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Tag: appeal

  • Appeal Court to computerise operations

    The Court of Appeal is set to modernise its operations by introducing electronic filing and more use of technology.

    Its President, Justice Zainab Bulkachuwa led a team on a visit to Australia to study how they apply technology in their courts.

    The choice of Australia, it was learnt, was because the country operates a hybrid judicial system which copies the United States and the United Kingdom.

    The team visited the Federal Family Court of Australia to see its e-filing system, and was received by the court’s Chief Justice, Diana Bryant.

    It is believed the e-filing, when functional, will transform the Court of Appeal from a paper-based system to an electronic one, where interactions can occur via internet or automated voice-responseS.

    It was learnt that when the technology is deployed, lawyers can file cases through their computers or tablets, get hearing dates, receive notices, access cases electronically, track cases and recall decided cases. It could also help reduce conflicting judgments.

    An information technology expert, Adegbenro Alao, who was a part of the visit, said: “We are confident that the PCA is on the right path to modernise legal administration in Nigeria and hopefully her vision will be appreciated by generations to come.”

    It was learnt that the e-filing will be based on the online electronic filing system developed for the appellate courts, and the pilot project will begin in the Lagos Division.

    However, analysts say poor power supply, erratic internet services and computer illiteracy of some lawyers, justices and judicial personnel may work against the project.

    Still, others believe application of technology in court processes will speed up cases’ adjudication. Mrs Mrs Funke Adekoya (SAN), said: “This is something that is being practiced all over the world, so it is not entirely new. If we say Nigeria is the giant of Africa, we should demonstrate that in all ramifications.

    “For those countries that have adopted it, it often makes judicial process easier and faster for them, so we stand to benefit a lot from it. I think Nigerian judicial system is ready for it.”

     

  • Lobi to appeal LMC ‘s verdict

    Lobi to appeal LMC ‘s verdict

    Lobi Stars have disclosed that they would appeal the verdict of the League Management Company(LMC) which ruled that their inconclusive Premier League Week 27 tie should be replayed from where the game stopped before it was abandoned by the home team.

    Subject to the ratification of the Nigeria Football Federation(NFF),the LMC ruled on Thursday that Nembe would play their next three home games at the Samuel Ogbemudia Stadium, Benin City while they were also fined N500,000 for the action of the home fans who encroached on the pitch immediately a penalty was awarded the away side in the dying minutes of the match.

    But LMC ordered that the botched match be concluded at a neutral venue yet to be fixed and on a day yet to be announced.

    Lobi Stars, in a chat with SportingLife, said they would be appealing the verdict of the LMC ruling to the NFF whom must still rubber stamp the decision of the league body before it becomes sacrosanct.

  • Open ballot system on trial at Appeal Court

    On August 28, 2013, the Appellant as Applicant by an originating motion on notice commenced a suit in the Federal High Court at Abakaliki against the Respondents applying for the enforcement of his fundamental right to privacy and praying for the following reliefs amongst others: (a) a declaration that the applicant and other voters in Ebonyi State are entitled to the privacy of who they vote for in an election as guaranteed by section 37 of the 1999 constitution of Nigeria (as altered); (b) a declaration that the open ballot system of voting, that is queuing behind the candidate of your choice in the full glare of everybody constitutes a violation of the right of the applicant and other voters to the privacy of who they vote for in an election as guaranteed by section 37 of the 1999 constitution of Nigeria (as altered); (c) a declaration that Section 5 (1) of Ebonyi State Electoral (Amendment) and Other Related Matters Law No. 005 of 2010 violates the rights of the applicant and other voters to the privacy of who they vote for in an election as guaranteed by Section 37 of the Constitution of Nigeria, 1999 (as altered) and as such, ineffectual; (d) a declaration that Section 5 (1) of Ebonyi State Electoral (Amendment) and Other Related Matters Law No. 005 of 2010 is inconsistent with section 52 (1) of Electoral Act, 2010 (as amended) and, as such, null and void; (e) an order of perpetual injunction restraining the 1st respondent from using open ballot system of voting to conduct the Local Government Election slated for the 28th September, 2013 or any other Local Government Election.

    The 1st, 2nd and 3rd Respondents filed a notice of preliminary objection to the application along with a written argument of same. They also filed a counter-affidavit in opposition of the application and a written argument opposing the application.  The Appellant filed an affidavit in reaction to the preliminary objection of the 1st 2nd and 3rd Respondents and a written argument of same. On the 20th September, 2013, the trial Court delivered its ruling upholding the preliminary objection and stating that it will not go into the substantive motion having upheld the said objection.  It dismissed the suit. Dissatisfied with this ruling, the Applicant filed an appeal at the Court of Appeal against the part of the ruling dismissing the application for not falling within the purview of Section 37 of the 1999 Constitution.

    The Appellant’s brief of argument raised the following issues for determination:

    Whether the court below was right when it held that the complaint of the applicant does not fall within the contemplation of Fundamental Rights and cannot be enforced through the Fundamental Rights Enforcement Procedure

    Whether the court below was right when it failed to apply the definitions of privacy and rights to privacy as given by Black’s Law Dictionary, 8th Edition and Supreme Court in the case of Medical and Dental Practitioner’s Disciplinary Tribunal V Dr John E. N. Okonkwo (2001) 5 NSCQR; 650 at 683 -685.

    Whether the court below was right when it held that the right to privacy contemplates only of “right to privacy at home, privacy of one’s communications, privacy in family life and other incidentals thereto” without seeing right to privacy while voting at an election as being incidental thereto.

    The Court adopted the issues as formulated by the Appellant in the determination of the appeal.

