ORDER OF REASSIGNMENT DE NO VO

JUDGMENT AND ORDER - ORDER OF RE-ASSISGNMENT/DE NOVO: The procedure employed where a judge or a magistrate is disqualified from hearing a matter "Where a Judge or Magistrate handling a trial is disqualified, for one reason or another, from continuing with the hearing of the matter, the normal procedure is that the case file is sent back to the Chief Judge for reassignment to another Judge or Magistrate who will commence the trial of the matter de novo - Estisione H. Nigeria Ltd Vs Osun State Government (2012) AELR 4580 (CA). It is not permissible for a Judge or Magistrate to take over a part heard matter and to continue the hearing from where the last Judge or Magistrate stopped; he ought to start the case de novo. This is because judgment of a court must be based upon sound and credible evidence heard by the particular Judge or Magistrate who writes it, otherwise it will not be no more than a moot trial - Agbeotu Vs Brisibe(2005) 10 NWLR (Pt 932) 1

factors to consider in determining jurisdiction

Wema Securities And Finance Plc V Nigeria Agricultural Insurance Corp (Supreme Court – July, 2015) Legalpedia Electronic Citation: LER[2015] SC.177/2006*...

 the court held that: JURISDICTION OF THE FEDERAL HIGH COURT – FACTORS TO CONSIDER IN DETERMINING THE JURISDICTION OF THE FEDERAL HIGH COURT “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 (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, Obiuwevbi v. CBN (2011) LPELR -2185 (SC) 20, C-F, Citing Oloruntoba-Oju v Abdul-Raheem and Ors [2009] s-6 SC (pt 11) 57;(2009)6 MJSC (pt 1) 1; NURTW and Anor v RTEN and Ors (2012) LPELR -7840 (SC) 47, C-G; NNPC and Ors v Orhiowesele and Ors (supra); PDP and Anor v Sylva and Ors (2012) LPELR -7814 (SC) 52-53, G-E; James v INEC and Ors [decision of thiscourt delivered on March 13,2015); Ohakim v Agbaso [2010] 19 NWLR (pt 1226) 172, 236 – 237, G-D; Kakih v PDP and Ors (2014) 15 NWLR (pt 1430) 374,414, F-G; Ahmed v Ahmed and Ors (2013)15 NWLR (pt 1377) 274,335, C-H”. PER C.C. NWEZE, J.S.C.

