Meaning of the Order of Non-Suit.

An Order of non-suit is a final decision in the sense that it terminates the proceedings in which it is made.

An Order of Non-Suit based on an issue raised suo motu by the court and decided without hearing parties is not a judicious exercise of the Court’s discretion.  See Egbuchu V Continental Merchant Bank Plc(2006) 8 NWLR (PT. 1513) P. 192.

Essence of an Order of Non-Suit and when will be made?

An Order of non-suit is usually made in the interest of justice and not for both parties. It decides nothing in respect of the matter in dispute between the parties.

It merely get rid of the pending action leaving the claimant at liberty to start de novo either in the same or subsequent suit. It is normally made when there is no satisfactory evidence to warrant the court to give judgement to either party. See Ikonne v Ezieme(2011) 11 NWLR. P. 536.

When will An Order of Non-Suit be made?

An Order of Non-suit will be made in the following circumstances:

1. Where the Plaintiff has not failed in toto or entirely to prove his case.
2. Where the Defendant is not in any event entitled to the Court’s judgment; and
3. Where no wrong or injustice to the Defendant would be caused by such order.

Duy of Court to hear Parties before making Order of Non-Suit.

By virtue of Order 37 Rule 1 of the High Court of Lagos State(Civil Procedure) Rules, a trial Judge ought to give the counsel to parties the right to make submission on the propriety of an order of non-suit before the court makes the order.

It is mandatory for the court to hear parties on the propriety of an Order of non-suit before making the Order.

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Consequential order is an incidental order following from the judgement. it is essentially one which makes the principal order affective and effectual or which follows necessarily as been incidental to the principal order in the matter.

Where the principal order sought is refused, an incidental order cannot be rightly made as there will be no principal order on which such incidental order can stand or lean on.

Consequential order denotes an order following naturally in terms of consistency and giving effect to the main judgement.

Nature and purpose of consequential order and when Court will make.

A consequential order is an order founded on the claim to the successful party. A consequential order is one which is not merely incidental to a decision properly made but one which is mainly to give effect to that decision. See Uwaechina v Okeke(2015) 14 NWLR(Pt. 1478) P.108.

A consequential order is an order that gives effect to a judgement. It gives meaning to the judgement. It is traceable to or flows from the judgement sought and is made consequent upon the relief claimed by the plaintiff.

A consequential order must be incidental to or flow directly and naturally from reliefs claimed. it is an offshoot of the main claim and it owes its existence to the main claim it gives effect to the judgement already given.

Whether courts can make consequential order for payment of specific some not proved.

It would be wrong for a court to order the payment of a specific sum of money as a consequential order when there is no evidence to support the sum some ordered to be paid. consequential order should not be given for an unproven claim. Eze v Gov Abia State(2014) 14 NWLR(Pt. 1426) P.194

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Interpleader Action: Introduction

At the end of every court proceedings, court will give it’s judgement. The judgement of court opens door for rights and benefits passed to the person in whose favour the judgement was given.

Judgement of court remains In trying to enforce a judgement, different modes may be used where a sheriff seizes or intends to seize goods by way of execution and a person other than the judgement debtor, claims them, the sheriff institute the proceedings to determine whether the property belongs to the judgement debtor or to the third party claimant.

What is Interpleader Action?

Interpleader is a proceeding by which a person, who does not himself claim the property, can protect himself from legal proceedings by calling upon the claimant to interplead, that is claim against each other so that the title to the property , debt etc may be determined.

Interpleader summons procedure is applicable where the goods and/or chattels of a person not named on the writ of fifa is attached and the person comes forward to claim his property.

In such a proceeding the claimant is deemed to be the plaintiff and the judgement creditor the Defendant. In such proceedings, the burden of proof is on the claimant to establish title to the property he claim.

See Olatunde v O.A U(1998) 5 NWLR.( PT.549) 178. SEE ALSO OBUMSELI V UWAKWE (2019) 11 NWLR (PT. 1683).P.208

Interpleader proceedings is regulated by the Sheriff and civil Process Act and the Judgement Enforcement procedure Rules. By order VI Rules 1,2(1), 2(2), 4(1)(2),6(1)(2)(3) of the Judgement you Rules, any claim in respect of attached property shall be made to the bailiff holding the writ or to the sheriff.

The sheriff shall give information to the Registrar of the court for the division where the property is located.

Upon receiving the information, the Registrar shall caused to be issued to the Plaintiff (judgement creditor) form 42, and shall also issued to the claimant form 43.
If the plaintiff or claimant does not admit to the claim, the sheriff shall apply for issuance of summons in accordance with the provisions of section 34 of the Act.

Upon the application by sheriff, the Registrar shall enter interpleader proceedings in the book of the court and fix a date for hearing and issue to the parties the necessary summons and forms in accordance with the Act.

On the part of the claimant, he is expected depose to an affidavit in support of his claim with exhibits where necessary. The exhibit may include three copies of particulars of his property attached..and the grounds upon which he claims them. The claimant shall include in his particulars his full name, address and occupation.

There is no where it is stated that court must hear oral evidence of parties or that hearing must be by affidavit evidence alone. In other words, there is no special procedure for interpleader proceedings. Court can adopt any procedure it deems appropriate.

Burden of Proof in Interpleader Action

In Interpleader summons procedure, the claimant is deemed to be the plaintiff and the judgement creditor the Defendant.As such, the onus of proof is on the plaintiff to establish title to the property he claims. See Kala v Potiskum(1998) 3 NWLR (PT.540) 1

Types of Interpleader

a. StakeHolder Interpleader

This is where a person who is under liability for a debt over which he has no personal interest and which is subject to competing claims and over which he is likely to be sued or has already sued will seek reliefs by taking out am interpleader.

The purpose of StakeHolder Interpleader is to avoid paying the money to the wrong persons. In this kind of action, the court determines the right person that the debt will be paid to.

If a debtor doesnt take out Interpleader action, he may end up paying the money twice to the person competing for the debt.

Example: Mr Peter has a building, occupied by Mr. John. Mr John is in arreas of rent for 2 years. Now, assuming Mr. Peter is dwade, and two sons of Mr. Peter comes to Mr. John separately, for the arreas of rent.
Mr. John can commence Interpleader action to determine Who he should pat the money to.

