ENGINEER EMMANUEL CHUKWUEMEKA OKEKE v. NNAMDI AZIKIWE
UNIVERSITY TEACHING HOSPITAL (2018) LPELR-43781(CA)
PRACTICE AREA: CIVIL PROCEDURE
INTRODUCTION
According to My Lord Justice OGUNWUMIJU, J.C.A.
delivering the leading judgment in the Court of Appeal case of
OKEKE v. NNAMDI AZIKIWE UNIVERSITY TEACHING HOSPITAL (2018)
LPELR-43781 (CA), it is not the specific name under which
a person is sued that decides whether or not the person is a
juristic person. What determines this issue is whether or not a
natural person exists who bears that name or a similar name or had
in fact hitherto bore that name. If it is a creation of statute, it
is the recognition of that artificial person under an extant law
that is relevant.
FACTS
Engineer Emmanuel Chukwuemeka Okeke (Appellant) entered into a
consultancy agreement with Nnamdi Azikiwe University Teaching
Hospital (Respondent). There was a breakdown in their contractual
relationship hence they resolved to Arbitration (In The Matter Of
Mekon Associates And Nnamdi Azikiwe University Teaching Hospital).
The sole arbitrator Architect Azike Diribe awarded the total sum of
N25, 347,174.52 in favour of Engineer Okeke.
It should be stated that Nnamdi Azikiwe University Teaching
Hospital entered into the consultancy agreement with Engineer
Emmanuel Chukwuemeka Okeke and participated fully in the
Arbitration under the name Nnamdi Azikiwe University Teaching
Hospital.
Armed with the aforementioned Arbitral Award, Engineer Okeke
approached the High Court Anambra State, Awka Judicial Division via
an Originating Application for enforcement of the Arbitral
Award.
The Respondent raised an objection to the jurisdiction of the
Court to enforce the arbitral award against them, claiming that,
Nnamdi Azikiwe University Teaching Hospital is a non-juristic party
and therefore lacks the capacity to sue and be sued. It was argued
that the proper party should have been Nnamdi Azikiwe University
Teaching Hospital Board of Management which is the juristic person
capable of suing and being sued in its corporate name, and can also
acquire, hold, and dispose of immovable property.
The Appellant filed a counter affidavit to the motion of the
Respondent, stating that all agreements entered into by both
parties bear the name of the Respondent as Nnamdi Azikiwe
University Teaching Hospital in which it was sued.
The learned trial judge Hon. Justice Peter N.C. Umeadi delivered
a vexed ruling striking out the suit on the ground that Nnamdi
Azikiwe University Teaching Hospital cannot be sued as it is a
non-juristic person.
Miffed by the vexed ruling Engineer Okeke filed this appeal to
the Enugu Division of the Court of Appeal Coram: HELEN MORONKEJI
OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment), TOM SHAIBU
YAKUBU, J.C.A. and MISITURA OMODERE BOLAJI-YUSUFF, J.C.A
ISSUES FOR DETERMINATION
The appeal was determined on the following issues:
“1. Whether Nnamdi Azikiwe University Teaching Hospital is a
juristic person capable of being sued in its name.
- Whether an arbitral award can be challenged after three months
of its delivery.”
DECISION
In a unanimous decision, the appeal was allowed. The Ruling of
the trial Court delivered on 17th February, 2017 was set aside.
The Court of Appeal, exercising the powers bestowed on it under
Section 15 of the Court of Appeal Act entered Judgment in terms of
the arbitral award in respect of the total sum of N25,347,174.52 in
favour of the Appellant (Engineer Okeke) to be paid by the Nnamdi
Azikiwe University Teaching Hospital Board of Management.
RATIO DECIDENDI
- ACTION – CAPACITY TO SUE AND BE
SUED: Who has the capacity to sue and be sued in an
action
“It is a well settled legal principle that a party who has a
right to commence or defend an action in Court must be a person
known to law, be it a natural person or a creation of statute. In
Carlen (Nig.) Ltd v. Unijos(1994) SCNJ 72, (1994)1 NWLR Pt.323
Pg.631, the Supreme Court held:
“University of Jos being a corporation aggregate has power to sue
and be sued in his corporate name. Whether a corporation or legal
entity created by law as in the instant case has a right to sue and
be sued eo nomine depends on whether the statute creating it
expressly or by implication gives it such power.”
The issue of the status of a person who can approach the Courts for
a settlement of his rights and obligations has been fairly well
settled by the Courts. See Njoku v. UAC (1999) 12 NWLR Pt. 632 Pg.
552 at Pg. 565; Gani Fawehinmi v. NBA (No. 2) (1989) 2 NWLR Pt. 105
Pg. 558 at 595 and Management Enterprises v. Otusanya (1987) 1 NWLR
Pt. 55 Pg. 179, Agbonmagbe Bank v. General Manager, G.B Olivant
(1961) All NLR 116.”Per OGUNWUMIJU, J.C.A. (Pp. 10-11, Paras.
B-A).
- ACTION -MISNOMER: When will an error in a
party’s name be a misnomer
“The relevant provisions of the Nnamdi Azikiwe University
Teaching Hospital Act 2014 are set out as follows:
Section 1: Change of name of Anambra State University of Technology
Teaching Hospital
As from the commencement of this Act the Anambra State University
of Technology Teaching Hospital Management Board (in this Act
referred to as “the Teaching Hospital”) established by the Anambra
State University of Technology Teaching Hospital Management Board
Edict 1988 shall be known and referred to as the Nnamdi Azikiwe
University Teaching Hospital (in this Act referred to as “the
Hospital”).
Section 2: Board of management of the Hospital There shall be
established for the management of the Hospital a Board of
management to be known as the Nnamdi Azikiwe University Teaching
Hospital Board of Management (in this Act referred to as “the
Board”) which shall be a body corporate with perpetual succession
and a common seal and may sue and be sued in its corporate name and
may, for and in connection with the purposes of this Act, acquire,
hold and dispose of movable and immovable property. (Underlining
mine)
Section 3: Composition and functions of the Board. The composition,
functions and powers of the Board established under Section 2 of
this Act shall be as provided for in the University Teaching
Hospitals (Reconstitution of Boards, etc.) Act.
It is thus clear that while the Act created and re-named the
university the Nnamdi Azikiwe University Teaching Hospital, it gave
only the Management Board of the Teaching Hospital the power to sue
and be sued in its corporate name. The Management Board of the
University is thus the juristic personality recognised by the Act
to sue and be sued.
I have to agree with the argument of the Respondent’s counsel on
that particular point of law. I do not find it possible to imply
that even though the Act created the Nnamdi Azikiwe University
Teaching Hospital, the Teaching Hospital in itself is different
from the Management Board and thus ought to sue or be sued its
separate name. This is because Section 2 of the Act states clearly
that it is only the Management Board of the Teaching Hospital that
is the body corporate who can sue and be sued. The name of the
Teaching Hospital created by the Act was impliedly excluded.
It is difficult for me to agree with Mr. Agboola on the argument by
him seeking to distinguish as different legal entities with
capacity, that is, Nnamdi Azikiwe University Teaching Hospital and
the Nnamdi Azikiwe University Teaching Hospital Management Board.
The very wordings of Section 2 of the Act referred to above has
debunked that argument.
Learned Appellant’s counsel referred to Section 5 of the Act to
support the argument that the Respondent as so called can maintain
a binding contract. Let us examine Section 5 of the Act which
provides as follows:-
Section 5 : Vesting of rights, etc
Accordingly-
(a) all the assets and liabilities held or incurred by or on behalf
of the Teaching Hospital shall by virtue of this Act and without
further assurance vest in the Hospital renamed by this Act and be
held by it for the purposes of the Hospital;
(b) all agreements, contracts deeds and other instruments to which
the Teaching Hospital was a party shall, so far as possible and
subject to any necessary modifications, have effect as if the
Hospital re-named by this Act had been party thereto in place of
the Teaching Hospital. Section 5 in my humble view only appears to
VEST all the assets and liabilities of the Anambra State University
of Technology Teaching Hospital Management Board established by
Edict in 1988 in the newly named Teaching Hospital thus repealing
Edict No. 10 of 1988. The 1992 Act clearly created the Management
Board to replace the old Anambra State University of Technology
Management Board, and vested all rights, liabilities, and juristic
personality embodied in the former to the later.
I have looked at Kanu v. First Bank (supra) cited by the
Appellant’s counsel, I cannot find a bearing to this case. In my
humble view, the Nnamdi Azikiwe University Act 2014 which abrogated
the Nnamdi Azikiwe University Law of 1991 is quite different from
the Nnamdi Azikiwe University Teaching Hospital Act.
However, this issue does not end there. The argument of learned
Respondent’s counsel is basically that the suit could not be
maintained since the Appellant chose to sue a non-juristic person.
The principles in the genre of cases decided by the Apex Court in
this regard in my humble view is not that when a legal entity or
personality is wrongly described in a suit or the wrong name is
used in entering an agreement, it automatically transmutes the
legal person into a non-legal person. Granted that the name used to
describe a legal or juristic person may not be correctly or fully
descriptive of that person, it does not detract from the fact that
the person is nonetheless a legal or juristic person. I have to say
that it is not the specific name under which is a person sued that
decides whether or not the person is a juristic person. What
determines that issue is whether or not a natural person exists who
bears that name or a similar name or had in fact hitherto bore that
name. If it is a creation of statute, it is the recognition of that
artificial person under an extant law that is relevant. See Bank of
Baroda v. Iyalabani Co. Ltd (2002) 13 NWLR Pt. 785 Pg. 551. It is
my humble view that there appears here to be a general error
regarding the issue of juristic personality and one of misnomer of
parties especially in a legal process. A misnomer has been
described as occurring where the natural or legal person actually
exists but a wrong name is used to sue. See Emespo Continental v.
Corona S. MBH (2006) 11 NWLR Pt. 991 Pg. 365 at 378. Looking at the
initiating process of the suit, there is no doubt that the
Respondent would be in no doubt that it was the Management Board
that was sued being the name that the Appellant ought to have used.
The Appellant merely got the appropriate name wrong. This to me is
a case of misnomer. See Mailafia v. Veritas Insurance (1986) 4 NWLR
Pt. 38 Pg. 802 at 812.
In this case, there is no doubt that the wrong description of the
Respondent has not misled the Respondent. Also, hearing and
determining the case with the name of the Teaching Hospital used in
entering the contract between the parties instead of the Teaching
Hospital Management Board would not have caused miscarriage of
justice in the circumstances of this case. See Ajadi v. Ajibola
(2004) 16 NWLR Pt. 898 Pg. 91; Bajoda v. Government of Nigeria
(2007) All FWLR Pt. 394 Pg. 273.”Per OGUNWUMIJU, J.C.A. (Pp. 11-16,
Paras. A-E)
- ARBITRATION AND CONCILIATION -ARBITRAL
AWARD: When to make an application to Court to set
aside an award and effect of failure thereof
“Section 29 of the Arbitration and Conciliation Act 2004
provides as follows:-
1. A party who is aggrieved by an arbitral award may within three
months-
a. from the date of the award; or
b. in a case falling within Section 28 of this Act, from the date
the request for additional award is disposed of by the arbitral
tribunal,
by way of an application for setting aside, request the Court to
set aside the award in accordance with Subsection (2) of this
Section.
2. The Court may set aside an arbitral award if the party making
the application furnishes proof that the award contains decisions
on matters which are beyond the scope of the submission to
arbitration so however that if the decisions on matters submitted
for arbitration, can be separated from those not submitted, only
that part of the award which contains decisions on matters not
submitted may be set aside.
3. The Court before which an application is brought under
Subsection (1) of this Section may at the request of a party where
appropriate, suspend proceedings for such period as it may
determine to afford the arbitral tribunal an opportunity to resume
the arbitral proceedings or take such other action to eliminate the
grounds for setting aside of the award.
Thus the law envisages a situation in which the party against whom
an award is made takes a pro-active step to set aside the award
within 3 months of the award being made.
I agree that basically the objection that the Respondent was not a
juristic party in the arbitral proceedings has not affected
intrinsically the award itself. The preliminary objection to the
enforcement of the award by the High Court is limited to the issue
of the juristic personality of the Respondent and not to the merits
of the award itself. The implication is that there is no challenge
to the award itself by the Respondent. Nevertheless, I cannot buy
into the argument of learned Respondent’s counsel that the
objection to the enforcement of the award is not an attempt to set
aside by stealth, the award. If indeed, the Respondent were
aggrieved by the fact that they were not proper parties to the
award or the sums awarded, they were wrong to have folded their
hands from when the additional award was made on 6/5/15 till
19/4/16 when the summons was issued to enforce the award.
