Mount Zion Chambers

26/12/2022

*HIGH COURT OF ENUGU STATE DECLARED THE OPERATIONS OF THE VIO IN ENUGU STATE ILLEGAL.*

The High Court of Enugu State presided over by Hon. Justice Egumgbe on 21st December 2022 declared the operations of the VIO in Enugu State illegal.

Full news 👇🏾

The High Court of Enugu State presided over by Hon. Justice Egumgbe on 21st December 2022 declared the operations of the VIO in Enugu State ...

30/10/2022

⚖️ ATM IS LIKE A CHEQUE AND FAILURE TO DISPENSE CASH IS A BREACH OF BANKER/CUSTOMER DUTY 📌

MOSES JWAN V ECOBANK (2021) 10 NWLR (Pt. 1785) 449 (CA)

The Court of Appeal has held that failure of bank to pay a customer through the ATM when the customer has enough money in the account is a breach of duty of care and contract. The customer is s entitle to damages. ⚖️

The Court of Appeal in the case of in the case of MOSES JWAN v. ECOBANK*(2021) 10 NWLR (Pt. 1785) 449 at 485 per Aliyu, JCA held,

"The ATM card issued by a bank being akin to a cheque, must be honoured on request once there is enough funds in the customer's account, and failure to do that mean the bank is in breach of duty of care owed to it's customer."

Consequently, the Court of Appeal awarded the sum of N500,000.00 (Five hundred thousand Naira) general damages against ECOBANK for failure to pay its customer the sum of N10,000.00 (Ten thousand Naira) through the Bank's ATM.

Now you know your rights.

It remains for Banking services to improve and for aggrieved customers to take advantage of the decision of the Court of Appeal to pursue their legitimate rights.

02/09/2022

*The Court of Appeal has held that lawyers in private practice are under a legal compulsion to collect VAT from clients and remit same to FIRS. Where in default, a penalty at the rate of #10,000 per month shall be paid by a defaulting lawyer for the first one month, and sum of #5,000 per month for the subsequent months. See AL-MASEER LAW FIRM vs. FIRS. (2019) 12 NWLR) ( part 1687)555 @573. This obligation becomes enforceable against a law firm within 6 months of commencement of business.*

15/05/2022

PAYMENT OF IMPORT DUTY ON GOODS/PERSONAL EFFECTS CONTAINED IN A PASSENGER'S BAGGAGE IS UNLAWFUL

On Wednesday, 13th May, 2020 the Federal High Court, Abuja Judicial Division [Coram: J.T.Tsoho, CJ] delivered its judgment in Kehinde Ogunwumiju, SAN v. Nigerian Customs Service Board & Anor: Suit No: FHC/ABJ/CS/1113/2019.

The Plaintiff (Kehinde Ogunwumiju, SAN) via his counsel Tunde Ahmed Adejumo, Esq had approached the Court via an Originating Summons primarily seeking a declaration that in view of the provisions of Section 8 of the Customs, Excise Tariff, etc. (Consolidation) Act and the 2nd Schedule to the Customs, Excise Tariff, etc. (Consolidation) Act, it was unlawful for officers of the Nigerian Customs Service to have demanded and collected import duty and other related charges from the Plaintiff in respect of his personal effect (A Louis Vuitton Lap Top Bag) found in his baggage following a search by the officers of the Nigerian Customs Service upon his arrival at the Nnamdi Azikwe International Airport, Abuja on the 24th June, 2019.

The Court in its judgment having analysed the provisions of Section 8 of the Customs, Excise Tariff, etc. (Consolidation) Act and the 2nd Schedule to the Customs, Excise Tariff, etc. (Consolidation) Act was of the view that the following goods are exempted from import duty and other related charges:

1. Goods contained in a passenger’s baggage provided that the said goods are not intended for sale, barter or exchange; and
2. Personal and household effects.

The Court found that based on the state of the evidence before it, the Plaintiff had established that the Louis Vuitton Lap Top Bag found in his baggage by the officers of the Nigerian Customs Service was his personal effect and meant for his personal use.