In an action for StakeHolder Interpleader action, for the applicant to succeed, he must established:
That he claims no interest on the subject matter in dispute other than for charge of costs.
That he has not connived or colluded with any of the claimant.
That he is willing to pay or transfer the subject matter to the party as the court may direct.

b. Sherriff Interpleader

In this type of Interpleader, the ownership of the property in which execution is levied or about to be levied is challenged by a third party, on the ground that the property belongs to him and not the judgement debtor.

The Court call the judgement Creditor who attached the property in dispute and the third party laying claims to the property to substantiate their claims.

Where the third party establishes ownership, the court shall release the property. But where the third party fails, the court shall order the sale of the property that was attached.

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Divorce in Nigeria, is one of the controversial topics in Nigeria. We have assembled most of the questions often asked about divorce and legal answers to them.

First,Who are Parties to divorce proceeding?

The parties to divorce proceeding are the Petitioner and the Respondent. The person who filed the petition for divorce is the “petitioner” while, the Person sued is the “Respondent”.

In rare cases, where the petitioner alleges adultery, a third party may be joined as co-respondent– the party who is alleged to have committed the adultery with the other spouse.

What are Divorce Papers in Nigeria?

The divorce papers include:

• The notice of petition,
• The petition for dissolution of marriage,
• Verifying Affidavit,
• The notice of Trial duly signed by the Registrar,
• The request to set Suit down for Trial,
• The Registrar’s Certificate that suit is set down for trial.
• A copy of the certificate of marriage attached to the application.

How do you get divorce in Nigeria?

To get divorce in Nigeria, you need the services of a lawyer. So, you have to hire a lawyer who will file the legal processes required to secure your divorce. It is not what a lay person can do.

When you hire a lawyer, your lawyer will file the petition for dissolution of marriage together with its accompanying processes.

The processes aforesaid, will be served on your partner. Your partner will hire his own lawyer to defend him or her. In rare cases, your partner will just ignore the divorce processes. In this case, the divorce is uncontested.

What is the Ground for dissolution of marriage under Nigerian law?

In Nigeria, there is one ground for dissolution of marriage. As stipulated by section 15 of the matrimonial causes Act, the only ground for dissolution of marriage in Nigeria is that the marriage has broken down irretrievably.

The factor upon which court will infer that the marriage has broken down irretrievably are also stated in the said Section 15 of the Act and there are:

• Lack of consumation
• Adultery
• Irresponsible behaviour
• Living apart for 2 years and the Responsdent does not object to the divorce
• Living apart for 3 years or more
• Presumption of death after 7 years without seeing or hearing from one’s spouse.
• Dessertion.

What are the requirement for divorce in Nigeria?

The first requirement is that there muat be a ground upon which the divorce is sought. The ground gas been stated above.

Secondly, the Marriage must have lasted for more than 2 years. This is often referred to as the two year rule. The only way for spouses to get divorce when their marriage has not lasted up to 2 years is if any of those conditions stipulated in Section 15 and 16(a) and (b)  occurs.

How to get a quick divorce in Nigeria?

People usually refer to uncontested or easy divorce as quick divorce.

There is nothing like quick divorce in Nigeria. No divorce is quick. It is immaterial that the divorce is contested or uncontested. Both contested and uncontested divorce take the same procedure.

The factors that can hasten your divorce are: The availability of judges, lawyers, money, and non-contentious issues.

What are the stages of divorce in Nigeria?

Divorce in Nigeria comes in different stages:

• Pre-Hearing Stages
• Hearing Stages and
• Post Hearing Stages

The pre-hearing stages include the time, you meet lawyer in his office for the first time, the period of the interview, the filing and service of processes on your spouse, the mentioning and pre-trial stage.

The hearing stage is the stage where parties give evidence in Court. In Nigeria, parties file their evidence as witness statement on Oath. They adopt same in court as their evidence. After the adoption of the witness statement on oath, the witness will be cross-examined and discharged.

The Post Hearing stage, includes the filing and adoption of final written address, and Judgement of Court.

How long does it take to divorce in Nigeria?

When it comes to duration of divorce, there are a lot of factors that can determine how long your divorce may last.

First, it depends on whether the divorce is contested or not. Uncontested divorce in Nigeria, can last upto 6 months but contested divorce in Nigeria can last up to 1 year or more.

How long divorce last also depends on the availability of judges and the lawyers of both parties. Supervening circumstances like strike or holidays can also prolong the duration of divorce proceedings.

Who does Court award Custody of Children?

When it comes to custody of children, there are a lot of factors court consider before awarding custody to either spouse.These factors include:

• The age of the Child
• The financial capabilities of the Child
• The General welfare of the child
  Court will always give premium to the general welfare of a child before deciding who to award custody in terms of the moral upbringing, the educational need of the child and the psychological need of the child.

Thus, if the child is drawn to a particular spouse
if thechild is so tender that maternal care is most preferred. if the child’s education will be hampered if he changes school or location
Which of the spouses has the financial strength to take care of the child. In determining this, the court may ask the parties to state their means of livelihood under oath.

How to file for divorce in Nigeria

To file for divorce in Nigeria, you need to hire a lawyer.(You can as well call on one of our lawyers in Courtsarena using any of this lines: 08148970746. 07062392662. Barr.Ngwu Michael) Your lawyer will file the divorce processes for you.

Do you need to appear in Court to get Divorce?

Yes. You will be required to come to court during the hearing stage. It is immaterial that your partner is not contesting the divorce. You will be still be required to come and adopt your statement on oath and where the suit is contested, you will be cross-examined. As regards the other stages of divorce, your presence can be dispensed with. But if you chose to aappear, it is still allowed.

How long after divorce can you remarry in Nigeria?

Nigerian laws are silent on issue of how long one can stay after divorce for you to remarry. What is certain, is that you cannot remarry when the divorce suit is still pending, and you cannot remarry when the order nisi has not been made absolute.

But once the order nisi has been made absolute, you can contract a new marriage. The order nisi last for and it is the first order made which takes effect immediately after judgement of court.Within the time the order nisi is made,

How does Divorce cost in Nigeria?

Divorce in Nigeria is relatively cheap compared to its cost in Western Countries. In Nigeria, divorce cost as much as 600, 000. Lawyers Charges takes more than 90% of the total cost, while the remaining 10% goes to cost of filing processes and the bailiff charges.

