3PLR – ODEJIDE AND ANOR V. ASSET MANAGEMENT CORPORATION OF NIGERIA

Published by Law Nigeria Admin at July 15, 2019

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ODEJIDE AND ANOR

V. ASSET MANAGEMENT CORPORATION OF NIGERIA

COURT OF APPEAL

(ILORIN DIVISION)

CA/IL/86/2016

THURSDAY, 2 MARCH 2017

3PLR/2017/243 (CA)

BEFORE THEIR LORDSHIPS:

M.A. OWOADE JCA (Presided and Read the Lead Judgment)

CHIDI NWAOMA UWA JCA

HAMMA AKAWU BARKA JCA

BETWEEN

AYOTUNDE OLUSANJO ODEJIDE
SAMSON OLASUPO ODEJIDE

AND

ASSET MANAGEMENT CORPORATION OF NIGERIA

REPRESENTATION:

O.W. Akanbi, Esq. (with him, K. A. Aminu (Mrs.) and O. A. Egbewole, Esq.) – for the Appellants.

A.B. Sulu-Gambari, Esq. (with him, I. B. Ayegbami, Esq., Raheem Ismaila, Esq. and I. B. Malik, Esq.) – for the Respondent.

MAIN JUDGMENT

OWOADE JCA (Delivering the Lead 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 7 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 14 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 1^st defendant as of 22 June 2015.

(b) Interest at the rate of 15% per annum on the judgment debt against the defendants with effect from 22 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 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 2^nd 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, transfer or 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 counterclaim on 9 February 2016. In the said statement of defence, the appellants/ counterclaimants claim against the respondent as follows:

A declaration that the defendants are not indebted to the claimant for sum claimed or any sum at all.
An order of perpetual injunction restraining the claimant from selling the 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. KW6015.

iii. N62,963,034.38 (sixty-two million naira, 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.

N2,000,000.00 (two million naira) only as general damages against the claimant in favour of the defendants.
Cost of defending this suit and filing of counterclaim.
An order of this honourable court discharging the third party legal mortgage created on the 2^nd defendant’s 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. KW6015, registered as No. 190 at page in Vol. 42 (MISC) of the Lands Registry Office at Ilorin, Kwara State.

On 16 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 jurisdiction of the court and prayed thus:

“An order of this honourable court dismissing the claimant’s claims in their entirety same having lapsed and became spent by effluxion of time.
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 14 December 2015 by filing general claim and statement of claim under the AMCON Act and AMCON Practice Directions, 2013.

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.
The three months stated above lapsed sometime on 14 March 2016.
From 14 March 2016, the claimant’s suit has become spent/lapsed by effluxion of time.
Consequently, this honourable court is divested with the jurisdiction to continue to entertain the matter.”

In response, respondent filed a written address dated 31 March 2016 in opposition to appellants’ preliminary objection.

On 7 June 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 v. Akwara (2006) All FWLR (Pt. 304) 401, (2006) 5 NWLR (Pt. 974) 619 at 654, paragraph 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 sections 36 and 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which accords to every person the right to fair hearing and the right to have their matter not only heard but be determined. See the cases of Yusuf v. Adegoke (2007) All FWLR (Pt. 385) 384, (2007) 11 NWLR (Pt. 1045) 332 at 360, paragraphs F – H and Nospetco Oil & Gas Ltd v. Olorunnimbe (2012) 10 NWLR (Pt. 1300) 115 at 116, paragraphs A-B. …

I therefore hold that paragraph 5.3 of the AMCON Practice Directions, 2013 is inconsistent with the provisions of sections 36 and 294(1) of the Constitution of the Federal Republic of Nigeria (as amended). Accordingly, paragraph 5.3 of the AMCON Practice Directions, 2013 is null 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 suo motu the issue of the inconsistency of paragraph 5.3 of the AMCON Practice Directions, 2013, with sections 36 and 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) for the first time and also decided same without hearing the parties. To this, 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 v. Imade (1992) 1 NWLR (Pt. 219) 511 at 537, paragraphs 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 sections 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 Constitution of the Federal Republic of Nigeria, 1999 (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 July 2016. The relevant briefs of argument for the appeal are as follows:

Appellants’ brief of argument dated 12 October 2016 and filed on 13 October 2016 – settled by Dr. J. O. Olatoke SAN.
Respondent’s brief of argument (incorporating notice of preliminary objection) dated 25 October 2016 and filed on 26 October 2016 – settled by A. B. Sulu Gambari.
Appellants’ reply brief of argument dated and filed on 9 November 2016 – settled by Oludare W. Akanbi, Esq.