The Court also found that before the Defendants could lawfully demand and collect import duty and other related charges in respect of the said Louis Vuitton Lap Top Bag found in the Plaintiff’s baggage, the Defendants had to establish via cogent and credible evidence that the said bag was meant for sale, exchange or barter.

Accordingly, the Defendants having failed to establish via evidence that the said bag found in the Plaintiff’s baggage was meant for sale, exchange or barter, there was no legal basis upon which the officers of the Nigerian Customs Service demanded and collected import duty and other related charges from the Plaintiff in respect of the said bag.

Finally, the Court having found that the decision and action of the Defendants to demand and collect from the Plaintiff import duty and other related charges in respect of his personal effect is unlawful, null and void ordered the Defendants to refund the sum of N156, 955. 20k (One Hundred and Fifty-Six Thousand, Nine Hundred and Fifty-Five Naira, Twenty Kobo) in import duty and other related charges to the Plaintiff and also to pay to the Plaintiff the sum of N5, 000, 000.00 (Five Million Naira) as exemplary damages.

Following this judgment, it is now unlawful for officers of the Nigerian Customs Service to demand and collect import duty and other related charges from anyone in respect of goods/personal effects found in their baggage provided that the said goods/personal effects are not meant for sale, barter or exchange. In other words, the only instance in which officers of the Nigerian Customs Service can lawfully demand and collect import duty from anyone in respect of goods/personal effects found in their baggage is where it can be established that the said goods/personal effects are meant for sale, barter or exchange.

07/04/2022

Enugu State High Court sets aside policy of no refund of money after payment by service providers.

On 28 July 2021, Patrick C Chukwuma, a legal practitioner with the law firm of Eze, Dimude, Eze & Co filed a suit against Peace Mass Transit Limited challenging the laters policy of "no refund of money after payment".

The incident that led to the suit occured on 10/2/2021 when the Plaintiff purchased a ticket from the Obollor-Afor branch of Peace Mass Transit Limited to convey him to Enugu.

Following a two hours delay occasioned by the absence of passengers, the Plaintiff returned to the ticketing office and asked for a refund of the #500 he paid as the transportation fare.

Staff of the Defendant however refused to refund the money, insisting that their company policy was that money paid for transport fare cannot be returned to the passenger and citing the statement written on their ticket to that effect as conclusive proof of their position.

When Barr. Chukwuma tried to explain to them that their policy was unlawful, as the law mandates them to refund fares for services that have not been provided they retorted in a rude manner, prompting the learned counsel to leave their park and seek alternative means of traveling back to Enugu.

A letter written by the lawyer to Peace Mass Group of companies demanding and apology and refund was neglected prompting the lawyers law firm to institute suit number: E/514/2021 Patrick Chukwunwike Chukwuma v Peace Mass Transit Limited.

The suit asked the court to determine a sole question which was "whether the Defendant's policy of "no refund of money after payment" is in violation of Section 120 of the Federal Competition and Consumer Protection Act 2018 especially when the contractual obligation to convey the Plaintiff to his preferred location was terminated".

The Plaintiff through his team of lawyers led by Barr. Tochukwu Odo amongst other grounds argued that the Federal Competition and Consumer Protection Act 2018 is the primary law on questions of consumer transaction in Nigeria and that by virtue of section 120 of the law, the consumer has a right to cancel any advance booking, reservation or order for any goods or services subject only to the deduction of a reasonable charge by the service provider.

The Defendant through their counsel Barr Titus Odo raised technical arguments on the jurisdiction of the court and mode of commencement of the suit.

Hon. Justice C. O. Ajah of the High Court of Justice in his judgment delivered on 7 April 2022, promptly dismissed the objections of the Defendant and upheld the arguments of the Plaintiff.

The Hon. Judge after a thorough analysis of the provisions of the Federal Competition and Consumer Protection Act 2018 vis a vis the conduct of the parties in the case decided that indeed the policy of no refund of money after payment is illegal, null and void in light of the provisions of Sections 120, 104, 129(1)(a) and (b) (iii) of the Federal Competition and Consumer Protection Act 2018.

