ODEJIDE & ANOR v. AMCON

CITATION: (2017) LPELR-42005(CA)

In the Court of AppealIn the Ilorin Judicial Division

Holden at Ilorin

ON THURSDAY, 2ND MARCH, 2017Suit No: CA/IL/86/2016

Before Their Lordships:

MOJEED ADEKUNLE OWOADE Justice, Court of AppealCHIDI NWAOMA UWA Justice, Court of AppealHAMMA AKAWU BARKA Justice, Court of Appeal

Between1. AYOTUNDE OLUSANJO ODEJIDE2. SAMSON OLASUPO ODEJIDE - Appellant(s)

AndASSET MANAGEMENT CORPORATION OF NIGERIA - Respondent(s)

RATIO DECIDENDI

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1. COURT - RAISING ISSUE(S) SUO MOTU: Effect of raising an issue suomotu without hearing from the parties"...the issue of the inconsistency of Paragraph 5.3 of the AMCON PracticeDirections did not arise from the processes, affidavit evidence andaddresses of Counsel before the trial Court. The issue or matter was thusraised suo motu by the trial Court and without calling on learned Counselfor the parties to address it on it before basing its decision thereon.The law is now settled that if the issue was not raised by the parties or intheir Counsel's address but the trial Judge raised same in its Judgmentwithout calling on Counsel for both parties to address it on it andproceeded to base its Judgment on it, then the law, which is now verysettled, is that such a finding or holding cannot be sustained upon appealas the holding must be set aside.See:CHAMI VS. UBA PLC (2010) 6 NWLR (PT. 1191) 474 AT 500; JEV VS.IYORTYOM (2014) 14 NWLR (PT. 1423) 575 AT 606 - 607;BHOJSONS PLCVS. DANIEL KALIO (2006) 5 NWLR (PT. 976) 330 AT 350 - 351; GWEDE VS.I.N.E.C. (2014) 18 NWLR (PT. 1438) 56 AT 92 - 93.On the other hand, the cases of: FINNIH VS. IMADE (1992) 1 NWLR (PT.219) 511 AT 537; and BAKARE VS. NIGERIAN RAILWAY CORPORATION(2007) 7 - 10 SC 1 AT 50 are both concerned with reference to principlesof law not referred to by the parties which can be referred to by the Courtin its own Judgment.The issue of inconsistency of Paragraph 5.3 of the AMCON PracticeDirections is not a principle of law but a distinct issue that has to bedecided upon address by both parties.The rationale for this principle could be seen in the Judgment of theSupreme Court per Okoro JSC in JEV VS. IYORTYOM (Supra) at Pages 606 -607 that: "By raising an issue suo motu by a Court and basing a decisionon it without arguments from both parties, the party affected is denied theopportunity of being heard and this is a breach of his right to fair hearingentrenched in Section 36 of the Constitution of the Federal Republic ofNigeria 1999 (As amended) where a Court fails to bring an issue raised suomotu to the attention of the parties and argument taken on it beforedeciding on it, such decision is liable to be set aside. See IBORI VS. AGBI(2004) ALL FWLR (PT. 202) 1799 AT 1835; PAN AFRICAN INTERNATIONALINCORPORATION VS. SHORE LINE LIFE BOATS LTD. (2010) 6 NWLR (PT.1189) 98". In the instant case, the learned trial Judge was in error to haveraised the issue of the inconsistency of Paragraph 5.3 of the AMCONPractice Directions suo motu and decided on the issue without inviting theparties through their Counsel to address on it."Per OWOADE, J.C.A. (Pp.21-23, Paras. B-C) - read in context

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2. COURT - JURISDICTION: What confers jurisdiction on a Court; Whethersame can be taken away by a practice direction"In deciding Issue Two, I do agree with the learned Counsel for theRespondent and indeed the learned trial Judge that is in only theConstitution or Statute which donated jurisdiction in the first place thatcan take away the jurisdiction of a Court in determining a matter broughtbefore it. In the instant case, the jurisdiction of the Court to hear anddetermine the Suit is conferred by the 1999 Constitution of the FederalRepublic of Nigeria (As amended) as well as the AMCON ACT. It trulyfollows that Paragraph 5.3 of the AMCON Practice Directions 2013 cannotlimit, rob or take away the jurisdiction of the Court below in determiningthe Suit. See: ANYANWOKO VS. OKOYE (2010) 5 NWLR (PT. 1188) 497 AT514; AFRIBANK (NIG.) PLC VS. AKWARA (2006) 5 NWLR (PT. 974) 619 AT654. The cases of: NWANKWO VS. YAR'ADUA (Supra) ANPP VS. GONI ANDORS. (Supra) and SHETTIMA VS. GONI (Supra) amongst others took theirroot and bearing from the provision of the time limit imposed on electiontrials, consequent on the provision of Section 285(6) and (7) of theConstitution of the Federal Republic of Nigeria 1999 (As amended) and aretherefore not applicable to the facts and circumstances of the presentcase. ?The learned trial Judge was thus right when he held inter alia atpages 272 - 273 of the record that: "It is important to state here that thelaw makers/drafters of the AMCON ACT never intended to set a time frameupon which a cause would be determined. The reason being that if the lawmaker intended that a cause should be heard and determined by theCourt within a specified time, it would have included it in AMCON ACT oramended the Constitution to reflect same. For instance, the 180 daysprescribed for the Hearing and Determination of Election Petitions by theElection Tribunal and 60 days for the determination of Election Appeals bythe Court of Appeal were stipulated by Section 285 (6) and (7) CFRN 1999(As amended) and this was brought about whenever the Legislatureintended to circumscribe the jurisdiction of a Court. The reason is not far-fetched, being that Election Tribunals and the Court of Appeal arecreations of the 1999 Constitution of the Federal Republic of Nigeria (Asamended) and the Constitution was accordingly amended to circumscribethe jurisdiction of the Election Tribunals and the Appellate Court. It isworthy of note that the Electoral Act 2011 was not amended to containprovisions that will set the time within which the Election Tribunal and theAppellate Court will hear and determine election petitions. It is therefore,my considered view that the AMCON Practice Directions 2013 cannot inthe same respect be intended to take away the jurisdiction of this Courtconferred on it by the AMCON ACT and the 1999 Constitution."PerOWOADE, J.C.A. (Pp. 31-33, Paras. D-E) - read in context

