Nigerian Monthly Law Reports NMLR

12/01/2016

On meaning of Issue Estoppel:

Estoppel, is the rule of evidence which prevents the party estopped from denying the existence of a fact and the plea is a bar to testimony. A party relying on the plea succeeds on the proof of the following facts:-

(a) that the parties or their privies involved in both the previous and the proceedings in which the plea is raised are the same;

(b) that the claim or issue in dispute in both proceedings are the same:

(c) that the subject matter of the litigation in the two cases is the same;
(d) that the decision relied upon to support the plea is valid, subsisting and final; and

(e) that the court that gave the previous decision relied upon to sustain the plea was a court of competent jurisdiction.

12/01/2016

On meaning of Estoppel:

Estoppel, is the rule of evidence which prevents the party estopped from denying the existence of a fact and the plea is a bar to testimony. A party relying on the plea succeeds on the proof of the following facts:-

(a) that the parties or their privies involved in both the previous and the proceedings in which the plea is raised are the same;

(b) that the claim or issue in dispute in both proceedings are the same:

(c) that the subject matter of the litigation in the two cases is the same;
(d) that the decision relied upon to support the plea is valid, subsisting and final; and

(e) that the court that gave the previous decision relied upon to sustain the plea was a court of competent jurisdiction.

14/09/2015

On how to determine an appeal on ground of law, mixed law and facts and facts:

“Before making the distinction between grounds of law, mixed law and facts, and facts, first of all read carefully the ground of appeal and its particulars to understand thoroughly the substance of the complaint. Find out if the ground of appeal contests facts. If it does it can only be a ground of facts or mixed law and facts. Once facts are not in dispute. That is to say facts are settled, a ground of appeal can never be on facts or mixed law and facts. The ground of appeal can only complain of the wrong application of the law to settled facts and that is a ground of law. It is very easy to identify a ground of appeal on facts.”

- Per Rhodes-Vivour, JSC in Enterprise Bank Ltd V. Deaconess Bose Aroso & 5 Ors Suit No. 166/2003 cited in Aragbiji of Iragbiji & Anor. V. Olabode Oyewinle & 2 Ors (2013) 7 NMLR

01/04/2015

On the role and function of Courts

“A court of law is a court of cold facts and law and not a court of fiction. Fiction belongs to Alice in wonderland. Facts belong to the court where the judge, almost visibly, sees in his mind a scale, hence it is called an imaginary scale. He feeds fact into either scale, depending on which side gives the evidence. In a criminal case, until the prosecution weighs right down the Judge does not convict. In a civil case the judge measures the delicacy of the tilting scale at the time he assesses the evidence. The tilt may be slight yet he gives judgment for the side to whom it tilts. If there is no evidence fed into one of the scales, then it is for whom the bell tolls! It tells for the empty scale, for eminently, the slightly fed scale wins against the empty scale.”

- Per Kayode Eso, JSC in State V. Aibangbee (1988) 3 NWLR (pt. 84) at 562 cited in Corporal Bonny Aikhadueki V. The State (2013) 6 NMLR

20/03/2015

On the scope of authority of Counsel in a case

"...It is for this reason that courts are not patient with litigants who, while proceedings are going on interrupt counsel and sometimes even the court, creating a nuisance of themselves when they have the slightest inkling or convince themselves that their matters are not being properly presented by their counsel. What a client does with his counsel outside court is between him and his counsel but when proceedings in court are in progress, his counsel is master of his client’s case and whatever pronouncements he makes in court regarding his client’s case will be seen by the court as authoritative and as representing his client’s position. Clients are not masters to their counsel and how they conduct their client’s cases in court are entirely up to them. It will be setting a dangerous precedent if the reverse were the case. There is a fiduciary relationship between a counsel and his client which should ensure that a client’s rights are fully being advanced and protected. There is a duty on counsel to present his client’s case with utmost devotion, sincerity and honesty. In doing so he must stand firm and refuse to be dictated to by his client."

- Per S.S. Alagoa, JSC in Chief Great Ogboru & Anor. V Dr. Emmanuel Ewetan Uduaghan & 2 Ors (2013) 6 NMLR

20/03/2015

On the scope of authority of Counsel in a case

“Once a counsel appears in court in a case, and announces his appearance, the court assumes he has the authority of his client for the conduct of the case. It is not for a client to announce the appearance of his counsel....It is not for the court to start an enquiry into his authority and the court never does… Once he is so instructed, and his appearance and announcement in court, that he is so instructed, raises the presumption of his authority he assumes full control of the conduct of his client’s case. … once a matter is within the ordinary authority of counsel. … For a client to jettison one counsel for another, for the simple reason that the first counsel failed to win his case, and the other would be required to conduct the same case in that court, or to make such failure to win a case a ground of appeal in a higher court is a complete misconception of the authority of the lawyer.”

