GOVERNOR OF IMO STATE & ORS v OKOROJI

IN THE COURT OF APPEAL
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI

ON THURSDAY, 4TH MAY, 2017

Appeal No: CA/OW/96M/2016
CITATION:

Before Their Lordships:

RAPHAEL CHIKWE AGBO, JCA

AYOBODE OLUJIMI LOKULO-SODIPE, JCA

TUNDE OYEBANJI AWOTOYE, JCA

BETWEEN

GOVERNOR OF IMO STATE
ATTORNEY-GENERAL OF IMO STATE
COMMISSIONER, MINISTRY OF PUBLIC UTILITIES AND RURAL DEVELOPMENT

(APPLICANTS)

AND

ANDREW OKOROJI

(RESPONDENT)

PRONOUNCEMENTS

A. APPEAL
1. Filing of Appeal – Statutory provisions on the period for filing an appeal

Statutory period for filing an appeal against an interlocutory/final decisions of court

“The provision of S.24 of the Court of Appeal Act for leave to appeal is pertinent on this.
S.24 of the said Act reads:-

“24-(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period prescribed by the provisions of Subsection (2) of this Section that is applicable in the case.

(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are:-
(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;
(b) in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.
(3) Where an application for leave to appeal is made in the first instance to the Court below, a person making such application shall in addition to the period prescribed by Subsection (2) of this Section, be allowed a further period of fifteen days, from the date of the determination of the application by the Court below, to make another application to the Court of Appeal.

(4) The Court of Appeal may extend the periods prescribed in Subsection (2) and (3) of this Section.”Per AWOTOYE, JCA read in context

2. Appeal as of Right – When an appeal will lie as of right from the High Court or Federal High Court to the Court of Appeal

Instances where an appeal shall lie as of right from the High Court or Federal High Court to the Court of Appeal

“By virtue of Section 241 (1a) of the Constitution of the Federal Republic of Nigeria (as amended) an appeal lies from a final decision of a High Court sitting at first instance as of right.”Per AWOTOYE, JCA read in context

3. Leave to Appeal –

Whether leave of Court is required to appeal against a consent judgment even though it is a final decision of the High Court

“However by S.241(2C) of the Constitution a consent judgment even though it is a final decision of the High Court cannot be appealed against without leave of Court.
The section reads thus:

“Nothing in this Section shall confer any right of appeal (c) without the leave of the Federal High Court or a High Court or of the Court of Appeal from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only”

Section 241 (2C) of the 1999 Constitution is impari materia with S.220(2C) of the 1979 Constitution which the full Court of the Supreme Court interpreted in ABDULKARIM V INCAR (Nig) Ltd (1992) NWLR (Pt. 251) 1 Uwais J.S.C. (as he then was) in the leading judgment held inter alia thus:

“The significance of the provision in Section 220 Subsection (2) (c) of the 1979 Constitution is to limit litigation where some medium of agreement has been reached between the parties.
The agreement can take any form. It could be in the form of consent judgment in its technical sense or submission to judgment or admission of claim or conceding to a claim – in the application to strike out or dismiss the claim in the present case to which the plaintiﬀ’s counsel conceded. The circumstances, under which a decision could be reached with the consent of the parties will indeed, always depend on the peculiar facts of each case. I have no doubt therefore that the decision in R V auwers Import-Export case which limited the application of the provisions of Section 220 Subsection 2 (c) to consent judgment is for the above reasons wrong and should not be followed in the present case”

This judgment of the lower Court, in my respectful view is a consent decision in view of the provision of S. 241(2C) of the 1999 Constitution (as amended) and ABDULKARIM’S CASE (supra). This is because on page 2 of the judgment i.e Exhibit A attached to the counter-aﬃdavit of the Respondent Suit No HOW/95/ 012 Andrew Okoroji v Governor of Imo State & Ors, the learned trial Judge stated what transpired at the lower Court thus:

“Counsel to the defendants F. N. Otuokere (Mrs) informed the Court that she asked for time to confirm the authenticity of the documents attached to the writ of summons and that it was confirmed that the claimant actually executed the contract and as such the Ministry of Justice had no materials upon which to file a notice of intention to defend the suit, counsel further informed the Court that all visits made and memos written to the Ministry of Public Utilities (3rd Defendant) over the claims of the claimant yielded no meaningful results”

As a result, the Respondents did not file any notice of intention to defend at the lower Court.
In bringing this application the applicants ought to have sought for leave and the ground for seeking for leave must have been shown to be in compliance with the provision of Section 241 (2c) of the 1999 Constitution as amended. This has not been done in this case.” Per AWOTOYE, JCA read in context

4. Extension of Time to Appeal – Principles governing the grant of an extension of time to appeal

Whether the grant of an application for extension of time to appeal is at the discretion of Court; factors for grant of an application for enlargement of time within which to appeal

“Furthermore, the law is trite on when an application for an extension of time to appeal can be granted Order 6 Rule 6 of the Court of Appeal Rules 2016. It states thus:
“Where an application for leave to appeal from a decision of the Court below has been brought within the time prescribed by the Court of Appeal Act but has not been heard within that period, the Court, if satisfied that there has not been an unreasonable delay in bringing the application, may extend time to appeal and in proper case grant leave to appeal.”

