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/