UNIVERSITY OF CALABAR v. ASSET MANAGEMENT CORPORATION OF NIGERIA & ORS
(2019)LCN/13004(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of March, 2019
CA/L/655/2017
RATIO
WRIT OF SUMMONS: ANY WRIT OF SUMMONS TO BE SERVED OUT OF STATE MUST BE ENDORSED
The Sherriff and Civil Process Act, 2004 by Section 97 enjoins that every writ of summons for service out of a state or Federal Capital in addition to any other endorsement required in a state shall be endorsed to the effect that it is to be served out of the ..state …and in the …state. In this case a 3rd party notice was served outside the Lagos division of the Federal High Court and had no such endorsement.PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JURISDICTION: DEFINITION OF OUT OF JURISDICTION
Order 6 Rule 31 of the Federal High Court Rules, 2009 has interpreted out of jurisdiction to mean out of the Federal Republic of Nigeria and the Apex Court recently laid to rest the bickering over this compliances of Section 97 Sherriff and Civil Process Act, 2004 in the case of AKEREDOLU V ABRAHAM (Supra) wherein the entire Federation was held to be the jurisdiction of the Federal High Court and that out of jurisdiction meant outside the Federal Republic of Nigeria.PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
THIRD PARTY NOTICE PROCEEDINGS: WHAT IS THE PURPOSE OF THIRD PARTY NOTICE PROCEEDINGS
In fact the very nature of third party notice procedure is to avoid multiplicity of actions and shorten litigation time, See BANK OF IRELAND v UBN & ANOR (1998) LPELR – 744(SC) on the object of third party proceedings;?(i) that it is premature to raise objection to its liability albeit that the contention that it had entered appearance and so was bound in the third party procedure, is invalid and not sustainable. (ii) The objects of third party procedure or notice being aimed at preventing multiplicity of proceedings and the possibility of the same questions being litigated twice (see Standard Securities Ltd. v. Hubbard (1967) Ch. 1056 at 1059) it is best to settle all matters in controversy once and for all. It ought to be noted, in addition, that the procedure applies not only to cases of contribution and indemnity but also to cases where any relief or remedy claimed by the defendant relates to or is connected with the original subject matter of the action and is substantially the same as some relief or remedy claimed by the plaintiff and to cases where any question or issue which relates to or is connected with the original subject matter of the action, should be determined not only as between the plaintiff and the defendant but as between either or both of them and the third party. See Chatsworth Investment Ltd. v. Amoco (U.K.) Ltd. (1968) Ch. 665, C.A. (iii) The need to make the 3rd party a party to the proceedings is the overriding need for the third party to be bound by the ultimate result of the action and the questions to be settled or resolved are prime considerations vide Peenok Investment Ltd. v. Hotel Presidential Ltd. (1982) 12 S.C.1; Green v. Green (1987) 3 NWLR (Pt.61 ) 480; Odu’a Investment Co. Ltd. v. Talabi (1991) 1 NWLR (Pt.170) 761 and Governor of Oyo State v. Folayan (1995) 8 NWLR (Pt. 413) 292. (iv) Besides, the provisions of Order 11 Bendel State (Civil Procedure) Rules, 1988 (ibid) allow for third party procedure in Rules 12(1) and (2) (in pari materia with the English RSC Order 16) are relevant and applicable as follows: “(1) Where in any action a defendant claims against any person not already a party to the action (in this section called ‘the third party’) (a) that he is entitled to contribution or indemnity; or (b) that he is entitled to any relief or remedy relating to or connected with the original subject- matter of the action and substantially the same as some relief or remedy claimed by the plaintiff; or (c) that any question or issue relating to or connected with the said subject-matter is substantially the same as some question on the issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and defendant and the third party or between either of them; the Court or Judge in chambers may give leave to the defendant to issue and serve a third party notice. (2) The Court or judge in chambers may give leave to issue and serve a third party notice on an ex parte application supported by an affidavit, or where the Court or judge in chambers directs a summons to the plaintiff to be issued upon the hearing of the summons: provided that leave shall not be granted in cases where the action was begun and an order for pleadings made before the date of the commencement of these rules.” See also Bullen and Leake and Jacob’s Precedents of Pleadings, Twelfth Edition by I.H. Jacobs at page 1365.”
