Being A Paper delivered at the NBA
2009 General Conference Holden at Le’ Meridian Hotel, Victoria Island, Lagos,
Nigeria by Worgu Boms Esq.
‘’Mastering the lawless
science of our Law,
That codeless myriad of
precedent[s],
That wilderness of
single instances,
Through which a few, by
wit or fortune led,
May beat a path out to
wealth and fame.’’
-Tennyson, Aylmer
AP VS. OWODUNNI
The
African Petroleum (AP) Company Plc, had Mr. Owodunni, a chartered accountant
who was also a Director of the company and also its employee, occupying its
house and premises at Ikoyi, ‘for as long as he held his appointment as
Department manager’. Although the purpose of the allocation to Owodunni was to
enable him do his work for the company; he was also paying a negotiated and
agreed rent over which they later disagreed and had the Rent Tribunal fix the
appropriate rent. The Tribunal further allowed Mr. Owodunni two more years on
the premises.
After
the two-year period, several Notices to quit were issued to Mr. Owodunni to yield
up possession and despite these, Mr. Owodunni held over and the Company, as
Plaintiff and Mr. Owodunni as Defendant, found themselves before Famakinwa J of
the Lagos High Court. It is important to note that at the time of the
expiration of the two years, he was already in arrears of rent.
The
relief was for:
‘‘Recovery of possession of the premises
known as and situate at N0. 1 Ilabere Avenue, Ikoyi Lagos state which he was put into possession by the
Plaintiff as service tenant at the time of his employment with the Plaintiff;
and an injunction to restrain the Defendant from continuing to occupy the said
premises’’
The
Plaintiff also claimed for mesne profits.
The
principal issue that turned up for determination before His Lordship was
whether proper and adequate or valid Notices to Quit and of Owner’s Intention
to Apply for Possession, in line with the relevant Rent Laws, were issued before
resort was had to judicial proceedings for ejection. Famakinwa J in his
Judgment held thus:
‘’From the standpoint of clarity in my
Judgment, it is clear that I did not accept or find as a fact that the tenancy
between the parties is a yearly tenancy. It is my Judgment in the substantive
suit that the Defendant is a monthly tenant. Consequently, in order to
determine his tenancy, the Defendant ought to be served with a Month’s notice
to quit. If the Defendant refused to give up possession, he should be given 7
days notice of intention to recover possession. Still if the Defendant is still
holding over in the premises, he becomes a statutory tenant. In order to eject
him from the premises, the Plaintiff should commence an action to recover
possession from him. To this point, the tenancy of the Defendant is not
properly determined. He was served with 7 days notice to quit.’’
In
the alternative, The Learned trial Judge held as follows:
‘’The Defendant in
my view is a tenant at sufferance. Upon receipt of Exhibit A, the tenancy of
the Defendant in the premises was brought to an end, as he is a service tenant.
In passing, one has to make the point that the Defendant is a service tenant
because the premises was allocated to him by his employers, while he was in the
employment of the Plaintiffs. In my Judgment this morning, I have defined the
words ‘tenant at sufferance’. It is common ground between the parties that the
Defendant is a statutory tenant.
‘’ As Defendant is a
tenant at sufferance holding over without consent or dissent of his Landlords,
tenant at sufferance is a very precarious tenancy as he requires no notice to
quit. If I am right in this direction, then the Plaintiffs would succeed for an
immediate possession of the premises because the statutory notices served on
the Defendant in this case are superfluous and unnecessary. It is unreasonable
for the Defendant to continue to live in the premises and consequently the
court would make an Order on him to vacate the premises immediately.’’
On
Appeal to the court of Appeal, the Justices of that intermediate Appellate
Court reasoned thus:
“True, at common Law, a tenant who entered
premises on a lawful demise or title but wrongfully continues in possession
after the expiration of the period under the demise or title without the
consent or dissent of the person next entitled is a tenant at sufferance, but
for purpose of the Recovery of Premises
Edict No. 9 of 1976, there are only two classes of tenants and the typography
does not include a Tenant at sufferance. It is for this reason that section
16(1) of the Edict No. 9 of 1976 prescribes the statutory notices to be served
on four classes of statutory tenants, namely, tenants-at-will or weekly
tenants, monthly tenants, quarterly tenants and yearly tenants. It says nothing
of tenants at sufferance, even if they resemble tenants- at- will.’’ (Italics not mine but the Court’s)
In
effect, the court overruled Famakinwa J’s alternative holding that the Defendant
was a tenant at sufferance since, according to the Appellate Justices, no such
class of tenant exists in the Recovery of Premises Edict governing the issue.
Accordingly,
the Court finally held on the matter:
‘’ I hold therefore,
that the Appellant, (i.e Owodunni, the tenant) was a statutory tenant and was
entitled to the necessary statutory Notices under the Recovery of premises Law
of Lagos State. He was clearly not a tenant at sufferance…It is clear that the
Order of possession made by the learned Judge was improperly made and the
Appellant is therefore entitled to remain in possession of the premises until
the tenancy is determined according to law.’’
The
matter finally went on Appeal to the Supreme Court which
court, after hearing the parties, handed down what the legal community has
always known to be the law on this aspect of our corpus juris. Speaking through its Justice Nnaemeka-Agu, the Apex Court
‘’It is clear from
the pleadings and evidence on record, including Exhibits B, C, D and F that the
Defendant’s rents (ie Owodunni’s rents) were payable annually. This fact was in
fact conceded by the notices, Exhibits ‘’G’’ and ‘’K’’ and reinforced by
Exhibits ‘’F’’ and ‘’J’’.
‘’It is therefore clear that the Defendant was
a statutory yearly tenant. I believe it is the Law that where a yearly tenant
holds over where a statutory tenancy is implied, the tenancy will be subject to
such terms and conditions as are not inconsistent with yearly tenancy. From the
provisions of Section 16 of the Law set out above, he was entitled to a six
month’s notice. But Exhibit L, dated the 15th day of September,
1983,… From the date on the face of it, it gave the Defendant only 8 days
notice to quit the premises instead of 6 months.
“Also, as the
tenancy commenced on the 23rd of May 1973 and continued thereafter
from year to year, it must be conceded that the seven days’ notice to quit was
given at the middle of the term which was current in 1983.
‘’ It can,
therefore, be seen that Exhibit L was defective in two material respects,
namely
(i)
instead of giving the tenant a six
months’ notice which was necessary to determine a yearly tenancy, it gave him
only eight days; and
(ii)
instead of giving him the notice to
terminate at the end of the then current term of tenancy which was due to end
on the 22nd of May, 1984, it just gave him notice at the middle of
the term.
‘’ It is settled
that a notice to quit in order to be effective ought to determine the tenancy
at the end of the current term of tenancy’’.
Thus,
Owodunni the tenant was allowed to continue in occupation of the property as a yearly tenant until such time
when the Plaintiff-landlord-company issues appropriate and valid notices ending
the tenancy. The court ordered him to pay the accrued rent while enjoying his
term until validly terminated.
Since
then, the law has always been that only a valid Notice to Quit to determine the
tenancy, particularly a yearly tenant, at its current term, properly issued and
served on a Tenant, can validly commence the process of ejection in tenancy
matters and, afortiori, if no
such valid Notices were issued and the tenant does not voluntarily relinquish
his holding, the tenancy can go on from year to year in perpetuity. If the
tenant is in default of rent, that does not, on its own, dispense with the
requirements of valid Notices since payment of rent is merely an incidence of and
not a requirement for tenancy as there are non-rent –paying tenancies.
The
difficulty had always been in knowing when to issue what is a valid Quit Notice
for, as the Supreme held above, for a Quit notice to be effective, it ought to
determine the tenancy at the end of the current term of tenancy. It
could be issued at any time but before the commencement of the last six months that
culminate in the anniversary of the tenancy in case of a yearly tenancy. See
for instance, the Rivers
State Rivers
State
‘’
Notices… may be given at any time prior to the date of determination of the
current terms of tenancies, but they shall not be effective if the time between
the giving of the notice and the time when the tenancy is to be determined is
less than the respective periods set out in section 6’’.
This provision is the same in all the rent laws of
the state.
The
AP case, therefore, known officially as African Petroleum Limited Vs. J.
K. Owodunni and reported in [1991] 8 NWLR Part 210 Page 391 has always
been the leading authority and guide to both tenants and landlords and legal
practitioners alike in conducting their affairs in this area of our civil
relationship.
Many
Magistrates boldly display a copy of this Law Report on their table since, in
many Jurisdiction, rent matters constitute more than 60% of their civil cases.
The law on this matter, therefore, was settled, or so we thought.
Odutola
Vs. Papersack
Less
than 20 years later, another tenant had differences with his landlord in
circumstances that are, on the material aspects, similar to, infact, the same
as African petroleum and Owodunni. Briefly, these are the salient
facts: a company called Thoresen and company Limited rented a property for a
fixed term of years but before the expiration of its fixed term, another
company, Papersack Nigeria Limited, its sister-company, owned by the same
person, moved into the property without the consent of the landlord.
When
the landlord eventually became aware, he accepted the occupation by Papersack
as the latter subsequently paid yearly rents to it for some couple of years.
They
could not formalise the tenancy between them but what is important is that the
landlord accepted yearly rents from the Papersack Company.
When
Papersack could not pay its subsequent rents, Odutola the landlord, served on Papersack
the tenant, seven days’ notice to quit from the property after the 6 months’
Notice it initially issued. Papersack the tenant held over.
The
parties found themselves before Adeyinka J of the Lagos High court who heard
their grievances and positions.
The
case of the Landlord-plaintiff, Odutola, was that the Papersack tenant which moved
into the property was a tenant at will and that that being so, the tenancy was
determined by the seven days’ Notice of Intention to recover possession from
the Respondent.
On
the other hand, the case of the Tenant-Papersack- Defendant was that it was a
yearly tenant by virtue of the oral lease agreement between the parties; that its
tenancy was not properly determined and that it was entitled to a 6 months
notice which ought to have terminated on the anniversary of the lease. In other
words, that although they were served 6 months Notice which they were entitled
to, being yearly tenants, yet the Notice was defective by reason of not being
served to end at the anniversary of the current term. They cited and relied on
the AP Vs. Owodunni case.
