Category: Law

The 1999 Constitution provides for one Supreme Court, but there are agitations from various fora for the Supreme Court to be split into divisions. How will this work?

Division of the Supreme Court is possible. The Chief Justice of Nigeria (CJN) can do that administratively. For instance, there is only one Court of Appeal in Nigeria but we have 20 divisions. It is a creation of the President of the Court (of Appeal). So also the Chief Justice of Nigeria can create divisions of the Supreme Court and site them anywhere he likes, and he is the one to post justices there to hear cases from appeals from the Customary Court of Appeal and the Sharia Court of Appeal in that zone. For example, in the Southwest, we have the Court of Appeal sitting in Lagos, we have the Court of Appeal Division in Akure, and Ekiti, so any appeal to the Supreme Court from those three divisions can be heard by the Supreme Court divisions situated in that zone. So, division of the Supreme Court is not re-creation of the Court, it is just division of the Court for administrative and justice convenience.

Assuming the government gives the nod for expansion of the Supreme Court into divisions, how will such divisions handle conflicting judgments?

The issue of conflicting judgments can be stopped. In fact, once you have those divisions like in the Court of Appeal, we have the website of the Court of Appeal where all judgments delivered by each division will be sent. It will be downloaded for all the Justices of the Court of Appeal, so on every point of law, every type of case – whether land matter, criminal matters, appeal, pre-or post-election matter – if there is a decision in Abuja today, as soon as the judgment is ready, it will be downloaded on the website. We have divisions in the Court of Appeal; the judgment will be sent to the email of every Justice of the Court, so that they can know at every point in time decisions in various divisions of the Court, thereby eradication conflicting judgment in the Court of Appeal.

In the last two or three years, did you hear anyone talking about conflicting judgment in the Court of Appeal? Especially in election matters, because that is where people shout a lot and say they said one thing in Ilorin and they said another thing in Katsina. The President of the Court of Appeal has made it a point of duty to every justice of the Court of Appeal to make sure that as soon a judgment is delivered, it should be send to ICT people, and it will be sent to all Justices immediately. The same thing can happen in the Supreme Court.  They have a website and portal and each of the Justices have email, so, whenever any judgement is delivered either in Abuja, it will be circulated to all the Justices, and these days, we have all the online reports.

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Immediately something is said in the Supreme Court, everybody would have been reading it by evening online, so, any serious Justice who reads something similar to what he has before him will definitely say they should send that judgment to him or will ask the staff or the DCR (Deputy Chief Registrar) or Chief Registrar or whoever to get the judgment to them in that division so that they can study it and see what was decided and they can now apply it to a similar situation or similar case that they have.

We should have a system whereby judgments are sent to Justices and the DCR or Chief Registrar of each division, and they take it as a duty in making sure that all judgments being delivered are gotten and circulated to Justices immediately. This will completely minimise issue of conflicting decisions.

The Supreme Court is not fully complemented in terms of number of Justices. How can the apex and appellate courts get their full complement to reduce the appeals in their dockets and make them more effective?

It is funding that usually hinders appointment of judges, because when you want to appoint judges, you must provide accommodation, staff, vehicles and back up cars; you must furnish their houses, you must provide conducive offices for them to work with. So, it is for the government to fund the judiciary adequately so that whenever they want to do any appointment, they will be prepared, so that as the judges are sworn in, their driver, their car and their orderly are ready for them, their accommodation, everything fully furnished. That way, the job will be comfortable and doing the job will not be difficult for the judges, also, computerised systems should be there for the judge to work with. If you want to fund judiciary, make sure you pay them their entitlements once and for all, let them have it at the beginning of every budget year so that all the plan of the judiciary can be easy to implement because they would have already make requests for their needs. Once it is approved, why do you have to keep it (the funds)? When they read the budget and it is signed into law, the ministry will still have to wait for three months to four months before the money is actually there and they won’t give them the bulk of the money at times, and at times, the little they give, the NJC (National Judicial Council) has to husband it to ensure equitable distribution of the money appropriated to the courts. Once funding problem and structural development is out, and you prepare for the welfare packages of the Judges, together with all they need, the job will go on.

The full complement of the Supreme Court is about to be done; they have about 13 Justices now, but if the full complement is put in place, it should be 21. There is nothing wrong if the National Assembly increases the number from 21 to 40 even 50 for Supreme Court Justices, so as to take care of the division we are taking about so that all infrastructure needed can be put in place. It is a matter of planning, determination and political will on the part of government and those concerned to do it.

What is your take on the welfare of Justices, particularly their salaries

The salary of judges, to me, is nothing to write home about. 2007 was the last time they increased the salary of judges and that is not so with other arms of government, it is only the judiciary that they didn’t deem it fit to increase their salary. Is it until lawyers go to court to canvass for increment in salary of judges before government does it? That is not a serious attitude from the government. The judiciary is a vital arm of the government; there will be no government and democracy without the judiciary because all the rule of law and democratic setting we are taking about is about having operators of the rule of law and justice to the people. Even in the National Assembly, didn’t they quarrel? The political party quarrel, where do they go? Is it not the Court? Is it not Court that is hearing pre and post-election matters? That is what the constitution says and they cannot neglect that vital and indispensable arm of government. So, the judiciary matters and the earlier they do the needful for the judiciary, the better for the nation for the democracy and rule of law.

What is your opinion about the requirement/criteria for appointment of judges from the Bar and academia, rather than from the Bench alone?

Whether you are from the bar or academia, the most important thing is that you must be a lawyer, a legal practitioners. If it is High Court, you must have practiced for not less than 10 years, if it is Court of Appeal, it is 12 years, and 15 years for Supreme Court. The argument is not whether someone is qualified or not qualified, what we are saying is that we have systems of court; some people have been appointed into that court. Even as a lawyer, if you want to be appointed, you have to be nominated to the court by people, you must have good character, you must have good judgment, you must have been partaking in hearing and determination of suits from trial to judgment so as to have experience because it matters, your experience matter, it counts.

So, those advocating that it is only justices or judges from the system that should be promoted, have a solid case, and the case is that many people want to start from the top. We have some magistrates that have been serving for the past 20 years; some of them are just Chief Magistrate, some of them are Deputy Registrars in Courts. If you talk in terms of experience, won’t you think that a Chief Magistrate who has been there for 25 years will have more experience than someone just starting from the top? Not that we don’t want lawyers outside to be at the Supreme Court, but it’s because we want the best for the country. We say come and be part of the inside. For instance, some lawyers have gone into politics and all the rest, so if such lawyer is now aspiring to start from Supreme Court or Court of Appeal, we believe that it is best to pick those who are already on the job, like Justices of the Court of Appeal. Some of them have served as long as eight to 10 years before they are elevated to the Supreme Court. Some of the High Court judges have been there for 15 to 20 years before they are elevated to the Court of Appeal, so, in terms of learning and experience – because lawyers come to them and argue every day – how many lawyers can say they come to argue cases or matters before them every day like it’s being done before Judges who are already on the job every day? Different experiences will be coming to judges who are already in, they too are human beings expecting that they will get to the pinnacle of their careers one day; they want to get to the apex court, so it will demoralise some of them if we are just bringing a lawyer to go and start from the Supreme Court just because he is a lawyer or a Senior Advocate, with every due respect to those who are calling for that, I want them to look at that aspect.

We are not saying that it is not possible to appoint lawyers and academia into Supreme Court or Appeal Court, but we have to weigh the option of not stagnating some people on their job and dash their hope, it demoralises them; this is not good for dispensation of justice.