    The central argument of Learned Counsel for the Appellant in respect of the case brought by the Appellant is that, compelling an individual to disclose who he/she votes for in an election, by queuing publicly behind the person, violates the individual’s right to privacy under Section 37 of the 1999 Constitution and also exposes him or her to the danger of being attacked by political thugs and that it was this situation that led to the deaths and destructions that characterized the PDP primaries in Ebonyi State that was conducted via open ballot system, as those who saw that they were losing caused confusion with ensuring shootings leading to death and destructions. Learned Counsel further argued that the trial Court was wrong to have held that the Appellant’s complain does not come within the ambit of Section 37 of the 1999 Constitution as the right to privacy in that section contemplates only “right to privacy at home, privacy of one’s communication, privacy in private family life and matters incidental thereto.” According to Learned Counsel, this interpretation by the trial Court is over restrictive and dry, and that the fact that the Constitution did not expressly mention the right to privacy while casting vote in an election does not mean that the right to privacy provided for in Section 37 of the 1999 Constitution does not extend to privacy while casting vote in an election. Learned Counsel for the Appellant finally submitted that compelling people to vote by queuing behind the candidate of their choice is archaic, primitive and risky, that it is noteworthy that this is being practiced only in Ebonyi State, that majority of the voters who do not want to vote openly, stay away from voting and that the 1st Respondent unless judicially restrained, will continue to use this method.

    The Learned Attorney General for the 1st, 2nd and 3rd Respondents argued relying on the decisions in UNILORIN VS. OLUWADARE (2006) 27 NSCQR 18; (2006) LPELR-3417(SC), AMALE VS. SOKOTO LOCAL GOVERNMENT (2012) 492 NSCQR 1271; (2012) LPELR-7842(SC), and ABDULHAMID VS. AKAR (2006) ALL FWLR (PT 324) 1191 AT 1209 that the rights that can be enforced via the Fundamental Rights Enforcement Procedure Rules must be the rights contained in Chapter IV of the Constitution and that an application can be brought under those Rules only where the principal claim is one for the enforcement of the fundamental rights in the said Chapter IV of the Constitution and not where it is incidental or ancillary to a right not enforceable by those Rules. He then submitted that an application brought under the Fundamental Right Enforcement Procedure Rules to enforce a right not contained in Chapter IV of the Constitution is not initiated in accordance with the due process of law. The Learned Attorney General then submitted that the Appellant’s main grouse is against the mode of voting in the 2013 Ebonyi Local Government Elections, that the other complains are ancillary to the challenge of the validity of Section 5(1) of the Ebonyi State Independent Electoral Law and that he is unable to see where Section 5 (1) of the said Law which provides for mode of voting is inconsistent with Section 37 of the Constitution. The Learned Attorney General further argued that the right to vote and the mode of voting in secret is not a fundamental right provided in Chapter IV of the Constitution.

    In determining the appeal, the Court interpreted the phrase “privacy of citizens” generally, liberally, and expansively to include privacy of citizens’ body, life, person, thought, belief, conscience, feelings, views, decisions (including his plans and choices), desires, health, relationships, character, material possessions, family life, activities et cetera. Therefore the Court held that privacy of the choice of a candidate and the privacy of voting for that candidate constitute part of “privacy” as a citizen. The Court held that the Appellant was entitled to the privacy of his decision to vote for a particular candidate, his choice of that candidate and his casting his vote for that candidate. Therefore requiring or compelling him to vote openly in the public watch and knowledge by queuing in front of the poster carrying the portrait of the candidate he has decided to vote for intrudes into, interferes with, and invades the privacy of his said decision, choice and voting, completely removing that privacy, therefore amounting to a clear violation of his fundamental right to the privacy of a citizen guaranteed him and protected by Section 37 of the 1999 Constitution.

    The Court further held that Section 5 (1) of and paragraph 21 (2) to (5) of the 1st schedule of the Ebonyi State Electoral (Amendment) and Related Matters Law 2010 which provide for voting by open ballot system by requiring a voter to vote for a candidate by queuing in front of the poster bearing the portrait of the said candidate in the full public view, deprives the Appellant the right to privacy of his decision to vote for a candidate and his vote for that candidate and is therefore inconsistent with Section 37 of the 1999 Constitution. In the light of the foregoing, the Court held that Section 5 (1) and paragraph 21 (2), (3), (4) and (5) of the 1st schedule to the Ebonyi State Electoral (Amendment) Law 2010 and all provisions therein providing for voting by open ballot are void ab initio for being inconsistent with Section 37 of the 1999 Constitution and for not complying with Section 45 (1) of the same Constitution.

    On the whole, the Court held that the appeal succeeds and it was allowed. The part of the ruling of the Federal High Court sitting at Abakaliki, per M.A. Oyetenu J. in suit No.FHC/AI/CS/38/2013 delivered on 20th September, 2013 upholding the 1st, 2nd and 3rd Respondents’ preliminary objection and dismissing the Appellant’s suit was set aside.

     

    Edited by LawPavilion

    LawPavilion Citation: (2014) LPELR-23682(CA)

     

  • Appeal Court does not unduly interfere with findings of fact

    Appeal Court does not unduly interfere with findings of fact

    The Appellant, Ayiere Godsgift (alias Alex) was charged before the High Court of Cross River State, Calabar Division on two-count charge of child stealing contrary to Section 371(1) of Criminal Code and murder contrary to Section 319 of the Criminal Code. From the evidence, the facts are that on 8th October, 2007 between 12.00 noon and 1.00p.m the Appellant went to Grace and Gold Nursery/Primary School, State Housing Estate Calabar and fraudulently enticed and stole away John Okon Edem aged 10years (the deceased). It was alleged that the Appellant deceived both the security man and John Okon Edem’s teacher (PW2) by showing them the snacks he bought for the lad. The Appellant was given access to young John Okon Edem by the class teacher. The deceased was excited to see the Appellant whom he affectionately referred to as “uncle”. As the teacher who had somebody in her hand turned around to keep them, the Appellant left with John Okon Edem.

    The teacher waited for a while for the Appellant to return with John. After some time, she left the classroom for the security post to enquire from the security man (PW3) if he had seen John. It was at that point the teacher was informed by the security man that the Appellant had taken John away. The teacher promptly informed the head teacher who called PW1 (the father of the deceased) to find out if he had sent someone to pick up John from school. PW1 said he did not and called his wife to find out if she did while the search for Johnson Okon was going on, PW1 claimed to have received a telephone call from someone who identified himself as “Johnson” who demanded a ransom of N3million for the release of John Okon Edem.

