Attorney-general, Rivers State V. Ikenta Best Nigeria Limited & Anor (2003)

LawGlobal-Hub Lead Judgment Report

SUNDAY AKINOLA AKINTAN, J .C.A.

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.