Latest SC decisions on factors for determining a liquidated sum in an undefended list procedure, and other issues
Wema Securities And Finance Plc V Nigeria Agricultural Insurance Corp
(Supreme Court - June 26th, 2015)
Legalpedia Electronic Citation: LER[2015]SC. 177/2006
Areas of Law
ACTION, APPEAL, COURT, DAMAGES, JURISDICTION, PRACTICE AND PROCEDURE, UNDEFENDED LIST, WORDS AND PHRASES
Summary of FactsThe Plaintiff/Appellant instituted this action at the High Court of the Federal Capital Territory, against the Defendant/Respondent, under the Undefended List claiming the sum of Five Million, Eighty Eight Thousand, Two Hundred and Eleven Naira, Eighteen Kobo (N5, 088, 211.18) over an overdraft of Five Hundred and Seventy Thousand (N570, 000.00) which he allegedly granted to one Charles Ogbolu. The Respondent filed a Notice of Intention to Defend and averred that he was not privy to the loan agreement between the parties. The trial court entered judgment for the Appellant under the Undefended List. On appeal to the Court of Appeal at the instance of the Respondent, the lower court struck out the Appellant’s claim on grounds that the trial court lacked jurisdiction to entertain the claim amongst others and allowed the appeal. Aggrieved by the decision of the lower court, the Appellant has appealed to this court.
Held
Appeal Succeeds In Part, Cross Appeal Dismissed
Issue for Determination
- Whether the lower court was right to have discountenanced the Preliminary Objection of the appellant and allow (sic) the new issues raised by the respondent (then appellant) without leave of court?
- Whether the lower court was right to have decided that the trial court in the circumstances had no jurisdiction to try the matter?
- Whether the lower court was right to have held that the trial court was wrong to have heard and determined the matter under the Undefended List as it did?
Rationes
NOTICE OF PRELIMINARY OBJECTION – EFFECT OF FAILURE TO COMPLY WITH ORDER 3 RULES 15 OF THE COURT OF APPEAL RULES IN FILING A NOTICE OF PRELIMINARY OBJECTION
“Indeed, as with Order 2 Rule 9 of the Supreme Court Rules (as amended in 2009), failure to bring the notice in accordance with Order 3 Rule 15 of the Court of Appeal Rules (supra) does not render it ineffective, Agbaka v Amadl and Anor [1998] 7 SCNJ 367, 375; Maigoro v Garba [1999] 10 NWLR (pt. 624) 555; [1999] 7 SCNJ 270; Ajide v. Kelani (l985) 2 NSCC 1298, 1306”. PER C.C. NWEZE, J.S.C
APPEAL - DUTY OF A RESPONDENT WHO INTENDS TO CHALLENGE THE
COMPETENCE OF AN APPEAL
“This court has taken the view that a respondent, who intends to challenge the competence of an appeal, has the option of raising a preliminary objection to it either by
giving the appellant three clear days' notice before the date of hearing pursuant to the above rule or by incorporating it in the respondent's brief or both, Magit v University of Agriculture, Makurdi and Ors (supra) 29, B-F; Equity Bank of Nigeria Ltd. vs. Halilco Nig. Ltd. (2006) 7 NWLR (pt. 980) 568”. PER C.C. NWEZE, J.S.C
FRESH ISSUE ON APPEAL – A PARTY SEEKING TO RAISE FRESH ISSUE ON APPEAL MUST SEEK THE LEAVE OF COURT
“It is still a valid general principle that where a party seeks to raise a fresh issue on
appeal, he must seek the leave of court. Where he fails to do so, the issue, which ipso
facto is rendered incompetent, would be liable to be struck out, A-G., Oyo State v Fairlakes Hotel Ltd [1988] 12 SC (pt. 1) 1; [1988] 5 NWLR (pt. 92) 1; Uor v Loko [1988] 2 NWLR (pt. 77) 430”. PER C.C. NWEZE, J.S.C
FRESH ISSUE ON APPEAL – THE ISSUE OF JURISDICTION IS AN EXCEPTION TO THE RULE OF RAISING FRESH ISSUE ON APPEAL
“However, the issue of jurisdiction constitutes an exception to this general principle for it (such an issue of jurisdiction] could be raised for the first time before an appellate court, with or without leave, Obiakor and Anor v The State [2002] 10 NWLR (pt. 776) 612,626 G; Gaji v. Paye[2003] 8 NWLR (pt. 823) 583; Oyakhire v The State [2006] 7 SCNJ 319,327 - 328; [2006] 15 NWLR (pt.1001) t57; Okoro v. Nigerian Army Council (2000) 3 NWLR (pt. 647) 77,90 - 91; Ajakaiye v. Military Governor, Bendel State (1993) 9 SCNJ 242; Yusuf v. Cooperative Bank Ltd(1994) 7 NWLR (pt. 359) 676”. PER C.C. NWEZE, J.S.C
ISSUE OF JURISDICTION – AN ISSUE OF JURISDICTION CAN BE RAISED ON APPEAL FOR THE FIRST TIME WITHOUT THE LEAVE OF COURT
“Due to its fundamental nature, it is exempted from the disabilities and restrictions which hamper other legal points from being canvassed or agitated for the first time on appeal, Western Steel Works Ltd and Anor. v. Iron steel workers Ltd (I987) 2 NWLR (pt 179) 188. In effect, such an issue of jurisdiction could always be raised without leave, Aderibigbe v. Abidoye [2009] 10 NWLR (pt. 1150) 592, 615,paragraphs C - G; Comptroller Nigeria Prisons Services Lagos v. Adekanye (2002) 15 NWLR (pt. 790) 33; Obatoyinbo v Oshatoba (1996) 5 NWLR (pt. 450) 531; Management Enterprises Ltd. v Otusanya (1987) 2 NWLR (pt 179) 188”. PER C.C. NWEZE, J.S.C
