It is improper to raise issues of jurisdiction in piecemeal fashion.

 

Oko v. State [2017] 17 NWLR (Pt. 1593) 24 at 65-66, paras. H-A, per Peter-Odili, JSC:

“Clearly, this partition or fragmentation of the jurisdictional question is one to which the appellant is estopped from embracing. It is all the more foreclosed as counsel had the time and opportunity of raising the issue of the lack of consent in the trial court and failed to do so. He lost his chance which he cannot call up as the fancy takes him.”

Blogger’s Note:

The pronouncement of the Supreme Court above is significant in addressing the practice of some counsel who might have observed some objectionable points touching on jurisdiction but would rather elect to raise the points piecemeal. That is to say, as a matter of tactics, counsel may observe 3 jurisdictional questions but would file a preliminary objection or motion raising one or two grounds only; leaving the third as a ‘spare bullet’ to be used (either at the court of first instance or on appeal) should the earlier application fail.

Issue of jurisdiction

The apex Court has moved against such practice holding that it is not proper to split jurisdictional questions piecemeal and in different courts. The reasoning of the Supreme Court is that ‘a party cannot be allowed to partition his course of action in bits and pieces’ as such runs contrary to the principle that there must be an end to litigation. The Court relied on the earlier case of Ejiofodomi v. Okonkwo (1982) 12 NSCC 422 where the Supreme Court observed that challenge to court’s jurisdiction could be based on diverse points; nevertheless, it is wrong for a party to argue a particular issue of jurisdiction up to appeal court and then jettison the issue, only to raise a new jurisdictional issue for the appellate court to consider.

At a glance, it would appear like the foregoing runs against the principle that an issue of jurisdiction can be raised at any time even for the first time on appeal and without leave. See Nasir v. Kano State Civil Service Commission [2010] 6 NWLR (Pt 1190) 253 at 276.

However, one is persuaded by the ‘mischief’ which the Supreme Court seeks to cure and that is to avoid needless delay and put an end to litigation. It is incumbent on counsel to ensure a prior thorough review of a case and to raise any issue of jurisdiction in good time. After all, it is trite that an issue of jurisdiction, though a threshold issue, should be raised at the earliest opportunity. See Nonye v. Anyichie [2005] 2 NWLR (Pt. 910) 623.

Jurisdictional issues

Indeed, in deserving cases, the courts are inclined to determine an issue of issue of jurisdiction raised for the first time even on appeal. Put simply, the apex Court did not consider the instant case (Oko v. State) as falling under one of those deserving cases. Why? In the case, a charge was before the Chief Magistrate, Yala, Cross River State against the Appellant and others. Subsequently, Information was preferred before the Cross River State High Court against them. The Appellant challenged the jurisdiction of the High Court on the ground that the charge was earlier on before the Chief Magistrate. The High Court Judge presiding considered the objection in the light of all that transpired and ruled that it had jurisdiction and proceeded with the trial. At the close of the prosecution’s case, the Defendant made a no case submission which was overruled by the learned trial Judge and the Court of Appeal. On a further appeal to the Supreme Court, the Appellant contended for the first time that the prior consent or direction of the High Court was not obtained before the Information was preferred and so, the trial Court lacked jurisdiction to try the case. The Supreme Court held that the Appellant cannot be allowed to challenge the jurisdiction of court in a fragmented style. The apex Court however had no difficulty in holding that the failure to obtain the said consent did not invalidate the trial. The no case submission was also overruled upon due consideration and appeal consequently dismissed.

The brutality of SARS has long been judicially noticed.

 

David Alunyo v. Inspector General Police & Ors – Suit No. FCT/HC/M/5449/09, per Belgore, J.:

 

But was the detention beyond the prescribed limit and was the injury inflicted right in law? The answer is in the negative. The applicant was detained for 3 days. This is unconstitutional. By the provisions of Section 35(5) of the 1999 constitution as amended, arrest and detention of a citizen should only be for ONE DAY. The point must be made clearly that any violation of a citizen’s guaranteed fundamental right, for however short a period, must attract penalty under the law. See Alabo v. Boyes (1984) 5 NCLR 830; Jimoh v. A. G. Federation (1988) 4 RLRA 513. To make the matter worse, the applicant was subjected to grave inhuman condition, indignity and brutality which is not expected of any civilized police force. The conduct of the affected police officers who handled the investigation left much to be desired. It is roundly condemnable. A person or state agents who are called upon to deprive other citizens or persons of their personal liberties in the discharge of what they consider to be their duty should strictly observe the civilized forms and rule of law.

