OMC LEGAL

07/11/2022

JEHOVAH WITNESS PARENTS SUE DOCTOR FOR SAVING THEIR CHILD

The Supreme Court in TEGA ESABUNOR & ANOR. VS. DR. TUNDE FAWEYA & 4 ORS (2019) 7 N. W. L. R, PART. 1671, P. 316 @ PP. 340, PARAS. C-G, 344, PARA. C, 347, PARAS. D-E laid this quagmire to rest.

In the aforementioned case, the 2nd Appellant who is a member of JEHOVAH'S WITNESSES CHRISTIAN sect gave birth to little Tega on the 19th April, 1997, at the Chevron Clinic, Lekki Peninsula, Lagos State.

On 11th May, 1997, within a month of his birth, her son fell gravely ill and was taken back to Chevron Clinic. Dr. Tunde Faweya immediately commenced treatment and after administering several medications, the child had poor colour, was convulsing and having difficulty in breathing. Upon proper diagnosis, it was discovered that the child urgently needed BLOOD TRANSFUSION to stay alive.

Surprisingly, the mother and father of the dying child objected to the blood transfusion because their religious belief required them to abstain from blood transfusion.

The Doctor however, did not agree with the parents. He promptly incidented the matter to the Nigeria Police Force on the strength of which the Police filed a Motion ex-parte before the Magistrate Court pursuant to sections 27(1) and 30 of the Children and Young Persons Law, Cap. 25, Laws of Lagos State, 1994, for an order that the Hospital be allowed to do all and anything necessary for the protection of the life and health of the Child and same was granted.

Armed with the Order, the Child was taken away from the parents and the blood transfusion was carried out. After he became well, he was handed over to the parents.

Being irked by the decision of the doctor to carryout the blood transfusion against their wish, the mother filed an action in Court against the doctor, hospital, Commissioner of Police and even the Magistrate that granted the order was made a party. The matter was dismissed both at the High Court and Court of Appeal.

In further dismissing the appeal, the Supreme Court held thus :

"All adult persons have the inalienable right to make any choice they may decide to make and assume the consequences. Accordingly, an adult person who is conscious and in full control of his mental capacity, and is of sound mind has the right to either accept or refuse medical treatment, including blood transfusion. In such case, the hospital has no choice but to respect the person's wishes. However, different considerations apply to a child because a child is incapable of making decisions for himself and the law is duty bound to protect such a child from abuse of his rights even by the child's parents. So, when a competent parent or person in loco parentis refuses medical treatment or blood transfusion for a child on religious grounds, the Court should step in.... These considerations outweigh whatever religious belief the parent of the child may have about any form of medical treatment because the child may grow up to reject his parent's religious beliefs............. "

11/08/2021

Most shareholders particularly of public companies often forget that they have the inherent powers as shareholders to hold the management of such companies to account. Most shareholders have barely reduced their functions to trading of shares and attending annual general meetings. This has become a monumental deficit costing corporations their very lives.

06/12/2019

We condemn in the strongest terms the r**e on Nigerian democracy and judicial desecration by men of the DSS, Sowore is already before the courts why still gag him, the actions of the DSS is a direct affront on everything legal within our legal jurisprudence, no one deserves this kind of inhuman treatment, may the voice of reason and logic prevail, to the military junta masquerading as a civilian, we see your acts, your deafening silence in the face of oppression of Nigerians speak volumes, we hear you loud and clear, posterity will judge, history shall never forget how you r**ed the judiciary.

24/11/2018

11/07/2018

"The question of the infringement of fundamental rights is largely a question of fact and does not depend so much on the dexterous submissions from the forensic arsenal of learned counsel on the law. So it is the facts of the matter as disclosed in the processes filed that are examined, analysed and evaluated to see if the fundamental rights of the Appellants were eviscerated or otherwise dealt with in a manner that is contrary to the constitutional and other provisions on the fundamental rights of an individual. The law remains that he who asserts must prove, so the Appellants had the onus of proving by credible affidavit evidence that their fundamental rights were breached. See ONAH vs. OKENWA (2010) 7 NWLR (PT 1194) 512 at 535 – 536."

