BARRISTER ORKER JEV & ANOR VS. SEKAV DZUAIYORTYOM & ORS.
LEGALPEDIA ELECTRONIC CITATION: LERSC. 164/2012
AREAS OF LAW:
ELECTION PETITION, APPEAL, CONSTITUTIONAL LAW, ACTION, JURISDICTION, INTERPRETATION OF STATUTES
SUMMARY OF FACTS:
The 2nd Appellant submitted the name of the 1st Appellant as the winner of its primaries for House of Representatives for Buruku constituency of Benue State to the 2nd Respondent instead of the name of the 1st Respondent who won the primary election conducted by the 3rd Respondent, who was the head of the Electoral Committee of the 2nd Appellant. Aggrieved by the said development, the 1st Respondent took out an originating summons at the Federal High Court, Makurdi contesting the return of the 1st Appellant and further sought for an injunction restraining the 1st Appellant from being flag-bearer of the 2nd Appellant in the general elections. The trial Court entered judgment for the 1st Respondent. Aggrieved by the decision of the trial Court, the Appellants appealed the Court of Appeal where the appeal was dismissed thus culminating into a further appeal to the Supreme Court.
ISSUES FOR DETERMINATION:
Was the Court of Appeal right when it struck out Appellants’ Grounds 1, 3 and 4 and issue No. 1 for the reason that competent and incompetent Grounds of Appeal were argued together?
Was the Court of Appeal right in affirming the trial Court’s jurisdiction, given that the main Relief of the 1st Respondent at the trial Court was not against an agency of the Federal Government?
Was the Court of Appeal right to have affirmed the decision of the trial Court to determine the matter upon the 1st respondent’s originating summons in spite of the highly contentious affidavit and documentary evidence tendered by the parties?
Did the Appellants Appeal against the findings made by the Trial Court on Exhibits A, B and C?
Was the 1st Respondent’s Notice of Preliminary objection competent before the Court of Appeal?
Was the judgment of the Court of Appeal affirming the trial Court’s judgment not against the weight of evidence adduced at the trial?
COURT SHOULD NOT DIG INTO RECORDS TO FETCH ISSUES:
It is trite that our system of appeals in our adversary system does not allow or permit a court to dig into the records and fetch issues no matter how patently obvious, and, without hearing the parties, use it to decide an issue in controversy between the parties to the appeal. It runs counter to the impartial status and stance expected of a judge in the system. It is better that the parties raise and argue it by themselves. But if it is so fundamental that it goes to the jurisdiction or vires of the court, then it must be brought to the notice of the parties to the appeal and argument received on it before it is decided – PER OKORO, JSC
COURT TO GIVE PARTIES AN OPPORTUNITY TO BE HEARD WHERE IT RAISES ISSUES SUO MOTU
By raising an issue suo motu by a court and basing a decision on it without arguments from both parties, the party affected is denied the opportunity of being heard and this is a breach of his right to fair hearing entrenched in Section 36 of the Constitution of the Federal republic of Nigeria 1999 (as amended). Where a court fails to bring an issue raised suo motu to the attention of the parties and argument taken on it before deciding on it, such a decision is liable to be set aside – PER OKORO, JSC
DUTY OF COURT NOT TO BRUSH ASIDE PRELIMINARY OBJECTION BOTHERING ON JURISDICTION
A preliminary objection which borders on jurisdiction cannot be brushed aside by the court but must be considered by the court regardless of the manner in which it was raised. Such issue, I must say can be raised for the first time in this court with or without leave. PER OKORO, JSC
ANY INCOMPETENT GROUND WHERE GROUNDS ARE LUMPED TOGETHER CONTAMINATES THE ENTIRE GROUNDS
Though one can validly lump several related grounds of appeal into one issue and argue same together, if any of the grounds so lumped together is found to be incompetent, then it contaminates the whole issue and renders it incompetent as the court cannot delve into the said issue on behalf of the litigant and excise the argument in respect of the competent grounds from those of the incompetent grounds in the issue. The law is no doubt settled that any issue, or issues formulated for the determination of an appeal must be distilled from, or must arise or flow from a competent ground or grounds of appeal. Again, issues distilled from either incompetent grounds of appeal or a combination of competent and incompetent grounds of appeal are in themselves not competent and are liable to be struck out. An incompetent ground of appeal cannot give birth to a competent issue for determination. PER OKORO, JSC
AN APPEAL WITHOUT LEAVE WHERE LEAVE IS REQUIRED IS INCOMPETENT
It is trite that where leave is required before an appeal could be filed; failure to obtain the leave would not only render the appeal incompetent but also rob the court of its jurisdiction.PER OKORO, JSC
SOURCES OF JURISDICTION
