ESSELL & ASSOCIATES

09/07/2023

Another area of law...that got me twisted.

Children are a joy to behold, a treasure to have and a desire of many families. Sadly, some married couples do not have this joy. While some eventually became parents through medical procedures, ot…

09/07/2023

Areas of law that got me twisted....

By Prof. Raphael Nyarkotey Obu & Martina Akusika Mensah(Esq) Scanning through Kofi Kumado’s book “Introduction to The Law of Torts in Ghana” (2nd Edition) Page 95 on Private Nuisance, we chance…

07/09/2023

*Motion For Joinder Of A Party Versus Motion Challenging The Jurisdiction Of A Court: The Order Of Precedence*

_By David Andy Essien, Esq._

*It is necessary to mention that while a court of law has the inherent jurisdiction to assume interim jurisdiction and determine whether it has the vires to entertain a matter, such an exercise of interim jurisdiction must be trimmed, patterned and/or tailored to...*

INTRODUCTION:   A lot has been said by all cadres of Courts in Nigeria concerning the untrammeled and expansive need to afford necessary parties an

07/02/2023

Law week 2023.

10/26/2021

Igbo Lawyers apply to join suit seeking exit of South-east from Nigeria

Association of Igbo lawyers has approached the Federal High Court with an application to be joined as a party in a suit some Northern elders.

01/30/2021

*Law Degrees and Their Meanings*, by Chinua Asuzu

The undergraduate degree in law is Bachelor of Laws (LLB). LLB is spelt LLB or LL.B., never L.L.B.

This strange abbreviation comes from Latin. The Latin word lex means ‘law.’ The plural of lex is legum. Creating an abbreviation for a plural, especially in Latin, is done by doubling the first letter of the noun. An example is cc for copies, and pp for pages; hence LL for laws.

‘LLB’ stands for Legum Baccalaureus, Latin for ‘Bachelor of Laws.’ Your degree is a Bachelor of Laws, not Bachelor in Law, not Bachelor of Law, and not Bachelor of Law and Letters or Bachelor of Law and Logic!

LLM (or more rarely LL.M., but never L.L.M.) stands for Legum Magister, Latin for Master of Laws. LLD (or more rarely LL.D., but never L.L.D.) stands for Legum Doctor, Latin for Doctor of Laws.

The discipline, law, is already expressed inside these titles. So you cannot have “LLB in Law,” or “LLM in Law,” or “LLD in Law”—just LLB, LLM, or LLD. Could it conceivably have been an LLB in Nuclear Physics? Please review your résumés.

JD (Juris Doctor) is the American equivalent of an LLB. An SJD (Doctor of Juridical Science, Doctor of the Science of Law, or Scientiae Juridicae Doctor) is a research doctorate in law. It originated from the US and is offered in that country as well as in Canada.

Just because your law degree is titled a ‘Bachelor of Laws,’ you didn’t “study laws”; you “studied law.”

By the way, folks, the plural of JSC (Justice of the Supreme Court) is JJSC (Justices of the Supreme Court), not JSCs. The plural of J (for Judge) is JJ (Judges); for JCA (Justice of the Court of Appeal), it’s JJCA (Justices of the Court of Appeal).

01/08/2021

DNA TEST AS PROOF OF PATERNITY: THE CURRENT POSITION OF NIGERIAN LAW

Basically, as at TODAY, the position of the law on the determination of PATERNITY in Nigeria is as espoused by the COURT OF APPEAL, Per Mbaba, JCA in the case of TONY ANOZIA V. MRS. PATRICIA OKWUNWA NNANI & IGNATIUS "NNANI" (2015) 8 NWLR (PT. 1461) 241.

FACTS OF THE CASE
The facts of the case which is otherwise known as ANOZIA V. NNANI are that the Appellant filed a suit against a married woman (the 1st Respondent) and her son (the 2nd Respondent) seeking for a declaration of the paternity of the 2nd Respondent.

His case was that he had s*xual in*******se with the 1st Respondent sometime in 1957, at a time when the 1st Respondent’s husband was terminally ill and incapable of performing s*xual acts.

The Respondents denied the claims.

While the matter was yet to be tried, the Appellant filed an application seeking for an order of court referring parties for a DNA test.

The trial court refused the application on the ground that granting same would amount to allowing the Appellant to use the interlocutory application to realise the relief he sought in the main suit.

The Appellant’s appeal was unanimously dismissed by the Court of Appeal.

In the said case which is now before the SUPREME COURT in Appeal No. SC201/2015, the Court of Appeal made judicial pronouncements on some issues, FIVE (5) pf which are most relevant to this discourse.

PRONOUNCEMENT 1
ON THE MEANING OF DNA:
"DNA, that is, “deoxyribonucleic acid” is a molecule that contains the genetic code of any organism. It is hereditary and has become an euphemism for scientific analysis of genetic constitution to determine one’s roots." (Page 256, Paragraph H)

PRONOUNCEMENT 2
ON WHEN THE COURT CAN ORDER DNA TEST:
"Where a person is a minor (not mature adult) and his paternity is in issue, the court can order the conduct of DNA test in the overall interest of the child, to ascertain where he belongs.