What
is clear from the Report is that the landlord actually gave 6 months notice
before it gave the 7 days notice but the period of giving the 6 months was not
timely enough to end the tenancy at its anniversary. The Landlord’s counsel
contended that although the landlord gave six months Notice, all that the
tenant was entitled to was merely one week Notice and that the six months
period given was a surplus.
It
must be noted that under cross examination, the Landlord stated thus:
‘’ As far as Blocks
B and C are concerned, Papersack succeeded Thoresen as tenant. The defendants
are one year tenant. The N200,000 per annum is not the current rent. I did not
negotiate revision of rent’’.
Adeyinka J after
examining the law and the facts reasoned along this line:
‘’ The Defendant
then continued in occupation of the warehouse as a trespasser and as per 1st
Plaintiff’s tabulation Exhibit P3, the Defendant paid rent to the 1st
Plaintiff. The acceptance of rent from the Defendant was not per se evidence of
any new tenancy. The Court will have to determine whether in the circumstances
of this case, a new tenancy was created between the parties. See Udih Vs.
Izedonmen (1990) 2 NWLR (Pt 132) 357, Ratio 8. The 1st Plaintiff’s
solicitors forwarded a lease agreement to the Defendant which if it had been
approved or executed by the Defendant would have created a new tenancy between
the parties, rather the Defendant by its letter of 18/9/85 Exhibit D9 raised a
six points comments on the lease agreement and requested the 1st
Plaintiff’s solicitor to amend the draft lease accordingly. It follows that no
new written yearly tenancy was created between the parties. An oral yearly
tenancy agreement could not have been created by the parties in May 1982 as
testified by the 1st Defence Witness in view of the late Chief
Aboderin’s letter dated 24/4/82 pleading for extension of time till 31/12/82 to
move out of the warehouse. The defendant thereafter remained a Tenant-at-will
paying rent. I find as a fact and I so hold that no new yearly tenancy was
entered into by the parties from 1st June 1982 to 31st
May 1983 and from year to year but a tenancy at will from 1/6/80 when Thoresen
& Co Ltd ceased to be a Tenant.’’
Like
the AP case, this matter began the journey through the judicial
hierarchy and stopped over at the Court of Appeal which reviewed the decision
of Adeyinka J, disagreed with the learned trial Judge and finally reversed his
lordship.
Relying on the evidence of the witness as elicited
from him under cross examination as reproduced above where he stated that the
Defendant is an annual tenant and coupled with the six months’ Notice to quit,
the Court of Appeal held as follows:
‘’ This admission
supported the case of the Appellant that it was a yearly tenant and it is
reinforced by the fact that the Respondent gave the appellant six months Notice
to quit. There was no doubt that the relationship between the Appellant and the
first respondent as understood by both parties was a yearly tenancy.
I therefore agree
with the appellants that the trial court was wrong in holding that the
Appellant was a tenant at will.’’
The
facts of this case, in my opinion, are in no way materially different from
those of the AP case. In both, the occupants became tenants because their
occupancy was with the consent and agreement of their respective landlords. In
the case of the AP, the lawful occupancy was right from the beginning while in
the Papersack case, it was subsequent. What is important, for purposes of
creating tenancy, is lawful occupation for, as Eso JSC stated in Oduye
Vs. Nigeria Airways, 1987 2 NWLR (pt 55) 12 at 141 ‘’it
would not matter whether he pays regular rent, subsidised rent, or indeed, no
rent. What is necessary is lawful occupation. It applies to public servants as
well as people paying commercial rent’’. Thus, both Owodunni and Papersack
Ltd were respective tenants of their respective landlords since their occupancy
was lawful. In both cases, they were given Notices although while Papersack Ltd
was given 6 months’ Notice Owodunni got less period. In both cases, The Quit
Notices, were defective in that they did not end the tenancy at the anniversary
of the current term. In AP case, it was written to Owodunni at the commencement
of the tenancy that he would yield up possession whenever he stopped being the
Department manager of the company just as Papersack Ltd was said to have
written, asking for time to move out when the two years paid for expire.
In
both, the manner of payment of rents was neither weekly nor monthly but clearly
yearly and, in both, still, efforts and attempts were made to label the tenants
as tenants at- will as opposed to yearly Tenants in order to facilitate their
swift ejection.
It
is also important to note that in both cases, the tenants owed their respective
landlords arrears of rents of varying years.
The
underlying, fundamental principle and fact, however, are that, in both, the validity
of the Statutory Notices was in issue.
The
Landlord Odutola having now lost his victory which he won at the High Court,
appealed to the Supreme Court.
Did the
Supreme Court stand by its decision in AP? Did it hold, as it did in AP,
that until and unless a valid Quit Notice is issued, no valid recovery process
can be begun or commenced even if the tenant, like Owodunni, is in arrears of
rent?
Surprisingly,
the Supreme Court took a different stance. It held, contrary to the AP case,
that Papersack Ltd was a tenant-at-will and that seven days’ Notice was
enough to ground the proceedings for recovery. The concurring Judgments are
even more explicit in their contradiction with the AP case. At page 498 of the
Report, the Court held thus:
‘’ I am of the firm
view that from the moment a year’s rent became due and payable by the
Respondent but remained unpaid, the yearly tenancy, if any, created by the
conduct of the parties thereto came to an end by effluxion of time and the
Respondent thereupon became a tenant at will to the 1st appellant by
continuing or remaining in possession of the property. In other words, the
Respondent at that stage is said to be holding over the property and in that
capacity, became a tenant at will’’
It
has been difficult for me, try as I did, to reconcile this case, especially the
concurring decisions, with the decision of this same Court in the AP case. Here,
the Supreme Court is now saying that once a yearly tenant is in default of his
rent, he automatically becomes a tenant-at- will and so subject to a week’s
Notice and not six months’. This contrasts sharply and painfully with the
reasoning of the same Court in the AP case where the same Court stated:
‘’I believe it is
the Law that where a yearly tenant holds over where a statutory yearly tenancy
is implied, the tenancy will be subject to such terms and conditions as are not
inconsistent with yearly tenancy.’’ Remember that in this case, the tenant,
Owodunni, was also owing rent.
Let us reproduce in
some detail, the holding of the Supreme Court in the AP case to make the
point clearer:
‘’The Defendant’s
employment with the Plaintiff was terminated on the 24th of November,
1977. Since then, that is for a period of 14 years, the Defendant has remained
in possession of the premises he occupied essentially by the reason of his
employment with the Plaintiff. The plaintiff has, all through, by its self and
through its counsel, tried to get him out of the premises. But he still lives
there. Since Counsel came into the matter some twelve years ago, eight
different Notices to Quit or of intention to go to Court has been issued and on
two occasions, Notices issued and served have been cancelled apparently to
enable Counsel to begin properly. But once more, the Plaintiff must fail again
because of its failure to serve correct and proper Notices. This is sad. The
Law, it has been said, is an ass. And the unruly ass must keep galloping along
so long as litigants refuse to follow simple rules clearly laid down by
statutes.
‘’This is of the
very nature of Justice according to law: ... Be that as it may, the two courts
below were right to have held the Defendant’s tenancy had not been determined
according to law, and that the Defendant would remain in possession until that
is done.’’
The
Odutola case which now contradicts the AP case, at least on the issue of what
happens to a yearly tenant in default of rent and on holding over, is reported
officially as Odutola Vs. Papersack
(Nig) Ltd [2006] 18 N.W.L.R
470. It now stands in contradiction to the AP case which is also from
the same court. Agonisingly, these are final decisions of our Final Court
If
due process was followed- it was not, with due respect- the Supreme Court would
either have expressly overruled itself on the AP case or made definite pronouncements
distinguishing it by telling us why the principle there would not apply to the
Papersack case. It did none of these, meaning, in effect, that both are subsisting
Judgments of the same Supreme Court. The AP case was referred to it by Counsel
in course of his address. This approach to justice administration, with due
respect, does not make for transparency.
THE DOCTRINE OF
STARE DECISIS
The
above discussion of the cases of AP Vs. Owodunni and Odutola Vs.
Papersack is how we want begin our appreciation of the focus of this paper
which is on transparency in the judicial process and the need to adhere to the Rule
of stare decisis. For the avoidance of doubt, the paper does not really
focus on the merit or otherwise of the Judgments of the courts here examined
but is concerned, rather, with how well such Judgments align with previously
existing Judgments on the same matter. The paper also examines the danger in
not following precedents as well as the order and the certainty which are
infused into the practice of Law and justice administration generally whenever the
rule of precedents is adhered to.
In
specific terms, how well and how efficiently, have our courts, especially the
Intermediate and Final Courts, stood by their decisions when called upon to
decide cases that are similar or, as we say in law, when the facts are on all fours?
(ie, the four legs in the previous case are the same in substance, with the
four legs in the subsequent case they are being called upon to decide). Why
should not the subsequent case be decided like the previous one since the four
legs are the same?
The
Doctrine of stare decisis, the Latin for ‘Stand by your Decision’
came with the common law, that resilient system of law wholly developed by the
Judges with occasional parliamentary intervention.
At
the Singapore IBA conference in 2007, the Prime Minister Mentor who addressed
the opening ceremony told participants that at the start of independent rule
for the new and young country of Singapore, he, as Prime Minister, announced to
the citizens that they would be looking up to and seek due guidance from the
common law as their legal system.
The
Doctrine of stare decisis, like the common Law itself, has endured for
all times. It puts an obligation on a court or Judge to follow previous decisions
within more or less well-defined limits. This is a very logical expectation. This
is called the doctrine of precedent. It includes the power of the court to
decline to follow its previous decisions in certain cases and also its
authority to overrule itself in appropriate cases. Thus, it does not make
robots of Judges.
The
part of the case that is said to possess authority is the ratio decidendi,
i.e, the rule of law upon which the decision is founded; in other words, the
reason(s) for the decision. In Jacobs
Vs. LCC(1950) 1 A.C 361, it was held that if more reasons than one are
given by a Court for its Judgment, all must be taken as forming the ratio
decidendi. Professor Glanville Williams, the popular English Jurist in his
equally popular student Hand Book, Learning The Law, states that
“finding the ratio decidendi of a case is an important part of the training
of a lawyer” and that it is not a mechanical process but ‘’an art
gradually acquired through practice and study’’. In course of this presentation,
the validity of this statement will be made more appreciable as we examine a
case which demonstrates it.
