PERMANENT SECRETARY, BUREAU FOR LOCAL GOVERNMENT & CHIEFTAINCY AFFAIRS v. BOLOGI NIGERIA LIMITED
(2019)LCN/13169(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of March, 2017
CA/YL/95M/2016(R)
RATIO
APPEAL: THE PROVISION OF THE COURT OF APPEAL ACT AS REGARDS TIME AND MANNER WITHIN WHICH TO FILE APPEALS
Under the Court of Appeal Act, 2004, the time and manner prescribed for filing appeals to this Court in both interlocutory and final decisions are provided for at Section 24 (1) (2) of the Act, thus:-
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 provision of Subsection (2) of this Section that is applicable to 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.PER SAIDU TANKO HUSSAINI, J.C.A.
APPLICATION FOR EXTENSION OF TIME: WHAT AN APPLICANT MUST SHOW IN ORDER FOR THE APPLICATION TO BE SUCCESSFUL
In addition to the application being made, for this Court to exercise its discretion one way or the other, the person seeking the indulgence of Court must place before it necessary materials for the Courts exercise of judicial discretion and this explains why the applicant under the new rules, must place before the Court:
(1) Good and substantial reason for failure to appeal within the period prescribed, and
(2) Grounds of appeal which Prima facie show good cause why the appeal should be heard.
See Order 6 Rule 9 (2) of the Court of Appeal Rules, 2016 which is in pari materia with Order 7 Rule 10 (2) of the Court of Appeal Rules, 2011 under which the application was brought. Rules of Court are meant to be obeyed. See: Williams V. Hope Rising Voluntary Society (1982) All NLR 1; Ugwu Vs. Bunge (1997) 8 NWLR (518) 527, 543 hence an application for extension of time to appeal is not granted as a matter of course but upon consideration of relevant materials as ordained by the Rules of Court.PER SAIDU TANKO HUSSAINI, J.C.A.
LITIGANT: A LITIGANT IS ENTITLED TO THE SERVICE OF COUNSEL OF HIS CHOICE
A litigant is entitled to the service of counsel of his choice. If by the inadvertence of the clerk to the applicant, the process served on him was not sent to the Attorney General in good time, the applicant should not in my view be punished for it, for the delay in filing of his appeal, while still awaiting the legal advice of his counsel.PER SAIDU TANKO HUSSAINI, J.C.A.
Between
PERMANENT SECRETARY, BUREAU FOR LOCAL GOVERNMENT & CHIEFTAINCY AFFAIRSAppellant(s)
AND
BOLOGI NIGERIA LIMITEDRespondent(s)
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Lead Ruling): This High Court of Taraba State sitting in Takum on the 13th day of July, 2015 made an Order of mandamus to compel the Applicant to perform the duties imposed on it by law. By that order of the High Court, the applicant was directed to deduct from the State/Local Government Joint Account of Taraba State under the control of the Applicant, the Judgment sum, the Takum Local Government was indebted to the respondent.
This order of Court, though brought to the notice of the Applicant had not been observed even at the time committal proceedings were initiated against the applicant for contempt. The High Court later dismissed the Committal Proceedings.
The background facts giving rise to this application can be traced to the Manpower Audit Contract wherein Takum Local Government engaged the Respondent, Bologi Nigeria Limited to carry out a manpower review of its staff. When however a dispute arose for the non-payment for work done, the Respondent instituted action against Takum Local Government before the High Court of Taraba State, at Takum Judicial Division for damages. Although
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Takum Local Government brought application for stay of proceedings, the Court in its wisdom referred the matter to a three-man arbitration panel in line with the relevant clause in the agreement between the parties.
The arbitration panel after hearing the case of both sides, on the 27th April, 2014 delivered an award in favour of the Respondent and against Takum Local Governments wherein they found it liable to the Respondent as follows:
(a) N16,247,775.00 (Sixteen Million, Two Hundred and Forty-Seven Thousand, Seven Hundred and Seventy-Five Naira) only being the outstanding balance of professional fees unpaid as at 29/12/2008
(b) 2% simple interest per week on the sum of N19, 247, 775.00 from 23/10/2008 until 29/12/2008
(c) 2% interest per week on the sum of N16,247,775.00 (Sixteen Million, Two Hundred and Forty-Seven Thousand, Seven Hundred and Seventy-Five Naira) only from 29/12/2008 to 11/3/2013.
(d) N134,000.00 being reimbursement for hotel accommodation fees
(e) 10% interest per annum on the sum of N16,247,775.00 from 11/03/2013 until the entire award is paid.
The High Court of Taraba State
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recognized the award made by the three-man arbitration panel and adopted same as the Judgment of the Court, hence Takum Local Government was ordered to pay to the respondent those monetary awards but the Local Government was not in a hurry to do so despite repeated demands.
Consequent upon Takum Local Government not meeting its debt obligations to the respondent and the applicant also not heeding the directives or order of the High Court to deduct monies accruing to the Local Government from the State/Local Government Joint Account, the respondent by a Writ applied to the same High Court to compel the Applicant, in the exercise of its public duty under Section 201 of Taraba State Local Government Law, to make those deductions from the joint account in his custody and pay the respondent. After hearing the parties on this issue the High Court in the Ruling delivered on 13th July, 2015 granted an order of Mandamus and directed the Applicant to make necessary deductions from the joint State and Local Government account under its control.
