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 negative is made out, the onus of proof shifts. That is not so. If the assertion of a negative is an essential part of a plaintiff's case, the proof of the assertion still rests upon the plaintiff. The terms 'negative and affirmative' are after all, relative, and not absolute." ?See also Phipson on Evidence, 15th Edition, Paragraph 4.03 at page 56; The Article Burden and Standard of Proof, by Justice Niki Tobi in Chief Afe Babalola's Law & Practice of Evidence in Nigeria, and Muraina & Ors v. ?Omolade & Ors (1968) 359 @ 362. See also Sections 131, ?132 and 133 of the Evidence Act 2010 stating that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist; that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given, and that in civil cases, the burden of first proving existence or non-existence of fact lies is on the party against whom judgment would be given if no evidence were produced on either side. It is appellants who as plaintiffs sought declarations from the Court and wanted judgment on the basis of their claims and assertion of Respondents' alleged non-compliance with tradition and customs of installation of 3rd Respondent as Ponzhi Nagane. If no evidence was produced by either side, it is their case that would have been dismissed for lack of proof. What is more, under Nigerian Law custom is an issue of fact the burden of proof of which is on the person alleging its existence. See Section 16 of the Evidence Act 2010 and Onibudo v. Akibu (1982) 9 S.C. 29 @ 44, 46, 47. Appellants being the ones who founded their action on existence of tradition and custom that was according to them not observed by Respondents in the installation of 3rd respondent, they had the onus to prove it. I assume it is because they were also aware of that fact hence they entered the witness box first, instead of insisting that Respondents first do so. After all the law is settled that it is the party who bears the burden of proof on the pleadings, regardless of whether he is plaintiff or defendant, that first adduces evidence,: see Okoye v. Nwankwo (2014) ALL FWLR (PT 756) 471 @ 595 - 500, (2014) LPELR-23172 (SC); Onobruchere v. Esegine (1986) 1 NWLR (PT 19) 799. Having failed woefully to prove their said custom let alone how it was breached by Respondents, they cannot now turn around now to say that the burden of proof was on respondents."  Per UGO ,J.C.A in DASHE & ORS V. DURVEN & ORS  (2019) LPELR-48887(CA)  (Pp. 14-17 paras. E-E)

