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A Simple Guide to Personal Income Tax in Nigeria

fredericknkobowo

August 9, 2023

What Law Guides Personal Income Tax (PIT) in Nigeria

The Personal Income Tax is guided by the Personal Income Tax Act Cap P8 LFN 2004 (as amended)

What is your Personal Income?

Your personal income is total amount of money you make from any trade, business, profession or vocation and pension received from such.

Who is to Pay the Personal Income Tax and to Whom is it paid

The tax is imposed on income of all Individuals, Communities, Families and Trustees or Executors and is to be paid to the State of their residency for each year, i.e., the State’s Internal Revenue Service (IRS). Residents of FCT – Abuja, persons employed in the Nigerian Armed Forces (Army, Navy and Air Force), Police officers, officers of the Nigerian Foreign Service and a person resident outside Nigeria who derives income or profit from Nigeria, are all to pay to the Federal Inland Revenue Service (FIRS).

I don’t reside in Nigeria, do I need to pay my income tax to Nigeria?

Note that some nonresidents of Nigeria may still be taxed in Nigeria under certain conditions, such as where the business or trade producing the income for them is wholly or partially carried on or deemed to be carried on in Nigeria.

What is “gross income”?

“gross income” means income from all sources less all non-taxable income, income on which no further tax is payable, items exempted from tax and all allowable business expenses and capital allowance.

Will all my income be taxed?

No, not all of your income will be taxed. “Chargeable/taxable income” is the amount of the total income of an individual for a year, after any income exempted has been excluded and the deductions allowed by the Act have been made.

Income exempted from taxation are those as stated in the Third Schedule of the Personal Income Tax Act.

While the deductions to be made before arriving at your taxable income are all outgoing and expenses, or any part thereof, wholly, exclusively, necessarily and reasonably incurred during that period and ultimately borne by you in the production of the income. Such as:

  1. payable interest on money you borrowed as capital in acquiring the income;
  2. the rent and premiums on land or buildings occupied for your trade, business, profession or vocation for that period;
  3. any expense incurred for repair of premises, plant, machinery or fixtures employed in acquiring the income, or for the renewal, repair or alteration of any implement, utensil or article so employed;
  4. bad debts incurred in your trade, business, profession or vocation;
  5. a contribution or an abatement deducted from the salary or pension of a public officer under the Pensions Act or under any other approved scheme or the Nigeria Social Insurance Trust Fund or other retirement benefits scheme for employees throughout Nigeria; Etc.

Additionally, the government has granted a tax relief under the heading “Personal relief and relief for children, dependents”. The government is giving up taxing you a part of your annual income. They expect that you use this money to take care of yourself, children and dependents. It is called the “Consolidation Relief Allowance” and it is N200,000.00 or 1% of gross income whichever is higher, plus 20 % of the gross income.

The balance from all these deductions, exemptions and relief is what shall be taxable.

What deductions may be made?

There shall be allowed a deduction of the annual amount of any premium paid by the individual during the year preceding the year of assessment to an insurance company in respect of insurance on his life or the life of his spouse, or of a contract for deferred annuity on his own life or the life of his spouse

Are deductions made automatically?

No. No deduction shall be allowed to you unless you claim it in writing in such form as the relevant tax authority may prescribe.

How much is my Personal Income Tax?

The rate of the tax ranges from 7% to 24%, depending on the amount of chargeable income – Individuals are subject to minimum tax of 1% of gross income where the income is less than N300,000 per annum.

After the relief allowance, deductions and exemptions had been granted in accordance with the law, the balance of income shall be taxed as specified in the following tax table:

  1. First N300,000 @ 7 %
  2. Next N300,000 @ 11 %
  3. Next N500,000 @ 15 %
  4. Next N500,000 @ 19 %
  5. Next N1,600,000 @ 21 %
  6. Above N3,200,000 @ 24 %

Who calculates the tax I’m to pay?

You do. A taxable person (such as yourself) is required to file a return of income and in the return, calculate the amount of tax payable in the prescribed form.

How will Government verify my calculated tax?

Every taxable person (such as yourself) is required to keep Books of Accounts which will be used by the tax authority to verify your calculated tax. If you fail or refuse to keep books of accounts which, in the opinion of the relevant tax authority, are adequate for the purpose of the tax, you are be liable on conviction to a penalty of N50,000 for individuals and N500,000 for corporate entities.

Furthermore, for the purpose of obtaining full information in respect of your income or gain, the relevant tax authority may give you notice requiring you to complete and deliver any return to the tax authority, personally attend before an officer of the relevant tax authority for examination with respect to any matter relating to such income gains, produce for examination any book, document, account and return which the relevant tax authority may deem necessary or give orally or in writing any other information including a name and address specified in the notice.

If you are in salary employment as your only source of income, the above does not apply to you because your employer is responsible for your PAYE tax.

What duty do I owe the State aside from payment of my tax?

You are required by law to file a return of income every year, without notice or demand, with the tax authority of the State in which you are deemed to be a resident. The return of income is expected to state the amount of income and particulars to any such income, allowance, relief, deduction or otherwise as may be material for that purpose from every source of the preceding year. Notwithstanding that a tax authority requires you to file a return containing the amount of your income for each year, a person whose only source of income in any year of assessment is employment is such that he earns N30,000 or less from that source is not required to file return of income.

When should I file my returns of income?

The due date for filing returns of the tax is 31st March of every year (within ninety days from the commencement of every year of assessment). Note that a person who files his/her return within the time specified for filing of the return shall, if there is no default in the payment arrangement, be granted a bonus of 1% of the tax payable.

What if I fail to file my returns?

You shall be liable on conviction to a fine of N5,000 and a further sum of N100 for every day during which the failure continues or imprisonment of six (6) months or both. Also, the relevant tax authority may proceed to assess you as a taxable person chargeable with income tax after the expiration of the time allowed for the delivery of the return (after 31st March of every year).

When should I make payment after I have been assessed?

Income tax charged by an assessment which is not or has not been the subject of an objection or appeal, shall be payable within two months after the date of service of that notice.

If you do not pay within the period, a sum equal to ten % per annum of the tax shall be added, and the provisions of the Act relating to the recovery and collection of tax shall apply to the recovery and collection of that sum.

The relevant tax authority shall serve a demand note on you and, if payment is not made within one month from the date of the service of the demand note, the relevant tax authority may proceed to enforce the payment.

The penalty imposed is not be deemed to be part of the tax paid for the purpose of claiming relief.

If without lawful justification or excuse, of which burden of proving rests on you, you fail to pay the income tax within the period of one month, you are guilty of an offence.

Do I pay interest on late payment of tax?

Yes. The tax due from a taxable person shall carry interest on annual basis at bank base lending rate from the date when the tax becomes payable until it is paid.

How do I prove that I have cleared my tax?

By obtaining your tax clearance certificate. Whenever the relevant tax authority is of opinion that for the three years immediately preceding the current year of assessment, fully paid or that no tax is due on your income or that you are not liable to tax for any of those three years, it shall issue you with a tax clearance certificate within two weeks of your demand for the certificate. That the payment of current year tax shall not be made a condition for the issuance of the certificate unless you are leaving the country finally.

A tax clearance certificate contains the following in respect of the last three years of assessment –

  1. chargeable income;
  2. tax payable;
  3. tax paid;
  4. tax outstanding or alternatively a statement to the effect that no tax is due; and
  5. tax payer identification number (T.I.N).

Why do I need my tax clearance certificate?

A ministry, department or an agency of government or a commercial bank with whom you have any dealing with respect to any transactions may demand your tax clearance certificate for the three years immediately preceding the current year of assessment and shall verify the genuineness by referring same to the issuing tax authority before conducting such transaction with you.

Such transactions include:

  1. application for Government loan for industry or business;
  2. registration of motor vehicle;
  3. application for certificate of occupancy;
  4. application for award of contracts by Government, its agencies and registered companies;
  5. application for trade licence and import or export licence;
  6. application for transfer of real property;
  7. application for registration as a contractor;
  8. confirmation of appointment by Government as chairman or member of a public board, institution, commission, company or to any other similar position made by the Government;
  9. application for registration of a limited liability company or of a business name;
  10. appointment or election into public office.
  11. any other transaction as may be determined from time to time.

Note the following, if;

  1. for the purpose of obtaining a tax clearance certificate, you give incorrect information in relation to any matter or thing affecting his liability to tax; or
  2. obtain a tax clearance certificate through misrepresentation, forgery or falsification,

You are guilty of an offence and liable on conviction to a fine of N50,000 plus twice the tax payable by you or to imprisonment for three years or to both such fine and imprisonment.

A person, ministry, department or an agency of government or a commercial bank, who fails to request for your tax clearance certificate before performing such transaction with you is guilty of an offence and is liable on conviction to a fine of N5,000,000.00 or to imprisonment for 3 years or both fine and imprisonment.

What is P.A.Y.E?

P.A.Y.E. refers to “Pay As You Earn”. It is a method used to deduct personal income tax at the source the moment an employee earns their salary. It is deducted by the employer and paid to the relevant tax authority on behalf of the employee.

Every employer shall be required to file a return with the relevant tax authority of all emoluments paid to its employees, not later than 31st January of every year in respect of all employees in its employment in the preceding year failure which such employer shall be liable on conviction to a penalty of N500,000 in the case of a body corporate and N50,000 in the case of an individual.

When should I as an employer remit the P.A.Y.E tax of my employees?

