although a counter-claim is a distinct action, and a separate decision would be given in respect of the counter-claim, it must be directly related to the principal claim and not outside and independent of the subject-matter of the principal claim. See Oyegbola vs. Esso West Africa (1966) 1 all NLR 170.
Awosanya vs. Federal Ministry of Environment, Housing & Urban Development and ORS.(2021) LCN/14971(ca).
Issue: counter-claim-Whether a court with subject-matter jurisdiction to hear a main claim can lack same to hear a counter-claim(Issue is mine)
“I think the Appellant’s Counsel was only grandstanding, when he tried to fault the jurisdiction of the trial Court, on appeal, to entertain the counter-claim, on the allegation that the 4th Respondent was seeking “declaration of title to land and possession”, which is outside the jurisdiction of the Federal High Court. Appellant did not raise any such issue of lack of absence of jurisdiction at the trial Court, because, I believe, he knew the truth that the real issue in the case was the sale of the property to 4th Respondent by the 1st to 3rd Respondents, rather than to him, Appellant!
The case was never one for title to land, despite the inelegant couching of the reliefs by the 4th defendant at the trial Court. It could not have been issue of title and possession to land, because both Appellant and the 4th Respondent had acknowledged the Government (represented by 1st to 3rd Respondents) as the owner of property, No. 9 Mekunwen Road, Ikoyi, Lagos, and that the same was sold to the 4th Respondent, even when he (Appellant) was still on the property and wanted same to be sold to him (Appellant)! See the reliefs 2, 3, 4, 5 and 6 by the Appellant in this case (earlier produced).
And so all the legal gymnastics/arguments and cases cited as to whether the trial Court (Federal High Court) had jurisdiction to hear and entertain a case seeking title to land and possession of land, were, in my opinion, completely unnecessary, and a distraction in this case, as the case of the 4th Respondent, was obviously, a counter-claim, to affirm the sale of the property to him by the 1st to 3rd Respondent and for the consequential orders for Appellant to vacate the property!
It is however conceded, that the couching of the reliefs sought by 4th Defendant’s Counsel in the counter-claim were quite inelegant, talking about declaration that 4th Respondent was the lawful owner and title holder of the property; and for possession of the said piece or parcel of land.”
I do not think the Appellant or any of the parties failed to understand the real issues before the trial Court, by the two sides, for determination, as earlier stated in this judgment, and so none can claim to have been misled by the said in-elegance in the drafting and presenting the claims (reliefs) in the counter-claim, nor by the findings and decision of the trial Court thereon. Courts are expected to pursue substantial justice, not technicalities.
It is also quite glaring, that the substance of the two cases questioned or sought, to justify the power of the 1st to 3rd Respondents to deal with the property, No. 9 Mekunwen Road, Ikoyi, Lagos, by selling same to 4th Respondent, and how the sale was made. While Appellant questioned the sale, the 4th Respondent justified it and sought an order for Appellant to vacate the property, and because the 1st to 3rd Respondents are Federal Government Agencies, which controlled and administered the property by virtue of Section 49 of the Land Use Act, 1978. The Section concedes to the Federal Government or its agency to hold title to land. The provision says:
“49(1) Nothing in this Act shall affect any title to land whether developed or undeveloped held by the Federal Government or any agency of the Federal Government at the commencement of this Act and accordingly, any such land and shall continue to rest in the Federal Government or the agency concerned.
49(2) In this section, ‘agency’ includes any statutory corporation or any other statutory body (whether corporate or unincorporate) or any company wholly owned by the Federal Government.”
Of course, Section 251(1)(r) of the 1999 Constitution of Nigeria, as amended, says: “Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters;
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agency and…”
There is no doubt that the action or decision of the 1st to 3rd Respondents (Federal Agencies) to sell the property owned by the Government, to the 4th Respondent is at the root of this case of the Appellant and the 4th Respondent. The trial Court (Federal High Court) is therefore the appropriate Court with requisite jurisdiction to determine the dispute(s), in my opinion. See the views of my Lord *Okoro, JCA,* (as he then was) in the case of *Minister, Federal Housing Authority & Urban Development & Anor. Vs. Bello (2009) 12 NWLR (Pt. 1155) 345 at 364-365.*
Certainly, this was not a land case, or one for declaration of title, since the parties had agreed that title was vested in the Federal Government, and which transferred the title to the 4th Respondent. Appellant only disputed the sale, saying it ought to have been to him! The trial Court was therefore properly located to pronounce on the sale, whether it was valid or not, and whether the Appellant was entitled to it or not.
