FIOGRET LTD v. AMCON & ORS (2022)

FIOGRET LTD v. AMCON & ORS

(2022)LCN/16676(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, January 28, 2022

CA/A/108/2019

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

FIOGRET LIMITED APPELANT(S)

And

1. THE ASSET MANAGEMENT CORPORATION OF NIGERIA (AMCON) 2. THE HONOURABLE FEDERAL ATTORNEY GENERAL AND MINISTER OF JUSTICE 3. ADEKUNLE OGUNBA, SAN (PRACTICING UNDER THE NAME AND STYLE OF KUNLE OGUNBA & ASSOCIATES) RESPONDENT(S)

RATIO

THE POSITION OF LAW ON LEAVE TO FILE ADDITINAL GROUNDS OF APPEAL

Leave to file additional ground simpliciter presupposes that such additional ground arises from the judgment appealed from but had been omitted from the original notice of appeal. Leave to file and argue new/fresh points or grounds of appeal means those new issues/grounds do not directly arise from the decision of the lower Court appealed from. The two are quite different. See the cases of AJUWON & ORS v. ADEOTI (1990) LPELR-310(SC) and ADIO & ANOR V. STATE (1986) LPELR-183(SC) where the position was held by the Supreme Court that leave to argue additional grounds is not the same as leave to argue fresh issues not raised in the Court below. PER SENCHI, J.C.A.

WHETHER OR NOT A LEGAL PRACTITIONER HAS RIGHT OF AUDIENCE IN ALL COURTS OF LAW SETTING IN NIGERIA

Section 8(1) of the Legal Practitioners Act provides as follows:
8(1) Subject to the provisions of the next following subsection and of any enactment in force in any part of Nigeria prohibiting or restricting the right of any person to be represented by a legal practitioner in proceedings before the Supreme Court or the Shana Court of Appeal or any area or customary Court, a legal practitioner shall have the right of audience in all Courts of law sitting in Nigeria. Rules 17(5) & (6) of the Rules of Professional Conduct for Legal Practitioners provide as follows:
17.
(5) A lawyer shall not appear as counsel for a client in a legal proceeding in which the lawyer is himself a party.
(6) Where a lawyer is required to decline employment or to withdraw from employment under any of these Rules, no partner, associate or any lawyer affiliated with him or his firm may accept or continue such employment.
In view of the foregoing provisions, it is quite settled that a litigant who is a legal practitioner in a cause or matter ceases to be a legal practitioner in so far as such cause or matter is concerned and is therefore not competent to represent or conduct the case of any other party in the proceedings. In such a case, he appears in person as a litigant and not as a legal practitioner and may therefore only speak on his own behalf. See the cases of FAWEHINMI V. N.B.A. (NO.1) (1989) 2 NWLR PT. 105 P. 494, ATAKE V. AFEJUKU (1994) LPELR-585(SC) and AUDU & ANOR V. GIDEON & ANOR (2014) LPELR-24190(CA). PER SENCHI, J.C.A.

THE POSITION OF LAW ON CASE LAWS

DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court, Abuja delivered by I.L. Ojukwu, J. on 30/11/2018 in Suit No. FHC/ABJ/CS/933/2015.

The facts which led to this case on appeal as disclosed by the Record are that the Appellant was involved in various financial transactions with various banks. Interest over the said transactions was taken over by the 1st Respondent. Then at the Appellant’s request, the 2nd Respondent wrote to the 1st Respondent offering to guarantee the payment of the outstanding sum of N350 Million which the Appellant owed the 1st Respondent to be defrayed from a sum of money which the Federal Government of Nigeria owed the Appellant. The 1st Respondent however appointed the 3rd Respondent, Receiver, in respect of the debt over the Appellant company. The 3rd Respondent in his capacity as Receiver wrote to the Appellant demanding payment of the outstanding sum due to the 1st Respondent. Aggrieved by this, the Appellant filed an action at the lower Court vide originating summons seeking inter alia, to compel the 1st Respondent to accept the offer of guarantee by the 2nd Respondent so as to discharge the Appellant from the debt.

Apart from filing their joint counter affidavit to the originating summons, the 1st and 3rd Respondents filed a Notice of preliminary objection which was heard along with the originating summons by the lower Court.

In its judgment delivered on 30/11/2018 (found at page 501 of the Record of Appeal), the lower Court found that the Appellant’s originating summons was incompetent for failing to comply with conditions precedent to wit, service of pre-action notice, and lacking locus standi. In considering the merit of the originating summons, the lower Court also found that the 1st Respondent was not bound to accept the offer of guarantee made by the 2nd Respondent and couldn’t be compelled by anyone to do so. However, in view of its position that the action was incompetent, the lower Court struck out the case before it.

Dissatisfied with this Judgment of the lower Court, the Appellant filed two Notices of Appeal to this Court dated 30/11/2018 (at page 535 of the Record of Appeal) and 22/2/2019 (at page 1 of the Supplementary Record of Appeal). The Appellant subsequently sought and obtained leave to amend its notice of appeal by adding an additional ground of appeal. Thus, by an Amended Notice of Appeal dated 18/3/2020, the Appellant raised seven (7) Grounds of Appeal. The Appellant also filed an amended brief of argument dated 20/3/2020, in which it formulated and argued four Issues for Determination from the seven Grounds of Appeal to wit:
(1) Whether the learned trial Judge of the Federal High Court, Abuja Division, Coram I.L. Ojukwu, J., rightly assumed jurisdiction at law when he struck out the Originating Summons of the Appellant dated 18/11/2015, and on the processes filed by the 1st & 3rd Respondents, having regard to Section 8(1) of the Legal Practitioners Act, 1975 (as amended) and Rules 17(5) & (6) of the Rules of Professional Conduct for Legal Practitioners, 2007 (as amended); Order 55 Rules (1) (2) of the Federal High Court (Civil Procedure) Rules, 2009. (Ground 1 of the Ground of Appeal) – Amended Notice of Appeal dated and filed on the 18th day of March, 2020.
(2) Whether the learned trial Judge of the Federal High Court, Abuja Division Coram I.L Ojukwu J. , was right in his judgment dated 30/11/18 when he struck out the Originating Summons of the Appellant dated 18/11/15, on the ground that the Sovereign Guarantee of the Federal Government Vide the letter of the Ministry of Justice dated 20/10/15, was not binding and enforceable against the 1st Respondent and in view of the terms of settlement dated 3/2/13. (Grounds 5 and 6 the Grounds of Appeal) – Amended Notice of Appeal dated and filed on the 18th day of March, 2020.
(3) Whether the learned trial Judge of the Federal High Court, Coram I.L. Ojukwu Jr, was right in his Judgment dated 30/11/18, when he struck out the Originating Summons of the Appellant dated the 18th day of November, 2015 on the ground that the 1st Respondent which ignited the Appellant’s Suit had not waived its right to be served with any pre-action notice before the institution of the case in that:
(a) The right of an injunction is issued qua timet over a threatened existing legal right.
(b) An action for the enforcement of the terms of the simple contract in the Terms of Settlement executed between the Appellant and 1st Respondent dated 1st day of July, 2013, did not squire the issuance of, and or service of a pre-action notice under Section 43(2) of the AMCON Act.
(c) Section 36(1) of the Constitution of Nigeria is superior to, and overrides the fettering provisions of Section 43(2) of the AMCON Act.
(d) The very essence of law is to protect the oppressed, and not to aid the extermination of the oppressed before a vainglorious redress (Grounds 4 and 7 of the Grounds of Appeal) Amended Notice of Appeal dated and filed on the 18th day of March, 2020.
(4) Whether the learned trial Judge of the Federal High Court, Abuja Division, Coram I.L. Ojukwu J., was right when he struck out the Originating Summons of the Appellant dated the 18th day of November, 2015, on the ground that the Appellant had no locus standi to maintain the action in Suit NO: FHC/ABJ/CS/933/2015 without the consent and authorization of the 3rd Respondent and in view of the Terms of Settlement dated 3/7/13 (Grounds 2 and 3 of the Ground of Appeal) -Amended Notice of Appeal dated and filed on the 18th day of March, 2020.

On 16/6/2020, the 1st and 3rd Respondents filed a Notice of Preliminary Objection challenging the competence of Ground 1 of the Appellant’s Amended Notice of Appeal and Issue 1 of the Appellant’s Brief of Argument. They sought orders striking out the said Ground as well as Issue 1.

The 1st and 3rd Respondents also filed their Amended brief of argument on 16/6/2020 in which they argued their preliminary objection as well as the following four issues which they distilled from the Grounds of Appeal:
1. Whether the learned trial judge acted within its jurisdiction when it determined the issues raised by the parties in their respective processes? (Distilled from GROUND 1).
2. Whether the learned trial judge was right when he held that the 2nd Respondent’s letter of 20th October, 2015 does not constitute a sovereign guarantee nor is it binding on the 1st Respondent? (Distilled from GROUND 5).
3. Whether the learned trial judge was right when he held that the conditions precedent to instituting this action were not complied with by the Appellant? (Distilled from GROUNDS 3, 4 & 6).
4. Whether the learned trial judge was right when he held that the Appellant had no locus standi to maintain this action without the consent of the Receiver/Manager (3rd Respondent)? (Distilled from GROUND 2).

