All posts by Stephen Azubuike

Stephen Azubuike is a Legal Practitioner, Consultant and Blogger. He is a Senior Associate working with Dr. Abiodun I. Layonu (SAN), FCIArb and is a key member of the Dispute Resolution and Commercial Law Practice Group at Layonu & Co. He obtained his Bachelor of Laws Degree (as an Elf/Total Scholar) from the University of Benin, graduating as one of the best students in his class. He further obtained a Master of Laws Degree from University of Lagos shortly after being called to the Nigerian Bar as a Solicitor and Advocate of the Supreme Court of Nigeria. In addition to his academic degrees, Stephen has certificate trainings in Mediation, Mediation Advocacy and Insolvency Practice. He is a published scholar and a seasoned advocate.

A student who sits for an examination or completes a course of study has a right to know the result.

Unilorin v. Rasheedat Adesina [2014] 10 NWLR (Pt. 1414) 159 at 175-176, paras. H-A, Aka’ahs, JSC:

“The respondent was entitled to know the outcome of her examinations. It is the practice the world over that where a student sits for an examination or completes a course he or she is entitled to know the outcome of that examination. It therefore beats my imagination why the appellant refused to release the respondent’s result on the flimsy excuse that she failed a core course and so the appellant had no obligation to release a non-existent result. It was an unnecessary show of power for the University to turn deaf ear to the respondent’s entreaties to release the results.”

Blogger’s Note:

In the above case, there was a demonstration by students of the University of Ilorin. Upon an investigation carried out by a committee set up by the School, the  Respondent and other students were indicted and referred to the disciplinary committee, and subsequently rusticated. Prior to her rustication, the Respondent had sued the Appellant and obtained an interim order of injunction restraining the School from commencing disciplinary proceedings against her. The Appellant appealed against the order. It was during the pendency of the appeal that the Visitor (the Nigerian President at the time) intervened, following which a panel was set up to resolve issues pertaining to politically victimised and rusticated students. The Panel’s resolution led to a recall of the Respondent by the School after she had written a letter of apology and paid a fine. Unfortunately, in spite of her recall, the Respondent’s results were never released. As a result, the Respondent returned to the court, seeking the release of her results. The Appellant challenged the jurisdiction of the Court on the ground that the issue of release of result (which it argued was same as award of degree) was a domestic affair which the Court cannot dabble into. The trial Court overruled the objection and delivered Judgment in favour of the Respondent. The Appellant’s appeal to the Court of Appeal and the Supreme Court was unanimously dismissed.

The Supreme Court noted that there is a vast difference between release of results and award of degree. Rhodes-Vivour, JSC reasoned: “A student who takes part in an examination is entitled to see his results. Refusal to release results is not strictly a domestic issue. Refusal to release result with no reason for the refusal raises issue of breach of civil rights and obligation, denial of fair hearing which are all justiciable. Such a refusal is no longer within the confines of domestic affairs of the University. The courts have jurisdiction to examine such matters. On the other hand, the refusal to award degree cannot be questioned by the courts. This is within the exclusive province of the university.” See page 177, paras. D-G of the report.

We must quickly point out that the last statement by Rhodes-Vivour, JSC above, that is,  “On the other hand, the refusal to award degree cannot be questioned by the courts. This is within the exclusive province of the university”, is at best, a general rule. There are exceptions one of which is that “where a student has exhausted all avenues and entreaties, and the university is adamant…, the student is entitled to approach the court for redress.” See Okoro, JSC at page 178, paras B-C of the report.

See also the Judgment of the Supreme Court in Unilorin v. Akinola [2014] 12 NWLR (Pt. 1422) 435, a case with similar facts as in above, wherein the appellant sought a release of his result and academic Degree. The Supreme Court held that in deserving circumstances such as where all avenues and entreaties have been exhausted, the court can interfere with the powers of the University to award degrees.

Unfortunately, in both cases, the University still moved to punish the students even after the Presidential Committee set up had resolved issues and the students wrote written apologies which were accepted by the School. In heavily criticising the University, Peter-Odili, JSC in Unilorin v. Akinola (supra) said: “The situation is akin to sending the respondent on a mission to buy salt and on getting the salt, finds himself drenched by rain which the appellant sent. That is give with the right hand and take back with the left, a visitation on a student which ought not to be associated with the University or Ivory Tower as colloquially called or citadel of learning and character formation.” See page 460, paras. E-G of the report.