Blogger’s Note:

This was a fundamental rights suit filed by the Applicant against the Inspector General of Police, Commissioner of Police, FCT and SARS. The facts of the case accepted by the Court are that the applicant was accused of stealing a car. The applicant was arrested and detained by the Special Anti Robbery Squad (SARS) for 3 days -i.e., from 1/7/09 to 4/7/09. Consequent upon the arrest and detention of the Applicant, he was thoroughly beaten, stripped naked, handcuffed, tied with a rubber as a result of which his health rapidly deteriorated. The Applicant’s vehicle that was taken from him was later released to him. On the 2nd day of his detention, he was taken to hospital. The Applicant was on the 4th day of his detention granted police bail. The Court found the conduct of SARS in the process as condemnable and delivered Judgment in favour of the Applicant, awarding him 2 Million Naira as damages.

The above case represent one of the numerous fundamental rights cases hanging over the Nigeria Police and SARS following several cases of fundamental rights breaches. In view of the unlawful activities of some members of the Squad nationwide in fairly recent years, one can reasonably liken SARS to a “terror group”. Currently, the public has raised alarm over the excesses of SARS, pressing for the scrapping of the Squad. In a swift reaction, the IGP has indicated that SARS would undergo some form of reorganisation and that all the allegations levelled against them would be investigated. It is to be recalled that SARS (which is one of the sections in the Criminal Investigation Department (CID) of the Nigeria Police, headed by a Commissioner of Police) was actually formed to specially battle the menace of armed robbery plaguing the nation.

SARS brutality judicially noticed

Image credit: The Guardian.

Our suggestion is that the reorganisation should involve a total re-orientation, re-education and re-training of the Squad members. At present, even the dress code of the Squad members sometimes while on patrol makes it difficult to differentiate them from real armed robbers. This leaves much to be desired, and should also be looked into. The Nigeria’s SARS should, for instance, appear like the United States’ SWAT (Special Weapons and Tactics).

It is our hope that this exercise by the IGP would be decisive and effective, yielding the desired profits so that the Squad can focus on the primary reason for its formation.

Read the Judgment here.

Featured Image credit: YNaija.

A Garnishee lacks the power to fight the cause of a Judgement Debtor.

 

Guaranty Trust Bank Plc v. Innoson Nig. Ltd. [2017] 16 NWLR (Pt. 1591) 181 at 203, paras. D-F, per Eko, JSC:

“It is not for a garnishee to fight the cause of a judgment debtor who either accepts the judgment against him and does nothing about it, or who may be indolent to fight his cause. No power in law inheres in the garnishee to make himself a busybody and proceed like Don Quixote, the Knight Errant, to fight the cause of the judgment debtor who is his customer. A judgment debtor whose money or property is seized or attached through garnishee proceedings in excess of the judgment sum has several options in law to deploy to forestall such unwarranted seizure or attachment. It is not for the garnishee to embark on any of such options, which he lacks the locus standi to embark on. The cause of action accruable to the garnishee in a garnishee proceeding is quite a limited one. It does not include his usurping the cause of action of the Judgment Debtor.”

Blogger’s Note:

The Supreme Court by the above statement further reiterated what is otherwise trite principle of law regarding garnishee proceedings. It remains a mystery why the Appellant decided to fight what the apex Court rightly described as a mischievous proxy war against a Judgment that does not concern it. Continue reading A Garnishee lacks the power to fight the cause of a Judgement Debtor.

ALL decisions of the National Industrial Court are appealable to the Court of Appeal.