On receipt of the 1st and 3rd Respondent’s Brief of Argument, the Appellant filed a Reply Brief on 10/7/2020.

ARGUMENTS OF COUNSEL
APPELLANT’S SUBMISSIONS
APPELLANT’S ISSUE ONE (1)
At paragraph 4.02 of the Appellant’s Amended Brief of Argument, learned Counsel to the Appellant submitted that the learned trial Judge lacked the jurisdiction to strike out the Originating Summons of the Appellant dated 18/11/2015 on the process filed by the 1st and 3rd Respondents, having regard to Section 8(1) of the Legal Practitioners Act, 1975 (as Amended), Rules 17(5) & (6) of the Rules of Professional Conducts for Legal Practitioners, 2007 (as Amended) and Order 55 Rules (1) (2) of the Federal High Court (Civil Procedure) Rules, 2009.

He submitted further at paragraphs 4.03 – 4.09 to the effect that a Legal Practitioner cannot exercise his right of audience to represent a Co-Defendant in an action, as done in the instant case, where the 3rd Respondent’s name has variously appeared on processes filed for himself, a Legal Practitioner, Principal Counsel in Kunle Ogunba & Associates, as well as the 1st Respondents, in strict disregard to the extant provision of Rules 17(5) (6) of the Rules of Professional Conduct for Legal Practitioners, 2007, thereby rendering the entire proceedings which led to the judgment of the learned trial Court null and void. He relied on the authorities of FAWEHINMI V. NBA (NO 1) (1989) 2 NWLR (PT. 105) 494 at 547, PARAS C-F, Order 7 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2009.

On the fundamental nature of jurisdiction to the competence of the Court, learned Appellant’s Counsel relied on the cases of KALIO V. DANIEL (1975) 12 SC 175; BARCLAYS BANK OF NIGERIA V. CENTRAL BANK OF NIGERIA (1976) 6 SC. 175; AKERE V. GOV. OYO STATE (2012) 12 NWLR (PT. 1314) 240 at 207; MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341; ODOFIN V. AGU (1992) 3 NWLR (PT. 229) 350 AT 365, and other authorities.

Counsel to the Appellant submitted at paragraphs 4.14 – 4.23 of the Appellant’s Amended Brief of Argument to the effect that the processes filed by the 1st – 3rd Respondents are incompetent, and the judgment flowing from them, null and void, hence the said processes should be struck out and the Judgment of the trial Court set aside by this Court. He relied on the authorities of F.B.N. V. T.S.A. IND. LTD (2010) ALL FWLR (PT 537) 633 at 652; A.S.T.C. V. QUORUM CONSORTIUM LTD (2009)9 NWLR (PT. 1145)1 at PP.33-34, PARAS D-C; N.D.I.C. V. C.B.N. (2002) FWLR (PT. 99) P. 1021 at 1037 PARAS A-C; GE INT’L OPERATIONS LTD. V. Q-OIL & GAS SERVICES (2015)1 NWLR (PT. 1440) 244 at 266, PARAS D-F; ODOFIN V. AGU (1992)3 NWLR (PT. 229) 350 at 365, PARAS G-H, and other authorities. He urged the Court to resolve Issue 1 in favour of the Appellant.

APPELLANT’S ISSUE TWO (2)
At paragraph 5.02 of the Appellant’s Amended Brief of Argument, learned Counsel to the Appellant submitted that the learned trial Judge was wrong when he struck out the Originating Summons of the Appellant dated 18/11/15 on the ground that the Sovereign Guarantee of the Federal Government vide the letter of the Ministry of Justice dated 20/10/15 was not enforceable and binding against the 1st Respondent. He submitted further at paragraph 5.24 of his Brief of Argument that by the combined effects of Section 6(1) (i) and (l) of the AMCON Act 2010 (as Amended), the 1st Respondent is statutorily enjoined to accept and treat as security and or surety, the sovereign indemnity of the Federal Government of Nigeria vide the letter from the office of the Attorney-General of the Federation dated 20th day of October, 2015. Learned Counsel to the Appellant urged the Court to resolve Issue 2 in favour of the Appellant.

APPELLANT’S ISSUE THREE (3)
At paragraph 6.01 of the Appellant’s Amended Brief of Argument, Counsel to the Appellant submitted that the learned trial Judge was wrong when he struck out the Originating Summons of the Appellant on the ground that the 1st Respondent which ignited the Appellant’s suit had not waived its rights to be served with any pre-action notice before the institution of the Appellant’s case. He submitted further at paragraph 6.02 that by the nature of the terms of settlement in Suit No. FHC/L/CS/63/2013 signed by both the Appellant and the 1st Respondent, the parties executed a simple contract, the breach of which is maintainable at the suit of the 1st Respondent for recovery of debt. He submitted further at paragraph 6.32 of his Amended Brief of Argument that where a suit is brought under an express or specific contract, it is no longer necessary to serve on the Corporation Pre-action Notice.

The Appellant’s Counsel submitted at paragraph 6.28 of his Brief of Argument that having ignited the circumstances that gave rise to this action, the 2nd Respondent cannot approbate and reprobate at the same time to oppressively cage the Appellant without the intervention of this Court to protect the Corporate res of the Appellant from the imminent danger of spoliation by the unwarranted and boastful aggression of the 1st and 3rd Respondents.

APPELLANT’S ISSUE FOUR (4)
At paragraph 7.01 of the Appellant’s Amended Brief of Argument, the learned Counsel to the Appellant submitted that the Terms of Settlement in suit No. FHC/L/CS/63/2013 dated 3/7/2013 made no reference whatsoever to receivership or otherwise of the Appellant, the Terms of Settlement was never executed on behalf of the 1st Respondent by any receiver manager. He submitted further at paragraph 7.10 of his brief that the Appellant who never executed any Terms of Settlement with any purported receiver/manager is not expected at law to seek the consent of a non-existing entity before its constitutionally guaranteed access to Court is activated. Counsel to the Appellant submitted at Paragraph 7.05 of his Brief of Argument that locus standi does not depend on the success or merit of a case; all that is required of the Appellant as Plaintiff is to plead and prove facts establishing its rights, interest and obligation in respect of the subject matter of the suit and in the instant case, the Appellant had shown more than the legally required interest, thereby entitling it to the standing to sue. He relied on the authorities of OWODUNNI V. REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST & ORS (2000)10 NWLR (PT. 675) 315 at 354-355, PARAS. H-A, 375, PARAS. F-G and MOMOH V. OLOTU (1970) ALL NLR 117.

He submitted further at paragraph 7.10 of his brief that the Appellant whose legal right was variously threatened by the ignoble and unlawfully aggressive act of the 1st and 3rd Respondents has the requisite legal standing to approach the trial Court to seek redress.

1ST AND 3RD RESPONDENT’S ARGUMENTS
1ST AND 3RD RESPONDENT’S PRELIMINARY OBJECTION
At paragraphs 3.1 – 3.31 of the 1st and 3rd Respondent’s Amended Brief of Argument, Counsel to the 1st and 3rd Respondents submitted to the effect that an application to amend a Notice of Appeal does not amount to an application seeking leave to argue a fresh issue on appeal, as the Appellant in the instant case has done by raising a fresh issue not arising from the judgment of the trial Court. He submitted further that the failure and/or refusal of the Appellant to seek and obtain leave to introduce fresh points of law on appeal is extremely fatal and as such renders Ground 1 of its Amended Notice of Appeal and Issue 1 of its Appellant’s Brief incompetent, invalid and liable to be struck out. Relying on the authority of F.C.D.A v. SULE (1994) 3 NWLR (PT. 332) PAGE 257, learned 1st and 3rd Respondent’s Counsel contended that there is nowhere Section 8(1) of the Legal Practitioners Act, 1975 (as Amended) purports to oust the jurisdiction of a Court on the issue of representation to the 1st and 3rd Respondents contended further that a Ground that complains of representation of parties in a Court is a Ground of mixed law and fact and consequently requires leave of Court.

He relied on the authorities of AGU V. IKEWIBE (1991) 3 NWLR (PT. 180) PAGE 385; EHINLANWO V. OKE & 2 ORS (2008) 6-7 SC (PT. 11), NJEMANZE V. NJEMANZE (2013) 1-2 SC (PT. 1) 105 and IGIDI V. IGBA (1999) 6 SC (PT. 1) 114, and urged this Court to strike out Ground 1 of the Appellant’s Amended Notice of Appeal for being incompetent ab initio and Issue 1 distilled from it.

1ST AND 3RD RESPONDENT’S ISSUE ONE (1)
At paragraph 6.2 – 6.4 of the 1st and 3rd Respondent’s Amended Brief of Argument, learned Counsel to the 1st and 3rd Respondents submitted to the effect that the 3rd Respondent was duly appointed by the 1st Respondent as receiver/manager and that the 3rd respondent was not sued in private or personal capacity but as a manager/receiver duly appointed by the 1st Respondent, hence, Rule 17(5) of the Rules of Professional Conduct for Legal Practitioners 2007 does not apply to the 3rd Respondent. He relied on the authority of FAWEHINMI V. NIGERIA BAR ASSOCIATION & ORS (NO. 1) (1989) 2 NWLR (PART 105) PAGE 494. He submitted further at paragraph 6.9 of his Brief of Argument that the 3rd Respondent never appeared before the lower Court for himself or the 1st Respondent and did not seek for any form of right of audience to represent himself or the 1st Respondent.

