ATTORNEY-GENERAL, RIVERS STATE v. IKENTA BEST NIGERIA LIMITED & ANOR(2003)

ATTORNEY-GENERAL, RIVERS STATE v. IKENTA BEST NIGERIA LIMITED & ANOR

(2003)LCN/1491(CA)

In The Court of Appeal of Nigeria

On Thursday, the 13th day of November, 2003

CA/PH/220M/2003

RATIO

JURISDICTION: THE EFFECT OF PLEA OF RES JUDICATA

“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.” PER SUNDAY AKINOLA AKINTAN, J .C.A.

JUSTICES:

SUNDAY AKINOLA AKINTAN Justice of The Court of Appeal of Nigeria

ABOYI JOHN IKONGBEH Justice of The Court of Appeal of Nigeria

DAVID ADEDOYIN ADENIJI Justice of The Court of Appeal of Nigeria

Between

ATTORNEY-GENERAL, RIVERS STATE – Appellant(s)

AND

1.IKENTA BEST NIG. LTD.
2. WEST AFRICAN GLASS INDUSTRIES PLC. – Respondent(s)

SUNDAY AKINOLA AKINTAN, J .C.A. (Delivering the Leading Ruling):

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.

ADENIJI, J.C.A.: I have read in advance the ruling of my learned brother Akintan, J.C.A. just delivered and I wholly agree with his reasoning and conclusion. I only need to add that in all cases where there is a change of counsel (as in this case) and good reasons are given; applications for leave to appeal need not be turned down. It is more so in a situation where delay in doing so timeously can be attributed to default on the part of counsel for which the litigant is not supposed to suffer. I too allow the application and do abide by the consequential orders made.

IKONGBEH, J.C.A.(Dissenting): I have read in advance the ruling just delivered by my learned brother, Akintan, J.C.A. I regret to say that I find myself unable to agree with his decision to grant this application because the applicant has not fulfilled the second of the two mandatory conditions that he has to fulfil before getting an extension of time within which to appeal. He has not shown good reasons for failing to appeal within time or for delaying for an inordinate length of time before bringing this application. My learned brother adequately and accurately exposed the law governing the subject. It is with this application of the law to the facts of this case that I find myself in the unfortunate position of having to disagree.

First, let me make it clear that I agree with his decision on the preliminary objection to this application. I agree that the doctrine of res judicata has no relevance to the matter before us.

The only question that arises is whether the applicant has met the conditions precedent set by Order 3, rule 4(2) of the Court of Appeal Rules, 2002. As my learned brother rightly observed, the law is that the two conditions, namely that (1) there are good and substantial reasons for failure to appeal within the time and (2) the proposed grounds of appeal prima facie show good cause why the appeal should be heard, must be met simultaneously. In other words, it is not enough to show that there are good grounds of appeal without at the time showing any or any good and substantial reasons for not appealing within time or for waiting for an unacceptably long time before bringing an application for extension of time and vice versa.

Now, as can be seen from prayers sought, which are set out in the lead judgment, the judgment that the applicant now seeks to challenge on appeal was delivered on 16/04/96. Section 25(2)(a) of the Court of Appeal Act, 1976, limits the period within which an aggrieved party may appeal or, as the case may be, seek leave to appeal to this Court against a judgment, as follows:
“(a) 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.”

The applicant, having three months within which to appeal, had up to 15/07/96 to appeal against the judgment of 16/04/96. The present application was, however, not filed until 19/05/03, a full seven years, four months and three days! Since the delivery of the judgment or seven years, one month and three days since his time within which to appeal expired. There can be no doubt, therefore, that there has been an inordinate delay, which the applicant must satisfactorily explain before he can hope to get the extension of time he seeks, unless, of course, there are circumstances that the law recognizes as excusing him from such explanation. In Gjora v. Bakare (1976) NSCC (Vol. 10) 15, the delay in bringing the application for extension of time was only over three years. Madarikan, J.S.C., who delivered the judgment of the Supreme Court, described the application as a ‘tardy application’. The period of delay in Lauwars import-Export v. Jazebson Industries Co. Ltd. (1988) 3 NWLR (Pt. 83) 429, in bringing the application was even shorter. It was only two years, six months and three days. Yet in the view of Agbaje, J.S.C., who delivered the lead judgment, however, ‘the defendant was not in a little but a very great deal out of time’. See p.447. In both cases, the application for extension of time was refused because the tardiness had not been satisfactorily explained.

I have read through the proposed grounds of appeal contained in the proposed notice of appeal exhibited with the supporting affidavit as exh. B. Grounds 1 and 3 complain about the lower court erroneously relying on a document, which was based on hearsay, the maker, PW2, not being an expert. Ground 2 seeks to raise an issue based on the principle of law established in Salomon v. Salomon (1897) A.C. 22, namely, whether or not the applicant could be found liable for breach of contract by the 1st defendant, a limited liability company merely because he is a shareholder. Ground 4 complains of erroneous award of general damages. Ground 5 complains of erroneous award of interests. Ground 6 is the omnibus ground.

