Squib Case Law

(Vol.10 No.6) FRN V. OLABODE GEORGE & 5 ORS

2009-11-05T20:22:00.000-08:00

NAME: OYEWOLE JOSEPH OLABUNMI KAYODE

STATE OF ORIGIN: OSUN

EDUCATION: AUD Primary school, Ijebu ode: 1971-1972, St. Richard's Primary School, Eleiyele, Ibadan: 1973-1976, St.Charles Grammar School, Osogbo: 1976-1981, University of Ife (Now O.A.U), Ile-Ife: 1981-1985, Nigerian Law School: 1985-1986

PROFESSIONAL CAREER: Legal Officer, Public Complaints Commission, Makurdi: 1986-1987, Counsel, Afolabi Adeniran & Co (Legal Practitioners): 1987-1988, Principal Counsel, Olubunmi Oyewole & Co (Legal Practitioners); 1988-2001. Appointed Judge of the High Court of Lagos State: 24th May 2001.

Hobbies: Reading, Gardening and watching sports

IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT HIGH COURT NO 33, CRIMINAL DIVISION IKEJA
BEFORE HON. JUSTICE J.O.K. OYEWOLE
TODAY MONDAY TE 26TH DAY OF OCTOBER 2009.

SUIT NO: ID/71c/2008

BETWEEN

FEDERAL REPUBLIC OF NIGERIA - COMPLAINANT
AND
1. CHIEF OLABODE GEORGE - DEFENDANT
2. ARCHITECT AMINU DABO - DEFENDANT
3. CAPTAIN O. ABIDOYE - DEFENDANT
4. ALHAJI ABDULAHI AMINU TAFIDA - DEFENDANT
5. ALHAJI ZANNA MAIDARIBE - DEFENDANT
6. ENGR. SULE ALIYU - DEFENDANT

JUDGMENT

Editor’s Note:-
The pages of the judgement in this case containing the charges against the defendants, alone number 40. Accordingly they have been edited. Suffice to state here that the accused faced
7 counts of inflawn of contract to section 22 (3) of the corrupt practices and other related offences Act 2000
1 charge of conspiracy to disobey lawful order contrary to section 577 of the criminal code of Lagos State
49 charges of disobedience to lawful order contrary to section 203 of the criminal code of Lagos State 1994
11 charges of Abuse of office

Trial started immediately thereafter in the course of which 10 witnesses testified for the prosecution while only one witness, the 1st defendant testified for the defence. Prosecution tendered 20 exhibits while the Defence tendered 9 exhibits.
PW1 was Ayoola Elijah Ajala a Chief Superintendent of Police attached to thy Economic and Financial Crimes Commission (hereinafter called EFCC) as investigator.
His evidence in chief was that he was co-opted into the Committee set up by the Federal Government to review the activities of the Nigerian Ports Authority under the chairmanship of the then Executive Chairman of the EFCC, Mallam Nuhu Ribadu. For ease of reference the said Committee shall hereinafter in this judgment be referred to as "the Ridadu Committee".
He outlined the terms of reference of the said Committee and stated that it submitted Its report to the Government which then forwarded it to the EFCC for more detailed investigation but lie however could not participate in the said investigation as he was transferred out of Lagos. lie identified a certified true copy of the report of the said Committee and it was admitted as exhibit P1.
Under cross-examination from the lead counsel for the 1st defendant Mr. Ayanlaja (SAN), he testified that he was not a signatory to exhibit PI and that the defendants were invited by the said Committee.
Since he took no part in the subsequent investigation he could not testify about it but identified minutes of the 11th Board meeting of the NPA and it was admitted as exhibit Dl.
Shown portions of the said exhibit Dl relating to contracts alleged in the charge to have been inflated he stated that no inflation was apparent on the face thereof and would rather leave detailed testimony to the investigators.
He stated that the work of the Ribadu Committee extended beyond the board to the entire NPA and that the 1st defendant appeared before the said committee but he was not part of those who interacted with him personally.
He stated further that to effectively discharge its functions the committee co-opted professionals from various governmental institutions including theEFCC' and he headed the EFCC group.
He was confronted with a certified true copy of the minutes of the 9th board of directors meeting of the NPA and another certified true copy of the minutes of the 11th board of directors meeting of the NPA and they were admitted as exhibits D2 and D3 respectively. From the two exhibits no contract was seen to have originated from the NPA board, no inflation of contracts was apparent; he could not identify any split contract and not being an expert on pricing he could not testify on it.
He listed the contract approval levels identified by him in NPA and Indicated the difference between the board and management levels.
Under further cross-examination from the learned lead counsel for the 2nd defendant, Mr Adesina (SAN) he stated that was not aware of any government white paper on exhibit PI and was equally not aware it was rejected.
To his knowledge no contractor involved in the Counts being tried was interviewed by the Ribadu Committee, and he also knew that the NPA board used a 1999 guideline for the contracts awarded in the period under review but he was not aware of how the 2001 financial guideline was communicated to the NPA.
He stated that he was aware of a price survey unit in the NPA but would not know how it worked. He however insisted that the board of the NPA had a duty to verily every contract before approving it.
Shown exhibits D1 and D2 once again, he observed that the apparent contents thereof cannot be conclusive as indicated from later investigation and that a representative of the supervising Ministry of Transport participated in the board meetings.
Cross-examined further by Mr. Ojo the lead counsel for the 3rd Defendant, he stated that although he was not aware that exhibit PI was adopted by the Federal Government it was referred to the EFCC for further investigation.
He further Slated that the defendants sitting as board members of the NPA had responsibility to approve or reject contracts.
Under Cross-examination from Mr Sanni for the 4th defendant he stated that the 4th defendant was invited by the Ribadu Committee, that to his knowledge none of the defendants benefited from the awarded contracts and that none of the benefiting companies belonged to them.
Mr IJkoh the learned counsel for the 5th defendant adopted previous cross-examinations of other defence counsel while the lead counsel for the 6th defendant Mr Farounbi cross-examined him further and he stated that he never met the 6th defendant before coming to Court to testify and was not aware of his invitation by the Ribadu Committee.
He was shown exhibit D2 but could not explain why other named board Member were not charged along with the defendants.
He reiterated that no contract originated from the board or 6th defendant in particular and that although the contracts were expected to have been vetted by professionals the board still had responsibility to reject or approve any contract placed before it.
He was re-examined by Mr. Hassan the then lead prosecutor and he clarified the circulars board approval levels. He insisted that the board was not bound to approve all contracts recommended to it by the management.
PW2 was Engineer Mustapha Bukar a senior civil servant and one time director of Maritime in the Federal Ministry of Transport.
His evidence in chief was that in October 2003 he served as Chairman of the Administrative Panel set up by the then Minister of Transport to review contracts awarded by the NPA between 2001 and 2003.
In the course of his said assignment, he interacted with the 1st, 2nd and 31st defendants and identified the two government circulars which formed the basis of the review exercise as well as the interim and final reports of his Committee. They were admitted as exhibits P2 to P5 respectively.
He highlighted some of the irregularities noted by his Committee and reflected in its reports.
Cross-examined by Mr Ayanlaja (SAN) for the 1st defendant he stated-mat the? inclusion in his committee of a person who had previously expressly his grievances about activities of the NPA leadership did not affect its objectivity as the committee also noted the incongruity and ensured the said person played no prominent role in its activities.
He denied that his report was rejected but stated that it led to more detailed investigation.
His committee found that no contract originated from the board and although exhibits P2 and P3 came in the course of the life of the NPA board in which defendants served, the circular exhibit P3 was brought to their attention by the Ministry's representative on the board who later testified as PW4 and was not charged along with the defendants.
While he was aware that government parastatals differed in functions and revenue base, he was also aware that NPA generated its own revenue but he knew nothing of the expenditure limit of the NPA board prior to 2001.
He was shown exhibit P5 and stated that he did not come across any contract that was inflated or split at the board level as these took place at lower levels and while not in agreement with the J.K. Randle price report noted that NPA did not use its Internal price intelligence units.
Further cross-examined by Mr Adesina (SAN) for the 2nd defendant his attention was drawn to the portion of exhibit PI referring to government's views about his report but he insisted that his report was not rejected as the terms of reference of the later Ribadu Committee differed from his.
He once again denied being aware of the previous expenditure limit of the NPA board prior to 2001 and stated that the portion of his report exhibit P5 on the subject was based on information received by the Committee.
Shown the received stamp date on exhibit P3, he stated that it was an error.
Under cross-examination from Mr. Ojo for the 3rd defendant, he stated that he did not know if his report exhibit P5 was adopted by the Federal Government and insisted that although there was no NPA stamp on exhibit P3 it w^ deemed received by all those it was addressed to.
He further stated that his committee disagreed with the Randle price report and did not use it.
The learned counsel for the 4th defendant adopted previous cross-examinations by other defence counsel and under cross-examination from Mr. Ukoh for the 5th defendant he denied being aware that his committee was a fall out of the then feud between the I'1 defendant and the then Minister of Transport.
He admitted that his committee did not invite the 5th defendant and he never met him before appearing in court
Under final cross-examination from Mr Farounbi for the 6th defendant he stated that the 6th defendant was also not invited by his committee and he never mot him as well before coming to testify in court. He would not know if any of the; companies which benefited from the contracts belonged to the 6th defendant. and agreed that exhibit P3 emanated from the Ministry of Water Resources where he presently serves and not Transport.
He was not re-examined.
PW3 was Mr Bamanga Bello an operative of the EFCC. His evidence in chief was that he was co-opted into the Ribadu Committee and led the subsequent EFCC investigations based on the two Committees' reports; exhibits PI and P5 in the course of which assignments he interacted with the defendants.
In the course of the investigations he examined various documents including minutes of board meetings of the NPA which revealed that irregular contracts were awarded at the 9th and 11 board meetings of the NPA. To determine foreign exchange values, he contacted the Central Bank of Nigeria and after examining the minutes exhibits Dl, D2 and D3, relating them to the government circulars exhibit P2 and P3 and applying yardsticks for fair pricing adopted by the Ribadu Committee, he came up with schedules of contracts inflated, split or beyond approval levels. He identified the document to which was attached the prevailing rates in 2001 to 2003 obtained from the Central Bank of Nigeria as well as the schedules he made and they were all admitted as exhibits P6 to P9 respectively.
He was shown exhibit PI A and he went through it in details explaining the various entries therein.
Under cross-examination from Mr. Ayanlaja (SAN) for the 1st defendant he gave his academic qualifications and professional experience.
He explained that contract pricing was handled by a technical sub committee which he was not part of but that the criteria used were standard and not arbitrary.
By stated that his investigations took cognizance of the NPA Act and assumed that from the minutes exhibit D2 the defendants were aware of the financial guideline exhibit P3 and could at the stage it was brought to their notice recall all contracts already awarded at that meeting which were beyond the new approval limits.
He further stated that the defendants admitted knowledge of exhibit P3 in their various extra Judicial statements and that he was aware of the various composition of the NPA board during the period under review as well as the various ports under the NPA.
He was shown exhibits P6, P7 and P8 and he stated that apart from the minutes of meetings, he also saw the contract documents relating thereto and explained certain items said to be split.
He agreed that the minutes showed no resolution splitting contracts as the board approved what was presented by management but insisted the approvals were improper and could have been withheld.
He confirmed that the Nigerian Ports Authority Act, 1999 was used as guidelines and also agreed that the NPA is subject to the Minister of Transport but pointed out that going by exhibit D2 the government guideline in issue was forwarded by the said Minister of Transport. He read relevant portions of the said exhibit D2.
He identified the covering letter of the Secretary of the NPA to which was attached the guidelines said to have prevailed in NPA prior to 2001 and both WOT admitted together as exhibit D4.
He conceded that apart from the minutes of the board meeting he did not see any copy of the letter from the Ministry of Transport conveying exhibit P3 to the NPA and when his attention was drawn to the list of members of the Ribadu Committee stated in exhibit PI, he insisted that he was a co-opted member.
When shown discrepancies in the dates in exhibit PI A vis a vis the minutes of the board meetings, he explained that he was guided by the dates in letters of award of the contracts involved.
He reiterated that contracts were awarded by the defendants at prices far above the fair prices determined by the Ribadu Committee and stated that all the allegations now forming the present charge were put to the 1st defendant and his co defendants when they were interviewed individually.
He conceded that as at 2005 when the Committee sat the 2001 financial guidelines was not being used in the NPA but rejected the suggestion that it was because the 2001 guideline was never received. He was shown a letter from the Managing Director of the NPA confirming the prevailing guideline and It was admitted as exhibit D5.
He listed the various levels in the NPA at which contracts are awarded and the various personalities who were managing directors of the NPA in the years under review but pointed out that all the contracts found to be irregular were awarded at the 9th and 11th board meetings during the tenure of the 2nd defendant.
He agreed with the senior defence counsel that all the contracts involved emanated from the end users and that none originated from the board.
He was shown exhibit D3 and he identified certain items therein as examples of an obviously split contract which the board to which the defendants belonged approved thereby shirking their responsibilities.
He also stated that it was found that the NPA disregarded the in house price intelligence unit and acknowledged that some of the board members involved were not arraigned with the defendant which was outside his purview not being a prosecutor but insisted that the defendants were charged based on their personal roles as board members.
Cross-examined further by Mr Adesina (SAN) for the 2nd defendant he once again listed the various contract awarding levels in the NPA but could not remember off hand the names of all the board members of the NPA in the period under review, he however remembered that the secretaries were invited by the Ribadu Committee. When his attention was drawn to the list of members of members of the board in the said period who were not charged with the defendants, he insisted that the prosecution was not selective.
His attention was then drawn to exhibit D5 and he agreed that in 2005 the pre 2001 expenditure guideline was still being used in NPA well after the -defendants had ceased being members of the board.
He was shown the certified true copy of a letter from the secretary to the NPA staling the functions, powers and procedure of the NPA board and it was admitted as D6.
He stated that part of the documents factored into the price mechanism of the Ribadu Committee was the J.K. Randle report and the certified true copy of
the reaction of the NPA leadership to the said report was admitted as exhibit D7.
Under further cross-examination from Mr. Ojo for the 3rd defendant he stated that the NPA failed to put a due process team in place and that the board had supervisory jurisdiction.
He insisted that the identified item in exhibit D3 was split and that the defendants approved inflated contracts denying once again that prosecution was selective.
When cross-examined by Mr. Sanni for the 4th defendant, he stated that the 4th defendant appeared before his investigation team after PW1 had been transferred out of Lagos.
Learned counsel for the 5th defendant adopted the cross-examinations of the other defence counsel while under cross-examination from Mr Farounbi for the 6 defendant he insisted that the defendants represented the board of the NPA in the period under review.
He stated further that the 6th defendant was invited and appeared before his investigation learn and when shown exhibits D2 and D3 he stated that the board approved recommended prices which were inflated even if it never increased any recommended price.
When re-examined he said that he was co-opted into the Ribadu Committee and participated in the deliberations.
PW4 was Alhaji Wali Masur Kurawa a civil servant who sat on the same board of the NPA with the defendants as ex officio member representing the Ministry of Transport.
His evidence in chief was that he attended one out of the three meetings of the NPA board constituting the 9th Board meeting covered by exhibit D2. At the meeting he attended, he drew the attention of the board to the new approved expenditure guidelines but they refused to comply. He identified exhibit P3 as a copy of the guidelines he drew the defendants* attention to.
He confirmed that the said circular exhibit P3 extends to the NPA but would not know if It had been forwarded to the NPA prior to his bringing it to the board's attention. However as the said circular was meant for immediate implementation he expected that it would had been sent to the Managing Director of the NPA.
He stated that none of the defendants objected at that meeting to the decision not to comply with exhibit P3 and explained that contracts awarded by the NPA board in foreign currency were usually calculated at the Central Bank of Nigeria rate.
Under cross-examination from Mr. Ayanlaja (SAN) for the F1 defendant he was able to recall his invitation and testimony before the Ribadu Committee.
Because he left the NPA in 2004 he was not aware of exhibit D5 but knew that prior to the circular exhibit P3 the approval guideline in NPA was the 1999 guideline which gave N60million ceiling to the board.
He stated that no contract was awarded at the third and last session of the 9th board meeting where he brought up the circular exhibit P3 and now recalled that he attended a previous session of the said 9th board meeting where contracts were awarded.
He stated further that communications between the Minister of Transport and the NPA would either be in writing to the Managing Director or through the Ministry's representative on the board.
He reiterated that he would not know if the circular exhibit P3 had been communicated to the NPA before he did and that prior to that time he too was unaware of its existence.
To his knowledge the board did not inflate or split any contract although board papers were usually delivered late which he complained about.
He agreed that if implemented exhibit P3 could cripple port activities and recommended enhanced limits for the NPA in his testimony before the Ribadu Committee same as the former Minister of Transport, Mr Abiye Sekibo. He identified the minutes of the Ribadu Committee related thereto and it was admitted as exhibit D8.
Under further cross-examination from Mr. Adesina (SAN) he confirmed that decisions of the board were joint but was not conversant with the operations of the departments in NPA.
He staled that no contract originated from the board and that none was awarded at a higher price than recommended by management. He further stated that due to its sensitive nature, NPA needed to be able to take quick decisions.
Further cross-examined by Mr OJo for the 3rd defendant he stated that he was directed to bring up exhibit P3 at the board's meeting when the Minister of Transport noted that NPA was not complying therewith and to make up for the lapse of the planning department in the Ministry which had responsibility for circulating such directives, the Minister then wrote and he circulated.
He insisted that exhibit P3 emanated from appropriate quarters.
Learned counsel for the 4th, 5th and 6th defendants adopted the previous cross-examinations of the other defence counsel.
When re-examined he identified exhibit D5 as the circular stipulating previous approval level but noted that it did not actually contain N60 million limit for the NPA board as he previously stated under cross-examination.
PW5 was Mr Usman Jida Shuwa a civil servant. His evidence in chief was that he Is presently the director of administration in the Ministry of Interior but was the successor of W4 in the Ministry of Transport, He knew all the defendants except the 1st defendant and was a full member of thy Ribadu Committee, and chaired most of the meetings of the said committee in the absence of the substantive Chairman, Mallam Ribadu.
He recounted his wide experience in the Civil Service giving details of various positions previously held by him and identified exhibit D8 as minutes of several meetings of the said Ribadu Committee.
He also gave details of how the circular exhibit P3 emerged and stated that the NPA board failed to comply with it but rather continued to rely on the 1999 guidelines. The findings of his Committee as contained in exhibit PI also Included Inflation and splitting of contracts.
He identified (SKhibit D4 as the 1999 guidelines relied on by the NPA board.
He stated that Ministries were duty bound to convey government circulars to their parastatals which by the content of exhibit D2 was done in respect of exhibit P3 and that issues relating to inflation and splitting of contracts were handled by a technical sub-committee whose report was adopted by the larger Ribadu committee.
He defined what constitutes splitting of contracts in government procurement parlance.
Under cross-examination from Mr. Ayanlaja (SAN) for the 1st defendant he spelt out the communication channel between the Ministry of Transport and its parastatals and stated that although he saw no letter from the Minister of Transport to the NPA on exhibit P3 he was aware that PW4 brought it to the Defendants’ attention as shown in exhibit D2.

CONTINUED FROM LAST WEEK….
He was sure that prior to exhibit P3 the financial guideline was not exhibit D4 as according to him no Minister had powers to unilaterally stipulate financial guideline for parastatals under him and produced the Government financial guidelines which preceded exhibit P3 and it was admitted as exhibit D9.

He confirmed that no contract emanated from the board but contended that the board was not bound to approve all recommendations made to it. He admitted not being part of the Ministry of Transport during the period under review but could not ascertain whether exhibit D9 was shown to the defendants or PW4 by his committee even when shown the minutes of the proceedings of that Committee exhibit D8 and was not aware of any disciplinary measures taken against the signatory to exhibit D4 for writing the said letter.

His attention was drawn to the views of the then Minister of Transport that the implementation of exhibit P3 would ground the ports and in reaction thereto he stated that while this could be so, the right procedure was to bring the situation to the President's attention for a waiver to be granted.

He stated further that his knowledge of the contracts involved emanated from the evidence presented to his Committee and was sure that defendants were confronted with allegations of contract splitting and inflation which they all denied.

Under further cross-examination from Mr. Adesina (SAN) for the 2nd Defendant he stated that exhibit P3 was meant for all government ministries and parastatals including NPA and that none can claim exemption and further that after being made aware of exhibit P3 the defendants continued to award contracts in disregard thereof.

He willed that he was posted to the Ministry of Transport in 2005 as Maritime Director but he never sat on the board of NPA as the board was not constituted during his tenure.

He was shown exhibit pi and confirmed that it did not contain names of contractor's involved in the Counts being tried and when shown exhibit D9 he also confirmed that the certification thereon was made by the EFCC but insisted that all Government Ministries and Parastatals got the said exhibit D9.

He stated that he did not sign exhibit PI as Chairman since Mallam Nuhu Ribadu was the appointed Chairman and agreed with the learned senior counsel that exhibit D4 preceded the defendants' membership of the NPA board and that exhibit D6 written by the Legal Adviser to the NPA conforms with exhibit D4 which the defendants said they complied with.

Further cross-examined by Mr Ojo for the 3rd defendant he stated that he did not know if exhibit PI was adopted by the Federal Executive Council.

He insisted that the board members of the NPA had responsibility to ensure that only proper contracts were approved and to also direct management in appropriate circumstances.

He said that while serving as Director of Maritime Services in the Ministry of Transport exhibit D4 was never brought to his attention and denied the suggestion that exhibit D9 was prepared for the purposes of this trial insisting [t was a genuine government circular.

Mr, Sanni for the 4th defendant adopted the previous cross-examinations of the other defence counsel while he was cross-examined by Mr. Ukoh for the 5th defendants and he stated that government circulars on the face thereof never state the law enabling them.

Under cross-examination from Mr Farounbi for the 6th defendant he stated that only the 1st and 2nd defendants appeared before his Committee but he did not know the capacity in which the defendants were charged and was not aware of any other instance where anyone other than PW4 brought exhibit P3 to the attention of the defendants.

When re-examined by the learned prosecutor he stated that exhibit D9 was the appropriate operating financial guideline before exhibit P3 and not exhibit D4 which had no legal mandate,

PW6 was Mr Olanrewaju Yusuf Olaleye a quantity surveyor and civil servant in the Federal Ministry of Works, Housing and Urban Development.

His evidence in chief was that he has about 18 years professional experience and initially served as a pioneer consultant to the Budget Monitoring and Price Intelligence Unit located in the Presidency otherwise called the Due Process Office before he was later absorbed into the Federal Civil Service.

He was a member of the Ribadu Committee and chaired the technical sub-committee which handled the issue of pricing of contracts for which exercise he co-opted relevant professionals from various governmental bodies related to NPA activities.

His technical sub-committee inspected all available contract records painstakingly and physically inspected various project sites where possible. Prices were determined using acceptable industry standards and at the end of the exercise they found some of the contract prices fair, some high and some indeterminable due to absence of documents. They also found incidents of splitting and inflation of contracts.

in line with standard professional practice, their findings were initially made across to the defendants and others affected for them to have the opportunity to respond and possibly provide justifying documents. They obtained responses from some of the past Managing directors and these responses were reflected in the final report but none of the board members responded.

He identified exhibit PI A as the findings of his Committee any explained how fair price of the contracts involved were determined emphasizing that his Committee was thorough and fair.

Under cross-examination from Mr. Ayanlaja (SAN) for the 1st defendant he denied being aware of any price intelligence unit in the NPA and did not personally ask about it. He also did not personally question the defendants when they appeal'o4 before the Committee as he was busy at the premises of the NPA with the activities of his technical sub-commute but he attended meetings of the main committee.

Despite the enormity of the necessary expenditure profile of the NPA which could be striped with the implementation of exhibit; P3 he still felt the proper thing was to obtain presidential waiver instead of willful disobedience.

He stated that he found mat all contracts approved by the defendants originated from the user departments which did not include board members and that the board minutes did not reflect resolutions to split or inflate contracts but that the approvals made were irregular for failing to comply with government guidelines.

He stated further that due to the absence of resident due process teams in the NPA, it was impossible for him to identify the stage in the process when contracts splitting and inflation occurred but that the approvals by the defendants were not disputed.

He did not agree that the "NPA was not covered by exhibits P2 and P3 and insisted that as directed by exhibit P2, the NPA board as final authority ought to have set up due process teams different from appraisal officers in use in NPA,

He further insisted that the defendants were afforded right of reply to the report of his technical sub-committee but failed to utilize it unlike past Managing Directors and Managers who exploited the opportunity.

He was of the view that PW4 was not a full member of the NPA board as he only represented the Ministry of Transport and when shown exhibit D9, the minutes of some of his Committee meetings he conceded that the only issue put lo the 1st defendant was about approval beyond limit but he was resolute that a review of the minutes of the relevant NPA board meetings in question will reveal splitting of contracts.

He said that the term 'split of contracts' as shown in exhibits P2 and P3 had special meaning in procurement and that the defendants were notified in that sense but could not say whether exhibit P2 was received in the NPA. He specifically referred to pages 75 and 78 of exhibit D2 as example of a split contract which the defendants wrongly approved.

He stated that his committee was concerned about the entire approving and awarding authorities in the NPA which included the defendants and that the absence of due process teams allowed the prevalence of arbitrariness in the NPA although no appraisal officer confessed such to him.

He explained that before any contract could be approved by the Federal Executive- Council it would be accompanied by a due process certificate unlike what obtained in the NPA board in which the defendants served.

He stated that he never personally met or interviewed PW4 as he interacted with some appraisal officers but was aware he represented the Ministry of Transport on the NPA board. He insisted that price determinants are standard and once again explained how fair prices in this instance were arrived at. He agreed with the learned senior counsel that knowledge of exhibits P2 and P3 was crucial to compliance therewith.

Further cross-examined by Mr. Adesina for the 2nd defendant he pointed out that only the presidency had a due process department and that what NPA did not have in place was a due process team comprising relevant professionals. He further stated that all contracts ought to have a due process certificate but agreed that this was not indicated in exhibit PI, the committee's report.

He maintained that he actively compiled exhibit PI A with his committee members and that he is a pioneer consultant on due process in the country.

He said that his price evaluation included cost of training and when his attention was drawn to exhibits D2 and D3 concerning contracts mentioned in Counts 1-7 whose awarded prices included cost of staff training, he agreed that it would affect the final price.

He also agreed that contracts awarded by the defendants were done at below contractor quotes and that none of the defendants worked as appraisal officers in NPA.

Concerning appropriate foreign exchange rates, he stated that he relied on exhibit P9 despite the date on the covering letter thereof but agreed that contractors were not bound to source their foreign currency needs from the Central Bank of Nigeria.

Shown exhibit P1 he conceded that none of the contractors involved in the counts being tried was interviewed by his Committee but however explained that this was deliberate to avoid possibility of prejudice.

He stated that he sent out his subordinates to find out prices from manufacturers representatives and agents locally and was well aware of the disagreements with the J.K. Randle prices but that his Committee only relied on some other aspects of the said report other than pricing.

When asked about the other publications and documents relied on for pricing guidance, he responded that they were not in court and could not recall their names in full offhand.

Under additional cross-examination from Mr. Ojo for the 3rd defendant, he stated that the defendants were concerned with contract approvals after their subordinates must have completed the preliminary stages. He maintained his earlier definition of contract splitting and insisted that the defendant approved split contracts even if from exhibits D2 and D3 they did not pass any resolution to split contracts.

Learned counsel for the 4th and 5th defendants adopted the previous cross-examinations of the other defence counsel while under more cross-examination from Mr Farounbi for the 6th defendant he stated that no single contract approved by the defendants had due process certification and that notwithstanding the content of exhibit PI, PW4 was not a full member of the board 4th he only represented the Ministry of Transport-He agreed with the learned counsel that his sub-committee solely handled technical issues.

When re-examined by learned lead prosecutor, he stated that what guided his committee on foreign exchange was the attachment to exhibit P9 and not the covering letter.

PW7 was Mr Azuonye Okorocha a staff of the Central Bank of Nigeria. His evidence in chief was that his office received a letter from the EFCC asking for the prevailing foreign exchange rates from 2001 to 2003 and the said information was supplied.

He identified exhibit P9 as the letter signed by him for the Central Bank of Nigeria and that the attachment thereto represented the requested rates for 2001 to 2003 which is system generated and unalterable.

Under cross-examination from Mr. Ayanlaja (SAN) for the 1st defendant he stated that foreign exchange rates are determined on daily basis while the attachment to exhibit P9 does not reflect daily entries.

Under further cross-examination from Mr. Adesina (SAN) for the 2nd defendant he read the attachment to exhibit P9 showing monthly rates.

Learned counsel for the remaining defendants adopted the cross-examination already made and he was not re-examined.

PW8 was Mr Sanusi Mohammed an operative of the EFCC. His evidence in chief was that he got to know the defendants through his Involvement in the investigation of this case in the course of which he supervised thy extra judicial statements made to the EFCC by the 3rd, 4th, 5th and 6th defendants.

He identified the said statements and they were admired as exhibits P10, P11, P12 and P13 respectively.

Cross-examination for the 1st defendant he stated that his only role was supervising the statements he tendered. Other defence counsel adopted the cross-examination made for the 1st defendant and he was not re-examined.

PW9 was Mr. Temilu Alkali also an operative of the EFCC. His evidence in chief was that he knew the defendants during the investigation Of this case and personally interviewed the 1st and 2nd defendants when they made statements to the EFCC. He identified the statements made by the 1st defendant and they were admitted as exhibits PI 4 to PI 8 respectively.

Under cross-examination for the I'1 defendant he insisted that by was present and supervised the making of exhibit P14 by the 1st defendant in Abuja and also witnessed the remaining ones in Lagos. He stated that his only role was in supervising the making of the statements in question.

He was not cross-examined by the remaining defence Counsel and was also not re-examined.

PW10 was Mr. Ibrahim Shetima an engineer with the Nigerian Maritime Administration and Safety Agency otherwise called NIMASA. His evidence in chief that he was co-opted into technical sub-committee of the Ribadu Committee under the leadership of PW6 which dealt with issues of contract splitting and inflation. He saw documents relating to the contracts involved and as an electrical Engineer visited most of the sites physically and .also for price Verification visited manufacturers, manufacturer's representatives, agents and in some cases checked the internet.

He identified exhibit PI A as the findings of his sub-committee and pointed out item 18 thereon as an instance of split contract and item 4 as inflated contract arid explained how he came to the conclusion,

Under cross-examination for the 1st defendant he stated that he was not aware of the professional leaning of the 5th defendant and never knew there was any engineer on the board of NPA.

He agw4 that the contracts in question originated from end users and also agreed that what he saw on the internet was the price situation as at 2005 which Would not contain maintenance and training costs factored in for many of the contracts in issue.

He stated that in 2005 he had about 3 years experience in procurement and that the contract documents relied on by him were available but not produced in court.

Ho further stated that the total yardstick for assessing the contract prices was provided by PW6 and that he personally visited the site of agenda item 13 of exhibit D2 with PW3.

He agreed that he was not the sole electrical engineer in the committee and did not work with exhibit D2 or any minutes or document prepared by the board but instead used the bill of quantities and contract award papers.

Further crossexamination for the 2nd defendant he stated that he did not know the capacity in which the defendants were charged or whether they were also NPA contractors. He instead that his task in the committee included verification of prices.

Cross-examined further for the 3rd defendant he agreed that appraisal officers in NPA fixed prices and not the board.

Learned counsel for the 4th and 5th defendants adopted previous cross-examinations of the other counsel and in answer to the additional cross-examination for the 6th defendant he stated that the inflation of item 4 in exhibit P1A Is included in the report and that he was not aware of the prices approved by the board.

When re-examined he stated that he limited his search on the internet to prices and did not consider staff training and maintenance.

With the consent of all defence counsel PW3 was recalled by the prosecution and he tendered the extra judicial statements made to the EFCC by the 2nd defendant and they were admitted as exhibits P19 and P20 respectively.

He was not cross-examined by all the defence counsel and with his evidence this prosecution closed its case.

The defence opted to call evidence and the 1st defendant testified from the witness box as the sole defence witness.

He is Chief Olabode George an engineer and company director who described himself as a politician by vocation.

In his evidence in chief he traced his academic background and professional experience in the Nigerian Navy until his retirement and his political career in civil life afterwards.

From 2001 to 2003 he was the Chairman of the Board of directors of the NPA and the other defendants were some of the director who served with him on this said board. He listed those who served as lumbers of his board including PW4 Who were however left out of the present trial by the prosecution.

Oh being inaugurated they were briefed by the secretary of the board who gave them the enabling Act, standing orders of the board and, the approved expenditure limits. His perusal of the said enabling Act made it clear to him that the sole authority representing the government to which the board was answerable was the Minister of Transport. Using exhibit D4 as example he pointed out that the standard communication between the Minister of Transport and the NPA is through the Managing Director of the NPA.

He stated that he understood the counts dealing with alleged splitting of contracts and denied he or the board he was pan of, ever doing so. He used agenda 12 of exhibit D2 as an example to show how contracts were presented to the board by the executive director in charge of the user department with a recommendation based on the appraised price and eventually the resolution to award without splitting coming into the discussion.

He similarly denied the counts dealing with alleged inflation of contracts stating emphatically that no such act was undertaken by the board over which he presided as they never added to any recommended price.

He explained the functions of appraisal officers within the NPA stating that they had responsibilities for issues relating to consideration of quotations and recommendation of prices of items presented to the board for approval, the board had no responsibility to determine fair prices and only worked with recommended prices of management.

On allegations of awarding contracts beyond approval limits he stated once again that he understood the counts and explained what constituted the approval limits of the various contract awarding levels in the NPA based on the guidelines given to them on assumption of office and which still operated till date.

According to him, the responsibility for setting approval limits rested with the Minister of Transport in consultation with the President and that due to its commercial and sensitive nature, subject to the directives of the Minister, NPA had financial autonomy.

He was shown exhibit P3 arid he was emphatic that it was not the approval limit he received from the Minister of Transport and that he and the other defendants never got the said document whilst in office and never acknowledged receiving it. When PW4 brought a copy of the said circular to their attention, they felt it was irregular not having been forwarded under the hands of the Minister of Transport to the Managing Director and that it was administrative since it was signed by the Finance Minister.

When referred to the portion of exhibit D2, the board minutes where exhibit P3 was discussed, he stated that the said portion of the minutes was incorrect and gave his own version of what transpired at the said meeting.

He stated that no contract was awarded at the meeting where exhibit P3 was circulated and discussed and no response was received to their letter to the Minister of Transport on the said exhibit P3 asking for clarifications as implementation would have crippled the NPA considering its complex nature and the highly intensive expenditure profile.

He explained steps taken by the board to secure mobilization fees approved on contracts and denied ever receiving exhibit P2. He also denied any conspiracy to disobey lawful instructions as alleged.

Under cross-examination for the 2nd defendant he explained the complex and international implications of the operations of the NPA and the expected role of the board under the NPA Act.

He gave the names of other members of the board who were left out of the charge by the prosecution including PW4 who according to him never objected to any of their decisions.

He was shown exhibit P3 and he pointed out that it has the stamp of the Federal Ministry of Water Resources insisting that the 2nd defendant never received any such document to his knowledge. He further stated that no other contract was approved after exhibit P3 was received and discussed and that exhibit D4 which they relied on came from the Minister of Transport and preceded the appointment of all the defendants to the NPA board and also conformed with exhibit D6 the brief from the legal adviser of the board and exhibit D5 which was still in use in NPA as at 2008.

He stated that the board did not confer a unilateral approval limit on itself and that the reasons adduced for not complying with exhibit P3 were genuine.

He denied all the counts and insisted that the board in which all the defendants served never inflated nor split any contract as alleged and made copious references to the minutes.

Further cross-examined for the 3rd defendant he explained the processes a contract would have passed through from the user department before getting to the board for approval asserting that the board did not appraise prices and never engaged in contract splitting or inflation.

(Vol.10 No.5) ADEYEMO V. GOV. LAGOS (scanned)

2009-11-05T20:16:00.000-08:00

(Vol.10 No.4) BUARI V. COMM. FOR FINANCE LAGOS

2009-11-05T19:56:00.000-08:00

Oshodi.J

IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT IKEJA
BEFORE HON. JUSTICE O.H. OSHODI
JUDGE
COURT NO 32. GENERAL CIVIL, REVENUE AND MORTGAGE
DIVISIONS
TODAY WEDNESDAY THE 4TH DAY OF FEBRUARY 2008

SUIT NO. ID/127M/2008

BETWEEN:

1. LUKMAN BUARI
2. LADI FAGBENJA ... CLAIMANTS

AND

1. COMMISSIONER FOR FINANCE LAGOS STATE
2. LAGOS STATE INTERNAL REVENUE SERVICE
3. THE ATTORNEY GENERAL OF LAGOS STATE ... DEFENDANTS

Adebayo Haroun for the 1st & 3rd Defendants.
No appearance for 2nd Defendant.
No appearance for Claimant.

JUDGMENT

This Judgment was to have been delivered on Monday, 1st December 2008, but for the strike embarked upon by the staff of the Judiciary. The Court is fully aware of the Constitutional requirement as contained in section 294 (1). The only reason why the Judgment was not delivered as scheduled is for the reason stated above. It is the candid view and opinion of the Court that no miscarriage of justice will be suffered by any of the parties herein.

The Claimants herein commenced this suit by causing to be filed an Originating Summons dated 25th February 2008, but sealed on 27th February 2008. By the Originating Summons, hereinafter referred to as the 'application', the Claimants seek for the determination of the following questions:

1. "Whether by virtue of Section 4,5, and item 59 of the Exclusive legislative fist in the 1999 constitution the administration and collection of Personal Income Tax is within the exclusive Legislative and Executive jurisdiction of the Federal Government or State Government".

2. "Whether by virtue of combined effect of Sections 2,8,25,26,59 and 68 of the Federal Inland Revenue Service (Establishment) Act 2007, the Defendants has (sic) the right to assess, collect and or enforce the payment of the Claimants' Personal Income Tax contrary to the provisions of the Act herein cited".

3. "Whether by virtue of provision of sections 2 and 68 of the Federal Inland Revenue Service (Establishment) Act 2007, the Claimants ate obliged or liable to payment of Personal Income Tax to the Lagos State Internal Revenue Service (the 2nd Defendant)".

The Claimants, by the application, are seeking for the following reliefs:
1. "A Declaration that by virtue Sections 4 & 5 and item 59 of the Exclusive Legislative list in the 1999 constitution, administration and collection of Personal Income Tax is with the exclusive Legislative and Executive jurisdiction of the Federal Government and not the State Government".

2. "A Declaration that by virtue of the provisions of Section 2, 8, 25, 26, 59 and 68 of the Federal Inland Revenue Service (Establishment) Act 2007 the Defendants has (sic) no right or power to assess, collect, review and enforce payment of Income Tax against the Claimants".

3. "A Declaration that by virtue of the provisions of Sections 2,8,25,26,59 and 68 of the Federal Inland Revenue Service (Establishment) Act 2007, the Claimant (sic) is not obliged or liable to payment of Income Tax to the 2nd Defendant (the Lagos State Internal Revenue Service) as demanded".

4. "A Declaration that the public notice published by the Defendants in the Punch Newspaper of 31st of January 2008, in Introducing its self assessment procedure of Personal Income Tax to be used for all tax payers in Lagos State including the Claimants as to payment of their Tax to the 2nd Defendant in contravention of the provisions of Federal Inland Revenue Act 2007, is illegal, null and void".

