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LATEST AND NOTABLE CASE LAW DEVELOPMENTS UNDER NIGERIAN LAW

By Bizibrains Okpeh

Introduction

Are you a lawyer or do you think you are? A true lawyer must never cease not just to learn the nuances of his profession but also generally. This is what differentiates a true lawyer from the one who thinks he is. No one has the monopoly of (legal) knowledge. It must be won; it is not gifted, neither is it inherited. Put in the words of Gay, “Learning by study must be won; Twas ne’er entailed from son to son.” (cited in Glanville Williams: Learning the Law p.70).

While knowledge of statutory law (and any other law) is most desirable, perhaps no lawyer can ever attain the status of an outstanding lawyer without a near excellent knowledge of case law. In fact, it may indeed be what stands between you and your “Fawehinmi.” For as Tennyson posited, and rightly so, “Mastering the lawless science of our law, That codeless myriad of precedent (case law), That wilderness of single instances, Through which a few, by wit or fortune led, May beat a pathway to wealth and fame.” (cited in Glanville Williams: Learning the Law p.92).

Latest Case Law Developments

1.Although a counter-claim is a separate, independent and distinct claim from the main claim, and cannot be affected by any defect in the main claim, where the defect in the main claim is incurable and touches on jurisdiction—to wit, robs the court of the jurisdiction to entertain the claim—the court must strike out the suit, together with the counter-claim.

For the avoidance of doubt, before the peculiar development stated above, this was (and still is) the general position of the law on counter-claim as stated in Shemar Ltd v Moki Industries (2000) LPELR-887 “For all purposes except those of execution, the plaintiff’s claim and the defendant’s counter claim are two separate actions and the court gives separate judgment and costs both in the original claim and on the counter claim. Accordingly, if for any reason the plaintiff’s action is stayed, discontinued, struck out or dismissed, the counter claim may be proceeded with.”

The court further emphasised in the case of Susainah (Trawling Vessel) v Abogun [2007] 1 NWLR (Pt.1016)455 to the effect that “This distinction is not symbolic or symbiotic…Since the Judgment in the principal action is not interdependent on the judgment in the counter claim, a vice in one cannot destroy the other.” This is further because “Both are like rivers Niger and Benue which like the principle of law and equity flow in the same stream but their waters will never mix” (Dimacon Industries Ltd v Ajayi-Bembe (unreported) Appeal No. CA/L/421/2013 delivered on 19 May 2017, per Georgewill, JCA.

Now, here is the current unprecedented development. While affirming the general position on counter-claim adumbrated above, the Court of Appeal in Aberuagba v Oyekan [2020]2 NWLR (Pt.1707)165, a case of “first impression” held thus; “A counter-claim is a separate and independent claim in the same action with the plaintiff’s claim not as a matter of action but in relation to proof and distinct treatment in adjudication.

Thus, when the court lacks jurisdiction to entertain the main claim, a counter-claim cannot stand on its own. To insist that the counter-claim in the circumstance can be prosecuted, when there is no writ or statement of claim originating the action, amounted to initiating a claim by way of counter-claim, as against the four known methods of commencing an action, to wit, writ of summons, originating summons, originating motion and petition.” (per Barka, JCA). The Court of Appeal further buttressed that, “The above (general) rule of law which treats the counter-claim as a separate and distinct claim, does not save the counter-claim when the court is deprived of jurisdiction to entertain the main claim.” (per Owoade, JCA).

Comment:
It should be noted that the general principle is still very much the law on counter-claim. It is only when the issue is held to turn on jurisdiction that the court will depart from the general rule. Being a case of “first impression, ” this is the ratio in Aberuagba’s case and not otherwise. After all, as was held by the Supreme Court in The State v Kapine [2019]18 NWLR (Pt.1703)1 at 17, cases are authorities for what they decide.

2.In interpreting the word “from” for the purpose of determining whether or not a pre-election action is statute-barred as per the provision of section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 as amended by the Fourth Alteration Act, No. 21 of 2018, the date the course of action arose “shall” be reckoned with.