At paragraph 6.10 – 6.11 of the 1st and 3rd Respondent’s Brief of Argument, Counsel submitted to the effect that in the Fawehinmi’s case, neither the trial Court nor the Court of Appeal struck out all the processes filed by Counsel on the premise that the Counsel was also a party to the suit and cannot represent a Co-Defendant, hence, the argument of the Appellant along this line is unknown to our legal jurisprudence. He urged this Court to hold that the case of AUDU V. GIDEON (2015)12 NWLR (PT. 1474) 495 AT P. 517-518, PARAS H-D relied upon by the Appellant is clearly distinguishable and not applicable to the instant case.

At paragraphs 6.30 – 6.54 of his Brief of Argument, learned Counsel to the 1st and 3rd Respondents submitted to the effect that the legal practitioners who signed and filed all processes on behalf of the 1st and 3rd Respondents are distinct from the 3rd Respondent and they are not parties to the suit, neither are they under any form of legal disability. Also, to hold that they cannot represent the interest of the 1st and 3rd Respondents will amount to a violation of the 1st and 3rd Respondents’ constitutional right to Counsel of their choice. He relied on the authorities of ATAKE V. AFEJUKU (1994) 9 NWLR (PT. 368) PAGE 379 at 427-428, PARAS H-A; A.G. FED. V. ICAN (2002)10 NWLR (PT. 776) P. 492; CHIEF JAMES NTUKIDEM & ORS V. CHIEF ASUQUO OKO & ORS (1986) 5 NWLR (PT. 45) P. 909 at 936 PARAS A-C; OKE & ANOR V. UBA PLC & ANOR (2015) LPELR-24827.

At paragraphs 6.55 – 6.62 of the 1st and 3rd Respondents’ Brief of Argument, learned Counsel to the 1st and 3rd Respondents submitted to the effect that by the provisions of Section 390 of the Companies and Allied Matters Act, the 3rd Respondent is an agent of the 1st Respondent, hence, the 3rd Respondent is clothed with the authority of the 1st Respondent as regards the filing of processes, and the processes which were jointly filed. He submitted further at paragraph 6.61 of his Brief of Argument that where the Registry of the Court in its wisdom assesses the processes as “official” and on the basis that the processes were filed jointly for and on behalf of the 1st Respondent and the 3rd Respondent who is an agent of the 1st Respondent (AMCON, an institution statutorily exempted from the payment of filing fees), the 3rd Respondent should not be made liable for the act of the lower Court’s officials. Counsel also contended that assuming without conceding that the 3rd Respondent ought to have paid filing fees irrespective of the fact that the processes were jointly filed by the Respondents, the law is that the remedy for non-payment and/or short payment of filing fees is an Order of Court that the filing fees be paid, as it does not go to the jurisdiction of the Court to entertain the matter. He relied on the case of AKPAJI V. UDEMBA (2009)6 NWLR (PT. 1138) P. 545 SC and JONPAL LTD V. AFRIBANK (NIG) LTD (2003)8 NWLR (PT. 822) P. 290. Counsel to the 1st and 3rd Respondents contended further that the Appellant did not raise the issue of appearance at the lower Court, and/or an issue arising from the judgment of the lower Court, therefore, it is too late in time for the Appellant to leverage on an issue it had consented to by its full participation in the proceedings at the lower Court.

1ST AND 3RD RESPONDENT’S ISSUE TWO (2)
At paragraphs 7.4 – 7.9 of the 1st and 3rd Respondent’s Brief of Argument, Counsel to the 1st and 3rd Respondent submitted to the effect that the AMCON Act, 2010 does not mandate the 1st Respondent to accept securities or guarantees. He submitted further at paragraph 7.10 that assuming without conceding that the 1st Respondent can accept forms of security and guarantee by virtue of Section 6 of the AMCON Act, the 2nd Respondent’s letter of 20th October, 2015 is neither a security nor a guarantee and cannot be enforced as such; the letter is at best a letter of intention and nothing more. Counsel to the 1st and 3rd Respondents contended further that there was no mutual assent of the parties as to the bindingness of the Solicitor-General of the Federation’s letter dated 20th October, 2015 by the parties and as such, the said letter cannot by any stretch of imagination be registered as a guarantee. He relied on the authority of OLAM NIGERIA LTD V. INTERCONTINENTAL BANK LTD (2009) LPELR-8275.

At paragraph 7.24 – 7.25 of his Brief of Argument, Counsel to the 1st and 3rd Respondents submitted to the effect that without any coercion, the Appellant executed the Terms of Settlement which was later made the consent judgment of the lower Court in FHC/L/CS/63/2013, which stated clearly the exposure of the Appellant to the 2nd Respondent and the mode of payment, and it was not stated anywhere in the Terms of Settlement that the 2nd Respondent or the Federal Government will offset the indebtedness of the Appellant to the 1st Respondent.

He urged this Court to hold in agreement with the lower Court that the letter of 20th October, 2015 (which clearly does not constitute a guarantee) is not binding on the 1st Respondent which enjoys independence and autonomy by virtue of the AMCON Act, 2010, and resolve Issue 2 in favour of the 1st and 3rd Respondents.

1ST AND 3RD RESPONDENTS’ ISSUE THREE (3)
At paragraphs 8.2 – 8.39 of the 1st and 3rd Respondents’ Amended Brief of Argument, Counsel to the 1st and 3rd Respondents submitted to the effect that by not filing a pre-action Notice before commencing this suit, the Appellant in violation of Section 43(2) of the AMCON Act, 2010, and a suit is incompetent and liable to be struck out where pre-action notice is provided for in a statute and it was not given before the commencement of the suit. He relied on the case of ADESANOYE V. ADEWOLE (2006)14 NWLR (PT. 1000) PAGE 242. He submitted further that the principle of qua timet injunction does not confer upon any litigant the right to disregard the sacrosanct provision of the law where a statute clearly provides for a mandatory pre-action notice, hence, the principle is inapplicable in the circumstance of the instant case. He contended further that the Appellant did not raise the issue on the principle of qua timet injunction before the lower Court and it does not form part of the decision of the lower Court. Learned 1st and 3rd Respondents’ Counsel submitted that the lower Court was right to have held that the jurisdiction of the Court was not properly activated by the Appellant, having failed to issue a Pre-action Notice. He urged this Court to resolve Issue 3 in favour of the 1st and 3rd Respondents.

1ST AND 3RD RESPONDENTS’ ISSUE FOUR (4)
At paragraphs 9.11 – 9.36 of the 1st and 3rd Respondent’s Amended Brief of Argument, Counsel to the 1st and 3rd Respondents submitted to the effect that by the provisions of Section 393(3) and Schedule 11 of the Companies and Allied Matters Act, when a creditor enforces his security by appointment of a Receiver/Manager, the assets of the company come under the control of the Receiver who becomes the alter ego of the Company in Receivership. The Receiver/Manager is imbued with the responsibility of taking decisions for the company, including the decision to sue or not to sue, hence, the company in Receivership cannot institute an action without the sanction of the Receiver/Manager, and more so, the company cannot bring an action against the Receiver/Manager during his tenure in that capacity. He relied on the authorities of INTER CONTRACTORS NIGERIA LTD V. NATIONAL PROVIDENT FUND MANAGEMENT BOARD (1988) VOL. 19 N.S.C.C. PART 1, P. 759; NATIONAL BANK FOR COMMERCE AND INDUSTRY & ANOR V. ALFIJIR (MINING) NIGERIA LIMITED (1993) 4 NWLR (PT. 287), P. 346 AT 359; UNIBIZ (NIG) LTD V. CBCL NIGERIA LTD (2001) 7 NWLR (PT. 713) P. 534 AT 541-542; WEMA BANK V. ONAFOWOKAN (2005) 6 NWLR (PT 921) P. 410 AT 419.

Learned Counsel to the 1st and 3rd Respondents contended further to the effect that by the institution of this matter against the 1st and 2nd Respondents by the Appellant without the consent of the 3rd Respondent, the Appellant lacked the locus standi to maintain this action against the 1st and 3rd Respondents, and the Court has no jurisdiction to entertain it. He relied on the cases of C. N. EKWUOGOR INVESTMENT (NIG) LTD V. ASCO INVESTMENT LTD (2011) 13 NWLR (PT. 1265) P. 565 and ADESANYA V. PRESIDENT, FEDERAL REPUBLIC OF NIGERIA (1981) 2 NCLR 358.

At paragraphs 9.38 – 9.39 of his Brief of Argument, Counsel to the 1st and 3rd Respondents submitted to the effect that assuming but not conceding that the Appellant had the mandate of the Receiver/Manager to commence this suit, it would have sued as “FIOGRET LTD (IN RECEIVERSHIP)” and not “FIOGRET LTD”, a status it presently does not have but arrogated to itself, hence, by the Appellant’s failure to disclose its present status as a company in receivership, it is not a proper party. He urged this Court to hold that the Appellant lacks locus standi to sue the Respondents.

In conclusion, learned Counsel to the 1st and 3rd Appellants urged this Court to dismiss the appeal of the Appellant with substantial cost.