On service of hearing notices

In the Supreme Court’s judgement in the case of The Registered Trustees of the Presbyterian Church of Nigeria v John Asuquo Etim (2017) 13 NWLR (Pt. 1581) 1, which decision was handed-down as far back as January 2017, on the effect of non-filing of letters of adjournment addressed to a court among other things. As much as the decision represents a welcome development in the advancement of our court-made laws especially as it tends to discourage the unethical practice of deliberate frustration of court proceedings under the tacky disguise of spurious letters of adjournments, the judgement leaves a whole lot more to ponder as would be seen shortly. This piece shall focus on the court’s ratio decidendi which propelled it to set aside the Court of Appeal’s decision reported at Part 883 of (2004) 11 NWLR at page 84 on one hand and the ripple issues that have arisen from the court’s land-marking decision on effect of “unfiled” letters of adjournment on the other hand. One wouldn’t however be surprised at the attendant wide-spread bandying of this decision in and out of our courtrooms as it is the “popular” practice where lawyers conveniently cite authorities once the principles suit their circumstances even where the facts are palpably differing. In Interdrill Nigeria Ltd v U.B.A Plc (2017) 13 NWLR (Pt. 1581) 52 @ 66 para B , Nweze, JSC stated that: “This court has, often, admonished, cases are only authorities for what they actually decided in the context of the prevailing facts.” Hence, it is my view that, the apex court’s decision in the case under review is not, ‘one size fits all’ and it should not be so abused. See Augie, JCA ’s (now JSC) holding in Oando Plc v Comfort Ajaigbe (2015) LPELR- 24816(CA) to the effect that: “We must also bear in mind that each case is considered on its own merit, and there is no one-case-fits-all in our legal system. In other words, no two cases are exactly similar.” As a preliminary point, the apex court should not be wrongly quoted to have outrightly disapproved letters of adjournment which the court referred to as “a formal application” at page 40 para G while making reference to the case of Yisi Nig. Ltd v Trade Bank Plc (1999) 1 NWLR (Pt. 588) 646 even though there was nothing on record to show that the letter was assessed by the court’s registry and paid for by the party concerned. Bearing the foregoing in mind, the brief facts of the case are as follows: The Appellant Church filed an action against John Asuquo Etim (Respondent) at the High Court of Cross River State sitting in Calabar claiming statutory right of occupancy on a piece of land in Calabar among other reliefs. The Church filed two motions (one exparte and the other on notice) along with its writ of summons on 8 December 2000 but served on the Respondent on the 14 day of December 2000. The Appellant approached the court on the 12 day of December 2000, two days before the Respondent was served, the trial court refused to grant its exparte application but ordered the Respondent to be put on notice and set the matter for hearing of the motion on notice on 19 day of December 2000, hence the Respondent was consequently served on the 14 day of December 2000. On the hearing date, the Respondent was absent and unrepresented. The judge after finding that he was duly served with the processes, proceeded to grant the interlocutory reliefs sought by the Appellant thereby restraining the Respondent from erecting any structure on the land in dispute. Dissatisfied with the ruling, Mr. Etim approached the Court of Appeal, which set aside the High Court’s ruling on the ground that, Mr. Etim was not given fair hearing before the orders were made. Dissatisfied with the Court of Appeal’s decision, the Church also approached the Supreme Court which appeal culminated in the decision under review. This writer observed that, from the decision, the fundamental defect of non-service of hearing notice was, unfortunately, neither expressly raised by both Counsel nor considered suo motu by the Supreme Court being a serious matter that goes to the root of the trial court’s jurisdiction. Non-service of hearing notice Through out the judgement, the Supreme Court kept on emphasizing service of the motion on the Respondent particularly at page 23, para E-F; 29; 30 para B; 32 para A-B; 43 para C; 44 para F; 46 para G and 51 para B . Hence, the court was thus satisfied that the Respondent was duly served with the motion on notice but surprisingly the same Supreme Court at page 23, para C -D , reiterated the age-long stance of the court on non-service of hearing notices thus: “ My Noble lords, I think it is now apparently necessary to remind ourselves that, among the statutory duties placed upon the shoulder of any (trial) judge who is about embark upon hearing and determination of a matter, whether on main suit or a motion placed before his court, is that after all the preliminaries to the hearing, he must ensure that all the parties in the suit/motion are fully notified of the existence of the matter and same has been duly served with hearing notice/notices against the date fixed for hearing. Where there is no such service of the process including hearing notice , any step taken by the judge in hearing the matter is null and void which must be set aside on appeal.” (Emphasis mine) Per I.T. Muhammad, JSC Needless to add that, there is a plethora of Supreme Court, on the indispensability of service of hearing notice in court proceedings. See Ogbueshi Joseph Achuzia v Wilson Fidelis Ogbomah (2016) LPELR-40050(SC) where it was held thus: “Failure to serve a hearing notice of date for hearing of a case on a party runs riot and violent to the principle of fair hearing as enshrined in the 1999 Constitution and any proceedings held or taken in the absence of a party who was not put on notice of the date of such proceedings is a nullity and therefore must be annulled.” Per Sanusi, JSC See also the apex court’s decision in Alhaji Auwalu Darma v Ecobank Nig. Ltd (2017) 9 NWLR (Pt. 1571) 480 @ 511 para A – C, where Nweze, JSC held that: “…hearing notice is the only legal means of getting a party to appear in court. Thus the issuance of hearing notice from day to day on the absent party is imperative …it must be emphasized that such an absent party is equally, entitled to be issued and served with hearing notice of the date of the delivery of the judgement because it is a constitutive part of the hearing of the action.” (Emphasis mine) It must however be noted that, nowhere in the 51-paged judgement is it on record that, the Respondent was served with hearing notice even when the court emphasized its fundamental nature at page 23. Hence, contrary to the Supreme Court’s verdict, we are of the respectful opinion that the whole proceedings of 19 December 2000, upon which all the appeals were predicated, were a nullity for non-service of hearing notice to notify the Respondent that the motion on notice would come up for hearing more so when there was nothing on record to show that he actually had knowledge that the motion had been set down for hearing. This, in our respectful view, amounted to denial of fair hearing. Other matters arising from the decision on letter of adjournment The Supreme Court, from page 34, para G to page 43 of the judgement as reported, ruled on the effect of a letter of adjournment that was not filed in a court’s registry and by which decision, the apex court has not only extended the frontiers of our procedural law on adjournment of proceedings, several other appurtenant issues worthy of discourse were consequently raised in the decision. The court, while justifying the trial court’s silence on the letter of adjournment, held at page 37 para H thus: “…as at the time the trial court sat to determine the motion on notice, nobody drew the attention of that court that there was a document (letter) filed by the respondent asking for adjournment. This perhaps was what accounted for the court not making any reference to the said document and afortiori, no reference was made by the trial court. I don’t think the trial court could make reference to a document that was not placed before it.” (Emphasis mine) From the foregoing, it seems a precedent has been laid to protect and indemnify a court registrar who inadvertently or otherwise omits to inform the court of the pendency of a letter of adjournment to the detriment of the party who is not present to personally draw the court’s attention to same irrespective of whether the letter was properly filed or not. In Ede v. Mba (2011) 18 NWLR (Pt.1278) 236 , the Supreme Court held, per Muhammad, JSC (My Lord who coincidentally wrote the leading judgement under review) that: “But, the most relevant question one would pose here is: should this Court allow an unsuspecting litigant to suffer as a result of the mistakes/omissions occasioned by the Registry staff? Certainly, No! I repeat and adopt what Olatawura, JSC (of blessed memory) said in the case of Cooperative and Commercial Bank Plc v. Attorney-General Anambra State & Anor (1992) 8 NWLR (Pt. 261) 528 at p 561 that: “It will be contrary to all principles to allow litigants to suffer the mistake of the court Registry. In other words, the Court will not visit the “sin” of the court’s registry, on a litigant or his counsel , unless, it was shown that the litigant and/or his counsel was a party thereto or had full knowledge of the “sin” or mistake and encouraged or condoned the said act. Therefore, on the authorities, justice, equity, fairness and good conscience, must persuade me, to hold further, that this appeal deserves to succeed and it in fact does.” As I have given a glimpse of some of the facts relied upon by the applicants above, I am of the opinion that once a party, such as the applicants herein, has performed creditably his own portion of responsibility of what he is required by the law to fulfill, in instituting an action, he should not be made to suffer the failure, blunders, or omissions of the court registry. It will be inequitable to do so. By our law and practice, once a prospective party has properly made his claim as required by law and delivered same in the registry, what is left to be done such as sorting out of the processes, giving them identification numbers for ease of reference; distributing such processes to the various Justices is the domestic responsibility of the registry. The party has no more say on it except what the court/registry requires of him to do. Thus, it will be unconscionable and against the interest of Justice to penalize such a party for such errors, lapses, mistakes or accidental slips or omissions by administrative or clerical functions of the registry.” (Emphasis mine) Although the court reproduced contents of the letter verbatim but still went ahead to hold at page 39 that “ The letter does not bear semblance of an official communication between the learned counsel and the trial court official” in spite of the fact that it was address to the “ Registrar, High Court No. 7, Calabar” From the foregoing, could it be said that the apex court favours a letter of adjournment to be addressed to the judge rather than the court registrar? Your guess is as good as the writer’s in this regard. Service of adjournment letters on the hearing date On impropriety of service of letter of adjournment on a date fixed for hearing, the court again held at page 30 – 40 that: “This letter, as it appears, was simply dumped on the registry of the trial court on the very day the motion on notice was to be heard. Was it not really meant to arrest the proceedings of that day? I positively think so. And no court of law worth its salt, can allow itself to fall into such a trap, which is all out to cause an unjustifiable delay and denial of justice. For whatever purpose that letter was written to the trial court’s registry, the other party i.e. the appellant ought to have been served with a copy thereof .” (Emphasis mine) From the foregoing, the court seems to have made it clear that, a letter for adjournment must be served on the other party before it can have any effect in law, just like every other application and where such letter is brought on the day of hearing without service on the other party, it is tantamount to a new phenomenon known as “ arrest of proceedings” Hence, it now seems that, any court that adjourns a matter on the strength of a letter of adjournment which was brought on the hearing date and never served on the adverse party has violated fundamental procedural rule as laid down by the Supreme Court in this case. Nature of letter of adjournment The court held at page 41 that: “It is important to point out as well that, if a document is meant for the court to take note and act there on, rules of court have made provisions for formal filing of such document or documents with the registry of the court, for which nominal fee is payable upon assessment by the registry staff who authenticate the filing of that document and proceed to file same for the court’s attention.” The apex court’s ruling however finds expression in the Lagos High Court Civil Procedure 2012 at Order 1 Rule 2(3) where “Court Process” is defined to include: ” Writ of summons, originating summons, originating summons, originating process, notices, petitions, pleadings, orders, motions, summons, warrants and all documents or written communication of which service is required” (Emphasis mine) Conclusion On the whole, the novel principle laid down by the supreme court in the case under review would, undoubtedly improve our practice and procedure and it would be desirable if the heads of court can proactively and comprehensively review their various rules to accommodate provisions on letters and/or written applications for adjournment in line with the Apex Court’s lead in a bid to discourage frivolous letters of adjournment written to frustrate and delay the wheels of justice. By Olumide Babalola