 

Skye Bank Plc v. Iwu [2017] 16 NWLR (Pt. 1590) 24 at 105-106, paras. H-E, per Nweze, JSC:

“In all, then, on a holistic interpretation of sections 240 and 243(1) of the 1999 Constitution, appeals lie from the trial court (National Industrial Court) to the lower court (Court of Appeal), that is, all decisions of the trial court are appealable to the lower court: as of right in criminal matters, [section 254c(5) and (6)] and fundamental right cases, [section 243(2)]; and with the leave of the lower court, in all civil matters where the trial court has exercised its jurisdiction, sections 240 read conjunctively with sections 243(1) and (4). The answers to the questions posed to this court in this case statement, therefore are: (a) the lower court, that is the Court of Appeal, has the jurisdiction, to the exclusion of any other court in Nigeria, to hear and determine all appeals arising from the decisions of the trial court, that is, the National Industrial Court; (b) no constitutional provisions expressly divested the said Court of Appeal of its appellate jurisdiction over all decisions on civil matters emanating from the trial court, the National Industrial Court; and (c) as a corollary, the jurisdiction of the Court to hear and determine civil appeals from the decisions of the National Industrial Court is not limited, only, to fundamental rights matters.”

Blogger’s Note:

The above epoch-making decision of the Supreme Court has laid to rest the controversies surrounding the legal status of the decisions of the National Industrial Court (NIC). Taken that presently, many are already aware of this decision, we shall here highlight the deducible rationale behind the majority decision and the reasoning of the Supreme Court (in no particular order). Continue reading ALL decisions of the National Industrial Court are appealable to the Court of Appeal.

Dreams Still Come True: Babalakin and Co Honours Tola Oshobi SAN

 

Tola Oshobi SAN.

Tola Oshobi (SAN), partner, Babalakin and Co. (B & C), and Head, Litigation and Dispute Resolution Group was recently conferred with the prestigious rank of the Senior Advocate of Nigeria on Monday, 18th September, 2017. The latest Silk in town joins his two other Seniors in the Firm in the inner bar – Dr. Bolanle Olawale Babalakin (SAN) and Mr. Wale Akoni (SAN). Continue reading Dreams Still Come True: Babalakin and Co Honours Tola Oshobi SAN

A debtor can validly transfer, by novation, his debt obligations without the written consent of the creditor.

 

Crushing Dragon (Nig.) Ltd & Anor. v. Skye Bank Plc & Anor. Suit No. LD/ADR/534/2013, page 9, per Animahun J.:

“In Pat Onegbedan, Esq. v. Unity Bank Plc (2014) LPELR-22186 (CA), novation was described thus: “Contract by novation is a form of assignment in which by consent of all parties thereto, a new contract is made and substituted for an existing contract. Hence one of the essentials of the new contract, that is, novation, is that the consent of all the parties must be obtained. However, such consent need not be in writing; it may be inferred from the conduct of the parties, without express words…” See also African Continental Bank Ltd & Anor v. Ifeanyi Ajugwo (2011) LPELR – 3637 (CA). So, the issue is not (as argued by Counsel for the 1st Defendant) that the novation is invalid because the 1st Defendant did not consent to it. Rather, it is whether the 1st Defendant can be heard to deny the validity of the novation having taken benefit thereunder. The additional benefit gotten by the 1st Defendant is the property of the deceased used as a collateral for the debt.”

Continue reading A debtor can validly transfer, by novation, his debt obligations without the written consent of the creditor.

A counsel whose fees have not been settled can lawfully refuse service of a process on him.

 

Darlington Eze v. Federal Republic of Nigeria [2017] 15 NWLR (Pt. 1589) 433 at 477, paras. F-G, per I. T. Muhammad, JSC:

“…The settled practice is that a counsel whose fees have not been settled can lawfully refuse service of a process on him, and in that case, the litigant must personally be served with the process in question before a decision is taken against him, failing which would amount to a breach of the right of fair hearing…”

Blogger’s Note:

The Supreme Court has by the above position made it clear that solicitor’s professional fees should ordinarily be taken seriously to avoid needless risks. For instance, where a counsel refuses to accept a process served on him for failure of his client to perfect his brief and the process is accordingly served on the litigant himself and proof of the said service is supplied, the court can validly proceed with the case and will not wait for the litigant to brief another counsel. Thus, it is a huge risk for a litigant to treat his solicitor’s fees as a trivial matter. Continue reading A counsel whose fees have not been settled can lawfully refuse service of a process on him.