I think Section 29 is enforceable to prevent the Respondent from
trying to set aside the award by subterfuge in the circumstances of
this case. In FCMB v. Garba Usman Nagogo (2016) LPELR-40211 (CA)
this Court held as follows:-
“The provision of Section 29 (1) (a) of the Act is to the effect
that a party to an arbitration who is aggrieved by an arbitral
award has a period of three months from the date of the award to
apply to the Court for the award to be set aside. It is a
limitation provision, the essence of which is that the legal right
to apply to set aside an arbitral award is not a perpetual right
but is limited to the period of time given therein. Where the time
given expires, legal proceedings cannot be validly instituted to
set aside the award. The aggrieved party is left with a bare and
impotent cause of action which he cannot enforce by judicial
process. See Egbe v. Adefarasin (1987) 1 NWLR Pt. 471; Ajayi v.
Adebiyi (2012) 11 NWLR Pt.1310 Pg. 169.”
That is also the position of the Supreme Court as established in
Nitel v. Okeke (2017) 1-2 SC Pt.1 Pg. 39 at 48 where the Court held
as follows:-
The 3 months period stipulated in Section 29 of the Arbitration and
Conciliation Act, Laws of the Federation of Nigeria 2004 for filing
an application to set aside the award started to run from the date
the award was published.
It is my view that the Respondent cannot by passive means try to
set aside the award while ignoring the provisions of Section 29 of
the Arbitration and Conciliation Act. The failure to challenge the
legality or merit of the award within 3 months as provided by the
Act prevents the Respondent from doing so by the time it did.”Per
OGUNWUMIJU, J.C.A. (Pp. 27-30, Paras. C-E).
- CONTRACT -ILLEGAL/VOID CONTRACT: Whether
a party who has benefitted from a contract can resile from his
obligation under such contract on the pretext of illegality
“In Kwajaffa v. B.O.N Nig Ltd (2004) 5 SCNJ 121 ;(2004)
LPELR-1727 (SC); (2004) NWLR Pt. 889 Pg. 141, the Appellant entered
a mortgage agreement with the title deeds in his son’s name. The
son was a minor. He sought to declare the agreement a nullity
because his son was incapable of executing a contract as a minor.
The Supreme Court held that a party cannot resile from his
obligations under a contract from which he had benefited because he
never followed what the law required.
Let us even assume without conceding that the Respondent is not a
juristic person because the Respondent deliberately gave the wrong
name to be used in the contract, it is now settled that a party
cannot take refuge from his contractual obligations on the pretext
of his own illegality, in so far as the other party was not aware
of the illegality at the time of the transaction. In the immortal
words of Belgore JSC (as he then was) at page 143:
“Had this appeal succeeded it would have created consequences that
will allow fraud to pay. The appellants’ case was ab initio based
on the illusory nullity caused by their deceit. A Court of law must
always be that justice and equity, self induced nullity will not
help the appellants.”
The most important and relevant ratio in that case pertinent also
to this case is that the Respondent never denied the existence of a
contract between the parties by their pleadings before the Arbitral
Tribunal, and their affidavit evidence to strike out the suit at
the trial Court and the brief of arguments filed in this Court,
neither did the Respondent deny that the Appellant had performed
part of the contract between the parties and that the Respondent
benefitted from the consultancy services of the Appellant. Their
main argument has been that the “body” which contracted with the
Appellant is not a juristic person.
In Sosan v. HFP Engineering (Nig) Ltd (2004) 3 NWLR Pt. 861 Pg.
546, Onalaja JCA went to town on how a Court of equity should deal
with this type of situation. His Lordship stated unequivocally at
page 573 as follows:-
“Apart from the principle of law involved in this case, it is
morally despicable for a person who has benefited from an agreement
to turn round and say that the agreement is null and void. In
pursuance of the principle that law should serve public interest,
the Courts have evolved the technique of construction in
bonampartem”.
In Sosan v. HFP Engineering (Nig) Ltd (supra), the Appellant after
benefitting from a contract, sought to declare the contract void
because the Governor’s consent was not obtained before the
sub-lease agreement was executed by the parties. The contract
between the parties was one which would otherwise be unlawful.
I am also of the firm view that Section 169 of the Evidence Act
2011 on estoppel is very apt to the circumstances of this case. It
states as follows:-
When one person has either by virtue of an existing Court judgment,
deed or agreement, or by his declaration, act or omission,
intentionally caused or permitted another person to believe a thing
to be true and to act upon such belief, neither he nor his
representatives in interest shall be allowed in any proceeding
between himself and such person or such person’s representative in
interest, to deny the truth of that thing.
I cannot agree with the argument of the Respondent’s counsel that
the Appellant should have joined the Nnamdi Azikiwe University
Teaching Hospital Management Board for the enforcement of his
Arbitration award because the Respondent is not a juristic
person.
In the circumstances of this case, I have to interpret the contract
between the parties as one in bonampartem or bonafide. How was the
Appellant to know the minute provisions of the Nnamdi Azikiwe
University Teaching Hospital Act, when the Principal Officer of the
Teaching Hospital namely the Chief Medical Director no less at the
time entered a contract with him in the name of the Teaching
Hospital simplicita and not in the name of the Board.
Bona fide means good faith, that is the standard of conduct
expected from a reasonable person especially in making contracts
and similar actions, acting without fraudulent intent or malice. It
seems to me that the argument put up by the Respondent and accepted
by the learned trial judge that the contract is void because the
Respondent as named is not a legal entity smacks of an overt show
of bad faith at best.
The interpretation of the contract must be done in such a way that
we are bound by equity to ignore a literal interpretation of the
name of the Respondent without the phrase “Management Board” and to
assume that Teaching Hospital an aphorism of saying Teaching
Hospital Management Board which had mobilised the Appellant to
commence consultancy services, part paid contract sums and
submitted itself to arbitration and even paid arbitration fees,
cannot turn around to resile from the contract agreement and the
arbitral proceedings it had submitted to and participated in.”Per
OGUNWUMIJU, J.C.A. (Pp. 18-22, Paras. D-F).
- INTERPRETATION OF STATUTE -SECTION 15 OF THE COURT OF
APPEAL ACT, 2004: Interpretation of Section 15 of
Court of Appeal Act, 2004 as to the conditions that must exist
before the Court can invoke and exercise its powers under the
section
“The Supreme Court in Njideka Ezeigwe v. Chief Benson Chuks
Nwawulu & Ors (2010) LPELR-1201(SC) was emphatic on the
Interpretation of Section 15 of the Court of Appeal Act, 2004 as to
the conditions that must exist before the Court can invoke and
exercise its powers in that Section. The Court per Onnoghen JSC
held as follows:
“Section 15 of the Court of Appeal Act, 2004 provides as follows:-
“The Court of Appeal may, from time to time, make any order
necessary for determining the real question in controversy in the
appeal, and may amend any defect or error in the record of appeal,
and may direct the Court below to inquire into and certify its
findings on any question which the Court of Appeal thinks fit to
determine before final judgment in the appeal, and may make an
interim order or grant any injunction which the Court below is
authorized to make or grant and may direct any necessary inquiries
or accounts to be made or taken, and, generally shall have full
jurisdiction over the whole proceedings as if the proceedings had
been instituted in the Court of Appeal as Court of first instance
and may rehear the case in whole or in part or may remit it to the
Court below for the purposes of such re-hearing or may give such
other directions as to the manner in which the Court below shall
deal with the case in accordance with the powers of that Court, or,
in the case of an appeal from the Court below, in that Court’s
appellate jurisdiction, order the case to be reheard by a Court of
competent jurisdiction.” In interpreting the above provision, this
Court has, in the case of Obi vs INEC (2007) 1 NWLR (Pt. 1046) 465;
Amaechi vs INEC (2008) 5 NWLR (Pt. 1080) 227; Inakoju vs Adeleke
(2007) 4 NWLR (Pt. 1025) 423 and Agbakoba vs INEC (2008) 18 NWLR
(Pt. 1119) 489 stated that for the provision to apply the following
conditions must exist, to wit: (a) that the lower Court or trial
Court must have the legal power to adjudicate in the matter before
the appellate Court can entertain it”, (b) that the real issue
raised by the claim of the appellant at the lower Court or trial
Court must be seen to be capable of being distilled from the
grounds of appeal; (c) that all necessary materials must be
available to the Court for consideration (d) that the need for
expeditious disposal of the case or suit to meet the ends of
justice must be apparent on the face of the materials presented;
and, (e) that the injustice or hardship that will follow if the
case is remitted to the Court below must be clearly manifest.”Per
OGUNWUMIJU, J.C.A. (Pp. 31-33, Paras. E-F).
OTHER AUTHORITIES
AGHOMI v. STATE (2018) LPELR-43991(CA)
Practice Area: Practice and Procedure
RATIO DECIDENDI
- PRACTICE AND PROCEDURE – ABUSE OF COURT/JUDICIAL
PROCESS(ES):Essential elements that would constitute abuse
of Court process
“In other words, I am of the considered view that if the concept
of abuse of Court process were restricted to the filing of multiple
processes before different Courts, for the same or similar reliefs,
the issue of abuse of Court process the Respondent raised by some
of the depositions in its counter affidavit would have fizzled into
nothingness inasmuch as the motion before the lower Court had been
struck out by that Court on 6/4/2017 before the instant motion was
filed in this Court on 8/6/2017. However, the concept of abuse of
Court process is not restricted to the filing of multiple processes
before different Courts for the same or similar reliefs. See in
this regard the case of OGOEJEOFO V OGOEJEOFO (2006) 1 SC (Pt. I)
157 wherein the Supreme Court per Mahmud Mohammed, JSC; (as he then
was) said thus: – “xxxxx My task in resolving the only issue for
determination in this appeal is first to ascertain what constitutes
an abuse of the process of Court and secondly, to determine within
the confine of the evidence adduced by the appellant in the
affidavit in support of her preliminary objection, whether or not a
case of abuse of the process of Court had been made out to justify
the striking out of the respondent’s suit against the appellant.
The questions of what actually constitutes and what does not
constitute an abuse of the process of Court have been considered
and answered by this Court in several of its decisions. One of the
leading cases on this subject in which Karibi-Whyte, JSC reviewed
several earlier decision (sic) of this Court is the case of Saraki
v. Kotoye (1992) 9 NWLR (Pt.264) 156 at 188-189 where he said: –
“The concept of abuse of judicial process is imprecise. It involves
circumstances and situations of infinite variety and conditions.
Its one common feature is the improper use of the judicial process
by a party in litigation to interfere with the due administration
of justice. It is recognised that the abuse of the process may lie
in both a proper or improper use of the judicial process in
litigation. But the employment of judicial process is only regarded
generally as an abuse when a party improperly uses the issue of the
judicial process to the irritation and annoyance of his opponent,
and the efficient and effective administration of justice. This
will arise in instituting a multiplicity of actions on the same
subject matter against the same opponent on the same issues. xxxx
Thus, the multiplicity of actions on the same matter between the
same parties even where there exists a right to bring the action is
regarded as an abuse. The abuse lies in the multiplicity and manner
of the exercise of the right, rather than the exercise of the
right, per se. The abuse consists in the intention, purpose, and
aim of the person exercising the right to harass, initiate and
annoy the adversary, and interfere with the administration of
justice; such as instituting different actions between the same
parties simultaneously in different Courts, even though on
different grounds. xxxxxxx Similarly so held was where two similar
processes were used in respect of the exercise of the same right.
Namely a cross-appeal, and a respondent’s notice. xxxxx This Court
has also held as an abuse of the process, an application for
adjournment by a party to an action to bring an application to
Court for leave to raise issues of fact already decided by Courts
below……..” In Okafor v. A.-G., Anambra State (1991) 6 NWLR (Pt.
200) 659 at 681, Karibi-Whyte, JSC again said on the same subject:
– “It is the law that multiplicity of actions on the same matter
may constitute an abuse of the process of the Court. But this is so
only where the action is between the same parties with respect to
the same subject matter.” Other cases defining what amounts to an
abuse of the process of Court or judicial process include Doma v.
Adamu (1999) 4 NWLR (Pt. 598) 311; Benaplastic v. Vasilyev (1999)
10 NWLR (Pt. 624) 620; A.-G., Ondo State v. A.-G., Ekiti State
(2001) 17 NWLR (Pt. 743) 706 at 771 and African Reinsurance
Corporation v. JDP Construction Nigeria Ltd. (2003) 13 NWLR (Pt.
838) 609 at 635-636. However this Court recently in Mobil
Production Nigeria Unlimited v. Monokpo (2003) 18 NWLR (Pt.852) 346
at 430-431, held that filing of two motions which do not
necessarily seek the same or similar reliefs, though in the same
case between the same parties would not amount to an abuse of the
process of the Court. xxxxxxx.”Per LOKULO-SODIPE, J.C.A. (Pp. 7-11,
Paras. B-B).
- APPEAL -EXTENSION/ENLARGEMENT OF TIME TO
APPEAL: Conditions to be satisfied by an applicant
seeking for extension of time to appeal
“The Applicant (who is seeking the trinity prayers) whether or
not the Respondent is opposed to the motion, by law must not only
give good and substantial reasons for failing to appeal within the
prescribed period but also place before the Court grounds of appeal
which prima facie show good cause why the appeal should be heard.