power of a lender to charge higher interest

POWER OF A LENDER TO CHARGE AN INTEREST RATE HIGHER
THAN THE INITIAL INTEREST RATE
AMSEL LTD & ANOR v. UBN PLC

PRACTICE AREA: BANKING LAW

INTRODUCTION

Obtaining a loan facility for one purpose or the other is not an uncommon phenomenon and it is usually evidenced by a loan agreement. This loan agreement, containing the terms upon which the loan facility is granted, is usually presented by the banks for signing by the borrower. One of the essential clauses in the loan agreement is the one relating to interests rate. Some loan agreements make interests rate chargeable susceptible to changes in the trend or fluctuations in the financial market. Such was the loan agreement in the case at hand.

The Court of Appeal, per OHO, J.C.A. considered the import of such an interest rate clause in the case at hand and held that “The settled position of the law is that where there is a provision that interests is not fixed and that it is subject to variations or fluctuations, as in the instant case, the lender has the power to charge an interest rate higher than the initial interest rate as long as what is charged is the prevalent interest rate in the financial market.”

The Court went further to state instance(s) where, despite the interest rate clause being made susceptible, the lender will not be allowed to charge an interest rate higher than the initial interest rate. The Court held that “The exception, however, is where the borrower can establish that the interest rate imposed is unreasonable or in excess of what obtains in the financial market at the relevant time.”

On whether the Court can set aside the imposition of an interest rate higher than the initial interest rate or compel the lender to charge a particular interest rate, the Court, per OHO, J.C.A said “In addition, a Court of law cannot set aside the imposition of an interest rate which is reasonable and in tandem with what obtains at the financial market at the relevant time as this is usually set by CBN policy.”

ON DEMAND FOR CTC OF PUBLIC DOCUMENTS :

ON DEMAND FOR CTC OF PUBLIC DOCUMENTS : The Supreme Court in KASSIM v. STATE (2017) LPELR-42586 (SC) per KEKERE-EKUN, JSC observed thus: “Now, what really is the essence of the demand for a certified true copy of a public document? I think, and in agreement with ADEKEYE JSC, in GODWILL & TRUST INVESTMENT LIMITED v. WITT & BUSH LIMITED (2011) 8 NWRL, 500; (2011) LPELR-1333 (SC), the essence of demanding for a certified copy of a public document is the assurance of the authenticity of the document vis-à-vis the original. And so why go for that assurance in the certified true copy vis-à-vis the original, when the original is available? And so, when the cap is in the market, the head is also in the market; there is no further need to take the cap home from the market in order to test it on the head. I, therefore, agree with the court below that where the original copy of a document is available, it is admissible without the requirement of certification.”

