PILLARS CASE: HAS SUPREME COURT ALTERED TENANCY LAW?

The Tenancy Law imposes a strict procedure for the recovery of premises. Failure to comply with this near inflexible procedure invariably invalidates any suit for the recovery of possession. FEMI DODO argues that it may be a new dawn in this area of law in light of the Supreme Court decision in PILLARS V DESBORDES

  • INTRODUCTION

Recovery of premises is governed by the tenancy law or the recovery of premises laws of each state as the case may be. The case of PILLARS NIG. LIMITED V DESBORDES & ANOR (2021) 12 NWLR (pt.1789) P.122., delivered on Friday, the 5th day of February 2021 by the Supreme Court is upon an appeal against the Judgment of the Court of Appeal, Lagos delivered on the 8th day of May, 2009, affirming the judgment of the High Court of Lagos State delivered on the 8th day of December 2000. The action and the subject matter property being related to Lagos State, the legal analysis in this article will be confined to the Tenancy law of Lagos State 2011, the High Court of Lagos state [Civil procedure] Rules 2019 and other relevant Laws of Lagos State of Nigeria. 

  • BACKGROUND

The Tenancy Law imposes a strict procedure for the recovery of premises which failure to comply will invalidate any suit for the recovery of possession. The rationale for this strict procedure is to protect tenants – usually vulnerable in the tenancy relationship – from the excesses and abuses of landlords as well as prevent illegal holding over by dishonest tenants.

Any slip in the procedure such as failure to serve notices to quit or the seven [7] days notice of owners intention to apply to recover possession or a defect in computation of the length of the notice will invalidate the suit for recovery of possession, render same a nullity and rob the court of its jurisdiction to entertain any suit for recovery of possession arising therefrom. 

  • BRIEF STATEMENT OF THE LAW ON THE PROCEDURE FOR RECOVERY OF PREMISES

The Law is settled that where a landlord wants to recover his property from a tenant, he must unless the tenancy has been determined by effluxion of time, serve on the tenant a notice to quit which terminates the tenancy and alter the position of the holder of the premises from tenant, to a tenant at sufferance, to statutory tenant.

Section 13 of the tenancy Law of Lagos State 2011 provides thus-

13.-(1) where there is no stipulation as to the notice to be given by either party to determine the tenancy, the following shall apply-

(a) a week’s notice for a tenant at will;

(b) one (1) month’s notice for a monthly tenant;

(c) three (3) months notice for a quarterly tenant;

(d) three (3) months notice for a half-yearly tenant; and

(e) six (6) months notice for a yearly tenant

(2) In the case of a monthly tenancy, where the tenant is in arrears of rent for six (6) months, the tenancy shall lapse and the Court shall make an order for possession and arrears of rent upon proof of the arrears by the landlord.

(3) In the case of a quarterly or half-yearly tenancy, where the tenant is in arrears of one (1) year rent, the tenancy shall lapse and the Court shall make an order for possession and arrears of rent upon proof of the arrears by the landlord.

From the clear reading of section 13 [2] & [3] of the tenancy Law of Lagos state, a notice to quit as it relates to arrears of rent can only be dispensed with, where a monthly tenant is in arrears of six [6] months or, quarterly and half-yearly tenants are in arrears of at least one year of rent.

It is therefore clear from the reading of section 13 [2] & [3] that a notice to quit can never be dispensed with where a yearly tenant is in arrears of rent. Section 16 of the tenancy Law of Lagos state provides as follows:

“As soon as the term or interest on any premises has been determined by a written notice to quit as in Form TL2 or TL3, in the Schedule to this Law and the tenant neglects or refuses to quit and deliver up possession of the premises or any part of it, the Landlord or his agent may cause the tenant to be served with a written notice as in Form TL4, signed by the Landlord or his agent, of the landlord’s intention to proceed to recover possession, stating the grounds and particulars of the claim, on a date not less than seven (7) days from the date of the notice.”

Apart from the above provisos, the notices must substantially conform with the forms TL2, TL3 and TL3 as stated in the schedules to the Tenancy Law.

A valid notice to quit must contain the following:

  1. it must state the name of the land lord, see BASHUA V ODUNSI 15 NLR [PT 1] 52
  2. the notice must state the name of the tenant,
  3. the nature of the tenancy must be stated OLAOYE V MANDILLAS [1949] 19 NLR 59
  4. the fact that the addressee hold the premises as a tenant FASADE V NWABUNIKE 1974] 12 CCHCJ
  5. the date the tenant should quit and deliver up possession. LASAKI V DABIAN [1959]NNLR 12
  6. the notice must briefly describe the premises

Failure to observe the above mentioned essentials of a valid notice to quit will amount to an irregularity and invalidate the notice to quit.

In OSHODI V OKAFOR 1975 7 CCHJ 1093 it was held that a notice to quit which fails to describe the premises sought to be recovered is defective even if it gives the correct address for service. See KUYE V NWOGBOSO 1978 CCHJ 1073.

Also, it was held in NNADOZIE V OLUOMA 1963] 7 ENLR 77 that computation of time in notices begin on the day it was served on the tenant and not on the date written on the notice.

The above requirements of a valid notice to quit are sacrosanct and necessary to activate the jurisdiction of the court, failure upon which the notices will be invalid. Failure to serve the pre-action notices to wit the notice to quit and the seven days notice of owner intention to apply to recover possession, which are pre-action notices will invalidate any suit arising therefrom.

The law is trite that an action cannot be maintained in Court in clear violation of statutory provisions as same will be struck out for want of jurisdiction where it is manifest that due process was not followed prior to the filling of the action.

In AYINKE STORES LTD V OLA ADEBOGUN [2008] 7 CLRN 87, it was held as follows:

“…in summary, the service of valid quit notice is a precondition for the recovery of possession, as said earlier, the Claim of the Respondent was not brought by due process of Law and upon the fulfillment of the condition precedent…to the exercise of Jurisdiction… in the absence of such valid quit notice, under the law, the Claim of the Respondent was not properly instituted therefore the Respondent’s Claim should have been Struck out.”

There are several Authorities to the effect that service of a pre-action Notice is a necessary condition precedent for the commencement of an action that requires it. In NIGERCARE DEV. CO LTD V A.S.W.B.  YOLA [2003] FWLR [PT186] 669, it was held thus:

“Non-Compliance with the provision of a statute requiring pre action notice to be given to the Defendant goes to the competence of the suit, and of the Court and therefore the jurisdiction of the Court”

Also in AYINKE STORES LTD V OLA ADEBOGUN [2008] 7 CLRN 87, it was held as follows:

in the present case being an action for possession, arrears of rent and mesne profit which requires mandatorily by Law statutory notices, i.e. quit notice and 7 days notice as well as letter of authority to issue same, these should be in place before the court could assume jurisdiction in possession matter. On failure of the landlord to serve valid notice of intention to recover premises on the tenant, the Action shall not be entertained”

In the Supreme Court case of SULE VS NIGERIA COTTON BOARD [1985] 2 NWLR [PT5] 17 it was decided as follows:

in the case of recovery of possession such as this, the service of the notice of intention to recover premises on the tenant is a condition precedent to the exercise of jurisdiction. In the absence of a valid quit notice under the law. The claim of the respondent as plaintiff for the recovery of possession would not be considered to have been properly constituted”

From the above cited authorities it is evident that the procedure for recovery of premises requires strict compliance with statutory provisions and any defect or error in the procedure is fatal to the suit for recovery of possession.

However, as we shall see below, in the case of PILLARS NIG. LIMITED V DESBORDES & ANOR (2021) 12 NWLR (PT.1789) P.122., delivered on Friday, the 5th February 2021, there was an attempt at shifting the position of the law by the Supreme Court.

  • THE CASE OF PILLARS V DESBORDES AND THE ATTEMPT AT CHANGING THE LAW

On Friday, 5th February 2021, the Supreme Court of Nigeria delivered a judgment in PILLARS (NIG.) LTD. V. DESBORDES & ANOR (2021) 12 NWLR (PT.1789) P.122.  The brief facts of the case are as follows:

Mr. Grant Desbordes (deceased) was the holder of title to the piece of land situate at Plot 6, Sabiu Ajose Crescent, Suruléré, Lagos. During his lifetime he entered into a 26 years Developer’s Lease Agreement with the Appellant, on 24th October, 1977. The lease agreement required the Appellant at its own expense on or before the 21st day of December, 1979 to erect a dwelling house and buildings in the position designed in the said plan together with the specification stated therein.

The Appellant is also to pay annually to Mr. Grant Desbordes (deceased), the sum of N2,250.00 on the 21st of December each year for the term of 26 years from 24th October, 1977. The Appellant failed to commence and conclude the construction within the stipulated period until the 21st December 1979, the expiration date stated in the lease.

The late Mr. Grant, the Lessor, wrote letters of complaint on non-compliance before he instructed his solicitor Alade Akesode, Esq. to issue a Notice of Breach of Covenant (Exh. E). The Lessor thereafter passed on.

Subsequently, the widow and children then instructed G.C.M. Onyiuke’s Chambers by a power of Attorney dated 1st April, 1992 to issue necessary statutory notices. The Appellants did not deny the delay or failure to erect the dwelling house but gave reasons in their communications to the Appellants counsel which included issues of high cost of building materials, change in Government banking policy on landing, late approval of the plan and the detention of its Managing Director in 1984 on grounds of politics. Not satisfied with the explanations, the Respondent filed the suit in the trial court.

The trial High Court and the Court of Appeal found that the appellant, the lessee, breached the terms of lease. Dissatisfied with the concurrent decisions, the appellant further appealed to the Supreme Court. The first issue and complaint was that the Court of Appeal was wrong to affirm the judgment of the trial court that the respondents pleaded and proved service of statutory “Notice of breach of covenant”, exhibit E.

The notice of appeal contained 5 grounds of appeal and 4 issues were submitted to the court for determination as follows:

  1. Whether the Court of appeal was right in affirming the decision of the trial court that respondents pleaded and proved service of statutory “Notice of Breach of Covenant “(Exhibit E) and “Notice to Quit” (Exhibit G) as required by the law.
  2. Whether it was proper for the lower court to deviate from the original dispute before it and decided the appeal on an entirely different issue raised suo motu without giving the parties the opportunity of addressing it on the new issue raised at the hearing of the appeal.
  3. Whether the lower court exercised its discretion judiciously and judicially by striking out issue numbers 3.0 (b) and (c) raised by the defendant/respondent in its Brief of Argument in the lower court against counsel’s application for merger of “Issues A & B”.
  4. Whether the plaintiffs/respondent have waived their right to forfeiture by demanding and collecting rent up to 1995 before the purported Notice to Quit (Exhibit A) was allegedly issued in line with the averments in paragraph 22 of the Defendant/Appellants’ statement of defence.

Of the Four [4] issues submitted by the appellant, only ISSUE 1 which relates to the notice to quit will be considered by the writer herein. It is pertinent to note that Issue 1 as it relates to notice to quit was struck out by his Lordship, Agim J.S.C. in his leading judgment when he held as follows:

The appellant states in its brief that Issue No. 1 is related to Grounds 1 and 2 of this appeal. This statement is correct in respect of only Ground 2 of this appeal. Issue No 1 has no relationship with ground 1 of this appeal that reads thusly:

“The learned Justices of the Court of Appeal erred in law in holding as follows:

“I am of the firm view that the trial judge came to the right conclusion that the evidence in support of service of notice and the fact that defence after denying in their pleading later admitted service of notice of Intention are strong basis for the  court to accept PW1’s evidence as credible against DW1 testimony.”

Particulars of error

  1. “Service of statutory notices is a condition precedent to the institution of the action [n for forfeiture of lease and therefore fundamental, as it goes to the root of the action [n as to vitiate the entire proceedings for failure to establish same.
  2. Issues were joined by the parties on the services of the statutory notice to quit. The burden of proof of the said notice (Exhibit G) is on the plaintiff/respondent. The Rules of pleadings that he who asserts must prove is applicable.
  3. The plaintiffs/respondents did not lead evidence of mode of service neither did they lead evidence of the person that effect the service of the statutory notice.
  4. It is not the duty of the defendant/appellant to aid the plaintiff/respondent to prove service of the statutory notice.
  5. The admission of the DW1 that service of Exhibit H (the notice of the lessor’s intention to recover the possession) was effected on the defendant/appellant is not sufficient proof of Exhibit E (Notice of Breach of Covenant) and G (Notice of Quit).
  6. Service of Exhibit E and G being fundamental cannot be inferred. Strict proof of same is very important.

This ground complains about the decision of the Court of Appeal affirming the decision of the trial court accepting PW1’s evidence as credible against the testimony of DW1.

The Issue No 1, which purports to derive from Ground 1 of this appeal, questioned whether the Court of Appeal was right in affirming the decision of the trial court that the respondents did plead and prove service of Statutory Notice of breach of covenant (ExhibIt E) and Notice of Quit (Exhibit G) as required by law. The subject matter of the question in this issue is obviously different from the subject matter of the complain in ground 1 of this appeal. Therefore it is wrong to say that the issue is related or derived from the said ground. An issue is derived from a ground where the subject matter of the issue is the same as the subject matter of the complain in the ground. As it is, no issue is distilled from Ground 1 of this appeal. By not raising any issue for determination from it, the appellant abandoned the ground. It is hereby struck out.