5. Perpetual Injunction restraining the Defendants, their agents, servant (sic) and howsoever from assessing, collecting or enforcing payment of Income Tax against the Claimants".

6. "Cost of this action".

In support of the application is a 23 paragraphed affidavit deposed to by the 15t Claimant. A document, which is a copy of a self assessment guide, is attached to the affidavit as exhibit. A written address dated 25th February 2008, raising 3 issues for determination, was also filed along with the application.

Upon being served, the 2nd Defendant caused to be filed a memorandum of appearance and later on filed a Notice of Preliminary Objection dated 22nd May 2008. This Notice of Preliminary Objection was on 18th September 2008 withdrawn by learned counsel for the 2nd Defendant. To the application, a counter affidavit of 12 paragraphs deposed to by one Oduwole Gbemisola, a legal officer with the 2nd Defendant, was filed challenging the application. To this counter affidavit, a written address, dated 22nd May 2008, in which the objection was considered and the issues raised by the Claimants in their written address were argued upon, was filed.

The 1st & 3rd Defendants, after being granted leave, filed a joint counter affidavit to the application deposed to by one Olorunnisomo Tolu, a Senior State Counsel in the Chambers of the 3rd Defendant. A document, probably generated from the internet, is attached to this counter affidavit as exhibit. A written address in which 2 issues are raised was filed along with the counter affidavit.

Interestingly, these latter set of Defendants, filed a 'Counter-Claim' against the Claimants. The Counter-Claim is dated 23rd May 2008. In the Counter-claim, these set of Defendants are seeking as follows:

1. "A Declaration that the provisions of sections 2, 8,25,26, 59 and 68 of the Federal Inland Revenue Service (FIRS) Act 2007 are inconsistent with the provisions of Section 4 (2) and (4) and Item D Paragraph 7 of Part II of the 2nd Schedule of the Constitution of Nigeria 1999 and therefore invalid, null and void".

2. "A Declaration that to the extent of taking away the taxing power or right of the State Government to assess, collect and enforce payment of tax on income or profit of persons resident in Lagos State (except personnel of Armed Forces Police Force and Ministry of Foreign Affairs), the Federal Inland Revenue Service (FIRS) Act 2007 is a gross violation of the established principle of fiscal Federalism in the constitution of Nigeria 1999 and therefore null and void".

3. "A Declaration that to the extent of taking away the tasking (sic) power or right of the State Government to assess, collect and enforce payment of tax on capital gain and stamp duty on persons and non corporate bodies resident in Lagos State, the Federal Inland Revenue Service (FIRS) Act 2007 is a gross violation of the established principle of fiscal federalism in the constitution of Nigeria 1999 and therefore null and void".

4. "A Declaration that the Claimants being residents in Lagos State are obliged to continue to comply with the directives of the Defendants to pay their income tax to the State Government and no other body".

5. "A Declaration that the Personal Income Tax Act Decree 104 of 1993 NOW Cap P8 Laws of the Federation of Nigeria 2004 is an existing Law valid, subsisting and binding on the Claimant (sic)".

6. "A Declaration that by virtue of the provisions of the Constitution of Nigeria 1999 Personal Income Tax Act, Capital Gain Tax Act and Stamp Duty Act, the Defendant (sic) have the right and power to assess, collect, review and enforce payment of income tax, capital gain tax and stamp duty on individuals and non-corporate bodies resident in Lagos State including the Claimants".

On the 18th September 2008, the application was formally moved. In moving the application, learned counsel to the Claimants, O. Ibrahim Esq.; referred to the reliefs in the application, the contents of the affidavit in support together with the exhibit attached and adopted his written address. Learned counsel then urged the Court to grant the application. After the submission of learned counsel, the Court then directed him to address the Court as to the issue of the locus standi of the Claimants. In his short reply or submission, learned counsel referred to paragraphs 16,17 & 19 of the affidavit in support.

In objecting to the application, learned counsel to the 1st & 3rd Defendant, Lawal Pedro S.A.N. referred to the contents of the counter affidavit filed for these Defendants and adopted his written submission. Learned S.A.N. then withdrew reliefs 2 & 3 as appearing in the Counter-Claim. On the propriety of the Counter-claim, that is, whether such a procedure is appropriate where the suit is commenced using the Originating Summons procedure, learned S.A.N. relied on the decision in PEENOCK V HOTEL PRESIDENTIAL (1982) 12 SC PG 1.

It is submitted on behalf of the 1st & 3rd Defendants, with reference to issue 1 raised by the Claimants, that where there is a law that deals with a general subject, tike the FIRS Act 2007 and another law with a particular subject, like the Personal Income Tax Law, the latter will prevail. Reliance is placed on AQUA LTD V ONDO S.S.C. (1988) 4 NWLR PT 91 PG 622 @ 641 – 642 and CROWN STAR & CO. LTDV THE VESSEL, M.V. VALI (2000) 1 NWLR PT 637 PG 37 @ 60.

On issue 2, it is submitted that the word "may" in line 1 of item D of paragraph 7 of Concurrent Legislative List should be read to mean "shall" as imposing duties on the National Assembly to vest power of assessment and collection of Personal Income Tax Act in the State. Learned S.A.N then referred to the decision in RABIU V GOVERNMENT OF KANO STATE (1989) 4 NWLR PT 117 PG 517 and urged the Court to dismiss the application.

On her on part, learned counsel to the 2nd Defendant, Mrs. F. A. Afolayan, referred to the contents of the counter affidavit filed for the 2nd Defendant and adopted her written address urging the Court to dismiss the case.

At the conclusion of addresses by learned counsels present, the Court then asked whether it was procedural permissible for a party to file a counter-claim in an action begun by way of Originating Summons. To this question, learned S.A.N contended that an Originating Summons, by the Rules of Court, is an Originating process, which calls for defence. Learned counsel for the 2nd Defendant aligned herself with the contention of Mr. Pedro S.A.N, while learned counsel to the Claimants simply told the Court that he had no problem with the counter-claim.

It must be stated that after conclusion of addresses, and the suit had been adjourned for Judgment, a correspondence dated 9th October 2008, written by learned counsel to the 1st & 3rd Defendants was brought to the attention of the Court. In this written correspondence, further authorities were brought to the attention of the Court, especially on the interpretation of the word "may" as appearing in Statutes and the proprietness of filing a counter-claim to an action began by way of Originating Summons.

The Court has read the contents of the affidavits filed in respect of the application. The Court has also read the contents of the written submissions filed also in respect of the application. These written submissions are herewith incorporated into this Ruling with specific reference made to them when the need arises. However, before going on into the merit or demerit of this action, together with the counter-claim, the Court will like to make an observation.

As stated above, this action was commenced by way of Originating Summons with an affidavit in support. The 1st & 3rd Defendants filed a counter-claim. It is noted that the Claimants did not file any defence to the counter-claim, nor did the 1st & 3rd Defendants support the counter-claim with any form of pleadings!

To this Court, the critical issue that must first be determined is whether the Claimants have shown any locus standi to seek the reliefs sought for. This issue was raised by the 2nd Defendant by way of preliminary objection, which was withdrawn and treated in the written address filed along with its counter affidavit. At the conclusion of addresses, the Court suo motto raised this issue of locus standi. Learned counsel to the Claimants referred to paragraphs 16,17 &19 of the affidavit in support to show the locus of the Claimants,

In EJIWUNMI V COSTAIN (W.A.) PLC (1998) 12 NWLR PT 576 PG 149, it is held that the first way to determine whether a Claimant has the necessary capacity to institute the action is to examine the statement of claim and see if he has any enforceable connection with the subject matter. There must be a nexus between the Claimant and the disclosed cause of action concerning his rights or obligations which has been breached or threatened to be violated. Further, it is held that the term locus standi denotes the legal capacity to institute proceedings in a court of law or tribunal to enforce a right recognized by law. It is the right to appear before a court to prosecute or defend an action affecting a legal right. The best way to determine whether the Claimant has the necessary capacity to institute this action is to examine the statement of claim and see if he has any enforceable connection with the subject matter. To summarize, there must be a nexus between the Claimants and the Defendants and the disclosed cause of action concerning their rights and obligations which has been breached or threatened to be violated.

The Court of Appeal in AGWARAMGBO V UBN (2001) 4 NWLR PT 702 PG 1, held that the meaning of locus standi denotes the legal capacity to institute proceedings in a court. The fundamental aspect of locus standi is that it focuses on the capacity of the party seeking to present his complaint before a court of law and not on the issues he wishes to have adjudicated. The question whether or not a Claimant has locus standi is determinable from the totality of all the averments in his statement of claim. See also WILLIAMS VDAWODU (1988) 4 NWLR PT 87 PG 189 @ 192 and OLUBODUN VLAWAL (2008) 9 MJSC PG 1.

With these statements of law in mind, an examination of the affidavit in support now becomes imperative. As stated, the 1st Claimant deposed to the affidavit in support. In the affidavit, the deponent stated that before the commencement of the Federal Inland Revenue Service (Establishment) Act 2007, he and the other Claimant had been paying their Personal Income Tax as at when due to the Lagos State Government. He however failed to exhibit proof of this assertion. The deponent then reproduced the provisions of the Federal Inland Revenue Service (Establishment) Act 2007 and the Constitution and further deposed that on 31st January 2008, the 2nd Defendant put an advert in the Punch Newspaper, exhibit "A", and that by virtue of the Federal Inland Revenue Service (Establishment) Act 2007, he and the 2nd Claimant fall within the category of people who must pay their taxes to the Federal Inland Revenue Service on demand. How they fall into this category is not stated!

This brief recount of the deposition of the 1st Claimant is what gives the Claimants, 2 in number in this action, the locus standi to institute this action, jointly, as submitted by their learned counsel.

Now, nowhere in the affidavit did any of the Claimants deposed to the fact that they had paid their personal income tax as at when due. Proof of payment of such income tax is kept away from the view of the Court. None of the Claimants deposed that they had been assessed by the Federal Inland Revenue Service, and that they had paid their current taxes. None of the Claimants deposed that the 2nd Defendant had sent them any assessment to which they are contesting. But their claim to fame is that they saw an advert in the newspapers, and it is this advert that gives them a right of action in this regard!

With respect to learned counsel to the Claimants, the Claimants have not shown any nexus between them and the disclosed cause of action concerning their rights or obligations which has been breached or threatened to be violated. Reading an advert in the newspaper does not confer them any locus standi to bring this action. The question to ask is what capacity are the Claimants bringing this action? They have not proved that they are tax payers, or tax compliant, as nothing to this effect is before the Court.

In the written address filed on behalf of the Claimants, their learned counsel talked about 'double taxation'. However, how he arrived at that suggestion is not laid before the Court. It is one thing to submit or contend, it is another thing to rest submissions and contentions on hard proof. For the avoidance of repetition, what other taxes have the Claimants paid, in which they want to avoid double taxation? A far as the Court is concerned, none. They are the ones to produce evidence of payment of taxes, and it is not for the Court to assume that indeed, these Claimants are tax compliant!

The 2nd Defendant, in the counter affidavit, paragraph 3 thereof, deposed that these Claimants have not paid any tax to the Government of Lagos State and neither have they paid to the Federal Government. This deposition was not challenged or controverted by any of the Claimants. Further, the 2nd Defendant deposed that the Federal Inland Revenue Service has not assessed or demanded income tax from the Claimants. This deposition was also not challenged or refuted. It is trite that a fact in an affidavit not challenged or controverted is presumed to be correct.

As rightly submitted by learned counsel to the 2nd Defendant, in paragraph 2.3 of the written address, the Claimants have not disclosed any fact concerning their interest, status and or injury suffered in relation to the acts or omissions of the 2nd Defendant or have they shown how the advert affected or applied to them.

With these findings the Court holds that the Claimants have no locus standi to institute this present action.

The next issue for consideration is the appropriateness of the counter-claim filed by the 1st & 3rd Defendants. As stated, the 1st & 3rd Defendants did not file any 'pleading' to put flesh to their claims. Also, the Claimants did not file any 'pleading' or defence to the counter-claim. What is just before the Court are claims or reliefs being sought for without any fact supporting them.

It is trite that a counter-claim is a separate action to the main claim. There is nowhere in our Rules of Court that permits the filing of a counter-claim in an action began by way of Originating Summons. Learned S.A.N., in his submissions referred the Court to section 2 of the High Court of Lagos State (Civil Procedure) Rules 2004. I think he means High Court of Lagos State (Civil Procedure) Law 2004, and not 'Rules'.

By the provision of this section, the Court is empowered to adopt such procedure as will in its view do substantial justice between the parties concerned where no adequate provisions are made in the Rules, (Italics and underlining mine for emphasis).

Learned S.A.N. then made reference to Order 28 Rule 7 of the Rules of the Supreme Court, England and also Order 40 Rule 6 of the Federal High Court (Civil Procedure) Rules 2000.

To this Court, notwithstanding the urging of learned S.A.N, the procedure adopted by the 1st & 3rd Defendants is not permissible by our Rules of Court. By Order 17 Rule 16 of our Rules of Court, a Respondent to an Originating Summons shall file a counter affidavit together with all the exhibits he intends to rely upon and a written address within 21 days after service of the Originating Summons. This provision did not talk about any 'counter-claim' in an Originating Summons proceeding. Further, Order 17 Rules 6 & 7 provides for counter-claim. A close reading of these rules will clarify the issue that a counter-claim, which is an independent action, always follows a statement of defence and not an affidavit, be it counter affidavit.

Now, in my view, it will be improper to allow the procedure adopted by learned S.A.N. This is more so that the Rules of the Supreme Court England, which is basically the same as that of the Federal High Court, he relies upon gives the Court the discretion to Order the counter-claim to be struck out or tried separately. Further, as stated above, there are no facts or pleadings to support the reliefs or claims being sought in the counter-claim.

Another reason why the counter-claim is incompetent is that the proper parties for the just determination of the reliefs sought are not before the Court.

The proper parties to answer the live issues arising out of prayers 1,4,5 & 6, the 2nd & 3rd prayers having been withdrawn, of the counter-claim are not before the Court. The 1st & 3rd Defendants want the Court to declare some sections of an Act of the National Assembly invalid, null and void. The National Assembly or A.G Federation or the Federal Inland Revenue Service are not joined as Defendants to the counter-claim. These set of Defendants also want the Court to declare a Law of a State valid and a blanket declaration that the Claimants are to pay their income taxes to Lagos State, when there in nothing before the Court that these Claimants are actually within the tax area of Lagos State. On this point it should be mentioned that the Punch Newspaper in not a local newspaper confined within Lagos State.

In P.N. UDOH TRADING COMPANY LIMITED VABERE (2001) 11 NWLR PT 723 PG 114, the Supreme Court held, while referring to the decision in PEENOK INVESTMENTS LTD V HOTEL PRESIDENTIAL (1982) 12 SC 1, that although a judgment creates law, such law is only between parties to the litigation and their privies, and not any party outside these group.

Further in OKUMU OIL PALM COMPANY LIMITED V ISERHIENRHIEN (2001) 6 NWLR PG 660, the apex Court held that a person not a party to an action (or privy) would not be bound by the result of that action. This being the case, the Court finds and holds that the counter-claim is incompetent.

In the final analysis, the Court holds that the Claimants have no locus standi to institute this action as formulated and that the counter-claim of the 1st & 3rd Defendants is incompetent. Accordingly, the Originating Summons is hereby dismissed. The counter-claim is hereby struck out.

Hon. Justice O. H. Oshodi
Judge

(Vol.10 No.3) OGUNBANKE V. FALASE

2009-11-05T19:49:00.000-08:00

IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT COURT NO. 48 (LANDS DIVISION) IKEJA
TODAY TUESDAY THE 29TH DAY OF SEPTEMBER, 2009
BEFORE THE HONOURABLE JUSTICE L. B. LAWAL-AKAPO - JUDGE

SUIT NO. ID/168M/09

BETWEEN:

MR. ABAYOMI OLAJIDE OGUNBANKE CLAIMANT/RESPONDENT

AND

1. WING COMMANDER TUNDE FALASE
(Attorney of David Hughes Family)
2. WAHAB OJUOLAPE DEFENDANTS/APPLICANTS
3. BIODUNOLAPDE
4. DR. ONYEMA AKACHUKWU

RULING

By Originating Summons dated 4th day of March, 2009 brought pursuant to Order 53 Rules 1 (2) & 2 of the High Court of Lagos State (Civil Procedure) Rules 2004, the Applicant is seeking recovery of the landed property situate at No. 9, Ogunbanke Street, Funsho Owoyemi Estate, Ijaiye Ojokoro, Lagos State on the ground that he is entitled to possession and that the person (s) in occupation are without his license or consent.

Arguing the application. Learned Counsel to the Applicant, Mr. 0. A. Ibiayo relied on his 27-paragraph affidavit sworn to on 4th day of March, 2009 and the 8 exhibits attached thereto. He relied on the Reply Affidavit of 11-paragraph sworn to on 6th day of July, 2009. He relied on the Written Address to the Originating Summons dated 4th day of March, 2009 and a Reply Address dated 6th day of July, 2009 and filed the same day. He adopted the contents of the Written Address and urged the court to grant the reliefs contained in the Summons. In opposition. Prince Farombi, Learned Counsel to the 1st - 3rd Defendants relied on his 29-paragraph Counter Affidavit dated 14th day of April, 2009 and one exhibit. He relied on his Written Address dated 14th day of April, 2009 filed the same day. He submitted that the Applicant's Reply Affidavit dated 6th day of July, 2009 was filed outside the statutory 7 days period and as such should be discountenanced. He cited in support of that contention Order 33 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2004. He contended further that the Reply Affidavit contained facts outside the 1st - 3rd Defendants' Counter Affidavit and whereas it is supposed to be a Reply to the said Counter Affidavit. He argued that the averments contained therein are legal arguments and conclusions and that it violates Section 87 of the Evidence Act. He submitted that the Written Address in support of the Reply which ought to be points of law are on facts. According to him, that is in breach of Order 39 Rule 1 (4) of the High Court of Lagos State (Civil Procedure) Rules 2004. He argued that exhibits A009 - A0011 attached to the Reply Affidavit have no bearing to the facts of this case. He urged the court to dismiss the application with substantial cost.

Still, in opposition to the application, Mrs. Onyebuchukwu Learned Counsel to the 4th Defendant aligned herself with the arguments preferred by Prince Farombi, Counsel to the 1st - 3rd Defendants. She relied on her 9-paragraph Counter Affidavit sworn to on 25th day of June, 2009. She stated that she did not file a Written Address in support other Counter Affidavit. Replying on points of law, Mr. Ibiayo submitted that as regards on irregular filing of an affidavit or process, failure to regularise will not invalid or an otherwise valid process. He referred to Order 5 Rule 1 (2) of the 2004 Rules.

I have read the processes filed and written arguments for and against the application. I have also listened to the oral arguments preferred by Learned Counsel on both sides in exposition of their Written Briefs. I shall start with the position taken by Learned Counsel to the 4th Defendant Mrs. Onyebuchukwu. Order 31 captioned "FILING OF WRITTEN ADDRESS"
Order 31 Rule 1 provides:
Order 31 Rule 1: "This order shall apply to ail applications and final addresses."
Order 39 Rules 1-3 provides:-
(1) "Where by these rules any application is authorised to be made to a Judge, such application shall be made by motion which may be supported by affidavit and shall state under what rule of Court or Law the application is brought. Every motion shall be served within 5 days of filing.

(2) Every such application shall be accompanied by a written address in support of the relief sought.

(3) Where the other party intends to oppose the application, he shall within 7 days of the service on him of such application, file his written address and may accompany it with a counter affidavit."

The combined effect of these two provisions is that a position taken in respect of an application must be supported by a Written Address and that if it is not so supported, such a stance should be jettisoned or disregarded. I therefore jettisoned the Counter Affidavit filed by the Counsel to the 4th Defendant in opposition to the application.

The crux of this matter is a claim of proprietary or possessory right over what the Applicant referred to as "No. 9, Ogunbanke Street, Funsho Owoyemi Estate, Ijaiye Ojokoro, Lagos." The Applicant supports his claim with a Deed of Assignment which has annexed to it a Survey Plan which document is marked exhibit A0011. The property referred to in the Deed of Assignment reads: "ALL THAT piece or parcel of land situate, lying and being at Ijaiye Ojokoro, Agege in the Agege Local Government Area of Lagos State measuring approximately 553.252 square metres more particularly described and delineated in RED in Plan No. BOP/LA/92/3347 dated 25th day of August, 1992 drawn by S. A. Oluwoye, Licensed Surveyor." The Survey Plan in turn referred to the property as being at "Ijaiye Ojokoro Off Lagos - Abeokuta Expressway, Agege Local Government Area of Lagos State." The 1st - 3rd Defendants herein simply referred to as the 1st set of Defendants in paragraph 2 of their Counter Affidavit avers as follows:-
"2 That contrary to paragraph 1 of the affidavit in support of the originating summons, there is no known street as "Ogunbanke Street, Funsho Owoyemi Estate" as the street where the subject matter of this case is situated is within David Hughes Estate and has not been named after any individual"

The Applicant in paragraphs 11 — 15 of his affidavit in support conceded that there was a concluded suit in Suit No. ID/I 11/84 - Chief G. Sanni Adu vs. Mr. Hughes between his predecessor-in-title and the person from who the 1st - 3rd Respondents are claiming title (i. e. Estate of David Hughes). The Applicant went further and exhibited the said judgment of LONGE J. as Exhibit A0018.

Paragraphs 11-15 of the Applicant's affidavit are very germane. It reads:-
"11. In late 1995, it came to my vendors the Ojugbele Adetan lyanru Family of Ipaja Road, Magbon, Orile Agege, Lagos had instituted Suit No. ID/111/84 - Chief G. Sanni & Ors. Vs. Mr. Hughes & Anor Before the Lagos High Court, Ikeja Judicial Division, against the 1st Defendant's predecessor-in-title upon a claim in trespass and declaration of title to a vast area of land situate and being at Ojokoro Village, Agege, Lagos and depicted on Plan No. JLA01/90 of 14th January, 1990 admitted in evidence therein as Exhibit 2.

12. It further came to my attention that by a Judgment of Hon. Justice E. F. Longe of 19th July, 1991, the court gave judgment in favour of the Ojugbele Adetan laynru Family - as Plaintiff therein in the following terms;
"Therefore with regards the first relief being claimed by the Plaintiffs in their Writ of Summons, there will be judgment for the Plaintiffs for an Order of right to Certificate of Occupancy over the piece or parcel of land situate, lying and being at Ojokoro Village, Agege, and shown in exhibit 2 EXCLUDING that part or parcel of land marked RED ON THE SAID PLAN, WHICH IS NOW FOUND to belong to the Defendants as depicted in Exhibit 1C..."

"Finally the judgment of this court, that is the Plaintiffs succeed partially to the relief sought from this court, that is the Plaintiffs are entitled to the statutory right of occupancy in respect of that piece and parcel of land marked green in Exhibit 2 in this case EXCLUDING the area marked RED on the said Exhibit 2, because the area marked RED on the plan is found to belong to the defendants. That is the judgment of the court." (Pages 24 & 25 of judgment)

Now shown to me and marked Exhibit AOO/5 is a Certified True Copy of the said judgment.

13. I am aware that the on Appeal, the Court of Appeal per Oguntade JCA (as he then was) sustained/affirmed the decision of the High Court aforesaid and further found as follows:-

"....The lower court accepted that evidence. It was free to do so. The lower court did not make a declaration of title in favour of the Defendants. It only held that the defendants had shown that they had been in possession of the land of the land verged 'Red' in Exhibit 2 for a long time."

"There is my view a difference between stating that a person had shown that he was in possession of the land and that that person was the owner of the land. Indeed, the lower court did not have to make any pronouncement concerning the Defendant's ownership of the land since the Defendants never brought such a claim before the court." (See pages 12 & 13 of Court of Appeal Judgment)

Now shown to me and marked Exhibit AOO/6 is a Certified True Copy of the said Court of Appeal Judgment (Appeal No. CA/L/292/94).

14. I am also aware that the on Appeal, the Court of Appeal per Oguntade JCA (as he then was) sustained/affirmed the decision of the High Court aforesaid and further found as follows:-

"... The lower court accepted that evidence. It was free to do so. The lower court did not make a declaration of title in favour of the Defendants. It only held that the defendants had shown that they had been in possession of the land verged 'Red' in Exhibit 2 for a long time"
"There is my view a difference between stating that a person had shown that he was in possession of the land and that that person was the owner of the land. Indeed, the lower court did not have to make any pronouncement concerning the Defendant's ownership of the land since the Defendants never brought such a claim before the court." (See pages 12 & 13 of Court of Appeal Judgment)

Now shown to me and marked Exhibit AOO/6 is a Certified True Copy of the said Court of Appeal Judgment (Appeal No. CA/L/292/94).
15. I am further aware that no further appeal (s) was precipitated from the decision of the Court of Appeal aforesaid. Now shown to me and collectively marked ExhibitAOO/7 are Certified True Copy of the Orders of the Supreme Court of 24th January. & 15th June, 2000 and that of 29th April, 2002 evidencing this fact."

The Applicant in paragraph 21 of his affidavit averred that the 1st - 3rd Defendants has completed the construction work which he initiated in respect of the subject matter. The 1st - 3rd Defendants averred that the property in dispute belongs to the 2nd Defendant. They averred further in paragraph 21 of their Counter Affidavit that the 2nd Defendant has completed the property and has put in tenants in occupation. All of these are allegations and counter allegations. Flowing from above, there is therefore the need to determine:-

(i) The address description and identity of the property which is the subject matter of this action.
(ii) Who as between the Applicant and the 1st - 3rd Defendants own the property?
(iii) In whose favour as between the two contending parties is the judgment of LONGE J. in Suit No. ID/I 11/84 - Chief G. Sanni & Ors. Vs. Mr. Hughes & Anor. and the Court of Appeal Judgment in the same in Suit No. CA/L/292/94 which judgments were pleaded by both parties.
(iv) Who as between the Applicant and the 1st - 3rd Defendants is entitled to possession of the said property?
The questions that then arise for determination are:-
(i) Is Order 53 appropriate in the circumstances of this case?
(ii) Can the issues raised in this suit be dealt with on an Originating Summons?

On question one, Order 53 deal with summary possession for recovery of land occupied by squatters or persons without the owner's consent. From the averments in the Affidavit and Counter Affidavit it is evidently clear that the 1st - 3rd Defendants are not squatters and that this set of Defendants are known to the Applicant. I find as a fact and I hold that Order 53 is not applicable to the facts of this case.

On Issue No (ii) Originating Summons is Originating Summons generally is governed by the Provision of Order 3 Rule 5. It provides:-
"3. Any person claiming to be interested under a deed. Will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested."

The court in case of:
UNIVERSITY OF LAGOS VS. M F. AIGORO (1991) 3 NWLR (PT. 179) PG. 376 at 383 - 384
Awogu J. C. A. held:
"An originating Summons is therefore intended to be used in limited situations. It is ideal for construction and interpretation of documents. According to Kayode Eso, J. S. C. in National Bank of Nigeria & Anor. Vs. Lady Alakija & Anor. (1978) 9 - 10 S. C. 59 at 71:- "In other -words, it is our considered view that that originating summons should only be applicable in such circumstances as -where there is no dispute on questions of facts or the likelihood of such dispute. Where, for instance, the issue is to determine short questions of construction, and not matters of such controversy that the justice of the case would demand the settling of pleadings, originating summons could be applicable. For it is to be noted that originating summons is merely a method of proceedings and not one that is meant to enlarge the jurisdiction of the court. "

See also the cases of:-
i. OBASANYA VS. BABAFEMI
(2000) 15 NWLR (PT. 684) PG. 3630

ii. JTMOH VS. OLAWOYE
(2003) 20 NWLR (PT. 828) PG. 307

iii. INAKOJU VS. ADELEKE
(2007) 4 NWLR (PT. 1025) PG. 423 S. C.

iv. NATIONAL BANK OF NIGERIA VS. LADY ALAKIJA
(1978) 9 -10 SC 59 at 71.

v. NATIONAL BANK OF NIGERIA
VS.
LADY ALAKIJA & ANOR (1978) 9 -10 S. C. 59 at 71

From the averments contained in paragraphs 11 - 15 of the Applicant's affidavit and the averments contained in the 1st - 3rd Defendants' Counter Affidavit and the exhibits attached thereto it is clearly not in doubt that the proceedings between the parties are hostile in nature. It is the law that where the proceedings or suit between the parties is hostile in nature, the use or employment of originating summons is clearly inappropriate. - See

NIGERIAN RAILWAY CORPORATION
VS.
PATRICK NWANZE
(2008) 4 NWLR (PT. 1076) PG. 92 at 109

NDUKWU-ANYANWU J. C. A. at page 109 held:-

"The principal issue in this suit is -wrongful termination of employment. The learned counsel/or the respondent cannot succeed in hoodwinking this court to believe that the Fundamental Rights of the plaintiff/respondent is the principal issue.

It was indeed wrong for this suit to have been commenced by way of originating summons. This action is definitely hostile and commencement of this suit by originating summons was clearly inappropriate. "

Clearly and beyond any shadow of doubt the facts in this suit are matters of controversy (claimed and counter claims) which are disputed and which will as of necessity require setting out of pleadings and taking of evidence in order to resolve the dispute.

An aggrieved litigant should approach the court by employing proper procedure to ventilate his grievance.

I therefore find as a fact and I hold that the use of Originating Summons in the present case is grossly misplaced. In the result it is hereby ordered that the parties shall file and exchange pleadings within the time permitted by the Rules of this and take such other steps as may be necessary to have the matter heard on its merit.

L.B. LAWAL AKAPO
JUDGE
29/09/2009

(Vol.10 No.2) ODIGIE V. NBC

2009-11-05T19:38:00.000-08:00

(Vol.10 No.1) ADIGIE V. NBC

2009-11-05T19:32:00.000-08:00

IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION, 1KEJA.
TUESDAY THE 19TH DAY OF MAY 2009
BEFORE THE HONOURABLE
JUSTICE O. A. ADEFOPE-OKOJIE

SUITNO.LD/1911/2003

BETWEEN

MR.OSA ODIGIE } CLAIMANT
AND
NIGERIAN BOTTLING COMPANY PLC } DEFENDANT

Claimant present.
Defendant absent.
Oluwatosin Akanfe for Claimant.
No appearance for Defence.

JUDGMENT

The claim of the Claimant, by his Amended Statement of Claim dated 24/03/2004 is as follows:

"1. A declaration that the Defendant is contractually bound to the Claimant to apply and follow the procedure prescribed by the Defendant's Code of Conduct and Grievance Procedure which is part of its Staff Handbook.

2. A declaration that the Claimant cannot be validly and lawfully dismissed from the employment of the Defendant except in accordance with the disciplinary process provided for by the Defendant's Code of Conduct and Grievance Procedure which is part of its Staff Handbook.

3. Declaration that the Defendant's letter Ref. DHR/PFN/1904/114 dated the 7th day of February 2003 purporting to dismiss the Claimant from the employment of the Defendant, contravenes the Defendants Code of Conduct and Grievance Procedure, and violates the Claimant's right to fair hearing guaranteed by section 36 of the Constitution of Nigeria 1999, as well the rules of natural justice, and is therefore unlawful, null and void and of no effect whatsoever.

4. Order selling aside the said letter of summary dismissal

5. Declaration that the "summary dismissal" of the Claimant by the Defendant is illegal, unlawful, wrongful, null and void and of no effect whatsoever.

6. Declaration that the letter Ref. Dir-HR/PFN, 1904/113 dated the 13th day of January 2003 purporting to suspend the Claimant from the employment of the Defendant contravenes the Defendants Code of Conduct and Grievance Procedure, and violated the Claimant's right to fair hearing guaranteed by section
36 of the Constitution of Nigeria) 999, as well as the rules of natural justice, and is therefore unlawful, null and void and of no effect whatsoever.

7. Order setting aside the letter of suspension.

8. Order directing the Defendant to pay to the Claimant all his salaries and allowances from January 2003 until the day of Judgment, calculated at N923,366.00 per month.

9. Order of Injunction restraining the Defendant, together with its servant and agents from further interfering with the Claimant's quiet performance of his employment with the Defendant. IN THE ALTERNATIVE: ORDER directing the Defendant to;
(i) pay the Claimant the sum of N144,045,200.00 being his loss of earnings in salaries and allowances for the unexpired period of his employment; AND
(ii) to retire the Claimant with full benefits accruing at the age of 55; AND
(iii) to pay the Claimant the sum of N30,000.00 as retirement benefits, IN THE ALTERNATIVE DAMAGES in the sum of N200,000,000.00 (Two Hundred Million Naira) for wrongful and unlawful dismissal against the Defendant.

10. A declaration that the Defendant is not entitled to seize and appropriate to itself the Claimant's fixed deposit in the sum of N2.3 Million.

11. An order directing the Defendant to refund, forthwith, to the Claimant the sum of N2.3 Million with interest at the rate of 21% from 1st January 2003.

12. A declaration that the Defendant is not entitled to seize the Claimant's 406 Peugeot car Registration No. HS 578 KJA.

13. An order directing the Defendant to return, forthwith, to the Claimant the 406 Peugeot car Registration No. HS 578 KJA.

14. A further order directing (he Defendant to restore the said 406 Peugeot car to the state ft was before the seizure.

15. A declaration that the seizure of the Claimant's Allocation Paper dated 22nd August 2001 in respect of a plot of land (Block 54 Plot 15) at Isheri North is illegal, null and void.

16. An order directing the Defendant to return forthwith to the Claimant the Allocation Paper dated 22nd August 2001 and Payment Receipt in respect of a plot of land (Block 54 Plot 15) at Isheri North. "

The witnesses testified by deposition, in compliance with the High Court of Lagos State (Civil Procedure) Rules 2004. In proof of his claim, the Claimant was the sole witness.

The case of (he Claimant, briefly put, is (hat he was employed as a Production Manager with the Defendant, vide a fetter dated the 9"1 day of August 1993. He later held the positions of the Divisional Operations Manager and the Deputy Director of Operations. Lagos /North Divisions. Sometime in the month of December 2002, the new Ikeja Finance Manager of the Defendant discovered a fraud implicating one Mr. Babaasola Esan. The matter was reported to the Police for investigation.

In the course of investigation, the Claimant was, on 9th day of January 2003, invited by the police for interrogation and subsequently detained. Whilst still, in Police custody, he received a letter (Exhibit C7) signed by one Mr. Yemi Ade-John, the Defendant's Human Resources Manager suspending him from duty indefinitely without pay effective from 9th January 2003 until the case against him was "dispensed with".

On 4th February 2003 the Police Handwriting Analyst wrote a report (Exhibit C9), stating that all the eight cheques delivered to him by the police for analysis and allegedly used in the perpetration of the fraud against (he Defendant were spurious and a mere simulation of the Claimant's signature.

Upon his release from detention he resumed work on 14th February 2003 whereupon, he was served with Exhibits C7, and C8 being the letters of suspension and summary dismissal by Mr. Buki Jinadu (DW1). The dismissal was stated to be in accordance with Part 111 Section 18 of the Company's Staff Handbook.

He complained that he was severely beaten and tortured while in police custody and was made to sign off to the Defendant all his money in his bank accounts. He was also made to sign a document transferring to the Defendant the sums of N2.3 Million from a fixed deposit account at Zenith Bank maintained by himself and his wife, a staff of Central Bank, since 2001, weft before this incident and the sum of N79,000 in his account at Guaranty Trust Oank. The Defendant also seized his Peugeot 406 which he had purchased for the sum of N1.7 Million with the aid of a loan from Mr. Esan. The Defendant, in addition, seized his Allocation paper in respect of a parcel of land purchased by him from the Lagos State Government for the sum of N700,000. The proceeds of the fraud were never found in his account. On the contrary about N195 Million was recovered from Mr. Esan's account, while more than N20 Million was recovered from one of his (Mr. Esan's) accomplices,

The Claimant complained that lie was never queried verbally, or in writing in respect of any crime or allegation by the Defendant prior to the receipt of these letters. He was never invited to appear before any disciplinary panel or given any opportunity to reply to any allegation, contrary to the requirements of Exhibit C10, the Defendant's Code of Conduct and Grievances Procedure.

He contended that his dismissal from the employment of the Defendant is unconstitutional being in contravention of Section 36(8) of the Constitution, the Rules of Natural justice and the Defendant's contract with the Claimant as contained in the Code of Conduct and GrievanceProcedure (Exhibit C10) and the Defendant's Senior Staff Handbook (Exhibit C11), which documents, he said, form part of the contract of employment between him and the Defendant.

The Defendant called three witnesses in its defence. It agreed that the Claimant was in its employment as the Divisional Operations Manager and Deputy Director of Operations, Lagos/North division. While not disputing that it summarily dismissed the Claimant from its employment, it insisted that it was justified in the action it took in dismissing the Claimant.

The dismissal, they stated, was in line and pursuant to Section 16 of the Defendant's Senior Staff Handbook on "Rules, Regulations and Conditions of Employment" and on the basis of paragraph 12 of the Managerial Services Agreement dated the 2nd of March 1994.. The Defendant contended that its Code of Conduct and Grievance Procedure (Exhibit C 10) is separate and distinct from its Senior Staff Handbook on Rules, Regulations and Conditions of Employment (Exhibit C11) and as such it did not need to have been complied with in summarily dismissing the Claimant. They were justified in dismissing him in view of his improper handling and dealings with its finances by his act of distributing money and gifts collected from the Defendant's contractors by Mr. Babasola Esan, his subordinate, to the Management staff of the Defendant. They contended that the Claimant admitted this act in a statement to the police during his detention.

Upon conclusion of trial, written addresses were ordered to be filed and exchanged, preceded by the Defendant. The addresses were subsequently adopted in court.

In the Defendant's Address, Olutoyin Uko Esq formulated two main and three subsidiary issues for the determination of the Court as follows:
"(i) Whether the Defendant acting pursuant to the terms of its conditions of employment can summarily dismiss the Claimant on grounds of serious misconduct without affording (lie Claimant a formal hearing?
(ii) Whether the Defendant has established by credible evidence, the allegation of "Serious Misconduct" against the Claimant, justifying the Claimant's summary dismissal from its employment."

in issue one, learned counsel submitted that the relationship that existed between the claimant and the Defendant at all material times was one of master and servant. Where there is no statute or taw regulating how a contract of employment is to be determined as in this case, the terms of (fie written contracts between the parties will regulate how same is determined.

He contended that the Defendant is empowered by Exhibit C11, the Employee's Handbook, to summarily dismiss the Claimant without a hearing. Exhibit C10, the Code of Conduct and Grievance Procedure, he said, is a mere administrative guide to the Defendant on how to conduct the disciplinary procedure. There was thus no need to comply with Exhibit C10 before the Claimant's summary dismissal since the interim report of the police investigation conducted had indicted him. He urged the court to so hold.

On the 2nd issue, learned counsel submitted, based on the provisions of Exhibit C11 that it could be safely concluded that the Claimant was dismissed for serious misconduct. In an action for wrongful dismissal, where the employer alleges misconduct, the onus is oil the employer to prove the misconduct occasioning the dismissal and where such evidence is sufficiently adduced, the fact that the employee was not given a hearing before the dismissal would not preclude the employer from dismissing him.

He submitted that the four grounds stated by the Defendant for summarily dismissing the Claimant are (a) improper dealings of the Claimant in the Defendant's finances, in collecting N11.7 million and distributing it to management staff, (b) The act and conduct of the Claimant in collecting a loan of N1.4 million from his subordinate Mr. Babasola Esan to buy a car, the prime suspect having confessed that he as well as the Claimant are both beneficiaries of the fraud that took place between June and August 2002 (c) the findings of the investigations of the Nigerian Police Force dated 24th of January 2003 which heavily indicted the Claimant, (d) The Report of the independent analyst, Dr. Ndara Ekong, dated the 24th of March 2003, (Exhibit D1 & D2) both of which concluded that the Claimant signed 23 of the 41 cheques used in defrauding the Defendant.

