Tag: Litigation

Maybe the Judge is Idan

June 2, 2023

Maybe the Judge is Idan or maybe Idan is the Judge. Strange notion, but quite a possibility if you consider all the possibilities. Idan is a slang that recently got popular on social media streets in Nigeria a few weeks back. It means magic or charming.

But how can Idan and Judge share neighboring boundaries in a sentence?

Judges represent an ideal. We look at them expecting and in fact hoping that they represent what is fair, just, equitable, right and proper to the best of their human abilities. We go before them with disputes, expecting that we will get a sufficient grasp of what justice means and what it entails. We expect that they play by the rules with the sub-conscious notion that we have chosen the best of brains to make those rules. Well sometimes, we don’t do the later. But the point is – we expect Judges to be just.

Justice in itself is quite a difficult notion to define. What notion in law is actually easy to define? Even law itself isn’t easy to define. But back to the thought, the Judge is both the embodiment of an ideal and the expectation that that ideal holds through. I might be tempted to submit here that the Judge is Idan. Or maybe not on this score alone.

Judges in fact can and most times indeed do change the face of the law governing the relations in society. In interpreting the law, they arrive at that contestable concept of Judge made law. Lord Denning is an apt example of this. Also, various United Supreme Court decisions within the jim crow (and civil rights) era equally demonstrate this position. The Bench (and the judiciary as a system) mid-wives more societal progress and change that we might actually consider.

In fact, if I may veer off into some egoistic adoration for my profession, the legal profession affects the economy and prosperity of nations to a large degree. That is why the Judge is Idan. Let me give an example here – Judges get to decide on contractual and business relations. Businesses often move towards jurisdictions that have an efficient judicial or dispute resolution system. One that is sensitive to commercial concerns in terms of the speed of resolving disputes. So the Judge in his work as Idan controls more than the jaw-splitting arguments in his courtroom, businesses consider the efficiency of his work to determine whether to set up shop within his judicial division (or miles away from it).

But Maybe the Judge is not Idan because he is bound by rules. He is not expected to act arbitrarily. To this I ask – are rules tools in his arsenal or clutches on his heels? Indeed, there is need for certainty in the law (hence we follow our ancestors by that principle we call stare-decisis) but cases are not decided in vacuo, perculiar and distinguishing elements must be noted. Thank goodness we have exceptions to general rules and the other closely related principle or may I say escape route called per incuriam.

Also law must and does change. Many times it must catch up with societal progress – to regulate that progress (if you must) and prevent the abuse of the privileges and opportunities that come with that progress. Speak of AI, blockchain and big data – certainly the law must dine with these new issues. And when the law does dine, our Idan would surely have a chuck of meaty issues to decide or preside over from that dinner table. So maybe the Judge is Idan and Idan is the Judge.

Last and evolving example – presidential elections were conducted this year in Nigeria. These elections were conducted within the framework of a new electoral law. A portion of 200 million Nigerians voted. A President who has hit the ground running has been sworn in but election petitions have been filed. The Idans are about to vote. They will determine what the electoral law (and the legislative framework) under which the elections were conducted actually mean and whatever the Supreme Court says stays. At least for the next four years. The Judge is Idan. Idan is the Judge.

Written by Nkobowo Frederick Nkobowo ESQ

Practice Guide: Arguing An Appeal At the Court of Appeal in Nigeria

fredericknkobowo

June 1, 2023

Introduction

This article will not and does not address the mechanics and intricacies of preparing briefs of argument which is actually very different from preparing a final written address. For an exposition on how to write briefs of argument, this piece on Nigerian guru website is most apposite. Also, a number of other reading resources are mentioned at the end of this piece.

The narration below is to act as a mere guide to Counsel and might need some adjustment to suit the peculiar situation of the specific appeal concerned.

Making Oral Submissions on the Day of Hearing of the Appeal

When representing the Appellant (Appellant’s Oral adoption of brief of argument)

My Lords, this is an appeal against the judgment of Okeke J. delivered on the 5^th of July 2022. The judgment can be found at page 364 of the record of appeal. The Appellant’s notice of appeal was filed on the 8^th of July 2022 and can be found at pages 366 to 367 of the record of appeal.

By leave of Court granted on the 5^th of January 2023, the Appellant filed an amended notice of appeal. The amended notice of appeal was filed on the 12^th of January 2023. The Appellant’s brief was filed on the 15^th of January 2023 but deemed properly filed on the 17 of February 2023. We respectfully adopt same (Adumbrate if permitted by the Justices of the Court or if necessary, at all).

The Appellant also filed an appellant’s reply brief and it was deemed properly filed today. We also adopt same. In reliance on both briefs, we urge this Court to allow the appeal.

Respondent’s Oral Adoption of Brief of Argument

My Lords, we have a notice of preliminary objection filed on the 18^th of February 2023. We argued the preliminary objection at pages 2 to 8 of the Respondent’s brief of argument.

Consequent upon our arguments in the preliminary objection, we urge this Court to dismiss the Appellant’s appeal in its entirety.

In response to the Appellant’s substantive appeal and issues, we canvassed arguments at pages 9 to 14 of our Respondent’s brief. We adopt our arguments contained in the said brief filed on the ___________. We urge this Court to dismiss the appeal of the Appellant and uphold the judgment of the lower Court.

Additional Resources

PRAGMATIC PRINCIPLES OF BRIEF WRITING IN APPELLATE COURTS IN NIGERIA

Introduction This article will not and does not address the mechanics and intricacies of preparing briefs of argument which is actually very different from preparing a final written address. For an exposition on how to write briefs of argument, this piece on Nigerian guru website is most apposite. Also, a number of other reading resources are mentioned at the end

Law Report

Alhaji J. A. Odutola & Anor v Papersack Ltd

fredericknkobowo

May 28, 2023

In The Supreme Court of Nigeria
On Friday, the 15th day of December 2006
S.C. 280/2003

Before Their Lordships
Sylvester Umaru Onu …… Justice, Supreme Court
Niki Tobi …… Justice, Supreme Court
Dahiru Musdapher …… Justice, Supreme Court
Aloma Mariam Mukhtar …… Justice, Supreme Court
Walter Samuel Nkanu Onnoghen …… Justice, Supreme Court

Between

Alhaji J. A. Odutola ————————————————— Appellants
J. A. Odutola Property Dev. Ind. Co Ltd …….

And

Papersack Nigeria Limited ——————————————– Respondent

Judgement of the Court

Delivered by Niki Tobi. JSC

The res in this litigation is 44, Eric Moore Road, Iganmu Industrial Estate in Lagos State. The 1st plaintiff, now the 1st appellant, is the original owner of the property. He is the founder and principal shareholder of the 2nd plaintiff, now the 2nd appellant. The 2nd appellant is the assignee of the unexpired term and interest in the property with effect from 13th December, 1991. The 1st appellant is the Managing Director of the 2nd appellant. The case of the appellants is that Thoresen and Co. (Nig.) Ltd. rented the property and not Papersack Nigeria Limited. Although the tenancy expired in 1980, respondent still occupied the property. They paid rent to the 1st appellant, though not regularly. The 1st appellant issued receipts for payments made to the respondent. Following the failure on the part of the respondent to pay the rent, the appellants filed the action. They claimed possession, outstanding rent and mesne profit. The respondent made a counter-claim. The learned trial Judge gave judgment for the appellants as follows:

“1. The defendant shall give up possession of the warehouse and office premises situate at No 44, Eric Moore Road, Iganmu Industrial Estate, Lagos forthwith and shall pay mesne profit at the rate of N808,861.64 (Eight hundred and eight thousand, eight hundred and sixty-one naira, sixty-four kobo) from the 1st day of June, 1994 until possession is given up.

2. For the sum of N2,975,143.23 (Two million, nine hundred and seventy-five thousand, one hundred and forty three naira, twenty-three kobo) with interest at the rate of 21 % per annum from the 1st day of June 1989 to the 31st day of May, 1994 being the amount owed by the defendant for the use and occupation of the plaintiffs warehouse and office premises at No 44 Eric Moore Road, Iganmu Industrial Estate, Lagos State.

On appeal to the Court of Appeal, the court allowed the appeal. The judgment of the High Court was set aside. The court made the following orders:

1. The arrears of rent of N68,419.95 for the period of 1977- 1982 is set aside.

2. The appellant shall pay rent of N200,000.00 for the period of 1st June 1984 to 31st May, 1985.

3. The rent from 1989 to 1994 shall be at the rate of N20,000.00 per annum as there was no proper increase of rent proved by the respondent.

4. The total arrears of rent due as at 31st May, 1994 is the sum of N1,000,000.00 (One million naira only).

5. The order for payment of mesne profit is set aside.”

Dissatisfied, the appellants have come to the Supreme Court. Briefs were filed and duly exchanged. The appellants formulated four issues for determination as follows:

Whether the learned Justices of the lower court were not wrong when they held that a yearly tenancy agreement existed between the appellants and the respondent.
Whether the learned Justices of the lower court were not wrong when they held that the notices given to the respondent to give up possession of the premises were not valid.
Whether the learned Justices of the lower court were not wrong when they held that evidence of issuance of receipt in the name of the 2nd appellant to the respondent in lieu of the deed of assignment could not by any means amount to proof of assignment of the property to the 2nd appellant.
Whether the learned Justices of the lower court were not wrong in holding that the appellants were not entitled to mesne profit on the ground that no valid notice to quit was issued when there was a continuous use and occupation of the premises by the respondent without the payment of rents.”

The respondent also formulated four issues for determination. I will not reproduce them here as they are substantially the same as those of the appellants. At the hearing of the appeal, Professor S. A. Adesanya, learned Senior Advocate of Nigeria, for the appellants, withdrew issue No 3 and it was accordingly struck out. That, in my view, is good judgment.

Taking issue No 1, learned Senior Advocate submitted that the evidence before the trial court established that the tenancy relationship between the parties was a tenancy at will. He relied on the evidence of the 1st appellant. He submitted on the evidence of the respondent that the respondent which originally came into occupation as an intruder or trespasser became a tenant at will of the 1st appellant after expiration of the extension of the term to 31/12/82 as contained in exhibit P2.

Relying on the case of Pan Asian African Co. Ltd. v. National Insurance Corporation (Nig.) Ltd. (1982) All NLR (Reprint) 229, Learned Senior Advocate submitted that holding over with the consent of the landlord made the respondent a tenant at will. He referred to Law of Real Property by Megary and Wade (4th edition) at page 638 and the cases of Howard v. Shaw (1841) 8M and M and W118, and Wheeler v. Mercer (1957) AC 416 at 425. On the strength of exhibit D9, learned Senior Advocate argued that there was no agreement that could convert the tenancy at will relationship between the parties to a yearly tenancy. He disagreed with the position taken by the Court of Appeal that “a new yearly tenancy was entered into with the anniversary year commencing from 1st June, 1982 to 31st May of the following year and each year, at an increased rent of N200,000.00 per annum in respect of the demised
premises.”

