IKWUANO LOCAL GOVERNMENT v. AUSTIFY AND ASSOCIATES LIMITED (2017)

IKWUANO LOCAL GOVERNMENT v. AUSTIFY AND ASSOCIATES LIMITED

(2017)LCN/9459(CA)

In The Court of Appeal of Nigeria

On Monday, the 6th day of February, 2017

CA/OW/1/2009(R)

RATIO

APPEAL: GROUNDS OF APPEAL
This is against the backdrop of the decision of the Supreme Court to the effect that an appeal can be lodged against some matters extrinsic to a judgment and not necessarily in respect of the ratio decidendi of the judgment itself. See in this regard the case of AKPAN V. BOB (2010) 43 NSCQR 409 wherein the Supreme Court per I. T. MUHAMMAD, JSC; delivering the leading judgment said thus: –
“Authorities are agreed on the legal definition of a ground of appeal. It is said to be the error of law or facts alleged by an appellant as the defect in the judgment appealed against upon which reliance has been placed to set it aside. In other words, it is the reason(s) why the decision is considered wrong by the aggrieved party. See: Olaleye v. the State (1991) 1 NWLR (Pt.170) 708 at 718. Azatse v. Zeqcor (1994) 5 NWLR (Pt.342) 76 at 83; Idika v. Erisi (1988) 2 NWLR (Pt.78) 503 at 578.”
Although many authorities lay emphasis that a ground of appeal must stem from the of the judgment (ipsissima verba), for instance, in the case of Metal Construction (West Africa) Ltd. v. D.A. Megliore and Ors, in re-Miss C. Ogundare (1990) ANLR 142 at 148; FMB v. NDIC (supra), such decisions in my humble view, by no means limit the scope of a ground of appeal. And, from the general definitions, a ground of appeal, can arise in a number of situations such as the following:
a) from the of the decision appealed against (ipsissima verba)
b) from the procedure under which the claim was initiated
c) from the procedure under which the decision was rendered or
d) from other extrinsic factors such as issue of jurisdiction of a Court from which the appeal emanates.
e) from commissions or omissions by the Court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

CONSTITUTIONAL LAW: PRINCIPLES OF FAIR HEARING
The issue of representation for a party by counsel of the partys choice before a Court, even in civil matters has been said to be in furtherance of the principle of fair hearing as contained in Section 36 of the Constitution by Oputa, JSC; (of blessed memory) in his concurring judgment in the case of NTUKIDEM V. OKO (1986) LPELR – 2075 (SC). PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

WORDS AND PHRASES: DEFINITION OF A LEGAL PRACTITIONER
The question then is who is a legal practitioner? The answer to this is provided by Section 24 of the Legal Practitioners Act as rightly stated by learned DCL. It has not been suggested by learned lead counsel for the Respondent that the A-G, Abia or Law Officers in his department are not legal practitioners. In my considered view just like learned lead counsel, they must have been called to the Bar and enrolled in the Supreme Court before they got their employments. Neither has it been suggested that they have lost their right to practice law simply because of the offices they hold. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

Between

IKWUANO LOCAL GOVERNMENT Appellant(s)

AND

AUSTIFY AND ASSOCIATES LTD Respondent(s)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.(Delivering the Lead Ruling): This ruling is in respect of the preliminary objection (hereafter to be simply referred to as ?P.O.?) raised by the Respondent herein against the appearance or legal representation of the Attorney-General and Commissioner for Justice, Abia State for the Appellant. The Notice of Preliminary Objection (hereafter to be simply referred to as ?Notice of P.O.?) reads: –
?PRELIMINARY OBJECTION
TAKE NOTICE that at the hearing of this matter, the Respondent shall raise objection to the appearance of the Attorney-General and Commissioner for Justice, Abia State or officers of his department in this matter.
The grounds upon which the objection is based are as follows:-
i)The Attorney-General and Commissioner for Justice is the Chief Legal Officer of the Abia State Government;
ii)The Attorney-General and Commissioner for Justice is not the Chief Legal Officer of Ikwuano Local Government;
?iii)Ikwuano Local Government is a third tier government under the Constitution of the Federal Republic of Nigeria 1999;
iv)Ikwuano Local Government is not

an agency of Abia State Government, or her parastatal or department of the State Government.?