The applicant on whom the order was directed has initiated the proceedings, before us by way of the application, a Motion
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on Notice, wherein he sought all the trinity prayers among others, contained and or listed as per the reliefs in the Motion paper thus:
1. AN ORDER for extension of time within which the Applicant may seek leave to appeal against the ruling of the Taraba State High Court, Takum Division delivered on 13th day of July, 2015 in Motion No. TRST/30M/2014 Between Bologi Nigeria Ltd vs. Permanent Secretary, Bureau for Local Government and Chieftaincy Affairs, Taraba State.
2. LEAVE to appeal against the aforesaid ruling of the trial Court.
3. EXTENSION OF TIME within which the Applicant may appeal against the decision of the State High Court, Takum Division delivered on 13th day of July, 2015.
4. AND FOR SUCH ORDER or further Orders as the Honourable Court may deem just and expedient to make in the circumstances of this case.”
In support of this application dated the 17th August, 2016 and filed on the 22nd August, 2016 is the affidavit of 11 paragraphs deposed to by Rika Tirka, a Staff in the Ministry of Justice of Taraba State. Annexed to the application are 2 (two) Exhibits namely, the ruling of the High Court of Justice, delivered on the
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13th July, 2015 and the proposed Notice of Appeal both marked as Exhibits TRS 1 & 2 respectively.
There is the counter-affidavit of 35 (thirty five) paragraphs filed by the respondent on 11th October, 2016 to which is annexed, 9 (nine) Exhibits namely, PE1, PE2, PE3, PE4, PE5, PE5a, PE6, 6a and 6b.
Upon the counter-affidavit being served, the applicant filed a further affidavit of 11 paragraphs on the 24th October, 2016. He denied aspects of the counter-affidavit of the respondent.
Pursuant to the order of this Court made on the 2nd November, 2016, the parties through their counsel respectively filed their written addresses in the following manner, that is to say:-
(1) The written address dated the 6th November, 2016 was filed on the 15th November, 2016 in support of the application, the Motion on Notice dated the 17th August, 2016 and filed on the 22nd August, 2016.
(2) The Written address filed on behalf of the Respondent on the 29th November, 2016 in opposition to the applicants Motion for enlargement of time to appeal.
(3) There is also the Reply on points of law dated the 4th December, 2016 and filed on behalf of the
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applicant on the 5th December, 2016.
Learned counsel on both sides, at the hearing of the application adopted their respective written addresses. Mr. I. A Sambo urged us to grant the application to pave the way for him to appeal against the Ruling of the High Court of Taraba State. For the Respondent, it was urged on us through his counsel Dr. G. O. A Ogunyomi that the application only merits an order of dismissal.
There is the need therefore to examine those contrasting claims or contentions viewed from facts on the ground. But first I should ponder for a while, to ask the question whether indeed the trinity prayers as couched by the applicant in his Motion paper are necessary if the applicant must appeal the decision or ruling of the Taraba State High Court delivered in Takum on the 13th July, 2015 attached to the application and marked as Exhibit TRS1?
I have taken a close study of the Ruling or decision under reference and my quick answer is in the negative in the con of the order made at that Court.
In the concluding paragraphs of the ruling delivered by Hon. Justice E. A. Garba, the Court held at page * thus:
The Local
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Government Law of Taraba State has under Section 201 placed a responsibility on the Respondent to perform certain functions which duty the Respondent did not perform. It therefore becomes necessary for the Court to compel him to do what Section 201 of the State Local Government Law imposed on it.
In view of the foregoing I hereby grant an order of mandamus to compel the Respondent to deduct the Judgment sum awarded in favour of the applicant by the arbitration panel award that was recognized by this Court and ordered to be enforced as the Judgment of this Court. For the avoidance of doubt the Respondent is hereby ordered to deduct the Judgment sum of N93, 68, 113. 65 from the Statutory grant of Takum Local Government that accrues from the Joint Local Government Account and managed by the respondent.
This Order, to my mind, is a final order of the High Court relative to the application made to it, to compel the applicant to perform a duty.
A decision is final when it completely determines the rights of the parties before the Court. See: Omonuwa V. Oshodin (1985) 2 SC 1; Akinsanya Vs. UBA (1986) 7 SC (Pt. 1) 17. Ude Vs. Agu (1961) All NLR 458;
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Akintola Vs. Aderemi (1962) 1 All NLR 461. The Court of the English Queens Bench Division, speaking in the case of Bozson v. Altrincham UDC (1903) 7 KB 548, on the test to be applied in determining whether a Judgment or decision of a Court of First Instance is final or Interlocutory held:-
It seems to me that the real test for determining this question ought to be this. Does the Judgment or Order, as made finally dispose of the right of the parties? If it does then I think it ought to be treated as a final order; but if it does not it is then, in my opinion, an interlocutory order.
Applying this test to the ruling covered by Exhibit TRS1, the order contained therein can only be a final order and an appeal against it can only be as of right under Section 241 of the Constitution of the Federal Republic of Nigeria, 1999. The person seeking to appeal against the decision but who is out of time can only do so by way of an application made seeking for extension of time. He does not require leave of Court to appeal as of right.
Instances where leave of Court is required are cases or proceedings in interlocutory matters or
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Ruling. A proceedings in an action is interlocutory when it is incidental to the principal object of the action namely, the Judgment. An application to appeal against interlocutory ruling after 14 days is guided by Section 24 (2) of the Court of Appeal Act, 2004 and Section 242 (1) of the 1999 Constitution hence the 3 (three) usual prayers often referred to as the trinity are the three substantive prayers required, are:
(1) Extension of time within which to seek leave to appeal.
(2) Leave to appeal; and
(3) Extension of time within which to appeal.
See: Ault & Wiborg (Nigeria%2