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 by getting the document certified and re-tendered same which was now admitted in evidence. The lower Court in admitting of the earlier rejected document made a distinction between when the general position of the law will apply and what the exceptions are. The lower Court in its ruling at page 183 of the record held thus: "at this stage, I must point out that basically a party cannot seek to tender a document which had been rejected earlier in the proceedings, but this position of the law has two broad classifications (1) Where the document sought to be tendered is the proper one but rendered inadmissible by a provision of the law in itself i.e. qua that document itself. (2) Where the document is one which even though proper, must be put in a particular condition before it can be admitted, like secondary evidence of public records, private documents of which public records were kept, bankers books, etc. The document in issue here falls into the second classification above. In respect of those in the first classification, once rejected, they are taken to have been dealt with on their merits. However in respect of those in the second classification, when the document which then was not put in conformity with what type or copy of it the law allows to be tendered, and were so rejected on that ground, it is permissible for an applicant to obtain the proper copy admissible in law and seek to tender it. If an applicant does so and so applies, that will not be taken as a second bite at the cherry and such permissions will be granted. For the earlier decision refusing the tendering of the copy of the same document was based on the fact that the copy of it sought to be tendered was not put in the condition he law stipulates, such documents must be put before they are admissible in court proceedings." In the case of UZOMA v ASODIKE (2009) LPELR - 8421 (CA), this Court gave credence to the position of the lower Court when it held thus: "It is now settled that a wrongly certified or even an uncertified public document can be re-certified and re-tendered in evidence. See UMOGBAI v AIYEMHOBA (2002) FWLR (PT 132) 192 CA, (2002) 8 NWLR (PT 770) 687, and also LAW OF EVIDENCE IN NIGERIA - S.T. Hon at page 287. Poor certification is generally treated as mere irregularity, and the Court can order the document to be properly certified by curing the defect complained of." Also the Apex Court per RHODES-VIVOUR, JSC in the case of TABIK INVESTMENT LTD & ANOR v GTB PLC (2011) LPELR - 3131 (SC) held thus: "The Court of Appeal set aside the judgment of the trial Court because Exhibits A, B1, B2 AND B3, public documents were not paid for. This is correct, but rejecting the document is rather harsh. The learned trial judge ought to have ordered counsel to ensure that the said documents are paid for, and after payment the trial continues." Based on the foregoing, it becomes obvious that the document in question (which there is no dispute as to the fact that it is a public document) was not rejected on the ground that it was inadmissible under the law, but on the ground that it was not tendered in accordance with the proper form required of a public document. By virtue of the provision of Sections 104 & 105 of the Evidence Act, a public document to be considered proper and admissible must first be certified. See also the cases of OKOREAFFIA & ANOR v AGWU & ORS (2010) LPELR - 4708 (CA); AGBALLAAH v NNAMANI (2005) ALL FWLR (PT 245) 1052 at 1078, paras D - E; DANIEL v ADAJI & ORS [1998] 11 NWLR (PT 574); AGBAJE v COKER (2016) LPELR - 40157 (CA). The Respondents in the course of the trial was able to get the document certified and brought into conformity with the proper and acceptable mode of a public document, the lower Court then had no qualms in admitting the earlier rejected document. Having gone to regularise the document, I have no difficulty in aligning my view with that of the lower Court and the Respondents. The tendering of the proper form of the document is akin to the party regularising its position which in no way prejudiced the Appellant. The apex Court also gave credence to this position on the basis that Courts must strive to do substantial justice rather than relying on undue technicalities. See the case of TABIK INVESTMENT LTD & ANOR v GTB PLC (Supra); OGUNNUBI v KOSOKO [1991] 8 NWLR (PT 210) 511; OLAOSEBIKAN v INEC & ORS (2009) LPELR - 8513 (CA); ADELUSOLA & ORS v AKINDE & ORS (2004) LPELR - 120 (SC); EROMOSELE v FRN (2018) LPELR - 43851 (SC). I also have no difficulty in holding that the re-admission of the document is permissible in the interest of justice. It is also now trite that the Court has moved away from the era of placing undue reliance on technicalities at the expense of the substance and justice of a case. See the cases of AKULAKU & ORS v YONGO [2002] 5 NWLR (PT 759) 135; BANK OF THE NORTH LTD & ANOR v C. T. AKPAJA [2002] 13 NWLR (PT 785) 617; DAKUT v DAKUR (2012) LPELR - 7921 (CA). The trial Court rightly held at page 183 of the record thus: "That was more or less a technical defect, and as such once that is cure by bringing a copy of the same document, which is in the condition or with the particulars, the law stipulates for their admission in Court proceedings, they will be allowed in." Therefore admitting the document in question will not in any way prejudice or overreach the case of the Appellant. At the end of the trial, the Court will weigh all evidence and decide the case based on a balance of probability. From the foregoing, once a public document is duly certified, there exists no impediment to its admissibility by the Court."

Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO ,J.C.A ( Pp. 5-11, paras. E-C )

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 by way of settlement as against a "fee".

b)    Where the employer supplies the tools and other capital equipment, there is a strong likelihood that the contract is that of employment or of service. But where the person engaged has to invest and provide capital for the work to progress, it indicates that it is a contract for service. In claimant's case, the Defendants provided every work tool and the duty of the claimant was to receive stock, sale and account for sales etc. it is contract of service as against contract for service.

c)     In  a  contract  of service/employment,   it  is  inconsistent  for an employee to delegate his duties under the contract and thus where a contract allows  a   person  to  delegate  his  duties thereunder;   it becomes a contract for service. My lord, the terms of the agreement and nature of the claimants duties does not allow claimant to delegate his duties thus; an indicator of a contract of service.

d)    Where the hours of work are not fixed it is not a contract of employment or of service but that for service. In the instant case, the employment of the claimant is fixed by time hours of work this, indicative of contract of employment.

e)     It a not fatal to the existence of a contract of employment/of service that the work is not carried out on the employer’s premises. However, a contract which allows the work to be carried on outside the employer's premises is more likely a contract for service. In the case at hand the claimant carried on his contract at the premises of the defendant thus an indicator that the contract is one of service and not for service.

f)      Where office accommodation and secretary are provided by the employer, it is a contract of service/of employment. The defendants herein provided office accommodation and a secretary from the above guide set out by the Supreme Court in the case of SHENASECURITY CO. LTD - VS - AFROPAK (SUPRA) it can be safely concluded that the contract that existed between the claimant and the Defendant subject of this dispute was a contract of employment or of service and not a contract for service.