As an employer, you are expected to remit the P.A.Y.E tax of your employees by the 10th day of every succeeding month. This day is called the due date for remittance.

Where do I go where dispute arise regarding my tax?

The Tax Appeal Tribunal has the powers to entertain all cases arising from operations of this Personal Income Tax Act.

Example of How to Calculate Personal Income Tax

CONSOLIDATED SALARY / GROSS EMOLUMENT

Determine the consolidated salary which is the gross emolument of the Tax Payer Per Annum. That is Basic Salary, Housing, Transport, Leave, Utility, Furniture, Meal Allowances etc.

Multiply by 12 to get the gross Per Annum

 ItemAmount (N)
1.Basic Salary50,000
2.Housing20,000
3.Transport10,000
4.Meal10,000
5.Furniture10,000
 TOTALN100,000

Total consolidated salary is N100,000 Per Month.

Therefore N1,200,000 Per Annum (N100,000 X 12)

  • CONSOLIDATED RELIEF ALLOWANCE (CRA)

A Tax relief of N200,000.00 or 1% of the Consolidated Salary, whichever is higher, plus 20% of the Consolidated Salary is given.

Less N200,000 from the N1,200,000

Also less 20% from N1,200,000 = N240,0000.

Therefore CRA = N200,000 + N240,000 = N440,000.

  • TAX EXEMPT ITEMS

Check Tax payer’s contribution in any of the following:

  • National Housing Fund Contribution (Mandatory contribution of 2.5% of monthly income of Nigerians earning N3000 and above per annum)
    • National Health Insurance Scheme (5%)
    • Life Assurance Premium (Tax deductibility applies if withdrawn within 5 years)
    • National Pension Scheme (8% of Basic, Housing and Transport)
  • ASCERTAIN CHARGEABLE INCOME

Compute taxable income based on steps 1 to 3 which is less CRA from consolidated salary.

N1,200,000 – N440,000 (CRA) = N760,000.

Therefore, for earnings of N1,200,000, the chargeable income therefore is N760,000.

  • INCOME TAX RATES

Apply the Tax Band to the Chargeable Income to arrive at the tax payable per annum:

First N300,000 @ 7% N21,000

Next N300,000 @ 11% N33,000

Next N500,000 @ 15% N75,000

Next N500,000 @ 19% N95,000

Next N1,600,000 @ 21% N336,000

Over N3,200,000 @ 24%

Therefore, for a Chargeable Income of N760,000 the Tax will be:

1st N300,000 @ 7% = N21,000 (Remaining N460,000)

Next N300,000@11% = N33,000 (Remaining N160,000)

Next N500,000 @ 15% = N160,000 X 15% = N24,000

Total Tax payable per Annum = N21,000 + N33,000 + N24,000 = N78,000 PA

  • MONTHLY TAX PAYABLE

The Tax Payable Per Annum is divided by 12

N78,000 divided by 12 = N6,500 Per Month.

Therefore the tax payable every month shall be N6,500 on the PAYE Scheme.

  • MINIMUM TAX DETERMINATION

Where the Chargeable Income obtained is lower than 1% of the consolidated or gross emolument then 1% of the consolidated salary shall be the Tax Payable Per Annum

Written by Imeh Imeh LLB, BL

What Law Guides Personal Income Tax (PIT) in Nigeria The Personal Income Tax is guided by the Personal Income Tax Act Cap P8 LFN 2004 (as amended) What is your Personal Income? Your personal income is total amount of money you make from any trade, business, profession or vocation and pension received from such. Who is to Pay the Personal

Learned Scribbles

Are Moot Court Competitions Important for Law Students? – My Experience

fredericknkobowo

June 27, 2023

MY EXPERIENCE

I began my advocacy journey while in my first year with participation in webinars, workshops and seminars on learning the rudiments of advocacy and what it takes for one to thrive in it. Basically, as at then, I had keen interest in Litigation (even till now, my interest is not as intense as it used to be. Lol). Consequently, I dedicated my full time to committing myself to great learning of what advocacy (participation in moot and mock competitions) entails. While as a fresher, I was drafted into a chamber (out rightly the best chamber in my faculty at the moment) where I could learn more about advocacy, participate directly in moot and mock competitions and enjoy the leverage to perfect any craft in me. I was directly coached and trained by my seniors who showed me the way to get things done – precisely what it takes to thrive in it. I was thirsty for knowledge and eager to learn everything it takes but I later figured out the learning is a gradual process as it never stops.

I was well coached and was given the necessary exposure to the life in advocacy. I was made to realize that full commitment to this new life would preclude me from access to every social life a student on campus would wish to enjoy. But I settled within myself that since I am on an academic journey, I need not bother about social life as such – very hard to conclude as I am a social type, I just had to accept things that way.

In my first year, I participated in my first moot competition within my faculty when I led my team from my chamber through intense preliminary rounds to the semi finals before I faced a seemingly tougher team. Lol. At every stage, I always learned new things. Most importantly, the role of ‘confidence’ and ‘delivery’ in oral advocacy. I did not stop there, I went back to my drawing board to catch more glimpse of what I still needed to learn, meet up with more senior colleagues within the faculty and outside the school, attended more webinars, and watched keenly the court appearance of senior colleagues.

Then in my second year, I was more eager to put everything I have learnt and observed into practice. I participated in another moot competition in the first semester of my second year, led my team again and emerged best counsel in two consecutive preliminary rounds of the competition. While this is not to tooth my horn but I would say the best counsel awards gave me more recognition beyond my chamber, to the entire faculty as a whole.

However, I knew I still needed more things to learn as I was not satisfied with my records. So I did not get relaxed but rather thirsty to learn more. I sought more knowledge from new moot tutors.

Suffice it here to say that my great thirst in advocacy was firstly spurred while I was a law aspirant by the sterling records of my seniors who have gone ahead of me. I read their stories online and I was wowed by their feats, how much they have achieved and how far they had gone. I was ready to take up the mantle upon my resumption and give my own best. I was not so sure where my best would lead me to, but I was certain my best would lead me somewhere – I can not learn and practice so hard and not get a giant leap, was my full conviction. Upon resumption, I heard directly from my seniors a more elaborate story of the great successes the seniors who had gone far ahead made during their undergraduate days. I was motivated by all these and was ready to give my own best.

In the early period of the second semester of my second year, I participated in another moot competition where my team made it to the finals and I was once again awarded the best counsel of the final round. The moments are still fresh in memory but the records was not enough, after all, man is insatiable. Lol. I made all these participations while lectures were ongoing. I know you would care to know how it was balancing these extra curricular activities with my class lectures and academics. It has not been so easy thus far balancing it out but i cannot rule out the place of passion. Before I took up the mantle, I was ready for everything it would take and was ready to ensure my academics does not suffer from my keen participation. And anywhere issue arises, I was always prepared to correct the anomaly – everything banks on readiness, if there is a will, there must be a way.

My greatest participation in Moot and Mock Competitions took place during the prolonged strike. Before I committed myself to further participation in this competition, I decided to intern in a leading litigation firm in my state where I was further exposed to rules of court, drafting of court processes, court languages, considerable appreciation of court procedures, development of legal research skills and so much more. After learning a significant amount of all these, I rounded off my internship and travelled down to my school for preparation for national competitions. I proceeded for my first national competition in Delta State alongside one of my senior colleagues where we were listed among the schools with the best court appearances and we were therefore awarded plaques, laurels and cash prizes which we took down to our faculty.  I represented the faculty in more national competitions before the strike ended and it all ended in good notes with great recognition of the oratory skills I and my teammates displayed.

While you would right now feel I have done much, I was yet unsatisfied that I have done little and there was still much to learn. It imperative to state that my participation in national competitions got me exposed to many other new things as regards advocacy (moot and mock competitions), competing with other brilliant and sharp brains from other schools really got me exposed. I made connections with these students, learn from them also and now we all still keep contacts, or even, we are more of close friends now. We share daily tips of more principles of advocacy and discuss career plans. The exposure has been great and really helpful.

During the days I had intensive learning about what advocacy entails, I decided to watch YouTube videos of moot appearances of law students from different parts of the world. I was intrigued by the level the oratory and drafting skills have taken some students to or out rightly how far they had gone, traveling to top countries across the world for participation in moot competitions.  I believed this rare feat can be achieved only if I keep learning and practicing. Thus, early this year, I decided to participate or show interest in an international law moot competition. It is the most prestigious and biggest moot court competition for law students across the world – The Philip Jessup International Law Moot Court Competition. I was at first reluctant to participate reasons being that I was still in my third year and was yet to offer international law. However, I had to abandon my worries because after all, the moot competitions I have all participated in, the subject matter of the facts have most time been on areas of law I have not been lectured on. They are things I always have to study myself.

As a result of this, I started drafting my arguments and practicing for the Jessup Competition. I represented my school alongside a senior colleague in the competition. We are paired against top schools in Nigeria from the preliminary rounds to the semi finals and finals of the competition. We made it to the finals of the competition and during the Judges’ pronouncement (after the round), we were announced as the winner of the competition having beaten our opponent with over 20 marks gap. We were thereafter informed that our victory has earned us a pride of place and a rare feat to represent our country in the international round of the competition in Washington D.C, United States of America where we will be competing with top schools from all over the world. It sounded surreal to me. I was finding it hard to put my thoughts right, align my reasoning and bring myself out of sudden shock the information subjected me to. Immediately, I created in my head a picture of what my traveling to the United States could look like. I found myself in-between myriads of thoughts; did I just make it to travel out to the United States? Of all countries, why United States? Will I really be getting the most reputable United States Visa? These thoughts and more left me puzzled that till now I cannot explain rightly how I felt when the information came.