What do you think of Chief Afe Babalola’s  suggestion that retired Justices should be co-opted into election tribunal?

I agree with the suggestion. The reason is that there is delay in administration of justice already, there is delay in all strata of administration of justice, though it is not the Judges who are causing the delay but because of enormous workload before the courts. Judicial officers are not enough at all, for instance in the High Court, we have 20 judges and each of them have nothing less than 400 cases, and more are still coming. A Judge will have had like 1,000 files before the end of the year. So, if you multiply that with 20, how will they cope?, so judiciary needs to be strengthened by appointing more hands, provision of more courts and infrastructure, funding and personnel for judiciary officers appointed.

Already, Judges are not enough, and then there are election matters to handle. They started this since last year, before the primary election when INEC (Independent National Electoral Commission) rolled out the election timetable, cases started – they call it pre-election matters – they have 180 days to determine pre-election matters, they will come to us once they finish. The Court of Appeal has 60 days to determine the Appeal, Supreme Court also has 60 days to determine the appeal, that is if the appeal goes from Court of Appeal to Supreme Court, that is just for pre-election. In between, while we have not finished pre-election matters, post-election matters come in. Even the Constitution says whatever complaints you have against jurisdiction of tribunals, against competence of the petition, leave it till the end of the hearing, but some lawyers will still bring interlocutory appeal to the Court of Appeal, they will proceed from Court of Appeal to Supreme Court, so pre-election has lost its name, pre-election is being heard long after post-election has taken place and even concluded. To me, it is not good in the administration of justice. All cases will be put on hold until pre-election and post-election matters are finished at the Court of Appeal and Supreme Court.

We rarely have time to attend to any other cases except pre-election and post-election matters and that will go on for at least one year and three months, so, all other cases will be on hold. By the time we return from that election, another rounds of election will start next year, in fact from November this year, we have four to five states like Kogi, Edo, Imo, Ondo that will hold intermittent elections and Judges will also be involved again, and any judge that will be involved will have to put off all other matters because the law says pre-election and post-election matters must be giving priority. When will it end?

It is good if retired Judges or Justices that have the strength can be called on, because pre-election and post-election matters is not a child’s play. Any Judge involving in it must be mentally alert, you must be vast in electoral processes because it is not for dull minds, and is not for lazy people or tired hands. We still have some retired Justices who are still mentally alert, so, the law can provide for them to be co-opted into the tribunal and that will relieve the Justices of the Court of Appeal and that of the Supreme Court and administration of justice will now flow in accordance with what the constitution says that you must give right to everybody to be heard. In fact, it is discriminatory and against the principle of the Constitution of fair hearing for you to be suspending some other people’s cases for another case just because it is a political matter.

So, pre- and post-election matters should be determined before swearing-in of winners?

As the name implies, pre-election matters must be matters instituted and determined before the holding of elections conducted by INEC. It is strongly suggested and advocated that pre-election matters be determined before the holding of general elections and post-election matters ought to be determined to finality before the winner of an election is sworn in into office for the mutual benefit of all stakeholders in electoral process and adjudication.

How can intra-party pre-election matters be solved

Another thorny issue of electoral jurisprudence is the need to remove from the Constitution and Electoral Act 2022 pre-election matters involving political parties and their members.

I am of the view that Section 29 (4) 5) (6) and Section 84(14) of the Electoral Act should be removed from the Electoral law.

The Apex Court has consistently decided that it is not the business of the court to select candidates for elections for political parties based on its long and enduring decision in ONUOHA vs OKAFOR (1983) 2 SCNLR 244; (1983) 14 NSCC 494 at 501 Per Obaseki JSC said: “The question that therefore arises is whether the court can justifiably interfere under any guise with the free exercise of this right by a political party. I think it cannot in law do so. The exercise of this right is the domestic affair of the NPP guided by its constitution. There are no judicial criteria or yardstick to determine which candidate a political party ought to choose and it’s the judiciary is therefore unable to exercise any judicial power in the matter. It is a matter over which it has no jurisdiction. The question of the candidate of a political party will sponsor is more in the nature of a political question which the courts are not qualified to deliberate upon and answer.”

The above position of the Supreme Court was reiterated in the case of DALHATU V TURAKI & ORS (2003) 15 NWLR PART 843 PAGE 310 at 335 M-G Per Kastina-Alu JSC later CJN Rtd. I believe the position still holds way. However, the Courts have been given limited jurisdiction under Section 84 (14) of Electoral Act 2022 and Section 285 (14) (a) (b) (c) of the 1999 Constitution (as amended) to adjudicate over party primaries as pre-election matter where an aspirant in a party primaries complains about breach of the guidelines of his political party and the Electoral Act. Most members of the public have misconstrued this jurisdiction of the courts as tantamount to using the court to subvert the will of party members who have nominated a candidate for the political party whenever the court finds that the primary was conducted in breach of electoral laws or where the aspirant who approached the court is declared by the court to be the winner of the party primary. Many have criticized the court of judicial imposition and selection of candidates for political parties. This is far from the truth. The court is only called upon to interpret the laws passed by the National Assembly.

I am of the view that the earlier pre-election matter is removed from electoral laws the better it would be for the political parties and our nascent democracy. To my mind, the provision of the Constitution and Electoral Act all deal with issue of qualifications of candidate elected at primaries, all of which can be dealt with adequately in a post-election matters pursuant to Section 134 (1) a and of the Electoral Act 2022.

In view of the provisions of Sections 65, 66, 131, 137,177 and 182 of the Constitution, there’s no need allowing an aspirant who has lost in a party primary to litigate issues of nomination of candidate for his party under Sections 29 and 84 of the Electoral Act 2022, this will greatly burden of the court and tribunals in trials and appeals on pre-election matters and in courts. Whenever election period comes round, and party primaries begin, the courts have always put on hold all other matters civil and criminal cases for almost a year because of electoral litigations on pre and post-election matters, I believe that any party member who feels that his party has short-changed him in primary elections can approach the civil courts to claim damages for any loss incurred by him or her. See the case DALHATU V TURAKI (Supra).

INEC has already been given authority to screen and examine the documents pertaining to eligibility or otherwise of a candidate and whether such candidate meets the criteria laid down by the 1999 Constitution. Where it is found that a political party has sponsored unqualified or ineligible candidates, INEC has power to stop such a candidate and the political party from participating in the elections as provided under Section 84 (13) of Electoral Act 2022.

Why pre and post-election matters should be determined before swearing-in of winners

As the name implies, pre-election matters must be matters instituted and determined before the holding of elections conducted by INEC. It is strongly suggested and advocated that pre-election matters be determined before the holding of general elections and that post-election matters ought to be determined to finality before the winner of an election is sworn in into office for the mutual benefit of all stakeholders in electoral process and adjudication.

What will life after retirement be?

I have no fear about life after retirement; the thing is that I’m not lazy; I will always find something to do. I can write a book, I can involve in delivering lectures in schools. So, those ones too are jobs. Government may also invite me to do one thing or the other, so I don’t have anything to fear because being a Judge, if you like yourself, you don’t just go and sleep because you have retired, the only thing is that you take things easily, don’t just go and sleep, exercise your brain, read books, write articles, there are so many things I can do, so, I don’t have any fear of the unknown.

Any regrets so far?