See Order 6 Rule 9(1) of the 2016 Rules of this Court. In other
words, before the indulgence being sought by the Applicant can be
properly granted (as Courts are not supposed to grant indulgences
to parties as of course) he must give good and substantial reasons
for not lodging his appeal within 90 days (as provided by Section
24(2)(b) of the Court of Appeal Act, 2004) of the delivery of the
ruling on the no case submission in question and must also place
before the Court sufficient materials to enable the Court exercise
its discretion in his favour. The two conditions having regard to
the plethora of cases on the provisions of the Rules of this Court
earlier referred to must co-exist. See the case of WILLIAMS V. HOPE
RISING VOLUNTARY FUNDS SOCIETY (1982) LPELR – 3484 (SC) wherein the
Supreme Court dwelling on the principles guiding the grant of an
application for extension/enlargement of time to appeal; said per
Idigbe, JSC; thus: – “When a Court is called upon to make an order
for extension of time within which to do certain things (i.e.
extension of the time prescribed by the Rules of Court for taking
certain procedural steps), the Court ought always to bear in mind
that Rules of Court must prima facie be obeyed and that it,
therefore, follows that in order to justify the exercise of the
Court’s discretion in extending the time within which a procedural
step has to be taken there must be some material upon which to base
the exercise of that discretion; any exercise of the Court’s
discretion where no material for such exercise has been placed
before the Court would certainly give a party in breach of the
Rules of Court uninhibited right to extension of time and the
provisions as to time within which to take procedural steps set out
in the Rules of Court would indeed, in such circumstances, have no
legal content.” See also the cases of ADIGWE V. FRN (2015) LPELR –
24694 (SC), and YUSUF V. ABUJA INVESTMENT & PROPERTY
DEVELOPMENT CO. LTD (2009) LPELR – 3710 (CA) amongst many
others.”Per LOKULO-SODIPE, J.C.A. (Pp. 28-30, Paras. A-A).
PDP v. AKINOLA & ORS (2018)
LPELR-43968(CA)
Practice Area: Civil Procedure
RATIO DECIDENDI
- ACTION – ORIGINATING
SUMMON(S): Whether originating summons procedure can
be adopted in commencing an action which questions nomination of
candidates for an election by a political party
“In any event, it is now well settled that in cases of this
type, of who won a disputed primary election of a political party,
originating summons procedure is inappropriate as facts are always
likely to be disputed. In Atago v. Nwuche (2013) 3 NWLR (PT 1341)
337 @ 354 the apex Court was unanimous on this, with their
Lordships Galadima and Ngwuta JJ.S.C saying as follows: Galadima
J.S.C. (lead) at p. 354 F-H that: “The Court below rightly declined
to hear the matter because of the conflicting affidavits.
Therefore, since the issue in controversy pertains to determination
of who was lawfully nominated candidate of the 2nd respondent at
the primary of election, the trial Court lacked jurisdiction to
entertain the appellant’s claim without pleadings. However, as a
trial Court, it has the jurisdiction to convert an originating
summons and order pleadings in the matter since the originating
summon is found to be an improper procedure of commencing the
instant case. The learned trial judge failed to do exactly that on
seeing that the affidavits of the parties are conflicting and
irreconcilable.” With his brother Ngwuta J.S.C. adding at p.359 C-D
that: “Issues arising from questioned nomination of candidates for
an election by a political party are usually not devoid of
hostilities. This case is no exception. The affidavits show
contentious facts and the trial Court was right to have held that
the matter cannot be resolved on affidavit. The lower Court rightly
endorsed the said decision.” The apex Court reconfirmed this
position in Olley v. Tunji (2013) 10 NWLR (PT 1362) 275 with
Onnoghen, J.S.C. (as he then was), holding thus at p. 327: “From
the reliefs claimed, it is very clear that the plaintiff seeks to
be declared the winner of the primary election instead of the
appellant. ……… “However, the issue is which of the processes is
most suitable to the resolution of the issues presented in this
case? Is it an ordinary writ of summons or originating summons? We
have already noted the proceedings in which originating summons is
most suited, which excludes the facts leading to the instant case.
It follows that the procedure best designed for the resolution of
the plaintiff’s dispute in this case is that of writ of summons
where pleadings are filed and witnesses called and examined to
enable the Court watch their demeanour and decide on the principle
of balance of probability.” With his brother Ngwuta J.S.C. again
holding, this time in lead judgment at p.323 G-H as follows: “The
affidavit evidence based on which the trial Court made the finding
of fact which was affirmed by the Court below is riddled with
irreconcilable conflicts and contradictions on material facts. This
was not denied by the 1st respondent who merely urged the Court to
treat the matter as mere technicality. The matter is too serious
for the two Courts below to found a decision on a choice made by
1st respondent between the two sets of figures he stated in his
submissions – one by voters who voted for 1st respondent and the
other by INEC’s officials who observed the primaries. …… “Having
resolved the two threshold issues against the 1st respondent as
plaintiff, I declare that the originating summons was dead on
arrival on the facts presented before us, 1st respondent cannot
resort to originating summons to seek redress pursuant to Section
87(9) of the Electoral Act 2010 (as amended). The lower Court
should have converted the process to a writ of summons for the
parties to file and exchange pleadings.” To further underscore the
serious conflict in affidavits on material facts, I here reproduce
the Further, Further Affidavit of 25/11/2015 of appellant deposed
to by Mr. Onya of Onyechi Ikpeazu Chambers which goes thus: 8. As
informed by Victor Kwon Esq., the National Legal Adviser to the 2nd
defendant at PDP National Secretariat, Wadata Plaza, Abuja on 28th
October, 2015 at about 11.am and I verily believe him that: (i) The
unsigned result sheet (Exhibit GB10) attached to the plaintiff’s
originating summons did not emanate from the 2nd defendant.
(ii) The result sheet (Exhibit GB3) attached to the Plaintiff’s
Further and Better affidavit did not emanate from the 2nd defendant
but was merely procured by the plaintiff for the purpose of this
case to cure the inherent defects in the initial result sheet
(Exhibit GB10) exhibited and relied upon by the plaintiff in the
affidavit attached to the originating summons. (iii) The primary
election which the plaintiff is relying on is the one purportedly
conducted by a purported State Executive Committee of the 2nd
defendant in Ondo State. (iv) The plaintiff did not participate in
the primary election conducted by the National Executive of the 2nd
defendant but by a purported State Executive Committee of the 2nd
defendant. Only the 1st defendant participated in the said primary
election and was thus elected accordingly. (v) At the material time
before the primary election in Ondo State, the State, Ward and
Local Government Executive Committees of the 2nd defendant in Ondo
State engaged the 2nd defendant in a dispute based on the
apprehension that the 2nd defendant has irreversibly taken a
decision to dissolve them and set up new committees. They then
decided to embark on parallel congresses and primaries as against
the processes undertaken by the 2nd defendant. (vi) The foregoing
gave rise to multiplicity of suits the foremost of which was the
SUIT NO FHC/ABJ/CS/826/2014 SEJA SUNDAY OLUWASEGUN & Ors v.
DARE ADELEKE before the Federal High Court Abuja Division. A
certified true copy of the originating summons is hereto delivered
as Exhibit N1. (vii) The State Executive Committee then embarked on
their own purported primary election which produced the plaintiff
for the Irele Constituency in order to spite the primaries
conducted by the National Executive Committee of the 2nd defendant.
(viii) the deponents to affidavits exhibited by the plaintiff in
the further Affidavit of 02/04/2015 as Exhibits GB002 a – n, if the
affidavits were truly made by them which fact is hereby denied, are
some of the aforesaid purported members of the Ward Executive
Committee and who are working in concert with the Plaintiff and his
co-travelers to lend credence to their own illegal primary
election. (ix) Exhibit GB004 relied on at paragraph 9 of the
Plaintiff’s Further Affidavit of 02/04/2015 is not a document of
the 2nd defendant and does not contain the venue for the 2nd
defendant’s primary elections. (x) Waheed Ganiyu who is an INEC
representative was not and could not have been the 2nd defendant’s
Electoral Officer for the primary election stated in paragraph 5 of
the Plaintiff’s Further Affidavit filed on 02/04/2014. The 2nd
defendant appoints its Returning Officer and Electoral Officer and
an INEC representative does not have the vires to sign 2nd
defendant’s result sheet. (xi) Seriki Akinyemi was not the 2nd
defendant’s Returning Officer. (xii) Exhibits GB7, GB2, GB3 relied
upon at paragraph 2(a) of the Plaintiff’s Further and Better
Affidavit filed on the 30/04/2015 did not emanate from the 2nd
defendant. (xiii) By virtue of Article 34(3) and 41(f) of the 2nd
defendant’s Guidelines, the decision of the National Executive
Committee through the National Working Committee of the 2nd
defendant is final and binding on all aspirants, officers and
organs of the party with respect to matters of primary election.
(xiv) That upon the victory of the 1st defendant, at the duly
conducted primaries of the 2nd defendant and after the approval and
ratification of same by the National Working Committee of the 2nd
defendant, the 2nd defendant duly forwarded his name to the 3rd
defendant. A certified true copy of the letter and the list of 2nd
defendant’s candidates attached is hereto delivered as Exhibit N2.
(xv) The purported report exhibited by the 2nd defendant in its
Affidavit as Exhibit INEC 1 is not referring to the primary
election conducted by the National Executive of the 2nd defendant.
9. I know that Exhibit INEC 1 (the report) and the exhibits relied
on by the plaintiff are contrived to help the case of the Plaintiff
and are not documents to be relied or believed.10. I know that
Exhibit INEC 1 stated that accreditation started at exactly 4.05pm
and the election began at exactly 4.16pm and ended at 4.30pm while
the fourteen affidavits exhibited and relied upon as Exhibit GB002
(a) – (n) in the Plaintiff’s Further Affidavit of 02/04/2015 all
stated at paragraph 9 thereof that at about 3.00pm the Returning
officer had declared the Plaintiff as the winner of the primary
election. 11. Upon studying the laughable documents above, I
invited the 1st defendant to our office at plot 10 David Dodo
Street, Gwarimpa on 30th October, 2015 at 12.30pm to discuss the
matter and he informed me and I verily believe him as follows: (i)
That he never attended nor participated at the primary election
conducted by the purported State Executive Committee of the 2nd
defendant in Ondo State which produced the plaintiff. (ii) That his
lawyers had written to the said State Executive of Ondo State on
the invalidity of their exercise and their response thereto, the
State Executive Committee on 4th December, 2014 wrote his lawyer
confirming that the plaintiff emerged from the primary election
conducted by the said State Executive in Ondo State. (iii) That the
said letter confirms that the primary election which purportedly
produced the Plaintiff was the one conducted by the State Executive
which the defendant stayed away from. A copy of the said letter is
hereto attached delivered as Exhibit N3. 12. I was informed by Dr.
Onyechi Ikpeazu SAN, lead counsel for the 2nd defendant at Plot 10
Dodo Street, Gwarimpa, Abuja at about 2.00pm on 30th October and I
verily believe him, that a primary election conducted by a State
Executive of a political party is an illegality as has been settled
by a plethora of Supreme Court decisions. On the evidence of the
foregoing and all that have been said earlier on, I have no
hesitation in holding that Mohammed J., was wrong in trying to
determine this action by originating summons. His Lordship ought to
have ordered pleadings given the very hostile nature of the case
which necessitated even plaintiff/1st respondent filing as much as
five affidavits to join issues with the defendants.”Per UGO, J.C.A.
(Pp. 30-39, Paras. A-B).
PHILIP v. AKINOLA & ORS (2018)
LPELR-43966(CA)
Practice Area: Civil Procedure
RATIO DECIDENDI
- ACTION -ORIGINATING SUMMON(S): When
pleading will be ordered in an action commenced by originating
summons
“The fact of filing counter affidavits to an originating summons
cannot by any means amount in law to a waiver of the right of the
party so filing to ask for pleadings and adduction of oral evidence
nor the duty on the Court to so order. On the contrary, the fact
that counter affidavits have been filed showing disagreement
between parties on material issues in the case is the more reason
why pleadings should be ordered and oral evidence adduced. The
rationale behind the rule is the need to ensure fair trial; because
where affidavits are in conflict and there are no materials before
the Court by way of documents to resolve the conflict, the Court
cannot randomly and mechanically accredit one side and discredit
the other. That is also the purport of the rule in the celebrated
case of Falobi v. Falobi (1976) NMLR 168 which to all intents and
purposes has the same foundation with the rule in issue here of
converting originating summons to ordinary summons by ordering
pleadings and asking for adduction of oral evidence where
affidavits filed are in conflict on material issues. In Falobi’s
case the Supreme Court held on this point thus at p.178:
“We have pointed out on numerous occasions that when a Court is
faced with affidavits which are irreconcilably in conflict, the
Judge hearing the case, in order to resolve the conflict properly,
should first hear oral evidence from the deponents or such other
witnesses as the parties may be advised to call. It does not matter
whether none of the parties asked to be allowed to cross-examine
any of the deponents or to call any witness. Such omission by the
parties should not be taken to amount to consent that affidavit
evidence should be used in such circumstances. Akinsete v.
