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Decision Of A Court With Competent Jurisdiction – Meaning And Effect Of

Decision Of A Court With Competent Jurisdiction – Meaning And Effect Of

by | Jul 26, 2016 | Uncategorized



“In this Constitution
unless it is otherwise expressly provided or the context otherwise requires-
“decision” means, in relation to a court, any determination of that court and
includes judgment; decree, order conviction, sentence or recommendation”.
  • SECTION 318 (1) OF THE 1999
    CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED).
It is trite that the
decision of a court of competent jurisdiction no matter its nature is absolute
and binding on all and sundry without question until such decision is legally
and legitimately set aside by a competent court of appellate jurisdiction. As
stated in Section 318 (1) above, the decision of a court varies from judgment
to decree, order, conviction, sentence and recommendation. The decision of a
court of competent jurisdiction could be either final or interim in nature.

A final decision of a
court as the name connotes is final and permanent with respect to that suit and
the court becomes functo officio i.e. the court cannot revisit same. The
only option available to any aggrieved party in such instance will be to have
same set aside either in its entirety or in part, by a competent court of appellate
jurisdiction. Examples of final decisions are conviction, sentence and decree.
An interim decision on the other hand is neither final nor permanent. As the
word ‘interim’ connotes, it is made to last for a specific period of time,
usually pending the determination of the suit or a motion on notice. The coming
to an end of an interim order of a court of competent jurisdiction does not
adversely affect whatever such order was meant to achieve or had achieved and
examples of interim decisions are court orders and recommendations.
The fact of a decision
being final or interim does not affect its application and effectiveness. A
decision of a court with competent jurisdiction remains valid and enforceable
and must at all times be obeyed. Whether or not an appellate court will have
come to a different decision compared to that of a trial court, even at that,
appellate courts do not ordinarily intervene as matters of practice in
decisions which border on the exercise of discretion by the lower court. An appellate
court will only interfere/intervene where it considers that the exercise of
discretion by such lower court – was wrongly exercised based on wrong or
erroneous premise; or was perverse; or where there was a violation of some
principles of law or procedure- such as where the lower court took irrelevant
materials into consideration or failed to consider relevant materials in
arriving at its decision; and in all other circumstance where such exercise
would occasion a miscarriage of justice.
When a court makes an
order or give a final judgment, every person against or in respect of whom such
order is made have an obligation to obey it unless and until that order is
discharged. This is because courts are recognized as the hallowed chambers of
justices, where even-handed justice is meted out to all and sundry, without
sentiment, emotion, favoritism or being unnecessarily embroiled in class
legalism.
I hope this write up was
beneficial to you. You are welcomed to leave your questions, comments,
constructive criticism, suggestions, new ideas, contributions etc in the
comment section or my email address which is thelawdenike@gmail.com I look forward
to reading from your comments.
LEGAL AUTHORITIES USED:
  • KUBOR V DICKSON (2013) 4 NWLR PART
    1345 PG. 534
  • AHMED V COP BAUCHI STATE (2012) 9 NWLR
    PART 130-131 Para. E-A, IHUNWO V. IHUNWO (2013) 8 NWLR PART 1357 P. 576
  • 1999 CONSTITUTION (AS AMENDED)
DISCLAIMER NOTICE:
This blog is a free education material, for your general information and
enlightenment purposes ONLY. This write up, by itself does not create a
Client/Attorney relationship between yourself and the author of this blog.
Readers are therefore advised to seek professional legal counseling to their
specific situation when they do arise. This blog is protected by Intellectual
Property Law and Regulations. It may however be shared with others parties or
person provided the writer’s Authorship is always acknowledged and this
disclaimer notice attached.

www.thelawdenike.wordpress.com

Ed’s Note – This article was originally posted here. 
Photo Credit – www.hotels.ng 
Senate Passes Nigerian Railway Corporation Bill, 2016

Senate Passes Nigerian Railway Corporation Bill, 2016

by | Jul 22, 2016 | Uncategorized


Senator Gbenga Ashafa (Chairman, Senate Committee on Land Transport)  

The Senate on Thursday,
July 21, 2016, passed the Nigerian Railway Corporation Bill 2016 seeking to
replace the 61 year old obsolete Nigerian Railway Corporation Act, 1955. The
Bill sailed through third reading after a very rigorous exercise; and hopes to
revitalize the Railway sector for optimal development and conform to modern
trends and challenges.

