 1. It is the foundation upon which the jurisdiction of this Court to entertain this appeal is predicated – Uwazurike Vs Attorney General Federation (2007) 8 NWLR (Pt 1035) 1, Odunze Vs Nwosu (2007) 13 NWLR (Pt 1050) 1 and First Bank of Nigeria Plc Vs Maiwada (2013) 5 NWLR (Pt 1348) 444. And the notice of appeal, just like pleadings, is binding on the parties – Federal Airport Authority of Nigeria Vs Greenstone Ltd (2009) 10 NWLR (Pt 1150) 624. PER ABIRU, J.C.A.
THE DUTY OF THE APPELLATE COURT IN EXERCISING ITS JURISDICTION
The law is that the Court in exercising an appellate jurisdiction can only determine issues that arose out of complaints against the judgment/Ruling of the lower Court in respect of which notice and grounds of appeal were filed and submitted for adjudication. It cannot entertain issues that did not arise from a judgment/Ruling not appealed against. No Court has inherent appellate jurisdiction – Isiaka Vs Ogundimu (2006) 13 NWLR (Pt 997) 401, Anah Vs Anah (2008) 9 NWLR (Pt 1091) 75, Adefeyisan Vs Odegbesan (2020) LPELR 49494(CA). PER ABIRU, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF INTERPRETATION OF DOCUMENTS
It is a settled principle of interpretation of documents that where the language used by parties in couching the terms or provisions of a document are clear and unambiguous, the Court must give the operative words in the document their simple, ordinary and actual grammatical meaning – Union Bank of Nigeria Plc Vs Ozigi (1994) 3 NWLR (Pt 333) 385, Isulight (Nig) Ltd Vs Jackson (2005) 11 NWLR (Pt 937) 631, Egwunewu Vs Ejeagwu (2007) 6 NWLR (Pt 1031) 431.
It is also settled that in interpreting a document, the document must be read as a whole, and not parts in isolation, and that the different parts of the document must be interpreted in the light of the whole document and an effort must be made to achieve harmony amongst its different parts – Unilife Development Co Ltd Vs Adeshigbin (2001) 2 SCNJ 116, Mbani Vs Bosi (2006) 11 NWLR (Pt 991) 400, Adetoun Oladeji Nig. Ltd Vs Nigerian Breweries Plc (2007) 1 SCNJ 375, Agbareh Vs Mimra (2008) 2 NWLR (Pt 1071) 378, Nigerian Army Vs Aminun-Kano (2010) 5 NWLR (Pt 1188) 429. PER ABIRU, J.C.A.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision contained in the Ruling of the Federal High Court, Abuja Judicial Division and delivered in Suit No FHC/ABJ/CS/352/2015 by Honorable Justice B. O. Quadri on the 16th of May, 2018. The Respondents commenced the action in the lower Court against the Appellants by a General Claim Form filed on the 24th of April, 2015 and their claims were for:
i. The sum of N1,264,769,372.10 (One Billion Two Hundred and Sixty Four Million, Seven Hundred and Sixty Nine Thousand, Three Hundred and Seventy Two Naira, Ten Kobo) against the Appellants jointly and severally.
ii. Interests against the Appellants jointly and severally on the said sum at the rate of 15% per annum from the 18th of March, 2015 to the date of judgment.
iii. 15% interest against the Appellants jointly and severally on the total judgment sum with effect from the date of the judgment until the judgment sum is fully liquidated.
iv. An order foreclosing the Appellant’s rights, interests and titles in and over the properties at No 136, Aminu Kanu Kano Crescent, Wuse II, Abuja
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and No 44, Ekumakiman Street, Utako District Abuja and all other moveable properties therein contained.
v. An order empowering the second Respondent, duly empowered by his letter of appointment to sell the assets pledged under the agreement dated 13th of March, 2014.
vi. Legal costs in the sum of 5% of judgment sum and 5% of total sum realized as interest on the judgment sum from date of judgment until judgment sum is fully liquidated.
vii. General damages in the sum of N100 Million.
The case of the Respondent on the statement of claim that accompanied the General Claim Form was that sometime in January 2008, the Appellants sought for and obtained a term loan of N500 Million from the now defunct Oceanic Bank Plc for the purposes of expanding the business concerns of the first Appellant and the agreed repayment period was twenty-seven months. It was their case that the facility expired in May 2010 without the Appellants making any repayment thereof despite several promises and undertakings to do so and that as at December, 2009, the debit balance in the statement of account of the Appellants with the defunct Oceanic Bank Plc, as acknowledged
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by the Appellants in a letter dated 14th of April, 2009, was N621 Million. It was their case that by December 2010, the debit balance had risen to N772,967,613.82 because of the failure and neglect of the Appellants to make any repayment and that Oceanic Bank Plc ran into rough waters and became an Eligible Financial Institution and the liability of the Appellant an Eligible Bank Asset liable for sale to the first Respondent.
It was the case of the Respondents that Oceanic Bank Plc by a Loan Purchase and Limited Service Agreement made in December, 2010 sold the indebtedness of the Appellants to the first Respondent for the sum of N645.8 Million and that in February, 2011, the Respondent notified the Appellants in writing of the assignment of their liability to it and the letter was acknowledged by the Appellants by a letter dated 3rd of March, 2011. It was their case that the parties exchanged correspondences and entered into negotiations which culminated in an agreement of a settlement amount of N888,912,755.89 to be paid in sixty equal monthly installments together with interest at the rate of 15% per annum and this was evidenced by the
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Respondents’ letter of 14th of December, 2011 and acceptance of same by the Appellants vide a letter dated 22nd of December, 2011. It was their case that it was also agreed that the security for the indebtedness shall continue to be the properties at No 136, Aminu Kanu Kano Crescent, Wuse II, Abuja and No 44, Ekumakiman Street, Utako District Abuja pledged by the Appellants.
It was their case that the Appellants defaulted in making the payments as agreed despite repeated demands in writing and that the indebtedness was further restructured at the request of the Appellants and consequent on which an agreement dated 13th of March 2014 was executed by the parties. It was agreed that the balance outstanding from the Appellants to the Respondents as at 17th of February, 2014 was the sum of N1,088,020,450 (One Billion, Eighty Eight Million, Twenty Thousand, Four Hundred and Fifty Naira) and that this would be repaid over a three year period in eleven equal quarterly installments with interest at the rate of 15% per annum and that the earlier pledged properties will be the security for the indebtedness. It was their case that the Appellants failed to make
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the agreed repayments despite repeated demands and whereupon the first Respondent instructed the commencement of the action for the recovery of the indebtedness which stood at N1,264,769,372.10 (One Billion Two Hundred and Sixty Four Million, Seven Hundred and Sixty Nine Thousand, Three Hundred and Seventy Two Naira, Ten Kobo) as at April, 2015. It was their case that the Appellants had no defence to the action.
The records of appeal show that on the 20th of April, 2015, the Respondents filed a motion ex parte dated the 16th of April, 2015 praying for orders of interim possession of the two properties at No 136, Aminu Kanu Kano Crescent, Wuse II, Abuja and No 44, Ekumakiman Street, Utako District Abuja and of all the moveable properties contained in them pending the hearing and determination of the claim. The lower Court took arguments on the application and granted same on the 29th of April, 2015. The records show that the Respondents filed another motion ex parte dated the 6th of May, 2015 praying for orders enabling the Deputy Sheriff of the lower Court and the Commissioner of Police of the Federal Capital Territory to effect the enforcement of the
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prayers of interim possession granted on the 29th of April, 2015 and to secure the said properties. The lower Court heard and granted the application on the 11th of May, 2015.
The records of appeal show that upon the execution of the ex parte orders on the 19th of May, 2015, the Appellants filed a motion on notice dated the 22nd of May, 2015 praying for an order setting aside the two ex parte orders for failure of the Respondents to effect service of the General Claim Form, Statement of Claim and all other originating processes on the Appellants. In the affidavit in support of the application, the Appellants deposed that upon being served with the ex parte orders they caused their Counsel to apply for and obtain certified true copies of all the originating processes. The records further show that on the 26th of May, 2015, the Appellants filed a second motion dated the 26th of May, 2015 praying for the setting aside of the ex parte orders on the ground that they had lapsed. The Respondents opposed both applications and filed relevant processes. The lower Court took arguments on the motion of the Appellants dated the 22nd of May, 2015 and it dismissed same
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in a considered Ruling delivered on the 2nd of July 2015. The lower Court found in the Ruling that by the provisions of Section 49(1) and (3) of the AMCON Act of 2010 and of the AMCON Practice Directions of 2013, it was empowered to grant the ex parte orders even before the Respondents commenced the substantive action and that as such the failure to serve processes on the substantive suit did not affect the validity of the orders. The lower Court directed the Appellants to file their statement of defence to enable the hearing of the matter proceed on the merits. The records also show that the lower Court took arguments on the application of the Appellants dated the 26th of May, 2015 and it dismissed same in a considered Ruling delivered on the 19th of October, 2015.
