NOTABLE

CASES 2020
MARCH 2021
INTRODUCTION

The year 2020 was eventful for the

legal industry and saw noteworthy
decisions from the Supreme Court,
the Court of Appeal, and the Federal
High Court that have significantly
impacted procedural and substantive
law on various legal issues.
Generally, what we saw in the year
under review from our Courts is a
trend towards a literalist approach to
applying legal rules to facts and
issues before them. In this review,
we identify some of the notable
decisions of our Courts in the year
2020 and discuss the ways in which
these decisions have changed the
law as well as their broader
implications for the Nigerian legal
jurisprudence and society.

1
SUPREME
COURT
AG of Lagos State v. AG of the
Federation & National Assembly
of the Federal Republic of Nigeria
SC/CV/260/2020

PRINCIPLE: VIRTUAL HEARINGS HAVE NOT

YET BEEN DECLARED UNCONSTITUTIONAL

BACKGROUND

“Whenever any person is charged with a

criminal offence, he shall, unless the charge is
withdrawn, be entitled to a fair hearing in public
within a reasonable time by a court or tribunal”

Upon the outbreak of the COVID-19 pandemic in Nigeria, the Federal Government of Nigeria and
some State Governments (including Lagos, Osun, Ogun, and Ekiti States) issued directives restricting
movements, limiting social gatherings to a certain number of people, and directing that only urgent
and time-bound matters should be entertained by the Courts.

This triggered calls for a renewed approach in the conduct of proceedings virtually and for the
deployment of technologies to ensure that the constitutional right of access to Courts of litigants is
not impeded. In this respect, it is pertinent to mention that the Guidelines of the National Judicial
Council on virtual hearings (the NJC Guidelines; issued on 7 May 2020 by the Chief Justice of
Nigeria) and the Lagos State Judiciary Remote Hearing of Cases (COVID-19 Pandemic Period) Practice
Direction (the Lagos Practice Directions; issued in May 2020 by the Chief Judge of Lagos State) are
some of the efforts made by heads of Courts in Nigeria for the purpose of ensuring that judicial
proceedings are not affected by the COVID-19 pandemic. The issue of the constitutionality of virtual
hearings vis-à-vis the provision of sections 36(3) and (4) of the Constitution of the Federal Republic
of Nigeria, 1999, as amended (the Constitution) gravely agitated legal minds. Section 36(3) of the
Constitution provides that “the proceedings of a court or the proceedings of any tribunal relating to
the matters mentioned in subsection (1) of this section (including the announcement of the decisions
of the court or tribunal) shall be held in public” (emphasis added). In addition, section 36(4) of the
Constitution states that “Whenever any person is charged with a criminal offence, he shall, unless the
charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or
tribunal” (emphasis added). The proponents of the stance against virtual hearings placed emphasis on
the emphasised portions of the relevant excerpts.

3
Three lines of argument were advanced to counter the argument that virtual hearings are
unconstitutional. First, is that section 36(3) and (4) of the Constitution do not expressly prohibit
virtual hearings, and it is trite law that what is not expressly prohibited is permitted. See Theophilus
v. Federal Republic of Nigeria [1996] 1 NWLR (Pt. 423) 139. Secondly, is that the judiciary has the
power to regulate the conduct of its own proceedings. This is buttressed by the provisions of sections
254, 254F, 259, and 274 of the Constitution which grant the Heads of Courts in Nigeria statutory
powers to regulate the practice and procedure of their respective courts. Thirdly, nowhere in the
Constitution is “public” defined as being open court.

ISSUE

The debate on the constitutionality of virtual hearings culminated in a suit by the Lagos State
Government and Ekiti State Government wherein the states, through their Attorney General, sought
clarification from the Supreme Court on the legality of virtual hearings. The issue for determination
before the apex Court was whether having regard to section 36 of the Constitution, remote hearings
enabled through technology platforms (such as Zoom, Microsoft Teams, and Skype) by various federal
and state courts were constitutional.

DECISION

Before delivering its decision on both matters, the Supreme Court, through a seven-member panel
led by Justice Rhodes-Vivour, hinted that the suits were speculative and failed to disclose how virtual
proceedings would injure the interest or right of any citizen; and as such, they enjoyed the
presumption of regularity. Based on the hint of the Court, both Attorneys-General proceeded to
withdraw their respective suits. In a unanimous decision read by his lordship Rhodes-Vivour JSC, the
apex Court held that “this suit is speculative and having been withdrawn, it is struck out.” His lordship
Rhodes-Vivour JSC further held that “…as of today, virtual sitting is not unconstitutional”. It is
important to note that this statement was an obiter dictum, meaning that it was merely made in
passing after the Court had struck out the case and does not constitute a binding precedent. See
Amobi v. Nzegwu & Ors [2013] LPELR-21863 (SC), 41, paras. C-D.

4
IMPLICATION

As pointed out above, the statement of his lordship Rhodes-Vivour JSC that “… as of today, virtual
sitting is not unconstitutional” was an obiter dictum, which is not strictu sensu binding on lower
Courts. However, it is critical to note that there are judicial authorities which stand for the proposition
that the obiter dictum of the Supreme Court cannot be ignored by lower Courts. In Ifediorah & Ors
v. Ume & Ors [1988] 2 NWLR (Pt. 74) p. 13, paras. D-F, the Supreme Court held as follows:

Although this opinion was given in a criminal appeal, it has been followed and applied
by the Court of Appeal in many civil appeals against interlocutory decisions. See for
example Akinsola Dawodu & Anor. v. F. O. Ologundundu & Ors. (1986) 4 NWLR 104, at
p.112. For, it has been held by the House of Lords in England that although what is
ordinarily binding in a case is the ratio decidendi and not the obiter dictum; yet an
obiter dictum by the ultimate court on an important point of law is one which is binding
on and followed by all the lower courts. See W.B. Anderson & Sons Ltd. & Ors. v.
Rhodes (Liverpool) Ltd. & Ors. (1967) 2 ALL E.R. 850. After all, a good deal of the
important pronouncements of the Supreme Court in the famous case of Bronik Motors
Ltd. & Anor. v. Wema Bank Ltd. (1983) 1 S.C. N.L.R. 296 was obiter. Yet it was binding
on the Court of Appeal and all other courts lower down in the judicial hierarchy until
the law was changed in Akinsanya v. U.B.A. Ltd (1986) 4 NWLR 273.

Similarly, in Buhari & Ors v. Obasanjo & Ors [2003] LPELR-813 (SC), 66, paras. B-C, the Supreme
Court admonished the lower Courts not to treat the obiter of the Supreme Court with impunity. In the
words of his lordship Edozie JSC (as he then was), “this does not mean that an obiter has no strength
or teeth, indeed no lower Court may treat an obiter of the Supreme Court with careless abandon or
disrespect, but the Supreme Court could ignore it if it does not firm up or strengthen the real issue in
controversy”.

Accordingly, we take the view that though the statement of his lordship Rhodes-Vivour, JSC in both
cases (A.G Lagos v. A.G Federation and A.G Ekiti v. A.G Federation) was obiter, it underscores the
point that virtual hearings have not yet been declared unconstitutional in Nigeria with the attendant
effect that our Courts can continue with virtual hearings.

