POINTS TO NOTE IN RESOLVING DISPUTES WITH AMCON
The Asset Management Corporation (AMCON) has been granted powers that seem to be too draconian for a democracy. However, the following authorities may assist you in approaching the Court in an AMCON Matter – summary of which includes:
- Approaching the Court to Settle.
- Approaching the Court to set aside AMCON’s Ex-parte orders on the basis of fair hearing.
- Approaching the Court to set aside AMCON’s Ex-parte orders for non-disclosure of material facts.
APPROACHING THE COURT TO SETTLE
Order 11 Rule 1 of the FHC (AMCON) Proceedings Rules 2018 provides:
“…the Judge shall in the circumstances where it is appropriate, grant to the parties, time, not more than twenty one (21) days within which parties may explore possibilities for settlement of the dispute”.
Order 2 of the FHC AMCON Proceedings Rules 2018 provides;
“(1) The Judge shall further the objectives of these rules by active case management… encouraging the parties to use an ADR Mechanism… to settle the whole or part of the case“.
Also Part II (2.2 and 2.4) of the AMCON Practice Directions 2013.
In Union Homes Savings & Loans Limited Vs CPL Industries Limited (2009) LPELR 8154(CA), Agbo, JCA, put it 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.
APPLICATION FOR EXTENSION OF TIME TO SET ASIDE AMCON ORDER
The Applicant humbly submits that the relevant factor to be considered in an application for extension of time to file court processes is whether the applicant have adduced reasons for the delay in filing the said process. See Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 S.C. 145. See also Chigbu v. Tonimas (Nig.) Ltd. (1999) 3 NWLR (Pt. 593) 115 at 135-136 paragraphs H-A;
In the case of Job Kolawole Buremoh v. Alhaji Isiaka Akande (2017) LPELR-41565(SC), the Supreme Court held that where an Applicant has adduced reasons for an application seeking the indulgence of this Honourable Court, same should be considered and we most humbly urge your Lordship to grant the Applicant’s payer as prayed in the Motion paper.
APPLICATION TO SET ASIDE FOR FAIR HEARING, NON-SERVICE And Non-Disclosure Of Material Facts
We humbly submit that the Claimant/Respondent (AMCON) is required to serve the Defendant / Applicany the Court processes (within 7 days) and send a notice of the proceeding and an option to pay to stay the proceedings – Order 3 Rule 3, Order 3 Rule 11, Order 6 Rule 2 of the FHC (AMCON) Proceedings Rules 2018; Part III (3.2) AMCON Practice Direction 2013. Order 8 Rule 2 of the FHC (AMCON) Proceeding Rules 2018 further provides that;
“…an originating process shall be served personally by delivering to the person to be served, a copy of the document duly certified by the Registrar as being true…”
Order 14.8.5 of the AMCON Practice Directions 2013 provides that “any party adversely affected by an order ex parte may apply to set it aside” . The Court in Bellview Airlines Ltd vs. Carter Harris (Proprietary) Ltd (2016) LPELR-40989(CA) commenting further; held that an order obtained without service “must be set aside” (Ibid. at Page 33 – 34 Paragraphs F – D). Tanzilla Petroleum Company Ltd & Anor v Assest Management Corporation (AMCON) 2015 LPELR – 40909 (CA);
“the Order of possession shall be serve on the debtor or debtor company, and the Corporation shall then proceed to file an action within 14 days…”
Order 13 Rule 2 of the FHC AMCON Proceeding Rules 2018 provides that notice of interlocutory applications shall be served on all the respondents. This is necessary for all the facts to be laid bare and before the court. Order 12(2) of the AMCON Proceedings Rules 2018 goes further to provide;
“if an interim remedy is given in error because of concealment of facts, the applicant shall indemnify the respondent for the damages suffered.