There is nothing in the records of appeal showing that the Appellants filed a statement of defence to the claims of the Respondents. The records show that trial commenced in the lower Court and the Respondents led their witness in evidence on the 8th of December, 2015 and 18th of January, 2016 and the Appellants were represented in Court by Counsel and at the conclusion of the evidence in
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chief of the witness of the Respondents, the lower Court adjourned the matter for cross examination or for report of settlement. The matter came up on the 22nd of February, 2016 and on the 19th of April, 2016 and the Appellants were again represented in Court by Counsel and Counsel to the parties sought for further adjournments to enable the parties conclude the details of the settlement. The records show that when the Appellants were apparently not forthcoming with their proposals for settlement, the Respondents filed a motion dated the 5th of October, 2016 praying the lower Court to enter summary judgment against the Appellants in the terms of their claims and their case on the motion was in the terms of their case in the substantive suit. The Appellants responded by filing a counter affidavit deposed to on the 11th of October, 2016.
The Appellants admitted taking a loan of N500 Million from the defunct Oceanic Bank Plc in January 2008 but it was their case in the counter affidavit that contrary to their belief and upon which they entered into a series of correspondences with the Respondents, there was nothing in the Loan Purchase and Limited Service
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Agreement showing that Oceanic Bank Plc sold their indebtedness to the Respondents. It was their case that they were not served with the originating processes in the matter in accordance with the provisions of the AMCON Act and the AMCON Practice Directions, but that notwithstanding all these, they have since amicably resolved the matter with the Respondent and they exhibited a letter dated 3rd of May, 2016 written by the first Respondent stipulating settlement conditions and their Counsel prayed the lower Court to enter judgment in the terms agreed in the letter instead of as claimed by the Respondents.
The records of appeal show that the lower Court took arguments on the motion for summary judgment and it delivered a considered Ruling on the 16th of May, 2018 wherein it diminished the contentions of the Appellants as not strong enough to debar it from entering summary judgment in favour of the Respondents and it accordingly entered judgment for the Respondents in the terms of their claims. The Appellants were dissatisfied with the Ruling and they caused their Counsel to file a notice of appeal dated the 16th of May, 2018 and containing two grounds of
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appeal against it. In arguing the appeal before this Court, Counsel to the Appellants filed a brief of arguments dated the 16th of June, 2018 on the 27th of June, 2018.
In response, Counsel to the first Respondent filed a notice of preliminary objection dated the 6th of January, 2000 on the 13th of January, 2000 challenging the competence of the appeal as well as a first Respondent’s brief of arguments also dated the 6th of January, 2000 on the 13th of January, 2000. The first Respondent’s brief of arguments was deemed properly filed by this Court on the 9th of March, 2020. Counsel to the Appellants filed a Reply brief of arguments dated the 16th of January, 2020 and the Reply brief too was deemed properly filed by this Court on the 9th of March, 2020. The second Respondent did not file a response to the appeal. At the hearing of the appeal, Counsel to the Appellants and the first Respondent adopted and relied on the arguments in their respective briefs of arguments in contending on the preliminary objection and the substantive appeal.
The Court will start its deliberations with the preliminary objection of the first Respondent. The
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preliminary objection was predicated on five grounds; namely: that (i) the appeal is statute barred; (ii) the appeal is incompetent and the Court of Appeal is without jurisdiction to entertain same; (iii) Ground One of the grounds of appeal is incompetent (iv) Ground Two of the grounds of appeal is incompetent and (v) the prayer contained in the notice of appeal is incompetent. The Court will resolve the contentions on each ground of the preliminary objection separately, save for grounds three and four that will be resolved together as they are similar.
Ground One of the Preliminary Objection
In arguing the first ground of the preliminary objection, Counsel to the first Respondent stated that by the provisions of Section 53 (5) of the Asset Management of Corporation of Nigeria (AMCON) Act 2010 as amended in 2019, this Court is bound to hear and determine the appeal within sixty days from the date the appeal was filed and that this appeal having been filed on the 16th of May, 2018 has been pending for more than sixty days. Counsel stated that though the amendment to the AMCON Act was done in 2019 after the filing of this appeal, it is a provision that
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affects the practice and procedure of the Court in hearing an appeal of this nature and that since the Appellants have no vested interest in the procedure of the Court, the provision must be given a retrospective construction and is applicable to the present appeal, notwithstanding that it was filed before the amendment and he referred to and quoted from the unreported decision of the Supreme Court in Appeal No SC 128/2018Onyeke Vs PDP delivered on the 21st of February, 2019. Counsel urged the Court to find that action was statute barred and liable to be struck out.
Counsel to the Appellants responded to the preliminary objection in their Reply brief of arguments. In arguing on the first ground of the preliminary objection, Counsel reproduced the provisions of Section 53(5) of the amended AMCON Act and stated that it was obvious that the provision on the sixty days time limit for hearing appeals will not come into effect until the Chief Judges of High Courts throughout the Federation had designated some of their Courts as AMCON Courts and the President of the Court of Appeal had issued a Practice Direction exclusively applicable to appeal from the Courts
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so designated by the Chief Judges as AMCON Courts. Counsel stated that there was nothing to show that the Chief Judges of High Courts in the Federation had so designated some of the Courts as AMCON Courts and that the President of the Court of Appeal was yet to issue the necessary Practice Directions exclusively applicable to appeal from those Courts. Counsel stated that the Practice Directions of the Court of Appeal issued in 2013 and the one issued in 2014 were not exclusively for appeals from the designated AMCON Courts, but also covered appeals on some other types of cases outside AMCON cases. Counsel stated that the provision of Section 53(5) of the AMCON Act had not thus kicked in to affect the present appeal and that moreover, the provision did not say that it would be of retrospective application and that the Respondents cannot by their word of mouth say that it had retrospective application and he referred to the case of Afolabi Vs Governor of Oyo State (1985) 2 NWLR (Pt 9) 734. Counsel urged the Court to find the first ground of the preliminary objection inapposite and to dismiss same.
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It is correct that Section 53 (5) of the Asset Management of Corporation of Nigeria (AMCON) Act 2010 as amended in 2019 stipulates that the Court of Appeal shall hear and determine all appeals arising from the Courts designated to hear AMCON related matters within 60 days of the filing of the appeal and in priority to other appeals. The Supreme Court has held that a provision as to time for hearing and determining cases in Court on a particular subject matter is one as to procedure, and not substantive law, and that as such it has retrospective application, irrespective of whether or not the statute making the provision so provides, and that it applies to all pending and future cases on that subject matter – Kusamotu Vs All Progressive Congress (2019) LPELR 46802(SC), Anyanwu Vs Eze (2019) LPELR 48740 (SC), Oni Vs Fayemi (2019) LPELR 49299 (SC), Toyin Vs Musa (2019) 9 NWLR (Pt 1676) 22. Thus, ordinarily the provision of Section 53 (5) of the Asset Management of Corporation of Nigeria (AMCON) Act 2010 as amended in 2019 applies to the instant appeal, notwithstanding that the provision was introduced into the AMCON Act by the amendment of 2019, after the appeal had been commenced.
These said however, the real
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question arising under the first ground of the preliminary objection is – whether the provision of Section 53(5) of the AMCON Act (as amended) has the potency or capability of circumscribing, limiting or restricting the powers of this Court to determine an appeal arising from the Courts designated to hear AMCON related matters outside sixty days from the date of filing of the appeal?
Now, this Court is the creation of the Constitution and its jurisdiction is provided for in Section 240 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The Section reads:
“Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Sharia Court of Appeal of a State, Customary Court of Appeal of the Federal Capital Territory, Customary Court of Appeal of a State and from the decisions of a Court Martial or other Tribunals as may be prescribed by an Act of the
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National Assembly.”
This provision is prefaced by the phrase “subject to” and the law is that when the phrase is used in a statute, it means liable, subordinate, subservient, or inferior to, governed or affected by; provided that or; answerable for. The term introduces a condition, a restriction, a limitation. It subordinates the provisions of the subject section to the section empowered by reference thereto and which is intended not to be diminished by the subject section. The expression generally implies that what is subject to shall govern, control and prevail over what follows in that subject section of the enactment, so that it renders the provisions to which it is subject conditional upon compliance with or adherence to what is prescribed in the provisions to which it is subject – Oke Vs Oke (1974) 1 All NLR (Pt 1) 443, L.S.D.P.C Vs Foreign Finance Corp (1987) 1 NWLR (Pt 50) 413, Aqua Ltd Vs Ondo Sports Council (1988) 4 NWLR (Pt 91) 622, Tukur Vs Government of Gongola State (1989) 4 NWLR (Pt 117) 517, Idehen Vs Idehen (1991) 6 NWLR (Pt 198) 382, Labiyi Vs Anretiola (1992) 8 NWLR (Pt.258) 139, N.D.I.C Vs Okem Enterprises Ltd
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(2004) 10 NWLR (Pt.880) 107, Federal Republic of Nigeria Vs Osahon (2006) 1 All NLR 374.
