REV. OLAJIDE AWOSEDO & ORS v. ASSET MANAGEMENT CORPORATION OF NIGERIA & ORS
(2019)LCN/13299(CA)
In The Court of Appeal of Nigeria
On Friday, the 17th day of May, 2019
CA/IB/192/2018(R)
JUSTICES
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
1. REV. OLAJIDE AWOSEDO
2. ENGR. EDUN KAYODE
3. MR. ADABA ANTHONY
4. MR. BYOMA ANDREW
5. MR. MFON ADEBAYO Appellant(s)
AND
1. ASSET MANAGEMENT CORPORATION OF NIGERIA
2. HAVILLA VILLAS LIMITED
3. GRANT PROPERTIES LIMITED
4. REV. (MRS.) ABIMBOLA OLAJIDE-AWOSEDO
5. ARCH. ADEBAYO KAYODE
6. MR. OLAJIDE-AWOSEDO OLAWUMI ADEDEJI
7. KNIGHT ROOK LIMITED Respondent(s)
RATIO
WHETHER OR NOT THE COURT IS TO CONSIDER THE TOTALITY OF FACTS AND CIRCUMSTANCES OF EACH CASE WHEN CALLED UPON TO EXERCISE ANY DISCRETION
Accordingly no case can be authority over the other on how the Court would exercise its discretion in a particular case; otherwise there would be no power in the Court to exercise any discretion. Courts called upon to exercise their discretion are only enjoined to consider the totality of the facts and circumstances of each case in the exercise of such discretion. See Nwadiogbu v. A.I.R.B.D.A. (supra) cited by learned Counsel for the Respondents, Kanumbu v. Bunu (2004) LPELR ? 12605 (CA); Buhari & Ors v. Obasanjo & Ors (2003) 17 NWLR (pt.850) 587; Lagos State Govt. & Anor v. Beneficial Endowment Ltd (2018) LPELR ? 45779 (CA) and N.D.I.C. v. Lagos State Gov?t & Ors (2009) LPELR ? 4611 (CA); (2011) 1 NWLR (pt.1229) 629. Thus, in Dokubo Asari v. FRN (2007) 12 NWLR (pt.1048) 320 at 350 Muhammad, JSC stated the position clearly as follows:
?Where the question is one of the exercise of discretion, authorities are not of much value. This is because, no two authorities are exactly similar; even if they are, Courts cannot be bound by the previous decision to exercise its discretion because that would be putting an end to discretion. Thus no discretion in one case can be a precedent to another.?
?In the exercise of discretion therefore, the Court called upon to exercise such power should not be restrained or clogged by other previous decisions. The judge should therefore be guided by the facts and circumstances of the case before him considering that the power being exercised is a judicial one. It should therefore not be exercised at the whims and caprices of the Judge, but judicially and judiciously. See U.B.N. v. Astra Builders (W.A.) Ltd (2010) 5 NWLR (pt.1186) 1 at 26 and Bello v. Yakubu (2008) 15 NWLR (pt.1109) 1.
The above principles apply with equal force in a case such as this, where the Court is called upon to exercise its discretion by granting an adjournment sine die or to a specified date. The burden lies on the party who seeks the discretion of the Court to supply necessary materials that will guide the Court in determining whether to exercise the discretion in his favour. The Applicant does that by deposing to those facts in an affidavit which support the application. The Court thereafter has the duty to carefully and dispassionately evaluate such facts in order to arrive at a just decision. See Adesanya v. Lawal (2007) 7 NWLR (pt.1032) 54; Ali Pindar Kwajafa Ltd v. Borno State Water Corporation (2009) 17 NWLR (pt.1171) 429 and SCOA (Nig) Plc v. Omatsola (2009) 11 NWLR (pt.1151) 106. Courts have therefore been enjoined to exercise their discretion only on the materials placed before them. In that respect, consideration of extraneous facts or the personal opinion of the Judge should be avoided. PER TSAMMANI, J.C.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Lead Ruling): The 1st Respondent/Applicant had instituted an action against the Appellants and the 2nd, 3rd, 4th, 5th, 6th and 7th Respondents in this appeal before the Federal High Court of Nigeria, Abeokuta in Suit No: FHC/AB/CS/69/2016. In the course of the proceedings, Mr. Alex Mouka of A. Mouka & Co., filed a Notice of Change of counsel for the 2nd and 3rd Respondents herein on the ground that he has been appointed the Receiver/Manager by the 1st Respondent/Applicant herein. The Appellants and the 2nd ? 6th Respondents objected to the said Notice of Change of counsel when they filed a Notice of Preliminary Objection thereto. The objection was however dismissed by the Court below on the 28/2/2018.
