Justice Wasiu Animahun of the Lagos State High Court has held a discourse on his new book: “Commentaries on 40 Selected Legal Issues” in honour of the founder of LIBRA and Life Bencher, Mrs Hairat Aderinsola Balogun, reports ADEBISI ONANUGA.
A couple of weeks ago, the Chief Justice of Nigeria (CJN), Justice Kudirat Kekere-Ekun, leading other justices and many legal luminaries, converged in Lagos at a discourse on “Commentaries on 40 Selected Legal Issues” authored by a judge of the Lagos High Court, Justice Wasiu Animahun. The book which provides analyses on pivotal legal issues, offers valuable perspectives for legal practitioners, academics and other enthusiasts.
It is written in honour of the founder of LIBRA and Life Bencher, Mrs Hairat Aderinsola Balogun.
The event was held at The Metropolitan Club, Kofo Abayomi Street, Victoria Island, Lagos. The session was moderated by Mrs Abimbola Akeredolu (SAN) and Adeyinka Moyosoire Kotoye (SAN)
An icon, a person of many firsts
The Chief Justice of Nigeria (CJN), Justice Kudirat Kekere-Ekun, in her remarks at the event, described Mrs Hairat Balogun as “an icon, a person of many firsts, She is somebody we all look up to. I would say she is the epitome of what we expect from the legal profession.
“She is very particular about the ethics of the profession. And as young as I am, my man does not and there’s nowhere we meet. She gives me that due respect”, she said.
CJN Kekere-Ekun said she was always embarrassed most of the time whenever they come across each other.
“Your mother bowing to you, but that is in the ethics of our profession. That is what we met” adding “she has always been somebody who upholds the ethics of the profession.”
Pointing out that the event was good to exchange ideas, the CJN commended the author, Justice Animahun for the industry in putting together a book of this nature while carrying out his judicial functions.
“What he has done is to highlight those areas that come up very often and to, put down the best way to go about this, matters.
“We know that as sitting judicial officers, we don’t have book launches. So this is a presentation of a book just for discussion.’’
She also expressed happiness that that the forum organised the progranne to honour Mrs Balogun.
Mrs Balogun, an industrious person
Lagos Chief Judge, Justice Kazeem Alogba in his remarks described the honouree as a very industrious person.
“You respect and give honour to whom honour is due. In our profession today, I don’t think any other person assumes better commitment to maintaining the ethics of the profession. Whenever you get in there, this is Hairat Balogun.
“Any discussion which you have with her which does not dovetail into something about your profession is incomplete. At the end of the day before you leave, you get impacted with something about your profession.
Alogba said none of the judges in the state who has written a book has had any negative comments about the quality of the book, assuring that Justice Animahun’s book will not be an exception.
“I vouch for it because I have had the opportunity of reading some chapters of it.”
He said that in the Lagos State judiciary, despite “our heavy tokens, despite the conditions under which we work, many of my brother judges are finding time to write books and in the legal profession which other facility or tool of work do we have other than books.
Justice Alogba explained that the book was born out of practical experience. “It not only discusses topics, it discusses topics on issues we confront everyday in the culture. In my forward, I did say that every practitioner who wishes to practise with ease and navigate through the course of our legal proceedings will do well to have a copy of this book because I’ve had the opportunity of reading some chapters in it, and they are down to earth. They’re not taking from the academic point to the practical point, but they are leading with superior course authorities.
Lagos State Civil Procedure Rules 2019
Asked to explain how effective the preemptive measures in Lagos State Civil Procedure Rules 2019 have been, Dr Muiz Banire said the author in chapter 10 of the book raises a very interesting question.
Banire said what we used to have and still having is pre action protocol in order to institute an action.
But over time, we discover that people are presenting and agitating the introduction of the preemptive remedy into our laws and that it is borne out of experience.
He said: “You find a situation where you have an exigency in your hand and you cannot approach the court. If you cannot approach the court, where then do you approach, is it the court or the police station that you have to go?