per ONU, J.S.C ( PP. 23-25, PARAS. A-C).PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
FAIR HEARING: FAIR HEARING IS A FUNDAMENTAL ISSUE THAT AFFECTS JURISDICTION
On the principles of fair hearing which is a fundamental issue that affects jurisdiction to hear the matter or deliver judgement or nullifies a decision given. See; UZUDA v EBIGAH (2009) 19 NWLR (PT 165); FRN v AKUBUEZE (2010) 17 NWLR (PT 1223) 525; KALU v STATE (2017) 14 NWLR (PT 1586) 522 at 547; GOMWALK v MILITARY ADMINISTRATOR OF PLATEAU STATE (2011) LPELR – 9185 CA 1.PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
UNIVERSITY OF CALABAR – Appellant(s)
AND
1. ASSET MANAGEMENT CORPORATION OF NIGERIA
2. AFRIHUB NIGERIA LIMITED
3. PROF. MANNY ANIEBONAM
4. VITALIS NDU
5. FEDERAL UNIVERSITY OF TECHNOLOGY, OWERRI
6. FEDERAL UNIVERSITY OF TECHNOLOGY, MINNA
7. UNIVERSITY OF ABUJA – Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This Appeal flows from the decision of the Federal High Court Lagos per I. N. BUBA, J delivered on 3rd of February 2017, the Notice of Appeal is dated 7th April, 2017 and filed on 14th April, 2017. The crux of this matter dwelt on the jurisdiction of the Court to hear the subject matter in the action.
A summary of the facts is that the suit was instituted by 1st Respondent as FHC/L/CS/1346/20015 as a special claim under the AMCON Act 2010 on 26th August, 2015 and same was initiated against the 2nd, 3rd and 4th Respondents herein.
The Appellant, 5th, 6th & 7th Respondents were joined via a third party notice filed by the 2nd – 4th Respondent in this appeal.
The Appellant had informed the Court earlier and the 2nd-4th respondent sought an order to appoint assessors to determine the quantum of work done by 3rd and 4th respondent and liability if any. The relationship of the parties was a contract agreement to develop an ICT PROJECT at the Appellant?s main campus in Calabar.
?At proceedings of 3rd February, 2017 which was slated for
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the 2nd – 4th respondents? application to appoint assessors, the Court gave a summary judgement upon an oral application for summary judgment against the Appellant, hence the notice of appeal filed herein on 6th March, 2017.
The Appellant entered conditional Appearance to the 3rd party notice and filed a preliminary objection on 5th August, 2016 and Appellant contends that without a prior determination of the preliminary objection. On 3rd February, 2017 the lower Court entered judgement against the Appellant in the further sum of N811, 080,521.00.
The parties exchanged briefs after filing pursuant to rules of Court of Appeal, the Appellant?s brief was filed on 20/10/17 deemed on 29/11/18 and redeemed on 14/2/19, while the Reply to 2nd – 4th Respondents brief was filed on 12/12/18 deemed on 14/2/19 same were settled by H. A. BELLO, Esq Ksm. The Appellant formulated 6 issues for determination wit:
1. Whether the Court below has jurisdiction to determine a third party notice that was not endorsed as required by Section 97 Sherrifs and Civil Process Act, 2004. (Ground 1, Notice of Appeal)
2. Whether the third party notice that was founded
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on simple contract is within the scope of the jurisdiction of the Federal High Court. (Ground 2, Notice of Appeal)
3. Whether the lower Court has jurisdiction to entertain a matter under Asset Management Corporation of Nigeria Act, 2010 against a non financial institution. (Ground 3, Notice of Appeal)
4. Whether the lower Court did not violate the principles of fair hearing notice when the lower Court determined the third party notice without first hearing and determining Appellant?s pending application and without prior issuance and service of hearing notice on the Appellant. (Ground 4 and 5, Notice of Appeal)
5. Whether the Court was right to continue to hear and determine this matter after the time limited by AMCON Practice Direction, 2013 had lapsed. (Ground 7, Notice of Appeal)
6. Whether the lower Court was right to entertain the third party notice against the Appellant, a public officer, when it was filed well after three months of the accrual of the cause of action. (Ground 8, Notice of Appeal)
The 2nd – 4th Respondent?s brief was filed on 26/11/18 deemed on 29/11/18 and re-deemed on 14/2/19, it was settled by Femi Falana SAN and Ikeazor Akariwe.
