Attorney-general Of The Federation V. Manufacturers Association Of Nigeria & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
MSHELIA, J.C.A.
On the 2nd day of November, 2006, the applicant filed a motion before this court praying for the following orders: –
(1) AN ORDER extending the time within which the party interested/applicant may apply for leave to appeal against the decision of the High Court of Lagos State, in suit No. ID/105M/2001, contained in the ruling of Honourable Justice O. M. Falase (Mrs.), delivered on 14th day of November, 2002, as party having an interest in the matter.
(2) AN ORDER granting leave to the party interested/applicant, to appeal against the decision of the High Court of Lagos State, in suit No. ID/105/2001, contained in the ruling of Honourable Justice O.M. Falase (Mrs.), delivered on 14th November, 2003, as party having an interest in the matter.
(3) AN ORDER for enlargement of time within which the party interested/applicant, may file his notice of appeal against the decision of the High Court of Lagos State, in suit No. ID/105M/2001, contained in the ruling of Honourable Justice O.M. Falase (Mrs), delivered on 14th day of November, 2003.
As an addendum to his prayers, the applicant set out the following as the grounds of his application –
“1. The applicant was not made a party to suit No. ID/105M/2001, instituted before Honourable O.M. Falase (Mrs.), of the High Court of Lagos State, throughout the trial and determination of the case.
- The court below delivered a judgment which nullified parts of decree No. 102 of 1993 and No. 21 of 1998, promulgated by the Federal Government without the joinder of the applicant as a party to the case.
- The respondents and the court were under a duty to make the applicant a party to the case in all cases affecting the validity or otherwise of a Federal legislation at the lower court.
- The judgment of the court below prejudicially affects the rights and interests of the applicant.
- The order made by the trial court is being relied upon by respondents and their allies, to avoid payment of taxes due to the Federal Government of Nigeria and the State Government alike.”
There is an affidavit of 13 paragraphs in support of the said motion to which has been exhibited a copy of the judgment of the lower court and the proposed grounds of appeal. These documents are marked exhibits ‘A’ and ‘B’ respectively. A further affidavit of 8 paragraphs was also filed by the applicant. A clearer copy of exhibit ‘A’ the judgment of the lower court was attached.
In reaction to the application, 1st-17th respondent did not file counter-affidavit, while the 18th-19th respondents did file a 15 paragraphed counter-affidavit.
Arguing the application, Adebayo Esq. of counsel for the applicant submitted that before the court can exercise discretion to enlarge time to appeal against the decision of the lower court, applicant must show good and substantial reasons why it could not appeal within the time allowed and the grounds of appeal must prima facie show good cause why the appeal should be heard. He relied on all the paragraphs of the main affidavit in support and the further affidavit. Counsel referred particularly to paragraphs 4, 5 and 6 of the main affidavit in support and contended, that applicant only became aware of the matter on 24/04/04 when time to challenge the decision has already elapsed, hence this application. Learned counsel referred to paragraph 6 of the 18th and 19th respondent’s counter-affidavit and contended, that the reason advanced to the effect that applicant was aware of the pendency of the matter before the lower court, but chose to stand by, is not tenable. Learned counsel contended that applicant was not joined as a party and Chief Afe Babalola, SAN, only represented the 1st-17th respondents at the initial stage of the case, before the lower Court because another counsel was briefed to conclude the case. Applicant in his view had advanced good and substantial reasons for the delay.
On the second prayer, i.e., seeking leave to appeal as an interested party, learned counsel contended that applicant must satisfy two conditions (1) that he was not aware of the pending suit (2) that judgment directly affects his interest. He relied on paragraph 3(b) of the supporting affidavit and contended, that relief directly challenged the Federal Legislation. The effect of the decision is that plaintiffs should obey State Legislation, rather than Federal Legislation. In support of his contention he referred to the cases of Williams v. Mokwe (2005) 14NWLR (Pt 945) 249 at 268 – 269; and Kalu v Odili (1992) 5 NWLR (Pt. 240)130 at 131-132. Furthermore, counsel contended that any action that challenges or puts to test any Federal legislation deserves representation of the Federal Government. He urged the court to grant the prayers sought.
Owoyele Esq of counsel to the 1st -17th respondents intimated the court that he was not opposing the application.
