Ubongene

FIDUCIARY DUTIES, DUTY OF CARE AND SKILL: WHAT THE DIRECTORS MUST KNOW UNDER CAMA 2020

A director is a person appointed by the company to direct and manage the company’s business. The court in Olufosoye v. Fakorede (1993)1 NWLR (Pt. 272) described as “…a person appointed or elected according to law, authorized to manage and direct the affairs of a corporation or a company”. Upon assumption of the role of a director in a public or private company, some duties arise as a result. Every director is expected to keep to these duties.

Duties of the Director

Generally, the duties of directors are classified into two:

Fiduciary Duties; and
Duties of Care and Skill

A. Fiduciary Duties of the Director

A director of a company shares a fiduciary relationship with the company. This relationship requires a director to maintain utmost good faith in his dealings with and on behalf of the company. A director owes a fiduciary duty to the company where –

a director is acting as an agent of a particular shareholder; or
though not an agent of any shareholder, but the director is a shareholder or a person dealing with the company’s securities.

The fiduciary duties of a director of a company are as follows:

Duty to always act in what the director believes to be in the best interests of the company, in good faith, to preserve the company’s assets, further its business, and promote the purposes of the company – section 305(3) of CAMA 2020.
Duty to further the company’s business and purposes in a faithful, diligent, careful manner. In doing so, the director must pay attention to what an ordinarily skillful director would do in those circumstances. The director must also have regard to the impact of the company’s operations on the environment the company carries on its business operations – section 305(3) of CAMA 2020.
Duty to always take into consideration the interests of the company’s employees, as well as the interests of its members – section 305(4) of CAMA 2020.
Duty of a director to exercise powers as a director based on the specified obligations within his role and not do so for a collateral purpose – 305(5) of CAMA 2020.
Duty not to fetter discretion to vote in a particular way (the director is expected to use his voting power and discretion in the best interest of the company) – 305(6) of CAMA 2020.
Where a director is allowed to delegate powers under any provision of CAMA, such a director shall not delegate the power in a way that may amount to an abdication of duty – 305(7) of CAMA 2020.
Duty to ensure that the director’s interest does not conflict with any of the director’s duties to the company- section 306(1) of CAMA 2020.
Duty not to make unnecessary secret profit while managing and utilizing the properties of the company as a director. If such profit is made, the director is expected to make accounts – 306(2) and (3) of CAMA 2020. Where a director discloses potential interests before the transaction and before the secret profits are made to the general meeting, the general meeting may or may not authorize any resulting profits. The director is likely to escape liability on this premise. Disclosure after secret profit necessitates accountability – 306(2) and (3) of CAMA 2020.
Duty not to misuse corporate information. This duty subsists even after the retirement of the director and a director or former director can be restrained by an injunction from misusing the company’s information – 306(5) of CAMA 2020.
In the case of a public company, duty to disclose the age of the director where a director is up to or more than 70 years at the time of appointment or proposed appointment. Additionally, to disclose multiple directorships and not to derogate from fiduciary duties in a particular company because of multiple directorship roles in different companies – sections 278 and 307 of CAMA 2020.

Duties of Care and Skill

The duty of care and skill is provided for in Section 308 (1) and (2) of CAMA 2020. Every director of a company is expected to discharge his or her duties with the degree of care, diligence, and skill in a manner that a reasonably prudent director would do in comparable circumstances. Failure to take reasonable care is a ground for an action for negligence and breach of duty against a director in default.

A director is to be individually responsible for the actions of the board in which he participated. If a director is absent from the board’s deliberations on a particular issue, that does not relieve the director of such responsibility that may arise as a result of that deliberations, unless justified – section 308(4) of CAMA 2020.

In the light of the foregoing, no provision, whether contained in the articles of association of the company, resolutions of a company, or any contract, can relieve any director from the duties highlighted above or relieve a director from any liability incurred as a result of any breach of these duties – section 305(8) and (9) of CAMA 2020. The inability or unwillingness of the company to perform any function or duty under the company’s articles and memorandum of association does not also constitute a defense to the breach of any duty owed by the director to the company – section 306(4) of CAMA 2020.

ANATOMIZING THE POWER OF THE JUDICIARY UNDER THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

WRITTEN BY

UBONG ENE (LL.B, B.L.)

The legal basis for the exercise of the judicial powers in Nigeria finds its original source under the Constitution of the Federal Republic of (Nigeria 1999 CFRN 199). Section 6 creates superior court of records and empowers them to exercise judicial authority. The judiciary is the third arm of government entrusted with the power to interpret laws made by the legislature.