Citing Okechukwu v. Onuorah (2001) FWLR 208; (2000) 15 NWLR (Pt.691) 597; and Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt.184) 157, learned Senior Advocate enumerated the requirements of a valid lease. Learned Senior Advocate submitted on issue No 2 that the notices given to the respondent to give up possession of the premises were valid and duly terminated the respondent’s tenancy. He contended that although the respondent was given six months’ notice, it was entitled to notice of one week as a tenant at will. Counsel cited Bosah v. Oji (2002) FWLR (Pt.99) 1185; (2002) 6 NWLR (Pt.762) 137; Harvey v. Pratt (1965) 2 All ER 786 at 787; Marshall v. Berridge (1881- 85) All ER Rep. 908 at 912; Nlewedim v. Uduma (1995) 6 NWLR (Pt.402) 383 at 396; and Lakasi v. Dabian (1957) NRNLR 12
on the essentials of a valid lease. He urged the court to hold that the notices issued are valid, though surplus in relation to period to vacate.

On issue No 4, learned Senior Advocate submitted that as the respondent’s tenancy was validly determined, the appellants are entitled to mesne profit and arrears of rent. He submitted that the claim of the appellant for the period of 1989 – 1992 is for the amount owed by the respondent as consideration for the use and occupation of the appellants’ property for the period. To learned Senior Advocate, a claim for the rent as made by the appellants is for the consideration and the use and occupation which is different from mesne profit. What the appellants are claiming is a liquidated rent and is operative
during the subsistence of the tenancy. He cited Howard v. Shaw (1841) 8 M and W U8; Omotosho v. Oloriegbe (1988) 4 NWLR (Pt.87) 225; Osawaru v. Ezeiruka (1978) 6 and 7 SC 135; N.C.H.C. Ltd. v. Owoyele (1988) 4 NWLR (Pt.90) 588; and Ayinke v. Lawal (1994) 7 NWLR (Pt.356) 263.
Dealing with the issue of mesne profit, learned Senior Advocate submitted that the appellants are not bound to use the rent payable during the tenancy as a yardstick in the determination of amount payable as mesne profit, but on what is the actual value of the premises at the time when the tenancy expires. He cited once again Ayinke v. Lawal (supra) and urged the court to allow the appeal.

Learned Senior Advocate for the respondent, Mr. T. E. Williams, submitted on issue No 1 that the evidence on record clearly justify the conclusion of the Court of Appeal that it was a yearly tenancy. He relied on the evidence of 1st appellant, exhibit P3 and exhibit P6. He also called in aid the evidence of DW1. Assuming without conceding that the respondent was a tenant at will at some point in time, the parties converted it to a yearly tenancy in the course of time. This is because from 1st June, 1982, the 1st appellant had demanded rent in advance from the respondent who paid same annually. Counsel cited Pan Asia African Co. Ltd. v. National Insurance Corporation Nig. Ltd. (1982) All NLR (Reprint) 229. Counsel claimed that exhibit D9 clearly showed that the parties had at least agreed orally to a yearly tenancy in 1985 at the annual rent of N200,000.00. He also relied on the notice of six months as another reason for a case of yearly tenancy.

On Issue No 2, learned Senior Advocate contended that notice to quit to be valid and effective to terminate a tenancy must expire on the anniversary of the tenancy and any notice to quit which purports to terminate the tenancy before the expiration of the current term or in the middle of a current term is invalid. He cited African Petroleum Limited v. Owodunni (1991) 8 NWLR (Pt.210) 391 at 415.

On Issue No 4, Learned Senior Advocate submitted that a claim for mesne profit cannot be sustained as the tenancy had not been determined and still subsists. As there was no termination of the tenancy, there was no holding over, to justify a claim of mesne profits. He cited Ayinka v. Lawal (1994) 7 NWLR (Pt.356) 265. He urged the court to dismiss the appeal.

A tenancy at will, which is held by a tenant at will, generally conveys a mutual wish or intention on the part of the tenant and the landlord in the occupation of the estate. There is general understanding that the estate may be legally terminated at any time. A tenancy at will is built into the mutual understanding that both the tenant and the landlord can terminate the tenancy when any of them likes or at any time convenient to any of them. In a tenancy at will, the lessee (the tenant) is the tenant at will because the lessor (the landlord) can send him packing at any time the lessor pleases. In other words, the tenant occupies the estate at the pleasure or happiness of the landlord. This is however subject to proper notice emanating from the landlord.

Littleton succinctly describes who is a tenant at will in a medieval language as follows:
“Tenant at will is where lands or tenements are let by one man to another, to have and to hold to him at the will of the lessor, by force of which lease the lessee is in possession. In this case the lessee is called tenant at will, because he hath no certain or sure estate, for the lessor may put him out at what time it pleaseth him.” See Litt. s. 68.

In the case of Wheeler v. Mercer (1956) 3 All ER 631, Lord Simonds said at page 634:
“A tenancy at will though called a tenancy is unlike any other tenancy except a tenancy at sufferance to which it is next of kin. It has been properly described as a personal relation between the landlord and his tenant; it is determined by the death of either of them or by one of a variety of acts, even by an involuntary alienation, which would not affect the subsistence of any other tenancy.”
It is clear from Wheeler v. Mercer (supra) that although the lease may be made to be determinable at the will of the landlord only, it is also determinable at the instance of the tenant. This is a fair position in the law of property. After all, a landlord cannot foist on a tenant a tenancy which is insensitive, inimical or hostile to the tenantry needs or interests of the tenant.

In Pan Asian African Co. Ltd. v. National Insurance Corporation (Nig.) Ltd. (1982) All NLR 229, this court said at page 243:
“A tenancy at will arises whenever a tenant with the consent of owner occupies land as tenant (and not merely as servant or agent) on terms that either party may determine the tenancy at any time. This kind of tenancy may be created expressly [e.g. Mansfield and Sons Ltd. v. Botchin (1970) 2 QB 612] or by implication, common examples are where a tenant whose lease has expired holds over with landlord’s permission without having yet paid rent on a period basis (see e.g. Meye v. Electric Transmission Ltd. (1942) Ch 290).”

It is the case of the appellants that it was a tenancy at will. It is the case of the respondent that it was a yearly tenancy. While the learned trial Judge agreed with the appellants as plaintiffs, the Court of Appeal agreed with the respondent as defendant. Who is correct or who is right?

The learned trial Judge took time to examine the issue. I will quote him in extenso at pages 251-252 of the record:

“The defendant then continued in occupation of the warehouse as a trespasser and as per 1st plaintiff’s tabulation exhibit P3, the defendant paid rent to the 1st plaintiff. The acceptance of rent from the defendant was not per se evidence of any new tenancy. The court will have to determine whether in the circumstances of this case, a new tenancy was created between the parties. See Udih v. Izedonmwen (1990) 2 NWLR, (Pt.132) 357, Ratio 8. The 1st plaintiff solicitors forwarded a lease agreement to the defendant which if it had been approved or executed by the defendant would have created a new tenancy between the parties, rather the defendant by its letter of 18/9/85 exhibit D9 raised a six-point comment on the lease agreement and requested the 1st plaintiff’s solicitor to amend the draft lease accordingly. It follows that no new written yearly tenancy was created between the parties. An oral yearly tenancy agreement could not have been created by the parties in May 1982 as testified by the 1st DW in view of the late Chief Aboderin’s letter dated 24/4/82 pleading for an extension of time till 31/12/82 to move out of the warehouse. The defendant thereafter remained a Tenant-at-will paying rent. I find as a fact and I so hold that no new yearly tenancy was entered into by the parties from 1st June, 1982 to 31st May, 1983 and from year to year but a tenancy at will from 1/6/80 when Thoresen & Co. Ltd. ceased to be a tenant of the warehouse.”

The Court of Appeal did not agree with the above conclusion of the learned trial Judge. Relying on the evidence of 1st appellant and the six months’ notice to quit, the Court of Appeal said at page 449 of the record:

“This admission supported the case of the appellant that it was a yearly tenant and it is reinforced by the fact that the respondent gave the appellant six months’ notice to quit. There was no doubt that the relationship between the appellant and 1st respondent as understood by both parties was a yearly tenancy. I therefore agree with the appellant that the trial court was wrong in holding that the appellant was a tenant at will.”

And so the two courts took diametrically opposite views. What is the evidence before the court? I think I can start with exhibit P1 from Thoresen and Co. (Nig.) Ltd. to Messrs Olugbajo Sonoiki and Associate, the Estate Agent of the appellants at the material time. It reads:

“Dear Sirs
Alhaji J. A. Odutola: Plot 44, Iganmu Industrial Estate
We thank you for your letter dated 18th November, 1976. We should inform you that we have already been granted a lease for five years terminating during 1980. So far, we have paid the rent for the first two years and to the best of our knowledge the rent for the remaining three years is payable annually in advance.
Yours faithfully,
for: Thoresen & Co. (Nig) Limited
(SGD)???
L.O. Lawal
Controller, Finance/Admin.”

Exhibit P1 is the hub of the transaction as it affects the content of yearly tenancy. It is the alpha and omega in the sense that it begins and ends the content of yearly tenancy in the transaction. It says it all. The lease was for a fixed period of five years. It was to terminate “during 1980”. Rent was paid for the first two years. Rent for the remaining three years was payable annually in advance. That is the language of exhibit P1. Nobody can quarrel with the position in exhibit P1 because it is clear, very clear indeed. But what happened thereafter is the cause of the furore in this matter.

The appellants touched exhibit P1 in their brief. This is what they said at page 3 of the brief:
“Evidence led at the trial revealed that the original tenancy was between 1st appellant and Thoresen and Co. (Nig.) Ltd. By letter dated 6/12/76 written by Thoresen and Co. (Nig.) Ltd to the 1st appellant and admitted as exhibit P1, the tenancy of Thoresen and Co. (Nig.) Ltd. would terminate in 1980.”

The above is all that the brief made out of or from the exhibit. I expected the brief to build on the exhibit because it dealt very clearly with the origin of the transaction. And origins of transactions are, in most cases, important as they tell their history. And history supplements the present and the future. And so, I go to the origin of the transaction. I think our law of procedure allows me to do so. Yes, it does. After all, I can make use of any exhibit in the trial court. I am not moving out of the evidence since exhibit P1 is evidence before the court. Let me still mention one thing and it is that the respondent did not mention the exhibit, not even in a line. It skipped it. Although it is also an admission which clearly qualifies as one
against interest, the respondent understandably did not mention it, but took other evidence apparently in similar boat of admission against interest. The evidence of the 1st appellant is one. Exhibit 3 and 6 are others. I will return to them in this judgment.