On the part of the 18th and 19th respondents, the Director Civil Litigation, Lagos State Ministry of Justice, Lawal Pedro, opposed the application. He relied on all the paragraphs of the counter- affidavit. For the grant of an application of this nature, he contended that applicant not being a party to the suit, must show sufficient interest in the subject – matter of the dispute at the lower court. To be entitled to appeal, party ought to show that their interest would be affected. He referred to the relief sought before the lower court at page 2 of exhibit ‘A’ the judgment sought to be appealed against. Learned counsel submitted that, it was state law that was challenged before the lower court and other relief which did not affect the interest of the applicant. Counsel contended that the judgment of the court was in line with the relief sought as such applicant is an interloper since they have nothing to do with the matter. Learned counsel submitted that, the proposed grounds of appeal are not substantial or arguable. The grounds of appeal did not arise from the decision of the lower court. It was contended that the grounds raised fresh issues not canvassed in the court below against 18th and 19th respondents. Particular reference was made to ground 1.
Learned counsel contended that applicant had failed to satisfy the conditions for grant of an application of this nature.
In a further argument, learned counsel submitted that applicant do not merit the discretion of this court because the only valid complaint shown, is that the provisions of the Federal Act, that was not in dispute in the lower court, was mentioned in passing by the trial Judge as being unconstitutional and not the sales tax law that was challenged before the court. He said the decision was obiter which could not ground valid appeal. He cited the cases of Abacha v. Fawehilnmi (2000) 4 SC (Pt. 11) 1 at 66 – 67; (2000) 6 NWLR (Pt. 600) 228; and Dakur v. Dapal (1998) 10 NWLR (Pt. 571) 573 at 587 to support his submission.
It was further contended by counsel, that assuming the VAT Decree was declared invalid (though not conceding), the case of validity of a statute will not be sufficient ground of making the maker, a necessary party to the case or an appeal arising from that decision. See Peenok v. Hotel Presidential (1983) 4 NCLR 122. In conclusion, counsel argued that the applicant had failed to give good and substantial reason for failure to appeal within time as such the application should fail and same dismissed. See in Re: Adewunmi (2000) 10 – 11 SC 1; (1988) 3 NWLR (Pt. 83) 483.
In reply on point of law, Adebayo contended that the facts in the case of Peenok v. Hotel Presidential supra relied upon by counsel to the 18th and 19th respondents are distinguishable from the facts as stated in the case at hand. Learned counsel submitted that, the nullification of the Federal Act affected the revenue of the Federal Government, while the case of Peenok v. Hotel Presidential had nothing to do with revenue of the Federal Government.
A certified copy of the judgment applicant is seeking to appeal against was delivered on the 14th day of November, 2003. From the affidavit evidence and the documents exhibited along with the application, it is evident that applicant was not a party to the suit in respect of which the judgment sought to be appealed from was given and did not participate in the hearing leading to the judgment.
From the reliefs sought, applicant is essentially seeking for two main reliefs. First, it is seeking enlargement of time within which to seek leave to appeal. Secondly, it is seeking to do so as an interested person. Applicant therefore has two sets of conditions to fulfill in order to succeed in its application. First, it must fulfill conditions for obtaining enlargement of time. Secondly it must fulfill the conditions for obtaining leave to appeal as an interested person. Applicant is required to satisfy both sets of conditions at once. If it fails to satisfy either set of conditions then the entire application is doomed to failure.
In considering the two sets of conditions, I find it convenient to start with the one relating to enlargement of time. The conditions are set out under order 3 Rule 4(2) now Order 7 rule 10(2) of the new Court of Appeal Rules 2007 which provides as follows:
“10(2) Every application for enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal, within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal”.
The language of this provision is clear enough. To succeed in its application the applicant is duty bound to file an affidavit, which must set forth good and substantial reasons for failing to appeal, or seek leave to do so within time. The second condition is that the proposed grounds of appeal must, prima facie, show good cause why the appeal should be heard. The two conditions must be satisfied conjunctively before enlargement of time can be granted. See In Re: Adewumi & Ors (1988) 3 NWLR (Pt. 83)483; and Co-operative and Commerce Bank (Nigeria) Ltd v. Emeka Ogwuru (1993) 3 NWLR (Pt. 284) 637.
With regards to whether good and substantial reasons have been given for failing to act within the stipulated period the applicant relies on paragraph 4 of the supporting affidavit which read:-
“4. That upon becoming aware of the said judgment the party interested/applicant filed a motion on notice dated 24th April, 2004 before the said court seeking leave to appeal as an interested party”.