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3. JUDGMENT AND ORDER - FINAL/INTERLOCUTORY JUDGMENT:Distinction between a final/interlocutory judgment"In determining the preliminary objection by the Respondent, I am boundto reiterate the recent opinion of the Supreme Court in the case ofN.A.O.C. LTD. VS. NWEKE (2010) ALL FWLR (PT. 845) 1 AT 26-27 whereMuhammed JSC relying on dictum of Karibi-Whyte (JSC Rtd) in IGUNBORVS. AFOLABI (2001) FWLR (PT. 59) 284, (2001) 11 NWLR (PT. 723) 148postulated thus: "A final Judgment at law is one which brings to an end therights of the parties in the action. It disposes of the subject matter of thecontroversy or determines the litigation as to all parties on the merits onthe other hand, an interlocutory order or Judgment is one given in theprocess of the action or cause, which is only intermediate and does notfinally determine the right of the parties in the action. It is an order whichdetermines some preliminary or subordinate issue or settles some step orquestion but does not adjudicate the ultimate rights of the parties as tothe particular issue disputed, it is a final order even if arising from aninterlocutory application for instance an order for committal of contemptarising in the course of proceedings in action is final order."Per OWOADE,J.C.A. (Pp. 10-11, Paras. F-F) - read in context

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MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the

Leading Judgment): This is an Appeal against the

decision of the Federal High Court, Ilorin Judicial Division,

delivered by Honourable Justice R. N. OFILI-AJUMOGOBIA

on the 7th June, 2016.

The Respondent had instituted a Suit against the

Appellants jointly and severally at the Federal High Court,

Ilorin Judicial Division on a General Claim Form and

Statement of Claim under AMCON ACT which was filed on

14th of December, 2015 claiming the following Reliefs:-

a) AN ORDER granting judgment against the Defendants

in the sum of N42,967,162.95 156,805.28K (Sic) (Forty-

Two Million, Nine Hundred and Sixty Seven

Thousand, One Hundred and Sixty Two Naira, Ninety-

Five Kobo) being the debt owed the Claimant by the 1st

Defendant as of 22nd June, 2015.

b) Interest at the rate of 15% per annum on the judgment

debt against the Defendants with effect from 22nd June,

2015.

c) Interest at the rate of 15% per annum on the judgment

debt against the Defendants, from the date until Judgment

is fully liquidated.

d) A DECLARATION that the Third party legal mortgage

created on the

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2nd Defendant’s property crystallized upon the Default of

the 1st Defendant to fulfill the terms and conditions of the

overdraft facilities.

e) AN ORDER granting leave to the Claimant to sell and

dispose of the immovable property of the 2nd Defendant in

satisfaction of the judgment debt.

f) AN ORDER of Mandatory injunction restraining the

Defendants from disposing of their assets, movable and

immovable, wherever located by way of sale, transferor

creation of third party interest however until the judgment

debt is fully liquidated.

g) The cost of this action.

The defendants (now appellants) filed their amended

statement of defence and counter claim on 9th day of

February, 2016. In the said statement of defence, the

appellants/counter claimants claim against the respondent

as follows:-

i. A DECLARATION that the defendants are not indebted

to the Claimant for sum claimed or any sum at all.

ii. AN ORDER of perpetual injunction restraining the

Claimant from selling the property situate at adject(sic)

criterion Nursery and Primary School, No 5 Kola Bukoye

Street, off University Road Tanke Ilorin, covered by

Statutory Right of

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Occupancy No. KW.6015.

iii. N62,963,034.38 (Sixty Two Million, Nine Hundred and

Sixty Three Thousand Thirty Four Naira) (Sic) only being

the excess charges and accrued interest on the 1st

Defendant’s account in line with Central Bank of Nigeria

Monetary, Credit, Foreign Trade and Exchange Policy

Circulars No. 39 of January, 2012.

iv. N2,000,000 (Two Million Naira) only as general

damages against the Claimant in favour of the Defendants.

v. Cost of defending this suit and filing of counter claim.

vi. AN ORDER of this Honourable Court discharging the

third party legal mortgage created on the 2nd Defendant

property situate at adjacent criterion Nursery and Primary

School, No 5 Kola Bukoye Street, off University Road Tanke

Ilorin, covered by Statutory Right of Occupancy No.

KW.6015, registered as No. 190 at page in Vol. 42 (MISC)

of the Lands Registry Office at Ilorin, Kwara State.

On 16th March, 2016, the Appellants as Defendants

Applicants filed a Motion brought pursuant to Paragraph

5(3) of The AMCON Practice Directions 2013, ORDER 56,

Rule 1 of the Federal High Court Rules (CIVIL

PROCEDURE) 2009 AND under the inherent

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Jurisdiction of the Court and prayed thus:

1. “AN ORDER of this Honourable Court dismissing

the Claimant’s claims in their entirety same having

lapsed and became spent with by effluxion of time.

2. And for such further order or orders as this

Honourable Court may deem fit to make in the

circumstance of this case”.

The grounds upon which the application was based are

stated as follows:-

1. “The Claimant started this action sometimes in

14th December, 2015 by filing General Claim and

Statement of Claim under the AMCON ACT and

AMCON PRACTICE DIRECTIONS 2013.