What these translate to is that the jurisdiction of this Court under the provision of Section 240 of the Constitution is only subordinate and subservient to and can only be limited, restricted or circumscribed by the provisions of the Constitution. Reading through the entire provisions of the 1999 Constitution (as amended), apart from the provisions of Section 285 which provides for time within which this Court is to hear and determine appeals in election and pre-election matters, the only provisions that stipulate the period of time for this Court to carry out its tasks of hearing and determining appeals are Sections 36 (1) and 294 (1). Section 36 (1) states:
“In the determination of his civil rights and obligation, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law…” (underlining for emphasis)
Section 294 (1) provides:
“Every Court established under this Constitution shall
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deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all the parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
Of these two provisions, only Section 36(1) of the Constitution deals with the hearing of an appeal. The term “a reasonable time” used in the provision has been the subject of interpretation by the Supreme Court and the consensus is that it means a period of time that is not too short or too long depending on the nature and circumstances of the case. The question of whether the time for the hearing and determination of a case by a Court or tribunal is reasonable is a question of fact to be decided according to the circumstances of each case. There is no hard and fast rule but all the circumstances of the case ought to be taken into account in deciding what is ‘a reasonable time’ – Ariori Vs Elemo (1983) LPELR 552(SC), Nnajiofor Vs Ukonu (1985) 2 (Pt 9) 686, Danladi Vs Dangiri (2015) 2 NWLR (Pt 1442) 124.
In other words, there is no provision in the
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Constitution which stipulates a time frame within which this Court is to hear and determine appeals, except in election and pre-election matters. The duty placed upon this Court by the Constitution is that in exercising its jurisdiction of hearing appeals in matters other than election and pre-election matters, it should hear and determine them within a period of time that is neither too short nor too long depending on the nature and circumstances of the case. In other words, the length of time for hearing an appeal is left entirely to the Court to determine, depending on the facts and circumstances of each appeal.
The provision relied upon by the first Respondent in this appeal, Section 53 (5) of the Asset Management of Corporation of Nigeria (AMCON) Act 2010 as amended in 2019, is not a constitutional provision; it is an Act of the National Assembly. It is correct that Section 4 of the Constitution vests legislative powers to make law for the Federal Republic of Nigeria in the National Assembly. This power is, however, not open-ended and it is limited. Section 4 (8) of the Constitution provides:
“Save otherwise provided by this Constitution,
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the exercise of legislative powers by the National Assembly … shall be subject to the jurisdiction of Court of law and of judicial tribunals established by law, and accordingly the National Assembly … shall not enact any law that ousts or purport to oust the jurisdiction of a Court of law or of a judicial tribunal established by law.”
Thus, the National Assembly has no power to make or pass a law that stipulates, suggests and/or implies the ouster of the jurisdiction of this Court to continue to hear and determine an appeal outside a certain number of days. The National Assembly cannot make a law that circumscribes, limits, restricts or in any way nibble at the jurisdiction of this Court to hear and determine an appeal. In Sofekun Vs Akinyemi (1980) 5-7 SC 1 at page 25, Aniagolu, JSC made the point that:
“It is essential in a constitutional democracy, such as we have in our country, that for the protection of the rights of citizens, for the guarantee of the rule of law which includes fair trial to the citizen under procedural regularity, and for checking arbitrary use of power by the Executive or its agencies, the power and
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jurisdiction of the Courts under the Constitution must not only be kept intact and unfettered but also must not be nibbled at. To permit any interference with, or a usurpation of, the authority of the Courts … is to strike at that bulwark which the Constitution gives and guarantees to the citizens, of fairness to him, against all arbitrariness and oppression. Indeed, so important is this preservation of, and non-interference with, the jurisdiction of the Courts that our present Constitution … has specifically provided (see Section 4(8)) that neither the National Assembly nor a House of Assembly shall ‘enact any law that ousts or purports to oust the jurisdiction of a Court of law or a judicial tribunal established by law.”
In Kadiya Vs Lar (1983) 11 SC 209, Irikefe, JSC, (as he then was) at pages 212-213 commented that:
“The doctrine of separation of powers is the bulwark or anchor on which the survival of this nation as a nation must depend. While each arm of Government must need respect the other arm in the interest of the smooth running of governmental machinery, such respect must never degenerate to the level of
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one arm being allowed to usurp or impinge on the exclusive domain of the other as spelt out in the Constitution.”
The purport of Section 53 (5) of the Asset Management of Corporation of Nigeria (AMCON) Act 2010 as amended in 2019 is to oust the jurisdiction of this Court to continue to hear an appeal in AMCON matters after sixty days of the filing of the appeal. It is settled that where the National Assembly makes or passes a law, such as Section 53 (5) of the Asset Management of Corporation of Nigeria (AMCON) Act 2010 (as amended), outside a constitutional amendment, stipulating a time frame for the hearing and determination of a Court action, such a law will have no potency or efficacy and cannot stop the Court concerned from continuing to hear the matter after the stipulated time frame – See the cases of Unongo Vs Aku (1983) 11 SC 129 and Kadiya Vs Lar (1983) 11 SC 209 where the Supreme Court considered and pooh-poohed the provisions in Sections 129 (3), 132 (1), 132 (2) and 140 (2) of the Electoral Act 1982 which prescribed time frames for the hearing and determination of trials of and appeals in elections petitions, and which further
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provided that any election petition not so completed shall be time barred. And the decisions of this Court in Asset Management Corporation of Nigeria Vs Ogai Investment Co Ltd (2017) LPELR 42004(CA), Odejide Vs Asset Management Corporation of Nigeria (2017) LPELR 42005(CA), Josco Global Resources Ltd Vs Asset Management Corporation of Nigeria (2018) LPELR 45637(CA) which considered and shot down the provision of Paragraph 5:3 of the AMCON Practice Directions 2013 that provides that AMCON matters should be commenced and hearing completed within three months.
Section 53 (5) of the Asset Management of Corporation of Nigeria (AMCON) Act 2010 (as amended) is thus, at best, either a suggestion or a plea to this Court to endeavour to conclude appeals in AMCON cases within sixty days of filing. It is merely directory and not an imperative or a mandatory provision. It cannot debar this Court from continuing to hear and determine this appeal after the stipulated sixty days from the date of its filing. This appeal is thus not time barred and the first ground of the preliminary objection is refused.
Ground Two of the Preliminary Objection
On the second ground
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of the preliminary objection, Counsel to the first Respondent stated that the appeal was a debt appeal involving a Debt Resolution Agency and that by Paragraph 8(3) of the Court of Appeal (Fast Track) Practice Direction 2014, the Appellants were obliged to file and serve their brief of arguments within fourteen days of the transmission of the records of appeal. Counsel stated that the records of appeal were transmitted to this Court on the 13th of July, 2018 and the Appellants filed their brief of arguments on the 27th of July, 2018 and served same on the Respondents’ Counsel on the 24th of July, 2018. Counsel stated that the Appellants did not ask for extension of time to serve the brief of arguments and/or leave of Court deeming the brief of arguments already served as properly served and that this rendered the service of the brief of arguments incompetent and the brief of arguments should be discountenanced and he referred to the case of SPDC Vs Eriata (2016) LPELR 40821(CA).
This Court must say that it is unable to make any “head or tails” of the response of Counsel to the Appellants to the second ground of the preliminary objection.
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The arguments of Counsel thereon are uncoordinated and did not address the complaint of the first Respondent in the ground of objection.
The complaint of the first Respondent on this ground of objection is that it was not served with the Appellants’ brief of arguments with the fourteen day period allowed by the Rules of Court from date of transmission of the records of appeal. Counsel stated that the records of appeal were transmitted on the 13th of July, 2018 and the Appellants filed their brief of arguments on the 27th of July, 2018 and served same on the Respondents’ Counsel on the 24th of July, 2018. It is apparent from the dates supplied by Counsel to the first Respondent in his brief of arguments that this complaint of first Respondent is incongruous. If the Appellants’ brief of arguments was served on the first Respondent on the 24th of July 2018, as stated by Counsel, this means it was served before it was filed on the 27th of July, 2018 and the service was done within fourteen days of the transmission of records of appeal on the 13th of July, 2018. Where then is the infraction complained about?