With the necessary supports from my school, in the month of April, I and my teammates made our way to the United States. Unbelievable right? (It is still a moment that would take a full day or more to share). I was thus made to represent my school and my country at large in the United States in the international round of the Philip Jessup Competition. My team and I competed with other brilliant minds from top schools in the world; Harvard University, Oxford, Cambridge, Yale, Columbia law school, King’s College, Amsterdam University etc (over 138 schools in the world). The competition was really intense with great exposure to many things, connections with sharp and brilliant minds (law students) and with distinguished and top legal professionals in the world, with reputable law firms legal experts like White and Case LLP lawyers, among others.

Resoundingly, you would by now feel I have achieved much more than before. However, i still feel this is little and will not stop learning. I think this just open the floodgate to look into the bigger picture of what hard work and consistency can bring. Thus, since I am human – quite insatiable, I will not stop learning and practicing. This is beginning of another chapter!

Benefits of Participating in Moot Competitions – Why a Law Student Should Take it Seriously.

The benefits of participating in moot competitions is numerous and not exhaustive. The more you participate in competitions, the more you figure out the benefits that accrues to you via your participation.

Foremost, participating in advocacy competitions builds your confidence and sharpen your oratory skills. It kills your stage fright. Ordinarily, there is hardly a place, podium, or even before a large crowd that you would not be able to speak. This participation would make you have a full control of any stage as if the world is your oyster.

Also, the participation will expose you to different areas of the legal profession aside what you are being taught within the four walls of your classroom. It even makes you see in practice the theoretical principles you are being taught in class.

Furthermore, the experience you get from moot activities do go a long way in smoothing your paths most especially when you are trying to find a niche for yourself in the legal profession to specialize in. You just cannot tell where you would get to (with moot activity) that would cause a huge impact or  contribute immensely to your knowledge of law or general knowledge about the legal profession.

In addition, moot and mock competitions is the best extracurricular activity a law student can engage himself or herself in. In fact, I out rightly believe that moot and mock competitions should not be best regarded as ‘extracurricular activity’. This is because moot and mock activities have its way of contributing to academic performance in class – you just have to be smart and know when to apply some things.

Having said all these, it is imperative for me to reiterate that my experience thus far as a moot and mock enthusiast has been an interesting, educating and a worthwhile venture. And that the benefits that accrues from participation is expansive, limitless and awesome.

Written by Oluboyo Taiwo LLB (in view)

MY EXPERIENCE I began my advocacy journey while in my first year with participation in webinars, workshops and seminars on learning the rudiments of advocacy and what it takes for one to thrive in it. Basically, as at then, I had keen interest in Litigation (even till now, my interest is not as intense as it used to be. Lol).

Law Library

Nigeria Data Protection Act 2023 (PDF DOWNLOAD)

fredericknkobowo

June 19, 2023

Nigeria’s President, Bola Ahmed Tinubu has signed the Data Protection Bill 2023 into law. The new law provides a legal shield to protect your personal data online and offline in Nigeria.

The law also sets up the Nigeria Data Protection Commission. A National Commissioner will lead it, controlling how personal data is processed.

Download a copy of the Act HERE.

Nigeria’s President, Bola Ahmed Tinubu has signed the Data Protection Bill 2023 into law. The new law provides a legal shield to protect your personal data online and offline in Nigeria. The law also sets up the Nigeria Data Protection Commission. A National Commissioner will lead it, controlling how personal data is processed. Download a copy of the Act HERE.

Law and Business

HTKYOB Episode 1 – Destruction is cheap.

fredericknkobowo

March 23, 2023

Falling from a mountain is way faster and easier than climbing one. I mean just leave the ropes (or whatever support it is you’re using), lean your back against the empty air and start falling while shouting on your journey down. Three short but sure steps. And Bam, you’ll be with your ancestors.

For the most part, the same thing applies to businesses.

In effect, building a business is pretty demanding but ruining one can take as short a period as 14 days. Yes, you read that right – 14 days and I swear, I’m not pulling your legs. Yes, you can check them (your legs), I am not pulling them.

On a sincere note, a multimillion-dollar company can become non-existent in just 14 days.

Take the story of one of the fastest growing cryptocurrency exchanges – FTX for example. Last year (2022), the company shut down its operations after having persistent trouble for 14 days.

Shocking one, no cap. But such sporadic collapse of successful companies is not peculiar to the cryptocurrency industry.

In 2008, Lehman Brothers – an investment bank that had been in operation for over 150 years, came to a grinding halt as well.

Same thing with Encron, Myspace and Anderson just to mention a few. These were very successful companies and today? They are no more. You can visit Failory’s Graveyard to see some start-ups/companies that failed and why.

According to Investopedia as of 2021, 20% of startups failed in the first year, 50% within five years and 65% within 10 years of beginning their operations. That’s a pretty gloomy outlook if you ask me. But history repeatedly confirms that even the big companies are not immune from failure as well.

Our point is; destroying a business is in fact easier than building one. Way easier.

And it really doesn’t matter the size of the company. A big company can fold up as quickly as a small company could.

Destruction is cheap but…

But it can be avoided. It doesn’t have to happen to easily.

We also must say that while the eventual failure of a company might unfold in a very short period of time, the tale-tell signs often show themselves much earlier. If these signs are clearly kept from the Company’s books other cues usually exist; maybe the company’s unsustainable debt profile, its failing investments, its unsustainable business model, its failure to comply with Government regulations or even its failure to innovate its business.

Hey, we need to hold ourselves in all ready, this series is on destruction and not the other way round.

So yes, our point is, destruction is cheap. It can be avoided and we will show just how you’ve been courting destruction for your business. If you are not already, we’d show you how to jump with your business into bed with destruction.

For now, remember destruction is cheap.

Falling from a mountain is way faster and easier than climbing one. I mean just leave the ropes (or whatever support it is you’re using), lean your back against the empty air and start falling while shouting on your journey down. Three short but sure steps. And Bam, you’ll be with your ancestors. For the most part, the same thing

Law Library

Delta State High Court Civil Procedure Rules 2009

fredericknkobowo

March 15, 2023

In 2009, the Chief Judge of Delta State (as he then was); Hon Justice Rosaline Bozimo made the High Court Rules for the State.

Download a copy of the Rules HERE.

In 2009, the Chief Judge of Delta State (as he then was); Hon Justice Rosaline Bozimo made the High Court Rules for the State. Download a copy of the Rules HERE.

Law Library

The Nigerian Electoral Act 2022 (Download PDF)

fredericknkobowo

March 15, 2023

On the 25th of February 2022, President Muhammadu Buhari signed the Electoral Amendment Bill into Law.

Now popularly known as the Electoral Act 2022, a copy of the legislation as put together by Policy and Legal Advocacy Center, Abuja can be downloaded HERE.

On the 25th of February 2022, President Muhammadu Buhari signed the Electoral Amendment Bill into Law. Now popularly known as the Electoral Act 2022, a copy of the legislation as put together by Policy and Legal Advocacy Center, Abuja can be downloaded HERE.

Law Library

Business Facilitation (Miscellaneous Provisions) Act (DOWNLOAD PDF)

fredericknkobowo

March 15, 2023

The Business Facilitation (Miscellaneous Provisions) Act (the “Act”) became law when, on 14 February 2023, the President of the Federal Republic of Nigeria, Muhammadu Buhari, signed the bill passed by the Senate in December 2022. The Act is a legislative brainchild of the Presidential Enabling Business Environment Council aimed principally at removing bureaucratic bottlenecks and administrative impediments to doing business in Nigeria.

Download a copy of the Act HERE

The Business Facilitation (Miscellaneous Provisions) Act (the “Act”) became law when, on 14 February 2023, the President of the Federal Republic of Nigeria, Muhammadu Buhari, signed the bill passed by the Senate in December 2022. The Act is a legislative brainchild of the Presidential Enabling Business Environment Council aimed principally at removing bureaucratic bottlenecks and administrative impediments to doing business

Legal Articles Law Central Law Central

Nigerian Cases on Jurisdiction.

fredericknkobowo

March 9, 2023

What is Jurisdiction?

