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Category: Law

  • Whether a waiting member of a court martial who did not hear evidence in the case can participate in arriving at its final decision

    Whether a waiting member of a court martial who did not hear evidence in the case can participate in arriving at its final decision

    FACTS

    This appeal is against the decision of the General Court Martial, convened by the Commander, Army Headquarters Garrison, Abuja, for the trial of the Appellant for the offence of murder, contrary to Section 106 (c) of the Armed Forces Act, Cap A20 Laws of the Federation of Nigeria, 2004.

    In its judgment which was delivered on November 26,2015, the General Court Martial held that the Appellant did not have the mens rea or guilty intent to kill the deceased and consequently convicted him of the lesser offence of manslaughter and sentenced him to life imprisonment.

    Having obtained the requisite leave, the Appellant who was dissatisfied with the decision appealed to the Court of Appeal.

    ISSUES FOR DETERMINATION

    The Court determined the appeal on a sole issue thus:

    “Whether the Court Martial as constituted had the requisite jurisdiction to try and convict the Appellant?”

    APPELLANT’S SUBMISSION

    It is the Appellant’s contention that the conditions precedent to his trial by the General Court Martial were not complied with as the allegation against him was not reported to his Commanding Officer for prior investigation as stipulated in Sections 123-125 of the Armed Forces Act. It was posited that the Appellant was in consequence prejudiced as he also did not have adequate time to prepare for his defence as he was not served the prescribed pre-trial documents as required by Rule 19 of the Rules of Procedure Army (1972). His right to fair hearing under Section 36 (6) (b) of the 1999 Constitution was thus infringed upon.

    Appellant further contended that the General Court Martial that convicted him changed in composition from hearing to judgment and that an unsworn member participated in the decision. It was contended that on the day of final addresses, a waiting member was drafted in for a Member who was not available and the said Waiting Member was not shown to have been sworn or affirmed but participated in the decision of the General Court Martial, even though he did not have the opportunity of observing the witnesses or hearing their testimony.  This was in contravention of Section 13 of the Armed Forces Act and Rules 2 and 34 of the Army Rules of Procedure and the effect was to render the proceedings a nullity. The cases of YAKUBU vs. CHIEF OF NAVAL STAFF (2004) 1 NWLR (PT 853) 93; (2003) LPELR-10399(CA) and ZURU vs. CHIEF OF NAVAL STAFF (2012) AFLR (PT. 1) and NWALUTU vs. NBA (2019) 8 NWLR (PT 1673) 174 at 193; (2019) LPELR-46916(SC) were referred to.

    RESPONDENT’S SUBMISSION

    The Respondent submits that as required by Section 123 of the Armed Forces Act, the allegation against the Appellant was investigated and the Appellant was interrogated and he also volunteered a statement, just as did the other witnesses. It was opined that the investigation done by the Military Police upon the instructions of the Commanding Officer fulfilled the requirements of the law. It was argued that the Appellant was given adequate time to prepare his defence as the charge was only made and served on the Appellant almost six months after investigation had commenced. It was stated that the Appellant’s contention in this regard was reliance on undue technicalities to defeat the ends of justice. The case of NZEKWE vs. ANAEKWENEGBU (2019) 8 NWLR (PT 1674) 249; (2019) LPELR-49002(SC) was called in aid. It was further stated that fair hearing is for both parties in litigation and that Appellant was given enough time to prepare for and present his case. The case of IGWE vs. THE STATE (2021) LPELR-55336 at 20-21 was cited in support.

    On whether the General Court Martial was properly constituted, it was submitted that a Waiting Member is part of a Court Martial and was duly sworn in with the others, even though as Waiting Members they are only to be seen and not to be heard until their services are required when a substantive member is indisposed, citing OBISI vs. CHIEF OF NAVAL STAFF (2004) LPELR-2184 (SC) at 10. It was contended that it is to be presumed that the Waiting Members and other Members of the General Court Martial were all duly sworn at the inauguration before the General Court Martial started its proceedings. It was stated that the presumption of regularity under Section 167 of the Evidence Act demands the presumption that the inauguration of the General Court Martial was done in a regular manner. The case of NIGERIAN AIRFORCE vs. JAMES (2002) LPELR-3191 (SC) at 16-17 was referred to.

    In conclusion, Respondent argued that the Appellant not having raised any objection to the reconstitution of the General Court Martial when it was done, implied that he had waived his right as held in ADETA vs. NIG ARMY (2016) LPELR-40235 (CA) at 18-19.

    APPELLANT’S REPLY

    In reply, Appellant argued that the requirement of Section 123 of the Armed Forces Act is that the Appellant is to be investigated by his Commanding Officer in the first instance and not the Military Police. It was stated that the discretion under Section 124 of the Armed Forces Act only arises after the mandatory investigation by the Commanding Officer under Section 123 of the Armed Forces Act. It was argued that the constitutional provision for adequate time and facilities to prepare defence is not about length of time from investigation to trial alone, but compliance with the extant provisions that give the accused person the opportunity to prepare his defence.

    On the application of the presumption of regularity, it was stated that it cannot be invoked to alter established facts and that the Records of Appeal captures the fact that Waiting Members were not mentioned among the category of people that took oath.