The affidavit in proof of the
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service of the Appellants’ brief of arguments is not in the Court file to enable this Court draw necessary inferences from. It is trite that parties in an appeal ought to prosecute their cases diligently and in this regard they are obliged to place before the Court all the relevant materials on the issues they have called upon the Court to consider and determine on – T. A. S. A. Ltd Vs Dantrans Nig Ltd (1996) 10 NWLR (Pt 478) 360, Nwana Vs Federal Capital Development Authority (2007)11 NWLR (Pt 1044) 59. The first Respondent did not place relevant facts or documents before this Court to support its complaint in the second ground of preliminary objection and the law is that it cannot object if this Court fails to consider the complaint as it had the opportunity to ensure that the necessary facts and documents are included in the records of appeal – Omoni Vs Tom (1991) 6 NWLR (Pt 195) 93, Okonji Vs Njokanma (1991) 7 NWLR (Pt 202) 31, Michael Vs Bank of the North (2015) LPELR 24690(SC). The second ground objection is thus not well founded.
Grounds Three and Four of the Preliminary Objection
On the third ground of objection, Counsel to
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the first Respondent posited that while it is not in doubt that an appeal against an interlocutory Ruling can be included in an appeal against a final judgment, an appellant desirous of doing so must first obtain leave to appeal against the interlocutory Ruling and he referred to the cases of Kakih Vs Peoples Democratic Party (2014) LPELR 23277, NLC Vs Pacific Merchant Bank Ltd (2012) All FWLR (Pt 640) 1211 and CBN Vs Okojie (2002) 8 NWLR (Pt 768) 488. Counsel stated that by the provisions of Section 24(2) of the Court of Appeal Act, a party has fourteen days within which to appeal against an interlocutory Ruling of a trial Court to this Court. Counsel stated that the first ground of appeal of the Appellant in the notice of appeal filed on the 16th of May, 2018, after the final judgment, was against the interlocutory Rulings of the lower Court delivered on the 2nd of July, 2015 and 19th of October, 2015. Counsel stated that this was way outside the fourteen day period allowed for such appeal and that the ground of appeal was included in the notice of appeal without the Appellant having first obtained the leave of Court and it was thus incompetent and liable to
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be struck out and he referred to the case of Forby Engr. Co Ltd Vs AMCON (2018) LPELR 43861(CA).
Further, Counsel referred to the case of Poroye Vs Makarfi (2017) LPELR 42738(SC) in reiterating the settled principle that a ground of appeal must relate to the decision appealed against and should challenge the validity of the ratio decidendi of the decision reached by the lower Court and he stated that the first ground of appeal was totally unrelated to the two Rulings of the lower Court delivered on the 2nd of July, 2015 and 19th of October, 2015 against which it was directed. Counsel traversed through the prayers sought on the applications leading up to the two Rulings as well as the findings of the lower Court in the two Rulings and stated that there is a disconnect, and no relationship, between the ground of appeal and the findings in the two Rulings. Counsel stated that this rendered the first ground of appeal incompetent and liable to be struck out. Counsel also contended that the first ground of appeal was incoherent, vague and did not disclose a reasonable cause of action as there was no relationship between the ground and its particulars and this
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also rendered the ground of appeal incompetent and he referred to the case of Nyako Vs Adamawa State House of Assembly (2016) LPELR 41822(SC).
In arguing the fourth ground of the preliminary objection, Counsel to the first Respondent stated that the issue of mutual belief, assumption or conclusion by the parties in this case that the first Respondent bought over the debt owed by the Appellants from the defunct Oceanic Bank Plc never arose at the lower Court. Counsel stated that the parties never addressed the issue and the lower Court did not pronounce on it and that the issue raised and argued by the Appellants before the lower Court was their own mistaken belief that the first Respondent bought their debt from the defunct Oceanic Bank Plc. Counsel stated that it was wrong for the Appellants to raise the issue of mutual belief, assumption or conclusion by the parties for the first time on appeal and to formulate an issue for determination from it without having first obtained the leave of Court to do so. Counsel stated that second ground of appeal and the issue formulated from it and the arguments canvassed thereon were incompetent and should be
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discountenanced.
In his response on the third ground of the preliminary objection, Counsel to the Appellants stated that the Practice Directions of the Court of Appeal 2014 was not applicable to this appeal and that the Appellants obtained from this Court an order of extension of time to appeal against the interlocutory Rulings of the lower Court on the 14th of January, 2019. Counsel stated that it was incorrect that first ground of appeal was unrelated to the findings of the lower Court in the two Rulings because the issue in the two Rulings was whether the lower Court could assume jurisdiction to hear the matter without service of the originating processes and this is the issue raised in the first ground of appeal.
On the fourth ground of the preliminary objection, Counsel to the Appellants stated that it was incorrect that the issue of the parties being under the mistaken belief that the Respondents bought the debt of the Appellants from Oceanic Bank Plc was not raised before the lower Court. Counsel referred to the contents of their counter affidavit to the motion for summary judgment and of their written address thereon and stated that the issue
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was properly raised and that Counsel to the first Respondent is only trying to befuddle the Court.
The gravamen of the complaints of the first Respondent in the third and fourth grounds of the preliminary objection is that the two grounds of appeal were in respect of issues that were not raised or canvassed before the lower Court on the substantive claims of the Respondents and were not ruled upon by the lower Court in the judgment appealed against. This Court has read the counter affidavit of the Appellants to the Respondents’ motion for summary judgment before the lower Court and it is clear therefrom that the Appellants raised the issues of non service of the originating processes and of the mistaken belief that the first Respondent purchased their debt from Oceanic Bank Plc. Also, a read through the judgment appealed against shows that Counsel to the parties canvassed arguments on the two issues and they were considered and pronounced upon by the lower Court.
Thus, it is incorrect that the first ground of appeal which complained against the finding of the lower Court that the Appellants were served with the originating processes was
31
directed at interlocutory Rulings of the lower Court and not at the judgment appealed against. Neither is it correct that the second ground of appeal complaining against the finding of the lower Court that the first Respondent purchased the debt of the Appellants from Oceanic Bank Plc raised a fresh issue not canvassed before or pronounced upon by the lower Court. In fact, the two findings complained about in the two grounds of appeal constitute the core parts of the ratio decidendi of the judgment appealed against. It is elementary that a ground of appeal directed against the ratio decidendi of the judgment appealed against is a competent ground of appeal – Animashaun Vs Onyekwuluje (2004) 2 NWLR (Pt 856) 183, All Progressive Congress Vs Peoples Democratic Party (2019) LPELR 48427(CA).
Counsel to the first Respondent also contended that the first ground of appeal was incoherent, vague and did not disclose a reasonable cause of action. In Nuhu Vs Ogele (2003) 18 NWLR (Pt 852) 251, the Supreme Court held that the term vague connotes something woolly, equivocal, a state of affairs that does not lend itself easily to comprehension, something blurry and
32
nebulous, uncertain or shadowy. Thus, the vagueness of a ground of appeal arises where it is couched in a manner which does not provide any explicit standard for its being understood, or when what is stated is so uncertain that it is not susceptible to being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularized, or the particulars are clearly irrelevant – Central Bank of Nigeria Vs Okojie (2002) 8 NWLR 41, Lagga Vs Sarhuna (2008) 16 NWLR (Pt 1114) 427. Except to the unlettered, a read through the first ground of appeal and its particulars reveals that it explicitly identified the complaint of the Appellants, the part of the judgment of the lower Court it is directed at and the grounds for the complaint. There is nothing vague or incoherent about the first ground of appeal.
The third and fourth grounds of the preliminary objection are misguided and they are refused.
Ground Five of the Preliminary Objection
In arguing this ground of the preliminary objection, Counsel to the first Respondent stated that the relief sought in the appeal on the notice of appeal was
33
incompetent as it related to a non-existent Ruling delivered on the 11th of May, 2018 and not the judgment of Court delivered on the 16th of May, 2018. Counsel to the Appellants responded that the contention of the first Respondent that the relief sought in the appeal was incompetent is totally misconceived and that the lower Court titled what it delivered on the Respondents’ motion for summary judgment as Ruling, and not as judgment, and this was what they sought the relief in the appeal against.
