A prosecution counsel loses his head and – during proceedings in the presence of a Gombe Chief Magistrate – split a defence counsel’s lips with a ferocious punch. His conduct and his Nigerian Bar Association (NBA) branch’s attempt at an amicable settlement of the matter have raised questions about the quality of law graduates in Nigeria, writes ROBERT EGBE.

You would be forgiven for mistaking the scene for the aftermath of a professional boxing match: two ‘combatants’ – one belligerent, the other dazed – blood all over the floor, split lips and a bloodied shirt. But, no, it was the incredible scene inside a Gombe Chief Magistrate’s Court on September 23, 2021. Even more incredulous was that it happened during proceedings in the presence of His Worship, Chief Magistrate Yusuf Idi Saluk.

The alleged aggressor was Mr Mukna’an Kingsley Gurumyen Esq., (with enrolment number: SCN091991) while the recipient of the punch, was his senior at the Bar, Mr John M. Yuwa Esq.

Yuwa, a Jos-based legal practitioner with the Law Firm of Samuel Oguche & Co, was initially said to have lost a tooth to the blow, but he denied the claim.

Nevertheless, he demanded immediate disciplinary actions against Gurumyen for “conduct unbecoming of a legal practitioner”.

 

Blow-by-blow account

Yuwa recounted his ordeal in a September 24, 2021 petition to NBA President, Olumide Akpata.

He said: “On the 23rd day of September 2021, I appeared in a criminal matter (Case No: CMCIII/GM/42/2017 between Hajiya Ladi Baba Umar & 2 Ors V Bilyaminu Shehu & 2 Ors) (“the Case”) before the Chief Magistrate Court, sitting at Gombe, Gombe State.

“When the Case was mentioned, as a Defence Counsel, I informed the Honourable Court of the predicament of the defence: that the 3rd Accused Person, who was earlier in Court, left the court premises, before the commencement of proceedings, to quickly get medication.

“After my application for a 30-minute stand-down, the Prosecuting Counsel, one Mukna’an Kingsley Gurumyen Esq., (with enrolment number: SCN091991 ) ( “the Respondent”) was invited by the Trial Magistrate to respond.

“In his response, the Respondent stated that if the 3rd Accused Person, for whom I had sought the stand-down, was actually sick, he should be healed, but if my submission was a lie, then he the 3rd Accused should suffer more severe pains.

“Although his submission was highly concerning and provocative, I resisted the urge to quickly register my objection thereto.

“Perhaps perceiving that there was weight in his submission, his emphasis on the fact that I was lying surged; he repeatedly informed the Honourable Magistrate that I was lying, and that God would punish the 3rd Accused Person for lying.”

According to him, the Chief Magistrate, who could have intervened at this point, did not.

Yuwa said: “Initially, I had thought the Honourable Magistrate would call Respondent to order on his line of submission; but I noticed that the Magistrate was urging him on. It was at that point that I rose to object, pointing out that I was speaking from the Bar; hence I should be given the benefit of the doubt.

“More to the above, I reiterated to the Magistrate that the 3rd Accused had been in Court before the commencement of the day’s proceedings; and that my application was for a stand-down, not an adjournment.”

 

A ‘ferocious’ punch

He alleged that Gurumyen’s conduct afterwards was bizarre.

“Whilst I was still standing and trying to draw the Magistrate’s attention to the objectionable aspects of the Respondent’s submission that is, the name-calling, the Respondent started shouting and ordering me to sit down immediately.

“And before I could comply with Respondent’s ‘magisterial’ order, he stretched his hand, and punched me ferociously on my jaws. The punch tore my jaws into ugly halves, and left a stream of blood flowing profusely and unabatedly.

“It is important to state clearly that the punch came with so much ferocity and suddenness that I was left only with the option of trying to escape death. And luckily for me, one of the Accused Persons, other lawyers in court and litigants came to my rescue,” Yuwa said.

According to him, “as a law-abiding citizen, and a gentleman of the revered Bar,” he neither retaliated nor attempted to do so even afterwards.

Rather he immediately requested the 2nd accused person in the case who was in court, to call the police.

The police arrived and arrested Gurumyen, who was taken to the Police Command Headquarters in Gombe, Gombe State.

 

Round two?

But the drama did not end there. Yuwa alleged that the bizarreness continued after the Chairman of the Gombe Branch of the NBA arrived at the Command Headquarters and requested the police to allow members of the Bar resolve the matter amicably.

He said: “However, at the secretariat of the NBA, Gombe Branch, where members gathered to plead with me to forgive the Respondent, notwithstanding the grievous bodily hurt I suffered, the Respondent, to the utmost surprise of all, including myself, remained remorseless.

“He refused to utter any word of apology, and even grew more hostile towards me raining more insults and threatening more vicious blows!

“In fact, it took the intervention of senior members of the Bar, and others present at the NBA secretariat, for me to escape the second wave of the Respondent’s physical assault.”

 

Gurumyen’s side of the coin

Chairman NBA Gombe Branch, Ahmed Tukur, provided Gurumyen’s defence in a statement after the incident.

Tukur, who has been upbraided by lawyers for the poor grammar in the statement, said Gurumyen accused Yuwa of being the aggressor after a “hot argument”, while he only retaliated.

“Gurumyen on the other hand, stated that it was the wounded counsel (Yuwa) that first hit his nose with his finger, calling (him) ‘this boy, sit down!’, and that caused him to retaliate with a blow on the mouth of the wounded counsel.

“John Yuwa, Esq. denied Gurumyen’s assertion and stated that he did not touch his nose with his finger. What he only did after the attack, he instructed some of the staff present in the court to call the police.”

He explained that the branch, rather than Gurumyen, paid for Yuwa’s treatment.

“I myself took the wounded counsel to Specialist Hospital Gombe for treatment where he was scanned, diagnosed and treated with stitches inside and outer parts of his mouth before he was given a medical prescription and discharged. The Bar paid the sum of N8000 only for the hospital medical bills.

“We then went back to the office of the Police O/C Legal at the State CID Gombe along with the wounded counsel and his client with other staff of JED Gombe office where we had a long discussion on the issue with him and pleaded with him to allow the Branch to intervene and settle the matter amicably at the NBA Secretariat.

“The O/C Legal seriously showed his disappointment on the whole incident and the disputant counsel, he admonished the duo and obliged the Bar to go and settle them at the Secretariat,” Tukur said.

Confirming Yuwa’s allegation that Gurumyen was not remorseful after the incident, Tukur claimed that more insults were recorded during reconciliation attempts.

He said: “Our wounded learned colleague John Yuwo, Esq. stated that he knows Chief MK Gurumyen, Esq. since his university days in Jos. Also as a senior to Gurumyen, Esq. and both of whom hailed from the same state (Plateau), he was not expecting such an act from him.

“Then Gurumyen instantly interjected with verbal attack against the wounded counsel again. Another fresh argument between the two disputant counsel ensued again leading to the frustration of the settlement because the wounded counsel was once again bitterly sad with the insults uttered by MK Gurumyen, Esq. against his person despite the wound he sustained from his blow on his mouth.

The Jewel Branch condemned the incident, describing it as unethical.

 

Rules of professional conduct for legal practitioners

How should lawyers behave in and out of court?

The Rules of professional conduct for legal practitioners provides the guidelines in Sections 26, 35 and 36.

Section 26(1) and (2), state: “Lawyers shall treat one another with respect, fairness, consideration and dignity, and shall not allow any ill-feeling between opposing clients to influence their conduct and demeanor towards one another or towards the opposing clients.

“Lawyers shall observe among one another the rules of precedence as laid down by the law, and subject to this, all lawyers are to be treated on the basis of equality of status.”

Section 35 and 36 further state that a lawyer appearing before a judicial tribunal shall accord due respect to it and shall treat the tribunal with courtesy and dignity.

Lawyers are also expected to conduct themselves with decency and decorum, and observe the customs, conduct and code of behavior of the Court and custom of practice at the bar with respect to appearance, dress, manners and courtesy.

They are also not to “engage in undignified or discourteous conduct which is degrading to a Court or tribunal.”