22/05/2018

CHEMIRON INTERNATIONAL LIMITED V STABILINI VISINONI LIMITED

Legalpedia Electronic Citation: [2018] legalpedia SC. 545/2015

Areas Of Law:

Appeal, Court, Landlord And Tenant, Law Of Evidence, Lease, Practice And Procedure

Summary Of Facts:

The Respondent, being the owner of the property situate at Plot 12,Block B, Ogba Industrial Estate, Ogba, Lagos State comprising 2(two) warehouses measuring approximately 20,800 square feet and an office block with a 4(four) bedroom flat leased same to the Appellant. The Respondent however instituted an action against the Appellant in 1999 for the recovery of the said premises and by mutual agreement of the parties, Terms of settlement was prepared and same became the judgement of the court. By the Terms of settlement, it was stated that the Appellant shall vacate and deliver possession of the property to the Respondent on or before 31st December 1999. Consequently, by a letter dated 5th October 1999, a bank draft for the sum of N3, 375, 000, 00(Three Million Three Hundred and Seventy Five Thousand Naira) being 50% of the rent payable in respect of the three (3) years term granted, to be made on 29th December 1999 and a cheque for the balance to be paid not later than forty five days from 29th December 1999. The tenancy was for a term certain of three (3) years to commence from 1st January 2000 and terminate on 31st December 2002.The Appellant however requested for an extension of the deadline for payment and at a meeting it was agreed that the Appellant would pay the sum of N122, 765.02(One Hundred and Twenty Two Thousand Seven Hundred and Sixty Five Naira Two Kobo) as interest on delayed payment of rent.

Upon failure of the Appellant to pay the interest on delayed rent, the Respondent issued and served a Notice to Quit and subsequently a Notice of Owners Intention to Apply to recover possession on the Appellant. The Respondent as Plaintiff filed a suit claiming an order directing the Defendant to deliver up possession of the property, the sum of 4,500,000.00 (Four Million, Five Hundred Thousand Naira) being Mesne profit for the period of 1st January, 2003 to 31st December, 2004 at the rate of 2,250,000.00 (Two Million, Two Hundred And Fifty Thousand Naira) per annum among others. The Appellant in its statement of defence contended that the statutory notices were not served on it but admitted owing the Respondent profit for the said period. The trial granted the Respondent’s claim. Dissatisfied with the trial court’s judgement, the Appellant appealed to the Court of Appeal which dismissed same. The Appellant has further appealed to this court.

Held

Appeal Dismissed

Issue For Determination

Ø Whether there is sufficient admissible evidence on record that the respondent issued and served statutory notice on the appellant.

Rationes

TENANCY- WHETHER SERVICE OF A NOTICE TO QUIT IS MANDATORY WHERE TENANCY IS FOR A TERM CERTAIN

"Section 7 of the Recovery of Premises Law CAP 118, Laws of Lagos State 1973 ("the RPL") provides that:-

When and as soon as the term or interest of the tenant of any premises determines or has been duly determined by a written notice to quit as in Form B, C, or D, in schedule 1 to this Law such tenant or if such tenant does not actually occupy the premises or only a part thereof is actually occupied, neglects or refuses to quit and deliver up possession of the premises or any part thereof, the landlord of the said premises or his agent may cause the person or neglecting or refusing to quit and deliver up possession to be served with a written notice as in Form E signed by the landlord or his agent of the landlord's intention to proceed to recover possession on a date not less than seven days from the date of service of the notice.

From the said provision all the respondent needed provide was service of seven days to the appellant and that was done. That position was affirmed by this court in the case of Iheanacho v Uzochukwu (1997) 2 NWLR (Pt.487) 269-270." PER M. U. PETER-ODILI, J.S.C.

SERVICE OF NOTICE- WHETHER ANY SERVANT OR AGENT OF A CORPORATE BODY CAN TESTIFY AS TO THE SERVICE OF A NOTICE ON BEHALF OF THE COMPANY

"In that regard nothing stopped a body corporate as the respondent to get the functions carried, out by a legal firm acting on its behalf which firm would in turn utilise whatever human agent it so wished. In doing so the requirement of the law is met. Also as a follow up is that any servant or agent of the company or the legal firm acting for the company would meet the requirement of testifying as to that service carried out by the company or firm. It is not necessary that it is only that person who carried out the function on behalf of the company that must testify. Not at all, as any official of the company well equipped with the transaction and or related documents would suffice to testify. See Anyaebsi v RT Briscore Nia. Ltd (1987) 2 NWLR (Pt.59) 84; Kate Enterprises Ltd v Daewoo Nigeria (supra)." PER M. U. PETER-ODILI, J.S.C.

