Law Reporting

Josco Global Resources v. AMCON: Issues- Summary Judgment, Fair Hearing and Double Compensation

Justice

In The Court Of Appeal
In The Jos Judicial Division
Holden At Jos


Delivered On The 7th Of June, 2018
Before Their Lordships

Adamu Jauro . Justice, Court Of Appeal Uchechukwu Onyemenam Justice, Court Of Appeal Habeeb Adewale. O. Abiru Justice, Court Of Appeal

                        Appeal No Ca/j/77/2017

Between

Josco Ag. Global Resources Limited
Mr. John Bitrus Manget ……….. Appellants

        And

Asset Management Corporation Of Nigeria .. Respondent

Judgment Delivered [By Habeeb Adewale Olumuyiwa Abiru, JCA]

This appeal is against the judgment of the Federal High Court sitting in its Jos Judicial Division and delivered by Honorable Justice D. V. Agishi in Suit No FHC/J/CS/130/2015 on the 14th of April 2016. The Respondent was the claimant in the lower Court and the Appellants were the first and second defendants respectively. The Respondent commenced proceedings in the lower Court by taking out a motion ex-parte dated and filed on the 10th of July, 2015 praying for orders of interim possession of the properties of the Appellants and interim injunction, and orders freezing the accounts of the Appellants in virtually all the Banks in Nigeria, amongst other orders. The lower Court heard and granted the orders sought on the application on the 17th of September, 2015 and it ordered the Respondent to file its substantive claim within fourteen days and it adjourned the matter to the 14th of October, 2015 for mention.

The records of appeal show that the Respondent thereafter filed its substantive claim dated the 6th of October, 2015 against the Appellants on the 7th of October, 2015 and wherein it prayed on the statement of claim for:

  1. An order granting judgment against the first Appellant in the sum of N127,747,620.59 being the debt owing from the first Appellant to the Respondent as at July 17th, 2013.
  1. Interest at the rate of 17% per annum July 17th, 2013 until the date of judgment.
  1. Interest at the rate of 17% per annum from the date of judgment until the judgment debt is fully liquidated.
  1. A declaration that the Debenture on the Fixed and Floating Assets of the first Appellant crystallized upon the default of the first Appellant to fulfill the terms and conditions of the mortgage debenture by liquidating the outstanding credit facilities.
  • An order granting leave to the Claimant to sell and dispose of the immovable property belonging to the first and second Appellants wherever located in satisfaction of the judgment debt.
  • An order of perpetual injunction restraining the first and second Appellants from disposing of their assets, movable and immovable, wherever located by way of sale, transfer or creation of third party interest howsoever until the judgment debt is fully liquidated.
  • The cost of instituting this action.
  • The sum of N10 Million as general damages against the Appellants jointly and severally.

The Respondent accompanied its statement of claim with the written deposition of its witness, the list of documents to be relied on and copies of the documents. The records show that the matter came up in the lower Court on the 8th of December, 2015, and the parties were absent and while Counsel to the Respondent was in Court, there was no appearance for the Appellants. Counsel to the Respondent informed the lower Court that the originating processes were served on the Appellants on the 9th of October, 2015 and he urged the Court to enter judgment in favour of the Respondent as the Appellants had not filed any process in response. The records show that the lower Court declined the application of the Counsel to the Respondent and it adjourned the matter to the 19th of January, 2016 with a directive that hearing notice be served on the Appellants.

The records show that the matter next came up on the 1st of February, 2016 and the parties were absent and while Counsel to the Respondent was in Court, there was again no appearance for the Appellants and the lower Court adjourned the matter to the 17th of February, 2016 and ordered service of hearing notice. The records show that on the 9th of February, 2016, the Respondent filed a motion on notice for summary judgment against the Appellants in the terms of its claims on the ground that the Appellants had no defence thereto and it attached to the application copies of affidavits of service of court processes and of hearing notices issued by the lower Court on the Appellants. Copies of hearing notices and affidavits of service of court processes were compiled as part of the additional records of appeal. The records show that when the matter came up on the 17th of February, 2016, parties were again absent, but were represented by Counsel; a Counsel, D. J. Goki, holding the brief of M. D. Karshina, appeared for the Appellants. Mr. Goki informed the lower Court thus:

“That is the position we have written a letter admitting part of the claim. We have equally written a letter to the Registrar of this Court which we filed. The letter is dated 13/2/2016 which we filed. We have also written a proposal as to the mode of payment in respect of their claim ‘A’ as contained in their statement of claim.”

The letter referred to by Mr. Goki was compiled as part of the additional records of appeal. It was written by the law firm of Tunbosun Oyelade & Company and dated the 13th of February, 2016 and it read thus:

                “The Registrar,

              Federal High Court

              Jos – Plateau State

            Dear Sir,

RE: SUIT NO. FHC/J/CS/130/2015: ASSET MANAGEMENT CORPORATION OF NIGERIA VS JOSCO AG. GLOBAL RESOURCES LIMITED AND MR. JOHN BITRUS MANGET

The above subject matter refers.

We are Solicitors to JOSCO AG. GLOBAL RESOURCES LIMITED AND MR. JOHN BITRUS MANGET hereinafter referred to as “our clients”

Our clients admit claim ‘a’ of the general claim to wit the sum of N127,747,620.59 (One Hundred and Twenty-Seven Million, Seven Hundred and Forty-Seven Thousand, Six Hundred and Twenty Naira, Fifty-Nine Kobo)

Our clients do not admit claims ‘c’, ‘d’, ‘e’ and ‘f’ of the General claim.

Find attached a payment plan.

Please do bring the letter of admission to the attention of the Honorable Judge and Counsel to the Claimant.

Thank you

Signed

M. D. Karshima Esq.”

The payment plan was also written by the law firm of Tunbosun Oyelade & Company and dated the 13th of February, 2016 and it read thus:

                “The Registrar,

              Federal High Court

              Jos – Plateau State

Dear Sir,

RE: SUIT NO. FHC/J/CS/130/2015: ASSET MANAGEMENT CORPORATION OF NIGERIA VS JOSCO AG. GLOBAL RESOURCES LIMITED AND MR. JOHN BITRUS MANGET: PAYMENT PLAN PURSUANT TO ORDER 11:10 OF THE AMCON PRACTICE DIRECTION 2013

The above subject matter refers.

We are Solicitors to JOSCO AG. GLOBAL RESOURCES LIMITED AND MR. JOHN BITRUS MANGET hereinafter referred to as “our clients”

Our clients admit claim ‘a’ of the general claim to wit the sum of N127,747,620.59 (One Hundred and Twenty-Seven Million, Seven Hundred and Forty-Seven Thousand, Six Hundred and Twenty Naira, Fifty-Nine Kobo)

Our clients do not admit claims ‘c’, ‘d’, ‘e’ and ‘f’ of the General claim.

We propose to make payment in respect of claim ‘a’ of the claimant’s claim in 18 installments of 18 months to wit:

  1. N7,097,090 (Seven Million, Ninety Seven Thousand Ninety Naira) only monthly.
  2. Payment shall commence from April 2016 to September 2017.
  3. Payment shall be made on every 30th day of month 

Please do bring this payment plan to the attention of the Honorable Judge and Counsel to the Claimant.

Thank you

Signed

M. D. Karshima Esq.”

The records show that while Counsel to the Respondent welcomed the admission by the Appellants of the first claim, he rejected the proposed payment plan and urged the lower Court to allow him move his motion for summary judgment. The records show that the lower Court obliged Counsel to the Respondent and Counsel moved the motion and at the conclusion of which Counsel to the Appellants, Mr. Goki, reaffirmed the fact that they had written a letter to the lower Court in line with the Practice Direction and the lower Court adjourned the matter for judgment. The lower Court entered judgment wherein it granted all the claims of the Respondent and awarded the sum of N1 Million as general damages against the Appellants jointly and severally.

The Appellants were dissatisfied with the judgment and they caused their Counsel to file a notice of appeal dated the 9th of December, 2016 and containing twelve grounds of appeal against it. The records of appeal were compiled and transmitted to this Court on the 7th of March, 2017. The Respondent caused to be compiled and transmitted additional records of appeal on the 6th of November, 2017 and the additional records were deemed proper by this Court on the 25th of January, 2018. In arguing the appeal before this Court, Counsel to the Appellants filed a brief of arguments dated the 18th of April, 2017 on the 19th of April, 2017. In response, Counsel to the Respondent filed a brief of arguments, incorporating a preliminary objection, dated the 22nd of January, 2018 on the 23rd of January, 2018 and the brief of arguments was deemed proper by this Court on the 25th of January, 2018. Counsel the Appellants filed a reply brief of arguments dated the 5th of February, 2018 on the 6th of February, 2018. At the hearing of the appeal, Counsel to the parties argued the preliminary objection of the Respondent along with the substantive appeal and they relied on and adopted the arguments contained in their respective briefs of arguments.