ISSUE OF JURISDICTION - THE ISSUE OF JURISDICTION BEING FUNDAMENTAL CAN BE RAISED WITHOUT LEAVE OF THE APPELLATE COURT
“It can never be too late to raise the issue of jurisdiction because of its fundamental and
intrinsic nature and effect in judicial administration, Magari v Matari [2000] 8 NWLR (pt 670) 722, 735; Akegbe v Ataga [1998] 1 NWLR (pt 534) 459,465; State v nagoruwa
[1992) 2 SCNJ 1; A.G., Lagos v Dosumu [1989] 3 NWLR (pt 111) 552. Indeed, leave of the appellate court is unnecessary since it can itself raise it suo motu as soon as sufficient facts or materials are available for it to do so, Obikoya v. The Registrar of Companies (1975) 4 SC 31, 35; NNPC v Orhiowasele and Ors(2013) LPELR -20341(SC); Elabanjo v Dawodu [2006] 15 NWLR (pt. 1001) 76; Ndaejo v. Ogunnava [1977] 1 SC 11; Chacharos v. Eklmpex Ltd (1988)1 NWLR (pt. 68) 88; Bakare v. A.G. federation[1990] 5 NWLR (pt. 152) 516; Oyakhire v. State [2006] 15 NWLR (pt. 1001) 157; Oloriode v. Oyebi [1984] l SCNLR 390; Ezomo v. Oyakhire [1985] 1 NWLR (pt 2) 193; Akegbeja v. Ataga [1998] 1 NWLR (pt 534) 459, 468; 469; Bronik Motors v. Wema Bank Ltd [1983] 6 SC 158; Senate President v Nzeribe (2004) 41, WRN 60; Odiase v Agbo (1972) 1 All NLR (pt 1) 170; Dickson Moses v The State (2006)7 SCM 137, 169”. PER C.C. NWEZE, J.S.C
ISSUE OF JURISDICTION – IT IS DESIRABLE TO RAISE AN OBJECTION ON THE ISSUE OF JURISDICTION TIMEOUSLY TO SAVE TIME AND COST
“Thus, although it is desirable that preliminary objections on issues of jurisdiction be raised early, once it is apparent to any party that the court may not have jurisdiction, it can be raised even viva voce. What is more, it is always in the interest of justice, where
necessary, to raise jurisdictional issues so as to save time and costs and to avoid a trial
which may, ultimately, amount to a nullity, Osadebay v. A-G., Bendel State (I991) 1 NWLR (pt.169) 525; Owoniboys Tech. Services Ltd v John Holt Ltd (1991) 6 NWLR (pt.199) 550; Okesuji v. Lawal [1991] 1 NWLR (pt.170) 661; Katto v. Central Bank of Nigeria [1991] 9 NWLR (pt. 2I4) 126; Utih v. Onoyivwe (1991) 1 NWLR (pt.166) 166)”. PER C.C. NWEZE, J.S.C
ISSUE OF JURISDICTION – THE ISSUE OF JURISDICTION CAN BE CANVASSED ON APPEAL FOR THE FIRST TIME WITHOUT THE REQUIREMENT OF LEAVE OF COURT
“A jurisdictional issue, such as the one under consideration, could be canvassed, for the
first time, on appeal, without leave of that court, Western Steel Works Ltd and Anor. v. Iron Steel workers Ltd (supra); Aderibigbe v. Abidoye (supra) 615 paragraphs. C - G; Comptroller Nigeria Prisons Services Lagos v Adekanye (supra); Obatoyinbo v Oshatoba (supra); Management Enterprises Ltd v Otusanya (supra”). PER C.C. NWEZE, J.S.C
JURISDICTION OF THE FEDERAL HIGH COURT – FACTORS TO CONSIDER IN DETERMINING THE JURISDICTION OF THE FEDERAL HIGH COURT
“Now, from a conspectus of recent decisions' it would be correct to assert that this court has, now, taken the position that in considering the issue of the jurisdiction of the Federal High Court under section 251 (supra), both the status of the parties (that is' whether it is the Federal Government or any of its agencies) and the subject matter of the claim (that is, whether it relates to any of the enumerated items in the said section) have to be looked at, Obiuwevbi v. CBN (2011) LPELR -2185 (SC) 20, C-F, Citing Oloruntoba-Oju v Abdul-Raheem and Ors [2009] s-6 SC (pt 11) 57;(2009)6 MJSC (pt 1) 1; NURTW and Anor v RTEN and Ors (2012) LPELR -7840 (SC) 47, C-G; NNPC and Ors v Orhiowesele and Ors (supra); PDP and Anor v Sylva and Ors (2012) LPELR -7814 (SC) 52-53, G-E; James v INEC and Ors [decision of this court delivered on March 13,2015); Ohakim v Agbaso [2010] 19 NWLR (pt 1226) 172, 236 - 237, G-D; Kakih v PDP and Ors (2014) 15 NWLR (pt 1430) 374,414, F-G; Ahmed v Ahmed and Ors (2013)15 NWLR (pt 1377) 274,335, C-H”. PER C.C. NWEZE, J.S.C
ACTION FOR DECLARATION OR INJUNCTION – QUESTIONS A COURT SHOULD CONSIDER IN AN ACTION FOR DECLARATION OR INJUNCTION AFFECTING THE VALIDITY OF AN EXECUTIVE OR ADMINISTRATIVE ACTION OR DECISION BY THE FEDERAL GOVERNMENT OR ITS AGENCIES
“In action under this class, the court would be required to resolve three sub-questions (i) whether the claim relates to the validity of any executive or administrative action or decision; (ii) if either of the parties is the Federal Government or any of its agencies and (iii) the nature of the reliefs, that is, whether they are for declaration; injunction; damages or specific performance, PDP v Sylva (2012) LPELR -7814 (SC) 52-53, G-E; Oloruntoba-Oju v. Dopamu (supra) 815-816; 829-830, A-C; University of Abuja v Ologe (supra) 722; PDP v Sylva (2012) LPELR -7814 (SC) 52-53, G-E; Ladoja v INEC (2007) LPELR - 1738 (SC) 27-28,G-D; Obi v INEC(2007) 11 NWLR (pt 1046) 565,636- 637, G-C;638, B-E; Ahmed v Ahmed and Ors (supra) 335, C-H”. PER C.C. NWEZE, J.S.C
