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14 Nov 2018

November 14, 2018

Summary Judgment



A summary judgement is the one entered in favour of the plaintiff or claimant summarily without going through a full trial that is hearing of evidence and written address by counsel. The judgement is based on the writ of summons, the statement of claim and sometimes statement of defence. In some circumstances there may be no pleadings, but just an affidavit by the plaintiff and a counter affidavit by the defendant.

The Judge may on application of the Plaintiff or Claimant at the pre-trial conference or at any other stage of the proceedings give a judgment and such judgment becomes final judgment and can only be set aside on appeal. This is because such judgment is given on the merit for want of defence by the Defendant. Summary judgment is resorted to in circumstances where it is obvious or at least, it appears to the Plaintiff that the Defendant has no defence to the action. This is the distinguishing factor between summary judgment and default judgment which can be set aside by the same court that gave the judgment because it was given in default not necessarily for want of defence. Default judgment applies where the Defendant has failed, neglected and or refused to either enter appearance or file his defence.

There are various types of summary judgments under the rules of Nigerian courts. There is summary judgment based on admission of facts, summary judgment on application of accounts, summary judgment under Order 11 of the Lagos, Enugu and Rivers States’ High Court Rules and summary judgment under the undefended list procedure. A consent judgment is also a form of summary judgment but it differs on the ground that it is agreed on by the parties without adjudication by the court.

Undefended List Procedure (Order 21 of Abuja Rules)
The term “Undefended list” is used under the Abuja High Court (Civil Procedure) Rules. It is one and the same procedure with Summary judgment. Under Order 21 of the Abuja Rules, the undefended list procedure is used only for the recovery of debts and liquidated money demand. The Plaintiff shall at the time of applying for the issuance of the writ of summons, accompany the writ with an affidavit disclosing the fact on which the claim is based and also stating that in his belief, there is no defence to the claim. If the court is satisfied that there are good grounds for his believing so, the court shall enter the suit for hearing in what is called the “undefended list” and mark the writ of summons accordingly. Then, a date shall be fixed for the hearing of the suit. The Rules give the responsibility of being satisfied with the affidavit and entering the suit in the undefended list to the “court”. The word “court”, when used in Rules of courts or in Statutes in regard to functions to be performed usually refers to the Judge or Judges who sit in a court and not the Registrar. The 2004 Abuja Rules actually used the word “Judge” in place of “Court”. This settles any controversy that may have arisen there from.

However, controversy rages as to the mode of applying for the writ to be marked and entered on the “undefended list”. In some jurisdictions, counsel file motion ex parte praying the court to enter and mark the writ “undefended list” while in some others, counsel merely files the writ along with the affidavit, stating the grounds upon which the claim is based. The writ is then marked and entered in the undefended list.

Notice of Intention to Defend
Upon service of the writ of summons and affidavit to the Defendant, if he has a defence to the action; he shall file a notice in writing of his intention to defend the action together with an affidavit disclosing a defence on merit. The above documents shall be filed not less than five days before the date fixed for hearing. However, in practice, the court may grant an extension of time within which to defend upon good cause shown.
Where a Defence is Disclosed
If the court is satisfied that a defence on the merit has been disclosed in the affidavit, the Defendant may be granted leave to defend the action upon such terms as the court may think just. The action shall then be removed from the undefended list to the general cause list. The court may then order pleadings to be filed by the parties or proceed to hear the matter upon affidavits of the parties.
Where there is conflict in the affidavit of both parties, the court must enter the suit on the general cause list. The case would have to be heard in the ordinary way with or without pleadings. It should be noted that where the court transfers the case to the general cause list i.e. grant leave to the Defendant to defend the suit, the Plaintiff cannot appeal against the leave to defend. This is because there is no right of appeal against an order of the High Court granting leave to defend an action.