What happened after exhibit P1? Putting it in another language of question: What happened after 31st May, 1980 to be precise?

The appellants mentioned what happened at page 3 of their brief and it is that the respondent, without the knowledge and consent of the 1st appellant, moved into possession of the premises. That is the evidence before the court.
The respondent did not deny it. And why should that be the situation? The respondent did its own thing in its own way. The respondent helped itself outside the law. That is not an issue before the court. I will therefore not say one word on it.

The Learned trial Judge captured the trend lucidly when he narrated at page 250 of the record:
“The plaintiffs case was that after the expiration of the fixed term of Thoresen and Co. (Nig.) Ltd. in 1980, i.e. 31/5/80, the defendant took possession of the warehouse without 1st plaintiff’s consent but upon the late Chief Aboderin’s letter of 24/4/82 asking for time to pack out, the 1st appellant agreed that the defendant remain in the premises till 31/12/82. The respondent did not move out of the warehouse on 31/12/82 and remained there until 1985 when there were moves by the 1st plaintiff and the defendant to create a new tenancy which did not
materialise.”

The letter of 24th April, 1982 (exhibit P2) written by late Chief Aboderin, which the learned trial Judge mentioned above, is a very comprehensive letter touching on a number of things, some important and others not important. Of importance to this appeal are paragraph 1 and part of paragraph 4. The paragraphs read:
“1. No doubt your solicitors would have contacted you in respect of the notice given to us to vacate your
premises. We have already informed them to appeal to you to let us stay till December, 1981 when we hope to move out of the premises.
…………………………………..

We have started moving the old machinery from the jute bag factory and as soon as this is completed, we will start renovation, hence we are appealing to you to let us stay here for the next six months and we will definitely vacate there on or about December, 1982.”

Such was the pathetic letter of appeal for understanding and leniency. I should mention in passing that exhibit P2 was written in the name of Paper and Allied Producing Company Limited, the new name replacing Thoresen and Co. (Nig.) Limited.

Came the promised December 1982 in exhibit P2, the premises was still occupied; this time by the respondent by way of a unilateral act. It remained in the premises until 1985, in the words of the learned trial Judge, “when there were moves by the 1st plaintiff and the defendant to create a new tenancy which did not materialise.”

I think this is a proper place to take the evidence of oral agreement by DW1. He said in evidence in-chief at page 186 of the record.
“In 1982, we entered into an oral agreement with the landlord to let the premises yearly from 1st June to 31st May at an annual rent of N200,000.00.”

Can this evidence pass for its content of oral agreement of a yearly tenancy to vitiate the termination of the lease in 1980?
Can the bare ipse dixit of a witness of the existence of oral evidence turn around in his favour in the face of clear documentary evidence to the contrary? I have a few more questions to ask but I can stop here.

I expected DW1 to go a bit deeper in the evidence of oral agreement if the respondent really had such evidence. In this regard, evidence of where and when the oral agreement was made ought to have been led. Similarly, there ought to have been evidence of who said what and a clear statement that the oral agreement vitiated or updated the lease.

While oral agreement has the legal capacity to re-order or change the contents of an earlier written agreement, to satisfy the basic requirements of an agreement, the party alleging such agreement must prove it. See sections 135, 136 and 139 of the Evidence Act. See also Broadline Ent. Ltd. v. Monterey Maritime Corp. (1995) 9 NWLR (Pt.417) 1; Chime v. Chime (1995) 6 NWLR (Pt.404) 734; Usman v. Ram (2001) 8 NWLR (Pt.715) 449; Attorney-General of Lagos State v. Purification Tech. (Nig.) Ltd. (2003) 16 NWLR (Pt.845) 1; Archibong v. Ita (2004) 2 NWLR (Pt.858) 590.

It is the generally accepted practice that tenancy agreement is made in writing. In order to play safe, I do not want to say that it is invariably made in writing; but I can say that it is mostly made in writing. Accordingly, where a party alleges the existence of an oral agreement, which is a unique method and procedure, he must give credible evidence as to the modalities of such agreement. In other words, a party alleging an oral agreement is duty bound to prove such an agreement to the hilt. And what is more, a lease is an exact legal transaction affecting an estate and the law requires some basic requirements.
They are (1) The words of demise. (2) The agreement must be complete. (3) The lessor and the lessee must be clearly identified. (4) The premises and dimensions of the property to be leased must be stated clearly. (5) The commencement and duration of the term of the lease must also be clearly stated. See Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt.184) 157. In Nlewedim v. Uduma (1995) 6 NWLR (Pt.402) 383, this court held that a lease to be valid and enforceable, must contain the following (1) The parties concerned. (2) The property involved. (3) The term of years. (4) The rent payable. (5) The commencement date. (6) The term as to covenants and (7) The mode of its determination.

Did the so-called oral agreement comply with or satisfy the above requirements or ingredients of a valid lease? In the absence of any evidence to that effect, this court cannot speculate or conjecture as to the contents of the so-called oral agreement. The learned trial Judge was never moved by the evidence of oral agreement. I am not moved either. The Court of Appeal was silent on that aspect.

Mr. Williams submitted that exhibit D9 “showed that the parties had at least agreed orally to a yearly tenancy in 1985.”
With the greatest respect, there is no such thing in exhibit D9. Exhibit D9 merely commented on the Draft Lease Agreement sent to the respondent by the film of Ayoola and Company, Solicitors.
As it is, the respondent has waved to this court, with all confidence, a supposed oral agreement which the appellants have denied. Unfortunately, this court cannot identify such an agreement, not even the shadow of it. I am tempted to come to the conclusion that the story of the oral agreement is a fabrication. How can the reactions of the respondent to exhibit D9, the lease, metamorphose to an oral agreement, reactions which the respondent asked to be incorporated into the agreement? In sum, the respondent did not prove the so-called oral agreement. And in view of the fact that it so alleged, the burden of proof was on it.

Let me take the issue of new tenancy here. An act of a new tenancy is conscious and specific one which must be a subject of bilateral conduct on the part of the landlord and tenant. As a matter of law, the parties must clearly and unequivocally express their willingness to enter into the new tenancy at the termination of the old one. As a specific act emanating from the landlord and the tenant, it cannot be a subject of guess or speculation. An agreement or contract is a bilateral affair which needs the ad idem of the parties. Therefore where parties are not ad idem, the court will find as a matter of law that an agreement or contract was not duly made between the parties. In the case of Chief Olowofoyeku v. The Attorney-General of Oyo State (1990) 2 NWLR (Pt.132) 369, cited by learned Senior Advocate for the appellants, the Court of Appeal correctly held that where an agreement is intended to be made by several persons jointly, if any of those persons failed to enter into the agreement, there is no contract, and liability is incurred by such of them as have entered into the agreement.

And that takes me to the issue of admission by the appellants. The Court of Appeal zeroed in on that. Let me reproduce the ipsissima verba of the evidence of the 1st appellant which the Court of Appeal relied upon. In answer to cross-examination, 1st appellant said:
“As far as Blocks B and C are concerned, Papersack succeeded Thoresen as tenant. The defendants are one year tenant. The N200,000.00 per annum is not the current rent. I did not negotiate revision of rent.”

Relying on the above evidence, the Court of Appeal concluded at page 449 of the record and I quote it the second time at the expense of prolixity:
“The admission supported the case of the appellant that it was a yearly tenant and it is reinforced by the fact that the respondent gave the appellant six months’ notice. There was no doubt that the relationship between the appellant and 1st respondent as understood by both parties was a yearly tenancy. I therefore agree with the appellant that the trial court was wrong in holding that the appellant was a tenant at will.”

The most important and poignant word for my purpose is “understood”. Parties to an agreement may mutually but wrongly come to an understanding as to the legal content of it. That notwithstanding, a court of law can only interpret the agreement strictly in its legal content and arrive at a conclusion on the law and the law alone in respect of it. A court of law cannot construe the agreement to convey the meaning “as understood” by the parties, if it is different from the real legal meaning of the agreement.

While there are instances where the principles of equity may assist a party wronged by a strict application
of the construction of the agreement, in the application of the doctrine of estoppel, this is not one of such cases.
I realise that the so-called admissions in exhibit P3, P6 and the evidence of 1st appellant under cross-examination did not reflect the true legal position of the matter in respect of the status of the tenancy. There was a clear mistaken belief on the part of the parties as to the true legal position and this court cannot deviate from the position of the law merely because there are admissions: admissions which are not borne out in law. After all, this is a court of law and must therefore uphold the law as its clientele.

An admission against interest, in order to be valid in favour of the adverse party, must not only vindicate or reflect the material evidence before the court; it must also vindicate and reflect the legal position. Where an admission against interest does not vindicate or reflect the legal position, it will be regarded for all intents and purposes as superfluous. And a court of law is entitled not to assign any probative value to it.

Exhibit P1 which I reproduced earlier is the mother of all the exhibits. It started the events and told a story of the termination of the yearly tenancy in 1980. This was in the letter sent by Thoresen and Co. (Nig.) Ltd. Although things changed when the respondent came into the tenancy, they did not change in favour of the respondent to the extent of a continuing yearly tenancy.

Mr. Williams submitted, without conceding, that at some point in time the respondent could have been tenant at will but in the course of time the parties convened it to a yearly tenancy. This is because from 1st June, 1982, the appellants had demanded rent in advance from the respondent who had paid same annually. With respect, I am not with him, the evidence show that the parties started with a yearly tenancy which finally became a tenancy at will by operation of law. While I agree that a tenancy at will can be convened to a yearly tenancy and vice-versa, the position in this case is that it is the yearly tenancy that was converted to a tenancy at will. And here, I hold that when the yearly tenancy ended in 1980, the
tenancy at will commenced and the “holding over” started immediately thereafter. In Pan Asian African Co. Ltd. v. National Insurance Corporation (Nig.) Ltd. (1982) All NLR 229, this court held that holding over with consent of the landlord makes the tenant, a tenant at will.

Let me take the issue of notice. The Court of Appeal, in coming to the conclusion that it was a yearly tenancy, held that the notice to quit given to the appellant which did not end on the 31st of May in the year was invalid. As I have come to the conclusion that the tenancy was at will, there is really no need to take this aspect further. But I think I can make the point clearer by taking section 15 (1)(a) of the Rent Control and Recovery of Residential Premises Law, Cap. 167, Laws of Lagos Stare. The subsection provides:
“Where there is no express stipulation as to the notice to be given by either party to determine the tenancy the following periods of time shall be given:
(a) in the case of a tenancy at will or a weekly tenancy, a week’s notice.”