PUBLIC OFFICERS (PROTECTION) ACT - SECTION 2 OF THE PUBLIC OFFICERS (PROTECTION) ACT IS INAPPLICABLE TO CASES OF CONTRACT
“It is now settled law that section 2 of the public Officers (Protection) Act (and all such enactments similarly worded like it, for example, section 26 (l) (a) and (b) of the Nigerian Agricultural Insurance Act (supra)) do not apply to cases of contract, Nigerian ports Authority v. CGFCS and Anor (1974)1 All NLR (pt. 2) 463; Salako v. L.E.D.B. and Anor (1953) 20 N,L.R. 169; Osun State Government v Dalami (Nig Ltd (2007) LPELR -2317 (SC) 13, A-B; (2007) All FWLR (pt 365)439,452, A-F; I. T. P. P. v UBN Plc(supra); PCHS Co Ltd and Ors v Migfo Nig Ltd (2012) LPELR -972s) (SC), PER C.C. NWEZE, J.S.C
UNDEFENDED LIST PROCEDURE – PURPOSE OF THE UNDEFENDED LIST PROCEDURE
“It is no longer open to argument that the Undefended List procedure is a truncated form of the civil litigation process peculiar to the adversarial judicial system. Under the said procedure, ordinary hearing is rendered unnecessary due, in the main, to the absence of an issue to be tried, UBA and Anor v Jargaba (2007) LPELR -3399 (SC) 27; Agwuneme v Eze [1990] 3 NWLR (Pt. I37) 242. Essentially, therefore, it is designed to secure quick justice and to avoid the injustice likely to occur when there is no genuine defence on the merits to the plaintiff’s case, International Bank for West Africa Limited v Unakalamba [1998] 9 NWLR (pt. 565) 245”. PER C.C. NWEZE, J.S.C
UNDEFENDED LIST PROCEDURE – AN UNDEFENDED LIST PROCEDURE IS MEANT TO SHORTEN THE HEARING OF A SUIT IN A CLAIM FOR LIQUIDATED SUM
“It is, usually, meant to shorten the hearing of a suit where the claim is for a liquidated sum, Co-operative and Commerce Bank (Nigeria) Plc v. Samed Investment Company Limited [2000] 4 NWLR (pt. 651) 19”. PER C.C. NWEZE, J.S.C
UNDEFENDED LIST – OBJECT OF THE RULES RELATING TO ACTIONS ON THE UNDEFENDED LIST
“The object of the rules relating to actions on the undefended list is to ensure quick dispatch of certain types of cases, such as those involving debts or liquidated money claims, Bank of the North v Intra Bank SA (1969) 1 All NLR 91; Bendel Construction Co. Ltd. v Anglo Development Co. (Nigeria) Ltd lL972l Ail NLR (pt.1) 153; Olubusola v Standard Bank (t975) 1 All NLR (pt.1) 125; N. M. C. B. (Nig) Ltd v Obi (2010) LPELR -2051 (26) 26 which are, virtually, uncontested, Ataguba and Co v Gura Nig Ltd (2005) LPELR -584 (SC) 16-17; Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (pt. 144) 283 at 324-325; Nwankwo and Anor v EDCS UA (2007) LPELR -2108 (SC) 46; Bank of the North v Intra Bank S.A. (1969) 1 All NLR 97; Ataguba & Co. v. Gura (Nig.) Ltd.(2005)8 NWLR (pt.927) 429;[2005] 2 SCNJ, 139,157; (2005) 2 S.C (Pt.1) 101. Such rules are, thus, designed to relieve the courts of the rigour of pleadings and burden of hearing tedious evidence on sham defences mounted by defendants who are just determined to dribble and cheat plaintiffs out of reliefs they are normally entitled to because the case is, patently, clear and unassailable, Cow v. Casey (1949) 1 K.B.4B2; Sodipo v. Leminkainen and Ors [1986] NWLR (pt.15) 220; IJBA and Anor v Jargaba (2007) LPELR -3399 (SC) 24; Obaro v Hassan (2013) LPELR - 20089 (SC); Planwell Ltd v Ogala(2003)18 NWLR (pt.852) 478;(2003) 12 SCNJ 58, 68. In such a case, it would be inexpedient to allow a defendant to defend for the mere purpose of delay, Sodipo v Leminkainen [1986] 1 NWLR (pt.15) 220; Adebisi Macgregor Ass. Ltd v N. M.B. Ltd (1996) 2 NWLR (pt.43) 378; (1996)2 SCNJ 72, 81. PER C.C. NWEZE, J.S.C
UNDEFENDED LIST PROCEDURE – THE UNDEFENDED LIST PROCEDURE IS NOT DESIGNED TO SHUT OUT A DEFENDANT WITH A TRIABLE ISSUE
“However, this procedure is not designed to shut out a defendant who can show in his affidavit in support of intention to defend that there is, indeed, a triable issue, Nishizawa v Jethwani [1984] 12 SC I24, I34; Akpan v A. I. P. I. C Ltd (2013) LPELR -20753 (SC); Ataguba and Co v Gura Nig Ltd (supra); Nortex (Nigeria) Limited v. Franc
Tools Co. Ltd (1997)4 NWLR (pt. 501) 60.” PER C.C. NWEZE, J.S.C
UNDEFENDED LIST PROCEDURE – NATURE OF AN AFFIDAVIT IN SUPPORT OF A NOTICE OF INTENTION TO DEFEND
“For this purpose, the said affidavit in support of the notice of intention to defend must,
of necessity, disclose facts which will, at least, throw some doubt on the case of the plaintiff, Agro Millers Limited v. Continental Merchant Bank (Nigeria) Plc(1997)10 NWLR (pt. 525) 469; this it can achieve by donating facts which, on the face of the affidavit, disclose a reasonable defence, Jipreze v Okonkwo [1987] 3 NWLR (pt.62) 737; Bendel Construction Co. Ltd v Anglocan Development Co. (Nig.) Ltd(1972) l All NLR 153. The affidavit should not, merely, parade general statements that the defendant has a good defence to the action. Such a general statement must be supported by particulars which, if proved, would constitute a defence, John Holt and Co. (Liverpool) Ltd v Fajemirokun (1961)All NLR 492”. PER C.C. NWEZE, J.S.C