The Nigerian Railway
Corporation Repeal and Reenactment Bill 2015, was sponsored by Senator Andy Uba.
The Chairman of the Senate Committee on Land Transport, Senator Gbenga Ashafa and
other members held interactive sessions with the Ministry of Transport and the
Nigerian Railway Corporation to evaluate the challenges facing the rail sector
including a public hearing. 
A crucial reform which the
bill is presenting is the necessary inclusion of Public Private Partnership
(PPP) Initiatives in the Nigerian Railway Sector. The bill also separates the
regulator from the operators. It is Hoped that introduction of the Bill will
drive the needed economic reform in the industry and provide private investment
opportunities for the sector.
Dunmade Onibokun – Scope of Immunity Clause on Nigerian Public Officers

Dunmade Onibokun – Scope of Immunity Clause on Nigerian Public Officers

by | Jul 15, 2016 | Uncategorized

President Muhammadu Buhari

By
virtue of the Nigerian 1999 Constitution, certain public officers are granted
immunity. This post will be analyzing the relevant provision of the constitution
providing for immunity and taking a look at the extent of the cover provided by
the immunity clause. 
The
8th edition of the Black’s Law dictionary defines immunity as ‘any
exemption from a duty, liability or service of process; especially such
exemption granted to a public official. L.B Curzon’s, A Dictionary of Law, further
defines immunity as a “freedom or exemption from some obligation or penalty. 

The
relevant provision of the constitution which provides for immunity for public
officers is Section 308, of the 1999 Constitution, Laws of the Federal
Republic of Nigeria (2004). The law provides that –
308. (1) Notwithstanding anything to the contrary in
this Constitution, but subject to subsection (2) of this section –
 (a) no civil
or criminal proceedings shall be instituted or continued against a person to
whom this section applies during his period of office;
 (b) a person
to whom this section applies shall not be arrested or imprisoned during that
period either in pursuance of the process of any court or otherwise; and
(c) no process of any court requiring or compelling
the appearance of a person to whom this section applies, shall be applied for
or issued:
  Provided that in ascertaining whether any
period of limitation has expired for the purposes of any proceedings against a
person to whom this section applies, no account shall be taken of his period of
office.
 (2) The
provisions of subsection (1) of this section shall not apply to civil
proceedings against a person to whom this section applies in his official
capacity or to civil or criminal proceedings in which such a person is only a
nominal party.
 (3) This
section applies to a person holding the office of President or Vice-President,
Governor or Deputy Governor; and the reference in this section to “period
of office” is a reference to the period during which the person holding
such office is required to perform the functions of the office.
From
the provisions of Subsection 3 of the above statute, it is clear that the only
persons granted immunity in the Constitution include; the President,
Vice-President, Governor and Deputy Governor. 
Also
from Sub -section 1 of the law, it also states clearly that the above mentioned
people cannot be arrested, charged to court and no court has the power to compel
their appearance during the period in which they hold this office. Except, it’s
a civil proceedings, in which the public official is a party due to his
official capacity. In essence, neither the Police, EFCC nor any other security
agency in the country can arrest any of these public officials.
This
provision has caused a lot of debate, with some calling for the removal of the
shield upon which these public officials are covered by virtue of a
Constitutional review deleting the immunity clause. A strong reason they say is
because no one should be above the law.  It
should however be noted that the reason behind imputing the immunity clause in
the first place was the protection of public interest wherein the interest of
the nation in the preservation of its highest offices outweigh the inconvenience
to the individual for the temporary postponement of prosecution and to save
such public office holder from harassment while the person is in office. 
What however is the scope
of the immunity?
Questions
have arisen from different quarters as to whether the immunity cause protects
the public officer from investigation? It should be noted that this is not the
case. 
In
the case of Fawehinmi V. Inspector
General of Police and 2 Ors (2002) 7 NWLR (Pt. 767) 606, the question
was whether the immunity clause protects a Governor (against whom allegations
of criminal conduct was made) from investigation by the police. The Supreme
Court held in the case that neither the law nor the Constitution protects any
person from being investigated by the Police. The outcome of the investigation
however would not crystalize into a criminal prosecution while the public
officer still holds office. Uwaifo JSC further stated “that a person protected
under Section 308 of the 1999 Constitution, going by its provisions, can be
investigated by the police is, in my view beyond dispute.” The essence of the above
judicial pronouncements is that though a public office holder covered by
Section 308 of the Constitution may be investigated by government security agencies,
they may not be prosecuted until after the expiration of their official tenure.