I think that, even if the trial Judge/Court were not to have jurisdiction to entertain the 4th Respondent’s counter-claim because of the inelegance or wrongs in the drafting of the reliefs sought, that the striking out of the counter-claim would not affect the value passed to the 4th Respondent by the 1st to 3rd Respondents in the property, upon the dismissal of the Appellant’s case by the lower Court. The challenge of jurisdiction, in the circumstances, was not well thought out, in my opinion.” Per MBABA, JCA.
By: King Onunwor with reports from James Atsor
Atsor wrote from N.Ngbea & Co Chambers, Makurdi, Benue State.
Professional Misconduct: BOSAN, Not BOSAW
I have just gone through a 17 April 2022 piece titled, “Senior Advocates Of Whatever” and credited to distinguished learned Professor and inimitable human rights activist, Chidi Odinkalu. I completely agree with distinguished Learned Prof, that the conduct of some Senior Advocates of Nigeria leaves very much to be desired, and that this is worrisome because it sets bad examples for younger lawyers.
However, I beg to disagree with the learned professor’s conclusion that, _”young lawyers particularly now aspire with an overwhelming sense of desperation to join this coven, safe in the assurance that it will sanctify them as witches and wizards of professional impunity. To fully reflect its current evolution, it may be time for the Body to upgrade its name to Body of Senior Advocates of Whatever (BOSAW)”.
First, I seriously doubt that reasons for young lawyer’s diligent aspiration to become members of the BOSAN include that being a member of the distinguished body will “sanctify them as witches and wizards of professional impunity”.
With due respect, I don’t think so. And I will give just one example to buttress my point. If being a SAN offers one an immunity from professional discipline, why then was Mr. Aondoakaa suspended by the LPPC and later declared by a High Court, the Court of Appeal and the Supreme Court, to be unfit to hold any public office in Nigeria.
The pronouncement of the apex court is well reflected in respected Prof Odinkalu’s piece thus: _’On 10 December 2021, the Supreme Court of Nigeria determined that “Mr. Aondoakaa “had, by his conduct, undermined and subverted the administration of justice and the independence, authority and integrity of the judiciary” and “ought not to be entrusted with any other public office at all.”’_ In my opinion, suspension from holding any public office is serious punishment and constitutes a sufficient sanction for Mr Aondoakaa’s reprehensible conduct in office as the HAGF. Note that the mere fact he’s a SAN did not stop the apex court or the Legal Practitioners Privileges Committee (LPPC) from so proceeding against him. This is sufficient testimony that SANs are not immune from professional discipline for breach of Legal Ethics.
Second, there is no doubt that some SANs misbehave, but we should know that so many non-SANs equally misbehave. And just as there exist some SANs who are yet to be punished for their professional misconduct, there are very many non-SANs who have trampled upon the Legal Ethics with impunity. It must be admitted there is a general problem with discipline in the Law Profession in Nigeria; it’s not about SANs nor about BOSAN. In a statement made available to newsmen on 2 April 2021, the leadership of the Nigerian Bar Association (NBA) had advised the general public as follows:
“The attention of the Nigerian Bar Association (NBA) has been drawn to the video making the rounds where the Chairman of the Code of Conduct Tribunal (CCT) – Danladi Yakubu Umar, was seen, together with his security detail, allegedly assaulting a citizen at Banex Plaza, in Wuse Abuja. We understand that this citizen turned out to be a 22-year-old employee of Jul Reliable Guards Services Limited, posted as a security guard to the Plaza and who is now reportedly hospitalised.
Further, as a member of the legal profession, Danladi Yakubu Umar is expected, by the extant rules that regulate the conduct of legal practitioners in Nigeria, to maintain a high standard of professional conduct, and not to engage in any conduct which is unbecoming of a member of the legal profession. Prima facie evidence available at the moment raise questions regarding whether such standards have been met. In view of the foregoing, the NBA shall through its relevant committee, investigate the circumstances leading to the altercation, and depending on its findings, will ensure that appropriate action is taken to address this occurrence”.