In exhibit P6, the solicitors of the 1st appellant gave the respondent seven days’ notice to quit. The notice was given on 1st February 1993. The last paragraph of the exhibit reads:
“We shall on the 10th day of February, 1993, apply to the court for a summons to eject any person therefrom.”
I do not think I should take the issue further. The notice, exhibit P6, is valid.
I think this is a convenient place to take the issue of six months for whatever it is worth. As indicated above, the Court of Appeal saw the six months’ notice as an admission on the part of the appellants of the existence of a yearly tenancy. With respect, I do not agree with the court because it is not consistent with logic.

I do not think I have made myself clear. Let me do so by resorting to a market place example. If A is owing B N10.00 but at the time of payment, mistakenly pays N12.00, can it be said with any seriousness that A owed B N12.00 instead of N10.00 that the agreement clearly provides? The court will regard the extra N2.00 as a “gift” on the premise of gratis and not part of the bargain. I think B should smile home with his N2.00 “gift” like a winner of lottery and not make a contractual matter out of it. I think I have made myself clear.

And that takes me to the last issue on mesne profit and arrears of rent. The expression “mesne profits” is used to describe the sum due to a landlord from the time his tenant ceases to hold the premises as tenant to the time such tenant gives up possession. See Debs v. Cenico Nigeria Ltd. (1986) 3 NWLR (Pt.32) 846. Mesne profits are the rents and profits which a trespasser has, or might have received or made during his occupation of the premises, and which therefore he must pay over to the true owner as compensation for the tort which he has committed. See African Petroleum Ltd. v. Owodunni (1991) 8
NWLR (Pt.210) 391. Mesne profits mean intermediate profits, id est profits, accruing between two points of time, that is between the date when the tenant ceases to hold the premises as a tenant and the date when he gives up possession. See Alhaji Ayinke v. Alhaji Lawal (1994) 7 NWLR (Pt.356) 253.

The learned trial Judge ordered the payment of mesne profits at the rate of N808,861.64 from the 1st day of June, 1994 until possession is given up. The Court of Appeal set aside the award of mesne profits on the ground that the tenancy of the respondent was not properly determined.

In paragraph 22(c) of the further amended statement of claim, the appellant claimed as follows:
“Mesne profit at the rate of N808,861.64 per annum until possession is given up.”
In his evidence-in-chief, 1st appellant said at page 130 of the record:
“The last term on exhibit P3 is the rent due up to 1991 which is N994,416.75. The rent due for 1992 is N808,861.64 1992/93 the same amount.”

In his judgment at page 271, the learned trial Judge made the following order:
“1. The defendant shall give up possession of the warehouse and office premises situate at No 44, Eric Moore Road, Iganmu Industrial Estate, Lagos State forthwith and shall pay mesne profit at the rate of N808,861.64 from the 1st day of June, 1994 until possession is given up.”

The Court of Appeal set aside the award of mesne profits on the only ground that the notice to quit was not valid and therefore did not properly determine the tenancy of the respondent. Contrary to that, I have held that the notice to quit was valid and therefore properly determined the tenancy of the respondent. In the light of this and from the totality of the claim and the evidence before the court, I set aside the order of the Court of Appeal in respect of the mesne profit and restore that of the trial court.

In sum, the appeal is allowed and the judgment of the Court of Appeal is set aside. I affirm the judgment of the trial Judge. I award N10,000.00 against the respondent in favour of the appellants.

Judgement delivered by Sylvester Umaru Onu. JSC

This is an appeal against the judgment of the Court of Appeal, holden in Lagos in Appeal No CA/L/144/2001 delivered on the 1st day of July, 2003. That court had allowed the appeal against the judgment of the Lagos State High Court delivered by Adeyinka, J. in suit No LD/2209/93 on 22nd day of May, 1998.

The appellants as plaintiffs had at the High Court, claimed the following reliefs in paragraph 22 of the further amended statement of claim:
“22. Whereof, the plaintiffs claim against the defendant as follows:
(a) Possession of the warehouse and office premises situate at Eric Moore Road, Iganmu Industrial Estate,
Lagos State.
(b) The sum of N3,005,140.95 (three million, five thousand, one hundred and forty naira, ninety five
kobo) being outstanding money owed by the defendant for the use and occupation of the plaintiffs’
property plus interest at 21 % per annum until the debt is liquidated.
(c) Mesne profit at the rate of N808,861.64 per annum until possession is given up.”

The facts of the case have been exhaustively set out in the leading judgment of my learned brother, Tobi, J.S.C. and I do not deem it necessary to repeat them except where the need arises, to emphasize the point made.

Evidence led showed that the original tenant of the 1st appellant was Thoresen & Co. (Nig.) Ltd whose tenancy was to terminate on 31/5/80 by virtue of letter dated 6/12/76 admitted in evidence as exhibit P1. However, by another letter dated 24th April, 1982, from Chief Aboderin who is stated to be the owner of both Thoresen & Co. (Nig.) Ltd and the respondent, the said Chief Aboderin pleaded with the 1st appellant that time for the said Thoresen & Co. (Nig.) Ltd to vacate the property be extended to 31/12/82 and the said request was acceded to. The letter in question was received in evidence as
exhibit P2.

It then transpired that at the expiration of the original term of Thoresen & Co. (Nig.) Ltd in 1980, the respondent without the knowledge, consent or agreement of the 1st appellant took possession of the premises which was a warehouse on 31/12/82 being the terminal date of the extended period of tenancy. In 1985, an attempt by the 1st appellant and the respondent to create a tenancy failed. In the meantime, the respondent was initially paying rent for the use and occupation of the property.

It was appellant’s contention that the respondent having moved into the property without an agreement and by that token became a tenant at will of the 1st appellant particularly, after the expiration of the extended term to 31/12/82. Such a tenancy in law is determined by seven days’ notice of intention to recover possession.

While the High Court held the view that the appellants were right, the court below (Court of Appeal) held otherwise since the respondent was now paying rent on yearly basis. Hence, it became a yearly tenancy determinable at six months’ notice of intention to recover possession, thereby rendering seven days’ notice improper.

I hold the view that from the expiration of Thoresen & Co. (Nig) Ltd’s extended tenancy, the respondent became a trespasser on the property. However, from the time the respondent started to pay rent which was on yearly basis and in advance, a yearly tenancy by conduct of the parties may have been created and continued in existence until when the respondent stopped paying the rent as and when due or failed to secure a tenancy agreement in respect of the property.

At page 130 of the record appear the following facts, which have neither been contested nor disputed by the respondent:
“2nd PW The last item on exhibit P3 is the rent due up to 1991 which is N994,418.75. The rent due for 1992 is N808,861.64, 1992/93 the same 1994/95 and 1995/96 N1,982,365.26 and 1996 to May, 1997
N1,802,356.26. All these rents have not been paid by the defendant.”

I am of the firm view that from the moment a year’s rent became due and payable by the respondent but remained unpaid, the yearly tenancy, if any created by the conduct of the parties thereto came to an end by effluxion of time and the respondent thereupon became a tenant at will to the 1st appellant by continuing or remaining in possession of the property.

In other words, the respondent at that stage is said to be holding over the property and in that capacity, became a tenant at will. See the case of Howard v. Shaw (1841) 8M & M W118; and Wheeler v. Mercer (1957) AC 416 at 425 which elucidate on the principles of holding over, how a tenancy at will arises as well as the requisite period of notice to quit vis-a-vis the provisions of section 15(1) of the Rent Control and Recovery of Premises Law, Cap. 167, Laws of Lagos State, by whose provisions the respondent was entitled to no more than a week’s notice.

It is for these and the fuller reasons articulated and proffered by my learned brother, Tobi, J.S.C that I too allow the appeal. I abide by all the consequential orders awarded inclusive of those as to costs.

Judgement delivered by Dahiru Musdapher. JSC

I have had the opportunity to read before now, the judgment of my Lord, Tobi, J.S.C with which I entirely agree. For the same reasons canvassed in the aforesaid judgment, which I respectfully adopt as mine, I too, allow the appeal and set aside the judgment of the court below. I restore the decision of the trial court. The appellants are entitled to costs which I assess
at N10,000.00.

Judgement delivered by Aloma Mariam Mukhtar. JSC

I have read in advance the lead judgment delivered by learned brother Niki Tobi, J.S.C. The reliefs sought by the appellants in the High Court of Lagos, as per their further amended statement of claim are as follows:
(a) Possession of the warehouse and office premises situate at Eric Moore Road, Iganmu Industrial Estate,
Lagos State.
(b) The sum of N3,005,140.95 (three million, five thousand, one hundred and forty naira, ninety five
kobo) being outstanding money owed by the defendant for the use and occupation of the plaintiffs’
property plus interest at 21 % per annum until the debt is liquidated.
(c) Mesne profit at the rate of N808,861.64 per annum until possession is given up.”

The respondent/defendant in its statement of defence counterclaimed against the appellants/plaintiffs as follows:
“Whereupon the defendant counter-claims against the plaintiffs in the sum of N1,360,370.00 and N5 million as special and general damages respectively in respect of the defendant’s raw materials, industrial machines and components destroyed as a result of the wrongful activities of the plaintiffs.”

The learned trial Judge after evaluating the evidence before him and giving the addresses of learned counsel the consideration they deserved dismissed the respondent’s counter claim and gave judgment in favour of the plaintiffs as
follows:
“1. The defendant shall give possession of the warehouse and office premises situate at No. 44, Eric Moore Road, Iganmu Industrial Estate, Lagos State Forthwith and shall pay mesne profit at the rate of N808,861.64 (Eight hundred and eight thousand, eight hundred and sixty-one Naira, sixty-four kobo) from the 1st day of June, 1994 until possession is given up.

2. For the sum of N2,975,143.23 (Two million nine hundred and seventy-five thousand, one hundred and forty three Naira, twenty-three kobo) with interest at the rate of 21% per annum from the 1st day of June, 1989 to the 31st day of May, 1994 being the amount owed by the defendant for the use and occupation of the plaintiff’s warehouse and office premises at No. 44, Eric Moore Road, Iganmu Industrial Estate, Lagos State.”

The defendant appealed against the judgment to the Court of Appeal, and the Appeal Court set aside the said judgment as it relates to the termination of the tenancy, but varied the award for arrears of rent made by the trial court.

Dissatisfied by the decision of the Court of Appeal, the plaintiff appealed to this court on four grounds of appeal. Briefs of argument were exchanged by learned counsel for the parties, and these were adopted at the hearing of the appeal.

Four issues for determination were raised in the appellants’ brief of argument, but the third issue in the brief was struck out at the instance of the learned Senior Advocate of Nigeria in the course of his submissions in court.