Judgment in Undefended List
If the Defendant fails to file a notice of intention to defend accompanied with an affidavit disclosing a defence on the merit or the court refuses to grant leave to defend the action, the suit shall be heard as an undefended suit and judgment be entered in favour of the Plaintiff without calling upon him to give oral evidence in proof of his case. Judgment given under the undefended list is a judgment on the merit and accordingly it is a final judgment and not a default judgment. Therefore, it cannot be set aside by the same court that delivered it except on grounds of fraud. Note however that when a suit entered on the undefended list comes to court for the first time, it is for hearing and not for mention.
The summary judgment procedure is available to a Claimant who believes that the Defendant has no defence to his claim. The belief must be honest and not frivolous, hence; the Claimant is required to depose to an affidavit stating the grounds of such belief. In the same vein, for the matter to be transferred to the general cause list, the affidavit of the Defendant must answer the claim and disclose a defence to it on the merit. In other words, a general denial of the claim or a general statement that the “Defendant has a good defence to the claim” is not sufficient for this purpose. Where there is conflict in both affidavits, the suit must be entered on the general cause list. In other words, both the Claimant and the Defendant have the duty to prove their claims and defence to the satisfaction of the court and the court must exercise its discretion judicially and judiciously in the determination of the case.
Summary Judgments under Order 11 (Lagos and Rivers States)
This procedure is used where the Claimant believes that there is no defence to his claim. It may also be used where it will amount to a delay to allow the Defendant to defend the action or where the facts are straight forward and uncontested by the Defendant. At the time of filing, the Claimant shall accompany his writ of summons with the following:
a)      Statement of claim
b)      The exhibit to be relied on at the trial; and
c)       The depositions of his witnesses.
In addition to the above documents, the Claimant shall also file an application for summary judgment, supported by an affidavit stating the grounds for his belief that there is no defence to his claim. Furthermore, he shall file a written brief i.e. arguments in support of the application.

Although the Rules of Court are silent on the mode of bringing the application for summary judgment before the court; however, it is suggested that it should be by motion on notice given that all applications to the court except otherwise required, shall be by way of motion supported by affidavit.

Where the Defendant Intends to Defend
If the Defendant who is served with the processes has a defence to the claim and intends to defend same, he must do so by filing the following documents within the time stipulated for defence:

a)      Statement of defence
b)      Deposition of his witnesses
c)       Exhibits to be relied on; and

A written brief in reply or opposition to the application for summary judgment
This means that the Defendant is no longer required to file a counter affidavit as was the position under the 1994 Lagos Rules or Order 10 of the 1972 Lagos Rules. All he needs to do is file his statement of defence along with the aforementioned documents within the time stipulated for defence which is 42 days from the day of service of originating process and accompanying documents. The Defendants must also file a reply brief to the one filed in support of the application. Note however, that his statement of defence must disclose a valid prima facie defence on the merit. Where the statement of defence discloses no reasonable defence to the claim, the Claimant shall be ordinarily entitled to summary judgement. That is to say; a statement of defence that discloses no answer to the claim under Order 11 will entitle the Claimant to judgement under the Order.

Where a Defence is disclosed
On the day of hearing of the application, the Judge shall look at the statement of defence and if it appears to him that the Defendant has a good defence, he shall grant the Defendant leave to defend in which case, the matter will be entered in the general cause list to be tried fully.

Where no Defence is disclosed
If it appears to the judge that no good defence has been disclosed by the Defendant, he may enter judgement in favour of the Claimant. As discussed earlier, such judgement is a final judgement having been delivered on the merit; it can only be set aside on appeal. Where however, the Defendant fails or neglects to comply with the requirements of the Rules, like failing to file his defence and written brief for instance, the judgement entered thereon would be a default judgement and may be set aside where good cause is shown by the Defendant. It should be noted that the Defendant may disclose a good defence to only a part of the claim. In such circumstances, the Judge may enter judgement in respect of the part to which no defence has been disclosed and grant leave to defend that part to which a defence has been disclosed. It is also noteworthy that where there is more than one Defendant, the Judge may enter judgement against those Defendants who do not disclose a defence to the claim, but shall grant leave to those who disclose a defence. Parties are at liberty to advance oral submissions in elucidation of their written briefs.

