In the Court of Appeal,
Holden at Lagos,
July 9, 2010,
Before their Lordships:
Raphael Chikwe Agbo, Justice,
Court of Appeal;
Adzira Gana Mshelia, Justice, Court
Adamu Jaura Justice, Court
JVC Professional Products (U.K) Ltd
Mr. Michael Famuyide,
Fadaler Enterprises Nigeria Limited,
Nigerian Television Authority (respondents).
The learned trial judge examined the affidavit in support of the motion ex parte and conceded that applicant now respondent did not comply with the provisions of Order 8 Rule 4 under consideration. The learned trial judge, however, interpreted that the phrase “or other evidence” referred to in Order 8 Rule 4 reproduced (supra) to include the writ of summons and statement of claim already before the plaintiff/respondent has a good cause of action. The learned trial judge, therefore, refused to set aside the earlier order made granting leave to the respondent to serve writ of summons out of jurisdiction.
The question is whether the learned trial judge exercised the discretion on erroneous principles. A grant or refusal of an application is purely within the province of the discretionary powers of the trial court. Such discretion must at all times, however, be exercised not only judicially but also judiciously on sufficient materials. The law is clear that discretion properly exercised by a trial or lower court will not be lightly interfered with by an appellate court even if the appellate court was of the view that it might have exercised the direction differently. See: Williams v. Williams (1987) 2 NWLR (pt 54) 66. It is only when a trial judge or a lower court exercised discretion upon a worn principle or mistake of law or under a misapprehension of the facts or took into account irrelevant matters thereby giving rise to injustice, that an appellate court will not abdicate its duty to interfere with the exercise of that discretion in order to correct or prevent the injustice. See: Solanke v. Ajibola (1968) NSCC (Vol. 7) 231 or 235.
Having regard to the facts and circumstances of this case, I am of the firm view that the approach taken by the learned trial judge is not erroneous and cannot also be faulted. As at the time the respondent brought the application seeking for leave to serve writ out of jurisdiction, all contained in the case file were the writ of summons dated November18, 2002. The learned trial judge found that the affidavit in support of the exparte application did not disclose sufficient materials, enable the court decide whether. prima facie cause of action against the defendant has been shown so to call upon the defendant appellant to come and answer to the claim.
In the alternative, the trial judge invoked the second arm of the pro visions of order 8 Rules 4, that is “or other evidence”, and looked at the writ of summons and statement of claim thereby arriving at the conclusion that a good arguable case has been disclosed against the defendant/appellant. It was for this reasons that the trial court granted leave to the respondent to serve the writ of summons outside Nigeria. The facts or materials available disclosed good arguable case against the defendant/appellant. This was precisely what the learned trial judge did.
Appellant’s counsel correctly stated the provision of the law relying on the authorities cited that pleadings are not evidence. However, in determining whether a cause of action is disclosed, the court must limit itself to the plaintiffs pleadings. A cause of action is every fact, which is material to be proved to entitle the plaintiff to succeed, or all those things necessary to give a right to relief in law or equity.
Having regard to the reason given by the trial judge as to why he refused to set aside the order made, it cannot be said that the trial judge did not take into consideration the special nature of the jurisdiction to allow service of court processes on foreign defendants. As earlier stated, the requirement was satisfied because the statement of claim disclosed good arguable case against the defendant/appellant. I am satisfied that the learned trial judge took into consideration all relevant matters before refusing to set aside the order granting leave to serve the writ of summons and statement of claim outside jurisdiction. I hold that the learned trial judge exercised his discretion judicially and judiciously having regard to the circumstances of the case.
There is no basis for this court to interfere with the lower court’s exercise of discretion. I will accordingly resolve issue one in favour of the respondent. Issue one fails and is dismissed.
The contention of appellant’s counsel was that the finding of the learned trial judge that there was no misrepresentation because the ‘acts said to be misrepresented were not contained in an affidavit made that the allegation of misrepresentation had not been established re erroneous. It was argued that he trial judge erred in law when held that the plaintiff had not misrepresented any facts to the court in its ex-parte application for leave on the ground that “the averments in the affidavit in support of the application for leave do not contain any depositions in respect of the plaintiffs’ cause of action. It can, therefore, not be said that there was a misrepresentation or suppression of facts in the said affidavit.