Four issues for determination were raised in the respondents’ brief of argument. On the nature of the tenancy between the parties, it is clear from the copious evidence adduced that the tenancy in respect of the property in dispute was originally between plaintiffs/appellants and Thoresen & Co. (Nig.) Ltd.

From the printed record of proceedings one can see that the tenancy between the parties to this case became a tenancy at will. These facts are reflected in the following averments in the appellants’ amended statement of Claim.

The plaintiffs aver that the defendant is the present occupier of the warehouse and office premises let to Thoresen & Co. (Nig.) Limited by the plaintiffs. The tenancy of Thoresen and Company Nigeria Limited was determined by effluxion of time in 1980.
The plaintiffs aver that the rent payable for the demised premises for the year 1977 – 1982 was N185,450.00 year.
The plaintiffs aver that the defendant paid the sum of N159,643.72 per year between 1979 – 1982 leaving the balance of N22,806.25 unpaid for each year.
By mutual agreement the defendant’s tenancy (if any) was determined and the defendant was expected to vacate the property on 31st December, 1982.
The defendant did not vacate the premises in December, 1982 and on the personal undertaking of Chief Aboderin, the Chairman of the defendant’s company, it was agreed that the defendant shall continue to pay for the use and occupation of the premises at the prevailing rate in the area until the defendant secures alternative accommodation.

The averments were supported by credible evidence which the learned trial court accepted and found on. The definition of tenancy at will as set out in the Law of Real Property by R.E. Megarry and H.W.R. Wade 4th Edition page 638 is copiously reproduced and dealt with in the case of Pan Asian African Co. Ltd. v. National Insurance Corporation Nig. Ltd. (1982) All NLR 229.

My learned brother has in the lead judgment applied the knowledge impacted by the authors of the Law of Real Property and the decision in the Pan Asian African case to the present appeal. The evidence adduced does not disclose a valid lease between the present parties and this thus further strengthens the appellants’ case that the arrangement between them was that of a tenancy at will, and the notice to quit given to the respondent was a valid one. See Harvey v. Pratt (1965) 2 All NLR 786; and Marshall v. Beridge (1981-85) All ER 908. I hold that the tenancy is a tenancy at will.

I am in complete agreement with the reasoning and conclusion reached in the lead judgment, and also allow the appeal. I abide by the consequential orders made in the lead judgment.

Judgement delivered by Walter Samuel Nkanu Onnoghen. JSC

This is an appeal against the judgment of the Court of Appeal, Holden in Lagos in appeal No CA/L/144/2001 delivered on the 1st day of July, 2003 in which it allowed the appeal against the judgment of the Lagos State High Court delivered by Adeyinka, J. on the 22nd day of May, 1998 in suit No LD/2209/93.

The appellants, who were the plaintiffs at the High Court, claimed the following reliefs in paragraph 22 of the further amended statement of claim:
“22. Whereof, the plaintiffs claim against the defendant as follows:
(a) Possession of the warehouse and office premises situate at Eric Moore Road, Iganmu Industrial Estate,
Lagos State.
(b) The sum of N3,005,140.95 (three million, five thousand, one hundred and forty naira, ninety five
kobo) being outstanding money owed by the defendant for the use and occupation of the plaintiffs’
property plus interest at 21 % per annum until the debt is liquidated.
(c) Mesne profit at the rate of N808,861.64 per annum until possession is given up.”

The facts of the case have been fully stated in the lead judgment of my learned brother Tobi, J.S.C. and as such I do not intend to repeat them here except as may be needed to emphasis the point being made.
There is evidence that the original tenant of the 1st appellant was Thoresen & Co. (Nig.) Ltd whose tenancy was to terminate on 31/5/80 by virtue of a letter dated 6/12/76 admitted in evidence in exhibit P1. However by another letter dated 24/4/82 from Chief Aboderin who is said to be the owner of both Thoresen & Co. (Nig.) Ltd and the respondent the said Chief pleaded with the 1st appellant for extension of time to 31/12/82 for the said Thoresen & Co. (Nig.) Ltd to vacate the property which request was accepted by the said 1st appellant. The letter in question was received in evidence as exhibit P2.

However at the expiration of the original term of Thoresen & Co. (Nig.) Ltd in 1980, the respondent without the knowledge, consent or agreement of the 1st appellant took possession of the premises which was a warehouse. The respondent did not move out of the warehouse on 31/12/82 being the terminal date of the extended period of tenancy. In 1985 there was an abortive move by the 1st appellant and the respondent to create a tenancy. Meanwhile the respondent was initially paying rent for the use and occupation of the property.

It is the case of the appellants that the respondent having moved into the property without an agreement was a tenant at will of the 1st appellant particularly after the expiration of the extended term on 31/12/82, and that such a tenancy is determinable by seven days’ notice of intention to recover possession. The High Court agreed with the appellants but the Court of Appeal did not. The Court of Appeal held that since the respondent was paying rent on yearly basis, there was an implied yearly tenancy which was determinable by six months’ notice of intention to recover possession terminable at the
end of the tenancy and such seven days’ notice was not proper.

I hold the view that from the expiration of the extended tenancy of Thoresen & Co. (Nig.) Ltd, the original tenant of the 1st appellant, the respondent was a trespasser on the property. However from the time the respondent started to pay rent which was on yearly basis and in advance, a yearly tenancy by conduct of the parties may have been created and continued in existence until when the respondent stopped paying the rent as and when due and or failed to secure a tenancy agreement for the property.

At page 130 of the record appear the following facts, which have not been disputed by the respondent:
“2nd PW The last item on exhibit P3 is the rent due up to 1991 which is N994,418.75. The rent due for 1992 is N808,861.64, 1992/93 the same 1994/95 and 1995/96 N1,982,365.26 and 1996 to May, 1997
N1,802,356.26. All these rents have not been paid by the defendant.”

I hold the considered view that from the moment a year’s rent became due and payable by the respondent but remained unpaid, the yearly tenancy, if any, created by the conduct of the parties thereto came to an end by effluxion of time and the respondent thereby became a tenant at will of the 1st appellant by continuing in possession of the property.

In law we describe the respondent at that stage as holding over the property and in that capacity it became a tenant at will. The situation of failure to pay rent continued from 1991 to 1997 yet learned counsel and the Court of Appeal contend that there was a yearly tenancy.

In the case of Pan Asian African Co. Ltd. v. National Insurance Corporation (Nig.) Ltd. (1982) All NLR 229 at 243, this court has this to say:
“Holding over with the consent of the landlord made the respondent tenants at will. This is well settled law. See the Law of Real Property by R.E. Megary and H.W.R. Wade, 4th edition page 638 where the learned authors deal with creation of tenancies at will.

A tenancy at will arises whenever a tenant with the consent of the owner occupies land as tenant (and not merely as servant or agent) on terms that either party may determine the tenancy at any time. This kind of tenancy may be created expressly (e.g. Manfield & Sons Ltd. v. Botchin (1970) 2 QB 612) or by implication, common examples are where a tenant whose lease has expired holds over with landlord’s permission without having yet paid rent on a period basis. (See Meye v. Electric Transmission Ltd. (1942) Ch. 290), where a tenant takes possession under a void lease or person is allowed to occupy a house rent free and for indefinite period and (usually) where a purchaser has been let into possession pending completion. Howard v. Shaw (1841) 8M & M W118, Wheeler v. Mercer (1957) AC 416 at 25. Unless the parties agree that the tenancy shall be rent free or the tenant has some other right to rent-free occupation the landlord is entitled to compensation for the ‘use and occupation’ of the land.”

It is not disputed that a tenancy at will is determinable by seven days’ notice of intention of the landlord to recover possession which was duly complied with in this case. Even if six months’ notice was given, it does not, per se, change the nature and legal character of the tenancy in issue.
I therefore agree with the learned trial Judge at pages 251 – 252 of the record thus:
“The defendant then continued in occupation of the warehouse as a trespasser and as per 1st plaintiff’s Tabulation exhibits P3, the defendant paid rent to the 1st plaintiff. The acceptance of rent from the defendant was not per se evidence of a new tenancy. The court will have to determine whether in the circumstances of this case, a new tenancy was created between the parties see Udih v. Izedunmwem (1990) 2 NWLR (Pt.132) 357.

The 1st plaintiff solicitors forwarded a lease agreement to the defendant which if it had been approved or executed by the defendant would have created a new tenancy between the parties, rather the defendant by its letter of 18/9/85 exhibit D9 raised a six points comments on the lease agreement and requested the 1st plaintiff solicitors to amend the draft lease accordingly. It follows that no new written yearly tenancy was created between the parties. An oral yearly tenancy agreement could not have been created by the parties in May 1982 as testified by the 1st DW in view of the late Chief Aboderin’s letter dated 24/4/82 pleading for an extension of time till 31/12/82 to move out of the warehouse. The defendant thereafter remained a Tenant at-will paying rent.”

On the issue of the requisite period of notice to quit, it is very clear that by the provisions of section 15(1) of the Rent Control and Recovery of Premises Law, Cap. 167, Laws of Lagos State, Cap. 167, the respondent was entitled to nothing more than a week’s notice.

In conclusion, I agree with the conclusion reached by my learned brother Tobi, J.S.C. in the lead judgment that the appeal has merit and should be allowed. I accordingly allow same and abide by the consequential orders contained in the said lead judgment including the order as to costs.

Counsel
Professor S. A. Adesanya, SAN with him N. O. O. Oke, SAN, I.A. Saka, B.A. Aderosin, W. Kasali, K. Yekeen, A.O. Olori-Aje …… For the Appellants

T. E. Williams, SAN, with him; Mohammed Salau, A.A. Kester …… For the Respondent

In The Supreme Court of NigeriaOn Friday, the 15th day of December 2006S.C. 280/2003 Before Their LordshipsSylvester Umaru Onu …… Justice, Supreme CourtNiki Tobi …… Justice, Supreme CourtDahiru Musdapher …… Justice, Supreme CourtAloma Mariam Mukhtar …… Justice, Supreme CourtWalter Samuel Nkanu Onnoghen …… Justice, Supreme Court Between Alhaji J. A. Odutola ————————————————— AppellantsJ. A. Odutola Property Dev. Ind. Co Ltd

Everyday Law

Peter Obi v INEC: What is His Petition all About?

fredericknkobowo

March 29, 2023

The Presidential elections have come and gone. But one thing is certain, the elections held on the 25^th day of February 2023, would mean different things to different Nigerians.

To some it was a sham of an election; the Lord of the rigs played a master card and he is now the ‘President-Select’.

To others, it was a proper election. INEC did its best, the results are in and Nigerians should accept their new President-Elect and move on.