5
UOO Nigeria Plc v. Mr.. Maribe
Okafor & Ors [2020] LPELR-49570
(SC)

PRINCIPLE: “LIFE CHAIRMAN” OR “MANAGING

DIRECTOR FOR LIFE” IS NOT A VALID JOB TITLE

FACTS

The case involved the Appellant company, UOO Nigeria (the Company) which was founded by the
late Nze Uche Okafor. Before his death, Mr.. Nze Uche Okafor resigned as the Chairman/Managing
Director/Chief Executive Officer of the Company by a letter dated 27.01.2004 (the Resignation
Letter). The Resignation Letter, which nominated one Edozie Uche Okafor for the aforesaid positions
for life, was subsequently sent to the board of directors and indicated, among other things, that
Edozie Uche Okafor be made Director, Chairman, Managing Director, and Chief Executive of the
Company for life. The content of the Resignation Letter also attempted to overrule any contrary
provisions in the Company’s Articles of Association – mandating that the provisions of the Articles of
Association be interpreted in accordance with the dictates of the Resignation Letter. In this regard,
paragraph 80(d) was inserted into the Articles of Association, and it read as follows:

“Mr.. Edozie Uche Okafor, having been nominated by Chief Uche Okafor to succeed him as Chairman,
Managing Director/Chief Executive (MD/CEO) of the company is hereby made a Life Director of the
company and the Chairman, Managing Director and Chief Executive of the company for life. The said
Edozie Uche Okafor is hereby made the Chairman of the Board of Directors for life. Any contrary
provisions to this effect in the Articles of Association is to be interpreted subject to the provision of
this Clause.”

However, at the subsequent Annual General Meeting (AGM), a motion was moved by the 1st
Respondent to remove Edozie Uche Okafor as Director, Chairman, Managing Director, and Chief
Executive of the Company for life, and appoint the 1st Respondent as the Chairman of the Company.

6
The motion was accepted by the shareholders; however, Edozie Uche Okafor proceeded to institute
an action at the Federal High Court, Lagos to prevent his removal. The trial Court in its judgment
emphasised that the role of “Life Chairman” or “Managing Director for life” could not be held in
Nigeria. While the law recognises that a person may be a “Director for Life”, such a person can be
removed or rejected by the members of the company at an AGM. The trial court further held that it is
inconsistent with the provisions of the Companies and Allied Matters Act (CAMA) for a person to be
appointed as Managing Director/Chief Executive of the board of directors for life, as Edozie Uche
Okafor was. Such positions are not recognised under the CAMA and so are therefore void, ineffective,
and unlawful.

Dissatisfied with the decision of the trial Court, the Appellant appealed to the Court of Appeal, which
affirmed the decision of the trial Court. The Appellant subsequently appealed to the Supreme Court.

ISSUE

The pertinent issue before the Supreme Court, however, was whether a person can be appointed “Life
Chairman” or “Managing Director for Life” under Nigerian law.

DECISION

The Supreme Court held that the positions of “Life Chairman” and “Managing Director for Life” are not
recognisable in Nigerian law as the power to elect a Chairman or Managing Director (and to determine
his tenure) is statutorily conferred on the directors or the members of a company at an AGM. The
apex Court further held that any clause in the Memorandum and Articles of Association of a company
which purports to make a person a Life Chairman or Life Managing Director, contrary to the express
provisions of the law, is an illegal clause and is therefore unenforceable.

IMPLICATION

The Supreme Court, by its decision, upheld a long-standing principle of law that the court will not
enforce an illegal contract (See Onyiuke III v. Okeke [1976] LPELR-8039 (SC) Per Alexander, CJN.
(p. 9, paras. B-D)), and that one cannot place something upon nothing and expect it to stand. See
UAC v. MacFoy [1962] AC 152. The relevant provisions of the Articles of Association which permitted
Edozie Uche Okafor to be “Chairman, Managing Director and Chief Executive of the company for life,”
were not recognised by the Companies and Allied Matters Act and were therefore unknown to
Nigerian law. Prior to this case, there had been no decision of Nigerian courts on whether a person
could be appointed as a Life Chairman or a Managing Director for Life. As such, this is the first case,
and it appears to settle the issue. Companies are to take cognisance of the provisions of CAMA in
making appointments, particularly in relation to the designation of an appointee, to ensure that such
appointments will not be held to be illegal by the courts.

7
Pius Umeadi v. Victor Chibunze
[2020] 10 NWLR (Part 1733) 405

PRINCIPLE: INDIGENOUS OATH-TAKING IS

A LEGALLY VALID FORM OF OATH-TAKING

FACTS

The case concerned a land dispute over the family land of the Umuofuonye family when in c.1940,
Emmanuel Uba, a member of the Umuogbocha family trespassed into the land of the Umuofuonye
family. Mr.. Chibunze (of the Umuofuonye family) challenged these acts of trespass, and the Egbeagu
village, in which the land was situated, intervened and invited both families to settle their dispute. In
settling the dispute, the village decided that the Umuogbocha family should place juju on the land and
for the Umuofuonye family to remove same by taking an oath that Emmanuel Uba did indeed trespass
on the land. Mr.. Chibunze rose to the occasion and took the oath; thereby becoming the exclusive
owner of the land – and proceeding to exercise diverse acts of possession on the land (such as
farming and planting agricultural palms) and allotting portions of the land to his male children. After
the death of Mr.. Chibunze, a dispute arose as to who the rightful owner of the land was, and the
validity or otherwise of the indigenous oath taken by Mr. Chibunze was called into question.

ISSUE

The central issue for determination before the Supreme Court was whether the previously taken
indigenous oath is recognisable in law.

DECISION

In its decision, the Supreme Court held that indigenous oaths are a valid form of oath-taking. His
lordship Peter-Odili, JSC held that “where parties who believe in the efficacy of a juju resort to oath-
taking to settle a dispute they are bound by the result and so the common law principles in respect of
proof of title to land no longer applies since the proof of ownership of title to land will be based on the
rules set out by the traditional arbitration resulting to oath-taking.” Therefore, where parties resort to
indigenous oath-taking, provided that the parties in question believe in the veracity and authenticity
of the indigenous oath, such an oath can be used to settle a dispute and the parties in question will
be bound by the result.

8
IMPLICATION

Where there are two

conflicting judgments
of the Supreme Court,
the lower court is
bound by the latter
decision and must
follow and apply it.

The decision of the apex Court is a departure from its previous decisions on the customary resolution
of disputes through oracles or juju, such as its decision in Cypiacus Nnadozie v. Nze Ogbunelu
Mbagwu [2008] LPELR-2055 (SC). In the Cypiacus Nnadozie case, there was a dispute as to the
rightful owner of a piece of land in Eastern Nigeria and the parties agreed, under the supervision of
the customary court, to resolve the dispute by reference to the Chukwu oracle. The Supreme Court,
however, held that the Customary Court had erred in this regard. The apex Court further held that
the contemporary practice is that disputes should be resolved with reference to the evidence brought
by the relevant parties before a court and not merely by reliance on, or to, the dictates of
unfalsifiable oracles.

Notably, the Supreme Court did not distinguish or overrule its decision in the Cypiacus Nnadozie case
in the present case. As such, by holding that parties may resort to indigenous oath-taking (without an
express overruling of the Cypiacus Nnadozie case), the Supreme Court has created two conflicting
decisions. However, it is settled that where there are two conflicting decisions of the apex Court, that
which is later in time will prevail. In Osakue v. Federal College of Education (Technical) Asaba
[2010] 10 NWLR (Pt. 1201) p. 34, paras B-C), Ogbuagu, JSC. stated as follows: “where there are two
conflicting judgments of the Supreme Court, the lower court is bound by the latter decision and must
follow and apply it.” See Okpozo v. Bendel Newspaper Corp. [1990] 5 NWLR (Pt. 153) 652. From
this, we take the view that the present case is a more accurate representation of our jurisprudence
than the Cypiacus Nnadozie case.

The implication of the apex Court’s decision is that customary oath-taking before shrines, oracles, and
juju is a valid form of oath-taking in Nigerian jurisprudence and would be accepted in evidence in
Court and relied upon by the Court in the determination of a case before it.

