JUMBO v. AMCON & ORS (2020)

JUMBO v. AMCON & ORS

(2020)LCN/14278(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Tuesday, June 23, 2020

CA/PH/244/2019

Before Our Lordships:

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

ELDER HENDERSON ENYINNA SOMIARI JUMBO APPELANT(S)

And

ASSET MANAGEMENT CORPORATION OF NIGERIA 2. C AND I NIGERIA LIMITED (IN RECEIVERSHIP) 3. LESI ADEDIPE (RECEIVER C AND I NIGERIA) LIMITED RESPONDENT(S)

RATIO

THE NATURE OF AN ORIGINATING SUMMONS

The provision of OR. 3 Rule ante was interpreted in the case ofFamfa Oil Ltd V. Attorney General of Federation (2003) 18 NWLR (Pt. 852) 453 at 467 paras D – F. The Court held:
“The very nature of an originating summons is to make things simpler for hearing. It is available to any person claiming interest under a Deed, will or other written instrument whereby he will apply by originating summons for the determination of any question of construction arising under the instrument for a declaration of his interest. It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to facts but what the plaintiff is claiming is a declaration of his rights…” See on this, Jev & Anor V. Iyortyom & Ors (2014) LPELR – 23000 (SC), Keyamo V. House of Assembly Lagos State (2002) LPELR – 1689 (SC), National Bank of Nigeria Ltd V. Alakija & Anor (1978) LPELR – 1949 (SC), Sani V. Kogi State House of Assembly & Ors (2019) LPELR – 46404 (SC). PER ABUNDAGA, J.C.A.

WHETHER OR NOT IT IS THE COUNTER AFFIDAVIT FILED IN IN OPPOSITION TO THE ORIGINATING SUMMONS THAT DETERMINES IF THE FACTS ARE IN DISPUTE

As rightly submitted by appellant’s counsel, in an originating summons proceedings, it is the counter affidavit filed in opposition to the originating summons that will determine if the facts are in dispute or conflict such that the matter cannot be determined without oral evidence. See the case of Ogah V. Ikpeazu (2017) 17 NWLR (Pt 1594) P.335. PER ABUNDAGA, J.C.A.

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling and judgment of the Federal High Court, holden at Port-Harcourt, delivered on 15/10/2018 by Hon. Justice I.M. Sani in suit No: FHC/PH/CS/45/2018.

In brief, the ruling and judgment is predicated upon an originating summons, dated and filed on 3rd April, 2018 in which the Respondents sought the determination of two questions arising from the construction of the deed of Tripartite Legal Mortgage dated 24th May, 2000 and registered as No. 37 at pages 37 in Volume 267 of the Land Registry, Port-Harcourt between the Appellant, the 1st Respondent and the 2nd respondent. Upon the affirmative determination of the questions the Respondents prayed for 8 reliefs which are declaratory injunctive and directive.

The originating summons is supported by an affidavit of 24 paragraphs deposed to by one Georgelina Edoka. Also filed on behalf of the 1st Respondent is a further affidavit deposed to by Georgelina Edoka to which is annexed Exhibits AMCON 1, AMCON 2 and AMCON 3. Exhibit “AMCON 1” is a copy of the perfected deed of Tripartite Legal Mortgage in

respect of the property, the subject of this suit, Exhibit “AMCON 2” is a demand letter sent to the 2nd Respondent by 1st Respondent while Exhibit “AMCON 3” is a certified true copy of the deed of appointment of the 3rd Respondent as receiver.

The Respondents also filed a motion exparte on the same 3/4/18 pursuant to Section 49(f) of the Assets Management Corporation Act, 2010, Part iv Rules 41 and 42 of the AMCON Practice Direction, 2013, and other relevant Laws/Rules seeking for interim orders in respect of the subject property, one of which is that possession of the property be granted to the receiver pending the determination of the motion on notice for interlocutory injunction. In support of the motion exparte is an affidavit of 26 paragraphs deposed to by Georgelina Edoka. Further filed in support of the motion exparte is an affidavit of 8 paragraphs deposed to by Goergelina Edoka. Annexed to the further affidavit are Exhibits AMCON 1, AMCON 2 and AMCON 3 earlier annexed to the affidavit in support of the originating summons.

The exparte motion was heard and granted on 14th May, 2018.

In reaction to the originating

process and the interim order when served on him, the Appellant filed a motion on notice on 6/9/18 wherein he prayed for an order setting aside the interim orders of the Court made on 14/5/18. In support of the motion is an affidavit of 15 paragraphs deposed to by one Jacqueline Tamunomininim Eri – Victor. Further filed on 24/09/19 is a further affidavit of 15 paragraphs filed by the same Jacqueline Tamunomininim to which is annexed two Exhibits JUMBO 1 and JUMBO 2. “JUMBO 1” is 2nd Respondent’s Memorandum and Articles of Association while “JUMBO 2” is Appellant’s solicitor’s petition to the Acting Chairman, Economic and Financial Crimes Commission (EFCC). The Respondents reacted to the Appellant’s motion to set aside the interim orders by filing a counter affidavit of 10 paragraphs. The Appellants filed a reply on points of law.

The Appellant reacted to the originating summons by filing a counter affidavit of 10 paragraph deposed to by Jacqueline Tamunomininim Eri-Victor. The Appellant also filed a further counter affidavit on 24/9/2018. To the further counter affidavit, Appellant annexed two

Exhibits, “JUMBO 1” and “JUMBO 2”. These are the same Exhibits annexed to the further affidavit in support of the Appellant’s motion praying for an order setting aside the interim orders that was made on 14/5/18. To this further counter affidavit the Respondents filed what it described as “plaintiff’s reply address to the Defendants’ counter affidavit to the originating summons”.

It is to be noted that the affidavits, counter affidavits, further affidavits and further counter affidavit were all accompanied with written addresses of the respective counsel of the parties.

All the processes filed, the lower Court in its wisdom, which I wholly approve, heard the motion of the Appellant to set aside the interim order and the originating summons together.