It is now well settled that jurisdiction is the life wire of a court as no court can entertain a matter where it lacks the jurisdiction. It is also well settled that the jurisdiction of courts in this country is derived from the Constitution and statutes. No court is permitted to grant itself power to hear a matter where it is not so endowed and if it does, the entire proceedings and the judgment derived therefrom, no matter how well conducted, is a nullity. Therefore, every court must ensure that it is well endowed with the jurisdiction to hear a matter before embarking on the exercise else it would be wasting precious judicial time –PER OKORO, JSC
RIGHT OF PERSON WHO IS DISSATISFIED WITH POLITICAL PARTY CONDUCT OF PRIMARY ELECTION TO SEEK REDRESS IN COURT
It is now well settled that issue of nomination and/or sponsorship of a candidate for an election falls within the domestic affairs of a political party being a pre-primary duty of the party. However, where the political party decides to conduct primary election to choose its flag bearer, any dissatisfied contestant at the primary is now empowered by section 87 (9) of the Electoral Act 2010 (as amended) to ventilate his complaint before the Federal High Court or High Court of a State or of the Federal Capital Territory. PER OKORO, JSC
DUTY OF COURT TO GIVE STATUTES THEIR LITERAL INTERPRETATION WHERE THE WORDINGS ARE CLEAR
It is trite that where the words of a statute are clear and unambiguous, the courts are enjoined to give them their ordinary grammatical meaning. PER OKORO, JSC
DUTY OF COURT TO INTERPRETE STATUTES IN ACCORDANCE WITH THE INTENTION OF THE MAKERS
The function of the court is to interpret that document according to the intent of those who made it. PER OKORO, JS
CONCURRENT POWERS OF THE STATE HIGH COURT AND FEDERAL COURT TO ENTERTAIN COMPLAINTS ARISING FROM CONDUCT OF PRIMARY ELECTION OF A POLITICAL PARTY
Beyond the items in section 251 of the Constitution upon which the Federal High Court exercises exclusive jurisdiction, section 87 (9) of the Electoral Act 2010 (as amended), an Act of the National Assembly, confers additional jurisdiction on the Federal High Court to hear and determine disputes, complaints and grievances arising from the conduct of a primary election of a political party. This special jurisdiction so conferred is, by law, to be exercised concurrently with the State High Court and the FCT High Court. PER OKORO, JSC
PROPRIETY OF USING ORIGINATING SUMMONS WHERE A STATUTE IS TO BE INTERPRETED
Where the issue is that of construction of documents or interpretation of statutory provisions, it is safe and prudent to approach the court by Originating Summons. PER OKORO, JSC
IMPROPRIETY OF USING ORIGINATING SUMMONS IN HOSTILE PROCEEDINGS
The procedure by originating summons ensures a quick disposal of a suit especially an election matter which requires some measure of urgency. However where the proceedings are hostile, originating summons should not be used. PER OKORO, JSC
COURT SHOULD ORDER PLEADINGS WHEN THERE IS CONFLICT IN AFFIDAVIT IN SUPPORT OF ORIGINATING SUMMONS
The general principle of law regarding conflict in affidavit in an originating summons procedure is that where this is the case, the court should order for pleadings in order for the parties to lead evidence to resolve such conflicts. However, where there are documents annexed to the affidavit of the parties which can be effectively used to resolve the seemingly conflicts, there would be no need to order for pleading and this is exactly what the learned trial judge did which was affirmed by the Court of
Appeal. PER OKORO, JSC
ARGUMENT OF COUNSEL DOES NOT REPLACE EVIDENCE
The argument of counsel, no matter how brilliant cannot take the place of evidence. PEROKORO, JSC
IMPROPRIETY OF COURT EXERCISING ITS DISCRETION TO A PARTY WHO IS IN CONTEMPT OF COURT’S ORDER
It is now well settled that a person who is in contempt of a subsisting court order is not entitled to be granted the court’s discretion to enable him continue with the breach. PER OKORO, JSC
INGREDIENTS OF JURISDICTION
In Madukolu & Ors v. Nkemdilim (1962) 2NSCC P. 374. Bairamian, JSC made some observations on jurisdiction and the competence of a court. His lordship said that a court is competent when-
1. It is properly constituted as regards members and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
3. The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
It is settled law that it is the claim of the plaintiff as disclosed in the statement of claim that determines the jurisdiction of the court. PER ONNOGHEN JSC.
Shugaba V. Union Bank of Nigeria Pic (1999) 11 NWLR (pt 627) 459,
Governor of Lagos State V Ojukwu (1986) 1 NWLR (pt 18) 621.
Utih V Onoyivwe (1991) 1 NWLR (pt 166) 166, (1991) 1 SCNJ 25,
Madukolu V Nkemdilim (1962) 2 All NLR (pt 11) 5.
Madukolu & Ors v. Nkemdilim (1962) 2NSCC P. 374
See Nwosu V Imo State Environmental Sanitation Authority (1990) 2 NWLR (pt 135) 688,
Kimday V Military Governor of Gongola State (1988) 5 SCNJ 28 at 56.
Fashanu V Adekoya (1974) 1 All NLR (pt 1) 35 at 91 – 92.