The court thereafter made a declaration that the refusal of the Defendant to refund the Plaintiff the money paid for the transportation fee from Obollor-Afor to Enugu on 10/2/2021 is unlawful.

The court further ordered the Defendant to pay the sum of #500,000 as damages to the Plaintiff. This case puts service providers on notice that more Nigerians are now alive to their rights as citizens and will not hesitate to enforce same should the need arise. It also puts an end to the menace of service providers who collect money from consumers and refuse to refund same when they don't offer the services for which the money was collected on the first place.

01/08/2021

WHETHER THE DRIVER OF A VEHICLE CAN BE HELD LIABLE FOR FAILURE TO FASTEN A SEATBELT BY A PASSENGER IN HIS VEHICLE
CASE TITLE: FEDERAL ROAD SAFETY COMMISSION & ORS v. BARR. OSUOBENI EKOI AKPOS (2021) LPELR- 52917(CA)
JUDGMENT DATE: 9TH FEBRUARY, 2021
JUSTICES: PETER OLABISI IGE, JCA
YARGATA BYENCHIT NIMPAR, JCA
MOHAMMED BABA IDRIS, JCA
COURT DIVISION: ABUJA
PRACTICE AREA: Government Agency- Federal Road Safety Commission

FACTS:
The Respondent was accosted by the officers of the Federal Road Safety Commission while he was in transit on the 1st of June, 2012. The Road Safety officers demanded his vehicle papers which he presented to them and the officials returned same to him after finding them up to date.

However, as the person who was sitting in the passenger seat was alighting from the vehicle, the officials claimed he did not have his seat belt fastened on and despite his explanation to the contrary, they demanded for the Respondent’s vehicle documents a second time.

While he was trying to present the papers, one of the FRSC officers snatched them from him and in the process tore the particulars. This caused the Respondent to introduce himself as a lawyer, which only infuriated the officers more. They then forced him back into the car and took him to their office where they deflated the tyres, impounded the car and again started beating him for disobeying an officer on duty.

The Respondent subsequently commenced an action against the Appellants via a Writ of Summons, claiming against the Appellants for a declaration that the continuous seizure of the Respondent’s Honda Rover car at the FRSC office by the Appellants amounts to detinue in law, an Order of Court commanding the Appellants to release the car unconditionally to the Respondent, the sum of Fifty Million Naira as general damages for detinue and the sum of Two Million Naira as cost of litigation.

The High Court found against the Appellants and granted the reliefs sought by the Respondent.

Dissatisfied with the decision of the trial High Court, the Appellants appealed.
ISSUE(S) FOR DETERMINATION:
The appeal was determined upon consideration of the following issues:

1. Does the High Court of the Federal Capital Territory have jurisdiction to entertain relating to the impoundment and detention of his car by Appellants as the act of impounding of his vehicle is an administrative act of the 1st Appellant, which is an agency of the Federal Government of Nigeria?

2. Was the trial Court right in holding that there was no basis for the issuance of Notice of Offence sheet on the Respondent notwithstanding that Regulation 58(4) of National Road Traffic Regulation, 2004 made pursuant to Section 5(1) of Federal Road Safety Commission (Establishment) Act, 2007 placed the duty on the driver of a vehicle to ensure that all passengers in the vehicle have their seat-belts firmly fitted while the vehicle is in motion?

3. Assuming without conceding the trial Court had jurisdiction to entertain the suit, was the trial Court right in granting the damages of N5 Million as damages for tort of detinue against the Appellants.

4. From the evidence placed before the trial Court by the Respondent, was the trial Court right in awarding the sum of N1 Million for assault and battery (“merciless beating”) of the Respondent.

5. Was the trial Court right in dismissing the Counterclaim of the Appellants without recourse to the evidence before it.

The Appellants’ Counsel submitted that the High Court of the FCT lacked jurisdiction to entertain the Respondent’s claim relating to the impounding and detention of his car by the Appellants as the act of impounding of his vehicle is an administrative act of an agency of the Federal Government of Nigeria and any action challenging its administrative act can only be instituted at the Federal High Court.