The preliminary objection:

Learned counsel for the respondent raised a preliminary objection on the grounds:

That the notice of appeal was filed outside the time prescribed by law.
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, Laws of the Federation of Nigeria, 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 7 June 2006 while the notice of appeal was filed on 22 July 2016 outside the statutory period and without leave of court.

He referred to the case of Owoh v. Asuk (2008) All FWLR (Pt. 429) 446, (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 v. Irona (2008) All FWLR (Pt. 442) 1066, (2009) 4 NWLR (Pt. 1132) 513 at 569; and Yusuff v. Adewuyi Brothers & Co. (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. v. Nweke (2010) All FWLR (Pt. 845) 1 at 26-27; Igunbor v. Afolabi (2001) FWLR (Pt. 59) 1284, (2001) 11 NWLR (Pt. 723) 148; Obuzor v. Ake (2009) 2 NWLR (Pt. 1125) 388 at 421- 422; Omonuwa v. Oshodin and Anor. (1985) 2 NWLR (Pt. 10) 924, (1985) 2 SC 1 at 22; Fidelity Bank Plc v. The 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 v. Abubakar (2011) 5 NWLR (Pt. 1239) 130 at 171; F.H.A. v. Kalejaiye (2010) 12 (Pt. 2) SCM 58 at 68, (2011) All FWLR (Pt. 562) 1633.

In determining the preliminary objection by the respondent, I am bound to reiterate the recent opinion of the Supreme Court in the case of N.A.O.C. Ltd. v. Nweke (2010) All FWLR (Pt. 845) 1 at 26 – 27 where Muhammed JSC relying on dictum of KaribiWhyte (JSC Rtd) in Igunbor v. Afolabi (2001) FWLR (Pt. 59) 1284, (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 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 July 2016 against the decision of 7 June 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 issues for the determination of the appeal as follows:

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 Constitution of the Federal Republic of Nigeria, 1999 (as amended 2011) without inviting parties to address the court on same and without proper parties before it. (Grounds 2 and 3).
Whether the trial court was right when it 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 consequently refusing to dismiss the respondent’s suit having lapsed by effluxion of time. (Grounds 1, 4, 5 and 6)
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 v. 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 Constitution of the Federal Republic of Nigeria, 1999 (as amended) without inviting parties to address the court on same. 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 Bhojson Plc. v. Daniel-Kalio (2006) All FWLR (Pt. 312) 2038, (2006) 5 NWLR (Pt. 973) 330 at 350-351 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 v. Iyortom (2014) All FWLR (Pt. 747) 749, (2014) 14 NWLR (Pt. 1428) 575 at 606 – 607 (per Okoro JSC) and Chami v. United Bank for Africa Plc. (2010) All FWLR (Pt. 520) 1287, (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) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 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 v. 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 Constitution of the Federal Republic of Nigeria, 1999 has occasioned a miscarriage of justice against 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 v. Egbo (2006) All FWLR (Pt. 316) 314, (2006) 5 NWLR (Pt. 973) 316 at 328 – 329 (Per Chukwuma-Eneh JCA as he then was). Also, Bello v. I.N.E.C. (2010) All FWLR (Pt. 526) 397, (2010) 8 NWLR (Pt. 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 apart from joining the Chief Judge.

On this, appellants’ counsel referred to the case of Judicial Service Commission, Cross River State v. Young (2003) 11 NWLR (Pt 1354) 1 at 38, (2014) All FWLR (Pt. 714) 40.

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 by Finnih v. 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 Constitution of the Federal Republic of Nigeria, 1999 (as amended) in voiding paragraph 5.3 of the Practice Directions without inviting parties to address it.

