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NOTABLE CASES 2019
MARCH 2020
2019 IN
RETROSPECT
The year 2019 for the Legal industry was generally “uneventful” with respect to decisions of
our superior courts in civil and criminal matters. This could be due to several factors but
particularly the General Elections which took place in March 2019 and the attendant host of
election petitions (which are mostly time bound) going all the way to the Supreme Court.
Nonetheless, there are noteworthy decisions emanating from the Appellate Courts in 2019
(and some 2018 cases reported in the Law Reports in 2019) that have shaped/are shaping the
jurisprudence in different areas of procedural and substantive law. These cases are identified
below.
1
The year 2019 for
the Legal industry
was generally
“uneventful”
Principle: Non-Governmental Organisations and public-spirited individuals now have
the locus standi to commence Public interest litigation with respect to environmental
matters.
In this case, the Supreme Court extended the scope of locus standi in cases pertaining to
environmental pollution and overturned the decision of the Court of Appeal that the Appellant
had no locus standi to bring an action against the Nigerian National Petroleum Corporation
(NNPC) for failing to clean up or reinstate the Ineh/Aku streams/rivers after its corroded
pipeline ruptured, fractured and spewed its entire contents into the surrounding streams and
rivers of Ineh and Aku in Abia State, Nigeria.
In summary, the Supreme Court held that it would be wrong for the court to allow outdated
technical rules of locus standi to prevent public interest groups from bringing an action to
effectively police the corridors of powers and prevent violations of the law. According to the
Supreme Court, government agencies and parastatals are not only accountable to law makers
for the way they carry out their functions, they are responsible to the court of justice for the
lawfulness of what they do.
Centre for Oil Pollution Watch v.
Nigerian National Petroleum
Corporation [2019] 5 NWLR (Pt.1666)
518 (SC)
2
Before the Judgment by the Supreme Court in the above case, the position of the law as
expounded by the Supreme Court in previous cases such as Adesanya v President FRN [1981]
5 SC (Reprint) 69 and Owodunni v Registered Trustees CCC [2000] 10 NWLR (Pt. 675) 315 had
always been that a person with no sufficient personal interest or legal right in a suit could not
bring the action. Such a person was considered a busybody interloper.
However, this case appears to have extended the scope of the concept of locus standi to
include public interests, with respect to environmental degradation, and as such, is a departure
from the general concept of locus standi. So, in environmental matters, Non-Governmental
Organisations, such as the Appellant, have the requisite locus standi to sue on the basis of
public interest. However, it is not clear whether this expansion would apply to non-
environmental degradation matters.
I M P L I C A T I O N :
3
this case appears
to have extended
the scope of the
concept of locus
standi to include
public interests …
Principle: Effect of Defective Arbitration Clauses (Pathological Clauses)
In this case, the Arbitration Agreement of parties referred to the “Chairman, Chartered
Institute of Arbitrators (London) Nigeria Branch”, as the appointing authority in the event
parties were unable to agree on choice of arbitrators, rather than the “Chairman, Chartered
Institute of Arbitrators (United Kingdom) Nigeria Branch”. The Appellant sought to rely on this
defect to impinge the agreement arguing that it was defective. The Supreme Court held,
agreeing with the Trial Court, that what was important was giving effect to the intention of the
parties where such intention is clear, regardless of any error in nomenclature.
The Court further held that there was nothing before the court to suggest that the respondent
was misled or that he was in doubt as to who the appointing authority was and that regardless
of the pathological nature of the clause, the courts would uphold such clauses where it is
possible to give it a meaning in order to give effect to the general intention of the parties.
Mekwunye v Imoukhuede [2019]
13 NWLR (pt. 1690) 439 (SC)
4
The Court further held that
there was nothing before
the court to suggest that
the respondent was misled
or that he was in doubt as
to who the appointing
authority was.
This is the first decision in Nigeria where the Supreme Court has determined the effect of
Defective/Pathological Arbitration Clauses. The decision also shapes the general attitude of
Nigerian Courts at all levels to pathological clauses.