As far as I’m concerned on this job, I have no regret. I have no regret doing my job, though on the road of life, there are ups and downs. If you say regret, it means you are not interested in the job you are doing. If someone losses his person, it is a regret, for instance, I lost a son when he was 16. He was very brilliant. It brings tears to my eyes whenever I remember, but life must go on. That is how God wants it, because for everything you have to be grateful to God.

Who takes what after a divorce? Does the law adequately protect women’s property rights at the collapse of a marital union? In the light of rising divorce rates, Isimeme Andrew examines the issue under the law.

It was a very busy day at the office today and Effiong had to spend the night at his friend’s Apartment again. He couldn’t adapt to the collapse of a once beautiful family. The frequent fights, arguments have finally degenerated into an unending chaos leading to an abrupt separation between his parents. It was finally time to hear the final verdict of the judge regarding the divorce petition filed by Mrs. Adeaze against her husband Mr. Amadi after several complaints of his infidelity after 25 years of being married to him.

  Judgment was given and parties are now officially divorced. Mrs. Adeaze has refused to vacate the property despite the dissolution order according to her “she will rather die than give up a property she jointly built with her husband”.

The dilemma remains who takes what,  given the fact that Mrs. Adeaze was only married to her husband traditionally -what a typical Igbo man will call payment of Ikwu ugwo isi (bride price)?

Marriage under Nigerian Law

The Nigerian Law recognises three kinds of marriage, namely: Statutory Marriage, Customary marriage and Islamic marriage

Under the customary and Islamic marriage, a woman’s right to own property varies and is determined by culture where the marriage takes place. Nigeria has diverse cultures and traditions. For instance, a woman married under the Igbo customary law is not permitted to own properties to the exclusion of her husband and at divorce, she is not entitled to any property, as she is generally regarded as the man’s property and is not expected to entertain any form of equality.

Conversely, the Idoma community allows women to own properties separate from their husband, invariably she can as well inherit family property at divorce. The situation is different with respect to the marriage celebrated under the Act, otherwise referred to as statutory marriage, which allows a woman to own property even when an order for dissolution of the marriage is granted by the court. Usually the court exercises its discretion to ensure that family properties are divided equitably and fairly.

The combined provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Matrimonial Causes Act 1973 reinforces the right of a woman over family properties at divorce.

Importantly, Section 43 of the Constitution provides: “Every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria’’.

This section exclusively states that citizens of Nigeria are free to acquire and own immovable property, this immovable property includes fixed property like lands, factories etc. Every citizen of Nigeria is thus entitled to own immovable property according to Section 43 of the Nigerian Constitution regardless of the location, locality, gender and tribe.

In addition to this section a non- Nigerian woman married to a Nigerian husband can own properties in Nigeria only on the condition that she becomes registered as a citizen having fulfilled the necessary conditions for registration after marriage (1). Consequently, upon registration as a citizen she falls under the category of citizens who can conveniently own properties in Nigeria.

Section 42 of the Constitution of the Federal Republic of Nigeria provides for the right to freedom from discrimination. It states;

“A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not by reason only that he is such a person be subjected either expressly by; or in the practical application of any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinions are not made subject;

From the combined provision of Section 44 and 42 of the constitution, it goes without saying that the right to own properties is not restricted to gender or marital status.

The above provisions imply that every citizen, whether male or female has the right not to be discriminated against on any basis.

Under the Matrimonial Causes Act 1973, section 72 with respect to settlement of property provides as follows: “The court may, in proceedings under this act, by order require the parties to the marriage, or either one of them, to make, for the benefit of all or any of the parties to, and the children of, the marriage, such a settlement of property to which the parties are, or either of them is, entitled (whether in possession or reversion) as the court considers just and equitable in the circumstances of the case.”

This provision implies that the court recognises the beneficial interests of the spouses at divorce.

Thus, making the right of women to property at divorce explicit. However, this right is not automatic as a spouse who claims interest in property is required to show evidence of financial contribution to the purchase of the property. In the case of Essien v Essien (2009) 9NWLR (pt. 1146) 306, 331, the court stated that direct financial contribution to the acquisition of a matrimonial home or the repayment of a mortgage be established in other to infer joint ownership. In Amadi v Nwosu (2); Sodipe v Sodipe (3)similar principle was upheld by the court.

It our view that the aforementioned provision applies to marriage under the Act and may not make allowances for marriages under the  customary and Islamic law perhaps given the varying provisions of peculiar customary and Islamic law with respect to right of married women to properties. However, the provisions the Married Women Property Act 1882 has laid to rest the arguments erupting from this very controversial discuss.

Mrs. Adeaze being married under the Igbo customs and tradition which limits women’s right to take over the property built with their spouse during the subsistence of the marriage at divorce, holds no water having regards to Married Women’s property Act (MWPA), 1882. Section 1 of the Act (4) provides thus:

“A married woman shall in accordance with the provisions of this Act, be capable of acquiring holding and disposing by will or otherwise of any real or personal property as her separate property in the same manner as if she were a feme sole (5), without the intervention of any trustee”

It is pertinent to note that the MWPA does not regulate the redistribution or readjustment of matrimonial property between spouses on the dissolution of a statutory marriage.The primary aim of the MWPA in respect of disputed property between spouses is for the court to determine questions of ownership of property between spouses as it thinks fit. Whenever there is a property-related dispute between spouses, therefore, Nigerian courts interpret the provisions of the MWPA strictly to determine the extent of a spouse’s interest in the property of the other spouse. For a spouse to succeed, he or she must prove having made a direct financial contribution to the purchase or development of the disputed property based on the ordinary rules of property law

Mrs. Adaeze is entitled to the property she jointly owned with her husband at divorce, notwithstanding the position of the Igbo customary law.

Also, there is a resulting trust that naturally arises when both parties acquire property during the pendency of their marriage.[6] In such situations, the law presumes that the parties intended that the property be shared. The reasoning behind the concept of a resulting trust is essentially that it would be unfair to deny the individual who financially contributed to a property some sort of interest in that property.7 Accordingly, under resulting trust, Mrs. Adaeze who contributed to the purchase of the property holds a beneficial interest and her husband becomes the trustee.

Furthermore, any custom that seeks to discriminate against a woman to own property jointly acquired during the pendency of a marriage will go against the principle of equity and fairness (7). Generally, customary law is recognised as a source of law in Nigeria. However, a custom sought to be enforced must not be repugnant to natural justice, good conscience and equity.

The constitution of the Federal Republic of Nigeria being the grundnorm acknowledges the right of every citizen to own moveable and immoveable properties and the freedom against discrimination by reason of sex, birth etc. (8) Thus, it is our argument that a custom that prevents the right of a woman over property at divorce is clearly in contravention and inconsistence with the provision of constitution and shall be void to the extent of its inconsistency(9) and is therefore repugnant to natural justice, equity and good conscience (10).

CONCLUSION

Notwithstanding the position of the law, this custom is very much in practice. Thus, there is need for a paradigm shift from this practice. It is the view of the writer, that the Matrimonial Causes Act of 1973 be amended, adding an addendum that would encompass the area of protecting the right of a woman over family property married under customary law at divorce, as the right to own property is constitutional, thus should not be limited simply because the marriage was contracted under customary law and not statutorily.

Although, the Matrimonial Causes Act 1973 establishes the right of a woman over property in divorce, under the stringent proof of financial contribution. More often than not, this strict approach may lead to a miscarriage of justice to the woman who has made indirect financial contributions to the purchase of the property. Thus, it is the opinion of the writer, that the court in exercising its discretion in settlement of property established under section 72 of the Matrimonial Causes Act 1973, adopts an equity-based approach, as this will not only take cognizance of any indivisible contribution that have been made towards the acquisition of the property to be settled, as well be fair and just.