Given the contentious nature of the P.O. and positions of the parties thereon, the Court directed that parties should file and exchange written addresses in respect of their respective positions. The process filed by the Respondent who brought the P.O. is titled WRITTEN ADDRESS IN SUPPORT OF THE PLAINTIFF/JUDGMENT CREDITOR/RESPONDENT?S PRELIMINARY OBJECTION TO THE APPEARANCE OF THE HONOURABLE ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE OF ABIA STATE OR ANY OFFICER OF HIS DEPARTMENT IN THIS MATTER/INCOMPETENCE OF PROCESSES FILED BY HIM OR ON HIS BEHALF.? It is dated 15/3/2016 and filed on 7/4/2016. It was prepared by A.G.E. Nwachukwu Esq. The process filed by the Appellant is titled ?WRITTEN ADDRESS OF THE APPELLANT IN OPPOSITION TO THE PRELIMINARY OBJECTION OF THE RESPONDENT.? It is dated 18/4/2016 was filed on 21/4/2016. It was prepared by E, Okezie, Esq. and P.U. Ogubunka, Esq. both of the Ministry of Justice, Umuahia, Abia State. The P.O. was argued 10/11/2016 and both A.G.E. Nwachukwu learned lead counsel for the Respondent and P.U.

Ogubunka learned Director of Civil Litigation, Abia State (DCL) leading I. Eso, State Counsel (S.C.) adopted and relied on the written addresses as hereinbefore identified in support of their respective positions.

Learned lead counsel for the Respondent set out by saying that what he wants of this Court is to restrain the Honourable Attorney-General and Commissioner for Justice, Abia State, or any Legal Officer in his department from appearing in this matter and to strike out all processes of Court filed by them.

?He said to the effect that Section 195(1) of the amended 1999 Constitution of the Federal Republic of Nigeria (hereafter to be simply referred to as ?the Constitution?) established the office of the Attorney-General and Commissioner for Justice (hereafter to be referred to simply as ?A-G? or ?A-G & CJ? depending on the con) for each State of the Federation. That it is clear from the provision that there are two features of that office, one as Chief Law Officer and as Commissioner for Justice of the government of the State. Having cited Section 211 of the said Constitution which confers on the A-G

of a State powers over all criminal prosecutions, i.e. institution, taking over, and discontinuation, of offences created by any law of the House of Assembly, and Section 318 wherein ?government? is defined as: including the Government of the Federation or of any State, or of a local government council or any person who exercises power or authority on its behalf?; as well as Sections 2, 3 and 6 of the Abia State Proceedings Law Cap. 161 1999,learned lead counsel submitted that it is clear from the provisions of the Sections in question that the office of the A-G & CJ is established for the purpose only of serving the government of Abia State as the Chief Law Officer and Commissioner for Justice vested with control over criminal proceedings and that the government of Abia State is different from government of Ikwuano Local Government. That there is nothing in the Constitution; the State Proceedings Law and the Local Government Law of Abia State that confers any power, duty or function on the A-G & CJ in respect of a Local Government. That the A-G & CJ Abia State Government is not the Chief Law Officer and Commissioner for Justice of

the Appellant and that he therefore cannot represent the Appellant in this appeal. That he lacks the requisite capacity.

Stating also that the system of Local Government is constitutionally guaranteed and that in fact it is the third tier of government as recognized by the Constitution, this Court was urged to take judicial notice of the fact that statutory allocations of the monthly allocation of the revenue of the country is shared among the three tiers of government and that it cannot be said that the Appellant is a parastatal, ministry or department of Abia State Government. Reference was made to Section 7(1) and (6)(b) of the Constitution in aid. Again, reference was made to Sections 2 and 3 of the Constitution, which recognise that Nigeria is founded on the principles of Federalism where powers are not only apportioned between the Federal and State Government but also the Local Government with checks and balances and the case of A. G. STATE V. A.G.F. (2006) All FWLR (Pt. 338)736 and Atochi v. A-G, Taraba State (2012) All FWLR (Pt. 635)387 were cited in aid. Also citing Section 78 (3) of the Abia State High Court Law, Cap. 96 learned lead counsel