Akindutire (1966) ALL NLR 147 @ 148;, Eboh & Ors v.Oki &
Ors (1976) NMLR 168 @ 118, Olu-Ibukun & Anor v. Olu-Ibukun
(1974) 2 S.C. 41, 48; Uku & Ors v. Okumagba & Ors (1974) 2
S.C. 35, 56, 64-65.” (Emphasis mine.)
It is in recognition of the importance of this principle of law to
the fairness of trials that the National Assembly of Nigeria found
it necessary, for the first time, to codify this rule in Section
116 of the extant Evidence Act 2011. This new provision reads as
follows:
116. When there are before a Court affidavits that are
irreconcilably in conflict on crucial facts the Court shall for the
purpose of resolving the conflict arising from the affidavit
evidence ask the parties to proffer oral evidence as to such facts,
and shall hear any such oral evidence, of the deponents of the
affidavits and such other witnesses as may be called by the
parties. (Emphasis mine.)
This provision, and before it the common law principle in Falobi v.
Falobi and Doherty v. Doherty (1968)NMLR 241 did not leave the
trial Judge with a discretion neither can parties legally waive the
need for pleadings and ordering of oral evidence where affidavits
are seriously in conflict. The provision it should be noted employs
the mandatory ‘shall’.” Per UGO, J.C.A. (Pp. 42-44, Paras.
B-E).
- LEGISLATION – PUBLIC OFFICERS (PROTECTION)
ACT/LAW: Whether the Public Officers Protection Act
applies to a political party
“The second issue which appellant also tagged jurisdictional is
that respondent’s summons challenged the actions of INEC which in
counsel’s view is a public officer protected by Section 2 of the
Public Officers Protection Act and since the action was not filed
within three months of the accrual of the cause of action, it was
caught by that Law and so denied the lower Court of jurisdiction.
While it is true that a Limitation Law where applicable affects not
only the action but also denies the Court of jurisdiction,
While it is true that a Limitation Law where applicable affects
not only the action but also denies the Court of jurisdiction, I
fail to see the application of Public Officers Protection Act here.
The primary election of 29/11/2014 appellant is relying for his
three months’ calculation was not organized by INEC but by PDP
which is not by any stretch of imagination a Public office or
public officer. How then can any calculation be founded on that
date? Appellant’s argument is a complete non sequitur.” Per UGO,
J.C.A. (Pp. 36-37, Paras. F-E).
DASUKI (RTD) v. FRN (2018) LPELR-43969(CA)
Practice Area: Criminal Law and Procedure
RATIO DECIDENDI
- CONSTITUTIONAL LAW – CONSTITUTIONAL VALIDITY OF
LEGISLATION: Whether Section 232 of the
Administration of Criminal Justice Act, 2015 is inconsistent with
the provisions of Section 36 of the Constitution
“I understand the complaint of the appellant herein as
contending that his fundamental right to fair hearing stipulated in
Section 36(4) of the Constitution would be breached by the
statutory provisions of Section 232 of the ACJA 2015. This Court
earlier than now observed that:
“The Constitution of Nigeria 1999 made fundamental provisions for
the right of any accused person charged with criminal offence under
any act or law to enjoy fair hearing during the trial. These
fundamental basic provisions are contained in Sections 36 (4) and
(6) of the said Constitution relied upon by the appellant in his
brief of argument. It is not in doubt that the provision in Section
36(4) is mandatory in all criminal trials and that the accused
shall be entitled to, unless the charge is withdrawn, a fair
hearing in public, within a reasonable time by a Court or Tribunal.
The phrase fair hearing is further expounded in the same Section 36
(6) (b) and (d) in that an accused person must be given adequate
time and facilities for the preparation of his defence. Paragraph 6
(d) of Section 36 is saying that the accused person is entitled to
examine in person or by his counsel, the witnesses called by the
prosecution before any Court or Tribunal and obtain the attendance
and carry out the examination of witnesses to testify on his behalf
before the Court or Tribunal on the same conditions as those
applying to the witnesses called by the prosecution. See Emeka
Offor & Anor vs. Comm. Of Police, Rivers State Police Command.
(2013) LPELR-21170 (CA) per Tsamiya JCA.I agree with the learned
senior counsel for the appellant, that a Court of law properly so
called, has the bounden duty of determining and pronouncing on all
issues properly placed before him for determination. See Honey well
Flour Mills Plc vs. Ecobank Nigeria Ltd (2016) LPELR-40221 (CA) per
Oseji JCA. I equally agree that the lower Court failed and or
omitted to pronounce on the contention of the appellant on whether
Section 232 (3) (b) of the ACJA is unconstitutional or not in view
of the provisions of Section 36 (4) of the Constitution. The
pertinent question would be whether the omission to pronounce on
the issue canvassed occasioned any miscarriage of justice. I have
not in the circumstance been convinced that the omission or failure
to pronounce on the issue led to any miscarriage of justice in the
circumstance of the case. In any event, let me examine whether
indeed and in fact, the provisions of the ACJA 2015 contravened the
constitutional provisions of Section 36 (4) of the CFRN 1999.
For ease of reference, Section 232 of the Administration of
Criminal Justice Act, 2015, provides:
232. (1) A trial for the offences referred to in Subsection (4)
of this section may not, where the Court so determines, be held in
an open Court.
(2) The names, addresses, telephone numbers and identity of the
victims of such offences or witnesses shall not be disclosed in any
record or report of the proceedings and it shall be sufficient to
designate the names of the victims or witnesses with a combination
of alphabets.
(3) Where in any proceedings the Court deems it necessary to
protect the identity of the victim or a witness the Court may take
any or all of the following measures:
(a) receive evidence by video link;
(b) permit the witness to be screened or masked;
(c) receive written deposition of expert evidence; and
(d) any other measure that the Court considers appropriate in the
circumstance.
(4) The provision of this section shall to:
(a) offences under Section 231 of this Act;
(b) offences under the Terrorism (Prevention) Amendment Act;
(c) offences relating to Economic and Financial Crimes;
(d) trafficking in Persons and related offences; and
(e) any other offence in respect of which an Act of the National
Assembly permits the use of such protective measures or as the
Judge may consider appropriate in the circumstances.
(5) Any contravention of the provisions of Subsection (2) of this
section shall be an offence and liable on conviction to a minimum
term of one year imprisonment.
Section 36 (4) on the other hand stipulates that:
Whenever any person is charged with a criminal offence, he shall,
unless the charge is withdrawn, be entitled to a fair hearing in
public within a reasonable time by a Court or Tribunal:
Provided that-
a) a Court or such a Tribunal may exclude from its proceedings
persons other than the parties thereto or their legal practitioners
in the interest of defence, public safety, public order, public
morality, the welfare of persons who have not attained the age of
eighteen years, the protection of the private lives of the parties
or to such extent as it may consider necessary by reason of special
circumstances in which publicity would be contrary to the interest
of justice;
b) if in any proceedings before a Court or such a Tribunal, a
Minister of the Government of the Federation or a Commissioner of
the Government of a State satisfies the Court or Tribunal that it
would not be in the public interest for any matter to be publicly
disclosed, the Court or Tribunal shall make arrangements for
evidence relating to that matter to be heard in private and shall
take such other action as may be necessary or expedient to prevent
the disclosure of the matter.
It is trite that the right to fair hearing must be exercised within
the legal framework provided by law for the hearing of the matter
in contention, and in this case, the criminal matter filed against
the appellant. See Ardo vs. INEC (2017) 13 NWLR (pt. 1583) 450 @
495. The complaint of the appellant to my understanding is that
where the protective measures being sought for the witnesses are
considered and granted, that would be the end of fair and or open
trial. To that end, the case of Ackerman J. S vs. Leepile (1-3)
1986 (2) SA 333, which primarily dealt with secret trial, and the
contribution of Lord Carswell in the English case of R vs. Davies
(supra) where it held amongst others, that:
“An important consideration is the relative importance of the
witness testimony in the prosecution’s case. If it constitutes the
sole or decisive evidence against the defendant, anonymizing, which
prevents or unduly hinders the defendant and his advisers from
taking steps to undermine the credit of the witness is most likely
to operate unfairly.”
To contend that the provisions of the Act, were unconstitutional. I
have religiously studied the two cases cited against the trite
position of the law. The two decisions are of persuasive nature and
therefore relevant. In the latter case, Justice Rodger brought to
the fore the history of shielding witnesses where he stated:
“The intimidation of witnesses is an age old and world-wide
problem. When cicero was intent on prosecuting verres for his reign
of terror in sicily, highly placed henchmen of verres threatened
the fearful and oppressed Sicilian witnesses with dire consequences
if they gave evidence against him.”
Although the Court recognised the right of the Court to inherently
possess the jurisdiction of controlling its proceedings, concluded
that where the protective measures imposed by the Court hampers the
conduct of the defence in a manner and to an extent which was
unlawful and rendering the trial unfair, an appeal on such a trial
would be allowed. The Court however admitted of departures to the
general rule in favour of open justice and confrontation of a
defendant by his accuser, to include where necessity is made out,
and where the witnesses’ reluctance to give evidence in the
ordinary manner is genuine and the extent of his fear justifies a
degree of anonymity.
Coming to the instant case, and by Section 36 (4) of the
Constitution of the Federal Republic of Nigeria 1999 (as amended)
reproduced above, the sacrosanct and immutable stipulation as to
fair hearing are spelt therein. To be considered is whether the
Act, by its very wording or intent conflicted with the
Constitution, and particularly whether the ruling of the lower
Court breached appellant’s right to fair hearing. The learned
counsel to the respondent submitted that the lower Court by its
ruling to wit;
“The prosecution witnesses shall however not be shielded to the
defendant and all legal representatives in this case, including the
Court.”
Meant that the lower Court considered the issues raised before it
to the conclusion that his ruling premised on the provisions of the
ACJA do not conflict with Section 36 (4) of the Constitution. He
further argued that the appellant having not complained about
sufficient time and opportunity to prepare for his defence, or that
his legal representatives and the Court will not be able to see or
to hear the witnesses give evidence and to cross examine them, but
that the public are restrained or shielded from the public, Section
36 (4) of the Constitution cannot be said to have been breached. I
agree with the learned senior counsel for the respondent. Indeed as
posited by the lower Court and the respondent, what is contemplated
here is not a secret trial as the appellant would want the Court to
believe, but one recognised by the very same provisions of Section
36 (4) of the Constitution. It is my humble but firm view that the
provisions of the ACJA, 2015 and in particular Section 232 is meant
to further amplify the provision of Section 36 (4) (b) with respect
to certain enumerated crimes therein, and does not in any way seek
to annoy nor prevent the protective stipulations covered by
Subsections (5) and (6) of the Constitution, and do not conflict at
all. I agree that the decision of Williams JCA in the case of
Chevron Nig. Ltd vs. High Chief Masamibare Lawaz & Ors (supra)
is apt in the instant case. Whereas the English case of R vs. Davis
(supra) and the South African case of Ackerman vs. Leepile (supra)
cited and relied on by the appellant relates to secret trials,
which delimited the identification and cross examination of
witnesses, the lower Court frowned at such a trial, thus only
granting the prosecution, the right to shield the witnesses from
the public for reasons agreeable to him. Not only are the cases
distinguishable from the instant case, and therefore unavailable to
the appellant, it lays down exceptions which were unfavourable to
the appellant. I am in agreement with the respondent that the
contention to the effect that the section of the act under
consideration contravened the Constitution was totally misconceived
and the issue therefore determined against the appellant. In
conclusion, let me re-echo the observation of Ogundare JSC in the
case of Omojola Akinlolu vs. The State (2017) LPELR 42670 SC:
“There is clearly observable, the distinction between a matter of
procedure that affects substantial justice in the trial of a case
and a matter of procedure which in no way affect the justice of the
trial in the latter case it will not affect the trial….” The ACJA
2015 is a special Act, sui generis and the proceedings therefrom
are not to be treated like ordinary civil proceedings where certain
lapses and irregularities may be cured by invoking civil rules. The
fountain of criminal justice proceedings in Nigeria is rooted in
Section 36 (5) of the 1999 Constitution which the Appellant is at
liberty to invoke, but must first allow the trial to be commenced
and concluded. We respectfully refer to the observation of this
Court in the Onyuikes case (supra);
“It is my humble and considered opinion that sufficient safety
values have been built in our judicial system to eliminate
unnecessary destructive objections to the prosecution of cases. The
trial Court should be allowed to hear matters to their logical
conclusions and let the lawyers fish out the errors and take them
to the appellate Courts. That way, matters will be concluded
timeously and parties can move on rather than spend ten years going
back and forth on preliminary issues. The bourgeoning culture of
arresting proceedings, prosecutions, investigations etc., is
becoming quite worrisome. We must stop this impunity of obstruction
of legal processes from progressing.”Per BARKA, J.C.A. (Pp. 49-60,
Paras. F-C).
