Re: Oyedepo’s Faith Academy wins round one By Kola Alapinni

Re: Oyedepo’s Faith Academy wins round one
By Kola Alapinni

This is a commentary on the above named story by Peter Nkanga published on 14 December 2009 on Next.com Readers can check out the story via the link below.
http://234next.com/csp/cms/sites/Next/News/National/5495762146/story.csp

This story has generated so much interest on various websites especially for our citizens living outside Nigeria.

Firstly, this matter might not be sub judice in its entirety. Sub judice simply means legal matters before the court are not discussable. Matters are said to be 'sub judice' when parties are still in litigation before the court and comments by the parties themselves or third parties can be prejudicial, contemptuous, directing... - et cetera, et cetera - as to be likely to affect the outcome of the matter. In this case however, a court has ruled on the preliminary objection. Hence we can comment on that particular ruling. Maybe not on the entirety of the case as this has been adjourned to January 2010

Secondly, on the substantive issues. The relevant questions are viz:

a) Is the suit properly instituted? No. The proper and relevant parties have not been sued or brought before the court.

b) Why have the relevant parties not been sued? The relevant parties were not sued because the relevant papers could not be obtained i.e. The Certificate of Incorporation. The CoI will 'lift the veil' behind the juridical body (i.e. the school) to reveal who the juristic persons are (i.e. the people who you can sue as the owners or the proprietors.).

c) Can the relevant parties be sued? Yes. The person who instituted the matter did not ask. It is settled in law that the court is not a Father Christmas and thus will not give you what you did not ask for. The plaintiffs i.e. the deceased's father through her lawyers ought to have asked for an Order compelling the C.A.C to provide the CoI to the court and/or ask the court to ask the defence's lawyers to provide this document in the interest of justice. The court would have obliged as this goes to the very core of who can be brought to court or not.

d) Was the court right in its ruling? This is debateable. Even though 'the statutes would not be used as an engine of fraud', the defendants would have appealed on technicality that the judge erred by allowing the matter to proceed without a properly instituted case. The implication would be that the appeal court might rule in the favour of the defendants, which means the initial judge would have been overruled and the matter would have to be re-instituted. No judge likes to be overruled, hence the judge in this case in my opinion, erred on the side of caution. Preliminary objections (if you know what you are doing) are very useful to one’s case in litigation because it destabilises an ill-prepared opponent and also serves as a check to test the legal bandwidth of the judge. It also buys you time for all sundry reasons e.g. an out of court settlement or could give you an upper hand on the negotiating table. As a matter of fact a preliminary objection on a court’s jurisdiction if successful throws a matter out ab initio.
See also Emmanuel Egbuna and David Anyaele v. Charles Taylor and Others, Ruling on Preliminary Objections (November 1, 2005) http://www.asil.org/ilib051115.cfm#j1 as an example of a failed preliminary objection BY THE Nigerian government
See NTAKIRUTIMANA DEFENCE SAYS UN TRIBUNALS ARE ILLEGAL
2nd April 2001 (I was actually an observer in this case in Arusha)
http://www.hirondelle.org/hirondelle.nsf/0/b327fbfdb8707d83c12567cb003390c8?OpenDocument
See Radovan Karadzic’s case: http://news.bbc.co.uk/1/hi/world/8341288.stm


e) Is there a remedy? Yes. Note comments of Mr Oyeniji: "If a company is one limited by guarantee, Corporate Affairs Commission as a matter of practice does not give certificate of incorporation to any individual other than those behind the formation of the company. And the court in ruling gave consideration to the fact that particulars of the directors were provided rather than the certificate of incorporation"

In my own view, it might not be as a matter of law! (I am still going through the Act for a loophole) If this is not required by law. The CAC ought to oblige. If they are unclear: Section 646(1) of the CAMA might be useful: 'The Commission may apply to court for directions in respect of any matter concerning its duties, powers and functions under this Decree and on any such application, the court may give such directions and make such further Order as it thinks fit in the circumstances.'

e) Is this matter justiciable? Yes. In my own view there is a case to answer here. As a matter of fact were this matter to have occurred here in the UK the chances are that Police and the Crown Prosecution Service would have charged the relevant party for criminally negligent manslaughter. The precedent here would be the Adomako case where it has been held that criminally negligent manslaughter is: ‘A high degree of negligence, manifested in behaviour substantially worse than that of the average reasonable man. Causing someone's death through gross negligence is a form of manslaughter if the accused's conduct fell well below acceptable standards (see R v Adomako [1995] 1 AC 171).

‘Criminally negligent manslaughter occurs where there is an omission to act when there is a duty to do so, or a failure to perform a duty owed, which leads to a death. The existence of the duty is essential because the law does not impose criminal liability for a failure to act unless a specific duty is owed to the victim. It is most common in the case of professionals who are grossly negligent in the course of their employment. An example is where a doctor fails to notice a patient's oxygen supply has disconnected and the patient dies.’ (R v Adomako supra)

The Plaintiff's legal team needs to get their research right. These legal stumbling blocks are necessary to separate the wheat from the chaff. And of course it contributes to the ever developing jurisprudence of the particular area of law. It all depends on how you argue your matter backed up with facts, cases, precedents and presentation.

Above all, my heart goes to the family of the bereaved. The deceased and her family need justice. Our legal system also needs justice to show that we are indeed the last hope of the common man. And you and I, the society, the nation itself which is injured and betrayed also needs justice to heal. Justice is tripartite. The Nigerian Police, the DPP Ogun State ought to step up to their responsibility.

Ps>>> These are just my views/opinion. I am not holding brief for any of the parties nor have I been consulted to do so. If anyone quotes me anywhere else please credit my work or you risk legal action.