submitted that applying the ?ejusdem generis rule?,it was never intended that the A-G & CJ should play any role in the representation of Local Governments in matters such as the present case. That the provisions of Sections 78(1) and (2) of the High Court Law of Abia State (supra) strengthens the above position that that office is expressly excluded on the issue of representation of a Local Government. He therefore submitted that the A-G & CJ Abia State or any law officer in his department cannot represent the Appellant in this matter and that Section 79 of the Abia State High Court Law criminalises the continuous appearance of the A-G & CJ or any Law Officer in his department in this matter. In further aid of his position, learned lead counsel cited the case of Forson v. Calabar Municipal Govt. (2004) All FWLR (Pt. 237) 561 wherein this Court interpreted Section 80(3)(b) of Cap. 51 Laws of Cross Rivers State, 1981 which is ?para materiae? with the provisions of Section 78(3) of the Abia State High Court Law and urged this Court to hold that there is nothing in the said Law that authorises or confers on the A-G & CJ Abia

State or Law Officers in his department to represent the Appellant in this matter. This Court was also urged to hold that they lack requisite capacity to so act; more so, when this Court in the Forson?s case (supra) took judicial notice of the Federal Government Approved Schemes of Service for Local Government Employees in Nigeria, 1993, which provides that a legal officer of a Local Government has the duties of appearing for the Local Governments in matters of civil litigations in Courts, and drafting and filing legal documents in Court. It is the stance of learned lead counsel that it cannot be heard from the office of the A-G & CJ that they were authorised by the Local Government Law to prosecute a suit on behalf of the Appellant as the law provides to the effect that the Appellant can only authorise a private legal practitioner to represent her in a suit, where an officer or employee of the Local Government is not representing it. Stating that the consequence of the Court agreeing with the Respondent?s position that the A-G & CJ for Abia State or Law Officers in his department cannot appear for the Appellant in this matter, is that all

the processes filed in this matter including the notice and grounds of appeal cannot stand as no one can put something on nothing and expect it to stand. The Court was urged to the strike out the processes for being incompetent.

Learned DCL posed the issue for determination in the P.O. as: ?whether having regard to the relevant provisions of the 1999 Constitution of Nigeria (as amended), the Legal Practitioners Act Cap. L11 Laws of the Federation, 2004 and Section 78(3) of the High Court Law Cap. 96 Laws of Abia State, 2005 the Attorney-General of Abia State and/or officers of his department are competent to represent the appellant in this appeal or file processes on her behalf.?

Learned DCL answered the issue in the affirmative. Having cited the provisions of Section 195(1) of the 1999 Constitution,learned DCL submitted that a dual role is to be performed by the occupant of the office of the A-G & C.J. namely, he is the Chief Law Officer of the State and secondly he is the Commissioner for Justice of the State Government. He also referred to the provision of Section 3(1) of the Constitution which created 36 States for

the Federation and Section 3(2) which shows that each State of Nigeria named in the First Column of Part 1 of the First Schedule therein shall consist of the area shown opposite in the second column of Schedule. That the areas referred to in second column are the local governments of a State, and that the Appellant is mentioned as the 6th Local Government Area of Abia State in the 2nd column. He submitted that the 17 local government areas constitute Abia State just as the State is constituted of the local governments. That the local governments do not have chief law officers within their respective geographical delimitation. It is the stance of learned DCL that a distinction has to be drawn having regard to the dual role of the A-G & C.J. as Chief Law Officer of the State and as Commissioner for Justice for the State Government. That as Chief Law Officer, the A-G represents all constituents of the State. That the Constitution, did not create the office of A-G & CJ of the State Government. That learned lead counsel for the Respondent was on very wrong footing when he submitted that the A-G & CJ Abia State Government is not the Chief Law Officer and

Commissioner for Justice of the Appellant without drawing a line having regard to the dual nature of the office.