Let me also state here that to the extent that issue No 1 questions the decision of the Court of Appeal concerning the Notice to Quit (Exhibit G) it has no relationship with any of the grounds of this appeal.

Ground 2 which it purports to be related to, questions the decision of the Court of Appeal in respect of only the Notice of Breach of Covenant (Exhibit E) and nothing more. The said Ground 2 reads thusly:

‘The learned Justices of the Court of Appeal erred in law in holding that Service of Notice of Breach of Covenant dated 27th September 1988 (Exhibit E) was properly pleaded and proved by the plaintiff/respondent at the trial court.”

There is no ground of this appeal complaining against the decision of the Court of Appeal confirming the decision of the trial court that the respondents pleaded and proved service of notice to quit (Exhibit G). Therefore, the part of Issue 1 that questions the said decision of the Court of Appeal concerning the pleading and proof of the service of notice to quit (Exhibit G), not being derived from or related to any ground of this appeal is Incompetent and is hereby struck out.  As this court has established in a long line of cases overtime, any issue Raised for determination in an appeal that is not based on or covered by any ground of the appeal is not valid for consideration and must be struck out. See for example MODUPE V. THE STATE (1988) 9 SCNJ 1; (1988) 4 NWLR (PT. 87) 130 and REGISTERED TRUSTEES OF THE APOSTOLIC FAITH MISSION & ANOR V UMO BASSEY JAMES & ANOR (1987) 7 SCNJ 167.

I will now determine Issue No 1 to the extent that it questions the decision of the Court of Appeal affirming the decision of the trial court that the respondents pleaded and proved service of statutory “Notice of Breach of covenant (Exhibit E). “

As was rightly stated by his Lordship, Agim J.S.C. in his leading judgment the Court of Appeal In ODUGBEMI & ANOR V SHANUSI & ORS [2018] LPER – 44868 [CA] held on the effect of issue for determination that have been struck out as follows:

“The consequence therefore is that, where issues formulated for determination from a Ground or Grounds of Appeal are struck out, that puts an end to those Grounds of Appeal struck out. See IKPEAZU V. OTTI & ORS (2016) LPELR – 40055 (SC). In the instant case, the two issues formulated by the Cross-Appellant having been struck out, it means there are no other Grounds of Appeal, which can sustain the Cross-Appeal. That therefore puts an end to the Cross-Appeal.” Per HARUNA SIMON TSAMMANI, JCA (Pp 45 – 46 Paras B – D)

Notwithstanding that the issue 1 which relates to notice to quit was struck by his Lordship Hon. Justice Agim J.S.C in the leading judgment, his Lordship, Hon. Justice Ogunwumiju, J.S.C. in her concurring judgment to the leading judgment went ahead to discuss the issue and made a pronouncement on it as follows:

“The justice of this case is very clear. The appellant has held on to property regarding which it had breached the lease agreement from day one. It had continued to pursue spurious appeals through all hierarchy of courts to frustrate the judgment of the trial court delivered on 8/2/2000 about twenty years ago. After all, even if the initial notice to quit was irregular, the minute the writ of summons dated 13/5/1993 for repossession was served on the appellant, it served as adequate notice. The ruse of faulty notice used by tenants to perpetuate possession in a house or property which the landlord had slaved to build and relies on for means of sustenance cannot be sustained in any just society under the guise of adherence to any technical rule. Equity demands that wherever and whenever there is controversy on when or how notice of forfeiture or notice to quit is disputed by the parties, or even where there is irregularity in giving notice to quit, the filing of an action by the landlord to regain possession of the property has to be sufficient notice on the tenant that he is required to yield up possession.”

Further, the court after stating that filing of a writ of summons could cure any irregularity in the notice to quit, still had to pause to emphasize on the need to issue and serve statutory and proper notice to quit prior to filing of a suit for recovery of possession by stating as follows:

“I am not saying here that statutory and proper notice to quit should not be given. Whatever form the periodic tenancy is whether weekly, monthly, quarterly, yearly etc., immediately a writ is filed to regain possession, their regularity of the notice if any is cured. Time to give notice should start to run from the date the writ is served. If for example, a yearly tenant, six months after the writ is served and so on. All the dance drama around the issue of the irregularity of the notice ends. The court would only be required to settle other issues if any between the parties. This appeal has absolutely no merit and it is hereby dismissed.”

While the writer agrees with the overall decision of the Supreme Court in dismissing the Appeal which is Justice delivered based on substance rather thanks technicalities, the writer is of the firm view that the position of the Law on the requirement of a valid notice to quit has not shifted a bit.

  • IS THE CONCURRENT PRONOUNCEMENT OF THE COURT A RATIO OR AN OBITER DICTA ?

The law is settled that any pronouncement of the court on any issue not placed before it for adjudication does not form the ratio decidendi of the judgment which is binding as a matter of principle but is a statement made by the way, which is known as obiter dictum and does not generally carry any binding force. See BUHARI & ORS V OBASANJO & ORS [2003] LPELR 813 [SC] where the Supreme Court per NIKI TOBI JSC of blessed memory stated thusly:

“A statement by a Judge, either by way of a ratio decidendi or an obiter dictum is determined in the context of the facts of the case before the Court. A ratio or an obiter cannot be determined outside the facts of the case or in vacuo. And in that exercise, a Court will be able to determine whether what the Judge said is a ratio or a dictum. While a ratio of a superior Court is binding, an obiter of a superior Court is generally not binding on inferior Courts. An obiter of the Supreme Court is not binding on that court. The only binding pronouncement is the ratio.” 

The issue of notice having been struck out, it was no longer a live issue before the Supreme Court to determine and the Supreme Court could not have validly made a pronouncement on an issue not before it. Such a pronouncement on an issue not before the court by virtue of the striking out of the ground from which the issue is being distilled will not amount to a ratio but an obiter dictum and same cannot change the law on the invalidity of an irregular notice to quit. This was the position of the court of appeal In the case of OSUAGWU V EMEZI & ORS [2013] LPELR – 22030 [CA], Where It was held that:

“…any pronouncement by the Court of Appeal on the substantive issues not properly placed before it would be an obiter dictum which is not binding on the Court. See AFRO-CONTINENTAL NIG. LTD. v. JOSEPH AYANTUYI & ORS. (1995) 9 NWLR (pt.420) 411; AMERICAN INTERNATIONAL INSURANCE CO. v. CEEKAY TRADERS LTD. (1981) 5 SC. 81 at 110.

The same position was latter echoed by the Court of Appeal in AKINOLE & ORS v. FATUGBA & ANOR [2019] LPER-51109 [CA] where his Lordship TIJJANI ABUBAKAR, JCA held at Pp 25 – 26 Paras E – B on what amount to an obiter dictum as follows:

“Let me state that the law is trite as to what constitutes an obiter dictum; in BUHARI Vs. OBASANJO [2003] 17 NWLR (Pt. 850) Pg. 587; (2003) LPELR-813 (SC) Pg. 18, Paras. E – F, the Supreme Court per BELGORE, JSC (later CJN) held that: “Those who are familiar with the doctrine of obiter dicta will know their limit in jurisprudence. They are not conclusive authority; they are to be regarded as statements by the way. They arise when a Judge thinks it is desirable to express opinion on some points, though not in issue or necessary to the case before him; this makes obiter dicta not to have a binding effect or weight on the case.”

From the above cited authorities it is obvious that the pronouncement of the court on the issue of notices already struck out, amounts to a statement made obiter and simply put, an academic/hypothetical exercise/issue which is not binding as a matter of general principle.

What constitute an academic exercise or a hypothetical issue was stated by the Court of Appeal in the ANIFOWOSHE V AKEREDOLU’s case, (2021) LPELR-54540(CA) where ABUBAKAR DATTI YAHAYA, JCA held at page 24 Paragraphs C – F as follows:

“In this vein therefore, Issue No 1 is no longer a live issue. It is academic. This is because, a determination of it in favour of the Appellant, will have no value and will not enhance or improve her fortune in the appeal or serve any useful purpose. An academic issue is one that is merely theoretical, of no practical utilitarian value to the Appellant, and does not require any answer. It will not enure any right or benefit on the successful party. See CPC VS INEC (2011) LPELR – 8257 (SC); AND NDULUE VS. IBEZIM (2002) 12 NWLR (PT. 780) 139.” 

The part of the pronouncement emphasizing on the need to issue and serve statutory and proper notice to quit prior to filing of a suit for recovery of possession where her Lordship stated:

I am not saying here that statutory and proper notice to quit should not be given”,

is another pointer that the court was flexing muscle on a purely academic issue by way of obiter and did not intend to change the Law on the validity of an irregular notice to quit, contrary to established authorities that the conclusion of a judgment must be cogent clear and specific. See BARIGHA v. PDP & ORS [2012] LPER–19712 [SC] (Pp 36-36 Paras E-F) where IBRAHIM TANKO MUHAMMAD, JSC held that:

“Conclusion of a judgment must always be very cogent, clear, specific and unambiguous, capable of easy digestion and execution.”

  • EFFECT OF AN OBITER DICTUM ON LOWER COURTS

As a matter of general application, an obiter dicta is not binding and does not have any force of law as it does not relate to the live issues before the court. the general position of the law as was stated by the Supreme Court in the case of BUHARI & ORS V OBASANJO & ORS [2003] LPELR 813 [SC] is as follows:

“Those who are familiar with the doctrine of obiter dicta will know their limit in jurisprudence. They are not conclusive authority, they are to be regarded as statements by the way. They arise when a Judge thinks it is desirable to express opinion on some points, though not in issue or necessary to the case before him; this makes obiter dicta not to have binding effect or weight on the case.”  Per ALFA BELGORE, JSC [PP 18-18 PARAS D-F]

It is trite that the Supreme Court is not bound by its own obiter. However not binding, an obiter dictum of the Supreme Court is persuasive on lower courts and must not be discountenanced by lower courts with reckless abandon. In UCHIV & ANOR v. SABO & ORS [2015] LPELR – 40360 [CA] the Court of Appeal citing BUHARI V OBASANJO [supra] held as follows:

“While obiter dictum is not binding on a lower Court, yet it is highly persuasive and no law holds the view that it cannot persuade a lower Court in arriving at its decision. Therefore a lower Court reserves a right as it is free to rely on obiter dictum in reaching a conclusion. I refer to the Supreme Court case of FERODO LTD. & ANOR V. IBETO INDUSTRIES LTD. (2004) LPELR 1275 (SC) where Tobi JSC in his contributory judgment at page 64 paras E-G said: “As a general rule, an obiter dictum is not binding. See: ALHAJI YUSUF V. EGBE (1987) 2 NWLR (PT. 56) 341. However, there are occasions when obiter dictum may have a binding effect. See MRS. MACLEANS V. INLAKS LTD. (1980) 8-11 SC 1; IFEDIORAH V. UME (1988) 2 NWLR (PT. 74) 5. That is not relevant for our purposes and so I will not pursue it, what is important however is that an obiter dictum, which is what the Courts says by the way, has persuasive effect. A Court of law can allow itself to be persuaded by an obiter dictum. I know of no law which holds a contrary view. The Court of Appeal, in my view, was therefore free to rely on the statement of Romer, L.J, in Re Clement.” Instructive here too, is the decision of the apex Court in the case of: BUHARI & ORS V. OBASANJO & ORS. (2003) LPELR 813 (SC) 66 paras B-C; where the Supreme Court admonished the lower Court not to treat the obiter of the Supreme Court with impunity. Hear Edozie JSC thus: “This does not mean that an obiter has no strength or teeth indeed no lower Court may treat an obiter of the Supreme Court with careless abandon or disrespect but the Supreme Court could ignore it if it does not firm up or strengthen the real issue in controversy.” Per UCHECHUKWU ONYEMENAM, JCA (Pp 24 – 26 Paras F – B)

Where a lower court would be disposed to rely on arguments being canvassed by a party to move a lower court to be persuaded by the dictum of her Lordship Moronkeji, JSC in the PILLARS V DESBORDES case, the court would still be faced with another resisting argument which touch on the exactitude of the words used by the Learned Justice of the Supreme Court in the concurrent judgment which states unambiguously as follows: 

“Equity demands that wherever and whenever there is controversy on when or how notice of forfeiture or notice to quit is disputed by the parties, or even where there is irregularity in giving notice to quit, the filing of an action by the landlord to regain possession of the property has to be sufficient notice on the tenant that he is required to yield up possession.”

 “I am not saying here that statutory and proper notice to quit should not be given. Whatever form the periodic tenancy is whether weekly, monthly, quarterly, yearly etc., immediately a writ is filed to regain possession, the irregularity of the notice if any is cured. Time to give notice should start to run from the date the writ is served.”

This brings us to question whether any other originating process apart from a writ of summons can [assuming without conceding] cure any irregularity/ defect in a notice to quit. 

  • EXCEPTION TO THE RULE IN PILLARS V DESBORDES: WHETHER A WRIT IS THE ONLY ORIGINATING PROCESS CAPABLE OF [ASSUMING WITHOUT CONCEDING] CURING ANY IRREGULARITY IN THE NOTICE TO QUIT.