On 15/10/18, the Court delivered the ruling and judgment. The Appellant’s motion filed on 6/9/18 praying for an order to set aside the interim orders made on 14/5/18 was dismissed. And in regard to the Respondents’ originating summons, the questions posed for determination were answered in the affirmative, in consequence of which the

reliefs sought therein were granted.

Not satisfied with the ruling and judgment, the Appellant filed a notice of appeal on 18/01/2019. The Notice of appeal contains five (5) grounds including the omnibus ground of appeal which is the 5th ground. The four substantive grounds of appeal shorn of their particulars are as follows:
Ground One:
The Learned trial Judge erred in law in holding that the claimants’ suit was properly commenced by way of originating summons.
Ground Two:
The Learned trial Judge erred and misdirected himself in law when he held that claimants, through the attached exhibits particularly Exhibit AMCON 1, the Tripartite Legal Mortgage have proved that the defendant is connected with the indebtedness contained therein, having signed and executed same.
Ground Three:
The Learned trial Judge erred in law in dismissing the defendant’s application to set aside the interim orders obtained by the claimants via a motion exparte on 14/5/2018.
Ground Four:
The Learned trial Judge misdirected himself in law, when he held in his ruling/judgment that the defendant failed to place before the Court the

particulars of the fraud or to prove the allegation beyond reasonable doubt.

The record of appeal was transmitted on 7/5/19 and was deemed compiled and transmitted on 23/03/20.

The Appellant’s brief of argument, settled by D.O. Ezaga, SAN was filed on 23/09/19 and deemed properly filed and served on 23/03/20. The Respondents’ brief of argument settled by Patrick Osu, Esq., was filed on 10/02/20, and deemed properly filed on 23/03/20. The Appellant filed a reply brief on 23/03/20. The briefs of argument were adopted on 23/03/20.

Subsequent to the adoption of briefs, and precisely on 26/3/20, counsel were invited to address the Court on whether, in view of the provision of Section 20 of the Asset Management Corporation of Nigeria (Amendment No. 2) Act, 2019 by which Section 53 of Asset Management Corporation of Nigeria, Act, 2010 is amended by substituting a new Section 53 with Seven (7) subsections, this Court still has jurisdiction to hear and determine this appeal.

In his submission, D.O. Ezaga, the Learned Silk for contended that the Asset Management Corporation of Nigeria (Amendment, No. 2) Act, 2019 (hereinafter to be

referred to as the “AMCON Amendment Act, 2019”) cannot apply to this appeal because this appeal was in 2018, and that there is nowhere in the AMCON Amendment Act, 2019 that makes its provision to apply retrospectively counsel refers to the case of Rossek V. ACB Ltd (1993) 8 NWLR (Pt312) 382 at page 441.

Mr. A. Akinyanju who appeared for the Respondents submitted that the AMCON Amendment Act is intended to have retrospective application and refers to Sections 53 (3) and 39 (c) of AMCON Act, 2010 (as amended). Counsel relies on the case of Orthopadaedic Hospital Management Board V. Mal. Umaru Gobas & Ors (2002) 14 NWLR (Pt. 788) 338, SPDC V Isaiah (2001) 11 NWLR (Pt. 723) 168 at 179 paras G – H, 180 paras D – E. It is further submitted that this appeal falls within the limitation status as defined by the Supreme Court in the case of Texaco (Nig) Ltd V. Parama FWLR (Pt 96) P. 579.

In reply on points of law, the Learned Silk submitted that Section 53 (3) of the AMCON Amendment Act applies to the High Court, whereas Sections 53 (5) and 53 (6) applies to the Court of Appeal and Supreme Court respectively. He submits that

retrospectivity of an Act cannot be presumed. He further submits that what commences an appeal is the Notice of Appeal. Counsel further refers to the case Ogboru V. Uduaghan (2011) 17 NWLR (Pt. 1277) 727 – 756.

In the Appellant’s brief of argument, two issues are formulated for the determination of the Court. The two issues are:
(I) Whether the interim order and originating summons are not incompetent and liable to be set aside.
(II) Whether the Respondents proved their case to be entitled to judgment against the appellant.

Arguing issue one, the Appellant’s counsel submits that both the exparte interim order and the originating summons are incompetent.

It is submitted that there was no urgency disclosed in the affidavit upon which the interim order was granted. The reason, counsel submits that paragraph 12 of the affidavit in support of the exparte motion shows clearly that the document of title was with the Respondents, and so there was no threat or fear of selling the property.

It is submitted that while much of the prayer was sought pending interlocutory injunction the order was granted to last till the end of

the case when there was no interlocutory application pending before the Court. It is thus submitted that the order was made contrary to the prayers sought for in the motion exparte. It is further contended that the Court lacked the jurisdiction to grant an interim order exparte without an interlocutory application in terms not asked for and to last till the hearing of the substantive suit.

To aid his argument, counsel relies on OR. 26 Rule 7 (3), Rule 8, and OR. 28, Rule 2 of the Rules of the Federal High Court, 2009 and the following cases: – Kotoye V. CBN (1989) 1 NWLR (Pt. 98) 419 at 422 – 423, UNIBIZ (Nig) Ltd V. C.B.C.L. Ltd (2003) 6 NWLR (Pt. 816) 402 at 433.

Counsel further points out that the originating summons was filed on 3/4/18 while the exparte application was granted well over one month later, that is on 14/5/18, hence his argument that there was no urgency. Further relied on is the case of LEEDO Prudential Hotel V. Bank of the North (1987) 7 SCNJ 23.

In regard to the issue of the process by which the suit was commenced, that is, the originating summons, it is submitted for the Appellant the incompetency is revealed in the

salient denials, contention of facts and hostility of the proceedings.