    According to PW1 “Johnson” sounded like the Appellant, a former employee of PW1 whose voice PW1 was very familiar with because they talk regularly on telephone. This fact aroused PW1’s suspicion. “Johnson” made several calls to the deceased boy’s father to demand the payment of the ransom until later PW1 reported to the Police who arranged “paper money” in a bag to be given to Johnson. On 11th October, 2007, the faceless “Johnson” directed PW1 to take the money to PW5 who operated a commercial call centre of B52, Border Road, Ikom. Johnson also sent a commercial motorcyclist, Samuel Ezaka to pick up the money from PW5. It was in an attempt by Mr. Ezaka to pick up the money at Ikom that he was arrested by the Police. Later in the day of 11th October, 2007, the Appellant was also arrested by the Police for his role in the disappearance and death of the deceased, John Okon Edem.

    In his defence, the Appellant denied any involvement in the kidnap and eventual murder of John Okon Edem. The case went on trial. In proof of its case, the prosecution called five witnesses and tendered several exhibits while the Appellant testified for himself. At the conclusion of the trial, the leaned trial judge, Philomena Ekpe, J., of the Cross River State High Court, Calabar Judicial Division in a judgment delivered on 17th March, 2010, convicted the Appellant of the offence of murder and sentenced him to death. The Appellant dissatisfied with that judgment of the trial Court appealed to the Court of Appeal.

    The Appellant formulated a sole and single issue for determination of the appeal as follows:

    “Whether or not the prosecution proved the appellants guilt beyond reasonable doubt as required by law as to justify his conviction”?

    In arguing the appeal, the learned Appellant’s Counsel submitted that in a case of murder as the present case the prosecution must prove not only the cause of death, but also that the act of the accused caused the death of the deceased. Omogodo v. The State (1981) 5 SC 5 of 26 – 27; (1981) LPELR-2644(SC. In holding that it was the act of the appellant that caused the death of the deceased Ekpe J., the trial judge placed much weight on identification evidence. It was submitted that the conviction of the Appellant based on the identification of the Appellant by PW2, PW3, PW4 and PW5 was not proper. See Abudu v. State (1985) 1 NWLR (Pt. 1) 55; (1985) LPELR-57(SC). It is submitted that the consideration that govern a proper identification exercise have been stated by the apex court in many cases. It was further submitted that none of the witnesses gave the description of the Appellant to the Police or state the opportunity they had in observing the Appellant of his feature which they noted and communicated to the Police. That they did not also say an identification parade was conducted by the Police for the purpose of identifying the Appellant. See Eyisi v. State (2000) 15 NWLR (Pt. 691) 555; (2000) LPELR-1186(SC) and Ebri v. State (2004) 11 NWLR (Pt. 885) 589; (2004) LPELR-996(SC). The Appellant submitted that no identification parade was carried out and if there was one it was improperly made and hastily done. It was submitted that the procedure as outlined for conducting an identification parade were not followed. Consequently that the identification of the Appellant was improper and wholly irregular.

    It was also submitted for the Appellant that the law requires the accused to raise the defence of alibi promptly at the earlier opportunity and that the Appellant raised the defence promptly in the very statement he made to the Police and in the aftermath of his arrest. It was contended that having done so it is incumbent for the police consistent with the duty for the prosecution to disprove the alibi, to investigate it. It was alleged that the Police failed to verify and check the alibi properly and timely put by the Appellant. It was submitted that the failure to investigate or check the alibi ought to have created a reasonable doubt in the mind of the Court as to whether the Appellant was actually responsible for the death of the deceased. Ikemson v. State (1989) NWLR (Pt. 110) 455; (1989) LPELR-1473(SC) and Ozaki v. State (1990) 1 NWLR (Pt. 124) 92 at 109; (1990) LPELR-2888(SC). It was further submitted that it is well settled that the defence of alibi where successful, results in the acquittal of accused. The Court was urged to quash the conviction of the Appellant on this ground.

    On the defence of alibi purportedly set up by the Appellant and the allegation that it was not investigated, the brief of the Respondent stated that the Respondent’s witnesses specifically and unequivocally linked the Appellant to the scene of the crime thereby making the investigation of the Court unnecessary. On the submission from the Appellant’s brief that the circumstantial evidence in this case is not credible and compelling enough to arrive at an irresistible conclusion that the deceased was last seen with the Appellant, the Respondent’s response is that this submission from the Appellant’s brief is misconceived. The Respondent submitted that the deceased was last seen with the Appellant who came and lured him out of school. PW2 and PW3 both testified to this fact and PW2 evidence was never challenged. The deceased disappeared thereafter until his corpse was found with the assistance of the Appellant at Bendghe Ekurim forest, along Ikom/Obudu Road a distance of over 200 kilometres from where he was taken.

    On the whole, the Court held that an Appeal Court is always slow or reluctant to interfere with the findings of fact by a trial court which had the opportunity of hearing and seeing the witness. The Court held that it only interferes where the finding of facts and evaluation of evidence and ascription of probative value to such evidence were improperly done, the trial court made imperfect or improper use of its opportunity to hear and see the witness or to draw a wrong conclusion from the accepted or proved facts or a wrong conclusion or arrived at a perverse decision. The Court stated that there is no question of perversity in the evaluation said to be done by the learned trial judge. See Lion Buildings Ltd. v Shadipe (1976) 12 SC 135; (1976) LPELR-1785(SC). The lone issue on these reasons was therefore resolved against the Appellant.

    With the only lone issue in the appeal having been resolved against the Appellant, the Court held that the appeal therefore does not succeed and must be dismissed. It was thereby accordingly dismissed by the Court. The judgment of Philomena Ekpe of High Court, Calabar Division, of Cross River State, was affirmed.

     

    Edited by LawPavilion

    LawPavilion Citation: (2014) LPELR-23514(CA)

     

  • PDP appeal panel clears acting Adamawa governor

    PDP appeal panel clears acting Adamawa governor

    The Peoples Democratic Party (PDP) Screening Appeal Committee has voided the disqualification of the Adamawa State Acting Governor, Umar Fintiri.

    Consequently, the panel has given him the clearance to participate in the party’s primary election coming up on September 6.

    Briefing journalists shortly after the appeal seating at the PDP national secretariat yesterday, the chairman of the panel, Senator James Manager, affirmed Fintiri’s qualification to participate in the election.

    Manager said the Ibrahim Mantu-led screening panel that disqualified the Acting Governor on Saturday committed an error of judgment in arriving at its  decision.