"However, this is not the situation in the instant case where the appellant had a duty to establish his claim on the 2nd respondent, independently, and to produce such evidence to the court. Of course, if he elected to use DNA test to establish his claim, it was up to the appellant to go for it on his own, and/or woo the respondents to do so, without a resort to the coercive powers of the court, to compel his adversary to supply him with the possible evidence he needed to prove his case." (Page 257, Paragraphs B-C)

"Per MBABA, JCA at Pages 256-257, Paragraphs H-A:
I doubt whether that form of proof can be ordered or is necessary to determine the paternity of a 57 years old man, who does not complain about his parenthood, just to please or indulge a self acclaimed predator, who emerges to distabilize family bonds and poses as a biological father!

"I think it is only the 2nd respondent (a mature adult) that can waive his rights and/or seek to compel his parents (or those laying claim to him) to submit to DNA test to prove his root."

PRONOUNCEMENT 3
ON WHETHER AN ADULT CAN BE COMPELLED TO SUBMIT TO DNA TEST:
"A court cannot order an unwilling adult or senior citizen to submit to DNA test, in defiance of his fundamental rights to privacy for the purpose of extracting scientific evidence to assist the appellant in the instant case to confirm or disprove his wish that the 2nd respondent – a 57 year old man – is his child, of an illicit amorous relationship!

"I think appellant’s claim at the court below, founded on an obscene and reprehensible immoral foundation, was a scandal and blackmail, which a sound lawyer would be ashamed to associate with." (Page 254, Paragraphs F-H)

PRONOUNCEMENT 4
ON THE DETERMINATION OF THE PATERNITY OF A CHILD:
"If a party is claiming paternity, a court of law should be allowed to determine same on proof of evidence relating to paternity, which could only be done by referral for a DNA test of the parties involved. After such test, the court has a duty to declare the actual father of the child in dispute in consonance with evidence at its disposal." [OLAYINKA V. ADEPARUSI (2011) LPELR 2697 referred to.] (Page 256, Paragrahs F-G).

PRONOUNCEMENT 5
ON PRESUMPTION IN RESPECT OF A CHILD BORN WITHIN WEDLOCK:
"A woman has the right to say who the father of her child is, and of course, where a child is born within wedlock, the PRESUMPTION is conclusive that the child is the seed or product of the marriage." (Page 256, Paragraphs C-D)

PRESUMPTIONS
A PRESUMPTION is an assumption that is made in law that will stand as a fact unless someone comes forward to contest it and REBUTS (disproves) it with clear and convincing evidence.

A REBUTTABLE presumption is an assumption of fact accepted by the court until rebutted (disproved).

Generally, all presumptions can be regarded as REBUTTABLE, and the PRESUMPTION OF PATERNITY is no exception.

The presumption of paternity is rebuttable on the presentation of clear and irrefutable evidence to the contrary, as clearly stated by the Court of Appeal in the PRONOUNCEMENT 2.

CONCLUSION
In a nutshell, the CURRENT position of Nigerian Law is that when a MARRIED woman gives birth to a CHILD, her HUSBAND is 100% PRESUMED to be the father of the child.
And where the PATERNITY of the said CHILD is in contention, upon the application of one of the parties, the court CAN and SHOLUD order a DNA test to be conducted to determine the TRUE father of the CHILD.

Conversely, an ADULT is 100% PRESUMED to know his TRUE father.
And where the PATERNITY of the said ADULT is in contention, except the ADULT surrenders himself for a DNA test, upon the application of one of the parties, the court CANNOT and SHOULD NOT order a DNA test to be conducted to determine the father of the ADULT.

10/12/2020

Trouble as Civil Society group drags Abia Federal High Court Judge, Justice Osiagor Before NJC. *The reasons will shock you

A group under the aegis of Civil Society Coalition for Judicial Reforms has dragged Justice D.E Osiagor of the Federal High Court, Umuahia Judicial Division before the National Judicial Council (NJC) over allegation of bias in the case with suit No FHC/UM/PET/02/2018 filed on 23rd July 2018.

09/24/2020

Hmmmm...

A magistrate court sitting in Ilorin, Kwara State, has enforced bench warrant against an officer of the Nigeria Security and Civil Defence Corp (NSCDC),

08/19/2020

*Admissibility of Original Copy of a Public Document*

*KASSIM v. STATE (2017) LPELR-42586(SC)*

*INTRODUCTION*

The Evidence Act provides that where a secondary evidence of a public document is to be tendered in evidence, only the certified true copy will suffice. There have been questions as to what happens if the original public documents are available. Will same be held admissible in evidence?