In the 1999 constitution, the types, organization, jurisdiction, functions and powers of the judicature are highlighted in section 6 and covered in details under chapter viii. The organization of the court is hierarchical or pyramidal. Section 6 (2) of the CFRN 1999 vest the judicial powers in the court. This section provides that “the judicial power of a state shall be vested on the court to which this section relates, being courts established, subject as provided by this constitution for a state’’

Idigbe JSC in Brovic Motors Limited. And Anor. v Wema Bank (1983) ISCNLR 296 defined, judicial power to mean “the power to construct and apply the law.’’ It is important to note the distinction between judicial functions and judicial powers. While the former encompasses the role of the judiciary in resolving conflicts through resort to established rules, which can be exercised by non-judicial or quasi-judicial institutions, the latter is restricted to recognized judicial institutions, and is usually much wider than the general functions. The judiciary as an independent organ of modern government is vested with the role of interpreting the law through the various courts established and doing substantial justice without fear or favour to all and exercising the judicial power vested in it.

Hierarchy of courts is often a creation of statutes which also to each hierarchy, commensurate power and jurisdiction. Nigerian courts are basically of two categories, namely: the superior courts of record made up of the Supreme Court, the Court of Appeal, the Federal High Court of the state, The Federal High Court of the FCT, the High Court the state, Sharia Court of Appeal of the state, Customary Court of Appeal of the state; and other courts lower in hierarchy which are not courts of record such as magistrate court, District Courts, Area Courts, Sharia court, Juvenile Court and Court Martial or Military Court etc.

It is important to note that the lower court which are not courts of records falls under the courts that is established through the instrumentality of the provision of Section 6(5)j of the CFRN 1999 which state as follows: “such other courts as may be authorized by law to exercise jurisdiction on matters with respect to which the national Assembly may make law’’ and also the provision of Section 6(5)k of the Constitution which in turn provides thus: “such other courts as may be authorize by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws.” The power of the Judiciary in Nigeria of the Judiciary is contained in Section 6(6) a, b, c and d of the CFRN 1999. Section 6(6) a, b, c and d provides accordingly as follows:

The Judiciary powers vested in accordance with the foregoing provision

a) Shall extend, notwithstanding anything to the contrary in this constitution, to all inherent powers and sections of a court of law

b) Shall extend to all matters between government or authority and to any person in Nigeria, and to all action and proceedings relating thereto, for the determination of any question as to civil right and obligation of that person.

c) Shall not except as otherwise provided by this Constitution, extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution;

d) Shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law.

However, the power of the Judiciary as regards section 6(6) c is limited. This section has to do with the enforcement of the provisions of Fundamental Objectives and Directives principles of State Policy provided for in Chapter II of the CFRN 1999. Section 6(6) c Provides clearly that:

“the Judicial powers vested in accordance with the forgoing provisions of this section shall not except as otherwise provided by the constitution, extend to any issue or question as to whether any law or any Judicial decision is in conformity with the fundamental objectives and Directive Principles of State policy set out in Chapter II of this Constitution.”

In essence, the provision of this section is non-justiciable to the extent of the constitution per se making room for it justiciability. This goes further to highlight that the judiciary has no power to act or enforce or attain to matters that falls under Chapter II of the Constitution, except the Constitution permits them to do so. That is to say that the jurisdiction of the judiciary is ousted as far as Chapter II is concern by virtue Section 6(6) c of the same CFRN 1999. The non justiciability of Chapter II of the Constitution has been judicially confirmed in several holdings and judgments. One of such case is the case of Archbishop Okogie v AG. Lagos state (1982) 2 NCLR 337 a case decided under the 1979 Constitution in which the provisions in question is in parimateria with that of the 1999 Constitution of the Federal Republic of Nigeria. Here the courts held that:

“while the constitution makes it a duty and responsibility of the judiciary among other organs of government to conform to and apply the provisions of chapter II, section 6(6) c of the same constitution make it clear that in court has jurisdiction to pronounce any decision as to whether the any organ of government has acted or is acting in conformity with the fundamental objectives and Directive principles of state policy.”

However, the constitution has not made the non justiciability of the provisions of chapter II of the constitution sacrosanct. The wordings ‘except otherwise provided by the constitution,’ has created a leeway through which judicial powers can extend to the enforcement of chapter II. In giving precision to how the judicial power of the judiciary extends to the enforcement of the provisions in chapter II which is undoubtedly made non-justiciable in Section 6(6)c of the CFRN 1999, Niki Tobi JSC in the case of Federal Republic of Nigeria v. Aneche and 3 ors (2004) 1 SCMP. 36 at 78 Observed as follows:

“my view, section 6(6) c of the Constitution is neither total nor sacrosanct as the subsection provides a leeway by the use of the words “except as otherwise provided by the constitution.” This means that if the constitution otherwise provides in another section, which makes a section or sections of chapter II justifiable, it will be interpreted by the court.”

There are two ways by which the provisions of chapter II can be made justiciable in the light of the light of the exceptions contained in section 6(6) c. First, when the constitution in it justiciable section directed that a particular section of Chapter II of the Constitution shall be complied with in carrying out the provision of the section of the constitution. For instance, Section 147(3) of the CFRN 1999 provides that any appointment under subsection 2 of this section by the president shall be conformity with the provision of section 14(3) of this Constitution “in appointing the chairman and member of board of governing bodies of statutory corporation in which the government of the state has controlling shares or interest and council of universities, colleges and other institutions of higher learning, the governor shall conform with the provision of section 14(4) of the CFRN 1999.” Also while implementing the provisions of section 197(3) of the Constitution; compliance with section 14(4) of this constitution becomes mandatory, thus justiciable.