Summary Judgment Will Not  be Granted When Defence Raises Triable Issues
For instance in the case of Beloxxi Industries Ltd, Obi Ezeude (defendants/appellants) AND Hwa Tai Industries  (claimant/respondent)
The learned trial judge in the circumstance of this case and as rightly submitted by the learned appellants’ counsel, did err in law in entering summary judgement on an amount, which is being contested and/or disputed by the defendant/appellants. In other words, the learned trial judge should have declined entering summary judgement; this is premised on the finding that triable issue had been raised in defence of the suit by the defendants/appellants therein.
So held the Court of Appeal Holden at Lagos, Nigeria, in a unanimous leading judgement delivered by his Lordship C.B. Ogunbiyi (JCA), J.I Okoro, M.A. Danjuma, (JCA) concurring while allowing the appellant’s appeal.


SOURCE
http://barristerragano.blogspot.com.ng/2013/12/summary-judgements-in-nigeria.html
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November 14, 2018

Interlocutory Applications



The legal term ‘interlocutory’ can refer to an order, sentence, decree, or judgment, given in an intermediate stage between the commencement and termination of a cause of action, used to provide a temporary or provisional decision on an issue before a law court. Generally, interlocutory applications are those made in the course of pending proceedings. That is, they are applications that are made to court while an action is pending in court and may be made at any stage of an action. (Order 26 Rule 1 Abuja High Court Rules (HCR) 2009). In Smith v. Cowell (1881) 6 QBD 75, the English Court, while explaining the nature of interlocutory order which is a natural consequence of an interlocutory application, held that “an interlocutory order means any order other than the final judgment in an action. It does not mean an order between the writ and the final judgment. It is an order available both before and after judgment in court”.
These proceedings are designed to assist the parties pursue their cases and also ensure the speedy resolution of matters. Once an action has been commenced, all subsequent applications are referred to as interlocutory applications. Interlocutory applications come by way of written application but can be made orally in certain cases. However, where the application is in writing, the following documents are required:

1. Motion paper;
2. Affidavit in support of the motion;
3. Exhibits (if necessary); and
4. Written address in support of application.

The various interlocutory applications are explained below:
MOTIONS

A motion is an application, usually written, made to the court for the grant of an order in terms of the prayers sought in the application. A motion may be brought by either party at any stage of the proceedings. The existence of a substantive cause or matter is an essential requirement for making an application by motion. The hearing of any motion may, from time to time, be adjourned upon such terms as the court may deem fit. There are of two types of motions namely motion ex parte and motion on notice. (Order 39(3) Lagos High Court Rules.)

• Motion Ex Parte

The word ex parte means “by or for one party”, “done for, or on behalf, or on the application of one party only”. Thus, it is where the interests of the other party will not be prejudiced if he is not put on notice, that is, it is an application by one party in the absence of the other.
It is used where, from the nature of the application, there ought not to be any opposition to it, such as where the prayers sought affect the interest of the applicant only or where at the stage the application is made, the other party cannot be put on notice. An example is application for leave to serve processes by substituted means.

Generally, a motion ex parte has a life span of a few days or as may be permitted by the Rules of Court. It is usually granted to last until a named date or in anticipation of a motion on notice which is to be heard on the merit. Under the Abuja Rules, a party affected by an order made ex parte may apply by motion within 7 days after service of the Order or within any further time that may be allowed by the court to apply to set it aside (Order 26 Rule 11 Abuja HCR). But such an order shall last for only 14 days after the affected party has applied for it to be varied or discharged or for a further 14 days after such an application to vary or discharge the order has been concluded. Where the application to vary or discharge the ex parte order is not heard within 14 days of it’s being filed, the ex parte order shall lapse automatically (Order 26 Rule 12 Abuja HCR 2009). Under the Lagos Rules, there is no general provision for the lifespan of ex parte orders. Furthermore, as it relates to an order of injunction which is made pursuant to an ex parte application, it shall lapse after 7 days but can be extended for a further period of 7 days where the application for extension is brought before the order abates (Order 39 Rule 3(3) and (4) Lagos High Court Rules).
• Motion On Notice

Unless a Statute or Rule of Court permits, every motion shall be on notice (Order 26 Rule 7(1) Abuja HCR 2009). Unlike ex parte motion, this puts the other party on notice of the application thereby giving him an opportunity to respond to the application. By being put on notice, the adverse party is given the opportunity to contest the grant or otherwise of the application by the court.

