The purported amendment of the record of appeal/ proceeding as claimed by the appellants has no sanction of the court either by granting or refusing the amendment and so it is a nonstarter. Meaning that the mere filing of an affidavit challenging the instant record/ proceeding of 26/4/2010 without more cannot by that fact alone (ie. without more) effectively and effectually amend the record of appeal. And I so hold.
What are the consequences for so holding as per the foregoing? They are far reaching. I have already set out the grounds of appeal and the four issues particularly issues 1 and 2 raised there from for determination in this matter as above. The appellants have made no bones as to the common basis of the said four issues and even the 10 grounds of appeal in this matter. The four issues so also grounds 3, 4, 6, 8, 9 and 10 of the grounds of appeal by the nature of the questions they have raised respectively have to stand or fall based on whether or not the record of appeal/proceeding of 26/4/2010 has been duly amended by the affidavit filed by the appellants challenging the record. These issues and the grounds as argued by the appellants have been premised on the unfounded basis that the record/proceeding of 26/4/2010 has been so amended hence the complaint as per issue one that the lower court has subtracted or read out of the record, “what is there” and on issue two of not having taken judicial notice of the judgments of this court cited in ground one. That the appellants have laboured under a misconception and misapprehension as to the amendment of the record of appeal/ proceeding of 26/4/2010 is borne out from their submission as per paragraph 4.05 page 13 of their brief and I quote:
“The lower court… was in grave error when it stated that no case was cited or referred to in the record of appeal. The court did not advert its mind to the affidavit challenging the record of court dated 26/4/2010 on the omission of the cited authorities … we submit that the conclusion of the Court of Appeal … that the cases were not cited or referred to in the proceedings of the trial Court for 26/4/2010 is not borne out of the record of appeal at pages 250, 251, 252, 253, 257,258,259260 -263A of the Record of Appeal The conclusion of the Court of Appeal that no case was cited or referred to is not borne out of the record …”
Their misconception with respect is profound. It is settled law that courts, the parties and their counsel are bound by the record of appeal. And so no court has the grounds 3,4,6,8,9 and10 also have beraised on the basis that the said record of appeal/ proceeding of 26/4/2010 has been duly amended by the affidavit challenging the record of appeal to include the proceedings of 26/4/2010. This is not so as per my findings above.
In the result having pulled the rug as it were from underneath the appellants submissions as to the competency with regard to the four issues raised for resolution here and the said grounds above mentioned they become baseless and utterly without foundation and therefore incompetent and should be struck out. It is trite that you cannot stand something on nothing and expect it to stand and in the same way issues for determination must spring from grounds of appeal which in turn must have arisen from the court’s decision.
Finally, it has been argued in this matter that this appeal has been struck out by the lower court for failing to seek and obtain leave of court before filing the appeal as prescribed by Section 242 of the 1999 Constitution as amended having raised grounds of mixed law and facts therein. It is also common ground that the trial Court’s directive to deal first with the preliminary objections amounts to an interlocutory order based on the exercise of its discretion. It is trite law that an appeal against an interlocutory decision other than on grounds of law requires leave of court. The provisions of Sections 241(1) and 242 (supra) have clearly set out when appeals will be presented as of right or with leave respectively of the Federal High Court or State High Court or the Court 01 Appeal as the case may be. And so it is settled law that right to appeal is statutory. Whether the instant exercise by the appellants of their right to appeal is properly founded in law has been challenged by the respondents based on the nature of the instant 3 grounds raised against the trial Court’s decision in this matter. This has formed the basis 01 grounds 1, 2 and 5 to this court.