For some more clarity, in dismissing the Appellants appeal to the Supreme Court in the case of Zailani v Gumau [2020] 2 NWLR (Pt.1709)452 it was held thus; “In the instant case, the appellant’s complaint, being his wrongful substitution, was the event, decision or act that occurred on 17th October, 2018. From 17th October (the date inclusive) to 31st October, 2018 [when the appellant filed his action] was 15 days…and for the purpose of section 285(9) of the Constitution, as amended, the suit was therefore statute-barred since it was not filed within 14 days from the date of the occurrence of the event, decision or action complained of in the suit.” (see also Idiagbon v APC [2019] 18 NWLR (Pt.1703) 102 at 120-124) (underline mine)

However, barely one month after the above decision was delivered (it was delivered on Friday, 21 June 2019), the Supreme Court, on Friday, 5 July 2019, in the case of Garba v APC [2020] 2 NWLR (Pt.1708)345 at 360 delivered another judgment where it excluded the date the cause of action arose thus; “From the passage I have reproduced above (that is the Appellant’s originating summons)…I am satisfied that the cause of action occurred on the 7th of October, 2018. The appellant’s suit was filed on the 29th of October, 2018, 22 days (excluding the 7th October) after the conduct of the primary election. Clearly, the action was filed outside the prescribed period and it is therefore statute-barred.” (see also Ibrahim v Abdallah [2019]17 NWLR (Pt.1701)293 at 314; Daniel v Ayala [2019]18 NWLR (Pt.1703)25 at 40).

Comment:
It appears the Supreme Court is not consistent with its interpretations of the word “from” in section 285(9) of the Constitution which provides that, “Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of.”

It has always been the general law that, except there is anything to the contrary on the face of a statute or instrument, in construing the word “from,” the mentioned date is usually excluded as opposed to the interpretation of the word “on” where the mentioned date is reckoned with. What we now have is a difficulty as to which of the two most recent cases stated above creates a binding precedent on the lower courts.

The above being what it is, it suffice to say that when there is a seemingly conflicting decisions of the Supreme Court on the same issue, the latest in time prevails. This is one of the purports of the Supreme Court’s decision in the case of Osakue v Federal College of Education (Technical) Asaba [2010]10 NWLR (Pt.1201)1. By this, it means the decision in Garba’s case should be preferred (and it is indeed preferred) over that of Zailani’s.

With respect, I humbly think that there is need for consistency of Supreme Court’s decisions in this regard (and generally). Once the two variables, that is, the date when the cause of action arose and the date when the action is filed, which are issues of fact as per the parties’ pleadings, are determined, there should then be some measure of certainty as to the mode of interpreting whether or not the action is within the limitation time as prescribed by the Constitution. This is largely, if not conclusively, amenable to a universal formulation or construction. So that when the court strikes its gavel on the bench of justice, it should not be perceived to sound hot and echo cold at the same time.

3.A judgment entered upon a guilty plea is a consent judgment and cannot be appealed against, except with the consent or leave of court as provided under section 241(2)(c) of the Constitution.
See the case of Adamu v FRN [2020] 2 NWLR (Pt.1707)129 at 163 where the Supreme Court held thus; “By virtue of section 241(2)(c) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, nothing in the section shall confer any right of appeal without leave of the Federal High Court or a High Court or of the Court of Appeal from a decision of the Federal High Court or a High Court made with the consent of the parties or as to cost only. In the instant case, the appellant’s appeal to the Court of Appeal was against a consent judgment (the appellant entered a guilty plea upon which he was convicted and sentenced). It was therefore incompetent and an abuse of the court’s process by dint of section 241(2)(c) of the Constitution and the judgment of the Court of Appeal, delivered on 31st May 2017, from which the appellant purported further appealed to the Supreme Court was similarly incompetent, abuse of court process, ultra views and a nullity.” (per Eko, JSC).

