Are processes attached to amended pleadings still valid in law?

 However, in the case of Gusau v. Comptroller General of Customs & Ors. [2014] LPELR-23367[CA] 18-19, the Court of Appeal held that processes attached to the original pleading which has been amended are still valid and can be relied on in determination of the suit. Ekanem, J.C.A., who read the leading judgment, held thus:

 

“I agree with counsel for the respondents that the written statement on oath is a distinct process from the statement of defence. It serves, inter alia, to support the statement of defence but it is not a part of it. This is why it is assessed and paid for distinctly. Thus, a statement of defence may be amended by order of Court and the amended statement of defence filed without the need to file an amended or fresh witness statement on oath. An amended pleading or process including a statement of defence has a retrospective effect and dates back to the date of the original process…It follows from the above that when the lower Court granted the respondents leave to amend their statement of defence and the already filed amended statement of defence was deemed as properly filed, the amended statement of defence took effect from the date of the original statement of defence and indeed took its place. Whatever was filed to support the original statement of defence is thus deemed to support the amended statement of defence from the date of the original statement of defence.”

What is required in a land dispute when one party submits a survey plan

 BOLANTA & ANOR v. TOSIN NOVEL FIRMS LTD (2020) LPELR-52507(CA)

"From the foregoing, it is clear that the parties, that is the 1st appellant, and the respondent both knew the land they were disputing its ownership or title thereto. The fact that different names were given to the parcel of land in dispute by the parties "GBEDUGBEDU OR EKUNKUN" is of no legal significance in the determination of who between the respondent and the 1st appellant has proved a better title to the said land. The conflict in the name(s) of the disputed land can easily be solved bearing in mind the principles of law espoused the case of Akiti vs Oyekunle (2005) All FWLR Pt. 776 P.570 @ 586, wherein, this Court propounded that: "It is apparent that in the instant case, that the land in dispute is known to all the parties even though it is being called by different names or described differently. The law is settled that where the identity of the land in dispute is known to the parties, the fact that different names are given to the land or area where the land is located is called by separate names, is not fatal to the case of the party claiming interest in such land. In EDJEKPO v. OSAI (2007) ALL FWLR (Pt. 361) 1617, (2007) 8 NWLR (Pt. 1037) 635 at 671 - 672 Paras H - B, the Supreme Court, per ONNOGHEN JSC held: "...it is not strange, in fact it is a common feature in a claim for title to land that parties to the dispute call the land in dispute by different names, and will always identify different landmarks as constituting the boundary features of the land. The Courts have always seen through the contrivances and determine the real issue in controversy between the parties, which is; who is the actual party entitled to be declared the owner." In the instance case and from the finding of the trial Court, the claimant produced both a survey plan and a composite plan identifying the area of the land in dispute and it is trite law that this Court will not ordinarily interfere with the findings of facts by a trial judge unless same is shown to be perverse." Furthermore, in paragraphs 10 to 12 of his Statement of Oath, the 1st appellant deposed to these facts as located on pages 171 of the record of appeal, as follows: "10. That I know as a fact that I hired a heavy duty machine to bulldozer a portion of the land sold to me by the 2nd defendant's family. 11. That I know as a fact that the driver of the heavy duty machine reported to me that while he and his staff were bulldozing the land they were challenged by one Elder J.A. Esan to stop work claiming that the land belongs to a company whose name is Tosin Novel Firms Nig. Ltd. 12. That I know as a fact that the land that was bulldozed belongs to me and not to Tosin Novel Firms Nig. Ltd or any one whatsoever." By the foregoing depositions of the 1st appellant, it is not in doubt that he knew the land in dispute was sold to the respondent and also to him. This parcel of land in dispute was well-known to the respondent and the 1st appellant. I am in full agreement with the learned judge of the lower Court when he held as recorded on pages 420 - 421 of the printed record of appeal thus: "I seem to agree with the submission of Toyin Oladipo Esq., that the claimant and defendants are talking about the same piece of land and it does not matter whatsoever name anybody decides to give to or call the land in the event of dispute. I also share his view that there is no paragraph in the 2nd defendant's statements on oath where the location of Gbedugbedu land is given as distinct from the land that the defendants now call or refer to as Ekunkun land. For clarity, paragraph 33 of the 2nd defendant's statement on oath states as follows: 33. That my Family's representatives resident in Afon (the situs of the land in question) knows the length and breath of Ajara Family land located at Ajara Family land. Gbedugbedu Area Afon Asa LGA of Kwara State. It is important to note that while the claimant called the surveyor who survey his land to testify and tendered a survey plan showing the extent and location of its own land at Gbedugbedu Area, the 1st defendant neither called his own surveyor nor tender a survey plan. More importantly, in paragraph 3 of his written Statement on Oath No. 2 which he adopted, Pw.2 who drew the survey plan marked as Exhibit 8 stated categorically that it is the same land at Gbedugbedu Area Afon that the defendants now refer to as Ekunkun land. Like I said earlier the defendant did not call any surveyor or even give evidence of the exact location of the land called Ekunkun; it is therefore my view that Gbedugbedu and Ekunkun land is one and the same and the claimant and defendants are talking about the same piece of land. I hold therefore that the claimant has sufficiently established the identity of the land in dispute as being the same as that of the 1st defendant." Per IBRAHIM SHATA BDLIYA, JCA (Pp 21 - 25 Paras E - F)