While a writ can be used to initiate actions for recovery of possession of premises at the High Court, a summons for recovery of possession of premises is the originating process provided for by the Tenancy Law of Lagos State 2011, for recovery of premises and same can as well be filed in the High Court in place of the writ of summons to institute a suit for recovery of premises.

The commencement of an action by a writ of summons is provided by Order 5 rule 1 of the High court of Lagos State High Court [civil Procedures] rules 2019 known as [FORM 1] in the schedule to the Lagos High Court rules which provides that:

(1) Subject to the provisions of these Rules or any applicable law requiring any proceeding to be commenced otherwise than by Writ, a Writ of Summons shall be the form of commencing all proceedings where:

(a) a Claimant claims:

(i) any relief or remedy for any civil wrong or;

(ii) damages for breach of duty, whether contractual, statutory or otherwise, or;

(iii) damages for personal injury to or wrongful death of any person, or in respect of damage or injury to property;

(b) the claim is based on or includes an allegation of fraud, or;

(c) an interested person claims a declaration.

While a summons for recovery of possession as provided by section 24 of the tenancy law of Lagos state 2011 [FORM TL6 A] is accompanied by an annexed claim against tenant or person refusing to deliver up possession [FORM TL6 B], the processes accompanying a writ of summons is provided by Order 5 rule 1 [2] or the High court of Lagos state 2019 which states that:

(2) All civil proceedings commenced by Writ of Summons shall be accompanied by a list and copies of the following documents:

(a) a Statement of Claim;

(b) a list of witnesses to be called at the trial;

(c) written statements on oath of the witnesses except witnesses on subpoena;

(d) copies of every document to be relied on at the trial;

(e) Pre-Action Protocol Form 01 with necessary documents.

Whereas, Section 24 of the tenancy law of lagos State provides as follow:

”Upon the expiration of the time stated in the notice as in Form TL4, if the tenant neglects or refuses to quit and deliver up possession, the landlord may file a claim by way of summons as in Form TL6A and B for recovery of possession, either against the tenant or against such person so neglecting or refusing, in the Magisterial District or High Court Division where the premises is situated”

FORM TL6 A is the summons for recovery of possession of premises while Form TL6 B is the annexed claim to accompany the summons for recovery of possession as provided by section 24 of the tenancy Law along with the claimant’s witness deposition on oath as provided by Section 27 [1] of the tenancy law of Lagos State 2011.

It is indisputable that a writ of summons and a summons for recovery of possession are two separate originating processes distinct from one another. It will therefore be absurd to attempt to argue that a writ of summons means any originating process of the High and Magistrates Courts and to attempt to define a writ to include a summon for recovery of possession as in FORM TL6 A and TL6 B.

From the clear and unambiguous words of her Lordship Moronkeji, JSC in the PILLARS V DESBORDES case, the irregularity or defect in a notice to quit can only be cured by a writ of summons and not a summons for recovery of possession which is provided by the tenancy law of Lagos State [form TL6A] usually issued to initiate proceedings at the Magistrates Courts.

The law is trite that where the content of statutes, documents or court judgments are clear and unambiguous, the operative words in them should be given their simple and ordinary grammatical meaning. See UNION BANK OF NIGERIA LTD. V. PROFESSOR OZIGI [1994] 3 NWLR [PART 333] 385.

IN AJUDUA V FRN [2019] LPELR 47959 [CA] (Pp 14 – 15 Paras B – C), the court of appeal Per GABRIEL OMONIYI KOLAWOLE, JCA held on the rule of interpretation of document or judgment as follows:

“I am clear in my understanding that the issue in the instant appeal is one involving the canon of interpretation of a document. The rule of interpretation of a document like the judgment sought to be clarified in this appeal has been well settled beyond doubt. In the circumstance, the law is trite that whilst considering the construction of a document, the primary rule is that, effect should be given to the factual contents in their plain or ordinary meanings in the same context as they appear on the documents. Where the words of a document are clear and unambiguous, they must be so construed. See THE NORTHERN ASSURANCE CO LTD V WURAOLA (1969) 1 ANLR pg 14; SOLICITOR GENERAL OF WESTERN NIGERIA V ADEBONOJO (1971) 1 ALL NLR 1978; UNION BANK OF NIGERIA V OZIGI (1994) 3 NWLR (Pt 333) p 385.

Also in GOV OF OGUN STATE v. COKER [2007] LPELR – 4217 [CA], citing the dictum of ADIO, JSC in UNION BANK OF NIGERIA LTD. V. PROFESSOR OZIGI [1994] 3 NWLR [PART 333] the Court of Appeal held Per JOHN AFOLABI FABIYI, JCA  on the Cardinal rule of interpretation of document or judgment as follows:

“It has been pronounced by Adio, JSC without equivocation in UNION BANK OF NIGERIA LTD. V. PROF. OZIGI (SUPRA) AT PAGE 403 that where a document is clear, the operative words in it should be given their simple and ordinary grammatical meaning. There is no doubt about the fact that one cannot read into a document what is not there. … See EGBA D. AKPALAKPA & ANOR V. MARK IGBIBO & ORS (SUPRA) AT PAGE 547.” 

The dictum of her Lordship Moronkeji, JSC in the PILLARS V DESBORDES case is clear and unambiguous that a writ of summons is the originating process which could [assuming without conceding] cure the defect in a notice to quit. It will therefore amount to giving another meaning to the clear and unambiguous dictum of the concurrent judgment of her Lordship Moronkeji, JSC in PILLARS V DESBORDES by seeking refuge in the said dictum to cure any irregularity or defect in the notice to quit where the originating process filed is a Summon for recovery of possession of premises as in FORM TL6 A & FORM TL6 B.

Another question worthy of consideration is whether a writ of summons is the appropriate originating process to commence a suit for recovery of possession at the High Court

  • WHETHER A WRIT OF SUMMONS IS THE PROPER ORIGINATING PROCESS TO COMMENCE A CLAIM FOR RECOVERY OF POSSESSION AT THE HIGH COURT OF LAGOS STATE.

Recovery of premises is one of those proceedings in our jurisprudence which are Sui Generis. The word “suis generis” is a latin expression meaning “in a class of its own”.

The Tenancy law of Lagos state 2011 is the relevant Law on the recovery of premises and being a specific legislation on the subject matter, it applicability supersedes any other legislation as it relates to the recovery of premises within Lagos state. the Tenancy Law of Lagos State applies to all the state to the exception of the premises mentioned at Section 1 [2] a, b, c [i], c [ii], d and the areas mentioned at section 1 [3] of the Law. Section 1 [1] of the tenancy law provides:

[1] This Law shall apply to all premises within Lagos State, including business and residential premises unless otherwise specified.

(2) This Law shall not apply to-

(a) Residential premises owned or operated by an educational institution for its staff and students;

(b) Residential premises provided for emergency shelter;

(c) Residential premises-

(i) In a care or hospice facility;

(ii) In a public or private hospital or a mental health facility: and

(d) that is made available in the course of providing rehabilitative or therapeutic treatment.

By virtue of Section 1 (3) the following areas: (i) Apapa: (ii) Ikeja GRA.; (iii) Ikoyi; and (iv) Victoria Island are exempted from the application of the tenancy Law 2011.

Although the Law is silent on what law should apply in these areas it is suggested by D. I. EFEVWERHAN that the rent control and recovery of residential premises Edict No. 6 of 1997 and the Recovery of Premises Law Cap 118, Laws of Lagos state, 1973 shall be applicable for residential premises and non-residential premises in those areas respectively in so far as these Laws were not repealed by the tenancy Law of Lagos state 2011. See EFEVWERHAN Principles of Civil Procedure in Nigeria 2nd edition at page 502. The position of the learned author sound appropriate since the Tenancy Law only repealed the Rent Tribunals (Abolition and Transfer of Functions) Law 2007. However, the Lagos State Law Commission did not include the Recovery of Premises Law of Lagos state in the 2015 compilation of the Laws of Lagos State and described same as “spent and omitted”.

The Recovery of Premises Law of Lagos state still remains valid and subsisting except expressly repealed by a subsequent Law. In  FRN V NWATALARI (2017) LPELR-43782 (CA) the court of appeal held, citing  Maxwell On the Interpretation of Statutes, 12th Edition by P. St. J. Langan pages 16 to 17 that:

“A law is not repealed by becoming obsolete: there is no doctrine of desuetude in English law”.

Further, Section 2 [1] of the Tenancy Law 2011, being the specific Law on recovery of premises provides for the Courts with jurisdiction on tenancy matter viz the recovery of possession of premises and prescribe:

“A Court shall have jurisdiction to determine matters in respect of the tenancy of any premises let before or after the commencement this Law.”

The word “court” is defines at Section 47, the interpretation section of the tenancy Law to

“mean the High Court and Magistrates’ Court of Lagos State but specifically excludes the Customary Court”

Section 4 further gives jurisdiction to the High Court of Lagos state in recovery of possession where the rental value of the premises exceeds the monetary jurisdiction of the Magistrates Courts and states as follows:

“Proceedings shall be brought under this Law at the High Court where the rental value of the premises exceeds the jurisdiction of the Magistrate Court as provided by the Magistrates’ Courts Law.”

That being said, it is pertinent to note that nothing preclude actions for recovery of premises from being commenced at the High Court even where the rental value is still within the monetary jurisdiction of the Magistrates Courts, but litigants usually approach the Magistrates Court where their claims fall within the monetary jurisdiction of the Magistrates Courts in order to take advantage of the summary jurisdiction and the faster procedure of the Magistrates Courts as time is of essence in suits for recovery of premises.

Section 5 of the tenancy Law goes further to provide for the adoption of the Civil Procedure Rules of the High and Magistrates’ Court of Lagos State and provides as follows:

“Subject to the provisions of this Law, a Court shall be bound by the practice and procedure in civil matters in the Magistrates’ Court or the High Court of Lagos State.”

By virtue of Section 5 of the Tenancy Law, the practice and procedure in recovery of possession is governed by the High and Magistrates Courts [Civil Procedure] Rules of Lagos state, however, subject to the tenancy Law.

While section 24 of the Tenancy Law provides for the form of the originating processes, section 27 provides for the trial procedure and such procedure including the form of the originating processes is the appropriate court process to be used in the commencement of an action for recovery of possession at both the High and Magistrates Courts.

Being a specific legislation on recovery of premises, the provisions of the Tenancy Law are superior and supersedes any other practice and procedure in civil matters in the Magistrates’ Court or the High Court of Lagos State as it relates to recovery of premises.

The applicable Law as it relates to the originating processes for the commencement of an action for recovery of possession of premises at the High Court is section 24 of the Tenancy Law which provides for the use of form TL6 A and Form TL6 B as well as Section 27 [1] which provides that evidence shall be by written depositions on oath of the witnesses. It is suggested that until a circumstance arise where the Tenancy Law is silent on the applicable rule, the High and Magistrates Court [Civil Procedure] Rules of Lagos state will not apply.

Statutory provisions have a superior force of Law over and above rules of Courts. The High Court Civil procedure rules which provides for commencement of an action by way of writ is a rule of general application and cannot dislodge the express provisions of the Tenancy Law 2011 being the specific legislation on the recovery of premises in Lagos state and a Law made by the Lagos State House of Assembly.

The Tenancy Law being a specific legislation on the recovery of premises in Lagos state supersedes any other legislation or rules of court on the same subject matter. See IBRU-STANKOV v. STANKOV [2016] LPELP – 40981 [CA] where it was held on the Position of the law, where there are general and specific enactment on a particular subject matter by the Court of Appeal as follows:

“Since however, the provision of the Matrimonial Causes Act/Rules is the specific Law governing Matrimonial Causes proceedings while the Sheriffs and Civil Process Act and the Rules of Court are general in nature, the Specific Law on the subject matter shall prevail. After all, the law is trite that where there are two enactments on a matter one making general provisions and the other making specific provisions, the specific provisions shall prevail. See per Fatayi-Williams CJN in THE GOVERNOR OF KADUNA STATE & ORS. V. LAWAL KAGOMA (1982) 6 S.C. 87 at 107 – 108.” Per IGNATIUS IGWE AGUBE, JCA (Pp 50 – 50 Paras A – C)”

Earlier, the same Court held as follows  in EKITI STATE INDEPENDENT ELECTORAL COMMISSION & ORS v. PDP & ANOR [2013] LPELR – 20411 [CA]:

“The validity of all laws is tested against this basic norm. In order of hierarchy and precedence, we have the provisions of the Constitution, the law made by the National Assembly and then, the law made by the House of Assembly of a State.” Per UCHECHUKWU ONYEMENAM, JCA (Pp 43-43 Paras A-C)

From the above authorities it is settled that the provisions of Tenancy law 2011 is the relevant Law in recovery of possession in so far as Lagos State is in view and a writ of summons is generally incompetent to institute an action for recovery of premises at the High Court. It is also pertinent to point that by virtue of the operative word “subject to” used in Section 2 [4] of the Tenancy law, the applicability of the Civil Procedure rules of the High and Magistrates Courts of Lagos state is “subject to” the provisions of sections 24 and 27 of the Tenancy Law 2011 which ranks in precedence over and above Order 5 rule 1 [2] of the High Court of Lagos State [Civil Procedures] 2019 which provides as follows:

“Subject to the provisions of these Rules or any applicable law requiring any proceeding to be commenced otherwise than by Writ, a Writ of Summons shall be the form of commencing all proceedings”.