?The Appellants herein, being displeased by the Ruling on the Preliminary Objection filed a Notice of Appeal. The said Mr. Alex Mouka represented the 2nd and 3rd Respondents throughout the hearing of the appeal which has been conducted under the Court of Appeal (Fast Track) Practice Directions, 2014. However, after the Briefs had been filed, the 1st Respondent filed this motion seeking
for:
1. AN ORDER adjourning this appeal sine die.
2. SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances of this case.
The Grounds upon which the Applicant sought the relief are as follows:
1. This appeal emanated from an interlocutory decision on legal representation in Suit No: FHC/AB/CS/69/2016 ? Asset Management Corporation of Nigeria v. Havilla Villas & 10 Ors; Suit No: FHC/AB/CS/69/2016 sui generis and instituted by the 1st Respondent before the Federal High Court, Abeokuta by way of a Motion dated 3rd August, 2016.
2. After commencing the action by the said Motion, the 1st Respondent as mandated by the AMCON Practice Directions filed a Claim Form and Statement of Claim within the required 14 days period. The Defendants at the lower Court objected to the competence of the Claim Form and the Statement of Claim filed by the 1st Respondent at the lower Court. The lower Court refused the objection on 26th May, 2017.
3. Consequently, some of the Defendants instituted Appeal No: CA/IB/319/17 ? Rev. Olajide Awosedo & Ors v. Asset Management Corporation of Nigeria & Ors
before this honourable Court challenging the Ruling of the Federal High Court delivered on 26th May, 2017.
4. This Honourable Court by a Judgment delivered on 7th December, 2018 set aside the ruling of the lower Court delivered on 26th May, 2017 refusing the Defendants? objection and thereafter, struck out the Claim Form and Statement of Claim filed at the lower Court.
5. In view of the Ruling of this Court delivered on 7th December, 2018, the issue of legal representation of the Defendants which is the subject of this appeal becomes unnecessary and academic until the Defendants are served with a new Claim Form in Suit No: FHC/AB/CS/69/2016.
6. Knight Rook Limited (7th Respondent herein) filed a Notice of Appeal to the Supreme Court challenging the decision of the Court of Appeal striking out the Claim Form and Statement of Claim. The 7th Respondent also filed an Application dated 10th December, 2018 at the Supreme Court seeking to suspend the effect of the Judgment of this honourable Court and maintain status quo pending the determination of its appeal at the Supreme Court.
7. By law, once such application is before the apex Court,
the parties and indeed the lower Courts are expected to refrain from any act that may pre-empt or prejudice the decision of the Supreme Court. The decision to be reached by the Supreme Court in respect of Appeal No: CA/IB/319/17 would determine whether there are live issues in this appeal or not.
8. There is a need to adjourn this appeal sine die so as not to pre-empt the decision of the Supreme Court.
The Application is supported by an Affidavit of 17 paragraphs to which are annexed four documents marked as Exhibits ?A?, ?B?, ?C? and ?D? respectively. In response, the Respondents filed an 18 paragraphs Counter-Affidavit in opposition to the Application. The 1st Respondent/Applicant then file two similar Further-Affidavits in reply to the Counter-Affidavit. They were filed in the 31/1/19 and 8/2/19 respectively. In obedience to the order of this Court, the parties filed and exchanged Written Addresses.
