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Law/Judiciary

How Issues For Determination Are Formulated

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HELLEN JOHNSON UDOH

(A.k.a. QUEEN IBUM OLUMBA OBU)

Vs.

THE REGISTERED TRUSTEES OF THE BROTHERHOOD OF THE CROSS AND STAR

COURT OF APPEAL  CALABAR DIVISION0

CA/C/124/2010

KUMAI BAYANG AKAAHS, J.C.A. (Presided and Read the Leading Judgement)

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

ISAIAH OLUFEMI AKEJU, J.C.A.

MONDAY, 6th JUNE, 2011

APPEAL – Determination of an appeal – On what based – whether on grounds of appeal issues for determination.

APPEAL – Issues for determination – Formulation of – By whom.

APPEAL – Issues for determination – formulation of – Purpose of.

APPEAL – Issues for determination – Where not related to groups of appeal – Effect – How treated.

ASSOCIATIONS – Incorporated trustees – Board of trustees thereof  where reconstituted – certificate issued in respect thereof – Whether tantamount to the body having two certificates.

Company Law – incorporated trustees – Board of Trustees thereof where reconstituted – Certificate issued in respect thereof whether tantamount to the body having two certificates.

Company Law – Power of Attorney – Donor of power of attorney – whether competent to grant same in respect of his personal assets and those of an incorporated body.

Incorporated trustees – Incorporated trustees – Board of trustees thereof – where reconstituted – Certificate issued in respect thereof – whether tantamount to the body having two certificates.

Power of Attorney – Donor of Power of Attorney – whether competent to grant same in respect of his personal assets and those of an incorporated body.

Practice And Procedure – Appeal – Determination of an appeal – On what based – whether on grounds of appeal or issues for determination.

Practice and Procedure – Appeal – Issues for determination– Formulation of – Purpose of.

Practice and Procedure – Appeal – issues for determination – Formualtion of – By whom.

Practice and Procedure – Issues for determination – where not related to grounds of Appeal – Effect – How treated.

Issues: Whether the Board of Trustees of the respondent was properly reconstituted. Whether the Power of Attorney, exhibit “b” was validly and competently made.

Facts: By an originating summons filed at the Federal High Court Calabar, the respondent in suit No: FHC/CA/CS/69/2008 instituted an action against the appellant.

By the action, the respondent challenged the appointment of the appellant as the Secretary General and Head of Administration in the Brotherhood of the Cross and Star worldwide by the founder of the movement and equally challenged the power of attorney by which the appellant was empowered to administer the assets and finances of the movement by the founder. The respondent in the suit then sought against the appellant some declaratory and injunctive reliefs.

On being served with the originating summons, a memorandum of conditional appearance was filed on behalf of the appellant.

On 14th January 2009, the appellant filed a notice of preliminary objection to the originating process. The grounds of the objection were stated as follows:

The Plaintiff lacks the locus standi or basis to constitute and institute this suit. The Plaintiff have (sic) shown no cause of action. The suit offends the rule of duplicity, multiplicity of suit and double compensation and constitute (sic) gross abuse of court process to the irritation of the defendant/appellant”.

The trial court dismissed the preliminary objection and granted the declaratory and injunctive reliefs sought by the respondent. The appellant was aggrieved and appealed to the Court of Appeal on six grounds of appeal out of which she also formulated six issues for the determination of the appeal. The appellant contended that certificate No. MIA/3027 issued on 6th August 2003 was invalid as it was issued in defiance of a court order of an Abuja High Court.

On its part, the respondent filed a notice of preliminary objection to the appellant’s brief on the ground that all the issues formulated therein were incompetent because they were not based on any ground (s) of appeal. The respondent contended that issues 1 and 2 were predicated on the particulars of error and not on the grounds of appeal and so were incompetent and further that issues 5 and 6 were fresh issues for which no leave was sought and obtained to canvass.

Held (Unanimously dismissing the appeal):

On Effect of reconstitution of board of trustees of an incorporated organization. When the board of trustees of an incorporated organization is reconstituted and a certificate issued to that effect that does not tantamount to the organization having two certificates. In the instant case, the Brotherhood of the Cross and Star did not have two certificates of incorporation. It was only the board of trustees that was re-constituted in the certificate issued on 6th August 2003. therefore, the one issued on 25th March 1964 was no longer valid. (P.238, paras. A-B).

On whether power of attorney could be granted to cover both personal assets and those of an incorporated body – By virtue of the provisions of sections 590 (1), 596 (1) (2), 601, 602 (1) (2) of Part C of the Companies and Allied Matters Act, Cap C20, Laws of the Federation of Nigeria 2004, the donor of the delegate or assign to the appellant administrative and management powers of functions in relation to the affairs, finances, assets and properties of community of persons known as the Brotherhood of the Cross and Star. (PP.238-239), paras. G-A)

On who formulates issues for determination – issues for determination may be those framed by either one or both of the parties. They may also comprise issues reframed by the court after consideration of those set out by the parties alongside the grounds of appeal filed. (P.233, para. D).