    The Mantu committee had relied on Section 191 (2) of the Constitution to ease Fintiri out of the race, saying; “Fintiri is not qualified to contest in the primaries because he is not a deputy governor that emerged as acting governor.

    “He is a child of circumstance. He is the midwife and should not be the one carrying the pregnancy. He is like a referee who cannot participate in the match.”

    But faulting Mantu’s position, Manager said: “We have taken a critical look at the entire gamut of the 1999 Constitution, the Electoral Act and the PDP Constitution before arriving at our decision.

    “The prerequisite for qualification to contest the election, as quoted by the Screening Panel, does not in any way affect the rights of the Acting Governor to contest.

    “On the strength of that, we have decided to issue the Acting Governor a provisional clearance certificate to participate in the primary election.

    “This decision is based on the facts on ground and not informed by any primordial sentiments. The outcome of our exercise is a unanimous decision by all members of the committee.”

    Fintiri appealed his disqualification, arguing that the  committee erred in its judgment and that the constitutional provision relied upon for his disqualification was misinterpreted.

    The Acting Governor’s petition had stated inter alia: “With due respect to the eminent members of the Screening Committee, they cannot read into the provision of the 1999 constitution what is not contained therein.

    “Even though I am the Acting Governor, my role is just to fill the governance vacuum created by the impeachment of the Governor and the resignation of the Deputy Governor and not that of a “referee or “midwife” carrying a pregnancy.

    “The referee or midwife is the Independent National Electoral Commission (INEC). If this were so, every governor who completes a first term and seeks election for a second term must resign from office before he or she can contest.

    “In the event of the need to interpret that provision of the Constitution, it is only a court of law that can do so. Not being a court of law, the Screening Committee was not competent to come to the conclusion it came to with regard to the provision of Section 191 (2) of the 1999 Constitution.

    “I, therefore, appeal to you to set the decision of the Screening Committee disqualifying me aside and allow me to contest the gubernatorial primaries coming up on 6th September, 2014.

    “Apart from being my inalienable right to contest, I make this passionate appeal as a loyal party member who has over the years contributed immensely to the good fortunes of the party in Adamawa State.

    “Furthermore, disqualifying me will make nonsense of the provisions of the party constitution which guarantees a level playing field for all members and candidates for political offices of the party and the ideals which I know the President of our great country stands for”.

    Fintiri, who was accompanied by aides and associates, expressed satisfaction with the decision of the panel, saying it was a victory for democracy and victory for the people of Adamawa State.

    Before the upturning of his disqualification, supporters of the acting governor took to the streets in Yola, the state capital at the weekend.

    Some students and artisans carried placards denouncing PDP National Chairman Adamu Mu’azu and screening panel Chairman Alhaji Ibrahim Mantu.

    The inscriptions on the placards are: “Down with Adamu Mu’azu”; “Adamu Mu’azu is Ebola”; “Mantu is wicked”; “Stop this injustice”; etc. The protesters barricaded the Bekaji Roundabout from the State Polytechnic, saying anti Mu’azu songs.

    The demonstrators also lambasted “Abuja politicians” who played roles in barring their man from contesting the PDP primaries.

    Fintiri requested his supporters to dismiss the report of his disqualification as baseless and of no effect whatsoever.

    The chairman of the Fintiri campaign Organisation, Dr. Jonathan Silas Zwingina, told reporters that the group rejected the screening panel’s decision.

    Zwingina described Ibrahim Mantu panel’s decision as irrational and lacking moral or constitutional basis.

    Zwingina said the organisation would contest the disqualification decision to the highest level.

    “The committee that did the screening did not find any misgiving – legally, constitutionally or otherwise – on our aspirant and we hereby reject that report totally as an aberration,” he said.

    According to him,” Fintiri has challenged the report of that committee to the highest level as the issues raised by the Mantu committee have been resolved by the organisation as a figment of the imagination of Ibrahim Mantu. The appeal committee will resolve the matter in the favour of Fintiri.”

    Zwingina urged members of the PDP to remain calm, adding that the Fintiri Campaign Organisation would go into the race not to only participate but to win the PDP primaries and eventually win the general election. “We strongly believe that we shall win the primaries and the Organisation is strong and thriving to defeat the other aspirants by winning the primaries in a landslide victory,” he said.

    Before the Appeal panel’s decision, Fintiri was believed to be lobbying First Lady Patience Jonathan and top leaders of the party to prevail on President Goodluck Jonathan to mandate the Appeal Committee to clear him for the primary.

    Fintiri was also rallying nine aspirants to stop hot contenders, such as former Economic and Financial Crimes Commission (EFCC) Chair Nuhu Ribadu,  former Universal Basic Education Commission (UBEC) Executive Secretary Dr. Ahmed Mohammed Modibbo, who is enjoying the backing of the “grassroots” in the state; ex-Lagos Military Administrator Buba Marwa; and a former governorship candidate, Marcus Gundiri.

    Fintiri might support one of the nine aspirants to prove to the PDP National Secretariat that he is in charge.

    On Saturday, Fintiri protested against his disqualification by the Mantu Panel before leaving the party’s National Secretariat.

    He accused the panel of working for Ribadu.

    A PDP source said: “But the extent to which our leaders has been polarised since Saturday night is baffling. Some respected BOT members have kicked against Fintiri’s disqualification, alleging that the party may sink into a deeper crisis in Adamawa State.

    “The Acting Governor has also been sending emissaries to President Jonathan and the First Lady. Bigwigs have been mounting pressure on the President to clear Fintiri for the primary.”

    In a statement through his Director of Press Affairs, Solomon Kumanga, the Acting Governor insisted that the Mantu Committee acted illegally.

    He said he is still in the race because his eligibility to contest is unquestionable.

    The statement said: “The Acting Governor, Rt. Hon. Ahmadu Umaru Fintiri, has called on Adamawa people, particularly fellow supporters and members of the PDP that believe in his cause not to rest on their oars but continue to mobilise for the delegates election as he is still in the race.

    “The Governor said the issues surrounding His non-clearance by the Mantu PDP screening Committee have been resolved.

    “Fintiri drew attention to the fact that the Committee did not disqualify him from the race as widely touted by the chairman because it lacked any legal or constitutional grounds to do so just as there was no ground under the statutes of the party to take such an arbitrary decision.