What is required for a deponent in an affidavit who derives information from another source?

 "A deponent of an affidavit in any proceeding before a Court of law is a witness in the matter. Section 115 (1) of the Evidence Act, 2011 enjoins the deponent as a witness, to depose to facts in an affidavit that "either of his own personal knowledge or from information which he believes to be true". It is not enough to set out in the preamble paragraphs of an affidavit for the deponent to restate the facts that he has been authorized either by his principal or employer, and the client to make the affidavit; and that he derived the facts averred in the affidavit in the course of his employment and/or from his personal knowledge and/or information generally. For every assertion in a specific averment the deponent, consistent with Section 115 (1), (3) & (4) of the Evidence Act, must disclose with particulars his source of information and belief.
The counter-affidavit of Charles Jibuaku, Esq., a Legal Practitioner, is replete with obvious hearsay and unverifiable facts.
Paragraph 4 of the counter-affidavit, for instance, avers "that private investigation reveals that the Applicant had secretly relinquished his interest in the res in favour of the deponent and/or other unknown persons, which fact is concealed from this Honourable Court but can be ascertained from the tenancy contracts and proof of payment of rent". No tenancy contract or receipt for payment of rent was exhibited. The source of this information on which the weighty allegation is predicated remains a matter for conjecture. The averment, like many others in the counter-affidavit, is reckless, and offensive of the provisions of Section 115 of the Evidence Act. Paragraph 3 thereof does not state how the deponent of the counter-affidavit comes to the bold assertion "that the deponent of the Applicant's affidavit is a total stranger to this proceedings." The averment does not seek to discharge the burden of proof laid on his shoulders by Sections 131 and 132 of Evidence Act that he who asserts any facts must prove that those facts exist inorder to succeed.
Upon reading the counter-affidavit, one gets the impression that it is tailored to meet an application for stay of execution of a judgment. There is no such prayer in the application. The quixotic counter-affidavit appears to substantially attack a phantom."  Per EKO ,J.S.C in jimoh v. hon. minister federal capital territory & ors (2018) LPELR-46329(SC)  (Pp. 10-12 paras. A-A)

FreelanceEconomy.NG How Does It Work?

 Https://FreelanceEconomy.NG How Does It Work?

https://FreelanceEconomy.ng (or Freelance Economy) is an opportunity sharing platform where Nigerian freelancers make money by solving every day business problems for Nigerian business owners 

Is Freelance Economy Legit?

It is an open platform where business owners post different gigs, part time jobs and deals, (depending on their needs) while freelancers make money every day by doing these gigs for a flat fee or a commission. It is 100% legit

What Kind of Deals and Jobs Are on Freelance Economy?

Users typically post a wide range of opportunities on the platform, depending on the needs of the business owner. Some businesses need freelancers that can bring in buyers for their products, some need freelancers that can bring in more users to their platform, while some are looking for part-time people to hire 

Transaction Example

For example, a car dealer puts up a post offering 100k to anyone who can quickly find a buyer for his car. One of the freelancers finds him a buyer quickly, and earns the N100k. Both parties are happy, and each move on the the next deal.