To the extent that the intention of parties can be identified in such clauses, Nigerian Courts
would give effect to the agreement of parties.
I M P L I C A T I O N :
5
Principle: General and Special damages can be awarded in an action for breach of
contract and it would not amount to double compensation
In this case, the Appellant was denied boarding by the Respondents for her trip from Dallas to
Nigeria and was informed that her ticket was cancelled without any explanation,
notwithstanding that her ticket was confirmed thrice with clear inscription thereon “17 Dec OK”
before the date of her trip. The Respondent did not also make an alternative arrangement or
provide accommodation for the Appellant after the cancellation of ticket and the Appellant had
to purchase a ticket from another airline to travel.
The trial Court awarded the Appellant general damages for the inconveniences she suffered for
the breach of contract and also ordered the Respondent to refund the money she paid for the
ticket. On appeal, the Court of Appeal upturned the award of general damages on the ground
that under the Montreal Convention punitive or aggravated damages cannot be awarded
against an airline. On further appeal to the Supreme Court, the Supreme Court overruled the
decision of the Court of Appeal and upheld the decision of the trial court, holding that general
and special damages can be awarded for breach of contract and this will not amount to double
compensation. The Supreme Court, in distinguishing general damages from punitive or
aggravated damages, held that the Appellant was entitled to general damages for the
inconveniences suffered in addition to a refund.
Mekwunye v Emirates Airlines
[2019] 9 NWLR (Pt. 1677) 191 (SC)
6
The trial Court awarded the
Appellant general damages for
the inconveniences she suffered
for the breach of contract and
also ordered the Respondent to
refund the money she paid for
the ticket.
Prior to this decision, the position of the law as espoused by the Supreme Court in the case of
Armels Transport v. Transco (Nig.) Ltd. [1974] 11 SC p. 237 and which has been consistently
applied is that a party is prevented from making the same claim under two heads using
different names. Thus, where such a party is duly compensated under one head of damages,
he is not entitled to an award of damages under another head.
However, this case stands for the preposition that the Courts can now validly award general
damages for inconveniences/hardship suffered as a result of the loss or damage occasioned in
addition to an award of special damages for a specific loss or damage suffered even where it
seems that the award of specific damages sufficiently compensates the party and such will not
be deemed to amount to double compensation.
I M P L I C A T I O N :
7
Principle: An appeal dismissed for want of diligent prosecution (i.e. owing to the
Appellant’s failure is a final decision and cannot be relisted by the same court.
The Appellants failed to file their brief of argument within the time prescribed by the Rules of
Court and the Respondent filed an application to dismiss the appeal for want of diligent
prosecutions. Upon the filing of the Respondent’s application to dismiss, the Appellants filed an
application for leave to amend its notice of appeal. The Court of Appeal heard the Respondent’s
application and dismissed the appeal for want of diligent prosecution on the grounds.
On appeal to the Supreme Court, the decision of the Court of Appeal was affirmed on the
ground that the Court of Appeal was right to have dismissed the appeal given that the
Appellants failed to file their brief of argument within the prescribed time and had no
application before the Court for enlargement of time within which to file the brief. The
Supreme Court further held that “even if the application for leave to amend the notice of
appeal was granted, the application for dismissal of the appeal for want of diligent prosecution
would still have been considered and probably granted because the appellants' brief had been
out of time not for months but years”. The Supreme Court in conclusion held that the Court of
Appeal having dismissed the appeal was functus officio and could not sit on appeal over its
own decisions as there was no provision in the rules for the relisting of an appeal dismissed for
want of diligent prosecution.
Attorney-General Of The Federation &
Ors v. The Punch Nigeria Limited &
Anor (2019) LPELR-47868(SC)
8
…the application for dismissal of the
appeal for want of diligent
prosecution would still have been
considered and probably granted
because the appellants' brief had
been out of time not for months but
years
Although it is quite curious that the Court would dismiss an appeal in which there was a
pending application to amend the notice of appeal, however this appears to be the effect of this
decision. Therefore, parties, particularly Appellants, are advised to ensure that all processes
are filed within the prescribed time and in the event of any delay, the necessary applications
for enlargement of time are filed timeously, as a decision flowing from want of diligent
prosecution is final and cannot be set aside except on appeal.