4.Printouts of electronically generated evidence or e-documents constitute primary documentary evidence. See AG Federation v Kashamu (No.1) [2020]3 NWLR (Pt.1711)209 at 276 where the court held that “Evidence generated from Global Satellite Mobile System(GSM) is computer evidence. Hence, mobile phones are computers and printouts of messages delivered through GSM are required as primary documentary evidence vide section 258(1) of the Evidence Act which defines documents to include any device by which information is recorded, stored or retrievable including computer output.”

5.A lawyer cannot after retirement accept retainership in connection with a matter he had previously acted in judicial capacity, including ministerial or administrative functions as a legal officer (e.g AGF, SGF, DPP, SGS etc.) in ministry of justice of the Federation or a State.
See the case of State v Ughanwa [2020]3 NWLR (Pt.1710)22 at 39-40 where the Court of Appeal reversed the decision of the trial court which had held that the respondent only acted in ministerial or administrative capacity in connection with the retainership under consideration, and not in “judicial capacity” (that is to say he was not a judicial officer) as contrmplated under Rule 6(1)(2) of the Rules of Professional Conduct for Legal Practitioners, 2017.

6.A letter or notice of resignation need not be formally accepted by the employer before it takes effect and the employer has no discretion whether or not to accept same, as there is absolute power to resign. Also, a notice of resignation is effective, not from the date of the letter or from the date of the acceptance, but from the date the letter is received by the employer or his agent.
See Ibrahim v Abdallah [2019]17 NWLR (Pt.1701)293 at 315 SC.

7.A building plan approved by government or its lawful agency raises a presumption of regularity under section 168(1) of the Evidence Act, 2011 in favour of the title of the holder. This title remains good in law and equity until the presumption is rebutted by superior and proved evidence.
See Mohammed v Farmers Supply Co. (KDS) Ltd [2019]17 NWLR (Pt.1701)187 at 207

8.An employee who accepts salary in lieu of notice of termination of appointment is estopped from complaining later that his employment was not properly determined.
See Gbedu v Itie [2020]3 NWLR (Pt.1710)104 at 133

9.An appellate court must concern itself only with finding out whether the decision of the lower court appealed against is correct and not whether the reasons for the decision are. See Zailani v Gumau (supra)

Notable Pronouncements

10.“While the physical presence means a lot, the truth is that the true test of love is not necessarily in physical presence.”
See Okobi v Okobi [2020]1 NELR (Pt.1705)301 at 341

11.“Firstly, I must observe that learned counsel in relying on Alake v The State in paragraph 4.03 of his brief lifted ratio 4 at page 263 of the law report. It must be borne in mind that the numbered ratios (sic: rationes) in the law report are not necessarily the ratio decidendi in the case. They are merely what the authors of the law report consider the ratios (sic: rationes). In other words, it is essential to read the entire judgment to appreciate the reasoning of the court.” (per Kekere-Ekun, JSC).
See Obioma v State [2020]3 NWLR (Pt.1710)45 at 63; See also Kolawole v Alberto [1986]1 NWLR (Pt.14)76 where Ayorinde, J, having refused to follow the case of Boot Pure Drugs Co. Nig. Ltd. v Saki Estates Nig Ltd (1976)6 CCh, dismissed the applicant’s application for renewal of writ. Upon appeal, the Court of Appeal held to the effect that the ratio decidendi in Boot’s case, as so reported in law reports is slightly misleading.

Conclusion
There is perhaps no better way to end this write-up than with the witty words of Scott. In urging every lawyer to be a reader, the writer concluded that,“A lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect.” (cited in Glanville Williams: Learning the Law p.269).

By the Supreme Court’s warning in Obioma’s case (supra), numbered rationes decidendi in law reports or indeed any book or written material, including this write-up, are not final and conclusive as same may be misleading.

In the final analysis, the only way to properly appreciate this write-up is not only to glance over the cases reported in the law reports but to thoroughly read the entire judgment (entire judgment means the leading judgment and the concurring–and dissenting where there is one—judgment). Do this now and always and the dry bones of your “Fawehinmi” may yet come alive someday.

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