Federal University Of Technology, Owerri v. Asset Management Corporation Of Nigeria & Ors (2024)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

JOHN INYANG OKORO, JSC (Delivering the leading judgment)

This appeal is against the judgment of the Court of Appeal, Lagos Judicial Division, in appeal No. CA/L/655A/2017 delivered on 29/3/2019.

A summary of the facts which has given birth to this appeal are that the 1st respondent commenced suit No. FHC/L/CS/1346/2015 against the 2nd, 3rd and 4th respondents for the recovery of the sum of N1,085,859,446.14 (One billion, eighty-five million, eight hundred and fifty-nine thousand, four hundred and forty six naira. fourteen kobo) being debt originally owed to Union Bank Plc but bought over by the 1st respondent.

In their statement of defence, the 2nd – 4th respondents contended that the said sum was a loan obtained from Union Bank with the -approval of Federal Ministry of Education and the National Universities Commission for the building of digital (ICT) projects in seven Model Nigerian Universities, namely: University of Abuja, Federal University of Technology, Minna, University of Calabar, University of Benin, Edo State, Michael Okpara University of Agriculture, Umudike, University of Port-Harcourt and the appellant’s main campus in Owerri, which has been done.

That the loan was to be offset through ICT levies remittances by the various universities to the 2nd – 4th respondents. Upon the 2nd – 4th respondents’ application, the trial court granted leave for issuance and service of third party notice on the appellant and 5th – 7th respondents.

At the proceedings of 3rd February, 2017 which was slated for hearing. of the. 2nd – 4th respondents’ application or summary judgment against the 3rd parties, upon the objection of 3rd parties that the motion was not ripe for hearing, learned counsel for the 2nd – respondents decided to withdraw the motion and rely on oral application whereof the court gave a summary judgment against the appellant, University of Abuja, University of Calabar and Federal University of Technology, Minna, hence the appeal to the court below.

At the court below, the appellant centered its appeal on the contention that the trial court lacks the jurisdiction to entertain the 3rd party proceedings on the ground of improper service of the 3rd party notice and that the subject matter of the suit was on simple contract, among others.

In its judgment delivered on 29th March, 2019 the court below upheld the summary judgment of the trial court and dismissed the appeal, hence this further and final appeal.

The appellant’s notice of appeal on pages 1417 – 1427 of the record of appeal was filed on 27th June, 2019 containing ten (10) grounds of appeal out of which Francis Unyimadu, Esq. of counsel for the appellant distilled 7 issues for determination in the appellant’s brief of argument filed on 9/9/2019 but deemed properly filed on 12/2/2024. The issues nominated for determination by learned counsel are as follows:

1. Whether the lower court was right in upholding a preliminary objection filed by the 2nd – 4th respondents which attacked only six of the appellant’s issues for determination.
2. Whether the lower court was right in upholding the assumption of jurisdiction of the trial court to hear and determine a suit the subject matter of which was a simple contract between the appellant and the 2nd – 4th respondents.
3. Whether the lower court was right when it upheld the. service of 3rd party notice on the Appellant outside Lagos State without the endorsement prescribed by section 97 of the Sheriffs and Civil Processes Act, 2024.
4. Whether the lower court rightly upheld the jurisdiction of the Federal High Court sitting as an AMCON track court to hear and determine the 3rd party notice the subject matter of which was a debt allegedly owed to the 2nd – 4th respondents by the appellant.
5. Whether the lower court was right when it upheld the judgment of the trial court which was delivered after the time limit by AMCON Practice Direction had elapsed.
6. Whether the lower court was right when it upheld the judgment of the trial court which was based on a document that was not before the court as an exhibit.
7. Whether the lower court rightly upheld the summary judgment of the trial court which was delivered in response to an oral application moved by the counsel for the 2nd – 4th respondents after withdrawing their motion on notice for the same purpose.

The 1st respondent’s brief of argument settled by Jude Ehiedu, Esq., was filed on 16/8/2021 but deemed properly filed on 12/2/2024. Learned counsel adopted the 7 issues as distilled by the appellant.

For the 2nd – 4th respondents, their joint brief of arguments filed on 2/6/2021 but deemed filed on 12/2/2024 was settled by Mr. Ikeazor Akaraiwe, SAN. Save for the slight amendment for their issue 4, learned counsel equally adopted the 7 issues submitted by the appellant for determination of this appeal. The minor amendment to issue 4 reads as follows:

(4) “Whether the Court of Appeal rightly upheld the jurisdiction of the Federal High Court sitting as an AMCO track court to hear and determine the third-party notice in respect of a debt allegedly owed to the 2nd – 4th respondents by the appellant.”

The 5th – 7th respondents did not file any process in this appeal.

On the appellant’s issue one, it was submitted that the lower court erred in law to have struck out appellant’s ground eleven and issue 6 distilled therefrom, on the basis of a preliminary objection from counsel for the 2nd – 4th respondents attacking only the appellant’s issue 6 at the lower court.