By Emma Elekwa, Onitsha

 

 

The Nigerian Bar Association (NBA), Anambra State chapter, has blamed the growing incidents of insecurity in the country on fragrant disobedience of the constitution by leaders at all levels.

The Chairman of Committee of Chairmen of the eight branches of the body in the state, Kingsley Awuka, disclosed this while briefing newsmen on the body’s plan to embark on mass protest over the lingering strike by the Judiciary Staff Union of Nigeria (JUSUN) on non implementation of financial autonomy and independence of the judicial arm of government.

He said the deliberate refusal of those in authority to abide by the Constitution and laws of the land had also contributed largely to the unruly behaviour of the citizenry, including resorting to self-help.

He said: “One of the major reasons of insecurity is because our leaders have ignored our constitution. If leaders at all levels learn to abide by the Constitution and laws of the land, this insecurity will be tamed.

“People are behaving anyhow,  resorting to self help.

Read Also: Nigeria will become oasis of peace for Africa – Osinbajo

 

‘’Police are no longer there. But the laws are there and we must abide by them, including the judicial autonomy with respect to funding.

“If the Judiciary is effectively working, it will go a long way in fighting insecurity. All we’re saying is that the money approved in the annual budget for the Judiciary should be given to them. If they’re serious in fighting insecurity, then they must be ready to obey the Constitution.”

Awuka explained that the planned protest would be total if government remained adamant to their demands.

“It’s the people’s wishes that government must aspire to do at all times. Our protest will be sustained in every form but within legitimate confines.

“Ours won’t be mere going to the government house. If it requires us declaring operation occupy Awka, we’ll do that. This state is the light of the nation and should be a torch bearer in doing things right.

“We want to support JUSUN because they’re fighting a just cause. This is part of the process that would stem the tide of insecurity in the state,” he added.

 

By Nsa Gill

 

 

The two petitioners and four respondents in a petition before the bye-election tribunal sitting over the December 5, 2020 bye-election for Cross River North Senatorial seat have all closed their cases.

The claimants in the petition marked EPT/CR/SEN/03/2020 are the All Progressive Congress (APC) and its candidates Mr Joe Agi (SAN).

The four respondents included  Steven Odey, Jerigbe Agom Jerigbe, the Peoples Democratic Party (PDP) and the Independent National Electoral Commission (INEC).

The petitioners and respondents agreed with the bye-election tribunal to resume on May 18 2021 for adoption of their separate final addresses.

The Chairman of the three-man Tribunal, Justice Yusuf Ubale Muhammad last Tuesday explained that before the respondents have 14 days from March 31 to submit their final written addresses.

The Petitioners will also take the subsequent 14 days to reply to the respondents’ final addresses and the respondents take another seven days to reply the petitioners’ final address.

The petitioners through their submissions and the single witness argued that the PDP had no candidate as at December 5, 2020 bye-election and that none of the two persons laying claims to the party ticket participated in all stages of the elections as ordered by the constitution and the provisions of the electoral ACT 2010 as Amended.

Agi  during examination by his lead counsel, Mathew Burka had insisted that he was not challenging the results of the election but seeking to prove that all votes given to the PDP were wasted and that having scored the highest valid votes as the first runner-up going by the result declared by INEC, Agi  should be returned duly elected.

The petitioner further presented various judgments of courts showing that as at the day of the election PDP had two candidates for the by-election when the law does not allow a party to nominate more than one candidate.

Agi told the tribunal that INEC after the election decided to declare Steven Odey, the next day being December 2020, as the elected senator in spite of the fact that both Odey and Jerigbe had judgments of coordinate courts  in their favour and documents of INEC including form EC 60 E published on election day showed that the PDP had no candidate.

Read Also: PDP wins Isoko North by-election

 

Witness for the PDP, Sani Yewuri a staff in the National Secretariat of the Party in his testimony agreed that there was a conflict that arose from the party primaries and begot two members laying claim to the party candidacy but that the party knows Steven Odey as the candidate in the election.

He however, contradicted himself when he was cross examined by Counsel to Jerigbe Agom Jerigbe also of the PDP, Mba Ukweni (SAN).

Ukweni (SAN) asked if he was aware of various court judgments that were served on the PDP and the directive by the party hierarchy to the congress committee that lists of delegates as approved in a superior court judgment should be used for the primaries of November 4, 2020, he said yes.

The authentic delegate list as approved by the court is the pillar upon which the candidacy of Jerigbe’s claim is resting on.

The PDP witness also during the tribunal session sparked laughter when  he told the tribunal that he witnessed the party primaries in Ogoja Local Government Area on November 4, 2020 but asked where in Ogoja he was, he said Yala, another local government area.

He also claimed to have witnessed the by-election on December 5,  2020 but Ukweni (SAN)  put it to him that he was in Abuja rather.

Ukweni told The Nation that his remarks at the tribunal regretting that the PDP has disowned Jerigbe was in a lighter mood but explained that the substance of their defence is rather in the preliminary objection to the petition which they argued that the petition lacks merit because it should only qualify for a pre-election matter and that the petitioner has no right to question the matters of the PDP which he is not a member.

Counsel to Agi (SAN), the APC candidate insisted in his submissions through witnesses in the tribunal that the PDP had no candidate in the by-election as at the day of the election.

“As at the December 5, they had two valid court order declaring two of them candidate. In an election, a party cannot have two candidates.

Jerigbe took benefit of a judgment delivered on November4,2020,  while Steven took benefit of the judgment delivered on the December5, 2020.

None of them stood for the election by participating in all stages”.