    “The Acting Governor is confident his eligibility to contest is unquestionable because the decision not to clear him had no political or legal precedence. Fintiri also drew attention to the fact that the decision of the committee to withhold his clearance on moral grounds could not stand because a day earlier, fellow aspirants who just returned to the party were granted waiver on the premise of fairness and justice.

    “However, where is the fairness or justice to the man who reclaimed the party’s mandate and wiped shame from the faces of all the Adamawa party bigwigs, who failed to do so in the first place?

    “If Fintiri as Speaker was able to remove Nyako and secure the PDP’s chance to reclaim Adamawa State, a state that is on the verge of being captured by the APC, then this is the time to reward him. Fintiri expresses unflinching loyalty to PDP which he served very well and the people whose overwhelming support he enjoys.”

    It was gathered that the acting governor met with nine of the 14 aspirants.

    They are: Auwal Tukur; ex-Minister Aliyu Idi Hong; Sen. Abubakar H. Girei; Jerry Kumdisi; Andrawus Sawa; James Barka; and retired  Gen. Aliyu Kama; Ahmed Gulak and Dr. Umar Ardo.

    At a meeting on Saturday night, it was agreed that the nine aspirants should meet in Yola to pick a consensus candidate against Ribadu and Modibbo.

    A chartered jet was provided yesterday to convey the aspirants to Yola to go and protest to the State PDP Secretariat against the disqualification of Fintiri.

    The aspirants will also seek a level-playing field, transparency and fair primary on Saturday.

    Another source added: “The Acting Governor might work against the top aspirants in the race. With the backing of the House of Assembly members and 21 local government chairmen, he might swing the primary in favour of any of the nine aspirants.

    “If PDP is adamant in disqualifying the Acting Governor, the man and his supporters have concluded plans to also play a spoiler’s game against Ribadu, Modibbo, Marwa and  Gundiri.”

  • Tenancy at Will: Court of Appeal rules on adequacy of quit notice

    The Appellant as claimant in this case brought an action at the High Court of Lagos State against the respondent as defendant claiming a declaration that the claimant is a joint owner of and has a valid and subsisting interest in the property known as and situate at Block 141, Flat 1, LSDPC Medium Cost Housing Estate, Ogba, Lagos State; a declaration that the Defendant is not entitled to sell, lease, transfer, alienate or otherwise deal with the property without the consent of the claimant; a perpetual order of injunction restraining the defendant by himself, servants, agents or assigns from selling, leasing, transferring, alienating or dealing with the property situate at Block 141, Flat 1, LSDPC Medium Cost Housing Estate, Ogba, Lagos with the consent and approval of the claimant; and a perpetual order of injunction restraining the defendant by himself, servants, agents or assigns from removing or ejecting the claimant and her children from the property. The appellant and the respondent were married couples living in the property until the dissolution of their marriage. The appellant after the dissolution of their marriage continued to live in the house with their three children of the marriage whereby she claimed to have a right as part owner of the premises. At the High Court the Appellant had sought to retain the property in issue, claiming that she was a joint owner of the property. The respondent put in his defence and counterclaimed that he is the owner of the property. He tendered all the documents showing how he purchased the property in issue. At the end of the trial, the Lagos State High Court found as a fact that the claimant had no claims to the property. The High Court declared the Respondent owner of the property in issue who has an inextinguishable right to do whatsoever he desired with his property. The respondent thereafter gave the appellant notice to quit. The claimant was dissatisfied with the judgment, hence this appeal. The appellant filed her brief in which two (2) issues were formulated for the determination of the appeal as follows:

    i. Whether a tenant at will is legally entitled to be served a notice to quit the premises as well as a seven days notice of intention to recover possession before the tenant can be legally evicted.

    ii. Whether a clamant is required to include a document on its list of documents before such a document can be admissible at trial.

    The respondent adopted the issues as formulated by the appellant for the determination of the appeal.

    Arguing issue 1, learned counsel to the appellant submitted that in order to legally evict a tenant from the premises, the tenancy must first be determined by the service on the tenant of a notice to quit. By virtue of the Rent Control and Recovery of Residential Premises Law of Lagos State Cap R6 Laws of Lagos State 2003, the required length of notice necessary to determine a tenancy at will is seven days. Counsel further submitted that to recover possession from a tenant at will a landlord is required to issue two statutory notices. The first is a notice to quit, which determines the tenancy. The second is a notice of intention to apply to court to recover possession. Counsel stated that this requirement is fundamental to any action to recover possession and non-compliance invalidates the said action. Counsel referred the court to Odutola vs. Papersack (Nig.) Ltd. (2006) NWLR (Pt. 1012) 470; (2006) LPELR-2259(SC). Counsel argued that a tenant at will is to be served with the notice to quit which as stipulated in the law, is a week’s notice, after which the tenant can be given the seven days notice of the landlord’s intention to apply to the court to recover possession of the premises.

    Counsel to the respondent submitted that the only notice required of a landlord in the case of a tenant at will is seven days notice of intention of the landlord to recover possession. That the law states that a tenancy is determined by only seven days notice and not two statutory notices as contended by defendant’s counsel. Counsel submitted that the respondent gave the appellant 14 days notice more than the seven days stipulated in Section 14 of the Rent Control and Recovery of Residential Premises Law of Lagos State 2003. Learned counsel submitted that the appellant, the tenant, is not a rent paying one and as such was she entitled to be served any notice. Counsel aligned himself to the decision in Odutola vs. Papersack (Nig.) Ltd. (2006) Odutola vs. Papersack (Nig.) Ltd. (2006) NWLR (Pt. 1012) 470; (2006) LPELR-2259(SC) and stated that there was no where the Supreme Court specifically stated that two notices were required in respect of a Tenant at will. Counsel, therefore, urged the court to hold that the notice issued on the appellant is proper notice and resolve this issue in favour of the respondent.