Second, where the constitution in it justiciable section empowers the National Assembly to implement the provision of Chapter II of the constitution via legislation. For example, Item 60 of the Exclusive legislative list under Part 1 of the Second Schedule to the CFRN 1999 empowers the National Assembly to make law with respect to the “establishment and regulation of authorities for the Federation or any part thereof…to promote and enforce the observance of the Fundamental and Directive Principle contained in the Constitution’’

Commenting on the above, Justice Mohammed I. Uwais CJN (as he then was) observed that “the breathtaking possibilities created by this provision have sadly obscured and negated by non-observance.’’ It was in this light that the supreme court held in Attorney General of Ondo State v Attorney General of the Federation (2002) 9 NWLR (pt. 772) 22 that the court cannot enforce any provision of Chapter II of the Constitution until the National Assembly has enacted specific act as it is done with respect to section 15(5) of the CFRN 1999 of the Federal Republic of Nigeria. It is through the above process that the power of the judiciary will extend to cover the enforcement of the provision of Chapter II as provided in section 6(6) of the Constitution.

Furthermore, it is important to glaringly point out that the Constitution openly denies the judiciary power in issues of cover under section 6(6) d of the Constitution. This section provides:

The judicial power vested in accordance with the foregoing provision of this section shall not, as from the date when this section come into force extend to any action or proceedings relating to any existing law on or after 15th January 1966 for determining any issue or question as to competence of any authority or person to make such law.

This section in effect states that the judicial power of the judiciary shall not extend to actions or proceedings that tends to question the competence of the person or authorities that actually made or involved in the making of the enactments or promulgations that were in force in Nigeria on or before the 15 day of January, 1966. However, it is important to note that the powers of the judiciary in this section is only limited when it has to do with laws that where in existence in Nigeria from 15 January, 1966 till 1999 when the 1999 Constitution and section 6(6) d came into force. Therefore, the judiciary will have the power to question or investigate into the competence of the persons or authorities who made or makes other laws in Nigeria from the date section 6(6) d of the 1999 constitution became operative.

However, Section 6(6) d has attracted the critical scrutiny of judicial warlords. In the case of Prince Mustapha v Governor of Lagos State(1987) 2 NWLR (Pt. 58) 539 at 568, Oputa JSC Echoed the view of Irikife JSC (as he then was) in Uwaifo v. AG Bendel State(1983) 4 NCLR in his search for wisdom behind section 6(6) d of the 1979 Constitution which is pari material with the same provision in the 1999 constitution, stated that the military regime at the end of their rule sought to hand down a Constitution in which they made certain that future administration would not be given free hand to dig up skeleton of any legislation which they were involved for scrutiny.

Oputa JSC further stressed that it is worrisome to say at least that the judicial power which is by tradition vested on the judiciary can be displaced for such selfish proclivity of the military regime. His lordship concluded that there is no justifiability for the aberration section 6(6) d hold out. That it is most appropriate to allow the court to enjoy interpreting and pronouncing on validity of laws.

Obiozor in his article ‘The Constitutional Vesting of Judicial Power in Judicature in Nigeria- the Problem with Section 6(6) d of the Constitution of 1999’ contended that it is unfortunate that the invidious contrivance in Section 6(6) d is repeated in the 1999 Constitution according to this scholar, it constitutes a calculated mischief.

However, the judiciary can exercise its power in relation to laws that were in force in Nigeria after 15 January 1966 to May 1999 where the provision of such law is seen to cause some manifest hardship on the citizen who upon encountering such hardship, challenges the provision of that law. The judiciary can call for repeal. In a nutshell, the judiciary cannot attain to issues that question the competence of the makers of those enactments that were in force in Nigeria after January 15th 1966 to May 1999, but it has thee jurisdiction to attain matters that flow from the provision of any of such enactments. The above represent a thorough analysis of the powers of judiciary in Nigeria as documented in the 1999 constitution of the Federal Republic of Nigeria.

A JUDGEMENT DEBTOR IS NOT A NECESSARY PARTY IN A GANISHEE PROCEEDINGS, YET IT LEAVES SOME QUESTIONS UNANSWERED

Written by

UBONG ENE (LL.B, B.L.)

ABSTRACT

Ganishee proceedings has been one of the most popular practices in our courts in Nigeria. Interesting enough, this comes after the court had given an executory judgement in an actual suit. Ganishee practice is a unique practice. Unique practice in the sense that it does not follow the usual process of bringing every other action. Resort can only be made to ganishee proceedings for the purpose of enforcing money judgement at the instance of the judgement creditor. It is a popular practice that a judgement debtor in a ganishee proceedings is not a necessary party. Is this a cast on the stone? Questions left unanswered. This article examines the position of the law currently, pointing to judgments of the courts and how some issues that has arisen from the reasoning that judgement debtor is not a necessary party in a ganishee proceedings and if the law has lighted a fire under.

