Exceptions to the ‘Suo Motu’ procedure

Gbagbarigha v. Toruemi [2013] 6 NWLR (Pt. 1350) 289 at 310, paras. C-G, per Rhodes-Vivour, J.S.C.:

“When a Judge raises an issue on his own motion, or raises an issue not in the contemplation of the parties; or an issue not before the court, the Judge is said to have raised the issue suo motu. The well laid down position of the law is that when an issue is raised suo motu the parties should be heard before a decision is reached on the issue. This is what procedural fairness entails… but there is an exception to this procedure. There would be no need to call on counsel to address the court on an issue raised suo motu by the Judge –
1. When the issue relates to the courts own jurisdiction;
2. When both parties are not aware or ignored a statute which may have bearing on the case; or
3. When on the face of the record serious questions of the fairness of the proceedings is evident…”

Blogger’s Note:

Although Judges are said to know the law, however, even in the face of the above exceptions, it must always be borne in mind that addresses of counsel is always helpful in assisting the Judge in making a decision.

Failure to move preliminary objection to an appeal during the hearing of the appeal is fatal.

N. D. P. v. I. N. E. C. [2013] 6 NWLR (Pt. 1350) 392 at 412, paras. D-G, per Ariwoola, J.S.C.:

“It is pertinent to refer to the notice of preliminary objection given by the respondent on page 4 of its brief of argument. It is equally apposite to say that the said preliminary objection was not moved before this court though argued, hence same was deemed abandoned and liable to be discountenanced. It should be noted that the preliminary objection raised by the respondent in its brief of argument cannot be deemed argued along with the brief.

This is because the respondent is required to specifically seek leave of court and obtain same when the appeal is being heard, to move its objection. Therefore, the respondent not having been available to seek leave and obtain same to argue its preliminary objection, same is of no moment. It is deemed abandoned and liable to be struck out… Accordingly, the notice of preliminary objection incorporated in the respondent’s brief of argument is hereby discountenanced and struck out.”

Blogger’s Note:

I consider the above position of the law as needlessly harsh. The Supreme Court as well as the Court of Appeal should be diligent enough to consider all relevant issues (such as a preliminary objection) raised in a respondent’s brief. After all, even in the absence of oral adumbration, a written brief of argument can be argued or deemed argued in the absence of counsel. The Supreme Court should review its stands on the above position in the interest of justice.

 

Where an appeal is wrongly headed, it does not affect the hearing of the appeal.

Registered Trustees, A. O. N. v. N.A.M.A. [2014] 8 NWLR (Pt. 1408) 1 at 30 paras. G-H, per Okoro, J.S.C.:

 
“I must say that the respondent herein as appellant at the court below may have goofed when it decided to use the name of the appellant herein as originally and inappropriately used at the trial court before the amendment. But was that fatal to the appeal? I do not think so. It is trite that an appeal is a continuation of the case from the court below. It does not initiate a fresh case. As it were, the parties were not in doubt as to the parties to the appeal. Where parties to an appeal are not in doubt but the appeal is wrongly headed, as was done at the court below, it cannot affect the competency of the court to hear the appeal on its merit…”

Blogger’s Note:

This is a good decision which further supports the idea that undue technicalities does not meet the ends of justice.

 

Special damages must be strictly proved; it is not enough that the evidence was unchallenged.

MTN Nigeria Communications Ltd v. A.C.F.S. Ltd [2016] 1 NWLR (Pt. 1493) 339 at 357 para A, per Bada, JCA:

 
“Although an unchallenged evidence ought to be believed by the court and relied upon, however, in matters of special damages, the fact that evidence is unchallenged does not mean that the court must rely on it as proof of special damage. The special damages must be specially and strictly proved by the plaintiff.”

Blogger’s Note:

The above principle has good legal basis. Ordinarily, special damages do not require or depend on the discretion of the court as in general damages. Naturally, any item of special damages, if proved by concrete evidence, would be granted by the court. Therefore, it is only necessary that the claimant should not rely on the fact that the claim is unchallenged but should proceed to prove same.

An arbitration clause in a commercial contract cannot hinder investigation of crime.

Danfulani v. E.F.C.C. [2016] 1 NWLR (Pt. 1493) 223 at 246 paras. C-D, per Adefope-Okojie, J.C.A.:

 
“I am in agreement with the 3rd Respondent that were a crime has been committed or suspected, an arbitration clause in a commercial contract may not be held to bind the aggrieved party. The lower court, I accordingly hold, stood on firm footing to have held that the 3rd Respondent had a right to make the complaint to the 1st Respondent.”

Blogger’s Note:

The above principle is understandable. Investigation of crime and subsequent prosecution of same is within the realm of criminal law and not subject to agreement of parties.

 

A Statement of Claim not signed by a legal practitioner is incompetent but does not affect the Writ of Summons duly signed.

Hamzat v. Sanni [2015] 5 NWLR (Pt. 1453) 486 at 505-506 paras. H-C, per Ariwoola, JSC:

 
“…The Statement of Claim upon which the evidence relied upon by the trial court was based having been signed by a person not known to law as a legal practitioner, as required by our law, is incompetent, it deserves to be discountenanced and struck out. However, because the Writ of Summons by which the action was commenced and which originated the action was properly signed by a legal practitioner as prescribed by our law, it remains valid and can still be built upon as a solid foundation. It is the Statement of Claim upon which evidence was based that cannot stand. Indeed as the saying goes, you cannot put something on nothing and expect it to stay, it will fall. Evidence led in the case based on incompetent Statement of Claim is also incompetent and should be discountenanced and struck out.”