Culled from LawPavilion
ENGINEER EMMANUEL CHUKWUEMEKA OKEKE v. NNAMDI AZIKIWE
UNIVERSITY TEACHING HOSPITAL (2018)
LPELR-43781(CA)
PRACTICE AREA: CIVIL PROCEDURE
INTRODUCTION
According to My Lord Justice OGUNWUMIJU, J.C.A.
delivering the leading judgment in the Court of Appeal case of
OKEKE v. NNAMDI AZIKIWE UNIVERSITY TEACHING HOSPITAL (2018)
LPELR-43781 (CA), it is not the specific name under which
a person is sued that decides whether or not the person is a
juristic person. What determines this issue is whether or not a
natural person exists who bears that name or a similar name or had
in fact hitherto bore that name. If it is a creation of statute, it
is the recognition of that artificial person under an extant law
that is relevant.
FACTS
Engineer Emmanuel Chukwuemeka Okeke (Appellant) entered into a
consultancy agreement with Nnamdi Azikiwe University Teaching
Hospital (Respondent). There was a breakdown in their contractual
relationship hence they resolved to Arbitration (In The Matter Of
Mekon Associates And Nnamdi Azikiwe University Teaching Hospital).
The sole arbitrator Architect Azike Diribe awarded the total sum of
N25, 347,174.52 in favour of Engineer Okeke.
It should be stated that Nnamdi Azikiwe University Teaching
Hospital entered into the consultancy agreement with Engineer
Emmanuel Chukwuemeka Okeke and participated fully in the
Arbitration under the name Nnamdi Azikiwe University Teaching
Hospital.
Armed with the aforementioned Arbitral Award, Engineer Okeke
approached the High Court Anambra State, Awka Judicial Division via
an Originating Application for enforcement of the Arbitral
Award.
The Respondent raised an objection to the jurisdiction of the
Court to enforce the arbitral award against them, claiming that,
Nnamdi Azikiwe University Teaching Hospital is a non-juristic party
and therefore lacks the capacity to sue and be sued. It was argued
that the proper party should have been Nnamdi Azikiwe University
Teaching Hospital Board of Management which is the juristic person
capable of suing and being sued in its corporate name, and can also
acquire, hold, and dispose of immovable property.
The Appellant filed a counter affidavit to the motion of the
Respondent, stating that all agreements entered into by both
parties bear the name of the Respondent as Nnamdi Azikiwe
University Teaching Hospital in which it was sued.
The learned trial judge Hon. Justice Peter N.C. Umeadi delivered
a vexed ruling striking out the suit on the ground that Nnamdi
Azikiwe University Teaching Hospital cannot be sued as it is a
non-juristic person.
Miffed by the vexed ruling Engineer Okeke filed this appeal to
the Enugu Division of the Court of Appeal Coram: HELEN MORONKEJI
OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment), TOM SHAIBU
YAKUBU, J.C.A. and MISITURA OMODERE BOLAJI-YUSUFF, J.C.A
ISSUES FOR DETERMINATION
The appeal was determined on the following issues:
“1. Whether Nnamdi Azikiwe University Teaching Hospital is a
juristic person capable of being sued in its name.
- Whether an arbitral award can be challenged after three months
of its delivery.”
DECISION
In a unanimous decision, the appeal was allowed. The Ruling of
the trial Court delivered on 17th February, 2017 was set aside.
The Court of Appeal, exercising the powers bestowed on it under
Section 15 of the Court of Appeal Act entered Judgment in terms of
the arbitral award in respect of the total sum of N25,347,174.52 in
favour of the Appellant (Engineer Okeke) to be paid by the Nnamdi
Azikiwe University Teaching Hospital Board of Management.
RATIO DECIDENDI
- ACTION – CAPACITY TO SUE AND BE
SUED: Who has the capacity to sue and be sued in an
action
“It is a well settled legal principle that a party who has a
right to commence or defend an action in Court must be a person
known to law, be it a natural person or a creation of statute. In
Carlen (Nig.) Ltd v. Unijos(1994) SCNJ 72, (1994)1 NWLR Pt.323
Pg.631, the Supreme Court held:
“University of Jos being a corporation aggregate has power to sue
and be sued in his corporate name. Whether a corporation or legal
entity created by law as in the instant case has a right to sue and
be sued eo nomine depends on whether the statute creating it
expressly or by implication gives it such power.”
The issue of the status of a person who can approach the Courts for
a settlement of his rights and obligations has been fairly well
settled by the Courts. See Njoku v. UAC (1999) 12 NWLR Pt. 632 Pg.
552 at Pg. 565; Gani Fawehinmi v. NBA (No. 2) (1989) 2 NWLR Pt. 105
Pg. 558 at 595 and Management Enterprises v. Otusanya (1987) 1 NWLR
Pt. 55 Pg. 179, Agbonmagbe Bank v. General Manager, G.B Olivant
(1961) All NLR 116.”Per OGUNWUMIJU, J.C.A. (Pp. 10-11, Paras.
B-A).
- ACTION -MISNOMER: When will an error in a
party’s name be a misnomer
“The relevant provisions of the Nnamdi Azikiwe University
Teaching Hospital Act 2014 are set out as follows:
Section 1: Change of name of Anambra State University of Technology
Teaching Hospital
As from the commencement of this Act the Anambra State University
of Technology Teaching Hospital Management Board (in this Act
referred to as “the Teaching Hospital”) established by the Anambra
State University of Technology Teaching Hospital Management Board
Edict 1988 shall be known and referred to as the Nnamdi Azikiwe
University Teaching Hospital (in this Act referred to as “the
Hospital”).
Section 2: Board of management of the Hospital There shall be
established for the management of the Hospital a Board of
management to be known as the Nnamdi Azikiwe University Teaching
Hospital Board of Management (in this Act referred to as “the
Board”) which shall be a body corporate with perpetual succession
and a common seal and may sue and be sued in its corporate name and
may, for and in connection with the purposes of this Act, acquire,
hold and dispose of movable and immovable property. (Underlining
mine)
Section 3: Composition and functions of the Board. The composition,
functions and powers of the Board established under Section 2 of
this Act shall be as provided for in the University Teaching
Hospitals (Reconstitution of Boards, etc.) Act.
It is thus clear that while the Act created and re-named the
university the Nnamdi Azikiwe University Teaching Hospital, it gave
only the Management Board of the Teaching Hospital the power to sue
and be sued in its corporate name. The Management Board of the
University is thus the juristic personality recognised by the Act
to sue and be sued.
I have to agree with the argument of the Respondent’s counsel on
that particular point of law. I do not find it possible to imply
that even though the Act created the Nnamdi Azikiwe University
Teaching Hospital, the Teaching Hospital in itself is different
from the Management Board and thus ought to sue or be sued its
separate name. This is because Section 2 of the Act states clearly
that it is only the Management Board of the Teaching Hospital that
is the body corporate who can sue and be sued. The name of the
Teaching Hospital created by the Act was impliedly excluded.
It is difficult for me to agree with Mr. Agboola on the argument by
him seeking to distinguish as different legal entities with
capacity, that is, Nnamdi Azikiwe University Teaching Hospital and
the Nnamdi Azikiwe University Teaching Hospital Management Board.
The very wordings of Section 2 of the Act referred to above has
debunked that argument.
Learned Appellant’s counsel referred to Section 5 of the Act to
support the argument that the Respondent as so called can maintain
a binding contract. Let us examine Section 5 of the Act which
provides as follows:-
Section 5 : Vesting of rights, etc
Accordingly-
(a) all the assets and liabilities held or incurred by or on behalf
of the Teaching Hospital shall by virtue of this Act and without
further assurance vest in the Hospital renamed by this Act and be
held by it for the purposes of the Hospital;
(b) all agreements, contracts deeds and other instruments to which
the Teaching Hospital was a party shall, so far as possible and
subject to any necessary modifications, have effect as if the
Hospital re-named by this Act had been party thereto in place of
the Teaching Hospital. Section 5 in my humble view only appears to
VEST all the assets and liabilities of the Anambra State University
of Technology Teaching Hospital Management Board established by
Edict in 1988 in the newly named Teaching Hospital thus repealing
Edict No. 10 of 1988. The 1992 Act clearly created the Management
Board to replace the old Anambra State University of Technology
Management Board, and vested all rights, liabilities, and juristic
personality embodied in the former to the later.
I have looked at Kanu v. First Bank (supra) cited by the
Appellant’s counsel, I cannot find a bearing to this case. In my
humble view, the Nnamdi Azikiwe University Act 2014 which abrogated
the Nnamdi Azikiwe University Law of 1991 is quite different from
the Nnamdi Azikiwe University Teaching Hospital Act.
However, this issue does not end there. The argument of learned
Respondent’s counsel is basically that the suit could not be
maintained since the Appellant chose to sue a non-juristic person.
The principles in the genre of cases decided by the Apex Court in
this regard in my humble view is not that when a legal entity or
personality is wrongly described in a suit or the wrong name is
used in entering an agreement, it automatically transmutes the
legal person into a non-legal person. Granted that the name used to
describe a legal or juristic person may not be correctly or fully
descriptive of that person, it does not detract from the fact that
the person is nonetheless a legal or juristic person. I have to say
that it is not the specific name under which is a person sued that
decides whether or not the person is a juristic person. What
determines that issue is whether or not a natural person exists who
bears that name or a similar name or had in fact hitherto bore that
name. If it is a creation of statute, it is the recognition of that
artificial person under an extant law that is relevant. See Bank of
Baroda v. Iyalabani Co. Ltd (2002) 13 NWLR Pt. 785 Pg. 551. It is
my humble view that there appears here to be a general error
regarding the issue of juristic personality and one of misnomer of
parties especially in a legal process. A misnomer has been
described as occurring where the natural or legal person actually
exists but a wrong name is used to sue. See Emespo Continental v.
Corona S. MBH (2006) 11 NWLR Pt. 991 Pg. 365 at 378. Looking at the
initiating process of the suit, there is no doubt that the
Respondent would be in no doubt that it was the Management Board
that was sued being the name that the Appellant ought to have used.
The Appellant merely got the appropriate name wrong. This to me is
a case of misnomer. See Mailafia v. Veritas Insurance (1986) 4 NWLR
Pt. 38 Pg. 802 at 812.
In this case, there is no doubt that the wrong description of the
Respondent has not misled the Respondent. Also, hearing and
determining the case with the name of the Teaching Hospital used in
entering the contract between the parties instead of the Teaching
Hospital Management Board would not have caused miscarriage of
justice in the circumstances of this case. See Ajadi v. Ajibola
(2004) 16 NWLR Pt. 898 Pg. 91; Bajoda v. Government of Nigeria
(2007) All FWLR Pt. 394 Pg. 273.”Per OGUNWUMIJU, J.C.A. (Pp. 11-16,
Paras. A-E)
- ARBITRATION AND CONCILIATION -ARBITRAL
AWARD: When to make an application to Court to set
aside an award and effect of failure thereof
“Section 29 of the Arbitration and Conciliation Act 2004
provides as follows:-
1. A party who is aggrieved by an arbitral award may within three
months-
a. from the date of the award; or
b. in a case falling within Section 28 of this Act, from the date
the request for additional award is disposed of by the arbitral
tribunal,
by way of an application for setting aside, request the Court to
set aside the award in accordance with Subsection (2) of this
Section.
2. The Court may set aside an arbitral award if the party making
the application furnishes proof that the award contains decisions
on matters which are beyond the scope of the submission to
arbitration so however that if the decisions on matters submitted
for arbitration, can be separated from those not submitted, only
that part of the award which contains decisions on matters not
submitted may be set aside.
3. The Court before which an application is brought under
Subsection (1) of this Section may at the request of a party where
appropriate, suspend proceedings for such period as it may
determine to afford the arbitral tribunal an opportunity to resume
the arbitral proceedings or take such other action to eliminate the
grounds for setting aside of the award.
Thus the law envisages a situation in which the party against whom
an award is made takes a pro-active step to set aside the award
within 3 months of the award being made.
I agree that basically the objection that the Respondent was not a
juristic party in the arbitral proceedings has not affected
intrinsically the award itself. The preliminary objection to the
enforcement of the award by the High Court is limited to the issue
of the juristic personality of the Respondent and not to the merits
of the award itself. The implication is that there is no challenge
to the award itself by the Respondent. Nevertheless, I cannot buy
into the argument of learned Respondent’s counsel that the
objection to the enforcement of the award is not an attempt to set
aside by stealth, the award. If indeed, the Respondent were
aggrieved by the fact that they were not proper parties to the
award or the sums awarded, they were wrong to have folded their
hands from when the additional award was made on 6/5/15 till
19/4/16 when the summons was issued to enforce the award.