 Lawyers condemn incident

Lawyers condemned the incident, describing it worrisome.

The Head of Chambers at Odinaka Obiorah & Aso LP, Odinaka Obiorah, alluded to the falling standards at the bar.

“It is time the Council for Legal Education begins to screen would-be lawyers’ background in cult and cultism. The rot is becoming worrisome,” Obiorah said.

Lateef Abdulsalam described the incident as “a disgrace.”

Abdulsalam: “Lawyers make submissions in Court through persuasive moves and efforts with cogent legal authorities not through boxing.”

According to Lagos-based lawyer Raymond Nkannebe in an article on Facebook titled ‘The Ignominy at Gombe’, the highly embarrassing and professionally discourteous acts was “a tell-tale sign of poverty of character.”

“The pictures, some of which have been making the rounds across various chat groups are as horrible as they come. It brings to mind the violent scenes of street-fighting by so-called agbero boys that populate too many a shanty across Nigerian state capitals: blood-stained shirt, bloodied nose, and a desecrated arena of justice. Holy Moses!” Nkannebe said.

Referencing the Rules of professional conduct for legal practitioners, he cautioned lawyers against being over-emotional in prosecuting their cases.

Nkannebe added: “The time-honored tradition at the Bar is for counsel to conduct their case weaned of all emotions and to deploy the endless possibilities within the law to canvass the case of their client.

“It is not for Counsel to take over the case of the client and to canvass it as though he were crying more than the bereaved. Such a tendency shakes the foundations of decorum and mutual respect upon which law practice is erected.”

What the Bar must do

The lawyer also had advice for the Bar Hierarchy regarding the incident and other similar incidents.

Nkannebe said: “These successive conducts as well as other remote ones which may not have come to popular attention, in my considered view, should move the Bar to take such display of unprofessionalism with the seriousness it deserves.

“Consequently, may I invite the National leadership of the Bar to wade into the matter through the Disciplinary Committee of the Olumide Akpata-led Nigerian Bar Association.

“This is all the more so, as the efforts of the Gombe-Bar to resolve the issue proved abortive from what one could deduce from Ahmed Tukur’s statement.

“Upon establishing a prima facie case of professional misconduct, the Committee must forward same to the Legal Practitioners Disciplinary Committee for prosecution and appropriate sanctions subject to the findings of the Committee.

“The legal profession is a highly prestigious and honourable one. For it to continue to flourish, such prestige and honour must also not be lacking in its membership. Where such is the case, the Bar must be firm and resolute in wielding the Big Stick against such members.

“This is my honest belief, and barring the outcome of this particular incident, one hopes that our courts would not be subjected to such undressing of its dignity and integrity by learned counsel in the future.”

Lawretta Ifunanya Maduegbunam’s formula for success was simple: hard work and it helped her create some of her favourite memories at the Nnamdi Azikiwe University (NAU) in Awka such as when she made straight As in multiple semesters. Maduegbunam, now seven years at the Bar, shares her law story with JOSHUA UCHE.

I am Lawretta Ifunanya Maduegbunam. I am from Nkpor in Idemili North LGA of Anambra State. I am based in Lagos and currently a legal consultant at Laurels Legal Associates.

First of seven children

My parents are business persons. They are very kind and very knowledgeable. I learnt a lot from them and still do. From my dad, I learnt being very liberal and accommodating. From my mum, I learnt being very resilient and brave. They reside in Lagos. My siblings and I were born and raised in Lagos, though we are well grounded in the ways and language of our hometown. I am the first of seven children in the family. We are Christians.

Sports, dances, drama enthusiast

I attended Primrose Nursery and Primary School, Anthony Village, Lagos. My secondary school education was in three secondary schools – Anthony Village High School, Anthony; Christ the King Secondary School, Gbagada; and Kuramo Senior College, Victoria Island; – all in Lagos. All experiences I had in school were memorable. Particularly, I loved sports, matches, cultural dances and drama and I did really well in them.

Straight ‘As’ in a semester

I attended Nnamdi Azikiwe University (NAU) in Awka, Anambra State. I graduated sometime in July 2013. I proceeded to the Nigerian Law School (NLS), Yola Campus, that same year and got called to the Nigerian Bar on November 25, 2014. One of my challenges back in school was having to read a lot of books/laws within a short time. My memorable experiences in school then were times when I had straight As in a semester.

Choice of law

I have an uncle who is a lawyer. He worked with the Federal Ministry of Justice. I didn’t accompany him to court. He lives in Abuja while I live in Lagos, but I have accompanied great lawyers to court and the experiences were remarkable.

I noticed I loved reading, marshalling out points was very critical and inquisitive, and above all, I was and am still passionate about seeing justice done. I hated and still hate any form of injustice and intimidation. I am also passionate about seeing things done rightly.

Law School success formula

I never really had an impression about how law school would be. I just knew it was serious hard work and that was what I saw when I got into the law school. My formula for success was never missing class, being active in class and, finally, studying. I wasn’t really a recreation person so I did none or very less of it.

Call to Bar party

Oh yes! We had a party. Late Hon Justice Jude Okeke (Ochudo Nkpor), a Federal Capital Territory (FCT) High Court Judge till he departed, hosted a party for me and other new wigs from my town. He hailed from my town and had a practice of hosting the town’s new wigs every year. My uncle whom I mentioned is a lawyer and lives in Abuja, together with his wife, drove me to the venue. We also had a party at his place and I invited some friends. I was really happy.

Awards at university?

Not really. I, however, was involved in some leadership positions. In year one, I was nominated by my classmates to represent them at the Law Students Association (LAWSA) Congress. It is the legislative arm of the association. In year two, I was nominated and elected as the President LAWSA Press Club. In year three, I vied for the post of LAWSA VP. I didn’t win it, though. But I made an impact despite joining the race just three days to the election. I declared my interest to run for the post on a Friday and the election was shifted back to the following Monday. Despite that, I still had a very good amount of votes considering the time I joined the race. I also wanted to go for the post of SUG VP in year four but I decided to pay more attention to my studies as I was about rounding up.

First solo court appearance

(Laughs out loud) Almost every lawyer’s first solo appearance in court is awkward or embarrassing. Mine wasn’t different. But my colleagues beside me hinted me on how to go about it when I got lost while I was addressing the court.

Current Law School grading system should be scrapped

My view about the grading system is that it should be scrapped. Let the average of the scores of the students be used to determine their final grade. For those who have complaints, I will advise that they should put in their best efforts and refuse to be discouraged by the system. A lot of us have passed through it and we came out successful.

No more wig and gown

Yes, I think they should be scrapped. Many countries do not use them currently. Nigeria shouldn’t be different. Let’s move forward.

SAN, Professor or Judge?

A SAN or a professor. I am not interested in being at the Bench. I like playing in the field.

Urgent justice sector reforms

The habit of constant adjournment of cases on both the side of the Bench and Bar should be eschewed.

Marrying a lawyer?

I am indifferent about this. Once the person meets the necessary requirements, any profession he belongs to is okay by me. This is because I view marriage beyond a person’s profession.

Hobbies over law?

My hobbies are seeing movies and advising or teaching people. If I had a second chance, I think I would still choose law. Law is beautiful and has a lot of opportunities and dimensions in it.

By Joshua Uche

Ahead of the forthcoming 2023 elections, the Centre for Anti-corruption and Open Leadership (CACOL) has urged people at the grassroots to band together and prioritise anti-corruption and accountability issues.

They can do this, it said, by scrutinising the anti-corruption credentials of aspiring candidates and subsequently voting for only credible candidates during the polls.

CACOL Chairman, Debo Adeniran stated this at a one-day consultative meeting at the Amuwo Odofin Local Government Area (LGA) headquarters in Lagos.

It was organised by CACOL in collaboration with Civil Society Legislative Advocacy Centre (CISLAC), with support from MacArthur Foundation with a focus on prioritising anti-corruption and accountability ahead of 2023.

Adeniran lamented that Nigerians at the grassroots often ignorantly leave the anti-corruption campaign to the elite, who, he reasoned, are mostly responsible for grand corruption in the first place.