- Per Kayode Eso, JSC in Adewunmi V. Plastex (Nig) Ltd Vol. 17 (1986) (Pt. II) NSCC p. 852 at 861 cited in Chief Ogboru & anor V. Dr. Emmanuel Uduaghan & 2 Ors (2013) 6 NMLR

27/02/2015

On the distinction between Cause of Action & Right of Action

“Cause of action can safely be defined as the fact or facts which establish or give rise to a right of action, it is the factual situation which gives a person a right to judicial relief. A cause of action is to be distinguished from right of action. A right of action is the right to enforce presently a cause of action. In other words a cause of action is the operative fact or facts (the factual situation) which give rise to a right of action which itself is a remedial right.”

- Per Oputa, JSC (of blessed memory) in Egbe V. Adefarasin (1987) 18 NSCC (Pt. 1) 1 @ 16 cited in A.G Adamawa State & 15 Ors V. A.G, Federation (2014) 6 NMLR

14/11/2014

On Nature of Damages

The primary object of an award of damages is to compensate the plaintiff for the harm done to him or a possible secondary object is to punish the defendant for his conduct in inflicting that harm. The rationale behind the compensatory theory for the award of damages is found in the maxim restitutio in integrum which in other words means to restore the injured party to the position he or she was in prior to the injury. Also, general damages such as the law will presume to be the natural or probable consequence of the defendant’s act need not be specifically pleaded. It arises by inference of law and need not therefore be proved by evidence and may be averred generally. On the other hand, special damage is such loss as the law will not presume to be the consequence of the defendant’s act but which depends in part, on the special circumstances of the case. Special damages must be specifically pleaded and strictly proved. The obligation to particularise a claim for special damages arises, not because the nature of the loss is necessarily unusual, but because a plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible. An award of damages is within the discretionary powers of the trial court.

An appellate court would not usually interfere with a previous award unless satisfied (i) that the trial court acted under a mistake of law; or (ii) where the trial court acted in disregard of some principle of law; or (iii) where it acted under a misapprehension of facts; or (iv) where it has taken into account irrelevant matters or failed to take into account relevant matters; or (v) where injustice would result if the appellate court does not interfere; or (vi) where the amount awarded is either ridiculously low or ridiculously high that it must have been a wholly erroneous estimate of the damage. Also, a person who has been fully compensated under one head of damages for a particular injury cannot be awarded damages in respect of the same injury under another head.

Per Kekere-Ekun, JSC in British Airways V. P.O. Atoyebi, SAN (2014) 6 NMLR

19/06/2014

“Evaluation of evidence comes in two forms.

(a) Findings of fact based on the credibility of witnesses, and

(b) Findings of facts based on evaluation of evidence.

In (a) an Appeal Court should be slow to differ from the trial court. After all it was he that saw and heard the witnesses, he watched their demeanour and so his conclusions must be accorded respect. But in (b) an Appeal Court is in as good a position as the trial court to evaluate the evidence. In both (a) and (b) the conclusion of the trial Judge should be accorded much weight except where found to be perverse.

Trial courts receive evidence. That is perception. It is then the duty of the court to weigh the evidence in the context of the surrounding circumstances of the case. That is evaluation. A finding of fact involves both perception and evaluation”.

- Per Rhodes-Vivour, JSC in Ayorinde & 3 Ors V. Sogunro & 6 Ors (2012) 5 NMLR

15/01/2014

On Bindingness of Records of Appeal:

"The law is trite that an appellate court cannot go outside the records of appeal in search of evidence favourable to any of the parties. Like pleadings which bind parties at the High Court, the Court of Appeal and the Supreme Court as appellate courts, are clearly bound by the records of appeal. In other words, records of proceedings or appeal bind the parties and the Court until the contrary is proved. This is because there is a strong presumption of the genuineness of the record which is rebuttable"

-Per Mahmud Mohammed, JSC in Prince Abubakar Audu V. FRN (SC.61/2009 delivered on 25th January, 2013)

20/12/2013

"It is long settled that it is the duty of the trial court to receive all relevant and admissible evidence. That is perception. The next duty is to weigh the evidence received from both sides and decide where the scale tilts on qualitative and compelling evidence. That is evaluation. A finding of fact involves both perception and evaluation. It is not the duty of the appeal court to evaluate evidence. This is the primary responsibility of the trial court. But where the trial court fails to evaluate evidence properly the appeal court is duty bound to re-evaluate evidence and make correct findings of its own. Where evaluation of evidence entails issues of credibility of witnesses the appeal court should be reluctant to differ from a trial judge’s findings of fact based on credibility of witnesses. This is so because the trial judge had the opportunity which an appeal court never had of hearing and watching the demeanour of witnesses as they testify. The trial court is obviously best suited to assess a witness credibility. But where the findings are based on drawing inferences and making findings from admitted and established facts and documentary evidence, an appeal court is in as good a position to evaluate the evidence as the trial court."

- The Supreme Court per Rhodes-Vivour, JSC in Ademola Odutola & 11 Ors V. Prof. Akin Mabogunje & 4 Ors.

10/10/2013

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