Again, the applicability of Order 5 rule 1 [2] of the High Court of Lagos State [Civil Procedures] Rules 2019 is  “Subject to the provisions of any applicable law requiring any proceeding to be commenced otherwise than by Writ” of summons. The Tenancy Law is one of those “applicable law requiring any proceeding to be commenced otherwise than by Writ” of summons. In NEC V DPP & ORS (2014) LPELR-22809 (CA) the Meaning of the phrase “subject to” when used in a statute was explained Per HELEN MORONKEJI OGUNWUMIJU, JCA [as she then was] thusly:

“It must be noted that “subject to” when used in a statute means liable, subordinate, subservient, or inferior to, governed or affected by, provided that or answerable for. See FRN V. OSAHON & AMP; ORS. (2006) 2 SCNJ 348. The expression is also used to introduce a condition, a proviso or a limitation and thereby subordinate some provision to another provision. See PHILIP EBHOTA & AMP; 3 ORS. V. PIPDC LTD. (2005) 7 SCNJ 548.” (Pp 24 – 24 Paras A – C)

Also in KAYCEE (NIG) LTD v. PROMPT SHIPPING CORPORATION & ANOR (1986) LPELR-1680 (SC) the Supreme Court held on the effect of the phrase “subject to” when used in a statute to mean as follows:

“It is now well settled that the expression subject to a document or enactment is used to assign a subordinate position to a clause section or an enactment or provide for qualifications. In Massey Harris Co. v. Strasburg (1941) 4 D.L.R. 620, Macdonald, I.A. said at p. 622 “when a provision in a statute is subjected to another provision requiring something to be done, the first provision is conditional [upon] the performance of what is required by the provision referred to”. This rule applied whether the reference is to another legislation. It is not confined to clauses within the same document or enactment. Thus in this case where the Bill of Lading is made subject to the provisions of the Carriage of Goods by Sea Act 1924, it means the former is subordinate to the latter and will be postponed till the latter had been considered or is negatived where both are in conflict. The expression subject to therefore confers a right to priority in favour of the legislation or provision to which another is subject – See Re WATKINS SETTLEMENTS WILLS V. SPENCE (1911) 1 CH.1.” underlining for emphasis

  • CONSEQUENCE OF AN ACTION INITIATED UNDER A WRONG LAW

The general position of the law is that an action commenced under a wrong Law will be incompetent and will consequently rob the Court of jurisdiction. See OBASANJO & ORS v. YUSUF & ANOR [2004] LPELR-2151 [SC] where the Supreme Court held that

“It is elementary law that a plaintiff, in the commencement of an action, must comply strictly with the provisions of the enabling law. He cannot go outside the enabling law for redress.” Per NIKI TOBI, JSC (Pp 72 – 72 Paras F – G)

The above principle was reiterated by the Court of Appeal in the case of OCHEPKE & ANOR V TAEN [NIG] LTD [2013] LPELR-21958 [CA] where it was held as follows:

“The law is settled that where a Statute or Rules are put in place for compliance before the institution of an action or proceeding the method or procedure prescribed must be religiously followed by a claimant in approaching the Court for redress otherwise the action will be incompetent and will consequently rob the Court of jurisdiction. See AGIP NIGERIA LTD. VS. AGIP PETROL INTERNATIONAL & ORS (2010) 5 NWLR (Part 1187) 348 at 419B – 420A … More important is that where a statute or rule of Court provides for a procedure for the commencement of an action, failure to follow that procedure renders any suit commenced otherwise incompetent. In the case of OBASANJO VS YUSUF (2004) 9 NWLR (PT. 877) PG. 144 AT PAGE 221, the Court decided that: “It is elementary law that a plaintiff in the commencement of an action, must comply strictly with the provisions of the enabling law. He cannot go outside the enabling law for redress.” Per PETER OLABISI IGE, JCA (Pp 40-43 Paras E-C)”

Therefore, where an originating process of an action at the High or the Magistrates Courts does not comply with the statutory requirements of the tenancy Law of Lagos State 2011, the action shall not be maintainable and will be liable to be struck out.

The above submission of the writer was the position of the Court of Appeal in IBEZIAKO V IBEZIAKO (2016) LPELR-40958(CA) where it held per HELEN MORONKEJI OGUNWUMIJU, JCA (Pp 14-15 Paras F-A) as follows:

“The law is trite, that where the law provides a mode or a time for commencement of an action there must be strict compliance with such law or statutory requirement. Non compliance by a claimant who might have a cause of action, loses the right to enforce it by judicial process. See also EBOIGBE V. NNPC (1994) 5 NWLR PT. 347, PG. 649; OKE V. NWAOGBUNYA (2001) 1 SC PT.1 PG.22.”   

In practice a defaulting party could seek refuge under the principle according to which technicalities shall not be used to defeat substantial Justice. Instructively, in IWUJI v. UGORJI (2015) LPELR-24354(CA), the Court of Appeal had this to say on the effect of an action initiated under a wrong Law:

“The Law needs no restatement that a Court will not turn its back against a party in Litigation merely because he has proceeded to seek for a remedy or determination of an issue or matter under a wrong Law or Rules of the relevant Court. The Court concerned will not hesitate to grant in favour of such a Litigant the relief sought under the appropriate and relevant Law or Rules if he/she is able to establish or proof his or her right to the relief he or she is seeking. See the case of MIKE OMHENKE OBOMHENSE VS. RICHARD ERHAHON (1993) 7 NWLR (PART 303) 22 at 40 F -G per KARIBI -WHYTE, JSC who said: “I agree that the principle is now well established that where a relief or remedy claimed under a wrong Law is supported by facts establishing the remedy, the claim will not be denied merely because of the wrong Law relied upon. See FALOBI VS. FALOBI (1976) NMLR 169. This principle is founded on justice and common sense. But in order to benefit from the principle the facts relied upon must support the correct Law to be applied. This is the critical issue in the application before us.” In any event a Court is enjoined to take Notice of all Laws including Rules of Court relevant for the just determination of any matter before it. Permit me to recall the succinct words of my Noble Lord, NNAEMEKA AGU, JSC., in the case of LT. COL. MRS. R.A. F. FINNIH VS. J. O. IMADE (1992) NWLR (PART 219) 571 at 532 to 533 A -B where his Lordship said: “Every Judge in Nigeria has sworn to do justice according to Law. The Laws to be applied by a Court in all cases are not limited to only those authorities, statutory judicial, which have been cited for the Court’s consideration by counsel on both sides. Rather they include those Laws which the Court can judicially notice as well as those relevant to the issues before the Court which the Court can from its own research find out. If Judges do otherwise they will be deciding contrary to Laws which they have sworn to uphold.” I am of the settled view that the Notice of Preliminary Objection filed by the Respondent is still competent notwithstanding its having been brought pursuant to an obsolete Rules of 2007. It is the settled position of the Law also that it is the Law in existence at the time an action was or is instituted that is applicable to the matter.” Per PETER OLABISI IGE, JCA (Pp 23 – 25 Paras E – F)

The above authority of the Court of appeal was followed in NATIONAL ELECTRICITY LIABILITY MANAGEMENT LTD V OMOTUSI & ORS (2016) LPELR-41396 (CA) where it was held as follows:

“I must state at once that correctness of mode of commencement of an action, or adoption of wrong mode of commencement of an action is a mere irregularity and does not render the entire proceedings a nullity see: ADEBAYO v. JOHNSON SC 151 67.” Per TIJJANI ABUBAKAR, JCA (Pp 9 – 9 Paras B – C)

  • WHEN AN ACTION INITIATED UNDER A WRONG LAW WILL BE INCOMPETENT

An action for recovery of premises commenced at the High Court by way of writ pursuant to an invalid notice to quit, with the intent to rely on the dictum of the court in the PILLARS V DESBORDES’s Judgment of the Supreme Court to give life to a suit which validity is being challenged for irregularity in the  notice to quit will be merely calculated to mislead.

Section 22 of the Interpretation Law of Lagos State provides that a form shall be invalid when it will deviates from what is prescribed in an enactment if it is calculated to mislead. By virtue of the provisions of section 22 of the Interpretation Law of Lagos State:

Where a form is prescribed by an enactment, a form which differs from the prescribed form shall not be invalid for the purposes of the enactment by reason only of the difference if the difference is not in a material particular and is not calculated to mislead. “

The Court of Appeal in ADEJUMO V DAVID HUGUES [1989] LPELR – 20454 [CA] had the opportunity to interpret section 23 of the Interpretation Act 1964 which is in pari materia with Section 22 of the Interpretation Law of Lagos State where it held per EPHRAIM OMOROSE IBUKUN AKPATA, JCA with respect to the effect of an action commenced under a wrong procedure, on the issue as to whether the form of commencement of an action is enough to vitiate same as follows:

“The learned trial Judge said that he was not unaware of the provision of Section 23 of the Interpretation Act, 1964, which states: “Where a form is prescribed by an enactment, a form which differs from the prescribed form shall not be invalid for the purposes of the enactment by reason only of the difference if the difference is not in a material particular and is not calculated to mislead.” While learned trial Judge held the view that “the form used in Form 1 is quite different in more than one material particular that it cannot be saved by this section”, he however omitted to state how the use of Form 1 was “calculated to mislead”. The learned trial Judge then went on to state that when a statute has laid down any procedure, rule or practice as in Section 10 of the Recovery of Premises Law, the Court has no jurisdiction unless they are followed. He drew support from Moore v. Tayee (1934) 2 W.A.C.A. 43 at page 45 where Lord Atkin said: “It is quite true that their Lordships, as every other Court, attempt to do substantial justice and to avoid technicalities; but their Lordships, like any other Court, are bound by the statute law, and if the statute law says there shall be no jurisdiction in a certain event, and that event has occurred, then it is impossible for their Lordships or for any other Court to have jurisdiction.” In my view the dictum of Lord Atkin is not applicable to this case. The question in Moore v Tayee was whether or not the Provincial Commissioner had jurisdiction to entertain at all appeal from the Native Tribunal. It is elementary that parties cannot by consent or otherwise, vest in a Court the jurisdiction it does not have. This is quite different from an enactment prescribing a form for commencing an action and another form is erroneously applied. The authorities cited by Mr Davies, learned counsel for the respondent, which relate to question of jurisdiction are inapplicable to this case. Section 23 of the Interpretation Act, 1964, which is a statutory provision clearly states that the form used “shall not be invalid for purposes of the enactment by reason of the difference”. It is trite that where a wrong procedure has been used in commencing an action and was not objected to by the opposite party, the proceedings based on it will be valid. As stated by the Supreme Court in the case of Adebayo v. Johnson (1969) 1 All N.L.R. 176 at page 190, cited by learned counsel for the appellant, where a party failed to challenge the correctness of the procedure at the commencement of the proceedings, “the adoption of a wrong procedure will be no more than an irregularity and would not render the entire proceedings a nullity”. In certain cases even statutory provisions can be waived. This was made clear by Eso, J.S.C., in the case of Ariori & Ors v Elemo & Ors. (1983) 1 S.C. 13 at pages 50 – 51, where he said: “A beneficiary under a statute should have full competence to waive those rights once the rights are solely for his benefit. The only exception I can think of is where the statute itself forbids waiver of the statutory provisions.” Section 31(1) of the Recovery of Premises Law states that: “Subject to the express provisions, if in any of the rules, the forms contained in the schedule may, in accordance with any instructions contained in the said forms, and that such variations as the circumstances of the particular case may require, be used in the cases to which they apply, and, when so used, shall be good and sufficient in law.” (Italics mine) This Section does not specifically or by implication exclude the use of other forms. All it does is to validate the use of the forms in the schedule, including form F. Therefore, from whatever angle one approaches the issue, which the learned trial Judge introduced suo motu, one gets to the conclusion that he was wrong to have come to his decision that the use of Form 1 by the appellant in commencing the action rendered the action useless.

From the clear and unambiguous reading of the above authorities, it is settled that where the form used in the commencement of an action is different from what is prescribed by statutes, it shall be invalid if it is calculated to mislead.

Also a party who commence an action at the High court by way of writ of summons may be confronted with a fierce contestation of the use of the procedure by way of preliminary objection which might gives the party the opportunity [quoting the court] to pursue spurious [interlocutory] appeals through all hierarchy of courts to frustrate” the recovery of possession of premises by the landlord.

From the above cited authorities, all indicators points to the principle that “where a Statute or Rules are put in place for compliance before the institution of an action or proceeding the method or procedure prescribed must be religiously followed by a claimant in approaching the Court for redress otherwise the action will be incompetent and will consequently rob the Court of jurisdiction”

  • CONCLUSION

The judgment delivered On Friday, 5th February 2021, by the Supreme Court in PILLARS (NIG.) LTD. V. DESBORDES & ANOR (2021) 12 NWLR (PT.1789) is not a carte blanche for counsel to outrightly disregard the express provisions of a statute by issuing defective notices or by shortening the length of notices contrary to the requirement of statute with a view to seek refuge under the dictum of the court according to which the filing of a writ of summons is a vaccine capable of curing any maladies which affects the compulsory statutory notices.