    RESOLUTION OF THE ISSUE

    As a starting point, the Court noted that the issue for determination raises the question of the jurisdiction of the Court Martial to have tried the allegation. The Court noted that even though a Court Martial is unlike a conventional Court and can be equated to a jury trial, nevertheless the concept of jurisdiction and the incidents of jurisdiction are applicable to a Court Martial with the same force as it does to a conventional Court. See OLOWU vs. THE NIGERIAN NAVY (2011) 12 SC (PT II) 1; (2011) LPELR-3127(SC), MAGAJI vs. THE NIGERIAN ARMY (2008) 3 SCNJ 82; (2008) LPELR-1814(SC).

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    Having stated as above, the court stated that the essence of Sections 123-125 of the Armed Forces Act is for the allegation against a service person to be investigated before a decision is taken on whether he is to be tried summarily or by a Court Martial. The section does not make it mandatory for the Commanding Officer to personally conduct the investigation. Thus, It was not fatal that it was not the Commanding Officer that conducted the investigation, as the purpose and intention of the section was for there to be an investigation. Moreover, since the Appellant was represented by counsel at the General Court Martial, the issue about any defect arising from non-compliance with Section 123 of the Armed Forces Act was deemed to have been waived, having not been raised at the Court Martial. See the cases of IBRAHIM vs. THE STATE (2018) 1 NWLR (PT 1600) 279 at 319-320, MAGAJI vs. THE NIGERIAN ARMY (2008) 8 NWLR (PT 1089) 338 at 384.

    On the Appellant’s contention that he was not given adequate time to prepare for his defence as the pre-trial documents were not served on him, the court examined the Record of Appeal and held that from the Record, it was evident that the Charge was duly served on the Appellant. As such, the pre-trial documents must be taken to have been duly served on the Appellant as a presumption of authenticity and correctness inures in favour of the Records of Appeal. See the cases of HASKE vs. MAGAJI (2009) ALL FWLR (PT 461) 887 at 904; (2008) LPELR-8330(CA), NUHU vs. OGELE (2003) 18 NWLR (PT 852) 251 at 272; (2003) LPELR-2077(SC). In addition, the Appellant who was represented by counsel at all stages of the proceedings did not raise any issue that the Appellant did not have the necessary materials or did not have adequate time to prepare for his defence. See OLUFEMI vs. NIGERIAN ARMY (2022) LPELR (58041) 1 at 28-31.

    On the Appellant’s contention that an unsworn Waiting Member participated in the decision, the Court examined the Records of Appeal and held that from the Records, it was apparent that the President and Members of the Court Martial were duly sworn. Thus, all Members, Waiting or otherwise, were administered the oath. The court then went further to examine the implication of the Waiting Member who didn’t hear evidence but participated in the decision. The Respondent on this point contended that the Appellant had waived his right to object since he did not complain at the time on the participation of the said Waiting Member. The Respondent further cited the case of NDUKWE vs. LPDC (2007) LPELR (1978) 1 at 62 to argue that a mere variation in the composition of a panel or tribunal or court, which does not affect the substance of the inquiry, does not render the judgment or decision a nullity. Disagreeing with the Respondent, the Court held that the current position of the law is that such variation in the composition of the General Court Martial, when the Waiting Member who did not hear the evidence but participated in arriving at the final decision, rendered the entire proceedings a nullity. See the cases of KALEJAIYE vs. LPDC (2019) LPELR (47035) 1 at 18-23, 26-30 and 30-33, NWALUTU vs. NBA (2019) LPELR (46916) 1 at 21-25, 27-29 and 30-32 and MUYIDEEN vs. NBA (2021) LPELR (55885) 1 at 9-10, 29-30, 30-31, 42-44 and 47-48.

    HELD

    The court held that the trial and conviction of the Appellant amounted to a nullity. The Court therefore remitted the case back to the Convening Authority i.e. the Commander Army Headquarters Garrison, Abuja, to convene another General Court Martial.

    Appearances:

    Marx Ikongbeh, Esq. with him, Ms. Chidinma Okafor      

    For Appellant(s)

    Akintola Balogun, Esq.                                                                  

    For Respondent(s)

    Compiled by LawPavilion.

    OGHAEKOR v. NIGERIAN ARMY

    CITATION: (2023) LPELR-60573(CA)

    In the Court of Appeal

    In the Abuja Judicial Division

    Holden at Abuja

    ON THURSDAY, 6TH JULY, 2023

    Suit No: CA/ABJ/CR/264/2021

    Before Their Lordships:

    PETER OLABISI IGE

    Justice, Court of Appeal

    ELFRIEDA OLUWAYEMISI

    WILLIAMS-DAWODU     

    Justice, Court of Appeal

    UGOCHUKWU ANTHONY OGAKWU       

    Justice, Court of Appeal

    Between

    PTE. JOHN OGHAEKOR                                 

    -Appellant(s)

    And

    NIGERIAN ARMY                             

    -Respondent(s)

    Leading judgment delivered by Ugochukwu Anthony Ogakwu, J.C.A.

  • NBA gets caretaker committee for Surulere, Eti-Osa branches

    NBA gets caretaker committee for Surulere, Eti-Osa branches

    The Nigerian Bar Association (NBA) has constituted caretaker committees for Surulere and Eti-Osa branches of the association.

    This was made known by the NBA General Secretary, Adesina Adegbite, in  a statement released on the email platform of the association.

    The creation of the new branches followed the creation of Eti-Osa and Surulere/Yaba Judicial Divisions by the Lagos State Judiciary.

    The Caretaker Committees as constituted by the NBA President are as follows:

    For Surulere Branch, Adeleke Agbola, (SAN)  was appointed Chairman while Ita Azim  was  appointed Secretary of the association.             