KEYWORDS

GANISHEE PROCEEDINGS, JUDGEMENT DEBTOR AND NECESSARY PARTY

INTRODUCTION

GANISHEE PROCEEDINGS IN NIGERIA

Ganishee proceedings is a method of enforcement of judgment of the court. The court in the case of Gwede v. Delta State House of Assembly & Anor (2019) LPELR 47441 SC threw more light on this by stating that in ganishee proceedings, a judgment creditor who after diligent search identifies or knows that the judgment debtor has some money in possession or custody of a bank or other institution, may file an ex – parte application in Court with an affidavit in support praying the Court for an order Nisi ordering the garnishee to appear and show cause why he should not pay the amount due to the judgment debtor in his possession to him. After the grant of the order Nisi which I said is made ex – parte, the said order must be served on the garnishee, judgment creditor and the judgment debtor. It has to be noted that at the stage of the ex – parte application only two parties, i.e. the judgment creditor and the garnishee are involved in the proceedings. However, after the service of the order nisi on the judgment debtor, as the Court of Appeal would say in NAOC Ltd v Ogini (2011) 2 NWLR (Pt. 1230) 131@ 152-153, the subsequent hearing envisage a tripartite proceedings in which the three parties are represented.

To further buttress the above, the court in the case of BOGORO LOCAL GOVERNMENT COUNCIL vs. KYAUTA & ORS.(2020)LCN/14337(CA) explained that garnishee proceeding is in two stages: first the ex parte stage when it is simply between the judgment creditor/applicant and the Court, and then the second stage which is a tripartite one involving (1) the judgment creditor/applicant, (2) the garnishee who is called upon to show cause why he should not be ordered to pay over his indebtedness to the judgment debtor to the judgment creditor/applicant, and (3) the judgment debtor who Section 83 of the Sheriff and Civil Process Act requires be served the application at least 14 days before the hearing of the garnishee application.

The above aptly explains ganishee proceedings.

A JUDGEMENT DEBTOR IS NOT A NECESSARY PARTY IN A GANISHEE PROCEEDINGS

It is trite law that a judgement debtor is not a necessary party in a Ganishee proceedings. The question here is, who is a necessary party? The court in the case of Green v Green (1987) 3 NWLR Pt 61, 480 defined a necessary party as a party who is not only interested in the subject matter of the proceedings but who also in their absence, the proceedings cannot be fairly dealt with. See also N.B.A. v. Kehinde (2017) 11 NWLR (Pt. 1576) 225

The court in WEMA Bank v. Brastem-Sterr (Nig.) Ltd. (2010) 6 NWLR (Pt. 1242) 58 @ 76 amongst other cases have held that the judgement debtor is a mere nominal party in a Ganishee proceedings, hence the court may ignore his presence. Does it mean that his presence is not even relevant in a ganishee proceedings? Some questions arise from the above.

THE JUDGEMENT DEBTOR NOT BEING A NECESSARY PARTY, MUST HE BE SERVE WITH THE GANISHEE ORDER NISI?

Section 83(2) of the Sheriffs and Civil Process Act provides thus:

“At least fourteen days before the day of hearing a copy of the order nisi shall be served upon the Garnishee and the Judgment debtor.”

The court in the case of CENTRAL BANK OF NIGERIA vs. OODO & ANOR. (2020)LCN/14488(CA) held that it is settled that an ex parte application for Garnishee Order Nisi is in the form of an initiating process and therefore should be served on the Judgment Debtor as specifically provided for by law and as required for initiating processes.

The order Nisi being an initiating process, failure to serve same on the judgement debtor is quite fatal. In the case of HARRY VS. MENAKAYA (2017) LPELR-42363(SC) the apex Court held thus:

“The law is trite and well settled on the fact that service of the originating process or hearing notice constitutes the foundation on which the whole structure of litigation or appeal is built, and in its absence, the entire proceeding will be rendered void and any decision reached thereon is a nullity. Therefore, the issue of service of an initiating process, be it a Writ of Summons, an Originating Summons, a Notice of Appeal or a Notice of Petition, whether in election matters or in winding-up proceedings et cetera, is so central, fundamental and very germane to the proceedings springing or emanating from such processes. Service is the very pillar or foundation upon which any proceeding is built, before any Court no matter its status. In other words, the principle applies evenly whether before inferior Courts, Tribunals, or superior Courts of record…”

Can the judgement debtor be served through his counsel?

Generally, initiating processes are usually served on the party in person and not his counsel. Ganishee Order Nisi being an initiating process in this case should be served on the judgement debtor in person and not his counsel.

However, where personal service on the judgement debtor is proved abortive, application exparte can be brought for substituted service and service on the judgement debtor’s counsel will be service on the judgement debtor through substituted means. This was the reasoning of the court in the case of CENTRAL BANK OF NIGERIA vs. OODO & ANOR.(2020)LCN/14488(CA).

In a nutshell, the fact that the judgement debtor is not a necessary party in a Ganishee proceedings does not do away with the requirement of the law that he must be served with the Ganishee order Nisi. Of course service of the Ganishee order Nisi on the judgement debtor is what activates the jurisdiction of the court.