UKUT & ORS v. APC & ORS (2019) LPELR-47203(CA)

“By way of prefatory remarks, jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding, see Ajomole v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Unltd. v. LASEPA (2002) 18 NWLR (Pt.798) 1; Ndaeyo v. Ogunnaya (1977) 1 IMSLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017)1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1.” Per OBANDE FESTUS OGBUINYA, JCA (Pp 10 – 11 Paras D – A)

ZURU v. FAKAI (2021) LPELR-55015(CA)

“A question that must be answered is: what is jurisdiction in law and what are its ingredients? In the case of SHITTA-BEY VS. ATTORNEY-GENERAL, FEDERATION (1998) 10 NWLR (PT. 570) PAGE 392, jurisdiction was defined as follows: “it is the authority a Court of law has to entertain and decide a matter brought before it by litigants. It embraces every kind of judicial action be it criminal, civil and what nots. It is the power of Court to decide a matter in controversy and it presupposes the existence of a duly constituted Court with control over the subject matter and the parties.” ?While the ingredients of jurisdiction exist where: (a) The subject matter of the case is within the jurisdiction of the Court and there is no feature in the case which prevents the Court from exercising its jurisdiction. (b) The Court is properly constituted as regards members and their requisite qualification and no member is disqualified for one reason or the other; and (c) The case is initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See the cases of MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341; SKENCONSULT (NIG) LTD VS. UKEY (1981) 1 SC 6; ISHOLA VS. AJIBOYE (1994) 6 NWLR (PT. 352) PAGE 506; WESTERN STEEL WORKS LTD VS. IRON AND STEEL WORKERS UNION (1986) 3 NWLR (PT. 30) PAGE 617 and ODOFIN VS. AGU (1992) 3 NWLR (PT. 229) PAGE 350.” Per MOHAMMED BABA IDRIS, JCA (Pp 8 – 9 Paras B – C)

EGBELE v. POSTMASTER GENERAL (2010) LPELR-4362(CA)

“What determines jurisdiction is simply the enabling law on jurisdiction and the reliefs sought for in the suit. If the relief is within the Court’s jurisdiction and the enabling law confers on the Court jurisdiction on the matter the Court must assume jurisdiction, otherwise it lacks jurisdiction in the matter.” Per HUSSEIN MUKHTAR, JCA (Pp 13 – 13 Paras E – F)

Why is Jurisdiction Important and the effect of the Lack of Jurisdiction on proceedings before the Court?

NUNGWA v. BOKO & ORS (2019) LPELR-48194(CA)

“…the issue of jurisdiction is fundamental as it touches on the competence of the Court to entertain any process, be it an application or an appeal, filed before the Court, Jurisdiction is a threshold issue and the livewire for any determination. It is the power of the Court to hear and determine the subject matter in controversy between the parties. see Ogumka V CAC (2010) LPELR-4891(CA). The jurisdiction of a Court means the limits which are imposed upon the power of a Court to hear and determine issues between persons seeking to avail themselves of its process by reference to the following factors: (1) The subject matter of the issue; or (2) The persons between whom the issue is joined; or (3) The nature of relief sought; or (4) A combination of these factors. Thus, jurisdiction embraces the settled practice of the Court as to the way in which it will exercise its power to hear and determine issues which fall within its purview; or as to the circumstances in which it will grant a particular kind of relief which it has power to grant; including its settled practice to refuse to exercise such powers or to grant such relief in particular circumstances. See Orubu V NEC (1988) NEC (12 SC (Pt. III) 1; Aladetan V Wole (2010) LPELR-3699(CA) 14.” Per JUMMAI HANNATU SANKEY, JCA (Pp 27 – 28 Paras B – B)

REGISTERED TRUSTEES OF IMPORTERS ASSOCIATION OF NIGERIA & ORS v. OKEREKE (2019) LPELR-46967(CA)

“The importance of jurisdiction in every case before the Court cannot be over-emphasized. The importance of jurisdiction is the reason why it can be raised in Court at any stage of the case. See Petrojessica Ent. Ltd & Anor v. Leventis Technical Co. Ltd (1992): 5 NWLR (Pt. 244) 675; Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410; Utih & Ors v. Onoyivwe & Ors (1991) 1 NWLR (Pt. 166) 166. The issue of jurisdiction is so important that where in fact the Court has no jurisdiction with respect to a matter before it, the active support or ignorance or silence of the parties to that fact cannot vest the Court with the requisite jurisdiction which is the essential pre-condition to the exercise of judicial powers. See Ijebu-Ode LG. v. Adedeji (1991) 1 NWLR (Pt. 166) 136.” Per STEPHEN JONAH ADAH, JCA (Pp 9 – 9 Paras B – E).

MOHAMMED & ORS v. ABDULLAHI (2022) LPELR-58052(CA)

“a Court has no powers to adjudicate over a matter if it lacks jurisdiction and if the Court decides to go ahead, all the proceedings and decision of the Court will amount to a nullity. See Hameed Toriola & Anor vs Mrs. Olushola Williams (1982) 7 S.C. 27. In Buremoh vs Akande (2017) LPELR-41565 (SC), the apex Court held: “…The settled position of the law is that the issue of Jurisdiction, being so fundamental to the Court’s power to adjudicate, can be raised at any stage of the proceedings, even before this Court. It can be raised orally. It can also be raised suo motu by the Court. This is because, no matter how well the proceedings are conducted or how erudite the judgment arising therefrom, it all amounts to a nullity where the Court lacks jurisdiction. See Madukolu Vs Nkemdilim (1962) 1 ALL NLR 587; Nnakwe Vs The State (2013) 7 SCNJ 179; Oloriegbe Vs Omotosho (1993) 1 SCNJ 30.” This Court and the apex Court in a number of cases stated the importance of jurisdiction in a case. On the importance of jurisdiction, this Court has had course to make a pronouncement in the case Aladesanmi & Ors vs Holden properties (Nig) Ltd (2018) LPELR-49357 in these words: “The subject of jurisdiction is a serious one and indeed it is the life wire of any proceeding. A Court that adjudicates on a matter it has no jurisdiction would have wasted its time, that of the litigants, the Court staff and indeed material, human and financial resources. This is because it is trite that any decision reached by a Court over a matter it has no jurisdiction will amount to nullity. It is as wasteful as a journey without destination or a journey into an endless or bottomless pit. See CHIEF OF AIR STAFF & ORS VS. IYEN (2005) 1 SC (PT II) 123, UYAEMENAH NWORA & ORS VS NWEKE NWABUEZE NSCQR 46 2011 PAGE 409. This is a journey of a beginning without an ending. No Court and indeed no human being should want to venture into such a journey which is not only tasking but fruitless. The question is, did the lower Court engage in such a journey? In answering that question, it will not be out of place to know what jurisdiction means and what confers jurisdiction on a Court. Jurisdiction is the power of a Court to adjudicate on a matter. This is what gives the Court power to welcome a litigant. This is the strength that a Court has to deal with matters brought before it. This is conferred mainly by statute. The matters that a Court can handle are what the jurisdiction of the Court is all about. Clearly, in Nigeria it is not every Court that has jurisdiction to handle all cases, the statute can confer jurisdiction to handle all cases. The statute can confer jurisdiction on a Court. See A.G. LAGOS VS. DOSUNMU (1989) 6 SC (PT 2) 1.” Jurisdiction is as important to a Court, just as water is important to fish and breath is to human beings. Jurisdiction is like water to fish and breath to a human being. Without water, fish cannot survive just as human beings cannot survive without breath. The power of a Court without jurisdiction is like a toothless bulldog or a king without a kingdom. It is jurisdiction that activates the judicial powers of a Court.” Per EBIOWEI TOBI, JCA (Pp 27 – 29 Paras A – F).

ADETAYO & ORS v. ADEMOLA & ORS (2010) LPELR-155(SC)

“Therefore, when a Court lacks jurisdiction, it lacks the necessary competence to try the case. This is because, a defect in competence, is fatal as the proceedings, are null and void ab initio. See the case of Ogigie & 3 ors. v. Obivan (1997) 10 SCNJ 1 citing the cases of Alhaji Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.1l7) 513 ; (1989) 9 SCNJ. 1: Salati v. Shehu (1986) 1 NWLR (Pt.15) 198; Alade v. Alemuloke & 2 ors.(1988) 1 NWLR (Pt.69) 201 @ 204 ; (1988) 2 SCNJ 1 ; Chief Oloba v. Akereja (1988) NWLR (Pt.84) 508 @ 510; (1988) 7 SCNJ 56.” Per IKECHI FRANCIS OGBUAGU, JSC (Pp 28 – 28 Paras A – C)

APC & ORS v. ENUGU STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2021) LPELR-55337(SC)

“Where the Court lacks jurisdiction to entertain a cause or matter, any step taken in the proceedings amounts to an exercise in futility. It is null and void. See Madukolu Vs Nkemdilim (1962) 1 ALL NLR 387 @ 594, Utih vs Onoyivwe (supra): IDISI vs Ecodril Nig. Ltd. & Ors (2016) ALL FWLR (Pt. 850) 1016: Gwede vs INEC & Ors. (2014) 18 NWLR (Pt. 1438) 56.” Per KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC (Pp 34 – 34 Paras B – D)

Conditions that Must be met before a Court has jurisdiction.

ADETOYINBO & ORS v. PRESIDENT & OTHER MEMBERS OF WAKAJAYE GRADE C CUSTOMARY COURT, WAKAJAYE, IBADAN & ORS (2015) LPELR-41714(CA)

“The issue of jurisdiction is very important in adjudication and the term has been variously described by jurists as the life blood of any adjudication. See Katto v. CBN (1991) 11-12 SC 176. The general principle of law is that before a Court can be said to be competent or claim to have jurisdiction in respect of any matter – (a) It must be properly constituted with respect to the number and qualification of its members (b) The subject matter of the action must be within its jurisdiction. (c) The action is initiated by due process of law and (d) Any condition preceded to the exercise of its jurisdiction must have been fulfilled. (The underline is mine) See the cases of Madukolu v. Nkemdilim (1962) 1 ALL NLR 587, Dangana & Anor. v. Usman & 4 Ors (2012) 25 C (pt. 111) 103 and N.U.R.T.W. & Anor. v. R.T.E.A.N. & 5 Ors (2012) 1 SC (pt.11) 119.” Per MUDASHIRU NASIRU ONIYANGI, JCA (Pp 20 – 21 Paras D – B)

NNAKWE v. STATE (2013) LPELR-20941(SC)

“The competence of a Court to adjudicate on any matter had long been laid to rest in the locus classicus case of Madukolu V. Nkemdilim supra wherein Bairamian, F.J made the following observations at page 348 and said:- “Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a Court. Put briefly, a Court is competent when- (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.” For purpose of conferring jurisdiction therefore, the Court must be absolutely certain and satisfied that the offence or crime is directly donated by the jurisdiction conferred in the enabling law; where the offence or crime is however outside the statutory provision, the Court cannot exercise jurisdiction as it lacks the authority to do so. See Onwudiwe V. F.R.N. (2006) 10 NWLR (Pt. 988) 382 at 425.” Per CLARA BATA OGUNBIYI, JSC (Pp 55 – 56 Paras B – C).

