M. U. O. Ezomo V. Attorney-general, Bendel State (1986)
LawGlobal-Hub Lead Judgment Report
ANIAGOLU, J.S.C.
This appeal involves the authority of an Attorney-General of a State to withdraw an appeal which was lodged by a State Government to the Court of Appeal against the judgment
of a State High Court; the effect and the binding nature of the Attorney-General’s exercise of that authority upon the State Government and the A functionaries of the Ministry of Justice and the validity or otherwise of an interference, by the Solicitor-General of the State and those working under him, with that exercise of the authority by the said Attorney-General. But before I embark upon a resolution of the above, it will be convenient to set out the background facts which have led to these proceedings.
Before the coming into office of the civilian government on 1st october 1979 (usually referred to the 2nd Republic) the Military was governing this country. They made spirited and determined efforts to eradicate the endemic social disease (namely corruption) which had afflicted the body politic of the Nigerian Society.
In pursuance thereof the Bendel State Government, on 17th October 1975, appointed a four-man panel headed by one Prince David I. Akenzua, a Legal Practitioner, and which was known as the Assets Verification Panel to verify and examine the assets of public officers of Bendel State holding certain posts; for the period January 1966 to September 1975, applying for the inquiries, relevant provisions of Decree No.37 of 1968 known as the Investigation of Assets (Public Officers and other Persons) Decree, 1968.
It would appear that in the discharge of that assignment the panel investigated the assets of one Civil Engineer, Daniel Osahon Uhimwen, and on the principle that he appeared to have acquired assets far in excess of any income from his known or ostensible means of livelihood, adjudged that he should forfeit to Government a house and property situate at No.8 Agbonlahor Street, Uzebu, Benin City. But the house, apparently, belonged not to him but to his father M.U.O. EZOMO, who was not a public officer.
The said Mr. Ezomo wrote a petition against the forfeiture to the Military Government but he got no reply. He wrote a reminder and another petition dated 28th March 1977 and 26th April 1977 respectively. He complained that the said property at No.8 Agbonlahor street, Uzebu, Benin City , was his own; that it did not belong to Daniel Osahon Uhimwen his son, and that he was not given a hearing before the inquiry panel, before the house was forfeited. Not having received any reply to his petitions, M.U.O. EZOMO (hereinafter referred to as the plaintiff) took out a writ of summons in the High Court of Justice of Bendel State holden at Benin City claiming:
“(a) A declaration that the purported forfeiture of the said property contained in Bendel State Government Gazette No.1 Volume 14 of 16th January 1977 is null and void and of no effect whatsoever.
(b) A declaration that the plaintiff is entitled to the possession of the land and premises situate at No.8 Agbonlahor Street, Benin City wrongfully forfeited and occupied by the agents and servants of the Bendel State Government since January 1977.
(c) A declaration that the plaintiff is entitled to mesne profit (sic) from the 6th day of January 1977 until possession is delivered up.
(d) Perpetual injunction to restrain the defendant whether by themselves, public servants, or agents or otherwise howsoever from entering, trespassing, using or remaining in occupation of the plaintiff’s property at No.8 Agbonlahor Street, Uzebu Quarters, Benin City.”
The action was heard by Uwaifo, J. who, at the end of trial, entered judgment with costs for the plaintiff on 10th October 1980 granting the declaratory reliefs sought in (a) , (b) and (d) above but refusing the declaration for mesne profits.
It was against this judgment that the defendant – the Attorney-General of Bendel State (then one Mr. Obasuyi) – appealed – to the Court of Appeal in 1980. But on 15th April 1983 he (Mr. Obasuyi) filed in the High Court, Benin City. a notice of “withdrawal” of the Appeal, a copy of which, as hereunder, was served on the respondent:
“CIVIL FORM 14
IN THE COURT OF APPEAL
NOTICE OF WITHDRAWAL OF APPEAL
(Order 3 Rule 18(1)
SUIT NO.8/103/80
APPEAL NO…
BETWEEN:
M.U.O. EZOMO
AND
ATTORNEY GENERAL,
BENDEL STATE DEFENDANT/APPELLANT
TAKE NOTICE that the Defendant/Appellant herein and doth hereby wholly withdraws his appeal against the plaintiff/Respondent in the above-mentioned appeal.
