Saturday, November 7, 2009

On whether court can rely on document in its file

A court is entitled to look at a document in its file while writing its judgment or ruling despite the fact that the document was not tendered and admitted as exhibit at the trial.This is an exercise of judicial discretion which must be exercised not only judicially but also judiciously
See Agbasi v.Ebikorefe (1997)4 NWLR (Pt.502)130 Agbahomovo v. Eduyegbe (1999)3 NWLR(Pt.594)170

Evaluation of evidence- Guidelines

In the process of evaluating of evidence the court must have regard to certain guidelines like (a) admissibility of the evidence(b) relevancy of the evidence(c) credibility of the evidence(d) conclusiveness of the evidence(e) probability of the evidence of one party more than that of the other. The trial court having satisfied itself that the foregoing have been complied with would then apply the law to the situation presented in the case before it so as to arrive at a conclusion one way or the otherSee Mogaji v. Odofin (1978)4 SC 91; Akibu v.Opaleye (1974)11 SC 139

On principles guiding consideration of application for extension of time

When a court is invited to make an order extending the time prescribed by the rules of court for taking certain procedural steps it must be borne in mind that such rules of court must be obeyed. if there is default in taking the procedural steps within the prescribed period a court order extending such period being a discretionary one there must be some material upon which to base the execrise of that discretion.
See Williams v.Hope Rising Voluntary Funds Society (1982)1-2 SC 145

Whether documents in support of pleaded facts need specifically be pleaded

Documents in support of facts pleaded need not to be specifically pleaded but can be tendered in evidence to support or prove the facts pleaded.Documents that are alluded to in the evidence even if they are not specifically pleaded.See Odunsi v. Bamgbala (1995)1 NWLR (Pt.374)641;Amadi v. Olumati (1995)7NWLR (Pt.410)739;F.B.N Plc v. Tsokwa (2004)5NWLR (pt.866)271

On What constitutes a contract

A contract is an agreement between two or more parties which creates reciprocal legal obligation or obligations to do or not to do a particular thing.For a valid contract to be formed,there must be mutuality of purpose and intention.The two or more minds must meet at the same point,event or incident.They must not meet at different points,events or incidents.They must be saying the same thing at the same time.

On ingredients of contract

There are five ingredients that must be present in a valid contract.They are offer,acceptance, consideration,intention to create legal relationship and capacity to contract.All these five ingredients are autonomous units in the sense that a contract cannot be formed if any of them is absent

N.B For a contract to exist in all the five ingredients must be present

How to file a notice of preliminary objection when on appeal

Whenever a respondent does not file a separate notice of preliminary objection to the hearing of an appeal giving three clear days'notice thereof beforethe hearing but merely incorporates the preliminary objection in the respondents'brief of arguement. It is imperative on the respondent to move the court to takethe preliminary objection first before proceeding to the main appeal. See: Tiza v. Behga (2005)15NWLR (pt.949)616.

N.B. But where the respondent does not apply for or seek leave of court before hearing of an appeal to move his preliminary objection automatically becomes and shall be deemed abandoned.

Documentary evidence

Where there is oral as well as documentary evidence on an issue of fact the documentary evidence would be used as a hanger to assess the oral testimony. See Abatan v. Awudu (2004)17NWLR (pt.902)430; Kimdey v. Gov; Gongola State (1988)2NWLR (Pt.77)445

JOINDER OF PARTIES

Although courts have always been reluctant to allow the joinder in the cases where joinder is sought by the defendants against the wishes of the plaintiff and without the consent of the person sought to be joined i.e Where the joinder is not being sought by an intervener or by the plaintiff in the action

RIGHT OF FINAL ADDRESS WHO HAS IT?

The party that addresses first has the final right to reply on points of law- no more,no less,and a party shall not be allowed to have a second bite at the cherry

N.B. The rules governing brief writing do not differ in that respect

Plea of estoppel

Plea of estoppel operates not only against the parties but also against the jurisdiction of the court itself and robs the court of its jurisdiction to entertain same cause of action on the same issues previously determined by court of competent jurisdiction between the same parties.See Lawal v. Dawodu (1972) 1 All NLR (pt.2)270 Oshodi v. Eyifunmi (2000)13NWLR(pt. 684)298

REVERSAL OF JUDGMENTS: A RARE POSSIBILITY?

It is not every error of the trial court that will lead to a reversal of its judgment.It is only those mistakes that have been shown to have affected or influenced the decision appealed against that will result in the appeal being allowed. See F.B.N v. Offih (2004)5NWLR (pt.867)540

Sentencing

The sentencing power of a judge is predicated on his discretionary powers,which must be seen to have been exercised judicially or judiciously.See Isang v. State (1996)7NWLR (pt.473)458

N.B. HOW DO YOU DETERMINE THIS DISCRETION?

RAISING A FRESH ISSUE ON APPEAL

Where a party wishes to raise and argue any fresh issue in an appeal which was not raised or canvassed at the lower court,he must seek for and obtain leave of the appellate court before he can validly do so.The only exception to this rule against fresh issues without leave is where the issue is or relates to the question of jurisdiction which can be raised at any stage even for the first time without leave.Where leave is required and has not been sought or obtained as in the present case,the issue (or point) so raised will be regarded as incompetent and either struck out or discountenanced See: Obiakor v. State (2002)10 NWLR (pt.776)612; Gaji v. Paye (2003)8NWLR (Pt.823)583; Makanjuola v. Balogun (1989)3NWLR (pt.108)192; Oredoyin v. Arowolo(1989) 4NWLR (pt.114)172

Public Document

A document is a public document if :
(a) It was made under a strict duty to inquire into all the circumstances.
(b) It was concerned with a public matter although the public matter need to be the concern of the entire community.(
c) It is meant for public inspection.Did you know thatOnce a document is marked rejected it stays rejected for the purpose of the trial in which it was marked rejected and the defects cannot be cured during the said trial.
See: Agbaje v. Adigun (1993)1 NWLR (Pt.269) 271; Bello v. Gov; Kogi State (1997) 9NWLR (Pt. 521) 520N.B.
A public document is thus a document that is made for the public or at least a section of the public making use of it.