The
doctrine declares that cases must be decided the same way when their material
facts are the same. Obviously, it does not require that all the facts should be
the same since, in the flux and tide of life, all the facts of a case will never recur, but the legally material facts may recur and
do recur and when they do, as they do always, it is with these that the
doctrine is concerned.
Simply
put, the ratio decidendi of a case is the material facts of the
case plus the decision thereon. See A. L. Goodhart “Determining the Ratio Decidendi
of a case” in Essays in Jurisprudence and the common Law
(1931) p 1.
The
doctrine of ratio decidendi although elementary and a part of our received
English Law, is one of the foundational pillars of our legal system and is now
a part of our Constitution. See section 287 of the Constitution.
To
that extent therefore, it can be argued that non-observance of the principle or
its misapplication by courts lower in the hierarchy amounts to a constitutional
breach.
Observance
of the principle assists in the orderly development of our law, makes the law
less of an ass as the outcome of a legal dispute becomes fairly predictable
like the weather and prevents the injustice occasioned by the infusion of a Justice’s
personal prejudices and personal biases into the judicial process and by such
prevention, enhances the quality of Justice. In short, its observance prevents
justice from being determined ‘according to the length of the Lord Chancellor’s
foot’.
It
must be clearly stated that breaches of the principles of the doctrine leads to
a ridiculing of the court itself and the court system as an institution. See Salmond’s
Jurisprudence 11th Edition at page 207 where he referred to
such a court as schizophrenic. This statement was cited with approval by
Justice Idigbe in CHIME Vs. ELIKWU 1965 ALL NLR page 459.
It
is the observance of this common law – Constitutional provision that gives the
court- lawyer the needed impetus to appeal a case from the lowest court to the
Highest, strengthened in the belief that a particular laid down precedent was
not followed or was improperly followed or was misapplied or misunderstood. See NWAKIRE Vs. COP (1992)
5 NWLR (PT 241) where the Accused-Appellant lost from the Magistrate
Court, to the High Court and at the Court of Appeal but all those decisions were
reversed by the Supreme Court to which he finally appealed.
Regrettably,
in recent times, this principle of Standing by your Decisions, has
suffered so much neglect and breach and the breach so pervasive in nearly all
our courts of Records and in all areas of our Law and so overwhelming such that
concerns are now being raised.
It
is now common to see contrary decisions of the same court on the same issue or
area of law – procedural, substantive and in Election petitions and political
cases.
The
issue has become so pervasive that the complaints and embarrassments are being
heard and felt in every important quarter.
There
was a cartoon in a leading Nigerian Newspaper shortly after the Yar’Ardua V.
Buhari Supreme Court decision in December 2008 in which the Supreme Court
Justices were divided almost down the line in their Judgment. I tried hard but
unsuccessfully to transpose that cartoon into this paper since pictures speak
louder than the most eloquent; but my efforts were frustrated by technology
problems which even delayed the submission of this paper. In the cartoon, an
accountant who was in debt to his boss, had his boss demanding the payment for
which he implored his boss to give him 2 hours as his creditor, a lawyer, was
on his way to pay him, the accountant, a debt which the lawyer owed him, the
accountant. The boss, perplexed, enquired of his creditor, the accountant, how
he came to be owed by a lawyer for, according to the boss, it is lawyers that
are usually owed and not the other way round. The accountant replied that his
boss was right but that in this case, he, the accountant and the lawyer betted
or wagered over who, between Yar’ardua and Buhari, would win the case at the
Supreme Court. That the lawyer, after looking up many authorities, stated that
Buhari would win and he, the accountant, after looking up his own ‘authorities’,
too, stated that Ya’ardua would and that his own analysis of the case came true
as Yar’adua won and that that was how the lawyer became indebted to him!
In
graphic terms, this is some of the embarrassments associated with non-observance
of the principle as lawyers, being priests in the metaphorical Temple of
Justice, can no longer competently prophesy what the outcome of the legal divination
would be, thus giving the triumph of that sacred duty to non priests and
initiates and lay persons who engage in blind guesses and sometimes get it
right. Unknown to many of us, Law has ceased to be a science but a subject of crystal
ball gazing, making it less and less necessary to be a subject of rigorous
intellectual exercise, whether in learning or during earning, since just about
any one can predict the outcome of a court dispute more correctly than the
lawyer. That is what the Guardian Newspaper cartoonists seem to be saying
there.
When
the United State’s Justice Holmes defined law ‘as the prophecies of what the
courts will do in fact and nothing more pretentious’ he clearly did not
intend that persons not learned in our profession will have more accurate
prophecies of these court outcomes.
As
stated, the consequences of this worrisome state of affairs have become
pervasive such that it became an issue at the Oshogbo National Executive Committee
(NEC) meeting of the Bar. The issue even made it to the communiqué for, in page
4 of the communiqué of the Nigeria Bar Association National Executive Committee
(NEC) issued at the end of its meeting held on Thursday 19th and Friday 20th February, 2009
at Wocdif Center Oshogbo Osun State
“4.
The state of the Judiciary in Nigeria
NEC
calls on the Justices of the court of Appeal to refrain from delivering
contradictory Judgments. NEC insists that Judgments of the court of Appeal must
show consistency.
(ii)
Doctrine
of stare decisis:
NEC condemns the outright disregard by some
panels of the Court of Appeal (and even High Courts) for the doctrine of stare
decisis, which requires them to be bound by Judgment of courts above them in
the hierarchy. NEC categorically asserts that this act of judicial rascality
must cease forthwith”
In
the same vein, a Senior Advocate in an interview with the Guardian Newspaper of
Thursday, June 18, 2009; lamented the now common occurrence of conflicting
decisions of our Court of Appeal. Clearly, therefore, the matter has become one
of National concern. That it is even being discussed here now is irrefutable
proof that what was thought to be a ring worm is fast snowballing into scabies
of pandemic proportion and no lawyer’s professional health is immune to its
devastating ravages, if such a lawyer
practises within the pandemic jurisdiction.
The
impression given by all those who have expressed concern over this issue is
that only the Court of Appeal and the High Courts have their Judgments conflicting,
contradicting and inconsistent. From my findings, it would appear that this is
not entirely correct. The conflicting Judgments from our courts, if truth must
be told, are also to be found in Supreme Court Judgments as we demonstrated at
the outset of this presentation and these conflicts are to be found in nearly
all areas of our law- procedural, substantive,
civil or criminal etc etc.
It
is understandable why there is restraint in being loud about complaining inclusive
of the Supreme Court: that Court is a Super
Court Oyo
State Super Court
Complaints
against such institution and its personnel must, therefore, if the course of
wisdom is anything to go by, be measured and restrained if not totally avoided.
However,
it must be acknowledged for the public good, that any such total
avoidance of complaints or criticisms against the Decisions of that Super Court
‘’The
decision of the Supreme Court is final. Final in the sense of real finality in
so far as the particular case before that court is concerned. It is final for
ever, except there is legislation to the contrary and it has to be legislation
ad hominem. The Supreme Court, and it is only the supreme Court, may depart
from the principles laid down in their decision in the case in future cases,
but does not alter the rights, privileges or detriment to the parties
concerned, arising from the original case. Such is the constitutional power of
the Supreme Court that learned counsel probably rightly, wondered, if the
Justices of the Supreme Court were super men. Let me answer the question.
‘’The
Supreme Court is, under the constitution, a Super Court, deliberately meant and
made to be so, by the organic law, and the justices of that court, now only to
that extent of their decision, are supermen, meant to be so and so meant by the
Constitution. Of course, neither the court nor the Justices are meant to, or
could even be infallible. But the price paid for finality in litigation is that
the notion or the dread of infallibility has been sacrificed by the
constitution on the altar of finality.
‘’The
society can never be stable if there is no such finality in litigation. It is,
I very respectfully hold, desirable to have such finality, not withstanding the
price paid for it. As it is usually put, there must be an end to litigation. It
is such dread powers, therefore, that must necessitate pungent and
constructive analytical criticism of every Judgment of the court in law
journals and similar fora.
‘’The judgment of a Court should not be treated with
sacred sanctity, once it gets to the right critical forum’’.
Per
ESO JSC in Adigun V. A. G of Oyo
State
It
is, therefore, our professional duty, especially as a group, to draw attention
to errors in the Judgments of the Supreme Court especially when they conflict
and contradict to the extent that the practice of our only noble and learned
profession of law is imperiled. The only condition, in my opinion, is that we
do so with mild temper and deep respect. In this paper, the focus is not on
errors, per se, but on Judgments that conflict and contradict with each other
and with one another.
As
an intermediate Appellate court with many Divisions, the occurrence of
conflicting Judgments is to be expected more from the Court of Appeal than from
the Supreme Court. But, if the logic must be taken further, no such subsisting conflict
should be expected from the Supreme Court which has no Divisions but rather, sits
at a particular location and members of its adjudicating panel constituted by the
Chief Justice.
Sadly,
both courts, ie the Court of Appeal and the Supreme Court, have a share in this
matter.
THE COURT OF APPEAL
Let
us begin from the Court of Appeal and move on to the Supreme Court.
For
reasons of time and space, we shall consider only a few of the many conflicting
Decisions.
In
ADEOGUN & Anor Vs. FASHOGBON and Ors 2008 (17 NWLR) Pt 1115 at 149,
the Appellant as Plaintiff commenced an action at the Federal High Court Abuja,
against the Respondent for the following reliefs, amongst others.
i.
A
Declaration that the 2nd Defendant has no right and/or power to
recommend the substitution of the plaintiff with the 1st Defendant
as candidate of the PDP for Ife Federal constituency.
ii.
Declaration
that the proposed selection of 1st Defendant as the candidate of the
PDP for the Ife Federal Constituency by the 2nd & 3rd
Defendants is unlawful, illegal, unconstitutional, null and void and of no
effect whatsoever.
iii.
Perpetual
injunction restraining the 1st Defendant from allowing himself to be
substituted, or presented to the 4th Defendant as the candidate of
the PDP for election into Ife Federal constituency in the 2007 General
election.
This
was a case in which the Claimant was unfairly excluded from contesting an
election in which he had previously emerged as a candidate, having won the
primaries earlier.
We
have set out in details the reliefs sought in the case so that the point will
be appreciated when we review another case on essentially the same set of facts
which came before the same Court. While the suit was pending, the Electoral Body
went ahead with the conduct of the election without the Plaintiff (Claimant) as
a candidate.
