Category: Court Holdings

Nigerian Cases on Interlocutory Injunction (Rationes)

Nigerian Cases on Interlocutory Injunction

Below are rationes decidendi on Interlocutory Injunction from Nigerian Cases. An interlocutory injunction is a court order preventing a party in a suit from doing certain acts pending the determination of the suit.

Meaning of Interlocutory Injunction

Sabru (Nig.) Ltd. v. Jezco (Nig.) Ltd. (2001) 2 NWLR (Pt. 697) 364

interlocutory injunction means an injunction granted after due contest inter partes. It is an injunction not only ordered after a full contest between the parties but also ordered to last until the determination of the main suit. Applications for interlocutory injunction are properly made on notice to theother side to keep matters in status quo until the determination of the suit.

Purpose of Interlocutory Injunction

FIRST BANK OF NIG. PLC & ANOR VS NDARAKE & SONS (NIG) LTD (2008) Legalpedia (CA) 57117

“The main purpose of an interlocutory injunction is to preserve the res or subject matter of the litigation from destruction pending the determination of the matter, so, where an action sought to be restrained has already been completed, the equitable remedy of interlocutory injunction will no longer be available to an applicant.” – PER THERESA NGOLIKA ORJI-ABADUA JCA

FRANCIS EDET EKPENYONG & ANOR HON. OROK OTU DUKE & 5 ORS. CA (2008) Legalpedia (CA) 10881

“The purpose of an interlocutory injunction is to maintain the status quo pending the determination of the substantive suit. Status quo is the state of affairs existing during the period immediately preceding the issuance of the writ.” – PER JEAN OMOKRI JCA

Application for an Interlocutory Injunction

Ezebilo v. Chinwuba (1997) 7 NWLR (Pt. 511) 108

An applicant for interlocutory injunction must show that his legal right is threatened or abused. This may arise by a threat to or brutalisation of the res which may result in damage, destruction, or abuse of it.

A threatened trespass, for instance, in the case of land is enough to sustain an application for interlocutory injunction. Once the applicant shows an actionable wrong against the res, an order of interlocutory injunction will follow.

Where, however, an applicant is unable to show an actionable wrong or an infringement of a legally enforceable right, the fact that the act of the respondent is injurious to him is not sufficient for the grant of an interlocutory injunction.

ACHEBE v. MBANEFO & ANOR (2017) LPELR-41884(CA)

“The learned trial Judge has to consider whether the action of the party that applied for an interlocutory injunction is frivolous, or there are triable issues in granting or refusing an application for an interlocutory injunction. In Adenuga vs. Odumeru (2003) FWLR (Pt.158) 1288 at page 1304 paragraph “H” to page 1305 paragraphs “A”-“G” to wit: “In an application for an interlocutory injunction, the plaintiff must show an existence of his right which needs to be protected in the interim. He must at the same time satisfy the Court that there is a real question to be tried in the substantive suit: Egbe vs. Onogun (1972) 1 All NLR 95 at 98. This does not require the Court to determine the merit of the plaintiff’s entitlement to the claim.

“But it places on the plaintiff an initial burden. It is the burden of showing that there is a serious question to be tried upon the affidavit evidence (as well with averments in the statement of claim, if any has been filed): See Obeya Memorial Hospital vs. Attorney-General of the Federation (1987) 3 NWLR (Pt.60) 325. It is necessary to emphasize that it is of vital importance for a plaintiff seeking an interlocutory injunction to adduce sufficiently precise factual affidavit evidence to satisfy the Court that his claim for a permanent injunction at the trial is not frivolous; or at any rate, based on the substantive claim, to produce affidavit evidence to satisfy the Court in justification of his application for an interlocutory injunction to maintain the status quo.

“It is only when this has been done that it will become necessary for the Court to proceed further with the application to consider the balance of convenience. Otherwise the application ought to be refused at the point the Court is not so satisfied. This is clear from the observation made by Lord Diplock in American Cyanamid Co. vs. Ethicon Ltd. (1975) 1 All E.R. 504 at 510 as to what should be the approach in considering an application for an interlocutory injunction. He said inter alia: “It is no part of the Court’s function at this stage of the litigation to try to resolve conflicts of evidence of affidavit as to facts on which the claims of either party may ultimately depend not to decide difficult questions of law which call for detailed argument and mature considerations.

“These are matters to be dealt with at the trial… so unless the material available to the Court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the Court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought.”

“It seems to me that even if there had been no cause for me to comment adversely on the complaints laid in the grounds of appeal and the issues set down for determination, this appeal stood no chance of succeeding. The likelihood that a plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial is a factor to be brought into the balance by the Judge in weighing the risks that injustice may result from his deciding the application for an interlocutory injunction one way rather than the other: See NWL Ltd. vs. Woods (1979) 3 All ER 614 at 626.”

“Economic benefits a party has been deriving from the property before the alleged interference or invasion may be considered in granting or refusing an application for interlocutory injunction pending the determination of the rights of the parties. See Adesina vs. Arowolo (2005) FWLR (Pt.245) 1123 at pages 1140 to 1141.” – Per JOSEPH TINE TUR, JCA

CHIEF DANIEL OGBONNAYA & ORS VS ADAPALM NIGERIA LIMITED (1993) Legalpedia (SC) 71537

“In an application for an interlocutory injunction, an applicant should interalia satisfy the court that there is a serious question to be tried at the hearing of the suit and that the facts disclose a reasonable probability that the applicant will be entitled to the relief sought.” PER KUTIGI, J.S.C

Differences among interlocutory, Interim, and ex-parte injunctions

Sabru (Nig.) Ltd. v. Jezco (Nig.) Ltd. (2001) 2 NWLR (Pt. 697) 365

Applications for interlocutory injunction are properly made on notice to the other side to keep matters in status quo until the determination of the suit. Interim injunction, on the other hand, while always showing the tramels of order of injunction made ex-parte are not necessarily coterminous with them. Their main feature which distinguishes them from interlocutory injunction is that they are made to preserve the status quo until a named date or until further order or until an application on notice can be heard.

They are also for cases of real urgency. But unlike ex-parte orders of injunction, they can be made during the hearing of a motion on notice for interlocutory injunction, when, because of the length of the hearing, it is shown that an irretrievable mischief or damage may be occasioned before completion of hearing.

Also, it can be made to avoid such an irretrievable mischief or damage when due to the pressure of the business of the court or through no fault of the applicant it was impossible to hear and determine the application on notice for interlocutory function.

However, what the court does in such a case is not to hear the application for interlocutory injunction ex-parte, behind the back of the respondent, but to make an order which has the effect of preserving the status quo until the application for interlocutory injunction can be heard and determined.

POLARIS BANK LTD v. BELLVIEW AIRLINES LTD & ANOR (2021) LPELR-56258(CA)

“In the seminal case of Kotoye v CBN (supra) at page 78 – 79, Karibi-Whyte, JSC explained: “It is useful to examine the meaning and scope of the words “interlocutory” and “interim” which have been used very freely and often times regarded as interchangeable in applications for injunctions. See Kufeji v. Kogbe (1961) 1 All N.L.R. 113; Iroegbu v. Ugbo (1970-71) 1 E.C.S.L.R. 162.