Counsel to the Appellants obviously did not understand the complaint of the first Respondent under this ground of preliminary objection and his response thereto was misdirected. The notice of appeal shows that the judgment appealed against was delivered by the lower Court on the 16th of May, 2018 while the relief sought was for the setting aside of the judgment delivered on the 11th of May, 2018. This is the focal point of the complaint of the first Respondent. It is rudimentary law that the misstating of the date of the judgment of a lower Court on a notice of appeal does not in any way impugn or affect the competence of the appeal. This is because the
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Courts recognize that blunders must, in the course of preparing a case, take place from time to time as infallibility is not a virtue of man and such blunders that might have been so committed should never be exploited to the point of getting the person committing the blunder to incur the penalty of not having the dispute between him and his adversary determined on the merits –Jeric Nigeria Ltd Vs Union Bank of Nigeria Plc (2000) 15 NWLR (Pt 691) 447, Lagos State Property & Development Corporation Vs Adeyemi-Bero (2002) 1 NWLR (Pt 748) 268, Colito (Nig) Ltd Vs Daibu (2009) LPELR 8216(CA). The error of the Appellants in misstating the date of the judgment of the lower Court in the relief sought on the notice of appeal is a mere irregularity and it does not affect the competence of the appeal. The fifth ground of the preliminary objection is thus baseless.
This Court finds no merit in the notice of preliminary objection of the first Respondent. The preliminary objection fails and it is hereby dismissed. This takes us to the substantive suit.
The Appellants notice of appeal contained two grounds of appeal which read thus:
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Ground One
The learned trial Judge was in error when he ruled that the originating processes were served on the Appellants.
Particulars of Error
i. The Appellants were never served with the originating processes in this suit, contrary to Section 49(3) of the Act and Order 8 Rule 8 of the AMCON Rules.
ii. The Appellants became aware of the proceedings of trial Court only when staff of the Court came to seal the Appellants business premises at Wuse II and Utako on 19th of May, 2015.
iii. The learned trial Judge ruled against the Appellants’ objection of its jurisdiction.
iv. There is no singular proof of service of the originating processes of this suit in the trial Court file.
Ground Two
The learned trial Judge erred when he concluded that the first Respondent bought over the debt owed the default Oceanic Bank Plc.
Particulars of Error
i. The Respondents relied on Exhibit JD6 and JD7 as the Loan Purchase and Limited Service agreement between the Bank and itself.
ii. There are hundreds of sentences in the said agreement but not a single sentence therein says that Oceanic Bank Plc sold the debt owed it by the
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Appellants to the Respondents.
iii. The learned trial Court failed and neglected to take into account the peculiar circumstances of this case in the interpretation of Exhibit JD6 despite the error being pointed out to it
iv. The Appellants and the Respondents were both in the wrong assumption or conclusion that the Respondents bought the debt owed by the Appellants from Oceanic Bank Plc.
Counsel to the Appellants distilled two issues for determination in the appeal and these were:
i. Whether the lower Court had jurisdiction to entertain the suit at all since the Respondents never served the originating processes on the Appellants in accordance with Section 49 of the Asset Management Corporation of Nigeria Act.
ii. Whether the Appellants and Respondents were not mistaken in their belief that the Respondent acquired the debt owed by the Appellant to the defunct Oceanic Bank Plc giving it the locus to bring this suit against them.
On his part, Counsel to the first Respondent also distilled two issues for determination in the appeal and these were:
i. Whether the trial Court had powers to make ex-parte orders pursuant to
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Section 49 of the AMCON Act 2010.
ii. Whether considering the documentary evidence, the trial Court was right to hold that the first Respondent bought over the Appellants’ debt from the defunct Oceanic Bank Plc.
It is elementary that issues for determination must be connected, related and arise from grounds of appeal and which in turn must be directed at the ratio decidendi of the judgment appealed against – Ukwuyok Vs Ogbulu (2019) LPELR 48741(SC), Ugwu Vs State (2020) LPELR 49375(SC). And a respondent who has not filed a Respondent’s Notice or a cross appeal cannot formulate issues for determination outside the grounds of appeal of an appellant – Chami Vs United Bank for Africa Plc (2010) 6 NWLR (Pt 1191) 474, All Progressive Grand Alliance Vs Umeh (2011) 8 NWLR 427. Looking at the issues for determination formulated by Counsel to the first Respondent, it is obvious that his first issue for determination has no correlation with either of the two grounds of appeal of the Appellants. Nowhere in the two grounds of appeal did the Appellants question the power of the lower Court to grant an ex-parte order pursuant to
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Section 49 of the AMCON Act 2010. The question of grant of an ex-parte order pursuant to Section 49 of the AMCON Act 2010 did not arise from and was not pronounced upon in the judgment appealed against. The first issue for determination formulated by the first Respondent is incompetent.
The Court hereby adopts the two issues for determination formulated by Counsel to the Appellants and this appeal will be resolved on the two issues for determination. The issues for determination will be considered seriatim.
Issue One
Whether the lower Court had jurisdiction to entertain the suit at all since the Respondents never served the originating processes on the Appellants in accordance with Section 49 of the Asset Management Corporation of Nigeria Act?
The Court notes that in canvassing arguments on this issue for determination, Counsel to the parties proffered arguments touching on the propriety of the findings made by the lower Court in the interlocutory Rulings delivered on the 2nd of July, 2015 and 19th of October, 2015. This appeal is predicated on the notice of appeal dated the 16th of May, 2018. The notice of appeal is the spinal cord of this appeal; it is the
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originating process which sets the ball rolling for the proper, valid and lawful commencement of an appeal. It contains what the subject matter of the appeal is – Aderibigbe Vs Abidoye (2009) 10 NWLR (Pt 1150) 592, Akpan Vs Bob (2010) 17 NWLR (Pt 1223) 421, Dingyadi Vs Independent National Electoral Commission (No 1) (2010) 18 NWLR (Pt 1224) 1. It is the foundation upon which the jurisdiction of this Court to entertain this appeal is predicated – Uwazurike Vs Attorney General Federation (2007) 8 NWLR (Pt 1035) 1, Odunze Vs Nwosu (2007) 13 NWLR (Pt 1050) 1 and First Bank of Nigeria Plc Vs Maiwada (2013) 5 NWLR (Pt 1348) 444. And the notice of appeal, just like pleadings, is binding on the parties – Federal Airport Authority of Nigeria Vs Greenstone Ltd (2009) 10 NWLR (Pt 1150) 624.
The subject matter stated on the notice of appeal is the judgment of the lower Court contained in the Ruling delivered on the 16th of May, 2018. The brief of this Court in this appeal, therefore, is to find out whether on proper consideration of the facts placed before it, and the applicable law, the lower Court arrived at a correct decision in its said Ruling
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of the 16th of May, 2018. It is not within the brief of this Court in this appeal to review any other ruling or judgment of the lower Court outside the Ruling delivered on the 16th of May, 2018. The law is that the Court in exercising an appellate jurisdiction can only determine issues that arose out of complaints against the judgment/Ruling of the lower Court in respect of which notice and grounds of appeal were filed and submitted for adjudication. It cannot entertain issues that did not arise from a judgment/Ruling not appealed against. No Court has inherent appellate jurisdiction – Isiaka Vs Ogundimu (2006) 13 NWLR (Pt 997) 401, Anah Vs Anah (2008) 9 NWLR (Pt 1091) 75, Adefeyisan Vs Odegbesan (2020) LPELR 49494(CA).
The interlocutory Rulings delivered by the lower Court on the 2nd of July, 2015 and 19th of October, 2015 are not the subject matter of this appeal and there is no notice of appeal filed against them. This Court will thus disregard the arguments proffered by the Counsel in their respective briefs of arguments on the findings contained in them. The Court will only consider the arguments of Counsel against the findings of the lower
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Court in the Ruling of 16th of May, 2018.
Additionally, this Court notes that Counsel to the parties made reference to the provisions of Section 49(3) of the Asset Management Corporation of Nigeria Act in their arguments under the first issue for determination. The provision in the Section has nothing to do with service of originating processes, which is the fulcrum of the complaint of the Appellants under this issue for determination, but with the time limit given to the Asset Management Corporation of Nigeria to commence an action after obtaining interim orders. The Appellants questioned the jurisdiction of the lower Court to hear and determine the substantive matter under this issue for determination. Non-compliance with the provision of Section 49 (3) of the Asset Management Corporation of Nigeria Act has nothing to do with the jurisdiction of the lower Court to hear a substantive matter and it rather deals with the continued potency of the interim orders obtained under Section 49 (1) and (2) – Josco Global Services Ltd Vs Asset Management Corporation of Nigeria (2018) LPELR 45637(CA). Further, the applicability of Section 49 (3) was not raised,
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considered or pronounced upon by the lower Court in the judgment appealed against. The reference to the provision under this issue for determination is thus only a distraction and all arguments in respect thereto will also be discountenanced. The Court will, under the first issue for determination, consider only the arguments of Counsel to the parties against the findings of the lower Court on the non-service of the originating processes in the judgment appealed against; judgment contained in the Ruling of 16th of May, 2018.