Ojo Ogbemudia Ebolor V Felicia Osayande (1992) NWLR (pt 249) 524 or (1992) 7 SCNJ 217,
Ndiwe V Okocha (1992) 7 SCNJ 355
Kuti V Balogun (1978) 1 SC, 53 at 60,
Iriri V Erhurhobara (1991) 2 NWLR (pt 173) 252 at 265.
Ibori V Agbi (2004) All FWLR (pt 202) 1799 at 1835.
Pan African Int. Inc. V Shoreline Lifeboats Ltd (2010) All FWLR (pt 524) 56 at 65.
Akpan V Bob (2010) 17 NWLR (pt 1223) 421,
Amadi V Orisakwe (1997) 7 NWLR (pt 511) 161,
Fagunwa & anor V Adibi & ors (2004) 7 SCNJ 322.
Egbe V Yusuf (1992) NWLR (pt 245) 1.
Nnonyen V Anyiechie (2005) All FWLR CFL 253 604.
STATUTES REFERED TO:
Court of Appeal Act
Electoral act 2010 (as amended)
Action Congress of Nigeria Guideline for the Nomination of candidates for Public Offices in Nigeria
Constitution of the federal Republic of Nigeria, 1999 (as amended)
UNIVERSITY OF ILORIN V RASHEEDAT ADESINA
LEGALPEDIA ELECTRONIC CITATION: LERSC.166/2009
AREAS OF LAW:
ADMINISTRATIVE LAW, JURISDICTION, APPEAL, FAIR HEARING
SUMMARY OF FACTS:
The Plaintiff/Respondent took part in a protest in the Defendant/Appellant institution which led to her invitation to the student’s disciplinary committee by the Senate of the Appellant to answer some questions. The Plaintiff/Respondent however refused to appear before the panel but instituted an action in Court in consequence of which the Defendant/Respondent refused to release the result of the Plaintiff/Respondent till the determination of the suit. At the trial Court, the Plaintiff/Respondent sought inter alia for an injunction restraining the Defendant/Appellant from commencing disciplinary proceedings against her and a declaration that having satisfied the requirements; the Defendant/Appellant does not have the right to withhold her result. The trial Court granted all the reliefs sought by the Plaintiff/Respondent. Aggrieved by the trial Court’s ruling, the Defendant/Appellant appealed to the Court of Appeal where the appeal was dismissed. Still dissatisfied with the decision of the trial Court, the Defendant/Appellant appealed to the Supreme Court.
Whether having regard to the facts and circumstance of this case, the court below was wrong in holding that the trial court had jurisdiction to hear and determine the case. (Ground 1 of Original Notice and additional Ground of Appeal).
Whether the appellant resiled from the agreement reached with its visitor when there was no evidence that the respondent was prevented from continuing her studentship (Ground 2 of Original Notice of Appeal)
Whether the court below was not wrong in holding that bias can be reasonably inferred from the intransigence of the appellant. (Ground 3 of Original Notice of Appeal
THE NEED FOR STUDENT WHO SITS FOR AN EXAMINATION TO BE AWARE OF THE RESULT
It is the practice the world over that where a student sits for an examination or completes a course he or she is entitled to know the outcome of that examination. It therefore beats my imagination why the appellant refused to release the respondent’s result on the flimsy excuse that she failed a core course and so the appellant had no obligation to release a non-existent result. It was an unnecessary show of power for the University to turn a deaf ear to the respondent’s entreaties to release the results. PER AKAAHS JSC.
COURT CAN INTERFERE WITH DISPUTES BOTHERING ON THE INTERNAL MATTERS OF A UNIVERSITY WHERE THE CIVIL RIGHT OF A PERSON IS AFFECTED
The courts have no jurisdiction to interfere in the internal or domestic matters of a University. Such matters are within the exclusive province of the Senate of the University and the visitor. But where it becomes clear that in resolving domestic disputes the University is found to have breached the civil rights and obligations of the respondent thereby raising issues of public import, the courts would have jurisdiction. PER RHODES-VIVOUR JSC
DIFFERENCE BETWEEN RELEASE OF RESULTS AND AWARD OF RESULTS- POWER OF COURT TO ENTERTAIN ACTION PREDICATED ON REFUSAL OF THE UNIVERSITY TO RELEASE RESULTS