He submitted that the above itemized acts of the Claimant constituted serious misconduct 9 entitling the Defendant to summarily dismiss the Claimant from its employment, ft is trite taw, he said, that there is no fixed rule of law that defines the degree of misconduct that will justify a dismissal. It is not the law, he further submitted that in a case of summary dismissal bordering on criminality, the Claimant must first be tried in a court before he could be dismissed. He urged the court to hold that the Defendant has established by credible evidence, the allegations of gross- misconduct against the Claimant, justifying his summary dismissal in the circumstances.

Even if the Claimant's dismissal was wrongful, the relief sought by the Claimant can not be sustained as the contract between the parties was one of master and servant. His dismissal could at best be wrongful and not unlawful. The only relief the Claimant is entitled to as damages, is the amount he would have been entitled to if he had been given proper notice as slated in his conflict of employment.

Counsel contended further that the onus is on an employee to plead in his Statement of Claim, his letter of appointment and contract of service stipulating the terms and conditions of his appointment. There was variance, he said, between the Claims of the Claimant as endorsed on his Writ and the Pay slip of Sept 2002 relied on by the Claimant, which .came after the promotion of May 22nd 2002. He therefore urged the court to discountenance the same and hold that the Claimant had not established his claim to the entitlement of N923,366.00 per month. All that the Claimant is entitled to is a month's salary as shown in Exhibit C12(1).

On the 2nd subsidiary issue, learned Counsel to the Defendant submitted that Exhibit C9, the Police Report, is a public document within the meaning of section 109 and being a public document it must of necessity be certified before being admissible in line with Sections, 111(1) & 112 of the Evidence Act. Being inadmissible, the document cannot constitute evidence, ft thus lacks probative value and ought to be expunged from the records.

Finally, on the 3rd subsidiary issue, learned counsel contended that paragraph 7,11,19,25,27,31 and 44 of the Claimant's Witness Statement on Oath deposed to on the 16th of January 2007 ought to be struck out on the ground that they constitute evidence of facts which were not pleaded in the Claimant's Amended Claim of 24th March 2004. Evidence of facts not pleaded goes to no issue and is therefore inadmissible. He urged the court to so hold and to dismiss the Claimant's claim in its entirety.

In his Written Address, Professor 0luwole Akanle formulated the following three (3) issues for the Court's determination;

"1. Whether on the proper construction of the Claimant's contract of service, the Defendant was entitled to summarily dismiss the Claimant without a disciplinary hearing as provided for in the Senior Staff Handbook on Rules, Regulations and Conditions of Employment and more particularly the Code of Conduct and
Grievance Procedure.

2. Whether on the evidence before the court the Claimant is guilty of serious misconduct as defined by the contract between the parties.

3. Whether the seizure by the Defendant of the Claimant's properties namely:
(i) the sum of N2,300,000.00 (Two Million, Three Hundred Thousand Naira) which the Claimant had lodged in his deposit account number 6022302659 with the Zenith International Bank and the sum of N79,000.00 (Seventy-Nine Thousand Naira) in the Claimant's account number 20201424134 with Guaranty Trust Bank.
(ii) Peugeot 406 car with Registration Number HS 578 KJA.
(iii) Allocation paper dated the 22nd day of August 2001 in respect of a plot of land known as Block 54 Plot 15 located in the Isheri North Scheme of the Lagos State Government is not unlawful and unconstitutional? "

On Issue 1, Claimant's counsel urged the court to consider the documents that form the Claimant's contract of employment/service to the Defendant, namely Exhibits, C1, C11, C10. D4 and C6. The only conclusion the Court could draw therefrom is that the Defendant failed to comply with the terms of the contract between them and that the claimant was wrongfully dismissed from the Defendant's employment. He contended that the Claimant was never given any opportunity of responding to any allegation of misconduct in line with the requirements of the Code of Conduct and Grievances Procedure, The Claimant's statement to the police wherein he admitted collecting various sums of money from Babasola Esan and the loan advance to him from the same Babasola Esan could not by any stretch of imagination amount to a hearing in satisfaction of the requirements of the claimant's contract of employment. The alleged admissions, he further said, were not made in reply to any query, inquiry or investigation as to whether or not the Claimant's conduct amounted to serious misconduct deserving summary dismissal.

He contended further that the alleged admission by the Claimant only came to the knowledge of the Defendant after the Claimant had been dismissed and not in the course of the hearing of the Claimant's case. The Defendant did not plead or show by evidence that it constituted any panel for the purpose of looking into any allegation against the Claimant. There is nothing, he said, in any of Exhibits C11, C10 and D4 that allows police investigation to be used as a substitute for the contractual documents.

Furthermore, it was wrong of the Defendant to have proceeded to issue Exhibit C8 while police investigation was stiff in progress. The Defendant ought to have awaited the outcome of the prosecution and conviction/acquittal before taking such step.

On the 2nd issue, (earned counsel for the Claimant referring the Court to the elements that must be present in the definition of acts that amount to gross misconduct, submitted that no allegation of serious misconduct has been proved, Exhibit C9, the result from the Forensic Department of the Police detailing the examination and comparison of specimen signatures of the Claimant and the 8 cheques said to have been or allegedly used in perpetrating the fraud,, are proof of this.

He contended that the Defendant's UW3, another handwriting expert, also admitted under Cross-Examination that the Signatures on 5 out of the 8 cheques allegedly used in the fraud are simulated forgeries of the Claimant's signature while the remaining 3 cheques were not among those given to him for examination, !n consequence the Claimant had not been proved to have undermined the confidence of his employer or worked against the interest of the Defendant.

On the second ground relied upon by the Defendant to justify the dismissal, that the Claimant collected a loan of 1.4 Million from Babasola Esan, he contended that at the time the Claimant collected the loan, fraudulent activities of Esan had not come to light, ft was usual among the staff of the Defendant to oblige one another with soft loans. Relying on the leading judgment of Lord Evershed in Laws V. London Chronicle (indicator Newspapers) Ltd, he submitted that for summary dismissal based on serious misconduct to be Justifiable, it must be .of such as to indicate a repudiation of the contract of service or one of its essential conditions by the servant. Borrowing of money from an employee, he said, cannot amount to grave or serious misconduct.

He contended further that the collection of the total sum of 11.7 Million by the Claimant for distribution to management staff was an afterthought by the Defendant. Exhibit C11, he said, does not state that collection of a gift by an employee is a misconduct Justifying summary dismissal.

Furthermore, these acts had been condoned by the Defendant in subsequently promoting the Claimant to a more senior position and sending letters of commendation to the Claimant for doing well. He referred the Court to Exhibits C5 & C6. These acts can therefore not be the basis for summary dismissal,

On the final basis, on which the Defendant premised the Claimant's dismissal, he submitted that the Defendant did not. lead evidence as to the number of cheques involved in the fraud and their particulars and as such, the imputation of serious misconduct on the Claimant on this ground must fail. He urged the court to so hold,

Finally, on the third issue raised, learned Counsel to the Clamant submitted that the Claimant has established that the Defendant seized his legitimately owned properties which violated Sections 43&44 of the Constitution of the Federal Republic of Nigeria,

On the contention of the Defendant that by section 9, and 111(1) of the Evidence Act, Exhibit C9 ought not be admitted since it is a public document, which ought to be certified before being admitted, learned counsel submitted that the Defendant’s argument is misconceived as the document is not a public document within the meaning of section 109 of the Act. He contended that an enquiry made by a police officer, which may or may not result in action is not within the ambit of this section.
On the argument that certain paragraphs of the Claimant’s Witness statements on oath should be struck out as containing evidence on facts not pleaded, he submitted that the requirement of the law is that it is material facts and not evidence that should be pleaded
TO BE CONTINUED…

In his Reply Address to the Claimant's Final Written Address, learned counsel to the Defendant observed that the Claimant's Final Address was not signed by any Legal Practitioner despite the fact that it emanated from a law Firm and not having been so signed, it is incompetent in law, he submitted. He urged the Court lo hold that in the absence of any Address from the Claimant in the circumstances, only the Defendant could he said to have any Final written Address before the court. The English case of Gunton V, London Borough relied on by the Claimant for the position that a wrongful dismissal of an employee did not put an end to the contract of service but its termination is merely of persuasive effect and can not bind the court. The law is that the only indemnity a wrongfully dismissed employee can get is measured in damages for the period of notice he was entitled to. He urged the court to dismiss the suit in its entirety.

The issues that I consider arise for determination in this suit are an amalgam of those raised by the parties. These issues are the following:
1. Whether the claimant was wrongfully dismissed and if so, what remedies are available to him.

Whether the Claimant is entitled to the prayers sought.
I shall take these issues together.

The Claimant has tendered letters of suspension and summary dismissal issued to him by
the Defendant.

The letter of suspension was tendered as Exhibit C7 and reads as follows:

"NIGERlAN BOTTLING CO. PLC
NBC HOUSE, EBUTEMETTA

MEMORANDUM

From; Director of Human Resources
NBC House, Ebute Metta

To: Mr. Osa Odigwe
NBC Plc
Division Office
Ikeja.

Ref.: Dir-HR./PFN.1904/113
Date: 13th January 2003

SUSPENSION:
Following your arrest by the Police on 9th January 2003 in connection with allegations of a
criminal offence, you are hereby suspended from duty indefinitely without pay
effective from 9th January 2003 until the case against you is dispensed with,

The Compensation and Benefits Manager is by copy of this letter advised to withhold
payment of your salary and transport allowance for the period of your suspension.

(Sgd,) ,

YEMIADE-JOHN

DIRECTOR OF HUMAN RESOURCES"

The letter of dismissal is Exhibit C8 and reads as follows:

"Nigerian Bottling Company Plc (RC 902)

D-HR/PFN/1904/114
7th February 2003

Mr.OsaOdtgwe
Division Office
NBC Plc
Ikeja
Lagos

Dear Sir

SUMMARY DISMISSAL

You are hereby dismissed from the services of the Company with effect from 9th January 2003 in accordance with Part III Section 18 of the Company's Staff Hand Book.

Consequently, you will be paid the following:
(a) BASIC SALARY/ALLOWANCES
These will be paid to you up to and including 8th January 2003.
(b) SENIOR STAFF PROVIDENT SCHEME
You will be paid your contributions to the scheme only.

Please note that any amount of money that you may be owing to this Company, or any of the sister Companies, through personal loan, purchases, etc., will be recovered from your entitlements. In the event that your entitlements cannot completely defray such indebtedness however, you will be required to take appropriate measures to settle the balance.

Kindly ensure to handover any property of the Company that may be in your possession including the Identity Card issued to you to the Managing Director, or his appointed representative.

Yours faithfully,
For: Nigerian Bottling Company Plc

(Sgd.)
YEMIADE-JOHN
DIRECTOR OF HUMAN RESOURCES”

As rightfully submitted by both counsel, the contract of service is the pivot or foundation upon which an employee must found his case. In a contract of service reduced into writing by the parties, the court will not look into any matter outside the terms stipulated and agreed between the parties, in determining the respective rights and obligations of the parties. See the case of Ibama v Shell Petroleum Development Company (Nig) Lid (2095) f7 NWLR Part 954 Page 364 at Page 379, per Mohammed JSC.

In an ordinary case of master and servant, if there is a written contract, the court must confine itself to it to interpret and understand the circumstances that regulate the rights and obligations of the parties. That is to say, the contract terms as a whole, including any other document incorporated into it by reference or any other method governing the relationship of the parties to the contract. See the case cited by the Defence counsel of Shelf Petroleum Development Co v Lawson-Jack (1998) 4 NWLR Part 545 Page 249 at 270-271 per Uwaifo JCA (as he then was).

In determining whether the Claimant has been wrongfully dismissed, I must confine myself to the terms that regulate the relationship between the parties.

The evidence of both parties is that the documents that regulate the Claimant's contract of employment are the following:

1. Claimant's letter of employment (Exhibit C 1).
2. Managerial Service Agreement (Exhibit D4).
3. Employee Hand Book for Senior Staff Management Staff and Staff Who Are Projection of Management (sic) (Exhibit D11).
4. Code of Conduct and Grievance Procedure (Exhibit C1O).

Meanwhile Exhibits C1, C10 and C11 were tendered by the Claimant, Exhibit 04 was tendered by Tunde Orukotan DW2, the Defendant's Employees Relation Manager.

On the issue of dismissal, Section 18 of the Employee Handbook for Senior Staff (Exhibit C 11) provides as follows;

"Employees who are found guilty of serious misconduct may be summarily dismissed without notice.

Serious misconduct writ include the following;
(a) Dereliction of duty;
(b) Falsifying any of the Company's records;
(c) Refusal to obey a lawful order;
(d) Stealing;
(e) Sleeping on Duty;
(f) Drunkenness or drug addiction;
(g) Misrepresentation of any facts or information required by and given to the Company;
(h) Fighting while on duty;
(i) Corruption or attempting corruption;
(j) Malicious damage to the Company's property;
(k) Conviction for any criminal act;
(l) Unauthorised and unjustified absence from duty for three consecutive days;
(m) Disloyalty, including failure to disclose any misconduct committed or about to be committed against the Company and known to the employee. These examples of serious misconduct are not exhaustive. Any conduct likely to. endanger the Company's property, well being and operation or the safety of others, may constitute serious misconduct.

Employees dismissed because of serious misconduct will receive their salaries up to the date of dismissal plus any earned leave in -accordance with the Conditions of Employment in this Handbooks. All other benefits of whatever nature shall be forfeited except his contributions (only) to the Junior Staff Retirement Benefits Scheme. "

Exhibit C10, the Defendant's Code of Conduct and Grievance Procedure, stipulates disciplinary procedures whereby infractions therein stated are addressed.

The explanation of Tunde Orukotan (DW2), under cross examination, on the applicability of Exhibit C10 to the Claimant's contract is that it is not all infractions that are dealt with under the Defendant's Code of Conduct. While the minor ones are dealt with under the Staff Handbook and an Administrative Panel set up, the more serious ones are reported to the Police. He claimed that the Claimant was dismissed as a result of the Police investigation and in line with the provision of the Staff Handbook. He agreed that the Defendant, in dismissing the Claimant did not follow the Staff Handbook.

The salient facts of this case, as deposed to by DW1, Buki Jinadu, the Corporate Security Manager of the Defendant, are that, following the detection of fraud in the Ikeja Branch by the new Finance Manager of the Branch, which branch was under the supervision of the Claimant, and the commencement of investigations by the Auditors, .Mr. Babasola Esan, the old Finance Manager of the Ikeja Branch absconded and went into hiding. It was discovered that a series of cheques issued over the period June to November 2002 amounting to over N200 Million and which were countersigned by the Claimant were used in defrauding the Defendant, A petition was written by the Defendant and Mr. Esan was arrested, Mr. Es-an confessed and implicated the Claimant as one of the prime beneficiaries.

While the Defendant alleged that the Claimant was never tortured but voluntarily admitted to being a prime beneficiary and also voluntarily handed over his Peugeot 406 and the sums of N2.3 Million in his deposit account and N79,000 in his current account as part of the money he embezzled, the Claimant denied being part of the fraud or that he signed any of the fraudulent cheques. He claimed he was tortured and that his vehicle, the sums into his account and the allocation of land to him were seized by the Defendant under torture by the Police.

Tile contention of the Defendant is that the "Result and' Comparison of Signature" issued by the Police, consequent upon then" investigation and which exonerated the Claimant as having signed the cheques, his signature having been forged, is that this contradicted the first report by the Police. The Claimant also must have interfered with the police investigation, he having been out on bail al the time. The subsequent report by Reverend Ekong, an independent writing analyst, indicted the Claimant.

While I agree with the Defence witness that the report of the hand writing analyst from the Police, Exhibit C9, exonerated the Claimant, the cross examination of the independent hand writing analyst. Reverend Ekong revealed that none of the fraudulent cheques were signed by the Claimant but were a simulation of his signature.

In effect, both handwriting analysts called in by the Defendant, I note. exonerated the Claimant of the fraud,

The counsel to the Defendant urges me not to give any weight to the Police Report, Exhibit C9, the same not having been certified. Not only do I find this request curious as DW1 had referred to this Report in Paragraph 13 and 14 of his Deposition, which Report, he said was in the List of Defendant's document's filed to be relied upon, Reverend Ekong admitted that the Claimant's signatures on the cheques used to defraud the Defendant were not his, but were forgeries. Thus even if I were to reject Exhibit C9, the evidence of DW3, based on his analysis of the disputed documents in Exhibits D1 and D2, have proved that the Claimant was not party to the fraud,

It is undoubtedly true that an employer is under no obligation to give reasons for terminating the employment of his employee. It is also true that it is not necessary that before a servant is dismissed he must be tried before a court of law where the accusation for gross misconduct bordering on criminality. See the case cited by the Defence of Olanrewaju v Afribank (Nig) Plc (2001) 13 NWLR Part 731 Page G91(SC).

It is also true that the Defendant was under no compulsion to try the Claimant before a court of law or indeed base its actions in dismissing the Claimant on the Police Report. Where, however, they seek to discipline him or summarily dismiss him, they are bound, I hold, to follow the procedure that they have agreed should govern the relationship between them. These procedures, they have admitted are as contained in Exhibits C11 and C10. Parof evidence to vary the applicability of these documents to the contract between the parties, as DW2, has sought to do, cannot be given, I hold. See Section 132 of the Evidence Act Cap E8 Laws of Lagos State. 2003.

The preface of Exhibit C10 states as follow:

"This document is an integral part of the Company Staff Handbook for Management and Junior Staff

In Exhibit C10, there have been procedures stipulated for addressing offences, including a number of warnings, facing of disciplinary panels before termination or dismissal can be effected. This was not shown to have been followed in this case.

The Defence counsel has argued that the Managerial Service Agreement (Exhibit D4) binding on both parties has stated in Paragraph 12 that the Claimant's employment may be determined without any notice to him in the event of any misconduct.

This paragraph states as follows;

"In case the Employee shall be guilty of dis-obedience, misconduct or neglect in the conduct of the duties assigned to him or if he shall willfully fail to observe any of his obligations herein the Company may immediately and without notice put an end to and determine this AGREEMENT.

An ordinary interpretation of this clause, which I am bound to give to it, is that the employer, in the case of misconduct can summarily dismiss ah employee. It is no authority for the proposition that in dismissing the employee, the procedures laid down in the contract of agreement between them should not be followed.

It has again been argued by the Defence counsel that the signature on the Claimant's Written Address is not known to law. Counsel to the Claimant has however argued that she signed the Written Address. She distinguished the authority cited by the Defence.

I agree with the Claimant's counsel, in her distinguishing of the case cited by the Defendant's counsel. The Claimant's Written Address even though it is stated to have prepared by "Oluwoie Akanle & Co", is signed "Olusina", who was the counsel that appeared in court on behalf of the Claimant on 28/1/2009 and on 19/2/09, the latter of which dales she adopted the Written Address filed by them. Her adoption of this Address, I hold, has intervened to validate the Written Address as hers.

The Defendant, following reports from Police and following the independent report of their hand writing analyst which reports exculpated the Claimant, appear to me to simply be seeking to indict the Claimant by all means.

Even if (he Claimant's conduct amounted to misconduct, the procedure agreed as binding between them should have been followed before he was dismissed, which was not done.

I accordingly hold the dismissal of the Claimant to be wrongful.

The Defendant has submitted in the alternative that the damages for wrongful dismissal is the amount the Claimant would have earned over the period of notice. This is indeed true, as held in the case cited by him of Chukwumah v Shell Petroleum (1993) 4 NWLR Part 289 Page 512 at 537 (SC). This, being a relationship of master and servant, not being a contract with statutory flavour, specific performance of the contract cannot be granted.

From the Claimant's letter of Employment (Exhibit C1), the period stipulated for determination of the contract by either of the parties is one month's notice or one month's salary in lieu of notice.

The Defendant has impugned the Claimant's breakdown. I shad thus use the breakdown given by the Defendant's witness (DW2) in his Statement on Oath, which sum is stated to be N4,075,146.89 per annum. The salary for one month, by my calculation is N339,595.574, which 1 award to him as salary in lieu of notice due to him.

The Defendant's counsel has asked me to strike out paragraphs 7,11,19, 25,27,31 and 44. of the Claimant's Statement on Oath as not having been supported by his readings, I find it unnecessary to deliberate on this issue as reference was not made by me to the facts deposed to therein, neither have those facts formed any of the decisions made by me.

With regard to the seizure of the Claimant's money and vehicle, the attitude of the Courts is aptly put In the case of Jacob Omman v. Darfington Ekpe (2000) 1 NWLR Part 641 Page 365 at 373 to 374 paragraph G-B.

"There Acholonu JCA (as he then was) had this to say:

"Now Nwanedo the learned counsel for the Respondent derided Exh 1 which he submitted was made in the Police form and the contents was made 4 full years before the action, under duress as it was made while the Respondent was in Police custody. It is most unfortunate that our citizens now use the Army and police personnel to collect debts from fellow business associates whether the debt is real or imaginary. Any documents signed in the presence of the police and relating to a civil claim shall be viewed with suspect particularly if the person against whom it will affect was in custody or under some detention or handicap that he cannot freely enter into a contract-what with enforcement officers breathing down his neck. Any document that seeks to establish the existence of a contractual relationship which takes place under the very watchful eyes of the police to whom a purely civil matter is brought to its attention to enforce or put a fear of God into the other side will certainly not be enforced as there is no consensus and is voidable. Exhibit 1 does not therefore avail the appellant", (sic)

In the present case, I hold that the Claimant's surrender of these documents was not voluntary. From the undisputed evidence of the Claimant, confirmed in paragraphs 10 to 12 of the Statement on Oath of Buki Jinadu (DW1), the Corporate Security Manager of the Defendant, the "surrender" of the sums in the fixed deposit and current account of the Claimant, together with his Peugeot 406 were made while the Claimant was in detention.

The Claimant has produced documents from Zenith Bank (Exhibits C16(1) to C16(3) giving the details of the Deposit Account in both his name and that of Kemi Odigie, presumably his wife, which account was opened since August 2001 in the sum of N1,923,893.15 to June 2002 when it rose to N2,341,922.31. This sum is clearly before the period of the fraud, which by the evidence of DW1, Buki Jinadu, was between June to November 2002.

The Claimant has also tendered his Letter of Allocation and receipts from the Lagos State Government (Exhibits C13) in respect of the allocation of land at Isheri North Residential Scheme, to Odigie Mrs. Oluwakemi Omobose, which documents, he said were seized by the Defendant in conjunction with the Police.

These documents, I have held, were taken from the Claimant under duress, in the absence of an order of court detaining these properties or giving the same over to the Defendant, the Defendant, I hold, has absolutely no right to detain these properties. These properties, including the sum in the Claimant's accounts shall be returned to him. On the question of the interest to be awarded on the fixed deposit account, though the Claimant seeks 21% per annum, the interest rate granted on the latest statement issued by Zenith Bank on the said deposit (Exhibit C16(3) is 18.5% per annum.

The Claimant, I hold, is entitled to be awarded interest, as the law is that where money is owing, and I add, withheld, and that other is driven to court, interest will be awarded from the time the amount is withheld. See National Bank v Savol West Africa (1W) 3 NWLR Part 333 Page 435. I accordingly hold that the Claimant is entitled to payment of Interest on the said deposit at the rate of 18.5% from the date the deposit was seized by the Defendant until the date of payment.

White it is not clear what date the deposit was seized by the Defendant or "surrendered" by the Claimant, it is not in dispute that it is a date prior to his letter of dismissal served on him on 14/2/2003, after he had resumed his employment. It is thus safe for me to grant interest with effect from 14th February 2003,

For all the reasons given by me above, while some of the reliefs sought are refused, the claim of the Claimant succeeds in the main. I find that the Defendant wrongfully dismissed the Claimant. Since the contract between the parties is an ordinary contract of employment with no statutory flavour, specific performance of the contract of service cannot be granted. The Claimant can also not be awarded salary or benefits for a period he did not work. The damages for the wrongful dismissal are the period of notice he would have worked for, which in this case is one month's notice, which I have said to be N339.595.57k.

I accordingly order as follows:

1. I grant a declaration that the Defendant is contractually bound to the Claimant to apply and follow the procedure prescribed by the Defendant's Code of Conduct and Grievance Procedure which is part of its Staff Handbook.
2. I grant a declaration that the Claimant cannot be validly and lawfully dismissed from the employment of the Defendant except in accordance with the disciplinary process provided for by the Defendant's Code of Conduct and Grievance Procedure which is part of its Staff Handbook.
3. I refuse a declaration that the Defendant's letter Ref. DHR/PFN/1904/114 dated the 7th day of February 2003 dismissing the Claimant from the employment of the Defendant is null and void and of no effect.
4. I refuse an order setting aside the said letter of summary dismissal.
5. I grant a declaration that the summary dismissal of the Claimant is wrongful.
6. I refuse the 6111 and 7th reliefs seeking for a declaration of nullity of the letter of suspension and for setting aside of (he said letter.
7. I refuse the 8th relief directing the payment of the Claimant's salaries and allowances from January 2003 until the date of judgment.
8. I refuse the 9"1 prayer for an order of injunction.
9. I refuse the Alternative Prayer in No, 9 for payment of the Claimant's salary for the unexpired residue of his employment. I also refuse the prayer for his retirement with full benefits accruing at the age of 55 years. I further refuse his prayer for payment of the sum of N30 Million as retirement benefits or for damages of N200 Million for his unlawful dismissal. The Defendant shall however pay to the Claimant his full benefits due and owing to him until 14th March 2003, which is the date the termination of his employment should have taken effect from, he having received the letter of summary dismissal (Exhibit C8) by his evidence, on 14/2/03.
10.I declare that the Defendant is not entitled to seize and appropriate to itself the Claimant's fixed deposit in the sum of N2.3 Million.
11. The Defendant is directed to refund to the Claimant the sum of N2.3 Million with interest at the rate of 18.5% from 14th February 2003 until payment.
12.I declare that the Defendant is not entitled to seize the Claimant's 406 Peugeot Car Registration No HS 578 KJA.
13. The Defendant shall return forthwith the said car, restoring it to the condition it was in before the seizure.
14. I declare that the seizure of the Claimant's Allocation Paper dated 22nd August 2001 in respect of a plot of land (Block 54 Plot 15) at Isheri North is illegal, null and void.
15. I grant an order directing the Defendant to return forthwith to the Claimant the Allocation Paper dated 22nd August 2001 and Payment Receipt in respect of a plot of land (Block 54 Plot 15) at Isheri North.

(3-8-09) ODIGIE V. NBC

2009-11-05T19:02:00.000-08:00

(Vol.9 No.34) OKUBULE V. ADENIYI

2009-11-05T18:54:00.000-08:00

IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT HIGH COURT NO. 2, LAGOS
BEFORE THE HON. JUSTICE INUMIDUN E. AKANDE - J
TODAY TUESDAY THE 4TH DAY OF NOVEMBER 2008

SUIT NO ID/2989/96
BETWEEN:
MR. O. ADEWALE OKUBULE ...... CLAIMANT

AND
PRINCE JIDE ADENIYI ……………. DEFENDANT

JUDGMENT

This action commenced by a Writ of Summons dated 9 October 1996. The Claimant then known as the Plaintiff claims as follows against the Defendant
"(i) N=400,000: = being sum due to the Plaintiff as agency commission and professional fees from the sale on behalf of the Defendant of the Defendant's property at Saji Ayangade street, Anthony Village, Lagos and for services rendered by the Plaintiff to retrieve the original documents of the said property from the custody of Messr-s ACB Plc sometimes in May 1996 upon the Defendant's instruction thereat.
(ii) Interest at the rate of 15% per annum on the said sum of N4OO,OOO: = from 3rd July 1996 until judgment or payment of Judgment sum.
(iii) Cost of this action."
The Statement of Claim dated 9th October 1996 was duly filed along with the Writ of Summons. It sets out the full particularity of the claims in the Writ of Summons and Statement of Claim were served on the Defendant who entered appearance and filed Statement of Defence contesting the Claimant's claims against him in the Writ of Summons.
At the trial of the substantive suit the Claimant called one witness, CW1 (i.e. the Claimant) and 23 Exhibits were tendered through CW1. The Defendant called only one witness, DW1 (i.e. the Defendant himself). No documents were tendered as Exhibits through DW1 in evidence to establish his averments in the Statement of Defence.
At the trial which commenced on the 3rd October 2001, Mr. K. E. Osaji appeared for the Claimant. Mr. Wole Ajayi appeared for the Defendant. Mr. Osaji led the Claimant (CW1) in evidence in chief in proof of the facts in the Statement of Claim. Mr. Ajayi cross-examined CW1 on the evidence in chief he gave. The Court proceedings state the names of other Counsel who appeared for the Claimant and Defendant on the relevant adjourned dates in the proceedings. DW1 was led in evidence in chief by Mr. Ajayi. No documents were tendered through him. DW1 was cross-examined by the Claimant's Counsel on the evidence in chief he gave.
On the 20th February 2007 the Defendant closed his case and the Court ordered Written Addresses to be filed and served and adjourned matter for final Address. Mr. Ajayi in his submission adopted the Written Address he filed and served dated lO1 April 2007. He informed the Court that there were 2 issues for determination. He stated that by the nature of the claim which was for special damages it needed strict proof to entitle the Claimant judgment by this Court. He stated that the evidence of the Claimant showed that the Defendant was no longer indebted to the Claimant in the sum he claimed in the Writ of Summons since he had already been settled by the Defendant as agreed. He told the Court that the Claimant did not under cross-examination of the Defendant at the trial contradict the DW1 as to the fact that the Claimant was paid by the Defendant to retrieve the title documents of the 2 plots of land, from ACB Plc, that were sold. He submitted that failure of the Claimant to call Barrister Andy Igbokwe to testify on behalf of the Claimant to prove the material facts in the Statement of Claim amounted to his withholding evidence from the Court. He submitted that the evidence before the Court did not establish that the Claimant was entitled to the amount he was claiming in the Writ of Summons. He cited and relied on the cases stated in his Written Address. He pointed out to the Court that the provision of Section 15 of the Legal Practitioners Act 2004 has not been complied with, by the Claimant in instituting this suit. He finally urged the Court to dismiss this suit against the Defendant. Mr. A. A. Adewale who appeared for the Claimant at the final Address relied on the Written Address he filed and served. He adopted same which is dated 23rd May 2007. He stated that the Claimant was instructed both orally and in writing to sell the Defendant's property. That the Claimant carried out the instruction and found one Engineer Aina as the buyer. That Engineer Aina paid N=4m to the Defendant and also the sum of N=200,000: = as professional fee which sum was shared amongst 3 lawyers, himself, Mr. Andy Igbokwe and Mr. Rotimi Aladesamni- That the Claimant also retrieved the Defendant's titled documents for the property from ACB Plc on the instruction of the Defendant as per Exhibit A. He stated that the Claimant served on the Defendant bills of charges to demand for the sum of N=400,000: = his agency commission and professional fees when the Defendant refused to pay the Claimant as per Exhibit M in line with Section 15 of the Legal Practitioners' Act 2004. He stated that the Claimant only had N=70,000: = out of N=200,000: = paid by Engineer Aina. That the evidence before the Court established that the Claimant performed his professional services and as such the Defendant has to pay him his fees. He relied on the cases stated in the Written Address in paragraphs 4.1, 4.4, 4.6 and 4.10. He submitted that Section 149(d) of the Evidence Act the Defendant's Counsel relied upon in his submission was misconceived as it was not applicable. He submitted that the evidence to establish the averment had been tendered in evidence. That Mr. Andy Igbokwe needed not to be called as a witness by the Claimant. That the Claimant, not calling him as his witness to confirm the payment of N=70,000: = he received from the Claimant was not to be regarded as withholding vital evidence. That Exhibit N established that Mr. Andy Igbokwe received the money. He submitted that since it was established that the Defendant's property was sold for N=4m the Court should order the Defendant to pay the professional fees charged. He finally urged the Court to enter Judgment in favour of the Claimant.
Since this action is a claim by the Claimant from the Defendant for the sum of N=400,000: = being sum due as Agency Commission and professional fees for services rendered as alleged by the Claimant to the Defendant the said action will succeed if it is ascertained that all the conditions that must be complied with under Section 16(1) and (2)(a) and (b) of the Legal Practitioners Act 2004 Laws of the Federation before filing this action have been so complied with. The Claimant from the averment in paragraph 1 of the Statement of Claim described himself as a Legal Practitioner and claims to be practising as such under the name and style of O. Adewale Okubule & Co. at No. 36A, Cow Lane, ADIL HOUSE, 1st Floor, Off Bamgbose Street, Lagos Island, Lagos. Therefore the provisions of the Legal Practitioners Act 2004 apply to this case. See 16(1) provides: -
"Recovery of charges etc.
16(1) Subject to the provision of this Act, a legal practitioner shall be entitled to recover his charges by action in any Court of competent jurisdiction.
(2) Subject as aforesaid a legal practitioner shall not be entitled to begin an action to recover his charges unless: -
(a) a bill for the charges containing particulars of the principal items included in the bill and signed by
him, or in this case of a firm, has been served on the client personally or left for him at his last address as known to the practitioner or sent by post addressed to the client at that address; and
(b) the period of one month beginning with the date of the bill has expired.
(3) Etc. .......................,......................"
Looking at Exhibit M attached which is the bill of professional fee which was purportedly addressed to the Defendant it was in fact drawn up by the Claimant to demand for payment of his professional fee. There is no doubt that the Claimant has prepared the said bill as specified by Section 16(2)(a) of the Legal Practitioners Act 2004, Laws of the Federation. But the conditions precedent for the action to be competent and to enable the Court to be in a position to entertain this action have not been completely fulfilled by the Claimant.
As it is there is no evidence before the Court establishing that the said Exhibit M was properly served on the Defendant in the manner prescribed more so as the Defendant's Counsel has submitted that the provision of Section 16(2)(a) of the Legal Practitioners Act 2004 has not been complied with.
What is endorsed on Exhibit M can not be taken as the required fulfilment of the conditions precedent therein. For Exhibit M to have probative value and the Court to rely on it in this judgment it must contain a proper endorsement showing that the Defendant was served personally at his known address or it was left for him at his last known address or sent to him by registered post addressed to the Defendant at that address. The Claimant has to lead evidence to establish the mode of service he used to serve the Defendant with Exhibit M. As it is, the endorsement on page 2 of Exhibit M recorded no service, and this did not satisfy the provision of the law. Even where it is stated that the Defendant refused service, sufficient evidence must exist to establish the date the service was refused and the Address at which Exhibit M was taken to when its service was refused. An Affidavit ought to be sworn to stating all these facts to give it credibility and the said Affidavit must be tendered in Court as an Exhibit. This is why I have submitted that Exhibit M has no probative value. Since the probative value of Exhibit M will determine the success of this case and it is now established that Exhibit M has no probative value, all the other Exhibits tendered by the Claimant to establish his claim will be established not to have " probative value as well.
It is my view that the submission of Mr. Adewale that the Claimant complied with Section 16 of the Legal Practitioner's Act 2004 is misconceived- He has also misinterpreted the law to suit his purpose. This Court is also of the view that the cases of Oyekanmi Vs NEPA (2000) 12 SC (Part 1) 20, Aburime Vs NPA (1978) 4 SC III and Savannah Bank Vs Opanubi (2004) 7 SC (Part II) relied heavily upon by him are not applicable and relevant to this case. They would have been relevant and applicable if Exhibit M has probative value and Section 16(2)(a) of the Legal Practitioners' Act 2004 has been fully complied with.
As a matter of fact this Court has no jurisdiction to entertain this case in view of the fact that Exhibit M has been established to lack probative value. See the case of NNPC Vs Fawehinmi (1998) 7 NWLR (Part 559) 605. The requirements of a preaction notice are not ornamental merely but go to the root of what will make the institution of such an action in Court valid and would enable the Court to exercise its jurisdiction so conferred on it.
Once a Defendant raises an objection as to non-compliance with the condition precedent to exercise of Court's jurisdiction it is for the Court seised of the proceeding to examine the objection to ascertain whether it could adjudicate.
The Court can not side track or waive aside such an objection. This Court hereby on the authority of the NNPC Vs Fawehinmi (Supra) upholds Mr. Ajayi's submission on this issue for being meritorious. Since this matter has gone to trial with the parties calling evidence the Court has the duty to determine the case on the merit as it is.
This is why the Court will dismiss this case. It is the duty of every Plaintiff or Claimant to prove his case. The Court does not make a case for the parties. If a party does not establish his case at the end of the trial he fails and the Court shall dismiss it. See the case of Acme Buildos Ltd. Vs K.S.W.B. (1999) 2 NWLR (Part 590) 288 Supreme Court Decision.
In the instant case. Exhibit M the Claimant relied upon to institute this action is established to lack probative value. The case will never succeed with Exhibit M" having no probative value.
I am therefore discountenancing Mr. Adewale's submission for not been meritorious. It is hereby ignored. The case hereby fails.
The judgment of this Court shall be an Order dismissing this case in its entirety for lack of merit.
I award no cost.

INUMIDUN E. AKANDE
JUDGE

(22-06-09) ADENIJI V. AG & NJC

2009-11-05T18:46:00.000-08:00

Vol 9 No.30 (MEFO V. SAVIOUR CHRIST APOSTOLIC CHURCH & 2 ORS.