A JUDGEMENT DEBTOR NOT BEING A NECESSARY PARTY IN GANISHEE PROCEEDINGS, CAN HE BE HEARD IF HE FILES AN APPLICATION AND DEMANDS TO BE HEARD?

Despite the fact that Section 83(2) of the Sheriff and Civil Process Act has made the service of Garnishee proceeding on the judgement debtor a necessity, he is still a mere nominal party and so the Court can ignore his presence and whatever he may file. This conclusion flows from the decisions of this Court in the cases of UBA v. Ekanem (2010) 6 NWLR (Pt. 1190) 207 @ 220; Nigerian Maritime Administration and Safety Agency v. Odey (2012) 52 WRN 108; WEMA Bank v. Brastem-Sterr (Nig.) Ltd. (2010) 6 NWLR (Pt. 1242) 58 @ 76.

Is it a cast on the stone that a judgment debtor cannot be heard in garnishee proceedings?

The court in the case of Nigerian Breweries Plc v. Dumuje (2016) 8 NWLR (Pt. 1515) 534 addressed the above issue when the court per Ogunwumiju, JCA, that after the service of the order nisi on him, the Judgment Debtor may convince the Court by way of affidavit to discharge the order nisi, for instance, where it is proved that the judgment leading to garnishee proceedings, was obtained by fraud, non-service of the originating process of the main suit or any other vitiating factor based on which the trial Court has the power to set aside its own judgment. Also in cases of liquidation of the judgment sum which is being sought to be realized by way of enforcement where the Court refuses to discharge the order nisi and make the order nisi absolute, the Judgment Debtor, being a necessary party, can appeal as of right since the order absolute is regarded as a final decision of the Court.

The supreme court in a 2021 decision Elder Dr. Friday Sanni v Kogi State House of Assembly & Ors Suite Number: SC.1179/2019 while relying on the cases of Nigerian Breweries Plc v. Dumuje (2016) 8 NWLR (Pt. 1515) 534 and Barbedos Ventures Ltd v Zamfara State (2017) LPELR-42499, CA, held that that “It is the Court that will determine whether he should be heard or not. If the application of the judgment debtor before the Court is to reopen issues settled in the judgment, he cannot be heard. But if the application is to draw the attention of the Court to misleading facts put forward by the judgment creditor, there is nothing wrong with him being heard.

Hence, a judgement debtor though not a necessary party in a Ganishee proceedings can be heard. This will largely depends on the circumstances of the case and the discretion of the court.

CONCLUSION

To this end, we could come to a safe conclusion that a judgment debtor although not being a necessary party in a garnishee proceedings must be served with the Ganishee order nisi to activate and ignite the jurisdiction of the court. Aside being served with the ganishee order nisi, the judgement debtor also has a say in some circumstances, while the garnishee and garnishor has their way. This gives answers to the unanswered question in relation to the standing of the judgement debtor who without doubt is not a necessary party, that he is not just a party who is entitle to proper service, he could voice out and be heard too.

THE JUSTIFICATION OF THE RULE IN SMITH VS. SELWYN

The common law rule in Smith v. Selwyn opine thus “that where a civil wrong also constitute a felony, an action in crime must be instituted first before a civil action filed by the plaintiff can be heard”. For instance, where a tortuous act also amounts to a felony which is a criminal in nature, a civil action in tort should be preceded by a criminal prosecution under the law of crime. In other words, the rule in Smith v. Selwyn has it that if a head of action arise under civil and criminal law(felony) in the same offence, a civil action was not to be brought against the wrong doer until he has been prosecuted or that a reasonable excuse has been given for not prosecuting the wrongdoer as an accuse under the criminal proceedings. It is important to note that crime here is limited to felony.
Where this rule was not accurately observed, the plaintiff action was never given a ground to proceed and if in any case the matter was heard, there was every tendency of such civil matter failing.

This rule was followed in Nigeria in the case of Nwankwa v. Ajaegbu (1978) LRN 230. In this case, Ukatah J. Proffered an exception to this rule to the effect that if the prosecution of the matter rested in the hands of the Police, if the police decide not to prosecute, the plaintiff can go ahead to file a civil action against the offender or wrongdoer.
Be that as it may, the rule in Smith v. Selwyn has been abolished in United kingdom, Britain, Nigeria, etc.

In Nigeria, it is abolished in the view of the fact that the rule per se is a violation of the provision of the Nigerian Constitution and other statute including the Criminal Code Act and the Interpretation. Section 6(6)b, 17(2)e, 46(1) and 315(3) of the 1999 Constitution of the Federal Republic of Nigeria, guarantees the right of access to court for every person to institute an action for the protection and determination of civil rights and obligations.
In the case of Veritas Insurance Ltd. V. Citi Trust Investment Ltd (1993) 3 NWLR (Pt. 281) 349 @ 365, Niki Tobi JCA, in his unanimous judgement vehemently held that in view of the Nigerian Constitution, the Criminal Code Act and the Interpretation Act, this rule no longer apply in Nigeria.

