Jurisprudence

• Pages: 1016-1037

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JURISPRUDENCE.

A LAW YET TO BE IN EXISTENCE.

Can a law yet to be in existence have effect on rights and liabilities of parties? “A law yet

to be in existence cannot have effect on rights and/liabilities existing prior to its

creation/commencement.” – PerOnnoghen, J.S.C., in H.D.P. v. ObiSuit No. S.C. 280/2011;

(2011) 18 N.W.L.R. (Pt. 1278) 80 at 99.

ACT PERMITTED BY LAW.

Can a person wronged by an act permitted by law which is constitutional complain? “It

is not open to a party to complain that he is wronged by an act, the doing of which the law

permitted. Nothing lawful could be held illegal or unconstitutional. The seizure of the cars of

the respondent is recognized under the Torts Law of Anambra State 1986, an action for breach

of their fundamental rights cannot avail the respondents in the circumstance of this case. They

have to seek remedy for their wrong in the High Court of Anambra State under the State

Laws.Sokoto Local Govt. v. Amale (2001) 8N.W.L.R. (Pt. 714) 244.” – PerAdekeye, J.C.A.,

in N.D.I.C. v. O’silvawax Intl. Ltd. Suit No. CA/E/126/2001; (2006) 7 N.W.L.R. (Pt. 980) 588

at 613 - 614.

Effect of what is permitted by law. “It is trite and common sensical that what is expressly

permitted by law cannot, by any stretch of imagination, be illegal, unlawful or invalid.” – Per

Eko, J.C.A., in S.C.C. (Nig) Ltd. v. AnyaSuit No. CA/A/281M/2008; (2012) 9 N.W.L.R. (Pt.

1305) 213 at 225.

ADVERSARY SYSTEM OF ADJUDICATION.

Duty on Court in adversary system of adjudication. “Where a trial Judge does allthat he is

required to do by law, credit, rather than blame should go to him. It is worthy of note that one

of the important planks in the Nigerian adversary system of adjudication is that a trial Judge

tenaciously acts as an independent umpire, standing majestically at the center of litigation

dangling the balance of justice evenly between the parties without fear, favour, affection or ill-

will. The moment the Judge tends to move away in favour of one of the parties by rendering

the slightest assistance, he then renders himself freely to attack of bias or likelihood of bias.

Okeke v.Nwokoye (1999) 13N.W.L.R. (Pt. 635) 495. I am satisfied that the findings of facts

made by the learned trial Judge were based on credible evidence before his Court and not based

on speculation. I find it difficult to tamper with his findings.” – PerI.T. Muhammad, J.C.A.,

in Sakare v. Bello Suit No. CA/J/224/98; (2003) 17 N.W.L.R. (Pt. 848) 154 at 172.

Duty on Judge in our adversarial system. “Indeed in Akinfe v. The State (1988) 3 N.W.L.R.

(Pt. 85) 729 at 748; Eso, J.S.C., one of our illustrious Judicial Icons, had pontificated on the

role of Judges in the adjudicatory process and admonished that in holding the scale or balance

between parties to a dispute in our adversarial system, the Judge as an impartial arbiter need

not be necessarily mechanistic. He thinks deeply in the course of resolution of the conflict

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between the parties. He may wish to bring out impartially what appears to be obscure in which

case he is not expected to be a zombie or dummy.” – Per Agube, J.C.A., in Adebiyi v. Umar

Suit No. CA/IL/83/2010; (2012) 9 N.W.L.R. (Pt. 1305) 279 at 302.

Fundamental right to fair hearing under the adversarial system of jurisprudence and

effect of breach thereof. “It is trite law that a Court is obliged to evaluate the oral and

documentary evidence, and as in this case, also the affidavit evidence placed before it before

any meaningful findings can be embarked upon by it. Further still, and under our adversarial

system of jurisprudence, it is a pillar of the rule of natural justice that any person before a Court

of law must have his civil rights and obligations decided by an impartial adjudicator ensuring

fair play, justice and equity as enshrined in section 33(1) ofthe 1979 Constitution (as amended).

In the instant appeal, there had been with due respect a fundamental failure by the learned trial

Judge to demonstrate a dissipation of the issues properly raised and canvassed before her as

required by law. It is the error which therefore led to her refusal to discharge the orders of

marevainjunction granted ex-parte, which same was expressed to last until the final

determination of the suit. In the circumstance, and as rightly submitted by the appellant's

counsel, it cannot in my humble opinion be said that the defendant has had a fair hearing of its

case before the lower Court. I hold that issue No. 5 is also resolved in favour of the appellant.

Briefly, and taken for granted that the respondent succeeds on its preliminary objection in

respect of grounds 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the grounds of appeal, he had however

conceded to the competence of issue No. 2 and the ground of appeal formulated there from on

the concept of fair hearing. By its very nature and the principles of our constitutional provisions

it is so fundamental that its mere contravention vitiatesthe entire proceeding amounting to a

nullity. In other words even on the said issue alone same is sufficient to allow the entire appeal.”

– PerOgunbiyi, J.C.A., in E.S. & C.S. Ltd. v. N.M.B. Ltd. Suit No. CA/L/268/97; (2005) 7

N.W.L.R. (Pt. 924) 215 at 271.

COMMON LAW AND STATUTE.

Is the common law principle of “Rex non potest peccare” – “the king does no wrong” still

extant in Nigeria? (1) “Now having considered the submissions of the counsel I wish to state

that the general common law position was that in order to protect the states certain pieces of

legislation were necessary. The trend that was vogue then was that no country allowed

execution of judgments against the State. It was the law then also that the State could not be

allowed to be sued in tort. The king can do no wrong.Theprinciple of“rex non potest

peccare”was well known and freely digested and applied. Courts were then regarded as Kings

Courts. Naturally one cannot expect judgments obtained by the individual servants to be

enforced against the King in his own Court. Clearly the crown enjoys immunity from legal

action and could not be impleaded in its own Court for the tortious acts of its servants. In 1958

the said principle, the State could do no wrong was fully made part of the law of this Country

by virtue of section 45(1) of the Interpretation Act (Cap. 89) Laws of the Federation and Lagos,

1958. That principle, surprisingly was still the law in Nigeria even though it was since

abolished in England by promulgation of the Crown Proceedings Act, 1947. This principle of

State Immunity from tortious liabilitywas further affirmed to be part of this country’s law by