It was also argued that it is the responsibility of the Respondent to ensure that any passenger in his car is wearing a seatbelt, failure of which amounts to an offence and the FRSC Act has empowered the Commission and its officers to impound vehicles of persons reasonably suspected of committing such offences.

On the other hand, the Respondent’s Counsel contended that the reliefs sought by the Respondent are purely based on the law of tort of detinue, assault and battery over which the High Court of the FCT definitely has jurisdiction. ​

The Respondent’s Counsel contended further that the Appellants’ counterclaim is a separate action on its own and over which they were expected by law to lead evidence in proof and can only succeed on the strength of their case.

The Appellants did not prove by evidence how they arrived at the sum claimed as fine in the counterclaim which is in the realm of special damages and ought to be pleaded, particularized and proved mathematically by the Counter Claimants.

DECISION/HELD:
In conclusion, the Court found the appeal unmeritorious and thereby dismissed the same. Consequently, the judgment of the Federal Capital Territory High Court was affirmed.

RATIO
GOVERNMENT AGENCY- FEDERAL ROAD SAFETY COMMISSION: Instance where the Federal Road Safety Commission will be held to have no basis for issuing a notice of offence sheet –

“The Appellants under issues 2 and 3 challenged the finding that there was no basis for the Notice of offence sheet issued on the Respondent notwithstanding Regulation 58 (4) of the National Road Traffic Regulations, 2004 made pursuant to Section 5 of the Federal Road Safety Commission Act, 2007.

It places on a driver of a vehicle to ensure that all passengers in the vehicle have their seat belts firmly fitted while the vehicle is in motion… There is no doubt that the Regulations are subsidiary laws which have to be obeyed. It was duly made and there is no issue as to its legitimacy.

The question answered by the trial Judge was whether there was an infraction to warrant the Notice. Of course, the Appellants could in the face of a breach issue Notice of offence and also impound vehicles by which an offence was committed. See Section 10(5)H and ESEKHAIGBE V FEDERAL ROAD SAFETY COMMISSION (2014) LPELR-24388(CA)…

The Appellants in seeking to overturn the findings must find in the record of appeal evidence that makes the finding of the trial Court perverse. In an attempt to do so, the Appellants relied on the evidence of the sole witness called by the Appellants and particularly when he said the person in the front seat in the Respondent’s car did not have his seat belt on and this was denied by the person who testified as CW2 and also CW1, the Respondent.

Both of them explained that the passenger unbelted himself while attempting to get out of the car when the altercation started between the parties. The trial Court believed the evidence of the Claimant.

The aspect not denied is the fact that the Appellants did not deny that the passenger actually came out of the car.

Assuming the passenger did not have his seat belt on, should the liability of breaching the regulation be transferred from the person who was unbelted to the driver of the car who had his seat belt on?

The quoted Section 10(4), the basis of the Appellants’ contention says: “Driving a vehicle not fitted with seat belt or were fitted, not wearing same while the vehicle is in motion.”

I agree with the Respondent that in interpreting the above-quoted provision the words must be given its literal meaning where the words are clear…There is therefore nothing in the said provisions that makes the driver of the car responsible for the infraction of a passenger. It is merely the convenience of the 1st Appellant to want to make a driver liable because he owns or the vehicle is under his control. Criminal liability is not transferable, see what the apex Court said in PML (NIG) LTD V FRN (2017) LPELR-43480(SC) thusly: “

…it will not be a valid defense in law for any person, who is alleged to have committed an offence to argue that while committing that offence he was acting as an agent of a principal since it is not a defense that is known to law.

Very true; criminal liability is personal; it cannot be transferred because the mens rea or actus reus is on the accused in Court – See Akpa v State (2008) 14 NWLR (pt. 1106) 72.” Per AUGIE, J.S.C.

Therefore, even if the Respondent in answer to a question under cross-examination referred to the CW2 as the offender, it cannot translate to him being the offender since the regulations did not say in case any passenger in a car found not to have his seat belt on, the person driving will be liable. Therefore, the transferred liability leading to the struggle was wrong and not supportable in law…

The Appellants also relied on Regulation 58(4) of the National Road Traffic Regulations, 2004 which states as follows: “The driver of any vehicle shall ensure that all passengers in the vehicle have their seat belts firmly fitted while the vehicle is in motion.”

