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: Mohammed B
Lawal Garba, J.C.A (Presided; Uzo I. Ndukwe-Anyanwu, J.C.A. (Read theLeading Judgment);
Isaiah Olufemi Akeju, J.C.A
Appeal No: CA/C/182/2010
Date of Judgment: Thursday, 26th April, 2012 C
Names of Counsel: Ebere Uzoatu Esq-for the Appellant Dasil Akpan Esq-for the Respondent High Court
Name of the High Court: High Court Akwa IbomState,
UYO D Date of Judgment; Wednesday, 5th July, 2006 Counsel:
Ebere Uzoatu Esq-for the Appellant
Dasil Akpan Esq – for the Respondent ANYANWU; J.C.A. (Delivering the Leading Judgment):
The appellant and the respondent entered into a contract for the respondent to supply the appellant with motor spare parts. The respondent has her Head Office in Uyo whilst the appellant has His Head Office in Aba. The respondent supplied the appellant with G the spare part at a cost of N1.2m. The appellant received the parts and made a full payment of N1.2m vide a Zenith Bank cheque of 20th September, 2005. This cheque was returned unpaid for lack of funds. The respondent’s bank UBA also surcharged him with a sum of N210.00.
After several entreaties, the appellant paid instalmentally a total of N550,000.00 only and refused paying any further sums.
The respondent thereafter wrote the appellant through his counsel demanding the payment of N650,000.00 balance remaining from the transaction. Two letters were indeed written and dispatched to A the appellant by courier. On receipt of these letters, the appellant replied alleging that the parts delivered were inferior and thereafter refused to pay any further sums.
The respondent as plaintiff took out a writ under the undefended list procedure. The appellant as B defendant filed an intention to defend together with his affidavit. The trial Judge held that, the defendant/respondent did not disclose any defense on the merit and therefore set a date for hearing.
“The judgment be and is hereby entered in the sum defendant being the balance of the cost of Motor C Parts (Mack Clutch Assembly) supplied by the plaintiff to the defendant. That the judgment sum shall attract interest at the rate of 5% per annum from today’s date until it is fully liquidated. That cost of this action is D assessed at the sum of N10,000 in favour of the plaintiff against the defendant.”
Being dissatisfied, the defendant/appellant filed his notice and 3 grounds of appeal. The appellant filed his appellant’s brief on 14th December, 2010 and articulated 3 issues for determination as follows:
E “(i) Whether upon a calm view of the affidavits, reply and further affidavits of both the respondent and the appellant, the High Court below was right to have assumed jurisdiction to entertain the suit in the first place without first calling for oral evidence to determine the bona fide of the parties.
F (ii) Whether upon a calm view of the affidavit, counter-affidavit, reply to counter-affidavit and further affidavit of both the respondent and the appellant, the High Court below was right to have placed the suit under the undefended list instead of the general cause list in order to give both the appellant and the respondent the opportunity to be heard and be cross-examined to meet with the justice of the case.
(iii) Whether the judgment of the High Court below represents a dispassionate and full consideration of H the issues raised by the appellant before that court and fully made in the appellant’s brief vide affidavit, and further affidavit.”
Also filed is the appellant’s reply brief on 27th may, 2011.
The respondent also filed his brief on 02/02/2011 but deemed properly filed and served on 17th May, 2011. In his brief, A the A respondent articulated his own 3 issues namely:
“i. Whether the learned trial judge had jurisdiction to entertain the suit of the plaintiff?
ii. Whether the defendant/appellant had properly raised a case of forgery for consideration by the trial court? B
Iii Whether the learned trial judge was proper in awarding cost of N10,000.00 and interest of 5% per annum in favour of the plaintiff against the appellant?”
The appellant’s issues are very inelegant but what I can decipher to be the ral issues in this appeal are: C
(1) Whether the High Court Akwa Ibom State had jurisdiction to hear this suit.
(2) Whether the court was right to have placed this suit under the undefended list procedure with the allegation of forgery D.
(3) Whether the judgment and the reliefs granted are within the courts jurisdiction.