Respondents’ counsel on the other hand submitted that the various alleged misrepresentations cannot be resolved at this stage, as doing so would be tantamount to venturing into the substantive suit at the interlocutory stage. Learned counsel referred to paragraphs 5 and 11 of the affidavit in support of the appellant’s motion dated September 12, 2003. Learned counsel argued that since appellant has disputed the facts averred to by plaintiff/respondent in the statement of claim, the conflicts could represented any facts to the court in its exparte application for leave on the ground that “the averments in the affidavit in support of the application for leave do not contain any depositions in respect of the plaintiffs’ cause of action. It can, therefore, not be said that there was a misrepresentation or suppression of facts in the said affidavit.
Respondents’ counsel on the other hand submitted that the various alleged misrepresentations cannot be resolved at this stage, as doing so would be tantamount to venturing into the substantive suit at the interlocutory stage. Learned counsel referred to paragraphs 5 and 11 of the affidavit in support of the appellant’s motion dated September 12, 2003. Learned counsel argued that since appellant has disputed the facts averred to by plaintiff respondent in the statement of claim, the conflicts could only be resolved at the trial stage.
As earlier stated under issue one, the trial judge relied on the statement of claim to determination whether there was good arguable case against the appellant to entitle the court grant the leave to serve the writ of summons outside jurisdiction, because the affidavit in support of the motion exparte did not contain sufficient material. All the facts relating to the contract agreement are contained in the statement of claim. Having regard to the nature of misrepresentations raised by the appellant if same are resolved at this stage, it would greatly affect substantive suit. Whether respondents would succeed in proving their claim against the appellant is not relevant at this stage. Courts are enjoined not to resolve issue meant for substantive suit at interlocutory stage.
I am mindful of the fact that an order granting leave to serve writ of summons out of jurisdiction can be set aside on ground of misrepresentation of facts in appropriate cases. See Order 9 rule 11 of the High Court of Lagos State (Civil Procedure) Rules, 1994. In the instant case, the alleged misrepresentations (if any) cannot be easily resolved at this stage without interfering with the substantive matter.
Every case must, therefore, be treated according to its given set of facts and circumstances. It is my considered view that the learned trial judge rightly declined to set aside the order made granting the respondent leave to serve the writ of summons outside Nigeria. In the circumstance, I hold that issue number two fails and is similarly dismissed.
In the final analysis, this appeal in my humble view is devoid of merit. Appeal dismissed. I affirm the decision of the trial court dated March 31, 2004. Parties to bear own costs.
Culled from The Guardian.
Judiciary As Last Hope Of The Common Man
The judiciary is said to be the last hope of the common man. If there is no judiciary or where the judiciary is shut, the hope of the common man is dashed. If the saying is anything to go by, one is shocked that for nearly two months, the last bastion of hope of the masses was shut by striking workers, yet it has been business as usual. Both the government and the workers union are not bothered about the ugly situation.
Judiciary Staff Union of Nigeria (JUSUN) is on indefinite strike nationwide to protest the inability of both the federal and some state governments to grant financial autonomy to the judiciary. The independence of the judiciary is contained in Nigeria’s grundnorm, the Constitution of the Federal Republic of Nigeria 1999 as amended. Just as the positions of President and Governors of states are creations of the constitution, so also is the independence of the judiciary.
The truth of the matter is that JUSUN does not need to go on strike before the two tiers of government can implement the financial autonomy of the judiciary. It is a constitutional provision and political office holders swore to implement the spirit and letters of the Constitution.
Indeed, the judiciary and legislature are supposed to be independent as provided in the Constitution. When the three arms of government are independent, separation of powers is assured. This is because it will prevent fusion of powers which leads to tyranny. Fusion of powers smacks of dictatorship. In many states of the federation, governors have become absolute rulers.
It is becoming common that some state governors find it easy to shut the judiciary in order to have their way when unfavourable conditions tend to persist in their states.
For eight months, Rt. Hon. ChibuikeAmaechi shut the judiciary following an indefinite strike embarked upon by JUSUN. The closure of the courts caused a lot of hardship for both practising lawyers and litigants. Some lawyers who could not make ends meet died as a result. Litigants suffered lack of access to justice.
The indefinite strike embarked upon by JUSUN to demand financial autonomy is commendable because of its insistence on propriety obviously intended to prevent state chief executives from ruling on their whims and caprices.
But pathetically, many governors are unwilling to allow an independent judiciary that they will no longer hoodwink or coerce to do their biddings. The delay in implementing the autonomy is predicated on the fact that most of our leaders are bigger than the country’s institutions.
Hence, we have strong leaders and weak institutions. At the federal and state levels, the suppression of the country’s main institution has aided tyranny.
Consequently, the governors and even the president can afford to do anything unconstitutional and go scot-free with it.