Counsel submits that on the face of the documents, it may appear that the Appellant signed but that he denied signing those signatures and went ahead to state that he was neither a director of 2nd Respondent nor did he guarantee any loan embedded in the tripartite agreement. That these facts clearly revealed a defence of non est factum. It is submitted that the appellant went further to explain the circumstances that led to his certificate of occupancy being in the picture. That though the Appellant did not deny interacting with the then citizen bank but seriously disputed what transpired in paragraph 4 (viii) of his counter affidavit at page 121 of the record of appeal. That nowhere were these salient facts denied by the Respondents. It is submitted that the appellant has thrown up heavily controversial and hostile facts supporting his denial which ought to have been verified by a full trial. It is submitted that the Appellant’s averments clearly showed fraud and collusion between Sami Charles who apparently sourced the loan as a director to 2nd Respondent and bank officials who

perfected the transaction. Counsel submits that though fraud was not specifically pleaded as required by Order 13 Rule 5 of FHC … Pro Rules, the equitable defence and particulars are embedded in facts pleaded in the entire paragraph 4 of the Appellant’s counter affidavit. And this in counsel’s submission is sufficient defence of fraud and relies on the case of Adebanjo V. Brown (1990) 3 NWLR (Pt 141) 661 at 667 – 668, Ibenwelu V. Lawal (1971) 1 All NLR of 23, Abisi V. Ekwealor (1993) 6 NWLR (Pt. 302) 643 and FCMB V. Benbor (2014) LPELR – 23505.

Counsel further submits that it is therefore defective to proceed to determine this matter with an originating summons. Cited in support of this position are Conoil PLC V. I.T.F. (2015) 9 NWLR Pt (1464) 399, SCSC V. The Council of O.A.U Ile-Ife (2011) 14 NWLR (Pt 1269) 193, and Sani V. K.S.H.A. (2019) 4 NWLR (Pt 1661) 172 at 184.

On issue two, it is submitted that there was no iota of proof in the face of the denials. It is submitted that the Appellant denied signing the tripartite legal mortgage and therefore not exparte to the loan vide paragraph 4 of the counter affidavit. That at

that stage, it was the duty of the Respondents to disprove these allegations. That even though Section 128 (I) of the Evidence Act provides that no oral evidence could be given to vary a document, S. 128 (I)(a) of the same Act created an exception in the case of fraud, intimidation, illegality, want of execution etc., it is submitted that this is so because by S. 136 of the Evidence Act, the onus of proof shifts from time to time. Counsel faults the lower Court’s judgment which is based on its belief that the deed of legal mortgage was executed by the Appellant without considering his defence. Counsel refers us to pages 120 – 123 of the record of Appeal. It is contended that to disprove the claims of the Appellant that he was not part of the transaction and that he indeed signed his signatures, the parties ought to have been called and subjected to cross examination. That at least a handwriting expert could have been called to prove the appellant’s signature. It is therefore submitted that anything short of this could only lead to miscarriage of justice. Counsel thus submits that the evidence before the Court was not properly evaluated to

determine the proof by Respondents before liability was shifted on Appellant. Counsel relies on Ojagbunne V. Numbia (1972) 1 All NLR (Pt. 2) 226 at 232, Sagay V. Sajere (2006) 6 NWLR (Pt. 661) 360 at 370. It is further submitted that the method adopted by the Court in holding the Appellant liable by affidavit of the Respondents who were silent on the denials of the Appellant is clearly against the norms of justice as required by Section 99 of the Evidence Act, 2011.

It is contended that the Respondents ought to have proved that the Appellant was a party to the Deed of Tripartite Legal Mortgage by virtue of Section 93 (1) of the Evidence Act, 2011, and that in the absence of proof the Appellant could not be held liable, and accordingly the Respondents’ case ought to have been dismissed.

The Respondents formulated three issues for determination, thus:
(I) Whether the lower Court was right to have granted the interim order dated 14th May, 2018.
(II) Whether pursuant to the Deed of Tripartite Legal Mortgage the Respondents were right to have commenced the proceedings by an originating summons procedure.
(III) Whether the lower Court

relying on the Deed of Tripartite Legal Mortgage was right to have held that the Respondents placed sufficient materials before the lower Court to necessitate the lower Court to grant the reliefs sought in the originating summons.

On issue one, it is submitted for the Respondents that by virtue of Sections 49 and 50 of the AMCON Act, 2010 (which equivalent are in Sections 49 and 50 of the AMCON Act, 2010) the Court is empowered to grant an exparte application to last until the hearing and determination of the case in order to preserve the res (money or assets) from dissipation or disappearance from the jurisdiction of the Court. Reliance is placed on the case ofAmerica Specification Antus Limited V. AMCON (2017) LPELR – 44016 (CA). It is submitted that while the Federal High Court (Civil Procedure) Rules, 2019 that interim order shall not outlive the hearing of a motion on notice AMCON Act provides specifically that the life span of an interim order will last until the final determination of the suit. Respondents’ counsel submits that where there is a general legislation and specific legislation, the specific legislation shall prevail, and

that between a general legislation like the rules of Court and specific legislation in a substantive law, the latter prevails. It is therefore submitted that the provision of Section 49 AMCON Act on interim order takes precedent over the Federal High Court (Civil Procedure) Rules, 2019. It is further submitted that the Appellant’s contention that the interim order granted by the lower Court has a life-span would have been valid if the Respondents failed to commence the proceedings within 14 days of obtaining the order in accordance with Section 49 (3) of the AMCON Act, which is not the case here as the proceedings was commenced on 3/3/18.

It is further submitted that Section 49 of the AMCON Act does not contemplate real urgency, rather, all that it requires is that the Respondents must show that they have reasonable cause to believe that the Appellant is the bonafide owner of the property which is the asset in this case. That the Respondents satisfied the provision of Section 49 of AMCON Act to merit the grant of the interim order.

Counsel faults the Appellant’s argument relating to the delay in granting the interim order. Counsel sees

the delay as procedural irregularity on the part of the Court on this counsel relies on the case of Sande V. Abdullahi (1989) 4 NWLR (Pt 116) 387 SC.
We are urged to affirm the lower Court’s ruling on the interim order.