For the purpose of clarity, section 5 of the Criminal Code Act has it clear that
“When by the Code any act is declared to be lawful, no action can be brought in respect thereof. Savings Except as aforesaid, the provisions of this Act shall not affect any right of action which any person would have had against another if this Act had not been passed…”.
The contention here is that the existence of the Criminal Code Act which creates several offenses does not limit the enforcement of other rights a person may have outside the Criminal Code Act.
It is also encapsulated in Section 8(2) of the Interpretation Act that
“An enactment shall not be construed as preventing the recovery of damages in respect of injury attributable to any act by reason only of the fact that the enactment provides for a penalty, forfeiture or punishment in respect of the act. “.
The effect of the above provision is that an act providing for punishments which is a brainchild of criminal law shall not truncate a person from seeking remedy in court for damages.

The court in the case of Tika Tore Press v. Umar (1968) 2 All NLR. 107 also refused to followed the rule in Smith v. Selwyn as such rule does not apply in Nigeria in the light of various statutes that are in force in the country.

Recently in the case of Alamieyeseigha V. FRN and ors (2006) LPELR-11670(CA) Per ADAMU, J.C.A. in addressing this issue asserted as follows
“I agree with and accept the respondent’s submission on the abrogation of the archaic rule in Smith v. Selwyn (1914) 3 KB 98 or its inapplicability in Nigeria for its being a “clog in or to the wheel of administration of justice”
Also, in the case of Abaver v.Alaga (2018) LPELR-46566(CA) Oho J.C.A reaffirmed the above position of the law vividly that
“the rule in SMITH VS. SELWYN is no longer good law in Nigeria as it has ceased to apply in Nigeria. The rule has also been abolished in Britain where it originated from, as it was abolished by the Criminal Justice Act 1967. Its non-applicability in Nigeria is also in view of the fact that it is a breach of the provisions of the Nigerian Constitution, 1999 (As amended) and other statutes such as the Criminal Code Act 2004 and the Interpretation Act 2004. Instructive in this regard are Sections 6(6) (b), 17(2) (e), 46(1) and 315 (3) of the 1999 Constitution of the Federal Republic of Nigeria”

Conclusion
In view of the provisions of the Constitution and other statutes in Nigeria, it is not worthwhile to toe the line of the rule in Smith v. Selwyn.
Apart from the sacred standing of our laws, it is equally unjust and unfair to stop a person from instituting an action in court to enforce his civil right merely because an outstanding crime or felony on the same commission or omission has not been tried beforehand. An aggrieved person will gain nothing in criminal prosecution (except appeasement which might not replace any loss suffered by the aggrieved or injured persons), in fact a criminal matter is a concern of the state at most. Whereas a civil action will make available a remedy that will be of interest to the aggrieved person ( damages, injunction, specific performance, etc).

ANATOMIZING THE POWERS OF THE JUDICIARY UNDER THE 1999 CONSTITUTION

The legal basis for the exercise of the judicial powers in Nigeria finds its original source under the constitution of the federal republic of Nigeria 1999. Section 6 creates superior court of records and empowers them to exercise judicial authority. The judicial is the third arm of government entrusted with the power to interpret laws made by the legislature.

In the 1999 constitution,[1] the types, organization, jurisdiction, functions and powers of the judicature are highlighted in section 6 and covered in details under chapter viii. The organization of the court is hierarchical or pyramidal. Section 6 (2) of the 1999 constitution vest the judicial powers in the court. This section provides that “the judicial power of a state shall be vested on the court to which this section relates, being courts established, subject as provided by this constitution for a state’’

Idigbe JSC in Brovic Motors Limited. And Anor. V. Wema Bank LTD[2] defined, judicial power to mean “the power to construct and apply the law.’’ It is important to note the distinction between judicial functions and judicial powers. While the former encompasses the role of the judiciary in resolving conflicts through resort to established rules, which can be exercised by non-judicial or quasi-judicial institutions, the latter is restricted to recognized judicial institutions, and is usually much wider than the general functions.[3] The judiciary as an independent organ of modern government is vested with the role of interpreting the law through the various courts established and doing substantial justice without fear or favour to all and exercising the judicial power vested in it[4]

Hierarchy of courts is often a creation of statutes which also to each hierarchy, commensurate power and jurisdiction. [5] Nigerian courts are basically of two categories, namely: the superior courts of record made up of the Supreme Court, the Court of Appeal, the Federal High Court of the state, The Federal High Court of the FCT, the High Court the state, Sharia Court of Appeal of the state, Customary Court of Appeal of the state; and other courts lower in hierarchy which are not courts of record such as magistrate court, District Courts, Area Courts, Sharia court, Juvenile Court and Court Martial or Military Court etc.