The Court will start its deliberations in this appeal from notice of preliminary objection of the Respondent. The contention of the Respondent in the preliminary objection is that the appeal as presently constituted is incompetent in that the judgment appealed against was in the nature of a consent judgment and the Appellants did not obtain leave to appeal against it. Counsel stated that this is contrary to the provisions of section 241(2)(c) of the 1999 Constitution, as amended, which provides that an appellant shall not have a right of appeal against a decision of the High Court made with the consent of the parties, without leave of either the High Court or of this Court. Counsel conceded that the Appellants did seek leave of this Court to appeal against the judgment of the lower Court but stated that the leave was not sought to appeal against the judgment as a consent judgment.

Counsel stated that the judgment of the lower Court met all the requirements of a consent judgment in view of the written and oral admissions made on behalf of the Appellants by their Counsel in open Court and he referred to the case of Manson Vs H. E. S. (Nig) Ltd (2007) All FWLR (Pt 358) 1067 where the criteria for determining whether parties have reached a consent judgment was set out by this Court. Counsel stated that the failure to obtain the required leave to appeal rendered the appeal incompetent and he referred to and quoted copiously from the case of Samba Petroleum Company Ltd Vs FCMB (2013) LPELR 21874(CA). Counsel stated that the rationale for requiring for the leave to appeal against such a judgment is that an appellant is expected to establish cogent and compelling reasons why he should be allowed to appeal and that where he fails to establish the existence of any compromise, fraud, mistake and/or a misconception on the part of the parties or the Court, he is barred from complaining against the judgment and he referred to the cases of Uddoh Vs Uddoh (2009) LPELR 8082(CA) and Vulcan Gases Ltd Vs Gesellschaft Fur Ind. Gasverwertung AG (2001) LPELR 3465(SC). Counsel urged the Court to uphold the preliminary objection and to strike out the appeal.

In response, Counsel to the Appellants stated that Counsel to the Respondent overlooked a fundamental issue of the non-service of the originating processes on the Appellant which partly constitutes the kernel of the appeal and that non service of originating process goes to the root of a matter and that a party that was not served cannot be said to have admitted the claim against him and he referred to and quoted from the case of Mark Vs Eke (2004) 5 NWLR (Pt 865) 54. Counsel stated further that a perusal of the records of appeal show that there was no consent judgment and that the lower Court entered judgment pursuant to a motion for summary judgment and it stated that the judgment was entered in favour of the Respondent upon a satisfactory consideration of the submissions and arguments of its Counsel, and not on the basis of any admission on the part of Counsel to the Appellants.

Counsel stated that, any way, the Appellants did seek for and obtain leave of this Court to appeal vide a motion on notice filed on the 10th of November, 2016 and granted on the 30th of November, 2016, without objection from the Respondent, and that that leave was more than sufficient to sustain the appeal. Counsel stated that additionally, the purported admission of the claim of the Respondent by the Appellants vide their Counsel’s letter dated 13th of February, 2016 was invalid and ineffective because the letter which was unattached to a court process was not properly before the lower Court and cannot thus constitute an admission and he referred to the case of Zakirai Vs Mohammed (2017) 17 NWLR (Pt 1594) 181. Counsel stated that, again, the right of appeal is a constitutional matter and cannot be emasculated on a very flimsy excuse and he referred to the case of Anachebe Vs Ijeoma (2014) 14 NWLR (Pt 1426) 168. Counsel urged the Court to dismiss the notice of preliminary objection.

The entire preliminary objection of the Respondent was erected around the belief that the judgment entered by the lower Court was a consent judgment. Now, consent judgment is defined as a judgment, the provisions and terms of which are settled and agreed to by the parties to the action, or better still, as an agreed judgment, a settlement that becomes a court judgment when the Judge sanctions it – Lamurde Vs Adamawa State Judicial Service Commission (1999) 12 NWLR (Pt 629) 86, Afegbai Vs Attorney General, Edo State (2001) 14 NWLR (Pt 733) 425, Dana Impex Ltd Vs Awukam (2006) 3 NWLR (Pt 968) 544, Ibeto Vs Aminu (2007) 5 NWLR (Pt 1028) 446. In Adedeji Vs Oloso (2007) 5 NWLR (Pt 1026) 123, the Supreme Court stated that:

“A consent judgment means when the parties unequivocally agree to Terms of Settlement which they mutually refer to the court as a basis for the court’s judgment. By their mutual agreement to settle the matter, they have given their consent to end the litigation. That makes it a consent judgment.” 

In Union Homes Savings & Loans Limited Vs CPL Industries Limited (2009) LPELR 8154(CA), Agbo, JCA, put the point thus:

“Parties to a dispute in court are entitled to determine the dispute in agreed terms. Such agreed terms may on their demand be entered by the trial court as its judgment. It is such a judgment that is referred to as ‘a consent judgment.’ A consent judgment is therefore a contractual agreement between parties to a dispute inter se determining the rights and claims in dispute and given the final authority and force of the judgment of a court of law.”

In AbdulKarim Vs Incar (Nig) Ltd (1992) NWLR (Pt 251) 1, the Supreme Court expanded the frontiers of consent judgment to include submission to judgment or admission of claim or conceding to a claim. Nnaemeka-Agu, JSC, made the point thus:

“Now, it is recognized that the word “consent” has at least two shades of meanings. It could be used in the narrow technical sense with reference to a consent judgment or order in which the parties, irrespective of their claims and contentions in a case, agree to strike a compromise embodied in an agreement signed by the parties and subsequently made an order of Court. … This type of judgment or order is not based on any findings of Court or the merit of the party’s case on issues in litigation in the case. It is based solely on what the parties themselves have agreed. There is also the broad sense in which the word “consent” is used to qualify a judgment or other decision to which a party submits mainly because he cannot resist it: he has nothing to offer against it but he may not necessarily have agreed to it. Both types of judgments or orders are consent judgment/orders all the same. …”

The question that arises in the instance case is whether the judgment entered by the lower Court comes within these definitions of consent judgment? Looking at the narrative of what transpired in the lower Court and leading up to the entry of judgment in favour of the Respondent, as contained in the earlier part of this judgment, it is obvious that the judgment was not predicated on a Terms of Settlement agreed to and executed between the parties. Thus, it does not come within the first, narrow and more common definition of consent judgment. With regards to the second and broader definition of the phrase, the records show that the Respondent sought for eight reliefs on its general claim before the lower Court. The Appellants through their Counsel only admitted the first claim, and even then proposed a repayment plan spread over eighteen months, and repayment plan showed that Appellants did so in accordance with the provisions of the Order 11:10 of the AMCON Practice Directions of 2013.

Counsel to the Respondent welcomed the admission of the first claim, but rejected the repayment plan and insisted on having judgment on seven of the eight reliefs claimed and he requested that he be allowed to move the Respondent’s motion for summary judgment. The lower Court granted the request of Counsel to the Respondent and Counsel moved the motion and at the conclusion of which Counsel to the Appellants reiterated his position that the Appellants were only admitting the first claim and on the terms of the proposed repayment plan. The lower Court in entering judgment did not base it on a submission to judgment or admission of claim or concession on the part of the Appellants, but rather on the arguments and submissions of Counsel to the Respondent on the motion for summary judgment and from which it surmised that the Appellants had no defence to the claims of the Respondent. The lower Court did not limit the reliefs granted to the first claim admitted by the Appellants, but it went ahead to grant all the reliefs claimed by the Respondent and it made an award of N1 Million as general damages.

It is clear from the reasoning, finding and terms of the judgment of lower Court that it does not come within the second definition of consent judgment. The judgment of the lower Court was not a consent judgment and as such the substratum upon which the Respondent predicated its preliminary objection did not exist. The preliminary objection was completely misconceived and it is without merit and it is hereby dismissed.

Going to the substantive appeal, Counsel to the Appellants distilled four main issues and one alternative issue for determination in the appeal. These were:

  1. Whether the learned trial Judge had the jurisdiction to enter summary judgment in favour of the Respondent including award of pre and post judgment interest of 17% per annum pursuant to motion on notice dated and filed on 9th day of February, 2016 more than three months after the case was started when the conditions precedent for the exercise of jurisdiction including but not limited to service/proper service of the said Motion/Originating processes, initiation of claim by due process, payment of filing fees, contentious and unproven reliefs were not fulfilled.