The Applicant?s Written Address was dated the 02/2/2019 but filed on the 08/2/2019. Therein, one issue was formulated for determination as follows:
?In view of the applicable laws
and the facts in support of this application, whether this Honourable Court should adjourn this appeal sine die.?
The Appellants/Respondents? Written Address in opposition to the Motion is dated and filed on the 18/2/2017. Like the Applicant, only one issue was formulated for determination as follows:
?Whether the 1st Respondent has provided sufficient facts entitling it to an order adjourning the hearing of this appeal sine die.?
It would be seen that the issues formulated for determination by the parties are similar in scope and con, only that they are differently worded.
?
Now, in arguing the Application Chief Ifedayo Adedipe, SAN of learned counsel for the Applicants contended that the Application has been initiated pursuant to the Court of Appeal Rules (no order and rule of this Court was referred to); and the inherent jurisdiction of this Court. It was however submitted that, in view of the relevant laws and facts, this appeal should be adjourned sine die. That it is settled law that an order for adjournment is granted in the exercise of the discretion of a Court, which discretion must be exercised judicially
and judiciously. The cases of Vidah Packaging Ltd & Anor v. Augustine Ikem (2011) LPELR 5086 ? CA/E/223/2007 and A.I.B. Ltd v. U.B.A. Plc (2014) LPELR ? 23070 were cited in support.
?
Learned Counsel for the Applicant went on to contend that, in view of the judgment of this Court delivered on the 7/12/2018 in CA/IB/319/2017 which set aside the decision of the lower Court delivered on the 26/5/2017 in Suit No: FHC/AB/CS/69/2016, the issue of legal representation of the Defendants in that suit which is the subject of this appeal has become spent and therefore academic. That the foundation of this Appeal No: CA/IB/192/2018 is Suit No: FHC/AB/CS/69/16 without which the issue of legal representation will not arise. However, that in the event of claim being filed, the issue of legal representation will be for the parties to determine. That it is so because, there will be a new suit and claim, service of which can only be effected on the parties personally and not on counsel. It was therefore submitted that, in the circumstances, it would be premature to ask the Court to determine in advance who should represent which party. The case of Mmamman v.F.R.N.
(2013) 6 NWLR (pt.1351) 569 at 582 was then cited to submit that, as a matter of law, Courts of law are not the proper forum to ventilate such academic issues.
Learned Counsel for the Applicant further argued that, of significance is the prospect of continuing this appeal in the future is the Application filed by the 7th Respondent at the Supreme Court, seeking to suspend the effect of the Judgment of this Court delivered on the 7/12/2018 pending the determination of the appeal filed before the Supreme Court. The case of Chief M. O. Abbi v. Chief J.J.T. Princewill & Ors (2011) LPELR ? CA/PH/19/2007 was then cited to further submit that, the law is settled that once such applications are pending before the apex Court, the parties and lower Courts are enjoined to refrain from doing any act that may pre-empt or prejudice the decision of the Supreme Court.
?
Learned Counsel for the Applicant then contended that, the continuation of this appeal would lead to a total disregard to and prejudice of the jurisdiction of the Supreme Court. It was accordingly submitted that, from the totality of the facts as deposed to in the Affidavit of the
Applicant, as well as the legal arguments canvassed on the issue, the Application is worthy of favourable consideration. That this is more so, so as to prevent the parties from mis-interpreting the order of this Court as the parties have commenced actions that may be prejudicial to the application before the Supreme Court. We were accordingly urged to hold that, the proper thing to do in the circumstances, is to adjourn this appeal sine die pending the determination of the appeal filed by the 7th Respondent at the Supreme Court.
In response, J. A. Badejo, SAN of learned counsel for the Appellants/Respondents, contended that the Applicant is not praying this Court to strike out the Appeal on the ground that it has become academic. That, rather, the Applicant prays for an adjournment and further gave reasons for requesting such indulgence. It was then submitted that the principles governing adjournment have been well settled by the Supreme Court in several cases such as Abiodun Odusote v. Olaitan Odusote (1971) N.M.L.R.228 at 231 and Udoji Nwadiogbu & Ors v. Anambra/Imo River Basin Development Authority & Anor (2010) 19 NWLR (pt.1226) 364. That the
Applicant has not placed sufficient materials before the Court to entitle it to the exercise of this Courts? discretion to grant adjournment of this Appeal sine die as required by Order 3 Rule 14 of the Court of Appeal Rules, 2016.