It is required that motions together with all affidavits be served on the other party (Order 26 Rule 4 Abuja HCR, 2009). It should be noted that Order 26 Rule 4 Abuja HCR, 2009 states that a written address shall be served also. It may be served by any person, notwithstanding that he is not an officer of the court and without the leave of the court (Order 26 Rule 19 Abuja, HCR. 2009). Where a party is represented by Counsel, service on the Counsel is deemed as good service (Order 26 Rule 20 Abuja HCR, 2009). There should be at least 2 clear days between the service of the notice of motion and the day named in the notice for the hearing of the motion unless the court gives special leave to the contrary (Order 26 Rule 18 Abuja, HCR 2009). Under the Lagos Rules, according to Order 39 Rule 1 of the Lagos High Court Rules, it is mandatory that every motion should be served within 5 days of its filing. Rule 2 of the same Order also requires that a written address should be filed.
INJUNCTIONS

An injunction is as equitable remedy granted by the court compelling a party to do or to refrain from doing an act. The order is mandatory or positive where it compels a party to do an act; it is prohibitory or restive where it prohibits the doing of an act. It is defined as a preservative relief designed to maintain the status quo between the parties pending the final determination of the suit or pending a certain date. Any party may make an application for the grant of an injunction to an action once an action is commenced, before or after trial and even at the end of the proceedings before judgment, whether or not a claim for injunction was included in the party’s original action (Order 28 Rule 1(1) Abuja HCR, 2009). There are several kinds of injunctions, the most commonly used ones are discussed below:

• Interim injunction

This is an injunction granted to an applicant seeking a temporary order of court to restrain another person from doing an act or series of acts or to command a person to undo an act or series of acts towards the applicant or towards the subject-matter of a suit pending the happening of an event. Generally, applications for injunctions are to be made on notice and only in cases of urgency are they to be made ex parte (Order 26 Rule 8 Abuja HCR 2009).

• Interlocutory injunction

This is granted pending the determination of the suit or unless discharged by the court. It is applied for through a motion on notice only after a suit has been properly commenced; and if the order is granted, it will last till the determination of the case. Either party may apply for it although the application is generally made by a plaintiff. A defendant can only be granted the relief against the plaintiff only if the injunction relates to a relief claimed by the plaintiff.

• Mereva injunction

This is a kind of interlocutory injunction which a creditor suing for a debt due and owed can obtain against a defendant who is not within the country but has assets in it. He seeks to restrain that defendant from removing the assets from the country or disposing of them within the country, pending the trial of the action. The objective is to ensure that the assets would be available to satisfy, if necessary by means of execution being levied on them, any judgment the plaintiff may obtain in the action against the defendant based outside the country.

• Anton Piller order

An Anton Piller Order is an interlocutory injunction which requires a defendant or respondent to allow certain persons enter his premises to search for documents and movable articles as are specified in the court order and to permit such documents or articles to be taken away. It is an order given by an ex parte application. It is employed usually in cases of possible copyright violations and its primary objective is to prevent destruction or removal of evidence.

INTERPLEADER

Where a person is under liability in respect of a debt or money or goods and he accepts to be sued in respect of same by two or more persons making adverse claim to it or a claim is made to money, goods or property taken and intended to be taken by a Sheriff in furtherance of executing a court judgment by a person other than the judgment debtor, such a person under liability or the Sheriff, as the case may be, may apply to the court for relief by way of interpleader summons (Order 43 Rule 1 Lagos HCR; Order 28 Rule 1 Kano HCR; and Order 33 Rule 1 Abuja HCR, 2009). By this procedure an Interpleader protects himself by getting the rival claimants to contest the title to the goods, property or money before the courts. There are two types of Interpleader: the Stakeholder interpleader and the Sheriff interpleader.