In NGERE & ANOR V OKURUKEI & ORS (2014) LPELR – SC 335/2012 Rhodes – Vivour J.S.C. explained the principles governing the grant of an application for extension of time to appeal thus:
“The grant of an application for extension of time to appeal is a matter within the discretion of the Judge. That discretion is properly exercised if the judge considers the rules governing the particular application before granting the application. In an application for extension of time within which to appeal the aﬃdavit in support of the application must be detailed on

(a) good and substantial reasons for failure to appeal within the prescribed period and
(b) grounds of appeal which prima facie show good cause why the appeal should be heard.
Good reasons for delay and arguable grounds of appeal not necessarily grounds of appeal that would succeed must co-exist before an application for extension of time to appeal can be granted. Where the judge exercises his discretion in the absence of (a) (b) above he would be acting as he likes and giving the applicant uninhibited right to extension of time thereby defeating the purpose of the rules and putting the conduct of litigation in disarray. A judge would readily accede to an application for extension of time to appeal if a good ground for the appeal is on jurisdiction, where this happens to be the case the application would be granted even if no good reasons for the delay are before the Court. On (a) above the applicant is expected to give a detailed explanation for the delay. He should show something that entitles him to the exercise of the Courts discretion e.g. pardonable in advertence mistake or negligence of counsel. See ADEYEMI v YRS. IKE OLUWA & SONS LTD (1993) 8 NWLR (PT 309) 27 FHA v KALEJAIYE (2010) 12 S.C. (PT. 111) P.1, IBODO v ENAROFIA (1980) 5-7 S.C. 42; KOTOYE v SARAKI (1995) 5 NWLR (PT.395) 256, AKINPELU v ADEGBORE & 3 ORS (2008) 4-5 S.C. (PT. 111) P.75; NWORA v NWABUEZE (2011) 15 NWLR (PT. 1271) P.467.”Per AWOTOYE, JCA read in context

B. EVIDENCE
5. Unchallenged Evidence – Eﬀect of uncontroverted evidence

Eﬀect of an unchallenged/uncontroverted evidence

“The above averments in the Respondents counter-aﬃdavit have knocked the bottom out of the reasons adduced by the applicants for the delay in filing the appeal. The applicants have failed to file further aﬃdavit to controvert the averments in the counter-aﬃdavit of the Respondent. The conclusion therefore is that the averments in the Respondents counter-aﬃdavit are uncontroverted. See ATTORNEY GENERAL ONDO STATE v ATTORNEY GENERAL EKITI STATE (2001) (9-10) S.C. 118, ALAGBE v ABIMBOLA (1978) 2 S.C.39 EJIDIKE v AKUNYILI (1990) 5 NWLR (PT. 152) 564.” Per AWOTOYE, JCA read in context

C. LEGISLATION
6. Public Officers (Protection) Act/Law

Whether the Public Oﬃcers Protection Act applies to actions founded on contract

“Now the law is settled that the Public Oﬃcers (Protection Act) does not apply to contract. See OSUN STATE GOVERNMENT v DALAMI NIGERIA LIMITED (2007) ALL FWLR (PT. 365) 439 at 452; N.P.A. v C.G.F. C. & ANOR (1974) 1 LL NLR 463, WEMA SECURITIES & FINANCE PLC v NIGERIA AGRICULTURAL INSURANCE CORP. (2015) LPELR – S.C. 177/2006; FEDERAL GOVERNMENT OF NIGERIA & ORS v ZEMBRA ENERGY LTD (2002) 12 S.C. (PT. 11) 136.” Per AWOTOYE, JCA read in context

LEAD JUDGMENT DELIVERED BY AWOTOYE, JCA

This is the ruling on the application of the applicant praying for:-

“(i) An Order extending the time within which the appellants/applicants may seek leave to appeal against the judgment of the Imo State High Court sitting at Owerri and presided over by Hon. Justice P. O. Nnadi and delivered on the 12th of December, 2012.