“An interlocutory application is an application which can be made in the course of a proceeding, and at any stage of a cause or matter, for the purpose of keeping the parties in status quo till the determination of the action – See Obeya Memorial Specialist Hospital v. Attorney-General for the Federation (1987) 3 N.W.L.R. (Pt.60) 325. Ojukwu v. Governor of Lagos State (1986) 3 N. W. L. R. (Pt.26) 39. The word “interim” used also in applications and orders of injunction for maintaining the status quo of parties to a suit means “temporary”, “in the mean time.”

“However, an injunction described as interim falls within the above definition and is an interlocutory injunction because it is an application made in the course of the proceedings. But unlike an interlocutory injunction properly so called, an interim injunction is not. It is an injunction made until a named date or until further order or until an application on notice can be heard. Thus, they bear all the features and trappings of an interlocutory injunction and granted upon the same consideration of equity.” – Per ONYEKACHI AJA OTISI, JCA

See also:

Nigerian Cases about Alibi (Rationes decidendi)

Nigerian Cases about Alibi

Below are some rationes decidendi about Alibi in Nigerian cases. Alibi is a claim of being somewhere else at the time a crime was committed.

Meaning of Alibi

ALHAJI MUSA SANI V. THE STATE (2015) Legalpedia (SC) 51133

“Alibi is a Latin word meaning “Elsewhere”. Where an accused person claims he was somewhere else and could not have been at the scene of crime and could therefore not have committed the crime with which he is charged and gives particulars of his whereabouts at the material time to the Police at the earliest opportunity, the Police has a duty to investigate that claim no matter how unreasonable or stupid the claim or plea may seem.” PER N. S. NGWUTA, J.S.C

How to disprove Alibi

DAVID OMOTOLA V THE STATE (2009) Legalpedia (SC) 19416

One of the ways by which the prosecution may disprove an alibi is to call evidence against it which is cogent, substantial and credible. The fact that an accused has raised an alibi by his evidence or that of his witnesses does not imply that the alibi must be accepted by a court. If the evidence called by the prosecution is credible, strong and compelling, the court may reject the defence of alibi. – Per Oguntade, JSC

When the Defence of Alibi should be raised

Rabiu v. State (2010) 10 NWLR (Pt. 1201) 127

A defence of alibi must be unequivocal and must be raised by an accused at the earliest opportunity during investigation of the allegation against the accused person and not during trial. This will enable the prosecution investigate the truth of the alibi. However, failure of a defence of alibi does not mean the guilt of the accused. In the present case, the defence of alibi was raised during trial by the appellant. The prosecution whose duty it is to disprove the alibi where properly raised, did not have the time or opportunity to investigate the alibi or to adduce evidence in rebuttal of the defence.

Kareem v. State (2021) 17 NWLR (Pt. 1806) 503

An accused person must raise his alibi at the earliest opportunity, preferably in his extra-judicial statement. He must not be allowed to use alibi as trump card to scuttle prosecution. This is to offer the Police an opportunity either to confirm or confute its availability to the accused person. The accused seeking to benefit from such defence of alibi must open up and provide substantial details as to particulars. The defence of alibi would be unavailing where the accused person raised it during the trial.

When Alibi should or should not be investigated

AYUBA v. STATE (2021) LPELR-55745(CA)

“Similarly, in Adebiyi vs State (2016) 1-2 S.C (pt iv) 95, the Supreme Court held: “Alibi means elsewhere. The accused person is saying that at the time the offence for which he is charged was committed, he was somewhere else so he could not have committed the offence. It is a matter within the personal knowledge of the accused. After an accused person is arrested he should raise the defence of alibi (if that is his defence) at the earliest opportunity, usually in his statement to the Police.

An alibi must be very detailed on the exact whereabouts of the accused person. He could refer to persons that the Police can contact to show that his alibi is true. The onus is thus on the accused person to rely on evidence to support his alibi, and the standard of proof required to establish an alibi is on balance of probabilities. Once an accused person raises the defence of alibi, it is the duty of the Police to investigate it to see if it is true. There would be no need to investigate an alibi if there is overwhelming evidence against the accused person. See Osu v. State (2013) 1-2 SC p.37 Ajayi v. State (2013) 2-3 SC (Pt. 1) p.143 Aliyu v. State (2013) 6-7 SC (Pt. iv) p.1 Ozaki v. State (1990) 1 SC p. 109.” Per EBIOWEI TOBI, JCA

Duty of the Police to Investigate Alibi

OROBOSA EYONAOWA v. COMMISSIONER OF POLICE (2014)LCN/7662(CA)

It is trite law that once an accused person raises the defence of alibi at the earliest opportunity as in this case, the onus rests on the Police to investigate the said alibi. The learned trial judge at pg. 60 of the record conceded that the appellant raised the defence of alibi timeously and at the earliest opportunity. per. TOM SHAIBU YAKUBU, J.C.A.

Effect of a successful plea of Alibi

Kareem v. State (2021) 17 NWLR (Pt. 1806) 503 – Supreme Court

A successful plea of alibi results in the acquittal of the defendant. Alibi is a radical, sweeping and far-reaching defence which, where proved, serves to completely exculpate the defendant from the offence charged.

See also:

Nigerian cases on Trespass to Land (Rationes decidendi)

Nigerian cases on Trespass to Land

Below are rationes decidendi from Nigerian cases on or about Trespass to Land. Trespass to Land is intentionally entering into land, remaining on land, placing or projecting any object upon land in possession of another, without lawful justification.

What is trespass to land?

Oriorio v. Osain (2012) 16 NWLR (Pt. 1327) 560

trespass to land is the wrongful and unauthorized invasion of the private property of another. It is trespass to land provided the entry into the land of another by a person is not authorized. trespass to land is rooted in a right to exclusive possession of the land allegedly trespassed. trespass to land is therefore actionable at the instance of a person in possession of the land. Only a person in possession of land at the material time can maintain an action for damages for trespass.

Who can bring an action for Trespass of Land?

EDIO EKRETSU & ANOR VS MILLAR OYOBEBERE & ORS (1992-12) Legalpedia 05059 (SC)

‘It is trite law that trespass to land is actionable at the suit of the person in possession of the land.’ Per Ogwuegbu J.S.C

AJERO & ANOR v. UGORJI & ORS (1999) LPELR-295(SC)

“In Okolo v. Uzoka (supra) this Court stated:- “It is the law and this Court has so held times without number that trespass to the land is actionable at the suit of the person in possession of the land. The slightest possession in the plaintiff enables him to maintain trespass if the defendant cannot show a better title: And as regards a claim for damages for trespass the West African Court of Appeal, Awoonor Renner v. Anan (1934-1935) 2 WACA had this to say:-

“A trespass to land is an entry upon land or any direct and immediate interference with the possession of land. The comprehensive way of describing a trespass is to say that the Defendant broke and entered the plaintiffs’ close and did damage, and it follows that in order to maintain an action for trespass the plaintiff must have a present possessory title – an owner of land who is legally entitled to possession not being competent to maintain an action for trespass before entry.”