As you would know already; Four frontline candidates contested in the elections. In no particular or preferred order; they were – Alhaji Bola Ahmed Tinubu of the All Progressives Congress (APC), Alhaji Atiku Abubakar of the People’s Democratic Party (PDP), Mr Peter Obi of the Labour Party (LP) and Alhaji Rabiu Kwankwaso of the New Nigeria People’s Party (NNPP).

As the news confirms, INEC concluded the collation and announcement of the election results in the wee hours of 1^st March 2023.

The results as announced by INEC were as follows;

Results of the 2023 Presidential Election in Nigeria

By INEC’s announcement, the candidate of the All Progressives Congress won the elections and he was returned as the President-elect.

The other frontline candidates have expressed their dissatisfaction with the results announced. And they have proceeded to Court (that is the election Petition Tribunal).

Mr. Peter Obi Goes to Court

On the 20^th day of March 2023, Mr Peter Obi’s petition was filed at the tribunal. You can download a full copy of the Petition here.

In this short piece, we’ve decided to give you bit-sized details of what his petition is saying or what it contains.

This is not an analysis of the strengths or merits of the petition. That is for the tribunal to decide. And as Lawyers, we are ethically required not to make comments on matters that are before the Courts (or sub-judice).

So, grab your pop-corn as we commence;

On how many grounds is Mr. Obi challenging the election?

Mr Peter Obi is challenging the election on three main grounds. These grounds are simply the main reasons he wants the Court to rely on to set aside the election.

What are the three grounds for his challenging the election?

Bola Ahmed Tinubu and his running mate; Alhaji Kashim Shettima were not qualified to contest in the election.
Bola Ahmed Tinubu’s election is invalid because a lot of corrupt practices or non-compliance with the Electoral Act 2022[1] happened during the conduct of the elections.
Bola Ahmed Tinubu was not duly elected by the majority of the lawful votes cast at the election

A Few More details on the grounds …

Let’s highlight a few major details in the Petition.

Bola Ahmed Tinubu and His Running Mate; Alhaji Shettima

Ground 1 –Bola Ahmed Tinubu and Alhaji Shettima were not qualified to contest.

On the first ground which is that Bola Ahmed Tinubu and his running mate were not qualified to contest in the election, there a few facts that the petition has alleged and you should know them.

They are –

Bola Ahmed Tinubu nominated Shettima as his running mate when Shettima was still the APC candidate for the Borno Senatorial Seat. This double nomination violates the electoral law[2]. Due to this reason, Peter Obi is asking that their joint ticket should be ruled as invalid. In addition, the votes recorded for Bola Ahmed Tinubu by INEC should be ruled by the Court to be wasted votes and therefore disregarded.
Bola Ahmed Tinubu was at the time of the election not qualified to contest because he was fined for an offence involving dishonesty – narcotics trafficking in the USA in 1993[3].

The central gist of this ground is that BAT and Alhaji Shettima were not qualified to contest and the votes cast for them should be declared invalid by the Court.

Ground 2 – Corrupt Practices and Non-Compliance with the Electoral Act invalidated the election.

On this ground Mr Peter Obi is contesting that;

By the Electoral laws, INEC was to mandatorily use technology for the elections. INEC chose BVAS as the technology for the election. Therefore, the accreditation and authentication of voters was to be done with BVAS. Also, at the conclusion of the election at each polling unit, the Presiding Officer was to electronically transmit the election result in real time. This requirement was mandatory but this was not complied with in many ways during the election.
The results were not fully uploaded on INEC’s portal (iREV) at the time Bola Ahmed Tinubu was declared winner of the election and this gave room for manipulation.
Also, INEC denied his (Mr Peter Obi’s) several requests for copies of the electoral documents and data. INEC also refused to Comply with the Court’s orders allowing Mr Obi to inspect the electoral materials used for the election.
The tribunal should deduct the votes that will be proved as unlawful from BAT’s total number of votes. Also, the tribunal should add back the votes Mr Obi lawfully got from the elections back to his total number of votes.
In 13 states, there were some polling units where the number of votes casted exceeded the number of accredited voters on the BVAS in those states. So there was over-voting in those units.
If these instances of corruption and non-compliance did not happen, he (Mr Obi) would have won the elections.

Ground 3 – Bola Ahmed Tinubu was not duly elected by the majority of lawful votes cast at the election

Under this ground Mr Peter Obi’s petition is alleging the following;

For one to win the Presidential election, he must comply with Sections 133 and 134 of the 1999 Constitution. These Sections stipulate the hurdle the winning candidate in a Presidential election must cross.
Bola Ahmed Tinubu did not cross this hurdle. He did not get at least one quarter of the votes cast at the election in the Federation and FCT Abuja. Therefore, he should not have been declared winner of the elections.
Since Bola Ahmed Tinubu did not cross the constitutional hurdle, there should have been runoff election declared by INEC.

The Court of Appeal Complex, Abuja, Nigeria.

What is Mr Peter Obi asking from the Tribunal (the Court)?

Peter Obi is asking for a number of alternate reliefs from the Court. Making alternate reliefs or prayers is simply telling the Court – ‘if I prove my case, give me this. If you can’t give me this, give me that’. You could call it hedging one’s bet.

Here are Mr Obi’s reliefs –

The Court should declare/rule that Bola Ahmed Tinubu and Alhaji Shettima were never qualified to contest the elections, their votes are consequently wasted votes and after ignoring their wasted votes, Mr Peter Obi satisfied the constitutional requires and therefore won the elections. OR
The Court should declare that Bola Ahmed Tinubu did not get 25% of the votes in FCT, therefore he shouldn’t have been declared winner of the elections OR
The Court should cancel the elections and order the conduct of fresh elections in which Bola Ahmed Tinubu and Alhaji Shettima should not participate. OR
The Court should declare that Bola Ahmed did not get the majority of lawful votes cast in the elections and based on the valid votes cast, Mr Obi won the elections. OR
The Court should declare that the elections was void (that is of no legal effect) because it did not substantially comply with the Electoral law and Constitution. The elections should be cancelled and fresh elections should be conducted.

Curated by Frederick Nkobowo ESQ.

[1] This is the present law that governs the conduct of the elections in Nigeria.

[2] Section 35 of the Electoral Act 2022.

[3] Section 137 of the Constitution determines who is qualified to contest for the office of President of Nigeria

The Presidential elections have come and gone. But one thing is certain, the elections held on the 25th day of February 2023, would mean different things to different Nigerians. To some it was a sham of an election; the Lord of the rigs played a master card and he is now the ‘President-Select’. To others, it was a proper election.

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

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

Learned Scribbles

LAW APPRENCTICESHIP 101: Titbits On Cross Examination

fredericknkobowo

October 18, 2022

So, have you ever been given a file and told to prepare cross examination questions? Let’s even go a step further. Have you ever been asked to cross examine an adverse party’s witness? If yes, what informed your choice of questions? Or did you just go ahead to ask questions because of course, in cross examination the sky is your limit? LOL!!!!

Walk with me as we find out what should be on your mind when you set out to draft cross examination questions or conduct cross examination.

Before you begin to draft questions for purpose of conducting cross examination, you should have a purpose. Yes, you should have a purpose for the cross examination of a witness. Ask yourself: what do I want to achieve with the cross examination of this particular witness? I assume that at the point of asking this question, you would have had the facts of your case at your fingertips.

It is important to have a purpose for your cross examination. That’ll inform your choice of questions. For instance, if your purpose for cross examining a particular witness is to discredit that witness so that the court believes less of his/her testimony, then you’ll do well to ask questions that will get the witness to contradict himself/herself. If your purpose is to put forward the case of your client through the cross examination of the witness on the other side, then you’ll need to ask questions that’ll aid the achievement of that.

By the way, you don’t have to wait for the testimony of your witness to put forward the case of your client. As a defendant, you can start putting forward your client’s case through the Claimant’s witness. How do you do that? It’s simple. By asking the Claimant’s witness relevant questions that support the case of your client. Under cross examination, you can get the witness to confirm salient facts of your case. The trick is to ask questions relevant to your case, and to which you know the answers.

Another point to note: mind how you couch/frame your questions. This is to ensure that you elicit desirable answers.

Take this scenario for instance: A witness in his evidence-in-chief states that he has been making payments into an account for the purpose of repaying a loan facility. Then, he goes on to say that the payments made so far have not reflected in the loan account. He then says that he had requested for the statement of account from the Bank but alleges that the Bank refused to issue same to him.

If I’m to cross examine him on the basis of this testimony, what will my purpose be? Well, my purpose would be to discredit him so that the court doesn’t believe his testimony. I’ll do that by asking him this one question (that’s after I’ve laid the foundation with his testimony) to make him contradict himself. Here’s the question:

Q: Witness, you don’t have access to the loan account.

Now, if the witness answers that he doesn’t have access to the account, he would be lying because he cannot claim not to have access to the account and yet know that the payments made are not reflected in the account. That’ll form your argument in your final written address.

On a final note, I’ll say that cross examination is an art. We weren’t taught this art in Law School. But one can always develop the art. A good place to begin is to seek guidance from experienced litigators.

Written by Queen Charles Ukpo ESQ

Hello there!!! In the previous piece I had said that I’ll return soon with another piece, but I delayed. For that, I offer my apologies and have come with a token of appeasement. I hope it meets the purpose. So, have you ever been given a file and told to prepare cross examination questions? Let’s even go a step further.

Learned Scribbles

God Forbid that a Lawyer knows all the Law

fredericknkobowo

October 18, 2022

I believe God to be all wise. No wonder She necessarily forbids somethings. One abomination in particular stands out for the lawyer – he shouldn’t know all the law. Like I said, God forbids it. Yes, she does. How do I know? Lord Denning the veritable high priest of law said it, who am I to disbelieve him?

But isn’t it almost blasphemous to say that a lawyer shouldn’t know all the law? Think it through; it arguably does sound blasphemous. However, I have only emphasized a part of Lord Denning’s statement. The remainder is – he should know where to find it.

Put both together and the entire statement reads – God forbid that a Lawyer knows all the law, but he should know where to find it.

God’s forbidding as communicated to us by Lord Denning is rather instructive. This writer has found it relevant in many aspects of litigation practice and legal practice in general. Hence this piece.

While prosecuting or defending an action in court, I have oft found out that before concluding on the hopelessness of an intended course of action or argument in any case or even the likelihood of success in a case, it is wise to keep in tune with the face of the law on the subject matter. To put that differently, a periodic review of the facts of a case in the light of the changing face of the law, could make the day of judgment rather euphoric. So, while looking at the case as it progresses to the final address stage, it would be important to keep asking; are judicial outcomes (case law) on similar set of facts changing?

