It is now well settled that in determining the jurisdiction of the Federal High Court, both the status of the parties and the subject matter must be considered.

John Shoy Int’l Ltd. v. F.H.A. [2016] 14 NWLR (Pt. 1533) 427 at 456-457, paras. G-B, per Nweze, JSC:

“Now, from a conspectus of recent decisions, it would be correct to assert that this court has, now, taken the position that in considering the issue of the jurisdiction of the Federal High Court under section 251(1) (supra), both the status of the parties (that is, whether it is the Federal Government or any of its agencies) and the subject matter of the claim (that is, whether it relates to any of the enumerated items in the said section) have to be looked at.”

 

Blogger’s Note:

Interestingly, the apex court in finally laying the matter to rest, relied on and considered a host of previous decisions.

The facts of the above case are as follows:

The Appellant was awarded some building construction contracts by the Respondent, Federal Housing Authority (F.H.A.). A dispute subsequently arose as to the contract sum payable by the Respondent. The Appellant therefore filed an action against the Respondent at the High Court of the Federal Capital Territory. The trial Court entered Judgment in favour of the Appellant. The Respondent appealed to the Court of Appeal where it contended that as an agency of the Federal Government, the High Court of the FCT had no jurisdiction to try the case. The Court of Appeal allowed the appeal. An appeal by the Appellant to the Supreme Court was allowed based on the above stated position of the law. The apex Court concluded that the High Court of the FCT had jurisdiction to try the matter, being a case of simple contract. Contract is not one of the matters enumerated under Section 251(1) of the Constitution. It was immaterial even if the Respondent were to be a Federal Government agency.
Interestingly, the Supreme Court had the opportunity to pronounce on the status of the Respondent as to whether or not it is an agency of the Federal Government.

Continue reading It is now well settled that in determining the jurisdiction of the Federal High Court, both the status of the parties and the subject matter must be considered.

Every citizen of Nigeria has the right to protest on matters of public concern and no police permit is required!

IGP v. ANPP [2007] 18 NWLR (Pt. 1066) 457 at 498-499, per Adekeye, JCA (as he then was):

“The Public Order Act – relating to the issuance of police permit cannot be used as a camouflage to stifle the citizen’s fundamental rights in the course of maintaining law and order…. The constitutional power given to legislature to make laws cannot be used by way of condition to attain unconstitutional result. The power given to the Governor of a State to issue permit under Public Order Act cannot be used to attain unconstitutional result of deprivation of right to freedom of speech and freedom of assembly. The right to demonstrate and the right to protest on matters of public concern are rights which are in the public interest and that which individuals must possess, and which they should exercise without impediment as long as no wrongful act is done. If as speculated by law enforcement agents that breach of the peace would occur our criminal code has made adequate provisions for sanctions against breakdown of law and order so that the requirement of permit as a conditionality to holding meetings and rallies can no longer be justified in a democratic society. Finally, freedom of speech and freedom of assembly are part of democratic rights of every citizen of the republic; our legislature must guard these rights jealously as they are part of the foundation upon which the government itself rests.”

Blogger’s Note:

The learned Justice above relied on the position of the Supreme Court in the case A.G., Federation v. Abubakar [2007] 10 NWLR (Pt. 1041) 1 at 92-93 and Osadebey v. A.G., Bendel State (1991) SCNJ 102 at 218 in reaching the above sound conclusion.

The Court of Appeal has a duty to pronounce on other issues where it holds that the trial court lacked jurisdiction.

Katto v. Central Bank of Nigeria [1991] 9 NWLR (Pt. 214) 126 at 149, paras. G-H, per Akpata, JSC:

“Where a trial court after holding that it had jurisdiction proceeded to determine the matter before it and an intermediate Court of Appeal thinks the trial court lacked jurisdiction, the said intermediate court should in the alternative resolve the complaints in the appeal unless both counsel, particularly respondent’s counsel, concede that the trial court lacked jurisdiction in the matter. While the Supreme Court, being the final court of appeal, can afford not to pronounce on other issues placed before it where it finds that the trial court lacked jurisdiction, the Court of Appeal whose stance on jurisdiction may be faulted by the Supreme Court should not ignore other issues raised in the appeal. It should pronounce on them.”

Blogger’s Note:

The above dictum was restated in NIPOL Ltd. v. Bioku Investments & Prop. Co. Ltd. [1992] 3 NWLR (Pt. 232) 727 at 747, per Akpata, JSC. See also Olagbenro v. Olayiwola [2014] 17 NWLR (Pt.1436) 313 at 368-369 where the above decision was upheld by the Court of Appeal, per Uwa, JCA.

A document by which an action is statute-barred can be used to validate other claims.

Khatoun Ent. Ltd. v. United (Nig.) Textiles [2014] 18 NWLR (Pt. 1438) 1 at 24, paras. B-C, per Adefope-Okojie, JCA:

“…The fact that a case is barred by statute is no reason to discountenance the documents which the court relied upon in proving the bar from being used to validate other claims.

As the trial Judge held, what was barred is the right of action and not the documents by which the statute bar is proved.”

Blogger’s Note:

The basis for the above decision is that in a suit, there may be general heads of claim. While one of the claims may be statute-barred, the others may not be. Therefore, the Court has the power to decline jurisdiction over the statute-barred claim but rightly assume jurisdiction over the others.
More so, a particular piece of document can be validly used to prove more than one claim. So, if upon perusing the document, the Court finds that a particular claim is statute-barred, it does not prevent the Court to use the same document to consider other claims which are not statute-barred.

Where a defence of limitation is raised and sustained, the proper order is one of dismissal.