2. By virtue of AMCON PRACTICE DIRECTIONS, the

trial and written address in the Claimant’s action

must be concluded within 3 months from the date

when the case started.

3. The three months stated above lapsed sometime on

14th March, 2016.

4. From 14th March, 2016, the Claimant’s Suit has

become spent/lapsed by effluxion of time.

5. Consequently, this Honourable Court is divested

with the jurisdiction to continue to entertain the

matter.

In response, Respondent filed a Written Address dated

31/03/2016 in opposition to

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Appellants’ Preliminary Objection.

On 07/06/2016, the learned trial Judge struck out the

Appellants’ application. He held inter alia, first at page 273

of the record that:

“... It therefore follows that it is only the Constitution

or the Statute that can take away the jurisdiction of a

Court in determining a matter before it ... therefore

... Paragraph 5.3 of the AMCON Practice Directions

2013 cannot limit, rob or take away the jurisdiction of

this Court in determining this Suit. See the case of

AFRIBANK (NIG.) PLC VS. AKWARA (2006) 5 NWLR

(PT. 974) 619 AT 654 PARA G”.

Further at pages 273 – 274, that:

“It is of great importance to also observe here that

Paragraph 5.3 of the AMCON Practice Directions is in

conflict with the provisions of Section 36 and 294(1)

of the 1999 Constitution of the Federal Republic of

Nigeria (As amended) which accords to every person

the right to fair hearing and the right to have their

matter not

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only heard but be determined. See the cases of YUSUF

VS. ADEGOKE (2007) 11 NWLR (PT. 1045) 332 AT

360 PARAS F – H and NOSPELTO OIL AND GAS LTD.

VS. OLORUNINMBE (2012) 10 NWLR (PT. 1307) 115

AT 116 PARAS A–B ........

I therefore hold that Paragraph 5.3 of the AMCON

Practice Directions 2013 is inconsistent with the

provisions of Section 36 and 294(1) of the Federal

Republic of Nigeria (As amended). Accordingly,

Paragraph 5.3 of the AMCON Practice Directions

2013 is nul l and void to the extent of the

inconsistency”.

Following the above and still on Pages 274 to 275 of the

record, the learned trial Judge added:

“I am not oblivious of the fact that it may be said that

this Court has raised suomotu the issue of the

inconsistency of Paragraph 5.3 of the AMCON

Practice Directions 2013 with Section 36 and 294(1)

of the 1999 Constitution of the Federal Republic of

Nigeria (As amended) for the first time and also

decided same without hearing the parties. To this,

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I say that it is trite law that the application of the law

relevant to the determination of the case before the

Court will not affect the decision of the Court on such

issue. See the case of FINNIH VS. IMADE (1992) 1

(PT. 219) 511 AT 537 PARAS D-E ....

From the above, it is crystal clear that this Court is

raising the issue of the inconsistency of Paragraph

5.3 of the AMCON Practice Directions 2013 with

Section 36 and 294(1) of the Constitution of the

Federal Republic of Nigeria (As amended) only

applied to the provision of the relevant Section of the

1999 Constitution of the Federal Republic of Nigeria

(As amended) to the issue formulated by parties to be

decided upon by this Court”

Dissatisfied with the Ruling, the Appellants filed a Notice of

Appeal (containing seven (7) Grounds of Appeal in this

Court on 22-07-2016.

The relevant Briefs of Argument for the Appeal are as

follows:-

1. Appellants’ Brief of Argument dated 12-10-2016

and filed on 13-10-2016 – settled by Dr. J. O.

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Olatoke, SAN.

2. Respondent’s Brief of Argument (incorporating

Notice of Preliminary Objection) dated 25-10-2016

and filed on 26-10-2016 – settled by A. B. Sulu

Gambari.

3. Appellants’ Reply Brief of Argument dated and filed

on 09-11-2016 – settled by Oludare W. Akanbi, Esq.

THE PRELIMINARY OBJECTION:

Learned Counsel for the Respondent raised a preliminary

objection on the grounds:

1. That the Notice of Appeal was filed outside the

time prescribed by law.

2. That leave of this Honourable Court was neither

sought nor obtained.

In support of the above, learned Counsel for the

Respondent reproduced the provision of Section 24(1) and

(2a) of the Court of Appeal Act CAP C.36 LFN 2004 and

submitted that the decision of the lower Court being

appealed against is an interlocutory decision.

Consequently, Appellants had fourteen (14) days after

delivery of the Ruling to file a Notice of Appeal at the

Registry of the lower Court. He submitted that Ruling was

delivered on 07/06/2006 while the Notice of Appeal was

filed on 22/07/2016 outside the statutory period and

without leave of Court.

He referred to the

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case of OWOH VS. ASUK (2008) 16 NWLR (PT. 1112)

113 AT 131 to say that a Notice of Appeal filed outside the

statutory period without the leave of Court is incompetent.

He further referred to the cases of:

EJIOGU VS. IRONA (2009) 4 NWLR (PT. 1132) 513 AT

569; and YUSUF VS. ADEWUYI (1991) 7 NWLR (PT.

201) 39 AT 54.

He urged that the Appeal is incompetent and ought to be

dismissed.

Learned Counsel for the Appellant on the other hand

submitted that the decision is final and not interlocutory.

That, being so, the leave of this Honourable Court is not

required to file this Appeal.

He submitted that the law is trite that in order to determine

whether a decision is interlocutory or final, the determinant

factor is whether the decision is capable of finally

determining the right of the party or concludes the matter

between the parties even if made upon interlocutory

application. He referred on this to the cases of:

N.A.O.C. LTD. VS. NWEKE (2010) ALL FWLR (PT.