He referred the tribunal to what Supreme Court said in APC versus Marahfa : – “A party that has no candidate in election, cannot be declared the winner of the election. In this case, the votes credited to the first appellants in 2019 election in Zamfara were wasted votes” adding, “SECTION 258 (14) enacted into the constitution repeated the same thing as section 141, that “An Election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election”.

He noted that if the tribunal accepts the petition, it would consider among other things if any of the PDP candidate participated in all stages of the by-election.

 

OLANREWAJU OSINAIKE, ESQ. v. CORONATION MERCHANT BANK LTD

 

CITATION: (2021) LPELR-53591(CA)

In the Court of Appeal

In the Lagos Judicial Division

Holden at Lagos

ON FRIDAY, 5TH MARCH, 2021

Suit No: CA/L/835/2018

 

Before Their Lordships:

CHIDI NWAOMA UWA  

Justice of the Court of Appeal

TUNDE OYEBANJI AWOTOYE

Justice of the Court of Appeal

BITRUS GYARAZAMA SANGA

Justice of the Court of Appeal

 

Between

OLANREWAJU OSINAIKE, ESQ.

– Appellant(s)

 

And

CORONATION MERCHANT BANK LIMITED

(Substituted for Associated Discount House Limited

By Order of the Court dated 6th day of December, 2016)       

 – Respondent(s)

 

LEADING JUDGMENT DELIVERED BY BITRUS GYARAZAMA SANGA, J.C.A

 

Fact

 

The Respondent had engaged the services of the Appellant for the recovery of debt owed to it by SKIV Concepts Nigeria Ltd. The Respondent had agreed to pay the Appellant 15 percent of the recovered sum as his professional fees. This led the Appellant to commence Suit No: ID/1116/2010 against SKIV for recovery of the debt. The Respondent later on instructed the Appellant to enter appearance for it in Suit No: LD/1693/2011 where the said SKIV Concepts Nigeria Ltd was suing the Respondent for unlawful debit entry in connection with the debt owed. Prior to the determination of the two suits, the Respondent disengaged the Appellant from further representing it in Court. The Appellant forwarded to the Respondent his bill of charges for professional fees and cost in respect of the two suits but the Respondent denied liability. The Appellant thus sued for recovery of professional fees.

The Respondent pleaded that the Appellant did not recover any sum and thus is not entitled to any sum whatsoever. The Respondent however counterclaimed for an account of N500,000.00, being the sum advanced by Respondent to the Appellant as filing fees for the litigation initiated and prosecuted on its behalf by the Appellant. At the end of trial, the trial Court awarded N750,000 as professional fees, cost and expenses due to the Appellant from the Respondent on a quantum meruit basis. The counter claims of the Respondent were dismissed.

Dissatisfied, the Appellant appealed to the Court of Appeal.

 

ISSUES FOR DETERMINATION

The Court of Appeal determined the appeal on the following issues;

1. Whether the trial Court was right when he held that the Appellant’s quantum meruit claim in the sum of N41,427,000.00 for the recovery services rendered by him to the Respondent in respect of Suit No: LD/1116/2010 cannot be maintained.
2. Whether the Appellant as Legal Practitioner acting for the Respondent in Suit No: LD/1693/2010 is entitled to claim for the administrative charges and costs incurred by him while acting as legal practitioner in the suit as distinct and separate from the professional fees charged by him for the legal services rendered in defence of the suit.
3. Whether the trial Court was right when he awarded the sum of N750,000.00 to the Appellant in respect of his claim for services rendered to the Respondent on the basis of the notion of restitutio ad integrum.
4. Whether the trial Court was right when he refused the Appellant’s claim for pre-judgment interest on the ground that the Appellant did not lead evidence to support the claim.

 

APPELLANT’S SUBMISSIONS

In arguing issue one, Appellant’s counsel submitted that the trial Court’s judgment that the Appellant’s quantum meruit claim could not be maintained because Appellant’s remuneration was “15 percent of the recovered sum” but there is no proof that the Appellant recovered any sum. Appellant’s counsel cited Oyo v. Mercantile Bank (1989) 3 NWLR (Pt. 108) 213 at 231where the Court of Appeal held that a legal practitioneris entitled to remuneration for the value of services rendered even though there had been no recovery in the contingency brief, if the client terminates his services. Appellant’s counsel also cited S.B.N. Plc v. OPANUBI (2004) 15 NWLR (Pt. 896) 437in support.

Appellant’s counsel submitted that since the trial Court found that the Appellant meticulously rendered services towards the recovery of the debt before he was debriefed by the Respondent and also that the Appellant complied with Section 16 of the Legal Practitioners Act, the trial Court ought to have granted the Appellant’s claim on quantum meruit. Appellant’s counsel further submitted that it is not the law that quantum meruit is an incidence of assessment applicable only in cases where no rate of remuneration is fixed or agreed upon.

Appellant’s counsel also submitted that the legal practitioner can either sue for damages for breach of contract or payment on quantum meruit, where a client who has gotten the benefit of part performance before he terminates the contract.

On issue two, Appellant’s counsel submitted that in a quantum meruit claim, the Claimant is expected to provide particulars, details and necessary evidence upon which the Court would assess what is reasonable compensation for services rendered by him by virtue of the scope and nature of the matters itemized in the bill. Cited the Supreme Court decision in S.B.N Plc v. Opanubi (supra) at 458 and Oyekanmi v. NEPA (2000) 15 NWLR (Pt. 690) 414 at 429 in support.Appellant’s counsel contended that the Appellant complied with this requirement when he served the Respondent his bill of charges.

