AMCON v. OGAI INVESTMENT CO. LTD &ANOR

CITATION: (2017) LPELR-42004(CA)

In the Court of AppealIn the Ilorin Judicial Division

Holden at Ilorin

ON THURSDAY, 2ND MARCH, 2017Suit No: CA/IL/70/2016

Before Their Lordships:

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

BetweenASSET MANAGEMENT CORPORATION OF NIGERIA - Appellant(s)

And1. OGAI INVESTMENT COMPANY LTD2. MR. AYO OSASONA - Respondent(s)

RATIO DECIDENDI

(201

7) LP

ELR-42

004(

CA)

1. COURT - JURISDICTION: What confersjurisdiction on a Court"It is trite law that the jurisdiction of a Court canonly be circumscribed by the Constitution orstatute which donated the jurisdiction in the firstplace and not by Practice Directions which is infact lower than Rules of Court in the hierarchy oflegislation.Section 53 of the AMCON Act says thatthe Chief Judge mayassign a Judge of the Court to hear matters for therecovery of debts owed to the Appellant and othermatters arising from the provisions of the Actduring which the Judge will not hear any othermatters for a period to be determined by the ChiefJudge. Section 53 of the AMCON Act does not limitthe jurisdiction of the trial Court to hear anddetermine matters particularly with respect totime. It is trite law that the limits of jurisdictionmay only be restricted or circumscribed by theConstitution or statute. See: NBN VS. SHOYOYE &ANOR (1977) 2 NSCC 301 AT 306 - 307; A.G,FEDERATION VS. GUARDIAN NEWSPAPERS LTD(1999) 9 NWLR (PT. 618) 187 AT 233." PerOWOADE, J.C.A. (Pp. 12-13, Paras. E-C) - read incontext

(201

7) LP

ELR-42

004(

CA)

2. PRACTICE AND PROCEDURE - PRACTICEDIRECTION: The extent of applicability of Practicedirection"Meanwhile, it must be said that PracticeDirections are instructions in aid of Practice inCourt. They are in the realm of subsidiarylegislation below Rules of Court in hierarchy andcannot override statutory provisions.In the instant case, the provision of Paragraph 5.3of the Practice Directions cannot limit, restrict orcircumscribe the jurisdiction of the trial Court. Inthe case of: AFRIBANK (NIG.) PLC VS. AKWARA(2006) 5 NWLR (PT. 974) 619 at 654-655, theSupreme Court held that:-"--- neither Practice Directions nor Rules of Court,can override statutory provisions indeed, thisCourt, in the case ofUNIVERSITY OF LAGOS &ANOR VS. AIGORO (1984) 11 SC 152 AT 191, heldthus: "Practice Directions do not have theauthority of Rules of Court although they areinstructions in aid of the practice Court. Theycannot themselves overrule Court decisions."PerOWOADE, J.C.A. (Pp. 13-14, Paras. D-B) - read incontext(2

017)

LPELR

-4200

4(CA)

3. PRACTICE AND PROCEDURE - RULES OFCOURT: Whether rules of Court can conferjurisdiction"In the case of: ANYANWOKO VS. OKOYE (2010) 5NWLR (PT. 1188) 497 AT 514 the Supreme Courtre-affirmed that jurisdiction is unaffected by Rulesof Court a fortiori Practice Directions. The apexCourt said:-"It is untenable therefore for the Appellant tocontend that the breach of the provisions of Order6 Rule 8 of the Rules of Court robbed the Court ofany jurisdiction. The jurisdiction of a Court asdonated either by the Constitution or by statuteremains unaffected by breaches of Rules of Court.The sustained challenge of Order 6 Rule 8 of theFederal Capital Territory High Court Rules was,with respect, grossly misplaced, not worth thetime and trouble of the Court and even Counsel forthe parties."Also, in NASIR VS. CIVIL SERVICE COMMISSION,KANO STATE, (2010) 6 NWLR (PT.1190) 253 AT276 MUKHTAR JSC had this to say: "In this regard,it is now firmly settled that issue of jurisdiction orcompetence of a Court to entertain or deal with amatter before it, is very fundamental. It is a pointof law and therefore, a rule of Court, cannotdictate when and how, such point of law, can beraised --- I need to emphasize as it is also settledthat mandatory rules of Court, are not assacrosanct as mandatory statutory provisions andtherefore, a rule of a Court, cannot overridestatutory provisions of Law."Per OWOADE, J.C.A. (Pp. 14-15, Paras. E-E) - readin context