For more on Cost of divorce in Nigeria, read our article on cost of Divorce in Nigeria.

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There are several duties of lawyers to their Clients. Some of these duties are imposed on a lawyer as a matter of practice, while some are inferred from the fiduciary nature of the relationship between a lawyer and his client.

A lawyer while engaged in the business of representing his client owes his client the the following duties:

1. Duty to Accept Brief.

A lawyer’s first duty towards his Client is the duty to accept brief from the Client. A lawyer is under duty to accept brief relating to the area in which they practice, provided the right fee is paid, except where the otherwise permit s lawyer not to accept.

2.Duty of Privilege and Confidence to Client

All oral or written communications made by a client in the normalcourse of professional employment are privileged and cannot be communicated or revealed to a third party by a legal practitioner.

The Scope of this duty is quite wide. The duty extends to the employees, associates and other person’s whose services are utilized by the legal practitioner.

A lawyer is also under obligation not to communicate upon the subject matter of controversy or negate, or compromise the matter with the other party who is represented by a lawyer he can only deal with the lawyer.

A lawyer must also not use the confidence or secret of his client to the advantage of himself or of a third party.

However, there are exceptions to this duty. That is, there are circumstances where the law allows a lawyer to disclose the secrets of his client.

A lawyer may reveal with the consent of the client the secrets bestowed on him by the client.

When the confidence is about the commission of a crime, a lawyer May disclose the secret for the purpose of forestalling the commission of the crime

A lawyer may also reveal privileged communication when it is necessary to recover jos professional fees.

A lawyer may also reveal privileged information when it is done for the purpose of defending himself or associates against an action of wrong conduct or negligence.

3.Duty not to withdraw from Employment

It is the duty of a lawyer not to withdraw from employment once the lawyer assume to represent a client. The only ground for a lawyer to withdraw is when the withdrawal is predicated on just cause.

Such just cause might include:

• Where there is conflict of interest between a lawyer and his client.
• Where the client insist on an unjust or immoral course in the conduct of his case Example. Where a client wants his lawyer to bribe a judge. If he persists in pressing a frivolous case the lawyer’s advice, the lawyer can withdraw.
• If the client deliberately disregard an agreement or obligations to pay fees or expenses.

A lawyer who is withdrawing from employment should give reasonable notice to the client to enable him get another lawyer.

If the withdrawal occurs after full payment of fees, the lawyer should return the part of the fee that has not been earned.

4.Duty of Dedication and Devotion to the cause of the Client.

A lawyer is duty bound to devote bhis attention, energy and expertise to the service of his client and subject to any rukeor law to act in a manner consistent with the best interests of his client.

In doing this, a lawyer is under obligation to observe the following:

Consult his client in all questions that are not within his discretion.Example Settlement out of court, granting concessions to the opposing party.
Keep the client informed of the progress of the. ase and important development.

5.The Duty to represent his Client within the bounds of the law

A lawyer first duty is to uphold the law. This duty supercedes his duty to his client. Therefore, a lawyer must refuse to participate or aid conducts 5hst are unlawful.

In his represention of his Client, a lawyer keep strictly within the law not withstanding any contrary instruction from the client. Where the client, insist on perpetrating illegality, he must withdraw his employment.

To represent client within the bounds of the law implies that a lawyer must not file a suit, assert a position, conduct a defence, delay trial or take over action that is meanrt to annoy , harrass or maliciously injure another person.

6. Duty to avoid Conflict of Interest.

A lawyer while representinh his Client should not allow his personal, proprietary, financial or business interest to conflict with the interest of his Client.

Where there is such conflict of interest, a lawyer is duty bound to disclose such to his client timeously.

What amount to conflict of interest depends on the circumstances of each case. It is conflict of interest for a lawyer to acquire proprietary interest in the cause of action or subject matter of litigation, of which the lawyer is representing the client.

The duty to avoid conflict of interest also include, duty to not to accept a brief where the subject matter is likely to affect the interest of an existing Client unless the two parties consent to such.

A lawyer shall also not appear as a counsel for a client in a matter where he himself is a party.

However, the duty to avoid conflict of interest, is not extended to where a lawyer acquire a lien granted to him byaw for the purpose of securing his fees and expenses or contract with a client for a reasons contingent fee in a civil case.

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First, What type of divorce do you want?

Just like many States in United States, divorce in Nigeria could be contested or uncontested.

In Nigeria, Divorce is uncontested where either spouses files the petition for dissolution of marriage and the said petition is served on the other spouse, and the other spouses neglects or fails to file answer to the petition and cross- petition.

In this way, the facts alleged in the petition remains unchallenged and the petitioner could get all the reliefs proved in the petition for divorce.

In Nigeria, as far as uncontested divorce is concerned, there is no pre-suit agreement between the spouses and couples do not file settlement papers as applicable in Colorado and other States in USA.

Even where your partner elects not to contest the divorce, he or she can only abstain from filing anwers and cross-petition. He or she can as well, abstain from putting up appearance in Court during the pendency of the divorce suit.

In situation where a spouse served with the petition abstains from defending the divorce suit, the suit is uncontested, and default judgement may be given in his or her absence.

Though, this rarely happens. This is because, even where the suit is undefended, the petitioner is still expected to prove his or her case on the preponderance of evidence.

However, divorce is contested in Nigeria, where the other spouse upon being served with the petition, disagrees on the facts alleged in the petition, and the reliefs sought therein.

In this case, the party contesting the divorce is expected to file answer to the petition and cross petition. While the party who filed the petition, upon being served with the answer to the petition, will file Reply to answer to the Petition and Cross Petition.

Secondly, You Can only Get divorce in Nigeria if your marriage was Contracted in Nigeria.

In Nigeria, only marriage between Nigerians contracted in Nigeria, can be dissolved by a Nigerian Court. Hence, for you to get divorce in Nigeria, you must be married under Nigerian law or native law and custom.

Thirdly, there is only one Ground For dissolution of Marriage.

A party can present petition for dissolution of marriage only on one ground that the marriage has broken down irretrievably.