He referred to the cases of Finnih v. Imade (1992) 1 NWLR (Pt. 219) 511 at 537 and Bakare v. Nigerian Railway Corporation (2007) All FWLR (Pt. 391) 1579, (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 v. Egbo (2006) All FWLR (Pt. 316) 314, (2006) 5 NWLR (Pt. 973) 316 at 328 – 329 and Bello v. I.N.E.C. (2010) All FWLR (Pt. 526) 397, (2010) 8 NWLR (Pt. 1196) 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 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 v. Egbo (2006) All FWLR (Pt. 316) 314, (2006) 5 NWLR (Pt. 973) 316 at 328 – 329; and Bello v. I.N.E.C. (2010) All FWLR (Pt. 526) 397, (2010) 8 NWLR (Pt. 1196) 342 are not 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 samein 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 v. United Bank for Africa Plc. (2010) All FWLR (Pt. 520) 1287, (2010) 6 NWLR (Pt. 1191) 474 at 500; Jev v. Iyortyom (2014) All FWLR (Pt. 747) 749, (2014) 14 NWLR (Pt. 1428) 575 at 606 – 607; Bhojsons Plc. v. Daniel-Kalio (2006) All FWLR (Pt. 312) 2038, (2006) 5 NWLR (Pt. 973) 330 at 350 – 351; Gwede v. I.N.E.C. (2014) 18 NWLR (Pt. 1438) 56, (2015) All FWLR (Pt. 767) 615 at 92-93.

On the other hand, the cases of Finnih v. Imade (1992) 1 NWLR (Pt. 219) 511 at 537 and Bakare v. Nigerian Railway Corporation (2007) All FWLR (Pt. 391) 1579, (2007) 7 – 10 SC 50 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 v. Iyortyom 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 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 v. Agbi (2004) All FWLR (Pt. 202) 1799 at 1835; Pan African International Inc. v. Shoreline Lifeboats Ltd (2010) All FWLR (Pt. 524) 56, (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 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 v. Yar’Adua (2010) All FWLR (Pt. 534) 1, (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 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. Nworah & Sons Co. Ltd v. Akputa (2010) All FWLR (Pt. 524) 86, (2010) 9 NWLR (Pt. 1200) 443 at 473; Ukpai v. Okoro and Ors. (1983) 14 NSCC 599 at 613; and Owners of the MV “Arabella” v. N.A.I.C. (2008) All FWLR (Pt. 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 directions has breached the right of the party to fair hearing and therefore null and void.

He referred to the case of Abah v. Robert (1999) 4 NWLR (Pt. 597) 126 at 136 and added on the authority of the case of Waziri v. Damboyi (1999) 4 NWLR (Pt. 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 v. 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 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 A.N.P.P. v. Goni and Ors. (2012) All FWLR (Pt. 623) 1821, (2012) 3 SCM 32 at 53; Shettima v. Goni (2011) 9 SCM 62 at 83, (2012) All FWLR (Pt. 609) 1007; Odofin v. Agu (1992) 2 NWLR (Pt. 229) 350 at 365 – 366; Lado v. C.P.C. (2011) 18 NWLR (Pt. 1279) 689 at 716 – 717, (2012) All FWLR (Pt. 607) 598; Dangana v. Usman and Ors. (2012) All FWLR (Pt. 627) 612, (2012) 4 SCM 55 at 72; Madukolu v. Nkemdilim (1962) 1 All NLR (Pt. 4) 587 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 v. P.D.P. (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 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 v. 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 Constitution of the Federal Republic of Nigeria, 1999 and same is null and void.

He urged us to 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 National Bank of Nigeria Limited v. Shoyoye and Anor. (1977) 2 NSCC 301 at 306 – 307; AttorneyGeneral, Federation v. Guardian Newspaper Limited (1999) 9 NWLR (Pt. 618) 187 at 233, (2001) FWLR (Pt. 32) 87; Afribank (Nig.) Plc v. Akwara (2006) All FWLR (Pt. 304) 401, (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 v. Okoye (2010) All FWLR (Pt. 515) 214, (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 v. Civil Service Commission, Kano State (2010) All FWLR (Pt. 515) 195, (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 A.N.P.P. v. Goni and Ors. (2012) All FWLR (Pt. 623) 1821, (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 Constitution of the Federal Republic of Nigeria, 1999 (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 away the jurisdiction of the court below in determining the suit. See Anyanwoko v. Okoye (2010) All FWLR (Pt. 515) 214, (2010) 5 NWLR (Pt.1188) 497 at 514; Afribank (Nig.) Plc v. Akwara (2006) All FWLR (Pt. 304) 401, (2006) 5 NWLR (Pt. 974) 619 at 654.

The cases of Nwankwo v. Yar’Adua; A.N.P.P. v. Goni and Ors. and Shettima v. Goni 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 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) of the Constitution of the Federal Republic of Nigeria, 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 Constitution of the Federal Republic of Nigeria, 1999 (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 Constitution of the Federal Republic of Nigeria, 1999”.

Based on the above, issue two is resolved against the appellants. Learned counsel for the respondent conceded 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 7 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 N50,000.00 (fifty thousand naira) costs is awarded to the respondent.