ADMISSIBILITY OF EVIDENCE BY AGENT OF A COMPANY- WHETHER EVIDENCE BY ANY AGENT OR SERVANT OF A COMPANY WHO DID NOT TAKE PART IN A TRANSACTION ON BEHALF OF THE COMPANY IS ADMISSIBLE

"What I am grappling to put across is well captured in the case of the Supreme Court, Saleh v B. 0. N. Ltd (2006) NWLR (Pt.976) 316 at 326 - 327 thus:

"A company is a juristic person and can only act through its agents or servants. Consequently, any agent or servant can give evidence to establish any transaction entered into by a juristic personality. Even where the official giving the evidence is not the one who actually took part in the transaction on behalf of the company. Such evidence is nonetheless relevant and admissible and will not be discountenanced or rejected as hearsay evidence.." (Underlining mine)

That principle was adopted in Comet S. A. Nigeria Ltd v Babbit Nig Ltd (2001) 7 NWLR (Pt.712) Pg.442, 452 para. B, per Galadima 3CA (as he then was) held that:

"Companies have no flesh and blood. Their existence is a mere legal abstraction. They must therefore, of necessity, act through their directors, managers and officials. Any official of a company well placed to have personal knowledge of any particular transaction in which a company is engaged can give evidence of such transaction."

- PER M. U. PETER-ODILI, J.S.C.

PROOF OF SERVICE- WAYS OF PROVING SERVICE

"Salami JCA upheld the various ways of proving service in the case of Agbaje v Fashola (2008) 6 NWLR (PL 1082) 90 at 142.

Where it is alleged that a document was delivered to a person who denies receiving such document, proof of delivery to such person can be established by: (a) dispatch book indicating receipt; or (b) evidence of dispatch by registered post; or (c) evidence of witness, credible enough that the person was served with the document.

See also Nlewedim v Uduma (1995) 6 NWLR (Pt.402) 383." PER M. U. PETER-ODILI, J.S.C.

BURDEN OF PROOF- WHETHER THE BURDEN OF PROOF IN CIVIL CASES IS STATIC

"I would want to go back to the assertion of the appellant of the improper or non-service of the Statutory Notices by stating that the law is now trite as backed by section 131 of the Evidence Act 2011 that he who asserts must prove. In fact I shall quote the provision thus:-

SECTION 131-

Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

That provision is supported by the fact that the burden of proof in civil cases is not static as it shifts from one party to another. Firstly the burden of proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may come up from the pleadings. Therefore if the party adduces evidence which ought reasonably to satisfy the court that the fact sought to be proved is established, the burden lies on the party against whom the judgment would be given if no more evidence were adduced and so on successively until all the issues in the pleadings have been dealt with." PER M. U. PETER-ODILI, J.S.C.

BURDEN OF PROOF - BURDEN OF PROOF IN CIVIL CASES

Section 133 of the Evidence Act 2011, provides that:

"In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.

(2) If the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successively, until all the issues in the pleadings have been dealt with".

- PER M. U. PETER-ODILI, J.S.C.

MESNE PROFITS - MEANING OF MESNE PROFITS

"The implication is as captured by my learned brother Augie JCA(as he then was) in Agbamu v Ofili (2004) 5 NWLR (Pt.867)540 at 570 thus:

"Mesne profits are therefore the profit accruing from the date the defendant ceases to hold the premises as a tenant to the date he gives up possession".

- PER M. U. PETER-ODILI, J.S.C.

COMPETENCE OF COURT - BASIS ON WHICH THE COMPETENCE OF A COURT IS DETERMINED

"The respondent had met the fundamental components which determine the competence of the court on which it can exercise jurisdiction as stated in the locus classicus of Madukolu V Nkemdilim (1962) 1 ALL NLR 587 per Bairamian FJ as follows:-

"put briefly, a court is competent when:

(1)It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another;

(2)The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and

(3)The case comes before the court initiated by the due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction".

- PER M. U. PETER-ODILI, J.S.C.

CONCURRENT FINDINGS OF LOWER COURTS - INSTANCES WHERE THE SUPREME COURT WILL DISTURB THE CONCURRENT FINDINGS OF LOWER COURTS

"In keeping with the policy of this court which has become trite, the Supreme Court will not disturb concurrent findings of the two lower court unless it is shown that such findings were perverse or that there was a substantial error either in the substantive or procedural law, Which if not corrected will lead to a miscarriage of justice. See Ben v State (2006) 7 SC (Pt.ll) 133 at 138." PER M. U. PETER-ODILI, J.S.C.