useful authorities on Wetherby a charge badly framed

On Friday, the30th Day of June, 2017 Before Their Lordships Ibrahim Tanko Muhammad Mary Ukaego Peter-Odili Olukayode Ariwoola Kumai Bayang Aka’ahs Amina Adamu Augie Justices, Supreme Court SC.531/2012 Between Ikechukwu Ikpa Appellant And The State ……..Respondent Lead Judgement delivered by Hon. Amino Adamu Augie, JSC The Appellant obtained the sum of N399, 000.00 (Three Hundred and Ninety- Nine Thousand Naira) from a certain Mrs. Justina Okeke (PW2), on the understanding that he would supply her with gold wristwatches and trinkets which he claimed were to be cleared at the Wharf. After collecting the money from PW2, he absconded without supplying the goods, but was later arrested by the police. The Appellant was Consequently, arraigned before the High Court of Imo State on a two count Charge of conspiracy to commit felony (count one) and obtaining money by false pretence (count two). At trial, the Appellant testified solely in his defence. He claimed that PW2 framed him, because he refused to marry her daughter (PW1) who was his girlfriend. At the conclusion of trial, the Court found that the Prosecution proved count two of the Charge, but failed to prove count one of the Charge. Dissatisfied, the Appellant unsuccessfully appealed to the Court of Appeal and further appealed to the Supreme Court. Issues for Determination The issues considered by the Supreme Court were as follows: Whether the Court of Appeal was right to hold that the Charge contained in count two of the Information was substantially in conformity with the provisions of Sections 151, 338 and 463(1) of the Criminal Procedure Act; Whether the Particulars of offence related to a future event or representation; Whether the Prosecution proved its case beyond reasonable doubt; Whether the trial Court considered the Appellant’s defence or evaluated his evidence, before convicting him for the offence charged against him. Arguments On issue one, Counsel for the Appellant submitted that, the law mandates the Prosecution, when drafting a Charge, to follow the words of the provisions of law under which the Charge was laid. He argued that the Charge in this case, did not reflect the full details of particulars of the offence for which he was charged. He argued that Section 1(1) of the Advance Fee Fraud and Other Fraud Related Offences Decree under which the Appellant was charged, makes “intent” an essential element of the offence, but the words – “and with intent to defraud” – was not part of the said particulars. He opined that where an offence consists of doing an act with particular intent or manner, the Charge must allege it was done with that intent or manner. He also contended that Section 1(3) of the Decree did not disclose any definition of offence, and that the Appel­lant was only charged under a punishment Section of the offence, which provision in law was not expressly stated in the Statement of Offence. Consequently, the Appellant was not charged under any substantive law. He cited A-G FEDERATION v DR. CLEMENT ISONG (1986) 1 WLRN 75. Counsel for the Respondent on the other hand, argued that the Charge complied with the requirements stipulated in Section 151 of the Criminal Procedure Act by stating the specific name of the offence, and that the law permits the use of the punishment Section of the offence in drafting the Charges. He submitted further that, the Charge used the term “fraudulently obtained” which is defined to mean “intended to deceive somebody”. Therefore, the words “with intent” are clearly embedded in the Charge. He stated that sufficient notice of the Charge was given to the Appellant, and he was not misled. He cited OKOYE v POLICE (1964) NMLR 146. On issue two, Counsel for the Appellant contended that the Particulars of offence in the Information relate to a future promise, future conduct and representation. He argued that the portion of the Particulars of offence which says “under false pretence that you will supply to her golden wristwatches and trinkets”, related to a future representation. It was therefore, wrong and incompetent. He relied on the cases of ACHONRA v IGT (1958) 3 FSC 30 and ANU v IGP (1958) 3 FSC 38. The Respondent countered the argument and submitted that, the Particulars of offence do not relate to any future event or representation, as it disclosed that the Appellant knew he had no trinkets to supply to the Complainant at the time of the representation. On the third issue, Appellant contended that there were contradictions in the evidence of the Prosecution, and where such contradictions are on material facts which are not explained by the Prosecution, the trial Court must not be left to speculate or proffer explanations for the contradiction. Counsel argued that, where the Court entertains even the slightest doubt, it should be resolved in favour of the Accused person. The Respondent on the other hand argued that the Prosecution proved the ingredients of obtaining by false pretence against the Appellant, and that there were no material contradictions in the evidence of the prosecution witnesses. On the fourth issue, the Appellant’s Counsel submitted that the allegation against the Appellant, was orchestrated by PW2’s family out of malice, for his refusal to marry PW1. He stated further that, the Appellant was not cross-examined on this point which is the root of the problem, and submitted that where a party is not cross-examined on a piece of evidence, and there is no counter-evidence, the court is bound to believe the evidence as true. He stated that the trial Court failed to consider his defence, to enable it determine whether it was false or unlikely. Counsel also argued that by Section 12 of the Advanced Fee Fraud and Other Related Offences Act (as amended), the trial Court lacked the jurisdiction to try offences under the Act before the 5th June, 2006, unlike the Federal High Court. It was the submission of Counsel for the Respondent on this issue, that the trial Court properly evaluated the evidence of the Prosecution and Defence Witnesses before making clear findings of facts. On the issue of jurisdiction, the Respondent argued that the jurisdiction of the trial Court to try offences under the Act, was never removed. Court’s. Judgement and Rationale On the first issue, the apex Court considered Section 1 of the Advance Fee Fraud and Other Fraud Related Offences Decree (the Decree) to hold that the offence of obtaining property by false pretence is defined in subsections (1) and (2) of Section 1 of the Decree and the penalty for the offence is stated in its subsection (3). Therefore, count two of the information should have read “obtaining money by false pretence contrary to Section 1(1) or (2) of the said Decree and punishable under Section 1(3) of the Decree” as opposed to “obtaining money by false pretence contrary to Section 1(3) of the Advance Fee Fraud and other Related Offences Decree.” The Court however, held that by Section 166 of the Criminal Procedure Act (CPA), no error in stating an offence or particulars required to be stated in the Charge and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the Accused was in fact misled by such error or omission. The Court also held that by Section 167 of the CPA, any objection to a Charge for a formal defect on the face of it shall be taken immediately after the Charge has been read over to the Accused and not later. The Court concluded that the Appellant was not misled, and that no miscarriage of justice was occasioned thereby. On the second issue, the Supreme Court held that Section 1(1) and (2) of the Decree creates the offence of obtaining property by false pretence. In this case, the Appellant is alleged to have fraudulently obtained the sum of N399,000.00 from PW2, under a false pretence that he would supply her with the jewellery that he knew he did not have. It was an existing fact, and not a representation to do any act in the future. The Court held that the cases of ACHONRA v IGP (supra) and ANU v IGP (supra) are distinguishable from the instant case, as the alleged representations in the said cases, were clearly to do future acts. In resolving the third issue, the Court opined that it is not every minor contradiction in the evidence of witnesses that matters. For a trial judge to disbelieve a witness, the contradiction is his evidence must be on a material point. KALU v STATE (1988) 3 NSCC 1. Thus, the Court of Appeal was right when it held that the alleged contradictions, could be held to be material since they did not impugn the Prosecution’s case. On the fourth issue, the Court held that, the power and privilege of a trial Court to believe one side or disbelieve the other, can only be questioned on appeal, if it is against the drift of the evidence when considered as a whole. Where there is evidence to support concurrent findings of fact by two lower courts, such findings of facts will not be disturbed, unless there is significant error apparent on the record and in this case, there is nothing perverse about the decision of the trial Court. On the issue of jurisdiction raised by the Appellant, the Supreme Court upheld the decision of the Court of Appeal, that there was no time when the High Court of a State was deprived of jurisdiction to try cases of Advance Fee Fraud.