Also stating that learned lead counsel for the Respondent made heavy weather of Section 78(3) of the High Court Law of Abia State, learned DCL submitted that reference to ?legal practitioner? in the section is not restricted to a private legal practitioner as counsel. That by the interpretation section of the Legal Practitioners Act Cap. L11 LFN, 2004 ?Legal Practitioner?, is defined, in Section 24 thereof, to mean ?a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.? That the ?literalegis? of Section 78(3) are plain and this Court was urged to interpret same in tandem with Section 24 of the Legal Practitioners Act, to the effect that the A-G of Abia State and/or officers in his department are legal practitioners who practice for the purpose of their office as Law Officers. That they are competent, as legal practitioners, to represent the

Appellant in the instant matter.This is particularly, as the High Court Law of Abia State strenuously relied upon by learned lead counsel for the Respondent in support of the objection is a law that governs the practice and procedure in the High Court of Abia State. That it does not govern the practice and procedure in the Court of Appeal. That the notice of appeal filed by the Appellant and other processes subsequent thereto, complained of, are governed by the Court of Appeal Rules, 2011 and the Court of Appeal Act, 2004 and learned lead counsel for the Respondent has failed to show that his objection has the authority of the Court of Appeal Rules and/or the Court of Appeal Act. Learned DCL distinguished the Forson?s case (supra) cited by learned lead counsel for the Respondent as the issue in the case on appeal was whether the respondents? counsel, being an employee or salaried worker in the personnel department of the Calabar Municipal Government, was competent to represent the respondent as a legal officer under the provisions of the High Court Law of Cross River State. That in the instant appeal, the issue is whether the A-G or officers in his

department are competent to represent the Appellant. Learned DCL submitted that principles of law do not fly in the air, they must be weighed against the background of the relevant facts of the case for them to be applicable. He also submitted that the Forson?s case (supra) actually lends support to the position of the Appellant in this objection. This is because it was part of the contention of the appellant in the case that the counsel whose appearance prompted the objection by the appellant was not a Law Officer of the Hon. Attorney-General?s department of Cross River State Government. Learned DCL further submitted that the Respondent lacks the locus to challenge the authority of the A-G to prosecute this matter or appeal on behalf of the Appellant and in aid of this he referred to ?Halsbury?s Laws of England, 4th ed., Vol. 3, para. 1179 Subnomen Authority of Counsel ?where it was stated that:?When counsel appears in a suit and states that he is instructed, the Court will not inquire into his authority to appear ? Allen v. Francis K. B. 1065?. It is his position that learned lead counsel for the Respondent has

no locus to challenge the authority of the A-G to represent the Appellant or file processes on her behalf. That it is the Appellant that is competent to complain that the A-G or officers in his department have no mandate to represent her and the case of Tukur v. Govt. of Gongola State (1988) All NLR 42 at 53 was cited in aid. Stating that the Respondent?s P.O. was misconceived, learned DCL urged this Court to dismiss same with costs as appropriate.

It would appear to be clear from the arguments/submissions of the parties as have been highlighted hereinbefore that the issue of the propriety or otherwise of the appearance or representation of the A-G of Abia State for the Appellant as now raised in the P.O. is not one that was raised before the lower Court. Indeed no material has been placed before this Court regarding the representation or non-representation of the Appellant by the A-G before the lower Court. Hence, it cannot be said whether or not the instant P.O., is an attempt to surreptitiously have this Court pronounce on what might end up having effect on the case as fought in the lower Court. This is against the backdrop of the decision of the

Supreme Court to the effect that an appeal can be lodged against some matters extrinsic to a judgment and not necessarily in respect of the ratio decidendi of the judgment itself. See in this regard the case of AKPAN V. BOB (2010) 43 NSCQR 409 wherein the Supreme Court per I. T. MUHAMMAD, JSC; delivering the leading judgment said thus: –
?xxxxxxxxx Authorities are agreed on the legal definition of a ground of appeal. It is said to be the error of law or facts alleged by an appellant as the defect in the judgment appealed against upon which reliance has been placed to set it aside. In other words, it is the reason(s) why the decision is considered wrong by the aggrieved party. See: Olaleye v. the State (1991) 1 NWLR (Pt.170) 708 at 718. Azatse v. Zeqcor (1994) 5 NWLR (Pt.342) 76 at 83; Idika v. Erisi (1988) 2 NWLR (Pt.78) 503 at 578. Although many authorities lay emphasis that a ground of appeal must stem from the of the judgment (ipsissima verba), for instance, in the case of Metal Construction (West Africa) Ltd. v. D.A. Megliore and