The circumstances in which the court will hold that a marriage, has broken down irretrievably include:

• a Lack of consummation.
• Adultery when the petitioner finds it intolerable.
• Respondent’s irresponsible behaviour such as habitual drunkness, intoxication, convicted for crime(within five years) or left the petitioner without reasonable support, convicted for attempted murder of petitioner or inflicting grievous harm.
• Where the spouse deserts the other for a very long or unreasonable period without any explanation.
• Living apart from two years and the Respondent does not object.
• Living apart for three years.
• Failure to comply with decree of restitution of conjugal rights.
• Presumption of death after 7 years.

Fourthly, There is two Years Rule

Under the Matrimonial Causes Act, Where the marriage is less than 2 years, the leave of court must be sought before instituting proceedings. The implication is that, couples cannot file for divorce within 2 years of their marriage, except by leave of court or except if the ground upon which the application for dissolution of marriage is sought is among the grounds stipulated under section 15(2)(a) or (b) and 16(1) a

Now, Do you want Statutory divorce or Customary divorce?

In Nigeria, there are majorly, two types of marriage: Statutory marriage and customary marriage (Islamic marriage inclusive).

The type of marriage you Contracted determine where you file your divorce application. Your divorce can either be in High Court or in Customary Court.

Customary divorce is available for couples who contracted only customary marriage- marriage under the native law and custom of a particular place in Nigeria.

Where you married your spouse under the native law and custom of a particular place, and you and your spouse were not married Statutorily, your divorce application will be filed at Customary Court.

Alternatively, you can use non-judicial means to divorce your partner. The non-judicial means include: Taking your partner back to her parents house and demanding the refund of the bride price, in the case of the woman, she can return to her father’s house and inform her husband that she is no longer interested in the marriage.

Using judicial means of dissolving customary marriage, any person who desire to dissolve his or her marriage customarily, shall file petition for dissolution of the marriage at the customary court registry of the place where the marriage was contracted.

Customary marriage can also be dissolved by non-judicial means such as when either of the spouses abandons the other after informing him or her that she or he is no longer interested in the marriage, or when the bride price is refunded.

How to dissolve customary marriage varies from place to place in Nigeria.

However, Statutory divorce is available for couples who contracted marriage under the Act- That is marriage under the Marriage Act or what is commonly referred to as “Court marriage”.

By virtue of the Matrimonial Causes Act, only the High Court Has power to dissolve marriage under the Act.

To get divorce in High Courts(for those who contracted Statutory marriage) in Nigeria, Follow the Steps below:

Hire a lawyer: In your divorce journey, you don’t know whether your divorce is going to be contested or not. Even if it is not going to be contested, you still cannot go through the process of divorce in Nigeria, without the aid of a lawyer.

The process is rigorous and a lot of legal documents are involved that a non- lawyer wouldn’t know how to prepare them.

Your lawyer files the petition.

Divorce application in Nigeria is commenced by way of petition. The notice of petition can be filed in any High Court in Nigeria regardless of the State where you contracted the marriage.

The said notice of petition will be accompanied by:

• the petition for dissolution of marriage,
• Verifying Affidavit,
• The notice of Trial duly signed by the Registrar
•  The request to set Suit down for Trial
•  The Registrar’s Certificate that suit is set down for trial.
• A copy of the certificate of marriage attached to the application.

Serve the Petition and accompanying processes on Your partner.

In the Petition filed, you are the Petitioner and your spouse will be the Respondent. After filing, a copy of the petition will be served on your partner through the bailiff of Court.

When it comes to Service of Process, your partner can be served by either personal means or substituted means. Personal means of serving implies that the bailliff will go handover the copy of the petition to your partner directly and he or she will acknowledge receipt of same.

But where your partner is unavailable or cannot be reached to affect the personal service, he or she can be served by substituted means. Nigerian law allows for service by pasting the process at the last know address of your spouse or any other place as the order of court may direct. This means of service requires leave of Court.

Your partner will file Answer to the Petition and Cross Petition where he or she desires to do so.

An answer is filed by Respondent- a person sued in the divorce suit. If an answer is filed, it means the divorce is contested. A Respondent who desires to contest a divorce has 14 days to file answer.

But if he or she does not file same within 14 days frrom the date the Respondent was served with the petition, it means the divorce is uncontested. Though, in rare cases, your partner’s lawyer may file out of time prescribed by rules of Court with leave of court.

In an answer to the petition, the Respondent, may where a petition contain allegation of facts, allege that he does not know and cannot admit the truth of the fact alleged in the petition, he can as well allege additional facts.

File and Serve the Reply to Petition and Answer to Cross Petition.

This is the job of your lawyer, and he will keep you informed on when you are served with answer from your spouse.

Setting down the Suit for Trial

Having filed all pleadings, including petition, answer, reply or rejoinder(if any) the petitioner’s counsel is expected to request to set the suit down for trial.

Under the Matrimonial Causes Act, This is done by filing FORM 31 in case of undefended suit and Form 32 in case of Defended suit which must be signed by the counsel. Upon the form being filed, the Registrar shall issue a Notice of trial as in FORM 33.

But in Practice, At the Close of pleading, the Suit is set down for Mention.

At the close of filing of processes or at the expiration of the time prescribed by rules of court for your spouse to file answer to the petition, whichever that comes first, the suit will be set down for mention.

At mention Stage, your lawyer will inform the court that the matter is coming up for the first time, and that parties have exchaneged pleadings. Your lawyer may also inform the court that your spouse is yet to file answer in defence of the suit.

Assuming the petition and answer have been filed and served by both of you, the court will adjourn for Pre-trial conference and your lawyers will file the necessary forms.

The pre-trial stage can be waived on agreement of both counsel for the petitioner and Respondent. But the pre-trial forms must be filed. Where it waived the matter will proceed to hearing. But if it is not waived, the parties will adopt their various forms and court will adjourn for hearing.

Hearing.

At hearing, the petitioner will give evidence first. In Nigeria, the frontlaoding system requires that witnesses file their statement on Oath. The witness statement on Oath constitute evidence of parties. Parties only come to court during hearing to adopt it and be cross-examined.

Hearing of the petition must be in open court, though court may order the exclusion of persons who are not parties or legal advisers during 5he hearing or part of the hearing.

Adoption of Final addresses.

Once the court hears both parties, the court will adjourn for filing and adoption of final written address. Sometimes, court will allow 21 days from the date the date the hearing ended for parties to file file their addresses.