Dated at Benin City this 14th day of April, 1983.
(Sgd.)
Appellant
Attorney-General, Bendel State.
The Principal Registrar,
High Court of Justice,
Benin City.
For Service on:
M.U.O. EZOMO
c/o His Solicitors,
Solomon Asemota & Co.,
Plot 812 Sapele Road,
Benin City”.
The Registrar of the High Court, for reasons not apparent on the record, neither sent up to the Court of Appeal this notice of withdrawal nor included it in the Record of Appeal compiled by him. On 22nd February 1984, the Record of Appeal was transmitted to the Court of Appeal and the notice of the transmission was sent to the parties. The appeal was set down for hearing by the Court of Appeal. In the meantime the Attorney-General, Mr Obasuyi, had been replaced by a new Attorney-General, one Mr. C.N. Okolo.
On receipt of the appeal documents Mr. Okolo sent a minute to the Military Governor, Bendel State, seeking for directions on whether or not to proceed with the prosecution of the appeal. Mr. Okolo, in seeking the Governor’s directives, appeared to have ignored the legal consequences of the withdrawal of an appeal by an appellant, which he, as a lawyer, knew or ought to know. I shall return to this in due course.
The said minute to the Governor reads as follows:
“Military Governor
Page 1 of this file is a notice informing me that Suit No. 8/103/30.
Attorney-General, Bendel State vs. M.U.O. Ezomo has been forwarded to the Federal Court of Appeal as per their letter No 8/103/80/T/1A of 22nd February, 1984. Along with this notice a certified true copy of the Record of Appeal was forwarded to me for use,
- Page 3 is a telegram informing me that the said Suit has now been fixed for hearing on the 3rd of September, 1984.
- Page 4 is also a notice confirming page 3. Page 5 is a notice of withdrawal of appeal filed by my predecessor in office, Mr. B.I. Obasuyi,
- On close examination, I have found that whereas this was addressed to the Federal Court of Appeal, it was filed perhaps, inadvertently, in the High Court. Accordingly, the Suit appeared not to have been withdrawn and the Court of Appeal has proceeded as if the ease had never been withdrawn,
- My view, in the circumstance, is that since the previous Government had decided to withdraw this case, and there is evidence so to show, it will not serve any useful purpose pursuing the appeal except, of course, the Military Governor otherwise directs.
- If the Military Governor is in agreement with my view that there is no need to pursue a course of action contrary to that taken by my predecessor in office, I would request that approval be given for formal withdrawal of the suit from the Federal Court of Appeal.
(SGD.)
(C.N. OKOLO The Case should go on
H.A.G. 9 C.J. and there was no reason for the
21st May, 1984 withdrawal by pervious Attorney-General
File No. L.5258. (SGD.) 22/5/84”
Mr. Okolo’ request for approval for “formal withdrawal” of the appeal would appear to imply that Mr. Obasuyi’s withdrawal was not a “formal withdrawal”. As can be seen above the Governor, in an apparent inverted swapping of duties with the Attorney-General, directed the new Attorney-General, Mr. Okolo, to proceed with the appeal as
“there was no reason for the withdrawal by the previous Attorney-General.”
Mr. Obasuyi’s “withdrawal” was now, in this exercise, “withdrawal”. It will be seen later whether there was a legal provision for the withdrawal of a withdrawal. One A.D.E. Fregene, signing for the Solicitor General and Permanent Secretary, Ministry of Justice, Benin city, filed a motion seeking leave to file and argue additional grounds of appeal before the Court of Appeal. The Plaintiff/Respondent then filed a notice of a preliminary objection dated 20th July, 1984 stating that the withdrawal of the Appeal by Mr. Obasuyi meant that the appeal was deemed to have been dismissed.