In regard to issue two, it is submitted that the Learned trial Judges view that the Respondents’ case was for the construction and determination of their interest in the Tripartite Deed of Legal Mortgage and that the suit was rightly commenced by originating summons is a timeless principle of law, that where the issue in a suit involves the construction of a statutory enactment, or the interpretation of a document or agreement or some questions of pure law where there is unlikely to be any substantial dispute on issues of facts between the parties in a proceeding an applicant must commence the proceedings by adopting the originating summons procedure. He relies on the case of Famfa Oil Ltd V. AG, Federation (2003) 18 NWLR (Pt 852) 453 at 467 paras D – F, Order 3 Rule 6 of the Federal High Court (Civil Procedure) Rules, 2009. Counsel also relies on Inakoju V. Adeleke (2007) 4 NWLR (Pt 1025) 423 at 571 – Par. H,

572 Para A. Counsel submits that the facts in the instant appeal are not hostile and does not require parole evidence. It is submitted that the facts in this appeal are on all fours with those in Fasheun Motors Ltd V. UBA Limited (2000) 1 NWLR (Pt 640) 190.Respondents’ counsel rejects the Appellant’s contention that the lower Court should have considered the deposition in the Appellant’s counter affidavit, dated 6/9/18, and submits that it is a misunderstanding of the law, and states that it is the Respondents’ originating summons and affidavit evidence that determines the jurisdiction of the Court and not the Appellant’s counter affidavit. We are referred to the case of Oguebego V. P.D.P. (2016) 4 NWLR (Pt. 1503) 446. Counsel also relied on the case of Conoil PLC V. ITF Governing Council (2015) 9 NWLR (Pt. 1464) 399 for contending that it is not the filing of a counter affidavit to oppose claims in an originating summons that makes such proceedings contentions or hostile thereby requiring a conversion to a writ of summons procedure. That the nature of the claim and facts deposed to in the affidavit evidence in support of

the only originating summons are the only processes that the Court will consider to decipher if the issues comprised in the proceedings are suitable for an originating summons procedure as in this appeal. Cited is the case of PDP V. Timipre Sylva (2012) LPELR – 7814 (SC); (2012 13 NWLR (Pt 1316) 85 at 127 D – E. It is submitted that the hostility complained of by the Appellant are not issues that the Respondents could have taken up at the lower Court because they are not parties to the fraud alleged or the purported non est factum. It is also contended that the lower Court was right in holding that the Appellant did not place a shred of evidence or particulars of fraud before it. Counsel went to point out that the Appellant’s name and signature is on the Deed of Tripartite Legal Mortgage and views the Appellant’s denial of signing the signature as a bootstrap and self-serving.

We are urged in the above premise to resolve this issue in favour of the Respondents.

On issue three, it is submitted that the lower Court was right in granting the reliefs in favour of the Respondents. The arguments proffered in this issue are

substantially or those proffered on issue two. The synopsis of the arguments is that the action was competently commenced vide originating summons procedure. That the Deed of Tripartite Legal Mortgage shows that the Appellant guaranteed the loan facility advanced to the 2nd Respondent which was secured by the said deed. That the deed has the name and signature of the Appellant on the execution page of the said deed.

It is further submitted that neither the lower Court nor this Court has a duty to act on any document substantiating the allegation of fraud or illegality which the Appellant failed to tender. This Court is urged to discountenance the Appellant’s contention that the lower Court should have considered the non – particularized and unproven allegations of fraud and illegality as contained in paragraph 4 of the Appellant’s counter affidavit.

It is further submitted that the Appellant is referred to in the Deed of Tripartite Legal Mortgage as the Mortgagor whose duty it is to apply for consent to conclude the process of registering the mortgage. That in this case the Appellant applied for and obtained the Governor’s

consent for the executed Deed of Tripartite Legal Mortgage. That the Respondents are therefore right to have proceeded against the Appellant. Counsel further submits that the Deed has compiled with all the conditions for the validity of an agreement as prescribed by the statutes of Fraud 1677, and therefore its provisions are binding on, and enforceable against the Appellant. He submits that the Appellant’s deposition that the Deed was fraudulently procured is in the form of extrinsic evidence which the Court has deprecated in a plethora of cases; and cited for instance the case of A.I.B. Ltd V. Lee & Tee Industries Ltd (2003) 7 NWLR (Pt819) 366. In regard to the contention of the Appellant’s that there is conflict in the evidence which should have made the lower Court to call for oral evidence, it is submitted for the Respondents that it is not every conflict in an affidavit that requires oral evidence. That the Court can resolve any perceived conflict by resorting to the available documentary evidence where the said conflict does not touch on the material matter before the Court, and that in such circumstances the Court is entitled to

dispense with the need to call oral evidence. The case of Okada Airlines Ltd V. F.A.A.N (2015) 1 NWLR (Pt 1439) at 22 paras A – B, LSPDC V. Adold Stamm International (Nig) Ltd (1994) 7 NWLR (Pt. 358) 545 at 560 Paras B – D, 561 – Para A. Also referred to is the case of Magnusson V. Koiti (1991) 4 NWLR (Pt. 183) 119 at 129 Paras D – E. Counsel submits that the allegation of fraud made by the Appellant is immaterial and frivolous. It is therefore submitted that the lower Court properly evaluated the available evidence (which counsel points out are Exhibit “AMCON 1”, Exhibit “AMCON 2” and Exhibit “AMCON 3” before ascribing probative value to it, and in such circumstances this Court should not disturb the findings of the lower Court. It is therefore submitted that the authorities cited by the Appellant were cited out of context. Counsel refers the Court to the case of Adegoke Motors Ltd V. Adesanya (1989) 3 NWLR (Pt 109) 250 at 265.

The Court is urged to resolve this issue in favour of the Respondents, and on the whole to dismiss the appeal and affirm the decision of the lower Court.

In the reply

brief, it is contended for the Appellant that there is no provision in the AMCON Act, 2010 that empowers the Court to grant an exparte order to last until the hearing and determination of the substantive suit. Counsel relies on Sections 49 and 50 of the AMCON Act, 2010. That Section 49 (3) of the AMCON (Amendment) Act, 2019 cannot apply retrospectively, and relied on the case of Ogboru V. Uduagban (2012) All FWLR (Pt 610) 1206 at 1236 paras C – D. Counsel insists that “urgency” remains the hall mark of the decision whether or not to grant an exparte order. Counsel relies on the case of Tanzilla Petroleum C. Ltd V. AMCON (2015) LPELR – 40909 at pages 23 – 29.

