Pundits perceive Esunge Patrick Ekema’s withdrawal of a legal suit in which the Buea mayor was praying the court to inter alia; perpetually restrain the University of Buea, UB, from interfering with academic degrees awarded him by the institution as strategically foxy.
They imagine that he might have literally placed a banana peeling, expecting that his opponents would step on it and tumble, legally. He would then be in pole position to play a strong, hidden joker should “The Place to Be,” proceed to effectively revoke his certificates.
The court granted Ekema’s request on Thursday, May 24, against frantic efforts by the defendants to have the matter entertained all the way, preferably by a collegiate bench of three judges. This action at the behest of Ekema is what lends even stronger credence to the belief that the mayor has thrown in the towel (“with intent”) and is now ready to see his academic certificates which he purportedly acquired fraudulently withdrawn.
That notwithstanding, in upholding Ekema’s right to withdraw his own claims against UB and the State of Cameroon as First and Second Defendants respectively, His Lordship Mr. Justice Ako Kenneth noted that the legal history of the suit was enriched when on May, 7, the First Defendant filed a motion on notice soliciting as follows:
That the suit be heard by a collegiate bench of three judges and that they would be seeking to establish that the prayers sought by the plaintiff, are outside the competence of “this High Court and within the jurisdiction of a competent administrative tribunal.”
The Judge recalled that on May, 16, the Plaintiff filed a motion of discontinuance, praying the court to note that their intention to discontinue against all the defendants was hinged on Suit N0: HCF/015/WOS/2018, as well as their motion on notice that was hinging on that suit. Counsel for the First Defendant, Barrister Eta Besong Jr. would have none of this. He did not see what the court was adjourning to rule, for, according to him, he has only brought information before the court and not any application. Before then, the Barrister had reiterated the legal principle that in law, a substantive suit cannot be attended to before an interlocutory application.
The Judge consulted ‘Black’s Law Dictionary’ which defines discontinuation as “the termination of a law suit by the plaintiff.”
Citing Order 44 of the Supreme Court (Civil Procedure) Rules Cap 211 of the Laws of Nigeria Revised Edition 1948, the Judge noted that Volume X enacts that if before the date fixed for a hearing, the plaintiff decides to discontinue any suit against all or any defendants or to withdraw any part of his claim, he must give notice in writing of discontinuance or withdrawal to the Registrar and to every defendant with or from whom he desires to discontinue or withdraw. He said that according to the Learned author, Akinola Aguda in “Principles of Practise and Procedure” the effect of discontinuance is that the suit ceases to exist.
The Judge further invoked several other judicial precedents before noting that once an application for discontinuance is made, the things to be considered by a trial court is the stage the application was made.
According to Mr. Justice Ako, it was crystal clear that with a notice of discontinuance such as the one before his court, which is discontinuance before the hearing on the merits, “this suit is automatically terminated.”
He said further: “The operative word here is ‘a matter be heard.’ This presupposes a situation at the onset of the hearing of the suit. I do not believe that it should be interpreted to mean that the matter being heard already by a single judicial officer shall at a later stage be transformed into a hearing of a collegiate bench.
“This question must be addressed and resolved at the onset of the hearing of the suit. One suit cannot at the same time be commenced by a single judge and later be entertained on the same issues by a by a collegiate bench again…
“Thus, the application appointment of a collegiate team to hear a suit is a rule that does not overcome the discontinuance of the suit. That suit is terminated automatically as we have taken time to demonstrate especially as in the case if it is done before the date fixed for hearing.
“No suit still exists here and so too, all the pending interlocutory applications there also collapsed with the notice of discontinuance having been filed at the appropriate time…”
Origin of legal battle
When news of the fake certificate saga involving the Buea mayor first broke, it spread like wildfire. UB that initially put to question the mayor’s requisite qualifications did not ask that criminal charges be pressed on him for the purported fraud. Rather, it was Ekema, who, through his lawyer, Barrister Emmanuel Nkea approached the court, seeking to halt the university from releasing further information about his academic history to the public.
Then he backpedaled and on Thursday, May 24, after a spirited legal battle the court ruled in his favour.
Unlike the previous court session on May 17 when the plaintiff was “unjustifiably absent,” this time, he gave power of attorney for someone to represent him. Even though counsel for the defendant raised an objection on grounds that under the provision of section 117 of the Evidence Ordinance, the document granting power of attorney ought to be executed by the law before a notary court and authenticated by a notary court. Barrister Eta Besong Jr. argued that the document tendered did not state that it was executed before a notary court; neither did it state that it has been authenticated by the notary court.
He pointed out that Law No 90/059 is what governs practice at the Bar and does not deal with power of attorney. He concluded that the word ‘seal’was different from ‘executed before’ and ‘authenticated by’ and so, the document was inadmissible under section 117 of the Evidence Ordinance and should be rejected.
Barrister Nkea, counsel for the plaintiff reminded the court that according to law, advocates practising in the Northwest and Southwest can perform the functions of notary court. Therefore, if he had sealed the document as notary, it is acceptable; otherwise there would be nothing that makes them notaries in this part of the country. He said his opponent’s arguments were dilatory in nature and should be discarded. “The document before you is duly signed. There is this notion of form which my learned friend has brought up and it is a technical issue that should not stand before the execution of justice,” Nkea stated.
The presiding judge held that the rules of the court relating to forms are rules and the duty of the court is not to adhere to such forms but to do substantial justice and prevent undue appearance to technicalities. He said what is important is that the document was done before a notary court, and so, whether it was sealed or not, the significant issue is that both ways lead to Rome and the mission is to get to Rome. As such, he said the document granted power of attorney to the plaintiff and is admitted.
By Nester Asonganyi