DUTY OF COUNSEL WRITING LETTER OF ADJOURNMENT

ON DUTY OF COUNSEL WRITING LETTER OF ADJOURNMENT TO FORMALLY FILE SAME: "It is important to point out as well, that if a document is mearnt for the court to take note and act thereon, rules of court have made provisions for formal filing of such a document or documents with the registry of the court, for which a norminal fee is payable upon assessment by the registry staff, who authenticate the filing of that document and proceed to file same for the court's attention. It is only by formal filing when the court become seised of the document. All other ways or methods such as writing letters or petitions informing the Chief Judge/Chief Justice/Head of Court and or Chief Registrar(including his subordinate registrars) are purely administrative and have no force of law......I have all reason to believe therefore, that the said letter cannot be regarded as a legal document. Even if it is placed before the learned trial Judge, the best the learned trial Judge could do was to discountenance it." I.T. Muhammed, JSC - Regt. Trustees, P.C.N. v Etim, 2017 (Pt. 1581) 13 NWLR, pg. 1 @ pgs. 41-42, paras. E - B.

EXTENSION OF TIME

EXTENSION OF TIME

It is a general principle of law that where the law provides a time limit within which an action can be brought in court, such period must be complied with before the Court will have jurisdiction to adjudicate on the said action.

The principle further states that if an applicant is unable to apply within the time limit, he must apply for an order granting him extension of time within which to institute the said action. The Court of Appeal in applying this principle, dismissed the appeal and affirmed the decision of the trial court striking out the Appellant’s application for judicial review on the grounds that it was not filed within the time prescribed by the Rules of Court and subsequently not filed with an application seeking extension of time within which to apply for judicial review.

Facts

The Appellant being dissatisfied with the decision of the Nigerian Navy Board dismissing him from the Nigerian Navy filed an application dated 29th February 2008 at the Federal High Court, Lagos Judicial Division (“trial court”). The Application was made vide an ex-parte application brought pursuant to Order 34 Rule 4 and Order 48 Rule 4 of the Federal High Court Rules 2001. In the application, the Appellant sought an order granting him leave to apply for judicial review of the decision of the Respondent and an order grating him leave to make the said application by way of originating summons.The Appellant filed this application after three months of the dismissal which was contrary to the time limit stipulated by Order 34 rule 11 of the Federal High Court Rules 2001.

On the 14th day of April 2008, the trial court granted the prayers sought by the Appellant in the application. The Respodent, thereafter filed a motion dated 22nd July 2009 seeking an order dismissing the judicial review proceedings of the Appellant for lack of jurisdiction. The Respodent also filed a counter affidavit dated the 2nd day of Novemeber 2009 to the Appellant’s application for judicial review and raised the issue of the Appellant’s failure to file the originating summons within three months from the dismissal as prescribed by the Rules.