In response to the argument of Respondents’ counsel that it is only the originating summons and the affidavit in its support that determines jurisdiction, appellant’s counsel submits that it is not the correct statement of the law, and states that the case of Ogbuebego V. PDP (supra) relied on by Respondents’ counsel was quoted out of context. He submits that in an action commenced by originating summons, it is the counter affidavit in opposition that

determines whether the facts are in conflict, and hostile. He places reliance on the case of Ogah V. Ikpeazu (2017) 17 NWLR (Pt 1594) 299 at page 335 paras C – E ratio 2. Also relied on is the case of NUC V. Lornem (2018) 12 NWLR (Pt 1633) 261 at 290 – 292 paras F – E. It is further submitted that in an originating summons affidavit takes the place of pleading, and that the counter affidavit serves as a statement of defence.

It is further submitted that the cases cited by the Respondents’ did not involve allegation of forgery of signature. That the cases only dealt with construction of documents on which there is no disagreement. That those cases and thus distinguishable and inapplicable in the instant appeal.

Contrary to the Respondents’ counsel’s argument, appellant’s counsel submits that there are exceptions to the general rule that parole evidence cannot be allowed to contradict the contents of a document. Counsel submits that an allegation of fraud is one of those exceptions.

In support he cited the case of Arige V. Arige (2018) 16 NWLR (Pt 1644) 67 at 89 and the case of Ibrahim V. Abdallah (2019)

17 NWLR (Pt 1701) 293.

The argument of counsel in this appeal have given rise to the following issues which call for the determination of the Court:
1. Whether this Court still has the jurisdiction to determine this matter in view of the Asset Management Corporation of Nigeria (Amendment No. 2) Act, 2019.
2. Whether the lower Court was right in granting the interim orders on 14/5/2018, and refusing to set same aside.
3. Whether the matter was competently commenced and determined by originating summons.
4. Whether the Respondents proved their case to be entitled to judgment.

RESOLUTION OF THE ISSUES
Issue One:
The decision of this Court to invite counsel to address it on its competence/jurisdiction to determine this matter is informed by the view widely held that the Asset Management Corporation of Nigeria (Amendment No. 2) Act, 2019 has limited the time frame for the determination of matters filed under the Asset Management Corporation of Nigeria, (hereinafter to be referred to as “AMCON”) Act, 2010. The argument of counsel revolve around the interpretation of Section 53 (3) and 53 (5) of the AMCON Act, 2010 (as amended)

The AMCON (Amendment No. 2) Act, 2019 came into force on 29th day of July, 2019. This Act in Section thereof amends amongst others 53 of the AMCON Act, 2010 by introducing Subsections (1), (2), (3), (4), (5), (6) and (7). By this amendment, Section 53 (3), (5) and (6) seeks to limit the time frame within which AMCON matters can be heard and determined. For ease of reference, I hereby reproduce the provisions of Section 53 (3) and (5) of the AMCON Act 2010 (as amended):
“53 (3). Each Court specially designated under Subsection (1) shall hear and determine within six months in the case of existing actions, from the date of the coming into effect of this section and in the case of new actions, within six months from the date of filing such new action.”
“53 (5). The Court of Appeal shall hear and determine all appeals from the Courts specially designated under Subsection (1) in an accelerated basis within 60 days, and in priority to all other appeals, and for this purpose, the President of the Court of Appeal shall issue or cause to be issued special Practice Direction for the Court of Appeal exclusively for the expedited

and accelerated hearing and determination of appeals emanating from the specially designated Courts.”
Section 53 (3) relates actions pending before the High Court before the commencement of the provision or new action filed after the commencement of the provision. The judgment on appeal was decided on 23/4/19, while the provision came into effect on 29/07/19, that is, more than 3 months before this provision commenced. Therefore, the provision does not in any affect the judgment on appeal, and hence the competence of the appeal. And it is clear that this issue is not contestable in this appeal as can be seen from the grounds of appeal.
The issue therefore revolves round Section 53 (5) of the AMCON Act, 2010 (as amended). Unlike Section 53 (3) of the Act which specifically mentions the application of the provision to pending actions before the provision came into effect and new actions filed after the commencement of the provision,Section 53 (5) is silent about appeals that were filed and pending before the commencement of the provision. It simply refers to “…all appeals emanating from the Courts specially designated under

Subsection (1) on an accelerated bases within days…” The reasonable inference to draw from the wordings is that the provision applies to appeals emanating from the lower Court after commencement of the provision.
To apply the provision to appeals pending before commencement of the provision is to read into it what the draftsman did not include or intend to include. It has been contended for the Respondents that the AMCON (Amendment No. 2) Act, 2019 is a procedural law, and that the rule against the construction of a law retrospectively does not apply to it, thus the provision should be applied retrospectively. On the other hand, the Appellants contended that the provision is not a procedure law but a substantial law, and that a law cannot be applied retrospectively unless it is expressly stated in that law.
The explanatory memorandum to the Act reads:
“This Act amends the Asset Management Corporation of Nigeria Act, No. 4, 2010 to give the Corporation additional junctions and increase the members of the Board.”
It is clear from the explanatory note that the Act is not intended to supplant the AMCON Practice

Direction, 2013, which is the Procedure law that regulates, the filing hearing and determination of AMCON related matters. The AMCON (Amendment No. 2) Act, 2019 is clearly a substantive law. The provision of Section 53 (3), (5) and (6) is merely intended to expulse quick disposal of AMCON matters. It might be argued that being a substantive law, if it is the intention of the legislature is to apply it retrospectively, it would have been clearly stated so as done in Section 53 (3) for matters pending before the Federal High Court before the commencement of the Act, or new actions filed after the commencement of the Act, while this proposition is the general position of the law, it cannot apply in this case as it seeks to limit the time for the hearing and determination of AMCON matters against the spirit of Section 36 (1) of the 1999 Constitution of Nigeria (as amended) which does not stipulate any time frame within which the right of a citizen in any matter shall be heard and determined. The said Section 36 (1) provides:
“36 (1). In the determination of civil rights and obligations, including any question by or 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 and constituted in such manner as to secure its independence and impartiality.”
Though the AMCON (Amendment No. 2) Act, 2019 is an Act of the National Assembly, it is inferior to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which is the Grand Norm. The intention of the National Assembly is to limit the time frame for the hearing and determination of matters is good. However, to actualize that intention, it is on my humble view necessary to amend the Constitution to include that limitation. It is in view of the above not difficult to hold that this Court has the competence to determine this appeal. Issue one is therefore resolve in the Appellant’s favour.