9
CIL Risk & Asset Management
Limited v. Ekiti State Government
& Ors [2020] LPELR-49565 (SC)

PRINCIPLE: PUBLI C OFFI CERS OF STATES CANNOT

TAKE BENEFI T OF THE LI MITATI ON PERI OD I N THE
PUBLI C OFFI CERS PROTECTI ON ACT, 2004

FACTS

The Appellant in this case challenged the revocation of his right of occupancy by the Ekiti State
government on the ground that the revocation was illegal, null, and unconstitutional. The Appellant
further sought a declaration that the reallocation of the disputed land to the 4th Respondent was
illegal and void. The 1st – 3rd Respondents, on the other hand, filed a Notice of Preliminary Objection
contending that the Appellant’s claim for recovery of land was statute-barred having been instituted
outside the three (3) months statutory period stipulated by section 2 of the Public Officers Protection
Act, 2004 (POPA) for bringing an action against a public officer.

ISSUE

The issue for determination was, inter alia, whether the Appellant’s suit was statute barred by virtue
of section 2(a) of POPA.

DECISION

The apex Court held that POPA, having been enacted pursuant to Item 53 of the Exclusive Legislative
List and sections 4(2) and (3) of the Constitution, is only for the protection of public officers in the
public service of the Federation. The apex Court noted that the public service of a State falls within
the residual matters and consequently, the legislative competence over matters concerning the public
service of a State resides with the House of Assembly of each State. The apex Court further held that
POPA does not have general application such as to apply to public officers in the service of the State
government. To this end, the Supreme Court held that the 1st - 3rd Respondents, being public
servants of Ekiti State were not entitled to protection under the POPA.

10
IMPLICATION

For a long time, public officers have wielded the provision of Section 2(a) of POPA as a shield to
protect them from actions commenced outside the three (3) months limitation period provided by
POPA. In order to understand the implications of the apex Court’s decision, it is pertinent to state the
provisions of section 2(a) of POPA. Section 2(a) of POPA provides:

Where any action, prosecution, or other proceedings is commenced against any person
for any act done in pursuance or execution of any Act or Law or any public duty or
authority, or in respect of any alleged neglect or default in the execution of any such
Act, Law, duty or authority, the following provisions shall have effect –
the action, prosecution, or proceeding shall not be instituted unless it is commenced
within three months after the act, neglect or default complained of or in case of a
continuance of damage or injury, within three months next after the ceasing thereof.

The position of the law is settled beyond cavil that actions against a public officer outside the three
(3) month period (the Statutory Period) specified in section 2(a) of POPA leaves the claimant with a
bare and empty cause of action as the right of action becomes abated uno flatu by virtue of it being
totally barred, and such right of action is perpetually extinguished after the Statutory Period. (See
Ibrahim v. Judicial Service Committee [1998] LPELR-15408 (SC), (19, paras. C-F). However, it is
pertinent to state that the provision of section 2(a) of POPA has never been one that provided public
officers with an airtight refuge against claims outside the statutory period. Much like most principles
of law, this protection has certain exceptions. As is clear to see from the letters of the law, to be
entitled to the protection of the POPA, the public officer must not have acted outside the colour of his
office, statutory or constitutional duty and without legal justification (See Nwankwere v.
Adewunmi [1966] LPELR-25299 (SC)).

Other recognised exceptions which may rob a public officer of protection under POPA includes where:
(x) the cause of action is for breach of contract or recovery of debt (See FGN v. Zebra Energy Ltd
[2002] 18 NWLR (Pt.798) 162); (y) the claim is for recovery of land (See Mulima v. Usman [2014]
16 NWLR (Pt.1432) 160); and (z) if the injury, and not the effect of the said injury, the claimant
makes the basis of his suit, persists (See Obiefuna v. Okoye (1961) 1 All NLR 357 at 360). A
question that may ring heavy on one’s mind upon reading the apex Court’s decision is whether a new
exception has been created. To answer this, a proper analysis of the judgement of the Court becomes
pertinent.

11
Remarkably, POPA does not define “public officers” or “any person” used in the section title and body
of section 2(a). Prior to the decision of the Supreme Court in the CIL case, public officers in the
employ of the Federation and States alike have sought and in fact benefited from the provisions of
POPA (See Nwaka v Head of Service, Ebonyi State [2007] LPELR-8126 (CA)).

His lordship Eko JSC in CIL case stated that POPA was enacted pursuant to item 53 of the Exclusive
Legislative List. The said item 53 donates the National Assembly alone with the legislative
competence to make laws for “public service of the Federation including the settlement of disputes
between the Federation and officers of such service”. According to his lordship, Eko JSC:

This Act enacted pursuant to Item 53 of the Exclusive Legislative List and Section
4(2) & (3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended,
applies only to protect public officers in the "public service of the Federation". It has no
general application such as to apply or offer protection to public officers in the service
of Ekiti State or any other State in the Federal Republic of Nigeria. The public Service of
Ekiti State is a matter within the residual list, that is matter neither in the Exclusive
Legislative List set out in Part l of the Second Schedule to the Constitution nor in the
Concurrent Legislative List set out in the First Column of the Second Schedule to the
Constitution.

The Supreme Court reasoned that the 1st and 2nd Respondents not being public officers in the
employ of the Federation to whom the Act solely relates cannot take benefit of the protection
provided by the POPA. The Court took the view that the public service of Ekiti State, being a residual
matter, can only be constitutionally legislated upon by the Ekiti State House of Assembly, by virtue
of Section 4(6) & (7) of the Constitution, to the exclusion of the National Assembly or any other State
House of Assembly.

An examination of the Apex Court’s decision vis-à-vis the provisions of the Constitution may cast
doubt as to its correctness, particularly in light of the provisions of the Constitution. It is instructive to
note that the Constitution does not define the “public service of the Federation”. Section 318(1) of the
Constitution defines “Civil Service of the Federation" to mean “service of the Federation in a civil
capacity as staff of the office of the President, the Vice President, a ministry or department of the
government of the Federation assigned with the responsibility for any business of the government
of the Federation”.

12
The said Section 318 of the Constitution further defines “Federation” as the “Federal Republic of
Nigeria”. In defining “Federation”, the Supreme Court in AG Kano v AG Federation [2007] LPELR-
618(SC), 15-16, paras E-E, held that “the meaning of the word 'Federation' presents no difficulty. It is
clear from the provisions of section 2 of the Constitution that the words 'Nigeria', 'Sovereign State',
'Federal Republic of Nigeria' and 'Federation' are synonymous”. Applying the definition as provided by
the Constitution and case law it becomes clear that a literal interpretation of the “public service of the
Federation” encompasses the civil service of the Federal and State governments. To this extent, the
decision of the Supreme Court in the instant case that POPA only applies to “public officers in the
service of the Federation” which the Court interpreted to mean just public officers in the employ of
Federal Government could be faulted.

However, being the decision of the Supreme Court, it is binding on all Courts until it is overruled by
the Supreme Court. Public Officers in the employ of States in the Federation would do well to rely on
the public officers protection laws of the various States in canvassing arguments on statute-bar of
actions filed against them.

13
Ude Jones Udeogu v. Federal
Republic of Nigeria (Unreported)
SC/662C/2019
PRINCIPLE: AN ELEVATED JUDGE LACKS THE
JURISDICTION POST-ELEVATION TO HEAR AND
CONCLUDE CRIMINAL MATTERS BEING HANDLED
PRIOR TO ELEVATION

FACTS

The case was premised on the criminal prosecution of the Appellant, one Orji Uzor Kalu (2nd
Respondent) and Slok Nigeria which commenced in 2016 before the learned trial Judge, Hon. Justice
M.B. Idris. In 2018, the Appellant entered a no case submission after the close of the Prosecution’s
case and in response, the 1st Respondent filed a Written Address opposing the Appellant’s no case
submission. However, before the trial Judge could deliver his ruling on the no case submission, the
learned Justice was elevated to the Court of Appeal. Pursuant to section 396(7) of the Administration
of Criminal Justice Act, 2015 (ACJA), the 2nd Respondent applied to the President of the Court of
Appeal (the PCA) for a fiat permitting Hon. Justice M.B. Idris to conclude the partly heard matter
despite his elevation to the Court of Appeal and the fiat was granted by the PCA . Upon delivery of the
ruling on the no case submission in favour of the 1st Respondent, the Appellant challenged, on appeal
to the Court of Appeal, the competence of Hon. Justice M. B. Idris to deliver the ruling on the no case
submission.