The
learned trial Judge dismissed the suit. Hon Fashogbon, the shortchanged Candidate-Claimant,
appealed to the Court of Appeal, Abuja
The
court of Appeal dismissed the motion and held that the issues agitated in the
Appeal were still alive and thriving and therefore could not be said to be
academic merely because, subsequent to the filing and determination of the
suit, the election proceeded and was concluded without the Claimant.
Having
dismissed the motion, the court, relying on section 34(1) and (2) of the
Electoral Act, 2006 Per Aboki JCA at Page 30 of the Records held thus:
‘’The
provisions of Section 34(1) and (2) of the Electoral Act, 2006 have enacted and
placed an extra duty on INEC in its supervisory and monitoring roles over the
conduct of the affairs of political parties. To ensure fairness in this regard,
the procedure engaged by the political parties and INEC can be challenged in
court for the interpretation of the provision of the section. See the
unreported case of Engineer Charles Ugwu V Senator Ifeanyi Ararume and 2 ors SC/63/2007
delivered on the 5th day of April, 2007.
‘’
In conclusion, this Court has jurisdiction to entertain this Appeal on substitution
of a candidate for an election, which is a pre-election matter. This
application lacks merit and it is hereby dismissed”.
That
was on 7th June,
2007 when the Abuja Division of that court gave that Ruling which,
on Appeal to Supreme Court, was affirmed as the Supreme Court held that
“On the whole, the election of the 21/01/07 not withstanding,
the propriety or otherwise of the plaintiff’s substitution with the 1st
Defendant remains a live issue for determination in the judicial process. In
the event, I resolve the only issue in favour of the plaintiff/Respondent. On this
issue, I fully endorse the Ruling of the court below”.
As
we examine the next case, it will serve our purpose to remember that it was on the 7th June, 2007
that the Abuja Division of the Court of Appeal delivered the Ruling here
affirmed by the Supreme Court.
ODEDO V. INEC
Some
35 days later, a similar matter, exactly on all fours, came up before
the Enugu Division of the same court. That was the case of ODEDO V. INEC
(2008) 17 NWLR Pt 1117 at P. 554. Briefly, these are the facts: Charles
Chinwendu Odedo, the Appellant, a member of the PDP, contested the primaries along
with ten other contestants for the Idemili North and South Federal Constituency
in Anambra State
As
the date fixed for the election neared, Charles Odedo got information that his
name was substituted with that of one Obinna Chidioka based on which Charles
filed an action in the Federal High Court for a Judicial review of the action
of the substitution of his name with that of Obinna Chidioka in which he sought
the following reliefs.
- A
declaration that the 2nd Respondent having submitted a list of
PDP candidates it proposes to sponsor at the 2007 elections into the House
of Representatives for Anambra State Federal Constituency to the 1st
Respondent pursuant to section 32 of the Electoral Act, 2006, a
substitution of the Applicant’s name on the said list with that of Obinna
Chidioka after the 20th February, 2007 is unconstitutional,
null and void, the same not being in compliance with section 34 (1), (2)
and (3) of the Electoral Act, 2006. He also sought Orders of Injunction to
restrain.
The
reliefs were refused. In the interim, the election, as in Fashogbon case,
held without him participating as a candidate which was the issue he submitted
to the court for adjudication. Notice that it was the same set of facts in the
Fashogbon case: unlawful exclusion after winning the primaries; going ahead
with the election without the Claimant even whilst the matter is in medio
lites.
On
Appeal from the Judgment of the High Court, Respondents, as in the Fashogbon
case, brought a motion to have the Appeal dismissed or struck out on the
ground, as in the Fashogbon case, that the matter had become academic,
the election having been concluded without the Appellant.
There
is, therefore, no material difference between this Odedo’s case and Fashogbon’s.
What, then, did the Court of Appeal do? Did it stand by its decision in the Fashogbon
case? Did it refer to it and try to state why it would not follow it? Did
it overrule it, assuming it has powers to do so?
The
Court did none of those. Instead, by a majority, (Denton-West JCA, dissenting) it
gave in to this argument that the matter has become academic by reason of the
conclusion of the election without the Claimant as candidate. In effect, the
court contradicted itself when the Judgment or Ruling is placed side by side
with that of Fashogbon. At page 562 of the Records, reproduced at page
586 in the Law Reports, the majority held thus:
“In
the final conclusion, it is clear in view of the above that the Appeal now
pending has become an academic exercise in view of the fact that the election
was already concluded and an election tribunal which is the appropriate venue,
having been set up. Consequently, the appeal is struck out as a mere academic
exercise”
It
is to be remembered and stressed, that this paper is not concerned with the
correctness, on the merits, of these Judicial Decisions, per se; our concern is
mainly, the entering of conflicting and contradictory decisions on the same set
of fundamental facts.
In
this case, why should the Court of Appeal not have stood by its decision in Fashogbon’s
case given less than 2 months earlier when the cases are essentially the
same: in both, there was complaint of improper substitution; in both, the
election held whilst the matter was subjudice and without the Plaintiff;
in both, the respective counsel for the Respondent raised a motion arguing that
since the election had been held, the matter had become academic.
These
are the essentials, we mean, relevant facts that constitute the similarities in
the two cases. In the decision, the same court held that one was academic and
the other was not. This is not good for orderly governance of our polity and
the development of our law.
The
mystery of this state of affairs of delivering conflicting decisions deepens
when it is remembered that at the time of deciding the Odedo case, the Court of
Appeal was aware of the decision in both the Ararume case and the now,
more popular Amaechi case both of which deal exactly with the same legal
question of wrongful exclusion.
In
fact, in the Amaechi case, too, the election had been concluded without
the Appellant Amaechi and the losers in the other parties had moved to
the Tribunal.
Despite
the existence of this Supreme Court Judgment, and its own decision in Fashogbon,
the Court of Appeal decided the way it did. That the Hon. Justice
Soton-Denton-West, who dissented, did so on the basis of the Amaechi case,
showed indubitably, that the Court of Appeal was not per incuriam of
that decision. It was aware of it and still did not make any effort to
distinguish it or follow it. So, what happened? Why did they go the way they
did? It is beyond our ken. Only the Justices know.
When
the matter came on appeal to the Supreme Court, that court’s Justice Tobi who
read the Leading Judgment, expressed indignation that “this decision (ie the
Fashogbon decision) given on 7th June 2007 by the Abuja Division of
the Court of Appeal was not followed by the Enugu Division of the same court on
12th July, 2007, a decision which was given some 35 days or so
earlier”.
It
is this type of frustration in the litigation sub-sector of the legal
profession that so infuriated that leading advocate, now translated, Mr. Kehinde
Sofola SAN, into issuing a statement, after the Injunction in the popular Trinity
Mills case, to the effect that a way must be found to discipline Judges who
deliver judgments that are an aberration on the law. No such way has been found
and I am afraid, none can be found.
Our
Law Reports are littered with conflicts, conflicting and contradictory decisions
of the Court of Appeal on nearly every area of our law such that a practitioner
who relies solely on a particular decision to urge the court to his side may
not be acting wisely as he is more than likely to have his learned friend on
the other side reply him with a contrary decision on the point, not from the
supreme Court, but from the same court of Appeal.
It
is therefore to our relief that there exists a final court, the Supreme Court,
to which we can appeal to sort out the ‘judicial rascality’ as NEC christened
the situation. Unfortunately, although not in the same degree as that of the
court of Appeal, the Supreme Court, too, is sliding into the same judicial
quagmire. To this, we now turn.
THE SUPREME COURT
In
the opening of this presentation, we started, without pretence, with the
Supreme Court Judgments in which conflicting decisions were given on the same
issue. That was a civil matter.
We
are already aware of the abnormal decision of the Supreme Court of Abacha
V. The State [2002] 11 NWLR Part 779 at page 437 in which that court,
without reversing itself in the other cases where it had already laid down the
principles on quashing of information, especially in the case of Ikomi
Vs. The state, yet went ahead and beyond, to decide the Abacha case
against those principles. Like Denton-West, JCA, a Justice of that court
Ejiwunmi JSC, was bold enough not to go along with his learned brothers.
It
is our intention to discuss this matter somewhat in extenso.
‘’To hold otherwise is, in my respective view, to submit
to the tyranny of the majority in its capricious interpretation of settled
principles laid down in Ikomi Vs. The State’’.
-Ejiwunmi
JSC.
That
was the choice of words used by the Hon Justice Ejiwunmi in his dissent in the Abacha
case in which the Supreme Court looked the other way with respect to the
principle it enunciated in the case of Ikomi Vs. The State. For the
avoidance of doubt, the Ikomi case is the locus classicus on this
area of our law: the quashing of information.
-Ikomi Vs. The State: (1986) 3 NWLR (PT 28) 340 .The accused-appellant, Ikomi, was
accused of murder of the security detail attached to him as a High Court Judge
and the case of the prosecution rested mainly on circumstantial evidence: the deceased
reported for duty at the compound of the appellant . The following morning his
body was found lying on the ground in the compound. The medical report
certified the cause of death to be due to multiple injuries (strangulation and
haemorrhage).
It
is not disputed that after the accused reported for duty on that fateful night,
the two exit doors were locked and the keys were kept by the 2nd and
3rd appellants. Only the appellants knew where the keys were kept
and the only persons in the 1st appellant’s compound that night were
the appellants, the 1st appellant’s two daughters and the deceased.
There was no evidence that any other person or persons came to the compound after
the deceased had reported for duty.
In
an application to quash the information on the ground that the appellants were
not linked to the crime to warrant their standing trial, the Supreme Court,
affirming the Rulings of the courts below refusing to quash the information,
held that:
‘’Once
there are circumstances from which it can be justly inferred that an accused
could have committed the offence, he should be put on his trial whether there
are other co-existing circumstances which would weaken that inference or
whether the evidence leads irresistibly to the accused person’s guilt can only
be determined at the trial’’.
Accordingly,
the court declined to quash the Information, holding that it disclosed a prima
facie case against the appellants.
This
was the position of the law before the Abacha case.