The decision of the Court was based on the peculiar circumstances of that case and more especially the length of time that the matter has spent from the High Court of Lagos State up to the Supreme Court and it would have been unjust for the Court to decide otherwise and rely on technicalities to defeat substantial justice. The writer is of the view that the Judgment of the Supreme Court in dismissing the Appeal is correct and align with the primary objective of the Courts which is nothing but Justice based on substance rather than technicalities.

The dictum of her lordship OGUNWUMIJU JSC , with all due respect to the erudite Justice of the Apex Court, is not a guaranteed prevention against the irregularity in a defective notice to quit for he who comes to equity must come with clean hands and “clean hands” presuppose an observance of statutory provisions and refraining from their breach thereof.

A statement made obiter is an academic exercise and cannot change the express provisos of statutes.

FEMI DODO is a legal practitioner, human & animal rights activist and a partner in the Law firm of Dodo Tafari Law Partnership. He is the Vice Chair of the Young Lawyers Forum (YLF) of NBA Ikeja Branch. He can be reached at dtlp.law@gmail.com.

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OIL FIRM DEBUNKS HEIST, SAYS UNION BANK OWES 2.56 BN POUNDS

Petro Union Oil and Gas Company Ltd (Petro Union) has debunked an allegation that the Barclays Bank cheque in favour of the oil company is “attempted bank heist,” saying the allegation is “myopic and uninformed.”

In a rejoinder made available to CITY LAWYER titled “REJOINDER: THE LARGEST BANK ROBBERY IN HISTORY – ABOUT TO HAPPEN IN NIGERIA (THE ALVIN REPORT),” the company stated that it “denies the assertions in the said publication as being incorrect and misconceived.”

According to Petro Union, “Such sponsored publications are not completely surprising as some persons having lost at the trial in 2014, at the Court of Appeal in 2018 and unsuccessfully attempted to appeal to the Supreme Court in 2019 and maybe seeing the futility of their further attempt at the Supreme Court, may have become constrained to resort to media trial.”

Below is the full text of the statement.

26th July ,2021

REJOINDER:     THE LARGEST BANK ROBBERY IN HISTORY – ABOUT TO HAPPEN IN NIGERIA (THE ALVIN REPORT)

INTRODUCTION

The attention of our Company – Petro Union Oil and Gas Company Ltd (Petro Union) – has been drawn to a publication captioned “THE LARGEST BANK ROBBERY IN HISTORY – ABOUT TO HAPPEN IN NIGERIA” credited to one Tope Fasua published on 13th July, 2021 in an obscure online platform – The Alvin Report. The Company hereby denies the assertions in the said publication as being incorrect and misconceived.

Our initial reaction was to ignore the said publication as one of those possibly sponsored media and psychological tactics but on a further thought, we deemed it important to react and set the records straight for the umpteenth time at least for the benefit of unsuspecting members of the public who were deliberately targeted to be misled by the said publication. Such sponsored publications are not completely surprising as some persons having lost at the trial in 2014, at the Court of Appeal in 2018 and unsuccessfully attempted to appeal to the Supreme Court in 2019 and maybe seeing the futility of their further attempt at the Supreme Court, may have become constrained to resort to media trial.

BACKGROUND

The Federal High Court delivered Judgment in favour of our Company in suit no. FHC/ABJ/M/104/2012 since 11th March, 2014 which Judgment was affirmed by the Court of Appeal on 5th June, 2018 in appeal no. CA/A/258/2014. This Judgment was arrived at based on cogent, compelling and credible evidence adduced by Petro Union. Union Bank was represented at the Court of Appeal by a team of senior lawyers led by Tayo Oyetibo, SAN while CBN was represented by a team led by D. D. Dodo, SAN.

The concurrent subsisting findings of both courts is that Central Bank of Nigeria (CBN) and Union Bank PLC are in custody of our Company’s foreign capital in the sum of 2, 556, 000,000 GBP (Two Billion, Five Hundred and Fifty-Six Million Pounds Sterling). As at the time of the Judgment in 2014, the Naira was much stronger and had more value than it does presently and the Judgment sum would not have translated to billions of Naira now that our currency is weak only if the Judgment Debtors promptly complied with the Judgment and honoured their obligation without allowing post-judgment interest to accrue.  

The initial attempt by Union Bank to challenge the Judgment of the Court of Appeal at the Supreme Court was unsuccessful as the apex Court in its decision of 16th December, 2019 dismissed Union Bank’s application and held that their appeal was incompetent. At this stage, Union Bank’s legal team was led by Prof. Koyinsola Ajayi, SAN. Still unwavering, Union Bank subsequently filed yet another application for leave to appeal, through its legal team led this time by Adegboyega Awomolo, SAN, which application is currently pending before the Supreme Court. Possibly realizing the futility of a further attempt at challenging the decisions at the Supreme Court, it appears that some persons have resorted to media trial over the matter by sponsoring fallacious and malicious publications, like the Alvin Report publication of 13th July 2021, to whip up public sentiments.

ISSUES RAISED IN THE SPONSORED PUBLICATION ARE AFTER-THOUGHTS, FALSE, NON-EXISTENT, IMPROBABLE AND/OR IRRELEVANT AND WERE NEVER RAISED AT THE TRIAL

Worthy of note is that all the non-existent and/or irrelevant issues/posers raised in the Alvin Report publication were never raised as a defense or even put forward as mere points to dissuade the court at the trial by CBN or Union Bank who both actively participated in the proceedings which culminated into the Federal High Court subsisting Judgment of 11th March, 2014 in favour of Petro Union. This is simply because they are mere afterthoughts. As it is common knowledge, CBN is a statutory body established by an Act of Parliament and it is vested with a number of functions, objectives and mandates which include the supervision of commercial banks, like Union Bank, and other banking operations.

Undoubtedly, the CBN with all its statutory powers would have had no difficulty in tracing and obtaining evidence on all the false and misconceived issues raised in the said Alvin Report publication. Because these issues are non-starters and fabricated, they were not raised at the trial which had CBN and Union Bank as Parties.  As stated earlier, both banks were represented by Counsel of their choice, at the trial, who never raised any of these issues which they now claim happened and/or existed as far back as in the 80’s and 90’s. This makes their later day after-thoughts more improbable and incredible.

Put differently, at the trial in suit no. FHC/ABJ/M/104/2012 which commenced in 2012, neither CBN nor Union Bank (who were both Respondents and represented by Counsel), who reasonably ought to have known with due diligence if true, contended and/or raised any of the misconceived issues raised in the Alvin Report publication credited to one attention-seeking Tope Fasua.

MISCONCEIVED COMPARISM AND/OR CATEGORIZATION OF THE JUDGMENTS IN FAVOUR OF PETRO UNION AS BANK HEIST/SCAM

We have also noted with dismay the author’s unfortunate and baseless comparism of the subsisting Judgment (arising from the Company’s foreign capital) in favour of Petro Union with unrelated bank robberies/thefts that have no connection whatsoever. The author, without basis, probably basking in the euphoria of the benefits from his enablers, alludes that the Barclays bank cheque in favour of Petro Union was an attempted bank heist. What a myopic and uninformed position to take? Although the publication is full of the author’s mere opinion, it is clear that the opinions expressed therein are baseless and actuated by ulterior motives although it may have been intended to be ‘ingenious’ as at the time of putting up the misguided publication. No court anywhere in the world has found and/or convicted Petro Union for fraud or misconduct of any kind.

CLEAR SHOW OF DESPERATION

In further demonstration of the desperation and ulterior motives exhibited in the publication, it was falsely alleged that Petro Union in their last statement are now saying that if Union Bank and CBN could ‘apologize’ for what happened they will be okay and probably walk away. This must be a fiction of the author’s imagination.

It is obvious that the author needs to be tutored on certain basics. For instance, in the sponsored publication, he states thus – I have always had issues with some decisions that judges take… Mr. Tope needs to be reminded that we live in a country governed by rules and regulations and as a supposed accountant who has lived in London, he ought to know that the unqualified obligation of all is to obey decisions of Court and any dissatisfaction against that decision has to be by way of an appeal in line with the law. The unfortunate publication goes as far as accusing Judges of being infamous with the ability to send the innocent to the gallows and free dangerous menaces to the society, for the love of money. This attitude and sheer desperation exhibited in the publication is really worrisome, condemnable and ought to be investigated. It does not lie in the mouth of the author to castigate the Judges and/or the subsisting Judgment of the Federal High Court in favour of Petro Union which was affirmed by the Court of Appeal and undisturbed by the Supreme Court.

CONCLUSION

We hereby urge the general public to disregard and discountenance the said publication and other similar publications as being fallacious, malicious and self-serving. They say the judiciary is the last hope of the common man and we are indeed hopeful that justice will prevail at last in this matter and the Company will have access to its wrongfully seized foreign capital for its legitimate business.

DATED THIS 26TH DAY OF JULY, 2021

Prince Kingsley Okpala
(Managing Director)
FOR: Petro-Union Oil and Gas Oil Ltd

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JUDICIARY: A STATE OF EMERGENCY

In this article, leading human rights activist, Mr. Ebun-Olu Adegboruwa SAN spotlights the crises rocking the nation’s judiciary and calls for urgent reforms.

When the President announced the first Coronavirus lockdown at the end of March, 2020, hardly did we ever think that it would continue in this form, with the economy in shambles, all critical sectors crawling and almost everything at a standstill. Following that painful but necessary lockdown, the judiciary began to wobble, while many cases suffered long delays and others were adjourned sine die. Then came the EndSARS protests, the looting of the courts, the burning down of the oldest court building in Nigeria, together with its archives and antiquities. It is doubtful if the court system will ever recover from that invasion, notwithstanding the gallant efforts of the leadership of the judiciary and indeed the Lagos State Government. We are gradually feeling the heat of these catastrophic occurrences, as no substantial progress has been made ever since. Some judges have no courtrooms to sit in to conduct judicial business, some others share a single courtroom with other judges while some others have no chambers or office to operate from, due to no fault of theirs. It is that serious indeed.

The Judiciary is established under section 6 of the Constitution of the Federal Republic of Nigeria, 1999, as amended. The Constitution proceeds to state the function of the judiciary as to “extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any questions as to the civil rights and obligations of that person.” In reality therefore, the judicial powers as conferred upon the courts relate to adjudication and determination of disputes. This power is traceable to the period of creation, when the first man (Adam) was put to trial in the Garden of Eden. God drafted the charges, served them on him and took his defences thereto and thereafter judgment was passed. However, judicial power was properly codified when the father-in-law of Moses visited him and advised him to set up several courts for the resolution of all contentious issues, depending on their magnitude. Man has followed this pattern ever since, leading to the trial, condemnation and crucifixion of Jesus by the Jews.

The judiciary became more entrenched as part of the foundation of the creation of Nigeria, due to the Sir Henry Willink Commission of Inquiry report, detailing the means of addressing the fears expressed by the minority ethnic groups, post-independence. Assuredly, there will always be one dispute or the other, in any human endeavor or existence. With their over-bloated population and size, the majority ethnic groups could always boast of electoral victory to form the cabinet and also majority in the parliament, any day, through which they would continue to dominate the minority groups. It was then resolved to establish a strong judicial system, capable of intervening in any dispute between persons and persons, persons and governments or indeed any other authority. This partly accounts for the reason why the judiciary was established as an independent and autonomous arm of government, to be strong enough to look anyone in the eye, to be strong enough to damn oppressive policies and strike down all manners of injustice. This worked well for some time, until the military emerged with absolute powers and decrees, through which the powers of the courts were circumscribed and at times suspended, outrightly. But even under the military, the judiciary remained the only arm of government that could not be dissolved totally, unlike the parliament and the executive. No government has been so brutish and damning, as to outrightly sack the courts; we have never had it so bad and we pray not to ever have such malady, in our time.

What then is the problem with the judiciary? It insists on the rule of law, the rule of prescription, the rule of certainty, the rule of fairness and the rule of equity and equality. The judiciary abhors all forms of impunity, by which arbitrariness and unequal application of rules and regulations become the norm of human behavior. In this regard therefore, everyone in the judiciary is a potential threat to and target of the executive arm of government, represented by the President or Governor, Ministers or Commissioners, police officers, law enforcement agencies, public officers, civil servants, heads of government parastatals and other agencies. They mostly would love to bend the rules, when their vested interests are at stake, which invariably sets them in confrontation with the judiciary.

Membership of the Bench is however a special calling, not meant for the ordinary human being, given to the usual emotions and fancies. The judge is expected to be a special breed, above board, sober, conservative, moderate in all things and without any flair for extravagance or such worldly cravings. He is to keep away from society, some of whom may end up in his court one day. In return for these manifold deprivations, society accords him dignity, honour and reverence and call him “My Lord”, being the next person to God in terms of power and authority. In addition, the State undertakes to pick up his bills and guarantee him a secured tenure of office and a worthy life of retirement, after the Bench. But has this been the case? In times past, yes, but not so any longer. The State has failed in its duty of care for the welfare of the judge, some of whom have not experienced any wage increase for over ten years. The judge is overburdened with cases, has no judicial assistant as compared with his counterparts in the cabinet as Minister, or in the Senate, all who have countless aides and personal assistants. So, we failed the judges, no doubt.

