Attorney-general Of The Federation V. Manufacturers Association Of Nigeria & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

MSHELIA, J.C.A.

On the 2nd day of November, 2006, the applicant filed a motion before this court praying for the following orders: –

(1) AN ORDER extending the time within which the party interested/applicant may apply for leave to appeal against the decision of the High Court of Lagos State, in suit No. ID/105M/2001, contained in the ruling of Honourable Justice O. M. Falase (Mrs.), delivered on 14th day of November, 2002, as party having an interest in the matter.

(2) AN ORDER granting leave to the party interested/applicant, to appeal against the decision of the High Court of Lagos State, in suit No. ID/105/2001, contained in the ruling of Honourable Justice O.M. Falase (Mrs.), delivered on 14th November, 2003, as party having an interest in the matter.

(3) AN ORDER for enlargement of time within which the party interested/applicant, may file his notice of appeal against the decision of the High Court of Lagos State, in suit No. ID/105M/2001, contained in the ruling of Honourable Justice O.M. Falase (Mrs), delivered on 14th day of November, 2003.

As an addendum to his prayers, the applicant set out the following as the grounds of his application –

“1. The applicant was not made a party to suit No. ID/105M/2001, instituted before Honourable O.M. Falase (Mrs.), of the High Court of Lagos State, throughout the trial and determination of the case.

2. The court below delivered a judgment which nullified parts of decree No. 102 of 1993 and No. 21 of 1998, promulgated by the Federal Government without the joinder of the applicant as a party to the case.
3. The respondents and the court were under a duty to make the applicant a party to the case in all cases affecting the validity or otherwise of a Federal legislation at the lower court.
4. The judgment of the court below prejudicially affects the rights and interests of the applicant.
5. The order made by the trial court is being relied upon by respondents and their allies, to avoid payment of taxes due to the Federal Government of Nigeria and the State Government alike.”

There is an affidavit of 13 paragraphs in support of the said motion to which has been exhibited a copy of the judgment of the lower court and the proposed grounds of appeal. These documents are marked exhibits ‘A’ and ‘B’ respectively. A further affidavit of 8 paragraphs was also filed by the applicant. A clearer copy of exhibit ‘A’ the judgment of the lower court was attached.

In reaction to the application, 1st-17th respondent did not file counter-affidavit, while the 18th-19th respondents did file a 15 paragraphed counter-affidavit.

Arguing the application, Adebayo Esq. of counsel for the applicant submitted that before the court can exercise discretion to enlarge time to appeal against the decision of the lower court, applicant must show good and substantial reasons why it could not appeal within the time allowed and the grounds of appeal must prima facie show good cause why the appeal should be heard. He relied on all the paragraphs of the main affidavit in support and the further affidavit. Counsel referred particularly to paragraphs 4, 5 and 6 of the main affidavit in support and contended, that applicant only became aware of the matter on 24/04/04 when time to challenge the decision has already elapsed, hence this application. Learned counsel referred to paragraph 6 of the 18th and 19th respondent’s counter-affidavit and contended, that the reason advanced to the effect that applicant was aware of the pendency of the matter before the lower court, but chose to stand by, is not tenable. Learned counsel contended that applicant was not joined as a party and Chief Afe Babalola, SAN, only represented the 1st-17th respondents at the initial stage of the case, before the lower Court because another counsel was briefed to conclude the case. Applicant in his view had advanced good and substantial reasons for the delay.

On the second prayer, i.e., seeking leave to appeal as an interested party, learned counsel contended that applicant must satisfy two conditions (1) that he was not aware of the pending suit (2) that judgment directly affects his interest. He relied on paragraph 3(b) of the supporting affidavit and contended, that relief directly challenged the Federal Legislation. The effect of the decision is that plaintiffs should obey State Legislation, rather than Federal Legislation. In support of his contention he referred to the cases of Williams v. Mokwe (2005) 14NWLR (Pt 945) 249 at 268 – 269; and Kalu v Odili (1992) 5 NWLR (Pt. 240)130 at 131-132. Furthermore, counsel contended that any action that challenges or puts to test any Federal legislation deserves representation of the Federal Government. He urged the court to grant the prayers sought.

Owoyele Esq of counsel to the 1st -17th respondents intimated the court that he was not opposing the application.

On the part of the 18th and 19th respondents, the Director Civil Litigation, Lagos State Ministry of Justice, Lawal Pedro, opposed the application. He relied on all the paragraphs of the counter- affidavit. For the grant of an application of this nature, he contended that applicant not being a party to the suit, must show sufficient interest in the subject – matter of the dispute at the lower court. To be entitled to appeal, party ought to show that their interest would be affected. He referred to the relief sought before the lower court at page 2 of exhibit ‘A’ the judgment sought to be appealed against. Learned counsel submitted that, it was state law that was challenged before the lower court and other relief which did not affect the interest of the applicant. Counsel contended that the judgment of the court was in line with the relief sought as such applicant is an interloper since they have nothing to do with the matter. Learned counsel submitted that, the proposed grounds of appeal are not substantial or arguable. The grounds of appeal did not arise from the decision of the lower court. It was contended that the grounds raised fresh issues not canvassed in the court below against 18th and 19th respondents. Particular reference was made to ground 1.

Learned counsel contended that applicant had failed to satisfy the conditions for grant of an application of this nature.