“So my view is that in so far and as much as the actual protocol is essential to feature in the cases that are coming before the court, it is essential that there must be a window where we have urgency or what I describe as emergency. For example, you have a situation, maybe the state government serves you a demolition notice in 48 hours and by the Practice Direction, you need 30 days to serve Lagos State Government the actual notice to interrogate the EUs and your reliefs. I’m sure that by the third day, the rest has become destroyed
“So what are you going to do? In fact, my view of it was not eventually carried out the way I proposed it.
So the practice director had come in to address that challenge, and that’s why we have preemptive remedy today.
‘‘I believe it’s an essential tool for the discretion of justice in Lagos State particularly. Now how far has it failed? Well, if passing from my own personal experience, I will say that we’ve done well with it. But again, the challenge I have, is that there seem not to be any unanimity or position among our judicial officers on the subject.
You find a situation where you have contradictory rulings. He said that the senior judges seem to understand the import much more than the new judges. “From my personal experience, I’ve seen a situation where, for example, you have brought in a preemptive remedy application, and you are now being asked to establish urgency.”
Banire said preemptive remedy is not really about urgency. According to him, there are only three prerequisites. If you look up here, a practice direction. Number two is that you are able to establish that there will be irreparable loss, that there will be serious machine, and that all that is of interest is what you can establish. He said once you have complied with the originating application, you have complied with the memorandum.
Banire said he has seen a situation where a judge granted a preemptive remedy for seven days. He, however, clarified that preventive remedy is not identical with interim injunction under our rule, stressing “They are part. The procedures are part. The effort are part. The requirements are part. The consequences are part.”
He said he had seen some judges who engage in what he considered to be unnecessary judicial activism in respect of the interpretation of the preventing remedy in the same jurisdiction, in the same court. He regretted that some decision go right, some go left, whereas, it is the rule of the same court.
Evidence as heart of litigation
Asked for his perspective on issue of evidence as a professor of law and a seasoned practitioner, Prof. Taiwo Osipitan (SAN)remarked that evidence is the heart of litigation. “If you know it, you can get away with anything and everything”, he said, while commending the author for devoting chapters 25 to 39 to that important topic.
Prof Osipitan remarked that Some of the issues raised on the matter in chapter 37 of the book are very fundamental.
“We all know that the rules of court now provide that you front-load your witness statement on oath. Those statements are expected, so it will be sworn to before an authorized person. And this question being posed here arose from the case of Buhari and INEC where a councilor who was involved as a counsel to a party was the one who took it before whom the oath was sworn to, and the court said no.
“The law will be faced on daily basis and I have used it to advantage. That’s why I find it difficult to agree with my Lord (the author).
Between irregularity and void
According to Prof. Osipitan, the evidence act provides two steps.
(1) you must appear before the notary or the commissioner for oath to swear that witness to the oath. After swearing, you sign. So we are now faced with a situation where we are saying that somebody who signed elsewhere that if I now continue to ask him questions, then I seem to have whipped that thing because it’s irregularity.
Osipitan contended: “some things are irregular and are avoidable. Well, some things are void, and they mean perpetually void. He said the law is that if an act is void, it remains commonly void and nothing can be put on it.”
He explained that the law of evidence is that parties cannot, by consent, admit evidence which is inadmissible. Citing Section 1b of the evidence, he said,” I’m basically clear that evidence which you are not entitled to be given, you cannot give it. So whether I asked 1,000 questions or not, it does not cure that irregularity because it is not an issue that is voidable. It is void and remains permanently void.”
He advised that as counsel, they should feel free to ask questions adding that as counsels, one is not estopped from still using that point because it is void.
Between funding and economic growth
Asked for his view on funding and economic growth, Prof. Tunde Otubu of the Faculty of Law, University of Lagos (UNILAG), Akoka remarked that his take on this position of the author is premised on the fundamental relationship between funding and economic growth. This Prof. Otubu said is that we need finance to develop our society and that this finance are usually gotten from various different financial institutions.