Issue Two:
The Appellant’s counsel wants the interim orders voided for the following reasons:
(I) That there is no urgency since the title documents were already in possession of the Respondents.
(II) That the interim orders were granted at a time the action had already been filed against the provision of the AMCON Act which is to the

effect that such and interim order should be applied for and obtained prior to the filing of the claim.
(III) That being an exparte order, it should have been granted to last till the hearing and determination of a motion on notice. Rather it was irregularly granted to last till the hearing and determination of the originating summons.
On 23/4/18 when the originating summons in this matter was filed, a motion exparte was also filed. The motion exparte was moved on the said 23/4/18 but was refused because contrary to the prayers in the motion exparte that the interim orders be granted pending the hearing of the motion on notice, no such motion on notice was filed. See page 272 of the record of Appeal.
The Respondents decided on 10/5/18 to file another motion exparte for interim orders which were to last pending the hearing and determination of the originating summons. The said exparte motion was moved and granted on 14/5/18 pending the hearing and determination of the originating summons. See page 274 of the record of appeal.
The interim orders and the originating summons were served on the Appellant together. What this means is that even

though the originating summons (which contains the claims) were filed before the interim orders was granted, the originating summons was not brought to the attention of the appellant till after the grant of the interim orders.
Section 49 of the AMCON Act, 2010 under which the interim orders were granted provides:
“49 (1). Where the Corporation has reasonable cause to believe that a debtor company is the bonafide owner of any moveable or immoveable property, it may apply to the Court by motion exparte for an order granting possession of the property to the Corporation.
(2) The Corporation shall serve a certified true copy of the order of the Court issued pursuant to Subsection (1) of this section on the Debtor or Debtor Company.
(3) The Corporation shall commence debt recovery action against the Debtor or Debtor Company in respect of whose property an order subsists pursuant to Subsection (1) of this section within 14 days from the date of the order, failing which the order shall lapse.”
The AMCON Practice Directions, 2013 makes further provision on interim orders made by the Court.
Part IV Rule 4 (1) provides:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“The claimant may file any application before the claim form is filed or served.”
Rule 4 (2) provides:
“Nothing in this direction precludes any party from filing an application at the same time as or after it files its claim.”
Rule 4.2 provides:
“The claimant may apply without notice for interim reliefs as follows:
(I) An interim possession order under Section 49 of the Act.
(II) An account freezing order under Section 50 of the Act or other interim remedy under part 13 of this Practice Direction.”
In his argument against the grant of the interim orders after the originating summons had been filed, Appellant’s counsel relied on the case of Tanzilla Petroleum C. Ltd V. AMCON (2015) LPELR – 40909. It was held on the issue whether it was proper to issue the exparte order four weeks after filing the substantive suit having regard to the provisions of Sections 49 and 50 of the AMCON Act that where the Corporation decides to seek for an order of possession, it must strictly comply with the provisions of the law. That the suit cannot be filed prior to obtaining the exparte order.

The views expressed in this case cited is distinguishable from the facts in the instant appeal. As I have noted even though the originating summons was filed simultaneously with the exparte motion which was subsequently rejected about a month after the originating summons was filed, the originating summons was not brought to the attention of the appellant before the exparte orders were served on the appellant. In addition, the Court in the case of Tanzilla Petroleum Co. Ltd V. AMCON (supra), it seems did not give serious attention to the provisions of part IV of the AMCON Practice Directions, 2013 which gives AMCON the option of filing an application for interim possession at the same time the claim is filed or even after it files and serves its claim.
To my mind, the interim orders granted on 14/5/18 is not illegal by reason of it being issued and served after the originating summons had been filed.
The interim orders are faulted on the grounds of it being issued to last till the final determination of the originating summons, and that there was no urgency shown. The wording of Section 49 (3) of the AMCON Act provides the only ground upon which an

exparte order granted under the Act can lapse is the failure of the Corporation to file its recovery action 14 days after obtaining the exparte order. The provision does not contemplate filing a motion on notice together with the exparte motion. This is a sui generis proceedings and cannot be treated like the ordinary and general civil causes. In relation to the appellant’s argument, that the Respondents did not show any urgency to warrant the grant of the interim orders, I like to state that Section 49 (I) of the AMCON Act provides the basis upon which a Court hearing an AMCON matter can make an exparte order. The basis is, if the Corporation has reasonable cause to believe that a debtor or dent or company is the bonafide owner of any moveable or immoveable property. In the instant appeal, the Appellant is not a debtor. However Exhibit “AMCON 1” annexed to the further affidavit in support of the exparte motion on its face shows that the Appellant as guarantor of the loan facility granted to the 2nd Respondent mortgaged his immoveable property vide a Deed of Tripartite Legal Mortgage which he allegedly signed. In the faultless submission of

the Respondents’ counsel in page 54, page 14 of his brief, relying on the case of FGN V. Interstella Communication Ltd (2015) 9 NWLR (Pt. 1463) 1 where a debt is guaranteed, the creditor has the right to proceed against the guarantor in the event that the debtor is unable to satisfy the debt owed. Thus, the guarantor steps into the shoes of the original debtor. In this instant appeal based in the process before the Court, the property belongs to the Appellant, and since he is equally shown on the face of Exhibit “AMCON 1” to be the guarantor, the Corporation is entitled to apply for interim possession of the property and the Court was right to have granted it.
The Appellant has no doubt shown by Exhibits “JUMBO 1” annexed to the further affidavit in support of his motion on notice for an order setting aside the interim orders that he is not a character in 2nd Respondent. However, as I have earlier noted Exhibit “AMCON 1” on its face shows that he is a guarantor of the loan and mortgaged his property as a collateral. That makes him liable, in so far as the interim orders are concerned.

