Category Archives: Law Report

The functions of the NBA are interwoven with the functions of other regulatory bodies in the legal profession.

 

NBA v. Kehinde [2017] 11 NWLR (Pt. 1576) 225 at 246-247, paras. G-E, per Tukur, JCA:

“Let me quickly state here that the regulatory functions of the Legal Profession in Nigeria is not bound up in one Body. It is a duty shared by many including: The Body of Benchers established by section 3 of the Legal Practitioners Act, Cap. L.11, Laws of the Federation of Nigeria 2004; General Council of the Bar established by section 1 of the Legal Practitioners Act, Cap. L.11, Laws of the Federation of Nigeria 2004; Nigerian Bar Association recognised by sections 8(3) & 24 of the Legal Practitioners Act, Cap. L.11, Laws of the Federation of Nigeria 2004; Council of Legal Education established by the Legal Education (Consolidation) Act, Cap. L.10, Laws of the Federation of Nigeria 2004; Legal Practitioners Privileges Committee established by section 5(1) of the Legal Practitioners Act, Cap. L.11, Laws of the Federation of Nigeria 2004; Legal Practitioners Remuneration Committee established by section 15(1) of the Legal Practitioners Act, Cap. L.11, Laws of the Federation of Nigeria 2004; Legal Practitioners Disciplinary Committee established by section 10(1) of the Legal Practitioners Act, Cap. L.11, Laws of the Federation of Nigeria 2004; and the Supreme Court of Nigeria. While some of these bodies have narrow powers, with functions that are sealed in water-tight compartments, others like the Nigerian Bar Association have functions which are interwoven with the functions of others…”

NBA interwoven functions with other bodies

Blogger’s Note:

The Respondent, a legal practitioner, sued the Appellant, the Nigerian Bar Association (NBA), contending that the invitation by the NBA for mandatory or compulsory validation or verification of records of legal practitioners in Nigeria for a fee constitutes an infraction of the statutory role of the Chief Registrar of the Supreme Court of Nigeria and the Council of Legal Education.

The NBA failed to defend the action. The trial Court upheld the Respondent’s contention and granted the Respondent the reliefs sought in that regard.

NBA appealed to the Court of Appeal arguing that the Respondent lacked the locus to file the action. This argument was totally discountenanced. The Court held that the Respondent had the standing to sue given that the verification exercise would bring about some costs to the Respondent as a legal practitioner. It baffles me why the NBA would throw up such argument in the first place.

The NBA further argued that the Chief Registrar of the Supreme Court and the Council of Legal Education ought to have been joined to the suit. The Court of Appeal rightly disagreed as the NBA is the one whose actions were challenged.

The issue which the Court of Appeal found as the substratum of the appeal however was the complaint of the Respondent that the verification exercise sought to be done by the NBA was not within its powers as same is within the purview of the statutory powers of other regulatory bodies. The Court of Appeal was not persuaded. Tukur, JCA took time to explain his position after making the quoted pronouncement above. His Lordship reasoned:

“The appellant had clearly stated that it worked hand in hand with the Chief Registrar of the Supreme Court in carrying out this exercise and neither the Supreme Court nor the other Regulatory Bodies have complained of the alleged usurpation of their roles. The respondent has the liberty of arguing that the exercise is unjust, unnecessary or a duplication of functions, but I do not agree with his assertion that the Nigerian Bar Association lacks the necessary vires to regulate the Profession in these circumstances.”

Notably, he Court of Appeal upturned the decision of the trial Court even though the suit was undefended by NBA. The reason being that even if a suit was undefended, the trial Court has a duty to consider the merits of the action and claims put forward. The Court however described the conduct of the NBA as reprehensible. See page 250 of the report.

While I agree with the reasoning of his Lordship in allowing the appeal, let me add that the issue of verification of legal practitioners is extremely important in this age and time where some persons have been found practising law illegally in Nigeria. Therefore, the NBA in conjunction with other bodies should always take the issue of verification seriously so as to weed out fake lawyers. Sadly, some of them had the guts to even appear at the Supreme Court. The duplication of function in this regard, if at all, is necessary.