Isimeme Andrew is a lawyer at Novalux Legal Practitioners. She can be reached via Isimemeandrew4@gmail.com

DISCLAIMER: This article is only intended to provide general information on the subject matter and does not by itself create a client/attorney relationship between readers and our Law Firm or serve as legal advice. We are available to provide specialist legal services on specific circumstances.

Footnotes

[1] . Subject to the provisions of section 28 of this Constitution, a person to whom the provisions of this section apply may be registered as a citizen of Nigeria, if the President is satisfied that he is a person of good character; b. he has shown a clear intention of his desire to be domiciled in Nigeria; and c. he has taken the Oath of Allegiance prescribed in the Seventh Schedule to this Constitution. 2. The provisions of this section shall apply to any woman who is or has been married to a citizen of Nigeria.

[2] (1992) 6 SCNJ 59

[3] (1990) 5 WRN 98

[4] Married Women’s Property Act 1882. NB: this Act applies in Nigeria as a Statute of General Application. Thus, applicable to married women generally, irrespective of whether the married was contracted under customary law, Islamic or statutory law.

[5] A woman without a husband, especially one that is divorced

[6] The legal concept of “Resulting Trust” in family law is one tool which is often utilized in order to make property division more equitable (i.e fair) as between spouse, particularly where spouse contributed financially to the purchase of the property. 7 “Resulting Trusts in Family Law” ‘Jasonpaulhowie.com’.

[7] In Ukeje v Ukeje, however, the Supreme Court pronounced a similar custom to be discriminatory and unconstitutional and upheld the right of a girl child to inherit properties

[8] The Constitution of the Federal Republic of Nigeria 1999 (as amended), sections 43 and 42.

[9] Ibid, section 1(3).

[10] In Mojekwu v Mojekwu the Court of Appeal declared the “Oli-ekpe” custom of the Nnewi people of Nigeria to be discriminatory. This custom allows a brother to inherit his late brother’s estate to the exclusion of the latter’s wife and female children.94 Tobi JCA queried the “Oli-ekpe” custom and considered it to be repugnant to natural justice, equity and good conscience, and inconsistent “with equity and fair play in an egalitarian society.

The Federal High Court sitting in Lagos, Monday, remanded a defendant Tata Oluwafemi Michael in the facility of the Nigerian Correctional Services, Ikoyi over alleged an N1,843,000,000 fraud.

Justice Peter Lifu made the order following Michael’s ‘not guilty’ plea to a nine-count charge preferred against him by the Police Special Fraud Unit, Milverton Road, Ikoyi, Lagos.

Prosecuting Counsel Chukwu Agwu told the court that the alleged offences were committed between 2020 and May 2022 in Lagos State.

He alleged that the defendant through his Guaranty Trust Bank and First Bank of Nigeria accounts fraudulently obtained from one Danyan Udoh “various sums of money under the guise that he would use or invest same in Interest Yielding Businesses, which he knowingly or reasonably ought to know that such fund is, or forms part of the proceeds of your unlawful act.”

Agwu stated that the offences contravened Section 18 (2) (b) and Section 18 (3) of the Money Laundering (Prevention and Prohibitions) Act, 2022.

Following Michael’s plea, defence counsel Mr. J.N  Atawodi apologised to the court for not filing a written application for bail and urged the court to allow him to move the application orally.

But Agwu opposed the application, submitting that the defendant placed nothing before the court, hence could not make an oral bail application.

In his ruling, Justice Peter Lifu held that the court had inherent jurisdiction to adjudicate on criminal matters.

He further held that bail was a constitutional right guaranteed under Section 36 of the 1999 constitution.

He granted the defendant bail in the sum of N100 million with two sureties in the like sum.

The court ruled: “I have considered the fact that the defendant has been in custody for more than 40 days without trial for a bailable offence. I have decided to consider the liberty of the defendant at this pre-trial stage.”

“In that wise, I have advised myself by the principle of precedence, and legal authorities. I hereby admit the defendant to bail in the following terms and conditions:

“N100m and two sureties in the like sum. The two sureties must swear to an affidavit of means and attach photographs of themselves and that of the defendant.

“One of the sureties must be a civil servant of the State or Federal level and not below grade level 14.

“The other surety must provide evidence of tax clearance and registered title of a landed property. The claims of the Defendant and that of the sureties shall be verified.

“The Defendant is to be remanded in Ikoyi Correctional Centre until his bail claims are perfected. The case is adjourned till 18th October 2023 for hearing.

In this piece, Oyetola Muyiwa Atoyebi (SAN) explores the establishment of the Special Control Unit Against Money Laundering (SCUML) under the Money Laundering (Prevention And Prohibition) ACT 2022, its operations, and its duties.

In years past, the EFCC (Economic and Financial Crimes Commission) has been tasked with the responsibility of coordinating various organizations involved in fighting money laundering and enforcing all laws in Nigeria about economic and financial crimes, both for financial institutions and non-financial institutions. This is so because Nigeria’s Financial Intelligence Unit (FIU) is officially the EFCC.

Before the enactment of the MLA, 2022, the Federal Government established the Special Control Unit Against Money Laundering (SCUML) within the EFCC in 2005 by executive order, with the aim of specifically operationalising the EFCC’s functions as they relate to designated non-financial institutions (DNFIs). Today, in Nigeria, the SCUML manages, supervises, monitors, and regulates DNFIs in terms of MLA compliance criteria. Until the passage of MLA 2022, the SCUML was established through a Federal Government executive order.

This article will explore the establishment of the Special Control Unit Against Money Laundering (SCUML) under the MLA, 2022, its operations, and its duties.

Establishment of SCUML

The Money Laundering (Prevention and Prohibition) Act, 2022, provides a comprehensive legal and institutional framework for preventing and prohibiting money laundering in Nigeria. It establishes the Special Control unit under the Economic and Financial Crimes Commission. The Money Laundering (Prevention and Prohibition) Act, 2022, is divided into Five Parts with thirty-one sections. It also includes the Objectives of the Act, which were notably absent in the repealed 2011 Act.

The Special Control Unit against Money Laundering was established under Section 17, PART III of the MONEY LAUNDERING (PREVENTION AND PROHIBITION) ACT, 2022.

SECTION 17 of the Act states:

There is established a department under the Economic and Financial Crimes Commission to be known as the Special Control Unit Against Money Laundering (in this Act referred to as “the SCUML”) which shall be responsible for the supervision of designated non-financial businesses and professions in their compliance with the provisions of this Act, relevant laws and applicable regulations.

The functions of SCUML are to: Register and certify designated non-financial businesses and professions in accordance with the provisions of this Act, relevant laws, and applicable regulations;

Monitor and supervise designated non-financial businesses and professions in accordance with the provisions of this Act, relevant laws, and applicable regulations;

Take necessary enforcement actions to ensure compliance with this Act, relevant laws, and applicable regulations;

Conduct off-site, on-site, and on-the-spot checks, and inspections of designated non-financial businesses and professions for the purposes of money laundering control and supervision;

Establish and maintain a comprehensive database of designated non-financial businesses and professions;

Receive cash-based transaction reports and currency transaction reports from designated non-financial businesses and professions in accordance with the provisions of this Act;

Sensitize designated non-financial businesses and professions regarding their responsibilities under this Act; and

Perform other functions necessary to fulfill its responsibilities under this Act or any other relevant laws and applicable regulations.