(201

7) LP

ELR-42

004(

CA)

(201

7) LP

ELR-42

004(

CA)

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

Leading Judgment): This is an Appeal against the

decision of R. N. OFILI –AJUMOGOBIA J. sitting at the

Federal High Court Ilorin, delivered on 14th June, 2016.

The Appellant as Claimant by its General Claim Form and

Statement of Claim dated 14-12-2015, at the lower Court

sought the following reliefs against the Respondents.

“3(a) AN ORDER granting judgment against the

Defendants in the sum of N31,524,143.25 (Thirty one

million, five hundred and twenty four thousand, one

hundred and forty three Naira, Twenty Five Kobo)

being the debt owed the Claimant by the Defendants as at

22nd June, 2015.

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

judgment sum against the Defendants with effect from

22nd June, 2015.

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

judgment sum against the Defendants from the date of

Judgment till liquidation.

(d) A DECLARATION that the Third Party Legal Mortgage

created on the 2nd Defendant’s property crystallized upon

the 1st Defendant’s failure to liquidate the outstanding

credit facilities.

(e) AN ORDER

1

(201

7) LP

ELR-42

004(

CA)

granting leave to the Claimant to sell and dispose of the

immovable property belonging to the Defendants 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 howsoever until

the judgment debt is fully liquidated.

(g) The Cost of this action."

By a notice of Preliminary Objection dated 11-04-2016, the

Respondents objected to the Jurisdiction of the trial Court

to continue to hear the Suit on the ground that trial and

written Addresses were not concluded within 3 months of

commencement of proceedings as prescribed by Paragraph

5 (3) of the Asset Management Corporation of Nigeria

Practice Directions, 2013. On 14-06-2016, the learned trial

Judge delivered the Ruling on the objection and struck out

the Appellant’s Suit on the ground that trial and Written

Addresses were not concluded within 3 months as

prescribed by Paragraph 5 (3) of the Practice Directions

Dissatisfied with the Ruling, the Appellant filed a Notice of

Appeal containing a sole ground of

2

(201

7) LP

ELR-42

004(

CA)

appeal into this Court on 28-06-2016.

The relevant briefs of Argument are as follows:

1. Appellants’ Brief of Argument dated 05-09-2016

and filed on 07-09-2016 settled by A. B. Sulu-Gambari

Esq.

2. Respondent’s Brief of Argument dated 14-12-2016,

filed on 15-12-2016 but deemed filed on 17-01-2017,

settled by O. M. OBARO Esq.

3. Appellant’s Reply Brief dated 17-01-2017 and filed

on the same day.

Learned Counsel for the Appellant formulated a sole Issue

for determination thus:

“Whether Paragraph 5 (3) of the Directions which

requires trial and written Addresses to be concluded

within 3 months of commencement of Suit may be

interpreted to circumscribe the jurisdiction of the

lower Court."

Similarly, the Learned Counsel for the Respondent also

formulated a sole issue thus:

“Whether the learned trial Judge was wrong to have

struck out the Appellant’s case for lack of jurisdiction

to further entertain same pursuant to Paragraph 5.3

of AMCON Practice Direction which requires trial and

written addresses to be concluded within three (3)

months of commencement."