Whether Parties can by Consent Waive Jurisdiction?

OYENIRAN & ORS v. EGBETOLA & ANOR (1997) LPELR-2876(SC)

“Indeed, it is trite that parties cannot by consent or waiver confer jurisdiction on the Court where there is no jurisdiction in a Court to try the case.” Per SYLVESTER UMARU ONU, JSC (Pp 33 – 34 Paras G – A)

Jurisdiction of the Court of Appeal

The Jurisdiction of the Court of Appeal to Hear an Appeal is linked to/Depends on the Jurisdiction of the Trial Court to entertain the suit leading to the Appeal

Legal Issue: Whether an appellate court can exercise jurisdiction over a matter where the lower Court(s) lacks jurisdiction?

Suggested search query on law pavilion primsol: Whether an appellate court can exercise jurisdiction over a matter where the lower Court(s) lacks jurisdiction.

Principle: Where it is shown that the lower Court lacks the jurisdiction to adjudicate on a cause or matter an Appellate Court will also lack jurisdiction to determine the merit of an appeal emanating therefrom.

NNPC & ANOR v. EFEBO (2019) LPELR-47904(CA), SARANYI v. JIBRILLA (2019) LPELR-48781(CA), WARD & ORS v. SUFFOLK PETROLEUM SERVICES LTD & ANOR (2017) LPELR-45204(CA), ODEY v. ALAGA & ORS (2021) LPELR-53408(SC), APGA V. ANYANWU (2014) 7 NWLR (PT 1407) 541 at 567-568, ANYANWU v. OGUNEWE & ORS (2014) LPELR-22184(SC), MUSICIAL COPYRIGHT SOCIETY OF (NIG) LTD v. NCC (2016) LPELR-41009(CA),

UMEZ ENGINEERING CONSTRUCTION CO. LTD & ANOR v. ALOZIE (2018) LPELR-44656(CA), CHUKWURAH v. APC & ORS (2023) LPELR-59735(CA)

SARANYI v. JIBRILLA  (2019) LPELR-48781(CA) 

“An appellate Court cannot exercise jurisdiction in a matter once the lower Court or the Court below is without jurisdiction. See Ehuwa vs. Ondo State (2006) 12 SCNJ 259 at 269.” Per JAMES SHEHU ABIRIYI, JCA (Pp 11 – 11 Paras D – E)

WARD & ORS v. SUFFOLK PETROLEUM SERVICES LTD & ANOR (2017) LPELR-45204(CA) 

“…Since the lower Court was not clothed with the jurisdiction to try the matter ab initio, this Court is stripped of the vires to hear the appeal. SeeIkechukwu v. Nwoye (2015) 3 NWLR (Pt. 1446) 367; Yar’adua v. Yandoma (2015) 4 NWLR (Pt. 1448) 123; Lafferi v. NAL Merchant Bank (2015) 14 NWLR (Pt. 1478) 64; Egbuchu v. CMB Plc. (2016)) 8 NWLR (Pt. 1513) 192. The reason is not far-fetched. In the view of the law, the jurisdiction of a higher/appellate Court in a matter is tied to that of a lower Court where an appeal emanates. In effect, the want of jurisdiction of the lower Court over the suit contaminates the jurisdiction of this Court to hear the appeal. In other words, the appeal, as constituted, is infested with incompetence.” Per OBANDE FESTUS OGBUINYA, JCA (Pp 22 – 23 Paras C – A)

SPDC v. GOVT OF BAYELSA STATE & ANOR (2017) LPELR-45224(CA) 

“For the sake of clarity and completeness, I must place on record, pronto, that since the lower Court was not clothed with the jurisdiction to try the matter ab initio, this Court is stripped of the vires to hear the appeal, see Ikechukwu v. Nwoye (2015) 3 NWLR (Pt. 1440) 367; Yar’adua v. Yandoma (2015) 4 NWLR (Pt. 1448) 123; Lafferi v. NAL Merchant Bank (2015) 14 NWLR (Pt. 1478) 64; Egbuchu v. CMB Plc. (2016) 8 NWLR (Pt. 1513) 192. The reason is obvious. In the view of the law, the jurisdiction of a higher/appellate Court in a matter is tied to that of a lower Court where an appeal emanates. In effect, the want of jurisdiction of the lower Court over the suit contaminates the jurisdiction of this Court to hear the appeal. In other words, the appeal, as constituted, is plagued with incompetence. The gross and dismal effect is that the entire proceedings and the decision of the lower Court, delivered on 12th April, 2016, were/are trapped in the web of nullity. In the result, the decision of the lower Court is worthless in the hands of the respondents. Since it was mired in a nullity, it was/is barren to give birth to a viable appeal. In sum both the suit and the appeal are rendered incompetent.” Per OBANDE FESTUS OGBUINYA, JCA (Pp 29 – 30 Paras D – D)

NNAJI & ORS v. C.O.P KADUNA STATE & ORS (2021) LPELR-55797(CA) 

“Suffice, it to say that this Court having found that the lower Court lacked the jurisdiction to have entertained the Appellants’ incompetent action, equally lacks the jurisdiction to consider the merits of the decision of the lower Court in the case. In this regard, see the case of EHUWA V. ONDO STATE INDEPENDENT ELECTORAL COMMISSION [2007] All FWLR (Pt. 351) 1415 wherein it was held to the effect that once an appellate Court determines that there was no jurisdiction in the lower Court to exercise in respect of a matter, the decision of the lower Court must be set aside leaving the appellate Court with no jurisdiction to consider talk less of making any pronouncement in relation to the null and void proceeding and order or judgment of the lower Court.” Per FATIMA OMORO AKINBAMI, JCA (Pp 10 – 11 Paras C – A)

SULEJA v. ABUBAKAR & ORS (2019) LPELR-47899(CA) 

“The trite law is that where the Court of trial lacks the jurisdiction on a cause or matter the Appellate Court is also in that circumstance devoid of jurisdiction to decide the appeal emanating from the null proceedings as in this case. The case is liable to be struck out for being incompetent and for lack of jurisdiction on the part of the trial Court. In other words, this Court cannot exercise appellate jurisdiction on an appeal where the lower Court lacks the jurisdiction to deal with the subject matter of an action. See ECOBANK NIGERIA LTD V ANCHORAGE LEISURES LTD & ORS (2018) 18 NWLR (PART 1650) 117 AT 135 C – G per PETER-ODILI, JSC who said:- “There was no appeal to the Court of Appeal on the stand of the trial Court’s striking out the contempt proceedings for lack of jurisdiction and so the appellant cannot bring the matter up at this stage at the Supreme Court. The implication is that the striking out of the contempt proceedings on a want of jurisdiction by the trial Court and the matter not appealed against, there is no vices on which it can be reopened at that stage since the Court of Appeal would lack jurisdiction and the same virus visiting this Court on that same issue. The two Courts below lacking jurisdiction, this Court automatically has been caged and is helpless as there is no basis on which it can assume jurisdiction to entertain the merits of the contempt proceeding which the two Courts below did have jurisdiction to entertain. This calls up the reminder to what is now trite in law which is that an appeal is a continuation of hearing and not on its own to be activated without a linkage to the earlier trial or appeal from a lower Court. See Ajide v. Kelani (1985) 3 NWLR (Pt.12) 248 at 269; Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (Pt.109) 250 at 266. The case of Akinbobola v. Plisson Fisko (1991) 1 NWLR (Pt.167) 270 at 285 paras. E-G would highlight what I have been trying to communicate and there this Court had stated in very clear terms the true position of things thus:- “The Court below being an appellate Court, cannot exercise jurisdiction in a matter where the trial Judge is without jurisdiction. It only exercises its appellate jurisdiction to correct the errors of the learned Judge. Hence it will have no jurisdiction to make consequential orders after it has held that the learned Judge had none. Accordingly having held that the learned trial Judge had no jurisdiction to make consequential orders the Court below could not have made because it can only exercise jurisdiction on appeal as if the proceedings had been instituted in the Court of Appeal as Court of first instance.” Per PETER OLABISI IGE , JCA (Pp 47 – 49 Paras B – D)

What is Jurisdiction? UKUT & ORS v. APC & ORS (2019) LPELR-47203(CA) “By way of prefatory remarks, jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding, see Ajomole v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Unltd. v. LASEPA (2002) 18 NWLR

Law Report Legal Articles

Cases and Principles on Criminal Trials in Nigeria

fredericknkobowo

March 7, 2023

Standard of Proof in Criminal Cases

Relevant Sections of the Evidence Act – Section 135 of the Evidence Act 2011

Synopsis – The standard of proof in criminal cases is now established to be proof beyond reasonable doubt and not proof beyond every shadow of doubt. A pertinent question would be what amounts to proof beyond reasonable doubt? In the case of Miller v Minister of Pensions (1947) 2 All ER 372, Lord Denning said on the nature of proof beyond reasonable doubt, said that; It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence, of course, it is possible but not in the least probable the case is proved beyond a reasonable doubt.”

