Month: March 2022

Based on the principle of pacta sunt servanda which means all agreements must be honoured and observed, parties to a contract are meant to timeously fulfil their obligations under the contract.

However, things may not go as planned between the parties consequently resulting in a breach of the contract. A breach of contract means that the party in breach has acted contrary to the terms of the contract either by non-performance or by performing the contract not in accordance with its terms or by a wrongful repudiation of the contract.

The question then becomes which venue can a plaintiff commence action for breach of contract? The principle of law as held in a plethora of cases is that the venue of action could be decided upon three alternatives, namely: 

(a) Where the contract was made 

(b) Where the contract ought to have been performed. 

(c) Where the defendant resides. See University Press Ltd v. I.K. Martins (Nig.) Ltd. (2000) 4 NWLR (Pt. 654) 584 at 598-599.

As such, a plaintiff suing for breach of contract is entitled to take advantage of any of the alternatives and rely on them to choose the venue convenient to him. In Abia State Transport Corporation & Ors v Quorum Consortium LTD (2009) LPELR-SC. 121/2003, the respondent was a business consultant based in Jos. Its services were engaged by the Abia State Government in July, 1992 for the procurement of foreign aid from the Japanese Government to enable the State Government import some vehicles and spare parts for use by the 1st appellant, who was the Abia State Transport Corporation. 

Upon the breach of the contract by the appellant, the respondent instituted an action at the High Court of Plateau State. On appeal, learned counsel for the appellants submitted that an issue of jurisdiction is fundamental to adjudication; that the appellants contend that the High Court of Plateau State, Jos has no jurisdiction to entertain the matter since the contract was entered at Umuahia, Abia State and ought to have been performed in Lagos and not in Jos.

In resolving the issue, the Court per Onnoghen CJN (as he then was) started by saying that jurisdiction is determined by the nature of the plaintiff’s claim before the court. And based on paragraph 5 of the supporting affidavit sworn by the plaintiff, the contract was entered into in Jos. The court then held that the trial court had the jurisdiction to hear and determine the suit.

Furthermore, inasmuch as the law permits a plaintiff to choose any of the above three alternatives, a plaintiff must be properly guarded in his choice. And this is where it gets interesting. While alternatives A and B  may be straightforward, alternative C is somehow complicated for plaintiffs especially when the alleged breach relates to statutory institutions. For instance,  the legal question is where does a company or higher institution reside? Its headquarters or branches or affiliate institutions?

This question formed the core issue for determination in the celebrated case of Krauss Thompson Organization v University of Calabar.  (2004) LPELR-1715(SC). In that case, the contract was for the supply of books and journals. It is not in dispute that the alleged contract was said to have been made in Calabar and performed also in Calabar. Obviously the University of Calabar which is the defendant is located in Calabar but it has a liaison office in Lagos. The plaintiff relying on Alternative C which is (the Defendant residence), instituted an action at the Lagos State High Court. 

The question is, would that also make Lagos the residence of the said University? In answering this question, the Court held that in respect of a corporate body, like a University, the residence is the location of its central management and control or where the parent body is located and at which the Chief Executive may reside but most certainly works. In the case of a University that will be the Vice-Chancellor’s office or the main campus. See Unit Construction Co. Ltd. v. Bullock (1960) AC 351.

Based on that, the Court held that a liaison office established by the University of Calabar in Lagos for purposes other than the management and control of the University can hardly be regarded as the residence of the said University. As such, the appeal was dismissed and no order was made for costs. 

Thank you for reading. See you next month😍

When Asari Dokunbo, in that popular interview said, “you think say you dey wise abi“, little did we know that such a comical statement also applies to legal transactions. More often than not, some Nigerians tend to outsmart each other by selling or transferring the right in a property to a third party when such a matter is still before the Court. To avoid situations like this, the doctrine of Lis Pendens came into effect. 