Learned Senior Counsel for the Respondents went on to submit that, it is not disputed that this Appeal emanated from the decision of the Federal High Court in Suit No: FHC/AB/CS/69/2016. That by the judgment of this Court delivered on the 7/12/2018 in Appeal No: CA/IB/319/2017, this Court struck out the General claim and Statement of Claim filed by the Applicant in the said suit. That since then, the 1st and 7th Respondents have taken three steps as disclosed in the Affidavit in support of the Application as follows:
(a) the 7th Respondent has appealed the judgment of this Court delivered on the 7/12/2018;
(b) the 7th Respondent has filed an Application before the Supreme Court seeking an order suspending giving effect to that judgment of this Court delivered on the 7/12/2018; and
(c) the 1st Respondent/Applicant has disclosed that it has filed a new claim in the same Suit No: FHC/AB/CS/69/2016 as deposed
to in paragraph 9 of the Affidavit in support of this Application.
It was then submitted by learned senior counsel for the Respondents that, the implication of those facts is that, the Suit No: FHC/AB/CS/69/2016 is still active. In other words that by disclosing that the 1st Respondent who is the Applicant herein has filed a new Claim Form and Statement of Claim in Suit No: FHC/AB/CS/69/2016, it is making an affirmative statement that the suit is still subsisting and active. Learned Counsel then submitted that, in the circumstances, the 1st Respondent/Applicant and the 7th Respondent have taken steps which make the hearing of the pending Appeal on whether Mr. Alex Mouka of Mouka & Co., has filed a valid Notice of change of counsel to represent the 2nd and 3rd Respondents in this Appeal, becomes a matter of compelling necessity.
?
Learned SAN for the Respondents further contended that, the issue of representation of the 2nd and 3rd Respondents who are listed as the 9th and 10th Respondents in the Appeal Court, is therefore relevant at the hearing of that Appeal in the Supreme Court. Furthermore, that whatever the merit of any process that has been
filed by the 1st Respondent/Applicant, in Suit No: FHC/AB/CS/69/2016, the issue of representation of the 2nd and 3rd Respondents will still surface. That, in the circumstances, the Applicant cannot blow ?hot and cold?, having disclosed that it has filed a new Claim and Statement of Claim in the lower Court in the same suit but turned around to argue that the issue of representation raised in this Appeal is an academic exercise and should be kept in abeyance sine die. We were accordingly urged to hold that, the issue of representation of the 2nd and 3rd Respondents remain a live issue at both the Supreme Court and in the Court below.
?
Learned Senior Counsel reminded us that this matter is an AMCON matter for recovery of debt which proceeding is conducted under the Fast Track (Practice Directions) of this Court. Referring to Clauses 2(d), 3(a), 3(b) and 4(f) of the Fast Track (Practice Directions) of this Court, learned Senior Counsel contended that, it would be more in accord with the objectives of the Fast Track Rules to deal with the issue of representation of counsel now so that it does not present a clog to the effective disposition of the
pending Appeal in the supreme Court and the proceedings at the Federal High Court. Furthermore, that the contention of the Applicant that the Appellants/Respondents have conceded to the issue of representation is the subject of Ground 4 of Preliminary Objection leading to this Appeal. It was thus submitted that, the allegation of concession is an issue that has been addressed in the main Appeal. We were accordingly urged to resolve the lone issue in this Application against the Applicant; and to dismiss the Application.