The point at which the purported Notice of offence was issued the vehicle was not in motion. Agreed that it places the responsibility of ensuring that passengers in a vehicle have their seat belts fastened on the driver. In any case, this was not the Section relied upon by the Appellants in booking the Respondent…” Per NIMPAR, J.C.A.

09/07/2021

*Magistrates lack power to freeze bank accounts – Court*

The Federal High Court in Abuja has declared that magistrate’s courts lacked the power to issue an order freezing bank accounts.

The court also ordered banks to desist from acting on “bankers order” served on them, particularly by the police, to freeze or place a post-no-debit order accounts on personal accounts.

Justice Inyang Ekwo made the declaration in a judgment in a suit marked FHC/ABJ/CS/1635/2019 on Tuesday.

The suit was instituted by five children of the late Chief E. A. Esiso against one of their siblings, Yoma Esiso, four banks which had frozen their bank accounts, the Inspector-General of Police and the Commissioner of Police in charge of the IGP Monitoring Unit.

The five siblings who were the plaintiffs who instituted the suit are Mrs Eunice Oddiri, Beauty Ogbodu, Chief Sunny Esiso, Edirin Esiso, and Mrs Emuobosa Consin.

They stated in their suit that in September 2019 one of the landed assets of their late father in Port Harcourt, Rivers State, was sold and the proceeds were shared among the deceased’s children, including Yoma.

Yoma was said to have petitioned the police after which his five siblings were arrested and detained.

The plaintiffs were later released on bail but realised that their accounts had been frozen by their various banks which claimed to have received letters authorising them to so do from the office of the Inspector General of Police and the Commissioner of the Police in charge of the IGP Monitoring Unit.

The banks said the letters from the IGP office were accompanied with a document called a Bankers Order from a magistrates’ court, ordering the freezing/post no debit on the accounts.

The plaintiffs on December 24, 2019 sued their banks – Zenith Bank Plc, Stanbic IBTC Bank, Guarantee Trust Bank and First Bank Place – along with the IGP, the IGP Monitoring Unit, and Yoma.

They contend among others in their suit that that the order to freeze/post-no-debit obtained from the magistrate’s court and placed on their accounts on the strength of a non-existent law was illegal null and void.

Only GTB filed processes in response to the suit, while the rest of the defendants did not.

But in his judgment, Justice Ekwo ruled that GTB failed to effectively controvert the case of the plaintiffs as he held that there was no existing Nigerian law or relevant foreign law empowering magistrates to make such an order for freezing of persons’ accounts.

He therefore declared that “the Bankers Order/Order freezing and/or enabling the post-no-debit” on the listed accounts of the plaintiffs “cannot be validly issued pursuant to a non-existent/repealed Bankers Order Act 1847 and any other irrelevant foreign law”.

The judge also ruled that “a Magistrate lacks the powers to make Bankers orders and/or order freezing or enabling a post no debit on bank accounts pursuant to non-existent/repealed section 7 of the Banker‘s Order Act 1847.”

The judge therefore ordered the four banks “to unfreeze the accounts of the plaintiffs and desist from further giving effect to the non-existent Bankers order served on the prompting of the 5th and 6th defendants (IGP and the IGP Monitoring Unit).”

09/07/2021

This a departure from the former position of law, pls find time and read. THE DEATH OF AN ACCUSED PERSON, NO LONGER TERMINATE HIS TRIAL OR APPEAL.

ABATEMENT OF ACTION IN CRIMINAL MATTERS AND THE RECENT EXECEPTION CREATED BY THE SUPREME COURT IN RE: ABDULLAHI (2018) 14 NWLR (PT. 1639) 272.

Under Nigerian law, the constitutional right of appeal against a conviction and sentence is considered a personal right which can only be exercised by the accused person or the prosecution. Same cannot, be exercised by any other person, transferred or inherited. See Section 243(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Section 233(5) of the 1999 Constitution of the Federal Republic of Nigeria (pre 1st, 2nd & 3rd alterations).