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:

1.  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.
2. Please prepare and read your files - even when holding briefs or when a brief has been 'forced' on you.
3. 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 / Federal High Court, .... Division / (any other tribunal or court). (Note that the name of the trial court judge is not mentioned. The Court of Appeal is not interested in the name of the Judge. The Court / Tribunal  is the most important reference to be made.
• The Judgment / Decision is found at pages ................. of  (Volume.... of ) the Record of Appeal - (Note: Even though this might have been covered in your Brief, it is still important to mention this during hearing)
• The Appellant filed a Notice of Appeal against the decision of the High Court / Federal High Court / Tribunal on the .....(date of filing the Notice of Appeal). The Notice of Appeal is contained on pages.......... of the Record of Appeal (Note: This is where you'll know if your appeal is competent. The dates within which to bring an appeal against a judgment must be clear. See for instance, Section 24 of the Court of Appeal Act. If you notice any error in the dates during your preparations, don't panic! If the date for hearing the appeal isn't close by, quickly prepare motion for extension of time or trinity prayers (where leave is required and you are out of time). However, where the dates are close by, it may be imperative to give the counsel on the other side an update to avoid incurring huge cost! Running away from cost might not be totally out of the table, but you could mitigate it with earlier prompt.
• Where you had obtained an Order for Amendment of the Notice of Appeal, Please refer to the Notice of Appeal on the Record of Appeal as "Original Notice of Appeal" and then refer the court to the date of filing the Amended Notice of Appeal and the date the Order was made by the Court. It is also important to state that you would be relying on the 'Amended Notice of Appeal'. Where there are several amended Notices of Appeal, do ensure you refer to the latest one. In case of several notices of Appeal filed during the period allowed for filing Notices of Appeal, also ensure to rely on just one of the Notices of Appeal. The Courts have held that filing several Notices of Appeal within time is allowed, the Appellant only has to indicate which one is to be relied upon in the Appeal.
• The Record of Appeal was transmitted on the ...(date appeal was entered)..... (Again, this is another point to note where extension of time may be required to regularize your Record of Appeal). Where the time for compilation and transmission of Record had elapsed, it is important to file an application for extension of time to regularize it. Ensure the application is filed and served before the date of hearing of the appeal (if out of time) to avoid further delays.
  
• The Appellant's Brief of Argument was filed on the ...........(date of filing the Appellant's Brief)........(Yet again, this may be key. If your appellant's brief was filed out of time, ensure there's an application to regularize it).
• Upon receipt of the Respondent's Brief of Argument, the Appellant filed a Reply Brief on the ..........(date of filing the Reply Brief)......
• Seek to adopt both Briefs in support of your appeal and urge the Court to allow the appeal.
  
• Draw the attention of the Court to salient issues / parts of your brief, noting that you have a very little time to do this. Precision is key.
1.  Respondent
4. As a Respondent's counsel, you may have a Preliminary Objection argued in your brief. Please bring this up before the appeal is argued. Inform the Court of the Notice of Preliminary Objection, date it was filed, and where the argument is contained in your brief (e.g. paragraphs 4.00 - 4.09 of the Respondent's brief of argument on pages 7 - 10 of the Brief). Adopt the preliminary objection and the argument and pray the Court to strike out / dismiss the appeal
5. Where there is no Preliminary Objection, just adopt your Respondent's Brief of Argument - Noting also the dates for filing the Respondent's Brief of Argument - Where you are out of time, it is most appropriate to seek an extension of time to file it.

These are the few tips. Mastering the dates for filing of appellate processes is always key. For general Appeals, three months for civil (final) appeals, and 90 days for criminal (final) appeals. 14 days for interlocutory appeals. See Section 24 of the Court of Appeal Act. For Record of Appeal, Order 8 of the Court of Appeal Rules, 2021 specifies  the time to compile the Record of Appeal. There are however special rules for special appeals, It is always  important to seek these special rules when dealing with interlocutory appeals for fast track appeals or special appeals relating to AMCON, EFCC, Electoral Disputes etc. The dates for filing of the Briefs are also regulated by these Rules.

I hope these have settled some nerves!

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 from any of the recipients or a reply from any of the addressees forwarding their team’s proposed and adopted strategies for internal control. Any such return email would suffice and satisfy this requirement. Especially as Exhibit D8 is bereft of any signature block which would display incode of the domain name, sever, subject contents and other characteristics of the mail and its being sent.