Alternatively

Whether the judgment of the learned trial Judge delivered on the 14th day of April 2016 granting all the reliefs of the Respondent including award of pre and post judgment interest of 17% per annum more than three months after the case was started is not irredeemably void and/or altogether a nullity for want of or in excess of jurisdiction.

  1. Whether the learned trial Judge denied fair hearing to the Appellants in gross violation of section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) by entering summary judgment against the Appellants without concrete or valid proof of service of either the originating processes to wit, General Claim and Statement of Claim or motion on notice dated 9th of February, 2016.
  1. Whether the learned trial Judge was right in holding that the Appellants were actually served with the originating processes and hearing notice severally thereby faulting the Appellants for not filing statement of defence and arriving at the conclusion that the Appellants orally admitted part of the claim to the tune of N127,747,620.59 as debt owing to the Respondent as at July 17, 2013 and that 17% interest per annum and other expenses also accrued to push up the total debt beyond the admitted sum.
  1. Whether the award of N1 Million as general damages against the Appellants and in favour of the Respondent is not tantamount to double compensation.

It is settled law that the purpose of issues for determination in an appeal is to enable the parties narrow the issues in the grounds of appeal filed. An issue for determination is simply a combination of facts and circumstances including the law applicable thereto which when decided one way or the other by the court affects the fate of the appeal – Ali Vs Osakwe   (2011) 7 NWLR (Pt 1245) 68, Nadabo Vs Dabai (2011) 7 NWLR (Pt 1245) 155, Daniel Tayar Transport Enterprises Nigeria Company Ltd Vs Busari (2011) 8 NWLR (Pt 1249) 387. It must be stated, with respect to the learned Senior Counsel to the Appellants, that the first three issues for determination formulated are narratives and they lack all the distinctive qualities of a well crafted issue for determination. It is trite that the characteristics of a well drafted issue for determination in a brief of argument are precision, brevity, accuracy and clarity – Uwaifo Vs Uwaifo (2005) 3 NWLR (Pt 913) 479, Iloabachie Vs Iloabachie (2005) 13 NWLR (Pt 943) 695, Maishanu Vs Manu (2007) 7 NWLR (Pt 1032) 42. An issue for determination must be concise and devoid of irrelevant complexities and frivolities and must be such as to ease the comprehension of matters to be adjudicated upon by the court – Ezeugo Vs State (2013) 9 NWLR (Pt 1360) 508, Central Bank of Nigeria Vs Nigeria Deposit Insurance Corporation (2016) 3 NWLR (Pt 1498) 1. The first three issues for determination formulated by the Appellants are verbose, confused and confusing.

On his part, Counsel to the Respondent similarly formulated four issues for determination and these were:

  1. Whether based on the letter dated 13th February 2016 and contained on page 13 of the additional record of appeal, the Appellants admitted owing the Respondent herein.
  1. Whether based on the admission in Issue 1 above, the Appellants did consent to the judgment of the Federal High Court Jos delivered on the 14th of April, 2016 in Suit No FHC/J/CS/130/2015.
  1. If answers to Issues 1 and 2 above are in the affirmative, whether the Appellants are not estopped from appealing the judgment of the Federal High Court Jos delivered on the 14th of April, 2016 in Suit No FHC/J/CS/130/2015.
  1. Whether upon the admission and/or appearance in Court by Counsel to the Appellants, the Appellants have the right to complain of any procedural irregularity emanating from the judgment of the lower Court.

Now, one of the most firmly established principles of appellate Court practice is that issues for determination formulated for resolution in an appeal must arise from, relate to and be connected with the grounds of appeal filed in that appeal, and that where they do not so arise from, relate to or connect with the grounds of appeal, they are incompetent and must be discountenanced – Lewis Vs United Bank for Africa Plc (2016) 6 NWLR (Pt 1508) 329, Salisu Vs Mobolaji (2016) 15 NWLR (Pt 1535) 242, Lau Vs Peoples Democratic Party (2017) LPELR 42800(SC). The Courts recognize that a respondent in an appeal, who has no cross appeal and has not filed a Respondent’s Notice, can formulate issues for determination in an appeal, but the issues so formulated must arise from the grounds of appeal of the Appellant; he cannot formulate issues for determination outside those grounds of appeal – Economic and Financial Crimes Commission Vs Dada (2016) 1 NWLR (Pt 1494) 567, Nsirim Vs Amadi (2016) 5 NWLR (Pt 1504) 42.

The Respondent herein did not file a cross appeal or a Respondent’s Notice and it was thus incumbent on it to ensure that the issues it desired to formulate for determination in this appeal arose from the grounds of appeal of the Appellants. The first three issues for determination formulated by Counsel to the Respondent do not relate to or have any connection with the grounds of appeal of the Appellant. They were raised in vacuo and are extraneous and they are thus irrelevant and incompetent – Amadi Vs Attorney General, Imo State (2017) LPELR 42013(SC), Nweze Vs State (2017) LPELR 42344(SC) Poroye Vs Makarfi (2017) LPELR 42738(SC). Moreover, the three issues for determination are of the same tenor and in the same light with the essence of the notice of preliminary objection filed by the Respondent, and which this Court has found to be unmeritorious. The first three issues for determination formulated by the Respondent as well as the arguments canvassed thereon are hereby discountenanced and struck out.

Reading through the records of appeal, the grounds of appeal and the arguments of Counsel to the parties in their respective briefs of arguments, it is the view of this Court that there are three issues for determination in this appeal. These are:

  1. Whether the learned trial Judge had the jurisdiction to enter summary judgment in favour of the Respondent on a strength of a motion on notice filed more than three months after the commencement of the case without the Respondent fulfilling the conditions precedent to the exercise of jurisdiction to wit, service of requisite court processes, initiation of claim by due process and payment of filing fees.
  1. Whether the learned trial Judge did not breach the Appellant’s right of fair hearing when it exercised jurisdiction to hear, determine and make findings on the claims of the Respondent without concrete or valid proof of service of the originating processes and/or of the motion on notice for summary judgment.
  1. Whether the award of N1 Million as general damages against the Appellants and in favour of the Respondent is not tantamount to double compensation.

The appeal will be determined on these three issues for determination and all the arguments of Counsel in the appeal, save the arguments of the Counsel to the Respondent which have been struck out, will be considered there under. The first and second issues for determination will be considered together.

In arguing the first issue for determination, Counsel to the Appellants noted that the Respondent commenced the action by a motion ex parte praying for several interim orders and that upon the grant of the motion ex parte of the Respondent by the lower Court on the 17th September, 2015, the lower Court ordered the Respondent to file its substantive claim within fourteen days. Counsel referred to the provisions of sections 49(3) and 50(2) of the Asset Management Corporation of Nigeria Act of 2004 which both provide that where the Respondent obtains interim orders against a defendant, it shall commence the substantive debt recovery action within fourteen days of obtaining the order. Counsel stated that the word used in the provisions is ‘shall’ and that this is a mandatory auxiliary verb and he referred to the case of Gov., Ekiti State Vs Olubunmo (2017) 3 NWLR (Pt 1551) 1.

Counsel stated that the records of appeal show that the Respondent did not file the substantive action until the 7th of October, 2015, twenty one days after the interim orders were made by the lower Court and that this was in complete defiance of the provisions of sections49(3) and 50(2) of the Asset Management Corporation of Nigeria Act. Counsel stated that these provisions wear the toga of a statute of limitation and that failure of the Respondent to file the substantive action within the specified fourteen days meant that the substantive action was statute barred as at when it was filed and he referred to the case of Egbe Vs Adefarasin (1987) All NLR 1. Counsel stated that additionally by the provision of Paragraph 5.3 of the AMCON Practice Directions of 2013, a substantive action for recovery of debt ought to be concluded within three months of its commencement and that the instant case which was commenced on the 7th of October, 2015 was not concluded until the 14th of April, 2016, when judgment was entered by the lower Court,. Counsel stated that judgment was entered more than six months after the substantive action was commenced and that this rendered the entire proceedings a nullity.