But more worrisome is the fact that the judges themselves failed society, by departing from their established codes and ethics, by mingling and tangling with the society, by craving the very things that they were supposed to condemn and punish in their judgments. Some judges became very affluent, some parading estates upon estates, even abroad! Some of the judges were pushed to the lion by the neglect of the State, becoming willing tools in the hands of crooked lawyers and their corrupt clients. Or else, how can it be said that motions and processes are cooked and drafted in the homes of judges, that judges have special preference for certain lawyers that they work with and some even enjoy the patronage of litigants. It then got so bad that oftentimes when clients go to brief the lawyer, they want to know how to get access to judges, and when you don’t oblige them, they find their way there!

The judiciary is in dire need of reforms, the legal profession is crying for attention, such that the Bar and the Bench should this very moment declare a state of emergency. Why has the State abandoned the courts? Why can’t we have as many judges as we have Senators and Legislators? Why should the courts be so few and congested, to the extent that in the Supreme Court presently, civil appeals filed in 2008 are the ones being treated? Why should we have only fifteen justices for the entire Supreme Court of a nation of over 200 million people? Why should a State like Lagos, with over 24 million people, be served by less than 50 judges? Why should judges be so poorly treated, such that when a Justice of the Supreme Court was retiring, she lamented that she had no personal house of her own to stay? How on earth can we expect balanced judgment from the one who has not been catered for? When they go to the same market to buy food and their children attend the same schools? Should it be an offence to go to the Bench to serve one’s country?

There is fire on the rooftop! Why should any judge, worth his name and dignity, be involved in arranging the movement and assignment of cases to his court? Why should any judge ever agree to meet with any litigant that has a case in his court? Why should anyone who has the fear of God, be twisting the facts of any case, just to reach a pre-arranged conclusion? Why should judgment be for sale? Why did I go to study law, why am I busy studying and preparing for any case, burning the midnight oil, if the outcome of all my labour is up for sale, to the highest bidder? Why should any client bother himself to hire me as his lawyer, if he could get access to the judge and buy the judgment off the court? Truth is, no bribe given ever remains a secret. How can a judge still be sitting in the open court, pretending to be listening to the lawyers and their witnesses, when he has already been paid by one of them to do his bidding? Is there no dignity in labour? The one in heaven who created the eyes, can He not see? The one who created the ears, can He not hear? Is there no divine judgment after death again?

It is clear without any iota of doubt that the system needs urgent cleansing, but it must start with the one in authority, which is the government. You cannot plant maize and expect to harvest beans. Let us first look into the welfare and conditions of service of all judicial officers. Should it be possible for a judicial officer to be kidnapped or attacked by persons whose cases he is presiding over? Should judges be under any form of trepidation, any sense of intimidation or harassment by the same government that appointed them into office? Should a judge first think of the likely reaction of the President or the Governor, before he writes his judgment? Should judges be worried about post-retirement benefits, of the likelihood of being mocked by the same society that they served diligently or being humiliated by the same persons from whom they have had cause to reject tempting offers to compromise their judgments? Should judicial officers have cause to worry about the future of their children? We need a very urgent and robust welfare package for all judicial officers. And having done these, should we tolerate or pamper corrupt judges? Should they not be well monitored and audited constantly to weed off the bad ones? What is the gain for society, for investing so much in judges? How can we assure ourselves of the neutrality of judges in all cases before them? Should we not expect judges to do justice according to law, without fear, favour, affection or ill will, and to decide cases according to their conscience in the fear of God? And for us to deal ruthlessly with them whenever they fall short? Questions and many more questions, abound.

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EXCLUSIVE: CJN RETURNS FROM DUBAI, RESUMES DUTY

BY EMEKA NWADIOKE

The Chief Justice of Nigeria, Justice Tanko Muhammad has returned to Nigeria after a brief trip to Dubai, United Arab Emirates.

An unimpeachable source told CITY LAWYER that Justice Muhammad flew back to the country yesterday.

“There are strong indications that the CJN is currently at his duty post in the office as we speak,” the source told CITY LAWYER.

A member of the Supreme Court, Justice Ibrahim Saulawa had reportedly told the audience at the unveiling of the national headquarters of the Muslim Lawyers’ Association of Nigeria (MULAN) in Abuja that Justice Muhammad had tested positive for coronavirus and had been flown to Dubai, the United Arab Emirates for treatment.

Justice Muhammad was absent at the new legal year ceremony of the Supreme Court where he was scheduled to preside over the inauguration of 72 new Senior Advocates of Nigeria, leading to anxiety over his health status. The event was presided over by the next most senior Justice of the Supreme Court, Justice Olabode Rhodes-Vivour.

Justice Saulawa’s comment was supposed to have doused the anxiety but the Supreme Court’s Director of Information, Dr. Festus Akande described the COVID-19 report as a rumour, adding: “In furtherance to the press statement earlier issued, I wish to state categorically clear that there is no medical report so far made available by anybody indicating that the Hon. CJN has tested positive for Coronavirus.

“Those peddling the rumour should go a step further to confirm from their sources and equally obtain the copy of whatever laboratory test result they are relying on.

“As of this moment of issuing this statement, no one has so far shown me or any other person in Supreme Court a copy of the test result they are referring to in the report.”

Copyright 2020 CITY LAWYER. Please send emails to citylawyermag@gmail.com. Join us on Facebook at https://web.facebook.com/City-Lawyer-Magazine-434937936684320 and on TWITTER at https://twitter.com/CityLawyerMag. All materials available on this Website are protected by copyright, trade mark and other proprietary and intellectual property laws. You may not use any of our intellectual property rights without our express written consent or attribution to www.citylawyermag.com. However, you are permitted to print or save to your individual PC, tablet or storage extracts from this Website for your own personal non-commercial use.

VIRTUAL HEARING SUITS: FEDERAL JUDGE, SANs PREDICT OUTCOME AT SUPREME COURT

SUPREME COURT’LL DECLARE SUITS AS ACADEMIC, HYPOTHETICAL – OSIPITAN

By Emeka Nwadioke

A federal judge and some leading jurists today disagreed on the merit of the lawsuits filed at the Supreme Court by Lagos and Ekiti States challenging the constitutionality of virtual hearing by Nigerian courts.

CITY LAWYER had in an exclusive report revealed plans by South West Attorneys-General (SWAG) to seek a constitutional interpretation of virtual court hearings as set out in the National Judicial Council (NJC) Guidelines and sundry Practice Directions issued by heads of courts.

Speaking at an Attorneys-General Colloquium on “Remote hearing and e-filing in Nigeria: A broader perspective and practical, foolproof implementation,” Ekiti State Attorney-General & Commissioner for Justice, Mr. Olawale Fapohunda had said that the Attorneys-General of Lagos, Ondo and Oyo States would head to the Supreme Court to test the constitutionality of remote hearings. Both Lagos and Ekiti States have now filed matters at the Supreme Court asking the apex court to determine the constitutionality of virtual hearings among other reliefs.

No sooner had the CITY LAWYER report hit the newsstands than some senior lawyers lampoon the move by the attorneys-general.

Also speaking today at the Nigerian Bar Association, Lagos Branch webinar on “An engagement with the National Industrial Court of Nigeria on the Practice Directions and Guidelines for Court Sitting 2020,” Justice Benedict Bakwaph Kanyip, President of the court, expressed serious doubts over the merit of the SWAG cases. However, the two panelists that featured on the webinar had differing views on the matter.

While foremost law teacher and expert in evidence law, Prof. Taiwo Osipitan SAN aligned with Justice Kanyip, arguing that no dispute has arisen between the States and the Federation as to justify the attention of the Supreme Court, leading commercial lawyer, Prof. Konyin Ajayi SAN disagreed, arguing that the SWAG suits have merit.

Said Justice Kanyip: “I have not seen the (court) papers. But what was reported in the press was that they had gone to the Supreme Court to ask the Supreme Court to state whether what they are doing is not legal. It is one thing to say, ‘This thing that is being done has injured me.’ It is another thing to say, ‘I have acted; confirm to me that what I did is legal.’ This second example, from what I have gathered, is what has been sent upstairs. I don’t know how – even if it is Federal High Court, as Prof. (Osipitan) said that interpretation of the Constitution is that of the Federal High Court – even if it is Federal High Court, can you go to Federal High Court and say, ‘This thing I have done, validate it for me, tell me its valid.’ I really don’t know. It is something I have been thinking and thinking.”

He added: “I think Section 36 deals with fair hearing, fair trial. We have to also look at whether the virtual sitting, virtual hearing, remote hearing key into that. I really don’t see any reason why we cannot come to the conclusion that fair hearing and fair trial is not hindered by virtual hearing.”

On his part, Osipitan queried the merit of the SWAG suits, saying: “Looking at the issue of disputes, the Supreme Court of Nigeria is the apex court. It has just one original jurisdiction – to determine disputes between the Federation and the States or inter-State disputes, insofar as those disputes depend on existence of rights.

“In other words, not just disputes but disputes that will call into question the rights and duties of the parties. And I keep on asking myself, going to the Supreme Court to seek interpretation of the Constitution against who? Against the Federal Government. What has the Federal Government or the Executive done to warrant being dragged to the Supreme Court?”

Passing his judgement on the SWAG suits, the respected senior advocate declared: “I see that case as very academic and very hypothetical. Granted that the National Assembly wants to amend the Constitution; that itself creates a dispute between a litigant and the National Assembly with respect to the interpretation of the Constitution. If that is the case, that creates a lis, a dispute. But the place to go to is the Federal High Court for issues that have to do with the interpretation and application of the Constitution. The Federal High Court has jurisdiction over such issues.”

On the point made by Justice Kanyip that the SWAG suits turn on a prayer for the Supreme Court to validate earlier acts of Lagos State, Osipitan said: “Supreme Court decides – and indeed all courts decide – live issues, not to give advisory opinion. If what they require is advisory opinion, the journey must start at the Federal High Court – and they now do case stated to the Court of Appeal and to the Supreme Court. But let us see how the Supreme Court will decide the matter.”

Turning to the plan by the National Assembly to amend the Constitution to accommodate virtual hearing, the University of Lagos law teacher said: “I also do not see how the National Assembly could amend the Constitution to insert the aspect of virtual hearing. The Constitution is a very serious document, very very serious. For them to amend it, they will also need the support of the States; in other words, after finishing at the National Assembly, they still must have the support of the State Assemblies. So they have problems with the States that are not going to agree with them. But I do not think that what is happening justifies the amendment of the Constitution; certainly No! We can interpret the Constitution in a purposive and liberal manner, to the extent that wherever you have the word ‘hearing in public,’ it does not mean that members of the public will all be physically there; all they are saying is opportunity to view the proceedings, to follow the proceedings. It is a matter of interpretation; we don’t require any amendment to the Constitution.

“In terms of the dispute they have placed before the Supreme Court, I am afraid they have gone to the wrong court and I can predict that the outcome is likely to be that it is academic, it’s hypothetical and it is outside the original jurisdiction of the Supreme Court.”

But Ajayi disagreed, saying: “The Constitution must be read in a manner that ensures that there is justice. The Supreme Court has said in a number of cases – including Global Excellence v Duke – that the language of the Constitution, although it doesn’t change, the changing circumstances of the society for which it is designed must yield to new and fuller need. In other words, you change your statutes, you don’t change your Constitution. The point has been made as to what is ‘public’ and what is the purpose of that. You cannot amend the Constitution whenever anything changes
“The question is, is this suit by Lagos State academic? Is it a dispute? Two things arise: One is, can the Supreme Court take an academic matter? It has said over and over again that it does not take academic matters. But then, the jurisprudence of this point is that there is a difference between a hypothetical matter and an academic issue.

“A hypothetical question is taken by a court when it is of public importance. And there are a number of English House of Lords, Supreme Court decisions on that point, that say, they will take a hypothetical question that is of public importance. Let us take this matter for instance; is it a matter of public interest? Yes, it is because it is notionally possible that we would be unable to go to court for two years. So, should there be a determination on the point? I think there should be, because we would have a definite Yes or No on whether all these rules are bad or these rules are good. At the moment, if I go to court A, they may say ‘No;’ I go to court B, they say ‘Yes.’ Or I go to Court of Appeal A, they say ‘Yes,’ but Court of Appeal B says ‘No.’

“The Constitution says the Supreme Court can take a dispute. People have said there is no dispute. So, the jurisprudential question is, ‘What is a dispute?’ Is a dispute a war or is a dispute a difference? And I think there is a difference. Now as to what is allowable, there are judges and there are lawyers and legislatures that have said Section 36 of the Constitution requires a physical building in terms of public. There are people that have said, ‘No, public is the ability of more than the litigant to attend the hearing.’ So, there is that point as to what is the meaning of public.

“The other thing is, in determining what a dispute is, we have to go beyond the narrow confines of ordinary matters that are not of public interest, that are not disputes between economic units of the State. When it comes to the administration of justice, dispute is totally different; it is about the administration of justice, it is also about the ability of the Governor of Lagos to ensure that his executive policies in running the state come to fruition. The Governor of Lagos State is entitled to ensure that the law in Lagos State is one that assures local and domestic investors that in this state there is justice; that in this state, the courts work functionally. He has an interest. These are the public interest issues.”