In arguing the first issue for determination, Counsel to the Appellants stated that a Court can only be competent to adjudicate if and only if all the conditions precedent to the exercise of its jurisdiction have been fulfilled and that one of such conditions, in the instant case, is that the Appellants must be served with the originating processes and that since they were not so served and the lower Court lacked jurisdiction to entertain the matter and to make any orders therein and he referred to the case of Njokanma Vs Uyana (2006) 13 NWLR (Pt 991) 433. Counsel stated that the record of appeal does not contain any proof of service
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and that the finding of the lower Court that by their conduct they waived their right to service of the Court processes was incorrect as they sought for and obtained certified true copies of the originating processes from the Registry of the lower Court in order to challenge the competence of the suit and that parties cannot confer jurisdiction on a Court and he referred to the case of Shitta Bey Vs A.G., Federation (1998) 10 NWLR (Pt 570) 392.
Counsel stated that the Appellants did not participate in the proceedings before the lower Court apart from pointing out to the Court that it had no jurisdiction and to discharge the ex-parte orders and that non-service of originating processes renders a proceeding a nullity no matter how well conducted. Counsel stated that the issue of jurisdiction can be raised at any stage of proceeding up to the final determination by the Supreme Court and that a party who participates at the trial of a case can still raise the issue of jurisdiction for the first time in the appellate Court and that the finding of the lower Court on waiver cannot be correct and he referred to the case of Ogigie Vs Obiyan (1997) 10 NWLR (Pt 524)
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- Counsel stated that the Appellants applied for and obtained copies of the originating processes from the lower Court when their business premises were sealed by the Respondents for the purpose of discharging the orders and he referred to the provisions of Order 8 Rule 8 of the AMCON Rules on service of processes and stated that applying for and obtaining Court processes from the Registry of Court is not one of the recognized modes of service under the Rules and that the Appellants were not served in accordance with the AMCON Rules and he referred to and quoted extensively from the case of Cross River Basin & Rural Development Authority Vs Baba (2001) 6 NWLR (Pt 708) 194. Counsel urged the Court resolve the first issue for determination in favour of the Appellants.In his response arguments, Counsel to the first Respondent stated that the first Respondent deposed to an affidavit of service of the originating processes on the Appellants on the 10th of June 2015 and that this was before the commencement of trial in the lower Court on the 8th of December, 2015 and that the Appellants did not file a counter affidavit to countermand the affidavit of
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service and that they cannot thus be heard to complain of non-service and he referred to the case of Abdulmuminu Vs GT Bank Plc (2017) LPELR 43140(CA). Counsel stated further that the Appellants, by their conduct, indeed waived their right to complain of non-service of originating processes because they participated in the proceedings in the lower Court through their Counsel from the date of commencement of trial in December 2015 up till judgment. Counsel stated that the Appellants’ Counsel requested for adjournments from the lower Court to cross examine the plaintiff witness and to report settlement and that the Appellants engaged in negotiations to settle the matter out of Court for over two years and secured the release of the mortgaged properties to sell and settle their debt and that as such it is too late in the day for them to complain about non-service of originating processes and he referred to the cases of FBN Vs Ojemudia (2017) LPELR 43322 (CA), Forby Engr. Co Ltd Vs AMCON (2018) LPELR 43681 (CA). Counsel stated that the finding of the lower Court that the Appellants had waived their right to complain on the issue of non-service of originating
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process was correct in the circumstances and that this finding was not appealed against and this meant that the Appellants conceded same and he referred to the case of Anyanwu Vs Ogunewe (2014) LPELR 22184(SC). Counsel urged the Court to resolve the first issue for determination in favour of the Respondents.
Now, in summarizing the respective cases made out by the parties on their processes on the Respondents’ motion for summary judgment, the lower Court stated in the judgment thus:
“… the Defendants filed a counter affidavit and a written address both dated 11th October 2016 … The second ground brought by the Defendants is that this Court lacks jurisdiction to entertain this suit because the Claimants never served the Defendants the originating processes of this suit and therefore the Court does not possess jurisdiction over a person who has not been served the writ of summons.
The Claimants, in return, replied to the Defendants’ counter affidavit dated 12th October, 2016 … The Claimants also argued that the Defendants were served with forms of complaints, statement of claim and other processes of the
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Court and also with regards to Paragraph 8.12(3) & (4) of the AMCON Practice Direction 2013, the Court may proceed without proof of service if the party to be served admits services or has a copy of the document. In addition, the Claimants contend that the 2nd Defendant was served with 5 copies of the originating processes at a meeting to settle out of Court which is deposed to by Joe Dappa Esq. in his affidavit of service dated 10th June 2015 … The Defendant filed a Further and Better Counter Affidavit to the Claimants’ Further and Better Affidavit on 21st October, 2016 stating … that the Claimants never applied for substituted service and that the attempted service during peaceful settlement is not included as one of the ways to serve a Corporation according to Order 8.8 AMCON Rules.”
The Appellants did not challenge this summation of the case by the lower Court. What is obvious from this excerpt is that, apart from the fact that Counsel to the Appellants had, on the instructions of the Appellants, applied for and obtained copies of the originating processes from the Registry of the lower Court as stated in the earlier
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part of this judgment, the Respondents effected service of the originating processes on the Appellants by serving copies of the processes on the second Appellant at a settlement meeting and in respect of which the second Respondent deposed to an affidavit of service on the 10th of June, 2015. The Appellants admitted this service but contended that it was not one of ways of serving process stipulated in the AMCON Rules.
In resolving the issue of non-service of originating process, the lower Court stated in the judgment thus:
“Secondly, on the issue of the absence of jurisdiction of this Court since the Defendants were not served as stated, the issue of service of Court processes is a fundamental issue …
The Claimant has argued that according to Paragraph 8.12 (3) & (4) of the AMCON Practice Direction 2013, the Court would proceed without proof of service if the party to be served admits service or has a copy of the documents, or attends Court in apparent response to the document to be served, even if service was not done in accordance with the directions and rules. It is pertinent to note the Practice Directions do not override
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statute …
Be that as it may, there is an inkling that the Defendants intended to waive their right to service of the Court processes. A careful look at paragraph 5 of the Defendants’ Counter Affidavit to the Claimants’ affidavit dated 11/10/2016 states that the Defendants only became aware of the proceedings only when the staff of the Court came to seal the business premises at Wuse and Utako on 19th of May, 2015 thus the Defendants’ Counsel came to ‘this Court and obtained copies of the originating processes to enable the Respondents file their two motions to strike out the suit’. The records show that the Defendants had always been represented even up until after the out of Court settlement. This to me indicates a waiver of the requirement of the service of Court processes …”
The first Appellant in the instant case is an incorporated body and the present state of the law is that the Rules of Court are the only statutory provisions regulating the service of Court processes on a corporation or registered company in Nigeria and the provisions must be strictly obeyed in effecting such service –
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Union Beverages Ltd Vs Adamite Co Ltd (1990) 7 NWLR (Pt 162) 348 and Overseas Union Insurance Ltd & Ors Vs Marine and General Assurance Co (2001) 9 NWLR (Pt 717) 92.
The first Respondent, the first claimant in the lower Court, was the Asset Management Corporation of Nigeria (AMCON). This is an AMCON claim and the relevant Rules of Court are thus the AMCON Practice Directions of 2013. Paragraph 1:3 (1) of the Practice Directions makes it the applicable Rules of Court to all AMCON claims. Paragraph 8:8 of the Practice Directions provides that service of claim forms or other Court documents requiring personal service on a registered company, corporation or body corporate may be done in any of the following ways: (a) according to the relevant statute governing service on that kind of organization; (b) by delivery to a director, secretary, trustee or other senior, principal or responsible officer of the organization; (c) by leaving it with a responsible person at the registered, principal or advertised office or place of business of the organization in the jurisdiction, or (d) by sending it to that office or place by courier. The word used in the
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provisions is “or”, not “and”.
The word “or” when used in a statute is a disjunctive participle used to express an alternative or to give a choice of one among two or more things –Arubo Vs Aiyeleru (1993) 3 NWLR (Pt 208) 126 at 141-142 and Abubakar Vs Yar’Adua (2008) 12 SC (Pt II) 1. Thus, the four stated modes of service are disjunctive and any one of the modes is sufficient – Josco Global Services Ltd Vs Asset Management Corporation of Nigeria (2018) LPELR 45637(CA). It is not in contest between the parties in this appeal that the second Appellant is a director and the alter ego of the first Appellant. This fact was averred by the Respondents in their statement of facts and it was not challenged by the Appellants. The service of the originating processes carried out on the second Appellant at a settlement meeting, and which fact was deposed by the second Respondent in an affidavit of service dated 10th of June, 2015, comes within the second mode of service and it was thus proper.