• Stakeholder interpleader

This is where a person who is under a liability for a debt over which he has no personal interest and which is subject to competing claims and over which he is likely to be sued or has already sued will seek relief by taking out an interpleader summons. In such a dilemma, if he pays to the wrong person, he may be compelled to pay twice. The person seeking the relief must be under a liability for a liquidated debt and there are adverse claims in respect therefore. The interpleader procedure allows him to call on the courts to ask the adverse claimant to establish their claim. For the applicant to succeed in such application, he must establish by affidavit, evidence that:
a) He claims no interest in the subject matter in dispute other than for charges or costs;
b) He does not act in collusion with any of the claimants; and
c) He is ready to bring to court or to pay or to dispose of the property as the court may direct (Order 43 Rule 3 Lagos HCR and Order 33 Rule 4 Abuja HCR, 2009).

• Sherriff interpleader

This arises where a third party claims that the property on which execution is levied or about to be levied belongs to him and not to the judgment debtor. By this procedure, the third party and the judgment creditor are called upon to substantiate their respective claims to enable the court decide whether to release the property from attachment or proceed with the sale.
The essence of this proceeding is to determine whether the property belongs to the judgment debtor or not.

Essentially, interlocutory applications are applications for orders made to court that seek to prevent a party to the case from suffering injustice because the essence/subject matter of the case has been destroyed or becomes non-existent. These orders basically ensure that not only is justice done, but it is seen to be done by preserving the status quo until the matter between the parties to a suit is resolved by the court.
SOURCE
http://www.thelawyerschronicle.com/interlocutory-applications/



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November 14, 2018

Recovery of Premises



Every day with the increase in population, there is a concurrent need for houses to accommodate this rising population. As a result, there has always been the need for individuals, corporations and governments to build and lease or rent houses to fill this void. These houses could either be for residential or commercial purposes. This has brought the need to regulate the relationship between landlords and tenants so as to avoid arbitrary increments in rents, wrongful eviction and illegal holding over of premises. The procedure for recovery of premises is largely regulated by statutes. Accordingly, a landlord who seeks to recover his premises from a tenant must strictly comply with the provisions of these statutes. In other words, the slightest deviation from the requirements of the law will frustrate an attempt to recover possession of premises no matter how troublesome and terrible such a tenant may be.
Every State in Nigeria now has its own law on recovery of premises. Some of these laws include:
·         Recovery of Premises Act. Cap 544 Laws of the Federation of Nigeria (Abuja) 1990
·         Rent Control & Recovery of Residential Premises Law, Vol. 7, Laws of Lagos State, 2003
·         Lagos Tenancy Law, 2011
Section 2, Recovery of Premises Act Cap 544 Laws of the Federation of Nigeria (Abuja) 1990 states that a landlord is a person entitled to immediate reversion of the premises and includes the attorney or agent of any such landlord or any person receiving (whether in his own right or as an attorney or agent) any rent from any person for the occupation of any accommodation in respect of which he claims a right to receive same. This section further states that a tenant includes any person occupying premises, whether on payment of rent or otherwise, but does not include a person occupying premises under a bona fide claim to be the owner of the premises. The Rent Control and Recovery of Residential Premises Law, Vol. 7, Laws of Lagos State of Lagos State of Nigeria 2003 expressly include a sub-tenant and service tenants (homes occupied by virtue of employment) for the purpose of recovery premises.
The Recovery of Premises Laws have been enacted in various States principally to provide for procedures a landlord must adopt to recover possession. Such procedures are primarily to protect the interest of the tenant against that of the landlord. Coussey, J.C.A. observed in the case of Okedare .v. Hamid (1955) 15 WACA 17 at 19, that:
The main object of the Recovery of Premises Law was to place limitations on the common law rights of a landlord with the object of regulating the recovery of and restraining summary eviction from occupied premises.
At common law, the landlord on the effluxion of time or expiration of a valid notice to quit, may proceed to court for possession. However, the Recovery of Premises Laws requires an additional 7 day notice of owner’s intention to apply to court to recover possession to be given to the tenant. The landlord can only take out a writ after the expiration of the 7 days. The tenant therefore becomes a statutory tenant and cannot be evicted by force, but by a lawful court order.
For unlawful eviction, the landlord can be sued and made liable for damages. In Ihenacho .v. Uzochukwu (1997) 1 SCNJ 117 at 284, the Supreme Court of Nigeria held that resort to self-help by the landlord to evict a tenant who is in lawful occupation is not within the purview of the provisions of the Recovery of Premises Law and that such a landlord renders himself liable to the tenant in trespass. But at common law, the tenant does not have that right; he is treated as a tenant at sufferance or a trespasser.
Procedure for Recovery of Premises
Before the procedure laid down in the Recovery of Premises Laws can be invoked, two factual conditions must be satisfied:
1.       There must be in existence some “premises” as defined by law. Section 36 of the Rent Control and Recovery of Residential Premises Law of Lagos State, 2003 defines premises to include, “a house or building or any part thereof together with its gardens or other appurtenances”
2.       The landlord-tenant relationship must be established. However, in Ihenacho’s case, it was held that the landlord must still comply with the procedure laid down in the law even if there is no landlord-tenant relationship; provided the person sought to be evicted is in lawful occupation.