I think Section 29 is enforceable to prevent the Respondent from
trying to set aside the award by subterfuge in the circumstances of
this case. In FCMB v. Garba Usman Nagogo (2016) LPELR-40211 (CA)
this Court held as follows:-
“The provision of Section 29 (1) (a) of the Act is to the effect
that a party to an arbitration who is aggrieved by an arbitral
award has a period of three months from the date of the award to
apply to the Court for the award to be set aside. It is a
limitation provision, the essence of which is that the legal right
to apply to set aside an arbitral award is not a perpetual right
but is limited to the period of time given therein. Where the time
given expires, legal proceedings cannot be validly instituted to
set aside the award. The aggrieved party is left with a bare and
impotent cause of action which he cannot enforce by judicial
process. See Egbe v. Adefarasin (1987) 1 NWLR Pt. 471; Ajayi v.
Adebiyi (2012) 11 NWLR Pt.1310 Pg. 169.”
That is also the position of the Supreme Court as established in
Nitel v. Okeke (2017) 1-2 SC Pt.1 Pg. 39 at 48 where the Court held
as follows:-
The 3 months period stipulated in Section 29 of the Arbitration and
Conciliation Act, Laws of the Federation of Nigeria 2004 for filing
an application to set aside the award started to run from the date
the award was published.
It is my view that the Respondent cannot by passive means try to
set aside the award while ignoring the provisions of Section 29 of
the Arbitration and Conciliation Act. The failure to challenge the
legality or merit of the award within 3 months as provided by the
Act prevents the Respondent from doing so by the time it did.”Per
OGUNWUMIJU, J.C.A. (Pp. 27-30, Paras. C-E).
- CONTRACT -ILLEGAL/VOID CONTRACT: Whether
a party who has benefitted from a contract can resile from his
obligation under such contract on the pretext of illegality
“In Kwajaffa v. B.O.N Nig Ltd (2004) 5 SCNJ 121 ;(2004)
LPELR-1727 (SC); (2004) NWLR Pt. 889 Pg. 141, the Appellant entered
a mortgage agreement with the title deeds in his son’s name. The
son was a minor. He sought to declare the agreement a nullity
because his son was incapable of executing a contract as a minor.
The Supreme Court held that a party cannot resile from his
obligations under a contract from which he had benefited because he
never followed what the law required.
Let us even assume without conceding that the Respondent is not a
juristic person because the Respondent deliberately gave the wrong
name to be used in the contract, it is now settled that a party
cannot take refuge from his contractual obligations on the pretext
of his own illegality, in so far as the other party was not aware
of the illegality at the time of the transaction. In the immortal
words of Belgore JSC (as he then was) at page 143:
“Had this appeal succeeded it would have created consequences that
will allow fraud to pay. The appellants’ case was ab initio based
on the illusory nullity caused by their deceit. A Court of law must
always be that justice and equity, self induced nullity will not
help the appellants.”
The most important and relevant ratio in that case pertinent also
to this case is that the Respondent never denied the existence of a
contract between the parties by their pleadings before the Arbitral
Tribunal, and their affidavit evidence to strike out the suit at
the trial Court and the brief of arguments filed in this Court,
neither did the Respondent deny that the Appellant had performed
part of the contract between the parties and that the Respondent
benefitted from the consultancy services of the Appellant. Their
main argument has been that the “body” which contracted with the
Appellant is not a juristic person.
In Sosan v. HFP Engineering (Nig) Ltd (2004) 3 NWLR Pt. 861 Pg.
546, Onalaja JCA went to town on how a Court of equity should deal
with this type of situation. His Lordship stated unequivocally at
page 573 as follows:-
“Apart from the principle of law involved in this case, it is
morally despicable for a person who has benefited from an agreement
to turn round and say that the agreement is null and void. In
pursuance of the principle that law should serve public interest,
the Courts have evolved the technique of construction in
bonampartem”.
In Sosan v. HFP Engineering (Nig) Ltd (supra), the Appellant after
benefitting from a contract, sought to declare the contract void
because the Governor’s consent was not obtained before the
sub-lease agreement was executed by the parties. The contract
between the parties was one which would otherwise be unlawful.
I am also of the firm view that Section 169 of the Evidence Act
2011 on estoppel is very apt to the circumstances of this case. It
states as follows:-
When one person has either by virtue of an existing Court judgment,
deed or agreement, or by his declaration, act or omission,
intentionally caused or permitted another person to believe a thing
to be true and to act upon such belief, neither he nor his
representatives in interest shall be allowed in any proceeding
between himself and such person or such person’s representative in
interest, to deny the truth of that thing.
I cannot agree with the argument of the Respondent’s counsel that
the Appellant should have joined the Nnamdi Azikiwe University
Teaching Hospital Management Board for the enforcement of his
Arbitration award because the Respondent is not a juristic
person.
In the circumstances of this case, I have to interpret the contract
between the parties as one in bonampartem or bonafide. How was the
Appellant to know the minute provisions of the Nnamdi Azikiwe
University Teaching Hospital Act, when the Principal Officer of the
Teaching Hospital namely the Chief Medical Director no less at the
time entered a contract with him in the name of the Teaching
Hospital simplicita and not in the name of the Board.
Bona fide means good faith, that is the standard of conduct
expected from a reasonable person especially in making contracts
and similar actions, acting without fraudulent intent or malice. It
seems to me that the argument put up by the Respondent and accepted
by the learned trial judge that the contract is void because the
Respondent as named is not a legal entity smacks of an overt show
of bad faith at best.
The interpretation of the contract must be done in such a way that
we are bound by equity to ignore a literal interpretation of the
name of the Respondent without the phrase “Management Board” and to
assume that Teaching Hospital an aphorism of saying Teaching
Hospital Management Board which had mobilised the Appellant to
commence consultancy services, part paid contract sums and
submitted itself to arbitration and even paid arbitration fees,
cannot turn around to resile from the contract agreement and the
arbitral proceedings it had submitted to and participated in.”Per
OGUNWUMIJU, J.C.A. (Pp. 18-22, Paras. D-F).
- INTERPRETATION OF STATUTE -SECTION 15 OF THE COURT OF
APPEAL ACT, 2004: Interpretation of Section 15 of
Court of Appeal Act, 2004 as to the conditions that must exist
before the Court can invoke and exercise its powers under the
section
“The Supreme Court in Njideka Ezeigwe v. Chief Benson Chuks
Nwawulu & Ors (2010) LPELR-1201(SC) was emphatic on the
Interpretation of Section 15 of the Court of Appeal Act, 2004 as to
the conditions that must exist before the Court can invoke and
exercise its powers in that Section. The Court per Onnoghen JSC
held as follows:
“Section 15 of the Court of Appeal Act, 2004 provides as follows:-
“The Court of Appeal may, from time to time, make any order
necessary for determining the real question in controversy in the
appeal, and may amend any defect or error in the record of appeal,
and may direct the Court below to inquire into and certify its
findings on any question which the Court of Appeal thinks fit to
determine before final judgment in the appeal, and may make an
interim order or grant any injunction which the Court below is
authorized to make or grant and may direct any necessary inquiries
or accounts to be made or taken, and, generally shall have full
jurisdiction over the whole proceedings as if the proceedings had
been instituted in the Court of Appeal as Court of first instance
and may rehear the case in whole or in part or may remit it to the
Court below for the purposes of such re-hearing or may give such
other directions as to the manner in which the Court below shall
deal with the case in accordance with the powers of that Court, or,
in the case of an appeal from the Court below, in that Court’s
appellate jurisdiction, order the case to be reheard by a Court of
competent jurisdiction.” In interpreting the above provision, this
Court has, in the case of Obi vs INEC (2007) 1 NWLR (Pt. 1046) 465;
Amaechi vs INEC (2008) 5 NWLR (Pt. 1080) 227; Inakoju vs Adeleke
(2007) 4 NWLR (Pt. 1025) 423 and Agbakoba vs INEC (2008) 18 NWLR
(Pt. 1119) 489 stated that for the provision to apply the following
conditions must exist, to wit: (a) that the lower Court or trial
Court must have the legal power to adjudicate in the matter before
the appellate Court can entertain it”, (b) that the real issue
raised by the claim of the appellant at the lower Court or trial
Court must be seen to be capable of being distilled from the
grounds of appeal; (c) that all necessary materials must be
available to the Court for consideration (d) that the need for
expeditious disposal of the case or suit to meet the ends of
justice must be apparent on the face of the materials presented;
and, (e) that the injustice or hardship that will follow if the
case is remitted to the Court below must be clearly manifest.”Per
OGUNWUMIJU, J.C.A. (Pp. 31-33, Paras. E-F).
OTHER AUTHORITIES
AGHOMI v. STATE (2018) LPELR-43991(CA)
Practice Area: Practice and Procedure
RATIO DECIDENDI
- PRACTICE AND PROCEDURE – ABUSE OF COURT/JUDICIAL
PROCESS(ES):Essential elements that would constitute abuse
of Court process
“In other words, I am of the considered view that if the concept
of abuse of Court process were restricted to the filing of multiple
processes before different Courts, for the same or similar reliefs,
the issue of abuse of Court process the Respondent raised by some
of the depositions in its counter affidavit would have fizzled into
nothingness inasmuch as the motion before the lower Court had been
struck out by that Court on 6/4/2017 before the instant motion was
filed in this Court on 8/6/2017. However, the concept of abuse of
Court process is not restricted to the filing of multiple processes
before different Courts for the same or similar reliefs. See in
this regard the case of OGOEJEOFO V OGOEJEOFO (2006) 1 SC (Pt. I)
157 wherein the Supreme Court per Mahmud Mohammed, JSC; (as he then
was) said thus: – “xxxxx My task in resolving the only issue for
determination in this appeal is first to ascertain what constitutes
an abuse of the process of Court and secondly, to determine within
the confine of the evidence adduced by the appellant in the
affidavit in support of her preliminary objection, whether or not a
case of abuse of the process of Court had been made out to justify
the striking out of the respondent’s suit against the appellant.
The questions of what actually constitutes and what does not
constitute an abuse of the process of Court have been considered
and answered by this Court in several of its decisions. One of the
leading cases on this subject in which Karibi-Whyte, JSC reviewed
several earlier decision (sic) of this Court is the case of Saraki
v. Kotoye (1992) 9 NWLR (Pt.264) 156 at 188-189 where he said: –
“The concept of abuse of judicial process is imprecise. It involves
circumstances and situations of infinite variety and conditions.
Its one common feature is the improper use of the judicial process
by a party in litigation to interfere with the due administration
of justice. It is recognised that the abuse of the process may lie
in both a proper or improper use of the judicial process in
litigation. But the employment of judicial process is only regarded
generally as an abuse when a party improperly uses the issue of the
judicial process to the irritation and annoyance of his opponent,
and the efficient and effective administration of justice. This
will arise in instituting a multiplicity of actions on the same
subject matter against the same opponent on the same issues. xxxx
Thus, the multiplicity of actions on the same matter between the
same parties even where there exists a right to bring the action is
regarded as an abuse. The abuse lies in the multiplicity and manner
of the exercise of the right, rather than the exercise of the
right, per se. The abuse consists in the intention, purpose, and
aim of the person exercising the right to harass, initiate and
annoy the adversary, and interfere with the administration of
justice; such as instituting different actions between the same
parties simultaneously in different Courts, even though on
different grounds. xxxxxxx Similarly so held was where two similar
processes were used in respect of the exercise of the same right.
Namely a cross-appeal, and a respondent’s notice. xxxxx This Court
has also held as an abuse of the process, an application for
adjournment by a party to an action to bring an application to
Court for leave to raise issues of fact already decided by Courts
below……..” In Okafor v. A.-G., Anambra State (1991) 6 NWLR (Pt.
200) 659 at 681, Karibi-Whyte, JSC again said on the same subject:
– “It is the law that multiplicity of actions on the same matter
may constitute an abuse of the process of the Court. But this is so
only where the action is between the same parties with respect to
the same subject matter.” Other cases defining what amounts to an
abuse of the process of Court or judicial process include Doma v.
Adamu (1999) 4 NWLR (Pt. 598) 311; Benaplastic v. Vasilyev (1999)
10 NWLR (Pt. 624) 620; A.-G., Ondo State v. A.-G., Ekiti State
(2001) 17 NWLR (Pt. 743) 706 at 771 and African Reinsurance
Corporation v. JDP Construction Nigeria Ltd. (2003) 13 NWLR (Pt.
838) 609 at 635-636. However this Court recently in Mobil
Production Nigeria Unlimited v. Monokpo (2003) 18 NWLR (Pt.852) 346
at 430-431, held that filing of two motions which do not
necessarily seek the same or similar reliefs, though in the same
case between the same parties would not amount to an abuse of the
process of the Court. xxxxxxx.”Per LOKULO-SODIPE, J.C.A. (Pp. 7-11,
Paras. B-B).
- APPEAL -EXTENSION/ENLARGEMENT OF TIME TO
APPEAL: Conditions to be satisfied by an applicant
seeking for extension of time to appeal
“The Applicant (who is seeking the trinity prayers) whether or
not the Respondent is opposed to the motion, by law must not only
give good and substantial reasons for failing to appeal within the
prescribed period but also place before the Court grounds of appeal
which prima facie show good cause why the appeal should be heard.