The Appellant has strenuously denied that he did not sign the said Deed of Tripartite Legal Mortgage (Exhibit “AMCON 1”) and that this signature purporting to be his is not his. The originating summons calls for the construction of the Deed and the rights of the Corporation based on it.
Therefore, the defence of non est factum which Appellant’s averments amount to is a matter for the substantive matter. The law is settled that the Court should not at preliminary stage of a case delve into the substance of the case. See Ezeilo & Anor V. Ezeonu (2019) LPELR – 48336 (CA), Nwadike V. State (2015) LPELR – 24550 (CA).

In summary, I resolve issue two in favour of the Respondents.

Issues Three and Four:
Issues three and four are interrelated and will be considered together.

In the originating summons located at pages 1 – 5 of the record of appeal, the Respondents particularly the Respondent called for determination of its rights arising from the Deed of Tripartite Legal Mortgage allegedly executed between the 2nd Respondent and Appellant. The Deed of Tripartite Legal Mortgage is attached as “AMCON 1” to the

further affidavit in support of the originating summons. The Appellant filed a counter affidavit and subsequently filed a counter affidavit to which he annexed two Exhibits “JUMBO 1” and “JUMBO 2”.

In summary, the Appellant set up a defence of non est factum by which he deemed being a director in the 2nd Respondent’s company and signing the deed of tripartite legal mortgage. In other words, he denied guaranteeing the loan facility granted to the 2nd Respondent. It is on the basis of these denials that it is submitted for him that the originating summons by which the claim was commenced is incompetent, a submission hotly contested by the Respondents as captured in their brief of argument. In order to determine this issue, it is important to refer to and consider the provision of OR. 3 Rule of the Federal High Court (Civil Procedure) Rules, 2009 which provides:
“Any person claiming to be interested under a deed, will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the

persons interested.”
The provision of OR. 3 Rule ante was interpreted in the case ofFamfa Oil Ltd V. Attorney General of Federation (2003) 18 NWLR (Pt. 852) 453 at 467 paras D – F. The Court held:
“The very nature of an originating summons is to make things simpler for hearing. It is available to any person claiming interest under a Deed, will or other written instrument whereby he will apply by originating summons for the determination of any question of construction arising under the instrument for a declaration of his interest. It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to facts but what the plaintiff is claiming is a declaration of his rights…” See on this, Jev & Anor V. Iyortyom & Ors (2014) LPELR – 23000 (SC), Keyamo V. House of Assembly Lagos State (2002) LPELR – 1689 (SC), National Bank of Nigeria Ltd V. Alakija & Anor (1978) LPELR – 1949 (SC), Sani V. Kogi State House of Assembly & Ors (2019) LPELR – 46404 (SC).
Looking at the questions submitted to the Court by the Respondents for determination, the

reliefs sought, the affidavits in support and the Exhibits attached above one would think that all that they would do is the construction of the Deed of Tripartite Legal document on the premise that there would be no dispute on its due execution. But it turned out that the Appellant did not only dispute being a Director in the 2nd Respondent to which the loan facility was advanced, but also disputed guaranteeing the loan because he did not sign the said Deed. Before the lower Court, the appellant’s contended that parties were disagreements in the affidavit and submitted that the matter should be commenced by writ of summons. The lower Court glossed over the denial by the Appellant of having signed the Deed. The Court at page 353 of the record stated:
“As rightly pointed out by Learned Counsel for the plaintiffs, the plaintiffs case is for determination of their interest in the Tripartite Deed of Legal Mortgage executed by the defendant in favour of the 2nd plaintiff. The defendant from Exhibit “AMCON 1” executed the Deed of Mortgage and proceeded to obtain the Governor’s consent to mortgage.
The name of the Defendant is

written on the Deed of Tripartite Legal Mortgage as one of the three parties to the Deed. He appended his signature and as rightly submitted by Learned counsel for the plaintiffs, the statutory requirement as to signature is satisfied by my representation of the party’s name on the mortgage deed which clearly intends to authenticate the document as recording (SIC) his undertaking. See Evans V. Hoane (1892) 1 QB 593.”
This statement is not really clear. I must confess I fail to get it. But what is clear to me is that the trial judge did not do what is required to be done when there is a dispute as to whether a signature purporting to be of a particular person is denied. Section 93 (1) of the Evidence Act, 2011 provides:
“If a document is alleged to be signed or to have written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.”
The lower Court did not call for proof of the handwriting in the Deed of Tripartite Legal Mortgage to be that of the Appellant, and yet treated it as one that was

executed by him. Dismissing the need for proof, it is submitted by the Respondents counsel that oral evidence cannot be called to contradict the contents of a document. Counsel relies on Section 128 of the Evidence Act, 2011. He also relies on AIB Ltd V. Lee & Tee Industries Ltd (2003) 7 NWLR (Pt. 819) 366. However, there are exceptions. For instance, Section 128 (1) (a) of the Evidence Act provides exception where it is intended to prove fraud illegality etc, in relation to the said document. In the case of Arige V. Arige (2018) 16 NWLR (Pt. 1644) 67 at 89, it was held that:
“Oral evidence cannot be used to vary or contradict the contents of documentary evidence, except where fraud is pleaded.”
It is contended by the Respondents that the Appellant did not particularise the fraud alleged. He supposedly relies on OR. 13 Rule 6 (I) of the Federal High Court (Civil Procedure) Rules, 2009 which provides that a party shall plead specifically any matter (for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality) which if not specifically pleaded might take the opposite party by surprise.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The appellant did not leave the Court and the Respondents in doubt that he was not a director in the 2nd Respondent, that he did not sign the Deed of Tripartite Legal Mortgage, and that he was defrauded, and annexed a copy of the petition he wrote to the Acting Chairman Economic and Financial Crimes (EFCC) (Exhibit “JUMBO 2” attached to his counter affidavit. Therefore though the Appellant did not specifically plead fraud, the need is obviated by the fact that he stated all facts that would show clearly that his defence is predicated on the fact that his signature was forged on the Deed of Tripartite Legal Mortgage. See the case of Adebanjo V. Brown (1990) 3 NWLR (Pt. 141) 661 at 667 – 668.
What the Court was called to construct is the Deed of Tripartite Legal Mortgage in order to determine the Respondents’ right. The Appellants allegation that the signature on the Deed is not his but forged and that it was a case of fraud amounted to a serious conflict that made the proceedings hostile. In the case ofSani V. KSHA (2019) 4 NWLR (Pt. 1661) 172 at 184 the Court held:
“Originating summons should be used only where the