2009-11-05T18:34:00.000-08:00

IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT IKEJA
ON FRIDAY THE 4TH DAY OF MAY, 2007
BEFORE HIS LORDSHIP THE HON.
JUSTICE A.A ALABI ——————CHIEF JUDGE

SUIT NO: LD/4052/92

BETWEEN:-
J.O MEFO . CLAIMANTS
AND
1. REGISTERED TRUSTEES OF }
SAVIOUR CHRIST APOSTOLIC }
CHURCH } DEFENDANTS
2. PASTOR E.OADEDEJI }
3. GOVERNOR OF LAGOS STATE }

JUDGMENT
The Claimant commenced this suit by way of writ of summons dated 23rd December, 1992. The writ of summons was accompanied by a statement of claim of the same date. The defendants were eventually duly served with the originating processes. The first and second defendants filed their joint statement of defence. The Claimant amended his statement of claim several times over until the further amended statement of claim dated 30th May, 1997.
In the further amended statement of claim aforesaid, the Plaintiff claims against the 1st and 2nd defendants jointly and severally as follows:-
1. A declaration that the certificate of occupancy no:78/78/1786, registered as no: 78 page 78 in volume 1980a dated 21st February, 1986, and 64/64/1990k registered as no. 64 at page 64 in volume 1990k both registered at the lands registry office in Ikeja are null, void and of no effect because they were both obtained by fraudulent misrepresentation and non-disclosure of material facts.
2. A declaration of title, that the Plaintiff is the person entitled to a grant of statutory right of occupancy to that piece and/or parcel of land measuring 921.446 square meters, inclusive of the released portion of land to the Plaintiff on the 25th August, 1988, both situated, lying and being behind no. 24 Bank Olemoh Street, Surulere, Lagos State, which land is more particularly described and edged red on plan no: LAT 8366/LA/84 of 8th August, 1994.
3. #183,160.00 (one hundred and eighty-three thousand, one hundred and sixty naira) being special damages for trespass on and demolition of property situate, lying and being at no. 24, Bank Olemoh Street, Surulere, Lagos State, on the 28th, 29th and 30th of August, 1992, and which trespass still continues.
4. #1,000,000.00 (One Million Naira damages) being general damages for trespass.
5. #500,000 (Five Hundred thousand naira only) being Solicitors fees incurred in the prosecution of this suit.
6. Perpetual Injunction restraining the Defendants, their agents and/or servants from committing further acts of trespass on the land in dispute or in any way disturbing the Plaintiffs possession of the said land.
Particulars of special damages were given in details.
After the preliminaries, the matter proceeded to hearing.
At the hearing, two witnesses testified for the Claimant and two witnesses also testified for the first and second defendants.
The first witness for the Claimant was the Claimant himself- Jefa Olu Mefo. He told the court that he shares the same boundary with the first and second defendants. According to him, in 1969, he lived at Apongbon where the Federal Government displaced them and moved them to Surulere Scheme. Those of them in that category were advised to apply with two passport photographs which he did. A letter from the Public Health Department to him was admitted as exhibit A, while his letter to the Public Health Department was admitted as exhibit B. He was allocated a plot in a swampy area. He developed the land in 1977. The land is behind no.24B Bank Olemoh Street Surulere. By 1978, the Defendants developed their site but they never encroached on claimant's land. The claimant had a cordial relationship with the 1st and 2nd defendants so much that the Plaintiff and his wife were worshipping with the defendants. He procured a permit from the Surulere Local Government. A receipt issued to him by the LSDPC was admitted in evidence as exhibit C. it was for allocation of residential plot.
There was so much pressure from the Surulere Local Government and he was advised to take an action against them. He invited the defendants to join him in the action. They joined as 2nd Plaintiff. Certified true copies of the court processes before Oluwa J. were admitted in evidence as exhibit D-D11. The case was eventually withdrawn.
The Surulere Local Government came to demolish the church. He the Plaintiff complained to the LSDPC and the Governor's office. The letter by way of reply from LSDPC, was admitted as exhibit G, while the reply from the Governor's office was admitted as exhibit H.
The case he earlier withdrew was refilled. He was granted an interlocutory injunction restraining the local government from demolishing their properties. Thereafter, many notices were served on their properties. Himself, the Claimant and the defendant wrote a joint petition to the Government Then there was a letter of allocation to the defendant. He protested. Secretary to LUAC intervened. The defendant then did an instrument of release to the claimant. It was admitted as exhibit M, which he the claimant rejected. The Surulere Local Government demolished part of the claimants' property. The defendant he said demolished his three bedroom apartment. He claimed as per his amended statement of claim. Under cross-examination, the claimant claimed that exhibit D3 is the letter allowing him to stay on the land.
The second witness for the claimant was one Ademola Ashipa. He is a surveyor by profession. He carried out a survey job for the claimant and the defendant at the instance of the claimant. He made survey plans no. LAT/1856A/LA/81, which plan was admitted as exhibit 0. He also prepared survey plan no. CAT/I 856B/LA/81 for the claimant. The plan was admitted as exhibit P.
When the survey was being prepared the two parties were present. The defendant did not raise any objection. The witness told the court that the defendant's survey plan contains a make-shift church while claimant's survey plan has a temporary structure for his carpentry shed. Both land were distinct and separate.
Then in 1988, the defendant went to the same surveyor and showed the surveyor an allocation paper showing that both lands are to be allocated to the church. The surveyor then prepared another survey plan for the defendant. The third survey plan was admitted in evidence as exhibit q, which is a combination of the two earlier survey plans. The witness was neither cross- examined nor re-examined. That was the case for the claimant.
The first witness for the defendant was one Ezekiel Oladosu Adedeji, a minister of the Lord. He told the court that the claimant met him on the land.
It is not the same land. The claimant has his own land while the defendants also have their own land.
The witness said the Surulere Local Government wanted to demolish their land.. The Plaintiff went to secure that his property be not demolished. The then Governor of Lagos State Alhaji Lateef Jakande visited the Land and told them that he was going to give the land to the church because it was going to be used as a place of worship. The land was given to the church. Pursuant to the directive of the then Governor, he surveyed the two parcels for the church.
He said they have two certificates of occupancy. One during Governor Mudashiru in the name of the church, then Christ the Saviour. The defendants he said, have since changed their name. He said they gave part of the land to the Plaintiff. He denied that it was the defendant who demolished the Plaintiffs property. It was the Surulere Local Government that demolished the whole of the Plaintiffs property. He denied liability for all the claims of the claimant.
Under cross-examination, the witness admitted that before Governor Jakande came to visit the land. The claimant had a part of the land and the defendant also had a part of the land. He admitted that the claimant and the defendant both acted together when Surulere Local Government wanted to demolish their property. He agreed that both of them, i.e the Plaintiff and defendant were using their separate portions without the consent of Government. There was no dispute between them. He agreed that he did not inform the claimant before he surveyed the land.
The second witness for the defendant was one Abayomi Stephen Akintoye- a clergy man. He joined the church in 1975. In 1992, He was appointed the general secretary of the church. He was ordained as an evangelist in 1996 and a pastor in 1999. He identified exhibit Ml as a document given to the claimant by the defendant. Although he did not sign the document, he was present when the document was executed. Certified true copy of the certificate of occupancy of the church dated 21st February 1986 and registered as no.78 at 78 at page 78 1983a, was admitted through the witness as exhibit U. Copy of deed of surrender of statutory right of occupancy made in the earlier name of the church was admitted through the witness as exhibit V.
Under cross-examination, the witness admitted that the Plaintiff and the first defendant were occupying different portions. The witness admitted that exhibit M, was duly issued by the defendant church. Although he was aware of the meeting between Dr. Alaba of the LUAC, the church and the Plaintiff, he was not aware of the allegation by the Plaintiff that the church included the Plaintiffs land with the land of the church. That was the case for the defendants.
The matter then proceeded to address. Learned Counsel for the defendants, filed an undated defendants brief of argument on 22nd January 2001, and learned counsel for the claimant filed Plaintiffs written address dated 17th April, 2001.
In the defendant's brief of argument aforesaid, learned counsel stated the claims of the Plaintiffs and stated the case of the defendants from the point of view of the defendants. He reviewed the cases of the claimant and that of the defendant. Learned counsel stated some facts which includes that:
(1) Both lands in dispute and occupied by both plaintiff and the first defendant are properties of Lagos State Government either directly or through one of its agents.
(2) The two lands are distinct and independent of each other but had common boundary.
(3) Both lands had separate survey plans prior to the visit of Governor Jakande.
(4) Both lands were offered to the first defendant through letter of allocation- exhibit W.
(5) The Plaintiffs land was demolished by the Surulere Local Government.
Learned counsel then formulated the issues for determination as follows:-
(1) Whether the Certificate of Occupancy nos. 78/78/1986A and 64/64/1990K- Exhibit T&U were obtained by misrepresentation of facts and/or by fraud.
(2) The Plaintiff had made a case backed by credible evidence to support his claim for declaration of his statutory Right of Occupancy of the piece or parcel of land as described in exhibit 0.
(3) The Plaintiff is entitled to #183,160.00 or to any amount as special damages for alleged trespass committed by the 1st and 2nd defendants on the plaintiffs supposed piece or parcel of land as described in exhibit 0.
(4) The plaintiff is entitled to grant of injunction against the defendants.
(5) The 2nd defendants is personally and/or jointly liable to the plaintiff in respect of damages suffered by the plaintiff on the land covered by exhibit 0.
Learned counsel submitted that neither the certificate of occupancy registered as no. 78/78/1980 nor the one registered as 64/64/1990k was obtained by fraudulent misrepresentation and non-disclosure of material facts. He argued that the name of the Governor of Lagos State having been abandoned, the claim for declaration of title cannot succeed. He argued further that particulars of fraud were not pleaded relying on section 138(1) & (2) of the Evidence Act 1994, and citing the case of lkoku vs. Oli (1962) I NWLR, 194 and Akpunonu v. Breakart Overseas (2003) NSCQR 184 at 191.
He cited the case of Idundun vs. Okumagba (1976) 9-10 SC, 227 and reviewed the five ways of proving title to land. Counsel argued that there exists proof that the Plaintiff never suffered any damages other than special damages and trespass. He contended that the Plaintiffs claim for injunction must also fail. He finally submitted that the plaintiffs case is frivolous, speculative and lacks merit.
In the plaintiffs written address, learned counsel did an introduction enumerating the state of the pleadings. He followed up with what he describe a summary of facts before the court under which he reviewed the evidence on both sides.
Learned counsel then formulated the issues for determination as follows:-
(i) whether it was proper to grant a certificate of occupancy to the first defendant on the plaintiffs land bearing in mind that the first defendant had no prior title thereto.
(ii) Whether the plaintiff is entitled to damages against the first and second defendants for trespass and destruction of the Plaintiffs properties.
He cited the case of Kaigama vs. Nnamani (1997) 3 NWLR, Part 495, page 549, to the effect that a certificate of occupancy is prima facie evidence of title. Learned counsel argued that as far as no. 24 Bank Olemoh Street Surulere, the first and second defendants are trespassers. He contended that if it is proved that another person had a better title to a land before the issuance of a certificate of occupancy. The court can revoke such certificate of occupancy relying on the case of Osazuwa vs. Ojo (1999) 13 NWLR, Part 634, Page 286.
Learned counsel submitted that by virtue of suit no. LD/1178/80 in which the second defendant participated, the 1st and 2nd defendants are estopped from challenging the title of the plaintiff to no. 24 Bank Olemoh Street Surulere Lagos. The same principle applies to exhibit M he argued.
On the issue of special damages, learned counsel argued that such damages must not only be pleaded- specifically, it must be proved strictly. He cited the case of Ebe vs. Nnamani (1997) 7 NWLR, Part 513, Page 479 and submitted that the Plaintiff has pleaded damages expressly and proved same strictly.
On the issue of general damages, learned counsel contended that cost must follow event and a successful party is entitled to cost. He urged the court to believe the testimony of the plaintiffs witness.
The facts as established in this case is very straight forward. The claimant was one of the persons displaced at Apongbon when Apongbon Street was acquired by the Federal Government for the construction of Eko bridge. The claimant was one of those meant to have been resettled in the Surulere housing scheme but he was not lucky enough to have been resettled. All persons falling within that category were advised to apply for allocation of land.(exhibit PI is to that effect)
The claimant applied formally by his letter dated 10th August 1071 (exhibit P.2). Somehow the claimant moved on to a land located along Alapafuya Street Surulere. When the claimant was threatened with demolition on the land by the local Government Authority. The Lagos State Development and Property Corporation by their letter dated 16th September, 1980, permitted and allowed the Claimant to remain on the land until a permanent allocation is made to him. The claimant got an order of injunction against the local Government chairman restraining the local Government Council from demolishing the claimant's structure on the land.(exhibit D.6 is the order duly signed by Oluwa J. as he then was)
When the claimant and his neighbour, the defendants, continued to be threatened with demolition by the local Government Council Authority, the claimants and the defendants jointly signed a petition to the then Governor of Lagos State. Exhibit K is that petition.
Essentially, it is very obvious and clear to me that the claimant acquired an interest in the portion of land he held and was in physical possession of that portion of land. It is also important to state that the Government of Lagos State recognized the occupation of their respective holding. Both the claimant and the defendants had survey plans of the land held by each of them. The survey drawings were admitted in evidence as exhibits P and Q. The survey plan held by the plaintiff was plan no. LAT.1856A/LA/81, while survey plan held by the defendants was plan no. LAT.1856B/LA/81, dated 19th Oct. 1981.
In the process of resolving the dispute, the then Governor of Lagos State, Alhaji L.K Jakande, visited the land. During the visit, the Governor directed that the entire land held by both the Claimant and the defendant be allocated to the defendants only. Thus forfeiting the interest of the claimant in the land held by him. Apparently in recognition of the Claimant's interest in part of the land, the defendants purportedly claimed to have allowed the claimant the use of part of the land. A purported instrument of grant duly signed stamped by the defendant was admitted in evidence as exhibit M.
A certificate of occupancy was eventually issued in favour of the defendant church covering the two plots held separately by the Plaintiff and the defendant. The certificate of occupancy first issued was amended when the defendants changed the name of their church. It was substituted by certificate of occupancy dated 7th February 1986 and registered as no. 78 in volume no. 1986A of the Register of Deeds kept at the Lagos State Land Registry Lagos.
In the light of the above, it is not difficult for me to conclude that the claimants and the defendants were tenants of the Lagos State Government. It is necessary at this stage to take another look at the claims of the Plaintiff, which states as follows:-
1. A declaration that Certificate of Occupancy Nos.78/78/196A, registered as No.78 at Page 78 in Volume 1986, dated 21st February, 1986 and 64/64/990K, registered as No.64 at Page 64 in Volume 1990K both registered at the Lands Registry Office in Ikeja are null and void and of o effect because they were both obtained by the defendants by fraudulent misrepresentation.
2. A declaration that the plaintiff is the person entitled to a grant of Statutory Right of Occupancy to the piece or parcel of land measuring 921.446 square metres, situate, lying and being behind no.24, Bank Olemoh Street, Surulere Lagos State which land is more particularly described and edged RED Plan no.
LAT8366/LA/84 of 8th August, 1984.
3. #183,160.00 being special damages for trespass committed by the defendants on the said piece or parcel of land situate, lying and being at no.24, Bank Olemoh Street, Surulere, on 28th, 29th and 30th of August, 1992 and which trespass still continues.
4. The perpetual injunction restraining the defendants, their agents and/or servants from committing further acts of trespass on the land in dispute or in any way disturbing the plaintiffs possession of the said land.
Essentially, the claims as stated above, as against the 1st and 2nd defendants arc claims for declaration of title, but the plaintiffs claims as against the 3rd and 4th defendants are claims for relief against forfeiture.
It is my judgment that the claimant has acquired sufficient interest in the land to entitle him to be described as a tenant of the Lagos State Government. Exhibit C is evidence of payment for application form issued by the Lagos State Development and Property Corporation. Exhibit D3 and D4 (F, H and H1), are evidence of acknowledgement of the presence of the claimant on the land by the Lagos State Government.
The point must be made very clearly that in an action by the lessor for forfeiture of a lease, the lessee must claim for relief against forfeiture if he wants the court to grant him such a relief.
Relief against forfeiture of a lease is a statutory right which must be specifically pleaded under Order 18, Rule 18 of the High Court of Lagos State (Civil Procedure) Rules, 1972.
Relief against forfeiture is founded on equity. The position of the law is very clear that before a defendant can be granted relief against forfeiture, he must specifically ask for it and this he must do not only in the pleadings but by the procedure stated in Atkins Court from, 2nd edition Volume 24 at page 30 which the Supreme Court adopted in the case of Taiwo v. Akinwunmi (1975) 4 SC. 143. The three ways of asking for the relief as clearly stated in Taiwo v. Akinwunmi arc by a writ or originating summons or by a counter claim. See the case of Seaview Inv. Ltd. vs. Munis (1991)6 NWLR Part 195, Page 67.
The plaintiffs 2nd leg of claim against the 3rd and 4th defendants for declaration that the plaintiff is the person entitled to a grant of statutory right of occupancy to the piece and parcel of land measuring 921.446 square metres, situate, lying and being behind no.24 Bank Olemoh Street Surulere Lagos State which land is more particularly described and edged Red in plan no. LAT/8366/LA/84 of 8th August 1984 is a claim praying the court to order the third and fourth defendants from forfeiting the land held by him.
Where a tenant, whether he is a customary tenant or not, commits an act which could incur a forfeiture of the tenancy and a claim for such forfeiture is brought against him in the High Court, the proper procedure is not by just asking for relief in the pleadings. A claim for relief from forfeiture for non-payment of rent may be made in a number of ways, namely: if the landlord has not begun any proceedings, the tenant or sub tenant may initiate a claim for relief by writ or originating summons. Alternatively, the tenant may counter claim for relief in the lessor's action or simply apply by summons in the action. If the application is made after judgment, it is usually by summons. See the case of Taiwo v. Akinmunmi (1975) 1 All NLR (Pt. l) 202 at 220.
In a claim for relief against forfeiture, by proceeding either by way of an originating summons or a counter claim where pleadings could be ordered, the tenant will be able to set out in detail the facts upon which he relies such as the circumstances leading to the breach. The landlord or overlord will be able in his own defence to the originating summons or counter claim, to reply to all the facts on which the tenant is relying. Issues as to whether to grant the relief or not will then be joined and neither party would be taken by surprise. The court will then hear evidence from both sides on their pleadings and will thus be in a better position to consider all the circumstances and probabilities and come to a conclusion one way or the other.
Relief against forfeiture is an equitable remedy which by virtue of section 19 of the High Court Law of former Eastern Nigeria 1963, ranks in superiority over rules of common law and its enforcement is at the judicial discretion of the trial court to be exercised judicially and judiciously.
By section 14(2) of the Conveyancing and Law of Property Act, 1881, where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture, the lessee may, in the lessor's action, if any or in any action brought by himself, apply to the court for relief and the court may grant or refuse the relief, as the court having regard to the proceedings and conduct of the parties think fit, and in case of relief may grant it on such terms, if any as to costs, expenses, damages, compensation, penalty or otherwise including the granting of an injunction to restrain any likely breach in the future as the court in the circumstances of each case thinks fit.
In considering whether to grant or refuse relief against forfeiture, the paramount consideration of the trial court is to base it on the sanctity of contract made by the parties.
By virtue of the Conveyancing and Law of Real Property Act of 1881-1892 of England which is applicable to Lagos State and other parts of Nigeria except the former Western Region of Nigeria, no relief can be granted for a breach of Covenant against assignment under-letting or parting with the possession of a demised premises without the consent of the lessor first obtained. See the case of Ishola-Williams v. Hammond Projects Ltd,(1988) 1 NWLR (Pt.71) 48. Sec also Scaview Investment Ltd. v. Munis (1991) 6 NWLR(Pt.l95)67.
In Lagos State, the Conveyancing and Law of Property Act 1881-1982, governs lessor and lessee relationship and under that law, relief against forfeiture of a lease can only be granted when there has been a breach for non-payment of rent but there is no provision under that law for relief against forfeiture in respect of other breaches of covenant in a lease.
In the circumstances of this case, it was not available to the then Governor of Lagos State to unilaterally forfeit the interest of the claimant in the land by mere and ordinary verbal directive. The law requires that a forfeiture proceeding ought to have been taken out against the claimant in a court of competent jurisdiction.
A right of re-entry or forfeiture under any proviso or stipulation in a lease, shall not be enforceable by action or otherwise unless and until the lessor serves on the lessee a notice specifying the particular breach complained of and if the breach is capable of remedy, requiring the lessee to remedy the breach and in any case, requiring the lessee to make compensation in money for the breach and the lessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach.
The object of notice of breach as envisaged by section 14(1) of the Conveyancing Act, 1881 is to give the person whose interest it is sought to forfeit the opportunity of considering his position before an action is brought against him. Consequently, the particulars of a breach of a covenant to develop must be given in a notice of breach before the notice can be held to be valid.
In the circumstances of this case, with the provisions of section 14(1) of the Conveyancing and Law of Property Act 1881 (which is applicable in Lagos State) not having been complied with, with a proper action for forfeiture not having been taken out against the Claimant and without any breach of covenant having been established against the claimant, it was wrongful of the Governor to have forfeited the interest of the claimant in the land held by him, by a mere oral verbal directive is irregular. Such oral or verbal directive is null and void and of no effect.
As indicated earlier on in this judgment, a certificate of occupancy was issued in favour of the defendants to cover the land earlier held by both the claimants and the defendants. What that means in effect is that the defendants had no title to the land held by the claimant when the certificate of occupancy was issued. The position of the law on that issue is very clear.
By virtue of section 34 of the Land Use Act, 1978, any person without title to a parcel of land in respect of which certificate of Occupancy was issued acquires no right or interest which he did not have before. Furthermore, the certificate cannot estop the court from enquiring into the validity and existence of the title the person claimed to possess before the issue of the certificate. In the instant case, at the time the right of occupancy over the disputed land was granted to the defendant, the right of the claimant was still extant and subsisting. Therefore, the defendants acquired no title to the said land. See the case of Ogunleye v. Oni (1990) 2 NWLR (Pt.135) 745.
The Certificate of Occupancy was valid only in respect of the piece of land earlier held by the defendants. The Certificate of Occupancy is invalid and improper in respect of that piece of land earlier held by the claimant.
In the result, the claimant's action succeeds and accordingly;
(1) It is hereby declared that the Certificate of Occupancy dated 7th day of February 1986 and registered as no. 78 at page 78 in volume 1986A of the Register of Deeds kept at the Lagos State Lands Registry, Lagos Nigeria, is effective to the extent that it covers the land in the survey plan no. LAT1856B/LA/81 exhibit P, dated 19/10/81, which land was formally held by the claimant before the issuance of the Certificate of Occupancy.
(2) It is further declared that the claimant is the person entitled to a grant of statutory Right of Occupancy to the piece and parcel of land measuring 921.446 square meters situate, lying and being behind no.24 Bank Olemoh Street Surulere, Lagos State which land is more particularly described and delineated and edged Red in the Survey plan no. LAT1856B/LA/81 dated 19th October 1981 - exhibit P.
I find myself unable to award damages for trespass against the 1st and 2nd defendants because the said defendants entered upon the land on the Authority of the third and fourth defendants. That leg of relief is hereby dismissed. Pursuant to the success of the claimant in this action, an order of perpetual injunction is hereby made restraining the defendants, their agents and /or servants from going on to the land of the claimant as demarcated in the survey plan admitted as exhibit P or in any way disturbing the Plaintiffs possession of the said land.
Costs assessed at N15,000.00 is awarded in favour of the claimant against the defendants jointly and severally.

HON. JUSTICE A.ADE ALABI
CHIEF JUDGE

(Vol 9 No. 28) BGKT V. LAGOS INEC

2009-11-05T18:27:00.000-08:00

IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDENAT IKEJA
BEFORE THE HONOURABLE JUSTICE A.A. PHILLIPS
THIS 9TH DAY OF APRIL 2009

SUIT No. LD/1031/2004

BETWEEN
BGKT NIGERIA LIMITED - PLAINTIFF
AND
LAGOS STATE INDEPENDENT - DEFENDANT
ELECTORAL COMMISIION

Parties absent
Mrs G. A. Okerinde for the Claimant
A. A. Adewale for the Defendant

JUDGEMENT

INTRODUCTION
This case was instituted by a Writ of Summons and a Statement of Claim both dated 10/5/04. The Defendant filed an Amended Statement of Defence and Counter claim dated 21/11/2005 and the Claimant in turn filed a Reply and Defence to counter claim dated 25/4/06 and this is the state of the pleadings in this matter.

THE CLAIMS
In paragraph 27 of the Claimant’s Statement of Claim dated 10/5/04 it claims against the Defendant as follows:-

1. The Claimant claim against the Defendant is for the total sum of N2,260,000.00(Two Million Two Hundred and Sixty Thousand Naira) only being the cost of producing an additional 750( Seven Hundred and Fifty) electoral boxes for the Defendant out of a total 3000 boxes and also the cost of providing adequate security for the said 750 boxes which the Defendant contracted the Claimant to produce before the Defendant terminated the contract retroactively after the Claimant had produced the electoral boxes and taken them to the Defendant's office for delivery

2. The Claimant also claims interest on the said at the rate 25% per annum from the 11th March, 2004 until the liquidation of the judgment debt and cost.

The Defendant counter claimed against the Claimant in paragraph 34 of the Amended Statement of Defence and Counter claim wherein it claims as follows:

1. The total sum of N1, 500,000.00(0ne Million Five Hundred Thousand Naira Only) being cost of awarding 500 aluminium boxes at the rate of N3/ 000.00 per unit which the Claimant had failed to supply in accordance with sample shown to it as specification which boxes are lying at the premises of the Defendant unused to date.

2. The Defendant/Counter-Claimant also claims interest on the said amount at the rate 25% per annum from the 30th of January 2004 until judgment is given.

THE TRIAL
The Claimant called only 1 witness in the person of MRS ADEYINKA ADEKUNBI BANASKO who testified as CWI. The Defendant called 2 witnesses to testify in respect of its defence as follows:-
1. SUNMOLA POPOOLA DW1.
2. TOKUN PEDRO DW2

The Evidence in Chief of CW1 is as is contained in her written Statement on Oath dated 25/2/05 which may be found at pages 30-34 of the court file.
When cross examined by the Defendant's counsel she admitted that she signed the letter marked Exhibit C3 and agreed that she accepted the terms of the contract between her and the Defendant. She staled that she was aware from the inception of the contract that the security of the product was a fundamental term of the contract and that the guarantee was not extraneous to the contract. She knew that the boxes were required for a specific purpose on a specific date and that the purpose of the boxes was to conduct the Local Government Elections in Lagos State on the 27/3/04.She said that she knew the contract was time bound but that she did not supply all the boxes by that date. She said that she has stated in her deposition that 1st and 2nd February 2004 were public holidays and that that was one of the reasons she could not comply with the contract but that she did not raise this issue in any of the letters to the Defendant. She said that the Defendant's cheque matured on the 30/1/04 but could not remember what day of the week that was- Neither could she remember what day of the week 1/2/ was but she remembered that that day was a public holiday. She could not remember whether she went to work on the 1/2/04 but she remembered that she could not go to the market on that day and that if it is essential she goes to the market on Sunday.

She went on to state that she was one of the four contractors employed to produce the' boxes and she recalled signing a document along with other contractors and identified the document as Exhibit C11. She agreed that this letter was written before the Defendant's cheque had cleared in her account, she recalled having a meeting with the Defendant as a result of the letter and as a result of the meeting the Defendant wrote to her that they were not prepared to vary the term of 'the contract. She stated further that upon the receipt of Exhibit C12 she wrote Exhibit C13 to the Defendant and that in that letter that there was no reference to the issue of the public holiday. She slated further that she was aware from inception that the job was suppose to be executed in batches and that it was not true that the first batch she delivered was 750 boxes.
She admitted that she did not complete the delivery as promised in Exhibit C13 and could not remember whether she delivered the 750 boxes by 4/3/04. She could not and she admitted that as at 20/2/04 that she had not delivered the boxes. She further stated that by 29/2/04 she had delivered 167 boxes instead of the number contracted to supply and denied the suggestion that they could not supply the full number" of the boxes because of their incompetence but admitted that the Defendant's officials complained about the pace of her work but not of the quality. She denied the allegation that she sent her workers to carry out repairs on the boxes within the Defendant's premises and agreed that the storekeeper had cause to make observation on her Waybill but that the comment had nothing to do with the specification of the ballot boxes, that he only made his own comments.

She said she did not confirm that the Defendant had paid in full for the first set of 750 boxes and she could not remember how many boxes she took as the last batch to the Defendant unless she sees the waybill. She stated that her claim before the court is that she took 750 boxes To the Defendant expecting them to collect them but they did not do so.- She said further that other boxes were supplied must have been after 6/3/04. She agreed that the store keeper told her the reason for not accepting the balance of the boxes but that she did not interact with the storekeeper, that it was her staff that did. She stated that she was not aware that she was supposed to supply only 750 ballot boxes on that day and denied the suggestions that she was not.

She looked at Exhibit C14 and agreed that they were expected to deliver 750 boxes not later than 4/3/04, she agreed that she signed Exhibit C11 and that the other signatories did not deliver in time that only ALUMACO did. She looks at Exhibit C9 and stated that at the time she got the contract that the Local Government Elections was fixed for 27/3/04 and that the election held as scheduled. She said that at the time she obtained Exhibit C9 the election had already held. She Looked at Exhibit C16 dated 9/3/04 and stated that by that date she had delivered a batch of 750 boxes and that Exhibit C9 had nothing to do with the batches for 750. She said she is the Managing Director of the Claimant Company and that she does not manufacture ballot boxes and this is the first time she is handling this contract for the Defendant. She said that they have not handled any ballot boxes for INEC either and denied the suggestions that the contract failed because she lacked the capacity and experience to execute the contract.

This witness was not re-examined and with the conclusion of her evidence learned counsel for the Claimant closed the case for the Claimant.
The Defence then opened its case and the evidence in chief of DW1 the Defendant's Principal Store Officer for the Defendant who is his employer may be found at pages 89-90 of the Court file.

When crossed examined by learned counsel for the Claimant he stated that a contractor cannot supply anything unless it is in a work order and that the Claimant did not supply any extra boxes outside those supplied under Exhibit (C16 -C21). He said that his duties do not include the writing of letters of contract to contractors as that it is done by the Secretary to the Commission and that the Claimant was contracted to supply 3,000 boxes provided that they were supplied by 4/3/04. He said that he knows Barrister Dokun Pedro and denied that he was not usually there when the contractors were discussing with Mr. Pedro. He agreed that he commented on Exhibits C16 -C21 that the keys were undersized. .He said that he was aware that the Claimant had discussed this with Mr. Pedro-but was not aware that Barrister Pedro gave approval that the ballot boxes be used. He was also not aware that Barrister Pedro said that his comments were non issue. He further stated that he rejected the ballot boxes because there was no work order for them and that the Claimant did not supply any extra ballot boxes outside Exhibits C16 - C21. Only 250 boxes were good the remaining 500'boxes were bad. He looked at Exhibit C8 and read paragraph 3, and stated that he had written his comments on Exhibit C16—C21 before he, along, with the Claimant went to see Mr. Pedro. He said that it is not true that as at 23/3/04 some other Contractors were still supplying ballot boxes to them and that he did not know when the letter of revocation of the contract was written. He said that he never accompanied the Defendant's officials to where they manufactured ballot boxes as that it is not part of his duties and that the comments he made on the keys were in regard to the rims of the said keys as they are not good for the security of the boxes. He stated that he wants the court to order that the Claimant should return the mobilisation fee paid for the 500 boxes that were bad and that their counter claim is not an afterthought as all the boxes the Claimant supplied were bad. He said that he did not return the bad ballot boxes to the Claimant and they are lying down unused, he stated further that they did not write to the Claimant to take them that there was no need to write. This witness was not re-examined.

The Evidence in chief of DW2 may be found at Pages 80-83 of the Court file wherein he stated that he is an Electoral Commissioner with the Defendant.
When cross examined by learned counsel for the Claimant he stated that he is a lawyer with 20 years at the bar. He looked at Exhibit C2 and stated that Exhibit C1 is one part of the contract between the parties. He stated that the Claimant introduced another term of the contract which was accepted by the Defendant and that there are other documents to substantiate this but he cannot see them in the documents shown to him- He stated that the Claimant was asked to supply 2000 boxes in this document and that the Claimant did not comply with the conditions in paragraph (S) - (ix) of Exhibit C2 before the first payment of N2.25 million v-/as made. He looks at paragraph ix of Exhibit C2 and states that there was a partial compliance and that he is not the legal adviser and that he does not award contracts. He stated that he is aware of the contract when he was on duty and that he was aware when this contract was awarded. He stated further that he was aware that the Commission inspected the Claimant's premises and that the inspection was made after the disbursement. He stated that the Commission did not comply with paragraph ix of Exhibit C2 and he stated in his evidence in chief that the boxes were to be delivered in batches. He stated further that it was contemplated in Exhibit C2 'that the boxes were to be delivered in batches though it is not expressly stated therein. He stayed that he informed the Claimant of the lapses verbally and the Commission then communicated this to her in writing. He stated further that he does not have a special relationship with the contractors and Exhibit C15 is the letter informing the Claimant of the lapses. He said that the Chairman does not bring ail letters addressed to him at a meeting of the Commissioners and that if the letter affects the commissioner he brings it to the attention of the Commissioner. He said that he has never seen Exhibit C8 before and could not say whether the Commission replied the letter. He stated that the conversation in respect of the keys was held in his office and CW1 was merely being apologetic and that she discussed with him. He said he fold her that the Commission was going to write to her and terminate the contract and that. He was aware that the storekeeper rejected certain number of boxes and she came to him to plead with him that she will change the boxes complained about. He looked at Exhibit C21 and stated that the delivery was made 10/3 and that he saw "the Statement of Claim herein. He stated further the he did not dispatch the letter to the Claimant and that he does not know who dispatched the letter and that it will surprise him to learn that the Claimant received the letter on the 26/3/04. He stated that he did not find out when it was received and that he has seen the counter claim filed by the Defendant and he remembered that they are claiming N1.5 million or a certain sum of money. He stated further that he taught Sales of Goods Law for 11 years and that he has document for the contract of the award of the 500 boxes. He stated that he will be surprised to hear that the Claimant denied that he told her that the contract will be terminated. He stated that he does not leak office secrets and when he looked at Exhibit C8 he stated that this- is a personal letter to the Chairman. He testified further that he does not have a special relationship with the Claimant and after looking at paragraph 9 of Exhibit C2 he said that he agrees that the mobilisation of N2.25 million was for the procurement of the materials for the ballot boxes. He also s fated that he communicated to the Claimant that the contract will be terminated before Exhibit C5 was delivered to her.
This witness was not re-examined and with the conclusion of his evidence learned counsel for the Defendant closed the case for the Defence.

FINAL ADDRESSES
Written final addresses were ordered and counsel complied. The Defendant's written address is dated 29/J/08 while the Claimant's written address is dated 25/2/08.

EXHIBITS
The following documents were tendered and admitted as Exhibits during the trial of this matter:-
1) Written Statement on Oath of the Claimant. Exhibit C1
2) Letter dated 8/1/04 Exhibit C2
3) Letter dated 9/1/04 Exhibit C3
4) Letter dated 10/3/04 Exhibit C4
5) Letter dated 12/3/04 Exhibit C5
6) Letter dated 7/4/04 Exhibit C6
7) Letter dated 4/2/04 Exhibit C7
8) Letter dated 23/3/04 Exhibit C8
9) Receipt dated 30/3/04 for Exhibit C9
N150/000.00 of the
10) Written Statement on Oath Claimant dated 12/5/06 Exhibit C10
11) Letter dated 28/1/04 Exhibit C 11
12) Letter dated 29/1/04 Exhibit C12
13) Letter dated 20/2/04 Exhibit C13
14) Letter dated 25/2/04 Exhibit C 14
15) Letter dated 9/3/04 Exhibit C15
16) 6 Nos Waybills Exhibits C16-C21

FACTS
From the pleadings and the oral and documentary evidence
before the court in this matter the facts are that the Claimant herein was contracted by the Defendant to supply to it 3,000 Ballot Boxes for the 2004 Local Government Elections in Lagos State for the total sum of N9/ OOO/ 000.00 (Nine Million Naira) calculated on the basis of N3,000.00 (Three Thousand Naira) per unit. She was given a mobilisation fee of N2.25Million to be utilised for the procurement of materials needed for the manufacture of the ballot boxes and delivery of the boxes was to be concluded not later than 29th February 2004. The delivery was expected to be made in batches. The Defendant later by Exhibit C14 conceded to the delivery date being not later than 4th March 2004 but the Claimant still failed to supply the said boxes within the specified time. Eventually the Defendant terminated the contract on the ground that the Claimant has failed to comply with the terms thereof and it asked the Claimant to refund the mobilisation fee advanced to the Claimant. She was aggrieved by this act of the Defendant and so "instituted this action in which the Defendant also counter claimed.

ISSUES FOR DETERMINATION
The Defendant's counsel formulated 5 issues for determination in his written address as follows:
1) Whether or not from the evidence before the court there is a breach of contract between the Claimant and the Defendant either by the Claimant or the Defendant.
2) Whether the termination of the contract between the Claimant and the Defendant is justifiable in law.
3) Whether nor there was a valid variation of the contract by the Parties.
4) Any proof of any special damages to enable (entitle) either the Claimant to judgment or the Defendant to judgement.
5) Whether the Claimant or Defendant is entitled to award of general damages.

Learned counsel for the Claimant formulated the following issues for determination in its written address:
1. Whether the Claimant has proved its case on the balance of probability to be entitled to the reliefs by it.
2. Whether the Defendant has proved its case on the 6alance of probability to be entitled to the relief claimed by it in the counter-claim.
I will adopt the issues as formulated by learned counsel for the Defendant as they seem to be appropriate in the circumstances. In doing so however I shall certainly consider the arguments advanced by learned counsel for the Claimant in his written address.

ISSUES 1,2 AND 3
1) Whether or not from the evidence before the court there is a breach of contract between the Claimant and the Defendant either by the Claimant or the Defendant.
2) Whether the termination of the contract between the Claimant and the Defendant is justifiable in law.
3) Whether nor there was a valid variation of the contract by the Parties.

Both counsel have agreed in their respective written addresses that there existed between the parties herein a valid contract and as correctly submitted by learned counsel for the Claimant it is neither the duty nor the place of a court of law to make a contract for the parties. All a court of law can do is to enforce the terms of the contract that both parties willingly entered into and it will not allow any party to read into-a contract a term which was not agreed to by both parties. See ABDULLA1 BABA VS NCATC AND ANOR 1991 5 NWLR (PT 192) 388 AT 437. Learned counsel for the
Defendant in his written address has argued that the Claimant has breached the contract between the parties in that there was a lapse of security over the ballot boxes and the said boxes were supplied within the lime stipulated by the contract. Learned counsel for the Claimant on the other hand has argued that the Defendant unilaterally varied the terms of the contract by its acceptance of 750 boxes and by changing the purpose of the mobilisation paid.
In Exhibit C2 which is the letter of offer to the Claimant which is dated 8/1/04 the Defendant offered the Claimant the contract to supply 3000 ballot boxes under the following terms, and I will reproduce part of the said Exhibit hereunder as follows:-
'Further to your quotation for the supply of aluminium ballot boxes dated 10TH March 2003,1 wish to inform you that the commission has approved your proposal for the supply of the aluminium ballot boxes at the unit price of N3,000 under the following terms:
i. Approved to supply 3000 No aluminium ballot boxes at the rate of N3, 000.00 per unit amounting to N9million.Thepayment of VAT and withholding tax are included in his award.
ii. Guarantee of adequate security during the production of the ballot boxes up to the point of their delivery to the Commission.
ix. On satisfactory fulfilment of the conditions as stated above/ the commission would pay 25% of the total sum i.e.N2.25 million to your company as mobilization tee. The fund will be utilized for the procurement of material need to the manufacture of the ballot boxes.
x. Immediate commencement of the production as the delivery of all the boxes must be concluded not later than 29th February 2004. You are also expected to deliver the boxes as they are produced to the commission.
(Underlining is mine.)
The Claimant by Exhibit C3 accepted the above terms and is therefore bound to comply with them. In Exhibit C14 however the issue of 750 boxes was raised for the first time and therein the delivery date for that amount of boxes was extended till 4/3/04. By the contents of Exhibit C21 however the fast batch of 132 ballot boxes were not delivered by the Claimant until 10/3/04 which is outside the time stipulated in Exhibit C14 I therefore fail to see the point in the argument of learned counsel for the Claimant on this issue as the contents of the above letters are very clear and none
of the parties can give evidence to vary same. So the evidence of the Claimant notwithstanding the written agreement between the parties was that the Claimant was to deliver 750 ballot boxes covered by the advance payment made to the Claimant on or before Thursday 4th March 2004 or refund the said advance payment made. The Claimant by Exhibits C20 and C21 supplied a total of 233 boxes after the said due date and the Defendants accepted them from her so it has waived its right to ask for a refund of the advance payment made to the Claimant. If was really serious in wanting its money back it would have given instructions to the Stores Officer to reject the late delivery. DW1 has testified that they did not return the bad boxes to her so they accepted them which act does not support the averment of the Defendant in paragraph 26 of the Amended Statement of Defence and Counter claim.
Where the terms and conditions of a contract have not been complied with it follows that it' can be terminated by either party that is aggrieved by this inaction that has brought about the breach. In paragraphs 24, 25 and 26 and 27 of its Amended Statement of Defence and Counter claim dated 21/11/05 the Defendant averred as follows;
24. Further to paragraph 21 above the Managing Director of the Claimant was specifically advised by the Defendant's Commissioner Pedro to see the secretary to the Commission for official notification of non compliance and revocation even after the said Mr Pedro had directly informed the Claimant's Managing Director of the Defendant's decision.
25. That between TP March 2004 and the time when the Claimant admitted it was officially informed of the revocation, it claimed it had intensified her rate of production of the boxes. The Defendant however limited itself to accepting delivery of the 750 ballot boxes covered by the amount of money advanced that is N2.25 Million.
26. The Defendant naturally rejected the additional 181 ballot boxes attempted to be foisted on it by the Claimant because they did not comply with agreed specification and were of no value to the Defendant as they were attempted to be supplied outside the agreed timeframe.
27. In the light of all the breaches of the terms of the contract by the Claimant in spite of various encouragement and concessions granted by the Defendant, the Claimant frustrated the contract and the Defendant had no choice but to formally revoke same for record purposes. The Defendant will rely on the letter dated 12th March 2004 in this regard at the trial.