The question to be resolved in this respect is whether or not the 3 (three) grounds of appeal raised before the lower court require leave of court to be competent having been raised against the trial Court’s decision in exercise of its discretionary power. This depends on whether or not the grounds raised are questions of law. The point therefore must be made that the distinction between a ground of law and a ground of fact or mixed law and facts though very thin, is fundamental to resolving the instant question, which is difficult and blurred to define and apply. See: Ugboaja v. Akinloye Somemimo (2008) 16 NWLR (pt.1113) 278 at 293-294. See Nwadike v. Ibekwe (1987) 4 NWLR (pt.67) 718. To determine whether a ground of appeal is one of law or fact requires examining the main ground in the context of its particulars so as to determine the nature of the question the ground has raised or complaining about The appropriate approach to determining the issue put Simply m the circumstances is whether the 3 grounds irrespective of how couched have challenged i.e. questioned the discretionary exercise of the power of the trial Court to hear the preliminary objections of the 3 sets of defendants/respondents first before dealing with substantive matter on the merits or to deal with the originating summons and the preliminary objections together. See Nwadike v. Ibekwe (1987) 4 NWLR (pt.67) 718, Obi v. Owolabi (1990) 5 NWLR (pt.153) 702, Olaosebikan v. Williams (1996) 5 NWLR (pt.449) 437 at 442. The trial Court opted to hear the preliminary objections first in exercise of its discretionary power. It is beyond argument that the appellants have questioned the trial Court s discretion in making the interlocutory order in other words, thus questioning the evaluation of the facts. See State v. Bassey (1994) 9 NWLR (Pt.367) 130 at 13D. I find that by examining the said 3 grounds of appeal will lead to further examining of the facts and circumstances on which the trial Court’s exercise of its discretion in the matter of the directive it has given is premised and I have no doubt that the 3 grounds are a product of exercise of discretion and so a composite of mixed law and facts.
Again, even then reading the main grounds of the 3 grounds of appeal alongside their particulars shows that they are complaining of the trial Court’s exercise of its discretionary power. And I so find. This question has been settled by the pronouncement of this court in F.B.N. Ltd. v. Abraharr (2008) 18 NWLR (Pt.1118) 172 at 189A-B wherein it held that and I quote:
“A ground of appeal questioning the exercise of discretion by a rower court is not a ground of law but a ground of mixed law and facts.”
From my reasoning above I am in entire agreement with the finding in the above cited case. So that the 3 grounds of appeal in this matter having raised a question mixed law and facts require leave of court, the appellants have filed this appeal with· out first having obtained leave of court and they will take the consequences. It is trite that without leave of court having been firs1 sought and obtained before filing the appear, the appeal will be incompetent and liable to be struck out pursuant to Section 233(3) of the 1999 Constitution and I so hold. Having so concluded I see no justification examining any other issues raised here as this finding goes to the root of the appeal vis-a-vis the notice of appeal not having any competent ground on which to sustain it and the appeal therefore being incompetent it is hereby struck out.
For all the reasons I have given above, I find no merit in this appeal and it stands dismissed in its entirety. 1 hereby affirm the decision of the local court. I make no order as to costs.
The respondents/cross-appellants in the cross appeal are the 12th – 14th respondents in the main appeal. They have filed a Notice of Appeal dated 3/2/2011 and have filed their brief of argument in the cross appeal and from it has distilled a sole issue for determination, viz:
“ … whether the Ruling by way of a directive of the learned trial judge on the 26th April 2010 amounted to a decision for which the appellants can appeal.”
Arguing the sole issue raised in this matter they have submitted that the directive of 26/4/2010 as per the interlocutory order made by the trial Court on 26/4/2010 has done no more than to have considered the priority of the pending applications before It and so not a decision within the meaning as contemplated in Sections 241, 242, 243 and 318 of the 1999 Constitution as amended. As a guide to the court to resolving this matter they have cited United Ventures Ltd. V. F.C.M.B. Ltd. (1998) 4 NWLR (Pt.547) 596 at 555 paragraphs B-F and 564 per Musdapher ICA (as he then was). Okeke v. Uzo Chukwuma Montors (2001) 3 NWLR (Pt. 700) 338 at 345 -355 C/A, 11 NWLR (Pt. 724) 341 at 348 paragraphs G-H, Chidozie v. Mosowan (1999) 1 NWLR (Pt.556) at 328 paragraphs C-D, F-H. The court is urged to resolve this issue in favour of the respondents/cross appellants.
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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