Founder of Freelance Economy 

The platform was founded by Kema Ufelle, a business lawyer and member of the World Economic Forum. He created Freelance Economy to organize all legitimate money-making opportunities in the semi-formal economy, for young Nigerians to access

Benefits of FreelanceEconomy.NG

The platform is a very innovative and simple-to-navigate platform that provides several legit money making opportunities every single day for young Nigerians. It also gives business owners a down-to-earth opportunity to source all the help needed in solving their day-to-day problems

What Is Unique About Freelance Economy?

Unlike foreign freelance platforms, this is a simple platform that is unique to the semi-formal middle-man style of doing business in Nigeria. The platform does not take a commission from whatever the freelancers earn. The freelancers only pay a N200 monthly subscription to access all opportunities on the platform (free for the first 7 days). However, it is free for the business owners who post deals on the platform.

Click here to visit https://FreelanceEconomy.ng

Joinder of Issues and the Determination of Objection on Cause of Action.

One of the common feature of preliminary objections to civil cases is the complaint of non- disclosure of reasonable cause of action. Like many objections against jurisdiction, a plaintiff or claimant's case can be defeated on that score. The rationale behind the principle is that an aggregate of facts pleaded in the Statement of claim or facts ought to have disclosed an actionable wrong against the Defendant. In deserving circumstances however, this objection can be upheld, leading to the termination of the case.

The focus of this post however deals with the recent decision of the Supreme Court in the case of Adejugbe v. Aduloju (2022) 3 NWLR (Pt. 1816) 131. In that case, the apex court considered the procedural step a Court should take when an objection relating to disclosure of cause of action is made. More often than not, most defendants are always eager to hear their objections, even before the substantive suit is determined. Some of the reasons for this push may not be far fetched. It saves time for the Defendant and prevents the full hearing of the case on the merits. For practical reasons, a defendant may also wish to buy time or delay the hearing of the case, all of which are more within the realm of litigation management.

The powers of the Court to entertain a preliminary objection at any stage is however wide and discretionary. Most of the Rules of Court prescribe a discretionary power to the Court to exercise, whether the preliminary objection should be heard at the beginning of the suit, or whether the objection should be heard alongside the substantive case. The decision of the Supreme Court in Adejugbe v. Aduloju might however have limited this discretionary powers of the Courts, when dealing with objections on disclosure of reasonable cause of action. This limitation deals with the status of the pleadings as at when the objection was raised. In the case, the Supreme Court considered the issue and held thus:

Once issues have been joined, an objection based on want of cause of action is no longer available. In this case, the appellant and the 2nd respondent had filed a statement of defence and had joined issues with the 1st respondent on the facts in the statement of claim putting them up for trial. Further, the 1st respondent had filed his reply to the said statement of defence. At that stage, the contention that the 1st respondent’s case disclosed no reasonable cause of action should have been determined after conclusion of evidence and final addresses, along with the merit of the case in the judgment of the trial court. [S.P.D.C. Ltd. v. X. M. Federal (2006) 16NWLR (Pt. 1004) 189 referred to.] (P. 161

The clear purport of the decision of the apex court is to put the exercise of discretion on when to hear the objection on cause of action to check. Once pleadings have been concluded, the objection ought not be taken till the end of the case. A further merit in this position of the court is that hearing the objection together with the substantive suit would prevent the court from making decisions that would prejudge the substantive suit. It would also aid the speedy dispensation of justice.

However, the practicability of this procedure might have reduced the chances of hearing such objections to none! More often than not, most Rules of procedure now require a Defendant to file his statement of defence alongside the objections. The implication is that once the Claimant files his Reply to the Defence (which incorporates the objection), hearing such preliminary objection on grounds of non-disclosure of cause of action would have been rendered otiose. The only avenue would then be for the Defendant to refuse to file a Defence, but merely file a preliminary objection alone, which could lead to demurrer, which in turn, in now prohibited under the Rules. 

These are my early thoughts on the decision. Kindly share your take on it in the comment section. Again, thanks for reading. 