It is also worthy of note that by virtue of the Diplomatic
Immunities And Privileges Act, every foreign envoy and every foreign consular officer, the members of the
families of those persons, the members of their official or domestic staff, and
the members of the families of their official staff, are  accorded immunity from suit and legal process
in Nigeria.

 

Dunmade
Onibokun Esq.
Principal Partner
Adedunmade Onibokun & Co.
www.adedunmadeonibokun.com
Argyle & Clover – Obtaining Letters Of Administration (Without Will) At The High Court Of Lagos State

Argyle & Clover – Obtaining Letters Of Administration (Without Will) At The High Court Of Lagos State

by | Jul 15, 2016 | Uncategorized


When
a person dies intestate i.e. without leaving a Will, no person is allowed under
the administration of estate law to administer the estate of the deceased
without obtaining Letters of Administration. To do so will amount to
intermeddling with the Estate of the Deceased.
The
Letter of Administration empowers the persons named therein to administer the
Estate of the Deceased. Prior to obtaining the grant of a Letter of
Administration on an Estate, the properties of the deceased are deemed to vest
in the Chief Judge of the State.[1]

Who
can apply for a grant of Letters of Administration?
The
Administration of Estate Law of Lagos State[2], states in order of priority,
persons who are beneficiaries of a Deceased Estate and thus can apply for a
grant:
1.     The Surviving spouse
2.     The Children of the deceased or the issues of any
child who predeceased the deceased
3.     The Deceased’s Parents
4.     Brothers and Sisters of the Deceased
5.     Half Brother(s) and sister(s) of the Deceased.
6.     Grand Parents
7.     Uncles and Aunts.
 Procedure
for Obtaining Letters of Administration 
STEP
1
  • Apply for
    Grant At the Probates Registry
1.     An Application letter shall be submitted at the
Probates Registry. The Application letter shall contain the following
information:
1.     Full names of the Deceased
2.     Date of Birth of the Deceased
3.     Last known address of the Deceased
4.     The Profession of the Deceased
5.     Marital Status of the Deceased
6.     Name of Deceased’ spouse and children (if any)
7.     Date and Place of Death
8.     Names of 2 Proposed Administrators
9.     Relationship between the Deceased and the proposed
Administrators
 The
following documents shall be submitted with the Application Letter:
1.     Death Certificate of the Deceased
2.     Passport photographs and valid means of
identification of the Proposed Administrators
  • Obtain
    Application Form from the Probates Registry
After
submitting the application letter, an applicant shall purchase an Application
Form from the Probates Registry which shall be completed and executed by the
Proposed Administrators. The Application Form is made up of the following
documents:
1.     Inventory of moveable and immovable Bounties/Assets
of the Deceased
2.     Statutory affidavit of next of Kin. (This is to be
signed by the Next of Kin)
3.     Oath of Administration
4.     Administration bonds
5.     Justification of sureties (2 Sureties one of whom
one must possess real property while the other must own a valid means of
identification shall execute this form). It is also important to ensure that
the sureties are available to appear in person when called upon by the Probate
Registrar.
6.     Bank/Share Certificate (Details of the Deceased’s
Bank Account and monies therein and Shareholdings be stated here)
7.     Particulars of Freehold/Leasehold property owned by
the Deceased.