THE ABACHA CASE:
THE
following facts were contained in the Information against the Appellant and
also on the proof of information which includes the statements of the appellant
which he made to the police. These are:
- Appellant,
not a soldier, was in Major’s office when
- One
katako, was the Appellant’s driver;
- Appellant
instructed the said katako to go to
- That
when the gang (otherwise his boys) needed a car for their mission,
- That
it was during the execution of the assignment that Kudirat Abiola was
killed by
- Subsequently,
- They
contacted the appellant who had a midnight meeting in the house of one of
them in kano at which meeting appellant agreed to and subsequently made
available the sum of $10’000 to each of them to escape to a foreign
country so as to avoid their being arrested.
- Upon
receipt of the money, they fled.
On
these facts, the High Court held and the Court of Appeal affirmed the holding
that there is a case for the appellant to answer.
Curiously,
the Supreme Court, in allowing the appeal and quashing the Information thus setting
the accused free, held that:
‘’The
charge against the appellant was based on suspicion as no linkage was shown
that the appellant knew what was being planned by what he did or said at the
relevant occasion.’’
It
is very difficult to reconcile this Ruling with that in Ikomi case in which
there was no direct link of the commission of the crime as the entire facts
were circumstantial and yet the Supreme Court held that he had a case to
answer. In the Abacha case, it was more than circumstantial as there was direct
evidence of the appellant giving out huge foreign exchange to the accused
persons to flee to a foreign country to avoid arrest and also the fact that he
instructed his driver to carry the men to Lagos in course of which the deceased
was killed all of which established a direct link to the crime.
Infact,
the Supreme Court Ruling as reproduced above, is, on the state of the facts as
outlined in the matter, in direct conflict with the principle it enunciated in
the Ikomi case where it was stated that ’Once the circumstances from
which it can be justly inferred that an accused could have committed the
offence, he should be put on his trial whether there are other co-existing
circumstances which could weaken that inference or whether the evidence leads
irresistibly to the accused person’s guilt can only be determined at the
trial’’.
It
was in these circumstances that the Hon justice Ejiwunmi, in disagreeing with
his learned brothers, made the statement quoted above.
O.O.M.F Ltd Vs.
NACB Ltd
Very
recently, the Supreme Court in the case of O.O.M.F Ltd Vs NACB Ltd Pt.
1098 at pages 412-438, held that a court does not have jurisdiction to
entertain a matter where appropriate filling fees were not paid. This decision
was in April 2008.
However,
on Feb. 13 2009 ,
about 10 months after O.O.M.F. V NACB, the same court, in AKPAJI
Vs. UDEMBA pt. 1138 at pages 545-576 held that non-payment of filling
fees was merely an irregularity and does not affect jurisdiction.
What,
then, is the law on the point?
WHAT SHOULD A MAGISTRATE DO WHEN ISSUE OF JURISDICTION
IS RAISED IN EJECTION PROCEEDINGS?
In
OLUWO Vs. ADEBOWALE (1959)4 FSC at page 142, the Supreme Court
held that where the issue of bona fide is raised on title concerning land in a
tenancy matter, the magistrate has a discretion to either strike out or adjourn
the case sine die.
However,
in Bisiriyi Vs. H.A. Agusto & Anor, 1968, All NLR reprint edition
page 9, ratio 2, the same court held: ’as soon as a Magistrate is
satisfied that the question of title is bonafide raised , he should stop the
cause and go no further’’. On a closer examination, this later decision is
in conflict with the second limb of the Adebowale holding.
It
is necessary to restate that we are not here concerned, really, with the
correctness or otherwise of any decision or Judgment of the Supreme Court but
with the occurrence of the conflicting judgments which throws uncertainly into
our jurisprudence, makes law practice, especially litigation, more of a game of
chance and less of a science lacking fairly predictable outcome.
We
do not also mean to be understood as advocating that the Supreme Court should
be immune from errors or mistakes in course of its judicial duties since this
is not a realistic expectation. The focus of our enquiry into its Judgments,
indeed, our interest, is that when errors occur, the Court should overrule
itself in such situations and not allow the situation as we now have where two
conflicting Judgments stand.
Indeed,
the need to balance between these two extremes of predictability to avoid uncertainty
(and yet not mete out injustice) and overruling itself to avoid perpetuation of
error (and do justice) has long been recognised by the Supreme Court itself in
the case of JOHNSON vs. LAWANSON (1971) 1 All NLR 56.
In
that case, a full court of the Supreme Court overruled a Privy Council decision
in Maurice Goualin Ltd Vs. Aminu.
In
the same case, it overruled three of its previous decisions in ODENEYE V
SAVAGE 1964 NMLR 115; WILLIAMS V. AKINWUMI
(1966) 1 ANLR 115 and JOHNSON vs. ADEBAYO.
This
is a very commendable and confidence-building device in the judicial system as
it becomes clear to all that those reversed authorities no longer represent the
law. This is more ennobling than the present practice of deciding
‘’subsequently’’ in a way that contradicts ‘’previously’’ without saying so and
without coming out plain to say so and to set the ‘’previously’’ aside. Because
of the importance of the ennobling reasoning of the Supreme Court in course of
overruling itself in this case in relation to what we have been discussing, it
is sagacious that we set out the reasoning in full:
‘’We
are now faced with this situation in which the decisions to which we have
referred have created a conflict of such a serious nature as to confuse
practitioners and introduce a serious element of uncertainty into our law”.
This
approach is salutary.
The
position, we submit, is more precariously uncertain now, than it was then as
conflict and contradiction can now be found in nearly every area of our law and
no practitioner who makes regular appearances in our courts can claim he has
not been confused, even confounded and frustrated by the prevalence of conflicting
and contradictory Judicial Decisions. Even Judges, particularly of the High
courts, are not spared the effect of this unhealthy judicial state of
affairs. Let us take some few more examples.
THE ISSUE OF LEAVE
TO APPEAL
It
is the Law that NO LEAVE is required, whatsoever, (irrespective of the nature
of the Ground of Appeal-whether of law, fact or mixture of both) to appeal
against a FINAL Decision of the High Court to the Court of Appeal. This is the
proper interpretation of Section 220 of the 1979 Constitution now Section 241
of the extant Constitution. Thus, the Supreme Court in the case of IYALABANI
Vs. BANK OF BARODA [1995] 4 SCNJ 1 at
page 45 and AQUA LTD Vs. ONDO STATE SPORTS COUNCIL [1988] 4 NWLR Pt. 91 at page
622 at page 643 declared that : ‘’In summary , the position
of the law may be thus stated – under Section 220 (1) (a) [now section 241], a
general right of appeal to the Court of Appeal as of right from the
final decision of the High Court exercising original jurisdiction enures to a
litigant in both civil and criminal proceedings irrespective of the nature
of the grounds of Appeal.
However,
in another Supreme Court case of COOPERATIVE & COMMERCE BANK NIGERIA
LIMITED Vs. OGWURU (1993) 3 NWLR Part 284, at page 630, particularly
page 633, a different decision, different from and in conflict with those
handed down in the Iyalabana and Ondo sports council cases was decided
by the Court. In the Cooperative and Commerce Bank case, the High Court
of Justice, Onitsha
The
Court of Appeal refused the application on the ground that the affidavit did
not disclose good and substantial reasons why the appeal could not be filed
within time. On further appeal to the Supreme Court, that Court stated,
regarding the appeal from the Onitsha High court to the Court of Appeal that:
‘’Looking
at the application before the court of Appeal which was filed on the 17th
of April, 1989, the prayers therein are not complete, thus rendering it
incompetent. Since the appellant is out of time of appeal, it needs the
following three prayers in its application: 1. Extension of time within which
to apply for leave to appeal, (2) Leave to appeal and (3) Extension of time to
file the Notice and grounds of appeal’’.
On
this ground that the appellants needed the three-prayer-relief in addition to
the reasons given by the Court of Appeal with which it agreed, the Supreme
Court dismissed the appeal.
Clearly,
this decision conflicts with and contradicts the reasoning in the Iyalabani
case where the same court held that appeals from the High Court to the
Court of Appeal in final decisions are as of right irrespective of the Ground
of appeal.
It
does not require any special gift of discernment to know that whatever conflicts
that exist in any Supreme Court Judgment have the clear potency of creating
further conflicts in the judicial activities of the courts below. Not
surprising therefore, the Court of Appeal in UDE UBAKA & SONS LTD Vs.
C.C EZEKWEM & CO (2000) FWLR PART 1 page 77 at page 78, relying on
the Cooperative and Commerce Bank case (supra) as wrongly, in our view, decided, held that an appellant in a final decision of
the High Court to the Court of Appeal needs the Trinity prayers before he can
succeed in an application to extend time to appeal!
Luckily,
although that court perpetrated that same Supreme Court error, it did not
perpetuate it for, six years later, in the case of ETHIOPIAN AIRLINES Vs.
ONU (2005) 11 NWLR PT 936 at page 214 particularly at page 216, it
recovered from the conflict and contradiction and correctly restated
the position of the Law when it held that: ‘’ An appeal against final
Judgment is as of right under section 241
of the Constitution of the Federal Republic of Nigeria, 1999. Therefore, no
leave is required for an appeal against it. In the instant case, applicant’s
prayers 1 and 2 as contained in the face of the motion paper seeking
enlargement of time within which to appeal and leave to appeal are unnecessary
and incompetent.’’
This
is the correct statement of the law as earlier Supreme Court decisions bear out
as can be seen in the following cases of UBA Plc Vs. SAMBA PETROLEUM 10
[2002] 16 NWLR PT 793, 361; IDAKULA Vs. ADAMU 2001 1 NWLR (PT 94) AT 322; KANO TEXTILE PLC Vs. G & H NIG LIMITED
[2002] 2 NWLR PT 751; and UZO & AGAKA Vs. OLADEJI [2000] NWLR PT 683,
until the contradiction in the Commerce Bank case intervened to introduce
confusion and uncertainty.
POLTICAL CASES AND
ELECTION PETITIONS:
It
is only in election petitions or in cases that have political colouration that
great many lawyers and the public at large momentarily become conscious of
conflicts or contradictions in the Judgments of our courts. This is
understandable for reasons that have to do with complex public interests.
But
as this discourse has endeavoured to demonstrate, this situation is more
prevalent in civil and non election matters than in election petitions. The
reason it is more pronounced and felt more
in the latter case has to do with the nature of election petitions as public
interest kind of matters in which the public at large, and one or the other of
the public members as individuals, have some kind of interest in one way or the
other in the outcome. Even at that, if the conflicts are to be found only in
this area of our law- Election petitions- that may be excused and explained
away because, politics, by its very nature, has also to do with public interest
and public policy which is a very unruly horse. In such situations, therefore,
it may be difficult for the Judex, to see his way through since he is the one
riding the unruly horse coupled with the Nationalistic exigencies that
political decisions impose. It must be conceded, as the case law bears out,
that Law has never won politics. In nearly every conflict between law and
politics, law hardly wins. Politics always wins.