However, it is condemnable that the NBA should continue to carry out this verification exercise for a fee. What for? Why turn everything into a money making venture or avenue for exploitation of legal practitioners?

A lawyer has a duty to advise his client against pursuing a useless appeal.

 

Chief John Oyegun v. Chief Francis Arthur Nzeribe [2010] 16 NWLR (Pt. 1220) 568 at 581, paras. D-E, per Ogbuagu, JSC:

“It is now settled that where the chances of an appeal succeeding are extremely remote (as in the instant appeal), it behoves counsel in the case to advise his client of the uselessness of pursuing such an appeal which patently lacks merit. See the case of K. R. Textile Allied Products Ltd. v. Henry Stephens Shipping Co. Ltd. & 2 ors. (1989) 1 NWLR (Pt. 95) 115 CA. It is now about thirteen (13) years since judgment was given in favour of the respondent against the appellant who has not shown any reason whatsoever, why he is unwilling to pay a debt/loan he never denied owing.”

Counsel advise

Blogger’s Note:

What happened in the case was that the Respondent loaned some money to the Appellant (free of interest) but the Appellant failed to repay same. On 23rd October, 1996, the High Court of Imo State, Oguta, delivered a Judgment against the Appellant ordering him to pay the money to the Respondent. The Appellant still refused to obey the Judgment of Court. He however decided to appeal the Judgment of the trial Court over 5 years after the Judgment was delivered. His application for extension of time within which to appeal the said Judgment was refused by the Court of Appeal. He further appealed to the Supreme Court, arguing that his fundamental right to fair hearing has been breached. The Supreme Court dismissed the appeal, holding that the argument was ‘completely misconceived in the extreme.’ See page 581 of the report. The apex Court upheld the decision of the Court of Appeal which held that the Appellant failed to satisfactorily explain the reason for the delay. The Court further held that it would not interfere with the exercise of discretion by the Court of Appeal, noting that ‘in matters of discretion, no one case can be an authority for another and the court, cannot be bound by a previous decision to exercise of discretion in a particular way.’

The Supreme Court thereafter criticised the Appellant’s Counsel for filing the otherwise frivolous appeal. See quotation above.

A Judge with little or no adequate knowledge of law is better than a corrupt Judge.

 

Makarfi v. Poroye [2017] 10 NWLR (Pt. 1574) 419 at 440-441, paras. G-D, per Saulawa, JCA:

“…Instructively, implicit in the judicial oath subscribed to by all of us judicial officers, fundamentally requires a total commitment to the rule of law, to the dispensation of justice according to law, without fear and favour, affection or ill-will, honestly, faithfully, and according to the Constitution and the laws made pursuant thereto. Such judicial oath equally demands that a judicial officer should not allow himself to be influenced by any extraneous or subterranean consideration whatsoever. As aptly postulated by the Hon. Justice M.M.A. Akanbi, (PCA Emeritus): “Let me say that while a Judge with little or no adequate knowledge of law, may be considered a nuisance, and his lack of understanding and appreciation of the law may constitute an obstacle in the path of justice, yet he is still more tolerable than a CORRUPT JUDGE. For a corrupt Judge is not only a dangerous obstacle, he is an anathema and a DISGRACE to the profession or the institution which he does not deserve to belong.” See M.M.A. Akanbi (PCA Emeritus): The Judiciary and the Challenges of Justice, 1996 at 36.”

Bidding for justice

Blogger’s Note:

What inspired the above notable pronouncement was the decision of Abang j., of the Federal High Court, Abuja Division, which was successfully appealed against by the Appellants. In the case, the 1st-9th Respondents had dragged Independent National Electoral Commission (INEC) and Peoples Democratic Party (PDP) (10th and 11th Respondents respectively) to the Federal High Court vide an Originating Summons seeking, among other reliefs, to be recognized by INEC exclusively as the authentic States Executive leaders of the PDP in the South West Zone of Nigeria (that is, Ekiti, Ondo, Ogun, Osun, Oyo and Lagos States) as against the faction of the party led by the Appellants. Although the 1st-9th Respondents made several references to the Appellants in their supporting Affidavit to the Summons, they however failed to join the Appellants to the suit. Continue reading A Judge with little or no adequate knowledge of law is better than a corrupt Judge.