(201

7) LP

ELR-42

004(

CA)

In support of

3

(201

7) LP

ELR-42

004(

CA)

the sole Issue for determination, Learned Counsel for the

Appellant reproduced Paragraph 5 (3) of the Practice

Directions and submitted that while the Jurisdiction of the

Lower Court is donated by Sections 53 and 61 of the Asset

Management Corporation of Nigeria Act 2010 (as

amended) the Act does not limit the Jurisdiction of the

Lower Court to hear and determine matters particularly

with respect to time. In a nutshell, says Counsel, what the

above Section says is that the Chief Judge may assign a

Judge of the Court to hear matters for the recovery of debts

owed the Appellant 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 referred to the cases of:

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

306-307 and A.G, FEDERAL VS. GUARDIAN

NEWSPAPERS LTD (1999) 9 NWLR (PT. 618) 187 AT

233.

And submitted that because of the importance of

Jurisdiction, it may only be limited or circumscribed by

statute and that it is inconceivable in law and logic that

Practice Directions or Rules of Court can terminate the

jurisdiction of a Court as held

4

(201

7) LP

ELR-42

004(

CA)

by the learned trial Judge.

Counsel submitted that the issue was not whether trial and

Written Addresses have been concluded within 3 months of

commencement of the Suit as prescribed by Paragraph 5

(3) of the Practice Directions but whether it had the effect

of terminating the Court’s Jurisdiction which is statutorily

donated.

That while “The Practice Direction binds the conduct of this

Suit and it (sic) provision must be compiled with”, it cannot

be complied with to the extent of terminating the

Jurisdiction of the Court which is statutory. The Practice

Directions remains a subsidiary legislation not being a

constitutional or statutory provision and cannot override a

statutory provision.

Appellant’s Counsel submitted by way of analogy that the

Federal High Court (Civil Procedure) Rules 2009 was also

made by the Chief Judge of the Federal High Court

pursuant to the powers conferred on him by S. 254 of the

Constitution of the Federal Republic of Nigeria 1999 but

that just like other Rules of Court, it is in the realm of

subsidiary, legislation and cannot determine a Court’s

Jurisdiction.

Counsel referred to the

5

(201

7) LP

ELR-42

004(

CA)

cases of:

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

497 AT 514; and NASIR VS. CIVIL SERVICE

COMMISSION, KANO STATE (2010) 6 NWLR

(PT.1990) 253

and submitted that Rules of Court (and by implication

Practice Directions) 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 Legislature wishes to

circumscribe the Jurisdiction of a Court, it does so clearly

by statute or the Constitution. He cited the example of

Section 285 (6) and (7) of the Constitution under which the

case of: ANPP VS. GONI & ORS (2012) 7 NWLR (PT.

1298) 147 AT 191 was decided.

He submitted 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 provisions of Sections 51 and 63 of the Act which

donated Jurisdiction to the Lower Court to hear and

determine the Suit before it.

He concluded that Paragraph 5 (3) of the Practice

Directions which provides that Written Addresses and trial

must be

(201

7) LP

ELR-42

004(

CA)

6

(201

7) LP

ELR-42

004(

CA)

concluded within 3 months of the commencement of a

matter cannot be interpreted to defeat the clear provisions

of Sections 53 and 61 of the Act which do not restrict or

limit the Jurisdiction of the Court particularly with respect

to time.

Learned Counsel for the Respondent submitted that both

the Constitution and the AMCON Act donated the statutory

powers exercisable by the Chief Judge of the Federal High

Court in respect of AMCON cases. That it is the provision of

Section 252 of the Constitution that brought the AMCON

Act, as the National Assembly simply conferred the AMCON

cases to the Federal High Court, while empowering the

Chief Judge of the Federal High Court to make governing

rules and procedure pursuant to Section 254 of the

Constitution.

He submitted that the Practice Directions made under the

aforementioned provision of the law cannot be said not to

have force of law. He referred to the cases of:

DIDE VS. SELEKE TIMIBI (2010) ALL FWLR (PT. 535)

275, OKEREKE VS. YAR’ADUA (2008) ALL FWLR (PT.