The Claimant in paragraph 9 of her reply averred as follows:-
9. In answer to the averments in paragraphs 23 and 24 of the Amended Statement of Defence which are denied the Claimant avers that the only issue raised with its anaging Director was on the issue of non insertion of key rims to beautify the opening of the ballot boxes and' no other complaint. This issue was duly explained in the Claimant's letter of 23rd March 2004. Furthermore, the Defendant's Mr Pedro never informed the Managing Director of the Claimant’s Company before the receipt of the Defendant's letter that the contract would be terminated rather she was advised to see the Secretary of the Defendant Commission.”
It can be seen that the Defendant has itemised above in very clear terms the sins of the Claimant as it were vis-à-vis the contract between them. The Claimant is alleged to have (a) failed to supply the 750 boxes at the agreed lime; (b) failed to provide adequate security during the production and (c) has also failed to comply with the agreed specification. However, the only allegation proved against the Claimant from the evidence before this court is the delayed delivery of the boxes. The Defendant has not proved anything else. The evidence of DW1 is that he does not go to visit the place where the boxes are manufactured and DW2 testified that he visited the premises but appears not to have written any report of his visit as there is none before tills court. The letter of offer did not specifically mention that a certain type of key should be used for the ballot boxes neither is there any evidence before me that the premises where the Claimant was manufacturing the ballot boxes was insecure. The , defendant therefore cannot introduce terms into the contract that did not exist as at the time the offer was made. I therefore do not find the Claimant liable for those allegations.
I accordingly find that there was a valid contract between the arties which was validly varied by the Defendant. I find also that he Claimant breached the varied term of the centred by failing o supply all of the 750 ballot boxes within the specified period and o the termination was justified in law. Issues 1-3 therefore are resolved in favour of the Defendant.

ISSUES 4 AND 5
1) Any proof of any special damages to enable (entitle) either the Claimant to judgment or the Defendant to judgement.
2) Whether the Claimant or Defendant is entitled to award of general damages.
The evidence before this court does not sustain the Claimant’s claim for N2, 260, 000.00 being the cost of producing an additional 750 ballot boxes as it had already been paid mobilisation to Exhibit C14. This claim is therefore misconceived and cannot stand as the Claimant has not proved that it had supplied the total of 3000 ballot boxes before producing the 750 now claimed in this action. The Defendant on the other hand has also not proved the allegation that it had to re-award the contract for 500 ballot boxes so that claim is also misconceived. It follows therefore that neither party has proved their claims before the court in this matter so these 2 issues are resolved against both parties.

In conclusion therefore both sets of claims before me fail and are dismissed. I believe that the Justice of this case demands that each party should bear its own costs.

A.A. PHILLIP (MRS)
JUDGE
09/04/09

(04-5-09) GILL V. CANAUDMETAL

2009-09-09T16:57:00.000-07:00

IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT IKEJA
TODAY, FRIDAY, THE 20th DAYOF MARCH. 2009
BEFORE THE HON. JUSTICE L.G.A. MARSH-JUDGE

BETWEEN:- SUIT NO.ID/2012/2002

MR. TEDIUS PAUL GILL ... ... ... ... ... CLAIMANT
(Substituted by the Order of Court made on the
30th of June 2008 for himself and on behalf of
the Estate of Late Anthony Adolph Gill)
AND
CARNAUDMETAL BOX NIGERIA PLC. ... ... DEFENDANT

JUDGMENT

Claimant in the amended statement of claim wherein he seeks the following
reliefs against the defendant:

Terminal benefits and entitlement owed the Claimant
by the defendant Company - N30,574.500.00
Solicitor's fees and cost of this suit - N 7.643.625.00
TOTAL - N38.218.125.00
Interest on the terminal benefits at the rate of 30% per annum from June 30, 2002 until judgment sum is fully paid.
The Defendant by an amended statement of defence averred that the Claimant's claim is frivolous, vexatious, gold digging and an abuse of the process of Court and ought to be dismissed with cost.
The Claimant filed amended reply to the amended statement of defence. The suit proceeded to trial on 20th February 2007. Claimant adduced the evidence of two witnesses while the Defendant called only one witness and closed its case. The first Claimant hereinafter referred to as CW 1) Olusegun Otenaike, a retiree and now a consultant. His testimony is as follows:- He knows both Claimant and the Defendant. He retired from Defendant's service.
He tendered the following documents: His written statement Exhibit "A". -
He said he referred to some letters in paragraph 9 of his Exhibit "A". These letters he tendered as Exhibit "B". He tendered Exhibit "C" which he said he refereed to in the same paragraph as letter of appointment.
In paragraph 16 of Exhibit "A", he said he referred to performance review discussion. This he tendered as Exhibit "D".
In paragraph 20 and 21, he referred to a company's policy in existence signed by one Mr. Cole Exhibit "E".
He said he stated in paragraph 17 of Exhibit "A" that long service award ceremony was held in 1999 in honour of the Claimant at which he was a witness to the certificate and gift presented to him. The ceremony was held at a restaurant in Awolowo Road, Lagos. The presents given to the Claimant by one Mr. David Pullen were tendered as ID 1 and ID 2. One Raymond Weill Wrist Watch and a certificate of long service.
Cross-examined, witness admitted he was employed by the Claimant in 1970 by the Crown Cork and Seal Co. Ltd. The company had been sold and no longer in operation. Witness admitted he rose to the post of Managing Director when the company was still in operation. The Claimant was the Managing Director before he assumed that office. He could not remember when he became the Managing Director. The decision that he should assume the post of Managing Director was taken at the board meeting. He could however not say whether the minutes were taken at the meeting. He worked closely with the Claimant for many years and he's familiar with his signature. If shown a document bearing the Claimant's signature, he would identify it. He identified Exhibits "F and F1”. Witness said he was a controller of the company in 1999 while the Claimant was the Managing Director but he was not the one that made the award to himself. He said the award was presented by David Pullen but signed by Mr. GUI, the Claimant as Managing Director. David Pullen was the Overseas Director. He admitted that there was no reference to David Pullen on ID 2. After having had a look at Exhibit "F". Clause 3 and said that on the date mentioned, the Claimant resigned on medical ground. He also said he was not appointed to succeed Claimant on that day and was not sure his appointment took effect on that day. When he joined the company, witness said the Defendant was there and he employed him. Witness said he was told that the Claimant was employed in 1969 and he employed him in 1970. He was with Crown Cork in 1969.
Re-examined: Witness said the Claimant did not retire but resigned as the Managing Director. He said his appointment as Director was not confirmed that day as he had to be given a letter to that effect. The Claimant continued as Chairman.
CW 2 - the Claimant, testified that he was employed in Nigeria by the Crown Cork and Seal Company Nigeria which is part of the Crown Cork U.S.A. In the late 1990’s, he said Crown Cork worldwide took over Carnaudmetal Metal Box Worldwide here in Nigeria. There were three companies - two of them were owned by Crown Cork and Seal while the 3"1 was owned by Carnaudmetal Box. The three companies, he explained were merged together and became known as Carnaudmetal Box Ltd. (Crown Cord & Seal Company). When they were merged, he said he had various positions which were detailed in his written statement on oath Exhibit “G".
He also tendered the following documents. Exhibit "H", copy of the contract referred to in paragraph 3 of Exhibit "G". a wristwatch. Exhibit “J” referred to in paragraph 9 and Exhibit ''K", the copy of the letter by Claimant's Solicitor and letter dated 10th October 2002 and the reply dated 29th October 2002 Exhibits "L and LI".
He also tendered Exhibit 'W letter dated 2nd August 1991 by one Holdron confirming his appointment as Deputy Chairman, also his performance review Exhibit “N” a letter dated 12th June 2001 by one John Conway and another dated 12th June 2001 by David Pullen.
Also the following letters by David Pullen: letter dated 5th April 2001, 9th April 2002 and E-mail dated 28th May 2001 by David Pullen. Exhibits P - P3, the bill of cost, Exhibit "G" and long service award earlier tendered as ID 2 now marked Exhibit "R”.
Cross examined, witness admitted being familiar with Exhibit "A”, and its content and that it is the basis of his claim. He told the Court that at a time he was the Managing Director of Crown Cork and that as Managing Director he presided over Board of Directors meeting and that the minutes of the meeting were taken by the secretary which he later signed. He admitted he signed Exhibit "S".
Witness said the merger between Crown Cork and Carnaudmetal Box took place about 1997 - 1998 in Nigeria and Worldwide. He said merger took place sometimes in 1995. When the merger took place, he said he was asked by the Vice President Carnaudmetal Box to get involved initially with Carnaudmetal Box where there had been some fraud by various managements employed at that time and on a daily basis. He said he travelled from Ibadan to Agbara in Ogun State and helped to reorganise the company eventually handled the sale of their company to Levends Group. After that he said he was asked to go back to Ikeja where there are still two functioning companies. Crown Cork and Seal and Camaud Nigeria Ltd. He said he was asked by both Carnaudmetal Box U.K. and Crown Cork and Seal, U.K. to coordinate the merger of the three Nigerian companies.
After having had a look at Exhibit “T" as directed witness said it reflected the arrangement as he had earlier stated. The arrangement was to cover his normal responsibility with Carnaudmetal Box. He denied being the Managing director of Carnaudmetal Box in 1999 but its Chief Executive Officer. He admitted being presented with Exhibit "R" in 1999 and that Exhibit "R" was signed by him as the Managing Director. Asked why as Chief Executive Officer he also signed Exhibit “V” as Managing p Director, witness explained that there was no difference between the two. All companies UJ operating in Nigeria operate a system whereby after 10, 15, 20 or 35 years in service a certificate is awarded to their employers. It is normally given at the annual Christmas party and that as Chief Executive Officer of the company, he was authorized to sign on behalf of the company because, he was the Senior Executive there. Exhibit "R" he said was awarded to him by the Financial Director but authorised by David Pullen, the Vice President (Africa). He admitted signing Exhibit "R" which he said was a certificate, not an award. He admitted stepping down as M.D. in 1991 on medical grounds. He also admitted that Exhibit "Fl" contained something relating to his stepping down as M. D. in 1991 on medical grounds. He also admitted that Exhibit "Fl" contained something relating to his stepping down as M. D. in 1991. He tendered his term of Employment Exhibit "H". He admitted that Exhibit "H" was a reflection of his arrangement with the company and became effective from March 5. 1980. It does not bear a Nigerian address and in agreement with the law in the United Kingdom. There's no part of it, he admitted that talks about the law in Nigeria and the currency too is not Nigerian. Asked why he had to give medical ground as the reason for his resignation at Crown Cork in 1991, witness told the Court that in 1991 there were series of scandals in the United Kingdom regarding pension fund. The very notorious one he said, was that of the Daily Mirror where they were defrauded. He said he had to look for a way to protect his pension fund. That the company suggested that if he was able to provide medical ground as a reason, they would be able to pay him off particularly as he was not resident here. Asked farther whether it was correct that he retired on medical grounds, witness reacted by saying the document has told the truth, that he resigned on medical grounds. He farther stated that he was employed in 1996 by Carnaudmetal Box as Regional Director. That his term of employment is contained in Exhibit "V” and had dealings with Crown Cork Coordination centre. When he was employed by Carnaudmetal Box, witness said he was in Nigeria but some of the discussions between him and Carnaudmetal Box took place in Nigeria and others outside. Some of the discussions is also contained in the memo by the coordinator centre New York, Exhibit "V”. Some letters, he said were sent to his house address in Spain because he used to spend part of his holidays in Spain from time to time. He denied that the pain on his hips affected his performance. He denied that he was employed outside Nigeria. He said he was subject to immigration law and hence the reason why his letter as address to his house in Spain. He said David Pullen was the assessor of his performance review. He said David Pullen never had to sign and he did not sign his assessment. He admitted that he was paid certain pensions. Asked at what stage was he entitled to pension, whether after service or before service. Witness told the Court that it depended on the circumstances. He said he once stated that he resigned on medical grounds and resignation had nothing to do with pension.
Re-examined, PW 1 said at the time he was paid his pension he had not resigned. DW 1 - Adebayo Joseph Oladele. He works with NAMPAK Nigeria Plc formerly Carnaudmetal Box. He deposed to a written statement Exhibit "Y". He knows Emeka Anyacho. Human Resources Controller of the company. He's no longer with the company. When he was with the company, he deposed to a written address. He tendered the written deposition. Exhibit "Z".
TO BE CONTINUED

CONTINUED FROM LAST WEEK
Cross-examined, witness told the Court that Nampak Nigeria Plc and Carnaudmetal Box metamorphosed into Nampak Nigeria Plc. He said Nampak bought over Carnaudmetal Box. He was not employed by either of the two companies. He said he was employed by Metal Box Company. He told the Court Camauld bought Metal Box and the name became Carnaudmetal Box. Later Crown Cork bought over Carnaudmetal Box and the name became Carnaudmetal box Crown and Seal Company. In the year 2002, he said, Nampak bought over Carnaudmetal Box and Cork and Seal Company. Nampak bought Carnaudmetal Box in 1995. He said he was not sure the information he gave was correct but was sure Nampak bought over the Defendant Company in the year 2002. He knew the Claimant. He met him in 1996 when he, the witness was the Sales and Marketing Controller. He admitted that Claimant was paid his entitlement in 1991. He said the Claimant did not hide the fact that he was invited from retirement to conclude the merger exercise. The only evidence he had on the payment of his entitlement was the Claimant's own statement. He said the Claimant was employed Overseas and retired in Nigeria and it is only where he was employed that the documents relating to his employment would be. Wtness said it did not lie within his jurisdiction to get the Claimant's pay off paper. By that, he meant his retirement benefit. He said the Claimant was paid his total benefits and emolument upon his voluntary retirement from service in the year 2002. He had no documents to show for that but went on to say that it was traditional for anyone in the Claimant's level who retired from the company to retire with his vehicle and his entire payment. That in the case of the Claimant, he went with two vehicles. He was Chairman of Crown. He did not retire in the year 2002. He retired in 1991. Witness said he was not there when the Claimant retired in 1991 but from Exhibit "M" shown to him. the Claimant was to visit the company four times in a year, that he could play the role of Executive Chairman. Performance review discussion, he explained was about meeting with top management to review the performance of the past year and to chart a part for the New Year. He confirmed that Exhibit "N" was the performance review on the Claimant in the year 2000 while Exhibit "D" was the performance review discussion on the Claimant. Mr. Tony Telford, he said. Wrote the review while David Pullen, the African Director of Crown wrote the report on the Claimant. Exhibit "P". he said was sent to Tony Telford on 29th May, 2001 and by Exhibit "P", he went on, the Claimant was appointed Deputy Chairman of Carnaudmetal Box Nigeria with responsibility for Corporate affairs. He was aware of the long service award in 1999 but was not aware that Claimant was given long service award Exhibit “R”. Emeka Emenacho was his colleague but he could not tell why he retired from the company. With this witness, counsel for the Defendant closed his case. Below is a resume of the evidence by the Claimant:
Claimant - Witness was employed by Claimant at Crown Cork and Seal Company Nigeria Ltd. He tendered Exhibit "A". In his Exhibit "A", he said the Claimant continued as Regional Director and Civil Executive of Carnaudmetal Box until he retired on 30th June 2002. He said in his Exhibit that Claimant was employed by Crown Cork and Seal United Kingdom in 1980 and posted to Nigeria in 1980 as alleged by the defendant because the Claimant was the one who employed him in 1970 in Nigeria and he was then Regional Director and general Manager. That Claimant later became the Managing Director of the Company until the merger and that after the merger he continued as Chief Executive of the Defendant's company. That Claimant did not resign his appointment on medical grounds as Managing Director in 1991. That a long service award ceremony was held in 1999 in honour of the Claimant at which he was a witness. He said the award took place at a restaurant in Awolowo Road, Lagos. Claimant was given two presents at the ceremony. One Raymond Weill wristwatch and a certificate of long service award.
By 1970, Crown Cork and Seal had been sold and no longer in operation. Witness assumed the post of Managing Director. The decision was taken at a board meeting. He could not say whether any minute was taken. Claimant did not make the awards to himself. The award was presented by David Pullen, the Overseas Director. He later shifted and admitted that Claimant resigned on medical grounds. That he was not appointed to succeed the Claimant on the day the board meeting was held that is Monday 2. September. 1991. Exhibit "Fl" Clause 3 titled acceptance of Mr. Gills Resignation as Managing Director - stated that Mr. Gill (the Claimant) resigned as Managing Director of the Company with effect from the date (2nd September 1991). The resignation was on medical grounds. Exhibit "Fl" showed that witness was not confirmed as a Director that day. He further shifted grounds after having had a look at Exhibit "Fl" and said the Claimant did not retire but resigned as Managing Director.
CW 2 tendered his statement on oath. Exhibit "G". He also tendered Exhibit "H", his terms of employment with Crown Cork Company Limited. It states that the employee is engaged by the company as Director and General Manager in Nigeria in such capacity as maybe agreed on the following terms and conditions from 1st January 1980. The condition list among others clause (a) that the employee's commencement salary shall be at the rate of #42.000 per annum and shall be payable monthly in arrears on the 1st day of each month.
Clause (m) of Exhibit states that this contract shall be construed in accordance with the law prevailing in the United Kingdom. Witness admitted that Exhibit "H" was a reflection of his arrangement with the company and became effective from 5th March 1980. It does not bear a Nigerian address and is in agreement with the law in the United Kingdom. Witness said he was employed in 1996 by Carnaudmetal Box as Regional Director. That his term of employment is contained in Exhibit "V". His health deteriorated and he was advised by Dr. Laws H. Sevitt. his doctor, a surgeon based in United Kingdom to retire in the interest of his health. Exhibit "IT minutes of the meeting of 2nd September 1991. Exhibit ^Fl" that Claimant retired in 1991. He was employed in Nigeria but some of the discussions relating to his employment took place in Nigeria and other outside the country. He said some of the discussions on his employment were contained in memo by Coordinating Centre New York, Exhibit "V". Some letters were sent to his house address in Spain Villa Ikeja, 7, Carrino de Marco Plaza, Mucharista Campello - Alicante Spain. Witness explained that the reason why his letter was sent to Spain was that he was subject to immigration law. He confirmed Exhibit "W" and admitted he collected pension on his retirement but remained in employment.
Resume of Defendant's evidence. Adebayo Oladele - deposed to written statement on oath Exhibit "V. Knew Claimant in 1996 when he, the witness was the Sales and Marketing Controller. Claimant was employed Overseas and retired in Nigeria. That it is only where he was employed that the document relating to his employment would be. It was not possible to get the Claimant's pay-off paper. He was paid his total

benefits and emolument upon his voluntary retirement in the year 2002. Witness had no document to show for the payment but he retired with two vehicles and his entire payment. He retired in 1991 not 2002.
Both counsel filed written addresses which they adopted on 21/1/09. The Defendant in his written address posits the following issues for determination:-
1. Whether in view of the parties to the terms of employment of 1980 Exhibit "H". the proper panics are before the Court.
2. Whether in view of Exhibit "Fl", the Claimant's action is not statute barred.
3. Whether in view of Exhibit "H" - Terms of Employment of 1980 which is the foundation for the Claimant's claim, whether the Lagos State High Court has jurisdiction to entertain the Claimant's action.
4. Whether in view of Exhibit "FF minute of2Dtl September, 1991, Exhibit "H” the medical report. Exhibit "W". the letters of Claimant's pension payment, the Claimant's first contract of employment did not terminate in 1991.
The Claimant in his written address also posits three issues for determination. These are:-
i. Whether the Claimant was in continuous and unbroken employment of the Defendant Company for 33 years from 1969 - 2002 when he finally retired.
ii. Whether the Claimant is entitiled to the severance package on retirement in 2002 as stated in clause (c) of the terms of employment contract signed by the parties in 1980 (Exhibit "H").
iii. Whether the Defendant Company is estopped from denying that the Claimant served and worked for the Defendant Company for a continuous period of 33 years,
The issue I consider appropriate and which I will adopt for the determination of the suit is whether the Claimant has established that he's entitiled to the relief claimed.
By Exhibit "H", the term of employment between Claimant which also forms the basis of the Claimant's claim among others, reads in part that employee is engaged as Director and General Manager in Nigeria in such capacity as may be agreed on the following terms and condition from 1st January 1980:
The employees commencing salary shall be at the rate of#s42.000 per annum and shall be payable monthly in arrears on the I"1 day of each month. It however ended by saying in clause (m) that there contract shall be construed in accordance with the law prevailing in the United Kingdom. Thus, in the event of any dispute such as the present, the Nigerian Court has no jurisdiction because the parties to the agreement had already indicated that in their agreement.

See: VAD1SNIG. LTD. VS. GREAT NIG. INSURANCE CO. (2007) 4 - 5 SC 236 AT260.
This Court cannot therefore consider clauses B and C of Exhibit "H". Claimant was advised by his doctor, one Dr. Laws H, Sevitt, consultant physician of 141, Hariey Street wrote to suggest that the Claimant should retire in the interest of his health. Pursuant to the advice, the Claimant on Monday. 2nd September 1991 at the board meeting of the company tendered his resignation as Managing Director of the company with effect from that day. It was resolved that resignation of the Claimant, A. A. Gill as Managing Director be and was accepted. Claimant was paid his entitlement 1991. He was paid his total benefits and emoluments. He retired with effect from 30111 September, 1991. Exhibit "M”, a letter written to him reads:

2nd August. 1991.

Mr. Tony Gill,
Crown Cork & Seal Co. (Nig.) Ltd..
P. 0. Box 142.
Ikeja, Nigeria.

Dear Tony,

I write to confirm acceptance of your resignation as Managing Director effective 30 September 1991 and to confirm your appointment as Executive Chairman effective 1st October. 1991.

In this new role you will be expected to visit the companies at least four times per annum and expenses relating to these visits will be reimbursed by Crown Cork in Nigeria.

Yours sincerely.

Sgd. Richard L. Holdron
Managing Director.
He collected his pension #s220,000.00 vide Exhibit "W". Cross-examined by counsel for the Defendant, Claimant admitted receiving his pension but was still in employment. The author of Black's Law Dictionary 6th Edition defines retirement and pension as:
Retirement: Termination of employment, service, trade or occupation upon reaching retirement age or earlier at election of employee.
Pension: Retirement benefit paid regularly, with the amount of such based severally on length of employment and amount of wages or salary of pensioner. Deferred compensation for services rendered.
By a letter dated 13th June 1996. Exhibit "X and T", the Claimant was recalled from retirement and offered the position of Regional Director for Nigeria. As Regional Chairman, the letter indicated that he would still retain his position as Chairman of both Crown and CAN makers but would add the role of Supervisory Director for Carnaudmetal Box Nigeria Pic. The two letters were sent to the Claimant at Villa Ikeja, 7. Carrino de Marco Plaza Mucharista Campello, Alicante, Spain. I agree with the Defendant's counsel that a letter cannot be sent to a person in Spain if such a person is resident in Nigeria.
Cross-examined as to whether other letters addressed to him earlier were directed to a Spanish address. Claimant replied that the letters were addressed to his house in Spain. That he spent his holidays in Spain from time to time. On further cross examination as to whether Carnaudmetal Box employed him outside Nigeria, he replied that he was subject to immigration law, hence the reason why the letters were written and addressed to his house in Spain. That to me sounds ridiculous and only serves to show that Claimant was up to some mischiefs and bolsters up the Defendant's case that the contract of employment the Claimant entered into from 1"* January 1996 was a new contract, not an extension of the 1980 contract.
I accept the fact that the Claimant was the Managing Director in 1999 when Exhibits **N. R and J" were made. He was cross-examined as to why he signed Exhibit "R" as Managing Director while he had earlier referred to himself as Chief Executive Officer. Claimant replied that there was no difference, that all companies operating in Nigeria operate a system whereby after 10, 15, 20. 35 years a certificate is awarded to their employees. That it was normally given at the Annual Christmas Party and that as Chief Executive Officer of the company, he authorized and signed on his behalf.
I must say that upon all the foregoing considerations, I found it hard to believe that the Claimant not hand to fool the Defendant, establish long service and hoodwink the Court. I found it hard to believe the evidence of the Claimant. I accept that of the defence wherever it conflicts with that of the Claimant. I must say the Claimant had failed to establish his claim. Claimant's case is accordingly dismissed.

L.G.A. MARSH
(JUDGE)

(20-4-09) FRN V. EVBODAGHIE

2009-08-27T03:31:00.000-07:00

IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT HIGH COURT No. 34 CRIMINAL DIVISION IKEJA
BEFORE HON. JUSTICE J.O.K. OYEWOLE
TODAY MONDAY THE 2ND DAY OF MARCH, 2009.

SUIT NO: 1D/64C/2007

BETWEEN

FEDERAL REPUBLIC OF NIGERIA....COMPLAINANT/RESPONDENT

AND

CHIEF SUNNY EVBODAGHE....................ACCUSED/APPLICANT

RULING

At the close of prosecution's case, the learned defence counsel Mr. Onyeke opted to make a no case submission. He submitted that the issue for determination is whether the prosecution has made out a prima facie case by establishing the elements of the offences the defendant is charged with sufficient in law to warrant his being called on to enter a defence by the court or whether the evidence adduced by the prosecution witnesses have been so discredited during cross-examination or is so manifestly unreliable that no reasonable tribunal can safely convict on it.

He referred to OMISORE VS STATE (2004) 28 WRN 106 at 126, IBEZIAKO VS C.O.P (1963) 1 ANLR 61 and ONAGORUWA VS STATE (1993) 7 NWLR (PT 303) 49.

He started by considering whether the prosecution has established the elements of the offences alleged against the defendant. On count 1 of attempt to obtain money by false pretences pursuant to Section 5, 8 (b) and 1 (3) of the Advance Fee Fraud and other Fraud Related Offences Act No 14 of 2006, he outlined the ingredients of the said offence and submitted that the prosecution failed to establish any of the said ingredients.
He referred to JEGEDE VS STATE (2001) 14 NWLR (PT 733) 264 and FRN VS OGATINMIR1N (2005) 3 QCCR 191 at 220.
On count 2 of use of premises for sending document containing false pretence contrary to Section 3 of the Advance Fee Fraud and other Fraud Related Offences Act No 14 of 2006, Mr. Onyeke once again outlined the legal ingredients thereof and submitted that the prosecution failed to tender any document containing false pretences that was sent from the defendant's premises or produce or give any evidence of the alleged recipient thereof thereby failing to establish the necessary ingredients thereof.

Moving to the offence of possession of documents containing false pretences pursuant to Sections 6, 8 (b) and 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act No 14 of 2006 contained in Counts 3,5,7 and 9 the learned lead defence counsel once again outlined the legal ingredients thereof. He referred to FRN VS ODIAWA (2006) 5 QCCR 1 at 88-89.

He submitted that for the offence here to be made out, the document involved in its tangible form must have been found in the physical possession of the defendant and that 1 being an illiterate it cannot be assumed that he knew or ought to have known the existence of the alleged documents herein without adequate .proof which was lacking in the case presented by the prosecution.

He urged the Court to dismiss the counts of possession and referred to Section 2 (b) Illiterates Protection Law, Cap 67 Laws of Lagos State, ALOBA VS FRN (2002) 14 WRN 45 at 53, ADETORO VS UBN PLC (2007) ALL FWLR (PT 396) 590 and ZARIA VS OKON (1959) SCNLR 562.

On the counts of forgery in counts 4, 6, 8, and 10 the learned defence counsel once more outlined the necessary ingredients thereof and referred to ALAKE VS STATE (1991) 7 NWLR (PT 205) 567 and BABALOLA VS STATE (1989) 4 NWLR (PT 115) 264.

He submitted that the prosecution failed to show that the documents in question were forged or that it was the defendant who forged them.

He then proceeded to the second leg of his submissions alleging the non reliability of some key prosecution witnesses as a ground for upholding his no case submission. He referred to UBIERHO VS STATE (2004) ALL FWLR 1028 at 1044.

He reviewed the testimonies of PW1, PW2 and PW3 and submitted that they were sufficiently discredited under cross-examination to render them totally unreliable.

He urged the Court to hold that the prosecution failed to make out a prima facie and accordingly uphold the no case submission.

For the prosecution Mr. Ugwu opposed the no case submission and submitted that the issue for determination is whether the prosecution has made out a prima facie case which will require the Honourable Court to call on the defendant to enter his defence.
He equally set out the various legal principles guiding the consideration of no case submissions and referred to The Practice Direction of Lord Parker dated 9th February, 1962 and published in (1962) 1 All E.R 448, EKWENUGO VS FRN (2008) 10 MJSC 79 at 84-85, DABOH VS THE STATE (1977) 11 NSCC 309,
AMINU VS STATE (2005) 2 NWLR (PT 909) 180 at 191, YAU VS STATE (2005) 5 NWLR (PT 917) 1 at 22 and AJIBOYE VS STATE (1995) 8 NWLR (PT 414) 408 at 414.

He reviewed the evidence adduced so far by the prosecution and outlined all the essential elements of the alleged offences. On the count of attempt to obtain money by false pretences, he outlined the essential elements of the alleged offence and reviewed the evidence adduced so far by the prosecution and then submitted that the said offence has been established by the prosecution.

He referred to AGWUNA VS A.G. FEDERATION (1995) 5 NWLR (PT 396) 418 at 438 and STATE VS OLADIMEJI (2003) 14 NWLR (PT 839) 57.

On count 2 of allegedly using premises for sending document containing false pretence, the learned prosecutor once again outlined the ingredients thereof and submitted that this count has been established. He referred to ODUA VS FRN (2002) 5 NWLR (PT 761) 615.

Moving to counts 3, 5, 7, and 9 of unlawful possession of documents containing false pretence, he equally outlined the legal ingredients and the adduced evidence and submitted that the alleged offence has been established. He referred to BLACK'S LAW DICTIONARY 7th Edition 1163.

Finally on the counts of forgery in counts 4, 6, 8 and 10 he similarly outlined the legal ingredients and the adduced evidence and submitted that these counts were equally established.

He referred to ALAKE VS STATE (1991) 7 NWLR (PT 205) 567 at 592, BABALOLA VS STATE (1989) 4 NWLR (PT 115) 264 at 277, OSONDU VS FRN (2000) 12 NWLR (PT 682) 483, AGWUNA VS AG FEDERATION (supra) and STATE VS OLADIMEJI (supra).

He went on to submit that the court is not to determine the guilt or innocence of the defendant at this stage and that the literacy level of the defendant is an evidential issue to be determined by the court at the end of trial and not an issue of address of counsel.
He referred to R VS COKER 20 NLR 62, EKWENUGO VS FRN (supra), OGUGU VS STATE (1994) 9 NWLR (PT 366) 1 at 38, NIGER CONSTRUCTION LTD VS CHIEF OKUGBENI (1987) 4 NWLR (PT 67) 787,
GIRGIRI VS ELF MARKETING (NIG) LTD (1977) 2 NWLR (FT 487) 368 at 378 and OLADEJO VS STATE (1994) 6 NWLR (PT 348) 101.

In totality, he urged the court to overrule the no case submission and call upon the defendant to enter into his defence.

I have duly considered the submissions of the counsel for the two sides.

The sole issue for determination herein is whether the prosecution has made out a prima facie case against the defendant sufficient for the court to call on him to enter into his defence.

The meaning of a submission that there is no case for a defendant to answer is that there is no evidence on which even if the court believes it, it could convict. The question whether or not the court does believe the evidence does not arise, nor is the credibility of the witnesses in issue at this stage.
See R VS COKER & ORS 20 NLR 62. DABOH VS STATE (1977) 11 NSCC 309 at 315 and STATE VS EMEDO (2001) 12 NWLR (PT 726) 131.

As well submitted by both counsel, a no case submission may properly be made and upheld when there has been no evidence to prove an essential element of the alleged offence or when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.
See IBEZIAKO VS C-O.P (1963) 1 SCNLR 99, and STATE VS EMEDO (supra).

It must be pointed out that a prima facie case is not the same as proof, which comes later when the court is to make a finding of guilt of the defendant, it is evidence which if believed and uncontradicted, will be sufficient to prove the guilt of the criminal defendant.
See AJIDAGBA VS I.G.'P. (1958) SCNLR 60 and EMEDO VS'STATE (SUPRA) at 151-152.

It is also important to say that in a no case submission, the Court should be brief in its comments as only one side of the case has been heard and it would be premature and prejudicial to extensively pronounce on the evidence or facts of the case at that stage.
See 'CRIMINAL PROCEDURE IN NIGERIA, LAW AND PRACTICE' by OLUWATOY1N DOHERTY at 272-273, RVS COKER (supra), AJIBOYE VS STATE (1995) 8 NWLR (PT 414) 408 at 413 and CHIEF ODOFIN BELLO VS THE STATE (1967) NMLR 1 at 3.

Count 1 is attempt to obtain money by false pretences pursuant to Sections 5, 8 (b) and 1 (3) of the Advance Fee Fraud and Other "Fraud Related Offences Act No. 14 of 2006.
The particulars of the said Count 1 state that the defendant represented to a certain Richard Walter Dennis Jr that one late Johnson Rosland of Florida USA kept two trunk boxes containing the sum of US $9.5 million, Gold and valuable documents of properties with Inter Trust Global Security firm based in the United Kingdom.

To appreciate the intendment of the offence it is necessary to set out all the provisions of the sections of the Act involved.

"Section 1
(1) Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud -

(a) obtains from any other person, in Nigeria or in any other country, for himself or any other person;
(b) induces any other person, in Nigeria or in any other country, to deliver to any person; or
1 (c) obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by the false pretence, is guilty of an offence under this Act.
(2) A person who by false pretence, and with the intent to defraud, induces any other person, in Nigeria or in any other country, to confer a benefit on him or on any other person by doing or permitting a thing to be-done on the understanding that the benefit has been or will be paid for is guilty of an offence under this Act.
(3) A person who is guilty of an offence under subsection (I) or (2) of this section is
liable on conviction to imprisonment for a term of not more than 20 years and not less than 7 years without the option of a fine.

5. (1) Where a false pretence which constitutes an offence under this Act is contained in a document, it shall be sufficient in a charge of an attempt to commit an offence under this Act to prove that the document was received by the person to whom the false pretence was directed.

(2) Notwithstanding anything to the contrary in any other law, every act or thing done or omitted to be done by a person to facilitate the commission by him of an offence under this Act shall constitute an attempt to commit the offence.

8 (b) A person who attempts to commit or is an accessory to an act or offence under this Act, commits the offence and is liable on conviction to the same punishment as is prescribed for that offence under this Act."
TO BE CONTINUED…

The attempt to commit a crime is an act done with intent to commit a crime and forming part of a series of acts, which would constitute its actual commission if it were not interrupted. The constituent elements of the inchoate crime of an attempt are a physical act by the offender sufficiently proximate to the complete offence and an intention on the part of the offender to commit the complete offence. Acts that are merely preparatory to the commission of the offence are not sufficiently proximate to constitute an offence. See NWANKWO VS F.R.N. (2003) 4 NWLR (PT 809) 1 at 37-38 and JEGEDE VS STATE (2001) 14 NWLR (PT 733) 264.

The evidence adduced so far by the prosecution does not include that of the named victim in this Count, Richard Walter Dennis Jr. No document containing the alleged particulars emanating from the defendant to the said Richard Walter Dennis Jr. and none purportedly received by the said Richard Walter Dennis Jr. was tendered before the Court. No document addressed to the said Richard Walter Dennis Jr. by the defendant was tendered in evidence.

It seems to me that the submission of learned defence counsel, Mr. Onyeke that no case has been made out by the prosecution in the present circumstances to constitute sufficient prima facie case in respect of this Count is well founded, and I so hold.

Count 2 is alleged use of premises for sending document containing false pretences contrary to Section 3 of the Advance Fee Fraud and Other Fraud Related Offences Act 14 of2006.

The particulars are that the defendant permitted his premises to be used for sending documents containing false pretences.

The said Section 3 of the Act provides that:
"'A person who, being the occupier or is concerned in the management of any premises, causes or knowingly permits the premises to be used for any purpose which constitutes an offence under this Act commits an offence and is liable on conviction to imprisonment for a term not more than 15 years and not less than 5 years without the option of a fine."

It is worth reiterating that the specific offence here is that the defendant allegedly permitted his premises to be used for sending document containing false pretences. The evidence placed before the Court by the prosecution witnesses however did not include that any document was sent from the said premises. In fact the prosecution witnesses stated that no internet capability was detected on the computers recovered in the said premises.

There was also no evidence that any document said to contain false pretences emanating from the said defendant's premises was received by anyone.

In light thereof, I cannot but hold therefore that prima facie case was not made out in respect of this Count as well.

Counts 3, 5, 7 and 9 contain allegations of possession of documents containing false pretences contrary to Sections 6, 8 (b) and 1 (3) of the Advance Fee Fraud And Other Fraud Related Offences Act 14 of 2006.

The particulars thereof state that the defendant had certain documents containing false pretences in his possession. Sections 1 (3) and 8 (b) have earlier been set out while Count 1 was being considered. Section 6 provides as follows:
"A person who is in possession of a document containing a false pretence which constitutes an offence under this Act commits an offence of an attempt to commit an offence under this Act if he knows or ought to know, having regard to the circumstances of the case, that the document contains the false pretence."

The offence created is a strict liability one with heavy punishment, and legislations such as this must be narrowly interpreted.

See OKOROAFOR VS THE MISCELLANEOUS OFFENCES TRIBUNAL (1995) 4 NWLR(PT387)59 and JOKANMA VS MOWETE (2001) 6 NWLR (PT 709) 351.

Essential to grounding the offence herein is possession; which must be actual or constructive coupled with knowledge which again maybe actual or constructive depending on the circumstances.

The evidence of the prosecution witnesses is that the defendant is an illiterate who can neither read nor write.

The documents in question here are exhibits P31, P32, P33 and P38 and they were found in the virtual or soft form in a computer admitted by the defendant to be his. The evidence before the Court however is that the said computer was found in the possession of a third party not charged before this Court nor called as witness by the prosecution.

The evidence presented was that the said third party was working on the said computer when the investigators came upon him. The defendant was no where near the said computer but admits ownership thereof,

The offence created here in my humble view is not concerned primarily with ownership of location of the document in question but direct possession of the document thereof.

The documents in this instance were not found in their tangible or hard form on the defendant but located in the soft form in a computer possession of which computer was found on a third party different from the defendant.