Let me say all you have just read more elaborately;

A recent Court of Appeal or better still a Supreme Court authority that departs from the previous stream of judicial decisions could be a formidable addition to any Lawyer’s available arsenal for a client’s case. And this piece of weaponry could come in the nick of time.

Let me give an example. A while ago, we knew the judgment Debtor to be a meddlesome interloper. The Courts confirmed this. He could only stare during garnishee proceedings. Even if he sneezed, that sound would be inaudible to the Court. Thus, where he filed a motion which the Court called it absurd; U.B.A Plc v Ekanem (2010)

But the Courts have now removed the invisibility cloak from the Judgment Debtor. Now, he can be seen, heard and even do what was previously considered absurd at the Court registry – he can file processes. The law has now chosen to hear his sneezes and agitations during the course of the garnishee proceedings.

We can find yet another example in garnishee proceedings still. Let’s raise the bone of contention as an issue. The issue is – can garnishee proceedings continue even with a pending motion for stay of execution in respect of the same judgment sought to be enforced by the garnishee proceedings? Put differently, should garnishee proceedings continue when a motion for stay of execution is pending? Doesn’t the court lose all vires 0r jurisdiction to continue hearing garnishee proceedings when a motion for stay of execution predates the initiation of the garnishee proceedings?

A stream of judicial authorities maintain that the pendency of a motion for stay of execution automatically delves a suffocating blow to the possibility of garnishee proceedings continuing before the Court. Put differently, a party cannot execute a judgment by way of garnishee proceedings where there is a pending application for stay of execution. The cases of F.I.B Plc v Effiong (2010) 16 NWLR Pt 1218 P 199, Nigerian Breweries Ltd v Dumuje (2016) 8 NWLR (Pt 1515) Pt 1515 P 536 support this position.

There are authorities to the contrary of this position as well. The contrary authorities are; KEDO Plc v Sintilawa (2021) LPELR-56707(CA), I.B.W.A. Ltd v Pavex Int Co Ltd (2000) 7 NWLR (Pt 663) P 105, Purification Tech. (Nig) Ltd v A.G. Lagos State (2004) 9 NWLR (Pt 879) 665.

Moving away from garnishee proceedings, another example comes to mind as well. It is in relation to witness depositions on oath as they are called and widely used in High Courts across the Country. There is the often-innocuous question asked under cross examination in respect of these depositions. Some Judges are known to disallow this particular question for the reason that it does not touch on the live issues before the Court. This is arguably true – though there is a counter argument that bears much weight as well. The question is this – “You signed your witness deposition in your Lawyer’s office?”. The truthful witness may say a damaging “yes” in response.

Simple question. A very simple one in-fact. One might even ask – why bother ask it at all? Buhari v INEC (2008) holds the answer. Relying on Buhari’s case (Supra), the Court of Appeal has held in Aliyu v Bukali (2019) LPELR 46513 CA that such witness depositions that are signed in a Lawyer’s office are incompetent, inadmissible and liable to be expunged by the Court. See also; BUBA & ANOR v. MAHMUD & ANOR (2020) LPELR-51404(CA) and Erokwu & Anor Vs Erokwu (2016) LPELR – 41515 CA on this issue.

May our examples not take us off the point being driven at which is – A recent Court of Appeal or better still a Supreme Court authority that departs from the previous stream of judicial decisions could be a formidable addition to any Lawyer’s available arsenal for a client’s case.

Most times, it is not the bench turning the stream of judicial reasoning and case law in a different direction. It could in fact be a repeal of one law and enactment of another. Or even still, deliberate legislative action that is targeted at tacitly overruling applicable Case Law.

In fact, the gist of most of what I have said is; what you suspect the law to be might in fact not be the position of the law anymore. And if this change in the direction of the law comes from an appellate Court, happy are ye. I am currently unaware of any principle of law to the effect that recently decided cases at higher courts do not apply to ongoing cases at lower Courts where the proceedings in the later where ongoing before the higher court’s decision. So, stare decisis can actually favorably work in the most unlikely of situations and thus, change the litigation strategy or metrics of a case.

In the end, Litigation Lawyers (and indeed all Lawyers) are in a read-and-keep-reading-or-sink-situation.

I end with the words of the Learned Jurist; Niki Tobi JSC in Abubakar v Yar’Adua (2008) 19 NWLR Pt 1120 at Pg 141 “…I must confess that none of the cases cited by learned Senior Advocate in the briefs was known by me when I decided Inakoju. I do not know all the law…it is possible that I am wrong.”

If Niki-Tobi didn’t did it, I didn’t did it.

Nkobowo Frederick LLB

Drafts and Precedents

Sample Draft of Notice of Preliminary Objection in Nigeria

fredericknkobowo

October 6, 2022

Practice Tip – Raising Preliminary Objections While On Appeal:

The Supreme Court has in the case of Oladokun v Olawoyin (2017) All FWLR (Pt.872) 1441 deprecated the mode of raising of objections that touches only a ground (or two) of the grounds of appeal and therefore does not erode or deal with the substratum of the appeal thus:- “A Preliminary Objection can only be taken against the hearing of an appeal and not against one or more grounds of appeal which are capable of disturbing the hearing of the appeal. A Preliminary Objection should be capable, if successfully taken of putting an end to the hearing of the appeal. An objection to qualify as preliminary objection should require serious argument and preliminary objection consideration on a point of law which if decided, one way or the other, is going to be decisive of litigation. In other words, the purpose of preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective which if it succeeds would put an end to the appeal. In the instant case, where the preliminary objection filed by the 1st respondent was filed against some grounds of appeal, the Court of Appeal struck same out”.

SPDC (NIG) LTD v. AMADI & ORS (2011) LPELR-3204(SC)

“Preliminary objections are filed against the hearing of an appeal and so once it succeeds the appeal no longer exists. All too often we see preliminary objections filed against one or more grounds of appeal. Once there are other grounds that can sustain the appeal, a preliminary objection should not be filed. Instead a Notice of Motion seeking to strike out the defective grounds of Appeal should be filed. In this case a Preliminary objection was properly filed, because if it succeeds the appeal comes to an end. See: NEPA v. Ango 2001 15 NWLR pt 737 p 627.” Per OLABODE RHODES-VIVOUR, JSC (Pp 6 – 7 Paras F – B)

In other words, in appellate matters, a preliminary objection is not the appropriate mode to complain about some of the grounds of appeal. Where such a mode is adopted, the preliminary objection will be struck out. Thus, if the situation is such that even if the objections were to succeed, the hearing of the appeal on the remaining grounds would not be disturbed, the procedure to adopt is to file a motion on notice to dispose of the matter before hearing the appeal, but not to come by way of preliminary objection.

Other cases on this point include – OPEYEMI v. STATE (2019) LPELR-48764(SC), Adejumo v. Olawaiye (2014) 12 NWLR 9 (pt 142) 252 at p.279, DAUDU v. FRN (2018) LPELR-43637(SC), KLM ROYAL DUTCH AIRLINES v. ALOMA (2017) LPELR-42588(SC)

See More practice tips in Our Quick Lex Section

Sample Drafts of Notice of Preliminary Objection

We have curated two different formats for drafting a notice of preliminary objection.

Kindly click below to download sample 1 and/or 2

Click here to download Sample 1

Click here to download Sample 2

Practice Tip – Raising Preliminary Objections While On Appeal: The Supreme Court has in the case of Oladokun v Olawoyin (2017) All FWLR (Pt.872) 1441 deprecated the mode of raising of objections that touches only a ground (or two) of the grounds of appeal and therefore does not erode or deal with the substratum of the appeal thus:- “A Preliminary

Learned Scribbles

A Non-boring Guide for Preparing Your Next Final Written Address – Part 3

fredericknkobowo

September 15, 2022

Welcome to part 3 (the final part) of this discourse on preparing final written addresses. Just as a recap, we have discussed what your ultimate to do list should be (in part 1), we’ve mentioned that you should frame the issues for consideration (in part 2) and we’ve mentioned some considerations you should sleep or think over while putting thoughts together for preparing your final address (in part 2 as well).

Let’s briefly review the processes we’ve suggested to you so far and continue our discussion from that point

Read the record of proceedings
Frame the entire story/case into a central legal question or the key legal questions (or legal issues) that the Court will be called upon to decide
After reading the record and framing the issues. It might be wise to sleep on or review the evidence adduced and the legal effects of same
Research

After taking the steps we have just listed again above, we now get to the meat of our entire journey which is the actual writing of the final address.

That said; let’s dive right in.

5. Telling your side of the story

Before you begin your writing of the final address, it would be important to ask – was there a preliminary case strategy?

Was there a preliminary case strategy?

Litigation many times boils down to well implemented or poorly implemented strategy for either party. We sure have not forgotten the position that litigation is not a game of hide and seek. Even so, the obvious truth is that justice most times may not be able to aid the party who has failed to do his preliminary work or failed to proof his case as required by law. This is where trial or case strategy definitely comes in.

On this issue some reminisce comes to mind. My law office represented one of Nigeria’s largest Commercial Banks in a civil suit filed against it by one of its customers. The suit was at the Magistrate Court and the customer’s case was simple. Some withdrawals happened on his account with the Bank but he maintained that he never authorized these withdrawals. At the point of reading the record of proceedings to begin preparing the final address, a better strategy that may have availed us as the Defense came to mind. While giving evidence in chief at the trial, the Plaintiff mentioned the use of moles in the Bank which had the clear implication that fraud had been perpetuated[1]. This mention was actually dead-on arrival for being hearsay (due to the way the Plaintiff mentioned it). However, getting him to link the particular transaction in dispute to fraud on the Bank’s part under cross examination would have been the perfect bait to sink his ship. Once the link was successfully established by his reliable over zealousness to nail the Defendant, we could ask the proverbial Mathias to go home. Why? Because the standard of proof of his case (or most of the allegations in it) would have shifted to proof beyond reasonable doubt. And he clearly won’t have survived such a high standard by the evidence he adduced.

Another case yet again comes to mind. In this particular case, we were defending a client against one of Nigeria’s oldest commercial Banks. The facts were simple – the Bank said our client was owing it. As the pleadings proclaimed, our client took a loan but never repaid the loan since he diverted the loan for his personal use.

As expected, Our Client said the opposite of what the Claimant Bank asserted. By his narration, he was not owing the Bank a farthing. The Bank got back its money and even overcharged him for the loan.

The case initially seemed like a bleak one for our client. First off, who challenges a Bank’s calculation especially when it comes to money – hard Nairas and soft Kobos. Calculating is what a Bank is supposed to be good at right? Exactly. There you got our strategy! Or at least part of it.