APPELLANT’S REPLY TO THE 1ST AND 3RD RESPONDENT’S BRIEF OF ARGUMENT
In response to the 1st and 3rd Respondents’ Preliminary Objection, Counsel to the Appellant submitted at paragraphs 2.04 – 2.07 to the effect that jurisdiction is constitutional and a matter of law, therefore, an Appellant does not need leave to raise same on appeal; and jurisdiction is so fundamental that it can be raised at any time, even at the Supreme Court for the first time; and it can also be raised suo motu by the Court. He relied on the authorities of ONI V. CADBURY NIG PLC (2016)9 NWLR (PT. 1516) 80 AT P. 97; UTIH V. ONOYIVWE (1991)1 NWLR (PT. 166) 166; and OSUDE V. AZODO (2017)15 NWLR (PT. 1588) 293 AT 220. He submitted further at paragraph 2.08 of his Brief that in the circumstance of the Appellant’s case, the issue of jurisdiction raised in the Appellant’s Amended Notice of Appeal, which was amended vide the Order of this Court on 18/3/2020, as well as the corresponding issue one raised and argued by the Appellant in its Amended Brief of Argument is strictly an issue of law and is, therefore, a veritable exception to the rule that requires the leave of the appellate Court to be raised on appeal as a fresh issue; and it cannot be waived by the Appellant nor the trial Court. He relied on the authorities of C.G.G. (NIG) LTD V. AMINO (2015) 7 NWLR (PT. 1459) 577 AT 592; OBIAKOR V. STATE (2002) 10 NWLR (PT. 776) 612; DURWODE V. STATE (2000)15 NWLR (PT. 691) 467; WEMA SECURITIES AND FINANCE PLC V. N.A.I.C (2015)16 NWLR (PT. 1484) 93 AT PP. 123-124, PARAS B-D & G.

He urged this Court to dismiss the Preliminary Objection of the 1st and 3rd Respondents and determine the Appeal of the Appellant on its merit.

In response to the 1st and 3rd Respondents’ Issue One, Counsel to the Appellant submitted at paragraphs 3.03 – 3.04 of his Reply to the 1st & 3rd Respondents’ Brief of Argument to the effect that contrary to the erroneous argument of the 1st and 3rd Respondents, the 3rd Respondent herein was never sued in the capacity of a receiver/manager. Also, the case of the Appellant, as depicted in its Originating Summons was strictly and entirely in respect of specific contract as contained in the Terms of Settlement and the 3rd Respondent was sued specifically as a Solicitor/Legal Practitioner. The learned Appellant’s Counsel submitted further at paragraph 3.09 of his Reply Brief that the 3rd Respondent who was sued in his personal capacity as a solicitor cannot equate himself with the 1st Respondent, and cannot initiate proceedings in defence of an action brought against him and the 1st Defendant. He submitted at paragraphs 3.10-3.12 of his Reply Brief to the effect that the interpretation given to Rules 17(5) and (6) of the Rules of Professional Conduct for Legal Practitioners is too narrow, as the expectations of these sections are beyond mere physical appearance of Counsel in Court, but encompasses the entire gamut of initiating proceedings by due process as well as the legal capacity without inhibition to issue processes for the purposes of filing in Court. He submitted further that the overriding conflict of interest is apparent, such that, in whichever way it is looked at, the 3rd Respondent cannot and could not have been allowed to represent himself as a legal practitioner and the 3rd Respondent in the same suit. He relied on the case of MED FORTH V. BLAKE (1999) ALL ER 97.

In response to Issue 2 of the 1st & 3rd Respondents, learned Counsel to the Appellant submitted that it is apparent from both the findings of the learned trial Court at page 553 of the Record of Appeal and the submissions against the interest of the 1st and 3rd Respondents in their paragraph 7.27 of the 1st and 3rd Respondents’ Amended Brief of Argument that the issue of the applicability of Section 6(1) of the AMCON Act in relation to the facts and circumstances of the Appellant’s case is not in doubt, as the 1st Respondent was bound by law to accept the Sovereign Guarantee of the Federal Government vide the office of the Attorney General of the Federation in so far as the issue bordered on the powers of the 1st Respondent to enforce any security, guarantee or indemnity.

In response to the 1st and 3rd Respondent’s Issue 3, Counsel to the Appellant submitted that the circumstances of the Appellant’s case before the learned trial Judge did not entitle the 1st Respondent to any Pre-action Notice for the following reasons: the action of the Appellant was founded on the enforcement of a simple contract, a suit bordering on constitutionalism does not require a Pre-action Notice, the 3rd Respondent is a private Legal Practitioner on the suit of the Appellant and he is not entitled to a Pre-action Notice, the 1st and 3rd Respondents ignited the litigation that gave rise to the case, the suit of the Appellant was not proceeded on any existing Consent Judgment between the Appellant and the 1st Respondent. He contended that Section 43(2) of the AMCON Act as well as all such enactments worded like it do not apply to cases of contract. He relied on the authorities of AZUBUIKE V. GOV. OF ENUGU STATE (2014) 5 NWLR (PT 1400) 364 AT 401; NPA V. C.G.F.C.S (1974) 1 ALL NLR (PT. 2) 463 and other authorities.

Counsel to the Appellant submitted at paragraph 5.06 of his Reply Brief to the effect that under the principle of ‘qua timet injunction’, the learned trial Judge could not have expected the law to demand the impossible against the helpless Appellant who ran to Court for succor, by demanding the Appellant to comply with the expectations of Section 43(2) of the AMCON Act (as Amended) and in the face of imminent threat of extinction from the 1st and 3rd Respondents. He relied on the case of OHUKA V. STATE (1988) 1 NWLR (PT. 72) 539 AT 551. He urged this Court to resolve this issue in favour of the Appellant and against the 1st and 3rd Respondents.

In response to the 1st and 3rd Respondents’ Issue 4, counsel to the Appellant submitted at paragraph 6.02 of his Reply Brief that the Terms of Settlement made no reference whatsoever to the 3rd Respondent who was not a signatory. He submitted further at paragraph 6.03 – 6.04 to the effect that in law, a company does not lose its identity nor title to the goods in receivership by the mere fact of receivership and directors are at liberty to deal with assets of the company that are not affected or encumbered by the receivership. He relied on the authority of O.B.I. LTD V. U.B.N. PLC (2009) 3 NWLR (PT. 1127) 129; S.E.A.P.S. LTD V. OGUNAIKE (2008) 14 NWLR (PT. 1106)1 AT 16-17, PARAS G-A; INTERCONSTRUCTORS NIG. LTD V. U.A.C. (1988) 2 NWLR (PT. 76) 280; PHARMATEK IND. LTD V. TRADE BANK NIG PLC (1997) 2 NWLR (514) 639.

Counsel to the Appellant submitted further that assuming without conceding that the Appellant was in the receivership of the 3rd Respondent with reference to the Terms of Settlement, such receivership did not extend to the Appellant’s sum of N4.3 Billion in the custody of the Federal Government of Nigeria.

He urged this Court to resolve Issue 4 in favour of the Appellant.

I have carefully perused the Appellant’s Issues for Determination in this Appeal. The said issues are rather presumptuous as they already contain conclusions on issues which this Court is expected to decide upon. Although it is always advisable to adopt the Issues for Determination distilled by the Appellant to determine an appeal, in the instant case, these issues cannot be competently adopted for consideration of this appeal. I will therefore make preference for the issues formulated by the 1st and 3rd Respondents in their Brief of Argument and consider this appeal based on same.

The issues for determination are therefore as follows:
1. Whether the learned trial judge acted within its jurisdiction when it determined the issues raised by the parties in their respective processes? (Distilled from GROUND 1).
2. Whether the learned trial judge was right when he held that the 2nd Respondent’s letter of 20th October, 2015 does not constitute a sovereign guarantee nor is it binding on the 1st Respondent? (Distilled from GROUND 5).
3. Whether the learned trial judge was right when he held that the conditions precedent to instituting this action was not complied with by the Appellant? (Distilled from GROUNDS 3, 4 & 6).
4. Whether the learned trial judge was right when he held that the Appellant had no locus standi to maintain this action without the consent of the Receiver/Manager (3rd Respondent)? (Distilled from GROUND 2).

But before I proceed, let me quickly address the Preliminary Objection raised by the 1st and 3rd Respondents.

RESOLUTION OF PRELIMINARY OBJECTION:
In the resolution of the 1st and 3rd Respondent’s Preliminary Objection, it is relevant to note that they are only opposed to the consideration of Ground One of the Amended Notice of Appeal and Issue No. 1 of the Appellant’s amended brief of argument.

I have already set out the Appellant’s issue number one in the earlier part of this Judgment. Ground No. 1 of the Amended Notice of Appeal from which the said issue was distilled from reads thus:
“GROUND ONE
The learned trial Judge erred in law when he struck out the Suit of the Appellant and proceeded without jurisdiction to entertain and determine the incompetent Motion on Notice of the 1st & 3rd Respondents dated the 16th day of January, 2016 and other processes filed thereon by the 1st & 3rd Respondents, contrary to both Section 8(1) of the Legal Practitioners Act, 1975 as amended, and Rules 17(5) & (6) of the Rules of Professional Conduct for Legal Practitioners, 2007; Order 55 Rules 1 & 2 of the Federal High Court (Civil Procedure) Rules, 2009.”