Not being literate, the prosecution ought to lead evidence showing actual or constructive knowledge of the existence of the said soft copies of these documents by the defendant.

If a bag belonging to party A was carried by party B and a search thereof discloses prohibited items; proceedings for possession of the found prohibited items can only ordinarily proceed against party B found in possession of the bag in the absence of tangible conclusive evidence of the culpability of party A who owns the bag. Merely asserting that ownership of the said bag is in party A will not suffice, as party B since he had control of the said bag could put those prohibited items in it without the knowledge or awareness of party A who owns the bag. No evidence of actual or constructive knowledge by the defendant of the existence of the soft copies of the documents in question in the computer in which they were found was led by the prosecution and I have no choice than to hold that no case has been made out against him in respect of the said Counts 3, 5, 7 and 9 as well.

The remaining Counts 4, 6, 8 and 10 are that the defendant forged the same documents contained in counts 3, 5, 7 and 9 respectively contrary to Section 467 of the Criminal Code Cap C17, Laws of Lagos State of Nigeria 2003.

Section 467 provides that; "Any person who forges any document, writing, or seal, is guilty of an offence which, unless otherwise stated, is a felony and he is liable if no other punishment is provided, to imprisonment for three years." While sub paragraphs 2 (a) to (q) thereof provide aggravating circumstances which could increase the punishment to imprisonment for fourteen years.

Forgery is defined in section 465 of the Criminal Code as follows:
"A person who makes a false document or writing knowing-it to be false, and with intent that it may in any way be used or acted upon as genuine, whether in Lagos State or elsewhere, to the prejudice of any person, or with intent that any person may, in the belief that it is genuine, be induced to do or refrain from doing any act, whether in the State or elsewhere, is said to forge the document or writing."

The above definition has been held by the Supreme Court to include not only a document, which tells a lie, but also one, which tells a lie about itself, and that it further includes documents made with intent to defraud. See BABALOLA VS STATE (1989) 4 NWLR (PT 115) 264 per NNAEMEKA-AGU JSC at 277.

The elements of the offence of forgery are:
1. That there is a document in writing.
2. That the document or writing is forged.
3. That the forgery is by the accused person.
4. That the accused person knows that the document or writing is false.
5. That the accused intends that the forged document be acted upon to the prejudice of the victim in the belief that it is genuine. See ALAKE VS STATE (1991) 7 NWLR (PT 205) 567 at 592.

A document is said to be forged if the whole or part of it is made by a person with all falsity and knowledge of the falsity and with intention that it may be used or acted upon as genuine to the prejudice of the victim. See OSONDU VS FRN (2000) 12 NWLR (PT 682) 483 at 504.

The prosecution led no evidence of actual forgery of the said documents by the defendant said by its witnesses to be an illiterate.

It also failed to lead evidence that the defendant procured a person to forge the said documents.

It is essential that the evidence adduced by the prosecution goes beyond merely stating that the documents in question were found in a computer belonging to the defendant when the said computer was found in possession of a third party working thereon. The prosecution must show that the defendant knew about the existence of the said documents and either forged it or procured someone to do it.

Mere acknowledgement by a defendant stated to be an illiterate, of ownership of the computer from which the documents alleged to be forged were printed cannot be conclusive and would fall short of the requisite legal ingredients.

In the circumstances thereof I also hold that prima facie case was not made out in respect of Counts 4, 6, 8 and 10 as well.

In totality thereof, I hold that the prosecution did not make out a prima facie case against the defendant in respect of any of the Counts alleged against him herein. I uphold the no case submission and I hereby discharge and acquit the defendant in respect of each of Counts 1 to 10 herein,

Hon. Justice J.O.K Oyewole

Appearances:

Mr. K.M.O. Olusesi with him Mrs. A. Abdulahi for the prosecution.

Mr. E.D. Onyeke with him Mr. Ahamisi and Miss M.O. Adeisa for the defendant.

(30-3-09) THE STATE V.AZUIKE & 2 ORS

2009-08-12T14:50:00.000-07:00

IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT HIGH COURT 34 CRIMINAL DIVISION
BEFORE HON. JUSTICE J.O.K. OYEWOLE
TODAY THURSDAY THE 5TH DAY OF MARCH, 2009

SUITNOID/52C/2006

BETWEEN

THE STATE COMPLAINANT

AND

1. SUNDAY AZUIKE
2. SATURDAY OKOEGUALE DEFENDANTS
3. ANDREW ONYEMECHI
JUDGMENT

By the amended charge dated 16th January, 2007 the 3 defendants were arraigned before this court on 3 counts to which they all pleaded not guilty. The entire counts are reproduced in full as follows:

STATEMENT OF OFFENCE 1ST COUNT
Conspiracy contrary to Section 403A of the Criminal Code Cap C17 Vol. 2 Laws of Lagos State 2003.

PARTICULARS OF OFFENCE
Sunday Azuike (m), Saturday Okoeguale (m) and Andrew Onyemechi (m) on or about the 11th day of January 2004 at Ipaja Abesan Road, Ipaja Lagos in the Ikeja Judicial Division conspired to commit a felony to wit; robbery.

STATEMENT OF OFFENCE 2ND COUNT
Attempted Robbery contrary to Section 403 (1) of the Criminal Code Cap C17 Vol.2
Laws of Lagos State 2003.

PARTICULARS OF OFFENCE
Sunday Azuike (m), Saturday Okoeguate (m) and Andrew Onyemechi (m) on or about the 11th day of January 2004 at Ipaja Abesan Road, Ipaja Lagos in the Ikeja Judicial Division while armed with dangerous weapons to wit: a gun, attempted to commit robbery.
STATEMENT OF OFFENCE 3RD COUNT
Illegal possession of firearms with intent to commit robbery contrary to Section 403 (3) of the Criminal Code Cap C17 Vol.2 Laws of Lagos State 2003.

PARTICULARS OF OFFENCE
Sunday Azuike (m), Saturday Okoeguale (m) and Andrew Onyemechi (m) on or about the 11th day of January 2004 at Ipaja Abesan Road, Ipaja Lagos in the Ikeja Judicial Division were found in a public place in possession of firearms with intent to commit robbery.

At the trial two witnesses testified for the prosecution while each of the defendants testified for his defence from the witness box.

PW1 was Police Sgt Tirimisiyu Abass of the Lagos State Anti Robbery Squad Annex, Ikeja.

His evidence in chief was that he was in the same unit in January 2004 when as a member of a special surveillance team around Gowon Estate, Ipaja some vigilantes in the area drew their attention to a certain bus containing some men. They stopped and searched the said bus and found 6 men and a driver therein. They also found a locally made pistol and 6 live cartridges.

He identified the 3 defendants as being among the men found in the said bus stating that 6 of them were arrested while one of them escaped. He also identified the said locally made pistol and 6 cartridges which were admitted without objection as exhibits PI and P2A to P2F respectively.

He obtained statements from each of the defendants and they explained to him that the person who escaped was the one leading them to rob his boss who supposedly cheated him. They however did not know the name of the said boss or his residence.
In the course of the investigation 3 additional persons were arrested but two of the suspects died in custody while some were released due to lower level of involvement while the present defendants were among the remaining ones charged to Court.

He stated that the original case file forwarded to the Magistrate Court got missing and identified the certified true copies of the extra judicial statements of the defendants. That of the 1st defendant was admitted as exhibit P3 while that of the 2nd defendant was admitted as exhibit P4.

It was submitted for the 3rd defendant that he refutes ownership of the statement sought to be tendered as his extra judicial statement and it was admitted as exhibit P5 with the issues raised reserved for evaluation at the end of the trial.

Under cross-examination from Mr. Bale for the 1st and 2nd defendants, he stated that he recorded exhibit P3 for the 1st defendant at his instruction and subsequently took the 1st defendant and the said statement to his superior officer for endorsement.
He similarly recorded the extra judicial statement of the 2nd defendant.
He stated that the two persons who died in police custody among those arrested for the case died of natural illnesses and that while the vehicle in which the defendants and their colleagues were arrested was impounded, the owner escaped at the time of arrest and could not be traced.

He reiterated that two of the initially arrested suspects were released by the police for lesser involvement and explained the circumstances thereof.

He rejected the suggestion that the defendants were tortured while in police custody and stated that they were pointed out by the local vigilante group in the area where they were arrested.

Under further cross-examination from Mr. Uhie for the 3rd defendant, he gave his service experience but could not remember the other members of his patrol team the night the defendants were arrested although he recalled that the arrest took place around 7 pm.
He also could not recall the registration number of the vehicle in which the defendants were arrested as the one found on it was found to be fake.

He stated that he recorded the extra judicial statement of the 3r defendant for him because he could not read nor write and denied coercing or forcing him to sign the said statement. He further denied that the death of the two suspects who died in police custody resulted from gun shot injuries.

He stated that the recovered gun was found on the 3rd defendant but when the name of one of the dead suspects was put to him he stated that he was not sure if he was the one in whose possession the said gun was found but insisted that it was found in the vehicle in which all the defendants rode while the driver on sighting the police escaped. He denied that the 3rd defendant was charged to court for his inability to bribe his way out of the case.

He was not re-examined.

PW2 was Mr. Gaji Abana a Superintendent of Police attached to the Special Anti Robbery Squad of the SCID, Ikeja Lagos State.

His evidence in chief was that PW1 brought the defendants to him together with their extra judicial statements now in evidence and after reading it to them to confirm authorship he endorsed the said statements.

He identified exhibits P3, P4 and P5 as the said statements and stated that the gun found in possession of the defendants was brought to him as well.

Under cross-examination from Mr. Banu for the 1st and 2nd defendants, he stated that he would not know whether the 1st and 2nd defendants were literate.

He also did not know the location of the vehicle in which the defendants were arrested neither did he know the location of its driver.

He did not know about those who died in police custody neither did he know about those released by the police.
Under further cross-examination from Mr. Uhie for the 3rd defendant he stated that the defendants were brought before him in 2004 but PW1 never told him when exactly they made their said statements.

He was aware that PW1 recorded the said statements for the defendants but never inquired as to why that happened.

He reiterated that he read the statements in question to the defendants in English Language which they confirmed understanding before they signed.

He was shown exhibits P3, P4 and P5 and he identified his endorsements and signatures as well as the dates thereon.

On being re-examined he stated once again that the said statements were brought to him on 11th January, 2004.

With his evidence the prosecution closed its case.

The 1st and 2nd defendants entered into their defence immediately while the 3rd defendant first made a no case submission which was overruled before he also entered the witness box to testify in his defence.

DW1 was the 1st defendant. He used to be a4rader prior to his arrest for this case. His evidence in chief was that on the day in question he was in a commercial bus on the way to the lyana Ipaja market when some policemen forced the bus he was in to stop and all the passengers asked to come down and lie face down. He complied and together with the other passengers they were taken to the premises of the Special Anti Robbery Squad.

After about two weeks in police custody, PW1 brought a note for him to sign but he refused upon which he was subjected to severe torture at the end of which he still refused.

Two men were then taken out in his presence and shot to death, he was threatened with a similar fate upon which he then signed the document.

He could read and write and never knew the 2" and 3rd defendants prior to their joint arrest in the bus.

He was never taken before PW2 and also denied being found with any gun or ammunition but he had the sum of N25,000.00 with him which was discovered on him by the policemen who searched him.

He was not cross-examined for the 2nd defendant but under cross-examination for the 3rd defendant he stated that he never knew the 3r defendant prior to his arrest and he never saw any arms or ammunition with the y defendant or anyone in the said bus when the were arrested.

Under cross-examination by the learned prosecutor Mr. Adamson he stated that he was on his way to Ipaja Market to buy foodstuffs when he was arrested as he trades in foodstuffs at the Ikotun Egbe Market.
Eight of them were arrested together and he described the location of his shop at Ikotun Egbe. He lived in Port Harcourt before coming to Lagos and learnt some trade there.
He attended a Secondary School at Owerri, and insisted that he never knew any of the people arrested with him prior to the day of their arrest.

He identified his signature on exhibit P3 but stated that he was coerced into signing it after over two weeks in detention contrary to the date shown on the said document.

He insisted that he contributed nothing to the contents of exhibit P3 and stated that the two detainees supposedly killed by the police were among those arrested with him in the said bus.

Since he came to Lagos, he had not travelled out of the State.
He was not re-examined.

DW2 was the 2nd defendant. Prior to his arrest he was a businessman dealing in clothes. His evidence in chief was that on the fateful day, he was in a commercial bus on his way to see his younger brother when their bus was stopped by policemen who searched the occupants and arrested them. The sum of N7,000.00 he had on him was taken away and he was clamped into detention for over one year before being charged to court from where they were remanded in prison.
While in police custody, he was forced at the point of death to sign a statement brought to him.
He identified exhibit P4 as the statement he was forced to sign and stated that he could read and write.
He had never known the other defendants prior to their Joint arrest and no weapon was found on him when he was arrested neither was he ever taken before PW2.

He was not cross-examined for the 1st defendant but under cross-examination for the 3rd defendant he stated that he never met the 3rd defendant prior to his arrest and denied that any gun or ammunition was recovered from the 3rd defendant or anyone arrested with him.

Under further cross-examination from the learned lead prosecutor, Mr. Osoala, he gave details of his residence prior to his arrest and gave details of the Secondary School he attended before dropping out in SS1 to learn some handiwork.
He recounted his movement leading to his arrest but due to the beatings he received at the point of arrest he could not remember the number of people arrested with him.

He denied that any gun or ammunition was found in the bus when they were arrested and also denied knowing the 3r defendant prior to their arrest.

He was taken to his house for search after his arrest but nothing incriminating was found therein.

He gave his present age as 30 years and denied ever signing or even seeing exhibit P4 before.
He was not re-examined.

DW3 was the 3rd defendant. He was a trader prior to his arrest selling various alcoholic drinks at Oyingbo market.
On the day he was arrested he left his church at Ikotun Egbe and boarded a bus to lya Ipaja. While on the way, they were stopped by some policemen who ordered all the occupants of the bus to disembark and after searching and beating them, took them to their station where they were all locked up.

They were later interrogated but when he denied being an armed robber and wrote do what actually happened, the said statement was torn and another one written by the investigator who directed him to sign. He refused and was subjected to severe beating until he signed it.
His co defendants are among those arrested with him and the 1st defendant was the first to cave in and sign the prepared statement for him.
He identified exhibit P5 as the statement he was forced to sign to save his life but denied writing it. The said statement was never read or interpreted to him before he signed it.
He denied ever meeting the co defendants or any of those arrested with him prior to his arrest.

Under cross-examination for the 1st and 2nd defendants, he denied ever knowing them prior to his arrest and stated that no weapon was found on him by the police.

Under cross-examination from Mr. Adamson for the prosecution, he stated that he is married with four children and lived at Oyingbo market for over a year selling alcoholic drinks.

He explained the program that took him to his church on a Saturday and gave his wife’s names as well as the names of his kinsmen he knew at Oyingbo market. His education stopped at primary school after which he went into welding before eventually moving into his present trade and later got introduced to his said church He reiterated that he never met the co defendants before his arrest.

He was not re-examined and with his evidence the defence was closed and counsel proceeded to their final addresses.

First to address the court was Mr. Banu on behalf of the 1st and 2nd defendants. He gave some background facts which he wanted the court to take cognizance of and submitted that the alleged confessional statements of the 1st and 2nd defendants could: be said to be voluntarily.

He further submitted that the testimony ofPW2 is inconsistent and that there is no independent evidence with which the allegedly confessional statements could be validated.

He then outlined the principles to be considered in testing the veracity of confessional statements and referred to ONOCHIE VS THE REPUBLIC (1966) NMLR 307.

R VS SKYES (1913) 8 CAR 233 at 236,
R VS OBIASO (1962) 1 ANLR 65 and
AKPAN VS STATE (1992) 6 NWLR (PT248) 439 at 460.

He urged the court to hold that the prosecution has failed to prove its case beyond reasonable doubt and consequently discharge and acquit the 1st and 2nd defendants.

For the 3rd defendants, Mr. Uhie reviewed the charge and evidence adduced at the trial and submitted the following issues for determination as follows:

1. Whether the prosecution has discharged the burden to prove their case beyond
reasonable doubt.

2. Whether from the available evidence the court could convict the 3rd accused as
charged.

Arguing the two issues together, he submitted that the burden of proof in criminal cases lies on the prosecution which burden has not been discharged in the present case. He referred to Section 138 (1) of the Evidence Act and AIGBADION VS STATE (2000) SC (PT 1) at 16.

On count 1, he submitted that merely charging the defendants together will not suffice in the absence of proof of common intention.

On count 2, he submitted that there was no evidence-that 3rd defendant was armed, that he attacked someone and that there is a probable victim and that the evidence adduced would only amount to suspicion which cannot ground conviction. He referred to STATE VS OGUNBUNJO (2001) 1 SC 90 and AIGBADION VS STATE (supra).

Moving to count 3, Mr. Uhie submitted that there was no evidence to indicate that exhibit PI and P2 were found on the 3rd defendant or any of the defendants who were not stated to own die bus in which they were arrested. He referred to Section 135 (I) of the Evidence Act and AYUB-KHAN VS STATE (1991) 2 NWLR (PT 172) 127 at 133.
TO BE CONTINUED…

CONTINUED FROM LAST WEEK…
He submitted that exhibit P5 would not pass the tests of truthfulness and should not be accorded any evidential weight especially when the inconsistent evidence ofPW2 in relation thereto is considered. He referred to IHUEBEKA VS STATE (2000) 4 SC (PT 1) 203 at 218, NWAEBONYI VS STATE (1994) 5 NWLR (PT 343) 138 and ASANYA VS STATE (1991) 3 NWLR (PT 180) 422 at 433.
He urged the court to discharge and acquit the 3rd defendant on all the counts. For the prosecution, Mr. Osoala reviewed the legal ingredients of the offences alleged against the defendants and submitted that onus to prove beyond reasonable doubt is on the prosecution.

He referred to Section 138 (3) of the Evidence Act and DIBIE VS STATE (2007) 9 NWLR (PT 1038) 56. Specifically on count 1 of conspiracy, he outlined the legal ingredients thereof and referred to AITUMA VS STATE (2006) 10 NWLR (PT 989) 468, MAJEKODUNMI VS THE QUEEN (1952) 14 WACA 64, OYEDIRAN VS REPUBLIC (1967) NMLR 122. HARUNA VS STATE (1972) ALL NLR 738 and ERIM VS STATE (1994) 5 NWLR (PT 346) 525.

He referred to the evidence of PWl which according to him was uncontroverted and sufficiently proves this count.
He referred to Section 403 (2) (a) of the Criminal Code Law of Lagos State

On count 2 of attempt to commit robbery, he once again outlined the legal ingredients of the said offence and referred to DPP VS STONE HOUSE (1997) 2 ALL ER 909 at 917, SANNI VS STATE (1993) 4 NWLR (PT 285) 122, IBRAHIM VS STATE (1995) 3 NWLR (PT 381) 37 and ARCHBOLD 37™ Edition paragraph 4104.

He submitted that exhibits P3, P4 and P5 when taken with exhibits PI and P2 conclusively establish the guilt of the defendants and that free and voluntary confessions, are sufficient proof of guilt.

He referred to Section 27 of the Evidence Act, AKPAN VS STATE (2001) 15 NWLR (PT 737) 745, ONYEJEKWE VS STATE (1994) 3 NWLR (PT 230) 444 and NWAEBONYI VS STATE (1994) 5 NWLR (PT 343) 138.
He agreed with the learned defence counsel that the confessional statements should be subjected to validity tests and submitted that exhibits PI and P2 provide the necessary corroboration to validate them.
He referred to OJOGELE VS STATE (1998) 1 NWLR (PT 71) 144 and NWACHUKWU VS STATE (2002) 7 SC (PT 1) 136 at 261.

He submitted further that the confessional statements were tendered without objection thereby constituting a waiver to any subsequent objection.

He urged the court to hold that the discrepancy in the testimony of PW2 was inconsequential.

He further urged the court to hold that the alleged offences have been proved beyond reasonable doubt and as such convict each of the defendants as charged.

I have duly considered the case presented by the prosecution, the defence put forward by the defendants and the final addresses of counsel.

The sole issue for determination herein is whether the prosecution has proved each of the 3 counts of offences alleged against the defendants before this court beyond reasonable doubt as to justify their being found guilty in respect thereof and consequently convicted. In every criminal matter, the defendant is presumed innocent and onus of proof of the criminal allegation is on the prosecution, which onus is discharged on the establishment of the essential elements of the alleged offence. See section 36 (5) of the Constitution, 'Section 138 of the Evidence Act, ALAKE VS STATE (1991) 7 NWLR (PT 205) 567 at 591 per TOBI JCA (as he then was), and NWANKWO VS STATE (2003) 4 NWLR (PT 809) 1 at 35 per EKPE JCA.

To justify conviction, the required standard of proof is proof beyond reasonable doubt and this level of proof is attained when every ingredient, which constitutes the alleged offence, has been proved.
See AYUB-KHAN VS STATE (1991) 1 NWLR (PT 172) 127, ADIGUN VS A.G. OYO STATE (1987) 1 NWLR (PT 53) 678 and EDE VS FRN (2001) 1 NWLR (PT 695) 502 at 515.

It must be appreciated that proof beyond reasonable doubt is not proof beyond any shadow of doubt. The degree of proof that would amount to reasonable doubt need not reach certainty, but it will carry a high degree of probability.

And for the defendant to be entitled to the benefit of doubt, the doubt must be a genuine and reasonable one arising from some evidence before the court. See NWANKWO VS FRN (supra) at 35-36.

The 3 counts alleged against the defendants are as follows:
1. Conspiracy to commit robbery contrary to Section 403A of the Criminal Code Cap C17, Laws of Lagos State 2003. The said Section provides that:

403 (A) "Any person who conspires with any person to commit an offence under section 402 of this Law whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be punished accordingly".

2. Attempted armed robbery contrary to Section 403 (1) of the Criminal Code Cap C17, Laws of Lagos State 2003. The said Section provides that:

403 (1) "Any person, who with intent to steal anything, assaults any other person and at or immediately after the time of assault, use or threatens to use actual violence to any other person or any property in order to obtain the thing intended to be stolen shall upon conviction be sentenced to imprisonment for not less than fourteen years but not more than twenty years".

3. Illegal possession of firearms with intent to commit robbery contrary to Section 403 (3) of the Criminal Code Cap C17, Laws of Lagos State 2003.
The said Section provides that:
403 (3) "Any person found in any public place in possession of any firearms whether real or imitation and in circumstances reasonably indicating that the possession of the firearms is with intent to the immediate or eventual commission by that person or any other person of any offence under section 402 above shall upon conviction be sentenced to imprisonment for not less than fourteen years not more than twenty years".

The facts grounding the 3 counts against the defendants are the same and it may therefore be worthwhile to begin by evaluating the entire evidence adduced.

The prosecution called two witnesses both police officers, one of them claimed to have been among those who arrested the defendants and he it was who obtained their extra judicial statements exhibits P3, P4 and P5 from which they all resiled at the trial. He produced exhibits PI and P2A-P2F as having been recovered from the possession of the defendants,

PW2 was the superior police officer who supposedly endorsed the said extra Judicial, confessions after ascertaining the voluntariness thereof but contradicted himself on the dates on which they were said to have been brought to him.

All the defendants denied having been brought before him, his contradictory assertions on the dates they were brought did not assist his veracity.

It is significant that only PWl could be found out of those who supposedly arrested the defendants on the fateful day and none of the vigilante group who supposedly drew the attention of his team to the bus said to have conveyed the defendants was produced. To worsen the situation, PWl could not recall the names of any of his colleagues on the same patrol beat with him when the defendants were supposedly arrested.

Furthermore, the bus in which the defendants were said to have been arrested was never produced at trial despite the crucial role it played. PWl claimed the said bus was blue color while all the defendants claimed they were arrested in a commercial bus. It is a notorious fact that commercial buses in Lagos are never painted blue.
The presence of this bus would have resolved the issue and serve as vital corroboration for the case presented by the prosecution on whom lies the onus of proof.

The prosecution also tendered exhibits PI and P2A to P2F said to be the locally made gun and 6 rounds of live ammunition said to have been found on the defendants at the time of arrest.

None of the defendants admitted to these exhibits being found in their possession. The evidence of PWl on this issue became shaky when he veered from his earlier assertion that they were recovered from the 3rd defendant and became unsure.

He could not recall any member of his team who participated in the arrest and recovery and none of them was called as witness.

PW2 testified that when the defendants were brought before him for the endorsement of their supposed confessions only exhibit PI was brought. He knew nothing about the arrest of the defendants and was emphatic that only the gun, exhibit PI was brought leaving out the cartridges exhibits P2A-P2F despite the fact that the confessions he was to endorse covered the said cartridges.

As mentioned earlier, the prosecution tendered exhibits P3, P4 and P5 as the extra judicial confessions of the defendants from which the defendants all resiled at trial giving various accounts that would have justified objections to the admissibility of the said statements at the stage when they were sought to be tendered.
The issue of voluntariness would have been resolved in a trial within trial but this opportunity was waived by the failure of defence counsel to object on that ground, leading to the said documents being admitted without objection.

The retraction and setting up of contrary stories by the defendants necessitates that the court would only act on the retracted confessional statements on being satisfied after testing the veracity thereof by considering whether there is anything outside the confessions to show that they are true, whether the statements are corroborated, no matter how slightly, whether the facts contained therein, so far as can be tested, are true, whether the defendants had the opportunity of committing the offence, whether the confession of the defendants was possible, and whether the confessions were consistent with other facts, which have been ascertained and proved.
See ALARAPE VS STATE (2001)5 NWLR (PT 705) 79,
EGBOGHOME VS. STATE (1993) 7 NWLR (PT 306) 383
IBINA VS. STATE (1989) 5 NWLR (PT 120) 238 at 248 and
NWOSU VS. STATE (1998) 8 NWLR (PT 562) 433 at 442.

A defendant who wants to impeach his earlier extra judicial statement has to establish that his earlier confessional statement cannot be true or correct by showing any of the following events or instances;

(a) That he was not correctly recorded or
(b) That he in fact did not make the statement or
(c) That he was unsettled in mind at the time he made the statement or
(d) That he was induced to make the statement.
See ONWUMERE VS STATE (1991) 4 NWLR (PT 186) 428 at 440.

In the present case, all the defendants gave evidence from the witness box and tried to impeach the confessional statements credited to each of them. They denied all the material admissions contained in the said statements and denied having anything to do with the alleged offences.

PW2 gave evidence that the defendants were brought before him and on being satisfied that they voluntarily made the said statements endorsed each of them.

In the course of cross-examination, he contradicted himself on the dates the endorsements supposedly took place giving a different date from that shown on the face of the said documents. Re-examined he maintained the said contradiction.

This contradiction substantially weakened the corroborative quality of his testimony for the veracity of the statements in question.

When related with the earlier defects pointed out in the prosecution's case, it is evident that doubts have been created which must only be resolved in favor of the defendants and cannot permit the accreditation of the said exhibits P3, P4 and P5. See NWANKWO VS FRN (supra).

Having reached this conclusion, and in total consideration of the case presented by the prosecution, I must hold that the prosecution has failed to discharge the onus on it to prove its case beyond reasonable doubt against the defendants.

In the circumstances therefore, I find each of the defendants not guilty on each of the 3 counts alleged against them before this Court and I hereby discharge and acquit each of them on each of the said 3 counts.

Appearance;

Mr. O.G. Osoala, with him Mrs A. Adeyioka, Mr. O.A. Adamson, Mrs. I.I. Isiyola, Miss O.O. Taiwo and Mrs. R. I. Salami for the State.

Mr. A.J. Banu for the 1st and 2nd Defendants.
Mr. E. Uhie for the 3rd Defendant.

FRN VS MADU (JUDGEMENT)

2009-04-05T00:12:00.000-07:00

JUDGMENT

This was the case for the defence.

FRN VS MADU (CONTD)

2009-04-05T00:10:00.000-07:00

STATEMENT OF OFFENCE – 16TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 14th day of February 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$32, 000 (Thirty two Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No, FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 17TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 20th day of February 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$65, 000 (Sixty Five Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 18TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 4th day of March 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$44,000 (Forty Four Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE-19TH COUNT
Forgery contrary to Section 467(2)(1) of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 31st day of May 2002 at Lagos within Ikeja Judicial Division with intent to defraud forged acknowledgment receipt for the sum of N9, 329,600 (Nine Million, Three Hundred and Twenty Nine Thousand, Six Hundred Naira Only) purported to have been Issued by one Virginus Chukwu.

STATEMENT OF OFFENCE – 20TH COUNT
Uttering contrary to Section 468 of the Criminal, Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003,

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 6th day of April 2005 at Lagos within Ikeja Judicial Division with intent to defraud knowingly and fraudulently uttered forged acknowledgment receipt for the sum of N9, 329,600 (Nine Million,Three Hundred and Twenty Nine Thousand, Six Hundred Naira Only) to Mr. Philip Ngoke of Economic and Financial Crimes Commission as genuine.

STATEMENT OF OFFENCE – 21ST COUNT
Forgery contrary to Section 467(2)(1) of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 12th day of August 2002 at Lagos within Ikeja Judicial Division with intent to defraud forged acknowledgment receipt,for the sum of N6, 664,000 (Six Million, Six Hundred and Sixty Four Thousand Naira Only) purported to have been issued by one Virginus Chukwu.

STATEMENT OF OFFENCE – 22ND COUNT
Uttering contrary to Section 468 of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 6th day of April 2006 at Lagos within Ikeja Judicial Division with intent to defraud knowingly and fraudulently uttered forged acknowledgment receipt for the sum of N6, 664.000 (Six
Million, Six Hundred and Sixty Four Thousand Naira Only) to Mr. Philip Ngoke of Economic and Financial Crimes Commission as genuine.

STATEMENT OF OFFENCE – 23RD COUNT
Forgery contrary to Section 467(2)(1) of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 11th day of March 2003 at Lagos within Ikeja Judicial Division with intent to defraud forged acknowledgment receipt for the sum of N11, 728,640 (Eleven Million, Seven Hundred and Twenty Eight Thousand, Six Hundred and Forty Naira Only) purported to have been issued by one VirgInus Chukwu.

STATEMENT OF OFFENCE – 24TH COUNT
Uttering contrary to Section 468 of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 11th day of March 2003 at Lagos within Ikeja Judicial Division with intent to defraud knowingly and fraudulently uttered forged acknowledgment receipt for the sum of N11,728,640 (Eleven Million, Seven Hundred and Twenty Eight Thousand, Six Hundred and Forty Naira Only) to Mr. Philip Ngoke of Economic and Financial Crimes Commission as genuine.

STATEMENT OF OFFENCE – 25TH COUNT
Forgery contrary to Section 467(2)(1) of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 12th day of January 2001 at Lagos within Ikeja Judicial Division with intent to defraud forged NNPC document titled "Contract Agreement No FGN/NNPC/3160/X2X001” purported to have been issued by NNPC.

STATEMENT OF OFFENCE – 26TH COUNT
Uttering contrary to Section 468 of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 12th day of March 2003 at Lagos within Ikeja Judicial Division with intent to defraud knowingly and fraudulently uttered forged NNPC document titled "Contract Agreement No FHN/NNPC/3160/X2X001" to Ismael Lightbourne of Bahamas as genuine."

The accused person pleaded not guilty to the charge. The Prosecution opened its case on the 15th of November 2006.

PW1 was Musibau Adegbolahan Awoderu a Police Inspector attached to the EFCC.

He testified that sometime in December 2004, the EFCC received through an informant who was not named, an information that one Ishmael Lightbourne of the Bahamas was swindled by fraudsters from Nigeria. The informant supplied the address of the victim. The EFCC sent an e-mail to the victim requesting for details of the scam. He replied via e-mail and sent down six wire transfer slips. He also sent a summary of the payments made to the fraudsters for the purported NNPC contract.

He testified that the accused person was arrested on the 1st of March 2005. He obtained his statement under caution. The accused person made additional 7 statements also under caution.

PW1 tendered the victims e-mail Exhibit P1, Barclays Bank of Ghana Wire Transfer as Exhibit P2, Wire Transfer of Bank of America, Exhibits P3 - P7, Summary of payments Exhibit P8 and the purported NNPC document Exhibit P9. He also tendered the statements of the accused Exhibits P10 - P17.

PW1 was cross-examined extensively. Defence Counsel tendered Exhibits Dl - D5 through him.

PW2 was Philip Ngwoke an investigator with the EFCC. He testified that he was instructed by his team. leader to record additional statements from the accused. He tendered Exhibits P18 - P22 statements of the accused which he said he recorded under caution.

PW3 was Yayaha Bello of the EFCC. He testified that he led a team of operatives to Enugu to arrest the accused person. A search was conducted in his house after which he was flown to Lagos where he made his statement to PW1.

He testified that the accused person implicated one Virginus Chukwu as the person who used his account to defraud the victim. The accused person presented acknowledgement of payment receipts evidencing payment of the Naira equivalent of the Dollars paid into his account to Virginus Chukwu. On the strength of this allegation, Virginus Chukwu was arrested. He denied participating in the crime. He denied the documents acknowledging payment of Naira equivalent. These documents were admitted as Exhibits P23, P24 and P25. He testified that the signature of Virginus Chukwu in his letter of employment with the company of the accused and his offer letter Exhibits P26 and P27 were sent to the Forensic Document Examiner to compare with Exhibits P23 - P25. The handwriting analysts reports were admitted as Exhibits P28 and P29 respectively.

He testified that the accused person refunded some US Dollars which were remitted to the victim by the EFCC. The witness tendered copies of the Bonds to produce Exhibit for the various sums and all the correspondence relating to the remittances to the victim. These documents were admitted as Exhibits P30 - P50.

PW4 was Donatus Ugwu an Assistant Superintendent of Police attached to the EFCC. He testified that he accompanied PW3 to Enugu to arrest the accused. He was also present when the house of the accused was searched. He said in the course of the search, they recovered the International Passport of the accused person as well as £4,720. AH the items recovered were endorsed at the back of the search warrant.

He testified that in the course of investigation, the accused person made a refund of the sum of £2,500, That he also agreed to use the £4,720 recovered from him as part of the refund. He made an application to collect these sums and change to dollars which is the currency of the victim and for the EFCC to remit same. The application was approved and the money was changed to dollars and remitted to the victim. The witness identified Exhibit D4 the Search Warrant. He tendered the International Passport of the accused admitted as Exhibit P51 and the two applications of the accused to convert the money to dollars, exhibits P52 and P53 respectively.

PW5 was Muazu Abdullahi a Superintendent of Police and the Document Examiner of the EFCC. He gave evidence of his qualifications and experience as a handwriting analyst and document examiner. He testified that in May 2005, he received a letter from the Director of Operations EFCC accompanied by two sets of documents. The first was the disputed signature marked X and the second set the standard signature marked A for comparison.

He testified of his analysis of the two sets of documents and stated that his conclusion is that the two signatures are replicas. He said there is traced forgery of document marked A, The one marked X is a forged signature. He said he issued a report of his findings dated 7th June 2005.

He stated that on the 26th of April 2006, he received another letter from the EFCC also accompanied by the sets of document marked X - X2 and A - Al for comparison. He carried out the forensic analysis and his conclusion was that the disputed signatures marked X - X2 were forged signatures in a class of forgery known as free hand simulation. He issued a report dated 13th May 2006 Exhibit 29.

The witness identified Exhibits P28, P28(i) & P28(ii) the documents in respect of the 2005 examination and Exhibit P29(i-iv) in respect of the 2006 examination.

PW6 was Ishaq Mohammed an investigator with the EFCC. He testified that on the 16th of September 2005 his team leader Yahaya Bello asked him to record the statement of the accused person in relation to $10, 000 he brought as part payment of the money he defrauded Ishmael Lightbourne. He cautioned the accused person and the accused person asked him to assist him to write the statement. He dictated the statement and he helped him to write it. He read it over and the accused confirmed it and signed. He said he could not remember the reason the accused person gave for his inability to write the statement himself. The statement was admitted as Exhibit P55.

PW7 was Chukwu Virginus Nnajiofor, He testified that the accused person was his in law. He said on the 2nd of February 2005, he was invited to the EFCC where he was informed that the accused person said that he used his account to lodge in money. The EFCC showed him an acknowledgement receipt which he was purported to have signed. He said he did not sign any receipt and he did not pay any money into the account of the accused person. He also told them that he never asked the accused person to build houses or buy cars for him.

He said he was shown Exhibits P23, P24, P29 (iii) (iv) and (v) and he told the EFCC that he did not sign these documents.

PW8 was Alien Aiyelaye Alamman a Banker with Unity Bank formerly Intercity Bank. He testified that between 20/9/2005 - 20/7/2006, the EFCC requested that the Bank transfer money from their domiciliary account totaling $87,701.00 in four different transfers to one Ishmael Lightbourne of Peaceful Waters Company Ltd in Bahamas. The transfers were done as instructed. He identified Exhibits P31 - P34, P36 - P39, P41 - P49 as the documents for the transfer.

He also testified that they sent the copies of the Swift Message instructing their Bankers Offshore to transfer the funds to the EFCC to evidence the transfer to Ishmael Lightbourne.

The Swift Messages of 1/8/2006, 18/4/2006, 29/11/2005 and 2/9/2005 were admitted as Exhibits P56 - P59 respectively.

This was the case for the Prosecution.
Relevant portions of the cross-examination of the Prosecution witnesses will be referred to in the course of this judgment.

DW1 was Igwe Godwin Madu the accused person. He testified that he is a traditional ruler and businessman. He stated that on the 29/12/2004, one DSP Mrs. Ifeoma Ezeona from Alagbon came to his house with three men that he should follow them to Alagbon because there is a petition against him. He told them that his coronation was in two days. Two of the men told the DSP to allow him to come after the coronation. The DSP agreed and gave him appointment for the 9th of January which appointment he honoured. He tendered the complimentary card of the DSP and his coronation programme as Exhibit Dll and D12.

He testified that he is from the same village as Virginus Chukwu PW7 and there have been some issues between them as a result of his installation as Igwe. "He stated that when he got to Alagbon on the 9th, he saw the DSP and 3 men who introduced themselves as representatives of one Ishmael Lightbourne. He told the DSP that he had never met the man. The DSP took all of them to the office of the ACP where the DSP brought out a petition that he defrauded Ishmael Lightbourne who alleged that he lodge some money into his account for, him to supply aluminium profiles.

He denied the allegation. The ACP told him to go and write his statement with the DSP. As they were going, one of the officers who came with the DSP to his village to arrest him came to ACP's office. The ACP came later to the DSP's office and told her to be careful with this case that these petitioners are not the real petitioners, that the real petitioners are from his village. The DSP left the office and came back after two hours. She demanded for N10m to settle the case. He told her he did not have that kind of money. She threatened him with EFCC. The three men did not talk. She put a call through to Yayaha Bello.

After about 2 or 3 weeks, Yahaya Bello came to his village with Frank Ezeona the husband of Ifeoma Ezeoma the DSP. He tendered the complimentary card of Frank Ezeona as Exhibit D13.

He testified that when he got to the EFCC, Yayaha Bello brought out a petition on the letter head of Liberty Chambers who said they are representing an NGO New Citizen Group of which Frank Ezeona is the President.

In the petition, he was alleged to have defrauded one Ishmael Lightbourne with other people. He denied the allegation. He was asked to write his statement which he did. He said they showed him printed Bank Slips showing that money was lodged into his account and the sender of the money was Ishmael Lightbourne.