This position has been followed by a plethora of Nigerian cases. Thus, in the case of AKINLOLU v. STATE (2015) LPELR-25986(SC), the Supreme Court described proof beyond reasonable doubt in the following words – “Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability. See Lori & anor v. State 1980 12 NSCC p. 269.” Pp 38 – 38 Paras B – C.

The provision of the law on the standard of proof required in criminal trials must be appreciated against the backdrop of the presumption of innocence of the accused persons (or defendants) as well as the position of the law that mere suspicion is not enough to ground a conviction for an offence.

Decided Cases on the Standard of Proof in Criminal Cases

AJAYI v. STATE (2013) LPELR-19941(SC)

“…the standard of proof in a criminal trial is, proof beyond reasonable doubt. Therefore, it is not enough for the prosecution to suspect a person of having committed a crime, there must be evidence which linked the person accused with the offence alleged.” Per OLUKAYODE ARIWOOLA, JSC (Pp 43 – 43 Paras B – C)

EKPO v. STATE (2018) LPELR-43843(SC)

“Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. As was held by Oputa, JSC in Bakare v The State (1987) 1 NSCC Vol. 18 P.267 at 279, the burden is on the prosecution to prove its case beyond reasonable doubt with emphasis on “reasonable”‘ That not all doubts are reasonable. It was further assessed that reasonable doubt will automatically exclude unreasonable doubt, fanciful doubt, imaginary doubt and speculative doubt i.e. a doubt not borne out by the facts and surrounding circumstances of the case. Reasonable doubt does not eliminate the possibility of any doubts whatsoever, including remote possibilities as was expressed by Denning J in Miller v Minister of Pensions (1947) 2 All ER 373 as follows:- “The law will fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with one sentence – ‘of course it is possible but not in the least probable’ the case is proved beyond reasonable doubt. See also Nwaturuocha v the State (2011) LPELR – 8119 (SC), (2011) 6 NWLR (Pt.1242) 170, Akinlolu v The State (2015) LPELR – 25986 (SC).” Per JOHN INYANG OKORO, JSC (Pp 18 – 19 Paras B – B)

ENEBELI v. STATE (2021) LPELR-54990(SC)

“The law has crystalized in our criminal jurisprudence that an accused person is presumed innocent until he or she is proved guilty. The prosecution is saddled with the burden of proving the guilt of the accused person and the standard of such proof in criminal cases or trial is proof beyond reasonable doubt. See JOSEPH ORUNGU & ORS VS THE STATE (1970) LPELR- 2780 (SC). See Section 135 of the Evidence Act 2011 (as amended) and also Section 138 of the same Evidence Act which makes provision for the standard of proof.” Per ADAMU JAURO, JSC (Pp 16 – 16 Paras D – F)

NWATURUOCHA v. STATE (2011) LPELR-8119(SC)

“It is trite law that it is not the duty of an accused to prove his innocence as a matter of law, there is always a presumption of innocence in favour of an accused. The standard of proof in a criminal trial is proof beyond reasonable doubt. It is not enough for the prosecution to suspect a person of having committed a criminal offence, there must be evidence which identified the person accused with the offence. However proof beyond reasonable doubt does not mean proof beyond shadow of doubt. Aigbadion v. State (2000) 4SC Pt.1 pg.1, Agbe v. State (2006) 6 NWLR pt. 977 pg.545, Section 138 of the Evidence Act Cap 112 Laws of the Federation 1990, Akinyemi v. State (1999) 6 NWLR pt.607 pg.449, Alonge v. I.G.P. (1959) SCNLR pt.576.” Per OLUFUNLOLA OYELOLA ADEKEYE, JSC (Pp 15 – 15 Paras B – F).

Burden of Proof in Criminal Matters

Relevant Section of the Evidence Act – Sections 135 and 139 of the Evidence Act 2011

IORHEM v. STATE (2017) LPELR-43631(CA)

“In a criminal trial, the burden of proof lies throughout upon the prosecution to establish the guilt of the accused person beyond reasonable doubt. The burden never shifts. Even where the accused person in his statement to the police admitted committing the offence, the prosecution is not relieved of the burden. Failure to discharge this burden renders the benefit of doubt in favour of the accused so that a wrong person may not be convicted for an offence he never committed. See People of Lagos State V. Umaru (2014) 3 SCNJ 114 at 137 and Igabele V. The State (2006) 6 NWLR (Pt. 975) 100.” Per JAMES SHEHU ABIRIYI, JCA (Pp 29 – 30 Paras D – A)

OMOREGIE v. STATE (2017) LPELR-42466(SC)

“The Law is settled that in criminal cases, the burden of proof that the accused committed the offence for which he is charged lies squarely on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden never shifts. See Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, Section 135(2) of the Evidence Act, Alabi v The State (1993) 7 NWLR (Pt.307) 511 8t 531 paras A-C, Solola v The State (2005) 5 SC (Pt.1) 135.” Per PAUL ADAMU GALUMJE, JSC (Pp 22 – 23 Paras F – C)

ADEKOYA v. STATE (2012) LPELR-7815(SC)

“The fundamental aspect of burden of proof in criminal trials is the presumption of innocence in favour of an accused. It is entrenched in Section 36(5) of the 1999 Constitution that “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.” The Evidence Act Section 138(1) Laws of the Federation 2004 (Now Section 135(1) of the Evidence Act 2011) however stipulates that: “If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.” Under our criminal law, it is not the duty of an accused to prove his innocence. The standard of proof in a criminal trial is proof beyond reasonable doubt. Which demands that it is not enough for the prosecution to suspect a person of having committed a criminal offence? There must be evidence which identified the person accused with the offence. The consequences of presumption of innocence in favour of an accused person are that the burden placed on the prosecution to prove the guilt of an accused person beyond reasonable doubt must be satisfied. Any slightest doubt raised by an accused person shall lead the Court to resolve this doubt in favour of an accused. Igabele v. State (2006) 6 NWLR (pt.975) pg.100, Agbo v. State (2006) 6 NWLR (pt.977) pg.545, Aigbadion v. State (2000) 4 SC (pt.1) pg.15.” Per OLUFUNLOLA OYELOLA ADEKEYE, JSC (Pp 28 – 29 Paras D – B)

OWOLABI v. STATE (2018) LPELR-46031(CA)

“In criminal trial, the burden of proving the guilt of the accused person is on the prosecution to establish his guilt beyond reasonable doubt and it never shifts. ANI V STATE (2003) 11 NWLR (PT. 830) PG. 142, IFEJIRIKA V STATE (1999) 3 NWLR (PT. 593) PG. 59, IGABELE V STATE (SUPRA).” Per UZO IFEYINWA NDUKWE-ANYANWU, JCA (Pp 25 – 26 Paras F – A)

Mens Rea and Actus Reus

Need to Prove Mens Rea and Actus Reus

LIMAN v. STATE (2016) LPELR-40260(CA)

“It is also trite that criminal responsibility for the commission of a crime is premised on the satisfactory proof of the two pillars of actus reus and mens rea, the doing of the act that constitutes the offence and the requisite mental capacity and the duty is always on the prosecution to prove the commission of a crime by proving the act done and the requisite guilty mind of the accused person beyond reasonable doubt. In other words, in a criminal trial, before an accused person is asked to undergo any sort of sentence, there must be a finding by the trial Court on the concurrence of the two main elements of any crime; that is, the actus reus and the mens rea. Actus reus is taken to be the wrongful deed that comprises the physical components of a crime and that generally must be coupled with mens rea. Mens rea is the criminal intent or guilty mind of the accused. For the prosecution to establish a criminal act against an accused person, it must go beyond establishing the commission of the unlawful criminal act by the accused and establish that the accused had the correct legal criminal mind of committing the act. The two must co-exist, whether explicitly or by necessary implication – Njoku Vs State (2013) 2 NWLR (Pt 1339) 548.” Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA (Pp 12 – 13 Paras E – D)

ABUBAKAR v. FRN (2022) LPELR-58650(CA)

In every criminal trial, the basic components that must be established by the prosecution are actus reus and mens rea. That is, the doing of the act or omission complained of and the guilty mind that procured the act or omission. That means, apart from doing the act (in this case, issuing a dud cheque), there must also be the requisite intention to deceive, cheat, swindle or defraud the recipient of the cheque and deny him of the value accrued to the cheque, after enjoying that corresponding value (by the person who issued the cheque). The legal principle of actus reus and men rea are well defined. See the cases of Eze Vs The State (2017) LPELR-42006 CA: “To establish criminal responsibility, there must be mens-rea – criminal knowledge or intention to commit the offence, to support the actus reus – the actual act. Aminu Tanko Vs The State (2009) 4 NWLR (pt.1131) 430; Okewu Vs FRN (2012) LPELR 7834 (SC).” See also Idagu Vs The State (2018) LPELR-44343 (SC): “It is a fundamental principle of criminal law that a crime consists of both a mental and a physical element. Mens rea, a person’s awareness that his or her conduct is criminal, is the mental element, and actus reus, the act itself is the physical element. The concept of mens rea, which is Law Latin for “guilty mind”, developed in England around the year 1600, when Judges began to hold that an act alone could not create criminal liability unless it was accompanied by a guilty state of mind. The degree of mens rea required for a particular common law crime varied then. In other words, mens rea is a criminal intention or knowledge that an act is wrong, and today most of the crimes are defined by statutes that generally contains a word or phrase indicating the mens rea requirement. Thus, a typical statute may require that a person act knowingly, purposely or recklessly – see legal-dictionary.thefreedictionary.com. In this case, the Appellant was charged with the offence of murder contrary to Section 316 of the Criminal Code applicable in Ondo State, and the Prosecution was expected to prove beyond reasonable doubt that the alleged act was intentional with the knowledge that death or grievous bodily harm was a probable consequence – Akinfe V. State (1988) 3 NWLR (Pt. 85) 729.” Per AUGIE, JSC” Per ITA GEORGE MBABA, JCA (Pp 17 – 19 Paras B – A)