It was on this ‘preliminary objection that the Court of Appeal gave its ruling on 30th October 1984, holding (per Pepple, J.C.A.) that:
“the purported notice of withdrawal served on the respondent and filed in ,the Court below on 15th April 1983 was not given under Order 3 Rule 18(1) of the Court of Appeal Rules”, and that accordingly it “is incompetent, and is not before this Court”.
The plaintiff/appellant has now appealed to this Court against that ruling and it is that appeal with which this Court is now seized upon grounds of appeal, filed by the appellant, which read as follows:
(i) The learned Justices of Appeal erred in law when they unanimously held through the judgment delivered “by B.B. Pepple J.C.A. that the notice of withdrawal of appeal filed by the Appellant was incompetent because it was filed in the High Court and also addressed to the Principal Registrar, High Court, Benin City whereas the said notice of withdrawal materially conformed with Order 3, Rule 18(1) of the Court of Appeal Rules.
PARTICULARS
(a) It was not disputed (as stated in pages 2 and 4 of the Judgment) that the Appellant filed a notice of withdrawal in the High Court, Benin City and that the said notice was filed long before the appeal was entered in the Court of Appeal, Benin City and served on the Respondent.
(b) The said notice of withdrawal brought under the correct rule of the Court of Appeal expressly and unambiguously indicated the appellant’s intention to withdraw the said appeal.
(c) In the circumstances, even if the Court of Appeal were to be right in deciding that the notice of withdrawal ought to have been addressed to and filed in the Court of Appeal, the appellant’s action in this case would at best, amount to mere Irregularities which ought not to vitiate the manifest intentions of the appellant as contained in his notice of withdrawal.
(ii) The learned Justices of the Court of Appeal, Benin City erred in law when they failed to consider the effect of the notice of withdrawal having been filed before the appeal was entered or the records of proceedings (as stated in the Civil Form 10 of 22nd February, 1984 served on Respondent/Appellant) sent to the Court of Appeal.
PARTICULARS
(a) The notice from the High Court Registrar stating that the records of appeal had been forwarded to the Court of Appeal is dated the 22nd of February, 1984 (as per the Civil Form 10 served on the parties).
(b) The notice from the Registrar, Court of Appeal informing parties that the appeal had been listed for hearing i.e. entered in the cause list, is dated 26th April, 1984.
(c) The notice of withdrawal is dated the 14th of April, 1983 and filed on the 15th of April, 1984.
(d) In that circumstances, the Justices of the Court of Appeal were clearly in error in considering the effects of Order 1, Rule 22 of the Court of Appeal Rules as same is only relevant to applications and documents filed after an appeal is entered in the Court of Appeal.”
Counsel have filed their briefs and amplified the same in their lucid and painstaking oral arguments before this Court. The gist of their submissions runs thus:
Mr. Asemota submitted that the Attorney-General, Mr. Obasuyi, was right in filing his notice of withdrawal in the High Court and referred to the Court of Appeal Rules Order 3 Rule 18(1) which states that an Appellant may at any time before the appeal is called on for hearing serve on the parties to the appeal and file with the Registrar a notice to the effect that he does not intend further to prosecute the appeal.
The “Registrar” there, he submitted, is defined as a Registrar of the Court of Appeal but he has referred in Order 1 Rule 22 in which it is stipulated that after an appeal has been entered and until it has been finally disposed of, the Court shall be seized of the whole of the proceedings as between the parties thereto, and except as may be otherwise provided in the Rules, every application therein shall be made to the court and not to the Court below, but any application may be filed in the court below for transmission to the Court. He argued that those last words.
“but any application may be filed in the court below for transmission to the Court”
are not governed by the words
“After an appeal has been entered.”