UNDEFENDED LIST PROCEDURE - WHAT CONSTITUTE A DEFENCE ON THE MERIT IS WITHIN THE DISCRETION OF A TRIAL COURT
“What will constitute a defence on the merit will depend on the facts of the case. This is
within the discretion of the trial court: a discretion which must be exercised judicially and judiciously after a full and exhaustive consideration of the affidavit in support of the notice to defend, Grand cereals and Oil Mills Ltd v. As-Ahel International Marketing
Ltd and Anor [2000] 4 NWLR (pt. 652) 310; Alhaji Danfurani v Shekari (I996) 2 NWLR (pt. 433) 723; Alhaji Ahmed v Trade Bank of Nigeria Plc (1997) 10 NWLR (pt. 524) 290; Calvenply Limited v Pekab International Limited [2001] 9 NWLR (pt. 717) 164”. PER C.C. NWEZE, J.S.C
UNDEFENDED LIST PROCEDURE – IMPLICATION OF DISCLOSING A DEFENCE ON THE MERIT IN AN UNDEFENDED LIST PROCEDURE
“Where such a defence is disclosed, the justice of the case would demand that the matter be transferred to the General Cause List for hearing on the pleadings, N.M.C.B. (Nig) Ltd v Obi(2010) LPELR 2051 (SC) 26; Adebisi Macgregor Associates Ltd v Nigeria Merchant Bank Ltd [1996] 2 NWLR (pt. 431) 378; ACB Ltd v. Gwagwada (1994) 4 SCNJ (pt. II) 268; Olubusola Stores v. Standard Bank of Nig. Ltd (1975) NSCC 137; John Holt and Co (Liverpool) Ltd v Fajemirokun (1961) ANLR 513; N. M. C. B (Nig) Ltd v Obi(supra)”. PER C.C. NWEZE, J.S.C
CLAIM ON INTEREST – DUTY OF A PARTY CLAIMING INTEREST
“Where interest is being claimed as a matter of right, the proper practice is to, claim entitlement to it on the writ and plead facts which show such an entitlement in the statement of claim, Ekwunlfe v Wayne (West Africa) Ltd (supra)”. PER C.C. NWEZE, J.S.C
LIQUIDATED 'SUM' OR 'DAMAGES' – MEANING OF LIQUIDATED 'SUM' OR 'DAMAGES'
What then is a liquidated 'sum' or 'damages'? Damages is said to be liquidated when a specific sum of money has been expressly stipulated by the parties to a bond or other contract as the amount of damages to be recovered by either party for a breach of the agreement by the other side. Stein vs. Bruce 366 S.W 2d. 732, 735 (Blacks Law Dictionary, Sixth Edition at page 391). See also the cases of Eko Odume vs. Ume Nnachi (1964) 1 All NLR 324 at 328 and Maja vs. Samouris (2002) 7 NWLR (Pt. 765) 78 at 102”. PER J. A. FABIYI, J.S.C
LIQUIDATED SUM - FACTORS IN DETERMINING LIQUIDATED SUM
“It is now clear that the factors for determining a liquidated sum are as follows :-
(a) The sum must be arithmetically ascertainable without further investigation.
(b) If it is in reference to a contract, the parties to same must have mutually and unequivocally agreed on a fixed amount payable on breach.
(c) The agreed and fixed amount must be known prior to the breach. PER J. A.FABIYI, J.S.C
Statute Referred To
Court of Appeal Rules
Federal High Court Act, Cap 134, LFN,1990
Nigerian Agricultural Insurance Act
Public Officers' Protection Act Supreme Court Rules (as amended in 2009)
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Independent National Electoral Commission V Ogbadibo Local Government & Ors
(Supreme Court - July 3rd, 2015)
Legalpedia Electronic Citation: LER[2015] SC. 500/2012
Areas of Law
APPEAL, ACTION, COURT, JURISDICTION,LAW OF EVIDENCE, LIMITATION LAW, LOCUS STANDI, PRACTICE AND PROCEDURE, WORDS AND PHRASES
Summary of Facts
The Respondents commenced an action against the Appellant at the Federal High Court Abuja, the matter was subsequently transferred to Makurdi. The Respondents at the Trial Court sought for declarative reliefs which include amongst all other; a declaration that the Benue State House of Assembly is not properly constituted or composed as required by Sections 91and 112 of the 1999 Constitution of the Federal Republic of Nigeria., a declaration that having regard to the provision of section 91 and 112 of the 1999 Constitution of the Federal Republic of Nigeria, the defendant acted improperly and unfairly in refusing or failing to include the suppressed OTUKPA State Constituency in Ogbadibo Local Government Area among the names of the suppressed state constituencies. The Appellant in response to the Originating Summons filed a Notice of Preliminary objection challenging the jurisdiction of the trial Court to entertain the suit which he claimed was statute barred, having not been instituted within three months after the accrual of cause of action. The trial Court after hearing both parties, dismissed the Preliminary Objection, and granted all the reliefs sought by the Respondents. Aggrieved, the Appellant appealed to the Court of Appeal where his appeal was disallowed and the decision of the trial Court affirmed. The Appellant was thereafter prompted to make further appeal to the Supreme Court.