The Appellant, after receivng the Respondent’s counter affidavit, filed an application dated 30 November 2009 seeking an order extending time within which to file his originating summons. The Respondent in response, filed a counter affidavit dated 8 December 2009. On 24 February 2010 , the trial court granted the Appellant’s application for extension of time and heard arguments by both counsel for and against the Appellant’s applciation for judicial review. The trial court on the 12th day of January 2011, gave judgment in favour of the Respondent and struck out the Appellant’s application for judicial review on the ground that the application was filed out of time.

Being dissatisfied with the judgment, the Appellant filed a Notice of Appeal to the Court of Appeal,Lagos Judicial Divison (“the Court”) dated 4 April 2011 and raised three issues for determination;

a. Whether the trial judge was right in striking out the Appellant’s origiating summns having earlier granted the Appellant’s motion exteding time to file the roiginating summons?

b. Whether the delivery of the judgment 11 months after final address occassioned a miscariage of justice?

c. Whether the trial judge ought not to have granted the claims of the Appelant as set out in the originating summons for judicial review?

The issues were adopted by the Respondent and subsequently the Court.

Arguments canvassed by Counsel

On Issue one, the Appellant’s Counsel argued that the trial judge was wrong in striking out the originating summons on the grounds that it was not filed within 3 months as provided for under Order 34 Rules 11 of the Federal High Court Rules 2001, having earlier granted an order extending time within which the Appellant could file his originating summons. He further argued that the trial judge had earlier held that the Appellant had complied with the provision of the said rule and had subsequently paid the penalty and as a result it will be an act of injustice to shut the Appellant out from ventilating his case. He thereafter submitted that the trial court was functus officio over this issue and could not revisit same while considering the originating summons and that the Respondent’s only remedy if he was dissatisfied with the ruling of the trial court granting the Appellant extension of time to file his originating summons was to appeal the said ruling which the Respondent had failed to do. He urged the Court to set aside the decision of the trial court and hold that the trial court was functus officio to determine the issue of whether or not the originating summons was filed within time having regard to the earlier ruling of the trial court extending time to for the Appellant to file his originating summons.

In response, the Respondent’s Counsel argued that it is trite that the prescribed conditions in the rules of Court in Nigeria for claiming certain acts or taking certain steps in a proceeding must be complied with and that failure to comply with such conditions renders the steps incompetent and deprives the court of jurisdiction to adjudicate on such matters. He relied on the cases of DREXEL ENERGY AND NATIONAL RESOURCES LTD & 2 ORS v TRANS INTERNATIONAL BANK LTD & 2 ORS (2009) 173 LRCN 114 at 133, MADUKOLU v NKEMDILIM (1962) 2 NSCC (Vol. 2) 374, (1962) 1 ALL NLR (Part 4) 587, OKOROCHA v P.D.P. & ORS (2014) LRCN 70 at 116. He further argued that the leave granted by the trial court on the 14th day of April 2008 was a nullity and subsequently the order granted extending time within which the Appellant could seek leave was an incompetent order and not the proper prayer the Appellant should have asked for. He based his argument on the fact that the order sought by the Appellant on the 30th of November 2009 for extension of time to file his originating summons and deeming same as properly filed and served was not the same as an order extending time within which the Appellant could apply for a judicial review.

The Respondent’s Counsel further argued that the trial judge made two great mistakes;

a. He ought not to have granted the leave because the process before him on 14 April 2008 was incompetent and hence the court lacked jurisdiction to have entertained the suit.

b.,The relief granted on 24 February, 2010 to the Appellant to regularize the originating summons was granted without jurisdiction on the ground that, you cannot put something on nothing and expect it to stand. He placed reliance on MACFOY v U.A.C. (1061) 3 NLR 1405 AT 1409.

He thereafter submitted that the trial judge should have struck out the suit for want of jurisdiction and that the court is without power to review any matter which it had struck out save on application of either party. Additionally, he argued that the matter was merely struck out for incompetence and lack of jurisdiction and on this basis, the court was not functus officio to revisit the case.

He placed reliance on LAKANMI v AKELE (2003) 10 NWLR (Pt. 823) 353; OBI v INE (2008) 155 IRCN 58 at 93 and Order 14 Rule 10 of the Federal High Court Rules 2001. Furthermore, he submitted that the setting aside order of the trial court on the 14th of April 2008 had invalidated the extension of time order granted by the trial court on the 24th day of February 2010 because it had no structure to stand on.

In reply, the Appellants’ counsel contended that the arguments of the Respondent’s counsel were misconceived and flawed in law and fact. He argued that the originating summons, even if erroneous as contended by the Respondent, is valid and binding until set aside on appeal. COURT’S JUDGMENT AND RATIONALE IN RESOLVING ISSUE ONE, THE COURT REFERRED TO ORDER 34 RULE 4 OF THE FEDERAL HIGH COURT RULES 2011 WHICH STATES THAT AN APPLICATION FOR JUDICIAL REVIEW MUST BE BROUGHT WITHIN THREE MONTHS OF THE DATE OF THE OCCURRENCE OF THE SUBJECT OF APPLICATION AND ORDER 48 RULE 4 WHICH GRANTS THE JUDGE DISCRETION IN EXTENDING TIME WITHIN WHICH AN APPLICANT CAN PERFORM AN ACT. FURTHERMORE, THE COURT STATED THAT IT WAS NOT A DISPUTED FACT THAT THE ORIGINATING SUMMONS WAS FILED OUT OF TIME BY THE APPELLANT. THE COURT FURTHER STATED THE ORDER GRANTING LEAVE TO FILE THE ORIGINATING SUMMONS WAS VOID ON THE GROUNDS THAT IT WAS FILED OUT OF TIME AND THE SUBSEQUENT ORDER EXTENDING TIME WITHIN WHICH THE APPELLANT MAY FILE HIS ORIGI NATING SUMMONS HAD NO BASE AND MUST THEREFORE FAIL. THE COURT FURTHER HELD THAT THE ORDER STRIKING OUT THE APPELLANT’S APPLICATION FOR JUDICIAL REVIEW WAS A MERE SURPLUSAGE AND HAD NO PLACE IN LAW BEING PREDICATED ON A VOID ORDER. THE COURT RELIED ON I.B. ANIMASHAUN V OUTA OSUMA & ORS (1972) 4 S.C. 200 AT 212 AND K.AKPENE V BARCLAYS BANK OF NIGERIA LTD & ANOR (1977) 1 S.C. 47 AT PAGES 58-59 WHERE IT WAS STATED THAT IF AN ACT IS VOID THEN IT IS IN LAW A NULLITY WHICH DOES NOT NEED AN ORDER OF THE COURT TO BE SET ASIDE.