The Court of Appeal dismissed the appeal and upheld the provisions of section 396(7) of the ACJA in
that it empowers a justice of the Court of Appeal to sit at the Federal High Court for the conclusion of
the judge’s criminal matters that were partly heard prior to his elevation. The Appellant subsequently
appealed to the Supreme Court.

ISSUE

The issue before the Supreme Court was whether the Court of Appeal was right when it held that
section 396(7) of ACJA vests a justice of the Court of Appeal with the requisite power to sit at the
Federal High Court and conclude a matter that was partly heard by him before his elevation and
whether section 396(7) of the ACJA is not contrary to Sections 250(2) and 253 of the Constitution.

14
 DECISION

The Supreme Court, agreeing with the contentions of the Appellant, allowed the appeal, set aside the
decision of the trial Court and ordered a retrial on the basis that the trial Judge had been elevated to
the Court of Appeal and thus lacked the competence to sit as a judge of the Federal High Court at the
material time. The apex Court held that section 396(7) of the ACJA was void and inconsistent with
sections 250, 253 and 290 of the Constitution. The Supreme Court, relying on the decisions in
Ogbunyinya & Ors v. Okudo & Ors [1979] NSCC 77 and Our Line Ltd v S.C.C. Nigeria Ltd & Ors
[2009] 17 NWLR (Pt. 1179) 383, held that section 396 (7) of the ACJA is an attempt by the
legislature to usurp the powers of the executive and whittle down the operation of the provisions of
the Constitution. The apex Court further held that the fiat of the PCA was ultra vires and offends the
provisions of the Federal High Court Act which empowers only the Chief Judge of the Federal High
Court to assign judicial tasks in the Federal High Court.

IMPLICATION

The enactment of the ACJA heralded a new beginning in the criminal justice process in Nigeria.
Section 1 of the ACJA provides that the purpose of the ACJA is to “ensure that the system of
administration of criminal justice in Nigeria promotes efficient management of criminal justice, speedy
dispensation of justice, protection of the society from crime and protection of the rights and interests
of the suspect, the defendant and the victim.”

In line with the objective of the ACJA to ensure speedy dispensation of justice in criminal matters,
section 396(7) of the ACJA provides that “notwithstanding the provision of any other law to the
contrary, a judge of the High Court who has been elevated to the Court of Appeal shall have
dispensation to continue as a High Court Judge only for the purpose of concluding any part-heard
criminal matter pending before him at the time of his elevation and shall conclude the same within a
reasonable time.”

Section 396 (7) of the ACJA was introduced to put an end to the settled practice of commencing
partly heard criminal cases de novo once the trial judge is elevated to the Court of Appeal. This often
acted as an obstacle in the fight against corruption.

It is noteworthy that the decision of the Supreme Court does not only apply to criminal matters but
also applies to civil matters as the decision was based on the apex Court’s interpretation of the
Constitution. The implication therefore is that until the Constitution is amended to provide that a
Judge who is elevated to the Court of appeal can sit at the lower Court to finish matters that were
part-heard before his elevation, no Judge can validly do so.

15
Maina v. Economic and Financial
Crimes Commission [2020] 2 NWLR
(Pt. 1708) 230

PRINCIPLE: WHERE THERE IS A SEAL ON A DOCUMENT

OR PROCESS, IT IS OTIOSE TO TICK THE NAME OF
COUNSEL WHOSE NAME I S ON THE SEAL AS THE
SI GNATORY ON THE DOCUMEN T OR PRO CESS

FACTS

In this case, the Appellants had filed a Notice of Appeal (NOA), and in compliance with Rule 10(1) of
the Rules of Professional Conduct for Legal Practitioners, 2007 (RPC), the seal of the counsel who
filed the Notice of Appeal was affixed beside the names of several counsel in the law firm
representing the Appellant. The 1st Respondent challenged the validity of the NOA on the basis that
the signature on the NOA was not traceable to any of the persons whose names appeared as counsel
to the Appellant.

…where there is a seal on

a court process, it is otiose
to tick the name of
counsel whose name is in
the seal as the signatory
on the document or
process

ISSUE

The issue for determination before the Supreme Court was, inter alia, whether a signature on a court
process that is not traceable to any of the persons whose names appear as counsel on the court
process, should be discountenanced by the Court.

DECISION

The apex Court held that “…where there is a seal on a court process, it is otiose to tick the name of
counsel whose name is in the seal as the signatory on the document or process”.

16
IMPLICATION

The Legal Practitioners Act, 2004 (the LPA), with particular reference to sections 2(1) and 24, sets
out steps taken by the legislature to avoid identity theft, ward off quacks and ensure that the legal
profession is not hijacked by “fake” lawyers. The Supreme Court has emphasised in many decisions
that the provisions of sections 2(1) and (24) of the LPA are meant to: (i) protect the legal profession;
(ii) ensure that no person other than a person whose name is on the roll of legal practitioners at the
Supreme Court signs legal documents; and (iii) eliminate impersonators and fake lawyers from legal
practice. See Okafor v. Nweke [2007] 10 NWLR (Pt. 1043) 521; Dankwambo v. Abubakar & Ors
(2015) LPELR-25716 (SC); Tanimu & Anor v. Rabiu & Ors. (2017) LPELR-47998 (SC); Ministry of
Works & Transport (2013); All FWLR (Pt. 694) 23; First Bank (Nig.) Plc v. Maiwada (2012) 5
SCNJ 1; and SLB Consortium Ltd v. N.N.P.C. (2011) All FWLR (Pt. 583) 1902.

In addition to affixing the legal practitioner’s stamp and seal to the relevant legal document, it was
the position of the law that where the name of more than one legal practitioner appears on a legal
document, the legal practitioner who signs the document and affixes his stamp and seal must also
tick his name on the legal document. The Supreme Court held in Tanimu & Anor v. Rabiu & Ors.
[supra] that the mere presence of the stamp and seal of the Nigerian Bar Association on a document
without linking it to the signature endorsed thereon, is not sufficient proof that the stamp and seal
belongs to the person who signed the document, or conversely that the signature that appears on the
document belongs to the person whose stamp and seal is affixed thereto. The Supreme Court
departed from the decision of Tanimu & Anor v. Rabiu & Ors [supra] in the case under review
where it held:

The first name in the list of counsel is the name of Mohammed Katu, Esq, above which
is a signature. The name on the seal is Mohammad K. Ndanusa. Even without any name
being ticked, is not obvious that the notice of appeal was signed by Mohammed Katu? I
want to state without equivocation that where there is a seal on a court process, it is
otiose to tick the name of counsel whose name is in the seal as the signatory on the
document or process. Therefore, the contention of the 1st Respondent’s counsel that
the signature on the notice of appeal is not traceable to any of the persons whose
names appeared as counsel to the appellant lacks substance” (emphasis added).

Thus, by this case, the current position of the law is that where the name of more than one legal
practitioner appears on a legal document, and the seal of one of such legal practitioners is affixed on
same, it would no longer be pertinent to tick the name of the legal practitioner whose name is on the
seal as the signatory of the legal document.

17
PDP & 2 Ors v. Biobarakuma Degi-
Eremienyo & 3 Ors SC.1/2020

P R I N C I P L E : WHERE A CANDIDATE ON A JOINT TICKET IS DISQUALIFIED FROM

CONTESTING, IT WOULD INFECT THE JOINT TICKET WITH WHICH THE PARTIES HAD
CONTESTED AND VITIATE THE TICKET IN ITS ENTIRETY.