Further and very importantly, Paragraph 8:12 (3) and (4) of the Practice Directions provides that a Court may
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proceed with a matter without proof of service if the party to be served or his Counsel, admits service or has a copy of the document, even if service was not done according the provisions of the Practice Directions or where the party to be served or his Counsel attends Court in apparent response to the document to be served and has a copy of that document. In other words, once the defendant to an AMCON claim or his Counsel has obtained a copy of the originating processes or where the defendant or his Counsel attends Court in apparent response to the process, then the question of service ceases to be an issue, notwithstanding that the service of the processes was not effected in accordance with the provisions of the Practice Directions, and the defendant will be deemed and presumed to have been served with the processes without more, even in absence of affidavit of service. The only commonsensical exception to this position will, of course, be where the defendant or his Counsel attends Court in protest only for the purpose of contesting service – Josco Global Services Ltd Vs Asset Management Corporation of Nigeria (2018) LPELR 45637(CA).
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This position is in consonance with the position taken by case law authorities on the point. In Akande Vs General Electric Company Ltd (1979) LPELR 319(SC), Aniagolu, JSC, explained the position thus:
“The first defendants entered conditional appearance and upon their failure to get the service of the writ set aside, filed their statement of defence in which they made some admissions relating to an alleged agreement said to have been evidenced by a memorandum in writing. They must be deemed to have waived service – a course which, in law, they are entitled to. In Pike Vs Nairn & Co Ltd (1960) Ch 553 at 560 … Cross, J, stated that ‘The service of the process of the Court is made necessary in the interests of the defendant so that orders may not be made behind his back. A defendant, therefore, has always been able to waive the necessity of service and to enter appearance to the writ as soon as he hears that it has been issued against him, although it has not been served on him …’”
In Njoemana Vs Ugboma (2014) LPELR 22494(CA), this Court made the point thus:
“… There cannot be a better
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proof than the appearance in Court of the person on whom the process was served. It is common knowledge that parties informed the Court of the service of a writ, subpoena, hearing notice, etc on their opponents. In such a case, without the appearance of the person allegedly served or an affidavit of service, the Court should be circumspect in such a situation. It is straining the rule of proof of service to say that a defendant who filed a statement of defence to a statement of claim was not served with the writ of summons because there was no bailiff’s endorsement on the writ.”
In United Bank for Africa Vs Effiong (2011) LPELR 8934(CA), it was held that the best proof of service of Court process on an adverse party is the unconditional appearance, presence or representation of the person who has been served with the said Court process. Similarly, in Dongari Vs Sa’ahun (2013) LPELR 22084(CA), it was held that personal appearance does appear to be the strongest means of proof of service and that where there is no affidavit of service but the person served with the Court process appears in Court not in protest, then there will be no need
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for the Court to insist on affidavit evidence in proof of service. See also the cases of Okesuji Vs Lawal (1991) NWLR (Pt 170) 661, Societe Generale Bank (Nig) Ltd Vs Adewunmi (2003) 10 NWLR (Pt 829) 526, International Committee of Red Cross Vs Olabode (2009) LPELR 8764(CA), Nnaji Vs Alozie (2014) LPELR 24014(CA), The MV Courageous Ace Vs Nigerdock Nigeria Plc (2016) LPELR 40223(CA), Zakirai Vs Muhammad (2017) LPELR 42349(SC), Shell Petroleum Development Company (Nig) Ltd Vs Nwagbara (2018) LPELR 43732(CA).
In the present case, upon being served with the ex parte orders of interim possession of the assets used to secure the loan obtained from Oceanic Bank Plc, the Appellants caused their Counsel to apply for and obtain copies of the originating processes from the Registry of the lower Court. Thereafter, the Appellants filed a motion on notice dated the 22nd of May, 2015 praying for an order setting aside the two ex parte orders for failure of the Respondents to serve the General Claim Form, Statement of Claim and all other originating processes on the Appellants and to set aside the proceedings. The lower Court took arguments on the motion of the
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Appellants and dismissed same in a Ruling delivered on the 2nd of July, 2015. The Appellants did not appeal against the Ruling then and have not filed a notice of appeal against same up till date. These show that the Appellants had copies of the originating processes and did not take their protest against the proceedings on ground of lack of service any further.
The records show that trial commenced in the lower Court and the Respondents led their witness in evidence and tendered several documents on the 8th of December, 2015 and 18th of January, 2016 and the Appellants were represented in Court by Counsel, Isaac Okpanachi with Bola Olorunsola and Valentine Nwakanma, at the trial. At the conclusion of the evidence in chief of the witness of the Respondents, the lower Court apparently at the request of Counsel to the parties adjourned the matter for cross examination or for report of settlement. On the 22nd of February, 2016, the Appellants were again represented in Court by Counsel, Isaac Okpanachi with Fidelis Akporcha and Bola Olorunsola, and they participated in the proceedings and sought for a further adjournment, along with Counsel to the
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Respondents, for final report of settlement. On the 19th of April, 2016, Counsel, Isaac Okpanachi with Paul Omale and Solomon Chukwuocha, appeared for the Appellants and they participated in proceedings and informed the lower Court that they had gone far in working on the conditions of settlement and they again sought for an adjournment for further report of settlement. In none of these proceedings did the Appellants or their Counsel say that they were appearing in protest and/or raise the issue of non-service of the originating processes.
The records show that the Appellants did enter into negotiation discussions with the Respondents which culminated in a letter dated May 3, 2016 from the Respondents to the Appellants and the response of the Appellants thereto dated the 9th of May, 2016. The Appellants made no mention of the issue of non-service of the originating processes in their letter of 9th of May, 2016. The records show that it was when the Appellants failed to meet the terms of the settlement agreed in the letters of May 3, 2016 and 9th of May, 2016, and consequent on which the Respondents filed a motion for summary judgment, that the
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Appellants remembered the issue of non-service of the originating processes in their counter affidavit deposed on the 11th of October, 2016. And even in the said counter affidavit, the Appellants did not raise the issue unequivocally as they stated that notwithstanding the non-service of the processes they were willing to abide the terms of settlement contained in the letter dated May 3, 2016; their Counsel contended that the lower Court should enter judgment in accordance with those terms of settlement rather than as per the claims of the Respondents on the pleadings.
In the light of these facts, it is clear that the question of service or non-service of the originating processes ceased to be an issue and the findings of the lower Court that the Appellants waived their right to object to the non-service of the originating processes on them cannot be faulted. The Appellants can no longer be heard to complain of non-service or improper service of the originating processes – Forby Engineering Company Ltd Vs Asset Management Corporation of Nigeria (2018) LPELR 43861 (CA), Josco Global Resources Ltd Vs Asset Management Corporation of Nigeria (2018)
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LPELR 45637(CA).
Counsel to the Appellants contended that the issue of service of processes touched on the jurisdiction of the lower Court and that since the parties cannot confer jurisdiction on the Court and the issue of jurisdiction can be raised at any time, the Appellants cannot be said to have waived their right. Counsel obviously failed to draw a distinction between matters of procedural jurisdiction and those of substantive jurisdiction. It is matters of substantive jurisdiction that cannot be waived by parties, matters of procedural jurisdiction can be waived. The issue of service or non-service of a Court process is a matter of procedural jurisdiction that can be waived – Odu’a Investment Co. Ltd Vs Talabi (1997) 10 NWLR (Pt 523 1, Ndayako Vs Dantoro (2004) 13 NWLR (Pt 889) 187, Mobil Producing (Nig) Unlimited Vs Lagos State Environmental Protection Agency (2002) 18 NWLR (Pt 798) 1, F & F Farms (Nig) Ltd Vs Nigeria National Petroleum Corporation (2009) 12 NWLR (Pt 1155) 387, Central Bank of Nigeria Vs Interstella Communications Ltd (2017) LPELR 43940(SC). The first issue for determination is resolved in favour of the Respondents.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Issue Two
Whether the Appellants and Respondents were not mistaken in their belief that the Respondent acquired the debt owed by the Appellant to the defunct Oceanic Bank Plc giving the locus to bring this suit against them?