On Purpose of formulating issues for determination – The main purpose of formulating issues (s) for determination is to enable the parties to narrow the issues in controversy in the grounds of appeal in the interest of accuracy, clarity and brevity. (P.233, para.E).

On Effect where an issue is not related to any ground of appeal – if an issue is not covered by any ground of appeal, it is incompetent and will be struck out. (Management Enterprises V. Otutanya (1987) 2 NWLR (Pt. 55) 179; Oniah V. Onyia (1989) I NWLR (Pt.99) 514; Adelaja V. Fanoiki (1990) 2 NWLR (Pt.131) ; 137; Ogbuanyia V. Okudo (No.2) (1990) 4 NWLR (Pt. 146) 441; Sha V. Kwan (2000) 8 NWLR (Pt. 670) 685 referred to.) (P.233, paras. E-F).

On what issue for determination must be based – An issue must be based on the complaint in the ground and not on the particulars as the particulars cannot be argued as separate grounds of appeal. (Sterling Civil Engineering (Nig.) Ltd. V. Yahaya (2005) 11 NWLR (Pt.935) 181 referred to.) (P.234, para.B0.

Nigerian Cases Referred to in the Judgement: Adelaja V. Fanoiki (1990) 2 NWLR (Pt. 131) 137

Management Ent. V. Otutanya (1987) 2 NWLR (Pt.55) 179

Ogbuanyiya V. Okudo (No.2) (1990) 4 NWLR (Pt.146) 551

Oniah V. Onyia (1989) 1 NWLR (Pt. 99) 514

Sha V. Kwan (2000) 8 NWLR (Pt. 670) 685

Sterling Civil Engr. (Nig.) Ltd V. Yahaya (2005) 11 NWLR (Pt. 935) 181.

Nigerian statute Referred to in the Judgement:

Companies and Allied Matters Act, Cap. C. 20, Laws of the Federation of Nigeria, 2004, Ss.590(1), 596 (1) (2), 601, 602, 603 (1) (2).

Appeal. This was an appeal against the judgement of the High Court which granted the respondent’s claim and dismissed the appellant’s preliminary objection. The Court of Appeal, in a unanimous decision, dismissed he appeal.

History of the Case: Court of Appeal: Division of the Court of Appeal to which the appeal was brought: Court of Appeal, Calabar. Names of Justices that sat on the appeal: Kumai Bayang Akaahs, J.C.A. (Presided and Read the Leading judgement); Massoud Abdulrahman Oredola, J.C.A. Isaiah Olufemi Akeju, J.C.A. Appeal No. CA/C/124/2010, date of Judgement: Monday, 6th June, 2011, Names of council: Dr. Tony Ukam (with him, Egbe and Ugwochi Omereji) – for the Appellant. Dafe Diegbe – for the Respondent

High Court: Name of the High Court: Federal High Court, Calabar Suit No. FHC/CA/CS/69/2008

Counsel: Dr. Tony Ukam (with him, Egbe and Uwochi Omereji) – for the Appellant

Dafe Diegbe – for the Respondent

Akaahs, J.C.A. (Delivering the Leading Judgement): The Brotherhood of the Cross and Star was registered in March 1964 as a religious organization under the land (Perpetual Succession) Act Cap. 98 Laws of the Federation of Nigeria.

At the time of the registration there were four duly appointed trustees to wit, Leader Olumba Olumba Obu, Edet Eyoma Asuquo, Okon Ita and Mary Abiom. Three of the trustees have died. The only surviving trustee, Leader Olumba Olumba Obu is also the Spiritual Head of the Brotherhood of the Cross & Star (BCS). He appointed his eldest daughter, Helen Johnson Udoh (alias Queen Mother Ibum Olumba Obu) the defendant/appellant as Secretary General and Head of Administration of BCS. He also donated a power of attorney to her in respect of both his personal properties and those belonging to BCS. Mr. Roland O. Obu who is the second son did not like the powers conferred on his senior sister so he set about constituting another board of trustees for the organization.

The sister sharply resisted the move and filed an action before the High Court of the Federal Capital Territory in Suit No. FCT/HC/CV/508/2002 and obtained a restraining order against her brother from reconstituting the trustees. The suit was served on the Corporate Affairs Commission.

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Features

Judiciary As Last Hope Of The Common Man

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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

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Law/Judiciary

Elele OSPAC Seeks Govt’s Assistance

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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.

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Law/Judiciary

Legal Departments In LGAs And Justice Dispensation

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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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