Industrial & Commercial Service. Nigeria. Ltd. Anor. V. Balton B. V. Ors. (2002)
LawGlobal-Hub Lead Judgment Report
OGUNTADE, J.C.A.
In suit No. LD/1044/91 before the Lagos High Court, the 1st respondent as plaintiff claimed against three defendants, the 1st and 2nd of whom are now the appellants and the 3rd now the 2nd respondent claiming in these words:
“The plaintiff’s claim is for:
(i) The 1st defendant as principal and against the 2nd and 3rd defendants as sureties for the sum of US$186,084 or the Naira equivalent at the autonomous rate of exchange at the time of payment being the price of three hundred and six (306) units of model No. AC1225H and two hundred and twenty-five (225) units of model AC185G room air conditioners sold and delivered by the plaintiff to the 1st defendant on the guarantee by the 2nd and 3rd defendants for payment thereof.
(ii) Interest on the said sum of US$186.084 or the Naira equivalent at the autonomous rate of exchange at the time of payment at the rate of 19% per annum from the 31st day of January, 1991 until payment.”
The parties filed and exchanged pleadings. The case was heard by Rhodes Vivour, J. Judgment was delivered on 22nd October, 1996. Judgment was given in favour of the plaintiff for the sum of US$56,415 or the Naira equivalent at the autonomous rate of exchange at the time of payment. The judgment sum was to attract interest at the rate of 19% per annum from the 16th day of May, 1991 until payment. Dissatisfied with the said judgment, the 1st and 2nd defendants before the lower court have brought this appeal. The 3rd defendant before the lower court did not appeal. In the appellants’ brief filed, the issues for determination in the appeal were formulated as follows:
“1. Whether the plaintiff was entitled to judgment against the 2nd defendant when the plaintiff did not plead or give evidence of a written guarantee signed by the 2nd defendant.
- Whether the plaintiff was entitled to an award of interest in the absence of an express or implied contract by the 1st defendant to pay interest.
- Whether there was any evidence which would found the liability of the 2nd defendant as guarantor.”
The plaintiff/respondent’s issues are these:
“i. Whether on the law and the evidence, the lower court was
right in giving judgment against the 2nd defendant.
ii. Whether the leaned trial Judge was right in awarding interest against the defendants having regard to the averments in the statement of claim and the evidence proffered.”
This appeal came before us for hearing on 4/2/02. It was part argued and adjourned to 5/2/02. On 5/2/02, this court suo motu raised an issue to counsel in these words:
“Court: In the course of hearing this appeal yesterday 4/2/02, this court suo motu called on appellant’s counsel who was concluding his address to address it on the impact of section 308 of the 1999 Constitution on this appeal and appeal No. CA/L/12M/97 arising from the fact that the 2nd appellant in each of the two appeals is now the Governor of Cross-River State. Are counsel ready for the address?
Both counsel having indicated a readiness to address us, we proceeded to take arguments. Mr. Duro Oluwa, of counsel for the appellants opened his address by referring to Tinubu v. I.M.B. Securities Plc. & Ors. (2001) 16NWLR (Pt. 740) 670, (2001) FWLR (Pt. 77) 1003. He said that the decision in the Tinubu case arose from an interlocutory appeal whereas in the instant case the appeal arose from a final judgment of the lower court. He stated that the proviso under section 308 of the 1999 Constitution did not protect
persons other than the Governor. He submitted that section 308 did not affect a Governor’s right of appeal.
Mr. Bambo Adesanya, of counsel for the respondent observed that there were two appellants in the appeals. He said that the appeal by the 1st appellant should proceed whilst the appeal by the 2nd appellant should on the authority of Tinubu v. I.M.B. Securities (2001) 16 NWLR (Pt. 740) 670 at 713 be struck out. He said that section 308(1) of the 1999 Constitution did not make a distinction between final or interlocutory proceedings.
Mr. Oluwa in reply submitted that section 308 did not cover the Governor. He urged us to follow the reasoning of Ayoola, JSC, Tinubu v. I.M.B. Securities (supra). Continuing his argument on the merits of the appeal, counsel submitted that it was irrelevant that the defendants did not lead evidence at the trial. He said that the 2nd appellant was not shown to be a guarantor. Urging us finally to allow the appeal, Mr. Oluwa submitted that the respondent had not by evidence established that interest was recoverable on the amount involved in the transaction. Mr. Bambo Adesanya for his part adopted his respondent’s brief which was filed on 20/2/2001.