FACTS

The 2nd Respondent, David Lyon, won the nomination to contest the Gubernatorial election in
Bayelsa State on the platform of the All Progressives’ Congress (APC). He in turn nominated the 1st
Respondent, Biobarakuma Degi-Eremienyo, as his running mate. Both the 1st and 2nd Respondents
were APC candidates for the offices of Governor and Deputy-Governor, respectively, in Bayelsa State
on a joint ticket. In compliance with section 31(1) of the Electoral Act 2010 (as amended) (the
Electoral Act), the APC submitted the names, personal information and particulars of the 1st and
2nd respondents to the Independent National Electoral Commission (INEC), and the names were
contained in INEC Form CF001 for the 1st and 2nd Respondents.

Pursuant to section 31(5) of the Electoral Act, the Appellants approached the Federal High Court
claiming that the names, personal information and particulars of the 1st and 2nd Respondents which
were also contained in the INEC Form CF001 provided by the 1st and 2nd Respondents were false.
This contention was predicated on the fact that the 1st Respondent presented false information in his
Form CF001 to INEC to support his nomination. They alleged, inter alia, that whilst the 1st
Respondent in his sworn Form CF001 stated his name as Biobarakuma Degi-Eremienyo, documentary
evidence and sworn affidavits show the fact that the 1st Respondent has a multiplicity of names,
which are different from the name he presented to INEC. The Appellants therefore prayed the Federal
High Court to invoke section 31(6) of the Electoral Act to disqualify the 1st and 2nd Respondents from
contesting the election.

The trial Court agreed with the Appellants that the information on names, information and particulars
provided by the 1st Respondent to INEC in Form CF001 were false information, and thereby invoked
the provision of section 31(6) of the Electoral Act to disqualify the 1st Respondent. The joint ticket of
the 1st and 2nd Respondents was thereby vitiated by the disqualification of the 1st Respondent.
Therefore, the effect of the disqualification of the 1st Respondent is the disqualification of the 2nd
Respondent too, because of the joint ticket held by them. The candidates were thereafter disqualified
by the court from contesting the Gubernatorial election in Bayelsa State.

The Court of Appeal however overturned the judgement of the trial court and held that the Appellants
did not establish that the 1st Respondent’s form presented to INEC contained materially false facts
and/or information on the 1st Respondent. The Court of Appeal held that in the circumstance, the 1st
and 2nd Respondents ought not to be disqualified. Dissatisfied with the decision of the Court of
Appeal, the Appellants appealed to the Supreme Court.

18
ISSUE

The primary issue before the Supreme Court was whether a joint ticket could be vitiated where one of
the holders of the joint ticket is disqualified from contesting in an election.

DECISION

The Supreme Court, in its decision, reinstated the decision of the trial court and overturned the
decision of the Court of Appeal. The Supreme Court held that the sanction for presenting to INEC
false facts about the personal particulars or information of a candidate by virtue of section 31(6) of
the Electoral Act is an order, issued by the High Court, disqualifying such candidate from contesting
the election. The Court held that since the ticket was a joint ticket, the disqualification of the 1st
Respondent vitiated the joint ticket resulting in the disqualification of the 2nd Respondent.

The Supreme Court thereafter made a consequential order directing INEC to withdraw the Certificates
of Return earlier issued by INEC to the 1st and 2nd Respondents and to issue a fresh Certificate of
Return to the candidate who had the highest number of lawful votes cast in the Gubernatorial Election
and who also had the requisite constitutional (or geographical) spread.

IMPLICATION

The effect of this decision is that political parties’ nominations for the governorship and deputy
governorship positions in a State hold a joint ticket and where any holder of the joint ticket is
disqualified for any reason under the law, the disqualification will vitiate the joint ticket. Thus, a
governorship candidate and his deputy will swim or sink together. Political parties are to carry out
proper due diligence on their nominated candidates and ensure that information and documents given
to the INEC by candidates are true and correct. Failure to do so may lead to a political party losing a
public office it won in an election.

19
Uzodinma v. Ihedioha [2020] 5
NWLR (Pt. 1718) 529

P R I N C I P L E : IN AN ELECTION PETITION, THE MAKER OF A DOCUMENT

DOES NOT HAVE TO BE CALLED TO TESTIFY AND TENDER THE DOCUMENT IN
EVIDENCE

FACTS

The 1st Appellant, the 1st Respondent and 68 other candidates contested the Gubernatorial election
conducted in Imo State by the 3rd Respondent in March 2019. The 1st Appellant was the candidate of
the 2nd Appellant (APC), whilst the 1st Respondent was the candidate of the 2nd Respondent (PDP).
The 3rd Respondent, the INEC, returned the 1st Respondent as the winner of the election. The
Appellants were dissatisfied with the return of the 1st Respondent as the winner of the election, and
filed an Election Petition challenging the return of the 1st Respondent on the grounds that (i) the 1st
Respondent was not validly elected by a majority of the lawful votes cast in the election; and (ii) that
the declaration and return of the 1st Respondent was invalid by reason of non-compliance with the
Electoral Act.

The Appellants sought several reliefs including the nullification of the 1st Respondent’s return as the
winner of the election and the declaration of the 1st Appellant as the winner of the election. The
Appellant’s case was that the election was held in 27 local government areas, 305 electoral wards,
and 3,525 polling units, however, the collated results were from only 2,883 polling units and the
results from 388 polling units were excluded. The Appellants thus contended that if the votes
excluded from the 388 polling units were added to the votes counted in favour of the 1st Appellant
and the 1st Respondent respectively, the 1st Appellant would have the majority votes.

At the hearing, the Appellants called fifty-four (54) witnesses. PW54, a Deputy Commissioner of
Police, tendered copies of the election results (PPP1 – PPPP3666) and testified that the copies of the
election results were given to the Police, as election observers, at the elections by the INEC polling
unit agents in the units in question. The Election Tribunal held that in proof of the unlawful exclusion
of results in the 388 polling units, the Appellants ought to have called the polling unit agents to testify
to the fact that elections took place in their respective units. Therefore, exhibits PP1-PPP366 were
expunged on the grounds that PW54 lacked the competence and authority to testify and tender the
documents.

The Appellants appealed to the Court of Appeal. The court upheld the Appellants’ appeal against the
rejection of exhibits PPP1- PPP366 and held that PW54 was properly before the tribunal as a
subpoenaed witness, but refused to accord the exhibits any probative value on several grounds, two
of which were that the documents were not certified and that they were directly in the custody of
PW54. Therefore, the Court of Appeal dismissed the appeal. The Appellants subsequently appealed to
the Supreme Court.

20
ISSUE

The issue for determination was, inter alia, whether the Deputy Commissioner of Police could tender
election results which were given to the Police as observers at polling units and not as the makers of
the document.

DECISION

The Supreme Court restated the validity of the general principle of the law of evidence which provides
that a document tendered in evidence through a witness who is not the maker will not be accorded
evidential value, the maker of the document must be called to testify. However, the Supreme Court
held that the principle of law does not apply in election petition cases because they are sui generis
and regulated by the Electoral Act. The apex Court therefore held that by section 63(3) of the
Electoral Act, a Police Officer is statutorily entitled to tender in evidence, election results given to the
Police during an election, even though he was not the maker of the document.

The copies of the election results in the 388 units (PPP1 – PPPP3666), tendered through PW54
therefore showed that the scores recorded therein were excluded from the ward collection results,
and therefore they added veracity to the Appellants contention on the issue that the results were
unlawfully excluded. Further, the Respondents failed to prove the documents were fake or forged as
alleged. Thus, the Supreme Court held that on a preponderance of evidence, the Appellants
discharged the burden on them of proving that the results from 388 polling units, which were in their
favour, were unlawfully excluded from the collation of results and that if the excluded votes are added
to the results declared in their favour, they would have emerged as the winners of the election. The
Supreme Court thereby declared that the 1st Respondent, Rt. Hon. Emeka Ihedioha was not duly
elected by a majority of lawful votes cast at the said election and his return as the elected Governor
of Imo State was declared null and void and accordingly set aside. Consequently, the Supreme Court
declared that the 1st appellant, Sen. Hope Uzodinma polled a majority of lawful votes cast at the
Gubernatorial Election held in Imo State and he was declared the winner of the Gubernatorial Election
of Imo State held on 9th March.

