Attorney-general, Rivers State V. Ikenta Best Nigeria Limited & Anor (2003)

LawGlobal-Hub Lead Judgment Report

SUNDAY AKINOLA AKINTAN, J .C.A.

The applicant, the Attorney-General of Rivers State, has by his motion dated 18th August, 2003, prayed this court for the following reliefs:
“(i) Extension of time within which the appellant/applicant can apply for leave to appeal to the Court of Appeal against the judgment of Justice T. K. Osu of the Rivers State High Court delivered on the 16th April, 1996 in suit No. PHC/1097/94.
(ii) Leave to appeal against the judgment of T. K. Osu, J. delivered on 16th April, 1996 in suit No. PHC/1097/94
(iii) Extending the time within which to appeal against the judgment of Justice T. K. Osu, J. delivered on 16th April in suit No. PHC/1097/94.”

The motion was supported with affidavit evidence. It was opposed and to that end counter-affidavits were disposed to and filed. The facts of the case as disclosed in the various affidavits filed in the case are that the applicant and the 2nd respondent were sued as defendants in the claim instituted at the Port-Harcourt High Court in suit No. PHC/I097/94. The plaintiff in the case is now the 1st respondent while the present 2nd respondent was the 1st defendant.

The plaintiff’s claim in the case was for N50,000,000 (Fifty million Naira) damages against the defendants jointly and severally for breach of contract entered into by the parties on the 10th October, 1990 for the acquisition of industrial moulds by the defendants on behalf of the plaintiff for which transaction the plaintiff paid to the defendants the sum of N500,000 (Five hundred thousand Naira) in October, 1990. At the end of the trial, the Learned Trial Judge entered judgment against the two defendants jointly and severally on 16th April, 1996 in the sum of N42,100,000 with N1000 as costs.

In moving the motion, Mr. Ajumogobia, SAN, learned Attorney-General of Rivers State, submitted that from the affidavit evidence placed before the court, the reason for the delay in not appealing within the time prescribed by law is fully explained. He also argued that the proposed grounds of appeal are recondite and arguable. On the question of delay, the learned senior counsel relied on the decisions of Oloko, v. Ube (2001) 13 NWLR (Pt. 729) 161 at 175; and Ukwu v. Bunge (1997) 8 NWLR (Pt. 518) 527 at 529.

In opposing the motion, Chief Onuoha, learned counsel for the plaintiff/respondent referred to the counter-affidavits filed in opposing the application and submitted that the application was caught by the doctrine of res judicata. He based his contention in this respect on the fact that an appeal filed by the present 1st defendant/respondent against the judgment of the lower court of which the applicant was joined as the 2nd respondent, was dismissed for want of diligent prosecution by this court. The suit No. in this court is CA/PH/175/97.

The ruling of this court dismissing the said appeal is attached to the counter-affidavit as Exh.A. It is also submitted that the case cited by the learned senior counsel in support of his submission are inapplicable because those cases dealt with were serious issues of law and no extenuating circumstances existed as in the present case.

Mr. Ajumogobia, SAN, submitted in reply on the question whether res judicata rule is applicable by referring to section 243 of the 1999 Constitution. He then submitted that the applicant had never appealed against the said decision and that the defenses of res judicata is inapplicable.

The facts relied on by the applicant are as set out in paragraphs 5, 6, 7, 8, 10, 11 & 12 of the affidavit in support of the motion. The said paragraphs 5 to 8 and 10 to 12 read as follows:
“(5) The time for the 2nd defendant/applicant to appeal expired on July 15, 1996. Consequently, the order of Honourable Court is needed to extend the time within which the applicant can apply for leave to appeal, leave to appeal and extending the time within which to appeal against the judgment of 16th April, 1996.

(6) That the court processes in suit No. PHC/1097/94, comprising the writ of summons, statement of claim, order for joinder of the 2nd defendant etc were served on the 2nd defendant but were misplaced in the Attorney-General’s Chambers, hence no appearance was entered or defenses filed in the said suit, until judgment was entered against the 1st defendant/respondent and 2nd defendant/appellant jointly and severally and steps taken to execute the judgment with the Attorney-General’s approval. A copy of the said judgment of 16th April, 1996 is hereby attached as ‘Exhibit A’.

(7) That between April 1966 and the 2000, the 1st defendant/respondent entered into prolonged negotiations with the plaintiff/respondent towards the settlement of the judgment debt which broke down.