8.     Schedule of debts owed by the Decease
9.     Schedule of funeral expenses.
  • Submission
    of Bank/Share Certificate at the Bank(s)/Registrars of the Companies where
    the Deceased owns Accounts/Shares
1.     The Bank(s)/Registrars shall state details of monies/shares
and the value thereof.
  • Return of
    Duly Completed & Executed Application Form to the Probates Registry,
    Payment of Publication Fee, Assessed Fee and Obtaining Approval of the
    Probates Registrar
1.     Upon completion and execution of the Application Form,
same will be submitted at the Probates Registry.
2.     The Probates Registry will proceed to assess fees
payable on the Estate based on the information contained in the Application
Form.
3. The Proposed Administrators shall proceed to make
payment of Assessed fee and Newspaper publication fee with bank draft at a
pre-designated bank and evidence of payment i.e. Bank teller shall be furnished
to the Probates Registry.
4.     The Proposed Administrators may also apply to the
Probate Registry to have the estate assessment fee drawn from the deceased’s
account if there are sufficient funds therein.
5.     The Probates Registrar shall meet with the Proposed
Administrators & Sureties to verify that they meet the requirements to be
Administrators & Sureties.
6.  The Probates Registrar approves the application and
orders the Proposed Administrators to depose to the Oath of administration.
  • Publication
    of Notice of Application for Letters of Administration
1.     The application is published in a newspaper to
notify anyone interested in the estate of the deceased that a grant of letter
of administration has been sought by the Proposed Administrators.
2.     Once the publication is done, a period of 21 days
will be given for any-one who wishes to contest the application of the proposed
administrators to present such contest/opposition.
3.     At the expiration of the 21 days, if there are no
oppositions, the Probates Registry shall proceed to draft and issue the Letter
of Administration.
The
entire process of obtaining Letters of Administration of an Estate can be
cumbersome and grueling especially for persons not familiar with the process.
Chances of being exploited as a result of ignorance are pretty high. It is
therefore advisable to seek the services of a Legal Practitioner.
 [1]
Section 10 of the Administration of Estate Law Cap. 3 Laws of Lagos State 1994
[2]
Section 49 (1)
This
article is written by Betty Tokurah an Associate Counsel with the Law Firm of
Argyle & Clover Attorneys at Law
Ed’s Note- This article was originally published here. 
Faruq Abass – NICN Judgment On Work Place Discrimination Based On The Hiv Status Of An Employee

Faruq Abass – NICN Judgment On Work Place Discrimination Based On The Hiv Status Of An Employee

by | Jul 15, 2016 | Uncategorized



Mr.
X commenced a lawsuit against Company Y at the National
Industrial Court (NIC), Lagos (Suit No. NIC/LA/265/2015) seeking, inter alia, a
declaration that the termination of his employment by the Respondent on 24th
March 2015 constitutes a violation of his fundamental rights to human dignity
and freedom from discrimination as guaranteed by sections 34 and 42 of the
Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles
2, 5 and 19 of the African Charter on Human and Peoples’ Rights on the ground
that his termination was based on the discovery that he was HIV positive. The
Applicant also sought for general, aggravated and exemplary damages against the
Respondent for the shabby and wrongful manner in which his employment was
terminated. 