However, the MLA, 2022, has provided a statutory basis for the independent existence and operation of SCUML-even though its administrative operations remain under the purview of the EFCC. The MLA 2022 designates SCUML as the authority directly responsible for the supervision of DNBPs in their compliance with the provisions of the MLA 2022, relevant laws, and applicable regulations. In essence, the EFCC-as a whole is responsible for FIs, while the SCUML regulates DNBPs.

Role of SCUML Under MLA, 2022

The Special Control Unit against Money Laundering (SCUML) is a department under the Economic and Financial Crimes Commission charged with the responsibility of registering, monitoring, and supervising the activities of Designated Non-Financial Businesses and Professions (DNFBPs) in line with the Money Laundering (Prevention & Prohibition) Act, 2022, and Economic & Financial Crimes Commission (Anti-Money Laundering, Combating the Financing of Terrorism and Proliferation of Weapons of Mass Destruction for Designated Non-Financial Businesses and Professions and other Related Matters) Regulations, 2022.

The Designated Non-Financial Businesses & Professions are required under the above laws and Regulations to carry out the following:

To register with SCUML.

To make Currency Transaction Reports (CTRs) to SCUML of any single transaction, lodgment, or transfer of funds in excess of N5,000,000 or its equivalent in the case of an individual, and N10,000,000 in the case of a corporate body within 7 days from the date of transaction via SCUML online reporting platform (infoscuml@efcc.gov.ng) or on the SCUML website scuml.org.

To make Cash Based Transaction Reports (CBTRs) to SCUML of any single transaction in excess of $1,000 or it is equivalent within 7 days from the date of transaction via SCUML online reporting platform (infoscuml@efcc.gov.ng) or on the SCUML website scuml.org.

To make Suspicious Transaction Reports (STRs) to the Nigeria Financial Intelligence Unit (NFIU) via dnfbp.nfiu.gov.ng.

To comply with all relevant provisions of the Money Laundering (Prevention & Prohibition) Act, 2022.

Who are Designated Non-Financial Institutions (DNFIs) under the Act?

Section 30 of the MLA, 2022, defines DNFBPs as dealers in Jewelry, Cars and Luxury Goods, Precious Stones and Metals, Real Estate, Estate Developers, Estate Surveyors, and Valuers, Estate Agents, Chartered Accountants, Audit Firms, Tax Consultants, Clearing and Settlement Companies, Hotels, Casinos, Supermarkets, Dealers in Mechanized Farming Equipment and Machineries, Practitioners of Mechanized Farming or Such other businesses as the Federal Ministry of Trade and Investment or appropriate regulatory authorities may from time to time designate.

PROCEDURE AND EFFECT OF SCUML REGISTRATION

The registration for a SCUML Certificate can be completed on the online portal of The Special Control Unit against Money Laundering (SCUML) by doing the following:

Fill out the SCUML registration form online either by yourself or with the help of an experienced agent.

Submit the application alongside the required documents.

The documents required to be uploaded depend on the type of corporate entity and the applicable DNFI category.

The general documents required are: CAC incorporation documents. Evidence of tax registration; Tax Identification Number (TIN). Evidence of tax exemption (where applicable). Approvals/Authorization/licenses (where applicable). Professional certificate (where applicable). Any other document deemed necessary.

However, upon applying, a notification is sent on whether the application is approved or denied and it takes 14 to 21 days after submission of the application to complete the registration process and obtain the certificate.

The salient effect of obtaining the SCUML certificate issued by the EFCC is that it serves as proof that the organization’s bank account is not used for money laundering activities and certifies the organization as legitimate.

SUSPICIOUS TRANSACTIONS UNDER THE AML, 2022

The Special Control Unit against Money Laundering (SCUML) and Economic Financial Crimes Commission (EFCC) are the regulatory authorities for the implementation of the AML, 2022 concerning the DNFBP sector in Nigeria. However, suspicious transactions under the Act are considered an offense, unethical, and prohibited.

A transaction is tagged suspicious when a DNFBP suspects that it may involve: proceeds of any of the offenses specified in the Money Laundering (Prevention and Prohibition) Act, 2022, regardless of the value involved; or Appears to be made in circumstances of unusual or unjustified complexity, or Appears to have no economic justification or lawful objective; or A rise in suspicion that it may involve financing terrorism. STR has no threshold; it could be based on any amount. This report should be solely submitted to the Nigeria Financial Intelligence Unit (NFIU).

CONCLUSION

In conclusion, the Money Laundering (Prevention and Prohibition) Act, 2022, improves the current framework for tackling money laundering and related offences with the sole aim of “SCUML” being to contribute to the development of anti-money laundering efforts in Nigeria because it is not sufficient to control money laundering through financial institutions.

Lastly, it is essential to know that when a corporate entity is registered in Nigeria and falls under the category of DFNI, it ought to obtain a SCUML certificate as it is a mandatory obligation to fulfill, and the registration can be done on the SCUML website at no cost.

SNIPPET:

The salient effect of obtaining the SCUML certificate issued by the EFCC is that it serves as proof that the organization’s bank account is not used for money laundering activities and certifies the organization as legitimate.

• Atoyebi is the Managing Partner of O.M.Atoyebi, S.A.N & Partners (OMAPLEX Law Firm). He can be reached at atoyebi@omaplex.com.ng

CONTRIBUTOR: Chikezie Iwu

Chikezie is a member of the Dispute Resolution Team at OMAPLEX Law Firm. He can be reached at chikeze.iwu@omaplex.com.ng

• By Timilehin Babatope

The Centre for Law and Business (CLB), in collaboration with Babri Global Institution, has launched the Babrib Solicitor Qualification Examination (SQE) PREP to help prepare African lawyers for the United States Bar examination.

CLB stated this at a lecture in Lagos last Thursday, where it explained that Babri SQE PREP is an examination to prepare Africans who want to practice law overseas.

Participants, it said, would be assisted to get ready for the United States Bar Examination and enabled to work as competent attorneys across America.

Founded in 2004, the Centre for Law and Business (CLB) allows lawyers to pursue postgraduate and undergraduate degrees from the University of London without having to leave Nigeria.

According to CLB’s Managing Director and founder Mr. Dapo Oyewunmi, Babri Global and CLB “are reputable legal educators who have come together to form a partnership to further the legal profession, enhance the capability of lawyers, and give them benefits that will help them improve their work and extend their reach.”

He stated that with this qualification they could solve the needs of clients not only in Nigeria but in other parts of the world, especially given the fact that 60 per cent of the jurisdiction of the world runs the common law system.

Oyewunmi said: “SQE will allow lawyers in Nigeria, Ghana, Sierra Leone, The Gambia, etc. to prepare for the exams necessary to be admitted to the New York Bar, the California Bar, and UK Solicitor within their home countries, enabling them to earn dual or multiple professional qualifications.

“We have now extended our services to partner with Babri Global so that students can qualify to become solicitors in the UK without having to relocate, you stay here in Nigeria and get the qualification.

“The New York Bar, the California Bar, and other Bars of the United States of America can be studied for from here without having to relocate; so, that’s the relationship we have established with Babri Global.”

He asserted that having two or more professional certifications will place such attorneys on the global professional scene, open up opportunities abroad and enable them to satisfy the needs of clients from all over the world as well as those of multinational corporations, multilateral organisations, and others.