845) 1 AT 26 – 27; IGUNBOR VS. AFOLABI (2001)

FWLR (PT. 59) 284 (2001) 11 NWLR (PT. 723) 148;

OBUZOR VS. AKE (2009) 2 NWLR (PT. 1120) 388 AT

421 – 422; OMONUWA VS. OSHODI AND ANOR

(1985) 2

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SC 1 AT 22; FIDELITY BANK PLC VS. M. T. TABORA

(2009) 8 NWLR (PT. 1142) 83 AT 102.

Learned Counsel for the Appellants submitted that the

application of the Appellants though interlocutory in

nature, made at the lower Court for dismissal of the

Respondent’s case is capable of determining finally the

rights between the parties herein. He submitted that if the

trial Court had agreed with the application, that would

have been the end of the Respondent’s case and if this

Court allows the appeal, it still brings to an end the

Respondent’s case. Therefore, said Counsel, the order

appealed against by the Appellants is a final one and not

interlocutory hence, leave of this Honourable Court is not

required before filing same. He submitted that the law is

trite that a party need not seek leave before filing a final

decision even either on facts alone or mixed law and fact.

He referred to the cases of:

BIDA VS. ABUBAKAR (2011) 5 NWLR (PT. 1239) 130

AT 171; FHA VS. KALEJAYE (2010) 12 (PT. 2) SCM 58

AT 68.

In determining the preliminary objection by the

Respondent, I am bound to reiterate the recent opinion of

the Supreme Court in the case

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of N.A.O.C. LTD. VS. NWEKE (2010) ALL FWLR (PT.

845) 1 AT 26 – 27 where Muhammed JSC relying on

dictum of Karibi-Whyte (JSC Rtd) in IGUNBOR VS.

AFOLABI (2001) FWLR (PT. 59) 284, (2001) 11 NWLR

(PT. 723) 148 postulated thus:

“A final Judgment at law is one which brings to an

end the rights of the parties in the action. It disposes

of the subject matter of the controversy or determines

the litigation as to all parties on the merits on the

other hand, an interlocutory order or Judgment is one

given in the process of the action or cause, which is

only intermediate and does not finally determine the

right of the parties in the action. It is an order which

determines some preliminary or subordinate issue or

settles some step or question but does not adjudicate

the ultimate rights of the parties as to the particular

issue disputed, it is a final order even if arising from

an interlocutory application for instance an order for

committal of contempt arising in the course of

proceedings in action is final order”.

In the instant case, the effect of the trial Court’s order is

that it has jurisdiction to try the Claimant’s claims

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and that the claims had not lapsed and became spent by

effluxion of time.

The order is a final order that can dispose off the rights of

the parties.

In the circumstance, the Appellants have ninety (90) days

to appeal the decision and not fourteen (14) days as

canvassed by the learned Counsel for the Respondent.

The Notice of Appeal of the Appellants filed on 22-07-2016

against the decision of 07-06-2016 is within three (3)

months.

Accordingly, the Respondent’s preliminary objection lacks

merit and it is overruled.

THE MAIN APPEAL:

Learned Senior Counsel for the Appellants nominated three

(3) Issues for the determination of the Appeal as follows:-

1. Whether the trial Court was right to have raised

suo motu and resolved that Paragraph 5.3 of the

AMCON Practice Directions 2013 is null and void and

in conflict and inconsistent with Section 36(1) and (2)

of the 1999 Constitution (As amended 1999) without

inviting parties to address the Court on same and

without proper parties before it. (Grounds 2 and 3).

2. Whether the trial Court was right when it held that

Paragraph 5.3 of the AMCON Practice Directions

2013 cannot

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limit, rob or take away the jurisdiction of the trial

Court to determine the Claimant/Respondent’s Suit

and consequently refusing to dismiss the

Respondent’s Suit having lapsed by effluxion of time

(Grounds 1, 4, 5 and 6).

3. Whether the trial Court was right to have adopted

double standard when it dismissed the Appellants’

Motion but granted similar application in SUIT NO.

FHC/IL/CS/77/2015 – AMCON VS. OGAI INVESTMENT

COMPANY LTD. AND ANOR which is based on the

same facts and circumstances (Ground 7).

Learned Counsel for the Respondent adopted the Issues

nominated by the Appellants.

Learned Senior Counsel for the Appellants proposed to

argue Issue One separately and sought leave of Court to

argue Issues Number Two and Three together.

On Issue One, learned Senior Counsel for the Appellants

submitted that the learned trial Judge was totally wrong to

have raised suo motu and resolved that Paragraph 5.3 of

the AMCON Practice Directions 2013 is null and void as it

is in conflict and inconsistent with Section 36(1) and (2) of

the 1999 Constitution (As amended) without inviting

parties to address the Court on same.

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He submitted that it is the law that the Court is bound to

confine itself to the case presented and the Issues raised by

parties. It has no business considering an issue not

properly brought before it.

He referred to the case of BHOJSONS PLC VS. DANIEL

KALIO (2006) 5 NWLR (PT. 976) 330 AT 350 AT 351

and added that where however, a Court finds it necessary

to raise an issue which, otherwise has not been raised by

any of the parties before it, it then becomes necessary for

that Court to place properly before the parties and ask

them to address it on same. Failure to do that, said

Counsel, will indeed be tantamount to abdicating its

jurisdictional responsibility and a breach of the natural and

constitutional principle of fair hearing.

Appellants’ Counsel referred on this point to the decisions

of the Supreme Court in:

JEV VS. IYORTYOM (2014) 14 NWLR (PT. 1423) 575

AT 606 – 607 (Per Okoro JSC) and

CHAMI VS. UBA PLC (2010) 6 NWLR (PT. 1191) 474

AT 500 (Per Onnoghen JSC).