Now, by the Application under consideration, the 1st Respondent/Applicant has urged us to delay the hearing of this Appeal; to wit: Appeal No: CA/IB/192/2018 sine die. It should be noted that the grant or refusal to grant an adjournment is always at the discretion of the Court, and which discretion has to be exercised judicially and judiciously. The circumstances of each case would determine the decision of the Court in the exercise of such discretion. Accordingly no case can be authority over the other on how the Court would exercise its discretion in a particular case; otherwise there would be no power in the Court to exercise any
discretion. Courts called upon to exercise their discretion are only enjoined to consider the totality of the facts and circumstances of each case in the exercise of such discretion. See Nwadiogbu v. A.I.R.B.D.A. (supra) cited by learned Counsel for the Respondents, Kanumbu v. Bunu (2004) LPELR ? 12605 (CA); Buhari & Ors v. Obasanjo & Ors (2003) 17 NWLR (pt.850) 587; Lagos State Govt. & Anor v. Beneficial Endowment Ltd (2018) LPELR ? 45779 (CA) and N.D.I.C. v. Lagos State Gov?t & Ors (2009) LPELR ? 4611 (CA); (2011) 1 NWLR (pt.1229) 629. Thus, in Dokubo Asari v. FRN (2007) 12 NWLR (pt.1048) 320 at 350 Muhammad, JSC stated the position clearly as follows:
?Where the question is one of the exercise of discretion, authorities are not of much value. This is because, no two authorities are exactly similar; even if they are, Courts cannot be bound by the previous decision to exercise its discretion because that would be putting an end to discretion. Thus no discretion in one case can be a precedent to another.?
?In the exercise of discretion therefore, the Court called upon to exercise such power should
not be restrained or clogged by other previous decisions. The judge should therefore be guided by the facts and circumstances of the case before him considering that the power being exercised is a judicial one. It should therefore not be exercised at the whims and caprices of the Judge, but judicially and judiciously. See U.B.N. v. Astra Builders (W.A.) Ltd (2010) 5 NWLR (pt.1186) 1 at 26 and Bello v. Yakubu (2008) 15 NWLR (pt.1109) 1.
The above principles apply with equal force in a case such as this, where the Court is called upon to exercise its discretion by granting an adjournment sine die or to a specified date. The burden lies on the party who seeks the discretion of the Court to supply necessary materials that will guide the Court in determining whether to exercise the discretion in his favour. The Applicant does that by deposing to those facts in an affidavit which support the application. The Court thereafter has the duty to carefully and dispassionately evaluate such facts in order to arrive at a just decision. See Adesanya v. Lawal (2007) 7 NWLR (pt.1032) 54; Ali Pindar Kwajafa Ltd v. Borno State Water Corporation (2009) 17 NWLR (pt.1171) 429
and SCOA (Nig) Plc v. Omatsola (2009) 11 NWLR (pt.1151) 106. Courts have therefore been enjoined to exercise their discretion only on the materials placed before them. In that respect, consideration of extraneous facts or the personal opinion of the Judge should be avoided.
The above considerations will be more appropriate where the matter has been adjourned for hearing. In other words, the burden will be heavier on an Applicant to discharge, where the case (appeal), as in the instant case, is ready to be heard. Thus, in Nwadiogbu v. A.I.R.B.D.A. (supra) at 381 ? 382 paragraphs H ? A, My Lord, Muntaka ? Coomasie, JSC (of blessed memory) said:
?When a case has been fixed for hearing, the trial Court must ensure the hearing of the case except if a party applying for adjournment showed sufficient reason why the case must be adjourned, that is, by placing sufficient materials before the Court upon which it can exercise its discretion, otherwise, an adjournment of a case fixed for hearing would mean further delay to the other litigants who might otherwise have had their cases heard
?It would be seen therefore
that, where a case has been fixed for hearing, for an Applicant to secure a further adjournment, he must place before the Court facts which make it compelling, necessary and incumbent that the matter be adjourned.
In the instant case, the substantive matter is an AMCON matter for the recovery of debt. Appeals from such cases are guided by the Court of Appeal (Fast Track) Practice Directions, 2014. By paragraph 3(b) of the said Practice Directions, this Court is enjoined to give effect to the fundamental objective of the Practice Directions when inter alia, exercising a discretion. In doing so, parties have been urged by paragraph 3(c) of same, to help the Court to further the fundamental objectives of the Practice Directions. The objective of the Fast Track Practice Direction of this Court can be seen in paragraph 2(a) which stipulates that:
?2.(a) The Court must administer, apply, construe, and interpret these directions purposively and wholistically to secure the efficient and speedy determination of every fast-track appeal.”