Our universities must endeavour to accept and recognise the fact that students have the right to protest against any perceived injustices. The idea of intimidating the students and victimising them by all kinds of threats and punishments must stop. In a decent society, there should be in place, a proper mechanism for the resolution of grievances and agitations by students. On the other hand, students must be able to properly coordinate their protests to avoid unnecessary breakdown of law and order.

By the way, why do Nigerian universities always pursue cases involving students up to the Supreme Court in needless appeals??

A suit dismissed for want of diligence may never be relisted. Beware!

Banna v. Telepower (Nig.) Ltd. [2006] 15 NWLR (Pt. 1001) 198 at 220, paras. F-G, per Tobi, JSC (of blessed memory):

“A plaintiff has not only a right to file an action in court to redress a wrong done him by a defendant; he also has a duty to prosecute the matter to conclusion within the rules of court. Of course, the duty is not mandatory, compulsory or sacrosanct, as he can decide not to prosecute. A plaintiff who files an action in court and exhibits some indolence and nonchalance has himself to blame. After all, he brought the defendant to court and if he decides not to pursue the case diligently, the court has no option than to either strike out or dismiss the matter, depending on the enabling rules of court.”

Mukhtar, JSC (retired) at p. 225, para. G:

“…Indeed, justice is supposed to be for both sides, and not only the convenience of one side. I am in full agreement with the above reasoning of the learned trial Judge. The learned trial Judge dismissed the action under the correct and proper rule, and was right in refusing to relist it…”

Blogger’s Note:

In the above cited case, the Respondent (as Plaintiff) before the trial Judge filed an action in 1993 against the Appellant. The matter was severally adjourned for hearing but on each occasion, the Respondent and its Counsel were absent in Court. On the fifth occasion in 1995, the trial Judge dismissed the suit for want of diligent prosecution. The Respondent thereafter filed an application seeking to relist the suit. The learned trial Judge dismissed the application on the ground that the excuse offered for the absence of the Respondent and its Counsel was unsatisfactory. The Respondent appealed to the Court of Appeal which allowed the appeal, holding that although the conduct of the Respondent was condemnable, the trial Judge ought to have merely struck out the suit instead of dismissing it; and also, the trial Court ought to have relisted the suit. The Appellant’s appeal to the Supreme Court was unanimously allowed. The apex Court disagreed with the Court of Appeal who, according to the Court, preferred to tow the line of sympathy. The Supreme Court held that, having failed to find the reasoning and exercise of discretion by the learned trial Judge as unjustified, the Court of Appeal ought not to overrule the trial Judge.  The Court re-emphasised the need to treat with respect the exercise of discretion by the trial court. According to Tobi, JSC (of blessed memory), “as long as the discretionary power is exercised judicially and judiciously, an appellate court cannot interfere by show of appellate power.” See page 221, paras. F-G of the report.

The Supreme Court further took time to criticize the use of tricks in litigation. According to Mukhtar, JSC (retired), “just as much as there is a saying that there must be an end to litigation, I will add here that there must also be an end to playing pranks, wasting the courts’ time.” See pp 224-225, paras. H-A. “Tricks have no place in the judicial process and so why play them?” asked Tobi, JSC at page 218, para. D.

Interestingly, the Federal High Court, Lagos Division, per Buba J., in a recent Ruling delivered on 15th of March, 2017 in Suit No. FHC/L/CS/314/13 – Arkville Chemical Co. Ltd. v. Deputy Sheriff, Federal High Court & Ors (Unreported) dismissed an application to relist a suit which suit he had earlier dismissed on ground of want of diligence, relying heavily on the case of Banna v. Telepower (supra). Learned Senior Counsel for the Plaintiff tried to persuade the learned trial Judge but the Judge was resolute and unmoved. He held that the Plaintiff was playing games but that the game was up.

Statutory corporations and organisations have a duty to treat their pensioners humanely.