He submitted further that in the instant case, the

consistency or inconsistency of Paragraph 5.03 of the

AMCON Practice Directions (2013) with Section 36(1)

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and (2) of the 1999 Constitution of the Federal Republic of

Nigeria was not an issue canvassed at the lower Court by

the parties at all and the trial Court raised same suo motu

without hearing the parties. The trial Court, said Counsel,

was wrong to raise the issue suo motu and resolved same

against the Appellants without the Appellants being

afforded the opportunity of being heard on it as it breached

the Appellants’ right of fair hearing and thereby rendered

the Ruling of the trial Court a nullity.

Learned Senior Counsel for the Appellants referred to yet

another decision of the Supreme Court in GWEDE VS.

I.N.E.C. (2014) 18 NWLR (PT. 1438) 56 AT 92 – 93

(Per Onnoghen JSC) and submitted further that since the

Appellants will be adversely affected by the issue raised

suo motu by the trial Court, the Court ought to have invited

the Appellants to address him. Again, that the failure of the

trial Court to invite the Appellants to address it on the

consistency or otherwise of Paragraph 5.3 of the AMCON

Practice Directions 2013 with Section 36 of the 1999

Constitution of the Federal Republic of Nigeria has

occasioned a miscarriage of justice against

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the Appellants. Therefore, the decision must as a matter of

course be set aside in its entirety.

On another wicket, learned Senior Counsel for the

Appellants submitted that the AMCON Practice Directions

(2013) was made by the Chief Judge of the Federal High

Court pursuant to Section 254 of the Constitution of the

Federal Republic of Nigeria, 1999 (As amended), Section

44 of the Federal High Court Act, Sections 53 and 61 of the

AMCON ACT 2010 and Order 57, Rule 3 of the Federal

High Court (Civil Procedure) Rules guide proceedings on

AMCON matters.

That the said Chief Judge was not made a party to the case

before the trial Court declared the Practice Directions null

and void. He submitted that the Chief Judge is a necessary

party, if the trial Court wants to declare the Practice

Directions null and void; the Chief Judge must also be

heard.

On the failure to hear affected party before deciding any

issue against him especially when he was not made a party

to the Suit, Counsel referred to the case of EZIONWU VS.

EGBO (2006) 5 NWLR (PT. 973) 316 AT 328 – 329 (Per

Chukwuma Eneh JCA as he then was).

Also, BELLO VS. INEC (2010) 8 NWLR

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(PART 1196) 342 AT 403 – 404.

It follows therefore, said Counsel, that the trial Court ought

not to declare Paragraph 5.3 of the AMCON Practice

Directions (2013) null and void without joining the Chief

Judge of the Federal High Court who is the maker of the

Practice Directions and heard from him before declaring

the Practice Directions inconsistent and such failure has

occasioned a miscarriage of justice.

Appellants’ Counsel submitted further that failure to join

and hear from the Chief Judge has affected the competency

of the trial Court to deal with the issue that affects the

Practice Directions and therefore rob off the Court to try

same and this Honourable Court must declare same null

and void.

The pertinent question, said Counsel is whether the Chief

Judge has power to make the Practice Directions and the

answer is in the positive. That assuming without conceding

that the trial Court want to assert that the Chief Judge of

the Federal High Court acted ultra vires in enacting the

Practice Directions, the proper remedy for questioning

Paragraph 5.3 of the AMCON Practice Directions 2013 is to

have applied for an order of certiorari

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apart from joining the Chief Judge.

On this, Appellants’ Counsel referred to the case of

JUDICIAL SERVICE COMMISSION OF RIVERS STATE

VS. YOUNG (2013) 11 NWLR (PT. 1364) 1 AT 38.

He submitted that the trial Court can only challenge the

legality or otherwise of the AMCON Practice Directions

through the means of certiorari since the said Practice

Directions was made by the Chief Judge in its judicial and

administrative capacity. He argued that the position of the

learned trial Judge does not fall within the ambit of what is

stipulated byFINNIH VS. IMADE (1992) 1 NWLR (PT.

219) 511 AT 537 heavily relied upon by the trial Court

Judge to raise the issue suo motu. The principle in that case

is not applicable to the case at hand. He urged us to resolve

the issue in favour of the Appellants.

Learned Counsel for the Respondent on the other hand

urges us to hold that the trial Court was right when it

relied on Section 36(1) and (2) of the 1999 Constitution (As

amended) in voiding Paragraph 5.3 of the Practice

Directions without inviting parties to address it.

He referred to the cases of:

FINNIH VS.IMADE (1992) 1 NWLR (PT. 219) 511 AT

537;

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and BAKARE VS. NIGERIAN RAILWAY CORPORATION

(2007) 7 – 10 SC 50

He submitted further that all the submissions of the

Appellants that the Chief Judge of the Federal High Court

ought to have been made a party at the lower Court are not

supported by law. The cases cited particularly:

EZIONWU VS. EGBO (2006) 5 NWLR (PT. 973) 316 AT

328 – 329; and BELLO VS. INEC (2010) 8 NWLR

(PART 1196) PG. 342

are not applicable to the matter.

None of the above cases, said Counsel, support the

contention that the Chief Judge of a Court must be made a

party to proceedings before a part of a legislation made by

the Chief Judge is set aside.

He submitted that the Appellants’ basis for the argument is

anchored on their (erroneous) perception that the Chief

Judge will be personally affected by the outcome of the

Ruling. That Appellants are obviously confusing the office

of the Chief Judge of the lower Court with the person of the

Chief Judge. What matters, said Counsel, is the office of the

Chief Judge and there is no way the office will be

prejudiced by the decision of the lower Court declaring

Paragraph 5.3 of the Directions void and of no

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effect without joining the Chief Judge.

Learned Counsel for the Respondents further submitted

that the Appellants’ right to fair hearing could not have

been breached when Paragraph 5.3 of the Directions was

declared void suo motu by the lower Court without asking

the parties to address it on it. He argued that even if this

Honourable Court resolves this issue in Appellants’ favour,

this Honourable Court will only set aside this part of the

Ruling and cannot dismiss the Respondent’s claim at the

lower Court particularly if this Court holds that Paragraph

5.3 of the Practice Directions cannot circumscribe the

jurisdiction of the lower Court.