Ors, in re-Miss C. Ogundare (1990) ANLR 142 at 148; FMB v. NDIC (supra), such decisions in my humble view, by no means limit the scope of a ground of appeal. And, from the general definitions, a ground of appeal, can arise in a number of situations such as the following:
a) from the of the decision appealed against (ipsissima verba)
b) from the procedure under which the claim was initiated
c) from the procedure under which the decision was rendered or
d) from other extrinsic factors such as issue of jurisdiction of a Court from which the appeal emanates.
e) from commissions or omissions by the Court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of.
The ideal thing is to have a pronouncement from the Court from which the appeal emanates. But, where that Court fails to make a pronouncement such as where motions or objections filed before it are still pending, where it ought to have made one, that will give rise to a ground of appeal. In other situations, the Court from which the appeal emanates may not have to make a

pronouncement as it may not have had the opportunity to do so for instance where a judgment was delivered outside the 90 days period in contravention of Section 258(1) of the 1979 Constitution, but now Section 294 of the 1999 Constitution, if non-delivery within the time limit can cause a miscarriage of justice. Equally, in a case where a judge delivers his judgment after having fully known that he has ceased to be a judicial officer or that he has been elevated to a higher Court. This may furnish a ground of appeal. Or still, where without genuine cause, proceedings or judgment were conducted or delivered in chambers. See: Ifezue v. Mbadugha(1984)All NLR 256; Ogbunyinya v. Okudo (1979)6 – 9 SC 24. In any of the above situations, a ground of appeal may be validly filed as of right or by leave of the Court, as the case may demand.?
In other words it is my considered view that if the Appellant at the lower Court had the same representation it now has in the instant appeal, then the Respondent cannot challenge the appearance or representation for the Appellant by the A-G or Law Officers in his department by way of a P.O. As it is apparent from the nature

of an appeal that it must be the Respondent that had judgment in its favour at the lower Court, I am of the considered view that it is only if there is an appeal by that party, that the propriety of who can represent the Appellant based on the High Court Law of Abia State (which is applicable to the lower Court and not this Court) can properly arise for consideration in this Court. That is to say that the improper representation or appearance for the Appellant at the lower Court based on the High Court Law of the lower Court can only be properly canvassed in this Court as a result of the unsuccessful challenge in that regard before the lower Court. This view is also fortified by the Forson?s case (supra) cited by learned lead counsel for the Respondent.
?
It is also apparent from the arguments/submissions of parties that they have imported or introduced some provisions of the Constitution into the objection thereby giving the appearance or impression that the issue is constitutional. The issue of representation or appearance for the Appellant in this Court in my considered view is a domestic one which must be determined from an interpretation of the

provisions of the Act applicable in this Court and its Rules; Law applicable to the Appellant (if it makes provisions in that regard); and the Legal Practitioners Act which deals with the profession. The importation of the provisions of the Constitution and constitutional concepts that have been flaunted, and which would obviously require pronouncements,are not suited for this Court sitting in a panel of three. That will be for a panel of five Justices to undertake.

The issue of representation for a party by counsel of the party?s choice before a Court,even in civil matters has been said to be in furtherance of the principle of fair hearing as contained in Section 36 of the Constitution by Oputa, JSC; (of blessed memory) in his concurring judgment in the case of NTUKIDEM V. OKO (1986) LPELR ? 2075 (SC).
Against the backdrop of the view that I hold that the issue of representation or appearance for a party by counsel of his choice is that of the party to exercise for the purpose of having a fair hearing in the instant matter, the issue which I therefore consider as being appropriate for the resolution of the Respondent?s P.O. is

whether there is anything in the Law applicable to the Appellant; the Legal Practitioners Act; the Court of Appeal Act; and the Court of Appeal Rules, 2011, which debars or prohibits the Appellant to engage the A-G, Abia State to represent or appear for it, in the instant appeal. The need to countenance the Law applicable to the Appellant is inevitable because though the Constitution in Section 7 guarantees the system of local government by democratically elected local government councils, it is still the requirement of the said Constitution that it is a Law passed by a State that has to ensure the existence, amongst others of Local Governments.