International Development Manager Monique Morrison, who spoke at the conference, said the organisation was focused on tech-driven preparation for lawyers with worldwide qualifications as well as preparing graduate and postgraduate students to sit the U.S. Bar examination. 

‘’With over 55 years of experience, the Barbri worldwide lineage is focused on preparing attorneys with global attitudes. Additionally, every year 1,500 international attorneys apply for dual certification with Barbri.

“Spanning over 1.3 million alumni around the world who are lawyers, judges, and law students, Babri has proven its worth and quality in delivering the best services to lawyers and designed to meet their needs.

“The 40-week-long flexible course Solicitor Qualification Examination With information on the exams’ format, 10-12 hours per week of online study are all meant to help graduate and postgraduate students be ready for the U.S. Bar examination.   

“The SQE prep preview also gives a person access to their personal study plan (PSP), which includes the ability to browse courses, features, sample questions, and to take the SQE 1 for free for one day,” Monique explained.  

Two traditional rulers, otherwise known as Baales, alongside four others, have been remanded, in Ibara Correctional Centre, Abeokuta.

Magistrate Morenikeji Osibajo of an Abeokuta Magistrate’s Court remanded the traditional rulers on Friday for encroaching on 24.253 hectares of land, located at Olorunsogo village, Oba Road, Abeokuta, belonging to the Ogun State Broadcasting Corporation (OGBC).  

The suspects are, Messers Olalekan Odemuyiwa, 58, Baale, Agejo village, Segun Konigbagbe, 50, Baale, Ake village, in Obafemi-Owode Local Government Area. 

Others are Wasiu Ogunsina, 51, Kabiru Olafenwa, Babatunde Odemuyiwa, 61 and Dare Awodele. 

Magistrate Osibajo ordered the suspects detained for 30 days at the Ibara Correctional Centre, pending the issuance of legal advice from the State Director of Public Prosecution (DPP) and filling of information paper of the high court.

The Police Prosecutor, Inspector, Adekanmi Adeusi, attached to the Task Force and Anti-Land Grabbing Unit, had told the court that the matter was reported through a petition by the management of Ogun State Broadcasting Corporation (OGBC) to the office of the Secretary to the State Government on June 19, 2023.

Inspector Adeusi stated that the land grabbers entered the land belonging to OGBC, sold and developed some parts, thereby preventing them from using the said land.

In view of this, management of the Corporation had called for steps to retrieve the land from the land grabbers and prevent the loss of the entire land to the illegal occupants.

Magistrate Osibajo has adjourned the case to August 15, 2023.

The Chief Judge of Lagos State, Justice Kazeem Alogba has   said the grant of amnesty to prison inmates is not done arbitrarily.

Justice Alogba said since the exercise is a prerequisite of the law, amnesty is only granted those who meet the conditions set under the law.

He spoke last Thursday while releasing 30 inmates from the custody of the Correction Centres in Lagos and Ogun states out of the 40 recommended for the exercise.

Those granted freedom included four young boys from Adigbe Forster Home, Ogun State who were minors when they committed the offence and were arrested.

Some of them had been in prison custody since 2013 before they regained freedom.

The programme held under the Decongestion of the Custodial Centres Exercise 2023 at Justice Samuel Ilori Court House, Ogba.

Justice Alogba granted freed them pursuant to the powers conferred on him under Section 1(1) of the Criminal Justice Release from Custody Special Provision Act 24 and provisions of the Administration of Criminal Justice Law 2019 of Lagos State. He admonished them to go and sin no more.

Justice Alogba emphasised that he did not release the inmates because he had just come back from the holy pilgrimage.

“I am not Father Christmas. The exercise we are witnessing is a self-cleansing exercise as provided for in the law”, he said.

The CJ explained that the exercise was carried out to ensure that the inmates did not stay in prison longer than they would have served if convicted.

“It is for this reason and so many other reasons that the exercise is put up and this is the reason why the exercise doesn’t hold too frequently”, he said.

Justice Alogba commended the Justice Adenike Coker-led committee that looked into the case of those released for doing a thorough job.

“The committee has diligently gone through due process in carrying out the exercise. I would still insist on due process and diligence in all that we do.

“Since it is a matter required by law, we must be diligent in carrying out the exercise. The members of the committee have done excellently well”, he said.

Justice Alogba described the case of the freed inmates as a systemic failure.

“Failure not because the courts are not sitting but failure as a result of hitches in the course of prosecuting offenders.”

The Controller of the Nigeria Correctional Service (NCS), Ben Freedman, in his address stated that about 9,000 inmates are in three Correctional Centres in the state.

Freedman, who was represented by the Deputy Controller, Nigeria Correctional Services (NCS), Lagos Command, (DCC) Comfort Obiosio, urged the CJ to use his good offices to see that privileges were given to some remorseful inmates in order to decongest the custodial centres.

“We have almost 9,000 locked up in Lagos and we hope the Chief Judge uses his good offices to free those qualified and decongest the facilities,” Obiosio said.

The Lagos State Commissioner for Police, (CP) Idowu Owohunwa, represented by the Deputy Commissioner of Police (DCP) Waheed Ayilara, said the Police had a partner in the justice system and would continue to ensure due process in carryout their services.

He urged the Chief Judge to make  a continuous one to reduce the number of inmates in the prison, noting that the maximum capacity should be about 1,500.

“We can not continue to keep the 9,000 inmates as it is highly unbearable.

“Those who are about to get freedom must have learned one or two lessons. Being in correctional centres does not mean you can not be re-integrated to the society.

“The police will continue to be diligent in their investigation in order to help with decongestion,” Ayilara assured.

• SANs, others bid farewell to SCGN board member

Effective leadership and ethical practices are key to the success of any organisation, a Fellow of the Society for Corporate Governance Nigeria (SCGN), Mr. Isaac Orolugbagbe, has said.

He spoke at a special lecture and tribute event to honour two board members, Prof. Chris Ogbechie and Prof. Juan Elegido, who are retiring from their directorship in the society.

The event celebrated their illustrious contributions and recognised their impact on strategy, leadership, ethics, and corporate governance in Nigeria and across the African continent.

The lecture entitled: “Leadership and Ethics: Ethos of Corporate Governance,” delved deeply into the intricate threads that connect effective leadership and ethical practices to the success of organisations.

Orolugbagbe also highlighted the contributions of Elegido and  Ogbechie to corporate governance in Nigeria.

Chairman, MTN Nigeria Plc, Dr. Ernest Ndukwe emphasised that leadership and ethics are integral components of the ethos of corporate governance.

He argued that by embracing ethical leadership practices, organisations can create a positive and sustainable corporate culture that benefits all stakeholders and contributes to long-term success.

Prof Elegido, the former Vice-Chancellor of Pan-Atlantic University and a Business Ethics Professor at the Lagos Business School (LBS), has made significant contributions to academia and leadership in Africa.

As a pivotal figure in establishing Lagos Business School in 1991 and serving as its Dean from 2005 to 2009, he left an indelible mark on the educational landscape.

Elegido is recognised as one of the top 10 per cent highly cited scholars worldwide in the Social Science Research Network.

Ogbechie, the Dean of Lagos Business School, Pan-Atlantic University, is a renowned strategic management expert with a deep understanding of marketing, strategy, and corporate governance.

With a distinguished academic background, including a PhD in Business Administration, he has made significant contributions to academia and industry.

Ogbechie’s research interests lie in strategy in turbulent environments, strategic leadership, board effectiveness, and corporate sustainability.