I am therefore in entire agreement with the Appellants that having established possession and acts of trespass on the land in dispute, the court below ought to have found in their favour damages for trespass and injunction because the fact that they failed on a claim for title does not mean that their claim for damages and trespass to the same land must necessarily fail, since possession and trespass have already been established in their favour. See Oluwi v. Eniola (supra) and Ojibah v. Ojibah (1991) 5 NWLR (Pt. 191) 296.” – Per SYLVESTER UMARU ONU, JSC

Difference between a claim of title to land and trespass to land

Oyadare v. Keji (2005) 7 NWLR (Pt. 925) 571

There is a clear dichotomy between a claim for declaration of title to land and a claim for trespass to land. In the case of declaration of title, the plaintiff must prove ownership of the land. On the other hand, a claim for trespass to land is predicated or based on exclusive possession of the land to which the claim relates.

Burden of prove in a claim of trespass to land

KACHALLA v. HAMMAN & ANOR (2021) LPELR-54599(CA)

“The burden is on the party who will lose if no evidence is adduced or the person that alleges the existence of a fact. See Fajemirokun vs Commercial Bank (Nig) Ltd & Anor (2009) S.C. (pt 1) 26. The 1st Respondent is the one alleging that the Appellant trespassed into his land. The burden therefore is on the 1st Respondent to show that the Appellant trespassed into BOFG/122; Plot 11 which clearly by evidence what was sold to him.” Per EBIOWEI TOBI, JCA

Damages for trespass to land

BORNO STATE URBAN PLANNING AND DEVELOPMENT BOARD, MINISTRY OF LAND AND SURVEY, BORNO STATE & ANOR v. BAMS INVESTMENT NIGERIA LIMITED (2017)LCN/9515(CA)

“On the issue of arbitrariness in making the award, it is trite law that every unlawful and unauthonzed entry into land in possession of another is actionable and for which damages would be awarded. Such damages are awarded as monetary compensation for the legal injury which a defendant has committed on the property of the claimant. The compensation in such a case is imposed by law – Attorney General, Bendel State Vs Aideyan (1989) 4 NWLR (PT. 118) 646, Ibrahim Vs Mohammed (1996) 3 NWLR (PT. 437) 453, Ajayi Vs Jolaosho (2004) 2 NWLR (PT. 356) 89.

Thus, a successful action in invasion of land per se attracts damages and even where no damage or loss is caused, the claimant is entitled to nominal or minimal damages ? Umunna Vs Okwuraiwe (1978) 6-7 SC 1, Osuji Vs Isiocha (1989) 3 NWLR (PT. 111) 623, Jija Vs Shande (2005) 9 NWLR (PT. 931) 543, Chukwuma Vs Ifeloye (2008) 18 NWLR (PT. 1118) 204, Anyanwu Vs Uzowuaka (2009) 13 NWLR PT. 1159) 445, Asuquo Vs Asuquo (2009) 16 NWLR (PT. 1167) 225, Spring Bank Plc Vs Adekunle (2011) 1 NWLR (PT. 1229)” – Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA

See also:

Nigerian cases on Defamation (Rationes decidendi)

Nigerian cases on Defamation

Below are some Nigerian cases with rationes on defamation. Defamation is the lowering of a person in the estimation of right-thinking members of the society.

Nature and Types of Defamation

SALAUDEEN v. OKUNLOYE (2019) LPELR-48469(CA)

Defamation as a tort, whether libel or slander consists of the publication to a third person or persons of any words or matter which tends to lower the person defamed in the estimation of right thinking members of society generally, or to cut him off from the society or to expose him to hatred, contempt, opprobrium or ridicule or to injure his reputation in his office, trade or profession or to injure his financial credit.

The tort of defamation is either libel or slander. Libel is in written form while slander is spoken words published to another person, other than the person defamed. It is the publication of the libelous matter that gives the plaintiff his right of action, but it must also be re-iterated that libel is all about the estimation in which others hold the plaintiff and not what he thinks of himself. See Black’s Law Dictionary, Ninth Edition page 479 to 480, and the cases of C.S.S.& D.F. Ltd V. Schlumberger (Nig.) Ltd (2018) 15 NWLR (pt. 1642) 238, (SC), Onah V. Schlumberger (Nig.) Ltd (2018) 17 NWLR (pt. 1647) 84, (SC), Oboh V. Guardian Newspaper (2018) LPELR-46511 (CA) and Ubochi V. Ekpo & Ors. (2014) LPELR- 23523(CA) and Ekong V. Otop (supra).” – Per BALKISU BELLO ALIYU, JCA

Proof to succeed in an action for defamation

SKYE BANK PLC V CHIEF MOSES BOLANLE AKINPELU (2010) Legalpedia (SC) 29121

To succeed in an action of libel the plaintiff must prove 3 fundamental elements of defamation constructively:

1. that there is the publication of the material complained of by the defendant;

2. That the publication refers to no other person but the plaintiff conclusively;

3. That the publication is defamatory of the plaintiff. – Per OGEBE JSC

ISIKWENU & ANOR v. IROH (2012) LPELR-19796(CA)

“The Plaintiff in an action for defamation must not only prove that Defendant published the defamatory words he must identify himself as person defamed. See OGBOMOR v. THE STATE (1985) 5 SC 242.” Per TUNDE OYEBANJI AWOTOYE, JCA

Who can bring an action for defamation?

Omega Bank Plc v. Govt., Ekiti State (2007) 16 NWLR (Pt. 1061) 445

Any natural or juristic person (except a government entity) may sue for defamation. An action for defamation is a purely personal action, and the proper person to sue as the plaintiff is the person defamed, and the proper person to be sued as defendant is the person who published the defamatory words or caused them to be published.

Whether or not the words are defamatory

S.B. DALUMO VS THE SKETCH PUBLISHING CO. LTD (1972) Legalpedia (SC) 51111

“As the law stands, the test of whether words that do not specifically name a plaintiff refer to him or not is this. Are the words used such as, reasonably in the circumstance, would lead persons who know the plaintiff to believe that he was the person referred to?” FATAYI-WILLIAMS, JSC.

When is defamation actionable per se

CHIEF TONY OKOROJI v. ONYEKA ONWENU (2016)LCN/9036(CA)

“Defamation/libel is actionable per se and once there is credible evidence and the Court is satisfied as in the case of the Appellant, that the defamation was established or proved as required by law, it can find for the Claimant and award damages, as may be appropriate.

There is no need for proof of actual damages in monetary or material terms by the claimant before an award of damages is made by the Court. The damages are presumed by law to have flowed naturally and automatically from the proved defamation/libel of the Claimant.

See Asheik v. M. T. Nig. Ltd (2010) 15 NWLR (1215) 114; Odueole v. West (2010) 10 NWLR (1203) 598: Guardian Newspapers Ltd v. Ajeh (2011) 10 NWLR (1256) 574. Because the assessment of damages for libel is in the realm of general damages that are presumed by law, factors to be considered would be the peculiar facts and circumstances of the defamation as shown in the evidence placed before the Court.” – Per MOHAMMED LAWAL GARBA, JCA

See also:

Nigerian cases on Necessary and Proper Parties (Rationes)

Nigerian cases on Necessary & Proper Parties

Below are some Nigerian rationes on or about Necessary and Proper parties. A necessary party, in law, is different from a proper party.

Classification of parties

Dapialong v. Lalong (2007) 5 NWLR (Pt. 1026) 199

Parties to an action have been classified into three namely: (a)proper parties; (b)desirable parties; and (c)necessary parties. Proper parties are those who, though not interested in the plaintiff’s claims are made parties for somegood reasons, and desirable parties are those who have an interest or who may be a affected by the result, while necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with.

Who is a Necessary party?

