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  • 2004-12-13
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Forson v. Calabar Municipal Government

MRS. MERCY SABINA FORSON

V

CALABAR MUNICIPAL GOVERNMENT & ANOR

COURT OF APPEAL

(CALABAR DIVISION)

RAPHEAL OLUFEMI ROWLAND JCA ( Presided )

SIMEON OSUJI EKPE JCA

ISTIFANUS THOMAS JCA (Read the Lead Judgment)

CA/C/101/2000

MONDAY, 16TH JUNE, 2003

COURT - Judgments obtained by fraud - Power of court to set aside

COURT - Jurisdiction of - Importance of - Need to settle question of when raised, before further proceedings

EVIDENCE - Affidavit evidence - Where deponent relies on statutory instrument or Act or Law - Duty on

EVIDENCE - Counter-affidavit - Party disbelieving assertions in - Duty on - Need to file further or better affidavit

GOVERNMENT - Local Government, State government and Federal government - Appropriate persons to handle civil and criminal prosecution of matters for - Section 80(3)(b) High Court Laws of Cross-River State, Cap. 51 Laws of Cross Rivers State 1983, considered

JUDGMENT AND ORDERS - Judgment obtained by fraud - Power of court to set aside

JURISDICTION - Importance of - Need to settle question of when raised before further proceedings

LEGAL PRACTITIONER - Representation of Local Government in civil and criminal proceedings - Appropriate persons for - High Court Laws of Cross-Rivers State Cap. 51 Laws of Cross-Rivers State 1983 section 80(3)(b)  considered

PRACTICE AND PROCEDURE - Representation of Local Government in civil and criminal proceedings - Appropriate persons for High Court Laws of Cross-Rivers State Cap. 51 Laws of CrossRivers State 1983 section 80(3)(b) considered

STATUTE -  High Court Laws of Cross-Rivers State, Cap. 51 Laws of Cross-Rivers State 1983, section 80(3)(b) - Appropriate person to represent Local Government, in civil and criminal proceedings

Issues:

1.              Whether from the totality of evidence before the lower court it was correct for the learned trial Judge to hold that learned counsel to the respondents was a Legal Officer, and therefore qualified to represent the respondents.

2.              Whether the learned trial Judge was correct when he held that the learned counsel to the respondents, E. E. Okon, was a Legal Practitioner as contemplated by Legal Practitioners Act, Cap. 270, Laws of the Federation of Nigeria, 1990 and section 80 subsection 3(B)(i) of the High Court Law, Cap. 51, Laws of the Cross River State of Nigeria, 1983.

3.              Whether it was correct for the learned trial Judge to admit in evidence exhibit CMG2 attached to the counter affidavit of the respondents.

4.              Whether it was correct in law for the learned trial Judge to hold that the issue of want of jurisdiction raised by the appellant was premature.

5.              Whether the learned trial Judge was correct to assume jurisdiction on the claim of the respondents in view of uncontroverted evidence before it that the court had earlier litigated upon the facts that were the fulcrum of the respondents’ claim.

Facts:

On 20th May, 1997, the respondents through their counsel Edet E. Okon Esq. took out a writ of summons in the High Court, Calabar, seeking the following reliefs:-

(a)          A declaration that the defendant (present appellant) is not entitled to the judgment in suit No. C/70/79 delivered on the 12 th day of May, 1992, same having been obtained by fraud. (b) N2 million general damages and cost of the action. Thereafter, the appellant brought an application on notice praying for the following orders:-

(i)             An order restraining Edet E. Okon Esq. from appearing or representing the said plaintiffs/respondents.

(ii)           An order striking out all the processes filed by the said Edet E. Okon Esq. on behalf of the plaintiffs/respondents.

(iii)         An order striking out the entire action on ground of want of competency.

The trial court dismissed the application.

Dissatisfied, the appellant appealed to the Court of Appeal.

The Court of Appeal in determining the appeal, considered the provisions of rule 31(A) of the Rules of Professional Ethics of Legal Practitioners Act Cap. 207, 1990 Laws of the Federation, which provides as follows -

(A)     “In general, a member of the Bar whilst a servant or in salaried employment of any kind, should not appears as an advocate or in any High Court, but the following shall not be deemed to constitute a member or a servant in salaried employment:

(i)             ...

(ii)           Employment as a Legal Officer in any Government Department.