Judgement.

After Court have heared both side, court gives it’s verdict and makes final order as relates to property, dissolution, custody of children, visitation schedule, maintenance (alimony) etc.

In dissolving the marriage, the court will make order nisi which last for a period of 3 months after which it may be made absolute.

A party is entiled to appeal against a decree nisi within 3 months as of right. But if he fails to appeal against a decree nisi having time opportunity to do so and the decree nisi is made absolute, then the right to appeal ceases. Once an appeal has been duly filed against a decree nisi, it acts as a stay to making an order of decree absolute.

As long as there  is a valid appeal against a decree nisi, it will not become absolute except at the expiration of 28 days from the day on which the appeal is determined or discontinued.

A decree nisi shall not also become absolute where there are children of the marriage who are under the age of the 16 years at the date of the decree nisi unless the court is satisfied that proper arrangements have been made for the welfare, advancement and education of the children.

A decree nisi shall not become absolute unless the court is satisfied that there are special circumstances that warrant the decree nisi being made absolute.

A decree nisi shall not become absolute where either the parties to the marriage has died before the order is made absolute.

A decree nisi may be rescinded by either of the parties before it becomes absolute upon the application of either part or where the court is satisfied that there is a miscarriage of justice.

Where a decree nisi becomes absolute the Registrar shall issue a certificate in Form 40 and by virtue of Section 33 of MCA, a party to the marriage where a decree of absolute had been obtained can marry again as if the marriage had been dissolved by death.

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How to become a Successful lawyer: What you should know.

Being a lawyer and being a successful lawyer are entirely poles apart. You become a lawyer the day you are called to Bar. What you do afterwards determine whether you are going to be a successful lawyer or not.

It will also determine whether the society will view you as having succeeded in the legal profession and in life generally or not.

Being a successful lawyer also depends on your mindset and what you consider to be success.

The road to successful legal life is not an easy one. Some lawyers end up becoming distinguished members of the Bar like Senior Advocate”.

Some end up as lecturers and professors in reputable universities. Some lawyers end up becoming renowned magistrates, Judges and justices of Superior Courts.

Some lawyers as well work Successfully in different government agencies as legal officers, while some are employed as legal advicers of different top companies and corporations.

Regardless of where you intend to be, one thing is certain. “You want to be successful in the legal profession”

Life of a junior lawyer and Senior Lawyer are not same.

Immediately after your call to Bar, you are deemed to be a junior lawyer for up to 7 years post call in some jurisdiction like Nigeria. During this time, a junior lawyer attaches himself in a senior lawyer’s office to get more knowledge and experience, to be able to survive the storm of law practice.

During this time, you practically depend on your principal for upkeep money. Some chambers pay insignificant sum to their juniors as salaries, while some law offices don’t pay at all.

Whenever you go to court, you will be given little token from the appearance you made in court. Life goes on. This is why most junior lawyers cannot afford a car of their own, until they start having their personal briefs.

The greatest need of a junior lawyer is money and experience.

Chosing a law firm is an important aspect of a junior lawyer’s life. While it is good you chose a reputable law firm, it is also good, you consider the financial capacity of the law firm.

Consider also the case volume in the law firm, the number of lawyers in the office. The number of lawyers in the office determine whether you will be given brief to handle or not, You may end up escorting other seniors to court without any role to play.

You need a suitable law firm that can take care of you financially and give you the exposure you need. You need the freedom to go to court and test your advocacy skills.

Make sure to keep your Reputation spotless.

Never put yourself in a position where you will be charged or accused of felonies, midemeanor, or even a simple offence. Imagine a lawyer being accused of raping a 12 year old girl, what impression do you think potential client will form of you?

Never you be accused of misappropriation of money or negligence in the course of your representation of a client.

An allegation of any type whether true or not, will jeopardize your career. Put your reputation first, before you speak, or act.

Always have alternative means of livelihood.

As I said before, unless you are born into a wealthy family, you are going to struggle financially as a junior lawyer. The money you will be getting, won’t be enough to settle your bill and take care of your beloved ones.

You must find a business to venture into. Though, in some jurisdiction, some professional Rules restrict lawyers from going into the business of buying and selling, but you can register a business and employ others to run it for you.

Again, learn a skill. Digital skill preferably would assist you. There are lawyers who are doing well in the blogging arena, digital marketing, affiliate marketing, crypto or Fx trading etc. You can make a living through digital skill.

When you have alternative means of livelihood:

• You won’t be in a haste to accept any bidding of a client. You will be able to maintain a standard charge.
• You will always be in charge of negotiation because you are not afraid to work away.

You need to think About acquiring more knowledge and skill.

In one of the things you can do after law school, we noted that you can go for your master and PH. D, if you have the financial power to do that. You can go for your master especially if you are dreaming to become a lecturer. With your master, and Doctorate degree, you are prepared to get your dream teaching job.

You cannot be a successful lawyer, unless you have a social skill.

A lawyer’s life is centered around people. The more people you know the more chances of having briefs. But if you are not social, no one will know you are a lawyer, and you will die with your knowledge.

Knowing people is not enough you must have skill.

People can easily come to you, knowing that you are a lawyer. But your display of expertise and professionalism will keep them. It will equally make them to recommend their friends to you, because you have earned their trust. This is how your client base will grow.

Every senior lawyer, started from the grass root to cultivate this habit and eventually became popular.

There are personal qualities you need. We actually highlighted this in our qualities of a good advocate. Most of this qualities include:

• the ability to listen
• the ability to read and make reseaches, analyze facts
• the ability to speak fluently and meaningfully etc.

You need a Car.

As surprising as this may sound, legal profession is the most competitive profession in the world. The way you carry yourself as a lawyer matters. This reflect in your dressing, your comportment, and your involvement in societal issues.

But above this, you need a car. Trekking as a lawyer is bad for business. In the same way, entering public transport is bad as well.

Consider a lawyer who treks and a lawyer that goes to court on venza. If you are a client, who would you approach when you have a serious legal problem?

A car is an asset to a lawyer. There is this invincible respect you command from a client when you arrive in court with car. It shows the class of lawyer you are. It speaks for you even before the security agencies.