He said he admitted that the account names were his own but he did not know Ishmael Lightbourne. He said that he could remember that he gave his account number to his in-law Virginus Chukwu PW7 and Ikem Esel Robert. PW7 came to him in 2001 that he has foreign exchange that he wants to sell to him. He told PW7 if it is not fraudulent money or drug money he can use the account and he will give him the Naira equivalent upon his collecting 2% Commission for the Bank Charges and other expenses, PW7 agreed. He stated that PW7 used to sign acknowledgement receipts for the Naira equivalent. He identified Exhibits P23, P24 and P25 as some of the acknowledgments.

He testified that PW7 made a statement to NDLEA where he admitted that he bought him four exotic cars and he built houses for him at the time the lodgments were made. CTC of the statement of PW7 to NDLEA was tendered as Exhibit D14.

The accused person confirmed that he made refund of $88, 000 at the EFCC. He said when he finished writing his statement, Yayaha Bello came in and saw where he said he collected 2% of the total money lodged into his account. The 2% was about $16, 000 according to the lodgment but Yayaha Bello said he must pay $100, 000 before he can end the case. He agreed because it dawned on him that the N10m the DSP was asking for and this $100, 000 was about the same amount.

I think I need to pause here to say that Yahaya Bello testified as PW3 and he was never confronted with these allegations under cross-examination.

The accused person testified further that he and PW7 were in-laws because PW7 married his senior sister. They were very close until 2003 when he was presented as the Igwe Elect against PW7's father. That was when PW7 began to write petitions against him first to the former Governor of Enugu State and later to Alagbon and to the EFCC. On the day of his coronation PW7 was absent with his family. Instead, they went to another chieftaincy ceremony for their father.

DW2 was Raphael Onwusuligbo a Police Inspector and document examiner attached to the Forensic Science Laboratory Force C. I. D. Annex Alagbon Close Ikoyi Lagos.

He gave evidence of his qualifications and his experience as a handwriting analyst. He stated that he was subpoened to testify in this case. His office received a letter on the 10th of October 2006 later corrected to be 5th. of October 2006 from the office of U. C. Ikegbule Ibrahim Tahir and Associates to examine some documents marked Al, A2, A3, A4, X and XI. He said he carried out the examination and he came to the conclusion that one signatory signed ail the documents. He wrote his opinion and issued a report to U. C. Ikegbule & Associates.

He tendered Exhibits D16- D25 and explained the comparative table Exhibit D25 to the court. He also stated that he used the video spectra comparator and other apparatus to do the comparison.

FRN VS MADU

2009-04-05T00:08:00.000-07:00

IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT COURT 31 (CRIMINAL DIVISION)
BEFORE HON. JUSTICE M. O. OBAPINA (MRS.)
TODAY THURSDAY THE 19TH DAY OF FEBRUARY2009

CHARGE NO: ID/114c/2006

BETWEEN:

FEDERAL REPUBLIC OF NIGERIA PROSECUTION
AND
1. IGWE GODWIN MADU (ALIAS USMAN MUSTAPHA) ACCUSED
2. GODDYSON WEST AFRICA LTD

JUDGMENT

The 1st accused person (hereinafter called the accused person) was arraigned with the 2nd accused before this court first on a 24 count charge dated 11th September 2006 and later on 26 count Amended charge dated 7th November 2006. He pleaded not guilty for himself and on behalf of the 2nd accused.
The 26 count charge reads as follows:-

"STATEMENT OF OFFENCE – 1st COUNT
Conspiracy to obtain money by false pretences contrary to Sections 8(a) and 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 24th day of May 2002 at Lagos within Ikeja Judicial Division with intent to defraud conspired to obtain money by false pretence from Mr. Ishmael Lightbourne of Bahamas.

STATEMENT OF OFFENCE – 2ND COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 24th day of May 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$45, 000 (Forty Five Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 3RD COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 24th day of May 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$25, 000 (Twenty Five Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 4TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 24th day of May 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$50, 000 (Fifty Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 5TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act. No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 2nd day of October 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$47,037 (Forty Seven Thousand, Thirty Seven United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 6TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 24th day of October 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$39,577 (Thirty Nine Thousand, Five Hundred and Seventy Seven United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 7TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John- (still at large) and others still at large on or about the 6th day of November 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$35,000 (Thirty Five Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 8TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 19th day of November 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$30,000 (Thirty Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 9TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 22nd day of November 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$40,252 (Forty Thousand, Two Hundred and Fifty Two United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 10TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias- Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 18th day of December 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$72,000 (Seventy Two Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the-said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 11TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 7th day of January 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$62,000 (Sixty Two Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 12TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 22nd day of January 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$36,373 (Thirty Six Thousand, Three Hundred and Seventy Three United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE-13TH COUNT
Obtaining money by false pretences contrary to section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act. No 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE

Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 28th day of January 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$35,135 (Thirty Five Thousand, One Hundred and Thirty Five United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 14TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 4th day of February 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$45,000 (Forty Five Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 15TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 11th day of February 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$20, 000 (Twenty Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
To be continued…

ADEKUNLE V DADA & 5 ORS

2009-04-05T00:04:00.000-07:00

IN THE HIGH COURT OF LAGOS STATE
IN THE IKE3A JUDICIAL DIVISION
HOLDEN AT COURT 31
BEFORE HON. JUSTICE M. O. OBADINA (MRS.)
TODAY MONDAY THE 9TH DAY OF FEBRUARY 2009

SUITNO: ID/3506/1996

BETWEEN:

CHIEF OLUSAN30 ADEKUNLE CLAIMANT/RESPONDENT

AND

1. ALHAJA SALIMOTU DADA
2. ISIAKA YUSUF OGUNLEYE - JUDGMENTCREDITORS/APPLICANTS
3. FATAI YUSUF OGUNLEYE
4. JIMOH YUSUF OGUNLEYE
5. LASISI YUSUF OGUNLEYE
6. ALHAJI IBRAHIM ABDULLAH

AND

1. JACOB ADELOLA JUDGMENT DEBTORS/RESPONDENTS

2. MADAM ADIJATU OMO-OBA

RULING

The Judgment Creditors/Applicants Motion on Notice is dated 18th September 2008. It is brought pursuant to Order 39 Rule 1 of the High Court of Lagos State Civil Procedure Rules 2004 and under the inherent jurisdiction of this court.

The Applicants are praying for:
"An order discontinuing and or striking out this interpleader summons on the ground that this court has no jurisdiction to entertain same"
The grounds upon which this application is brought are:-

1, That the proceedings by way of Interpleader Summons under Order VI of the Judgment (Enforcement) Rules presuppose and or assume that the property to which the proceedings relate is still in the custody of the bailiff and or Deputy Sheriff.

2. The property to which this proceedings relate is no longer in the custody of the bailiff or the Deputy Sheriff.

3. Interpleader summons proceedings in the circumstance is inappropriate and violently violates the rule in Madukolu V Nkemdilim (1962) 2 SCNLR 341.

In support of the application is an 8-paragraph affidavit sworn to by Sikiru Daramola litigation clerk in the Firm of Messrs Bisi Adegunie & Co. Solicitors to the Judgment Creditors/Applicants.

In paragraphs 3 " 6/ the deponent averred as follows:"

"3. That judgment was delivered in this suit in respect of the properties known as Nos 2 and 4 Ogedemgbe Street Agege in favour of the Judgment Creditors/Applicants on 2th February 2003.

4. That execution was levied on the premises in January 2006 and possession of the premises was handed over to the Judgment Creditors/Applicants

5. That attached herewith and marked Exhibit A is a copy of Form O1 or Certificate of Execution of Warrant of Possession issued to the Judgment Creditors/Applicants
by the Deputy Sheriff of the Honourable Court.

6. That Lukman Qgunsetan of counsel informed me at my office on Tuesday 16th September 2008 at about 12 noon as follows and I verily believe:

(a) That the Deputy Sheriff of this Honourable Court delivered possession of the property to the Judgment Creditors/Applicants in January 2006.

(b) That the Deputy Sheriff of this Honourable Court no longer has any power to issue interpleader summons in respect of the said property."

Attached as exhibit to this affidavit is a photocopy of "Form 0" dated 3rd February 2006,

Applicants counsel Lukman Ogunsetan filed a written address dated 18th September 2008. He formulated only one issue for determination to wit:

"Whether in the circumstances, the claimants' claim can be ventilated by way of interpleader summons"

He argued that interpleader proceedings is a suit to determine a right to property held by a disinterested third party (called a stakeholder) who is in doubt about ownership and who therefore deposits the property with the court to permit interested parties to
litigate ownership. He referred to Blacks Law Dictionary 8th Edition page 836.

He submitted that a necessary feature of the interpleader proceedings is that the property the subject matter of the proceedings must be in the possession of a disinterested party.
Where, as in this case, the proceedings is a Sheriffs Interpleader, then the property must still be in the custody of the Deputy Sheriff.

In this case, the Deputy Sheriff levied execution in January 2006 and issued Form "O".1 The issuance of Form "0" by the Deputy Sheriff renders him functus officio as far as the property is concerned. He is therefore incapable of issuing interpleader summons for the purpose of determining the issue of ownership between the judgment creditors and any rival claimant.

He relied on the locus classicus case of Madukolu v Nkemdilim (1962) 2 SCNLR 341 and urged the court to strike out the Interpleader Summons.

The claimant/respondent opposed the application and filed a 4-paragraph counter affidavit deposed to by one Benson Mark process clerk in the chambers of S, A. Lawal & Co claimant's counsel.
In paragraphs 2 and 3, the deponent averred thus:-

"2. That I have read the affidavit of Sikiru Darambia sworn to on 19th September 2008 and paragraphs 4/ 5 & 6 of the affidavit are denied.

3. That Adewale Lawai/ counsel to the claimant informs me and I verily believe as follows:-

(a) That Mr. Jide Craig then a Bailiff of court informed him and he verily believed him that he served the Notice of Claim to attach property (Form 42) on Messrs Bisi
Adegunie & Co on 31/1/2008"

Respondent counsel S. A. Lawal filed a written address dated 30th October 2008. He formulated only one issue for determination thus:-

"Whether Exhibit A Certificate of Warrant of Possession as exhibited is enough to prevent the court from exercising jurisdiction in the interpleader proceedings."

Learned counsel argued that Exhibit A is at variance with paragraph 6(a) of the affidavit in support which states that possession was delivered in January 2006 while Exhibit A is dated 3rd February 2006.

He urged the court-to reject this deposition. He also urged the court to take notice of the alteration on the year shown in Exhibit A. Furthermore, Exhibit A being a public document within the meaning of Section 109 of the Evidence Act ought to have been
certified to, be admissible. He relied on the case of Yero V LIBN Ltd (2005) 5 NWLR (Pt. 657) 470.
Learned counsel urged the court to consider its records and take notice of the following facts,
(a) Letter dated 27/1/2006 informing the Deputy Sheriff of the interest of the claimant in the attached property known as 4/ Ogedemgbe Street Agege Lagos.
(b) Notice of Claim to attached property (Form 42) was issued and dated 30th January 2006 by the Registrar of the High Court.

(c) That Form 42 was served on Messrs Bisi Adegunie & Co Solicitors to the Applicants on 31/1/2006.

He argued that there is nothing on record to show that possession of the property was handed over to the Applicants on or before 31/1/2006 when Form 42 was served. That even Exhibit A states that possession was given on 3rd February 2006.

He urged the court to hold that at all material times, the claimant was properly before the court and that this court has jurisdiction to entertain the interpleader summons pursuant to the Sheriff and Civil Process Act and under its inherent jurisdiction.

In his oral reply, Applicants counsel argued that the only opposition of the claimant is the non-certification of Exhibit A. He referred to the following cases - Abacha V Fawehinmi (2000) 6 NWLR (Pt. 660) 228, Adejumo & Ors V Military Governor
Lagos State (1970) 1 All NLR 183 at 187, Oduya V Nzeogwu (1996) 1 NWLR (Pt. 426) 713 at 722 on objection to exhibit attached to an affidavit. He urged the court to accept the document as the practice is that photocopy of documents is often attached in interlocutory applications.

In determining this application/ the court will make use of documents in its file not tendered as exhibits. For the power of the court to do this/ I refer to the case of NASCO Management Services Ltd V A. N. Amaku Transport Ltd (2003) 2 NWLR
(Pt. 804) 290 at 334-335.

Interpleader Summons are of two types, the Sheriffs Interpleader and the Stakeholders Interpleader. In the Sheriffs interpleader, the proceedings are initiated by the Sheriff/ where a third party claims that the property on which execution is levied or about to be levied belongs to him 'and not to the judgment debtor. Interpleaders other than Sheriffs Interpleaders are known as Stakeholders Interpleaders. See Civil Procedure in Nigeria 2nd Edition by Fidelis Nwadialo Page 1124.

Section 34 of the Sheriffs and Civil Process Act Cap 407 Laws of the Federation 1990 deals with interpleader by Sheriff.

Section 34(1) provides:-

"(l) If a claim is made to or in respect of any property attached in execution under process of a court, or in respect of the proceeds or value thereof, the registrar may, upon the application of the Sheriff, as well before or after any action brought against him, issue a summons calling before the court at whose instance the process is issued and the party making the claim"

It is clear from this provision that the summons will issue where the property has been attached not where possession has been taken. It is at the stage of issuance of process to levy execution that an interpleader summons can be issued by the Sheriff.

The Claimant/Respondent did not dispute this. He is contending that there was no execution because the document tendered to prove that possession was taken i.e Exhibit A is spurious.

By virtue of Section 97(2) (c) of the Evidence Act, the only acceptable secondary evidence of a public document is a certified true copy of the document and none other. The objective of Section 97(2) (c) is to ensure the authenticity of the document vis- a-viz the original, and the need for the preservation of public documents.

In Araka V Egbue (2003) 17 NWLR (2003) 17 NWLR (Pt. 848) 1 at 20 - 21, his Lordship Niki Tobi JSC made a profound statement on the rationale for certification.

He said:-
"In this age of sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the context of Section 97 (2) (a) could be tutored and therefore not authentic. Photo tricks could be applied in the process
of copying the original document with the result that the copy, which is secondary evidence, does not completely and totally reflect the original and therefore not a carbon copy of the original."

I have read the cases cited by Applicants' counsel in support of his submission that courts have held that you don't need to tender certified true copy of public documents in all cases.
In Abacha V Fawehinmi (supra) at page 330 - 332 the Supreme Court held that the Detention Order in that case was a public document and the certified true copy of same should have been tendered. In Adejumo V Military Governor Lagos State (supra), the Supreme Court held at page 187 thus:

"...is it proper to object to a paragraph of an affidavit, or a document exhibited in an affidavit before the substantive action is heard or before it is known to what use the document will be put? We think not. In our view, objection should be taken when all the facts are put before the court and not at the preliminary stage..."

From this pronouncement, it is clear that objection can be taken to a document when the use for which the document is tendered is clear. If it is to prove a material point which can decide an application one way. or another, then the exhibit should be certified.

I am persuaded that this is the correct position of the law and I am emboldened in my view by the pronouncement of His Lordship Oguntade JCA (as he then was) in Fawehinmi V Inspector General of Police (2000) 7 NWLR (Pt. 665) 481 at 525

where His Lordship said:-
'The lower court also said that the stage at which the objection to the admissibility of Exhibits GF1, GF2 and GF3 was raised was premature. The lower court would rather
the objection was raised at the hearing of the substantive suit.

......It seems to me that where the exhibit concerned is the primary evidence by which it is sought to prove the truth of
a particular deposition in an affidavit, the documentary exhibit must satisfy the requirements of Section 97 of the Evidence Act. Otherwise it should be ignored or
discountenanced"

I am not aware of any appeal to the Supreme Court against this finding of the Court of Appeal and on the basis of the principles of stare decisis, I am bound by it.

Exhibit A is the only document by which it is sought to prove the possession of the property in dispute after the execution. I have examined the court's record. I am unable to find any copy of Exhibit A in the court's file. Exhibit A was also altered. No explanation was given for the alteration of the date on the document. I agree with claimant counsel- that Exhibit A is spurious. I discountenance it totally.

In the absence of Exhibit W, can this application still succeed? Like I said earlier/1 am empowered to examine the court's record and to make use of documents therein.

On the 25th of April 2006, this court granted claimants application for substituted service of the interpleader summons and other processes on the judgment creditors. . The court ordered that proof of service should include photographs showing the front view of the premises where the processes were pasted.

The court processes were pasted according to the affidavit of service dated 27th June 2006 at No 4 Ogedengbe Street, Agege, Lagos the property in dispute. The photograph attached show the building with an inscription on the wall stating "ID/3506/96 possession taken today 24/1/2006 by court order"

Affidavit of service of a Hearing Notice dated 1st November 2006 also show the inscription on the building. It is clear to me therefore that the Deputy Sheriff has already levied execution and taken possession of the property in dispute. Interpleader summons proceeding is therefore not available to the Claimant at this stage to claim the property. He has to come to court by a writ of summons.
In the final analysis, this application succeeds. This court has no Jurisdiction to continue with this interpleader proceedings. The Interpleader summons is accordingly struck out.

HON. JUSTICE M. O. OBADINA (MRS.)
JUDGE
9/2/2009.

Counsel: A. Lawal for the Claimant/Respondent
Lukman Ogunsetan for the Judgment Creditors/Applicants-

AKINTOLA V. IGP & 3 ORS

2009-02-24T23:31:00.000-08:00

IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
SITTING AT HIGH COURT NO. 7, LAND DIVISION. LAGOS,
TODAY TUESDAY THE 7TH DAY OF OCTOBER, 2008
BEFORE THE HON. JUSTICE B. 0. SHITTA-BEY (MRS.)

SUIT NO. IP/308M/2006

BETWEEN:

OLALEKAN AKINTOLA.............. CLAIMANT/APPIICANT

AND

1. INSP. GENERAL OF POLICE
2. COMM. OF POLICE LAGOS STATE DEFENDANTS/
3. AH. GENERAL OF LAGOS STATE .... RESPONDENTS
4. KOSOFE LOCAL GOVT. COUNCIL

RULING

Following the leave granted by the Hon. Justice Abimbola Ogie of the Federal High Court Lagos on 27th April, 2005 for the Applicant to enforce his Fundamental Human Rights, the Applicant brought a Motion on Notice dated 11th May, 2005 pursuant to Section 46(1) of the 1999 Constitution, order 2 Rule 1 of the Fundamental Rights Enforcement Procedure, Rules 1979 and under the inherent jurisdiction of this court seeking the following reliefs:

(1) A Declaration that the arrest of the Applicant by the Respondents, their agents and or privies, on 24th April, 2004 at New garage, Ifako Gbagada, Lagos State while going about his lawfully business purportedly for contravening the Environmental Sanitation Law 2000 of Lagos State is illegal, unlawful unconstitutional and a flagrant violation of Sections 41 and 35 of the Constitution of the Federal Republic of Nigeria 1999, which variously guarantee the Applicant's right to liberty and freedom of movement.

(2) A declaration that the detention of the Applicant by the Respondents, their agents and or privies on 24th April,2004 at Ifako Gbagada Police Station Gbagada, Lagos State is illegal, unlawful, unconstitutional and a flagrant violation of Sections 41 and 35 of the Constitution of the Federal Republic of Nigeria 1999 and Articles 6 and 12 of the African Charter on Human and people Rights Cap 10 Laws of Nigeria 1990.

(3) A declaration that the acts of the Respondents, their agents and, or privies on 24th April, 2004 at Ifako Gbagada Police Station, Gbagada Lagos State in beating up molesting, assaulting, manhandling and tear-gassing the Applicant are illegal, unlawful, unconstitutional and a flagrant violation of Applicant's right to dignity of the human person severally guaranteed by Section 34 of the Constitution of the Federal Republic of Nigeria 1999 and Article 5 of the African Charter on Human and Peoples Rights Act Cap 10 Laws of the Federation of Nigeria 1990.

(4) A declaration that the Lagos State Environmental Sanitation Law 2000 does not empower the Respondents, their agents and, or privies to harass, molest, intimidate, arrest detain or prevent the Applicant from exercising his constitutional right to move freely on a so called sanitation day or any other day for that matter.

(5) Award of N10 Million as special damages, aggravated, exemplary punitive and general damages to the Applicant for breach of his rights aforesaid and against the Respondents jointly and severally. The application is supported by a five-paragraphed affidavit sworn to by one Peter Oshun, a Legal Practitioner in Applicant's Solicitors Chambers. One exhibit is attached. As required by law, there is a 5 paragraphed Verifying affidavit sworn to by the Applicant.

Despite service of the processes on all the Respondents only the 3rd Respondent filed a Counter-affidavit to the application. The Counter affidavit contained ten paragraphs and was sworn to by Mrs. Olabisi Ogungbesan, an Assistant Director of Public Prosecution with the Lagos State Ministry OF Justice. The Applicant's Counsel, Yusuf Zakari Edego Esq. submitted a written brief of argument dated 28th April, 2008.

Arguing the application. Learned Counsel for the Applicant submitted three issues for determination. The issues are:

(a) Whether the Respondents have power under the Lagos State Environment Sanitation Law 2000 or any other law to arrest and detain the Applicant for moving freely in Nigeria.

(b) Whether the Applicant has suffered a violation of his fundamental rights.

(c) Whether having regard to all the circumstances of this case the Applicant is entitled to damages from the Respondents.

On the first issue, counsel submitted that following the inability of the 1st, 2nd and 4th Respondents to file a Counter-affidavit, the facts deposed to by Applicant in his supporting affidavit must be taken as admitted, and facts admitted, according to him, requires no proof. He cites in support the decisions in NWOSU VS. IMO STATE ENVIRONMENTAL SANITATION LAW (1990) 2 N.W.L.R. PART 135 PAGE 688 and UNIBIZ LTD. VS. CBL (2005) 14 N.W.L.R. PART 944 PAGE 47. He further contended that there is no single provision in the Lagos State Environmental Sanitation Law 2000 that restricts the movement of citizens on the monthly environmental sanitation day for which the Applicant was arrested. He then submitted that assuming, without conceding, that such a provision exists, it will contravene the provisions of Section 41(1) of the 1999 Constitution of the Federal Republic of Nigeria. He cited in this regard the decision of the Court of Appeal in YUSUF VS. OBASAMUO (2005) 18 N.W.L.R PART 956 PAGE 96 AT 115. While conceding that Section 4(1) of the 1999 Constitution empowers the enactment of laws that are reasonably justifiable in a democratic setting in the interest of defence, public safety, public order, public morality or public health and for the protection of the rights and freedom of other person, he submitted that there was no such provision in the Environmental Sanitation Law of Lagos State 2000. He cited the decision of the Court of Appeal in NKPA VS. NKUME (2001) 6 N.W. L.R PART 710 PAGE 534 in support.

On the second issue learned counsel submitted that where the Constitution gives a right and it is proved that the right has been infringed, the onus is on the person alleged to have infringed the right to justify the infringement. He cited the decision in AGBAKOBAVS. S.S.S. (1998) I H.R.L.R.A. 257 to buttress his argument. On the third issue, he submitted, citing, ABIOLAVS. ABACHA (1998) 1 H.R.LR447 that an Applicant seeking redress for the infringnment of his fundamental right, in addition to declaratory and injunctive reliefs, is entitled to an award of damages even where it is not asked for. He therefore urged the court to find in favour of the Applicant,

The brief facts giving rise to this application are that on 24th April, 2004, the Applicant left his home at about 7.30am to board a vehicle around New garage Park, Ifako-Gbagada bound for Ibadan. That day, incidentally, was the last Saturday of the month of April and as admitted by the Applicant, there were other defaulters who were similarly arrested by Policemen and KAI officials and detained at Ifako Gbagada Police Station on that same day. The questions now begging for answers are as formulated in the issues set out for determination by Applicant's counsel. I shall now consider them. The first question is whether the Respondents have power under the Lagos State Environmental Sanitation Law 2000 or any other law to arrest and detain the Applicant for moving freely in Nigeria. Section 38 of the Lagos State Environmental Sanitation Law 2000 provides a follows: "Any person who commits a nuisance or an offence under this law maybe arrested by a Police Officer or an authorized sanitary officer."

'The Commissioner may from time to time make regulations generally for the purpose of carrying into effect the provision of this law". Section 4 of the Police Act Cap 359 Laws of Nigeria 1990 provides:

'The Police shall be employed for the prevention and detention of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged".

Section 4(1) of the 1999 Constitution of the Federal Republic of Nigeria state as follows:

"Nothing in Section 34, 35, 36, 37 and 38 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society:-

(a) In the interest of defence, public safety, public order, public morality or public health."

A careful analysis or appraisal of these above quoted laws would show that even though there is nothing in the Environmental Sanitation laws of Lagos State, 2000 exhibited by the Applicant which spells out restriction on movements of persons on environmental sanitation days, Section 39 empowered the Commissioner to make, from time to time, regulations for the purpose of carrying into effect the provisions of the law. Also looking at the provisions of section 4 (1) of the 1999 Constitution which dearly states that nothing in previous sections of the Constitution which dealt with freedom of movement etc. shall invalidate any taw reasonably justifiable in a democratic society in the interest of public health, and when read in conjunction with section 4 of the Police Act which empowers the Police to enforce all laws regulations with which they are charged, one cannot but say that the Respondents have power under these laws to arrest the Applicant and other persons who violated the regulation made b the Commissioner enjoining every person residing within Lagos State on the last Saturday of every month, to refrain from walking the streets within the hours of 7.a.m to 10.00 a.m., in order to participate in the clean up exercise designed to rid the state of filth. This court is bound to take judicial notice of such regulation as the sheer chaos that would result in holding otherwise is better imagined. This court recalls and takes judicial notice of the fact that until very recently, when the Federal Government revoked a similar regulation governing the whole country for security reasons, restriction was placed on movements of persons throughout the entire Federation between 7a.m and l0a.m for similar reason in the part and the Applicant must have complied with that order in whatever part of the Federation he found himself then, without complaining. See YUSUF VS. OBASAN30 (2003) 16 N.W.L.R. PART 847 PAGE 588 AND S. 74 Evidence Act 1990.

In the light of this, therefore, I hold that the Respondents have power under not only the Lagos State Environment Sanitation law 2000 but other enabling Acts spelt out above to arrest and detain the Applicant for moving on the streets of Lagos during the period of 7a.m. to 10a.m. when, by regulation by the Honourable Commissioner for the Environment, Lagos State movement were to be restricted to enable the members of the public participate in the monthly environment sanitation exercise.

On the second issue of whether the Applicant has suffered a violation of his fundamental rights, I have no difficulty, for the reasons adduced above, to say that the Applicant has not suffered a violation of his fundamental rights, for as held by the Apellaate Court in AGBAKOBA VS. DIRECTOR STATE SECURITY SERVICES (1994) 6 N.W.L.R. PART 351 PAGE 481 a person who is lawfully deprived of his liberty in circumstances permitted by Section 4 (1) of the 1999 Constitution, cannot allege a contravention of the constitutional provisions guaranteeing freedom of movement. On the third issue, the Applicant, having been arrested and detained in circumstances permilted bylaw, cannot be entitled to the award of damages. I so hold.

In conclusion, therefore, I hold that Applicant's Motion on Notice dated 11th May, 2005 lacks merit, and it is accordingly dismissed. No order as to costs.

Parties absent,
Atewe Chucks Esq. for the Applicant
No appearance for the Respondents.

Dated the 7th day of October, 2008.

ADEEABU & ORS V. AG LAGOS STATE

2008-12-11T15:33:00.000-08:00

IN THE HIGH COURT OF LAGOS STATE
HOLDEN AT IKEJA JUDICIAL DIVISION
SITTING AT COURT NO. 27 IKEJA CRIMINAL DIVISION
BEFORE THE HON. JUSTICE M.A DADA (MRS.) – JUDGE
THURSDAY THE 25TH DAY OF SEPTEMBER, 2008

BETWEEN:

1. SAMUEL ADEEABU )
2. TAIWOADENIYI )
3. ADEMOLA ADLABU )
4. KEHINOEAJAYI )
5. YEMI ADEEABU )
6. OPEADETOBA ) APPLICANTS
7. ABRAHAM ADESOOBA )
8. FELIX ILESANMI )
9. MRS. AYODEEE )
10. ADEJUMO SAIIEEU )
11. JOIINSON OJRBIYI )
12. RUKAYAT AHMED )
13.WUNMISERIKI )
14. OLANREWAJU WAL1 )
15. LEKAN AGBOOLA )

AND

ATTORNEY-GENERAL OF LAGOS STATE ....... RESPONDENT

RULING

This is a criminal Appeal against the Judgment of Senior Magistrate Oracle II, Alausa, Ikeja delivered on 12111 February, 2008. The Appellants were charged for the offence of "obstructing an authorized officer (Commander Lekan) in the execution of his duty" contrary to Section 10(2) of the Street Trading And Illegal Market Law, Laws of Lagos State, 2003. They each pleaded not guilty to the one count charge and raised 7 grounds for the Appeal as set out in the Notice of Appeal dated 611' March, 2008 and Written Address filed by their Counsel, Mr. Adesina Ogunlana Esq. who submitted 4 issues for the determination of this court thus:

1. Whether the learned trial Magistrate did give the Appellants fair hearing at the trial of the case and as such conducted proper and valid judicial proceedings?

2. Whether the conviction and sentencing of the Appellants by the learned Magistrate for the offence of "assaulting uniformed officers" is proper, valid and lawful when the charge against the Appellants before the lower court is "obstructing a Uniformed

Officer in the execution of his duties" contrary to Section 10(3) of the Street Trading
And Illegal Market Laws of Lagos Stale, 2003?

3. Whether the evidence adduced by prosecution against the Appellant is sufficient and cogent to sustain their conviction by the court.

4. Whether a court of law can impose upon conviction of Accused person sanctions
different and beyond the penalties prescribed by the law with which the Accused is charged?

He stated that the prosecution was represented by a Counsel while the Accused persons were not represented. That the prosecution called one witness who gave evidence and was not cross-examined. And while the 1st, 2nd, 3rd and 16th Accused gave evidence in respect of what transpired, the other Accused persons did not speak and the learned Magistrate went ahead to convict all the Accused persons for "assaulting Uniformed Officer". Counsel then proceeded to argue the issues as raised by him thus;

On issue 1, he argued grounds 1 and 2 of the Appeal together, namely;

1, MISDIRECTION IN LAW: 'The learned trial Magistrate misdirected herself in law by not asking the Appellants whether or not they would require or like to be represented by Counsel before and during the conduct of trial tliereby denying them fair hearing".

2. MISDIRECTION IN LAW: "The learned trial Magistrate misdirected herself in law by allowing, permitting or directing the Accused persons/Appellants to give evidence in their defence or to remain silent without enquiry into discovering and taking proper judicial action on the silence of those who by implication were recorded in the judgment as having elected not to give evidence in defence (2"'' - 8th, and 10th - 15th Appellants) thereby denying the Appellants so affected of fair hearing".

He submitted that fair hearing which is a constitutional right of every person in determination of his/her rights, obligation as well as charges against him/her entails among other things that the person is entitled to represent himself or be represented by a Legal Practitioner. He referred to Section 36(6)(b) and (c) of the 1999 Constitution and quoted Section 287 of the Criminal Procedure Act, Laws of Lagos State 2003 (sic!) and argued that the learned trial Magistrate made no enquiry from the Appellants whether they needed the service of a Counsel when under the law she ought to have done that. He therefore submitted that she did not afford
the Appellants fair hearing and the entire trial should be held as invalid and a nullity.

On issue 2, he sought to argue grounds 3 and 4 of the Notice of Appeal thus;
MISDIRECTION 1

"The learned trial Magistrate misdirected herself law when she convicted and sentenced the Appellants without any reference to the charge".

MISDIRECTION 2

"The learned trial Magistrate misdirected herself in law by holding that the Appellants committed assault on uniformed officers and thereafter sentenced them when the Appellants were not charged with the offence". He submitted that it is trite that a court of law or tribunal can only convict and sentence an Accused person on trial before it only on the charges preferred against the Accused person. That the only acceptable exception to this rule is a situation where the evidence against the Accused can only support conviction for a lesser offence, and in such cases, the lesser offence must relate and pertain to the higher offence for which the Accused is charged and same (the lower offence) must be recognized in the law creating the higher offence. He cited OKON VS. STATE, 1984, 7 S.C. and submitted that
there is no offence known or recognized as "assaulting a Uniformed Officer" in the Street Trading And Illegal Market Law, 2003. And that at no time in the trial was the charge ever
amended to reflect that the Appellants were facing charges of assault. He contended that the word "assault" differs in meaning and legal consequence from the word "obstruct" even though an act of assault can lead to obstruction of the performance of some other things. Counsel referred to the definition of "assault" at page 114 of The Black's Law Dictionary and of "obstruct" at page 1077 and concluded that "assault and obstruction" are not synonymous.

In arguing issue 3 vis-a-vis grounds 5 and 8 of the Notice of Appeal he restated his earlier argument that the court below convicted and sentenced the Appellants on a charge (assault) different from the one before the court (obstruction of an authorized officer in the discharge of his duty). That the evidence of the only witness for the Prosecution is that lie came to the premises of the 1s1 Appellant to clear illegal structure and give enlightenment campaigns on environmental sanitation and as he and his team were doing their work, they were attacked by the Appellants with the use of charms, matchets, broken bottles and fist-blows and in the process some of his officers including women were beaten up and matcheted and their official uniforms torn. Counsel observed the following;

(a) The Appellant did not confess to or admit the allegations against them in court
that they assaulted PW1 or any other KAI officials.
b) The trial took place on the very day of the alleged commission of the offence
by the Appellants
c) The prosecution did not present any weapons used by the Appellants in tlie attack or any torn uniforms or any evidence of physical injuries on the staff of KAI, and the Magistrate yet held that the prosecution proved their case against the Appellants "beyond reasonable doubt" convicted and sentenced the Appellants, even where there was uncontradicted evidence from some of the Accused person (1st, 2" ^ and 16' Accused) before the court that it was the PW1 and some KAI officials who were, according to him, the aggressors and attackers in the case. Per page 3 of the judgment.

He referred to STATE VS. ONYEUKWU, 2004, FWLR, pt. 221, 1388 at 1425 on the Supreme Court's interpretation of "proof beyond reasonable doubt". He submitted that as per the quality of the evidence led in court against the Appellants in the lower court, the

prosecution ought not to have gained their conviction. But that in the event that the court holds that the evidence presented by the prosecution against the appellant's weighty and sufficient to prove a case of assault against the Appellants the evidence cannot be relevant and cogent to ground the charge of "obstructing an authorized officer in the execution of his duty" before the court. Further that mere obstruction of an authorized person is not enough to render a person guilty of an offence under this law, the obstruction, he stated must be against an authorized person in the execution of his duty under the Street 'trading And Illegal Market Law of Lagos State. That by Sections 1 - 8 of the law, tile proper duty of an authorized officer is to stop or prevent continuation of Street Trading or Maintenance of illegal Markets in Lagos State. But
that the evidence of PWl, before the court was that he went to the premises of the 1st Appellant and his officials to clear illegal structure and give enlightenment campaign and were actually doing that when they were attacked. Therefore that even if this evidence was believed by the court, it was proof that PW1 and his men were not executing any duty under the Street Trading and Illegal Markets Law when they were allegedly attacked by the Appellants and as such the Appellants could not have been culpable of the offence for which they were charged with even if the Magistrate had sought to convict them on that charge. Therefore that the evidence adduced against the Appellants was neither cogent, weighty, sufficient or even relevant to warrant their conviction by the lower court

On the final issue, which he argued vis-a-vis grounds 6 and 7 of the Notice of Appeal, he submitted that it is settled !aw that in the exercise of his powers, a court can only act properly when such powers are exercise judicially and judiciously within the jurisdiction of the powers granted it by statute. Consequently, that a Judge or Magistrate can only convict an Accused person according to law and where he exercises his power at any stage of the trial on the determination of a case outside the limit of the power conferred on it by law, the position of the law is that such exercise or decision of the court is a nullity. He relied on NNONVE VS. ENVICUIE, 2005, AFWLR, pt. 253, p. 604 at 607 and further argued that in the instant case,
the Appellants were charged as having contradicted Section 10(3) of the Street Trading And Illegal Markets Law of Lagos State which provides a fine of N10,000 or 6 months imprisonment upon conviction. But that the Magistrate sentenced the Appellants as follows:

a) The 1st, 3rd and 9'11 were sentenced of pay a fine of N50,000.00 each or serve prison term of 6 months with hard labour.
b) Sentenced the 2nd , 4th - 8th and 10th - 15th to pay a fine ofN20.000.00 each.
Therefore that not only is the sentence (sic) ordered by the Magistrate on the Appellant's unequal, the two types of sentences for the same offence exceeded conviction limit prescribed by the law.

He finally submitted that even if the court should hold that the conviction of the Appellants was proper and valid, their sentencing should be held invalid and a nullity. He prayed for an order;

1. Allowing the appeal, quashing and setting aside the conviction and sentence of
the lower court on the Appellants delivered on 12th February, 2008.

2. For the Respondent to refund to the Appellants (.he sum of N390,000.00 paid as fine vide treasury receipt, Lagos State Government number 1781809 (Treasury I3ook No. 6A) and Environmental Enforcement Unit Administration Charge Receipt Number 0000367 by the Appellants as ordered by the lower court in her judgment.
3. And further order or oilier orders as the court may deem fit to make in die circumstance.
The Respondent's Reply dated 17"' Ainc, 2008 was filed by Mrs. O.A. Olugasa, Senior State
Counsel. She submitted 3 issues for determination thus:

1. Whether the Appellants were given fair hearing at their trial before the lower court;
2. Whether the conviction and sentencing of the Appellants by the lower court was
proper and valid, and
3. Whether (he Prosecution proved it's case against the Appellants at the lower court.

On issue l, she admitted that fair hearing is the constitutional right of every citizen of this nation quoting Section 36(6)(6) and (11) of the 1999 Constitution and referring to Section 4(3) of the Special Offences Court, Law 2003. She submitted that the Appellants were at the trial made to understand the charge against them and none of them objected to the charge or staled that he did not understand it. And furthermore voluntarily elected summary trial thereby submitting themselves to the jurisdiction of the court. That it is trite that where a party wishes to complain of an irregularity in proceedings, such complaint will only be validly raised at the earliest opportunity and referred to GWONTO VS. THE STATE. 1983, All N.R.(?) p. 109. She argued that the Appellants had ample occasions to insist on representation but they opted to represent themselves which did not amount to a miscarriage of justice. And that Section 36(11) of the 1999 Constitution states that where an Accused decides not to give evidence as was the case in respect of the 4th – 16th Appellants, such a person shall not be compelled to give evidence which she stated is in line with Section 287(a) (iii) of the Criminal Procedure Law cited in the Appellants' brief. She relied on ADEKUNLE VS. THE STATE, 2006, 6 S.C., p. 218 and therefore submitted that the Appellants were given fair hearing and the trial at the lower court should be upheld as valid.
TO BE CONTINUED…

On issue2, she submitted the Magistrate did in fact convict the Appellants with all due reference to the charges against them and merely stated that the available evidence established that assault, which according to her is one of the ingredients of the offence with which the Appellants were charged i.e. "obstructing an authorized officer in the exercise of his duty". That the reference to assault can indeed be likened to perhaps a reference to taking a piece of property intentionally in a charge of stealing for instance. Therefore that the Appellants were convicted on the charge filed against them and none other. In direct response to issue 4, of the Appellants' brief, she stated that the Appellants were rightly convicted and sentenced to 6 months in prison with an option of fine and that assuming but not conceding that the sentence of fine imposed was not in line with the fine statutorily provided, this will not suffice to warrant overturning the decision of the lower court.