EKO J.S.C while delivering the leading judgment rightly observed as follows “…suffice that I mention that the Courts are not unanimous on whether; where original copy of a document forming part of public record is available, the secondary evidence of it, as opposed to the original and primary evidence of it, is the only legal evidence admissible in evidence and it is illegal to prove its contents by the production of the original copy”

He then went further to say “Now, what really is the essence of the demand for a certified true copy of a public document? I think, and in agreement with Adekeye, JSC, in GODWILL & TRUST INVESTMENT LIMITED v. WITT & BUSH LIMITED (2011) 8 NWLR 500; (2011) LPELR – 1333 (SC), the essence of demanding for a certified true copy of a public document is the assurance of the authenticity of the document vis-a-vis the original. And so why go for that assurance in the certified true copy vis-a-vis the original, when the original is available? And so, when the cap is in the market, the head is also in the market; there is no further need to take the cap home from the market in order to test it on the head. I, therefore, agree with the Court below that where the original copy of a document is available, it is admissible without the requirement of certification”

OGUNBIYI, J.S.C supported the lead judgment to the effect that original of public documents are admissible in evidence when he said: “By the combined effect of Sections 86, 87, 88, 89, 90, 102 and 103 of the Evidence Act, 2011, documents (Public or Private) may be produced in Court by tendering either the original of the document itself or the copy thereof known as secondary evidence: but a party relying on secondary evidence of a public document must produce the certified true copy and no other copy thereof is admissible.”

Further, KEKERE-EKUN, J.S.C, in her own contribution was also in support of the admissibility of the original copy of a public document. In her words, “With regard to the admissibility of Exhibits 1, 2 & 3 and the contention of learned counsel for the appellant that only certified true copies of public documents are admissible in evidence and therefore the original documents tendered in this case are inadmissible. I adopt as mine, the exhaustive analysis of the relevant provisions of the Evidence Act, 2011 carried out by my learned brother, Ejembi Eko, JSC in the lead judgment. In addition, I refer to a similar exercise carried out by me in the recent case of Uwua Udo V. The State (2016) 2-3 SC (Pt. III) 29 @ 47 – 54 wherein I held that a public document tendered in its original form is admissible in evidence by virtue of Sections 85 and 86(1) of the Evidence Act, 2011. I therefore hold that Exhibits 1, 2, & 3 were properly admitted in evidence in this case.”

07/08/2020

Breaking news:

Court grants divorce to woman who sued over size of hubby's manhood.

NIGERIA: ZAMFARA State house wife Aisha Dannupawa has been granted a divorce by a local Sharia court after filing a suit against her husband for dissolution of their marriage because his manhood was too BIG.

In the first such case of its kind, Aisha, a mother of three, asked the court to dissolve her marriage to Ali Maizinari because she could not accommodate the size of his p***s. Her husband, Maizinari did not contest her application but told the court that she should repay the entire dowry and what he spent during their courtship, which he estimated to total N60,000 ($296). Aisha told the court that she married Maizinari after her first marriage failed. She added that before she moved into his house, she was invited to his parents’ house, as per tradition but it was only when they had s*x that she became traumatised.

“When he came, we had s*x but the experience was a nightmare. Instead of enjoying the s*x, it turned out to be something else because his p***s was too big. “I told my mother the experience but she told me to endure and that with time, I will be able to cope. She then gave me some drugs,’’ Aisha said.

According to the traumatised wife, they had s*x again but it became evident that no drug would help and that she cannot remain married to the man. With no objection from her husband, the court granted Aisha the divorce.

What do you think?

07/05/2020

Court: no fractional payment in periodic employment
3 minutes
By Joseph Jibueze

Justice Nelson Ogbuanya of the National Industrial Court, Lagos, has held that there is no fraction payment in periodic employment.

He said an employee who is terminated within a new month is entitled to the full salary of that month and not a fraction for the number of days worked.

His Lordship delivered judgment in a suit numbered NICN/166/2015, by the erstwhile Human Resources Manager of Equinox Int’l Resources Ltd Abe Adewunmi against the company.

Defence counsel, Nkacha Chunwuba, argued that being an unconfirmed employee, the plaintiff was not entitled to certain terminal benefits, inclusive of salary in lieu of notice.

The claimant’s counsel C.M Ohamuo, of the Lagos State Office of the Public Defender, contended that the claimant served out the probationary period of six months and continued working without any query.

Justice Ogbuanya held that that the claimant did no wrong, and that having retained his services after the period of probation, the defendant was deemed to have confirmed him.

The judge said: “Unless the employer terminates the employment within the probationary period if it feels that the employee’s conduct and competence are not satisfactory during the probation, the employee is deemed to have been confirmed if he/she continues to work for the employer after the probationary period,” the judge said.

On payment of a fractional sum, Justice Ogbuanya cited the case of Grant Mpanugo v. CAT Construction Nig Lt & Anor. (Suit No. NICN/LA/660/2015, in which judgment was delivered on September 20 2019).

He noted that monthly salary is not calculated by the number of days worked, otherwise, there would be no equal salary given that the 12 months of a year do not have equal days, especially February.

“In my considered view, in periodic employment of this kind, an employer who decides to terminate an employee within a new month is liable to pay for the full salary of that exit month and not a fraction of the days the employee worked in the month. I so hold.

“On that note, the claimant is entitled to payment of his full salary in the month of September 2012 – the last month of his employment before his exist by way of the termination on 7th September 2012,” Justice Ogbuanya held.

Justice Nelson Ogbuanya of the National Industrial Court, Lagos, has held that there is no fraction payment in periodic employment.