Looking at the grounds, I cannot say offhand that they are not good grounds for the purposes of Order 3 rule 4(2). None of them is ex facie frivolous or incompetent. Had they been filed within time, this court would surely have entertained them. I must, therefore, agree with my learned brother that the applicant has cleared this aspect of the hurdle before him.

What about the other aspect? Has the applicant shown any or any good reasons for failure to appeal within time or for delaying for such an inordinately long time before bringing this application?
The only reason given for failure to appeal within time is contained in paragraph 10 of the supporting affidavit, which reads:
“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 1st 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.” (Italics mine)

Now, is this a tenable reason for failing to appeal against the decision of a court of competent jurisdiction, which positively and expressly found a defendant liable to a plaintiff and which authoritatively orders him and his co-defendant ‘jointly and severally’ to pay to the plaintiff specified sums of money?

This is where it has fallen on my unfortunate lot to have to quarrel with my learned brother’s answer. In the first place, neither paragraph 10 nor paragraph 6 supports the finding that the reason for the failure to appeal ‘could be attributed to error of judgment on the part of previous counsel assigned to handle the matter’.

Paragraph 6 reads;
“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 defence 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’.”
Neither here nor in paragraph 10 did the deponent talk about the case being assigned to any counsel. The reason given for the failure to appeal is, as unequivocally stated in paragraph 10, that ‘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 1st defendant/respondent had indicated that the matter would be settled’. With all due respect, this court cannot make a finding of fact that is different from what the evidence says. Such finding is liable to be labelled as speculation.

No court is allowed to speculate. We cannot consider a reason different from that given by the applicant. Even in his oral arguments before us, the current Attorney-General never said that the failure to appeal within time was the error of judgment by counsel to whom the case has been assigned. He put the blame squarely on his predecessors-in-office, each of whom in his time personified the 2nd defendant, the applicant herein.

So, in the present case, the only question we are called upon to answer, and can find an answer to is whether the reason given in paragraph 10 is tenable for the purposes of Order 3, rule 4(2). I have no hesitation in answering this poser in the negative. I should have thought that when a person is required to give five reasons for failing to do something within a specified period of time, the reason expected from him must relate to events the happening of which were completely beyond his control. If the happening of such events has been brought about by the deliberate and considered decision of that person or his predecessor-in-office, I do not think that he or his successor-in-office should be allowed to use as excuse for failure to do what was required of him within time the offending decision by him or his predecessor-in-office.

Our judicial system will lose its efficacy if we allow people to consciously and deliberately flout a court order and use that same act later to seek an indulgence in court. As Agbaje, J.S.C. pointed out the in Lauwar’s case, (supra), at p.450, once a court of competent jurisdiction has spoken in the form of a positive order enjoining a person to do something, that person must either do that thing without question and within the stipulated period or, if he thinks that the order has been wrongly made, appeal against it. If he chooses not to appeal but at the same time consciously and deliberately refuses to obey it, he is clearly in contempt. How can he later rely on his contemptuous conduct as reason for seeking the indulgence of the court in the matter?

From the analysis I have made, it must be apparent that the reason contained in paragraph 10 does not meet the requirements of Order 3, rule 4(2). What reason has been offered for the inordinate delay in bringing this application? They are contained in paragraph 7 and 8 of the supporting affidavit, which read:
“7. That between April 1996 and 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’s 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.”

As can be seen, the two reasons are, firstly, that the 1st defendant/judgment debtor and the plaintiff/judgment creditor embarked on prolonged negotiations and, secondly, that the 1st defendant/judgment debtor was pursuing an appeal.

With all due respect, I fail to see what any of this has to do with the applicant. The liability was joint and several. He has not shown that any of his predecessors-in-office was involved in the negotiations or in the appeal proceedings initiated by the 1st defendant. What is more, the deponent disclosed in paragraph 7 of his affidavit, as has been seen, that the negotiations did not go beyond 2000 when they broke down. He also disclosed in paragraph 11 that ‘the 1st defendant/respondent’s appeal was however dismissed on June 29th, 2000 for want of prosecution’. One may then ask, what stopped the incumbent Attorney-General at the time, after the breakdown of negotiations and the dismissal of the 1st defendant’s appeal, from taking steps to initiate appeal proceedings of his own immediately?

Why wait for another three years plus for this application to be brought? Not a word of explanation has been offered.

Two established principles of law work against the applicant in this aspect of the application. The first is that ‘in deciding to grant or refuse an application for appealing out of time, the length of time that has elapsed is always a material factor’. See Ojom v. Bakare (1976) 1 SC 47 at 52, per Madarikan, J.S.C. The other is that the fact that parties engaged in unsuccessful negotiations is no good reason for failing to appeal within time. See Moukarim v. Agbaje (1982) 11 SC 122 at 126, where Obaseki, J.S.C. observed and held that the applicants, in a situation similar to the present applicant’s, –
“…failed to give good and substantial reasons for failure to appeal within time. The failure of moves for amicable settlement is not such reason.”
See also at pp. 127 – 128, per Eso, J.S.C.