The strategy was arrived at after several reviews of the case and it hung on some missteps in the Claimant’s case. Before we mention the missteps, remember that our starting point for this strategy was that the Claimant had the burden of proving its case. Now the missteps. First, the Claimant sought to prove our client’s indebtedness by relying on a statement of account but it did not comply with Section 84 of the Evidence Act. On the trial day, the Court admitted all documents provisionally and directed that all objections to the admissibility of the documents be raised at the point of final address. Once we raised it at final address, the statement of account was expunged from evidence in the Court’s judgment. So, the main stratum of the Claimant’s case was dislodged.

Second, Section 51 of the Evidence Act stood in the Claimant’s way and they never dealt with the Section’s menacing stare. By that Section, the mere presentation of the statement of account – if the Court had refused our objection to its admissibility – was not sufficient to prove the Claimant’s case. They were to do more than just toss the statement of account into evidence. Closely related to Section 51 is the principle of law on dumping documents on the Court. This was also ignored. Rather what was done (as is largely customary) was that – the witness statement of the sole witness was a large duplicate of the pleadings. And the pleadings itself was a concise summary of the facts. So, we submitted strongly that the Claimant dumped documents on the Court, failed to prove its case and rather invited the Court into a private investigation of the facts beyond the Court room.

The aim of our long tales by Moonlight is only to show how preliminary case/trial strategies can inform or guide a lawyer’s entire line of action throughout the course of a pending suit. If there was a preliminary case strategy and it was successfully followed through with the expected points achieved, then it would be necessary to put it in view when writing the final written address. In such a situation, it could in fact be said that you already have the skeleton of your final written address.

If there was no preliminary strategy, fear not. With what we have discussed so far, we will still achieve our final objective.

Paul Usoro SAN and Uwemedimo Nwoko SAN before proceedings at the Federal High Court, Nigeria

Making the arguments – what are you saying?

Making arguments in final addresses can take various forms or structures. But at the core of whatever form is adopted, it must be noted that the arguments are meant to persuade the Judge. The arguments are not just made for arguments sake. Therefore, it is our respectful opinion that where the arguments fail to evoke some persuasive response, they would have failed to achieve their central purpose.

We also suggest that logic is a crucial part of making powerful and persuasive arguments. In other words, to lead the Judge by the hand (metaphorically of course) to the conclusion you are driving at, your arguments would have to avoid hanging on their necks or head. So, whether the conclusion you want the Judge to arrive at is – let my client go even though he looks suspicious (in a criminal charge) or make it rain hard naira or dollars on my client (in a civil matter), your address should be able to logically give the Judge reasons to substantially consider your conclusion, arrive at that same conclusion and ultimately give judgment in your favor.

The arguments made at the end of trial usually should spring from what has been successfully established through out the course of the proceedings. In effect the address should be the topping on a well conducted defence or prosecution of a matter.

Remember in Part 2 we spoke about the foundation and blockwork of each parties’ case? We said pleadings are the foundation of each parties’ case and evidence the block work (in criminal matters, the charge or information would have to be the foundation for the prosecution’s case and reference point for the Defendant’s case as well. Evidence would then have to build thereon – whether evidence to show guilt or evidence to rebut any imputation of guilt).

Now, we said the blockwork (evidence) must rest on the foundation (pleadings). If not, they’ll be problems. If in a matter, a party pleaded a crucial fact, but then failed to lead any or sufficient evidence in proof of that fact, it would be difficult (if not near impossible) for he or she to rely on that fact in proof of his or her case. As Counsel for the adverse party, it would therefore be easy in your final address to rely on the absence of proof of the crucial fact and thus knock off the basis on which the reliefs are sought against your client. Simple equation – where there is no foundation, the blockwork can’t stand.

In addition, whatever writing style you adopt for your final address, the goal remains – persuade the Judge. Give him reasons to find for you in his judgment.

We can’t exactly tell you want to write in your next address as the facts of each case and the law applicable can be widely different. With the samples attached to this discussion, you can receive some inspiration to help you kick start – also the format used in the attached addresses could assist you as well. We hope they do. We have also added a list of reading resources that should help give you serious writing inspiration.

Some common arguments and things to note when fleshing out your final address include –

The pleadings and evidence are a mismatch! This could mean, no credible evidence has been led in support of the pleadings in the suit. The law is trite that pleadings, however strong and convincing the averments maybe, without evidence in proof thereof goes to no issue. Evidence is required to be led to prove the facts relied on by the party or to sustain allegations raised in the pleadings. In other words, an averment of facts in a pleading is not an evidence and can never be so construed. The facts so averred must of necessity be proved by evidence except those facts admitted by the adverse party. See UBA v. ASTRA BUILDINGS (WA) LTD (2010) 41 NSCQR (PT 2) 1016; BUHARI v. OBASANJO (2005)2 NWLR (PT 910)241; YESUF v. OYETUNDE (1998) 12 NWLR (PT 579)483. It follows therefore that pleadings do not constitute evidence and where such pleading is not supported by evidence either oral or documentary, it is deemed to have been abandoned.

The Claimant has failed to prove his case (or he has failed to discharge the burden of proof on him and thus no burden has shifted to the Defendant). It is noteworthy that where the Claimant seeks declaratory reliefs the burden on him is considerable more.

The Defendant’s case is more probable than the Claimant’s hence judgment should be given in the Defendant’s favor. This argument tends to turn on a comparative analysis or evaluation of the Claimant’s case with the Defendant’s case. Remember, the Court appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on both pans of the scale. Thus, a Defendant could emphasize the strengths in this case vis as vis the fundamental or far sweeping weak points in the Claimant’s case and urge the Court to deliver judgment in his favor. Also, even though the Claimant must succeed on the strength of his case and not on the basis of the weaknesses if any in the Defendant’s case, it does seem that this argument could arguably still avail a Claimant especially where there are features in the Defendant’s case that supports the Claimant’s case.

The evidence adduced before the Court is even though admissible, lacks sufficient probative value to ground the reliefs sought by the Claimant’s case. An example comes to mind here. If in a civil proceeding the Claimant alleges that there has been oil spillage and claims damages, but the crux of the Claimant’s case majorly rests on a publication in a newspaper, it is doubtful that the Claimant would obtain the relief he seeks. This position is based on the law as currently stated in the case of LAWRENCE v. OLUGBEMI & ORS (2018) LPELR-45966(CA) amongst other cases on the point. Also, documents tendered from the bar are another minefield that could hurt a Claimant’s case – see the cases of POLARIS BANK v. CENTRE POINT TRAVEL AGENCY LTD (2022) LPELR-57359(CA)- and CPC v. INEC & ORS (2012) LPELR-15522 (SC) AT 32-33 (C-C).

it is not in consonance with the law to say that in every case in which evidence called in support of a plaintiff’s case is unchallenged; judgment must be given in favour of the plaintiff. But on the contrary, it is possible that evidence called in support of a plaintiff’s case even if unchallenged, may still be insufficient to sustain the plaintiff’s claims. See MARTCHEM INDUSTRIES (NIG) LTD v. V.M. F. KENT (WA) LTD (2005) 10 NWLR (PT 934) 645.
The argument could take the form of “the Case law on this issue supports my arguments and where they don’t, they can be distinguished and therefore don’t apply to my case”. One important thing to note arises here and it is this – the principle of stare decisis does not mean that the legal principles established in previous cases can apply across board without specific reference or regard to the special circumstances that may exist in later or subsequent cases. Nnaemeka-Agu, JSC, in Ojibah v. Ojibah (1991) 5 NWLR (PT. 191) 296 also exhorted counsel and the Courts to be wary of “deciding cases and issues on the established legal jingles and catch-phrases without fully asking one’s self how well they fit into the particular facts of the case.” This clearly means that in most cases you can argue that the case law or legal principle cited by the adverse party does not apply to the case at hand. The case law cited could have been upturned by later authorities, legislative actions or the facts in the case law relied upon are distinguishable from the facts in the present case – so the Court can depart from the authority cited.

A crucial element of the alleged offence or the Claimant’s claim has not been proved by credible evidence and in the absence of this element, the entire claim must fail or the Defendant must be discharged and acquitted. For criminal trials, this line of argument could make a substantially good one depending on the available facts proved at the trial. In OKEBATA V. THE STATE (2013) LPELR-22474(CA) at 47 A-B, it was held that failure to establish one element of an offence means failure to prove the case beyond reasonable doubt. Thus it can be argued that by not establishing the essential ingredients/elements of the offence in question, the prosecution has ultimately failed to prove the Defendant’s culpability. Hence, the Defendant should be discharged and acquitted.

Final address of Counsel no matter how eloquent does not take the place of evidence in judicial proceedings – SULEMAN & ORS v. UKANA & ORS (2019) LPELR-46827(CA)

Objecting to the admission of a document at the point of final address is a risky venture that should be graciously avoided.

KEY TAKE-AWAYS

What to look out for when preparing a written address

State of the extant pleadings; to tell admissions and where denials are evasive or otherwise insufficient
Evidence led
Cross examination; facts not cross examined on, facts discredited under cross examination, facts reaffirmed under cross examination.
The Laws applicable to the entire proceedings (including case law) – how they support or weaken your case

CONSIDERATIONS FOR PREPARING THE CLAIMANT’S FINAL ADDRESS

The facts pleaded and facts admitted (from the state of pleadings)
The evidence led in support of pleaded facts
The evidence not contradicted under cross examination
How does the evidence supports the grant of the reliefs sought?

CONSIDERATIONS FOR PREPARING THE DEFENDANT’S FINAL ADDRESS

Any preliminary issues e.g. Jurisdiction
Have the Claimants proved their case?
What evidence was led?
Is the evidence led sufficient? If not, why so?
Did the burden of proof shift to the Defendant at all?
What evidence was led by the Defendant in rebuttal?
Why should the Court believe the Defendant’s case more than the Claimant’s i.e. Has the Defendant’s case tilted the balance of probabilities more than the Claimants?

SAMPLE OF FINAL WRITTEN ADDRESS IN NIGERIA

Free Sample of Final Written Address in a Criminal Matter

SAMPLE-FINAL-WRITTEN-ADDRESS-IN-A-CRIMINAL-MATTER Download

Free Sample of Final Written Address in a Civil Case

DEFENDANTS-FINAL-WRITTEN-ADDRESS-002 Download

Suggested Further Readings

Making Your Case: The Art of Persuading Judges by Antonin Scalia and Bryan A. Garner

The Tools of Argument by Joel Trachtman

Point Made: How to write like the Nation’s Top Advocates by Ross Guberman

Brief Writing for the Court of Appeal and the Supreme Court by Dr Mudiaga Odje SAN [Click here to DOWNLOAD from Nigeria Law Guru]

Written By Frederick Nkobowo LLB, BL

[1] If it was in the high Court, fraud may have been pleaded and particulars provided.