See Order 6 Rule 9(1) of the 2016 Rules of this Court. In other
words, before the indulgence being sought by the Applicant can be
properly granted (as Courts are not supposed to grant indulgences
to parties as of course) he must give good and substantial reasons
for not lodging his appeal within 90 days (as provided by Section
24(2)(b) of the Court of Appeal Act, 2004) of the delivery of the
ruling on the no case submission in question and must also place
before the Court sufficient materials to enable the Court exercise
its discretion in his favour. The two conditions having regard to
the plethora of cases on the provisions of the Rules of this Court
earlier referred to must co-exist. See the case of WILLIAMS V. HOPE
RISING VOLUNTARY FUNDS SOCIETY (1982) LPELR – 3484 (SC) wherein the
Supreme Court dwelling on the principles guiding the grant of an
application for extension/enlargement of time to appeal; said per
Idigbe, JSC; thus: – “When a Court is called upon to make an order
for extension of time within which to do certain things (i.e.
extension of the time prescribed by the Rules of Court for taking
certain procedural steps), the Court ought always to bear in mind
that Rules of Court must prima facie be obeyed and that it,
therefore, follows that in order to justify the exercise of the
Court’s discretion in extending the time within which a procedural
step has to be taken there must be some material upon which to base
the exercise of that discretion; any exercise of the Court’s
discretion where no material for such exercise has been placed
before the Court would certainly give a party in breach of the
Rules of Court uninhibited right to extension of time and the
provisions as to time within which to take procedural steps set out
in the Rules of Court would indeed, in such circumstances, have no
legal content.” See also the cases of ADIGWE V. FRN (2015) LPELR –
24694 (SC), and YUSUF V. ABUJA INVESTMENT & PROPERTY
DEVELOPMENT CO. LTD (2009) LPELR – 3710 (CA) amongst many
others.”Per LOKULO-SODIPE, J.C.A. (Pp. 28-30, Paras. A-A).
PDP v. AKINOLA & ORS (2018)
LPELR-43968(CA)
Practice Area: Civil Procedure
RATIO DECIDENDI
- ACTION – ORIGINATING
SUMMON(S): Whether originating summons procedure can
be adopted in commencing an action which questions nomination of
candidates for an election by a political party
“In any event, it is now well settled that in cases of this
type, of who won a disputed primary election of a political party,
originating summons procedure is inappropriate as facts are always
likely to be disputed. In Atago v. Nwuche (2013) 3 NWLR (PT 1341)
337 @ 354 the apex Court was unanimous on this, with their
Lordships Galadima and Ngwuta JJ.S.C saying as follows: Galadima
J.S.C. (lead) at p. 354 F-H that: “The Court below rightly declined
to hear the matter because of the conflicting affidavits.
Therefore, since the issue in controversy pertains to determination
of who was lawfully nominated candidate of the 2nd respondent at
the primary of election, the trial Court lacked jurisdiction to
entertain the appellant’s claim without pleadings. However, as a
trial Court, it has the jurisdiction to convert an originating
summons and order pleadings in the matter since the originating
summon is found to be an improper procedure of commencing the
instant case. The learned trial judge failed to do exactly that on
seeing that the affidavits of the parties are conflicting and
irreconcilable.” With his brother Ngwuta J.S.C. adding at p.359 C-D
that: “Issues arising from questioned nomination of candidates for
an election by a political party are usually not devoid of
hostilities. This case is no exception. The affidavits show
contentious facts and the trial Court was right to have held that
the matter cannot be resolved on affidavit. The lower Court rightly
endorsed the said decision.” The apex Court reconfirmed this
position in Olley v. Tunji (2013) 10 NWLR (PT 1362) 275 with
Onnoghen, J.S.C. (as he then was), holding thus at p. 327: “From
the reliefs claimed, it is very clear that the plaintiff seeks to
be declared the winner of the primary election instead of the
appellant. ……… “However, the issue is which of the processes is
most suitable to the resolution of the issues presented in this
case? Is it an ordinary writ of summons or originating summons? We
have already noted the proceedings in which originating summons is
most suited, which excludes the facts leading to the instant case.
It follows that the procedure best designed for the resolution of
the plaintiff’s dispute in this case is that of writ of summons
where pleadings are filed and witnesses called and examined to
enable the Court watch their demeanour and decide on the principle
of balance of probability.” With his brother Ngwuta J.S.C. again
holding, this time in lead judgment at p.323 G-H as follows: “The
affidavit evidence based on which the trial Court made the finding
of fact which was affirmed by the Court below is riddled with
irreconcilable conflicts and contradictions on material facts. This
was not denied by the 1st respondent who merely urged the Court to
treat the matter as mere technicality. The matter is too serious
for the two Courts below to found a decision on a choice made by
1st respondent between the two sets of figures he stated in his
submissions – one by voters who voted for 1st respondent and the
other by INEC’s officials who observed the primaries. …… “Having
resolved the two threshold issues against the 1st respondent as
plaintiff, I declare that the originating summons was dead on
arrival on the facts presented before us, 1st respondent cannot
resort to originating summons to seek redress pursuant to Section
87(9) of the Electoral Act 2010 (as amended). The lower Court
should have converted the process to a writ of summons for the
parties to file and exchange pleadings.” To further underscore the
serious conflict in affidavits on material facts, I here reproduce
the Further, Further Affidavit of 25/11/2015 of appellant deposed
to by Mr. Onya of Onyechi Ikpeazu Chambers which goes thus: 8. As
informed by Victor Kwon Esq., the National Legal Adviser to the 2nd
defendant at PDP National Secretariat, Wadata Plaza, Abuja on 28th
October, 2015 at about 11.am and I verily believe him that: (i) The
unsigned result sheet (Exhibit GB10) attached to the plaintiff’s
originating summons did not emanate from the 2nd defendant.
(ii) The result sheet (Exhibit GB3) attached to the Plaintiff’s
Further and Better affidavit did not emanate from the 2nd defendant
but was merely procured by the plaintiff for the purpose of this
case to cure the inherent defects in the initial result sheet
(Exhibit GB10) exhibited and relied upon by the plaintiff in the
affidavit attached to the originating summons. (iii) The primary
election which the plaintiff is relying on is the one purportedly
conducted by a purported State Executive Committee of the 2nd
defendant in Ondo State. (iv) The plaintiff did not participate in
the primary election conducted by the National Executive of the 2nd
defendant but by a purported State Executive Committee of the 2nd
defendant. Only the 1st defendant participated in the said primary
election and was thus elected accordingly. (v) At the material time
before the primary election in Ondo State, the State, Ward and
Local Government Executive Committees of the 2nd defendant in Ondo
State engaged the 2nd defendant in a dispute based on the
apprehension that the 2nd defendant has irreversibly taken a
decision to dissolve them and set up new committees. They then
decided to embark on parallel congresses and primaries as against
the processes undertaken by the 2nd defendant. (vi) The foregoing
gave rise to multiplicity of suits the foremost of which was the
SUIT NO FHC/ABJ/CS/826/2014 SEJA SUNDAY OLUWASEGUN & Ors v.
DARE ADELEKE before the Federal High Court Abuja Division. A
certified true copy of the originating summons is hereto delivered
as Exhibit N1. (vii) The State Executive Committee then embarked on
their own purported primary election which produced the plaintiff
for the Irele Constituency in order to spite the primaries
conducted by the National Executive Committee of the 2nd defendant.
(viii) the deponents to affidavits exhibited by the plaintiff in
the further Affidavit of 02/04/2015 as Exhibits GB002 a – n, if the
affidavits were truly made by them which fact is hereby denied, are
some of the aforesaid purported members of the Ward Executive
Committee and who are working in concert with the Plaintiff and his
co-travelers to lend credence to their own illegal primary
election. (ix) Exhibit GB004 relied on at paragraph 9 of the
Plaintiff’s Further Affidavit of 02/04/2015 is not a document of
the 2nd defendant and does not contain the venue for the 2nd
defendant’s primary elections. (x) Waheed Ganiyu who is an INEC
representative was not and could not have been the 2nd defendant’s
Electoral Officer for the primary election stated in paragraph 5 of
the Plaintiff’s Further Affidavit filed on 02/04/2014. The 2nd
defendant appoints its Returning Officer and Electoral Officer and
an INEC representative does not have the vires to sign 2nd
defendant’s result sheet. (xi) Seriki Akinyemi was not the 2nd
defendant’s Returning Officer. (xii) Exhibits GB7, GB2, GB3 relied
upon at paragraph 2(a) of the Plaintiff’s Further and Better
Affidavit filed on the 30/04/2015 did not emanate from the 2nd
defendant. (xiii) By virtue of Article 34(3) and 41(f) of the 2nd
defendant’s Guidelines, the decision of the National Executive
Committee through the National Working Committee of the 2nd
defendant is final and binding on all aspirants, officers and
organs of the party with respect to matters of primary election.
(xiv) That upon the victory of the 1st defendant, at the duly
conducted primaries of the 2nd defendant and after the approval and
ratification of same by the National Working Committee of the 2nd
defendant, the 2nd defendant duly forwarded his name to the 3rd
defendant. A certified true copy of the letter and the list of 2nd
defendant’s candidates attached is hereto delivered as Exhibit N2.
(xv) The purported report exhibited by the 2nd defendant in its
Affidavit as Exhibit INEC 1 is not referring to the primary
election conducted by the National Executive of the 2nd defendant.
9. I know that Exhibit INEC 1 (the report) and the exhibits relied
on by the plaintiff are contrived to help the case of the Plaintiff
and are not documents to be relied or believed.10. I know that
Exhibit INEC 1 stated that accreditation started at exactly 4.05pm
and the election began at exactly 4.16pm and ended at 4.30pm while
the fourteen affidavits exhibited and relied upon as Exhibit GB002
(a) – (n) in the Plaintiff’s Further Affidavit of 02/04/2015 all
stated at paragraph 9 thereof that at about 3.00pm the Returning
officer had declared the Plaintiff as the winner of the primary
election. 11. Upon studying the laughable documents above, I
invited the 1st defendant to our office at plot 10 David Dodo
Street, Gwarimpa on 30th October, 2015 at 12.30pm to discuss the
matter and he informed me and I verily believe him as follows: (i)
That he never attended nor participated at the primary election
conducted by the purported State Executive Committee of the 2nd
defendant in Ondo State which produced the plaintiff. (ii) That his
lawyers had written to the said State Executive of Ondo State on
the invalidity of their exercise and their response thereto, the
State Executive Committee on 4th December, 2014 wrote his lawyer
confirming that the plaintiff emerged from the primary election
conducted by the said State Executive in Ondo State. (iii) That the
said letter confirms that the primary election which purportedly
produced the Plaintiff was the one conducted by the State Executive
which the defendant stayed away from. A copy of the said letter is
hereto attached delivered as Exhibit N3. 12. I was informed by Dr.
Onyechi Ikpeazu SAN, lead counsel for the 2nd defendant at Plot 10
Dodo Street, Gwarimpa, Abuja at about 2.00pm on 30th October and I
verily believe him, that a primary election conducted by a State
Executive of a political party is an illegality as has been settled
by a plethora of Supreme Court decisions. On the evidence of the
foregoing and all that have been said earlier on, I have no
hesitation in holding that Mohammed J., was wrong in trying to
determine this action by originating summons. His Lordship ought to
have ordered pleadings given the very hostile nature of the case
which necessitated even plaintiff/1st respondent filing as much as
five affidavits to join issues with the defendants.”Per UGO, J.C.A.
(Pp. 30-39, Paras. A-B).
PHILIP v. AKINOLA & ORS (2018)
LPELR-43966(CA)
Practice Area: Civil Procedure
RATIO DECIDENDI
- ACTION -ORIGINATING SUMMON(S): When
pleading will be ordered in an action commenced by originating
summons
“The fact of filing counter affidavits to an originating summons
cannot by any means amount in law to a waiver of the right of the
party so filing to ask for pleadings and adduction of oral evidence
nor the duty on the Court to so order. On the contrary, the fact
that counter affidavits have been filed showing disagreement
between parties on material issues in the case is the more reason
why pleadings should be ordered and oral evidence adduced. The
rationale behind the rule is the need to ensure fair trial; because
where affidavits are in conflict and there are no materials before
the Court by way of documents to resolve the conflict, the Court
cannot randomly and mechanically accredit one side and discredit
the other. That is also the purport of the rule in the celebrated
case of Falobi v. Falobi (1976) NMLR 168 which to all intents and
purposes has the same foundation with the rule in issue here of
converting originating summons to ordinary summons by ordering
pleadings and asking for adduction of oral evidence where
affidavits filed are in conflict on material issues. In Falobi’s
case the Supreme Court held on this point thus at p.178:
“We have pointed out on numerous occasions that when a Court is
faced with affidavits which are irreconcilably in conflict, the
Judge hearing the case, in order to resolve the conflict properly,
should first hear oral evidence from the deponents or such other
witnesses as the parties may be advised to call. It does not matter
whether none of the parties asked to be allowed to cross-examine
any of the deponents or to call any witness. Such omission by the
parties should not be taken to amount to consent that affidavit
evidence should be used in such circumstances. Akinsete v.