Whether a joint application can be filed by more than one person to enforce a right under the Fundamental Rights (Enforcement Procedure) Rules

FINAMEDIA GLOBAL SERVICES LTD v. ONWERO (NIG) LTD & ORS
(2020) LPELR-51149(CA)

"On the propriety of two or more persons filing a joint application for the enforcement of their fundamental rights, it is important to understand that, as rightly pointed out, an action for the enforcement of fundamental rights is quite unlike an action in a civil suit, where parties may, expectedly, be joined in an action as plaintiffis quite unlike an action in a civil suit, where parties may, expectedly, be joined in an action as plaintiff. This cannot happen in an action under the fundamental rights enforcement procedure rules 2009, because of the sui generis nature of fundamental rights. The contention that the respondents' grievances is the determining factor is hollow, to say the least, because Fundamental Rights are so basic and inalienable to every person, individually. That explains the use of the word "any person" in Section 46 (1) of the Constitution; See RAYMOND S. DONGTOE V. CIVIL SERVICE COMMISSION, PLATEAU STATE & ORS (2001) 4 SCNJ Page 131. The right to approach a Court to enforce a Fundamental Right is conferred by Section 46 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), sub Section (1) provides: "Any person who alleges that any of the provisions of this chapter has been, is being, or likely to be contravened in any State in relation to him may apply to a High Court for redress." In this appeal under consideration, the application was brought by two applicants (1) Onwero Nigeria Ltd and (2) Mr. Uchenna John Paul Chidokwe. The words used in Section 46(1) of the Constitution are very clear, and it is not by accident that the constitution and the rules use the same adjective in qualifying who can apply to a Court to enforce a Right as, "any", which denotes singular, and does not admit pluralities in any form. Individual rights and not collective rights take prominence in fundamental rights applications; see R.T.F.T.C.I.N. V. IKWECHEIGH (2000) 13 NWLR Part 683 at Page 1 and OKECHUKWU V. ETUKOKWU (1998) 8 NWLR Part 562 Page 511. It is significant that the respondents' brief concedes and argued that the genesis of the claim under the Fundamental Right (Enforcement Procedure) Rule, arose from the act of eviction or locking up of the shops by the appellant or its agents. That being so; as was held by the Supreme Court in EGBUONU V. BORNU RADIO TELEVISION CORPORATION (1997) 12 NWLR (Pt. 531) 29 at 40, 42, 43, 44 - 45; the learned trial judge, with respect, was in error to have assumed jurisdiction to entertain, hear and determine the application, because stricto sensu, this has nothing to do with fundamental rights as enshrined in Chapter 4 of the Constitution. The vain effort on the part of the respondents, at justifying it by relying on Section 44 of the Constitution fell flat on its face because, any grievance founded on trespass, however stretched, cannot come within the ambit of the fundamental rights enforcement procedure rules. The position of this Court, and indeed the Supreme Court in recent times is that Chapter IV of the 1999 Constitution, as amended protects individuals and not groups as the expression "every individual", "every person" and "every citizen" clearly suggest. See R.T.F.C.I.N. v. IKWECHEGH? (2000) 2 NWLR part 683 page 1 and UDO V ROBSON & ORS (2018) LPELR-45183. Learned counsel to the appellant relied on UMARU KWAGE & 7 ORS V. UPPER SHARIA COURT GWANDU & ORS (supra) to drive home the point that joint application of fundamental rights application is allowed. This contention however, failed to take into consideration, the fact that the issue of joint application was neither raised nor addressed by this Court, for reasons of which it cannot be an authority on the issue, same as the issue of joint application was neither raised nor addressed by the Supreme Court in DIAMOND BANK PLC V H.R.H.EZE DR PETER OPARA & ORS (2018) LPELR-SC. On whether there is a need to call in aid Section 14 of the Interpretation Act, for the purpose of interpreting the word 'any person" in Section 46 (1) of the Constitution, I would hasten to add that the necessity for that has not arisen, because the word is clear and unambiguous, and therefore not likely to lend itself to any other interpretation. See SARAKI V. FRN (2016) 3 NWLR part 1500 page 531 and BRONIK MOTORS LTD V. WEMA BANK LTD (1983) 1 SCNLR 296. The 2009 Rules was promulgated to enhance the enforcement of fundamental rights; Order IX Rule 1 is particularly revolutionary in this regard, because it sought to cure defects and technicalities. Be that as it may, no exception was made for multiple applications. If indeed there was any intention or desire to allow for multiple applications, it would have been provided for in Order IX Rule 1. Alas, no such exception was made. Reliance on the said rule is of little or no help to the respondents in this case; for the avoidance of doubt, it reads: 1. Where any stage in the course of or in connection with any proceedings there has, by any reason of anything done or left undone, been failure to comply with the requirement as to time, place or manner of form, the failure shall be treated as an irregularity and may not nullify such proceedings except as they relate to- i) Mode of commencement of the application; ii) The subject matter is not within Chapter IV of the Constitution or the African charter on Human and People's Rights (Ratification and Enforcement) Act. The respondents' case before the trial Court was incompetent for all these reasons, thus the judgment emanating from the incompetent action cannot stand." Per MOHAMMED MUSTAPHA, JCA (Pp 12 - 17 Paras E - B)