N.B.A. v. Kehinde (2017) 11 NWLR (Pt. 1576) 225

A necessary party is one who should be bound by the result and the question to be settled. Therefore, there must be a question in the action which cannot be effectually and completely settled unless he is a party. Thus, the only parties that must be present ina matter are necessary parties. In the instant case, the person who was doing the act complained of is the Nigerian Bar Association. If the court decided in favour of the respondent, the party that would be bound is the Nigerian Bar Association. Every other body or persons involved were at best, desirable parties or necessary witnesses.

OHWAVBORUA & ORS v. PDP & ORS (2013) LPELR-20872(CA)

“For the applicant to be a necessary party, he must show that the subject matter or cause of action between the existing parties is such that cannot be properly settled unless he is made a party. In Okoli v. Ejiakor supra, this Court was enjoined to ask the following questions: 1. Is the suit likely to be defeated by the non-joinder of the party? 2. Is it not possible for the Court to determine the live issues in the litigation without joining the party? 3. Will the party seeking to be joined suffer injustice if he is not joined?” – Per HELEN MORONKEJI OGUNWUMIJU, JCA

Who is a Proper Party?

PEOPLES DEMOCRATIC PARTY v. ALH. IBRAHIM ALI AMIN & ANOR (2019)LCN/13140(CA)

The Apex Court in Green v. Green (1987) NWLR (Pt. 61) 481 drew the distinction between persons who are proper parties, desirable parties. The Court went on to hold that:
Proper parties are those who, though not interested in the plaintiffs claim, are made parties for some good reasons e.g where an action is brought to rescind a contract, any person is a proper party to it who was active or concurring in the matters which gave the plaintiff the right to rescind. Desirable those who have an interest or who may be affected by the result.

Necessary parties are those who are not interested in the subject matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with. In other words the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff.
Words underlined for emphasis.

I want to believe that a resort to claim or reliefs sought by the plaintiff or claimant becomes inevitable if only to determine whether or not a person is necessary party to the suit. I have earlier alluded to some of the reliefs sought by the 1st respondent in the action. There is no question, looking at relief Nos 1, 2, 4, 5, 6, 7, 8, 10 including the 2 (two) reliefs sought in the alternative, all have bearing on the person whose name was submitted to the 2nd respondent as the candidate of the PDP. That is to say if the reliefs or claim will affect him in one way or the other the candidature of Abba K. Yusuf, the person whose name was submitted to INEC as the candidate of the PDP in the Governorship election, he is a necessary party and I submit affirmatively, that given the reliefs aforementioned, which do not only have bearing on the person of Abba K. Yusuf but affect his candidature, as the nominee of the party, no decision can fairly and effectively be taken behind his back, who is affected by the result.” – Per SAIDU TANKO HUSSAINI, JCA

Effect of a judgment given without joining necessary/proper parties

AZUBUIKE v. PDP & ORS (2014) LPELR-22258(SC)

“a necessary party should be allowed to have his fate in his own hands. He should not be shut out to watch through the window. Judgment made with an order against a person who was not a party to a suit is to no avail. It cannot be allowed to stand. See: Uku v. Okumagba (supra).” Per JOHN AFOLABI FABIYI, JSC

Dapialong v. Lalong (2007) (Ibid)

An action cannot be rendered incompetent simply because all the necessary parties have not been joined in the suit. It suffices if the parties before the court are competent parties and the cause of action, if substantiated by the plaintiff, entitles him to a remedy against the defendant. In the instant case, the reliefs sought by the respondents could be determined between the parties to the suit without joinder of other parties. In the circumstance, the trial court was right when it held that the parties to the suit were the necessary parties, and assumed jurisdiction to determine the suit.

Importance of Identifying Proper Parties

TRANSMISSION COMPANY OF NIGERIA P.H.C.N V ADAMAWA STATE BOARD OF INTERNAL REVENUE (2020) Legalpedia (CA) 01819

“For a suit to succeed the proper parties against whom rights and obligations arising from the cause of action must be properly identified. In Ehidimhen v. Musa (2000) FWLR (Pt. 21) 930 at 962 Para E-H the Apex Court held:-
It is imperative that for an action to succeed, the parties must be shown to be the proper parties to whom rights and obligations arising from the cause of action attach…..”

“As I earlier stated in this Judgment NELMCO was specifically created to assume the assets and liabilities of the defunct PHCN with a view to ensuring that all rights and claims against PHCN are settled by NELMCO. The case as constituted and determined by the lower Court without NELMCO was improperly constituted and thus incompetent. In the case of Alhaji Lawan Sarkin Tsaha v. Union Bank of Nigeria Plc. (2002) FWLR (Pt. 97) 765 at 771 Para E-F the Supreme Court Held that:-

There can be no argument that the action was improperly constituted. The parties ought to have been the Respondent Bank and the Board. Not having been properly constituted, the suit was incompetent. I therefore allow this appeal on that issue alone and set aside the Judgment of the lower Court.”

See also:

Nigerian cases on Stay of Execution (Rationes decidendi)

Nigerian cases on Stay of Execution

Below are some rationes decidendi from cases about or relating to the stay of execution in Nigeria. A stay of Execution is an order by a court to temporarily suspend another court order or judgement.

Presupposition of Stay of Execution

University of Agric., Makurdi v. Ogwuche (2000) 12 NWLR (Pt. 681) 360

A stay of execution in its connotation presupposes that there is a subsisting competent judgment which execution has to be stayed. But the court cannot stay execution of a judgment that is yet to be given. The grounding of stay of execution is coterminous with the pendency of an appeal and the appellant has to apply for it, as it is not as a matter of right. Besides, it underscores the presence of a valid notice of appeal containing competent grounds in the matter.

Effect of a stay of Execution

SPDC (NIG) LTD v. AMADI & ORS (2011) LPELR-3204(SC)

“Executory judgments on the other hand are stayed. In considering an application for stay of execution or injunction the grounds of appeal should not be taken in isolation, rather it is the effect of refusal of the application on the appellant if he subsequently wins the appeal that is of utmost importance. A stay of execution stops temporarily the beneficiary of the judgment from enjoying the fruits of the judgment while the appeal is being heard. It is usually granted before the hearing of the appeal and stays in force right through the hearing of the appeal. The aim being to protect the RES from destruction, thereby avoiding a situation where the court hearing the appeal is presented with a fait accompli. A stay of execution would be granted if the applicant is able to show special and exceptional reasons.” Per OLABODE RHODES-VIVOUR, JSC

Principle guiding the grant of a Stay of Execution

NNAMANI BE NNAJI NWOBODO v. OKIDA AKKAH (2016)LCN/8172(CA)

The application before this Court is for an Order staying the execution of the judgment of the Court below. A stay of execution is an equitable remedy. An Order for stay of execution is a discretionary matter and as with all exercise of discretion, it must be done judiciously and judicially. By virtue of S. 18 of the Court of Appeal Act 2004, the Court of Appeal has jurisdiction to grant or refuse stay of execution of a judgment appealed against, and such grant may be made unconditionally or upon conditions imposed with the judicial discretion of the Court. See also, Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt. 361) 124.