Issue of candidate qualification is a pre-election matter as well as a post-election matter.

 

Dickson v. Sylva [2017] 10 NWLR (Pt. 1573) 299 at 341-342, paras. B-C, per Sanusi, JSC:

“As rightly conceded by the learned silk for the appellant, issue of qualification is a pre-election matter as well as a post election matter. Thus, the tribunal, the Court of Appeal and indeed this court can take cognizance of it. As could be seen from the wordings of section 138(1)(a) of the Electoral Act, 2010 (as amended), issue of qualification of a candidate to contest an election could be a ground in an election petition to question election of a declared winner. Such a ground could be fought both at the tribunal as well as at the normal or conventional High Courts as both the tribunal and High Courts have jurisdiction. This court however held in the case of Dangana v. Usman (2013) 6 NWLR (Pt. 1349) 50 at 89 that where an aggrieved candidate or party decides to lodge his or its complaint/suit in the High Court, then he can continue to pursue his grievance up to this apex court which is obviously his final destination or bus stop. But if such candidate chooses to lodge his complaint at the election tribunal, if it is on National or State Assembly election, then the [final] bus stop is the Court of Appeal. In view of the provisions of section 246(3) of the 1999 Constitution. The choice therefore remains with the candidate.”

Henry Seriake Dickson

Photo Credit: Pulse.

Blogger’s Note:

The position of the Supreme Court as stated above is quite explicit.

One important lesson we learnt from the case is that the case presents us with what clearly appears to be an exception. The facts of the case (earlier summarized here in a case involving both parties) are that the Appellant contested an election into the office of the Governor of Bayelsa State and was declared and returned as the winner. The 1st and 2nd Respondents challenged the Appellant’s return at the Election Tribunal.  In his reply to the Petition, the Appellant raised the issue of the qualification of the 1st Respondent to contest the election and his competence to present the Petition on the ground that, in line with section 182(b) of the Constitution, the 1st Respondent had been elected to the office of the Governor of Bayelsa State on two previous occasions and had occupied the seat for more than five years.

The Tribunal dismissed the 1st and 2nd Respondents’ Petition and upheld the return of the Appellant. However, the Tribunal failed to determine the objection raised by the Appellant concerning the qualification of the 1st Respondent to contest the election and his competence to file the Petition.

Dissatisfied,  the 1st and 2nd Respondents appealed and the Appellant also cross-appealed against the part of the Tribunal’s Judgment which failed to determine the Appellant’s objection. The Court of Appeal dismissed both the appeal and cross-appeal.

The Appellant appealed to the Supreme Court contending that the issue of qualification of a candidate to contest an election is both a pre-election and post election matter which is cognisable by the Tribunal, the Court of Appeal and the Supreme Court. He relied on the case of Dangana v. Usman (supra). Continue reading Issue of candidate qualification is a pre-election matter as well as a post-election matter.

A “Memorandum of Understanding” or “Letter of Intent” is not a binding contract.

 

BPS Construction & Engineering Co. Ltd. v. F.C.D.A. [2017] 10 NWLR (Pt. 1572) 1 at 28, paras. G-H, per Kekere-Ekun, JSC:

“…It is clear that a memorandum of understanding or letter of intent, merely sets down in writing what the parties intend will eventually form the basis of a formal contract between them. It speaks to the future happening of a more formal relationship between the parties and the steps each party needs to take to bring that intention to reality… Notwithstanding the signing of a memorandum of understanding, the parties thereto are not precluded from entering into negotiations with a third party on the same subject matter…”