JUDGMENT AND ORDER - STAY OF EXECUTION OF JUDGMENT - Whether a party can apply for stay of execution of a judgment in the absence of a pending competent appeal

 

 

IN RE: THE SHERIFF, HIGH COURT OF JUSTICE RIVERS STATE, PORT HARCOURT & ANOR (2017) LPELR-42509(CA)

 "The second limb of the objection is that as at the time of filing the Motion for stay of execution by the Applicant on the 5th March, 2014, there was no pending appeal which absolutely rendered their said Motion filed pending appeal incompetent. To resolve this, it may be necessary hereat to beam on the decision in Intercontractors vs. UAC (1988) NWLR Part 76 page 303, per Karibi-Whyte, J.S.C; where it was stated that every judgment takes effect on pronouncement. A Judgment Debtor seeking to stay the execution must show that he is challenging the judgment, or is asking for time to comply with the terms of the judgment. If it is a challenge of the judgment, a Notice of Appeal ought to have been filed, or will, on undertaking, be filed. See Oladapo V. ACB (1951) 13 WACA 110. See also the decision of this Court in Shinning Star Nigeria Ltd & anor vs. A. K. S. Steel Nigeria Ltd & ors (2010) LPELR CA/L/558M/2009, per Saulawa, J.C.A; where the Supreme Court case of Oladapo vs. ACB (supra) was referred to. It was recognised that although the general principle is that for an application for stay of execution or proceedings to be worthy of being granted, it must be predicated upon certain grounds which include that there must have been filed a valid and pending appeal, however, an application for stay could be granted in exceptional circumstances without any pending appeal.
Further, in the case of Nigerian Agricultural Co-operative Bank Ltd. vs. Ozoemelam (2016) LPELR-26051 (SC), the Supreme Court, per Ngwuta, J.S.C; reiterated the principle that an application for stay of execution pending the determination of appeal presupposes that an appeal had been filed before or simultaneously with the application. After all, a major consideration in the application is whether or not there are arguable grounds of appeal. Be that as it may; in exceptional or appropriate circumstances, the order for stay may be granted when the appeal had not been lodged upon an undertaking to file the Notice of Appeal without delay. See NDLEA vs. Okorodudu (1997) 3 NWLR Part 492 page 221; Fatoyinbo vs. Osadeyi (2002) 5 SC Part 11 page 1.
All these established that even with or without a pending Notice of Appeal, an application for stay of execution can be considered by the Court where there is an undertaking by the Applicant to file the Notice or there is already pending, an application for leave to appeal or for extension of time to appeal which is a clear manifestation of the Applicant's eagerness or intention or a seeming undertaking to file the Notice of Appeal the moment the order of the Court granting leave or extension of time to appeal is made therein.
In the instant application, the Applicant in paragraph 10 of its 3rd Further Affidavit in support of this Motion filed on 14/11/2016 averred that on the 31st October, 2016, and consequent upon the extension of time to appeal against the judgment of the lower Court granted by this Court, the Applicant filed a Notice of Appeal on the 1st November, 2016 attached as Exhibit "N" thereto.
What matters is the state of events at the time of considering the application or granting the order for stay of execution. At the time of consideration of this application, there was already filed, a Notice of Appeal by the Applicant pending before his Court.
In Nwabueze vs. Nwosu (1988) NWLR Part 88 page 257, the Supreme Court held the Court has discretion to grant stay of execution on being satisfied that there are exceptional circumstances which warrant the exercise of the Court's discretion in the application's favour. This is so whether there is an appeal pending or not.
All these evidently emasculated the contentions of the 1st Respondent under the second limb of its objection, and, as such, this Court is presented with no further option than to overrule the preliminary objection raised by it. Accordingly, the preliminary objection raised by the 1st Respondent is hereby disallowed."   Per ORJI-ABADUA ,J.C.A (Pp. 21-25 paras. F)