In arguing issue three, Appellant’s counsel submitted that since the trial Court held the Appellant carried out some services for the Respondent based on the Respondent’s instruction, then the trial Court ought not to have awarded the sum of N750,000.00 which is too low.

Appellant’s counsel contended that trial Court ought to have considered the level of competence and expertise required in the case, the number of lawyers that participated in the case as indicated in the bill, the Appellant’s age at the bar, the quantum of debt at stake, the prevailing rate of fees charged corporate clients in the very demanding litigation process, especially in a commercial city like Lagos. Appellant’s counsel further submitted that the failure of the Respondent to reply to Appellant’s last letter demanding for his professional fees, constitutes admission in law. Cited: Trade Bank v.

Chami (2003) 13 NWLR (Pt. 836) 158 at 219.

On issue four, Appellant’s counsel submitted that where the Appellant has resorted to litigation for payment of his professional bill of charges and being a purely commercial matter, the Court can still award interest as consequential order even where there is no claim for it. Appellant further contended that the Appellant had in fact pleaded and led evidence as to his entitlement to pre-judgment interest at the rate of 10 percent.

 

RESPONDENT’S SUBMISSIONS

Respondent’s counsel submitted, while arguing issue one, that quantum meruit claim cannot be based on unperformed part of a divisible contract.Cited: Savannah Bank (Nigeria) Plc v. Opanubi (2004) 15 NWLR (Pt. 896) 437. And that debt recovery services which is on contingency fees is an embodiment of divisible contract. Respondent’s counsel submitted that quantum meruit remuneration which a legal practitioner is entitled to under divisible contract of debt recovery, is only with regards to the services expenses and filing fees but not contingency fees in respect to the unrecovered sum. Respondent’s counsel further submitted that parties are bound by the terms of their agreement and as such the Appellant is not entitled to quantum meruit claim on the unrecovered sum.

On issue two, Respondent’s counsel submitted that the law does not allow grant of quantum meruit where the amount claimed is unreasonable. Respondent counsel distinguished Oyekanmi v. NEPA (Supra) from the case at hand and contended that in Oyekanmi’s case there was no objection as to the propriety of the bill of charges but the Respondent vehemently objected to the bill of charges presented by the Appellant at the trial Court. Respondent’s counsel further submitted that the trial Court was correct in its decision that the Appellant cannot charge both administrative cost for appearing in Court, while also charging professional fees for also appearing in Court.

On issue three, Respondent counsel submitted that reasonable compensation deserving of quantum meruit claim is not determined by the means which the Claimant used in doing such work but by the very nature of the work. He contended that the Appellant is not automatically entitled to the amount claimed just because of his particularised level of experience or number of lawyers employed but he must show how these particularised levels of experience and number of lawyers were applied so as to make the amount claimed to be commensurate with the very nature of work done.

On issue four, Respondent’s counsel submitted that a pre-judgment interest can be claimed under: the agreement of parties, a mercantile custom or under equitable ground.So, the Appellant must lead evidence to prove his entitlement. In response to Appellant’s argument that the Respondent failed to traverse Appellant’s claim for pre-judgment interest, Respondent’s counsel submitted that it is not the requirement of the law for a Defendant to traverse all the averments word for word. Cited: Gbaruko v. Gbaruko (2017) LPELR-41749 (CA).

 

RESOLUTION OF ISSUES

The Court in resolving issue one held that quantum meruit is a claim for the reasonable value of services rendered, awarded in an amount considered reasonable to compensate a person who has rendered services in a quasi-contractual relationship. See FBN Plc v. Ozokwere (2014) 3 NWLR (Pt. 1395) 439 at 458. The Court held that a lawyer who has rendered services up to a point before he was debriefed can claim on a quantum meruit. See Oyo v. Mercantile Bank (Supra). The Court held that since the Appellant presented his bill of charges to the Respondent, he has fulfilled the condition set by the Supreme Court in

Savannah Bank Plc v. Opanubi (2004) LPELR-3023 (SC) for a claim on quantum meruit. The Court further held that the issue of “divisible contract” raised by the Respondent was not pleaded nor adjudicated upon at trial and thus discountenanced. The Court also held that a party seeking to argue any fresh issue in the appellate Court, must first obtain leave of Court, which the Respondent has not done. See Hawad Int’l School Ltd v. MIMA Projects Ventures Ltd (No. 2) (2005) 1 NWLR (Pt. 908) 552 at 610.

On issue two, the Court held that in a quantum meruit claim, the Claimant is expected to provide particulars and necessary evidence upon which the Court would assess what is reasonable compensation on quantum meruit for services rendered by him. The Court perused the Appellant’s bill of charges and held that the Appellant served on the Respondent a detailed bill of charges meticulously itemising the extent of the professional services rendered by him. The Court further held that the separate charge classified by the Appellant as Administrative Charge/Cost, was explained at the footnote of the bill.

On issue three, the Court held that the trial Court having found that the Appellant’s claim for the sum of N2,491,800.00 being professional fees, cost and expenses was proved, it was wrong for the trial Court to have awarded the sum of N750,000.00 in its stead. The Court further held that factors such as age at the bar, level of experience, as well as particulars of the nature of the work done are relevant in assessing compensation for a legal practitioner upon quantum meruit.

The Court thus held that the Appellant is entitled to be paid his claim of N2,491,800.00.