(ii) An Order of Court enlarging the applicants leave to appeal against the said judgment.
(iii) An Order extending the time within which the Applicants may appeal against the said judgment.”

The grounds to bring the application are as follows:-

“1. The time allowed the applicants to appeal against the ruling has elapsed.

2. The grounds of appeal raise substantial issues of law likely to succeed on appeal.
3. Applicants require the leave of Court to appeal against the said judgment.
4. The delay in appealing against the judgment was not deliberate.
5. Applicants will prosecute the said appeal with due diligence.
6. The applicant has compiled the records of Appeal and is waiting for the leave of Court to file same.”

The application is supported by 5 paragraph affidavit. Most pertinent of all the paragraphs is paragraph 3 of the affidavit in support of motion on notice. Paragraph 3 of the said affidavit reads thus:

“That this suit was handled by one of our Counsel, F.N. Otuokere (Mrs.), at the trial Court and she informed me in her office on 18/10/2014 at about 12.30pm and I verily believe as follows:

(a) That on 12/12/12 the trial Court entered judgment on the undefended list in favour of the Respondent including the award of pre-judgment interest.

(b) That she prepared Notice and Grounds of Appeal for filing but before she could file same she was seconded to the Imo State Ministry of Women affairs, Owerri and she handed over the relevant case file to the then Litigation Officer, Rowland Ugwuegbu for appropriate action.

(c) That the said Litigation Officer erroneously put away the said case file where disposed off case files were kept, hence action could not be taken until now.

(d) That the ground of appeal raise substantial issues of law likely to succeed on appeal. A copy of our Notice of Appeal and the judgment sought to be appealed against are Annexed herewith as Exhibits “A” and “B” respectively.

(e) That the claim of the claimant having contained interest on the contract sum is not a matter suitable for undefended list procedure.

(f) That the applicants hereby undertake to diligently prosecute this appeal if granted leave.
(g) That the Appellants/applicants have already compiled the records of Appeal waiting to file same as soon as this application is granted. Annexed hereto as Exhibit “C” is extract (the first two pages and the last three pages) from the record of appeal.

(h) That the Appellants/Applicants will file the records of Appeal 2 days after leave of appeal.
(i) That it is in the interest of Justice to grant this application to enable the Appellants/Applicants exercise their constitutional right of appeal.”

To oppose the application the Respondent swore to 32 paragraph counter – affidavit. The summary of the Respondents averments are:

(1) That the judgment being sought to be appealed against was delivered on 12/12/2012.
(2) That the judgment arose from a contract of the supply of water treatment chemicals to the Imo State Government in 2011. That the Respondent duly executed the contract with a bank loan to the knowledge of the applicants.

(3) That the applicants had no defence to the action which led to the judgment and this was evidence in the 5 page Judgment Exhibit A.

(4) That the applicants from 2012 till date did not appeal against the judgment because there was no basis for the appeal.

(5) That this application is filed to truncate and abort the garnishee proceedings which he instituted.

(6) That the service of the ORDER NISI made by the Federal High Court on 25/9/2014 caused the applicants to file this application.

(7) That an order absolute was made on 19/5/2016. A copy of the Order absolute is attached to the application and marked Exhibit J.

(8) That this application has not been brought in good faith.

I have carefully considered the contents of the processes filed and the submissions of learned counsel on both sides.

The provision ofS.24 of the Court of Appeal Act for leave to appeal is pertinent on this.

S.24 of the said Act reads:-

(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are:-
(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;

(b) in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.
(3) Where an application for leave to appeal is made in the first instance to the Court below, a person making such application shall in addition to the period prescribed by Subsection (2) of this Section, be allowed a further period of fifteen days, from the date of the determination of the application by the Court below, to make another application to the Court of Appeal.

(4) The Court of Appeal may extend the periods prescribed in Subsection (2) and (3) of this Section.”

By virtue of Section 241 (1a) of the Constitution of the Federal Republic of Nigeria (as amended) an appeal lies from a final decision of a High Court sitting at first instance as of right.

However by S.241(2C) of the Constitution a consent judgment even though it is a final decision of the High Court cannot be appealed against without leave of Court. The section reads thus:
“Nothing in this Section shall confer any right of appeal (c) without the leave of the Federal High Court or a High Court or of the Court of Appeal from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only”

Section 241 (2C) of the 1999 Constitution is impari materia with S. (2C) of the 1979 Constitution which the full Court of the Supreme Court interpreted in ABDULKARIM V INCAR (Nig) Ltd (1992) NWLR (Pt. 251) 1 Uwais J.S.C. (as he then was) in the leading judgment held inter alia thus:
“The significance of the provision in Section 220 Subsection (2) (c) of the 1979 Constitution is to limit litigation where some medium of agreement has been reached between the parties.