(8) That the 1st defendant thereafter filed an appeal against the judgment and filed several court processes including motions for stay of execution of the judgment, and motions for instalmental payment of the judgment debt before this Honourable Court and the State High Court.

(9) That the 1st defendant/respondent appeal was eventually dismissed for want of prosecution on the 29th June, 2000.

(10) That no steps were taken to appeal against the judgment of 16th April, 1996 on the part of the Attorney-General because successive Attorney-General felt that not being a party to the contract between the plaintiff and West African Glass Industries Plc., the 1st defendant/respondent, the liability was exclusively that of the 1st defendant/respondent and the first defendant/respondent had indicated that the matter would be settled. Thereafter, when settlement negotiations broke down, the 1st defendant/respondent indicated that it had appealed against the judgment and had substantial grounds of appeal against the judgment.

(11) The 1st defendant/respondent’s appeal was however dismissed on June 29, 2000 for want of prosecution.

(12) That on the assumption of duty of the new Attorney-General, H. Odein Ajumogobia, Esq., on or about July 18th, 2003, he reviewed the facts and circumstances of the case after discussion with counsel in the Ministry of Justice and 1st defendant’s/respondent’s counsel and concluded that there are substantial grounds of an appeal against the judgment of the lower court on behalf of the appellant. The said grounds of appeal are hereby attached as ‘Exhibit B’.”

As disclosed in paragraph 8 of the affidavit in support reproduced above, the 1st defendant/respondent filed an appeal against the said judgment to this court. But that appeal was eventually dismissed for want of prosecution on 29th June, 2000. That is the basis on which learned counsel for the 1st respondent now premised his submission that the matter is res judicata. The law is settled that by virtue of section 54 of the Evidence Act (Cap. 112, Laws of the Federation of Nigeria, 1990), every judgment is conclusive proof as against parties and privies, of facts directly in issue in the case, actually decided by the court and appearing from the judgment itself to be the ground on which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved. That estoppel is what is generally referred to as res judicata: See Balogun v. Adejobi (1995) 2 NWLR (Pt.376) 131 at 149.

The effect of a plea of res judicata is that it robs the courts of its jurisdiction.
For a plea of res judicata to succeed, it must be established that (i) the identity of the parties or privies are the same; (ii) the identity of the res, namely the subject-matter, are the same; and (iii) the issue and the claim in the case are also the same: See Falaye v. Otapo (1995) 3 NWLR (Pt. 381) 1; Ezeanya v. Okeke (1995) 4 NWLR (Pt.388) 142; Nwaneri v. Oriuwa (1959) SCNLR 316; Alashe v. Ilu (1965) NMLR 66; Fadiora v. Gbadebo (1978) 3 SC 219; and Nkanu v. Onun (1977) 5 SC 13.

The relevant facts of the present case are that the judgment of the lower court was entered jointly and severally against the two defendants in the case. The applicant was the 2nd defendant while the 1st defendant is now the present 1st defendant/respondent. The said 1st defendant/respondent exercised his right to appeal against the said judgment. It is that appeal that was dismissed for want of prosecution. Although the applicant was joined as 2nd respondent in that appeal, that could not be taken to mean that he had exercised his right of appeal against that judgment. It is therefore erroneous to hold that his right of appeal against the said judgment has been extinguished or that the result of appeal, which was dismissed for want of prosecution, could sustain a plea of res judicata against the applicant. I therefore hold that the plea of res judicata is inapplicable to this case.
The next question to be resolved is whether the applicant has made out a good case to warrant the prayers sought being granted. The conditions which a party asking for an extension of time within which to appeal, must fulfil are laid down in Order 3 rule 4(2) of the Court of Appeal Rules, 2000.

The said rule reads as follows:
“4(2) Every application for an enlargement of time in 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.”

It is clear from the above provisions of Order 3 rule 4(2) that two conditions must be met by a party asking for extension of time to appeal. The two conditions are (a) good and substantial reasons for the failure to appeal within time; and (b) grounds of appeal which prima facie show good cause why the appeal should be heard. The position of the law is that these two conditions must be met by an applicant for extension of time within which to appeal. See University of Lagos v. Olaniyan (No. 1) (1985) 1 NWLR (Pt.1) 156; Lamai v. Orbih (1980) 5-7 SC 28; Ojora v. Bakare (1976) 1 SC 47; Bowaje v. Adediwura (1976) 6 SC 143; Ukwu v. Bunge (1997) 8 NWLR (Pt.518) 527; Oloko v. Ube (2001) 13 NWLR (Pt. 729) 161; and Kotoye v. Saraki (1995) 5 NWLR (Pt. 395) 256.