Therefore, he submitted that a document meant for the Court of Appeal could be filed in the High Court for transmission to the Court of Appeal. He pointed out that Mr. Obasuyi’s notice of withdrawal was headed “In the Court of Appeal” and referred to the Court of Appeal Rules. He therefore concluded that the notice of withdrawal filed by Mr. Obasuyi, the then Attorney- General, was effective and that under the Rules of the Court of Appeal the appeal filed by the Attorney-General in 1983 stood dismissed.
Mrs. Akomolafe- Wilson, Principal State Counsel, Bendel State, on the other hand argued that the purported withdrawal notice filed by Mr. Obasuyi did not comply with Order 3 Rule 18(1) of the Court of Appeal Rules. It was not, she said, addressed to the Registrar of the Court of Appeal. While agreeing that the Attorney-General, Bendel State, Mr. Obasuyi, had the power to withdraw the appeal when he did so in 1983, she argued that this was
“subject to the intention of his client”.
She argued that it was not the intention of his client to withdraw the appeal, implying thereby that it was the intention of the Governor who gave the directive on 22nd May 1984 that the appeal should be proceeded with. Mrs. Akomolafe- Wilson did not however make it quite clear who the client of the Attorney-General was – the Governor of the State or the Government of the State. She finally conceded, after her attention was drawn to Order 3 Rule 18 (5) – which provides that an appeal which has been withdrawn under that Rule, whether with or without an order of Court, shall be deemed to have been dismissed – that if an appeal has been properly withdrawn the case was finished and stood dismissed.
One fact is certain in this appeal, namely that the Attorney-General of Bendel State, Mr. Obasuyi, in exercise of his powers as Attorney-General, filed the notice of appeal dated 14th April 1983 in the High Court of Benin. Another fact fundamental, and this is a common ground, is that when he filed that notice of withdrawal he was, in fact and in law, the Attorney-General of Bendel State and had the power in that capacity to validly withdraw the appeal. By section 191(1)(c) of the Constitution of the Federal Republic of Nigeria
“The Attorney-General of a State shall have power –
(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.”
By sub-section 2 thereof he could exercise his powers personally or delegate them to the officers of his department. Subsection 3, however, demands of him that- in exercising those powers he should have regard to public interest, the interests of justice and the need to prevent abuse of legal process.
And so, In criminal matters the Attorney-General has the power under the 1979 Constitution to discontinue criminal prosecutions.
But even apart from the 1979 Constitution, the Attorney-General has the power under the Common Law to discontinue criminal prosecutions. This Court found it necessary to make that clear in The State v. S.O. Ilori and 2 Others (1983) 2 S.C. 155 where it construed the provisions of Sections 160 and 191 of the 1979 Constitution. At pages 178-9 the Court held that:
“‘The pre-eminent and incontestable position of the Attorney-General, under the common law, as the Chief Law Officer of the State, either generally as a legal adviser or specially in all court proceedings to which the State is a party, has long been recognised by the courts. In regard to these powers, and subject only to ultimate control by public opinion and that of Parliament or the Legislature. The Attorney-General has, at common law, been a master unto himself, law unto himself, and under no control whatsoever, judicial or otherwise, vis-a-vis his powers of instituting or discontinuing criminal proceedings. These powers of the Attorney-General are not confined to cases where the State is a party. In the exercise of his powers to discontinue a criminal case or to enter a nolle prosequi, he can extend this to cases instituted by any other person or authority. This is a power vested in the Attorney-General by the common law and it is not subject to review by any court of law. It is, no doubt, a great ministerial prerogative coupled with grave responsibilities.”