MADUKOLU V. NKEMDILIM: THE DECIDENDI

Before any court of law assumes jurisdiction so as to determine or adjudicate on a cause or matter,the court must be competent.

A court is competent when :

(a) The court is properly constituted as regards members and qualifications of the bench and no member is disqualified for one reason or the another; and

(b) The subject-matter of the case is within the court's jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction;and

(c) The case comes before the court intiated by due process of law and upon fulfilment of a condition precedent to exercise of jurisdiction. And any defect in competence is fatal because the proceedings of the court are a nullity however well conducted See: Madukolu v. Nkemdilim (1962)2 SCNLR 341

Principles governing the interpretation of statutes

The rules or principles governing the interpretation of statutory provisions are as follows:

(a) It is the intention of the legislature that should be sougth and the same is to be ascertained fom the words of the statute alone and not from other sources.

(b) Where the words used in the provisions of a statute are clear,simple and unambiguous they should be given their simple,natural and ordinary meanings.

(c) The court is not concerned with the result of its interpretation of statutory provision that is it is not the court's province to pronounce on the wisdom or otherwise of the of the statute but to determine its meaning.

(d) The court must not import into a legislation ,words that were not used by the legislature and which will give a different meaning to the text of the statutes as enacted by the legislature.

(e) The court must not bring to bear on the provisions of a statute its prejudices as to what the law should be, but rather should interprete the law from the clear words used by the legislature.

(f) The court must not amend the statute to achieve a particular object or result

Comment: i wiil call the last line (f) ''window dressing'' or ''enlongated forum shopping'' if u like in some cases
See: Awolowo v.Shagari (1979)6-9 SC 51; Fawehinmi v. I.G.P (2002)7NWLR (Pt.665)485; Adeleke v.O.S.H.A (2006) 16 NWLR (Pt.1006)603; C.C.C.T&C.S v. Ekpo (2008) 6NWLR (Pt.1083)362; Aqua ltd. v. O.S.S.C (1988)4NWLR (Pt.91)622; Ojokolobo v. Alamu (1987)3NWLR (Pt.61)377; Ogbonna v. A.-G; Imo State (1992)1NWLR (Pt.220)647

Locus:what you must know

Locus standi is unequivocally a threshold issue, it is not dependent on the merits of a case as earlier mentioned supra of a case but on the showing of plaintiff 's case in his statement of claim .In other words the question whether a plaintiff has locus standi to sue is determinable from the totality of averments in the statement of claim.And if there is no requisite locus standi to sue by a plaintiff it is not necessary to consider whether there is a genuine case on the merit See: Owodunni v. Regd., Trustees C.C.C. (2000)10 NWLR(Pt.675)315; Odeneye v. Efunuga (1990)7 NWLR (Pt. 164)618

CONTRACT:the burning issue of privity of contract

The doctrine of privity of contract portrays that as a general rule a contract affects only the parties thereto and cannot be enforced by or against a person who is not a party to it.The doctrine stipulates that only parties to a contract can sue or be sued on the contract and a stranger to a contract can neither sue for his benefitand purports to give him the right to sue or make him liable upon it.Morever the fact that a person who is a stranger to the consideration of a contract stands in such a near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue or be sued upon the contract.Though the doctrine of privity of contract admits exceptions

LOCUS STANDI: the begining

The term locus standi denotes the legal capacity to institute an action in a court of law.It is a status which the plaintiff must have before being heard in court.It is a condition precedent to determination on the merits.
Where it is proved that a plaintiff lacks locus standi to bring an action,the court will decline jurisdiction as it has none.

The basic facts about locus standi

Did you know that
Locus standi has been described as an unquestionable threshold issue.In order that a court may have jurisdiction,the plaintiff must have locus standi to commence or institute the action.Hence locus standi has also has been described as a forerunner to jurisdiction See : Madukolu v. Nkemdilim (1962)2 SCNLR 341

The rigth to sue or locus standi or standing to sue (in literary terms) cannot be presumed or implied.It can only be conferred by statute or by the Constitution or some customary law See: Financial Merchant Bank ltd v. NDIC (1995)6NWLR (Pt.400)226

However the locus standi to sue on a bill of lading for example is either in contract,bailment or tort of negligence is statutory and derivable from section 375(1) of Merchant Shipping Act Cap.224 laws of the federation of Nigeria 1990 See : Broadline Ent. Ltd v. Monterey Maritime Corp. (1995)9NWLR (Pt.417)1

In order for a court to have jurisdiction a plaintiff must have locus standi to commence or institute the action .Accordingly where it is proved that a plaintif lacks locus standi to initiate an action the court will decline jurisdiction as it would have none. See: M.V. Bacoliner 3 v. Adeniji (1993)2NWLR (Pt.274)195

So locus standi and Jurisdiction are twin brothers one cant do without the other!