It
is in this sense that one must understand the Supreme Court in Awolowo
Vs. Shagari in which the Supreme Court exempted the decision from
being cited as a precedent. No other decision before or after that case, to my
knowledge, has enjoyed such historic and heroic exemption.
It
is also in this sense that one must understand the Decision of the Court of
Appeal in the litigation that trailed the promulgation of the Electoral Act 2002
in which the Court of Appeal, found clearly as a fact that the procedure for
its making was flawed, yet declined to void it because various important
national elections have been held based on the flawed enactment and so to void
it would create a political vacuum of cataclysmic consequences in the obviously
frail polity. In such a political situation, the time honoured legal principle
enunciated in UAC Vs. Macfoy (that you cannot put something on nothing) could
not be applied.
It
is also in this respect that we must sympathise with the Supreme Court in the
shabby treatment it gave to one of its earlier decisions in ONUOHA Vs.
OKAFOR [1983] 2 SCNLR 244 where it handed down the law that in
matters of Association and Friendly Union and voluntary Associations, the court
will not interfere in its internal decisions no matter how inequitable or bad
it may be. It is enough that the majority of the people in the union or
association want it so, as long as it is not criminal and is
within the object of the Association. That has always been the decision.
However,
when political parties, (political parties fall within the class of voluntary
associations and Unions) started substituting one candidate with the other as
their candidates for general elections, the court stepped in, abandoning its
decision in Onuoha Vs. Okafor. The court, in the deluge of
election petition cases that trailed substitution of candidates, held that the
nature of the wording of section 34 (1) of the Electoral Act, has made it
imperative that it should step in. That is fine and as we have stated before,
the focus of this paper is not on the correctness or otherwise of Supreme Court
decisions but, at the risk of sounding repetitively boring, to what extent the
court stands by and respects its decisions subject to its powers to refuse to
follow and even overrule its previous decisions.
The
court, in our opinion, should have clearly declared, as it did in the Johnson
Vs. Lawanson case, that in the light of the provisions in the Electoral
Act, Onuoha Vs. Okafor was no longer good law. It did not do so. It
simply said in one sentence, almost in passing in Amaechi Vs. Omehia
& INEC [2008] 5 NWLR Part 1080 page 227 that ‘ it seems to
me, however, that in view of the contemporary occurrences in the political
scene, the decision needs to be reviewed or somewhat modified’. This is a
shabby treatment of its own decision. Who will modify or review it? The Supreme
Court of course, but still, it did not do so. It left the decision un-reversed.
That is akin to scorching the snake instead of killing it.
One
possible explanation for this approach to the sanctity of its own Judgment in
not according it a decent burial by not also pronouncing it dead ‘or undead’ is
that, apart from all we have said above concerning political cases, (although
am not prepared for the argument whether Judges make Law or merely interpret
law or both) our Courts, particularly the Supreme Court, have not fully
accepted the fact that in a way, what they say is Law although it is called Judgment.
As a court lawyer, I see no difference in practical terms, between the words, ‘Supreme
Court Judgment’ and the word ‘Law’. That being so, am prepared to accept, in part,
that an institution like the Supreme Court, whose pronouncement on any issue is
the final statement of the Law on that issue until parliament intervenes, is a
quasi law making institution especially in practice and procedure where
parliament hardly makes Law on. That being the case, the Supreme Court should
spare no energy and efforts, in making clear which of its Judgments (Laws, I
mean to say) is still alive or dead ( repealed, saved or re-enacted).
There
should be no doubt in that area. To hold, as the court did in the Amaechi
case, that the decision needs to be reviewed or modified without reviewing
or modifying it, amounts to walking half the journey. The complete journey
would have been to do as it did in Johnson Vs. Lawanson. As I said, it
seems that the political nature of our polity must imbue in all of us, an
understanding that the polity must be preserved at least, at this infancy
stage, precedent or no precedent. And this is how one can rationalise any
Supreme Court decision on political controversies called election petitions
that seem to go off precedents. In fact, in the Amaechi case, the Court
of Appeal was not interested in the doctrine and almost ridiculed the court
system until the Supreme Court came to the rescue. (We seriously recommend a
reading of that Judgment to any who is interested in the conflict between Law
and Politics) But in non-election matters, the Supreme Court should be clinical
in its adherence to the demands of the doctrine of stare decisis. Even at that,
the Supreme Court should be reminded of its own dictum that: ‘’ For
even then, it is against public policy to produce uncertainty in the Law.’’ See Eso JSC in Sonnar Ltd Vs. Nordwind
[1987] 3 NWLR page 520 at page 536 paragraph C.
We
will end this aspect of this presentation by referring to the statement of
Tennyson quoted above at the beginning and the cartoon of the Guardian
Newspaper referred to earlier. We have already explained the Guardian cartoon
which clearly demonstrates the danger of not following precedents as blind
guesses will be the order of the day.
The
quotation by Tennyson represents and amplifies the beauty of adhering to
precedents which is the opposite message in the Guardian cartoon. Two case
laws, (both from the Supreme Court: one ringing the truth contained in the
quotation and the other rhyming with the message in the cartoon) will now be
examined.
We
shall review these two cases in line with the Tennysian statement and the
Guardian cartoon and then make our conclusions which will include recommendations
on the way forward on this knotty and thorny issue. The two cases illustrate,
in diverse ways, the professionalism that adherence to precedents brings to the
judicial process and court practice and the rewards, as alluded to by Tennyson
in his statement, it brings to legal practitioners who master well the rationes
of cases on which they rely. In a way, the two cases also point to the
uncertainty that will characterise court practice if the doctrine of stare
decisis is ignored totally.
SONNAR (NIG) LIMITED
Vs. NORDWIND
The
first case is the Supreme Court case of NIKA FISHING CO. LTD V LAVINA CORPORATION
(2008) 16 NWLR pt. 1114 at page 509.
Before we review the case, let us review very
briefly, the facts and decision in SONNAR
(NIG) LIMITED Vs. NORDWIND (1987) 4 NWLR (PT 66) 520 because in the
Nika Fishing case, decided on Friday, July 11, 2008, the Supreme Court
beautifully and courageously stood by its principle of law in the
Sonnar case decided more than 2 decades earlier. I said ‘courageously’ because
it did not allow misguided sentiments of patriotism to seep into the judicial
process because, really and clearly, it was not necessary there. I underlined principle
of law because, although the decision was different on the
peculiar facts of the previous case, the principle remained the same. It was
the Counsel who did not notice the radical nature of the fact in Sonnar before
he chose to rely on it.
First,
the Sonnar case: In that case, a Nigerian Company, Sonnar (Nigeria Nigeria Thailand
The
Plaintiff filed an action in the Federal High Court alleging breach of contract
arising out of non-delivery. The Defendant filed an application in the High
Court praying the Court to stay the action on the ground that the Federal High
Court has no jurisdiction to entertain the action which ought to have been
filed at a German Court
Sowemimo
J ( as he then was) who tried the matter in the Federal High Court agreed and
granted the stay which decision the Court of Appeal affirmed.
On
Appeal to the Supreme Court, solely on the ground that under German law the
action was already statute barred, the Supreme Court held that giving effect to
the foreign jurisdiction clause would mean that the Plaintiff appellant would
forever lose the right to sue. The court allowed the appeal and set aside the
stay already granted.
That
this singular concern (of the action being statute-barred under German law) was
paramount in the mind of the court in considering its decision in this matter,
is evident in what transpired during the hearing of the appeal as the court
engaged Respondent Counsel thus:
Supreme
Court to Counsel: ‘’Are
we to allow the litigant to lose his chance of litigating, litigating at all
over half a million Naira, when, in any event, he has lost that chance in Germany’'?
Mr.
Oduba of Counsel: ‘’I
agree it would worry any man with conscience. But we are after justice
according to the Law’’.
S/Court: ‘’ Ought we not to consider that
though the evidence produced was insufficient, but then, you have no reply to
that evidence? But if it is not sufficient, you do not have to produce any
evidence. The slight evidence so produced by the Plaintiff has not been
contradicted!’’
Oduba: Section 57 of the Evidence Act
applies. Foreign Law is a matter of fact’’.
S/Court: ‘’ Hearing a case, or shutting a
man out, which of these produces justice?’’
It
was not surprising therefore, when, in its Judgment, the Supreme Court, after
reviewing the law on when to grant or refuse a stay and agreeing with the
popular Brandon J Test which favoured granting the stay in that case as did the
courts below, stated: ‘’ to these I would add, with all respect – where the
granting of a stay would spell injustice to the Plaintiff as when the action is
already time-barred in the foreign court and the grant of stay would amount to
permanently denying the plaintiffs any redress. This is the case here. And I
think justice is better served by refusing a stay than by granting one!’.
NIKA FISHING CO.
LTD V LAVINA CORPORATION
The
peculiar fact of Sonnar case, the fact of it being statute-barred
already in Germany where it ought to be heard, which was the basis for the
decision seemed lost on the High Court and the Court of Appeal in the Nika
Fishing case which came up for decision on essentially the same set of facts,
more than 20 years after the Sonnar case. Counsel in the matter, too, cared
less about this peculiar fact of time bar in the foreign court.
In
the Nika Fishing case, the ship was chartered to convey a consignment of
25,000 cartons of fish from Argentina Apapa , Nigeria Nigeria Argentina Nigeria
Appellant
finally appealed to the Supreme Court which, in allowing the Appeal and
reversing the two courts below, stuck to the principle of law as enunciated in
the Sonnar case (to which Justice Eso merely added the needed principle in view
of the peculiar fact) but (rightly) refused to follow the decision there because
of the major difference in the fact of time bar. The Court held thus:
‘’It
is observed that this court in Sonnar (Nig) Limited Vs. Nordwind case, while
applying the Brandon
‘’In
the present case, however, where the respondent brought its action at the trial
court in clear breach of the agreement to refer any breach to a foreign court
in Argentina
As
can be seen, the Appellant counsel in the Nika Fishing case, holding on
strongly to the Supreme Court case of Sonnar, felt strongly and rightly,
too, that the Court below erred and courageously moved on to the Supreme Court
. In doing so successfully, counsel, to use the words of Tennyson, ‘beat his
way to success and fame’. That would not have been so without adherence to
precedence.
