University Of Calabar Vs 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, holden at Lagos in appeal No: CA/L/655/2017 coram Tom Shaibu Yakubu, Abimbola Osarugue Obaseki-Adejumo and Jamilu Yamamma Tukur, JJCA, which said judgment was delivered on 29th March, 2019.

A summary of the facts which have led to the appeal are that the 1st respondent commenced suit No: FHC/L/CS/1346/2015 against the 2nd – 4th respondents under the special claim Form Pursuant to section 53 of the AMCON Act, 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 as bad debt. In their joint statement of defence, the 2nd – 4th respondents contended that the said sum was a loan facility obtained from Union Bank Plc with the approval of the Federal Ministry of Education and the National Universities Commission for the development of digital (ICT) Hub projects and training of Nigerian students in seven model Nigerian Universities, namely: University of Abuja, Federal University of Technology, Minna, Federal University of Technology, Owerri, University of Benin, Edo State, Michael Okpara University of Agriculture Umudike, University of Port Harcourt and the appellant, which said projects had been executed.

That the loan-obtained for the development of those projects was to be serviced through the ICT levies remittances by the various universities to the 2nd – 4th respondents. Upon the application of the 2nd – 4th respondents, as defendants, the court granted leave for issuance and service of a third-party notice on the appellant as 2nd third-party and on 5th – 7th respondents as 1st, 3rd and 4th third-parties, respectively.

Following the grant of the application to issue and serve third-party notice, learned counsel for the 2nd – 4th respondents filed an application dated 22nd June, 2016 but filed on 30th June, 2016 seeking an order of court entering judgment against the third-parties in the sum of N2,594,499.08 (Two billion, five hundred and ninety-four million, four hundred and ninety-nine thousand, eight naira) and particularly the sum of N811,080,521.00 (Eight hundred and eleven million, eighty thousand, five hundred and twenty one naira) against the appellant.

Upon taking service of the third-party notice together with the 2nd – 4th respondents’ joint statement of defence to the original claim of the 1st respondent and also the motion seeking summary judgment, the appellant filed its notice of preliminary objection on 5th August, 2016 and statement of defence and counter claim dated 1st July, 2016 but filed 5th August, 2016. See pages 848 – 917 of the record to appeal. The appellant did not react to the application for summary judgment and it is not stated anywhere on the record that it’s preliminary objection was moved, neither is it stated that it was represented through the duration of the proceeding at the trial court.

At the proceeding of 3rd February, 2016 which was slated for hearing of the 2nd – 4th respondents’ application for summary judgment against the 1st and 4th third parties based on their admission, and upon the objection of the third parties that the motion was not ripe for hearing, learned counsel for the 2nd – 4th respondents withdrew the motion made the application orally instead. Learned counsel informed the court on page 1318 of the record that this appellant, as 2nd third-party had been served with the processes but failed to appear. The court entered judgment in favour of the 2nd – 4th respondents against the 3rd parties and particularly against the appellant in the sum N811,080,521.00. (Eight hundred and eleven million, eighty thousand, five hundred and twenty-one naira).

Dissatisfied with the judgment, appellant lodged an appeal at the Court of Appeal with a notice containing eight (8) grounds filed on 6th March, 2017. Appellant distilled six (6) issues for determination in its brief of argument. In the judgment now on appeal, the court below affirmed the decision of the trial court, hence this further and final appeal.

The appellant’s notice of appeal containing ten (10) grounds of appeal was filed on 27th June, 2019 out of which H. A. Bello, Esq. of counsel for the appellant distilled six (6) issues for determination in the appellant’s brief of argument filed on 11th September, 2019 but deemed properly filed on 12th February, 2024. The issues nominated by learned counsel for determination are as follows:

(1) Whether the lower court was right when it upheld the service of the third-party notice on the appellant outside Lagos State without the endorsement prescribed by section 97 of the Sheriffs and Civil Processes Act, 2004.

(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 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.

(4) 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.

(5) Whether the lower court was right when it upheld the judgment of the trial court which was delivered after the time limited by the AMCON Practice Direction had elapsed.