The national and some state Houses of Assembly have become rubber stamps ready for the masters’ use anytime. Therefore, one hardly finds meaningful debates in the legislature except in states that have strong opposition. In the states, where all the members of the legislature come from the ruling party, meaningful debate is moonshine.
The fashionable term is “Carry go”. The term “Carry go” literally means treat as requested. There is obviously no alteration or modification. The application of “Carry go” has continued to worsen the state of our democracy. The governors or the president can afford to do anything he likes without any compunction. Consequently, the masses and indeed the electorate do not have a voice anymore. The voices of the electorate are lost in the legislators’ inefficiency and cowardice.
The country is worse for it. What we have in most states of the skewed Nigerian federation are monarchs, who brook no challenges. They rule howsoever they like, for themselves and their various families. They have goons all over their states whose duty it is to defend them. If not for the state of our nation where rust is ripeness, do the President and Governors have no choice in implementing the constitution?
Many state chief executives implement and execute projects that would facilitate corruption yet any project that would better the lot of the people is either treated with levity or left undone. The question that readily comes to the mind is: whose interest are the leaders working for? Is it for themselves or the populace?
By: Chidi Enyie
Elele OSPAC Seeks Govt’s Assistance
Elele Security Planning and Advisory Committee has appealed to the state government to come to their aid.
The local vigilante often called ESPAC said the call became imperative following its key role in sustaining peace in the communities.
In a chat with newsmen in his office yesterday, the commander, Daniel Wosa disclosed the unbearable situation his men faced on daily basis without anything to take home.
Wosa said some of his men had threatened to quit the voluntary job since nobody appreciated them.
The commander expressed regret that ESPAC members had volunteered to sacrifice their lives for the society yet nobody appreciated them.
“Some struggle to feed their families. It is unfair …”
“We appeal to governor Nyesom Wike to consider us because of the key role we have been playing in Rivers state.
“Today communities,road users and business men can attest to our untiring effort since we came on board.”
“No more kidnapping, killing and other vices which threatened the peace of the land,” he noted.
“Boys under me who volunteered to sacrifice for the wellbeing of others need recognition,” he stated.
Wosa said there was no security challenge the group could not contend if only government could give them support.
He specifically commended the executive Chairman, Ikwerre Local Government Area, Hon Samuel Nwanosike for his assistance and said if not Ikwerre Council boss the situation would have degenerated.
Wosa said some time now he had been using his hard-earned money to appease his men.
Wosa said it was on record Elele OSPAC had never been found wanting in the cause of its duty and explained that the group worked in collaboration with the conventional police to achieve desired objective
Meanwhile,a youth leader in Ikwerre Local Government, Comrade Eleonu Chukwuka says Hon Samuel Nwanosike’ s achievement in security has given him the second term ticket.
Comrd Chukwuka said Ikwerre Council Boss had written his name in gold by surmounting the security situation in Ikwerre.
The youth leader while chatting with newsmen said the introduction of OSPAC by Nwanosike led to other infrastructural and human capital development and pointed out that peace was key to development.
It is a thing of joy that farmers can return to farm. Normal life has returned.
It is the greatest achievement which snowballed to what we are seeing today in Ikwerre.
Ikwerre people are proud of him and will back till eternity.
Legal Departments In LGAs And Justice Dispensation
Lawyers at the Local Government (LG) Legal Department would supervise and undertake prosecu-torial activities in magistrate courts, and represent their respective local governments in area courts, Magistrates Courts, High Courts, among others.
They would be on hand to render necessary legal advisory services to their local governments.
They could be in charge of advising their LG Chairmen on legal issues relating to issuance of the Customary Right of Occupancy at the LG level, thereby playing roles similar to those being played by the ministries of Justice and Lands at the State level in the Statutory Right of Occupancy. Section 6 of the Land Use Act, 1978 provides: “It shall be lawful for a Local Government in respect of land not in an urban area. (a) to grant customary rights of occupancy to any person or organi-sation for the use of land in the Local Government areas for agricultural, residential and other purposes. (b) to grant customary right of occupancy to any person or organisation for the use of land for grazing purposes and such other purposes ancillary to agricultural purposes as may be customary in the local government area concerned”.
They could take steps to set up (citizens) ADR/Mediation centres at the LG level, as well as render other legal aid/advisory services aimed at helping the local community or to make justice more affordable and easily accessible by local inhabitants.
Establishing a legal department at the LG level will tremendously reduce the pressure of having all lawyers striving to settle down only in major cities, such as Lagos, Port Harcourt, Kano, Onitsha, Aba, Ibadan, Jos, Abuja, Enugu City, Uyo, Warri, Calabar, Kaduna City, etc; lawyers employed by the various local governments would have to relocate to the local council headquarters where they’d live and operate from, with their families.