    In determining this issue the court stated that both parties at the trial court agreed that the tenancy was one at will. Citing the case of Odutola vs. Papersack (Nig.) Ltd. (2006) NWLR (Pt. 1012) 470; (2006) LPELR-2259(SC) the court stated that in a tenancy at will, the lessee (the tenant) is the tenant at will because the lessor (the landlord) can send him packing at any time the lessor pleases, subject only to issuance of proper notice by the lessor. The court stated further that the trial court had already declared the Respondent the safe owner of the premises and the appellant invariably knew that at any moment that the respondent would give her seven days notice to quit. The court noted that the Respondent by a letter dated November 7, 2007, Exhibit P16, gave the appellant a notice that he would repossess the property on November 20, 2007 and the notice gave more than seven days. The court stated that the landlord, vide Exhibit P16, had given the statutory seven days notice to the appellant to quit and his intention to repossess his property. The court held that the respondent did comply with Section 14(1)(a) of the Rent Control Law in giving the appellant adequate notice to quit or intention to repossesses his property. This issue was resolved against the appellant.

    On issue 2, learned counsel to the Appellant submitted that the trial Judge erred in law when she struck out the Appellant’s claim in the lower Court and went ahead to still rely on Exhibit P16 filed by her. Counsel argued that the said Exhibit P16 was not listed by the respondent in this appeal. Counsel referred the Court to Order 3 Rule 2(1) of the High Court of Lagos State (Civil Procedure) Rules 2004 which requires all originating processes to be accompanied by copies of all documents to be relied on at the trial.

    Counsel argued that the respondent did not file Exhibit P16 along with his pleadings and the trial Judge had not otherwise ordered or directed that Exhibit P16 was admissible for special reasons. Counsel, therefore, urged the court to discountenance Exhibit P16 and refuse to admit it in evidence and resolve issue 2 in favour of the appellant. In response, the learned counsel to the respondent submitted that Exhibit P16 was properly admitted in evidence without any objection by the Appellant’s counsel. That the trial court properly admitted Exhibit P16 and, therefore, need not make any further direction or order concerning it. Since the appellant’s counsel did not object to the tendering of Exhibit P16, the issue that the Exhibit was wrongly admitted can no longer be raised on appeal. Counsel argued further that Exhibit P16 is a relevant document to the Respondent’s case so it was properly admitted. See Oyediran v. Alebiosu (1992) 5 NWLR (Pt. 249) pg. 550; (1992) LPELR-2868(SC). Counsel, therefore, urged the Court to hold that Exhibit P16 was properly admitted by the lower court. The fact of not listing as part of the documents sought to be relied on is just a mere irregularity. Counsel urged the court to resolve this issue in favour of the respondent.

    The court held that what determines admissibility or otherwise of a particular piece of evidence or document at the court of law is the Evidence Act. See Klifco (Nig) Ltd. v. NSITFMB (2005) 6 NWLR (Pt. 922) pg. 4; (2004) LPELR-5788(CA). That the appellant had already listed the document and it formed part of the case of the appellant. When she did not lead evidence, the Respondent, therefore, tendered it and was received in evidence without objection. The court held that Exhibit P16 was rightly presented and received in evidence as P16. This issue was resolved against the appellant.

    The two issues articulated by the Appellant were resolved against her. This appeal was held to be unmeritorious and therefore, was dismissed. The judgment of the lower Court was affirmed.

     

    Edited by LawPavilion

    LawPavilion Citation: (2014)

    LPELR-23358(CA)

     

     

  • Appeal to Governor Babangida Aliyu

    SIR: We wish to appeal to the Governor  Babangida Aliyu  of Niger State to rescind  his move to relocate all furniture makers scattered in various parts of Minna, the state capital due to the activities of a few of our members operating near the Government House.

    We the furniture makers in Minna, the state capital are law-abiding people, who have through the years carried out our duties within the provisions of the law. In the process, we also contribute to the growth of the economy of the state through our craft.

    However, recently, because of the excesses of some of our members operating near Tabila House, the seat of power, the governor has directed that all furniture makers should be relocated to Mandela Road, a remote part of Minna where we may not get patronage.

    We want to appeal to the governor to kindly allow us to stay at our current places, and if anyone should be relocated, it should be only those furniture makers who have contacted the state government in one way or another, and expressed their desire to move.

    While we are not opposed to change and efforts to develop the place, we believe that such movement should be a gradual thing, to be carried out only after necessary facilities must have be put in place in the state and enough awareness must have be created.

    The move by some executive members of the association to move to the proposed location does not represent the view of all of us, and should therefore, be rejected by the state government.

     

    • Ibrahim Mudasiru,

    Kanchaga, Minna, Niger State.

     

  • Court of Appeal declares title of Ajiwe land in favour of family

    The Olumegbon family of Ajahland, Lagos has lost the right to the title of the sprawling Ajiweland to the Ajiwe family, courtesy of the Court of Appeal.

    The appellate court sitting in Lagos  reaffirmed the title of the descendants of Ajiwe family as the authentic owners of Ajiwe village.

    The appellate court, in a  judgement delivered in the appeal between Taiwo Elemoro and Chief Fatai Abiodun, the Olumegbon of Lagos, upturned the judgment of a Lagos High Court on the matter.

    The appellate court  apart from restraining the Olumegbon family against selling or doing anything to the land without first informing the Ajiwe family also awarded the sum of N50,000 to be paid as cost in favour of the Ajiwe family.

    The appellants as claimants had sued the respondent as defendant at the High Court of Lagos State along with other trespassers.

    The High Court of Lagos presided by Justice Beatrice Adesuwa Oke-Lawal  had in her judgment delivered on February 2, 2012 in suit No. ID/2638/2001, in which Chief Olumegbon was sued as the second defendant, declared that the land measuring 21.886 hectares belong to the Olumegbon family.

    The lower court, while refusing the claim of the appellants, declared that the respondent is the overlord of Ajah and environ.

    But the Ajiwe family had through their lawyer, Mr. Gbenga Ojekunle, gone to Appeal Court to assert their rights following the forceful seizure of Ajiwe village land ,which the Lagos State Government had excised to the Appellants vide the Lagos State Official Gazette No. 9, Vol. 9, of 28th March, 1996, The appellants as claimants sued the respondent as defendant at the High Court of Lagos State along with other trespassers.

    However the Court of Appeal in its judgment delivered by Justice Abimbola Osarugue Obaseki-Adejumo, Justice Amina Augie and Justice Y. B Nimpar set aside the lower court judgment.

    The Appellate Court declared that the appellants have  proved that they are entitled to a declaration of title over the land excised to Ajiwe village indigenes by the Lagos State government.