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The 2nd – 4th Respondents adopted the issues as formulated by the Appellant. The 1st, 5th, 6th & 7th Respondents did not file any brief.
ISSUES (1-6)
The Appellant complained that the lower Court was wrong in law to assume jurisdiction to determine 3rd party notice that did not comply with Section 97, Sherriff and Civil Process Act, 2004, he submitted Section 95 therein on the definition of writ of summons and that by virtue of Order 9 Rule 18 (1) (c) of the Federal High Court (Civil Procedure) Rules 2009, a third party notice is required to be sealed and served on third party in the same manner as a writ of summons. He referred to Order 9 Rule 19 of the Federal High Court (Civil Procedure) Rules 2009 which provides for the effect of a notice, therefore he submitted that the 3rd party notice is a writ of summons under Section 95 Sherriff and Civil Process Act, 2004 which is mandatorily required to be endorsed like Section 97 Sherriff and Civil Process Act, 2004 upon being issued out of Lagos State before proper service can be said to be effected in Calabar.
He opined that at page 518 of the record, it
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shows that it was not so endorsed hence it is defective, incompetent, and null and void. See OWNERS OF THE MV ARABELLA v N.A.I.C. (2008) 11 NWLR (PT 1097) 337 at 398-399. He submitted that it robbed the Court of jurisdiction he citedBELLO v NATIONAL BANK OF NIGERIA LTD (1992) 6 NWLR (PT. 246) 217; NATIONAL BANK OF NIGERIA v GUTHRIE (NIG) (1993) 3 NWLR (PT. 284) 643; NWABUEZE v OBI-OKOYE (1988) 4 NWLR (PT 91) 644; NNPC v ELUMAH (1997) 3 NWLR (PT 492) 204; SKEN CONSULT (NIG) LTD v SECONDY UKEY (1981) 1 SC 6; EZOMO v OYAKHIRE (1985) 1 NWLR (PT. 2) 195; ADEGOKE MOTORS LTD v ADESANYA (1989) 3 NWLR (PT. 109) 250; NEPA v ONAH (1997) 1 NWLR (PT. 484)680.
On issue 2, the Appellant contended that the Court is not vested with jurisdiction to adjudicate upon actions founded upon simple contract, because the 3rd party notice was based on simple contract and the contract is at pages 557-566, he citedONUORAH v KADUNA REFINING & PETROCHEMICAL COMPANY LTD (2005) 6 NWLR (PT. 921) 140; ADELEKAN v ECU-LINE NV (2006) 26 NSCQR (PT 11) 780 at 809 and (2006) ALL FWLR (PT. 321) 1213 at 1226; OKEZE v NIGERIAN STOCK BROKERS LTD (2008) ALL FWLR (PT. 442) 1192 at 1206 ?
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1207; INTERGRATED TIMBER & PLYWOOD PRODUCTS LTD v UBN PLC (2006) ALL FWLR (PT. 324) 1789 at 1803.
He submitted it will render it null and void and relied on ADEKANYE v COMPTROLLER OF PRISON (2000) FWLR (PT 8) 1258; GALADIMA V TAMBAI (2000) FWLR (PT 14) 2369.
?On issue 3, the main object of the 1st respondent, around which all others revolve, is enshrined in Section 4(a) & 5(a) of AMCON Act, 2010. He submitted that all functions in Section 5(b) – (g) AMCON Act are geared towards giving effect to its functions in Section 5(a) and that jurisdiction over AMCON matters as stipulated in Section 53 of AMCON Act are vested in Federal High Court and it is the eligible financial institution defined by Section 61 of AMCON ACT. The Appellant contended that it is a creature of statue, The University of Calabar Act, as an academic institution and not a financial bank institution within the contemplation of AMCON Act and therefore Federal High Court is not conferred with jurisdiction to hear a 3rd party action like the Appellant either as a debtor or a debtor of a financial institute and that there is no privity of contract between them, and
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this is not covered by Section 251(1) of 1999 Constitution (as amended). He relied on MUSACONI LTD v ASPINALL (2013) 14 NWLR (PT. 1375) 435 at 458 and the Court should declare the judgement a nul