The facts that a suit in which applicant had interest were pending but that he did not know and was not made a party thereto are facts which if proved, would entitle an applicant for leave to appeal as a person interested to be let in to so appeal either by the High Court or the Court of Appeal. In the instant case, applicant maintained in its affidavit in support that, it only became aware of the judgment sought to be appealed against which was delivered on 14/11/03 on 24/04/04. By then time to challenge the judgment had expired. In paragraphs 4, 5 and 6 of the affidavit in support applicant averred that it took action immediately by filing application to this court seeking leave to appeal as an interested party. I agree with the submission of applicant’s counsel that the averments in paragraph 6 of the counter-affidavit of the 18th – 19th respondents cannot be accepted as good reason to say that applicant was aware of the pendency of the matter before the lower court. Applicant was not a party in the suit instituted by the 1st – 17th respondents before the lower court. Chief Afe Babalola SAN only represented 1st-17th respondent at the initial stage because another counsel was briefed to handle the case. Therefore I cannot see how his appearance in the present application could be a ground to say that applicant had knowledge of the pendency of the matter before the lower Court. The applicant not being aware of the pendency of the case and the judgment subsequently delivered in the matter could not have appealed within the prescribed period.
I have looked at the exhibited proposed grounds of appeal. I cannot say that they are not arguable. Prima facie they contain arguable materials and are not frivolous. See Obikoya v. Wema Bank Ltd. (1989) 1 NWLR (Pt.96) 157. For purposes of emphasis, I will reproduce just 2 out of the 12 proposed grounds of appeal. Grounds 1 and 2 read as follows:-
“Ground of Appeal
3(1) The learned judge erred in law in assuming jurisdiction over the case when the action was not properly constituted.
Particulars
(a) The applicant’s reliefs and issues therefrom were for the determination of the validity and effect of Decree 102 of 1993 and Decree No. 21 of 1998 which are federal enactments.
(b) The Attorney-General of the Federation was not however made party to the case.
(c) The Attorney-General of the Federation being the Chief Law Officer of the Acts in question is a necessary party to the case without whom the action was not properly constituted.
(2) The learned trial judge erred in law in assuming jurisdiction over this case when properly construed, the court lacked jurisdiction to entertain the case.
Particulars
(a) The plaintiff’s action, properly construed is for a relief against the Federal Government of Nigeria and or any of its agencies.
(b) The law is that it is only the Federal High Court that has jurisdiction in respect of any matter in which the Federal government or any of its agencies is a party.
(c) The High Court of Lagos State lack jurisdiction in the circumstances to entertain the suit.”
I therefore see no reason why the appeal based on them should not be heard. The point raised by the 18th and 19th respondents counsel, regarding raising of new issues in the proposed grounds of appeal, is a matter that cannot be resolved at this stage. What is important at this stage is for applicant to show that the proposed grounds of appeal, prima facie, are arguable. Whether or not the appeal will succeed, is another matter which need not concern us here.
The only reasonable conclusion that one can reach in that circumstances, is that the applicant has in its supporting affidavit satisfactorily explained its failure to appeal within the prescribed period and I so conclude.
The result of all that I have said is that applicant has satisfied the conditions for the grant of enlargement of time. If it can show that it is indeed, an interested person, as recognized by law, then time will be enlarged for it to appeal. If however, it fails to make such a showing, enlargement of time will still be refused notwithstanding that it fulfilled all the conditions for it. This is because extension of time will serve no useful purpose in the circumstances.
That then brings me to the second set of conditions, namely those relating to application for appealing as an interested person. Has the applicant fulfilled this set of conditions?
The right of a person to appeal against the decision, given in which he was not a party and at the hearing of which he did not participate is conferred by section 243(a) of the 1999 Constitution, which provides:
“243. Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be –
(a) exercisable in the case of Civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal, at the instance of any other person having an interest in the matter…
By this provision, all that a person needs to do to bring himself within it, is to show that he is a person “having an interest in the matter”. The expression “person having interest” has been defined as synonymous with ‘person aggrieved’ – meaning a person who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something. See Ikonne v. C.O.P & Anal: (1986) 4 NWLR (Pt. 36) 473 at 503; Ojukwu v. Governor of Lagos State (1985) 2 NWLR (Pt. 10) 806; III Re: Madaki (1996) 7 NWLR (Pt. 459) 153; and Williams v. Mokwe (2005) 14 NWLR (Pt. 945) 249.
The relevant portion of the affidavit in support which showed the nature of the interest is paragraphs 3(a) – (m).
For ease of reference and emphasis, I will reproduce same hereunder
“3a. That the 1st -17th respondents instituted suit No. ID/105M/2001 in the court below against the 18th to 19th respondent before His Lordship, Hon Justice O.M. Falase (Mrs.) of the High Court of Lagos State
b. That relief sought was whether or not Sales Tax Law of Lagos State is not void for being inconsistent with the provisio of the Value Added Tax Decree No. 102 of 1993 and Tax and Levies (Approved list For collection) Decree No. 21 of 1998 and whether the Decree are enforceable in Lagos State.
c. That the said Decrees No. 102 of 1993 and No 21 of 1998, which the 1st to 17th respondents were challenging are Federal Legislation.