It does not appear to be in dispute amongst parties to this appeal that the issue of the competence of the 1st and 3rd Respondent’s motion on notice dated 13/1/2016 was never raised before the lower Court nor considered by the lower Court in its judgment appealed against. It is not in dispute either that the issue raised vide the Appellant’s issue number one and Ground Number One of its Notice of Appeal is a new/fresh issue. I have also carefully perused the Record of Proceedings and judgment of the lower Court and I find this to be so.

The issue of the competence of the 1st and 3rd Respondents’ Motion on Notice dated 13/1/16 for failure to comply with the provisions of the law to wit; Section 8(1) of the Legal Practitioners Act; Rules 17(5) & (6) of the Rules of Professional Conduct for Legal Practitioners; Order 55 Rules 1 & 2 of the Federal High Court (Civil Procedure) Rules, 2009 never featured at the lower Court. It is being raised for the very first in this appeal. It is thus a new issue. The position of the law is that the Appellant can only raise such a fresh issue and make it a ground of appeal with leave of this Court. See the cases of ATTORNEY-GENERAL OF OYO STATE & ANOR V. FAIRLAKES HOTEL LIMITED (1988) LPELR-624(SC); C.C.C. THRIFT & CREDIT SOCIETY V. EKPO (2001) LPELR-6984(CA) and CHIEKE V. NOSIKE (2017) LPELR-42618(CA). Any such fresh issue raised without leave is thus incompetent.

The records of this Court show that the Appellant had approached this Court vide a Motion on Notice dated 19/9/2019 for leave to amend its notice of appeal by adding an additional ground of appeal which I have set out above. The application was granted by this Honourable Court pursuant to which the Appellant filed the Amended Notice of Appeal dated 18/3/2020 with the aforementioned Ground One being the additional ground.

Let me make it abundantly clear that what the Appellant sought and obtained from this Court was leave to file an additional ground of appeal. An additional ground of appeal is not necessarily a new/fresh issue. Leave to file additional ground simpliciter presupposes that such additional ground arises from the judgment appealed from but had been omitted from the original notice of appeal. Leave to file and argue new/fresh points or grounds of appeal means those new issues/grounds do not directly arise from the decision of the lower Court appealed from. The two are quite different. See the cases of AJUWON & ORS v. ADEOTI (1990) LPELR-310(SC) and ADIO & ANOR V. STATE (1986) LPELR-183(SC) where the position was held by the Supreme Court that leave to argue additional grounds is not the same as leave to argue fresh issues not raised in the Court below.
Considering that what was sought and therefore granted to the Appellant by this Honourable Court was leave to file additional ground of appeal and not leave to argue fresh issues, what then is the implication on the Appellant’s Ground Number One which actually does raise new/fresh issues? What is the implication of obtaining leave to file additional grounds and then filing grounds which raise new/fresh issues?
The answer to this conundrum was provided by the Supreme Court in the case of ADIO & ANOR V. STATE (SUPRA). In that case the apex Court per the eminent jurist Oputa JSC (of blessed memory) held as follows:
“Unlike the two learned counsel in the Court below, Chief Akinrele, SAN, for the Appellants in this Court had a lot to argue that is very commendable but to argue in this Court issues and matters which were not argued in the Court below, one has to apply specifically for leave to do so. The application for leave to argue additional grounds is not quite the same as an application for leave to argue issues not raised in the Court below. There was no specific application in that respect. The general rule adopted by this Court is that an Appellant will not be allowed to raise on appeal, a question which was not raised or argued in the Court below. This, however, is not an inflexible and rigid rule. It is subject to the demands of justice. Thus where the question involves substantial points of law, either substantive or procedural, the Court may entertain the Appeal all the same and prevent an obvious miscarriage of justice. K. Akpene v. Barclays Bank of Nigeria Limited and F.O. Osawaru (1977) 1 SC. 47; Shonekan v. Smith (1964) ALL N.L.R. 168 at p. 173; Stool of Abinabina v. Chief Kojo Enyimadu (1953) 12 W.A.C.A. 171 at p.173 all refer. For the above reason, I shall now deal with the “additional” grounds one by one.”

In the instant appeal, leave of this Court was sought to add Ground One of the Amended Notice of Appeal albeit, raising a new issue through the same Ground One. I have considered this very carefully and I am of the opinion that the justice of the case demands that the said Ground and the issue raised therefrom ought to be considered. The 1st and 3rd Respondents have utilized the opportunity of responding to the merit of the issue quite well. They would not be prejudiced by a consideration by this Court of the merit of the issues that were formulated from Ground One of the Amended Notice of Appeal which pertained to the competence of processes that gave rise to the decision of the lower Court in its judgment.

I shall therefore proceed to consider anon the merits of Issue No. One (formulated from Ground One of the Amended Notice of Appeal) along with the other issues of the briefs of argument.

The Preliminary Objection therefore fails and it is accordingly dismissed.

RESOLUTION OF ISSUE NO. 1:

“Whether the learned trial judge acted within its jurisdiction when it determined the issues raised by the parties in their respective processes” (Distilled from GROUND 1).”

Now the competence of the 1st & 3rd Respondents’ Motion on Notice dated 13/1/2016 (which informed the lower Court’s decision to find the Appellant’s Originating Summons incompetent) is being challenged by the Appellant for breaching the provisions of Section 8(1) of the Legal Practitioners Act, Rules 17(5) & (6) of the Rules of Professional Conduct for Legal Practitioners and Order 55 Rules 1 & 2 of the Federal High Court (Civil Procedure) Rules 2009.

Section 8(1) of the Legal Practitioners Act provides as follows:
8(1) Subject to the provisions of the next following subsection and of any enactment in force in any part of Nigeria prohibiting or restricting the right of any person to be represented by a legal practitioner in proceedings before the Supreme Court or the Shana Court of Appeal or any area or customary Court, a legal practitioner shall have the right of audience in all Courts of law sitting in Nigeria. Rules 17(5) & (6) of the Rules of Professional Conduct for Legal Practitioners provide as follows:
17.
(5) A lawyer shall not appear as counsel for a client in a legal proceeding in which the lawyer is himself a party.
(6) Where a lawyer is required to decline employment or to withdraw from employment under any of these Rules, no partner, associate or any lawyer affiliated with him or his firm may accept or continue such employment.
In view of the foregoing provisions, it is quite settled that a litigant who is a legal practitioner in a cause or matter ceases to be a legal practitioner in so far as such cause or matter is concerned and is therefore not competent to represent or conduct the case of any other party in the proceedings. In such a case, he appears in person as a litigant and not as a legal practitioner and may therefore only speak on his own behalf. See the cases of FAWEHINMI V. N.B.A. (NO.1) (1989) 2 NWLR PT. 105 P. 494, ATAKE V. AFEJUKU (1994) LPELR-585(SC) and AUDU & ANOR V. GIDEON & ANOR (2014) LPELR-24190(CA).

I have carefully perused the 1st and 3rd Respondents’ Motion on Notice dated 13/1/16 before the lower Court (see page 280 of the Record). The said Motion is signed by G. C. Duru Esq. of Kunle Ogunba & Associates i.e. the 1st & 3rd Defendants/Applicants’ Solicitors. The 3rd Respondent on record at the lower Court is ‘Adekunle Ogunba SAN (Practicing under the name of Kunle Ogunba & Associates)’. It appears that Counsel from the law firm of the 3rd Respondent appeared for and represented both the 1st and 3rd Respondents at proceedings in respect of the Motion dated 13/1/16. This is in breach of Rules 17(5) & (6) of the Rules of Professional Conduct for Legal Practitioners.

I find the decision of this Court in the case of WAPIC INSURANCE PLC & ANOR V. MATTHEW ALALE & ORS (2019) LPELR-49240(CA) rather instructive. In that case, this Court had held per Ikyegh JCA thus:
“The net result is that the legal representation of the respondents by one of the respondents was no legal representation in law; consequently, the case conducted at the Court below was riddled with incompetence as due process to vest the Court below with the competence to determine the case was not complied with by the respondents rendering the proceedings incompetent vide Madukolu and Anor. v. Nkemdilim (1962) 2 SCNLR 341 at 348 thus –
“Put briefly, a Court is competent when-
…If the Court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial; the argument will be that the irregularity was so grave as to affect the fairness of the trial and the soundness of the adjudication…; which case the Appeal Court may think fit to set aside the judgment. A defect in procedure is not always fatal.”
Provisionally, I do not see much in the argument on the action being brought in a representative capacity when the respondents have common grievance against the Appellant which should sustain an action in a representative capacity in respect of labour-related litigation vide Durbar Hotel Plc. v. Ityough (2017) 7 NWLR (pt. 1564) 256.”

I have looked at the peculiar facts of the instant case. The matter has advanced beyond trial at the lower Court. It is now on appeal before this Court. The implication of finding that the 1st and 3rd Respondents had no legal representation at the lower Court is that whatever efforts they put into defending the matter at the lower Court will go to naught and the Appellant’s case would stand unchallenged. This kind of technical justice is no justice at all. This would not only unfairly prejudice the interest of the 3rd Respondent, the lawyer with whom G.C. Duru Esq is affiliated, but also the 1st Respondent whom G.C. Duru Esq also appeared for and represented at the proceedings of the lower Court. And to think that the issue is not that G.C. Duru is not a lawyer but just simply that she is affiliated with the 3rd Respondent (a lawyer who ought not to represent himself and a co-respondent) in the matter.