Notice to Quit
A landlord seeking to recover possession of his premises before the expiration of the tenancy (effluxion of time) is obliged to issue a notice to quit. The notice stipulates a period within which the tenant must quit possession of the premises. The period of notice given will usually depend on the agreement between the parties. In the absence of any agreement, the period of notice will be determined by statute.  For instance, Section 8 of Recovery of Premises Act, Cap 544, LFN (Abuja) 1990, provides that in the absence of express agreement to the contrary, the period of notice to be given by either party shall be as follows:
1.       Tenancy at will or weekly tenancy – a week’s notice
2.       Monthly tenancy- a month’s notice
3.       Quarterly tenancy- a quarter’s notice
4.       Yearly tenancy- half a year’s notice.
Tenancy exceeding one year is regarded as a yearly tenancy and 6 months notice is sufficient. The nature of tenancy shall in the absence of any evidence to the contrary be determined by reference to the mode of payment and demand for rents.
The notice to quit must be issued by the landlord himself or by an authorized agent or Solicitor. Such agent or Solicitor must be authorized in writing. The following may be regarded as essentials of a valid notice to quit:
·         The name of the landlord or his agent
·         The name of the tenant
·         The nature of the tenancy.
·         The date the tenant should quit and deliver up possession. This may be an exact date or some ascertainable date from the date of service of the notice. It should be noted that it is the date of service and not the date on the notice that is material. Thus, the statutory length of the notice must be complete between service and the expected date of expiry. Also, where the situation requires a month’s notice, it must be one calendar month and if it is a yearly tenancy, it must be six calendar months and no less.

Notice of owner’s Intention to Recover Possession
This notice is also known as 7 days notice. On the expiration of the notice to quit or the determination of the interest of the tenant, if the tenant or any person actually in possession of the premises or any part thereof neglects or refuses to quit and deliver up possession of the premises or any part thereof, the landlord or his agent may cause the written notice of the owner’s intention to proceed to recover possession to be served on the tenant. The date must not be less than 7 days- Section 13 of the Rent Control and Recovery of Residential Premises Law of Lagos State, 2003. In calculating the 7 days, it must be 7 clear days; the day of service must be excluded but the day of expiry must be included. Take note that the notice of intention cannot be issued and served before the expiry of the notice to quit or effluxion of time. Hence, the reference to the landlord as owner underscores the determination of the tenancy and the cessation of a landlord-tenant relationship.
Writ or Plaint against Tenant or Person Refusing to Deliver up Possession
On the expiration of the time stated in the notice of intention to apply to recover possession, if the tenant or any person in possession of the premises still fails, refuses or neglects to give up possession, then the landlord or his agent may apply to the appropriate court for the issuance of a writ or enter a plaint against the tenant or such other person neglecting to refusing to deliver up possession- Section 16(1) of Rent Control Law of Lagos and S. 10 Recovery of Premises Act. Abuja.
The court or tribunal to which the landlord may apply for the writ is one that has jurisdiction in the district or division where the premises is lying and situated. In jurisdictions like Lagos and Abuja, Magistrate Courts have jurisdiction to sit as tribunals.
Facts that must be stated in the Writ or Plaint:
1.       The fact that the Plaintiff is entitled to possession of the premises in question.
2.       Short but accurate description of the premises including address of same.
3.       The nature of tenancy and the rent payable, if any.
4.       The date of expiration or determination of the tenancy, if by notice.
5.       The fact of service of a notice of intention to apply to recover possession, the date and mode of such service. The duplicate copy of notice of owner’s intention to recover possession is required and should be annexed to the writ or plaint.
6.       The fact that in spite of the service, the tenant still has neglected or refused to give up possession of the said premises.
7.       The claim may comprise of possession, arrears of rents and mesne profits. Arrears of rents are those rents owed by the tenant prior to the determination of the tenancy while mesne profits are monies payable for use and occupation of premises as a result of holding over by the tenant after due determination of the term of tenancy. The amount payable as mesne profits is governed either by the rate paid as rent or by the actual market value of the premises.