430) AT 626, HARUNA VS.MODDIBO (2004) ALL

FWLR (PT.230) 740 and BUHARI VS.INEC (2009) ALL

FWLR (PT. 459) 431

and submitted that Practice

7

(201

7) LP

ELR-42

004(

CA)

Direction is an integral part of the Law and rules guiding

the Court.

Learned Counsel for the Respondent reproduced the

provision of Sections 53 and 61 of the AMCON Act. He

submitted that it is discernable from the wordings of the

provision that the Act confers Jurisdiction and in the same

vein stipulates or gives the Chief Judge the discretionary

powers to determine the period within which such species

of matters can be heard and dispensed with.

He submitted that AMCON Directions 2013 is an integral

part of the laws guiding the conduct, hearing and

determination of the matter at the trial Federal Court and

non-compliance with Practice Directions is fundamental as

it vitiates all steps taken at the trial resulting in nullity. He

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

(2010) 12 FWLR (PT.430) 626 and submitted that the

provision of Paragraph 5.3 of the AMCON Practice

Direction imposes a restriction on the power of the Court

hereby making the Court’s Jurisdiction to be limited to the

extent of the restriction placed by the Practice Directions.

He submitted that the learned trial Judge was therefore

right to have declined further

8

(201

7) LP

ELR-42

004(

CA)

Jurisdiction to entertain the case.

Respondents’ Counsel further referred to the cases of:

MADUKOLU VS. NKEMDILIM (1962) 2 SCN LR 341,

WESTERN STEEL WORKS LTD VS. IRON & STEEL

WORKERS UNION (N0.1) (1986) 3 NWLR (PT. 30)

617 and PRINCE ALABI DOSUNMU VS. NNPC (2014)

6 NWLR (PT. 1403) 282 AT 304-305.

To say that Paragraph 5 (3) of the AMCON PRACTICE

DIRECTIONS has set a condition precedent to the

continuous exercise of the Coram Judice of the Court in

this Suit after 3 months from the time case was started.

Respondents’ Counsel agreed that the Jurisdiction of a

Court may only be limited by Statute but posited that

Practice Direction is one such Statute. That, in any event,

the power of the Chief Judge of the Federal High Court to

make the AMCON Practice Directions has its foundation in

the Constitution, the Federal High Court Rules and the

AMCON Act itself. Also, that by the provision of the

AMCON Act, 2010 - Section 53, the Chief Judge has an

unfettered power to determine the duration of a matter in

this specie of cases.

Learned Counsel submitted that in the instant case, the

Appellant has not been able to establish any

9

(201

7) LP

ELR-42

004(

CA)

area of conflict between AMCON Practice Directions, the

Constitution and the AMCON Act. It follows that the

provision of Paragraph 5 (3) of the Practice Direction must

be followed.

He submitted that the decision of AFRIBANK VS.

AKWARA (Supra) cited in Paragraph 4. 10 of the

Appellant�s brief does not apply as there exist no fact

that the AMCON�S Practice Directions has overridden

any decision of the Court, neither is it in conflict with any

statutory provision rather, Paragraph 5.3 of the Practice

Directions supports the Act to foster the fundamental

objective of the Act.

He submitted that it is absurd on the part of the Appellant

who has taken the benefit of the same Practice Directions

to turn back against the same Direction when it seems

unfavourable.

Learned Counsel for the Respondents submitted further

relying on the case of: ADEBAYO VS. P.D.P. (2013) 17

NWLR (PART 1382) 87 that where an enabling statute

makes a general provision without specifying, the

subsidiary provision in respect of that subject matter not

covered by the enabling statute would prevail in the

adjudication of that particular subject matter so far as it

does not

10

(201

7) LP

ELR-42

004(

CA)

occasion conflict with the parent Act.

He concluded that the authorities of:

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

4 9 7 A T 5 1 4 , N A S I R V S . C I V I L S E R V I C E

COMMISSION, KANO STATE (2010) 5 NWLR (PT.