It is necessary to emphasize that the power applies “in all court proceedings to which the State is a party”. Even before the 1979 Constitution, in civil claims, the Attorney-General, under the Petitions of Right Act Cap. 14 Volume 5 laws of the Federation of Nigeria and Lagos 1958, was the one sued where an individual had a claim against the Government and was the one who instituted action on behalf of Government where Government had a claim against an individual (See: Sections 2 and 3 of the Petitions of Right Act, Cap. 149 and the amending law, L.N. 122 of 1964). With the coming into force of the 1979 Constitution, by section 6 thereof, the Government of the Federation or of a State is liable to be sued, like any other individual, by any person aggrieved by its act without reference to the Petitions of Right Act. In civil cases in which the Government is sued, the Attorney-General is the defendant, or at least the nominal defendant. In the instant appeal he is the defendant having been sued as representing the Government of Bendel Slate. He was, therefore, entitled to withdraw an appeal in which he was the defendant in his capacity as such defendant. In this case on appeal, therefore, whether, one looked at the Attorney-General, Mr. Obasuyi, in his capacity as the defendant in the action (as indeed he was) or in his capacity as Counsel for the Government of Bendel State, he had the right and the capacity to discontinue the appeal. There was a presumption that he had all the necessary authorization to withdraw the’ appeal when he did withdraw the appeal.
The questions anyone dealing with this appeal would like to ask himself are:
(a) Was there an intention to withdraw the appeal by a person competent under the law to withdraw
(b) Did he act to implement the intention
(c) After the intention to withdraw was acted upon, was there anything left on which the Respondent could withdraw his withdrawal The resolution of this appeal will depend on the answers to these questions. There was no doubt that the Attorney-General, Mr. Obasuyi, intended to withdraw the appeal. There was equally no doubt that he acted to implement that intention by filing a notice of withdrawal on 15th April 1983- admittedly – in the High Court of Benin. It was the duty of the Registrar of the High Court of Benin to transmit to the Court of Appeal all papers, in connection with the appeal, filed by the parties. The argument of the Respondent was that the filing of the notice of withdrawal in the High Court, Benin, rendered the notice a nullity. I cannot accept that view. Order 1 Rule 22 of the Court of Appeal Rules, 1981, makes a clear distinction between the making of an application and the filing of an application. After an appeal has been entered
“every application therein shall be made to the Court”.
Whereas the making of an application is to the Court that has the power to grant it, the filing of application may be done in any office or place designated for the purpose by the Rules. Hence in dealing with the act of filing an application Order 1 Rule 22 say:
” … but any application may be filed in the Court below for transmission to the Court”.
Moreover, it must be noted that on 15th April 1983when the Attorney-General Mr Obasuyi filed the notice of withdrawal in the High Court, Benin, the records had not been compiled by the Registrar of the High Court and therefore nothing had yet reached the Court of Appeal for the purpose of the appeal being “entered” by the Court of Appeal. Order 1 Rule 22 of the Court of Appeal Rules contains the exact wordings of Order VII Rule 19 of the Supreme Court Rules 1961, L.N. 96 of 1961 (originally enacted as the Federal Supreme Court Rules) on which Ogunremi and Another v. Dada and Others (1962) 1 All N.L.R. 663 was decided by the then Federal Supreme Court and entered in the Cause List.
Indeed, Mr. Obasuyi, has to be commended for taking prompt action to see that the appeal he filed against the judgment of the High Court (once he made up his mind to withdraw it) was not proceeded, with by the Registrar thus saving (if the Registrar had acted properly) the tax payer financial loss and the parties concerned, time, energy and costs. But rather than commend him for his timeous action in filing the notice of withdrawal, he is being pilloried by the Respondent on the platform of procedure albeit erroneously. It is my view that the notice of withdrawal was validly filed by the Attorney-General. Mr. Obasuyi at the High Court, Benin. ‘
I now turn to the activities of the Solicitor-General of the Bendel State and the officers working under him in derogation of the exercise by the Attorney- General of his power of withdrawal of the appeal. I have never heard before of a Solicitor-General, or least of all, the officials working under him, challenging the authority of his Attorney-General and countermanding the exercise by him of that authority. The nearest we have got, in this country, of anything like a clash of authority between an Attorney-General’s functions and those of the Solicitor-General was in SC.149/1984 Attorney-General, Kaduna State v. Mallam Umaru Hassan decided by this Court on 12th July, reported in (1985) 2 N.W.L.R. 483 but that was not as bad as in the instant appeal since in that case there was no incumbent Attorney-General.