The Court should be mindful when faced with an application for stay of execution to ascertain that such an application is not merely a ploy to stall the proceedings but that the applicant has germane reasons for bringing such an application. This Court per Onalaja J.C.A. has formulated a comprehensive list of principles to serve as beacons to guide the Courts, be it of first instance or an appellate Court in considering the issue of stay of execution. See P.H.M.B v. Utomi (1999) 13 NWLR (Pt. 636) P. 572 at 574-575,

The locus classicus in Nigeria is Vaswani Trading Co. Ltd v. Savalakh & Co (1972) All NLR 922; (1972) 12 SC 50. See also Ajomale v. Yaduat (2) 1991 5 NWLR (Pt.191) Pg.266; Akilu v. Oduntan & Ors (1991) 2 NWLR (Pt.171) Pg.1. The following principles have been established in the long line of cases.

“1. The Courts have the unimpeded discretion to grant or refuse a stay. In this and in all other instances of discretion, the Court is bound to exercise the discretion both judicially and judiciously and not erratically

2. A discretion to grant or refuse a stay must take into account the competing rights of the parties to justice. A discretion that is biased in favour of an applicant for stay but does not adequately take into account the respondent’s equal right to justice is a discretion that is not judicially exercised.

3. A winning plaintiff or party has a right to the fruits of his judgment and the Court will not make a practice at the instance of an unsuccessful litigant of depriving a successful one of the fruits of the judgment in his favour until a further appeal is entertained.

4. An unsuccessful litigant applying for a stay of execution must show special or exceptional circumstances eloquently pleading that the balance of justice is obviously weighed in favour of a stay.

5. What will constitute these special or exceptional circumstances vary from case to case. However, such circumstances involve a consideration of some collateral circumstances and perhaps in some cases inherent matters which may, unless the order for stay is granted, destroy the subject matter of the proceedings or judgment or foist helplessness or render nugatory any order or orders of the Appellate Court or paralyze, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally produce a situation in which whatever happens to the case and in particular even if the appellant succeeds in the Court of Appeal, there could be no return to the status quo.

6. The onus is on the party applying for a stay pending appeal to satisfy the Court that on the peculiar circumstances of his case, a refusal of a stay would be unjust and inequitable.

7. The Court will grant a stay where its refusal will deprive the appellant of the means of prosecuting the appeal.

8. The chances of the applicant on appeal are important. If the chances are virtually nill, a stay may be refused.

9. The nature of the subject matter in dispute, whether maintaining the status quo until a final determination of the appeal in the case will meet the justice of the case.

10. Whether if the appeal succeeds the appellant will not be able to reap the benefits of the judgment on appeal.

11. Whether the judgment is in money and costs and whether there is a remarkable probability of recovering these back from the respondent if the appeal succeeds.

12. Poverty is not a special ground for granting a stay of execution except where the effect will be to deprive the appellant of the means of prosecuting the appeal. See also Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129; Martins v. Nicanner Foods Co. Ltd (1988) 2 NWLR (Pt. 74) 75

In this case, the prayer for stay of execution pending appeal is made to prevent the successful party in this case, the Respondent from reaping the fruits of his success at the trial. It is a serious interruption of the interest of the Respondent and for the Appellant to successfully deny even temporarily, the Respondent of the benefits of this success, the Appellant must have strong reasons- exceptional reasons. There is nothing to show that the Respondent intends to destroy or alienate the res of the substantive suit. In fact, Paragraphs 3 and 11 of the Respondent’s counter affidavit show that the Respondent does not intend to alienate, destroy or restructure the res pending the determination of the appeal, even though the judgment was given in his favour. See Jadesimi v. Aleke (1998) 11 NWLR (Pt.572) 133; A.U Deduwa & Ors v. Emmanuel Amoma Okorodudu & Ors (1974) LPELR-936 (SC).

The onus is on the Applicant to satisfy this Court that in the circumstances, a refusal of stay would be unjust and inequitable. He must show cogent reasons to deny the Respondent enjoyment of his success at the Court below. See Olatunji v. Owena Bank PLC (2008) LPELR-2578 (SC); (2008) 8 NWLR (Pt.1090) 668. There is the necessity of an applicant applying for a stay of execution to demonstrate that his appeal has merit. See T.S.A Industries Ltd v. Kema Investments Ltd (2006) LPELR-3129 (SC). – Per HELEN MORONKEJI OGUNWUMIJU, JCA

What an applicant for stay of execution must prove

FRANCHAL NIGERIA LTD. V NIGERIA ARAB BANK LTD. (2000) Legalpedia (SC) 51311

An applicant for stay of execution bears the burden of showing that the grant of stay of execution will not result in the determination of the issue subject matter of the appeal, and there will be no injustice to the Respondent -Per Adolphus Godwin Karibi-Whyte, JSC

Can an appeal operate as a stay of execution?

Zenith Intl Bank Ltd. v. Alobu (2017) 4 NWLR (Pt. 1554) 135 – (court of Appeal)

An appeal, where lodged does not operate as a stay of execution. Until a prayer for stay of execution is made and obtained the judgment creditor is entitled to enforce the judgment.

When a stay of execution will not be granted

ZENITH BANK PLC v. JOHN & ORS (2015) LPELR-24315(SC)

“It is settled law that once an execution is completed you cannot order a stay of execution of the judgment already executed. To ask for stay of execution of an executed judgment is like offering a dead man medicine intended to cure his ailment. Put another way, closing the stable after the horse had bolted. Such a request is not grantable by a Court of law which does nothing in vain. In a situation where execution had been levied, the proper application is for an order of Court setting aside the writ of attachment or execution if actual execution had not been carried out. The same principle applies to an order of injunction, either interim, interlocutory or perpetual. It cannot be granted to restrain the carrying out of an already completed act.” – Per WALTER SAMUEL NKANU ONNOGHEN, JSC

Granting a stay of execution

ONWOCHEI ODOGWU VS OTEMEOKU ODOGWU (1992) Legalpedia (SC) 81461

“The grant of stay of execution is entirely within the discretion of the court making the order. For an applicant to be entitled to the exercise of the discretion he must bring his conduct within the legitimate scope of the exercise of discretion. -See Leavis v. Leavis (1921) P.299. Hence, where he is in continuing disobedience of the Order of the Court, I do not conceive it legitimate to consider the exercise of discretion in his favour. – See Gower v. Gower (1938) P. 106. The contumacious behaviour is more egregious and censorious where the Applicant seeks the discretion of the court to endorse such a behaviour.

The Court guards its powers and image jealously. It should therefore be extremely wary in the manner it exposes such image, the diminution of its powers and the enforcement of its authority to public ridicule. In my respectful opinion as no court has an inherent jurisdiction to set aside the exercise of discretion of another except where such exercise has been capricious, or based on extraneous factors, and not following the accepted principles so will the valid exercise of discretion to stay execution not be interfered with.”

See also:

Nigerian cases on setting aside Judgment (Rationes decidendi)

Nigerian cases on Setting aside Judgment

Below are some Nigerian cases with rationes relating to setting aside the judgment of a court.

Can a court set aside its own judgment?

Ikpong v. Udobong (2007) 2 NWLR (Pt. 1017) 184

A court of law reserves the right to set aside its judgment which was given otherwise than on the merits upon good grounds shown. The principles in respect of the right of a court to set aside a default judgment is that unless and until the court has pronounced a judgment on merits or by consent it retains the power to set aside its own default judgement. The power to do so is discretionary and the discretion has to be exercised judiciously.