Take Care of your Health

You need quality food and exercise to be mentally and bodily fit. Rather than spending your money on hospital bills and drugs, you need to spend money on yourself. Eat, work and sleep, that you may not breakdown.

Stick to your Faith

A lawyer’s life is centered around disputes. As much as there are factors that a man can determine, there are factors that a man cannot control.

One of the fundamental things you need first, is the gift of life and good health. Both are gift from God. While you hope to be successful, hold firm your religious faith. Pray to God for life, pray for good health and wisdom to succeed in your chosen career.

Whether you like it or not, there are two forces that hold the world. Whatever you belief in, hold to it. There are jealousy associated with legal profession. With God, you will overcome.

The bitter truth

The bitter truth is that you must not practice law. Some persons are born with the advocacy skills. Some persons are passionate learn it. Law practice is all about passion. if you are not passionate about practice, you may consider other things that you are passionate about.

You will surly find fulfillment going after your dream of singing, dancing, writing, etc than wasting your life in profession that you are not going to do well.

Conclusion

Regardless of your high expectations in the profession, am sure you want to succeed in legal profession, not minding the level of competition in the labour market, and not Minding the societal expectation.

To me, I just want to be a sound lawyer, sound in reasoning, sound in argument, fluent in speech, convincing by my dressing and representation. This is what I considered to be part of success.

I also wish to make a living from the profession I have passion for.

Success is a personal stuff. I trust you have all the qualities in the world to succeed, only if you are successful.

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Third Party Proceedings: Introduction

In every civil action, there is a plaintiff and there is a Defendant. The Plaintiff is the one who instituted the action while the Defendant is the one sued.

There could be many plaintiffs in a suit and there could be many Defendants in a suit as well.

However, in a civil suit, circumstances may warrant a Defendant to sue another person in an already pending suit where he is the Defendant. The Defendant becomes a plaintiff to someone else who he wishes the court to join in the suit.

It is not only the Defendant in a suit that can join a third party in a suit. The plaintiff can also join a third party as a Defendant to a counter claim. This is how third party proceeding works and detailed fact about this proceeding are discussed below.

What is third Party Proceedings?

It is an action in an already pending action, commenced by the Defendant (or by a claimant who is a Defendant to a counter claim) wherein a third party notice is issued and served on the third party, together with a copy of the originating processses, to appear in court and defend the suit at the instance of the party serving it

In this procedure, a defendant  in a suit claims to be entitled to relief or indemnity from a third party or that such third party may bear eventual liability and so he applies for a joinder of such third party to enable him prosecute another action between himself and the third party in the same action between himself and the plaintiff. See Bank of Ireland v. Union Bank OF Nigeria Ltd (1998) 7 SCNJ 385.

Third party proceeding is a special type of proceedings. It favours a defendant only or a plaintiff who has become a defendant by counterclaim.

The essence of this is that the Defendant believes that the outcome of the judgement should affect him and the third party he wishes to join.

The court in the case of  P.P & P (Nig) Ltd v Olaghere( 2019) 2 NWLR PT.1657. P.549 on third party proceedings held:

“It is an independent of the main action in which they are instituted. The service of a third party notice does not make the third party a Defendant in the main action,.The third party is liable to the Defendant and not to the Plaintiff. That is, he is a Defendant of the Defendant”.

The summary of this proceedings is that the Defendant is answerable to the suit of the plaintiff while the third party is answerable to the claims of the Defendant. Hence even where the main suit has been determined, the third party proceedings can continue.  See Total Nigeria Plc v Delmar pet.co Ltd.(2003) 7 NWLR(PT.819) 314. See P.P & P (Nig) Ltd v Olaghere( 2019) 2 NWLR PT.1657. P.549

Circumstances that may warrant third Party Proceedings

1. Where the Defendant claims the involvement, contribution of a third party to the cause of action or indemnity from the third party. Example.In accident cases where the Defendant brings the insurance company as third party.

2. Where the Defendant is entitled to same reliefs claim by the plaintiff.

3. Where from the nature of the reliefs sought by the Plaintiff, the relief sought by the Defendant is connected to the same original subject matter.

Forinstance, where Mr Mike entered into agreement to sell a land to Mr. Mathew Who entered into agreement to also sell Same to Mr. Mathias. If the contract with Mr. Mike and Mathew breaks down, and Mr.Mathew couldn’t sell to Mr. Mathias, if Mr Mathias should sue Mr. Mathew, Mr Mathew may join Mr Mike as a third Party.

Another perfect example of third party proceeding, is applying to join insurance company to pay indemnity or bear eventual liability.

4. If the issue is such that it can best be resolve among the parties, third party Proceedings may be most considered.

5. if a third party will bear liability wholely or partly, the party who will bear the liability partly or who would have bore the liability, can join the third party.

The Aim of Third Party Proceedings.

• To the Defendant: The sole aim of third party proceedings is to minimize liability that may arise from the suit.
• Generally, another aim or reason for third party proceedings is to prevent Multiplicity of action, that may have arisen from the same cause of action.

Parties in a Third Party Proceedings.

In a third party proceedings, there are three parties:
a. The plaintiff who instituted the action
b. The Defendant who was sued.
c. A third party joined by the Defendant.

Procedure for Third Party Proceedings

Commencement: The Proceedings bis commenced by way of Motion Exparte supported by affidavit and written address.

Order 13 Rule 19(1) of Lagos State High Court Rule,  provides that

“where it appears to a judge that any person not a party in the proceedings may bear eventual liability either in whole or in part, the judge may upon an application ex parte allow that person to be joined as a third party by any of the defendants”

The application shall state the grounds for the applicant’s belief that such third party may bear eventual liability.

In Lagos, there is only one procedure for applying for leave to issue, file and serve a third party notice and this is by Motion ex parte, supported by affidavit and written address.

In Abuja, once the defendant claims that he is entitled to any of the above from any person who is not already a party to the action, the court may grant him leave to issue, file and serve a third party notice on such person

The procedure for applying for leave to issue file and serve third party notice is provided by Order 10 r 18(2) Abuja. There are two procedures in Abuja, and they are:By Motion Ex parte supported by affidavit and written address; or by Summons: a court’s direction at the hearing of a summons for issue to a plaintiff.See Order 10 r 18(2) Abuja.