What happened in that case was that the post of the Attorney-General of Kaduna State was vacant. The solicitor-General of Kaduna State felt that in the absence of an Attorney General he could exercise the powers of the Attorney-General as contained in section 191 of the 1979 Constitution of Nigeria by purportedly entering nolle prosequi to terminate the proceedings of a murder trial being conducted in the High Court, Kaduna State. The complainant in the murder trial challenged, by originating summons, this purported exercise by the Solicitor-Genertal of the Attorney General’s powers. The High Court held that the Solicitor-General had no right to enter the nolle; the Court of Appeal (by majority) upheld that ruling. On a further appeal, this Court confirmed the judgment of the High Court that the Solicitor-General was not possessed of the powers to enter a nolle. I may be permitted to refer to what I said in the appeal:
“What this Court said in The State v. Ilori and Others (supra) is sufficient for the statement that the powers of the Attorney-General of a State (and therefore of the Kaduna State in this appeal) are personal to him and are “exercisable personally by him. Ideally, I think the makers of the Constitution were wise to make it so, because whereas the Solicitor-General, the Director of Public Prosecutions and all the other officers down the line, in the Ministry of Justice, are by designation, civil servants who are not answerable politically for acts done in the Ministry, the Attorney-General is both the legal as well as the political officer who is answerable politically for acts done in that Ministry and since the powers exercisable under section 191 of the Constitution, in many cases, may have political over-or-under tone, even though those powers have to be exercised with due regard
“to the public interest, the interests of justice and the need to prevent abuse of legal process”,
it is only right that the person who has to bear the brunt and responsibility of the political ‘fall-outs’ of any decision taken under that section, should solely be responsible for taking the legal decisions required under the section. Put in another way, it is he who has to take the rap for the decisions taken; it is only fair that he should be left solely with the juridical power to take the steps resulting in those decisions. so that whatever may be the political effect of the legal steps he has taken, he is fully and personally answerable for them – for good or for evil.”
There is, therefore, no question that in the instant appeal the Solicitor-General of Bendel State could treat the notice of withdrawal filed by the Attorney-General of the State as if it was non-existent or tell the Registrar of the High Court, Benin, to ignore it and proceed with the compilation of the Record of Appeal and transmission of the said Record to the Court of Appeal. To put it mildly, the conduct of the Solicitor-General in so doing was truculent, impertinent and unconstitutional.
The office of the Attorney General was created in England, and the incumbent first called the Attorney-General, in the year 1461 while the post of the Solicitor General dates from 1515. The Solicitor-General is a subordinate of the Attorney General and in England he deputizes for the Attorney-General if the office becomes vacant or if the Attorney-General is absent or is ill or is authorised by him to do so. (See: 6th Edition of Hood Phillip’s Constitutional and Administrative Law pp.334-336).
But in Nigeria, under the 1979 Constitution, the Attorney-General is the one invested with authority under section 191 of the Constitution – authority which is personal to him unless, in exercise of the powers granted to him under S.191(2), he delegates any of his powers to officers of his department who would include the Solicitor-General.
Having held that the withdrawal notice filed by Mr. Obasuyi was validly filed, Order 3 Rule 18 of the Court of Appeal Rules would automatically take effect. By sub-rule 5 of Rule 18
“An appeal which has been withdrawn under this Rule, whether with or without an order of the Court, shall be deemed to have been dismissed.” (Italics mine).
This sub-rule 5 is in identical terms with Order 7 rule 17(5) of the Supreme Court Rules 1977 and the current Order 8 Rule 6(5) Supreme Court Rules 1985. The effect of the withdrawal notice filed by Mr. Obasuyi, in my view, was to terminate the appeal filed against the judgment of the High Court, with or without an order of Court.