In arguing the issue for determination, Counsel to the Appellants stated that the document relied upon by the Respondents as the foundation of their claims was the Loan Purchase and Limited Service Agreement dated in December 2010 and by which they said that they purchased the debt of the Appellants from Oceanic Bank Plc. Counsel stated that looking through the document, the fact of the alleged purchase of debt was nowhere contained and that it was based on the belief that the purchase indeed took place that the parties exchanged correspondences on the Appellants indebtedness to Oceanic Bank Plc and the deed of legal mortgage issued as security for the indebtedness was in favour of Oceanic Bank Plc. Counsel stated that the Appellants admitted been indebted to Oceanic Bank Plc and are desirous of repaying same but that there is no nexus between their debt to Oceanic Bank Plc and the Respondents and the Respondents have no right
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to it and they lacked the requisite locus standi to commence this action and that consequently the lower Court had no jurisdiction to entertain the action and he referred to the cases of Atta Vs Idi (2015) 2 NWLR (Pt 1443) 385 and Daniel Vs INEC (2015) 9 NWLR (Pt 1463) 113.
Counsel stated that parties are bound by their agreement and that the duty of a Court is to interpret the agreement between parties and to enforce its terms and not to rewrite same even if the agreement was inelegantly or ineptly couched and he referred to the cases of Arta Industries Ltd Vs Nigeria Bank for Commerce and Industry (1997) 1 NWLR (Pt 483) 574, Isiyaku Vs Zwingina (2001) FWLR (Pt 72) 2096 and A.G., Rivers State Vs A.G., Akwa Ibom State (2011) 45 NSCQR 1041. Counsel stated that it was correct that the parties entered into correspondences and in the course of which settlement terms were agreed and the Appellants paid N84 Million towards liquidating the indebtedness but that these were done on the basis of a fundamental mistaken assumption that the Respondents purchased the Appellants’ indebtedness to Oceanic Bank Plc and that agreements reached on such a mistake are
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liable to be nullified and avoided and he referred to the cases of Bell Vs Lever Brothers Ltd (1932) AC 161 and Galloway Vs Galloway (1914) 30 TLR 531. Counsel stated that the lower Court was in error when it upheld the locus standi of the Respondents on the basis of the settlement terms reached by the parties and he urged the Court to resolve the second issue for determination in favour of the Appellants.
In his response, Counsel to the first Respondent traversed through the contents of the Loan Purchase and Limited Service Agreement executed between the first Respondent and Oceanic Bank Plc and pointed to specific portions thereof which he said showed that the debt owed by the Appellants to Oceanic Bank Plc was part of the loans purchased by the first Respondent and stated that the lower Court was correct when it found that the Respondents proved the fact of the purchase of the Appellants’ indebtedness by the first Respondent. Counsel stated further that in the several correspondences exchanged between the parties and in some of the processes filed in the lower Court, the Appellants constantly admitted that the first Respondent did purchase their
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indebtedness to Oceanic Bank Plc and that it is trite law that what is admitted needs no further proof and he referred to the cases of Eco International Bank Plc Vs Nigerian Union of Local Government Employees, Jalingo Local Government Council (2015) 10 NWLR (Pt 1466) 49 and Rosehill Ltd Vs GTB (2016) LPELR 41665(CA). Counsel stated that the Respondents thus proved their locus standi to sue and he urged the Court to resolve the second issue for determination in favour of the Respondents.
The sale and purchase of debts, referred to as “eligible bank assets”, by the Asset Management Corporation of Nigeria, the first Respondent, from Nigerian Banks, such as Oceanic Bank Plc, is provided for in Sections 24 to 52 of the Asset Management Corporation of Nigeria Act of 2010 (as amended). The debt purchase agreement executed between the first Respondent and Oceanic Bank Plc for the purchase of some of the debts of its customers, and captioned, “Loan Purchase and Limited Service Agreement”, was part of the documents front loaded by the Respondents in the originating processes and it was also attached as Exhibit JD6 to the motion for summary
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judgment. The document consists of several pages. It is a settled principle of interpretation of documents that where the language used by parties in couching the terms or provisions of a document are clear and unambiguous, the Court must give the operative words in the document their simple, ordinary and actual grammatical meaning – Union Bank of Nigeria Plc Vs Ozigi (1994) 3 NWLR (Pt 333) 385, Isulight (Nig) Ltd Vs Jackson (2005) 11 NWLR (Pt 937) 631, Egwunewu Vs Ejeagwu (2007) 6 NWLR (Pt 1031) 431.
It is also settled that in interpreting a document, the document must be read as a whole, and not parts in isolation, and that the different parts of the document must be interpreted in the light of the whole document and an effort must be made to achieve harmony amongst its different parts – Unilife Development Co Ltd Vs Adeshigbin (2001) 2 SCNJ 116, Mbani Vs Bosi (2006) 11 NWLR (Pt 991) 400, Adetoun Oladeji Nig. Ltd Vs Nigerian Breweries Plc (2007) 1 SCNJ 375, Agbareh Vs Mimra (2008) 2 NWLR (Pt 1071) 378, Nigerian Army Vs Aminun-Kano (2010) 5 NWLR (Pt 1188) 429. Applying these principles to the contents of the Loan Purchase and Limited Service
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Agreement, Exhibit JD6, it is clear that it was an agreement for the purchase of debts of several of the customers of Oceanic Bank Plc for the total sum of N76,488,401,545.72 (Seventy Six Billion, Four Hundred and Eighty Eight Million, Four Hundred and One Thousand, Five Hundred and Forty Five Naira, Seventy Two Kobo) and the debts so purchased and the price of each of them were listed in the Loan Schedule attached to the agreement. A look at the Loan Schedule shows that the indebtedness of the Appellants was part of those purchased under the agreement and it was listed as No 21 and the debt which stood at N772,967,613. 82, at the time, was purchased by the first Respondent for N645,800,000.00.
The contention of the Appellants under this issue for determination is thus totally misconceived and the lower Court was correct when it found that the Respondents established their right to demand for the payment of the indebtedness in question from the Appellants. The second issue for determination is resolved in favor of the Respondents.
This case is another example of the perverse behavior and the recalcitrant attitude of chronic debtors in hiding behind
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legal techniques to avoid meeting their obligations to repay debts. The Appellants admitted taking a loan of N500 Million from Oceanic Bank Plc in January of 2008 and which they undertook to repay with interest within a period of twenty seven months. The Appellants did not contest that they failed to make any repayment on the loan within the agreed period despite several undertakings to do so. When the indebtedness was purchased by the first Respondent in December 2010 following the distress suffered by Oceanic Bank Plc by reason of the failure of debtors such as the Appellants to repay loans, the Appellants exchanged several correspondences with the Respondents and gave several undertakings to repay the loan and they reneged on every single one of the undertakings. It appears that the only time that the Appellants took the issue of the repayment of their indebtedness seriously was when the Respondents executed the interim orders of possession against the properties mortgaged as security for the loan in May 2015, over seven years after the loan. And even then, the Appellants stated that they repaid N84 Million out a loan which plus interest had risen to above
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N1.2 Billion as at the time of commencement of this action.
Rather than hide their head in shame and try to resolve their obligations to the Respondents in private, the Appellants came to Court to raise mundane and technical issues to stave off the interim orders of possession issued over the mortgaged properties and to preserve their right to continue to use the properties without repaying their debt. They have used the processes of Court to successfully do so for five years now. The loan involved was obtained in 2008, over twelve years ago and in the meantime the Bank became defunct and its shareholders lost their shareholdings! In Tilley Gyado & Co (Nig) Ltd Vs Access Bank Plc & 2 Ors (2019) 6 NWLR (Pt 1668) 399, this Court had cause to comment on such attitude on the part of recalcitrant debtors and it stated that it is not right and that there is no credibility, honor or respect in such actions. The Court noted that credibility, honor and respect lie in a man standing up and staying committed to his obligations and undertakings and finding ways of meeting them, even in difficult times. And that it is doubtful that any society that permits such
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impunity on the part of debtors will prosper. Something must be done to curtail this attitude.
In conclusion, this Court finds no merit in the appeal. The appeal fails and it is hereby dismissed. The decision contained in the Ruling of the Federal High Court, Abuja Judicial Division, and delivered in Suit No FHC/ABJ/CS/352/2015 by Honorable Justice B. O. Quadri on the 16th of May, 2018 is affirmed. The first Respondent is awarded the costs of this frivolous appeal in the sum of N250,000.00. These shall be the orders of the Court.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the leading judgment of my learned brother H. A. ABIRU, JCA just delivered and I agree with his reasoning and conclusion. I find no merit in the appeal and I dismiss it.
I abide by the Order as to costs.
AMINA AUDI WAMBAI, J.C.A.: My learned brother H.A.O. ABIRU JCA obliged me a copy of his judgment. I have gone through same and agree with the reasoning and conclusion that there is no merit in the appeal. I adopt same as mine and have nothing more to add. For the same reasons. I also dismiss the appeal and abide the order as to cost.
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Appearances:
Samuel Ameh with him, Angela Peter For Appellant(s)
C. Dappah – for the first Respondent
No appearance for the second Respondent For Respondent(s)