In this judgment, I ought to consider first the applicability of section 308 of the 1999 Constitution of Nigeria to the facts in this appeal because that provision determines whether or not this appeal is maintainable. I should say preliminarily, that it was undisputed that the 2nd appellant in this case Mr. Donald Duke is the Executive Governor of Cross-River State of Nigeria; and that he assumed that office on 29/5/1999. The suit from which this appeal arose was filed sometime in 1991. The statement of claim was filed on 22/5/91 although the amended writ of summons was filed on 2/7/96. The judgment of the lower court was given on 22/10/96. The notice of appeal was filed on 25/10/96. These facts are not in dispute. From the undisputed facts it is apparent that the 2nd appellant was not a Governor under the 1999 Constitution at the time the judgment of the lower court was given and when the appeal was initiated. Can the 2nd appellant continue with this appeal now that he is an Executive Governor under the 1999 Constitution of Nigeria?
Section 308 of the Constitution of the Federal Republic of Nigeria, 1999 provides:
“308(1)Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section-
(a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office.
(b) a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and
(c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued.”
Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period of office.
- The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.
- This section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor; and the reference in this section “period of office” is a reference to the period during which the person holding such office is required to perform the functions of the office.”
In appeal No. CA/L/229/94 decided on 29/1/2001 and which later went on a further appeal to the Supreme Court and was reported as Tinubu v. I.M.B. Securities Plc. (2001) 16 NWLR (pt. 740) 670, this”, court took the view that a person to whom section 308 applies could not, even as an appellant pursue an appeal before this court during the period of his office. We took the view that if a plaintiff to whom section 308 did not directly apply could not initiate or continue proceedings against a person to whom section 308 applies, the latter person could not pursue an appeal against any decision of the court of trial, the reasoning being that, to allow that person to pursue an appeal was akin to a continuation of the proceedings before the lower court.
The Supreme Court in upholding the reasoning of this court said per Iguh, IS.C. at page 695:
“In my view, the immunity granted to the incumbent of the relevant office under section 308(1)(a) of the Constitution prescribes an absolute prohibition on the courts from entertaining any proceedings, civil or criminal; in respect of any claim or relief against a person to whom that section of the Constitution applies during the period he holds office. No question of waiver of the relevant immunity by the incumbent of the offices concerned or, indeed, by the courts may therefore arise. In my view, the Court of Appeal was absolutely right to have declined to entertain the appellant’s appeal pending before it as to do otherwise would amount to continuing the plaintiff/respondent’s suit against the defendant/appellant, a suit which under section 308( 1)(a) of the 1999 Constitution shall not be continued against the appellant while he remained the Governor of Lagos State.”
The 2nd appellant in this case had been a defendant in the suit before the Lagos High Court; and like the Executive Governor of Lagos State in Tinubu v. I.M.B. Securities Plc. (supra) had brought an appeal against the decision of the High Court. On principle therefore there is no reason why the decision in the Tinubu case should not apply to this case. But learned counsel for the appellants before us Mr. Duro Oluwa has argued that there is a distinguishing feature between the Tinubu case and this one. According to counsel, the decision in the Tinubu case against which an appeal was brought was interlocutory whereas in the instant appeal the decision is a final one.
I am with respect to the learned counsel for the appellants unable to agree that because the appeal in the Tinubu’s case was interlocutory and the one here is final, there is a justification for departing from the principle in the Tinubu case. The simple answer is as submitted by Mr. Bambo Adesanya that section 308(1)(a) does not make a distinction between final and interlocutory proceedings. Mr. Bambo Adesanya, learned counsel for the respondent’s asked us to allow the 1st appellant to continue with his appeal while we struck out the 2nd appellant’s appeal. I am unable also to accept that submission which amounts in my view to a re-engineering to destroy the effect of the judgment of the lower court. The plaintiff/respondent brought its suit jointly against all the three defendants. When the lower court gave its judgment, it was given jointly against the defendants. The appeal before us was jointly brought by 1st and 2nd defendants before the lower court. It is therefore difficult for me to see how I can at this stage disentangle 1st appellant’s interest on the appeal from 2nd appellant’s.
The conclusion I arrived at is that by reason of section 308(1)(a) of the 1999 Constitution the appeal by the two appellants’ is not maintainable.
It must wait until the 2nd appellant vacates office as the Executive Governor of Cross-River State. I must in compliance with directive in Tinubu v. I.M.B. Securities Plc. (supra) strike out this appeal.
The appeal shall be and is accordingly struck out.
The facts in appeal No. CA/L/126M/97 are identical with those in this case save that the plaintiff/respondent is Solcoor Incorporate. The same question of law concerning the applicability of section 308(1)(a) arises in CA/L/126M/97 as in CA/L/127M/97. The same result as in CA/L/127M/97 must attend to the appeal in CA/L/126M/97 since the same arguments were canvassed in relation to the two appeals. Accordingly, appeal No. CA/L/126M/97 is similarly struck out. I make no order as to costs in the two appeals.
Other Citations: 2002)LCN/1137(CA)