Counsel stated further that Respondent did not pay the requisite filing fees in respect of its claims to the Registry of the lower Court when it filed its substantive action and that the payment of requisite filing fees by a claimant is one of the conditions precedent to the exercise of jurisdiction and that the failure of the Respondent to pay the filing fees deprived the lower Court of jurisdiction and he referred to the cases of Okolo Vs UBN (2004) 1 SCNJ 113 and Bawa Vs Aliyu (2015) 3 NWLR (Pt 859) 523. It was the further argument of Counsel that a careful scrutiny of the originating processes used to commence the substantive action shows that none of them bore the stamp and seal of the supposed legal practitioner that endorsed the processes and that this is contrary to the provisions of Rule 10(1), (2) and (3) of the Rules of Professional Conduct 2007 and that this rendered the originating processes manifestly incompetent and he referred to the case of Yaki Vs Bagudu (2015) 11 SCNJ 1.

Counsel stated that again the originating processes in the matter as well as the motion for summary judgment were not personally and/or properly and validly served on the Appellants in line with the principles of fair hearing and that there was in fact no proof of service of the processes on the printed records that the processes were not personally and/or properly and validly served. Counsel stated that this was fatal to the proceedings and that the absence of valid proof of service of the processes deprived the lower Court of jurisdiction to hear and grant the motion for summary judgment and he referred to the cases of Integrated Builders Vs Domzaq Vent. (Nig) Ltd (2005) 2 NWLR (Pt 909) 97, the unreported decision of this Court in Appeal No CA/J/100/2014 – Covenant Fadama Multi-Purpose Vs Onu decided on the 19th of May, 2016, Ihedioha Vs Okorocha (2016) 1 NWLR (Pt 1492) 147. Counsel stated further that one of the reliefs granted by the lower Court on the motion for summary judgment was a declaratory relief on the crystallization of the Fixed and Floating Debenture of the first Appellant and that it is settled law that a declaratory relief demands evidential proof and it cannot be granted on admission, let alone on a motion for summary judgment and he referred to the cases of Matanmi Vs Dada (2013) 17 NWLR (Pt 1353) 319 and Tukuru Vs Sabi (2013) 10 NWLR (Pt 1363) 442.

Counsel stated that the first claim of the Respondent for the sum of N127,747,620.59 was not substantiated by documentary evidence such as a statement of account showing the incidences of drawdown and that the Respondent did not bother to explain how the sum came about in any of the frontloaded documents and that this failure of the Respondent amounted to withholding evidence and he referred to the case of Ogbonna Vs Ogbuji (2014) 6 NWLR (Pt 1403) 205. Counsel stated that the for the sum of N127,747,620.59 was also studded with material contradictions as the Respondent gave conflicting dates of 17th of July, 2013, 7th of July, 2013 and 13th of July, 2013 as the dates the said debt arose in different paragraphs of the witness statement on oath and that these crippling contradictions meant that the Respondent did not substantiate the claim.

Counsel stated that the claim for prejudgment interest at the rate of 17% per annum was at large and was not predicated on any disclosed or ascertainable figure and that as such its award by the lower Court was fatally flawed because the law is that prejudgment interest must not only be pleaded, it must be proved by evidence and he referred to the case of UBA Vs Oranuba (2014) 2 NWLR (Pt 1390) 1. On the award of post judgment interest at the rate of 17%, Counsel referred to the provisions of Order 23 Rule 5 of the Federal High Court (Civil Procedure) Rules 2009 and stated that the maximum rate of post judgment interest that the lower Court is empowered to grant is 10% and that the grant of 17% was in excess of the jurisdiction of the lower Court and was thus a nullity and he referred to the case of Estate of Late Chief H. I. S. Idisi Vs Ecodril (2016) 12 NWLR (Pt 1527) 355. Counsel urged the Court to resolve the first issue for determination in favour of the Appellants.

On the second issue for determination, Counsel adopted his arguments on the first issue for determination and stated that there was no evidence before the lower Court that the Appellants were properly served with the either originating processes or the motion for summary judgment and that service of originating processes is a fundamental precondition for exercise of jurisdiction and he referred to the cases of Skenconsult (Nig) Ltd Vs Ukey (1981) 1 SC 6 and Ihedioha Vs Okorocha supra. Counsel stated that the issue of service is not a matter of mere conjecture, but demand exactitude and strict compliance with the mode of service prescribed under the law and that the lower Court was under a duty to meticulously verify the issue of service and not rely on the mere ipse dixit of Counsel and he referred to the cases of Okoye Vs CPMB Ltd (2008) 15 NWLR (Pt 1110) 335 and Skye Bank Plc Vs Okpara (2015) 17 NWLR (Pt 1489) 613. Counsel stated that inspite of the lack of proper service of the processes, the lower Court entered judgment against the Appellants and that this was in clear violation of their right to fair hearing and it rendered the entire proceeding null and void ab initio and he referred to the unreported decision of this Court in Appeal No CA/J/100/2014 – Covenant Fadama Multi-Purpose Vs Onu decided on the 19th of May, 2016 and Ihedioha Vs Okorocha (2016) 1 NWLR (Pt 1492) 147.

Counsel stated further that there was no proof that the originating processes were served on the Appellants personally and that the proof of service in the records of the lower Court merely indicated service on one Abel John who is neither a party to the case nor a director or staff of the first Appellant and there was nothing in records showing that the lower Court made an order of substituted service of the processes. Counsel stated that in the circumstances there was no question of the Appellants filing a statement of defence and they cannot be justifiably accused of having no defence to the claims of the Respondent and that the finding of the lower Court to that effect was erroneous and he referred to the case of Public Finance Securities Ltd Vs Jefia (1998) 3 NWLR (Pt 543) 602. Counsel stated that the issue of the oral admission of the claim of the Respondent for the sum of N127,747,620.59 cannot stand in the circumstances because it is inconsistent with common sense for a party to admit a claim he has no notice of or in respect of which he has not been served. Counsel stated that additionally the claim for N127,747,620.59 was a claim in the nature of special damages that ought to be strictly pleaded and proved and that the case of the Respondent thereon did not meet the necessary legal requirements and he referred to the case of Ahmed Vs CBN (2013) 14 NWLR (Pt 1339) 524. Counsel urged the Court to resolve the second issue in favour of the Appellants.                       

In his response, Counsel to the Respondent stated that the service of all the processes on the Appellants were done according to law and he referred to the provisions of Paragrah 8:8 (c) of the AMCON Practice Directions 2013 which says that service of processes or documents requiring personal service on a registered company may be done by leaving it with a responsible person at the registered, principal or advertised office or place of business of the company in the jurisdiction. Counsel stated that service of the originating processes effected on the Mr. Abel John, the brother of the second Appellant, was done in accordance with these provisions and it is good service in the absence of proof by the Appellants that the said Abel John is not a responsible person. Counsel also referred to the provisions of Paragraph 8:12 (3) and (4) and stated that that a Court was allowed to proceed without proof of service if the party to be served or its Counsel admits service or has a copy of the document, or attends Court in apparent response to the document served and has a copy of the document, even if the service was not in accordance with the Rules.

Counsel referred to the letter written by Counsel to the Appellants to the Registrar of the lower Court and dated 13th of February, 2016 contained in the records wherein the Appellants admitted the principal claim and denied the other claims as contained of the General Claim and Statement of Claim and stated that this shows that the Appellants were duly served with the processes. Counsel stated that Counsel to the Appellants wrote the letter of the 13th of February, 2016 and also appeared in Court on the 17th of February, 2016 in response to the motion on notice filed and served on the Appellants on the 9th of February, 2016 and that it thus did not lie in the mouth of the Appellants to complain that they were not served with the originating processes and the motion on notice. Counsel stated that AMCON proceedings are a specialized form of proceeding with its special rules governing its operations and that Rules of Court would only apply where there is a gap in the AMCON Practice Directions and that no such gap existed on the issue of service in these proceedings.

Counsel stated, on the award of 17% as pre and post judgment interest, that this was the rate of interest at which the term loan was offered by the Bank and which rate the Appellants accepted, and he referred to the loan documents in the records of appeal. Counsel stated that it is the law that the admission of a claim for a specified amount should include calculation of interest and that the contention of Appellants in this appeal is an attempt to vary the terms of the term loan granted at 17% interest and they cannot be allowed to do so. Counsel stated that by their Counsel’s letter admitting the principal debt and their appearance of their Counsel in Court, the Appellants, in the absence of proof of lack of authority on the part of their Counsel, waived all rights to complain of denial of an opportunity to be heard or of irregularity in the procedure in the lower Court and he referred to the cases of Auto Import Export Vs Adebayo (2005) LPELR 642(SC) and Ariori Vs Elemo (1983) LPELR 552(SC) on the definition of waiver.