UNDISPUTED FACTS - STATUS OF UNDISPUTED FACTS IN PROCEEDINGS

"It is trite that facts not disputed are taken as established and therefore need no further proof. The court can legitimately act on such undisputed fact: Odulaja v. Haddad (1973) 11SC 35; Hon. Kehinde Odebunmi & Anor v. Ojo Oyetunde Oladimeji & Ors (2012) LPELR - 15419 (CA)." PER E. EKO. J.S.C.

15/04/2018

SUPREME COURT: ENDING THE ENDLESS LITIGATION

By: Abdulrasheed Ibrahim

The PUNCH NEWSPAPER is presently doing an analysis on the Supreme Court of Nigeria and how it has been burdened with not less than 5000 cases in its docket. These appeal cases are being handled only by 17 Justices of the Supreme Court. This analysis is being done by the PUNCH under the caption SUPREME COURT OF LIVING, DYING AND DEAD CASES. This analysis is a must read for all members of the legal profession particularly the lawyers and judges as well as the authorities that co-ordinate their activities. The litigants including the politicians that engage the services of lawyers to do the litigations as well as members of other arms of government. The general public particularly the stakeholders in the justice delivery system also need to read the said thought provoking analysis so that we can all together proffer solutions on how to end the endless litigations at the Supreme Court. A lot of cases where parties are not satisfied with the decisions of the various divisions of the Court of Appeal throughout the federation usually find their last bus stop at the one and only Supreme Court in Nigeria located at the Federal Capital Territory, Abuja. This is apart from those cases where it has the original jurisdiction as stipulated by the Constitution of the Federal Republic.

There is no doubt that our Learned Justices of the Supreme Court are very wonderful jurists who work day and night to see to the true dispensation of justice but unfortunate they are most time shouldered with appeal cases that are ordinarily ought not to have found their way to the apex court in the first place. Why must the Supreme Court be bothered with cases such as to determine the ownership of a fish pound between SAKITI and BAKO as cited in the said analysis where all the courts below had given concurrent judgments? Why should the Supreme Court be concerned with the issue of who should be installed a Chief in a village? Are those cases not better terminated at the Court of Appeal? You have cases that have spent over 30 years in court and still yet to come to any end. In these types of cases you will discover that those that initiated them as litigants must have died and substituted in the course of the cases. Judges who handled them must have retired from service or chains of lawyers must have been involved in the cases as some lawyers taking over the cases from the other lawyers.

The Justices of the Supreme Court on several occasions have lamented the delay and this sorry state of dragging cases unnecessary before the court. In the case of ARIORI Vs. ELEMO (1983) 1 SC on pages 74-75 ,the late Justice Eso had this to say :

“It is unfortunate that a case that has been litigated through a space of twenty two years is still not brought to an end and has to be reopened again due to the avoidable fault of the trial judge especially when some of the witnesses might have died or perhaps cannot now be traced. Indeed the trial judge himself has retired from the service. If it is possible to make an order other than a retrial I would have readily acceded to it. But to my mind the course of justice can only be satisfied by a retrial and I do hope the Chief Judge of Lagos State will look into the issue of speedy trial and assign a judge to this case who would attend to the trial from day to day and complete it with utmost dispatch”.

In the case of AMADI Vs. NNPC (2000) FWLR (Pt. 9) 1527; (2000) 10 NWLR (Pt. 674) 76, the former Chief Justice of Nigeria, Justice Uwais also had this to say :

“With the success of the plaintiff’s appeal before us, the case is to be sent back to the High court to be determined, hopefully, on its merits after a delay of 23 years. Surely, this could have been avoided had it been that the point was taken in the substantive claim to enable any aggrieved party to appeal on both the issue of jurisdiction on merit in the proceedings as the case might be. I believe that counsel owe it as a duty to the court to help reduce the period of delay in determining cases in our courts by avoiding unnecessary preliminary objections as the one here; so that the adage justice delayed is justice denied may cease to apply to proceedings in our court.”