There is a vast difference between release of results and award of degree. Domestic disputes are those disputes which are solely of interest to members of the University, but the release of results is a matter of some interest to the public and is not strictly a domestic dispute. After all the University has exclusive right to decide who it confers its degrees on. No one can question that. A student who takes part in an examination is entitled to see his results. Refusal to release results is not strictly a domestic issue. Refusal to release result with no reason for the refusal raises issues of breach of civil rights and obligation, denial of fair hearing which are all justiciable. Such a refusal is no longer within the confines of domestic affairs of the University. The courts have jurisdiction to examine such matters. On the other land the refusal to award degree cannot be questioned by the courts. That is within the exclusive province of the University. There is no reason why the appellant refused to release the respondent results, and also refused to honour the pardon given the respondent. The respondent’s action is justiciable and the Federal High Court has jurisdiction to hear and determine the case. PER RHODES-VIVOUR JSC
COURT WILL ENTERTAIN MATTERS BOTHERING ON THE INTERNAL AFFAIRS OF THE UNIVERSITY WHERE THE STUDENT HAS EXHAUSTED ALL THE AVAILABLE INTERNAL REMEDIES
Courts cannot and will not usurp the functions of the Senate, the Council and the Visitor of the university in the selection of their fit and proper candidates for passing and for the award of certificates, degrees and diplomas. See Akintemi V Onwumechili (1985) 1 NWLR (pt 1) 68, University of Calabar V Esiaga (1997) 4 NWLR (pt 502) 719. However, although the general rule is that consideration for an award of degrees and certificates are in the domestic domain or jurisdiction of the universities, there are however, exceptions. As it has happened in the instant appeal, where the student has exhausted all avenues and entreaties, and the university is adamant as in neither releasing the result nor giving good, substantial and verifiable reasons for withholding the result, even after intervention by the visitor of the university, the student is entitled to approach the court for redress. In such circumstance, the court should not shy away from ensuring that the university authority abides by the law setting up the Institution – PER OKORO JSC
Magit V Universitv of Agric Makurdi (2005) I9NWLR (Pt. 959) 211
Akintemi & ors v Onwumechili & ors 18985 1 NSCC vol16 p 45
University of Calabar V Esiaga (1997) 4 NWLR (pt 502) 779
Akintemi V Onwumechili (1985) 1 NWLR (pt 1) 68
University of Calabar V Esiaga (1997) 4 NWLR (pt 502) 719
STATUTES REFERRED TO
University of Ilorin Act Cap. U 7 Laws of the Federation, 2004.
ADAMS O.IDUFUEKO V PFIZER PRODUCTS LIMITED & ANOR
LEGALPEDIA ELECTRONIC CITATION: LERSC. 133/2004
AREAS OF LAW:
LABOUR LAW, CONTRACT, APPEAL
SUMMARY OF FACTS
The Plaintiff/Appellant instituted an action against the Defendants/Respondents at the High Court of Lagos State claiming the sum of N2,883,727 (Two Million, Eight Hundred and Eighty Three Thousand, Seven Hundred and Twenty Seven Naira] being general and special damages arising from the unlawful termination of his employment by the Defendants/Respondents. The trial Court partly granted the reliefs sought by the Plaintiff/Appellant. Dissatisfied with the decision of the trial Court, the Plaintiff/Appellant appealed to the Court of Appeal where his appeal was dismissed thus culminating into a further appeal to the Supreme Court.
Whether the appellant has ably demonstrated sufficient reasons to set aside the concurrent findings of the two lower courts.
Whether the judgment of the Court of Appeal which affirmed the judgment of the trial court is flawed
CONCURRENT FINDINGS OF FACT SHOULD NOT BE DISTURBED
“The law is well settled that this court will not interfere or disturb concurrent findings of fact by the courts below unless such findings are found to be perverse or capable of occasioning a miscarriage of justice. This principle which has been restated by this court over the years with unwavering consistency and force is founded on the logic that a trial judge is in a best position to draw inferences from primary facts. The Appellate court can reject an inference or inferences and make what it considers to be the right inferences supported by evidence – PER ONNOGHEN, JSC
COURT SHOULD RESPECT THE AGREEMENT BY PARTIES
In determining the rights and obligations of the parties to a contract, the court must respect the sanctity of contract made by them. PER ONNOGHEN, JSC
EXTRINSIC EVIDENCE CANNOT BE USED TO VARY A WRITTEN CONTRACT
“Extrinsic evidence will not be given to contradict, vary, and alter the effect of a written contract”PER ONNOGHEN, JSC
AGREEMENT FOR VARIATION OF AN EXISTING CONTRACT MUST BE PRECISE AND CLEAR
“The general rule is that an agreement for variation of an existing contract must itself posses the characteristics of a valid contract such as offer, acceptance and consideration” ”PER WALTER SAMUEL NKANU ONNOGHEN, JSC