d. That the party interested/applicant is the representative of the Federal Government of Nigeria, who must be made a party to any suit, where the Federal Government’s interest is involved
e. That notwithstanding the fact that the Decrees sought to be nullified are federal legislation, neither the Hon. Attorney-General of the Federation or any organ of the Federal Government was made a party to the case.
f. That the case was subsequently tried as constituted by the court below and on 14th November, 2003, his Lordship Hon Justice O.M. Falase (Mrs.) who presided over the case delivered a considered judgment is herewith attached and marked exhibit A.
g. That in the judgment, his Lordship made copious finding against the said Decree No. 102 of the 1993 and decree No.21 of the 19998 and thereafter declared part of the two Decrees null and void.
h. That decision of his Lordship of the court below, is prejudicial to the interest of the applicant as the decision has the effect of reducing drastically the revenue accruable to the Federal Government of Nigeria under the Decrees
i. That the party interested/applicant was not heard at all before the Decrees made for the benefit of the Federal Government and all the states government were nullified by the court below.
j. That the party interested/applicant is entitled to be heard by the lower court before the court can strike down any of the Decrees of the Federal Government or Acts of the National Assembly.
k. That prior to the decision of the Court below, the party interested/applicant, has been enforcing the provisions of the Decrees herein against the respondents and has been collecting revenue for the Federal Government which revenue are shared among all the states of the Federation.
l. That following the nullification of parts of the Decrees by the lower Court, the respondents and all other persons obliged to pay tax due under the Decrees have refused to pay tax due from them relying on the orders of the court below.
m. That taxes collected under the two Decrees are put into public use for the benefit of the generality of Nigerians.”
The fact that applicant was not made a party to suit No ID/105M/2001, instituted before High Court of Lagos State throughout the trial and determination of the case is not in dispute. The question is, whether applicant had shown by the affidavit evidence that it had sufficient interest in the subject-matter of the dispute at the lower court. I think it is necessary at this stage to examine the reliefs sought by 1st- 17th respondents before the lower Court. In exhibit ‘A’ the judgment of the lower court, the learned trial Judge at page 2 reproduced all the reliefs sought by the 1st-17th respondent who were the plaintiffs before the lower court. Relief 1 in particular read as follows:
“1. Declaration that the sales Tax (schedule amendment) order 2000 and the Sales Tax Law Cap 175 laws of Lagos State of Nigeria 1994 are inconsistent with, in contravention of and ultra vires the Constitution of the Federal Republic of Nigeria 1999, the Taxes, and Levies (Approved list of collection) Decree No. 21 of 1998: and the Value Added Tax Decree 102 of 1993 and therefore illegal, invalid void and of no effect whatsoever.”
It is apparent that the principal claim of the plaintiffs in the High Court was a challenge on the constitutionality and validity of the Sales Tax Law of Lagos State and not the Value added Tax Act enacted by the party/ interested/applicant. However, as rightly observed by applicant’s counsel the learned trial Judge in his judgment made copious findings against the said Decree 102 of 1998 and thereafter declared part of the two Decrees null and void.
The two Decrees involved are Federal legislations. Applicant is also a representative of the Federal Government of Nigeria who must be made a party to any suit where the Federal Government’s interest is involved. As averred in paragraphs 3(h), (k) and (L) of the affidavit in support the decision of the court below is prejudicial to the interest of the applicant since the respondents and all other persons obliged to pay tax under the Decrees have refused to pay tax due from them relying on the orders of the court below. The 18th – 19th respondents who are contesting this application did not counter the averments in paragraphs 3(h) (k) and (L) of the affidavit in support. The averments are therefore deemed admitted. Applicant had shown that its interest in the matter is genuine and is a desirable party who ought to be given opportunity to be heard. In Green v. Green (1987) 3 NWLR (Pt. 61) 480 at 493, Oputa, J.S.C., stated that desirable parties are those who have an interest or who may be affected by the result of the case. In the final analysis, I hold that applicant has satisfied the two sets of conditions to entitle it to the exercise of courts discretion in its favour. In the circumstances, I will grant the prayers sought as follows:
(1) Time is extended to today for the party interested/applicant to seek leave to appeal against the decision of the High Court Lagos State in suit No ID/105M/2001 contained in the judgment delivered on the 14th day of November, 2003 as party having interest in the matter.
(2) Leave is also granted to the applicant to appeal against the judgment of the lower court delivered on 14th day of November, 2003 as party having interest in the matter.
(3) Time is extended for the party interested/applicant to file its notice of appeal. The notice of appeal shall be filed within 21 days from today and same shall be in terms of the proposed notice of appeal marked exhibit ‘B’ attached to the affidavit in support of this application.
Parties to bear own costs.
Other Citations: (2007)LCN/2541(CA)