Lis pendis is derived from two Latin words. Lis which means suit and Pendens which means continuing. Put together, the doctrine means a pending or continuing lawsuit. The principle of Lis Pendens is derived from the Latin Maxim lis pendente lite nihil innovetur which means nothing should change during the pendency of an action. 

The doctrine, as a matter of policy, precludes a plaintiff from selling land in dispute when he knows that there is a dispute in court over the ownership of the land. The rationale behind this doctrine is to prevent either party to the pending suit to transfer the right in the property to a third party.  It evolved to prevent one party from fraudulently seeking to overreach the decision of a court granting title to the opposing party on the basis that he had divested himself of the title before the decision of the court was reached.

In Trimskay Nigeria LTD v Bankole-Oki, (2015) LPELR-CA/L/739/2011, the Court held that: The doctrine of Lis pendis affects a purchaser, who buys property the subject matter of litigation during the pendency of such litigation, not because the purchaser is caught by the equitable doctrine of notice but because the Law does not allow the Litigant parties, and give them pending the litigation, rights in the property in dispute so as to prejudice the other party.

It is pertinent to state that the doctrine of Lis Pendis applies predominantly in the sale or conveyance of land. This is further given judicial approval in Combined Trade Ltd. v. A.S.T.B. Ltd [1995] 6 NWLR, where the Court held that “the doctrine of lis pendens does not apply to every suit. It applies only to a suit in which the object is to recover or assert title to a specific property which must be real property. The doctrine has no application to personal property.”

As held in Bua v Dauda [2003] 13 NWLR, for a plaintiff to successfully rely on this doctrine, he must prove the following requirements concurrently:

i. Pending suit in respect of the property; 

ii. Action or the lis was in respect of real property; 

iii. Object of the action was to recover or assert title to a specific real property;

iv. Party concerned was aware or ought to be aware of the pending suit.

Also, the doctrine can be seen as an extension to the  ‘caveat emptor’ (buyer beware) rule as the doctrine will operate whether or not the purchaser had notice of such existing legal dispute over the title to the property. In Bua v Duada(Supra), the Court held that: “in the doctrine of lis pendens, the lack of knowledge on the part of the purchaser pendente lite of the pendency of a suit on the property does not matter, but in a case where the purchaser was aware of the action before he bought, his legal title would be affected not by reason of their being lis pendens, but by reason of the purchaser having notice of the claim.”

However, the doctrine does not operate to defeat a title to property that had vested before the commencement of litigation over title to the property, nor does it operate to nullify the sale of property that is the subject matter of litigation. It only operates to make title to property acquired during the pendency of a suit to be subject to the judicial outcome of the suit.

Putting it in a perspective, if Mr. A had sold the land to Mr. C before Mr. B brought an action. This doctrine would not apply. Also, the transaction between Mr. A and C is not void. The purported sale was transferred to Mr. C would only be voidable pending the decision of the Court. 

Hence, if a purchaser chooses to purchase a property, subject of litigation, from one of the litigants during the pendency of the litigation, he does so at his own risk and if it turns out that the person from whom he bought has no title or was adjudged at the end of the pending action not to be the owner, he takes as he finds it. Osidele v Sokunbi (2012) 15 NWLR 477. 

Humans rights are rights that every individual is entitled to irrespective of background, sex, colour, religion, etc. In Nigeria, these rights are well enshrined in sections 33-46 of the Constitution. The Fundamental Rights Enforcement Procedure Rules (hereinafter referred to as FREP Rules) is the principal mechanism of enforcing human rights claims in Nigeria. 

Under the old law of the 1979 FREP Rules, the principle of law was that only the aggrieved party whose right has been violated or is likely to be violated can maintain an action for the enforcement of his human rights. As such, this rule resulted in substantial justice being undermined by legal technicalities and was highly detrimental to public interest litigation.

To ameliorate the situation, Lord Kutigi, the then Chief Judge of Nigeria, acting on the power conferred on him by Section 46(3) of the 1999 Constitution made the 2009 FREP Rules. One of the progressive provisions of this new law is that it encourages public interest litigation. In other words, it widens the scope of people who can maintain an action for human rights violations. 

