Commercial Law Index

A preliminary objection by the respondent set out to expose the lack of due diligence on the part of the appellant. The respondent’s claim was that the appellant’s records were fundamentally defective and incompetent. This was because the records of the appellant were issued signed by "N. Nwanodi & Co," (which is not a legal practitioner recognized by law in Nigeria) instead of counsel’s actual name.

The counsel for appellant stated that the habit of legal practitioners' merely signing court processes in their firm's name without indicating their actual name has been allowed by this court in many cases. Thus, it was an over-adherence to technicality to annul the process improperly filed.

The respondent sought this court to employ purposive interpretation of sections 2(1) and 24 of the Legal Practitioners Act (the act) that would lead to the conclusion that the record filed was indeed fundamentally defective.

This court upheld the preliminary objection of the respondent. It held that the appellant's' notice of appeal was fundamentally defective. It concluded that the purpose of sections 2(1) and 24 of the act was to ensure accountability on the part of a legal practitioner who signs court processes.

A court can dismiss a matter for want of prosecution where the person who initiated the court action does not take active steps to pursue the case in court such as not appearing in court. The court dealt with a case where the lawyer did not appear before court on the date for hearing. The case was thereafter dismissed for want of prosecution. This case was an application to set aside the order to dismiss the original court suit for want of prosecution.

To set aside an order that a court suit be set aside for want of prosecution, the applicant must give sufficient grounds that must balanced against the interests of justice. In this case, the lawyer for the applicant did not appear because he was unwell on the court hearing date. The court held that this constituted a sufficient reason to set aside the notice to dismiss the case. In the interests of justice and the compelling reasons, the application to set aside the notice to dismiss was granted.

Contract Law – payment of money – specific performance Civil procedure – jurisdiction - ratio decidendi

The court considered whether a Financial Services Provider (FSP) as regulated according to the Financial Advisory and Intermediary Services Act (FAAIS) was negligent by advising the plaintiff which led to a loss of two million Rands.  Further, if the second defendant was liable to indemnify the first defendant for professional negligence considering the exclusion clause in the insurance contract.

The court held that s 16 of FAAIS requires that an FSP act honestly, fairly with due skill, care and diligence. Further that the FAAIS Code of Conduct requires professionalism, in the interest of the public.  In the case of an insurance contract, the court held that an exclusion clause might make proper commercial sense, be consistent with and not repugnant to the purpose of the contract.

The court concluded that the defendant did not act in accordance with expectations of an FSP, the defendant was negligent and dishonest. Further, the purpose of the insurance contract was to indemnify the insured for professional negligence; the exclusion interpreted restrictively cannot be applicable in the case.

The defendant was ordered to pay damages of two million Rands plus interest and second defendant to indemnify the first defendant.

This appeal raises the question of admissibility of a document that was alleged to be a privileged document. The petitioner sought to have this document admitted as evidence, while the respondent argued that it should be excluded as the security of the state would be impaired. 

The petitioner argued that that if this document was excluded, his constitutional right to fair trial would be violated. He further claimed that if the security of the state would be impaired by such conduct. Section 23(2) of the Constitution allows the court to hear the matters that touch on the security of the state, away from the public. 

The respondent relied on s 121 of the Evidence Act. He claimed that this document relates to affairs of state and was therefore inadmissible without the consent of the head of department.

This court stated that when an act of Congress conflicts with constitutionally enshrined provisions; the Constitution prevails because it holds the paramount commands. Furthermore, it was held that the court that has the power to determine whether a matter falls within the exceptions or not. In order to do this, the state must produce evidence upon which the court can act. The state never did so.

The court examined the document in dispute and found it to relate to state security. However, the court overruled the respondent’s objection. The document was admitted as evidence in closed court.

The applicant was a client of the first and second respondents, who represented the plaintiff (third respondent, a company) in a case against the applicant. The applicant claimed that during the legal representation, the first and second respondents became aware of facts prejudicial to him which were a violation of advocate and client relationship, thus applied for an injunction. 

The court considered whether the first and second respondents also handled matters which would arise in the suit against the applicant while representing the third respondent.

The court held that where there was a fiduciary relationship, the irrebuttable presumption is that there is a possibility of disclosure. Further, although some authorities state that the applicant should plead the confidential information that could be reviewed, recent authorities have held that such pleading would be contrary to the intended confidentiality. 

The court found that there was a fiduciary relationship between the first and second respondents. Moreso, the parties had a relationship of legal and litigation interaction. Therefore, information prejudicial to the applicant would likely emerge. 

The court accordingly granted the application and ordered the disqualification of the first and second respondents from the pending suit.