Akindutire (1966) ALL NLR 147 @ 148;, Eboh & Ors v.Oki &
Ors (1976) NMLR 168 @ 118, Olu-Ibukun & Anor v. Olu-Ibukun
(1974) 2 S.C. 41, 48; Uku & Ors v. Okumagba & Ors (1974) 2
S.C. 35, 56, 64-65.” (Emphasis mine.)
It is in recognition of the importance of this principle of law to
the fairness of trials that the National Assembly of Nigeria found
it necessary, for the first time, to codify this rule in Section
116 of the extant Evidence Act 2011. This new provision reads as
follows:
116. When there are before a Court affidavits that are
irreconcilably in conflict on crucial facts the Court shall for the
purpose of resolving the conflict arising from the affidavit
evidence ask the parties to proffer oral evidence as to such facts,
and shall hear any such oral evidence, of the deponents of the
affidavits and such other witnesses as may be called by the
parties. (Emphasis mine.)
This provision, and before it the common law principle in Falobi v.
Falobi and Doherty v. Doherty (1968)NMLR 241 did not leave the
trial Judge with a discretion neither can parties legally waive the
need for pleadings and ordering of oral evidence where affidavits
are seriously in conflict. The provision it should be noted employs
the mandatory ‘shall’.” Per UGO, J.C.A. (Pp. 42-44, Paras.
B-E).
- LEGISLATION – PUBLIC OFFICERS (PROTECTION)
ACT/LAW: Whether the Public Officers Protection Act
applies to a political party
“The second issue which appellant also tagged jurisdictional is
that respondent’s summons challenged the actions of INEC which in
counsel’s view is a public officer protected by Section 2 of the
Public Officers Protection Act and since the action was not filed
within three months of the accrual of the cause of action, it was
caught by that Law and so denied the lower Court of jurisdiction.
While it is true that a Limitation Law where applicable affects not
only the action but also denies the Court of jurisdiction,
While it is true that a Limitation Law where applicable affects
not only the action but also denies the Court of jurisdiction, I
fail to see the application of Public Officers Protection Act here.
The primary election of 29/11/2014 appellant is relying for his
three months’ calculation was not organized by INEC but by PDP
which is not by any stretch of imagination a Public office or
public officer. How then can any calculation be founded on that
date? Appellant’s argument is a complete non sequitur.” Per UGO,
J.C.A. (Pp. 36-37, Paras. F-E).
DASUKI (RTD) v. FRN (2018) LPELR-43969(CA)
Practice Area: Criminal Law and Procedure
RATIO DECIDENDI
- CONSTITUTIONAL LAW – CONSTITUTIONAL VALIDITY OF
LEGISLATION: Whether Section 232 of the
Administration of Criminal Justice Act, 2015 is inconsistent with
the provisions of Section 36 of the Constitution
“I understand the complaint of the appellant herein as
contending that his fundamental right to fair hearing stipulated in
Section 36(4) of the Constitution would be breached by the
statutory provisions of Section 232 of the ACJA 2015. This Court
earlier than now observed that:
“The Constitution of Nigeria 1999 made fundamental provisions for
the right of any accused person charged with criminal offence under
any act or law to enjoy fair hearing during the trial. These
fundamental basic provisions are contained in Sections 36 (4) and
(6) of the said Constitution relied upon by the appellant in his
brief of argument. It is not in doubt that the provision in Section
36(4) is mandatory in all criminal trials and that the accused
shall be entitled to, unless the charge is withdrawn, a fair
hearing in public, within a reasonable time by a Court or Tribunal.
The phrase fair hearing is further expounded in the same Section 36
(6) (b) and (d) in that an accused person must be given adequate
time and facilities for the preparation of his defence. Paragraph 6
(d) of Section 36 is saying that the accused person is entitled to
examine in person or by his counsel, the witnesses called by the
prosecution before any Court or Tribunal and obtain the attendance
and carry out the examination of witnesses to testify on his behalf
before the Court or Tribunal on the same conditions as those
applying to the witnesses called by the prosecution. See Emeka
Offor & Anor vs. Comm. Of Police, Rivers State Police Command.
(2013) LPELR-21170 (CA) per Tsamiya JCA.I agree with the learned
senior counsel for the appellant, that a Court of law properly so
called, has the bounden duty of determining and pronouncing on all
issues properly placed before him for determination. See Honey well
Flour Mills Plc vs. Ecobank Nigeria Ltd (2016) LPELR-40221 (CA) per
Oseji JCA. I equally agree that the lower Court failed and or
omitted to pronounce on the contention of the appellant on whether
Section 232 (3) (b) of the ACJA is unconstitutional or not in view
of the provisions of Section 36 (4) of the Constitution. The
pertinent question would be whether the omission to pronounce on
the issue canvassed occasioned any miscarriage of justice. I have
not in the circumstance been convinced that the omission or failure
to pronounce on the issue led to any miscarriage of justice in the
circumstance of the case. In any event, let me examine whether
indeed and in fact, the provisions of the ACJA 2015 contravened the
constitutional provisions of Section 36 (4) of the CFRN 1999.
For ease of reference, Section 232 of the Administration of
Criminal Justice Act, 2015, provides:
232. (1) A trial for the offences referred to in Subsection (4)
of this section may not, where the Court so determines, be held in
an open Court.
(2) The names, addresses, telephone numbers and identity of the
victims of such offences or witnesses shall not be disclosed in any
record or report of the proceedings and it shall be sufficient to
designate the names of the victims or witnesses with a combination
of alphabets.
(3) Where in any proceedings the Court deems it necessary to
protect the identity of the victim or a witness the Court may take
any or all of the following measures:
(a) receive evidence by video link;
(b) permit the witness to be screened or masked;
(c) receive written deposition of expert evidence; and
(d) any other measure that the Court considers appropriate in the
circumstance.
(4) The provision of this section shall to:
(a) offences under Section 231 of this Act;
(b) offences under the Terrorism (Prevention) Amendment Act;
(c) offences relating to Economic and Financial Crimes;
(d) trafficking in Persons and related offences; and
(e) any other offence in respect of which an Act of the National
Assembly permits the use of such protective measures or as the
Judge may consider appropriate in the circumstances.
(5) Any contravention of the provisions of Subsection (2) of this
section shall be an offence and liable on conviction to a minimum
term of one year imprisonment.
Section 36 (4) on the other hand stipulates that:
Whenever any person is charged with a criminal offence, he shall,
unless the charge is withdrawn, be entitled to a fair hearing in
public within a reasonable time by a Court or Tribunal:
Provided that-
a) a Court or such a Tribunal may exclude from its proceedings
persons other than the parties thereto or their legal practitioners
in the interest of defence, public safety, public order, public
morality, the welfare of persons who have not attained the age of
eighteen years, the protection of the private lives of the parties
or to such extent as it may consider necessary by reason of special
circumstances in which publicity would be contrary to the interest
of justice;
b) if in any proceedings before a Court or such a Tribunal, a
Minister of the Government of the Federation or a Commissioner of
the Government of a State satisfies the Court or Tribunal that it
would not be in the public interest for any matter to be publicly
disclosed, the Court or Tribunal shall make arrangements for
evidence relating to that matter to be heard in private and shall
take such other action as may be necessary or expedient to prevent
the disclosure of the matter.
It is trite that the right to fair hearing must be exercised within
the legal framework provided by law for the hearing of the matter
in contention, and in this case, the criminal matter filed against
the appellant. See Ardo vs. INEC (2017) 13 NWLR (pt. 1583) 450 @
495. The complaint of the appellant to my understanding is that
where the protective measures being sought for the witnesses are
considered and granted, that would be the end of fair and or open
trial. To that end, the case of Ackerman J. S vs. Leepile (1-3)
1986 (2) SA 333, which primarily dealt with secret trial, and the
contribution of Lord Carswell in the English case of R vs. Davies
(supra) where it held amongst others, that:
“An important consideration is the relative importance of the
witness testimony in the prosecution’s case. If it constitutes the
sole or decisive evidence against the defendant, anonymizing, which
prevents or unduly hinders the defendant and his advisers from
taking steps to undermine the credit of the witness is most likely
to operate unfairly.”
To contend that the provisions of the Act, were unconstitutional. I
have religiously studied the two cases cited against the trite
position of the law. The two decisions are of persuasive nature and
therefore relevant. In the latter case, Justice Rodger brought to
the fore the history of shielding witnesses where he stated:
“The intimidation of witnesses is an age old and world-wide
problem. When cicero was intent on prosecuting verres for his reign
of terror in sicily, highly placed henchmen of verres threatened
the fearful and oppressed Sicilian witnesses with dire consequences
if they gave evidence against him.”
Although the Court recognised the right of the Court to inherently
possess the jurisdiction of controlling its proceedings, concluded
that where the protective measures imposed by the Court hampers the
conduct of the defence in a manner and to an extent which was
unlawful and rendering the trial unfair, an appeal on such a trial
would be allowed. The Court however admitted of departures to the
general rule in favour of open justice and confrontation of a
defendant by his accuser, to include where necessity is made out,
and where the witnesses’ reluctance to give evidence in the
ordinary manner is genuine and the extent of his fear justifies a
degree of anonymity.
Coming to the instant case, and by Section 36 (4) of the
Constitution of the Federal Republic of Nigeria 1999 (as amended)
reproduced above, the sacrosanct and immutable stipulation as to
fair hearing are spelt therein. To be considered is whether the
Act, by its very wording or intent conflicted with the
Constitution, and particularly whether the ruling of the lower
Court breached appellant’s right to fair hearing. The learned
counsel to the respondent submitted that the lower Court by its
ruling to wit;
“The prosecution witnesses shall however not be shielded to the
defendant and all legal representatives in this case, including the
Court.”
Meant that the lower Court considered the issues raised before it
to the conclusion that his ruling premised on the provisions of the
ACJA do not conflict with Section 36 (4) of the Constitution. He
further argued that the appellant having not complained about
sufficient time and opportunity to prepare for his defence, or that
his legal representatives and the Court will not be able to see or
to hear the witnesses give evidence and to cross examine them, but
that the public are restrained or shielded from the public, Section
36 (4) of the Constitution cannot be said to have been breached. I
agree with the learned senior counsel for the respondent. Indeed as
posited by the lower Court and the respondent, what is contemplated
here is not a secret trial as the appellant would want the Court to
believe, but one recognised by the very same provisions of Section
36 (4) of the Constitution. It is my humble but firm view that the
provisions of the ACJA, 2015 and in particular Section 232 is meant
to further amplify the provision of Section 36 (4) (b) with respect
to certain enumerated crimes therein, and does not in any way seek
to annoy nor prevent the protective stipulations covered by
Subsections (5) and (6) of the Constitution, and do not conflict at
all. I agree that the decision of Williams JCA in the case of
Chevron Nig. Ltd vs. High Chief Masamibare Lawaz & Ors (supra)
is apt in the instant case. Whereas the English case of R vs. Davis
(supra) and the South African case of Ackerman vs. Leepile (supra)
cited and relied on by the appellant relates to secret trials,
which delimited the identification and cross examination of
witnesses, the lower Court frowned at such a trial, thus only
granting the prosecution, the right to shield the witnesses from
the public for reasons agreeable to him. Not only are the cases
distinguishable from the instant case, and therefore unavailable to
the appellant, it lays down exceptions which were unfavourable to
the appellant. I am in agreement with the respondent that the
contention to the effect that the section of the act under
consideration contravened the Constitution was totally misconceived
and the issue therefore determined against the appellant. In
conclusion, let me re-echo the observation of Ogundare JSC in the
case of Omojola Akinlolu vs. The State (2017) LPELR 42670 SC:
“There is clearly observable, the distinction between a matter of
procedure that affects substantial justice in the trial of a case
and a matter of procedure which in no way affect the justice of the
trial in the latter case it will not affect the trial….” The ACJA
2015 is a special Act, sui generis and the proceedings therefrom
are not to be treated like ordinary civil proceedings where certain
lapses and irregularities may be cured by invoking civil rules. The
fountain of criminal justice proceedings in Nigeria is rooted in
Section 36 (5) of the 1999 Constitution which the Appellant is at
liberty to invoke, but must first allow the trial to be commenced
and concluded. We respectfully refer to the observation of this
Court in the Onyuikes case (supra);
“It is my humble and considered opinion that sufficient safety
values have been built in our judicial system to eliminate
unnecessary destructive objections to the prosecution of cases. The
trial Court should be allowed to hear matters to their logical
conclusions and let the lawyers fish out the errors and take them
to the appellate Courts. That way, matters will be concluded
timeously and parties can move on rather than spend ten years going
back and forth on preliminary issues. The bourgeoning culture of
arresting proceedings, prosecutions, investigations etc., is
becoming quite worrisome. We must stop this impunity of obstruction
of legal processes from progressing.”Per BARKA, J.C.A. (Pp. 49-60,
Paras. F-C).
Culled from LawPavilion
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