CHUKWU v. CUSTOMARY COURT UMUNUMO EHIME MBANO LGA & ORS (2014) LPELR-23813(CA)

“Finally on the holding of the Court below that it had no power to set aside the proceedings of the Customary Court because that Court was merely acting on the directive of the President of the Customary Court of Appeal of which he (the Learned Customary Court of Appeal Justice) who wrote the Judgment now on appeal was a member of the Court; a similar situation occurred in Cash Affairs Finance Ltd. & Anor V. Inland Bank (Nig.) Plc (2000) 5 NWLR (PT. 656) 568 at 582 and Obadina, JCA, relied on the English case of Craig V. Kanseen (1943) K.B. 256; Per Lord Greene who stated the position of the law thus:

“Those cases appear to me to establish that a person who is affected by an Order which can properly be described as a nullity is entitled ex-debito justitiae to have it set aside… so far as procedure is concerned, it seems to me that the Court in its inherent jurisdiction can set aside its own Order, and that it is not necessary to appeal from it.” Per IGNATIUS IGWE AGUBE, JCA

Principles governing setting aside a judgment

OLUFUNMISE v. FALANA (1990) LPELR-2616(SC)

“The law on setting aside a judgement obtained by fraud is very well settled. It is not in doubt and the elements of fraud to be proved to entitle a claimant/plaintiff to succeed are clear and precise. The learned authors of Halsbury Laws of England 2nd Edition Vol. 22 page 790 set out the law in paragraph 1669 as follows: “A judgement, which has been obtained by fraud either in the court or of one or more of the parties, can be impeached by means of an action which may be brought without leave and is analogous to the former chancery suit to set aside a decree obtained by fraud.

In such an action, it is not sufficient merely to allege fraud without giving any particulars, and the fraud must relate to matters which prima facie would be reason for setting the judgment aside if they were established by proof and not to matters which are merely collateral. The Court requires a strong case to be established before it will allow a judgment to be set aside on this ground, and, unless the fraud alleged raised a reasonable prospect of success and was discovered since the judgment complained of, the action will be stayed and dismissed as vexatious.” – Per ANDREWS OTUTU OBASEKI, JSC

As to a Final Judgment

CHIEF L.L.B. OGOLO V JOSEPH T. OGOLO LER (2006) SC 46/2002

“It is settled law that a judgment given at the end of a normal trial, after hearing evidence of both parties and submissions of counsel on the relevant issues of facts and law, is on the merit of the action and also a final judgment which the court concerned is incapable of setting aside except for fundamental defects that go to the jurisdiction of the court. Where the judgment is final and the court that enters it has no jurisdiction to set same aside having thereby become funtus Officio, the only way to challenge it or remedy any defect therein is by appeal to a superior court.” – Per. W. S. N. ONNOGHEN, JSC

Difference between “setting aside” and “review”

Fapa Co. Ltd. v. O.W.C. Ltd (2017) 12 NWLR (Pt. 1579) 169

setting aside a decision of a court ex debito justitiae and reviewing a decision of court are two distinct and separate things. The two cannot be used interchangeably. setting aside means to annul or vacate, while review connotes to reconsider, inspect or re-examine a subject or thing. setting aside of a decision only calls for an evaluation of whether the grounds adduced, which are usually extrinsic the decision itself, are valid in order to result in an annulment or vacation of the decision. Review of a decision, however, involves a consideration of reasons and factors that are intrinsic in the decision and whether after such a reconsideration, re-examination and inspection, there would be a need to vary or alter the decision.

A court cannot review the decision of a court of co-ordinate jurisdiction, but it definitely has the competence to set aside the decision. In other words, review of a judgment involves a consideration or reconsideration and re-examination of the merit of a judgment in order to determine its correctness or otherwise in law, while setting aside a null judgment or order only requires a look at the sustainability of the ground upon which the application to set aside was premised and not the otherwise, merit of the judgment.

See also:

Nigerian Cases on False Imprisonment (Rationes decidendi)

Nigerian Cases on False Imprisonment

Below are some rationes decidendi of Nigerian courts in actions of or relating to false imprisonment. False imprisonment is a total restraint of the liberty of a person for however short a time without lawful excuse.

Meaning of False Imprisonment

Jim-Jaja v. C.O.P. (2011) 2 NWLR (Pt. 1231) 375

False imprisonment is a complete deprivation of liberty of a person for any time, howsoever short, without lawful excuse. The imprisonment is complete when the defendant directly and intentionally causes the confinement of the plaintiff and completely deprived him of his liberty. The length of the confinement is only relevant for assessment of damages. It is false imprisonment ifthe plaintiff was arrested and detained by the police in consequence of false and spiteful allegation of the complainant (third party).

ARAB CONTRACTORS (O. A. O.) NIGERIA LTD v. GILLIAN UMANAH (2012)LCN/5318(CA)

It is indeed trite, that the term false imprisonment, as a common law misdemeanor and a tort, denotes a restraint of a person in a bounded area without any justification or consent. The term applies to both private as well as governmental detention. According to R.F.V. Heuston, in SALAMOND ON THE LAW OF TORTS, 17TH edition, 1977 at 123 –

[In the phrase false imprisonment] false is…used, not in the ordinary sense of mendacious or fallacious, but in the less common though well established sense of erroneous or wrong; as in the phrases false quantity, false step, false taste, etc.

See also BLACK’S LAW DICTIONARY 9TH edition, 2009 at 677 – 678 thus:

Some courts have described, false and false imprisonment as causes of action which are distinguishable only in terminology. The two have been called virtually indistinguishable, and identical. However, the difference between them lies in the manner in which they arise. In order to commit false imprisonment, it is not necessary either to intend to make an arrest or actually to make an arrest. By contrast, a person who in falsely arrested is at the same time falsely imprisoned. “32 Ani Jur. 2nd False Imprisonment c3 (1995).” – PER I. M. M. SAULAWA, J.C.A.

Will giving Information to the Police constitute False imprisonment?

ARAB CONTRACTORS (O. A. O.) NIGERIA LTD v. GILLIAN UMANAH (Ibid)

“It’s a well settled principle, that an action for false imprisonment (or false arrest, as the case may be) will not lie against a private individual who merely gave information which led the police, on their own initiative, to apprehend a suspect. See ISHENO vs. JULIUS BERGER (NIG) PLC (2008) 6 NWLR (pt.1084)582 at 597. Conversely, for an action for imprisonment to lie against a private individual, the complainant has an onerous duty of establishing that the defendant was actively responsible for setting the law in motion against him. See OKONKWO vs. OGBOGU (1996)5 NWLR (pt.449) 420 at 33 per Ogbuegbu, JSC.” – PER I. M. M. SAULAWA, J.C.A.