In deciding Appellants’ Issue One, I do not think it is right

for the learned Senior Counsel for the Appellants to have

suggested that the Chief Judge of a Court must be made a

party to proceedings before a part of a legislation made by

the Chief Judge is set aside.

I also agree on this score with the learned Counsel for the

Respondent that the cases of:

EZIONWU VS. EGBO (2006) 5 NWLR (PT. 973) 316 AT

328 – 329; and BELLO VS. INEC (2010) 8 NWLR

(PART 1196) 342

are not

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applicable to this case.

Indeed, neither the office of the Chief Judge nor the person

of the Chief Judge is directly affected by the possibility of

the exercise of judicial powers to set aside a Practice

Directions made by a Chief Judge as to make the Chief

Judge a necessary party to such an action.

However, the issue of the inconsistency of Paragraph 5.3 of

the AMCON Practice Directions did not arise from the

processes, affidavit evidence and addresses of Counsel

before the trial Court. The issue or matter was thus raised

suo motu by the trial Court and without calling on learned

Counsel for the parties to address it on it before basing its

decision thereon.

The law is now settled that if the issue was not raised by

the parties or in their Counsel’s address but the trial Judge

raised same in its Judgment without calling on Counsel for

both parties to address it on it and proceeded to base its

Judgment on it, then the law, which is now very settled, is

that such a finding or holding cannot be sustained upon

appeal as the holding must be set aside.

See:

CHAMI VS. UBA PLC (2010) 6 NWLR (PT. 1191) 474

AT 500; JEV VS. IYORTYOM (2014) 14

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NWLR (PT. 1423) 575 AT 606 – 607; BHOJSONS PLC

VS. DANIEL KALIO (2006) 5 NWLR (PT. 976) 330 AT

350 - 351; GWEDE VS. I.N.E.C. (2014) 18 NWLR (PT.

1438) 56 AT 92 – 93.

On the other hand, the cases of:

FINNIH VS. IMADE (1992) 1 NWLR (PT. 219) 511 AT

537; and BAKARE VS. NIGERIAN RAILWAY

CORPORATION (2007) 7 – 10 SC 1 AT 50

are both concerned with reference to principles of law not

referred to by the parties which can be referred to by the

Court in its own Judgment.

The issue of inconsistency of Paragraph 5.3 of the AMCON

Practice Directions is not a principle of law but a distinct

issue that has to be decided upon address by both parties.

The rationale for this principle could be seen in the

Judgment of the Supreme Court per Okoro JSC in JEV VS.

IYORTYOM (Supra) at Pages 606 – 607 that:

“By raising an issue suo motu by a Court and basing a

decision on it without arguments from both parties,

the party affected is denied the opportunity of being

heard and this is a breach of his right to fair hearing

entrenched in Section 36 of the Constitution of the

Federal Republic of Nigeria 1999 (As amended) where

a Court

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fails to bring an issue raised suo motu to the

attention of the parties and argument taken on it

before deciding on it, such decision is liable to be set

aside. See IBORI VS. AGBI (2004) ALL FWLR (PT.

202) 1799 AT 1835; PAN AFRICAN INTERNATIONAL

INCORPORATION VS. SHORE LINE LIFE BOATS LTD.

(2010) 6 NWLR (PT. 1189) 98”.

In the instant case, the learned trial Judge was in error to

have raised the issue of the inconsistency of Paragraph 5.3

of the AMCON Practice Directions suo motu and decided on

the issue without inviting the parties through their Counsel

to address on it. The learned trial Judge was however, not

wrong in not joining the Chief Judge as a party to the Suit

in rendering the decision.

Issue One is resolved in part in favour of the Appellants.

Learned Senior Counsel for the Appellants chose to argue

his Issues Two and Three together as follows:-

That the trial Court was wrong in facts and in law to have

held that Paragraph 5.3 of the AMCON Practice Directions

2013, cannot limit, rob or take away the jurisdiction of the

trial Court to determine the Claimant/Respondent’s Suit

and at the same time declined jurisdiction in

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a similar application on the same facts and circumstance,

that the matter is spent by effluxion of time after the

expiration of three months from the date of commencement

of action thereby adopting double standard procedure.

He submitted that the Schedule to an Act, Law, Decree or

Practice Direction can limit the time within which an action

is to be tried. That while the Schedule normally sets out

Rules of Procedure regarding practice and procedure

regarding a matter, the Practice Directions guide and

regulate the compliance with the Schedule to the Act by

stating how and when things were to be done, just like

election matter where Practice Directions complement the

Schedule to the Electoral Act.

He referred to the case of: NWANKWO VS. YAR’ADUA

(2010) 12 NWLR (PT. 1209) 518 AT 588 and submitted

that Practice Directions does not limit the jurisdiction of

the Court but guide the time within which an action is to be

completed. The Practice Directions should not be

circumvented in any manner, it must be followed strictly.

Failure to comply with Practice Directions comes with

sanctions. He posited that the Practice Directions being an

integral part

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of an enactment has the force of law and it must be obeyed

otherwise the party in default must be ready to face the

sanction of non-compliance.

He submitted that since AMCON case is sui generis, just

like Election Petition matters, non-compliance with Practice

Directions must be sanctioned without any fear or favour.

He referred to the cases of:

G.M.O.N. AND S. CO. LTD. VS. AKPUTA (2010) 9

NWLR (PART 1200) 443 AT 473; UKPAI VS. OKORO

AND ORS. (1983) 14 NSCC 599 AT 613; and

OWNERS OF THE MV ARABELLA VS. N.A.I.C. (2008)

ALL FWLR (PART 443) 1208 AT 1227

and submitted that while the Practice Directions in this

case do not confer jurisdiction, the Practice Directions

regulate the exercise of the Court’s jurisdiction and

circumscribed same to three (3) months within which same

can be exercised.