On issue four, the Court held that pre-judgment interest is granted where facts are pleaded on the basis of the claim for interest whether as of right as provided under contract, a mercantile custom or under a principle of equity and the requisite evidence is led in support thereof. See Ekwunife v. Wayne (1989) 5 NWLR (Pt. 122) 422 at 445. The Court further held that the Appellant pleaded and led evidence in support of his claim for interest and these pleadings were not controverted by the Respondent and same are therefore, deemed as admitted. See Amuzie v. Asonye (2011) 6 NWLR (Pt. 1241) 19 at 42.

 

HELD

The Court allowed the appeal and granted the reliefs sought by the Appellant.

 

APPEARANCES:

RICHARD ABDULAHI, ESQ.                                  – For Appellants(s)

 

ABDULFATAI MOHAMMED, ESQ.- For Respondent(s)

 

• Compiled by LawPavilion

The Institute of Chartered Mediators and Conciliators (ICMC) will launch her five year Strategic Action Plan, as well as presenting the ICMC Mediation House Project which began in December, 2018

The event will hold on  April 29, 2021 at Dele Oye Hall, Abuja Trade and Convention Centre, KM 8 Umaru Musa Yar’adua Expressway (Airport Road), Abuja.

The institute said COVID-19 protocols will be adhered  to at the event.

It said arrangements had been made for those who desire to join the programme via zoom and that the link will be shared in due course.

The Institute of Chartered Mediators and Conciliators (ICMC) is the professional body of dispute resolution practitioners with the mandate to regulate the practice of Mediation, train prospective dispute resolution practitioners, and encourage organisations and institutions to adopt Mediation and Conciliation as the primary mechanisms for resolving disputes.

 

Mr Ibrahim Mohammed of an Magistrate Court in Wuse Zone 6, Abuja On March 24, 2021 sentenced a lawyer, Eburu Ekwe Barth to two months in prison for contempt in facie curiae. But lawyers are divided as to whether the court acted within its powers, writes ROBERT EGBE.

 

t is a fate that has befallen many litigants, but on March 24, 2021 a member of the Nigerian Bar Association (NBA) Abuja Branch, Mr Eburu Ekwe Barth, was at the receiving end of an angry court.

Barth was hauled to prison following his alleged conviction for contempt by His Worship, Ibrahim Mohammed of a Magistrate Court, Wuse Zone 6, Abuja.

Traditionally, contempts are classified as either in the face of the court (in facie curiae) or not in the face of the court (ex facie curiae).

Barth’s offence was the latter: in facie curiae.

Background

According to several online reports, Mr Mohammed ordered Barth’s arrest for his manner of challenging the magistrate on the summary of a case before the court.

The lawyer was said to have interjected while the magistrate was delivering a ruling on an application by the opposing lawyer.

He allegedly disputed the court’s summary of proceedings, as contained in its ruling, among other things, but his language and conduct was felt to have, among others, impugned the court’s integrity.

Pleas for mercy by lawyers present during the proceedings were of no effect.

Barth was summarily tried, convicted and sentenced Ekwe to two months in prison for contempt in facie curiae.

The lawyer was handcuffed and led out of the courtroom, to the Suleja Correctional Centre.

He was however released 24 hours later, after the order was set aside.

This was confirmed by a statement released by the NBA Abuja Branch, seen by The Nation.

The statement signed by the branch’s Secretary, Eric Ibe, reads:

“I am pleased to inform our esteemed members and the general public that further to the intervention of the Branch Executive ably led by Mr. Bulus Atsen, an order has been given for the release of Mr. Eburu Ekwe Barth and the order for his remand set aside.

“We wish to assure lawyers in Abuja of the commitment of the NBA and lawyers generally to work towards providing the requisite support to lawyers.

“To this extent, I wish to commend the intervention of Learned Silks, Bar Leaders and lawyers including Mr Godspower Eroga, Prof Chidi Anselm Odinkalu, Chidi Ifeonye, Benjamin Sekpe and Maxwell Okpara of the Capital Bar, who played one role or the other towards the release of Eburu Ekwe Barth.”

Contempt

Duhaime’s Law Dictionary defines contempt thus:

“Contempt offences fall within two broad categories, viz., contempt in the face of the court (contempt in facie) and contempts committed outside the court (contempt ex facie).

“A contempt in the face of the court may be broadly described as any word spoken or act done in, or in the precincts of, the court which obstructs or interferes with the due administration of justice or is calculated so to do. Forms of conduct which have been held to constitute such contempt are: assaults committed in court; insults to the court; interruption of court proceedings; and refusal on the part of a witness to be sworn or, having been sworn, refusal to answer.

“Conduct which amounts to contempt outside the court may be described in general terms as words spoken or otherwise published, or acts done, outside court which are intended or likely to interfere with or obstruct the fair administration of justice. Common examples of such contempts are: publications which are intended or likely to prejudice the fair trial or conduct of criminal or civil proceedings; publications which scandalize or otherwise lower the authority of the court; and acts which interfere with or obstruct persons having duties to discharge in a court of justice.”

As is to be expected, lawyers have disagreed as to whether the Abuja Magistrate Court acted in accordance with its powers.

‘Magistrates have no power to deal with contempt in facie curiae’

According to Abuja-based lawyer, Mr Emmanuel Madujibe Chukwu, relying on case law, magistrates have no power to punish contempt in facie curiae.

In his March 24 article published on barristerng.com, Chukwu said only a Superior Court of record, such as a high court, can summarily punish for contempt in facie curiae.

He said: “In contributing my little quota to this heavy issue at hand, I must first deal unkindly with the rude and discourteous character of the defense counsel before the Honourable Court.