Therefore, upon the death of an accused person during his trial or appeal, the proceedings terminate. This is summed up in the Latin maxim ‘’action personalis moritur cm persona’’, which means a personal right of action dies with the person.

However, the above-stated position of our law has been modified in the recent decision of the Supreme Court in the case of ABDULLAHI (2018) 14 NWLR (PT. 1639) 272.

BRIEF FACTS OF THE CASE

The General Court Martial (GCM) tried and convicted the Appellant on 5 out of the 6 counts charge. In addition to a sentence of 2 years imprisonment, the GCM ordered the forfeiture of the Appellant’s landed property located in Abuja.

Thereafter the Army Council confirmed the Appellant’s conviction and reduced his terms of imprisonment to 1 year. The Army Council also ordered the Appellant to refund the sum of N33, 500, 000.00 (Thirty Three Million, Five Hundred Thousand Naira) to the Nigerian Armed Forces within 90 days from the date of confirmation of the sentence. The Army Council further directed that the Appellant’s personal property be confiscated to recover the said sum if he failed to pay same within the prescribed period.

Dissatisfied with the decisions of the GCM and the confirmation of same by the Army Council, the Appellant brought an appeal before the Court of Appeal.

In its judgment, the Court of Appeal affirmed the decisions of the GCM as confirmed by the Army Council and ordered the forfeiture of the Appellant’s landed property in Abuja.

Still aggrieved, the Appellant appealed to the Supreme Court. Unfortunately, while his appeal was pending he passed away.

Subsequently, his wife and his son as administrators of his estate brought an application before the Supreme Court craving an order of the Apex Court substituting them for the Appellant. The scope of the application was limited to prosecuting ground 9 of the Notice of Appeal which complained against the order of forfeiture of the Appellant’s landed property in Abuja.

The Respondents objected to the said application. The primary ground of their objection was that the appeal did not survive the deceased; hence the Applicants cannot inherit/substitute into the said criminal appeal. The Respondents’ position was that there was no basis for the said application under Nigerian law.

ARGUMENTS OF THE APPLICANTS

The Applicants conceded that Nigerian law does not contemplate an application of this nature as our laws do not specify what would happen in the event of the death of an accused person while his appeal is pending.

Notwithstanding the above, the Applicants urged the Supreme Court to grant their application based on the principle of law that provides that ‘’where there is a wrong there must be a remedy’’. This is summed up in the Latin maxim ‘ubi jus ibi remedium’’
The Applicants argued that the order of the Court of Appeal wherein the Court ordered the forfeiture of the Appellant’s landed property in Abuja has inflicted injury on the estate of the deceased Appellant which has adversely affected the Applicants.

The property in issue was valued as at 2005 at N83, 100, 000.00 (Eighty Three Million One Hundred Thousand Naira). The Applicants’ position was that forfeiture of the said property as against the use of same to realise the sum of N33, 500, 000.00 (Thirty Three Million, Five Hundred Thousand Naira) from the deceased to the Respondents, deprived his estate (which they are beneficiary of), the benefit of the value of the property less the said sum of N33, 500, 000.00 (Thirty Three Million, Five Hundred Thousand Naira) only due to the Respondents upon the deceased conviction.

The Applicants further argued that even though there is no express provision for the continuation of a criminal appeal upon the Appellant’s death under our laws, considering the facts and circumstances of the case, the Supreme Court has the power to allow the Applicants continue the appeal within the limited scope identified in the application in other to remedy the injury inflicted on the estate of the deceased Appellant.

In support of its position the Applicants relied on the English authorities in REGINA V. ROWE (1955) 1 GB 573; HODGSON V. LAKEMAN (1943) KB 15 and R V. JEFFERIES (1968) 3 ALL ER 238.

ARGUMENTS OF THE RESPONDENTS

The Respondents argued that before the Court can grant an application of this nature, there must be a competent pending appeal. As under our laws, the appeal abated and became moribund with death of the Appellant, the instant application is not predicated on any competent appeal.