1190) 253 and ANPP VS. GONI & ORS (SUPRA)

and other authorities relied upon by the Appellant’s

Counsel are distinguishable and immaterial in the absence

of any proof that the Practice Directions are in

contradiction to any statute as to the issue of timing. That it

would have been a different issue if the AMCON Act had

provided for a different time limit for trial of AMCON cases.

He urged us to uphold the decision of the learned trial

Judge and dismiss the Appeal.

Learned Counsel for the Appellant raised at least two

important and relevant points in his reply. The first is that

the AMCON Act did not circumscribe the jurisdiction of the

Lower Court. It gave the Lower Court Jurisdiction to hear

AMCON matters without any time limitation whereas

Paragraph 5 (3) of the Directions stipulates that trial and

Written Addresses must be concluded within 3 months of

the commencement of a suit.

Secondly, that the issue is not whether Paragraph 5

11

(201

7) LP

ELR-42

004(

CA)

(3) was complied with as suggested by the Respondents but

whether non-compliance with the provision can

circumscribe the jurisdiction of the trial Court.

In deciding the sole Issue in this Appeal, I am in agreement

with the learned Counsel for the Appellant that the

germane issue at stake is whether the effect of non-

compliance with the provision of Paragraph 5.3 of the

Practice Directions could circumscribe the jurisdiction

donated to the trial Court by the Constitution and statute to

hear and determine cases. The simple answer to this

question is that the provision of Paragraph 5.3 of the

AMCON Practice Direction cannot work to circumscribe the

jurisdiction of the Court by limiting the time limit to

conduct trials. That being so, the learned trial Judge was

wrong in applying the provision to terminate the

Appellant’s Suit.

It is trite law that the jurisdiction of a Court can only be

circumscribed by the Constitution or statute which donated

the jurisdiction in the first place and not by Practice

Directions which is in fact lower than Rules of Court in the

hierarchy of legislation.

Section 53 of the AMCON Act says that the Chief Judge

may

12

(201

7) LP

ELR-42

004(

CA)

assign a Judge of the Court to hear matters for the recovery

of debts owed to the Appellant 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. Section 53 of the AMCON Act does not

limit the jurisdiction of the trial Court to hear and

determine matters particularly with respect to time.

It is trite law that the limits of jurisdiction may only be

restricted or circumscribed by the Constitution or statute.

See: NBN VS. SHOYOYE & ANOR (1977) 2 NSCC 301

AT 306 – 307; A.G, FEDERATION VS. GUARDIAN

NEWSPAPERS LTD (1999) 9 NWLR (PT. 618) 187 AT

233.

Meanwhile, it must be said that Practice Directions are

instructions in aid of Practice in Court. They are in the

realm of subsidiary legislation below Rules of Court in

hierarchy and cannot override statutory provisions.

In the instant case, the provision of Paragraph 5.3 of the

Practice Directions cannot limit, restrict or circumscribe

the jurisdiction of the trial Court.

In the case of: AFRIBANK (NIG.) PLC VS. AKWARA

(2006) 5 NWLR (PT. 974) 619 at 654-655, the Supreme

Court held

13

(201

7) LP

ELR-42

004(

CA)

that:-

”-------- neither Practice Directions nor Rules of Court, can

override statutory provisions indeed, this Court, in the case

of UNIVERSITY OF LAGOS & ANOR VS. AIGORO

(1984) 11 SC 152 AT 191, held thus:

“Practice Directions do not have the authority of

Rules of Court although they are instructions in aid of

the practice Court. They cannot themselves overrule

Court decisions."

The fact that the Chief Judge made the Practice Directions

as held by the Learned trial Judge, and the fact that the

provision of Paragraph 5.3 of the Practice Directions must

be complied with as further held by the Learned trial Judge

does not mean that the Court must abandon its jurisdiction

if the trial lasted more than the three (3) months prescribed

by the Practice Directions.