If the effect of the filing of the withdrawal notice was the dismissal of the appeal as indeed it was, the question of estoppel raised by the appellant in this appeal to which objection has been raised by the Respondent, will pale into an inconsequential issue. The Respondent has argued that the matter was not raised by the Appellant in the Court of Appeal and he could not therefore be allowed to raise it, for the first time, in this Court. With every respect for Respondent’s Counsel, although estoppel was not argued per se by the appellant before the Court of Appeal, all the facts needed for raising the issue of estoppel were there before the Court of Appeal, namely,
(i) that the Attorney-General Mr. Obasuyi signed a notice of withdrawal of the appeal and filed it in the High Court, Benin City;
(ii) that the appellant was served with a copy of the notice of withdrawal.
The question is: Could the Solicitor-General working under Mr. Obasuyi, or a later Attorney-General, somersault to resile from the position thus created, in order to demand that he be allowed to proceed with the appealCall it estoppel or not, but these are the facts upon which the Appellant says the Respondent cannot blow hot and cold. Watson v. Cave (No.2) (1881) 17 CH.D.23 is clearly a good example. In that case the defendant in an action, having given notice of appeal against an order made on 17th December, 1980, wrote to the plaintiff saying he proposed to withdraw the appeal and asking the plaintiffs consent which was granted. Two days later the defendant wrote to say he was under a misapprehension as to a material fact and wanted to withdraw his withdrawal and proceed with the appeal. The Court of Chancery held that the defendant had no power to revoke his withdrawal and therefore the appeal could not be heard. In delivering his judgment, James L.J., held that the defendant’s letter withdrawing the appeal must be treated as a formal notice by the appellant of his intention to withdraw his appeal and to avoid further costs.
Lush L.J., in concurring with the judgment of Lord James, treated the letter of withdrawal to which the plaintiff gave his consent as creating a contractual relationship binding upon the parties. He said:
“I am of opinion that when the proposal of the Appellant had been accepted, there was a contract constituted from which the Appellant was not at liberty to recede”.
The summation of the principle, without couching it in any technical legal phraseology, is simply this, that a gentleman is bound by his words and that, therefore, where by his words or conduct, he has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it will be unjust or inequitable, to that other, for him to do so. Put in popular parlance ‘a gentleman’s word is his bond’.
The facts on which estoppel by conduct could have been argued, stricto sensu, before the Court of Appeal were there and if this appeal had turned upon the validity of taking that point, or the desirability of allowing that point to be taken, I would quite certainly have allowed the point to be taken as being a necessary legal conclusion to be drawn from the facts placed before the Court of Appeal and before this Court. As it has turned out, however, Order 3 Rule 18(5) of the Court of Appeal Rules 1981 has brought into being the legal effect of Mr. Obasuyi’s withdrawal, without the necessity of resorting to the equitable doctrine of estoppel.
One final point is necessary to be mentioned before I conclude this appeal. The case involved the constitutional right of a subject not to be deprived of his property. Respondent’s counsel Mrs. Akomolafe-Wilson, in her brief, at paragraph 1. I put the matter thus:
“The Respondent/Appellant, the Plaintiff in the lower court, (hereinafter referred to as the Appellant) filed an action in the High Court of Benin City for a declaration that the forfeiture order made in respect of his property pursuant to investigation of assets he made unconstitutional, null and void in that he was not investigated but “that the property was forfeited against the name of his son who was a public officer and a subject of the investigation of public officers panel.”
Section 40(1) of the Constitution of the Federal Republic of Nigeria protects the movable property or any interest in an immovable property of a citizen from compulsory acquisition. The section reads:
“40 _(1) No movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things-
(a) requires the prompt payment of compensation therefor; and.
(b) gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a Court of law or tribunal or body having jurisdiction in that part of Nigeria.”
