CORAM
PARTIES
ELDER HENDERSON ENYINNA SOMIARI JUMBO
ASSET MANAGEMENT CORPORATION OF NIGERIA & ORS
AREA(S) OF LAW
SUMMARY OF FACTS
The Respondents via an originating summons filed before the Federal High Court, holden at Port-Harcourt, sought the determination of two questions arising from the construction of the Deed of Tripartite Legal Mortgage dated 24th May 2000 and registered as No. 37 at pages 37 in volume 267 of the Land Registry Port Harcourt, between the Appellant, the 1st Respondent and the 2nd Respondent. Upon the affirmative determination of the questions, the Respondents prayed for 8 reliefs which are declaratory, injunctive and directive. The originating summons is supported by an affidavit of 24 paragraphs and also filed on behalf of the 1st Respondent is a further affidavit to which is annexed Exhibits AMCON 1, AMCON 2 and AMCON 3. Exhibit “AMCON 1” is a copy of the perfected Deed of Tripartite Legal Mortgage in respect of the property, the subject of this suit, Exhibit “AMCON 2” is a demand letter sent to the 2nd Respondent by 1st Respondent while Exhibit “AMCON 3” is a certified true copy of the deed of appointment of the 3rd Respondent as receiver. The Respondents also filed a motion exparte seeking for interim orders in respect of the subject property, one of which is that possession of the property be granted to the receiver pending the determination of the motion on notice for interlocutory injunction. The exparte motion was heard and granted on 14th May, 2018. In reaction to the originating process, the Appellant filed a counter affidavit of 10 paragraph and a Further Counter affidavit. In addition, when the interim order was served on him, the Appellant filed a motion on notice wherein he prayed for an order setting aside the interim orders of the court made on 14/5/18 which application was supported by a 15 paragraphs affidavit with two Exhibits annexed JUMBO 1 and JUMBO 2. “JUMBO 1” is 2nd Respondent’s Memorandum and Articles of Association while “JUMBO 2” is Appellant’s solicitor’s petition to the Acting Chairman, Economic and Financial Crimes Commission (EFCC). The Respondents reacted to the Appellant’s motion to set aside the interim orders by filing a counter affidavit of 10 paragraphs. The Appellants filed a reply on points of law. All affidavits, counter affidavits, further affidavits and further counter affidavit were all accompanied with written addresses of the respective counsel of the parties. The lower Court heard the motion of the Appellant to set aside the interim order and the originating summons together and delivered the ruling and judgment; the Appellant’s motion for an order to set aside the interim orders made on 14/5/18 was dismissed, while the Respondents’ originating summons, the questions posed for determination were answered in the affirmative, in consequence of which the reliefs sought therein were granted. Dissatisfied, the Appellant appealed to the Court of Appeal via his Notice of Appeal, which contains five (5) grounds including the omnibus ground of appeal, which is the 5th ground. Subsequent to the adoption of briefs, and precisely on 26/3/20, counsel were invited to address the court on whether, in view of the provision of Section 20 of the Asset Management Corporation of Nigeria (Amendment No. 2) Act, 2019 by which Section 53 of Asset Management Corporation of Nigeria, Act, 2010 is amended by substituting a new Section 53 with Seven (7) subsections, this court still has jurisdiction to hear and determine this appeal.
HELD
Appeal Allowed
ISSUES
Whether this court still has the jurisdiction to determine this matter in view of the Asset Management Corporation of Nigeria (Amendment No. 2) Act, 2019. Whether the lower court was right in granting the interim orders on 14/5/2018, and refusing to set same aside. Whether the matter was competently commenced and determined by originating summons. Whether the Respondents proved their case to be entitled to judgment.
RATIONES DECIDENDI
ASSET MANAGEMENT CORPORATION OF NIGERIA (AMENDMENT NO. 2) ACT, 2019 – EFFECT OF THE ESTABLISHMENT OF THE ASSET MANAGEMENT CORPORATION OF NIGERIA (AMENDMENT NO. 2) ACT, 2019
“The AMCON (Amendment No. 2) Act, 2019 came into force on 29th day of July, 2019. This Act in Section thereof amends amongst others 53 of the AMCON Act, 2010 by introducing subsections (1), (2), (3), (4), (5), (6) and (7). By this amendment, section 53 (3), (5) and (6) seeks to limit the time frame within which AMCON matters can be heard and determined. For ease of reference, I hereby reproduce the provisions of Section 53 (3) and (5) of the AMCON Act 2010 (as amended):
“53 (3). Each court specially designated under subsection (1) shall hear and determine within six months in the case of existing actions, from the date of the coming into effect of this section and in the case of new actions, within six months from the date of filing such new action”.
“53 (5). The Court of Appeal shall hear and determine all appeals from the courts specially designated under subsection (1) in an accelerated basis within 60 days, and in priority to all other appeals, and for this purpose, the President of the Court of Appeal shall issue or cause to be issued special Practice Direction for the Court of Appeal exclusively for the expedited and accelerated hearing and determination of appeals emanating from the specially designated courts”.