Service of Processes
Service of any notice and other processes under the Rent Control and Recovery of Residential Premises Law is to be effected in accordance with the Rules operating in the Magistrate Court. That is; personal service but where personal service is not possible, a copy of the process shall be pasted on some conspicuous part of the premises sought to be recovered and such pasting shall be deemed good service on the Defendant. However, it is advisable to seek leave of court when the writ is to be served through substituted means.
It is worthy to note that where a tenant carried out improvements on the premises and such improvements have not been exhausted before the landlord terminates the term of the tenancy, he is entitled to counter claim for the unexpired value of such improvements. However, such improvements must be done with consent in writing of the landlord.
Except the tenancy expires naturally, a landlord seeking to recover possession of his premises is obliged to follow the procedure discussed above. He cannot force or throw out the tenant. Due process must be followed; otherwise the whole exercise will be a nullity. The period of notice given usually depends on the agreement between the parties, but in the absence of any agreement, the period of notice will be determined by statute.


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13 Nov 2018

November 13, 2018

Election Petition



A petition is a written request signed by many people demanding a specific action from an authority or government. It could also mean a pleading in a civil action by which the plaintiff sets down the cause of action and invokes the court’s jurisdiction. An election petition refers to the procedure for challenging the result of a federal, state or local government election. Section 133 (1) of the Nigerian Electoral Act 2010 underscores the imperative for election tribunals and the procedure for questioning the return of a candidate as duly elected after an election. This Section states as follows:
No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an “election petition”) presented to the competent tribunal or court in accordance with the provisions of the constitution of this Act…
An election petition may be presented by one or more of the following persons:
1.       a candidate at an election
2.       a political party which participated at the election. (See S. 137(1) of the Electoral Act).
The person whose election is complained of shall be the Respondent. Where the petition complains about the conduct of an election, the Electoral Officer, Presiding Officer, Returning Officer or such officer whose conduct is complained of shall be a Respondent and a necessary party to the petition. See Buhari v. Yusuf (2003) 14 NWLR (pt. 841) 446 at 504 where it was held that a candidate who contested the election and lost cannot be made respondent to a petition. See also the case of Bola Ige v. Dr Victor Omololu Olunloyo (1984) 1 SCNLR.
When a petition is raised against an election, there are 4 possible outcomes:
1.       The election is declared void. The result is quashed and a fresh election is held.
2.       The election is held to have been unduly conducted: the original election is quashed and another candidate is declared to have been elected.
3.       The election is upheld and the member returned is found to have been duly elected.
4.       The petition is withdrawn. This may occur when the petitioner fails to attend a hearing or withdraws his his/her petition.
A petition is presented when it is filed in the appropriate court or tribunal prescribed by law. That is, the papers are presented to the Court Registrar, payment of the prescribed fees made and receipts issued. This was as decided in the cases of Ogbolumani v. Okobi 1959 WNLR 11 and Ngoli v. Ndoka & Anor (1960) 5 FSC 90 at 92. The very laws that makes room for periodic elections into 1695 elective public offices in Nigeria, which the Independent National Electoral Commission (INEC) is empowered to conduct, also gives room for Election Petition Tribunals (equivalent of the Nigerian high courts) to handle judicial petitions arising from the conduct of such polls, with a view to determining the authenticity or otherwise of such polls. Such petitions are filed by aggrieved parties. Where no judicial petition is filed at an Election Petition Tribunal within a stipulated time frame, the referenced poll is deemed validly conducted. Matters that are brought before election tribunals are matters that have to do with the conduct of the polls proper. Matters deemed “pre-election matters” such as nomination of candidates, are filed and handled by ordinary High courts, which stretch to the Apex (Supreme) Court. An interesting case in point is the case of Ameachi v. INEC (2008) 5 NWLR Pt. (1080) 227, where the Plaintiff contested his denial to be the proper candidate of the Peoples Democratic Party (PDP). The Supreme Court in upholding his argument declared him winner of the said election since he was supposed to be the lawful candidate of the PDP even though he actually did not contest the election.