We can go on and on to cite many other jurists, but these two may be sufficient for now for the sake of this present discuss. The truth of the matter is that when you have a system that allows people to aim high, there is no way people will not aim beyond the sky no matter what it will cost to get there. In my article titled EXAMINING THE NBA PRACTICING FEES, I submitted some years back:

“The reality on the ground today is that the Legal Profession in Nigeria has become a big kind of cow that only very few of its members are milking the cow. The other day I overheard some lawyers complaining that some companies in Nigeria have declared members of the Outer Bar persona non granta in their companies, that is to say if you are not members of the Inner Bar (SANs) no any legal brief for you. Perhaps this is more the reason why every lawyer is desperate to become Senior Advocate of Nigeria (SAN).There are applicants for the rank who are even ready to pay any price for it including buying judgments from their colleagues to boost the number of cases to be submitted to the Legal Practitioner Privilege Committee so as to have the title conferred on them.”

For a lawyer to become a Senior Advocate of Nigeria (SAN), one of the conditions he must fulfil is that he must have argued certain number of cases up to the Supreme Court apart from those he must have argued at the Court of Appeal and the High Court. With this kind of condition, tell me why many lawyers would not like to file appeals up to the Supreme Court regardless of the fact whether such appeals have merit or not. I think, there is a need to have a second look at that condition. I believe sufficient good number of cases that have added value to the development of law argued at the High Court or Court of Appeal without reaching Supreme Court can be considered. Not all cases should be allowed to reach Supreme Court. Some kinds of cases should be allowed to terminate at the Court of Appeal. In the case of A-G, ADAMAWA STATE Vs. WARE (2006) 4 NWLR (Pt. 970) Pgs. 417-418 Paras F-C, late Pats-Acholonun, JSC said:

“I cannot but comment on nature of cases that now inundate the Supreme Court. That this Apex court which ordinarily should confine itself dealing with important cases more particularly constitutional matters would now be crowded with non-discreet pedestrian cases like deciding on who should be a chief in a village or community. This court should borrow a leaf from the U.S Supreme Court where that court on its own, turns it back and refuses to handle some matters which they in their wise discretion and wisdom regards as frivolous or would not advance the growth of jurisprudence. Such banal, dreary and utterly vapid cases ought to end in the Court of Appeal and this court should on its own decide whether some cases filed in this court should necessarily be heard by this court. To my mind it is the duty of this court to reject in toto an application for appeals in a matter where: (a) there have been concurrent findings of fact in the lower courts and no constitutional issue of law is involved unless in a case where this court is of the view that it has to depart from some precedents hitherto resorted to because we inherited them from English report (b) cases which counsel took up because they want to use it to advance or increase the number of cases they handle in Supreme court for the purpose of application for SAN. Of course novel cases that have arisen in the lower courts could of necessity find their way in this court for determination. That is what this court is instituted for, not for ordinary drab, dull and strictly non-contentious issues where counsels merely wish to make themselves heard.”

Part of the solutions are as propounded by the late Supreme Court Jurist above as this will go a long way in solving the stream of cases that go to the Supreme Court by ending the endless litigations. The politicians who are lawmakers rather than easing the burden of Supreme Court have added more burden to it. The appeals on gubernatorial elections that used to terminate at the Court of Appeal have now the extended to the Supreme Court. I keep wondering why interlocutory appeals still go to the Supreme Court rather than terminating at the Court of Appeal as held in the case of EKO CONSULT LTD Vs. PANCHO VILLA LTD (1999)1 SC 83 at 84 . The constitution will operate in this country seems seriously to have tied the hands of Justices of the Supreme Court to say some cases should not come to their court. For instance, when the National Industrial Court (NIC) came on board, it came with a caveat that whatever decision it delivered was final but you can only appeal against its decision on the ground of FAIR HEARING. The NIC was able to maintain this posture until the Supreme Court eventually pulled the rug off the feet of the NIC that that posture was unconstitutional. But the price that the Supreme Court is now paying is that by that decision it has now opened more flood gates for more appeals from the Court of Appeal which originated from the NIC. This is why there is the serious need to review the JUDICATURE part of the present Constitution we operate.

As long as we maintain the system that insists that lawyers must argue cases up to the Supreme Court before being conferred with the rank of the Senior Advocate of Nigeria (SAN) so shall lawyers continue to troop to the Supreme Court to file appeals regardless of whether the appeals are meritorious or not as I doubt if the awarding of heavy cost against frivolous appeals will do enough magic to discourage filling of unnecessary appeals before the apex court.