It would be seen therefore, that in the application of the Fast Track Practice Direction, this Court has been
directed to mandatorily apply its provisions in a manner as would not defeat the objectives therefore.
In praying this Court to exercise its discretion in his favour, the 1st Respondent/Applicant herein, deposed to an Affidavit of 17 paragraphs and two similar Counter Affidavits. Having carefully studied those Affidavits, I am of the view that paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 15 and 16 would be relevant in the determination of this Application. For ease of reference, those paragraphs are hereby reproduced below:
?3. Suit No: FHC/AB/CS/69/2016 was instituted by the 1st Respondent before the Federal High Court, Abeokuta, by way of a Motion dated 3rd August, 2016.
4. The Suit is sui generis and regulated by the AMCON Practice Directions..
5. I know as a fact that the 1st Respondent filed a Claim Form and Statement of Claim on 16th August, 2016 because the AMCON Practice Directions requires the 1st Respondent to file a Claim Form and Statement of Claim after the grant of the Motion that commenced the action.
6. The Defendants at the lower Court objected to the competence of the Claim Form and the Statement of Claim filed by the
1st Respondent at the lower Court. The lower Court by a Ruling delivered on 26th May, 2017 refused the objection.
7. Consequently, some of the Defendants instituted Appeal No: CA/IB/319/17 ? Rev. Olajide Awosedo & Ors v. Asset Management Corporation of Nigeria & Ors before this honourable Court challenging the Ruling of the Federal High Court delivered on 26th May, 2017.
8. This Honourable Court by its Judgment delivered on 7th December, 2018 set aside the ruling of the lower Court referred to in paragraph 6 above and struck out the Claim Form and Statement of Claim filed at the lower Court. Attached herewith and marked as Exhibit ?A? is a copy of the Judgment of this honourable Court.
9. In view of the Ruling of this Court (Exhibit ?A?) it became necessary that, the 1st Respondent file a new Claim Form and Statement of Claim in Suit No: FHC/AB/CS/69/2016.
10. Likewise, in view of the Ruling of this Court (Exhibit ?A?), the issue of legal representation of the Defendants which is the subject of this appeal becomes unnecessary until the Defendants are served with the new Claim Form in Suit
No: FHC/AB/CS/69/2016.
11. However, on 10th December, 2018, the 1st Respondent was served with Knight Rook Limited?s (a Respondent in appeal No: CA/IB/319/17 and 7th Respondent herein), Notice of Appeal to the Supreme Court challenging Exhibit ?A? – the decision of the Court of Appeal striking out the Claim Form and the Statement of Claim. Attached herewith and marked as Exhibit ?B? is a copy of the Notice of Appeal filed at the Registry of this Honourable Court.
12. We were also served with an Application dated 10th December, 2018 filed at the Supreme Court seeking to suspend the effect of the Judgment of this honourable Court and maintain status quo pending the determination of its appeal at the Supreme Court. Attached herewith and marked as Exhibit ?C? is a copy of the Motion to suspend effect of Judgment filed at the Registry of the Supreme Court.
14. The decision to be reached by the Supreme Court in respect of Appeal NO: CA/IB/319/17 would determine whether there are live issues in this appeal or not.
15. There is a need to preserve the jurisdiction of the Apex Court by awaiting the decision
of the Apex Court before proceeding to hear this appeal.
16. This Application is necessary to prevent parties from mis-interpreting this honourable Court (sic) as parties herein have already commenced taking prejudicial actions not minding the application before the Supreme Court (Exhibit ?C?). I am aware that 1st Appellant herein through his counsel Learned Senior Advocate has applied to the Commissioner of Police, Lagos State imputing meanings to Exhibit ?A?- Judgment of this Court in Appeal No: CA/IB/319/17 and asking for withdrawal of Policemen from the companies in receivership which may in turn cause chaos and breakdown of law and order. Attached herewith and marked as Exhibit ?D? is a certified true copy of such letter written by the 1st Appellant herein.”