He teaches these courses at the LBS and Strathmore Business School in Nairobi.

President of SCGN, Mohammad Ahmad, praised the duo for their exceptional commitment to the ethos of leadership, ethics, and governance.

He noted that their presence in the society had been a catalyst in driving its objectives and achieving its mission.

He explained that SCGN, a not-for-profit organisation established in 2005, has been at the forefront of developing and promoting corporate governance best practices in Nigeria.

According to him, through advocacy, advisory services, training programs, research, and a vibrant member network, the SCGN continues to play a pivotal role in shaping the corporate governance landscape and raising awareness of its importance in Nigeria and across Africa.

Managing Director/Chief Executive Officer of SCGN, Chioma Mordi, expressed gratitude to  attendees for attending the event.

At the event were Odein Ajumogobia (SAN), Elder Felix Ohiewerei, Mr Oscar Onyema, Ms Tinuade Awe, Chief Olusegun Osunkeye, Prof Enase Okonedo, Prof Fabian Ajogwu (SAN), Mr Tunji Oyebanji, Mrs Clare Omatseye, Mrs Nkemdilim Uwaje Begho, Prof Albert Alos, Prof. Olayinka David-West, Mr. Ibrahim Dikko, among others.

Drafting judges/justices from their congested dockets to sit on pre-election and election petition tribunals often worsen the Judiciary’s reputation, in the public’s eye, for justice delays. Should ‘Mi Lords’ – as suggested by Aare Afe Babalola (SAN) – relinquish that role for their predecessors on the Bench and other senior lawyers? Will that solve or create new problems of its own? ROBERT EGBE examines the pros and cons.

udges and lawyers know the Latin maxim Iustitiam morari iniustitia est very well. It is a phrase, which English interpretation – Justice delayed is justice  denied – rolls off their tongues at the drop of a hat:

But, notwithstanding their familiarity with the saying, the slow pace of justice dispensation has, for decades, remained a major challenge for the judiciary, despite stakeholders’ efforts to curb it.

Last year, the Chief Judge of the Federal High Court, Justice John Tsoho, decried the backlog of cases pending at the Federal High Courts.

Tsoho, who spoke during a special court session to mark the 2022/2023 legal year, noted that some judges had over 1,000 cases in their dockets.

He revealed further that 135,592 cases were pending before the Federal High Courts at the end of the last legal year. The cases comprised 41,788 civil cases, 31,832 criminal cases; 39,799 motions and 22,173 fundamental rights enforcement applications. 

Similarly, Chief Justice of Nigeria (CJN), Justice Olukayode Ariwoola, stated last November 28, at the investiture of 62 new Senior Advocates of Nigeria (SAN) in Abuja, that the Supreme Court was bogged down with 6,884 delayed cases.

The consequences of a delayed justice system are grave. It causes, among others, litigants to resort to self-help, a situation no country can afford. 

Elections and justice delay

The situation is made even worse every four years following the end of a new election cycle. 

Last November 7, Justice Ariwoola swore in 307 judicial officers to preside over petitions which arose from the 2023 general election.

On May 25, he swore in an additional 39 judges increasing the number of the various tribunal members currently hearing election petitions across the country to 346.

For years, many lawyers have expressed discomfort about this temporary withdrawal of such a large number of judicial officers from the justice system, saying it occasions delays in justice dispensation. 

Babalola’s solution

One of those worried by the practice is a legal luminary and founder of Afe Babalola University, Ado-Ekiti (ABUAD), Aare Afe Babalola (SAN).

In his view, sitting judges should not preside over election petition tribunals.

Babalola, who spoke on July 10, at an event in Ado-Ekiti to mark his 60th anniversary at the Bar, repeated his longstanding call for a judicial overhaul to end the practice.

A judicial overhaul, he reasoned, was indispensable.

He said: “Our judiciary today needs a total overhaul and you cannot do it without a new constitution. I have about three cases in respect of matters arising from the university.

“For the past four years, these cases have been on. We have some judges who won’t be able to sit for many months because they are handling election petitions.

“Election petitions should not be handled by sitting judges, they should be decided only by the committee set up consisting of senior advocates and retired judges. In that case, regular courts would not close down.”

The senior lawyer has made that suggestion before. He set out his ideas even more robustly in a June 30 article entitled “Challenges in the administration of justice: Serving judges should be excluded from election petitions”.

Among his reasons was the problem of the perception of politicians of the integrity of some judges handling petitions.

Babalola said: “There have been accusations and counter-accusations from politicians regarding the integrity of some tribunals… Cases have been reported in which parties to election petitions already submitted to the court for adjudication and in some cases even already adjourned for judgment, declared openly that the outcome or judgment of the petition would be favourable to them.”

According to him, the judgment, when it was eventually delivered, sometimes turn out as predicted.

He reasoned that this called for a neutral party to handle election petitions.

Babalola went on: “Having regard to the numerous, persistent, and disturbing accusations made against election tribunal judges by desperate politicians, the coincidence or otherwise of judgments which were predicted by politicians who had made victory preparation in advance of the judgments, and the tempting pressure in a poor economy, is it proper for serving judges to handle political cases? 

“In any event whether the “prediction” of politicians regarding the outcome of yet-to-be-delivered judgments pans out or not, the integrity of the judiciary is always the ultimate loser. This is so for if the “prediction” is found to be correct, the losing side will forever point to the fact that the judgment had already been known well in advance of the delivery of same. If on the other hand the “prediction” is found to be false, then supporters of the losing side will also forever allege that some underhand dealings were responsible for the change in the judgment from what they had been told or assured to expect.”

He argued that this “heightened level of attention and criticism” was bound to affect the psyche of some judges and rub off on their ability to discharge their duty. 

“It exposes them in several instances to a situation in which their every conduct and pronouncement is expected to measure up not to the dictates of the law but to the high and often misguided and misplaced expectation of the public which in most cases is totally ignorant of the position of the law.

“Judges being human beings and not infallible may sometimes unwittingly yield to some of these pressures and let themselves be influenced by totally irrelevant factors.

“Furthermore, serving judges are of course very much interested in career advancement,” Aare Babalola added.

Another reason for their exclusion, in his view, is that serving judges are very much interested in career advancement and may be swayed by politicians who come before the tribunals either as petitioners or respondents and may ultimately be able to decide or influence the judges’ professional fortunes. 

He said: “Another very important consideration for the exclusion of sitting judges on election petitions is the effect which the length of such sittings will have on existing cases before those judges prior to their appointment. One of the most known challenges facing the administration of justice is the issue of delay in the court process. William E. Gladstone popularly noted that “justice delayed is justice denied.”

Retired judges, he suggested, will do the job better.

Babalola added: “In conclusion, I advocate the appointment of retired judges to serve on election petition tribunals. In addition, there is no reason why election petitions cannot be referred to arbitration rather than tribunals. This, to my mind, will ensure that petitions are determined not only with dispatch but also in an atmosphere of fair play. The winner takes all attitude which pervades every sphere of the electoral process, from campaigns to resolution of electoral disputes will be totally absent if a resort is had to arbitration.”

Support from the Bench

Justice Taiwo O. Taiwo, who retired from the Federal High Court Bench last July 29, agreed.

Taiwo told The Nation that he found the practice of using so many sitting judges for election petitions baffling.

He spoke last Thursday at the 2023 Annual Lecture of the National Association of Judicial Correspondents (NAJUC) Lagos branch, held at the Muson Centre, Lagos.