The news that made round on the same day was, “NBA to Investigate CCT Chairman’s Alleged Assault on Security Guard”.* Danladi Umar is not a SAN. Yet, till date, nothing more has been heard from the NBA or about actions taken by the NBA leadership on the matter. “Has the matter been swept under the carpet?” is the question on many lips, till date.
Anyway, the point I am trying to make here is that misbehavior in the law profession in Nigeria is not exclusive to members of BOSAN. I therefore respectfully submit that one shouldn’t rely on the unbecoming conduct of some SANs to brand the entire membership of BOSAN evil or misbehaving as such would amount to discrediting all SANs in Nigeria on account of the misconduct of only a handful of their colleagues.
Also, following from the example I have given above, if we should begin to look down on the rank/title of SAN or on all SANs, simply because of the misconduct of few of the holders of the title, maybe, then applying the same (albeit faulty) reasoning, the entire membership of the legal profession as a whole, should be condemned or discredited since there are many non-SANs whose conducts also leave very much to be desired, and who have yet to be brought to book before relevant professional disciplinary authorities. Similarly, we should also begin to see Nigeria as a country of criminals or terrorists simply because terrorism and criminality have pervaded the environment landscape.
What is more? Let’s even take specific examples in the case of Body of Professors in Nigeria: (1) The Guardian of 26 March 2021 reports under the title, “Court jails professor three years for electoral fraud” , that “an Akwa Ibom State High Court 2, sitting in Ikot Ekpene, has found a professor of Soil Physics at the University of Uyo, Peter Ogban, guilty of an electoral offence and consequently sentenced him to three years imprisonment”.
According to reports, the court had found him guilty of altering the results of the election to favour the APC. (2) Also, in June 2018, a professor of Accounting at Obafemi Awolowo University (OAU), Richard Akindele, was dismissed for demanding sex from one Monica Osagie for better grades in exams. Recall that Professor Akindele was later on 17 December 2018, convicted after he pleaded guilty to a 4-count charge. (3) On 16 April 2022, the gazettengr reports that _”Another OAU professor busted for attempted rape, battery of female student”.*_ (4) Further, on 17 December 2019, it was reported in the Guardian that “The University of Abuja… has dismissed a professor and former Dean, Faculty of Agricultureture, Adeniji Adedayo Abiodun over alleged sexual harassment”. (5) On the same date, the paper reported, the same university approved the dismissal of Professor Agaptus Buzo-Chibuzor Orji of the Department of Science and Environmental Education for falsification of academic records and for aiding and abetting exam malpractice in the university. (6). On March 04, 2022, it was in the news that “Professor Richard Solomon Musa Tarfa, co-founder of orphanages for vulnerable children in Kano and Kaduna states, has been convicted by a High Court in Nigeria’s Kano State of forging a certificate of registration from the Kano state Ministry of Women’s Affairs and Social Development”.
(7) On 20 August 2021, Daily Post reported that “The High Court sitting in Birnin Kudu, Jigawa State, has on Thursday sentenced Prof. Steve Uchella and Boniface Afifa Oru to five years’ imprisonment for forgery.” (8) On 10 December 2020, an “Akwa Ibom State High Court in Uyo has remanded a Nigerian professor, Ignatius Uduk, in prison for his alleged involvement in election fraud during the 2019 general elections in the state. Professor Uduk was arraigned on Wednesday by the Independent National Electoral Commission (INEC), for allegedly declaring false election results in 2019”.
The list is endless. Should we then rely on these few cases of professor-misconduct to draw a hasty generalisation and conclusion about professors, that the Body of Professors in Nigeria is a body of mostly criminals, fraudsters and sex maniacs? Noooooo.
Such a conclusion would be faulty, and especially tantamount to commiting a falacy of Hasty Generalization. Hasty generalization is a fallacy in which a conclusion is not logically justified by sufficient or unbiased evidence. It’s also called an insufficient sample, a converse accident, a faulty generalization, a biased generalisation, jumping to a conclusion, secundum quid, a neglect of qualifications or over-generalisation.
Hasty Generalisation fallacy is basically used to refer to making of a claim based on evidence that is just too insufficient or based on unrepresentative samples; drawing a conclusion based on a small sample size, rather than looking at statistics that are much more in line with the typical or average situation.