“Now, let me point out that it is only a Superior Court of record that has inherent jurisdiction to deal with contempt in facie curiae and punish for the offence summarily. See INEC & Anor V Oguebego & Ors (2017) JELR 37955 (SC).”

The lawyer explained that the Court of Appeal had the opportunity to entertain “this confusing situation in Adeyemi Candid-Johnson V Mrs Esther Edigi (2018) LPELR-45148(CA) where the court held that the Acting Chief Magistrate went beyond its powers and cited a counsel for contempt because the counsel insisted that his submissions before the Court should be placed on record and also refused to answer a question which was put to him by the Court.

“The Magistrate considered the counsel’s conduct to be rude and contemptuous and ordered that he should be detained.

“The Court of Appeal, while condemning the act of the Magistrate held: ‘Apparently, when tempers rose rather meteorically, the respondent, exacerbated by the situation, unleashed this incisive question: ‘When did you leave the law school?’ The response, going by the record, was equally unrelenting: ‘I will refuse to answer that question in the rudest manner.’ It was the refusal to answer this question, according to the record, that broke the camel’s back, and led to the detention of the appellant for contempt of court. It was unfortunate, to say the least, for the respondent, according to the records, to have taken leave of her exalted bench, invited counsel to extra-judicial dialogue, and thereafter descended into the arena of vituperative conflict with him.’

“Achike JCA (as he then was) corroborated his reasoning with my fears and held; ‘It is clearly improper and will expose the Administration of Justice to ridicule if a Magistrate or presiding officer of an inferior Court were invested with such extraordinary powers to provoke extrajudicial verbal exchange with counsel and yet invoke against him the lethal and drastic power to punish for contempt’.

Chukwu added: “Here, it will be said that the law of contempt only exists to uphold and ensure effective Administration of Justice and not for personal glory as we have seen in the case cited above. The power of the Court to punish for contempt must always be exercised to secure and protect the authority of the Court. In fact, the powers should be sparingly exercised and only in serious cases.

“The point I am struggling to make has been settled by the Supreme Court in the case of INEC & Anor V Oguebego & Ors (2017) JELR 37955 (SC) that such arrant words or actions of the contemnor must be capable of interfering with the administration of justice by the court.

“Let me also quickly agree with the Justices of the Apex Court in the above cases that it is only a Superior Court of record that has the inherent jurisdiction to deal with contempt in facie curiae and punish for the offence summarily.

“Could it be safely said that the court did not abuse her powers to order that defense counsel be tried summarily, convicted and handcuffed to a gory place of safety to secure the ego and personal aggrandizement of the presiding officer?”

Falana: Magistrates can punish for contempt in facie curiae

But activist-lawyer Mr. Femi Falana, SAN, disagreed.

According to him, the Abuja Magistrate Court acted within its powers, even though it could have handled the situation more diplomatically.

He noted that in contempt in facie curiae, the ‘judex serves as the Complaint, Prosecutor and Judge’ and the actions of the lawyer was one capable of being cited as contempt, nonetheless, the Magistrate would have simply asked the lawyer to leave the court.

In a statement Falana recalled a similar instance involving the law lord, Lord Denning, as published in the June 1964 edition of the New York Times.

“Tempers may have been slightly ruffled, but decorum prevailed nonetheless in the Court of Appeal today as a protesting woman litigant flung law books at the judges. Vera Beth Stone was conducting her own case. She was refused leave to appeal a judgment on the levying of costs in an unsuccessful action she had brought against the Association of Official Shorthand Writers in which she had charged falsification of transcripts. So she picked up a book in front of her and said:

“This is not a personal matter, but I have to bring this before the court.” The book flew past the ear of Lord Denning, Master of the Rolls, and struck the paneling behind him. Neither he nor either of the two other judges on the dais, Lord Justices Harman and Diplock, showed agitation.

“It does not have to be tomatoes,” Miss Stone continued, and let fly a second book, a bit wider of the mark. “Will you please leave the court!” Lord Denning said politely but firmly. “I shall only come back and throw more books,” Miss Stone replied. “Will you leave?” Lord Denning persisted. Miss Stone surveyed her dwindling library. “I am running out of ammunition,” she said.

“As she was led from the courtroom, she said to Lord Denning: “May I congratulate your lordship upon your coolness under fire.”

In this piece, Ebun-Olu Adegboruwa (SAN) writes on why many lawyers love appearing before Justice Bode Rhodes-Vivour, who retired from the bench of the Supreme court of Nigeria, on March 22.

 

I was very young when I used to hear his name, as State Counsel in the Lagos State Ministry of Justice. He was popular with his adept handling of many criminal cases in court, so he was always in the news. I was thus very glad when he was elevated to the High Court Bench.

Many lawyers love to appear before him, as he was known to be well experienced and very practical in his approach to law and justice, generally.

Then I had my personal experience in a protracted land matter wherein I appeared before him as counsel to the Claimants. He was not given to frivolous adjournments, technical objections and the usual tricks of counsel. He would have read the case file and was well abreast of the pleadings of the parties, such that he would confront you as counsel and challenge you to do the needful to achieve justice for all.

Then came the case of Gani Adams (now Aare Ona Kankanfo). Adams was arraigned before the Magistrate’s Court, Ebute-Metta, on trumped up charges and Chief Gani Fawehinmi, SAN, had his retainership. We filed an application for the enforcement of his fundamental rights and it was assigned to the Honourable Justice Rhodes-Vivour (as he then was).

Before the application could be heard, members of the Oodua Peoples’ Congress who could not wait for due process of law, stormed the Magistrate’s Court in one of the sittings, in order to rescue and free Gani Adams, right inside the court. Chief Fawehinmi was furious, as he would not tolerate any assault on the rule of law.