Held
Appeal Allowed
Issue for Determination
- Whether the Court of Appeal was right in holding that the respondents satisfied the requirements of the law on locus standi and therefore clothed with the necessary locus standi to institute the action
- Whether the Appellant is not protected by section 2(a) of the Public Officers Protection Act having regard to the circumstances of this case
- Whether the Court of Appeal was right in holding that Exhibits A,B and C are admissible in evidence and their usage cannot be faulted. (Ground 3).
- Whether the Court of Appeal was right in relying on its judgment in the case of Oju Local Government v. INEC (2007) 14 NWLR (pt 1054) 242 having regard to the circumstances of this case
- Whether the Court of Appeal was correct to require the Appellant to proffer legal argument by affidavit evidence in the circumstances of this case.
- Whether the Court of Appeal was correct when it held that there were sufficient materials for grant of declaratory reliefs in the circumstances of this case
Rationes
LOCUS STANDI – MEANING OF LOCUS STANDI
“Locus standi is a Latin term or expression. It denotes the plaintiffs capacity to sue in a court of law to enforce a lega1 right. Once the plaintiff has the right or vested interest to protect and enforce legally and this has been disclosed in Writ of Summons' and Statement of Claim and in an action commenced by originating summons (as in the instant case) in the averments in the affidavit in support of the summons, the plaintiff would be adjoined to have shown sufficient interest which entitles him to sue on the subject matter Chances of success of an action are not relevant consideration: 'see Taiwo v. Adegboro (2011) 11 NWLR (pt. 1159) 562.” PER S.GALADIMA, J.S.C.
ESTABLISHMENT OF LOCUS STANDI – DUTY OF A PARTY ESTABLISHING LOCUS STANDI
“For a party to establish locus standi, he must show that the matter is justiciable - capable of being disposed of judiciously in a court of law and the existence of dispute between parties. See Ajayi v. Adebiyi (2012) 11 NWLR (pt. 1310) 137.” PER S.GALADIMA, J.S.C
LIMITATION LAW – ESSENCE OF THE LIMITATION LAW
“I must state here that the limitation Law does generally either of two things; it either bars the remedy without extinguishing the right or bars the remedy and at the same time extinguishes the right. Whichever effect it has will depend on the particular statute. However there is a general consensus that all limitation laws have the effect of closing the doors of the court against the plaintiff'.” PER S.GALADIMA, J.S.C
PUBLIC OFFICE PROTECTION ACT - ESSENCE OF THE PUBLIC OFFICER PROTECTION ACT
‘The essence or effect of the public officer protection Act herein, is to extinguish the cause of action if it is commenced after the stipulated period, which is three months, subject to the exception provided for in section 2 of the Act: 'Thus where there has been a continuance of injury or damage, a fresh cause of action arises from time to time, as often as damage or injury is caused' See Aremo v Adekanye (supra), Battishee v Reed (1856)18C8.69C at 714.” PER S.GALADIMA, J.S.C
DEFENCE OF LIMITATION OF TIME - ONCE A DEFENCE OF LIMITATION OF TIME IS STATED AND GROUNDED IN THE AVERMENTS IN SUPPORT OF THE SUMMONS, AND IT IS ESTABLISHED, THIS BARS THE PLAINTIFF’S REMEDY AND EXTINGUISHES THE RIGHT OF HIS ACTION
“ In law once a defence of limitation of time is stated and grounded in the averments in support of the summons, (as in this case at hand) and it is established, this bars the plaintiffs, remedy and extinguishes the right of his action; then the Court will wash off its hands and decline to entertain the action. This in effect means that there, is absolutely no basis for prying into the conduct of the Appellant howsoever which gave rise to the action, even as being suggested here by the learned counsel for the Respondents. See Amadi v. NNPC (2000) 6SC (pt.l) 66; Inakoju v. Adeleke (2007) 4 NWLR (PT.1025) 423.” PER S.GALADIMA, J.S.C
LIMITATION LAW – EFFECT OF A LIMITATION LAW
“It is settled law that a limitation law, such as the provisions of section 2 (a) of the Public Officers Protection Act, takes away the legal right of a litigant to enforce an action leaving him with an empty shell of a cause of action where the action is not instituted within the time frame enacted in the statute of limitation.” PER W.S.N. ONNOGHEN,J.S.C.
STATUTE BARRED ACTION – A STATUTED BARRED ACTION CANNOT BE MAINTAINED AS IT ROBS THE COURT OF ITS JURISDICTION TO ENTERTAIN SAME
“Where the action is instituted outside the time so allotted by the statute, we say that the action so instituted is statute -barred and cannot be maintained since it robs the court of the jurisdiction to entertain and determine same.” PER W.S.N. ONNOGHEN, J.S.C.
JURISDICTION – IMPORTANCE OF JURISDICTION
“Jurisdiction is the bedrock of any judicial proceeding and its absence or defect renders any proceeding a nullity notwithstanding that it was well conducted. See Madukolu v. Nkemdilim (1962) All NLR 587; Aaron Nfionadi v. Clement Ezenwosu (1988) 6 SCNJ 88 at 95-96.” PER N.S.NGWUTA, J.S.C.
FRESH ISSUE ON APPEAL – A FRESH ISSUE ON APPEAL MUST BE RAISED WITH THE LEAVE OF COURT
“The issue of a continuance of injury is a fresh issue which the respondents as plaintiffs cannot raise without leave of Court first sought and granted.” PER N.S. NGWUTA, J.S.C.