LENGTH OF NOTICE TO BE GIVEN IN A WRITTEN AND UNWRITTEN CONTRACTS
lt is well settled that in such relationship an employer can terminate the service of an employee at any time, giving the appropriate length of notice stipulated in the contract or such length of notice deemed by the court to be reasonable in the circumstance of the case, in the absence of any express provision for length of notice in the contract of service: see IMOLOAME v. WAEC (1992) 9NWtR (pt 265) 303 at 321. PER ONNOGHEN, JSC
HOW COURT CAN AWARD DAMAGES WHERE TERMINATION OF CONTRACT OF EMPLOYMENT IS WRONGFUL
“The position of the law is that where the termination of a contract of service was found to have been wrongful, the measure of damages that the plaintiff could be entitled to would be the salaries for the length of time during which notice of the termination would have been given in accordance with the contract of employment. He would, in addition, be paid other legitimate entitlements due to him at the time his employment was terminated. PER ONNOGHEN, JSC
WHEN ELEMENTS OF UNLAWFULNESS ARISES IN A CONTRACT
In a contract of employment, the element of unlawfulness arises, where in carrying out the decision to terminate the employment, the employed or employee has failed, neglected or refused to adhere to the principles laid down by statute, in a case of contract with statutory flavor, or by the terms of contract contained in the letter of employment, in ordinary contract of employment – PER ONNOGHEN, JSC
COURT TO USE A REASONABLE MAN’S TEST WHERE PERIOD OF NOTICE FOR TERMINATION OF EMPLOYMENT NOT STATED
Where the period of notice is not stipulated in contract of employment, it behoves on the trial court to apply the test of a reasonable man to imply the period of notice that would have been adequate in the circumstances, having regard to the nature of the employment, the length of service etc. – PER ONNOGHEN, JSC
IMPROPRIETY OF RAISING AN ISSUE NOT PRONOUNCED UPON BY THE TRIAL COURT ON APPEAL
lt is trite law that an issue which is not raised, argued and pronounced upon by a trial court, cannot be validly raised as a ground of appeal or as issue for determination before the appellate court, as such issue or argument made thereon are not competent and therefore go to no issue. PER ONNOGHEN, JSC
PRIVITY OF CONTRACT – ONLY PARTIES TO A CONTRACT CAN SUE AND BE SUED
In other words, only the parties to a contract can sue or be sued on the contract; a stranger to a contract can neither sue nor be sued on the contract ”PER ONNOGHEN, JSC
DEFINITION OF AN ALTERNATIVE AWARD
“An alternative award is an award that can be made instead of another. It is a separate claim and a separate award. It is not claimed as an additional award. This must be avoided, otherwise it would amount to double compensation”PER ONNOGHEN, JSC
COURT SHOULD CONSTRUE ALTERNATIVE AWARDS STRICTLY
“In law, alternative reliefs are construed distinctively and not conjunctively”PER ONNOGHEN, JSC
NETTING ASIDE CONCURRENT FINDING OF LAW BY LOWER COURT – SPECIAL CIRCUMATSNCES UNDER WHICH SUPREMEM COURT CAN INTERFER
“It is settled principle of law that the Supreme Court does not make a practice of netting aside the concurrent findings of fact by the lower courts unless there are very special circumstances such as where the findings are perverse or not supported having regard to the evidence on record or were reached as a result of applying a wrong approach to the evidence or as a result of a wrong application of a principle of substantive or procedural law – PER RHODES-VIVOUR, JSC
BINDINGNESS OF PARTIES BY TERMS OF CONTRACT
It is trite that where parties enter into a contract, they are bound by the terms thereof and the court will not allow to read into such a contract terms on which there is no agreement. In other words, the rights, duties and obligations of the parties must reasonably and lawfully be construed within the ambits of the said document – PER KUMAI BAYANG AKA’AHS, JSC
COURT SHOULD NOT GRANT ALTERNATIVE RELIEF WHERE THE MAIN RELIEF IS GRANTED
“It is trite that upon the grant of a principal relief, the court is not to consider or even look at the alternative relief – PER AKA’AHS, JSC
M.C CAROLINE MAERSK & 20RS V. NOKOY INVESTMENT LTD (2002) 6SCNJ 208 At 224
AJAO V. ADEMOLA (2005) 3NWLR (Pt 913) 636 At 340
AGIDIGBI V. AGIDIGBI (1996) 6 NWLR (Pt 454) 300
KOIKI V. MAGNUSSON (1999) 8 NWLR (Pt. 615) 492
G. K. F. INVESTMENT LTD V. NIGERIA TELECOMMUNICATION PLC (2009) 13 NWLR (Pt. 1164) 344
UNION BANK NIG. LTD V. UMEH & SONS LTD (1996) 1 NWLR (Pt. 426) 565.