He explained that in order to ensure that the money taken out will be easily returned, there are usually security put in place as collateral and one of them is mortgage which he described as the most vibrant.
He said whether it is legal or equitable mortgage, any failure to pay back the fund, the mortgagee should ordinarily be able to go back to the mortgage property and recoup this fund from it.
He explained that whatever is left will now be returned to the mortgage or if any.
He said that in any transactions, there are documentary agreement in most cases.
“Documentary agreement, can be easily interpreted and applied. So if that is the case, going through the provisions of the rules and applying the summons to address the issue of modernist, I think it’s a very, very welcome idea to save our system. Because if that has always been put in place and being used without any lawyers doing the otherwise to save the life of our debtor client.
“I don’t think we will have AMCOM today. AMCOM came in when it now became so obvious that debtors, despite all securities they have placed before the financial institutions, are still unwilling to pay back the loan taken from the banks.
“Upon being tried to execute the mortgage or to execute some of the powers of the mortgagee, there is so much antiques spinning legal dramatics to make sure to frustrate the recovery process of the mortgage.
“So I therefore think actually, you have to confess.
Prof Otubu said he read the particular chapter on funding and economic growth there or four times, not because he didn’t understand the language, “but the context in which the author tried to put it down and emphasize how this thing can easily make things easier for our own economy.”
The purport of Originating Summon
Dr KemiPinheiro (SAN approach the issue from a very reformist approach and went ahead to demonstrate it in two instances.
He asked, “Had we ever, during arbitration proceedings, do we consider or rule on objections as to admissibility?
He claimed to have examine all the proceedings in Singapore, in the UK, or in the US positions. He said one would never see the courts having to waste its time ruling on admissibility of documents.
“I think it’s about time we adopt a reformist approach to our evidential rules. We need to relax our rules of evidence.
“There’s too much injustice at the location. Not only to the parties, but also to the courts who are elongated with the to rule on these objections. “Any document, so long as it is relevant, should be admissible. If the adversary wants to challenge the probativeness or the credibility or integrity of that document, he should produce his own.
“Why must I, as an adversary, have to go and start paying such colossal amount of money to a public officer to produce a document when I have a copy of that document in my hands and that document is not being challenged not to exist.”
Pinheiro argued that there’s so much injustice that comes with our interpretation, the admissibility of public documents. And, pro, I’m happy the, the distinguished and the NTGF is here. It’s about time we reform our rules.
“Let us make sure ensure that our judges and our courts do not have to waste time on ruling on evidence and objections and all whatnot. There’s too much injustice as occasions with such very stringent and complicated rules of evidence”, he contended.
Validity of Originating Process
Justice Mrs Nehizona Idemudia Afolabi of the Court of Appeal was told by the moderatos that as practitioners on both sides of the legal divide, the bar, the bench, there is a general awareness that the originating process is pivotal to the success of any litigation and that its validity is critical to the accuracy of the courts who exercise jurisdiction over the case that the originating process initiates.
Responding, Justice Afolabi said the issue of renewal of the res is pivotal. She said this means everything discussed so far at the event starts with the res.
“So, whatever it is we do or have been doing, if the res is not proper before the court, it means the jurisdiction of the court has not even been activated.
She said that in considering the evident legal issue in this chapter of the book, the author has done a great deal by first providing the provisions of Order 5 and 6 of the High Court of Lagos State Civil Procedure Rules of 1972, and the equivalent provision of the Extant High Court of Lagos State Civil Procedure Rules of 2019, and the similar provisions under the High Court of the Federal Capital Territory Abuja Civil Procedure Rules 2018.
She went ahead to provide a similar provisions in the High Court of the Federal Capital Territory Abuja Civil Procedure Rules of 2018, and Order 3, Rule 15, 1 to 2 and 4 of the Federal High Court Civil Procedure Rules.