RAISING AN ISSUE SUO MOTU – WHERE PARTIES ARE NOT GIVEN OPPORTUNITY TO ADDRESS THE COURT ON ISSUES RAISED SUO MOTU, SUCH ISSUE CANNOT FORM THE BASIS OF ANY DECISION
“When a Court raises an issue suo motu as was done in this case, the issue so raised cannot form the basis of any decision if Counsel to the parties are not given the opportunity to address the Court on it. See Ugo v. Obiekwe (1989) 2 SC (Pt. 11) 41; Shasi & Anor v. Smith & 2 ors (2009) 12 SC (Pt. Ill) 1.” PER N.S.NGWUTA, J.S.C.
CONCURRENT FINDING OF FACT OF LOWER COURTS – ATTITUDE OF APPELLATE COURTS TO CONCURRENT FINDING OF FACT OF LOWER COURTS
“While this Court does not, in principle and practice, make a habit of disturbing a concurrent finding of fact of the two Courts below, it will not hesitate to interfere where it has reason to do so in the interest of justice.” PER N.S.NGWUTA, J.S.C.
LOCUS STANDI – DEFINITION LOCUS STANDI
“Locus standi has been defined severally as the legal capacity to institute proceedings in a court of law; a place of standing or standing to sue. See: Adesanya Vs President of the Federal Republic of Nigeria (1981) 5 SC (Reprints) 69: Thomas Vs Olufosoye (1986) 1 NWLR (1986) 669: A.G. Kaduna State Vs Hassan (1985)2 NWLR (Pt.8) 483: Odeneye Vs Efunuga (1990) NWLR (Pt,.164) 618. Explaining the importance of locus standi in Adesanya's case (supra), M. Bello, JSC (as he then was), (of blessed memory) stated thus at page 95 (supra):
"It is a common ground in all the jurisdictions of the common law countries that the claimant must have some justiciable interest which may be affected by the action or that he will suffer injury or damage as a result of the action. ... In the final analysis, whether a claimant has sufficient justiciable interest or sufferance of injury or damage depends on the facts and circumstances of each case."
LOCUS STANDI –LEGAL CONCEPT OF LOCUS STANDI
“ In A.G. Kaduna State Vs Hassan (supra) at 524 G Oputa, JSC stated:
"The legal concept of standing or locus standi is predicated on the assumption that no court is obliged to provide a remedy for a claim in which the applicant has a remote, hypothetical or no interest."
The legal consequence of lack of locus standi is that the court would lack the jurisdiction to entertain the plaintiff's claims and the suit would be liable to be struck out. See: Madukolu Vs Nkemdilim (1962) 2 SCNLR 341.” PER K.M.O.KEKERE-EKUN, J.S.C
LIMITATION LAW - EFFECT OF A LIMITATION LAW
“The effect of a limitation law such as the Public Officers' Protection Act (supra), as has been stated in numerous decisions of this court is that it deprives the court of jurisdiction to entertain a matter instituted outside the limitation period and it also forecloses a litigant's right to enforce a cause of action, which he might otherwise have had, once the stipulated time for bringing the action has elapsed. The right becomes extinguished by effluxion of time. See: Egbe Vs Adefarasin (1987) l NWLR (Pt.47)1: Ibrahim Vs J.S.C (1998) 14 NWLR (Pt.584)1: Ajayi Vs Adebiyi (2012) 11 NWLR (Pt.1310) 137: Alhaii Ado Ibrahim Vs Alhaji Maigida U. Lawal & Ors. (2015) LPELR - SC.99/2009 delivered on 5/6/2015.” PER K.M.O.KEKERE-EKUN, J.S.C
CONTINUANCE OF THE DAMAGE OR INJURY – MEANING OF CONTINUANCE OF THE DAMAGE OR INJURY
“The continuance of the damage or injury constitutes an exception to the general rule. It was held in: Obiefuna Vs Okoye (1961) All NLR 357 @ 360 that:
"Continuance of injury or damage means continuance of the legal injury and not merely continuance of the injurious effects of a legal injury."
See also: Olaosebikan Vs Williams (1996) 5 NWLR (Pt.449) 437 @ 456 — 457 D — H.” PER K.M.O.KEKERE-EKUN, J.S.C
SECTION 2(A) OF THE PUBLIC OFFICERS PROTECTION ACT – PRINCIPLE OF SECTION 2(A) OF THE PUBLIC OFFICERS PROTECTION ACT
“The general principle of Section 2(a) of the Public Officers Protection Act is that where a statute provides for the institution of an action within a prescribed period, the action shall not be brought after the time prescribed by such statute. Any action that is instituted after the period stipulated by the statute is totally barred as the right of the plaintiff or the injured person to commence the action would have been extinguished by such law. What this means in effect is that the Limitation Act or Law removes the right of action of a plaintiff, his right of enforcement and right of judicial relief leaving him with a bare and empty cause of action which he cannot enforce by judicial process. It is statute barred. See Egbe V. Adefarasin (1987) 1 NWLR (pt. 47) I, Military Administrator Ekiti State V. Aladeyelu (2007) 14 NWLR (pt. 1055) 619, Hassan V. Aliyu (2010) 17 NWLR (pt. 1223) 547, P. N. Udoh Trading Co. Ltd. V. Sunday Abere & Anor. (2001) 11 NWLR (pt. 723) 114, Alhaji Ado Ibrahim V. Alhaji Maigida U. Lawal & Ors (2015) LPELR - SC. 99/2009 delivered on 5th June, 2015.” PER J.I.OKORO, J.S.C
STATUTE REFERRED TO:
Public Officer Protection Act Cap. P.41 Laws of the Federation of Nigeria 2004
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Happy Kingsley Idemuda V. The State
(Supreme Court - July 3th, 2015)
Legalpedia ELectronic Citation: LER[2015] SC. 59/2005
Areas of Law
APPEAL, COURT, CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
Summary of Facts
The facts leading to this appeal was that the Appellant in this case was arraigned before the High Court, Delta State, Isiokolo Judicial Division on a two count charge of conspiracy to commit armed robbery and attempted armed robbery punishable under section 1(2)(a) and section 2(2)of the Robbery and fire arms (Special Provisions) Act Cap. 398 Vol. 221, LFN 1990. The Appellant pleaded not guilty to both charges and raised the defence of Alibi in the extra-judicial statement made to the police, the police however failed to investigate the alibi raised and at the end of the trial, he was found guilty on both counts and accordingly sentenced to 14 years imprisonment. Against this judgment, the Appellant lodged an unsuccessful appeal to the Court of Appeal, Benin Judicial Division where the judgment of the trial court was affirmed. Further aggrieved, the Appellant lodged this appeal at the Supreme Court.