Counsel referred to the case of The Chairman and Members of Customary Court, Mbawsi Vs The State Ex parte Ndimele Nwosu (2014) LPELR 22852(CA) on the presumption of possession of authority of Counsel raised by the appearance of the Counsel for a party in Court and the case of Afegbai Vs AG, Edo State (2001) LPELR 193(SC) on the bindingness of acts of Counsel with apparent authority on a party. Counsel stated that neither in the lower Court nor in this appeal did the Appellants contest the authority of their Counsel to admit liability on their behalf and that they cannot now seek to rescind the authority without establishing fraud, mistake, misrepresentation, surprise or other cogent and sufficient reason and he referred to the case of Vulcam Gases Ltd Vs Gesellschaft Fur Ind. Gasverwertung (2001) LPELR 3465(SC). Counsel urged the Court to resolve the issues for determination in favour of the Respondent.

The points of contention of the learned senior Counsel to the Appellants against the judgment of the lower Court are (i) on the issue of service of the originating processes and the motion on notice for summary judgment on the Appellants; (ii) the failure of the Respondent to commence the substantive action within fourteen days of its obtaining the ex parte interim orders; (iii) the failure of the lower Court to conclude the substantive action within three months; (iv) the failure of the Counsel to the Respondent to affix his seal and stamp to the court processes filed in the lower Court; (v) payment of filing fees on the originating processes; and (vi) non-proving of the claims sought by the Respondent.

Counsel to the Respondent responded to the contentions of the Appellants on service of processes and prejudgment rate of interest and he dismissed the other points of contention saying that the Appellants could no longer raise them by reason their admission of the claims of the Respondent. The records of the appeal show that it was only the first claim of the Respondent that the Appellants admitted. Notwithstanding the failure of the Counsel to the Respondent to respond to the points of contention, this Court still has a duty to interrogate and assess the arguments of Counsel to the Appellants thereon – Oruboko Vs Oruene (1996) 7 NWLR (Pt 462) 555, Eya Vs Olopade (2011) 11 NWLR (Pt 1259) 505 and Independent National Electoral Commission Vs Nyako (2011) 12 NWLR (Pt 1262) 439.      

On service of the originating processes and of the motion for summary judgment, there are affidavits of service in the additional records showing that the originating processes and the motion on notice for summary judgment were served on the Appellants on different dates and the processes were collected by one Mr. Abel John Manget, who described himself as the brother of the second Appellant, and the services were effected at No 18B, New Layout, Bukuru Expressway Jos. Counsel to the Appellants conceded these service of the processes on the Appellants, but argued copiously that the processes were meant to be served personally and that the service effected on Mr. Abel John Manget did not constitute personal service on the Appellants. Counsel stated that the services of the processes were improper and that this went to the root of the case.

The first Appellant in the instant case is an incorporated body and the present state of the law is that the Rules of Court are the only statutory provisions regulating the service of court processes on a corporation or registered company in Nigeria and the provisions must be strictly obeyed in effecting such service – Union Beverages Ltd Vs Adamite Co Ltd (1990) 7 NWLR (Pt 162) 348 and Overseas Union Insurance Ltd & Ors Vs Marine and General Assurance Co (2001) 9 NWLR (Pt 717) 92.

The Respondent, the claimant in the lower Court is the Asset Management Corporation of Nigeria (AMCON). This is an AMCON claim and the relevant Rules of Court are thus the AMCON Practice Directions of 2013. Paragraph 1:3 (1) of the Practice Directions makes it applicable the Rules of Court to all AMCON claims. Paragraph 8:8 of the Practice Directions provides that service of claim forms or other court documents requiring personal service on a registered company, corporation or body corporate may be done in any of the following ways: (a) according to the relevant statute governing service on that kind of organization; (b) by delivery to a director, secretary, trustee or other senior, principal or responsible officer of the organization; (c) by leaving it with a responsible person at the registered, principal or advertised office or place of business of the organization in the jurisdiction, or (d) by sending it to that office or place by courier. The word used in the provisions is “or”, not “and”. The word “or” when used in a statute is a disjunctive participle used to express an alternative or to give a choice of one among two or more things – Aruba Vs Aiyeleru (1993) 3 NWLR (Pt 208) 126 at 141-142 and Abubakar Vs Yar’Adua (2008) 12 SC (Pt II) 1. Thus, the four stated modes of service are disjunctive and any one of the modes is sufficient. Service of the processes effected on Mr. Abel John, the younger of brother of the second Appellant, in absence of proof that he was an irresponsible person at the time of the service, comes within the third mode of service.

More importantly, Paragraph 8:12 (3) and (4) of the Practice Directions provides that a Court may proceed with a matter without proof of service if the party to be served or his Counsel, admits service or has a copy of the document, even if service was not done according the provisions of the Practice Directions or where the party to be served or his Counsel attends Court in apparent response to the document to be served and has a copy of that document. In other words, once the defendant to an AMCON claim or his Counsel admits service of the originating process or of a motion on notice or where the defendant or his Counsel attends Court in apparent response to the process, then the question of service ceases to be an issue, notwithstanding that the service of the processes was not effected in accordance with the provisions of the Practice Directions, and the defendant will be deemed and presumed to have been served with the processes without more, even in absence of affidavit of service. The only commonsensical exception to this position will, of course, be where the defendant or his Counsel attends Court in protest to contest the issue of service.

This position is in consonance with the position taken by case law authorities on the point. In Akande Vs General Electric Company Ltd (1979) LPELR 319(SC), Aniagolu, JSC, explained the position thus:

“The first defendants entered conditional appearance and upon of their failure to get the service of the writ set aside, filed their statement of defence in which they made some admissions relating to an alleged agreement said to have been evidenced by a memorandum in writing. They must be deemed to have waived service – a course which, in law, they are entitled to. In Pike Vs Nairn & Co Ltd (1960) Ch 553 at 560 … Cross, J, stated that ‘The service of the process of the court is made necessary in the interests of the defendant so that orders may not be made behind his back. A defendant, therefore, has always been able to waive the necessity of service and to enter appearance to the writ as soon as he hears that it has been issued against him, although it has not been served on him …’”

In Odua Investment Ltd Vs Talabi (1997) 7 SCNJ 600, the Supreme Court reinforced the position thus:

“… where a defendant is served with a writ of summons in breach of the provisions of sections 97 and 99 of the Sheriffs and Civil Process Act, he has a choice either to object to the service by applying to have it set aside and Court ex debitio justiciae will accede to the application or ignore the defect and proceed to take steps in the matter. By entering unconditional appearance and filing pleadings, a defendant is deemed to have waived his right to object and cannot later in the proceedings seek to set same aside because of the original defect.”  

In Njoemana Vs Ugboma (2014) LPELR 22494(CA), this Court made the point thus:

“… There cannot be a better proof than the appearance in court of the person on whom the process was served. It is common knowledge that parties informed the court of the service of a writ, subpoena, hearing notice, etc on their opponents. In such a case, without the appearance of the person allegedly served or an affidavit of service, the court should be circumspect in such a situation. It is straining the rule of proof of service to say that a defendant who filed a statement of defence to a statement of claim was not served with the writ of summons because there was no bailiff’s endorsement on the writ.”

In United Bank for Africa Vs Effiong (2011) LPELR 8934(CA), it was held that the best proof of service of court process on an adverse party is the unconditional appearance, presence or representation of the person who has been served with the said court process. Similarly, in Dongari Vs Sa’ahun (2013) LPELR 22084(CA), it was held that personal appearance does appear to be the strongest means of proof of service and that where there is no affidavit of service but the person served with the court process appears in court not in protest, then there will be no need for the Court to insist on affidavit evidence in proof of service. See also the cases of Okesuji Vs Lawal (1991) NWLR (Pt 170) 661, Societe Generale Bank (Nig) Ltd Vs Adewunmi (2003) 10 NWLR (Pt 829) 526, International Committee of Red Cross Vs Olabode (2009) LPELR 8764(CA), Nnaji Vs Alozie (2014) LPELR 24014(CA), The MV Courageous Ace Vs Nigerdock Nigeria Plc (2016) LPELR 40223(CA), Zakirai Vs Muhammad (2017) LPELR 42349(SC), Shell Petroleum Development Company (Nig) Ltd Vs Nwagbara (2018) LPELR 43732(CA).