LITERARY MESSIAH

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THE SETTLED PRINCIPLE OF LAW

On effect of hearing a proceeding on the date fixed for mention.
“It is trite law that a court cannot treat a date fixed for mention as one for hearing. Any proceedings conducted in such circumstances would be a nullity and liable to be set aside. It is wrong for a judge to treat a date fixed for mention of a case as one for hearing and that any judgment entered shall be set aside on appeal and a retrial ordered.”
See OBI Vs. OBI (2004) ALL FWLR (Pt. 224) Pg. 208 Para F

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08/11/2017

DIMACON INDUSTRIES LIMITED V MR. OLAYIWOLA AJAYI-BEMBE & ORS

Appeal no: CA/L/421/2013

AREAS OF LAW:
APPEAL, COUNTER CLAIM, COURT, PRACTICE AND PROCEDURE, WORDS AND PHRASES

SUMMARY OF FACTS:

The Appellant sought various reliefs against the Respondents for allegedly unlawfully invading some parcels of land situate at and known as Plots 3 and 4, Block 9, Ikoyi Foreshore, Ikoyi, Eti-Osa Local Government, Lagos State.

At the close of trial, the parties as ordered by the court below filed their final written addresses. In their final address, the Respondents contended that the Appellant's Writ of Summons was incurably defective and prayed the court below to strike out the Writ of Summons on the authority of the Supreme Court's decision in Okafor V. Nweke (2007) 3 S.C (Pt. II) 55 . 62-63 and to proceed to decide the suit solely on the 3rd and 4th Respondents' Counter Claim, which they contend exists as a separate suit. The Appellant proceeded by filing an application seeking leave to file a Counter Claim to the 3rd and 4th Defendants' Counter Claim to enable the Appellant present as it were, though seemingly stranger than fiction, its case in place of its incompetent Writ of Summons and to have the court below decide the matter on the merits, which application the court below dismissed on 9/3/2012.

The Appellant subsequently filed an application for praying the court below to strike out its Writ of Summons for being a nullity and consequently to also strike out the Counter-Claim of the 3rd and 4th Respondents on the ground that same was premised upon the Writ of Summons of the Appellant, which had turned out to be a nullity in law, an application which the court below granted in part by striking out the Appellant's Writ of Summons for being a nullity but allowed the 3rd and 4th Respondents' Counter Claim as being independent in its existence of the Appellant's claims. Dissatisfied with the decision of the Court, the Appellant has appealed to the Court of Appeal.

HELD:

Appeal Dismissed

ISSUE FOR DETERMINATION:

Ø Whether the court below was right in allowing the 3rd and 4th Respondent's Counter Claim after striking out the Appellant's Writ of Summons for being a nullity?

RATIONES:

ISSUES FOR DETERMINATION- BASIS FOR THE ISSUES FOR DETERMINATION

“In law, it is the facts that frame the issues for decision. Thus, decisions of courts are not to be pulled by the hair and applied perforce across board.” PER B.A. GEORGEWILL, J.C.A

RULES OF COURT- INSTANCE WHERE THE PROVISIONS OF THE LAGOS STATE HIGH COURT RULES CAN BE DEPARTED FROM

“I am aware of the provisions of Section 2 of the High Court Law of Lagos State, providing for situations where the Rules of the Court below can be departed from, thus:

"Where a matter arises in respect of which no adequate provisions are made in the rules, the Court shall adopt such procedure as will in its view do substantial justice between the parties concerned."

- PER B.A. GEORGEWILL, J.C.A

“DISCONTINUANCE” AND “STRIKING OUT” - DEFINITION OF “DISCONTINUANCE” AND “STRIKING OUT”

“The word "discontinued" as specifically stated in Order 17 Rule 11 of the Rules of the Court below and the word "Striking out" as ordered by the Court below have been variously but succinctly defined both in judicial authorities and by learned authors. While, discontinuance is defined as the discontinuing of an action because the Plaintiff has not observed the formalities needed to keep it pending, striking out refers to action a court takes upon the discontinuance of a claim. A striking out of a claim occurs when a court directs the removal of the case from the record or docket as being one over which it has no jurisdiction and no power to hear and determine it on the merit. However, generally, the word, "Discontinuance" means an ending, causing to cease, ceasing to use, giving up, leaving off, termination or abandonment or the like. In legal parlance, the word discontinuance means cessation of the proceedings in an action where the Plaintiff voluntarily puts an end to it, either by giving notice in writing to the Defendant before any step has been taken in the action subsequent to the answer or at any other time by order of court.” PER B.A. GEORGEWILL, J.C.A