It is important to note that the lower court which are not courts of records falls under the courts that is established through the instrumentality of the provision of Section 6(5)j of the constitution which state as follows: “such other courts as may be authorized by law to exercise jurisdiction on matters with respect to which the national Assembly may make law’’ and also the provision of section 6(5)k of the constitution which in turn provides thus: “such other courts as may be authorize by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws”[6]

The power of the Judiciary in Nigeria of the Judiciary is contained in section 6(6) a, b, c and d of the 1999 constitution of the Federal Republic of Nigeria. Section 6(6)a, b, c and d provides accordingly as follows:

The Judiciary powers vested inaccordance with the foregoing provision

a) Shall extend, not withstanding anything to the contrary in this constitution, to all inherentpowers and sections of a court of lawb) Shall extend to all matters between government or authority and to any person in Nigeria, and to all action and proceedings relating thereto, for the determination of any question as to civil right and obligation of that person.
c) Shall not except as otherwise provided by this Constitution, extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution;
d) Shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law.

However, the power of the Judicial as regards section 6(6) c is limited. This section has to do with the enforcement of the provisions of Fundamental Objectives and Directives principles of State Policy provided for in chapter II of the 1999 constitution. Section 6(6) c. Provides clearly that: “the Judicial powers vested in accordance with the forgoing provisions of this section shall not except as otherwise provided by the constitution, extend to any issue or question as to whether any law or any Judicial decision is in conformity with the fundamental objectives and Directive Principles of State policy set out in Chapter II of this constitution.”

In essence, the provisions of this section is non justiciable to the extent of the constitution per se making room for it justiciability. This goes further to highlight that the judiciary has no power to act or enforce or attain to matters that falls under chapter II of the constitution, except the constitution permits them to do so. That is to say that the jurisdiction of the judiciary is ousted as far as Chapter II is concern by virtue section 6(6)c of the same 1999 constitution. The non justiciability of Chapter II of the constitution has been judicially confirmed in several legal holdings and judgements. One of such case is the case of Archbishop Okogie V. AG. Lagos state[7] where the courts held that:

while section is of the constitution makes it a duty and responsibility of the judiciary among other organs of government to conform to and apply the provisions of chapter II, section 6(6) c of the same constitution make it clear that in court has jurisdiction to pronounce any decision as to whether the any organ of government has acted or is acting in conformity with the fundamental objectives and Directive principles of state policy[8].

In giving precision to how the judicial power of the judiciary extends to the enforcement of the provisions in chapter II which is undoubtedly made non-justiciable in section 6(6)c of the 1999 constitution, Niki Tobi JSC in the case of Federal Republic of Nigeria v. Aneche and 3 ors.[9] Observed as follows:

In my view, section 6(6) c of the constitution is neither total nor sacrosanct as the subsection provides a leeway by the use of the words “except as otherwise provided by the constitution.” This means that if the constitution otherwise provides in another section, which makes a section or sections of chapter II justifiable, it will be interpreted by the court.

There are two ways by which the provisions of chapter II can be made justiciable in the light of the light of the exceptions contained in section 6(6) c.

First, when the constitution in it justiciable section directed that a particular section of Chapter II of the constitution shall be complied with in carrying out the provision of the section of the constitution. For instance, Section 147(3) of the 1999 of the constitution provides that any appointment under subsection 2 of this section by the president shall be conformity with the provision of section 14(3) of this constitution “in appointing the chairman and member of board of governing bodies of statutory corporation and government in which the government of the state has controlling shares or interest and council of universities, colleges and other institutions of higher learning, the governor shall conform with the provision of section 14(4) of the 1999 constitution.” Also while implementing the provisions of section 197(3) of the Constitution; compliance with section 14(4) of this constitution becomes mandatory, thus justiciable.

Second, where the constitution in it justiciable section empowers the National Assembly to implement the provision of Chapter II of the constitution via legislation. For example, Item 60 of the Exclusive legislative list under Part 1 of the Second Schedule to the 1999 constitution empowers the National Assembly to make law with respect to the “establishment and regulation of authorities for the federation or any part thereof…to promote and enforce the observance of the Fundamental and Directive Principle contained in the constitution’’

Commenting on the above, Justice Mohammed I. Uwais CJN (as he then was) observed that “the breathtaking possibilities created by this provision have sadly obscured and negated by non observance.’’[10] It was in this light that the supreme court held in Attorney General of Ondo State v. Attorney General of the Federation[11] that the court cannot enforce any provision of chapter II of the constitution until the National Assembly has enacted specific act as it is done with respect to section 15(5) of the 1999 constitution of the Federal Republic of Nigeria.[12] It is through the above process that the power of the judiciary will extend to cover the enforcement of the provision of chapter II as provided in section 6(6) of the constitution.

Furthermore, it is important to glaringly point out that the constitution openly denies the judiciary power in issues of cover under section 6(6)d of the constitution. This section provides:

The judicial power vested in accordance with the foregoing provision of this section shall not, as from the date when this section come into force extend to any action or proceedings relating to any existing law on or after 15^th January 1966 for determining any issue or question as to competence of any authority or person to make such law.