 

C.B.N. v. Amao [2010] 16 NWLR (Pt. 1219) 271 at 307, paras. C-H, per Onnoghen, JSC (now CJN):

“It is rather unfortunate that the efforts of the Federal Government to put smile on the faces of the pensioners of the appellant so as to alleviate their sufferings having regards to the harsh economic realities of this country have been almost frustrated by arguments on legal technicalities whilst the people continue to suffer year in year out. It is disturbing because the people involved are senior citizens of this country who have contributed their quota to the development of the nation during their prime, but look at the way an organisation like the appellant is treating them… It is important for every organisation in this country, including the appellant, to wear a human face in its treatment of the people, particularly the senior citizens, because it will be anybody’s turn tomorrow to be a senior citizen. We must re-examine our attitude towards the senior citizens of this country so as not to make them regret their sacrifice for the nation in whatever capacity. The respondents need not be put to the expenses of litigating this matter in the first place let alone all the way to the Supreme Court.”

Blogger’s Note:

Before we comment on the video above, what happened in the above cited case was that the Appellant refused to pay pension to the Respondents in accordance with the then Federal Government harmonised pension scheme which was drawn following a report by a panel on civil service reform  set up by the Federal Government. Aggrieved, the Respondents sued the Appellant at the Federal High Court. The Appellant’s appeal up to the Supreme Court was unanimously dismissed. Read full Judgment here.

Now, the above video (exclusively recorded by SLB today, 15 March, 2017), shows some aggrieved retirees of the Nigerian Ports Authority staging an organised protest over their unpaid pension arears. Read a fuller report here.

Indeed, every citizen including pensioners has a right to protest publicly. It is our expectation that the NPA would hearken to their voices and take note of the notable pronouncement by Onnoghen, CJN above.

Extras: You may read “Understanding the Impact of Pension Reforms in Nigeria“. Download the Pension Reform Act 2014.

 

 

Complaint by the Nigerian Bar Association against a lawyer before the LPDC cannot be withdrawn.

 

NBA v. Henkyaa [2016] 11 (Pt. 1522) 164 at 173-174, paras. G-C, per Daudu, SAN:

“Dealing with the purported withdrawal of the complaint, we reaffirm our position that applying to withdraw a petition at this stage is akin to bolting the stable gates after the horse has escaped. This is because the petition has undergone a process recognised and prescribed by the Legal Practitioners Disciplinary Committee Rules, 2006 in that it has been investigated and a complaint by a professional body drafted therefrom. Thus, the petition is no longer before us but the complaint by the NBA. The NBA knows too well that once a complaint is filed on behalf of the profession it cannot be withdrawn except in very clear exceptional circumstances such as the death of the respondent or the disclosure of new facts that render the complaint academic, irrelevant or unlawful. None of those circumstances are available here and we cannot consider the said purported withdrawal of the petition as extenuating circumstances in this matter.”

Blogger’s Note:

In the above case, the Respondent (a legal practitioner) sealed off a certain premises occupied by Midag Hotels Nig. Ltd without a proper order of court. He did this on behalf of his client, Benue State Government, who had instructed him to take over and manage all her properties in Lagos including the subject property.

In reaction, Midag Hotels caused a petition to be written by its solicitors to the Nigerian Bar Association (NBA) challenging the act of the Respondent. The NBA considered the petition and the accompanying documents including photos of the Respondent sealing off the premises and concluded that a prima facie case was disclosed in the petition. Consequently, the NBA filed a Complaint at the Legal Practitioners Disciplinary Committee of the Body of Benchers (LPDC). During the pendency of the Complaint before the LPDC, the petitioner sought to withdraw the petition. However, the LPDC would have none of that. In delivering the Direction of the Committee, Daudu, SAN found that the Respondent was in flagrant breach of the Rules of Professional Conduct, 2007 and that unfortunately, the Complaint cannot be withdrawn. The Respondent was suspended from legal practice for 12 months in consideration of his admission of his wrongful act and plea for leniency.

NB: It appears that if any withdrawal of a petition is intended, perhaps it must be attempted before the NBA files a formal complaint before the LPDC.

The rationale for the above position of the LPDC is not far-fetched. The legal profession is a noble one and the ethical standards are extremely high. In the case of Ativie v. Kabelmetal (Nig.) Ltd. [2008] 10 NWLR (Pt. 1095) 399 at 425, para. G, Onnoghen, JSC (now CJN) held: “The standard of legal practice in this country is very high and counsel are advised to either retain it at that high level or raise it higher, they are definitely not to lower it under any guise.”