Section 53 (3) relates actions pending before the High Court before the commencement of the provision or new action filed after the commencement of the provision.
INTERIM ORDER – BASIS ON WHICH COURTS CAN GRANT INTERIM ORDER
“The wording of Section 49 (3) of the AMCON Act provides the only ground upon which an exparte order granted under the Act can lapse is the failure of the Corporation to file its recovery action 14 days after obtaining the exparte order. The provision does not contemplate filing a motion on notice together with the exparte motion. This is a sui generis proceedings and cannot be treated like the ordinary and general civil causes. In relation to the appellant’s argument, that the Respondents did not show any urgency to warrant the grant of the interim orders, I like to state that section 49 (I) of the AMCON Act provides the basis upon which a court hearing an AMCON matter can make an exparte order. The basis is, if the Corporation has reasonable cause to believe that a debtor or dent or company is the bonafide owner of any moveable or immoveable property. In the instant appeal, the Appellant is not a debtor. However Exhibit “AMCON 1” annexed to the further affidavit in support of the exparte motion on its face shows that the Appellant as guarantor of the loan facility granted to the 2nd Respondent mortgaged his immoveable property vide a Deed of Tripartite Legal Mortgage which he allegedly signed. In the faultless submission of the Respondents’ counsel in page 54, page 14 of his brief, relying on the case of FGN V. Interstella Communication Ltd (2015) 9 NWLR (Pt1463) 1where a debt is guaranteed, the creditor has the right to proceed against the guarantor in the event that the debtor is unable to satisfy the debt owed. Thus, the guarantor steps into the shoes of the original debtor. In this instant appeal based in the process before the court the property belongs to the Appellant, and since he is equally shown on the face of Exhibit “AMCON 1” to be the guarantor, the Corporation is entitled to apply for interim possession of the property and the court was right to have granted it”.
COURT- DUTY OF COURT NOT TO DELVE INTO THE SUBSTANCE OF A CASE AT THE PRELIMINARY STAGE
“The Appellant has strenuously denied that he did not sign the said Deed of Tripartite Legal Mortgage (Exhibit “AMCON 1”) and that this signature purporting to be his is not his. The originating summons calls for the construction of the Deed and the rights of the Corporation based on it.
Therefore, the defence of non est factum which Appellant’s averments amount to is a matter for the substantive matter. The law is settled that the court should not at preliminary stage of a case delve into the substance of the case. See Ezeilo& Anor V. Ezeonu (2019) LPELR – 48336 (CA) Nwadike V. State (2015) LPELR – 24550 (CA)” .-
ORIGINATING SUMMONS – INSTANCES WHEN AN ACTION CAN BE COMMENCED BY ORIGINATING SUMMONS
“In order to determine this issue, it is important to refer to and consider the provision of OR. 3 rule of the Federal High Court (Civil Procedure) Rules, 2009 which provides:
“Any person claiming to be interested under a deed, will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested”.
The provision of OR. 3 Rule ante was interpreted in the case of Famfa Oil Ltd V. Attorney General of Federation (2003) 18 NWLR (Pt852) 453 at 467 paras D – F. The court held:
“The very nature of an originating summons is to make things simpler for hearing. It is available to any person claiming interest under a Deed, will or other written instrument whereby he will apply by originating summons for the determination of any question of construction arising under the instrument for a declaration of his interest. It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to facts but what the plaintiff is claiming is a declaration of his rights…”
See on this, Jev & Anor V. Iyortyom & ors (2014) LPELR – 23000 (SC), Keyamo V. House of Assembly Lagos State (2002) LPELR – 1689 (SC), National Bank of Nigeria Ltd V. Alakija & Anor (1978) LPELR – 1949 (SC), Sani V. Kogi State House of Assembly & ors (2019) LPELR – 46404 (SC).
DOCUMENTARY EVIDENCE -EXCEPTION TO THE RULE THAT ORAL EVIDENCE CANNOT BE USED TO CONTRADICT THE CONTENTS OF DOCUMENTARY EVIDENCE
“But what is clear to me is that the trial judge do what is required to be done when there is a dispute as to whether a signature purporting to be of a particular person is denied. Section 93 (I) of the Evidence Act, 2011 provides:
“If a document is alleged to be signed or to have written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting”.
The lower court did not call for proof of the handwriting in the Deed of Tripartite Legal Mortgage to be that of the Appellant, and yet treated it as one that was executed by him. Dismissing the need for proof, it is submitted by the Respondents counsel that oral evidence cannot be called to contradict the contents of a document. Counsel relies on Section 128 of the Evidence Act, 2011. He also relies on AIB Ltd V. Lee & Tee Industries Ltd (2003) 7 NWLR (Pt819)366. However, there are exceptions. For instance, Section 128 (I) (a) of the Evidence Act provides exception where it is intended to prove fraud illegality etc, in relation to the said document. In the case of Arige V. Arige (2018) 16 NWLR (Pt1644) 67 at 89, it was held that:
“Oral evidence cannot be used to vary or contradict the contents of documentary evidence, except where fraud is pleaded”.