21
IMPLICATION

The decision of the

SC is a departure
from the previous
decisions of the
Court on the
proper parties to
tender election
results in evidence
in an election
petition

The decision of the Supreme Court is a departure from the previous decisions of the Court on the
proper parties to tender election results in evidence in an election petition. In its previous decisions,
the apex Court had held the proper persons to tender in evidence the result sheets of an election is
the INEC presiding officer at a polling unit or the polling agents of the political parties that
participated in the election at that unit level. See Buhari v Obasanjo (2005) 13 NWLR (Pt. 941) 1
(Pp. 315, paras B-C; 316, paras B-D).

This burden has usually been a heavy one, particularly in the Gubernatorial election tribunal, with the
need to call on either all the presiding officers or polling unit agents of the units in contention within a
limited time allowed by the Electoral Act and this has made virtually most petitioners perennial losers
in all election petition cases.

This decision of the Supreme Court obviates the need to call only polling unit presiding officers or the
polling agents of the political parties that participated in the election at the polling unit level as
parties can now subpoena the Police to tender in evidence, result sheets given to the Police as
observers during an election.

22
Akinlade & 1 Or v. INEC & 2 Ors
[2020] 17 NWLR 439 at 537

P R I N C I P L E : AFFIDAVITS SIGNED BY COUNSEL CAN NOW

BE DISCOUNTENANCED BY THE COURT

FACTS

The 1st Respondent, the INEC, conducted a governorship election in Ogun State on 9 March 2019.
The 1st Appellant, Adekunle Akinlade, was the nominated candidate of the 2nd Appellant, Allied
Peoples Movement (APM); while the 2nd Respondent, Dapo Abiodun, was the nominated candidate of
the 3rd Respondent, All Progressives Congress (APC). After the election, the 1st Respondent
announced that the 2nd Respondent was duly elected as the Governor of Ogun State. The Appellants
proceeded to challenge the victory of the 2nd Respondent at the Ogun State Governorship Election
Petition Tribunal. However, the petition was dismissed. Dissatisfied with the decision of the Tribunal,
the Appellants appealed to the Court of Appeal, which found no merit in the appeal and consequently
dismissed it. Still aggrieved, the Appellants further appealed to the Supreme Court.

ISSUE

Amongst several legal issues raised by this case, the most pertinent for our discussion was that raised
in relation to the Appellants’ Counter Affidavit to the Motion on Notice filed by the 2nd Respondent
which challenged some of the grounds in the Appellants’ appeal. The Counter Affidavit was deposed to
by one Mubaral Imam, who was described as “a legal practitioner in the law firm of Ahmed Raji & Co;
Counsel to the appellants” (MI Affidavit). The issue in relation to the MI Affidavit was whether a
lawyer, by deposing to an affidavit on behalf of his client, can act as a witness for his client in a
contentious matter.

23
 DECISION

The Supreme Court, in its decision, discountenanced the MI Affidavit on the ground that it offended
Rule 20(4) of the RPC which forbids a lawyer from being a witness for his client in a contentious
matter. In particular, his lordship Eko JSC disapproved of, and deprecated, the conduct of the counsel
in deposing the MI Affidavit. According to his lordship: “The point is so basic and fundamental that the
total disregard or lack of it by a lawyer cannot be condoned. Any conduct that is a direct affront or
infringement of the express Rules of Professional Conduct can only be regarded as a conduct
unbecoming…The appellants’ counter-affidavit being so brazenly offensive was accordingly
discountenanced”.

IMPLICATION

The decision of the Supreme Court is a departure from its previous decisions on the subject. Prior to
this decision of the Supreme Court, the judicial treatment of affidavits deposed to by Counsel was to
deprecate the practice of counsel deposing to affidavits on behalf of their clients, but the Courts did
not go as far as to entirely discountenance an affidavit for that very reason. For instance, in Bala v.
Dikko [2013] 4 NWLR (Pt. 1343) 52 at 60 para G-H, per Mohammed, JSC: “…It [is] unethical and
quite contrary to the Rules of Professional Conduct in the Legal Profession for…counsel to have filed
the motion and also at the same time pose as a vital witness in the affidavit in support of the case of
his client…”. While this was an obiter dictum, it is worth noting that Mohammed, JSC. did not deem it
fit that such an affidavit should be discountenanced, instead he deprecated the practice by labelling it
as unethical. Similarly, in Ekpeto v. Wanogho [2004] 18 NWLR (Pt. 905) 394, p. 413, paras. B-D,
the Supreme Court, per Kalgo, JSC., stated that: “It is an undesirable practice for Counsel to swear to
an affidavit in support of motion filed on behalf of his client. Where a Counsel does so, it means the
Counsel is giving evidence in a case in which he is appearing. Also, if there is any conflict in the
affidavits and evidence is called to clarify or resolve such conflict, the Counsel who swore the affidavit
must give evidence. This is undesirable and should be avoided.

Thus, the judicial treatment of the practice of counsel deposing to an affidavit in a matter was to
admonish counsel against deposing to affidavits on behalf of their clients, especially in contentious
matters – without explicitly discountenancing an affidavit on that basis. Therefore, going forward,
counsel should refrain from deposing to affidavits on behalf of their clients, save for non-contentious
applications.

24
Shell Petroleum Development
Company & 2 Ors v. Agbara & 9
Ors [2020] SC.731/2017

PRINCIPLE: THE SUPREME COURT CANNOT

REOPEN ITS PREVIOUS JUDGMENTS

FACTS

On 11 January 2019, the Supreme Court in its Ruling struck out the Appellants’ (SPDC, Shell
International Petroleum Company Limited, and Shell International Exploration and Production BV)
NOA against the decision of the Court of Appeal which ordered N17 billion damages against Shell
Petroleum Development Company (SPDC) for an oil spillage in Ejama-Ebubu in Eleme Council of
Rivers State, on the ground that the Appellants had not first sought and obtained the leave of Court
before filing the NOA (as in the view of the apex Court, all the grounds in the NOA were all grounds of
mixed law and fact). The apex Court held that “the Notice of Appeal … is incompetent and is hereby
struck out by virtue of Order 8 Rule 7 of the Supreme Court Rules. Appeal No. SC 731/2017 is
accordingly dismissed”. Subsequently, the Appellants filed an application praying the Supreme Court
to set aside its Ruling delivered on 11 January 2019 and to grant them Trinity prayers in order for the
Supreme Court to hear the Appellant’s appeal on the merit. The Respondent filed a preliminary
objection to the hearing of the Appellant’s application on the ground that the application “constituted
a scandalous, deliberate abuse and ridicule of the integrity, majesty and finality of the Supreme
Court”.

ISSUE

The pertinent issue in this suit was whether the Supreme Court could set aside its previous Ruling of
11 January 2019.

DECISION

The Supreme Court, in a unanimous decision, upheld the preliminary objection and held that it
cannot revisit its earlier decision on the matter. According to his lordship, Nweze JSC (who read the
lead Ruling) the Appellant’s application was "a futile attempt to exhume the bones of the appeal
which 'underwent ceremonial interment at the lower court on June 5, 2017 and confirmed by this
Court on January 11, 2019…”.

The Notice of Appeal … is incompetent and is hereby struck out by

virtue of Order 8 Rule 7 of the Supreme Court Rules. Appeal No. SC
731/2017 is accordingly dismissed.