In the written address of the Respondent the provision or provisions of the Law applicable to the Appellant regarding its representation in Court by counsel was or were not specifically or expressly referred to, not to talk of being set out. It is those of Section 80(3)(b) of the Cross Rivers State High Court Cap. 51 and Section 78 of the High Court Law of Abia State and which are ipsissima verba that were set out and the interpretation accorded the provisions by this Court in the Forson?s case (supra), that

learned lead counsel relied upon in his stance that the Appellant can only retain a private legal practitioner as counsel in the instant appeal. This is despite the fact that the provisions never countenanced a dichotomy of any kind between legal practitioners. I have earlier said that as the High Court Law of the lower Court applies to it only, and cannot be made applicable to this Court, this Court not being the lower Court, and that there is no need to countenance the said Law for the resolution of the P.O. But if I must countenance it, I will clearly depart from the interpretation given to the term ?legal practitioner? in the Forson?s case (supra) as it was based on the materials placed before the Court in the said case. In the instant P.O. what is before this Court is the bare provisions of Section 78 of the Abia State High Court and I am of the considered view that it will be contrary to read any dichotomy into the terms ?legal practitioner? having regard to the position of the law that the literal interpretation is the golden rule of interpretation of statues. The bottom line is that the Respondent has not shown that there

is any provision in the Law applicable to the Appellant that debars it from retaining the A-G, Abia State to handle cases in Court for it; and that even if the provisions of Section 78 of the High Court Law of Abia State were applicable to the instant P.O., (which is not conceded) the term ?legal practitioner? contained therein cannot be interpreted to create a dichotomy between legal practitioners.

The Court of Appeal Act on its own part under the interpretation section, i.e. Section 30 simply states that an appellant shall include a legal practitioner representing him. Ditto, the Court of Appeal Rules, 2011.
?
The question then is who is a legal practitioner? The answer to this is provided by Section 24 of the Legal Practitioners Act as rightly stated by learned DCL. It has not been suggested by learned lead counsel for the Respondent that the A-G, Abia or Law Officers in his department are not legal practitioners. In my considered view just like learned lead counsel, they must have been called to the Bar and enrolled in the Supreme Court before they got their employments. Neither has it been suggested that they have lost their right to

practice law simply because of the offices they hold.

Flowing from all that has been said is that I have not seen anything that debars or prohibits the Appellant under the enactments which I have considered above (and which in my considered view are the relevant enactments to consider in resolving the Respondent?s P.O.) from retaining the A-G Abia State to represent it in the instant appeal in the exercise of its right to fair hearing. Ditto, the Law Officers in the department of the A-G, Abia State. Accordingly, the P.O. of the Respondent is found to be misconceived and it fails. It is accordingly overruled.

RAPHAEL CHIKWE AGBO, J.C.A.: I had read before now the lead ruling delivered by Lokulo-Sodipe, JCA and I agree completely with both his reasoning and conclusion. There is a complete lack of merit in the objection. It does not find support in any known statute nor has it anything to do with ethical conduct of counsel. I too overrule the preliminary objection.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the advantage of reading in draft, the lead ruling by my learned brother, Ayobode Olujimi Lokulo-Sodipe, JCA. I

agree completely that the preliminary objection raised by the respondent herein is misconceived, deserves to fail and it is accordingly overruled by me too. I say no more.

Appearances

P.U. Ogubunka (Director, Civil Litigation, Abia State) with him, I. Eso (State Counsel)For Appellant

AND

A.G.E. Nwachukwu with him, I. Okonkwo and M.O. Kalu (Miss)For Respondent