ONYA v. STATE (2019) LPELR-48500(CA)

“The law presumes that a man intends the natural and probable consequences of his acts and that the test to be applied to the circumstances is the objective as opposed to subjective test of what a reasonable man in the street would contemplate as the probable result of his acts. In the instant case, would a reasonable man contemplate the murder of the deceased? In other words, can intention to murder the deceased be inferred from the facts and circumstances of the case? I do not think so. There was no evidence of intention by the appellant to kill the deceased or caused him any grievous harm. In the circumstances of this case, I am of the view that it was not enough for the prosecution to prove that the appellant was one of the youths that invaded the deceased’s house. It was necessary for the prosecution to prove beyond reasonable doubt that the appellant embarked on the act which resulted in the murder of the deceased with a culpable state of mind which in my view the prosecution failed to do. See BOLANLE ABEKE V. THE STATE (2007) LPELR- 31 (SC) AT 18 B-F) where the Supreme Court per TOBI,JSC held that: “I entirely agree with the appellant that to convict on the above subsection, the prosecution must prove that the accused had mens rea and actus reus. Put in common simple parlance, mens rea means a guilty mind. And actus reus means a guilty act. In cases of strict liability, mens rea comes before actus reus. In other words, the accused develops the guilty mind before guiIty act. Put in another language, the guilty mind instigates the guilty act or flows into the guilty act. The period of time between the two cannot be determined in vacuo but in relation to the factual situation in each case dictated by the state of criminality of the accused at the material time. There are instances where the mens rea is automatically followed by the actus reus. The above element of proximity apart, there could be instances of spontaneity too.”  Per MISITURA OMODERE BOLAJI-YUSUFF, JCA (Pp 24 – 27 Paras C – C

TAIWO v. FRN (2019) LPELR-47635(CA)

“Except in cases of strict liability, offences in the Criminal Law are structured to comprise of two parts – a physical part and a mental part, the physical part or actus reus means the whole definition of the crime with the exception of the mental element; See Glanville William Criminal Law 18. See also Okonkwo and Naish Criminal Law in Nigeria 45. There is also the mental element because the law does not ordinarily punish mere intention until it merges into the physical act. It is expressed as “actus non facit reum nisi men sit red’, the act does not constitute a crime unless accompanied by a guilty mind. Every offence is defined by its ingredients or elements. In this appeal, one element of the offence under Section 26 (2) of the Trafficking In Persons Act is “to obtain financial benefit” i.e. an inducement in the alleged trafficker to obtain financial benefit. This can be proved by showing a financial consideration at any stage. It must not be presumed as the trial Judge did in this case. One cannot say “she probably committed the offence as she couldn’t have done it nothing”. Pecuniary benefit in the real sense must be proved. The law is that the prosecution is bound to prove its case beyond reasonable doubt and in doing so must prove all elements of the offence physical and mental. R V. LAWRENCE (1933) 11 NLR 6; 1933 AC 699; R V. ADAMU (1944) 10 WACA 161 SECTION 135 OF THE EVIDENCE ACT 2011. A trial Court would be asking questions such as the following: i. What was paid to the defendant/appellant and why? ii. Can financial proof be established by circumstantial evidence? iii. In what pecuniary way was the defendant/appellant induced? iv. What if the intendment of the defendant/appellant was just to help the mother of Abike have normal and lawful custody of her natural child? v. Is it forbidden by any law for Abike to rejoin her mother in London? The trial Court failed in all these inquiry. The trial Judge acted on her own conjecture and not evidence. The lead judgment in this appeal by my Lord Folasade Ayodeji Ojo, JCA has demonstrated the futility of such conjecture. The stream of the Criminal Law must be kept pure and devoid of all subjectivity. Judges must look beyond the parties in cases before them.” Per NONYEREM OKORONKWO, JCA (Pp 28 – 30 Paras F – E).

STEPHEN v. STATE (2008) LPELR-8360(CA)

“It is imperative to state that the offence of being in an unlawful possession of firearms does not require proof of mens res and actus reus as contended by the Appellant’s Counsel. It is a strict liability offence. The elements do not contain the need for criminal intent or mens rea. Once a person has knowingly taken possession of an article and it remains within his control, he continues in possession of it. So long as the appellant did not come into possession of the weapon in accordance with the Act or any order made thereunder, it can never be argued that his intentions were entirely lawful. It is not necessarily a reasonable excuse that the weapon is carried only for self-defence. One, who is under constant threat, it is said, must resort to the police. He commits an offence if he regularly goes out armed for self-defence. Thus, in Bradley V. Moss (1974) Crim. LR 430, DC: Pittard V. Mahoney (1977) Crim. LR 169, Grieve V. Macleod (1967) SCT 70, it was held that there was no excuse for carrying an ironbar though D had reasonable cause to fear and did fear that he would be violently attacked and intended to use the bar for defence only, and, that, it was not reasonable for an Edinburgh taxi-driver to carry two feet of rubber hose with a piece of metal inserted at one end, though he does so for defence against violent passengers whom taxi drivers sometimes encounter at night. See Smith & Hogan Criminal Law, 10th Edition (2002) p. 461-462. In Olatunji’s case, it was because grenade was not covered by the definition of firearm, that a ballistician was held to have been needed to establish whether the grenade was a firearm or not.” Per THERESA NGOLIKA ORJI-ABADUA, JCA (Pp 16 – 18 Paras E – A).

EGWU v. STATE (2019) LPELR-48499(CA)

“The question is whether the appellant had the mens rea, that is the intention to commit murder or serious bodily harm necessary to convict him for murder. From the entire evidence on record, it is clear that the only intention of sending the task force to bring those not at the meeting was to mobilize the youths for the meeting. I do not think it can reasonable be argued that the appellant had the slightest criminal intent or could have foreseen the murder of the deceased as the consequence of trying to mobilize the youths to attend a meeting. The law presumes that a man intends the natural and probable consequences of his acts and that the test to be applied to the circumstances is objective as opposed to subjective test of what a reasonable man in the street would contemplate as the probable result of his acts. In the instant case, would a reasonable man contemplate the murder of the deceased? In other words, can intention to murder the deceased be inferred from the facts and circumstances of the case? I do not think so. There was no evidence of intention by the appellant to kill the deceased or caused him any grievous harm. In the circumstances of this case, I am of the view that it was not enough for the prosecution to prove that the appellant was the one that sent the task force and/or the youths to the deceased’s house. It was necessary for the prosecution to prove beyond reasonable doubt that the appellant embarked on the act which resulted in the murder of the deceased with a culpable state of mind which in my view the prosecution failed to do. See BOLANLE ABEKE V. THE STATE (2007) LPELR- 31 (SC) AT 18 B-F) where the Supreme Court per TOBI, JSC held that: “I entirely agree with the appellant that to convict on the above subsection, the prosecution must prove that the accused had mens rea and actus reus. Put in common simple parlance, mens rea means a guilty mind. And actus reus means a guilty act. In cases of strict liability, mens rea comes before actus reus. In other words, the accused develops the guilty mind before guiIty act. Put in another language, the guilty mind instigates the guilty act or flows into the guilty act. The period of time between the two cannot be determined in vacuo but in relation to the factual situation in each case dictated by the state of criminality of the accused at the material time. There are instances where the mens rea is automatically followed by the actus reus. The above element of proximity apart, there could be instances of spontaneity too.” In NJOKU & ORS. V.THE STATE (2012) LPELR-20608(SC) AT 21-22 (F-E), the Supreme Court per Onoghen JSC held that: “it is elementary in criminal trial that before an accused person is asked to undergo any sort of sentence, there must be a finding by the trial Court on the concurrence of the two main elements of any crime that is the ACTUS REUS and the MENS REA. ACTUS REUS is taken to be the wrongful deed that comprises the physical components of a crime and that generally must be coupled with MENS REA. MENS REA is the criminal intent or guilty mind of the accused. For the prosecution to establish a criminal act against an accused person, it must go beyond establishing the commission of the unlawful criminal act by the accused but must establish that the accused has the correct legal (criminal) mind of committing the act. The two must co-exist whether explicitly or by necessary implication. In their interplay of words/phrases reflected in their book: ‘Criminal Law 831’, 3rd edition 1982, Rollin M. Perkins and Ronald N. Boyce, stated that: “The actus reus is essential to crime but is not sufficient for this purpose without the necessary mens rea, just as mens rea is essential to crime but is insufficient without the necessary actus reus.” It is clear to me from the entire evidence on record that the prosecution failed to prove the appellant had the necessary mens rea or criminal intent to murder the deceased.” Per MISITURA OMODERE BOLAJI-YUSUFF, JCA (Pp 24 – 28 Paras D – A)