Fapohunda had while unveiling plans by the South West Attorneys-General to litigate the controversy, said: “Since the National Judicial Council issued its Guidelines for court sittings in this COVID-19 period, we have had a national conversation particularly among justice sector stakeholders on the constitutionality or otherwise of remote court hearings.”

Continuing, the Ekiti State Attorneys-General & Commissioner for Justice said: “Let me however quickly use this opportunity to inform participants that following a resolution of the South West Attorneys-General, the Attorneys-General of Lagos, Ondo and Oyo States have decided to approach the Supreme Court to seek a constitutional interpretation of Section 36(3) & (4) of the 1999 Constitution, particularly as it relates to remote court hearings. We will be filing the necessary papers in the Supreme Court tomorrow.” He added: “We are convinced that a definite pronouncement by the Supreme Court is necessary in order to put the matter at rest once and for all.”

Since the issuance of the NJC Guidelines and several Practice Directions on virtual court hearings, some jurists have argued that virtual hearings violate the 1999 Constitution on the requirement that court hearings must be held in public.

Section 36(3) and (4) of the 1999 Constitution provides as follows:
“(3) The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in subsection (1) of this section (including the announcement of the decisions of the court or tribunal) shall be held in public.
(4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal:
Provided that –
(a) a court or such a tribunal may exclude from its proceedings persons other than the parties thereto or their legal practitioners in the interest of defence, public safety, public order, public morality, the welfare of persons who have not attained the age of eighteen years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interests of justice;
(b) if in any proceedings before a court or such a tribunal, a Minister of the Government of the Federation or a commissioner of the government of a State satisfies the court or tribunal that it would not be in the public interest for any matter to be publicly disclosed, the court or tribunal shall make arrangements for evidence relating to that matter to be heard in private and shall take such other action as may be necessary or expedient to prevent the disclosure of the matter.”

Hosted by Mr. Folabi Kuti, a Partner in Perchstone & Graeys, the NBA Lagos Branch webinar also featured former President of Civil Liberties Organisation (CLO), Ms. Ayo Obe and Branch Chairman, Mr. Yemi Akangbe.

Please send emails to citylawyermag@gmail.com. Copyright 2018 CITY LAWYER. All materials available on this Website are protected by copyright, trade mark and other proprietary and intellectual property laws. You may not use any of our intellectual property rights without our express written consent or attribution to www.citylawyermag.com. However, you are permitted to print or save to your individual PC, tablet or storage extracts from this Website for your own personal non-commercial use.

VIRTUAL COURTS SUIT: ‘WHY S/W ATTORNEYS-GENERAL MUST RETRACE STEPS,’ BY UDEMEZUE

The controversy over plans by Attorneys-General of Nigeria’s South West Zone to seek a constitutional interpretation of virtual court hearings has refused to abate.

CITY LAWYER had in an exclusive report noted that there was a move by the six South West attorneys-general to approach the Supreme Court for an interpretation of section 36(3) and (4) of the 1999 Constitution as it relates to virtual court hearings. The Attorneys-General have also come under fire from several jurists including a federal judge for the move.

In this article, Nigerian Law School teacher, Mr. Sylvester Udemezue advises the State chief law officers on how to rework their strategy to have a fighting chance of success with the initiative.

THE BACKGROUND
I recently read of plans by Attorneys-General (AG`s) of Nigeria’s South West Zone to approach the Supreme Court for a judicial interpretation of section 36(3) and (4) of the Constitution of the Federal Republic of Nigeria, 1999, as it relates to virtual court hearing. The report which came under the headline, “Virtual Hearing: South West AG`s Storm Supreme Court Tomorrow” and published by the City Lawyer stated, in part, as follows:

‘Attorneys-General of Nigeria’s South West Zone have resolved to seek a constitutional interpretation of virtual court hearings as set out in the National Judicial Council (NJC) Guidelines and Sundry Practice Directions issued by heads of courts, CITY LAWYER can exclusively report. Speaking today at an Attorneys-General Colloquium on “Remote hearing and e-filing in Nigeria: A broader perspective and practical, foolproof implementation,” Ekiti State Attorney-General & Commissioner for Justice, Mr. Olawale Fapohunda said the Attorneys-General of Lagos, Ondo and Oyo States would head to the Supreme Court tomorrow to test the constitutionality of remote hearings. His words: “Since the National Judicial Council issued its Guidelines for court sittings in this COVID-19 period, we have had a national conversation particularly among justice sector stakeholders on the constitutionality or otherwise of remote court hearings.” Continuing, the leading justice reform advocate said: “Let me however quickly use this opportunity to inform participants that following a resolution of the South West Attorneys-General, the Attorneys-General of Lagos, Ondo and Oyo States have decided to approach the Supreme Court to seek a constitutional interpretation of Section 36(3) & (4) of the 1999 Constitution, particularly as it relates to remote court hearings. We will be filing the necessary papers in the Supreme Court tomorrow. Fapohunda, who was the Host of the webinar organized by Ekiti State Ministry of Justice and LawPavilion, added that “We are convinced that a definite pronouncement by the Supreme Court is necessary in order to put the matter at rest once and for all.’

Lawyers have been speaking on the development, with some giving kudos while some others give their knocks. (see http://citylawyermag.com/2020/06/05/virtual-courts-judge-sans-knock-s-w-attorneys-general-over-supreme-court-suit/). On his part, one respected senior lawyer has suggested that if the National Assembly could have powers to amend the Constitution over the virtual hearing (see “Senate introduces bill to Legalize virtual court proceedings” published on https://www.von.gov.ng/), the planned suit by the Southwest AG`s might not be out of place, as, according to him, it would assist to quickly resolve the matter, to determine whether or not there is any need for constitution amendment in that regard.

MY COMMENT
In my humble opinion, the power of the legislature (in this case, the Nigerian National Assembly) to make laws or to amend any law or the Constitution is clearly different, and as such is distinguishable, from the legal standing (locus standi) of the Attorneys-General to institute an action at the Supreme Court for this purpose. The National Assembly is empowered by section 4(2) of the Constitution to make laws for the order and good governance of Nigeria or any part of it. This power may be exercised any time without the need to wait for any live dispute, real controversy or incident to arise.

On the other hand, it is trite that a Court of Law does not sit over a hypothetical matter, as this amounts to a mere academic exercise. As already settled by the same Supreme Court, for a court’s jurisdiction to hear and determine a case brought before it, can get validly activated, the claimant or applicant must establish that there is a cause of action, and that he (the claimant) has the legal standing to institute the action, although in certain public interest and human right cases, existence of locus standi could be dispensed with.

What cannot be dispensed with, however, is prior existence of a cause of action, and this is because a suit is filed in court for purposes or remedying an wrong allegedly done to the claimant. The existence of a valid action presupposes that (1) a legal right exists which (2) had been violated (3) leading to some injury on a person or thing (4) which is legally remediable. In a long line of cases, including OSHOBA v. AMUDA, (2). MOBIL v. LASEOA, (3) CHEVRON v. LONESTAR, (4). BELLO v. AG, OYO), the Supreme Court has recognized the indispensability of existence of a cause of action (a real controversy) to the activation of the court’s jurisdiction.

In the instance case, based on the aforesaid, if the dream of these AG`s finally becomes a reality, the question that would be thrown up is as regards existence or otherwise of any live dispute or real controversy upon which the Hon AG’s could be said to have filed such a suit before the Supreme Court? I think the AG`s might have an enormous task convincing the Supreme Court that a cause of action actually exists. But there may be an alternative course, where the Supreme Court option fails; the AG’s could persuade or encourage one of the parties to the recently-conducted virtual court hearings in the High Court of Lagos State, to proceed on appeal to challenge the validity of one of the virtual proceedings. Because of the crucial nature of the subject matter, the head of the Court of Appeal would ensure that the case is afforded an accelerated hearing so that whoever loses is further encouraged to move over to the Supreme Court for a final determination. As good as it looks, this approach comes with its own challenges because, under such circumstances, question pertaining to breach of that aspect of Legal Professional Ethics relating to “Instigation of Controversy” might arise. Rule 47 (1) of the RPC expressly admonishes the Legal Practitioner to refrain from fermenting strife or instigating controversy. The Hon AG’s advising a person/party, save their close relations, to institute a law suit or to file an appeal in court, might be viewed as a violation of this Rule.

MY ADVICE
Why not we get the National Assembly to speedily amend the Constitution and thus clear all doubts. During the virtual hearing webinar organized by Law & Society Forum (LaSF) on 29 May, 2020, at which I was a Speaker, I had drawn our attention to the admonition of the Supreme Court in the case of Doherty v Doherty (1968), that use of Writ of Summons should be resorted where there is “uncertainty as to what mode of commencement of action should be used.” Why can’t we, by way of analogy, apply that counsel here. Nigerian lawyers and jurists are evenly divided as to the constitutionality or otherwise of conducting virtual court proceedings in Nigeria without a prior constitution amendment or legal reform, which means that we’ve have arrived a point of uncertainty in regard to the matter. I accordingly respectfully advise us to please err on the side of caution by adopting the approach that would save us much stress, in the long run, especially in view of the ripple effects of the recent decision of the Supreme Court in UDEOGU V FRN (Orji KALU Case) (see https://www.tvcnews.tv/scourt-nullifies-orji-kalus-conviction-orders-fresh-trial/) wherein section 396(7) Administration of Criminal Justice Act (ACJA), 2015 was struck down on grounds of its inconsistency with provisions of the Constitution.

Although the procedure for Constitution amendment in Nigeria is not a “moi-moi” matter (not easy; is cumbersome), if these AG’s cooperate with the National Assembly on the matter, it would take less than the next two months to get the Constitution amended to expressly authorize or legalize virtual hearing and thus leave no one in doubt while saving us all future embarrassing controversy. The time and resources the AG’s propose to expend at the Supreme Court over a mere academic exercise that is likely going to be thrown out on grounds of absence of a cause of action or locus standi or both, should be channeled towards rendering necessary cooperation to the National Assembly to do the needful within the shortest possible time. American operatic soprano, Beverly Sills, (1929-2007) once said, “there are no shortcuts to anyplace worth going.”

Respectfully,
SYLVESTER UDEMEZUE (udems)

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VIRTUAL COURTS: JUDGE, SANs KNOCK S/W ATTORNEYS-GENERAL OVER SUPREME COURT SUIT

Attorneys-General of Nigeria’s South West Zone came under searing attack today over plans by the State chief law officers to seek a constitutional interpretation of virtual court hearings.

CITY LAWYER had in an exclusive report noted that there was a move by the six South West attorneys-general to approach the Supreme Court for an interpretation of section 36(3) and (4) of the 1999 Constitution as it relates to virtual court hearings.

Ekiti State Attorney-General & Commissioner for Justice, Mr. Olawale Fapohunda had informed participants at a webinar last Wednesday that the Attorneys-General resolved during a maiden virtual conference to head to the Supreme Court to seek resolution of the controversial virtual hearing provision contained in the National Judicial Council (NJC) Guidelines and sundry Practice Directions issued by heads of courts.

But no sooner had the CITY LAWYER report hit the newsstands than some senior lawyers lampoon the move by the attorneys-general.

Firing the first salvo, foremost Economic and Financial Crimes Commission (EFCC) prosecutor, Mr. Rotimi Jacobs SAN wondered whether the suit would not be a mere academic exercise. He said: “Would the action not be academic?” Continuing, he asked: “Can the Supreme Court entertain academic question not based on any live issue?”

Aligning with Jacobs, Mr. Ayodeji Esan said: “My thoughts exactly. What disputes and between which parties would the court be called upon to adjudicate? Who are the defendants?”

While leading litigator, Mr. Adebayo Adenipekun SAN felt that the issue of parties may be resolved, he aligned with both jurists on the thorny issue of the dispute to be presented to the apex court for resolution. His words: “I have a feeling they will make the Attorney-General of the Federation the defendant. The question will still be ‘what is the dispute?’”

However, speaking at today’s webinar on “Engagement on the Federal High Court Practice Directions and the Protocols on Virtual Hearings 2020” organized by the Nigerian Bar Association (NBA), Lagos Branch, the Administrative Judge of the Federal High Court (Lagos Division), Justice Muhammad Liman was unsparing in thumping down the move by the attorneys-general.

Describing the move as “cavalier,” the leading jurist said: “I do not think the attorneys-general need to go the Supreme Court for any interpretation,” adding that aside from the fact that the NJC did not have the power to make rules for the courts, there was a need to distinguish between the Right to Fair Hearing and public access to court hearings.

Justice Liman stated that both concepts cannot be lumped together, adding that while public hearing “is the limited opportunity the Constitution affords everyone to court hearing,” the challenge thrown up by virtual hearing “is not a serious problem that cannot be ameliorated.”

Aligning himself with Justice Liman’s distinguishing of the two concepts, former Lagos State Attorney-General & Commissioner for Justice, Mr. Olasupo Shasore SAN said that “publicity is the soul of justice.” Citing several judicial authorities, Shasore said the intendment is “to remove the possibility of arbitrariness” and to ensure that the public “have an opportunity of judging the judges.”