The agreement can take any form. It could be in the form of consent judgment in its technical sense or submission to judgment or admission of claim or conceding to a claim – in the application to strike out or dismiss the claim in the present case to which the plaintiff’s counsel conceded. The circumstances, under which a decision could be reached with the consent of the parties will indeed, always depend on the peculiar facts of each case. I have no doubt therefore that the decision in R V Lauwers Import–Export case which limited the application of the provisions of Section 220 Subsection 2 (c) to consent judgment is for the above reasons wrong and should not be followed in the present case”

This judgment of the lower Court, in my respectful view is a consent decision in view of the provision of S. 241(2C) of the 1999 Constitution (as amended) and ABDULKARIM’S CASE (supra). This is because on page 2 of the judgment i.e Exhibit A attached to the counter-affidavit of the Respondent Suit No HOW/95/2012 Andrew Okoroji v Governor of Imo State & Ors, the learned trial Judge stated what transpired at the lower Court thus:

As a result, the Respondents did not file any notice of intention to defend at the lower Court.

In bringing this application the applicants ought to have sought for leave and the ground for seeking for leave must have been shown to be in compliance with the provision of Section 241 (2c) of the 1999 Constitution as amended. This has not been done in this case.

Furthermore, the law is trite on when an application for an extension of time to appeal can be granted Order 6 Rule 6 of the Court of Appeal Rules 2016. It states thus:

”Where an application for leave to appeal from a decision of the Court below has been brought within the time prescribed by the Court of Appeal Act but has not been heard within that period, the Court, if satisfied that there has not been an unreasonable delay in bringing the application, may extend time to appeal and in proper case grant leave to appeal.”

In NGERE & ANOR V OKURUKEI & ORS (2014) LPELR – SC 335/2012 Rhodes – Vivour J.S.C. explained the principles governing the grant of an application for extension of time to appeal thus:

“The grant of an application for extension of time to appeal is a matter within the discretion of the Judge. That discretion is properly exercised if the judge considers the rules governing the particular application before granting the application. In an application for extension of time within which to appeal the affidavit in support of the application must be detailed on

(a) good and substantial reasons for failure to appeal within the prescribed period and
(b) grounds of appeal which prima facie show good cause why the appeal should be heard.
Good reasons for delay and arguable grounds of appeal not necessarily grounds of appeal that would succeed must co-exist before an application for extension of time to appeal can be granted. Where the judge exercises his discretion in the absence of (a) (b) above he would be acting as he likes and giving the applicant uninhibited right to extension of time thereby defeating the purpose of the rules and putting the conduct of litigation in disarray. A judge would readily accede to an application for extension of time to appeal if a good ground for the appeal is on jurisdiction, where this happens to be the case the application would be granted even if no good reasons for the delay are before the Court. On (a) above the applicant is expected to give a detailed explanation for the delay. He should show something that entitles him to the exercise of the Courts discretion e.g. pardonable in advertence mistake or negligence of counsel. See ADEYEMI v YRS. IKEOLUWA & SONS TD (1993) 8 NWLR (PT 309) 27 FHA v KALEJAIYE (2010) 12 S.C. (PT. 111) P.1, IBODO v ENAROFIA (1980) 5-7 S.C. 42; KOTOYE v SARAKI (1995) 5 NWLR (PT.395) 256, AKINPELU v ADEGBORE & 3 ORS (2008) 4-5 S.C. (PT. 111) P.75; NWORA v NWABUEZE (2011) 15 NWLR (PT. 1271) P.467”

I have deeply considered the averments in the affidavit filed by the parties in this application.

The reasons for the delay in filing the appeal against the judgment of the lower Court are that

(i) F. N. Otuokere (Mrs) who handled the case at the lower Court was seconded to another Ministry when she was yet to file the Notice and Grounds of Appeal.

(a) That on 12/12/12 the trial Court entered judgment on the undefended list in favour of the Respondent including the award of pre-judgment interest.

(b) That she prepared Notice and Grounds of Appeal for filing but before she could file same she was seconded to the Imo State Ministry of Women Affairs, Owerri and she handed over the relevant case file to the then Litigation Officer, Rowland Ugwuegbu for appropriate action.

(ii) She then handed over the case file to the then Litigation Officer Rowland Ugwuegbu but who erroneously put away the case file where disposed case files were kept.