This section in effect states that the judicial power of the judiciary shall not extend to actions or proceedings that tends to question the competence of the person or authorities that actually made or involved in the making of the enactments or promulgations that were in force in Nigeria on or before the 15^th day of January, 1966. However, it is important to note that the powers of the judiciary in this section is only limited when it has to do with laws that where in existence in Nigeria from 15^th January, 1966 till 1999 when the 1999 Constitution and section 6(6)d came into force.Therefore, the judiciary will have the power to question or investigate into the competence of the persons or authorities who made or makes other laws in Nigeria from the date section 6(6)d of the 1999 constitution became operative.

However, Section 6(6) d has attracted the critical scrutiny of judicial warlords. In the case of Prince Mustapha v. Governor of Lagos State[13] Oputa JSC Echoed the view of Irikife JSC as h(as he then was) in Uwaifo v. AG Bendel State[14] in his search for wisdom behind section 6(6) d of the 1979 Constitution which is pari material with the same provision in the 1999 constitution, stated that the military regime at the end of their rul sought to hand down a Constitution in which they made certain that future administration would not be given free hand to dig up skeleton of any legislation which they were involved for scrutiny.

Obiozor[15] contended that it is unfortunate that the invidious contrivance in Section 6(6) d is repeated in the 1999 Constitution according to this scholar, it constitutes a calculated mischief aimed as emasculating the judiciary in the exercise of its interpretative authority under a constitutional democracy such as ours in which the rule of law is supreme.

However, the judiciary can exercise its power in relation to laws that were in force in Nigeria after 15^thJanuary 1966 to May 1999 where the provision of such law is seen to cause some manifest hardship on the citizen who upon encountering such hardship, challenges the provision of that law. The judiciary can call for repeal. In a nutshell, the judiciary cannot attain to issues that question the competence of the makers of those enactments that were in force in Nigeria after January 15^th 1966 to May 1999, but it has thee jurisdiction to attain matters that flow from the provision of any of such enactments.

The above represent a thorough analysis of the powers of judiciary in Nigeria as documented in the 1999 constitution of the Federal Republic of Nigeria.

[1] The 1999 Constitutional if the Federal Republic of Nigeria

[2] (1983) ISCNLR 296

[3] Osita Nnamani Ogbu, Modern Nigerian Legal System (CIDJAP Press, Enugu, 2007) 200-202

[4] Udosen Jacob Idem ‘The judiciary: the Powers and the Functions of the Magistrate in Nigeria’ (2015) Uyo Bar Journal 114

[5] In Britain the apex court is the Privy Council Of House of Lords, whereas in USA, India, Nigeria and Most other countries, its the supreme court.

[6] See section 6(5)j and k of 1999 Constitution of the Federal Republic of Nigeria

[7] (1982) 2 NCLR 337

[8] This case was decided under the 1979 Constitution and the provisions in question is in pari materia with that of the 1999 Constitution of the Federal Republic of Nigeria.

[9] (2004) 1 SCMP. 36 at 78

[10] M. I. Uwais ‘Fundamental Objectives and Directeve Principles of State Policy: Possibilities and Prospects’ in C. C. Nweze (ed.), Justice in Judicial Process (Essay in Honour of Honourable Justice Eugene Uba Ezeonu, JCA, Chapter 5, at pp. 179

[11] (2002) 9 NWLR (pt. 772) 22

[12] Through Item 60(a) of the Excusive Legislative List of the 1999 Constitution of Nigeria

[13] (1987) 2 NWLR (Pt. 58) 539 at 568

[14] (1983) 4 NCLR 1

[15] C. A Obiozor, The Constitutional Vesting of Judicial Power in Judicature in Nigeria- the Problem with Section 6(6) d of the Constitution of 1999 (2011) vol. 1NIAL Journal of Law And Development p. 228-230

Introduce Yourself (Example Post)

This is an example post, originally published as part of Blogging University. Enroll in one of our ten programs, and start your blog right.

You’re going to publish a post today. Don’t worry about how your blog looks. Don’t worry if you haven’t given it a name yet, or you’re feeling overwhelmed. Just click the “New Post” button, and tell us why you’re here.

Why do this?

Because it gives new readers context. What are you about? Why should they read your blog?
Because it will help you focus you own ideas about your blog and what you’d like to do with it.

The post can be short or long, a personal intro to your life or a bloggy mission statement, a manifesto for the future or a simple outline of your the types of things you hope to publish.

To help you get started, here are a few questions:

Why are you blogging publicly, rather than keeping a personal journal?
What topics do you think you’ll write about?
Who would you love to connect with via your blog?
If you blog successfully throughout the next year, what would you hope to have accomplished?

You’re not locked into any of this; one of the wonderful things about blogs is how they constantly evolve as we learn, grow, and interact with one another — but it’s good to know where and why you started, and articulating your goals may just give you a few other post ideas.

Can’t think how to get started? Just write the first thing that pops into your head. Anne Lamott, author of a book on writing we love, says that you need to give yourself permission to write a “crappy first draft”. Anne makes a great point — just start writing, and worry about editing it later.

When you’re ready to publish, give your post three to five tags that describe your blog’s focus — writing, photography, fiction, parenting, food, cars, movies, sports, whatever. These tags will help others who care about your topics find you in the Reader. Make sure one of the tags is “zerotohero,” so other new bloggers can find you, too.