Held
Appeal Allowed.
Issue for determination
- Whether from the totality of the evidence on record, especially the evidence of P. W. 2 and the alibi raised by the appellant, the lower court was right in affirming the conviction of the appellant by the trial court for the offences of conspiracy to rob and attempted armed robbery?
RationesEVIDENCE OF A WITNESS – DUTY OF A COURT TO BE CAUTIOUS WHEN CONSIDERING THE EVIDENCE OF AN EYE WITNESS WHO OMITS TO MENTION AT THE EARLIEST OPPORTUNITY THE NAME(S) OF THE PERSON(S) SEEN COMMITING AN OFFENCE
“The principle of law as laid down and which must guide a court faced with the evidence of a witness fixing an accused person at the scene of crime is settled that, such a witness must have mentioned the name of the accused person or given a description to the police at the earliest opportunity time, especially where the witness claims to have known the accused person prior to the occurrence of the incident. In other words, where an eye witness omits to mention at the earliest opportunity the name or names of the person or persons seen committing an offence, a court must be cautious in accepting his evidence later and implicating the person or persons charged, unless a satisfactory explanation is given. The reason is obvious because such delay is likely to expose to question the evidence of identity and thereby raising uncertainty as to its acceptability and probative value. See the cases of Abudu V. State (1995) 1 NWLR page 55, also Abdullahi V. State (2008) All FWLR (Pt. 432) p. 1047 at 1057.”PER C.B.OGUNBIYI,
CRIMINAL TRIAL – FACTOR A COURT MUST TAKE INTO CONSIDERATION WHERE THE EVIDENCE AGAINST THE ACCUSED PERSON IS BASED PRIMARILY ON RECOGNITION BY ONE OF THE VICTIMS
“It is trite law that one of the major factors that a court must take into consideration in a trial of this nature where the evidence against the accused person is based primarily on recognition by one of the victims who claimed to have known the accused person is, whether the victim mentioned the name of the accused person to the police at the earliest opportunity. See the case of Bozin V. State (1998) A.C.L.R page 1 at page 18 where Aniagolu, JSC said:-
"If the appellant whom those witnesses knew very well before the incident took part in the robbery of those witnesses that night, would the witnesses not have mentioned him by name, or by description, immediately the police came in a van that night in answer to their telephone call? Would the course of human conduct not impel the witnesses to tell the police that night of the involvement of the appellant, who was said to be unmasked, in the robbery? I am firmly of the view that the failure of those witnesses to mention the appellant to the police that night at the first opportunity, cast a grave doubt on their evidence that they saw the appellant that night in the act of robbery".
The same principle was also adopted in the later case of Ani V. State (2009) All FWLR (Pt. 482) 1044 at 1062 -1063.” PER C.B.OGUNBIYI, J.S.C
ALIBI – MEANING OF ALIBI
“Alibi as a defence presupposes that the accused does not only claim that he never committed the offence alleged, but that he was not at all at the locus delict. The Black's Law Dictionary Ninth Edition by Bryan A. Garner at page 84 defines alibi, a Latin word "elsewhere" in the following terms:
"A defense based on the physical impossibility of a defendant's guilt by placing the defendant in a location other than the scene of the crime at the relevant time.……………. The fact or state of having been elsewhere when an offence was committed.” PER C.B.OGUNBIYI, J.S.C
ALIBI – AN ALIBI MUST BE INVESTIGATED THOROUGHLY
“The law is trite and well established that in an offence requiring physical presence, an alibi set up by the accused person must be investigated thoroughly by the police. The alibi must be definite as to time, place and the persons who know about the accused's where abouts. Once an alibi is timeously raised, it must not be treated lightly because the onus is on the prosecution to disprove it. See Yanor V. State (1965) NMLR 337 and Chukwu V. State (1996) 7 NWLR (Pt. 463) 686 at 702.” PER C.B.OGUNBIYI,
PLEA OF ALIBI - A PLEA OF ALIBI IS DEMOLISHED IF THE PROSECUTION ADDUCES SUFFICIENT EVIDENCE TO FIX THE ACCUSED PERSON AT THE SCENE OF CRIME AT THE MATERIAL TIME
“In a further authority of the case of Onuchukwu V. State (1998) 58 LRCN 3393 at 3409 which was cited by the respondent's counsel, it was held that:
"A plea of alibi is demolished if the prosecution adduces sufficient evidence to fix the accused person at the scene of crime at the material time, See also the cases of Ozaki V. The State (1990) 1 W.B.R.N 55, Ikemson V.The State (1989) 3 NWLR (Pt. 110) 455, Balogun V. A.G Ogun State (2002) 94 L.R.C.N 2060 and also Esangbedo V. State (1998) A.C.L.R. 109.” PER C.B.OGUNBIYI, J.S.C
PROOF OF ALIBI –DUTY OF A PARTY IN ESTABLISHING THE DEFENCE OF ALIBI
“The position of the law is again well settled that the appellant is not obliged to prove his alibi. It is enough if he supplies material facts sufficient for the police to investigate the defence raised. In order to establish the defence, all that the accused needs do is merely to put forward evidence accordingly; the onus is not on him to prove such defence but on the prosecution to disprove it. Again see Abudu V. State (supra) at 59 where this court in a similar situation found the evidence against the appellant equally unreliable and unsafe; it was held therefore that the case against him was not proved beyond all reasonable doubt, and he was therefore entitled to that benefit. Coker, JSC in delivering the lead judgment had this to say at page 59 of the report:-
"I agree with this statement of the law. He also stated the law as regards alibi, citing amongst other cases, Yanor& Anor. V. The State (1965) NMLR 337 and Christian Nwosisi V. The State (1976) 6 SC. 109, Akpan V. The State (1973) 5 SC 231. He concluded by stating page 55.