One of the duties of every court is to protect the exercise of the right of appeal of a litigant. See Vaswani Trading Co. v. Savalakh & Co. (1972) All NLR 922; and Central Bank of Nigeria v. Ahmed (2001) 11 NWLR (Pt.724) 369. Although it is a requirement of the law that the two conditions to be met in an application for extension of time of appeal, as set out above, must be satisfied conjunctively, the position however, is that if the grounds of appeal are substantial, the court may be inclined to look with more favour on the reason for the delay and that as much as possible an application with an arguable appeal ought not to be shut from exercising his right of appeal. See In Re: Adewunmi (1988) 3 NWLR (Pt. 83) 483; Co-operative & Commerce Bank (Nig.) Lid. v. Ogwuru (1993) 3 NWLR (Pt. 284) 630; and Oloko v. Ube (2001) 13 NWLR (Pt. 729) 161.

Similarly, the duty of the court in the consideration of the grounds of appeal proposed by an applicant to support an application for leave to appeal is limited to whether the grounds of appeal are substantial and reveal arguable grounds. It is not the business of the court at that stage to decide upon the merits of such grounds as are filed in support of the application. See Ibodo v. Enarofia (1980) 5-7 SC 42; Holman Bros. (Nig.) Ltd. v. Kilgo (Nig.) (1980) 8-11 SC 43; Obikoya v. Wema Bank Ltd. (1989) 1 NWLR (Pt 96) 157; and Central Bank of Nigeria v. Ahmed, supra. Also once an appellant satisfies the court that there are good and substantial reasons justifying the delay in appealing within time, the length of the delay is immaterial in the consideration of the application for extension of time within which to appeal. See Alagbe v. Abimbola (1978) 2 SC 39; Kalu v. Igwe (1991) 3 NWLR (Pt. 178) 168; and Oloko v. Ube, supra.

The applicant in the instant case exhibited the notice of appeal he intends to file if his application is granted. The notice of appeal contains six grounds of appeal. The six grounds of appeal without their particulars are as follows:
“(1) The Learned Trial Judge erred in law in relying on the valuation report prepared by PW2 (exhibit J) in determining that the appellant and the 1st defendant/respondent were jointly and severally liable to the plaintiff/respondent for the cost of the moulds ostensibly valued herein at N31,150,000.00 (thirty-one million, one hundred and fifty thousand naira) only.
(2) The Learned Trial Judge erred in law when he entered judgment in favour of the plaintiff/respondent against the appellant and the defendant/respondent jointly and severally in the sum of N42,100.000.00 (forty-two million, one hundred thousand naira) only.
(3) The Learned Trial Judge erred in law and on the facts when he held that PW2 should be regarded as an expert.
(4) The Learned Trial Judge erred in law in awarding the additional sum of N5,843,813.00 (five million, eight hundred and forty-three thousand, eight hundred and thirteen Naira) only as general damages in respect of ‘loss of business earnings and costs of retaining professionals.
(5) The Learned Trial Judge erred in law when he held with regard to the plaintiff’s/respondent’s claim for interest as follows:
‘Defendant although denied it in the statement of defences, refused or neglected to give any evidence in proof of it’.
(6) The judgment of the lower court is against the weight of the evidence.”

There is no doubt that most of the above grounds of appeal raise substantial issues and reveal arguable grounds. Similarly, the reason given for the delay as disclosed patticularly in paragraphs 6 and 10 of the affidavit in support, could be attributed to error of judgment on the part of the previous counsel assigned to handle the matter, a situation for which the court is always reluctant at penalizing the litigant.

In the result, I hold that the applicant has made out a good case to warrant granting the prayers sought in the motion. The motion is therefore granted as prayed.
(1) Time is accordingly extended till today within which the applicant is to apply for leave to appeal to this court against the judgment delivered at the Port Harcourt High Court on 16th April, 1996 in suit No. PHC/1097/94.
(2) Leave is also granted to the applicant to appeal against the said judgment; and
(3) Time is hereby extended by 14 days from today within which the applicant is to file his notice and grounds of appeal against the said judgment.

I make no order on costs.

Other Citations: (2003)LCN/1491(CA)