LUCKY NEWMAN OLODO & ORS v. CHIEF UMEME JOSHUA (2020) Legalpedia (CA) 91911

“The law is trite on what false imprisonment is. An action can be against a private individual who maliciously gave false information to the Police and caused another person to be arrested or wrongfully detained. It is a tort. In Okafor Vs. Abubofuani (2016) 12 NWLR (Pt. 1525) p.117, Mary Ukaego Peter-Odili, JSC has this to say:

“It is a correct representation of the law that if a report as in this case is made to the Police which has been found to be totally false, malicious and without foundation it is the maker of the report that is liable in damages to the Plaintiff for false imprisonment. This is because it is the maker of the report which complaint ignited the action of detention carried out by the Police that does not bring in the Police as a party to the action in the false report and imprisonment”

However, action will not lie against an individual who merely gave information to the Police which led the Police in the exercise of their discretion to arrest a suspect. See Isheno Vs. Julius Berger (Nig.) Plc (2008) 6 NWLR (pt. 1084) p. 582”

Nwadinobi v. Botu (2000) 9 NWLR (Pt. 672) 220

An action for false imprisonment will not lie against an individual who merely gave information which led the Police, on their own initiative, to arrest a suspect. The position is also the same in respect of a report made to the Police where a particular person is named as the person suspected of stealing the missing property of the person making the report and the person named is subsequently arrested and detained. This is because the act of indicating to the Police a person whom one suspects of the commission of an offence is not itself sufficient to make the person who pointed out the suspected person liable for false imprisonment should the Police decide on their own initiative to arrest that person.

The person making the report to the Police may however be liable if it is shown that the report to the Police is totally false, malicious and without foundation and that the Police did not act on their own volition.

What the Plaintiff must show to succeed in an action of False imprisonment

OKECHUKWU & ANOR v. NWOSU & ANOR (2018) LPELR-44893(CA)

“False imprisonment occurs when a person’s movement is restricted within an area against his will and without any lawful justification. The law is settled that in an action for false imprisonment, the claimant must show that the defendant was actively instrumental in setting the law in motion against him.” – Per MISITURA OMODERE BOLAJI-YUSUFF, JCA

Is it necessary to give evidence of damage

ONUCHUKKWU v. FIDELITY BANK (2017) LPELR-50015(CA)

“The law is also that in an action for false imprisonment, it is not necessary for a plaintiff to give evidence of damages in order to establish his cause of action or to be entitled to the award of damages. Once he proves that his right to free movement was unlawfully, wrongfully and unjustifiably breached and violated, he is generally entitled to the award of damages for the tort.Mandilas & K. vs. Apena (1969) 1 NWLR, 199. Okonkwo vs. Ogbogu (1996) 5 NWLR (449) 420. Afribank Nigeria Plc vs Onyima (2004) 2 NWLR (858) 654.” – Per MOHAMMED LAWAL GARBA, JCA

See also:

Nigerian cases on Divorce (Rationes decidendi)

Nigerian cases on Divorce

Here are some Nigerian cases with rationes decidendi on divorce. Divorce is the process of legally dissolving a marriage.

Jurisdiction to entertain divorce petition

Koku v. Koku ((1999) 8 NWLR (Pt. 616) 672)

Jurisdiction of court to hear a divorce petition is governed by the domicile of the husband and not by the residence of the husband. And by operation of law, a married woman, on marriage, takes on the domicile of her husband. Consequently, the court with jurisdiction to adjudicate on a divorce matter is the court of the domicile of the husband.

Factors to be considered in granting a Divorce

UZOKWE v. UZOKWE (2016) LPELR-40945(CA)

“For the petitioner’s first ground for the petition, the provision of Section 15(2)(c) of the Matrimonial Causes Act come in handy and it states: “15(2) the Court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if, but only if, the petitioner satisfies the Court of one or more of the following facts- (c) that since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. ” To prove this ground, the law makes it incumbent on the petitioner to show: (a) the sickening and detestable behaviour of the respondent; and (b) that the petitioner finds it intolerable to live with the respondent.

See Damulak v. Damilak (supra); Nanna v. Nanna (supra); Ibrahim v. Ibrahim (supra), It was also held in those cases that the test is objective, not a subjective one. I have placed those proved acts of misconduct against the respondent side by side with the above highlighted positions of the law. I am of the considered view that those acts of behaviour are quite upsetting and shocking even as they are grave and weighty given the history of the said marriage. They reek of matrimonial infamous acts which have the capacity to unsettle the mind and life of any reasonable man.

When these fragmented detestable acts are pooled together, they qualify as cruel acts which, though not a ground for divorce are facts that can be used to demonstrate that the petitioner cannot reasonably be expected to live with the respondent. See Damulak v. Damulak (supra); Nanna v. Nanna (supra). In the case of Williams v. Williams (1966) 1 SCNLR 60 at 67 Idigbe, JSC stated: “……. Cruelty is in its nature a cumulative charge and so an accumulation of minor acts of ill treatment causing or likely to cause the suffering spouse to break down under strain constitutes the offence; thus cruelty may consist in the aggregate of the acts alleged in a petition and each paragraph need not allege an independent act of cruelty sufficient in itself to warrant the relief sought.” – Per TOM SHAIBU YAKUBU, JCA

Award of damages in a divorce action

MRS. ROSE NDIBULUM ENWEZOR v. MR. CHRISTOPHER IFEANYI ENWEZOR & ANOR (2012)LCN/5780(CA)

“In divorce proceedings, the party claiming damages must justify his or her claim and also that his or her conduct was not responsible for the damages suffered. In the instant case the appellant’s breed of a child which she claimed does not belong to the respondent, was apparently the reason that triggered the long separation and subsequent marriage under customary law between the respondent and the partly-cited. The appellant does not therefore qualify for damages caused by her own conduct. In fact she was lucky the respondent did not claim for damages against her. The sleeping dog should be let to lie.” – Per HUSSEIN MUKHTAR, JCA

Cruelty as a ground for divorce

BIBILARI v. BIBILARI (2011) LPELR-4443(CA)

“Cruelty is not one of the grounds set out under S. 15 (2) of the Matrimonial Causes Act for divorce; it remains however, one of the old grounds for divorce. A Court can hold that a marriage has broken down irretrievably on the ground that one spouse has been proved to be guilty of cruelty to the other. Damulak v. Damulak (2004) 8 NWLR Pt 874 C.A 151.

What then constitutes cruelty? In considering what constitutes cruelty, the Court should consider the entire evidence adduced even where there is no specific evidence of violence adduced. In Willians v. Willians (1966) 1 All NLR 36 at Pg 41/42 Idiebe JSC said thus: “The court should consider the entire evidence before it, and although not specific instance of actual violence is given in evidence it should be able, on objective appraisal of the evidence before it, to say whether or not the conduct of the respondent is of such a character as is likely to cause, or produce reasonable apprehension of, danger to life, limb or health (bodily or mental) on the part of the petitioner.”

Cruelty is a conduct which is grave. When there is injury or a reasonable apprehension of injury whether physical or mental matted out to a partner, that is sufficient to be described as a behaviour unacceptable in a marriage. Nanna v. Nanna (2006) 3 NWLR Pt 966, 1 C.A. The accumulation of minor acts of ill-treatment causing or likely to cause a spouse to breakdown under strain certainly constitutes cruelty. Like in all Civil Causes, the burden of proof rest on the Petitioner.

Therefore the test is whether the Respondents conduct will in the opinion of a reasonable man justify the Petitioner living apart. Lord Pearce in Gollina v. Gollina (1963) 2 All ER 966 reflected the concept when he said:- “It is impossible to give comprehensive definition of cruelly, but when reprehensible conduct or departure from the normal standard of conjugal kindness causes injury to health or an apprehension of it, it is, I think, cruelty if a reasonable person, after taking due account of the temperament and all other particular circumstances would consider that the conduct complained of is such that this spouse should not be called on to endure it.” The learned trial Judge had the privilege to see and hear the witnesses and made his findings.