“DISMISSAL” AND “STAY OF EXECUTION”- DISTINCTION BETWEEN “DISMISSAL” AND “STAY OF EXECUTION”

“On the other hand, "Dismissal" means an order or judgment finally disposing of an action, suit or motion upon trial of the issues involved. While, "Stay of proceedings" on its part means the temporary suspension of the regular order of proceedings in a case by direction or order of the court, usually to await the action of one the parties in regard to some omitted step or some act which the court has required him to perform as incidental to the suit or pending an appeal against some interlocutory decisions or orders of a lower court. See Blacks Law Dictionary 6th Edition . 464, 465 & 1423; New Webster's Dictionary of English Language International Edition. In some circumstances, instances of which abound in the law reports, dismissal and striking out may ultimately have the same effect in law. See Onyekaonwu & Anor V. Udegbunam (2009) LPELR - 8344 (CA), where Sanusi JCA (as he then was but now JSC) had opined inter alia thus:

"Dismissal may merely amount to striking out..." See also Obasi Bros Co. Ltd V. MBAS Ltd (2005) 9 NWLR (Pt. 929) 117.” PER B.A. GEORGEWILL, J.C.A

DISCONTINUANCE- CONSEQUENCES OF DISCONTINUANCE OF A MATTER

“In law, the consequences of discontinuance have been well established in a plethora of judicial authorities as are replete in the law reports. In Aghadiuno & Ors V. Onubogu (19980 NWLR (Pt. 548) 16, Iguh JSC had expatiated on this salient principle of law inter alia thus:

"A Plaintiff may without the leave of court discontinue a suit against all or any of the Defendants or withdraw any part of his claim....Such Notice of Discontinuance however, must be in writing. But after the receipt of such Notice by the Defendant, the Plaintiff cannot recall it as such discontinuance or withdrawal automatically terminates the proceedings and a formal order of striking out the suit may be made by the court"

See also Bab at uncle V. PAS & TA Ltd. (20070 13 NWLR (Pt. 1050) 113, the Supreme Court, where Muhammad JSC, had expatiated inter alia thus:

"Once a litigant withdraws his action in a situation where no leave of court is required, the trial court has no option but to strike out the suit......Even if the court insists that he should

continue, he may refuse to tender evidence or take any further steps in the action, that same court can do nothing other than to strike out the case of where evidence has been taken to a reasonable level to dismiss the action "

See also Eronini V. Iheuko (1989) NWLR (Pt. 101) 46; Ekudano & Anor v. Keregbe & Ors (2008) 4 NWLR (Pt. 1077) 422 (SC).” PERB.A. GEORGEWILL, J.C.A

“STRIKING OUT” - DEFINITION OF “STRIKING OUT”

“In Young Shall Grow Motors Ltd. V Okonkwo & Anor (Supra) @ p. 12, the Supreme Court per /. T. Muhammed JSC, had defined the words "striking out" inter alia thus:

"Striking out a thing, simpliciter means to remove that thing by drawing a line through it that is crossing it out. Striking out a suit/case in its general connotation is the act of discontinuance or termination of the life span of that suit/case either temporarily or permanently"

- PER B.A. GEORGEWILL, J.C.A

“COUNTER CLAIM” AND “SET OFF”- DISTINCTION BETWEEN A “COUNTER CLAIM” AND “SET OFF”

“It is the law, and it needs to be stressed, that a counter claim, though similar to set off, is not entirely the same as a set off. This is so because while a set off must relate to the main claim and thus may not survive the premature technical death or nullity of the main claim and is less likely to stand on its own, it is not so with a counter claim. A counter claim may or may not be related to the main claim. It thus has a life and existence of its own in law. It is an independent action joined to the Statement of Defense, principally for convenience of trial. It would therefore, not be affected by any incompetency or lack of merit of the main claim. It must carry its own cross and be incompetent or lack merit by itself. It does not and cannot bear the cross or fate of the main claim.” PER B.A. GEORGEWILL, J.C.A

COUNTER CLAIM- MEANING OF A COUNTER CLAIM

“A counterclaim is substantially a sort of cross action and not merely a defense to the claims of a Plaintiff. This is why neither a claim nor a counter claim derives its validity from the other. One would not have to consider a claim to see if a counter claim is valid or meritorious. A counter claim has its own pleadings too. In like manner, one would not need to consider a counter claim to determine if a claim is competent or meritorious. Both are like the Rivers of Benue and Niger, which like the principles of law and equity, flow in the same stream but their waters would never mix, as can be seen at the confluence point of intersection of both Rivers in the confluence city of Lokoja. In Dabup V. Kolo (Supra ) @ p. 281, the Supreme Court per Ogundare, JSC had emphatically pronounced inter alia thus:

"The law is very clear on that point. There are numerous authorities that say that a counterclaim is in the same position as an action being itself a cross-action and subject to the same rules of Court as regards pleadings."