He submitted further that where a Practice Direction has

guided a proceeding from the beginning of a matter and

the Court has made use of the Practice Directions in

determining the rights of the parties, the Court or party

cannot turn round when the action has lapsed by the

provision of the same Practice Directions to say that the

Practice

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Directions has breached the right of the party to fair

hearing and therefore null and void.

He referred to the case of ABATI VS. ROBERT (1999) 4

NWLR (PART 597) 126 AT 136 and added on the

authority of the case of WAZIRI VS. DANBOYI (1999) 4

NWLR (PART 598) 239 AT 248 (Per Sanusi JCA, as he

then was) that the principle of fair hearing does not mean

that the Court should do the impossible all in the name of

fair hearing. Learned Senior Counsel for the Appellants

submitted that the provision of the Practice Directions

under consideration is just like Section 285(5) and (6) of

the Constitution which provides for the time limit within

which Election matter must be concluded. He submitted

that once an action is spent or lapsed by effluxion of time,

there is nothing left in that action again.

He referred to the case of EZEADUKWA VS. MADUKA

(1997) 8 NWLR (PT. 518) 635 AT 656 that the effect of

the word “must” used in the provision of Paragraph 5.3 of

the Practice Directions connotes command, essential or

necessity which is mandatory. Its effect, he says is greater

than that of the word “shall”.

That upon the lapse and effluxion

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of the time within which the Respondent’s case ought to be

concluded, the trial Court no longer has the jurisdiction to

entertain the Respondent’s Suit again.

He referred to the cases of:

ANPP VS. GONI AND ORS. (2012) 3 SCM 32 AT 53;

SHETIMA VS. GONI (2011) 9 SCM 62 AT 83;

ODOFIN VS. AGU (1992) 3 NWLR (PT. 229) 350 AT

365 – 366; LADO VS. C.P.C. (2011) 18 NWLR (PT.

1279) 689 AT 716 – 717;

DANGANA VS. USMAN AND ORS. (2012) 4 SCM 55 AT

72; MADUKOLU VS. NKEDILIM (1962) ALL NLR (PT.

2) 581

and submitted further that the failure of the learned trial

Court to be bound by the ratio decidendi of the Apex Court

in the above mentioned cases has led to a wrong decision.

He submitted relying on the decision of the Supreme Court

per Kekere-Ekun JSC in NWACHUKWU VS. PDP (2014)

17 NWLR (PT. 1435) 134 AT 171 that it is the law that a

party who refused or failed to take advantage of the

hearing process created by the Court cannot turn around to

accuse the Court of denying him fair hearing. And, that it is

too late in the day for the trial Court to descend into the

arena and hold the brief of the Respondent that it will be

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tantamount to denial of fair hearing if the Respondent’s

case is dismissed.

On Issue Three, Learned Senior Counsel for the Appellants

submitted that the trial Court adopted double standard

when it dismissed the Appellants’ application but granted

similar application in SUIT NO. FHC/IL/CS/77/2015;

AMCON VS. OGAI INVESTMENT COMPANY LIMITED

AND ANOR which is based on the same facts and

circumstances which cause miscarriage of justice against

the Appellants because whatever is good for the goose is

good for the gander and equality before the law should be

maintained by all Court.

He submitted that in SUIT NO. FHC/IL/CS/77/2015, based

on the same facts and circumstances, the learned trial

Judge held that the AMCON Practice Directions (2013)

binds the conduct of the Suit and its provision must be

complied with.

However, that in a judicial somersault and against

established principles of law, the learned trial Judge in

SUIT NO. FHC/IL/CS/78/2015 raised suo motu and resolved

that Paragraph 5.3 of the AMCON Practice Directions

(2013) is in conflict with Section 36(1) of the 1999

Constitution and same is null and void.

He urged us to

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allow the Appeal, set aside the Ruling of the trial Court

with an order dismissing the Respondent’s claims having

lapsed by effluxion of time.

Learned Counsel for the Respondent in his treatment of

Issue Two reproduced the provision of Sections 53 and 61

of the AMCON ACT 2010 (As amended) and reminded us

that the jurisdiction of the lower Court to hear and

determine the matter is donated by Sections 53 and 61 of

the Asset Management Corporation of Nigeria Act 2010 (As

amended).

He submitted that the Act does not limit the jurisdiction of

the lower Court to hear and determine matters particularly

with respect to time. What Sections 53 and 61 say in a

nutshell is that the Chief Judge may assign a Judge of the

Court to hear matters for the recovery of assets owed the

Respondent and other matters arising from the provisions

of the Act during which the Judge will not hear any other

matters for a period to be determined by the Chief Judge.

Counsel submitted that because of the importance of

jurisdiction, it may only be limited or circumscribed by

Statute.

He referred to the cases of:

NBN VS. SHOYOYE AND ANOR (1977) 2 NSCC 301 AT

306 –

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307; A-G, FEDERATON VS. GUARDIAN NEWSPAPERS

LTD. (1999) 9 NWLR (PT. 618) 187 AT 233;

AFRIBANK (NIG.) PLC VS. AKWARRA (2006) 5 NWLR

(PT. 974) 619 AT 654 – 655

and submitted that it is inconceivable in law and logic that

Paragraph 5(3)of the Directions can terminate the

jurisdiction of the Court as contended by the Appellants.

He referred to the Supreme Court’s decision in

ANYANWOKO VS. OKOYE (2010) 5 NWLR (PT. 1188)

497 AT 514 and submitted that jurisdiction is unaffected

by Rules of Court (and by implication, Practice Directions).

That, in the same vein, the Supreme Court in NASIR VS.