Where there is sufficient evidence in support of such findings and there is no substantial error apparent such as violation of principle of law. The attitude of the Appellant Court is not to interfere. Ezeonwu v. Onyech (1996) 3 NWLR Pt. 438 499 SC. The Appellant did not establish in evidence any conduct or act of the Respondent that constitutes cruelty. The evidence must show accumulation of acts of ill treatment causing or likely to cause the Appellant to breakdown under strain; infact one grave act will suffice.” – Per REGINA OBIAGELI NWODO, JCA

Principles guiding dissolution of marriage under Islamic law

Usman v. Usman (2003) 11 NWLR (Pt. 830) 109 – [Court of Appeal]

The practice of divestiture or self-redemption (“khul’u”) is one of the ways of dissolving a marriage conducted in accordance with the Sharia principles. Its peculiar nature is that it is initiated by the wife rather than by the husband. It allows that if a wife is unhappy in her marriage and the relationship between her and her husband is so strained that a harmonious union between them is impracticable, due to no fault of her husband, she may seek a divorce from him.

In that case, she may, as consideration for the divorce, surrender the dowry and, where necessary, other marital gifts to herhusband to compensate him for his material and moral losses, whilst the husband may, if he likes, waive his right of compensation and simply agree to divorce her in compliance with her request. Once “Khul’u” occurs, it becomes an irrevocable form of divorce.

Joinder of parties in divorce proceedings

MRS. JOSEPHINE A. USHIE VS ENGINEER GODWIN A. USHIE. (2008) Legalpedia (CA) 11112

“The issue of joinder of parties in divorce petitions is not decided by the reliefs claimed. See Section 32(1) Matrimonial Causes Act but rather it is decided by what led to the Divorce Petition.

The only exceptions where the joinder cannot be made are:
1. where the alleged adulterer is dead
2. where the alleged adulterer is under 14 years of age
3. an infant or young person under the age of 21 years with whom incest is committed by either of the parties to the petition.”

See also:

Nigerian cases on Child Custody (Rationes decidendi)

Nigerian cases on Child Custody

Here are some Nigerian cases with rationes on the custody of a child.

Factors to be considered in determining the custody of a child

OBAHAYA v. OBAHAYA (2022) LPELR-57141(CA)

“The principle of law is settled and which is that; in proceedings with respect to the custody, guardianship, welfare, advancement or education of the children of a marriage, the Court shall regard the interests of those children as the paramount consideration and subject thereto, the Court may make such order in respect of these matters as it thinks proper. See SECTION 71(1) OF THE MATRIMONIAL CAUSES ACT. Thus, in awarding custody of a child, the Court will consider the care of the child’s person; morally, physically, and mentally. Hence, the welfare and the interest of the child must be accorded paramountcy where an order of custody of the child is to be made. In fact, the welfare of children of a marriage is not only of paramount consideration but a condition precedent for the award of custody. Custody is never awarded as a reward for good conduct nor is it ever denied as punishment for the guilty party’s matrimonial offences.” Per UCHECHUKWU ONYEMENAM, JCA

The position of the Law on the right to custody of children

MRS. CHARITY OKAFOR v. MR. PAUL OKAFOR (2016)LCN/8249(CA)

“I think, it is apposite, at this juncture to resort to the position of the law on the right to custody of children in situation where a marriage has been broken down, and the husband and wife (father and mother) are no longer living together. In Okwueze v. Okwueze (1989) 3 NWLR (Pt. 109) P. 321 @ 334, the Supreme Court, when dealing with the right to custody of children of a dissolved marriage which was conducted under Native Law and custom, enunciated that under most systems of Customary Law in Nigeria, a father of a legitimate or legitimated child has absolute right to custody of the child. However, the Customary Laws recognizes that such absolute right of the father will not be entered where it will be detrimental to the welfare or well-being of the child’

In Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) P.539 @ 560, the Supreme Court enunciated that if the parents are separated and the child of the union is of tender age, it is presumed that the child will be happier with the mother and no order will be made against this presumption unless it is abundantly clear that the contrary is the situation for example immorality of the mother, infectious disease on the mother insanity, and or her cruelty to the child. For this purpose custody proceedings could even be adjourned to the judge’s chambers where an informal hearing of the child’s view could be assessed along with those of the parents. Ojo v. Ojo (1969) 1 All NLR 434; Apara v. Apara (1968) l All NLR 241.

E. I. Nwogugu, in his book on Family Law in Nigeria, 1974, (Reprinted 1985) dealing with custody of children under Customary law put the position of the law succinctly thus:

Under most systems of Customary Law in Nigeria, the father has the absolute right to the custody of his legitimate or legitimated children. On the death of the father, the custody of the child is vested in the male head of the father’s family, though the mother has the day-to-day care of the child.

However, Customary Law recognizes that the father’s absolute right will not be enforced where it will be detrimental to the child’s welfare. For instance, where the child is of tender age, Customary Law requires that it should be left under the care of the mother. In such a case, the father’s right is merely in abeyance, and may be exercised when the child could safely be separated from the mother. ” Margaret C. Onokah, in her BOOK FAMILY LAW, 2002, wrote that: “Under Customary Law, a father has exclusive custodial right over the children of his marriage. This right extends beyond custody, to “ownership” of the children. Thus his right has been described as capable of transmission to his family members. The wife has no such rights over her children. During separation or on dissolution of a marriage under Customary Law, the father has custody of the children of the marriage. This exclusive custodial right of a father over the children of the marriage does not obtain under statutory marriage. In this latter, the Court determines which of the parents has custody of the children, ‘the paramount consideration being the welfare of the children themselves. This rule of Customary Law hinged on the fact that most Nigerian communities are patrilineal (a few being the opposite matrilineal) by reason of which children belong to their fathers’ lineage.

How can the right of custody of children be determined under the Customary Law? The answer to the foregoing question can be found in the case of Okwueze v. Okwueze (1989) 3 NWLR (Pt.109) P. 321 @ 335, wherein UWAIS J.S.C (as he then was) said:

“The only proper manner in which the custody of a child under Customary Law can be determined is by specifically taking evidence to establish what is in the best interest and welfare of the child. Like the Customary Court, the High Court failed to do so. Its decision cannot, therefore, be said not to have caused a miscarriage of justice. Furthermore, the Court of Appeal made the same mistake since it agreed with the decision of the Customary Court which has been shown to have been a misdirection. It too based its decision merely on the request made by the respondent in the Customary Court to have custody of the children and not on evidence adduced to determine the interest and welfare of the children” ” – per. IBRAHIM SHATA BDLIYA, J.C.A.

Custody of children in the realm of ancillary relief

OMOTOLANI v. BABALOLA (2021) LPELR-56369(CA)

“The issue of custody of children under the Matrimonial Causes Act falls in the realm of an ancillary Relief. In respect of the propriety of its grant, the Supreme Court in the case ofADENUGA VS. ODUMERU (2001) 1 SC PT. 1 PG. 72 stated as follows: “Since the Jurisdiction of the Court is determined by Plaintiff’s Claim, the Court will not grant any Ancillary Relief not within the purview of the main claim.” Per Bage, JCA in EIGBE VS. EIGBE (2012) LPELR 19690.” – Per UZO IFEYINWA NDUKWE, JCA

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