We humbly submit that this Honourable Court would have arraived at a different conclusion had it been informed of the full state of affairs. However, if this honourable Court is not minded to declare penalties against the Claimant we humbly submit that it will be in the interest of justice to set aside the orders as Order 16 Rule 3 of the AMCON Proceedings Rules 2018 grants this Court wide discretion to make “all orders necessary for doing justice”.
The Draftsmen of the AMCON Act (and its subsequent amendments) never intended AMCON to rob the Judiciary of its discretionary powers granted under the Constitution. Bi-Courtney v. Attorney General of the Federation and Asset Management Corporation of Nigeria (AMCON) SC/770/2014; Such intent cannot be alleged as doing so would be null and void for being inconsistent with the 1999 Constitution – On this kindly see AMCON v Adedayo Mumini Shittu and 3 Ors. CA/L/1266/2019.
The Federal High Court Civil Procedure Rules also provide that;
“(1) No order made on a motion ex parte shall last for more than fourteen days after the party or person affected by the order has applied for the order to be varied or discharged or last for another foruteen days after application to vary or discharge it had been argued.
(2) If a motion to vary or discharge an ex parte order is not taken with 14 days of its being filed, the ex parte order shall lapse.”
As it relates to the Claimant / Respondent, the Court of Appeal has held that Injunctions granted to AMCON to possess property must lapse after 14 days, within which AMCON must proceed with the substantive suit – Ayaka Investment and Anor v AMCON (2018) LPELR – 47007 (CA);
“In my view, the provisions of the law are mandatory where the Corporation decides to seek for an order of possession, it must strictly comply with the provisions of the law, the corporation has no discretion, …”.
Raylcon (Nig) Ltd & Anor v. Asset Management Corporation of Nigeria (AMCON) CA/E/101/2020. G.T.B. Plc v. Adedamola (2019)5 NWLR (PT 1664) 30 This honourable Court is the last hope of the citizen and an independent arm under the constitution
We refer to paragraph ________ of the Affidavit and Exhibit _______ wherein the Defendant/Applicant has shown that he was not given notice of this case nor the judgment of XY April 2022 until the 8th day of December 2022. This in contrary to the stipulations under the AMCON Act and Rules and this principle has been reiterated in established cases.
Assuming, without conceding that the AMCON Act robs the Defendant / Applicant of his right to fair hearing and right to property in a Democracy; we respectfully submit that, aside from not effecting due service, the Claimant/Respondent did not disclose all the material facts in relation to the application by which it obtained the order (on XY April 2022) to possess the Applicant’s property and the Defendant/Applicant was never aware of a pending court case until 08 December 2022. The court has restated the law relating to ex-parte injunctions in Okeke v. Okoli (2000) 1 NWLR (Pt. 642) p. 641 at page 652
“The law relating a ex-parte application… The blunt reality of the matter herein is that there was a misstatement by the Respondents in their ex parte application dated 21-7-93 and filed on 22-7-93 as to the status of Appellants Union. It does not matter whether the misstatement was an innocent one.”
This Honourable Court has unfettered discretion to set aside any interim orders obtained by non-disclosure of material facts – Order 26 Rule 9 of the Federal High Court (Civil Procedure) Rules 2019. Umar & Anor. v. Okeke (2016) LPELR-40258(CA). This is because the fair hearing provisions are not negotiable irrespective of AMCON’s Status. Service is fundamental to every suit Skye Bank Plc Vs Okpara (2015) 17 NWLR (Pt 1489) 613. In Suru Worldwide Venture Nigeria Limited & Anor V. Asset Management Corporation (AMCON) & 4 ORS the Court of Appeal was unanimous in setting aside the order obtained by AMCON at the Federal High Court for lack of a fair hearing. See also University of Calabar v Asset Management Corporation of Nigeria (AMCON) & Ors (2019) LPELR-47309 (CA); Asset Management Corporation of Nigerai (AMCON) V Astone Quarries Limited & Anor CA/C/149/2019 (Delivered 05 May 2021).
