notable cases 2019 - olaniwun ajayi

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In summary, the Supreme Court held that it would be wrong for the court to allow outdated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.


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.


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.


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


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.


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.


13

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