Letter of intent is not binding

Blogger’s Note:

In reaching the above conclusion, the Supreme Court relied on the definition of a “memorandum of understanding” (MOU) as contained in Black’s Law Dictionary, 8th edition, page 1006 where the phrase was defined in terms of a “letter of intent”, which phrase was defined at page 924 as follows: “A written statement detailing the preliminary understanding of parties who plan to enter into a contract or some other agreement: A letter of intent is not meant to be binding and does not hinder the parties from bargaining with a third party. Business people typically mean not to be bound by a letter of intent and courts ordinarily do not enforce one, but courts occasionally find that a commitment has been made.” Continue reading A “Memorandum of Understanding” or “Letter of Intent” is not a binding contract.

It is erroneous to assume that people who communicate in Pidgin English do not understand proper or Queen’s English.

 

Opara v. Attorney-General of the Federation [2017] 9 NWLR (Pt. 1569) 61 at 109, paras. A-E, per Kekere-Ekun, JSC:

“On the contention that the appellant who speaks Pidgin English does not understand English Language, this court in a recent decision in Olanipekun v. The State (2016) LPELR-40440 (SC) @ 8-9, D-A; (2016) 13 NWLR (Pt. 1528) 100 at p. 118, paras. C-D, per Aka’ahs, JSC had this to say:

“It is erroneous to assume that people who communicate in Pidgin English do not understand proper or Queen’s English especially in Nigeria. The use of Pidgin English allows for free expression without minding the grammar which is usually employed in proper English. Consequently, a statement which was said have been recorded in Pidgin does not require translation into proper English and any statement made in Pidgin can be recorded in proper English.”

The reasoning above is equally applicable in the circumstances of this case. The fact that the appellant speaks Pidgin English does not mean she cannot understand proper or “Queen’s English”. I also venture to say that the fact that a person cannot read or write does not mean he/she cannot understand English when addressed in that language.”

valid arraignment

Blogger’s Note:

What happened in the above case was that the Appellant was charged on a 9 count charge of procurement of persons for prostitution, forceful or deceitful inducement of persons and confinement or detention of persons against their will, contrary to and punishable under sections 15(a), 19(b) and (c) respectfully of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003 (as amended). Continue reading It is erroneous to assume that people who communicate in Pidgin English do not understand proper or Queen’s English.

An application to set aside an arbitral award is not in the nature of an appeal against the award.

 

NITEL Ltd. v. Okeke [2017] 9 NWLR (Pt. 1571) 439 at 473, paras. A-C; 474, paras. A-B, per Kekere-Ekun, JSC:

“At the outset, I must say that learned counsel for the respondent correctly stated the position of the law that arbitration proceedings are sui generis. An application to set aside an arbitral award is not in the nature of an appeal against the award. An arbitral award is regarded as a final and conclusive judgment on all matters referred and the courts are enjoined, as far as possible, to uphold and enforce arbitral awards, having regard to the fact that it is a model of dispute resolution voluntarily agreed upon by the parties.”

“To underscore the fact that the court does not sit on appeal over an arbitral award, it is to be noted that even where the court finds merit in an application to set aside an award, its jurisdiction is limited to setting aside the award and remitting it to the arbitrator for reconsideration. The court has no jurisdiction to determine the merits of the matter which is the subject of the arbitration proceedings. See A. Savoia Ltd. v. Sonubi [2000] 12 NWLR (Pt. 682) 539. In the instant appeal, I observe that a significant portion of the appellant’s brief is devoted to challenging the award. This is not proper.”

Blogger’s Note:

In other words, the decision of an arbitrator is final. However, there are circumstances under which the arbitral award may be challenged for the purpose of being set aside by the court – such as where the arbitrator has misconducted himself, where the arbitral proceedings or award was improperly procured or where the award contains decisions on matters which are beyond the scope of the submission to arbitration. See Sections 29(2) and 30(1) of the Arbitration and Conciliation Act, Cap. A18, Laws of the Federation of Nigeria, 2004. Notwithstanding, the salient point being made is that the jurisdiction of the court to set aside an award is not an appellate jurisdiction, as clearly explained by the learned Justice of the Supreme Court quoted above. Continue reading An application to set aside an arbitral award is not in the nature of an appeal against the award.