    Other members are Roseline Akinbo, Chuka Adimonye  and   Peter Ozobialu.             

    Those appointed Caretaker Committee for Eti-Osa Branch included Olawale Ajia  as Chairman while Chinyere Akwueze Nwaogu  was appointed  Secretary.

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    Other menbers are Clifford Orighomisan Atakere , Hauwa Halidu  and  Ganiyu Adebowale Johnson “             

    The statement stated; “I am pleased to inform you of the constitution of Caretaker Committees for the newly created Branches of the Nigerian Bar Association, namely; NBA Surulere Branch and NBA Eti-Osa Branch respectively.                              

      “Members of the Association are by virtue of this developmeent hereby put on notice of the existence of a recognised leadership in the two new branches, who have been mandated to oversee the emergence of duly elected branch officers for both branches.

    “We enjoin all members of the newly created branches to extend maximum support and cooperation to the Caretaker Committees to ensure a successful discharge of their responsibilities.

  • Marketing Edge’s suit against institute’s president for May 27

    Marketing Edge’s suit against institute’s president for May 27

    Justice Taiwo Olatokun of an Ikeja High Court has fixed May 27 for the trial of a suit filed by Marketing Edge Publications Limited against the National Institute of Marketing of Nigeria following alleged threat and harassment over one of its publications.

    The second defendant in suit number ID/10977GCMN/2024, through the company’s lawyer, Felix Akinsola, is the President of the institute, Idorenyen Enang.

    The claimant is praying the court for an order of perpetual injunction restraining the first defendant and all its officers, allies from further threat and harassment of any form either through the use of the Nigerian Police Force (NPF) or any other security agencies.

    The claimant is also seeking an order of perpetual injunction restraining the first defendant, its officers, and other persons acting for and on behalf  of the defendants from continued publication of the libelous publication or any other publication to the like effect.

    It also included an order of perpetual injunction restraining the 2nd defendant either by himself, his officers, any person acting for and on his behalf or through any office he may occupy, either now or at any time in future, from further threat and harassment of any form and from publishing and or making libelous and defamatory  statements towards the claimant and or any person, natural or non-natural associated with it.The claimant prayed the court for, among others damages in the sun of N20 million being damages for assault on its reputation, a reduction in the esteem of right thinking members of the society and damaging utterances by the defendant against the claimant,  a retraction in its entirety  of the public notice made by the Institute of Marketing of Nigeria in the Punch Newspaper of Friday November 24, 2023.The claimant also seeks a robust apology by the institute in four  national dailies stating unequivocally that the claimant is not in breach of any laws in its ordinary course of business, that the claimant is well within its right to carry on its business, that the general public, companies, corporations and individuals are free to relate and contract with the claimant without hesitation and or fear of any kind; and that the claimant is an upstanding and respected corporate body carrying on business within the ambit of its objectives.The claimant, in its 36-point statement of claim averred that it is clear that the institute has embarked on a witch hunt with a fierce determination to undermine the efforts and reputation of the claimant with the sinister intention of running down the business of the claimant through toxic and malicious publications.

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    The claimant averred that except the court restraints the defendants, they would continue to spread these libelous and damaging publications which has occasioned grievous harm to the finance, reputation, business and the standing of the claimant,

    He  averred that despite exchange of correspondents between itself and the defendants, they still went ahead to file a petition with the Police alleging a criminal breach of its statutory powers and naming the claimants and the claimant’s Chief Executive Officer (CEO) and a number of the claimants affiliates in the said petition, the police has refused to oblige the claimant with a copy of the petition the defendants  are put on notice to produce the original at the trial.

    The claimant averred that its publishing and organisation of awards is based on a merit system that it has originally curated and cannot in any way shape or form, or be construed as a regulation and control the practice of marketing in Nigeria and has nothing to do with marketing or its institute‘s control and regulation

    It averred that though it is not a member of the defendant’s institute, its annual published list has gained renown, acceptance and general acclamation for its meritorious approach to awarding excellence to various brand icons, a reputation that has garnered it the moniker :Best Marketing Magazine”

    It further averred: “for its authoritative and well researched news reports, regular special reports and general industry news and stories across the Nigerians Integrated Marketing Communications (IMC), the National Institute of Marketing of Nigeria, under the leadership of its past President, Chief Lugard Aieniewu of blessed memory actually recognised the claimant as the best marketing magazine for two consecutive years.”

    It averred that the 2nd defendant deliberately and out of malice orchestrated  falsehood and malicious libelous publication to spite the claimant and to bring down its business, adding that having failed woefully top galvanise the  Nigerian Marketing community through value-adding services and connect positively with both registered and non-registered marketing professionals in Nigeria, has been looking for a way to bring down the claimant’s business to pave way for his own relevance.

    It submitted that the words used employed by the NIMN in its publication means and it is so understood to mean by those that received the publication that the claimant is an impostor who is deliberately deceiving the general public  and flagrantly disobeys the law , has no regard and or respect for constituted authority  and has ultimately called into question every action carried out by it.

    The claimant averred that the publication by the NIMN has undermined the years of painstaking work it  and in the same vein diminishing the spotless reputation garnered by the claimant over copious years of the proverbial sweat, blood and  tears, adding that the publication by the institute has also diminished the claimant in the estimation of right thinking members of the society, discredited it in its profession, injured its financial credit and exposed it to ridicule and contempt.

  • UNEA drafts legal instrument to end plastic pollution

    UNEA drafts legal instrument to end plastic pollution

    The United Nations Environment Assembly (UNEA) through resolution 5/14 has requested its Director to convene an Intergovernmental Negotiating Committee (INC) to develop an International legally binding instrument on plastic pollution, including the marine environment hereinafter referred to as “the instrument. “

    The UNEA said that this law or instrument will decide the full life circle of plastic at INC-4 held in Ottawa, Canada.

    Plastic includes but not limited to bottled water, pure water, plastic buckets, slippers, children’s feeding bottles, plastic cups and plates, and anything plastic.

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    More than 2,500 delegates participated in the INC-4,  representing 170 Members of the United Nations (UN) and over 480  UN Entities, Non-Governmental Organisations (NGO), and Observer Organisations.

    This included the International Charitable Initiative for Girl Child and Women Development Foundation (ICI-GWODEF) represented by its founder, Barr. Helen Ibeji and Mrs. Olivia Okaro.

    According to Ibeji, the negative effect on humans who rely on the ocean life for the source of their revenue, nourishment, and marine activities will suffer economic set back coupled with the effect that humanity may not have clean water in the coming years prompted the need for a world summit on plastic pollution.

    She also noted that plastic pollutes the land as well especially when humans dump plastic waste into landfills, the soil gets damaged and as such cannot produce as required.

    “As plastic does not dissolve, it remains in the water thereby hampering its purity. Plastic pollution will disrupt the food chain as marine life starts to die off and go extinct.

    “Ailments caused by plastic pollution include cardiovascular disease, chronic obstructive pulmonary disease, leukemia, lymphorna, brain cancer,  breast cancer, and decreased fertility.

    “At Ottawa Canada, we were all united by our strong shared commitment to deliver an international legally binding instrument to end plastic pollution. It is this good spirit of multilateralism that guided our discussion in Ottawa Canada during the INC-4.

    “Discussions were centered on emissions and releases, productions, product designs, waste management, problematic and avoidable plastics, financing, and a just transition”, said Ibeji.

    “Members decided to create an open-ended legal drafting group to form INC-5 by reviewing elements of the draft revised text to ensure legal soundness.

    “While plastic pollution continues to engulf the world, the participants are bent on reducing if not ending to the menace. During the seven days of intense deliberations, we have managed to build on and advance the revised draft text of the instrument, providing streamlined text and entering Textual negotiations on several elements.

    “Members are ready to deliver on this mandate in Busan and agree to a final text of the instrument.”

    She further mentioned that they left Ottawa, Canada having achieved both goals and a clear path to landing an ambitious deal in Busan, Republic of Korea ahead.

    Before INC-4 in Ottawa Canada, INC-1 was held in Punta del Este in November 2022, followed by INC-2 in Paris which took place in May/June 2023, while INC-3 took place in Nairobi around November 2023.

    “While our NGO was fully represented in the recently concluded INC-4 in Ottawa Canada, the last of the Conference is coming up in Busan, Republic of Korea sometime around November 2024.

    “Countries took their turn on hosting delegates and observers together,  we were hosted by the Nigeria High Commission in Canada on the 29th day of April and for the first time we shared on the National Cake”, Ibeji said.

  • Way out of Rivers crisis, by SANs

    Way out of Rivers crisis, by SANs

    Senior lawyers have suggested ways out of the political crisis in Rivers State.

    They were reacting to the relocation of the House of Assembly to the Government House where only three members sit.

    Ahmed Raji (SAN) said: “It is a matter that should be handled with extra care in the interest of our democracy.

    “Legal solutions should be the last option.

    “The matter calls for a pragmatic political solution in the interest of all.”

    Law teacher and prosecutor Wahab Shittu (SAN) said there was a constitutional issue that needed resolving.

    “The way out is for the Attorney-General of the Federation to pose a constitutional question immediately for the determination of the Supreme Court.

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    “In my view, a constitutional dispute has arisen and the resolution can only be determined by reference to the constitution – the grundnorm of the country.

    “Democratic institutions ought to be activated to resolve this issue,” he said.

    Professor of law Yemi Akinseye-George (SAN) believes the governor lacks powers to relocate the Assembly.

    He said: “He has made it impossible for the House of Assembly to exercise their functions.

    “Under the doctrine of necessity, the House of Assembly can convene anywhere possible including virtually and perform its constitutional functions including removing him from office.

    “Rivers State is too important to be turned into a spectacle of oddities that the young man has turned the state into.

    “There are only two ways out of the crises: removal or reconciliation. The ball is in Governor Fubara’s court.

    “It is doubtful if he has the capacity to retrace his steps and do the right thing that can return the state to the path of peace.”

    But Lagos lawyer Theophilus Akanwa was of the view that Governor Fubara has the powers to make an executive order relocating the Assembly to Government House pending the renovation of their demolished complex.

    “The gazette is legal and he is in order,” Akanwa said

    He added: “The way forward is that Governor Fubara should be allowed to govern Rivers State without any further interference.”

  • Bianca’s sons seek to join suit against firm

    Bianca’s sons seek to join suit against firm

    Sons of Bianca Odumegwu-Ojukwu, wife of the late Biafran leader, Chief Odumegwu-Ojukwu, Afamefuna and Nwachukwu, have applied to be joined as parties in a 2011 suit filed by Ogbonna  Ojukwu and others against the Ojukwu Transport Limited (OTL) and others.

    The judgment in the suit marked LD/794/2011 was delivered by Justice Adedayo Oyebanji in 2018.

    Justice Oyebanji, while delivering judgment in the suit, had granted possession of Ojukwu Transport Limited properties in Lagos to Ojukwu Transport Limited including No 29 Oyikan Abayomi Drive, Ikoyi Lagos.

    Chief Chukwuemeka Odumegwu-Ojukwu was a party to the suit until his demise in 2011.

    Based on the judgment, OTL, executed a warrant of possession on all its properties in Lagos with Form O, certificate of completion of execution of warrant’ obtained in July 2022.

    Following the execution of the warrant, OTL is now in legal possession of the properties listed in the Form O, including five questions raised in  suit LD1539/2012 which judgment was delivered by Justice A. M. Lawal in June 2022.

    Afamefuna and Nwachukwu have however now applied before the court to be joined as “Interested parties in the matter”.

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    They  also prayed the court to  exempt them from the already executed warrant in a case LD/794/2011 which judgment was delivered by Justice Adedayo Oyebanji in June 2018.

    They based their application on the ground that another Lagos High Court had in a judgment in 2022, on a case marked LD/1539/2012, which they filed against OTL and others, granted them possession of 29 Oyikan Abayomi Drive, Ikoyi and four others properties.

    Justice A.M. Lawal had in the 2022 judgment granted a restraining order against  interference with Afamefuna and Nwachukwu’s  possession of the properties pending the harmonisation of Ojukwu properties by OTL.

    In their application , they claimed not  to be aware of the matter before Justice Oyebanji.

    Afamefuna and Nwachukwu last year served a ‘Notice of Disobedience of Court order’ on OTL, the Ojukwus and other tenants of the property.

    In their application seeking to be joined in case before Justice Onyebanji, Bianca’s sons claimed that they were not aware of the pendency of the suit and were not included as interested parties in the case.

    They argued that it would amount to miscarriage of justice for the matter to be conclusively decided without their input as the issues in the case affect their interest

    At the resumed hearing for the fresh application for the joinder on April 22, 2024, OTL Director, Dr P Ike Ojukwu, their agent, Mr Massey Udegbe and lawyer, Chief Ifeanyi Okumah were in court while Bianca, her sons and their lawyers were absent. The case was adjourned till May 20, 2024

    Meanwhile, OTL had last year, following the judgment of Justice Lawal harmonised the management of its assets and reaffirmed Massey Udegbe and Co as its estate agent and published the same in two national newspapers.

    Of the five properties in the Bianca and sons’ suit, OTL claims that it had not been paid rent amounting to N144m for 12 years by Uche Obilor/West African Offshore Limited, occupants of 30 Gerard Road, Ikoyi, Lagos.

    It also claimed that the occupants of 32a Commercial Avenue,Yaba,  Foursquare Gospel Church, has not paid OTL any rent since 2017 while 4 Macpherson Rd,Ikoyi has been under Police ‘lock and key’ since July 2015.

    It also insisted that 29 Oyinkan Abayomi Road, Ikoyi has been unoccupied for over 20 years while 13 Ojora Road, Ikoyi is in good condition with good tenant-landlord understanding.

  • NCoS to court: contemnor not in our custody

    NCoS to court: contemnor not in our custody

    Representative of the Controller of Correctional Centre, Lagos Command, Mr. Rotimi Oladokun, has told Justice Akintunde Salvage of a Lagos High Court sitting in Ikeja that the command did not receive committal warrant of the Chairman of Confidence Cargo Freight Forwarder, Dada Aigbe.

    Oladokun, is a prison official from the Legal Unit, serving at the State Command Headquarters of Nigeria Correctional Services (NCoS) Alagbon, Ikoyi,

    He told the court that the five Correctional Centres in Lagos including Kirikiri Maximum or Medium have no record or remand warrant of a convict, Dada Aigbe in their file.

    He said he was in court sequel to the Subpoena testicandum served on the Controller of the Correctional Centre, Lagos Command on the order of the court.

     Justice Salvage  had on March 11, ordered that Aigbe be committed to prison for a period of one month until he purges himself of the contempt.

    The judge’s order was sequel to disobedience of Aigbe to appear in court after form 48 and 49 contempt proceeding were filed against him in a suit filed by the Mr. Maruf Jimoh-Akogun, counsel to a judgment creditor.

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     Jimoh-Akogun had in a suit marked in ID/3831LMW/2016 instituted by the HRM Oba Shakirudeen Adeshina Kuti for themselves and on behalf of the Ajamogun/Onikotun family of Ewu Kingdom against the Osolo of Osolo, HRM, Oba Agbabiaka Kabir Orisedeko Elemo and the Baale Mafoluku Ajao Estate, Chief Hussam Raheem Shekoni Elemo as the first and second defendants respectively

    However, Oladokun in his testimony told the court that he joined the Correctional Centre in 2012 and was serving at the State Command.

    He told court, “As a directive of the command, I was briefed about the matter. From our record, the command did not receive a committal or remand warrant.

    “We have verified from our internal communication, there was no record of Dada Aigbe.”

    Meanwhile, judgment debtors defendants/ respondents counsel, Mr K. U Okoro had filed an application dated April 29, in pursuant to Section 60b (36) and Section 94 of the Sheriff Law.

    The motion seeks relief as follows: an order setting aside the entire committal proceedings on the ground that it was served by an unknown sheriff and such further order.

    The ground of the same notice is that it was not served on the applicant.

    The judge held that he had read the objection and counter, and if he was not convinced that it was served, he wouldn’t issue the conviction.

    Okoro argued that “We are also saying that the court did not have jurisdiction to give the order. We urged the court to set aside the order and to rule in our favour and grant our relief.”

    Jimoh-Akogun in his response opposed the preliminary objection.

    He said they have filed a counter affidavit to their objections.

    He told the  court that the reason for Aigbe’s committal to prison is the complaint that he involved himself in a land matter that he is not a party to.

    He said the court had ordered a status quo on the ‘Res’ but Aigbe continued building on the land in dispute. He claimed that the ancestral family land along Airport Road, Ewu Town, Mafoluku, Oshodi, Lagos, was allegedly invaded by Dada Aigbe and his agents.

    He argued that the court had on April 2, 2024 heard how Aigbe was served by the Sheriff of High Court, Micheal Alogaga who was also subpoenaed and testified.

    “My Lord, there is evidence of service before the court. The Sheriff is under exclusive rules. I refer my lord to the provision of section 103 (1) of the Sheriff and Civil Act.”

    He further argued that the service was effected outside the jurisdiction. The service of form 49 was effected in Abuja, the service was not denied. We are saying that the Bailiff that served the contemnor is a competent person. He cited section 116 of Evidence Act to buttress his arguments.

    Jimoh-Akogun prayed the court to dismiss the preliminary objection with punitive cost.

    He noted that correctional official and the Court Sheriff has testified that the convict is not in prison and the counsel is asking the court to purge him of contempt.

    He, therefore, referred the court to the affidavit in support of the motion on notice dated April 30, 2024 filed by convict counsel. Tracy Dike, legal practitioner from of Kingsley Grays LP averred that she has the consent of the Applicant/Contemnor as well as the employer to depose to the affidavit.

    “That I was informed by Mr Dada Aigbe in the Kirikiri Correctional Centre , Olodi Apapa Lagos on March 30, 2024 at about 12 pm during a briefing on the case. I verily believe him.”

    So also, in another fundamental human rights suit instituted by Alhaji Chief Jamiu Adetunji  Kushimo against the Inspector General of Police Zone 2 Lagos, Director General Department of State Service Abuja, the  Deputy Director Department of State of  Service, Mr. Omogbenga Elesheku, Director Base Command, Department of State of  Service, Lagos and  Oludayo  Dada Aigbe were respondents.

    Tracy Dike averred that the fifth respondent was out of the country.

    In her affidavit in support of the motion on notice dated April 16, the same Dike sworn that is, “a counsel in the Law Firm of Kingsley Grays LP, Solicitors to the 5th Respondent and by virtue of which position I am conversant with the facts of this case.

    “ That I have the consent of the 5th Respondent as well as that of my employer to depose to this affidavit.That I am informed by my Principal K.U Okoro Esq. on or about 1pm and I verily believed him.

    “That however, it is imperative to state that we were unable to get in touch with the 5th Respondent ( Aigbe) who is supposed to avail us with some vital information with respect to certain issues raised by the applicant in his Motion on Notice and when we eventually did, it was discovered that he traveled to United Kingdom for a Medical check up being a cancer patient and this impediment made it impossible for him to avail us with the necessary information needed for the preparation of the Counter-Affidavit opposing the Motion on Notice of the Applicant.

    “That, by the time he returned from the medical checkup and provided us with the vital information needed to enable us to prepare the Counter-Affidavit of the 5th Respondents, the time prescribed by the rule of court had already elapsed. Unfortunately, the 5th respondent could not file his counter-affidavit within the time prescribed by the Rules of Court.”

    After listening to their arguments Justice Savage adjourned ruling on an application seeking to set aside the entire committal proceeding to June 17, 2024.

  • Lagos CP warns officers, men against extortion

    Lagos CP warns officers, men against extortion

    Hard time awaits police officers in Lagos State who extort money for bail and other offences from members of the public.

    The Commissioner of Police (CP) Adegoke Fayoade has  instructed members of the Police Duty Solicitors Scheme (PDSS) and the Legal Aid Council of Nigeria (LACON) to gather all reports regarding extortion by men of the police force and forward them directly to his office.

    CP Fayoade stated this in his address during an inaugural meeting held with members of the Lagos PDSS Advisory Committee. The meeting was the first meeting since its inauguration early this year.

    The Lagos PDSS Advisory Committee met to give an update on PDSS activities in Lagos State to the Police Commissioner. The meeting held at the CP’s office on Monday May, 3,  2024, was well attended by committee members.

    CP Fayoade insisted that bail is free in the state and promised to rid men of the state command of the cankerworm.

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    The Lagos CP emphasised that people should stop paying for bail and to make a formal complaint of officers who demand for money for any offence to his office.

    Members of the PDSS Advisory Committee include the Police, Legal Aid Council of Nigeria, the office of the Attorney General, the office of the Chief Judge of a State, Rule of Law and Anti-Corruption (ROLAC), the National Orientation Agency (NOA),  the National Youth Service Corps (NYSC), the Nigerian Bar Association (NBA), REPLACE (an NGO), among others.

    The Legal Aid Council State Coordinator, Mrs Iyabo Akingbade, told the  Commissioner of Police  that the PDSS continues to gain more ground in positively reforming the Administration of Criminal Justice system in Nigeria through the intervention of Duty Solicitors who visit police detention facilities to provide free legal services to suspects and ensure that the rights of citizens are protected.

    The NBA Lagos Vice Chair and Chair of the Human Rights Committee,  Mrs Esther Jimoh, and NBA Ikorodu representative, Mrs Aizighode Obinyan gave their respective reports on their recent PDSS visits to different police formations and that  they got commendable police cooperation. However, no reports came from Epe, Badagry and Ikeja on their PDSS activities.

    Jacob Dipo, from NBA Lagos Human Rights Committee, also added that from their PDSS visits to the different police formations, the best station so far is the Pedro Police  Division whose DPO CSP is Nkereuwem J. Joshua.

    Dipo told the CP that CSP Nkereuwen has been very cooperative with the PDSS lawyers and upholding of the rule of law.

    State Project Coordinator of ROLAC, Mrs Ajibola Ijimakinwa said agency undertakes to  train the Police Officers on PDSS and on maintenance of the rule of law especially as it concerns upholding the suspects’ rights and avoidance of human rights abuses.

    Mrs Grace Adenubi informed the meeting that the Legal Aid Council of Nigeria through the support of it’s local and International partners especially ROLAC/IDEA and  Duty Solicitors Network are making all efforts to ensure that citizens’ rights are protected and preserved using PDSS as a delivery mechanism for a better future for all Nigerians.

    The meeting agreed on the need for more lawyers to donate their time in volunteering to visit police detention facilities.

  • Meaning, application of doctrine of election

    Meaning, application of doctrine of election

    FACTS

    The Appellant was employed by the Benue State Government as Director of Civil Litigation on January 23, 1995 and he remained in that position until January 9, 1998 when he was appointed the Director-General/Solicitor-General which office was later re-designated Solicitor General/Permanent Secretary. The said appointment took effect during the military administration and the Appellant held office until May, 1999 when the civilian administration took over and inherited the Appellant.

    At the time the Appellant was appointed the Director General/Solicitor General, another person was appointed the Director of Civil Litigation. Meanwhile, the Appellant remained in the office of Solicitor General/Permanent Secretary until January 13, 2000 when he was removed at the pleasure of the Executive Governor of Benue State.

    Aggrieved by his removal, the Appellant filed a suit challenging his removal as Solicitor General/Permanent Secretary but lost. Thereafter, the Appellant went back to the High Court seeking an order of mandamus to compel the Respondents herein to re-instate him into office as the Director of Civil Litigation based on the pronouncement in the suit he lost which had held that Appellant’s removal was from the office of Permanent Secretary, a political office under the 1999 Constitution and not from the pensionable civil service appointment of Director of Civil Litigation. However, the trial High Court ruled against the Appellant and dismissed his claim before it.

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    Dissatisfied, the Appellant appealed to the Court of Appeal, Jos. The Court of Appeal dismissed the appeal. Further dissatisfied, the Appellant appealed to the Supreme Court.

    ISSUES FOR DETERMINATION

    The appeal was determined upon consideration of the following issues:

    1. Whether the Court of Appeal was right in confirming the decision of the trial High Court that the doctrine of election applies in this case to preclude the Appellant from suing for an order of MANDAMUS to issue to give effect to his statutory employment.

    2.Whether the Court of Appeal was right in holding that the Appellant has failed to establish sufficient legal interest and the existence of a public duty for which an order of mandamus can be issued to compel the Respondents to act in his favour.

    APPELLANT’S SUBMISSION

    The Appellant, in the brief he personally signed, submitted that the essence of the doctrine of election is that equity cannot allow a person to take a benefit under an instrument and at the same time assert a right, which is inconsistent with the provisions of the instrument. Referring to Exhibits A and B (his Appointment Letter and Letter of Confirmation of Appointment respectively), he submitted that he was not put to any election in any of the documents. Thus, the Courts cannot import into the contract a doctrine that none of the parties envisaged.

    Appellant further contended that the appointment which the Respondents gave him in Exhibit A and Exhibit b has not been brought to an end till date. He stressed that the application for Mandamus relates wholly to that appointment as Director of Civil Litigation. He contended that until he is properly removed from office in accordance with Civil Service Rules, there exists a legal right to which he is entitled and the person to give effect to that right is the employer, the Respondents who owe him the duty to post him to an office, pay him salaries, allowances and all other benefits to which he is statutorily entitled.

    The Appellant further submitted that Mandamus does not issue only to execute an existing judgment but that once it is shown that the appellant has a legal right and the respondents has a correlative duty to that right, Mandamus will be issued to protect the right and render it effectual.

    RESPONDENTS’ SUBMISSION

    Respondents’ counsel submitted in his brief that the appointment of the Appellant as Director, Civil Litigation was relinquished by the Appellant who “elected” for a higher appointment. He never applied for any leave of absence but elected to take the higher post. He ought to have properly disengaged from office before taking on another appointment and that this brings in clear focus the doctrine of election as defined by Black’s Law Dictionary.

    Respondents’ counsel submitted that the Appellant’s earlier suit was dismissed in its entirety including the consequential order in which he sought to be reinstated as Director of Civil Litigation and therefore, there was no enforceable order of the Court directing the Respondents to act which they failed and could be compelled by an order of Mandamus.

    Relying on Order 43 Rule 4(1) of the High Court of Benue State (Civil Procedure) Rules 1998, applicable at that time of the case, Respondents’ counsel submitted that there would have been substantial hardship and/or substantial prejudice to the right of the person appointed to the office abandoned by the Appellant for a higher office.

    RESOLUTION OF ISSUES

    The Court quoted with approval the Black’s Law Dictionary, 9th Edition at page 595, where it defines election as the exercise of a choice from several possible rights or remedies in a way that precludes the use of other rights or remedies; an obligation imposed on a party to choose between alternative rights or claims, so that the party is entitled to enjoy only one. The Court thus held that that the Appellant chose and enjoyed the rights and privileges of a higher office distinct and separate from the office of Director Civil Litigation. The Court further held that had the Appellant not accepted the higher office appointment and stuck to his pensionable employment as Director Civil Litigation, he would not have been removed unceremoniously.

    The Court however held that a public servant in the established pensionable cadre of the Federal or State Public Service has a legal status and ex hypothesis a right to remain in service until properly removed in accordance with the Civil Service Rules applicable to him. But this was not the case here. See Federal Capital Development Authority v Naibi (1990) 3 NWLR (pt.138) 270; Shitta-Bey v Federal Public Service Commission (1981) 1 SC 40.

    The Court held that an order of mandamus is an order issued by a Court of law, usually the High Court, to compel the performance of a public duty in which the person applying for same (mandamus) has sufficient legal interest. And to succeed in an action for mandamus, it is mandatory for an Applicant to show that he has a legal interest or right which he seeks to protect. The Applicant must also show the existence of a public duty on the part of the person or body against whom he applies for an order of mandamus. See Ohakim v Agbaso (2011) 47 NSCQR 324 at 367.

    The Court held that the Appellant had lost any right to the office of Director Civil Litigation when he elected to accept appointment as Permanent Secretary/Solicitor General, an office with higher responsibility and conditions of service, and as such, the Respondents did not owe the Appellant any public duty which they could be compelled to act through mandamus. The Court thus held that the Appellant failed to establish sufficient legal interest in the subject matter of this case and the existence of a public duty for which an order of mandamus could be issued to compel them to act in his favour.

    HELD

    The Court held that there was no merit in the appeal and accordingly dismissed same.

    APPEARANCES

    I. Akighirga, Esq.                                                                                  

    – For Appellant(s)

     

    No representation for the Respondents.

    Compiled by LawPavilion

  • ‘Courtroom battles, arbitration reflect energy transition challenges’

    ‘Courtroom battles, arbitration reflect energy transition challenges’

    A professor of International Law, Damilola Olawuyi (SAN), has said courtroom battles and arbitration challenges filed against some energy transition programmes show the deep fragmentations, uncertainties, and implementation gaps that demand greater clarity.

    The senior lawyer, who is also a United Nations Independent Expert on Business and Human Rights, made these remarks while delivering a keynote lecture at the Gulf Cooperatives Conference held at the prestigious Harvard University in United States.

    The theme was  “Harmony in Collaboration: Unleashing Gulf Creativity.”

    Prof. Olawuyi  emphasised the need for solidarity and diplomatic cooperation to jointly tackle these pressing issues, recognising the interconnectedness of all nations.

    Olawuyi, who is the Deputy Vice Chancellor, Afe Babalola University, Ado Ekiti(ABUAD) called on resource rich gulf countries to develop common, cooperative and aligned positions that will ensure sustained progress on all aspects of the SDGs through strategic trade and investment alliances.

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    He noted: “Many of the complex problems facing our world today cannot be addressed in isolation, ranging from the problem of climate change, spread of pandemics and zoonotic diseases, to issues of water and food security, clean energy transition, technology development, and the enthronement of stable peace in conflict affected regions amongst others.”

    Prof Olawuyi, who is also the global Vice Chair of the International Law Association (ILA), called for increased solidarity and strategic trade cooperation to advance all aspects of the United Nations Sustainable Development Goals (SDGs).

    While noting Africa’s potential as a hub for strategic trade partnerships, he called on African governments to deploy the best talents with specific expertise and knowledge of the Gulf region to unlock these investment potentials.

    The conference also featured the formal public presentation of Olawuyi’s latest book titled “Net Zero and Natural Resources Law, published by Oxford University Press”.

    The 400-page book highlights the latest developments in natural resources law and policy in light of ongoing worldwide efforts to achieve the clean energy transition. 

    With case studies from Africa, Asia, Middle East, Europe, Australasia, and North and South America, the book analyses how legal and regulatory systems are responding, and can better respond, to the wide range of challenges and risks in the clean energy transition.

    Consideration is also given to contract negotiation, drafting techniques, financing and trade integration tools needed to promote coherence and coordination in the implementation of energy transition programmes.

    At the same time, the rush for minerals needed to manufacture clean energy technologies raises fundamental questions, most crucially, on how to ensure the exploration and development of energy transition minerals in a manner that does not exacerbate resource conflicts.

    The 22 chapters of the book examine the wide range of legal risks in the clean energy transition and how policymakers, lawyers and regulators can better respond to them.”

    He noted that this new book outlines the risk mitigation strategies and contractual techniques – focusing on net-zero and climate aligned financing, low-carbon business models, green procurement, climate-smart infrastructure development, transparent climate disclosures and reporting, gender justice, and other sustainability safeguards — that are required to ensure a just and inclusive energy transition.

    The conference brought together high-level diplomats, business executives and leading experts from across the world, including H.E. Jasem Al-Budaiwi, Secretary General Gulf Cooperation Council, H.E. Amb. Dr. Mohammed Al Hassan, Permanent Representative of Oman to the United Nations, H.E. Al-Zain Al-Sabah.

    They also include Ambassador of Kuwait to the United States, H.E. Dr Ahmad Al Sayed, Minister of State of Qatar for Foreign Investment and Trade, Maryam Bin Theneya, Second Deputy Speaker, Federal National Council of the United Arab Emirates, and H.E. Deemah AlYahya, Secretary-General Digital Cooperation Organization (DCO) amongst other notable speakers.