The pain and hardship of young lawyers in the hands of senior colleagues has been judicially noticed.

 

Ifeanyi Okeke Esq. v. Wale Ogunade Esq. Suit No. NICN/LA/432/2014, per Amadi J:

“This case once again shows the pain, hardship and difficulty which some young lawyers undergo in the hand of some senior colleagues, who ordinarily should encourage them. I commend the tenacity and dexterity of the Claimant in pursuing justice in this matter since 2012 up to this stage. In the same vein, I condemn the conduct of the Defendant in trying to wish away the earned salary of the Claimant in this suit.”

Blogger’s Note:

Sadly, the hardship young lawyers face in Nigeria in the hands of senior colleagues is now judicially noticed. This pain and hardship manifest in various forms ranging from incredibly and ridiculously low earnings to massive exploitation of human skills, time and energy. Thus, even some firms who pay fairly good salaries more or less ask for the ‘blood’ of the associates working for them, in a manner clearly suggestive of acute ‘noble’ slavery. This runs against all internationally recognised labour standards and best practices. Taken that the practice of law is largely rigorous and that young lawyers must pay their ‘dues’ (whatever that means) in the course of being trained on the job, this should not be a general excuse for subjecting young lawyers to a working condition that totally rob them of reasonably fair and decent living. Continue reading The pain and hardship of young lawyers in the hands of senior colleagues has been judicially noticed.

Heads of court must prevent politicians from abuse of court process.

 

PDP v. Sen. Ali Modu Sheriff & Ors. [2017] 15 NWLR (Pt. 1588) 219 at 279-280, paras. F-B, per Rhodes-Vivour, JSC:

“The 1st respondent and his allies filed over ten suits. The Court of Appeal had this to say. The 1st appellant (i.e. 1st respondent) I agree displayed an infantile desperation to cling to office at all costs. I agree with the observation of the Court of Appeal. The 1st respondent was always driven by the implacable desire to remain in office as chairman at all cost. That desire was explored relentlessly by filing over ten suits within one year to perpetrate himself in office. Most of those suits have been abandoned. They shall forever gather dust in judicial archives and remain dusty reminders of how not to seek judicial remedy. The stakes are very high in political matters. So, if allowed, political office seekers would not hesitate to file multiplicity of suits on the same subject matter, hoping to get a favourable judgment from one court or the other. Their quest for this includes forum shopping. Heads of court must by now be aware of this trend and stop this annoying practice of assigning cases on the same subject matter to different judges, who very likely would render conflicting decisions, ending up making the judiciary a laughing stock. Trial judges must also be on the lookout, and refrain from proceeding with any case when aware that his brother judge is handling a similar matter.”

Ali Modu Sheriff

Blogger’s Note:

The facts of the above case touching on the tussle for the leadership position (National Chairman) of the Appellant party, PDP, are very much in the public domain. We will not bother with that here save to mention that after much controversy, the Supreme Court ousted the 1st Respondent from the position of the National Chairman. Continue reading Heads of court must prevent politicians from abuse of court process.

Judges must refrain from wearing their pride on their sleeves.

 

P.J.N. Azubuike Esq. v. The State, (2017) LPELR-42485(CA) p. 17, per Agbo, JCA:

“Judges must refrain from wearing their pride on their sleeves. They must show self-restraint even when they are uncomfortable with the language deployed by counsel or litigants appearing before them. It is however incumbent on them to uphold the dignity and authority of the court. In the instant case, there was nothing before the court to activate its jurisdiction to summarily convict for contempt.”

Blogger’s Note:

The facts of the above case are quite interesting. They present us with one of those unfortunate instances where a Judge like Hon. Justice A.O.H. Ukachukwu (Rtd.) is found abusing judicial powers thoughtlessly, bearing in mind that there would hardly be any consequence other than perhaps, a criticism by an appellate court. Continue reading Judges must refrain from wearing their pride on their sleeves.

World of recent and rare Nigerian judicial authorities…