In the case of: ANYANWOKO VS. OKOYE (2010) 5

NWLR (PT. 1188) 497 AT 514 the Supreme Court re-

affirmed that jurisdiction is unaffected by Rules of Court a

fortiori Practice Directions. The apex Court said:-

“It is untenable therefore for the Appellant to

contend that the breach of the provisions of Order 6

Rule 8 of the Rules of Court robbed the Court of

14

(201

7) LP

ELR-42

004(

CA)

any jurisdiction. The jurisdiction of a Court as

donated either by the Constitution or by statute

remains unaffected by breaches of Rules of Court.

The sustained challenge of Order 6 Rule 8 of the

Federal Capital Territory High Court Rules was, with

respect, grossly misplaced, not worth the time and

trouble of the Court and even Counsel for the

parties."

Also, in NASIR VS. CIVIL SERVICE COMMISSION,

KANO STATE, (2010) 6 NWLR (PT.1190) 253 AT 276

MUKHTAR JSC had this to say:

“In this regard, it is now firmly settled that issue of

jurisdiction or competence of a Court to entertain or

deal with a matter before it, is very fundamental. It is

a point of law and therefore, a rule of Court, cannot

dictate when and how, such point of law, can be

raised ---------- I need to emphasize as it is also settled

that mandatory rules of Court, are not as sacrosanct

as mandatory statutory provisions and therefore, a

rule of a Court, cannot override statutory provisions

of Law.”

Clearly, therefore, the Direction which provides that

Written Addresses and trial must be concluded within 3

months of the commencement of a matter cannot be

interpreted to

15

(201

7) LP

ELR-42

004(

CA)

defeat the provisions of Sections 53 and 61 of the AMCON

Act which do not restrict or limit the Jurisdiction of the

Court particularly with respect to time.

The Learned trial Judge was wrong in the circumstance to

have declined jurisdiction to continue the hearing of the

Claimant’s/Appellant’s Suit on the basis of the provision of

Rule 5 (3) of the AMCON (2013) Practice Direction.

The only Issue in this Appeal is resolved in favour of the

Appellant.

Having resolved the only Issue in this Appeal in favour of

the Appellant, the Appeal is meritorious and it is allowed.

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

FHC/IL/CS/77/2015 delivered on 14-06-2015 is hereby set

aside. SUIT NO. FHC/IL/CS/77/2015 is remitted to the

Honourable, the Chief Judge, Federal High Court for

assignment to another Judge of the Federal High Court for

hearing.

The sum of fifty thousand Naira (N50,000.00) costs of this

Appeal is awarded to the Appellant.

CHIDI NWAOMA UWA, J.C.A.: I read before now, the

judgment of my learned brother, MOJEED ADEKUNLE

OWOADE, JCA. I agree with my learned brother's reasoning

and

(201

7) LP

ELR-42

004(

CA)

16

(201

7) LP

ELR-42

004(

CA)

conclusion arrived at in holding that the appeal is

meritorious, I also allow same. The Ruling of the lower

Court is also set aside by me in Suit No. FHC/IL/CS/77/15

delivered on 14/6/15 by Ajumogobia, J. The suit is remitted

to the Chief Judge of the Federal High Court for assignment

to another judge for hearing. I abide by the order made as

to costs in the leading judgment.

HAMMA AKAWU BARKA, J.C.A.: I had a preview of the

judgment just read by my learned brother MAJEED

ADEKUNLE OWOADE JCA. Having also read the records

and the submissions of learned counsel, I agree with his

reasoning and conclusion that the appeal has merit

deserving of its being allowed. Consequently, the judgment

of the lower Court in Suit No: FHC/IL/CS/77/2015,

delivered on 14/6/2015 is hereby set aside. I endorse my

Lord's order that the case be remitted to the Chief Judge of

the Federal High Court for assignment to another judge,

and abide on order as to costs made therein.

17

(201

7) LP

ELR-42

004(

CA)