proceedings involves questions of law, rather than disputed facts, even where the facts are not in dispute, the originating summons should not be used if proceedings are hostile.” See also the case of N.U.C. V. Lornem (2018) 12 NWLR (Pt 1633) 261 at 290 – 292 paras F – E.
The lower Court should have in the light of the hostility in the affidavit evidence, converted the originating summons to a writ of summons and ordered for pleadings where evidence will be led to resolve the contentious issue of whether the signature in the Deed of Tripartite Legal Mortgage is that of the Appellant or, not and whether he could prove the fraud he alleged.
In response to the Appellant’s counter affidavit in which he made all the denials, and gave explanation, the Respondents filed a further affidavit and did not at all respond to any of the appellant’s allegations. All they did is to attach the Deed of Tripartite Legal Mortgage (Exhibit “AMCON 1”), the letter of demand sent by the Plaintiff (1st Respondent) to the Managing Director of 2nd Plaintiff (2nd Respondent) (“AMCON 2”), and certified true copy of Deed of

Appointment of 3rd defendant (3rd Respondent) as receiver (“AMCON 3”). See pages 73 – 108 of the record.
In an action commenced by originating summons affidavit takes the place of pleadings. The counter affidavit therefore serves as statement of defence. Therefore every material averment in any affidavit filed in respect an originating summons must be specifically denied by the adverse party, otherwise the averment would stand unchallenged and be deemed admitted: Owuru V. Adigwu (2018) 1 NWLR (Pt 1599) 1 at 27. In the circumstance, the justice of the case demanded that pleadings be ordered so that all contentious issues can be resolved. Rather, without a finding on the Appellant’s denial of the signature on the Deed of Tripartite Legal Mortgage, the Court went ahead to give judgment in favour of the Respondents. Indeed the judgment fell short of the requirement that a judge must clearly demonstrate that the conclusion arrived at in the case was not based on intuition and whims of the judge but on evidence properly evaluated. This instance is not one of form but is to ensure and demonstrate that substantial justice has been done.

See Sagay V. Sajere (2006) 6 NWLR (Pt. 661) 360.
In paragraph 36, page 10 of the Respondents’ brief of argument, counsel submits on the authority ofConoil PLC V. ITF Governing Council (2015) 9 NWLR (Pt. 1464) 399 that it is not the filing of a counter affidavit to oppose claims in an originating summons that makes such proceedings contentious or hostile thereby requiring a conversion to a writ of summons procedure. That the nature of the claim and facts deposed in the affidavit in support of the originating summons are the only processes that, that Court will consider to decipher if the issues comprised in the proceedings are suitable for an originating summons procedure. Counsel in this case is attempting to mislead the Court. In that case there was no counter affidavit filed in opposition to the originating summons, yet from the nature of the claims of the plaintiff in that case the Court of Appeal, Per Court of Appeal Per Augie, JCA, (as she then was) still found that the nature of the claims and the facts deposed in the supporting affidavit are enough to disclose disputed facts.
Indeed, I hold it to be preposterous to contend that in order to

determine whether the suit is suitable for originating summons procedure, it is only the plaintiff’s affidavit in support of the originating summons that should be considered, that the Court is not permitted to look at the counter affidavit of the defendant. There can be no clearer case of injustice than this because that will wreck incalculable hurt to the audi alterem partem rule or maxim, a cardinal principle of natural justice. As rightly submitted by appellant’s counsel, in an originating summons proceedings, it is the counter affidavit filed in opposition to the originating summons that will determine if the facts are in dispute or conflict such that the matter cannot be determined without oral evidence. See the case of Ogah V. Ikpeazu (2017) 17 NWLR (Pt 1594) P.335.
In my view, the due execution of the Deed of Tripartite Legal Mortgage which the Court was by the originating summons called to construct in order to determine the Respondents’ rights was seriously put in issue, and therefore necessitated oral evidence to resolve the disputed facts. It is therefore in my view wrong for the trial Court to proceed to decide the

Respondents’ claims on the originating summons.

In the absence of oral evidence to resolve the disputed facts, particularly, proof that the Appellant did sign the Deed of Tripartite Legal Mortgage and thus guaranteed the loan facility extended to the 2nd Respondent, the Respondents could not be said to have established their claims to entitle them to judgment. I so hold.

Therefore issues three and four are hereby resolved against the Respondents, and in favour of the Appellant.

The end result is that I find merit in this appeal. Consequently, the judgment of the lower Court is set aside. The matter is hereby remitted for retrial before another Judge of the Federal High Court, who shall order pleadings, and give the case accelerated hearing.

However, the dismissal of the Appellant’s motion to set aside the interim orders made on 14/05/18 is affirmed. No order as to cost.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege to preview the lead judgment delivered by my learned brother JAMES GAMBO ABUNDAGA JCA.

I am in complete agreement with the reasoning and conclusion reached therein which

have been put in a lucid and eloquent style and have nothing else to add.
I therefore allow the Appeal and abide by the orders made therein.
I make no order as to costs.

MOHAMMED MUSTAPHA, J.C.A.: I read an advance copy of this Judgment beforehand. I agree with the conclusions arrived at by my learned brother J. G. ABUNDAGA, JCA. I have no difficulty accepting the success of the appeal in part; the Judgment of the trial Court is set aside as a consequence. The matter be remitted to the Chief Judge for retrial by another Judge. I also affirm the motion to set aside the interim order made on the 14th May, 2018 is affirmed.
I abide by all consequential orders.

Appearances:

D.O. Ezaga, SAN For Appellant(s)

Patrick A. Osu, FCIArb For Respondent(s)