 

Blogger’s Note:

You can read the full Judgment here.

A statement of claim is not an originating process. It is a pleading. Although frontloaded along with the writ of summons in compliance with the rules of court, the statement of claim remains a separate court process from the writ of summons. An irregular or defective statement of claim must go down alone (or along with any evidence led in reliance), leaving the competent writ of summons.

A court cannot order stay of execution of garnishee order absolute.

Zenith Bank Plc. v. John [2015] 7 NWLR (Pt. 1458) 393 at 423, paras. C-G, per Peter-Odili, J.S.C.:

“…[There] is thrown up a fundamental matter of this court being called upon to make an order affecting a Garnishee Order Absolute against which there is no appeal. It is stating the obvious that a Garnishee Order Absolute means an executed judgment and being a completed act, one wonders how an order of stay can either be ordered or carried out…
Also to be placed on record, is the fact that the Garnishee Order Absolute against the Central Bank of Nigeria was made by the Federal High Court and it was not appealed against to the Court of Appeal, therefore, what is being asked of the Supreme Court of the present application is for this court to sit on appeal over a matter directly from the High Court, the power to do so has yet to be revealed as I cannot see the vires for such procedure…”
See Muhammad, J.S.C. at p.426-427 paras. H-B:
 
“The underlining principle that must inform our decision in this matter is that an injunction or stay does not proceed against a completed event. The order the applicant herein seeks to stay is a Garnishee Order Absolute which by its very tenor denotes that execution has already been levied against the property to which the order being sought relates. The money, with the Garnishee Order being made absolute, becomes wholly attached.”

Blogger’s Note:

You can read the full Judgment here.

The above decision and the reasons supplied by the apex Court is apt.

A court can set aside the judgment of another court of concurrent or co-ordinate jurisdiction.

Nen Ltd. v. Asiogu [2008] 14 NWLR (Pt. 1108) 582 at 593 paras. B-C, per Galadima, JCA:

“There are certain situations where a court of concurrent or co-ordinate jurisdiction can set aside the judgment or order of another court and such circumstances include where the writ or application was not served on the other party, or where the action is tainted with fraud or where the court lacks jurisdiction to entertain the action or is affected by debilitating defects that go to the root of jurisdiction.”

 

Blogger’s Note:

The rationale for the above decision is that service of court process, fraud and jurisdictional issues are issues the courts consider quite fundamental. Therefore, a court can set aside the judgment of another court of equal powers based on these grounds.

 

In applying the above principle, one must bear in mind that it is only appropriate for the special jurisdiction of certain courts to be considered. For instance, the National Industrial Court of Nigeria, Federal High Court and High Court of States have concurrent jurisdiction. To my mind, it would be improper to approach a Lagos High Court to set aside the Judgment of the National Industrial Court or Federal High Court even on those grounds.

 

A litigant has a duty to monitor the progress of his case

N. A. C. B. LTD. v. Ozoemelam [2016] 9 NWLR (Pt. 1517) 376 at 407-408, paras. H-A, per Ngwuta JSC:


“Again, the appellants were not only indolent but treated the matter in court in which they were involved as defendants with utter contempt. A person with a case in court, either as plaintiff or as defendant, can ill-afford the luxury of defiant complacency, and expect that miracles will take place to protect his interest at stake in litigation. It is in the interest of a party to check the Registry of the court if nothing has been heard after a reasonable lapse of time for the current status of the case. In the circumstance, I believe it is a gross abuse and insult to the court for the appellant to slumber comfortably for 18 months after delivery of the judgment against it and then ask that same be set aside.”

Blogger’s Note:

It is important that litigants should take heed of the above position of the law by ensuring that they follow up their cases in court by demanding for periodic updates from their legal representatives. This would cushion the effect of any pathetic development like we saw in the above case. It is bad to brief a lawyer about a case and then proceed to sleep all through.

Decisions of the National Industrial Court not generally appealable to the Court of Appeal as of right.

Governing Board, RUGIPOLY, Ondo State v. Ola [2016] 16 NWLR (Pt. 1537) 1 at 24, paras H-D:

“By section 243(2) and (3) of the Constitution, appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental right as contained in Chapter IV of the Constitution on matters upon which the National Industrial Court has jurisdiction. An appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be laid down or allowed by an Act of the National Assembly. On the condition that an Act or Law lays down or allows that an appeal shall lie from the decision of the National Industrial Court to the Court of Appeal such appeal shall be with the leave of the Court of Appeal not even with leave of the National Industrial Court. For now there is no Act of the National Assembly allowing appeal from the decision of the National Industrial Court to the Court of Appeal on any other question…”

Blogger’s Note:

The above case appears to be the most recent on the subject and so remains the authority on the point.

See also the conflicting case of Local Government Service Commission, Ekiti State & Anor. v Bamisaye  (2013) LPELR-20407(CA).

You may read the articles titled: Non-Appealable Decisions of the National Industrial Court of Nigeria: A Critical Analysis and also Right of Appeal at the National Industrial Court of Nigeria: A Mirage or a Reality.