ADDITIONALLY, THE COURT STATED THAT WHERE A COURT HAS NO JURISDICTION TO HEAR AND DETERMINE A CASE BUT PROCEEDS TO ADJUDICATE ON THE ISSUE, THE EXERCISE IS IN FUTILITY AND THE DECISION ARRIVED AT AMOUNTS IN LAW TO A NULLITY IRRESPECTIVE OF HOW WELL THE PROCEEDINGS WERE CONDUCTED. THE COURT THEREAFTER STATED THAT A PARTY TAKING A STEP IN THE CAUSE BEFORE THAT COURT DOES NOT WAIVE HIS RIGHT TO OBJECT TO THE COURTS WANT OF JURISDICTION AND RELIED ON THE QUEEN EXPARTE OIJEGBO IKORO OF NGODO V THE GOVERNOR, EASTERN REGOIN & ANOR (1962) 1 ALL NLR 40, UWAIFI V ATTORNEY GENERAL OF BENDEL STATE & ORS (1982) 7 S.C. 124 AT 279. THE COURT IN CONCLUDING, RESOLVED ISSUE ONE AGAINST THE APPELLANT ON ISSUE TWO AND THREE, THE COURT HELD THAT THE BOTH ISSUES HAVE BECOME ACADEMIC QUESTIONS AND IT IS TRITE THAT THE COURTS ARE REFRAINED FROM ANSWERING SUCH QUESTIONS.

THE COURT FINALLY HELD THAT THE APPEAL LACKED MERIT AND SUBSEQUENTLY DISMISSED IT AND AFFIRMED THE DECISION OF THE TRIAL COURT.

For the Respondent:J.A. Asemotar

Reported by Ibukunoluwa Omotorera Owa, Aluko & Oyebode, Lagos

ON CONTRACT BETWEEN PARTIES

Where there is a contract regulating any arrangement between the parties, the main duty of the court is to interpret that contract to give effect to the wishes of the parties as expressed in the contract document. See Oduye v. Nigeria Airways Limited (1987) 2 NWLR (Pt.55) 126. In the construction of documents, the question is not what the parties to the document may have intended to do by entering into that document, but what is the meaning of the words used in the document. See Amizu v. Dr. Nzeribe (1989) 4 NWLR (Pt.118) 755. However, where the meaning of words used is not clear, the court will fall back on the intention behind the words.

JURISDICTION : Whether court has jurisdiction to set aside or change decision made by members of a voluntary association

Chinwo v. Owhonda (2008) 3 NWLR (Pt. 1074) 341 at P. 360. paras. D - E; P. 360, paras. F-H(CA) ISSUE JURISDICTION : Whether court has jurisdiction to set aside or change decision made by members of a voluntary association PRINCIPLE "A court of law has no jurisdiction to set aside or change the decision of a voluntary association made after its usual normal debate and approval. In the instant case, there was a debate on the bye-law before it was approved by the Port Harcourt branch of the Nigerian Bar Association. It was also debated again and approved by the National Executive Committee of the Association. In the circumstance, the trial court was right when it struck out the appellant's suit on the ground that it lacked jurisdiction to determine the suit because the appellant's complaint related to a decision by the members of a voluntary association, which was not justiciable. [Onuoha v. Okafor (1983) 2 SCNLR 244; Abdulkadir v. Mamman (2003) 14 NWLR (Pt. 839) 1]" "It is well settled in our judicial system that courts are restrained in relation to domestic matters of associations like the Nigerian Bar Associations, Nigerian Medical Associations, etc. etc. in the rule in Foss v. Harbottle (1843) 2 Hare 461. The appellant being a legal practitioner, should note that, the purported alleged infringement of his right as a member of the Nigerian Bar Association by virtue of his fundamental rights as a citizen of Nigeria, can only be resolved by a majority decision of its members. In other words, wrongs done to a voluntary association, or disputes arising from a debate, should be resolved by the majority decision of the voluntary club or association of which his view was in the minority." Per Thomas, JCA