Summing up the above; the Court of Appeal in ECOBANK v AMCON 2018 LPELR-46532(CA) (CA/L/780/2017) reiterated that the AMCON Act cannot overrule the Provisions of the 1999 Constitution (specifically Section 36) holding further that Fair Hearing is non-negotiable thus;
“when the appellate Court finds that the right to fair hearing is breached, it shall have no alternative but to allow the appeal… In the result, I would allow the appeal and set aside the decision of the Court below and remit the case to the Chief Judge of the Federal High Court for re-assignment to another learned Judge (other than Yinusa, J.) for trial on the fast-track, it being AMCON litigation.” Per Ikyegh, J.C.A. (Pp. 22-26, Paras. B-C”.
The Court of Appeal has also confirmed in Jumbo V AMCON & Others (2020) LCN/14278 (CA) that the Constitution is the highest law and that Section 36 (1) can never submit to inconsistent provisions (which in this case was the provisions of the AMCON Amendment Act). On this also CBN v AMCON CA/YL/132/2015 delivered on Wednesday 12 April 2017. The Applicant cannot be deprived of his right to property without being heard (Section 44 Constution) as doing so will be tantamount to nullifying the provisions of Section 1(1) 1999 Constitution. See generally; Oguonu v Asset Management Corporation (AMCON) CA/L/1113/2018 Delivered May 27 2022 Director, SSS v. Agbakoba (1999) 3 NWLR (Pt. 595) 425, (1999) 1 SCNJ, 1; Asset Management Corporation (AMCON) v. ASCON (TARABA STATE CHAPTER) CA/YL/100/2019.
The courts have an inherent power under Section 6 of the Constitution to ensure proper and effective administration of justice, and safeguard civil rights so that the streams of justice will remain pure and unpolluted. The AMCON Act cannot be envisaged to entitle the Corporation to resort to self-help. The sacred principle of justice is that “no party is to secure an undue advantage over the other” – Okolonji v Mbanefo (2017) LPELR-41887 at 58-59A-C. Olugbenga Daniel v. Federal Republic of Nigeria (2014) 8 NWLR Pt. 1410 Page 570;
“The Court shall give equal treatment, opportunity, and consideration to all parties…, justice must not only be done, but manifestly and undoubtedly be seen to have been done.”
Alhaji Auwalu Darma v. Ecobank Nigeria Limited (2017) LPELR-41663(SC) pp. 16-18, par. F-A Also; Ekanem v Akpan (2018) LPELR -44036 23 – 28 wherein the Court held:
“the law should be even handed between the Government and the Citizens”.
We humbly submit that maintaining the status quo refers to the state of affaris that existed before the action complained of in our Motion. We humbly refer your Lordship to Akapo v. Hakeem-Habeeb & Ors (1992) LPELR-325(SC), the Supreme Court, Per Nnaemeka-Agu ,J.S.C ( P. 58, paras. E-G ) held
“the status quo that ought to be maintained in this case is the state of affairs that existed before the defendants’ forcible take over of the management and control of the family properties which constitutes the wrongful act complained of in the application”.
- We refer to paragraph ________ of the Affidavit in support of this application and humbly urge this Honourable Court to grant the Applicant’s prayers as prayed.
During the Military era, our judges fought against one-sided legislations and the Defendant/Applicant is convinced that this Court will do likewise. The Defendant/Applicant has therefore brought this application for both parties to negotiate terms of settlement in good faith and under the direction of this Honourable Court – pursuant to the rules. The Defendant/Applicant had already commenced negotiations with the Claimant prior to this suit and was shocked to receive orders of this Honourable Court. It is left with no further option but to seek the Court’s intervention to ensure that parties can negotiate their terms in a just and inclusive manner.
In view of the foregoing paragraphs, we humbly urge your Lordship to grant the application of the Defendant / Applicant. We are most obliged my Lord.
Dated this _____ day of December, 2022.