By Order 10 r 19(1) Abuja, the third party notice shall be as in forms 23 or 24 of the appendix, with necessary variations and the third party notice shall be sealed.

Service of third party notice

By Order 10 r 19(2) Abuja and Order 13 r 19(2) Lagos, the Third Party Notice, together with all other existing processes filed in the action (including the writ or originating summons and pleadings filed) shall be served on the third party within the time prescribed for the delivery of defence.

Effect of the Service of the third party notice

Service of the third party notice makes the third party to become a party to the action with the same rights in respect of his defence as if he had been sued in the ordinary way y the defendant. See Order 10 r 20 Abuja.

Time for entering of appearance by third party

By Order 10 r 21(1) Abuja and Order 13 r 20 Lagos, the third party may enter appearance with eight (8) days or within at least thirty (30) days if he is outside jurisdiction or within such other time as the court may direct.

Note that if he fails to appear within prescribed time, he can bring application for extension of time to enter appearance. See Order 44 r 4 Lagos and Order 10 r 21(2) Abuja.

Effect of failure to Appear or file Defence.

By Order 10 r 22 Abuja and Order 13 r 21 Lagos, both provide that where the third party has been served with the third party notice and he does not enter an appearance or file pleadings as required, he shall be deemed to have admitted the claims on the Third Party Notice and shall be bound by all the decisions in the proceedings, whether by consent or otherwise.

Is Third Party Proceedings the Same as Joinder of parties?

Joinder of parties is different from third party proceedings. In joinder of parties, the reason for the party to be joined may not be due to liability. The person to be joined may just be a necessary party to the suit. But in third party proceedings, the Defendant must have firm belief that the third party will share in eventual liability.

Again, application for joinder is by way of motion on notice but application for third party notice is made exparte under the High Court Rules of Lagos State and Abuja. In other words, before a party can be joined in a suit, the adverse party must be put on notice, to enable him knew why the party should be joined in the suit.

Before a third party will be joined in third party Proceedings, leave of court must be sought and obtained but Joinder of parties, does not require leave of court. All it requires is for the party seeking to join another person to establish that the party he want to join is a necessary party to the suit.

In third party proceedings, only the Defendant or Plaintiff to a counter claim can commence the Proceeding. In other words, where there is no counter claim, the plaintiff cannot bring application for third party proceedings. But either the plaintiff or Defendant can apply to join a party to a suit. The court can suo moto order a necessary party to be joined in a suit.

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Introduction to Documentary Evidence in Nigeria

Section 258 of the Evidence Act 2011 defined document to mean books, maps, plans, graphs, drawing, photographs, including any matter expressed by use of letters or figures.

Documents under the Act also referred to disc, tape, sound track, or other device in which sounds or other data are embodied.

The Act also defined document to include, film, tape or anything by which visual image are embodied or any device by which means of information are recorded, stored or retrieved including computer output.

Types or Categories of Documentary Evidence

Under the Evidence Act 2011, there are two categorises of documentary evidence: Public documents and Private Documents.

Difference between Public Documents and Private Documents.

Section 102 defined public document to include:

a.Documents forming the official acts or records of (i) the sovereign authority ( ii) official bodies and tribunals,or (iii);public officers, legislative, judicial and executive, whether of Nigeria or elsewhere.
b.Public record kept in Nigeria of Private documents.

By the definition provided in Section 102 above, a document is a public document once:

• It is in the record of public officers or
• It forms part of the record of public institutions
• It forms an act of official bodies, tribunal, sovereign authorities and government.
• Anyone can access it when it is needed.
• Where public document is obtained, it will always have the official stamp of the body or public officer that issued it.

The court in the case of Northwest Energy (Nig) Ltd v Ibafon Oil Ltd(2015) 16 NWLR (Pt.1484) P.4,
Stated:

“Classification of public Document stands on two conditions which must co-exist
a. Its availability for public inspection and
b. The fact that it was made or brought into existence for that purpose”.

On the contrary to public document, every other Documents other than public documents are private Documents. See Section 103 of the Evidence Act 2011.

In other words, documents that emanates from private persons, are regarded as private documents.

Proof of Documentary Evidence

Documentary Evidence are proved by:

a. Primary Evidence

b. Secondary Evidence

Primary evidence of a document includes:

• The document itself produced for inspection in court
• The counterpart of the document, where the document is executed in counterparts.
• Each part of a document where it is made in several parts.
• Each document made in the same uniform process from common copies of the original. See Section 86 of the Evidence Act 2011.

Secondary evidence of a document includes:

• Certified copies
• Photocopies of the original
• Copies made or compared with the original
• Oral account of the content of the original given by someone who has seen it
• Counterpart of document as against the party who did not execute it. See Section 87 of the Evidence Act 2011

The general Principle of law is that documents are proved by primary evidence(See Section 88 of the Evidence Act 2011)

However, the Evidence Act also made provisions for when secondary evidence of documents may be given.

In the case of private documents, section 89 of the Evidence Act 2011, stated those situations when secondary evidence may be admissible to include:

• When the original is in possession of the adverse party, for which notice to produce has been given
• When the original has been destroyed or lost.

For a party to give secondary evidence of private document, the party seeking to tender the photocopy of the private document must lay proper foundation as to the whereabout of the original, in situation where the original is lost or destroyed.

But where the original is in possession of the adverse party, notice to produce to inspect must have been given to the adverse party in compliance with section 91 of the Evidence Act 2011.

The notice to produce empowers a party to tender the photocopy of the original he has where the original is not produced, provided that no notice to produce will be required where:

• The adverse party has the original in court.
• The adverse party ought to know that he will be required to produce the original in court.
• The adverse party has admitted the loss of the original etc. See Section 91 of the Evidence Act 2011.

In the case of Public documents, the only secondary evidence that may be given is the Certified true Copies of the public document.

In other words, no other copies of public documents are admissible in law apart from the original itself- where it is movable or the certified true copy-where it is immovable. See Northwest Energy (Nig) Ltd v Ibafon Oil Ltd(2015) 16 NWLR (Pt.1484) P.5.

The Supreme Court in the case of Onobruchee v Esegine(1986) 1 NWLR (PT 19) 799, held that even if a document is signed, but not certified, as far as it is photocopies, it is inadmissible, even if it admitted, it will be expunged during judgement.