In the instant case, the records of Court show that sequel to the service of the originating processes, i.e. the general claim form and the statement of claim with the accompanying processes on Abel John Manget on the 9th of October, 2015, and the service of the motion on notice for summary judgment on the same person on the 9th of February, 2016, Counsel to the Appellants wrote a letter dated the 13th of February, 2016 to the Registrar of the lower Court as well as a notice of admission of part of the claim made pursuant to Paragraph 11:10 and 11 of the Practice Directions. In both the letter and the notice of admission, the Appellants admitted the first claim of the Respondent on the originating processes, and it denied the other claims thereon. These admission and denial in the letter and in the notice of admission confirmed the receipt of and knowledge of the contents of the originating processes by the Appellants and the fact that they were in possession of the process. Additionally, reading through Paragraph 11 of the Practice Directions, the filing of a notice of admission by a defendant under Paragraph 11:10 and 11 presupposes, and it is predicated on, the receipt of the originating processes and of a motion for summary judgment filed by a claimant. Thus the notice of admission filed by the Appellants was another affirmation that they were in receipt of the originating processes and of the motion for summary judgment.

Again, on the 17th of February, 2016 when the matter came up for the hearing of the motion on notice for summary judgment, Counsel to the Appellants made an unconditional appearance in Court and he neither complained of nor raised the issue of non-service of either the originating processes or of the motion for summary judgment. Counsel referred to the letter and notice of admission he wrote on behalf of the Appellants to the Registrar of Court and affirmed the admission of the first claim made therein. Counsel did not protest against the hearing of the motion for summary judgment by the lower Court. What these say is that the Appellants were duly served with the originating processes and the motion on notice for summary judgment in accordance with the provisions of the Practice Directions and that the lower Court was at liberty to so find, even if there was no affidavit of service in court’s file. Also, that the Appellants having unconditionally appeared before the lower Court by Counsel in response to the processes and admitted a part of the claim, they can no longer be heard to complain of improper service of the processes – Forby Engineering Company Ltd Vs Asset Management Corporation of Nigeria (2018) LPELR 43861(CA). The contention of Counsel to the Appellants on the point was thus very misconceived.

On the failure to commence the substantive action within fourteen days of the ex parte interim orders, Counsel to the Appellants stated that the lower Court granted the interim ex parte orders on the 17th of September, 2015 and that the Respondent, contrary to the provisions of section 49 and 50 of the AMCON Act, failed to commence the substantive until the 9th of October, 2015, outside the fourteen day period stipulated in the provisions. Counsel submitted there from that the substantive action was thus incompetent. Now, section 49 of the AMCON Act reads:

“1.       Where the Corporation has reasonable cause to believe that a debtor or debtor company is the bona fide owner of any moveable or immovable property, it may apply to the Court by motion ex-parte for an order granting possession of the property to the Corporation.

2.        The Corporation shall serve a certified true copy of the order of the Court issued pursuant to subsection (1) of this section on the debtor or debtor company.

3.        The Corporation shall commence debt recovery action against the debtor or debtor company in respect of whose property an order subsists pursuant to subsection (1) of this section within 14 days from the date of the order, failing which the order shall lapse.”

Section 50 of the Act reads:

“1. Where the Corporation has reasonable cause to believe that a debtor or debtor company has funds in any account with any eligible financial institution, it may apply to the court by a motion ex-parte for an order freezing the debtor or debtor company’s account.

  • The Corporation shall commence debt recovery action against the debtor or debtor company whose account has been frozen by a Court order issued under subsection (1) of this section within 14 days from the date of the order, failing which the order shall lapse.”

The principles of interpretation of statute are so well established that they have become elementary and rudimentary. It is trite that in interpreting a statute, the duty of a Court is to consider the words used in order to discover their ordinary meaning, and then give use their ordinary meaning as they relate to the subject matter – Merill Guaranty Savings & Loans Ltd Vs Worldgate Building Society Ltd (2013) 1 NWLR (Pt 1336) 581, Gbagbarigha vs Toruemi (2013) 6 NWLR (Pt 1350) 289, Commissioner for Education, Imo State Vs Amadi (2013) 13 NWLR (Pt 1370) 133. And in doing so, a court should adopt a holistic approach and interpret the provisions dealing with a subject matter together to get the true intention of the law makers – Abia State University, Uturu Vs Otosi (2011) 1 NWLR (Pt 1229) 605, Ayodele Vs State (2011) 6 NWLR (Pt 1243) 309, National Union of Road Transport Workers Vs Road Transport Employers Association of Nigeria (2012) 10 NWLR (Pt 1307) 170, Attorney General, Federation Vs Attorney General, Lagos State (2013) 16 NWLR (Pt 1380) 249.

The Court must also not add to or take from the provisions unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express – Attorney General, Federation Vs Attorney General, Lagos State (2013) 16 NWLR (Pt 1380) 249,Federal Republic of Nigeria Vs Bankole (2014) 11 NWLR (Pt 1418) 337. Applying these principles to the provisions of sections 49 and 50 of the AMCON Act, it is very clear that the penalty for a failure to commence the substantive action within fourteen days of obtaining the ex parte interim orders is that the lifespan of the interim orders will lapse. It has nothing to do with the competence of the substantive action so commenced. This position is not altered by the fact that the lower Court, in making the interim order, directed the Respondent to file the substantive action within fourteen days. The directive was given in compliance with Paragraph 13:2 (3) of the Practice Directions and in furtherance of the provisions of sections 49 and 50 of the AMCON Act. Thus, the failure of the Respondent to commence the substantive action within fourteen days of the interim ex parte did not render the substantive action incompetent. The submission of Counsel to the Appellant on the point amounted to reading words into the provisions of the sections 49 and 50 of the AMCON Act and it was also not well founded.

On the duration of the substantive action in the lower Court, Counsel to the Appellant submitted that by the provisions of Paragraph 5:3 of the Practice Directions, the action in the lower Court ought to have been commenced and concluded within three months, but that the present action lasted over six months in the lower Court. Counsel stated that the lower Court ceased to have jurisdiction to adjudicate on the matter on the expiration of three months after its commencement and that as such the judgment was given without jurisdiction. Now, it is correct as stated by Counsel that Paragraph 5:3 of the Practice Directions directs that a substantive action for recovery of debt should be commenced and concluded within three months. The issue of the effect of non-compliance with this provision is, however, not new and has come before the Courts. The position taken is that the jurisdiction of the trial Court to hear and determine a debt recovery action is donated by the Constitution of the Federal Republic of Nigeria 1999, as amended, and as well as the AMCON Act and that such jurisdiction cannot be limited, robbed, taken away by Paragraph 5:3 of the Practice Directions. Thus, non-completion of an action within three months did not take away, dent or affect the jurisdiction of the trial Court to hear and determine the matter in any way – Asset Management Corporation of Nigeria Vs Ogai Investment Co Ltd (2017) LPELR 42004(CA), Odejide Vs Asset Management Corporation of Nigeria (2017) LPELR 42005(CA). The submission of Counsel to the Appellant on this point does not represent the position of the law.  

On the failure of Counsel to the Respondent to affix his stamp and seal on the originating processes in compliance with Rule 10 (1), (2) and (3) of the Rules of Professional Conduct 2007, Counsel to the Appellants stated that it rendered the processes incompetent. Again, this argument is not new. The present position of the law on the point is that non-compliance with Rule 10 (1), (2) and (3) of the Rules of Professional Conduct 2007 is a mere irregularity that can redeemed by a party and that it does not render the court process incompetent – Mega Progressive Peoples Party Vs Independent National Electoral Commission (No 1) (2015) 18 NWLR (Pt 1491) 207, Nyesom Vs Peterside (2016) 7 NWLR (Pt 1512) 452 where the Supreme Court explained the purport of its earlier decision in Yarki Vs Bagudu (2015) All FWLR (Pt 810) 1026, Folorusho Vs Federal Republic of Nigeria (2017) LPELR 41972(CA). Thus, a party desirous of complaining about the failure to affix stamp and seal on a document must do so within a reasonable time and when he has not taken any fresh step in the proceedings, after being served with the processes, otherwise he would be barred from making the complaint – Nyesom Vs Peterside supra, Garba Vs State (2017) LPELR 43348(CA).

This is in furtherance to the general principle of law that matters of irregularity must be raised by a party at the earliest opportunity upon being served with the court process and before taking any further step in the matter, otherwise he will be deemed to have waived the irregularity and be foreclosed from raising it again – Ndayako Vs Dantoro (2004) 13 NWLR (Pt 889) 187, Nagogo Vs Congress for Progressive Change (2013) 2 NWLR (Pt 1339) 448, Udo Vs The Registered Trustees of the Brotherhood of the Cross & Star (2013) 14 NWLR (Pt 1375) 488, Ediru Vs Federal Road Safety Commission (2016) 4 NWLR (Pt 1502) 209, Akahall & Sons Limited Vs Nigeria Deposit Insurance Corporation (2017) LPELR 41984(SC). The Appellants did not raise this point in the lower Court upon being served with the said processes and they took steps in the proceedings by writing a letter and a notice admitting part of the claims contained in the processes and by appearing in Court thereon. They cannot raise the issue any longer in this Court.

