EZOMO V. A-G. BENDEL STATE

• Pages: 1154-1172

1154

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NIGERIAN SUPREME COURT CASES [1986] 2 N.S.C.C.

matter which it is entitled to protect. Besides they were neither parties nor were

they given notice of the matter.

In my opinion for the Court of Appeal to exercise its discretion to grant respond-

ent leave in this matter it ought to consider the basis of the respondent's interest,

and

strictosensu

whether he is a person aggrieved within the meaning of the Sec-

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tion and his general conduct in the litigation. It is not sufficient merely that Re-

spondent was named in the application for the quashing of the warrant. It is also

not a valid reason that he acted in his judicial capacity. I consider it an acceptable

proposition that where a Judge has been brought to Court entirely for acts done

in his official capacity, I do not think that is a situation which vests in the Judge the

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status of an aggrieved person for the purposes of s.222(a) of the 1979 Constitu-

tion. It is my opinion contrary to public policy to concede that a Judge has any

personal interest in the validity or otherwise of his judicial act. This is because the

Judge enjoys immunity from process in respect of all acts done judicially see

Egbe v. Adefarasin & Anor

(1985) 5 S.C. 50. It will therefore be inconsistent for

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him to have any person legal interest in matters in which he enjoys absolute legal

immunity. I hold therefore that respondent has no such interest in the ruling before

the learned trial Judge as is envisaged under Section 222(a) of the Constitution

1979.

In the circumstances, the Court of Appeal was clearly in error in the exercise

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of their discretion to grant the Respondent extension of time to appeal and leave

to appeal against the ruling of Chianakwalam, J. for refusing leave to appeal

against the decision quashing a warrant issued by the Respondent.

It was for the reasons I have given above that I concurred in allowing the ap-

peal on the 11th June, 1986.

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Appeal allowed.

EZOMO V. A-G. BENDEL STATE

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1.

M.U.O. EZOMO

(Substituted by

2.

DANIEL OSAHON UHIMWEN)

V

ATTORNEY-GENERAL, BENDEL STATE

SUPREME COURT OF NIGERIA

APPELLANT

35

SUIT

RESPONDENT

NO. SC 65/1985

40

ESO,

ANIAGOLU,

UWAIS,

COKER,

KARIBI-WHYTE,

14th July,

1986

J.S.C.

J.S.C.

J.S.C.

J.S.C.

J.S.C.

45

Constitutional Law - Attorney-General - Power to institute and discontinue

proceedings - S.I91 of the constitution - Applicability to civil proceedings -

Attorney-General and Solicitor-General - Who is superior - Action against

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Government - Who to sue.

EZOMO V. A-G. BENDEL STATE

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1155

Appeals - By state Government - Withdrawal by Attorney-General - WhetIzer

binding on State Government - Applications before and after entry of Appeal

- Proper Court to Entertain - Notice of withdrawal - Notice filed in lower

court - Propriety of - Order 3 Rule 18(1)(5) and Order I Rule 22 Court of

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Appeal Rules.

ISSUES:

1. Whether a notice of withdrawal of an appeal can be filed in the lower court

whose decision is being appealed against. Is such a notice valid.

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2. Whether the Attorney-General of a State has the authority to withdraw an appeal

filed by the Government of the State.

3.

Whether the filing of a notice of withdrawal of an appeal in a High Court, renders

such notice a nullity.

4.

What is the effect of filing a notice of withdrawal of an appeal?

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5. Whether a party who has filed a notice of withdrawal of an appeal, can be

allowed to subsequently withdraw his withdrawal.

6. Whether the forfeiture of property can be ordered without proof of illegal

acquisition.

FACTS:

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The Government of Bendel State, gave an order for forfeiture of the property

of a public officer. It was found however, that the property did not belong to the

said public officer, but to the man's father, who was the plaintiff in this action. After

various applications to the Government against the forfeiture of the property, with-

out success, the plaintiff brought an action in the High Court, claiming

inter alia,

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that the purported forfeiture was null & void, and that he was entitled to possess-

ion of the said property. The learned trial judge entered judgment in favour of the

plaintiff, and the defendant (the Attorney-General of Bendel State) appealed to the

Court of Appeal. The Notice of Appeal was filed in 1980, but in April 1983, the At-

torney-General filed a notice of withdrawal of the appeal, in the High Court, under

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Order 3 Rule 18(1) of the Court of Appeal Rules 1981. The notice however was

not sent to the Court of Appeal. The Attorney-General was replaced by another At-

torney-General, and when the appeal came up for hearing, the plaintiff raised a

preliminary objection that the withdrawal of the appeal meant that the appeal was

deemed to have been dismissed. The Court of Appeal dismissed the objection,

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and the plaintiff thus appealed to the Supreme Court.

HELD:

1.

The filing of an application may be done in any office or place designated for

the purpose by the Rules. In dealing with the act of filing an application, Order

1 Rule 22 of the Court of appeal Rules 1981 provides that any application may

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be filed in the court below for transmission to the court. Thus a notice of

withdrawal of an appeal can be validly filed in the lower court, whose decision

is being appealed against.

2.

The Attorney-General of a state has the authority to withdraw an appeal in which

he was the defendant in his capacity as such defendant. The Attorney-General

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was the defendant in this case, and he was also the counsel for the Government

of Bendel State. He thus had the right and the capacity to discontinue the appeal.

3.

The filing of a notice of withdrawal of an appeal in a High Court, does not render

such notice a nullity, by virtue of the provisions of Order 1 Rule 22 of the Court

of Appeal Rules 1981. The withdrawal notice filed was validly filed.

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4. The effect of a notice of withdrawal validly filed is that Order 3 Rule 18 of the

Court of Appeal Rules automatically takes effect. Rule 18(5) provides that an

appeal which has been validly withdrawn under this rule, whether with or without

an order of the court, shall be deemed to have been dismissed. Thus the appeal

filed is automatically dismissed according to the provisions.