A lawyer has a duty not to use offensive and insulting language on the court – Notable pronouncement by Sankey, JCA.

Maitumbi v. Baraya [2017] 2 NWLR (Pt. 1550) 347 at 409-410, paras. B-G, per Sankey, JCA:

“One last word before I am done. It is quite disheartening to note the brazen, insalubrious and un-warranted attack on this court by learned counsel for the appellants when referring to this court’s previous finding in the unreported case of Mamman v. Bwacha (supra). With due respect to counsel, it was distasteful and odious, and an action totally inappropriate and unbecoming of a member of this noble and decent profession. It is my view that even where counsel finds himself unable to agree with the findings of a court, it is only decent, polite and cultured, (to say the least), that he should use the power of persuasive/convincing arguments to make his point in the discharge of his duty to his client, while also balancing this with his role as a Minister in the hallowed temple of justice. It is however not expected that counsel should descend into abysmal depths to the extent of directing disrespectful and obnoxious language against the court… Hence, I decline the attempt by counsel to drag the court down from its lofty height to join in the dust of the battle, which, (counsel are at all times enjoined to keep in mind), is really between the opposing litigants, and not between counsel and the Bench, or even between opposing counsel. I therefore strongly deplore and deprecate the inclination by a few in this noble and dignified profession to blissfully and wittingly slide into the slime of the gutter (as it were) by use of offensive and base language. This court chooses to retain its serene position high above the arena of combat as an impartial and detached umpire/adjudicator, and remain in the corridor of professionalism, hard facts and cold law. It is not and should never be personal. Instead, it is a matter of cold clinical facts and the application of the law to same. Civility in spoken and written language is a lubricant that prevents law suits from degenerating into combat, and by which the participants emerge from our adversarial process without blisters and swollen faces. It is well for counsel to bear in mind that in a brief of argument, the author x-rays himself by his use of language and leaves same for present and future generations unborn. Distasteful use of language merely and needlessly distracts from the issues in contention. Offensive language does not improve advocacy, rather it destroys it. Insulting language also tells so much about the character of counsel. Judges are not happy with such language…”

Blogger’s Note:

The learned Justice of the Court of Appeal ended the above by saying that a word is enough for the wise. I agree.

Now, what happened in the above case was that an Election Petition filed at the National and State Houses of Assembly Election Tribunal of Taraba State was signed by an unindicated solicitor among named solicitors on behalf of the Appellants. The Election Tribunal struck out the Petition. The Appellants appealed.  In persuading the Court of Appeal to uphold the decision of  the Election Tribunal, the Respondents relied on the unreported case of Mamman v. Bwacha CA/YL/EPT/SEN/45/2015  where it was held (by the same Sankey, JCA) that the petition in that case was incompetent because it was signed by a person simply referred to as “Petitioner” without more; also, there were two petitioners and the signature didn’t indicate which of the unnamed “petitioners” signed.  The Appellants herein in response to the Respondents’ arguments called upon the Court of Appeal to overrule its decision in Mamman v. Bwacha. In making the call, the Appellants’ Counsel used what the Court found as offensive language. Sankey, JCA refused to answer the call and brilliantly distinguished the cases. The Court held that in the instant case, the solicitors were properly named and that there is a presumption that one of the named solicitors signed. It is left for the Respondents to rebut the presumption which they failed to do. (Read the Court’s holding in our earlier post). Interestingly, the learned Justice of the Court of Appeal allowed the Appeal of the Appellants notwithstanding the said use of offensive and insulting language.

May we use this opportunity to add here that while counsel must desist from use of offensive language, the Court must heed the advice too. We have seen some cases where courts address counsel with so much disrespect. Respect and honour must be preserved in the legal profession.

Again, the pronouncement of Sankey, JCA and his ultimate decision in the case is highly commendable.

Failure to indicate the particular counsel who signed a court process where more than one name appeared is not fatal.