It is contended by the Respondents that the Appellant did not particularise the fraud alleged. He supposedly relies on OR. 13 Rule 6 (I) of the Federal High Court (Civil Procedure) Rules, 2009 which provides that a party shall plead specifically any matter (for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality) which if not specifically pleaded might take the opposite party by surprise.
The appellant did not leave the court and the Respondents in doubt that he was not a director in the 2nd Respondent, that he did not sign the Deed of Tripartite Legal Mortgage, and that he was defrauded, and annexed a copy of the petition he wrote to the Acting Chairman Economic and Financial Crimes (EFCC) (Exhibit “JUMBO 2” attached to his counter affidavit. Therefore though the Appellant did not specifically plead fraud, the need is obviated by the fact that he stated all facts that would show clearly that his defence is predicated on the fact that his signature was forged on the Deed of Tripartite Legal Mortgage. See the case of Adebanjo V. Brown (1990) 3 NWLR (Pt141) 661 at 667 – 668. –
ORIGINATING SUMMONS- WHETHER ORIGINATING SUMMONS CAN BE USED FOR HOSTILE PROCEEDINGS
“What the court was called to construct is the Deed of Tripartite Legal Mortgage in order to determine the Respondents’ right. The Appellants allegation that the signature on the Deed is not his but forged and that it was a case of fraud amounted to a serious conflict that made the proceedings hostile. In the case of Sani V. KSHA (2019) 4 NWLR (Pt1661) 172 at 184 the court held:
“Originating summons should be used only where the proceedings involves questions of law, rather than disputed facts, even where the facts are not in dispute, the originating summons should not be used if proceedings are hostile”. See also the case of N.U.C. V. Lornem (2018) 12 NWLR (Pt1633) 261 at 290 – 292 paras F – E.
The lower court should have in the light of the hostility in the affidavit evidence, converted the originating summons to a writ of summons and ordered for pleadings where evidence will be led to resolve the contentious issue of whether the signature in the Deed of Tripartite Legal Mortgage is that of the Appellant or, not and whether he could prove the fraud he alleged”. –
ORIGINATING SUMMONS- ROLE OF AFFIDAVIT EVIDENCE IN AN ACTION COMMENCED BY ORIGINATING SUMMONS
“In an action commenced by originating summons affidavit takes the place of pleadings. The counter affidavit therefore serves as statement of defence. Therefore every material averment in any affidavit filed in respect an originating summons must be specifically denied by the adverse party, otherwise the averment would stand unchallenged and be deemed admitted: Owuru V. Adigwu (2018) 1 NWLR (Pt1599) 1 at 27. –
COURT – DUTY OF COURT TO PROPERLY EVALUATE EVIDENCE BEFORE IT IN ARRIVING AT ITS DECISION
“In the circumstance, the justice of the case demanded that pleadings be ordered so that all contentious issues can be resolved. Rather, without a finding on the Appellant’s denial of the signature on the Deed of Tripartite Legal Mortgage, the court went ahead to give judgment in favour of the Respondents. Indeed the judgment fell short of the requirement that a judge must clearly demonstrate that the conclusion arrived at in the case was not based on intuition and whims of the judge but on evidence properly evaluated. This instance is not one of form but is to ensure and demonstrate that substantial justice has been done. See Sagay V. Sajere (2006) 6 NWLR (Pt661) 360. –
ORIGINATING SUMMONS PROCEDURE – DETERMINATION OF WHETHER A SUIT IS SUITABLE FOR ORIGINATING SUMMONS PROCEDURE
“Indeed I hold it to be preposterous to contend that in order to determine whether the suit is suitable for originating summons procedure, it is only the plaintiff’s affidavit in support of the originating summons that should be considered, that the court is not permitted to look at the counter affidavit of the defendant. There can be no clearer case of injustice than this because that will wreck incalculable hurt to the audi atterem pertem rule or maxim, a cardinal principle of natural justice. As rightly submitted by appellant’s counsel, in an originating summons proceedings, it is the counter affidavit filed in opposition to the originating summons that will determine if the facts are in dispute or conflict such that the matter cannot be determined without oral evidence. See the case of Ogah V. Ikpeazu (2017) 17 NWLR (Pt1594) P.335. –
CASES CITED
Not Available
STATUTES REFERRED TO
Asset Management Corporation of Nigeria (Amendment No. 2) Act, 2019|Asset Management Corporation of Nigeria Practice Direction, 2013|Assets Management Corporation Act of Nigeria, 2010|Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Evidence Act, 2011|Federal High Court (Civil Procedure) Rules, 2019|Statutes of Fraud 1677|