On the day the application for the enforcement of fundamental rights was to be heard by Hon Jusice Rhodes-Vivour, Chief Fawehinmi called me and instructed that we should withdraw our appearance in the case, in protest of the invasion of the Magistrate’s Court by members of OPC. I was a very young lawyer, with little or no experience. The case was adjourned for definite hearing, so how do I go before the judge to ask him to allow me to walk out of the case? Well, I had no choice in the matter, as Chief Fawehinmi was waiting for the outcome of the proceedings, with journalists all over the court.

Read Also: Supreme Court Justice, Bode Rhodes-Vivour retires

 

When the case was called, I could not speak audibly, as I began to stammer, muttering some things only to myself. Hon. Justice Rhodes-Vivour kept asking me to speak up, to the extent that he asked me to move forward, so he could hear me clearly.

Of course, My Lord must have read about the court invasion, as it was all over the news media. I finally got some courage to explain that my principal, Chief Fawehinmi, had instructed that I should withdraw from the case. My Lord asked me why and I explained to him. He then asked me why I had to stammer to say that, as that is what he would have expected of Gani, knowing his antecedents.

His elevation to the Court of Appeal was greeted with wide acceptance, given his record on the High Court Bench. The Honourable Justice Olabode Rhodes-Vivour distinguished himself in the Court of Appeal as a consummate jurist and got his deserved elevation to the Supreme Court, thereafter.

My Lord is  leaving the Supreme Court, walking tall and proud, of an illustrious career at the Bar and the Bench, having helped to reform the legal profession in Nigeria. Together with his amiable and ageless wife, Aunty Doyin Rhodes-Vivour, SAN, My Lord adopted our family into his, becoming a worthy role model to us and indeed to so many others across the globe.

No doubt, the Supreme Court, the legal profession and indeed Nigeria, will miss this great mind, given his wealth of experience, intellectual depth and his transparent and result-oriented approach to justice administration generally. I dare say that a legal colossus has left the legal firmament of Nigeria.

It is a thing of joy that My Lord has fought a good fight and has finished the race without blemish.

Happy retirement, My Noble Lord.

THE EXPORT-IMPORT BANK OF THE USA v. NIGERIAN DEPOSIT INSURANCE CORPORATION

CITATION: (2021) LPELR-53399(CA)

In the Court of Appeal

In the Lagos Judicial Division

Holden at Lagos

ON TUESDAY, 16TH MARCH, 2021

Suit No: CA/L/372/2011

 

Before Their Lordships:

JOSEPH SHAGBAOR IKYEGH

JUSTICE, COURT OF APPEAL

ONYEKACHI AJA

OTISI JUSTICE, COURT OF APPEAL

ABDULLAHI MAHMUD

BAYERO JUSTICE, COURT OF APPEAL

 

Between

THE EXPORT-IMPORT BANK OF THE UNITED STATES OF AMERICA

– Appellant(s)

 

And

NIGERIAN DEPOSIT INSURANCE CORPORATION(Qua Provisional Liquidator of Gulf Bank Plc)        – Respondent(s)

 

LEADING JUDGMENT DELIVERED BY ONYEKACHI AJA OTISI, J.C.A.

 

 

FACTS

By a Commercial Invoice and Original Final Invoice No WTI/FCT/NG/10/2003A dated 21/10/2003, the Widespread Trading International Inc (WTII) had a contract with FC and T Projects Ltd (FC & T), a private limited liability Company based in Nigeria, whereby WTII agreed to sell and FC & T agreed to buy 25 refurbished 86/90 Forty Foot GMC/RTS Transit Buses (the goods) at a total free-on-board value of $562,500. By the Commercial Invoice and Original Final Invoice, the freight charges and ancillary charges for the transportation of the goods to FC & T in Nigeria were $248,750 and $170,000. By the said Commercial Invoice and OriginalFinal Invoice, the total cost of the goods together with the shipping cost by WTII from USA to FC & T in Nigeria was $981,250.00.

By another Pro-forma Commercial Invoice and Final Invoice No WTI/FCT/NG/11/2003B dated 12/5/2004, WTII in USA agreed to sell and FC & T in Nigeria agreed to buy 25 refurbished 86/90 Forty Foot GMC/TMC/RTS Transit Buses (the goods) at a total free-on-board at a unit cost of $22,500.00, with the total cost at $517,500. WTII and FC &T agreed to employ the means of documentary credit, particularly the opening/issuance of Letter of Credit for the purpose of the sale and purchase of the goods. Pursuant to this agreement, WTII sought and obtained credit facilities from RZB Finance LLC (RZB), a financial institution based in USA, to finance the export of the goods from the USA, while FC & T sought and obtained from GBN, as issuing bank, an Irrevocable Transferable Letter of Credit bearing Documentary Credit No GBN/2003/0037 in favour of WTII. By the said Letter of Credit, GBN undertook to pay WTII through RZB, the confirming Bank, upon satisfying the conditions for payment as stipulated therein, and issued Notification of Documentary Credit for the sum of US$1, 962,500.