ABIMBOLA VS ABATAN (2011) 9 NWLR (Ft 717) 66
IRIRI V. ERTHURHOBORA (1991) 2 NWLR (Pt. 173) 252, (1991) 3 SC NJ I
NIGERIAN BOTTLING COMPANY LTD V. CONSTANCE O. NGONADI (1985) 5 SC, 317
OGBECHIE V. ONOCHIE (1988) 1 NWLR (Pt. 70) 370 At 390
Military Gov, Of Lagos State 8 4 Ors, V. Adeyiga & 6 Ors. (2012) 2SC (Pt.I) P.68
ACN V. Lamido & 4 Ors. (2012) 2SC (Pt,Ii) P.163
ENANG VS ADU (1981) 11 – 12 SC 25
IGWEGO VS EZEUGO, (1992) 6 NWLR (Pt. 249) 561
OGUNBAYO VS STATE (2007) 8 NWLR (Pt 1035) 157 At 185 – 186
ADEWOLE VS DADI (2003) 4 NWLR (Ft 810) 3fi9) 619 At 378
PILLIPS VS E. O. C. & M.D. CO. LTD (7013) 1 NWLR (Pt, 1336) 6118 At 640
HIGH GRADE SERVICE LTD V. FIRST BANK OF NIGERIA LTD (1991) 1NWLR (Pt 167) 290
AGBI & ANOR V. OGBEH & ORS. (2006) 11NWLR (Pt 990) 65 At 116
AJIBADE V. PEDRO (1992) 5 NWLR (Pt 241) 257 At Page 269
IBAMA V. SHELL (2005) 10 SC. 74 PP 75- 76
Udogwu V. OKI (1990) 5NWLR CPT 153) 721 At 736
G. K. F. INVESTMENT (NIG) LTD V. NIGERIA TELECOMMUNICATIONS PLC (2009) 13NWLR (Pt 1164) 344 Pp 377-388
CHUKWUMA V. SHELL PETROLEUM (1993) 4 NWLR (Pt 289) 512 And 539
DA ROCHA V. HUSSEIN (1958) SCNLR 280
CHUKWUMA MAKWE V. NWUKOR & ANOR (2001) 14NWLR (Pt 733) 356
CHITTY ON CONTRACTS Vol. 1 Para. 19.002 P. 961
GEIDAM V. NEPA (2001) 2NWLR (Pt 696) 45
NWAUBANI V. GOLDEN GUINEA BREWERIES PLC. (1995) 6 NWLR (Pt 400) 184 At 207
CHUKWUMA V. SHELL PETROLEUM (1993) 4NWLR (Pt 289) 512 At 560.
IMOLOAME V. WAEC (1992) 9NWLR (Pt 265) 303 At 321
IHEKWOABA V. ACB LTD (1998) 10NWLR (Pt 871) 590 At 621
KOIKI V. MAGNUSSON (1999) 8NWLR (Pt 615) 492 At 514
BABA V. N. C. A. T. C. (1991) 5 NWLR (Pt 192) 388.
STATUTES REFERRED TO
CHIEF NYA EDIM EKONG VS. CHIEF ASUQUO E. OTOP & ORS
LEGALPEDIA ELECTRONIC CITATION: LERSC.127/2006
AREAS OF LAW:
DEFAMATION, EVIDENCE, TORT, PRACTICE AND PROCEDURE.
SUMMARY OF FACTS:
The appellant as plaintiff sued the defendants (now respondents) over a petition written by the 1st to 5th defendants in which he claimed that they falsely and maliciously published defamatory material concerning him. The petition was sparked off by a fracas at the Ediba swamp and marshlands between the indigenes of Akim clan on the one hand and those of the protesting clans. It was against this background that the appellant sued the respondents at the trial court claiming that he was libeled. In their statement of defence, the respondents denied liability and raised inter alia the defences of qualified privilege and fair comment. At the close of the case, the trial court entered judgment against the appellants and awardedN10, 000,000.00 against them as general damages. The defendants’ appeal against the judgment of the trial court was upheld by the Court of Appeal. . Dissatisfied with the judgment of the lower court, the Appellant has now appealed to the Supreme Court.
ISSUES FOR DETERMINATION:
Whether the plaintiff has proven that the allegation in exhibits D, F and H referred to him were published by the defendants to a third party.
Whether the lower court was right in holding that the allegation complained of was true and as such not Libelous of the plaintiff.
Whether the defences of qualified privilege and fair comment are available to the defendants in this case.
Whether the lower court was right in refusing to re-assess the lump sum awarded as general damages by the trial court for the three causes of action in this suit.