See also Gowon V. Ike-Okongwu (Supra) 23; Peterside V. IMB (Nig.) Ltd. (Supra) @ pp. 731 - 731; Nigerian Ports authority V. CGFC (1974) 12 S.C 81; Biode Pharmaceutical Industries Ltd. V. Adsell (Nig.) Ltd. (1986)5 NWLR (Pt. 46) 1070; Chief Ogbonna V. AG. Imo State and Ors (1992) 1 NWLR (Pt 220) 647. U.I.C. Ltd. V. T.A. Hammond (Nig) Ltd. (1998) 9 NWLR (Pt. 565) 340 @ p. 368; Ige V. Farinde (1994) 9 NWLR (Pt. 317) 254.” PER B.A. GEORGEWILL, J.C.A

COUNTER CLAIM - WHETHER THE CONTINUANCE OF A COUNTER CLAIM IS DEPENDENT ON THE COMPETENCE OF A CLAIM

“Having held as above that the word "discontinued" in particular, as well as the word "dismissal" as used in Order 17 Rule 11 of the Rules of the Court below, contemplate and include or cover the meaning of the words "striking out", the question begging for answer is simply this: is the continuance of a counter claim dependent on the competence or presence of a claim? In other words, upon the striking of the claims of a Plaintiff, is the counter claim of a Defendant also liable to be struck out?

In Peterside V. IMB (Nig.) Ltd (1993) 2 NWLR (Pt. 278) 712 . 726 & 733, this Court per Tobi JCA (as he then was but later JSC and may God bless his soul) had succinctly opined inter alia thus:

"...It is therefore not correct that since the Appellant's Statement of Claim was discontinued, the Counterclaim has no basis in law. It is clearly from the Statement of Defense that apart from the denials in paragraphs 1 to 12 therefore, paragraphs 14 to 18 clearly averred to the counterclaim, which, in my view, is separated and distinct, and therefore survives the action of the Appellant, accordingly the case of Macfoy vs. U.A. C. 1 (1961) 3 ALL ER 1169 at 1172 cited by learned counsel does not apply."

- PER B.A. GEORGEWILL, J.C.A

COUNTER CLAIM - WHETHER THE DISMISSAL OF A CLAIM AUTOMATICALLY AMOUNT TO DISMISSAL OF COUNTER CLAIM?

“So, if a claim is withdrawn or applied to be struck out by a Plaintiff against a Defendant with a counter claim of his own, and the claim was consequently struck out by the court, should the counter claim of the Defendant also be struck out merely because the claim was not expressly stated to have been discontinued or stayed or dismissed? I think not!

My lords, to apply to strike out a claim by a Plaintiff, as well as to apply to discontinue a claim would, in my view, result in the same form of action by the court, namely: a striking out and therefore, Order 17 Rule 11 of the Rules of the Court below contemplates and covers a striking out and thus upon the striking out of the Appellant's claim on its own application, the 3rd & 4th Respondents' counter claim remained alive, unaffected and ought to be proceeded with as correctly held by the court below. I agree therefore, with the Respondent's counsel that the difference sought, so assiduously, to be made between striking out and discontinuance, which in most cases ends with an order of striking out, is a distinction without a difference. It is clearly futile.” PER B.A. GEORGEWILL, J.C.A

COUNTER CLAIM- MEANING OF A COUNTER CLAIM

“A counterclaim is a separate, independent and distinct cause of action and the counterclaimant like all other claimants in an action must prove his claim against the person counterclaimed against before obtaining judgment on the counterclaim. See Ogbonna vs. A-G (IMO STATE) (1992) 1 NWLR (PT 220) 647, Walter Vs. Skyll Nig.Ltd (2000) 6 WRN 130 at 134 and Jeric Nig. Ltd Vs. Union Bank Of Nig. Plc (2001) 7 WRN 1 at 18” PER U.A. OGAKWU, J.C.A