As a condition precedent to RZB financing the exportation of the goods to Nigeria and WTII agreeing to sell the goods to FC & T, and pursuant to the terms of the sale agreement between FC & T and WTII, both FC & T and WTII agreed that RZB take out an insurance policy with the Appellant, insuring the payment of the sum of UD$1,962,500 being the value of the goods and sundry charges as evidenced by the Letters of Credit. The Appellant is an agency of the Government of United States of America (USA) that is engaged in the financial support of exports from the USA and whose services include giving insurance cover to exporters based in the USA against payment defaults by foreign buyers. RZB took out the insurance policy with the Appellant, with the knowledge and agreement of both GBN and FC & T. Premised upon this, WTII agreed to deliver the goods to FC & T and in accordance with the terms of the Letter of Credit. However, when GBN failed to make payment to RZB, WTII was paid by RZB. Pursuant to the terms of the insurance policy, RZB, upon payment of the insuranceclaim by the Appellant, assigned all its rights under the Letter of Credit to the Appellant.

The Appellant made attempts to recover the payment from GBN, the Respondent. After unsuccessful attempts, the Appellant as Plaintiff instituted action before the Federal High Court, Lagos (trial Court) for payment of the sum due in the said Letters of Credit.The Respondent as Defendant, in its Statement of Defence, denied the claims of the Appellant. The Respondent also filed a Motion on Notice seeking to strike out the Appellant’s suit in its entirety. The trial Court agreed with the Respondent’s argument and declined jurisdiction to entertain the Appellant’s suit. Dissatisfied, the Appellant appealed to the Court of Appeal.

 

ISSUES FOR DETERMINATION.

The Court of Appeal determined the appeal on the sole issue of whether taking into account the subject-matter of the Appellant’s claim before it, the trial Court was right in declining jurisdiction.

APPELLANT’S SUBMISSION

Appellant submitted thatjurisdiction of a Court is determined by the claim of the Plaintiff as endorsed on its writ of summons and statement of claim, and not the Defendant’s statement of defence, relying on Onuorah v Kaduna Refining & Petrochemical Co. Ltd (2005) 6 NWLR (PT 921) 393. The Appellant contended that its rights accrued from Insurance Clause in the Letter of Credit transaction whereby the Appellant as insurer acquired the rights of RZB to recover from the Respondent, the sums due to it under the Letter of Credit transaction upon the failure of the Respondent to make payments to RZB as the issuing Bank in the Letter of Credit transaction.Thus, the cases relied upon by the trial Court in holding that the Appellant’s claim was based on simple contract were irrelevant. Further, by Section 251(1)(d) of the 1999 Constitution, claims relating to rights attached to Letters of Credit fall within the jurisdiction of the trial Court.Reliance was also placed on the decision in Central Bank of Nigeria v Industrial Bank Ltd (1997) 9 NWLR (PT 522) 712.

 

RESPONDENT’S SUBMISSION

The Respondent submitted that jurisdiction is the life wire of every matter; Chief EtuedorUtih&Ors. v. Jacob Umurhurhu Onoyivwe & Ors.  (1991) LPELR-3436(SC). The Respondent submitted that the mere fact that a Letter of Credit is involved does not bring the claim within the jurisdiction of the Federal High Court. The Appellant’s case was for payment due from a contract for supply of the busesand thus did not relate to any subject for which the jurisdiction of the Federal High Court was established.Reliance was placed on Akinsanya v UBA Ltd (1986) 4 NWLR (PT 35) 273.

The Respondent further contended that the issuance of the Letter of Credit emanated from the main claim of a simple contract,which in this case is the sale and purchase of goods. Further, the jurisdiction of the Federal High Court would only be invoked in relation to the issues of a Letter of Credit where it involves the Central Bank of Nigeria, which is not so in the case at hand. Reliance was placed on Agu v CBN (2016) LPELR-41091(CA).

APPELLANT’S REPLY ON POINTS OF LAW

Appellant submitted that the Respondent cannot formulate a case for the Appellant. The Court was urged to interpret Section 251(1) (d) as a whole and not in isolation. Reliance was placed on the decision in Ugwu v Ararume (2007) 6 SC (Pt 1) 88.

RESOLUTION OF ISSUES

The Courtin resolving the issue raised in the appeal stated that Jurisdiction is the authority or power of a Court to adjudicate over any matter. See Adetayo v. Ademola (2010) LPELR-155(SC). It is imperative for the Court to resolve issues of jurisdiction at the earliest opportunity, because proceedings, no matter how well conducted, as well as every order or decision arising therefrom, would amount to a nullity if the Court actually lacks jurisdiction. See Melwani v. Five Star Industries Ltd (2002) 1 S.C. 120.The Court further held that jurisdiction is determined by considering the enabling law vesting jurisdiction in the Court in light of the reliefs sought by the Plaintiff.

The Court held that the contract in issue cannot be said to have been founded on the Letter of Credit issued by the GBN in favour of the confirming Bank, RZB. WTII, the seller, and FC & T, the buyer, negotiated and agreed upon the terms for the purchase of the goods, the mode of the credit and the mode of transportation of the goods. The Court further held that the insurance contract between RZB and the Appellant may have some connection with the Letter of Credit issued by the Respondent, but resolving any controversy arising therefrom cannot be done in isolation of the original contract between WTII and FC & T. The Court held that the trial Court did not have the vires by virtue of Section 251(1) to examine issues arising from any breach orotherwise of the contract between WTII and FC & T. See Onuorah v. Kaduna Refining & Petrochemical Co. Ltd (supra), (2005) LPELR-2707(SC) and Adelekan v. ECU-line NV (supra), (2006) 12 NWLR (pt. 993) 33, (2006) LPELR-113(SC).

The Court further held that the mere fact that documentary credit by way of Letter of Credit was issued in the course of the trade relationship between WTII and FC & T, did not immediately catapult the instant claim into one covered by Section 251(1)(d) of the 1999 Constitution, as amended.