Establishing a legal department at the LG Level would bring lawyers and legal services closer to the people at the grass-root; residents of local communities will no longer need/have to travel to the major cities in order to get the services of lawyers to draft their various agreements, contracts, or to render other legal services.
Lawyers in the LG Legal Departments will, apart from attending to the legal needs of the local government councils, assist in prosecution of some cases, especially in courts located within the local council areas. This will minimise involvement of law prosecutors in criminal prosecution. Lay police officers‘ and non-lawyers’ continued involvement in criminal prosecution in Nigeria, is partly responsible for the worsening cases of awaiting trial cases and prison congestion in the country.
This is because of their professional limitations in this area, so many of the so-called police prosecutors are not able to match or withstand the legal firework of professionally qualified lawyers who act as defence counsel in courts during criminal prosecutions; these lay police officers and non-lawyers hardly understand the intricacies of formal courtroom proceedings and trial procedure, and more often than not, have very little or no preparation prior to their court appearances.
It may therefore be seen that the clamour for extrication of lay policemen from criminal prosecution is primarily not targeted at creating more jobs for lawyers, but rather at leaving criminal prosecution in the hands of qualified personnel (lawyers) who alone understand the law and are well able to match the expertise of defence counsel in court, in order to ensure that justice was dispensed in good time and more effectively.
Gradually, from among these lawyers, who are LG legal officers, some magistrates or even judges are appointed, just as it is done at the state level.
Establishing a legal department at the LG level would provide huge job/employment opportunities for lawyers in Nigeria.
Imagine, if all the 774 local government areas in Nigeria could create and have legal departments, and each local government (depending on capacity) employs an average of 10-20 lawyers in its legal department, we’d have at least 7,740 to 15,480 lawyers or much more immediately gainfully employed at the local government level.
Establishing a legal department at the LG level would redress the existing inequity and unfairness at the local government level. The following departments already exist in all the LGAs in Nigeria: Education, Health, Agriculture, Finance, Information, and Works. It’s gross marginalisation against the legal profession that there’s not yet a legal department in all LGAs in Nigeria. This obvious anomaly, which has wreaked huge havoc, considering the undeniable importance of law and lawyers in society, needs to be be urgently corrected to provide the needed balance that would make lawyers more relevant to society and move society forward.
B) Stakeholders To Make This All-Important Project A Reality:
The Nigerian Bar Association (NBA) at both the National and Branch levels: NBA has responsibility to set the ball rolling. Indeed, if the NBA does nothing, nothing happens.
The Attorney-General of the Federation of Nigeria, considering that he is the Chief Law officer of the Federation.
Attorneys-General of the various states in Nigeria.
The Chief Justice of Nigeria.
The President of the Court of Appeal.
The Chief Judge of the Federal High Court and the President of the National Industrial Court of Nigeria.
The Chief Judge of the Federal capital High Court and the High Courts of the various States in Nigeria.
The House of Assembly of the various States in Nigeria.
The Nigerian Governors‘ Forum and the Governors of the various States in Nigeria.
The Body of Senior Advocates of Nigeria (BOSAN), the Egbe Amofin Lawyers, the Body of Benchers (BOB), the Eastern Bar Forum (EBF), the Muslim Lawyers’ Association of Nigeria (MULAN), the Mid-West Bar Forum (MBF), the Christian Lawyers’Association of Nigeria (CLASFON), the National Association of Catholic Lawyers (NACL), etc.
C) Conclusion: What Does This Take As A First Step?
It starts with an amendment to the Local Government Law of each State, to create a legal department in the LGAs in the state.
This is long overdue. Provision of necessary logistics and support infrastructure would then follow.
This writer believes that there would be business enough for lawyers in Nigeria, only if the lawyers could, by themselves and working hand in hand with their Bar Associations, put their acts together and stand up to do something concrete and constructive for themselves and their profession.
Time for action is now; there is no time to wait or waste, because time will never be right. Barack Obama said, “the change we desire will not come if we wait for some other person or some other time. We are the ones we’ve been waiting for. We are the change that we seek. A stitch in time saves nine.”
It would be recalled that lawyers under the employment of Local Government Authorities in Rivers state, penultimate week, demonstrated for full recognition and salary increment to match that of their counterparts in the employment of the State Government, while the Authorities are against such on the ground that they (lawyers), are first and foremost, not employed as lawyers by the authorities, thus, may be making an unlawful request.
Udemezue is of the Civil Litigation Department with the Nigeria Law School.
By: Sylvester Udemezue with reports from King Onunwor
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