Order 17, Rule 1 of the Federal High Court Rules 2013 amended, seems to expressly put to rest whether an originating process can be renewed after the expiration of the extended lifespan, where it provides that a party may amend its originating process and pleading at any time before judgment, but not for more than three times.
What appears to be the crux of the legal issues here is the difference in the wordings of the different rules of court. Justice Afolabi noted that some of the phrases such as “shall be enforced” and “before its expiration” are common to the various rules.
“Thus, it is not in doubt and it is settled that these rules stipulate the number of times that an applicable renewal can be made, but the rule says that the renewal cannot be more than two times.”
Justice Afolabi remarked that from all the provisions reproduced, it must be noted that the renewal of the originating process in itself is not desirable, but at times it cannot be helped.
“The crux, in my firm view, I am of the opinion that it can be renewed subject to the Rules of the Court in question.
“The law is clear and it expressly states that these REITs can be renewed at least not more than two times. (4:16) That is my firm view in this matter.
“And finally, it says that the court cannot on its own renew a res without an applicant expressly seeking the leave of court to do so”, she maintained.
Pre-action notice
Minister of Justice and Federal Attorney General of the Fedration, Prince Lateef Fagbemi said within the short time he came on board, he has always asked if there are certain pre action notice.
Prince Fagbemi said there are certain situations in which, preaction notice with or without, practice direction. I agree that the tail cannot be wagging the head. That is to say the one issued by the chief judge, the regulation cannot be wagging the provisions of the law. But at the same time, the proving that law cannot also be allowed to create injustice.
He said a lot therefore depends on who is handling the matter, that is to say, the judge handling the matter and the situation at hand.
“So it may be very difficult to draw a clear line. I also know that in certain situations there are frivolous applications. Give me injunction. Give me injunction. My life is at a risk of being terminated.
“My property at the end of the day, you go into the matter and you discover that it was a foul play. I think damages, costs, punitive one can then be used to a switch the whatever injury that has happened”, he explained.
Overview of the book
The author, Justice Wasiu Animahun did an overview of his book. He said he joined the law firm of Mrs Hairat Balogun immediate he finished National Youth Service Corps (NYSC) and left upon being appointed a judge of the Lagos Judiciary. He said he wrote the book because he believed he has an obligation to say thank you to the woman who shaped his life.
Giving an overview of the book, Justice Animahun said he decided to write on different issues and not just normal conventional text books.
“I discovered that almost all the topics or issues raised appear not to be well settled. We have completed decisions on them. So just as my Chief Judge said that he doesn’t agree with some of the views because of the controversy it will generate.
“I expect that it generates reactions. For example, maybe I start from, chapter 1 on whether an expired or in some months can be renewed.
I’m aware that we have completed deals even among our court judges among lawyers. There’s still this belief that, callers only under battle still applies.
“I made emphasis on the fact that the current rules of courts, almost cut off all the federation. There’s a provider which was not in the 72 groups under which was decided. And then I also made a recommendation that is I think it’s set in the book.
Service by electronic mix
“I’m not sure there’s any good high court rules that allow, service by electronic mix. I think we are overdue to have that incorporated in the rules so that it will be the issue of, exploration always core as a result of the difficulties serving the hard copy.
So there is a need for us to incorporate our permit service by electronic mixing in the rules.
Rules of the court
“Again, chapter 2, on rules of courts. I mean, it does we know that rules of courts enjoy true status as subsidiary legislation and also as adjective at laws. So we move from right to left depending on, maybe we can put it that way depending on who’s the candidate or who the litigant is.
“The judge can decide to say, well, is this subsidiary of the destruction of assault is binding.”
“On other issue, you can decide to say no. It’s adjective at all. And then the For example, if the rule says that you will get to leave before you file you commence an action.
Filing out of time
“The consequence is different from when you file out of time. So, still on chapter 2, so I proceeded to list, instances when non compliance is fatal and when it is not fatal.
Technicalities
Chapter 3 is on whether technicalities still applies. The mantra nowadays is for lawyers to say no. We are no longer in the era of technicalities.