The Court thus held that the trial Court was right in declining jurisdiction.

HELD

The appeal was dismissed and the consequential order made by the trial Court that the case file be transferred to the Lagos State High Court by the Hon Chief Judge of the Federal High Court for hearing and determination was affirmed.

Appearances:

1. IYAYI, ESQ.

– For Appellant

1. AKINOSUN, SAN, with him,

AYODEJI JOLAOSO, ESQ.

– For Respondent

 

• Compiled by LawPavilion.

Obiora Chinedu Okafor is a Professor of Law at the Osgoode Hall Law School and Member of the Graduate Faculty, York University, Toronto. In this interview, he shares his views  on post COVID-19 Law practice, the appointment of Dr. Ngozi Okonjo-Iweala as Director-General, World Trade Organisation ( WTO) and sundry issues. Legal Editor, JOHN AUSTIN UNACHUKWU  met him.

 

For almost two years now, the COVID-19 Pandemic has been with us in varying degrees in different parts of the world. How do you think it has affected legal education and practice across the world?

It has affected legal education and practice in more than one way. First, it has accelerated an already ongoing move towards the greater deployment of technology (especially video conferencing technologies such as ZOOM) within legal education and in legal practice (including by courts), even in less resourced countries such as Nigeria, and even at the regional level (such as at the ECOWAS Court in Abuja and the African Court of Human Rights in Arusha, Tanzania). Second, it has also forced us to ponder issues of public health regulation within the legal academe, to a degree that was not previously the case. Third, it has also created greater awareness as to how deeply linked various countries are to the others in the world (for the pandemic will not end for anyone until it ends for everyone).

You occupied the Chief Gani Fawehinmi Chair for Human Rights at the Nigerian Institute of Advanced Legal Studies ( NIALS) between 2010 and 2012. What was the experience like?

It was a great honour and privilege to hold that Chair and I am most grateful to the fecund vision and uncommon administrative competence of the then Director-General, Prof. Epiphany Azinge ( SAN), for his vision in creating that Chair and in causing me to be appointed to it. The Chair allowed me to contribute my fair share to a country that essentially trained me almost for free, up to university level, and has given me so much as a result. During that time I brought a large international collaboration (Canada/Nigeria) to the NIALS, and led many programmes at the institute. I also delivered the Gani Fawehinmi Chair Lecture and the Diaspora Scholars Lecture at the Institute; gave many keynotes (including at the Centre for Peace and Conflict of the Foreign Ministry, the Nigerian Institute of Policy and Strategic Studies in Kuru (twice) and the Nigerian Bar Association Jos Branch’s Annual Conference); delivered many training sessions for government officials and others; and presented many lectures and speeches around the country. I also “discovered” and closely mentored a multitude of younger academics from all parts of Nigeria, one of whom is now a lecturer in law in Canada, another who has just completed her PhD in Canada, and others who are about to complete their own PhDs in Canada, South Africa, and elsewhere.

I also had the opportunity to advice the Presidency, the Committee on Human Rights of the House of Representatives of Nigeria, the Ministry of Foreign Affairs, and the ECOWAS Parliament. It was a great two years and my entire family, who came with me and worked/schooled in Abuja while I held the Chair, thoroughly enjoyed the experience.

Protection of human rights has remained on the front burner on the global political agenda, what is your appraisal of respect for human rights in Nigeria?

Unfortunately, my Senior UN position (though advisory and part-time) does not allow me to comment in such a forum on the human rights situation in my own country. This is based on the code of conduct applicable to those like me who currently serve as UN Special Rapporteurs. We enjoy the privileges of UN Under-Secretaries-General (though not the salaries, as we work pro bono!), and this comes with certain understandable restrictions.

Dr Ngozi Okonjo Iweala was recently appointed Director-General of the World Trade Organisation (WTO). What lesson do you find in it for Nigerians?

I find her appointment to this position and the obvious fact that she is the first African, first woman, first person of African descent, first Nigerian, etc, to occupy that position to be both exciting and fitting. Dr. Ngozi Okonjo Iweala is, simply put, a massive blessing to this country and a huge asset. People like her are worth far more than all the oil wealth we have in Nigeria. They are our most important resource. Her life and career has been a shining example to younger scholars and international figures like me. She represents the best that this country can offer and its likely future when merits begins to be taken much more seriously. When I grow up, I will like to be like her!

How do you think we can up our skills to enable us ply our trade effectively in a globalised world?

I think that the gaps and deficits that the country suffers from in this respect is much more attributable to a systematic de-prioritisation of merit for other rationales in our reward systems (woman know woman, little actual competition for public sector jobs, a fear of certain groups “taking over”, and the like). The more we reverse this tendency, the more we will be able to compete more effectively globally, and the more we will be able to deploy our best brains to areas where they are most required, and the more we will as a society become effective in all we do. If you are about to have surgery and want to survive it, do you want a doctor who was admitted to medical school or promoted a consultant to fill a quota, or one who looks like you, or one from your village, or one who scored the highest mark in the most rigorous theory and practical test possible in that area of surgery? I leave the answer to you!

The advent of social media has been received with mixed feelings. Some see social media as good others say it is bad. Which side of the divide are you?

Social media is new, technology-based and, in most cases, technology is not necessarily good or bad in inherent terms. This applies in this case. The issue is how it is deployed. Without commenting on the specific position in Nigeria, I tend to side with those who strongly favor freedom of expression on social media and unrestricted access – within certain strictly, clearly and narrowly confined restrictions – ex post facto – and only subject to judicial regulation by robustly independent courts.