    “Following from the above resolution of issues one and two in favour of the Appellants, the appeal succeeds and the judgement of Hon. Justice Beatrice Adesuwa Oke-Lawal delivered on February2, 2012 is hereby set aside. The appellants proved that they are entitled to a declaration of title over the land excised to Ajiwe Village indigenes by the Lagos State Government.” The Court of Appeal declared.

    “The claim of the appellants succeeds and therefore, a declaration is hereby made that the land measuring 21.886 hectares of land which is the land area covered by the excision belongs to the claimants to hold same in trust for the descendants of Ajiwe village.” The Court of Appeal further declared.

    The Appeal Court upheld the argument of the appellants that the controversial land having previously been acquired by the Lagos State Government extinguished all previous rights over the land stressing that the alleged right of the respondent also went away with that acquisition.

    “It is beyond doubt that once there is a compulsory acquisition of land, the title of the former owner becomes extinguished by the reason of the acquisition and when the acquired land is returned as in this case, a new root of title by grant will be created.

    “This means therefore that the compulsory acquisition of the 823 square meters of land in the Lekki Peninsula by the government of Lagos State had extinguished the previous right of both claimant to the land. That furthermore, the excision of several villages including Ajiwe has created a new root of title for the people of Ajiwe village and those other villages and therefore the issue of having their root of title traced to Ogunsemo and or Olumegbon is uncalled and ineffective as those roots are gone with the acquisition and the root of Ajiwe village is now rooted in the Lagos State government” the appeal court stressed

    On the claim by the respondents that they are indigenes of Ajiwe which the appellants denied, the court held that there is a distinction between residency and indigeneship pointing out that one can be an indigene of a place but not resident there and one can also reside in a place and not be indigenous to it.

    “On this score, the trial court erred when it held that the excision was not to the claimants after finding that there was indeed an excision. The gazette says to indigenes and that is not a single person’s name, that the names of the appellant can be said not to correspond. Indigene is a group of people who are natives to Ajiwe because it is a grant from government, it must not necessarily be to the original owners of the land but could be to strangers and in this case it was to the people who are native to Ajiwe. The claimants are native to Ajiwe”, the Appeal court further stated.

    The Appeal Court held that the appellants have  proved that they are entitled to a declaration of title over the land excised to Ajiwe village indigenes by the Lagos State Government and issued a perpetual injunction restraining the respondents from encroaching on the land and doing such acts as selling, building, developing any part thereof without the consent and permission of the appellants, i.e the Ajiwe family

    Restraining the respondents, the Court of Appeal stated: “Again a perpetual injunction restraining the Respondent, his agents, servants, assigns, successors in title or anybody whosoever, claiming through, by or for him from trespassing on the Appellants’ land and from disturbing the appellants from peaceful and quiet enjoyment of their excised land. The appeal succeeds. Cost of N50,000.00 to the Appellants”

  • Appeal Court reinforces precedent on suing of non-juristic parties

    The Respondent in this appeal was a supernumerary police officer working at the Nigeria Police (SPY) Shell Police Command Ogunu Warri. He was posted to work on night shift at one of the 1st Respondent’s Offices on 27th August 2000. At the close of his shift that night he went home but upon returning to the office on 28th August 2000 to collect his keys which he forgot, he was arrested on the allegation that there was an attempt to break into one of the offices the previous night that he was on duty. He was eventually released on 30th August 2000 after an orderly room trial which recommended his dismissal. Peeved by the turn of events, the Respondent instituted proceedings at the the Warri Judicial Division of the High Court of Delta State, the Respondent herein, as Plaintiff before the lower court claiming a declaration that his purported discharge and dismissal from service by the Respondents/Defendants was illegal; a declaration that the Plaintiff is still in the service and still in the employment of the 1st Defendant; payment of all the Plaintiff salaries and all entitlements from September 2000 till date; and the sum of N100,000,000.00 (One Hundred Million Naira) for his unlawful, illegal and wrongful detention by the Defendants. The parties filed and exchanged pleadings and the action was contested on the pleadings as filed. The Respondent testified for himself in proof of his case and did not call any other witness while one witness testified for the Appellants in defence of the action. In its judgment delivered on the 11th day of November 2005, the High Court of Delta State entered judgment in favour of the Respondent with a declaration that the purported discharge and dismissal of Plaintiff from the services of the Defendants was illegal, null and void and of no legal effect whatsoever; an award of the sum of N85,000,000.00 (Eighty Five Million Naira only) to the Plaintiff, as damages for his unlawful, illegal and wrongful detention by the Defendants from 28/8/2000 to 30/8/2000. The Appellant being dissatisfied with the judgment lodged an appeal against the same at the Court of Appeal.

    The Appellants distilled three issues as arising for determination in their brief of argument, the Respondent also distilled three issues for the determination of the appeal. The Court after duly considering the issues as formulated by the parties considered and determined this appeal on the following issues:

    1. Whether or not the learned trial judge had the jurisdiction to entertain and determine the suit of the Respondent?

    2. Whether by the evidence before the trial court, the Respondent proved his case so as to entitle him to judgment?

    In arguing issue number one, the Appellants presented their postulations in two facets, viz., absence of jurisdiction on account of the action being against the Nigeria Police Force which is an agency of the Federal Government and lack of jurisdiction on account of the Appellants as sued not being juristic persons. The contention of the Appellants was that the Respondent’s claim falls within Section 251(1)(q) and (r) of the 1999 Constitution which vests exclusive jurisdiction in the Federal High Court in respect of civil causes and matters dealing inter alia, with interpretation of the Constitution as it affects the Federal Government or any of its agencies and for any action or proceedings affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.

    On the issue of the juristic capacity of the Appellants, it was submitted that the names of the Appellants as reflected in the Writ of Summons are not persons known to law, in consequence of which the court did not have the competence to adjudicate between the parties. The Appellants argued that the name of the 1st Appellant as disclosed in the writ does not disclose that the 1st Appellant is a legal person and that being a limited liability company registered under the Companies and Allied Matters Act, the 1st Appellant cannot be sued except in its incorporated name which by Section 29 of the Companies and Allied Matters Act must end with the word “Limited”. It was then contended that the 1st Appellant as sued lacks the capacity to be sued, consequent upon which the action was liable to be struck out. The case of ATAGUBA vs. GURA (2005) 126 LRCN 982 at 985 ratio 1; (2005) LPELR-584(SC) was relied upon. It was submitted that the Respondent purporting to regularize the name of the 1st Appellant in the Further Amended Statement of Claim without leave of court to amend the process did not confer on the 1st Appellant the status of a legal person to be sued in law. The Appellants concluded that since they were non-juristic persons the lower court lacked jurisdiction to entertain the suit.