It was also the contention of Counsel to the Appellants that the Respondent did not pay the requisite filing fees on the originating processes and that as such the processes were incompetent and that the lower Court thus lacked jurisdiction to adjudicate on them. A look through the records of appeal shows that the originating processes and the accompanying documents did not carry on their faces evidence of the sum paid as filing fees, but they were duly certified by the officer of the lower Court as copies of the processes filed therein. The certification raises the presumption of regularity in favour of the documents. The presumption of regularity is a principle of evidence that postulates that transactions made in the normal course of business are assumed to have been conducted in the usual manner unless there is evidence to prove otherwise and that where it is shown that an official act has been done, it will be presumed, until the contrary is shown, that the act complied with all the necessary formalities for its validity.

The presumption is provided for in section 168 (1) of the Evidence Act and it is expressed in the common law maxim omnia praesumuntur rite et sollemniter esse acta donec probetur in contrarium – all things are presumed to have been rightly and regularly done, until the contrary is proved – Ogbuanyinya Vs Okudo (No. 2) (1990) 4 NWLR (Pt 146) 551, Shitta Bey Vs Attorney General of the Federation (1998) 10 NWLR (Pt 570) 392, Amala Vs The State (2004) 12 NWLR (Pt 888) 520, Ugwu Vs State (2013) 14 NWLR (Pt 1374) 257. The law is that the presumption is rebuttable only by contrary evidence and the onus is on the party alleging the contrary to rebut it – Barewa Pharmaceuticals Ltd Vs Federal Republic of Nigeria (2016) 17 NWLR (Pt 1540) 63, Abiodun Vs Federal Republic of Nigeria (2016) 17 NWLR (Pt 1542) 462, Ilori Vs Ishola (2018) LPELR 44063(SC). And to rebut the presumption, the party must lead cogent, credible and acceptable evidence, and it cannot be rebutted by presumptuous postulations or rhetorical questions – Udom Vs Umana (No 1) (2016) 12 NWLR (Pt 1526) 179. The Appellants led no evidence to rebut the presumption of regularity in the instant case in favour of the proper filing of the originating processes and the submission of their Counsel thereon amounted to nothing but presumptuous postulations. The contention of the Appellants on the point must thus fail.

The final contention of Counsel to the Appellants is that the lower Court was in error to have granted summary judgment in respect of claims that required proof by oral evidence. Counsel stated that the claim for the sum of N127,747,620.59 as the outstanding debt due from the Appellants was a claim in the nature of special damages requiring strict proof. Counsel said that the claim for 17% prejudgment interest was one that must be proved by oral evidence and that the lower Court was wrong to have awarded a declaratory relief without proof by oral evidence. Counsel also complained about the award of post judgment interest at the rate of 17%.

It is settled that the whole purpose of a summary judgment procedure is to ensure justice to a plaintiff and minimize delay where there is obviously no defence to his claim and thus prevent the grave injustice that might occur through a protracted and immensely frivolous litigation. It is to prevent sham defence from defeating the right of a plaintiff by delay and thus causing great loss to a plaintiff. In other words, the summary judgment rules are specially made to help the court achieve their primary objective, i.e. to do justice to the parties by hearing their cases on the merit with utmost dispatch and prevent the frequent outcry that justice delayed is justice denied – United Bank for Africa Plc Vs Jargaba (2007) 11 NWLR (Pt 1045) 247, University of Benin Vs Kraus Thompson Organisation Ltd (2007) 14 NWLR (Pt 1055) 441. The AMCON Practice Directions provides for the summary judgment procedure in its Paragraph 11.

The summary judgment procedure is best suited for liquidated money demands. The learned authors of the Black’s Law Dictionary defined a liquidated money demand as “a claim for an amount previously agreed on by the parties or that can be precisely determined by operation of law or by the terms of the parties’ agreement.” In Alhaji Muktari Uba & Sons Ltd Vs Lion Bank of Nigeria Plc (2006) 2 NWLR (Pt 964) 288, a liquidated money demand was defined ‘as a claim or demand in which the amount is fixed, or has been agreed upon or is capable of ascertainment by mathematical computation or operation of law’. In Maja Vs Samouris (2002) 7 NWLR (Pt 765) 78, the Supreme Court stated that a liquidated demand is a debt or other specific sum of money usually due and payable and its amount must be already ascertained or capable of being ascertained as a mere matter of arithmetic without any other or further investigation and that whenever, therefore, the amount to which a plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said to be ‘liquidated’ or made clear.

The sum of N127,747,620.59 claimed by the Respondent was for outstanding debt due from the Appellants on a loan advanced to them on agreed terms. This is clearly a liquidated demand. Moreover, the Appellants admitted the sum as the debt due from them to the Respondent on the said loan, both in writing and orally in open Court through their Counsel. It is settled law that once a debt is admitted, judgment should be entered for the sum admitted irrespective of other considerations that may crop up – Nneji Vs Chukwu (1988) 3 NWLR (Pt 81) 184, Asaba Textile Mills Ltd Vs Bona V. Textile Ltd (2007) 1 NWLR (Pt 1015) 259, Ogunsola Vs Adeyemi (2008) 14 WRN 96. No further evidence to prove the debt is required – Dunlop Nigeria Plc Vs Gaslink Nigeria Ltd (2018) LPELR 43642(CA), Alhaji Hassan Bello & Sons Ltd Vs Zenith Bank Plc (2018) LPELR 43792(CA). This is because an admission of debt is a solemn declaration of indebtedness of the defendant to the plaintiff in the sum admitted – Akaninwo Vs Nsirim (2008) 9 NWLR (Pt 1093) 439. The lower Court was thus in order when it entered judgment for the sum under the summary judgment procedure.

With respect to the claim for prejudgment interest of 17% per annum on the debt, a read through the documents attached to the originating processes reveals two letters dated the 29th of January, 2008 and 20th of April, 2008 by which the loan leading up to the present action was offered to the Appellants and containing the terms of the offer. The loan was offered to the Appellants at 17% interest per annum and the terms of the offer were accepted by the Appellants. The law is that a claim for interest at the agreed rate in case of default in repayment of a loan constitutes a liquidated demand in such circumstances. In Maja Vs Samouris supra, the Supreme Court, speaking on what amounts to a liquidated demand, stated further that where the parties to a contract, as part of the agreement between them, fix the amount payable on the default of one of them or in the event of breach by way of damages, such sum is classified as liquidated damages where it is in the nature of a genuine pre-estimate of the damage which would arise from breach of the contract so long as the agreement is not obnoxious as to constitute a ‘penalty’ and it is payable by the party in default. In Minaj Holdings Ltd Vs Asset Management Corporation of Nigeria (2017) LPELR 24650(CA), this Court held that such an agreed interest rate can be claimed as prejudgment interest rate under the summary judgment procedure without further proof by oral evidence. This Court stated in the judgment thus:

“The law is that interest can only be paid if it forms part of the contract. It must also be expressly pleaded and proved. In this case, interest was part of the terms of the contract, expressly written and pleaded. The document Facility Restructuring Agreement was pleaded and attached as Exhibit M2 in the originating summons.

The argument of the Appellant does not, therefore, hold water. Interest was expressly made a term of the document, Exhibit M2. It was also part of the pleadings as it was attached as one of the documents attached to the originating summons.

The Courts can only interpret the express terms of contracts entered into by parties. The Court cannot and must not allow parties to vary such terms. The Court can also not allow parties to renege on the terms of their contracts freely entered into.

The Respondent is entitled to the interest rate in the terms of the contract signed by the Chairman of the Appellant.”

The award of the prejudgment rate of interest of 17% per annum by the lower Court cannot thus be faulted.

One of the claims of the Respondent, and in respect of which the lower Court entered judgment, was for a declaration that the Debenture on the Fixed and Floating Assets of the first Appellant crystallized upon the default of the first Appellant to fulfill the terms and conditions of the mortgage debenture by liquidating the outstanding credit facilities. Counsel to the Appellants argued that the claim being a declaratory relief required evidential proof wherein facts are ventilated and cannot be granted on admissions let alone on a motion for summary judgment. It is settled law that a claim for declaratory relief may either be a request to the Court to affirm a state or status of a thing or it may be request to the Court to declare the right of ownership in or to thing – Government of Gongola State Vs Tukur (1989) 4 NWLR (Pt 117) Amaghizemwen (1993) NWLR (Pt 315) 1, Enekwe Vs International Merchant Bank of Nigeria (2007) 1 MJSC 193.