CIVIL SERVICE COMMISSION, KANO STATE (2010) 6

NWLR (PT. 1190) 253 made it clear that Rules of Court

cannot determine when and how an objection to the

jurisdiction of a Court may be raised because jurisdiction is

a question of law and a Rule of Court whereas Rules of

Court are subsidiary legislations.

He submitted that where the Legislature wishes to

circumscribe the jurisdiction of a Court, it does so clearly

by Statute or the Constitution. He cited the example of the

provision of Section 285(6) and (7) of the Constitution

under which the case of ANPP VS. GONI

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AND ORS. (2012) 7 NWLR (PT. 1298) 147 AT 191 was

decided. That applying the above authorities and analogy to

this matter, Paragraph 5(3) of the Practice Directions

cannot, by any canon of interpretation, override the clear

provisions of Sections 53 and 61 of the AMCON ACT which

donated jurisdiction to the lower Court to hear and

determine the Suit before it. Therefore, said, Counsel, all

the arguments that the Practice Directions have the force

of law and must be obeyed are true to the extent that it

cannot circumscribe the jurisdiction of the Court which is

donated by Statute.

In deciding Issue Two, I do agree with the learned Counsel

for the Respondent and indeed the learned trial Judge that

is in only the Constitution or Statute which donated

jurisdiction in the first place that can take away the

jurisdiction of a Court in determining a matter brought

before it. In the instant case, the jurisdiction of the Court to

hear and determine the Suit is conferred by the 1999

Constitution of the Federal Republic of Nigeria (As

amended) as well as the AMCON ACT. It truly follows that

Paragraph 5.3 of the AMCON Practice Directions 2013

cannot limit, rob or take

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away the jurisdiction of the Court below in determining the

Suit.

See:

ANYANWOKO VS. OKOYE (2010) 5 NWLR (PT. 1188)

497 AT 514; AFRIBANK (NIG.) PLC VS. AKWARA

(2006) 5 NWLR (PT. 974) 619 AT 654.

The cases of: NWANKWO VS. YAR’ADUA (Supra) ANPP

VS. GONI AND ORS. (Supra) and SHETTIMA VS. GONI

(Supra) amongst others took their root and bearing from

the provision of the time limit imposed on election trials,

consequent on the provision of Section 285(6) and (7) of

the Constitution of the Federal Republic of Nigeria 1999

(As amended) and are therefore not applicable to the facts

and circumstances of the present case.

The learned trial Judge was thus right when he held inter

alia at pages 272 – 273 of the record that:

“It is important to state here that the law

makers/drafters of the AMCON ACT never intended to

set a time frame upon which a cause would be

determined. The reason being that if the law maker

intended that a cause should be heard and

determined by the Court within a specified time, it

would have included it in AMCON ACT or amended

the Constitution to reflect same. For instance, the

180 days prescribed for the Hearing and

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Determination of Election Petitions by the Election

Tribunal and 60 days for the determination of

Election Appeals by the Court of Appeal were

stipulated by Section 285 (6) and (7) CFRN 1999 (As

amended) and this was brought about whenever the

Legislature intended to circumscribe the jurisdiction

of a Court. The reason is not far-fetched, being that

Election Tribunals and the Court of Appeal are

creations of the 1999 Constitution of the Federal

Republic of Nigeria (As amended) and the

Constitution was accordingly amended to

circumscribe the jurisdiction of the Election

Tribunals and the Appellate Court. It is worthy of note

that the Electoral Act 2011 was not amended to

contain provisions that will set the time within which

the Election Tribunal and the Appellate Court will

hear and determine election petitions. It is therefore,

my considered view that the AMCON Practice

Directions 2013 cannot in the same respect be

intended to take away the jurisdiction of this Court

conferred on it by the AMCON ACT and the 1999

Constitution”.

Based on the above, Issue Two is resolved against the

Appellants. Learned Counsel for the Respondent conceded

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Appellants’ Issue Three and the said Issue Three is

accordingly resolved in favour of the Appellants.

In this Appeal, Issue One was resolved in part in favour of

the Appellants and Issue Three was also resolved in favour

of the Appellants.

Issue Two was however, resolved against the Appellants

and in favour of the Respondent.

However, Issue Two which was resolved in favour of the

Respondent is the determinant Issue in the Appeal.

Consequently, the Appeal lacks merit and it is hereby

dismissed.

The Ruling of R. N. OFILI-AJUMOGOBIA J. in SUIT NO.

FHC/IL/CS/78/2015 of 7th June, 2016 is hereby affirmed.

However, and in the interest of justice, SUIT NO.

FHC/IL/CS/78/2015 is remitted to the Honourable, the

Chief Judge, Federal High Court for assignment to another

Judge of the Federal High Court for trial.

The sum of Fifty Thousand Naira (N50,000.00) costs is

awarded to the Respondent.

CHIDI NWAOMA UWA, J.C.A.: I read in advance the

judgment of my learned brother, MOJEED ADEKUNLE

OWOADE, JCA.

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My learned brother has comprehensively resolved the

issues that arose in this appeal, I have

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nothing to add. I agree with his lordship's reasoning and

conclusion arrived at in holding that the appeal lacks merit.

I also dismiss it and affirm the Ruling of the lower Court. I

endorse the order made in the leading judgment remitting

the case to the Chief Judge of the Federal High Court for

assignment to another judge for trial.

I abide by the order made as to costs in favour of the

Respondent.

HAMMA AKAWU BARKA, J.C.A.: I had the rare

opportunity of reading in draft the lead Judgment just

delivered by my learned brother, MOJEED ADEKUNLE

OWOADE, JCA, PJ with which I am in full agreement.

The Ruling of the lower Court is hereby affirmed. I equally

agree that the case be remitted for assignment to another

Judge in the determination of the substantive matter. I

abide on Order made as to costs.

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