    In reply, the Respondent submitted that it is the claim before the court that determines the jurisdiction of the court and that the reliefs claimed were predicated on contract of employment between the 1st Appellant and the Respondent, damages resulting from breach of the contract by the 1st Appellant and the tortuous liability of the Appellant for the wrongful and unlawful detention of the Respondent. It was posited that the reliefs claimed were outside the jurisdiction of the Federal High Court. The case of ONUORAH vs. KRPC LTD (2005) 6 NWLR (PT. 921) 392; (2005) LPELR-2707(SC) was referred to. The Respondent maintained that the reliefs claimed did not fall within Section 251(1) of the 1999 Constitution and that the fact that a party to an action is an agency of the Federal Government cannot ipso facto clothe the Federal High Court with jurisdiction; and that all matters which did not fall within Section 251 of the 1999 Constitution were still within the jurisdiction of a State High Court.

    On the submission that the Appellants were not juristic persons, the Respondent contended that the Further Amended Statement of Claim had referred to the 1st Appellant’s name with the word “Limited” added thereto and that though the word “Limited” was inadvertently omitted in the writ of summons, the defect was cured in the Further Amended Statement of Claim which supersedes the writ of summons. The Respondent stated that the Appellants did not oppose the amendment to the pleading and that issues were never joined as to whether the 1st Appellant was not a juristic person, The Respondent maintained that the Appellants can therefore not be heard to complain about the legal status of the 1st Appellant on appeal since they failed to object to the amendment to cure the omission at the trial court. The case of N.U.B. LTD vs. SAMBA PET. CO. LTD (2006) 12 NWLR (PT 993) 98 at 123; (2006) LPELR-5974(CA) was relied upon.

    On the question of whether the cause of action falls within the jurisdiction of the Federal High Court, the Court held that as rightly submitted by the Respondent’s counsel it is the claim before the Court that determines the jurisdiction of the Court. See OLORUNTOBA-OJU vs. DOPAMU (2008) 7 NWLR (PT 1085) 1 at 23; (2008) LPELR-2595(SC). The Court having given an insightful consideration to the reliefs claimed by the Respondent, was satisfied that they are not in respect of matters that fall within the provisions of Section 251(1) of the 1999 Constitution, wherein exclusive jurisdiction has been vested in the Federal High Court.

    On juristic capacity, the Court held that neither of the Appellants is a juristic person and the Respondent did not commence the action against proper parties. The Court held that it is hornbook law that a Court cannot engage in adjudication when the proper parties are not before it. The Court held that there was absolutely nothing to show that either of the Appellants, in the name sued, is a juristic person and their lack of jural capacity robbed the Court of jurisdiction to entertain the action. See OLORIODE vs. OYEBI (1984) 1 SCNLR 390; (1984) LPELR-2591(SC) and ZAIN NIGERIA LTD vs. ILORIN (2012) LPELR (9249) 1. This issue was partly resolved in favour of the Appellants as it relates to their juristic capacity.

    On issue two, the Court held that an appellate Court is duty bound to interfere with and reverse the decision of a trial Court arrived upon a wrong premise or which is otherwise perverse. See ADEGOKE vs. ADIBI (1992) 5 NWLR (PT 242) 410; (1992) LPELR-95(SC). The decision of the lower Court was held to be neither founded on sound legal principle nor supported by the facts on record. The Court held that the lower Court got it wrong on the existence of an employer/employee relationship between the 1st Appellant and the Respondent. And the lower Court equally got it wrong on the liability for unlawful arrest and detention. The Court held that the decision of the lower Court was clearly perverse and cannot be allowed to stand. Accordingly, issue two was resolved against the Respondent.

    In a summation the Court held that the appeal was immensely meritorious and it was allowed. The judgment of the lower Court delivered on 11th day of November 2005 was set aside. The Respondent’s action was thereby dismissed.

    Edited by LawPavilion

    LawPavilion Citation: (2014) LPELR-23325(CA

  • Law School scholarship: Appeal to KWSG

    SIR: It has become a tradition, not to mention a norm, for state governments to, as part of their educational policy, assist their indigenous law students in the payment of law school fees. This acceptable tradition becomes necessary due to the humongous fee demanded by the Nigerian Law School which is currently over N300, 000. It must be noted that this career-threatening fee has cut short the dreams of many would-be lawyers in the country, leaving them frustrated, bruised and disillusioned.

    Having realised this, the Kwara State government under the leadership of Governor Fatah Ahmed has bought into the laudable idea through scholarship intervention to prospective law students. And this explains the reason for the disbursement of about N32million in 2013 to the 2011/2012 set, with a promise by the government to extend the same gesture to the 2012/2013 set.

    It is however unfortunate, not to mention surprising, that for over three months after their call, the Kwara State government has not deemed it fit to pay the 2012/2013 set. This development has not in any way helped the image of the government. It would be recalled that on June 4, 2013, one Olateju and others led a procession of law students (then on court attachment) to the Government House in Ilorin in order to press home their demand. The students were received by the Commissioner for Tertiary Education, Alhaji Mohammed Lade, who on behalf of the governor re-affirmed that the 2012/2013 set would be paid, even before the conclusion of their law school programme. The 2012/2013 set have since concluded their programme and have in fact been called to the prestigious Nigerian Bar, but shockingly the state government has failed to live up to its promise! This is not fair at all. The 2012/2013 set are not asking for too much; they are simply asking that the Kwara State government fulfil its promise. Besides, it would amount to discrimination for the government to give scholarship to 2011/2012 set and then abandon the 2012/2013 set.

    Bearing in mind the time-worn saying that it is better late than never, the undersigned would like to appeal to the state government, especially Governor Ahmed to, as a matter of urgency, settle the 2012/2013 set in the interest of all.

    •Alatise Taofeeq, Iyanda Ismael and Bakari Idris

    Ilorin.