He urged them to start owning the anti-graft war before the next polls.

He explained that the project’s goal is to reduce corruption in the country by bolstering support for honesty and social inclusion among critical groups, as well as strengthening policies and programmes for anti-corruption at the state level as the country prepares for elections in 2023.

Adeniran said: “Hitherto, we trained people on how to identify corruption, how to report corruption and how to participate in the prosecution of corruption cases.

“We discovered that over time, we the grassroots people left the fight against corruption to the same class of people that are committing the same corruption crimes.

“Members of this class of people are not sincere in prosecuting corruption crimes, that is why we came back to tell the people at the grassroots, to actually discuss with them, to consult with them on how best they can get aspiring politicians to prioritise anti-corruption programmes in their agenda for 2023 elections, so that at the end of the day, they would have given people some kind of information on how they will fight corruption, how they will not tolerate corruption when, if eventually they win elections.”

He urged Nigerians to “raise critical, relevant questions on how aspiring candidates want to tackle corruption if they eventually win the election, so that people will not be deceived into voting corrupt people into power all over again, because once corrupt people form a government, it is as good as the society being doomed.”

After traversing the Lagos and Ibadan judicial divisions for two years, an estranged couple agreed to withdraw their assault, fundamental rights suits, reports ADEBISI ONANUGA

In 2019, a housewife,  Temilade Ayinde-Tukur of 11B University Crescent, Beside Access Bank, Bodija UI Road, Ibadan, had petitioned the Police in Ilupeju area of Lagos alleging assault by her husband, Babatunde Banjo.

Following her petition, the police on November 20, 2019 filed a one count charge of assault against  her husband in suit number MIK/G/61/2019 at an Ikeja Magistrates’ Court before Chief Magistrate, Mrs A. O. Akinde.

Police prosecutor, Chekube Okeh, told the court that the offence was committed between August 2017 and July 7, 2018, at the defendant’s residence, 16, Abosede Kuboye Street, Surulere, Lagos.

Okeh alleged that the defendant always beat his wife, Temilade, whenever they had an argument.

The defendant pleaded not guilty and the matter went into trial, leading to several adjournments.

However,  at the last sitting of the court July 12, 2021, before Magistrate (Mrs) Oluchi Emeka-Opara, the defendant was in court while the petitioner was absent.

There was also no witness in court.

Prosecuting Inspector Dada Oluseun informed the court that the petitioner was outside jurisdiction and that he tried her number but that it was not available.

Counsels to the defendant, Akinlaja Ogunnaike and Williams Ajike said as at the last sitting of the court, they brought a judgment of an Ibadan High Court and that part of the decision was for the petitioner who was also referred to as the complainant, to withdraw all allegations and charges against the respondent in court.

In her judgment, a copy of which was obtained by The Nation last week, Magistrate (Mrs) Oluchi-Opara struck out the charge and discharged the respondent of the one count charge of assault brought against him by the police.

Magistrate Oluchi-Opara held: “The court has sighted and perused the said terms of settlement signed duly executed by the complainant and the defendant in the divorce matter between parties dated 20/11/2020.

“The court has sighted paragraph 5 of the said terms of settlement dated 20/11/20, the complainant then as the petitioner ‘agreed to withdraw all allegations and charges against the respondent herein referred as the defendant. It is also before the court notice that the defendant was arraigned on 20/11/2019 and the said term of settlement is dated 20/11/2020) which means that the said Terms of Settlement has taken over the event of 20/11/19.

“On the above findings, the charge is hereby struck out and the defendant is discharged she held.

During the pendency of the suit at Ikeja Magistrates Court,  the petitioner had gone forum shopping at Ibadan and filed a fresh petition against her husband with the Police at Divisional Police Station, Apata, Ibadan.

Read Also: ‎Judiciary in bad shape, says Appeal Court’s President

The petitioner through her counsel,  Miss S. R.  Makanjuola, also filed a fresh suit at the Oyo state high court,  Ibadan, number I/655/WD/2019 seeking dissolution of her marriage to her husband, Babatunde.

Due to incessant harassment by the Police, Babatunde, through his counsel, Babatunde Akinola,  filed a N10 million fundamental rights suit also at the high court,  Ibadan.

His estranged wife, Temilade, the Inspector General of Police (IGP),  Commissioner of Police, Oyo State, Divisional Police Officer, Divisional Police Station, Apata Ibadan,  ASP Shittu, the Divisional Crime Officer, Divisional Police Station, Apata and Investigation. Police Officer, Divisional Police Station, Apata, Ibadan are first to sixth respondents in the suit.

He sought the declaration of the court that his arrest,  harassment coupled with the purported investigation  by the officers of the third respondent on August 19, 2020 within the high court premises at Ring Road, Ibadan for unfounded allegations by the first respondent is a gross violation of the applicants rights under the 1999 Constitution as amended and an attempt to deprive him of his right to freedom of movement and liberty.

He also sought an order of the court restraining the respondents from tampering with his rights under the 1999 Constitution, as amended.

Coincidentally, the two suits found their way into the docket of Justice Mashud A. A. Abass.

In the course of trial, parties agreed to settle and came up with a six-point settlement terms.

The terms of settlement stated in part: “that the petitioner shall withdraw all allegations and charges against the respondent in court and also be restrained from further future harassment or arrest of the respondent.

“That  any other suites filed by the parties shall be withdrawn upon the order of this honourable court.”

Counsels to the parties urged the court to adopt the six-point terms of settlement as judgment of the Court.

Delivering judgement in the matter Justice Abass held: “The parties in this case in the special circumstances of the case,  have filed terms of settlement today 20th of November, 2020. Counsels on both sides have urged the court to make the terms of settlement as judgment of the Court in this case and dissolve the marriage between the parties in view of the circumstances of this case. I hereby make the terms of settlement entered into in this case and the judgment of the Court in this case.

“To this end, this court hereby hold that the marriage between the parties in this case have broken down irretrievably.  An order Nisi shall become  absolute at the expiration of 90 days from the date of this judgment.

Are songs sung in churches protected by copyright laws? Who owns such rights? Can a musician use a church song in a record without permission? What is the position of the law? A partner at Punuka Attorneys & Solicitors Nnamdi Oragwu and an associate Deborah Okpiaifo examine the issues.

Popular artistes KCEE and the Okwesili Eze Group were recently sued by Sir Jude Nnam for the alleged copyright infringement of the song ‘Solumtochukwu’  which was purportedly included in the compilation of songs in their ‘Cultural Praise’ album.

Sir Jude Nnam alleged that he composed the song in 2001 and the artistes adapted, produced, distributed, marketed, advertised, and performed the song to the public without his consent.

The Federal High Court granted an interim injunction restraining the defendants from dealing with the song pending the determination of the substantive suit.

Although the case is yet to be decided, it has raised issues around the ownership of ‘church songs’, and the possibility of copyright infringement on songs many of which are popularly used by religious bodies. The dispute has also generated deep thought on several other matters pertaining to religion, music and copyright.

What is church or Christian music and what indeed makes a song church/Christian music? In recent times, old catholic hymns and songs are classified as boring by the younger generation but the introduction of the gong (ogene) to its beat seems to have breathed new life into these hymns/songs.

Also, the incursion of popular artistes into reproduction of some of these songs seems to be revolutionary. One then wonders whether the messenger matters in church/Christian music or if it’s just the message or lyrics that is important.

The jury is still out on whether Fada Fada by Phyno and Jerusalema by Master KG both of which have been widely played and danced to in various churches in Nigeria are church/Christian music. To manage the arguments, refuge is best taken in the bible verse Mark 9:40 “for whoever is not against us is for us”.

Church or Christian music refers to songs which express personal or communal belief regarding the Christian faith. Their origins date as far back as biblical times, even before Christianity was a known religion.

From a Christian perspective, church music includes any song which refers to the Christian gospel or expresses belief in God. Churches and Christians in general often use these songs without regard to copyright considerations. This is, in part, due to the belief that a church song belongs to the church, and not any individual.

The early church laid heavy emphasis on ideals such as fellowship and communality rather than personal ownership of property.  The Bible also makes several references to Christians’ duty to propagate the faith without expecting ‘earthly’ rewards. Thus, there are misconceptions about the applicability of  copyright principles to church music.

What is Copyright?

Copyright is a class of intellectual property rights that protects literary, musical, artistic works and cinematograph films. In Nigeria, copyright is governed primarily by the Nigerian Copyright Act 2004, which is administered by the Nigerian Copyright Commission (NCC). Under the Act, a work is automatically protected provided it meets these criteria:

• It is original;
• It is expressed in any fixed medium;
• The author is a Nigerian citizen or company domiciled in Nigeria or in a country which is a party to an obligation in a treaty or other international agreements to which Nigeria is a party, or
• The work was first published in Nigeria.

Copyright protection confers two classes of rights; moral rights and economic rights. Moral rights are the rights to attribution (to be acknowledged as the author of the work) and the right to integrity (to prevent the work from being distorted). Economic rights refer to exclusive control over the distribution, publication, reproduction or adaptation or performance of the work.

Under Section 9 of the Nigerian Copyright Act, the creator/author of the work automatically owns the copyright. This is irrespective of whether he was commissioned to do so (unless otherwise stipulated in a contract). This differs in some other jurisdictions. In the U.S, under a work-for-hire agreement, the commissioner (the person who paid for the work) usually owns the copyright.

Ownership of copyright in a song may be one or more persons. The songwriter who writes the sheet music, the artiste(s) who sings it and the record label that distributes it may all be co-holders of copyright, depending on the contracts governing the transaction.

A copyright holder/owner may transfer their copyright via assignment or grant a licence to deal with the work. Copyright infringement occurs when a person uses a work without authorisation from the copyright holder. This ‘use’ refers to taking an action which is within the exclusive control of the copyright holder.

Under copyright law, church music, as with other types of music, is copyright-protected material, and the right to use them or authorise their use, lies with the copyright holders. This is in spite of the fact that some songs may have become so widely used by a particular set of Christians that they are ascribed to that set.

The law, however, in a bid to balance the interests of the right holders with the public’s need to have access to copyrighted works, provided several exceptions to copyright protection in the second schedule to the Act, which include:

• Fair dealing
• Parody, pastiche or caricature
• Educational use
• Inclusion in a broadcast of an artistic work situated in public
• Communication to the public of work in a place where no admission is charged in respect of the communication, by any club whose aim is not profit-making
• Public domain- where the term of copyright protection  has expired, a work enters the public domain and may be freely used. The term of protection is 50 years after the death of the author for a musical work and 70 years after the recording was made, for a sound recording.

The main ways religious organisations interact with intellectual property (IP) is through public performance/communication during religious services and reproduction or adaptation of works.

Where music is sung and/or the lyrics projected during a religious service, this use is public performance or communication to the public. Where the song is copied or remade in any form or compilation, this is reproduction. Both uses raise the risk of liability for infringement.

A landmark foreign decision on the interaction of religious bodies with IP was given in the Chicago Catholic Archdiocese case (506 F. Supp. 1127 (N.D. Ill. 1981), Catholic churches in Chicago routinely copied out hymns from hymnals published by FEL Publications.

FEL issued an annual copying licence for this practice, but the churches did not subscribe to it, and continued to copy the hymns. FEL subsequently sued for copyright infringement and was awarded over $200,000 in damages.

There is also the recent dispute between the Redeemed Christian Church of God (RCCG) and songwriter Akande Akinbode, where the latter alleged that the RCCG’s Praise Team infringed on his copyright by including his song ‘I Will Never be Ungrateful’ in their album of praise songs. However, the case is yet to be decided in court.

Religious bodies may argue that their use is covered by the fair dealing exception to copyright protection. Fair dealing is not expressly defined in the Nigerian Copyright Act. The Act simply refers to fair dealing for the purpose of research, private use, criticism or review or reporting of current events, provided that any public use be accompanied by an acknowledgement.

There is, however, a dearth of Nigerian judicial pronouncements on the concept of fair dealing, so in the event of a dispute, regard will be had to foreign cases. English courts have stated that the issue of fair dealing should be decided on a case-by-case basis, considering factors such as the amount of the work used, the economic effect on the right holder and the purpose of the use.

In American copyright law, a similar concept, ‘fair use’ is also decided on a subjective basis. The case of Google v Oracle (https://www.supremecourt.gov/opinions/20pdf/18-956_d18f.pdf) is the American courts’ latest landmark pronouncement on the issue of fair use. In that case, the supreme court held that Google’s copying of several thousand lines of code from Oracle’s Application Programming Interface qualified as fair use.

The court considered (1) the purpose of the use- it was held to be ‘transformative’ use, having led to the development of the widely used Android software (2) the amount copied in relation to the work as a whole- the 11,500 lines copied amounted to about 0.4% of Oracle’s software (3) the nature of the copyrighted work (4) the effect on the market and (5) the intention of copyright law.

There are, however, no guarantees on the efficacy of the defence of fair use as each case is decided based on the peculiar facts. One may also attempt to rely on the Act’s exception for communication to the public by a non-profit ‘club’ at a place where no admission is charged. However, the Act does not define what a non-profit club is, or whether it includes religious organisations.

Under American law, there is a specific protection for religious bodies in Title 17 of the U.S Code, Section 110. This law provides for public performance of musical works during service at a place of worship or other religious assembly, as an exception to copyright protection.

The best way to fill the lacuna in the Nigerian law would be to include protection for religious bodies, as the American law has. However, in the current absence of such a provision, the safest option would be to obtain a blanket licence from one of the collective management organisations for public performance, and licences from right holders for reproduction or adaptation.

Collective management organisations are non-profit bodies or associations which administer copyright and collect royalties on behalf of right holders. In Nigeria, for instance, we have Copyright Society of Nigeria (COSON) and Musical Copyright Society of Nigeria (MCSN) which administer copyright for music.

The aforementioned cases illustrate the changing landscape of religious music, as right holders become more assertive of their rights. In summary, to minimise their exposure to liability for infringement, religious organisations should note the following points:

• Copyright subsists in every song, religious or not, regardless of how well used it is (except if it is in the public domain).
• You need authorisation from the right holders to use a song. For instance, to copy it or reproduce it in any form or include it in a compilation.
• Common ownership of ‘church songs’ is a misconception and is a doorway to liability. This is the position even where the song was composed by a member or staff of the church. To transfer copyright from the author to the church, the parties need to execute an assignment agreement.
• Religious bodies must engage legal services to advise on intellectual property matters.

 

• The authors can be reached via info@punuka.com

With just one year left of his five-year law programme, Oyeleke Samson Oyeniran was destined for a Third Class degree at the Olabisi Onabanjo University. But summoning a burst of academic determination, he got out with a Second Class (lower division). A year later at the Nigerian Law School, Kano Campus, he vowed to achieve nothing less than the best result. Oyeniran tells ROBERT EGBE how he conquered the Bar Finals.

My name is Oyeleke Samson Oyeniran. I am from Iwo Local Government Area (LGA) of Osun State. I was born into a polygamous family. My parents got separated after my birth, so I was raised by a single disciplinarian mum. My dad was a retired school teacher and a businessman. My mum is a nurse and we are four guys raised by her. I am the last born among the four, although I have younger half-siblings on my dad’s side.

Going from 2nd class lower to 1st Class 

I attended Olabisi Onabanjo University, Ago-Iwoye Ogun State and Nigeria Law School, Kano Campus. Interestingly, I graduated with a Second Class (lower division) from the university in 2015 and First Class from the law school in 2016. At the university, I was distracted by a lot of activities and I paid little attention to my books. It was when I was in part four that I realised I would graduate with a third class if I did not review my activities. Despite my resolutions, I couldn’t move past the 2:2 because my first to third-year results were terrible. However, when I resumed law school, I knew this was a good opportunity to change this average boy narrative. I put up an extra effort in reading; I prayed more and maintained my focus. All thanks to my parents, friends, reading partners and God.

Nollywood made me think lawyers were occultic, used charms 

There wasn’t any lawyer in my family, before my Call. The first time I visited court was during my externship days at the office of my principal, S.A Oyediran in Iwo, Osun State.

I grew up in a neighbourhood where lawyers were not common. Unfortunately, Nollywood gave us a wrong narrative of what law is all about. So, I knew little about law. I used to believe lawyers were occultic people that used charms to work. I had told myself that I would study mass communications.

How I found myself studying law

However, when it was time to write the Unified Tertiary Matriculation Examination (UTME), my Uncle, Dotun Akinpelu advised me to pick law because he thinks I am outspoken and can make a good career in law. I reluctantly agreed and that was how I found myself studying law.

Law school, my most precious moments

Law school was one of the most interesting parts of my life. I came with a clear sense of purpose. I wanted the best, nothing less than excellent. I worked my life out for it. Starting from day one, I started working hard. I had no time for any friendship or recreation. I was either in class, Chad Hall (Reading hall at Nigerian Law School, Kano) or chapel. I think it was one of the most precious moments of my life. I enjoyed every bit of it.

Tears of joy

When I saw my result, tears were rolling down my eyes because I couldn’t believe that a small boy from Iwo could line up with scholars across the country. On the other hand, I wasn’t surprised because I knew God rewards prayers and hard work. Well, success is like a market with many ways that lead into it. I don’t think there is a secret other than hard work and prayers. When I was in Kano, Chaplin (Rev. Dickson) told us to ensure we read well, prayed well, slept well and ate well. Once you satisfy your conscience that you have done the best you can do, leave the rest to God.

I must also note that I am a product of great friends in law school. I had great and like-minded people around me and it made things easier. I can’t mention everybody’s name here, but they know that I love and appreciate them.

I read law school course materials six times

Bar final comes with fear and a lot of people have several stories to tell, but I didn’t take it that way. I saw it as a normal examination. I wrote UTME and I passed. At the university, I wrote exams from part one to part five and I passed everything, so why couldn’t I pass the bar finals? I didn’t allow the fear to get to me. I knew I would pass from day one. The struggle was about the grade I would go home with. During my externship, I had read all the five courses back-to-back like six times. I had treated past questions from 2008 to 2014 like six times. I got prepared before the exam even came. So, I had little to worry about during the exams. I only revised and engaged in discussions with my friends. If I had the opportunity of going to law school again, I would still choose the same lifestyle I lived. Focus on my books, pray and have academic discussions with my friends.

Judge, SAN or Prof?

I would choose to be a SAN and probably a Professor of law like Prof Yemi Osinbajo (I adore him a lot and hope to meet him one day). I like court and research. I write briefs a lot and I engage in research. I have published several papers in law journals across the world. I am currently working on building an electronic library for lawyers in Nigeria; the platform is called Learned Library, it requires a lot of research. I do it joyfully.

Marrying a lawyer?

I would. Lawyers are intelligent beings (Not because I am one though). There are a lot of specialities you will find in lawyers. Anybody looking for a wife or husband, I recommend you get a lawyer that fears God.

A chance at a second career

I love video games, I love writing works of fiction, I love research and if good food can be regarded as a hobby, I think I like it too. If I were to have a second career, I would try to learn something new from other fields. Probably I would like medical or engineering field.

First-class, but jobless

A lot of things need to be fixed in this profession. For some months, I was jobless even with my first class because I wasn’t getting good-paying offers and I didn’t want unreasonable wages.

Regulation on lawyers’ minimum wage needed

The challenge of junior lawyers and principals has been there for a long time. There should be a regulation (minimum wage base on location) in that regard to lay it to rest once and for all. If you can’t afford to pay a junior, please don’t bother to employ any.

Interestingly, some of us are becoming seniors and will start employing; are we going to treat the younger ones well? The people that are not paying now were once juniors and I think they complained during their time too.

A strong regulation regulating the affairs of law firms, lawyers’ charges and employees’ salaries need to emerge. Some of our colleagues are charging ridiculous fees and it is really bad.

I think Nigerian Bar Association (NBA) President Mr Olumide Akpata recently set up a committee in that regard. I hope there will be a town hall meeting; I will definitely be part of it.

First solo court appearance

My first experience was before a judge in Uyo when I was a National Youth Service Corp (NYSC) member in the law firm of Emmanuel Archibong & Co. I woke up around 3am, read the file again and again. I wasn’t afraid though. I got to court in Wellington Bassey Road around 7:30am. Unfortunately, my case was called around 3pm. I moved my motion and adumbrated for like 10 minutes.

It was a great feeling. The judge was nice; the counsel on the other side was nice too. I called my mum and shared with her how I made my first personal appearance.

Most embarrassing court experience

During my LLM days at the University of Ibadan, I went to the Court of Appeal, Akure division for my learned principal, S.A Oyediran Esq. It was exam time, so I didn’t read the file, I just went to court intending to adopt our argument.

Counsel on the other side wanted to move a motion and I was asked if we were served. I didn’t have an idea. I started searching through the file. I was totally uncoordinated that day. My Lords asked me a couple of questions about the appeal, I didn’t have any idea.

I got the lashing of my life that day and I nearly cried. For almost 18 minutes, the justices were telling me how disappointed they were with the manner I was conducting the case, how the standard of the profession had fallen, asked when I was called and a lot of other questions. In fact, My Lord the (Presiding Justice) told me not to come to her court again. I felt so bad, but it’s a story today. I have appeared several times before her after that time and everything went well.

Nigerian legal system challenges and how to solve them 

A lot has to be done from the government end. We need to call stakeholders’ meetings and review this long litigation process.

Again, the issue of lawyers’ charges is something else. I rejected a deed because the client wanted to pay N50,000 for a N32million property. Meanwhile, I was told another lawyer did it for less. It’s not nice. We need to ensure uniformity in our charges.

Again, lawyers need to do more research. Books, laws and research materials are fast becoming unaffordable now. These are the raw materials that we need to succeed. I think we need to digitise law practice. Some friends and I have built a platform called ‘Learned Library’ where lawyers can access research materials like cases, sample drafts, laws, dictionaries, articles, electronic textbooks free of charge. We just want people to have more access to those materials and build a better practice.

The judiciary is again enmeshed in w the crisis rocking some political parties. As at the last count, no fewer than three judges will be facing a panel of the National Judicial Council (NJC) for allegedly granting contradictory ex parte orders and counter-orders. ADEBISI ONANUGA looks at how this development, which Bar and Bench leaders believe is ridiculing the judiciary, can be curtailed.

Barring unforeseen circumstances, three judges will appear before a panel of the National Judicial Council (NJC) this week for issuing ex parte orders in political cases brought before them from other jurisdiction other than the one in which they sit.

The judges’ invitation followed last Monday’s meeting between the Chief Justice of Nigeria (CJN) Ibrahim Tanko Muhammad and seven Chief Judges (CJs).

The seven CJs head the jurisdictions – Rivers, Kebbi, Cross River, Anambra, Jigawa and Imo states and Federal Capital Territory (FCT) – where questionable ex parte orders were issued in political cases within the last two months.

The names of the three high court judges and the divisions in the seven states in which they sit have not been officially stated, they are in the public domain. Letters inviting them to appear before the NJC panel were delivered to them last week.

Controversial ex parte orders

The judiciary, like it has been accused of doing several times before, seemingly joined the fray of the crisis rocking some political parties in the country recently by indiscriminately granting orders and counter-orders.

Desperate politicians have traversed courtrooms in different parts of the country to obtain orders favourable to their cause, but in questionable circumstances.

Court restrains Secondus

For instance in just one week, three courts in different states also issued counter-orders on the matter of the office of the National Chairman of the Peoples Democratic Party (PDP) Uche Secondus.

A Rivers State High Court in Port Harcourt on August 24 restrained Secondus from parading himself as PDP national chairman.

Vacation judge Justice. O. Gbasam of the Degema Judicial Division granted the order in suit No: PHC/2183/CS/2021 filed by Ibeawuchi Ernest Alex, Dennis Nna Amadi, Emmanuel Stephen and Umezirike Onucha against Secondus and the PDP as first and second defendants.

The judge, after reading the affidavit in support of the motion of ex parte,  the written address and hearing the submission of H.A. Bello, counsel to the applicants, granted the interim injunction restraining Secondus  from parading himself as a member of the second defendant or the national chairman of the PDP and from performing functions related  to the office of the chairman, among other functions, pending the hearing and determination of the motion on notice for interlocutory injunction.

Kebbi court restores Secondus as PDP National Chairman

Barely three days later, a Kebbi State High Court in Birnin-Kebbi restored Secondus as PDP national chairman.

Justice Nusirat Umar said she was satisfied after reading the affidavit of the respondents that an interim order should be granted on Secondus’ purported suspension pending the determination of the case.

Umar gave the order in suit KB/AC/M. 170/2021.

The judge granted leave to Secondus  to continue exercising all the constitutional powers of the office of PDP Chairman as enshrined in both the 1999 Constitution and the Peoples Democratic Party’s constitution pending the hearing and final determination of applicant’s motion on notice.

Three concerned members of the party – Yahaya Usman, Abubakar Mohammed and Bashar Suleman – are the claimants/applicants in the case while Secondus and the PDP are the defendants/respondents.

Another court restrains Secondus 

Barely 24 hours after Secondus’ reinstatement, and resumption at the party’s headquarters in Abuja and just as he was set to preside over the National Executive Committee meeting of the party, another high court in Calabar, Cross River State, again issued an interim order restraining him from resuming office as PDP chairman.

Justice Edem Kooffreh, gave the order while ruling on a motion ex parte marked HC/240/2021, and filed by an aggrieved member of the party, Enang Wani. The PDP and Secondus are respondents in the suit.

The multiple court orders frustrated peace-making move by some elders within the party.

Imo APC crisis

Justice Valentine Oriji of a Federal Capital Territory (FCT) High Court on Friday, July 30, 2021 restrained the Imo State chapter of the All Progressives Congress (APC) from holding the party’s congresses scheduled for Saturday, July 31 in the state.

The judge warned the APC not to proceed with the congresses in Imo State pending hearing of a suit brought before the court by the applicant, Okey Anyikwa.

Anyikwa, who is APC chairman of Ideato South Local Government Area, is believed to have filed the suit at the behest of his political father and former governor of Imo State, Rochas Okorocha.

The applicant approached the court for an injunction restraining the APC from going ahead with the congresses because of the judgment of the Appeal Court that upheld the tenure of the State Executives of the party elected in 2018.

Justice Oriji, threatened to invalidate the outcome of congresses if the party disregards the position of the Court.

He also ordered that all actions regarding the APC congresses in the state should be stayed, pending the hearing of the application slated for August 10.

Parties in Imo APC crisis get restraining order on INEC

As if that was not enough, parties in the Imo APC crisis also on Monday, August 2, 2021, proceeded to Abuja and convinced Justice Babatunde Quadri of the Federal High Court, Abuja, to restrain the Independent National Electoral Commission (INEC), the APC and the national Chairman of the APC from conducting any congress in the state until August 21.

The court also ordered the plaintiffs – Osita Izunaso, Ben Uwajimogu, Mathew Omegara, Hilary Ekeh and Patrick Uzoukwu – to maintain status quo until August 21.

The order restraining the defendants followed an application by Ahmed Raji, counsel to the plaintiffs.

Raji had asked the court to order that all parties be restrained from conducting any primaries in the state, ward or local government until the next adjourned date of the suit.

He said if such order was not made and the defendants went ahead to conduct the primaries before the next adjourned date, the suit would become an academic exercise.

Although the defendants were duly served with an order of court stopping them from conducting congresses on July 20, Raji told the court that they went ahead to conduct the congresses.

Raji, on behalf of the plaintiffs, had on July 23, filed a motion ex-parte praying the court to set aside the purported congresses of the party in Imo State.

He had therefore asked the court for an order of injunction restraining APC and its chairman from recognising and swearing in those purportedly elected at the congresses.

Justice Quadri, in a bench ruling, ordered all parties in the suit to maintain status quo and not conduct any primaries until the next adjourned date of August 21.

Abuja High Court restrains Soludo

A chieftain of the All Progressives Grand Alliance (APGA), Okoye Nwabuogo, on July 6 also approached the Federal High Court in (FHC) Abuja seeking an order of the court to set aside the election and nomination of the former governor of the Central Bank of Nigeria (CBN), Prof. Charles Soludo, as the Anambra State candidate of the party.

The suit marked FHC/ABJ/CS/596/2021, was filed on July 6, 2021 by Nwabuogo’s counsel, Okoro Nkemakolam.

The APGA chieftain had prayed the court to restrain Soludo from parading himself as the flag bearer of the party for the election scheduled to hold November 6, 2021.

He also prayed the court for an order of injunction against INEC from accepting or recognising Soludo as the APGA candidate for Anambra State.

Counter order

But an Anambra High Court sitting in Awka ignored the order of the Abuja FJHC and ordered the Independent National Electoral Commission (INEC) to restore Soludo as the candidate of the All Progressives Grand Alliance (APGA) in the November 6 governorship election.

Justice Charles C. Okaa who made the order on Monday, July 19 also held that Soludo and his running mate were the authentic choices of the party.

Also  on June 30, 2021, Justice Musa Ubale of the Jigawa State High Court sitting in  Birnin Kudu gave a consequential order mandating INEC to accept any person brought by one Jude Okeke as the All Progressives Grand Alliance (APGA) candidate in the November 6 Anambra State gubernatorial election.

Without APGA being joined in the suit and without the national chairman, Chief Victor Oye, being made aware of the suit, Justice Ubale ruled that Okeke had taken over from Edozie Njoku as the APGA chairman. The suit filed in Jigawa, according to observers, was to oust Soludo from the governorship race in Anambra State.

Appeal Court overturns Soludo’s disqualification

On August 4, the Court of Appeal, Awka Division, dismissed an application challenging the judgment of an Awka High Court of Anambra State, which declared Soludo as the APGA candidate in the November 6 gubernatorial election in the state.

Justice Chioma Nwosu-Iheme ruled on a motion by Chike Onyemenam counsel to Jude Okeke, who claims to be APGA national chairman, seeking to stop the execution of the order made earlier on July 18 by Justice Charles C. Okaa of the Anambra State High Court, Awka directing INEC, to recognise Soludo, as the APGA candidate in the November 6 gubernatorial election in the state.

The Justice of the Court of Appeal recommended punishment for the judge of the Jigawa State High Court, Justice Ubale of Birnin Kudu, and his counterpart in the Imo State judiciary, Justice B. C. Iheka, for what she described as their unprofessional conduct by dabbling into the Anambra State gubernatorial election controversy and giving consequential judgments on it.

Abuse of ex parte orders, a challenge

A former Director-General of the Nigerian Institute of Advanced Legal Studies (NIALS), Prof. Epiphany Azinge (SAN), said though the phenomenon of ex-parte orders was not against the law, its abuse remains a major challenge for the country.

Azinge, while answering questions on conflicting court orders on Arise Television News Channel, urged the National Judicial Institute (NJI) to initiate programmes to educate judges, especially junior ones, on the deployment of ex parte motions to avoid embarrassing the judiciary.

He also argued that given the horde of information in the public space, no judge should claim not to be aware of orders given by courts of coordinate jurisdictions in the country.

Speaking against the backdrop of the incessant use of ex-parte motions, he stressed that with the availability of social media, it was almost impossible not to be aware of happenings across the country, especially on critical national issues.

Azinge applauded the Chief Justice of Nigeria for taking ”proactive measures to send a clear signal, to the chief judges, that it should not be business as usual,” he noted.

But he cautioned that the CJN must draw a line and create a delicate balance, “so that it doesn’t appear that he is superintending or supervising other courts, for the sake of the independence of the judiciary.”

The National Judicial Institute (NJI), he said, should by now “be putting out a programme for retraining of some of the judges, as far as this issue is concerned.”

He also canvassed the need to appoint much more experienced judges as vacation judges, “so that Nigeria would not be confronted by this abnormally, especially on political matters again.”

Why judges can’t feign ignorance orders of courts of coordinate jurisdiction

Azinge illustrated the point as to why judges could not claim ignorance of orders of courts of coordinate jurisdiction, with a poser.

He said: “Ask yourself, what could be the allocutus? Some of them may argue, with a lot of benefits that they never heard of the order from Port-Harcourt or Kebbi as the case may be. They may argue, but not in present times, not with the social media, not with the internet, not with the avalanche of information on parade all over the country.

“But even at that, the benefit of the doubt should be given to them to an extent, in the sense that the judiciary should now be thinking of how to harmonise information flow and communication flow amongst the judicial arms.

“This is so that whatever is happening in one part of the country automatically will filter through to the other parts of the country. This way, no judge can claim that he or she did not know what happened in Port Harcourt or what happened in Kebbi,” he argued.

He urged the judiciary not to allow itself to be used and make a decision to stop the abuse of ex parte orders, adding that it might be important to warn erring judges rather than make scapegoats of them.

Centralisation of reporting of court judgments

Founding partner of Primera Africa Legal, Boma Ayomide Alabi (SAN) advised that to avoid recurrence of conflicting orders, law reporting should be centralised to enable judges to stay current on happenings in various courts

“It can be prevented easily. It is just a question of centralising our reporting and law reports, having it reported in real-time and giving the tools to our judiciary to enable the researchers conduct research and quickly get information.”

Alabi noted that law reporting for now, is not centralised.

“Something may be happening in Lagos and someone is sitting as a judge in Abuja, for instance. The ruling or judgment will not be reported in the Federal Capital Territory and the judge may honestly not know that this matter has gone before a judge in Lagos; the same parties and the same matter, except the lawyer or parties bring it to the judge’s attention. That is certainly a step that can be taken to try and avoid such conflicting issues.” she said

‘Sanction erring judges’

The NJC, Alabi noted, has a crucial role to play in the situation.

According to her, the Commission can investigate all complaints against judges on this issue and bring out the details of what actually transpired to reassure Nigerians and the litigating public and shore up their confidence in the system.

She said if in the course of the investigation, evidence of judicial rascality is found, the judge can be sanctioned or, in extreme cases, dismissed.

Other lawyers also condemned the situation.They noted, among others, that all the questionable orders were issued ex-parte with little regard for principles of territorial jurisdiction, caution expected of a judge in the handing of an ex parte hearing, and the need for a court to stay clear of a matter whose subject matter is already pending before a court of coordinate jurisdiction.

Those who spoke to The Nation included a former President of the Nigerian Bar Association (NBA) Dr Olisa Agbakoba; Louis Alozie (SAN); Kunle Adegoke (SAN); and Professor of International law, Akin Oyebode.

Others were and Deputy Vice Chancellor, Afe Babalola University, Ado Ekiti (ABUAD).Prof Damilola Olawuyi, and a Lagos legal practitioner, Wahab Shittu.

‘Conflicting decisions embarrassing’

According to Dr Agbakoba, the matter of conflicting decisions by judges of coordinate jurisdiction on the same questions is embarrassing.

Supports CJNs decision to stamp out misconduct

‘The action of the CJN is absolutely necessary to stamp out this gross misconduct on the part of some judges.

“It is hoped that the strongest possible sanctions will be imposed if it is established that some of these judges abused their oaths of office” Agbakoba added.

‘Why a judge can’t fetter his powers within his court if…’

Prof Oyebode said a judge must be in charge of proceedings in his court.

He said the grant of ex parte applications is at the discretion of the judge, either in an effort to maintain the res, or the facts in issue. He said a judge has the prerogative to determine whether or not to grant the request of counsel in a matter that is going to come before him.

“That discretion we are talking about can, of course, be abused out of ignorance or out of mischief.

“So, the question you are posing was the question posed by the old Roman thinker, ‘Quis custodiet ipsos custodes?’ meaning ‘Who will guard the guard himself?’ So we are saying how do we judge the judge? It is a very recondite issue and we respond as we uphold the principles of the due process of law, we may not be able to circumscribe the jurisdiction of the court with respect to ex-parte applications. So it depends on the circumstance, it depends on the propriety of the application,” he said.

The don explained that an ex parte order will not last forever.

“It has a limit of seven days at the most following which the other party must be put on notice, must be properly served. So, it is not an absolute order, it is a preliminary, an interim order to protect the administration of justice.

“So, it is within the discretion of the judge but the judge has to be highly circumspect whether or not to grant such an application. I don’t see how we can continue to apply due process of law and now hamstring the judge to fetter his powers within his court in respect of a matter properly brought before him.

A judge must be circumspect, he must be able to separate the issue, he must be able to decide whether it is fit and proper to grant an ex parte order because a court’s jurisdiction is exercised dually. It is in two perspectives. One is the territorial jurisdiction of the judge and his power over a matter occurring within the territory of a court. The second of jurisdiction is with respect to subject matter. The judge must be able to decide whether it is within his jurisdiction,” he added.

‘Judges being politically influenced’

Alozie noted that the problem is most commonplace in political cases. “This obviously suggests that our judges are not immune to influence by politicians. It gives room to suspicion that the judiciary is corrupt,” he said.

Alozie recalled that in the Second Republic, “the doyen of the Nigerian legal profession, late Chief FRA Williams (SAN), was of the view that where such occurs, the orders have cancelled out themselves. In this case, the party affected has nothing to obey or disobey.

“Under our legal system, any person aggrieved with a decision of the court, either an order or final judgment has a remedy of appealing against such judgment/order. It is an act of indiscipline for a party against whom an order is made to shop for his own order from another court.

“The most embarrassing aspect is where the orders are secured from courts in other states or Abuja, notwithstanding that the jurisdiction of every court of law is limited to its territorial boundaries.”

‘Courts ignoring territorial boundaries’

He contended that these days, the courts in Abuja, both Federal High Court and High Court of the Federal Capital Territory (FCT) “do not respect the constitutional provision regarding territorial boundaries.

“They operate as if they have the powers to entertain any case brought before them and issue all manner of orders against persons and authorities outside their jurisdiction.”

Alozie argued that every court and legal practitioner ought to know that no court of coordinate jurisdiction can sit on appeal against the judgment and orders of another court, yet the rascality continues.

“This has brought the judiciary to avoidable scandal and opprobrium by members of the public, rightly though.”

He lamented that it is now common to see cartoons on what is termed ‘injunctions for sale’ or even ‘justice for sale’ noting that the twin causes of this anomaly are corruption and poor knowledge of the law.

According to him, politicians “all over developing countries are desperate and go about looking for judges to compromise.”

Alozie urged the NJC to restore the confidence of the citizens in the judiciary, by sanctioning erring judges, while lawyers should be sanctioned by the Legal Practitioners Disciplinary Committee.

‘Appoint judges on merit’

Another way to stem the tide is for the appointment of judges to be based on merit only, instead of cronyism,” Alozie said.

He added: “Judges who distinguish themselves at the bar and have good morals are better equipped to resist the tempting offers of politicians and stick to their oaths of office. Our judges can only be immune to external influences when they are men of character and learning.

“Punishment for breach of oath of office by their Lordships or issuing of scandalous conflicting orders should include compulsory retirement for the judge and also disrobement of the erring lawyer. These measures will go a long way to serve as a deterrent to others and thus checkmate such abnormal decisions”.

Be wary of cases of political parties, punish politicians

Adegoke attributed the problem to the desperation of politicians “to obtain favourable orders at the expense of the integrity of the judiciary and the entire nation.”

“They don’t mind denigrating the hallowed temple of justice once their ego would be assuaged. It shows the poor quality of the mentality of the people that are leading our political parties and invariably the quality of our leaders.

“It is disturbing to see the way Their Lordships of the High Courts have been quite unwary of such desperate shenanigans of politicians. It is destructive of the entire system and throws the policy into utter confusion. It is contempt of Court that should be severely punished.”

To check the “unsavoury” occurrence, he advised that judges to avoid issuing ex parte orders when the case challenges the act of a political party which is linked with the national secretariat of the party.