The computer or gadget to be used in playing or demonstrating electronic evidence does not need certification.

 

Dickson v. Sylva [2017] 8 NWLR (Pt. 1567) 167 at 222, paras. B-C, per Ngwuta, JSC:

“In the same vein, once the computer generated document has been admitted in evidence, having satisfied all the requirements of section 84(2) of the Act, the statement therein can be produced for the court or tribunal by the means of any functional computer without a certificate in form of exhibit P42A. I see no such requirement in the various provisions of section 84 of the Evidence Act.”

per Kekere-Ekun, JSC, at 234, paras. D-E:

“There is nothing in section 84 of the Evidence Act 2011 that places a further requirement on the party seeking to rely on electronic evidence to certify the gadgets to be used in demonstrating what had already been admitted, as contended by learned senior counsel for the appellant. In my view, the interpretation suggested would certainly lead to absurdity. The computer or projector to be used to demonstrate the admitted evidence has no part to play in the production of the evidence or its authenticity.”

Electronic evidence

Blogger’s Note:

The case involves an interlocutory appeal filed by the Appellant contesting the decision of the Court of Appeal which held, while overruling the trial Tribunal, that the computer device to be used in demonstrating an electronically-generated evidence does not require certification. Continue reading The computer or gadget to be used in playing or demonstrating electronic evidence does not need certification.

The blood relation of a victim of crime is not necessarily a tainted witness.

Adekoya v. State [2017] 7 NWLR (Pt. 1565) 343 at 359, paras. A-B, per Peter-Odili, JSC:

“The evidence of PW4 was not contradicted during cross-examination. Learned counsel for the appellant had sought to discredit the testimony on the ground that PW4 was a tainted witness. In that regard, I would have to say that the mere fact that a witness is a blood relation of the victim does not translate without more to being a tainted witness. See Musa v. State (2012) 3 NWLR (Pt. 1286) 59; Ben v. State (2006) 12 SCM (Pt. 2) 71 at 88, (2006) 16 NWLR (Pt. 1006) 582.”

Blogger’s Note:

There is no statutory definition for “tainted witness” and none is contained in the Evidence Act 2011. In Ojo v. Gharoro (2006) 2 – 3 SC 105 at 124, Tobi, JSC (of blessed memory) described a “tainted witness” as “…a biased witness, that is to say a witness who, because of his prejudices and sentiments will invariably give evidence in favour of the party calling him, with little or no regard for the truth. A tainted witness could be an interested witness. And because of his interest, the witness develops a one sided inclination and it is the inclination towards the party who calls him to give evidence; no matter the obvious lies he tells in court. In determining whether a witness is an interested witness or a tainted witness, the court must examine the relationship of the witness to the party calling him.” Continue reading The blood relation of a victim of crime is not necessarily a tainted witness.

Ex parte order for arrest of ship shall subsist and not lapse automatically after 14 days.

Transnav Purpose Navigation Ltd. v. Sam Purpose (Unreported) – Suit No. FHC/L/CS/39/17 – Idris J:

“Counsel to the Defendant/Applicant relied on the decision of the Court of Appeal in JESSCO MARITIME RESOURCES LTD VS. THE “MT” MOTHER BENEDICTA & ANOR. (UNREPORTED) APPEAL NO. CA/L/511/2010 in arguing that the lifespan of an ex parte order is only 14 days. I must say that I do not agree with the argument of Counsel in this regard… Therefore it seems to me that Counsel has misconstrued the provision of the Rules of this Court and as a result the argument cannot be sustained. In the light of the foregoing… the ex parte order still subsists until the Defendant provides security for the claim of the Plaintiff.”