In addition to all this, I think the conduct of the applicant in this matter from beginning to the time this application was filed also works against him. From the facts disclosed by the affidavits and counter-affidavits I have no doubt in my mind, and I agree with the plaintiff/respondent, that this application has not been brought in good faith.

Let me hasten to say that what I have said and am about to say is not a reflection on the person or the tenure of the current Attorney-General. Indeed, I must, without any reservation whatsoever, commend him for the forthrightness and the belief in the principles of justice he has displayed in this matter, a thing I cannot say about this predecessors-in-office. To a large extent he has done what every chief law officer, nay, every lawyer, should do, namely, faithfully place all the facts before the court, even if they might hurt his case. The affidavit evidence before us shows that upon being made aware even if they might hurt his case. The affidavit evidence before us shows that upon being made aware of the difficulty the plaintiff/judgment creditor has been having in executing his over seven-year-old judgment he immediately formed the intention, and did plan, to see it that justice was done in the matter. This is evidenced by exh. D.

This was a letter he wrote to Mr. Ayuli Jemide, counsel for the 1st defendant/judgment debtor. It reads:
“I gather from the records that you were solicitors to the first defendant West African Glass Industries Plc. in the proceedings which culminated in a judgment against your client and the Attorney-General of River States (jointly and severally) in the sum of N42,100,000.00 (Forty-two million, one hundred thousand Naira). As I familiarize myself with the matter, I would welcome an opportunity to meet with you at your earliest convenience to discuss antecedents of the matter and non-payment of the judgment debt. It is certainly unwholesome for judgment debtors to be seen to be using legal processes to justifiably block the payment of a legitimate judgment debt.
Perhaps you could enlighten me with regard to the antecedents of the matter which may have informed the course of action adopted by your clients in the above suit.
Your urgent response would be greatly appreciated.”

I could not agree more with the Honourable Attorney-General that the treatment that had been meted out to the plaintiff/judgment creditor was unwholesome. Where I have seen some fault on his part is the course of action, he adopted after Mr. Jemide had briefed him in response to exh. D. In his letter, exh. E, Mr. Jemide advised the Attorney-General to appeal, suggesting as a ground of appeal, the fact that the plaintiff/judgment debtor had obtained the judgment by fraud. I blame the Attorney-General for accepting this piece of advice instead of pursuing his earlier plan of putting an end to the unwholesome situation created by the Rivers State Government through its succession of Attorneys-General and seeing to it that the judgment debt he himself has described as ‘a legitimate judgment debt’ is paid. I blame him for a number of reasons. In the first place, the facts on record, a number of them supplied by him, show that the 1st defendant/judgment debtor, through the active encouragement by the Rivers State Government, through the Attorney-General’s office, with no intention of paying the judgment debt used (or, more appropriately, abused) the processes of the High Court and this court to frustrate the plaintiff/judgment creditor. See paragraphs 7 and 8 of the affidavit, already set out and discussed, and paragraph 9, where the deponent revealed –
“9. That several successful petitions (dated 25th November, 2001, 9th August, 2001, 8th May, 2001, etc) have been made to the Rivers State Government and the office of the Attorney-General for payment of the judgment debt”.

The Attorney-General should have been more wary of Mr. Jemide’s advice, seeing that it is in the interests of his client that the matter be kept pending in court and infinitum. He should have asked himself why, when Mr. Jemide discovered that the judgment had been obtained by fraud, he did not himself move the High Court to have it set aside. Did he not see that it was more beneficial and less worrisome for the 1st defendant/judgment debtor to remain in the background and let someone else fight his fight for him? Most curiously, if he believed Mr. Jemide’s story that the judgment had been obtained by fraud, why did he not include his proposed notice to appeal a ground based on that fact as he promised in his letter to the Chief Justice of Nigeria (exh. G to the further and better affidavit) in response to the demand by the latter for an explanation on the plaintiff/judgment creditor’s complaint? If, as Exh. D shows, he is of the view that it is unwholesome for judgment debtors to be seen to be using legal processes to block the payment of legitimate judgment debts, why has he chosen to initiate proceedings which would constitute further blockade in the judgment creditor’s path instead of advising the 1st defendant/judgment debtor, which has exhausted all legal avenues open to it of avoiding payment, and the Rivers State Government to pay up, especially as no good reason has been given for failing to appeal when the latter had the chance I think, in the circumstances, he should have persuaded the Governor to heed to the advise by the State Chief Judge in his letter to the former on 31/07/03 ‘to decide and direct who should pay the judgment debt, and within what time’.

In the circumstances, I think that was the only honourable thing to do. I have pondered all the questions I have posed and the facts before the court and have come to he conclusion that it will not be in the interest of Justice that the execution of this overdue judgment debt be further delayed by allowing any of the judgment debtors to engage in what the plaintiff/judgment creditor has in its counter-affidavit aptly described as ‘legal gymnastics in court’.

It is for all the reasons that I have given, especially the fact that no good reason has been given for failure to appeal within time and for delaying in bringing this application, that I have decided to refuse the application. Accordingly I dismiss the motion for it. I make no order as to costs.

Application granted.

Appearances