?
In reaction to the above depositions in the main Affidavit of the Applicant in support of the Motion, the Respondents filed an 18 paragraphs Counter-Affidavit. Therein, it was deposed in paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 as follows:
6. This Honourable Court indeed struck out the Claim Form and the Statement of Claim filed by the 1st
Respondent at the Federal High Court, Abeokuta in a well-considered Judgment delivered on 7th December, 2018 in Appeal No: CA/IB/319/2017 as shown in Exhibit ?A? attached to the 1st Respondent?s Application.
7. Since then the 7th Respondent has appealed against the Judgment of this Honourable Court and filed an application to suspend the effect of the Judgment as shown in Exhibit ?B? and ?C? attached to the 1st Respondent?s application.
8. The reliefs sought by the 7th Respondent as contained in the said Exhibit ?B? is to the effect that the Judgment of this Honourable Court be set aside and that the efficacy of the Ruling of the Federal High Court dated 26th May, 2017 which preserved the Originating Process be restored.
9. The present Appeal which is ripe for hearing with Parties having filed all the Briefs of Argument relate to the representation of the 2nd and 3rd Respondents by counsel.
10. With the present step taken by the 7th Respondent, the issue of representation cannot be regarded as spent because it will be relevant even at the Supreme Court and in the event that the
Judgment of this Honourable Court is reversed.
11. It is not only convenient but expedient for this Honourable Court to determine the issue of representation at this stage to avoid any confusion in the Appeal.
12. This is more particularly so as the 1st Respondent has disclosed in paragraph 9 of its affidavit in support that it has found it necessary to ?file a new Claim Form and Statement of Claim in Suit No: FHC/AB/CS/69/2016.”
13. Although the Appellants are yet to be served with the said new Claim Form and Statement of Claim, whatever the merit of the step by the 1st Respondent, the issue of representation of the 2nd and 3rd Respondent will remain a live issue at the Federal High Court.
14. It is clear that the actions of the 1st and 7th Respondents have made it more compelling and imperative for this Honourble Court to hear the Appeal on representation by counsel and rule on same.
15. This Appeal is an Asset Management Corporation of Nigeria matter for recovery of debt and under the Fast ? Track Direction of the Rules of this Honourable Court.
As pointed out earlier, the Applicant filed two Further
Affidavits in response to the Counter-Affidavit of the Respondents. The two further Affidavits are virtually similar, only that one was filed on the 31/1/19 while the other was filed on the 8/2/19. I find paragraphs 4, 5, and 6 of the Further Affidavit filed on the 8/2/19 helpful to the resolution of the sole issue in this motion. It is deposed therein as follows:
4. The Statements in paragraphs 11, 12, 13 and 14 of the Counter-Affidavit are rather premature as the 2nd and 3rd Respondents are yet to be served with the said General Claim Form and Statement of Claim. It is only upon service of the said processes that the parties can elect to brief counsel of their choice.
5. Further to paragraph 4 above, the ruling appealed against in the instant appealed is the ruling refusing the Preliminary Objection dated 5th July, 2017 by Mr. J.A. Badejo, SAN of Bonajo Badejo & Co. challenging the competence of the Notice of Change of Counsel dated 3rd July, 2017 filed by Mr. Alex Muoka of A. Muoka & Co. in FHC/AB/CS/69/2016. In view of the judgment of this Honourble Court of 7th December, 2018 in Appeal No: CA/IB/319/2017 ?
Rev. Olajide Awosedo & Ors v. Asset Management Corporation of Nigerian & Ors, service of the Originating Processes in the said suit has not been effected and no issue can be said to have arisen as to the representation as no appearance has been entered for the 2nd and 3rd Respondents.