DEFAMATION: WHAT CONSTITUTES A DEFAMATORY STATEMENT:
“A statement is said to be defamatory where, if published of and concerning a person is calculated to lowering him in the estimation of right-thinking men or cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business. Every person has a right to the protection of his good name, reputation and the estimation which he stands in the society of his fellow citizens. Thus, whoever publishes anything injurious to that good name, or reputation commits a tort of libel, if written and slander, if oral. “PER JOHN INYANG OKORO JSC
DEFAMATION: HOW DETERMINED:
“It must be noted that the test in determining whether the words complained of are defamatory is always that of a reasonable man. That is to say/ given the environment and the circumstances in which the statements were made and published what would be the interpretation and understanding of a man of ordinary understanding.”PER JOHN INYANG OKORO JSC
DEFAMATION: WORDS THAT CONSTITUTES SAME:
There is need to emphasize that it is not every statement which is made and which annoys a person that is defamatory. It is also not every vulgar statement, mere abuse or insult which is actionable”. PER JOHN INYANG OKORO JSC
PROCEDURE: HOW THE COURT DETERMINES A DEFAMATORY STATEMENT:
Thus, whenever a statement is placed before a court to determine whether or not it is defamatory, the court must make findings of fact whether the words complained of are capable of bearing defamatory meaning and then ask and find answer to, the question whether the plaintiff was actually defamed by those words.”PER JOHN INYANG OKORO JSC
PROOF OF LIBEL:WHAT TO BE PROVED IN AN ACTION OF LIBEL
“In an action for libel, the plaintiff must prove the following:
1. That the defendant published in a permanent form a statement;
2. That the statement referred to the plaintiff
3. That the statement conveys defamatory meaning to those to whom it was published; and
4. That the statement was defamatory of the plaintiff in the
(a) It lowered him in the estimation of right thinking members of the society; or
(b) It exposed him to hatred, ridicule or contempt; or
(c) It injured his reputation in his office, trade or profession; or
(d) It injured his financial credit . PER JOHN INYANG OKORO JSC
LIBEL: STATEMENTS THAT MAY GIVE RISE TO A CAUSE OF ACTION:
But let me state that it is not every statement which causes damages to a plaintiff that gives rise to a cause of action. The statement, to found an action in libel must be false and defamatory of the plaintiff.” PER JOHN INYANG OKORO JSC
DEFAMATION: COURT TO CONSTRUE WORDS USED AS A WHOLE
It is trite in determining whether the words complained of are defamatory, the said words must be construed as a whole and not in isolation.”PER JOHN INYANG OKORO JSC
EVIDENCE: DUTY OF TRIAL COURT TO EVALUATE SAME
It is trite that all documents tendered before a court at the trial of a case is part and parcel of the evidence to be considered in the determination of issues before the court. Such documents usually referred to as exhibits are subject to scrutiny and to be tested for credibility and weight by the trial court.”PER JOHN INYANG OKORO JSC
EVIDENCE: WHEN AN APPELLATE COURT EVALUATES DOCUMENTS
Where the trial court fails to examine documents tendered before it, an appellate court is in as good position to evaluate such exhibits “PER JOHN INYANG OKORO JSC
LIBEL: WHAT CONSTITUTES A LIBELOUS STATEMENT
The law is that to found action in libel the alleged libelous statement must not only be false, but must also be defamatory of the plaintiff.” PER SULEIMAN GALADIMA JSC
DEFAMATION: EFFECT OF FALSEHOOD IN A CASE OF DEFAMATION
In an action for defamation if the statement or publication is found to be false, malice is automatically inferred, damages follow, and the hearing of the case comes to an end. The conclusion being that the publication was done for a clearly wrong motive.” PER BODE RHODES VIVOUR JSC
LIBEL: WHEN A PLEA OF FAIR COMMENT SUCCEEDS
A plea of fair comment succeeds as a defence if the facts relied on by the defendant are sufficient to justify the statement or publication that the plaintiff finds to be libelous. The facts must be the truth.” PER BODE RHODES VIVOUR JSC
DIN v. AFRICAN NEWS PAPER LIMITED (1990) 2NWLR (pt 139) 392
Akomolafe & anor. V. Guardian Press Ltd & 3 ors (2010) I SC (Ptl) p.58
Guardlan Newspaper Ltd & anor. V. Ajeh (2011) 4SC (Pt.ii) p.69
ONYEJIKE V ANYASOR (1992) l NWLR (pt. 218) 437
DIN V. AFRICAN NEWSPAPERS LTD (7990) 2 NWLR (pt. L39) 392
DUMBO v. IDUGHOE (1983) 1 SCNLR 29
AYENI V. DADA (1978) 3 SC. 35
BAMGBOYE V. LARENWAJU (1997) 22 NSCC (pt. 1) 501
SKETCH PIIBLISHING COMPANY LTD & ANOR. V. ALHAJI AZEES A. AJAGBEM0KEFERI (I989) 1 NWLR (pt. 700) 678
OFFOBOCHE V. OGOJA LOCAL GOVERMMENT (2001) FWLR( PT 68) 1051
OKOLO V. MIDWEST NEWSPAPER CORPORATION (1977) 1 SC 33
OKAFOR V IKEANYI,(1973) 3 – 4 S.C. 99
DULUMO V. SKETCH PUBLICATION COMPANY LTD (1972) 5 SC 308
ONU V AGBESE (1985) l NWLR (pt.4) 704
STATUTES MENTIONED: NIL
SIKIRU OLAIDE OKULEYE & ORS V ALHA]I RASHEED ADEOYE ADESANYA & ORS
LEGALPEDIA ELECTRONIC CITATION: LERSC.236/2006
AREAS OF LAW:
CUSTOMARY LAW,EVIDENCE,PRACTICE AND PROCEDURE.
SUMMARY OF FACTS:
The action arose when there was the urgent need to appoint an Olisa (traditional King)after the death of Olisa Henry Fawakan who was the Olisa . The appellants, case is that they are members of the Demoku/Aboki Ruling House and are entitled to present a candidate for the Olisa stool. They say that the 1st defendant is not a member of the said Ruling House and so not qualified to be nominated and appointed as the Olisa of Ijebu- Ode.
Dismissing the appellants’ claim the learned trial judge held that the 1st defendant descended from the Demoku branch and therefore is a member of the Demoku/Aboki Ruling House. He was qualified to be appointed and was validly nominated and appointed from the Ruling House. This declaration must be
refused and it therefore fails.