“The question I always ask is, well, if we have to, if you can conduct proceedings without complying with the law, then let’s be practicing as is being done in the customer records. So I think that the issue of technicality or not, entrance should be limited to infringement of the rules and not substantive laws.
I pointed that out in the book and then and I asked this question, as long as we can dismiss cases on ground of jurisdiction, limitation or illegality, then those are technical points. We cannot be staying by the glass and then still allow certain grounds to be the basis of dismissed and out of cases. So when to say technicality does not apply or not, it depends on strictly on whether the rule is released with rules of court or situation of frauds.
Substantial compliance
“I discovered from my research that, what the law demands for is substantial compliance. So it is when the party substantially complied than it can now hold the court and say, My Lord, I agree that it’s a submission, but it’s negligible. So my lord take the objection as a technical point, but not the situation when we totally you know, I’m not going to be able to do it. I’m not going to be able to do it.
. You are the as I know, you sold the land. What’s what’s interest do you still have on the land.
Issue of joinders
I mean, to now apply that you should be joined. So my attitude is if you are assigned on, the proper thing is for you to be joined as a witness and not as not as a party.
Likewise, if you are an assignee and there’s a pure litigation between two assignors, then your case between the two assignees should be stepped down on one location.
The courts may say, non joiner out is hearing. On another occasion, John Messi is not freighter. Again, I said, we should look we should look at the issue based on the cost of action. I mean, if the cost of action is a contract, for example, it’s a contracted parties.
If you don’t have the contracted parties, nobody should argue that the So on the 7 of legal rules relates to validity of, an an automatic process and not admissibility. I think it’s on the 33 that this is admissibility. And again, I said, it is wrong for us of course to dwell on the subject matter that falls under the exclusivity so we should not allow an objection to ad visibility to be based on provision of any of the provision of the roads. And I said that if. It can be a chance to to object to admissibility, then there are still exceptions if a document is specifically predates, I mean, the issue of phone order should not be fitter because by pleading by it looks very pleading that, the trial that shall rely on this to so it puts the other person on notice.
Chapter 8 is on tomorrow. The issue here in chapter 84 is on tomorrow. Most times they file an objection and the defense, okay, defender will file an objection and the claimer will say it amounts to tomorrow. So there is this completing decisions on whether defenses like limitation law must be created.
This is my view, that it’s not mandatory to plead.
I separated defenses into two. We have tools that are permanently, part of the cost of action. For example, in liable matter, for example, justification is a defense. It’s a general defense on that that cause of action.
Cause of action
Then we have another set of, defenses like limitation which is common to all causes of action. So those ones that are very common to other cause of action, I express the view that that do have nothing to do with the ingredients of the course of action. They can be separated from the course of action. And as such, they can be raised in emotion and determined without the need to beat them.
Giving back to a mentor
The honouree, Mrs Hairat Balogun in her remarks thanked all those who participated in the event.
“I want to just give out a secret. I am really honored. Almost everybody who has taken part, they are all products of Liberal Law. All of them have tried to give back what they learned. But in the main, I tried to give back the grace that the Lord confirmed in me and I think that is very important.
She remarked that a lot of people are suprised that she still goes to court and that she was still working.
“Yes. I said. For waking up, you have to thank God for that and you have to work for it. So please, everybody, I want you to feel encouraged.
“It is the way you carry yourself, the way you launch into into your job, into your situation that would be acceptable in His sight.
“Everybody in this room, we do not know our capacity. It’s the almighty who gave us that capacity that to keep working.”
She said sometimes when she went to office, she ‘fights’ with some of her lawyers in chamber, adding, “that’s part of life. I fight with them, then I call them, come and do this for me.
“So please be assured that nothing is wasted. Once you take the grace and run with it, it’s going to be alright.”
She thanked everyone that attended the event.
“I wish I could just go individually kneeling down and say thank you. Thank you. God bless all of you”, she said.