Dwelling specifically on constitutional interpretation, the former Lagos State chief law officer cited NAFIU RABIU V STATE in reading the mind of the Supreme Court on constitutional interpretation. “It is an organic document and it does not provide for everything,” he said, adding however that there is a tendency for the courts to seek strict interpretation of the Constitution and statutes.

Other speakers at the NBA Lagos Branch webinar included Mr. Wale Akoni SAN, Mr. Babajide Ogundipe and Mr. Yemi Akangbe.

Speaking at an Attorneys-General Colloquium on “Remote hearing and e-filing in Nigeria: A broader perspective and practical, foolproof implementation,” Fapohunda had said that the Attorneys-General of Lagos, Ondo and Oyo States would on Thursday file a suit at the Supreme Court to test the constitutionality of remote hearings.

His words: “Since the National Judicial Council issued its Guidelines for court sittings in this COVID-19 period, we have had a national conversation particularly among justice sector stakeholders on the constitutionality or otherwise of remote court hearings.”

Continuing, the leading justice reform advocate said: “Let me however quickly use this opportunity to inform participants that following a resolution of the South West Attorneys-General, the Attorneys-General of Lagos, Ondo and Oyo States have decided to approach the Supreme Court to seek a constitutional interpretation of Section 36(3) & (4) of the 1999 Constitution, particularly as it relates to remote court hearings. We will be filing the necessary papers in the Supreme Court tomorrow.”

Fapohunda, who was the Host of the webinar organized by Ekiti State Ministry of Justice and LawPavilion, added that “We are convinced that a definite pronouncement by the Supreme Court is necessary in order to put the matter at rest once and for all.”

Since the issuance of the NJC Guidelines and several Practice Directions on virtual court hearings, some jurists have argued that virtual hearings violate Section 36(3) and (4) of the 1999 Constitution on the requirement that court hearings must be held in public.

Please send emails to citylawyermag@gmail.com. Copyright 2018 CITY LAWYER. All materials available on this Website are protected by copyright, trade mark and other proprietary and intellectual property laws. You may not use any of our intellectual property rights without our express written consent or attribution to www.citylawyermag.com. However, you are permitted to print or save to your individual PC, tablet or storage extracts from this Website for your own personal non-commercial use.

VIRTUAL HEARING: SOUTH WEST AGs STORM SUPREME COURT TOMORROW

Attorneys-General of Nigeria’s South West Zone have resolved to seek a constitutional interpretation of virtual court hearings as set out in the National Judicial Council (NJC) Guidelines and sundry Practice Directions issued by heads of courts, CITY LAWYER can exclusively report.

Speaking today at an Attorneys-General Colloquium on “Remote hearing and e-filing in Nigeria: A broader perspective and practical, foolproof implementation,” Ekiti State Attorney-General & Commissioner for Justice, Mr. Olawale Fapohunda said the Attorneys-General of Lagos, Ondo and Oyo States would head to the Supreme Court tomorrow to test the constitutionality of remote hearings.

His words: “Since the National Judicial Council issued its Guidelines for court sittings in this COVID-19 period, we have had a national conversation particularly among justice sector stakeholders on the constitutionality or otherwise of remote court hearings.”

Continuing, the leading justice reform advocate said: “Let me however quickly use this opportunity to inform participants that following a resolution of the South West Attorneys-General, the Attorneys-General of Lagos, Ondo and Oyo States have decided to approach the Supreme Court to seek a constitutional interpretation of Section 36(3) & (4) of the 1999 Constitution, particularly as it relates to remote court hearings. We will be filing the necessary papers in the Supreme Court tomorrow.”

Fapohunda, who was the Host of the webinar organized by Ekiti State Ministry of Justice and LawPavilion, added that “We are convinced that a definite pronouncement by the Supreme Court is necessary in order to put the matter at rest once and for all.”

Since the issuance of the NJC Guidelines and several Practice Directions on virtual court hearings, some jurists have argued that virtual hearings violate the 1999 Constitution on the requirement that court hearings must be held in public.

Section 36(3) and (4) of the 1999 Constitution provides as follows:
“(3) The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in subsection (1) of this section (including the announcement of the decisions of the court or tribunal) shall be held in public.
(4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal:

Provided that –
(a) a court or such a tribunal may exclude from its proceedings persons other than the parties thereto or their legal practitioners in the interest of defence, public safety, public order, public morality, the welfare of persons who have not attained the age of eighteen years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interests of justice;

(b) if in any proceedings before a court or such a tribunal, a Minister of the Government of the Federation or a commissioner of the government of a State satisfies the court or tribunal that it would not be in the public interest for any matter to be publicly disclosed, the court or tribunal shall make arrangements for evidence relating to that matter to be heard in private and shall take such other action as may be necessary or expedient to prevent the disclosure of the matter.”

Other speakers at the webinar were the Managing Director of LawPavillion Business Solutions, Mr. Ope Olugasa and the Group Managing Director of Telnet Nigerian Limited, Mr. Folorunsho Aliu. According to the organisers, participants at the webinar attended by CITY LAWYER included justice sector stakeholders, legal practitioners, court officials, and law enforcement agencies.

Please send emails to citylawyermag@gmail.com. Copyright 2018 CITY LAWYER. All materials available on this Website are protected by copyright, trade mark and other proprietary and intellectual property laws. You may not use any of our intellectual property rights without our express written consent or attribution to www.citylawyermag.com. However, you are permitted to print or save to your individual PC, tablet or storage extracts from this Website for your own personal non-commercial use.

ZAMFARA ELECTION: THE TASK BEFORE SUPREME COURT

By IGE ASEMUDARA

Prominent lawyer and Managing Partner of Royal Practice (Legal Group), Ige Asemudara argues that there is no ambiguity as to the path the Supreme Court should tread in the Zamfara State elections saga

There is no gainsaying the fact that non-compliance with rules and disobedience to law and order has been the bane of the Nigerian state; her institutions are bogged down by it and her machineries are almost grinding to a halt. Thus, government agencies and departments are either unproductive, under-productive or counter-productive. From university admissions to recruitment into government services, and the administration of public services of the federation and its various constituent states, standard procedures are hardly ever followed. This general affliction of the Nigerian state is replicated in virtually all the facets of public life including electoral matters. Nigeria stinks as impunity reigns! In Nigeria, the law merely stares as its assailers rapes and tortures her.

In electoral matters, Nigeria has been greeted by a spate of breaches of the rule of law and standard electoral practices making her a laughing stock in the international community. Failure to play by the rules has been a serious challenge for the various participants. It is unfortunate that many powerful individual aspirants or candidates and their political parties are involved in the deliberate and arrogant assault on the electoral laws. The involvement of political parties in these breaches manifests during inter-parties general elections as well as intra-party primaries. In law, the internal democracies of parties are as important to the process as the general elections and the Electoral Act, 2010 does not pretend about this. Due to the bad practices of the past years and the criticisms leveled against the Independent National Electoral Commission (INEC), the electoral umpire decided to rise up and ensure compliance with the law. The result is the Rivers and Zamfara debacle.

Whilst Rivers has been laid to rest vide the Supreme Court decision of 11th February, 2019, Zamfara appears to still pretend that there is a misty cloud of uncertainty as the two All Progressives Congress (APC) factions continue in legal warfare. The other participating political parties have also continued to embark on series of journeys targeted at resolving the log jam in their favour. In all of these, where does the law stand in Zamfara ? What must INEC do in the rare circumstances of the issue and in view of the law particularly the decision of the Court of Appeal (Sokoto division) graciously rolled down by my Lords, Tom Shaibu Yakubu, Tijjani Abubakar and Jamilu Yammama Tukur JJJCA on the 25th day of March, 2019?

In the prelude to the 2019 general election, APC had failed, neglected or refused to conduct a primary election for the aspirants to the governorship, National Assembly and State House of Assembly positions in Zamfara state before the lapse of time as provided by law. So, INEC communicated its intention not to include any candidate of the APC for these positions in the election until the party rushed to the Zamfara State High Court to secure a judgment that compelled INEC to recognise and include the candidates of the party submitted by the state chairman of the party. It was under this circumstance that the parties went into the general election on 9th of March, 2019. Whilst this went on, an appeal was pending against the judgment of Shinkafi J. which mandated INEC to recognize and include the names of the candidates of the APC on the ballot papers. Eventually, INEC announced the results of the March, 2019 governorship election and declared Alhaji Mukhtar Shehu of the APC as the winner of the election scoring 534, 541 votes to defeat Dr. Bello Muhammad Mutawalle of the People’s Democratic Party (PDP) who polled 189, 452 votes. Thereafter, the Court of Appeal concluded the hearing of the appeal lodged by Senator Kabiru Marafa and others and gave a judgment setting aside the decision of the High Court thereby nullifying and invalidating the APC primaries purportedly conducted on the 3rd and 7th day of October, 2018 in Zamfara state. This made INEC to immediately withhold the issuance of certificate of returns to the APC members in Zamfara state. This seems to have created a misty atmosphere in Zamfara which ought not to be as the law is clear enough on an issue such as this.

According to Lon Fuller, Law is the enterprise of subjecting human conduct to the governance of rules. In his Morality of Law, Fuller identified eight principles of legality which are generally accepted by legal scholars as capturing the essence of the rule of law. Without bogging down the reader with the details of Fuller’s proposition, it suffices to say that the provisions of the Electoral Act, 2010, the Constitution of the Federal Republic of Nigeria 1999 (as amended), the actions and conduct of INEC as the administering authorities of the electoral laws as well as the decision of the Court of Appeal on the 25th of March, 2019 are all within the enduring parameters of legality envisaged by Fuller. In simple terms, every participant in an election is not only expected to comply with the rules but he is bound by the clear rules and laws applicable to the said election for there is no game without a rule.

There has been a raging debate on what INEC ought to do under the circumstance. Like the preponderance of opinion, the Court of Appeal agreed and held that APC failed to comply with the provisions of Sections 31(1) and 87(1&2) of the Electoral Act, 2010. In reaching its decision the Honourable Court of Appeal quoted extensively from the Supreme Court’s decision in LAU V. PDP (2007) LPELR – 42800 (SC) @ pp 24-26 thus: “This is a hard and very bitter lesson for political parties to learn, they may have chosen candidates or eminent personalities they want to present as candidates to INEC, but they have to play by the rules, the chosen candidates must comply with the requirements of the law; they must abide by the provisions of the electoral Act, which creates a level playing field for all aspirants, who seek to contest elections. So, the political parties and their candidates must obey the Rules”. Now, it is without doubt that section 87(9) of the Electoral Act, 2010 provides that “where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue”. In the Zamfara situation, the candidates have been included in the election based on a court order which has now been reversed. The reversal means that the inclusion of APC candidates in the election was not just wrong but void.

It is humbly submitted that the refusal by INEC to issue the APC candidates certificates of return for the elections of 9th March, 2019 is in tandem with law. This is because in law, one cannot place something on nothing and expect it to stand. Lord Denning said that much in U.A.C. V. Macfoy (1962) A.C. 153 when he held that “If an act is void, then it is in law a nullity…. It is automatically null and void without much ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad”. It is safe for INEC to hold on to the certificate until any appeal lodged at the Supreme Court is determined.

However, at the moment seeing through the eyes of the law in the spectacle of the Court of Appeal judgment of 25th March, 2019, the candidates of the APC never participated in the election and have no rights to take any benefit of it. INEC must however, bear in mind that like nature, the law abhors vacuum and governance must go on despite these electoral hurdles. In case there is no judgment from the Supreme Court before the 29th May, 2019, it is the candidates of the party that polled the second highest votes in constituencies and districts where APC came first, which should be handed the certificates of return and sworn-in. For instance, in the governorship position, Dr. Bello Muhammad Mutawalle of the PDP who came first among the lawful candidates in the election should be the person to be handed the certificate of return and sworn-in as the Executive Governor of Zamfara State the victory of the purported candidate of the APC over him being merely pyrrhic and false.

Finally, while it is hoped that politicians and political parties have learnt their lessons in all of these situations, it is important to state that until and unless an appeal is lodged at the Supreme Court and a verdict returned upturning the extant Court of Appeal judgment, APC and her members have no right to covertly or overtly obstruct INEC from performing its duties of issuing a certificate of return to the candidates of other political parties that have polled the highest number of votes in the eyes of the law. INEC being one of the respondents that lost at the appeal court must swiftly perform its statutory duty as an unbiased umpire. I am in agreement with Jerome Frank that a legal right is a law-suit won, and a legal duty is a law-suit lost.

Ige Asemudara Esq. a Lagos-based Legal Practitioner is the Managing Partner of Royal Practice (Legal Group), Lekki, Lagos.

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Rule of Law vs. National Security: What the Supreme Court Actually Said

President Muhammadu Buhari while giving an address at the opening ceremony of the Nigerian Bar Association (NBA) 2018 Annual General Conference, said: “Rule of Law must be subject to the supremacy of the nation’s security and national interest. Our apex court has had cause to adopt a position on this issue in this regard and it is now a matter of judicial recognition that, where national security and public interest are threatened or there is a likelihood of their being threatened, the individual rights of those allegedly responsible must take second place, in favour of the greater good of society.”

The assertion has raised controversies. CITY LAWYER LAW REPORT details below what the Supreme Court actually said in DOKUBO-ASARI V FEDERAL REPUBLIC OF NIGERIA: Continue Reading