I consider the anomaly in this situation to be a procedural defect, the right to complain against which the Appellant had waived by failing to raise an objection timeously. It is trite law that a procedural irregularity touching on jurisdiction of the Court can be waived by a party where there is no miscarriage of justice. – see the case of EKAETE V. UBN PLC (2014) LPELR-23111(CA).

The second leg of Issue No. 1 pertains to payment of filing fees in respect of the same Motion dated 13/1/16 filed by the 1st and 3rd Respondents and heard by the lower Court.

Order 55 Rule 1 of the Federal High Court (Civil Procedure) Rules 2009 (applicable to the lower Court) provides:
(1) Subject to the provisions of any written law and of the foregoing orders the fees set out in Appendix 2 to these Rules shall be payable by any person commencing the respective proceedings or desiring the respective services for which they are specified in the Appendix.

From the above, it is clear (and it is not in dispute amongst parties) that fees are payable on processes of the lower Court such as the 1st and 3rd Respondents’ Motion on Notice dated 13/1/16 taken at the lower Court.

There appears to be no dispute that filing fees were however not paid in respect of the said Motion. I shall consider the 1st and 3rd Respondents’ contention that the 1st Respondent, being a statutory institution, is exempted from payment of Court filing fees.

Upon a perusal of the Motion dated 13/1/16, the mark ‘Official’ and stamp by the lower Court’s cash office is very legible. It can’t be missed.

Rule 2 of Order 55 of the lower Court’s Civil Procedure Rules further provides as follows:
(2) These fees are waived in respect of a party which is or represents a Government Ministry, non-Ministerial Departments, Federal, State and Local Government or any of their agencies.

The 1st Respondent was established under the Asset Management Corporation of Nigeria Act 2010 with specific objectives and functions. In view of the Act establishing it, there can be no gainsaying that the 1st Respondent is an agency of the Federal Government of Nigeria. It is thus entitled to the waiver of fees under Rule 2 of Order 55 of the lower Court’s Rules.

Now while I am of the opinion that such waivers only inure to the benefit of the 1st Respondent, the wordings of the above rule have extended the benefit to representatives of the 1st Respondent.

I am therefore of the view that the filing fees for the 1st and 3rd Respondent’s Motion dated 13/1/16 was properly waived by the lower Court’s cash office pursuant to Rule 2 of Order 55 of the lower Court’s Rules.

Assuming I am wrong and by some stretch of imagination the 1st and 3rd Respondents are deemed liable to pay filing fees in respect of their motion, what is the effect of non-payment of filing fee on their motion?

Case law appears to be divided on the effect of non-payment or inadequate payment of filing fees. I shall limit myself to decisions of the Supreme Court in the consideration of these.
In the case of ABIA STATE TRANSPORT CORP & ORS V QUORUM CONSORTIUM LTD (2009) LPELR-33(SC) the Supreme Court held the position that failure to pay necessary filing fees meant that the processes were not properly before the Court.
However, in the case of AKPAJI V. UDEMBA (2009) LPELR-371(SC), the same Court held that failure to pay filing fees is a mere irregularity which, when not taken timeously or when acquiesced, becomes incapable of affecting the proceedings.
The latter position was favoured and followed by the Supreme Court in a more recent decision in the case of RASAKI & ANOR V. AJIJOLA & ANOR (2017) LPELR-47013(SC) where the apex Court held per Nweze JSC:
“The agitation in the first issue in this Appeal is one that had, hitherto, polarised the views of their lordships of this Court into, what may be termed, the liberal and restrictive (or structural constructionist) positions. On the one hand, the structural constructionist view held that non-payment of filing fees was not a matter of procedural jurisdiction, but one of substantive jurisdiction.
As such, this view maintained that the jurisdiction of the Court to hear and determine any matter was invoked by the “filing of the appropriate process in the registry” an expression which means payment by the litigant of the appropriate filing fees as assessed by the appropriate or designated Registrar of the Court concerned.
The implication, according to this view, was that when a process was not duly filed before the Court, it did not exist in the eyes of the law and as such the jurisdiction of the Court could not be said to be properly invoked. The decisions that fell under this category included. O.O.M.F. Ltd v. N.A.C. Ltd (2008) 12 NWLR (Pt. 1098) 412, 427 – 428; Okolo v. U.B.N. (2004) 3 NWLR (Pt. 859) 87; Moore v. Tayee (1934) 2 WACA 43.
On the other hand, there was the liberal view which held that non-payment of filing fees had nothing to do with the jurisdiction of the Court to entertain the action. According to this view, failure to pay filing fees did not raise any issue of jurisdiction. As such, the failure to fulfill the provisions of the High Court Rules in that regard was a mere irregularity which when not taken timeously or when acquiesced in, was incapable of affecting the proceedings in any way, Akpaji v. Udemba (2009) ALL FWLR (Pt. 471) 811, (2009) 6 NWLR (Pt. 1138) 545, 562; approvingly citing and relying on Sonuga v. Anadein (1967) NMLR 77, 79; Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 195, 202 – 203; Noibi v. Fikolati & Anor. (1987) 1 NWLR (Pt. 52) 619, 632, (1987) 3 SCNJ 14; Alhaji Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387, 405 – 406, (1987) 7 SCNJ 216 and the decision of the Court of Appeal in A.C.B Ltd v. Henshaw (1990)1 NWLR (Pt. 129) 646, 650.
The latter view, that is, the liberal view, was anchored on a safeguard which Iguh JSC broached in Onwugbufor & Ors. v. Okoye & Ors. (1996) 1 NWLR (Pt. 424) 252, 291 – 292, (1996)1 SCNJ 1, 36, (1996) 34 LRCN 1 for ensuring the sustenance of such a process filed without the requisite fees. According to this view, “the usual remedy is an order by the lower Court that the appropriate fees or any shortfall be paid. [This is so for] it has nothing to do with the jurisdiction of the lower Court to entertain the claim”, Akpaji v. Udemba 562, para C.
In furtherance of this liberal approach, where inadequate fees were paid for a writ of summons, the trial Court was within its right to allow the plaintiff some time to pay the balance of the fees, Lawal & Anor. v. Odejimi & Anor. (1963) ALL NLR 569, 570, approvingly adopted and applied in Akpaji v. Udemba 562, para E; also, State v. Ugbor & Anor. (1979) 1 MSLR 521, 523 approvingly adopted and applied in Akpaji v. Udemba 562, para E.
The rationale for the invocation of this remedial action was that the object of the provisions of payment of filing fees in the said Rules was to protect the public revenue, see Lawal & Anon. v. Odejimi & Anor. (1963) ALL NLR 569, 570, approvingly adopted and applied in Akpaji v. Udemba 563 para C.
Instructively, the two divergent positions of this Court anchored their reasoning on the same case of Onwugbufor & Ors. v. Okoye & Ors. (1996) 1 NWLR (Pt. 424) 252, 291 – 292, (1996) 1 SCNJ 1, 36, (1996) 34 LRCN 1, where Iguh JSC after adopting the general proposition that payment of fling fees was a condition precedent necessary to the exercise of the jurisdiction of the Court, added a rider thus:
“If the default in payment is that of the plaintiff, the claim in respect of which such prescribed fees have not been paid cannot be said to be properly brought before the Court and should be struck out in the absence of an appropriate remedial action or application to regularize such anomaly. ” (Italics supplied for emphasis)
In Akpaji v. Udemba 563; para C; Ogbuagu JSC threw further light on this safeguard. Listen to his lordship:
“So, it can be seen that there is a rider so to speak. The appropriate remedial action was the said order of the Court below even without the said motions of the respondent afore-stated. But in any case, not only did the respondent apply for leave of the Court below to pay the appropriate fees, it exhibited the receipt of the payment.
Like the lead judgment in the instant appeal, I align myself with the liberal approach to the interpretation of this question, S.P.D.C. Ltd v. Agbara (2016) 2 NWLR (Pt. 1496) 353; Noibi v. Fikolati & Anor. (1987) 1 NWLR (Pt. 52) 619; Akpaji v. Udemba; A.C.B. Ltd v. Henshaw; Sonuga v. Anadein; Ezomo v. Oyakhire; Noibi v. Fikolati & Anor.; Alhaji Saude v. Abdullahi.
Put differently, I espouse the liberal view that non-payment of the appropriate fees in full is a mere irregularity which is incapable of vitiating the proceedings; it has, scarcely, anything to do with the radical question of the jurisdiction of the trial Court. Although, such a process may be voidable; it, certainly, is not void, Akpaji v. Udemba, approvingly, citing the judgment of the Court of Appeal in A.C.B. Ltd v. Henshaw (1990) 1 NWLR (Pt. 129) at 651 and the High Court judgments in Lawal & Anor. v. Odejimi & Anor. (1963) ALL NLR (Reprint) 569, 570; The State v. Ugbor & Ors. (1971) 521, 523.”
I also adopt the liberal view and hold that any failure on the part of the 1st and 3rd Respondents to pay filing fees (if required) in respect of their Motion dated 13/1/16, already considered by the lower Court, is a mere irregularity which does not vitiate the Motion or the competence to entertain same in the circumstances.

In view of all the foregoing, I hold the view that the lower Court could, and did, competently entertain the 1st and 3rd Respondents’ Motion on Notice dated 13/1/16 (at page 280 of the Record), and I so hold.