Justice Taiwo said: “When sages like that talk, they must have done their homework very thoroughly. I cannot but support him, because when you pull about 257 judges out of the system to attend to election matters who are now left to sit on the cases of the common men, or the other cases that are not election cases? Why must election petition cases be so important that we would withdraw so many serving judges from the system? 

“I agree with what he (Chief Babalola) said.”

A former Chief Justice of Nigeria (CJN), Justice Mohammed Uwais, was the first person to propose the engagement of retired justices to handle political cases, particularly election petition matters.

He said this would stem the trend of scandals bordering on corruption being linked to the judiciary, especially the judges, particularly in cases involving politicians who lost their cases in court.

Similarly, the President of the National Industrial Court of Nigeria (NICN), Justice Benedict Kanyip, while in Lagos as a judge in 2013, proposed a system barring serving judicial officers from entertaining election-related cases in the country. He suggested the use of retired judges for political cases.

He reasoned that taking away such responsibility from serving judges would not only reduce the courts’ dockets but also insulate serving judges and safeguard their integrity.

Why Babalola’s solution may not be practicable, say SANs

Dr. Babatunde Ajibade, SAN, acknowledged the problem but told The Nation that Babalola’s solution may not be practicable.

Ajibade said: “There is no yes or no answer to the question in my view. Aare Afe Babalola has identified a problem that is generally acknowledged, for which a solution needs to be found. 

“However, I am not sure the solution he has proposed is practicable. It is not clear to me what criterion will be used to select the senior advocates he proposes should handle the petitions along with retired judges or how this will fit into our current constitutional framework. 

“A lasting solution is definitely required, and I think it might be worth revisiting the proposal for the creation of a constitutional court with its own judges and a very limited and specialised jurisdiction, including election petitions.

Another senior lawyer who declined to be named also noted the negative consequences of the current practice.

Nevertheless, he identified the declining age and mental capacity of some retired judges as a potential problem.

He said: “Our election petition jurisprudence is still growing and will continue to grow. 

“There is no doubt about the fact that a lot of cases including appeals in the Court of Appeal and the Supreme Court suffer serious delays due to pre-election and election matters including appeals which are always given priority over other matters including appeals. 

“The implication of such delays is a denial of justice because justice delayed is justice denied. So, the suggestion of the learned sage Aare Afe Babalola, SAN, that sitting judges and justices should not hear and determine election petitions but a committee of Senior Advocates of Nigeria and retired judges and justices should do so, is a possible solution to this major problem of delayed and denied justice. Such a committee will relieve the judges and justices of the need to leave or adjourn the matters before them to attend to election matters. I am of the view that his opinion and any other opinion on how to overcome the problem are worth considering. 

“However, his view should put into consideration that with the retirement age of judges having been increased to 70 years, there may not be many of them strong enough and available to meet the challenges and timelines in election petitions and such committees that will be needed throughout the Federation. Also, the decisions of such committees should not be final. That way, whatever errors they may make can be corrected by an appellate court to be created for that purpose. These will require the amendment of the 1999 Constitution and relevant laws. I believe the conversation should continue until we find a good and lasting legal and constitutional solution to the problem.”

Also disagreeing, with Babalola, Prof. Akinseye George, SAN, said: “Honestly, I do not think we should use retired judges to handle election petition matters for three reasons. 

“One, retired judges are no longer legally contracted. They have concluded their tenure. That tenure is what gives them some form of extra allegiance to the state. The fear of being dismissed for misbehaviour is no longer there. And it is very important in a matter of election petitions.

“Two, most of the retired judges are old. None of them is less than 65 years. Most of them are 65 and above because, at the high court, they retire compulsorily at 65. At the Appeal and Supreme Court, they retire compulsorily at 70. So, already, they are no longer dynamic. The election matters are very tasking, loaded and time-bound. It is energy-sapping.

“Thirdly, the fact that someone has retired makes them more susceptible to undue influence by politicians, especially when most of them retired into the kind of life that they would not want for themselves. That is why we are advocating for improvement in the welfare of judges, to strengthen the working conditions of serving judges. When you appoint somebody to an election petition tribunal, you need to monitor such person very closely, his lifestyle and the rest. Let us know how they live.

“To help those who are doing the job, I think we should digitalise the tribunal so that the work can become faster using technology. You can watch the proceedings digitally because it is recorded.”

In Nigeria, tenant rights refer to the legal protections granted to individuals who rent housing. These rights ensure that tenants are treated fairly by their landlords and have safe living conditions. These rights aim to create a balance of power between landlords and tenants, ensuring that people have a secure and comfortable place to live. These rights include:

1. Right to enjoy the property: As a tenant, you have the right to enjoy the property you’re renting and your privacy is protected. Section 37 of the 1999 Nigeria Constitution states, “The privacy of citizens, their homes, correspondence, telephone conversations, and telegraphic communications is hereby guaranteed and protected.”

2. Right to basic services and utilities: You have the right to basic services and utilities in the rented property. Section 16 of the 1999 Nigeria Constitution guarantees that the state shall “provide adequate facilities for all citizens.” This includes access to essential services like water, electricity, and proper sanitation.

3. Limitations on arbitrary rent increases: Your landlord cannot increase the rent arbitrarily. Section 17 of the 1999 Nigeria Constitution establishes that every citizen is entitled to a fair and just rent. This means that any rent increase should be reasonable and cannot be imposed at any time during the tenancy without proper notice.

4. Responsibility as a tenant: It is important to be a responsible tenant and respect the property rules set by your landlord. This includes taking care of the rented property, paying rent on time, and not engaging in any illegal activities within the premises. Failure to abide by these rules may result in eviction. Section 43 of the 1999 Nigeria Constitution states, “No movable or immovable property or any interest in such property shall be compulsorily acquired except in the manner and for the purposes prescribed by a law that, among other things, provides for prompt payment of compensation.”

5. Security deposit protection: As a tenant, you have the right to have your security deposit protected. Section 44 of the 1999 Nigeria Constitution ensures that every Nigerian is entitled to the right to own, enjoy, and dispose of his or her property without interference. This means that your security deposit should be held in trust by the landlord or a designated third party and returned to you at the end of the tenancy, provided there are no damages or outstanding fees owed.

6. Right to repairs and maintenance: You have the right to prompt repairs and maintenance of the rented property. It is the landlord’s responsibility to ensure that the property is kept in a habitable condition, free from any major defects or hazards. Section 34 of the 1999 Nigeria Constitution emphasizes the right to dignity of the human person, which includes living in a safe and sanitary environment. If there are any necessary repairs or maintenance issues, it is crucial to notify your landlord in writing so that they can address the problem in a timely manner.

7. Lease agreement transparency: As a tenant, you have the right to a clear and transparent lease agreement. A lease agreement should outline the terms and conditions of the tenancy, including the duration, rent amount, payment terms, and any additional rules or provisions. It should also clearly state the rights and responsibilities of both the landlord and the tenant.Section 15(5)(d) states that the Nigerian state shall abolish all corrupt practices and abuse of power. Lease agreement transparency can fall under the purview of addressing corrupt practices. Also, Section 16(2)(c) sets out the fundamental objectives of the Nigerian state, which include promoting transparency and accountability in public life. Lease agreements involving public or government-owned properties should adhere to these objectives. It is important to review the lease agreement carefully before signing and seek legal advice if needed.

By adhering to these rights and responsibilities, landlords and tenants can have a mutually respectful and harmonious living arrangement.

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