 
In the unreported case of SUIT NO: NICN/CA/17/2014MR. OBONA AKPAN OFEM Vs. LOCAL GOVERNMENT SERVICE COMMISSION & 3ORS delivered on the 31st May 2017, this court held in respect of documents lacking evidence of delivery or dispatch that “the said exhibit..... I find were not served on the claimant and as such are only evidence of documents prepared by the defendant  and have no nexus with the claimant despite they bear the claimant’s name. In the instant case I find that there is nothing on Exhibit D8 to indicate that this email was ever sent to the within named addressees or anyone afortori received by any one"

 

 

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 had relied on the defence or alibi - he simply was not at the scene of the crime at all. However, in seeking to discredit the witness, the Defendant's counsel ended up placing the defendant right in the scene of the crime! The answer to the question would have, at least to any audience, shown that the defendant was at the scene of the crime. It was just whether he was armed or not. At this point, it would also be wrong for counsel to decide to chose which part of the cross examination he wanted, and which part he does not. In the case of RIMDAN V. LAR, the Court held as follows

A counsel is not allowed to pick and choose from relevant answer to his questions in cross-examination. In the instant case, the counsel to the appellant asked one question too many and got answers he never bargained for which indeed knocked the bottom off his case. He would not be heard to say that the answers given by the DW7 to his questions under cross-examination were not pleaded and therefore inadmissible. There is no basis for remotely suggesting that DW7's answers under cross-examination ought to have been pleaded before admitting them in evidence as they emanated from cross-examination unchallenged.

What do you think?

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 have actual knowledge of the date the suit would be heard, and if such a party decides to stay away from Court he does so at his own peril. See Per RHODES-VIVOUR, JSC in DARMA v. ECOBANK (2017) LPELR-41663 (SC), Nevertheless, it is on record that the appellant was served or informed of the hearing date of 15/3/2016 via SMS. The Evidence Act has now taken notice of the technology age we are in that electronic evidence is now admissible. This was ably tackled by my learned brother, per PETER-ODILI, JSC in ENL CONSORTIUM LTD. V. SHAMBILAT SHELTER (NIG.) LTD. (2018) LPELR- 43902 (SC), when he pungently and right held: "The point has to be made that the phone call mode of service would ordinarily be of good service so long as the party is provided the notice at least 48 hours before the scheduled Court date. The regularity of service is no longer jettisoned because it was made electronically as the current rules of Court have ensured. See Order 2 Rule 4(c) of the Court of Appeal, 2013 rules." The lower Court in this case reported as COMPACT MANIFOLD & ENERGY SERVICES LTD V. PAZAN SERVICES (NIG.) LTD. (2017) LPELR-41913 (CA), Per NIMPAR, JCA, observed and I adopt and agree with him as a solid legal foundation for electronic service of hearing notice and other legal processes thus: "The essence of a hearing notice is to bring to the notice of the party that his matter will come on the date named in the notice of hearing. Can the notice be effected by other means of notification? The answer is in the affirmative. When the rules use the words hearing notice, it did not specify that it must be hardcopy. Was the judge wrong to use the electronic method of informing parties about the date of hearing? I pause here to say this is the 21st century and technology is ruling every aspect of human endeavour and therefore even Courts must be abreast of these technological advancement and be ready to absorb the aspects that will enhance the quality of justice and aid speedy determination of cases. The Courts have also moved on in that regard. Indeed, electronic service has taken root in the Nigerian legal system and it would be strange for anybody to frown at being served electronically. See CONTINENTAL SALES LTD. V. R. SHIPPING INC (2012) LPELR- 7905 (CA). I am of the view that the Court below was in order by directing that the appellant should be informed by text. The Court as a discretion to direct the notification in a particular way. Issuance of a hard copy hearing notice is not a requirement of law and failure to issue and serve same cannot offend the rule of fair hearing. See MIRCHANDANI V. PINHEIRO (2001) 3 NWLR (Pt. 701) 552 @ 573. wherein the Court held: "It is not in all cases that the absence of it will automatically vitiate trials in the context of Section 36 of the 1999 Constitution. A hearing Notice is not therefore a mandatory judicial process that must be issued and served in all cases. The requirement is a rule of the Court not a statutory requirement. Rules of Court are to aid the Court in adjudication of cases. It is not to arm-twist the Court into becoming a robot." Per UWANI MUSA ABBA AJI, JSC (Pp 29 - 32 Paras B - E)