Maitumbi v. Baraya [2017] 2 NWLR (Pt. 1550) 347 at 394, paras. C-E, per Sankey, JCA:

“On the authority of INEC v. Oshiomole [2009] 4 NWLR (Pt. 1132) 607, it was incumbent upon the 1st respondent who contested the ownership of the signature (and not the petitioners) to prove his assertion that the signature on the petition did not belong to anyone of the solicitors named at the foot of the petition. Clearly from the above affidavit evidence, the applicant (1st respondent) did not come even close to discharging the onus of proof in this regard. Therefore, it is safe to assume that the signature atop the names of the three solicitors named at the foot of the petition was affixed by one of the petitioners’ named solicitors…”

Blogger’s Note:

The position of the Court in the above case is commended. Indeed, the courts should not sustain such technical objections like that of the 1st Respondent in the case. In fact, in this era of NBA stamp and seal, the affixing of a counsel’s stamp and seal goes to show the actual counsel who signed the court process provided that his name is among the names appearing below the signature on the process. However, counsel are encouraged to always make the necessary indication. Sankey, JCA at page 394, paras. F-H admonished as follows: “Nonetheless, it must be stated that it is not good practice which is encouraged by the court for counsel signing any court process, (and even more so, election petitions), to fail to indicate who, (from a list of solicitors named in the process), appended his signature thereto. It is evident that, while this court has in such cases attributed the failure to indicate the actual name of the solicitor who appended his signature on a petition as not being fatal but a technicality which should not defeat the ends of justice, that is not to say that it should be the norm…”

A Court has a duty not to impose light sentence for the offence of rape.

Posu v. State [2011] 2 NWLR (Pt. 1234) 393 at 418, paras. A-B, per Adekeye, JSC:

“The purpose of the criminal law is to prevent harm to the society. The offence of rape is by every standard a grave offence which often leaves the victim traumatised and dehumanised. A light sentence as in the case of the appellants must never be imposed. This may have the unsavoury effect of turning rape into a past-time by our flippant youths.”

Rhodes-vivour, JSC at p. 420, paras. A-B:

“The prosecutrix suffered an ordeal that was the stuff of nightmares. A ferocious and indiscriminate attack by two callous, wicked men. To my mind where, as in this case there is overwhelming compelling evidence that two men took turns to rape a defenseless young girl in degrading and horrific circumstances, I think the appellants should forfeit their place in a decent society for a much longer period. Three years in prison cannot be adequate for such an act.”

Blogger’s Note:

In the case, the Appellants were charged at the High Court of Ogun State on a two-count charge of conspiracy to commit a felony (rape), and rape. They were found guilty of the offences and were accordingly convicted and sentenced – 1 year imprisonment for conspiracy to commit rape; and 3 years imprisonment for rape itself. The Appellants’ appeal up to the Supreme Court was dismissed. The Supreme Court was however not satisfied with the 3 years sentence for the offence of rape bearing in mind that section 358 of the Criminal Code Law of Ogun State provides for possible sentence of life imprisonment. Although the trial Court was not bound to sentence the Appellants to life imprisonment, the trial Court had the discretion to sentence them for more number of years instead of the 3 years pronounced. Rhodes-Vivour, JSC was of the view that since there was no cross-appeal, there was nothing that could be done on what he described as “strange sentence”.

I agree that the Appellants deserved more! Indeed persons found guilty of rape should be severely punished. You may read some views expressed here.

A court cannot insist that a particular counsel in a chambers must conduct a case.

Ceekay Traders Ltd. v. General Motors Co. Ltd. [1992] 2 NWLR (Pt. 222) 132 at 163, paras. E-F, Olatawura, JSC:

“With the development in legal practice, legal practitioners frequently enter into partnerships. In each Chambers there are many practitioners. A litigant may brief one of the partners, but the Chambers is responsible for the conduct of the cases once the brief is accepted. It is the practice, depending on the nature of the case, in busy Chambers for three or four counsel to represent a party at the beginning of the trial. One may begin with the examination of witnesses, another take on the cross-examination of witnesses. Sometimes, the leading counsel may simply announce his appearance and then inform the court who will conduct the case. All these are designed to show the internal arrangements of the Chambers. The Judge is not entitled to insist on a particular counsel in the team to conduct the case. Whoever appeared a day before may not necessarily appear the following day. As long as the party is not left without a counsel, the court is not to interfere with the internal arrangement of the Chambers. “

Blogger’s Note:

In the case, the Appellant had severally asked for an adjournment at the trial Court through different counsel (but all from the same Chambers). On a certain date, the Appellant again asked for an adjournment but the application was opposed by the 1st Respondent who urged the Court to dismiss the suit. The trial Court refused the application for adjournment and thereafter dismissed the suit. The Court of Appeal in dismissing the appeal lodged, appeared to have had a problem  with the fact that the applications for adjournment had been tabled by different counsel from the same Chambers, when it observed that one of the counsel from the Chambers “conveniently stayed away” to allow another counsel appear to seek for another adjournment. The Supreme Court found it compelling to make ineffectual that observation and holding especially as same was made a ground of appeal at the Supreme Court. Olatawura, JSC aptly clarified the point when it made the pronouncement quoted above.

More so, the Supreme Court in the above case clearly endorsed the routine practice of many legal practitioners from the same Chambers as it relates to cooperation (which the Court described as change of baton like in a relay race) and thereafter rightly stressed the point that courts have no business interfering with the internal arrangements of law Chambers. Continue reading A court cannot insist that a particular counsel in a chambers must conduct a case.

Continuous absence of counsel in a case amounts to obstruction of the cause of justice and therefore contempt of court.

Mfa v. Inongha [2014] 4 NWLR (Pt. 1397) 343 at 369, paras. C-D, per Ngwuta, JSC:

“Also, continuous absence of counsel in a case he is handling as shown in the record of the trial court amounts to obstruction of the cause of justice and therefore contempt of court.”

Blogger’s Note:

The learned Justice of the Supreme Court in making the above pronouncement relied on the cases of McKown v. R (1971) 16 DLR 390 and Izuora v. R (1953) 13 WACA 313.

Indeed, it is equally unethical for a counsel, as a minister in the temple of justice, to engage in any form of conduct that interferes with the wheel of justice.

The above case bordering on land tussle (between a father and his sons) had a chequered history. The records showed that the Appellants and their counsel were repeatedly absent at the trial court. Consequently, the learned trial Judge closed their case on the prompting  of the Respondent after the Respondent had himself closed his case, and adjourned for judgment. The Appellants thereafter applied for leave to reopen their case. Leave was granted. The Appellants further applied that the matter be transferred to another Judge on the ground that the trial Judge was biased. The application was dismissed and the Appellants’ counsel was called upon to proceed with their defence. Appellants’ counsel however sought for an adjournment to enable him take the message of the Ruling to his principal. The application was refused. Judgment was subsequently delivered in favour of the Respondent. The Appellants’ appeal up to the Supreme Court on ground of lack of fair hearing was unanimously dismissed. The apex Court held that the court has no business pursuing a recalcitrant party in order to hear him.

Certified true copies of public documents must bear the signature, name and official title of the certifying officer.

Omisore v. Aregbesola [2015] 15 NWLR (Pt. 1482) 205 at 294, paras. D-H, per Nweze, JSC:

“The first documents, as shown above, are public documents (exhibits 1-185). I entirely agree with the submissions of the cross-appellant with regard to their admissibility. Pursuant to section 104 of the Evidence Act, 2011, the said documents which, merely had CTC stamps bearing engraved signatures on them without the subscription of the name and the official title of the officer who certified them, were not properly certified in conformity with the mandatory requirements of section 104 (supra)… Most worrisomely, there are several pencil inscriptions, evidently, additions to the contents of the documents. These alterations, wittingly or unwittingly, had the effect of supplanting the main jurisprudential rationale for the statutory requirement that only duly certified copies of public documents are admissible where the parties do not intend to produce their originals…”

Blogger’s Note:

The above position aptly stated by the learned Justice of the Supreme Court further clarifies the point that merely having the words “certified true copy” on a public document does not satisfy the requirement for certification. It is now incumbent on the person applying for certification to ensure that the signature, name and the official title of the certifying officer are all contained on the certified document. These would go to support the authenticity of the document sought to be tendered and relied upon.

NB: The case is also an authority for the principle that it is not only internet-generated documents that are caught by the admissibility requirements of section 84 of the Evidence Act, 2011. See the case of Kubor v. Dickson [2013] 4 NWLR (Pt. 1345) 534, 577-578.

Interested in the full Judgment? Read here.