Even with the amendment made by the Military in 1984, on coming into power, in the added (1)(A) to section 40 which provides that
“Notwithstanding the foregoing provision, the Federal Government may by Decree provide for the forfeiture of any property, right or interest described therein which has been illegally acquired by any officer in the public service of the Federation or a State or any other person”, the forfeiture of the affected property can only be ordered where it is proved that the property had been “illegally acquired”. If all the allegations made in this case were against the civil engineer Daniel Osahon Uhimwen and not against his father, M.U.O. EZOMO, and the house in dispute belongs to the said M.U.O. Ezomo, there could be no foundation for the compulsory acquisition of the house by Government. The trial Judge had every good reason to decide the way he did and therefore, the Attorney-General, Mr. Obasuyi, must have had solid reasons for withdrawing the appeal.
By reason of all the foregoing I must allow this appeal and hereby allow it. The judgment of the Court of Appeal dated 30th October 1984 which overruled the objection of the appellant as contained in the appellant’s notice of preliminary objection dated 20th July 1984 is erroneous and in its place it is hereby adjudged:
(1) that the preliminary objection was well founded;
(2) that the withdrawal notice dated 14th April 1983 filed by the Attorney- General of Bendel State, of the appeal against the judgment dated 10th October, 1980 of the High Court, Benin, per Uwaifo, J., was validly filed and had the effect of a dismissal of the appeal;
(3) that the judgment of the Court of Appeal dated 30th October 1984 which over-ruled that preliminary objection was erroneous in law and is hereby set aside; and
(4) that the dismissal of the appeal against the said judgment of Uwaifo, J., following the filing of that notice of withdrawal by the Attorney-General Mr. Obasuyi, is hereby confirmed.
The Appellant is hereby awarded N300.00 costs.
ESO, J.S.C. (Presiding): I have had a preview of the judgment just delivered by my learned brother Aniagolu J.S.C. in this case and as I am in complete agreement with his reasons and conclusion I have decided to add nothing to the reasoning. Appeal is allowed accordingly. I abide by all the orders.
UWAIS J.S.C.: I have had the advantage of reading in draft the judgment read by my learned brother, Aniagolu, J.S.C. I entirely agree with the judgment. The appeal is therefore allowed with N300.00 costs to the appellant.
COKER, J.S.C.: I agree that this appeal be allowed for reasons given in the lead judgment just delivered by Aniagolu, J.S.C., a draft of which I have earlier read.
The facts and contentions have been clearly stated in the lead judgment and is needless to repeat them. One fact remains clear. The incumbent Attorney-General at the material time was Obasuyi, who, was the dissatisfied defendant who filed the Notice of Appeal. True he was the representative of the Bendel State Government and it was he who filed the Notice of Withdrawal pursuant to Order 3 Rule 18(1) of the Court of Appeal Rules, the of which are set out in the lead judgment of my learned brother.
In S.C.26/1985: Festus L. Adewunmi v. Plastex Nigeria Ltd. (1986) 3 NWLR (Pt. 32) 767, the question of right of counsel to withdraw an appeal filed on behalf of his client was considered. It was there held that counsel representing an appellant has the authority to withdraw the appeal even without consultation with his client in as much as such power is not collateral but part of his implied authority as agent of his client, excepting he has specific instructions to the contrary, and provided counsel on the other side was aware of the limitation to his general authority.
I agree that it is proper under Order 1 Rule 22 to file the Notice of Withdrawal in the trial court for transmission to the Court of Appeal, and particularly, as in the instant case, when the appeal had not been entered in the latter court as provided in Order 3 rule 13 sub-rule 2 of the Court of Appeal Rules.
Since the Notice of Withdrawal was filed pursuant to Order 3, r.22(1) the appeal was deemed to have been dismissed, even without an order of the Court as provided in sub-rule 5 of the aforesaid rule 18. The result was that there was no longer any subsisting appeal in the court below. There was no need for any formal order of the court to give effect to the dismissal for by the rule, it was deemed to have been dismissed.
I agree that the appeal be allowed and with the other orders made by Aniagolu, J.S.C. together with the order for costs.
SC.65/1985