The appellant in his brief argued that the contract to supply him the Mack Truck Clutch Assembly Exh. A was concluded in E Aba, Abia State and as such the suit should have been instituted in Aba, Abia State. Also the defendant/appellant carries out business in Aba, Abia State.
In response the learned counsel for the respondent submitted that s. 251 of the 1999 Constitution of the Federal Republic of F Nigeria gave the court jurisdiction to hear and determine suits that occur within their territorial jurisdiction. The respondent’s counsel submitted that the respondent’s claim is for the recovery of a liquidated sum of N650,000.00 being the outstanding balance for the cost of goods supplied by the respondent to the appellant in G 2005.
Learned counsel to the respondent referred the court to paragraphs 6,7 and 8 of the respondent’s affidavit as follows:
“6 That sometime in September 2005 the defendant … approached the plaintiff’s chief executive…. H at the plaintiff’s head office at No. 203 Ikot Ekpene Road, Uyo and requested the plaintiff to supply to the defendant Mack Truck Clutch Assembly (motor parts)…
A 7. That the defendant inspected the said motor part and having being satisfied withits quality and condition agreed to purchase same at a total cost of N1.200,000.00.
8. That the plaintiff supplied the said motor part to the B defendant who took delivery in good condition and transported same to her office at Aba.
From the above the trial Judge held as follows:
“The defendant insists that Abia State is the proper jurisdiction/venue. “The law is that it is the plaintiff’s claim that determines jurisdiction. In that respect, it is clear from paragraphs 6 and 7 of the affidavit in support of the Motion Exparte that the plaintiff says the contract, the subject matter of this suit was concluded, executed and performed in Uyo, Akwa Ibom State.
That being so, the proper jurisdiction is Uyo, Akwa Ibom State.”
D Counsel referred the court to O R 3 Akwa Ibom State High Court (CIVIL Procedure) Rules 1980 which provides that:
“Suits arising from breach of contract shall be commenced and determined in the judicial Division in which the contract was entered into or ought to have been performed or in which the defendant resides or carries on business.”
Counsel submits that under s. 22 (1) of the High Court Law, Akwa Ibom State that the suit is no longer a breach of contract perse but F one for recovery of a debt. See Rivers State Govt of Nig. V. Specialist Konsult (2005) 21 NSCOR page 612, (2005) 7 NWLR (Pt. 923) 145
Counsel referred the court to the distinction between judicial division and geographical venue enunciated by Nzeako J.C.A. in Intrnational Nigerbuild construction Co Ltd v. Giwa (2003) 13 G NWLR (Pt.836) page 69 at pages 98-99, paras H-A.
It was held:
“The test of where the defendants reside, applied by counsel in his argument to show that jurisdiction lies in the Lagos High Court, applies when the matter in controversy is the issue of judicial division to bring a suit. This is a different issue from the wider issue of territorials or geographical venue or jurisdiction which is their bone of contention under this issue in this appeal. There is distinction between jurisdiction as it relates to the territorial or geographical jurisdiction of A a court and jurisdiction in relation to the jurisdiction as it relates to the jurisdiction in relation to the judicial division within which to commence an action. the distinction between venue, as aspect of jurisdiction whcih could be administrative or geographical, in B which a suit may be herd, is often provided in the rules of court of the various states of the Federation.
But when it comes to territorial jurisdiction, whcih is whether a suit ought to have been brough in one state but brought in another, the criteria is different. In such C a case, the court has no jurisdiction and it cannot be conferred by agreement or consent of the parties”
I.K. Martins (Nig) Ltd v. University Press Ltd. (1992) 1 NWLR (Pt. 217) pg. 322 it was held that “where no place for payment is specified by a contract, it is the duty of the debtor to seek the D creditor in order to pay him at his place of business or residence.
see also the cases of National Bank Ltd. v. Shoyoye (1977) 5 SC 181; Abia State Transport Corporation v. Quorum Consortium Ltd.
(2004) 1 NWLR (Pt. 855) pg. 601.
Counsel submitted finally that the contract was entered into, performed and or executed to completion at Uyo, Akwa Ibom State.
Counsel urges the court to hold that Akwa Ibom State High Court has jurisdiction to entertain this suit.
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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