(c) That the said Litigation Officer erroneously put away the said case file where disposed off case files were kept, hence action could not be taken until now

The above violently conflicts with the averments in the counter-affidavit of the Respondent. Paragraph 15 of the counter-affidavit of the Respondent shows that on 22/10/2013 then 3 years ago the applicants actively participated in the garnishee proceeding instituted by the Respondent to recover the judgment debt subject matter of the judgment being sought to be appealed against. See Exhibit “D” attached to the counter-affidavit of the Respondent.

If the applicants contested the garnishee proceedings, instituted to recover judgment debt subject matter in respect of HOW/95/2012 and the non-availability of the case file according to them did not hinder them why was the filing of notice of Appeal to challenge the same judgment within time difficult or unattainable? The above averments in the Respondents counter-affidavit have knocked the bottom out of the reasons adduced by the applicants for the delay in filing the appeal. The applicants have failed to file further affidavit to controvert the averments in the counter-affidavit of the Respondent. The conclusion therefore is that the averments in the Respondents counter-affidavit are uncontroverted. See ATTORNEY GENERAL ONDO STATE v ATTORNEY GENERAL EKITI STATE (2001) (9-10) S.C. 118, ALAGBE v ABIMBOLA (1978) 2 S.C.39 EJIDIKE v AKUNYILI (1990) 5 NWLR (PT. 152) 564. The reasons given by the applicant do not show good faith. The reasons given by the applicants for the delay are therefore unacceptable and flimsy.

I have also looked at the proposed grounds of appeal to see whether or not an issue of jurisdiction has been bona fide raised. If jurisdiction is ex-facie validly raised as a ground of appeal then the Court would allow the applicant to appeal inspite of the flimsy reasons given for the delay in appealing. See NGERE’s case (supra). The proposed grounds of appeal are exhibited to the motion on notice and marked Exhibit A.

The only ground of appeal that raises issue of jurisdiction is Ground three.

It reads thus:

GROUND THREE: ERROR INLAW

“The learned trial judge assumed jurisdiction, heard and determined a suit whose claims are by Section 2 of the Public Officers (Protection Act) Cap 4, Vol. 14 Laws of the Federation of Nigeria, 2004, Statute barred.
PARTICULARS OF ERROR

a. The claimant alleged that he filed this suit on 17/2/2012 which is over months after the alleged act of the Defendants to pay the said sum. b. Section 2 (a) of the Public Officers (Protection Act) Cap 4, Vol. 14 Laws of the Federation of Nigeria 2004 provides that any action, prosecution or proceeding commenced against any person for any act done in pursuance or execution or intended execution of any Act. Law or any public duty or authority shall be brought within three months of the act, neglect or default complained of or in the case of a continuing damage or injury within 3 months next after the ceasing thereof.

c. The reliefs of the claimant at the time he brought them to Court for adjudication were already dead by operation of the limitation Act.”

Now the law is settled that the Public Officers (Protection Act) does not apply to contract. See OSUN STATE GOVERNMENT v DALAMI NIGERIA LIMITED (2007) ALL FWLR (PT. 365) 439 at 452; N.P.A. v C.G.F. C. & ANOR (1974) 1 ALL NLR 463, WEMA SECURITIES & FINANCE PLC v NIGERIA AGRICULTURAL INSURANCE CORP. (2015) LPELR – S.C. 177/2006; FEDERAL GOVERNMENT OF NIGERIA & ORS v ZEMBRA ENERGY LTD (2002) 12 S.C. (PT. 11) 136. It is quite clear that the case now on appeal arose from contract. This ground of appeal has not in the face of the above Supreme Court cases been validly raised. It can therefore not sustain this application.

Viewed from all angles, the application lacks merit and deserves to be dismissed for the following reasons:-

(a) No leave to appeal has been sought based on the consent nature of the judgment of the lower Court.
(b) No good reasons for the delay in filing the appeal has been adduced.
(c) The proposed grounds of appeal cannot sustain the application.
In the circumstance, this application is dismissed.

AGBO, JCA

I have read the lead ruling of my learned brother Awotoye JCA and I agree with him that the motion lacks merit and I also dismiss the application.

LOKULO-SODIPE, JCA

I have had the privilege of reading in draft the leading ruling prepared by my learned brother TUNDE O. AWOTOYE, JCA. I am in complete agreement with his lordship’s reasoning and conclusion in respect of the application before the Court.

Accordingly, I too find the application in question to lack merit and dismiss it without much ado.

GOVERNOR OF IMO STATE & ORS v OKOROJI

IN THE COURT OF APPEAL IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI

ON THURSDAY, 4TH MAY, 2017

IN THE COURT OF APPEAL
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI