Category: Law

By Adebisi Onanuga

The Ogun State Judiciary has inaugurated a staff development study centre where judicial officers would be trained on different courses that would broaden and widen their knowledge of their work.

Its Chief Judge, Justice Mosunmola Dipeolu, unveiled the centre at the Judiciary Complex, Kobape, Abeokuta, the state capital.

She stated that it has become imperative to widen the knowledge of its staff, to further enhance the administration of Justice and to avert unnecessary delay in deciding cases of criminals and those standing trials in the state.

Justice Dipeolu stated that this would avail the staff the opportunity to be trained on courses such as computer education, court management study, and purchasing projects management among others.

She disclosed that education board of directors had been constituted to oversee the study centre, which would be awarding certificates relating to law, adding that two sets had already been trained and awarded their certificates from the centre.

She said the state judiciary is hopeful of autonomy, saying that judiciary is expecting government to sign the autonomous bill into law to enhance dispensation of justice in the state.

“Indeed, the study centre was introduced on June 7, 2021 to further engender the role of judiciary and see to the systematic growth of all staff, this will also enhance capacity building of judicial system in the state, especially in the administration of justice and discharging of our duties accordingly”.

“We have carefully chosen the education board members with a chairman who can motivate employees output, hoping that it would not end up during this present administration”, Justice Dipeolu said.

Chairman of members of education board, Justice Olumuyiwa Olusanya said that the centre would avail the members of judiciary sector to be acquainted with administration of justice, saying that they would be taught about law and other related issues.

He urged the staff to be patient and ready to learn about law and justice and take the study centre with seriousness, saying that it would accord them the opportunity to know about the dispensation of justice.

“In fact, most of the members of staff are not lawyers, so, it will be very difficult to assign some assignments to them, now that the study centre had been inaugurated,  as they will learn another trend of work and give them the opportunity to accordingly”, Justice Olusanya said

Other members of the board include; Justice Olugboyega Ogunfowora, Justice Sonia Akinbiyi, Prof. Oluyemisi Bamgbose, SAN, and Mrs Olukemi Adebo.

 

The Lagos State Judiciary last Wednesday held a Valedictory Court Session in honour of the late Mikhail Bashua SAN, who died on August 19, 2021 ADEBISI ONANUGA reports.

Judges, lawyers and other stakeholders in the justice delivery sector gathered in Lagos last Wednesday to honour a legal luminary of repute, consummate bar man and a respected son of the soil, the late (Senior Advocate of Nigeria) Mikhail Adisa Bashua, who died on August 19, 2021. The occasion was a valedictory court session held in his honour by the Lagos State Judiciary at the High Court of Lagos State, Ikeja Complex.

‘A simple man’

Chief Judge, Justice Kazeem Alogba described the deceased as a lawyer who contributed immensely to the legal profession and made giant strides in legal practice.

“His contribution to the legal profession cannot be swept under the carpet. He contributed immensely to the development of law and law practice. He was a legal practitioner exemplar,” he said.

The Chief Judge, who was represented by the Admin Judge, Ikeja, Justice Olutoyin Oyekan-Abdullai, said many would attest to the fact that the late Bashua, during his life time, was “a man of simplicity, always smiling, hardly or never seen to be angry or upset with anyone but went about life, making achievements in every corner he turned.”

‘Impressive law practice’

According to Justice Alogba, besides being an erudite and patriotic legal practitioner, Bashua was also a true bar man in and outside the legal profession”, who mentored many legal practitioners “including those who are not his children.”

Bashua’s immense contributions to the development of law in the country, he added,  and his giant strides can be attested to by many legal practitioners and non-legal practitioners alike, stressing that a good number of the cases he handled in his life time became classical cases for resolving disputes.

To buttress his assertion, he cited the case of Mohammed Vs Olawunmi (1990) 2 NWLR (PT. 133) R. 458 SC .

“The principle of law in that case is when a decision of court is regarded as final or interlocutory decision and whether a party appealing to an appellate Court requires leave of court before appealing against an interlocutory decision of court,” the CJ explained.

He said the case became a locus classicus on those two issues of the law, adding that the Supreme Court agreed with Bashua in that case that the leave of court was necessary.

Enviable political career

Bashua’s political life also got a notable mention. He was, the CJ said, an accomplished politician and political leader in Lagos where he practiced his legal profession for 52 years until his death.

He pointed out that as a politician, Bashua had a beautiful political career and contributed to political development, not just in Lagos but also that of the country as a member of the Federal House of Representatives in the first Republic on the ticket of the defunct Action Group, representing Olowogbowo, Idumagbo, Isale Eko and part of Ebute-Meta federal constituency in Lagos State. Before this, he was elected a member of the Lagos Town Council as a Councillor.

He said his tenure as a Councillor was prodigious in output and that it was to his credit that as chairman Tenders Board of the Lagos City council, the preliminaries which led to the eventual construction of the Lagos City hall commenced, at a time when many said it was not possible to build such an edifice.

Appointments, National Honour

Bashua was appointed a member of the Local Government Caretaker/Management Committee in 1972 during the tenure of Brigadier Mobolaji Johnson as military administrator of Lagos State in recognition of his services to the state and the nation.

In 1975, he was appointed the pioneer Chairman of the newly created Public Complaints Commission, due to his expertise in arbitration and litigation, by the then Head of State, General Muritala Muhammed, a position he resigned from in 1975 due to ideological differences with the then Head of State, General Olusegun Obasanjo.

Under the administration of Alhaji Lateef Jakande, the late Alhaji Bashua was appointed the pioneer Chairman of the Lagos State Electoral Commission in recognition of his honesty and competence at organizing elections.

He was conferred with the national honour, Commander of the Order of the Niger (CON) by the late President Umaru Yar’Adua in 2008.

An accomplished advocate

The Body of Senior Advocates of Nigeria (BOSAN) represented by Oluseyi Sowemimo, SAN, described the deceased as an accomplished advocate.

Sowemimo said Bashua lived a remarkable life, noting that many of the cases he handled in courts attested to his achievements in law because they became locus classicus cases.

According to him, Bashua’s death marked yet another depletion of those called to the English Bar in the 1960s who helped shaped legal jurisprudence in Nigeria. The deceased was leaving behind valuable legal service, Sowemimo said, adding that they would mourn his loss and fellowship at the Inner Bar.

Chairman, Nigerian Bar Association (NBA) Lagos Branch, Ikechukwu Uwanna, moved a motion in honour of the deceased, adding that his loss was “that of a valued adviser; that a lot needed to be learnt from his wealth of experience; and to commend his soul to Almighty Allah.”

Chairman, NBA Epe branch, Ademola Koko adopted Uwanna’s motion and applications adding that the late Bashua was not just a father and a lawyer of repute but also a community man who contributed immensely to the administrative and political development of area.

He said the fact that he was conferred with award of the Commander of the Order of the Niger (CON) by late President Umaru Yar’Adua and prestigious SAN attested to his enviable achievements in politics, governance and legal profession,

Chairman NBA Ikeja, Bartholomew Agbogodo said the deceased lived a fulfilled life. He reasoned that the time of death is better than the time of life because it gives an opportunity to ex-ray not just achievement but people he left behind.

“Looking at his resume, it was very rich especially in legal advocacy. Aside being a great advocate, he was a great family man who paid great attention to the development of his family. Looking at it fairly, he has established roots in his family, there are SANs, judges, legal practitioners of note and set legacy and example for politicians to step aside when your beliefs conflict with theirs.”

Toun Adekoya, who represented NBA Ikorodu Chairman, described the deceased as an upstanding gentleman who stood tall among his pairs.

“An erudite legal practitioner has gone home to meet his creator. His sagacity at the bar would be missed. He lived an impactful life and would be greatly missed”, she stated.

Chairman Badagry branch of NBA, Muftah Salau aligned with the submissions of his colleagues on the deceased, adding that Bashua was an upright, patriotic and an erudite legal practitioner of repute.

“In politics, profession and family life, he stood tall among his pairs. NBA national, NBA Lagos and Lagos state would miss him; fellow SANs would also miss his companionship and contributions”, he said.

Olufemi Bashua, on behalf of his family, expressed gratitude to the Lagos Judiciary for the honour done their late father. He said the impressive attendance at the event attested that the deceased was worthy of celebration.

Abiodun Olatunji (SAN), a first-class law graduate of the University of Ibadan, is a Partner at Abdullahi Ibrahim & Co. He holds a Masters of Law from the University of Lagos (UNILAG). In this interview with Deputy News Editor JOSEPH JIBUEZE, the banking and commercial law expert speaks on the Petroleum Industry Act, why he thinks capital punishment has become outdated, electronic transmission of poll result and the constitutionality of parading of suspects before the media.

The National Assembly is set to harmonise the amendments to the Electoral Act 2010. What are your thoughts on the Senate’s position on electronic transmission of election results?

It is very sad. The Senate’s decision drew this nation backward by half a century. The politicians who voted against electronic transmission of results did so in their own selfish interest. They didn’t do it in the national interest. The Chairman of the Senate Committee on INEC whose committee made the recommendation voted against it when the bill was being considered clause by clause on the floor of the Senate. It was a shame. The partisan outcome of the vote shows that the ruling party feels more comfortable with maintaining the status quo because it believes the status quo guarantees its return to power in 2023. Electronic transmission of results will not only enhance transparency and acceptability of the results, but it will also help reduce the volume of litigations that often follow the declaration of results and return of elected contestants. In fact, electronic transmission of results has the potential of eliminating post-election litigations in this country. The reasons given by the Senate for rejecting the electronic transmission of results are untenable.

Why do you say so?

The electoral umpire had openly declared that it has the capacity, the facility, and the assurances of various networks providers that they have enough national coverage to ensure seamless transmission of election results. What else! We all witnessed how INEC electronically transmitted results in the Edo and Ondo states governorship elections and the way the public acknowledged the outcome of the elections. It is difficult to accept that the Senate of the Federal Republic of Nigeria in the year 2021 will vote to annul electronic transmission of results when less developed African countries are moving away from manual voting to electronic voting.

What do you make of some senators’ concerns about poor network coverage in remote areas?

In 2018, the local government election in Kaduna State was conducted electronically; the same method was adopted in 2021. Voting and transmission of results were by electronic means. Technology has been part of our elections since the introduction of card readers. These card readers are deployed across the 36 states of the federation and the FCT. There were initial hiccups but improvements have been made. That is what we need to do with the electronic transmission of results. The Nigerian Bar Association (NBA) had for some years now been electing its national officers through electronic voting. The NBA has branches in all the six geo-political zones of the country. The voting is done electronically and the results are transmitted electronically in real-time. Why can’t we do the same as a nation more so when INEC had said it is ready to do so? Elections are all about the integrity of the process. It is what confers legitimacy on the political gladiators that emerge from the process. When citizens recognise that the process through which those who preside over their affairs emerge is free, fair, credible, and transparent, they will freely support and key into the policies and programmes of the government. Where, on the other hand, they perceive that the process had been skewed and the system manipulated from the onset to produce a predetermined outcome, their loyalty and patriotism cannot be guaranteed.

What are your expectations ahead of the harmonisation of the Bill?

We must work to avoid that feeling developing in the people as we move towards the 2023 general elections. The version of the Amendment Bill passed by the Senate apart from being unconstitutional having regard to the clear provisions of paragraph 15(a) of Part 1 of the Third Schedule to the Constitution which vests exclusive power to organise, undertake and supervise all elections to the offices of the President, Vice President, the Governor and Deputy Governor of a state, membership of the Senate, House of Representatives and the House of Assembly of each state of the federation in the electoral commission, it also clearly calls into question, the independence of an electoral umpire that will have to await the permission and approval of a legislative arm that has never hidden its partisan divide and whose leadership has always shown its readiness to dance to the whims and caprices of the executive. It is even worse when such legislative approval will be based on an opinion to be rendered by an executive body. The President had repeatedly said one of the legacies he hoped to bequeath to this country is an electoral process that is transparent, free, fair, just, and credible. The President can assure Nigerians that he is determined to achieve this laudable objective by withholding his assent to the Electoral Act Amendment Bill 2021 as currently passed by the Senate arm of the National Assembly if for any reason the Conference of the House of Representatives Committee on Electoral Matters and that of the Senate adopts the version of the Bill passed by the Senate.

After several years of delay, the President has signed the Petroleum Industry Bill (PIB). What do you make of the criticism that trailed it?

The Petroleum Industry Act provides for the legal, governance, regulatory and fiscal framework for the Nigerian petroleum industry, the development of host communities, and related matters. There have been mixed reactions to the law as assented to by Mr. President. Before then, the governors of the 16 Southern states had come out to reject the bill as passed by the National Assembly particularly objecting to the provision of three per cent of the actual annual operating expenditure of the Upstream Petroleum Operators as their annual contribution to the development of the host communities while in sharp contrast providing for the allocation of 30 per cent of the profit made by the Nigerian National Petroleum Company Ltd. from oil and gas as fund for searching for possible crude deposit in frontier basins i.e., Chad basin, the Sokoto basin, Benue trough and the Bida basins. The 16 Southern governors also took objection to the ownership structure of the NNPC Limited created under Section 53 (1) of the Act and the ownership of the company being vested in the Federal Ministry of Finance and the Ministry of Petroleum.

Do you agree with the governors’ suggestion on NNPC Ltd’s ownership?

The governors had rightly in my view suggested that the ownership of the NNPC Limited be held in trust by the Nigeria Sovereign Investment Authority (NSIA) since all the three tiers of government have stakes in it. The Southern Governors Forum represents half of the country; their voice matters. Also, their reservations about some knotty areas and controversial provisions in the bill as passed by the National Assembly before the President assented to it should have made the President have a rethink on signing the bill into law. As you are well aware, when the executive bill was first sent to the National Assembly for legislative work, the Executive had initially proposed five per cent for the host communities and 10 per cent for frontier basins. It was only after the GMD of NNPC Mele Kyari and the Minister of State for Petroleum Timipre Sylva had an executive session with the senators that the proposed five per cent was reduced to three per cent. The reason given by the GMD of NNPC for recommending the reduction was that five per cent is a whole lot of money when computed. Senator Ahmed Baba Kaita, who represents Katsina North, was also reported to have said that the three per cent for the host communities was ideal since the Federal Government will be responsible for the security of oil firms equipment but if it has to be pegged at five per cent, the host communities should be responsible for the security of the oil firms’ equipment and productions. That of course generated a lot of controversy in the Senate but eventually the Senate adopted the three per cent and also went further to increase the 10 per cent recommended for the frontier exploration to 30 per cent. Recall that when the administration of Late Umaru Yar’adua first presented the PIB to the National Assembly in 2008 the administration recommended 10 per cent for the host communities. Although the House of Representatives of the Sixth National Assembly passed the bill, it was however not passed by the Senate before the expiration of the life span of that Assembly. The controversy and the disappointments notwithstanding, I think the Petroleum Industry Act as it is now is better than not having it at all. The Act can be improved upon through regular amendments as we move to the next phase which is its implementation.

The Minister of Interior, Rauf Aregbesola, has urged governors to sign the death warrants of convicts on death row to help decongest the correctional centres. Is the death penalty still fashionable?

The statement credited to the Honourable minister has only served to further lend credence to the position which I subscribed to, that the imposition of the death penalty has never at any point in time in history solved the problems of criminal infractions and has not for the foreseeable future shown the possibility of solving the problems. The death penalty is outdated. It should be removed from our statute books. It is obvious that the governors who have the constitutional duty to sign the death warrants of convicts who have exhausted all the rights of appeal available to them under the constitution are scared to death to perform this constitutional duty. The Honourable Minister for the Interior was the Governor of Osun State for eight years and throughout his tenure, he did not sign the death warrant of any convict even though there were several of them.

How then can the correctional centres be decongested? 

The pathway to decongesting the prisons does not lie solely in taking lives. There are other available constitutional remedies that the President and governors can have recourse to. Sections 175 and 212 of the Constitution give the President and the governors the power to grant convicted criminals pardon, either free or subject to conditions, respite either for an indefinite or a specified period of time of the execution of any punishment imposed on the convicted criminal, substitute a less severe form of punishment imposed on the convicted criminal. The President and the governors should exercise these their constitutional powers to commute the death sentence imposed on those on death row to life imprisonment. Such commutation will decongest the cells of those who have been sentenced to death. Importantly, the correctional facilities are overwhelmed by the population of those awaiting trials. This category of inmates accounts for over 70 per cent of the population of inmates in Nigeria. The solution, therefore, lies in how government at different levels can fasttrack the trial of those on awaiting trial list, or release those who have been in custody for a period exceeding the term the law provides if they had been tried and convicted. The Chief Judge of the High Court of the various states should also scale up their visits to the various correctional facilities for the purpose of decongesting the facilities.

Is it constitutional to parade criminal suspects before the media?

The Constitution is very clear: every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty, according to Section 36(5). Also, Section 34(1) (a) provides clearly that every individual is entitled to respect for the dignity of his person and accordingly no person shall be subjected to torture or to inhuman or degrading treatment. Section 8 of the Administration of Criminal Justice Act 2015 also provides that a suspect shall be accorded humane treatment having regard to his right to the dignity of his person and not be subjected to any form of torture, cruel, inhuman, or degrading treatment. The question for me is: can the media parade of suspects be anything other than mental torture, cruel, inhuman, and degrading treatment? Certainly not. When suspects are paraded before the media even when they have not been formally charged with any criminal infraction, the impression created in the public space is that the suspects are guilty of the crime alleged. This is contrary to the presumption of innocence guaranteed to every person charged with a criminal offence. The damage done to the psyche of the suspects when they are paraded before the media is most of the time irreparable. The police should devote more of their efforts to investigations, gathering of unassailable evidence, and then proceed to assemble a team of prosecutors that will prosecute the suspects in court upon charges disclosed by the evidence gathered and stop dissipating their energies on media trial at the end of which no conviction is secured in court.

 

By Adebisi Onanuga

The Ogun State Chief Judge, Justice Mosunmola Dipeolu has emphasised the need for the executive and legislative, to give priority attention to the judicial system by ensuring autonomy of the sector.

Justice Dipeolu stated this at the 2021 Ogun State Judges’ Conference with the theme “The Challenges of the Judiciary in contemporary Nigeria”, held at Judiciary Complex, Kobape, Abeokuta, the state capital.

She said that judiciary is the guardian and protector of fundamental human rights as well as the arbiter of disputes among all levels of government, which ought to be independent and be free to perform its functions without fear or favour.

Guest speaker, Dr Muiz Banire, SAN, said that the challenges confronting the judiciary were borne out of the need to understand the importance of the concept of the independence of judiciary.

He emphasised that it is only in the presence of an independent judiciary that the confidence of the public could be sustained in the administration of justice.

“In fact, of fundamental importance, if other branches of government will not be allowed to assume the status of a monster, is to ensure the existence and independence of the judicial authorities, so that their decisions are reached in accordance with law and not in submission to the wishes of government or upon other extraneous considerations”, Banire said

He regretted that the process of selection of judges now dominated by desperate applications and politicians who often mount pressure for appointment, noting that political surrogates who have not been in practice for years or whose knowledge of law below the standard required.

“Indeed, the doctrine of separation of powers is well entrenched in the constitutions of many nations of the world, and the reason being that powers should not be concentrated in one organ of government to avoid arbitrariness and tyranny”, he said

One of the discussants, Ebun-Olu Adegboruwa, SAN, said that the theme comes at a time when a negative perception of the Nigerian Judiciary is pervasive among the common man on the streets.

He said that going by the democratic system of government in operation, the powers of government were basically operated through tiers of government, the Legislative, the Executive and the Judiciary, saying that judiciary was the closest and most accessible branch of government to the common man.

He said that the role of judiciary could not be over emphasised being the stabiliser in a political system wherein it plays a divine role as the guardian and custodian of the constitution, noting that it was further invested with the power to checkmate the other arms of government by compelling the legislature to act within its constitutional limits while performing its legislative duties.

Leke Kehinde, in this article, examines among others, the propriety of the freezing of some companies’ accounts by the Federal High Court (FHC) pursuant to ex-parte motions for interim injunctions by the Governor of the Central Bank of Nigeria (CBN), within the context of the provisions of the FHC (Civil Procedure) Rules 2019, the Banks and Other Financial Institutions Act (BOFIA) 2020 and the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act, 1995 (FEA).

Pursuant to a motion ex parte filed on August 4, 2021, the Governor of the Central Bank of Nigeria applied to the Federal High Court for an order freezing the accounts of Risevest Technologies Ltd, Bamboo Systems Technology Ltd, Chaka Technologies Limited and Trove Technologies Ltd for 180 days. The CBN Governor’s application was granted and the matter was adjourned to February 20 for hearing.

The grounds of the CBN Governor’s application were that these fintech companies were using foreign exchange sourced from the Nigerian market to purchase foreign securities and that some of the firms were engaged in cryptocurrency trading in contravention of several CBN directives.

This paper examines the procedural framework of ex parte applications for interim injunctions, the basis for interim injunctions and ex parte orders, the conditions that must be satisfied before an order of interim injunction may be granted and the propriety of the court order freezing the accounts of the fintech companies for 180 days, pursuant to an ex parte application by the CBN Governor.

INTERIM INJUNCTIONS

An injunction is an equitable order restraining the person to whom it is directed from doing the thing specified in the order. Interim injunctions are for a short period and are typically granted in special circumstances and extremely urgent situations where there is no time to put the other party on notice and have the judge hear from both sides. It is usually granted for a few days or pending the hearing of a motion on notice.

EX PARTE APPLICATIONS

An ex parte application is an application made to the Court in the absence of the defendant/respondent. Ex parte applications are usually made in cases where it is impossible to secure the presence of the defendant/respondent or where the urgency of the situation requires that an application be made to the court immediately and there isn’t sufficient time to put the defendant/respondent on notice.

Ex parte applications have a very frosty relationship with the constitutional right to fair hearing guaranteed under section 36(1) of the 1999 Constitution (as amended). The right to fair hearing is a fundamental and constitutional right of a party to a dispute to be afforded an opportunity to present his case to the adjudicating authority. The right to fair hearing is so fundamental that it cannot be waived neither can its breach be acquiesced.

In light of the constitutional right to fair hearing under section 36(1) of the 1999 Constitution (as amended), the existence of real urgency, and not self-imposed urgency, or/and the likely occurrence of irreversible harm are the essential conditions for the grant of an ex-parte application.1

EX PARTE INTERIM INJUNCTIONS

The problem of abuse of the power of issuing interim injunctions ex parte has been with us for years. In the case of OKECHUKWU v. OKECHUKWU [1989] 3 NWLR (PT. 108) 234, Uwaifo JCA (as he then was) held that:

“It is most disturbing that the use of ex parte injunction by some judges cannot be supported in any measure either on the applicable principles or on the facts. They do not seem to advert to the need for caution in the exercise of that extraordinary jurisdiction. They appear to give the impression that the discretion is so personal that it does not matter if others see it as a means of inflicting undeserved punishment and hardship on another party or other persons. It has again become necessary to issue a reminder that even where everything points favourably to the granting of an ex parte injunction, there is always the need to make its life short; and indeed, for an undertaking by the person who obtains it . . . These were completely overlooked in this present case in which, indeed, a step has been taken further. The defendant who has not counter-claimed was given the benefit of an interim injunction behind the back of the plaintiff. This is most indefensible and unlawful.”

The basis of an ex parte order of interim injunction is the existence of special circumstances which require that the order must be made; otherwise irretrievable harm or injury would be occasioned to the prejudice of the applicant. Put in another way, if the matter is not shown to be urgent, there is no basis for granting an ex parte application for an interim injunction.

The procedural rules governing ex parte applications in the Federal High Court are set out in the Federal High Court (Civil Procedure) Rules 2019. The relevant provisions are:

Order 26 Rule 5(3): An applicant shall not make an application for an injunction ex parte unless he files with it a motion on notice in respect of the application.

Order 26 Rule 6(1): A motion ex parte shall be supported by an affidavit which in addition to the requirement in rule 3 of this Order shall state sufficient facts why a delay in granting the order sought may lead to irreparable damage, loss, injury or serious mischief to the other party.

Order 26 Rule 10

(1) An order made on motion ex parte may not, unless the Court otherwise directs in the interest of justice, last for –

(a) More than 14 days after the party or person affected by the order has applied for the order to be varied or discharged; or

(b) Another 14 days after application to vary or discharge it has been argued.

(2) An application to vary or discharge an order made ex parte may be made by the party or person affected within 14 days after service and shall not last for more than 14 days after the application has been argued unless the Court otherwise directs.

(3) Where a motion to vary or discharge an ex parte order is not taken within 14 days of its being filed, the ex parte order shall lapse unless the court otherwise directs in the interest of justice.

The foregoing provisions reveal that, by their nature, ex parte interim orders are granted under exceptional circumstances and are only in force for a short period.2Although a court has the discretion to direct that an ex parte order should last for more than 14 days, such orders are rarely made and when made it must be based on compelling evidence that there are exceptional circumstances that warrant such a direction.

THE CBN GOVERNOR’S EX PARTE APPLICATION FOR AN INTERIM INJUNCTION

The CBN relied on the powers of the Federal High Court to make an ex parte orderof interim injunction under Order 26 Rule 5(2) of the Federal High Court (Civil Procedure) Rules 2019 and section 97(1) of the Banks and Other Financial Institutions Act (hereinafter “BOFIA”), 2020.This power was exercised by the court and the accounts of the fintech companies were frozen for 180 days. The propriety of granting an ex parte order of interim injunction for such a long period has already been discussed in this article. Granting interim injunctions for such long periods in the absence of the affected party raises issues of fair hearing. However, it must be noted that the CBN Governor’s ex parte application was brought under section 97(1) of BOFIA and the provision is silent as to how long an ex parte interim injunction should last. Coupled with Order 26 Rule 10(1) of the Federal High Court (Civil Procedure) Rules 2019 that gives the court the discretion to make an ex parte Order of interim injunction for more than 14 days, it becomes an issue of fact, rather than pure law, whether the court exercised its power judicially and judiciously.

The power of a court to grant an interim/interlocutory order is a discretionary power that must be exercised judicially and judiciously.Case law provides that the following conditions ought to guide the court in the exercise of such power: (1) existence of legal right; (2) substantial issue to be tried; (3) balance of convenience; (4) irreparable damage or injury; (5) conduct of the parties; (6) Undertaking as to damages; (7) Extreme Urgency. In this article, the existence of a legal right and the balance of convenience would be examined, vis-a-vis the CBN Governor’s ex parte application.

LEGAL RIGHT: In the case of Akapo v. Hakeem-Habeeb [1992] 6 NWLR (Pt. 247) 266 @ 289 the Supreme Court, per Karibi-Whyte JSC, reiterated that the essence of the grant of an injunction is to protect the existing legal right or recognisable right of a person from unlawful invasion by another. Therefore, the first hurdle an applicant for an order of injunction must surmount is to show the existence of a legal right that is being threatened and deserves to be protected.

The CBN Governor relied on the legal rights conferred on him by section 97 of BOFIA, as well as sections 8 and 20 of the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act, 1995 (hereinafter “FEA”).Sections 8 and 20 of the FEA give the CBN supervisory and regulatory powers over the Nigerian Foreign Exchange Market while section 97 of BOFIA gives the governor the power to make an ex parte application to the Federal High Court for an order freezing a bank account where the governor has reason to believe that transactions undertaken in the account are such as may involve the commission of any criminal offence under any law. Based on sections 8 and 20 of the FEA, and section97 of BOFIA, the source of the CBN Governor’s legal right to an Order freezing a bank account stems from the CBN’s regulatory and supervisory role over the Nigerian Foreign Exchange Market and the use of money in an account towards the commission of an offence. Where no offence is alleged then the CBN Governor does not have the legal right to apply for an order freezing a bank account.

Offences alleged against the companies

To this end, the CBN Governor asserted that the fintech companies committed criminal offences by violating sections 11(a) and 21(3) of the FEA, and memorandum 25(5)(b) of the CBN FX Manual, 2018. The foregoing provisions are reproduced verbatim thus:

Section 11, FEA.

Nothing in this Act shall be construed –

(a) As permitting any unrestrained or general dealing in foreign currencies on terms inconsistent with the provisions of this Act.

Section 21, FEA.

(1) A person who imports foreign currency in excess of US $10,000 or its equivalent in cash and not by means of a bank draft, mail or telegraphic transfer and deposits the foreign currency in a domiciliary account with an authorised dealer shall only make cash withdrawals from the account.

(2) The foreign currency referred to in subsection (1) of this section which has been imported into Nigeria in cash shall only be exportable from Nigeria in cash.

(3) For the avoidance of doubt, no authorised dealer shall permit or in any way facilitate the withdrawal of the foreign currency referred to in subsection (1) of this section by any means other than by cash.

Section 25(5)(b), CBN FX Manual, 2018.

Where a person imports foreign currency in excess of $10,000 or its equivalent in other foreign currencies, in cash and deposits same in the Domiciliary Account, withdrawal from the account shall be in cash only.

Offences within the meaning of the Constitution

Pursuant to section 36(12) of the 1999 Constitution, a criminal offence must be defined and the penalty prescribed in a written law. The constitutional requirements of definition (being made explicit or precise with limits) and prescription of penalty are geared towards giving citizens clarity and direction on those acts or omissions that constitute criminal offences and those that do not. Furthermore, they are to ensure that arbitrary punishment is not handed out to persons for acts or omissions that have been criminalised.

An examination of the affidavit attached to the CBN Governor’s ex parte application reveals that the allegations against the fintech companies are:

1. Illegal foreign exchange transactions: The CBN alleges that the Fintech companies were engaged in accessing/procuring foreign exchange via their Banks from the Nigerian Foreign Exchange Market, via several Bureaux de Change and International Money Transfer Operators, and have transferred cash deposits of more than $10,000 to various overseas accounts contrary to the provisions of the Foreign Exchange Monitoring and Miscellaneous Provisions Act.
2. Non-documentation in violation of the Foreign Exchange Monitoring and Miscellaneous Provisions Act.
3. Trading in foreign securities and cryptocurrencies: The CBN alleges that outflows from some of the Fintech companies’ bank accounts were made to cryptocurrency traders like BuyCoins and Beltium Venture. According to the CBN, inquiries on the transactions confirmed that the transfers to Buycoins were for the purchase of cryptocurrency and are in contravention of the CBN Circular referenced TED/FEM/FPC/GEN/01/012 and BSD/DIR/PUB/LAB/014/001, dated February 5, 2021 and July 01, 2015 respectively.

None of the allegations made against the fintech companies is defined as a criminal offence under either sections 11 and 21(3) of the FEA or memorandum 25(5)(b) of the CBN FX Manual, 2018. With regards to section 21(3) of the FEA and Memorandum 25(5)(b) of the CBN FX Manual, 2018, the allegation against the fintech companies is not the withdrawal of foreign currency that has been imported into Nigeria and deposited in a domiciliary account by any means other than by cash. Rather, it is the procurement of foreign exchange via their Bank from the Nigerian Foreign Exchange Market and the transfer of more than $10,000 to various overseas accounts.

Nothing burger

Therefore, the allegation against the fintech companies does not fall within the ambit of 21(3) of the FEA or memorandum 25(5)(b) of the CBN FX Manual, 2018. Even if it did, neither 21(3) of the FEA or memorandum 25(5)(b) of the CBN FX Manual, 2018 has been defined as a criminal offence nor a penalty prescribed in any written law. As for the substantive allegations – procurement of foreign exchange via their bank and transfer of over $10,000 to overseas accounts – these allegations are not defined as an offence under the FEA, neither does the FEA prescribe a penalty for any of these allegations.

Similarly, the CBN letter to DMBs, NBFIs and OFIs, dated February 5, 2021, merely prohibited the facilitation of cryptocurrency payments. The letter does not suffice as written law and, assuming it did, it does not define cryptocurrency trading as an offence nor prescribe punishment for cryptocurrency trading. A penalty is sufficiently prescribed when it is stated by a written law with a definite nature, type and quantum.3In the case of George v FRN (2014) 5 NWLR (Pt. 1399) 1 @ 21 – 22, paras: H – A the Supreme Court, per Fabiyi JSC, held that:

“It is clear from the reproduced portion of exhibit P3, as above, that it contains guidelines which forbids splitting of contracts by any officer. It stipulates that breach of same shall be met with disciplinary action. This may be in form of administrative action against an officer who breaches the rules. Disobeying exhibit P3 is not made any offence by any act of the National Assembly or any law of a State House of Assembly or even the contents of exhibit P3 itself. Even then, disobedience of exhibit P3 is nowhere penalized in a written law. Any conduct that must be sanctioned must be expressly stated in a written law to wit: an Act by the National Assembly. That is what section 36(12) of the 1999 Constitution provides.”

Facilitation of payments versus trading in cryptocurrencies

The facilitation of cryptocurrency payments and the trading of cryptocurrencies are two separate acts and the CBN letter is silent on the trading of cryptocurrencies. Nonetheless, the trading of cryptocurrency is not a criminal offence despite the CBN’s prohibition of the facilitation of cryptocurrency payments.

From the above analysis, an element of the CBN Governor’s legal right to apply to the Federal High Court for an Order freezing an account was glaringly absent. Based on the affidavit in support of the CBN Governor’s ex parte application, there was no evidence before the Court that the transactions undertaken in the fintech companies’ accounts are such as may involve the commission of any criminal offence under any law.

BALANCE OF CONVENIENCE: Balance of convenience means the comparative mischief or inconvenience to the parties. That is, who will suffer more inconvenience if the application for an injunction is granted? The Court has to balance and weigh the mischief or inconvenience to either side before granting an injunction. An injunction will be granted if the balance of convenience favours the applicant and would be refused if the balance of convenience favours the respondent.4

Unlike the existence of a legal right, which is a question of law, the balance of convenience is a question of fact. It is my opinion that the balance of convenience weighed heavily in favour of the fintech companies because, having granted the injunction, the fintech companies’ business has been crippled and the source of livelihood of all their employees has been taken away. The reputations of the fintech companies have also been damaged and customer confidence is slowly being eroded. Furthermore, the money belonging to their customers is inaccessible due to the freezing of their accounts. Therefore, customers who need to withdraw money held with the fintech companies to meet urgent needs are hindered from doing so. According to the CBN’s affidavit, the fintech companies’ transactions have caused and are causing significant financial loss to members of the public. This is a mere assertion and there was no documentary evidence attached to the affidavit to back up this claim. The further prevention of a criminal offence would have tipped the scale in favour of the CBN Governor but that allegation is unsubstantiated.

DISCHARGING AN EX PARTE INTERIM ORDER

As stated earlier in this Legal Opinion, an ex parte Order ought not to last for more than a few days, usually the next motion day and a party affected by an ex parte Order may apply to the Court to discharge or vary the Order. The law is that where a Court makes an ex parte Order without jurisdiction, the Order can be varied or discharged, depending on the circumstances of the case. In the case of FRN v Ozekhome (2021) 9 NWLR (PT. 1782) 448 @ 473, paras: F – G the Court of Appeal held that:

“On the other hand, the life span of an ex parte order is expected to be short as an interim measure, the lower court was right to have discharged the interim order ex-parte made on 7/2/2017, in which an order of forfeiture was made to freeze or attach for 120 days, the account belonging to the chambers of the respondent, Mike Ozekhome (SAN) . . .”

Where any of the conditions for granting an ex parte interim Order was not been met before the Order was made (Existence of a legal right, the balance of convenience, etc.) or the terms of the Order is a breach of the affected party’s right to fair hearing, the affected party can apply to the Court to set discharge or vary the Order.

LEKE KEHINDE, BEng, LLB, BL, LLM, MCIArb (UK)

Partner, Akinlolu Kehinde & Co.

(Footnotes)

1ITAMA & ORS v OSARO-LAI (2000) 6 NWLR (PT. 661) 515 @ 522; ETOLUE v OKUAGU (1997) 7 NWLR (PT. 609) 83 @ 94

2Kotoye v C.B.N. (1989) 1 NWLR (PT. 98) 419 @ 440

3AG-FED v ISONG (1986) 1 Q.L.R.N. p. 75.

4Egbe v Onogun (1972) LPELR-1034 (SC)

 

Mr S.O. Giwa argues that the principle of law that declaratory reliefs cannot be granted on admission is only applicable and relevant where either of the parties makes a factual admission in their pleadings and the relief sought is a declaratory relief.

s society grows, so as the practice and procedure in Nigerian Courts keep changing. This dynamism often calls for amendment of court procedure and amendment of the existing rules of courts in force to accommodate the intended innovative procedure for speedy determination.

Before the evolving practice of ‘frontloading’ in civil actions in Nigeria which ensures that there is no trial by ambush and expedites the hearing is a widely known principle of law that declaratory reliefs cannot be granted on mere admissions or default of pleadings.

This widely known principle was reiterated in plethora cases among which are: Ani vs. Nna (1996) 4 NWLR (Part 440)101 (CA); Nwololo vs. Ukegbu (1997) 4 NWLR (Part 500) 436 (CA); Odunsi vs. U.N.M. I.C (1998) 2 NWLR (Part 536) 95 (CA); U.B.N Ltd vs. Jimba (2001) 12 NWLR (Part 727) 505; (CA); NEPA vs. Adesaji (2002) 17 NWLR (Part 797) 578 (CA); Ogolo vs. Ogolo (2003) 18 NWLR (Part 852)494 (SC); Kwajaffa vs. B.O.N Ltd (2004) 13 NWLR (Part 889) 146 (SC); Ogolo vs. Ogolo (2006) 5 NWLR (Part 972)163, Obawole v. Williams (1996) 10 NWLR (Part 477) 146 (SC), Sijuade vs. Oyewole (2012)11 NWLR (Part 1311) 280 (CA) and Okoye v. Nwankwo (2014) 15 NWLR (Part 1429) 93 (SC), Dumuz Nig. Ltd v. Nwakhoba (2008) 18 NWLR (Part 1119) 361 (SC) and Maja v. Samouris (2002) 7 NWLR (Part 765) 78. Just to mention but a few.

It is to be noted that the rules of court considered in establishing and reiterating the principle of law that declaratory reliefs cannot be granted on mere admissions or default of pleadings were bereft of any provision of frontloading of witness statement on oath and documents to be relied on at the trial. Thus, the pre-frontloading rules of court forms the springboard upon which a wide known principle of law that declaratory reliefs cannot be granted on mere admissions or default of pleadings is premised.

It is the writer’s observation through strenuous research of reading through reported cases on the principle of law that declaratory reliefs cannot be granted on mere admissions or default of pleadings that before the evolving practice of ‘frontloading’ in civil actions in Nigeria a claim for declaration whether of title or not is not established by admission as the claimant/plaintiff must satisfy the court by credible evidence that the claimant is entitled to the declaration. Thus, until evidence is deduced and properly assessed by the court, a declaratory relief cannot rightly be given in a favour of claimant/plaintiff.

The writer’s research evinced that this principle of law that declaratory reliefs cannot be granted has become ubiquitous principle of law in the practice of law to the extent that many legal practitioners hold on to the said principle for use in their submissions in court with little or no care for the effect of frontloading on the said principle.

This belief of many legal practitioners that even with the advent of frontloading which requires filing of witnesses’ statement on oath as an accompaniment of the writ of summons, the originating process, the principle of law laid down prior to the evolvement of frontloading in our judicial system is still much applicable with a neglect to the principle of law that a case is an authority for what it decides and the rules of court considered in coming to such conclusion by the court.

It is fundamentally important to clear the air and dislodge such belief and stand of many legal practitioners that the principle of law stating that the declaratory reliefs cannot be granted on admission or default of pleadings is not a blanket principle of law in Nigeria and its application to defendant’s failure to file his statement of defence has since ceased by the evolvement of frontloading in the rules of court now in operation in the states of the Federation of Nigeria and the decision of the Supreme Court in GE Int’l Operations (Nig.) Ltd vs. Q-Oil & Gas Services Ltd (2016) 10 NWLR (Part 1520)304 at 330 paragraphs F-H.

Before delving into the discussion on the decision of the Supreme Court in GE Int’l Operations (Nig.) Ltd vs. Q-Oil & Gas Services Ltd (2016) 10 NWLR (Part 1520)304 at 330 paragraphs F-H, it is pertinently important to make reference to some earlier cases decided by the Supreme Court wherein the principle of law that declaratory reliefs cannot be granted on admission or default of pleadings was restated and re-echoed for the readers to appreciate the writer’s stand that not only that the case is an authority of what it was decided but also it is a misguided position or stand to hold on to the principle of law laid down prior to the advent of frontloading which states that declaratory reliefs cannot be granted on admission or default of pleadings without finding out which rules of court were considered to arrive at that principle.

It is not in doubt that some legal practitioners would want to argue that the said principle of law is the decision of the Supreme Court, the Apex Court in Nigeria, or conclude that the principle of law in GE Int’l Operations (Nig.) Ltd vs. Q-Oil & Gas Services Ltd (2016) 10 NWLR (Part 1520)304 at 330 paragraphs F-H conflicts with the earlier decisions of Supreme Court in many cases they have in their practice note.

To save those legal practitioners of their energy and time for such arguments, the below Supreme Court cases of Obawole v. Williams (1996) 10 NWLR (Part 477) 146, Okoye v. Nwankwo (2014) 15 NWLR (Part 1429) 93, Dumez Nig. Ltd v. Nwakhoba (2008) 18 NWLR (part 1119) 361 and Maja v. Samouris (2002) 7 NWLR (Part 765) 78 are under discussed to broaden the horizon of the readers.

 

OBAWOLE V. WILLIAMS

The Defendants filed their Statement of Defence as well as their Counter-Claim but the Defendants placed heavy reliance on the Plaintiffs’ admission of radical ownership of the defendants to the land but led no evidence of which the defendants could take advantage to bolster the weakness in their case. Fortifying this is the holding of the court which reads:

‘As it so happens in this case, the defendants sought in their claim a declaration of entitlement to a right of occupancy; the onus was on them. Therefore, to establish the title they claimed, they adduced no evidence in support of their claim. They, therefore, cannot succeed on the counter-claim. They cannot rely on the plaintiffs’ admission in the pleadings to discharge the burden on them.’

 

OKOYE V. NWANKWO

Statement of defence was filed and the contention in the case was that the defendant admitted therein that plaintiffs’ ancestor was the original owner of the land in dispute. Fortifying this is the findings of the court that:

‘The defendant in statement of defence pleaded that the piece of land verged Red was the only piece of land which the defendant had ever obtained from the plaintiff, and that the plaintiff made an absolute grant of it in 1936.’

 

DUMEZ NIG. LTD V. NWAKHOBA

The case was heard on pleadings which were subjected to several amendments and further amendments by the parties and the contention on admission was the evidence of the 1st plaintiff under cross-examination that he did not know the number of hours of overtime he and the 2nd plaintiff, Mohammed Ndakwo, put up during the period covering their claims and observed.

It is the writer’s firm stand that from the foregoing, it is crystal clear that the holding of the court in those cases and many other cases that were decided on the old rules of court of the respective State High Courts, the court first instance, which first tried those cases that the principle of law that the declaratory reliefs cannot be granted on admission or default of pleadings relates to express admission made by the parties in their pleadings and not implied admission in the event of failure of defendant to file his Statement of Defence.

It is worth saying that though in the case of Maja v. Samouris, the case decided on the High Court of Lagos State (Civil Procedure) Rules 1972, the defendant only entered appearance to the suit but failed to file his statement of defence, not only that the holding of the Supreme Court in the case that the court does not make declarations of right either on admission or in default of defence without hearing evidence and being satisfied by such evidence to the plaintiff’s entitlement to such a right was made as a reference to its earlier decision in Ogunleye v. Arewa (1960) WRNLR 11 heavily relied on by the appellants’ counsel to draw distinction from the Maja’s case which was for special and general damages for trespass and nuisance, but also the provisions of Order 24 of the rules of court considered were the provisions of the old Lagos State High Court (Civil Procedure) Rule made in 1972. Fortifying this is the holdings of the court which read thus:

‘I need only state that the decision of this court in the Ogunleye’s case is, with respect, totally irrelevant and inapplicable to the issue under consideration in the present appeal. This is because it will presently be shown; in the first place, that the claim in the present appeal is for an unliquidated pecuniary damages which are covered by the provisions of Order 24 rule 4 ibid and does not come within the purview of the provisions under Order 24 rule 11 of the High Court of Lagos State (Civil Procedure) Rule, 1972. This is unlike the action for declaration of title to land with which the decision in the Ogunleye case was concerned and which, not having been covered by the preceding Rules 1 to 10 of Order 24, clearly comes within the purview of the provisions of Order 24 rule 11 of the relevant rules of Court’

It is also noteworthy that the holdings of the Supreme Court in cases of Ogunleye v. Arewa (supra) and Motunwase v. Sorungbe (1988) 5 NWLR (Part 92) 90 that the declaratory reliefs cannot be granted on admission were decisions before the introduction of frontloading which requires filing of witnesses’ statement on oath held to be evidence even without being adopted by the witnesses in the box in GE Int’l Operations (Nig.) Ltd vs. Q-Oil & Gas Services Ltd (2016) 10 NWLR (Part 1520)304 at 330 paragraphs F-H under discussion.

Putting the widely known principle of law that declaratory reliefs cannot be granted on mere admissions or default of pleadings into a test in an appeal filed by GE Int’l Operations Ltd before Court of Appeal, Port Harcourt division against the default judgment given in favour of Q-Oil & Gas Services by High Court of Rivers State in default of pleadings without a trial; the appellate court affirmed the default judgment which includes declarative reliefs delivered by the High Court of Rivers State in favour of Q-Oil & Gas Services against GE Int’l Operations Ltd.

In GE Int’l Operations Ltd vs. Q-Oil & Gas Services reported in 2015 by Nigerian Weekly Law Report part 1440 at page 244, the respondent (claimant at the High Court) sued the appellant (defendant at the High Court) before High Court of Rivers State for some declaratory reliefs, special and general damages. The originating processes, the respondent’s list of witness, witness statement on oath and documents relied on by the respondent were duly served on the appellant. Upon the failure of the appellant to enter appearance to the suit, the respondent filed an application for default judgment. The said application was also served on the appellant. The application for default judgment was heard and all the reliefs sought by the respondent in its originating processes were granted. Aggrieved, the appellant appealed to the Court of Appeal.

In determining the appeal, Justice Eko, J.C.A in his pronouncement at page 271 paragraphs B-C established a principle of law inter alia that there is no need for the witness to be put in the witness box for cross –examination on his depositions on oath where the Claimant’s claim is not contested or challenged. The lordship held thus:

‘The instant case on appeal was not contested and there was therefore no need for the witness to be put in the box for cross-examination on his deposition on oath.’

It is noteworthy to submit that in the said judgment, the lordship did also re-echo the principle of adoption of witness statement on oath at the trial where the claimant’s claim is contested and this principle is distinctly distinguished from a situation where the claimant’s claim is not contested. Supporting the distinction made by the lordship as to when the witness is duty bound to adopt his or her witness statement on oath and when the witness has no such duty of adoption of his witness statement on oath at the trial is the holding of the lordship at page 271 paragraphs D-G wherein the lordship held thus:

‘I am, therefore, of strong view that the principle of law that declaratory reliefs cannot be granted on mere admissions or default of pleading applies to declarative reliefs in statements of claims not backed by affidavit evidence. In my judgment, therefore, I accept and hold that a witness statement made on oath is an affidavit, and the trial court can act on it to make or give declaratory judgment. If the facts therein are not disputed, challenged or contested, particularly where the declaration therein and the pleadings in the statement of claim, which the declarations on oath attest to, are not inconsistent or mutually contradictory.’

The fundamental question that flows from the above quoted holding of the court that declaratory reliefs cannot be granted on mere admissions or default of pleading applies to declaratory reliefs in statements of claims not backed by affidavit evidence is that: Is a statement on oath an affidavit evidence?

The lordship in defining an affidavit at page 270 paragraphs B-D says thus:

‘In law and common parlance, a written statement that its maker swears to the truth thereof is an affidavit.’

In defining witness statement on oath as springboard for the novel principle in focus, the Lordship has this to say:

‘A deposition is a witness’ out–of-court testimony that is reduced into writing for use in court. It becomes an affidavit if the deponent swears to an oath that the declarations made therein are the truth of the matter.’

In further testing the novel principle that declarative reliefs can be granted in default of pleadings or admission where the claimant’s claim is not contested or challenged, the GE Int’l Operations Ltd, the appellant, appealed to the Supreme Court.

In giving approval to the novel principle that declarative reliefs can be granted in default of pleadings or admission where the claimant’s claim is not contested or challenged, Justice Ngwuta, J.S.C in GE Int’l Operations (Nig.) Ltd vs. Q-Oil & Gas Services Ltd (2016) 10 NWLR (Part 1520)304 at 330 paragraphs F-H held thus:

‘In my view, the evidence to support a claim for declaration can be oral or documentary. As rightly held by the lower court, the Rivers State High Court (Civil Procedure) Rules 2006 provides for the filing of witness statement. In compliance with the rules, the respondent filed a witness statement made on oath. The witness statement is in the nature of affidavit evidence.’

Flowing from the foregoing which is the gamut of this write-up is the submission that the novel principle that declarative reliefs can be granted in default of pleadings or admission where the claimant’s claim is not contested or challenged and the declarations on oath attest to, are not inconsistent or mutually contradictory.’

It is important to conclude this piece by submitting that the provision of order 20 rule 9 of the Rivers State High Court (Civil Procedure) Rules 2006 in consideration for the said novel principle is in all fours with the provisions of the High Court (Civil Procedure) Rule in all States of the Federation.

Finally, it is the writer’s stand that the principle of law that declaratory reliefs cannot be granted on admission is only applicable and relevant where either of the parties makes a factual admission in their pleadings and the relief sought is a declaratory relief. Hence, the principle is applicable to express admission in the pleadings of either of the parties and not an implied admission deductible from default of pleading by the defendant.

 

• GIWA ESQ. a.k.a pentalk, an Ibadan-based lawyer can be reached at giwa_pentalk@yahoo.com

By Joseph Jibueze

Rights  activists have urged the government to adopt the Universal Social Protection System towards eliminating poverty and enforcing the right to human dignity.

They emphasised that social protection is a right and not a token or favour, noting that such an intervention has remained low in Nigeria, especially during the COVID-19 crisis.

No fewer than 55 non-governmental organisations (NGOs) participated in the People’s Assembly, organised as part of the Global Week to Act for the Sustainable Development Goals (SDGs).

Organised by the Nigeria Network of NGOs in partnership with the Society for Family and Social Protection in Nigeria and the Global Call to Action Against Poverty, they called for more action to accelerate the SDGs attainment.

They noted that a combination of debt burdens, inadequate health systems, largely informal economics, rural-urban migration, pre-existing medical conditions, and gender and socio-cultural disparities have made the pandemic more acute.

Executive Director, Nigeria Network of NGOs, Oyebisi Oluseyi said: “Our vision of equality and inclusion as aspired in the SDGs has become blurred. We have more poor people with more billionaires during the pandemic.

“Our country belongs to the club of nations begging for vaccine supply whereas others have secured theirs.”

Listing their demands, the organisations asked the federal and state governments to “put cash into the hands of people who need it the most, including excluded and marginalised communities, migrants and refugees, older persons, parents on parental leave, people with disabilities, the working poor, those unable to work and individuals who face gender or other forms of discrimination”.

According to them, while the government took numerous health, social and economic measures to cushion the impact of COVlD-19, some of the policy responses have weaknesses and not commensurate with the magnitude of the problem.

They noted that the proposed stimulus bill which aims to provide 50 per cent of tax rebates to businesses that are registered under the Corporate and Allied Matters Act (CAMA) 2020, does not cover many of those in the informal sector who are often supported by microfinance facilities.

They called for the creation of a Universal Social Protection Floor for all, which ensures more rights-based community-centered approach; universality of understanding and access; and universal health coverage that is vigorously pursued to assure access to quality, essential health care.

Such social protection, they said, will ensure pension payment for older persons;  income benefits for children to embrace access to quality education and nutrition; and cash transfers for people who are unable to earn sufficient income, including the unemployed.

The rights activists said more effective measures like direct bank transfers need to be strengthened and made easier for Nigerians who are without national identification.

The NGOs called on the United Nations to establish a global fund for social protection to provide the technical, advisory and financial resources that low-income countries need to establish and maintain social protection floors.

 

By Adebisi Onanuga

Prison Fellowship Nigeria has  unveiled “Promisepath” a platform designed to assist vulnerable children who are out of touch with their fathers due to imprisonment.

About 600 children, 50 from Lagos,  identified to be at risk in 10 states,  are to benefit from the pilot stage of the initiative, a baby of Prison Fellowship of Nigeria.

The Executive Director, Benson lwuagwu, disclosed this at the unveiling ceremony and presentation of letters of award to the children held at Ikeja.

Iwuagwu listed other  nine states to be involved ìn the pilot stage to include Ogun, Oyo, Ondo, Ekiti, Kwara, Benue, Plateau, Nasarawa and Niger State.

He described Promisepath as a programme designed to reach out to vulnerable and at-risk children especially those whose parents are in incarceration.

Iwuagwu said aside from mentoring and providing them with psychosocial support, the group would provide them with all the things they needed to make them stay ìn school and not miss the absence of their parents in incarceration.

He lamented that Nigeria has the highest number of children out of school in the sub-Saharam Africa with over 10 million children.

“Our youth campaign programmes, which are catch them young crime prevention initiatives align perfectly with the Promisepath programme and is our contribution at reducing the number of out of school children in line with the sustainable development goal no 4 which is to ensure inclusive and equitable quality education and promotes lifelong learning opportunities for all”, he said.

Iwuagwu said the group’s education programme would give wide ranging impact ìn the lives of children and their parents and help break cycle of ignorance , poverty and crime within the family and society at large.

He said beneficiaries must be between the ages of four and 18 in public primary or secondary schools and whose parents are incacerated either through sentencing or pre-trial detention in Correctional facility.

Lagos State Commissioner for Education, Mrs Folashade Adefisayo, in a goodwill message, commended the initiative of the group noting that it was in line with the position of the state government on education that “no child should be left without education”.

The Commissioner who was represented by Director, Child Guidance, School Counselling and Special Education, Mrs Olusola Somoye, also noted that it was an initiative aimed at ensuring that no child is left on the street to become  a criminal ìn the future.”It is a seed you are sewing. What you input ìn the child now will go a long way to determine what he would be in 10 years time”, she said.

She noted that children out of touch with their parents have the potential to become criminals when they go to the streets and partake in negative things happening around them.

She commended the group for the steps they are taking to keep vulnerable children off the streets so that they would become useful to the society tomorrow.

 

The newly inaugurated Lagos State Domestic and Sexual Violence Agency (DSVA) has held its commendation and award night  to commemorate the Domestic and Sexual Violence Awareness Month, September 2021, ADEBISI ONANUGA reports

Stakeholders in the Sexual and Gender Based Violence (SGBV) protection agencies gathered in Ikeja last week to honour individuals, police stations, non-governmental organisations (NGOs), corporate organisations among others that have shown high level of commitment to tackling the scourge.

The Commendation and Award Night to commemorate the Domestic and Sexual Violence Awareness Month, September 2021, held at Excel Events Centre, Billingsway, Ikeja.

Governor Babajide Sanwo-Olu used the platform to assure survivors of domestic and sexual violence that his administration would continue to give them support and ensure that the justice system remains fully accessible them.

“To all victims and survivors of domestic and sexual violence, I say we believe you and we stand with you. As always, we will support you to speak your truth, receive the support you need and ensure that the justice system remains fully accessible to you”, he said.

The governor, who was represented by the Head of Service, Hakeem Muri-Okunola, disclosed that  in view of the public health implications arising from the aftermath of sexual violence, government under the Lagos State Health Insurance Scheme recently launched an intervention fund which now ensures survivors are able to access immediate medical attention at all Primary Health Centres, General Hospitals and designated private hospitals at no cost.

He said government has also intensified its advocacy efforts to ensure residents become better informed of support services available and listed this to include the creative use of social media to increase knowledge and awareness on these critical issues of the zero tolerance stance of the current administration to sexual and gender-based violence and also community engagements which have taken place across the metropolis.

“Furthermore, we are empowering survivors to break the cycle of abuse with programs to help them become financially independent. This has helped tackle the major issue of dependency, which is the biggest factor that stops most female victims from speaking out, and we are promoting tools for better enforcement of protective orders, while helping survivors gain access to free legal representation”, he stated.

Governor Sanwo-Olu contended that the time has come to institutionalize the various initiatives aimed at fighting sexual and domestic violence adding that this was why he recently assented to the law establishing the Domestic and Sexual Violence Agency and appointed the former Coordinator of DSVRT, Mrs Titilola Vivour-Adeniyi as Executive Secretary of the agency.

“With this move, we expect to drive a pioneering, sustainable and systematic approach in consolidating the state’s effort towards tackling the issues of Domestic & Sexual violence and remain ahead of the curve.

“Despite these milestones, we recognise that there is even more work to be done. If we truly desire a Lagos where all individuals rights are protected and all boys, girls, women and men are free from violence, abuse, oppression and discrimination, we cannot afford to leave this important work to chance”, he said.

The governor added that the commendation and award was a demonstration of how effective collaboration can add value to the society, it reinforces the need for collaboration, partnership and community commitment and that this was why he decided to honour and celebrate key stakeholders who have distinguished themselves by supporting the government’s fight against sexual and gender based violence.

The Chief Judge, Justice Kazeem Alogba, represented by Justice Adenike Coker, described the incidences of domestic and sexual violence in the state as very disturbing saying that this was why special courts were established to handle their cases related to the vice.

Justice Alogba said the judiciary has been involved in every initiative to bring the scourge to an end and assured the public of zero tolerance of the courts for such crimes and the reason why high prison term was being imposed on convicts.

Wife of the Governor, Dr (Mrs) Ibijoke Sanwo-Olu charged the new agency to work hard and stamp out rape, defilement, abuse and related vices in the state.

“To the team, you have all done well. However, we need to do more to scale up the fight against SGBV”, she said.

Mrs Sanwo-Olu thanked members of the DSVRT for “their support and commitment to the cause and for going beyond call for duty to provide help and succour for survivors.”

She said: “The recognition award conferred on you should serve as a motivation to spur us to continue to do our best and to key into the vision of zero tolerance for all forms of SCBV in Lagos State.”

Chairman, Women Committee of the Lagos State House of Assembly, Hon, Mrs Mojisola Macaulay was delighted to have navigated the passing of the bill that led to the upgrading of DSVRT to a full agency under its Executive Secretary, Mrs Vivour-Adeniyi.

“The obligation to eradicate domestic and sexual violence, I find it close to my heart. As assembly member, as a mother and wife, I find it difficult to see women being abused.”

She urged mothers to keep close tabs on their female children and who they are close with within and outside the family.

The Attorney General and Commissioner of Justice, Moyosore Onigbanjo, SAN, explained that the law establishing the new DSVA amongst other things establishes a Domestic and Sexual Violence Trust Fund saying that once operational, “the fund would be deployed for the investigation and prosecution of reports of domestic and sexual violence matters; provision of medical, legal and counseling assistance for victims of domestic and sexual violence crimes; and provision of seed grants for business, relocation or medical assistance where necessary.

“Through this intervention, survivors will become aware that help is near, witnesses will be encouraged to speak out and save a life and perpetrators will be deterred”, he said.

Onigbanjo appreciated the Lagos State House of Assembly, and Chairman, House Committee on Women Affairs, Hon. Mojisola Macaulay, for her commitment in ensuring that the bill establishing the new agency was passed into law expediently.

He said the commendation evening provided an opportunity to honour and celebrate individuals, professionals, agencies and organisations, that have exhibited sterling commitment in the fight against sexual and gender based violence in the state.

He said the nominees have remained determined to contribute their quota to this noble cause, supporting with their expertise, time and resources, rising gallantly to the occasion every time the need arises.

“Beyond the nominees, we celebrate every individual or organisation dedicated to this worthy cause and we urge you to continuously remain encouraged as your efforts are in no way in vain. “We are indeed honoured to be affiliated with all those who understand that the fight is not over until we win. We celebrate the real heroes who despite the societal pressures, untold hardships, denials and pains were bold enough to speak out and say “enough is enough”, we celebrate all survivors of all forms of Sexual and Gender Based Violence this evening and reassure our commitment to reducing the perpetration of these crimes to the barest minimum”, he stressed.

Alakuko Police Station bagged the award of the “Best Professional Police Station”, Agege was the “Most Responsive Social Welfare Unit”; while the Itaelewa Primary Health Centre was adjudged the “Most Responsive PHC”.

Community Women Rights Foundation (CWRF) was adjudged the “Most Responsive NGO”; Most Responsive NGO on Sexual Violence award went to Cece Yara; Mrs Anyanwu Ijeoma was declared the “Most Resourceful Mandatory Reporter”; Mrs Itoro Eze-Anaba bagged the “Special Recognition Award”; UNFPA was declared the “Most Supportive Donor” while the wife of the governor, Dr. (Mrs) Ibijoke Sanwo-Olu bagged the “Most Distinguished Recognisable Award”.

By Joshua Uche

Ondo State Governor Oluwarotimi Akeredolu (SAN); a former Nigerian Bar Association (NBA) President and Life Bencher Chief O.C.J. Okocha (SAN) and founder/chairman of Aluko & Oyebode, Mr Gbenga Oyebode are among those to be honoured at the 2021 ESQ Nigerian Legal Awards.

The organiser, Lere Fashola, said it is designed to celebrate the contribution of lawyers to the economy.

He explained that the award recognises pre-eminence in key transactions, practice areas and achievements over a period of 18 months, including notable works, strategic growth, excellence in client service and contribution to the legal profession.

At a briefing in Lagos on this year’s edition of the award, Fashola said many firms, in-house teams and legal professionals made the shortlist.

“Now in its 11th year, the Nigerian Legal Awards aims to celebrate and recognise the role and importance of lawyers, legal departments in companies, and legal professionals to businesses across Africa,” he said.

Others to be honoured at the November 7 event to be held at the Landmark Centre, Oniru, Lagos, include Chairman, Union Bank of Nigeria, Mrs Beatrice Hamza Bassey; Chairman, Nigerian Deposit Insurance Corporation (NDIC), Mrs Ronke Sokefun and Company Secretary, MTN Nigeria, Mrs Uto Ukpanah, amongst others.

The finalists (lawyers and firms) fall within the General Counsel of the Year, Managing Partner of the Year, Banking and Finance Team of the Year, Capital Markets Team of the Year, Private Equity Team of the Year, Corporate and Commercial Team of the Year and Dispute Resolution Team of the Year categories.

Others are energy and power, merger and acquisition, real estate and construction, telecommunication and technology, insolvency, media and entertainment, and oil and gas teams of the year.

The categories also include aviation, intellectual property, mining, shipping and maritime, labour and employment, and immigration teams of the year, amongst others.