The
pertinent facts of the case are as follows: the Applicant contended that the
Respondent had a policy of mandating its employees to undergo HIV tests at
various times of the year and on one of such occasions; he was discovered to be
HIV positive. Upon discovery of the Applicant’s HIV status, his Line Manager
asked him to go home to take care of himself and never return to the office.
The Applicant’s solicitor consequently wrote a letter to the Respondent
requesting it to rescind the termination of the Applicant’s employment and
compensate him, but the Respondent did not respond to the letter.
As
a result of the above, the Applicant filed an Originating Summons and a Written
Address at the NIC through his solicitor, Mr. Faruq Abbas of Abdu-Salaam Abbas
& Co., by which he requested for the reliefs stated above. 
The
Respondent’s Counsel filed a Written Address in response to the lawsuit where
he argued that the Applicant’s employment was not terminated and that the
Applicant failed to resume at work based on his inability to come to terms with
his HIV status. The Respondent however conceded that the last time it paid the
Applicant’s salary was in March 2015 and it did not make any attempt to visit
the Applicant at his residence. The Respondent’s Counsel raised other arguments
and objections, which includes— challenging the competence of the lawsuit on
the ground that it ought to have been commenced through a writ of summons since
the facts of the case were purportedly disputed. 
Decision
of the National Industrial Court 
In
a judgment which was delivered on 15th July 2016, Honourable Justice
Obaseki-Osagie agreed with the Applicant’s Counsel’s argument that the
Applicant was constructively dismissed from employment and that his dismissal amounted
to a violation of his fundamental right to human dignity and freedom from
discrimination since it was ostensibly premised on his HIV status. 
The
Court also held that it was unlawful for a Company to mandate its employees to
undergo any form of medical test, as doing so would amount to an invasion of
the employees’ right to privacy and flagrant disobedience of section 10 (6) of
the Protection of Persons Living with HIV and Affected by Aids Law of Lagos
State, 2007. It is instructive to state that the Protection of Persons Living
with HIV and Affected by Aids Law of Lagos State, 2007, makes it an offence for
a company to mandate its employees to undergo any medical or clinical tests.
The
Court therefore awarded general damages in favour of the Applicant for the
violation of his fundamental right to human dignity and freedom from
discrimination (24 months gross salary as general damages and 1 month salary in
lieu of notice).
Lessons
from the National Industrial Court’s Decision 
One
of the major lessons from this decision is that the mere fact that an employer
terminates the employment of an employee without giving any reason for doing so
will not protect the employer from a work place discrimination lawsuit. This is
because the Court will not hesitate to award significant damages against an
employer, where the employee is able to adduce credible evidence showing
that his/her employment was terminated based on a health related condition that
does not in any way affect the employee’s ability to perform his/her roles.
Another
important lesson is that employers must refrain from making it compulsory for
their employees to undergo any form of medical or clinical tests, as this would
be regarded as an invasion of the employees’ right to privacy and a disobedience
of section 10 (6) of the Protection of Persons Living with HIV and Affected by
Aids Law of Lagos State. Therefore, employers must ensure that their health
policy/handbook contains ample provisions, which make it clear that the
employee has a right not to submit to a clinical or medical test and the
failure to submit to such test would not be punished in any manner
whatsoever.
Lastly,
employers in Nigeria must, as a matter of policy, always consult their external
Counsel before taking decisions regarding the termination of an employee’s
employment, as failure to do so might affect the image of the company and
expose it to prosecution for a breach of the Protection of Persons Living with
HIV and Affected by Aids Law of Lagos State and other similar legislations in
Nigeria.
Conclusion 
It
is expected that the NIC’s decision would help to stem the tide of work place
discrimination on HIV related grounds in Nigeria, as a significant number of
employees who have been victims of work place discrimination on HIV related
grounds are usually not bold enough to seek redress in the Court.
It
should be noted that this article is for general information only. It is not
offered as advice, on any particular matter, whether legal, procedural or
otherwise. If you have any questions about this article, please contact the
author on foa@abdu-salaamabbasandco.com
Managing
Partner
Abdu-Salaam
Abbas & Co.
Legal Practitioner with
core competence in commercial litigation, property law, debt recovery,
alternative dispute resolution and family law. Represents clients regularly in
civil lawsuits in various Courts in Nigeria and advised companies and high net
worth individuals.