Order of arrest of ship subsists after fourteen days

Blogger’s Note:

In the above case, the trial Court made an ex parte Order on 13/1/2017 for the arrest of the Defendant Ship. On 9/2/2017, the Defendant applied for an order releasing the Ship from arrest on the ground that the ex parte Order had expired since 14 days had elapsed. The second ground for the application for release was that the Plaintiff in making the application ex parte for the arrest of the Ship, concealed/suppressed a fact relating to the existence of an arbitration clause in their contract. In its Ruling of 31/3/2017, the Court refused the prayer for the release of the Ship holding that its Order had not expired even though 14 days had elapsed as quoted above. The Court also held that “the mere fact that the agreement contained an arbitration clause can be regarded as a minor fact”. Therefore, concealment of same does not amount to a suppression or concealment of a material fact capable of discouraging the Court from granting the Order in the first place. The Court further held that the mere fact that parties agreed to submit to arbitration does not affect the ex parte order for arrest of a vessel.

Order 26 Rule 12(1) and (2) of the Federal High Court (Civil Procedure) Rules 2009 provides that “No order made on motion ex parte shall last for more than fourteen days after the party or person affected by the order has applied for the order to be varied or discharged or last for another fourteen days after application to vary or discharge it has been argued. If a motion to vary or discharge an ex parte order is not taken within fourteen days of its being filed, the ex parte order shall lapse.”

In arriving at its decision based on the above provisions of the Rules, the trial Court referred to some authorities such as the case of Brittania-U (Nig.) Ltd. v. Seplat Dev. Co. Ltd. [2016] 4 NWLR (Pt. 1503) 541, decided on 29/1/2016. There, the Supreme Court interpreted the provisions of Order 26 Rule 12(1) and (2) and held that no order made on motion ex parte shall last for more than 14 days after the party or person affected by the order has applied for the order to be varied or discharged or last for another 14 days after application to vary or discharge it has been argued. More so, if a motion to vary or discharge an ex parte order is not taken within 14 days of its being filed, the ex parte order shall lapse. The Court concluded that the interim order of 13/12/2013 amended on 23/12/2013 in that case had both expired by effluxion of time, 14 days having expired. The Supreme Court reasoned that an ex parte order of injunction was not meant to operate as a temporal victory to be used against the adverse party indefinitely. Notably, the case was about an interim injunction granted by the trial court in favour of the Appellant against the sale of OML 52, 53 and 55.

The trial Court also referred to the Court of Appeal case of Jessco Maritime Resources Ltd. v. The MT Mother Benedicta supra decided on 1/7/2016. There, the Court of Appeal held that the lifespan of an ex parte order is only 14 days and that the ruling of court discharging the order after the 14 days had elapsed was a mere surplausage. The case bordered on an interim order granted for the arrest of the 1st Respondent ship.

Arrest of ship

In the face of the above decisions, the learned trial Judge in the case of Transnav Purpose Navigation Ltd. v. Sam Purpose supra relied on an earlier Court of Appeal case of Nigerian Ports Authority Supernuation v. Fasel Services Ltd.  [2002] FWLR (Pt. 97) 719 CA in arriving at its decision. In that case, it was held that an ex parte order does not automatically lapse after 14 days as it was not the intention of the framers of the rules of court to limit the powers of the trial Judge to 14 days after making the order.

The position of the Supreme Court in Brittania-U and the position of the Court of Appeal in Jessco appears to be the standing authorities on the proper interpretation of the provisions of Order 26 Rule 12 even as it relates to an ex parte Order for the arrest and detention of a Ship. However, the trial Court in Transnav refused to be bound by those decisions. What we could deduce from the reasoning of the Court is that its decision was based on what it perceived as what the law ought to be and the justice of the case. Should the Defendant opt to appeal the Ruling, then the decision of the appellate court would assist in further clarifying the position of the law on the point.

NB: Based on the agreement of parties, the Court ordered that proceedings be stayed pending the conclusion of arbitration but refused the application for release of the Ship.

Need a certified copy of the Ruling in Transnav’s case, contact us.