25
IMPLICATION

This decision appears to be a departure from the previous decisions of the Supreme Court in relation
to the effect of an order terminating a matter on technical grounds without going into the merits of
the matter. There are a long line of cases to the effect that an order of dismissal entails the
conclusive determination of the parties’ rights, while a striking out order leaves the Appellant in
question with the option of re-submitting the appeal. In PDP v. Asadu [2016] 17 NWLR (Pt. 1541)
215, the Supreme Court, per Rhodes-Vivour, JSC, held that an appeal struck out for failure to obtain
leave and such other technical reasons can be relisted and heard on the merits by the apex Court. In
PDP v Asadu (supra) his lordship, Rhodes-Vivour JSC (who delivered the lead Ruling) held that the
apex Court has inherent powers to consider applications that are dismissed only if the applicant can
satisfy the Court to exercise its discretion in his favour and set aside its order of dismissal. It is
noteworthy however that the Court did not state the requirements or the conditions that will guide
the Court in the exercise of its discretion in setting aside its previous decision. However, in a
subsequent decision of the Supreme Court in the Edilcon (Nig) Ltd v UBA [2017] 18 NWLR (Pt
1596) 74 at 92, paras A-C, wherein his lordship Rhodes-Vivour JSC presided, the Court reiterated that
an order dismissing an application not heard on the merit will not constitute a bar to the presentation
of a similar application. The apex Court in the case under reference identified certain conditions that
will guide the Court in the exercise of its discretion to set aside its order of dismissal, viz; where (i)
the judgment or decision sought to be set aside is null and void ab initio; or (ii) where there was a
fundamental defect in the proceedings which vitiates and renders same invalid. It is instructive that
the decision of the apex Court in Edilcon (Nig) Ltd v UBA (supra) is consistent with other decisions
of the Court (such as Alao v ACB Limited [2000] LPELR-408 (SC), 41, paras B-C; Skenconsult
(Nig) Ltd v Ukey [1981] 1 SC 6) where the Court identified similar conditions as applicable to guide
the exercise of its discretion in setting aside its judgment, decisions, or orders.

It is instructive to note that a striking out means disposing of an action or matter without determining
the merits of the matter. An order of dismissal on the other hand, means disposing of a matter or
case on the merit by a Court. Such an order of dismissal is final and subject only to an appeal and
cannot, in the absence of statutorily permissible instances, be re-opened or reviewed by the court
that made it. Therefore, when an appeal to the Supreme Court is dismissed, there are no further
remedies; but when an appeal is struck out, there is a further remedy in the form of a renewed
appeal. See Okeke v. Modu [1969] (121 at 127; and Ede v. Chita [2016] LPELR-41031 (CA) 77-8,
paras. F-B.

26
It is noteworthy that the Supreme Court, in the Ruling of 11 January 2019, did not go into the merits
of the appeal in striking out the Applicant’s NOA. Though the Supreme Court in the Ruling of 11
January 2019 had stated that the appeal was “dismissed” after striking out of the NOA, the
“dismissal” was tantamount to a striking out as the appeal was not heard on the merits. There is
ample authority to support this stance, not least the notable case of Panalpina World Transport
Limited v. J.B. Olandeen International & Ors [2010] LPELR-2902 (SC) 22. In casu, the apex
Court held as follows: “...when an order of Court is made in respect of an application not heard on the
merits, it amounts to striking out simpliciter. Even when an order of dismissal is made following a
hearing which is not based on the merits, such order is still considered in law a mere striking out.
When a matter is struck out in such circumstances, there is liberty to relist. The simple explanation is
that while the matter is discontinued from the date, it is still alive and kept in the Court’s general
cause list and can be brought back to hearing cause list when an application to relist has been
granted.”

Therefore, since the Ruling of 11 January 2019 did not hear the Appellants’ appeal on the merits, the
apex Court had the judicial powers to hear the Appellants’ application and determine whether to grant
it or not based on the principles enunciated by it in its previous cases on the point. Thus, it is
incorrect, as argued by the Respondents in their preliminary objection, that the hearing of the
Appellants’ application by the apex Court would constitute a ”scandalous, deliberate abuse and
ridicule of the integrity, majesty and finality of the Supreme Court”.

The fact that the Supreme Court declined to hear the Appellants’ application marked a clear departure
from its earlier decision in the PDP v Asadu case and seems to suggest that the apex Court will no
longer be inclined to set aside its decisions that are not on the merit even where an Appellant in
seeking to set aside such a decision satisfies the elements for the grant of such an application as
stated in previous decisions of the apex Court.

27
 COURT
OF APPEAL
 Sahara Energy Resources Limited
v. Mrs. Olawunmi Oyebola [2020]
LPELR-51806 (CA)

PRINCIPLE: THE PRINCIPLES ESTABLISHED IN THE CASES PRIOR TO THE THIRD

ALTERATION OF THE CONSTITUTION ON THE MEASURE OR QUANTUM OF
DAMAGES TO BE AWARDED IN LABOUR MATTERS SHOULD BE APPLIED WITH
CIRCUMSPECTION

FACTS

The Respondent commenced this action at the National Industrial Court of Nigeria (NICN) claiming
general damages for unlawful dismissal and breach of contract of employment. The NICN, whilst
declining to grant the relief for a declaration that the summary dismissal of the Respondent from the
employ of the Appellant as being null and void, had, on a finding of fact, held that the dismissal was
nevertheless in contravention of the conditions of service and Code of Conduct of the Appellant.
Consequently, the NICN granted the relief for general damages for unlawful dismissal and breach of
contract of employment and awarded the Respondent the sum of N1,700,000.00 (One Million and
Seven Hundred Thousand Naira) being the equivalent of two (2) years’ salary of the Respondent.
Dissatisfied with the decision of the NICN, the Appellant appealed the decision to the Court of Appeal.

ISSUE

The main issue which arose concerned the propriety of the award of the sum of N1,700,000.00 (One
Million and Seven Hundred Thousand Naira) as general damages to the Respondent for unlawful
dismissal.

29
DECISION

The Court of Appeal found no merit in the appeal and accordingly dismissed it. In dismissing the
appeal, the Court of Appeal held that the NICN in exercise of its jurisdiction and in considering the
measure or quantum of damages, is required to do so in accordance with good or international best
practices in labour or industrial relations. In reaching its decision, the Court of Appeal considered the
wording of section 254C of the Constitution and section 7(6) of the NICN Act and held:

The above provisions enjoin the National Industrial Court in the exercise of its
jurisdiction, to “have due regard to good or international best practices in labour or
industrial relations”. The importance of this novel provision, in my deferential view, is
that the National Industrial Court, in considering the measure or quantum of damages
is to do so in accordance with “good or international best practices in labour or
industrial relations”, which shall be a question of fact. It will be stating the obvious to
say that prior to the Third Alteration, when employment and labour matters were
handled by the High Courts, there was no obligation to apply and follow good or
international best practices. It is an innovative provision which seems to be directed at
enthroning an entirely new employment and labour jurisprudence. It will be
disregarding this innovation if we continue to deal with the measure of damages in
total disregard of the changes wrought to the law by legislation.

The Court of Appeal also “deferred” to the expertise of the specialist judges of the NICN on labour and
employment matters and held that “employment judges have a good knowledge of the world of work
and a sense, derived from experience, of what is real there and what is window-dressing”.

IMPLICATION

It was the position of the law that a claimant will not be awarded compensatory damages for unlawful
termination of a contract of employment or unlawful dismissal from employment. The “damages”
that would be awarded to a claimant for unlawful dismissal or termination of the contract of
employment is the amount the employee would have earned under the contract of employment had
the employment been properly determined. See Osisanya v. Afribank Nigeria Plc [2007] LPELR-
2809 (SC).