Dissatisfied with the iudgment of the learned trial judge, the appellants lodged an appeal. The court of Appeal found that the trial court was correct. This appeal is against that judgment.
ISSUES FOR DETERMINATION:
Whether the Court of Appeal was right in affirming the decision of the trial court preferring the evidence of traditional history given by DWI to that given by the plaintiff’s witnesses on the evolution of the Demoku/Aboki Ruling House of the Olisa Chieftaincy and whether the court is right in its conclusion that the 1st respondent is a member of the said Ruling House and therefore entitled to be nominated and appointed as the Olisa of Ijebu-Ode.
PLEADINGS: PARTIES TO BE BOUND BY SAME
lf pleadings are to be of any use the parties must be held bound by them.” PER BODE RHODES-VIVOUR JSC
PROCEDURE: PROOF OF TRADITIONAL HISTORY
A party who relies on Traditional History to assert that he is a member of the Demoku/Aboki Ruling House of the Olisa Chieftaincy must plead the names of his ancestors, and link them to the said Ruling House so as to show to the satisfaction of the court, a continuous chain of devolution. That is to say they must plead genealogy. After this is done there must be tried and tested evidence to establish the traditional history pleaded. Both sides pleaded genealogy, but that is not enough.” PER BODE RHODES-VIVOUR JSC
PLEADINGS: PLEADINGS TO BE PROVED BY ORAL EVIDENCE
The position of the law is that pleadings must be proved by oral evidence.” PER BODE RHODES-VIVOUR JSC
TRIAL: THE ESSENCE OF CROSS-EXAMINATION
Cross-examination is to test the credibility of testimony given in evidence in chief.” PER BODE RHODES-VIVOUR JSC
Re-examination is an opportunity for the witnesses to restore credibility to his testimony.”PER BODE RHODES-VIVOUR JSC
EVIDENCE: COURT TO ACT ON EVIDENCE WHEN RELIABLE
Evidence is reliable and compelling and must be acted on when it goes through cross-examination and remains reliable.” PER BODE RHODES-VIVOUR JSC
PROOF: WHAT APARTY WHO RELIES ON TRADITIONAL HISTORY MUST PROVE:
A party who relies on Traditional History to assert that he is a member of a Ruling House must plead the names of his ancestors and link them to the said Ruling House to disclose a continuous chain of devolution. He must plead genealogy. The pleadings must be supported by credible evidence to establish such traditional history.” PER BODE RHODES-VIVOUR JSC
APPEAL: WHEN THE SUPREME COURT CAN UPSET CONCURRENT FINDINGS OF COURTS BELOW
This court would not upset concurrent findings of the two courts below unless the findings are perverse, or there is a miscarriage of justice, or improper exercise of judicial discretion has been established in the courts below.” PER BODE RHODES-VIVOUR JSC
PRACTICE: CLOSING SPEECH NOT TO TAKE PLACE OF EVIDENCE:
The closing speech by counsel no matter how brilliant, and alluring never takes the place of legal proof required. There can be no substitute for evidence.” PER BODE RHODES-VIVOUR JSC
EVIDENCE: PARTIES TO LEAD EVIDENCE TO SUPPORT THEIR CASE
The appellants would have succeeded if they were able to lead credible evidence to support their pleadings on their genealogy. This case collapsed under cross examination. No matter how brilliant an address on their behalf may be the case can no longer by salvaged, and this is due to the fact that the only evidence from them ended up as very unreliable.” PER BODE RHODES-VIVOUR JSC
ACTION: NEED FOR PARTY TO BRING ACTION SAME TIMEOUSLY:
A delay of about six months raises grave doubts that the appellants are only trying to see if they have a chance. The courts are not set up for such antics.” PER BODE RHODES-VIVOUR JSC
Akande v. Adisa & anor (2012) 5SC (pt.i) p.1
Ohochukwu v. A.G. Rivers State & 2 Ors (2012) 2SC (pt.ii) p.103
R. Benkay Nig. Ltd v. Cadbury Nig. Ltd (2O12) 3SC (pt.iii) p.169
Mil. Gov. of Lagps Sate & 4 ors. V. Adeyiga & 6 Ors . (2012) 2SC (pt t) p.68
Arowolo v. Olowookere & 2ors. (2011) 11-12sc (pt ii) p 98
AG Ekiti state v. Daramola (2OO3)10 NWLR Pt 827 p.1O4
Chukwujekwu v. Olarere (1992) 2NWLR pt 221
Bello v.NBN (1992) 6NWLR pt 246 pg 206
Ishola v. Ajoboye ( 1998) 1NWLR pt 532 pg 74
Ojibah V Ojibah (1990)1 NWLR (pt 191) 296
Etowa Enang V Fidelis Ita Adu (1981)11- 12 SC 25
NwadikeV Ibekwe (1987)4 NWLR (pt 67)
EbolorV Osayande (1992) 7SCNJ 217
The Chiefs Law