Issue for determination No. 1 is consequently hereby resolved against the Appellant and in favour of the 1st and 3rd Respondents.

RESOLUTION OF ISSUE NO. 2:
“Whether the learned trial judge was right when he held that the 2nd Respondent’s letter of 20th October, 2015 does not constitute a sovereign guarantee neither is it binding on the 1st Respondent? (Distilled from Ground 5).”

This issue borders on the interpretation of provisions of the Asset Management Corporation of Nigeria Act 2010 particularly the powers of the 1st Respondent to accept guarantees.

Granted, Section 6(1)(i) of the Asset Management Corporation of Nigeria Act 2010 provides that the 1st Respondent shall have the power to accept any security, guarantee, indemnity or surety. However, does this provision make it obligatory and mandatory for the 1st Respondent to accept such security, guarantee, indemnity or surety from anyone including the Federal Government of Nigeria?

I would like to examine some of the relevant provisions regarding the functions, objectives, and powers of the 1st Respondent under the Act establishing it, in order to have a proper understanding of the issue at hand.
Now, Section 1(1) and (2)(a)& (b) of the law establishing the 1st Respondent and applicable at the time of instituting the Appellant’s action at the lower Court i.e. the Asset Management Corporation of Nigeria Act 2010 (AMCON Act 2010) provides that the 1st Respondent shall be a body corporate with ability to sue or be sued in its corporate name.
Sections 4, 5, and 6 of the AMCON Act 2010 provide for the objects, functions, and powers of the 1st Respondent respectively. See the case of FUTO V. AMCON (2019) LPELR-47327(CA).
One of the objects of the 1st Respondent is to efficiently manage and dispose of eligible bank assets acquired by it in accordance with the Act establishing it.
Its functions include, inter alia, acquiring, holding, managing, realizing, and disposing of eligible bank assets. Its functions also include performing other functions directly related to the management or realization of eligible bank assets it has acquired as well as taking all necessary or expedient steps to protect, enhance or realize the value of such eligible bank assets. See particularly Section 5(a), (c), (e) and (f) of AMCON Act 2010.
In realizing its objects and performing its functions, the 1st Respondent possesses quite an arsenal of powers. One of such has been mentioned earlier and is the source of the Appellant’s grievance i.e. the power to accept any security, guarantee, indemnity, or surety under Section 6(1)(i). Other powers include the power to initiate or participate in any enforcement, restructuring, or other compromise. The power to enforce any security, guarantee, or indemnity. The power to compromise any claim, or forgive or forebear any debt or other obligation owed to the 1st Respondent. The power to do all such other things as the Board of the 1st Respondent considers incidental or conducive to the attainment of its functions under the Act.

Now the following provisions are very crucial to the controversy between parties to this appeal as to the status of the 1st Respondent vis-a-vis its functions and powers at the time of the Appellant’s cause of action and instituting the action at the lower Court. Section 1(4) of the AMCON Act 2010 provided as follows:
(4) Except as otherwise provided in this Act, the Corporation shall be independent in the discharge of its functions.
Section 6(3) provides thus:
(3) Except as otherwise provided in this Act, the Corporation may carry out any of its functions without the consent or approval of any other person or authority.
The foregoing is very instructive. The provisions are clear and must be given their simple ordinary and grammatical meaning. See the case of SUSWAM V. FRN & ANOR (2020) LPELR-49524(CA).
It simply means that the 1st Respondent is not subservient to anyone or any authority in performing its functions. Putting all the relevant provisions of the AMCON Act 2010 into consideration, therefore, it follows that the 1st Respondent has absolute discretion in the area of when, how (or even if at all) to exercise its powers in the performance of its functions under the Act.
The only exception is where the Act itself specifically imposes a restriction on the exercise of the 1st Respondent’s powers or authority. A typical example of this is Subsection 5 of Section 6 under which the 1st Respondent’s power to compromise or forgive debt is specifically limited by the requirement of the approval of the Minister of Finance acting on the recommendation of the Central Bank of Nigeria.
Thus, except there is a specific provision in the AMCON Act 2010 placing a limitation on the exercise of the 1st Respondent’s powers conferred upon it by the Act, the 1st Respondent is free to exercise its discretion on exercising its powers to achieve its functions.
The Appellant’s suggestion that the 1st Respondent is under the control of the Federal Government of Nigeria or the Central Bank of Nigeria in the exercise of its powers or functions is erroneous. The law says otherwise.
The Appellant’s position that the 1st Respondent was obliged to accept an offer of guarantee to pay the Appellant’s debt owed to the 1st Respondent is therefore far from the truth. In truth, the 1st Respondent is not obligated under the law to accept such offer of guarantee from anyone or authority. What it has is a discretion to do so and failure or refusal to exercise this discretion cannot be made subject of any debate.

In my final analysis of this issue, it is clear from the application of the relevant provisions of the law to the peculiar facts of this case that the 1st Respondent is not under any obligation whatsoever to accept the offer of guarantee made by the 2nd Respondent to pay the Appellant’s debt owed to the 1st Respondent.

Issue number 2 is thus hereby resolved against the Appellant and in favour of the 1st and 3rd Respondents.

RESOLUTION OF ISSUE NO. 3:
“Whether the learned trial judge was right when he held that the conditions precedent to instituting this action was not complied with by the Appellant? (Distilled from GROUNDS 3, 4 & 5).”

A proper pre-action notice has been held to be a letter usually given by the intending plaintiff’s solicitor to the prospective defendant, giving him notice of intention to institute legal proceedings against him for whatever cause of action and giving specific period of time to remedy same failing which legal proceedings would be instituted after the expiration of such period. See NWADIKE V. A.S.L.G. (2008) 16 NWLR PT. 1112 P. 203 AT P. 220 PARAS. D-E and NTIERO V. N.P.A. (2008) 10 NWLR PT. 1094 P. 129.

The Supreme Court has emphasized the importance of compliance by a plaintiff intending to bring an action with the provisions of the law on pre-action notice against a statutory corporation as it is a condition precedent for instituting an action against such statutory corporation. See AMADI V. NNPC (2000) LPELR-445(SC) and FEED & FOOD FARMS (NIG) LTD V. NNPC (2009) LPELR-1274(SC).

Now failure to serve pre-action notice, where it is statutorily and mandatorily required, renders an action commenced in breach of such requirement incompetent and the Court would lack the jurisdiction to entertain such suit until such a time as the Court is satisfied that such pre-action notice has been served. See the Supreme Court cases of NNONYE V. ANYICHIE (2005) 2 NWLR PT. 910 P. 623 and NTIERO V. N.P.A. (SUPRA). See also ETI-OSA LOCAL GOVT. V. JEGEDE (2007) 10 NWLR PT 1043 P. 537 and ABUJA MUNICIPAL AREA COUNCIL V. C.N. OKOLI TRANSPORT CO. LTD (2009) LPELR-3579(CA).
This is the position of the law.
Section 43(2) of AMCON Act 2010 provides as follows:
43(2) 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 law clearly requires a pre-action notice to be served on the 1st Respondent. It is however not in dispute that no such pre-action notice was served on the 1st Respondent by the Appellant before commencing its action against the 1st Respondent at the lower Court.
The Appellant has referred this Court to Subsection 3 of Section 43 of the AMCON Act 2010 for reasons why the protection of requirement of pre-action notice would not avail the 1st Respondent in this case. I have carefully perused Subsection 3 of Section 43. The provision therein contained applies to events that would follow in case a pre-action notice is served (as required in Subsection 2) but the 1st Respondent does not respond within the 30 days period of notice provided. Subsection 3 clearly does not apply to the instant case as the Appellant did not even comply with Subsection 2 by serving a pre-action notice in the first place.
Arguments proffered by the Appellant in respect of the application of Subsection 3 is hereby discountenanced.
The Appellant has also contended that the requirement of pre-action notice under Subsection 2 of Section 43 would also not apply because the action herein involves a simple contract i.e. terms of settlement. I do not agree.
First of all, it is not in dispute that apart from the terms of settlement between the Appellant and the 1st Respondent, judgment was nevertheless entered by the Court in favour of the 1st Respondent against the Appellant in a Suit No. FHC/L/CS/63/2013. Such a judgment debt is clearly outside the purview of terms of settlement. The judgment debt is enforceable by the 1st Respondent against the Appellant without the consent of the Appellant.
Moreover, I have stated earlier that the 1st Respondent has part of its functions and powers as realizing eligible bank assets acquired by it. Any Court action against such function or power, as the Appellant’s instant case is apparently about, must comply with the requirement of pre-action notice. Furthermore, the Appellant’s chief complaint in this suit is that the Appellant has obligation to exercise its power of accepting guarantees. It seeks reliefs to compel the 1st Respondent to accept a guarantee. Whichever way one looks at it, the Appellant’s grouse in this suit stems from the functions and powers of the 1st Respondent under the AMCON Act 2010. It is not just about a simple contract. Section 43(2) which requires the Appellant to serve pre-action notice on the 1st Respondent does apply to the suit.
The Appellant did not comply with the law by not serving pre-action notice on the 1st Respondent before instituting its suit against the 1st Respondent at the lower Court. The result is that the lower Court lacked the necessary jurisdiction to entertain the Appellant’s suit and same was rightly struck out for failure to comply with conditions precedent. See ETI-OSA LOCAL GOVT. V. JEGEDE (SUPRA).