“Obtaining an order in Akwa Ibom or in Ringim or Abeokuta to restrain an act of the national office could lead to a situation where there will be conflicting orders. It is rather better for the court to direct the plaintiff in such a case to put the defendants on notice. Our judges need to be more careful when confronted with such cases

“Then, politicians who are aware of an existing order issued by one court but rush to another to obtain a contrary order should be severely punished by way of contempt proceedings. Such approach would definitely put such desperate politicians in check,” Adegoke said.

Conflicting orders an affront to judicial sanctity, integrity

For Prof Olawuyi, the issuance of conflicting orders by courts of coordinate jurisdiction is not only an affront to the sanctity and integrity of the judiciary, it is also a threat to the proper and effective administration of justice in Nigeria.

“In layman terms, it can be likened to the same judge saying two completely different things at different times on the same subject,” he said.

Olawuyi, who is also co-Chairman, Legal Education Committee of the Nigerian Bar Association (NBA), said one of the most elementary principles of law is the coordinate jurisdiction rule, which posits that judges of coordinate jurisdiction or equal standing, should not overrule each other’s decisions.

He explained that the aim is to prevent a situation whereby legal questions that have already been determined by the same court are argued and decided by another judge of the same court or a court of equal strength.

“In the event of any contrary view, a coordinate Bench can only refer the matter to a superior court for consideration. The aim is to eliminate the possibility of inconsistent judgments,” Olawuyi said.

According to him, the issuance of conflicting orders by courts of coordinate jurisdiction “is therefore such a misnomer and a breach of judicial discipline that you can hardly find in any other common law jurisdiction worldwide.”

Lack of judicial discipline  

The don regretted “the progressive erosion of judicial discipline in Nigeria.”

He said judicial discipline is based on the time-honoured common law principle of comity of courts in which courts mutually recognise and show utmost courtesy to their learned brothers. According to him, lack of judicial discipline manifests in form of corruption, abuse of judicial authority, conflict of interest, and succumbing to external threats in the administration of justice.

He argued that prompt action, and public disclosure of sanctions meted out on erring judicial officers will send a strong message to judicial officers at all levels. It would also go a long way to restore public confidence and trust in the judiciary.

Need for technology innovation and modernisation of courts

Olawuyi said events in the system had demonstrated the urgent need for technology innovation and modernisation of our courts. He noted that in countries such as Canada, United States and the United Kingdom, courts have searchable and interlinked databases in which decisions made by any court across the entire country can be immediately seen in the computer in front of the judge.

“Such interoperability eliminates any chance of inconsistency by courts of coordinate jurisdiction,” he said, adding that it also reduces any opportunity of courts being misled by unscrupulous parties.

Olawuyi added: “Governments at all levels must urgently provide adequate funding and support to the judiciary to acquire latest technology and modern infrastructure that will reduce analogue documentation in our courts.

Training, capacity development for judges

In addition to meeting the technological, digitalisation, financial and infrastructure needs of the judiciary, the Silk stressed that judicial training and capacity development must be intensified. “The National Judicial Institute is already doing a lot in this regard and even more can be accomplished, most especially to reach courts at the lower levels,” Olawuyi said.

He urged the NJI to work with the NBA, universities, and other stakeholders to urgently implement practical and innovative courses and programmes that will enhance capacity for a fair, timely and effective administration of justice in courts.

“As the co-Chairman of the Legal Education Committee of the NBA, I can assure you that the NBA would be most delighted to support such collaborative efforts,” Olawuyi said, adding that now was the best time to hold judicial officers to the highest standards.

Conflicting pronouncements derogates certainty of law

Shittu reasoned that conflicting pronouncements by courts of co- ordinate jurisdiction on the same subject matter derogates from certainty of law, and constitutes an assault on our justice delivery system.

He said: “Once facts are ascertained, there ought not to be any difficulty in applying the law based on settled  principles in order to enhance the integrity of our judiciary, the last hope of the common man.”

He noted, however, that the development has now attracted the attention of stakeholders in the administration of justice in a manner that will reduce the scourge to the barest minimum.

“The key elements that must never be compromised remain independence, certainty and integrity of our judiciary,” Shittu added.

Law experts from various prosecuting agencies, judges and magistrates met in Abuja on August 25, to strategise on ways to ensure prompt justice delivery in criminal cases.

They considered ways to balance the rights of defendants as captured in Section 36 of the Constitution with the need to prevent delay as envisaged in the Administration of Criminal Justice Act (ACJA) 2015 requiring courts to adopt case management strategies.

Among speakers at the event, tagged “Technical workshop on the balancing of Section 36 of the Constitution and Case Management Hearing (CMH)”, were the acting Chief Judge of the Federal Capital Territory (FCT), Justice Hussein Baba Yusuf; former Director of Public Prosecution of the Federation (DPPF), Mrs. Olufemi Fatunde; Chairman, Nigerian Bar Association (NBA), Abuja, Bulus Atsen; Chief Magistrate Omotola Akindele, Professor Jacob Dada of the University of Calabar and Sulayman Dawodu of the Administration of Criminal Justice Monitoring Committee (ACJMC).

The well-attended workshop was put together by the  ACJMC, with support from the MacArthur Foundation.

Represented by Justice Christopher Oba, the FCT Chief Judge stressed the importance of case management hearing in curbing delay in criminal justice administration process and commended those behind the initiative.

Chief Magistrate Akindele explained the concept of CMH, dwelt on its basic principles and spoke about her practical experience in the deployment of the strategy.

Atsen and Austin Emumejakpor of Austin Laurel Consulting spoke in favour of and against CMH. While Atsen argued that it was against the interest of a defendant, Emumejakpor insisted otherwise.

Atsen noted that while CMH in criminal trial places obligations on both the prosecution and the defence to disclose, to a reasonable extend, the substance of their cases, it impacts parties in different  forms.

“For example, while a Prosecutor may choose to separate charges against a particular defendant at the hearing, the defendant may appear to be forced to only rely on the defences disclosed during the CMH.

“Thus, the requirement for the defence to disclose the nature of its defence at the stage of CMH clearly negates the presumption of innocence as enshrined in the 1999 Constitution and the Sec 135 and 138 of the Evidence Act, 2011 which place the burden of proof squarely on the prosecution.

“The likelihood of self-incrimination is most probable during CMH. Therefore, as desirable as CMH may seem, it is likely to face some constitutional and legislative gridlocks in Nigeria,” Atsen said.

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Emumejakpor argued that “a criminal trial is not a game under which a guilty defendant should be provided with a sporting chance.

“It is a search for truth in accordance with the twin principles that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent

“Requiring a defendant to indicate, in advance, what he disputes about the prosecution’s case offends neither of the principles,” he said.

Emumejakpor was of the view that “the present system, as it stands, provides full cover for criminals and makes it almost impossible to bring criminals to justice.

“Until we appreciate the rationale behind criminal prosecution, that is, to send the innocent free and punish the guilty, which require all persons involved in the criminal justice system to play their roles, guided by ethics, with the over-arching goal to create a good society, we will not make progress but continue to dance on the same spot.”

Prof Dada argued that although the CMH could be rendered adequate by the right of a defendant to remain silent, as guaranteed by sections 35(2) and 36(11) of the Constitution, there are other that could be adopted by multi-stakeholders in the criminal justice sector.

 

 

Managing Partner of Afe Babalola & Co, Mr Adebayo Adenipekun (SAN), has been appointed to the Advisory Board of the Indonesia International Arbitration Center (INIAC).

The appointment is for the 2021-2024 mandate.

With over three decades of experience in active legal practice, Adenipekun is a litigation lawyer specialising in company and commercial law and practice, land and property matters, international law, election petitions and appeals.

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He has acted as sole arbitrator, party-appointed arbitrator and chairman of arbitral panels in several domestic arbitrations.

The SAN has served as lead counsel for the Federal Government at the International Centre for Settlement of Investment Disputes (ICSID) between a foreign investor and the Nigerian government.

Adenipekun is a member of the governing board of the Oyo State Multi-Door Courthouse; a member of the governing council of the Nigerian Institute of Chartered Arbitrators; a member of the Permanent Court of Arbitration at The Hague, and a Fellow of the Chartered Institute of Arbitrators.