ADEBANJO Vs. BROWN
The
other is the case of CHUKWUMA V IFELOYE reported in (2008) 18 NWLR Pt
1118 page 204. Before this case, there was the case of ADEBANJO
Vs. BROWN (1990) 3 NWLR pt. 141 661. The review of these cases throws
light not only on the danger associated with not following precedent as such,
but of not correctly identifying the ratio in a case as happened in the two maritime
cases of Sonna and Nika fishing. This is a species of adherence to the
principle of stare decisis in the administration of justice on the part of the
lawyer involved in litigation. The ratio of the case must be appropriately and
accurately discovered before successful reliance can be placed on it. As
Shakespeare, the immortal Bard puts it: ‘Do not trust a rotten plank’. We must also, in this respect, remember the
useful admonition of Oputa JSC in Okafor Vs. Felix Nnaife [1987] All NLR
(reprint edition) page 517 at 525 where the Law Lord stated that ‘justice
and fairness demand that the ratio of any case should not be pulled in by the
hair of the head and made to apply willy-nilly to cases where the surrounding
circumstances are different’’.
First,
the Adebanjo case which was earlier: In this case, the Plaintiff whose
land had been trespassed upon actually entered into negotiations with the
Defendant (who trespassed upon his land) and conveyed to the Defendant that he
would not enforce his rights as owner of the land against the Defendant. The
facts as outlined by the trial Judge and endorsed by the Supreme Court are that:
- Plaintiff,
having discovered that the Defendant encroached upon his land went into an
arrangement with the Defendant’s vendors to have a plot of land in
exchange for that encroached upon.
- When
it was discovered that the Plaintiff had built on part of plot 10, the
original arrangement was revised and Plaintiff agreed to take monetary
compensation in lieu of the land encroached upon.
- It
was in furtherance of this arrangement that the Plaintiff voluntarily
removed his shed from plot 10 and re-installed it on plot 9 at the
Defendant’s expense;
- In
furtherance of the arrangement, plaintiff and the Defendant went to
prepare a survey to enable the Defendant know how much to pay to the
Plaintiff for the area of land encroached upon and most importantly,
- The
Court also found as a fact that the whole of Plaintiff’s actions and
conduct were directed to convey to the Defendant that the Plaintiff would
not insist on his strict proprietary rights over the land and that such
actions and conduct did so convey such to the Defendant.
Based
on the totality of the above and other facts and circumstances of the case, the
learned trial Judge held that the Plaintiff’s case in trespass has not been
made out and he accordingly dismissed the same and refused to grant the
injunction sought.
An
appeal to the Court of Appeal was allowed and damages and Injunction granted
against the Defendant who, as Appellant, appealed to the Supreme Court.
In
allowing the Appeal, the Supreme Court held that:
‘’There
can only be trespass if the person in possession withholds his consent to the
entry into his land. If there is a mistaken entry and when the mistake is
discovered, approach is made to the person in possession and he consents, the
right to claim in trespass abates as his consent relates back to the initial
entry without permission.
‘’The
Court of Appeal seemed to have overlooked the very basis of the negotiation. If
the Plaintiff/Respondent had said, I do not want you on my land, there
would have been no basis for negotiation. But having said alright you can stay
on my land but get me another plot of land or money, the issue of trespass
becomes a dead issue and cannot be resurrected by failure to fulfill the terms
of the consent of the entry. This is more evident from the fact that the Plaintiff/Respondent
allowed the defendant/Appellant to proceed with his building to completion and
jointly with the defendant/Applicant approached and instructed PW1 to carry out
a survey of the land at the Defendant’s expense. That fact alone destroys all
the pretences of the Respondent to withdrawal or withholding of consent to the
entry on the land’’.
-Per
Obaseki JSC
“There
is no doubt that the Appellant in building his house encroached on the
respondent’s land. Initially, the encroachment was a trespass on the
Respondent’s land which was referred to as plot 10. However, the trespass was
condoned by the respondent who allowed the appellant to continue with the
construction of the house. In that respect, no finding of trespass can be made
on the claim by the Respondent for trespass and perpetual injunction
restraining the defendant, his servant… from further trespassing on the said
land since the construction of the appellant’s house. It is now too late in the
day to grant the claims. The respondent cannot go back on the licence given to
the appellant for he (the respondent) has waived to his detriment the right to
sue for trespass’’.
-per
Uwais JSC
These
are the facts and decision in the Adenbanjo case.
It
was this Adebanjo V Brown that counsel in Ifeloye heavily relied
on in arguing the Ifeloye case. As far as counsel was concerned, the Adebanjo
case is on all fours with the case he was called upon to present for
his client. It is evident that it was the basis on which even the negotiation
was conducted and perhaps, legal opinion given before litigation commenced.
CHUKWUMA V IFELOYE
In
the Ifeloye case, a seemingly similar set of facts presented itself and
these, briefly are: Appellant successfully applied to the Federal capital
development Authority for an allocation of land and was granted a certificate
of occupancy in respect of a piece of land known as plot 496 Area
A2, Wuse 1 District, Federal
Capital Territory
On the surface, this case closely resembles
that of Adebanjo Vs. Brown and the High court thought so for, at
the conclusion of trial, it applied the principle in the Adenbanjo Vs.
Brown and held that the Appellant had waived her right to sue the
respondent having condoned the trespass by the Respondent. Consequently, the
trial court dismissed the appellant’s claim.
The
Court of Appeal also thought so as it dismissed the appeal from the Judgment of
the Court below following which the parties appeared before the Supreme Court
as the Appellant appealed.
This
case clearly demonstrates, even dramatically, that when the ratio of a case is
not properly ascertained, litigation could be a gamble as shown in the Guardian
cartoon.
Early
in the proceedings before it, the Supreme Court detected what the real issue
was when it observed that “the issue was whether or not the fact and
circumstances in this case are the same as found by this court in Adebanjo V
Brown (1990) 3 NWLR pt 14, at 601”. See page 226 part of the report.
In
allowing the appeal, Justice Oguntade, who handed down the Leading Judgment
(incidentally his Lordship it was who decided Adebanjo Vs. Brown as a
High Court Judge) held that:
‘’ it is apparent that the two courts below
did not sufficiently give attention to the peculiar (that word again!) facts
in Adebanjo Vs. Brown upon which the decision in the case
hinged’’. (Italics not mine, but the Justice’s)
His
Lordship proceeded, and meticulously distinguished the peculiar fact which
clearly was that in Brown case, there was an agreement, a consensus from
which the aggrieved Plaintiff landowner had already started reaping as the
Defendant expended money and resources to meet the challenges of the agreed
negotiation whereas in the Ifeloye case on hand, this was not so for, as
soon as the Plaintiff-appellant land owner knew of the trespass she caused a
stop work notice to be issued and thereafter, the parties could not agree on
any settlement and immediately, she sued. The Supreme Court held that:’’ If
the reasoning of the two courts below be right, it would in my view, create a
very anomalous situation in the law governing trespass to land as it would lead
to a position where the owner of land on which another has committed trespass
would not be free to talk to the trespasser at all, lest he be taken to have
compromised the trespass even when there has been no agreement reached with the
trespasser.’’
The
Court, as we said, allowed the appeal and granted the injunctive reliefs
sought.
The
Supreme Court here clearly declined to follow its previous decision in Adebanjo
case because the court found that the facts and circumstances were not the
same. Sadly, the counsel built his case around the distinguished case. In a
way, he trusted a rotten plank. He pulled the ratio in Brown and sought to
make it apply willy-nilly to his case!
This
is instructive for court lawyers especially when it is remembered that,
according to Professor Glanville Willaims quoted earlier, ‘finding the ratio
decidendi of a case is an important part of the training of a lawyer. It is not
a mechanical process, but is gradually acquired through practice and study’’.
THE WAY FORWARD
The
problems associated with conflicting and contradictory Judgments of the
Appellate courts, especially the Supreme Court, are real and could pose
debilitating situations with respect to the law- and -order- question. Certainty
of the legal regime- the issue as to what the law is at any given time on a
specific issue be it in civil or criminal- should not be so much a matter of
guess work and blind chance as the flux and fluidity in our case laws which the
non-observation of the doctrine of stare
decisis seem to be making it to be.
Even
a judicial remedy that a court below is free to decide which of the conflicting
decisions to follow as enunciated in the Judgment of Justice Idigbe in CHIME
Vs. ELIKWU 1965 All NLR reprint edition page 451 ratio 6 is mired in
the same problems we have been discussing as another decision FBN PLC VS.
LAD GROUP LTD 2004 (14) NWLR PART 893 at 443 at 463 para D-F
contradicts that by holding that what is preferred is the later of the two
conflicting decisions!
What then, is the way forward?
The
Hon Justice Niki Tobi of the Supreme Court suggested that Judgments of the
court of Appeal be transmitted to all the Divisions of that court within days
of their delivery to avoid the now almost never-ending situation where that
court keeps entering contradictory and conflicting Judgments and Rulings on the
same issue. This suggestion is contained in His Lordship’s Judgment in the Odedo
Vs. INEC case.
Emeka
Ngige, a Senior Advocate in the interview granted the Guardian also made the
same suggestion, amongst others.
This
suggestion seems to suggest that the reason for the existence of
the judicial non-stare decisis, (the NBA NEC called it ‘Judicial rascality, see
NEC communiqué referred to earlier) is the absence of knowledge of the
pre-existing, prior Judgment now contradicted in the subsequent Judgment.
In
other words, that the subsequent Judgments were delivered per incuriam
of the earlier Judgment.
With
due respect to my Lord and to the Senior Advocate, this presumption does not
seem to be borne out of the Records and cannot also be said to be the root
cause even though it is so in a few cases.
Let
us take the ODEDO V INEC case in which Justice Denton-West parted ways
with her learned brothers and entered the dissenting Judgment which was upheld
on appeal to the Supreme Court.
The
Supreme Court case of AMAECHI V INEC which followed Ararume’ case
was already in existence and was dutifully brought to the attention of that
Division of the Court of Appeal. Infact, it was that judgment, which contains
the same principles of law as those agitated in the Odedo case, that
emboldened the Hon. Justice Denton-West to disagree proactively and
productively with her learned brothers.