N. P. A. Plc v. Lotus Plastics Ltd. [2005] 19 NWLR (Pt. 959) 158 at 189 paras. F-G, per Mohammed, JSC:

“Where a defendant raises a defence that the plaintiff’s action is statute barred and the defence is sustained by the trial court, the proper order for the trial court to make is an order of dismissal of the plaintiff’s action and not to merely strike it out.”

Blogger’s Note:

You can read the full Judgment online here.

The rationale for the above principle is not far-fetched. If the Court, upon finding that an action is statute-barred, proceeds to strike same out instead of dismissing it, this automatically gives the plaintiff the right to refile the suit. Therefore, a dismissal order (which does not allow for the refiling of a suit) is the proper order which can be appealed against instead of refiling the suit. Note, when a right of action is statute-barred, there is nothing that can remedy the situation so as to enable the plaintiff litigate on it.

Particulars of Ground of Appeal must not be set out separately.

Ministry for Works v. Tomas (Nig.) Ltd [2002] 2 NWLR (Pt. 752) 740 at 783, para G, per Musdapher, JCA:

“It is contended that grounds of appeal filed by the appellants are incompetent in that the first ground of appeal is deficient in the nature of the error and its particulars. I have myself examined the ground of appeal, the nature and particulars of the ground are embedded in the ground of appeal. There is no legal requirements that the particulars must be set out separately…”

Blogger’s Note:

You can read the full Judgment here.

While I consider the above decision as a good one because there is indeed no legal requirements that the particulars must be set out separately, it is pertinent to note that setting out the particulars separately and aptly makes for a good notice of appeal. This would also guide counsel in preparing the brief of arguments concisely and coherently.

Filing a Notice of Discontinuance after obtaining substantial advantage is an abuse of court process.

The Vessel “Saint Roland” v. Osinloye [1997] 4 NWLR (Pt. 500) 387 at 412 paras. B-D,  per Iguh, JSC:

“…It is a clear abuse of process to use the machinery of Notice of Discontinuance without leave to improve a plaintiff’s position unjustly. See Castanho v. Brown and Root, supra at 114-115. Similarly, filing a Notice of Discontinuance immediately after obtaining substantial interim advantages or some unjust enrichment in a suit to the prejudice of the defendant constitutes an abuse of process. Such interim advantage may include securing unjustifiable substantial payments in the suit just before filing the Notice to the detriment of the defendant…”

Blogger’s Note:

The full Judgment is available on this link.

The above principle is quite necessary because justice in a case is both for the plaintiff and defendant, as well as for the court. So, where a Notice of Discontinuance was filed upon obtaining substantial advantage, it is only proper that the trial court should exercise its discretion in the matter by discountenancing the Notice or allowing same based on terms as may be considered just. The court must not be used as a vehicle to achieve unjust means.

A respondent can file a counter-affidavit and a preliminary objection to the same motion.

Honeywell Flour Mills Plc v. Ecobank (Nig.) Ltd [2016] 16 NWLR (Pt. 1539) 387 at 433, paras E-G, per Oseji, J.C.A.:

“…A respondent who is served a motion on notice and intends to oppose it [will] of necessity file a counter-affidavit and a written address where applicable to justify the fact that he is opposing the prayers sought in the applicant’s motion. This does not however stop him from filing another application by way of preliminary objection to have the same motion struck out for reason of one defect or the other. It is akin to a defendant filing a statement of defence and also filing an application to have the suit dismissed or struck out for being incompetent and at the appellate level a respondent served with a notice of appeal and brief of argument has the freedom to file a respondent’s brief of argument and at the same time file a notice of preliminary objection to dismiss the same appeal for whatever grounds he deems justifiable.”

Blogger’s Note:

You can read the full Judgment online here.

 

In one breath, one may be compelled to reason that the grounds for challenging the motion may very well be included in the written address in support of the counter-affidavit filed in opposition to the motion. The preliminary objection may be raised in the address as a preliminary issue. This will enable the court to rule on all the issues at once and save the time for taking separate arguments and delivering separate rulings. After all, it has been held that a preliminary objection is essentially a motion (See Anibaba v. Badejo [2013] 5 NWLR (Pt. 1346) 42). It follows that you cannot file a motion to a motion. Just like you cannot file a preliminary objection to a preliminary objection. See Manson v. Halliburton [2007] 2 NWLR (Pt.1018) 211.

A letter written by a lawyer in the course of his duties to his client cannot be defamatory.

Mamman v. Salaudeen [2005] 13 NWLR (Pt. 958) 478 at 507-508, paras. H-C, Onnoghen J.S.C.:

 
“There is no doubt that exhibit “6” is a letter by a solicitor in the course of his duties to his client. The law is that such a letter cannot be defamatory since it is written on a privileged occasion. See Boxsius v. Goblet (1891) 4 All E.R. 117 at 118 where Kopes (sic) L.J. stated thus:
‘For the proposals of the present case I am prepared to lay down this rule: that, if a communication made by a solicitor to a third party is reasonably necessary and usual in the discharge of his duty to his client, and in the interest of his client, the occasion is privileged.'”
See also Jegede v. Akande [2014] 16 NWLR (Pt. 1432) 43 at 87.

Blogger’s Note:

The full Judgment is available here.

A closer look at the rule set down by Kopes, L.J. would reveal that it is not every letter written by a lawyer in the course of his legal duties to his client that is privileged. The rule requires that the communication must be reasonably necessary and usual in the discharge of his duties, and in the interest of his client. In other words, if the communication is not reasonably necessary (even being merely necessary may not suffice) and was not in the usual discharge of his duties (that is, for other personal purposes) and was not in the interest of his client (a lawyer should naturally act in his client’s interest), then the communication may not be privileged as the lawyer may be liable to a claim in defamation.