On her final issue, she admitted that at the trial, the Prosecution called one witness who was cross-examined by the only Appellant who so elected and also 4 of the Appellants gave evidence in their defence which evidence was, according to her evaluated by the learned Magistrate upon which she based her judgment and on which the Appellants were found guilty. On her submission that the prosecution need not call a host of witnesses, she relied on OGUON1 VS. IBOKl, 2006, 17 NWLR, pt. 1009, p.542, ratio 11. She finally submitted that the evidence of the prosecution witness in (his case was not incredible or doubtful, hence the decision of the lower court to rely on it. And that PW1 was in the exercise of his lawful duties which include enforcing a sanitary environment in his jurisdiction and teaching the members of the public how to keep their environment clean. She urged the court to dismiss (lie Appeal in its entirety and uphold the conviction and sentence by the lower court.

The Appellants' Reply on points of law is dated 24th June, 2008. On the first issue raised by the Respondent that the Appellants had "ample occasions" to insist on legal representations by Counsel and cannot be compelled to give evidence, he submitted that the issue of compelling a witness to give evidence is not the intendment of Section 287 of the Criminal Procedure act (?) Laws of Lagos State, 2003 but that the duty of the court lo an Accused unrepresented by Counsel is to explain the options open to him for his defence, which he alleged the Magistrate failed to do and which affected the course of trial. Further that a wrong reliance and interpretation has been put by the prosecution in GWANTO VS. VS. STATE Supra. He contended that it is not the law that where irregularity was not complained of in a trial at the earliest opportunity such complaint cannot be made again otherwise it will mean that where such irregularity even where it occasions miscarriage of injustice it will be allowed to prevail. And wondered if it can be said that a constitutional issue of right to fair hearing of Accused persons is a mere irregularity? This lie answered in the negative. And that where an Accused is unrepresented by Counsel at trial, the court must present his defence options to him and not to allow him to do as lie likes at trial without being formally advised by the court as to his rights in the circumstance under the law.

On issue 2, where the Respondent submitted that "assault" is an ingredient of "obstructing an authorized Officer in the execution of his duty". Counsel contended that this is wrong and highly speculative since, according to him, obstruction in the performance of a duty does not necessarily have to take the form of an assault. He noted that the Respondent did not support their claim either by case law or by statute nor did they state what other ingredients there are.

On issue 3, he contended that (he mere fact that judgment was given on evaluated evidence does not make that Judgment necessarily right or correct by the sheer reasons of evaluation. That judgment only becomes correct, valid and unimpeachable when the evaluation is judicious and in consonance with the requirement of proof "beyond reasonable doubt" in criminal matters. Finally that the Appellants' contention is that the learned trial Magistrate did not properly evaluate the evidence before her and not that she did not evaluate the evidence at all. He urged the court to reject the Respondent's arguments as untenable and an effort to defend the indefensible.

Well, I think the first issue submitted by the Appellants for consideration summarises the issues for the court's consideration, namely, whether the learned Magistrate did give the Appellants fair hearing at the trial of the case and as such conducted proper and valid judicial proceedings.

I shall endeavour to refrain from any vain repetition except where such is absolutely necessary, What the Appellants were charged for before the Magistrate and what they were convicted for need no repetition. It is on record that a team of KAl Officers visited the premises of the 1st Defendant/Appellant whereupon some were allegedly slapped and three women machetted, but only PW1, the team leader testified for the prosecution. His testimony was that, "I was fully dressed with the Ministry of Environment vehicle I went there with.” This cannot be assumed to extend to the others who were allegedly slapped and machetted and who did not deem it fit to testify in court themselves. This is not enough to ground conviction of assault on its own without the evidence of those who were directly assaulted even if it is assumed that the Magistrate could properly convict for assault if proved. However the evidence of PWI is in my view insufficient to prove assault since he did not testify that he was in fact assaulted by any of the Appellants. It is a general principle of criminal law that in a joint trial of two or more Accused persons for the same offence, a discharge of any of them in this way need not involve the discharge of the others as the evidence may show that each Accused person or some of them performed acts independently of what others did in furtherance of the commission of the crime. Sec ADEYOYR VS. POLICE, l95y, WKNLR, 100. Therefore there was no evidence before the learned Magistrate upon which lie could validly have convicted all (lie Appellants for assault without being specific. The conviction of the
Appellants for assault is consequently erroneous on this ground alone.

Moreover each of the Appellants pleaded not guilty to the one count charge preferred against them. By virtue of Section 189 of the Evidence Act, it can be surmised that in a joint trial, a witness called by the prosecution should be cross-examined by each of the Accused persons. It is on record that it was only the 1st Defendant/Appellant who cross-examined PW1 and his testimony was that he, PW1, was in the premises when "We were falsely imprisoned" and not more. There was nothing about assault for which all the Appellants were convicted. Each of the Appellants should have been called one after another to cross-examine PW1 and their respective responses should have been recorded.

The conduct of the defence also leaves much to be desired. The record of the Magistrate states thus: "All other Accused elect to state their story. Those who elect to speak, all be sworn on oath". However there is no record that "all other Accused" who were to "state their story" were given the opportunity as it was only the 1st, 2nd, 3rd and 16th Defendants that allegedly 'spoke'. In other words, only 4 of the Defendants were given the opportunity to "speak" and
so "defend" so to say. They were not cross-examined and there was nothing incriminating or confessional in the evidence of any of them, consequent upon which the learned Magistrate discharged the 16th Defendant forthwith. The 1st Defendant/Appellant merely said, "They wanted to enter the bakery and I told my daughter not to allow them as they had come before on 8th February 2008 when I gave those refreshments and bread . . .". We are not given the privilege of knowing whether the daughter actually locked the gate or what exactly she did as he was not cross-examined at all. The testimony of the 2nd Defendant was only thus, "I saw KAI Officers beating my uncle and I went to interfere hence I was brought here". He also was not cross-examined as to what he meant by "interfere" and especially on the evidence that KAI Officers were beating his uncle. The 3rd Defendant on his part stated inter alia, "It is true that the gate was locked but we did so that the, Police can come and interfere". lie also was not cross-examined at all. One then wonders how the learned Magistrate came to the conclusion that the offence of assault was proved and upon which conviction and sentences were based.
The learned Magistrate should have discharged all and not just the I6"' Defendant at the close of the prosecution's case. Section 244(1) of the Administration of Criminal Justice Law, 2007 states thus: At the close of the evidence in support of the charge, if it appears to the court that a prema facie case is made out against the Defendant sufficiently to require him to make a defence the court shall call upon him for his defence and - a) If the Defendant is not represented by a legal practitioner, the court shall inform him that he has three alternatives open to him, namely -
(i) lie shall make a statement, without being sworn from the place where he then
is, in which case he will not be liable to cross-examination: or
(ii) lie shall give evidence in the witness box, after being sworn as a witness: in which case lie will be liable to cross-examination; or
(iii) He need say nothing at all, if he so wishes, and in addition the court shall ask him if he lias any witnesses to examine or oilier evidence to adduce in his defence and the court shall then hear the Defendant and his witnesses and other evidence if any; . . . "The equivalent provision is Section 287 of the Criminal Procedure Act, Laws of the Federation of Nigeria 2004. However Section 288 of the Criminal Procedure Act Supra provides that failure to comply with the requirement in Section 287 shall not vitiate the trial PROVIDED the court called upon the Defendant for his defence and asked him if he had any witnesses and heard him and his witnesses.

The Supreme Court in JEZE VS. THE STATE, 1964, 1 All NLK, 416 held that failure of the trial court to comply with the obligations imposed by Section 287 although an irregularity, docs not necessarily render a trial null and void. The effect of such failure must depend on the circumstances of each case and the court is at liberty to allow an appeal based on the complaint of such a failure and order an acquittal or a retrial or to dismiss it if there was no miscarriage of justice. In this case, as I have already slated above, the trial was a travesty of justice and is merely compounded by the failure of the Magistrate to observe the obligation imposed by law under Section 287 of the Criminal Procedure Act. In KAJOLA VS. POLICE, 1973, 1 All NLR, 31, conviction was quashed for non-observance of the obligation.

The exercise of the power to order a retrial presupposes that there has been a valid trial. The court will therefore refuse to make an order for retrial in an appeal against conviction following a trial considered a nullity. The court would also allow an appeal and set the conviction aside
if it appears to the court that the conviction should be set aside on the ground that it was having regard to the evidence adduced, unreasonable or that the conviction should be set aside on the ground of a wrong decision on any question of law or on (lie ground that (here was a
substantial miscarriage of justice.

The Supreme Court in S1IANDE VS. STATE, 2005, VOL. 12, MJSC, 152 at pages 173 -174 paragraphs G - B held inter alia that where there is doubt in the mind of the court either as to the procedure adopted or failure to address on very important latent issues that assail or circumscribe the case, the court should acquit and discharge. I lis lordship, Pats-Acholonu J.S.C. said, "The appraisal of the Facts of this case at the trial stage and the decision of the immediate court below, I must confess leave very much to be desired. It is difficult following the sequence of events that took place whether there was indeed proof beyond all reasonable doubt. When an accused is being tried for any case whatsoever, because of the principle of law ingrained in our constitution that he or she shall be presumed innocent, it behoves of the court to subject every item of facts raised for or against him to merciless scrutiny. Nothing should be taken for granted as the liberty of the subject is at stake. Where there is a doubt in the mind of the court either as to the procedure adopted or failure to address on very important latentissues that assail or circumscribed the case, the court should acquit and discharge".

I therefore allow this appeal in it's entirety and hereby set the judgment of the lower court aside. Consequently, the conviction and sentences arc set aside. The Appellants are discharged and acquitted.

It is hereby also ordered that the slate do refund to (lie Appellants the sum of N390,000,00 paid as fine vide Treasury Receipt No. 1781809 and Charge Receipt No. 0000367 against the order of the lower court.

I so rule.

LATEEF V. NBA

2008-11-29T14:07:00.000-08:00

IN THE HIGH COURT OF LAGOS STATE
IN THE IKE3A JUDICIAL DIVISION (GEN & CIVIL)
TODAY WEDNESDAY THE 8TH DAY OF OCTOBER 2008
BEFORE THE HON. JUSTICE G. M. ONYEABO - JUDGE

SUIT NO: ID/458M/2007
BETWEEN:

MOROOF AYINDE LATEEF CLAIMANT
AND
NIG. BAR ASSOCIATION DEFENDANT

RULING

I had reason lo raise the issue of jurisdiction on 16/9/08 when the Ruling ought to have been read. The position is that the-Court, though can raise such an issue suo muto is enjoined to give counsel the opportunity to address it before making a pronouncement one way or the other.

The Applicant obtained an adjournment for the purpose and took liberty to file a Written Brief dated in that regard. The Written Address dated 22 September 2008 was filed along with a Further Affidavit deposed to by the Applicant himself. He adopted the said submission at the resumed hearing on 7 October 2008.

Learned Counsel Mr. A. A, Adewale appeared on behalf of the Respondent and informed the Court he had filed certain Processes which had not been served. As staled on the occasion, the said Process could not be countenanced by the Court at that time and counsel was requested to address the Court on the issue of jurisdiction. Mr. Adewale submitted that the Respondent was not juristic and that the applicant could not file in his firm name thus making the Processes incompetent. He also submitted that the subject matter of the originating summons was non justiciable and urged that same be dismissed.

The Applicant replied and submitted that Learned Counsel Mr. Adewale had filed no counter affidavit and could therefore not be heard in respect of the originating process.

The issue of jurisdiction is fundamental and must first be resolved when raised -

- AFRO CONTINENTAL (NIGERIA) LTD & ANOR V CO-OPERATIVE ASSOCIATION OF PROFESSIONAL INC (2003) 5 NWLR (PT. 813) 303

- F.H.A. v JOHN SHOY INT'L LTD (2005) 1 NWLR (PT. 908) 637

Jurisdiction has 3 constituents - the Court must be properly constituted with respect to the number and qualifications) of the members, the subject matter of the suit must be one within the competence of that Court,, and the suit must be properly constituted in compliance with due process -

- MADUKOLU v NKEMDILIM (1962) (SCNLR 341

Where one of these 3 components fail, the jurisdiction of the Court will be compromised. In respect of the 3rd component the constituent of same is that there must be proper parties before the Court. In oilier words only juristic persons may be parties to a suit. These are natural persons, or persons who are so clothed with juristic garbs by statute e.g. bodies corporate-

- ATAGUBA 81 CO. V GURA (NIG) LTD (2005) 8 NWLR (PT. 927) 429

In the instant case, the Respondent is named as Nigerian Bar Association (Ikeja Branch). Question is whether the said NBA (Ikeja Branch) is a legal entity or personality able to sue or be sued as named. The issue came up squarely in the case of GANI FAWEHINMI v NIGERIAN BAR ASSOCIATION & ORS (No. 2) (1989) 2 NWLR (PT.105)

The Supreme Court, while listing jural units having legal personality held that the Nigerian Bar Association does not owe its creation to any statute, neither is it incorporated by virtue of any statute and therefore it is not cooperation. It was held that the NBA was not a suable legal entity and therefore could not be sued eo nominee.

In the instant case, the Respondent as listed is the even the Ikeja Branch of the association. There is no doubt that the Respondent as named is not clothed with legal personality to be suable as has been done here. It follows therefore that the suit is not properly constituted there being no Respondent before the Court. The jurisdiction of the court is therefore clearly eroded and anything done by it will amount to a nullity. Accordingly, this suit is hereby dismissed.

However, as trial Court I am enjoined to consider all the matters/issue before the court so that, the suit on appeal should be. The Comprehensive issues may be before the superior curt

I .shall now consider the originating process itself in case I am wrong on the issue of jurisdiction so the court would have the comprehensive full issues.

The applicant by his originating summons dated 23July 2007 seeks the following;-

1 Declaration that the applicant diploma certificates are professional and no law in Nigeria prohibiting the diplomas and preclude the applicant from claiming title of his trained profession as commercial law practitioner protected by section 15 (2) and 17 (3) a of constitution (supra)

2 Declaration that the applicant is a commercial law practitioner by virtue of his diploma certificates and have legitimate and constitutional rights to claim and practice same for means of his livelihood guaranteed by S 15(2), 16 (l)d, 17 (1),(3) a & 39 of 1999 constitution of the federal republic of Nigeria.

3 Declaration that the applicant have (sic) legitimate and constitutional rights to issue and file any legal instrument for self and/or client(s)with representation without wig and gown as provided under Order 13 R 34 of the high court of Lagos state civil procedure Rules 2004 and section 16 (1) d, (2) c, 17 (l),(,3)a & 36 (I) of the-.1999 constitution of the federal republic of Nigeria. .

4 Declaration that the economy in Judicial systems in Nigeria is not operates in such a manner as to permit the concentration of wealth, means of production, exchange and dissemination of information in the hands of the Respondents and its entire members only which violate Sections 16(10d, (20c, 17(10, (2) a, (30 a and 36 (1) of 1999 Constitution of Federal Republic of Nigeria and Applicant is equally entitled.

5 AN ORDER to restrain, and restraining the Respondent and any of its members, agent(s), servant(s), privies or whosoever name may be called from further arresting intimidating, harassing, visiting communicating, detaining or do anything whatsoever with Applicant in practicing his own profession under his registered Business Name at the determination of this application."

There was filed in support an affidavit of 23 paragraphs deposed to by the applicant himself who also filed a Written Brief in support as required certain documents were attached including a certificate of Diploma in Business and Industrial Law ostensibly issued by the University of Lagos, an Advanced Diploma in Commercial Law and practice of same university of Lagos, copy of Certificate of Registration of business name issued ostensibly by the Corporate Affairs Commission (Exhibit MA 002, Charge Sheet in F/36/2003 as Exhibit MA 003, Charge Sheet C/45/2002 as Exhibit MA 004, Record of Proceedings in F/36/2003 of 5 March 2004 as Exhibit MA 005 and Writ of Summons and Statement of Claim in ID/16/2002 as Exhibit MA 006, and an Application in Suit ID/557 M/2006 as Exhibit MA 007.

Apart from an Affidavit of Service shown to have been filed wherein the Vice Chairman of the NBA (Ikeja Branch) was said to have been served, (See also endorsed copy of Process attached) this Court also made an Order for the attendance of the President of the NBA, Ikcja Branch. I do not think there is a 'president' for the NBA Ikeja Branch but the purport of the order is clear which is for leadership of the Ikeja branch of the association to participate as appropriate having been sued. Hearing Notices were also so ordered . On the adjourned date, the 1st vice Chairman, D. A. Adetomobi of counsel did appear for the defendants and sought a short adjournment to take certain steps but learned counsel Mr. Adetomobi never again appeared in the matter, neither did any other counsel attend on behalf of the defendant. What is more, ho Process was filed on behalf of the defendant.

The Applicant conducted his case himself and adopted his written address as filed. He' also sought to withdraw paragraph 22 of his Affidavit in support and apologized for same. Same is hereby struck out.

This suit is based on the allegation of intimidation and harassment caused the applicant by the respondent. It is also alleged that he (applicant) had been maliciously prosecuted in respect of his claims as a commercial law practitioner" -paragraphs 7 -10 of the Affidavit in Support.

The applicant avers also that lie had a right to so practice as a "Chartered Administrator and Commercial Law Practitioner by virtue of the registration of his business name with the Corporate Affairs Commission and the Diploma Certificates attached - see Exhibits MA. 001 (a), MA 001(b), and M A 002 respectively and paragraphs 3, 4, 5-6 of the Affidavit in Support.

Applicant contends that he has a right to practice as specified once he did not do so in the barristers' wig and gown customarily worn by legal practitioners in this jurisdiction x and particularly since the Judiciary was funded by tax payers' money and not by the NBA Ikeja Branch and its members - see paragraph 17 of Affidavit in Support. Applicant relies on several sections of the Constitution of the Federal Republic of Nigeria and in particular Sections 17 and 39 of same which is under Chapter II, It
states inter alia
"17.
(1) The state social order is founded on ideals of Freedom, Equality and Justice.
(2) In furtherance of the social order
(a) every citizen shall have equality of rights, obligations and opportunities before the law; -------
(e) dependence, impartiality and integrity of Courts of Law, and easy accessibility thereto shall secured and maintained."

Section 39 of the 1999 Constitution deals with the right to freedom of expression and the press and same shall be reproduced as necessary hereafter.

The crucial issue in this application is whether the applicant can rightly hold himself out as a practitioner of commercial law. Or whether there is any such profession known to the Nigerian law, - law being the mechanism by which different professions are identified and regulated. Thus, in the case of accountants, a person may not be able to practice as a chartered accountant unless he becomes or obtains either the ACCA or its recognized equivalent. There being an enabling law to that effect.

It will not matter whether he has obtained a degree from a recognized institution like a university.

In respect of the legal practice, the legal Practitioners Act 1962 as amended section 2 of same provides:
" (1) Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the role."

Section 7(1) Subject to the provisions of this section, a person shall be entitled to have his name enrolled if and only if

(a) he has been called to the Bar by the Benchers; and
(b) he produces a certificate of this call to the Bar to the Registrar

Section 4 (!) Subject to the provisions of this section .a person shall be entitled to be called to the Bar if -

(a) he is a citizen of Nigeria; and
(b) He produces a qualifying certificate to the Benchers; and
(c) He satisfies the Benchers that he is of good character.

(4) The Benchers shall issue to every person called to the Bar pursuant to subsections (1) and (2) of this section a certificate of call to the Bar which shall be in such form as the Benchers may determine" (emphasis supplied).

- also Section 24 of the Act.

The combined effect of these of these provisions is that the Benchers are responsible for admitting a person to the Nigerian Bar. And before he is so admitted, he must present to the Benchers a qualifying certificate, which he must present also to the Registrar of the Supreme Court who then enters this name on the roll Section 2(1) supra.

In the instant case, what the applicant needs to establish is that he has satisfied these requirements and has his name on the roll, the pre-requisite for which is a "certificate of call to the Bar" - Sec Section 4(4) supra.

None of the exhibits filed along with this summons is a certificate issued by the Benchers or council of Legal Education. There is not one piece of evidence suggesting that the applicant made an attempt to undergo the requisite training undertaken by the Council of Legal Education at the law school to qualify for enrollment. Instead, he relies on his Diplomas from the University of Lagos and registration at the Corporate Affairs Commission. The latter has nothing whatsoever to do with authorizing a person to practice as a legal practitioner. And the provisions cited above shown clearly that whilst many people may read law at any University of their choice at home or abroad, only those admitted to the Bar by the Benchers may practice that profession and be correctly referred to as legal practitioners a registration of a business name at the Corporate Affairs Commission not withstanding. I hold that the applicant cannot be said to be a person entitled to practice as a legal practitioner not having been called to the Bar nor enrolled as prescribed.

Applicant has argued that: he is entitled to practice as a Commercial Law Practitioner and Chartered Administrator as long as he does not dorn the wig and gown,

This is quite obviously a misconception. A citizen cannot of his own privately coin or birth a profession of due process. As stated earlier, an enabling enactment is essential or mandatory to so establish and regulate entrance and practice of a profession for obvious reasons one of which is to prevent the activities of charlatans and impostors, This is for the good of the society. Thus, lo lay claim to a right to practice this profession the applicant has a duly to refer to the law/enactment establishing the profession of Chartered Administrators and (2) Commercial Law Practitioner see for such a statute will provide a definition of those who may be admitted to it and their recognized qualifications0. He has the burden of proof. This has not been so in the instant case and there is a total failure in that regard. I so hold.

It remains lo say that a person who breaches or does not comply with the provisions of the enabling law in respect of any profession may make himself liable for sanctions. Thus, by Section 22 of the Legal Practice Act certain action will attract sanctions and are called offences namely Section 22 (10 Subject to the provisions of the section, if any person other than a legal practitioner

(a) practices, or holds, himself out to practice, as a legal practitioner; or
(b) -----
(c) Willfully takes or uses any name, able, addition or description falsely implying or otherwise pretends that he is a legal practitioner or is 'qualified or recognized by law to act as a legal practitioner; or
(d) —-
he is guilty of an offence, and liable -------
(emphasis supplied)

By virtue of this provision, members of the Bar ought ordinarily to be vigilant to ensure compliance with the Act, and where necessary enforce its provisions.

Having held earlier that the applicant has either proved that he is qualified under the Legal Practice 1962, took practice Law as he postulates, nor has he demonstrated to the Court that there is a profession known as the chartered Administrators and Commercial Law practitioner, this application lacks merit and fails in its entirety, same is accordingly dismissed.

FALAYI V. AJAO & ORS

2008-10-29T14:51:00.000-07:00

SQUIB CASE LAW

IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT HIGH COURT NO 12,
BEFORE HON.JUSTICE A.O.KAYODE-OGUNMEKAN (MRS) - JUDGE
ON THE 2ND DAY OF NOVEMBER, 2007

SUITNO-M/536/05

BETWEEN:

RUFUS FALAYI ...................................................... APPLICANT

AND

1. MR.ISREAL AJAO (AJ.G.ZONE 2, ONIKAN) )
2. MR.Y.BALOGUN (Assistant Comm. of Police )
in charge of the S.C.I.D Panti). )
3. MR.LAWRENCE AJIDAHUN ) RESPONDENTS
(2 i/c Investigations Zone 2 & I.P.O) )
4. COMMISSIONER OF POLICE, LAGOS STATE )
5. STALLION NIGERIA LTD. )

RULING
This is an application for the enforcement of the Fundamental Right of the Applicant which is brought pursuant to Order 1 Rules 2(1), (2), (3), (4),(5) & (6) of the Fundamental Rights enforcement Procedure) Rules 1979, Sections 35,37,41,43,44,46 of the 1999 Constitution of the Federal Republic of Nigeria, Articles 2,3.4,5,6,7,12,14,17,19 of the Africa Charter of Human & Peoples Rights and under the inherent jurisdiction of the Court. The Applicant is seeking for the following reliefs:-

1. An Order restraining the 1st to 4th Respondents from proceeding with the threat to re-arrest
and detain the Applicant and from confiscating his properties or resort to any extra judicial/extra legal means/self help apart from the charge No. D/72/2005 - COP V RUFUS FALAYI.

2. A declaration that the arrest, detention, humiliation, harassment and intimidation of the Applicant from 19th July to 3rd August 2005 at the State C.I.D, Panti by the agents of 1st – 4th Respondents at the instigation of the 5' Respondent is unlawful, illegal, unconstitutional constituted an infringement on the Applicant's fundamental rights.

3. A declaration that the arrest, detention, humilitation, harassment and initimidation of the Applicant on 23rd day of September 2005 at the Zone 2 Police Headquarters Onikan, by the agents of 1st -4"1 Respondents at the instigation of the 5111 Respondents, while a criminal case in respect of same offence, instituted against the Applicant by the said Respondents in charge No D/72/2005 is pending at the Chief Magistrate's Court, Yaba, is unlawful, illegal, unconstitutional and amounts to violation of the rights of the Applicants as enshrined in the Constitution.

4. A declaration that the seizure on the 18111 day of July 2005 by the 5th Respondent with the help of the 1st – 4th Respondents, of the Applicant's mobile phone handset and bag containing his
mobile phone hansct and his lecture notes and text hooks relating to his Institute of Chartered
Secretaries and Administrators' examinations, which prevented him from taking the examination
is unlawful ,illegal, unconstitutional and constituted an infringement on the fundamental rights
of the Applicant.

5. A declaration that the removal and carting away to Zone 2 Police Headquarters Onikan, on the
23rd day of September 2005 of the Applicant's valuables like split and window unit air conditioners, generator set by the agents of the 1s1 -41 Respondents on the instigation of and with the aid of the 5th Respondent's staff constituted infringement of the fundamental right of the
Applicant to own properties, privacy, human dignity etc, guaranteed by the 1999 Constitution and
the African Charter on Human & People’s Right.

6. An order directing the 1s1 to 4th Respondents to release to the Applicant forthwith, all his properties and belongings carted away by the agents of the 1st -4th Respondents led by the 3rd Respondent in company of the Staff of the 5111 Respondent led by one Sikiru Olumegbon on the
23rd day of September, 2005 and the handset plus the bag belonging to the Applicant seized by the 5th Respondent and are still illegally being held on to by the 5th Respondent.

7. An order that the Respondents jointly and severally pay the Applicant the sum of N 15 Million being compensation and/or damages for the unlawful arrest, detention, humiliation , dehumanization /constitutional rights of the Applicant.
AND for such further or other orders as the Honourable Court may deem fit to make in the circumstances of this case.
AND TAKE FURTHER NOTICE that at the hearing of this Motion the Applicant will rely on the Statement as well as the Verifying Affidavit attached to the Motion Ex-parte for leave.
The 1st – 4th Respondents never filed any Counter-Affidavit to this application. The 5th Respondent filed a Counter-Affidavit of 25 paragraphs which was sworn to by one Sikiru Olumebon the Head of Administration,
The Applicant filed a reply dated the 30th day of June 2006 to the Counter-Affidavit of the 5th Respondent.
Mr. D.A. Ajetomobi appeared for the Applicant, while S.A. Imosan Esq. appeared for the 5th Respondent.

The 1st -4th Respondent was not represented at the hearing of this application.

In moving this application, Learned Counsel to the Applicant relied on the Written Address filed wherein he formulated 5 issues for determination ;-

1. Whether 1st -4th Respondent have powers to detain the Applicant for two weeks?
2. Whether the seizure of the Applicant's properties by the 5th Respondent is justifiable at all?
3. Whether the in incessant harassment of the Applicant by the 5111 Respondent using the agents of the 1st -4th Respondents is lawful and constitutional?
4. Whether the Respondents have power under the law of Nigeria to subvert judicial or resort to
extra legal or extra judicial means while the case is pending before a Court of competent jurisdiction ?
5. Whether on the whole, the actions of the Respondents constitute infrignments or encroachments on the fundamental rights of the Applicant?

Counsel submitted that the l51^"' Respondents have no power to detain the Applicant for two weeks. He referred the Court to Chapter 4 of the 1999 Constitution and Article of the African Charters in support of his submission.
He slated that the detention of the applicants unlawful, illegal and unconstitutional.
In his further submission, Counsel stated that the 5th Respondent not being an establishment authorized by law lo seized the properties of the Applicant .He stated that the detention of the properties on the Applicant by the 511 Respondent is therefore unlawful as it amounts to self help.
Learned Counsel to the Applicant further submitted that the African Charter quarantees freedom from harassment while there is a charge pending in Court of competent Jurisdiction and that any harassment amounts to illegality bordering on Contempt of Court. In his further submission, Counsel to the Applicant stated that it is not the duly of the Police to try a criminal case, he submitted that such powers reside exclusively in the Court of law.
Counsel said it is unlawful for the Police to threaten to withdraw a case from the Court of law in order to deal with it extra judicially.
He further stated that if the Police purport to act under an existing law, if such law runs contrary to the Constitution of the Federal Republic of Nigeria and / or the African Charter, he submitted that such law must be held to be a nullity. Counsel cited the case of:
ABACHA VS FAWEHINMI (2000) 2 SC 1.

Learned Counsel further stated that the action of the agents of the 1st Respondent in conducting searches removing property of the Applicant while the charge has already been preferred against him amount to passing guilty verdict even before the case is heard, this derogate on the rights of the Applicant's right of presumption of innocence was meant to foist a situation of fait accompli on the Court of law.
Counsel in his submission obervated that the 1st – 4th Respondent were duly served just as the 5th Respondent was duly served, he stated that the 1st – 4th Respondents never made any effort to defend or responsed to this application.
Counsel submitted that the position of the law is that they arc deemed to have admitted all the averment-s and the positions in the Statement of the Applicant. He stated that the Court is not bound to wait indefinitely for them.
Learned Counsel to the Applicant humbly apply that the relief being sought against the 1st – 4th Respondent be granted since there is no challenge to the averment of the Applicant.
Counsel stated that giving the circumstance of this case can the 5th Defendant be held liable. He referred to the Counter-Affidavit dated the 10th day of March 2006 lo which a reply dated the 3rd day of June was filed.
He urged the Court to discountenanced the Counter-Affidavit filed by the 5th Respondent.
Counsel stated that the Deponent of the Counter-Affidavit claimed to be Head of Administration in the 5th Respondent's company. He argued that the deponent claimed to be head of administration in the 5th Respondent's company. Counsel stated that averment has been rebutted in the reply by the Applicant that the deponent is just a store keeper in another department for the sale of rice, while the Applicant was at the material lime in the Fishery department.

Counsel submitted that the facts deposed to by the said has not been within his personal knowledge as required by the Evidence Act.

He referred to the Counter-Affidavit in which it was stated that there was an auditing of the account- July 2004 and exhibits attached to the said Counter-Affidavit. That the audit report was done on the 9th of August 2004.

Counsel said the Applicant has averred that he was arrested and detained from 1911 July 2004 -
10th August 2005.
He concluded that the implication of the above disparity in dates is that the Applicant has been detained ever since the result of the audit came out and it means that the Applicant has not
omitted an offence as at the time he was detained.

Learned Counsel further stated that the 5th Respondent has adduced that a petition was written on the 20th day of July 2005 and which petition was forwarded to SCID Panti, Lagos.
Counsel argued that the 5th Respondent has not exhibited same and he urged that the Court to invoke the provision of Section 149 of the Evidence Act on this issue.
Learned Counsel informed the Court that the Audit Report attached as exhibit alleged that N 20, 955,910 was stolen but the charge placed before the Applicant and shown in the facts relied upon shows that N 50 million was content of the petition written to Panti.
Counsel told the Court that while the case was still going on at the Chief Magistrate Court another petition was written by the 5 Respondent to zone 2 which is sent to the 3rd Respondent along side the Deponent of the Counter-Affidavit filed to this application and some other officers Invaded the privacy of the Applicant.

Counsel submitted that the Counter-Affidavit filed by the 5th Respondent did not controvert or challenge the facts deposed to the Affidavit filed along with the application.
He slated that there was no denial by the 5111 Respondent of the main issue raised in the facts relied upon by the Applicant.

He further submitted that the Deponent of the Counter-Affidavit is not a Witness of truth. Counsel cited the cases :
(1) AYANWALE & ORS V ATANDA (1988 ) 1SC AT 1.
(2) ENGINEERING ENTERPRISE OF THE NIGER CONTRACTOR LTD VS A.G OF KADUNA STATE (1987) 2 NWLR (PART 57) PAGE 381.
(3) DAVID WEST NIGERIA LAW REPORT 1987 VOL. 1 AT PAGE 457.
(4) BP.LLO VS. A.G. OYO STATE (1986) 5 NWLR (PART 45) PAGE 828.
Learned Counsel humbly urged the Court to grant the prayers of the Applicant against the 1st - 5th Respondent because they have no defence.

In response to this application the l^11 Respondents did not file any Counter-Affidavit but the 5th Respondent filed a Counter-Affidavit dated the 3rd day of March 2006.
Learned Counsel to the Respondent submitted that there is no Affidavit in Support as required by the provisions of Order 2 Rule 2 (1) & (3) of the Fundamental Rights ( Enforcement) Procedure Rule 1979.

Counsel stated that it is a mandatory requirement of the provisions of Order 1 Rule 2 (3) of the Fundamental Rights (Enforcement) Procedure Rule 1979.
He further submitted that failure to comply with this mandatory legal requirement invalidates the present Affidavit.

Learned Counsel further stated that the 5th Respondent has adduced that a petition was written on the 20th day of July 2005 and which petition was forwarded to SCID Panti, Lagos.
Counsel argued that the 5th Respondent has not exhibited same and he urged that the Court to invoke the provision of Section 149 of the Evidence Act on this issue.
Learned Counsel informed the Court that the Audit Report attached as exhibit alleged that N 20, 955,910 was stolen but the charge placed before the Applicant and shown in the facts relied upon shows that N 50 million was content of the petition written to Panti.
Counsel told the Court that while the case was still going on at the Chief Magistrate Court another petition was written by the 5 Respondent to zone 2 which is sent to the 3rd Respondent along side the Deponent of the Counter-Affidavit filed to this application and some other officers Invaded the privacy of the Applicant.

Counsel submitted that the Counter-Affidavit filed by the 5th Respondent did not controvert or challenge the facts deposed to the Affidavit filed along with the application.
He slated that there was no denial by the 5111 Respondent of the main issue raised in the facts relied upon by the Applicant.

He further submitted that the Deponent of the Counter-Affidavit is not a Witness of truth. Counsel cited the cases :

(1) AYANWALE & ORS V ATANDA (1988 ) 1SC AT 1.
(2) ENGINEERING ENTERPRISE OF THE NIGER CONTRACTOR LTD VS A.G 01-'
KADUNA STATE (1987) 2 NWLR (PART 57) PAGE 381.
(3) DAVID WEST NIGERIA LAW REPORT 1987 VOL. 1 AT PAGE 457.
(4) BP.LLO VS. A.G. OYO STATE (1986) 5 NWLR (PART 45) PAGE 828.
Learned Counsel humbly urged the Court to grant the prayers of the Applicant against the 1st - 5th Respondent because they have no defence.

In response to this application the l^11 Respondents did not file any Counter-Affidavit but the 5th Respondent filed a Counter-Affidavit dated the 3rd day of March 2006.
Learned Counsel to the Respondent submitted that there is no Affidavit in Support as required by the provisions of Order 2 Rule 2 (1) & (3) of the Fundamental Rights ( Enforcement) Procedure Rule 1979.

Counsel stated that it is a mandatory requirement of the provisions of Order 1 Rule 2 (3) of the Fundamental Rights (Enforcement) Procedure Rule 1979.
He further submitted that failure to comply with this mandatory legal requirement invalidates the present Affidavit.

By virtue of Order 1 Rules 2 &3 of Fundamental Rights (Enforcement Procedure ) Rules 1979 an Applicant is required to set out the facts relied on in the Statement of Support of his application. The statement of facts should not be on oath. After setting out the facts an application is then required to verify on oath the facts relied on.

The Verifying Affidavit is the prima facie evidence of the statement in the application.
Therefore by virtue of Order 1 Rules 2 (3) of the Fundamental Rights (Enforcement Procedure ) Rules 1979 , an application for leave to enforce fundamental Right must be supported by :

(a) A statement setting out the same and description of the Applicant, the reliefs sought and the grounds in which it sought and,
(b) An Affidavit verifying the facts relied on.
In the present application, the Applicant has complied with the requirement of the law by filing a Verifying Affidavit dated the 15th day of November, 2005.
The Applicant in the instant application is seeking for 7 reliefs, 4 of which arc declaratory reliefs.

Declaratory Orders are discretionary. It is a form of judgment which is usually granted only in circumstances in which the Court is of the opinion, that the party seeking it has taken all facts into account to fully entitle him to the discretion of the court.
A party seeking declaration of a right must do so by giving satisfactory evidence. He can not rely on the non-participation in the case by the other side.
See case of: OKEREOCHA V MINISTRY OF COMMERCE & TOURISM (2001) 1 NWLR (PART 693) PAGE 213.

A Court in the exercise of its discretion to grant reliefs, should not form the habit of granting declaratory reliefs by admission or non-appearance of the other party.

In the present application, the evidence present to the Court for the consideration were the Motion on Notice, Verifying Affidavit, Written Address and Statement pursuant to Order.
On the other hand, the 1st - 41' Respondents did not file a Counter-Affidavit and were not represented at the hearing of the application. The 5th Respondent however filed a Counter- Affidavit in opposition to this application.

The Applicant is expected in this type of application to adduce sufficient evidence to warrant the grant of the reliefs being sought by him.

The Applicant in this present application presented some evidence in this Verifying Affidavit and the Statement pursuant to the Order under which the application was brought. The 5th Respondent has averred in the Counter-Affidavit filed that the facts in the Verifying Affidavit and Statement were at variance with the facts in the Counter-Affidavit.
In such a circumstance where an application is supported by an Affidavit against which there is also a Counter-Affidavit and the facts deposed to in such Affidavit arc irreconcilable in conflict, this is the position in the present application before this Court, to resolve such conflict as they are in the Verifying affidavit and Counter-Affidavit in this application the proper order is a call on the parties thereto to call oral evidence.
The parties to an application need not specifically request for leave to lead evidence on oath, the Court is expected to resolve conflicting Affidavit evidence by calling oral evidence of the deponent to resolve the conflict and if such oral evidence is not called the decision of the trial Court based on the conflicting Affidavit in the absence of the oral evidence will not be allowed to stand on appeal.
See case of: GBADAMOSI V ALETE (1998) 12 NWLR (PART 578) PAGES 406-407.

In the present application, there are so many conflicting facts in both the Verifying Affidavit and counter-Affidavit that this Court can not safely grant reliefs being sought without a call of oral evidence.

There arc conflicting evidence as to the money alleged to be stolen. There are conflicting evidence of N 15 million & N 50 million, this can only be clarified by the call of oral evidence by parties.

There arc also conflicting dates of the arrest and release of the Applicant, 'there is also the conflicting dates as to the audit report, there is also conflicts as to the facts of the search of the house of the Applicant amongst other irreconciliable facts in this application.

Generally where a Court is faced with Affidavit evidence which arc irreconciliable in conflict the Court as in this Court hearing the case would call for oral evidence from the Deponent or such other Witnesses as the parties may call so that the oral evidence would enable it test the Affidavit evidence and thereby resolve such conflicts arising from the affidavit evidence. See eases of;

(1) MICHIKA L.G. VS N.P.C (1998) 11 NWLR (PART 573) PAGE 204.
(2) FATOB1 V FATOBI (1976) 9-10 SC PAGES 6-7.

It is therefore my view that the reliefs being sought by the Applicant cannot be granted by this Court without a call oral evidence by Deponent to the Affidavit and other Witnesses.
Therefore this applications fails and it is accordingly struck out.