The gravamen of my submission is this: there are very many disciplinary bodies in the law profession in Nigeria; anyone who thinks that any lawyer, SAN or non-SAN, has acted contrary to the Legal Ethics, owes the profession a duty to report such erring member or members to the appropriate disciplinary body or bodies, and to follow up with such report in order to get the affected lawyer or lawyers subjected to relevant professional discipline and sanctions where liable. Rule 55 of the Rules of Professional Conduct for Legal Practitioners, 2007, is clear enough: _”(1) If a lawyer acts in contravention of any the rules in these Rules or fails to perform any of the duties imposed by the Rules, he shall guilty of a professional misconduct and liable to punishment as provided in Legal Practitioners Act, 1975. (2) It is the duty of every lawyer to report any breach of any of these rules that comes to his knowledge to the appropriate authorities for necessary disciplinary action.
In the meantime, we should not paint an entire community evil simply because few of its inhabitants are misconducting themselves. The BOSAN remains BOSAN, respected and distinguished in all ramifications, irrespective of the obvious misconduct of some of its members. The respected BOSAN doesn’t translate to _”Body of Senior Advocates of Whatever (BOSAW)”_ on account only of the misbehavior of just a handful of its members. Non-misbehaving members of BOSAN (and these are in the majority) shouldn’t be made to pay for, or to bear part of, the taint or ignominy caused by the sins of some of their colleagues.
Let those SANs who misbehave be fished out and punished in line with law and Legal Ethics, but let the BOSAN as a body remain a respected Body of Senior Advocates of Nigeria and not a “Body of Senior Advocates of Whatever”.
By: Sylvester Udemezue
Udemezue wrote from the Nigerian Law School.
Court Revokes Monarch’s Bail
A Magistrate Court sitting in Port Harcourt has revoked the bail granted to the Paramount Ruler of Kono-Boue community, King Taalor Tornwe in Khana Local Government Area of the Rivers State.
Tornwe was arraigned on the 18th of January on charges bordering on conspiracy and cultism in suit No.91C/2022 before Chief Magistrate A.O. Amadi-Nna.
The monarch was remanded in Port Harcourt Correctional Centre on the ground of lack of jurisdiction to entertain the matter.
The Magistrate further ordered that the case file be transmitted to Department of Public Prosecution for advice.
The defendant as it was learnt, was said to have secured bail in another court, which Magistrate refused.
The Court in an application by Commissioner of Police, after hearing from counsel to the parties, ordered that the accused be rearrested after revoking the bail.
It also ordered that the defendant after being rearrested should be remanded in Port Harcourt Correctional Center.
By: Kiadum Edookor
Compliance To Law, Order: I’ll Adopt International Approach -Guber Aspirant
The governorship aspirant of the Young Progressives Party (YPP), Deacon Danagogo Wenike-Briggs, has said that he will adopt the best international approach to ensure that his government encouraged total compliance to law and order if elected governor of Rivers State.
Wenike-Briggs, said this when he spoke with The Tide in Port Harcourt yesterday.
The approach, according to him, will be to punish patronisers instead of the offenders themselves.
He noted that such will be the best way to tackle law offenders, in that dearth of patronage will force the real offenders to comply strictly.
“When you arrest anyone that buys from the street seller and allow the seller to go unpunished, such patronisers will not stop again the next time to buy, thereby indirectly enforcing the law on behalf of the government “, he said.
Wenike-Briggs, who is also a trained engineer, expressed worries that laws and order are fragrantly disobeyed and offenders go scot-free.
He recalled how laws and order are strictly adhered to in foreign countries and vowed to replicate same in the State, should he emerge as the governor next year.
“Our government will focus more on crime fighting. If you can agree with me, you can see that insecurity is the major enemy we have. And that is why we must all rise to the occasion”, he said.
The Kalabari-born politician maintained that special attention must be given to all crime fighters including the judiciary in the determination to have a crime-free state.
He also said that he will welcome private investors in security in order to ensure an excellent result.
The guber aspirant further informed that he was ready to enthrone good governance and added that the state needed fresh blood that will bring change.
“Of a truth, we need change. Such change must come from something new. You can not expect change from something old .That is why we must work together to succeed”, he said.
By: King Onunwor
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