Confessional statement article

The Law & You; The Effect of a Confessional Statement under the Nigerian Law By  Evans Ufeli A confessional statement is any statement or remark admitting or acknowledging all facts necessary for conviction of a crime, which would be distinct from a mere admission of certain facts that, if true, would still not, by themselves, satisfy all he elements of the offense. The Evidence Act defines confession as follows: “A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime” Most decided cases in Nigeria defined confession by reference to the provision of Section 28 of the Evidence Act, as “an admission made by the accused stating or suggesting that he committed the crime which is the subject of the charge preferred against him. It is the acknowledgment of the crime by the accused” . On how significant the confession of an accused is, in the case of KARIMU SUNDAY V. THE STATE (2017) LPELR-42259(SC) the court held that “…an accused person can be convicted on his confession alone once it is properly proved and admitted in evidence”. While going further to talk about the effect of a confessional statement even when same is purported to be retracted, the court said: “in those extra-judicial statements, confessional in nature it is to be taken as the best evidence against the accused as they contained admissions of his guilt. An attempt to retract may not augur well especially when  there is  nothing stopping the statement from being admitted and being given the probative value it deserved, being direct and positive. Also not to be lost sight of is that it is sufficient in the circumstance alone to sustain a conviction”. On whether the Court can convict on the basis of a retracted statement, the court also had this to say; “The circumstance of the present case is the existence of a confessional statement retracted at the trial. Can the Court convict on such a confessional statement? The law is that the court can convict on a confessional statement retracted at the trial if satisfied that the accused person to the circumstances which give credibility to the contents of the confession. But it is desirable that; before a conviction can be properly based on such a retracted confession, there should be some corroborative evidence outside the confession which would make it probable that the confession was true”. Stating further on the effect of a denied confessional statement, the court posited that; “Furthermore a denial of a confessional statement by itself is no reason for rejecting the statement. The confession where voluntary, is admissible once the statement complies with the law and rules governing the method for taking it and it is tendered and not objected to by the defence, whereby it is admitted as exhibit, then it is good evidence and no amount of retraction will vitiate its admission as a voluntary statement. The denial is only a matter to be considered in deciding the weight to attach to the confession”   On the nature and importance of confessional statement in criminal trials, Niki Tobi JSC in a case stated that, “the best evidence for purposes of conviction is confession to the commission of the crime by the accused person.” In other words, a free and voluntary confession provides the most satisfactory evidence of guilt for it is generally accepted as a presumption that no rational human being will make admissions prejudicial to his interest and safety if the facts confessed are not true. In the case of SAMUEL AYO OMOJU v THE FEDERAL REPUBLIC OF NIGERIA where the accused, a Pastor, was arraigned and charged with exporting 1.1 kg of cocaine worth ten thousand US Dollars, the Supreme Court acknowledged the following statement of the accused person as a true confessional statement: “I was in the Hotel until Sunday when Areh came with 118 wraps on something inside shinning leather which I swallowed all with water. Around 9.00 pm he came to the Hotel and brought me to the Airport and I checked in one luggage and I climbed upstairs for the final screening and went down… After the screening I was taken downstairs to their office. In the office, I was told that that I am being suspected and I will be under observation until I go to toilet to determine if I am carrying drugs. In their office, I went to toilet about 4.05 am and excreted forty-three (43) pieces of hard drug substance… All in all the total of 118 pieces of hard drug cocaine were excreted by me. The drugs were given to me by Mr. Areh at Dreamland Hotel”. A confession is generally made in writing to the police officer or other law enforcement agent during investigation. However, it can be made orally and any oral confession does not carry less weight than that made in writing once the witness of the one to whom it was made is accepted by the court. Hence, in the case of MOSES JUA v THE STATE, the Supreme Court held that a conviction on the oral confession is proper in law. For a full admission of guilt to qualify as a confession, it must be direct and positive as far as the charges are concerned. Hence it was held in the case of GBADAMOSI v THE STATE, that for a statement of the accused to constitute a confession, the statement must admit or acknowledge that the maker of the statement committed the offences for which he is charged and in so doing be clear, precise and unequivocal. In other words, a statement made under caution by the accused person becomes confessional once it admits the charge or creates the impression that the accused committed the offence charged. Hence, in the case of MUSTAPHA & ORS v THE STATE, the Supreme Court held that once there exists a confessional statement which is direct, cogent and unequivocal to the fact that the accused committed the offence, the prosecution need not prove the offence any longer for the confession is enough proof of the offence beyond reasonable doubt. Types of Confessions There are two types of confessions, namely, Formal or judicial confessions and Informal or Extra Judicial confessions. Judicial confessions are made in court before a Judge or Magistrate or other tribunal. An example is where the accused pleads guilty to a charge upon same being read to him by the court. Hence, a judicial confession can be defined as a plea of guilty on arraignment, if made freely by a person in a fit state of mind. Once the plea of guilty is not made by the accused on arraignment, his right to remain silent is preserved by the provisions of the Constitution, which states that: “No person who is tried for a criminal offence shall be compelled to give evidence at the trial”. It is noteworthy that the provision in section 160 (b) that “failure of any person charged with an offence to give evidence shall not be made subject of any comment by the prosecution” has been repealed by the new Evidence Act 2011. Informal or Extra judicial confessions on the other hand are made out of court during investigations to police officers or other law enforcement agent. Hence, any statement made outside the court by an accused person or a suspect tending to show that he is guilty of the offence for which he is charged or suspected is called an informal confession. Extra judicial confessions, unlike the judicial confessions must pass the strict test of admissibility. Hence, in SAIDU v THE STATE, it was stated that the rules of admissibility of confessional statement of an accused are stringently observed and exclude the admission of such confessional statement by consent or from the bar even if without objection by the defence.

online defamation

http://www.barristerNG.com/liability-online-defamation-nigeria-ejide-godstime-chukwuemeka/