I M P L I C A T I O N :
9
Principle: Effect of discrepancies in the names of a receiver/manager in a
professional capacity
In this case, the 3rd Appellant's name as it appeared on the originating summons was Mr.
Simeon Fadeyibi while his name as the Receiver/Manager contained in the Deed of
Appointment annexed to the summons was Mr. Simeon Ololade Fadeyibi. The Supreme Court
held that such discrepancy could not be regarded as a mere misnomer and that in the absence
of any averment or documentary evidence explaining the discrepancy between the two names,
the Court was right to hold that the discrepancy was a fundamental defect and not a mere
misnomer. The Supreme Court went further to stress the importance of the order of names
written in a professional capacity sanctioned by law.
Titilayo Plastic Industries Limited & Ors
v. Chief Joshua Abesi Fagbola [2019]
12 NWLR (Pt. 1685) 1 (SC)
10
I M P L I C A T I O N :
By this decision, names written in professional capacity must always be written consistently for
any purpose sanctioned by law as inconsistencies would no longer be treated as a mere
misnomer. We take the view that this decision would apply to all official documentation and is
not limited to receiver managers as in the case above, hence the need for consistency.
Principle: Whether a party can claim solicitor’s fees from the counter party
This is a case in which a party sought to recover the professional fees of its solicitor as a head
of claim at the trial court . The Supreme Court held that there is no basis for the award of a
claim for professional fees allegedly paid by a party in respect of any case and the counter
party cannot be made liable for such fees. The Supreme Court further held that such claim is
unusual and difficult to accept in Nigeria as the issue of solicitor’s fees as a form of damages
is not one that lends itself to support in a court of law.
Suffolk Pet. Services Ltd v Adnan
Mansoor (Nig) Ltd [2019] 2 NWLR (Pt.
1655) 1 (CA)
11
It has been the general practice for parties to include the cost of professional fees as part of
the claims before the court. By this decision, Parties can no longer make a claim for solicitor’s
fees or the cost of litigation and invariably counsel ought to ensure that a proper agreement is
reached on the payment of professional fees prior to the execution of the instruction.
I M P L I C A T I O N :
Principle: the need for the confessional statement of an accused to be taken in the
presence of a legal practitioner and recorded electronically
The Court of Appeal in this case considered the provisions of Sections 15(4) and 17(2) of the
Administration of Criminal Justice Act (ACJA) on the requirement for the confessional
statements of accused persons to be taken in the presence of a legal practitioner and recorded
electronically and the effect of the use of the word “may”. In determining this issue, the Court
held that the ACJA imposes a duty on public functionaries (police officers and other officers of
any law enforcement agency established by an Act of the National Assembly and this includes
the EFCC) to record electronically on retrievable video compact disc or such other audio visual
means, the confessional statements of a suspect and to take statements of suspects in the
presence of the person/s set out in Section 17(2).
The Court further held that the provisions are for the benefit of private citizens who are
suspected of committing crimes so that the enormous powers of the police or other law
enforcement agencies may not be abused by intimidating them or bullying them in the course
of taking their statements. in addition, the provisions are to protect law enforcement agents
from false accusation of coercion in taking statements from suspects. In conclusion, the Court
found that the use of the word "may" in those provisions are mandatory and not permissive.
Nnajiofor v The Federal Republic Of
Nigeria [2019] 2 NWLR (Pt 1655) 157
(CA)
12
This decision finally settles the conditions for the taking of confessional statements of an
accused person by law enforcement agencies and is to the effect that confessional statements
not taken in the presence of a legal practitioner or recorded electronically are inadmissible. It
is important however to note that this decision applies only to cases tried under the ACJA and
does not extend to cases tried under the Administration of Criminal Justice Laws of States.
I M P L I C A T I O N :
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