30
However, it seems that a community reading of section 254C (1) (f) of the 2011 Third Alteration to
the Constitution which provides:

Notwithstanding the provisions of Sections 251, 257, 272 and anything contained in
this Constitution and in addition to such other jurisdiction as may be conferred upon it
by an Act of the National Assembly, the National Industrial Court shall have and
exercise jurisdiction to the exclusion of any other court in civil causes and matters-
(f) relating to or connected with unfair labour practice or international best practices in
labour employment and industrial relation matters”

and section 7 (6) of the National Industrial Court Act (NICA) which states: “The Court shall, in
exercising its jurisdiction or any of the powers conferred upon it by this Act or any other enactment or
law, have due regard to good or international best practice in labour or industrial relations and what
amounts to good or international best practice in labour or industrial relations shall be a question of
fact”, justifies the decision of the Court of Appeal in departing from the former position of the law on
the “damages” to be awarded in a wrongful dismissal suit by applying international best practices.

Though the purists of the “domestication theory” may argue that a Court in Nigeria cannot rely on
international best practices as enshrined in international treaties/conventions when such international
treaties/conventions have not been domesticated in Nigeria through an Act of the National Assembly,
it seems that by the wording “Notwithstanding the provisions of sections 251, 257, 272 and anything
contained in this Constitution” in section 254C(1) of the Constitution, the legislature clearly intended
the NICN to apply such international treaties/conventions without them being first domesticated in
Nigeria pursuant to the provision of section 12 of the Constitution (since the provision of section 12
falls under the wording “anything contained in the Constitution”). This is because it is trite the
legislature does not use words in vain nor does he indulge in tautology or in surplusage in the use of
words. See Tukur v Government of Gongola State [1998] 4 NWLR (Pt 117) 517 at 579.

This decision therefore has the effect of enthroning an entirely new employment and labour
jurisprudence on the quantum of damages to be awarded in employment disputes bordering on
wrongful dismissal or unlawful termination of contract by empowering the NICN to have recourse to
international treaties/conventions in awarding compensatory damages.

31
 FEDERAL
HIGH COURT
Megawatts Nigeria Ltd v.
Registered Trustees of Gbagada
Phase II Residents’ Association &
Ors FHC/L/CS/982/2020
P R I N C I P L E : PERSONS WHO LIVE IN A RESIDENTIAL ESTATE CANNOT BE
COMPELLED TO JOIN THE MEMBERSHIP OF THE COMMUNITY DEVELOPMENT
ASSOCIATION (CDA)

FACTS

This suit was filed by Megawatts Nigeria Limited (Megawatts or the Company) against the
Registered Trustees of Gbagada Phase II Residents’ Association (the Residents’ Association) over
payment of estate dues from 2017 to 2020. Megawatts prayed the Court to determine if it is bound
by law to pay dues and levies to the Residents’ Association as well as membership of the CDA,
especially considering that the Company provided its own security, waste management system and
other services allegedly provided by the Residents’ Association. Megawatts further claimed that the
estate security prevented its trucks from accessing the estate in order to compel and coerce the
Company to pay the requested fees. The Residents’ Association argued that since Megawatts is a
company resident within the estate, it is bound to pay demanded dues and levies.

ISSUE

The primary issue before the Federal High Court (FHC) was whether a person, resident in an estate,
can be compelled and coerced into the membership of a resident association.

33
DECISION

The FHC, in delivering its judgement, considered the provisions of sections 40 and 41 of the
Constitution and the Supreme Court judgment in Agbai & Ors v. Okogbue [1991] LPELR-225 (SC)
64 and held that where a person voluntarily becomes a member of an association, the member
cannot complain against the custom of the association. However, where the person is presumably a
member of an association by operation of an alleged custom, he cannot be compelled to abide by the
customs of the association against his will, as that would be unconstitutional. Thus, the FHC declared
that the act of the Residents’ Association coercing the Company into becoming its member as illegal
and unconstitutional. The Court added that membership, payment of dues and levies to such
associations are voluntary and further declared any action of force on a resident’s membership or
financial contribution unconstitutional.

IMPLICATION

By this case, it is clear that compelling residents to be members of an estate association is illegal and
unconstitutional. In the absence of membership of an estate association by a resident, an estate
association cannot seek to collect dues/levies from the resident or compel/coerce the resident to pay
estate dues/levies. In essence, membership of estate associations and payment of dues/levies by
residents of an estate is voluntary.

34
Mr.. Rupert Irikefe (trading as
Abimbola Energy Ventures) v.
Central Bank of Nigeria, Zenith
Bank and the Attorney General of
the Federation -
FHC/ASB/CS/139/2019

P R I N C I P L E : IT IS UNLAWFUL, ILLEGAL, AND VOID TO DEDUCT N50 AS

STAMP DUTY CHARGES FROM CUSTOMERS’ BANK ACCOUNTS ON TELLER
DEPOSITS OR ELECTRONIC TRANSFERS OF MONIES FROM N1000 AND ABOVE.

FACTS

In this suit, the Plaintiff urged the FHC to declare that the conduct of the 1st Defendant (CBN) in
continuing to impose, direct the imposition, deduction or remittance to it by the 2nd Defendant,
and/or receiving the sum of N50.00 (Fifty Naira) as stamp duty on electronic transactions or transfer
of monies from N1,000.00 (One Thousand Naira) upwards from the Plaintiff’s current account despite
the subsistence and awareness of the judgments in Appeal No. CA/L/437A/2014 and Suit No.
FHC/L/CS/126/ 2016 (in which the courts had held that the provisions of the schedule of the Stamp
Duties Act indicate that documents evidencing receipt of deposits are exempted from payment of
Stamp Duties and consequently held that the banks in the suits were under no obligation to deduct or
remit same to the CBN) is arbitrary, unlawful, illegal, dismissive and contemptuous of the lawful
orders of superior courts of competent jurisdiction, condemnable, null and void and of no effect.

The Plaintiff contended that it was unlawful for the Defendants to continue to impose and collect
stamp duties on sums transferred despite the existence of binding and subsisting judgments of the
court. The Plaintiff further contended that that the regulatory body that has the statutory duty to
collect taxes under Stamp Duties Act and the Federal Inland Revenue Services Act 2007, is the
Federal Inland Revenue Service. CBN, on the other hand, claimed immunity under sections 52 and 53
of the Banks and Other Financial Institutions Act (BOFIA), on the grounds that it acted on good faith.

35
ISSUE

The issue for determination before the FHC was whether the Defendants is empowered to deduct,
impose or direct the imposition of stamp duty on electronic transactions or transfer of monies above
N1,000.00 (One Thousand Naira) under the Stamp Duties Act.

DECISION

The FHC held that CBN, having been a party to both suits FHC/L/CS/126/2016 and CA/L/437/2014,
cannot then feign ignorance or claim immunity under sections 52 and 53 of the BOFIA in the face of
the blatant disrespect for the decisions of the court. The court adjudged the Plaintiff’s suit to be
meritorious and awarded the sum of N2,000,000.00 (Two Million Naira) damages adding that
damages were awarded to set an example that it is reprehensible conduct for agencies of government
to wilfully disobey decisions of competent courts of law.

IMPLICATION

This decision reemphasises that it is unlawful, illegal, null and void for banks in Nigeria to deduct
N50.00 (Fifty Naira) as stamp duty charges from customers’ bank accounts. The decision also
emphasises that the CBN will be unable to rely on the provisions of sections 52 and 53 of BOFIA when
its actions are unlawful or reprehensible.

36
37

EDITORIAL TEAM

Oluseye Opasanya, SAN

Partner

Dr. K.U.K Ekwueme

Partner

Olabisi Makanjuola
Managing Associate

Dr. Echefu Ukattah

Senior Associate

Adeniyi Aderogba
Associate

Ojuolape Adebayo-Razak
Associate

Hopewell Nwachukwu
Associate

Ganiyat Seriki
Associate

For further information, please contact: [email protected].

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