The petition must state the grounds on which the election is being challenged and the facts relied on. An election can be challenged on the following grounds:
1.       That the person whose election is questioned was, at the time of the election not qualified to be elected.
2.       That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the electoral law under which the election was held.
3.       That the respondent was at the time of the election not duly elected by majority of lawful votes.
4.       That the petitioner was validly nominated but was unlawfully excluded from the election. Section 138 of the Electoral Act 2010.
The Constitution provides in Section 285(1) that:
“There shall be established for the Federation one or more election tribunals to be known as the National Assembly Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether, any person has been validly elected as a member of the National Assembly; the term of office of any person under this Constitution has ceased;  the seat of a member of the Senate or a member of the House of Representatives has become vacant; and  a question or petition brought before the election tribunal has been properly or improperly brought.”
Sub section (2) also states:
“There shall be established in each State of the Federation one or more Election Tribunals, which shall to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative House.”
For subsection (3) and (4), “The composition of the National Assembly Election Tribunals, Governorship and Legislative Houses Election Tribunals shall be as set out in the Sixth schedule to this Constitution. The quorum of an election tribunal established under this section shall be the Chairman and two other members.
In each case, the Chairman of the tribunal shall be a Judge of a High Court and the four other members shall be appointed from among judges of the High Court, Kadis of a Sharia Court of Appeal, Judges of a Customary Court of Appeal or other members of the judiciary not below the rank of a Chief Magistrate. The various tribunals are to be set up pursuant to Section 285 of the 1999 Constitution, to deal with grievances arising from the Governorship, National Assembly and State Assembly Elections.
Petitions ought to be filed within 21 days after elections and to this effect, Section 133 of 2010 Electoral Act, sheds more light on election petitions. It states that:
“No election and return at an election under this Bill shall be questioned in any manner other than by a petition complaining of an undue election or undue return. The election tribunals shall be constituted not later than 14 days before the election; and when constituted, open their registries for business 7 days before the election. An election petition shall be filed within 21 days after the date of the declaration of results of the elections”.
Presentation of petition must be done within the time prescribed by the electoral law (Section 143 of the Electoral Act). Note that most electoral laws do not normally allow extension of time within which to file a petition. This is because by way of public policy, complaints arising from elections are to be dealt with expeditiously. See the case of Kurrah v. Iyodo (1959) WNLR 20. The petition must state the grounds on which the election is being challenged and the facts relied on.
Section 134 of the 2010 Electoral Act provides the stipulated duration for election petitions. The Act states that:
“An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition. An appeal from a decision of an election tribunal or court shall be heard and disposed of within 90 days from the date of the delivery of judgment of the tribunal,”
A piece by Nwagboso Chris featured on the African Research Review titled “The Challenges of Conducting Credible Elections in Nigeria” succinctly states that the election tribunals are increasingly generating great concern at international, national and local levels. As countries around the world reform their electoral process in order to correct the systemic deformities of their “democratic engines”, Nigeria should follow suit.
The importance of election tribunals in Nigeria’s democratic process cannot be overemphasized. Getting the workings and processes of tribunals is also extremely important. This means that all hands must be on deck to make sure that these tribunals are not only legally functional but that the delivery of justice is unquestionable. It then means that lawyers should desist from bringing frivolous petitions, mischievous claims and counter claims. Judges must also be seen to be transparent and without fear or favor uphold the law. With every passing election, we can only hold our breaths and hope that the election tribunals are well equipped and able to handle the petitions that will inevitably come their way.


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