The Respondents further argued in opposition to the application that the constitutional right of appeal under Section 233(5) of the 1999 Constitution of the Federal Republic of Nigeria (pre 1st, 2nd & 3rd alterations) against a conviction and sentence is a personal right which can only be exercised by the deceased Appellant. Same cannot be exercised by, transferred or inherited by the Applicants regardless of any interest they might have in the subject matter of the appeal.

In response to the English authorities relied on by the Applicants, the Respondents’ position was that the said decisions are not applicable to the instant application as it was not demonstrated that the English Courts was interpreting provisions of the British constitution which is in pari materia with Section 233(5) of the 1999 Constitution of the Federal Republic of Nigeria (pre 1st, 2nd & 3rd alterations) which has limited the right of appeal to a specific person.

Finally, the Respondents argued that the principle of law that provides that ‘’where there is a wrong there must be a remedy’’ cannot be used to confer jurisdiction on the Court to grant the instant application where no other specific provision of our laws grants the Court such power. The Respondents urged the Court to refuse the instant application as it has no basis in Nigerian law.

HOLDING OF THE COURT

The Supreme Court acknowledged that under our laws ordinarily the death of an accused person brings an end to his trial or appeal and that there is no case law in Nigeria where an Applicant has been substituted for a deceased Appellant in a criminal appeal.

The question that agitated the Court’s mind was whether or not considering the afore-stated position under Nigerian law and the facts and circumstances of this case; the Applicants whose interest are directly affected by the decision of the Court of Appeal in a criminal appeal have any remedy in law?

In determining the application, the Court was of the view that the fact that there is no case law in Nigeria where an Applicant has been substituted for a deceased Appellant in a criminal appeal is not a good enough reason for the Court to refuse the instant application. The Court relied on the obiter of Lord Denning in PARKER V. PARKER (1954) ALL ER 22, wherein, the great jurist held that if the Courts never do anything because it has never been done before, then the law will stand still, while the rest of the world moves on.

The Apex Court found the English authorities in REGINA V. ROWE (SUPRA); HODGSON V. LAKEMAN (SUPRA) and R V. JEFFERIES (SUPRA) cited by the Applicants highly persuasive. The English Courts’ position in the said decisions was to the effect that ordinarily the death of an accused person brings an end to his trial or appeal, however where a representative of a deceased accused person e.g. the executors or administrators of his estate shows a significant interest in the subject matter of the appeal then the Court can allow the said representative continue with the appeal. In REGINA V. ROWE (SUPRA), Lord Goddard CJ gave an example of a situation which is similar to the facts of the instant application where the Court would allow a representative of the deceased accused person to continue the appeal as follows:

‘’If a person is sentenced to pay a fine and dies having appealed, or even if he dies after payment of the fine – it might be immediately afterwards – it may be that the Court would allow executors or administrators to appeal merely on the ground that if the conviction were quashed they could recover the fine for the benefit of the estate of the deceased which they are bound to administer. ‘’

The Court took the position that the appeal might have died with the deceased Appellant, but his estate survived him, and being administrators of the deceased Applicant’s estate, the Applicants have an interest in his estate that lives on, and which cannot be left hanging.

The Court took cognizance of the fact that it is the only Court that can review the decision of the Court of Appeal. The Applicants having alleged a wrong against the decision of the Court of Appeal, refusing this application would be tantamount to denying the Applicants an opportunity to seek redress against the alleged wrong done to them by the decision of the Court of Appeal.

Finally, the Court relied on the above-cited English authorities and the principle of law which provides that ‘’where there is a wrong there must be a remedy’’, in holding that considering the fact that judgment of the Court of Appeal affects the Applicants’ interest in the estate of the deceased Appellant, the justice of the case requires that the application be granted and the Applicants be permitted to continue with the appeal in respect of ground 9 of the Notice of Appeal which complained against the order of forfeiture against the property in issue which formed a part of the deceased Appellant’s estate.

CONCLUSION

Based on the decision of the Apex Court in this case it is no longer automatic that upon the death of an accused person during his trial or appeal, the proceedings terminate.

Where there is a pending criminal appeal before the death of the accused person, the appeal can be taken over and continued by other persons. Provided the said persons can show significant interest in the subject matter of the appeal.