STATE v. KALIB (2021) LPELR-56084(CA)

“…for a person to be held liable for a criminal offence there must be present the physical and mental elements of the offence which in legal parlance is referred to as the actus reus and the mens rea. Except in strict liability offences, no person will be convicted for a criminal offence if either the actus reus or mens rea is missing. This is an established principle of law. In proving its case beyond reasonable doubt, the prosecution is expected to prove both aspect of the offence. See Taiwo vs FRN (2019) LPELR-47635 (CA). In Olufemi Babalola & Ors vs The State (1989) 7 SC (pt 1) 94, the apex Court per Oputa, JSC of blessed memory drove home this point in these words: “It is not necessary here to go into remote history of mens rea except to say that in common law offences, there are always present two essential elements:- (a) a guilty conduct and (b) a mind at fault. It was the great St. Augustine who once remarked that “ream linguam non facit nisi mens rea”. Probably from there, the legalists got the now popular latin maxim – actus non facitreum nisi mens sit rea. No man, (including the 1st appellant), should according to this maxim be convicted of a crime unless his physical conduct, (the actus) is accompanied with a guilty mental element a mind of fault, a mens rea. The intent and the act must both concur to constitute the crime:- Fowler v. Padget (1997) 7 T. R. 509 at p. 514. And as Stephen J., observed in R. v. Tolson (1889) 23 Q.B.D. 168 at p. 187:- “The full definition of every crime contains expressly or by implication a proposition as to the state of mind.” Per EBIOWEI TOBI, JCA (Pp 11 – 12 Paras B – E)

Proving the Ingredients of an Offence

TEMITAYO v. STATE OF EKITI (2021) LPELR-56039(CA)

“The ingredients of any offence are always discernable from the language used by the legislature in providing for the offence. See the case of ROLAND VS. FRN (2018) LPELR-43686 (CA) where this Court held on page 32, paragraph B, that: It is settled law that the ingredients of an offence are embedded in the words employed by the statute creating the offence and it will not be proper to import words, which the lawmaker did not use in order to ascertain the ingredients of the offence.” Per BALKISU BELLO ALIYU, JCA (Pp 21 – 21 Paras B – D)

ROLAND v. FRN (2018) LPELR-43686(CA)

“It is settled law that the ingredients of an offence are embedded in the words employed by the statute creating the offence and it will not be proper to import words which the lawmaker did not use in order to ascertain the ingredients of the offence.” Per UGOCHUKWU ANTHONY OGAKWU, JCA (Pp 32 – 32 Paras B – D)

TAIWO v. FRN (2019) LPELR-47635(CA)

“Having failed to establish that the Appellant benefited financially or materially from the deal, a consideration of proof of the other ingredients of the offence under Section 26(2) (Supra) has become unnecessary. Failure of the prosecution to establish one of the ingredients of the offence is sufficient to defeat the entire prosecution. In other words, failure to prove one essential ingredient of an offence is sufficient to find the case of the prosecution not proved beyond reasonable doubt.” Per FOLASADE AYODEJI OJO, JCA (Pp 25 – 26 Paras F – B)

FRN v. TALAL (2022) LPELR-57088(CA)

“I hold that the learned trial Judge was right when he held that the prosecution did not prove that the pretence or representation made to PW1 was false. Having found as above, it is not necessary to proceed to pronounce on the next element of the offence, which is, whether the Accused/Respondent made the pretence or representation with the intention to defraud. This is because, as stated on the onset of this Judgment, the prosecution have the onerous duty to establish every ingredient of the offence charged, otherwise they would have failed to prove the offence beyond reasonable doubt. In other words, once any one of the essential elements of the offence are not proved, it would mean that the charge has not been proved beyond reasonable doubt, and the accused will be entitled to an acquittal. See Alabi v. The State (1993) 7 NWLR (Pt. 307) 511; Darlington v. FRN (2018) 11 NWLR (Pt. 1629) 152 and Kassim v. State (2017) LPELR-42586 (SC). See also Ameh v. State (2018) 12 NWLR (Pt. 1632) 99 and Aliu v. State (2015) 2 NWLR (Pt.1442) 51. Thus, in Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) 170, the Supreme Court, per Adekeye, JSC said: “In the process of establishing the guilt of an accused, the prosecution has to prove all the essential elements of an offence as contained in the charge. While discharging the responsibility of proving all the ingredients of the offence vital witnesses must be called to testify during the proceedings. Before a trial Court comes to the conclusion that an offence had been committed by an accused person, the Court must look for the ingredients of the offence and ascertain critically that acts of the accused comes within the confines of the particulars of the offence charged …” It follows therefore that, were the Court finds that an essential element of the offence charged has not been proved, it would mean that the prosecution failed to prove the essential ingredients of the offence beyond reasonable doubt and the Appellant would be entitled to an acquittal. See Ibrahim v. State (2015) LPELR-40833 (SC); Okoro v. State (1988) 5 NWLR (Pt. 94) 255 and Shehu v. State (2010) 8 NWLR (Pt. 1195) 112. I therefore hold that, for failing to prove that the pretence or representation made to the Accused/Respondent was false, an essential ingredient of the offence charged has not been proved beyond reasonable doubt.” Per HARUNA SIMON TSAMMANI, JCA (Pp 31 – 33 Paras B – B)

Ingredients of the offence of Armed Robbery

MABA v. STATE (2020) LPELR-52017(SC)

“All the ingredients of the offence charged must be established or proved in order to obtain a conviction. Failure to prove any the ingredients of the offence charged, the accused is entitled to acquittal by the trial or appellate Court. In a charge of armed robbery, the prosecution is expected to prove beyond reasonable doubt, the undermentioned elements, namely- (I) that there was a robbery, (II) that the robbers or any of them was armed at the time of the robbery; and (III) that the accused person or persons was/were the armed robber(s). All the above ingredients must co-exist. In other words, if any one or more of these ingredients has not been proved; then the offence fell short of being proved beyond reasonable doubt and therefore the Court must discharge and acquit the accused person of the offence of armed robbery. See Per Sanusi, JSC in Ugboji v. State (2017) LPELR-43427 (SC).” Per UWANI MUSA ABBA AJI, JSC (Pp 36 – 37 Paras C – A)

Cont’d

Standard of Proof in Criminal Cases Relevant Sections of the Evidence Act – Section 135 of the Evidence Act 2011 Synopsis – The standard of proof in criminal cases is now established to be proof beyond reasonable doubt and not proof beyond every shadow of doubt. A pertinent question would be what amounts to proof beyond reasonable doubt? In the

Law Report Legal Articles

INSUFFICIENT DENIAL IN PLEADINGS

fredericknkobowo

March 6, 2023

Written by Carrington Omokaro, Esq

An averment in a statement of defence which states “The defendant denies paragraph _ and puts l NJ the plaintiff to the strictest proof” or “The defendant is not in a position to admit or deny _ and will at the trial put the plaintiff to proof”, amounts to an insufficient denial. Such averment does not deny the facts sufficiently enough to raise any issue in respect of the said facts. Where there is no issue the question of burden of proof does not arise. – Lewis & Peat (N.R.I) Ltd v. A.E Akhimien (1976) 7 SC 157

Explanation

In the case earlier cited, the Appellant as plaintiff in his statement of claim averred

1️⃣. The Plaintiffs are a trading company registered in Nigeria with their Headquarters in Ogbarefe in the Midwestern State.

2️⃣The Plaintiffs buy rubber lumps and process them for export

The Respondent as defendant at the trial court in paragraph 3 of the statement of defence stated The defendant is not in a position to admit or deny paragraphs 1 & 2 of the statement of claim and would put the Plaintiffs to the strictest proof thereof.

During address, learned counsel for the respondent for the first time raised the question of capacity of the appellants to sue. He submitted that there was “no legal person before the court as there is no averment that the plaintiff is a legal person.” Continuing his submissions he pointed out that no certificate of incorporation of the appellants’ company was exhibited at the trial and that in the circumstances the appellants could neither sue nor be sued. The learned trial Judge in a considered judgment held that the appellants having failed to establish their corporate personality could not maintain the claim which must be dismissed. The trial Judge further stated that “_When the corporate existence of plaintiff was impugned by the defendant, it became necessary for the plaintiff to adduce evidence in proof thereof of the fact of incorporation. Oral assertion by a junior employee of the company is not enough. The certificate of incorporation or registration under the Companies Act…………………….. should be tendered or evidence of its non-existence given

On Appeal to the Supreme Court, the Apex Court in allowing the Appeal stated

“If a defendant refuses to admit a particular allegation in the statement of claim, he must state so specifically; and he does not do this satisfactorily by pleading thus: “defendant is not in a position to admit or deny (the particular allegation in the statement of claim) and will at the trial put the plaintiff to proof”. As was held in Harris v. Gamble (1878) 7 Ch D 877. A plea that “defendant puts plaintiffs to proof” amounts to insufficient denial…We are, therefore, of the opinion that paragraph 3 of the Statement of Defence did not deny the facts alleged in paragraphs 1 & 3 of the Statement of Claim sufficiently enough to raise any issue in respect of the facts”.

Written by Carrington Omokaro, Esq An averment in a statement of defence which states “The defendant denies paragraph _ and puts l NJ the plaintiff to the strictest proof” or “The defendant is not in a position to admit or deny _ and will at the trial put the plaintiff to proof”, amounts to an insufficient denial. Such averment does