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Choice of Counsel vs. Jurisdiction... What should the Court determine first?

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Instances in which burden of proof will be on the person who makes a negative assertion

 "I am in no doubt that this argument of appellants about negative and positive assertions is misconceived, for while it is true that the burden of proof is generally on the person who substantially asserts the positive of an issue, and not on the person who makes a negative assertion, there is a caveat to that principle to the effect that where a negative assertion forms an essential part of a plaintiff's case (as it evidently is in the case of the appellants) the burden of proof of such allegation rests on him. The law on this point was lucidly stated by Bowen L.J. in Abrath v. N.E. Railway. Co 11 QBD 440 at 457 when he said that: "Now in an action for malicious prosecution, the plaintiff has the burden throughout of establishing that the circumstances of the prosecution were such that the Judge can see no reasonable and probable cause for instituting it. In one sense that is the assertion of a negative, and we have been pressed with the proposition that, when a negativ

Whether a public document tendered and marked rejected in the same course of proceedings can still be re-tendered and admitted into evidence

  REGENCY (OVERSEAS) CO. LTD V. ARIORI & ORS (2019) LPELR-47281(CA)  "The main issue in controversy is one dealing with whether a public document tendered and marked rejected in the same course of proceedings can still be re-tendered and admitted into evidence. It is the general position of the law that a document tendered and marked rejected is no longer admissible in evidence. See the cases of EBONYI STATE UNIVERSITY & ORS v ETENG (2012) LPELR - 19973 (CA); ADDISON UNITED NIG LTD v LION OF AFRICA INSURANCE LTD (2011) ALL FWLR (PT 594) 130; WASSAH & ORS v KARA & ORS (2014) LPELR - 24212 (SC). Indeed there is no dispute as to the fact that the proper foundation and certification necessary for the admissibility of the document in question was not complied with by the Respondents in the tendering of the document and the Appellant rightly objected to its admissibility which the Court then marked as rejected. The Respondents then went back to put its house in order

Contract of Service / Contract for Service ??? - Factors to consider

The Supreme Court of Nigeria in the case of SHENA SECURITY CO. LTD VS - AFROPAK (NIG) LID & 2 OTHERS (2008) LPELR 368/2002; (2008) 18 NWLR (pt.1118) 77, (2008)4-5 S.C (PT 11) 117 laid down the following factors that should guide counts in determining which kind of contract parties entered into. a)     If payments are made by way of "wages" or "salaries" it is indicative that the contract is one of service. If it is a contract for service, the independent contractor gets his payment by way of "fee" in the case at hand; remuneration is neither payment of wages or salaries nor payment of fee. The contractual agreement was modeled upon an apprentice style where the labour of the servant is remunerated by way of settlement at the end of the contract to assist such servant or employee continue on his own rather than payment of monthly salary which the employee may not be able to save and startup a business of his own. The claimant was therefore; to be paid b

Appellate Hearing: Tips to settle your nerves!

This is just a random post I felt should go out immediately. Perhaps I'll edit in future, but right now, the tips should go out. More often than not, practitioners face their 'first time' before the Court of Appeal or appellate practice in general and seem to get it all mixed up with the 'hearing' process before these courts. The following are some of the tips (mark my words 'some', not 'all') to settle your nerves a bit, while appearing before the Court:  As always, neat appearance, humility and voice are key attributes of a good legal practitioner. They win you respect and honour before the Court. Like I said, I'll keep this short. Please prepare and read your files - even when holding briefs or when a brief has been 'forced' on you. Start your appellate hearing (as appellant's counsel) in the following Order (please these are just random tips) This is an appeal against the Judgment /  Decision of the High Court of ..... State / Fed

How Evidence of Correspondence is Proved

Practice Note:   How Evidence of Correspondence is proved:    SUIT NO. NICN/ABJ/144/2017 AYO OYARERO VS THE BRITISH HIGH COMMISSION   "However this email only shows what the 1st defendants officer Edward Nyong prepared for dissemination to the GPC holder and Approvers in Lagos and Abuja. There is no evidence that this email was ever sent out or received by any one, the law is clear on how the actual delivery of correspondence can be proved. See The law has been well established that in order to prove that a letter was actually delivered to the addressee there must be  proof of receipt and this can be established by (a) dispatch book indicating the receipt, or (b) evidence of dispatch by registered post or evidence of witnesses, credible enough that the person was served with the document. NLEWEDIM Vs. UDUMA [1995] 6 NWLR 309 at p394 para B. followed in AGBAJE Vs. FASHOLA [2008] 6 NWLR (Pt. 1082)1. With regards to email correspondence I find and hold that an acknowledgement email f

Cross Examination is an art, but not a licence to ask any random questions

    Hi everyone! I only wished to make this post as a guide, a sort of warning while asking cross examination questions in court. More often than not, lawyers are always willing to pick out a lying witness. Afterall, it is part of the duty of counsel to discredit a witness, especially one that's telling lies. In carrying out this duty however, the lawyer has to be smart and avoid getting in trouble. Questions that tend to give credence to the case of the other party ought not be asked at all. It may sound a bit elementary, but I just came across one. I've been reviewing this judgment for a few hours now, trying to untie something in it. So I came across the question a defence lawyer asked an eyewitness to the crime as follows: "was the 3rd Defendant armed or not when he came looking for the deceased"? Now, the question the 'smart' lawyer asked may seem innocuous, but it ended up ruining the whole case built up by the defendant. In that case, the Defendant

Can you serve hearing notice by electronic means?

COMPACT MANIFOLD & ENERGY SERVICES LTD v. PAZAN SERVICES NIG. LTD (2019) LPELR-49221(SC) Principle PRACTICE AND PROCEDURE - HEARING NOTICE - Whether hearing notice can be served by electronic means "May I dwell on the issue of hearing notice that was allegedly not served on the appellant as amounting to denial of fair hearing. It is however the mode of service that is being challenged by the appellant's learned counsel in this appeal to have denied him fair hearing. Failure to give notice of proceedings to the opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void. This is so because the Court would have no jurisdiction to entertain it. Hearing notice is a document or information that emanates from the registry of a Court, giving legal notification to parties in a suit the dates on which the suit would be heard. Once a party or his counsel is served hearing notice they are both deemed to