In view of the foregoing position, Issue No. 3 is hereby resolved against the Appellant and in favour of the 1st and 3rd Respondents.

RESOLUTION OF ISSUE NO. 4:
“Whether the learned trial judge was right when he held that the Appellant had no locus standi to maintain this action without the consent of the Receiver/Manager (3rd Respondent)? (Distilled from GROUND 2).”

Locus standi is the legal capacity, based upon sufficient interest in the subject-matter, to institute proceedings in a Court of law to pursue a certain cause. The law is that where a person institutes an action to claim a relief, which on the facts of the case is enforceable by another person, then the former cannot succeed because of lack of locus standi. See collectively the cases of ADENUGA V. ODUMERU (2002) 8 NWLR PT. 821 P. 163; BEWAJI V. OBASANJO (2008) 9 NWLR PT. 1093 P. 540 and AYORINDE V. KUFORIJI (2007) 4 NWLR PT. 1024 P. 341.

Issue No. 4 herein relates particularly to the status of the 3rd Respondent as a Receiver vis-a-vis the Appellant in the instant appeal. The Appellant has urged this Court to discountenance any issue of receivership status of the Appellant as it has been erroneously canvassed by the 1st and 3rd Respondents at the lower Court particularly as there is no reference to the receivership of the Appellant in the terms of settlement between parties.

Now by virtue of Section 48 of the AMCON Act 2010, the 1st Respondent has power to appoint a Receiver for a debtor company such as the Appellant, and such appointment shall be lawful. – see the case of AFRIJET AIRLINES LTD V. ELIAS & ANOR (2019) LPELR-47327(CA).
By virtue of provisions of the Companies and Allied Matters Act, a deed of appointment of a Receiver is registrable with the Corporate Affairs Commission. See Sections 396 and 398. See also the case of LAWSON & ORS V. POLFA (NIG) PLC & ORS (2019) LPELR-48931(CA).

I have taken a calm look at the affidavit evidence of parties before the lower Court. The fact was alleged by the 1st and 3rd Respondents that the 1st Respondent appointed the 3rd Respondent as Receiver/Manager of the Appellant-company in respect of the charge created in favour of the 1st Respondent. That the deed of appointment appointing the 3rd Respondent was duly registered with the Corporate Affairs Commission. Copies of the deed of the 3rd Respondent’s appointment as Receiver/Manager and Certificate of Registration of same with the Corporate Affairs Commission were attached to the 1st and 3rd Respondents’ processes. It would appear therefore that the requirement for appointing the 3rd Respondent as the Receiver/Manager of the Appellant has been complied with.

The Appellant’s position however is that it is not in receivership as there is no evidence of such before the lower Court. The Appellant is apparently in a state of denial. It is clear (but maybe not to the Appellant because of her state of denial) that the Appellant is in receivership with the 3rd Respondent as the Receiver/Manager. Based on the affidavit and documentary evidence before it, the lower Court was correct to have reached this conclusion.

From all indications, the process for the appointment of the 3rd Respondent as Receiver/Manager over the Appellant has been carried out. There is nothing to show that the Appellant had subsequently obtained an order of Court setting aside the appointment of the 3rd Respondent or had even challenged the 3rd Respondent’s appointment in a Court of law.

I have carefully perused the Appellant’s originating summons and the reliefs sought by it at the lower Court. The Appellant did not exactly challenge the 3rd Respondent’s appointment as receiver in that suit. The Appellant’s grouse at the lower Court was chiefly the refusal of the 1st Respondent to accept the alleged guarantee from the 2nd Respondent to pay off the Appellant’s debt. There was no relief sought to set aside the appointment of the 3rd Respondent as receiver and deny him recognition as such.

In its affidavits in support of the originating summons, the Appellant alleged in passing remarks that the 3rd Respondent was appointed receiver over it with forged documents.

The position of the law is that whenever an allegation of fraud or forgery is made by a party, it must be made distinctly, expressly and it must be proved. It must not be alleged in the air. It must be specifically pleaded with adequate particulars supplied and given. Such a party must prove the criminal allegation beyond reasonable doubt. Such proof must be one that extends to the realm of probability and excludes fantastic possibility. It must not have room for speculation or create doubt. See GEORGE V. DOMINION FLOUR MILLS LTD. (1963) 1 ALL NLR 71; (1963) 1 & 2 SCNLR 117; AINA V. JINADU (1992) 4 NWLR PT. 233 P. 94 and LAPADE V. CARRIBEAN FINANCE LTD (2008) VOL. 44 WRN 115.
A mere loaded vague and nebulous averment is not enough for the purposes of pleading the crime of forgery. See ADEDEJI & ANOR V. CFAO (NIG) PLC (2014) LPELR-22309(CA).
see also KAREEM V. UBN LTD. & ANOR (1996) LPELR-1665(SC) where the Supreme Court held per Mohammed JSC:
“Forgery being a criminal offence must be specifically pleaded and proved before a trial Court can act on its allegation.”
As it is, the Appellant’s passing allegation of forgery is not sufficient to rebut the presumption of law that the appointment of the 3rd Respondent as receiver over the Appellant is regular. See the case of LAWSON & ORS V. POLFA (NIG) PLC & ORS (SUPRA).

The 3rd Respondent cannot, therefore, run away from the fact that until the appointment of the 3rd Respondent is set aside for whatever reason by a competent Court of law, the 3rd Respondent is officially its receiver and his status as such must be recognized by the lower Court. The lower Court was therefore right to have relied on the affidavit evidence of the 1st and 3rd Respondents to find and recognize the 3rd Respondent as the receiver over the Appellant.

On the status of a receiver appointed under the AMCON Act 2010, this Court held that such a receiver automatically qualifies as a Receiver/Manager statutorily empowered to take possession of, and protect the property under his receivership, to receive rents and profits, and to discharge all outgoings and realise the security for the benefit of those on whose behalf he is appointed. Such powers are not restricted to disposing of the debtor company’s assets in order to realise the debt, but also extend to the management of the affairs of the company and running the business effectively until the full outstanding sum of the creditor is recovered. See the case of AFRIJET AIRLINES LTD V. ELIAS & ANOR (2019) LPELR-47327(CA).
The consequence of the appointment of a receiver is to paralyse the powers of the owners from dealing with it although the company does not forfeit its legal personality nor are the goods vested in the receiver on appointment. See SOLAR ENERGY ADVANCED POWER SYSTEM LTD V. OGUNNAIKE & ANOR (2008) LPELR-8470(CA).
Thus, after a receiver has been appointed, the proper person to sue in the name of a company is the receiver. See the case of NIDB LTD V. ELDERSON (NIG) LTD (2018) LPELR-46439(CA).
This Court has also held per Pemu JCA in the case of FREDRIKOV PETROLEUM SERVICES COMPANY LTD V. FBN PLC & ANOR (2014) LPELR -22538(CA) as follows:
“The 2nd Respondent, being the Receiver/manager and a fortiori, the alter-ego of the Appellant, the Appellant, or any other person cannot bring an action in the name of the Appellant without the consent and approval of the Receiver Manager. Any action can only be at the conclusion of the receivership which is when he ceases to be the alter-ego of the Appellant. No Company has any locus standi to sue where it has already entered receivership. It is the Receiver/Manager, who, by operation of law, should sue on behalf of the Company. Indeed the powers of the Directors of the Company became paralyzed because of the appointment of the Receiver/Manager. The Assets of the Company remain with the Receiver/Manager and he alone has the right to deal with these assets as long as he remains the Receiver Manager. The rights to deal with the assets inherent in the receivership can only be revived at the end and/or termination of the Receivership.”

There can be no gainsaying that the Appellant temporarily lost the locus standi to commence an action in a Court of law upon the appointment of the 3rd Respondent as Receiver/Manager over its affairs until the 3rd Respondent’s function as Receiver/Manager has been discharged.
There is nothing to show that the instant suit was commenced by the Appellant in its corporate name at the lower Court with the consent of the 3rd Respondent. The Appellant lacked the locus standi to institute the instant suit and same is therefore incompetent.

The lower Court’s finding on this issue is therefore correct position of the law.

This issue No. 4 is also resolved against the Appellant and in favour of the 1st and 3rd Respondents.

CONCLUSION:
Having resolved all the issues in the main appeal against the Appellant, it follows that the instant appeal is without any merit. It is hereby dismissed.

The decision of the lower Court striking out the Appellant’s suit No. FHC/ABJ/CS/933/2015 is hereby affirmed.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read in draft form, the judgment just delivered by my learned brother, Danlami Zama Senchi, JCA. My learned brother has advanced elaborate reasons for resolving all the issues against the appellant.

I agree with the reasoning of my learned brother and, for those reasons, I also dismiss this appeal.

I abide by all the consequential orders made in the leading judgment.

KENNETH IKECHUKWU AMADI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, DANLAMI ZAMA SENCHI, JCA. I agree with the reasons given therein and the conclusion reached. I too dismiss this appeal for lacking in merit.

Appearances:

Chief Nelson O. Imoh, with him, Collins Marshal. For Appellant(s)

G. C. Duru, with him, O. T. Ogunba – for 1st and 3rd Respondents

O. M. Atibioke, with him, Adeoluwa Inioluwa – for 2nd Respondent. For Respondent(s)