Under Public Interest Litigation, it is not necessary that the Applicant has suffered some injuries of his own or has had a personal grievance to litigate. As such, third parties like NGOs, can maintain an action for an aggrieved party.

The preamble of the FREP Rules 2009 states that an applicant may include any of the following- 

(i) Anyone acting in his own interest 

(ii) Anyone acting on behalf of another person

(iii) Anyone acting as a member of, or in the interest of a group or class of person. Anyone acting in the public interest and Association acting in the interest of its members or other individuals or groups.

Having laid the foundation, the legal question then is, can the constitutional right to life of a dead person be enforced by his dependents? The courts have in a plethora of cases held in affirmative.

In Shobayo v COP Lagos State, (Suit No.ID/760m/2008), the applicant who was the wife of the deceased succeeded in an action brought against the torture, detention, and unlawful killing of her husband by some police officers. The Court gave an elaborate dictum thus:  “Insisting that only the citizen subject of an infringement can approach the court when such a right is violated would create an absurdity. This would imply the non-realisation of a fundamental right expressly created by the Constitution. This is more so in relation to the right to life when already contravened, for in this case, the citizen victim of the deprivation would have been dead. Restricting redress for violation of the fundamental right to life is antithetical to the letters of the Constitution and to avoid this anomaly, the next of kin of such deceased citizens must be permitted to enforce the right so allegedly deprived. The depositions before the Court indicate that the Applicant was the wife and next of kin of the deceased, who reportedly died in custody of the Respondent. Denying her the right to maintain the action would create a situation never contemplated by the framers of the Constitution, as an unenforceable right would thus have been created. The Applicant without contradiction was the wife of the deceased, a relationship not too distant to fathom. That she will be affected by the deprivation of life of her husband goes without saying. The wife of a deceased whose right was supposedly violated would naturally be affected by the violation and comes within the purview of persons affected by the infraction who, pursuant to Section 46(1) of the Constitution, approach the Court for redress.”

Orjieh V. The Nigerian Army & Ors is another case, where the principle that the constitutional right of a dead person could be enforced, was also reaffirmed. In that case, the Applicant prayed the Federal High Court for a declaration inter alia that the fatal shooting and killing of her husband by a soldier, was a gross violation of the deceased fundamental rights to life and dignity of his human person “contrary to Sections 33 (1) and 34(1) (a) of the 1999 Constitution and Articles 4 and 5 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, LFN 2004, and therefore, unconstitutional and illegal”. The Court entered judgment in favour of the Applicant and awarded her N300million as general and/or exemplary damages/compensation for the breach of her deceased husband’s Fundamental Right to life and dignity of his person.

Other judicial decisions that reiterated this principle are Omonyahuy v IGP &Ors (2015) LPELR-CA/L/493/13 and a 2022 case of NSCDC, Benue State Command & Anor v Samuel (2022) LPELR-56933(CA). From these cases, the established patterns seem to be that these unlawful deaths resulted from the hands of law enforcement officers.

Nevertheless, it is pertinent to state that in order to sustain an action for the enforcement of Fundamental Rights, the main or principal claim in an applicant’s process must be hinged on breach of any of the Fundamental Right as guaranteed by the 1999 Constitution. It must not be an ancillary claim else such action will be deemed as being outside the scope of the Fundamental Right proceedings and therefore incompetent as held in WAEC VS AKINKUNMI (2008) 9 NWLR (PT 1091) 151; TUKUR VS GOVERNMENT OF TARABA STATE (1997) 6 NWLR (PT.510) 549.

In conclusion, the change brought by the 2009 FREP Rules is a progressive one and reflects the modern trends in human rights actions. In addition, the kind of hooge monetary compensation awarded by the Court to the dependents is also commendable to cushion the absence of the deceased. Relying on the old FREP rules would have worked hardship on every dependent who would be left with no compensation save from the criminal action instituted by the state which itself is not a personal remedy.

Thank you for reading. See you next week.