It is not in doubt that a claim for a declaratory relief seeking the Court to declare a right of ownership in or to thing cannot be granted lightly and it requires credible, cogent and sufficient evidence from the party making the claim because it affects the rights of others to or in that thing. Thus, in an action for declaration of ownership to land, the law is that a party claiming ownership of the land must succeed on the strength of his case and not on the weakness of the other party’s case – Lawal Vs Akande (2009) 2 NWLR (Pt 1126) 425, Chukwu Vs Amadi (2009) 3 NWLR (Pt 1127) 56, Usung Vs Nyong (2010) 2 NWLR (Pt 1177) 83, Ogunjemila Vs Ajibade (2010) 11 NWLR (Pt 1206) 559. Similarly, in an action for a declaration of ownership of shares in a company, the law is that the claimant must lead cogent and credible evidence to succeed, and cannot rely on absence of defence from the defendant – United Foams Products Nigeria Ltd Vs Opobiyi (2017) LPELR 43166(CA). Also, a declaration of entitlement to a chieftaincy can only be made on strength of cogent evidence led by a claimant – Oladele Vs Aromolaran (1996) 6 NWLR (Pt 453) 180, Ajibi Vs Olaewe (2003) 8 NWLR (Pt 822) 237.

Where, however, the declaratory relief sought by a party is for the affirmation of a state or status of a thing, it is usually granted as a consequential order to other reliefs in the matter. Thus, in an application for judicial review of the judgment of an inferior tribunal, where the Court finds that the judgment was given in breach of a party’s right to fair hearing, it grants a relief declaring the judgment null and void. Similarly, in a Fundamental Rights application, where a Court finds that the arrest and/or detention of a citizen was done in breach of his right to personal liberty, it grants a relief declaring the actions of the arresting authorities unconstitutional, illegal, null and void. There is no need for the applicant in such actions to lead separate oral evidence in proof of his entitlement to the declaratory relief.

The declaratory relief sought by the Respondent, in the present case, was in the nature of the affirmation of a state or status of a thing. One of the terms of the loan granted to the Appellants was the creation of a debenture charge on the fixed and floating assets of the first Appellant as security for the loan and which was to crystallize on the default of the Appellants in the repayment of the facility and/or other interest accrued thereon. The grant of the first claim of the Respondent for the sum of N127,747,620.59 as the outstanding debt due from the Appellants on the facility as at 17th of July, 2013, and which claim was admitted by the Appellants, postulates that the Appellants defaulted in the repayment of the facility and the interest that accrued thereon. The declaratory relief sought by the Respondent was consequential upon the grant of the first claim of the Respondent and it is one that the lower Court could grant without the need for further evidence on the part of the Respondent. The award of the declaratory order by the lower Court on the motion for summary judgment cannot thus be faulted.

Counsel to the Appellants also challenged the award of the post judgment interest at the rate of 17% per annum and his contention was that by the provisions of the Federal High Court Rules the maximum rate of interest that can be awarded post judgment is 10% and that as such the award was in excess of jurisdiction of the lower Court and should be set aside. The award of post judgment interest rates is entirely discretionary and it is awardable to run from the date of delivery of judgment and evidence need not be given for it to be awarded and the power to award it is usually granted by statute on the court to do in the exercise of discretion – Stabilini Visioni Ltd Vs Metalum Ltd (2008) 9 NWLR (Pt 1092) 416, Lamurde Local Government Vs Kaka (2010) 10 NWLR (Pt 1203) 574, Amber Resources Nigeria Ltd Vs Century Energy Services Ltd (2018) LPELR 43671(CA).

The power to award post judgment interest rate is contained in the Rules of Court of the High Courts and of the Federal High Court, and also in some High Court Laws and being statutory, a Court cannot award more than the stated maximum rate of interest – Churchgate Nigeria Ltd Vs Uzu (2005) LPELR 11404(CA), First Bank of Nigeria Plc Vs Davies (2017) LPELR 43556(CA). The lower Court, the Federal High Court, is empowered by Order 23 Rule 5 of the its Rules of Court to award post judgment interest not exceeding 10% per annum on any judgment. The award of 17% per annum as post judgment interest by the lower Court was in excess of the maximum rate of interest it is empowered to award. The grouse of the Appellants with the award of post judgment interest was with the rate of interest awarded and not with the entitlement of the Respondent to post judgment interest. The award of post judgment interest at the rate 17% will be set aside and, an award of 10% interest will be substituted in its stead.

All in all, save for the award of post judgment interest which this Court will scale down to 10% per annum, the first and second issues for determination in this appeal are resolved in favour of the Respondent.

This takes us to the third issue for determination – whether the award of the sum of N1 Million as damages against the Appellants amounted to double compensation. In arguing the issue, Counsel to the Appellants stated that upon the award of all the claims of the Respondent, particularly prejudgment and post judgment interests, the further award of the N1 Million as damages was tantamount to double compensation and he referred to the cases of Oando (Nig) Plc Vs Trade Bank Plc (2013) 8 NWLR (Pt 1377) 374 and Emirate Airline Vs Ngonadi (2014) 9 NWLR (Pt 1413) 506. Counsel stated that moreover, Counsel to the Respondent withdrew the prayer for damages in the course of moving the motion for summary judgment and that the grant of the prayer after such a withdrawal was exceeding gratuitous of the lower Court and that the law is that a Court is not a charitable institution and he referred to the case of the Alims (Nig) Ltd Vs UBA Plc (2013) NWLR (Pt 1351) 613. Counsel urged the Court to set aside the award.

Counsel to the Respondent did not address on this issue at all. The claim for the sum of N10 Million as general damages against the Appellants jointly and severally was the eighth claim of the Respondent on the statement of claim. The records of appeal confirm the statement of Counsel to the Appellants that Counsel to the Respondent withdrew the eighth prayer on the statement of claim in the open Court in the course of arguing his motion for summary judgment and he prayed the Court to strike it out. The lower Court ignored the request withdrawing the prayer and proceeded to award the sum of N1 Million as general damages. There is no rule of Court or principle of law or case law authority that forbids a party, at any stage of proceedings, from orally abandoning or withdrawing any of the reliefs sought on the originating process, irrespective of the nature of such reliefs, be it declaratory or executory.

It is not the law that a party needs to file a formal application to do so and neither does the party need the permission of the Court to so withdraw or abandon his reliefs and the Court cannot stop him from doing so. All that is required, for record purposes, is for the party to notify the Court of its decision to abandon or withdraw the relief or reliefs so as to stop the Court from granting it, and this can be done orally in open Court – Forby Engineering Co Ltd Vs Asset Management Corporation of Nigeria (2018) LPELR 43861(CA). The law is that from the moment the relief is withdrawn, it ceases to be part of the issues for adjudication and the Court has no power to grant it as it would amount to granting a relief not sought – Standard (Nigeria) Engineering Co Ltd Vs Nigerian Bank for Commerce and Industry (2006) 7 NWLR (Pt 978) 198, Oduwole Vs West (2010) 10 NWLR (Pt 1203) 598, Mancha Vs Emukowate (2017) LPELR 43113(CA), T. M. Lewin Nigeria Ltd Vs Smartmark Ltd (2017) LPELR 43136(CA). The lower Court was without jurisdiction to make the award on general damages and it will be set aside. The third issue for determination is resolved in favour of the Appellants.

In conclusion, this Court finds some merits in the appeal and the appeal is hereby allowed in part. The judgment of the Federal High Court sitting in its Jos Judicial Division and delivered by Honorable Justice D. V. Agishi in Suit No FHC/J/CS/130/2015 on the 14th of April 2016 is hereby affirmed, save for the award of 17% per annum as post judgment interest and the award of N1 Million as general damages. The award of interest at the rate 17% per annum on the judgment debt from date of judgment until it is fully liquidated is set aside and in its stead is substituted an award of interest at the rate 10% per annum on the judgment debt until it is liquidated. The award of the sum of N1 Million as general damages is set aside. The parties shall bear their respective costs on the appeal. These shall be the orders of the Court.

   HABEEB ADEWALE OLUMUYIWA ABIRU

JUSTICE, COURT OF APPEAL



P. A. Akubo, SAN, with S. Y. Tsok,

A. J. Adudu and M. J. Jabbe                                                      for the Appellants

J. Y. Pam with G. M. Gokat, D. E. Dawuk,

M. D, Gyang and T. D. Thompson                                           for the Respondent

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