The requirement of certification cannot be waived, nor can parties confer admissibility on a document. See the case of Ogheneovu v FRN(2019) 13 NWLR (Pt.1689) P.240

Admissibility of Document in Nigeria

By virtue of Section 83(1) of the Evidence Act 2011

“In any Proceeding where direct evidence of a fact would be admissible, any Statement made by a person in a document which seems to establish that fact shall on production of the original document, be admissible as evidence of that fact”

The conditions for the admissibility of document include:

1.The requirement as to the maker of the document.

a.The maker of such document either had personal knowledge of the facts contained in the statement,or
the maker was supplied with the facts he recorded by a person who has personal knowledge of same.
b.The maker should be called as witness, except where the maker is:

• dead,
• unfit by reason of mental or bodily condition,
• cannot be found after reasonable effort or
• The person is outside Nigeria, such that it is not practicable to secure his attendance.

Where the maker is not called as a witness, proper foundation must be led as to the whereabout of the maker.

2. Relevance. The document sought to be tenderd must be relevant for it to be admissible. Relevance is the bedrock of admissibility.

3. The document must be pleaded and frontloaded.

4. The document must be inadmissible state.

Pleading of Documents

Only material facts supporting the admission of a documentary ought and should be pleaded and not necessarily the document itself.Thus a document need not be specifically pleaded .

In other words, once sufficient materials in respect of a document are averred, it shall be sufficient bmupon a pleader to rely on it. See Access Bank PLC v Ogboja(2022) 1 NWLR (PT.1812) P.561

It follows that, documents in support of pleaded facts can be tendered and admitted even though the document itself had not been pleaded. See also Okonkwo v C.C. B(Nig) Plc(2003) 8 NWLR(PT.822) 347

The Court Supreme Court reinterated this position in the case of. Pillars(Nig) Ltd v Desbordes (2021)12 NWLR(PT.1789) P.124 to 125 that:

” By virtue of section 1 of the Evidence Act, facts only and not the evidence to prove the facts need to be pleaded. Specific documentary evidence need not be pleaded as long as the facts relating to the document are expressly pleaded”

Does Document Speak for Itself?

It is widely said that Document tendered in court Speak for itself.  In other words, Court can infer from the face of the Document, it’s content. If there is a mistake on the face of the Document, it can be seen from the face of the Document.

The conclusion is that a party cannot use oral Evidence to vary, add or contradict the content of a Document, save for the exceptions provided under the Evidence Act. See Section 127 of the Evidence Act 2011.

To what extent does Documentary evidence Speak for itself?

Documentary evidence no matter it’s relevance, cannot on its own speak for itself without the aid of an explanation relating it’s existence. It only speak for itself from the face of it.

Where a party dumps a document in court without showing how it affects the case of the party, the court has no duty to embark on an independent enquiry to fix the document to the case of the party.

It is therefore the duty of a party tendering a document to give the document relevance by connecting it to issues before the court.

The court in the case of Jimi v INEC(2022)8 NWLR (Pt.1833) P.588 held

“The mere fact that a document is pleaded or frontloaded, does not give relevance to the document. A party tendering a document must demonstrate the relevance of the document to his case or an aspect of his case”

Effect of Document tendered but marked Rejected

Where a document is tendered, the usual practice is for court to admit such document and mark it as exhibit. However, where the admissibility of the document is challenged, and the court refuse to admit the document, the usual practice is that court will reject the document and State:

“The document was tendered but marked rejected”.

The consequence of this is that such document naturally, does not exist before the trial Court and court cannot use it in determinination of the issue before the court. See Emokpae v Stanbic -IBTC P.M.Ltd.(2015) 17 NWLR (Pt.1487) P. 62.

However, party who tendered a document that was rejected can appeal against the ruling of the court rejecting the said document. This is usually, interlocutory appeal.

Objections to the Admissibility of Documents.

Objections can be raised regarding the admissibility of Documents in Court during the tendering of document.

Whenever such objection is raised to documentary admissibility, the party who tendered it, is at liberty to withdraw the Document or join issues with the party Who objected to the admissibility.

The party raising objection to the admissibility of a Document is expected to State the grounds for such objection.

Where the party who tendered the Document joins issue with the party objecting to the admissibility -by arguing on why the Document should be admitted in evidence, the Court will rule on the objection raised.

Grounds Upon which Objection can be raised, challenging the admissibility of Documents.

a. Where the Document is not Certified or properly certified. The only ground for admissibility of Public Document is that the Document tendered must be the original copy of the public Document, or a certified true copy of the original.

Certification of Public Documents under the Evidence Act 2011 is vital. Only certified copies of Public Document or the original itself are admissible.

Certification of Public Document is done by the officer Who is in charge of the original. In certifying the Document, the officer is expected to inscribe his name, title, signature, dated and official stamp in each pages so certified.

Where the above requirements are not met, it becomes a solid ground for objecting to the admissibility of the Document.

b. Photocopies of Documents.

Where the Document sought to be tendered is a photocopy and no foundation was led as to the whereabout of the original document, it can become another ground for objecting to the admissibility of a Document.

c.Where a document is tendered through a witness other than the maker without proper foundation laid as to the whereabout of the maker, objection can be raised as well.

This is because, the general rule of evidence is that documents should be tenderd through the maker. Document tendered through a witness other than the maker amount to hearsay. See Section 37 and 38 of the Evidence Act supra. On Who a maker of Document is, see Section 83(4) of the Evidence Act supra.

The only ground to tender Document through witness other than the maker is that proper foundation has to be laid as to the whereabout of the maker.

c. Where the Document is an Unregisterd Instrument.

Where the Document sought to be tendered is required to be registered, by virtue of land Instrument registration law or other relevant laws, it becomes a ground for raising objection to the admissibility of the Document.

This is because an Unregisterd land Instrument is inadmissble in law save where it is tendered for the purpose of evidencing the existence of a contract.

d. Computer generated evidence

Where the Document sought to be tendered is a computer generated evidence and there is no certificate of compliance attached to the document,  it becomes a gound for raising objection to the admissibility of the Document.

The requirement of certifate of compliance cannot be waived. The certificate States how the Document was produced, the machine used to produce it, the working condition of the machine, etc.

e. Where the document tendered is unsigned and undated. An unsigned Document is worthless and has no probative value.

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