"From the foregoing, it is clear that the person who puts forward an alibias his answer to a charge does not undertake upon himself any burden of proving that answer, and it is a mis-statement of the law or in fact a misdirection to refer to any burden of proof resting on an accused in such a case. See R. V. Anthony Hugh Johnson (1962) 46 C.A.R. 45." PER C.B.OGUNBIYI, J.S.C
DEFENCE OF ALIBI – DUTY OF A COURT TO CONDUCT IDENTIFICATION WITH GREAT CARE WHEN THE SOLE DEFENCE IS AN ALIBI
“In Ikono V. State (2007) 5 ACLR 319 this court held also that when the sole defence is an alibi, identification by a single witness must be conducted with great care.” PER C.B.OGUNBIYI, J.S.C
ALIBI – DUTY OF THE PROSECUTION AND ACCUSED PERSON IN A DEFENCE OF ALIBI
“Alibi means elsewhere. It is the duty of the prosecution to investigate same. It is the duty of the accused to furnish particulars of the alibi. He must furnish his whereabouts and those present with him at the material time of the incident. It is left for the prosecution to disprove same. Failure to investigate will lead to acquittal. See Yanor vs. The State (1965) NMLR 337; Gachi vs. The State (1973) I NMLR 331; Odu & Anr. vs. The State (2001) 5 SCNJ ll5 at 120; (2001) 10 NWLR (pt. 772) 668.” PER J. A. FABIYI, J.S.C.
PROOF – THE DUTY IS ON THE PROSECUTION TO PROVE THE CHARGE AGAINST AN ACCUSED PERSON BEYOND REASONABLE DOUBT
“It is basic, that it is the duty of the prosecution to prove the charge against the appellant beyond reasonable doubt. See Woolmington v. DPP (1935) AC 462, Akalezi vs. The state (1993) 2 NWLR (pt. 273) I at 13; Nasiru vs. The State (1999) 2 NWLR (Pt. 589) 87 at 98.” PER J. A. FABIYI, J.S.C.
DEFENCE OF ALIBI – DUTY ON THE PROSECUTION TO INVESTIGATE AND REBUT THE DEFENCE OF ALIBI WHEN RAISED BY AN ACCUSED PERSON
“It is already settled law, that the accused raises the defence of alibi when he introduces an evidence leading to that conclusion. Therefore, once an alibi is raised by an accused, the burden is on the prosecution to investigate and come up with a rebuttal of such evidence in order to prove the case, as required, beyond reasonable doubt. See; Adedeji Vs. The State(1971) 1 All NLR 75. However, it is the duty of the accused person who is relying on defence of alibi to give details of the alibi he sets up to enable the prosecution carry out investigation of his said whereabout. His said duty involves letting the police know at the earliest opportunity where and with whom he was at the material time. See; Udo Akpan Vs. The State (1986) 3 NWLR (Pt.27) 258 relied on in Mathew Obakpolor Vs. The State (1991) l NWLR (Pt.165) 113; (1991) 1 SCNJ 91; (1991) I SC (Pt.1) 35.” PER O. ARIWOOLA, J.S.C.
BURDEN OF PROOF- DUTY ON THE PROSECUTION TO DISPROVE THE DEFENCE OF ALIBI WHEN THE ACCUSED PERSON DISCHARGES THE EVIDENTIAL BURDEN OF PROOF
“As earlier stated, it is already established that once an accused person discharges the evidential burden on him of adducing evidence of his being somewhere else on the particular time of the commission of an alleged crime, the onus is on the prosecution to disprove it. It is however equally true and established that there is a duty on the trial Judge to test the alibi raised by the accused in defence against the evidence adduced by the prosecution. See; Sunday Okoduwa Vs. The State (1988) NWLR (Pt.1 6) 333.” PER O. ARIWOOLA, J.S.C.
DEFENCE OF ALIBI – EFFECT OF FAILURE OF THE PROSECUTION TO INVESTIGATE THE DEFENCE OF ALIBI AS SET UP BY AN ACCUSED PERSON
“Ordinarily and this has long been settled that the Police are not expected to go on a wild goose chase, in order to investigate an alibi. It behoves on the accused person setting up alibi as a defence to give to the Police at the earliest opportunity some tangible and useful information relating to the place and the person with whom he was. But failure of the Prosecution to investigate an alibi set up by the accused is tantamount to an admission of the story. See; Yanor Vs. The State (1965) NMLR 387; Ozulonye Vs. State (1981) 1 NCR 381; Bozin Vs State (1985) 2 NWLR (Pt.8) 465.” PER O. ARIWOOLA, J.S.C.
DEFENCE OF ALIBI- BASIS OF THE DEFENCE OF ALIBI
“After all, the defence of alibi rest on the jurisprudential postulate of the physical impossibility of an accused persons involvement in a crime when he was elsewhere, other than the scene of the crime, at the relevant time, that is, when the alleged offence took place, Attah v The State (2010) LPELR -597 (SC) 33, A-C.” PER C. C. NWEZE,
STATUTE REFERRED TO
Robbery and fire arms (Special Provisions) Act Cap. 398 Vol. 221, LFN 1990.
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