The
problem, therefore, may not entirely be that of absence of knowledge of the
existence of the previous judgment.
What
is lacking, it seems to me, is a resolve, whether on the Bench or at the Bar,
to (continue) to prize intellect over instinct and intuition. This should be so
at the Bar where we practice; in the process of selection of judicial officers
and in the performance of judicial duties: the intellect should be preferred to
instincts and intuition. Even though these words Intellect, Instinct
and Intuition, sound alike and even share several of their make up
letters especially the initial letters, all of us know that although they
influence our decisions, the outcome of the decisions they respectively
influence is not the same in quality. It is my opinion that, if we prize
intellect over the other two, the incidence of conflicting and contradictory
decisions, which leads to what Hon Justice Chike Idigbe in Chime Vs.
Elikwu called the schizophrenic court, will be reduced. With the
intellect, we search for the data and the data drives the decision. That way,
errors are minimally made. This approach holds true for both the Judex and the
Advocate.
As
a support, the NBA Section on Legal practice and especially the Committee on
Litigation, should create and establish a site on the web to which any
contradictory decision can be reported for the guidance and the attention of
the courts. This will create the needed sense of circumspection in handling
authorities to which one is referred in course of performance of judicial
duties. When it is said that the prize of liberty is eternal vigilance, its
meaning should not be restricted to only political liberty but also liberty in the
certainty of use of sacred Court Judgments.
Thank
you for your audience and patience.
LIST OF AUTHORITIES RELIED ON WITH
BRIEF ANNOTATIONS
1. Rivers State Recovery of Premises cap 109, Laws of Rivers State
2. African Petroleum Limited Vs. J. K. Owodunni and
reported in [1991] 8 NWLR Part 210 Page 391 where the Supreme Court held that
whether a yearly tenant is in arrears of rents or not, only a valid 6 months
Notice can validly terminate the tenancy.
3. Oduye Vs. Nigeria Airways, 1987 2 NWLR (pt 55) 12 at
141 where
the Supreme Court restated that the only requirement for a valid tenancy is
lawful occupation.
4. Odutola Vs.
Papersack (Nig) Ltd [2006]
18 N.W.L.R 470 is contradiction to N02 abve to the
extent that it held that a yearly tenant in arrears can be ejected as a tenant
at will without the requirement of a 6 months’ Notice.
5. Learning The Law by Glanville Williams in which the Learned author posits
that finding the ratio decidendi of a case is part of the training of a
lawyer and which should be improved by practice and study.
6. A. L. Goodhart “Determining the
Ratio Decidendi of a case” in Essays in Jurisprudence and the common
Law (1931) p 1 in which the learned author defines ration decidendi
as the material facts of the case plus the decision thereon.
7. See section 287 of the Constitution makes the doctrine of stare
decisis part of the Constitution.
8. NWAKIRE Vs. COP (1992) 5 NWLR (PT 241) demonstrates the beauty of the
doctrine as it encourages the appeal of matters to the final court in the land
whenever it is perceived that precedents are misunderstood or misapplied.
9. CHIME Vs. ELIKWU 1965 ALL NLR page 459 where Justice Idigbe as a High Court
Judge, cited with approval, the ridicule of Salmon on Jurisprudence, of
referring to a court as schizophrenic when such courts can no longer link their
decisions to the real life of their past decisions.
10.The communiqué ( page 4 thereof) of the Nigerian Bar
Association National Executive Committee (NEC) issued at the end of its meeting held on Thursday
19th and Friday 20th February, 2009 at Wocdif Center,
West Bye-pass, Oshogbo, Osun State in which the Bar lamented the failure of the
doctrine of stare decisis and referred to it as judicial rascality.
11. The Guardian Newspaper of Thursday, June 18, 2009 in which a senior Advocate, Emeka
Ngige, also lamented the situation and proferred solution.
12. Adigun V Att. Gen. of Oyo State No. 2 (1987) 2 NWLR
pt 56 1997 at 214-215
Where
the Supreme Court acknowledged it is a Super Court of Supermen and invited
pungent criticisms of its Judgment for the public good.
13. ADEOGUN & Anor Vs. FASHOGBON and Ors 2008 (17
NWLR) Pt 1115 at 149 in
which the Court of Appeal held that an appeal against unfair exclusion from
election has not become academic merely because the election had been concluded,
14.ODEDO V. INEC (2008) 17 NWLR Pt 1117 at P. 554 where the same court, within a
twinkling of an eye, held the opposite to the above with Denton-West JCA correctly
disagreeing.
15. Abacha V. The State [2002] 11 NWLR Part 779 at page
437 where the
Supreme Court contradicted itself on the principle of quashing an Information.
This is with respect to N0 16 infra.
16. Ikomi Vs. The State: (1986) 3 NWLR (PT 28) 340 the above N0 15 was decided contrary
to the principle here.
17. O.O.M.F Ltd Vs NACB Ltd Pt. 1098 at pages 412-438, held that a court does not have
jurisdiction to entertain a matter where appropriate filling fees were not paid
18. AKPAJI Vs. UDEMBA pt. 1138 at pages 545-576 held that non-payment of filling
fees was merely an irregularity and does not affect jurisdiction.
19. OLUWO Vs. ADEBOWALE (1959)4 FSC at page 142, the Supreme Court held that where
the issue of bona fide is raised on title concerning land in a tenancy matter,
the magistrate has a discretion to either strike out or adjourn the case sine
die.
20. Bisiriyi Vs. H.A. Agusto & Anor, 1968, All NLR
reprint edition page 9, ratio 2,
the same court held: ’as soon as a Magistrate is satisfied that the question
of title is bonafide raised , he should stop the cause and go no further’’.
21. JOHNSON vs. LAWANSON (1971) 1 All NLR 56 in which the Supreme Court clearly,
unequivocally ‘repealed’ the following:Maurice Goualin Ltd Vs. Aminu; ODENEYE
V SAVAGE 1964 NMLR 115; WILLIAMS V. AKINWUMI
(1966) 1 ANLR 115 and JOHNSON vs. ADEBAYO.
22. IYALABANI Vs. BANK OF BARODA [1995] 4 SCNJ 1 at page 45 and AQUA LTD Vs. ONDO STATE SPORTS
COUNCIL [1988] 4 NWLR Pt. 91 at page 622 at page 643 in which the
Supreme Court declared that :’’ under Section 220 (1) (a) [now section 241], a
general right of appeal to the Court of Appeal as of right from the
final decision of the High Court exercising original jurisdiction enures to a
litigant in both civil and criminal proceedings irrespective of the nature
of the grounds of Appeal’’.
23. COOPERATIVE & COMMERCE
BANK NIGERIA LIMITED Vs. OGWURU (1993) 3 NWLR Part 284, at page 630, at
633, where the Supreme Court now held that the Trinity reliefs are needed in a
final appeal to the Court of Appeal when appellant is out of time.
24. UDE UBAKA & SONS LTD Vs. C.C EZEKWEM & CO
(2000) FWLR PART 1 page 77 at page 78,where the Court of Appeal perpetrated the error of the
Supreme Court in stating that Trinity Prayers are needed in a final appeal from
the High Court when out of time.
25. ETHIOPIAN AIRLINES Vs. ONU (2005) 11 NWLR PT 936 at
page 214 particularly at page 216, where the Court of Appeal declined to perpetuate the conflict and contradiction and correctly
restated the position of the Law more correctly.
25. UBA Plc Vs. SAMBA PETROLEUM 10 [2002] 16 NWLR PT
793, 361;
IDAKULA Vs. ADAMU 2001 1 NWLR (PT 94) AT 322;
KANO TEXTILE PLC
Vs. G & H NIG LIMITED [2002] 2 NWLR PT 751; and
UZO & AGAKA Vs. OLADEJI [2000] NWLR PT 683, all of which stated the Law correctly
that an appellant out of time in a final appeal from the High Court to the
Court of Appeal needs no Trinity Prayers which correct position was confused
with the Judgment in UBAKA Vs. EZEKWEM case N0 24 supra.
26. Awolowo Vs. Shagari in which the Supreme Court declared
that it should not be quoted.
27. ONUOHA Vs. OKAFOR [1983] 2 SCNLR 244 in which the Supreme Court stated it
would not interfere in the internal affairs of voluntary associations including
political parties.
28. Amaechi Vs. Omehia & INEC [2008] 5 NWLR Part
1080 page 227 in
which the Supreme Court, based on section 34 of the Electoral Act, impliedly
repealed ONUOHA Vs. OKAFOR, N0 27 supra without expressly saying so as it did
in N0 21 supra.
29. Sonnar Ltd Vs. Nordwind [1987] 3 NWLR page 520 at
page 536 paragraph C.
where the Supreme Court held that:’’even then, it is against public
policy to produce uncertainty in the Law.’’
30. NIKA FISHING CO. LTD V LAVINA CORPORATION (2008) 16
NWLR pt. 1114 at page 509, where
the Supreme Court stood tenaciously to its principle of Law in the Sonnar Case
which Counsel and the courts below misunderstood.
31. ADEBANJO Vs. BROWN (1990) 3 NWLR pt. 141 661 in which the supreme Court held that
a person would be estopped from claiming for trespass to which he consented.
32. CHUKWUMA V IFELOYE (2008) 18 NWLR Pt 1118 page 204 in which
the Supreme Court distinguished the ratio in the Brown case above ( N0 31)
because the trespass here was not consented to but the courts below
misunderstood the ratio.
33. Okafor Vs. Felix Nnaife [1987]
All NLR (reprint edition) page 517 at 525 where the Law Lord stated
that ‘justice and fairness demand that the ratio of any case should not be
pulled in by the hair of the head and made to apply willy-nilly to cases where
the surrounding circumstances are different’’.
34.CHIME Vs. ELIKWU 1965 All NLR reprint edition page 451 ratio 6
held that a court below is entitled to pick and choose which of conflicting
decisions of a higher court to follow.
35. FBN PLC VS. LAD GROUP LTD 2004 (14) NWLR PART 893 at
443 at 463 para D-F
contradicts that by holding that what is preferred is the later of the two
conflicting decisions!
This
paper is for service on all the participants at the Conference.
Address
for service:
C/o
The
Committee of Civil Litigation,
Section
on Legal Practice,
Nigerian
Bar association.
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