6. In response to paragraph 10 of the Counter-Affidavit; the issue of representation will not be relevant at the Supreme Court as in Appeal No: CA/IB/319/2017 ? Rev. Olajide Awosedo & Ors v. Asset Management Corporation of Nigeria & Ors, the appeal from which the appeal to the Supreme Court acknowledged in paragraphs 7 and 8 of the Counter-Affidavit arose, the Appellants herein, which include the Appellants in the instant appeal, had on 9th November, 2017 conceded to the issue of representation on the basis of the receivership of the 2nd and 3rd Respondents. Attached herewith, and marked as Exhibit ?A? is a copy of the record of proceedings of 9th November, 2017 in Appeal No: CA/IB/319/2017.
?
Those are the facts at the disposal of this Court upon which it can exercise its discretion one way or the other. In the determination of this Application, it should
be realized that the issue in this Appeal, is on the decision of the Court below on the issue of representation. The substantive matter had been struck out by this Court in Appeal NO: CA/IB/319/2017. Appeal against the decision of this Court is now pending before the Supreme Court. Equally relevant to the determination of this Motion, is the Motion filed before the Supreme Court seeking to suspend or stay the effect of the decision of this Court, appeal against which is pending in the Supreme Court. Furthermore, it is worthy of note that, the decision of this Court which is subject of appeal at the Supreme Court emanated from the Ruling of the Federal High Court of Nigeria siting in Ibadan in suit No: FHC/AB/CS/69/2016; and the Applicant has deposed that, in view of the decision of this Court it has become necessary to file a fresh or anew its Claim Form and Statement of Claim in the same Suit No: FHC/AB/CS/69/2016.
Considering the scenario painted in both the Affidavits of the Applicant and the Counter-Affidavit, it would become a matter of guess work to say that the issue of legal representation which has persisted up to this Court on appeal, will not
surface in the Supreme Court. It would also be speculative to say whether or not the issue of legal representation will not be in issue in the Court below, in the event that hearing commences on the new Claim Form and Statement of Claim in the Federal High Court. I am therefore of the view that it would be in the interest of speedy determination of the controversy between the parties as envisaged by the Court of Appeal (Fast-Track) Practice Direction of this Court, if this application is refused. On that note, I am of the view that the law and justice of the case demands that this appeal be heard and determined timeously. Accordingly, I hold that this Application filed on the 14/1/2019 has no merit and is hereby dismissed.
ABUBAKAR MAHMUD TALBA, J.C.A.: I have had a preview of the Judgment just delivered by my learned brother Haruna Simon Tsammani JCA. I agree with his reasoning and conclusions as set out in the said Ruling, particularly as it relate to the fact that the law and justice of this case demands that this appeal be heard and determined timeously.
?Consequently the application filed on 14/1/2019 has no
merit and it is also dismissed by me.
FOLASADE AYODEJI OJO, J.C.A.: I have read before now the ruling just delivered by my learned brother, Haruna Simon Tsammani JCA. I totally agree that the application filed on the 14th of January, 2009 in the instant appeal by the 1st Respondent/Applicant lacks merit and should be dismissed.
?His Lordship has dealt extensively with all issues involved in the said application. I also dismiss same.
Appearances:
F. D. Oloruntoba, Esq.For Appellant(s)
Chief I.A. Adedipe, SAN with him, Olalekan Ashas, Esq. and Muyideen Aderounmu, Esq. for the 1st Respondent/Applicant.
Ajibola Ariba, Esq. for the 4th Respondent.
Ayodeji Ogunlana, Esq. for the 6th Respondent.
Temitayo Opajobi, Esq. for the 7th RespondentFor Respondent(s)
Appearances
F. D. Oloruntoba, Esq.For Appellant
AND
Chief I.A. Adedipe, SAN with him, Olalekan Ashas, Esq. and Muyideen Aderounmu, Esq. for the 1st Respondent/Applicant.
Ajibola Ariba, Esq. for the 4th Respondent.
Ayodeji Ogunlana, Esq. for the 6th Respondent.
Temitayo Opajobi, Esq. for the 7th RespondentFor Respondent
